REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 3110 OF 2004

Bachan Singh                                               .....        Appellant

Versus

Union of India & Ors.                           ..... Respondents  

J U D G M E N T

Lokeshwar Singh Panta, J.

Bachan Singh - appellant is aggrieved by the judgment

and  order  dated  February  5,  2002  passed  by  the  Division

Bench of the High Court of Jammu and Kashmir at Jammu

allowing the LPA (SW) No.  284/97 filed  by the respondents

herein against the judgment dated November 20, 1996 of the

learned Single Judge of the High Court whereby the learned

Single  Judge  allowed  SWP  No.  14-A/1984  filed  by  the

appellant and quashed the General Court-Martial held against

him including confirmation of sentence passed upon him by

the General Court-Martial and the appellant is relegated back

to the position he had on the date of passing of the order with

all the benefits under the Rules.   

A  General  Court-Martial  (GCM)  under  the  Army  Act,

1950  (for  short  ‘the  Act’)  was  convened  by  the  competent

authority on January 4, 1982 under Section 109 of the Act to

try  the  appellant  holding  the  rank  of  Sepoy  in  Second

Batallion, the Dogra Regiment in the Army.   

The allegations against the appellant for which he was

suspected to be tried by GCM were:-

“No.3973649A  Sep  Bachan  Singh  of 2DOGRA is resident of village Paragwal, Tehsil Akhnoor,  District  Jammu  (J&K)  S/o  Shri Dharam Singh  and  step  son  of  Smt.  Gyano Devi, second wife of Shri Dharam Singh.

Sep.  Bachan  Singh  studied  in  Govt. Lower High School, Paragwal upto the 9th.  He was  enrolled  in  the  Army  on  11  Oct.  75  to Meerut in the Dogra Regt.   He is married to Smt.  Veena  Kumari  D/o  Shri  Durga  Singh resident of Village Chargarwar, Tehsil Jammu, District  Jammu  (J&K).   Sep  Bachan  Singh proceeded on annual leave w.e.f. 16 Jan 80 to 15  Mar  80  to  his  home  station  village Paragwal, Tehsil Akhnoor.

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Shri  Bachan  Singh  S/o  Shri  Waryam Singh  resident  of  Village  Najwal,  Tehsil Akhnoor, District Jammu (J&K) which is about 3 kms. from village Paragwal is related to Sep Bachan  Singh.   Sep  Bachan  Singh’s  step mother Smt. Gyano Devi is the younger sister of Shri Rattan Singh’s mother Smt. Vidya Devi.

During the month of Feb 80 Smt. Vidya Devi  had  gone  over  to  Sep  Bachan  Singh’s house and invited him and his wife over to her place.  On 12 Mar 80 Sep Bachan Singh along with his wife  Smt. Veena Devi  and his three months  old  son  went  to  Smt.  Vidya  Devi’s house.

Shri Rattan Singh and Sep Bachan Singh consumed country liquor that night.  At about 2130  hours  Shri  Rattan  Singh  and  Sep Bachan Singh went out for a walk and while waling  crossed  the  border  into  PAK territory where they were met by two PAK FIU staff at Post DERA.  PAK if he was in possession of his identity  card.   Sep  Bachan  Singh  gave  his name as  Narinder  Singh son of  Shri  Surjeet Singh,  his  unit  as  16  J&K  LI  located  at MIZORAM.  PAK FIU staff gave Rs. 200/- Sep Bachan  Singh  when  he  reached  his  home. The next day, 13 Mar 80, Sep Bachan Singh with his family left for his home.

On 15 Mar 80 Sep Bachan Singh left his village  Paragwal  to  rejoin  his  unit.   At  1830 hours 15 Mar 80, Sep Bachan Singh rejoined his unit, 2 DOGRA.

On 04 Jul  80 Sep Bachan Singh under an escort proceeded to 168 ASC Bn on temp duty  for  interrogation  at  the  Joint

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Interrogation   Centre  South  C/o  Det  4/290 Liaison Unit C/o 56 APO and returned back to the unit on 10 Aug 80.”

The order convening the Court-Martial reads as under:-

“FORM OF ORDER FOR THE ASSEMBLY OF A           GENERAL COURT MARTIAL UNDER ARMY ACT

Orders  by  IC-5095P  Major  General  K. Mahipat  Sinhji  Officiating  General  Officer Commanding 16 Corps.

Place: Field      Date:15  December, 1981.

No.3973649A  Sepoy Bachan  Singh  2nd Batallion  The  Dogra Regiment

The details of officers mentioned below  will  assemble  at  Field  on the  Sixteenth  day  of  December 1981 for the purpose of trying by a  General  Court  Martial  the accused  person  named  in  the margin (and such other person or persons as may be brought before them.)  

The Senior Officer to sit as Presiding Officer.

MEMBERS IC-7757L  Brig. Talwar Harjeet – Cdr 191 Inf Bde IC-12716L Lt. Col. Borkar, Mukand Narasinha –                                          OC 1890 Indep Lt Bty. IC-28737L Maj Vohra, Satyendra Mohan – 2 SIKH IC-25247M Capt Jagmal Singh – 37 Med Regt IC-34139K Capt Ranjit Barkakoty – 81 Armd Regt.

WAITING MEMBERS

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IC-13474A Lt Col. Brar, Surjit Singh – OC 28 EME Bn IC-24826M Gill Mohanjit Singh – 8 CAV IC-35033K Capt Hari Mohan Joshi – 374 Sig Regt JUDGE ADVOCATE IC-36504Y  Maj  Deosthale Jayant Kumar – DAJAG                                               HQ Northern Command

    is appointed Judge Advocate PROSECUTOR IC-29015L  Maj Valentine, Joseph Melvin – 9 MADRAS

appointed prosecutor

The  accused  will  be  warned,  and all  witnesses  duly required to attend. The  proceedings  (of  which  only  three  copies  are required) will be forwarded to Headquarters, 16 Corps, through DJAG Headquarters Northern Command.

Signed this fifteenth day of December, 1981.

Sd/- (R.K. Kashyap)

            Lieutnant Colonel        Assistant Ad-jutant General for    Officiating General Officer Commanding                     16 Corps”   

The charge sheet reads as under:-

“CHARGE SHEET The  accused  No.  3973649A  Sep  Bachan  Singh,  2nd

Batallion  The Dogra Regiment  is charged with:-

Army Act    AN ACT PREJUDICIAL TO GOOD ORDER AND  Section 63  MILITARY DISCIPLINE

                in that he, at  Village  Najwal  (J&K)  on  12  Mar  80,  went across the International Border to Post ‘DERA’ in

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Pakistan, alongwith Shri Rattan Singh S/o Shri Waryam Singh of the said village.

                   Sd/- Station: Field                        (Balwant Singh) Date: 12 Dec 81                                 Major                                                 Officiating Commanding Officer                                              2nd Batallion The Dogra Regiment

        To be tried by a General Court Martial

Place : Field                                                    Sd/- Date: 12 Dec 81                           (R.K. Kashyap)              Lieutnant Colonel        Assistant Ad-jutant General for        Officiating General Officer Commanding                           16 Corps”

Section 63 of the Act reads as under:-

“Violation of good order and discipline:- Any person subject to this Act who is guilty of any act or omission which, though not specified in  this  Act,  is  prejudicial  to  good  order  and military discipline  shall, on conviction by court- martial,  be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”   

After  conclusion of  the  proceedings,  the  appellant  was

held  guilty  of  the  charge  and  was  sentenced  to  suffer  two

years imprisonment and also dismissed from service by order

dated January 22, 1982 of the GCM.  The sentence passed

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against  the  appellant  was  confirmed  by  the  confirming

authority as required under the Act.  The appellant challenged

his conviction and sentence in SWP No. 14-A/1984 filed by

him in  the  High  Court  of  Jammu and Kashmir  at  Jammu

which  as  noted  above,  was  allowed  by  the  learned  Single

Judge by order dated November 20, 1996.  The ground which

appealed  to  the  learned  Single  Judge  in  setting  aside  the

Court-Martial and subsequent confirmation of sentence may

be stated from the  relevant paragraphs of the judgment of the

learned Single Judge which are as under:-

“I  have  gone  through the  record  that  was produced  before  me  today  and  also  leafed through the statements  made by the witnesses before  the  General  Court  Martial.   Not  even  a single  witness has deposed that he had seen or had  any  knowledge  of  the  petitioner  having crossed ever the International Border.  There is absolutely no evidence.

Learned  counsel  appearing  for  the respondents  has  vehemently  relied  upon  the statement made by the accused/petitioner before the summary of evidence.  According to him this statement  was  made  voluntarily  and  can  be safely  acted  upon.   I  decline  to  agree  with  the learned  counsel  for  the  reason,  because, statements  made  before  summary  of  evidence cannot be relied upon in the first instance.  Even then I  have  gone  through the statement  of  the petitioner/accused  before  the  general  court

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martial.   In  that  statement,  the  petitioner  has vehemently  stated  that  the  earlier  statement made  by  him during  the  summary  of  evidence was  as  a  result  of  force  exercised  upon  him during interrogation.  He has totally resiled from this statement, did not own the same.  I  am  tempted  to  refer  to  Article  20  of  the Constitution read with Section 27 of the Evidence Act.   The  statement  tendered  by  the accused/petitioner  before  the  summary  of evidence  has  been  destroyed  and  another statement was later recorded.  The general court martial  has  taken  note  of  this  statement  and itself returned a finding in the following manner:-

“The  court  decided  to  uphold  the contention of defence and not to admit the above document in evidence.” General  Court  Martial  seems  to  have sufficiently been conscious of the loop- holes  which  the  statement  had  and  it was  because  of  these  loop-holes  that this  confessional  statement  was  not acted upon.  Suffice to say that there is no  evidence  linking  the petitioner/accused  with  the  allegation under which he stands charged. On  the  strength  of  the  foregoing reasoning, I  find the proceedings to be inconsistent  with  the  provision  of  the Army Act  and the finding of  the  court martial was not in accordance with the law.   Therefore,  the  same  is  quashed and the petitioner is  relegated back to the  position  he  had  on  the  date  of passing of the order.  He will be entitled to all the benefits under rules.”  

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Aggrieved by the said order of the learned Single Judge of

the High Court, the Union of India and the officials concerned

of  the  Army  have  preferred  Letters  Patent  Appeal  (SW)  No.

284/94.  By order dated February 5, 2002, the Division Bench

of the High Court allowed the appeal and set aside the order

passed by the learned Single Judge in SWP No. 14-A/1994.

Hence, the appellant has preferred this appeal.

Mr.  D.K. Garg, learned counsel  appearing on behalf  of

the appellant in support of the judgment of the learned Single

Judge,  contended that the learned Single  Judge  has rightly

quashed the GCM primarily on a ground that the GCM had

been convened in violation of the mandate of Section 109 of

the Act.  According to the learned counsel, the GCM was not

convened  by  the  authority  competent  to  do  so  in  terms  of

Section 109.  It was urged that there was no direct evidence

produced on record of the GCM by the respondents to prove

the guilt of the appellant for offence under Section 63 of the

Act and in the absence of any evidence, the order of conviction

and sentence imposed upon the appellant by the GCM  was

invalid, unsustainable and in violation of natural justice and

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in  such  circumstances  the  judgment  of  the  learned  Single

Judge setting aside the order of the GCM could not have been

interfered with by the Division Bench in Letters Patent Appeal.

It  was, therefore,  submitted that the impugned order of the

Division Bench of the High Court deserves to be set aside by

restoring the order of the learned Single Judge.

Mr.  Parag  P.  Tripathi,  learned  Additional  Solicitor

General for the respondents on the other hand, supported the

order  passed by the  Division  Bench of  the High Court  and

submitted  that  the  High  Court  was  right  in  allowing  the

Letters Patent Appeal and in making the order.  He submitted

that the learned Single Judge  has exceeded  his jurisdiction

under Article 226 of the Constitution of India by setting aside

the  Court-Martial  and  subsequent  order  of  conviction  and

sentence  recorded against  the appellant which was later on

confirmed by the competent authority as envisaged under the

Act and the Rules for violation of good order and discipline in

terms  of  Section  63  of  the  Act.   According  to  the  learned

counsel, this Court in exercise of its power under Article 136

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of the Constitution may ordinarily not interfere with the order

of the Division Bench.

Having  heard  the  learned  counsel  and  having  gone

through  the  material  on  record  and  also  the  relevant

provisions  of  the  Army  Act  and  Rules,  in  our  opinion,  the

Division Bench of the High Court was justified in setting aside

the order of the learned Single Judge who was not justified in

setting aside the well-reasoned order of the GCM which was

based upon proper and fair appreciation of the evidence of the

material  witnesses,  statement  made  voluntarily  by  the

appellant before it, other material and subsequent order of the

confirming authority.

The  appellant’s  contention  that  the  convening  of  the

GCM in this case is not valid because under Section 109 of

the Act, the GCM can be convened only by any officer who has

been appointed by a specific warrant in that connection by the

Chief of the Army Staff must be rejected.  Under Section 109

of  the  Army  Act,  a  GCM  may  be  convened  by  the  Central

Government or the Chief of the Army Staff or by any officer

empowered in this behalf by warrant of the Chief of the Army

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Staff.   There  is  nothing  in  Section  109  which  requires  the

Chief  of  the Army Staff to issue a warrant for each specific

case.  A general warrant for convening GCM under the Act has

been issued by the Chief of the Army Staff under Section 109

whereby all  the officers not being under the rank of a Field

Officer, commanding the 16 Corps are empowered to convene

GCM for the trial of any person under his command who is

subject to Military Law authorized by A-1 warrant duly signed

by the Chief of the Army Staff was produced before the High

Court which has been noticed and extracted in the judgment

by the Division Bench.  The warrant of authorization reads as

under:-

“Warrant  of  convening  of  General  Court Martial under the Army Act. To, The  OFICER  NOT  BEING  UNDER  THE  RANK OF A FIELD OFFICER, COMMANDING THE XVI CORPS

In pursuance of the provisions of the Army Act, 1950 (XLVI of 1950).  I do hereby empower you, or the officer on whom your command may devolve  during  your  absence,  not  under  the rank  of  Field  Officer,  from  time  to  time  as occasion  may  require,  to  convene  General Courts-Martial for the trial, in accordance with the said Act and the Rules made thereunder, of any person under your command who is subject

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to military law and is charged with any offence mentioned in the said Act, and is liable  to be tried by a General Court-Martial. And for doing so, this shall be, as well to you as to all others whom it may concern, a sufficient warrant. Given  under  my  hand  at  NEW  DELHI  this twenty fourth day of JUNE 1972.

Sd/- General    CHIEF OF THE ARMY STAFF.”

In  the  present  case,  the  above  said  order  dated  15th

December,  1981 convening the assembly of GCM under the

Act  passed  by  IC–5095P  Major  General  K.  Mahipat  Sinhji,

Officiating  General  Officer  Commanding  16  Corps  clearly

proves  that  the  GCM  has  been  convened  by  a  competent

authority in accordance with the provisions of Section 109 of

the Army Act.  The members of the GCM were selected and

appointed in compliance to Section 113 of the Act.  Thus, the

respondents have fully complied with the requirement of law.

The record of the Court-Martial  produced before us by

the learned Additional Solicitor General would reveal that the

GCM  was  held  against  the  appellant  on  different  dates  at

Udhampur.  The record would disclose that the appellant had

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made  voluntarily  written  confessional  statement  before  the

GCM  admitting  the  allegations  levelled  against  him  in  the

charge sheet.  On bare perusal of the GCM, it becomes quite

clear that the proceedings were recorded by the GCM in the

presence  of  the  appellant,  his  defending  officer  and  other

witnesses.  The statements of Major S.K. Sareen, Smt. Vidya

Devi, Veena Kumari, Tara Chand, Rattan Singh, Prabhu Ram,

Major S.B. Ambel, Pritam Singh, Capt. A.K. Chowdary, Major

Amin Chand Bhattee were recorded by the GCM on behalf of

the prosecution in support of the charge in the presence of the

appellant.   The  appellant  was  afforded  full  opportunity  of

cross examining the witnesses but he did not avail of the said

opportunity.   It  appears  from the record that despite  giving

warning to the appellant to the effect that he was not obliged

to  make  any  confessional  statement,  the  appellant  made

written  confessional  statement  on  October,  22,  1980.   The

appellant  made  additional  statement  in  addition  to  first

summary of evidence on 10th September, 1981 in the presence

of  witnesses  namely  IC-25616Y  Major  S.L.  Gautam

independent  witness,  Major  Amin  Chand  Officer  recording

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Summary of Evidence.  It appears from the record that second

additional summary of evidence recorded on 10th September,

1981 was in compliance with Army Rules 23(1), 23(2), 23(3),

23(4) and 23(6) in which the appellant did confess his guilt.

Chapter  XII  of  the  Act  deals  with  Confirmation  and

Revision.  Section 153 provides that no finding or sentence of

a  general, district or summary general, court-martial shall be

valid except so far as it may be confirmed as provided by this

Act.  Section 154 prescribes that the findings and sentences of

general  courts-martial  may  be  confirmed  by  the  Central

Government,  or  by any officer  empowered in  this  behalf  by

warrant  of  the  Central  Government.   The  record  of  the

respondents shown to us would establish that the findings of

conviction and sentences imposed upon the appellant by the

GCM were confirmed by the competent authority in terms of

Section 154 of the Act.  We find the proceedings of the GCM to

be quite immaculate where trial was fair and every possible

opportunity was afforded to the appellant to defend his case.

After ourselves examining the record of the court-martial, we

find  that  the  learned  Single  Judge,  with  respect  to  him,

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completely  misdirected  himself  in  coming  to  the  conclusion

that the proceedings held by GCM were inconsistent with the

provisions of the Army Act and the finding of the Court-Martial

was not in accordance with the law.  The appellant was given

opportunity  to  inspect  whatever  record  he  wanted,  his  wife

and other  witnesses  were examined in his presence  and he

had  participated  in  the  court-martial  proceedings  without

raising any objection.  The GCM took into consideration the

relevant oral evidence of the material witnesses and statement

voluntarily  made  by  the  appellant  and  additional  summary

confessional statement duly signed by him in the presence of

Major  S.L.  Gautam and  Major  Amin  Chand  who  have  also

appended  their  signatures  thereon  and  other  materials

produced before  it,  found the appellant guilty of  the charge

and convicted and sentenced him accordingly.

The appellant filed post confirmation petition against the

order of the GCM under Section 164 of the Act, a copy whereof

has  been  shown  to  us  by  the  learned  counsel  for  the

appellant.  We are informed by the learned Additional Solicitor

General  that  the  said  petition  has  been  rejected  by  the

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competent authority and findings and sentences of the GCM

recorded  against  the  appellant  were  confirmed  and  the

appellant  was,  accordingly,  informed  about  the  decision  so

taken  by  the  authority.   Indisputably,  the  appellant  has

neither challenged the said order of the competent authority

passed under the Statute before  the High Court in the writ

petition nor was the order was brought to the notice of the

Division Bench by the appellant at the time of hearing and

deciding the Letters Patent Appeal.   

Having  examined  the  above  said  order  of  the  learned

Single  Judge,  we  find  that  the  findings  and  reasonings

recorded therein are not based upon proper assessment of the

facts  of  the  case  and  it  was  not  necessary  for  the  learned

Single  Judge  to  have  minutely  examined  the  record  of  the

GCM as if he was sitting in appeal.  We find that on merits,

the learned Single Judge has not clearly and plainly said that

there was no case against the appellant to hold him guilty of

the  offence  charged.   It  is  well-known  and  well-settled

proposition of law that in proceedings under Article 226 of the

Constitution the High Court cannot sit as a Court of Appeal

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over the findings recorded by the GCM.  Judicial Review under

Article  226  of  the  Constitution  is  not  directed  against  the

decision  but  is  confined  to  the  decision-making  process.

Judicial review is not an appeal but a review of the manner in

which the decision is made.  The court sits in judgment only

on the correctness of the decision making process and not on

the  correctness  of  the  decision  itself.   Thus,  examining  the

case of the appellant from all angles we are satisfied that there

was no irregularity or illegality in the GCM which was fairly

and properly  conducted by most  qualified  members  holding

very high ranks in Army hierarchy.  

The Division Bench of the High Court in the impugned

judgment  while  setting  aside  the  judgment  of  the  learned

Single  Judge  has  relied  upon the  decision  of  this  Court  in

Union of India & Ors.  v. IC 14827 Major A. Hussain [AIR

1998 SC 577] and observed that the High Court cannot re-

appreciate  the  evidence  recorded  by  the  authorities  and

substitute by its own finding replacing the conclusion reached

by the competent authority.

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Though the Division Bench of  the High Court  has not

given  detailed  reason  in  its  judgment  for  setting  aside  the

judgment of the learned Single Judge, yet in substance we are

of the opinion that the said judgment on merit warrants no

interference  inasmuch  as  no  illegality,  infirmity  or  error  of

jurisdiction could be shown before us by the appellant.

In our view, there is no merit in the contentions taken by

the appellant.   

For the reasons above stated, there is no merit in this

appeal and it is, therefore, dismissed.  There will be no order

as to costs.   

........................................J.                                                 (C. K. Thakker)

........................................J.                                                 (Lokeshwar Singh Panta)

New Delhi, July 10, 2008.

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