JUDGMENT Ashok Bhushan, J. 1. We have heard Sri Shishir Kumar, counsel for appellants, and Sri G. D. Mukherji, counsel appearing for the respondent. 2. BY this appeal, the appellants have challenged the judgment of learned single Judge in Writ Petition No. 20405 of 1997, Ram Adhar Tiwari v. Union of India and others. Learned single Judge vide judgment dated 19th August, 1997 has allowed the writ petition filed by the respondent setting aside the order imposing sentence in the summary court-martial dated 30th July, 1997. Brief facts giving rise to this appeal are : respondent at the relevant time was working as Havaldar in Corps of Electrical and Mechanical Engineering (E.M.E.) and was posted at Station Workshop, Allahabad. The respondent was detailed to look after the Canteen Store Department (C.S.D.) run by E.M.E. Station Workshop. In the checking of stock of canteen, at the time of handing over charge, shortage was found. A Court of enquiry was held to ascertain the facts. In the court of enquiry, the Commanding Officer, Colonel S. C. Verma, was also examined as witness No. 1. After the Court of enquiry, the charges were issued to the respondent by charge-sheet dated 6th June, 1997. The Commanding Officer, Sri S. C. Verma, ordered for trial of the respondent by summary court-martial. In the summary court-martial proceedings, an application dated 14th June, 1997 was filed by respondent praying that summary court-martial be dissolved and reference be made to the Commander, Headquarters, Sub-Area, Allahabad to convene a district court-martial. In the aforesaid application, it was stated that Sri S. C. Verma, the Commanding Officer being witness No. 1 in the Court of enquiry, he will be called as prosecution witness to depose during the trial, hence reference be made for general court-martial. The said application was rejected. The respondent filed Writ Petition No. 20405 of 1997, praying for quashing of the summary court-martial proceedings. In the aforesaid writ petition, an interim order was granted on 24th June, 1997, staying proceedings of summary court-martial for a period of one month. By the order dated 24th June, 1997, two weeks time was granted to the appellants to file counter-affidavit and thereafter one week was allowed to the respondent to file rejoinder-affidavit. In the aforesaid writ petition, an interim order was granted on 24th June, 1997, staying proceedings of summary court-martial for a period of one month. By the order dated 24th June, 1997, two weeks time was granted to the appellants to file counter-affidavit and thereafter one week was allowed to the respondent to file rejoinder-affidavit. The respondent filed an application for extension of the interim order well before expiry of the interim order to which application an order was passed on 22nd July, 1997 directing the application to be listed in the next supplementary cause list. The appellants who were respondents in the writ petition served their counter-affidavit and filed counter-affidavit along with application for vacation of stay order on 24th July, 1997. The respondent has also informed the Commanding Officer that he has filed an application for extension of the stay order in the writ petition and case is fixed for 1st August, 1997. On 29th July, 1997 summary court-martial proceedings started. The counsel for the respondent was informed. It is stated that on 29th July. 1997 when the summary court-martial proceedings started, the Commanding Officer was informed that matter is fixed for 1st August, 1997 and adjournment was prayed for till 2nd August, 1997. The summary court-martial proceedings were adjourned for the next date. On the next date, the counsel for the respondent could not appear and sent a medical certificate. On 30th July, 1997, the summary court-martial proceedings proceeded and were completed. One Captain H. R. Chandel was appointed as friend of the accused. By order dated 30th July, 1997, summary court-martial sentenced the respondent for 90 days detention in military custody and reduced his rank from Havaldar to Craftsman. The respondent was allowed to amend the writ petition challenging the order dated 30th July, 1997. Supplementary counter-affidavit and supplementary rejoinder-affidavit were filed in the writ petition and learned single Judge vide its judgment dated 17th August, 1997, allowed the writ petition. 3. Learned single Judge while allowing the writ petition recorded following reasons : (i) Commanding Officer was Chairman of the Canteen Committee and has himself caused the investigation which was admitted by him in the court of enquiry. 3. Learned single Judge while allowing the writ petition recorded following reasons : (i) Commanding Officer was Chairman of the Canteen Committee and has himself caused the investigation which was admitted by him in the court of enquiry. The shortage was detected in May, 1996 and charge-sheet submitted on 6th June, 1997, which shows that one year time was taken in reaching the stage of issuing charge sheet and the respondents to the writ petition were not having any feeling of urgency which suddenly arose when petitioner to the writ petition obtained an interim stay on 24th June, 1997. There was no reason for immediate action to go on with the trial without reference to officer empower to convene a district court-martial, summary court-martial or general court-martial. (ii) There was no reason for refusing adjournment on the date of trial when the counsel for respondent was ill and sought adjournment by producing medical certificate. The appellants could not have proceeded with the trial without giving an opportunity to the respondent to appoint another friend to assist him during the trial of his own choice. The friend imposed on the respondent by the appellants has already affirmed an affidavit on behalf of the appellants in the writ proceeding. There was violation of Rule 129 of Army Rules. 4. The counsel for the appellants challenging the judgment of learned single Judge has made various submissions. Following are the submissions raised by the counsel for the appellants in support of this appeal : (i) Learned single Judge has misread the provisions of Section 120 of Army Act. Reference is only necessary if a person is tried under Sections 34, 37 and 69 of the Act. (ii) Findings recorded by learned single Judge regarding non-compliance of Rule 129 of Army Rules is based on no evidence. (iii) Charges levelled against the respondent are fully proved and he also admitted the charges and has made deposit of the amount. (iv) This Court in exercise of jurisdiction under Article 226 of the Constitution will not quash the proceedings of summary court-martial, which were based on evidence. (v) There is very limited scope of judicial review of court-martial proceedings. (vi) It be clarified by this Court that the appellants are entitled to proceed again against the respondent as per observation of learned single Judge in the impugned judgment. (v) There is very limited scope of judicial review of court-martial proceedings. (vi) It be clarified by this Court that the appellants are entitled to proceed again against the respondent as per observation of learned single Judge in the impugned judgment. The counsel for the appellants placed reliance on various decision, namely, Bhuwneshwar Singh v. Union of India and others, JT 1993 (5) SC 154 ; Union of India v. Himmat Singh Chahar, AIR 1999 SC 1980 ; Union of India and others v. Major A. Hussain, AIR 1998 SC 577 ; Ruval Kumar Vasave v. Chief of Army Staff and others, 1986 UPLBEC 663 ; Union of India and others v. J. S. Brar, JT 1993 SC 773 and General Inder Jit Kumar v. Union of India and others, JT 1997 (4) SC 8. 5. The counsel for respondent refuted the submissions of counsel for the appellants and has supported the judgment of learned single Judge. The counsel for the respondent contended that Commanding Officer, Colonel S. C. Verma, having personal interest in the matter being Chairman of the Management Committee of Canteen was not competent to hold summary court-martial, relying on Section 120 Note (d) of Army Act. It was contended that there was clear violation of Rule 129 since respondent could not appoint a friend of his choice to assist him in the trial. The friend of accused thrust upon the respondent to assist him had already filed counter-affidavit against the respondent in the writ petition and the respondent objected his appointment as friend of accused. 6. The counsel for the respondents replying to the submissions of counsel for the appellants that appellants can again proceed against the respondent as directed by the learned single Judge contended that appellants cannot proceed now against the respondent. It was contended that holding of successive trial is barred by Army Amendment Act, 1992, which has omitted Section 127 of the Army Act. We have heard submissions of both the counsel and have perused the records. The first issue, which has arisen for consideration in this appeal, is as to whether in accordance with Section 120 of the Army Act, the Commanding Officer was required to make reference for general court-martial, before proceeding with the summary court-martial and secondly whether there has been violation of Rule 129 of the Army Rules in the present case. The first issue, which has arisen for consideration in this appeal, is as to whether in accordance with Section 120 of the Army Act, the Commanding Officer was required to make reference for general court-martial, before proceeding with the summary court-martial and secondly whether there has been violation of Rule 129 of the Army Rules in the present case. Thirdly as to whether the appellants can still proceed against the respondent as permitted by learned single Judge. 7. Section 108 of Army Act, 1950, provides for four kinds of court-martials, i.e., general court-martial, district court-martial, summary general court-martial and summary court-martial. Section 120 of the Army Act provides for powers of summary court -martial. Section 120 of the Army Act is extracted below : "120. Powers of summary courts-martial.-(1) Subject to the provisions of sub-section (2), a summary court-martial may try any offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender, an officer holding a summary court-martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69, or any offence against the officer holding the Court. (3) A summary court-martial may try any person subject to this Act and under the command of the officer holding the Court, except an officer, Junior commissioned officer or warrant officer. (4) A summary court-martial may pass any sentence which may be passed under this Act, except a sentence of death or (imprisonment for life) or of imprisonment for a term exceeding the limit specified in sub-section (5). (5) The limit referred to in sub-section (4) shall be one year if the officer holding the summary court-martial is of the rank of lieutenant colonel and upwards, and three months if such officer is blow that rank." 8. The provisions which need consideration for the purposes of the present case is Section 120 (2) of the Army Act which provides that when there is no grave reason for immediate action, an officer holding summary court-martial shall not try with regard to certain offences without reference to the officer empowered to convene a district court-martial or summary general court-martial. The provisions which need consideration for the purposes of the present case is Section 120 (2) of the Army Act which provides that when there is no grave reason for immediate action, an officer holding summary court-martial shall not try with regard to certain offences without reference to the officer empowered to convene a district court-martial or summary general court-martial. In the present case, it is clear from the material on the records that detection of shortage in the stock was found in May, 1996. The Court of enquiry was held and charges to the respondent were given only on 6th June, 1997 which shows that there was no grave reason for immediate action, since had there been any grave reason, there was no occasion to initiate action for court-martial after expiry of one year from the date when shortage was detected. The submission of counsel for the appellants is that Section 120 (2) is attracted only with regard to offences punishable under any of the Sections 34, 37 and 69 and since in the present case, the respondent was charged with an offence under Section 52 (b) and 63 of the Army Act, the said provisions are not attracted and summary court-martial could have been held in the matter. Learned counsel for the respondent has submitted that offence in the present case was against the officer holding the Court, hence Section 120 (2) is attracted. Counsel for the respondent has referred to and relied on Note (d) said to be appended to Section 120 and quoted in paragraph 7 of the writ petition. The counsel for the respondent has read out the aforesaid Note from book, namely, Compendium of Law for Defence Service, the University Book Agency, New Edition 1991. We have examined the aforesaid Note (d) appended to Section 120 in the aforesaid book. The note, which is being relied by counsel for the respondents appears to be note of the author of the book. The aforesaid note is not statutory note, which can be said to be part of the Section or the Act. Thus, Note (d) of the Act or Section relied by counsel for the respondent cannot be treated to be part of the Act or Section. However, the words "any offence against the officer holding the Court" are to be looked into for finding out the true scope and its meaning. Thus, Note (d) of the Act or Section relied by counsel for the respondent cannot be treated to be part of the Act or Section. However, the words "any offence against the officer holding the Court" are to be looked into for finding out the true scope and its meaning. Section itself does not define that what are offences against the officer holding the Court. Section 3 (xvii) defines offence as follows : "3 (xvii). "offence" means any act or omission punishable under this Act and includes a civil offence as hereinbefore defined." The offences in respect of property has been defined in Section 52 of the Army Act which is quoted as below : "52. Offences in respect of property.-Any person subject to this Act who commits any of the following offences, that is to say,- (a) commits theft of any property belonging to the Government, or to any military, naval or air force mess ; band or institution, or to any person subject to military, naval or air force law ; or (b) dishonestly misappropriates or converts to his own use any such property ; or (c) commits criminal breach of trust in respect of any such property ; or (d) dishonestly receives or retains any such property in respect of which any of the offences under Clauses (a), (b) and (c) has been committed, knowing or having reason to believe the commission of such offence ; or (e) wilfully destroys or injures any property of the Government entrusted to him ; or (f) does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person. ' shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned. In the present case, there is no allegation of any offence with regard to person of the Commanding Officer. The submission of counsel for the respondent is to the effect that since the Commanding Officer was Chairman of the Management Committee running the C.S.D. Canteen, hence allegation of misappropriation regarding the amount will be an offence against the Commanding Officer. The counsel for the respondent has specifically referred to Clause 22 of the Standard Operating Procedure (filed as Annexure-3 to the writ petition). The counsel for the respondent has specifically referred to Clause 22 of the Standard Operating Procedure (filed as Annexure-3 to the writ petition). Clause 22 of the Standing Operating Procedure is extracted as below : "22. Administration.-A management Committee constituted as under will administer, control and run the canteen. (a) C.O. : Chairman (b) O.I.C. canteen : Any Officer nominated by the C.O. (c) J.C.O.-in-charge : Any J.C.O.-do (d) Canteen Staff : Canteen N.C.O. Salesman Canteen Clerk." 9. We have carefully perused the Standard Operating Procedure. The aforesaid Standard Operating Procedure provides for several procedural Rules with regard to running of C.S.D. Canteen, Maintenance of Account, Source of Income, Disposal of Canteen Profits. Clause 21 which is relevant for the purpose is extracted below : "21. Disposal of profits.-On the 5th of every quarter, the total net profit of the proceeding Quarter along with its details will be put up for approval of the C.O. by C.I.C. Adm. Op. The distribution of the profit will be completed within a week after the same is approved by the C.O. The profit will be distributed as per following guidelines which may be reviewed, if felt necessary : (a) Sub Area Officers Mess : 10% (b) J.C.O. Club : 5% (c) Officers Amenity : 5% (d) Coy Fund : 60% (e) Capital : 20%." 10. From a perusal of various clauses of the aforesaid Standard Operating Procedure, it is clear that Commanding Officer cannot be said to be owner of the assets and the properties of the Canteen. The Administration of Canteen is vested in the Management Committee whose constitution is mentioned in Clause 22 and is guided by Commanding Officer for overall policy. Thus, the administration of the Canteen is entrusted to a body not on an individual and any offence committed by a person while functioning as Canteen staff cannot be held to be an offence against officer holding the Court. No materials have been brought on the record to show that Commanding Officer is the owner of the assets of the Canteen. Section 52 (a) read with Clause (b) as extracted above, makes it clear that theft or misappropriation of any property will be an offence but any offence with regard to property of a mess, band or institution cannot be said to be an offence against the Commanding Officer. Section 52 (a) read with Clause (b) as extracted above, makes it clear that theft or misappropriation of any property will be an offence but any offence with regard to property of a mess, band or institution cannot be said to be an offence against the Commanding Officer. Section 120 (2) refers to offence against the officer holding the Court. Officer has been defined in Section 3 (xviii). The definition of "officer" as given in aforesaid provision refers to persons commissioned, Gazetted or in pay as an officer in the regular Army. From the facts of the present case, there is no material to hold that the offence in question can be said to be an offence against the officer holding the Court. We find force in the submission of counsel for the appellants that provisions of Section 120 (2) were not attracted in the facts of the present case and summary court-martial proceedings could have been proceeded in the present case. In view of the aforesaid discussion, the first submission of the counsel for the appellants has substance. The second submission of the counsel for the appellants is that there is no violation of Rule 129 in the facts of the present case. Rule 129 of the Army Rules provides : "129. Friend of accused.-In any summary court-martial, an accused person may have a person to assist him during the trial, whether a legal advisor or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses but shall not examine or cross examine witnesses or address the Court." Rule 129 provides a measure of protection to an accused person. Under Rule 129 legal advisor or any other person can be chosen by accused person for assisting him. From the facts which have been brought on the record, in the present case, it is clear that it is claimed that in the court-martial proceedings which assembled on 29th July, 1997, the counsel appearing for respondent appeared in the court-martial proceeding. The proceedings were adjourned for 30th July, 1997, on which date counsel for the respondent could not appear and medical certificate was sent by the counsel for adjournment on that date. The Commanding Officer did not grant adjournment and proceeded and concluded the court-martial proceedings on the same day, i.e., 30th July, 1997. The proceedings were adjourned for 30th July, 1997, on which date counsel for the respondent could not appear and medical certificate was sent by the counsel for adjournment on that date. The Commanding Officer did not grant adjournment and proceeded and concluded the court-martial proceedings on the same day, i.e., 30th July, 1997. It has also been brought on the record that one Captain H. R. Chandel was directed by Commanding Officer to act as friend of the accused. The respondent has stated that he objected to appointment of Captain H. R. Chandel as his friend. It is relevant to note that said H. R. Chandel who was appointed as friend of the accused is the same officer who has filed a counter-affidavit in the writ petition of the writ petitioner sworn on 21st July, 1997. From the aforesaid, it is clear that on 30th July, 1997, court-martial proceedings were held and concluded and the respondent did not get any assistance as contemplated under Rule 129 of the Army Rules. The counsel for the respondent when could not appear on 30th July, 1997 due to his illness, it was appropriate that an opportunity ought to have been given to the respondent to engage another person as friend of accused. The Division Bench of this Court in Union of India and others v. Sepoy/Driver, Rameshwar Mehato, 1993 AWC 883 , has considered the provisions of Rule 129 of the Army Rules. The Division Bench laid down in para 3, which is being extracted below : "3. Having considered the record of the trial in the light of the provisions of Rule 129 we find no merit in the contention raised on behalf of the appellants. From a plain reading of Rule 129 it is ineluctably clear that an accused who is being tried in a court-martial is entitled to be assisted by a legal advisor or any other person, of his choice for the purposes mentioned therein. From a plain reading of Rule 129 it is ineluctably clear that an accused who is being tried in a court-martial is entitled to be assisted by a legal advisor or any other person, of his choice for the purposes mentioned therein. In paragraph 25 of the writ petition, the respondent has categorically stated that on 7.3.1984 (the date on which the trial commenced) he asked for the service of a legal practitioner to assist him during his trial by summary court-martial and was prepared to bear the expenses for the same, but even though it was his legal right under the provisions of Rule 129, the appellant No. 4 (Commanding Officer, 504 A.S.C. Battalion) did not allow his prayer for reasons best known to him. In their counter-affidavit the appellants (respondents in the writ petition), while dealing with the complaint made in paragraph 25 of the writ petition stated as under : "That the contents of paragraph 25 of the writ petition are incorrect and are denied. As per the Army Act and the Rules Captain A. R. Bhardwaj was detailed as friend of the accused." From the above pleadings of the parties on the question of compliance of Rule 129 we find that the appellants did not specifically deny the fact that the respondent had asked for a legal advisor. On the contrary they stated that they had appointed a person as friend of the accused. The right to be defended by a lawyer of one's choice is expressly provided for in Rule 129 and, therefore, it was incumbent upon the appellants to provide the respondent with a lawyer of his choice. In case the respondent had not exercised such right the appellants might have appointed a person to assist him as his friend, but as in the instant case the record clearly shows that the respondent had asked for the assistance of a legal advisor and such right was denied, it must be said that the respondent was prejudiced in his defence and the principles of natural justice were violated." 11. From the facts of the present case, it is clear that there was violation of Rule 129 of Army Rules in proceeding with the summary court-martial proceedings on 30th July, 1997. Learned single Judge has rightly held so. From the facts of the present case, it is clear that there was violation of Rule 129 of Army Rules in proceeding with the summary court-martial proceedings on 30th July, 1997. Learned single Judge has rightly held so. The fact that summary court-martial proceedings were concluded in great haste, within a day, also supports our view that proceedings were concluded without giving opportunity to respondent to avail the benefit of Rule 129. Thus, we are of the view that learned single Judge did not commit any error in recording a finding that there is violation of Rule 129 in the summary court-martial proceedings. 12. The third submission of counsel for the appellants is to the effect that charges were fully proved since respondent himself admitted his guilt and deposited the money. Learned single Judge while allowing the writ petition has not considered the merits of charges nor recorded any finding on merits of the case. The summary court-martial proceedings were quashed in view of the reasons given in the judgment. Learned single Judge in his judgment has also left it open to the appellants to proceed against respondent in accordance with law. In view of this, there is no necessity for considering this submission of the counsel for the appellants. Merit of charges having been not considered by learned single Judge, the same need not be considered in this appeal. The next submission of counsel for the appellants is that under Article 226 of the Constitution, this Court has limited scope of review. The counsel for the appellants has also relied on various judgments as referred above. In Bhuwneshwar Singh's case (supra), in paragraph 13, the Apex Court held as under : "13. Keeping in view the limited nature of judicial review in matters arising out of court-martial proceedings, it is not only desirable but necessary that the authorities under the Army Act, strictly follow the requirements of the Act and the Rules ................ ................................................................................................" 13. IT is true that the Apex Court in the aforesaid judgment and other decisions cited by counsel for the appellants has held that power of judicial review under Article 226 is for limited purpose and the said power of judicial review cannot be a power of appellate authority permitting the High Court to re-appreciate the evidence. ................................................................................................" 13. IT is true that the Apex Court in the aforesaid judgment and other decisions cited by counsel for the appellants has held that power of judicial review under Article 226 is for limited purpose and the said power of judicial review cannot be a power of appellate authority permitting the High Court to re-appreciate the evidence. In Union of India v. Himmat Singh Chahar's case (supra), in paragraph 5, the Apex Court held as under : "5. Since the entire procedure is provided in the Act itself and the Act also provides for a further consideration by the Chief of Naval Staff and then by the Union Government then ordinarily there should be a finality to the findings arrived at by the Competent Authority in the court-martial proceeding. It is of course true that notwithstanding the finality, attached to the orders of the Competent Authority in the court-martial proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of dinging out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceeding or that the authority exercising the jurisdiction had not been vested with the jurisdiction under the Act. The said power of judicial review cannot be a power of an Appellate Authority permitting the High Court to re-appreciate the evidence and in coming to a conclusion that the evidence is sufficient for the conclusion arrived at by the Competent Authorities in the court-martial proceedings." 14. The other decisions cited by counsel for the appellants lay down the same proposition. There cannot be any dispute with the proposition as laid down by the Apex Court in the aforesaid cases. The scope of judicial review is limited and has to be exercised in well defined parameters of judicial review. In the present case, learned single Judge has not interfered with the court-martial proceedings by way of re-appraising the evidence or setting aside the findings. The learned Single Judge has granted the relief due to violation of Rule 129 of Army Rules and other reasons mentioned in the judgment. In the present case, learned single Judge has not interfered with the court-martial proceedings by way of re-appraising the evidence or setting aside the findings. The learned Single Judge has granted the relief due to violation of Rule 129 of Army Rules and other reasons mentioned in the judgment. THE Division Bench of this Court in Union of India v. Sepoy/Driver Rameshwar Mehato's case (supra), which was also a case of violation of Rule 129 has held that respondent was prejudiced in his defence and principles of natural justice were violated. As laid down by Apex Court in S. N. Mukherjee v. Union of India, 1990 (4) SCC 594 , the principles of natural justice are to prevent miscarriage of justice and secure fair play in action. In paragraph 42 of the judgment, the Apex Court while considering the scope of judicial review under Article 226 with regard to court-martial proceedings held as under : "42. ...................................... .............................................................. This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts-martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record." Thus, we are satisfied that exercise of jurisdiction by learned single Judge under Article 226 of the Constitution was within the well defined parameters of judicial review. 15. The last submission of the counsel for the appellants was that this Court may clarify that the appellants are entitled to proceed against the respondent in accordance with law as per liberty granted by learned single Judge in the impugned judgment. The learned single Judge, while allowing the writ petition, has himself left it open to the appellants to proceed in accordance with law. The counsel for the respondent contended that now the appellants could not proceed since it will be second trial which is prohibited by Section 121 of the Army Act. Counsel for the respondent further contended that Section 127 of the Army Act which provided for successive trial has been omitted by Army Act, 1992, hence the appellants are not entitled to proceed again. 16. We have examined Section 121 and Section 127. Counsel for the respondent further contended that Section 127 of the Army Act which provided for successive trial has been omitted by Army Act, 1992, hence the appellants are not entitled to proceed again. 16. We have examined Section 121 and Section 127. Section 121 provides that where any person subject to this Act has been acquitted or convicted of an offence by a court-martial or by a criminal court, or has been dealt with under any of the Sections 80, 83, 84 and 85, he shall not be liable to be tried again for the same offence. In the present case, when the learned single Judge has set aside the summary court-martial dated 30th July, 1997, it cannot be said that conviction of the respondent is still standing. Section 121 contemplates those acquittal and conviction which have attained finality. In the present case, when Court quashes the conviction, Section 121 cannot be said to be attracted. Section 121 will not come into play when the conviction or acquittal has been quashed by the Court and the Court itself permits the authorities to again proceed in accordance with law. In view of the order passed by learned single Judge in the writ petition, Section 121 is not attracted. Section 127 provided for successive trial by a criminal court and court-martial. Section 121 covers different contingency. The counsel for the respondent has submitted that the said Section 127 has now been omitted by Army Act, 1992, hence successive trial cannot be made. The submission is without substance. Section 127 covered a contingency regarding successive trial by court-martial or criminal courts. In the present case, the question of trial by criminal court has not arisen nor Section 127 is attracted. Fur hearing to the applicants. It has been argued that the order is without jurisdiction. 4. In my opinion, the argument of the learned counsel for the applicant is correct. No doubt, the opposite party is the natural guardian of the minors being their father but even then, he should have claimed custody of the minors by moving an application under Section 25 of the Act which could have been disposed of after hearing the parties. No such application was moved. 5. Apart from this, the matter was finally decided on 2.8.1999. The learned District Judge on that date afterwards passed different order behind the back of the applicants. No such application was moved. 5. Apart from this, the matter was finally decided on 2.8.1999. The learned District Judge on that date afterwards passed different order behind the back of the applicants. The said order, therefore, cannot be retained. 6. Accordingly, the first appeal from order is allowed. The subsequent order of 2.8.1999 on application 26C is quashed. However, notwithstanding any observation made above, the opposite party may file application for appointment of guardian and/or for custody of the minors under Section 25 of the Act. If such an application is moved, it shall be disposed of in accordance with law expeditiously notwithstanding any observation made in the body of this judgment. The party shall bear their own costs.