Supreme Court of India
STATE OF J & KversusLAKHWINDER KUMAR & ORS.
- Citation
- 2013 INSC 279
- Decided
- 25 April 2013
- Disposal
- Appeal(s) allowed
Holding
The accused were on active duty, lifting the Section 47 bar, but the Commanding Officer failed to satisfy the statutory guidelines for exercising discretion, rendering the transfer to the Security Force Court illegal.
Summary
The case concerned a BSF constable and a commandant who, after a quarrel with local youths, caused the death of a teenager. The State of Jammu & Kashmir sought to have the accused tried in a criminal court, while the BSF exercised its power under Section 80 of the Border Security Force Act to transfer the case to a Security Force Court. The Supreme Court examined whether the accused were on "active duty" at the time of the offence, interpreting a Central Government notification that declared all BSF personnel serving in Jammu & Kashmir as on active duty between July 2007 and June 2010. It held that the notification extended the definition of active duty, thereby removing the bar under Section 47 that would otherwise prevent trial by a Security Force Court. However, the Court found that the Commanding Officer had not complied with the statutory guidelines in Rule 41(1)(ii) when exercising discretion, rendering the transfer order illegal. Consequently, the orders of the Chief Judicial Magistrate and the High Court were set aside, and the case remains within the jurisdiction of the criminal court, with liberty granted to the Director General to revisit the option of a Security Force Court trial. The appeals were allowed.
Issues considered
- Whether the accused BSF personnel were on "active duty" at the time of the offence, invoking the Central Government notification.
- Whether the bar under Section 47 of the Border Security Force Act applies to the offence.
- Whether the Commanding Officer validly exercised discretion under Section 80 and Rule 41(1)(ii) to transfer the case to a Security Force Court.
- Whether both the criminal court and the Security Force Court have concurrent jurisdiction and the choice lies under Section 80.
- Whether Rule 41 of the BSF Rules, 1969, is consistent with the provisions of the BSF Act and does not exceed delegated legislative power.
Legislation cited
- Border Security Force Act, 1969s. 141, s. 2(1)(a), s. 47, s. 80
- Criminal Procedure Code, 1989 (J&K)s. 549
- Ranbir Penal Codes. 109, s. 201, s. 302
Subjects
active dutyBorder Security Force ActSection 47Section 80Security Force Courtcriminal jurisdictiondelegated legislationRule 41discretionjurisdictionnotification
Judgment
[2013] 2 S.C.R. 1070
A STATE OF J & K
v.
LAKHWINDER KUMAR & ORS.
(Criminal Appeal No. 624 of 2013 etc.)
. APRIL 25, 2013
B
[CHANDRAMAULI KR. PRASAD AND FAKKIR
MOHAMED IBRAHIM KALIFULLA, JJ.]
BORDER SECURITY FORCE RULES, 1969:
c
r.41(1) (i) and (ii) read with ss. 47 and 80 of Border
Security Force Act - Owing to a quarrel between BSF
personnel and some boys, death of a boy by gunfire caused
by BSF Constable in Srinagar - Charge sheet submitted by
0 police in the Court of Chief Judicial Magistrate - Application
filed by Dy. Inspector General praying for tn"al of the accused
in Security Force Court allowed by CJM - Order affirmed by
High Court - Held: In view of Notification, accused were on
active duty at the time of commission of the offence -
E Therefore, the bar under s.47 of the Act shall not stand in their
way for trial by a Security Force Court - However, in the instant
case, the criminal court and the Security Force Court each
will have jurisdiction for trial of the offence - The allegations
in the case do not indicate that the accused committed the
offenc_e in course of performance of their duty in any of the
F situations enumerated in r. 41 (1 )(i) - Though the
Commanding Officer, has exercised his power uls. 80 of
the Act, but he has nowhere stated that the trial of the accused
by Security Force Court is necessary in the interest of
discipline of the Force as required under r. 41(1)(ii) -
G Commanding Officer has exercised his power ignorant of the
restriction placed on him under the Rules -- Hiis decision is,
therefore, illegal - Order of CJM as affirmed by High Court
set aside - However, liberty given to Director General to make
H 1070
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1071
an appropriate application before CJM - Border Security A
Force Act, ss.47, 80 and 141.
ADMINISTRATIVE LAW:
Delegated legislation - r.41 of Border Security Force
Rules, 1969 - Held is not in conflict with provisions of s. 80 of B
the Act - Border Security Force Act, 1969 - s. 80.
Delegated legislation - Exercise of power - Extent of -
Held: When the power is conferred in general and thereafter
in respect of enumerated matters, as in the instant case, the c
particular/isation in respect of specified subject is construed
as merely illustrative and does not limit the scope of general
power.
An F.l.R. was registered against a Constable and a
Commandant of Border Security Force, namely, 0
respondent nos.1 and 2 in Crl. A. No. 624 of 2013, on the
allegation that they while returning after Annual Medical
examination at Composite Hospital, on the way, got
involved in a quarrel with some boys, and on the
instigation of respondent no. 2, respondent no.1 fired E
twice and one such bullet hit one of the boys, causing
his death. The police submitted a charge-sheet against
both the respondents for offences punishable u/ss.302,
109 and 201 of Ranbir Penal Code before the Chief
Judicial Magistrate. The Dy. Inspector General, Border F
Security Force filed an application before the CJM to stay
the proceedings and to forward the accused persons for
trial before Security Force Court. The application was
allowed. The order was unsuccessfully challenged by the
father of the deceased and the State Government in G
revision petitions before the High Court.
In the instant appeals it was contended that the
offence committed was a civil offence triable by a criminal
H
1072 SUPREME COURT REPORTS [2013] 2 S.C.R.
A court as at the time of commission of offence, the
accused persons were not engaged in any operation nor
were they on active duty so as to give jurisdiction to the
force to try them before Security Force Court.
Allowing the appeals, the Court
B
HELD: 1.1. There is no connection, not even the
remotest one, between duty of the accused persons, as
members of the Force and the crime in question. The
situs of the crime was neither under Force control nor the
C victim of crime was in any way connected with the Force.
But for the notification, these could have been sufficient
to answer that accused persons were not on active duty
at the time of commission of the crime. However, the
notification issued by the Central Government in terms
D of s.2(1)(a) of the Border Security Force Act, 1969, states
"duty of every person" of the Force "serving in the State"
of Jammu and Kashmir "with effect from the 1st of July,
2007 to 30th of June, 2010 as active duty". The
notification does not make any reference to the nature of
E duty, but lays emphasis at the place where the members
of the Force are serving, to come within the definition of
'active duty'. Therefore, the accused were on active duty
at the time of commission of the offence and, as such,
the bar u/s 47 of the Act shall not stand in the way for
F their trial by a Security Force Court. [para 9, 10 and 12]
[1080-G-H; 1081-E-G; 1082-E]
1.2 The bar of trial by a Security Force Court though
is lifted, but it does not mean that the accused who
committed the offence of the nature indicated in s. 47 of
G the Act shall necessarily have to be tried by a Security
Force Court. In a given case, there may not be a bar of
trial by a Security Force Court, but still an accused can
be tried by a criminal court. In such a situation, the choice
of trial is between the criminal court and the Security
H
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1073
Force Court. This situation is visualized u/s. 80 of the Act. A
(para 12] (1082-E-G]
1.3 In the instant case, the crimjnal court and the
Security Force Court each will have jurisdiction for trial
of the offence which the accused persons are alleged to 8
have committed. In such a contingency s. 80 of the Act
has conferred discretion on the Director General or the
Inspector General or the Deputy Inspector General of the
Force within whose Command the accused person is
serving, to decide before which court the proceeding
shall be instituted. For exercise of discretion u/s. 80 of C
the Act, rules have been framed. [para 13] [1083-B-D and
E-F]
2.1. Rule 41 (1 )(i) of the Border Security Force Rules,
1969, states that where the offence is committed in the D
course of the performance of duty as a member of the
Force or, in relation to property belonging to the
Government or the Force ot a person subject to the Act
or the offence was committed against a person subject
to the Act, the officer competent to exercise the power u/ E
s. 80 of the Act may direct that the members of the Force
who have committed the offence, be tried by a Security
Force Court. The allegations in the instant case do not
indicate that the accused committed the offence in any
of the situations enumerated in r. 41(i). Therefore, the F
jurisdictional fact necessary for trial of the accused
persons by a Security Force Court does not exist. [para
14] [1084-G-H; 1085-A-B] ·
2.2 Rule 41 (1 )(ii) further authorizes the officer
competent to exercise his power u/s 80 of the Act to G
decide as to whether or not it would be necessary in the
interest of discipline to claim for trial by a Security Force
Court. In the instant case, the Commanding Officer has
exercised his power u/s. 80 of the Act and excepting to
H
1074 SUPREME COURT REPORTS [2013) 2 S.C.R.
A say that the said power has been exercised in his
discretion, he has nowhere stated that the trial of the
accused by Security Force Court is necessary in the
interest of discipline of the Force. Once a statutory
guideline has been issued for giving effect to the
B provisions of the Act, the exercise of discretion without
adherence to those guidelines shall render the decision
vulnerable. The Commanding Officer has exercised his
power ignorant of the restriction placed on him under the
Rules, his decision is, therefore, illegal and the order
c passed by the Chief Judicial Magistrate as affirmed by the
High Court based on that cannot be allowed to stand.
[para 14 and 22] [1085-C; 1092-B-D]
3.1 One of the most common mode adopted by the
legislature conferring rule making power is first to
D provide in general terms i.e., for carrying into effect the
provisions of the Act, and then to say that in particular,
and without prejudice to the generality of the foregoing
power, rules may provide for number of enumerated
matters. Section 141 of the Act, which confers on the
E Central Government the power .to make rules is of such
a nature. [para 16] [1085-G-H; 1086-A]
3.2 When the power is conferred in general and
thereafter in respect of enumerated matters, as in the
F instant case, the particularlisation in respect of specified
subject is construed as merely illustrative and does not
limit the scope of general power. [para 17] [1088-C]
Rohtak & Hissar Districts Electric Supply Co. Ltd. v. State
of U.P., 1966 SCR 863 =AIR 1966 SC 1471 and Afzal Ullah
G v. State of Uttar Pradesh, 1964 SCR 991 = AIR 1964 SC
264 - relied on.
Emperor v. Sibnath Banerji, AIR 1945 PC 156 - referred
to.
H
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1075
3.3 Wide discretion has been given to the specified A
officer u/s 80 of the Act to make a choice between a
criminal court and a Security Force Court, but r.41 made
for the purposes of carrying into effect the provision of
the Act has laid down guidelines for exercise of that
discretion. Rule 41 has not gone beyond what the Act 8
has contemplated nor is it any way in conflict thereof.
Therefore, this has to be treated as if the same is
contained in the Act. The Commanding Officer has to
bear in mind the guidelines laid for the exercise of
discretion. [para 20] [1090-F-H]
c
4. In the instant ease, the Force has exercised its
option for trial of the accused immediately on submission
of the charge-sheet and before the commencement of the
trial. In the facts and circumstances of the case, liberty
is given to the Director General of the Force, if so advised, D
to re-visit the entire issue in accordance with law bearing
in mind the observation made in the judgment and if he
comes to the conclusion that the trial deserves to be
conducted by the Security Force Court, nothing will
prevent him to make an appropriate application afresh E
before the Chief Judicial Magistrate. [para 24 and 25]
[1094-A-C]
Joginder Singh v. State of H.P., 1971 (2) SCR 851 =
(1971) 3 sec 86 - distinguished.
F
Case Law Reference:
1966 SCR 863 relied on para 17
AIR 1945 PC 156 referred to para 17
G
1964 SCR 991 relied on para 19
1971 (2) SCR 851 distinguished para 23
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 624 of 2013. H
1076 SUPREME COURT REPORTS [2013) 2 S.C.R.
A From the Judgment and order dated 21/10/2011 in CRLR
No.30/2010, of the High Court of Jammu & Kashmir at Srinagar.
WITH
Criminal Appeal No. 625 of 2013.
B Gaurav Pachnanda, Sunil Fernandes, Renu Gupta, Rahul
Sharma, Vernika Tomar, Kamini Jaiswal, Varinda Grover,
Abhimanue Shrestha for the Appellant.
R.F. Nariman, SG, Siddartha Dave, Ritin Rai, B. Krishna
c Prasad, Sunil Fernandez for the Respondents.
The Judgment of the Court was delivered by
CHANDRAMAULI KR. PRASAD, J. 1. The allegation in
the case is very distres1:1ing. A Kashmiri teenager lost his life
D by the bullet of Lakhwinder Kumar, a constable of the Border
Security Force (hereinafter referred to as "the Force") at the
Boulevard Road, Srinagar. He allegedly fired at the instigation
of R.K. Birdi, Commandant of the 68th Battalion of the Force.
The cause of firing, as alleged by the prosecution, if true, is
E appalling. R.K. Birdi on 5th of February, 2010 had gone for
Annual Medical Examination at Composite Hospital, Humhama.
While on way back at 4.40 P.M. to the Force Headquarters at
Nishat, Srinagar, accompanied by other Force personnel, they
got stuck in a traffic.jar;n. This led to a verbal duel with some
F boys present at Boulevard Road, Brain, Srinagar. Th~ ve,rbal
duel took an ugly tum and the Force personnel started chasing
the boys. It is alleged that at the instigation of R.K. Birdi,
constable Lakhwinder Kumar fired twice and one of the rounds
hit Zahid Farooq Sheikh. Zahid died of the fire arm injury
G instantaneously. The aforesaid incident led to registration of FIR
No. 4 of 2010 at Police Station, Nishat. It is relevant here to
state that the Commandant of the Force by his letter dated
10.02.2010 handed over the investigation to the police. The
case was investigated without any murmur by the local police
and, during the course of investigation, both R.K.Birdi and
H
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1077
[CHANDRAMAULI KR. PRASAD, J.]
Lakhwinder Kumar were arrested. On completion of A
investigation, the police submitted the charge-sheet on 05th of
April, 2010 against both the accused for commission of offence
under Section 302, 109 and 201 of the Ranbir Penal Code
before the Chief Judicial Magistrate, Srinagar, whereupon an
application was filed on behalf of the Force seeking time to B
exercise option for trial of the accused by Security Force Court.
Accordingly, an application was filed by the Deputy Inspector
General, Station Headquarters, Border Security Force,
Srinagar before the Chief Judicial Magistrate, Srinagar on 6th
of April, 201 O inter alia stating that the criminal case is pending c
against R.K. Birdi, Commandant and Lakhwinder Kumar,
Constable and they are serving under his Command and both
of them are in judicial custody. He went on to say that in
exercise of his discretion under Section 80 of the Border
Security Force Act, 1968 (hereinafter referred to as "the Act") D
he has decided to institute proceeding against them before the
Security Force Court. In the aforesaid premise it was
requested to stay the proceeding and to forward the accused
persons along with all connected documents and exhibits for
trial before the Security Force Court. This application was filed E
in the light of the provisions of Section 549 of the Code of
Criminal Procedure, Svt. 1989, as in force in the State of
Jammu & Kashmir. It was further stated that the outcome of
the trial of the accused shall be intimated to the court as
required under Rule 7 of the Jammu & Kashmir Criminal Courts
and Court Martial (Adjustment of Jurisdiction) Rules, 1983. The F
prayer of the Force was opposed by the State of Jammu &
Kashmir and the deceased's uncle Ghulam Mohammad
Shiekh. The Chief Judicial Magistrate by his order dated 25th
of November, 2010 allowed the application filed by the
Commandant and handed over the accused together with the G
charge-sheet and other materials collected by the investigating
agency for trying the accused by the Security Force Court.
While doing so, the learned Chief Judicial Magistrate observed
as follows:
H
1078 SUPREME COURT REPORTS [2013] 2 S.C.R.
A "In the light of the above discussion it has been shown that
accused have committed alleged offence while on active
duty and the case squarely falls within 1st exception to the
general provisions of Section 47 of the BSF Act, for which
option is available to the applicant either to try them at BSF
B Court or let the Criminal Court of Ordinary jurisdiction to
go ahead with their trial. In the instant case applicant has
chosen to try them at BSF Court. Therefore, this court has
no option but to hand-over the accused together with the
charge-sheet and other material collected by Investigating
c agency to the applicant for trying them at the BSF Court,
Application is therefore accepted and accused are
ordered to be handed over under custody so the applicant
together with charge-sheet and the supporting material as
well as all the seized articles. The Officer concerned shall
try the accused expeditiously and convey the final out-come
D
of the case to this court as soon as it is completed"
2. Aggrieved by the aforesaid order Ghulam Mohammad
Sheikh and the State of Jammu & Kashmir filed separate
revision applications before the High Court. Both the
E applications were heard together by the High Court and have
been dismissed by the impugned order dated 21st of October,
2011. It is against this order the State of Jammu & Kashmir
and Ghulam Mohammad Sheikh have preferred separate
special leave petitions under Article 136 of the Constitution of
F India.
3. Leave granted.
4. We have heard Mr. Gaurav Pachnanda, Senior
Advocate on behalf of the appellant, the State of Jammu &
G Kashmir and Ms. Kamini Jaiswal, Advocate for the appellant,
Ghulam Mohammad Sheikh. We have also heard Mr. R.F.
Nariman, learned Solicit6r-General of India. Despite service
of notice, Respondent Nos. 1 and 2 i.e., Lakhwinder Kumar &
R.K. Birdi respectively have not chosen to appear.
H
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1079
[CHANDRAMAULI KR. PRASAD, J.]
5. It may be mentioned here that Section 47 of the Act A
bars trial of a person subject to the Act by a Security Force
Court who has committed an offence of murder or of culpable
homicide not amounting to murder or rape in relation to a
person not subject to the Act. However, this bar will not operate
if the person subject to the Act has committed the offence while B
on active duty. In other words, if a member of the Force
commits offence of the nature specified above and the victim
of crime is a civilian member, he cannot be tried by a Security
Force Court but this bar will not operate if the offence has been
committed while on active duty. The expression 'active duty' c
has been defined under Section 2(1)(a) of the Act, it reads as
follows:
"2. Definitions.-(1) In this Act, unless the context
otherwise requires,-
D
(a) "active duty", in relation to a person subject to this
Act, means any duty as a member of the Force
during the period in which such person is attached
to, or forms part of, a unit of the Force-
E
(i) which is engaged in operations against an
enemy, or
(ii) which is operating at a picket or engaged on
patrol or other guard duty along the borders
of India, F
and includes duty by such person during any period
declared by the Central Government by notification in the
Official Gazette as a period of active duty with reference
to any area in which any person or class of persons subject G
to this Act may be serving;"
6. Aforesaid provision makes the duty of the nature
specified therein to be active duty and includes duty declared
by the Central Government by notification in the official Gazette.
From a plain reading of the aforesaid, it is evident that any duty H:
1080 SUPREME COURT REPORTS [2013) 2 S.C.R.
A as a member of the Force and enumerated in clauses (i) and
(ii), i.e., engaged in operations against an enemy or operating
at a picket or engaged on patrol or other guard duty along the
borders of India shall come within the definition of active duty.
It shall also include such duty by the member of the Force as
B active duty declared by the Central Government in the Official
Gazette.
7. The Central Government by Notification S0.1473(E)
dated 8th of August. 2007 in exercise of the powers conferred
C under Section 2(1)(a) of the Act, had made a declaration that
the duty of every personnel serving in the State as mentioned
in the said Notification for the period 01st of July 2007 to 30th
of June, 2010, shall be 'active duty'. The State of Jammu &
Kashmir is at Serial Number 16 of the said Notification.
D 8. It is common ground that offence committed is a civil
offence which is triable by a Criminal Court and at the time of
commission of the offence, the accused persons were not
engaged in any operation against any enemy or operating at
a picket or engaged on patrolling or other guard duty along the
E borders of India. According to the appellants, accused persons
were not engaged in the duty of the nature specified above
pursuant to any lawful command, therefore, they cannot be said
to be on active duty so as to give jurisdiction to the Force to
try them before Security Force Court. The learned Solicitor
F General does not join issue and accepts that accused persons
were not performing duty of the nature mentioned in clauses
(i) and (ii) of Section 2(1)(a) of the Act, but, according to him,
in view of declaration of the Central Government, their act shall
come within the inclusive definition of active duty.
G 9. There is no connection, not even the remotest one,
between their duty as members of the Force and the crime in
question. The situs of the crime was neither under Force
control nor the victim of crime was in any way connected with
the Force. But, for the notification, these could have been
H sufficient to answer that accused persons were not on active
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1081
[CHANDRAMAULI KR. PRASAD, J.]
duty at the time of commission of the crime. However, answer A
to this question would depend upon the effect of notification
issued in exercise of the power under Section 2(1)(a) of the
Act. From a plain reading of this section it is evident that 'active
duty' would include duty of such person during any period
declared by the Central Government by notification in the Official B
Gazette as a period of active duty. Section 2(1)(a) finds place
in the definition section of the Act.
10. It is well settled that legislature has authority to define
a word even artificially and while doing so, it may either be C
restrictive of its ordinary meaning or it may be extensive of the
same. When the legislature uses the expression "means" in
the definition clause, the definition is prima facie restrictive and
exhaustive. However, use of the expression "includes" in the
definition clause makes it extensive. Many a times, as in the
present case, the legislature has used the term "means" and D
"includes" both and, hence, definition of the expression "active
duty'' is presumed to be exhaustive. In our opinion, the use of
the expression "includes" enlarges the meaning of the word
"active duty" and, therefore, it shall not only mean the duty
specified in the section but those duty also as declared by the E
Central Government in the Official Gazette. The notification so
issued by the Central Government states that "duty of every
person" of the Force "serving in the State" of Jammu and
Kashmir "with effect from the 1st of July, 2007 to 30th of June,
2010 as active duty". The notification does not make any F
reference to the nature of duty, but lays emphasis at the place
where the members of the Force are serving, to come within
the definition of 'active duty'. In view of the aforesaid, there is
no escape from the conclusion that the accused persons were
on active duty at the time of commission of the offence. G
11. The natural corollary of what we have found above is
that the bar of trial by the Security Force Court provided in
Section 47 of the Act would not operate. Section 47 of the Act
which is relevant for the purpose reads as follows: ·
H
1082 SUPREME COURT REPORTS [2013) 2 S.C.R.
A "47. Civil offences not triable by a Security Force
Court.- A person subject to this Act who commits an
offence of murder or of culpable homicide not amounting
to murder against, or of rape in relation to, a person not
subject to this Act shall not be deemed to be guilty of an
B offence against this Act and shall not be tried by a Security
Force Court, unless he commits any of the said offences,-
(a) while on active duty; or
(b) at any place outside India; or
c
(c) at any place specified by the Central Government by
notification in this behalf."
12. The aforesaid provision makes it clear that a member
of the Force accused of an offence of murder or culpable
D homicide not amounting to murder or rape shall not be tried by
a Security Force Court, unless the offence has been committed
while on active duty. As we have found that the accused
persons have committed the offence while on active duty within
the extended meaning, the bar under Section 47 of the Act shall
E not stand in their way for trial by a Security Force Court. The
bar of trial by a Security Force Court though is lifted, but it does
not mean that the accused who had committed the offence of
the nature indicated in Section 47 of the Act shall necessarily
have to be tried by a Security Force Court. In a given case,
F there may not be a bar of trial by a Security Force Court, but
still an accused can be tried by a Criminal Court. In other words,
in such a situation, the choice of trial is between the Criminal
Court and the Security Force Court. This situation is visualized
under Section 80 of the Act, which reads as follows:
G
"SO.Choice between criminal court and Security
Force Court.- When a criminal court and a Security Force
Court have each jurisdiction in respect of an offence, it
shall be in the discretion of the Director-General, or the
Inspector-General or the Deputy Inspector-General within
·H
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1083
[CHANDRAMAULI KR. PRASAD, J.]
whose command the accused person is serving or such A
other officer as may be prescribed, to decide before which
court the proceedings shall be instituted, and, if that officer
decides that they shall be instituted before a Security
Force Court, to direct that the accused person shall be
detained in Force custody." B
13. As we have observed above, in the present case, the
Criminal Court and the Security Force Court each have
jurisdiction for trial of the offence which the accused persons
are alleged to have committed. In such a contingency Section
80 of the Act has conferred discretion on the Director General C
or the Inspector General or the Deputy Inspector General of the
Force within whose Command the accused person is serving,
to decide before which court the proceeding shall be instituted.
Section 141 of the Act confers power on the Central
Government to make rules for the purpose of carrying into effect D
the provisions of the Act. It is relevant here to state that the
Central Government in exercise of the powers under Section
141 (1) and (2) of the Act has made the Border Security Force
Rules, 1969, hereinafter referred to as "the Rules". Chapter
VI of the Rules is in relation to choice of jurisdiction between E
Security Force Court and criminal court. Thus, for exercise of
discretion under Section 80 of the Act, Rules have been framed
and Rule 41 of the Rules, which is relevant for the purpose,
reads as follows:
F
"41. Trial of cases either by Security Force Court or
criminal court.- (1) Where an offence is triable both by a
criminal court and a Security Force Court, an officer
referred to in section 80 may,-
(i) (a) where the offence is committed by the accused G
in the course of the performance of his duty as a
member of the Force, or
(b) where the offence is committed in relation to
property belonging to the Government or the Force H
1084 SUPREME COURT REPORTS [2013] 2 S.C.R.
A or a person subject to the Act, or
(c) where the offence is committed against a person
subject to the Act,
direct that any person subject to the Act, who is
B alleged to have committed such an offence, be tried
by a Court; and
(ii) in any other case, decide whether or not it would
be necessary in the interests of discipline to claim
c for trial by a Court any person subject to the Act who
is alleged to have committed such an offence.
(2) In taking a decision to claim an offender for trial by
a Court, an officer referred to in section 80 may take
into account all or any of the following factors,
D namely:-
(a) the offender is on active duty or has been warned for
active duty and it is felt that he is trying to avoid such duty;
E (b) the offender is a young person undergoing training and
the offence is not a serious one and the trial of the offender
by a criminal court would materially affect his training.
(c) the offender can, in view of the nature of the case, be
dealt with summarily under the Act."
F
14. Rule 2 (c) of the Rules defines Court to mean the
Security Force Court. A bare reading of Rule 41(1) makes it
evident that where the offence is committed in the course of
the performance of duty as a member of the Force or where
G the offence is committed in relation to property belonging to the
Government or the Force or a person subject to the Act or where
the offence is committed against a person subject to the Act,
the officer competent to exercise the power under Section 80
of the Act may direct that the members of the Force who have
H committed the offence, be tried by a Security Force Court. The
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1085
[CHANDRAMAULI KR. PRASAD, J.]
allegations in the present case do not indicate that the accused A
committed the offence in course of performance of their duty
as a member of the Force or in relation to property belonging
to the Government or the Force or a person subject to the Act
or the offence was committed against a person subject to the
Act. In that view of the matter, the aforesaid ingredients are B
not satisfied and, therefore, the jurisdictional fact necessary for
trial of the accused persons by a Security Force Court does
not exist. Rule 41 (1){ii) further authorizes the officer competent
to exercise its power under Section 80 of the Act to decide as
to whether or not it would be necessary in the interest of c
discipline to claim for trial by a Security Force Court. It is worth
mentioning here that Rule 41 (2) enumerates the factors which
the officer competent under Section 80 of the Act is to take into
account for taking a decision for trial of an accused by a
Security Force Court. None of the clauses of Rule 41 (1 )(i) and 0
41 (2) apply in the facts of the present case. The condition
under which the authority could exercise the discretion is
provided under Rule 41 (1 )(ii) of the Rules.
15. We must answer here an ancillary submission. It is
pointed out that the Rules made to give effect to the provisions E
of the Act has to be consistent with it and if a rule goes beyond
what the Act contemplates or is in conflict thereof, the rule must
yield to the Act. It is emphasized that Section 80 of the Act
confers discretion on the Officer within whose Command the
accused person is serving the choice between Criminal Court F
and Security Force Court without any rider, whereas Rule 41
of the Rules specifies grounds for exercise of discretion.
Accordingly, it is submitted that this rule must yield to Section
80 of the Act. We do not find any substance in this submission.
G
16. One of the most common mode adopted by the
legislature conferring rule making power is first to provide in
general terms i.e., for carrying into effect the provisions of the
Act, and then to say that in particular, and without prejudice to
the generality of the foregoing power, rules may provide for H
1086 SUPREME COURT REPORTS [2013] 2 S.C.R.
A number of enumerated matters. Section 141 of the Act, with
which we .are concerned in the present appeal, confers on the
Central Government the power to make rules is of such a
nature. It reads as follows:
"141. Power to make rules.-(1) The Central Government
B
may, by notification, make rules for the purpose of carrying
into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of
the foregoing power, such rules may provide for,-
c
(a) the constitution, governance, command and
discipline of the Force;
(b) the enrolment of persons to the Force and the
recruitment of other members of the Force;
D
(c) the conditions of service including deductions
from pay and allowances of members of the Force;
(d) the rank, precedence, powers of command and
E authority of the officers, subordinate officers, under-
officers and other persons subject to this Act;
(e) the removal, retirement, release or discharge
from the service of persons subject to this Act;
F (f) the purposes and other matters required to be
prescribed under section 13;
(g) the convening, constitution, adjournment,
dissolution and sittings of Security Force Courts,
the procedure to be observed in trials by such
G
courts, the persons by whom an accused may be
defended in such trials and the appearance of such
persons thereat;
(h) the confirmation, revision and annulment of, and
H petitions against, the findings and sentences of
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1087
[CHANDRAMAULI KR. PRASAD, J.]
Security Force Courts; A
(i) the forms of orders to be made under the
provisions of this Act relating to Security Force
Courts and the awards and infliction of death,
imprisonment and detention;
B
0) the carrying into effect of sentences of Security
Force Courts;
(k) any matter necessary for the purpose of carrying
this Act into execution, as far as it relates to the c
investigation, arrest, custody, trial and punishment
of offences triable or punishable under this Act;
(I) the ceremonials to be observed and marks of
respect to be paid in the Force;
D
(m) the convening of, the constitution, procedure
and practice of, Courts of inquiry, the summoning
of witnesses before them and the administration of
oaths by such Courts;
E
(n) the recruitment and conditions of service of the
Chief Law Officer and the Law Officers;
(o) any other matter which is to be, or may be
prescribed or in respect of which this Act makes
no provision or makes insufficient provision and F
provision is, in the opinion of the Central
Government, necessary for the proper
implementation of this Act.
(3) Every rule made under this Act shall be laid, as soon G
as may be after it is made, before each House of
Parliament while it is in session for a total period of thirty
days which may be comprised in one session or in two
more successive sessions, and if, before the expiry of the
session immediately following the session or the H
1088 SUPREME COURT REPORTS [2013) 2 S.C.R.
A successive sessions aforesaid both Houses agree in
making any modification in the rule or both Houses agree
that the rule should not be made, the rule shall thereafter
have effect only in such modified form or be of no effect,
as the case may be; so, however, that any such
B modification or annulment shall be without prejudice to the
validity of anything previously done under that rule."
17. In our opinion, when the power is conferred in general
and thereafter in respect of enumerated matters, as in the
present case, the particularlisation in respect of specified
C subject is construed as merely illustrative and does not limit the
scope of general power. Reference in this connection can be
made to a decision of this Court in the case of'Rohtak & Hissar
Districts Electric Supply Co. Ltd. v. State of U.P., AIR 1966
SC 1471, in which it has been held as follows:
D
" .......... Section 15(1) confers wide powers on the
appropriate Government to make rules to carry out the
purposes of the Act; and Section 15(2) specifies some of
the matters enumerated by clauses (a) to (e), in respect
E of which rules may be framed. It is well-settled that the
enumeration of the particular matters by sub-section (2) will
not control or limit the width of the powers conferred on the
appropriate Government by sub-section (1) of Section 15:
and so, if it appears that the item added by the appropriate
F Government has relation to conditions of employment, its
addition cannot be challenged as being invalid in law........ "
(Underlining ours)
18. The Privy Council applied this principle in the case of
G Emperor v. Sibnath Banerji, AIR 1945 PC 156, to uphold the
validity of Rule 26 of the Defence of India Rules, which though
was found in excess of the express power conferred under
enumerated provision, but covered under general power.
Relevant portion of the judgment reads as under:
H
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1089
[CHANDRAMAULI KR. PRASAD, J.]
"Their Lordships are unable to agree with the A
learned Chief Justice of the Federal Court on his statement
of the relative positions of sub-sections (1) and (2) of
Section 2, Defence of India Act, and counsel for the
respondents in the present appeal was unable to support
that statement, or to maintain that R.26 was invalid. In the B
opinion of their Lordships, the function of sub-section (2)
is merely an illustrative one; the rule-making power is
conferred by sub-section (1), and "the rules" which are
referred to in the opening sentence of sub-section (2) are
the rules which are authorized by, and made under, c
sub-section (1); the provisions of sub-section (2) are not
restrictive of sub-section (1), as indeed is expressly stated
by the words "without prejudice to the generality of the
powers conferred by sub-section (1)." There can be no
doubt - as the learned Judge himself appears to have D
thought- that the general language of sub-section (1) amply
justifies the terms of R.26, and avoids any of the criticisms
which the learned Judge expressed in relation to sub-
section (2).
Their Lordships are therefore of opinion that Keshav E
Ta/pade v. Emperor, I.LR. (1944) Born. 183, was wrongly
decided by the Federal Court, and that R.26 was made in
conformity with the powers conferred by sub-section (1) of
Section 2, Defence of India Act.. ....... "
F
19. A constitution Bench of this Court in the case of Afzal
Ullah v. State of Uttar Pradesh, AIR 1964 SC 264, quoted with
approval the law laid down by the Privy Council in the case of
Sibnath Banerji (supra) and held that enumerated provisions
do not control the general terms as particularization of topics G
is illustrative in nature. It reads as follows:
"13. Even if the said clauses did not justify the impugned
bye-law, there can be little doubt that the said bye-laws
would be justified by the general power conferred on the
Boards by Section 298(1 ). It is now well-settled that the H
1090 SUPREME COURT REPORTS [2013] 2 S.C.R.
A specific provisions such as are contained in the several
clauses of Section 298(2) are merely illustrative and they
cannot be read as restrictive of the generality of powers
prescribed by Section 298(1 ), vide Emperor v. Sibnath
Banerji, AIR 1945 PC 156. If the powers specified by
B Section 298(1) are very wide and they take in within their
scope bye-laws like the ones with which we are concerned
in the present appeal, it cannot be said that the powers
enumerated under Section 298(2) control the general
words used by Section 298( 1). These latter clauses merely
c illustrate and do not exhaust all the powers conferred on
the Board, so that any cases not falling within the powers
specified by Section 298(2) may well be protected by
Section 298(1), provided, of course, the impugned bye-law
can be justified by-reference to the requirements of
Section 298(1). There can be no doubt that the impugned
D
bye-laws in regard to the markets framed by Respondent
No. 2 are for the furtherance of municipal administration
under the Act, and so, would attract the provisions of
Section 298(1 ). Therefore, we are satisfied that the High
Court was right in coming to the conclusion that the
E impugned bye-laws are valid."
20. In view Qf what we have observed above it is evident
that Rule 41 of the Rules has been made to give effect to the
provisions of the Act. In our opinion, it has not gone beyond
F what the Act has contemplated or is any way in, conflict thereof.
Hence, this has to be treated as if the same is contained in
the Act. Wide discretion has been given to the specified officer
under Section 80 of the Act to make a choice between a
Criminal Court and a Security Force Court but Rule 41 made
G for the purposes of carrying into effect the provision of the Act
had laid down guidelines for exercise of that discretion. Thus,
in our opinion, Rule 41 has neither gone beyond what the Act
has contemplated nor it has supplanted it in any way and,
therefore, the Commanding Officer has to bear in mind the
H guidelines laid for the exercise of discretion.
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1091
[CHANDRAMAULI KR. PRASAD, J.]
21. To test as to whether the Commanding Officer, who had A
exercised the power under Section 80 of the Act, satisfied the
aforesaid requirement, it is apt to reproduce the application
filed by him in this regard. The relevant portion of the
application reads as follows:
B
'Whereas a criminal case under FIR No. 04/201 of
Police Station Nishat titled State Vs. Lakhwinder Kumar
and another is pending against Lakhwinder Kumar and
Randhir Kumar Birdi before your Court for adjudication.
2. Whereas the said accused persons namely Lakhwinder C
Kumar (No. 01005455 Constable of 68 Bn BSF} and
Randhir Kumar Birdi (Commandant BSF} are serving
under my command and,
3. Whereas in exercise of my discretion as envisaged in 0
Section 80 of the BSF Act, 1968, I have decided to
institute proceedings against the said accused persons
Lakhwinder Kumar and Randhir Kumar Birdi before the
Border Security Force Court.
4. Whereas, the accused persons i.e. Lakhwinder Kumar E
and Randhir Kumar Birdi are presently under judicial
custody and in your control.
5. I therefore request you to stay proceedings in your court
against the two accused persons and may forward all F
connected documents and exhibits of this case and
custody of accused person to the undersigned as per
Section 549 of Cr.P .C. 1989 (J & K} for instituting
proceedings against them under the BSF Act and Rules
made thereunder. G
6. That the outcome of the tri.al of the accused persons by
Border Security Force Court of the result of effectual
proceedings instituted or ordered to be taken against them
shall be intimated as per Rules 7 of the J & K Criminal
H
1092 SUPREME COURT REPORTS [2013] 2 S.C.R.
A Courts and Court Martial (Adjustment of Jurisdiction) Rules,
1983."
22. The Commanding Officer, thus, has exercised his
power under Section 80 of the Act and excepting to say that
the said power has been exercised in his discretion, there is
8
not even a whisper as to why said discretion has been exercised
for trial of the accused persons by a Security Force Court. The
Commanding Officer has nowhere stated that the trial of the
accused by Security Force Court is necessary in the interest
C of discipline of the Force. Once a statutory guideline has been
issued for giving effect to the provisions of the Act, in our
opinion, the exercise of discretion without adherence to those
guidelines shall render the decision vulnerable. In our opinion,
the Commanding Officer has exercised his power ignorant of
the restriction placed on him under the Rules. Having found
D that the Commanding Officer's decision is illegal, the order
passed by the learned Chief Judicial Magistrate as affirmed
by the High Court based on that cannot be allowed to stand.
23. It has also been pointed out on behalf of the appellant
E that after lodging of the first information report, the Force
voluntarily handed over the custody of accused Lakhwinder
Kumar on 10th of February, 2010 and R.K. Birdi on 4th of
March, 2010 and allowed the investigation to be conducted by
the police without any objection and did not exercise option for
F trial by Security Force Court. Later on, such an option cannot
be exercised, submits the learned counsel. In support of the
submission, reliance has been placed on a decision of this
Court in the case of Joginder Singh v. State of H.P., (1971) 3
SCC 86, and our attention has been drawn to Paragraph 29
G of the judgment which reads as follows:
"29. Rule 4 is related to clause (a) of Rule 3 and will
be attracted only when the Magistrate proceeds to
conduct the trial without having been moved by the
competent military authority. It is no doubt true that in this
H case the Assistant Sessions Judge has not given a written
STATE OF J & K v. LAKHWINDER KUMAR & ORS. 1093
[CHANDRAMAULI KR. PRASAD, J.]
notice to the Commanding Officer as envisaged under A
Rule 4 .. But, in our view, that was unnecessary. When the
competent military authorities, knowing full well the nature
of the offence alleged against the appellant, had released
him from military custody and handed him over to the civil
authorities, the Magistrate was justified in proceeding on B
the basis that the military authorities had decided that the
appellant need not be tried by the Court-martial and that
he could be tried by the ordinary criminal court."
24. This submission does not commend us. As observed C
earlier, on the very date of filing of the charge-sheet, an
application was filed on behalf of the Force seeking time to
exercise option for trial of the accused by the Security Force
Court. On the following date such an application was filed. At
that particular point of time the trial of the accused persons had
not commenced and before it could commence, the option was D
exercised. As regards the authority of this Court in the case
of Joginder Singh (supra), the same is clearly distinguishable.
In the said case, the Criminal Court proceeded with the trial of
a military personnel without complying Rule 4 of the Criminal
Courts and Court Martial (Adjustment of Jurisdiction) Rules, E
1952, which obliged the Criminal Court to give written notice
to the Commanding Officer of the accused before trying the
said accused. The Criminal Court did not give any notice to
the Commanding Officer and proceeded to try the accused and
ultimately conviction was recorded. Said conviction was F
assailed on the ground that the Criminal Court having
proceeded to try the accused without giving any notice, the
conviction is vitiated. While answering the said question this
Court took into consideration the conduct of the Commanding
Officer of releasing the accused from military custody and F
handing over the accused to the authorities and in that
background observed that the Criminal Court was justified in
proceeding with the trial and failure to give notice to the
Commanding Officer by the Criminal Court shall not vitiate the
conviction. Here, in the present case, the Force has exercised H
1094 SUPREME COURT REPORTS [2013] 2 S.C.R.
A his option for trial of the accused immediately on submission
of the charge-sheet and before the commencement of the trial.
Hence, the submission made has no substance and is rejected
accordingly.
25. In the facts and circumstances of the case, we give
8
liberty to the Director General of the Force, if so advised, to
re-visit the entire issue within eight weeks bearing in mind the
observation aforesaid in accordance with law and if he comes
to the conclusion that the trial deserves to be conducted by the
Security Force Court, nothing will prevent him to make an
C appropriate application afresh before the Chief Judicial
Magistrate. Needless to state that in case the Director General
of the Force takes recourse to the aforesaid liberty and files
application for the trial by the Security Force Court, the Chief
Judicial Magistrate shall consider the same in accordance with
D law. It is made clear that observations made in these appeals
are for the purpose of their disposal and shall have no bearing
on trial.
26. In the result, both the appeals are allowed, the
E impugned judgment and order of the Chief Judicial Magistrate
dated 25th of November, 2010 and that of the High Court dated
21st October, 2011 are set aside. The Security Force Court
shall forthwith transmit the record sent to it, to the Chief Judicial
Magistrate, Srinagar, w.ho in turn shall proceed in the matter in
F accordance with law bearing in mind the observation aforesaid.
R.P. Appeals allowed.
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