Srinagar, April 29 (KNS): The Jammu and Kashmir and Ladakh High Court declared Rule 129 of the Border Security Force Rules, 1969 Ultra Vires and quashed the partial proceedings of the General Security Force Court (GSFC).
After hearing the advocate Mushtaq Ahmad Dar who represented the peittioner and counsel for respondent, Justice Sanjeev Kumar said that Rule 129 is ultra vires to Fundamental Rights as guaranteed by the Constitution.
“Challenge by the petitioner to Rule 129 of the Border Security Force Rules, 1969 succeeds and the impugned Rule is declared Ultra Vires to Part-III of the Constitution (Fundamental Rights), particularly Article 21 (Right to Life) of the Constitution,” the Court said.
Court added that the proceedings against the petitioner concluded by the GSFC are quashed from the stage of leading defence evidence.
“The matter shall be taken up by the General Security Force Court from the stage of conclusion of the prosecution evidence. The petitioner shall be provided certified copies of the proceedings as also the copies of the statements of prosecution witnesses recorded during trial against or in favour of the petitioner before asking the petitioner to enter his defence,” the Court said.
The petitioner has assailed the order of GSFC, whereby the application moved by the petitioner for issuance of certified copies of the proceedings including statement of prosecution witnesses had been rejected by relying upon Rule 129 of the Border Security Force Rules, 1969.
The petitioner challenged the vires of Rule 129 of the Rules on the ground that it infringes fundamental right of fair trial guaranteed to the petitioner under the Constitution.
The Court observed that a criminal trial which may result in depriving a person of not only of his personal liberty but also his life, has to be fair, unbiased and without any prejudice for or against the accused.
“I do not find that Rule 129 of the Rules is in any manner aimed to ensure proper discharge of duties by the members of the Border Security Force and maintenance of discipline among them and, therefore, could be saved on the strength of Article 33 of the Constitution of India,” the Court added.
Court further observed that Rule 129 of the Rules, as it is, does take away vital fair trial right of an accused, therefore, would fall foul of Article 21 of the Constitution of India (KNS).