P. N. KIRPAL, J. ( 1 ) THIS judgment: will dispose of Criminal Writ Nos. 75 and 122 of 1981 and Civil Writ Nos. 2582/81 and 537 of 1082. In these petitions the challenge is to the validity of the Court Martial proceedings which were taken against the petitioners which resulted in orders being passed against them whereby the petitioners were reduced in rank, sentenced to rigorous imprisonment and ordered to be dismissed from service. ( 2 ) THE petitioners belong to the Intelligence Corps and on 24th February, 1979 were posted to 480 Infantry and Field Security Company which, at that time, was being commanded by Major S. R. Yadav and was stationed at Kota. ( 3 ) ON 24th February. 1979 an incident took place which culminated in the Court Martial proceedings being taken against the petitioners. Without going into the details of the incident it appears that all the petitioners were in an army one ton truck and were coming to the Unit area. It is admitted that the petitioners were coming back to the Unit from a Cinema Hall at abount 9 P. M. and that Net Ram, petitioner in C. W. No. 537 of 1982, was driving the truck. ( 4 ) ACCORDING to respondents at about the same time Major S. C. Pandit, while riding a motor-cycle, was approaching the gate of the Unit. It was alleged that Major Pandit noticed that the aforesaid army truck suddenly turned right towards the gate without giving any prior indication. Major Pandit is alleged to have approached the driver of the truck inorder to find out the particulars. It was further alleged by the respondents that Major Pandit, who was in civil dress, was surrounded by the petitioners who had got down from the truck. Major Pandit is reported to have told them that he was an army officer but he did not have his identity card. The petitioners are alleged to have prevented him from leaving the. place and they beat him up. At about the same time another person, one Mr. M. L. Mitthaliya, was passing that way and he heard painful and loud cries. He stopped near the gate and found a man was being beaten up by a group of 5-7 persons near the said gate. place and they beat him up. At about the same time another person, one Mr. M. L. Mitthaliya, was passing that way and he heard painful and loud cries. He stopped near the gate and found a man was being beaten up by a group of 5-7 persons near the said gate. The man who was lying on the ground was shouting that he should be saved and that his name was Major S. C. Pandit. There were some civilians who bad gathered outside the gate of the Unit and they are stated to have approached and questioned the persons who were beating Major Pandit. On this the beating is said to have stopped. Thereupon Major Pandit tried to start his motor-cycle to get away from the place but the motor-cycle did not start. Major Pandit was once again allegedly dragged inside the gate of the Unit by 4 or 5 army jawans. Thereupon Shri Mitthaliya went in search for help and contacted Major V. G. Kondalkar and Major S. M. Bakshi and narrated the entire incident to them. ( 5 ) IN the mean time Captain U. B. Singh of 480 Int and FS Coy came to the spot and recognised Major Pandit. He apologised for the misbehaviour of the petitioners. Thereupon A Major Pandit was medically checked by the Duty Medical Officer and it was found that he had multiple injuries on his person. Before going to the Medical Hospital for the said check-up Major Pandit had informed the superior military officers, namely, Lt. Col Surat Singh about the incident from the Div. Duty Officer Room. ( 6 ) THE petitioners have not denied that an incident did take place on 24th February, 1979 in which they and Major Pandit were involved. According to the petitioners, Major Pandit was intoxicated and he was abusing and misbehaving with the petitioners. On their asking him for his identity. Major Pandit was unable to show his identity card. While they were trying to establish Major Pandit s identity, it is alleged that he tried to run away on the motor-cycle. One of the petitioners thereupon remarked that the motor-cyclist was, probably a Pakistani Spy and he should be detained pending orders from the superior officers. In short, the petitioners denied having beaten Major Pandit and do not accept the correctness of the version of the incident as given by the respondents. One of the petitioners thereupon remarked that the motor-cyclist was, probably a Pakistani Spy and he should be detained pending orders from the superior officers. In short, the petitioners denied having beaten Major Pandit and do not accept the correctness of the version of the incident as given by the respondents. ( 7 ) ON 25th February, 1979 the petitioners were put under close arrest under orders of their Commanding Officer Major S. R. Yadav. On that very day, by orders of the G. O. C. , 18 Infantry. Division, a Staff Court of Inquiry was ordered to investigate into the circumstances under which criminal force was allegedly used in the aforementioned incident According to the petitioners they were not held guilty in the said Inquiry. On 3rd March, 1979 Major S. R. Yadav ordered the release of the petitioners. ( 8 ) ON 15th March, 1979 a further Inquiry was ordered into the aforesaid incident. The Staff Court of Inquiry then came to the conclusion that the petitioners had used criminal force and had beaten up Major S. C. Pandit in a heartless fashion and that disciplinary action should be taken against them. Major Pandit was also blamed by the said Staff Court of Inquiry for using abusive language to Net Ram, the driver of the aforesaid army vehicle, for which disciplinary action was also taken against him. ( 9 ) ON 15th May, 1979 all the petitioners were attached to 2 Bihar. The Commanding Officer of the petilioners, on being so attached to. 2 Bihar, was Li. . Col. D. P. Singh According to. the respondents action was thereupon taken by the said Lt. Col. D. P. Singh under Rules 22 and 23 of the Army Rules. In accordance with the provisions of Rule 22, it is alleged by the respondents, he informed the petitioners of the charge against them and he heard them and gave them opportunity to cross-examine the witnesses. It is, of course, admited that at that time the charge was not reduced in writing. Thereupon on 27th June, 1979 Lt. Col. D. P. Singh ordered that summary of evidence should be recorded. This was ordered in terms of Rule" 22 (3) (c ). Thereafter the summary, of evidence was recorded. It appears that in December, 1979 the Commanding officer 2 Bihar ordered additional summary of evidence to be recorded. Thereupon on 27th June, 1979 Lt. Col. D. P. Singh ordered that summary of evidence should be recorded. This was ordered in terms of Rule" 22 (3) (c ). Thereafter the summary, of evidence was recorded. It appears that in December, 1979 the Commanding officer 2 Bihar ordered additional summary of evidence to be recorded. This was recorded on 28th December, 1979. ( 10 ) ON the basis of the summary of evidence which was so recorded the G. O. C. 18 Infantry Division reprimanded MajorPandit. .- ( 11 ) ON 8th July, 1980 the petitioners were chargesheeted. The charge-sheets were prepared in terms of Rules 28 to 30 of the Army Rules. By order dated 9th July, 1980 passed by the then General Officer Commanding 18 Infantry Division, the General Court Martial was convened. ( 12 ) THE Court martial proceedings commenced on 18th July, 1980 and concluded on 1st August, 1980. Ths General Court Martial gave the verdict of guilty and passed sentences against the petitioners. Naik Gian Chand was sentenced to suffer rigorous imprisonment for three months while Naik Net Ram, Clerk Gurmukh Singh and Sarwan Ram were sentenced to be reduced to the ranks. Thereupon the petitioers filed pre-confirmation petitions before the G. 0, C. lnchief Headquarters, Western Command, Simla under section 164 of the Army Act. ( 13 ) THE Officiating G. O. C. 18 Infantry Division, Kota, who had the jurisdiction and power to confirm the findings and sentence of the general Court Martial, confirmed the findings recorded agaist the petitioners. He, however was of the opinion that considering the gravity of the opinion of which the petitioners were found guilty of, the question of sentence should be re-considered by the General Court Martial Vide his order dated 30th September, 1980 the officiting G. O. C. ordered the re-convening of the General Court Martial. The court re-assembled and, after giving the petitioners full opportunity of being heard, enhanced the sentences against the petitioner vide their order dated 4th October, 1980. Gian Chand was sentenced to suffer rigorous iinprisoninent for three years and to be dismissed frorn. service; Sarwan Ram was sentemced to be reduced to the. The court re-assembled and, after giving the petitioners full opportunity of being heard, enhanced the sentences against the petitioner vide their order dated 4th October, 1980. Gian Chand was sentenced to suffer rigorous iinprisoninent for three years and to be dismissed frorn. service; Sarwan Ram was sentemced to be reduced to the. ranks, to suffer rigorous imprisonment for three years and to be dismissed from service; Net Ram was similariy ordered to be reduced to ranks, to suffer rigorous iniprisionment for two years and to be dismissed from service; and Gurmukh Singh was ordered to be reduced to the ranks, to suffer rigorous imprisonment for three years and to be dismissed from service. ( 14 ) THEREUPON the sentence awarded against the petitioners was confirmed by the Genral. Officer Commanding 18 Infantry Division on 11th November, 1980. The preconfirmation petition, filed by the petitioners was also. dismissed by him on 16th November, 1. 980. ( 15 ) APPEALS were then filed under section 164 (2) by the petitioners to the Chief of the Army Staff. The said appeals were rejected and thereupon the present writ petitions have been filed challenging the said orders. ( 16 ) BEFORE dealing with the various contentions urgwed before us, we may briefly refer to those provisions of the Act and the Rules which we relevant to this case. ( 17 ) IN the present case, before proceedings for the General Court Martial were held, a Court of Inquiry had been ordered. Chapter VI of the Army Rules deal with the Courts of Inquiry. According to Rule 177 (1), a Court of Inquiry is an assembly of officers who are directed to collect evidence and, if so required, to report with regard to any matter which may be referred to them. According to sub-rule (3), such a Court of Inquiry may be assembled by the Officer in Command of any body of troops. The procedure which is required to be followed by the Court of Inquiry is laid down in Rules 179 and 180, Sub rules (1), (5) and (6) of Rule 179 read as follows: "179. Procedure. (1) The court shall be guided by the written instructions of the authority who assembled the court. The instructions shall be full and specific and shall state the general character of the information required. They shall also state whether a report is required or not. Procedure. (1) The court shall be guided by the written instructions of the authority who assembled the court. The instructions shall be full and specific and shall state the general character of the information required. They shall also state whether a report is required or not. (5) The court may be re-assembled as often as the officer who assembled the court may direct, for the purpose of examining additional witnesses, or further examining any witness, or recording further information. (6) The whole of the proceedings of a court of enquiry shall be forwarded by the presiding officer to the officer who assembled the court. "rule 180 provides for the procedure which is to be followed by the court of inquiry when the character of a person subject to the Army Act is involved. The said rule enjoins upon the court of inquiry to give to such a person full opportunity of being present throughout the inquiry and of making any statement and giving any evidence which he may wish to make or give and of cross-examining any witness whose evidence in his opinion affects his character or military reputation and producing any witnesses in defence of his character or military reputation. According to rule 182, the proceedings of court of inquiry are not admissible in evidence. ( 18 ) FROM the aforesaid, it appears that the courts ot inquiries are primarily fact finding bodies which are i-cquired to collect evidence and to make a report thereon. Such courts of. inquiries are usually set up whenever an inckient occurs of which the true and the correct facts are not immediately discernible. In the present case the aforesaid incident had occurred on 24th February, 1979. The authorities had with them conflicting versions about the incident. It is in this background that the court of inquiry was constituted to give a report under Rule 177 of the said Rules. ( 19 ) CHAPTER V of the Rules contain provisions with regard to the investigation of charges and trial by Court Martial. Section I of the said Chapter provides for inyesligation of charges and remand for trial The important rules in this Chapter are Rules 22, 23, 24. 2. 8 and 30. Relevant portions of the said Rules are as under: "22. Section I of the said Chapter provides for inyesligation of charges and remand for trial The important rules in this Chapter are Rules 22, 23, 24. 2. 8 and 30. Relevant portions of the said Rules are as under: "22. Hearing of Charge (1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. 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. ( 20 ) THE 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. ( 21 ) AT the conclusion of the hearing of a charge, if the commanding officer is of 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 military authority; or (e) adjourn the case for the purposes of having the evidence reduced to writing; or (d) if the accused is below the rank of warrant officer, order his trial by a summary court-martial. ( 22 ) PROVIDED that the commanding officer shall not order trial by a summary court-martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-matrial for the trial of the alleged offender unless either: (a) the offence is one which he can try by a summary court-martial without any reference to that officer; or (b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. ( 23 ) PROCEDURE for taking down the summary of evidence. ( 23 ) PROCEDURE for taking down the summary of evidence. (1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing the evidence of the withnesses who were present and gave evidence before the commanding officer, whether against or tor the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. . ( 24 ) REMAND of accused. (1) The evidence and statement (if any) taken down in writing in pursuance of rule 23 (hereinafter referred to aand the "summary of evidence") shall be A considered by the commaading officer, who thereupon shall either: (a) remand the accused for trial by a court-martial; or (b) refer the case to the proper superior military authority; (c) if he thinks it desirable, re-hear the case and either dismiss the charge or dispose of it summarily. (2) If the accused is remanded for trial by a court-martial, the commanding officer shall without unncoessary delay either assemble a summary court-martial (after referring to the officer empowered to convene a district court martial or on active service as summary general court-martial when such referee is necessary) or apply tothe proper military authority to convene a court-martial, as the case may require. 28. Charge-sheet and charge. (1) a charge-sheet shall contain the whole issue or issues to be tried by a court-martial at one time. (2) A charge means an accusation contained in charge-sheet that a person subject to the Act has been guilty of an offence. (3) A charge-sheet may contain one charge or several charges. 30. Contents of charge.- (l) Each charge shall state one offence only and in no case shall an offence be described in the alternative in the same charge. (2) Each charge shall be divided into two parts (a) statement of the offence; and (b) statement of the particulars of the act, negleet or omission constituting the offence The particulars shall state such circumstances respecting the alleged oftence as will enable the accused to know what act neglect or omission is intended to be proved against him as constituting the offence. " Section 2 of the said Chapter sets out the rules containing provisions regarding the convening of the general and the district courts martial and the procedure tor trial before the said courts as well as provides tor the imposition of the sentences upon the findings being given by the courts. The procedure which is required to be followed after the sentence has been awarded by the court is also contained in the said part of Chapter V. 20. At this stage it is not necessary to refer to various provisions of the Act except to notice that provisions regarding the arrest and proceedings before- trial are provided for in sections 101 to 107 of Chapter IX of the Act.- Chapter X of the Act provides for the convening of the courts martial and the powers of the said courts, Procedure which is required to be followed by the court-martial is laid down in sections 128 to 152 of Chapter XI Section 153,occurring in Chapter XII. provides that finding and sentence of a court-marital is not valid unless it is confinned. The other sections in the said Chapter contain provisions regarding the authority which can confirm the sentences and the finding and also provides for revision of finding or sentence. This power for the revision of the finding or sentence is contained in Section 160, which reads as follows :. "160. Revision of finding or sentence (1) Any finding or sentence of a court-martial which requires confirmation may be once revised by order of the confirming authority and on such revision, the court, if so directed by the confirming authority, may take additional evidence. (2) The court, on revision, shall consist of the same officers as were present when the original decison was passed, unless any of those officers are unavoidably absent. (3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the court shall proceed with the revision, provided that, if a general court-martial, it still con- sists of five officers or if a summary general or district court-martial. of three officers. " 21. Appearing oil behalf of petitioner Gurmukh Singh, in Civil Writ No. 2582 of 1981, Shri Rameshwar Sharma first contended that the aforesaid Rule 22 of the Army Rules had been violated. The only averment in the petition in this behalf is contained in paragraph 6. of three officers. " 21. Appearing oil behalf of petitioner Gurmukh Singh, in Civil Writ No. 2582 of 1981, Shri Rameshwar Sharma first contended that the aforesaid Rule 22 of the Army Rules had been violated. The only averment in the petition in this behalf is contained in paragraph 6. In the said paragraph it is urged that "under rule 22 of the Army rules the Commanding Officer was bound to hear the charge and to give full opportunity to the petitioner to present his defence. The entire trial against the accused persons was held in violation of the provisions of Army Act and Army Rules," In tile earlier part of tile said paragraph it was stated that a summary of evidence was ordered against all the petitioners without observing the mandatory provisions of the said rule. The aforsaid averment of the petitioner is, of course, denied by the respondents in the reply-affidavit of Captain P. Bhatnagar, filed on behalf of the respondents. According to Capt. Bhatnagar s affidavit the provisions of Army Rule 22 were fully observed before recording the summary of evidence. 22. In our opinion the averment of the petitioner lack in. material particulars. The submission on behalf of the petitiner is very general and vague. It is not stated as to which particular step required to be taken under Rule 22 was not taken. A vague averment contained in para 6 of the writ petition has been generally denied by Capt. Bhatnagar in his affidavit. No rejoinder to the affidavit of Capt. Bhatnagar has been filed on behalf of the petitioner. The petitioner s counsel has not been able to give us any reason as to why the averment contained in Capt. Bhatnagar s affidavit should not be accepted. it was for the petitioner to have given details in order to substantiate his allegation. The petitioner has failed to do so. In these circumstances, we are unable to come to the conclusion that there is any merit in the said submission of the learned counsel. 23. Shri Sharma then contended that one Major Gen. K. K. Nanda was theGeneral Officer Commanding, 18 Infantry Division. According to the learned counsel it is only he who was competent to confirm the verdict and findings given by the general court, martial. In actual fact the said findings were confirmed by respondent No. 4, Brig. J. K. Kohli. 23. Shri Sharma then contended that one Major Gen. K. K. Nanda was theGeneral Officer Commanding, 18 Infantry Division. According to the learned counsel it is only he who was competent to confirm the verdict and findings given by the general court, martial. In actual fact the said findings were confirmed by respondent No. 4, Brig. J. K. Kohli. The contention of the learned counsel is that Brig. Kohli was lower B in rank to Major Gen. Nanda (respondent No. 3) and, therefore, he had no authority to confirm the findings and sentence passed by the general court martial. 24. There is no merit in the aforesaid contention. Section 154 of the Army Act provides that the findings and sentences of the general court martial may be confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government. In the aforementioned reply-affidavit of Capt. Bhatnagar it had been stated that "the General Officer Commanding 18 Infantry Division or- any incumbent officiating on his behalf is holding warrant A3 duly signed by the Secretary of Ministry of Defence on behalf of the Central Government which is the authority for confirming the findings and the sentence of the General Court Martial. " The petitioner has not denied this averment. In this view of the matter the only conclusion which would flow is thatas at the relevant time respondent No. 4, Brig. J. K. Kohli, was admittedly officiating as the General Officer Commanding, 18 Infantry Division, it is only he who had the jurisdiction to confirm the finding and sentence of the General Court Martial. ( 25 ) IT was lastly contended by Shri Sharmathat respondent No. 4 could not himself enhance the sentence nor direct the Court Martial to enhance it. According to the learned counsel any direction which is given by the General Officer Commanding to the Court Martial in this behalf is a fetter on the discretion and judicial function of the Court Martial. ( 26 ) THE aforesaid contention of Shri Sharma is squarely met by the express provisions of Section 160. Sub-section (1) of Section 160 gives the power to the confirming authority, which power can be exercised only once, to direct the court martial to revise its order. ( 26 ) THE aforesaid contention of Shri Sharma is squarely met by the express provisions of Section 160. Sub-section (1) of Section 160 gives the power to the confirming authority, which power can be exercised only once, to direct the court martial to revise its order. The court martial may be direct- ed to review the order on the evidence already on record or it mayalso be directed to take any additional evidence. On such direction being received by the General Court Martial it is could to reconsider its order. On reconsideration of the caried order the General Court Martial may either confirm its Original finding and sentence or it may vary the same. There being no challenge to the provisions of section 160, a plain reading of the same shows that the confirming authority was within its rights to direct the General Court Martial to revise its finding and sentence. There was no direction that the sentence must be enhanced. The General Court Martial, after it re-considered the matter, was l rce to return the original finding. In the prcsenl case. ol course, it chose not to do so. We are unable to appreciate the argumeni. that a direction which is given to revise the sentence should be considered as a fetter on the exercise of its powers by the General Court Martial. An order under section 160 is a sort of an application for review which is made by the confirming authority. The statute, there- upon, casts a duty on the General Court Marital to re-consider its earlier finding or sentence, but the General Court Martial is not obliged to change its earlier view. In our opinion, the Court Martial, when it is reconsidering the iiiatter in pursuance if a direction having been is -. ued under SL-ction 160. has to apply its mind to the case independently, uninflueneed by any observations which mav have been niade in the direction given by the conlirming authority. ( 27 ) SHRI Nayar, on behalf of LINaik Gian Chand in Criminal Writ No. 75 of 1981. contended that the convening authority cannot be appointed as the confirming authority. His submission was that the convening authority controls the General Court Marial and therefore, he camnot be the confirming authority. ( 27 ) SHRI Nayar, on behalf of LINaik Gian Chand in Criminal Writ No. 75 of 1981. contended that the convening authority cannot be appointed as the confirming authority. His submission was that the convening authority controls the General Court Marial and therefore, he camnot be the confirming authority. in this connection Shri Nayar referred to section 160 which gives the power to the eonfirming authority to require the General Court Martial to revise iis finding or sentence. According to the learned counsel the Rules and the Act do not envisage that the same officer can be appointed both as the convening authority as well as the controlling authority. ( 28 ) ACCORDING to section 109 a General Court Martial can be convened by the Central -Gover. timent or the Chief of Army Staff or by any officer empowered in this behalf by warrant of the Chief of Army Staff. Section 154 provides that the findings and sentences of the General Court Martial maybe confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government. Neither the Act nor the Rules prohibit the same officer from being appointed both as the convening authority as well as the confirming authority. Under section 109 the power to convene can be delegate by the Chief of Army Staff whereas under rule 154 the power to confirm can be delegated by a warrant issued on behalf of the Central Government. We do not see any impropriety in the same officer being empowered under section 109 as well asunder section 154. Just as under the Central Civil Services (Classification, Control and Appeal) Rules it is the disciplinary authority who initiates the disciplinary proceedings and subsequently, after the enquiry is completed, also imposes the penalty, similarly in the present case. it is the commanding officer who has been empowered to convene the General Court Martial as well as to act as the confirming authority. Furthermore, the reading of the two sections, namely, sections 109 and 154, would show that the said sections expressly postulate the Central Government itself being the convening authority as well as the confirming authority. Therefore, if the Central Government could be both the convening authority as well as the confirming authority, we see no reason why -one officer cannot be delegated with both the powers. Therefore, if the Central Government could be both the convening authority as well as the confirming authority, we see no reason why -one officer cannot be delegated with both the powers. It is not disputed that in the present case by warrants issued on 16th April, 1977 by. the Chief of Army Staff the officer, not being under the rank of a Field Officer, commanding 18 Infantry Division has been appointed, as the convening officer. Similarly by another warrant dated 25th April, 1977 issued by the Central Government the same officer has been authorised to be the confirming authority. To our mind these powers have been properly delegated under sections 109 and 154 of the said Act. Merely because under section 160 the confirming authority has the right to ask the General Court Martial to re-consider the finding and or sentence which it may have given or passed it cannot be a ground for coming to the conclusion that the confirming authority and the convening authority cannot be one and ths same person. ( 29 ) SHRI Nayar next contended that the petitioner had filed, a pre-confirmation petition under section 164 (1) but the same was not considered prior to confirmation of the sentence and the finding. We do not find any merit in this contention. In paragraph 17 of the affidavit in reply of Major B. K. Nagpal, it has been categorically stated that the preconfirmation petition was considered and the authority found no merit therein. No rejoinder has been filed controverting this averment. We see no reason to disbelieve the affidavit filed on behalf of the respondents in this behalf. There is also no merit in the contention that on 30th September, 1980 the Officiating General Officer Commanding, 18 Infantry Division could not order the revision of thesentence without waiting for the result of the confirming authority on the aforesaid preconfirmation petition. The power under section 160 is to be exercised before the confirmation of the sentence. This can only be exercised by the confirming authority asking for revision of the finding and /or sentence to be gone into by the General Court Martial before the pre-confirmation petition is considered and decided upon. The occasion for considering the pre-confirmation petition wilt arise only after the General Court Martial has forwarded its report on re-consideration of the matter. This can only be exercised by the confirming authority asking for revision of the finding and /or sentence to be gone into by the General Court Martial before the pre-confirmation petition is considered and decided upon. The occasion for considering the pre-confirmation petition wilt arise only after the General Court Martial has forwarded its report on re-consideration of the matter. If the pre-confirmation petition has first to be decided, as has been contended by the petitioner, there would never be any occasion for the confirming authority to-exercise its powers under section 160. ( 30 ) IT, was next contended by Shri Nayar that after the General Court Martial had been asked to revise its sentence, it erred in coming to a different conclusion on the same set of facts. According to the learned counsel the earlier punishment which had been awarded by. the General Court Martial was much less in severity than the sentence which it imposed subsequently. It is quite true that after re-consideration the General Court Martial has passed a much harsher senfence. Section 160 empowers the General Court Martial to reconsider the same set of facts and, if they are so minded, to come to a different conclusion. This is what has happened in he present case. On the same set of facts which existed earlier The General Court Martial has now felt, after taking into account the various facts and circumstances which were on the record, that the earlier punishment which it had sought to impose was too lenient and, therefore, it enhanced the sentence. In our view there can be no judicial review of such a decision which has been arrived at. In the absence of any plea of mala rides against the members of the General Court Martial having been taken or proved, we are of the opinion that it is essentially for the General Court Martial to consider as to what sentence should be imposed. A writ court, in our opinion, would not be exercising its discretion properly in interfering with a sentence which is passed by a duly constituted Generatl Court Martial. ( 31 ) MR. Uma Dutt. appearing on behalf of Sarwan Ram. sought to contend that there was no evidence against him) which would show that he used any criminal force against Major S. C. Pandit. ( 31 ) MR. Uma Dutt. appearing on behalf of Sarwan Ram. sought to contend that there was no evidence against him) which would show that he used any criminal force against Major S. C. Pandit. The submission of the learned counsel is that the Judge advocate erred, while summing up. in not bringing to the notice of the General Court Martial that no prosecution witness had deposed against the petitioner having used force against Major Pandit. ( 32 ) THE perusal of the Court Martial proceedings, however. shows that the submission of the learned counsel is not correct. P. W. 2 Major S. C. Pundit has stated during the Court Martial proceedings that the petitioner was also one of the person s who was present at the scene of incident. and who had given him a beating. It is not for this Court to consider whether this evidence of Public Witness 2 was sufficient or not or whether it should have been believed or not. All that we have to look into is whether there was any evidence on record to connect the petitioner with the offence which is alleged to have been committed. The testimony of Public Witness 2 clearly brings out the part played by the petitioner in the said incident. In view of the said testimony, the Judgeadvocate could not have stated that the evidence did not show that the petitioner did not use any force against Major S. C. Pandit. We accordingly do not find any merit in the aforesaid contention of thand learned counsel. Appearing on behalf of Net Ram in Civil Writ No. 537 of 1982, the first contention which was raised by Shri Murgai was that on. 3rd March, 1979 the Commanding Oflicer had dismissed the charge against the petitioner. It was submitted that on 25th February, 1979 the petitioners were put under close arrest. On 3rd March, 1979 the petitioners were released from arrest under orders of the Commanding Officer. From this the learned counsel wants us to deduce that the Commanding Officer dismissed the charges against the petitioners. The facts of the case, as noted hereinabove, however, clearly show that the averment of the petitioner in this behalf is clearly unfounded. It is no doubt true that the petitioners were put under close arrest on 25th February, 1979. On that. The facts of the case, as noted hereinabove, however, clearly show that the averment of the petitioner in this behalf is clearly unfounded. It is no doubt true that the petitioners were put under close arrest on 25th February, 1979. On that. day a court of inquiry was held and it appears that the report was not against the petitioners. Under these circumstance the Commanding Officer obviously thought it proper to release the petitioners. But what is to be borne in mind is that at this stage there was no charge which had been preferred against the petitioners. On 15th March. 1979 the second court of inquiry was ordered. It was only thereafter that action was taken under Rule 22 and recording of summary of evidence was ordered. Before the holding of the second court of inquiry in before the ordering of the summary of evidence being recorded, there could be no question of there being any charge against the petitioner which the Commanding Officer could be said i. o have dismissed. On 3rd March. 1979 no charge had been framed against the petitioners. The perusal of the record also does not disclose any order having been passed by the Commanding Officer on 3rd March, 1979 dismissing any charge against the petitioners. ( 33 ) SHRI Murgai then contended that Rule 22 postulates the handing over of acharge-sheet containing acharge to the petitioner at the time when the Commanding Officer has to apply his mind under sub-rule (1) of Rule 22. Referring in this behalf to Rule 28 it was contended that the charge which is referred to in Rule 22 had necessarily to be a charge contained in the charge-sheet, and no charge-sheet had been handed over to the petitioner at the stage when action was ordered to betaken under Rule 22. ( 34 ) THE word "charge" occuring in Rule 22 (1), to our mind, means nothing more than an "accusation" against a person. Rule 22 (1) provides for the holding of, what can be called, a preliminary inquiry. Though witnesses are examined, Rule 22 (1) does pot. require the statement of the witnesses being recorded in writing. The hearing at this stage is only to help the Commanding Officer to decide as to what future course of action he should adopt. If after the hearing, the Commanding. Though witnesses are examined, Rule 22 (1) does pot. require the statement of the witnesses being recorded in writing. The hearing at this stage is only to help the Commanding Officer to decide as to what future course of action he should adopt. If after the hearing, the Commanding. Officer feels that there is no evidence that an accused has committed an offence then, under sub-rule (2), he can dismiss the charge. It is only under sub-rule (3) of Rule 22 that the Commanding Officer, if he is of the opinion that the charge ought to be proceeded with, takes further action postulated by clauses (a), (b), (c) or (d)of the said sub-rule: One of the orders which can be passed by the Commanding Officer under rule 22 (3) (c) is to adjourn the case for thg purposes of the evidence being reduced in writing. This obviously means that prior to the passing of the said order the evidence which is heard by the Commanding Officer under rule 22 (1) is not recorded in writing. It is only when the commanding Officer decides that the charge should be proceeded with and orders recording of the evidence that procedure for taking down the summary of evidence, as provided by rule 23. is followed. An accused is remanded for trial by Court Martial only after A the summary of evidence is considered by the Commanding, Officer. It is thereupon that a formal charge-sheet is prepared containing the charge against the petitioner. This is prepared under rule 28. Sub-rule (1) of rule 28 clearly shows that the charge-sheet is prepared so as to contain the issues which are to be tried by a Court Martial. It is no doubt true that under sub-rule (2) of rule 28 it is stated that a charge means an accuation contained in the charge-sheet, but it must be borne in mind tlhat the charge-sheet is prepared only when the accused is required to be tried by a Court Martial, This stage arises after the summary of evidence has been recorded under rule 23. The petitioner, therefore, cannot take the support of subrule ( 2) of rule 28 and contend that. even at the stage of hearing of the charge under rule 22. (l ). there should be a written charge which should be handed over to the accused. The petitioner, therefore, cannot take the support of subrule ( 2) of rule 28 and contend that. even at the stage of hearing of the charge under rule 22. (l ). there should be a written charge which should be handed over to the accused. At the stage of rule 22 (1) the accused is only required to be informed about the charge or the accusation against him. and opportunity has to be given to him to cross-examine any witness or to call any witnesses and make statements in his defence. In the present case it has been averred by the respondents that the procedure laid down in rule 22 (1) has been followed. We see no reason to disbelieve this averment. We. therefore, hold that the word "charge" occuring in rule 22 does not mean charge as contained in the charge-sheet. ( 35 ) SHRI Murgai then contended that the Commanding Officer for all proceedings prior to the ordering of the Court Martial could only be that Commanding Officer who was there at the. time of the commission of the offence. According to the learned counsel it was only the Commanding Officer of 480 1. and F. S. Coy. , where the petitioner was deployed at the time of the offence, who could order the recording of summary of evidence and for the trial by Court Martial. ( 36 ) THE word "commanding Officer" has been defined in section 3 (v) of the Army Act as follows : - commanding Officer , when used in any provision of this Act. with reference to any separate tion of the regular Army or to any department thereof, means the officer whose duty it is under the regulations of the regular Army, or in the absence of any such regulations, by the custom of the service, to discharge with respect to that portion of the regular Army or that department, as the case may be, the functions of a commanding officer in regard to matters of the description referred to in that provision. " By eliminating the unnecessary portion, the said definition would read. as follows: commanding Officer when used in any provisioa of this Act with reference to any separate portion portion of the regular Army. . . . . . . . . . . . means the officer whose duty it is. . . . . . . . " By eliminating the unnecessary portion, the said definition would read. as follows: commanding Officer when used in any provisioa of this Act with reference to any separate portion portion of the regular Army. . . . . . . . . . . . means the officer whose duty it is. . . . . . . . . . . . . to discharge with respect to that portion of the regular Army. . . . . . . . ths functions of a commanding officer in regard to matters of the description referred to in that provision. "the commanding officer is of a portion of a regular Army or of a Department. He will be the commanding officer of all those persons who are attached to that portion of the regular Army or the Department. As long as the petitioner was attached to 480 I and F. S. Coy. , it was the commanding officer of that unit who was the petitioner s commanding officer. As long as the petitioner was attached to the said unit, the powers ot commanding officer under the Rules and the Act could only be exercised by Major Yadav. The petitioners, however, were attached to the 2 Bihar on 15th May, 1979. Summary of evidence was ordered to be recorded on 27th June, 1979. Action under rule 22 (1) was taken by the Commanding Officer of the 2 Bihar. At that time the petitioners were net serving in 480 I and F. S. Coy. It could not be, and the Rules do not contemplate, that a person has two different commanding officers. If the contention of the learned counsel is accepted it would mean that even after the petitioners had been derived and attached to 2 Bihar they had two commauding officers, namely, the commanding officer of 2 Bihar, in terms of action 3 (v) of the Act, and Major S. R. Yadav who was the commanding officer of 480 I and F. S. Coy. at the time when the offence was committed. Such a situation is not only no , spelt out from the Rules but is also illogical. This contention of the petitioner has, therefore, to be rejected. ( 37 ) IT was then contended by Shri Murgai that that commanding officer, namely, Lt. Col. D. P. Singh of 2 Bihar. at the time when the offence was committed. Such a situation is not only no , spelt out from the Rules but is also illogical. This contention of the petitioner has, therefore, to be rejected. ( 37 ) IT was then contended by Shri Murgai that that commanding officer, namely, Lt. Col. D. P. Singh of 2 Bihar. had no jurisdiction to act under rule 24 (l) (a) and remand the petitioners for trial by a Court Martial. It is not necessary to go into the question as to whether the commanding officer had jurisdiction to remand the petitioner to trial by Court Martial because, in the present case, the commanding officer did not take action under rule 24 (l) (a ). According to the respondents, after considering the evidence and the statements which had been recorded under rule 23, the commanding officer, 2 Bihar acted under rule 24 (l) (a) and referred the case to superior military authorities. The perusal of the Court Martial record also discloses that Lt. Col. D. P. Singh, on 30th June, 1979. applied for the sanction of the General Officer Commanding, 18 Infantry Division for trial by General Court Martial against the petitioners. Thereupon it was the G. O. C. . 18 Infantry Division, Major General K. K. Nanda who passed orders on 9th July, 1979 convening the General Court Martial, after the formal charge-sheet had been drawn up on 8th July. 1979. ( 38 ) IT was then contended that Army Rule 35 had been violated inasmuch as, it was alleged, the prosecution had not given to the, petitioner a notice of intention of a joint trial which was proposed to be held. In our view it is not open to the petitioner to raise this contention before us. The chargesheet was given to the petitioner sufficiently in advance before the commencement of the trial. The petitioner must have known therefrom that a joint trial was going to take place but he never objected to it. Even during the trial the petitioner did not object before the Court and did not contend that rule 35 had been violated. ( 39 ) WE may also,, at this stage, refer to the provisions of Rule 55. Under sub-rule (1) of rule 55. Even during the trial the petitioner did not object before the Court and did not contend that rule 35 had been violated. ( 39 ) WE may also,, at this stage, refer to the provisions of Rule 55. Under sub-rule (1) of rule 55. after the pleas of the accused are recorded, the court is obliged to ask the accused whether he wishes to apply for adjournment on the ground that any of the rules relating to procedure before trial had not been complied with and that he had been prejudiced thereby. or on the ground that he had not had sufficient opportunity for preparing his defence. After the pleas of the accused had been recorded, the following question was put to each one of them by the Court Martial: "do you wish to apply for an adjournment. on the ground that any of the rules relating to procedure before trial have not been complied with and that you have been prejudiced thereby or on the ground that you had not had sufficient opportunity for preparing your defence. "all the accused answered in the negative. None of them applied for adjournment. None of them made any grievance about any rule not having been complied with or their not having had an opportunity as envisaged by the rules. Even if. therefore, we were to assume that the various rules are to be interpreted in the manner in which the petitioners counsel wants us to interpret, we are of the opinion that the petitioners. having themselves not applied for adjournment, when they had an opportunity for doing so, and not having complained about the violation of any rules, they would not be entitled to come to a court of equity, by way of a petition under Article 226 of the Constitution, and ask for relief on that ground. The answer to the aforesaid que. stion clearly shows that, according to the accused themselves, the rules had been complied with and the procedure before the trial had been followed and that no prejudice: had been caused to them. In our view the petitioners, after having been awarded the sentence, cannot now be permitted to cry "wolf". The petitioners were satisfied with the procedure which had been followed till the start of the Court Martial proceedings. If they had raised any objections then at that point of time remedial measures could have been taken. In our view the petitioners, after having been awarded the sentence, cannot now be permitted to cry "wolf". The petitioners were satisfied with the procedure which had been followed till the start of the Court Martial proceedings. If they had raised any objections then at that point of time remedial measures could have been taken. If any rule had not been complied with the Court Martial might have directed for the defect to be removed. Having taken their chance before the Court Martial without raising any contention about the non-compliancc of the rules, which is now raised before us, it must be presumed that. they abandoned their rights, if any. to have a procedure procedure being followed and they cannot now be allowed to agitate the question or raise a contention which ought to have been raised at the very start of the Court Martial proceedings. In other words, by their conduct the petitioners are estopped from comending before us that any of the rules relating to procedure before the Court Martial trial had commenced had in any way been violated or not complied with, ( 40 ) IT was lastly contended by Shri Murgai that there was no evidence to implicate his client with the offence. We are unable to agree with this contention. We have gone through the testimony of Public Witness 2 before the Court Martial. He has clearly implicated the petitioner. According to him Not Ram had taken part in the incident which occurred on the fateful evening. As we have already observed, it is not for us to go into the question of whether the evidence is sufficient or not. All that we have to see is whether some evidence implicating the petitioner exists on the record. We are satisfied that such evidence docs exist. The Court Martial has believed that evidence and we cannot sit in judgment over that. ( 41 ) NO other contention lias been raised before us by any of the counsel. ( 42 ) FOR the aforesaid reasons all the writ petitions are dismissed but with no order as to costs. ( 43 ) AS a result of the dismissal of their writ petitions two of the petitioners, namely, L/naik Gian Chand and Sarwan Ram, who are on bail, should surrender before the appropriate authorities on or before 31st March. 1983.