Jammu and Kashmir High Court Upholds Simultaneous Criminal and Departmental Proceedings for BSF Officer

Court of Inquiry and Criminal Trial Can Coexist, Rules Court, Dismissing Appeal Against Suspension and Inquiry Initiation

In a significant ruling, the Jammu and Kashmir High Court at Srinagar, presided over by Justices Mr. Sanjeev Kumar and Sanjay Parihar, dismissed an appeal challenging the simultaneous conduct of criminal and departmental proceedings against a Border Security Force (BSF) officer, Akhand Prakash Shahi. The court upheld the legality of pursuing both proceedings concurrently, citing no statutory or legal barriers that prevent such actions.

The case stemmed from a complaint lodged by a female Assistant Sub-Inspector (ASI) of the BSF against Shahi, who was serving as Assistant Commandant at the time. Following the complaint, an FIR was registered under Section 376 of the Indian Penal Code (IPC) at Dwarka Police Station in New Delhi, leading to criminal proceedings against Shahi. Concurrently, the BSF initiated a Court of Inquiry under Rule 173 of the BSF Rules, 1969, to investigate the allegations.

The appellant, represented by advocates Mr. Danish Majid Dar and Ms. Mehjabeena, argued that simultaneous proceedings would prejudice his defense in the criminal trial. However, the court maintained that the Court of Inquiry was merely a fact-finding mission, not a disciplinary proceeding, and thus did not infringe upon the appellant's rights.

The court emphasized that the inquiry's purpose was to gather evidence to assist the BSF in determining whether to initiate disciplinary actions. It noted that the findings from the inquiry are not binding but serve as preliminary insights for decision-making.

Moreover, the court addressed the appellant's suspension, which was challenged on grounds of undue delay in departmental proceedings. The judges clarified that the suspension was a preventive measure, justified by the serious nature of the charges under Section 376 IPC, and was not contingent upon the progression of departmental proceedings, which had not yet commenced.

Ultimately, the court concluded that the writ petition challenging the initiation of the Court of Inquiry was premature, as no formal disciplinary proceedings had been initiated. The court reiterated that the appellant's participation in the inquiry could potentially aid his defense by allowing him to present his case before any formal disciplinary action is considered.

This decision reaffirms the legal position that criminal and departmental proceedings can proceed in tandem, provided there is no explicit legal prohibition. It underscores the role of a Court of Inquiry as a preliminary step in the administrative process, distinct from formal disciplinary actions.

The ruling has significant implications for similar cases where individuals face both criminal charges and internal investigations, particularly within security forces, highlighting the judiciary's stance on balancing procedural fairness with administrative efficiency.

Bottom Line:

Departmental proceedings and criminal proceedings can proceed simultaneously unless there is a statutory or legal bar. The Court of Inquiry under BSF Rules is a fact-finding inquiry and not a disciplinary proceeding.

Statutory provision(s): Border Security Force Rules, 1969 Rules 173, 174; Section 376 IPC

Akhand Prakash Shahi v. Union of India, (Jammu And Kashmir)(Srinagar)(DB) : Law Finder Doc Id # 2821162