JUDGMENT

REDDY, J.:- This petition is filed under Art. 32 of the Constitution of India seeking an appropriate writ directing the respondents i.e. Union of India and the Chief of the Army Staff to restore the petitioner to service with all consequential benefits and grant of pension.

2. The petitioner entered the Indian Army in 1939 and served in Burma during the second world war and later joined Indian National Army and fought under the leader-ship of the Netaji Subhash Chander Bose and on India attaining independence, he rejoined Indian Army in 1948 and was promoted to the rank of Hawaldar. He was released from Army service on 15-10-1964 consequent to the reduction of manpower and consequently he joined Defence Security Corps on 14-9-67 and served till 29-7-78. While serving in Defence Security Corps in 1976 at Pathankot, he along with Major Trilok Chand who at the relevant time was serving as their officer and nine others was charge-sheeted by the Court-martial. The charge against them was that Trilok Chand committed the theft of 250 Wheel drums while getting them loaded in a civil truck and that the others abetted the commission of the said offence. Major Trilok Chand was found guilty and out of the nine abetters, eight abetters were acquitted. Major Trilok Chand was awarded one year imprisonment. The petitioner was dismissed from the service with an imprisonment of 90 days in civil prison. Major Trilok Chand questioned the proceedings of the Court-martial before the High Court of Allahabad in Writ Petition No. 13161 of 1981. The High Court allowed the writ petition and held that there was no evidence that it was Trilok Chand who removed the wheel drums and consequently the High Court found that there was no material to support the charge of theft. The review petition filed by the Union of India was dismissed by the High Court and the S.L.P. No. 9294 of 1987 filed by the Union of India in the SC was dismissed on 5-10-87. Consequently Major Trilok Chand has been reinstated in the service.

3. In view of the fact that the main accused has been acquitted and reinstated in service the petitioner requested the authorities to review his case and give the necessary relief but his request was rejected. Hence the present petition.

4. Learned counsel for the petitioner submitted that since the principal accused Major Trilok Chand has been acquitted of the charge of theft and has also been reinstated, the petitioner who was only charged of abetment of the said offence of theft cannot be found guilty.

5. In support of his submissions, learned counsel has relied on some of the decisions of this Court in Faguna Kanta Nath v. State of Assam, (1959) Supp (2) SCR 1, Jamuna Singh v. State of Bihar, AIR 1967 SC 553 and Madan Raj Bhandari v.State of Rajasthan, (1970) 1 SCR 688.

6. In Faguna Kanta Naths case, the appellant was tried for an offence under S. 165A of the Penal Code for having abetted the commission of an offence by an officer. The said officer was acquitted on the ground that no offence under S. 161 was committed. Consequently, the Court held that appellants conviction for the offence of abetment was not maintainable.

7. This case is referred to in Jamuna Singhs case, (AIR 1967 SC 553) and it is held that "it cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The question of the abettors guilt depends on the nature of the act abetted and the manner in which the abetment was made. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit. the offence. It is not necessary for the offence of abetment that the act abetted must be committed. It is only in the case of a person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fail when the p