JUDGMENT Per Rajesh 'Tandon, J. Present writ petition has been filed for the grant of u writ of certiorari quashing the order dated 20.11.2000. annexure-1 to the writ petition. 2. Briefly stated, the petitioner was posted as a Subedar in the Indian Army and was working under Garrison Engineer, Dehradun B/R Gde 1 from April 1995 to 15th September 1997. He was posted to Garrison Engineer (P) Kirkee vide order dated 30th April 1997. The movement order was handed over to the petitioner on 11.9.1997. The petitioner obtained all the necessary clearances. He reported at Kirkee on 27th October 1997 after availing annual leave of 30 days and joining and journey period. During the first week of December 1997 the petitioner came to know that he has been declared absent without leave by GE Dehradun. The correct facts about the petitioner were intimated by GE (P) Kirkee to HQ Sub Area, Dehradun. The petitioner was given a movemnet order by GE (P) Kirkee dated 16.12.1997 with instructions to further report to CWE No.1 (Commander Works Engineer) Dehradun as requested by CWE No.1 Dehradun. The petitioner reported to the offence of CWE Dehradun on 27th December 1997 and on his arrival he came to know that Capl. N.S. Mann the then officer Commanding JJ-oops of G E Dehradun had framed charges against him. The petitioner was subsequently attached to 501 Field Survey Engineer Group HQ Pune Sub Area. A Court of inquiry was finalized during May 1998 and the same was handed over to the petitioner on 1.8.1998. Thereafter a summary of Evidence was recorded by Major R.B. Srivastava which was sent to DJAG General Command for pre trial advice but the same was held to be void. A second Court of inquiry was held and thereafter another summary of Evidence was recorded. The Convening order of the General Court Martial was issued to the General Officer Commanding U.P. Area on 18.8.2000. Five charges were framed against him. 3. The first charge is regarding using. insubordinate language to his superior officer. Second charge is regarding an act prejudicial to good order and military discipline. The third charge was regarding absence on duty without leave on 16th September 1997 to 27th October 197. Fourth charge was regarding conduct prejudicial to good order and military discipline and the fifth charge was absenting him without1eave from 20th December 1997 to 26th December, 1997. 4. Second charge is regarding an act prejudicial to good order and military discipline. The third charge was regarding absence on duty without leave on 16th September 1997 to 27th October 197. Fourth charge was regarding conduct prejudicial to good order and military discipline and the fifth charge was absenting him without1eave from 20th December 1997 to 26th December, 1997. 4. The G.C.M. held that the petitioner used insubordinate language against his superior officer and thus held him guilty of the first charge. 5. The second charge framed against the petitioner was that be gave a false statement that Cap. N.S. Mann had snatched his handbag containing Rs. 32,696/-. The G.C.M. held that the act of the petitioner was the prejudicial to the good order as well as military discipline and thus held the second charge proved against the petitioner. 6. The third charge was also held proved against the petitioner and on the ground that the petitioner was required to be on duty at GE, Dehradun from 16th September 1997 onward but he absented himself from the said place of duty without any valid leave. 7. The petitioner was also held guilty of the fourth charge as it was held that he corresponded directly with the Commander Works Engineer No.1 Dehradun, with a copy endorsed to the commander, Dehradun sub Area and other authorities. He was held guilty under Paragraph 557 of the Regulation for the Army 1987, as his conduct was prejudicial both to good order and military discipline. 8. The petitioner was also held guilty of the fifth charge and it was held that he absented himself without leave from the unit fromi'20th December 1997 to 26th December 1997. 9. Thus the petitioner was held guilty of all the five charges. He was awarded punishment of dismissal from the service and was further directed to suffer two years' Rigorous Imprisonment. 10. The petitioner filed a pre-confirmation petition under section 164(1) of the Army Act, 1950 to the General Officer Commanding, Centre Command, Lucknow inter alia with the assertions that he has outstanding record of service and has always been a disciplined officer. The proceedings of GCM have been conducted in a highly prejudiced and biased manner. The evidence on record has not been considered in its entirety by the GCM and it has proceeded on assumption that the petitioner is guilty. The proceedings of GCM have been conducted in a highly prejudiced and biased manner. The evidence on record has not been considered in its entirety by the GCM and it has proceeded on assumption that the petitioner is guilty. The petitioner denied that he spell out any insubordinate language. The finding of the court Martial on this charge are biased and pre-conceived. Even the words narrated by the prosecution witnesses in their statements neither constitute any offence nor insubordinate language. 11. Regarding the findings of GCM on the second charge the petitioner has asserted that the findings are based only on the denial statements of P.W8 and P.W 10 that they did not visit the house of the petitioner on 24th September 1997 and discredited all the witnesses produced by the petitioner. 12. Regarding the third charge the petitioner has stated that he was granted 45 days annual leave w.e.f. 16th September 1997, which was recorded in leave sanction register maintained by E1 (Army) Section of GE Dehradun. The said leave was also reflected in the movement order dated 11 September 1997. The prosecution has not produced the said leave register due to malafide intentior. The said part of the annual leave was not cancelled till 27th October 1997 when the petitioner physically reported to GE (P) Kirkee. 13. The petitioner has also challenged the findings of the GCM on fourth charge. The assertion of the petitioner is that he had handed over copies of complaint to the office of the GE Dehradun which were meant for CWE No. 1 Dehradun. DW1 had made statement before the GCM that he had received the complaint and gave receipt of the same to the petitioner. P.W21 also admitted having received the complaint. 14. Regarding the findings on charge No. V, the petitioner has submitted that he had proceeded to Recruiting Dte, New Delhi on verbal instructions of the Adm. Officer of Selection Centre East Allahabad and telephonic approval of OC Unit Maj. Arun Deshpande (PW22). The action of the petitioner during the period was on the direction of his superiors and it cannot be said that he absented himself without leave from 20th December 199 to 26th December 1997. 15. The petitioner was not given sufficient time to select and engage a defence counsel as well as the defending officer of his choice but the respondent no. 15. The petitioner was not given sufficient time to select and engage a defence counsel as well as the defending officer of his choice but the respondent no. 1 vide order dated 28.9.2001 confirmed the sentence awarded by the G.C.M. The petitioner preferred appeal but the same has been dismissed by the Chief of the Army Staff. 16. Feeling aggrieved the present writ petition has been filed by the petitioner. 17. The grievances of the petitioner are that before the General Court Martial (GCM) he was not afforded opportunity to defend himself in as much as officer of his choice was not made available under Rule 95 of the Army Rules. The documents required in his defence were also not made available to him. No findings were recorded as provided under Rule 62 of the Army Rules and the petitioner was denied documents for his defence. 18. The respondents filed counter affidavit and denied the allegations made in the writ petition. It has been asserted that the petitioner had committed culpable act amounting to the offences under the Army Act. He was tried according to the law and procedure and there was no illegality or irregularity committed by the authorities concerned in the General Court Martial. Proper opportunities were given to the petitioner to defend himself and the findings arrived at by the autorities of GCM are based on the evidence on record. 19. The learned counsel for the petitioner vehemently argued that the copies of the material documents were not made available to the petitioner during Court Martial proceedings to prepare his defence. The learned counsel for the petitioner referred letters dated 18.8.1999, 22.8.2000, 26.8.2000 and 8.9.2000 by which requests have been made for supply of the documents but copies of the material documents were not supplied to the petitioner. The petitioner required the following documents vide letter dated 22.8.2000. 20. (i) copy of convening order issued by GOC UP Area clearly indicating the names of presiding officer and members of the GCM, names of the Judge Advocate; prosecutor and defending officer. (ii) List of prosecution witnesses. (iii) Office record pertaining to the case held by GE Dehradun and paper as per list Appx 'A'.. 21. The petitioner filed an application on 11.9.2000 addressed to the Deputy Judge Advocate under Rule 33(6) of the Army Rules. (ii) List of prosecution witnesses. (iii) Office record pertaining to the case held by GE Dehradun and paper as per list Appx 'A'.. 21. The petitioner filed an application on 11.9.2000 addressed to the Deputy Judge Advocate under Rule 33(6) of the Army Rules. The petitioner has submitted that on 29.12.2000 he received a order dated 29.12.2000 stating that the application are returned to him as the rule under which the applications have been moved do not apply. 22. Rule 33(6) of the Army Rules reads as under: 33. Right of accused to prepare defence: (6) The accused person shall have the right to address an application to the Deputy Judge Advocate General of the Command within which he for the time being is, if he is kept under arrest longer than forty eight days without being brought to trial or is not given full liberty for preparing his defence. 23. Thus it is necessary for the prosecution to• supply copies of the material documents to the accused to prepare his defence. In case of non-compliance of this principle of natural justice, benefit goes to the accused. 24. The learned counsel for the petitioner further argued that the petitioner produced a list of 22 witnesses in his defence. Out of those only two witnesses namely Lieutenant Colonel M.C. Roa and Hav/Clk Govind Singh were examined. Rest of the witnesses were not called thereby severely prejudicing the case of the petitioner. The Court martial has stated that in its opinion only two defence witnesses are relevant and rest of the defence witnesses are not relevant. Five defence witnesses who were relevant and material witnesses were disallowed by the General Court Martial thereby denying the opportunity to the petitioner to defend himself. The petitioner along with his application dated 25.8.2000 submitted a list of witnesses. The petitioner has further submitted that summons of on witness Lt. Col. N. Prasad, whose name was given by the petitioner on 25th August 2000, were issued only on 14.11.2000 and the Court martial was concluded within one week of the summons being sent and the Court Martial did not wait for the appearance of the said witness. Thus the petitioner was deprived of the opportunity to defend himself by production of defence witnesses. 25. Thus the petitioner was deprived of the opportunity to defend himself by production of defence witnesses. 25. It has been further argued on behalf of the petitioner that the General Court Martial refused to give any reasonable time to the petitioner to engage defence counsel. The petitioner requested the Presiding Officer of the General Court Martial for adjournment to engage a defence counsel vide. application dated 25.8.2000. The plea of the petitioner was that no defending officer was assigned to him. On 24.R.2000 when the General Court Martial proceedings were started he came to know that the department had hired the / services of Ltd. Col. SC Nijhawan (Retd.) as prosecuting counsel, therefore, he prayed 15 days time to engage defence counsel but his ,plea was not accpeted an the General Court Martial has observed that there-is no immediate requirement of engaging a counsel by the defence despite the fact that the Army Act requires that the accused is entitled to engage a counsel of his choice. . 26. In the case of Colonel Lieutenant Prithipal Bedi v. Captain Dharam Pal Kukreti etc. AIR 1982 SC 1413 the apex Court observed as under: "Reluctance of the Apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act. are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra 1). Delhi Administration AIR 1978 SC 1675, that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens. not entitled to the benefits of the liberal spirit or the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty-oriented constitution. not entitled to the benefits of the liberal spirit or the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty-oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the criminal court and the court martial is apt to generate dissatisfaction arising out of this differential treatment. 27. The learned counsel for the petitioner also alleged bias on the part of the respondents. He alleged that the report against the petitioner was made when he was transferred. from Dehradun and the entire case was fabricated against him in order to harass him. Even at the time of GCM no appropriate opportunity was given to him to defend himself. The defence witnesses were summoned late by the GCM so that they could not give evidence in defence of the petitioner. He placed reliance in the case of Ranjit Thakur vs. Union of India and others (1987) 4 SCC 611, where the Apex Court has held that procedural safeguards contemplated in the Army Act, 1950 must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court-martial. The Apex Court has observed as under: 17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased ?"; but to look at the mind of the party before him. 18. Lord Esher in Allinson v. General Counsel of Medical Education and Registration (1894) 1 QB 750, 758-59 said: "The question is not, whether in fact he was or was not biased. The court cannot inquire into that . . . . . 18. Lord Esher in Allinson v. General Counsel of Medical Education and Registration (1894) 1 QB 750, 758-59 said: "The question is not, whether in fact he was or was not biased. The court cannot inquire into that . . . . . In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased." 19. In Metropolitan Propel1ies Co. (F.G.C.) Ltd. v. Lannon 6 Lord Denning M.R. observed : "...in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could 'be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit." 20. Frankfurter, J. in Public Utilities Commission of the District of Columbia v. Pollak 343 US 451, 466-67 said: "The judicial process demands that a Judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertainign them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. Not fact is that on the whole Judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there to ground for believing that such unconscious feelins may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, Judges rescue themselves. They do not sit in judgment." 28. As against this the learned counsel for the respondents has submitted that it is not necessary to give copy of Court of Inquiry to the accused. The learned counsel relied upon the case Major General Inder lit Kumar vs. Union of India & Others (1997) 9 SCC 1. In that case the apex Court has held that supply of copy of the report of court of inquiry is not necessary because proceedings of the Court of Inquiry are in the nature of a preliminary enquiry. But in the instant case the petitioner prayed for the copies of the documents used in evidence against him to pepare his defence and not the copy of the inquiry report. Hence, the facts of the present case are not similar to the case of Major General Inder Jit Kumar. 29. So far as the charges against the petitioner are concerned they are also not proved against him beyond all reasonable doubts. The first chage relates to the offence under section 40 © of the Army Act. The allegation against the petitioner is that he had spoken filthy language against Sub Major Prakash Pattar. In order to prove this charge the prosecution examined four' witnesses i.e. PW10 Sub Major Prakash Pattar, PW11 Sub. G.L. Diwedi, and PW14 D.V. Agarwal. We have perused the statements of these witnesses recorded in the Court Martial proceedings. The actual words narrated by each of the witnesses are entirely different. P.W 10 has stated that the following words were spoken by the petitioner to him: 'BOLO CAPTAIN KO LIKH DE JAHAN LIKHNA HAI' .................. TUMHARE CAPTAIN KO DEKH LUNGA USKA CAPTANI JHAR DUNGA' P.W.11 Sub G.L. Dwivedi has stated the following words in his statement: 'CAPTAIN KO BOL DO JO KUCH KARNA HAI KAR LE. MAIN USKI CAPTAINI DEKH LUNGA AUR TUMHARI SUB MAJARI BHI' ' ... TUMHARE CAPTAIN KO DEKH LUNGA USKA CAPTANI JHAR DUNGA' P.W.11 Sub G.L. Dwivedi has stated the following words in his statement: 'CAPTAIN KO BOL DO JO KUCH KARNA HAI KAR LE. MAIN USKI CAPTAINI DEKH LUNGA AUR TUMHARI SUB MAJARI BHI' ' ... P.W.14 Sri Dharm Veer Agrawal has narrated the following words in his statement allegedly spoken by the petitioner to P.W10 Sub Prakash Pattar . 'MAIN TERE KO BHI DEKH LUNGA TERE CAPTAIN KO BHI DEKH LUNGA TUJHE JO KARNA HAI KAR LE' 30. Thus the prosecution witnesses have made entirely differently version regarding the actual wording of the petitioner allegedly spoken to the complainant Sub. Prakash Pattar. 31. From the aforesaid evidence even if it is assumed that the petitioner was annoyed from the Captain but why he had spoken such words to Sub. Major Prakash, the reason has not been stated by anyone of the aforesaid witnesses. The petitioner has also taken plea of alibi and to prove that he examined P.W.8 Ved Prakash who deposed that at the relevant time the petitioner was with him and had gone to see off him to Bus Stand by scooter. The C.G.M. did not place reliance on the statement of this witness. However, no reasons have been given for not believing this witness. Further the petitioner examined PW7 Subedar M.S. Rawat who stated that he used to sit in the same room but he never noticed any quarrel or verbal duel between the petitioner and Sub Major Prakash Pattar. Thus the findings of the Court' Martial on this charge does not appear reasonable and based on fair appraisal• of the evidence. 32. The second charge against the petitioner is that he falsely deposed before the Court of Inquiry that Capt. N.S. Mann had snatched his handbag containing Rs. 32,696/-. The alleged deposition was made by the petitioner before Col. P.S. Shekhawat. The petitioner also examined his neighbour Smt. Surender Kaur before the Court of Inquiry but her statement was not annexed to the proceedings. However, the DJAG Central Command, Lucknow set aside the Court of Inquiry and the alleged statement of the petitioner cannot be used against him in the Court Martial proceedings after framing charge against him. However, in support of his contention petitioner examined D.W.6 Hav/Crk Govind Prasad, D.W5 Sri B.K. Jain and D.W7 Sri Rajendra Singh who supported the case of the petitioner. However, in support of his contention petitioner examined D.W.6 Hav/Crk Govind Prasad, D.W5 Sri B.K. Jain and D.W7 Sri Rajendra Singh who supported the case of the petitioner. D.W5 Sri B.K. Jain is the Manager of Punjab Nationai Bank and stated before the G.C.M. that the petitioner had withdrawn an amount of Rs. 32, 696/- after closing his account in the Bank. D.W7 Rajendra Singh stated that he had witnessesed two gentlemen snatching the bag from the hand of the petitioner. D.W6 Govind Prasad submitted that he had made copies of the statement of Smt. Surinder Kaur who had deposed in the Court of inquiry and was eye witness to the incident of snatching of the bag containing Rs. 32,696/- from the hand of the petitioner by Capt. N.S. Mann. However, the Court Martial without assigning any reasons disbelieve the statements of the above cited witnesses and placed reliance on bare denial of Capt. N.S. Mann. Thus the finding arrived at by the Court Martial with regard to this Charge clearly appear against the evidence on record and arbitrary and which should not have been made a basis for punishment to the petitioner. 33. The third charge against the petitioner was regarding his absence from duty without leave from 16th September 1997 to 27th October 1997. The petitioner was posted at Garrison Engineer (P) Dehradun. Vide order dated 11.9.1997 he was transferred to G.E. (P) Kirkee. He obtained clearance from all the sections and sub Divisions of G.E. Dehradun. As per his entitlement the petitioner availed annual leave for 30 days, which was graoted by GE (P) Dehradun. The leave period was extended by 15 days. The petitioner reported at Kirkee on 27th October 1997. The prosecution has not denied the fact that the leave: was duly sanctioned to the petitioner. However, the allegation of the prosecution is that the leave granted to the petitioner was cancelled. The petitioner was served an order keeping his movement in abeyance and the said order was allegedly served on the petitioner on 15th September 1997. A copy of the letter dated 15th September 1997 was produced with the petitioner's initials on it as a mark of receipt. The burden to prove that the movement order of the petitioner was kept in abeyance was on the prosecution but the prosecution has utterly failed to do so. A copy of the letter dated 15th September 1997 was produced with the petitioner's initials on it as a mark of receipt. The burden to prove that the movement order of the petitioner was kept in abeyance was on the prosecution but the prosecution has utterly failed to do so. As against this the petitioner examined DW2 who is a Handwriting Expert. He stated in his examination before the Court Martial that after comparison of the disputed signatures marked D-1 with the proved signatures P-1, P-2 and P-3 he found that initial D-1 was written with imitation forgery by different writer than the writer of other initials. He proved his report dated 26th October 2000. The prosecution has not examined any witness who served the alleged order to the petitioner and before whom the petitioner made the disputed signature on a copy of the order. Thus the prosecution has utterly failed to prove that the movement order of the petitioner was kept in abeyance and that order was actually served to the petitioner on 15.9.1997. 34. The petitioner has proved that after availing leave he reported to GE(P) Kirkee who had taken him on strength and during the period of his alleged absence he was on active duty in GE (P) Kirkee. Thus this charge also could not be proved against the petitioner. 35. The fourth charge against the petitioner was that he improperly corresponded directly with the Commander Works Engineer No.1, Dehradun. The petitioner had submitted a complaint against Capt. N.S. Mann to the office of GE (P) Dehradun of 16.9.1997. The complaint was preferred by the petitioner under section 26(2) of the Army Act and in compliance of said provisions it was addressed to the next superior officer of Capt. N.S. Mann. In his evidence D.W 1 Prem Prakash has stated that the copies of the complaint Ex. 'VV' were in fact handed over to him and the petitioner obtained his signature as a mark of reciept. He proved his signatures on the receipt. P.W 21 also admitted that he received the copy of Ex. 'VV' in the office of GE Dehradun on 16th September 1997 The petitioner had rightly sent the complaint to the Office of GE (P) Dehradun. He proved his signatures on the receipt. P.W 21 also admitted that he received the copy of Ex. 'VV' in the office of GE Dehradun on 16th September 1997 The petitioner had rightly sent the complaint to the Office of GE (P) Dehradun. However, he stated that when he inquired from the Office of Commander Works Engineer, he was told that complaint had not reached there and he submitted an advance copy of the complaint in that office. Thus the petitioner has already submitted complaint in the Office of GE (PJ Dehradun on 16.9.1997 and later on he produced advance copy of it in the Office of CWE, Dehradun. Thus the petitioner cannot be held guilty of improper correspondence. The stand taken by the petitioner is proved by the evidence adduced during the Court Martial and the charge levelled against the petitioner in this regard was also liable to be held as not proved. 36. The fifth charge against the petitioner is that he remained absent from 19th December 1997 to 27th December 1997. In this connection the petitioner has explained that he was given movement order by GE (P) Kirkee. At Allahabad the petitioner was informed that he couldn't be allowed to appear due to some communication from the Director Recruitment, AHQ and he was asked to sort out the matter from AHQ, New Delhi. On 22.12.1997 he handed over his application by hand to Lt. Col M.C. Rao. Col. Rao informed him that he had sent a signal to Kirkec and Dehradun and that he should wait for 2-3 days. On 26.12.1997 Lt. Col.Rao informed the petitioner that he had received response from Kirkee but was awaiting " response from Dehradun and the petitioner should get the clearances from Dehradvn so that he may be able to participate in the last selection to be held in the first week of January 1998. The petitioner reported at Dehradun on 26.12.1997 at 2.30 PM but as there was none present in the office, he again reported there in morning of 27.12.1997. In support of his assertion the " petitioner examined D.W.4 Ltd. Col. M.C. Rao, who stated that he had told the petitioner to wait for a few days. The petitioner reported at Dehradun on 26.12.1997 at 2.30 PM but as there was none present in the office, he again reported there in morning of 27.12.1997. In support of his assertion the " petitioner examined D.W.4 Ltd. Col. M.C. Rao, who stated that he had told the petitioner to wait for a few days. In his statement before the Court Martial this witness has stated that the accused requested me that he should be detained for the SSB interview because the time frame for such interview was limited, the accused also requested that my office should get official confirmation from the unit of the accused. I therefore, sent signals to his earlier unit i.e. GE Dehradun and his then unit i.e. GE (P) Kirkee. Thus from the statement of Lt. Col. M.C. Rao it is clear that the petitioner stayed at Delhi as per his orders and returned to Dehradun on 26.12.1997, therefore, no charge of absence without leave was made out against the petitioner. 37. The learned counsel for the respondents also questioned the jurisdiction of this Court to review the Court Martial proceedings under Article 226 of the Constitution of India. The Apex Court in the case Union of India and others v. Major A. Hussain (1998) 1 SCC 537, observed that the Court martial proceedings are subject to judicial review under Article 226but Court martial is not subject to superintendence under Article 227 of the Constitution of India. Certainly the High Court in a writ petition against the Court martial proceedings cannot reassess the evidence as an appellate court but it can safeguard the rights of the accused under the Constitution and to review that whether principles of natural justice have been followed or not. 38. As the entire proceedings of the General Court Martial against the petitioner was in utter violation of the principles of natural justice, in as much as the defence witnesses have not been produced and no opportunity was given to the petitioner to engage a defence counsel. Further even on the strength of the evidence adduced by the prosecution the charges against the petitioner were not proved beyond reasonable doubt, therefore, the judgment and order of sentence awarded against the petitioner cannot be sustained. 39. In the results, the writ petition is allowed and the impugned proceedings of General Court Martial dated 20.11.2000, and the consequent order and sentence are quashed. 39. In the results, the writ petition is allowed and the impugned proceedings of General Court Martial dated 20.11.2000, and the consequent order and sentence are quashed. The petitioner is entitled to and shall be reinstated with all monetary and service benefits. 40. There will, however be no order as to costs.