BACHAN SINGH versus UNION OF INDIA & ORS.

Citation: [2008] 10 S.C.R. 668 · Decided: 10-07-2008 · Supreme Court of India · Bench: C.K. THAKKER · Disposal: Dismissed

Judgment (excerpt)

A 
[2008] 10 S.C.R. 668 
BACHAN SINGH 
v. 
UNION OF INDIA & ORS. 
(Civil Appeal No. 3110 of 2004) 
JULY 10, 2008 
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' 
B 
[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 - Divi-
sion 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 pro-
cess - Constitution of India, 1950 - Article 226 - Army Rules, 
1954- rr. 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 
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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 
BACHAN SINGH v. UNION OF INDIA & ORS. 
669 
Dismissing the appeal, the Court 
HELD: 1.1 Division Bench of the High Court was justi-
fied in setting aside the order of the Single Judge who was 
A 
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 misdi- c 
rected himself in coming to the conclusion that the pro-
ceedings held by GCM were inconsistent with the provi-
sions 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 confes-
sional 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 ap-
pellant 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 war-
rant for convening GCM under the Act has been issued j~ 
.... 
670 
SUPREME COURT REPORTS 
[2008] 10 S.C.R. 
I 
I 
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 re-
quirement of

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