Case Note & Summary
The case involved the tragic death of a Kashmiri teenager, Zahid Farooq Sheikh, allegedly shot by Lakhwinder Kumar, a constable of the Border Security Force, under the instigation of R.K. Birdi, a Commandant. The incident occurred on February 5, 2010, during a confrontation between Force personnel and local boys in Srinagar. Following the incident, an FIR was registered, and both accused were arrested. The police submitted a charge-sheet against them for murder and related offences. The Commandant sought to transfer the case to a Security Force Court, claiming jurisdiction under the Border Security Force Act, 1968. The Chief Judicial Magistrate allowed this transfer, leading to appeals by the State of Jammu & Kashmir and the deceased's uncle, Ghulam Mohammad Sheikh, which were dismissed by the High Court. The Supreme Court granted special leave to appeal and examined whether the accused were on active duty at the time of the offence. The court noted that while Section 47 of the Act generally bars trial by a Security Force Court for murder against civilians, this bar does not apply if the offence was committed while on active duty. The court found that the accused were not engaged in active duty as defined by the Act at the time of the incident. However, it acknowledged a Central Government notification declaring their duty as active duty, complicating the jurisdictional question. The court emphasized that the discretion to choose the trial venue must follow statutory guidelines, which the Commanding Officer failed to adhere to. Consequently, the Supreme Court set aside the lower court's orders and allowed the appeals, directing a reconsideration of the trial venue by the Director General of the Force. The court clarified that its observations were for the disposal of the appeals and would not influence the trial's outcome.
Headnote
A) Criminal Law - Jurisdiction of Security Force Court - Definition of Active Duty - The accused were found to be on active duty at the time of the offence, allowing for trial by Security Force Court under Section 47 of the Border Security Force Act, 1968. The court held that the definition of active duty includes duties declared by the Central Government, thus lifting the bar for trial by Security Force Court (Paras 11-12). B) Criminal Law - Discretion under Section 80 - The discretion to choose between trial by Security Force Court and Criminal Court must adhere to statutory guidelines. The Commanding Officer's failure to justify the choice of trial rendered the decision illegal, necessitating a re-evaluation of the trial venue (Paras 26-28).
Issue of Consideration
Whether the accused were on active duty at the time of the offence and if the trial should proceed in a Security Force Court or a Criminal Court.
Final Decision
The Supreme Court allowed the appeals, set aside the orders of the Chief Judicial Magistrate and the High Court, and directed the Director General of the Force to reconsider the trial venue in accordance with law within eight weeks.
Law Points
- jurisdiction of Security Force Court
- active duty definition
- discretion under Section 80
- trial by Security Force Court
- guidelines for trial choice
