IMPORTANT POINT
District, General and summary court-martial - distinction.

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 punishment awarded to him by the summary court-martial in a writ petition before the Gauhati High Court. The respondent (petitioner therein) explained in the writ petition the reason for his absence. According to him, he lost his mental balance while in service and was suffering from mental depression. At the time of arguments before the Single Judge, it was submitted on his behalf that the very Commandant of the Battalion, who signed and issued the charge sheet to him, convened and presided over the summary court-martial and on conclusion of which the punishment of dismissal from service was imposed which vitiated the court-martial proceedings as he was denied a fair trial.

4. The learned Single Judge held that while issuing a charge sheet the Commandant tentatively made up his mind that there was some material against the delinquent and accordingly, after having issued charge sheet, Col. A.S. Sehrawat, who was Commandant of the Battalion, ought not to have convened the court-martial and in any event ought not to have conducted the proceedings of the court- martial leading to the punishment of dismissal from the service. The Single Judge held that in the facts of the case, the proceedings of the summary court-martial held against the delinquent were vitiated on account of likelihood of bias. By the judgment and order dated 07.09.2006, the Single Judge allowed the writ petition and set aside the respondent’s dismissal from service. It was observed, however, that it would be open for the concerned authority to proceed in the matter afresh in accordance with law, if it so desired.

5. Being not satisfied with the judgment and order dated 07.09.2006, the present appellants preferred writ appeal. The Division Bench of the Gauhati High Court found that under Section 116 of the Army Act, the summary court-martial proceedings could be held by the commanding officer of any corps, department or detachment of the regular Army and it need not necessarily be the commanding officer of the Battalion in which the accused was serving. The Division Bench thus in its order of 28.08.2008 was of the view that there was no justification to interfere with the view taken and the conclusion reached by the Single Judge in the impugned judgment. It is from this order that the present appeal by special leave has arisen.

6. It is necessary to refer to the relevant statutory provisions in the Army Act and the Army Rules, 1954 (for short, ‘Army Rules’) for consideration of the question raised before us. Section 3(v) defines ‘commanding officer’ as under:

“S.3(v)- "commanding officer", when used in any provision of this Act, with reference to any separate portion of the regular army or to any department thereof, means the officer whose duty it is under the regulations of the regular Arm