The main legal point established in the judgment is the lack of jurisdiction of the DIG, BSF to alter the charge and direct retrial of the appellant, as well as the violation of principles of natural justice in the appellant's case.

JUDGMENT :

(Sanjeev Kumar, J.)

1. The appellant was enrolled in the Border Security Force [“BSF”] as Constable (GD) on 16.04.1987 and was assigned to 93 Bn BSF on 04.06.1994. After his joining 93rd Bn BSF, the appellant was further posted to “F Coy” of the Unit. In the year 2000, the appellant was deployed at Forward Defence Location [“FDL”]-430 on the Line of Control in Poonch District of Jammu & Kashmir under operational control of 4 Grenadiers (Army Staff). On 25.09.2000, the appellant was deputed for night sentry duty at FDL-431 from 6 p.m. to 9 p.m., in buddy-pair, along with another Jawan of 4 Grenadiers (Army), namely, Sepoy Manoj Kumar.

2. It is alleged that the appellant left the place of duty with an excuse for having dinner but started consuming illegitimately procured liquor in violation of the standing instructions. When the appellant did not return for his duty till 9 p.m., Grenadier Manoj Kumar went to the bunker to call him for resuming his duties, he found the appellant in a state of intoxication who started abusing him. It is, however, alleged that, after some time, the appellant came out of his bunker without wearing belt, helmet and bullet proof jacket and asked the Grenadier Manoj Kumar to stand at the view point. When the Grenadier Manoj Kumar told the appellant that he would report against him for his conduct, ,the appellant got infuriated and fired 05 gun shots from his service weapon towards Grenadier Manoj Kumar. The bullets did not hit Grenadier Manoj Kumar but after hearing the sound of gun shots, troops of 4 Grenadier and their Commanding Officer came out of their bunkers. They disarmed the appellant and placed him under arrest. Officiating Coy Commander of appellant was telephonically informed about the happening, who himself reached FDL-431 on 26th September, 2000 and took over the appellant from the army authorities.

3. Having found the appellant having committed serious offences, he was heard by the Commandant, 93 Bn BSF on 09.10.2000 under the provisions of the Border Security Force Rules, 1969 [“the BSF Rules”] on two charges. The first charge was under Section 16(c) of the Border Security Force Act, 1968 [“the BSF Act”] for ‘being intoxicated while on active duty’ and the second charge was under Section 40 of the BSF Act for ‘commission of an act prejudicial to good order and discipline of the Force’.

4. After hearing the appellant on the charges, Record of Evidence (ROE) was ordered by the Commandant to be prepared on the said charges against the appellant. On completion of ROE, the Commandant, after having examined the evidence adduced in ROE, found a prima facie case under Sections 16(c) and 40 of the BSF Act made out against the appellant. Accordingly, in the exercise of power under Rule 51 of the BSF Rules, the Commandant decided to try the appellant by a Summary Security Force Court [“SSFC”]. The SSFC trial was held by the Commandant, 93 Bn BSF wherein the appellant pleaded guilty to both the charges. The SSFC, after evaluating the evidence on record and having regard to overall facts and circumstances, held the appellant guilty of both the charges and awarded him a sentence of 89 days rigorous imprisonment in Force custody.

5. It seems that the proceedings of SSFC, which were required to be sent to the DIG, SHQ BSF, Rajouri for countersigning, were first sent to the Law Officer Grade-1 of Frontier HQrs BSF, Jammu. It was during examination of the trial proceedings, the Law Officer found that the SSFC trial proceedings were not in accordance with law. He was of the opinion that the appellant should have been charged under Section 46 of the BSF Act read with Section 307 RPC for committing a civil offence of attempt to murder. He was of the opinion that since the offence committed by the appellant was covered under Section 46 of the BSF Act, as such, as per Section 74(2) of the BSF Act, reference ought to have been made to the DIG concerned by the Commandant before holding the trial. The