LexSTATE OF J & K versus LAKHWINDER KUMAR & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B c [2013] 2 S.C.R. 1070 STATE OF J & K v. LAKHWINDER KUMAR & ORS. (Criminal Appeal No. 624 of 2013 etc.) . APRIL 25, 2013 [CHANDRAMAULI KR. PRASAD AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] BORDER SECURITY FORCE RULES, 1969: r.41(1) (i) and (ii) read with ss. 47 and 80 of Border Security Force Act - Owing to a quarrel between BSF personnel and some boys, death of a boy by gunfire caused by BSF Constable in Srinagar - Charge sheet submitted by 0 police in the Court of Chief Judicial Magistrate - Application filed by Dy. Inspector General praying for tn"al of the accused in Security Force Court allowed by CJM - Order affirmed by High Court - Held: In view of Notification, accused were on active duty at the time of commission of the offence - E Therefore, the bar under s.47 of the Act shall not stand in their way for trial by a Security Force Court - However, in the instant case, the criminal court and the Security Force Court each will have jurisdiction for trial of the offence - The allegations in the case do not indicate that the accused committed the offenc_e in course of performance of their duty in any of the F situations enumerated in r. 41 (1 )(i) - Though the Commanding Officer, has exercised his power uls. 80 of the Act, but he has nowhere stated that the trial of the accused by Security Force Court is necessary in the interest of discipline of the Force as required under r. 41(1)(ii) - G Commanding Officer has exercised his power ignorant of the restriction placed on him under the Rules -- Hiis decision is, therefore, illegal - Order of CJM as affirmed by High Court set aside - However, liberty given to Director General to make H 1070 STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1071 an appropriate application before CJM - Border Security A Force Act, ss.47, 80 and 141. ADMINISTRATIVE LAW: Delegated legislation - r.41 of Border Security Force Rules, 1969 - Held is not in conflict with provisions of s. 80 of B the Act - Border Security Force Act, 1969 - s. 80. Delegated legislation - Exercise of power - Extent of - Held: When the power is conferred in general and thereafter in respect of enumerated matters, as in the instant case, the c particular/isation in respect of specified subject is construed as merely illustrative and does not limit the scope of general power. An F.l.R. was registered against a Constable and a 0 Commandant of Border Security Force, namely, respondent nos.1 and 2 in Crl. A. No. 624 of 2013, on the allegation that they while returning after Annual Medical examination at Composite Hospital, on the way, got involved in a quarrel with some boys, and on the instigation of respondent no. 2, respondent no.1 fired E twice and one such bullet hit one of the boys, causing his death. The police submitted a charge-sheet against both the respondents for offences punishable u/ss.302, 109 and 201 of Ranbir Penal Code before the Chief Judicial Magistrate. The Dy. Inspector General, Border F Security Force filed an application before the CJM to stay the proceedings and to forward the accused persons for trial before Security Force Court. The application was allowed. The order was unsuccessfully challenged by the father of the deceased and the State Government in G revision petitions before the High Court. In the instant appeals it was contended that the offence committed was a civil offence triable by a criminal H 1072 SUPREME COURT REPORTS [2013] 2 S.C.R. A court as at the time of commission of offence, the accused persons were not engaged in any operation nor were they on active duty so as to give jurisdiction to the force to try them before Security Force Court. B Allowing the appeals, the Court HELD: 1.1. There is no connection, not even the remotest one, between duty of the accused persons, as members of the Force and the crime in question. The situs of the crime was neither under Force control nor the C 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, the notification issued by the Central Government in terms D of s.2(1)(a) of the Border Security Force Act, 1969, states "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 notifi
Excerpt shown. Read the full judgment & AI analysis in Lexace.