Arraignment in ITBP proceedings is complete only when the accused pleads guilty or not guilty; member substitution prior to this stage is compliant with the Rules.

JUDGMENT

[VIA VIDEO CONFERENCING]

Rajiv Sahai Endlaw, J.

CM 21873/2021 (for exemption)

1. Allowed, subject to just exceptions and as per extant rules.

2. The application is disposed of.

W.P.(C) 6927/2021 & CM 21872/2021 (for interim direction).

3. The petitioner, a Commandant (GD) in the respondents Indo-Tibetan Border Police (ITBP) and against whom, on 28th October, 2020 a General Security Force Court (GSFC) has been convened, has filed this petition, (i) impugning the order dated 12th April, 2021 of the Director General, ITBP and the order dated 16th February, 2021 of the Convening Authority of the GSFC; and, (ii) for declaration, that the proceedings conducted against the petitioner in pursuance to the convening order dated 28th October, 2020 of the Convening Authority, are unlawful for all practical purposes.

4. We have heard the counsel for the petitioner.

5. The counsel for the petitioner has argued, that (i) the GSFC was constituted vide order dated 28th October, 2020 and assembled on 18th November, 2020; (ii) as per Section 80 of the ITBP Act, 1992, GSFC has to have minimum five members and as constituted, had five members; (iii) the trial of the petitioner before the GSFC commenced with effect from 2nd December, 2020; (iv) the petitioner was "arraigned" under Rule 73, on 30th December, 2020; (v) the petitioner, before pleading to the charge, elected to submit statutory plea of jurisdiction under Rule 74 of the ITBP Rules, 1994, that GSFC had no jurisdiction to try the petitioner; (vi) the GSFC recorded evidence of the petitioner on the said plea of the petitioner and the prosecutor also adduced evidence in reply; (vii) thus, the trial continued post "arraignment" of the petitioner; (viii) on 11th February, 2021, GSFC found that one of its five members was disqualified from being a member of the GSFC; with such disqualification, GSFC fell short of the stipulated coram of five, under Section 80 of the ITBP Act; (ix) GSFC, on 11th February, 2021, wrote to the Convening Authority that one of the members of the GSFC suffered from disqualification to be a member of the GSFC and without him, the GSFC had fallen short of the coram stipulated in Section 80 of the ITBP Act; the GSFC thus, on 11st February, 2021 adjourned the proceedings sine die and referred the matter to the Convening Authority for passing appropriate orders; (x) the Convening Authority, vide impugned order dated 16th February, 2021, inter alia ordered:

• " Whereas, Court assembled on dated 18.11.2020 and the trial commenced on dated 02.12.2020.
• Whereas, charge sheet was read over to the accused and he was asked to make a plea as per Rule 73 of ITBP Rules 1994.
• And whereas, accused before pleading guilty or not guilty to the charges made a special plea to the jurisdiction under Rule 74.
• And whereas, when the GFC trial procedure was at the stage of Rule 74, it came to the notice of Court as referred to undersigned vide letter No-02 dated 11.02.2021.
• And whereas, the PO of GFC vide letter No-02 dated-11.02.2021 has conveyed that by virtue of signing of affidavit before Hon'ble High Court J&K at Jammu in WP(C) No-890/2020 titled Rajesh Kumar Tomar V/s Union of India and others, by Sh. Davinder Singh, DIG, SHQ(SNR) is disqualified. Hence the court fallen short of quorum stipulated U/S 80.
• And whereas, as per the provision contained in Rule 116(2) An officer shall not be added to a Court after the accused has been arraigned. In the instant case since the accused has not yet pleaded guilty or not guilty to the charges and as such he has not yet been arraigned, as per the definition of arraignment given in the Rule 73 ITBPF