CONSTITUTIONAL WRIT JURISDICTION v. Union of India & Ors.

Judgment

1. Both writ petitions are taken up together for disposal by a common judgment since similar issues are involved in both the writ petitions filed by the petitioner, Ex. CT. Vijay Prakash. FACTS LEADING TO FILING OF TWO WRIT PETITIONS:

2. In the first writ petition being WPA No. 31234 of 2017, the writ petitioner has assailed the order dated 04.04.2013 passed by the Director General, Boarder Security Force (herein referred to as The D.G, BSF), Block-10, CGO Complex, New Delhi -110003 in appeals/representations filed by the Jail Authority as well as through his counsel under Section 117 of Boarder Security Force Act, 1968 (BSF Act) thereby declared the petitioner as guilty and further confirmed the judgment and order of conviction dated 17.04.2012 passed by Learned General Security Force Court (hereinafter referred to as ‘GSF Court’) in a Trial, No. 941062422 Constable Vijay Prakash of 140 BN BSF, whereby convicted him for an offence committed under Section 46 of the Boarder Security Force Act, 1968 that is say for murder and attempt to murder punishable under Sections 302 3 and 307 of the Indian Penal Code, 1860 and sentenced him “To Suffer Life imprisonment and to be dismissed from service”. The contention of the Petitioner is that appeal was considered by the Respondent No. 3 only on the basis of aforesaid written representations/ appeals. No proper appreciation or marshalling of evidences either oral or documentary adduced by the Prosecution have been taken into consideration by the Respondent No. 3. Surprisingly, no opportunity was afforded to the Petitioner to place the case through his learned counsel and thereby violated the principles of natural justice. The Respondent No.3 decided the case without applying his judicious mind and finally confirmed the judgment and order dated 17.04.2012 passed by the GSF Court illegally and erroneously contending therein simply that the appeal is devoid of merit. Feeling aggrieved by and dissatisfied with the order dated

04.04.2013 passed by the Respondent No. 3/the D.G, BSF, the writ petitioner had earlier preferred a Writ Petition being WP(C) No. 4462 of 2013 before the Hon’ble High Court of Delhi at New Delhi through his earlier counsel on the impression that the territorial jurisdiction lies before the Delhi High Court as the head office of the Appellate Authority is situated in New Delhi. In the said writ petition, the 4 Hon’ble High Court of Delhi on several occasions, directed to file reply and rejoinder to the parties but at the time of hearing, a preliminary question of territorial jurisdiction was raised by the respondents since the alleged incident took place within the State of West Bengal and Trial held in West Bengal on the basis of case originated in the West Bengal. Accordingly, the writ petitioner had to seek before the Hon’ble High Court of Delhi for withdrawal of the writ petition and the said prayer for withdrawal of the said writ petition was simply allowed on 11.12.2014 by the Hon’ble High Court of Delhi.

3. Thereafter, the writ petitioner filed first writ petition being WPA No. 31234 of 2017 before this court seeking for setting aside and/or quashing of the purported order dated 04.04.2013 passed by the D.G, BSF and impugned judgment and order dated 17.04.2012 passed by the General Security Force Court with other consequential relief.

4. The said first writ petition was heard by Hon’ble Justice Arindam Mukherjee of this Court on 05.10.2021 and after hearing and considering the provision laid down in Border Security Force Act 5 and Rules framed thereunder, His Lordship was pleased to pass an order, inter alia, as follows: “A sentence can be suspended under the provisions of Section 130 read with section 117(2) of the BSF Act. On a reading of the various provisions of the BSF Act and the Rules framed thereunder, it appears to me that the same is a complete Code in itself. In fact, in cases where an employee of the BSF is charged of criminal offence and is ordinarily to be tried by the jurisdictional Magistrate and/or the Sessions Court as the case may be, the GSFC has the power to hold trial even in such a case by themselves. The petitioner in the instant case was charged amongst other with an offence under section 302 of the Indian Penal Code 1860 (in short, IPC). This offence is ordinarily triable by the Criminal Court in terms of the provisions of the Code of Criminal Procedure 1973 (in short, Cr.P.C), but by dint of powers conferred under the BSF Act, the GSFC tried the petitioner. This emboldens the view that BSF Act is a complete code in itself. The suspension of the sentence therefore, has been prayed as per the provisions of the BSF Act. On a harmonious reading of the provisions of section 117(2) and 130 of the BSF Act, I am of the view, that primarily an application has to be made to the concerned authority following the provisions of section 130, even in a case where the sentence has been 6 confirmed and the propriety of the order is under challenge before a High Court in writ jurisdiction. Taking a lenient view of the petitioner’s prayer for suspension of sentence as made in the application, being CAN 2 of 2021, despite a previous application on the self-same cause is pending, I think justice will be sub- served I direct the petitioner to make a application/representation before the Director General, Border Security Force, being the respondent no. 3 in the instant writ petition for suspension of sentence in terms of the provisions of Section 130 read with Section 117(2) of the BSF Act, by 25th October, 2021. In the event, such application is made, the Director General, Border Security Force shall decide the same irrespective of the fact whether the previous application said to have been forwarded by the Jail Authorities on 1st February, 2019, has been disposed of or not. The entire exercise shall be concluded within a period of three months from the date of the petitioner making such application and/or representation. In the event, the respondent no. 3, to whom the application and/or representation is directed to be made is of the view that he is not the Competent Authority to suspend the sentence then he shall forward such application and/or representation of the petitioner to the authority concerned who according to him is competent to take cognizance of the petitioner’s application and consider the prayer for suspension of sentence. 7 This order is passed considering the prayer for suspension of sentence made by the petitioner is a consequential relief sought for during the pendency of the writ petition though the same has not been directly prayed

for in the writ petition.”

5. In pursuant to the aforesaid order passed by the Co-ordinate Bench of this court on 05.10.2021, petitioner made a fresh application/representation dated 18.10.2021 before the Respondent No. 3 on 19.10.2021 which was received by the Office of Respondent No. 3 on 21.10.2021 but unfortunately, the order of the Hon’ble Court was not complied and concluded within a period of three months. As such, the petitioner issued a contempt notice upon the Respondent No. 3 and upon receipt of the contempt notice, the Respondent No. 3 passed an order immediately on 29.04.2022 thereby disallowed the prayer for suspension of sentence rather again confirmed the judgment and order passed by the GSF Court on

29.04.2022 holding therein that the case is not fit for suspension of sentence and affirmed the judgment of conviction and sentence passed as aforesaid. 8

6. Thereafter, Petitioner having no other efficacious alternative remedy against the impugned order dated 29.04.2022 passed by the D.G, BSF , filed a second writ petition being WPA 15518 of 2022 on

13.07.2022 with more or less similar payers seeking to quash and set aside the purported order dated 29.04.2022 passed by Respondent No. 3 and also direction for release of the Petitioner (now in jail) on suspension of the sentence dated 17.04.2012 passed by the GSF Court with consequential reliefs on several grounds as under : - i) The Respondent No. 3 neither considered the points as raised by the Petitioner nor properly appreciated the oral and documentary evidences brought on record by the prosecution; ii) The Respondent No. 3 has not afforded an opportunity of hearing to the petitioner as such he grossly violated the principles of natural justice; iii) The judgment and order passed by the learned GSF Court is based on surmises and conjectures and same is liable to be set aside; iv) The GSF Court ignored the oral evidence of the eye witnesses i.e. P.Ws. 3, 9, 14, 15 and 18. They did not 9 support the prosecution case though they were present at the place of occurrence; v) The learned GSF Court did not consider specially the independent vital public eye witnesses i.e. P.Ws. 9 and 18, who did not support the prosecution version in any manner and blot out the entire prosecution case; vi) The learned GSF Court also did not consider the evidence of eye witnesses who state that originally a scuffle took place in between BSF ‘G’ and petitioner and thereby an incident of firing occurred; vii) The learned GSF Court did not consider that the prosecution has failed to prove the motive or intention or pre-meditation of the BSF Jawan/Petitioner thereby illegally convicted and sentenced the petitioner under Sections 302/307 of the IPC read with Section 46 of the BSF Act, 1968 is liable to be set aside; viii) The learned GSF Court did not consider the material contradictions and inconsistency in the statements of the officials and public witnesses and thereby grossly ignored the entire material evidences adduced by the Prosecution 10 and convicted and sentenced the petitioner though he is entitled to get benefit of doubts; ix) The Respondent No. 3 did not consider that the petitioner has already suffered more than 11 years’ imprisonment without any fault; x) The learned GSF Court as well as Respondent No. 3 have infringed the fundamental rights of the petitioner and imposed incorrect conviction and sentence calls for immediate judicial intervention by this Court under its writ jurisdiction; xi) The learned GSF Court did not consider the alleged incident/ offences come within the purview of Section 304 II of the Indian Penal code; xii) The learned GSF Court or the Respondent No. 3 further erred in holding that the prosecution proved the case under Section 307 of the IPC though it does not attract in the instant case.

7. Both writ petitions were assigned before this Bench by the Hon’ble Chief Justice for disposal. Hence, both writ petitions are taken up for disposal. 11 FACTS OF THE CASE:

8. The factual matrix of the case is relevant for the purpose of disposal of the instant case as under: On 01.12.2010 at about 17.00 hrs Constable No. 94106242 Vijay Prakash, petitioner herein and Constable No. 02145820 Sanjeev Kumar Rai while returning from OP duty stopped at the shop of a Civilian, Shri Jogai Sarkar to purchase gutka and cigarette etc. which is about 300 yards away from BOP Satimari. Ct. Sanjeev Kumar Rai who was his buddy pair waited for some time but Ct. Vijay Prakash told Ct. Sanjeev Kumar Rai to go to BOP Satimari, he will come soon. When Ct. Sanjeev Kumar Rai reached at BOP Satimari, Offg Coy Commander No. 77287006 Inspr Md. Yaqub inquired about his buddy pair, and then Ct. Sanjeev Kumar Rai informed that the petitioner has consumed liquor. He is standing at the shop of Jogai Sarkar in the village in intoxicated condition. Immediately, Inspector Md. Yaqub, Offg Coy Commander along with No. 86005119 HC (G) Tarsem Lal and No. 94403510 CT/DVr Gulam Mohammad left to bring Ct. Vijay Prakash back to BOP. On reaching at the shop of Shri Jogai Sarkar, Inspr Md. Yaqub saw Ct. Vijay Prakash arguing with 12 the shop keeper, upon enquiring, Shri Jogai Sarkar said that he was telling Ct. Vijay Prakash to go to BOP as he is in intoxicated condition but he was not ready to go from the shop. Inspr. Md. Yaqub, Offg Coy Commander also told the petitioner to proceed towards the BOP but he did not move. Offg Coy Comdr reported the entire matter to the Adjutant of the unit on mobile. On this, the petitioner became furious and went towards the other side of the road where his bicycle was standing and suddenly cocked his personal weapon 5.56 mm INSAS Rifle Butt No. 584, body no. 16610357 and started firing indiscriminately towards the shop where Inspr. Md. Yaqub, Offg Coy Commander, HC (G) Tarsem Lal and some other civilians were standing. Tarsem Lal saw Ct. Vijay Prakash cocking his personal weapon, rushed towards him to prevent him from firing, but in the process of preventing such firing, he was hit by bullet in his right hand. The petitioner started firing, Inspr. Md. Yaqub, Offg Coy Commander, HC (G) Tarsem Lal and other civilians, who were standing near the shop, ran away from the site towards the village Chandipur to save them from the firing. Ct. Vijay Prakash also escaped from the spot by taking advantage of darkness after firing. On hearing the sound of fire, CQMH of the Coy No. 87009666 HC Satheesan N K took out a party of 10-12 personnel available in the 13 coy for rescue towards the place of occurrence. When the rescue party reached about 100 yards from the BOP, No. 02145874 Ct. Addya Prasad saw bicycle of Ct. Vijay Prakash lying on the ground along with his personal weapon and a carry bag containing a pouch which contained one filled magazine with 20 Rds of 5.56 mm INSAS and one empty Mag and one Mag containing 20 Rds of 5.56 mm INSAS was fitted on weapon. Later the rescue party saw that Inspr. Md. Yaqub, Offg Coy Commander was being beaten by civilian as such the party immediately rescued him. During the firing, one civilian namely, Gopal Tudu, S/o John Tudu aged about 21 years of Vill- Chandipur (Satimari) was hit by a bullet in his abdomen. Immediately, the civilians removed the injured civilian to PHC Kushmandi, who after the first aid was further referred to Dist. Hospital Raiganj. Thereafter, Gopal Tudu was further referred by the treating doctor at Dist. Hospital Raiganj to North Bengal Medical College and Hospital, Siliguri, where he succumbed to his injuries on

02.12.2010 at about 06.30 hrs. HC (G) Tarsem Lal also sustained bullet injury in his right hand was also removed to SHQ BDF Hospital Raiganj, where after the first aid, he was further referred to Dist. Hospital, Raiganj. Wherefrom he was further referred to BSF Composite Hospital, Kadamtala on 02.12.2010 and, thereafter, on 3rd 14 Dec, 2010 sent to Anandlok Hospital, Siliguri where he remains admitted till 13th Dec, 2010. After the incident, a civilian, father of deceased lodged an FIR against the petitioner under Section 302 IPC resulting in registration of Kushmandi P.S. GDE No. 85 dated

02.12.2010, corresponding to Kushmandi P.S. Case No. 106/10 dated 02.12.2010 under Section 302 IPC. On the same line, BSF also lodged another FIR on issue of firing and murder of one civilian etc. Subsequently, the case was transferred on 29th September, 2011 for trial to the learned General Security Force Court from the Ld. Court of ACJM, Gangarampur at Buniadpur as per the provision of BSF Act, 1968. CHARGES FRAMED BY THE LEARNED GSF COURT:

9. Charges were framed against the accused no. 941062422 Constable Vijay Prakash of 140 Bn BSF as follows: First charge BSF Act- 1968 Committing a civil offence that Section 46 is to say murder, punishable under Section 302, IPC: In that he, on 01.12.2010 at about 18.45 hrs., at village 15 Chandipur, P.S. Kushmandi, District- Dakshin Dinajpur (West Bengal) by firing with his service rifle INSAS Butt No. 584, Body No. 16610357, at Sri Gopal Tudu, a civilian, aged about 21 years son of Sri John Tudu, R/o Chandipur, P.S. Kushmandi, District- Dakshin Dinajpur (West Bengal), caused the death of said Gopal Tudu thereby committed murder. Second Charge BSF Act- 1968 Committing a civil offence that Section 46 is to say attempt to murder, punishable under Section 307, IPC: In that he, on 01.12.2010 at about 18.45 hrs, at village Chandipur, P.S. Kushmandi, District- Dakshin Dinajpur (West 16 Bengal) fired with his service rifle INSAS Butt No. 584, Body No. 16610357, at No. 77287006, inspector Md. Yaqub of 140 Bn BSF, with intent to kill him. Third Charge BSF Act- 1968 Committing a civil offence that Section 46 is to say attempt to murder, punishable under Section 307, IPC: In that he, on 01.12.2010 at about 18.45 hrs., at village Chandipur, P.S. Kushmandi, District- Dakshin Dinajpur (West Bengal) fired with his service rifle INSAS Butt No. 584, Body No. 16610357 at No. 86005119 HC (G) Tarsem Lal of 140 Bn BSF, with intent to kill him. 17

10. The trial was conducted before the Learned General Security Force Court and in order to prove the case of the prosecution, the prosecution has produced and examined 22 witnesses. However, no Defence witness adduced from the side of petitioner. Thereafter, the statement under Rule 93(2) of BSF Rules read with Section 313 of the Cr.PC of the petitioner was recorded. CONVICTION AND SENTENCES

11. Thereafter, the arguments were advanced by the parties before the learned GSF Court. After hearing the arguments of the both sides and after marshalling and appreciation of oral and documentary evidence adduced by the prosecution, learned GSF Court came to a final conclusion that the petitioner is the person, who started firing indiscriminately resulted in murder of one civilian boy and injured one BSF personnel on his hand and found him guilty of the alleged offences and convicted him for an offence committed under Section 46 of the Boarder Security Force Act, 1968 that is to say for murder and attempt to murder punishable under Sections 302 and 307 of the Indian Penal Code, 1860 and sentenced him “To Suffer Life imprisonment and to be dismissed from service” on 18

17.04.2012. Under the above circumstances, the present writ petitions have come up before this Bench for adjudication. SUBMISSION ON BEHALF OF THE PETITIONER:

12. Ms. Ashima Mandla with Mr. Surya Prakash Singh, Ms. Ritu Das and Mr. Sangkrito Ray Chowdhuri, learned advocates appearing on behalf of the petitioner vehemently argued that in spite of making a fresh application dated 18.10.2021 in pursuant to the order dated

05.10.2021 passed by this Hon’ble High Court, the Respondent No. 3 unfortunately did not consider or dispose of the application even after expiry of time bound direction of three months. Petitioner has issued a contempt notice upon the Respondent No. 3 through his Learned Advocate. After receiving the said contempt notice, the Respondent No. 3 hurriedly passed an order on 29.04.2022 thereby rejected the prayer for suspension of sentence without affording an opportunity of hearing to the petitioner. The impugned order also bears no reasons and a cryptic one which is liable to be set aside.

13. It is further submitted that the Respondent No. 3 overlooked the grounds set forth and evidences, both oral and documentary as adduced by the prosecution and finally dismissed the application 19 only on the basis of surmises and conjectures avoiding the true facts and material evidences available on the record. No personal hearing was given to the petitioner as such grossly violated the principles of natural justice. It is the basic principle of natural justice that a reasonable opportunity of being heard to be given to the petitioner but the Respondent No. 3 avoided and surreptitiously jumped and passed only to comply the direction of the Hon’ble High Court without going into the merits of the case or applying judicious mind. The learned GSF Court failed to appreciate the oral evidences adduced by the prosecution particularly the eye witnesses i.e. P.Ws. 9 and 18. The learned GSF Court also failed to consider under which situation and circumstances, the incident was occurred and directly convicted the petitioner under Sections 302/307 though there was no intention or motive or pre-meditation on the part of petitioner for such incident. There was no prior enmity with the private individuals or officials of the BSF. The said incident was taken place owing to scuffle and sudden provocative statement uttered by P.W. 14. It can be easily ascertained the actual truth from the evidence of eye witness (P.W. 9), who is the shop owner of provisional shop situated at Village Chandipur, P.S. Kushmandi, where the incident occurred. 20

14. It further submitted allegation altercation/argument took place between petitioner and shop owner was never happened at all. Prosecution miserably failed to prove the allegation that the petitioner was under influence of liquor and picked up an altercation with the shop owner. All these facts have not been considered by the learned GSF Court or Appellate Authority and finally dismissed his application whimsically and capriciously without affording an opportunity of being heard to the petitioner. Therefore, this writ petitions are maintainable because there is no other alternative efficacious remedy for his grievances as prayed for as such it can be allowed after setting aside the order dated 29.04.2022 passed by the Appellate Authority and judgment and order dated

17.04.2012 passed by the Learned GSF Court in exercising power under Article 226 of the Constitution of India. Ld. Advocate placed reliance of a judgment reported in Ram Prasad Saini Vs UOI and Anr.1 in support of her contention.

15. It is further submitted that the person, who sustained bullet injury died due to delay in removing to the hospital and insufficient medical facilities. It is specifically stated by the prosecution witnesses 1 2012 SCC Online Del 5160 21 that no BSF personnel help to remove the deceased for his treatment. He was travelled from one place to another and finally succumbed. If he would have been given proper medical treatment in time, he would have been alive. The allegation of suffering bullet injury by P.W. 14 is also not proved. He suffered simple injury in his hand during scuffle but prosecution has given impression that he suffered bullet injury on his hand as such the Petitioner has not committed an offence under Section 307 IPC. At best, it would be Section 308 Part II of the IPC. The Learned GSF Court erroneously convicted the petitioner under Sections 302/307 IPC though it would be at best Sections 300 Part II/308 of the IPC because sudden quarrel or altercation took place between the P.W. 14 and the petitioner at the place of occurrence and same has been corroborated by the eye witness P.W. 9, shop owner and P.W. 18, who was present at the spot. The altercation and scuffle actually taken place between the petitioner and P.W. 14 at the place of occurrence as per the statement of P.W. 18, who is one of the vital eye witnesses and he was present at the place of occurrence, where the petitioner went to purchase Gutka, Cigarette etc. 22

16. Finally, in alternatively, learned advocate submitted that as the incident occurred in the course of sudden quarrel or altercation and in a fit of passion when the BSF personnel informed the higher officer about the false allegation against the petitioner that he engaged in altercation with shop keeper under influence of liquor and further provoked by saying “Oye Vijay Prakash Kya Marega Kisi Ko”. There was no intention to kill or assault anyone as it transpires from the evidence of eye witnesses P.W. 9 and P.W 18. They did not support the prosecution case. Secondly, other eye witnesses also not supported the case of the prosecution. There was no prior intention or motive or pre-meditation on the part of the petitioner for such incident. There was no prior enmity with the private individuals or officials of the BSF. She prayed that his sentence may be scaled down to culpable homicide not amounting to murder after considering Exception 1 and Exception 4 of Section 300 of the Indian Panel Code. Petitioner has already suffered imprisonment for more than 11 years as such he should be released from the case as he had suffered maximum punishment. To bolster her submission and contention, she places reliance of judgments as under: 23 i) Sukhdev Singh V. Delhi State (Govt. of NCT of Delhi)2 ii) Bhagwan Singh vs. State of Uttarakhand3 iii) Anbazhagan Vs. State4 iv) Tholan V. State of Tamilnadu5 SUBMISSION ON BEHALF OF THE RESPONDENTS:

17. Per contra, Mr. Dayashankar Mishra, with Ms. Sabnam Laskar, learned advocates for the respondents, on the other hand, vociferously argued and raised preliminary issue with regard to maintainability of Writ Petitions on the self-same issues and grounds after withdrawal of earlier writ petition filed before the Hon’ble High Court of Delhi. No liberty was granted by the Hon’ble Delhi High Court for filing a fresh writ petition as such both writ petitions are liable to be dismissed at the threshold. There is no provision to entertain writ petition under Article 226 of the Constitution of India when the case has been finally dismissed by the Appellate Authority in an appeal filed under Section 117 of the BSF Act, 1968. The said Act is itself a complete code.