JUDGMENT :

1. With the consent of learned counsel for the parties, the petition is admitted to hearing and in view of the pure question of law involved, the same is taken up for final disposal.

2. In this petition, the petitioner, a BSF personnel, who is facing criminal trial before the General Security Force Court is aggrieved and has challenged, inter alia, orders dated 27th July, 2018 and 25th September, 2018 passed by the Chief Judicial Magistrate, Bandipora, whereby the charge-sheet presented against the petitioner before the Chief Judicial Magistrate has been transferred and handed over to the General Security Force Court [“GSFC”] constituted under the Border Security Force Act, 1968 [“the Act”]. The petitioner has also assailed the order of GSFC, whereby the application moved by the petitioner for issuance of certified copies of the proceedings including statement of prosecution witnesses has been rejected by relying upon Rule 129 of the Border Security Force Rules, 1969[“the Rules”]. The petitioner has infact challenged the vires of Rule 129 of the Rules on the ground that it infringes fundamental right of fair trial guaranteed to the petitioner under the Constitution of India.

3. On this petition coming up for consideration, this Court vide order dated 05.02.2020 while granting time to the respondents to file their objections also provided that the respondents may proceed in the matter of trial but shall not pass any final order until further orders. It is submitted that the GSFC has concluded the proceedings but the final orders could not be passed due to interim directions passed by this Court. Mr. Mushtaq Ahmad Dar, learned counsel appearing for the petitioner, thus, restricted his arguments only to the extent of seeking declaration that the Rule 129 of the Rules is inconsistent with part-III of the Constitution of India and that the denial of certified copies of the statements recorded during trial before the GSFC infringes his fair trial right guaranteed under Article 21 of the Constitution.

4. The gist of submissions made by the learned counsel for the petitioner can be put in the following manner-

(i) Section 87 of the Act read with Section 76 of the Evidence Act, 1872 confers a right on the petitioner to obtain certified copies of the public documents. Statements of witnesses, it is contended, are public documents and, therefore, the respondents could not have rejected his application for certified copies of such statements by placing reliance on the impugned Rule.

(ii) Rule 129, impugned in this petition, violates the fair trial right guaranteed to the petitioner under Article 21 and 22 of the Constitution.

(iii) The impugned Rule, which takes away the right of the accused facing trial under the Act to obtain certified copies of the statements of the prosecution witnesses recorded by the GSFC till the findings and sentence is confirmed when such confirmation is required, is arbitrary and discriminatory, in that, the accused facing trial under the Code of Criminal Procedure before the Court of Sessions or Judicial Magistrate, who is similarly situated, is not so debarred.

(iv) That, as is provided under Section 1 of the Evidence Act, the Act applies to all judicial proceedings in or before any Court including Court-martial other than Court-martial convened under the Army Act, Naval Discipline Act/the Indian Navy (Discipline) Act, 1934 or Air Force Act. The Parliament by enacting Rule 129 of the Rules cannot override the provisions of Indian Evidence Act, 1872 and, therefore, Rule 129 of the Rules to the extent of its repugnancy with Section 1 and 76 of the Indian Evidence Act is bad in the eye of law and, therefore, deserves to be declared ultra vires the Evidence Act as well.

5. Per contra, Mr. Nazir Ahmad Bhat, learned CGSC, who has filed objections on behalf of the respondent Nos. 1 to 7 argues that Rule 129 of the Rules framed under Sub Section 1 and 2 of Section 141 of the Act is saved by Article 33 of the