[2008] 10 S.C.R. 668

BACHAN SINGH

UNION OF INDIA & ORS. (Civil Appeal No. 3110 of 2004)

JULY 10, 2008

!'" '

[C.K. THAKKER AND LOKESHWAR SINGH PANTA,

JJ.]

. -I

Army Act, 1950 - ss. 63 and 109 - Court On a/legation c of crossing international border- Delinquent official held guilty and sentenced to two years imprisonment - Also dismissed from service - Sentence confirmed - Single Judge of High Court under writ jurisdiction set aside the court martial - Division Bench of High Court set aside order of Single Judge -

0 On appeal, held: There was no illegality or irregularity in the General Court Martial - It was fairly and properly conducted in r accordance with law by competent authority - Single Judge of High Court was not right in minutely examining the records as if sitting in appeal - Judicial review under Article 226 is not E directed against the decision, but the decision making process - Constitution of India, 1950 - Article 226 - Army Rules, 1954rr. 23 (1), (2), (3), (4) and 6.

A General Court-Martial, under the Army Act, 1950 was convened by the competent authority u/s 109 of the Act to F try the appellant u/s 63 of the Act. The allegation against the appellant was that he had gone across the International ""' Border. After conclusion of the proceedings, appellant was held guilty of the charge and was sentenced to two years imprisonment and was also dismissed from service. The G sentence was confirmed by the Confirming Authority.

Single Judge of High Court in writ petition, set aside the Court-Martial and subsequent confirmation of sentence.

In Letters Patent Appeal, Division Bench of High Court, set " aside the order of Single Judge. Hence the present appeal.

H 668

Dismissing the appeal, the Court

HELD: 1.1 Division Bench of the High Court was justified in setting aside the order of the Single Judge who was

not justified in setting aside the well-reasoned order of the General Court Martial (GCM) which was based upon proper and fair appreciation of the evidence of the material wit- B nesses, statement made voluntarily by the appellant before it, other material and subsequent order of the confirming authority. [678-F, G]

1.2. Single Judge of High Court completely misdic rected 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 proceedings of the GCM to be quite immaculate where trial was fair and D every possible opportunity was afforded to the appellant to defend his case. [681-D, E, F]

1.3. The appellant was afforded full opportunity of cross examining the witnesses but ne did not avail of the said opportunity. Despite giving warning to the appellant E to the effect that he was not obliged to make any confessional statement, the appellant made written confessional statement. The appellant made additional statement in addition to first summary of evidence in the presence of witnesses. It appears from the record that second addi- F tional summary of evidence 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. [680-G, H 681-A,8]

1.4. Under Section 109 of the Army Act, a GCM may be convened by the Central Government or the Chief of G the Army Staff or by any officer empowered in this behalf by warrant of the Chief o.f the Army 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 j~ ....

1 A 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 B signed by the Chief of the Army Staff. In the present case, 'i' - the order convening the assembly of GCM under the Act 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 s_elected c and appointed in compliance to Section 113 of the Act.

Thus, the respondents bave fully complied with the requirement of law. [679-A,8, C] [680-8, C, D]

2. The findings and reasonings recorded by the Single Judge of High Court are not based upon proper r

D assessment of the facts of the case and it was not necesr sary for the Single Judge to have minutely examined the I> record of the GCM as if he was sitting in appeal. In proceedings under Article 226 of the Constitution, the High Court cannot sit as a Court of appeal over the findings E 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

reviw is not an appeal but a review of the manner in which the decision is made. The court sits in judgment only on F the correctness of the decision making process and not ". on the correctness of the decision itself. Thus, 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. [682-D, E, F, G]

G Union of India and Ors. v. IC 14827 Major A. Hussain AIR 1998 SC 577 - referred to.

I- CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3110 of 2004

H From the Final Judgment and Order dated 5.2.2002 of ~· ,__

~ I

the High Court of Jammu and Kashmir at Jammu in LP.A. No.

A 284 of 1997

D.K. Garg, B.S, Billowaria and P.V. Yogeswaran for the ASppellant.

Parag P. Tripathi, ASG, Rekha Pandey, Varun Sarin (for B B.V. Balaram Das) and B. Krishna Prasad for the Respondents.

The Judgment of the Court was delivered by

LOKESHWAR SINGH PANTA, J. 1. Bachan Singh - appellant is aggrieved by the judgment and order dated February c 5, 2002 passed by the Division Bench of the High Court of Jam mu 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- D 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 pass- . ing of the order with all the benefits under the Rules.

2. 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.

3. 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) G 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 H

A Smt. Veena Kumari Dlo 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. ·

Shri Bachan Singh Slo Shri Waryam Singh resident of Village Najwal, Tehsil Akhnoor, District Jam mu (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 RC)ttan 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. 2001- Sep Bachan Singh when he reached his home. The next day, 13 Mar 80, Sep Bachan Singh with his family left fo~ 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 atthe Joint Interrogation Centre South Clo. Det 4/290

Liaison Unit Clo 56 APO and returned back to the un!t on

[LOKESHWAR SINGH PANTA, J.]

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 men-

Bachan Singh 2nd tioned below will assemble

Batallion The Dogra at Field on the Sixteenth day

Regiment 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-'r757L Brig. Talwar Harjeet - Cdr 191 Inf Bde IC-12716L Lt. Col. Borkar, Mukand Narasinha -

OC 1890 lndep 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

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. Kash yap) 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 Pakistan, alongwith Shri Rattan Singh S/o Shri Waryam Singh of the said G village.

Station: Field

Sd/-

(Balwant Singh)

Date: 12 Dec 81 Major

' "

Officiating Commanding Officer A

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 C

16 Corps"

Section 63 of the Act reads as under:-

"Violation of good order and discipline:- Any person 0 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 E as is in this Act mentioned."

4. 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 against F 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 Kashrnirat Jammu which as noted above, was allowed by the learned Sinle Judge by order dated No- G vember 20, 1996. The ground which appealed to the learned Single Judge in setting aside the Court-Martial and subsequept confirmation of sentence may be stated from the relevant paragraphs of the judgment of the learned Single Judge which are as under:-

' '

A "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

B 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 c 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 martial. In D that statement, the petitioner has vehemently stated that the earlier statement made by him during the summary of evidencewas as a result of force exercised upon him during interrogation. He has totally resiled from this statement, did not own the same.

E 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 F 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." j

G 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

H allegation under which he stands charged.

- ~

On the strength of the foregoing reasoning , I find the A proceedings to be inconsistent with the provision of te 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 B all the benefits under rules."

5. Aggrieved by the said order of the learned Single Judge of the High Court, the Union of India and t.he officials concerned of the Army have preferred Letters Patent Appeal (S'N) No. 284/

94. By order dated February 5, 2002, the Division Bench of the c

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.

6. Mr. D.K Garg, learned counsel appearing on behalf of D i 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 E 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 appel- . lant 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 F

in violation of natural justice and 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 de- G serves to be set aside by restoring the order of the learned Single Judge. . .

7. Mr. Parag P. Tripathi, learned Additional Solicitor General for the respondents on the other hand, supported the order H

A 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

i B 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 c power under Article 136 of the Constitution may ordinarily not interfere with the order of the Division Bench.

8. 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 D 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 E material and subsequent order of the confirming authority.

9. 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 -l F 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 Staff. There is nothing in Section 109 which requires the Chief of the Army G 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 H person under his command who is subject to Military Law aul

..,

thorized by A-1 warrant duly signed by the Chief of the Army A

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 B Army Act.

To,

The OFICER NOT BEING UNDER THE RANK OF A FIELD

OFFICER, COMMANDING THE XVI CORPS c 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 D for the trial, in accordance with the said Act and the Rules made thereunder, of any person under your command who is subject 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.

E 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.

F Sd/- General

CHIEF OF THE ARMY STAFF"

10. In the present case, the above said order dated 15th December, 1981 convening the assembly of GCM under the G 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 H

A appointed in compliance to Section 113 of the Act. Thus. the respondents have fully complied with the requirement of law.

11. The record of the Court-Martial produced before us by the learned Additional Solicitor General would reveal that the B GCM was held against the appellant on different dates at Udhampur. TiiEl record would disclose that the appellant had 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 c 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

0 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 . E 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'" September, 1981 in the presence of witnesses namely IC-25616Y Major S.L.

Gautam independent witness, Major Amin Chand Officer record- F ing Summary of Evidence. It appears from the record that second additional summary of evidence recorded on 1 O'" 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.

12. 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 gen-

[LOKESHWAR SINGH PANTA, J.)

eral courts-martial may be confirmed by the Central Govern~ A ment, 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 th_e Act.

B 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 ours.elves examining the record of the court-martial, we find that the learned Single Judge, with respect to him, completely misdirected himself in c 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 D i 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 sum~ mary confessional statement duly signed by him in the pres- E ence 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. '

13. The appllant filed post confirmation petition against F the order of the GCM under Sectior:i 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 competent authority and findings and sentences of the GCM recorded G 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 H

I A brought to the notice of the Division Bench by the appellant at the time of hearing and deciding the Letters Patent Appeal.

14. Having examined the above said order of the learned Single Judge, we find that the findings and reasonings recorded

B therein are not based upon proper assessment of the facts of the case and it was not necessary for the learned Single Judge to ha\i'e 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 wellc 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 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-mak- D ing process. Judicial review is not an appeal but a review of the r 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, exam ining the case of the appellant from all angles we are satisfied E 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.

15. The Division Bench of the High Court in the impugned

F 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 author- G ity.

16. 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

H the opinion that the said judgment on merit warrants no interfer-

[LOKESHWAR SINGH PANTA, J.] 683

ence inasmuch as no illegality, infirmity or error of jurisdiction A could be shown before us by the appellant.

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

18. For the reasons above stated, there is no merit in this B appeal and it is, therefore, dismissed. There will be no order as to costs.

K.K.T.

Appeal dismissed.