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 (BSF), under the instigation of R.K. Birdi, a Commandant of the BSF. The incident occurred on February 5, 2010, during a confrontation between BSF personnel and local boys in Srinagar. Following the incident, an FIR was registered, and both accused were arrested. The BSF 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 from 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 the definition of active duty included duties declared by the Central Government, which applied to the accused at the time of the incident. However, the court also found that the Commanding Officer's discretion to choose the trial court was not exercised in accordance with the guidelines set forth in the Rules under the Act. The court ultimately allowed the appeals, set aside the previous orders, and directed the Chief Judicial Magistrate to proceed in accordance with law, allowing the Director General of the BSF to revisit the trial choice if deemed necessary.
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, which applied in this case. (Paras 11-12). B) Criminal Law - Discretion in Trial Choice - The discretion to choose between a Security Force Court and a Criminal Court lies with the Director General or other specified officers under Section 80 of the Act. The court emphasized that this discretion must adhere to guidelines established in the Rules made under the Act. (Paras 25-26). C) Criminal Law - Guidelines for Trial - The court found that the Commanding Officer's decision to try the accused by a Security Force Court was not justified as it did not adhere to the statutory guidelines. The court set aside the previous orders and allowed for a re-evaluation of the trial choice. (Paras 30-32).
Issue of Consideration
Whether the accused were on active duty at the time of the offence and whether the trial should be conducted by 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 Chief Judicial Magistrate to proceed in accordance with law. The Director General of the BSF was given liberty to revisit the trial issue within eight weeks.
Law Points
- jurisdiction of Security Force Court
- active duty definition
- discretion under Section 80
- trial choice between courts
- guidelines for trial jurisdiction
