MD ABDUS SABUR Vs. UNION OF INDIA

JUDGEMENT

(1.) This revision petition is directed against the order dated 4.9.1991 passed by the learned Sessions Judge, Karimganj in Criminal Revision No. 59(3) 9]. It may be Stated that a criminal proceeding is pending being Karimganj P.S. Case No. 305/91 before the learned C.J.M. Karimganj. The case was registered under Section 302 I.P.C. against the three personnel who are members of 97 Battalion of B.S.F., Headquarter Masimpur, Cachar. Before the learned C.J.M., an application was filed on behalf of the B.S.F. by the officiating Commandant of the said Battalion under Section 80 of the Border Security Force Act, 1968, for short, - Tthe ActT and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969, for short, the Rules praying to stay the criminal proceeding pending before the learned Chief Judicial Magistrate and to deliver the above three accused persons for trial by the Security Force Court under the Act. This petition was rejected by order dated 31/7/1991 and a revision petition was filed on behalf of the B.S.F. which was allowed by the impugned order by setting as in the above order of the learned C.J.M. and the court was directed to deliver the accused persons to the custody of the B.S.F. with a Statement as provided under Section 475 Cr. P.c. for trial. Hence, the present revision petition. While issuing returnable rule on 17/9/1991 in the revision petition this court directed Slay of the above impugned order passed by the learned Sessions Judge. An application was filed on 2/12/1991 on behalf of the B.S.F. praying for vacating the said interim Stay order. The matter was heard at length for final disposal of the, main criminal revision petition and also prayer for vacating the Slay.

(2.) The facts may be briefly slated: It has been alleged that on 16/7/1991 at about 7.00 P.M. four B.S.F. personnel of the above Battalion posted at Barapunji Camp went to the house .of one Abdul Noor which is situated about 10 K.Ms. away from the Indo-Bangladesh Border and were standing western side of the house. When the wife of said Abdul Noor came out with her minor child for call of nature, she was surrounded by above B.S.F. personnel and lifted her with criminal intention. She started hue and cry and her husband came out and followed the B.S.F. personnel to rescue his wife. Thereafter, neighbouring people also came out and surrounded, the said B.S.F. personnel, who started firing and killed both the husband and wife and caused injuries to others. One B.S.F. personnel managed to escape and three others were caught hold by the villagers. At about 9.40 P.M. the Officer-in charge, Karimganj P.S. was informed and police registered Karimganj P.S. Case No. 305/9 1 under Section 302 I.P.C. and started investigation, The matter was also brought to the notice of the Deputy Commissioner of the District and as per his direction, the Executive Magistrate accompanied by the Officer, in- charge of the Police Station along with other police personnel rushed to the place of occurrence in the night at about 12.10 A.M. and took the above three, B.S.F. personnel into police custody. They were forwarded to the court and thereafter remanded to the jail custody. The enquiry report was also submitted by the Executive Magistrate to the Deputy Commissioner and the said report is at Annexure-3 to the present petition. It has been alleged in the petition that the B.S.F. personnel were not authorised to do their duties beyond 3 K.Ms. from Internotional border unless they are, called by the District Administration to assit the local police. Various other submissions have been made in the petition which are not necessary to state for the present purpose. As Stated above, a petition was moved before the learned C.J.M. under Section 80 of the Act read with Section 475 Cr. P.C. and Rules 5 & 6 of the Rules.

(3.) According to the Commandant of the Border Security Force on 16/7/1991, a patrol party of the Border Security Force consisting of five constables-challenged a gang of cattle smugglers, towards Indo-Bangladesh border with a flock of heads cattle and the constable Naresh Kumar was grievously injured with spear who resorted to fire, as a result of which two persons were killed. Injured constable was shifted to the Medical College for treatment. It was also Stated that the authority of the B.S.F. decided that the above constable may be tried by the Security Force Court and accordingly requested the learned Court to hand over the arrested persons to the force for trial and to be kept in custody of the Force, with a Statement under Section 475 Cr. P.C. which was rejected as Stated above.