In a judgment of far-reaching consequences for disturbed areas in the country, the Supreme Court on Thursday set aside a BSF court trial and ordered a civil court to go ahead with criminal proceedings against two BSF personnel accused of killing a Kashmir teenager Zahid Farooq in February 2010.
A bench of Justice Chandramauli Prasad and Justice Ibrahim Kalifulla, in a 33-page judgment, a copy of which was procured by Hindustan Times, overruled a J&K high court order of October 21, 2010, which had transferred the trial in the case to general security forces court (GSFC) under Section 80 of the BSF Act of 1968.
The apex court termed "very distressing" the allegations of the victim's family against BSF commandant RK Birdi and constable Lakhwinder Kumar, who shot dead the 17-year-old youngster following a verbal duel on February 5, 2010, near his home on Boulevard Road, a tourist hub on the outskirts of Srinagar city.
Notwithstanding the central government notification that puts security forces deployed in Jammu and Kashmir (a disturbed area) on "active duty" and hence their "discretion" to court martial an accused, the SC said the said notification "does not make any reference to the nature of duty."
"There is no connection, not even the remotest one, between their duty as members of the Force and the crime in question. The situs of the crime was neither under Force(s') control nor was the victim of crime in any way connected with the Force..," the judgment said.
Interpreting various court judgments and provisions of the BSF Act, the apex court held that the discretion of commanding officer to try its men in their own court was "not absolute".
"The commanding officer has nowhere stated that the trial of the accused by the security force court is necessary in the interest of discipline of the Force... In our opinion, the commanding officer has exercised his power ignorant of the restriction placed on him under the rules.
"Having found that the commanding officer's decision is illegal, the order passed by the learned chief judicial magistrate (of Srinagar) as affirmed by the (J&K) high court based on that cannot be allowed to stand," the apex court ruled.
The BSF had approached the CJM Srinagar and later the J&K high court after the two accused were arrested by police and a case of murder filed against them.
The high court, on the plea of the BSF that the two were on "active duty" when the crime happened, had ordered the transfer of the case records along with the custody of the accused to general security forces court.
The killing of Zahid Farooq had evoked massive protests across the valley. Under pressure, the Omar Abdullah government had taken up Zahid's killing with the then union home minister P Chidambaram and it was only after the latter's intervention that the BSF had admitted killing the boy "accidentally".