The main legal point established is that the trial by summary Court Martial must comply with the mandatory provisions of the Army Rules, and failure to do so can vitiate the trial.

( 1 ) THE petitioner while borne in the books of 13 Garhwal Rifles as a Rifleman holding the rank of Acting Lance Nayak was chargesheeted vide charge-sheet dated 18. 6. 1993 under Section 52 of the Army Act, 1950 for having committed theft in respect of Carbine, Machinegun 9 m. m. Regd. No. ZZ-1945, the property of the Government on the charge of JC 171974-X Sub. Devi prasad of the same Unit and on trial by the summary Court Martial by Lt. Col. R. C. Malik was awarded the sentence of rigorous imprisonment of three months in civil prison and dismissal from service vide order dated 25. 6. 1993. The petitioner moved an application dated 4. 10. 1993 for annulment of proceedings under Section 155 of the Army Act. The application came to be rejected by General Officer Commanding 24th Infantry Bn c/o 56 A. P. O. vide order dated 1. 3. 1994.

( 2 ) THE sentence awarded vide order dated 25. 6. 1993 in summary Court Martial proceedings are sought to be quashed by means of this writ petition under Article 226 of the Constitution of india. A writ in the nature of mandamus directing the respondents to reinstate the petitioner in service with back wages and all consequential benefits is also sought for.

( 3 ) IT has been contended by the learned Counsel appearing for the petitioner that the Court martial proceedings are vitiated due to non-compliance with the mandatory provisions contained in Rules 22, 23 and 24 of the Army Rules. It has been submitted for the petitioner that the hearing of the charge by the Commanding Officer was conducted by Col. P. R. Bakshi but the petitioner was subsequently tried by Lt. Col. R. C. Malik in Court Martial. The settled law, proceeds the submission, is that the person who carried out, the proceedings under Rule 24 of the army Rules alone could try the accused by summary Court Martial. Trial of the petitioner in summary Court Martial by an officer other than Col. P. R. Bakshi was, submits the learned counsel, illegal.

( 4 ) FOR the respondents it has been submitted by Sri S. K. Rai that Lt. Col. R. C. Malik having taken over the charge from Col. P. R. Bakshi was competent to try the petitioner and mere fact that hearing of the charge was earlier conducted by Col. P. R. Bakshi the then Commanding officer will not vitiate that trial. It has been further submitted by Sri Ajeet Kumar Singh that the charge was heard by Col. P. R. Bakshi in presence of the accused petitioner and prosecution witnesses. Maj. Sajju Krishna, Sub. Mohan Singh, Company Havaldar and Maj. Dhiraj Singh were examined in presence of the petitioner and no illegality was committed in summary Court martial proceedings it is further submitted by the learned Counsel were forwarded to the next superior officer, Deputy Judge, Advocate General for his perusal as required under Rule 133 of the Army Rules and as such no exception can be taken to the proceedings of the impugned summary Court Martial.

( 5 ) I have given my anxious consideration to the submissions made at the Bar. Sub-rule (1) of rule 22 of the Army Rules provides that every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused and the accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence. Sub- rule (2) provides that Commanding Officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, in his discretion he is satisfied that the charge ought, not to be proceeded with. Sub-rule (3) of Rule 22 visualises that at the conclusion of the hearing of a charge, if the Commanding Officer is of the opinion that the charge ought to be proceeded with, he shall without unnecessary delay (a) Dispose of the case summarily under Section 80 in accordance with the manner and form in appendix III; or (b) refer the case to the proper superior militar