Delhi High Court – Orders
Anil Kumar Upadhaya vs Uoi And Ors on 9 July, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~68
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1024/2010
ANIL KUMAR UPADHAYA .....Petitioner
Through: Mr. Ankur Chhibber, Mr. Karn
Deo Baghel and Mr. Shivam Choudhary,
Advs.
versus
UOI AND ORS .....Respondents
Through: Mr. Bhagwan Swaroop Shukla,
CGSC
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
ORDER
% 09.07.2025
1. We have heard Mr. Ankur Chhibber for the petitioner.
2. Mr. Shukla, learned CGSC for the respondents, has addressed
submissions on certain aspects. However, regarding one significant
argument addressed by Mr. Chhibber, Mr. Shukla seeks a day‟s time
to address the Court.
3. Among the submissions of Mr. Chhibber was the contention
that the charge against the petitioner constitutes a civil offence within
the meaning of Section 2(d) of the BSF Act and, in as much as the
charge was under Section 46 of the BSF Act, it could not have been
tried by a Summary Security Force Code in view of the proscription
W.P.(C) 1024/2010 Page 1 of 3
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 14/07/2025 at 21:47:17
contained in Rule 47 of the BSF Rules, which prohibits a charge under
Section 46(1) from being tried summarily.
4. Mr. Chhibber has also placed reliance in this context from the
decision of learned Single Judge in High Court of Orissa in Kalipada
Acharya v UOI1, from which paras 12, 13, 16 and 17 reads thus:-
“12. Rule 47 of BSF Rules, 1969 speaks about charges not to be
dealt with summarily and stipulates that a charge for an offence
under section 14 or section 15 or clauses (a) and (b) of section 16
or section 17 or clause (a) of. section 18 or clause (a) of section 20
or clause (a) of section 24 or section 46 (other than that for simple
hurt or theft) or a charge for abetment of or an attempt to commit
any of these offences shall not be dealt with summarily. On close
reading of Rule 47 it clearly provides that the charge for an offence
under Section 46 (other, than that of simple hurt or theft) shall not
be dealt with summarily. Meaning thereby, by using the expression
“other than”, it indicates carving out a specific class from the
generic class. Therefore, the offence under Section 354, IPC, under
which a charge has been framed against the petitioner, shall not be
dealt with summarily under the provisions of Rule 47 of the BSF
Rules, 1969. The use of phrase “other than” had come up for
consideration by the apex Court in Gem Granites v CIT, Tamil
Nadu2, and, while considering the provisions contained under
Section 80 HHC and 2(b) of the Income Tax Act, 1961, the apex
Court held as follows:
“The use of phrase other than in clause (b) subsection 2 of
Section 80HHC (as it stood prior to 1991) of the Act
indicates the craving out of a specific class from the generic
class of „minerals and ores‟ which would mean that the
specified processed minerals and ores would have been
covered by the words minerals and ores.”
13. Applying the same analogy to the present context, Section
46, which deals with civil offences subject to provisions of Section
47, only permits to deal with an offence of simple hurt and theft.
Thereby, except simple hurt and theft, no other offence shall be
dealt with summarily under Rule 47. As such, the offence under
Section 354, IPC has been excluded from the purview of the
meaning of Section 46 of civil offences and cannot be triable by a
1
2019 Lab IC 981
2
(2005) 1 SCC 289
W.P.(C) 1024/2010 Page 2 of 3
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 14/07/2025 at 21:47:17
Summary Security Force Court, as classified under Section 64 read
with Section 70 of the BSF Act, 1968. Under Section 80 though
choice has been left with the authority to approach the Criminal
Court or Security Force Court, it only empowers the authority
concerned to decide to institute the case before the Security Force
Court, then to direct that the accused person shall be detained in
Force custody. There is thus no dispute, with regard to choice
between the Criminal Court and Security Force Court, as
prescribed under Section 80 of the BSF Act, 1 g68, but when a
specific provision has been made under Section 46 of the Act with
regard to civil offences and read with Rule 47 it is also mentioned
which offences are to be charged summarily, the offence
committed under Section 354, IPC cannot be included within the
meaning of Section 46 of civil offences so as to be tried summarily
by Summary Security Force Court.
*****
16. In view of the aforesaid facts and circumstances, this Court
is of the considered view that the Summary Security Force Court is
not competent and lacks jurisdiction to try civil offences under
Section 46 of the BSF Act, 1968, except simple hurt or theft.
Thereby, the punishment so imposed on the petitioner cannot
sustain in the eye of law.
17. Answering Issue no. (ii) as it reveals from Annexure-7, the
appellate authority, without assigning any reason, rejected the
appeal preferred by the petitioner being devoid of merit. This
clearly shows non-application of mind by the appellate authority,
while passing the impugned order dated 14.09.2001 in Annexure-
7.”
5. To hear Mr. Shukla on this aspect, re-notify on 10 July 2025 for
disposal as part-heard.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
JULY 9, 2025/an
W.P.(C) 1024/2010 Page 3 of 3
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 14/07/2025 at 21:47:17