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IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, Kausik Chanda, JJ.
Sanjay Kumar - Appellant
Versus
Union Of India And Others - Respondent
M.A.T. No. 174 of 2022, I.A. No. CAN/1 of 2022
Decided On : 09-03-2022
BSF Act - Proceedings before Security Force Court - Section 40 of the Border Security Force Act, 1968 - The court rejected the writ petitioner's prayer for an interim order of stay of the trial proposed to be held by the General Security Force Court (GSFC). The charge sheet contained three charges under Section 40 of the BSF Act, alleging the writ petitioner's involvement in facilitating cattle smuggling from India to Bangladesh. The court discussed the applicability of Section 80 of the BSF Act, Rule 42(a) of the BSF Rules, 1969, Rule 51a of the BSF Rules, 1969, and Rule 55 of the 1969 Rules in relation to the case. The court also addressed the issue of the writ petitioner's right to appoint a Defense Officer of his choice.
Fact of the Case:
The writ petitioner appealed against the rejection of his prayer for an interim order of stay of the trial proposed to be held by the General Security Force Court (GSFC). The charges against the writ petitioner involved his alleged involvement in facilitating cattle smuggling from India to Bangladesh.
Finding of the Court:
The court found that the respondent authorities were not precluded from proceeding before the Security Force Court, as the subject matter before the Criminal Court was different from the subject matter in the GSFC trial. The court also rejected the appellant's contention that the active involvement of civilians in the alleged act of smuggling barred the GSFC trial. Additionally, the court found that the appellant was granted sufficient opportunity to engage a person of his choice to defend him at the GSFC trial.
Issues: The issues included the applicability of Section 80 of the BSF Act, Rule 42(a) of the BSF Rules, 1969, Rule 51a of the BSF Rules, 1969, and Rule 55 of the 1969 Rules in relation to the case, as well as the writ petitioner's right to appoint a Defense Officer of his choice.
Ratio Decidendi: The court held that the respondent authorities were not precluded from proceeding before the Security Force Court, as the subject matter before the Criminal Court was different from the subject matter in the GSFC trial. The court also ruled that the active involvement of civilians in the alleged act of smuggling did not bar the GSFC trial. Additionally, the court found that the appellant was granted sufficient opportunity to engage a person of his choice to defend him at the GSFC trial.
Final Decision: The appeal was dismissed, and the interim order stood vacated. The court ruled that the appellant was at liberty to engage any civil lawyer to defend himself at the GSFC trial.
JUDGMENT
arijit Banerjee, J. - The writ petitioner has preferred this appeal against an interim order dated February 11, 2022, passed in W.P.a. 2310 of 2022, whereby the writ petitioner's prayer for an interim order of stay of the trial proposed to be held by the General Security Force Court (GSFC), was rejected. The Learned Single Judge granted limited protection to the writ petitioner to the effect that the result of the trial by GSFC as against the writ petitioner shall abide by the result of the writ petition. Direction was given for exchange of affidavits.
2. The incident that prompted the respondent authorities to initiate proceedings against the writ petitioner is that during the intervening night of 11th /12th april, 2019, cattle was sought to be smuggled from India to Bangladesh. Members of the Border Security Force (BSF) intervened. as a result, the smuggling activities were thwarted. However, allegedly there was stone pelting by the smugglers directed towards the members of the BSF who suffered injury. an FIR was lodged by a member of the BSF against unknown persons. a criminal case was initiated against unknown persons. after investigation, the police filed an FRT. On the basis of such FRT, the concerned Magistrate closed the criminal case.
3. Subsequently, a charge sheet dated January 31, 2022 was issued by the competent authority against the writ petitioner under Section 40 of the Border Security Force act, 1968. Section 40 reads as follows:-
'40. Violation of good order and discipline.- any person subject to this act who is guilty of any act or omission which, though not specified in this act, is prejudicial to good order and discipline of the Force shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this act mentioned.'
4. The charge sheet contains three charges which are as follows.-
FIRST CHARGE BSF ACT-1968, SECTION -40 | AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE in that he, On 11 April, 2019, at about 1850 hrs, while performing duty as Second-in-command of 85 Bn BSF gave illegal instructions telephonically from his Mob No. 7739577117 to his subordinate officer, No. 873657710 ASI(G) Ravindra Kumar, Offg Inspector(G) of 85 Bn BSF on his mobile No. 7894983557 to facilitate cattle smuggling from India to Bangladesh through the aoR of BOP Sodepur, 85 BN BSF on the night intervening 11-12 april, 2019. |
SECOND CHARGE BSF ACT- 1968, SECTION - 40 | AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE in that he, On 11 april 2019, at about 1830 hrs, while performing duty as Second-in-Command of 85 Bn BSF induced his subordinate officer, No. 100092637 Inspector (GD) J Jebaraj of 'C' Coy telephonically by making Whatsapp call from his mobile No. 7739577117 to the mobile No 9600420796 used by J Jebaraj to facilitate cattle smuggling from India to Bangladesh through the aoR of BOP Sodepur on the night intervening 11-12 april, 2019. |
THIRD CHARGE BSF ACT -1968, SECTION - 40 | AN ACT PRE-JUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE In that he, after he had telephonically instructed No. 873657710 ASI(G) Ravindra Kumar, Offg Inspector (G) of 85 Bn BSF and No. 100092637 Inspector (GD) J Jebaraj to tell No. 948550069 HC(G) Raju Shahi of 85 Bn BSF to talk to him on Whatsapp and when HC(G) Raju Shahi called him on whatsapp sometime between 1900-2000 hrs on 11th april, 2019, the accused officer induced him to facilitate smuggling of cattle from India to Bangladesh through the AORR of BOP Sodepur, 85 Bn on the night intervening 11- 12 april, 2019. |
In short, the charge is that the writ petitioner gave instructions to his subordinate officers in the Force for facilitating cattle smuggling from India to Bangladesh.
5. The Competent authority decided to proceed against the writ petitioner before the GSFC. The writ petitioner approached the Learned Single Judge challenging the proposed proceedings before the GSFC. He prayed f
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