9911796707
TMI Blog2008 (7) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... epoy 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRAS 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 Pakistan, alongwith Shri Rattan Singh S/o Shri Waryam Singh of the said village. Sd/- Station: Field ( Balwant Singh) Date: 12 Dec 81 Major Officiating Commanding Officer 2nd Batallion The Dogra Regiment To be tried by a General Court Martial Place : Field Sd/- Date: 12 Dec 81 (R.K. Kashyap) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings 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 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 confes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetent 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 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 correctne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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