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 Armed Wksp, is charged with : Using Criminal Force to his Superior Offer First charge Aa Section 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 Section 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 CCommanding-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, : 1988CriLJ158 . 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, thereforee, 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, : [1988]2SCR953 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 of the Act, the officers, viz.. Major Satvinder Singh and Naib Subedar K.N. Maurya were present during the proceedings. The proceedings further show that Capt. R.S. Dalal, who was nominated as friend of the accused on his (the petitioner) request, was also present. We may note here that the objection said to have been raised by the petitioner is not to his being tried by the Commanding Officer ; the objection was regarding the presence of Major Satvinder Singh and Naib Sub. K.N. Maurya, who have been termed by the petitioner in his representation as 'members' of the Court Martial. It appears from the record that the said objection was taken,in the representation made to the General Officer Commanding-in-Chief on 2nd April, 1988. It is pleaded by the counsel that the objection was taken before the Court also but it has not been recorded. In I representation, the objection is in the following words :
'FURTHERMORE the Court Martial proceedings held against the petitioner are without jurisdiction and in-competent,. The numbers of the Court; Martial, namely, Major Satvinder Singh 6006 Indep Armed Workshop and Nb. Slife. K..N. Maurya 6006 Indep Armed Workshop were not competent more particularly when the petitioner had previous enemity with Major Satvinder Singh. The petitioner pointed out this but it has not at all been considered and rather ignored.'
(8) The submission of the counsel regarding the objection having been ignored, is completely untenable. Section 116 of the Army Act makes it abundantly clear that in a Summary Court Martial, the Commanding Officer alone is to constitute the Court. There are no other members of that Court. The proceedings of course are to be 'attended throughout by two other per- sons who shall be officers or junior commissioned officers or one of either, and who shall, not as such, be sworn or affirmed.'
(9) In our view there cannot be any objection by the accused to the presence of the officers who are detailed to attend the proceedings. They are definitely not members as the petitioner has termed them in his representation. The ratio of Vidhya Prakash's case at any rate is not applicable as the Supreme Court has clearly laid down that provisions of Section 130 of the Army Act are not applicable to the Summary Court Martial.
(10) Another plea urged by Mr. Wadhwa was that the Evidence Act has not been followed at all in the Summary Court Martial and, thereforee, the conviction as well as the sentence awarded by it are vitiated. The argument that the petitioner, who it is alleged, was drunk at the time he hit his senior officer, was not medically examined. The further argument is that the senior officer who had been given beating, was also not medically examined. In our view this plea is also untenable.
(11) With the assistance of. the counsel, we have gone through the evidence recorded in the Summary Court Martial. The petitioner chose not to cross examine the eye-witnesses although he did put some questions to Nb Subedar D.P. Singh, the senior officer concerned who had been attacked. The three questions put in cross-examination by the accused are as follows:
'Q.1(By the accused to the witness). You said that I caused injury to your left hand by hitting with the cranking handle. Is there any medical certificate in support of this injury. A.1 (By the witness). The injury was minor and so I did not report to the Mi room. But the injury was seen by Cfn Mandal and L/Nk Ram Kumar who were in the vehicle. It was also seen by Ja, Sub. Katoch, when I returned to the unit. Q.2 You said I was drunk. If I was drunk, how was it not detected at the Icp by the Cmp, where I entered the details of the veh. in the register. A.2 The Cmp personnel, due to the distance between you and them due to the table in between, may not have sensed that you have taken liquor. Or may be they sensed, but decided to ignore it. Q.3 How could I have driven the veh. if I was drunk. A.3 You were driving the vehicle very fast without any control and the veh. kept moving from the left to right of the road in a zig zag manner. The cyclist and the motor cyclist had to completely go off the road into the fields to save themselves from being hit. At one point you were driving the vehicle with one hand, while holding a bottle with the other and drinking from it. Cross-examination of the witness by the accused concluded. Provisions of Army Rule 141 (2), (3) and (4) have been complied with.'
FROM the above, the pleas sought to be raised are two-fold, (1) that the provisions of the Army Act have not been complied with and (2) that the findings of the Summary Court Martial are vitiated because in fact it was the case of no evidence. In our view the evidence led by the prosecution clearly establishes the guilt of the petitioner. The questions suggested do not show that the petitioner was challenging the facts, as alleged. His case seems to be that since no medical certificate in support of the injury had been produced, the victim Nb Subedar D.P. Singh ought not to be believed. The further argument that the charge of being drunk while on duty has also not been substantiated as the accused was not medically examined, is also to be rejected. In any case we cannot be asked to convert ourselves into a court of appeal.
(12) There is no force in this petition. It is dismissed.