Bachan Singh Vs.
Union of India & Ors.  INSC 1075 (10 July 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 3110 OF 2004 Bachan
Singh ..... Appellant Versus Union of India & Ors. .....
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 2
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.
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.
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.
3 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
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 4 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
Place: Field Date:15
No.3973649A Sepoy The
details of officers mentioned Bachan Singh 2nd below will assemble at Field on
Batallion The Dogra the Sixteenth day of December Regiment 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.
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 5 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
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 6 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 nd 2
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
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 7 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.
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 8 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."
9 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 10 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
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 11 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.
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 12 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
13 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
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 14 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 15
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
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.
examining the record of the court-martial, we find that the learned Single
Judge, with respect to him, 16 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 17 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 18 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.
19 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.
(C. K. Thakker)
(Lokeshwar Singh Panta)
Delhi, July 10, 2008.