R. S. Sodhi,j. ( 1 ) THE appellants by this petition under clause 10 of the Letters Patent Act, 1907seek to challenge the judgment and order dated 11/04/1994 passed by the learnedsingle Judge in Writ Petition No. 2435 of 1991 whereby the learned Single Judge setaside the finding of the General Security Force Court and allowed the writ petition. The prayers in the writ petition were - (a) lor a writ, order or direction in the nature ofceritorari quashing the proceedings conducted by the General Security Force Courtagainst him and; (b) direct the appellants to reinstate the respondent in service withall consequential benefits. ( 2 ) THE case before the learned Single Judge was that the respondent was tried bygeneral Security Force Court on a charge under Section 31 (b) of the Border Securityforce Act (for short the Act) namely :- without proper authority extact from any person money wherein he was convicted and sentenced to dismissal from service. Thechallenge to the order of dismissal from service was made, inter alia, on the groundthat the trial was void ab initio because the Commandant of the appellant herein was awitness for the prosecution in the trial before the General Security Force Act. Thecommandant having dealt with the case under Rule 45 of the Border Security Forcerules, 1969 (for short the Rules ) was debarred under Rule 46 from being a witnesswhich, in turn, vitiated the ial. Further grounds of challenge are set out below:" ( i) Non-compliance of the mandatory provisions of B. S. F. Rule 45. (ii) Serious mis-directions on questions of fact as well as law, by the Law Officer who had acted as an adviser at the trial, in his final summing up to thecourt, which resulted in serious prejudice to the accused (petitioner ). (iii) Total absence of evidence about the factum of recovery and/or taking ofany money from the alleged victim by the petitioner, the graveness of thecharge. So much so that the said victim was never even examined before orat the impugned trial. Not only that even none of the prosecution witnesseshas deposed that they had seen the petitioner extorting money from the victim, as alleged. (iv) Admissions of inadmissible alleged confessional statements of thepetitioner given to his superiors under duress, contrary to Section 24 of theevidence Act. (v) Absence of independent corroboration of above statements in materialparticulars. Not only that even none of the prosecution witnesseshas deposed that they had seen the petitioner extorting money from the victim, as alleged. (iv) Admissions of inadmissible alleged confessional statements of thepetitioner given to his superiors under duress, contrary to Section 24 of theevidence Act. (v) Absence of independent corroboration of above statements in materialparticulars. (vi) Absence of independent corroboration of accomplice evidences, inmaterial particulars. (vii) Singling out the petitioner for prosecution bailing out the real culpritswho had admitted having taken and shared the money among themselves. (viii) None of the officers mentioned by the petitioner to act his Defendingofficer interms of B. S. F Rule 63 was made available mala fidely. Thiscaused serious prejudice to the petitioner in defending himself at the impugned trial. " ( 3 ) THE learned Single Judge, while dealing with the matter, was of the view that ofthe numerous grounds of challenge, two grounds were sufficient to set aside the Findings ol the General Security Court Force. In the impugned judgment the learnedsingle Judge takes note of the facts of the case as foltows:-"the petitioner joined the Border Security Force as direct Sub-Inspector indecember, 1987. He completed his basic training and thereafter he wasposted on Bengal border for undertaking practical training. In February,1989 the petitioner was sent to border out-post for doing practical trainingunder the guidance of one Naik Sheo Prasad where within two days of hisposting he apprehended a Bangladesh national, Nurul Islam, who was attempting to cross over to India. Nurul Islam was brought to the post in thepresence of other Border Security Force personnel and tocal villagerswhere he was physically searched. "the learned Single Judge notes that :-"according to the pelilioner, nothing was found. However, the foreignerwas pushed back by the petitioner at the instance of Naik Sheo Prasad (PW-6 ). The allegation against the petitioner is that he extorted a sum of 4,000bangladesh currency and, after having them converted into Indian rupees. distributed the same amongst the colleagues and subsequently collected theamount back. The Commandant of the Battalion conducted the proceedings and lateireferred TO the mailer to higher authorities for convening General Securityforce Court. Several witnesses were examined by the prosecution as well asby the defence. Ultimately the General Security Force Courl came to theconclusion that the charge against the petitioner stood proved and by way ofpunishment ordered dismissal from service. The Commandant of the Battalion conducted the proceedings and lateireferred TO the mailer to higher authorities for convening General Securityforce Court. Several witnesses were examined by the prosecution as well asby the defence. Ultimately the General Security Force Courl came to theconclusion that the charge against the petitioner stood proved and by way ofpunishment ordered dismissal from service. Statutory appeals, as providedunder the Act, were made but all failed and, therefore, the petitioner movedthe High Courl by way of the Writ Petition. " ( 4 ) THE learned Single Judge held lhal since the Commandant had been cited as awitness (PW-11) before the General Security Force Court and had conductedproceedings under Rule 45 of the Rules the Commandant has violated Rule 46, there-tore. the trial betore the General Security Court stood vitiated. While examining theevidence, the learned Single Judge came to the conclusion that PW-11 could not havebeen examinad by the prosecution before the General Security Force Court anil his introduction as a wilness as well as reliance on his evidence has introduced inadmissiblematerial and, theretore, the conclusions of the General Security Force Court based onirrelevant material could not be altowed to stand. The learned Single Judge has alsogone into the evidence of witnesses and came to the conclusion that the charge olextortion having not been proved against the petitioner (respondent herein), the findings of the General Security Court Force could not be sustained. ( 5 ) THE aforesaid judgment in C. W. 2435 of 1991 dated 11/04/1994 has beenchallenged by the appellant-UOI on the ground, inter alia, that the learned Singlejudge erred in the interpretation and application of Rule 46 and 45 and wrongly cameto the conclusion that the proceedings under Rule 45 of the Rules carried out by thecommandant who was a wilness vitiated the: trial. Another ground of challenge is that the learned Single Judge exceeded his jurisdiction under Article 226 of the Constitution of India in reappraising the evidence adduced betore the General Security Court and substituting his own conclusion in placeof the General Security Force Court s. ( 6 ) THIS was not a case where the High Court should have interfered in exercise of itsjurisdiction under Article 226 of the Constitution as it was not a case of no evidence while sufficiency, quality and quantity of evidence could not be adjudicated upon bythe High Court. Another ground of attack is to the Finding that Rule 126 of the Rules had beenviolated by the Law Officer in rendering opinion on it question of fact. ( 7 ) WE have been taken through the record of the case as also judgments on variousgeneral propositions. The ambit of the power under Article 226 of the Constitutionhas been laid down by the Supreme Court as also by a number of judgments of thehigh Court. In C. W. 3369 of 1995 Ex. Constableashok Kumar v. Union of India (decided on 1st March, 2 (MK)) this Division Bench has held as under: "we may at the outsetset slate that the judicial review envisaged under Article226 of the Constitution in respect of the proceedings, in which the defencepersonnel serving in the Army, Navy, Air Force or even para-military forcewhen commit any offence, are dealt with by a special provision contained instatutory enactments governing them and not by normal Criminal Procedure Code is not in the nature of an appellate Court. These personnel are tobe dealt with under such enactments which are complete codes in themselves and prescribe the procedure tobe foltowed incases governed by it. Personnels that ate tried by such procedure are provided with sufficientsafeguards by way of further appeal to the Heads of the organisations andthen ultimately to the Union Government. Therefore, ordinarily thereshould be a Finality to the proceedings as envisaged by these enactments, inthis case the Border Security Force Act and the Border Security Forcerules. The High Court s powers under Article 226 of the Constitution tojudicially review such findings is for a limited purpose, namely, for Findingout whether there has been infraction of any mandatory provisions of theact prescribed and procedure which has caused gross miscarriage or forfinding out whether there has been violation of principles of natural justicewhich vitiated the entire proceedings or that the authority exercising thejurisdiction has not been vested with the jurisdiction under the Act. Thepower of judicial review cannot be that of an appellate authority permittingto re-appreciate the evidence and come to a conclusion that the evidence issufficient for the conclusion arrived at by the competent authority under theact. Thepower of judicial review cannot be that of an appellate authority permittingto re-appreciate the evidence and come to a conclusion that the evidence issufficient for the conclusion arrived at by the competent authority under theact. The Supreme Court has held in a number of judgments that at thehighest review of the Findings of these authorities cannot be higher thanthose exercised by the High Court under Article 227 of the Constitutionagainst an order of an inferior tribunal and, therefore, the High Courtwould not be justified in entering into the forbidden zone of re- appreciating the evidence as a Court of Appeal. A Division Bench of this Court in Ex. Maj. R. S. Bad/war v. Union of India and Others, 58 (1995) DLT. 339 had anoccasion to go into the question of the nature of judicial review and hasdwelt into all aspects thereof. It has held :-"the jurisdiction of this Court under Article 226 is, therefore, defined and islimited to the extent of finding it. whether there is an error of jurisdictionand it is a case of total luck of evidence. This Court, as has been consistentlyheld, does not sit as a Court of Appeal. In case legal, evidence was availableon which a finding could be given, the sufficiency or otherwise was for theauthority to decide and this Court cannot substitute its opinion for that ofcourt-Martial. "further: "the Court on its own appraisal of the evidence may come to a contraryconclusion but it is not open to quash an order until and unless the impugned order was based on no evidence at all. The sufficiency and insufficiency of evidence is not a matter for this Court to consider in a. petitionunder Article 226 of the Constitution of India. The same is for the Authorityto decide. The error or defect of procedure of which some instances havebeen given by learned Counsel appearing for the petitioner, cannot beentertained in the present proceedings as these may be mere procedural irregularities and they cannot be regarded as errors of law apparent on thelace of the record and no challenge was made at an appropriate stage andthe principles of natural justice have not been violated. " ( 8 ) THE judgment has found favour with the Supreme Court in Major R. S. Budhwar v. Union of India and Others (1996) 9 SCC 502 . " ( 8 ) THE judgment has found favour with the Supreme Court in Major R. S. Budhwar v. Union of India and Others (1996) 9 SCC 502 . In the backdrop of the law, as slated, we proceeded to examine this matter onmerits. Investigation into an offence alleged to have been committed by a person subject to the Border Security Force Act, 1968 (for short the Act ) is dealt with underchapters V to VII of the Rules. For the present case:the relevant Chapter is VII andcommences with Rule 43 by completing an offence report wherein the allegations arereduced in writing in Form set out in Appendix-IV. The matter is then proceeded withunder Rule 44 by the Company Commander in case of a person subject to the Actother than an officer. However, under the proviso to Rule 44 the Commandant canreserve the ease or disposal by himself. ( 9 ) IN the present case it appears that when it came to the knowledge of the Commandant that an offence of taking money from a foreign national had been reported,he took upon himself to deal with the case in the First instance and, therefore, dealtwith it under proviso to Rule 44 and proceeded to deal with it under Rule 45 whichreads as follows: "45. Hearing by the Commandant : The Commandant shall hear the chargeagainst all ranks under sub-rule (1) of Rule 44 and may:- (i) award any of the punishments which he is empowered to award, or (ii) dismiss the charge, or (iii) remand the accused, for preparing a record of evidence or for preparation of an abstract of evidence against him, or (iv) remand him for trial by a Summary Security Force Court :provided that. in cases where the Commandant awards more than 7 days imprisonment or detention he shall record the substance of evidence andthe defence of the accused:provided further that, he shall dismiss the charge if in his opinion the chargeis not proved by may dismiss it if he considers that because of the previouscharacter of the accused and the nature of the charge against him i ( is notadvisable to proceed further with it :provided also that, in case of all offences punishable with death a record ofevidence shall be taken. (S. 53, 55)There is , however, an embargo placed on the Commandant dealing with thecase. (S. 53, 55)There is , however, an embargo placed on the Commandant dealing with thecase. If he is disqualified under Rule 46, which reads as under :46. Attachment to another unit : The Commandant shall not deal with anycase :- (i) where the offence with which the accused is charged is against the Commandant himself, or (ii) where the Commandant is himself a wilness in the case against the accused, or (iii) where the Commandant is otherwise personally interested in the caseand the accused shall be attached to another battalion or unit for disposal ofthe case under the order of the Deputy Inspector general:provided that a Commandant shall not be disqualified from hearing acharge merely because the offence was committed againsi the properly of aforce Mess, band or institution of which the Commandant is a member ortrustee or because the offence is one of the disobedience of suchcommandant s orders. "( 10 ) THE interpretation placed on the embargo on Rule 46 by the learned Singlejudge, with very great respect, appears to be incorrect. In our opinion Rule 46prohibits a Commandant from holding proceedings under Rule 45 and taking consequent steps, provided he himself, is a witness in the ease against the accused. Thisnecessarily means that in the-first instance the Commandant should have been a wilness to the occurrence and togically, therefore, being a witness to the occurrence, cannot dispose off nor deal with the proceedings envisaged under Rule 45 and thoseconsequent thereto. By no stretch of reasoning can it he inferred that merely becausea Commandant. who has proceeded by taking cogni/. anee of the offence under Rule 44and heard the charge under Rule 45. remanded the accused for preparation of recordof evidence under Rule 48 or for preparation of abstract of evidence against himunder Rule 49 and thereafter deal with the case under Rule,51 be the wilness as envisaged under Rule 46. The authenticity of the procecdings held under Rule 45 and/orproceedings held thereafter in accordance with rules as required of a Commandantcan always be deposed to by him as a witness. at the trial and his deposing at the trialcannot vitiate the trial as having violated Rule 46. To hold otherwise, in our opinion,would lead to disastrous consequences. No conviction under the Act is possible. at the trial and his deposing at the trialcannot vitiate the trial as having violated Rule 46. To hold otherwise, in our opinion,would lead to disastrous consequences. No conviction under the Act is possible. Everyproceedings held by the Commandanl at the pre-trial stage, if required to be proved,would necessitate the Commandanl appearing as a wilness and this itself would vitiatethe trial. Such as interpretation, with great respect, cannot be accepted. ( 11 ) IN the present case it appears that the accused was marched up before the Commandant under Rule 45 when the Commandant heard the charge against him in thepresence of the accused and decided to remand the accused for preparing the recordof evidence under Rule 45 (iii ). The record of evidence was prepared by some otherofficer who, alter preparing the record of evidence in accordance with Rule 48. placed[lic same before the Commandanl tor disposal of the case under Rule 51. Rule 51 requires that the Commandanl may, after going through the record orahstract of evidence, (i) dismiss the charge; (ii) rehear the charge and award one ofthe summary punishments or (iii) lry the accused-by a Summary Security Force Courtwhere he is empowered so to do or (iv) apply to a competent officer or authority toconvene a Court for the trial of the accused. . ( 12 ) THE Commandanl, after applying his mind to the material collected by way ofrecord of evidence, came to the conclusion that the case could best be dealt withunder Rule 51 (2) (iv ). Consequently, he applied to a higher authority to convene acourt for the trial of the accused, This he did by making an application under Rule 52in the prescribed form. According to the Rules, once the General Security Force Courl is convened, thenit is for the Court to go into the veracity of the material placed before ii by a Prosecuting Officer and deliver judgment thereon. ( 13 ) THE reasoning, lhal the Commandant having dealt with the case at the pre-lrialslage could not he called as awitness at the trial, is, with very great respect, not correct. In any case. it is settled law that pre-lrial proceedings cannot vitiate the trial unless grave prejudice is caused to the accused or lack of jurisdiction to hold thepre-lrial proceedings can be shown. We have already pronounced upon this aspect ofthe matter in Ex. In any case. it is settled law that pre-lrial proceedings cannot vitiate the trial unless grave prejudice is caused to the accused or lack of jurisdiction to hold thepre-lrial proceedings can be shown. We have already pronounced upon this aspect ofthe matter in Ex. Constable Ashok Kumar s case on the ambit and scope of the proceedings conducted by the Commandant at the pre-trial stage and held : "a bare perusal of Rule 45 would indicate that by its very nature, the hearing of evidence by the Commanding Officer at the initial stage when theperson charged with an offence is brought before him is for the purpose ofascertaining whether the charge should be dismissed or be proceeded with. If the Commanding Officer is of the opinion that the charge ought not to beproceeded with, the person charged with the offence has to be releasedforthwith. On the other hand, if the Commanding Officer is of the opinionthat the charge ought to be proceeded with, he may then foltow the procedure prescribed for further proceeding s. The object of the Rule, it appears,is to hold a sort of preliminary investigation by the Commanding Officerwith a view to ascertain whether a prima facie case exists to justify furtherproceedings and the nature of those proceedings, namely, he can eitheraward any punishment which he is empowered to or dismiss the charge orremand the accused for preparing a record of evidence or for preparationof an abstract of evidence against him or remand him for trial by Summarysecurity Force Court, but in cases where the offence is punishable withdeath, a record of evidence shall be taken. In-this case, the Commandantdirected recording preparation of record of evidence by order dated 6/08/1992. Once, therefore, having come to the conclusion that thecharge ought to be proceeded with, the Commandani directed the formalrecording of statement of witnesses, as provided, to enable remand of theaccused tor trial by General Security Force Court, It is thus implicit in theprocedure prescribed that any error or irregularity at the stage before thecase is charged for the purpose of having the evidence reduced to writing. will not vitiate the subsequent trial as the guilt of the accused has to be established not on the basis of what the Commanding Officer might have doneor might not have done at the initial stage. will not vitiate the subsequent trial as the guilt of the accused has to be established not on the basis of what the Commanding Officer might have doneor might not have done at the initial stage. Any irregularity in procedure atthat initial stage might have a bearing on the veracity of witnesses examinedat the trial or on the bonafide of theCommanding Officer or on thedefence that may be set up by the accused at the trial, but the irregularity. by no means, he recorded as effecting the jurisdiction of the Court toproceed with the trial. Therefore, even if it is assumed thut I here was non-compliance with the requirement of Rule 45. the non-observance of therule is not such as to vitiate the trial and ultimate conviction of thepetitioner. " (Emphasis. supplied) ( 14 ) FROM the legal position, as has been slated above, it is clear that the Imdings ofthe learned Single Judge, with very great respect, on this issue are not sustainable. Having dealt with the ambit and scope of the powers of the High Court underarticle 226 as also the effect of pre-trial proceedings, ordinarily, we would haverefrained from tooking into the record of evidence. However, since the learned Singlejudge has re-appreciated the evidence holding lhal PW-II, the Commandant, couldnot have been a witness and that reliance on his evidence amounts to admiting intoconsideration at the trial irrelevant material and also on appreciation of statement ofwitnesses before the General Security Force Court held that the material does notprove the charge, it has become necessary for us to examine the record of the trialproceedings. A perusal of the proceedings of the General Security Force Court showsthat the Court was presided over by Mr. S. C. Yadav, Commandant, 39 Bn BSF, andhaving four other Members, Mr. K. J. Keswani, deputy Commandant, 152 Bn SSF, Mr. Hakam Singh, deputy Commandant, 53 Bn BSF, Mr. I. M. Sinha, deputy Commandant, 161bn BSF and Mr. N. D. Bahuguna, deputy Commandant, 54 Bn BSF. The Law Officer wasmr. Rajinder Pandcy of JAD (Law) HO SB Frontier. The Prosecutor in the case wasmr. Shivaji Jadav, deputy Commandant, 109 Bn BSF. (who was not legally qualified)while the Delending Officer was Mr. S. K. Dev. deputy Commandant. JAD (MT) HO Calcutta Sector, BSF (also not legally qualified ). N. D. Bahuguna, deputy Commandant, 54 Bn BSF. The Law Officer wasmr. Rajinder Pandcy of JAD (Law) HO SB Frontier. The Prosecutor in the case wasmr. Shivaji Jadav, deputy Commandant, 109 Bn BSF. (who was not legally qualified)while the Delending Officer was Mr. S. K. Dev. deputy Commandant. JAD (MT) HO Calcutta Sector, BSF (also not legally qualified ). ( 15 ) IT may be mentioned that a question by the Presiding Officer had been put to theaccused: "do you object to be tried by me as Presiding Officer or by any of the officers ehose named you have heard read over?" to which the accsedanswered No. ( 16 ) THE charge-sheet was then read out to the accused, explained to him and then aquestion was put as to whether the accused pleads guilty to the charge against him towhich the answer was not guilty . Yet another question that was pill to the accusedwas: "do you wish to apply for an adjournment on the ground that any of therules related to. procedure before trial have not been complied with andthat you have been prejudiced thereby or on the ground that you have nothad sufficient opportunity for preparing your defence?" - to which theanswer of the accused was no . It is only hereafter that the prosecutionproduced its witnesses. The charge that was framed against the accused wasas foltows:"thal at BOP BARUNHAT on 14. 2. 89 apprehended a Bangladesh nationalnamed Nurul Islam, son of Ajif Islam, village Nolta, PS, Kaliganj, District. Satkhira (Bangladesh) and without proper authority exacted. Bangladeshitaka 4000. 00 (Bangladeshi taka four thousand only) from the said Bangladeshnational. "therefore, essentially what was required to be proved was violation of Section31 (b) of the BSF Act and not violation of Section 31 (a) as it appears to have beennoted by the learned Single Judge. From a perusal of the record it appears thal the prosecution cited 11 witnesses to bring home the charge while the defence examined 6 witnesses to counterthe same. ( 17 ) THERE is certainly evidence on record to show that the accused, ST Om Prakashwas Platoon Commander of the BOP Barunhat and that on 14/02/1989 ataround 5. 30 hours SI 0m Prakash atong with other two constables, namely, Brindavansingh and Dineshwar Ram had gone on patrolling duty. The patrolling party returnedatong with one apprehended Bangladesh national foltowed by a few villagers. 30 hours SI 0m Prakash atong with other two constables, namely, Brindavansingh and Dineshwar Ram had gone on patrolling duty. The patrolling party returnedatong with one apprehended Bangladesh national foltowed by a few villagers. It is inevidence that the civilians after coming to the post were talking with SI 0m Prakashand after sometime SI 0m Prakash took that apprehended Bangladesh national atongwith him out of the post and the said Bangladesh national was pushed back intobangladesh territory. It is also in evidence that SI 0m Prakash and Naik Sheo Prasadtold Naik Ashok Ghosh to get the Bengladeshi takas 4 (X)0 exchanged for Indian currency which was done and after exchanging the currency Rs. l,95 ( ). 00 were handed overto Naik Sheo Prasad which amount ultimately found way into the hands of SI 0mprakash. This amount was then distributed amongst various personnels. It is also inevidence that the name and address" of the apprehended Bangladesh national wasrecorded in "push Back Register". PW-6, Naik Sheo Prasad has slated in no uncertainterms that: "the wilness continue his statement. After that SI 0m Prakash went outwith the civilians and apprehended BD National and pushed back BD national inside the BD through a riverbed. On 16th February 1089 SI 0mprakash called NK Ashok Ghosh of BWHG inside his room, where I wasalso present, SI 0m Prakash handed over BD Taka 4,000. 00 to NK Ashokghosh in my presence and asked him to gel lhal Taka exchanged for Indiancurrency. SI 0m Prakash also told NK Ashok Ghosh that he should take Jaisingh alongwith him and then both LT Jai Singh and Ashok Ghosh went outfrom the BOP for exchanging BD Taka into Indian currency. At about 1700hrs or 1800 hrs, Naik Ashok Ghosh came back at the BOP and enquiredabout SI 0m Prakash. Since Om Prakash was not present at that moment, Naik Ashok Ghosh handed me over Rs. 1,950. 00 Indian currency stating that to further hand over that money to SI 0m Prakash. After some timesi 0m Prakash came at the BQP and then I handed over Rs. 1,950. 00- to him. On 17th Feb. 1989, the exact date I do not remember, CT Chunnu Ram-gave me Rs. 70. 00 during evening hour. He also told me that some BD Takahas been taken from relative of apprehended BD national. And after exchanging into Indian currency money are being distributed. 1,950. 00- to him. On 17th Feb. 1989, the exact date I do not remember, CT Chunnu Ram-gave me Rs. 70. 00 during evening hour. He also told me that some BD Takahas been taken from relative of apprehended BD national. And after exchanging into Indian currency money are being distributed. "the same wilness to an answer to Court question has slated : "while giving money CT Chunnu Ram told me thal SI 0m Prakash hasgiven this money for sweets. After receipt of the money from LT Chunnuram I enquired from SI 0m Prakash as to from where this amount hascome. SI 0m Prakash told me lhal 4,000. 00 BD Taka was received from therelative of apprehended BD national and the same was converted into Indian currency and share of mine have been given to me. Next day CT Vrindavan Singh had taken back Rs. 70. 00 from me slating thal the same has beenasked by SI 0m Prakash. PW-7 is Shkukil Hazong 65 Bn BSF. He slates : "in. THE month of March 1989, I came to know through a source that some illegal transaction of money had taken place at the BOP Barunhat on 14. 2. 89. On receipt of information about illegal transaction which had taken place atthe B ()P I further enquired as to who had taken money and from whom,and when that the money was given to the BOP personnel. I called SI 0mprakash from Barunhat BOP to Coy HO and enquired about the matter. When I asked SI Om Prakash about the illegal transaction of money, he admitted that on M. 2. S9, he had a patrol and apprehended a BD national andexacted 4,000. 00 BD Taka from the possession of the apprehended BD national. He further admitted that after exacting BD Taka 4,000. 00 he did notmake a seizure memo nor he deposited money with customs. SI 0mprakash also told me that the apprehended BD national has been pushedback to the Bangladesh. SI 0m Prakash also admitted that exacted 4,000bd Taka had been further converted into Indian currency amounting to Rs. 1. 950. 00. "this wilness further states that: "when Comdt. 65bn BSF was talking with Si 0m Prakash at BOP Barunat at that time Subedar S. C. Sarkar was also present there. I had called SIOm Prakash at Coy HQrs. SI 0m Prakash also admitted that exacted 4,000bd Taka had been further converted into Indian currency amounting to Rs. 1. 950. 00. "this wilness further states that: "when Comdt. 65bn BSF was talking with Si 0m Prakash at BOP Barunat at that time Subedar S. C. Sarkar was also present there. I had called SIOm Prakash at Coy HQrs. Hingalgunj and enquired about the incidence, SIOm Prakash admitted that he had extracted 4,000. 00 BD Taka from apprehended BD national on 14. 2. S9. "pw-8 is Subedar S. C. Sarkar 65 Bn BSF. He stales : "while infall in, on being asked by the Comdt. as to who all received themoney for sweets? at that lime SI 0m Prakash was asked to stand separatelyby the Comdt. After discussion with BOP personnel, Comdt called SI 0mprakash in my presence and inquired as to whether BD Taka was extractedfrom apprehended BD National, who was released later on, to this SI 0m Prakash admitted his guilt, saying that "mujhse GALTI HO GAYA. MUJHE MAF KAR DIJIYE. AISA GALTI KABHI NAHI KARUNGA. SI Om Prakash admitted to the Comdl. that he extracted 4,000. 00 BD Takafrom apprehended BD national on 14/02/1989. SI 0m Prakash hadalso given in writing to the Comdt. about the confession. After one/twohours of stay/enquiry at Barunhal BOP, Comdt. left for BN HOrs. " ( 18 ) WE have given extracts of statements just to satisfy ourselves that the case put upby the defence of no evidence which necessitated the learned Single Judge examiningthe evidence fell into error in reappraising the evidence to arrive at a different conclusion. We are of the opinion that this is Uoi a case of no evidence requiring investigation by the High Court in its powers of judicial review under Article 226 of theconstitution. Coming to the next challenge of violation of Rule 126 by the Law Officer, itwould be appropriate to set out the Rule before discussing the same. It reads asunder: 126. Power and Duties of law officer: Where a Law Officer has beennamed to act on the Court, he shall -. Coming to the next challenge of violation of Rule 126 by the Law Officer, itwould be appropriate to set out the Rule before discussing the same. It reads asunder: 126. Power and Duties of law officer: Where a Law Officer has beennamed to act on the Court, he shall -. (a) give his opinion on any question of law relating to the charge or trialwhenever so required by the Court, the prosecutor or the accused: (b) inform the Court of any irregularity or other infirmity in the proceedings; (e) inform the convening officer and the court of any infirmity or defect inthe charge or in the constitution of the Court: (d) sum up the evidence and give his opinion on any question of law. beforethe Court proceeds to deliberate upon its findings. (R. 97) (2) It shall be the duty of the Law Officer to ensure that the accused doesnot suffer any disadvantage in consequence of his position as such. or because of ignorance or incapacity to examine or cross-examine witnesses andfor this purpose the Law Officer may, with the permission of the Court, callwitnesses and put questions to them which appear to him to be necessary ordesirable. (3) In the discharge of his duties, the Law Officer shall maintain an attitudeof strict impartiality. (4) Where any opinion has been given by the Law Officer to the Court onany matter before it, it may be entered in the proceedings, if the Law Officer of the Court desires it to be entered. (5) The Law Officer shall represent the Chief Law Officer at a Securityforce Court. (S. 83)" ( 19 ) UNDOUBTEDLY the Law Officer is required to maintain an attitude of strict impartiality and while slimming up the evidence give his opinion only on questions of lawbefore the Court proceedings and should not dwell upon questions of fact. Merely because the Law Officer in this case- has while summing up staled the PW-11 corroboratesthe statement of other witnesses does nol necessarily mean that the address of the law Officer to the Court has prejudiced the outcome to vitiate the trial. It may be noted that thelaw Officer while addressing the court opened his address as follows:- "gentlemen,you have very patiently and attentively heard the evidence in this case andthe ctosing addresses of the Defence and the Prosecution. It may be noted that thelaw Officer while addressing the court opened his address as follows:- "gentlemen,you have very patiently and attentively heard the evidence in this case andthe ctosing addresses of the Defence and the Prosecution. Betore you ctoseto consider you Findings and the charges against the accused, it is my duly toexplain the law relating to the charge upon which the accused has been arranged, the issues raised and to summarise the evidence. Before I proceedfurther, I must make it very clear to you that you are the sole judges for thefacts as well as the Law. It is nol my duly to express any opinion on mattersof facts and if at all I do so inadvertently, you should ignore it completely". ( 20 ) WE are, therefore, of the opinion that the opinion of the Law Officer that PW-11corroborates the prosecution version can at best be an irregularity which does nol goto the root of the matter calling for the trial to be vitiated. ( 21 ) IN view of the above reasoning, we are, with very great respect, unable to upholdthe judgment of the learned Single Judge and, therefore, set aside the judgment andorder dated 11/04/1994 of the learned Single Judge in Writ Petition No. 2435 of1991 and altow the appeal. There shall be no order as to costs.