JUDGMENT - MOHITE R.S., J.:-By this petition, the petitioner seeks to quash and set aside the order passed by a Naval Court Martial on 30-10-1993, which has been partly modified by the Chief of Naval Staff by his order dated 3-5-1994 in exercise of the powers conferred by section 163 of the Navy Act, 1957 and which in its turn has been confirmed by the Central Government by an order dated 25-7-1995 in exercise of powers under section 164 of the Navy Act 1957. 2. By the impugned order dated 30-10-1993, at the conclusion of the Naval Court Martial, the petitioner was found guilty in respect of Charge Nos. 1 4 for the offences punishable under section 406 of the Indian Penal Code read in conjunction with sections 77(2) and 60(b) of the Navy Act, 1957. On this basis the petitioner was sentenced to undergo rigorous imprisonment for 12 months as a Class II prisoner, was reduced in rank from Master Chief Petty Officer or Chief Petty Officer, was dismissed from the Naval Service, and deprived of first, second and third Good Conduct Badges and was to suffer the consequential penalties involved. The Chief of Naval Staff by his order dated 3-5-1994, while considering the matter in exercise of the powers under section 163 of the Navy Act, 1957 confirmed the conviction of the petitioner as per the order of the Court Martial. He however reduced the sentence of rigorous imprisonment to the period already undergone and maintained the other punishments intact. The Government of India, Ministry of Defence by an order dated 25th July, 1995 rejected the petition of the petitioner and accordingly confirmed the conviction sentence in accordance with the order dated 3-5-1994 passed by the Chief of the Naval Staff. 3. It is an undisputed position that between 13-3-1992 to 2-9-1992 the petitioner was working in the Indian Navy at a rank of Master Chief Petty Officer Class II. During this period he was working as a Canteen Manager of Ships Canteen of Indian Naval Ship Vikrant. During this period he is alleged to have committed five offences for which he was charged. During this period he was working as a Canteen Manager of Ships Canteen of Indian Naval Ship Vikrant. During this period he is alleged to have committed five offences for which he was charged. The charge-sheet dated 14-10-1993 listed five charges against the petitioner, which read as under : "The accused Mohammad Ali, Master Chief Petty Officer Second Class, 055144-E, of Indian Navy belonging to Indian Naval Ship Vikrant, being a person subject to Naval law is Charged for that he : 1. Did between 1 April, 1992 and 02 September 1992 in his capacity as canteen manager of ships canteen of Indian Naval Ship Vikrant, dishonestly commit criminal breach of trust of certain movable property to wit about 28436 (Twenty eight thousand four hundred and thirty six) in number bonded and Indian cigarette packets by selling the said cigarettes unauthorisedly and thereby committed an offence punishable under section 406 of the Indian Penal Code read in conjunction with section 77(2) of the Navy Act, 1957. 2. Did between 1 August, 1992 and 02 September, 1992 in his capacity as canteen manager of ships canteen of Indian Naval Ship Vikrant dishonestly misappropriated certain movable property to wit a sum of about Rupees 1900/- (Rupees one thousand nine hundred) from the sale proceeds of cigarettes of ships canteen account of Indian Naval Ship Vikrant and thereby committed an offence punishable under section 403 of the Indian Penal Code read in conjunction with section 77(2) of the Navy Act, 1957. 3. Did between 15 March, 1992 and 15 April, 1992 in his capacity as canteen manager of ships canteen of Indian Naval Ship Vikrant dishonestly misappropriate certain movable property to wit a sum of about Rupees 9000/- (Rupees nine thousand) from ships canteen account of Indian Naval Ship Vikrant and thereby committed an offence punishable under section 403 of the Indian Penal Code read in conjunction with section 77(2) of the Navy Act, 1957. 4. 4. Did between 14 May, 1992 to 02 September, 1992 knowingly Counsel Nimal Chatterjee, Electrical Mechanic (Power) First Class, Number 172300-T, the then canteen assistant of ships canteen of Indian Naval Ship Vikrant to falsify documents to be used for official purposes namely daily sale summary of cigarettes of ships canteen account of India Naval Ship Vikrant purporting to show the sale of about 173377 (One lakh seven three thousand three hundred seventy seven) in number of bonded Indian cigarette packets, whereas about 167920 (One lakh sixty seven thousand nine hundred twenty) in number cigarette packets were to be shown and thereby committed an offence punishable under section 60(b) of the Navy Act, 1957. 5. Was between 20 August, 1992 to 2 September, 1992 guilty of an Act to the prejudice of good order and naval discipline in that he threw over board one document namely daily bill summary book of ships canteen account of Indian Naval Ship Vikrant thereby committed an offence punishable under section 74 of the Navy Act, 1957." 4. At the Court Martial, the prosecution examined 12 witnesses. Out of these 12 witnesses one witness viz. N. Chatterjee P.W. No. 12 was a canteen assistant who was working alongwith the petitioner during the relevant period. During this period he was assigned duty of a Cigarette Incharge Assistant and it was his job to prepare bills according to the parade state. He used to prepare bills and the canteen manager used to put stamps thereon. He used to give cigarettes after seeking the bills. On perusal of the evidence of witness N. Chatterjee, it is clear that so far as the charges against the petitioner are concerned, this witness was an accomplice. He, in his evidence, has admitted that some cigarette cartons were given by him to one Jyoti and sometimes he himself used to give it to the others on the instruction from the petitioner. He has admitted that he used to collect the profit from Jyoti on instruction from the petitioner. He has further admitted that for such activities he used to receive money from time to time. Apart from this witness, the prosecution has examined another witness Mr. R.K. Ghosh who is a leading seaman and who had made certain changes in the bill book at the instance of the present petitioner. He has further admitted that for such activities he used to receive money from time to time. Apart from this witness, the prosecution has examined another witness Mr. R.K. Ghosh who is a leading seaman and who had made certain changes in the bill book at the instance of the present petitioner. The other witnesses examined include the lieutenant Commander Kashyap Kumar who was the Canteen Officer during the relevant period. 5. We have perused the entire record of the Court Martial. We are aware of the limitations in a petition under Article 226 of the Constitution of India, when dealing with Court Martial proceedings. The limitations have been referred to in the case of (Major Amarjeet Singh v. Union of India)1, 1997(I) L.J. 480. In this case the Division Bench of our High Court while dealing with these limitations has observed as under : "These limits are well defined. This Court generally would not act as a Court of Appeal over the findings recorded by the Court Martial. But the High Court under Article 226 has the power of judicial review over Court Martial and can grant appropriate relief if fundamental rights have been denied or if there has been a jurisdictional error. Thus the High Court will not re-appreciate evidence to come to its own conclusion, which may be different from the finding returned by an inferior Tribunal. The High Court has the power to inquire as to whether there is any legal evidence to sustain the charge. Further, it can interfere if the Tribunal has admitted inadmissible evidence or has failed to consider evidence that was relevant, which has influenced the impugned finding, or where the decision is so unreasonable that no reasonable authority would make such a decision." 6. Apart from the above, since admittedly, the Court Martial proceedings are in the nature of a Jury trial, it is well settled if the High Court finds that there is any mis-direction or material non-direction by the Judge Advocate, then, this Court could interfere in its writ jurisdiction. With the aforesaid principles in mind, we have scanned the record. Since the petitioner has been acquitted of the Charge Nos. 2, 3 and 5, the same need not detain us. 7. With the aforesaid principles in mind, we have scanned the record. Since the petitioner has been acquitted of the Charge Nos. 2, 3 and 5, the same need not detain us. 7. So far as the Charge No. 1 is concerned, we find that the same pertains to the commission of an act of criminal breach of trust in respect of 28436 bonded Indian cigarette packets which have been unauthorisedly sold. The charge states that the aforesaid act amounted to the commission of an offence punishable under section 406 of the Indian Penal Code read in conjunction with section 77(2) of the Navy Act, 1957. We notice two lacunas on record as regards this charge. Firstly, the total number of cigarette packets said to have been sold is based upon the calculation made in a document produced at Exh. P-5. We find from this document that the first column pertains to sale of cigarette packets as per the daily sale summary. The next column, however, pertains to the present strength of ships company on various dated when the cigarette sales were made. The third column pertains to the number of ships company who were on leave. On these parameters and on the basis of the fact that the sailors were authorised to draw 10 packets of cigarettes when they proceed on leave, the prosecution has concluded that the daily sales summary register indicated the sale of 173377 packets, that during these dates the total number of persons who were on ship board were 134391 and the total number of persons who were on leave were 1055. Since those persons who were on leave were entitled to draw 10 packets each, their total number has been multiplied by 10. On the basis of such a mathematical formula the figure of 28436 being the number of excess packets is shown to have been sold. We find that this chart Exh. P-5 is based upon some abstract mathematical calculations and has no relation to the real and actual facts pertaining to the actual sale of cigarettes in the ships canteen. The mathematical formula is based on several assumption which may have no foundation in reality. At Exh. P-4 there is another chart in which the calculation for the same period is based on the daily sales summary and the cash memos. However, this document is not made as the basis of the charge. The mathematical formula is based on several assumption which may have no foundation in reality. At Exh. P-4 there is another chart in which the calculation for the same period is based on the daily sales summary and the cash memos. However, this document is not made as the basis of the charge. As regards the actual sale of the cigarettes, the sole witness of the prosecution was an accomplice i.e. Mr. N. Chatterjee, who has admitted in his evidence that he was helping the petitioner and that he received certain monies for the work being done by him. We however find that, at the stage of summing up, the Judge Advocate has committed an error of misdirection as well as material non-direction. 8. Section 113 of the Navy Act, 1957 deals with summing up by the trial Judge Advocate, in the following terms : "When the case for the defence and the prosecutors reply, if any, are concluded, the trial Judge Advocate shall proceed to sum up in open Court the evidence for the prosecution and the defence and lay down the law by which the Court is to be guided." 9. In the course of summing up, it is thus inter alia the duty of the trial Judge Advocate to lay down the law by which the Court is to be guided. In the present case, while dealing with the question of accomplice evidence, the law on the point is summed up by the trial Judge Advocate in paragraphs 116, 117 and 118, which read as under : 116. The learned Defence Officer has talked about accomplice in great detail while summing up his case whilst quoting citation namely (Sarvan Singh v. State of Punjab)2, A.I.R. 1957 S.C. 638. I would like to tell this Honble Court the meaning of this term accomplice in concerning section. Section 133 of the Evidence Act defines accomplice as an accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The evidence of an accomplice, though it is uncorroborated may form the basis of conviction. 117. The learned Defence Officer also quoted A.I.R. 1959 page 1199 (Jnanendra Nath Ghosh v. State of West Bengal)3, regarding approves evidence under sections 297 and 337 of Criminal Procedure Code. 118. The evidence of an accomplice, though it is uncorroborated may form the basis of conviction. 117. The learned Defence Officer also quoted A.I.R. 1959 page 1199 (Jnanendra Nath Ghosh v. State of West Bengal)3, regarding approves evidence under sections 297 and 337 of Criminal Procedure Code. 118. He also quoted A.I.R. 1959 S.C. 199, and (Bhiva Doulu Patil v. State of Maharashtra)4, A.I.R. 1963 S.C. 599, on the accomplice which I have already explained. I leave it to this Honble Court to decide how much reliance to be given each and every witness who has deposed before this Court. 10. Apart from this, the trial Judge Advocate while dealing with the presumptions under the Indian Evidence Act, has reproduced in the summing up, section 114 of the Evidence Act including the Illustrations. Illustration (b) thereof states that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. 11. In our view, the trial Judge Advocate did not give an appropriate direction to the Jury in the precise manner in which the evidence of the accomplice was required to be treated in law. The manner in which the evidence of the accomplice is required to be treated has been a subject matter of several Judges. In the case of (Narayan Chetanram Chaudhary another v. State of Maharashtra)5, 2001(5) Bom.C.R. (S.C.)116, the Honble Apex Court has referred to several earlier judgments on the point and concluded as under : "For corroborative evidence the Court must look at the broad spectrum of the approvers version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration may depend upon the facts of different cases. Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Corroborative evidence must be independent and not vague or unreliable. Relying upon its earlier judgment in (Suresh Chandra Bahri v. State of Bihar)6, 1995 (Supp. Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Corroborative evidence must be independent and not vague or unreliable. Relying upon its earlier judgment in (Suresh Chandra Bahri v. State of Bihar)6, 1995 (Supp. 1) S.C.C. 80 this Court in (Niranjan Singh v. State of Punjab)7, J.T. 1996(5) S.C. 582, held that once the evidence of the approver is held to be trustworthy, it must be shown that the story given by approver so far as an accused is concerned, must implicate him in such a manner as to give rise to a conclusion or guilt beyond reasonable doubt. Insistence upon corroboration is based on the rule of caution and not merely a rule of Law. 12. In the aforesaid judgment, reliance was placed on the judgment in the case of (R. v. Baskerville)8, 1961(2) K.B. 658, in which the accused was convicted for committing gross acts of indecency with two boys who were treated as accomplices since they were freely consenting parties. Dealing with their evidence Lord Reading, the Lord Chief Justice of England, observed that though there was no doubt that the uncorroborated evidence of an accomplice was admissible in law it was for a long time a rule of practice at common law for the Judge to warn the jury of the danger of convicting a person on the uncorroborated testimony of an accomplice. Therefore, though the Judge was entitled to point out to the jury that it was within their legal province to convict upon the unconfirmed evidence of an accomplice, the rule of practice had become virtually equivalent to a rule of law and therefore in the absence of a proper warning by the Judge the conviction could not be permitted to stand. 13. The judgment in the case of R. v. Baskerville was cited with approval by our Apex Court in the case of (Dagdu v. State of Maharashtra)9, 1977(3) S.C.C. 68 , in which the Apex Court held that there was no antithesis between section 133 and Illustration (b) to section 114 of the Evidence Act, because the illustration only says that the Court may presume a certain state of affairs. It does not seek to raise a conclusive and irrefutable presumption. It does not seek to raise a conclusive and irrefutable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, insofar as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law, what was felt to be a matter of prudence has been elevated by judicial experience into a requitement or rule of law. All the same, it is necessary to understanded that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it. 14. In our view since such an essential warning was not given by the trial Judge Advocate to the Court Martial Jury, in the summing up a fatal discrepancy in the nature of a material non-direction amounting to a misdirection has crept into the proceedings, which would necessitate setting aside of the conviction under Charge No. 1. 15. As regards the Charge No. 4 the same pertains to falsification of the daily sales summary register, which indicated the sale of about 173377 bonded Indian cigarette packets. As regards this charge, the learned Counsel appearing for the respondents drew our attention to the part of the evidence of witness-R.K. Ghosh who has stated about his having effected mutation in the bill books on the direction given by the present petitioner. As regards this charge, the learned Counsel appearing for the respondents drew our attention to the part of the evidence of witness-R.K. Ghosh who has stated about his having effected mutation in the bill books on the direction given by the present petitioner. Unfortunately, there is no charge relating to the falsification of the said bill books. No other evidence has been shown to us which touches upon the question of falsification of the daily sales summary. In fact its authenticity is made the basis of the formulation of Charge No. 1. In this view of the matter, the conviction under the Charge No. 4 will have to be set aside for want of any evidence. 16. It is an admitted position that the petitioner has undergone the entire sentence of imprisonment was in jail for about seven months. Infact, the Chief of Naval Staff has reduced the imprisonment to the term already undergone. We find that the conviction on the other charges is not sustainable. 17. In this view of the matter, Rule in the petition is made absolute in terms of prayer Clause (a). There shall be no order as to costs. 18. The petitioner shall be reinstated within a period of 90 days from today. We may mention here that the learned Advocate for the petitioner at the very commencement of the arguments had made a concession that he will not insist upon backwages in the event he succeeds in the petition. In view of the said concession as also in the facts of this case, we direct that the reinstatement will be without backwages. However we make it clear that the re-instatement will be with continuity of service the petitioner will be entitled to post retirement benefits. 19. Issuance of certified copy is expedited. Personal Secretary to issue an authenticated copy of this order to the parties. Order accordingly. -----