MAHIPAL SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) By this writ petition, the petitioners have invoked Extra-ordinary Jurisdiction of this Court to annul an action of the respondent, i.e. BSF authority transferring the case against the petitioners to the Criminal Court for fresh trial after the prosecution has failed -to established the charges by adducing evidence during the summary disposal proceeding under the BSF Act and also to quash consequent re-initiated of the said criminal case by the Criminal Court.

(2.) The brief facts as stated in the writ petition leading to the filing of this writ petition are as follows: On 25.06.1989 at about 6 P.M. when the petitioners were detailed for patrolling duty near an international border outpost, they received information that some contraband goods were being smuggled by some smugglers from Bangladesh to India and vice versa. On receipt of such information, it is the case of the petitioners, that they had laid trap and confronted the smugglers. Some armed smugglers with the help of some local villagers who were advancing towards the patrolling party, even after being cautioned did not stop and attacked some members of the patrolling party including the petitioner No. 1. Situated thus, the patrolling party, more particularly the petitioner No. 1, had to resort to "firing for self defence. Thereafter, the smugglers fled away from the place of occurrence. The party commander then decided to leave the place and when they were about to leave the place, a huge mob encircled the patrolling party. After due warning the party commander had to resort to firing to disburse the unruly mob. Amidst this happenings, the smugglers threw their loads and made good their escape from the place in the darkness. Upon search of the area the patrolling party recovered certain items. Thereafter, on 26.06.1989 the commander of the patrolling party lodged an FIR in the Patharkandi Police Station which was registered as Patharkandi PS. Case No. 174/89 under Sections 147/148/149/379/ 511 of IPC and deposited the seized goods to the customs authority. A special situation report was also sent to the Bn. Head Quarter giving details of the incidents.

(3.) On the other hand the local villagers also lodged an FIR on 25.06.1989 without naming any of the petitioners. In the said FIR it was alleged that some BSF personnel numbering about 15/16 along with 10/12 tribal people trespassed into their shops and tried to forcibly take away 'bidis' and on getting resistance from the people of the market, started indiscriminate firing resulting in death of one Abdul Jobbar and one Rashid Ahmed, besides injuring many others. On the basis of the said FIR, Patharkandi P.S. case No. 173/ 89 under Section 147/148/149/448/302 of IPC was registered. The police upon investigation submitted a charge-sheet in the Court of S.D.J.M. (Sadar), Karimganj on 23.11.1990 in GR Case No. 629/89 against the petitioners.