1. These appeals arise from a common judgment and order passed by a learned Single Judge in five several writ petitions, which were filed by the appellants, and have been dismissed by the judgment and order under appeals. 2. Appellants were Army men. While they were serving the Army, a court of enquiry was held. What was the object and purpose of that court of enquiry has not come on record of this case. However, there appears to be no dispute that character of the appellants was the subject matter of enquiry by the court of enquiry. Upon conclusion of the court of enquiry, charges were framed against the appellants. Those were said to have been heard by the Commanding Officer and, thereupon, the Commanding Officer opined for recording evidence. Subsequently, the matter has been concluded by directing imprisonment of the appellants for different periods and by dismissing them from service. At the time when the punishment orders were passed, sub-rule (1) of Rule 22 of the Army Rules, 1954 was different and the proviso thereto was not inserted therein. 3. In the writ petitions, the principal contention of the appellants was non-compliance of the mandatory provisions contained in sub-rule (1) of Rule 22 of the said Rules and, accordingly, all proceedings subsequent to the stage of sub-rule (1) of Rule 22 of the said Rules stand vitiated. It was also contended that the charges were identical, but the punishments varied, inasmuch as a Major, who had been cashiered for the self-same charge upon proof has not been directed to undergo rigorous imprisonment; whereas the appellants, who were subordinates and were holding much lower posts, in addition to being dismissed from service, were directed to undergo rigorous imprisonment and, that too, varying from period to period amongst the appellants themselves. By the judgment and order under appeal, relying upon the proviso inserted in sub-rule (1) of Rule 22 of the said Rules, the learned Judge answered the main contention of the appellants in the writ petitions. It does not appear that the learned Judge addressed the contention that for the selfsame crime alleged to have been committed, which is said to have been proved on the same evidence, whether different punishments could be given. 4. The records of the case have been produced before us. It does not appear that the learned Judge addressed the contention that for the selfsame crime alleged to have been committed, which is said to have been proved on the same evidence, whether different punishments could be given. 4. The records of the case have been produced before us. From that, it appears that on 8th August, 1989 charge was heard under sub-rule (1) of Rule 22 of the said Rules by the Commanding Officer when he directed recording of summary of evidence in terms of Clause (d) of sub-rule (3) of Rule 22 of the said Rules. The proceeding dated 8th August, 1989, as appears from paragraph 4 thereof, suggests that no prosecution witness was heard by the Commanding Officer, for, in the said clause, names of the appellants had been mentioned, who could not be said to be prosecution witnesses. 5. Sub-rule (1) of Rule 22 of the said Rules, as it stood at the relevant time, obliged hearing of every charge against a person subject to the Act other than an officer in the presence of the accused, where the accused had full liberty to cross-examine any witness against him and also to call any witness and make any statement in his defence. It, however, did not direct the Commanding Officer to do so. The said sub-rule made it mandatory that a charge against a person subject to the Act who is not an officer shall be heard in his presence. At the time of such hearing the person charged is entitled to cross-examine any witness against him and to call any witness and make any statement in his defence. Therefore, the mandate is to support the charge, but not necessarily before the Commanding Officer. In order to support the charge, witnesses are required to be produced who may be cross-examined, and the accused himself, in addition to calling witnesses, may make statement to defend himself of the charge. The purpose, as would be evidenced from a conjoint reading of sub-rules (2) and (3) of Rule 22 of the said Rules, as it stood then, was to enable the Commanding Officer to opine whether the charge should be dropped or should be proceeded with. If he decides to proceed with it, he can direct steps as are required to be taken, as provided in various clauses of sub-rule (3) of Rule 22 of the said Rules. 6. If he decides to proceed with it, he can direct steps as are required to be taken, as provided in various clauses of sub-rule (3) of Rule 22 of the said Rules. 6. Sub-rule (1) of Rule 22, as it stood then, is not mandatory insofar as officers are concerned, but seems to be mandatory insofar as a person subject to the Act other than an officer. The appellants being persons subject to the Act other than an officer, sub-rule (1) of Rule 22 of the said Rules did apply to them. 7. The question is whether sub-rule (1) of Rule 22 of the said Rules is mandatory or not. In the case of Flying Officer S. Sunder Rajan v. Union of India, reported in AIR 1970 Delhi 29, a Full Bench of the Delhi High Court gave an impression that the provisions contained in sub-rule (1) of Rule 22 of the said Rules, as it stood then, was not mandatory but directory. A Bench of the Honble Supreme Court comprising of three Honble Judges in the case of Lt. Col. Pritpal Singh Bedi v. Union of India, reported in 1982 (3) SCC 140, at paragraph 39 thereof frankly observed that they have their reservations about the view taken by the Full Bench of the Delhi High Court. That appears to be a clear indicator that the provisions contained in sub-rule (1) of Rule 22 of the said Rules, as it stood then, was, in fact, mandatory in nature. The question is which part of this sub-rule is mandatory; is it the substance thereof or the procedure mentioned therein. If we look at the substance, then it only says that before the matter is taken up further, which may or may not lead to a punishment, in the presence of the person charged an attempt must be made to ascertain whether it would be wise to take the matter further. After the sub-rule (1) of Rule 22 was amended, the Commanding Officer has been named as the person who is required to hear the charge. However, the sub-rule in question, as it stood then, did not require the Commanding Officer to hear the charge. It only required that the charge shall be heard in the presence of the accused. After the sub-rule (1) of Rule 22 was amended, the Commanding Officer has been named as the person who is required to hear the charge. However, the sub-rule in question, as it stood then, did not require the Commanding Officer to hear the charge. It only required that the charge shall be heard in the presence of the accused. If the charge has been heard at the court of enquiry stage after complying with the provisions contained in Rule 180 of the said Rules, as it then stood, which mandated presence of the person whose character is likely to be affected, it cannot be contended that the substance of sub-rule (1) of Rule 22, as it stood then, had been violated. 8. After sub-rule (1) of Rule 22 was amended while it had been mandated that the Commanding Officer shall hear the charge, it had been provided that he may dispense with the same when the charge arises as a result of investigation by a court of enquiry. In other words, while it was not mandatory earlier that the charge must be heard by the Commanding Office, it has now been made mandatory with liberty to the Commanding Officer to dispense with the same if the charge arises as a result of investigation by a Court of enquiry; provided, of course, provisions of Rule 180 have been complied with. 9. The said amendment also makes it abundantly clear that the substance of sub-rule (1) of rule 22 would be met when the charge is heard in the presence of the person charged, as is the mandate of Rule 180 of the said rules, though necessarily not by the Commanding Officer. The hearing must be by an authority. Though before the amendment, there was no pointer who should be that authority, but by the amendment it has been made clear that the authority may be the Court of Enquiry. The conclusion, therefore, would be that if the charge has been heard by the Court of Enquiry, substance of sub-rule (1) of rule 22, as it stood then, would be met. 10. The conclusion, therefore, would be that if the charge has been heard by the Court of Enquiry, substance of sub-rule (1) of rule 22, as it stood then, would be met. 10. If we look at the procedure prescribed in sub-rule (1) of rule 22 of the said Rules, as it stood then, it required, in addition to the presence of the person charged, to give him an opportunity to defend himself by cross-examining any person, who is a witness against him, and to call any witness or to make any statement in his defence. Rule 180 of the said Rules prescribed the same procedure. The conclusion, therefore, would be that when a Court of Enquiry had opined upon compliance of the provisions contained in rule 180 of the said Rules, the substance as well as the procedure prescribed in sub-rule (1) of rule 22 would be met, and on such opinion the Commanding Officer might exercise his discretion granted to him under sub-rules (2) and (3) of the said rule, as they stood then. 11. As aforesaid, in the instant case, a court of enquiry was initiated and at the same time, as aforesaid, it is not known what was the subject matter of that enquiry. Be that as it may, it is not the contention of the appellants that the charge against them was not enquired at the enquiry stage. In other words, the court of enquiry itself enquired the charge against the appellants in their presence but at the inquiry stage. This state of affair clearly brings out two things that substance of sub-rule (1) Rule 22, as it stood then, had been complied with and, at the same time, the procedural part thereof had also been complied with. At that time, there was no mandate in sub-rule (1) of Rule 22 of the said Rules that the charge must be heard by the Commanding Office, which is the mandate, as it stands today, after the amendment was effected in Rule 22 of the said Rules on 6th December, 1993. 12. It was contended by the appellants that in terms of sub-rules 2 and (3) of Rule 22 of the said Rules, as it stood then, it was required by the Commanding Officer to express his opinion. It was stated that the opinion has not been expressed. 12. It was contended by the appellants that in terms of sub-rules 2 and (3) of Rule 22 of the said Rules, as it stood then, it was required by the Commanding Officer to express his opinion. It was stated that the opinion has not been expressed. It was contended that no opinion in writing has been given. In other words, it was contended that the opinion required to be expressed was required to be reduced in writing. We do not accept such contention. Sub-rules (2) and (3) authorised the Commanding Officer either to dismiss the charge or to proceed in accordance with the provisions contained in clauses (a), (b), (c) and (d) of sub-rule (3) of Rule 22 of the said Rules. Dismissal of the charge or taking any step pursuant to any of the sub-clauses contained in clause (3) itself denotes expression of opinion which is the requirement of those sub-rules. It is true that at times, opinions are required to be reduced into writing but then such requirement would be a requirement of law when by reason of such opinion any person is likely to be affected. Apart from dismissing or rejecting the charge, the opinion of the Commanding Officer would entail things which have been provided in clauses (a), (b), (c) and (d) of sub-rule (3). None of them can at all affect the person against whom such opinion has been expressed, for, they will only advance the enquiry to reach its finality. 13. We, accordingly, do not accept that in the matter of expressing opinion either under sub-rule (2) or under sub-rule (3) of Rule 22 of the said Rules, Commanding Officer was at all required to reduce his opinion in writing apart from taking steps as had been contemplated in the said sub-rules, i.e., either to dismiss the charge or to direct taking of any of the steps contemplated in clauses (a), (b), (c) and (d) of sub-rule (3). 14. We, therefore, hold that there was neither any substantial defect in proceeding with the matter nor there was any defect in the substance of the matter, which was the basic feature of the challenge thrown in the writ petitions and repeated in the present appeals. 15. We have looked into the charges and we have found that the charges were not exactly identical against each one of them. 15. We have looked into the charges and we have found that the charges were not exactly identical against each one of them. It is true that the charges were of theft of materials but all of them were not charged for stealing the same material and the same quantity thereof. In the circumstances, it cannot be said that identical punishments should have been meted out to the appellants. It is true that while the appellants have been dismissed, they have been directed to undergo rigorous imprisonment, whereas the Major has been cashiered without being directed to undergo rigorous imprisonment. But then the most severe punishment contemplated in the Army, i.e., cashierment, has been awarded against the Major. In that sense too, it cannot be said that there has been discrimination in the matter of awarding punishment. 16. With effect from 6th September, 1992, Section 169-A has been added to the Army Act, 1950 whereby and under it has been provided that the period spent by a person sentenced in the civil or military custody during investigation, enquiry or trial of the same case and before the date of order of sentence shall be set off against the term of imprisonment imposed upon him. It was submitted that in the facts and circumstances of this case, at least this much should be done. Custody during investigation, enquiry or trial is separate specie from the sentence. They cannot be equated with each other and, accordingly, a person who was taken in custody cannot as of right ask for setting off the period so spent by him from the period of his sentence. The statute may, however, direct the same and the same has been directed in the instant case with effect from 6th September, 1992 by which time each of the appellants would have spent the term of the sentence as was awarded against them finally. In the circumstances, we are not in a position to direct setting off the period of custody with the period of sentence. 17. In the circumstances, we find practically no scope of interfering with the judgment and order under appeal. In the circumstances, we are not in a position to direct setting off the period of custody with the period of sentence. 17. In the circumstances, we find practically no scope of interfering with the judgment and order under appeal. However, on 8th August, 1989 when the Commanding Officer purportedly heard the charge under sub-rule (1) of Rule 22 of the said Rules, he purported to show that he heard prosecution witnesses, when, in fact, he did not hear them, but purported to make a representation to that effect naming, however, the accused persons as witnesses against them. We are, therefore, constrained to hold that the 8th August, 1989 hearing proceeding is a make belief thing. There was no impediment on the part of the Commanding Officer to switch to sub-rule (2) or sub-rule (3) of Rule 22 of the said Rules stage, relying upon the evidence recorded at the court of enquiry upon further recording that the same has been conducted after complying with the provisions contained in Rule 180 of the Act. 18. The Commanding Officer, who alone was entitled to take decision under sub-rule (2) or sub-rule (3) of rule 22 of the said rules, as it stood then, after complying with the prerequisites therefor, created a faux pas, but, at the same time, taking into account that undisputedly an enquiry was made where the charge was heard, we cannot hold that the entire subsequent proceedings stand vitiated. However, the opinion expressed by the Commanding Officer, as reflected on steps being taken under sub-rule (3) of rule 22 of the said rules, lead to imprisonment of the appellants. It is one thing to affect a civil right of continuing to serve, but it is another thing to affect the fundamental right of liberty of a citizen. If the procedure prescribed is not followed in the manner the same has been mandated to be followed, the right to liberty cannot be affected. 19. We would, therefore, interfere with the judgment and order under appeal by allowing the writ petition only to the extent the same challenged the award of sentence and, accordingly, we set aside the judgment and order under appeal only to that extent which has confirmed the order directing imprisonment of the appellants and simultaneously allow the writ petition to that extent by quashing the same. 20. 20. The learned Judge while rendering the judgment and order under appeal heavily placed reliance upon Union of India v. Maj. A. Hussain, reported in 1998 (1) SCC 537. We feel that the said judgment has no application in the instant case, inasmuch as it is no bodys case that the punishments as awarded are bad because of absence of evidence. It is true that in that case, there was an observation that it is unnecessary to examine if the pre-trial investigation was adequate or not but that was observed in relation to sufficiency of evidence and not in the context whether pre-trial investigation was not a compulsion.