- (1.) 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.
(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. 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 (Jandk) 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 (Jandk ). 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 (Jandk) 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 Jandk 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 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:- JUDGEMENT_1072_TLPRE0_2008Html1.htm The charge sheet reads as under:- JUDGEMENT_1072_TLPRE0_2008Html2.htm 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 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 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. "
(3.) 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 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.;