First time, SC transfers murder trial from Security Forces Court to CJM

Excelsior Correspondent
Jammu, Apr 25: In a judgment of far reaching consequences for security forces operating in the militancy-infested areas in the country in general and Jammu and Kashmir in particular, the Supreme Court of India today directed the General Security Forces Court (GSFC) hearing the trial of BSF officials allegedly involved in the killing of teenager Zahid Farooq in Srinagar in 2010, to be transferred back to the Court of Chief Judicial Magistrate, Srinagar for further proceedings in accordance with law.
These directions were passed by the Division Bench of Supreme Court comprising Justice Chandramauli Kumar Prasad and Justice Fakkir Mohamed Ibrahim Kalifulla while hearing the trial.
This is perhaps, for the first time in the last 20 years, that the Supreme Court of India has directed the transfer of the trial of Security Forces Personnel serving in the Valley from a Security Forces Court to the ordinary Criminal Court set up by the Civil Administration under RPC and J&K CrPC for offences committed against the civilian population.
While setting aside the impugned judgment and order of the Chief Judicial Magistrate, Srinagar dated 25th of November, 2010 and that of the High Court dated 21st October, 2011, the Bench said, “the GSFC shall forthwith transmit the record to the Chief Judicial Magistrate, who in turn shall proceed in the matter in accordance with law bearing in mind the observation.”
Zahid Farooq was allegedly killed by BSF commandant R K Birdi and his sub-ordinate Constable, Lakhwinder Kumar near his residence in Nishat on outskirts of Srinagar on February 5, 2010.
While questioning the use of discretionary powers exercised by the BSF Commanding Officer under Section 80 of the Border Security Force Act, 1968 for making a choice between Criminal Court and Security Court for conducting trial of the accused, the Bench said, “there is not even a whisper as to why the discretion has been exercised for trial by a GSFC. The Commanding Officer (CO) has nowhere stated that the trial of the accused by Security Force Court is necessary in the interest of discipline of the Force”.
“The exercise of such discretion by the CO without adhering to the guidelines as per the provisions of the Act renders the decision vulnerable. The CO has actually exercised the power ignorant of the restrictions placed on him under the Rules”, says the order adding, “having found that the CO’s decision is illegal and therefore the order passed by the learned CJM as affirmed by the High Court based on that cannot be allowed”.
However, giving liberty to the Director General of the Force to re-visit the entire issue within eight weeks while keeping in mind the observation of the Court, the Bench said, “if the chief comes to the conclusion that the trial deserves to be conducted by the Security Force Court, nothing prevents him to submit an application afresh before the CJM. Needless to state that incase 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 law.”
Earlier, on January 29 last, a Division Bench of the Supreme Court comprising Justices C. K. Prasad and M. I. Kalifulla had reserved the orders on the Special Leave Petition filed by the Government of J&K after hearing the final arguments of Gaurav Pachnanda, Senior Advocate Supreme Court, who appeared for the Government of J&K and Rohinton Nariman, Solicitor General of India, who appeared for the Union of India and BSF Authorities.
While reserving its order on the subject, the Bench had directed the Union of India to file an affidavit explaining the safeguards and the protocol to be followed in the trial by the General Security Forces Court (GSFC), so that there is no miscarriage of justice.
The J&K High Court had dismissed a Criminal Revision petition filed by Government of J&K on October 21, 2011 against the order of CJM, Srinagar shifting the custody of the two accused to BSF personnel for conducting their trial in GSFC. Justice J P Singh of J&K High Court had ordered that since Commandant Birdi and Constable Kumar were on active duty when the incident took place, the General Security Forces Court (GSFC) has the jurisdiction to conduct their trial.
The Government of J&K had filed a Special Leave Petition challenging the decisions of the J&K High Court as well as the CJM, Srinagar to allow the BSF Authorities to transfer the trial of BSF Commandant RK Birdi and his sub-ordinate Constable Lakhwinder Kumar to a General Security Forces Court (GSFC) from the Court of CJM, Srinagar.
In its charge-sheet filed before the CJM, Srinagar the J&K Police had charged them under the Ranbir Penal Code (RPC) Section 302 (murder). The duo was also charged under Section 120-B (criminal conspiracy), Section 201 (destruction of evidence) and Section 307 (attempt to murder).
The killing of Zahid Farooq had evoked massive protests across the Valley. As a result, this decision by the Supreme Court is being seen as a major development in terms of trial of offences committed by officials in uniform.

Follow our WhatsApp channel