Iqbal Ahmed Ansari, J.

1. Aggrieved by dismissal of his writ petition, Civil Rule No. 139, 1997, by judgment and order, dated 22.12.2004, the writ petitioner is, in appeal, before us.

2. We have heard Mr. R.D. Lall, learned Counsel for the appellant, and Mr. H. Rahman, learned Assistant Solicitor General of India.

3. While working, in the Indian Army, as a sepoy of 1st Battalion of the Bihar Regiment, the appellant was taken into military custody on 25.4.1995 and tried by Summary Court Martial on the charge that on 25.4.1995, while on active service, he had struck, with a stick, on the head of Subedar Lalan Prasad Singh of the same regiment, at Boro Bazar, and committed thereby an offence punishable under Clause (a) of Section 40 of the Army Act, 1950. On the ground that the appellant had pleaded guilty to the charge, framed against him, at his trial, the appellant was, on 6.5.1995, held guilty of the charge, framed against him, under Section 40(a) of the Army Act, which makes use of criminal force to the superior officer liable to punishment. The appellant was accordingly convicted by the Summary Court Martial and sentenced to undergo rigorous imprisonment for five months and to be dismissed from service. The appellant did not prefer any statutory appeal against his conviction and/or the sentence, but he chose to challenge his conviction and the sentence, passed against him, by filing a writ petition under Article 226 of the Constitution of India.

4. Though a number of grounds were taken in the writ petition, the grounds, which were taken, at the time of hearing of the writ petition, assailing the conviction and punishment of the appellant, were not many. At the time of hearing, it was contended, on behalf of the appellant, before the learned Single Judge, that though the appellant was described to be in 'active service', he was, at the relevant point of time, not in 'active service'. It was also alleged, at the time of hearing of the writ petition, that the provisions of Section 102(1) of the Army Act had been violated inasmuch as the appellant was taken into custody, on 24.5.1995, at about 8.45 hours, but the investigation into the alleged offence was started only on 28.4.1995, i.e., after 48 hours of the appellant having been taken into custody, though the investigation ought to have been started within 24 hours of the appellant having been taken into custody. This delay, contended the appellant before the learned Single Judge, vitiated his trial. It was further contended, at the time of hearing of the writ petition, that the conviction of the appellant and the sentence, passed against the appellant, cannot be sustained inasmuch as no formal complaint had been lodged by anyone about the alleged offence and that the charge, framed against him, was misleading and incomplete. At the time of hearing of the writ petition, grievances were also raised on the ground that the copies of the relevant documents had not been furnished to the appellant and that he was denied opportunity to defend himself effectively by appointing a "friend" of his own choice. Grievances were further expressed by contending that there was non-compliance of the provisions of Sub-rule (7) of Rule 33 and also of the provisions of Sub-rules (1) and (2) of Rule 24 of the Army Rules, 1954.

5. While considering the scope of judicial review of the findings of a Court-Martial, it needs to be borne in mind that a Court-Martial is not subject to power of superintendence of the High Court under Article 227 of the Constitution of India. Though the proceedings of the Court-Martial fall outside the purview of Article 227, these proceedings are nonetheless subject to the overall, power of judicial review by the High Court under Article 226 of the Constitution. If a Court-Martial has been properly convened, there is no challenge to its constitution and if the procedure, which it followed, was in accordance with the procedure prescribed by the Army Act and the Army Rul