Calcutta High Court (Appellete Side)
Vijay Prakash vs Union Of India & Ors on 5 October, 2021
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
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.
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
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
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.)
