Chauhan, J.
(1). The instant writ petition has been filed for quashing the impugned orders dated 11.12.1990 (Annex. 10) by which the petitioner has been dismissed from service, consequential orders thereto and the order dated 4.7.1991 (Annex. 10-A) by which his petition under Section 164(2) of the Army Act, 1950 (for short, 'the Act') has been rejected by the Central Government.
(2). The facts and circumstances giving rise to this case are that petitioner- the then a Captain in the Indian Army was served with a charge-sheet for holding the General Court Martial (for short, 'G.C.M.') proceedings on 13.1.1985 on the allegations of taking illegal gratification from two persons as a motive of rendering services to them. Petitioner filed S.B.C. Writ Petition No.88/85 apprehending that the respondent authorities would not provide him the defence nominee. This Court passed interim order directing the respondents to provide the petitioner a defence nominee. The first trial stood concluded vide order dated 2.8.1985 and petitioner was dismissed from service. Writ Petition No.88/85 was heard by this Court and vide order dated 4.8.1986 it restrained the authorities to confirm the order of dismissal passed on 2.8.85 and ultimately vide order dated 20.7.88 (Annex.1) this court disposed of the said Writ Petition quashing the first trial proceedings including the order dated 2.8.1985 by which the petitioner had been dismissed from service and issued directions to the respondents to accord the petitioner an opportunity to seek assistance of a Lawyer nominated by him and also to cross-examine the witnesses examined by the prosecution and for that purpose the said witnesses would be re-examined. As the order of this Court dated 20.7.88 was not complied with, petitioner approached this court again by filing Contempt Petition No. 22.90 which was heard and decided on 27.8.90 issuing directions to the respondents to allow Shri M.L. Shrimalee, Advocate of this court to advise the petitioner at the cost of the Government and to proceed further in accordance with law. Again, in the G.C.M. proceedings, the objection taken by the prosecutorthat petitioner would not lead evidence in defence was allowed, vide order dated 1.10.1990, though there were several list of witnesses contained in Annex.4, to 6 whom the petitioner wanted to examine in his defence. After closing the prosecution and defence case, on 5.10.90 one Col. K.S. Kanwal was examined as court witness No.1, who supported the prosecution case. Petitioner made the submission in the closing address of the C.G.M. proceedings that he was not given the opportunity to defend himself. Vide order dated 12.10.90, the punishment of reducing seniority of the petitioner for six years and withholding increment for a period of eight years was passed, however, vide order dated 7,12.90 the sentence was directed to be revised and in pursuance thereof vide order dated 11.12.90 (Annex.10) order of dismissal from service was passed against the petitioner. The said order of punishment was confirmed vide order dated 7.2.91. Being aggrieved petitioner filed a petition under Sec, 164(2) of the Act before the Central Government which stood rejected vide order dated 4.7.1991 (Annex.10-A). Being aggrieved and dissatisfied petitioner preferred Writ Petition No. 3965/91 before the Allahabad High Court (Lucknow Bench) challenging the order of dismissal his petition under Section 164(2) of the Act vide order dated 4.7.91. The Allahabad High Court dismissed the Writ Petition vide order dated 6.5.1992 only on the ground that it had no territorial jurisdiction in the matter as neither the cause of action had arisen in its territorial Jurisdiction nor any of the respondents was having residence or official address therein. The opportunity was given to the petitioner to approach the appropriate forum. Hence, this petition.
(3). The petitioner has raised a large number of issues, particularly mala fides, irregularities in resisting the order of punishment and passing of a non-speaking order By the Central Government on his petition made under Section 164(2) of the Act, 1950. But above all, his grievance has been in respect of not allowing him to examine the defence witnesses. In wake of the above, petitioner submitted for quashing of the impugned orders.
(4). On the other hand, it has been submitted on behalf of the respondents that the scope of the judicial review in Court- Martial proceedings is very limited. This Court cannot have a roving inquiry in the allegations of malafides. No irregularity was committed in revising the order of punishment; nor, there was any requirement for the Central Government to pass the speaking order. Petitioner was not allowed to lead evidence in defence as there had been no direction in this regard by this Court while quashing the punishment order earlier and h3e had not furnished the list of witnesses to be called by him at the initial stage as required under Rule 34(1) of the Army rules, 1954 (hereinafter called 'the Rules'). Hence, no relief can be granted to the petitioner.
(5). I have considered the rival submissions made on behalf of the parties.
(6). It is settled proposition of law that the judicial review is not permissible against the decision/order of punishment, rather it lies only against the process of decision-making. In S.N. Mukherjee v. Union of India (1), the Constitution Bench of the Hon'ble Supreme Court dealt with a case wherein the appellant had challenged the validity of the findings and the sentence recorded by the G.C.M. and the order of the Chief of Army Staff Confirming the same. It was held therein that the Supreme Court under Article 32 and the High Court under Article 226 have the power of judicial review in respect of proceedings of courts-martial in respect of proceedings of courts-martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record.
(7). Similar view has been reiterated in General Court-Martial and Ors. ys. Col. Aniltej Singh Dhaliwal (2).
(8). In Union of India and Ors. v. Maj. A. Hussain (3), Hon'ble Supreme Court observed as under:-
'Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court- martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any Court may stay its hands off. Proceedings of a court-martial are not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure..... It has been rightlysaid that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards..... it is manifestly clear that theprocedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused ..... One may usefully referto Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishmenf.
(9). The Army Act and the Rules framed thereunder constitute a self contained Code providing for a proper procedure for holding Court Martial proceedings. In Ranjit Thakur v. Union of India and Ors. (4), the Apex Court held as under:-
'The procedural safeguard contemplated in the Act must be considered in the context of and corresponding to the plentitude of the summary jurisdiction of the Court Martial and the severity of the consequence that visit the person subjected to that jurisdiction. The procedural safeguard should be commensurate with the sweep of powers. The wider the power, the greater is the need for restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguard envisaged by the Statute.'
(10). While deciding the said case, the Hon'ble Supreme Court relied upon the judgment in Vitarelli v. Seaton (5), wherein it has been observed as under:- .
' ..... if dismissal from employment is based on a defined procedure even though generous.beyond the.requirement that bounds such agency, that procedure must be scrupulously observed.'
(11). It is settled legal position that Article 33 of the Constitution has to be construed as to sub-serve the mandate of Article 21 of the Constitution of India.
(12). In Lt. Col.Prithi Pal Singh Bedi v. Union of India and Ors. (6), the Hon'ble Apex Court had observed that persons subject to Army Act do not cease to be citizens of India and they are not wholly deprived of their rights under the Constitution, rather they are entitled to benefits of the liberal spirit of the Constitution. The court observed as under:
'Persons subject to Army Act are citizen of this ancient land having a feeling of belonging to the civilized community governed by the liberty oriented Constitution. Personnel liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and rea-sonable procedure and trial... Army is always on arraign for repelling external aggression and suppressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of disorder... and it must be realised that an appeal from Ceaser to Ceaser's wife.., has been condemned as injudicious and merely a lips sympathy to form.'
(13). However, the Court held that it was not possible to accept the contention that the law prescribing procedure for trial of offences by the Court Martial must satisfy the requirement of Article 21 of the Constitution because to the extent the procedure is prescribed by law and if stand in derogation of Article 21, to that extent Article 21 in its application to the Armed Force is modified by the enactment of the procedure in the Army Act itself. Same view has been reiterated in Maj. G.S. Sodhi v. Uhion of India and Ors. (7).
(14). In Union of India and Ors. v. Madan Lal Yadav (8), the Hon'ble Supreme Court again reiterated that Article 33 of the Constitution curtails certain rights guaranteed under Article 21 so far as the Defence Personnel are concerned. But whatever procedure has been prescribed, is bound to be followed and under no circumstance it should prejudice the cause of the accused.
(15). In Maj. Sodhi (supra), the Hon'ble Apex Court observed that each and every kind of defect in the procedure does not necessarily render the verdicl invalid. 'The object and effect of the Rules should be considered in the context bearing in mind the general principle whether such an incomplete compliance has caused any prejudice to the delinquent officer. However; if there is any violation of the mandatory Rules, the necessary benefit of the same should be given to the delinquent.' It is settled law that the case has to be tested on the touch stone of doctrine of prejudice. (Vide Managing Director, ECIL, Hyderabad and Ors, v. B. Kanunakar and Ors. (9); State Bank of Patiala and Ors. v. S.K.Sharma (10); S.K.Singh v. Central Bank of India andOrs. (11) and Monika Jain v. State of Rajasthan and Ors. (12).
(16). In Bank of Patiala v. S.K. Sharma (13), the Hon'ble Supreme Court held that even a mandatory provision can be waived by a person concerned if such mandatory provision is conceived in his interest and not in public interest. Where the Courts examine a case of non-observance of procedural rules, they should normally consider whether the non-observance has really caused any prejudice to the delinquent.
(17). So far as the matters relating to defence personnel are concerned, in Union of India and Ors. v. Charanjit S. Gill and Ors. (14), the Hon'ble Supreme Court held as -under:-
'Despite the lapse of about two decades (of the decision in Prithi Pal Singh Bedi) neither Parliament nor the Central constitutional obligations, as were expected by this Court, except amending Rule 62 .....Even today the law relating to the Armed Forces remains static which requires to be changed keeping in view the observations made by this Court in Prithi Pal Singh Bedi case the constitutional mandate and the changes effected by other democratic countries. The time has come to allay the apprehension of all concerned that the system of trial by Court Martial was not the archetype of summary and arbitrary proceedings.
In the absence of effective steps taken by Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens including the persons enrolled in the Armed Forces to the extent permissible under law by not forgetting the paramount need of maintaining of discipline in the Armed Forces of the country.
(18). In B.C. Chaturvedi v. Union of India (15), the Court observed that judicial, review of the manner in which the decision is made and the power of judicial reviewis meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court.
(19). In Union of India and Ors. v. Himmat Singh Chahar (16), the Hon'ble Supreme Court held as under:-
'Since the entire procedure is provided in the Act itself and the Act also the Chief of the Naval Staff and then by the Union Government then ordinarily there should be a finality to the findings arrived at by the competent authority in the court- martial proceedings. It is of course true that notwithstanding the finality attached to the orders of the competent authority in the court-martial proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act.'
(20). The same view has been reiterated by the Hon'ble Supreme Court in Union of India and Ors. v. Harish Chandra Goswami (17).
(21). Thus, there is very limited scope of interference and the case is required to be examined within the well-defined permissible limits of judicial review.
(22). The issue of mala fide has been raised, particularly pointing out towards certain documents which had been collected by the Convening Authority himself and could not have been given to him, rather the same could have been summoned through proper channel. Attention of the court has been drown to the documents contained in Annex.13, 14 and 15 of the writ petition. Annex.13 is the letter dated 20.7.85 written by the petitioner himself to the Commanding Officer, Garwal Rifles, wherein he had requested him to send certain documents to be put in defence. Annex. 14 is the letter dated 25.7.85 forwarding the letter of the petitioner for sending certain documents to the said Commanding Officer. However, the letter dated 31.7.85 (Annex. 15) shows that it was sent to the Prosecuting Officer Maj. Gosain himself.
(23). This Court cannot hold a roving inquiry in such matters which could have been dealt with by the Authority concerned. The Hon'ble Supreme Court in Maj. G.S. Sodhi v. Union of India and Ors. (supra), held that the Court should not make roving inquiry into the allegations,and counter-allegations of mala fide in a C.G.M. proceedings for the reason that the plea of bias and prejudice have to be proved showing cogent material, on the basis of which the Court can draw the conclusion of bias and prejudice and such wild allegations cannot be the basis of drawing inference of malice.
(24). The Central Government rejected the petition filed by the petitioner under Sub-section (2) of Section 164 of the Act without recording any reason for dismissing the same, the order reads as under:-
'The Central Government, after considering the post confirmation petition dated 7.2.1991 submitted by 1C2527 5Y Major Virendra Sharma under the provisions of Section 164(2) of Army Act, 1950 against the finding and sentence of the General Court Martial convened by HQ 24 Inf Div:, hereby reject the said petition.'
(25). Inspite of giving repeated opportunities Shri Vyas, learned counsel for the respondents could not inform the Court whether while rejecting the said petition the Central Government has recorded the reasons. The record was summoned but there is no document to ascertain this factual position. In a given case may be that a reasonorder has been passed by the Authority but the reasons have not been communicated to the person concerned.
(26). The Hon'ble Supreme Court In S.N. Mukherjee (supra) after considering various Judgments of the Apex Court, observed that the object underlying the rules is to prevent miscarriage of justice and secure fair play in action. Requirement of recording the reasons is not only limited to judicial and quasi-judicial functions but also in administrative actions as it has to be regarded as one of the principles of natural justice and it has to be recorded unless such a requirement has been dispensed with expressly, or by necessary implications. However, while considering the provisions of the Army Act and the Rules, the Apex Court observed as under:-
'Moreover, we find that in Section 162, an express provision has been made for recording all reasons based on merits of the case in relation to the proceedings of summary Court Martial in cases where the said proceedings are set-aside or the sentence is reduced and no other requirement for recording the reasons is laid down either in the Act or in the Rules in respect of proceedings for confirmation. The only inference that can be drawn from Section 162 is that the reasons have to be recorded only in cases where the proceedings of a summary court-martial are set aside or the court-martial are set aside or the sentence is reduced and not when findings sentence is reduced and not when findings and sentence are confirmed. Section 162 thus negative the requirement to give reasons on the part of the Confirming Authority while confirming the findings and sentence of A Court-martial and it must be held that the Confirmation Authority is not required to record reasons while confirming the finding and sentence of court-martial'.
(27). Section 164(2) empowers the Authority to pass any order while considering the petition of a person, who has been imposed the punishment in the Court Martial Proceedings. The provisions do not specifically require to record reasons while deciding the said petition, i.e. setting aside or reducing the sentence or even confirming the same. Under this provision, the Authority is specifically under no obligation to record reasons. The law laid down by the Hon'ble Apex Court in Ku. Shrilekha Vidyarthi v. State of U.P. and Ors. (18); Life Insurance Corporation of India v. Consumer Education and Research Centre (19); Mahesh Chand v. Regional Manager, U.P. Financial Corporation and Ors. (20); Union of India v. M.L. Capoor (21); State of West Bengal v. Atul Krishna Shaw (22); Krishna Swamy v. Union of India (23); Institute of Chartered Accountants of India v. L.K. Ratna and Ors. (24); Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Gavendranath Nadkarni and Ors. (25); been Ramesh-wari Devi Mewara v. State of Rajasthan and Ors. (26). In Vasant D. Bhavsar v. Bar Council of India and Ors. (27) and Charan Singh v. Healing Touch Hospital and Ors. (28); wherein the Hon'ble Supreme Court has held that recording of reasons, to minimise the chances of arbitrariness, atleast in brief is necessary not applicable in this case as the Act or the Rules have provided specially where the reasons are to be recorded. Thus, where no such provision exists, it would be implied that it is not necessary to record the reasons. Therefore, it cannot be held that the order of the Central Government stood vitiated on this ground.
(28). This Court, vide order dated 20.7.1988 passed the following order:-
'The petitioner shall nominate his counsel within one week and intimate to the Convening Authority and the Convening Authority shall permit defence counsel so nominated by the petitioner to appear on behalf of the petitioner before the Court Martial authorities and the authorities shall give the petitioner one week leave to consult his counsel. The Court Martial authority shall re - examine all thewitnesses so far examined and permit the petitioner and his counsel to cross-examine them. The examination-in-chief which has already been recorded need not be repeated again. The copies of examination-in-chief of the witnesses shall be supplied to the petitioner, if not supplied. Thereafter his lawyer shall be heard, finding may be recorded afresh.'
(29). The relevant petition of G.C.M. proceedings dated 10.1.1990 on the issue of examining the defence witnesses reads as under:-
'The prosecutor objects to the submission of the defence for additional defence witnesses on the ground that as per Hon'ble High Court the Court Martial shall re-examine all the witnesses examined so far, Since no defence witness other than the accused, who volunteered to give evidence on oath in 1985 was examined, no permission should be given to the defence to examine additional defence witnesses..... The defending officer submits in answer to defence witnesses to the convening authority and now another 16 to 17 witnesses may be required to bring out the truth before the Court. Thus a total of about 25 to 30 witnesses are required to be examined by the defence. The defending officer further submits that the High Court has not expressly barred the examination of defence witnesses as contended by the prosecutor. Therefore, the defence shall be permit-ted to call and examine the defence witnesses..... Further witnesseswhatsoever should not be allowed to be heard because it is not stated in the Hon'ble High Court order ..... The Court decides to allow the objection by the prosecutor. The Court also decides to permit the defence to bring out any point connected with the defence, in the address by the accused or his counsel, if the accused so desires, for consideration of the Court.'
(30). Thus, it is evident that the defence witnesses were not allowed to be examined only for the reason that this Court in its final order dated 20.7.1988 had not given any direction in this regard and petitioner has not given the names of the witnesses at the initial stage as provided under Rule 34(1) of the Rules.
(31). Therefore, the question does arise whether there has been denial of the opportunity to examine the defence, witnesses. Rule 57 pertains of Plea of no case and provides that at the closing of the case for the prosecution, the accused may offer a plea that the evidence given on behalf of the prosecution, in respect of any one or more charges, has not established a prima facie case against him and mat he should not, therefore, be called upon to make his defence to that charge or charges. Clause (5) thereof provides that if the Court over-rules the plea, it shall proceed with the trial. Rule 58 pertains to examination of the accused and defence witnesses and it provides that in every trial, for the purpose of enabling the accused personally to' explain any circumstances appearing in evidence against him, the Court, without previously warning the accused, put such questions to him as considers necessary and shall, after the close of the case for the prosecution and before he it called on for his defence, question him generally on the case. Clause (2) of Rule 58 provides that after the close of case for the prosecution, the presiding officer shall explain to the accused that he may make an unsworn statement, orally or in writing, giving his account of the subject of the charge(s) against him or if he wishes, he may give evidence as a witness, on oath or affirmation, in disproof of the charge(s) against him or any person charged together with him at the same trial. Clause (3) of Rule 58 provides that the accused may then call his witnesses including, If he so desires, any witnesses as to character. If the accused intends to call witnesses as to the facts of the case other than himself, he may make an opening address before the evidence for defence is given. Rule 59 pertains to Closing Addresses and provides that after the examination of witnesses,the prosecutor may make a closing address and the accused or his counsel or the defending officer, as the case may be, shall be entitled to reply; provided that where any point of law is raised by the accused, the prosecutor may, with the permission of the Court, make his submission with regard to that point.'
(32). In the instant case, this Court, vide order dated 20.7.88, had quashed the earlier punishment order and directed the G.C.M. proceedings to be re-opened by recalling the prosecution witnesses and allowing the petitioner-accused to cross-examine the said witnesses. The said witnesses were recalled and cross- examined by the petitioner. Thus, it has to be held that prosecution case cannot be said to had been closed prior to the conclusion of the cross-examination of the prosecution witnesses. The petitioner had to call/examine witnesses in support of his case only at this juncture as provided under Rules 57, 58 and 59 of the Rules. Thus, there was no occasion for this Court to issue mandamus to the G.C.M. to observe and comply with the Statutory Rules. If in 1985, petitioner had not submitted the names of the defence witnesses as required under Rule 34(1) of the Rules, he could not be permitted to call the witnesses in second trial for the reason that earlier proceedings stood quashed from a particular stage, i.e. conclusion of the examination-in-chief of the prosecution witnesses and the respondents were directed to proceed afresh from this stage. Petitioner could haVe a right to call the defence witnesses as required under Rules 57, 58 and 59 of the Rules provided he had furnished their names and particulars at the initial stage as required under Rule 35(1) of the Rules, which reads as under:-
'Warning of accused for trial.-(1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly,'
(33), In fact, the Rules 57 to 59 lay down a procedure as at what stage the witnesses in defence can be called/examined. The question of calling of witnesses would arise only when the accused had already submitted their names at initial stage as required under Rule 34(1) of the Rules. Initially, the trial commenced on 12.1.85 and during that period, petitioner never gave the name of any witness, rather he gave in writing that as per the provisions of Rule 59-A, he would come as a witness in defence and depose. Even thereafter he did not make any application to examine defence witnesses. Even in the closing- address, petitioner did not mention that he wanted to examine any witness whatsoever. The list of witnesses produced by him was at a very belated stage, i.e. on 30.8.90, 23.9.90 and 27.9.90. Even in the closing-address on 6.10.90, petitioner did not take this ground that he was aggrieved because of not permitting him to examine the defence witnesses. However, during trial, the counsel for defence Mr. M.L. Shreemali remained present and it was in his presence that the entire trial was concluded second time but the defence was conducted by Lt.Col. Pandey as a Defending Officer. The services of the defence counsel was provided to the petitioner at the cost of the State, therefore, on this ground the petitioner cannot succeed. Further, consideration of requirement of rule 137 of the Rules, which provides for meeting the expenses etc. also becomes irrelevant.
(34). The another grievance raised by the petitioner had been that the order of sentence was directed to be revised by the Authority not competent vide order dated 11.1.90 (Annex. 10). The said order reads that the Court, after considering the observation of the Confirming Authority, revoked the sentence and new sentence of dismissal from service was imposed. The sentence was announced as being subject to confirmation. This order was passed by Brig. Shankar Prasad - the Presiding Officer. In fact, the initial punishment imposed by the G.C.M. was for inflicting the punishment of forfeiture of six 'years' seniority and withholding of eight annual grade increments. However, vide order dated 7.12.90, the Major General, General Officer Commanding, 24 Infantory Division, passed a reasoned and speaking order. The said Authority heldthat as while passing the order of punishment, the court-martial had to consider the provisions of Para 68 of the Regulations for Army, 1987 (for short, 'the Regulations') for guidance and keep in mind the nature and gravity of the findings and impact of sentence awarded on the disciplinee and moral of the service and good name of the Army and as the sentence awarded by the G.C.M. was not considered to be commensurate with the gravity of the offence, it was directed to be revoked and after giving an opportunity to the accused- petitioner to make any address with reference to he point of revisional order, a fresh order should be passed by amending the order .f punis..ent. It was further directed that after revision, the proceedings should be forwarded to the Headquarters and in pursuance thereof, the revision of sentence was made up-wards.
(35). The grievance of the petitioner in this respect had been that the revision had not been directed by the Authority competent under Para 472 of the Regulations. The said paragraph provides that the proceedings in Court-martial, being summary in nature and where the sentence specified in column thereof below the death sentence is passed, it would be reserved for confirmation by the Authority specified therein. In fact, Para 472 of the Regulations provides a procedure for confirming the finding and sentence passed by the G.C.M. Power to order revision of sentence or finding is governed by Section 160 of the Act and Rule 68 of the Rules. Section 160 of the Act reads as under:-
'Revision of finding or sentence,-(1) Any finding or sentence of a court-martial which requires Confirming Authority and on such revision, the Court, if was directed by the Confirming Authority, may take additional evidence.'
(36): Rule 68 provides for the procedure of revision after the order is passed by the Confirming Authority under Section 160. Therefore, the issue remains limited only to the extent as who was the Competent Authority to confirm the sentence.
(37). It is quite clear from the aforesaid statutory provisions that the Confirming Authority alone is competent to pass the order to revise the findings and sentence. Para 472 of the Regulations provides that in case of death sentence, the Central Government will be the Confirming Authority. Clause (2) thereof provides that the sentence passed on officer of dismissal or higher in the scale of punishment set out in Section 71 of the Army Act and sentence on officer who holds or held the rank of colonel or above at the time of commission of offence or at the time of cognizance of the offence, the Chief of the Army Staff shall be the Confirming Authority. Clause (4) thereof which is relevant for the instant case, provides that all the sentences passed on officers not required to be reserved for confirmation by Chief of the Army Staff under Clauses (2) & (3) shall be confirmed by the General Officer Commanding. In the instant case, as the punishment awarded by the court-martial was not of dismissal or higher in scale of punishment set out in Section 71 of the Act which also includes for death, imprisonment for life, imprisonment either rigorous or simple for any period not exceeding fourteen years, cashiering in case of officers etc., the General Officer Commanding, 24 Infantory Division, was competent under Section. 160 to pass an order of revision.
(38). Section 160 requires to be read with Section 154, which reads as under:-
'The finding the sentence of General Court Martial may be confirmed by the Central Government or by any officer empowered in this behalf i by warrant of the Central Government.'
(39). In the instant case, as it has been pointed out by the respondents that the General Officer Commanding, 24 Infantory Division, was the holder of A-3 Warrant and as such the competent Authority to exercise the power under the said provisions of that Act, he was empowered even to confirm the proceedings of the G.C.M. The cumulative effect of the Act and statutory provisions comes that the Authority, which passed the order to revise the punishment, cannot be held to be 'not competent' and, thus, the petition is liable to be rejected on this count also.
(40). To sum-up, as the petition does not deserve to be allowed on any of the grounds, the writ petition fails and is hereby dismissed. There shall be no order as to costs.