Holding

The General Court Martial was validly convened and its findings cannot be set aside by a High Court exercising judicial review under Article 226; the appeal is dismissed.

Summary

Bachan Singh, a Sepoy of the Indian Army, was tried by a General Court Martial (GCM) under the Army Act, 1950 for allegedly crossing the international border into Pakistan. The GCM found him guilty of an offence under Section 63, sentenced him to two years' imprisonment and dismissed him from service, and the sentence was later confirmed by the competent authority. Singh challenged the conviction in a writ petition; the Single Judge of the High Court set aside the GCM on the ground that the court‑martial was not validly convened under Section 109 and that there was no admissible evidence. The Division Bench of the High Court reversed that order, holding that the GCM was properly constituted and that the High Court's judicial review under Article 226 cannot re‑appreciate the GCM’s findings. On appeal, the Supreme Court affirmed the Division Bench, stating that the GCM was convened by a competent authority, complied with the Army Rules, and that the High Court erred in treating the review as an appeal to the merits. Consequently, the appeal was dismissed.

Issues considered

The General Court Martial was validly convened under Section 109 of the Army Act, 1950.
Whether a High Court exercising jurisdiction under Article 226 can set aside the findings and sentence of a General Court Martial.
Whether the evidence, including the appellant's confessional statements, was admissible and sufficient to sustain the conviction under Section 63.

Legislation cited

Army Act, 1950s. 109, s. 113, s. 153, s. 154, s. 164, s. 63
Army Rules, 1954s. 23(1), s. 23(2), s. 23(3), s. 23(4), s. 23(6)
Constitution of Indias. Article 226

Subjects

Army ActGeneral Court MartialSection 109Section 63Judicial ReviewArticle 226Military lawConvictionAppeal

Judgment

[2008] 10 S.C.R. 668

A BACHAN SINGH
v. !'"
'
UNION OF INDIA & ORS.
(Civil Appeal No. 3110 of 2004)

B
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 - Divi-
sion Bench of High Court set aside order of Single Judge -
On appeal, held: There was no illegality or irregularity in the
0
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 ""'
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 A
HELD: 1.1 Division Bench of the High Court was justi-
fied 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 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 law. [679-A,8,C] [680-8,C,D]
2. The findings and reasonings recorded by the
r
Single Judge of High Court are not based upon proper
D assessment of the facts of the case and it was not neces- r
sary for the Single Judge to have minutely examined the I>

record of the GCM as if he was sitting in appeal. In pro-
ceedings 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
revi~w 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
BACHAN SINGH v. UNION OF INDIA & ORS. 671
[LOKESHWAR SINGH PANTA, J.]

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 - ap-
pellant 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 appel-
lant is relegated back to the position he had on the date of pass-
. ing of the order with all the benefits under the Rules.
E
2. A General Court-Martial (GCM) under the Army Act,
1950 (for short 'the Act') was convened by the competent au-
thority 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. F
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
672 SUPREME COURT REPORTS [2008] 10 S.C.R.

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. ·
B 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
c 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
D
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.
E 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
F 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
G 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
H
BACHAN SINGH v. UNION OF INDIA & ORS. 673
[LOKESHWAR SINGH PANTA, J.]

10 Aug 80." A
The order convening the Court-Martial reads as under:-
"FORM OF ORDER FOR THE ASSEMBLY OF A
GENERAL COURT MARTIAL UNDER ARMY ACT
B
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- c
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 Gen-
eral Court Martial the ac-
D
cused person named in the
margin (and such other per-
son or persons as may be
brought before them.)

The Senior Officer to sit as Presiding Officer. E
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 F
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 G
IC-24826M Gill Mohanjit Singh - 8 CAV
A
IC-35033K Capt Hari Mohan Joshi - 374 Sig Regt
JUDGE ADVOCATE
IC-36504Y Maj Deosthale Jayant Kumar - DAJAG
HQ Northern Command H
674 SUPREME COURT REPORTS [2008] 10 S.C.R.

A is appointed Judge Advocate
PROSECUTOR
IC-29015L Maj Valentine, Joseph Melvin - 9 MADRAS
appointed prosecutor

B 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.
c
Signed this fifteenth day of December, 1981.
Sd/-
(R. K. Kash yap)
Lieutnant Colonel
Assistant Ad-jutant General for
D
Officiating General Officer Commanding
16 Corps"
The charge sheet reads as under:-
"CHARGE SHEET
E·
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
F
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.
Sd/-
Station: Field (Balwant Singh)
Date: 12 Dec 81 Major
H
"'
BACHAN SINGH v. UNION OF INDIA & ORS. 675
[LOKESHWAR SINGH PANTA, J.]

Officiating Commanding Officer A
2nd Batallion The Dogra Regiment
To be tried by a General Court Martial
Place : Field Sd/-
B
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 re-
quired 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 · Sin~le 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 para-
graphs of the judgment of the learned Single Judge which are
as under:-
'
'

676 SUPREME COURT REPORTS [2008] 10 S.C.R.

~

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
evidence·was 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.

f
BACHAN SINGH v. UNION OF INDIA & ORS . 677
[LOKESHWAR SINGH PANTA, J.]
-~

On the strength of the foregoing reasoning , I find the A
proceedings to be inconsistent with the provision of t~e
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
i D
the appellant in support of the judgment of the learned Singl·e
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 E
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 judg-
ment 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 Gen-
eral for the respondents on the other hand, supported the order
H
678 SUPREME COURT REPORTS [2008] 10 S.C.R.

A passed by the Division Bench of the High Court and submitted
that the High Court was right in allowing the Letters Patent Ap-
peal 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 war-
rant for convening GCM under the Act has been issued by the
Chief of the Army Staff under Section 109 whereby all the offic-
•
ers 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 au-
l
I
BACHAN SINGH v. UNION OF INDIA & ORS. 679
[LOKESHWAR SINGH PANTA, J.]

thorized by A-1 warrant duly signed by the Chief of the Army A
Staff was produced before the High Court which has been no-
ticed 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
Army Act. B

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
680 SUPREME COURT REPORTS [2008] 10 S.C.R. ·

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

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 state-
ments 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 sup-
0
port of the charge in the presence of the appellant. The appel-
lant was afforded full opportunity of cross examining the wit-
nesses 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 sec-
ond additional summary of evidence recorded on 1 O'" Septem-
ber, 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.
G
12. Chapter XII of the Act deals with Confirmation and Re-
vision. 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-
H
BACHAN SINGH v. UNION OF INDIA & ORS. 681
[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 sen-
tences 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
i D
presence and he had participated in the court-martial proceed-
ings without raising any objection. The GCM took into consid-
eration 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-
ence of Major S.L. Gautam and Major Amin Chand who have E
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 app~llant 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 compe-
tent 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 au-
thority. 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
682 SUPREME COURT REPORTS [2008] 10 S.C.R.
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
therein are not based upon proper assessment of the facts of
B 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 well-
c 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 di-
rected 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 judg-
ment only on the correctness of the decision making process
and not on the correctness of the decision itself. Thus, exam in-
ing 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 hold-
ing very high ranks in Army hierarchy.
15. The Division Bench of the High Court in the impugned
judgment while setting aside the judgment of the learned Single
F 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 evi-
dence recorded by the authorities and substitute by its own find-
ing 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 judg-
ment of the learned Single Judge, yet in substance we are of
the opinion that the said judgment on merit warrants no interfer-
H
BACHAN SINGH v UNION OF INDIA & ORS. 683
[LOKESHWAR SINGH PANTA, J.]
\
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.