Ex Lance Naik Krishan Kumar Vs. Union of India (Uoi) Through Secretary Ministry of Defence, - Court Judgment

J.S. Khehar, C.J.

1. The appellant-Ex Lance Naik Krishan Kumar was inducted into the service of the Army, when he was only 21 years old as a Cook in the Corps of Engineers on 24.07.1997. During 2004-2005 he was posted with 60 Engineer Regiment, at Tezpur. Through a confidential communication dated 19.02.2005, he was informed that he was to be tried by a summary court- martial on 23.02.2005. The three charges levelled against him, on the basis whereof he was to be tried, were appended to the aforesaid communication dated 19.02.2005. In the first charge it was alleged, that he had during the night intervening 04.02.2005 and 05.02.2005 at 00.30 hours scaled the balcony of the first floor of house No. 14/2 Chandpur Enclave, Tezpur, belonging to Major Anuj Bhatnagar, of 118 Field Organization, with a help of a ladder. It was alleged that he had done so with the intent of committing the offence of rape on Mrs. Shikha Bhatnagar, wife of the aforesaid Major Anuj Bhatnagar. On the basis of the aforesaid factual position, it was asserted that he had committed the offence of house breaking by night, in order to commit an offence punishable with imprisonment under the Indian Penal Code. Under the second charge it was asserted, that at about 02.30 hours during in the night intervening 04.02.2005 and 05.02.2005, he had again scaled the balcony of the first floor of house No. 14/2 Chandpur Enclave, Tezpur belonging to Major Anuj Bhatnagar of 118 Field Organisation, with the help of a ladder, with the intent of committing the offence of rape on Mrs. Shikha Bhatnagar wife of the aforesaid Major Anuj Bhatnagar. As such, it was alleged that he had committed the offence of house breaking by night in order to commit an offence punishable with imprisonment under the Indian Penal Code. In the third charge it was alleged, that he had absented himself without leave from 60 Engineer Regiment from 07.02.2005 till 14.02.2005, and as such, he was guilty of absence from duty without leave.

2. During his trial by the summary court-martial, the appellant admitted his guilt. He also declined any kind of assistance/help. The appellant also declined to summon any witnesses during the course of the summary court-martial. On the conclusion of the summary court-martial, the appellant was dismissed from service by the Commanding Officer, 10 Engineer Regiment by an order dated 23.02.2005.

3. Inspite of the fact that the appellant had confessed his guilt during the course of the summary court-martial, and although he did not even choose to call any witness during his trial, he assailed the order dated 23.02.2005, whereby he had been dismissed from service, by approaching this Court by filing Writ Petition (S/S) No. 135 of 2006. During the course of hearing of the aforesaid writ petition, it was not the case of the appellant, that he had not confessed his guilt before the summary court-martial, or that, the procedure for holding summary court-martial was not adhered to, or that, he was not offered a due and fair opportunity to defend himself. The solitary contention advanced on behalf of the petitioner before the learned Single Judge was, that in the course of his employment with the 60 Engineer Regiment, during which the delinquency alleged against him was also committed. Therefore, the Commanding Officer, 60 Engineer Regiment alone, could have initiated proceedings of a summary court-martial against him. As against the aforesaid, it is pointed out that the Commanding Officer, 10 Engineer Regiment (i.e. a regiment separate and distinct to the appellant's regiment) had initiated and tried the appellant. The trial of the appellant initiated at the hands of the Commanding Officer, 10 Engineer Regiment, according to the learned Counsel for the appellant, was totally without jurisdiction, as the same was in clear violation of Sections 116 and 120 of the Army Act, 1950.

4. By an order dated 15.12.2006, Writ Petition (S/S) No. 135 of 2006 was disposed of by holding that the summary court-martial proceeding initiated and conducted at the behest of the Commanding Officer, 10 Engineer Regiment, against the appellant, was in consonance with law. In view of the aforesaid conclusion, the writ petition filed by the appellant was dismissed.

5. Dissatisfied with the order passed by the learned Single Judge on 15.12.2006, dismissing Writ Petition (S/S) No. 135 of 2006, the appellant has again approached this Court through the instant Special Appeal. During the course of hearing of the instant special appeal, yet again, the appellant has canvassed only one issue, namely, that the summary court-martial initiated at the hands of the Commanding Officer, 10 Engineer Regiment was without jurisdiction, and as such, is liable to be set aside. We shall, therefore, consider the aforesaid solitary contention advanced by the learned Counsel for the appellant.

6. During the course of the hearing of the instant appeal, learned Counsel for the appellant, desired in the first instance to establish, that there was no occasion for the appellant to protest the action of the Commanding Officer, 10 Engineer Regiment, in initiating the holding of a summary court- martial against the appellant. In this behalf our pointed attention was drawn to Section 130 of the Army Act, 1950. Section 130 of the aforesaid is being extracted hereunder:

130. Challenges.- (1) At al trials by general, district or summary general court-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court.

(2) If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded and the remaining officers of the court shall, in the absence of the challenged officer decide on the objection.

(3) If the objection is allowed by one-half or more of the votes of the officers entitled to vote, the objection shall be allowed, and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer subject to the same right of the accused to object.

(4) When no challenge is made, or when challenge has been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the court shall proceed with the trial.

7. It is pointed out from Section 130(1) of the Army Act, 1950, that during the course of the trial of a general court-martial, a district court- martial, and a summary general court-martial, an accused has to be called upon and asked whether he has any objection to being tried by the convened court. According to learned Counsel, no such option is available under Section 130(1) of the Army Act, 12950 in the case of a summary court- martial. Accordingly, it is submitted that no opportunity was available to the appellant to protest the convening and holding of a summary court-martial at the instance of the Commanding Officer, 10 Engineer Regiment. Based on the instant submission, it is the vehement contention of the learned Counsel for the appellant, that before this Court (during the course of hearing of Writ Petition (S/S) No. 135 of 2006) for the first time an opportunity became available to the appellant to protest against the convening and holding of the summary court-martial proceedings by the Commanding Officer, 10 Engineer Regiment.

8. Although the submission advanced by the learned Counsel for the appellant, in our view, would not have a bearing on the solitary issue raised in the instant appeal, yet since the instant submission has been advanced, it is necessary for us to record a finding thereon. Having given our thoughtful consideration to the submission advanced by the learned Counsel for the appellant, it is not possible for us to hold that the aforesaid provision affords an opportunity to any one subjected to any form of court-martial to contest the jurisdictional authority of the convening /holding of a court- martial. The catchwords, which relate to the query which an accused is posed at the commencement/assembly of the court-martial contained in Section 130 of the Army Act, 1950, are '...whether he objects to being tried by any officer sitting on the court.' The response sought from an accused, under Sub-section (1) of Section 130 of the Army Act, 1950, in our considered view, is not about the jurisdictional authority of the convened court-martial, but about the acceptability of an officer sitting on the said court, for trial. This conclusion of ours also stands affirmed by the words used in Sub-section (2) of Section 130 of the Army Act, 1950. 'If the accused objects to any such officer...', then his objection will be considered by the remaining officers of the court (i.e., by all others excluding the officer(s) against whom the accused has raised an objection). It is, therefore, apparent from Sub-section (2) of Section 130 of the Army Act, 1950, that the objection permissible under Sub-section (2) of Section 130 of the Army Act, 1950 pertains, not to the jurisdictional authority of the court-martial under reference, but the presence of a particular officer (as a part of the court convened) for holding such court-martial proceedings. Yet again, the same conclusion emerges from Sub-section (3) of Section 130 of the Army Act, 1950, which postulates, that if the objection raised by the accused is upheld, then such member (against whose participation an objection was raised) shall not remain a part of the court for holding the court-martial. This is apparent from the words '...and the member objected to shall retire...' It is, therefore, not possible for us to accept the contention advanced by the learned Counsel for the appellant, on the basis of Section 130 of the Army Act, 1950, that an opportunity is available to the accused in some types of court-martial proceedings (other than summary court-martial) to assail the jurisdictional authority of the convened court- martial proceedings.

9. Despite our conclusion hereinabove, we have allowed learned Counsel for the appellant to press his plea that the Commanding Officer, 10 Engineer Regiment, had no authority to convene the holding the summary court-martial against the appellant. In so far as the instant plea is concerned, learned Counsel for the appellant, in the first instance drew our attention to Sections 108, 109, 110 and 112 to 115 of the Army Act, 1950. Since they do not have a bearing on the sole contention advanced by the learned Counsel for the appellant, we have refrained from extracting the same. Be that as it may, it may be relevant to mention Section 108 of the Army Act, 1950 postulates four kinds of courts-martial, namely, general courts-martial, district courts-martial, summary general courts-martial and summary courts- martial. Sections 109, 110 and 112 of the Army Act, 1950 stipulate the power and authority to convene a general court-martial, a district court- martial and a summary general court-martial respectively. Sections 113, 114 and 115 of the Army Act, 1950 delineate the composition of general court- martials, district court-martials, and summary general court-martials respectively. In so far as the present controversy is concerned, a summary court-martial was held against the appellant. Section 116 of the Army Act, 1950 deals with summary court-martial. Section 116 aforesaid is being extracted hereunder:

116. Summary court-martial.- (1) A summary court- martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court.

(2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed.

10. Referring to Section 116 of the Army Act, 1950, it is the contention of the learned Counsel for the appellant, that a summary court- martial can only be held by a commanding officer to whose corps /department/detachment the concerned accused belongs. It is submitted that the term 'commanding officer' has been defined in Section 3 (v) of the Army Act, 1950. Section 3 (v) of the Army Act, 1950 is being reproduced hereunder:

3. Definitions.- In this Act, unless the context otherwise requires,- ....

(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 Army, or in the absence of any such regulations, by the custom of the service, to discharge with respect to that portion of the regular Army or that department, as the case may be, the functions of a commanding officer in regard to matters of the description referred to in that provision;

It is clear that the word 'commanding officer', according to learned counsel, is referable to an officer '...with respect to a specified separate portion of the regular Army or a specified and separate department...' It is, therefore, asserted at the hands of the learned Counsel for the appellant, that whenever the word 'commanding officer' finds mention under any of the provisions of the Army Act, 1950, the same should be read, as referable to a specified portion of the regular Army or a specified portion of a department. Read in the aforesaid manner, according to the learned Counsel for the appellant, the word 'commanding officer' used in Section 116 of the Army Act, 1950 would lead to the conclusion that a summary court-martial has to be held by the commanding officer of the particular corps/department/detachment of the regular Army, to which the accused belongs.

11. It is further pointed out that only such commanding officer of the corps/department/detachment, to which the appellant belongs and wherein the appellant was posted, could constitute the holding of a summary court-martial proceeding. In so far as the present controversy is concerned, it is the vehement contention of the learned Counsel for the appellant, that the appellant belonged to, and was posted in the 60 Engineer Regiment, and as such, only the Commanding Officer, 60 Engineer Regiment could have convened the holding of a summary court-martial. According to the learned Counsel for the appellant, it is not disputed that the appellant belonged to and was posted in the 60 Engineer Regiment, and further that, the alleged delinquency committed by the appellant, had also been allegedly committed while he was posted in the 60 Engineer Regiment. It is, however; pointed out that the Commanding Officer, 10 Engineer Regiment had ordered the holding of the summary court-martial .Additionally, the Commanding Officer, 10 Engineer Regiment, had also constituted the court for holding the summary court-martial against the appellant. According to the learned Counsel for the appellant, the Commanding Officer, 10 Engineer Regiment has no jurisdictional authority, to order the convening or holding of a summary court-martial proceeding, against the appellant.

12. For the same reason and to draw the same conclusion, learned Counsel for the appellant invited our attention to Section 3 (v) i.e., to the definition of the term 'corps' expressed therein. Section 3 (vi) of the Army Act, 1950 is being reproduced hereunder:- '3. Definitions.- In this Act, unless the context otherwise requires,- ....

3. Definitions.- In this Act, unless the context otherwise requires,- ....

(vi) 'Corps' means any separate body of persons subject to this Act, which is prescribed as a corps for the purposes of all or any of the provisions of this Act;

To illustrate the matter further, learned Counsel also referred to Rule 187 of the Army Rules, 1954. Rule 187 aforesaid also being extracted hereunder:

187. 'Corps' prescribed under Section 3 (vi).-(1) Each of the following separate bodies of persons subject to the Act shall be a 'corps' for the purposes of Chapter III and Section 43(a) of the said Act and of Chapter II and III of these rules, except Rule 13, namely:

(a) President's Body Guard.

(b) The Armoured Corps, Horsed Cavalry Regiments, including Training Centres and non-combatants.

(c) The Regiment of Artillery.

(d) The corps of Engineers including non-combatants.

(e) The Corps of Signals including non-combatants.

(f) Each regiment or each ungrouped Battalion (as the case may be) of Infantry, or, in the case of grouped Gorkha Regiments, each group of Infantry including non-combatants.

(g) Each parachute battalion.

(h) The Army Service Corps (including postal).

(i) The Remount, Veterinary and Farms Corps.

(j) The Army Medical Corps.

(k) The Army Dental Corps.

(l) The Army Ordnance Corps.

(m) The Corps of Electrical and Mechanical Engineers.

(n) The Technical Development Establishments.

(o) The Intelligence Corps.

(p) The Corps of Military Police.

(q) The Pioneer Corps.

(r) The Defence Security Corps.

(s) The Army Education Corps.

(t) The Army Physical Training Corps.

(u) The General Service Corps.

(v) The Frontier Defence Corps.

(w) Each Boys Battalion.

(x) Gorkha Boys Company.

(y) Any other separate body of persons subject to the Act, employed on any service and NOT attached to any of the above corps or to any department.

(2) Every unit in which a court-martial book is maintained shall be a 'corps' for the purposes of Section 106 and Rule 183.

(3) For the purposes of every other provision of the said Act and of these rules each of the following separate bodies shall be 'corps':

(a) Every battalion.

(b) Every company which does NOT form part of battalion.

(c) Every regiment of cavalry, armoured corps or artillery.

(d) Every squadron or battery which does NOT form part of regiment of cavalry, armoured corps or artillery.

(e) Every school of instruction, training centre, or regimental centre.

(f) Every other separate unit composed wholly or partly of persons subject to the Act.

Based on the definition of the term 'corps', it is the contention of the learned Counsel for the appellant, that where the word 'corps' is used under the provisions of Army Act, 1950, in reference to a specific separate body of persons, illustratively expressed in Rule 187 of the Army Rules, 1954. It is, therefore, the contention of the learned Counsel for the appellant, that the word 'corps' occurring in Rule 187 of the Army Rules, 1954 must be construed in conjunction with the word 'commanding officer'. The two terms read together, according to the learned Counsel for the appellant, would lead to the irresistible inference that the initiation and holding of a summary court-martial under Section 116 of the Army Act, 1950 is referable to the commanding officer of the corps/department/detachment, to which the accused belongs.

13. Learned Counsel for the appellant then invited our attention to Sections 118, 119 and 120 of the Army Act, 1950.Sections 118 and 119 aforementioned relate to the powers of general and summary general court- martials, and Section 119 delineates the powers of a district court-martial. The relevance of the present controversy is only to Section 120 of the Army Act, 1950, which defines the powers of a summary court-martial. Section 120 of the Army Act, 1950 is being extracted hereunder:

120.- Powers of summary courts-martial.- (1) Subject to the provisions of Sub-section (2), a summary court-martial may try any offence punishable under this Act.

(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender, an officer holding a summary court-martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69, or any offence against the officer holding the court. (3) A summary court-martial may try any person subject to this Act and under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer.

(4) A summary court-martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in Sub-section (5).

(5) The limit referred to in Sub-section (4) shall be one year if the officer holding the summary court-martial is of the rank of lieutenant-colonel and upwards, and three months, if such officer is below that rank.

14. While referring to Section 120, learned Counsel, pointedly drew our attention to Sub-section (3) of Section 120 of the Army Act, 1950, wherein it has been expressly provided, that a summary court-martial may try any person under the command of the officer holding the court. It is the submission of the learned Counsel for the appellant that the words ' ...under the command of the officer holding the court...' would also lead to the same conclusion, namely, that a summary court-martial can only be convened and held by the commanding officer of the corps /department /detachment, to which the accused belongs.

15. Learned Counsel for the appellant then invited our attention to note (5) under Section 120 from the Manual of Military Law, to demonstrate that, his submission was in consonance with the guide lines recorded under the relevant provisions, so as to truly and faithfully depict the legislative intent thereof. Note (5) under Section 120 aforesaid is being extracted hereunder:

5. A NCO or a sepoy cannot be attached to another unit for the purpose of his trial by SCM except as provided Regs Army para 381.

For demonstrating the value and effects of the notes recorded under a particular statutory provision, learned Counsel for the appellant relied on two judgment rendered by the Apex Court, S.C. Sareen v. Union of India : A.I.R. 1976, SC, 1686 and Union of India and Anr. v. Charanjit S. Gill, : JT 2000(5) SC 135. Based on the aforesaid note and the interpretational value thereof, it was contended that there could be no escape from the conclusion that the summary court-martial proceedings could have been initiated, in so far as the present controversy is concerned, by the Commanding Officer, 60 Engineer Regiment. Since the same had been held by the Commanding Officer, 10 Engineer Regiment, it is liable to be concluded, that the same were held without jurisdiction and authority of law.

16. In order to authenticate the submission advanced by the learned Counsel for the appellant on the basis of note (5) under Section 120 of the Army Act, 1950, learned Counsel for the appellant has placed reliance on the judgment rendered by a learned Single Judge of the Delhi High Court in Mahipal Singh v. Union of India, 1994 (8) Services Law Reporter 434. In the aforesaid judgment, the court inter alia concluded as under:

9. I have, therefore, no hesitation in holding that the Summary Court-Martial as conducted by CO of an outside Unit to which the petitioner did not belong and, therefore, had no jurisdiction to proceed in the matter and the trial is, accordingly, vitiated. Note 5 as appended to Section 120 further reiterates that a NCO or a Sepoy cannot be attached to another unit for the purpose of trial by SCM except as a provided in Army Regulations, para 381.

17. In order to repudiate the contention advanced by the learned Counsel for the appellant, few facts have been brought to our notice by the learned Counsel for the respondents. Firstly, vide a communication dated 17.02.2005 under the provision of AO 7/2000 as amended vide AO 5/2003/DV the appellant belonging to 60 Engineer Regiment was attached to 10 Engineer Regiment, for purposes of discipline. Since the appellant was attached to 10 Engineer Regiment before being subjected to disciplinary proceeding vide communication dated 19.02.2005 (for being tried by summary court-martial), at the relevant time, the relevant commanding officer for convening and holding of the summary court- martial was the Commanding Officer, 10 Engineer Regiment. Secondly, that note (5) under Section 120 of the Army Act, 1950 was deleted vide Govt. of India, Ministry of Defence Letter No. B /80328/JAG/1965/2001/D (AG), dated 28.08.2001. As such, it is submitted that reference made to the aforesaid note, as also, to the judgment rendered in Mahipal Singh's case (supra), by the learned Counsel for the appellant in so far as the present controversy is concerned is ill conceived. Thirdly, it is submitted that for the purposes of determining the jurisdictional authority, in the present controversy, it is only relevant to advert to the Section 116 of the Army Act, 1950 and to no other provision. It is pointed out that Section 116 of the Army Act, 1950 does not place any such embargo, as has been suggested by the learned Counsel for the appellant, that summary court-martial proceedings can only be initiated and held at the directions of the commanding officer of the corps/department/detachment, to which an accused belongs.

18. We have given our thoughtful consideration to the contentions advanced by the learned Counsel for the rival parties. The submission advanced at the hands of the learned Counsel for the appellant, on the basis of note (5) under Section 120 of the Army Act, 1950 deserves to be rejected outright, on account of the fact, that the note in question was deleted in 2001, whereas summary proceedings against the appellant commenced only in 2005. Since the judgment rendered in Mahipal Singh's case (supra) took into consideration note (5) under Section 120 of the Army Act, 195, while recording its conclusions, the same would also not be relevant in so far as the present controversy is concerned. The earlier intent of the rule making authority, sought to be expressed through note (5) under Section 120 of the Army Act, 1950 must be deemed to have been revoked with the deletion thereof by the Government of India, Ministry of Defence with effect from 28.08.2001. It would, therefore, not be wrongful to infer that the earlier intention that the summary court-martial proceedings should be initiated and held by the corps/department/detachment, to which an accused belonged, was sought to be changed so as to extend the authority for initiation and holding of summary court-martial proceedings to commanding officers, other than the commanding officer of the corps /department/ detachment, to which an accused belonged.

19. The determination of the present controversy must, therefore, be examined in the back ground of the mandate of Section 116 of the Army Act, 1959, as also the other submissions made in reference thereto, at the hands of the learned Counsel for the appellant (based on Clauses (v) and (vi) of Section 3 of the Army Act, 1950).

20. In examining the mandate of Section 116 in so far as the instant controversy is concerned, the words expressly requiring our interpretation are '...may be held by the commanding officer of any corps, department or detachment of the regular Army...'. It is the contention of the learned Counsel for the appellant, that the word commanding officer (in the extract of Section 116 reproduced hereinabove) is relatable to only such commanding officer of the corps/department/detachment, to which an accused belongs, and that, no other commanding officer besides the commanding officer of the corps/department/detachment, to which the accused belongs is of any relevance. The submission at the hands of the learned Counsel for the respondents, is however to the contrary, namely, that the commanding officer of 'any' corps/department/detachment can order the holding of a summary court-martial against an accused. In order to contest the aforesaid submission, it is the contention of the learned Counsel for the appellant, that the aforesaid word 'any' pales into insignificance in view of the definition of the terms 'commanding officer' and 'corps' recorded under Sections 3 (v) and (vi) respectively. It is the contention of the learned Counsel for the respondents, on the other hand, that the definition of the aforesaid terms in Section 3 of the Army Act, 1950 would be subservient of the statutory provision under reference.

21. Having considered the rival contentions of the learned Counsel for the parties, we are satisfied that the final outcome of the present controversy will depend on thee interpretation of Section 115 of the Army Act, 1950. We are also satisfied that the definition of the terms 'commanding officer' as also 'corps' by Section 3 (v) and (vi) respectively would not be relevant, if they run contrary to the mandate of Section 116. It is apparent from opening words of Section 3 which explicitly mentioned that the terms defined therein would have the meaning assigned to them in Section 3 '...unless the context otherwise requires...' In our considered view, the word 'any' leads to an inference contrary to the one suggested by the learned Counsel for the appellant on the basis of the definitions of the words 'commanding officer' and 'corps' in Section 3 (v) and (vi) respectively. The definition clause, according to the learned Counsel for the appellant suggests that a particular commanding officer of a particular corps only, can initiate the holding of a summary court-martial. If it has to be a particular commanding officer, then it can only be the one, commanding the core to which the accused belongs. This submission of the learned Counsel for the appellant does not appeal to us, because the word 'any' (preceding the word 'core' in the provision under reference) suggests a position totally contrary to the aforesaid. In view of the opening words '...unless the context otherwise requires' contained in Section 3, it would not be possible to read the definition of the terms 'commanding officer' and 'corps' to mean a particular commanding officer of a particular corps. This would change the meaning assigned to the aforesaid words with the intervening words 'any', in the context in which they have been used in Section 116 of the Army Act, 1950. It is, therefore, not possible for us to accept the contention of the learned Counsel for the appellant, that the summary court-martial proceedings against the appellant/accused could only be held by the commanding officer of the corps/ department / detachment, to which the accused belongs.

22. After the deletion of note (5) under Section 120 of the Army Act, 1950, there is no statutory provision or order under which a summary court-martial proceeding is required to be held by the commanding officer of the corps /department/detachment, to which the accused belongs. During the course of hearing we enquired from the learned Counsel for the appellant (after having applied our minds to the provisions relied upon by him) to show us the specific provision, which mandates that the proceedings of a summary court-martial should be initiated by the commanding officer of the corps /department/detachment, to which the accused belongs. He could not invite our attention to any provision, other than those referred to hereinabove. It cannot be over looked that the appellant was factually attached to 10 Engineer Regiment by an order dated 17.02.2005 under the provision of AO 7/2000 as amended vide AO 5/2003/DV 'for purposes of discipline'. Since the appellant was attached to 10 Engineer Regiment for purposes of discipline, obviously the Commanding Officer, 10 Engineer Regiment had the power and authority to initiate and hold a summary court-martial against him. This action at the hands of the Commanding Officer, 10 Engineer Regiment, would squarely fall within the authority vested in him under Section 116 of the Army Act, 1950. We are, therefore, satisfied that the Commanding Officer, 10 Engineer Regiment, who had ordered the initiation and holding of the summary court-martial against the appellant, had the jurisdiction to do so.

23. For the reasons recorded hereinabove, we find no merit in this appeal. The instant appeal is, accordingly, dismissed. In the aforesaid view of the matter, we hereby affirm the finding recorded by the learned Single Judge.