Charanjit Talwar, J.

( 1 ) BY this petition, the petitioner Ram Nath who was at the relevant time a Lans Naik in the Indian Army, challenges his conviction by a Summary Court Martial held on 2nd March, 1988. By the order of the same date, the petitioner was sentenced as follows :

" (A) To suffer rigorous imprisonment for twelve months. I direct that the sentence of rigorous imprisonment shall be carried out by confinement in Civil Jail. The accused is recommended Division C or III while undergoing sentence in civil prison. If there are only two divisions of prisoners, the accused is recommended Division B or II. (b) To be dismissed from service. "

( 2 ) THE Summary Court Martial was held by the Commanding Officer of the petitioner. Col. M. C. Sebastinl. The petitioner was tried for offences under Sections 40 (a) and 48 of the Army Act. The Charge Sheet dated the 25th February, 1988 reads as follows :

"the accused No. 14530746k SKP (L/nk) DVR (MT) RAM NATH, 6006 Indep Armd Wksp, is charged with : Using Criminal Force to his Superior Offer First charge AA Sec. in that he, 40 (a) at Fd on 16 Jan 88 at 1500 h struck with a cranking handle JC-14520f Nb/sub DP Singh of the same unit causing injury to him on the left hand. Second INTOXICATION charge AA Sec. in that he, 48 at Fd. at 1500 h on 16 Jan 88 while on duty was found intoxicated. "

( 3 ) THE petitioner challenged his conviction and sentence by filing a petition under Section 164 of the Army Act to the General Officer Commanding- in-Chief, Western Command, Chandi Mandir. This representation dated the 2nd April, 1988 was dismissed on 17th July, 1988. The present petition was filed on 19th May, 1988. In our order of 20th May, 1988 we had noticed that the representation made by the petitioner was yet to be disposed of. It was during the pendency of the petition after issuance of rule nisi that we were informed about the representation having been rejected by the competent authority.

( 4 ) THEREAFTER the petitioner filed the amended petition wherein he has also challenged the order passed by the General Officer Commading-in- Chief, Western Command.

( 5 ) THE first plea of the petitioner that provisions of Section 130 of the Army Act have not been complied with is based on a judgment of the Supreme Court in Ranjit Thakur v. Union of India, AIR 1987 SC 2386. During the course of final arguments, we were informed by Mr. Watwani, learned counsel for the respondents that the said judgment has since been reviewed by their Lordships Vide order dated the 10th August, 1988. It has now been held that the provisions of Section 130 of the Army Act are not applicable to the Summary Court Martial. It is, therefore, not incumbent on the officer holding that Court Martial to ask the accused whether he objects to being tried by the Commanding Officer who alone constitutes the Summary Court Martial.

( 6 ) MR. Jugal Wadhwa, learned counsel for the petitioner submits that the Supreme Court in Vidhya Prakash v. Union of India, AIR 1988 SC 705 has by implication upheld the principle that it is open to the accused to raise such an objection regarding his being tried by his Commanding Officer. The plea is that in the present case the petitioner having raised such an objection, the Commanding Officer was expected not to have tried the accused. In our view the submission is entirely mis-conceived. As has been noticed in Vidhya Prakash s case (supra), proceedings of a Summary Court Martial are to be governed under Section 116 of the Army Act. After the review of Ranjit Thakur s case, it is no longer open to read the rule laid in Section 130 of the Act to Summary Court Martials. Thus the Commanding Officer holding the Summary Court Martial is not to ask the accused whether he has any objection for being tried by him (the Commanding Officer ).

( 7 ) IN the present case the Summary Court Martial admittedly was held by the petitioner s Commanding Officer. Col. M. C. Sebastin. As per the requirements of Section 116

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