JUDGMENT

R.M. Lodha, J.-This appeal raises the question of the competence of the commanding officer of the accused, who signed and issued the charge sheet, to convene and conduct the summary court-martial against that very accused.

2. The above question arises in this way. The respondent, Dinesh Prasad, joined the 11th Assam Rifles as washerman/rifleman in 1995. For the period between 26.07.1998 and 11.10.2000 (FN), he absented himself from unit unauthorisedly while in active service. On 03.08.2001, Col. A.S. Sehrawat, Commandant, under his signature served a charge sheet under Section 39(a) of the Army Act, 1950 (for short, ‘Army Act’) on the respondent for the absence without leave for 808 days. The Commandant constituted summary court- martial to try the respondent for the above charge. The respondent pleaded guilty to the charge before the summary court-martial. The summary court- martial, after taking into consideration the facts and circumstances of the case, passed an order on 04.08.2001 dismissing the respondent from service. The Reviewing Officer has confirmed the punishment of dismissal from the service awarded to the respondent.

3. The respondent challenged the punishme