The Supreme Court on Friday agreed to hear in detail a plea seeking probe into alleged torture, rape and extra-judicial killings by the Border Security Force (BSF) personnel in the border areas of West Bengal.
The plea has also challenged the constitutional validity of Section 46 of the BSF Act, which provides the situations in which a BSF personnel can be tried by a Security Force Court, and Section 47 which deals with the condition when a security personnel can be prosecuted by an ordinary criminal court.
Initially, the bench was not inclined to hear the plea filed by Banglar Manabadhikar Suraksha Mancha, a Kolkata-based NGO, saying there were provisions in the BSF Act which provided the circumstances in which an ordinary regular court can try a BSF personnel for criminal offences.
“If an encounter is genuine, then there is nothing to worry as section 46 (of the BSF Act) will come in play. And if it is not a genuine encounter, then the personnel is not considered to be on active duty and can be tried by the ordinary court as described under section 47,” a bench of Chief Justice J S Khehar and Justices D Y Chandrachud and S K Kaul said.
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Bijan Ghosh, appearing for the NGO, said the trial of an errant BSF personnel before the Security Force Court is opaque and hardly leads to conviction and claimed that the two provisions of the Act are unconstitutional.
The apex court in 2012 had issued notice to the Centre on the plea alleging torture, rape and extra-judicial killings by the BSF personnel in the border areas.
The court was hearing the plea of the NGO which alleged that there were more than 200 cases where the BSF personnel had indulged in extra-judicial killings or torture in these areas and the cases were never probed by the state police.
“The present case will show the procedure followed by the West Bengal Police makes a mockery of the rule of law. This petition pertains to the cases of torture or torture followed by extra-judicial executions of more than 200 Indian nationals by the BSF between 2005 and 2011,” the NGO has alleged.
“In over 100 cases, there are eye-witnesses to the BSF taking into custody the person concerned and there are eye-witnesses to the torture in custody of the person concerned, leading to his death,” it has claimed.
The petition alleged that instead of registering an FIR against the BSF personnel, it is registered against the deceased and the case is closed on that basis.
“As a result not a single one, out of more than 200 cases, of torture and killings, set out in this petition, has been investigated by the police,” the petition said, alleging that “thus the BSF operates above the law.”