“Where jurisdiction overlaps, the Border Security Force can opt for Security Force Court trial before commencement of trial in the criminal court, and denial without reasons reflects non-application of mind.”
Court’s Decision
The Tripura High Court allowed the revision petition filed by the Deputy Inspector General, BSF, setting aside the Chief Judicial Magistrate’s order rejecting the BSF’s application under Section 80 of the Border Security Force Act, 1968, to conduct the trial before a Security Force Court. The Court granted liberty to the BSF to file a fresh application fulfilling statutory requirements within two weeks, which the trial court shall consider in accordance with law.
Facts
The case arose from a road accident on 30 July 2021 involving a BSF vehicle (carrying 11 personnel from the International Border to the Battalion Headquarters) and a motorcycle, resulting in injuries to the rider and pillion riders, with one death. Two FIRs were registered, including one by the Deputy Commandant of BSF, alleging rash driving by the motorcyclist, and another by the injured motorcyclist, alleging rash driving by the BSF driver.
The police filed a charge sheet under Sections 279, 338, 304A IPC, and Sections 184, 196 MV Act against the BSF constable driver (respondent) and the motorcyclist. The trial lingered until the DIG, BSF filed an application on 25 February 2025 before the CJM, seeking a stay and transfer under Section 80 BSF Act, contending the BSF’s preference to try the constable under the BSF Act since he was on active duty.
The CJM rejected the application on 27 February 2025, framing the substance of accusation and proceeding to trial, leading to the present revision.
Issues
- Whether the BSF could exercise the option under Section 80 BSF Act for trial before the Security Force Court despite delay.
- Whether the trial court’s rejection of the BSF’s application without assigning reasons was valid.
- Whether the BSF’s application complied with procedural requirements under Rule 41 read with Section 80 of the BSF Act.
Petitioner’s Arguments
- The DIG BSF, represented by the Deputy SGI, argued that the option under Section 80 could be exercised before the commencement of the trial, and the application was made before the trial began, although after the charge sheet.
- Cited State of J&K v. Lakhwinder Kumar (2013) 6 SCC 333, holding that the Force can exercise such an option before trial commencement.
- The trial court’s rejection was a non-speaking order showing non-application of mind.
- Submitted that the constable was on active duty under Section 2(1)(a) BSF Act during the incident, and the BSF desired to proceed under its disciplinary framework.
- Sought liberty to file a fresh application fulfilling procedural defects under Rule 41 of the Adjustment of Jurisdiction Rules, 1969, since no prosecution witnesses had been examined till date.
Respondent’s Arguments
- The State opposed the revision, arguing that:
- The application was filed belatedly as the FIR was from July 2021, and the charge sheet was filed in September 2022.
- However, acknowledged that trial had not commenced on 25 February 2025, when the application was filed.
- The BSF’s application lacked details required under Section 80 and Rule 41, including confirmation that the accused was on active duty and that the trial before the Security Force Court was necessary to maintain discipline.
Analysis of the Law
- Section 80 BSF Act allows the Force to opt for trial before a Security Force Court when both it and the criminal court have jurisdiction, provided the option is exercised before commencement of the trial.
- Rule 41 under the Adjustment of Jurisdiction Rules requires:
- Confirmation of the accused being on active duty,
- The Force’s view that trial before the Security Force Court is necessary for maintaining discipline,
- Communication to the criminal court with these specifics.
- State of J&K v. Lakhwinder Kumar held that while the option should be exercised promptly, it is valid if done before trial starts.
Precedent Analysis
- State of J&K v. Lakhwinder Kumar (2013) 6 SCC 333: The Force can exercise the option for Security Force Court trial before the criminal trial commences, even after the charge sheet, if done before the trial begins.
- Rule 41 of the 1969 Rules: Details procedural requirements for invoking Section 80.
- The case applied Lakhwinder Kumar to assess compliance, clarifying the permissible stage for opting for Security Force Court trial.
Court’s Reasoning
- The application, although delayed, was made before trial commencement, satisfying the timing requirement under Section 80 and the Lakhwinder Kumar ruling.
- The trial court rejected the application without providing reasons, indicating non-application of mind.
- However, the BSF’s application was defective as it did not confirm whether the accused was on active duty or that a Security Force Court trial was required to maintain discipline.
- Since no witnesses had been examined, the High Court held that the matter should be reconsidered by the trial court if the BSF files a fresh application fulfilling procedural requirements.
Conclusion
The Tripura High Court set aside the trial court’s order rejecting the BSF’s application under Section 80 BSF Act and granted liberty to the BSF to file a fresh application within two weeks fulfilling Rule 41 requirements.
The trial court was directed to consider the fresh application in accordance with law, while the revision petition and pending applications were disposed of.
Implications
- Reinforces that the BSF can opt for Security Force Court trial before the commencement of the criminal trial.
- Highlights the necessity of providing reasons in judicial orders rejecting statutory requests.
- Clarifies procedural compliance under Rule 41 read with Section 80 BSF Act when seeking transfer of trial.
Brief Note on Cases Referred
- State of J&K v. Lakhwinder Kumar (2013) 6 SCC 333: Held that the Force can exercise the option for Security Force Court trial before the trial begins in the criminal court.
- Rule 41, Adjustment of Jurisdiction Rules, 1969: Governs the procedure and conditions under which the BSF can seek to transfer a case to its court.
These were applied to support setting aside the rejection and granting liberty for a fresh, compliant application.
FAQs
- Can the BSF request a Security Force Court trial after a charge sheet is filed?
Yes, provided the request is made before the trial in the criminal court commences. - What procedural steps must the BSF follow to transfer a trial to a Security Force Court?
It must confirm the accused was on active duty and justify that a Security Force Court trial is necessary to maintain discipline, fulfilling Rule 41 requirements. - Can a trial court reject such a request without giving reasons?
No, a judicial order must record reasons, and rejection without reasons is liable to be set aside.