CHANCHAL SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER was serving in Border Security Force as Constable. While on active duty he was apprehended by the Civil Police for his involvement in the Commission of offence under sections 376/452 RPC. Challan was presented before the Chief Judicial Magistrate, Udhampur on 6. 7. 1998, when he was committed for trial to Sessions Judge, Udhampur on the same day. Since the petitioner was serving in Border Security Force, Dy. Inspector General. Station Headquarter, BSF CI (OPS) Ramban moved an application dated 26.10.1998 before the Sessions Judge, Udhampur with a request to hand over the accused to the BSF authorities for his trial by the Security Force Court, in terms of Section 80 of the Border Security Force Act. Learned Sessions Judge accepted the request of the BSF authorities and vide order dated 2. 2. 1999 transferred the custody of the accused/petitioner to BSF for trial by the Security Force Court. Relevant record of the case was ordered to be transmitted to the DIG, Border Security Force under rules. Consequent upon the afore -said order passed by the Sessions Judge, Udhampur, the Commandant, 108 Bn. BSF where the accused was posted at the relevant time issued charge -sheet dated 17.

(2.) 1999. 2. Petitioner was also ordered to be kept under close arrest vide a separate order passed by the respondents. After the charge -sheet, the BSF authorities ordered recording of evidence in accordance with Rule 48 of Border Security Force Rules. During the recording of evidence (ROE) father of victim of rape, namely, Lal Din submitted a written application to the Commandant stating therein that he, his wife and daughter Rakia Bano (victim of alleged rape) have nothing to say in this case and they do not want to make any statement. Respondent No. 4, T. S. Gill, Dy. Commandant, Tac HQ 108 BN BSF Bidda, Udhampur, who was deputed for preparing (ROE) recorded evidence of other witnesses submitted the proceedings of ROE to the Commandant, who on consideration of the same convened Summary Security Force Court on 18.11.1999 at Tac HQ, 108 Bn BSF Bidda J&K. Based upon the findings of the Summary Security Force Court, the petitioner was dismissed from service vide the impugned order dated 18.11.1999. This punishment was imposed under section 18 (1) of the Border Security Force Act 1968. As far as the commission of offence under section 376/452 RPC is concerned, the authority i. e. the Commandant again approached the Sessions Judge, Udhampur with a fresh request to try the accused in Civil Court as no evidence has come against the petitioner before the Border Security Force authorities. This request was made vide application dated 19.11.1999. Learned Sessions Judge again accepted the request of the BSF authorities and ordered the trial of the accused/petitioner by the Criminal Court vide order dated 19.11.1999. Petitioner has assailed the proceedings of the Summary Security Force Court as also order dated 18.11.1999 dismissing the petitioner from service by the competent authority and order dated 19.11.1999 passed by the Sessions Judge, Udhampur ordering the trial of the petitioner by the Criminal Court.

(3.) IN the objections filed by the respondents, it is averred that that the petitioner has not availed statutory remedy available to him under section 117 of the Border Security Force Act 1968, read with Rule 167 of the Border Security Force Rules, 1969. Petitioner was participating in anti -militancy operational duty in sensitive area of Village Dedha on 28. 5. 1998 when he was found missing from other troops at about 1630 Hrs alongwith his arms/ammunition for which a case was registered with the Police Station, Mahore. He was traced at about 1600 Hrs on 29. 5. 1998 alongwith his arms/ammunition by police and arrested for offence under Section 376/452 RPC for committing rape with Rakia Bano D/O Lal Din R/O Shajroo. The victim was of 14 years of age. He was taken into Judicial Custody at Central Jail, Udhampur on the same day. It is further stated that a departmental Staff Court of Inquiry was ordered and his transfer was sought under section 80 of the Border Security Force Act from the Criminal Court for trial by a Security Force Court. Consequent upon the transfer of the custody of the accused to Border Security Force he was put up on offence report for alleged commission of following offences under Rule 45 of the Border Security Force Rules, 1969 before the Commandant: (a) Deserting the service; (b) Committing a Civil Offence that is to say rape punishable under section 376 RPC. The Commandant strictly following the provisions of Rule 45 after hearing the charge remanded him for ROE. Under the order of Commandant record of evidence was conducted in terms of Rule 48 of the Border Security Force Rules in presence of the petitioner. He was allowed to cross -examine all the prosecution witnesses, to make statement and also to produce defence witnesses under rules. During the record of evidence, prosecution witnesses, namely, Lal Din stated that his wife and daughter had made the statements before the Magistrate at Udhampur on 28. 5. 1998 and they do not want to make any other statement before the Border Security Force authorities. Record of evidence was submitted to the Commandant, who remanded the petitioner for trial by Summary Security Force Court on charge under section 18(i) of the Border Security Force Act. As no prima facie case under section 46 of the Border Security Force Act read with section 376 RPC was established in the record of evidence against the petitioner, he was tried by the Summary Security Force Court on charge under section 18(i) of BSF Act only. Petitioner was provided a friend for his assistance. Petitioner pleaded guilty before the Court and the Court accepting his plea of guilt sentenced him " to be dismissed from service" on 18.11.1999. He was there -after again transferred to the Court of Sessions Judge, Udhampur on 19.11.1999 for his trial for offence under section 376 RPC.