Jammu & Kashmir and Ladakh High Court: In a matter revolving around whether departmental proceedings could be pursued simultaneously with a pending criminal trial based on the same allegations, the Division Bench of Sanjeev Kumar* and Sanjay Parihar, JJ., held that there was no statutory bar to allow both proceedings to continue side by side, and that what has been ordered was only a Court of Inquiry under Rule 173 of the Border Security Force Rules, 1969 (‘BSF Rules’), which was a fact-finding exercise and not a disciplinary proceeding.
Background:
A complaint was lodged by a lady ASI of the Border Security Force against the accused who at the relevant time was posted as the Assistant Commandant STC Airport, leading to registration of an FIR under Section 376 of the Penal Code, 1860 (‘IPC’). Following the investigation, a charge-sheet was filed, and the accused was granted bail, though charges were framed, and the criminal trial is ongoing. In parallel, the respondents, exercising their powers under Rule 40A(1) of BSF Rules, placed the accused under suspension. They also ordered a Court of Inquiry to enquire into the allegations. The accused filed a writ petition challenging the Court of Inquiry ordered by the respondents under Rule 173 of the BSF Rules on the ground that in the face of criminal trial pending against him, parallel disciplinary proceedings on the self-same charges could not be commenced. He also challenged his suspension order on the ground that there was an unreasonable delay in completing the departmental proceedings.
The Writ Court concluded that the departmental proceedings and the proceedings in the criminal case could proceed simultaneously as there was no legal or statutory bar for pursuing both the proceedings simultaneously. The Court noted that it was not a case where complicated questions of fact and law were required to be determined in the departmental proceedings and since the accused had in his various representations made before the respondents rendered his explanation to the allegations levelled against him, there was no chance of him being prejudiced in the matter of taking an appropriate defence before the Trial Court. The Writ Court dismissed the writ petition by the impugned judgment, finding no merit in the petition. The intra-court appeal challenging the suspension order was also dismissed vide judgment dated 14-11-2025.
The accused contended that the Writ Court failed to appreciate that permitting the departmental inquiry and the criminal proceedings to proceed simultaneously would put him to serious prejudice in the matter of taking a defence before the criminal court and further argued that the enquiry officer conducting disciplinary proceedings would be required to decide the complicated questions of law and facts which the disciplinary authority would have no expertise to decide.
Analysis and Decision:
The Court did not find it a case where respondents were pursuing criminal prosecution and the disciplinary proceedings simultaneously. The criminal case against the accused under Section 376 IPC was pending trial before the competent court of criminal jurisdiction, where charges are already framed, and the trial is proceeding further. The Court observed that the respondents had not yet initiated any disciplinary proceedings, rather what they sought to be initiated in terms of Rule 173 was not the departmental proceeding, but only a Court of Inquiry ordered to investigate the allegations levelled by the lady officer constituting misconduct.
The Court opined that the Court of Inquiry under the BSF Rules is only a fact-finding inquiry ordered to collect evidence to facilitate the BSF authorities in deciding its future course of action. The Court reiterated that the findings returned by the Court of Inquiry shall be in the nature of a preliminary report which shall facilitate the BSF authorities to decide as to whether the disciplinary proceedings against the delinquent are required to be initiated or not. Thus, the Court observed that ordering the Court of Inquiry or even asking the accused to appear and record his statement would not prejudice him in any manner.
The Court noted that the allegations made by the lady officer against the accused, if accepted on their face value, did prima facie constitute misconduct and therefore a disciplinary matter. The Court opined that the Court of Inquiry would afford an opportunity for the accused to put forth his explanation and persuade the authorities not to go for any disciplinary proceedings.
The Court noted that the BSF authorities were yet to take a decision regarding initiation disciplinary proceeding against the accused, and thus, the argument that the criminal proceedings and the departmental proceedings could not proceed simultaneously, was premature. The Court opined that the accused’s apprehension that he might be exposed to disclosing his defence during the Court of Inquiry and that might prejudice his defence before the criminal court, was also without any substance and could not be accepted. The accused could not be forced to make any self-incriminating statement and had the option to even remain silent during the Court of Inquiry.
The Court observed that though the Writ Court treated the Court of Inquiry as initiation of departmental proceedings and opined that, in the circumstances, there was no statutory or other bar to conduct departmental proceedings alongside the criminal trial, the respondents are yet to decide on initiating disciplinary proceedings; hence, the writ petition was premature. Regarding the challenge to the suspension order, the Court observed that the accused was suspended upon registration of FIR in a serious offence of rape but the departmental inquiry in the matter was not yet ordered, and the pendency of non-existent departmental inquiry or its procrastination without any reason could not be urged as a ground to seek revocation of the suspension order.
Consequently, the Court held that the judgment passed by the Writ Court was correct, both on facts and law and dismissed both the intra-court appeals.
[Akhand Prakash Shahi v. Union of India, LPA No. 275 of 2025, decided on 11-12-2025]
*Judgment authored by: Justice Sanjeev Kumar
Advocates who appeared in this case:
For the Accused: Danish Majid Dar with Mehjabeena, Advocates.
For the Respondents: Nazir Ahmad, Sehar Mufti vice Viqas Malik, Advocates.
Buy Penal Code, 1860 HERE
