05.10.2021 IN THE HIGH COURT AT CALCUTTA
Sl. No.45 CONSTITUTIONAL WRIT JURISDICTION
sb APPELLATE SIDE
WPA 31234 of 2017
With
CAN 2 of 2021
And
CAN 1 of 2019 (CAN 8988 of 2019)
Vijay Prakash
Vs.
Union of India & Ors.
Mr. Kallol Basu,
Mr. Somopriyo Chowdhury,
Mr. Bratin Kumar Dey
....for the petitioner.
Mr. Dayashankar Mishra,
Mr. Goutam Sardar
....for Union of India.
CAN 2 of 2021 is an application, inter alia,
for suspension of sentence.
The facts leading to filing of this
application is as follows:
The petitioner was held guilty by the
General Security Force Court (in short, GSFC),
constituted in terms of sections 64 and 68 of the
Border Security Force Act, 1968 (hereinafter
referred to as the 'BSF Act'). The petitioner was
sentenced to life imprisonment and his service was
also terminated by an order of GSFC dated 17th
April, 2012. The GSFC exercised its power under
section 72 of the said Act. The petitioner challenges
the order of GSFC before the Director General of
2
BSF which was dismissed by an order dated 4th
April, 2013. The sentence given by GSFC was also
confirmed by the said order. The petitioner was
sent to civil prison in execution of the sentence.
Challenging the order of the GSFC as also
the order of the Director General, BSF, the writ
petition was filed on or about 21st December, 2017.
The writ petition is now pending final hearing after
completion of affidavits.
The petitioner has been granted parole by
the Jail Authorities and is presently enjoying such
parole, which as I am told, is going to expire on 26th
October, 2021.
The petitioner says that he had made an
application for suspension of sentence before the
authority concerned in terms of the provision of
section 130 read with section 117(2) of the BSF
Act. According to the information received by the
learned advocate for the petitioner, the petitioner's
application so made to the Competent Authority
through the Jail Authorities, where he was serving
the sentence prior to release on parole has been
forwarded to the authority concerned by a memo
no.471/W/O dated 1st February, 2019. The
petitioner says that this application has not yet
been disposed of.
3
The petitioner relies on a Single Bench
judgment of Rajasthan High Court dated 23rd
September, 2013 passed in S.B. Civil writ petition
No.8720 of 2013 (Narendra Bahadur Yadav vs.
Union of India) and a subsequent judgment on the
same matter dated 14th May, 2014 and submits
that the High Court in exercise of its writ
jurisdiction can also suspend the sentence and
invites this Court to suspend the sentence.
On behalf of the respondents it is
submitted that the writ petition is not maintainable inasmuch as the petitioner had filed a writ petition on the selfsame cause before the Delhi High Court, being W.P (C) No.4462 of 2013 and also filed an application for bail therein. The bail was rejected on 31st October, 2013. The writ petition was withdrawn without leave to file afresh on December 11, 2014. In absence of leave no writ petition can or could have been filed according to the respondents. The petitioner on this issue says that the writ petition was withdrawn due to lack of territorial jurisdiction on advice and as such writ petition filed before this Court is maintainable.
The scope of the writ petition is challenged to the propriety of the order passed by the GSFC and the order of the Director General, BSF. The suspension of sentence has not been directly 4 sought for in the writ petition. The petitioner has invited this Court in exercise of its jurisdiction under Article 226 of the Constitution of India to grant the suspension of sentence. The judgment relied upon by the petitioner was in a case when the writ petition was filed at the pre-confirmation stage of the sentence which is not in this case. The sentence in the instant case has been confirmed and as such the ratio of the said judgment is not applicable to the instant case. The respondents' submission cannot also be accepted as the order relied upon by them is in an application for bail and not suspension of sentence. It is correct that the writ petition before the Delhi High Court was withdrawn without leave to file afresh but at this stage when such maintainability point was not urged at the threshold when the writ petition before this Court was filed, the writ petition cannot be held to be not maintainable unless finally heard.
This application is incidentally the second application for suspension of sentence filed in the instant writ petition, although the first application, being CAN 8988 of 2019 is still pending and had been directed to be heard along with the writ petition by an order dated 13th November, 2019. The said second application has not yet been disposed of.
5
A sentence can be suspended under the provisions of Section 130 read with section 117(2) of the BSF Act.
On a reading of the various provisions of the BSF Act and the Rules framed thereunder, it appears to me that the same is a complete Code in itself. In fact, in cases where an employee of the BSF is charged of criminal offence and is ordinarily to be tried by the jurisdictional Magistrate and/or the Sessions Court as the case may be, the GSFC has the power to hold trial even in such a case by themselves. The petitioner in the instant case was charged amongst other with an offence under section 302 of the Indian Penal Code 1860 (in short, IPC). This offence is ordinarily triable by the Criminal Court in terms of the provisions of the Code of Criminal Procedure 1973 (in short, Cr.P.C), but by dint of powers conferred under the BSF Act, the GSFC tried the petitioner. This emboldens the view that BSF Act is a complete code in itself. The suspension of the sentence therefor, has been prayed as per the provisions of the BSF Act.
On a harmonious reading of the provisions of section 117(2) and 130 of the BSF Act, I am of the view, that primarily an application has to be made to the concerned authority following the provisions of section 130, even in a case where the 6 sentence has been confirmed and the propriety of the order is under challenge before a High Court in writ jurisdiction.
Taking a lenient view of the petitioner's prayer for suspension of sentence as made in the application, being CAN 2 of 2021, despite a previous application on the selfsame cause is pending, I think justice will be sub-served if I direct the petitioner to make a fresh application/representation before the Director General, Border Security Force, being the respondent no.3 in the instant writ petition for suspension of sentence in terms of the provisions of section 130 read with section 117(2) of the BSF Act, by 25th October, 2021.
In the event, such application is made, the Director General, Border Security Force shall decide the same irrespective of the fact whether the previous application said to have been forwarded by the Jail Authorities on 1st February, 2019, has been disposed of or not.
The entire exercise shall be concluded within a period of three (3) months from the date of the petitioner making such application and/or representation.
In the event, the respondent no.3, to whom the application and/or representation is 7 directed to be made is of the view that he is not the Competent Authority to suspend the sentence then he shall forward such application and/or representation of the petitioner to the authority concerned who according to him is competent to take cognizance of the petitioner's application and consider the prayer for suspension of sentence.
This order is passed considering the prayer for suspension of sentence made by the petitioner is a consequential relief sought for during the pendency of the writ petition though the same has not been directly prayed for in the writ petition.
Nothing further remains to be adjudicated in this application. CAN 2 of 2021 is disposed of accordingly without any order as to costs.
In view of the order passed in CAN 2 of 2021, CAN 1 of 2019 (CAN 8988 of 2019) also stands disposed of.
Since I have not called for any affidavits, allegations made in the application are deemed to have not been admitted by the respondents.
The writ petition will be heard on merits as per the convenience of the Court.
(Arindam Mukherjee, J.)