Sh. Malkiat Singh vs Union of India and Others

Sukhdev Singh Kang, J.—This is a petition u/s 482, Code of Criminal Procedure filed by Malkiat Singh, Sub-Inspector 22nd Baattlion, Boarder Security Force, for quashing the proceedings pending against him before the General Security Force Court, 22nd Battalion, Boarder Security Force, Ajnala, District Amritsar, for the murder of L. Nafe Singh, No. 6622156 and injuries to Constable Shishu Pal Singh.

The brief facts leading to the filing of this petition are that Malkiat Singh, Sub Inspector, was posted to 22nd Battalion of Boarder Security Force in the Ajnala Sector of District Amritsar. On the night of 3lst of August, 1980, at about 8.40. P.M. Malkiat Singh, Sub-Inspector is alleged to have opened fire on L. Naik Nafe Singh and Constable Shisnu Pal Singh of Boarder Security Force when they happened to pass by his side. Shri J.S. Sidhu the commandant of this Battalion, sent a report regarding this incident to police Station Ajnala, at 3.30 A.M. on the morning of 1st of September, 1980. On receipt of this intimation, a report was recorded in the daily dairy of the police station. Later on, on the basis of that report, a case was registered and the matter was investigated. After the coopletion of the investigation, the Ajnala Police put in a challan in the Court of the Ilaqa Magistrate. 3. The Deputy Inspector General, Boarder Security Force exercising powers u/s 80 of the Boarder Security Force Act, 1968 (hereinafter referred to as ''the Act'') came to the conclusion that the proceedings regarding the death of Nafe Singh and injuries to Shishu Pal Singh, should be instituted before the General Security Force Court, He also ordered that Malkiat Singh be detained in the custody of the force On the 29th September, 1980 he addressed a communication to the Ilaqa Magistrate intimating him that he had in exercise of powers conferred by section 80 of the Act, decided that Malkiat Singh should be tried by the General Security Force Court and that the General Security Force Court is now seized of the matter and is trying the petitioner. Malkiat Singh, petitioner, has approached this Court for quashing those proceedings.

4 Mr. P.S. Mann, the learned counsel for the petitioner, has argued that he Commandant of the Boarder Security Force in compliance with Rule 174 of the Boarder Security Force Rules (hereinafter called ''the Rules,) sent a report regarding the incident of the death of Nafe Singh and injuries to Shishu Pal Singh to the Officer Incharge, Police Station Ajnala. On the basis of that report, a case was investigated and a challan was put in the Court of the Ilaqa Magistrate. The learned counsel contended that at this stage the authorities of the Boarder Security Force could not exercise powers u/s 80 of the Act and unilaterlly divest the Criminal Court of its jurisdiction to try the case against the petitioner. He has referred to the provisions of Section 81 of the Act in support of his argument and has contended that if the authorities of the Boarder Security Force had decided that the General Security Force Court should try the case, it was incumbent upon them to refer the matter to the Central Government for its decision. According to the learned counsel, the fact that a report had been lodged by the Commandant of the Battalion to the Police at Ajnala and when the Challan had been put in the Court, the Deputy Inspector General of the Security Force could not himself order that the case of the petitioner should be tried by the General Security Force Court. In the facts and circumstances of the case, it will be presumed that the Criminal Court wanted to try the case. Thus it was necessary for the Deputy Inspector-General, of the Force to have sought orders of the Central Government.

On the other hand, Mr. Gopi Chand, Advocate, the learned counsel representing the Union of India, has strenuously argued that the language of section 80 is very clear. It confers wide powers on the officers mentioned therein to decide as to whether a particular case in which the offence has been committed by a member or members of the force shall be tried by the General Security Force Court or by a criminal Court. The Deputy Inspector General of Force has taken a decision in the matter in accordance with Law. He also intimated the Ilaqa Magistrate regarding his decision. According to the learned counsel, no fault can be found with the conduct of the Deputy Inspector General. He further contended that the Criminal Court has not expressed any inclination to decide the case. Since in the present case, the criminal Court has not moved in the matter, there was no need to refer the matter to the Central Government.

I have carefully considered the rival contention of the learned counsel. I have not been able to persuade myself to accept the contentions raised by Mr. Mann. It will be useful at this stage to notice the relevant statutory provisions:-

S. 80. 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 Director 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.

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 the nearest Magistrate to be proceeded against according to law or to postpone proceedings, pending 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 forth 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 final.

Rule 174. Courts of Inquiry when to be held:

(1) A court of inquiry may be held to investigate into any disciplinary matter or any other matter of importance.

(2) In addition to a Court of inquiry required to be held u/s 62, a Court of inquiry shall be held in the following cases:

(a) (i) All unnatural death of persons subject to the act or other persons within the Force Lines, an immediate report shall be sent through the messanger to the Officer-in-Charge of the Police Station within whose jurisdiction the place of such unnatural.

(ii) In cases when such report cannot, for any reason be delivered with a reasonable time, a court of inquiry shall be held into such unnatural death.

(iii) Immediately on receipt of information of an unnatural death the Commandant or the senior most officer of the Battalion present shall prepare a report on the proforma set out in Appendix.

A bare perusal of section 80 of the Act reveals that powers have been conferred on the Deputy Inspector General of the Boarder Security Force to take a decision whether the case of the petitioner had to be tried by the criminal Court or by the General Security Force Court. He has exercised these powers. He applied his mind to the facts of the case and came to the conclusion that the case should be tried by the General Security Force Court. He undoubtely had this power. There is no indication from the record that he did not exercise this power in fair and judicious manner. He also informed the criminal Court of his views of the matter. The order of the Deputy Inspector General is perfectly legal and valid.

The second argument of Mr. Mann also lacks merit The Deputy Inspector-General of Force had intimated to the Ilaqa Magistrate by his letter dated the 29th of September, 1980 (a copy of which has been shown to me,) about the decision of the Force authorities. Even, thereafter, the criminal Court, has not expressed any inclination to try this case. In the absence of any expression, or intention of the criminal Court to try the case, it was not incumbent upon the Boarder Security Force authorised to seek the permission of the Central Government for the trial of the petitioner by the General Security Force Court.

No other point is pressed.

There is no merit in this petition and the same is dismissed.