Alteration of charges during the course of delivering the judgment by a Court Martial without following the prescribed procedure and without notice to the accused vitiates the trial and renders the conviction and confirmation orders illegal.

The grievance of the petitioner is in respect of the order dated 12.9.96 of the District Court Martial in the case of the petitioner, whereby he has been sentenced to undergo rigorous imprisonment for a period of six months and has also been dismissed from service and the order of confirmation dated 8.11.96 is alleged to be highly illegal and without jurisdiction besides the same being arbitrary.

2. The petitioner was proceeded with for obtaining illegal gratification with a motive for procuring the enrolment of a person in between 18th to 20th September, 1996, and also for taking illegal gratification from another person on 19th September, 1996.

3. While the trial was going on, the petitioner came up before this Court regarding hardship in the proceeding when the petitioner was not being given proper opportunity of cross-examination and others in C.W.J.C. No. 2532 of 1996(R). The said petition was disposed of vide order dated 30.8.96 with some directions. After the conclusion of the Court Martial and the order dated 12.9.96 was passed, the petitioner came up before this Court in C.W.J.C. No. 3467 of 1996(R) on the ground that the charges which had been framed against the petitioner for the purpose of trial have been abruptly changed at the time of passing the judgment of conviction, which vitiated the whole trial as the petitioner did not get any opportunity when the charges have been varied. The above writ petition was disposed of giving opportunity to the petitioner to raise those points before the confirming authority. According to the petitioner, he raised those points before the confirming authority as per the direction of this court, but the confirming authority without giving any finding on the points being raised by the petitioner passed a cryptical one line order confirming the conviction and sentence imposed against the petitioner.

4. On going through impugned order of conviction, as contained in annexure-8, it becomes crystal clear that the dates on which illegal gratification was alleged to be taken by the petitioner have been changed and such change was made only at the time of passing of the judgment and not before that. In that view of the matter, it appears that the• respondents have committed great error of law.

5. As per statutory rules, Rule 50 of the Army Rules, 1954 runs as follows:-

"50. Amendment of charge. - (1) At any time during the trial, if it appears to the Court that there is any mistake In the name or description of the accused in the charge-sheet, the Court may amend the charge-sheet so as to correct that mistake.

(2) If, on the trial of any charge, 'it appears to the Court at any time before it has begun to examine the witness, that in the interests of justice any addition to, omission from, or alteration in, the charge is required, it may report its opinion to the convening authority, and may adjourn, and the convening authority may either direct the new trial to be commenced, or amend the charge, and order the trial to proceed with such amended charge after due notice to the accused."

6. This Rule 50 of the Army Rules is in consonance with the general provision of Section 216 of the Code of Criminal Procedure.

7. In the present case, on the face of it, there is alteration of charge and such alteration was made only at the time of delivering the judgment and not before that and, as such, such alteration was made without any notice to the accused and hence there is violation of Rule 50 of Army Rules on the face of it and such violation, definitely, vitiates the whole trial of Court Martial.

8. Mr. Trivedi, appearing for and on behalf of the respondents takes a preliminary objection regarding the maintainability of this writ petition. According to him, there is provision under Section 164 of the Army Act, 1950, when the petitioner could have filed appeal before the Central Government (Chief of the Army Staff). The said provision is not in the form of appeal, as is available under other Acts rather