JUDGMENT :

HIRANMAY BHATTACHARYYA, J.

1. The petitioner has prayed for setting aside the order of the Commandant/Disciplinary Authority dated April 23, 2021 and the order of the Director General/Appellate Authority dated May 6, 2021.

2. While the petitioner was attached with FTR Headquarter, Border Security Force, North Bengal, Kadamtala as a Constable in 94 Battalion BSF he was served with a charge sheet dated April 3, 2020. Three charges were levelled against the petitioner. The first charge was that he had deliberately and maliciously acted with intention to outrage the religious feeling of a particular religious community by insulting its religion or religious belief. The second charge was that he had morphed photographs of Prime Minister of India and sent to other persons in WhatsApp groups. The third charge was that the petitioner was having contact with some foreign nationals and WhatsApp Group of certain other foreign countries.

3. The petitioner was subjected to trial before the Summary Security Force Court. The Commandant of 94 Battalion, Border Security Force passed an order on April 23, 2020 holding that the petitioner has committed offences under Sections 46 and 40 of the Border Security Force Act, 1968 (for short “1968 Act”). The first and second charge against the petitioner was only proved. The Commandant awarded sentence of dismissal from service. The petitioner filed an appeal petition and the Appellate Authority passed an order on May 6, 2021 thereby rejecting the appeal petition upon holding that the same is devoid of any merit.

4. Mr. Ahmed, learned advocate appearing for the petitioner submits that the petitioner was charged with civil offences falling under Section 46 of the 1968 Act. He further submits that the Summary Security Force Court lacks jurisdiction to try an offence under Section 46 of the 1968 Act in view of the provisions laid down under Sub-section 2 of Section 74 of the 1968 Act.

5. Mr. Ahmed further submits that Summary Security Force Court proceeding was also conducted in violation of principles of natural justice as the petitioner was not afforded any opportunity to lead any evidence to defend the charges levelled against him.

6. Mr. Ahmed further places reliance upon a decision of the Hon’ble Orissa High Court in the case of Kalipada Acharya vs. Union of India & Ors. reported in 2019 LabIC 981 in support of his contention that the Summary Security Force Court do not have the jurisdiction to try offences under Section 46 of the 1968 Act.

7. Per contra Ms. Saha Datta, learned advocate appearing for the BSF Authority submits that the petitioner was charged with offences falling under Sections 40 and 46 of the 1968 Act. She submits that the Summary Security Force Court has the jurisdiction to try the offences falling under Section 40 of the 1968 Act. She further submits that since the charges levelled against the petitioner falling under Section 46 of the 1968 Act are of grave nature, the authorities subjected the petitioner to trial before the Summary Security Force Court.

8. Heard the learned advocates for the parties and perused the materials placed. Since the issue of jurisdiction of the Summary Security Force Court was raised by Mr. Ahmed, this Court shall decide the said issue before entering into other issues.

9. For the purpose of deciding the said issue, it will be beneficial to take note of some of the provisions of the 1968 Act for which the same are extracted hereinafter.

“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, assigne