1

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

2

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

3

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  

the Union of India against the order dated 11th October, 2002 in

4

the matter of Satya Deo Giri.  No costs.

.....................J. (R.M. LODHA)

.....................J. (JAGDEESH SINGH KHEHAR)

NEW DELHI; 22ND SEPTEMBER, 2011