2002 JTR(SC) 1148
2003 2 AIC 408 ; 2003 AIR(SC) 4464 ; 2003 1 AWC 343 ; 2003 1 JCR(SC) 159 ; 2002 9 JT 414 ; 2003 1 LLN 1 ; 2002 8 Scale 542 ; 2003 1 SCC 122 ; 2003 SCC(Cri) 855 ; 2003 1 SLR 314 ; 2003 1 UJ 21 ; 2003 1 UPLBEC 125 ; 2003 KHC 722 ; 2002 8 Supreme 396
2002(8) Supreme 396
SUPREME COURT OF INDIA
(From Delhi High Court)
N. Santosh Hegde and B.P. Singh, JJ.
O.P. Dahiya -Appellant
versus
Union of India & Ors. -Respondents
Civil Appeal No. 8848 of 1994
Decided on 22-11-2002
Counsel for the Parties :
For the Appellant : Naresh Kaushik and Mrs. Lalita Kaushik. Advocates.
For the Respondents : Mrs. Rekha Pandey, Ms. Sushma Suri and P. Parmeswaran, Advocates.
IMPORTANT POINT
The question of double jeopardy does not arise in re-trial by a reconstituted Security Force Court because the appellant was not either convicted or acquitted of the charges against him in the first trial.
Act Referred :BORDER SECURITY ACT : S.71(4), S.71(3)
(A) The impugned order was passed under Section 71(3) of the Border Security Forces Act, which empowers the Inspector General (H.Qs.) to dissolve a General Security Force Court and direct a fresh trial. The court observed that the dissolution and reconstitution of a fresh court under Section 71(4) of the same Act was valid in this scenario, as the proceedings were at a stage where the appellant had alleged misconduct by the law officer and prosecutor, and the authority acted to protect the appellant's interest. Thus, the statutory provisions directly govern the validity of the order dissolving the earlier court and re-initiating the trial.
(B) Key legal principles include that an authority acting under Section 71(4) of the Border Security Force Act has the power to dissolve an ongoing court and order a fresh trial, and that dissolution at the instance of the appellant to secure a fair trial does not attract double jeopardy where no final adjudication (conviction or acquittal) has occurred.
Facts of the case:
The appellant challenged an order dated 27-1-1993 directing re-trial by a fresh General Security Force Court. The order was made under Section 71(3) of the Border Security Forces Act after the Inspector General (H.Qs.) dissolved the earlier court due to its inexpediency arising from the conduct of members and the Law Officer. The appellant had earlier alleged that the trial was unfair and that the Law Officer was biased.
Findings of Court:
The High Court held that the authorities had the power to dissolve the court and directed a fresh trial. The dissolution occurred primarily on the complaint made by the appellant alleging unfair conduct by the Law Officer. The court concluded that there was no error in the impugned order.
Issues:
Whether the order dissolving the General Security Force Court and directing a fresh trial under Section 71(3) and Section 71(4) of the Border Security Force Act was valid, and whether the plea of double jeopardy arises in these circumstances.
Ratio Decidendi:
The court was dissolved at the instance of the appellant to secure a fair trial, and the reconstitution of a fresh court under Section 71(4) was within the statutory authority. Since no final adjudication had occurred, the plea of double jeopardy does not apply.
Result:
The appeal is dismissed.
(A) The impugned order was passed under Section 71(3) of the Border Security Forces Act, which empowers the Inspector General (H.Qs.) to dissolve a General Security Force Court and direct a fresh trial. The court observed that the dissolution and reconstitution of a fresh court under Section 71(4) of the same Act was valid in this scenario, as the proceedings were at a stage where the appellant had alleged misconduct by the law officer and prosecutor, and the authority acted to protect the appellant's interest. Thus, the statutory provisions directly govern the validity of the order dissolving the earlier court and re-initiating the trial.
(B) Key legal principles include that an authority acting under Section 71(4) of the Border Security Force Act has the power to dissolve an ongoing court and order a fresh trial, and that dissolution at the instance of the appellant to secure a fair trial does not attract double jeopardy where no final adjudication (conviction or acquittal) has occurred.
Facts of the case:
The appellant challenged an order dated 27-1-1993 directing re-trial by a fresh General Security Force Court. The order was made under Section 71(3) of the Border Security Forces Act after the Inspector General (H.Qs.) dissolved the earlier court due to its inexpediency arising from the conduct of members and the Law Officer. The appellant had earlier alleged that the trial was unfair and that the Law Officer was biased.
Findings of Court:
The High Court held that the authorities had the power to dissolve the court and directed a fresh trial. The dissolution occurred primarily on the complaint made by the appellant alleging unfair conduct by the Law Officer. The court concluded that there was no error in the impugned order.
Issues:
Whether the order dissolving the General Security Force Court and directing a fresh trial under Section 71(3) and Section 71(4) of the Border Security Force Act was valid, and whether the plea of double jeopardy arises in these circumstances.
Ratio Decidendi:
The court was dissolved at the instance of the appellant to secure a fair trial, and the reconstitution of a fresh court under Section 71(4) was within the statutory authority. Since no final adjudication had occurred, the plea of double jeopardy does not apply.
Result:
The appeal is dismissed.
JUDGMENT
Santosh Hegde, J.-The appellant before us challenged by way of a writ petition order an order dated 27-1-1993 directing re-trial by a fresh General Security Force Court. This order came to be made by the respondents while the petitioner was being tried by the fresh General Security Force Court for certain misconduct alleged against him and by the said order exercising the authority vested under Section 71(3) of the Border Security Forces Act, the Inspector General (H.Qs.) dissolved the said court on the ground that the functioning of the said court had become inexpedient for reasons arising out of the conduct of the members and Law Officer constituting the said court. By the said order, he also directed the constitution of a fresh court.
2. The allegation of the appellant before the High Court was that the proceedings before the General Security Forces Court had almost come to an end and a re-trial would prejudice his case, apart from the fact that it would amount to double jeopardy.
3. The High Court dismissed the said writ petition holding that the authorities had the power to dissolve the court and directed a fresh trial. It was also noticed that the dissolution took place primarily on the complaint made by the appellant himself alleging that the Law Officer was being very unfair to the appellant. In such situation, the High Court came to the conclusion that there was no error in the impugned order.
4. We have heard the learned counsel for the parties and perused the record. We also notice that the petitioner himself had alleged in para 27 of the writ petition that the trial that was being held was unfair as the law officer and the prosecutor were determined to deny him a fair trial and were endevouring to get him convicted by unfair means. Therefore, it is crystal clear that it is at the instance of the appellant himself the respondent authorities took steps to dissolve the court and constitute a fresh court to protect the interest of the appellant. In such situation, we cannot permit the appellant to contend that any prejudice will be caused to him by such consequential reconstitution of the court. That apart, we notice that the respondents were well within their authority under Section 71(4) of the Border Security Force Act to issue the impugned order. The question of double jeopardy also does not arise because the petitioner was not either convicted or acquitted of the charges against him in the first trial.
5. For the reasons stated above, this appeal fails and the same is dismissed.
(N.K.R.) Appeal dismissed.
***************