Samar Pal, Through Ritu Pal Petitioner(S) v. Union Territory Of J&K And Others (S).

Javed Iqbal Wani, J.:— The instant bail application has been filed by the petitioner/applicant for grant of bail in FIR No. 3/2020 dated 05.01.2020 registered at Police Station Samba, punishable under Section 307 IPC and 4/5 Exclusive Substance Act, after his application for bail filed earlier before the Court of Principle Sessions Judge, Samba, (for brevity the Court below) came to be rejected vide order dated 08.04.2020.

2. The background facts relevant and germane herein as stated by the applicant/petitioner in the instant application under the cover of which bail is being sought are that while serving as a Constable in 173 Bn. BSF, Samba and while availing leave after being sanctioned by the competent authority at his native place West Bengal, the local Police of West Bengal along with the police personnel of Police Station, Samba, arrested the petitioner/applicant taken to the police station and informed there that a case has been registered against him in Police Station, Samba and that the petitioner thereafter came to be brought to Police Station, Samba and subsequently lodged in Sub Jail, Hiranagar.

3. According to the petitioner/applicant, he has been serving his Battalion with dedication and devotion and as a disciplined member of BSF Force has never committed any offence.

4. It is being next stated in the petition that he was not having good terms with the complainant at whose instance FIR in question has been lodged and has been inimical to the petitioner for some personal issues. The petitioner states to have been a member of Bomb and IED Disposal Squad and that the complainant concocted a false and frivolous story in connivance with Police Station, Samba, while lodging a false and frivolous FIR against the petitioner. It is next stated that a charge sheet came to be filed upon completion of investigation in the matter before the Court below.

5. It is further stated that in terms of Section 80 of the Border Security Force Act 1968 (for brevity the Act) and Rule 42 of Border Security Force Rules 1969 (for brevity the Rules) the offences alleged against the petitioner was committed while he was on leave, therefore, the provisions of the Act do not apply to the instant case.

6. The petitioner/applicant in the application seeks bail inter alia on the other grounds that he has not committed any offence but has been falsely implicated in the case to settle some personal scores and that there is no substance in the charge sheet submitted by the prosecution inasmuch, as that the investigation is complete and there is no possibility of the petitioner to thwart the investigation in any manner or tamper with the evidence.

7. It is also being urged in the grounds that the petitioner is being deprived of his liberty and consequently to defend the case while being in the jail and that the Trial court while considering his earlier bail application has not at all appreciated the legal position attending on the issue of grant of bail.

8. It is significant to note here that during the pendency of the instant bail application SHO, Police Station Samba, Union of India through DIG Sector Head Quarter, BSF Jammu and Commandant 173 Bn. BSF, Samba came to be impleaded as party respondents/non-applicants.

9. Per Contra, respondents have filed objections and the bail application is being primarily and fundamentally resisted and controverted by respondent Nos. 3 and 4 contending in their objections that one Gurinder Singh, Second-In-Command posted in 173 Bn. BSF, Samba on 05.01.2020 after performing his duties at Border, came to be handed over with a packet by his Security Assistant Constable, Gulam Mustafa wrapped in a silver coloured gift wrapped with a chit mentioned with a name of Shri Gurinder Singh and according to said Gurinder Singh came to be opened by him in presence of his Security Assistant wherein he found a carton of JBL Bluetooth enabled earphones attached to a Plastic Explosive Kirkee and a 09 volt battery covered by thermocol and upon noticing the same the said officer is stated to have informed the Commandant of the battalion and placed the said explosive substance along with attached things/material outside at a safe place and that the said officer named the accused petitioner/applicant responsible for sending the said packet being an expert in Bomb disposal alleging that the accused attempted to murder him by using the said explosive device.

10. According to the respondents as is being stated in their objections, an FIR consequently came to be registered on 05.01.2020 under Section 307 IPC read with Section 4/5 of Explosive Substance Act 1908 at Police Station, Samba on 05.01.2020 and investigation undertaken in the matter and after effecting the arrest of the petitioner/applicant, voluntarily disclosure and confession was made by an applicant/petitioner who stated to have stolen and misappropriated the explosive handed over to him for preparation of a sample IED for presentation and demonstration during yearly inspection conducted by DIG, BSF at BSF Camp, Samba.

11. Respondents in their objections further state that after completing the investigation and on the basis of evidence collected as also the statement of witness recorded during the course of investigation, offences in question were found to have been committed by petitioner/applicant.

12. It is being further stated by the respondents in their objections that upon coming to know about the filing of charge sheet by the police before the Court below, an application came to be filed by respondent No. 3 in the month of June under Section 80 of the BSF Act read with Rule 41 of BSF Rules 1969 and Section 475 of Cr P.C. claiming therein that the challan/charge sheet for trial by the Security Force Court on the premise that the offences have been committed by the petitioner being subject to BSF Act and against a person subject to BSF Act.

13. It is being further stated in the objections by the respondents that the Court below vide its order dated 26.08.2020 remanded the challan/charge sheet back for passing of appropriate orders to the Court of learned Chief Judicial Magistrate, Samba which court had earlier committed the case to the Sessions Court, where upon the Court of Chief Judicial Magistrate, Samba vide its order dated 01.09.2020 handed over the charge sheet in question with custody of the accused to the respondent for trial by Security Force. Court under the provisions of the BSF Act 1968 and Rules.

14. Heard learned counsel for the parties and perused the written submissions.

15. The fundamental and moot issue for consideration of this court in the matter would be as to whether in presence of the BSF Act and the BSF Rules the instant bail application would be maintainable more so in view of Section 5 read with Section 475 of the Code of Criminal Procedure.

16. Before dealing with the aforesaid issue it would be appropriate and advantageous in the first place to refer to following provisions of the BSF Act.

Section 2(d) reads as under:-

“Civil offence” means an office which is triable by a criminal court.

Section 2(q) reads as under:-

“offence” means any act or omission punishable under this Act and includes a civil offence.

Section 2(g) reads as under:-

“Criminal court” means a court of ordinary criminal justice in any part of India.

Section 2(k) reads as under:-

“Enrolled person” means an under-officer or other person enrolled under this Act.

Section 2(o) reads as under:-

“Member of the Force” means an officer, a subordinate officer, an under-officer or other enrolled person.

Section 2(u) reads as under:-

“Security Force Court” means a court referred to in section 64.

Section 2(x) reads as under:-

“Under-officer” means a Head Constable, Naik and Lance Naik of the Force.

Section 46 of the Act reads as under:-

46. Civil offences.—Subject to the provisions of section 47, any person subject to this Act who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section shall be liable to be tried by a Security Force Court and, on conviction, be punishable as follows, that is to say,—

(a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.

Section 80 of the Act reads as under:-

80. Choice between criminal court and Security Force Court.—

When a Criminal Court and a Security Force Court have each jurisdiction in respect of an offence, it shall be in the discretion of the Director-General, or the Inspector-General or the Deputy Inspector-General within whose command the accused person is serving or such other officer as may be prescribed, to decide before which court the proceedings shall be instituted, and, if that officer decides that they shall be instituted before a Security Force Court, to direct that the accused person shall be detained in Force custody.

Rule 41 of the Act reads as under:-

41. Trial of cases either by Security Force Court or Criminal Court.— (1) Where an offence is triable both by a criminal court and a Security Force Court, an officer referred to in Section 80 may,—

(i) (a) where the offence is committed by the accused in the course of the performance of his duty as a member of the Force, or

(b) where the offence is committed in relation to property belonging to the Government or the Force or a person subject to the Act, or

(c) where the offence is committed against a person subject to the Act, direct that any person subject to the Act, who is alleged to have committed such an offence, be tried by a court; and

(ii) in any other case, decide whether or not it would be necessary in the interests of discipline to claim for trial by a court any person subject to the Act who is alleged to have committed such an offence.

(2) In taking a decision to claim an offender for trial by a court, and officer referred to in section 80 may take into account all or any of the following factors, namely:—

(a) the offender is on active duty or has been warned for active duty and it is felt that he is trying to avoid such duty;

(b) the offender is a young person undergoing training and the offence is not a serious one and the trial of the offender by a criminal court would materially affect his training;

(c) the offender can, in view of the nature of the case, be dealt with summarily under the Act.

Rule 42 reads as under:-

42. Cases not to be tried by Security Force Court.—Without prejudice to the provisions of rule 41, an offender may not be claimed for trial by a Security Force Court—

(a) where the offence is committed by him along with any other person not subject to the Act whose identity is known; or

(b) where the offence is committed by him while on leave or during absence without leave.

17. The admitted position that emerges in the case is that the petitioner is an enrolled person and a member of Force as defined under the Act having allegedly committed an offence/civil offence as defined under the Act against a person subject to the Act and that therefore, the respondents took a decision to claim the petitioner for trial by a Security Force Court under the provisions of the Act and Rules made there under from the Court below.

18. Perusal of the above provisions reveal that the respondents/competent authority choose to proceed against the petitioner before a Security Force Court upon filing of an application before the Court below under Section 80 of the Act and admittedly validity of order dated 01.09.2020 is not to be looked into in the instant bail application.

19. Here it would also be pertinent and relevant to refer to Sections 5 and 475 of the Code of Criminal Procedure, being relevant and germane to the issue involved in the petition.

Section 5 reads as under:-

5. Saving. — Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Section 475 reads as under:-

475. Delivery to commanding officers of persons liable to be tried by Court-martial.—(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air-force law, or such other law, shall be tried by a Court to which this Code applies, or by a Court-martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for the purpose of being tried by a Court-martial.

20. A plain reading of the Section 5 supra contemplates that the provisions of the Code shall not be applicable where a case is governed by a special or local law prescribing special form of procedure prescribed by any other of law for the time being in force. In the case in hand, the petitioner as has been observed in the preceding paras admittedly is a person subject to the BSF Act and that the BSF Act is a special Act prescribing special form of procedure to be followed in respect of offences committed by any person subject to BSF Act and Rules made there under. Section 475 of the CrPC supra also manifestly tends to supplement the aforesaid position, in that, the Act in question would fall within the domain thereof as being “such other law” provided therein under Section 475 CrPC.

21. Thus having regard to the aforesaid position the instant bail application cannot be entertained and accordingly is, dismissed.

22. Dismissed along with all CrLM(s).