JUDGMENT - S.S. NIJJAR, J. :---In this petition under Articles 226/227 of the Constitution of India, the petitioner has prayed for a writ of certiorari quashing the order of the Court Martial dated 21st March, 1990. He has also challenged the order of confirmation passed by the General Officer, Commanding in Chief, Southern Command, Pune, dated 14th July, 1990 and the order of the Chief of Army Staff, New Delhi dated 9-1-1991 whereby the petition against the confirmation order under section 164(2) of the Army Act, 1950 was dismissed. 2.On 3rd November, 1988, the petitioner was appearing in a written examination known as "Technical Staff Course-16 Examination." On that day the petitioner was appearing in the Mathematics paper. One Major Bhowmik along with Major Sharma and Major Bhakshi were acting as Invigilators in the examination. The petitioner had in his possession a calculator which contained some written mathematical formulae on the reverse side. The petitioner was allegedly making use of the mathematical formulae for solving the question paper. The petitioner was thereafter not allowed to continue with the paper. The question paper, answer book and the calculator were seized by the Invigilating authorities. In due course the petitioner was served with a charge-sheet on 28-12-89. He was charged under section 63 of the Army Act. The charge was as under : " CHARGE SHEET. The accused, I.C. 30841 X Major Amarjit Singh, 976 A.D. Regt. WKap, att to 512 Army Base Workshop, an officer holding a permanent Commission in the Regular Army, is charged with :- AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at Pune, on 03 Nov. 88, when appearing at the Mathematics paper of Technical Staff College (TEC-16) Entrance Examination, was in improper possession of a calculator containing written material pertaining to the said paper. Place : Kirkee, Pune.Sd/- (KS Chattarasman) Date : 27 Dec. 89.Brig. Commandant 512 Army Base Workshop. To be tried by a General Court Martial. Place : Bombay-5 Date : 28 Dec. 89 Sd/- (Harkirat Singh) Major General General Officer Commanding Maharashtra and Gujarat area." In pursuance of this charge, the petitioner was tried by a General Court Martial. The Court Martial commenced on 29-1-1990 and concluded on 21-3-1990. The petitioner was found guilty of the charge. Punishment of one year forfeiture of service for the purpose of promotion was imposed on the petitioner. The Court Martial commenced on 29-1-1990 and concluded on 21-3-1990. The petitioner was found guilty of the charge. Punishment of one year forfeiture of service for the purpose of promotion was imposed on the petitioner. Under the Act, the petitioner had a right to prefer a pre-confirming petition. This petition was filed by the petitioner on 28-3-1990. The said petition was dismissed by an order dated 14th July, 1990. Thereafter the petitioner made a post-confirmation petition on 23rd July, 1990 to the Chief of the Army Staff under section 184(2) of the Act. This petition also came to be dismissed on 9-1-1991. The dismissal of the post confirmation petition was communicated to the petitioner by letter dated 2nd April, 1990. Hence this petition. 3.We have gone through the whole record with the help of the Counsel for the parties. It transpires that the examination is conducted in accordance with SAO 2/S/85. These are instructions issued by the General Staff Branch. A perusal of these instructions would show that all supervising Boards and Candidates appearing in an examination have to study these instructions carefully before the conduct of an examination. Clause 3 states "all officers appearing in an examination will read these instructions thoroughly before applying for the same". Clause 4 provides that "cases of officers who do not apply for or take a promotion examination they are due to take, will be investigated by the Formations and if necessary administrative/disciplinary action taken against them." Appendix-A to these instructions further states that " The Formation Headquarters detailing the Board will ensure that contents of this SAO are read and understood by all members as soon as they are detailed. It will be ensured that a copy of this SAO is kept in the Examination Centre for ready reference at all times". Para 11 deals with unfair means and states that an officer using unfair means will not be allowed to continue with the examination including the remaining papers. Such cases will be viewed seriously and disciplinary action taken against them by the conducting formation. Para 16 provides as under : "Candidates will be permitted to take into the examination halls the undermentioned aids. Borrowing or lending of these during the examination is not permitted. (a) Map marking and sketching stationery item, For all pocket calculators, slide rules and Logarithm tables. Examinations. Para 16 provides as under : "Candidates will be permitted to take into the examination halls the undermentioned aids. Borrowing or lending of these during the examination is not permitted. (a) Map marking and sketching stationery item, For all pocket calculators, slide rules and Logarithm tables. Examinations. Appendix-B to these instructions contains the instructions for the guidance of candidates appearing for the written examination. In these instructions it is provided "Failure to pass promotion examination in time will not only affect an officers seniority but results in his compulsory retirement from the service in a lower rank." SAO 4/S/85 sets out the aim of the examination. It states that the aim of the course is to train officers upto the standard required for Grade-II and Grade-I staff or corps technical staff appointments and in so doing to fit them with further experience for specified higher technical staff appointment. In para 29 it states that instructions for candidates were contained in Appendix-B SAO 2/S/85. It commands that "all candidates will read the SAO before they apply for TSC." In pursuance of the aforesaid SAO, administrative instructions dated 21st Sept. 1988 were issued for conduct of the entrance examination for TSC-16 to be held on the first week of November, 1988 (EXH. BB). Paragraph 3 of the instructions is as follows. " 3. Officers appearing in the examination will be provided answer books by this Establishment. They are required to bring the following with them. (a) Graph paper (adequate sheets) (b) Slide Rules. (c) Logarithm/Mathematics Table. (d) Geometry box. (e) Pens, pencils, ink, ruler and other stationery items considered essential (adequate numbers/quantity)." The question paper contains instructions to the candidates. It provides that the candidates can "use calculators and log tables". All the above quoted instructions deal with the conduct of the examination. As noticed above, use of unfair means can result in disciplinary action being taken against the officer. This officer has been charge-sheeted under section 63 of the Act which is as under : "63. Violation of Good order and Discipline. All the above quoted instructions deal with the conduct of the examination. As noticed above, use of unfair means can result in disciplinary action being taken against the officer. This officer has been charge-sheeted under section 63 of the Act which is as under : "63. Violation of Good order and Discipline. Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by Court Martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned." 4.We have heard lengthy arguments by Counsel on both sides. It is submitted by Mr. Mohite, Counsel for the petitioner, that the whole proceedings are nullified for more than one reason. Firstly, the candidates were permitted to take calculators into the examination. This being so, the petitioner could not be convicted under section 63 of the Act as he has done nothing against military discipline. The conduct was also not prejudicial to good order. The petitioner has been convicted on the basis of the alleged fact that he had taken a calculator into the examination hall. The calculator contained Mathematical formulae. These mathematical formulae were relevant to the examination. The officer had used the mathematical table as an aid for solving the question paper. All these acts even if they are proved, do not constitute any misconduct. He further submits that the findings of the Court Martial to the effect that the petitioner was guilty of having used mathematical formulae which were written on the reverse of the calculator are based on no evidence and therefore, the findings are null and void. The petitioner ought not to have been charged under section 63. The misconduct, even if it is proved, does not fall within the purview of section 63. The findings of the Court Martial cannot be sustained because they are vitiated on account of bias. The findings of the Court Martial are vitiated even otherwise because the summing up of the Judge Advocate is not in accordance with law. The summing up has resulted in a misdirection to the members of Court Martial which consequently has influenced the verdict of the Court Martial. Thus the whole proceedings are vitiated. The findings of the Court Martial are vitiated even otherwise because the summing up of the Judge Advocate is not in accordance with law. The summing up has resulted in a misdirection to the members of Court Martial which consequently has influenced the verdict of the Court Martial. Thus the whole proceedings are vitiated. On the other hand it has been submitted by Shri Rajguru, Counsel for the respondents that findings given by the Court Martial are findings of fact and, therefore, the High Court ought not to interfere with the said finding; that the petitioner has been prosecuted and convicted by the Court Martial which was legally convened under the provisions of the Act; there being no error of jurisdiction or any miscarriage of justice, this Court will not exercise its jurisdiction under Article 226 to interfere with the findings of the Court Martial; that even otherwise there is sufficient evidence on the basis of which the findings have been given by the Court Martial. The petitioner has been given the punishment which he deserve as discipline is of utmost importance in the Armed Forces. 5.We are aware of the very limited scope of enquiry into findings of fact, which can be conducted by the High Court under Article 226 of the Constitution. These limits are well defined. This Court generally would not act as a Court of Appeal over the findings recorded by the Court Martial. But the High Court under Article 226 has the power of judicial review over Court Martial and can grant appropriate relief if fundamental rights have been denied or if there has been a jurisdictional error. Thus the High Court will not reappreciate evidence to come to its own conclusion, which may be different from the finding returned by an inferior Tribunal. The High Court has the power to inquire as to whether there is any legal evidence to sustain the charge. Further it can interfere if the Tribunal has admitted inadmissible evidence or has failed to consider evidence that was relevant, which has influenced the impugned finding, or where the decision is so unreasonable that no reasonable authority would make such a decision. We proceed to examine this matter, keeping these principles in view. The rival versions given by the parties raises the crucial point, as to whether there is any evidence to prove the charge against the petitioner. We proceed to examine this matter, keeping these principles in view. The rival versions given by the parties raises the crucial point, as to whether there is any evidence to prove the charge against the petitioner. 6.In order to decide this question we have with the help of the Counsel for the parties carefully examined the evidence. The prosecution has to prove that: (a) The petitioner was in improper possession of a calculator. (b) The calculator contained written material; and (c) the material pertained to the said paper. P.W. 1 is a formal witness. P.W. 2 : He has produced the documents seized at the examination. He had produced these at the summary of evidence in presence of the accused. The documents except the calculator were sent to Pune Sub Area. The calculator was kept in his custody. He produced the Administrative Instructions (Exh. BB) dated 21-9-1988 and various kinds of Logarithm and Mathematical tables. The calculator is produced which is Casio Fx 82B. (Exh. ME-1). He further states : "The calculator is received and labelled with a label marked Exhibit ME-1, label duly signed by Judge Advocate and attached to the proceedings. The witness states, that Exhibits 'A' to ME-1 are the same which I had produced in front of the officer recording the Summary of Evidence." P.W. 3 : Lt. Col. Rakesh Goel, he states : "On close examination, I found that certain Mathematical formulas were written on the back of the calculator in pencil. Now I am shown Exhibit ME-1 which I recognise to be the same calculator which was confiscated from the accused on 03 Nov. 88." "The conduct of TSC examination was governed by Special Army Order 2. S/85. Therein, it was specifically mentioned that serious view will be taken on any attempt at using unfair means and any candidate so detected shall be disqualified from the examination. I was aware of as to what constitutes an unfair means. The calculator was permitted to be taken in the examination but it was nowhere permitted to carry the written material on the back of the calculator. The carrying of written material on the back of the calculator was in violation of the laid down examination rules. Besides the fact whether the written material was helpful or not the carrying of written material itself was in violation of rules. The carrying of written material on the back of the calculator was in violation of the laid down examination rules. Besides the fact whether the written material was helpful or not the carrying of written material itself was in violation of rules. To ascertain the fact whether this material was helpful for Mathematics paper or not, I took this written material to Major (Now. Lt. Col.) S.K. Bakshi, who confirmed the fact that there were certain formulas in the material written on the back of the calculator which could be helpful for solving the Mathematics paper. I also ascertained this fact from Major S.K. Bhomik. Then I went to accused and having ascertained that the formulas had a bearing on the Mathematics Paper and could prove useful in answering the Mathematics paper which was in progress on 03 Nov. 88 and also the fact that during my talks with accused, he at no point has indicated that these formulas had no bearing on the Mathematics Paper. I confiscated the calculator, answer book and the question paper from the accused." "Instructions on the top of the question papers did say something as to what was permissible and what was not. As far as I remember, Mathematics question paper on 03 Nov. 88 contained the instruction that calculators were permitted. I do not remember whether log tables were permitted or not." "I saw certain formulas written on the complete back of the calculator in pencil and that is why I can recognize it. I did not count how many formulas were written on the back of the calculator. I do not remember even one formulae out of those found on the back of the calculator." "The accused made a request at the time of sealing the confiscated items to ascertain from other candidates that they were also having calculators and log tables. It is correct to suggest that other candidates were having calculators and log tabels. The log tables contained formulas. I do not remember whether I found any log table with the accused. I did not compare the formulas written at the back of the calculator with the log tables." "I cannot say with certainty that the calculator which was shown to me at summary of evidence was the same which was produced at Court of Inquiry. I do not remember whether I found any log table with the accused. I did not compare the formulas written at the back of the calculator with the log tables." "I cannot say with certainty that the calculator which was shown to me at summary of evidence was the same which was produced at Court of Inquiry. I cannot say with certainty that the calculator shown to me today is the same which was shown to me at Summary of evidnce." P.W. 4 : Major R.K. Sharma, he states : "Now I am shown a calculator by the Prosecutor, which appears to me to be the same Calculator which was confiscated from the accused in the examination on 03 Nov. 88. I cannot say with certainty that this is exactly the same calculator which was confiscated from the accused but it looks similar to and it has got formulas written on its back side., as were on the calculator which was confiscated from the accused and that is why I identify it to be the same." "Many candidates were possessing the calculators, I had also observed the cadidates possessing log tables. I do not know what are Mathematical Tables. The candidates were at liberty to use the calculators and Logarithm Tables for solving the question paper. I do not remember authors of the Logarithm, table books which were in possession of the candidates. The writing on the back of the calculator, which was confiscated from the accused, looked like Mathematical formulas. I do not remember whether or not the accused had any log table on his desk on 03 Nov. 88. I did not compare the formulas written on the back of the calculator of the accused with those which were given in the log tables. I am MSC in Military Science. I have studied Mathematics upto Intermediate level. I had never used Logarithm tables for solving Mathematics paper in my Intermediate examination. It is correct to suggest that I have not seen myself the accused using unfair means before it was pointed out to me." "I do not remember any of the formulas written on the back of the calculator. I have studied Mathematics upto Intermediate level. I had never used Logarithm tables for solving Mathematics paper in my Intermediate examination. It is correct to suggest that I have not seen myself the accused using unfair means before it was pointed out to me." "I do not remember any of the formulas written on the back of the calculator. I do not remember whether or not any invigilator tallied the formulas on the back of the calculator with those on the log tables." He states in the re-examination: "The candidates were not allowed to write anything on the back of their calculators. The calculator (Exhibit ME-1) looks like one, which was confiscated form the accused because it has the same mark and it has formulas written on its back. That is why I identify it to be the same." P.W. 5 : Lt. Col. S.K. Bakshi : He states : "Now I am shown a calculator by the prosecutor. I identify it to be the same calculator which was confiscated from the accused on 03 Nov. 88." "There was no clear instructions as to the publisher, whose Log Tables were permissible, so we were allowing Log Tables from various publishers." "The candidates were at liberty to use the calculator and the Log Tables. I was present in the examination hall throughout on 03 Nov. 88. I myself saw the accused using unfair means. The accused was in possession of a calculator which had Mathematical formulas written on the back of it. I did not compare the formulas which were on the back of the calculator of the accused with those contained in the Log Tables. The accused did not have any Log tables with him on 03 Nov. 88." "I do not remember whether the material written on the back of the calculator were Mathematical formulas or Trigonomatry tables. Now I am shown Exhibit EE and ME-1. Two of the Trigonomatry formulas written on the back of ME-1 are the same which are contained in Exhibit-EE. The same is encircled by the Judge Advocate in the red ink and marked as 'E'." "Mathematical and Physical tables were not permitted in the examination as per the relevant Army Order. The following question and answer is recorded verbatim at the request of the Defence Counsel. The same is encircled by the Judge Advocate in the red ink and marked as 'E'." "Mathematical and Physical tables were not permitted in the examination as per the relevant Army Order. The following question and answer is recorded verbatim at the request of the Defence Counsel. In the Court of Inquiry you have deposed that you had read the administrative Instructions issued by the Military Intelligence School and that the Mathematical and Physical Tables were permitted. What have you to say in this regard. ? It is correct that I had stated at Court of Inquiry that I had read the Administrative Instructions and that the Mathematical and Physical Tables were permitted in the examination. However, I do not remember how did I make that statement. I do not remember whether or not announcement was made before the commencement of examination on 03 Nov. 88, that the Mathematical Tables were permitted in the Examination. The accused had requested the Invigilation Board that these formulas were also available in the Log Tables and as such he should be allowed to continue the examination." "I did not see the accused using the formulas written on the back of the calculator." P.W. 6 : Major S.K. Bhowmik : He states in Examination in chief : "At about 1200 hours on 03 Nov. 88 when Mathematics paper was in progress, I noticed the accused sitting in row No. 2. I observed the accused handling the reverse side of his calculator instead of the front side, which made me suspicious. When I concentrated myself, I concluded that the accused was trying to make the angle of the calculator towards the light which was incident from the door. Thereafter, I noticed that the accused was observing something from the calculator and was immediately writing it in his answer book. The accused was referring only to the back side of the calculator. After writing down in the answer book, the accused used to look around and then again repeated the same activity. I noticed the accused doing this 3-4 times." "I found certain formulas written on the back of the calculator. Presiding Officer asked me if those formulas were relevant to the Mathematics paper. I saw the formulas written on the back of the calculator and confirmed to the Presiding Officer that the formulas could be of helpful to solve the Mathematics paper. Presiding Officer asked me if those formulas were relevant to the Mathematics paper. I saw the formulas written on the back of the calculator and confirmed to the Presiding Officer that the formulas could be of helpful to solve the Mathematics paper. Subsequently the Presiding Officer confiscated the calculator, answer sheet and question paper from the accused. Now I am shown a calculator by the prosecutor. I identify it to be the same calculator which was confiscated from the accused on 03 Nov. 88. I identify it on the basis of the formulas which are written on its back." "Pocket calculators, slide rules and Logarithm tables were permitted to carry by the candidates in the examination." "I did not read the Administrative instruction issued by the Military Intelligence School for candidates of TSC-16 Examination." "Formulas were written on the back of the calculator but I do not remember any of them. I did not compare the formulas written on the back of the calculator with the log tables." "I did not see the accused writing formulas at the back of the calculator. I did not put any mark or initial on the calculator of accused when it was confiscated. I do not know whether the calculators have any registration number. Scientific calculators are easily available in the market." "At this stage the defence Counsel makes a written objection to the mode of identification of the calculator by the witnesses. The objections of the defence Counsel is received, read, marked Exhibit-KK signed by the Judge Advocate and attached to the proceedings." P.W. 7 : Lt. Col. M.D. Pathak : He recorded the Summary of evidence and Additional Summary of evidence. He states : "The original Summary of evidence was concluded on 06 Sept. 89. I kept the original summary of evidence with me after conclusion. After conclusion of summary of evidence, I realised that no witness had produced the exhibits which were very important for the same. So I discussed the matter with my Commandant and sought his advice on the subject. Accordingly, it was decided to record additional summary of evidence and obtained the Exhibits from the then Custodian of these Exhibits." "The suspected calculator alone was shown to the witnesses for identification during their depositions. It is wrong to suggest that I have deposed falsely. P.W. 8 : Major R.Dutta. Accordingly, it was decided to record additional summary of evidence and obtained the Exhibits from the then Custodian of these Exhibits." "The suspected calculator alone was shown to the witnesses for identification during their depositions. It is wrong to suggest that I have deposed falsely. P.W. 8 : Major R.Dutta. He states: "Calculator and Log Tables were permitted to be carried in the examination by the candidates. I do not know whether the Log and Mathematical Tables were permitted or not. Now I am shown Exhibit 'BB'. It is correct that Clause 'C' of para 3 of Exhibit 'BB' mentions about Mathematical Table/Logarithm being permissible to carry in the examination. There was no specific instructions as to what type of Mathematical Table or Log Tabel was permitted." 7.P.W. 1 is merely a formal witness. He states that there has been no breach of any of the rules while recording the summary of evidence. He is not an eye witness and could not identify either the calculator or the incriminating writing which was allegedly found on the calculator. P.W. 2 was also not an eye witness. He had received the summary of evidence. He states that he had received the sealed envelope from Pune sub Area on 13th June, 1989 containing proceedings of Court of enquiry with its exhibits in respect of the accused. He produced the documents at the summary of evidence. After the summary of evidence he sent the documents to Pune Sub Area whilst he kept the calculator in his custody. He also produced the instructions dated 21st September, 1988 and various kinds of logarithm and mathematical tables. He states that Exhibits-A to ME-1 are the same which he had produced in front of the Officer recording the summary of evidence. He does not and could not possibly say that the calculator produced at Exh. ME-1 is the one which was seized from the petitioner at the time of examination. He cannot possibly say so because he is not an eye witness. Further he has mentioned nothing about the alleged written formulae which was found on the back of the Calculator. P.W. 3 Lt. Col. Rakesh Goel was the Presiding Officer of the Examination in question. He narrates about the detection of the petitioner using unfair means. He says that the calculator was permitted. Further he has mentioned nothing about the alleged written formulae which was found on the back of the Calculator. P.W. 3 Lt. Col. Rakesh Goel was the Presiding Officer of the Examination in question. He narrates about the detection of the petitioner using unfair means. He says that the calculator was permitted. to be taken into the examination but the written material on the back of the material was not permitted. He says that the material was taken to Major Col. S.K. Bakshi. He is said to have confirmed that the formulae written on the back of the calculator could be helpful to the petitioner for solving the Mathematics paper. This fact is further supposed to be ascertained by Major S.K. Bhowmik. He futher states that the instructions on the top of the question paper mentioned that the calculators were permitted. He does not remember whether the instructions mentioned anything about the log tables. He recognises the calculator from the fact that formulae were written on the back of the said calculator in pencil. He further states that other candidates were having calculators and log tables. He also states that the log tables contained formulae. He did not compare the formulas written on the back of the calculator with log tables. After all he states that " I cannot say with certainty that the calculator which was shown to me at the summary of evidence was the same which was produced at the Court of enquiry. He cannot say with certainty that the calculator shown to me today is the same which was shown to me at the summary of evidence. "He merely states that he recognises the calculator because of the material written on the back with the pencil. There is no confirmation of the fact that the material written on the back of the material is the same as was on the calculator which was seized from the petitioner. There is no positive statement that the calculator in fact is the one that was seized from the petitioner. Not only this he is not even certain as to whether the calculator shown to him at the Court of enquiry was the same as the one which was shown to him at the summary of evidence. Thus this witness has not given any relevant evidence to prove the charge against the petitioner. Not only this he is not even certain as to whether the calculator shown to him at the Court of enquiry was the same as the one which was shown to him at the summary of evidence. Thus this witness has not given any relevant evidence to prove the charge against the petitioner. P.W. 4 states that he is not certain that "this is exactly the same calculator which was confiscated from the accused but it looks similar to and it has got formulas written on its back side, as were on the calculator which was confiscated from the accused and that is why he is in a position to identify the same. He confirms that other candidates were possessing calculators and log tables. He does not know what Mathematical tables are. He reiterates that candidates were at liberty to use calculator and/or tables. He says that the writing on the back of the calculator which was confiscated from the accused looked like mathematical formulae. He did not compare the formulae written on the back of the calculator with the formulae given in the log table. He cannot identify log tables because he has studied Mathematics only upto Intermediate level. He had never used Log tables for solving Mathematical papers. He also admits that he is not an eye witness to the accused using unfair means. Thus this witness says that he does not know about what Mathematical tables are. He gives no positive identification of the calculator. He gives no positive identification of the formulae found on the back of the calculator. He has also stated that he did not remember any of the formulae written on the back of the calculator. He says that the calculator looks like the one that was confiscated, because it has the same mark and it has formulae written on its back. Thus there is no identification either of the calculator or of the incriminating material alleged to have been found on the back of calculator. P.W. 5 Lt. Col. S.K. Bakshi was working as an Invigilator in the examination. He gives the same story which has been given by the other witnesses. He says that there was no clear instruction as to the publisher whose log tables are permissible as log tables from various publishers were being permitted. The candidates were at liberty to use the calculator and log tables. He gives the same story which has been given by the other witnesses. He says that there was no clear instruction as to the publisher whose log tables are permissible as log tables from various publishers were being permitted. The candidates were at liberty to use the calculator and log tables. He did not compare the formulae on the back of the calculator with those contained in the log tables. He further states that he does not remember whether the material written on the back of the caculator were mathematical formulae of Trignomatry tables. He further says that two of the Trignomety formulae written on the back of the calculator are the same which are contained in Exhibit-EE. He admits that he had not read the administrative instructions issued by the authorities. Yet he insists that Mathematical and Physical tables were not permitted in the examination. A categoric question was posed to him to the effect "in the Court of enquiry you have deposed that you had read the administrative instructions issued by the Military Intelligence School and that the Mathematical and Physical tables were permitted ". He states that what is stated in the question is correct. However, he did not remember how did he make such a statement. He further states that he did not see the accused using the formulae written on the back of the calculator. Therefore, he does not give any reasons as to how he indentifies the said calculator to be the same, nor is he able to say as to whether the writing on the back of the calculator contain Trignometry tables or mathematical formulae. At one stage he says that mathematical tables were permitted and at the other stage he says that they were not permitted. It is obvious that this witness has not bothered to read the instructions. Thus there is obviously no evidence which can be said to be given by this witness also. P.W. 6 Major S.K.Bhowmik was detailed as a member of the Supervisory Board. He states that he does not remember whether the instructions were read out to the candidates before the examination. He repeats that pocket calculators, slide rules and log tables were permitted. He categorically states that he did not read the administrative instructions issued by the Military Intelligence School for candidates of TSC Examination. He states that he does not remember whether the instructions were read out to the candidates before the examination. He repeats that pocket calculators, slide rules and log tables were permitted. He categorically states that he did not read the administrative instructions issued by the Military Intelligence School for candidates of TSC Examination. He does not remember how many formulae were written on the back of the calculator. He did not put any mark or initial on the calculator when it was seized from the petitioner. He says scientific calculators are easily available in the market. He identifies the calculator on the basis of the formulae which are wititen on its back. This witness has also only identified the calculator on the basis of the fomulae which are written on its back. He has not stated anything about the incriminating material written on the back side. Thus this witness also does not provide any evidence for the prosecution. P.W. 7 Lt. Col. M.D. Pathak recorded the summary of evidence. He states that the accused had made a voluntary statement at the additional summary of evidence. He states that no documents were produced in the summary of evidence. Once he realised that no documents had been produced he discussed the matter with the Commandant. It was then decided to record additional summary of evidence. It was then that all the documents were produced. He states that the suspected calculator alone was shown to the witnesses for identification during their depositions. He is silent about the identification of the calculator as also the writing found on the calculator. P.W. 8 Major R. Dutta affirms that in acordance with Clause (c) of para 3 of the instructions, Mathematical tables/Logarithm tables were permissible. He also states that there was no specific instructions as to what type of material or log tables were permitted. A perusal of the evidence reproduced above would show that there is no positive identification of the calculator, which is supposed to have been used by the petitioner. Even if it is proved that the petitioner had written formulae on the back of the calculator there is no legal evidence to prove that any of them could be used to help the petitioner in solving the paper. None has been pointed out to show that the said formulae were relevant. Even if it is proved that the petitioner had written formulae on the back of the calculator there is no legal evidence to prove that any of them could be used to help the petitioner in solving the paper. None has been pointed out to show that the said formulae were relevant. Even otherwise, according to the instructions, calculators, Logarithm and Mathematical tables were permitted to be used. No one has identified any formulae which could not be found in the mathematical or logarithm tables. There was no restriction as to which tables the candidate could use. In such circumstances it was incumbent on the authorities to prove that the mathematical tables were useful to the petitioner. Furthermore, they had to prove that these formulae were not contained in the tables being used by the other examiners. On examination of the whole evidence we are of the opinion that : (1) There was no legal identification of the calculator; (2) There was no confirmation of any particular formulae of being any use to the petitioner. (3) The instructions reproduced above leave no manner of doubt that calculators, log tables and Mathematical tables are permissible aids in the examination. (4) There is no restriction as to which publication of tables one uses in the examination. (5) These publications of Logarithm and Mathematical tables also contained Mathematical formulae. (6) No effort was made to seal the incriminating material. (7) Formulae on the back of the calculator were never reduced to writing. (8) Not even a single formulae has been pointed out as being relevant to the paper in question. These are only some of our observations. Thus we have come to form the opinion that there is no legal evidence on the basis of which the charge could be said to be proved. 8.We have examined the argument of Mr. Mohite regarding bias. There is no cogent or convincing evidence to hold that any deliberate bias has been proven in the conduct of the Court Martial. It has then been argued that the findings of the Court Martial are vitiated, even otherwise as the summing up of the Judge Advocate is not in accordance with law. During the examination of P.W. 2, a submission was made that the proceedings of the Court of enquiry are not admissible in evidence. It has then been argued that the findings of the Court Martial are vitiated, even otherwise as the summing up of the Judge Advocate is not in accordance with law. During the examination of P.W. 2, a submission was made that the proceedings of the Court of enquiry are not admissible in evidence. The Judge Advocate advises that "the Court of enquiry can be described as skeleton form of all the facts which are further moulded by summary of evidence and if facts substantiate the offence then they lead to holding of a trial". The use of the words"substantiate the offence" are objected to by the Counsel for the petiitioner. He further states that the Judge Advocate has continued making partial remarks against the petitioner throughout the summing up. The Judge Advocate has deliberately summed up the case with bias, in favour of the prosecution. This, he says, is evident from the very opening of paragraph 8 where Judge Advocate analysed the evidence. The opening sentence reads "Before you find the accused guilty". Counsel submits that this amounts to a direction to the General Court Maritial that the petitioner is to be found guilty. The defence of the petitioner has been adversely commented upon. When advising on the second issue, the Judge Advocate states "This issue has been half heartedly disputed by the defence". The Judge Advocate has even referred to a so called extra judicial confession made by the petitioner to P.W. 3. It is a matter of record that the petitioner has denied making such a statement. It is the submission of Mr. Mohite that inadmissible evidence has been deliberately brought to the notice of the Court Martial in order to cause prejudice against the petitioner. In paragraph 20 after stating that the petitioner has denied having made any such statement, yet it is suggested that the same is relevant. This has materially prejudiced the case of the petitioner. In our opinion, the Judge Advocate erred in law in directing the Court Martial to attach any evidentiary value to the so called extra judicial confession. That ought to have been excluded from consideration altogether. Merely because the petitioner did not put any questions in cross-examination to P.W. 3 did not mean that he has admitted the making of the extra judicial confession. That ought to have been excluded from consideration altogether. Merely because the petitioner did not put any questions in cross-examination to P.W. 3 did not mean that he has admitted the making of the extra judicial confession. In the case of (R. v. Foster)1, 1974 Cr.L.R. 544 (CA) the Court of Appeal in England quashed the conviction because the Judge had said "Can you imagine an innocent man......... ..... not saying something to the police.... .... he said nothing". The Court of Appeal held this amounted to a misdirection. Similarly where the Judge in directing the jury said "Of course bear in mind that he was fully entitled to refuse to answer the questions; he has an absolute right to do that it is not to be held against him that he did. But you might well think that, if a man is innocent, he would be anxious to answer questions." It was held by the Court of Appeal that the comment of the Judge amounted to misdirection. See (R v. Sullivan)2, (1967) 51 Cr. App. R 102. The Judge Advocate has also erred in law in not directing the Court Martial to the effect that it is not at all necessary for the petitioner to establish his innocence. It was for the prosecution to prove the guilt of the petitioner. Thus we find that the summing up by the Judge Advocate has amounted to a misdirection to the Court Martial, and the findings of the General Court Martial have, therefore, to be quashed. As long ago as 1982 See (Prithipal Singh v. Union of India)3, A.I.R. 1982 S.C. 1413, the Hon'ble Supreme Court had observed that reluctance of the Apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty oriented Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty oriented Constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial by a Judge of an unquestioned integrity and wholly unbiased. These observations have been made by the Supreme Court in view of the fact that there is absence of even one apppeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment in the Act. It is observed that this is a glaring lacuna in a country where a counter part civilian convict can prefer appeal to hierarchy of courts. Thereafter the Supreme Court observed that "with the expanding horizons of fairplay in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel". Inspite of these telling remarks, no action seems to have been taken by the authorities making any amendments in the Act. It has also been observed by a Constitution Bench of the Supreme Court (A.I.R. 1990 S.C. 1984) as follows : "Reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the Court -martial as well as for the order passed by the Central Government is missing the post-confirmation petition. However, it is open to the person aggrieved by such an order to challenge the validity of the same before the Supreme Court under Art. 32 of the Constitution or before the High Court under Art. 226 of the Constitution and he can obtain appropriate relief in those proceedings." Keeping these principles in view, we have examined the evidence produced against the petitioner. We have also examined the legaility of the summing up of the evidence by the Judge Advocate. We agree with the submissions of Mr. Mohite on both the counts. We have also examined the legaility of the summing up of the evidence by the Judge Advocate. We agree with the submissions of Mr. Mohite on both the counts. We hold that the findings of the Court Martial are vitiated firstly on account of the fact that it is a case of no evidence. Secondly on account of the fact that the summing up was erroneous in law, was made in a very determined manner to prejudice the members of the Court Martial against the case of the petitioner. There is another reason by the writ petition has to be allowed. It is patent that according to the instructions Mathematical Tables were permitted to be taken into the examination hall. In our opinion, therefore, merely because the petitioner had written the formulae on the back of the calculator, could not amount to use of unfair means. No evidence has been led by the prosecution to establish that mathematical formulae were not contained in any of the books in possession of the other candidates. Thus to our mind it could not be said that the petitioner had committed an act prejudicial to military discipline. We find that a great deal of national time and money has wasted carrying out a wholly unnecessary exercise in the name of discipline. 9.In view of what is stated above, writ petition is allowed. Rule is made absolute in terms of prayer Clause (a) with no order as to costs. It is further directed that if desired by the petitioner, the rest of the TSC-16 Examination may be declared. The petitioner may be given an opportunity as to whether he wishes to reappear in the Mathematics paper. The case of the petitioner for promotion on seniority basis should be considered along with the 1974 batch without taking into consideration the impugned finding of the Court Maritial dated 21st March, 1990 and the impugned orders dated 14th July, 1990 and 9th January, 1991. The needful exercise should be done as expeditiously as possible. Application for stay is rejected. C.C. Expedited Registry to send writ forthwith. Petition allowed. *****