GULZI BHAI Vs. STATE OF J&K
HIGH COURT OF JAMMU AND KASHMIR
STATE OF JANDK
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(1.) PETITIONERS herein are the accused in Criminal Challan no. 43/2001. They have been charged for offences u/s 302/307/34 RPC by the Ist Addl.
Sessions Judge, Jammu vide order dated 16th November, 2004 and put to
trial. They have sought quashment of the criminal proceedings against
them besides the FIR No. 25/99, Sanction Letter dated 31st March, 2003
and the orders framing the charge against them by invoking inherent
jurisdiction of this court u/s 561 -A Cr. P. C. Before dealing with the
grounds for quashment, it is relevant to summaries the factual background
leading to the filing of the present petition.
FACTUAL BACKGROUND :
(2.) ALL the four petitioners are B.S.F personnel. They were posted in 14 Bn. B.S.F D. Coy. On the night of 17th July, 1999, they were
performing night duty at Mala Bela BSF Bunker Post, when an army patrol
party arrived on the side of the Bunker. There was firing from both the
sides. I do not want to go into the allegations and counter -allegations
in this regard. However, in the firing, all the army personnel sustained
bullet injuries to one. One Capt. Sanjeev Dahiya, Nk Jai Narayan
Tripathi, Sep Data Ram died due to bullet injuries whereas Sep Keshav
Singh survived. These army personnel were from Rajput Regiment. FIR no.
25/99 was registered with the Police Station, Khour on the basis of written complaint dated 21st July, 1999 made by CO.5 Rajput Bn. In the
meanwhile, a Staff Court of Inquiry was ordered by Ftr. HQ BSF, Jammu
vide order dated 17th July, 1999 to investigate into the circumstances
under which three army men of 5 -Rajput Bn were killed and one injured.
Report came to be submitted by the staff Court of Inquiry (SCOI) to the
I.G BSF, Jammu who noted that the incident was due to lack of
co -ordination between the patrolling party and the BSF and no one was
blamed for the killing of and injuries to army personnel. However, it was
decided to initiate disciplinary action against S.I A.K Sarkar and Head
Constable Kundan Singh. In the meanwhile, Ftr. HQ BSF, Jammu informed the
Unit that the disciplinary or administrative action be withheld until
police action is completed.
(3.) THE Army authorities also ordered a departmental enquiry by Headquarter 10 Inf. Division vide their letter dated 17th July,1999 to
investigate into the circumstances regarding the death of three army
personnel. While this inquiry was being conducted, police filed a charge
sheet on completion of investigation in FIR no.25/99 for offence u/s
302/307/34 RPC and 7/25 Arms Act in the court of Ist Class Judicial Magistrate, Akhnoor against the present petitioners who were named as
accused in the challan. While the charge sheet was under consideration,
SHQ BSF Ferozpur was requested by the Bn. Headquarter vide their dated
2nd March, 2002 for claiming the accused for trial by BSF authorities u/s 80 of BSF Act,1968. DIG BSF Ferozpur Sector, made an application to the Judicial Magistrate, Akhnoor for transferring the case to BSF authorities
for trial under the BSF Act. This request of the BSF was accepted and the
Magistrate handed over the accused persons to the BSF authorities for
trial under the provisions of BSF Act.
Before any action could be taken by the BSF authorities, SHQ BSF Ferozpur vide letter dated 2nd September, 2002 directed the BSF
authorities at Jammu to send back the case to the Civil Court as the
matter has been re -considered at FHQ BSF New Delhi under the instructions
issued by MHA on the ground that the case involves BSF and army i.e two
armed forces of Union. The BSF authorities consequently moved to Judicial
Magistrate, Ist Class, Akhnoor vide their application for handing over of
the accused to the Civil court for trial on the basis of the charge sheet
(challan) earlier produced by the P/S Khour. The Magistrate allowed this
application and accepted the challan for trials vide his detailed order
dated 18th November, 2003. Vide subsequent order dated 18th November,
2003 Magistrate committed the accused petitioners to Sessions Court. Learned Sessions Judge, Jammu transferred the challan to Ist Addl.
Sessions Judge, Jammu for trial who has passed the order impugned herein
for trial of the accused persons for offences u/s 302/304/34 RPC read
with section 7/25 Arms Act.;
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