- (1.) The judgment of the Court was as follows:- THE challenge in this application under Section 482 of the Code of Criminal Procedure is to the orders dated 27.2.2003, 26.9.2003 and 30.12.2003 passed by the learned Sub-Divisional Judicial Magistrate, Basirhat, North 24-Parganas in G.R. Case No. 23/2003 arising out of Basirhat P.S. Case. No. 9 dated 13.1.2003 under Sections 376(B)/280/ 302/201 of the Indian Penal Code.
(2.) The petitioner herein is the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata. On 9.1.2003 at 17.00 hours a Patrol Party of B.S.F. apprehended seven Bangladeshi nationals of whom three were males, two were females and two were children at Soladana. THEy were kept in a room at BOP. On the same date, at about 21.10 hours, Coy Commander arrived with 53 seized cattle and 10 smugglers. THE said smugglers were kept in the same room with the Bangladeshi nationals. On the next date, the Bangladeshi nationals and the smugglers were produced before the Customs Authorities at Basirhat and their statements were recorded. On 10.1.2003 the Bangladeshi nationals were pushed back as per direction of Custom Superintendent in a boat run by one Karim Dhali, a civilian. On 13.1.2003 at around 10.10 hours, one Jayanti Bala Das, a Bangladeshi national, who had been arrested and taken into custody in connection with G.R. Case No. 23/ 2003 under Section 14 of the Foreigners Act, lodged a complaint with the police authorities alleging therein that on 9.1.2003 she along with her husband, Basudeb Das and daughter Ashima, aged about three years, were coming towards Basirhat by one Auto-rickshaw from Bangladesh border. In the way 3/4 B.S.F. Officials searched that Auto- rickshaw. On questioning, Jayanti Bala and her husband confessed that they were from Bangladesh. THEre were some other Bangladeshi nationals in that Auto-rickshaw. All of them were taken to Soladana Camp of B.S.F. At night one B.S.F. Officer called on her in a room and committed rape on her. All the persons apprehended as Bangladeshi nationals were subjected to torture in the B.S.F. Camp. On the next date, they were taken to Basirhat Customs Office and the Customs Officers directed to push back all of them to Bangladesh. THEy were boarded on a small boat for that purpose. Jayanti Bala, her husband and daughter fell down from the boat in the water. THEy raised alarm and local people rescued Jayanti Bala and another children. On 13.1.2003 they were handed over to Basirhat Police. THE husband of Jayanti Bala and their daughter could not be traced out. On the basis of the said statement of Jayanti Bala, Basirhat P.S. Case No. 9 of 2003 dated 13.1.2003 was started under Sections 376(B)/280 of the Indian Penal Code. In course of investigation, Jayanti Bala was sent in safe custody and her statement was recorded. On 22.1.2003, a dead body presumed to be that of Basudeb Das, husband of Jayanti Das, was found floating on river Ichhamati. Sections 302/201 of the Indian Penal Code was added to Section 376(B)/280 of the Indian Penal Code. One Punit Kumar, Assistant Commandant and four other B.S.F. personnel were made accused in the case. THE boatman Karim Dhali was also arrested and confessional statement of Karim Dhali under Section 164 of the Code of Criminal Procedure was accorded by the learned S.D.J.M., Basirhat. On 27.2.2003 warrant of arrest against Punit Kumar, Assistant Commandant and four other B.S.F. personnel was issued on the prayer of Investigating Agency. On 5.3.2003, the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata, filed an application before the learned S.D.J.M., Basirhat for transfer of the case under Section 80 of the B.S.F.. Rules. On 6.3.2003, that prayer of the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata, the petitioner herein, was rejected on the ground that the prayer was premature and not only B.S.F. personnel but other civilians were made accused in the case. On 13.3.2003 an application was filed on behalf of the petitioner to recall the order of warrant of arrest against the B.S.F. personnel. By the order dated 26.9.2003 said prayer was rejected. Another application was taken out on behalf of the petitioner for recalling the order of warrant of arrest. By order dated 30.12.2003, said prayer was rejected. In the meantime, Punit Kumar Sinha preferred a Public Interest Litigation, being W.P. No. 14404 (W) of 2003, praying for some reliefs. THE Union of India and other officers of B.S.F. were made respondents in the said writ application. Upon contested hearing of the same writ application, the said writ application was disposed of on 10.3.2004. The petitioner, i.e., the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata, has challenged the aforementioned orders passed by the learned Magistrate declining to recall the order of warrant of arrest issued against the B.S.F. personnel who were made accused in the case. It is pertinent to mention here that the order dated 6.3.2003 rejecting the prayer dated 5.3.2003 has not been challenged in this revisional application.
(3.) Mr. Razack, learned Additional Solicitor General, appearing for the petitioner, submits that it was a mistake on the part of the petitioner not to challenge the order dated 6.3.2003 whereby the prayer of the Deputy Inspector General, Border Security Force, Sector Headquarters, Kolkata, for transfer of Criminal Court case to the B.S.F. Court for trial was rejected. He, however, contends that the subsequent orders whereby warrant of arrest was issued and recalling of warrant of arrest was rejected, have been challenged in this revisional application. Those orders were passed consequent upon the order dated 6.3.2003. Therefore, when the matter has brought to the notice of this Revisional Court and where there is patent error in Law on the face of the record, this Court should set right the patent wrong and pass necessary order. Mr. Razack contends that Section 80 of the Border Security Force Act, 1968 leaves no room of doubt that when an offence was committed by an Army Personnel, a member of Border Security Force and the Competent Authority of B.S.F. exercised its discretion under Section 80 of the Act that the accused may be tried before the Border Security Force Court, the subsequent cognizance by the Magistrate and committal of case by him to the Sessions Court was without jurisdiction.;