BSF Act | Offence under S. 354 RPC Excluded From Purview Of “Civil Offence”, Cannot Be Tried By Summary Security Force Court
Nullifying the dismissal of a Border Security Force (BSF) constable, the Jammu and Kashmir and Ladakh High Court has ruled that an offence under Section 354 RPC cannot be tried by a Summary Security Force Court owing to the fact that the said offence is excluded from the purview of the meaning of Section 46 of “civil offence” under the Scheme of BSF Act.Citing section 47 of the Act...
Nullifying the dismissal of a Border Security Force (BSF) constable, the Jammu and Kashmir and Ladakh High Court has ruled that an offence under Section 354 RPC cannot be tried by a Summary Security Force Court owing to the fact that the said offence is excluded from the purview of the meaning of Section 46 of “civil offence” under the Scheme of BSF Act.
Citing section 47 of the Act which specifically speaks about the “civil offence” not triable by a Security Force Court Justice M.A Chowdhary recorded,
On a close reading of Rule 47, it clearly provides that accused can be tried summarily for the “civil offences” of simple heart and theft only, meaning thereby that except simple hurt and theft, no other offence shall be dealt with summarily under Rule 47, as such, the offence under Section 354 RPC of which the petitioner had been charged was excluded from the purview of the meaning of Section 46 of “civil offence” and cannot be tried by a Summary Security Force Court as classified under Section 64 read with Section 70 of the BSF Act 1968.
The case stemmed from allegations of petitioner Sumanta Dutta's involvement in the molestation of minor girls at the Old Golf Ground, SHQ BSF Baramulla, on July 31, 2004. The petitioner contended that the charges against him were false and frivolous and that the proceedings against him lacked proper inquiry and violated the provisions of the BSF Act and Rules.
Sumanta Dutta's plea sought several reliefs, including quashing the dismissal order, reinstatement with all consequential benefits, and declaring the proceedings against him as unconstitutional.
The respondents, representing the Union of India and various BSF authorities, argued that the petitioner had a history of disciplinary issues and that the trial proceedings were conducted in accordance with the BSF Act and Rules. They maintained that Sumanta Dutta's dismissal was justified based on the evidence presented during the trial.
Upon meticulous examination of the provisions of the BSF Act and Rules, particularly Rule 47, Justice Chowdhary held that the said section explicitly excludes offences under Section 354 of the Ranbir Penal Code from being dealt with summarily.
Expounding on the meaning of a “civil offence” defined in terms of section 2(d) of the Act as an offence which is triable in a “criminal Court” the bench observed,
“Section 46 which deals with „civil offences‟ stipulates that subject to provisions of section 47 any person subject to BSF Act 1968 who commits any "civil offence" shall be deemed to be guilty of an offence against the said Act and if charged therewith under section 46 of the BSF Act 1968, shall be liable to be tried by a Security Force Court and on conviction be punishable as mentioned in sub-clauses (a) & (b) of the said Section”.
In its observation, the bench clarified that Section 47 of the BSF Act specifically addresses the category of "civil offences" not triable by a Security Force Court. It elucidated that Rule 47 stipulates that, apart from simple heart and theft, no other offence shall be dealt with summarily.
Consequently, the bench underscored that the offence under Section 354 RPC, for which the petitioner was charged, fell outside the purview of Section 46's definition of "civil offence." As a result, it could not be tried by a Summary Security Force Court, as classified under Section 64 in conjunction with Section 70 of the BSF Act 1968, the bench underscored.
In the instant case, the court noted that a Summary Security Forces Court had been convened by the Commandant of 55 Bn BSF at Sopore which was not in tune with the rules as the Summary Court was out of jurisdiction to try a case of such nature.
“.. this Court is of the considered view for the aforesaid reasons that the Summary Security Force Court was not competent and lacked jurisdiction to try “civil offences” under Section 46 of the BSF Act 1968 except simple heart or theft thereby the punishment of dismissal from service so imposed on the petitioner cannot be sustained in the eyes of law”, the bench remarked.
Ruling that the dismissal order was a nullity in the eyes of the law in view of the said legal position the bench ordered Sumanta Dutta's reinstatement. However, the court clarified that the authorities were at liberty to prosecute him afresh in a competent Security Force Court if deemed necessary.
Case Title: Sumanta Dutta Vs Union of India
Citation: 2024 LiveLaw (JKL) 92
Sr. Advocate Surinder Kour, with Ms. Manpreet Kour, Advocate appeared for the petitioner, Mr. Vishal Sharma, DSGI with Mr. Anishwar Koul, CGSC represented the respondents