Calcutta High Court (Appellete Side)
David Masih vs Director General on 17 April, 2023
17.04.2023 IN THE HIGH COURT AT CALCUTTA
DL-12 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
WPA 6228 of 2023
David Masih
Vs.
Director General, Border Security Force & Ors.
Mr. Manjit Singh,
Mr. Gaganjyot Singh,
Mr. Biswajit Mal,
Mr. Akbar Laskar
...for the petitioner.
Ms. Chandreyi Alam,
Ms. Runu Mukherjee
....for Union of India.
Affidavit of service filed in Court today be
retained with the records.
The petitioner has challenged an order passed by
the Appellate Authority dated January 13, 2023
which was passed in compliance of an order dated
December 21, 2022 passed by this Bench in WPA
24260 of 2022.
Mr. Singh, learned counsel appearing on behalf
of the petitioner submits that the prayer for bail has
been rejected despite the order dated December 21,
2022. The petitioner has already served almost 2
years out of the entire period of sentence of 3 years.
Even then, the prayer for bail was not allowed.
Mr. Singh relies on a judgment passed in CM
No.16686 of 2011 in WP (C) No.7357 of 2011
(Mahesh Prasad Singh vs. Union of India and Anr.)
2
in support of his contention that bail should be
granted to the petitioner during the pendency of the
writ petition.
Ms. Alam, learned counsel appearing on behalf
of the respondents submits that after the appeal has
been disposed of, the petitioner has to serve his
sentence. There is no question of granting bail once
the appeal has been rejected by the authorities
concerned.
Considering the submissions of the parties and
the materials placed on record, this Court finds that
the case of Mahesh Prasad (supra) is distinguishable
on facts. In that case, the petitioner was found guilty
after being tried by General Security Force Court
(GSFC) on May 2, 2005 and the said order was
confirmed on August 24, 2005. However, there was
no question of the appeal being disposed of after the
order of GSFC was confirmed on August 24, 2005.
Therefore, there was no question of the punishment
granted by GSFC being accepted by the appellate
authority. In that case, the petitioner was released on
bail during the pendency of the writ petition subject
to fulfilment of the conditions. The said case is also
completely distinguishable on facts as two of the
prosecution witnesses were close relatives of the
deceased based on whose evidence the petitioner in
that case was convicted. Furthermore, one
prosecution witness (PW 11) testified in favour of the
petitioner but such evidence was disregarded.
Therefore, the prayer for interim bail is not allowed.
In the present case, the Appellate Authority has
accepted the order passed by the GSFC and the
confirming authority under the Border Security Force
(BSF) Act, 1968 and the BSF Rules, 1969 and the
same is subject matter of challenge in the present
writ petition.
The writ Court can only review the decision
making process but cannot sit in appeal over the
decision of the Appellate Authority.
Let an affidavit-in-opposition be filed within 6
weeks from date. Reply, if any, within 2 weeks
therefrom.
Parties will be at liberty to mention for inclusion
in the list "for hearing" upon completion of the period
directed for exchange of affidavits.
All parties shall act on the server copies of this
order duly downloaded from the official website of
this Hon'ble Court.
(Lapita Banerji, J.)
