ROMESH BHAI Vs. UNION OF INDIA

JUDGEMENT

(1.) APPELLANT has challenged the judgment passed by a learned Single Judge of this Court on 16 -09 -1998 in HC(W) No: 940/92. By means of this judgment writ petition filed by the appellant has been dismissed.

(2.) SHRI Kotwal, learned counsel appearing for the appellant submitted that no case is made out against his client as there was no evidence before the General Security Force Court constituted under the Border Security Force Act (hereinafter referred to as BSF Act). He further urged that no charge sheet was framed against the appellant under Section 304 RPC. He also questioned the constitution of General Security Force Court (hereinafter referred to as G.S.F.C), when J.P. Mamga in JAD(C) was inducted as a Member in place of Shri R.P. Singh. According to Shri Kotwal these discrepancies have been completely ignored by the learned Single Judge while dismissing the writ petition, therefore, this appeal deserves to be allowed and impugned judgment set aside. Another plea urged was that this court has an overall power of superintendence and control on all courts and tribunals including G.S.F.C. He also placed reliance on certain decided cases with a view to support his pleas and finally urged that while allowing this appeal, writ petition may further be allowed and as a consequence of it order of conviction and sentence as also dismissal imposed upon his client by the G.S.F.C. may be set aside thereby treating the appellant to be in service with all consequential benefits.

(3.) ON the other hand learned Senior Central Government Standing Counsel has controverted all these pleas urged on behalf of the appellant. He pointed out that so far scope of judicial review under Article 226 of the Constitution of India is concerned, it is limited while examining the proceedings of G.S.F.C. Only jurisdiction vested in this Court in such a situation is whether there is any infraction of the provisions of B.S.F. Act and/or the Rules framed thereunder, and if so, whether appellant has been prejudiced in any manner. While buttressing his this line of argument he pointed out that in exercise of powers under Article 226 of the Constitution of India this Court is not exercising appellate jurisdiction over the proceedings undertaken by the G.S.F.C. constituted as per provisions of B.S.F. Act and the Rules framed thereunder. By referring to Article 227 of the Constitution of India Shri Bhat pointed out that the proceedings before the G.S.F.C. are specifically excluded, as such no advantage can be taken from the powers of superintendence and control, though at the same time he also urged that Article 227 of the Constitution of India is inapplicable so far the State is concerned. By referring to the record of proceedings of G.S.F.C. he also urged that all provisions of BSF Act and the Rules have been complied with and it was only thereafter that the final verdict was given. So far constitution of the GSFC with the substitution of Sh.Mamgain for Shri R.P.Singh was concerned, Shri Bhat pointed that there is neither any illegality nor impropriety committed in view of the fact that Shri Mamgain was an officer who was a waiting Member and substituted Shri R.P. Singh. Thus he urged for dismissal of the appeal because there was no merit in it.