Kartar Singh vs State

(1) This reference has been made by the learned Sessions Judge, Udhampur, in the following circumstances :

One Kartar Singh, a driver of the Border Security Force attached to 52 B.S F. Dhar Road, Udhampur, was driving a B. S. F. vehicle on 1351972

when the vehicle over ran a dog belonging to one Dilla Ram, an employee of the Army. This led to the registration of a case with the police at

Udhampur under Section 279 read with Section 429 of the Ranbir Penal Code against Kartar Singh, driver. The Police completed the investigation and ultimately put up a challan against the accused in the court of Chief Judicial Magistrate, Udhampur. on 2651972. On the challan being presented the court passed an order the relevant portion of which is translated as under:

The S P O has presented the challan, Let it be registered. The accused is a B S F employee. According to the Judgment of the High court reported as A. I. R. 1971 J&K 54 criminal court has jurisdiction to entertain cases against the military personnel the accused may therefore be summoned through concerned Officer Commanding for 8th July, 1972.

(2) Against this Order Kartar Singh, accused, filed a revision application before the learned Sessions Judge, Udhampur, on the ground that the

Criminal court had no jurisdiction to try him for the offences for which he was charged as the said offences were triable by Border Security Force

Court under section 46 of the Border Security Force Act. The learned Sessions Judge has made a reference to this court in somewhat indefinite terms and has recommended that the order passed by the Chief Judicial Magistrate be set aside.

(3) The case came up before me on 2151974 when I heard the counsel for the parties in part As the objection to the validity of the rules framed

under the Border Security Force Act was raised by the counsel for the State Border Security Force Act was raised by the counsel for the State I

issued notice to the Union of India by my order dated 2151974 to appear in the case. Mr. N. S, Bhains, standing counsel for the Border Security

Force has appeared on behalf of the Union of India. I have heard Mr. Bhains on behalf of the Union of India as also Mr. Singh and Chand Mohan

Gupta representing the State and Kartar Singh driver respectively.

(4) To me, it appears that the order dated 2651972 passed by the Chief Judicial Magistrate, Udhampur, which has been reproduced above is not

in any way irregular. Offences under Sections 279and429 of the R.P C are civil offences as defined in the Border Security Force Act and the same are triable by an ordinary court of criminal justice defined in the Act itself. An ordinary court of criminal Justice in the State of Jammu and Kashmir is fully competent to entertain a case under the aforesaid sections of the Penal Code and try the accused who is charged therewith All the civil

offences, however, are made triable concurrently by force of section 46 of the Border Security Force Court also. In case of dispute between the two forums of trial however the provisions of sections 80 and 81 have to be invoked. Section 80 and 81 of the Act are reproduced as under:

Choice between Criminal Court and Security Force Court.

When a criminal Court and a Security Force Court have each jurisdiction in respect of an offence, it shall be in the discretion of the

DirectorGeneral or the Inspector General or the Deputy Inspector General within whose command the accused person is serving or such other officer as may be prescribed, to decide before which Court the proceedings shall be instituted, and, if that officer decides that they shall be instituted before a Security Force Court, to direct that the Accused person shall be detained in force custody.1'

""Power of criminal Court to require delivery of offender.

(1) When a criminal Court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may,

by written notice, require the officer referred to in Section 80 at his option, either to deliver over the offender to nearest Magistrate to be proceeded against according to law, or to postpone proceeding, pending a reference to the Central Government.

(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as

to the Court before which the proceedings are to be instituted, for the determination of the Central Government whose order upon such reference

shall be final.'*

(5) A perusal of these sections would show that when a criminal court and a Security Force

Court have each jurisdiction in respect of an offence it shall be in the discretion of the Director General or the Inspector General or the Deputy

Inspector General of the B S F within whose command the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings should be instituted and if he decides that the proceedings shall be instituted before a Security Force Court he is required to direct that the accused person shall be detained in Force Custody.

(6) In this case after the passing of the order dated 2651972 the Deputy InspectorGeneral of Border Security Force appears to have decided that

the Security Force would try the accused. A communication to this effect is contained in the letter of DIG dated 2741973 which is on the file The action under these circumstances under Section 80 of the Act was taken by the DI G and in such an event the only course open to the criminal court was to decide whether in its opinion the proceedings against the accused shall be instituted before itself. If in the opinion of the criminal court the proceedings should have been instituted before itself it should have by a written notice required the officer referred to in Section 80 to either deliver over the offender to it to be proceeded against according to law or to postpone the proceedings pending a reference to the Central

Government.

(7) Under subsection (2) of Section 81 the officer referred to in Section 80 on the opinion of the criminal court under Section 81 (I) being

intimated to him, had both the courses open to him namely either to deliver over the offender to the criminal court in compliance with the

requisition, or to refer the question as to the court before which the proceedings are to be instituted for the determination of the Central

Government.

(8) This, however, was not done by the trial court. On 3041973 the letter of the DIG was brought to the notice of the court. The literal English

translation of the relevant petition of the interim order of that date reads thus :

The Commandant B. S. F. has written a letter that the accused would be tried by him. The Commandant may be informed that the criminal cases can be tried by the criminal courts alone. Therefore the accused may be produced in the court.

(9) This is not the order which could have been passed by the trial court under Section 81 (1) of the B. S. .F Act. The assertion that the criminal

courts alone can try criminal cases, was not only too bald to be made but was wholly in. correct as Section 46 of the B S. F. Act made the Civil offences concurrently triable by a Security Force Court and a court of criminal justice and Section 80 and 81 of the Act provided for the procedure in cases of conflict between the authorities of the B.S.F. and the criminal court on the question of jurisdiction. To my mind, it appears that none of the three sections were brought to the notice of the court at the time of passing the order dated 3041973. The trial court in its order dated 2651973 relied on a Judgment of this court reported as A. I. R. 1971 J and K 54 in which the court held that the civil offences under the

Army Act are triable only by a criminal court and not by a court martial The trial court, however, did not draw a distinction between the Army and the B S F. and the two Acts governing the two forces. The court it appears mistook the Army and B. S. F. as synonyms for each other. Whatever may be the case, the trial Magistrate was under an obligation to apprise himself of the correct position in law at the time of determining the effect of the requisitions of the D I G on 3041973 Vague impression about the legal position on a given point cannot be determinative of the legal rights of the litigants. Exactitude in the interpretation of law may be difficult thing but reference to and consideration of the relevant statute and the case law is an indispensable feature of a Judge's job.

(10) Mr. Anil Dev Singh argued towards the close of his argument that since, there is nothing wrong in the order dated 2651973 the reference was

not well founded.

(11) It is true that I have found in this case that initially there was nothing wrong in having entertained a challan against the accused and that the

CJM could issue process to the accused as admittedly the criminal court had jurisdiction to try the accused subject to the provisions of Sections 80

and 81 of the Border Security force Act. It is also not disputed that what is sought at this stage to be quashed is the order dated 2651973 by which the process was issued to the accused but as the whole record is before me and as I am of the opinion that the proceedings taken by the

Chief Judicial Magistrate in this case From 3041973 onwards are irregular I would not allow the said proceedings to be kept intact. While holding therefore that the order of the CJM dated 2651973 issuing process to the accused, even when the CJM had wrongly relied upon a judgment of this court is correct I quash the order of the CJM dated 3041973 and all subsequent proceedings for the reasons given above.

(12) The reference is accordingly accepted in part the order of the CJM dated 3041973 and the proceedings taken thereafter in the case are

quashed and the case is sent back to the Chief Judicial Magistrate, Udhampur, with a direction to pass an order on the communication received by him from the DIG BSF in accordance with the provisions contained in Section 81 (I) of the Border Security Force Act. In case the trial court is of the opinion that the proceedings against the accused should be instituted and continued before itself it shall give reasons for that opinion and require the officer referred to in Section 80 either to deliver over the offender to that court to be proceeded against according to law or to postpone the proceedings pending a reference to the Central Government. Needless to say that if the court decides that proceedings shall be instituted before itself and sends a written notice requing the officer referred to under Section 80 to deliver over the offender to the court the officer shall deliver the offender to the court or shall for with refer the question as to the court before which the proceedings are to be instituted for the determination of the

Central Government whose order upon such reference shall be binding. The parties shall appear before the trial Court on 3081974.

(13) In this view of the matter the question regarding the validity of the rules framed under the Border Security Force Act does not at all arise for

consideration and therefore no opinion is required to be expressed thereupon.