JUDGMENT

THOMMEN, J.:—The appellant - the Union of India challenges the judgment of the Allahabad High Court setting aside the revised findings of the General Court Martial (the GCM) and the sentences imposed, as confirmed by the Order of the competent authority dated 29-8-1986, in respect of the present respondent, J. S. Brar, who was a Major in the Indian Army until he was cashiered by the aforesaid Order. Allowing the Civil Misc. Writ Petition No. 9319 of 1988, the High Court by the judgment under appeal found that sufficient opportunity was not given to the respondent (also referred to as the accused) to cross-examine witnesses summoned after the order of revision or to let in fresh evidence to rebut their evidence. The High Court, however, found that the relevant provisions of the Army Rules, 1954 (the Rules) has been sufficiently complied with and there was no defect in the investigation of the case. So stating, the High Court, without quashing the proceedings, directed reconstitution of the GCM so as to afford a fresh opportunity to the accused to cross-examine the witnesses examined after the order of revision as well as let in fresh evidence on his behalf to rebut their evidence.

2. The accused was charged with the offence punishable under S. 69 of the Army Act, 1950 (hereinafter referred to as the Act) read with Section 379 of the Indian Penal Code. Two charges were framed against the accused in respect of articles alleged to have been stolen on 27-9-1983 and 9-2-1984 from the Department of Salvage. On 14-2-1985, the accused was found guilty of charge No. 2 relating to the incident of 9-2-1984 and was cashiered and sentenced to one year of rigorous imprisonment. In respect of charge No. 1 relating to the incident of 27-9-1983, the accused was acquitted. The Confirming Authority, however, ordered, under Section 160 read with Rule 68, revision of the findings of the GCM for recording fresh evidence and reconsideration.

3. Subsequent to the order of the Confirming Authority, the GCM was again constituted and proceedings commenced against the accused. Additional evidence was taken in terms of Section 160 read with Rule 68 by examining Brig. S. C. Chatrath, Capt. Raghunandan, Shri Bhojraj and others. On examination of these witnesses, the GCM found the accused guilty of both the charges and sentenced him to be cashiered and to suffer rigorous imprisonment for one year. The Confirming Authority confirmed the findings and sentences rendered by the GCM by Order dated 29-8-1986. The accused thereupon filed a petition before the Government of India under Section 164(2) of the Act. The Government of India rejected the petition vide Order dated 25-1-1988. These orders confirming the findings and sentences against the accused were challenged by him successfully in the High Court in the writ proceedings from which the impugned judgment arises.

4. The Additional Solicitor-General, Mr. V. R. Reddy, appearing for the Union of India, submits that the High Court was wrong in stating that sufficient opportunity was not given to the accused to cross-examine witnesses or to let in fresh evidence on his behalf. A number of witnesses, he says, have spoken in clear terms to the guilt of the accused. Additional evidence was let in as permitted by the Act and the Rules and as required by the order of revision. All such witnesses were allowed to be cross-examined in terms of relevant provisions of the Act and the Rules. Apart from the retracted confession of a co-accused or the testimony of certain witnesses, referred to by the defence as accomplices, there was ample independent evidence to fully support the findings reached by the GCM.

5. Mr. Jagdev Singh Manhas, appearing for the accused, however, submits that the only evidence against the accused was the retracted confession of Pradhan, accused No. 4, and the evidence of certain accomplices or co-accused, such as PWs. 1, 2, 3 and 19. He further submits that Pradhans confession was obtained by in