Roshan Prakash vs Commandant G. Company and Others

V.K. Gupta, C.J.—This petition is being disposed of on the preliminary legal ground relating to the lack of territorial jurisdiction of this Court for entertaining or disposing of this petition.

Through this petition filed under Article 226 of the Constitution of India, the Petitioner has challenged the impugned orders as well as impugned actions of the Respondents whereby the Petitioner was punished by a Summary Security Force Court (SSFC) and convicted as well as sentenced to rigorous imprisonment of 30 days and reduced to the rank of Constable from Head Constable.

Brief facts relevant for the disposal of this petition, in the light of the aforesaid preliminary objection, are that the Petitioner was enrolled in the Border Security Force (BSF) as a Constable (GD) on 19th May 1987. He completed his basic training in West Bengal in the month of February 1988. As per the Service Record of the Petitioner, during his entire service, he was awarded punishments as well as adverse/bad entries on four occasions prior to the commission of the offence by him, which forms subject matter of this writ petition. Details of these punishments and entries are contained in Para ''6'' of the counter affidavit filed by the Respondents. As far as the fifth punishment is concerned, the relevant facts leading to it being awarded are as under:

On 21st December 2004, the Petitioner was deployed for cycle patrolling between 9 p.m. to 11 p.m. The Petitioner, along with his personal weapon (9 mm Carbine Machine), ammunition and cycle, left for cycle patrolling. Even though after patrolling he was supposed to return to the Post, but instead, he went to village Amuliya, consumed country liquor there and molested a local lady resident. The local villagers apprehended the Petitioner and the official machinery thereafter immediately swung into action. An inquiry was held by the Border Security Force which was more in the nature of a fact finding Enquiry. Thereafter, the Commandant of the Battalion called the Petitioner for a preliminary hearing under Rule 45 of the Border Security Force Rules and charged him for committing the offence. At this hearing, the Petitioner pleaded "guilty" to the charge, but keeping in view the seriousness of offence committed, the Commandant of the Battalion ordered a Record of Evidence to find out more details etc. After this was done, the Petitioner was tried by the ''Summary Security Force Court'' under the Border Security Force Act and given the aforesaid punishments, upon conviction, to suffer rigorous imprisonment for 30 days in force custody and to be reduced to the rank of a Constable.

Aggrieved against this order of conviction and sentence, the Petitioner preferred statutory appeal/petition. The Director General, Border Security Force vide his order dated 27th September 2005 rejected the said statutory appeal/petition submitted by the Petitioner.

It is the undisputed case of the parties in this Court that at the time the offence was committed by the Petitioner, the Petitioner was serving in the Border Security Force in the State of West Bengal. It is also the undisputed case of the parties in this Court that the alleged offence was committed in the State of West Bengal, where all the aforesaid enquiries were held and the aforesaid trial by SSFC was held and conducted. It is also the undisputed case of the parties that upon conviction the order of conviction as well sentence imposed were executed and completed in the State of West Bengal. The statutory appeal/petition submitted by the Petitioner was disposed of in New Delhi.

Clause (2) of Article 226 of the Constitution of India, which specifically relates to the extent of the exercise of territorial jurisdiction by a High Court stipulates and lays down that the power of issuance of writs conferred under Clause (1) of this Article can be exercised by the High Court while exercising jurisdiction in relation to the territories within which the cause of action, either wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. Clause (2) of Article 226 of the Constitution of India is reproduced herein which reads thus:

(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

In the present case from the facts which have been narrated in the earlier part of this judgment, it is easily discernible that no part of cause of action accrued in favour of the Petitioner in the State of Uttarakhand because the cause of action being a whole bundle of facts, in the light of the circumstances narrated above, accrued as a whole, in its entirety in the State of West Bengal where the alleged offence was committed, where the enquiries took place, the trial by the Summary Security Force Court was conducted and the punishments were awarded. The cause of action can be said to have partially accrued at Delhi also where the statutory appeal of the Petitioner was considered and rejected.

Mere residence of the Petitioner in the State of Uttarakhand does not amount to accrual of any cause of action in his favour in Uttarakhand State. It is noteworthy to mention here that at the time of filing of the writ petition as well as presently the Petitioner was/is not posted in any part of Uttarakhand State. He just belongs to Uttarakhand State and, may be, visits Uttarakhand State on casual basis.

In the light of the aforesaid facts and aforesaid discussion, it can be safely said and held that no part of cause of action had accrued to the Petitioner in the State of Uttarakhand. At the risk of reiteration, it is observed that the mere residence of the Petitioner in the State of Uttarakhand does not and cannot clothe this Court with territorial jurisdiction to try, hear and dispose of this case.

The petition is dismissed on the ground that this Court does not have any territorial jurisdiction to entertain, hear or dispose of this petition. No order as to costs.