Bachan Singh vs Union Of India & Ors

Bachan Singh ..... Appellant

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

JUDGMENT

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 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.

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.

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 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 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 Corps.

Place: Field Date:15 December, 1981.

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.

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 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 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 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 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 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.

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 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 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 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.

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 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 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 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 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, 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.

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

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

New Delhi, July 10, 2008.