Vs. Union of India & Ors  Insc 490 (22 November 2002)
Hegde & B.P.Singh. Santosh Hegde,J.
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.
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.
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.
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.
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.
the reasons stated above, this appeal fails and the same is dismissed.