MALAY SENGUPTA, J. ( 1 ) THIS case arises out of an application filed under Article 226 of the Constitution of India. ( 2 ) THE petitioner is an army officer of the rank of Colonel and was posted as Commanding Officer at 116, Engineer Regiment, with Headquarter, 17 Mtn. Arty. Brde. On certain allegations of lapses on his part charges with nine heads were framed against him on 24-6-1996 by the Commanding Officer (Respondent No. 3) and he was ordered by the General Officer Commanding (Respondent No. 4) to be tried by the General Court Martial. The Court Martial continued from, 1-7-1995 to 10- 11-1995 and ultimately on 10-11-1995 the Court Martial passed the judgment. ( 3 ) IN its judgment the Court Martial found the petitioner guilty with respect to four, out of nine charges and sentenced him to undergo rigorous imprisonment for eight months and also cashiered him. When the matter was pending before the authorities for confirmation of the order of conviction and sentence, the petitioner filed the instant writ petition on 11-12-1995. Immediately after passing of the order of the Court Martial, the petitioner was taken into custody. He sought for intervention of this Court and the Court by its order dated 13-12-1995 ordered for release of the petitioner on bail. ( 4 ) THE petitioner is still on bail and it is reported that during the pendency of this writ petition the authorities have confirmed the judgment, order of conviction and the sentence passed by the Court Martial. ( 5 ) AT the outset a petition was filed on behalf of the respondents raising certain preliminary objections over the entertain ability of the writ petition. The said preliminary objections were dealt with by this Court and was dismissed by its order dated 23-3-1996. ( 6 ) PRELIMINARY objections raised on behalf of the respondents against the admissibility of the writ petition, were dealt with by an order of this Court on 23-3-1996, as already noted. We may once again reproduce the same for the sake of convenience. The learned Counsel for the respondents contended that Army Tribunals like General Court Martial are exempted from application of the provision of Article 227 of the Constitution of India. We may once again reproduce the same for the sake of convenience. The learned Counsel for the respondents contended that Army Tribunals like General Court Martial are exempted from application of the provision of Article 227 of the Constitution of India. It is true that this Court cannot invoke the provision of Article 227 of the Constitution of India over such a Tribunal but the Court exercising extraordinary writ jurisdiction cannot remain a helpless spectator to the gross violation of human rights or of fundamental rights of any person, if caused in the grab of the provisions of the Army Act. The Court must rise to the occasion and come to the assistance of such a person even if he is a defence personnel and even if his case has been or is being dealt with by any Army Tribunal. In such cases the Court in exercise of its authority under Article 226 of the Constitution may interfere with the atrocities, complained of. Decision in Subhas Chandras case1, may be referred to. ( 7 ) THE respondent now contends that even if Article 226 of the Constitution is invoked it can at best be done after the party has exhausted all its alternative remedies. He referred to the provisions under Sections 153 and 164 of the Army Act as the course of alternative remedies. The decision in D. C. M. Chemical Employees case2, has been referred to in this context. It is a Single Bench judgment of the Delhi High Court Against it, decisions in V. Vallaswamys case, Dr. Ajay Singh Rawats case4 (at page 275), and S. N. Mukherjee v. Union of India, have been referred to for establishing that judicial review under Article 226 of the Constitution is permissible in spite of alternative remedy being provided under any Act. Though the cases of 1981 and 1985, as referred to above, relate to Police and Civil Administration, S. N. Mukherjees case of 1990 relates to Army Act. Thus judicial review of an order passed by any Army Tribunal is permissible. It would be worth noting that in the entire procedure for trial under Army Act there is no judicial authority to deal with the same at any stage starting from the trial till the confirmation of the sentence. This point was raised in Prithipal Singhs case6. Thus judicial review of an order passed by any Army Tribunal is permissible. It would be worth noting that in the entire procedure for trial under Army Act there is no judicial authority to deal with the same at any stage starting from the trial till the confirmation of the sentence. This point was raised in Prithipal Singhs case6. At page 1437 of the aforesaid decision it was suggested that the Army Act should be amended providing such a provision. But nothing has been done so far and the fate of Army personnel like that of the petitioner is left with the remedy available only under Section 153 or 164 of the Army Act. The petitioner, however, describes such provisions as lip sympathy, poor solace and meaningless ritual. ( 8 ) ANYWAY, we have agreed to make judicial review of the order by invoking the provision of Article 226 of the Constitution in such a case. Learned Advocate for the respondents, however, points out to the decisions in Subhas Chandra Sarkarts case (supra), R. S. Ghalwals case7, and S. N. Mukherjees case (supra) to suggest that while making judicial review the campus of the Court would be very much restricted and it would invoke its jurisdiction only where the authorities are found to have acted without jurisdiction or acted in excess of the jurisdiction or flouted the principles of natural justice or if there are errors apparent on the face of the record. ( 9 ) WE have already mentioned that nine heads of charges were framed against the accused and he was sent for trial by General Court Martial. We have also noted that the Presiding Officer of the General Court Martial exonerated the petitioner of five of the charges and held him guilty on account of rest of the four charges. For proper appreciation, those four charges and the gist of the finding of the Presiding Officer of the General Court Martial on those charges may be reproduced. ( 10 ) CHARGE number second was to the effect that the petitioner addressed a letter on 23-10-1993 to Major General K. C. Dhingra who was the G. O. C. of 17 Mtn. Division at that point of time, stating, It is brought forward for your information that all the S. R. Ts. ( 10 ) CHARGE number second was to the effect that the petitioner addressed a letter on 23-10-1993 to Major General K. C. Dhingra who was the G. O. C. of 17 Mtn. Division at that point of time, stating, It is brought forward for your information that all the S. R. Ts. procured from M/s. Dhariwal Steel (P) Ltd. , Calcutta have since been issued out for the construction of PD5. in the current working season. All those PD5. are likely to be completely ground applied by 30-10-1993. This information was projected to the head of the division knowing well that the said statement was false. This act constitutes offence u/s 57 (a) Army Act. ( 11 ) THE Presiding Officer of the General Court Martial, on assessment of oral and documentary evidence came to the finding that the statement was utterly false and that neither all the S. R. Ts. had been issued for construction nor it was possible to apply the said quantity of S. R. Ts. on ground within the stipulated date of 30-10-1993. He, therefore, held the charge to have been proved. ( 12 ) THE third charge was to the effect that on 30-11-1992 the petitioner made payment of about 2. 8 lakhs of rupees to a few firms towards repair of generators/alternators without getting ascertained the serviceability of those articles, after repairs, on physical examination. It was charged that such was done with intent to defraud and thereby an offence u/s 52 (f) Army Act was committed. ( 13 ) THE Presiding Officer of the General Court Martial assessed the oral and documentary evidence and held that some of the generators were not repaired properly and delivery of some of the generators were not even received back after repair at the time of payment being made. ( 14 ) THE eighth charge was to the effect that the petitioner with intent to defraud made payment of a sum of a little above Rs. 7, 000/- between 30-12-1992 and 22-7-1993 against supply of ATG stores knowing well that no such items were in fact received in the store of the said unit. This is an offence u/s 52 (f) Army Act. ( 15 ) THE Presiding Officer of the Court Martial assessed the evidence and held that no such items was received in the store. This is an offence u/s 52 (f) Army Act. ( 15 ) THE Presiding Officer of the Court Martial assessed the evidence and held that no such items was received in the store. The petitioner was made aware of this position on 9-6-1993 and in spite of that the petitioner made the payment as alleged and it was done with intent to defraud. ( 16 ) THE ninth charge is to the effect that there were losses/deficiencies of Defence Brick Stores in the regiment during the period between 1-11-1992 and 21-11-1993. Though the petitioner was aware about such losses/deficiencies, he omitted to report the said situation to the higher authorities. This lapse was in contravention of prevailing S. A. O. and was prejudicial to the good order and military discipline and it constituted an offence u/ s 63 Army Act. ( 17 ) THE Presiding Officer of the General Court Martial assessed the oral and documentary evidence in this respect and held that the deficiencies as alleged was there and it was brought to the notice of the petitioner on 9-6-1993, but the petitioner instead of performing his obligation to report the same, tried to make up the deficiencies by dubious means. ( 18 ) THE General Court Martial after holding the petitioner guilty with respect to four counts of charges as detailed above, sentenced the petitioner: a. to be cashiered, and b. to suffer rigorous imprisonment for eight months. ( 19 ) WHILE entering into the main points at issue over the merit of the case it may be noted that though in appropriate cases there is scope for judicial review of an order passed by Court Martial, the scope is very limited. We have already dealt with the said point in para 8 above. When there is no evidence at all to substantiate a conviction, the Court can enter deep into the matter, but when there is some evidence available on record the scope of the Court in the matter of interference becomes narrower and the Court is not within its jurisdiction to interfere by way of substituting its own finding by analyzing the evidence on record; discarding the finding arrived at by the Tribunal. In such cases the Court never acts as a Court of Appeal. Decisions in Han Vishnu Kamathts case8 (at pg. 243), Nagendra Nath Boras case9 (at pg. In such cases the Court never acts as a Court of Appeal. Decisions in Han Vishnu Kamathts case8 (at pg. 243), Nagendra Nath Boras case9 (at pg. 400), and M/s. Bijili Cotton Mills case10 (at pg. 1909), are worth quoting in this context. ( 20 ) LEARNED Advocate for the petitioner insisted on taking us through the evidence on record. It is not a case of no evidence. It is a case of some evidence. In such a case it is not permissible to go into detail of the evidence as this Court cannot analyse the evidence on record to substitute the finding of the Court Martial with, the finding of this Court on the basis of the same evidence. But we would be very much within our jurisdiction to see if the conviction is based on inadmissible evidence or if while coming to the finding some pertinent evidence lost sight of, deliberately or negligently, or if any gross error appears to have been committed from the very face of the record. In Pen and Companyts case11, it has been held that manifest error apparent on tile face of the proceeding based on a clear ignorance or disregard of the provisions of law, when shown, can be regulated where why Tribunal has disabled itself from reaching a fair decision and where its conclusion is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion. In H. S. and I. E. Board, V. P. case12, it has been held that though the High Court, exercising its jurisdiction under Article 226 of the Constitution, does not sit in appeal, but if the impugned order does not appear to be supported by any worthy evidence the High Court would be justified to quash the order. The Court must see whether the probabilities and circumstantial evidence did not justify the impugned conclusion. Similarly in Bhagat Rams case13, it has been held that though in exercise of jurisdiction under Article 226 of the Constitution, High Court does not function as a Court of Appeal, but where finding is deliberately perverse the High Court can always interfere with the same. ( 21 ) WE have already put down, in short, the charges framed and conclusions drawn thereon by the Court Martial. ( 21 ) WE have already put down, in short, the charges framed and conclusions drawn thereon by the Court Martial. It would now be proper to go through the submission of the petitioner in his defence with respect to the said charges. Let us proceed charge-wise. ( 22 ) REGARDING charge No. lithe contention of the petitioner is mainly that the letter (Ext. Q. 10), which forms the crux of the offence was not written to pass over some definite information to the G. O. C. over the position of grounding of S. R. T. The letter or note was sent to Major General Dhingra in connection with a departmental enquiry and Major General Dhingra was not the Head of the Division at the point of time. Stress has been put over the word likely which keeps the schedule open and not conclusive. The admissibility of such a document into evidence has also been questioned. Rule 182, of the Army Rules has been referred to. It has been alleged further that the report of Lt. Col. K. K. Khoshla, though admitted into evidence as Ext. AW, has not been taken into consideration by the Presiding Officer. It is the claim of the petitioner that this report nullifies all other evidence on which reliance has been placed by the Presiding Officer and leads to complete exoneration of the petitioner from the alleged offence. It is true that the Presiding Officer while dealing with charge No. II did not at all refer to Ext. AW. Shutting out of evidence is grossly irregular. ( 23 ) ADMISSIBILITY of Q 10 or in other words placing reliance on such a document is forbidden under Rule 182 of the Army Rules as it was a statement sent to a Court of Enquiry. Therefore the very basis of this charge appears to be too weak to stand. ( 24 ) REGARDING charge No. III the allegation is that, payment against repair of generator/alternators were made without verifying their post-repair serviceability. We find from the judgment of Court Martial that there was a Board consisting of P. Ws. 6, 21 and 24 of which P. W. 21 was the Presiding Officer. The Board verified serviceability of the articles, before the payment was released. We find from the judgment of Court Martial that there was a Board consisting of P. Ws. 6, 21 and 24 of which P. W. 21 was the Presiding Officer. The Board verified serviceability of the articles, before the payment was released. Entries in the register were also made which was further countersigned by Colonel G. S. These two sets of documents have been brought into evidence. Most of the signatories have been examined. They admitted their signatures in those documents but tried to advance an explanation that they put their signatures without applying their minds or under the direction of the petitioner. The Presiding Officer of the Court Martial decided to place reliance on the oral testimony of such witnesses in preference to their written endorsements. We may again note that we would not have commented upon the prudence of the Presiding Officer in placing reliance on oral evidence, though contrary to written endorsements had such oral evidence been lawfully admissible. Learned Advocate for the petitioner referred to Section 94 of the Evidence Act, which excludes evidence against application of document. The law says that when the document, which is the written endorsement in the instant case gives out a plain meaning, evidence cannot be entertained which controverts the same. Learned Advocate for the respondents, however, contends that this is not a case where Section 94 Evidence Act has its application. According to him proviso 1 to Section 92 is the actual provision, which is to be applied in this case. Section 92 applies alongwith other specific cases to any matter, which is required by law to be reduced to writing. Boards proceeding or endorsement in the register does not definitely fall within the category of a matter required by law to be reduced in writing. We cannot accept the argument advanced on behalf of the respondent in this regard. ( 25 ) THE Court Martial should also have taken care of the provision under Defence Service Regulation which provides that any case of dishonesty, fraud or infringement of orders that might come to the knowledge of any defence personnel, it should be brought at once to the notice of its immediate superior. In the instant case nothing has been done for a pretty long time by any of these P. Ws. Non-consideration of such an aspect is a gross omission on the part of the Court Martial. In the instant case nothing has been done for a pretty long time by any of these P. Ws. Non-consideration of such an aspect is a gross omission on the part of the Court Martial. No reference has been made to the evidence of P. W. 20 in the judgment. This also amounts to shutting out of evidence. We also do not find any reference in the judgment to the very vital fact that P. W. 6 endorsed the bills before payment was made against those bills. Thus even without entering into the evidence in detail we find irregularities and illegalities in arriving at a decision by the Court Martial so far as this charge is concerned. ( 26 ) CHARGE VIII relates to payment against supply of ATG stores without receipt of the materials. It is evident that before any payment endorsement of the concerned officer were made in each of the bills certifying receipt of the articles and of their entry into the ledger. The Court Martial did not rely on such endorsements and preferred to rely on the oral testimony of a few of the signatories (P. Ws. 30 and 32) explaining the circumstances under which the endorsements were made without verifying the fact. Admissibility of such evidence is questionable as we have held while dealing with Charge No. III. Moreover, the Court Martial did not make any reference to the evidence of P. Ws. 10 and 16. The Presiding Officer also did not take into consideration Ext. L 10 and Y 10, though he admitted the same into evidence. The Presiding Officer of the Court Martial, while dealing with this charge, observed that though the accused was made aware on 9-6-1993 about non-receipt of ATG stores he did not take any action and that such inaction indicated his bad intention. It is true that petitioner was first made aware of such deficiency, on 9-6-1993 and long before that date, to be, specific on 18-3-1993, payments were made. Exts. L 10 and Y 10 show that on 16-6-1993, immediately on receipt of the information about shortage, the petitioner asked P. W. 16 to make physical, verification and to report. The report reached the petitioner on 20-6-1993 when the petitioner asked for fixing up the responsibility and for recovery of the goods in question. Exts. L 10 and Y 10 show that on 16-6-1993, immediately on receipt of the information about shortage, the petitioner asked P. W. 16 to make physical, verification and to report. The report reached the petitioner on 20-6-1993 when the petitioner asked for fixing up the responsibility and for recovery of the goods in question. Thus the comments of the Presiding Officer about the inaction of the petitioner is unfounded, rather belied. It is apparent that the Presiding Officer of the Court Martial while coming to the guilty finding relied on the oral testimony, which was not admissible under the law. He also ignored the relevant evidence, which could help him to come to a correct finding. ( 27 ) REGARDING charge No. IX the allegation relates to non-reporting about losses of some store materials. It is in evidence that deficiency was with respect to only three articles. The loss was reported to the petitioner on 9-6-1993 and the deficiency was brought by the petitioner to the notice of the Head-quarter on 23-9-1993. The petitioner got the deficiency ascertained by way of physical verification in the intervening period. The charge on this score is that the petitioner violated good order, and discipline of the Defence by way of non-reporting the matter to his higher authorities. It has been noted in the charge that such omission was in contravention of para 1 (c) of SAO dated 13/s/80. Section 63 lays down that any act or omission which, though not specific in the Act, is prejudicial to good order and military discipline should be an offence. We have already noted that the omission in this case is non-reporting inviolation of para 1 (c) of SAO 13/s/80. A look to 13/s/80 would indicate the instances, which are to be reported. In para 1 (a) and (b) a few of the instances! offences have been specifically noted. In para 1 (c), however, makes other serious cases e. g. unnatural deaths not covered under para (b), reportable. Therefore, obligation under para 1 (c) was with respect to reporting of unnatural death cases. By no stretch of imagination deficiency in stores come under any of the categories. Therefore, the charge itself is defective. offences have been specifically noted. In para 1 (c), however, makes other serious cases e. g. unnatural deaths not covered under para (b), reportable. Therefore, obligation under para 1 (c) was with respect to reporting of unnatural death cases. By no stretch of imagination deficiency in stores come under any of the categories. Therefore, the charge itself is defective. Moreover, in the charge the dates are being noted as between 1-11-1992 and 21-11-1993 but admittedly the first reporting was made to the petitioner on 9-6-1993 and reporting by the petitioner to the Headquarter was on 23-9-1993. Therefore, the dates noted in the charge are also imaginary. Learned Advocate for the respondents contended that such defects in the charge are not fatal. He referred to Suraj Palts case14. We cannot find any relevance of this decision. In that case charges were made u/s 302,1307 read with 149 IPC but the conviction was u,1ss 307 and 302. In such cases conviction having made even without direct and individual charges are thoroughly lawful. But the thing is different in the instant case. In Gian Chands case15, the matter has been appropriately dealt with in paragraph 35. We could have construed the charge liberally had it been under Rule 22 of the Army Rules. But in the instant case the charge was framed under Rule 28 and in such a case we cannot take the matter lightly. We may on this point look at Rule 37 (1), which makes it obligatory on the part of the Presiding Officer of the Court Martial that before he starts with the proceeding he should satisfy himself about the correctness of the charge. It is, therefore, apparent that in respect of this charge the Court Martial did not act lawfully. ( 28 ) ON an overall analysis we find that the Court Martial acted on a defective charge, relied on evidence which is not admissible under the general law and Army Rules, did not take into consideration the oral or documentary evidence which stand contrary to the prosecution allegations and so on. Thus the Court Martial acted in a reckless, if not mala-fide, manner. The decision of the Court Martial, therefore, must be held to be perverse. ( 29 ) WE should also note that so far as the sentence is concerned it was too harsh. Thus the Court Martial acted in a reckless, if not mala-fide, manner. The decision of the Court Martial, therefore, must be held to be perverse. ( 29 ) WE should also note that so far as the sentence is concerned it was too harsh. The sentence should always be commensurate to the gravity of the offence, which in other words may be called as doctrine of proportion ability. In the instant case it has exceeded all the proportion. Even if the, entire prosecution story is accepted as it is the petitioner cannot be said to have committed any graver wrong than delaying despatch of information regarding deficiency in store or giving inaccurate information to the higher officials about utilization of some S. R. Ts. or showing laches in making payment without ascertaining the actual position. None of these instances can be said to be so grave as to put our defence under peril. Sentence like cashiering in such a case is highly disproportionate and indicates non-application of mind by the trial Court. ( 30 ) TAKING everything into consideration, we must hold that the Court Martial committed gross error in arriving at the decision relating to conviction of the petitioner and thereby injured the legal and fundamental rights available to the petitioner. There is no reason to hold the impugned judgment as good in law. ( 31 ) THE Writ Petition, therefore, is allowed on contest but without costs. The impugned judgment dated 10-11-1995 of the General Court Martial and all steps and decisions subsequent thereto are set aside. The petitioner be released from his bail bond and all financial and other benefits which, because of the impugned order, might have been kept with-held by the authorities be released in favour of the petitioner forthwith. Petition allowed. --- *** ---