- (1.) This petition by the B.S.F is directed against the order dated 10.10.2012 passed by the learned Judicial Magistrate, 1st Class, Belonia in case No. GR 567 of 2010 whereby the application filed by the DIG, SHQ, BSF, Teliamura, Tripura for trying the accused persons under the Border Security Force Act, 1968 (for short, BSF Act) was rejected and the DIG, SHQ was directed to satisfy the Court that the accused person Sri Sheelender Kumar was on active duty and was also directed to produce all the three accused persons in Court.
(2.) Section 47 of the BSF Act reads as follows: "47. Civil offences not triable by a Security Force Court.-- A person subject to this Act who commits an offence of murder or of culpable homicide not amounting to murder against, or of rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Security Force Court, unless he commits any of the said offences, (a) while on active duty; or (b) at any place outside India; or (c) at any place specified by the Central Government by notification in this behalf." Therefore, any offence of murder or rape in relation to a person who is not governed by the BSF Act is normally to be tried by a Criminal Court under the Code of Criminal Procedure. There are three exceptions to the same and those are (i) if the offence takes place when the BSF personal is on active duty; (ii) if the offence takes place outside India and (iii) if the offence takes place at any place specified by the Central Government by notification in this behalf.
(3.) The Magistrate was fully justified in directing the DIG, BSF, Teliamura to satisfy the Magistrate that the accused was on active duty. Any Magistrate before abdicating his judicial functions and handing over the accused to the BSF must be sure that the trial by the civil Court is barred in view of the provisions of Section 47 of the BSF Act. To that extent the order is just and reasonable calling for no interference. However, in the last part of the order it has been stated that the application filed by the DIG, SHQ, BSF, Teliamura is rejected. This part of the order is inconsistent with the previous part of the order wherein the Magistrate has directed the DIG, BSF to satisfy the Magistrate that the case is covered under the exception of Section 47 of the BSF Act. Therefore, the application filed by the BSF would not have been dismissed but kept pending.;