Shri Sanjay Kumar vs Union Of India & Ors
2022 Latest Caselaw 504 Cal

11.02.2022            IN THE HIGH COURT AT CALCUTTA
 Sl. No.53           CONSTITUTIONAL WRIT JURISDICTION
    (PP)                     APPELLATE SIDE
                          (Via Video-Conference)

                             WPA 2310 of 2022

                            Shri Sanjay Kumar
                                   Vs.
                           Union of India & Ors.

                     Mr. Kishore Datta, Sr. Adv.,
                     Mr. Srijib Chakraborty,
                     Mr. Pankaj Agarwal,
                     Ms. Paramita Maity
                                               ....for the petitioner.

                     Mr. Rudra Jyoti Bhattacharjee,
                     Ms. Debjani Ghosal
                                   ....for the respondent nos.1 & 2.

The petitioner has challenged the order dated 4th

February, 2022 issued by the Deputy Inspector

General, Sector Head Quarter, Kolkata, Border

Security Force fixing 14th February, 2022 to be date

for commencement of trial under the General Security

Force Court (in short "GSFC") as against the

petitioner. The petitioner has also asked for stay of a

memo dated 17th January, 2022 by which the

petitioner was intimated about holding of the trial

under GSFC. The petitioner says that with regard to

an incident of cattle smuggling to Bangladesh

through BOP - Sodepur 'A' Coy and BOP - Soladana

'D' Coy, both of 85 Bn BSF during the intervening

night of 11th/12th April, 2019, there are two versions.

On the basis of one version a criminal complaint was

made before the Basirhat Police Station, being

Basirhat P. S. Case No.334 of 2019 dated 12th April,

2022 under Sections 323/325/326/352/353/

186/189/429 of the Indian Penal Code and Section

11 of Prevention of Cruelty to animals Act, 1960.

This complaint has ended in filing of a final report (in

short FRT) on 30th April, 2019 before the Court of the

learned A.C.J.M., Basirhat.

On the basis of the second version that the

petitioner being in commandant of 85 Bn BSF had

instructed his subordinates to allow smuggling of 220

cattle to Bangladesh, an investigation was conducted

by the Staff Court of Enquiry. On the basis of such

enquiry, the petitioner's case has been referred for

conducting the record of evidence (in short ROE) by

Arun Kumar, the Commandant and the Recording

Officer. On the basis of the ROE, the petitioner's case

has been referred for holding trial by GSFC, which is

to commence on 14th February, 2022.

The petitioner has referred to Section 80 of the

Border Security Force Act, 1968 (in short BSF Act)

and has contended that when both the Criminal

Court and Security Force Court have the jurisdiction

in respect of an offence, it is for the Director General

or the Inspector General or the Deputy Inspector

General within whose command the accused is

serving to decide before which court the proceedings

shall be instituted.

Admittedly, by making a police complaint before

Basirhat Police Station, the petitioner says that the

concerned officer had opted for proceedings against

the petitioner before the criminal court. It is

impermissible in law for the officer concerned after

having opted to approach the criminal court to fall

back and hold proceedings under Security Force

Court. The petitioner then refers to Rules 42 and 51A

of the Border Security Force Rules, 1969 (hereinafter

referred to as the BSF Rules). By referring Rule 42 of

the BSF Rules, the petitioner says that he has been

charged of an offence along with a civilian, who is not

subject to the BSF Act and whose identity is known.

In view of such provision, the petitioner cannot be

tried by GSFC. By referring to Rule 51A (iii) and (iv),

the petitioner says that no decision is reflected from

the order by which the petitioner's case was referred

to a superior officer after recording of evidence. The

competent authority has also not disclosed any

reason for which it was decided to convene a GSFC

for the trial of the petitioner.

The petitioner, therefor, prays for stay of the

order dated 4th February, 2022 in aid of the final relief

till disposal of the writ petition.

On behalf of the respondents, it is submitted

that the offence for which the petitioner is charged

with, relates to smuggling of cattle through

international border, which is serious in nature. The

petitioner, being the second man in commandant is

accused of having instructed his subordinates for

allowing smuggling of cattle through two different

points of the Indo-Bangladesh border. The

seriousness of charges will also appear from the

evidence recorded by the Commandant and the

Recording Officer. No interference, therefor, should

be made at the trial by the GSFC. The respondents

further say that the petitioner instead of invoking the

writ jurisdiction should cooperate at the trial if he

claims to be innocent. The respondents have relied

upon a judgment reported in AIR 1998 SC 577 (Union

of India v. A. Hussain). By referring to paragraph 22

of Major A. Hussain (supra), the respondents say that

this is not a fit case where interference at the stage of

commencement of the trial by GSFC is required to be

made to stall the trial.

After hearing the parties and considering the

materials on record, I find that certain specific

allegations have been made as against the petitioner

by his employer. The employer on stage wise basis as

provided in the BSF Act and Rules has proceeded

against the petitioner. The Court loathe in interfering

with a trial by GSFC unless patent illegality is

demonstrated from the face of record for which Court

need not wait any further. In the instant case, none

of the grounds shown by the petitioner are such that

interference to the trial by GSFC is to be made at this

stage to stay even its commencement.

The matter requires to be heard after affording

the respondents an opportunity to disclose their

stand.

The interim order of stay of the trial by GSFC as

prayed for by the petitioner is rejected at this stage.

The petitioner shall cooperate at the trial by

GSFC which should be held strictly in accordance

with law. The petitioner will be entitled to assistance

of a defence counsel as permissible under the said Act

and Rules. The petitioner shall be free to take all the

points canvassed before this Court at the trial before

GSFC. The result of the trial by GSFC as against the

petitioner shall abide by the result of the writ petition.

This limited interim protection is granted to the

petitioner as the final order may be passed on

completion of trial before the writ petition reaches the

stage of final hearing which will render the writ

petition infructuous.

Let affidavit-in-opposition be filed within eight

weeks from date. Reply, if any, thereto be filed by

three weeks thereafter.

Liberty to mention for inclusion in the list under

the heading "Hearing" after twelve weeks.

(Arindam Mukherjee, J.)