Order The grievance of the petitioner is in respect of the order dated 12.9.96 of the District Court Martial in the case of the petitioner, whereby he has been sentenced to undergo rigorous imprisonment for a period of six months and has also been dismissed from service and the order of confirmation dated 8.11.96 is alleged to be highly illegal and without jurisdiction besides the same being arbitrary. 2. The petitioner was proceeded with for obtaining illegal gratification with a motive for procuring the enrolment of a person in between 18th to 20th September, 1996, and also for taking illegal gratification from another person on 19th September, 1996. 3. While the trial was going on, the petitioner came up before this Court regarding hardship in the proceeding when the petitioner was not being given proper opportunity of cross-examination and others in C.W.J.C. No. 2532 of 1996(R). The said petition was disposed of vide order dated 30.8.96 with some directions. After the conclusion of the Court Martial and the order dated 12.9.96 was passed, the petitioner came up before this Court in C.W.J.C. No. 3467 of 1996(R) on the ground that the charges which had been framed against the petitioner for the purpose of trial have been abruptly changed at the time of passing the judgment of conviction, which vitiated the whole trial as the petitioner did not get any opportunity when the charges have been varied. The above writ petition was disposed of giving opportunity to the petitioner to raise those points before the confirming authority. According to the petitioner, he raised those points before the confirming authority as per the direction of this court, but the confirming authority without giving any finding on the points being raised by the petitioner passed a cryptical one line order confirming the conviction and sentence imposed against the petitioner. 4. On going through impugned order of conviction, as contained in annexure-8, it becomes crystal clear that the dates on which illegal gratification was alleged to be taken by the petitioner have been changed and such change was made only at the time of passing of the judgment and not before that. In that view of the matter, it appears that the• respondents have committed great error of law. 5. As per statutory rules, Rule 50 of the Army Rules, 1954 runs as follows:- "50. Amendment of charge. In that view of the matter, it appears that the• respondents have committed great error of law. 5. As per statutory rules, Rule 50 of the Army Rules, 1954 runs as follows:- "50. Amendment of charge. - (1) At any time during the trial, if it appears to the Court that there is any mistake In the name or description of the accused in the charge-sheet, the Court may amend the charge-sheet so as to correct that mistake. (2) If, on the trial of any charge, 'it appears to the Court at any time before it has begun to examine the witness, that in the interests of justice any addition to, omission from, or alteration in, the charge is required, it may report its opinion to the convening authority, and may adjourn, and the convening authority may either direct the new trial to be commenced, or amend the charge, and order the trial to proceed with such amended charge after due notice to the accused." 6. This Rule 50 of the Army Rules is in consonance with the general provision of Section 216 of the Code of Criminal Procedure. 7. In the present case, on the face of it, there is alteration of charge and such alteration was made only at the time of delivering the judgment and not before that and, as such, such alteration was made without any notice to the accused and hence there is violation of Rule 50 of Army Rules on the face of it and such violation, definitely, vitiates the whole trial of Court Martial. 8. Mr. Trivedi, appearing for and on behalf of the respondents takes a preliminary objection regarding the maintainability of this writ petition. According to him, there is provision under Section 164 of the Army Act, 1950, when the petitioner could have filed appeal before the Central Government (Chief of the Army Staff). The said provision is not in the form of appeal, as is available under other Acts rather the wording of Section 164(2) reveals that the same is in the form of a mercy petition before the authority. Moreover, confirmation has already been made by the General Officer Commanding and as such, mercy petition shall also lie before him. 9. The said provision is not in the form of appeal, as is available under other Acts rather the wording of Section 164(2) reveals that the same is in the form of a mercy petition before the authority. Moreover, confirmation has already been made by the General Officer Commanding and as such, mercy petition shall also lie before him. 9. When the illegality and arbitrariness have been challenged and pointed out during the course of making conviction order confirmed the same has not been taken into consideration or paid heed to by the confirming authority and then according to Mr. Jerath, filing of a mercy petition under Section 164(2) of the Army Act would be a futile attempt. Another contention of Mr. Jerath is that such mercy petition is outside the scope of the present circumstances as the whole order of conviction and its confirmation is without jurisdiction, as the whole trial has been vitiated due to non-compliance of Rule 50 of the Army Rules and the principles of natural justice. 10. Mr. Trivedi has further submitted in the counter affidavit that such variation/change of charges are permissible under Army Rules 164(4) and 162(5), but I do not find any relevency of these Rules in respect of variation of charges during the course of delivering the judgment by the Court Martial. On the face of it when there is vitiating of trial due to variation in the charges, the same must be set aside. Mr. Trivedi further submits that the change of dates in the charges during the course of trial and in the judgment does not take away the actual fact i.e. substantial fact of taking of gratification by the petitioner and hence such minor change of dates in the charge will never vitiate the trial. I am not convinced with such submissions as if the dates are changed, then the petitioner may give proper evidence as to how on those dates, there was no scope of his going out to take the alleged illegal gratification. 11. In that view of the matter, the impugned order as contained in annexure-8 and annexure-12 are hereby set aside and the matter is sent back before the concerned respondents and if the authorities want to proceed further in the matter, they may do so after forming proper charges giving opportunity to the petitioner and doing fresh trial on the amended charges. The accused would be released forthwith. 12. Thus, the writ petition is allowed with the above observations and directions.