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 9

th

. 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 2

nd

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, 2

nd

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

2

nd

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

9

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

10

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

12

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 15

th

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

13

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 10

th

September, 1981 in the presence

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

independent witness, Major Amin Chand Officer recording

14

Summary of Evidence. It appears from the record that second

additional summary of evidence recorded on 10

th

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,

15

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

16

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

17

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.

18

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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