Criminal Appeal No. 624 of 2013 (Arising out of Special Leave Petition (Crl.) No. 5910 of 2012) and Criminal Appeal No. 625 of 2013 (Arising out of Special Leave Petition (Crl.) No. 5911 of 2012). Case: 1. State of J&K, 2. Ghulam Mohammad Sheikh Vs 1. Lakhwinder Kumar and Ors., 2. State of J&K and Ors.. Supreme Court (India)

Case NumberCriminal Appeal No. 624 of 2013 (Arising out of Special Leave Petition (Crl.) No. 5910 of 2012) and Criminal Appeal No. 625 of 2013 (Arising out of Special Leave Petition (Crl.) No. 5911 of 2012)
CounselFor Appellant: Gaurav Pachnanda, Sr. Adv. Sunil Fernandes, Renu Gupta, Rahul Sharma, Vernika Tomar, Kamini Jaiswal, Varinda Grover and Abhimanue Shrestha, Advs.and For Respondents: R.F. Nariman, SG, Siddartha Dave, Ritin Rai, B. Krishna Prasad and Sunil Fernandez, Advs.
JudgesChandramauli Kumar Prasad and Fakkir Mohamed Ibrahim Kalifulla, JJ.
IssueBorder Security Force Act, 1968 - Sections 2, 2(1), 13, 15, 15(1), 15(2), 47, 80, 141, 141(1), 141(2), 298(1), 298(2); Defence of India Act - Section 2; Ranbir Penal Code - Sections 201, 109, 302; Code of Criminal Procedure (CrPC), 1989 - Section 549; Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983 -...
Citation2013 (4) ABR 922, 2013 (V) AD (SC) 74, AIR 2013 SC 3163, 2013 CriLJ 3307, JT 2013 (6) SC 264, 2013 (3) RCR 180 (Cri), 2013 (6) SCALE 332, 2013 (6) SCC 333, 2013 (2) SCC (LS) 527
Judgement DateApril 25, 2013
CourtSupreme Court (India)

Judgment:

Chandramauli Kumar Prasad, J.

1. The allegation in the case is very distressing. A Kashmiri teenager lost his life by the bullet of Lakhwinder Kumar, a constable of the Border Security Force (hereinafter referred to as "the Force") at the Boulevard Road, Srinagar. He allegedly fired at the instigation of R.K. Birdi, Commandant of the 68th Battalion of the Force. The cause of firing, as alleged by the prosecution, if true, is appalling. R.K. Birdi on 5th of February, 2010 had gone for Annual Medical Examination at Composite Hospital, Humhama. While on way back at 4.40 P.M. to the Force Headquarters at Nishat, Srinagar, accompanied by other Force personnel, they got stuck in a traffic jam. This led to a verbal duel with some boys present at Boulevard Road, Brain, Srinagar. The verbal duel took an ugly turn and the Force personnel started chasing the boys. It is alleged that at the instigation of R.K. Birdi, constable Lakhwinder Kumar fired twice and one of the rounds hit Zahid Farooq Sheikh. Zahid died of the fire arm injury instantaneously. The aforesaid incident led to registration of FIR No. 4 of 2010 at Police Station, Nishat. It is relevant here to state that the Commandant of the Force by his letter dated 10.02.2010 handed over the investigation to the police. The case was investigated without any murmur by the local police and, during the course of investigation, both R.K. Birdi and Lakhwinder Kumar were arrested. On completion of investigation, the police submitted the charge-sheet on 05th of April, 2010 against both the accused for commission of offence under Section 302, 109 and 201 of the Ranbir Penal Code before the Chief Judicial Magistrate, Srinagar, whereupon an application was filed on behalf of the Force seeking time to exercise option for trial of the accused by Security Force Court. Accordingly, an application was filed by the Deputy Inspector General, Station Headquarters, Border Security Force, Srinagar before the Chief Judicial Magistrate, Srinagar on 6th of April, 2010 inter alia stating that the criminal case is pending against R.K. Birdi, Commandant and Lakhwinder Kumar, Constable and they are serving under his Command and both of them are in judicial custody. He went on to say that in exercise of his discretion under Section 80 of the Border Security Force Act, 1968 (hereinafter referred to as "the Act") he has decided to institute proceeding against them before the Security Force Court. In the aforesaid premise it was requested to stay the proceeding and to forward the accused persons along with all connected documents and exhibits for trial before the Security Force Court. This application was filed in the light of the provisions of Section 549 of the Code of Criminal Procedure, Svt. 1989, as in force in the State of Jammu & Kashmir. It was further stated that the outcome of the trial of the accused shall be intimated to the court as required under Rule 7 of the Jammu & Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983. The prayer of the Force was opposed by the State of Jammu & Kashmir and the deceased's uncle Ghulam Mohammad Shiekh. The Chief Judicial Magistrate by his order dated 25th of November, 2010 allowed the application filed by the Commandant and handed over the accused together with the charge-sheet and other materials collected by the investigating agency for trying the accused by the Security Force Court. While doing so, the learned Chief Judicial Magistrate observed as follows:

In the light of the above discussion it has been shown that accused have committed alleged offence while on active duty and the case squarely falls within 1st exception to the general provisions of Section 47 of the BSF Act, for which option is available to the applicant either to try them at BSF Court or let the Criminal Court of Ordinary jurisdiction to go ahead with their trial. In the instant case applicant has chosen to try them at BSF Court. Therefore, this Court has no option but to hand-over the accused together with the charge-sheet and other material collected by Investigating agency to the applicant for trying them at the BSF Court, Application is therefore accepted and accused are ordered to be handed over under custody so the applicant together with charge-sheet and the supporting material as well as all the seized articles. The Officer concerned shall try the accused expeditiously and convey the final out-come of the case to this Court as soon as it is completed

2. Aggrieved by the aforesaid order Ghulam Mohammad Sheikh and the State of Jammu & Kashmir filed separate revision applications before the High Court. Both the applications were heard together by the High Court and have been dismissed by the impugned order dated 21st of October, 2011. It is against this order the State of Jammu & Kashmir and Ghulam Mohammad Sheikh have preferred separate special leave petitions under Article 136 of the Constitution of India.

3. Leave granted.

4. We have heard Mr. Gaurav Pachnanda, Senior Advocate on behalf of the Appellant, the State of Jammu & Kashmir and Ms. Kamini Jaiswal, Advocate for the Appellant, Ghulam Mohammad Sheikh. We have also heard Mr. R.F. Nariman, learned Solicitor-General of India. Despite service of notice, Respondent Nos. 1 and 2 i.e., Lakhwinder Kumar & R.K. Birdi respectively have not chosen to appear.

5. It may be mentioned here that Section 47 of the Act bars trial of a person subject to the Act by a Security Force Court who has committed an offence of murder or of culpable homicide not amounting to murder or rape in relation to a person not subject to the Act. However, this bar will not operate if the person subject to the Act has committed the offence while on active duty. In other words, if a member of the Force commits offence of the nature specified above and the victim of crime is a civilian member, he cannot be tried by a Security Force Court but this bar will not operate if the offence has been committed while on active duty. The expression 'active duty' has been defined under Section 2(1)(a) of the Act, it reads as follows:

2. Definitions.-(1) In this Act, unless the context otherwise requires,-

(a) "active duty", in relation to a person subject to this Act, means any duty as a member of the Force during the period in which such person is attached to, or forms part of, a unit of the Force-

(i) which is engaged in operations against an enemy, or

(ii) which is operating at a picket or engaged on patrol or other guard duty along the borders of India,

and includes duty by such person during any period declared by the Central Government by notification in the Official Gazette as a period of active duty with reference to any area in which any person or class of persons subject to this Act may be serving;

6. Aforesaid provision makes the duty of the nature specified therein to be active duty and includes duty declared by the Central Government by notification in the official Gazette. From a plain reading of the aforesaid, it is evident that any duty as a member of the Force and enumerated in Clauses (i) and (ii), i.e., engaged in operations against an enemy or operating at a picket or engaged on patrol or other guard duty along the borders of India shall...

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