Govt contests BSF plea about case transfer
ZAHID FAROOQ KILLING
Srinagar, Nov 2: The government on Tuesday rejected the Border Security Force’s claim that it was their discretion to institute court for the proceedings in Zahid Farooq’s killing case and said the offences committed by the accused were civil and triable by criminal court.
Government filed written arguments before Chief Judicial Magistrate, Yashpal Bourney in support of the already filed objections against the BSF arguments, seeking stay in the civil proceedings against the Commandant R K Birdi and Lakhvinder Kumar, accused of killing Nishat teenager, Zahid Farooq on February 5, and transfer of the case to BSF Court.
Prosecution said the BSF application was not maintainable as the offences committed by the accused were civil and exclusively triable by the criminal court and not by Security Forces Court under the provisions of BSF Act, 1968.
Prosecution on behalf of government said the civil offence had been defined under section 2 (d) of the BSF Act of 1968 which reads, “Civil offence means an offence which is triable by Criminal Court.”
“The section 46 of the BSF Act is subject to the provision of Section 47 of the same Act. BSF Court has no jurisdiction to try the offences for which the accused has been charge sheeted in the court. Hence, the application is liable to be dismissed,” prosecution said.
Earlier, BSF quoting the Section 80 of BSF Act, said when a Criminal Court or a Security Force Court have jurisdiction in the respect of an offence, it shall be the discretion of the official within whose command the accused person is serving to institute court for the proceedings.
Government contested the claim and said Section 80 of the BSF Act was applicable when an offence is triable by both Security Forces Court as well as by ordinary Criminal Court and both courts have concurrent jurisdiction. However, in the present case there was no concurrent jurisdiction to the ordinary Criminal Court and to the Security Forces Court, so Section 80 of BSF Act was not applicable, prosecution said.
BSF had prayed before the CJM to stay proceedings in the court against the accused persons and requested to forward all connected documents and exhibits this case and custody of accused persons to the undersigned as per Section 549 of CrPC 1989 of J&K for instituting proceedings against them under the Act and Rules made there under.
Prosecution said, “Section 549 of CrPC is applicable to military authorities liable to be tried by the Court Marshal. Under the provision of BSF Act of 1968 no Court Marshal is provided, since the offences did not fall under Arms Act so section 549 is non-applicable.”
Government said the accused were posted in Gulmarg and not in Srinagar on the fateful day. Hence they were not performing official duty to maintain law and order in the city, it said, adding the activities of the accused did not fall within the ambit of BSF Act.
Prosecution said the BSF had waved their option for the trial of the accused in the favour of the ordinary Criminal Court after it voluntarily handed over the accused to the police. BSF was made aware that the accused have committed a murder of an innocent boy, who was not subject to the BSF Act, it said.
Prosecution said in the present circumstances public at large doubted the trials committed by the Court Marshal and Security Forces Court, adding if the case was tried by the Forces Court it would not be in the interest of the country.
Prosecution prayed that the application may be rejected and the case may be committed to the court of Principal District and Sessions judge Srinagar for trial under law.
Pertinently, the accused were present before the court. Court has listed the case for November 4.
Lastupdate on : Tue, 2 Nov 2010 21:30:00 Makkah time
Lastupdate on : Tue, 2 Nov 2010 18:30:00 GMT
Lastupdate on : Wed, 3 Nov 2010 00:00:00 IST
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