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2021 Supreme(J&K) 526
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
JAVED IQBAL WANI, J.
Samar Pal Thr. Ritu Pal - Petitioner
Versus
Union Territory of J&K & Ors. - Respondents
Bail App. No. 103 of 2020
Decided On : 03-02-2021
For the Petitioner: Muzaffar Iqbal Khan.
For the Respondent: Ayjaz Lone; Harshwardhan Gupta.
Special laws, like the BSF Act, prescribe a special form of procedure for offences committed by persons subject to such laws, and the Code of Criminal Procedure does not apply to such cases.
Headnote:
Bail Application - Jurisdiction of Security Force Court - BSF Act 1968, Section 307 IPC, Explosive Substance Act - Section 2(d), 2(q), 2(g), 2(k), 2(o), 2(u), 2(x), 46, 80, Rule 41, Rule 42, Section 5, Section 475 - The court discussed the provisions of the BSF Act and Rules, highlighting the jurisdiction of the Security Force Court and the special procedure prescribed for offences committed by persons subject to the BSF Act. The court emphasized that the Code of Criminal Procedure does not apply to cases governed by special or local laws, and the BSF Act falls within this category. As a result, the bail application was dismissed.
Fact of the Case:
The petitioner, a BSF constable, filed a bail application for offences under Section 307 IPC and Explosive Substance Act. The petitioner claimed innocence and argued that the offences were committed while on leave, thus not subject to the BSF Act.
Finding of the Court:
The court found that the petitioner, being subject to the BSF Act, was to be tried by a Security Force Court as per the Act and Rules. The court held that the Code of Criminal Procedure does not apply to cases governed by special laws, leading to the dismissal of the bail application.
Issues: Jurisdiction of Security Force Court, Applicability of BSF Act and Rules, Validity of Bail Application
Ratio Decidendi: The key legal principle established is that special laws, such as the BSF Act, prescribe a special form of procedure for offences committed by persons subject to such laws, and the Code of Criminal Procedure does not apply to such cases.
Final Decision: The bail application was dismissed due to the jurisdiction of the Security Force Court under the BSF Act and the inapplicability of the Code of Criminal Procedure to the case.
JUDGMENT :
1. The instant bail application has been filed by the petitioner/applicant for grant of bail in FIR No. 3/2020 dated 05.01.2020 registered at Police Station Samba, punishable under Section 307 IPC and 4/5 Exclusive Substance Act, after his application for bail filed earlier before the Court of Principle Sessions Judge, Samba, (for brevity the Court below) came to be rejected vide order dated 08.04.2020.
2. The background facts relevant and germane herein as stated by the applicant/petitioner in the instant application under the cover of which bail is being sought are that while serving as a Constable in 173 Bn. BSF, Samba and while availing leave after being sanctioned by the competent authority at his native place West Bengal, the local Police of West Bengal along with the police personnel of Police Station, Samba, arrested the petitioner/applicant taken to the police station and informed there that a case has been registered against him in Police Station, Samba and that the petitioner thereafter came to be brought to Police Station, Samba and subsequently lodged in Sub Jail, Hiranagar.
3. According to the petitioner/applicant, he has been serving his Battalion with dedication and devotion and as a disciplined member of BSF Force has never committed any offence.
4. It is being next stated in the petition that he was not having good terms with the complainant at whose instance FIR in question has been lodged and has been inimical to the petitioner for some personal issues. The petitioner states to have been a member of Bomb and IED Disposal Squad and that the complainant concocted a false and frivolous story in connivance with Police Station, Samba, while lodging a false and frivolous FIR against the petitioner. It is next stated that a charge sheet came to be filed upon completion of investigation in the matter before the Court below.
5. It is further stated that in terms of Section 80 of the Border Security Force Act 1968 (for brevity the Act) and Rule 42 of Border Security Force Rules 1969 (for brevity the Rules) the offences alleged against the petitioner was committed while he was on leave, therefore, the provisions of the Act do not apply to the instant case.
6. The petitioner/applicant in the application seeks bail inter alia on the other grounds that he has not committed any offence but has been falsely implicated in the case to settle some personal scores and that there is no substance in the charge sheet submitted by the prosecution inasmuch, as that the investigation is complete and there is no possibility of the petitioner to thwart the investigation in any manner or tamper with the evidence.
7. It is also being urged in the grounds that the petitioner is being deprived of his liberty and consequently to defend the case while being in the jail and that the Trial court while considering his earlier bail application has not at all appreciated the legal position attending on the issue of grant of bail.
8. It is significant to note here that during the pendency of the instant bail application SHO, Police Station Samba, Union of India through DIG Sector Head Quarter, BSF Jammu and Commandant 173 Bn. BSF, Samba came to be impleaded as party respondents/non-applicants.
9. Per Contra, respondents have filed objections and the bail application is being primarily and fundamentally resisted and controverted by respondent Nos. 3 and 4 contending in their objections that one Gurinder Singh, Second-In-Command posted in 173 Bn. BSF, Samba on 05.01.2020 after performing his duties at Border, came to be handed over with a packet by his Security Assistant Constable, Gulam Mustafa wrapped in a silver coloured gift wrapped with a chit mentioned with a name of Shri Gurinder Singh and according to said Gurinder Singh came to be opened by him in presence of his Security Assistant wherein he found a carton of JBL Bluetooth enabled earphones attached to a Plastic Explosive Kirkee and a 09 volt battery covered by thermocol and upon notici
