Ram Niwas vs Prabhakar Joshi, DIG, BSF

Vinod Chatterji Koul, J

The petitioner is seeking initiation of proceedings for Contempt of Court against the respondent Prabhakar Joshi, Deputy Inspector General, SHQ

Border Security Force, Gurdaspur, Punjab on the ground that despite he having been admitted to bail by the order of this Court, has been detained and

taken into custody by the respondent.

2 Briefly stated the facts are that FIR No.101/2019 for the offences punishable under Sections 458/354 IPC read with Section 9 of Protection of

Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’) was registered against the petitioner/accused with the police of

Police Station Akhnoor. The said FIR was registered on the basis of a complaint filed on 16.05.2019 through BSF Authorities. The allegation against

the petitioner/accused was that on 04.11.2018, he entered into the quarter, BSF Campus Akhnoor of the father of the victim and misbehaved with his

elder daughter by touching her body when her parents were not present. The prosecutrix reported the matter to the BSF Authorities with regard to the

occurrence whereatfer the aforesaid complaint was made.

3 This Court, while dealing with the bail application No. 67/2020 admitted the petitioner/accused on bail while he was in judicial custody and the case

was before the Court of Principal Sessions Judge Jammu. Thereafter on 28.04.2021, the Deputy Inspector General SHQ BSF exercised its option to

conduct the trial in the case and made a request to the Principal Sessions Judge, Jammu regarding the same.

4 It is submitted by the petitioner that the respondent, after opting to conduct the trial of the accused, had taken him into custody, as such, the

respondents has violated the order of this Court by virtue of which he has been admitted to bail .

5 Mr. Vishal Sharma learned ASGI appearing on behalf of the respondent submits that the respondent has exercised its option and in terms of Section

80 of the Border Security Force Act, 1968, the petitioner/accused has been detained and taken into custody and such custody was taken in pursuance

to the provisions of Section 80 of the said Act.

6 I have considered the arguments put forth by learned counsel for the petitioner and Mr. Vishal Sharma, learned ASGI appearing for the respondent.

7 A perusal of Section 80 and 81 of the aforesaid Act would show that when the criminal Court and the Security Force Court has 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 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 should be instituted before a Security Force Court, he is required to direct that the accused person shall be

detained in the Force Custody. In this regard, reliance is placed on the decision of this Court reported in Kartar Singh vs. State of Jammu and

Kashmir, 1975 KLJ 361.

8 In the present case, since the Authority under Section 80 of the aforesaid Act has exercised its jurisdiction for trial of the accused by the Security

Force Court and detained the accused in Force custody, such act does not amount to violation and, as such, the proceedings for Contempt of Court

cannot be initiated against the respondent. The petitioner is, however, at liberty to make an appropriate application before the Authority for release, if

permissible under law.

9 In view of the above, the contempt proceedings are closed.