Non-compliance with the provisions of Section 91(4) of the Border Security Force Act, which mandates the summoning of witnesses from foreign territory in accordance with the provisions of the Code of Criminal Procedure, is a material irregularity that affects the right to a fair trial.

( 1 ) PETITIONER was posted on, Indo-Bangladesh Border. He was charged that he raped a Bangladeshi minor girl named Ms. Razia Khatoon. Thereafter, he was court- maratialled, found guilty and sentenced to undergo R. I. for 4 years and dismissal from service.

( 2 ) THE petitioner was tried by General Security Force Court under Sec. 47 of the Border Security Force Act read with Sec. 376 IPC. The statutory petition before respondent no. 2 / Director General of BSF was also rejected.

( 3 ) MR. R. P. SHARMA learned counsel for the petitioner has argued that no investigation and hearing of the charge as contemplated by BSF Rule 45 was done. In support of his contention Mr. Sharma has cited Lt. Col. Prithi Pal Singh Bedi v. Union of India AIR 1982 SC 1413 wherin it was held that Rule 45 was mandatory. The petitioner has challenged the procedure adopted by the Tribunal and assailed its findings about the identity, antecedents, credentials of minor girl, her mother and the doctor as all of them were foreign nationals not amenable to the jurisdiction of the Court Martial Court. On that score Mr. Sharma has argued that the evidence of such foreign nationals which was not recorded in conformity with the BSF Act and Rules and under the provisions of Sec. 285 of the Code of Criminal Procedure (hereinafter REFERRED TO to as the Code) cannot be taken into consideration for sustaining the conviction of the petitioner.

( 4 ) MR. SHARMA has further contended that once the BSF authorities had received the complaint from the Commandant, Bangladesh Rifles for alleged rape of a minor girl by B. S. F. men, the only legal and proper course for the Commandant of the petitioner was to hold an immediate Court of Inquiry to establish the truth of the allegations and thereafter investigation ought to have been conducted under BSF Rule

( 5 ) MR. SHARMA has also assailed the constitution of the Court Matrial court. He has argued that the Commandant without holding the mandatory hearing ordered the preparation of records of evidence and, therefore, the said record of evidence had no legal validity. Another contention of Mr. Sharma was that Shri S. S. Dogra, who was appointed as Law Officer at the trial by the Inspector General, North Bengal (Convening Officer) was the Legal Adviser of the Convening Officer himself as he was then working in the office as the Joint Assistant Director (Law) and in that capacity he had applied his mind to the proceedings and therefore he stood disqualified to act as Law Officer at the impugned trial and his association has rendered the trial illegal and cofam non judice. In his support he has cited Lance Dafedar Laxman v. Union of India and Ors. 1992 (24) DRJ 125.

( 6 ) MR. SHARMA has also contended that there was inherent contradictions in the statements of the prosecutrix and her mother who have deposed before the court martial proceedings that they went to the doctor after 3 days of the incident and the testimony of Bangladeshi doctor who deposed that he examined the prosecutrix on the next date of occurence. Mr. Sharma has laid great, emphasis on non-compliance of Ss. 89 of the BSF Act. Sec. 89 of the Act deals with summoning of witnesses which reads:-

"summoning witnesses: (1) The convening officer, the presiding officer of a Security Force Court, the Law Officer or, as the case may be, the officer approved under section 83 or the Commandant of the accused person may, by summons under his hand, require the attendance, at a time and place to be mentioned in the summons, of any person either to give evidence or to produce any document or other thing. (2) In the case of a witness who is subject to the Act, the summons shall be sent to his Commandant and such officer shall serve it upon him accordingly. (3) In the case of any other-witness, the summons shall be sent to the magistrage within whose jurisdiction he may be, or resides, and such magistrage shall give effect to the summons as if the witness were required in