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Year: 2020 Contact No: 9511502077

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CASE NOTE:
by: Nishtha Jain – BBA.LLB, 2nd-year, Jagannath University, Jaipur

TITLE OF THE CASE: STATE OF J&K Vs. LAKHWINDER KUMAR

BENCH: CHANDRAMAULI Kr. PRASAD AND FM. IBRAHIM KALIFULLA, JJ)

CRIMINAL APPEAL No. 624 OF 2013 WITH No. 625 OF 2013

APPELLANT: STATE OF JAMMU AND KASHMIR

Vs.

RESPONDENT: LAKHWINDER KUMAR AND OTHERS

With

APPELLANT: GHULAM MOHAMMAD SHEIKH

Vs.

RESPONDENT: STATE OF JAMMU AND KASMIR AND OTHERS

Facts of the case:

It this case, a Kashmiri boy lost his life by the bullet fired by Lakhwinder Kumar who was a
Detective of the Border Security Force. RK Birdi (commandant of the 68th Regiment of the
Force) had gone for his medical examination at Composite Hospital, Humhama and while he
returned back along with Lakhwinder to the Force headquarters at Nishat, Srinagar they got
stuck in a traffic jam. This led to a verbal dispute with the boys who were present at Boulevard
road, Brain, Srinagar. At the urging of the RK Birdi, Lakhwinder Kumar fired twice and one of
his rounds hit Kashmiri teenager named Zahid Farooq Sheikh. Zahid died on the spot.
This incident led to the registration of FIR at Nishat police station. There the case was examined
and both the accused persons were arrested. After the investigation, police submit the charge
sheet to the Chief Judicial Magistrate, Srinagar. After this, an application was lodged by the
Force for the trial of the accused persons under the Security Force Act. According to this
application, another application was filed by the Deputy Inspector General of station headquarter
Border Security Force, Srinagar to the Chief Judicial Magistrate, Srinagar. Deputy inspector
written in the application that the criminal case is pending and both the accused persons are in
judicial supervision and he decided to initiate proceedings against the accused in Security Force
Court. He requested to Chief Judicial Magistrate to stay with the proceedings and forward the
accused persons together with their charge sheet and other documents.
The prayer of the Force opposed by the State of J&K and Zahid’s uncle (Ghulam Mohammad
Sheikh). The Chief Judicial Magistrate by his order handed over the accused persons together
with their charge sheet and other documents to the Security Force Court. It was stated in the case
that, this case falls under the 1st exception of the general provision of sec 47 of the Border
Security Force Act and according to this section, an applicant is available with two options. The
first option is, either to try them at Security Force court and other is, let the criminal court of
ordinary jurisdiction ahead with their trial. In accordance with this section, Chief Judicial
Magistrate observed that the court has no other option and they have to hand over the accused
persons along with their charge sheet and other documents to the Security Force Court.

After this hearing, Ghulam Mohammad Sheikh and the State of J&K filed separate applications
before the High Court. There both the appeals were heard together and by agree with the
decision of the Chief Judicial Magistrate court, the High court dismissed the applications. There
the Justice J P Singh had instructed that since Birdi and Kumar were on active duty when the
occourence took place, the Border Security Force Court has the jurisdiction to manage their court
case.
Then Ghulam Mohammad Sheikh has preferred for separate Special Leave Petition for appeal
before the Supreme Court. Leave granted. 
There they heard Mr Gaurav Pachnanda, Senior advocate on the behalf of the appellant, the State
of J&K and Ms Kamini Jaiswal, advocate for the petitioner, Ghulam Mohammad Sheikh, and
they have also heard Mr R.F. Nariman, learned Solicitor – General of India. There, despite of
service, both the respondents (RK Birdi and Lakhwinder Kumar) were not preferred to appear.
Some issues were raised there.

Issues Raised:
1. Whether RK Birdi and Lakhwinder Kumar were in active duty during the time of the
incident?
2. This case should be carried in which court? In Border Security Force Court or in Chief
Judicial Magistrate Court?

Judgment:
In this case, it was held that the crime committed was in relation to a civilian which was triable
by the criminal court and at the time of the incident, the accused persons were not involved in
active duty. It was mentioned that section 2(1)(a) of the Border Security Force Act defines
Active Duty as- any person involved in operations against an enemy or operating at a picket or
engaged on patrol or other guard duty along the borders of India shall come with the definition of
Active Duty. It also includes such duty by a member of the force as active duty declared by the
central government in the official gazette.
In Chief Judicial Magistrate court, magistrate hand over the accused persons to Border Security
Force together with their charge sheet and other documents collected by the police officers
during the time of investigation at Nishat police station.
In the High Court, both the applications were heard together. High Court dismissed the
applications..

In the Supreme Court Gaurav Pachnanda, Ms Kamini Jaiswal and Mr RF Nariman pleaded that
since the two accused Security Force men were not on active duty, no immunity should be
available to them under Border Security Force Act.
In the result, both the appeals are granted and the impeached judgment and the order of Chief
Judicial Magistrate and High Court set aside. The Security Force Court shall ahead with transmit
the record sent to it, to the Chief Judicial Magistrate, who in turn shall proceed in the matter in
accordance with law bearing in mind the observations above stated.

 Legal and social impact:

It is very essential to decide before which court, the proceedings shall be instituted. Jurisdiction
is a very essential concept in understanding courts and the legal system. Proper jurisdiction is
very important. Jurisdiction is a term that refers to whether a court has the authority to hear a
given case. It is the power of a court to hear and determine cases.
In the above case, Supreme Court held that, this case is not of the Security Force Court and
passed the judgment that Security Force Court shall ahead with pass the record sent to it, to the
Chief Judicial Magistrate Court.
Jurisdiction is important as it restricts the authority of the court to hear certain cases. If courts
didn’t exercise proper jurisdiction, it leads to confusing and contradictory results and the parties
will not agree with the decision of the court and they can not get the right justice. This will lead
to reducing the people’s belief from law and order.
If Ghulam Mohammad Sheikh goes to the Border Security Force Court then he did not get
justice because BSF court does not go against RK Birdi and Lakhwinder Kumar. As both the
accused persons, RK Birdi and Lakhwinder Kumar were the members of Security Force. And its
impact falls on the members of the society. They thought that if they did not get justice even
after going to the court than the court would be of no use.
So it is necessary to have proper jurisdiction and right judgments. This authority is
constitutionally based. If proper jurisdiction will not provide to the parties then they have to
suffer with many problems, as in this case, these problems were suffered by Ghulam Mohammad
Sheikh. Decisions before which court the proceedings shall be instituted is very important.

Laws applicable in the above case:

The Border Security Force Act, 1968

The code of criminal procedure, 1973
Article 136 of The Constitution of India 1949
REFERENCES:

https://indiankanoon.org/doc/85628420/