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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 624 OF 2013   (@SPECIAL LEAVE PETITION (CRL.) NO. 5910 OF 2012)

STATE OF J & K     … APPELLANT VERSUS

LAKHWINDER KUMAR & ORS.      …RESPONDENTS

WITH

CRIMINAL APPEAL NO. 625 OF 2013   (@SPECIAL LEAVE PETITION (CRL.) NO. 5911 OF 2012)

GHULAM MOHAMMAD SHEIKH     … APPELLANT

VERSUS

STATE OF J & K & ORS.      …RESPONDENTS

J U D G M E N T  

CHANDRAMAULI KR. PRASAD, J.

The allegation in the case is very distressing. A  

Kashmiri  teenager  lost  his  life  by  the  bullet  of  

Lakhwinder Kumar, a constable of the Border Security  

Force (hereinafter referred to as “the Force”) at the  

Boulevard Road, Srinagar.  He allegedly fired at the

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instigation  of  R.K.  Birdi,  Commandant  of  the  68th  

Battalion  of  the  Force.   The  cause  of  firing,  as  

alleged by the prosecution, if true, is appalling.  

R.K.  Birdi  on  5th of  February,  2010  had  gone  for  

Annual  Medical  Examination  at  Composite  Hospital,  

Humhama. While on  way back at 4.40 P.M. to the Force  

Headquarters  at  Nishat,  Srinagar,  accompanied  by  

other Force personnel, they got stuck in a traffic  

jam.   This  led  to  a  verbal  duel  with  some  boys  

present  at  Boulevard  Road,  Brain,  Srinagar.   The  

verbal duel took an ugly turn and the Force personnel  

started chasing the boys.  It is alleged that at the  

instigation of R.K. Birdi, constable Lakhwinder Kumar  

fired twice and one of the rounds hit Zahid Farooq  

Sheikh.   Zahid  died  of  the  fire  arm  injury  

instantaneously.  The  aforesaid  incident  led  to  

registration of FIR No. 4 of 2010 at Police Station,  

Nishat.   It  is  relevant  here  to  state  that  the  

Commandant  of  the  Force  by  his  letter  dated  

10.02.2010  handed  over  the  investigation  to  the  

police.  The case was investigated without any murmur  

by  the  local  police  and,  during  the  course  of  

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investigation,  both  R.K.Birdi  and  Lakhwinder  Kumar  

were arrested.  On completion of investigation, the  

police submitted the charge-sheet on 05th of April,  

2010  against  both  the  accused  for  commission  of  

offence under Section 302, 109 and 201 of the Ranbir  

Penal  Code  before  the  Chief  Judicial  Magistrate,  

Srinagar,  whereupon  an  application  was  filed  on  

behalf of the Force seeking time to exercise option  

for trial of the accused by Security Force Court.  

Accordingly, an application was filed by the Deputy  

Inspector  General,  Station  Headquarters,  Border  

Security  Force,  Srinagar  before  the  Chief  Judicial  

Magistrate, Srinagar on 6th of April, 2010 inter alia  

stating  that  the  criminal  case  is  pending  against  

R.K.  Birdi,  Commandant  and  Lakhwinder  Kumar,  

Constable and they are serving under his Command and  

both of them are in judicial custody. He went on to  

say that in exercise of his discretion under Section  

80  of  the  Border  Security  Force  Act,  1968  

(hereinafter referred to as “the Act”) he has decided  

to  institute  proceeding  against  them  before  the  

Security Force Court.  In the aforesaid premise it  

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was requested to stay the proceeding and to forward  

the  accused  persons  along  with  all  connected  

documents and exhibits for trial before the Security  

Force Court.  This application was filed in the light  

of  the  provisions  of  Section  549  of  the  Code  of  

Criminal Procedure, Svt. 1989, as in force in the  

State of Jammu & Kashmir.  It was further stated that  

the  outcome  of  the  trial  of  the  accused  shall  be  

intimated to the court as required under Rule 7 of  

the Jammu & Kashmir Criminal Courts and Court Martial  

(Adjustment of Jurisdiction) Rules, 1983.  The prayer  

of the Force was opposed by the State of Jammu &  

Kashmir  and  the  deceased’s  uncle  Ghulam  Mohammad  

Shiekh.  The Chief Judicial Magistrate by his order  

dated 25th of November, 2010 allowed the application  

filed by the Commandant and handed over the accused  

together  with  the  charge-sheet  and  other  materials  

collected by the investigating agency for trying the  

accused by the Security Force Court.   While doing  

so, the learned Chief Judicial Magistrate observed as  

follows:

“In the light of the above discussion it  has been shown that accused have committed  

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alleged offence while on active duty and  the  case  squarely  falls  within  1st  

exception  to  the  general  provisions  of  Section 47 of the BSF Act, for which option  is available to the applicant either to try  them at BSF Court or let the Criminal Court  of Ordinary jurisdiction to go ahead with  their trial.  In the instant case applicant  has  chosen  to  try  them  at  BSF  Court.  Therefore, this court has no option but to  hand-over  the  accused  together  with  the  charge-sheet and other material collected  by Investigating agency  to  the  applicant  for  trying  them  at  the  BSF  Court,  Application  is  therefore  accepted  and  accused are ordered to be handed over under  custody  so  the  applicant  together  with  charge-sheet and the supporting material as  well  as  all  the  seized  articles.   The  Officer  concerned  shall  try  the  accused  expeditiously and convey the final out-come  of the case to this court as soon as it is  completed”

Aggrieved by the aforesaid order Ghulam Mohammad  

Sheikh  and  the  State  of  Jammu  &  Kashmir  filed  

separate revision applications before the High Court.  

Both the applications were heard together by the High  

Court and have been dismissed by the impugned order  

dated 21st of October, 2011.  It is against this order  

the  State  of  Jammu  &  Kashmir  and  Ghulam  Mohammad  

Sheikh  have  preferred  separate  special  leave  

petitions under Article 136 of the Constitution of  

India.

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Leave granted.

We  have  heard  Mr.  Gaurav  Pachnanda,  Senior  

Advocate on behalf of the  appellant, the State of  

Jammu & Kashmir and Ms. Kamini Jaiswal, Advocate for  

the appellant, Ghulam Mohammad Sheikh.  We have also  

heard Mr. R.F. Nariman, learned Solicitor-General of  

India.  Despite service of notice, Respondent Nos. 1  

and  2  i.e.,  Lakhwinder  Kumar  &  R.K.  Birdi  

respectively have not chosen to appear.

It may be mentioned here that Section 47 of the  

Act bars trial of a person subject to the Act by a  

Security Force Court who has committed an offence of  

murder  or  of  culpable  homicide  not  amounting  to  

murder or rape in relation to a person not subject to  

the Act.  However, this bar will not operate if the  

person subject to the Act has committed the offence  

while on active duty.  In other words, if a member of  

the  Force  commits  offence  of  the  nature  specified  

above and the victim of crime is a civilian member,  

he cannot be tried by a Security Force Court but this  

bar  will  not  operate  if  the  offence  has  been  

committed  while  on  active  duty.   The  expression  

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‘active duty’ has been defined under Section 2(1)(a)  

of the Act, it reads as follows:

“2. Definitions.-(1) In this Act, unless the  context otherwise requires,-

(a)”active duty”, in relation to a person  subject to this Act, means any duty as a  member of the Force during the period in  which  such  person  is  attached  to,  or  forms part of, a unit of the Force-

(i)  which  is   engaged  in   operations  against an enemy, or

(ii) which is operating at a picket or  engaged on patrol or other guard duty  along the borders of India,

 and  includes  duty  by  such  person  during  any  period  declared  by  the  Central Government by notification in  the  Official  Gazette as a  period of  active duty with reference to any area  in  which  any  person  or  class  of  persons  subject  to  this  Act  may  be  serving;”

Aforesaid provision makes the duty of the nature  

specified therein to be active duty and includes duty  

declared by the Central Government by notification in  

the official Gazette. From a plain reading of the  

aforesaid, it is evident that any duty as a member of  

the Force and enumerated in clauses (i) and (ii),  

i.e.,  engaged  in  operations  against  an  enemy  or  

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operating at a picket or engaged on patrol or other  

guard  duty  along  the  borders  of  India  shall  come  

within the definition of active duty.  It shall also  

include  such  duty  by  the  member  of  the  Force  as  

active duty declared by the Central Government in the  

Official Gazette.   

The Central Government by Notification SO.1473(E)  

dated 8th of August, 2007 in exercise of the powers  

conferred under Section 2(1)(a) of the Act, had made  

a  declaration  that  the  duty  of  every  personnel  

serving  in  the  State  as  mentioned  in  the  said  

Notification for the period 01st of July 2007 to 30th  

of June, 2010, shall be ‘active duty’.  The State of  

Jammu & Kashmir is at Serial Number 16 of the said  

Notification.  

It is common ground that offence committed is a  

civil offence which is triable by a Criminal Court  

and at the time of commission of the offence, the  

accused  persons  were  not  engaged  in  any  operation  

against any enemy or operating at a picket or engaged  

on patrolling or other guard duty along the borders  

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of  India.   According  to  the  appellants,  accused  

persons were not engaged in the duty of the nature  

specified  above  pursuant  to  any  lawful  command,  

therefore, they cannot be said to be on active duty  

so as to give jurisdiction to the Force to try them  

before Security Force Court.  The learned Solicitor  

General does not join issue and accepts that accused  

persons  were  not  performing  duty  of  the  nature  

mentioned in clauses (i) and (ii) of Section 2(1)(a)  

of  the  Act,   but,  according  to  him,  in  view  of  

declaration  of  the  Central  Government,  their  act  

shall  come  within  the  inclusive  definition  of  

active duty.

There  is  no  connection,  not  even  the  remotest  

one, between their duty as members of the Force and  

the crime in question.  The situs of the crime was  

neither under Force control nor the victim of crime  

was in any way connected with the Force.  But, for  

the notification, these could have been sufficient to  

answer that accused persons were not on active duty  

at the time of commission of the crime.  However,  

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answer to this question would depend upon the effect  

of notification issued in exercise of the power under  

Section 2(1)(a) of the Act.  From a plain reading of  

this section it is evident that ‘active duty’ would  

include  duty  of  such  person  during  any  period  

declared by the Central Government by notification in  

the  Official  Gazette  as  a  period  of  active  duty.  

Section 2(1)(a) finds place in the definition section  

of the Act.   

It is well settled that legislature has authority  

to define a word even artificially and while doing  

so,  it  may  either  be  restrictive  of  its  ordinary  

meaning or it may be extensive of the same.  When the  

legislature  uses  the  expression  “means”  in  the  

definition  clause,  the  definition  is  prima  facie  

restrictive  and  exhaustive.   However,  use  of  the  

expression “includes” in the definition clause makes  

it extensive.  Many a times, as in the present case,  

the  legislature  has  used  the  term  “means”  and  

“includes”  both  and,  hence,  definition  of  the  

expression  “active  duty”  is  presumed  to  be  

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exhaustive.   In  our  opinion,  the  use  of  the  

expression  “includes”  enlarges  the  meaning  of  the  

word “active duty” and, therefore, it shall not only  

mean the duty specified in the section but those duty  

also as declared by the Central  Government in the  

Official Gazette.  The notification so issued by the  

Central Government states that “duty of every person”  

of  the  Force  “serving  in  the  State”  of  Jammu  and  

Kashmir “with effect from the 1st of July, 2007 to 30th  

of June, 2010 as active duty”.  The notification does  

not make any reference to the nature of duty, but  

lays emphasis at the place where the members of the  

Force are serving, to come within the definition of  

‘active duty’.  In view of the aforesaid, there is no  

escape from the conclusion that the accused persons  

were on active duty at the time of commission of the  

offence.  

The natural corollary of what we have found above  

is that the bar of trial by the Security Force Court  

provided in Section 47 of the Act would not operate.  

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Section  47  of  the  Act  which  is  relevant  for  the  

purpose reads as follows:

“47.  Civil  offences  not  triable  by  a  Security Force Court.- A person subject to  this Act who commits an offence of murder  or of culpable homicide not amounting to  murder  against, or of rape in relation  to, a person not subject to this Act shall  not be deemed to be guilty of an offence  against this Act and shall not be tried by  a Security Force Court, unless he commits  any of the said offences,-  

(a) while on active duty; or

(b) at any place outside India; or

(c) at any place specified by the Central  Government  by  notification  in  this behalf.”

The  aforesaid  provision  makes  it  clear  that  a  

member of the Force accused of an offence of murder  

or culpable homicide not amounting to murder or rape  

shall not be tried by a Security Force Court, unless  

the offence has been committed while on active duty.  

As  we  have  found  that  the  accused  persons  have  

committed the offence while on active duty within the  

extended meaning, the bar under Section 47 of the Act  

shall not stand in their way for trial by a Security  

Force Court.  The bar of trial by a Security Force  

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Court though is lifted, but it does not mean that the  

accused who had committed the offence of the nature  

indicated in Section 47 of the Act shall necessarily  

have to be tried by a Security Force Court.  In a  

given case, there may not be a bar of trial by a  

Security Force Court, but  still an accused can be  

tried by a Criminal Court.  In other words, in such a  

situation,  the  choice  of  trial  is  between  the  

Criminal Court and the Security Force Court.  This  

situation is visualized under Section 80 of the Act,  

which reads as follows:

“80.Choice  between  criminal  court  and  Security  Force  Court.-  When  a  criminal  court and a Security Force Court have each  jurisdiction in respect of an offence, it  shall  be  in  the  discretion  of  the  Director-General, or the      Inspector- General  or  the  Deputy  Inspector-General  within whose command the accused person is  serving or such other officer as may be  prescribed, to decide before which court  the proceedings shall be instituted, and,  if that officer decides that they shall be  instituted before a Security Force Court,  to direct that the accused person shall be  detained in Force custody.”

As we have observed above, in the present case,  

the Criminal Court and the Security Force Court each  

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have jurisdiction for trial of the offence which the  

accused persons are alleged to have committed.  In  

such  a  contingency  Section  80  of  the  Act  has  

conferred discretion on the Director General or the  

Inspector General or the Deputy Inspector General of  

the Force within whose Command the accused person is  

serving, to decide before which court the proceeding  

shall be instituted. Section 141 of the Act confers  

power on the Central Government to make rules for the  

purpose of carrying into effect the provisions of the  

Act. It is relevant here to state that the Central  

Government in exercise of the powers under Section  

141  (1)  and  (2)  of  the  Act  has  made  the  Border  

Security Force Rules, 1969, hereinafter referred to  

as  “the  Rules”.   Chapter  VI  of  the  Rules  is  in  

relation to choice of jurisdiction between Security  

Force Court and criminal court.  Thus, for exercise  

of discretion under Section 80 of the Act, Rules have  

been  framed  and  Rule  41  of  the  Rules,  which  is  

relevant for the purpose, reads as follows:

“41.  Trial  of  cases  either  by  Security  Force Court or criminal court.- (1) Where  an offence is triable both by a criminal  

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court  and  a  Security  Force  Court,  an  officer referred to in section 80 may,-

(i) (a) where the offence is committed by  the  accused  in  the  course  of  the  performance of his duty as a member  of the Force, or  

(b) where the offence is committed in  relation to property belonging to the  Government or the Force or a person  subject to the Act, or  

(c)  where  the  offence  is  committed  against a person subject to the Act,  

direct that any person subject to the  Act, who is alleged to have committed  such an offence, be tried by a Court;  and  

(ii) in any other case, decide whether or  not  it  would  be  necessary  in  the  interests of discipline to claim for  trial by a Court any person subject  to  the  Act  who  is  alleged  to  have  committed such an offence.

(2)  In  taking  a  decision  to  claim  an  offender  for  trial  by  a  Court,  an  officer referred to in section 80 may  take into account all or any of the  following factors, namely:-

(a) the offender is on active duty or  has been warned for active duty and  it is felt that he is trying to avoid  such duty;  

(b) the offender is a young person  undergoing  training  and  the  offence  is not a serious one and the trial of  the  offender  by  a  criminal  court  would materially affect his training.

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(c) the offender can, in view of the  nature  of  the  case,  be  dealt  with  summarily under the Act.”

Rule 2 (c) of the Rules defines Court to mean the  

Security Force Court. A bare reading of Rule 41(1)  

makes it evident that where the offence is committed  

in the course of the performance of duty as a member  

of the Force or where the offence is committed in  

relation to property belonging to the Government or  

the Force or a person subject to the Act or where the  

offence is committed against a person subject to the  

Act,  the  officer  competent  to  exercise  the  power  

under  Section  80  of  the  Act  may  direct  that  the  

members of the Force who have committed the offence,  

be tried by a Security Force Court.  The allegations  

in the present case do not indicate that the accused  

committed  the  offence  in  course  of  performance  of  

their duty as a member of the Force or in relation to  

property belonging to the Government or the Force or  

a  person  subject  to  the  Act  or  the  offence  was  

committed against a person subject to the Act.  In  

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that view of the matter, the aforesaid ingredients  

are not satisfied and, therefore, the jurisdictional  

fact necessary for trial of the accused persons by a  

Security Force Court does not exist.  Rule 41 (1)(ii)  

further authorizes the officer competent to exercise  

its power under Section 80 of the Act to decide as to  

whether or not it would be necessary in the interest  

of discipline to claim for trial by a Security Force  

Court.  It is worth mentioning here that Rule 41 (2)  

enumerates  the  factors  which  the  officer  competent  

under Section 80 of the Act is to take into account  

for taking a decision for trial of an accused by a  

Security Force Court.  None of the clauses of Rule  

41(1)(i) and 41(2) apply in the facts of the present  

case.  The condition under which the authority could  

exercise the discretion is provided under Rule 41(1)

(ii) of the Rules.    

We must answer here an ancillary submission. It  

is pointed out that the Rules made to give effect to  

the provisions of the Act has to be consistent with  

it  and  if  a  rule  goes  beyond  what  the  Act  

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contemplates or is in conflict thereof, the rule must  

yield to the Act. It is emphasized that Section 80 of  

the  Act  confers  discretion  on  the  Officer  within  

whose  Command  the  accused  person  is  serving  the  

choice  between  Criminal  Court  and  Security  Force  

Court without any rider, whereas Rule 41 of the Rules  

specifies  grounds  for  exercise  of  discretion.  

Accordingly,  it  is  submitted  that  this  rule  must  

yield to Section 80 of the Act. We do not find any  

substance in this submission.  

One  of  the  most  common  mode  adopted  by  the  

legislature conferring rule making power is first to  

provide  in  general  terms  i.e.,  for  carrying  into  

effect the provisions of the Act, and then to say  

that  in  particular,  and  without  prejudice  to  the  

generality of the foregoing power, rules may provide  

for number of enumerated matters.  Section 141 of the  

Act,  with  which  we  are  concerned  in  the  present  

appeal, confers on the Central Government the power  

to make  rules  is of  such a  nature.   It  reads  as  

follows:

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“141. Power to make rules.-(1) The Central  Government  may,  by  notification,  make  rules  for  the  purpose  of  carrying  into  effect the provisions of this Act.  

(2) In particular and without prejudice to  the  generality  of  the  foregoing  power,  such rules may provide for,-  

(a) the  constitution,  governance,  command and discipline of the Force;  

(b) the enrolment of persons to the  Force  and  the  recruitment  of  other  members of the Force;  

(c) the  conditions  of  service  including  deductions  from  pay  and  allowances of members of the Force;  

(d) the rank, precedence, powers of  command  and  authority  of  the  officers,  subordinate  officers,  under-  officers  and  other  persons  subject to this Act;  

(e) the removal, retirement, release  or  discharge  from  the  service  of  persons subject to this Act;  

(f) the  purposes  and  other  matters  required  to  be  prescribed  under  section 13;  

(g) the  convening,  constitution,  adjournment, dissolution and sittings  of  Security  Force  Courts,  the  procedure to be observed in trials by  such courts, the persons by whom an  accused  may  be  defended  in  such  

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“……….Section 15(1) confers wide powers on  the appropriate Government to make rules  to carry out the purposes of the Act; and  Section  15(2)  specifies  some  of  the  matters enumerated by clauses (a) to (e),  in respect of which rules may be framed.  It is well-settled that the enumeration of  the particular matters by sub-section (2)  will not control or limit the width of the  powers  conferred  on  the  appropriate  Government by sub-section (1) of Section  15; and so, if it appears that the item  added by the appropriate Government has  relation to conditions of employment, its  addition  cannot  be  challenged  as  being  invalid in law……..”

(Underlining ours)

The Privy Council applied this principle in the  

case of Emperor v. Sibnath Banerji, AIR 1945 PC 156,  

to uphold the validity of Rule 26 of the Defence of  

India Rules, which though was found in excess of the  

express power conferred under enumerated provision,  

but covered under general power.  Relevant portion of  

the judgment reads as under:

“Their Lordships are unable to agree  with  the  learned  Chief  Justice  of  the  Federal  Court  on  his  statement  of  the  relative positions of sub-sections (1) and  (2) of Section 2, Defence of India Act,  and  counsel  for  the  respondents  in  the  present appeal was unable to support that  

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statement, or to maintain that R.26 was  invalid.   In  the  opinion  of  their  Lordships, the function of sub-section (2)  is merely an illustrative one; the rule- making power is conferred by sub-section  (1), and “the rules” which are referred to  in the opening sentence of sub-section (2)  are the rules which are authorized by, and  made under,        sub-section (1); the  provisions of     sub-section (2) are not  restrictive of sub-section (1), as indeed  is expressly stated by the words “without  prejudice to the generality of the powers  conferred by sub-section (1).”  There can  be no doubt – as the learned Judge himself  appears to have thought – that the general  language  of  sub-section  (1)  amply  justifies the terms of R.26, and avoids  any of the criticisms which the learned  Judge expressed in relation to sub-section  (2).

Their  Lordships  are  therefore  of  opinion that Keshav Talpade v. Emperor,  I.L.R.  (1944)  Bom.  183,  was  wrongly  decided  by  the  Federal  Court,  and  that  R.26  was  made  in  conformity  with  the  powers  conferred  by  sub-section  (1)  of  Section 2, Defence of India Act………”

A constitution Bench of this Court in the case of  

Afzal Ullah v. State of Uttar Pradesh, AIR 1964 SC  

264, quoted with approval the law laid down by the  

Privy Council in the case of Sibnath Banerji (supra)  

and held that enumerated provisions do not control  

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the general terms as particularization of topics is  

illustrative in nature.  It reads as follows:

“13.  Even  if  the  said  clauses  did  not  justify the impugned bye-law, there can be  little doubt that the said bye-laws would  be  justified  by  the  general  power  conferred on the Boards by Section 298(1).  It is now well-settled that the specific  provisions such as are contained in the  several  clauses  of  Section  298(2)  are  merely  illustrative  and  they  cannot  be  read as restrictive of the generality of  powers prescribed by Section 298(1), vide  Emperor v. Sibnath Banerji, AIR 1945 PC  156. If the powers specified by Section  298(1)  are  very  wide  and  they  take  in  within their scope bye-laws like the ones  with which we are concerned in the present  appeal, it cannot be said that the powers  enumerated  under  Section  298(2)  control  the general words used by Section 298(1).  These latter clauses merely illustrate and  do not exhaust all the powers conferred on  the Board, so that any cases not falling  within  the  powers  specified  by  Section  298(2) may well be protected by Section  298(1), provided, of course, the impugned  bye-law can be justified by-reference to  the requirements of Section 298(1). There  can be no doubt that the impugned bye-laws  in  regard  to  the  markets  framed  by  Respondent No. 2 are for the furtherance  of municipal administration under the Act,  and so, would attract the provisions of  Section  298(1).  Therefore,  we  are  satisfied that the High Court was right in  coming to the conclusion that the impugned  bye-laws are valid.”

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In view of what we have observed above it is  

evident that Rule 41 of the Rules has been made to  

give effect to the provisions of the Act.  In our  

opinion,  it  has  not  gone  beyond  what  the  Act  has  

contemplated  or  is  any  way  in  conflict  thereof.  

Hence,  this  has  to  be  treated  as  if  the  same  is  

contained in the Act. Wide discretion has been given  

to the specified officer under Section 80 of the Act  

to  make  a  choice  between  a  Criminal  Court  and  a  

Security  Force  Court  but  Rule  41  made  for  the  

purposes of carrying into effect the provision of the  

Act had laid down guidelines for exercise of that  

discretion. Thus, in our opinion, Rule 41 has neither  

gone beyond what the Act has contemplated nor it has  

supplanted  it  in  any  way  and,  therefore,  the  

Commanding Officer has to bear in mind the guidelines  

laid for the exercise of discretion.  

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To test as to whether the Commanding Officer, who  

had exercised the power under Section 80 of the Act,  

satisfied  the  aforesaid  requirement,  it  is  apt  to  

reproduce  the  application  filed  by  him  in  this  

regard.   The  relevant  portion  of  the  application  

reads as follows:   

“Whereas  a  criminal  case  under  FIR  No.  04/201 of Police Station Nishat titled State  Vs. Lakhwinder Kumar and another is pending  against Lakhwinder Kumar and Randhir Kumar  Birdi before your Court for adjudication.

2. Whereas the said accused persons namely  Lakhwinder  Kumar  (No.  01005455  Constable  of  68  Bn  BSF)  and  Randhir  Kumar  Birdi  (Commandant  BSF)  are  serving under my command and,

3. Whereas in exercise of my discretion as  envisaged in Section 80 of the BSF Act,  1968,  I  have  decided  to  institute  proceedings  against  the  said  accused  persons  Lakhwinder  Kumar  and  Randhir  Kumar Birdi before the Border Security  Force Court.

4. Whereas,  the  accused  persons  i.e.  Lakhwinder  Kumar  and  Randhir  Kumar  Birdi  are  presently  under  judicial  custody and in your control.

5. I  therefore  request  you  to  stay  proceedings in your court against the  two accused persons and may forward all  connected  documents  and  exhibits  of  this case and custody of accused person  to the undersigned as per Section 549  

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of Cr.P.C. 1989 (J & K) for instituting  proceedings against them under the BSF  Act and Rules made thereunder.

6. That the outcome of the trial of the  accused  persons  by  Border  Security  Force Court of the result of effectual  proceedings instituted or ordered to be  taken against them shall be intimated  as per Rules 7 of the J & K Criminal  Courts and Court Martial (Adjustment of  Jurisdiction) Rules, 1983.”

The Commanding Officer, thus, has exercised his  

power under Section 80 of the Act and excepting to  

say that the said power has been exercised in his  

discretion, there is not even a whisper as to why  

said discretion has been exercised for trial of the  

accused  persons  by  a  Security  Force  Court.   The  

Commanding Officer has nowhere stated that the trial  

of the accused by Security Force Court is necessary  

in the interest of discipline of the Force.  Once a  

statutory guideline has been issued for giving effect  

to the provisions of the Act, in our opinion, the  

exercise  of  discretion  without  adherence  to  those  

guidelines shall render the decision vulnerable.  In  

our opinion, the Commanding Officer has exercised his  

power ignorant of the restriction placed on him under  

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the  Rules.   Having  found  that  the  Commanding  

Officer’s decision is illegal, the order passed by  

the learned Chief Judicial Magistrate as affirmed by  

the High Court based on that cannot be allowed to  

stand.

It has also been pointed out on behalf of the  

appellant that after lodging of the first information  

report, the Force voluntarily handed over the custody  

of accused Lakhwinder Kumar on 10th of February, 2010  

and R.K. Birdi on 4th of March, 2010 and allowed the  

investigation to be conducted by the police without  

any objection and did not exercise option for trial  

by Security Force Court.  Later on, such an option  

cannot be exercised, submits the learned counsel.  In  

support of the submission, reliance has been placed  

on a decision of this Court in the case of Joginder  

Singh v. State of H.P., (1971) 3 SCC 86, and our  

attention  has  been  drawn  to  Paragraph  29  of  the  

judgment which reads as follows:

“29. Rule 4 is related to clause (a)  of  Rule  3  and  will  be  attracted  only  when the Magistrate proceeds to conduct  

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the trial without having been moved by  the competent military authority. It is  no  doubt  true  that  in  this  case  the  Assistant Sessions Judge has not given a  written notice to the Commanding Officer  as envisaged under Rule 4. But, in our  view,  that  was  unnecessary.  When  the  competent  military  authorities,  knowing  full  well  the  nature  of  the  offence  alleged  against  the  appellant,  had  released him from military custody and  handed  him  over  to  the  civil  authorities,  the  Magistrate  was  justified  in  proceeding  on  the  basis  that  the  military  authorities  had  decided that the appellant need not be  tried by the Court-martial and that he  could be tried by the ordinary criminal  court.”  

This submission does not commend us.  As observed  

earlier, on the very date of filing of the charge-

sheet,  an  application  was  filed  on  behalf  of  the  

Force seeking time to exercise option for trial of  

the  accused  by  the  Security  Force  Court.   On  the  

following date such an application was filed.  At  

that  particular  point  of  time  the  trial  of  the  

accused persons had not commenced and before it could  

commence, the option was exercised.  As regards the  

authority of this Court in the case of Joginder Singh  

(supra), the same is clearly distinguishable.  In the  

said  case,  the  Criminal  Court  proceeded  with  the  

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trial of a military personnel without complying Rule  

4  of  the  Criminal  Courts  and  Court  Martial  

(Adjustment  of  Jurisdiction)  Rules,  1952,  which  

obliged the Criminal Court to give written notice to  

the Commanding Officer of the accused before trying  

the said accused.  The Criminal Court did not give  

any notice to the Commanding Officer and proceeded to  

try  the  accused  and  ultimately  conviction  was  

recorded.  Said conviction was assailed on the ground  

that the Criminal Court having proceeded to try the  

accused without giving any notice, the conviction is  

vitiated.  While  answering  the  said  question  this  

Court  took  into  consideration  the  conduct  of  the  

Commanding  Officer  of  releasing  the  accused  from  

military custody and handing over the accused to the  

authorities and in that background observed that the  

Criminal Court was justified in proceeding with the  

trial and failure to give notice to the Commanding  

Officer by the Criminal Court shall not vitiate the  

conviction.  Here, in the present case, the Force has  

exercised  his  option  for  trial  of  the  accused  

immediately  on  submission  of  the  charge-sheet  and  

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before the commencement of the trial.  Hence, the  

submission  made  has  no  substance  and  is  rejected  

accordingly.

In the facts and circumstances of the case, we  

give liberty to the Director General of the Force, if  

so advised, to re-visit the entire issue within eight  

weeks bearing in mind the observation aforesaid in  

accordance with law and if he comes to the conclusion  

that  the  trial  deserves  to  be  conducted  by  the  

Security  Force  Court,  nothing  will  prevent  him  to  

make  an  appropriate  application  afresh  before  the  

Chief Judicial Magistrate.  Needless to state that in  

case the Director General of the Force takes recourse  

to the aforesaid liberty and files application for  

the  trial  by  the  Security  Force  Court,  the  Chief  

Judicial  Magistrate  shall  consider  the  same  in  

accordance  with  law.   It  is  made  clear  that  

observations  made  in  these  appeals  are  for  the  

purpose of their disposal and shall have no bearing  

on trial.  

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 In the result, both the appeals are allowed, the  

impugned  judgment  and  order  of  the  Chief  Judicial  

Magistrate dated 25th of November, 2010 and that of  

the High Court dated 21st October, 2011 are set aside.  

The Security Force Court shall forthwith transmit the  

record sent to it, to the Chief Judicial Magistrate,  

Srinagar, who in turn shall proceed in the matter in  

accordance with law bearing in mind the observation  

aforesaid.

……………………..………………………………..J.  (CHANDRAMAULI KR. PRASAD)

……...….……….………………………………..J.                   (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI, APRIL 25, 2013  

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