JUDGMENT : V.K. Shukla, J. Petitioner, in the present writ petition, is assailing the validity of the proceedings undertaken by way of Summary Court Martial held at No. 1 Military Training Battalion, A.M.C. Centre and School, Lucknow and the appellate order passed thereafter rejecting statutory appeal as well as supplementary appeal preferred on behalf of the Petitioner and further the consequential orders directing discharge of the Petitioner from Army with effect from 1.1.2003 consequent upon award of punishment of “reduced to ranks” by Summary Court Martial. 2. Brief background of the case, as disclosed in the writ petition, is that Petitioner was enrolled in the Army Medical Corp in the category of Ambulance Assistant as Sepoy. His Army Number has been 13954391-A. Subsequently, he was promoted to the rank of Naik/Ambulance Assistant. Service conditions of the Petitioner are governed by Army Act, 1950, Army Rules, 1954 and the Regulations framed thereunder. Petitioner submits that his carrier has been exemplary and outstanding. Petitioner had been posted as Drill instructor at No. 1 Military Training Battalion, A.M.C. Centre and School, Lucknow, and had been performing and discharging duties of training the recruits to the best of his abilities. Petitioner has submitted that he was strict disciplinarian and this conduct of his became bone of contention and had been envied by others. Petitioner submits that he had gone to Pune to undertake temporary assignment at the passing out prade at Armed Forces Medical College, Pune, and returned on 4.5.2002. Petitioner has submitted that barely after three days of his return two new recruits, namely, No. 15414758 W Recruit/G.D. Bharat Kamble and No. 15414760 Recruit/G.D. Jadho Jaibharat Sahib Rao of the Battalion of the Centre, who were in their second week of military training, were found missing from their duties at about 6.30 p.m. and the Petitioner was put to high alert. Petitioner has submitted that both the recruits escaped from duties and ran away to witness movie without permission. It has been asserted that on return from movie, both the recruits were given minor punishment, and they did not report of any indecent behaviour on the part of Petitioner or about any beating or injury to them to any superior officer/authority on 8.5.2002. On 9.5.2002, both the aforementioned recruits reported sick and made wild allegations against the conduct of the Petitioner. On 9.5.2002, both the aforementioned recruits reported sick and made wild allegations against the conduct of the Petitioner. As the allegations levelled qua the Petitioner were relating to his character, Court of Enquiry was ordered in terms of Rule 180 of the Army Rules 1954. Petitioner has submitted that Court of enquiry assembled on 9.5.2002 and completed the enquiry on 13.5.2002. It has also been asserted that Court of enquiry also made queries, which were not concerned with the character of the Petitioner, as such to this extent queries, which were sought to be made, were without jurisdiction and had no legal implications. It has been submitted by the Petitioner that Court of Enquiry as contemplated under Rule 180 of the Army Rules, 1954 was ordered by Commandant of the Centre, and tentative charge-sheet was prepared on 6.6.2002 by the Commanding Officer. Based on tentative charge-sheet dated 6.6.2002,charges were required to be heard as required under Rule 22 (1) of the Army Rules, 1954. However, proceedings under Rule 22 (1) were conducted by the Commanding Officer on 6.6.2002 itself, and no specific order for dispensing with calling and hearing of witnesses in terms of Rule 22 (1) of the Army Rules, 1954 had been passed. Proceedings are alleged to have been completed on the same day, and Major Mohan Das was asked to record summary of evidences. It has been asserted that Rule 22 (1) has been violated with impunity, as no witness was produced and examined at the alleged proceedings under Rule 22 (1) of the Army Rules, 1954, and tentative charge-sheet dated 6.6.2002 ought to have been dismissed. Summary of evidence is purported to have been recorded on 10.6.2002. Thereafter, Petitioner had been supplied with the copy of the charge-sheet dated 27.6.2002, and the summary evidence and Petitioner was informed that he would be brought for trial by Summary Court Martial on 2.7.2002. Petitioner requested that he be allowed to choose practicing lawyer as his next friend, and gave address of the concerned advocate. On the said application being moved, letter was sent informing and intimating that since the next friend chosen by Petitioner was an ex-service man, the office was unable to contact/summon him. However, Petitioner was at liberty to bring his friend on his own. On the said application being moved, letter was sent informing and intimating that since the next friend chosen by Petitioner was an ex-service man, the office was unable to contact/summon him. However, Petitioner was at liberty to bring his friend on his own. On 6.7.2002, directives were issued dropping second charge u/s 46(a) of the Army Act, 1950 and third charge was split up into two charges, and fresh charge-sheet dated 6.7.2002 was prepared. Petitioner was tried by summary court martial on 9.7.2002 and on subsequent dates. Trial concluded at 11.30 hours on 17.7.2002. The sentence was promulgated on 17.7.2002. Thereafter, statutory appeal had been preferred by the Petitioner, and as no action was being taken, and Petitioner was in military custody, at this juncture Petitioner preferred writ petition No. 4560 (S/S) of 2002 before this Court challenging the summary court martial proceedings. Said writ petition was disposed of on 23.8.2002 with direction to consider and decide the statutory appeal of the Petitioner within two months. Thereafter appeal had been rejected, and supplementary appeal filed thereafter has also been rejected. 3. To this writ petition counter-affidavit has been filed, and therein, it has been contended that allegations leveled against Petitioner were serious in nature, and Summary Court Martial proceeding does not suffer from any infirmity, whatsoever, and procedural safe guards provided for, has been complied with and observed with full consciousness, and no prejudice has been caused to the Petitioner by any means. Charges against the Petitioner have been brought home on the basis of evidence adduced in the Summary Court Martial proceedings, as such no interference is warranted by this Court. 4. To this counter-affidavit, rejoinder-affidavit has been filed and therein, it has been asserted that there has been gross violation of statutory provisions and element of fairness is completely lacking and missing, as such writ petition in all eventuality is liable to be allowed. Statement of fact mentioned in the writ petition has been reiterated and that of the counter-affidavit has been rebutted with vehemence. 5. After pleadings inter se parties have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. 6. Statement of fact mentioned in the writ petition has been reiterated and that of the counter-affidavit has been rebutted with vehemence. 5. After pleadings inter se parties have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. 6. Sri R. C. Singh, advocate, appearing on behalf of Petitioner, submitted with vehemence that in the present case, Rule 22 (1) (2) and (3) of the Army Rules, 1954 have been flouted with impunity by mentioning that summary court martial proceedings have been undertaken without reference to the Officer empowered to convene District Court Martial, as such entire proceedings are vitiated. It has also been asserted that at no point of time any order has been passed dispensing with the procedure prescribed under Sub-rule (1) of Rule 22 of Army Rules, 1954, as such entire proceeding is vitiated. It has also been contended that at no point of charge against Petitioner has been heard by the Commanding Officer in presence of the accused, and further no liberty was accorded to cross-examine the witnesses against him and to call such witness to make such statement as may be necessary for his defence. Further, it has been submitted that Rule 34 of the Army Rules, 1954 has also been flouted with impunity, as the period of 96 hours had not elapsed in between service of charge-sheet and commencement of the proceedings. Further, in the proceedings so undertaken qua the next friend, who was a lawyer, facilities had not been provided for and neither opportunity had been afforded to consult next friend, during the course of cross-examination, as such the very purpose of providing next friend has been frustrated and defeated. 7. Sri K. D. Nag, learned Counsel representing Union of India, on the other hand, countered the said submission by contending that Rules 22 (1) and 34 of Army Rule, 1954 have been followed in their words and spirit and records appended are speaking for itself. Further, Petitioner was given liberty for next friend, who was lawyer of his own choice and he was present full time in proceedings so undertaken, as such no grievance can be raised in this respect. Further, Petitioner was given liberty for next friend, who was lawyer of his own choice and he was present full time in proceedings so undertaken, as such no grievance can be raised in this respect. Alternatively, it has been submitted that shortcomings and infirmities, even though they are not in existence which are sought to be pointed out, are not of such nature so as to vitiate the Summary Court Martial proceedings, and the said proceedings are clearly saved by the provisions as contained under Rule 149 of the Army Rules, 1954, and as such no interference is warranted by this Court, and as such writ petition is liable to be dismissed. 8. After the respective arguments have been advanced, relevant provisions of Rules, on which reliance has been placed by both the parties, are being quoted below: 22. Hearing of charge.-(1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence: (1) Provided that where the charge against the accused arises as a result of investigation by a Court of Enquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in Sub-rule (1) (2) The Commanding Officer shall dismiss a charge brought before him, if, in his opinion, the evidence does not show that an offence under the Act has been committed, and may do so if he is satisfied that the charge ought not to be proceeded with: Provided that the Commanding Officer shall not dismiss a charge which, he is debarred to try under Sub-section (2) of Section 120 without reference to superior authority as specified therein. (3) After compliance of Sub-rule (1), if the Commanding Officer is of the opinion that the charge ought to be proceeded with, he shall within a reasonable time: (a) dispose of the case u/s 80 in accordance with the manner and form in appendix III ; or (b) refer the case to the proper superior authority ; or (c) adjourn the case for the purpose of having the evidence reduced to writing ; or (d) if the accused is below the rank of warrant officer, order his trial by summary court-martial: Provided that the commanding officer shall not order trial by a summary court-martial without a reference to the officer empowered to convene a district court-martial or an active service a summary general court martial for the trial of the alleged offender unless: (a) the offence is one which he can try by a summary court-martial without any reference to that officer ; or (b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. (4) Where the evidence taken in accordance with Sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge (s) on the basis of the evidence so taken as the investigation of the original charges. 23. Procedure for taking down the summary of evidence.-(1) Where the case is adjourned for the purpose of having the evidence reduced to writing at the adjourned hearing the evidence of the witness who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. (2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the question together with the answers thereto shall be added to the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be signed by him, or if he cannot write his name, shall be attested by his marks and witnessed as a token of the correctness of the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be signed by him, or if he cannot write his name, shall be attested by his marks and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: “Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.” Any statement thereupon made by the accused shall be taken down and read over to him but he will not be cross-examined upon it. The accused may then call his witness, including, if he so desire, any witness as to character. (4) The evidence of the witness and the statement (if any) of the accused shall be recorded in the English language. If the witnesses or accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands. (5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved) the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. (6) Any witness who is to subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III. 24. Remand of accused.-(1) The evidence and statement (if any) taken down in writing in pursuance of Rule 23 (hereinafter referred to as the “summary of evidence”), shall be considered by the commanding officer, who thereupon shall either: (a) remand the accused for trial by a court-martial ; or (b) refer the case to the proper superior military authority ; or (c) if he thinks it desirable, re-hear the case and either dismiss the charge or dispose of it summarily. (2) If the accused is remanded for trial by a court-martial, the commanding officer shall without unnecessary delay either assemble a summary court-martial (after referring to the officer empowered to convene a district court-martial or on active service as summary general court-martial when such reference is necessary) or apply to the proper military authority to convene a court-martial, as the case may require. 28. Charge-sheet and charge. -(1) A charge-sheet shall contain the whole issue or issues to be tried by a court-martial at one time. (2) A charge means an accusation contained in a charge-sheet that a person subject to the Act has been guilty of an offence. (3) A charge-sheet may contain one charge or several charges. 29. Commencement of charge-sheet.-Every charge-sheet shall begin with the name and description of the person charged, and state his number, rank, name and the corps of department (if any) to which he belongs. When the accused person does not belong to the Regular Army, the charge-sheet shall show by the description of him, or directly by an express averment that he subject to the Act in respect of the offence charged. 30. Contents of charge.-(1) Each charge shall state one offence only and in no case shall an offence be described in the alternative in the same charge. (2) Each charge shall be divided into two parts: (a) statement of the offence ; and (b) statement of the particulars of the act, neglect or omission constituting the offence. (3) The offence shall be stated, if not a civil offence, as nearly as practicable, in the words of the Act, and if a civil offence, in such words as sufficiently describe that offence, but not necessarily in technical words. (4) The particulars shall state such circumstances respecting the alleged offence as will enable the accused to know what act, neglect or omission is intended to be proved against him as constituting the offence. (5) The particulars in one charge may be framed wholly or partly by a reference to the particulars in another charge, and in that case so much of the latter particulars as are so referred to shall be deemed to form part of the first mentioned as well as of the other charge. (5) The particulars in one charge may be framed wholly or partly by a reference to the particulars in another charge, and in that case so much of the latter particulars as are so referred to shall be deemed to form part of the first mentioned as well as of the other charge. (6) Where it is intended to prove any facts in respect of which any deduction from pay and allowances can be awarded as a consequence of the offence charged, the particulars shall state those facts and the sum of the loss or damage it is intended to charge. 32. Validity of charge-sheet.-(1) A charge-sheet shall not be invalid merely by reason of the fact it contains any mistake in the name or description of the person charged, provided that he does not object to the charge-sheet during the trial, and that no substantial injustice has been done to the person charged. (2) In the constructions of a charge-sheet or charge, there shall be presumed in favour of supporting the same every proposition which may reasonably be presumed to be impliedly included though not expressed therein. 34. Warning of accused for trial.-(1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that on his giving the names of witnesses whom he desired to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly. The interval between his being so informed and his arraignment shall not be less than ninety six hours or where the accused person is on active service less than twenty four hours. (2) The officer at the time of so informing the accused shall give him copy of the charge-sheet and shall, if necessary, read and explain to him the charges brought against him. If the accused desired to have it in a language which he understands, a translation thereof shall also be given to him. (3) The officer shall also deliver to the accused a list of the names, rank and corps (if any) of the officers who are to form the court, and where officers in waiting are named, also of those officers in court-martial other than summary court-martial. (3) The officer shall also deliver to the accused a list of the names, rank and corps (if any) of the officers who are to form the court, and where officers in waiting are named, also of those officers in court-martial other than summary court-martial. (4) If it appears to the Court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced. 106. Proceedings.-(1) The officer holding the trial hereinafter called the court shall record or cause to be recorded (in the Hindi or English language,) the transactions of every summary court-martial. 111. Arraignment of accused. -(1) After the court and interpreter (if any) are sworn or affirmed as above mentioned, the accused shall be arraigned on the charges against him. (2) The charge on which the accused is arraigned shall be read and, if necessary, translated to him, and he shall be required to plead separately to each charge. 112. Objection by accused to charge.-The accused, when required to plead to any charge, may object to the charge on the ground that it does not disclose an offence under the Act, or is not in accordance with these rules. 113. Amendment of charge.-(1) At any time during the trial if it appears to the court that there is any mistake in the name or description of the accused in the charge-sheet, it may amend and charge-sheet so as to correct that mistake. (2) if on the trial of any charge, it appears to the court at any time before it has begun to examine the witnesses, that in the interests of justice and addition to omission from, or alteration in, the charge is required, if may amend such charge and may, after due notice to the accused, and with the sanction of the officer empowered to convene a district court-martial or an active service a summary general court-martial for the trial of the accused if the amended charge requires such sanction, proceed with the trial on such amended charge. 115. General plea of “Guilty” or “Not Guilty”.-(1) The accused person's plea-”Guilty” or “Not Guilty” (or if he refuses to plead, or does not plead intelligibly either one or the other, a plea of “Not Guilty”)-shall be recorded on each charge. 115. General plea of “Guilty” or “Not Guilty”.-(1) The accused person's plea-”Guilty” or “Not Guilty” (or if he refuses to plead, or does not plead intelligibly either one or the other, a plea of “Not Guilty”)-shall be recorded on each charge. (2) If an accused person pleads “Guilty”, that plea shall be recorded as the finding of the Court ; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty. (2A) Where an accused pleads Guilty, such plea and the factum of compliance of Sub-rule (2) of this rule, shall be recorded by the Court in the following manner: Before recording the plea of Guilty of the accused, the court explained to the accused the meaning of the charge(s) to which he had pleaded Guilty and ascertained that the accused had understood the nature of the charge(s) to which he had pleaded Guilty. The Court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charge(s) and the effect of his plea of Guilty, accepts and records the same. The provisions of Rule 115 (2) are thus complied with. (4) Where an accused person pleads guilty to the first of two or more charges laid in the alternative, the court may, after Sub-rule (2) of this rule has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges without requiring the accused to plead thereto, and a record to that effect shall be made upon the proceeding of the court. 119. Witnesses in reply to defence.-The court may, if it thinks it necessary in the interest of justice, call witnesses in reply to the defence. 120. 119. Witnesses in reply to defence.-The court may, if it thinks it necessary in the interest of justice, call witnesses in reply to the defence. 120. Verdict.-After all the evidence, both for prosecution and defence, has been heard, the court shall give its opinion as to whether the accused is guilty or not guilty of the charges. 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 adviser 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. 149. Validity of irregular procedure in certain cases.-Whenever it appears that a court-martial had jurisdiction to try any person and make a finding and that there is legal evidence or a plea of guilty to justify such finding, such finding and any sentence which the court-martial had jurisdiction to pass thereon may be confirmed, and shall, if so confirmed and in the case of a summary court-martial where confirmation is not necessary, be valid notwithstanding any deviation from these rules or notwithstanding that the charge-sheet has not been signed by the commanding officer or the convening officer, provided that the charges have in fact, before trial been approved by the commanding officer and the convening officer or notwithstanding any defect or objection, technical or other, unless it appears that any injustice has been done to the offender, and where any finding and sentence are otherwise valid they shall not be invalid by reason only of a failure to administer an oath or affirmation to the interpreter or shorthand writer ; but nothing in this rule shall relieve an officer from any responsibility for any willful or negligent disregard of any of these rules. 9. The abovementioned Rules have been framed in exercise of powers conferred u/s 191 of the Army Act, 1950 (Act No. 46 of 1950) and all other powers enabling in this behalf. To begin with the rules in Chapter v. may be noticed. Same deals with the Investigation of charges and Remand for Trial Power of Commanding Officer. Rule 22 (1) prescribes procedure for hearing of charge at a stage anterior to the convening of court Martial. To begin with the rules in Chapter v. may be noticed. Same deals with the Investigation of charges and Remand for Trial Power of Commanding Officer. Rule 22 (1) prescribes procedure for hearing of charge at a stage anterior to the convening of court Martial. It obligates the Commanding Officer to hear the charges against a person, subject to the Act in his presence with full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence. Said Sub-rule (1) of Rule 22 contains a proviso to the effect that where the charge against the accused arises as a result of investigation by a court of inquiry, wherein the provision of Rule 180 has been complied with in respect of that accused, the Commanding Officer may dispense with the procedure in Sub-rule (1). Sub-rule (2) of Rule 22 obligates the Commanding Officer to dismiss the charge in two contingencies (i) if in his opinion, the evidence brought does not show that any offence has been committed ; (ii) Discretion is exercised in the direction that the charge ought not to be proceeded with. Under Sub-rule (3) of Rule 22 at the conclusion of hearing, if Commanding Officer forms opinion that charge ought to be proceeded with, then without causing any unnecessary delay, four options provided for can be exercised. As a first option, the matter can be summarily disposed of u/s 80 in accordance with the manner and form in appendix III, Second option is to refer the matter to the proper Superior Authority. Third option is to adjourn the case for the purpose of having evidence reduced to writing. Fourth option is to be exercised in the contingency when accused is below the rank of Warrant Officer, to order his trial by Summary Court Martial. Proviso has been added to Sub-rule (3) of Rule 22 mentioning therein that Commanding Officer shall not order trial by a Summary Court Martial, without reference to officer empowered to convene District Court Martial, unless the offence is one, which can be tried by summary court martial, without reference to officer concerned. Rule 23 deals with procedure for taking down the summary of evidence. Rule 23 deals with procedure for taking down the summary of evidence. Sub-rule (1) of Rule 23 provides that whenever case is adjourned with the object of having the evidence reduced to writing at the adjourned hearing at the point of time of evidence of the witness who were present and gave evidence before the commanding officer, whether for or against the accused, and of any other person whose evidence appears to be relevant, is to be reduced in writing in the presence of the accused. Sub-rule (2) of Rule 23 affords opportunity to the accused to cross-examine any witness, and this exercise is to be recorded with the question and answer to the same. Sub-rules (3) and (4) of Rule 23 deal with recording of evidence of witness and its certification and thereafter the statement of accused, which is to be recorded and read over to him with no cross-examination on the same. Accused has been vested with the right to call his witness and their statement to be so recorded. Sub-rule (5) of Rule 23 gives authority to officer taking evidence for procuring written statement of incumbent purported to be signed by him, who is a witness, who cannot come due to exigencies of service or on any other ground. After the evidence is reduced in writing, Rule 24 talks of remand of accused. The Commanding Officer on the basis of evidence and statement, has three options to proceed. First option is to remand the accused for trial by a court martial. Second option is to refer the matter to proper Superior Authority and the last option is to rehear the case and either dismiss the charge or dispose it of summarily. After remand for trial by court martial under Sub-rule (2) of Rule 24, Commanding Officer is enjoined upon to assemble summary court martial, and in case reference is required, then reference be made or apply to the proper Military Authority, as the case may be. Rule 28 deals with the charge-sheet and charge. Rule 29 deals with commencement of charge-sheet. Rule 30 deals with the contents of charge. Rule 32 deals with validity of charge-sheet. Rule 34 deals with warning to accused for trial. Rule 28 deals with the charge-sheet and charge. Rule 29 deals with commencement of charge-sheet. Rule 30 deals with the contents of charge. Rule 32 deals with validity of charge-sheet. Rule 34 deals with warning to accused for trial. Under Sub-rule (1) of Rule 34, the accused before he is arraigned is liable to be informed of every charge for which he is to be tried and further for providing name of witnesses whom he intends to call in his defence. The interval between his being so informed and his arraignment shall not be less than ninety six hours or where the accused person is on active service then period prescribed is twenty four hours. Section 3 of chapter v. deals with summary court martial. Rule 106 provides that officer holding the trial be called as court, and it would be duty of the court to record the transactions, of every summary court martial. Evidence is to be taken in narrative form. Rule 111 deals with arraignment of accused of the charges levelled against him. Rule 112 provides opportunity to the accused to object to the charges, that same does not disclose any offence. Rule 113 deals with amendment of. Rule 115 deals with general plea of “Guilty” or “Not Guilty”. Rule 118 deals with procedure to be followed when accused pleads “Not Guilty” then evidence of prosecution has to be taken. After prosecution evidence is taken, the accused has right to address the court in his defence and produce evidence also. The court is also entitled to put question to the accused for the purpose of enabling him to explain any circumstance, appearing against him in his statement, or statement of the witness, in reply to defence. Rule 120 provides that after all the evidence, both for prosecution and defence, has been heard, the court shall give its verdict of accused being “Guilty” or “Not Guilty”. Rule 129 deals with friend of accused who may be any person to assist/advise him in trial, with no right to cross-examine and address the court. Rule 149 deals with validity of irregular proceedings in certain cases, and saves the proceedings when it is admitted position, that the court martial had jurisdiction, and there was legal evidence to justify said finding, notwithstanding any deviation from the rules. 10. Rule 149 deals with validity of irregular proceedings in certain cases, and saves the proceedings when it is admitted position, that the court martial had jurisdiction, and there was legal evidence to justify said finding, notwithstanding any deviation from the rules. 10. After all these relevant rules, which cover the field, have been noticed, the relevant law on this aspect of the matter is also being noticed in order to test as to whether the facts of the present case, and issues raised, warrant any interference by this Court, while exercising its power of judicial review under Article 226 of the Constitution of India. Hon'ble Apex Court in case of Major G.S. Sodhi Vs. Union of India (UOI), AIR 1991 SC 1617 , has held that the procedural defect unless vital and substantial, same will not affect the trial when accused duly participated in the proceedings and there is no flagrant violation of any procedural provision causing prejudice to the accused. Thereafter again in the case of Union of India (UOI) and Others Vs. Major A. Hussain (IC-14827) : AIR 1998 SC 577 , scope of judicial review in all these matters has been discussed, and it has been held that requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that the accused has been prejudiced or that a mandatory provision has been violated. It has been mentioned that High Court should not have allowed the challenge to the validity of conviction and sentence of the accused when evidence was sufficient, court-martial had jurisdiction over the subject matter and had followed the prescribed procedure and was within its power to award punishment. 11. The first submission, which has been made in the present case on behalf of the Petitioner is that Rule 22 (1) of the Army Rules, 1954 has been violated and breached. Rule 22 (1) demands that every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence. Rule 22 (1) demands that every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence. A proviso has been attached to the said sub-rule providing therein that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the Commanding Officer may dispense with the procedure in Sub-rule (1). Here, in the present case record of proceedings before Commanding Officer under Rule 22 has been brought on record by way of Annexure-9 to the writ petition. In column No. 2 of the said proceeding, it has been noted that calling and hearing of witness in terms of Rule 22 (1) has been dispensed with, since Rule 180 has been complied with at the court of inquiry in respect of the accused. Below this signature of the accused has been noted. Thereafter in column No. 3, it has been noted that charges commenced on 6.7.2002 at 12.45 hours and the witnesses mentioned therein were heard by the Commanding Officer in the presence of the accused, who was given full opportunity to cross-examine each of them. Personal particulars of the witnesses have been noted, and it has also been mentioned that accused declined to cross-examine the witnesses. Column No. 5 has been scored out which contained recital to the effect that accused was informed by the Commanding Officer that he was at liberty to make any statement and call any witness in his defence and below the same, it has been mentioned that accused declined to make statement. Column No. 6 contains statement that no defence witness was produced and after conclusion of hearing of the charges, orders were passed to the effect that evidence be reduced in writing. Said proceeding has been alleged to be held in presence of two independent witnesses. 12. Here the undisputed position is that the Court of Inquiry had been constituted in terms of Rule 177 to collect evidence and after following due procedure, report had been submitted. Said proceeding has been alleged to be held in presence of two independent witnesses. 12. Here the undisputed position is that the Court of Inquiry had been constituted in terms of Rule 177 to collect evidence and after following due procedure, report had been submitted. Column No. 2 clearly demonstrates that calling and hearing of witness in terms of Rule 22 (1) had been dispensed with. Petitioner has made signature below the same, and this is clearly suggestive of the circumstance, that provisions of Rule 22 (1) have been dispensed with. After dispensing with the compliance of Rule 22 (1), three witnesses were heard, in presence of the accused, on the charges, and Petitioner at this juncture declined to make statement and produce evidence. After this, directives have been issued for reducing in writing the evidence produced, and Major M. Das had been asked to record evidence. In proceeding under Rule 23 Bharat Ram Kamble has been examined as P.W. 1, and Petitioner has been given right to cross-examine him and Petitioner has exercised his right by cross-examining and entire proceeding has been duly certified. Similar is the situation qua P.W. 2 Sagar Srikant Bala Saheb ; P.W. 3 Jahar Jai Bharat Sahib Rao, P.W. 4 Chavan Bharat Kumar Fulabhai ; P.W. 5 J. N. Sharma ; P.W. 6 Santosh Baban Babar ; P.W. 7 Vijai Khushall Keche ; P.W. 8 Kulwant Singh ; P.W. 9 Sandip Kumar Shivaji Awale ; P.W. 10 V. Tukaram, P.W. 11 Maj (Mrs.) Ritu Bakshi. Petitioner has decided to cross-examine P.W. 11 Maj (Mrs.) Ritu Bakshi. After prosecution evidence had been over, Petitioner made his statement on 10.6.2002, called persons as Defence witnesses, namely D.W. 1 Piyush Kumar ; D.W. 2 Nizamuddin ; D.W. 3 Ramesh Patel ; D.W. 4 Rajesh Patel ; D.W. 5 Satinder Kumar Rai ; D.W. 6 Tarsem Singh ; D.W. 7 Surendra Kumar. All these persons, apart from being examined have also been cross-examined. Entire summary of evidence, which has been reduced to writing, at that point of time, Petitioner has been present, has participated, by actively cross-examining the witnesses, both of the prosecution and defence. With these proceedings in hand, suggestion that Rule 22 has been flouted, is of no consequence, and coupled with this no prejudice, whatsoever, has been substantiated by the Petitioner in this regard. With these proceedings in hand, suggestion that Rule 22 has been flouted, is of no consequence, and coupled with this no prejudice, whatsoever, has been substantiated by the Petitioner in this regard. Merely, because in the present case dispensation with the procedure of Sub-rule (1) of Rule 22,and proceedings undertaken under Sub-rule (3) of Rule 22 have been certified, at one place, the same will in no way vitiate, the validity of proceedings so undertaken. 13. Much stress has been laid on the fact that summary court martial proceeding has been undertaken without reference to the officer empowered to convene district court martial or on active service, a summary general court martial for the trial, and as such entire proceedings are vitiated. In this reference, reliance has been placed on the judgment of this Court in the case of Narendra Pal Singh Vs. Union of India (UOI) and Others, (2001) 3 UPLBEC 2253 . This fact is undisputed that summary court martial proceedings have been undertaken without making any reference, as envisaged, to officer empowered to convene district court martial. Rule 108 defines court martials of four kinds (1) general court martial (2) district court martial (3) summary general court martial and (4) summary court martial. Rule 116 visualises, holding of summary court martial by the Commanding Officer of any corps; department or detachment of Regular Army, and he shall alone constitute the court. Rule 120 provides and deals with powers of summary court martial. Here in the present case, this fact has not been disputed that Commanding Officer was not competent to try the said offence. Issue is as to whether reference was necessary or not, Commanding Officer was fully competent to try by way of summary court martial, charges under Sections 46(a) and 47 of the Army Act, without making reference in terms of Section 120 of the Act. Consequently, in the present case reference was not at all required to be made, and same was clearly saved by the exception carved out. Judgment cited above, does not come to the rescue of the Petitioner, as in the said case finding has been returned that officer was not empowered to have tried the aforementioned charge. 14. Consequently, in the present case reference was not at all required to be made, and same was clearly saved by the exception carved out. Judgment cited above, does not come to the rescue of the Petitioner, as in the said case finding has been returned that officer was not empowered to have tried the aforementioned charge. 14. Much emphasis has also been laid on the fact that Rule 34 has been violated with impunity, as there has been no gap of 96 hours in between service of charge-sheet and commencement of proceedings, and as such entire proceeding is vitiated and is liable to be quashed. In this context, record in question reveals that charge-sheet dated 27.6.2002 was sent to the Petitioner under covering letter dated 27.6.2002 informing the Petitioner that he is being warned in reference to charges brought against him, and he would be brought before summary court martial on 2.7.2002. Thereafter, by means of communication dated 6.7.2002 charge No. 2 has been altered by deleting the same, and splitting charge No. 3 into two charges. As to whether Rule 34 of the Army Rules, has been violated or not, has to be seen. Rule 34 envisages that interval between his being so informed and his arraignment shall not be less than ninety six hours or where the accused person is on active service less than twenty four hours. Warning had been issued to Petitioner on 27.6.2002 that he would be tried at summary court martial on 2.7.2002, thus, 96 hours period was provided for. Charge-sheet dated 6.7.2002, which had been supplied subsequently to the Petitioner is altered charge-sheet in terms of Rule 113, which empowers the authorities to alter the charge at any time before evidence starts. In the altered charge-sheet, charge No. 2 has been dropped and charge No. 3 has been split into two charges. No new material has been inserted in the charge-sheet dated 6.7.2002. No prejudice has been caused on account of this altered charge-sheet, nor any complaint has been made in this respect. Much reliance has been placed on the judgment of this Court in the case Ram Parvesh Rai v. Union of India, 1988 UPLBEC 783 and of M.Z.H. Khan Vs. No new material has been inserted in the charge-sheet dated 6.7.2002. No prejudice has been caused on account of this altered charge-sheet, nor any complaint has been made in this respect. Much reliance has been placed on the judgment of this Court in the case Ram Parvesh Rai v. Union of India, 1988 UPLBEC 783 and of M.Z.H. Khan Vs. Chief of Army Staff, New Delhi and Others, (2001) 4 AWC 2794 , that entire enquiry proceeding stands vitiated, as charge-sheet has not been served, at least before 96 hours before his arraignment. In both the cases cited above, there was clear cut violation noted by the court, that court martial proceedings commenced much before 96 hours of even issuance of charge-sheet. Here in the present case, Petitioner has been warned and charge-sheet has been issued to him on 27.6.2002, fixing 2.7.2002 for commencement of summary court martial proceeding. Thus, there was gap of 96 hours and before evidence started on 9.7.2002, altered charge-sheet dated 6.7.2002 has been furnished to the Petitioner, with deletion of charge No. 2 and splitting of charge No. 3 into two charges. No new fact or material, was inserted in charge-sheet dated 6.7.2002 and this was the reason that Petitioner participated in the proceedings, without raising any objection, in this respect. Where in between information furnished by way of charge-sheet and other material and arraignment made is not less than ninety six hours, same is substantial compliance of the same, and in case charge is altered and due notice is given to accused person, and if accused person feels that more time is required, then he can apprise the court of the prejudice, and the court can take steps to adjourn the proceedings to avoid the accused so being prejudiced. 15. Here, in the present case, proceedings of summary court martial have been perused, which have been filed by the Petitioner himself. The said proceedings, on the face of it, are quite immaculate, where fair trial has been held, and full opportunity has been provided for, to the Petitioner to defend his case. Bharat Ram Kamble has appeared as Prosecution Witness No. 1. Meticulous cross-examination has been done, by putting forty four questions, practically on all aspect of the incident. Second prosecution witness is Jadhao Jai Bharat Sahib Rao. Twenty one questions have been put up to this witness. Bharat Ram Kamble has appeared as Prosecution Witness No. 1. Meticulous cross-examination has been done, by putting forty four questions, practically on all aspect of the incident. Second prosecution witness is Jadhao Jai Bharat Sahib Rao. Twenty one questions have been put up to this witness. Apart from this for prosecution P.W. 3 Chauhan Bharat Kumar Fulabhai has been examined and he has been cross-examined by the Petitioner. Similar is the situation qua P.W. 4 J. N. Sharma, P.W. 5 Santosh Baban Babar, P.W. 6 Vajai Khushal Keche, P.W. 7 Kulwant Singh, P.W. 8 Sanjiv Kumar Awale. All these witnesses have been cross-examined by the Petitioner, however, no question, has been put up by the Court to these prosecution witnesses. P.W. 9 M. V. Tukaram has not been examined by Petitioner, but various questions have been put by the court. P.W. 10 Maj. (Mrs.) Ritu Bakshi has also been cross-examined by Petitioner. P.W. IIA. A. Surendram has also been cross-examined by Petitioner. P.W. 12 Ravindra Shinde has been cross-examined by Petitioner. P.W. 13 Kambhar Rodhak Sambhaji and P.W. 14 Hemant Kumar has also been cross-examined by Petitioner, and court has also put questions to him. Re-examination of P.W. 4 J. N. Sharma has been done, and in re-examination Petitioner has cross-examined him. Thereafter, defence witnesses have been produced. D.W. 1 is Udhan Singh who has been cross-examined by the Court and re-examined by the Petitioner. Similar is the situation of D.W. 2 hav/CLK Badgujar Umakant, who was cross-examined by court and re-examination of his was declined by Petitioner. D.W. 3 Surendra Kumar, D.W. 4 D. P. Singh, D.W. 5 C. R. Ram have been cross-examined by the court and thereafter, re-examined by the Petitioner. After the said proceeding, Petitioner has submitted his defence and thereafter, court has put questions, in terms of Rule. 118. All these proceedings, have been taken note of to see that no arbitrary treatment has been meted to the Petitioner, and no such exercise has been undertaken which has prejudiced the Petitioner by any means. 16. Now, the last question, raised in the present case is as to whether Rule 129 of the Army Rules, which deals with providing of next friend, has been violated or not. In the present case request was made for providing lawyer as next friend. 16. Now, the last question, raised in the present case is as to whether Rule 129 of the Army Rules, which deals with providing of next friend, has been violated or not. In the present case request was made for providing lawyer as next friend. Said request had not at all been turned down, rather it has been mentioned that it was not within the domain of the authority to summon him, however, it was left open to the Petitioner to bring him at his own. The Petitioner thereafter brought the aforesaid lawyer and at each and every place his presence has been noted in the proceeding. Next friend has been permitted to, participate in the proceeding subject to restrictions contained in Rule 129. On 12.7.2002, adjournment was accorded to the Petitioner for preparing his defence. Thereafter, court re-assembled on 15.7.2002, wherein next friend was present. Contrary statement that audience was refused, is unsustainable, and the Petitioner cannot have any grievance on this aspect of the matter. 17. Thus, in the present case, rules have been substantially and fully complied with and violation of the rules, if any, which has been alleged, does not invalidate the proceedings of summary court martial by any means, as no prejudice, whatsoever, has been shown or caused to the Petitioner and same is saved by Rule 149 of the rules. There is sufficient evidence to sustain conviction, the concerned court had the authority to undertake proceedings and proceedings undertaken and fair, with full opportunity to Petitioner to defend himself, as such writ petition lacks merit and is dismissed. 18. No order as to costs.