GULZI BHAI Vs. STATE OF J&K
LAWS(J&K)-2006-3-28
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 03,2006

Gulzi Bhai Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (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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