Excelsior Correspondent
Srinagar, May 2: High Court has struck down the Rule 129 of the Border Security Force (BSF) from its Rules by declaring it ultra vires for restricting the rights of the accused.
Under the rule, the petitioner-accused was declined the information of court proceedings and the HC quashed the proceedings against the accused concluded by the General Security Force Court (GSFC) from the stage of leading defence evidence.
Justice Sanjeev Kumar recorded that it fails to understand as to how by restricting the right of the accused to obtain certified copies of the court proceedings and the statement of prosecution witnesses recorded during trial against him and quashed these proceedings against the accused from the stage of adducing evidence.
Court said the right to obtain the copies of proceedings is a fundamental right of fair trial of the accused and would help in proper discharge of the duties of members of the force. “For these reasons, challenge by the petitioner to Rule 129 of the Border Security Force Rules, 1969 succeeds and the impugned Rule is declared ultra vires part III of the Constitution, particularly Article 21 of the Constitution of India”, reads the order.
The Court concluded that the proceedings against the petitioner-BSD personnel Rovinder Singh by the General Security Force Court (GSFC) are quashed from the stage of leading defence evidence.
Court said the matter shall be taken up by the GSFC against the accused-Singh from the stage of conclusion of the prosecution evidence. “The petitioner shall be provided certified copies of the proceedings as also the copies of the statements of prosecution witnesses recorded during trial against or in favour of him before asking him to enter his defence”, Court directed.
Court asked the GSFC to proceed with the trial and conclude the proceedings with reasonable dispatch, of course, strictly as per the provisions of the Act and the Rules framed there-under. It is on 27.11.2017, the petitioner-Singh while being posted in 1055 BSF Arty Regiment was detailed as guard at Arty Magazine in the BSF Campus Bandipora (J&K) along with other personnel was found missing from the post resulting into GSFC proceeding against him for dereliction of his duties.
Court has viewed that Rule 129 of the BSF Rules is in any manner aimed to ensure proper discharge of duties by the members of the BSF and maintenance of discipline among them and, therefore, could be saved on the strength of Article 33 of the Constitution of India.
The court while discussing the Article 33 of the Constitution in the context of modification or abridgement of fundamental rights of the members of the armed forces or force charged with maintenance of public order etc said, the crux is that the constitution empowers the Parliament to determine by law extent to which the rights conferred by part III of the constitution shall be restricted or abrogated in their application to the members of the armed forces or the forces charged with maintenance of public order only if it is necessary to ensure proper discharge of their duties and maintenance of discipline among them.
Court said that undoubtedly, BSF, is a disciplined force raised for ensuring security of borders of India and for matters connected therewith. “However, I fail to understand as to how by restricting right of the accused to obtain certified copies of the proceedings and the statement of prosecution witnesses recorded during trial against an accused, which is a fundamental right of fair trial of the accused, would help in proper discharge of the duties of members of the force and how it will help in maintaining discipline among them”, Justice Kumar recorded.
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