TaxTMI 
TaxTMI 
2008 (7) TMI 1019
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.... 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. 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 8....
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....JAG 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 Pakistan, alongwith Shri Rattan Singh S/o Shri Waryam Singh of the said village. Sd/- Station: Field ( Balwant Singh) Date: 12 Dec 81  ....
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....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 ....
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....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 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....
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..../- 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 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, M....
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....k 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 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....