RAJVIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against judgment dated September 15, 2005 delivered by a learned Single Judge of this Court in OWP No.289/1998 dismissing appellant -Rajvir Singhs writ petition seeking quashing of order dated 21 -10 -1997, whereby he was convicted by General Security Force Court (GSFC, for short) and sentenced to rigorous imprisonment for one year and dismissal from service, on the following charges for infraction of Ss.46 and 40 of the Border Security Force Act, 1968 : @Z_TBL_BEG = COLUMNS(2), DIMENSION(IN), COLWIDTHS(1.0000,E1), ABOVE(.1000), BELOW(.1000), HGUTTER(.0555), VGUTTER(.0555), KEEP(OFF) @Z_TBL_BODY = BTNIND, TABLE TEXT "First Charge BSF Act Section 46, COMMITTING A CIVIL OFFENCE,, THAT THAT TO SAY,, BEING A PUBLIC SERVANT,, AGREES TO ACCEPT,, GRATIFICATION,, OTHER THAN LEGAL REMUNERATION,, FOR SHOWING,, IN EXERCISE OF HIS OFFICIAL FUNCTIONS,, FAVOUR TO ANY PERSON,, PUNISHABLE U/S 161 RFC @Z_TBL_BODY = TABLE TEXT, TABLE TEXT , In that he,, at Nowhatta on 10 -6 -95,, while performing the duties of Subedar (G) of 07 Bn BSF,, agreed to accept Rupees 3 lakh from Shri Mehrajuddin Ahangar,, son of Shri Ghulam Mohd. Ahangar R/o Kaka Bazar,, Nowhatta,, Srinagar for himself,, a gratification,, other then legal remunoration,, as a motive for showing in exercise of his official functions,, favour to any person,, to wit,, release of one detenue namely Shri Nazir Ahmed Soli,, a chief of 'Al -Jehad outfit,, from the BSF custody. @Z_TBL_BODY = BTNIND, TABLE TEXT Second Charge BSF Act Section 40, AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE @Z_TBL_BODY = TABLE TEXT, TABLE TEXT , In that he,, at Nowhalta on 10.6.95,, while performing the duties of Subedar (G) of 07 Bn BSF,, improperly and without authority,, released an apprehended militant Nazir Ahmed Sofi,, a chief of 'AL -JEHAD outfit,, from the BSF custody. @Z_TBL_BODY = BTNIND, TABLE TEXT Third Charge BSF Act Section 40, AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE. @Z_TBL_BODY = TABLE TEXT, TABLE TEXT , In that he,, at Nowhatta,, on 10.6.95 while performing the duties of Subedar (G) of 07 Bn BSF,, improperly replaced an apprehended militant Nazir Ahmed Sofi son of Shri Habibullah,, a chief of 'AL -JEHAD outfit,, in BSF custody,, with his brother Shri Basir Ahmed Sofi son of Habibullah sofi R/o Sheikh Mohalla,, Srinagar." @Z_TBL_END =

(2.) SHRI Sunil Sethi, appearing for the appellant, submitted that General Security Force Court had not been properly convened because Shri CM. Bhat, Inspector General, Border Security Force, was not competent to convene GSFC. This, according to the learned counsel, was in violation of Section 65 of the Border Security Force Act, 1968 and, thus, vitiated the trial. Shri Sethi pointed out another violation in the trial of the appellant and referred to Rule 59 of the Border Security Force Rules, 1969, to urge that advice of the Chief Law Officer or Law Officer had not been taken by the superior authority before convening the GSFC. Relying on Rule 55(2) of the Border Security Force Rules, learned counsel submits that there should have been a joint trial of the appellant/writ petitioner with Karan Singh, Deputy Commandant. Further grievance of the appellant, argues the learned counsel, is that appellant had not been provided sufficient opportunity to summon his defence witnesses and that the defending officer had not discharged his functions so as to defend the appellant/writ petitioner well. The last submission of Shri Sethi was that charge No.l having not been proved, the other two charges would automatically fall because these were dependent on the main charge, being charge No.l. Shri Sethi made a feeble attempt to urge that the finding of the General Security Force Court was not supported by reasons. According to Shri Sethi, learned Single Judge has not taken note of the violation of Border Security Force Act and Rules framed thereunder and, as such, the judgment impugned in the appeal warrants to be set aside and writ allowed.

(3.) SHRI Ajay K. Gandotra, appearing for Union of India, submitted that the trial of the appellant had been conducted in accordance with law/and the requisite provisions of the Border Security Force Act and Border Security Force Rules had been complied with in letter and spirit. He controverted the submissions of Shri Sethi by urging that the original records would belie the submissions raised by the learned counsel for the appellant.