Judgment · High Court

(A.K.Goel, C.J.) This petition was taken up on a letter received from convict Balbir Sing 1. h who was serving in the BSF and is alleged to have killed two BSF officers on 7 .6.2006. He was tried by General Security Force Court, Tripura. Vide order dated 2.3.2007, he was awarded the sentence of death. Against the order of death sent ence, he filed a petition under Section 117 of the BSF Act, 1968 to the authorit y, who had the power to confirm the sentence, which was rejected. Thereafter, he filed a petition to the Director General of BSF under Section 117(2) of the Ac t, which was also rejected. Learned Amicus Curiae submits that it was necessary for the Director Gen 2. eral of BSF to give him a hearing before his petition was rejected. In support o f this submission, reliance has been placed on a judgment of learned Single Judg e of the Punjab and Haryana High Court in Madan Singh Ex-Constable, 10th Battali on BSF -Vs.- Union of India, 1984 (3) SLR 424.

We are of the view that the judgment relied upon cannot be held to be la ying down the correct law in view of the judgment of the Hon’ble Supreme Court i n Union of India and another -Vs.- Ex Constable Amrik Singh, 1991 (1) SCC 654 holding that no personal hearing was required to be given under Section 117(2) o f the Act. However, in case of death sentence, it was necessary that the aggriev ed party is given either personal hearing or hearing through a counsel after the Security Forces Court passes an order. The hearing may be given either by the D irector General of BSF or by the confirming authority, before the death sentence is executed. This requirement can be held to be a requirement of fair procedure , which is part of Article 21 of the Constitution.

In the circumstances, we direct that before execution of the death sente nce, the petitioner may be given a hearing either in person or through counsel b y the Director General of BSF or by the confirming authority. The Director Gener al of BSF may, after due consideration, inform the petitioner about the time and place of hearing so that the petitioner may appear personally or through counse l to present his case against the death sentence awarded to him. Intimation may be sent to the petitioner within one month from the date of receipt of a copy of this order.