Supreme Court reserves judgment on Special Leave Petition

‘Action by BSF Commandant VK Birdi, His Bodyguard Not Covered In Protection Given To Them Under BSF Act’

ZAHID FAROOQ CASE

D A RASHID

Srinagar, Jan 29: The Supreme Court Tuesday reserved decision on the Special Leave Petition (SLP) filed by uncle of a Kashmir youth killed during the 2010 unrest in the Valley. Ghulam Muhammad Sheikh, uncle of Zahid Farooq had filed the Petition against an order of Jammu and Kashmir High Court.   
 A division bench of the Supreme Court comprising Justices CK Prasad and Ibrahim Kalifulla reserved the judgment after hearing the arguments of the counsels representing the parties. Standing Counsel for Jammu and Kashmir in the SC Sunil Fernandes argued that the action by the accused officer, BSF Commandant VK Birdi and his bodyguard is not covered in the protection given to them under the BSF Act. “The officer has committed the crime which is not in pursuance of his official duty and he should be tried by civil court and not under court martial,” Farnandes argued.
 The J&K High Court had on October 21 last year dismissed the Criminal Revision Petitions filed by Zahid Farooq’s uncle and the State separately against the trial court order that the accused were on active duty when Zahid Farooq was killed on city outskirts in 2010. The court had ruled that the accused would be tried in security forces court.
 In wake of the HC judgment, the order of the Chief Judicial Magistrate Srinagar was upheld paving a way for the accused’s trial in the security forces court.
 Two Criminal Revisions Petitions were filed by the government and the complainant against the order passed by the CJM Srinagar wherein the court had allowed application of BSF seeking the trial of the two accused—BSF Commandant V K Birdi and his bodyguard.
 The order passed by the CJM Srinagar was challenged on the grounds that the accused were not discharging an active duty and they could not be tried in the Security Forces Court as the alleged offences were civil and the accused could be tried in ordinary criminal courts.
 The counsel representing the state and the counsel for the complainant had also argued that Under Section 80, read with Rule 41 of the BSF Act, no decision in formal writing by the competent authority (DIG BSF) was in accordance with the provisions of BSF Act.
 In its decision, the HC had observed: “The present case not being a case covered by Rule 42 of the Border Security Force Act, the decision taken by the DIG BSF to demand custody of the accused, who were on active duty at that time of the commission of the offence, cannot therefore be faulted.”
 For determination of active duty, the Court had held: “For such duty it may not be relevant in view of the admitted position that the accused were on duty in state of Jammu and Kashmir during the period indicated in Notification dated 18 August 2007 are to be treated on active duty in view of the specific statutory provisions as appearing in BSF letter and part of section discussion 2 (1) a of the Border Security Forces Act.”
 While observing that the accused were on active duty on the day of commission of the offence, the court had said that there was no need to examine the nature of their duty.
 Dismissing the Criminal Revision petitions, the court had held: “The accused were on active duty, therefore there was no need to examine the nature of their duty”.

Lastupdate on : Tue, 29 Jan 2013 21:30:00 Makkah time
Lastupdate on : Tue, 29 Jan 2013 18:30:00 GMT
Lastupdate on : Wed, 30 Jan 2013 00:00:00 IST




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