R. Bhattacharya, J.
1. This revisional application has been filed by the Superintendent and Remembrance of Legal Affairs on behalf of the State of West Bengal against orders passed by the learned Sub-divisional Judicial Magisr trate, Bongaon, 24-Parganas on 22-3-1976 and 21-5-1976 in connexion with the G. R. Case No. 683 of 1974 arising out of Bagda P. S. Case No. 6 of 16-7-1974 Under Section 302 of the IPC.
2. Facts relevant for our purpose may be stated in short. On 16-7-1974 one Sohan Singh, a Naiyak under 72 Bn. Border Security Force, Duttafuliya Base Camp. p. S. Bagda under orders of his Commanding Officer K. B. Singh lodged a First Information Report with police station Bagda that L/MK No. 66722632 Shambu Lama, a driver of the Commanding Officer of 72 Bn. B.S.F. shot at the Quarter Master Ram Dutta Khantwal at his room and Inspector P.N. Bhatta-charjee in his office room with a sten gun and as a result thereof they died instantaneously. It was further alleged that the said Shambu Lama also committed suicide thereafter by shooting himself with the said sten gun. The Officer-in-Charge of the thana who recorded the F. I. R. immediately started investigation, took charge of the dead bodies, held inquest over the corpses, collected alamats and sent the dead bodies for post mortem examination. On 25-7-1974 C. I. D., West Bengal assumed control of the investigation. Ultimately under the order of the Inspector General of Police. West Bengal, B. B. Sengupta, Deputy Superintendent of Police. C. I. D. took up the investigation on and from 11-8-1974. A charge-sheet dated 6-3-1976 was however, submitted after the investigation before the Sub-divisional Judicial Magistrate, Bongaon against K.B. Singh, Commanding Officer of the 72 Bn., B.S.F. Under Section 302/182/109 I.P. Code, against Kashi Nath Chakraborty, a driver constable of 72 Bn. B.S.F. Under Section 302/114/109 I. P. Code and against the informant Sohan Singh who lodged the F.I.R. Under Section 182/302 I. P. Code. On receipt of the charge-sheet and on consideration of the materials on record, the Sub-divisional Judicial Magistrate, Bongaon took cognizance of the offences as alleged and issued summons through the Inspector General, B. S. F. directing the said three accused persons to appear before the Court on 26-4-1976. In the meantime, however, Inspector General, B. S. F., West Bengal by a letter dated 24th Feb. 1976 informed the Sub-divisional Judicial Magistrate that in exercise of the powers conferred on him Under Section 80 of the B. S. F. Act, 1968 the proceedings against the personnel of 72 Bn., B. S. F.. serving under his command who have been made accused in the case would be instituted under the said Act. In the said letter the Sub-divisional Judicial Magistrate was requested that all case papers might be forwarded to the Inspector General for proceeding further in the matter. It appears from the endorsement on the letter filed that the said letter was seen by the Sub-divisional Judicial Magistrate on 27-2-1976 and it was directed to be kept in the; file.
3. The records of the learned Magistrate show that on 22-3-1976 an order . was passed by him on the basis of the letter of the Inspector General, B. S. F. that the entire case record lying with the Court be handed over to the Inspector General, B. S. F. or to any person duly authorised by him. The Investigating Officer was also directed to hand over all the papers lying with him in connexion with the case to the Inspector General, B. S. F. or to any person duly authorised by him. It appears that all the judicial records of the case with connected papers were handed over to a person duly authorised by the Inspector General B. S. F. After the passing of that order, the Investigating Officer filed a petition on 10-4-1976 before the Magistrate for recalling the order passed on 22-3-1976 on the ground that the prosecution got no opportunity to be heard and in fact the learned Magistrate passed the order without hearing the Advocate on behas of the State appearing in the case. The matter was ultimately heard and on 21-5-1976 the learned Magistrate rejected the prayer for recalling or rescinding the order dated 22-3-1976. The learned' Magistrate directed the Investigating Officer to hand over the case diary lying with him to the Inspector General, B. S. F. Against that order end the order dated 22-3-1976 the present revisional application has been filed by the State.
4. We have heard Mr. Chowdhury, the learned counsel appearing on behalf of the petitioner, State of West Bengal and Mr. Banerjee and Mr. Ghosh, the learned counsel appearing on behalf of the Inspector General of the B. S. F., who has been contesting the present application as the opposite party.
5. The grievance of Mr. Chowdhury is that the learned Magistrate had neither jurisdiction nor any occasion to pass an order for handing over all the papers to the Inspector General of the Border Security Force as contained in the order and particularly the police papers lying with the Investigating Officer. From the side of the opposite party it has been contended that when the Border Security Force has taken up the responsibility of investigation and trial on themselves, all connected papers in connexion with this case must be handed over to the authority of the Border Security Force for their investigation and trial if necessary in respect of the case in question. Before dealing with the moot question as to the propriety of the order for handing over the judicial records and the police papers to the Inspector General, B. S. F. we are to take note of certain facts and relevant laws touching the materials on record.
6. Section 80 of the Border Security Force Act. 1968 says that when a Criminal Court and a Security Force Court have each jurisdiction in respect of an offence, it shall be in the discretion of the Director General or the Inspector General or Deputy Inspector General within whose command the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted and that if that Officer prescribes that the proceedings shall be instituted before the Security Force Court, he may direct that the accused shall be detained in Court's custody. Border Security Force Rules have been framed by the Central Government in exercise of the powers conferred by Sub-sections (1) and (2) of Section 141 of the Border Security Force Act, 1968. These Rules lay down the procedure regarding the enquiry, investigation and trial to be conducted by the Authority of the Border Security Force. Rule 50 of Border Security Force Rules provides that where the Commandant considers that it is necessary so to do, he may lodge a report with the police for investigation of any case. Although there is special procedure for enquiry and investigation of cases by the Border Security Force, we find provision that if it is so desired, the police may be requested for investigation of an offence.
7. There is no dispute before us that the offence in question before us is triable by a Criminal Court as well as by the Security Force Court, each having jurisdiction in respect of the offence. Admittedly again the Inspector General of the Border Security Force exercised his option that the present proceedings shall be instituted before the Security Force Court. According to the F. I. R. lodged at the Bagda thana by Sohan Singh, Shambu Lama killed Ram Dutta Khantwal and P. N. Bhattacherji and then committed suicide. During the investigation the State Police on examination of several persons including eyewitnesses found that the informant Sohan Singh as well as K. B. Singh end another were connected with the offence of murder. A charge-sheet was submitted to that effect. The learned Magistrate considered the report of the police embodied in the charge-sheet and took cognizance of the offences alleged to have been committed by the three accused persons named in the chargesheet and, therefore he issued processes against them. That charge-sheet is practically a complaint on which proceedings were started against the accused for the alleged offence. From the affidavit sworn by Golak Behari Majumdar, the Inspector General of the Border Security Force submitted before us, it appears that the Authority has set up a machinery for investigation of the case under Rules framed by the Central Government. Admittedly again, from > the side of the Border Security Force no request has been made to the State Police for investigation. On the other hand the Security Force have their own machinery for investigation and in fact according to their allegation, they have started investigation. If Inspector General, B. S. F. has elected to have the proceedings instituted before the Security Force Court, certainly they are entitled to institute the proceedings as they desire. We fail to understand how the Inspector General. B. S. F. could legitimately ask the Magistrate to hand over all judicial papers lying with the Court in connexion with the case and ask for the papers of investigation conducted by the State Police. If there had been any request of the Security Force Authority for investigation by the State Police and in pursuance of that request any investigation had been done, in that case such Authority might have reasons to get the papers for its consideration in the matter of proceedings before the Security Force Court In the instant case- en investigation in respect of the offence in question is already started. The members constituting the Board of Investigation or the proper Authority for investigation will be at liberty, if so desired, to examine proper and relevant persons whose examination would be necessary for investigation and, if required, production of necessary documents may be obtained according to law. In our view the papers connected with the investigation, either lying with the investigating Officer, namely, the Deputy Superintendent of Police, C. I. D., West Bengal or those lying in Court cannot be directed to be handed over to the Inspector General or anybody authorised by him as has been done by the Sub-divisional Judicial Magistrate. The Investigating Authority of the Border Security Force may take necessary steps for examination of relevant witnesses or perusal of relevant documents on production according to law.
8. We again fail to understand how the learned Sub-divisional Judicial Magistrate could pass orders for handing over all judicial papers and records of the case to the Inspector General, B, S. F. or his authorised agent. Before us none of the learned counsel appearing on behalf of the parties could Cite any law which could permit the learned Magistrate to part with the judicial records of the case and to direct them to be handed over to the Inspector General, B. S. F. We find no provision in the Criminal Rules and Orders framed by this High Court, allowing the learned Sub-divisional Judicial Magistrate to hand over the documents in the manner he has done. We find no reason whatsoever how the judicial records of the Sub-divisional Judicial Magistrate, Bongaon, could be asked to be forwarded to the Inspector General. B. S. F. as requested by the latter. Proceedings have been started against the three persons by the Sub-divisional Judicial Magistrate, Bongaon after his taking cognizance of the offence on the police report in the form of the charge-sheet and in fact processes had been issued against them. The Inspector General, B. S. F. has elected to institute the proceedings in the Security Force Court Under Section 80 of the Border Security Force Act, 1968. Such proceedings may be started, but for that purpose the judicial records before the Sub-divisional Judicial Magistrate, Bongaon cannot be of any use and moreover the learned Magistrate had no jurisdiction to hand them over as was done. If there be at ell any necessity, the Authority of the Border Security Force or the Security Force Court may use certified copy of the judicial records according to law and if necessary according to law any other necessary document may be called for production after due compliance with the law and procedure and not otherwise.
9. It has been contended from the side of the opposite party, the Inspector General, B. S. F. that in view of Section 475 of the Cr.PC 1973 corresponding to Section 549 Cr.PC 1898, the Sub-divisional Judicial Magistrate is to hand over all relevant papers connected with the case. Accord-Ing to Section 475, when any person is brought before a Magistrate and is charged with an offence for which he is liable to be tried either by a Court to which the Criminal Procedure Code applies or by a Court-martial, such Magistrate shall have regard to the Rules framed by the Central Government consistent with the Army, Navy and the Air Force Acts or any other law relating to the Armed Forces of the Union, for the time being in force, and shall in proper case deliver him together with a statement of the offence of which he is accused, to the Commanding Officer of the unit to which he belongs. Even if we look to this provision, we do not find, any support to the case of the opposite party. We do not think that this section is relevant for our purpose. Had the accused appeared before the learned Magistrate or had been produced before him and had the accused been charged with an offence for which he was liable to be tried, there could have been reason for the learned Magistrate to deliver the accused to the custody of the Military authority together with a statement of the offence with which he is charged. In the present case, as we have stated, the accused did not appear before the learned Magistrate, but only summons was issued. The accused persons were not brought or produced before the Magistrate as according to the police they are absconding. In this case, therefore, the section is not applicable. Moreover, according to this section, a statement of offence is to be delivered to the military authority or the Force authority along with the accused. Unless the accused persons are before the Court, the question of supplying the statement of offence does not arise. Moreover, the statement of offence does not mean the papers of investigation conducted by the police. Statement of the offence may at best be the F. I. R. and the charge-sheet submitted by the police against the accused.
10. In connexion with Section 475 of the Cr.PC 1973 we may refer to the Criminal Courts and B. S. F. Courts (Adjustment of Jurisdiction) Rules, 1969. Rules 3 and 5 may be considered In particular. According to Rule 3 where a person subject to the Border Security Force Act is brought before a Magistrate and charged with an offence for which he is liable to be tried by a Border Security Force Court, such a Magistrate shall not proceed to try such person or to enquire with a view to his commitment for trial by the Court of Session or the High Court for any offence triable by such Court unless (a) he is of opinion for reasons to be recorded that he should so proceed without being moved thereto by the competent authority or (b) he is moved thereto by such authority. In the case before us the authority under the Border Security Force Act has elected to start proceedings In their own forum end the learned Magistrate has accepted the proposition. Rule 5 says that when the competent Authority under the Border Security Force Act elects that the accused should be tried by the Border Security Force Court, the Magistrate shell stay proceedings and if the accused is in his power or in his control shall deliver the accused with the statement prescribed in Sub-section (1) of Section 549 of the Cr, P. C. 1898 corresponding to Section 475 of the new Code to the authority specified in the said Sub-section. Rule 5 has been framed in the same pattern as we find in Section 475 of the new Cr.PC Neither the Border Security Force Rules, nor any Rules in the Criminal Courts and Border Security Force Court (Adjustment of Jurisdiction) Rules, 1969 nor Section 475 of the new Cr.PC can help the opposite party get the judicial records of the Magistrate or the aprs of investigation in possession of the State Police.
11. We have given our best consideration to the facts and circumstances of the case and we are constrained to hold that the learned Magistrate acted beyond jurisdiction and illegally by ordering to hand over the judicial records and the police papers as mentioned in his order dated 22-3-1976 and consequently the order passed on 21-5-1976 is likewise untenable according to law.
12. In the result the application succeeds. The Rule is made absolute. We hereby set aside the orders of the learned Sub-divisional Judicial Magistrate, Bongaon passed on 22-3-1976 and 21-5-1976. The records already delivered to the Inspector General, B. S. F. through his authorised agent have been produced by the opposite party in this case. They shall not be returned to him but should be kept with the judicial case records of the Sub-divisional Judicial Magistrate, Bongaon. The proceedings before the learned Magistrate shall remain stayed until further intimation from the competent authority of the Border Security Force regarding the disposal of the proceedings elected to be instituted within their forum under Section 80 of the B. S. F. Act. The said authority shall inform the learned Magistrate below about the result of the said proceedings in due course. On receipt of such intimation, the Sub-divisional Judicial Magistrate shall pass appropriate orders according to law.
13. Send down the records as quickly as possible.
Monoj Kumar Mukherjee, J.
14. I agree.