Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6444-6445 OF 2005
KHEM CHAND ... APPELLANT
VERSUS
UNION OF INDIA & ORS. ... RESPONDENTS
O R D E R
These two Civil Appeals are from the judgment and
order dated December 16, 2003 passed by the High Court of
Judicature at Allahabad. The Division Bench of that Court, by
the impugned order has set aside the judgment of the learned
Single Judge delivered on February 2, 2002.
The appellant and two others, namely, Isa Nand Dubey
and Satya Deo Giri were tried by the General Court Martial for
the murder of Havaldar Ram Phal and Sepoy Jagannath Prasad by
shooting them down near village Bhatagaon. The General Court
Martial vide its verdict on January 21, 1975 convicted the
appellant, Isa Nand Dubey and Satya Deo Giri for the murder of
the two above named persons and sentenced them to suffer life
imprisonment. The General Court Martial also recommended the
dismissal of the appellant and the other two persons from
service. The appellant made representation to the Chief of
Army Staff against the verdict of the General Court Martial. On
February 25, 1975 the Chief of Army Staff rejected the
appellant's representation.
The appellant and the other two persons filed
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separate Writ Petitions before the High Court of Judicature at
Allahabad and challenged the order of the General Court Martial
dated January 21, 1975 and the order of the Chief of Army Staff
confirming the verdict of the General Court Martial. The Writ
Petition filed by Isa Nand Dubey was allowed by the Single
Judge of the Allahabad High Court on April 6, 1978 and the
order of the General Court Martial as well as the order of the
Chief of Army Staff were set aside. The Writ Petition filed by
Satya Deo Giri was also allowed by the High Court of Allahabad
on October 11, 2002 and the impugned orders therein were set
aside. Insofar as the appellant's Writ Petition is concerned,
that was allowed by the learned Single Judge on February 10,
2003. The learned Single Judge quashed the order of the
General Court Martial dated January 21, 1975 and the order of
the Chief of Army Staff dated February 25, 1975.
Against the order of the learned Single Judge dated
February 10, 2003, the Union of India, Chief of Army Staff and
General Officer Commanding preferred intra-court appeal. The
Division Bench, by its order dated December 16, 2003, as
noticed above, has set aside the judgment and order of the
learned Single Judge. The reason given by the Division Bench
for setting aside the order of the Single Judge is as follows :
“It is well settled that in writ jurisdiction the High
Court cannot go into findings of fact recorded by the
Court below or Tribunal. In our opinion the Learned
Single Judge has erred in law by treating the Writ
Petition before him as if it was a First Appeal and he has
interfered with findings of fact.....”
We are unable to sustain the order of the Division Bench for
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more than one reason. For one, the Division Bench has not at
all considered and adverted to the reasons given by the learned
Single Judge in support of his conclusions. The Single Judge
dealt with the matter at considerable length and also noted
that order of the General Court Martial has been set aside
earlier in the Writ Petitions filed by the co-accused. Whatever
be the worth of the reasons recorded by the Single Judge, they
ought to have been considered by the Division Bench. Secondly
and equally important, the appeal preferred by the Union of
India and Chief of Army Staff against the judgment of the
Single Judge in the matter of the co-accused, i.e., Satya Deo
Giri is stated by Mr.R.Balasubramanian, on instructions, to be
pending consideration before the Division Bench of the High
Court. In view of the pendency of the appeal preferred by the
co-accused, it is in fitness of things that both the appeals
are heard together by the Division Bench of that Court or by
the Armed Forces Tribunal on transfer of such matters as the
order of General Court Martial is common. As a matter of fact,
both the learned counsel agreed for this course.
The Civil Appeals are, accordingly, allowed; the
order of the Division Bench dated December 16, 2003 is set
aside and Special Appeal (No.198/2003) -Union of India & Ors.
Vs. Khem Chand is restored to the file of the High Court of
Judicature at Allahabad for proceeding afresh with the matter
in accordance with law along with Appeal preferred by
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the Union of India against the order dated 11 October, 2002 in
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the matter of Satya Deo Giri. No costs.
.....................J.
(R.M. LODHA)
.....................J.
(JAGDEESH SINGH KHEHAR)
NEW DELHI;
22ND SEPTEMBER, 2011