M. Ramakrishna, C.J.— The appellant, Shri Amarjit Singh, was the petitioner in Civil Rule No.872 of 1987 before this Court. In that petition, he had called in question the order made by the Court Martial dated 6.9.86. convening a District Court Martial (DCM in short) against the petitioner in violation of Rule 22 of the Army Rules, 1954, hereinafter referred to as the Rules, 1954. The main prayer in the writ petition was to quash the order made by the respondent No.3 on 6.9.86 on the main ground that the respondent failed to comply with the mandatory requirements of Rule 22 of the Rules, 1954. 2. The learned Single Judge after hearing the learned counsel on both the sides and after perusal of the original records, held that the writ petition had no merit and it was ordered to be dismissed by an order made on 31.8.93. It is this order which is called in question in this writ appeal before the Division Bench for the grounds taken in the appeal. 3. We have heard the learned counsel on both the sides. 4. Mr. T.C. Khetri, the learned counsel for the appellant, argued that the approach of the learned Single Judge that there was compliance of the requirements of Rule 22 of the Rules, 1954, based upon the records produced by the respondents, and reaching the conclusion that the writ petition had no merit is not only erroneous but also not sustainable in law inasmuch as according to the learned counsel for the appellant, the learned Single Judge failed to apply his mind correctly to the material evidence found in the original records based upon which the writ petition came to be dismissed. This conclusion of the learned Single Judge is required to be reconsidered by the Division Bench. 5. This conclusion of the learned Single Judge is required to be reconsidered by the Division Bench. 5. The legal argument advanced by the learned counsel for the appellant is that regard being had to the language employed in Rule 22 of the Rules, 1954, for the purpose of satisfying the Commanding Officer, with a view to make out a prima facie case for framing charge, the officer should have heard the witnesses in the presence of the accused and thereafter an opportunity should have been given to the accused to cross-examine the witnesses, as contemplated by Rule 22 of the Rules, 1954, which having not been done in the instant case, the learned Single Judge failed to appreciate this aspect of the matter and to record an appropriate finding. Therefore, his submission is that the conclusion reached by the learned Single Judge requires to be modified. 6. On the other hand, the learned counsel for the respondents, has produced the original records and argued that there is sufficient compliance of the requirements of Rule 22 of the Rules, 1954. He pointed out that in view of the original records produced, what is contained in page 22 to page 27, clearly indicates that there is compliance of the requirements of Rule 22, therefore, the appellate Court need not interfere with the order of the learned Single Judge. He has also placed stress upon the decision of the Hon'ble Supreme Court in the case of Major G.S. Sodhi vs. Union of India reported in AIR 1991 SC 1617 . 7. Let us now examine the facts as to whether there is compliance of the requirements of Rule 22 of the Rules, 1954. Before we consider the material evidence on record and also the finding of the learned Single Judge, it is better to extract the provisions of Rule 22 of the Rules, 1954, with a view to examine the legal contentions of both the sides. "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 made any statement in his defence." Sub-rule (2) deals with the framing of the charge. Sub-rule (3) deals with the conclusion of the hearing regarding framing of the charge. 8. The accused shall have full liberty to cross examine any witness against him, and to call any witnesses and made any statement in his defence." Sub-rule (2) deals with the framing of the charge. Sub-rule (3) deals with the conclusion of the hearing regarding framing of the charge. 8. We are not concerned with the preliminary objections raised by the writ petitioner as to the compliance of the provisions of Rule 22 of the Rules, 1954. The specific stand taken by the writ petitioner on oath before the respondent No. 3 and this Court is that the Commanding Officer, Mr. S.S. Chahal. hardly spent one or one and a half minute (s) as if he was hearing certain witnesses. Indeed, neither he examined the witnesses, nor he has given opportunity to the accused to cross examine these witnesses. Secondly, he has taken a specific stand that the Foreman said to have accompanied the Commanding Officer, Mr. Chahal, was only mechanical and found that the accused did not affix his signature as a party to the said format. Therefore, we have to see whether in fact the Commanding Officer has complied with the requirements of Rule 22 which is the real question in this case. 9. By a careful consideration of the records produced by the Central Govt Standing Counsel, it is seen that from page 22 to page 27 of the record deals with this aspect of the matter. Mainly, the third respondent wants to show that the charge prepared by him as contemplated under Rule 22 of the Rules, 1954, is in a format which is, admittedly, not signed by the accused/petitioner. Secondly, by a careful consideration of this format, it is not possible for the Court to come to a conclusion that the Commanding Officer was able to examine any witness in his (petitioner's presence to satisfy himself that a prima facie case was made out. Thirdly, the format nowhere indicates that any question was put to the witnesses - 1 and 2 in the presence of the AGO. Fourthly, nowhere in the format there is any indication that after the completion of the formalities of hearing the witnesses, as stated by the 3rd respondent, any remark is made that despite the Commanding Officer asking the AGO to affix his signature in token of his participation in the proceeding, he refused to do so. Fourthly, nowhere in the format there is any indication that after the completion of the formalities of hearing the witnesses, as stated by the 3rd respondent, any remark is made that despite the Commanding Officer asking the AGO to affix his signature in token of his participation in the proceeding, he refused to do so. But mat is nobody's case. Therefore, we will have to see in this context as to whether the writ petitioner is only a Havildar and not an officer. He participated in the proceeding. 10. It has not been disputed that the procedure, as required to be followed, is not a must in so far as an officer is concerned, but in case of a person below the rank of an officer including a Havildar, the requirement is mandatory. Therefore, we will have to see whether the Commanding Officer has complied with the requirements of Rule 22 of the Rules, 1954. 11. According to the records maintained, from page 24 to page 27, the Commanding Officer wants to show that he has examined PWs 1,2 and 3. At the outset, he has not chosen to record the submissions of these witnesses though the law does contemplated recording of submissions in writing. Secondly, after hearing the witnesses Nos .1,2 and 3 about the actual occurrence, nowhere he has indicated in the records that he has called upon the accused to cross-examine these witnesses, much less, has he stated that he did participate in the examination of the witnesses. This is no body's case. 12. Admittedly, if the writ petitioner did not choose to affix his signature, the Commanding Officer could have asked him to affix his signature if the Commanding Officer has completed the proceeding as contemplated under Rule 22 of the Rules,' 1954, and that the AGO participated in the proceedings. The specific stand taken by the petitioner in the writ petition and the appeal is that he has not affixed his signature either in the format or in the proceeding before the Commanding Officer. Therefore, we will have to see whether there is compliance of the requirements of this Rule (i.e., Rule 22 of the Rules, 1954). The specific stand taken by the petitioner in the writ petition and the appeal is that he has not affixed his signature either in the format or in the proceeding before the Commanding Officer. Therefore, we will have to see whether there is compliance of the requirements of this Rule (i.e., Rule 22 of the Rules, 1954). This Court had the occasion to deal with this question in two cases : In Subedar Baleswar Ram & others vs. Commanding Officer, 855 (now 7004) Combined Workshop EME & others in Civil Rule No.372 of 1982, disposed of 5.8.87. In this case, the Division Bench dealing with this very question of law, held, as follows : "There is no dispute before us that Rule 22 of the Rules is mandatory. This stand has been taken in view of the decision of the Supreme Court in Prithi Pal Singh Bedi vs. Union of India, AIR 1982 SC 1413 ." Referring to the judgment on this point in the case, it is stated therein : "In paragraph 37 of this judgment it has been clearly laid down that Rule 22 to 24 are mandatory in respect of every person subject to the Act other than an officer." In the instant case, admittedly, the writ petitioner being a Havildar, is not an officer. It is further observed : "Our attention has been invited by Shri Khetri to the evidence of Lt Col Saxena who staled (see page 8 of the records) that in so far as accused 2 and 3 (6364271 Sep (L/NK/SNT) MR Wani and 6373220 Sep/SHDG Ramji Singh), who are petitioner Nos. 2 and 3 before us, are concerned they were not aware of the charges against them for which the summary of evidence was recorded and so Rule 22 was not complied with qua these two petitioners." Referring to the nature of the proceeding before the Commanding Officer, the Division Bench further observed : "The orders of the confirming authority were, however, passed in May, 1982 which were challenged by amending the writ petition. We have gone through the order passed by the learned confirming authority and it has merely stated that "I confirm the finding and sentence of the Court". We have gone through the order passed by the learned confirming authority and it has merely stated that "I confirm the finding and sentence of the Court". From this single line statement it is not possible to know whether the grievance raised by the petitioner have been duly considered by the confirming authority or not." This is in respect of the legal contention that this petition was taken before the sentence was confirmed by the confirming authority. Be that as it may, ultimately, the Division Bench held that there was no compliance of Rule 22 of the Rules, 1954. 13. It is true that this matter went to the Supreme Court and the Supreme Court in Civil Appeal No.778 of 1988 as reported in AIR 1990 SC 65 , and the Supreme Court, no doubt, did not agree with the view taken by the Division Bench of this Court. Interpreting the provisions of Rule 22 of the Rules, 1954, on a different point, the Supreme Court held : "An inquiry under Rule 22 was conducted against respondent 1 relating to an offence which came under section 63 of Army Act, namely, conduct prejudicial to good order and military' discipline. However, the charge he was called upon to face in the General Court Martial was one of theft punishable under section 52 (a) of the Army Act. Held, that no doubt the allegation at the stage of inquiry under Rule 22 was described as prejudicial to good order and military discipline but the basic facts said to constitute that allegation were nothing else than removal of the foodstuff which constituted the charge of theft. It is, therefore, clear that no prejudice has been caused to respondent 1 and the inquiry under Rule 22 and the trial before General Court Martial were over the same facts." (emphasis supplied) In paragraph 5, their Lordships have indicated as to how non compliance of Rule 22 does not result in prejudice in the instant case which means even though the Supreme Court has taken the view that interpretation of Rule 22 is correct, but nonetheless, because of the civil nature of the offence of theft of foodstuffs, no prejudice whatsoever, is caused. 14. 14. In another case of Amarjit Singh vs. Chief of the Army Staff in Civil Rule No.985 of 1986, disposed of on 23.9.86, a Division Bench of this Court has taken a similar view. Indeed, some of the facts and circumstances including the allegation made in the instant case, are more or less one and the same with those of the case at hand. 15. It is seen by perusal of the allegations made by Amarjit Singh in that case that he did not put his signature to the appended form in regard to the compliance of Rule 22. He has taken a specific plea that : "It is seen from the Form appended to the writ petition that signature of accused is to be taken in the records of the proceeding before the Commanding Officer. A column is set apart for taking signature. It has been contended that no signature of the accused was taken no proceeding was held in Ms presence Annexure 3' was merely a paper transaction, which shows that no signature of he petitioner was taken during the proceedings." (emphasis supplied) The Division Bench dealing with the said allegation of the writ petitioner in regard to the record produced before the Court, also held : "It confirms, according to learned counsel, that the proceedings Were held behind the back of the petitioner. Learned counsel for the petitioner has stated that the Commanding Officer was bound to follow the terms of Rule 22 (1) read with the mandates contained in the form. It has been urged that when a certain thing is directed to be done in a certain way, the thing must be done in that way only or not at all, and it would be an unnatural construction if any other procedure is permitted other than that which is laid down." Thus the Division Bench has taken the view that there is no compliance of Rule 22 of the Rules, 1954. 16. We will now deal with the decision that the learned counsel for the respondents has placed, in the case of Major G.S. Sodhi vs. Union of India, as reported in AIR 1991 SC 1617 . 16. We will now deal with the decision that the learned counsel for the respondents has placed, in the case of Major G.S. Sodhi vs. Union of India, as reported in AIR 1991 SC 1617 . The Division Bench of their Lordships were called upon to deal with a question in regard to the procedure to be followed in Rules 22 to 24, and as to whether there is compliance of the requirements of law ? Paragraph 14 of the judgment deals with this question and their Lorships have held : "The next submission is that the additional summary of evidence is not contemplated under law and therefore the proceedings in relation to such additional summary of evidence is vitiated. It must be remembered that it is only an additional recording of summary of evidence for which no special provision is necessary because it is only in addition to the summary of evidence (SOE) already commenced and once the SOE is permitted under rule the additional SOE is its necessary concomitant. We may, however, point out that the entire proceedings contemplated under Rules 22 to 25 are only preliminary and it is meant for the purpose of Commanding Officer satisfying himself whether Court Martial should be ordered or not. We must also observed that the main thrust of the argument in this case is only about the violation of Rules 22 to 25. But we are unable to find any flagrant violation of any of these rules. Even otherwise if there are some minor irregularities they do not, in any way, affect the proceedings in the general court martial during which a regular trial was conducted." (emphasis supplied) 17. By a careful consideration of the question of law involved in Major G.S. Sodhi's (supra) case, we find that it dealt with the question as to whether there was compliance of the requirements of Rule 23 and not of Rule 22 of the Rules, 1954. That is the distinguishing feature in this case when compared to the question of law required to be dealt with in the instant case. Therefore, the question that there was no opportunity" given to the writ petitioner by the AGO when some of the witnesses were heard in his presence and, that he was called upon to cross examine these witnesses, such questions did not arise in Sodhi's (supra) case. Therefore, the question that there was no opportunity" given to the writ petitioner by the AGO when some of the witnesses were heard in his presence and, that he was called upon to cross examine these witnesses, such questions did not arise in Sodhi's (supra) case. Therefore, we are of the view that the argument of the learned Central Govt Standing Counsel appearing on behalf of the respondents, showing that there is compliance by virtue of the circumstances of the instant case, is of no assistance. As already pointed out, neither the appellant participated in the proceedings under Rule 22s of the Rules, 1954 when PWs 1,2 and 3 were said to have been examined, nor any opportunity was given to him to cross examine these witnesses. Secondly, no signature of the appellant was obtained in the format after the proceeding, which according to Rule 22 of the Rules, 1954, had been held to be complied with. These are to reasons which compel us to take a view different from the view Repressed by the learned Single Judge. 18. In the result, this appeal is allowed with costs throughout. The order of the learned Single Judge is set aside. Indeed the order made by the Commanding Officer for initiating the General Court Martial also stands quashed. Before parting with this case, the learned counsel for the appellant has brought to our notice that as on today, the appellant having been retired, has also served the punishment imposed upon him by the Court Martial, therefore, he wants that this Court take cognizance of the factual position to give relief. We only feel sorry as we are not able to give the relief inasmuch as it was open to the writ petitioner to have taken appropriate action to seek for the amendment in the prayer. Such action was not taken in the appeal and, therefore, in the absence of such prayer, it is not right on the part of this Court to consider his prayer. We leave the matter at this stage with liberty to the appellant to seek for appropriate relief in accordance with law, if he is so advised.