Full Judgment Text
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CASE NO.:
Appeal (crl.) 788-789 of 1999
PETITIONER:
Shiv Parshad Pandey
RESPONDENT:
C.B.I. Through Director,New Delhi
DATE OF JUDGMENT: 05/03/2003
BENCH:
N.Santosh Hegde & B.P.Singh
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
These appeals are filed against the judgment and order dated
14th of September, 1988 made by the High Court of Punjab and
Haryana at Chandigarh in Criminal Revision No.805 of 1998 and
Criminal Misc. No.21520-M of 1997. In those proceedings, the
appellant had challenged the order dated 8.7.1998 made by the
learned Special Judge, C.B.I., Patiala by which charges were
framed against the appellant under Sections 7 and 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988. The
appellant sought for quashing of the said charges framed by the
learned Special Judge, C.B.I., Patiala. But the High Court by the
impugned order had dismissed the said petitions.
The facts necessary for the disposal of these appeals are as
follows:
The appellant belongs to the Indian Police Service from
Madhya Pradesh Cadre. While so serving, the appellant was
deployed on deputation in the Border Security Force (BSF) in the
year 1992. While he was in the BSF, one Assa Singh made a
complaint to the authorities of the BSF alleging certain misconduct
of accepting illegal gratification for showing official favour against
the appellant. Based on the said complaint of Assa Singh, a court
of enquiry was ordered by the BSF authorities on 27th of June,
1995 and an Additional DIG/Commandant STC BSF Khargaon
was appointed as Staff Court of Inquiry (SCOI) for that purpose.
The said SCOI examined certain witnesses including the
complainant Assa Singh and made a recommendation to the higher
authorities that necessary disciplinary action may be taken against
the appellant herein as per law. On the said recommendation of
SCOI, the Inspector General, BSF, Jalandhar on 13th of May, 1996
recommended that instead of initiating further action the appellant
may be awarded Director General’s "Severe Displeasure" for the
misconduct committed by the appellant.
Before any further action could be taken either on the
recommendations of the SCOI or the DIG, the appellant was
repatriated to his parent cadre of M.P. Police on 16th of July, 1996.
In the meantime, the complainant Assa Singh filed another
complaint against the appellant before the C.B.I., on the same fact
on which he had made the earlier complaint to the BSF authorities.
The CBI on completing investigation filed a charge-sheet before
the competent court on 23rd of April, 1997. Based on the report
filed by the CBI, the Special Judge, CBI, Patiala on 8.7.1998
framed charges and issued the charge-sheet to the appellant. It is
against the said framing of charges the appellant had filed
quashing petition before the High Court of Punjab and Haryana.
Since the Special Judge refused to stay the proceedings before him
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during the pendency of the petition before the High Court, the
appellant also filed a connected Misc. Petition praying for staying
of the proceedings before the Special Judge, CBI, Patiala. It is
those petitions which were disposed of by the High Court by the
impugned order.
Before the High Court the appellant had contended in view
of the provisions of Section 52 read with Section 57 of the Border
Security Force Act, 1968 (the BSF Act), the appellant cannot be
prosecuted before the Special Judge because the appellant was
already tried and awarded a minor punishment of severe
displeasure under Section 53 of the BSF Act, therefore, there
cannot be a second proceeding on the very same charge under the
Prevention of Corruption Act by the CBI. The High Court noticing
the fact that the award of DG’s "Severe Displeasure" by the DIG
BSF was only a recommendation and not actually an award of
punishment under the BSF Act rejected the said contention
advanced on behalf of the appellant. It also noticed the fact that
what transpired before the BSF authorities was only a court of
enquiry which was a preliminary fact finding step as per the BSF
Act and before any steps could be taken for awarding any
punishment to the appellant under the BSF Act, he was repatriated
to his parent department. In the said factual background, the High
Court held that Section 75 of the BSF Act cannot be attracted,
consequently dismissed the petitions before it.
Shri P.S.Mishra, learned senior counsel appearing for the
appellant before us contended that the Special Judge, CBI, Patiala
had no jurisdiction to try the case once initiated before the BSF
authorities under the said Act. He contended that in view of
Section 80 of the BSF Act, the Criminal Courts have no
jurisdiction to try an offence allegedly committed by the appellant
when he was serving in the BSF. He also contended that even the
preliminary question as to whether Security Force Court had
jurisdiction or not cannot be decided by a Criminal Court because
that is a question which has to be decided by the court under the
BSF Act only. His further contention is that in the instant case the
BSF authorities have invoked their jurisdiction and after an inquiry
wherein the witnesses were cross-examined on behalf of the
appellant made a recommendation which was partially accepted by
the IG who recommended awarding of Director General’s "Severe
Displeasure" thus the proceedings having been taken to a logical
conclusion, the Criminal Courts have no jurisdiction to try the
appellant on the very same charge which was once tried under the
BSF Act.
Per contra, Shri P.P.Malhotra, learned senior counsel
appearing for the respondent contended that in view of the fact that
the appellant was repatriated from BSF to his parent department,
he ceased to be an officer who is subject to the provisions of the
BSF Act, therefore, there is absolutely no bar for the CBI to
entertain a complaint against the appellant. Countering the other
legal arguments, Shri Malhotra contended in regard to offences
coming under the provisions of Prevention of Corruption Act, it is
the Criminal Courts of ordinary jurisdiction which has the
necessary authority to try a person accused of such offence under
the said Act, therefore, the contention of the learned counsel for
the appellant that the Criminal Courts under the ordinary law do
not have the authority to decide the question of initial jurisdiction
cannot be accepted. He also contends that the authorities under the
BSF Act have not initiated any trial on the complaint of Assa
Singh and what was done was only to hold a preliminary fact
finding exercise, hence, the argument of the appellant that there
was a trial and a punishment under the BSF Act cannot be
accepted.
For deciding the various issues which arise for our
consideration in these appeals, it is necessary for us to examine
certain provisions of the BSF Act and Rules. Section 3 of the said
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Act reads thus :
"3. Persons subject to this Act
(1) The following persons shall be subject to this
Act, wherever they may be, namely :-
(a) Officers and Subordinate Officers; and
(b) Under-officers and other persons enrolled under
this Act.
(2) Every person subject to this Act shall remain so
subject until retired, discharged, released, removed
or dismissed from the Force in accordance with the
provisions of this Act and the rules."
This section describes the persons who are subject to the
BSF Act. Sub-section (2) of this section makes it very clear that a
person once subject to that Act shall remain so subject only until
he retired, discharged, released, removed or dismissed from the
Force in accordance with the provisions of this Act and the Rules.
Thus it is to be noted here that as per this section once the
appellant ceased to serve the BSF in accordance with the
provisions of the Act and the Rules he ceases to be a person
subject to that Act. In the instant case, the appellant was deployed
to serve in the BSF while he was serving in the Indian Police
Service and on his repatriation to his parent department, he ceases
to be an officer with the BSF, therefore, by virtue of Sections 3(2)
of the BSF Act, the appellant ceases to be a person subject to the
BSF Act from such date of his repatriation.
Section 77 of the Act reads thus : -
"77. Trial, etc. of offender who ceases to be
subject to this Act
(1) Where an offence under this Act had been
committed by any person while subject to
this Act, and he has ceased to be so subject,
he may be taken into and kept in Force
custody and tried and punished for such
offence as if he continued to be so subject.
(2) No such person shall be tried for an offence
unless his trial commences within six months
after he had ceased to be subject to this Act;
Provided that nothing contained in this sub-
section shall apply to the trial of any such person
for an offence of desertion or for any of the
offences mentioned in Section 17 or shall affect
the jurisdiction of a criminal court to try any
offence triable by such court as well as by a
Security Force Court."
This section authorises the Border Security Force to arrest
and initiate proceedings and punish an offender who was subject to
the Act provided such person is tried for an offence under the Act
within six months after he has ceased to be subject to the Act.
In the case in hand, we notice that the appellant had ceased
to be a person subject to the BSF Act from 16.7.1996 and the
authorities under the said Act have not commenced any trial
against the appellant till a period of six months after his
repatriation to his parent cadre for that matter till date. Of course,
learned counsel for the appellant has contended that the initiation
of the fact finding enquiry referred to herein above would amount
to commencement or initiation of the trial. This argument of the
learned counsel will be dealt by us at an appropriate stage.
Section 80 of the Act reads thus :-
"80. Choice between criminal court and Security
Force Court When a Criminal Court and a Security
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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."
This section prima facie supports the argument of the
appellant to the extent when a Criminal Court and a Security Force
Court both have jurisdiction in respect of the same offence the
discretion to proceed or not to proceed under the BSF Act lies with
the Director General, or other officers specified therein within
whose command the accused person is serving. It must be noticed
herein that this Section applies only to such persons who "is
serving" in the Border Security Force and not to a person who
ceases to be an officer of the BSF at the relevant time. On facts we
have noticed that the Special Court, CBI took cognizance of the
complaint only after the appellant ceased to be subject to the Act
and after he was repatriated to his parent department that too much
later than six months of the period mentioned in Section 77(2) of
the BSF Act. Therefore, even this Section 80 would not apply to
the facts of this case.
Section 81 of the BSF Act reads thus :-
"81. Power of criminal court to require delivery of
offender
(1) When a criminal court having jurisdiction is of
opinion that proceedings shall be instituted
before itself in respect of any alleged offence, it
may, by written notice, require the officer
referred to in Section 80 at his option, either to
deliver over the offender to the nearest
Magistrate to be proceeded against according to
law, or to postpone proceedings, pending a
reference to the Central Government.
(2) In every such case the said officer shall either
deliver over the offender in compliance with
the requisition, or shall forthwith refer the
question as to the court before which the
proceedings are to be instituted, for the
determination of the Central Government
whose order upon such reference shall be
final."
This section also, in our opinion, applies only to an offender
who is subject to the BSF Act or against whom the security force
has initiated action under Section 77 of the Act within the period of
limitation prescribed therein. In the instant case, neither the
petitioner at the time the Criminal Court decided to proceed against
him was subject to the Act nor any trial was initiated by the
authorities under the said Act. Therefore, this section also does not
apply to the facts of the case.
The appellant then relied on certain Rules framed under the
BSF Act. They are Rule 41, Rule 45B, Rule 51A, Rule 53, Rule
65, Rule 66, Rule 170, to Rule 174.
Rule 41, we notice, applies only when Section 80 comes into
play which as already noticed by us, does not apply to the facts of
the case, hence, Rule 41 also would not apply.
Rule 45B refers to procedure to be adopted at a hearing of a
charge against an officer which is relied upon by the appellant to
show that a proceeding against the appellant had already been
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initiated by his Commandant. This Rule shows that after a
preliminary enquiry if the Commandant is satisfied on the
preliminary report he may dismiss the charge, if he comes to the
conclusion that there is no material against the offender or if he
comes to the conclusion on facts of the case that it is not advisable
to proceed further with the charge. In the instant case, on the facts
we have noticed after the SCOI who was empowered to enquire
into the complaint of Assa Singh submitted a report wherein he
recommended initiation of proceedings against the appellant, the
DIG on receipt of this report took a contrary view and
recommended Director General’s severe displeasure. It was then
open to an authorised officer either to accept the recommendation
of the Inquiry Officer or that of the DIG but in the instant case
matter remained in the cold storage till the appellant was
repatriated out of BSF to his parent post or for that matter even till
date. Therefore, it can be said that on receipt of the complaint from
Assa Singh, authorities under the BSF Act have only initiated the
preliminary action which is only an initial procedure contemplated
under Rule 45B and beyond that nothing was done either to drop
the proceedings, dismiss the charge or to commence a trial as
contemplated under the BSF Act.
Rule 51A refers to a procedure after hearing of the charge
under Rule 45B and this stage comes after preparation of record of
evidence. This Rule requires when an officer detailed to prepare
the record of evidence or abstract thereof, he will have to forward
the said record of evidence to the officer who ordered for its
preparation. This rule also provides that when such officer who
receives the record of evidence after going through the said record
may dismiss the charge, dispose of the case summarily if he is so
empowered, or refer the case to the competent officer for disposal
or may even apply to a competent officer to convene a General
Security Force Court for the trial of the accused.
In the instant case, pursuant to an order issued to the officer
concerned (SCOI) to prepare a record of evidence in regard to the
charge made against the appellant said officer had prepared the
record of evidence and forwarded the same to the IG, BSF who
referred the case to the competent superior officer for disposal, of
course, with his recommendation to impose a severe displeasure of
the Director General. But the competent officer that is the Director
General had not taken any action either to accept the
recommendation of the officer who recorded the evidence and who
recommended to initiate proceedings against the appellant or that
of the IG who recommended the imposition of a minor punishment
of recording a severe displeasure. The fact therefore is that the
competent officer under the BSF Act had not in fact initiated a trial
as contemplated under the above rule.
Rules 53(2) to 106 which falls in Chapter 8 and 9 of the
Rules provides for procedure to be followed when a competent
officer decides to refer the charge for a trial under the BSF Act. In
the instant case, it is a fact that no such procedure was initiated nor
a trial as contemplated under the Act and Rules was even
contemplated by the competent officer.
Bearing in mind the above provisions of the Act and the
Rules applicable to the facts in this appeal, if we consider the
argument of the learned counsel for the appellant, then we notice
as on the date when Special Court, CBI took cognizance of the
complaint against the appellant, he was not a person subject to the
BSF Act and the competent authority under that Act had not
initiated any trial against the appellant. What actually had
happened was that on a complaint made by Assa Singh, a
preliminary fact finding enquiry was initiated which body
recommended further proceedings against the appellant, but the IG
who received the report recommended the awarding of a minor
punishment of severe reprimand. But the competent authority did
not accept either of the recommendations but allowed the appellant
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to be repatriated to his parent department, consequently on the
lapse of six months after his repatriation under Section 77(2) of the
BSF Act, the BSF authorities ceased to have any disciplinary
jurisdiction on the appellant since he ceased to be subject to the
said Act. After that period, the appellant became subject to other
laws of the land. Therefore, the Special Court, CBI had the
jurisdiction to entertain a complaint against the appellant. The
further argument of the appellant that because of Section 80 and 81
of the BSF Act it is only the Security Forces Court under the BSF
Act that has the jurisdiction to try the appellant has also to be
negatived. The next argument of the learned counsel for the
appellant is that in fact the authorities under the BSF Act had
already punished the appellant by recommending the recording of
a severe displeasure of Director General, therefore, the CBI or for
that matter the Special Court could not have entertained another
complaint of Assa Singh on the same facts which would amount to
a second trial. We have already noticed that the recommendation
of IG for severe displeasure was never accepted by the competent
authority, hence, there is no question of a second trial by the CBI
Court. Herein, we may notice that the competent authority has also
not accepted the recommendation of the SCOI for further
proceedings, hence, entire proceedings against the appellant before
the competent authority stood abandoned without being taken to
any logical conclusion.
The learned counsel then argued in law initiation of
preliminary fact finding enquiry itself amounts to a trial.
Therefore, it should be held that when the appellant stood
transferred to his parent department the proceedings under the BSF
Act had already been initiated, therefore, it is only the BSF
authorities who could conclude the said trial under Section 77 of
the Act and the Special Court CBI could not have taken
cognizance on a complaint of Assa Singh since the trial had
already been started by the BSF authorities. This argument
proceeds on the basis that a trial contemplated under the BSF Act
had commenced on the complaint of Assa Singh by the initiation
of a preliminary enquiry. Therefore, we will have to examine
whether by starting a fact finding enquiry, does a trial commence
under the provisions of the BSF Act. A perusal of the provisions of
the Act and the Rules referred to hereinabove, in our opinion,
makes it clear that initiation of a preliminary enquiry which is only
to find out the existence of a case against the accused to initiate a
trial would not amount to the commencement of a trial under the
BSF Act. As a matter of fact, Rule 66 clearly indicates that
commencement of a trial takes place when an order convening the
court and the names of the officers appointed to try the accused is
read in the hearing of the accused in accordance with Section 84 of
the Act. The provisions of Chapter VII of the BSF Act read with
Rules 52, 53 and 65 of the Rules clearly indicate that a trial under
the Act could only start after the requirements of the said
provisions of the Act and Rules are complied with. We have
already noticed that the said requirements of the Act and Rules in
the instant case have not been complied with nor for that matter the
competent authority had taken a decision to initiate a trial. As a
matter of fact, we are of the considered view the said competent
authority had abandoned the proceedings against the appellant,
therefore, we do not think the learned counsel for the appellant is
correct in contending alternatively that a trial under the Act had
actually commenced and was pending. As a matter of fact when
exactly a trial under the BSF Act commences stands decided by the
judgment of this Court in the case of Union of India & Ors. vs.
Major General Madan Lal Yadav (Retd.) (1996 4 SCC 127). In the
said case considering the similar provision as to the
commencement of a trial in the Army Act, 1950, this Court held :
"In the light of the above discussion, we hold that the trial
commences the moment GCM assembles to consider the charge
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and examines whether they would proceed with the trial. The
preceding preliminary investigation is only part of the process of
investigation to find whether a charge could be framed and placed
before the competent authority to constitute GCM".
From the above declaration of law made by this Court, it is
clear until and unless the competent authority convenes the GCM
and the GCM assembles to consider the charge and examines
whether they would proceed with the trial, the trial does not
commence. This judgment has also in specific terms held that the
preliminary investigation conducted in such cases do not amount to
commencement of trial. As noticed by us herein above, in the
instant case, since the competent authority has not even decided to
convene a General Court Martial, we are of the considered opinion
that the argument of the learned counsel for the appellant that a
trial has commenced by the initiation of a preliminary enquiry
cannot be accepted. We may notice that the learned counsel for the
appellant has placed reliance on the following judgments of this
Court in the case of Delhi Special Police Establishment, New
Delhi vs. Lt. Col. S.K.Loraiya (1972 2 SCC 692), Superintendent
and Remembrancer of Legal Affairs, West Bengal vs. Usha Ranjan
Roy Choudhury & Anr. (1986 Suppl. SCC 190) and Union of India
through Major General H.C.Pathak vs. Major S.K.Sharma (1987 3
SCC 490) these cases pertain to officers who were still serving in
the forces, and the jurisdiction of civil courts to try such officers of
the Force and not in regard to officers who have ceased to be
officers of the Force, therefore, we do not think the above
judgment will be of any assistance to the appellant.
For the reasons stated above, we are of the opinion that since
the appellant had ceased to be an Officer of the BSF on the date of
his repatriation, he was no more subject to the BSF Act. We are
also of the opinion that the authorities under the BSF Act had not
initiated any trial against the appellant on the complaint of Assa
Singh. Consequently, a Special Judge, CBI had the jurisdiction to
take cognizance of the report filed by the CBI and also to frame
charges against the appellant.
In the said view of the matter, these appeals fail and the
same are dismissed.
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