Judgment

CHANDRAMAULI KR. PRASAD, J.

The allegation in the case is very distressing. A Kashmiri teenager lost his life by the bullet of Lakhwinder Kumar, a constable of the Border Security Force (hereinafter referred to as "the Force") at the Boulevard Road, Srinagar. He allegedly fired at the instigation of R.K. Birdi, Commandant of the 68th Battalion of the Force. The cause of firing, as alleged by the prosecution, if true, is appalling. R.K. Birdi on 5th of February, 2010 had gone for Annual Medical Examination at Composite Hospital, Humhama.

While on way back at 4.40 P.M. to the Force Headquarters at Nishat, Srinagar, accompanied by other Force personnel, they got stuck in a traffic jam. This led to a verbal duel with some boys present at Boulevard Road, Brain, Srinagar. The verbal duel took an ugly turn and the Force personnel started chasing the boys. It is alleged that at the instigation of R.K. Birdi, constable Lakhwinder Kumar fired twice and one of the rounds hit Zahid Farooq Sheikh. Zahid died of the fire arm injury instantaneously. The aforesaid incident led to registration of FIR No. 4 of 2010 at Police Station, Nishat.

It is relevant here to state that the Commandant of the Force by his letter dated 10.02.2010 handed over the investigation to the police. The case was investigated without any murmur by the local police and, during the course of investigation, both R.K.Birdi and Lakhwinder Kumar were arrested. On completion of investigation, the police submitted the charge-sheet on 05th of April, 2010 against both the accused for commission of offence under Section 302, 109 and 201 of the Ranbir Penal Code before the Chief Judicial Magistrate, Srinagar, whereupon an application was filed on behalf of the Force seeking time to exercise option for trial of the accused by Security Force Court. Accordingly, an application was filed by the Deputy Inspector General, Station Headquarters, Border Security Force, Srinagar before the Chief Judicial Magistrate, Srinagar on 6th of April, 2010 inter alia stating that the criminal case is pending against R.K. Birdi, Commandant and Lakhwinder Kumar, Constable and they are serving under his Command and both of them are in judicial custody.

He went on to say that in exercise of his discretion under Section 80 of the Border Security Force Act, 1968 (hereinafter referred to as "the Act") he has decided to institute proceeding against them before the Security Force Court. In the aforesaid premise it was requested to stay the proceeding and to forward the accused persons along with all connected documents and exhibits for trial before the Security Force Court. This application was filed in the light of the provisions of Section 549 of the Code of Criminal Procedure, Svt. 1989, as in force in the State of Jammu & Kashmir. It was further stated that the outcome of the trial of the accused shall be intimated to the court as required under Rule 7 of the Jammu & Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983. The prayer of the Force was opposed by the State of Jammu & Kashmir and the deceased's uncle Ghulam Mohammad Shiekh. The Chief Judicial Magistrate by his order dated 25th of November, 2010 allowed the application filed by the Commandant and handed over the accused together with the charge-sheet and other materials collected by the investigating agency for trying the accused by the Security Force Court.

While doing so, the learned Chief Judicial Magistrate observed as follows: "In the light of the above discussion it has been shown that accused have committed alleged offence while on active duty and the case squarely falls within 1st exception to the general provisions of Section 47 of the BSF Act, for which option is available to the applicant either to try them at BSF Court or let the Criminal Court of Ordinary jurisdiction to go ahead with their trial. In the instant case applicant has chosen to try them at BSF Court. Therefore, this court has no option