MANUAL OF MILITARY LAW

PART I
CHAPTER I
INDIAN MILITARY LAW—ITS ORIGIN AND EXTENT
(i) Introductory

1.Origin of the Indian Army. —The Indian Army sprang from very small beginnings.
Guards were enrolled for the protection of the factories or trading posts which were
established by the Honourable East India Company at Surat. Masulipatam, Armagon,
Madras, Hooghly and Balasore in the first half of the seventeenth century. These guards
were at first intended to add to the dignity of the Chief Officials as much as for a
defensive purpose, and in some cases special restrictions were even placed by treaty
on their strength, so as to prevent their acquiring any military importance. Gradually,
however, the organization of these guards was improved and from them sprang the
Honourable East India Company's European and Indian troops. Both these steadily
increased in numbers, until in 1857, it numbered (including local forces and contingents,
and a body of 38,000 military police) no less than 3,11,038 officers and men, (Imperial
Gazetter of India, 1907, Vol IV (Ch, XI).

2.E.I.,Company's Mutiny Act.—Statutory provision was first made for the discipline of
the Honorable East India Company's troops by an Act (27 Geo II, Cap 9) passed in
1754 for "punishing Mutiny and Desertion of officers and soldiers in the service of the
United Company of Merchants of England trading to the East Indies,and for the
punishment of offences committed in the East Indies, or at the Island of Saint Helena".
Section 8 of this Act empowered the Crown to make Articles of War for the government
of these troops, and such articles were accordingly made and published. The terms of
the Act were wide enough to cover both European and Indian troops, but the language
of the articles themselves showed that they were originally intended for Europeans only.
In the absence of any other code, however, the Government of Bengal, Madras, and
Bombay seem to have applied these articles, with such modification and omissions as
appeared necessary, to the bodies of Indian troops maintained by them, of which the
present Indian Army is the descendant. In 1813, owing to doubts having arisen as to the
legal validity of the existing arrangements for the discipline of the Indian troops,
provisions were inserted in the Act (53 Geo III, Cap 155 ss 96 and 97) which was
passed in that year to extend the company's privileges for a further term, which
legalised the existing system and gave power to each of the Governments of Fort
William, Fort Saint George and Bombay to make, laws, regulations, and Articles of War
for the government of all Indian officers and soldiers in their respective services. It was
further provided in 1824 (4 Geo IV, Cap 81,s 63), that such legislation should apply to
the Indian troops of each presidency, wherever serving, and whether within or beyond
His Majesty's dominions.
CHAPTER II
OUTLINE OF THE ARMY ACT

1.Scheme of chapter. —This Chapter is intended to give a general account of the AA

and to show its scope and purpose. Certain explanations of a general character, which
would be out of place in the notes to particular sections are also contained in it. For a
detailed explanation of the AA reference should however be made to these notes.
2.Subjection to Army Act. —Chapters I and II of the AA are concerned with application
of military law and the definition of terms used in the said Act. Persons subject to the AA
under clauses (a) to (g) of s.2(1) remain so subject until retired, discharged, released,
removed, dismissed or cashiered from the service, those subject under clause (i)
thereof remain subject only so long as the conditions contemplated therein continue.
The effect of a notification issued under AA.s.6 is that those who rank as officers, junior
commissioned officers, warrant officers and non-commissioned officers must, in their
relations to military law, be treated in the same way as those who hold corresponding
ranks in the Army: for instance a civil official who ranks as an officer can be tried by no
military tribunal inferior to a general or summary general court-martial, while one who
ranks as a warrant officer can be tried by a district court-martial but cannot be awarded
imprisonment or field punishment by it. The status conferred is a personal one and does
not give any command over others.
3. Definitions. —All the definitions in AA.s.3 must be understood as being subject to the
reservation in the opening clause of that section, ie, they are not to be read into the Act
if "there is something repugnant in the subject or context". An instance of such a
repugnance will be found in AA.s.143. "Officer" in this section cannot be used in the
restricted sense indicated in the definition in s.3(xviii), as such a meaning would be
repugnant to the context and must therefore be taken in its wider meaning of "Official". It
will be noticed that in some cases, terms are defined in AA.s.3 as "meaning" such and
such, and in others as "including" some other person or thing. In the former case the
term defined is used as a synonym for longer or more cumbrous expression, but the
legal effect of the enactment would not be altered if the longer expression were used
throughout instead of the shorter. The effect of those definitions or parts of definitions,
which declare that a term "includes" something else is somewhat different. Here the
result is that wherever the law, as it stands, applies to the class of persons, or things,
indicated by the first term, it will also apply to the class or classes who are "included",
though the natural meaning of the English language might not indicate that it did apply
to the latter. For instance, the expression "non-commissioned officer" does not, as it
stands, necessarily cover an acting non-commissioned officer, but the result of the
concluding words of definition in AA.s.3(xv) is that, wherever the words "non-
commissioned officer" occur in the Act, they are also to be taken as applying to acting
non-commissioned officers, and an acting non-com-missioned officer cannot therefore
be subjected to imprisonment as a summary award under AA.s.80. Similarly the words
"Judge Advocate General", do not as they stand, indicate a "Deputy Judge Advocate
General", but the explanation to AA.ss.137 and 138 shows that wherever in that section
a power or duty is conferred or imposed on the. Judge Advocate General a similar
power or duty is conferred or imposed on each Deputy Judge Advocate General.
4.AA.s.4. —This section enables the provisions of the AA to be applied to any force
raised and maintained in India under the authority of the Central Government, not being
part of the regular Army, and suspend the operation of any other enactment for the time
being applicable to the mid force. It also enables the Central Government to specify the
authorities who can exercise the powers and duties incident to the operation of the
provisions of the AA in respect of such a force. A force to which the AA is thus applied
does not thereby become part of the regular Army. By issue of a notification under this
section, the provisions of the AA have been applied to Civilian General Transport
Companies, Assam Rifles and GREF.
5.AA.s.8. —The powers conferred by the AA on the Commanders of armies, army
corps, divisions and brigades are, in the first instance, restricted to the officers holding
such commands. This section, however, provides for the grant of powers to officers
commanding military organizations, not specifically mentioned in the Act, which, in the
opinion of the Central Government, are not less than a brigade. The Central
Government by issue of a notification under this section. may prescribe the officer by
whom the powers which under the AA may be exercised by officers commanding
armies, army corps, divisions and brigades, as regards persons serving in such military
organizations. Cases can thus be provided for as they arise and in accordance with
local circumstances, without the necessity for fresh legislative action to meet every new
development.

6.Enrolment and Attestation.—Everyone who is permanently subject to military law

(except officers, junior commissioned and warrant officers) is subject to that law by
virtue of his "Enrolment". This process and the subsequent attestation of certain
enrolled persons, is described in Chapter III of the AA and in the Rules made by the
Central Government under the powers therein conferred. The principle underlying these
provisions is that no person should be permanently subjected to an exceptional and
severe code, like that contained in the AA, without a definite act on his part, such act
being susceptible of easy proof. "Enrolment" is therefore made a definite act recorded in
a formal document, the enrolment paper, which is itself made legal evidence of the facts
stated in it (AA.s, 141) and which shows clearly all the conditions of the bargain which
the enrolled person has made with the State, Attestation is an act of administration to
the enrolled person, the oath or affirmation of military fidelity. It forms no part of the
process of enrolment and this oath or affirmation is administered to combatants, other
persons selected to hold non-commissioned or acting non-commissioned ranks and
persons subject to the AA as prescribed by the Central Government. The ceremony
takes place when the candidate is fit for duty or has completed a prescribed period of
probation and confers on the person admitted to it a certain status and the privilege of
not being ordinarily discharge able without reference, at least, to his Brigade
Commander. (AR.13 and table annexed thereto). Only attested persons can rise to non-
commissioned ranks in the regular Army. The enrolment paper referred to above
contains an official record of the bargain made with the enrolled person on behalf of the
State, and the conditions of that bargain cannot be altered except with the consent of
the person concerned. An instance of such consent is when a man, on being trained in
special duties, agrees to serve for longer than the term for which he was originally
engaged. Such a variation of the conditions of service is therefore recorded on the
man's enrolment paper and signed by him. No separate attestation document is
required for the classes who are attested. The fact of attestation is in each case
recorded on the enrolment paper and authenticated by the signature of the attesting
officer.
7. Dismissal & Discharge etc. —(i) Officers. —No authority has been prescribed under
AA.s.22 as a competent authority to authorise the discharge of officers. The officers
receive their commission from the President who authorises their retirement from the
service on resignation of commission (See Regs Army para 103). They may also be
dismissed or removed by order of the Central Government under AA.s.19, on grounds
of failure to qualify at an examination or course, misconduct, inefficiency or disability
(ARs 13A, 14, 15 & 15A), the dismissal or removal taking effect as provided in AR.18.
They may be cashiered or dismissed by sentence of court-martial, the cashiering or
dismissal taking effect as provided in AR.168. They remain subject to the AA until duly
retired, cashiered, removed or dismissed from the service.
(ii) JCOs, WOs and OR—Dismissal, removal or discharge of JCOs, WOs and other
enrolled persons is provided in AA.ss.20 and 22 and ARs.13 and 17, the dismissal,
removal or discharge taking effect as provided in AR.18. They can also be dismissed by
sentence of a court-martial, the dismissal taking effect as provided in AR.168. They
remain subject to the AA until duly dismissed, removed or discharged from service. The
principal points to be noticed are that—
(a) Dismissal,removal or discharge in every case must be authorised by competent
authority as provided in the AA and Rules.
(b)Dismissal, removal or discharge takes effect as provided in ARs.18 or 168, as the
case may be.
(c)In no case dismissal, removal or discharge can be made retrospective. AR.18(3).
(d)A valid dismissal or discharge, which has taken effect, cannot subsequently be
cancelled without the consent of the person concerned. AR.11(2).
(e)The discharge of a person entitled under the conditions of his enrolment to be
discharged, must be carried out with all convenient speed i.e. without unreasonable
delay.
(f) Dismissal under existing regulations involves the loss of any pension or gratuity
which the dismissed person may have earned; and
(g) Every JCO, WO or enrolled person who is dismissed, removed, discharged, retired
or released from service must be furnished by his CO. with a discharge certificate as
provided in AA.s.23, on the date, if possible, from which the dismissal or discharge
takes effect.

8. Summary reduction etc. —AA.s.20(2), (4) and (6) provide for the summary reduction
of WOs and NCOs. A WO reduced to the ranks cannot however, be required to serve in
the ranks as a sepoy. Such administrative reduction may be ordered if the WO or NCO
is found inefficient or unfit to hold the position in which he was placed. Such reduction
should not, however, be ordered on grounds of misconduct, but the person should be
charged for the same and brought to trial. An acting NCO may be ordered by his CO to
revert from his acting or lance rank to his permanent grade. Such reduction may, in
each case, be ordered under AA.s.20 (6) if the acting NCO has been found unsuited to
the position in which he was placed. Reduction of WOs and NCOs can also be ordered
by the sentence of a court martial as provided in AA.s.71(f). A WO sentenced to
reduction to the ranks by a sentence of a court-martial, however, will not be required to
serve in ranks as a sepoy. A CO may also deprive an acting NCO of his acting or lance
rank as a summary award under AA.s.80(e).
9. Restrictions on fundamental rights. —AA.s.21 provides for the restrictions of certain
fundamental rights which are conferred on every citizen under Part III of the
Constitution. These restrictions are contained in AA.s.21 and ARs 19 to 21. Under the
said rules, the fundamental rights to form associations or unions and of speech and
expression and assembly are abrogated. These rights have been abrogated because of
the nature of duties performed by members of the regular Army and for the
maintenance of discipline among them.

10. Offences. —Chapter VI of the AA classifies ungrouped together and the groups
have, as regards military offences, been arranged in such an order as to emphasize
their relative military importance. It must be remembered that Chapter IV of the Indian
Penal Code (General Exceptions) applies to offences under special laws, such as the
AA.(IPC.s.40). The definitions of these offences in AA must, therefore, be read as
subject to the "general exceptions". Thus, if a non-commissioned officer charged under
AA.s.47 with striking a sepoy proves that he, only, did so in the exercise of his right of
private defence, he will be entitled to an acquittal (IPC.s.96). Similarly, if a person
charged with any offence under the AA is proved to have committed the offence while
incapable, by reason of insanity or involuntary intoxication, of knowing the nature of his
act, or that he was doing what was either wrong or contrary to law, he is entitled to the
benefit of IPC.ss.84 or 85, as the case may be and cannot be punished for what he has
done.

11.Scale of punishments. —Having laid down the offences, AA.ss.71 to 75 provide a

scale of punishments which can be awarded by courts-martial to persons subject to the
AA. For each offence, with the exception of civil offences under AA.s.69(a) for which an
obligatory punishment is provided (e.g.,death or imprisonment for life for murder), the
AA provides that the court, subject of course, to the limits imposed by the said Act upon
its powers (AA.ss.119 and 120), may award a specified (maximum) punishment or
"such less punishment as is mentioned in the Act" i.e., as in accordance with the scale
laid down. If, for example, the maximum punishment assigned to the offence is
imprisonment, any other punishment lower in the scale and appropriate with the rank of
the offender can be awarded in its place, A maximum punishment is only intended to be
imposed when the offence committed is the worst of its class, or is committed by a
habitual offender, or is- committed in circumstances which require an example to be
made. An important distinction is made by the AA in that certain offences are
punishable more severely when committed in time of war or on active service than at
other times. Instances of this distinction will be found in AA.ss.34, 36, 38, 40 and 41. A
(sentry, for example, found asleep on his post or who quits his post without being
regularly relieved in time of war, would, if the character and circumstances of the
offence were sufficiently grave, be liable to suffer death, while in time of peace he could
at the utmost be sentenced to imprisonment.

12. Combination of punishments. —Under AA.s.73, two or more punishments applicable

to the rank of the offender may be awarded in combination. Thus, an officer, JCO, WO
or NCO sentenced to forfeiture of seniority of rank may also be sentenced to severe
reprimand or reprimand and to stoppages; or a JCO, WO or other enrolled person
sentenced to imprisonment may also be dismissed from the service,, and to forfeit all
arrears of pay and allowances etc., due to him and to stoppages. An officer sentenced
to imprisonment must also be sentenced to be cashiered (AA.s.74). A WO or NCO
sentenced by a court-martial to imprisonment for life or imprisonment, dismissal or field
punishment, is deemed to be reduced to the ranks even if a, sentence of reduction is
not specifically awarded by the court (AA.s.77).

13. Field punishment, —AA.s.75 provides that a person subject to the AA, under the
rank of a WO, committing any offence on active service may on conviction by court-
martial be awarded field punishment. ARs 172 to 176 prescribe the types of field
punishments, their extent and the mode of their execution.

14. Summary punishments. —AA.s.80 provides for the award of one or more of the
punishments specified in the section summarily by a CO to persons subject to the AA
other than officers, JCOs or WOs, within the limits imposed by AA.s.81 and the extent
prescribed in AR.192. A CO can also summarily try, under AA.s.85, a JCO charged with
an offence and award him stoppages of pay and allowances until any proved loss or
damage occasioned by the offence is made good.

15. Collective fines. —AA.s.89 permits imposition of collective fines for the purpose of
enforcing collective responsibility for losses of arms. Experience has shown that such
responsibility is the best safeguard for the security of the arms of a company or similar
unit. The amount and incidence of fines to be levied and the procedure to be observed
in such cases, are regulated by ARs 185 and 186 (AA.s.191(2)(b)). Except as provided
in AA.s.89, penal deductions can be imposed only on individuals and not collectively.
Where, therefore, the loss of arms is occasioned by some wilful act which can be
brought home to an individual or individuals, the case should be dealt with summarily or
by court-martial and stoppages awarded to make good such loss (AA.ss,90(d) and
91(e)). Under AA.s.89 fine cannot be imposed on officers but only on JCOs, WOs,
NCOs and men of the company or equivalent unit concerned.

16. Penal deductions. —The pay of a person subject to AA is protected as provided in

AA.s.25. A person subject to the AA is, therefore, entitled to receive his pay without any
deductions other than such deductions as may be authorized by proper authority under
the said Act. Allowances, however, are not so protected. AA.ss.90 and 91 lay down the
circumstances under which penal deductions may be made from the pay and
allowances of a person subject to the AA; Pay and Allowances Regulations, Part I
provide for the cases in which pay and allowances are to be forfeited within the limits of
the said sections and no discretion is given to the CO whether or not to enforce wholly
or partially the forfeiture.
Other deductions which are not "penal" may be made from the pay and allowances of a
person subject to the AA to meet public claims or regimental claims or debts or any sum
required to meet compulsory contribution to any provident or benevolent fund or other
fund approved by the Central Government, as provided in AR.205. The said rule, in
effect, provides a convenient and expeditious method of enforcing such claims and
recovering such debts without recourse to the civil courts.
an officer, JCO, WO or NCO sentenced to forfeiture of seniority of rank may also be
sentenced to severe reprimand or reprimand and to stoppages; or a JCO, WO or other
enrolled person sentenced to imprisonment may also be dismissed from the service,,
and to forfeit all arrears of pay and allowances etc., due to him and to stoppages. An
officer sentenced to imprisonment must also be sentenced to be cashiered (AA.s.74). A
WO or NCO sentenced by a court-martial to imprisonmen
A "penal" deduction is, in principle, a deduction made as a penalty for an offence of
which an accused has been convicted and constitutes part or the whole of his
punishment. The term has, however, acquired a somewhat specialized meaning and
every deduction which is authorised in AA.ss.90 and 91 must be understood to be
"penal" irrespective of the common use of that word. AAs.95 allows penal deductions to
be made also from any public money due to a person subject to AA, other than a
pension and AA.s.97 provides for the remission of such deductions.
COURTS-MARTIAL

17.Arrests and proceedings before trial. —Chapter IX of the A A provides for the arrest
of military offenders by military and civil authorities (AA.ss.101,104, 105, and 107). The
said chapter also contains provisions to ensure that a military offender is not detained in
custody indefinitely without the charge against him being investigated by his CO or
without being brought to trial by court-martial (AA.ss.102 and 103). AR.27 provides for
the manner in which such a military offender may be detained in custody, where
necessary, pending his trial by court-martial.

18.Court-martial. —Chapters X, XI and XII of the AA (AA.ss.108 to 165) contain the

principal provisions governing the convening, composition, procedure, revision and
confirmation of courts-martial and certain provisions relating to jurisdiction of courts-
martial and evidence. The remainder of the law pertaining to these matters is contained
in ARs.37 to 165.

19.Description of courts-martial. —There are four different kinds of courts- martial as

under: —
(a)General courts-martial;
(b) District Courts-martial;
(c) Summary General-courts-martial; and
(d) Summary Courts-martial.

20. Summary courts-martial. —The summary court-martial is peculiar to the Indian Army
and therefore calls for more detailed notice. These courts were not introduced into the
regular Army till after the mutiny of the greater part of the Bengal Army in 1857. The
discipline of the regular Indian Army had, for some time before that catastrophe,
seriously deteriorated and it was noticed that the irregular troops and more especially
the Punjab Irregular Force, were in this respect in a much better state than their
comrades of the regular Army. After the suppression of the mutiny the reason for this
difference was sought, and. it was found to be largely due to the position of comparative
insignificance occupied by the commandant of a regular regiment, who had practically
no power to punish or reward his own men. In contrast to this, the commanding officer
of a regiment of the Punjab Irregular Force had almost absolute power in that regiment,
and could, under the system prevailing in the Force, himself deal promptly and
effectively with all military offenders. This system appears to have had its origin in the
union, frequent in those days on the Frontier, of the functions of deputy commissioner,
political officer and military commandant, in one and the same person. This union
enabled the commanding officer, as such, to convict and sentence a military offender,
and thereafter to issue a warrant for the execution of his sentence which was respected
by the civil and prison officials as emanating from him in his civil and magisterial
capacity. When a new Indian Army came to be organised on the ruins of the old, it was
realised that the hands of the regimental commanding officer must be strengthened if
the evils which had led to the practical disappearance of the Bengal Army were to be
avoided. With this object summary courts-martial were at first introduced tentatively, and
were in 1869 definitely established as part of the legal machinery of the Indian Army.
They have proved peculiarly suited to the conditions of that Army and are now the
tribunals by far the most frequently utilised in it for the trial of military offenders.

21. Execution of sentences. —Chapter XIII of the AA provides for the execution of
sentences which have been duly passed and, where necessary confirmed. The
Prisoners Act, 1900 (Act III of 1900) renders unnecessary the elaborate provisions as to
the execution of sentences of imprisonment for life or imprisonment. All that is now
required in ordinary cases, is to arrange for the transmission of military convicts and
prisoners to civil prisons, after which the above mentioned Act provides for their
discipline and, when necessary, their transfer to other such prisons or to convict
establishments. Forms of committal warrants under AA.ss.168, 169, 170, 171 and 173
are provided in Appendix IV Part II and Appendix V to AR (see ARs.166, 167 and 169 to
171). The warrants issued under AA.s.173 brings the change regarding setting aside of
the proceeding's, remission or mitigation of sentence as it affects the prisoner, to the
official notice of the superintendent of the civil prison where he is confined, and provides
for his release or the modification of the punishment to be inflicted upon him. There are
several forms of warrant for use in different circumstances, and particular attention
should therefore be paid by officers using them to the notes to the aforesaid sections
where the proper warrant to be used in each case is clearly indicated. The use of wrong
form of warrant might have serious consequences. When an offender whose sentence
has been under suspension is subsequently committed on that sentence, by reason of
its having been either specifically or automatically along with another sentence under
AA.s.188(b) ordered into execution, particular care should be taken in the preparation of
the warrant, which should show exactly what is the unexpired balance of the sentence
on which the offender is committed.

22. Suspension of sentence of imprisonment. —AA.s.182 provides that when a person

subject to the AA is sentenced by a court-martial to imprisonment for life or
imprisonment, the Central Government, COAS or any officer empowered to convene a
GCM or SGCM may suspend the sentence. Where necessary such authority, while a
sentence is suspended, may order that the offender be committed to undergo the
unexpired portion of the sentence or remit the sentence (AA.s,186). Where dismissal is
awarded in addition to the sentence of imprisonment for life or imprisonment and where
the sentence of imprisonment for life or imprisonment is suspended, dismissal does not
take effect until so ordered by any of the authorities specified in AA.s.182 (AA.s.190(1)).
Where the suspended sentence is remitted, dismissal, if any. is also to be remitted
(AA.s.190(2)).
If an offender under a suspended sentence is again sentenced to imprisonment for
three months or more and such sentence is not suspended, he is required to be
committed for the unexpired portion of the previous sentence (AA.s.188(b)).
The provisions regarding suspension of sentence do not apply to officers (see notes to
AA.s.190). They should be resorted to in appropriate cases in respect of others subject
to the AA.
When a person subject to the AA is to be dismissed or discharged otherwise than by a
sentence of a court-martial, before ordering such dismissal or discharge the fact
whether there is a suspended sentence on which the individual concerned has not been
committed, should be taken note of.

23.Other provisions.-The remaining chapters of the AA deal with pardons and

remissions, Statutory Rules and miscellaneous subjects, one of which is the disposal of
property or documents produced before courts-martial or in their custody, or regarding
which any offence appears to have been committed or which have been used for the
commission of any offence. The court, the confirming officer or any authority superior to
that officer may under the provisions of AA.ss.150 and 151 make certain orders on this
subject. These chapters call for no special remarks in addition to those which will be
found in the notes appended to the respective sections.

CHAPTER III
ARREST: —INVESTIGATION OF CHARGES
(i) Arrest
1. Military custody of person charged with offence. - A person subject to AA, who is
charged with an offence, may be taken into military custody (AA.ss.3(XIII), 101(1) and
Regs Army para 391) in accordance with the following provisions (AA.s.101(2)): -
(a) Any such person may be ordered into military custody by any superior officer.
(AA.s.3(XXIII)).
(b) An officer may order into military custody any officer, though he may be of a higher
rank, engaged in a quarrel, affray or disorder.
(c) A provost-marshal (AA.ss.3(XX) and 107(4)), which term includes any of his
deputies, assistants or any other person legally exercising authority under him or on his
behalf, or a provost-marshal appointed under the Naval or Air Force Law or any person
legally exercising authority under him or on his behalf, may arrest and detain for trial
any person subject to AA who commits or is charged with an offence, but an officer
cannot be arrested otherwise than on the order of another officer (AA.s.107(3)
(d)A police officer or magistrate may arrest, within his jurisdiction, a person subject to
AA who is accused of an offence under the said Act or who is a deserter, on a written
request in that behalf of the Commanding officer of such a person (AA.ss.104 & 105(1)).
(e) Any police officer may arrest without warrant a person reasonably believed to be
subject to AA and to be a deserter or traveling without authority (AA.s.105(2)).
Military custody means the arrest or confinement of a person according to the usages of
the service (AA.s.3(XIII)) but such a course is by no means obligatory; if the offence is
not serious it may be investigated and disposed of without placing the offender under
arrest. The arrest of an offender is governed by the following factors:-
(a) that he may not abscond and be available to stand his trial:
(b) that he may not do harm to himself;
(c) that he may not tamper with the prosecution evidence or witnesses; and
(d) that the offence involved is serious or the ends of discipline require an immediate
arrest to make an example of the offender.

2. Nature of arrest—officers. -In the case of an officer, custody means ''arrest"—either

open or close: but, if circumstances require it, he may be placed under the charge of a
guard, piquet, patrol, sentry or provost marshal. Whether the arrest is open or close will
depend upon the direction of the officer who ordered it. An officer in close arrest is
placed in charge of an "escort" consisting of another (if possible, a senior) officer of the
same rank. He must not leave his quarters or tent except to take such exercise under
supervision as the medical officer thinks necessary. An officer in open arrest may take
exercise at stated periods within certain limits, which are usually the precincts of the
regimental lines or camp; he must not, however, appear out of uniform, or at any place
of amusement or public resort, nor must he wear sash, sword, belt, or spurs. An officer
placed under arrest should always be informed in writing of the nature of the arrest,
which will be governed by the circumstances of the case; and any change in the nature
of the arrest should be notified in writing to him. An officer (or other person) under arrest
may be ordered or permitted to attend as a witness before a court-martial, or before a
civil court, or to leave his station for some special purpose.

3. Arrest when ordered. —As a rule, a commanding officer will not place an officer
under arrest without investigation of the complaint or the circumstances tending to
criminate him; though cases may occur in which it would be necessary to do so. He
should always place under arrest an officer against whom he decides to prefer a
charge, and it is his duty to report each case of arrest without unnecessary delay to the
proper superior authority. (AA.s.102(2) & AR 27(1)).

4. Arrest, how ordered. —An officer is put in arrest either directly by the officer who
orders it, or, more generally, by some subordinate carrying out his orders, i.e., by the
adjutant of the unit when the arrest is ordered by the commanding officer, and. by an
officer of the staff when the arrest is ordered by a superior officer, and not through the
channel of the commanding officer. The order may be verbal or written, the latter as
being more formal being the preferable method,except where the offence is committed
actually in the presence of the commanding officer or superior officer. On being put in
arrest, an officer is deprived of his sword.

5. Release from arrest. —The release of an officer under arrest may be ordered by the
officer who imposed the arrest, or the superior to whom it may have been reported; but,
as a rule, except in cases of obvious error, the release should not be ordered without
the sanction of the highest authority to whom the case may have been referred.
(RegsArmypara394). An officer released, except specifically without prejudice to re-
arrest, will not again be arrested on the same charge unless some new and special
circumstances have arisen.

6. Junior commissioned, warrant and non-commissioned officers. —The rules which

govern the custody of officers apply also to a junior commissioned, warrant or non-
commissioned officer. If charged with a serious offence, a junior commissioned, warrant
or non-commissioned officer will, as a rule, be placed under arrest forthwith; but in case
of doubt as to the commission of the offence, the arrest may be delayed; and if the
offence is not serious, it may be disposed of without previous arrest.
Persons subject to the AA under s.2(l)(i) as officers, junior commissioned officers,
warrant officers and non-commissioned officers may, when charged with an offence, be
placed under arrest under the same conditions as persons holding these ranks.

7.Other persons. —A person under the rank of non-commissioned officer taken into
military custody on a charge of having committed an offence is placed either under
close arrest or under open arrest. Close arrest in the case of such a person means
confinement in charge of a guard, piquet, patrol, sentry or provost marshal. He is not to
be placed in close arrest unless confinement is necessary for his safe custody or the
maintenance of discipline. For minor offences, such as absence from roll calls and other
slight irregularities men are placed under open arrest. A person under open arrest will
not quit the regimental lines, except on duty or with special permission, until his case is
disposed of (RegsArmypara395(e)), but he will attend parades and may be ordered to
perform all duties. (Regs Army para 396 (c)).

8.Performance of duties while in closed arrest.—An officer, junior commissioned officer

or warrant officer under arrest will not perform any duty other than personal routine
duties and such duties as may be necessary to relieve him from the charge of any cash,
equipment, stores, accounts or office of which he may have charge or for which he may
be responsible. (Regs Army para 396 (a)).
Except on active service, a NCO under arrest or a sepoy under close arrest, is not to be
required to perform any duty other than personal routine duties and such as may be
necessary to relieve him from the care of any cash, stores, etc, for which he is
responsible, nor is he permitted to bear arms, except in an emergency by order of his
commanding officer, or on the line of march. (Regs Army para 396(b)). If, however, by
error, he is ordered to perform any duty, his offence is not thereby condoned.
(RegsArmypara396(e)).

9.No right to demand trial. —Except in the circumstances mentioned in AA.s.84(a) when
it is proposed to award summarily to an officer, junior commissioned or warrant officer, a
punishment of forfeiture of seniority or of service for the purpose of promotion, a person
subject to the AA has no right to demand a court-martial. If he deems himself wronged
by the arrest, or otherwise, his remedy is a complaint in the manner prescribed by the
AA. (AA.ss.26 and 27).
Every officer whose character or conduct as an officer and gentleman has been
impugned or who has been charged or arraigned before a civil (criminal) court, may be
suspended from duty, in which case he will be placed under the same restrictions as an
officer in open arrest and may be permitted to wear plain clothes, (Regs Army para
346).

(ii) Investigation of Charges

10.The charge against every person taken into military custody must be investigated
without unnecessary delay (AA.s.102(I)). The commanding officer of the accused is
responsible that the investigation is begun within forty-eight hours of the committal of
the person being reported to him unless investigation within that period seems to him to
be impracticable with due regard to the public service. Every case of a person being
detained in custody beyond forty-eight hours, and the reasons for the delay in disposing
of the case, must be reported to superior authority. (AA.s.102(2), AR.27(1)).

11.In the case of an officer. There is some difference in procedure between the cases of
officers and of other persons. In all cases the commanding officer is made responsible
for deciding whether the charge ought to be dismissed or proceeded with, and in the
latter event for taking the further necessary steps: but in the case of an officer there
need not, unless the officer, requires it, be a formal examination of witnesses and a
recording of their evidence in the presence of the accused. If he likes, he can waive
such formal investigation (AR.25); at the same time the commanding officer may hold
one at his discretion.

12.ln the case of other persons. Prior to the appearance before the commanding officer
of an alleged offender, a preliminary investigation into his case is generally made by his
squadron or company commander, or by the corresponding officer in other branches of
the service. If the accused is not in arrest or confinement, or the case is not one which
the commanding officer has reserved for his own disposal this officer may decide to
deal with the case himself by awarding one of the minor punishments within his power
or by dismissing it. Every case in which the accused is in arrest or confinement is dealt
with by the commanding officer, unless the latter remands it to the squadron or
company commander for disposal. AR.22 applies to this preliminary investigation
equally with that before the commanding officer.

13.Duty of officer conducting investigation.-The manner in which the investigation of

charges by a commanding officer is to be carried out is regulated by ARs.22 to 25. This
duty requires deliberation and the exercise of temper and judgment, in the interest alike
of discipline and of justice to the accused. Except in case of officers, the investigation
must be conducted in the presence of the accused. ARs.22(1) and 25.
After the nature of the offence charged has been made known to the accused, the
witnesses present on the spot who depose to the facts on which the charge is based
are examined. The accused must have full liberty of cross-examination. The
commanding officer, after hearing what is stated against the accused will, if he is of
opinion that no offence at all, or no offence requiring notice, has been made out, at once
dismiss the charge (AR.22(2)). Otherwise, he must ask the accused what he has to say
in his defence, and whether he has any witnesses to call, and will give him full
opportunity both of making a statement and of supporting it by evidence. The
commanding officer will then consider whether to dismiss the case, or to deal summarily
with it himself, or, if the accused is below the rank of warrant officer, to order trial by
summary court-martial, or to adjourn the case for the purpose of having the evidence
reduced to writing, with a view to trial by court-martial, or when the accused is an officer
below the rank of lieutenant colonel, or is a junior commissioned or a warrant officer lore
summary disposal under AA.ss.83 and 84 (AR.22(3)). He cannot forthwith hold a.
summary court-martial, unless the offence is one which a commanding officer can try
without reference to superior authority, or, if the offence is one requiring such reference,
he certifies that there is grave reason for immediate action and that such reference
cannot be made without detriment to discipline. (AAs.120(2), AR 130). A summary of
evidence and charge sheet must accompany all references to superior authority.

14.Caution as to expressing opinion. —During the investigation, the officer conducting it

must be careful not to let fall, before he disposes of the case, any expression of opinion
as to the guilt of the accused, or one which might prejudice him at a subsequent trial. It
may happen that officers who have been present at the investigation are detailed as
members of the court convened in consequence of it; therefore, nothing should be said
or done which might, though unconsciously, bias their judgment beforehand. Conduct
sheets should be examined by the commanding officer when, and not before, he has
satisfied himself as to the guilt of the accused.

15. Adjournment for taking a summary of evidence.- Where a commanding officer

adjourns the case for the purpose of having the evidence reduced to writing the
evidence of all material witnesses (whether called before the commanding officer or not)
must be taken down in writing before the commanding officer or (as is usually the case)
before some officer deputed by him, in the presence of the accused, who must be
allowed to cross-examine them. (AR.23(1) and (2)). The commanding officer can, if
necessary, issue a summon requiring the attendance of a civilian witness.(AR.23.(6)).
The witnesses cannot be sworn or affirmed. In certain cases a signed statement of
evidence may be accepted -e.g. where the attendance of witness cannot be readily
procured. In such a case the officer taking the summary must certify the reason for
accepting a written statement. (AR.23(5))..
When all the evidence for the prosecution has been taken, the accused, before he
makes any statement, must be formally cautioned in the prescribed words. (AR.23(3)).
Any statement of the accused will be taken down, but he will not be cross-examined
upon it.

16.Mode of taking summary.-Great care is necessary in taking a summary of evidence.

The discrepancies not infrequently observable between the statements recorded in the
summary of evidence and the evidence given before a court-martial may often be traced
rather to the hasty or careless preparation of the summary than to any prevarication or
desire to mislead on the part of the witnesses. Moreover, a carelessly prepared
summary of evidence may require references between the convening officer and the
commanding officer of the accused and be a cause of delay in bringing the accused to
trial.
17.Remand of accused for trial by court-martial.-When the summary of evidence has
been taken, the commanding officer must consider it and finally determine whether or
not to remand the accused for trial by court-martial (AR.24). It may be that on reading
the evidence he will come to the conclusion that the case is one which ought to be
disposed of summarily, or even dismissed. If a court-martial is ordered or applied for, it
is a matter for discretion whether the accused need be kept in arrest or confinement
unlit the charge is disposed of. It is the duty of the commanding officer on reading the
summary of evidence to note whether or not the evidence taken down in the summary
corresponds with the evidence given at the inquiry before him. If the commanding officer
decides to remand the accused for trial by court-martial, he must next consider by what
class of court he should be tried. As a rule this will be a summary court-martial, sanction
being previously obtained where such sanction is necessary. (AA.s.120(2)). When
applying for a general or district court-martial or for sanction to hold a summary court-
martial, the summary of evidence and charge-sheet should be submitted with the
application.

18.Use of summary of evidence.- The summary of evidence may be used for certain
limited purposes at the trial, and also for the purpose of giving notice to the accused of
the charge he will have to meet, and to the convening officer, presiding officer and
judge-advocate (if any) of the case to be tried. Either the summary itself or a copy must
be laid before the court-martial. (AR.41).
(iii) Summary Powers of a Commanding Officer

19.Powers of commanding officer. —AA.s.82 authorises Chief of the Army Staff to

specify the minor punishments which may be awarded summarily to persons subject to
the Act; and AA.s.80 authorises him to specify the officers by whom such punishments
may be awarded. The minor punishments specified under this section set out and, for
the purpose of awarding such punishments, the officers are specified in the Regs Army
para.443.
There is no offence which a commanding officer is compelled by law or by rules to send
before a court-martial, and each case should be considered on its merits, but a
commanding officer should not, of course, dispose summarily of case which he is
debarred by AA.s.120(2) from trying by summary court-martial without reference to the
superior authority, or any other case which obviously deserves a more severe
punishment than he is empowered to award summarily.
A commanding officer has no power to punish an officer but the custom of the service
allows a commanding officer or any superior officer to reprove an officer for a minor
breach of discipline not sufficiently serious to justify its being made the subject of a
charge under the AA and brought to trial before a court--martial, or tor summary
disposal by a superior authority under AA.s.83 or 84. Such a reproof is not a
punishment, but in certain circumstances it might debar a charge from being
subsequently laid against the officer. COs should therefore be careful not to administer
such a reproof in cases where superior authority might wish to take stronger disciplinary
action.
20. No trial after punishment by commanding officer-. When once an offender has been
punished or the charge otherwise disposed of by his CO or some other officer, he
cannot be tried by court martial for the same offence, and similarly he cannot be
subjected to a minor punishment, for any offence of which he has been acquitted or
convicted by a court martial or a criminal court (AA. s.121).
When commanding officer has once awarded punishment, he cannot afterwards
increase it. It is considered that his award is complete when the man has left his
presence (See note7to AA.s.80).

21. Summary awards by superior authority-Officers below the rank of lieutenant colonel,
JCOs and WOs may be summarily dealt with by one of the superior authorities specified
in AA.ss.83 and 84. Such officers, JCOs and WOs may be subjected to one or more of
the following punishments—forfeiture of seniority or forfeiture of service for promotion
(in the case of those whose promotion depends on length of service) for a period not
exceeding twelve months, severe reprimand, or reprimand and stoppages. A CO is only
authorised to award ctoppages to a JCO (AA.s.85.). Awards which appear to be illegal
or excessive can be reviewed by superior authority as provided in AA.ss.87 and 88.
(Regs Army para.442, also refers).

22. Hearing of charge.—When an officer, JCO or WO is remanded for summary

disposal of a charge against him by superior authority a copy of the summary of
evidence or (in the case of an officer where there is no summary of evidence) an
abstract of evidence should be given to him not less than 24 hours before the trial ( AR
26(1)).
The authority empowered to deal summarily with the charge must, unless he dismisses
the charge, or unless the accused has consented in writing to dispense with the
attendance of witnesses, hear the evidence in the presence of the accused, who will be
given full opportunity to cross-examine any witness against him, and to call any
witnesses and to make a statement in his defence. If the accused consents in writing,
the above authority may deal with the case summarily after reading the summary or
abstract of evidence. (AR.26(2)). Evidence given before a court of inquiry is not
admissible, and cannot be used as a summary or abstract of evidence, even with the
consent of the accused (AR 182).

23. Disposal of charges.—An authority can dispose of a case summarily, not only if
asked to do so, but also if he is asked to convene a court martial for the trial of the
offender, Even if he is asked to deal summarily with the case, he can, if he thinks it
desirable, convene a court martial. (Regs Army para.449). If on perusal of the summary
(or abstract) of evidence and other documents he thinks fit, he can at once, without
bringing the accused before him, either order the charge to be dismissed or order a
court martial, or he can decide to hear the evidence with a view to dealing summarily
with the case. After hearing the evidence, the" authority can still order dismissal of the
charge or order a court martial, or he can deal summarily with it, but, if he proposes to
award a punishment of forfeiture of seniority or service for promotion, the accused has
the right to elect trial by court martial (AA.s.84.(a)).
24. Right of appeal from summary award. —There is no appeal from a summary award
but as has been already mentioned, an officer, JCO or WO may instead of submitting to
a summary award of forfeiture of seniority or service for the purpose of promotion, elect
to be tried by court martial. Other persons cannot demand a court martial; but if any
person considers himself wronged by the award he may make a complaint in the
manner prescribed in AA.ss.26 and 27. A punishment awarded by a CO under AA.s.80,
which appears to be wholly or partly illegal, unjust or excessive or too severe, can be
cancelled, varied, or remitted by certain superior officers. (Regs Army para 442).

25. Penal deductions and remissions (Stoppage's from; pay and allowances). — Under
AA.s.91, and Pay and Allowances, Regulations, a person subject to the AA, other than
an officer, forfeits pay and allowances automatically for every day of desertion, or
absence without leave, or as a prisoner of war; also for every day of imprisonment or
field punishment awarded by a criminal court, court martial or an officer exercising
authority under AA.s.80 or in custody under any charge resulting in a conviction by a
criminal court or court-martial, or under a charge of absence without leave, resulting in a
summary award of imprisonment or field punishment under AA.s.80; also for every day
in hospital on account of sickness certified to have been caused by an offence
committed by him.
Under AA.s.97 and AR.195. —(a) Any forfeiture of pay and allowances under chapter
VIII of the AA may be remitted by the Central Government; (b) on summary conviction
for absence without leave for a period not exceeding five days, the CO may remit the
forfeiture of pay and allowances entitled by that absence; and (c) the forfeiture of pay
and allowances incurred by a prisoner of war may be remitted by the prescribed
authority unless a court of inquiry finds that the absence was due to the man's own fault
or misconduct. Pay and allowances Regulations only authorise forfeiture of pay and
allowances under clause (b) of AA.s.91 for any period the offender may have been in
confinement; a JCO, WO and NCO in arrest (not confinement) and a person in open
arrest, incurs no forfeiture of pay and allowances under this clause.
In the case of absence without leave, as pay and allowances are forfeited automatically,
the officer dealing with the case should make no award as to it, but merely inform the
offender of the number of days pay and allowances forfeited. If a period of absence
does not amount to six hours or upwards, no pay and allowances are forfeited, except
where the absence prevents the absentee from fulfilling some military duty, which is
thereby thrown on some other person, in which case the absentee will forfeit a day's pay
and allowances no matter how short his absence may be. If the period of absence
amounts to six hours, but not to twelve hours, one day's pay and allowances are
forfeited. If the period of absence amounts to twelve hours or upwards, pay and
allowances are forfeited for the whole of each clay during any portion of which the man
was absent. (AA.s.92).
A CO may, where a man is not tried by court martial, order stoppages of his pay and
allowances to make compensation for any expenses caused by him, or for any loss or
damage or destruction done by him to any arms, ammunition, equipment, clothing,
instruments, or regimental necessaries or military decoration, or to any buildings or
property; and may likewise order the stoppage of the amount of any forfeiture or fine
awarded by himself.
CHAPTER IV
COURTS-MARTIAL

(i) Description of courts-martial and How Convened

1.Description of courts-martial. —A person subject to the AA who is to be tried by court-

martial may be brought before a GCM, a DCM, or a SCM. In certain circumstances trial
may be by a SGCM
The SCM is the tribunal most frequently used in the Army and is specially dealt with in
paras 102 to 113 of this chapter.

2. Distinction between DCM and GCM, —The difference between a DCM and a GCM
consists mainly in their composition and in the extent of punishment which each tribunal
can award.

3.Order convening the court. —A DCM or GCM depends for its jurisdiction upon the
order which brings it into being, namely the convening order issued by an officer
authorised under the AA so to do.

4.Convening of a GCM. —A GCM may be convened by the Central Government or the

COAS or by an officer empowered in this behalf by warrant of the COAS (AA.s.109).

5.Convening of a DCM. —A DCM may be convened by an officer having power to

convene a GCM or by an officer empowered in this behalf by warrant of any such officer
(AA.s.110).

6.Form of warrants. —The forms of various courts-martial warrants at present in use are
set out in part IV. They are the following: —
(i) A-1 warrants—Issued by the COAS to Officers Commanding Army. Army Corps,
division, independent brigade or equivalent commanders authorising them to convene
GCM for the trial of any person under their command who is subject to military law;
(ii) A-2 warrants—Issued by the Central Government to the COAS empowering him to
confirm the findings and sentence of a GCM held for trial of any person subject to
military law. (See also para 7 below);
(iii) A-3 warrants—Issued by the Central Government to officers Commanding Army,
Army corps, division, independent brigade or equivalent commanders empowering them
to confirm the findings and sentence of a GCM held for the trial of any person under
their command who is subject to military law (See also para 7 below);
(iv) B-1 warrants—Issued by the officers having power to convene a GCM to Brigade or
equivalent commanders empowering them to convene a DCM for the trial of any person
under their command who is subject to military law and to confirm the findings and
sentence thereof.
7. Powers conferred by warrant. —Such warrants are normally addressed to an
officer by the designation of his office and give authority to the officer on whom the
command may devolve in his absence. Any such warrant may contain any restrictions,
reservations or conditions (AA.ss.111 and 156) as the officer/ authority issuing it may
think fit.
Under A-2 and A-3 warrants, if by the sentence of any GCM, a person subject to military
law has been sentenced to suffer death, confirmation is to be withheld and the
proceedings transmitted to the Central Government. Also in the case of any other GCM,
in which the confirming authority thinks fit to do, the confirmation may be withheld and
proceedings transmitted to the Central Government (if the confirming authority is the
COAS) or to a superior authority (in other cases). B-l warrants contain no restrictions or
special conditions.

8.Convening of SGCM. —A SGCM may be convened by an officer empowered in this

behalf by an order of the Central Government or the COAS; and on active service by
the Officer Commanding the forces in the field, or by any officer empowered by him in
this behalf; and also by an Officer Commanding any detached portion of the regular
Army, on active service, when in his opinion, it is not practicable with due regard to
discipline and the exigencies of the service, that an offence should be tried by a GCM
(AA.s.112).

9.Holding of SCM. —No convening order is necessary for the holding of a SCM. It may
be held by the CO of any Corps, department or detachment of the regular Army
(AA.ss.116(1) and 3(v)).
(ii) Jurisdiction

10. Jurisdiction of GCsM and SGCsM. —A GCM and SGCM can try any person subject
to the AA. They have complete jurisdiction to try any offence, though certain restrictions
are placed by AA.s.70 upon their power to try cases of murder, culpable homicide and
rape. They can award any punishment authorised by the AA including the punishment
of death and imprisonment for life (AA.s.118).

11. Jurisdiction of DCM. —A DCM cannot try an officer or JCO. It can try a WO, but its
powers of punishing him are limited. It has complete jurisdiction to try any offence,
though the same restrictions are placed by AA.s.70 upon its powers to try cases of
culpable homicide and rape as are imposed upon a GCM or SGCM.
A DCM cannot award a sentence higher than two years' rigorous or simple
imprisonment (AA.s.119); it therefore cannot try a case of murder where the only
punishment which can be awarded is death or imprisonment for life. A DCM cannot
award a sentence of imprisonment to a WO (AA.s.119).
12. Jurisdiction of SCM. — A SCM cannot try an officer, a JCO or WO or a person
subject to the AA as an officer, JCO or WO (AAs.120(3)). It has jurisdiction to try any
offence under the AA except such as can only be committed by an officer, JCO or WO
(e.g. an offence under AA.s.45). But in the case of certain offences the sanction of
superior authority must be obtained unless immediate trial is considered by the CO to
be necessary (AA.s120(2)). Certain restrictions are also placed by AA.s.70 upon its
powers to try cases of culpable homicide and rape; it cannot, of course try a case of
murder.
A SCM cannot award a sentence higher than one year's rigorous or simple
imprisonment if the officer holding the trial is of the rank of Lt. Col and upwards, and
three month's rigorous or simple imprisonment if such an officer is below that rank
(AA.s.120(5)); it cannot, therefore, try a case of murder.

13. Prohibition of second trial. — A court-martial cannot try or punish a person for any
offence of which he has been already acquitted or convicted by a court-martial or by a
competent civil (Criminal) court or where the charge against him has been dismissed, or
he has been dealt with summarily (AA.s.121, AR.53(1)(a))
The prohibition does not apply where there has been no valid trial, resulting in an
acquittal or conviction, or where the finding and sentence which require confirmation,
have not been confirmed. In such cases the offender can be tried afresh. Such fresh
trial should be ordered only in exceptional circumstances (AA.ss.117(4) and 153).
Pardon or condonation by competent military authority, if proved, operates as a bar to
the trial of an offender (AR 53(1) (b)).

14. Time limit for trial. — An offence other than mutiny, desertion or fraudulent
enrolment cannot be tried by court-martial, if three years have elapsed since the date of
its commission.
A person (other than an officer) cannot be tried even for desertion, other than desertion
on active service, or for fraudulent enrolment if the said person, has, subsequently to
the commission of offence, served continuously in an exemplary manner for not less
than three years with any portion of the regular Army. (AA.s.122(4)). Also see Regs
Army para 465.

15. Trials of persons to longer subject to the AA. — A court-martial can try a person who
has ceased to be subject to the AA provided that the trial for the offence committed by
him while so subject, commences within six months of his ceasing to be so subject.
Such a person can be tried even though he has ceased to be subject to the AA for more
than six months if the trial is for an offence of mutiny, desertion or fraudulent enrolment.
(AA.s.123).

16.Place of trial. —An offence, wherever committed, may be tried and punished at any
place whatever, (AA.s.124).
(iii) Composition

17.Composition of GCM. —A GCM must be composed of at least five officers, each of

whom have held commission for not less than three whole years and must be subject to
the AA; and not less than four of the members of the court must be of a rank not below
that of Captain. (AA.s.113).
The members of the court must, so far as practicable, belong to different corps or
departments and in no case shall the court be composed exclusively of the officers of
the corps or department to which the accused belongs. (AR.40(1)).
Members should be of equivalent or superior rank to the accused if he is an officer ( AR
40(2)) and an officer under the rank of Captain must not be a member of a court trying a
field officer (AR 40(3)). The members of the court may be mentioned by name in the
convening order, or their rank and the unit to which they belong may alone be stated.
The senior member sits as the presiding officer. (AA.s.128).
Certain officers are disqualified from sitting as members. See para.21.
A JA must be appointed to sit on every GCM. (AA.s.129). Also see Regs Army para
459.

18.Composition of DCM.—The provisions as to the composition of a GCM referred to in

para 17 above, also apply to DCM except that—
(a) the legal minimum of members required is three instead of five (AA.s.114);
(b) the length of commissioned service is two years instead of three (AA.s.114).
(c) AA.s.114 does not stipulate any particular rank of members;
(d) the members may be drawn exclusively from the corps or department to which the
accused belongs; and
(e) a JA may or may not be appointed to sit on a DCM (AA.s,129).

19. Composition of SGCM. —A SGCM shall consist of not less than three officers.
(AA.s.115).
Members should have held a commission for not less than one year; but, if any officers
are available who have held commissions for not less than three years, they should be
selected in preference to officers of less service. (AR.151(2)).

A JA may or may not be appointed to sit on a SGCM. (AA.s.129).

20.SCM.—A SCM may be held by the CO of any corps, department or detachment of

the regular Army and he shall alone constitute the Court. The proceedings shall be
attended throughout by two other persons, who shall be officers, junior commissioned
officers or one of either and who shall not as such he sworn or affirmed. (AA.s.116).

21.Disqualification of officers.-Officers who are eligible through the length of their

commissioned service to act as members of courts-martial may nevertheless be
disqualified from serving on a particular court-martial. The following persons are
disqualified in the case of a GCM and DCM: —
(i)the convening officer;
(ii) the prosecutor;
(iii) a witness for the prosecution;
(iv) the CO of the accused or an officer who investigated the charges before trial or took
down the summary of evidence;
(v) the company etc., commander who made preliminary enquiry into the case;
(vi) an officer who was a member of a court of inquiry into the matters on which the
charges against the accused are founded;
(vii) where the accused has been previously tried for the same offence, any officer who
was a member of the court-martial by which the offence was tried; and
(viii) an officer who has a personal interest in the case (AR 39(2)).
The provost-marshal or assistant provost-marshal is also disqualified from serving in a
GCM or DCM. (AR.39(3)).
(iv) Duties of convening officer

22.Consideration of proposed charges and evidence. —An application for a GCM or

DCM should be accompanied by a summary of evidence (or abstract of evidence, in the
case of officers) a charge-sheet and certain other documents stated on the form
provided for such applications.
Before acceding to an application for a GCM or DCM submitted by a CO, the convening
officer must consider the nature of the case, the statutory provisions and regulations
applicable to it and, subject thereto, must use his discretion as to the mode of disposing
of the application. He must satisfy himself that the charge submitted by the CO
discloses an offence under the AA and is properly framed in accordance with the AR.
He must also be satisfied that evidence sufficient to justify trial is disclosed in the
summary or abstract of evidence; if he thinks that it does not, he should order the
accused to be released; if he is in doubt, it is within his discretion to order the release of
the accused or to refer the matter to superior authority. (AR.37(1)). In any case he may
direct the CO to alter the form of the proposed charge in view of the evidence
submitted; he may give directions that further evidence should be obtained; in a suitable
case he may direct that the accused should be released without prejudice to his re-
arrest till further evidence is forthcoming.
Where an accused person is to be arraigned on a serious charge, the other charges in
respect of minor offences should be dropped.
If the convening officer considers that a case should be disposed of summarily or by
SCM instead of by a DCM or GCM, he should take steps to effect this.
In all cases of trial by GCM and all cases of indecency, fraud or theft (except ordinary
theft) and civil offences (except simple assaults) and in cases of doubt or difficulty, the
charge and summary of evidence have to be submitted to DJAG of the command before
trial is ordered. Regs Army para 458

23.Decision to try by court-martial. — If the convening officer is of opinion that the case
should be tried either by a DCM or GCM, he will if the terms of the warrant granted to
him permit, convene the court-martial. If the case is one for trial by a GCM and he holds
no warrant to convene -such a court, he will refer the case to proper superior authority
holding such a warrant.

24.Type of court-martial to be convened. — The powers of a SCM are sufficient to deal

with all ordinary offences committed by persons below the rank of WO. In the case of
aggravated offences, however, a DCM or GCM may properly be convened.
In deciding whether an accused should be tried by GCM or DCM, where the
circumstances permit trial by either of these tribunals, the convening officer will bear in
mind
(a) the nature of the offence;
(b) the prevalance of the particular offence charged;
(c) the general state of discipline in his command;
(d) the character of the accused: and
(e) the maximum sentence which can be imposed having regard to any sentence which
the accused is already serving.
A case should not as a rule be sent for trial, unless there is reasonable probability that
the accused person will be convicted. At the same time there may be cases where
disgraceful charges have been preferred and where a court-martial affords the only
means to the accused of clearing his character. See Regs Army para 405(c).

25. Order for trial by court-martial. — If the charges submitted by the CO are approved,
or if they have been amended and the accused has again been remanded for trial by
court-martial on the amended charges, they will be made into a charge-sheet (AR 28)
and the convening officer or a staff officer on his behalf, will issue an order thereon
directing trial by court-martial.
A convening officer will consider whether the charges upon which the accused is to be
brought to trial are all to be contained in one charge-sheet or whether they should be
inserted in different charge-sheets (AR 79(1)). Where an accused is ordered to be tried
on a number of charges in the same charge-sheet he may apply to the convening officer
or at the trial for any of the charges to be tried separately (AR.79(5)).
If the convening officer has ordered trial on separate charge-sheets he will direct the
order in which the accused is to be tried (AR79(2)), and may direct the court that in the
event of a conviction upon a charge in any charge-sheet, the accused need not be tried
upon the subsequent charge-sheets (AR.79(4)).
Two or more accused may be tried jointly on one charge, and the charge-sheet may
contain additional charges against one or more of the accused alleging offences
committed separately provided they are part of the same series of offences (AR.35(1),
(2)and(3)).
Where two or more accused are jointly charged, any one of them may apply to the
convening officer or the court to be tried separately (AR.35(4)).
Each charge-sheet must be signed by the commanding officer of the accused and bear
upon the face of it the convening officer's directions for trial (AR.31and notes thereto).

26.Convening orders. —Once it is decided that an accused will be tried by court-martial,

an order for the assembly of the court, known as the convening order, will be issued.
This order will be signed by the convening officer or by a staff officer on his behalf.

27.Papers for members etc.—The convening officer is responsible for ensuring that the
members and JA (if appointed) receive the papers referred to in AR.37(4). These should
be sent as soon as possible after the court has been convened.
(v) Preparation of Defence

28. Information to be given to the accused—As soon as practicable after an accused

has been remanded for trial by a GCM or DCM and at least 96 hours (or on active
service 24 hours) before he is brought up for trial, an officer must give him a copy of the
summary of evidence or in case of an officer where there is no summary of evidence an
abstract of evidence, and apprise him of his rights in connection with the preparation of
his defence (AR.33(7)).
As soon as trial has been ordered, a proper opportunity to prepare his defence must be
afforded to the accused, who must be permitted to have free communication with any
witnesses whom he may desire to call, and with any 'friend', defending officer or legal
adviser whom he may wish to consult if they are available.
As soon as practicable before he is arraigned for trial, and at least 96 hours (or where
the accused person is on active service 24 hours) before he is so arraigned, an officer
must give him a copy of the charge-sheet and if necessary explain the charges to him.
The said officer must also inform him of his rights in connection with the securing of
witnesses on his behalf (AR.34(1)).
The officer shall also deliver to the accused a list of the names, rank and corps (if any)
of the officers who are to form the court, and where officers in, waiting are named also
of these officers (AR 34(3)).
The accused person shall have the right to address an application to the DJAG/AJAG
of. the Command within which he for the time being is, if he is kept under arrest for a
period longer than 48 days without being brought to trial or is not given full liberty for
preparing his defence (AR.33(6)). -

29. Representation of the accused. The accused may defend himself or he may be
represented by a defending officer or a counsel. If he intends to be represented by
counsel, he must give notice to that effect, so that the convening officer, may, if he
considers it desirable, obtain, the services of counsel on behalf of the prosecutor. If the
accused does not intend to be, so represented but counsel has been obtained on behalf
of the prosecutor, the convening officer must take steps to inform the accused to that
effect not less than seven days before the trial, so that the accused may obtain counsel
for his defence, if he so desires. Similar notice should be given to the accused where
the convening officer intends to appoint or apply for the services of an officer with legal
qualifications to act as prosecutor at the trial (AR.97).

30. Qualifications, duties of counsel and defending officer. —The qualifications of

Counsel as also their functions, rights and duties are set out in ARs 96 to 101.
A defending officer has the same functions, rights and duties as a counsel (AR.95(3)).
The friend of the accused can only act in an advisory capacity (AR 95(4)).

31. Assignment of defending officer for accused. —In order to ensure that an accused
person is represented at his trial if he so desires, it is the duty of the officer referred to in
para 28 above, at the time, he hands, the summary of evidence to the accused, to ask
him to state in writing if he wishes to have a defending officer assigned to him by the
convening officer (AR 33(7)); if he does so the convening officer must use his best
endeavours to secure the services of a suitable officer (AR 95(2)).
(vi) Assembly of Court

32.Assembly of Court. —A GCM or DCM will assemble at the time and place named in
the convening order. If a JA has been appointed, he must be present, so should also be
any waiting members detailed in the convening order to serve as members of the court,
if required.
On assembly the members of the court will take their seats in accordance with their
seniority (AR.75); the JA, if any, being seated on the right of the presiding officer.
The order convening the court, the charge-sheet and the summary (or abstract) of
evidence will then be placed before the court, by the JA (or if no JA has been appointed,
by the senior member), to whom they would have been forwarded previously by the
convening officer (AR.37(4)).
At this stage no one should be in the court room except the members, the JA, if
appointed, and the waiting members.

33. Inquiry as to composition of Court. —The court will examine the convening order for
the purpose of ascertaining whether the members who have taken their seats, the JA, if
any, and the waiting members present who may have been detailed are those
mentioned in the order. If the members present are not actually named in the order they
must be of the actual ranks and belong to the actual units stated therein. The presiding
officer is not appointed by name and the senior member presides (AA.s.128). The court
will also have regard to AR.40.
If the convening order appears on the face of it to be proper and to have been duly
signed, the court will have fulfilled its first duty, namely that of satisfying itself, that the
court is convened in accordance with the AA and AR (AR.41(1) (a)).

34.Inquiry as to legal minimum of members. —The court will next ascertain that the
legal minimum of members required for a GCM or DCM, as the case may be, have
been detailed and are present (AA.ss.113 and 114). Where the membership of the
court, as detailed in the convening order, is incomplete, waiting members, if there are
any, and if they are eligible and qualified, must take the place of absentee members.
If the number of members detailed in the convening order exceeds the legal minimum,
but some of them are absent at the assembly of the court, the court should ordinarily
adjourn unless sufficient waiting members are available in the place of the absentee
members to make up the full number detailed in the convening order; but the court, in
the interests of justice and for the good of the service, may proceed with the trial
provided that the legal minimum is present. If the legal minimum is not present, the
court must adjourn (AR.38).

35. Inquiry as to eligibility and qualification of members. —The court will then
satisfy itself (AR 41(l)(c)) that all the members are eligible and not disqualified under the
AA and AR. The eligibility of an officer depends on his status as an officer, i.e., on his
being subject to military law or otherwise qualified to serve under the provisions of the
AR and having held a commission for the required period. Disqualification is a personal
question and depends on his being or having been in any manner a party to the case.
The grounds of ineligibility and disqualification are set out in paragraphs 17, 18 and 21
above.
If the trial is by GCM, the court must be satisfied that the members are of the required
rank (AA.s.113 and AR.40).
36.Judge Advocate. —Where a JA has been appointed, the court should ascertain that
he has been duly appointed and is not disqualified (ARs.41(2) and 102). The convening
officer appoints the JA, who must be an officer of the department of the Judge Advocate
General, if such officer is available, or if no such officer is available, then an officer
approved of by the Judge Advocate General or any of his deputies ( AA.s.129). A JA
must be appointed for every GCM, and may be appointed for a DCM (AA.s.129).

37.Powers of adjournment of court.-The court has wide discretionary powers of

adjournment if not satisfied on any of the above matters.
Circumstances may arise which render adjournment compulsory e.g., if the court is
finally reduced below the legal minimum. Any adjournment other than adjournments
from day to day, with the reason therefore, should be reported to the convening officer
(AR.41(3)).

38. Amenability of the accused and validity of the charge. —After ascertaining the
validity of its constitution, the Court will next consider whether the accused is amenable
to its jurisdiction (AR 42(l)(a)).
Finally, the court must be satisfied that each charge discloses an offence under the A A
and is properly framed in accordance with AR; and is so explicit as to enable the
accused readily to understand what he is to answer (AR 42 (l)(b)).
If not satisfied on the above matter, the court will report its opinion to the convening
authority and may adjourn for the purpose (AR.42(2)).
(vii) Opening of the court

39.Appearance of accused etc. —At the conclusion of the above preliminary

proceedings the accused will be brought. before the court with his escort.
The prosecutor who must be a person subject to military law (with his counsel, if any)
will take his place in court, and accommodation will be afforded for the. defending
officer, defence counsel or 'friend' of the accused.
It is customary, though not obligatory, for the witnesses to be present in court from the
time when the accused is brought in until after the members have been sworn; they
must then withdraw and should not, as a rule, be allowed to be in the court when not
under examination.

40. Opening of court. —The court is now open, and the public whether military or
otherwise (including the press) may be admitted so far as accommodation permits. It
may be closed at any time to enable the members to deliberate in closed court (AR.80).
The Court-Martial is an open court like other Courts of justice, but it has inherent powers
to sit in camera if such course is necessary for the administration of justice.

41. Objection by the accused to members of the court. —The convening order will next
be read in full by the presiding officer or JA (if any) and the members will answer to their
names (AA.s.130 and AR.44). The accused will be asked whether he objects to be tried
by any officer sitting on the court.
The AA and AR contain elaborate provisions as to the mode of enquiring and disposing
of objections by or on behalf of the accused. If, upon a successful objection to a
member, no waiting member, who is eligible and qualified, is available to fill the
vacancy, the court should normally adjourn; but may proceed with the trial in certain
circumstances, provided that there is a legal minimum of members present (AA.s.130,
ARs 38 & 44).
Where, upon a successful objection to a member of the court, an adjournment is
necessary, the convening officer can, if he pleases, convene a new court (AR 38(2)).
An accused has no right of objection to the prosecutor, J A or an officer under
instruction.

42.Trial. of more than one accused. —Where more than one accused is ordered in one
convening order to be tried by the same court, but on separate charge-sheets, they may
all be brought before the court for the reading of the convening order. Each accused
person shall have power to object to the members of the court and shall be asked
separately whether he objects to any member (AR 89).

43.Swearing of court, judge advocate etc. —As soon as the court is finally constituted,
the presiding officer will direct all persons to stand. The presiding officer, members, JA
(if any) and officers under instruction will be sworn or affirmed, the shorthand writer and
interpreter (if any) will also be sworn or affirmed at this stage, though a shorthand writer
and interpreter may be sworn at any time during the trial. The accused has a right of
objection to a shorthand writer or interpretor (AR 90(3)).
The form of oath or affirmation and the manner of taking it by all persons required to be
sworn or affirmed and the persons who are to administer it are given in AR. Provision is
also made whereby an oath or affirmation may be taken in such form as the court
ascertains to be binding on the person's conscience (ARs.45, 47, 109 and 140).

44.Absence of members during trial. —A member of the court who has been absent
during any part of the evidence ceases to be a member, and an officer cannot be added
to a court-martial after the accused has been arraigned (AR 86(2)).
(viii) Arraignment of Accused

45. Reading of charges. —As soon as the members, JA (if any) and others have been
sworn, the accused will be arraigned on the charges contained in the charge-sheet.
The arraignment consists of the reading of each charge separately to the accused and
asking him whether he is guilty or not guilty of it (AR 48). The JA or where there is no
JA, the presiding officer conducts the arraignment.
If there are several charges in one charge-sheet, the accused may claim separate trial
on each or any one charge on the ground that unless so tried he will be embarrassed in
his defence (AR 79(5)).
If there are alternative charges in one charge-sheet and the accused pleads guilty to the
first of such alternatives,the prosecutor may withdraw the other alternative charge or
charges before the accused is arraigned upon them; otherwise the accused will be
arraigned upon all the charges whether they are alternative or not (AR 52(3)).
If there is more than one charge-sheet the court must not arraign the accused upon any
subsequent charge-sheet until the finding upon the first charge-sheet has been arrived
at (AR 79(1)).
The accused, if charged jointly with any person whom he claims as a material witness
for the defence, may apply if he has not already done so to be tried separately from that
person, and the court may grant separate trial if the nature of the charge permits ( AR
35(4)).

46.Plea to the jurisdiction. —An accused, before pleading to any charge may offer a
plea to the general jurisdiction of the court and give evidence in support of that plea.
The court will decide this question of jurisdiction in the same manner as any other
question. If the plea is over-ruled, the court will proceed with the trial; if it is allowed the
court must record its decision and the reason therefor, report to the convening officer
and adjourn. Such decision is not subject to confirmation and the convening authority
should either forthwith convene another court for the trial of the accused, or order his
release. If in doubt as to validity of the plea, the court may either refer the matter to the
convening authority or record a special decision and proceed with the trial (AR.51). A
plea to the jurisdiction is a plea to the right to try the accused on any charge as distinct
from a plea which relates to a particular charge.

47. Objection to charge. -Before pleading to any charge the accused may object to it on
the grounds that it does not disclose an offence under the AA or as not being in
accordance with the AR. If the court, disallows the objection the trial will proceed; if it
allows it, it will or if in doubt, it may, adjourn to consult the convening authority who may
amend the charge and direct that the trial be proceeded with (AR.49).
The court may always itself amend a mistake in the charge-sheet so far as it relates to
the name and description of the accused but not otherwise (AR.50(1)).
Apart from any objection by the accused, the court has power, before any witnesses are
examined, to report its opinion as to any charge which may appear to it to be faulty, to
the convening authority, who may either amend the charge or direct a new trial to be
commenced (AR 50(2)).

48.Recording of plea; refusal to plead, insanity etc. —The plea and objection referred to
in the two preceding paragraphs having been disposed of (if raised), the accused's plea
to the charges upon which he has been arraigned will be recorded; this will normally be
'guilty' or 'not guilty'. But the accused may refuse to plead or plead unintelligibly, in
which case a plea of 'not guilty' must be recorded (AR.52(1)); or it may be urged that the
accused is unfit to plead by reason of insanity for which event AA and AR make
provision (AA.ss.145 to 149 and AR.145).

49.Plea in bar of trial. —In addition to pleading 'guilty' or 'not guilty' the accused may
offer a plea in bar of trial on the ground that—
(a) he has been previously convicted or acquitted of the offence by a competent
Criminal Court or Court-Martial; or
(b) he has been dealt with summarily under AA.ss.80, 83, 84 and 85 as the case may
be, for the offence; or
(c) a charge in respect of the offence has been dismissed as provided in AR.22(2); or
(d) the offence has been pardoned or condoned by competent military authority; or
(e) the time which has elapsed between the commission of the offence and the
commencement of trial is more than 3 years, and the time limit for trial is not extended
under AA.s.122.
Upon the hearing of this plea evidence may be offered both by the accused and
prosecutor and addresses may be made. If the court finds the plea not proved, it will
proceed with the trial; if it finds it proved, it will record its finding and notify the same to
the confirming authority and adjourn, though it may proceed with any other charge not
affected by the plea. In either case its finding on the plea requires confirmation (AR.53).

50. Plea of guilty. —If the accused pleads 'guilty' to a charge, the presiding officer or JA
(if any) must, before recording the plea, carefully explain to him the nature of the charge
and the effect of his plea. It should also be pointed out to him that on a plea of 'guilty'
there will be no regular trial but merely a consideration by the court of the sentence to
be awarded, that he is entitled to make a Statement in mitigation of punishment and.
call witnesses as to his character (AR.52(2)). He should also be informed that if he
wishes to prove provocation or extenuating circumstances having direct relation to the
Offence he should plead 'not guilty'.
Where an accused pleads guilty not to the offence charged but to an offence which the
court after trial could have found him guilty or guilty subject to variations and exceptions
under AR.62(4) and (5), the court may {instead of altering the plea to one of not guilty)
accept such plea of guilty if it is satisfied of the justice of such course and the
concurrence of the convening officer is signified by the prosecutor; provided, however,
failure to obtain the concurrence of the convening authority will not invalidate the
proceedings, when confirmed (AR 62 (9)),
The court cannot accept a plea of 'guilty' in a case where the accused is liable, if
convicted, to be sentenced to death; in such a case a plea of 'not guilty' will be recorded
(AR 52(4)).

51.Mixed plea.—-If the accused adheres to his plea of 'guilty', the court will then
proceed to try the accused upon any other charge upon the same charge-sheet to
which he has pleaded 'not guilty' and reach its finding thereon before proceeding further
with the plea of 'guilty' (AR 54(1)). The AR make special. provisions in the case where
the accused pleads guilty to the first of two or more alternative charges (ARs 52(3) and
54(2)).

52.Procedure on plea of guilty-. When the court proceeds with a plea of 'guilty' the
summary (or abstract) of evidence will be read and sufficient evidence will be recorded
to cover any deficiencies in the summary (or abstract). The accused may make a
statement in reference to the charge and in mitigation of punishment, and witnesses as
to character may be called (AR 54(4) and (7)).
If from the statement of the accused or from the summary (or abstract) of evidence or
otherwise, it appears to the court that the accused did not understand the effect of his
plea, the court must enter a plea of 'not guilty' and proceed with the trial (AR 54(5)).
The procedure in connection with taking evidence of character of the accused and the
particulars of his service and the consideration and award of sentence is dealt with in
paras.80 to 87 below.

53.Duties of Presiding Officer.-The presiding officer is responsible for the proper

conduct of every trial whether the accused pleads 'guilty' or 'not guilty'. He must ensure
that the accused does not suffer any disadvantage by reason of the fact that he is being
tried or because of his ignorance or incapacity to make clear either his defence to the
charge or the grounds upon which he relies in mitigation of any punishment which may
be awarded (AR 76).
(ix) Trial on plea of not guilty

54.Adjournment of trial on pica of not guilty.- Before proceeding with a trial on a plea of
not guilty, an accused will he asked whether he wishes to apply for an adjournment on
the grounds that he has been prejudiced by non-compliance with any of the rules
relating to procedure before trial or that he has not had sufficient opportunity to prepare
his defence. If the court considers that he has been prejudiced either by non-
compliance with any of the rules or because he had not had time to prepare his
defence, it will grant an adjournment, if the interests of justice so require (AR 56(1) and
(2)).

55.The prosecutor should always make an opening address if the case is a complicated
one, and the court may require such address to be made. He should explain the
substance of the charge and outline the proposed evidence to be called in support of it
(AR 56(3)).
The prosecutor is not a partisan but an officer of justice whose duty it is, by laying all
relevant facts in evidence before the court, to assist the court in ascertaining the truth.
He must act with scrupulous candour, fairness and moderation towards the accused,
the witnesses and the court (AR.77(1),(2)). Any departure from this rule of conduct
should at once be checked by the court.

56. Witnesses for prosecution.-The witnesses for the prosecution will now be called.
Each witness will take the necessary oath or make the required affirmation (AA.s.131
and AR.140). This provision will not, however, apply where the witness is a child under
twelve years of age and the court-martial is of opinion that though the witness
understands the duty of speaking the truth, he does not understand the nature of an
oath or affirmation (AA.s.131(3)).
The examination of the witness will be conducted by the prosecutor who must be careful
to refrain from asking leading questions. After giving evidence "in-chief" the witness may
be cross-examined by the defence and after such cross-examination he may be re-
examined by the prosecutor on matters arising out of cross-examination (IEA.s.137).
At the conclusion of the examination, cross-examination and re-examination, the
presiding officer, JA (if any) and with the permission of the court any member of the
court may question a witness at any time before he withdraws, but such questions
should not be put until after the re-examination by the prosecutor; and the prosecutor
and the defence may ask any questions through the court arising out of such
examination (AR.142).
The members of the court should be careful when questioning a witness to ensure that
they do not ask any questions which might result in inadmissible evidence being given.
If any objection is taken to a question by the witness, the court or the opposite party, the
objection will be dealt with at the same time (AR.88). The court may order the witness to
leave the court when the matter is discussed.
57. Recording of evidence. —As a witness gives his evidence, it must be translated (if
not in English) and taken down in narrative form in the first person in as nearly as
possible the words used; occasionally, it may be material or desirable to take down
questions and answers verbatim. If there is no shorthand writer the JA or if there is
none, the presiding officer must record the evidence or cause it to he recorded, and is
responsible for its accuracy and the proceedings as a whole (ARs 91 and 92).

58. Interpreter,. —Where an interpreter is employed, great caution should be exercised

to ensure accurate translation, and to guard against misconception of the true meaning
of any expression, from either the incompetence or possible bias of the interpreter.
A member of a court-martial is not disqualified from acting as interpreter, but this is
inconvenient where the evidence requiring interpretation is likely to be prolonged.

59. Reading over the evidence. —Before a witness withdraws, the whole of his
evidence as recorded shall be read to him if he so requests; he may then make further
explanations or corrections (AR 141(2)). Where evidence is recorded by shorthand
writer, it shall not. be necessary to read the evidence of the witness to him if in the
opinion of the court and the JA (if any) it is unnecessary so to do (AR 141(5)).

60. Plea of no case. —At the close of the case for the prosecution the defence may
submit that the evidence adduced does not disclose a prima-facie case, against the
accused and he should not, therefore, be called upon for his defence. The prosecutor
may answer the submission and the defence may reply. If a JA is present, he may, if he
thinks it necessary sum-up on the submission. The court will then close to consider the
submission, the JA, if any, being present AR 57.
If the court allows the submission it will record a finding of 'not guilty' in respect of any
one or more charges, to which the plea related. If the court over-rules the submission it
will proceed with the trial. The submission will not be allowed if the court could on the
evidence adduced, bring in a special finding.

61. Opening of defence. —At the close of the case of the prosecution, and after the plea
of no case, if any, has been disallowed, the accused will be asked if he intends to call
any witnesses either as to the facts or as to character; and his answer will be recorded.
If the accused states that he does not intend to call any witnesses as to the facts of the
case, the accused may make a statement giving his account of the case; such
statement may be made orally or in writing but no oath shall be administered to the
accused. The court or the JA, if any, may question the accused for the purpose of
enabling him to explain any circumstances appearing in his statement or in the evidence
against him. The accused shall not render himself liable to punishment by refusing to
answer such questions or by giving answers to them which he knows not to be true; but
the court may draw such inference from such refusal or answers as it thinks just (AR
58(2)(a)).The accused may, if he wishes, call witnesses as to his character AR 58(2)(b)

62. Procedure on case for the defence. - If the accused states in answer to the question
referred to in the preceding para, that he intends to call witnesses as or in writing but no
oath shall be administered to the accused. The court or JA outlining the facts which it
intends to prove (AR 59(a)).

63. Evidence for the defence. —The accused may then make a statement giving the
subject of the charge against him; the statement may be made orally or in writing but no
oath shall be administered to the accused. The court or JA (if any) may then question
him as outlined in para 61 above (AR 59(b)).
The accused shall then call his witnesses including if he so desires any witnesses as to
character (AR 59(c)).

64.Recalling of witnesses.—At the request of the prosecutor or accused and by leave of

the court, a witness may be recalled at any time, for the purpose of having further
questions put to him through the presiding officer or JA (if any) (AR 143(1)). The court
may also allow the prosecutor to call or recall a witness to rebut any material statement
made by a witness for the defence or for the purpose of giving evidence on any new
matter which the prosecutor could not have reasonably foreseen (AR 143 (2)) or as a
reply to the witnesses to character called for the defence, to prove previous convictions
against the accused (AR 143(3)). In all these cases the additional evidence must be
given before the closing address by or on behalf of the accused.
The court may of their own motion, call or recall any material witness if it is necessary to
do so in the interests of justice; such witness may be called or recalled at any time
before the finding of the court is arrived at (AR 143(4)).

65. Withdrawal of plea of not guilty. —An accused person is at liberty. at any time, to
withdraw a plea of 'not guilty' and plead 'guilty' (AR 55).

66. Closing addresses. -—The order in which the prosecutor and defence addresses
the court depends on whether the accused calls witnesses to the facts. The procedure
is laid down in ARs 58 and 59. Where the accused does not call witnesses to facts, the
defence has the right of reply.

67. Latitude to accused in defence. —The accused must be allowed great latitude in
making his defence, and will not, within reasonable limits be stopped by the court
merely for making irrelevant observations.
In no case may the prosecutor or defence in the course of an address state as a fact
any matter which has not been proved.

68. Summing up by judge advocate. —When the closing addresses have been given,
the JA (if any) will sum up the evidence and advise the court upon the law relating to the
case (ARs 60 and 105(5)). After the summing up of the JA, no other address will be
allowed. All addresses by the prosecutor and the defence and the summing up of the JA
may either be given orally or in writing, and if in writing, shall be read in open court ( AR
144). As a rule the summing up of the JA should be in writing.

69. Time and place of trial. —ARs80, 81 and 82 lay down for the sitting of the court,
hours of sitting and adjournment respectively.
70. Views. —Where a court considers it necessary to view any place it may do so at any
time before finding (AR 82(2)), but there must be present at such view not only the
presiding officer and member of the court and the JA, if any, but also the prosecutor, the
accused and his defending officer or counsel.
(x) Deliberation of finding

71. Finding in closed' court. - The finding must be deliberated in closed court, the
members, JA (if any), and officers under instruction alone being present {AR 61(1)). The
court must record a finding on every charge upon which the accused is arraigned,
including any alternative charge (AR 62(1)).

72. Onus of proof reasonable doubt, corroboration. —At the outset of its deliberations
the court must remember that the accused is presumed to be innocent until he is proved
to be guilty, and that the burden of proof rests upon the prosecution. Unless, therefore,
the guilt of the accused is established beyond a reasonable doubt, the accused must be
acquitted, as the prosecution has failed to sustain adequately the burden of proving his
guilt.
It is legally open to a court to convict an accused person upon the evidence of one
credible witness. But in some cases corroboration of such witness is required, by
practice almost amounting to a rule of law; in others it is desirable that corroboration
should be looked for, though not actually required by law or practice.

73. Extraneous consideration. —The court, in considering its decision must not be
influenced by the consideration of any supposed intention of the convening authority in
sending the accused for trial by a particular kind of court-martial. In many cases the
convening authority will have decided no more than a prima-facie case against the
accused is shown upon the summary of evidence and he will have formed no opinion as
to the guilt of the accused. An acquittal, therefore, is not in itself a reflection upon the
convening authority. Even if it were, it would afford no reason whatever for a court to
convict, unless the evidence establishes the charge.

74. Proof of facts charged; special finding on the charge. —The court must decide
whether the facts alleged in the particulars of each charge have been proved in
evidence, and if proved, whether they disclose the offence stated in the charge itself or
an offence which it may, pursuant to its powers under AA.s.139, find the accused guilty.
Thus on a charge of desertion, it may find the particulars as to the period of absence
proved, but not the intent to leave the service altogether or to avoid some particular
important duty-a necessary ingredient of the charge, in such a case, it may return a.
finding of not guilty of desertion, but guilty of absence without leave (AA.s.139(1)).

75. Special findings as to the particulars of a charge. -—Where the court finds what the
facts proved in evidence differ materially from the facts alleged in the particulars of a
charge, but are nevertheless. sufficient to prove the offence charged, and the difference
is not so material as to have prejudiced the accused in his defence, it may record a
special finding as to the particulars. Thus, on a charge of desertion, if the court is
satisfied that the charge as laid is proved, but the period of absence is shorter than that
alleged in the particulars, it may make special finding to that effect (AR 62(4) and (5)).

76. Reference to Confirming Authority before finding. —If the court doubts whether the
facts proved show the accused to be guilty of the offence charged or of any other
offence of which he may be found guilty under the AA, before recording its finding it may
refer the matter to the confirming authority, setting out the facts which it finds proved.
The court may follow similar procedure in respect of alternative charges (AR 62(3} and
(8)).

77. Voting on the finding. Every member must give, by word of mouth, his opinion as to
the finding which should be made on each charge separately (AR 87(1)). The opinions
must be taken in succession beginning with the member lowest in rank (AR 87(2)). If the
votes given are equal the accused will be deemed to be acquitted. The presiding officer
has no second or casting vote upon the finding. The majority of votes will decide the
issue, and the finding of the majority will be recorded as the finding of the court
(AAs.132(1)).
The finding on each charge shall be announced forthwith, in open court as subject to
confirmation (AR 62(10)).

78. Acquittal.—A finding of acquittal by a court-martial (other than SCM), whether upon
all or any one or more of the charges in the charge-sheet is not valid until continued by
the confirming authority (AA.s.153), and it may be revised (AA.s.160).
The record of the proceedings in the case of an acquittal upon the charges in a charge-
sheet will be authenticated by the signatures of the presiding officer and A (if any) and
forwarded to the confirming officer (AR 63).

79. Guilty but of unsound mind.--Where the court finds that the accused is guilty of the
offence charged but was by reason of unsoundness of mind incapable of knowing the
nature of the act or knowing that it was wrong or contrary to law, the court shall record a
finding accordingly (AAs.145(1)), and the presiding office shall forthwith report the case
to the confirming officer (AAs. 145(2)). If the confirming officer does not confirm the
finding, he shall take steps to have the accused tried by the same or another court-
martial for the same offence (AA.s.145(3)).
(xi) Proceedings on conviction

80. Evidence as to character and service—If the finding upon any charge is guilty
(whether or not the accused has pleaded guilty thereto) and the trial in respect of all
charges and charge-sheets has been completed, the court for the purpose of
determining its sentence, shall, whenever possible, take evidence of and record the
general character, age, service, rank and any recognised acts of gallantry or
distinguished conduct etc., of the accused.
This evidence must be given by a witness on oath or affirmation, usually the prosecutor,
who will produce extracts from the regimental books relating to the accused in
accordance with the Rules. The accused or his representative may then cross-examine
this witness. Oral evidence of bad character cannot be given for the prosecution.
The accused may call evidence as to his good character at this stage, as well as during
the hearing of the case for the defence, and the prosecutor has the right of cross-
examination to test the veracity of such evidence, even if he thereby brings out
evidence of the accused's bad character.
After all the evidence as to character has been given, the accused or his representative
may address the court thereon and in mitigation of punishment (AA.s.144 and AR
64(4)).
The court will then be closed for consideration of sentence.

81. Postponement of sentence.—Where several accused are tried separately by the

same court on charges arising out of the same transaction, the court may, if it considers
it desirable in the interests of justice, postpone consideration of any sentence to be
awarded to any one or more persons until the trials of all such accused persons have
been completed (AR 89(4)).
(xii) Award of sentence

82.Legality and form of sentence.—The punishment awarded must be one of those

allowed by the AA (AA chapter VII), in some cases a combination of punishments is
permitted by AA (AA.s.73).
One sentence only must be awarded in respect of all the offences of which an accused
person has been found guilty, even if the trial has proceeded on different charge-sheets,
and where an accused person has been found guilty on several charges, a sentence
which can legally be awarded in respect of one of them will be valid not-withstanding
that it could not legally have been awarded in respect of the others (AR 65).
The sentence should follow the prescribed forms set out in Appendix III to ARs; or, if no
form is exactly applicable, it should follow as nearly as possible the words of the AA.

83. Discretion as to sentence.—A court-martial has (except in the case of an obligatory

punishment for an offence under AA.s.69 e.g., murder) an absolute discretion as to its
sentence. It may award the maximum punishment prescribed for the particular offence
charged or such less punishment as is laid down in AA.s.71, which sets out a graduated
scale of punishments which a court-martial may- award (AA.s.72).

84. Considerations affecting sentence.—A court-martial awarding punishment should

take into consideration the following points:-
(a) The maintenance of discipline: The proper amount of punishment to be inflicted is
the least amount by which discipline can effectively be maintained; occasionally the
exigencies of discipline, apart from the circumstances of the case may render a severe
sentence necessary, but in all cases the whole force should be in a position to realize
that the punishment awarded to an individual is not more than is necessary in the
interests of the force itself and for the maintenance of that discipline, without which any
body of troops must become an irresponsible mob and useless for the purpose for
which it exists. It must be the object of all concerned to aim at that high state of
discipline which springs from a military system administered with judgment and
impartiality and to induce in all ranks a feeling of confidence that, while no offence will
be passed over, no offender will in any circumstances suffer injustice.
(b) Degrees of criminality: A NCO should be dealt with more severally than a sepoy;
where several offenders are found guilty of the same offence it may be proper to award
different amounts of punishment.
(c) Premeditation:An accused who has clearly made long preparation to commit some
crime should be more severely punished than one who has acted on the spur of the
moment.
(d) Provocation:While provocation is no defence to a charge the court will no doubt take
this matter into consideration.
(e) Previous convictions: An habitual offender deserves more punishment than an
infrequent offender, and a first offender if possible be treated leniently.
(f) Prevalence of offence : Military offences must sometimes be considered in reference
to circumstances other than those connected with the individual offender. When there is
a general prevalence of offences or of offence of a particular kind, an example may be
necessary, and on that account a severe punishment may properly be awarded, in
respect of an offence which would otherwise receive a more lenient punishment. In such
cases the punishment must be regarded more from the point of view of the effect which
it will produce on the force to which the offender belongs than that of the offender
himself.
The court must always award such punishment as the members consider to be just and
proper and must not presume that (he convening authority, in sending the case for trial,
took a more serious view of the facts.

85. Recommendation to mercy.—The court may, in awarding sentence, make a

recommendation to mercy, but in view of the discretion of the court in the matter of
awarding sentence, such a recommendation would he unusual, except in cases where
the court can award only one punishment. If such recommendation is made, it must
form part of the proceedings and the reason for it must be recorded (AR 66).

86. Voting on the sentence.—Every member of the court must give his opinion as to the
sentence to be awarded, even if he had voted for an acquittal upon the finding. The
officer junior in rank must first give his opinion, In the case of an equality of votes, the
decision must be in favour of the accused. The presiding officer has no second or
casting vote upon the sentence. An absolute majority of the opinions of the members
must be secured (AA.s.132); a sentence of death cannot be passed by a GCM without
the concurrence of at least two-thirds of the members. A sentence of death cannot be
passed by a SGCM without the concurrence of all the members (AA.s.132).

87. Announcement of the sentence.—The sentence together with recommendation to

mercy, if any, and the reasons for such recommendation will be announced in open
court as subject to confirmation (AR 67).
Upon the court awarding the sentence, the record will be dated and signed by the
presiding officer and JA (if any). The JA or if there is none, the presiding officer, will then
forward the proceedings to the DJAG or AJAG of the command in cases of trial by GCM
and direct to the confirming authority in cases of trial by DCM; who must in all cases
where the sentence is dismissal or above seek advice of the DJAG or AJAG of the
command before confirmation (AR 69).
(xiii) Confirmation and revision

88. Conviction not valid until confirmation.—A finding of a GCM or DCM and the
sentence consequent thereon arc not valid until confirmed (AA.s.153)).
Until promulgation has been effected, confirmation is not complete and the finding and
sentence shall not be held to have been confirmed until they have been promulgated
(AR.71).

89. Confirmation of GCM, DCM.—The finding and sentence of a GCM are to be

confirmed by the Central Government or by any officer empowered in this behalf by
warrant of the Central Government (AA.s.154).
The finding and sentence of a DCM are to be confirmed by any officer having power to
convene a GCM or by any officer empowered in this behalf by warrant of such officer
{AA.s.155).
Authority to confirm given by warrants may contain such restrictions, reservations or
conditions as the issuing authority may think fit. The warrants at present issued under
AA are explained in paras 6 and 7 above. A member of a court-martial or an officer who
acted as a prosecutor at a court-martial cannot confirm the finding or sentence of that
court-martial (AR 74). Similarly, an officer who as the CO investigated the charges or
who for the time being is the accused's CO should not confirm the finding or sentence
(see Regs Army para 471).
If proceedings are confirmed in error by an officer not having power to confirm, his act
and the subsequent promulgation are null and it is open to the proper authority to
confirm.

90. Confirmation of findings and sentences on board a ship.-When any person is tried
and sentenced by a court-martial while on board a ship, the finding and sentence if not
confirmed and executed on board the ship, may be confirmed and executed at the port
of disembarkation (AA.s.159).

91.Revision of finding and sentence.—Upon receipt of proceedings the confirming

authority, before confirming, may direct the re-assembly of the court for the purpose of
revising their finding and sentence or either of them. Only one revision can be ordered
or made. If the court is directed to take fresh evidence, such evidence must be taken in
open court and in the presence of the accused (AA.s.160, AR.68).
If the finding is sent back for revision and the court does not adhere to it, it must revoke
it and record a new finding. If the finding is revoked, it must also revoke the sentence,
and, if the new finding involves a sentence, (ie., is not an acquittal) must pass a new
sentence.
If the sentence only is sent back for revision, the court may not revise the finding. In
practice revision of sentence only (unless it is intended to increase the punishment) is
seldom necessary in view of the powers of the confirming officer.
Both the new finding and sentence awarded, if any, must be announced in open court
as being subject to confirmation.
92. Non-confirmation and: retrial.—As the finding and sentence of a GCM and DCM are
not valid until confirmed (AAs.153) a refusal of confirmation duly entered upon the
proceedings, operates to annul the whole trial. In such a case the accused has not been
acquitted or convicted and may legally be tried again; but re-trials should rarely be
resorted to, unless the needs of discipline and justice demand that an offender shall not
escape punishment on account of a legal technicality. It must be remembered that if an
accused at the trial has disclosed his defence, that defence at the second trial may
thereby be prejudiced. Re-trial should not be ordered until the DJAG or AJAG of the
command had been consulted and the sanction of superior authority obtained. If the
confirming authority considers that the proceedings of a court-martial are illegal or
involve substantial injustice to an accused person, he will withhold its confirmation.
It is open to the confirming officer to withhold confirmation, either wholly or in part, and
then refer the proceedings to a superior authority competent to confirm them (AR.70).

93. The confirming authority has no power to alter or amend the finding, whether
original or revised of a court-martial. After one revision or if he does not order a revision,
he can only confirm it or refuse confirmation, and any superior authority to whom he
may refer the proceedings for confirmation is in the same position.
Similarly, the confirming authority cannot alter the finding on a plea in bar of trial or on a
finding of insanity, both of which require confirmation to support their validity.
Where the confirming authority refuses confirmation of the finding of guilty on some but
not on all charges, he must take into consideration the fact of such non-confirmation
and mitigate etc., the sentence as may seem just, having regard to the offences in the
charges, the findings on which he has confirmed (AR 72).

94. Power of confirming authority over sentences.—The following are the powers of the
confirming authority with relation to the sentences of court-martial whether or not they
have been revised: —
(a) Mitigation of punishment to a less amount of the same punishment (AA.s.158 and
AR 72).
(b) Remission of the whole or part of a sentence (AA.s.158 and AR.72).
(c) Commutation of the punishment to a different form of punishment lower in the scale
of punishments authorised in AA.s.71 (AA.s.158 and AR.72).
(d) Variation of a sentence informally expressed, or which is in excess as regards its
duration of the punishment allowed by law (e.g., three years' imprisonment awarded by
a DCM) (AR 73).
(e) Suspension of the execution of the sentence (which will, however, be in force during
the suspension). This power can only be exercised by the Central Government, the
COAS or any officer empowered to convene a GCM or SGCM, and only where the
sentence awarded is one of imprisonment. If the confirming authority is not one of the
authorities mentioned above, he can direct that the offender shall not be committed until
the orders of such authority have been obtained (AA.ss.182 and 183).
(f) In the case of sentences of imprisonment not combined with dismissal the
confirming authority may direct that the sentence shall be carried out by confinement in
military custody or military prison (if it has been established). Unless a direction to this
effect is given, the offender has to be committed to a civil prison (except on active
service) which is most undesirable in the case of a person who is to return to duty after
undergoing his punishment. Sentences of imprisonment, combined with dismissal
should, as a rule, be undergone in civil prison.
(xiv) Promulgation

95. Promulgation of finding etc.—The charge, finding and sentence and any
recommendation to mercy must be promulgated to the accused as well as the
confirmation and non-confirmation of the proceedings. Promulgation must be Carried
out in such manner as the confirming authority may direct; and if no direction is given,
according to the custom of the service. Also see Regs Army para 472.
As confirmation is not complete until promulgation the confirming authority may always
alter its minute of confirmation or non-confirmation before the proceedings have been
promulgated; (AR 71).
(xv) Procedure after promulgation

96. Setting aside conviction.—Even after promulgation, the authority who confirmed the
finding and sentence (or any authority superior to him) on the advice of the DJAG or
AJAG, may direct the record of the conviction to be erased and the accused to be
relieved of all consequences of his trial if he thinks that the proceedings are illegal or
that circumstances have arisen which show that the accused could not have been
guilty, or that the conviction involves substantial injustice to the accused (AA.s.165).
When the conviction on any one but not all the charges has been annulled, the authority
having power to mitigate etc., the sentence under AA.s.179, must take into
consideration the fact of such annulment, and mitigate etc., the sentence as may seem
just having regard to the offences the convictions on which have not been annulled (AR
72).

97.Substitution of valid for invalid finding or sentence.—If after promulgation a finding is

found to be invalid the authority which would have had power under AA.s.179 to
commute the punishment awarded by the sentence if the finding had been valid, may
substitute a new finding and pass a sentence specified or involved in such finding,
provided, however, no such substitution shall be made unless such finding could have
been validly made by the court-martial on the charge and unless it appears that the
court-martial must have been satisfied of the facts establishing the said offence.
If after promulgation a sentence passed by a court-martial, not being a sentence passed
in pursuance of a new substituted finding, is found for any reason to be invalid, the
authority referred to in the sub-para above may pass a valid sentence. The punishment
awarded by a sentence passed after substitution of a new finding or sentence shall not
be higher in the scale of punishments than or in excess of the punishment awarded by,
the sentence for which a new sentence is substituted (AA.s.163).

98.Mitigation etc., after confirmation.—After promulgation the punishment awarded can

only be mitigated, remitted or commuted by the authorities referred to in AA.s.179, and
suspended sentences can be remitted by the authorities referred to in AA.s.182.
99. Date from which sentence operates.—A sentence of imprisonment must be
reckoned to commence on the day on which the original proceedings (irrespective of the
revision, if any) were signed by the presiding officer of the court. If, therefore, a
sentence is ultimately confirmed and promulgated, it will probably have been running for
several days, although not yet put into actual execution (AA.s.167).

100. Custody of court-martial proceedings.—After promulgation, court-martial

proceedings (other than SCM proceedings) must be forwarded to the DJAG of the
command for transmission for the safe custody to the office of the JAG, where they
must be preserved for not less than seven years in the case of GCM or three years in
the case of SGCM and DCM (AR 146).
A copy of the proceedings shall be supplied (except where the Central Government
certified that it is against the interests of the security of the state or friendly relations with
foreign states) to any person tried by court-martial if he demands it (ARs.147 and
147A).

101. A person who considers himself aggrieved by the finding or sentence of a GCM,
DCM or SGCM may forward a petition to the confirming authority before confirmation
and after confirmation to the Central Government, COAS or any officer superior to the
one who confirmed such finding or sentence (AA.s. 164 and AR 201). In the case of a
SCM, the aggrieved person may present a petition to any officer, having power not less
than a brigade commander, superior to the officer holding the trial, the reviewing
authority through the usual channels (AR 201). Also see Regs Army para 364.
(xvi) Summary COURT-MARTIAL

102. The jurisdiction of a SCM is dealt with in paras 12 to 14 above. A CO is not

ordinarily competent to try by a SCM a charge for any offence specified in AA.s.120(2)
without the sanction of the superior authority. He may, however, do so if he considers
that there is grave reason for immediate action and reference cannot, without detriment
to discipline, be made to the officer empowered to convene a DCM or on active service
a SGCM. If he tries without reference such an offence, he must attach an explanatory
memorandum to the proceedings (AR.130). In all cases of indecency, fraud or theft
(except ordinary theft) and civil offences (except simple assault) and in any case of
doubt or difficulty, the charge-sheet and summary of evidence are to be submitted to the
DJAG or AJAG of the command before trial is ordered (Regs Army para 458).

103. When a CO applies to the officer referred to in para 102 above for sanction to hold
a SCM the summary of evidence and charge-sheet will be submitted with the
application. In forming his decision whether the case should be tried by SCM or by
some other tribunal the officer receiving the application should remember that the
powers of a SCM are sufficient to deal with all ordinary offences committed by persons
below the rank of WO. In the case of aggravated offences which appear to merit a
higher punishment than a SCM can award, a GCM or DCM may properly be convened,
and it is generally undesirable that a CO should try by SCM a case in which he has a
personal interest (AA.s.120). Sanction to try any offence by SCM may, however, legally
be given by the proper authority.
The officer receiving the application has a duty similar to that of a convening authority of
satisfying himself that the charge is properly framed and that the evidence is sufficient
to justify trial, and he may direct the CO to alter the charge or to obtain further evidence;
in a suitable case, he, may order the release of the accused or the case to be dealt with
summarily. The authority sanctioning trial by SCM will insert or cause to be inserted on
the charge-sheet his order for trial by that tribunal.

104. Preparation of defence by accused.—As soon as trial is ordered, proper

opportunity to prepare his defence must be afforded to the accused, who must be
allowed to have free communication with any witness whom he may desire to call and
with any 'friend' or legal adviser whom he may wish to consult if they are available (AR
33(2)).
As soon as practicable before he is arraigned for trial (and not less than ninety-six hours
or on active service twenty-four hours before such arraignment) an officer roust give him
a copy (and a translation thereof in a language which he understands, if so desired by
the accused) of the charge-sheet, and if necessary read and explain to him the charge-
sheet and charges. The officer in question must also inform him of his rights in
connection with the securing of witnesses on his behalf (AR 34).

105. Composition of SCM.—The CO of the accused, as defined in AA.s.3(v), alone

constitutes the court, but the presence throughout the proceedings of two other persons
who shall be officers or junior commissioned officers or one of either is essential to the
legality of the trial (AA.s.116). These officers or junior commissioned officers are not
sworn/affirmed, take no part in the proceedings and have no special duties, but the
officer holding the trial may consult them, if he so desires. The accused cannot object to
the court or interpreter.

106. Interpreter.—An interpreter will be appointed when any evidence is given in a

language which the court or the accused or an officer or junior commissioned officer
attending the trial does not understand (AR 107). If an interpreter has been appointed
he must take the interpreter's oath or affirmation though the proceedings arc not
necessarily invalidated by failure to swear or affirm the interpreter (AR 149). It will
generally be convenient that the officer holding the trial should (if competent to interpret
in the language of the accused) himself take the interpreter's oath or affirmation
prescribed for the court. If necessary, he can appoint a competent interpreter, who may
be one of the officers attending the trial.

107. 'Friend' of the accused and prosecutor.—An accused may be assisted by a 'friend';
but such 'friend' whether a legal adviser or not, may only assist the accused by
suggesting questions and preparing the defence; he is not allowed to examine or cross-
examine witnesses, personally address the court, or take any part in the proceedings
(AR 129).
A prosecutor is not appointed; the prosecution is conducted by the court.

108.Assembly of court and arraignment of accused.-When the court assembles, the

officer holding the trial i.e., the court and the interpreter, if any, will be sworn or affirmed
in the manner prescribed in the AR (AR 109). The accused will then be arraigned (AR
111) and may object to the charge (AR 112).At any time during the trial the court may
amend the charge-sheet in so far as it relates to the name and description of the
accused, and at any time before it has begun to examine witnesses it may amend a
defective charge and proceed with the trial, after giving the accused due notice of the
amendment, and with the sanction of higher authority if the amended charge requires
such sanction (AR 113).

109.Procedure on plea of guilty or not guilty and special pleas.—On a plea of 'guilty' or
'not guilty', if a special plea to the jurisdiction of the court or in bar of trial is offered, the
procedure laid down for a GCM or DCM is applicable with necessary modifications
(ARs114 to 118).
After all the evidence for the prosecution has been given the accused will be asked if he
has anything to say in his defence, and may address the court in his defence or may
defer such address until he has called his witnesses. The court may question the
accused on the case for the purpose of enabling him to explain any circumstances
appearing in his statement or in the evidence against him.
The accused may then call his witnesses, including witnesses to character (AR 118).
The court may, if it thinks it necessary in the interests of justice, call witnesses in reply
to the defence (AR.119).
commissioned officers are not sworn/affirmed, take no part in the proceedings and have
no special duties, but the officer holding the trial may consult them, if he so desires. The
accused cannot object to the court or interpreter.

110. Consideration of finding and procedure on acquittal and conviction:-The court must
make a finding on every charge upon which the accused has been arraigned, including
any alternative charge (AR 121(1)).
In considering the finding, the court must have regard to the considerations set out in
paras 73, 75 and 76 above.
If the finding upon all the charges in a charge-sheet is not guilty, the court will date and
sign the proceedings, the findings will be announced in open court and the accused will
be released (AR 122).
If the finding upon any charge is guilty, and the trial in respect of all charges and
charge-sheets have been completed, the court records of its own knowledge or takes
and records evidence of, the character, age, service etc., of the accused ( AR 123) and
sentence is awarded (AR.124).

111. Sentence.—In considering the sentence, the court must have regard to the
considerations set out in para 84 above and should bear in mind the general
instructions and normal scale of punishments contained in Regs Army para 448. ASGM
cannot award a sentence higher than one year's rigorous imprisonment, if the officer
holding the trial is of the rank of Lt Col and upwards, and three months if such officer is
below that rank (AA.s.120).
It is desirable that sentences of three months imprisonment or less awarded to a person
whose services it is desired to retain should be undergone in military custody; the court
should, therefore, have regard to AA.s.169(3) and while awarding such a sentence to
which no sentence of dismissal is added, direct that the sentence shall be carried out by
confinement in military custody. Unless a direction to this effect is given, the offender
has to be committed to civil prison (except on active service). Sentences of
imprisonment combined with dismissal should, as a rule, be undergone in civil prison.
Under AA.s.183(2), the officer holding the SCM may direct that an offender sentenced
to imprisonment be not committed until the orders of superior military authority have
been obtained.

112. Proceedings not open to revision and do not require confirmation.— The
proceedings of a SCM cannot be revised and do not require confirmation. The sentence
awarded by the court should, therefore, except as provided in AA.ss.161(2) and 183(2)
be put into execution forthwith, the offender being also committed, if the sentence is one
of imprisonment for three months or more to undergo the unexpired portion of any
former suspended sentence (AA.s.188(b)).

113.The proceedings must be forwarded for review (through the DJAG of the command
in which the trial is held) to the officer commanding the division or brigade within which
the trial is held or to the prescribed officer (AA.s. 162 and AR 133).
The reviewing officer should, if he considers that justice has been done and that
proceedings may legally be upheld, countersign the proceedings or a staff officer should
record that he has seen them, and he may enter thereon any remarks he may consider
to be called for or necessary for the future guidance of the officer who held the trial. If a
direction under AA.s.183(2) (regarding suspension of sentence) has been recorded, he
will, if he is himself a superior military authority, issue his orders thereon, or if not
himself a superior military authority, forward the proceedings for the orders of such an
authority. The reviewing officer can, for reasons based on the merits of the case, set
aside the proceedings or the conviction on one or more of several charges or reduce a
legal sentence to any other which the court might have passed. If the sentence is illegal
it may be treated as a nullity, and if invalid one of the authorities referred to in AA.s.163
can substitute a valid sentence. If he decides to treat it as nullity, he should when
countersigning the proceedings, set aside the sentence and direct that the accused be
relieved of all consequences of the sentence, though not of the conviction.
After review the proceedings will be returned to the corps to which the accused
belonged where they are preserved for not less than three years (AR 146(2)).
(xvii) Summary General Court-Martial

114. Composition and powers. —The court consists of three members (AA.s.115) and
has the same powers as a GCM (AA.s.118). The officers should have held commissions
for not less than one year, but, if any officers are available who have held commissions
for not less than three years, they should be selected in preference to officers of less
service (AR 151(2)).

115. SGCM in time of peace. —A court of this character is not suited to peace
conditions, but it may some times be necessary to convene such a court at a remote
station where a sufficient number of officers to constitute a GCM are not available. The
power to convene a SGCM in time of peace is restricted to officers empowered in this
behalf by an order of the Central Government or the COAS (AA.s.112(a)) and the officer
convening the court should direct that the evidence and the statement of the accused in
defence should be recorded in full, instead of in the abbreviated form allowed by
AR.160, the proceedings being thus assimilated, so far as circumstances permit, to
those of an ordinary GCM.

116. SGCM on active service. On active service a SGCM may be convened by: —
(a) the officer commanding the forces in the field, or any officer empowered by him; or

(b) an officer commanding any detached portion of the regular Army.

The last mentioned officer, however, can convene the court only when, in his opinion, it
is not practicable having due regard to the exigencies of the service to try the offence by
an ordinary GCM. Such opinion should be recorded in the order convening the court
(AA.s.112(b)and (c)).

117. Procedure. - A SGCM is subject to exceptional rules (ARs 151 to 165) under which
the procedure is or can be of a more summary character than that of an ordinary GCM.
But provision is made whereby a large number of the rules which are applicable to GCM
or DCM should be applied to a SGCM, so far as practicable having regard to the public
service (AR.164).
(xviii) Suspension of sentences

118. Suspension of sentence. —Where a sentence of imprisonment for life or

imprisonment has been awarded by a court-martial, the confirming authority when
confirming, if the sentence requires confirmation or the officer holding the trial, if the
sentence does not require confirmation, should consider whether the offender should be
committed to undergo his sentence or whether he should be kept in arrest pending the
orders of the authority or officer specified in AA.s.182(1) as to his commitment or
release under suspended sentence. If the said authority or officer has issued general
instructions under AA.s.182(2), that no person sentenced to imprisonment for life or
imprisonment shall be committed to prison or to military custody until his orders have
been obtained, the confirming authority or the officer holding the trial should defer
committing the offender to undergo his sentence until the directions of the authority or
officer specified in AA.s.182(1) have been taken. If the confirming authority or the officer
holding the trial decides to recommend the sentence tor suspension or is bound to refer
the case to the authority or officer specified in AA.s.182(1), he will record a direction on
the proceedings of the court-martial that the offender be not committed to undergo his
sentence until the orders of such authority or officer have been obtained (AA.s.182).
If the confirming authority is also competent to take action under AA.s.182(1), he may
dispense with the direction referred to above and forthwith issue orders as to
suspension of sentence.
The authority or officer specified in AA.s.182(1) may suspend a sentence at any time,
whether or not it has been put into execution and may order a suspended sentence into
execution, provided that the sentence is still running and that the offender is still subject
to the AA.
It should be noted that whether the sentence is put into execution or is suspended it will
run as from the date of award until it normally expires: suspension does not affect the
continuity of the sentence (AA.s.185).

119.The considerations which guide an officer in deciding whether or not it is advisable

to suspend a sentence immediately after trial are many and vary with the state of
discipline of the force under his command, the nature of the duties on which it is
engaged, and the character of the person concerned.
Suspension of sentences is primarily applicable to offences of a military nature only,
although in special cases it may be applied to offences of a civil character.
In all cases special attention should be directed to the following points: --
(a) the age and previous character of the offender;
(b) whether the offence is a first one;
(c) whether the offence was premeditated;
(d) whether the offender was at the time subjected to any special stress,fatigue,
disability or temptation;
(e) whether the offender was influenced by others older or of worse character than
himself.
On active service additional consideration may arise. For example some persons may
deliberately commit crimes in the hope that a long sentence may enable them to avoid
doing duty with their units, whilst others may commit grave military offences through
momentary loss of control over their nerves and without any wrongful intent. Each case,
therefore, must be considered on its merits, it being remembered, that the system of
suspension of sentence is designed, on the one hand, to ensure instant punishment for
those who properly deserve it, and on the other hand, to postpone, and often entirely to
avoid, punishment for those whose offences, though serious, are such as may in the
circumstances not call for immediate committal to prison; the power of suspension of
sentence places in the hands of the commander a means of clemency and within reach
of the offender an opportunity to redeem his character.
Upon review of an already suspended sentence other considerations arise. All that need
be considered then is the gravity of the offence of which the person was convicted, his
previous character and his conduct since conviction. As a general rule, it may be said
that the more grave the offence and the worse his character before conviction, the
longer is the period required to prove whether the person is honestly trying his best to
redeem himself and that only acts of conspicuous merit (such as bravery or devotion to
duty in action) would justify a remission of sentence without regard to the length of the
period during which it had been suspended.
Apart from such special acts, remission of sentence would be justified if the offender
has by his consistent good conduct really shown that he has done his utmost to retrieve
his character and become a good and efficient soldier. Promotion to the higher rank
should always be regarded as sufficient proof of good conduct to justify remission.
Unsatisfactory conduct subsequent to suspension will justify an order to put a
suspended sentence into execution, whilst a mere negative abstention from crime would
point to the advisability of directing a reconsideration of the sentence at a later date.
In considering a case, a report must always be obtained from the person's CO, which
should be attached with the person's conduct sheet for future guidance.
A person under a suspended sentence is to be regarded entirely as a free man, and is
to be placed under no disability whatever excepting only the liability of having his
suspended sentence put into execution if he misbehaves.

120. Procedure when case is referred to authority or officer specified in AA.s.182. —

When the authority or officer specified in AA.s.182(1) receives the proceedings of a
court-martial containing a recommendation for the suspension of the sentence, such
authority or officer will, to avoid undue delay, signal the decision to the CO concerned,
who will at once issue the necessary instructions. Until instructions are received from
such authority or officer, the offender cannot be committed to undergo his sentence.

121. Review of suspended sentences. -It is the duty of the competent military authority
to review suspended sentences at intervals of not more than four months. He may in his
discretion either keep a suspended sentence further suspended by ordering it to be
brought forward for reconsideration on a specified date not more than four months
ahead or refer the matter, if not himself the authority or officer specified in AA.s.182(1),
to such authority or officer with a recommendation either that the offender be committed
to undergo the unexpired portion of the sentence or that the sentence be remitted.

122. Dismissal combined with suspended sentence. —If a sentence of dismissal is

combined with a suspended sentence, the dismissal does not take effect until so
ordered by the authority or officer specified in AA.s.182(1) (AA.s.190). If the offender is
subsequently committed to undergo the unexpired portion of his sentence he should
ordinarily order the dismissal to take effect as provided in AR 168. If the sentence
remains suspended until it expires the dismissal, should be formally remitted under
AA.s.179.

123. Where a person already under a suspended sentence is awarded a further

sentence which is also suspended, the two sentences will run concurrently. If the further
sentence is not suspended and is for a period of three months or more, the offender
must also be committed on the unexpired portion of the previous (suspended) sentence,
but both the sentences will run concurrently. If the further sentence is for a period of
less than three months and is not suspended the previous sentence continues to be
suspended subject to any order which may he passed under AA.s.186 or 187
(AA.s.188).
CHAPTER V
EVIDENCE

(i) Introductory

1. Indian Evidence. Act applies to Court-Martial under Army Act. -The rules. of evidence
for courts-martial under the AA are contained in the Indian Evidence Act.1872 (Act of
1872) (Reproduced in Part III) and in certain provisions of the AA which deal with the
same subject (AA.ss.133, 134 and 140 to 144).
2.Questions to be determined at every trial.— The object of every criminal trial is or may
be to determine two classes of questions— questions of fact and questions of law. If the
accused person pleads guilty, there is no question of fact involved in the trial: but if he
does not, he raises two questions or issues —first whether the facts charged against
him happened; and next if they did happen, what is their legal consequences. In trials
before courts-martial, the members of the courts both find the facts and lay down the
law. It is their duty, when applying their minds to questions of fact, to consider
themselves bound by the rules of evidence above referred to. In deciding questions of
law, a court-martial should be guided by the advice of the JA (if one has been
appointed) and should not disregard it except for very weighty reasons (AR.105).

3. Nature of evidence.— A member of a court-martial is supposed to bring with him to

the consideration of the questions which he has to try common sense, and a general
knowledge of human nature and of the ways of the world. But he is not supposed to
bring with him any special knowledge enabling him to answer the particular questions of
fact raised in the trial. His knowledge of these matters is derived from what is proved to
him at the hearing. (But see AA.s.134 and IEA.ss.56 and 57, as to judicial notice). The
means of proof, or evidence usually consists of statements made by witnesses under
examination, or of documents, produced for inspection, and is, therefore, commonly
classified as being either "oral evidence" or "documentary evidence". But the members
of the court may. supplement by direct information the knowledge derived from these
sources. Thus, they may inspect for themselves anything sufficiently identified by
evidence and produced in court as material to their decision, or they may go to view any
place the sight of which may help them to understand the evidence (ARs 82, 128 and
163(1)) and they are also expressly authorised to make use of their general military
knowledge (AA.s.134).

4. Difference between judicial and non-judicial inquiries. — There is no difference in

principle between the method of inquiry in judicial and extra-judicial proceedings. In
either case a person who wishes to find out whether a particular event did or did not
happen tries, in the first place to obtain information from persons who were present and
saw what happened (direct evidence): failing that, he tries to obtain information from
persons who can tell him about facts from which he can draw an inference as to
whether the event did or did not happen (indirect evidence). But in judicial inquiries the
information must be on oath or affirmation, and must be liable to be tested by cross-
examination, and the Indian Evidence Act (IEA.s.5) by allowing evidence to be given
only regarding facts which are "in issue" or "relevant" excludes particular classes of
indirect evidence which an ordinary inquirer would naturally take into consideration.
Statements so excluded are said to be "not admissible as evidence".

5. Reasons for excluding certain classes of evidence. —The answer to the question why
particular statements, oral or written, should be excluded from evidence in judicial
inquiries is that their exclusion has been found by practical experience useful on various
grounds and notably on the following:
(a) It assists the court.
(b) It secures fair play to the accused
(c) It protects absent persons.
(d) It prevents waste of time.
It assists a court by concentrating its attention on the questions immediately before it
and preventing it from being distracted or bewildered by facts which either have no
bearing on the questions before it, or have so remote a bearing on those questions as
to be practically useless as guides to the truth, and from being misled by statements or
documents, the effect of which, through the prejudice which they excite, is out of all
proportion to their true weight. It secures fair play to the accused because he comes to
the trial prepared to meet a specific charge and ought not to be suddenly confronted by
statements which he had no reason to expect would be made against him. It protects
absent persons against statements affecting their characters. And, lastly, it prevents the
infinite waste of time which would ensue if the discussion of a question of fact in a court
was allowed to branch out into all the subjects with which that fact is more or less
connected.

6. "Proved". The definitions of "proved", "disproved", and "not proved" in IEA.s.3 should
be particularly noticed. These are: -
"A fact is said to be proved, when after considering the matters before it. the court either
believes it to exist or considers its existence so probable that a prudent man ought,
under the circumstances of the particular case to act upon the supposition that it exists.
"
"Disproved" —"A fact is said to be disproved when, after considering the matters before
it, the court either believes that it does not exist, or considers its non-existence so
probable that a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it does not exists. ";
"Not proved". - A Fact is Said not to be proved when it is neither proved nor disproved".

7. These definition to be borne in mind. Members of courts martial under the AA should
hear these definitions carefully in mind when deliberating upon their findings, and they
are fortunate in having so clear a guide in the performance of a most difficult duty.
(ii) What must be proved.

8. Charge must be proved. "-What must be proved, in order to obtain a conviction is the
particular charge brought. As a general rule, every charge alleges, or ought to allege, a
specific offence constituting a breach of a specific enactment; and, subject to certain
exceptions, it is of this offence, and this offence alone, that the person charged can be
convicted. The reason for the rule is the unfairness of requiring a person to meet a
charge for which he is not prepared. And the exceptions (AA.s.139 and Cr PC, 1973, ss.
221 and 222) will be found not to conflict with this reason, since they relate either to
cases where the distinction between two offences is mainly technical or a matter of
correct legal description; or to cases where the distinction is one of degree, but not of
kind, and the accused, having been charged with the more serious, is allowed to be
convicted of the less serious offence.

9. But its substance only need be proved- It is the substance only of the charge that
need be proved. Allegations which are not essential to constitute the offence, and which
may be omitted without affecting (he validity of the charge, do not require proof, and
may be rejected as surplus age. In some cases, as in charges against a sentry for
sleeping on his post, or in charges for not giving immediate notice of desertion, the time
or place of the offence is material, but, as a rule it is not so. Where the Court thinks that
the facts proved differ materially from the facts alleged in the particulars of the charge,
but prove the same charge, it is empowered by AR 62 (4) and (5) or 121(3)and:(4), as
the case may be, to record a special finding, instead of a finding of "Not Guilty".
(iii) Arrangement of the' Indian Evidence Act

10. Arrangement of the Act. —The law of evidence shows how a court may lawfully be
convinced that the facts alleged in the charge happened or that their happening was so
probable that it may be regarded as proved. The Indian Evidence Act deals with this
subject thus
(a) Part I and certain portions of Part III show what sort of facts may be proved in order
to produce this conviction in the minds of the court.
(b) Part II deals with the proof of facts, that is, what sort of proof is to be given of those
facts.
(c) The greater portion of Part III deals with the production of that proof, that is, who is to
give it, and how it is to be given.
The Indian Evidence Act states that evidence may be given of "facts in issue" and of
such other facts as are declared by it to be relevant" but of no
others. The test therefore as to the admissibility of piece of evidence is-does it state a
"fact in issue" or a "relevant fact" (as defined)? If it does, it is admissible: if not. it is
inadmissible.

11. Facts in Issue. —The facts which are ''in issue" in a criminal trial are those on which,
either by themselves, or in conjunction with other facts, the existence, non-existence,
nature or extent of the accused person's liability to punishment depends (IEA.s.3). For
instance, A is accused of the murder of B. At his trial the following facts may be in issue:
(a) That A caused B's death:
(b) That A intended to cause B's death.
(c) That A had received grave and sudden provocation from B:
(d) That A, at the time of doing the act which caused B's death was by reason of
unsoundness of mind, incapable of knowing its nature.
(iv) Relevant Facts

12.What evidence is admissible. - We have now to consider what facts are "relevant".
The Indian Evidence Act answers this question by enumerating these in the sections
which make up chapter II "of the relevancy of facts". If a fact is not included In this
enumeration of "relevant facts", it is inadmissible unless it is actually in issue, or its
admission is specially provided for elsewhere (IEA.ss.145, 146. 148, 153, 155, 156, 157
and 158) in the Act or by some other provision of law. (e.g., the special provisions as to
evidence contained in the AA and Bankers Books Evidence Act).

13. Circumstantial evidence. —Facts which are relevant or which are other wise
specially admitted constitute what is sometimes called "circumstantial evidence" of the
fact in issue with which they are connected. From the circumstances in which crimes
are ordinarily committed, it follows that the evidence of witnesses who directly saw the
main 'facts in issue' happen, can rarely be obtained and that in very many cases
reliance must be placed on circumstantial evidence. Such evidence is in no way inferior
to direct evidence, and is in some respects superior to it; for it has become a proverb
that "facts cannot lie", whilst witnesses may. On the other hand, it must always be borne
in mind that if facts cannot "lie", they may, and often do, deceive; in other words, that
the interpretation which they appear to suggest is often not that which ought to be
placed upon them. Therefore, before the court finds an accused person guilty on
circumstantial evidence, it must be satisfied not only that the circumstances are
consistent with the accused having committed the act, but that they are inconsistent
with any other rational conclusion than that the accused was the guilty person. In
assessing the circumstantial evidence, imaginary possibilities have no place. What is to
be considered is the ordinary human probabilities.

14. Relevant facts. —The kinds of "relevant" evidence most likely to be met with in
court-martial practice will be considered in the following paragraphs

15. Facts forming part of one transaction.-Facts which form part of the same transaction
as a fact in issue are relevant(IEA.s.6)
For example, A is accused of the murder of B by beating him. Whatever was said or
done by A or B or the by standers at the beating, or so shortly before or after it as to
form part of the same transaction, is a relevant fact. So also on a charge of theft, though
it is not material in general to inquire into any taking of goods other than that specified in
the charge, yet for the purpose of identifying the thief it may be very relevant, and
therefore admissible, to show that other goods which had been left on the same
premises and were stolen on the same night, were afterwards found in the possession
of the accused. This is strong evidence of the accused having been near the owner's
house on the night of the theft. Such evidence the section now under consideration
makes relevant. Again, A is accused of waging war against the Government of India by
taking part in an armed insurrection in which property is destroyed, troops are attacked,
and jails broken open. The occurrence of these facts is relevant, as forming part of the
general transaction, though A may not have been present at all of them.

16. Facts which are occasion, cause etc,of a relevant fact. Facts which are the
occasion, cause or effect of a fact in issue or relevant fact or which afforded an
opportunity for its occurrence are relevant (IEA.s.7).
For example, on the trial of A for robbing B, the facts that shortly before the robbery B
had money in his possession and showed it publicly to third persons are relevant. Under
this rule also, evidence may be given of bruises which a medical officer or other person
sees next day on the body of a NCO to whom a sepoy is accused of using criminal force
under AA.s.40 (a).

17. Facts showing motive or preparations. --Facts which show or constitute a motive or
preparation for a fact in issue or relevant fact are themselves relevant as is also the
conduct of accused persons and those against whom offences are committed, if such
conduct is influenced by a fact in issue or relevant fact (IEA.s.8).
Complaints. —-Thus evidence may be given that, after the commission of the alleged
offence, the accused absconded or was in possession of the property, or the proceeds
of property, acquired by the offence, or that he attempted to conceal things which were
or might have been used in committing the offence, or as to the manner in which he
conducted himself when statements were made in his presence and hearing. This rule
also allows evidence of a complaint made shortly after the alleged crime was
committed, and of the terms in which such complaint was made, to be given in any case
in which an offence against the complainant is the subject of the proceedings.

18. Distinction between a statement and a complaint. —A distinction is to be marked,

however, between a bare statement of the fact of rape or robbery, and a complaint. The
latter evidences conduct, whereas, the former has no such tendency. There may be
sometimes a difficulty in discriminating between a statement and a complaint. It is
conceived that the essential difference between the two is that the latter is made with a
view to redress: or punishment, and must be made to someone in authority—the police
for instance or a parent or some other person to whom the complainant was justly
entitled to look for assistance and protection. The distinction is of importance, because
while a complaint is always relevant, a statement not amounting to a complaint will only
be relevant under particular circumstances e.g. if it amounts to a dying declaration or
can be used as a corroborative evidence (IEA.ss.32 and 157).

19. Explanatory and introductory acts. -Facts necessary to explain or introduce a fact in
issue or relevant fact are relevant, as. well as those which support or rebut an inference
suggested by a fact in issue or relevant fact, establish the identity of a person or thing
whose identity is relevant, fix the time or place at which any fact in issue or relevant fact
happened or show the relation of the parties (IEA.s.9). The facts here referred to are
only relevant in so far as they are necessary for the purposes indicated.

20. Acts of conspirator. —In cases of conspiracy, after evidence has been given of the
existence of the plot, and of the connection of the accused therewith, anything said
done or written by one conspirator in reference to their common intention is a relevant
fact. as against each and all of the conspirators (IEA.s.10)
Thus, on the consideration of a charge of mutiny, or exciting mutiny, evidence of (his
kind may, after such prima-facie proof, be received against a particular accused. This
rule admits against a conspirator everything said, done or written by a conspirator in
reference to the common intention, even if said, done or written after the conspirator
against whom it is offered has ceased to be connected with the conspiracy or before he
joined it.

21. Inconsistent facts. —Facts which are inconsistent with or which, reader highly
probable or improbable, a fact in issue or relevant fact are themselves relevant
(IEA.s.11).
"Alibi". —This rule is of importance to the party whose object is to disprove something
which is asserted by the opposite side. An 'alibi' is a familiar instance of his. If A is
accused of a crime committed at CALCUTTA and he can show that he was at BOMBAY
at or about the same time, his innocence is clear, while if he can even show that shortly
before and after the time when the crime was committed he was so far from CALCUTTA
that it was most improbable he could get there and back, a strong point in his favour
would have been established.

22. Facts showing state of mind or body. —Facts showing the existence of any relevant
state of mind or body are relevant (IEA.s.14).
Thus, where any state of mind (e.g., intention, knowledge, the absence of good faith,
negligence, rashness or ill-will) is an ingredient of an offence, the commission of the
principal act being either admitted or proved, evidence may for the purpose of proving
the existence of such state of mind in reference to the particular matter in question, be
given of similar acts committed by the accused on different occasions. Thus, although
on a charge of murder or of using criminal force, evidence as to the general disposition
of the accused is inadmissible, former menaces or attacks or expressions of vindictive
feeling against the same person are admissible as evidence of intention.
On charges of criminal breach of trust, effected by falsifying accounts, evidence of other
incorrect entries in the accused's accounts are admissible to show that particular errors
covered by the actual charge were not made accidentally.
On charges of "receiving" evidence may be given that other stolen property was found
at the, same time in the possession of the accused, to prove his guilty knowledge.
Upon charges of uttering forged notes. or counterfeit coin, evidence is admissible to
prove the uttering on other occasions of notes or coins which were not genuine or the
possession thereof.
Where the gist of the alleged offence is fraud, evidence of similar offences is admissible
to prove the intent. Thus, on a charge of obtaining cash by falsely representing that the
cheque given in exchange was good, in order to prove intent or knowledge, evidence is
admissible as to another cheque (dishonoured on presentation) having been given to a
third person.

23. Other instances. -In support of a charge for malicious, disrespectful or unbecoming
language, addressed by word of mouth or written to or used of a superior officer at a
stated time, or in a particular letter, after having proved the words in the charge, the
prosecutor, to show the spirit and intention of the accused, may prove also that he
spoke or wrote other disrespectful or malicious words on the same subject, either before
or afterwards, or that he published or disseminated copies of the letter set forth as
disrespectful in the charge. This evidence is admissible, not in aggravation of the
offence charged, but for the purpose of proving the deliberate malice or disrespect
imputed in the charge.

24. Facts showing intention. —Facts which show whether an act was intentional or
accidental by indicating the existence of a series of acts of which it formed part are
relevant (IEA.s.15).
This is a special case of the principle discussed above. Thus, on a charge of murder by
shooting, if it is questionable whether the shooting was by accident or design, evidence
may be given that at another time the accused intentionally shot at the same person.
Again, on a charge of fraudulently issuing passage warrants to certain persons who
were not entitled to them, after having proved that the accused had issued the warrants,
evidence may be admitted of a series of similar transactions extending over a
considerable period as negativing a defence that the issue of these warrants was due to
a mistake on the part of the accused.

25. Course of business.—Facts which show a course of business according to which a

fact in issue or relevant fact would naturally have been done, are relevant. For example,
the question is whether a particular letter reached A. The facts that it was posted in due
course, and that it was not returned through the Returned Letter Office, are relevant
(IEA.s.16).
(v) Admissions and Confessions

26. Rule as to admissions. —Admissions are statements made by a party to the

proceedings or his representative, as to the subject matter of the case, or the facts
relevant thereto (IEA.s.18). The general rule is that they may be proved against those
who made them but not in their favour (IEA,s18). In connection with crime admissions
usually occur in the form of confessions. The term, 'confession' is not defined in the
Indian Evidence Act. It has, however, been explained by the Judicial Committee (Pakala
Narayana Swami V Emperor AIR 1939 P. C.47. See also Palvinder Kaur V. State of
Punjab 1953 SCR 94) that a confession must either admit in terms -the offence, or at
any rate substantially all the facts which constitute the offence. The value of a
confession, if true, is obviously very great, but special provision as to their receipt has
been made in the Indian Evidence Act, in order to guard against torture or duress for the
purpose of extorting them. Confessions are therefore only relevant subject to certain
conditions. These conditions will now be considered.

27.Confession only admissible against the person who makes it. —The general rule is
that a confession is not admissible as evidence against any person except the person
who makes it. But a confession made by one accomplice in the presence of another is
admissible against the latter to this extent, that if it implicates him, his silence under the
charge may be used against him, whilst on the other hand, his prompt repudiation of the
charge might tell in his favour (IEA.s.8). The Indian Evidence Act further enacts that
when two or more persons are tried jointly for the same offence, a confession made by
one of such persons, affecting himself and any other of the accomplices jointly tried with
him, when proved, may be taken into consideration by the court against that other
accomplice as well as against the person who made it (lEA.s.30. When one of several
persons jointly tried pleads guilty, he ceases to be tried jointly with the others, and
therefore any confession made by him cannot be taken into consideration against the
others). The confession may have been made at any time and not necessarily in the
presence of the accused, but the confessing person must implicate himself substantially
to the same extent as the accomplice against whom the confession is taken into
consideration. Though the- confession of an accomplice may thus, under certain
circumstances, be "taken into consideration" and thus be an element in the
consideration of the case against the other co-accused, it must necessarily be of less
weight than sworn evidence, less even than the sworn evidence of an accomplice who
is not jointly tried. The courts have accordingly established the following rules with
regard to this kind of evidence: —
(a) Where there is absolutely no other evidence, such a confession alone will not justify
the conviction of a person who is being tried, jointly with its author;
(b) The confession of co-accused must be corroborated by independent evidence, both
in respect of the identity of all the persons affected by it and of the fact that the crime
was committed.

28. Confession must be voluntary. —To be relevant and therefore admissible in

evidence, a confession must be voluntary. Though it is highly desirable that the
prosecutor should prove the circumstances in which a confession was made, the onus
lies upon the accused of showing that a confession made by him was not voluntary and
therefore irrelevant. Unless, therefore, it appears doubtful whether a confession is
voluntary, a court need not require the prosecutor affirmatively to establish that fact.

29. What this means. —A confession is not deemed to be voluntary, if it appears to the
court to have been caused by any inducement, threat or promise, having reference to
the charge against the accused person, proceeding from a person in authority (i.e., a
person engaged in the apprehension, detention, prosecution or one who is empowered
to examine him) and sufficient, in the opinion of the court, to give the accused person
grounds, which would appear to him to be reasonable, for supposing that by making it
he would gain any advantage, or avoid any evil of a temporal nature in reference to the
proceedings against him (IEA.s.24). Thus, if a hand-bill issued by the Government
promising a reward and pardon to any accomplice in a certain crime who would confess
was brought to the knowledge of an accomplice in the crime, who, under the influence
of a hope of a pardon make a confession, that confession would not be voluntary and
could not be used at his trial.

30. A confession does not cease to be voluntary merely because it appears to have
been caused by the exhortations of a person in authority to make it as a matter of
religious duty, or by an inducement collateral to the proceedings, or by inducements
held out by a person having nothing to do with the apprehension, prosecution or
examination of the accused.
Thus a confession made by a prisoner to a jailor in consequence of a promise by the
jailor that if the prisoner confessed he would be allowed to see his wife, would be
admissible in evidence.

31. Confession obtained by fraud etc. —It is of course, improper to endeavour to trap a
man into incriminating himself; but if a confession is otherwise admissible, as evidence
it does not become inadmissible merely because it was made under a promise of
secrecy or in consequence of a deception practised on the accused person for the
purpose of obtaining it, or when he was drunk or because it was made in answer to
questions, which he need not have answered, or because he was not warned that he
was not bound to make the consession, and that evidence of it might be given against
him (IEA.s.29).
32. Confession voluntary if made after removal of impression produced by inducements
etc. —A confession is deemed to be voluntary if, in the opinion of the court, it is shown
to have been made after complete removal of the impression produced by any
inducement, threat or promise which would otherwise render it involuntary (lEA.s.28).
Thus, A is accused of a military offence, B, an officer, tries to induce A to confess by
promising to get the Commanding Officer to dismiss the case with an admonition if he
does so. The Commanding Officer informs B that he cannot give any such undertaking,
and this is communicated to AA statement subsequently made by him is voluntary.

33. Confession to Police Officers.—The following provisions are important-

(a) No confession made to a police officer can be proved against a person accused of
an offence (IEA.s.25).
(b) No confession made by any person whilst in the custody of a police officer, unless it
be made in the immediate presence of a magistrate,can be proved against such person
(.lEA.s.26).
The term 'police officer' should be construed according to its more comprehensive and
popular meaning; it includes, any sort of police officer from the highest down to a village
chowkidar; it also includes a military police officer (which expression includes a provost-
marshal, any of his deputies or assistants, and any other person legally exercising
authority under him or on his behalf).
Nevertheless, facts discovered in consequence of a confession which is itself
inadmissible under (a) and (b) above, and so much of the confession as distinctly
relates to the facts thereby discovered, may be proved (IEA.s.27). Thus, A, accused of
house breaking by night, makes a confession to a policeman. Part of it is that A had
thrown a lantern into a certain pond; the fact that he said so, and that the lantern was
found in the pond in consequence, may be proved.

34. Whole confession must be given in evidence.—-If a confession is given in evidence,

the whole of it (subject as stated in para 33) must be given, and not merely the parts
disadvantageous to the accused person. It is permissible to believe one part of a
confessional statement, and to disbelieve another, and it is enough that the whole of the
confession is tendered in evidence so that it may be open to the court to reject the
exculpatory part and to take inculpatory part into consideration, if there is other
evidence to prove its correctness (Bhagwan Singh Rana vs The State of Haryana AIR
1976 SC 1797).

35. Confession made on oath in previous proceedings.—A confession may be used as

such against the person who makes it, though it was given as evidence on oath and
though the proceedings in which it was given had reference to the same subject matter
as the proceedings, in which it is to be used; but if, after refusing to answer any
question, the witness was compelled to answer, his answer is not admissible against
him (IEA.s.132). Thus, A is charged with causing hurt to B. A had voluntarily appeared
as a witness for C who was charged with the same offence at a previous trial, and had
not declined to answer any question. A's evidence can be used against him on his own
trial. The same rule applies to statements made by a person when charged before his
commanding officer, or at the taking of summary of evidence but AR 23 (3) requires the
officer recording the summary of evidence, to caution the accused before recording his
statement. The proceedings of a court of inquiry cannot be used as evidence against a
person subject to the AA before a court-martial, unless the court-martial is one for the
trial of such person for wilfully giving false evidence before the court of inquiry (AR 182).
(vi) Statements by persons who cannot be called as witnesses.

36. Hearsay excluded.--As a general rule, the statements of persons not called as
witnesses are inadmissible as evidence of the truth of the facts stated. This does not
mean that evidence of what absent persons said is absolutely excluded. Such
statements may, for instance, be admissible as part of the transaction .(IEA.s.6) as
conduct influenced by it (IEA.s.8.) or as indicative of state of mind or body which are
relevant (IEA.s.14). The cries of a mob led by the accused, the complaints referred to in
para 17 above, and statements made by the victim in a poisoning case before his illness
as to his health, and during his illness as to his symptoms, are examples of this.

37. Reasons for exclusion of hearsay.—The reasons for excluding "hear say" (i.e., the
statements of persons not called as witnesses) are, first, that such statements are not
made on oath or affirmation and secondly, that the person affected by the statement
has no opportunity of cross-examining its author, The rule has often been criticized on
the ground that it sometimes excludes the only means of proof obtainable, but its utility
in excluding irresponsible statements, is obvious. The general rule that "hearsay is not
evidence" is subject to important exceptions. Following the principle already explained,
the Indian Evidence Act arranges for this by declaring that certain kinds of hearsay shall
be "relevant", all other kinds, which are not mentioned being left outside its enumeration
of "relevant" facts and thus made inadmissible.

38. Statements of absent persons which are specially admitted,—In addition to such
statements as are relevant by reason of their falling under one of the heads of
relevancy, already discussed, the most important of the statements thus made evidence
are:—
(a)statements by persons since dead as to the cause of their death (IEA.s.32(1));
(b) Statements or entries made in the ordinary course of business (IEA.s.32(2));
(c) statements which are against the interests of their authors or which would have
exposed them to a criminal prosecution or a suit for damages (lEA.s.32(3)),
The statement referred to in (a) above, is admissible in any proceeding in which the
cause of the person's death comes into question and there are no conditions as to the
declarant being in expectation of death or having abandoned all hope of recovery.
These considerations do not therefore affect the admissibility of such evidence, though
they may materially affect the weight which should be attached to it.

39. The statements referred to in (b) and (c) above, 'are not only admissible when the
author is dead but also in cases where the author cannot be found, or has become
incapable of giving evidence or when his attendance cannot be procured without an
amount of delay or expense, which under the circumstances of the case, appears to the
court to be unreasonable.
40. If such a statement or entry as is. referred to in (b) above, was made in the ordinary
course of business no question as to the source of information or the time when the
entry or statement was made will affect its admissibility. Further, it need not have been
the declarant's duty to make them, they need not have been made contemporaneously,
it is not necessary that the declarant should have had personal knowledge of the
transaction recorded, and they may be used to prove independent collateral matters i.e.
matters- which it was not necessary to include in the ordinary course of business.

41. Evidence at previous enquiry when admitted.—It may sometimes happen that a,
material witness, who has given evidence at a preliminary inquiry, cannot attend at the
trial. If the evidence was given in a judicial proceedings or before a person authorised
by law to take it and was taken on oath or affirmation with liberty to the accused to
cross-examine the Indian Evidence Act allows it to be used (IEA.s.33) at the
subsequent trial of the accused on the same charge, if the witness—
(a) is dead;
(b) cannot be found:
(c) is incapable of giving evidence;
(d) is kept out of the way by the accused; or
(e) if his presence cannot be obtained without an amount of delay or expense which,
under the circumstances of the case, the court considers unreasonable.

42. This provision will sometimes admit of the evidence which was given at a court-
martial which is dissolved before coming to a finding or the proceedings of which are not
confirmed being used at the subsequent trial of the same accused before another court.
It will also admit (subject to the above conditions) of evidence recorded before a
magistrate in the presence of the accused and with liberty to cross-examine, in relation
to the same charge as that on which he is afterwards tried by court-martial being used
at the subsequent trial, This provision may be useful as a means of perpetuating
testimony when the life of a witness is in danger, or he is under orders for active service
and cannot be detained to give evidence.

43. Summary of evidence how far admissible.—In the case, however, of trial by court-
martial there is no similar provision making a summary of evidence taken before a CO,
when an accused person is remanded for trial, evidence under the circumstances as
depositions taken on oath and in a judicial proceeding. Accordingly, the summary,
except so far as it contains statement by the accused himself, cannot be admitted as
evidence of the facts recorded in it unless the accused has pleaded guilty ( ARs54, 116
and 160). But where a statement recorded in the summary is put in issue before a court-
martial, as for example, where a discrepancy is alleged between that statement and the
evidence given before the court, or where the alleged wilful falsehood of such a
statement is made the subject of a charge, the summary if purporting to give verbatim
signed statement of the witness, may be given in evidence as confirmatory of the
statement having been made.
 (vii) .Statements made under special circumstances

44. Documents.—The rule excluding hearsay evidence is applicable to written or

documentary, as well as to oral evidence. The statement of a person who is not called
as a witness is nonetheless "hearsay" because it has been reduced to writing, and is
offered in that form to the court. But in its application to documents of a public or official
character the rule is subject to very important qualifications. In the case of many such
documents the statements which they contain are, under express statutory provisions,
admissible as evidence of the matters to which they relate.

45. Entries in books of accounts,—Thus, entries in books of account regularly kept in

the course of business are relevant, but such entries are not by themselves, sufficient to
charge any person with a liability (IEA.s.34).

46. Entries in public records etc.-So also, an entry in any public or other official book,
register or record made by a public servant in the discharge of his official duty or by any
other person in the discharge of a duty imposed on him by law, is admissible as
evidence of the facts to which it relates (IEA.s.35). .Statements in maps generally
offered for public sale, or made under the authority of the Central Government or any
State Government are similarly admissible as evidence as to matters usually
represented in such maps (IEA.s.36), as are also statements of the law of any country
contained in the official publications of its Government (IEA.s.38); and a statement of
any fact of a public nature, if made in a recital contained in any Act of Parliament of the
United Kingdom, or in any Central, or State Act or in Government notification appearing
in the Official Gazette is admissible as evidence of the fact (IEA.s.37).

47. Special provisions of AA.- Under the special provisions of the AA, enrolment papers,
letters, returns and documents respecting service, dismissal or discharge, Army lists
and gazettes published by authority and showing the status and rank of officers, JCOs
or WQs, records in regimental books, certificates in certain cases stating the fact, date
and place (but not the circumstances) of the surrender or apprehension of absentees,
the reply of a Government officer to a communication addressed to him under AA.s.143
and the "return" of a commission are made evidence of the facts stated in them
(AA.ss.138, 141, 142 and 143).

48. Judgments of Courts of law.- The judgments of courts of law are also in some cases
relevant facts (IEA.ss.40 to 44). Courts-martial are chiefly interested in this matter so far
as it concerns pleas in bar of trial and the proof of previous convictions. As regards the
former it need only be remarked that the production of the judgment of a criminal court
convicting or acquitting the accused of the same offence, or a certified copy thereof
effectually bars his trial; while as to the latter, a previous conviction may be proved
either by verbatim extract from the regimental books or by the production of a properly
certified extract from the records of the court which convicted the accused (AA.s.144).
(viii) Opinion of third persons, when relevant
49. Rules as to opinion. - The general rule is that the opinion or belief of a witness is not
evidence. A witness must depose to the particular facts which he has seen, heard or
otherwise observed, and it is for the court to draw the necessary inference from these
facts. Thus, a witness may not on a trial for desertion characterise the accused's
absence as "desertion". This is a matter of inference, and is the point which rests with
the court to determine according to the evidence. The examination of the witness should
be confined to the fact of the accused absenting himself, and to such other facts
relevant to the charge as may be within the knowledge of the witness. In certain
exceptional cases, however, opinion is for special reasons admitted as evidence. These
cases are dealt with in IEA.ss.45 to 51, which following the system already explained,
declare these opinions to be relevant, leaving all others outside the enumeration of the
relevant facts.

50. Exception in, case of "experts". —The chief exception to the rule excluding opinion
is that the opinion of an "expert" i.e., a person specially skilled in foreign law, in any
science or art, or in the identification of handwriting or finger impressions, is admissible
on any point within the range of his special knowledge (IEA.s.45).

51. Thus, in a poisoning case, a doctor may be asked as an expert, whether, in his
opinion, a particular poison produces particular symptoms. And where unsound ness of
mind is set up as a defence, an expert may be asked whether, in his opinion, the
symptoms, exhibited by the accused commonly show unsoundness of mind, and
whether such unsound ness of mind usually renders persons incapable of knowing the
nature of their acts, or of knowing that what they do is either wrong or contrary to law.
An officer may be asked, as an expert to give his opinion on a point within his special
military knowledge, but to make his opinion admissible; his knowledge must be of a kind
not possessed by the court generally. Thus, in a trial before the court-martial, it is not
proper to ask a witness for an opinion on matters with which all officers should be
familiar, but it may be perfectly proper to put questions involving opinion to an engineer
as to the progress of a sap, or to an artillery officer as to the probable effect of his arm,
if directed as assumed, since these matters, though having reference to military
science, are not of such nature as to be presumably known to each member of a court-
martial.

52. Grounds on which opinions are based when relevant. —When an opinion is
relevant, facts which support or are inconsistent with it. and the grounds on which it is
based, are also relevant (IEA.ss.46 and 51). Evidence as to the grounds on which the
opinion is based can, except as mentioned in para 70 below, only be given when the
author of the opinion is alive, as the grounds, on which the deceased person's opinion
was based must obviously be either guess work or hearsay.

53. Handwriting—who may give opinion regarding it. —The opinion of any person
acquainted with the handwriting of the person by whom any document is supposed to
have been written or signed is relevant even though the former is not an "expert" in
handwriting. A person is said to be acquainted with the handwriting of another if, —
(a) he has seen that person write;
(b) he has received documents purporting to be written by that person in answer to
documents written by himself or under his authority and addressed to that person; or
(c) documents purporting to be written by that person have been habitually submitted to
him in the ordinary course of business (IEA.s.47).

54. Proof of handwriting by comparison.—Handwriting may also be proved by

comparison, under IEA.s.73. It will, therefore, be convenient to consider this section
here, though it occurs in a later portion of the Act. It allows a writing admitted or proved
to be written by any person to be compared with another which purports to be written by
that person, in order that the genuineness of the latter may be established or rebutted.
Nothing is said as to who is to make the comparison, and it may therefore be made
either by the court or an expert. A combination of both methods is the safer course. A
comparison of handwriting is at all times as a mode of proof hazardous and
inconclusive, and especially so when it is made by one not conversant with the subject
and without such guidance as might be derived from the arguments of counsel and the
evidence of experts.
The same section goes on to provide that a court may require any person present in
court to write any words or figures for the purpose of enabling the court to compare the
words or figures so written with any words or figures alleged to have been written by
such person. The comparison is, it will be noticed, made by the court in this case. It
must be borne in mind that writing made for the purpose of comparison is not unlikely to
be disguised.
Art 20(3) of the Constitution of India stipulates that no person accused of any offence
shall be compelled to be a witness against himself. It has been held by the Supreme
Court that the said Art is not violated by obtaining thumb, foot, palm or finger
impressions or specimen writings of an accused person for comparison or making him
show parts of his body by way of identification.
The importance of an expert's evidence in such cases lies not so much in the opinion
which he expresses as in the fact that he draws the attention of the court to similarities
and dissimilarities which it might not notice without his assistance, but the value of
which (when pointed out) it can fully appraise for itself. Where a question of forgery is to
be decided by comparison of handwritings only, the assistance of an expert is most
desirable.

55. Other methods of proof. —The methods referred to above are the usual ones by
which an individual's authorship of a document is proved. They are not, however, the
only ones, and in addition to the writer's own admission, or the evidence of someone
who saw him write it, the authorship of a document may be proved by circumstantial
evidence. For instance, A, whose credit is unimpeachable, is able to swear that B was
the sole occupant of the room, and that as soon as B left it, he (A) entered and found a
letter, with the ink still wet, lying on the table. There could be no more convincing proof
that B wrote the letter, however unlike his original penmanship the writing might be.
Again, the writing of an anonymous letter is the subject of a court-martial charge.
Circumstances directing suspicion to a particular regiment, company or class have
come to light and specimens of the handwriting of all suspected persons have been
procured from the regimental school or otherwise. One of these corresponds with the
writing of the anonymous letter. It has been held that IEA.s.73 can be invoked where the
document in issue is alleged by the prosecution to have been written by that particular
person, such allegation being based on the resemblance of the handwriting to that of
other documents admitted or proved to have been written by that person. The opinions
of one or more experts as to the letter and specimen being by the same writer and
evidence as to the authorship of specimen are, however, relevant (lEA.ss.45 and 11)
and from them the authorship of the anonymous letter may be inferred.

56. Summary of law as to proof of authorship of document. —The result of the foregoing
remarks is that the authorship of a document may be proved by-
(a) the evidence of experts (para 50);
(b) the evidence of persons acquainted with the handwriting of the alleged writer
(para.53);
(c) comparison under IEA.s.73 (para 54);
(d) the admission of the writer or the evidence of someone who saw him write it
(para.55); and
(e) circumstantial evidence (para.55).

57. Evidence of belief not excluded. —The rule which requires a witness to state what
he knows, and not what he thinks does not require him to depose to facts with an
expression of certainty that excludes all doubt in his mind. For example, it is the
constant practice to receive in evidence a witness' belief as to the identity of a person or
thing or as to the fact of a certain handwriting being the handwriting of a particular
person, though he will not swear positively to those facts. A witness who falsely swears
that he "believes" a thing to be so and so is as much guilty of giving of false evidence as
one who falsely swears that "it is" so and so.

58. Opinion as to conduct how far admissible. —In cases affecting the conduct of the
accused, either as to deportment or language, it is not only proper,but often necessary,
to require a witness to declare his opinion, because that opinion may be an impression
derived from a combination of circumstances occurring at the time referred to, which it
would be difficult, if not impossible, fully to impart to the court. But it would be improper
to draw the attention of a witness to facts, whether stated by him or by another witness,
and to ask his opinion as to their accordance with military discipline or usage, because
the courts, when in possession of facts, are the only proper judges of their tendency. If
the witness is asked a question inviting him to express his opinion as to the general
conduct of the person accused, or to give his judgment on the whole matter of the
charge, he may, and should, decline to answer it.
(ix) Character, when relevant

59. Evidence of character when admissible.-In criminal proceedings (which term

includes trials by court-martial) the fact that the accused is of good character is always
relevant (IEA.s.53),but the fact that he has a bad character is irrelevant unless evidence
has been given that he has a good character (IEA.s.54). "Character" includes both
reputation and disposition, but evidence may be given only of general reputation and
general disposition, and not of particular acts by which reputation and general
disposition, were shown (IEA.s.55explanation); as an exception,, however, to this,
previous convictions can be proved as evidence of bad character, when such evidence
is otherwise admissible i.e., when evidence of good character has been given (IEA.s.54
explanation 2).

60. Evidence of character etc.,after conviction. —By a special provision of the AA

(AA.s.144), evidence of character (good or bad) previous convictions and certain other
prescribed matters, information on which is necessary to enable the court to decide
upon its sentence, is admitted after the accused has been convicted, while at a SCM
the officer holding the trial may record such matters of his own knowledge. With these
exceptions, no unfavourable evidence as to character is admissible unless the accused
has brought it on himself by calling or eliciting evidence of his good character.

61. Effect of Evidence as to character. —Evidence of general good character cannot

avail the accused against evidence of the fact, but where some reasonable doubt exists
as to his guilt, it may tend to strengthen a presumption of innocence, and proved good
character should be taken into consideration with all the other facts and circumstances,
not as positive evidence contradicting any that has been brought on the other side, but
as probable testimony to induce the court to doubt whether the other evidence is
correct, and not to discard that evidence if the court thinks that it is correct.
On a charge of theft, character for honesty may be entitled to considerable weight; so
also on a charge implicating the courage of a person, character for bravery and
resolution. But it would be manifestly absurd, on a charge of theft to allow character for
bravery to weigh heavily or on a charge of cowardice, to be biased by a character for
honesty. General character, unconnected with the charge, though it may not weigh with
the court, except in awarding punishment in discretionary cases, may essentially serve
the accused by influencing the superior with whom it rests to mitigate or remit the
sentence.

62. Evidence tending to show disposition not admissible-As a general rule, it is not
competent for the prosecution to adduce evidence tending to show that the accused has
been guilty of criminal acts other than those included in the charge against him for the
purpose of leading to the conclusion that he is a person likely from his conduct or
character or disposition to have committed the offence for which he is being tried. Thus,
on a charge of murder, the prosecutor cannot give evidence of the conduct of the
accused in respect of other persons for the purpose of proving a blood-thirsty and
murderous disposition. On a charge against a sentry of having been asleep on his post
on an occasion, evidence that he had been found asleep on his post on other occasions
would not be admissible for the purpose of showing that he would be likely to commit
the offence; and on a charge of insubordination, evidence of insubordinate conduct on
other occasions would not be admissible for the purpose of showing a tendency to
insubordinate conduct. Evidence as to other crimes committed by the accused may
however be admissible under paras 15, 22 or 24 above, if these crimes form part of the
same transaction, show the existence of a relevant state of mind or body or negative the
theory of accident or misfortune.
63. Conclusion of list of "relevant facts", —This concludes the list of what the Indian
Evidence Act classes as "relevant" facts. Special provision is, however, made
elsewhere for the admission of certain other evidence, a consideration of which may be
helpful to a court in arriving at a decision as to how far a witness is to be believed.
These are: —
(a) Answers to certain questions which are admissible on cross-examination;
(b) Evidence impeaching the credit of witnesses:
(c) Corroboration of the statements of witnesses. They will be considered later, when
dealing with the portions of the Indian Evidence Act in which they occur.
(x) Facts which need not be proved

64. Two categories of facts which need not be proved. —Having thus settled what sort
of facts may be proved, the Indian Evidence Act goes on to show how these facts are to
be brought to the notice of the court which tries a case. In the first place, certain facts
need not be proved at all. These fall into two categories viz., facts of which courts take
judicial notice, and admissions.

65. Judicial notice. —A court is said to lake judicial notice, in other words, not to
require evidence, of any facts which are assumed to be so generally known as not to
require special proof. By AA,s.134 a court-martial is expressly authorised to take judicial
notice of all matters within the general military knowledge of its members. Thus,
evidence need not be given as to the relative rank of officers, as to general duties,
authorities, and obligations of different members of the service, or generally as to any
matters which an officer, as such, may reasonably be expected to know. The Indian
Evidence Act further requires courts to take judicial notice of certain other matters.
Among these are: all laws in force in the territory of India, all public Acts passed by
Parliament of the United Kingdom, Articles of War for the Indian Army, Navy or Air
Force the course of proceedings of Parliament and of the legislature in a Province or
State, the accession and the sign manual of the Sovereign for the time being of the
United Kingdom of Great Britain and Ireland, all seals of which English Courts take
judicial notice, the seals of all the courts in India. The seals of any Notary Public, the
existence, title and national flag of a State or sovereign recognised by the Government
of India, the divisions of time, the geographical divisions of the world, the
commencement, continuance and termination of hostilities between the Government of
India and any other State or body of persons and the rule of the road on land or at sea
(IEA.s.57).

66. Books of reference may be consulted—In all those cases, and also on all matters of
public history, literature, science or art, the court may consult appropriate books of
reference and may require the party asking it to take judicial notice of a fact to produce
such a book, before it takes judicial notice of the fact (IEA.s.57).

67. Facts admitted —Facts which the parties admit in court need not be proved,
otherwise than by such admissions, unless the court requires them to be so proved
(IEA.s.58). It is the practice of courts-martial to receive admissions made in open court
as to collateral or comparatively unimportant facts which are not in dispute, but must be
proved on the part either of the prosecution or of the defence. Thus, it is the practice of
allowing either party the option of admitting the authenticity of orders or letters or the
signature of document, or the truth of a copy, put in by the other party, in cases where
such writings are receivable when proved; or that certain details in an enumeration of
stores or in an account are correctly stated; or that a promise or permission to a certain
effect was actually given, or that a certain letter was sent or received on a given day;
and so in similar cases where admissions may expedite the proceedings and do not go
to the merits of the matter before the court.

68. Plea of guilty. The commonest instance of an admission is a plea of guilty, which is
an admission by the accused of all the averments in the charge sheet. On such plea, no
further evidence of the guilt of the accused is necessary and he can be convicted and
sentenced accordingly.
(xi) Oral evidence

69. Oral evidence defined. —All other facts must be proved by oral or documentary
evidence. 'Oral evidence' means statements made to the court by witnesses, while
'documentary evidence' means the production of documents for the inspection of the
court (IEA.s.3). All facts, except the contents of documents, may be proved by oral
evidence (IEA.s.59) which in all cases must be direct; that is to say. —
(a) if it refers to a fact which could be seen, it must be the evidence of a witness who
says he saw it;
(b) if it refers to a fact which could be heard, it must be the evidence of a witness who
says he heard it;
(c) if it refers to a fact which could be perceived by any other sense or In any other
manner, it must be the evidence of a witness who says he perceived it by that sense or
in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be
the evidence of the person who holds that opinion on those grounds.

70. Special rule as to treatises by experts. —The opinions, however, of experts

expressed in any treatise commonly offered for sale, and the grounds on which such
opinions arc held, may be proved by the production of such treatise if the author is
dead, or cannot be found, or has become incapable of giving evidence or cannot be
called as a witness without an amount of delay or expense which the court regards as
unreasonable (Proviso I to IEA.s.60).

71. Court may require production of things referred to. —If oral evidence refers to the
existence or condition of any material thing, other than a document, the court may, if it
thinks fit, require the production of such material thing for its inspection (Proviso 2 to
IEA.s.60).
(xii) Documentary evidence

72. Rule as to documentary evidence. —The existence, condition, or contents of a

public document may be proved either by primary or by secondary evidence (IEA.ss.61,
64 and 65(e)). The existence, condition or contents of a private document may be
proved by primary evidence, and in certain circumstances may also be proved by
secondary evidence (IEA.ss.61, 64 and 65(a) to (d)(f) and (g)).It should be remembered
that 'contents' of a document and not the 'truth' of these contents is here referred to. A
document is, as a rule, only proof that certain marks have been made on the paper, or
whatever it is on which they are inscribed, e.g., that a certain statement has been
written down. It is only in exceptional cases that a document is proof of the matters
recorded; these cases are dealt with separately.
In all cases, the document must be produced by a witness on oath or affirmation.

73. Primary evidence. —Primary evidence is the production of the document itself for
the inspection of the court, or, if it is one of a number of documents produced by a
uniform process (e.g., printing, lithography or photography) the production of one of
them (IEA.s.62). If, however, a number of documents so produced are copies of a
common original, they are not primary evidence of the original. For example, the type of
a book is set up from the author's manuscript and a number of copies printed. Every
copy is primary evidence of the contents of the others, but not of the contents of the
manuscript (IEA.s.62- Explanation 2).

74.Secondary evidence, when given.—Secondary evidence may be given of the

existence, condition or contents of a document (IEA.s.65) in the following cases: —
(a) When the original is shown or appears to be in the possession or power of—
(i) the opposite party; or
(ii) any person out of reach of, or not subject to, the process of the court; or
(iii) any person legally bound to produce it, and when, after due notice (see IEA.s.66)
such person does not produce it,
any kind of secondary evidence (see para 75 below) may be given.
(b) When the existence etc., of the original has been admitted in writing by the party
against whom it is to be proved, the written admission is admissible as secondary
evidence.
(c) When the original has been destroyed or lost, or when the party offering evidence of
its contents, cannot, for any other reason not arising from his own default or neglect,
produce it in reasonable time, any kind of secondary evidence (see para 75 below) may
be given.
(d) When the original is of such a nature as not to be easily movable, any kind of
secondary evidence (see para 75 below) may be given.
(e) When the original is a public document or document of which certified copy is
permitted by law to be used as evidence (e.g., the Bankers' Book Evidence Act, 1891
(XVIII of 1891)), in such cases a certified copy is the only secondary evidence
permissible.
(f) When the originals consist of numerous accounts or other documents which cannot
conveniently be examined in court, and the fact to be proved is the general result of the
whole collection, evidence may be given as to such general result by any person who
has examined them, and who is skilled in the examination of such documents.
75. Secondary Evidence, nature. —Besides certified copies (see sub-para (e)of the
preceding para) secondary evidence of a private document given at a court-martial will
generally take one of the following forms (IEA.s.63): —
(a) Copies made from the original by a mechanical process which ensures accuracy
(e.g., photography) and copies compared with such copies.
(b) Copies made from or compared with the original.
(c) Oral accounts of the contents of a document given by persons who have seen it.

76. Public documents defined—The following are "public documents" (IEA.s.74): —

(a) Documents forming the acts or records of the acts—
(i) of the sovereign authority.
(ii)of official bodies and tribunals, and
(iii) of public officers.
(b) Public records kept in any State of private documents (IEA.s.74).
Private documents defined.—All other documents are private (IEA.s.75). As mentioned
above secondary evidence can always be given of the contents of a public document.
The nature of the secondary evidence varies with the character of the documents, the
most usual kind being a "certified copy" (IEA.s.76), and if the document is one provable
by a ''certified copy", this is the only secondary evidence admissible (IEA.s.65). The
secondary evidence required to prove the various kinds of public documents is dealt
with in IEA.ss.76 to 78, which should be consulted, if necessary. The public documents
specified in IEA.s.78 are provable as therein stated, all others are provable by "certified
copies" as provided for in IEAs.76 and 77.

77.Provisions as to extracts and copies of certain document. —Under the special

provisions of the AA, extracts from or copies of official records are in certain cases
made admissible as evidence (AA.ss.141, 142 and 144) while under the general law
referred to above (IEA.s.78) Acts, orders and notifications of the Central Government in
any of its departments or of any Local Government or any department of any Local
Government are provable by the records of the departments certified by the heads of
those departments respectively or by any document purporting to be printed by order of
any such Government.
(xiii) Presumption as to documents

78. ''shall presume' and ''may presume". —IEA.ss.79 to 90 provide that certain
documents shall be presumed to be what they purport to be, unless and until the
contrary is proved, and that, as to certain others, courts may in their discretion, either
make a similar presumption or require the genuineness of the document to be proved
by the party who puts it forward. The distinction between what the courts 'shall presume'
and what they 'may presume' should be noticed (IEA.s.4). An instance of the former
class of presumption is found in AA.s.140, which provides that certain signatures shall
be presumed to be genuine until the contrary is shown. An instance of the latter is that
regarding telegraph messages contained in the Indian Evidence Act (IEA.s.88). A court
may either presume that a message forwarded from a telegraph office to the addressee
corresponds with a message delivered for transmission at the office of origin or may
require that fact to be proved by the party asserting it. This provision, does not,
however, authorise the court to make any presumption as to who delivered the
message for transmission or as to the truth of its contents.

79. Contract etc., rule as to. —Where a contract, grant or other disposition of property is
reduced to the form of a document, the document itself (or secondary evidence of its
contents when ad missile) is, save in certain exceptional cases, the only admissible
evidence of the matter which it contains, and the written contract cannot therefore,save
as aforesaid, be varied by verbal explanations or additions (IEA.s.91).
(xiv) Of the burden of proof

80. Burden of proof.—The burden of providing the existence (or non-existence) of any
fact lies on the side which wishes the court to believe in its existence or non-existence,
as the case may be, and which would fail if no evidence at all were given on either side
(IEA.ss.102 and 103). In criminal trials the effect of this is that the burden of proof is, in
the first instance, on the prosecutor, or as it is sometimes expressed "every man is
presumed to be innocent until he is proved to be guilty". An exception to this rule is that,
when any fact is especially within the knowledge of any person, the burden of proving
that fact is upon him (IEA.s.106) e.g., in charges for being "out of bounds" without a
pass, leaving a post without orders, releasing a prisoner without authority, absence
without leave etc. In such cases, the main fact being proved, the burden of proving the
possession of a pass, leave etc., lies on the accused, and such evidence as the
prosecutor may be in a position to give—including inferences from the conduct of the
accused—may be accepted as justifying a conviction in the absence of an explanation
by the accused.

81. Rule as to general and special exceptions. —When any person is accused of an
offence, the burden of proving the existence of facts bringing the case within any of the
"general exceptions" of the Indian Penal Code or any special exception or proviso
applicable to the particular offence is on the accused (IEA.s.105). For instance, A is
accused of murdering B. The burden of proving that A killed B is on the prosecution. A,
however, pleads grave and sudden provocation; the burden of proving this provocation
is on A.
Difference in discharge of burden in cases of prosecution and defence. —When the
burden of the issue is on the prosecution e.g., the onus of proving the guilt, it must
prove it beyond a reasonable doubt. It rests throughout on the prosecution and that
onus never shifts. When, however, the burden of an issue is upon the accused, he is
not, in general, required to prove it beyond a reasonable doubt or in default incur a
verdict of guilty. It is sufficient if he succeeds in proving a prima facie case. The test is
not whether the accused has proved beyond a reasonable doubt, that he comes within
the exception, but whether a reasonable doubt is thrown on the guilt of the accused.

82.Presumptions.—In certain cases the burden of proof is determined, not by the

relation of the parties to the question, but by what are called "presumptions". Certain
presumptions have been discussed already in connection with documents and
IEA.s.114 further provides that a court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the common course of natural
events, human conduct, and public and private business. An instance of such a
presumption is that a man who is in possession of stolen goods soon after the theft may
be presumed to be either the thief or a guilty receiver unless he can account for his
possession.
In some cases a state of mind (e.g.,intention, knowledge) is an ingredient of the offence,
but a state of mind is not capable of positive proof; it can only be inferred from overt
acts, which when proved, raises a presumption of intention or knowledge. As a general
rule, a person is presumed in law to have intended the natural and probable
consequences of his act.

83."Shifting" of the burden of proof.—Where the prosecution have proved a prima facie
case, the burden of disproving any facts or presumptions raised by the prosecution lies
on the accused. It is not infrequently said that the burden of proof "shifts" on to the
accused, but this is not, strictly speaking, correct be cause an accused person is not
bound to make any defence and will not necessarily be convicted if he makes no
defence. For instance, A is accused of committing theft of a five-rupee note, and the
prosecution prove that immediately after its loss it was found in A's possession. There is
obviously a strong presumption that A committed theft of the note, and as a matter of
common sense, the court would almost certainly convict him, if he offered no
explanation (or no reasonable explanation). Still, in law the burden remains on the
prosecution to the end, and does not 'shift' to the accused.
(xv) Witnesses

84. Competency of witnesses. —Under law all persons are competent witnesses unless
the court considers that they are prevented from understanding the questions put to
them, or from giving rational answers to these questions, by reason of (IEA.s.118): -
(a) tender years,
(b) extreme old age,
(c) disease of mind or body, or
(d) any other cause of the same kind.

85. Vide Cr PC, 1973, s. 315(1), an accused person is a competent witness for the
defence and may give evidence on oath in disproof of the charges against him or any
person jointly tried with him. He cannot, however, be compelled to give evidence. His
failure to give evidence cannot be made the subject of any comment before the court,
nor can it give rise to any presumption against him. Under the AA, however, the
accused person is not competent to give evidence on oath but may make an unsworn
statement in his defence (ARs 58, 59, 118 and 159).

86. Accused cannot give evidence but may make a statement. —Since the accused
cannot give evidence on oath under the AA, an unsworn statement made by him in his
defence (ARs 58, 59, 118 and 159) may be given a greater or lesser degree of
credence by the court and is one of the "matters before it", which the court is bound to
consider when arriving at a decision as to whether the charge is "proved" or "not proved'
87. Persons jointly tried cannot give evidence.—Persons jointly tried are incompetent to
testify against each other. If, therefore, the prosecution find it necessary to call one
participator in a crime as a witness against the others, the proper course is not to
arraign him with them, or (if he has been no arraigned) to offer no evidence and take a
verdict of acquittal.
If an accused thinks that the evidence of a person whom it is proposed to try with him is
material to his defence, he should claim a separate trial (AR 35(4)).

88. Evidence of accomplice.—The evidence of an accomplice is admissible against his

principal, and vice versa, unless they are tried together, but the evidence of an
accomplice should always be received with great caution. No particular number of
witnesses is legally necessary to prove any fact (IEA.s.134) and the uncorroborated
evidence even of an accomplice is, therefore, in strict law sufficient (IEA.s.133) if the
court considers him credible, but a court-martial should very carefully consider the
danger of convicting the accused on the uncorroborated evidence of an accomplice;
and if there is a JA it is his duty to warn the court of the danger, though at the same time
pointing out that it is within its legal province to convict upon such evidence if it so
chooses. The corroboration required is independent testimony which confirms in some
material particular not only the evidence that the crime has been committed but also
that the accused committed it.

89. Deaf or dumb witnesses. —A witness who is unable to speak may give his evidence
in any other manner in which he can make it intelligible, as by writing or by signs; but
such writing or signs must be made in open court. Evidence so given is deemed to be
oral evidence (IEA,s.119). The same rule would, no doubt, apply to a deaf or deaf and
dumb witness, who might be communicated with by writing or signs provided the court
was satisfied with the reality and accuracy of such communication.

90. Member as witness. —A member of a court-martial is a competent witness in favour

of the accused, and might, as such be sworn or affirmed to give evidence at any stage
of the proceedings; but AR39(2) directs, that a witness for the prosecution shall not sit
on a court-martial for the trial of any person against whom he is a witness.
(xvi) Privilege of witnesses

91.Incriminating questions. —It by no means follows that, because a person is

competent to give evidence, he is compelled to answer every question he may be asked
when giving evidence. A witness on being put a question, the answer to which would
incriminate him, is entitled to ask to be excused from answering it, and if after he has
asked to be excused; the court compels him to answer (as it is entitled to) his answer
cannot be proved against him at any criminal proceedings, except a prosecution for
giving false evidence by such answer (IEA.s.132).

92. Official matters. —Another class of. privilege is based on considerations of public
policy. No one is permitted to give evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the head of the department
concerned (IEA.s.123). Regs Army para 320. No public officer can be compelled to
disclose communications made to him in official confidence, if he considers such
disclosure injurious to the public interests (IEA.s.124) and in particular no magistrate or
police officer can be compelled to state whence he got any information as to the
commission of any offence (IEA.s.125).

93.Confidential reports.—On this principle, a confidential report, or letter or official

information of a confidential character, although it may refer to matters which a court-
martial may have decided to be relevant to the inquiry before it, cannot be produced or
disclosed except by consent of the superior authority,and this consent is refused if the
production or disclosure is considered detrimental to the public service. Proof of the
refusal should be laid before the court by the examination of a witness or by written
communication, read in open court and attached to the proceedings.

94. Courts of inquiry. —So also, the proceedings of a court of inquiry cannot be called
for by courts-martial, nor witnesses examined as to their contents; nor is any confession
or statement made at a court of inquiry admissible against an accused before a court-
martial (AR 182). The only exception to this rule is in the case of a court-martial for
giving false evidence before the court of inquiry.

95. Privilege which cannot be waived.—The modified privilege referred to in para 91 is

the privilege of a witness and he may waive it, and answer (without being compelled to
do so) if he chooses, but the privilege referred to in the following paragraphs is for the
protection of other parties and cannot be waived except with their consent.

96. Communication during marriage. —A husband must not be compelled to disclose

any communication made to him by his wife during the marriage, and a wife must not be
compelled to disclose any communication made to her by her husband during the
marriage (IEA.s.122).

97. Legal advisers-communication to. —A legal adviser is not permitted, whether during
or after the termination of his employment as such, unless with his client's express
consent, to disclose any communication, oral or documentary, made to him as such
legal adviser, by or on behalf of his client, during, in the course of, and for the purpose
of his employment, or to disclose any advice given by him to his client during, in the
course of and for the purpose of such employment. But this protection does not extend
to—
(a) any such communication if made in the furtherance of any illegal purpose;
(b) any fact observed by the legal adviser in the course of his employment as such,
showing that any crime or fraud has been committed since the commencement of his
employment, whether his attention was directed to such fact by or on behalf of his client
or not; or
(c) any fact with which the legal adviser became acquainted otherwise than in his
character as such.
The expression "legal adviser" includes the clerks of legal advisers and interpreters
between them and their clients, and the person representing or assisting the accused
during trial before a court-martial (IEA,ss.126 and 127).
98. Procedure when privilege claimed. —The questions, whether answered or not,
should be entered on the proceedings. When a witness claims the privilege of not
answering, it is (except as mentioned in para 92 above) for the court to decide whether
the question is within any of the exceptions. Courts-martial should in practice, interpose
by informing a witness, at the time when a question is put to him, that he is not bound to
answer. Any such interposition, and any claim of privilege by the witness, and the fact
whether the witness is required to answer or not, should be noted on the proceedings.
(xvii) Of the examination of witnesses

99.Points requiring attention of court. —It will be the duty of the court in every case to
see that the rules of evidence are strictly conformed to. The following points will require
special attention in relation to any evidence that may be tendered: —
(a) That it relates to a "fact in issue" or "relevant fact''.
(b) That it is not within the rule rejecting hearsay evidence.
(c)That (except in the case of experts) it is not a mere expression of opinion.
(d) That, if it is a confession or admission, it is legally admissible.
(e) That, if it is a document, it is legally admissible and properly put in evidence. (A
document is said to be "put in" when it is produced to the court by a witness on oath or
affirmation).
(f) That no document or other thing. is used for the purposes of the trial which has not
been properly put in. (On a charge of theft, the articles, the subject of the charge, must
be produced and identified in the presence of the court, by witnesses or their absence
satisfactorily accounted for. For purposes of identification a document or thing may,
however, be shown to a witness before it has been formally proved and put in. )
(g) That any witnesses called are legally competent to give evidence.
(h) That any document with which a witness proposes to refresh his memory is legally
admissible for the purpose.
(i) That the examination of witnesses is fairly and properly conducted.

100. How examination of witnesses is conducted.—The points mentioned in (a) to (g)

above have been already considered and (h) will be noticed later. The Indian Evidence
Act deals with the point at (i) above as shown in the following paragraphs.
The examination of a witness by the person who calls him is called his examination-in-
chief; and on this examination the questions must relate to the matters in issue at the
trial or relevant to the issue. The court must, of course, in all cases see that a witness is
not compelled to answer any question in respect of which he is entitled to claim
privilege, and they must also see that, as far as possible, a witness is so dealt with that
his honest belief is obtained from him.

101.Leading questions. —Leading questions must not, if objected to by the adverse

party, be asked in examination-in-chief or in re-examination, except with the permission
of the court (IEA. s.142). Leading questions as to matters which are introductory or
undisputed or which the court considers already sufficiently proved are, however,
permitted (IEA.s.142), and the court may also allow leading questions to be put to a
"hostile witness" (IEA.s.154). A leading question is one suggesting the answer which
the person putting the question wishes or expects to receive (IEA.s.141). For instance,
a witness must not be asked "Did the accused then go into the barrack room?" but
"What did the accused do next?". If it were not for this rule a favourable and dishonest
witness might be led to give any evidence that is desired. It would, of course, be mere
waste of time to enforce the rule where the questions asked are simply introductory and
form no part of the real substance of inquiry, or where they relate to matters which,
though material, are not disputed. But where a question relates to a contested point,
which is either directly conclusive of the matter in issue, or directly and proximately
connected with it, the rule should be strictly enforced, and no question should be
allowed in a form which directly or indirectly suggests to the witness the answer desired,
or which, embodying a material fact, admits of a conclusive answer by a simple "yes" or
"no".

102. Test of what are leading questions.—Care must, however, be taken in enforcing
this rule not to exclude questions which do not really suggest an answer, but merely
direct the attention of the witness to the subject as to which he is questioned. It is often,
indeed, extremely difficult in practice to determine whether or not a question is in a
leading form, and in all such cases the real test should be whether or not the
examination is being conducted fairly and with the object of eliciting the honest belief of
the witness.

103. Rules as to directing attention to articles.—When any article, such as a stick, belt,
or document, is produced in court for the purpose of identification, the witnesses may be
asked such question as "whether he recognises it" and whether he saw anything done
with it, or to it"; but such a question as "whether he saw A strike B with the stick or belt"
or "whether he saw A make an alteration in the document", should not be admitted.

104. Hostile witness. —The court may, in its discretion, permit the person who calls a
witness to put any questions to him which the adverse party might put in cross-
examination (IEA.s.154). This is called the treating of a witness as "hostile". If a person
calls a witness and the witness appears to be directly hostile to him or interested on the
other side, or unwilling to give evidence, the reason of the rule forbidding leading
questions fails, and the court may allow the person calling the witness not only to ask
him leading questions, but to cross-examine him, and to treat him in every respect as
though he were a witness called by the other side. In such circumstances he can,
therefore, be asked questions tending to show his bad character, and his credit may be
impeached in the same way as that of a witness called by the adverse party.

105. Rules as to cross-examination. —When the examination-in-chief is finished the

opposite party cross-examines the witness. In cross-examination leading questions may
be put and also questions, otherwise irrelevant, which tend—
(a") to test his veracity;
(b) to discover who he is and what is his position in life; or
(c) to shake his credit by injuring his character (IEA.s.146).
106. A witness may be cross-examined as to previous statements made by him in
writing or reduced to writing without such writing being shown to him, but if it is intended
to contradict him by the writing his attention must be called to it before it can be proved
(IEA.s.145). It is often important that when a witness is under cross-examination as to
his previous statements, the fact of their having been reduced to writing should be
concealed from him. It is only reasonable, however, that, when he has given his answer,
he should be shown the document and have the chance of correcting himself. The
summary of evidence may be used to prove any statement which the witness made,
and which it is proposed to contradict, and evidence may be called to prove that the
evidence of a witness, though consistent with the summary, is not consistent with
evidence given by him at the investigation before the CO.
107. Questions which assume that facts have been proved which have not been
proved, or that answers have been given which in fact have not been given, are
improper, and should not be allowed even in cross-examination. Nor should a witness
be pressed in cross-examination as to any facts, which, if admitted, would not affect the
matter at issue or his credibility. If the person cross-examining intends to adduce
evidence contradicting the evidence given by the witness, he should put to the witness
in cross-examination the substance of the evidence which he proposes to adduce, in
order to give him an opportunity of retracing or explaining what he has said.

108. A witness under cross-examination may be asked any questions which tend to test
his veracity, discover who he is, or shake his credit by injuring his character. But a
witness may, of course, decline to answer a question as to which he is entitled to claim
privilege, and the right of asking questions tending merely to discredit is qualified by
IEA.s.148, which provides that when a question which is only relevant as affecting his
credit by injuring his character is put to a witness, the court shall decide as to whether or
not he shall be compelled to answer it, and that in exercising this discretion the court
shall have regard to the following considerations: —
(a) Injurious questions. —Such questions are proper if they are of such a nature that the
truth of the imputation conveyed by them would seriously affect the opinion of the court
as to the credibility of the witness on the matter to which he testifies.
(b) Such questions are improper if the imputation which they convey relates to matters
so remote in time, or of such a character, that the truth of the imputation would not
affect, or would affect in a slight degree, the opinion of (he court as to the credibility of
the witness on the matter to which he testifies.
(c) Such questions are improper if there is a great disproportion between the importance
of the imputation made against the witness's character and the importance of his
evidence.
(d) The court may, if it sees fit, draw, from the witness's refusal to answer the inference
that the answer if given would be unfavourable.

109.Exclusion at evidence to contradict answers to questions testing veracity, etc.—It is

further provided that when a witness has been asked, and has answered such a
question no evidence can be given to contradict his answer (IEA.s.153). This rule is
however subject to the following two exceptions: —
(a) When the witness is asked whether he has been previously convicted and denies it,
evidence of his previous conviction may be given.
(b) When he is asked any question tending to impeach his impartiality and answers it by
denying the facts suggested, proof may be given of the truth of these facts.

110. Impeaching credit of witnesses—The credit of a witness may be impeached by the

adverse party, or with the consent of the court by the party who calls him, by the
evidence of persons who testify that they, from their knowledge of the witness, believe
him to be unworthy of credit (IEA.s.155(1)).Such persons may not, on their examination-
in-chief, give reasons for their belief, but may be asked their reasons in cross-
examination, and their answers cannot be contradicted. When the credit of a witness is
so impeached, the party who called the witness may give evidence in reply to show that
he is worthy of credit.

111.The credit of a witness may also, under similar conditions, be impeached by proof
that he has been bribed, or by proof of former statements inconsistent, with any part of
his evidence which is liable to be contradicted, and, at trials for rape or an attempt to
ravish, it may also be shown that the woman against whom the offence is alleged to
have been committed was of general immoral character (lEA.s.155(2), (3) and (4)).

112. Corroboration of witnesses. —In order to corroborate the testimony of a witness

as to a relevant fact he may be asked questions as to any other circumstances which he
observed at or near the time or place at which that fact occurred IEA.s.156). Thus, 'A'
an accomplice gives an account of a robbery in which he took part. He describes
various incidents unconnected with the robbery which occurred on his way to and from
the place where it was committed. Independent evidence of these facts may be given in
order to corroborate his evidence as to the robbery itself.

113.Former statements by witnesses.—In order to corroborate the testimony of a

witness, any former statements made by such witness relating to the same fact: —
(a) to any one at or about the time when the fact took place; or
(b) at any time before the authority legally competent to investigate the fact;
may be proved (IEA.s.157). The above conditions are, to some extent, a safeguard
against fictitious statements designedly made to support subsequent evidence, but it is
obvious that the corroborative value of such statements depends on the circumstances
of each case, and that they may easily be entirely valueless. The mere fact of a person
having, on a previous occasion, made the same assertion, often adds but little to the
chances of its truthfulness, and the courts should distinguish such testimony from really
corroborative evidence.

114. Re-examination. —At the conclusion of the cross-examination of a witness the

person who called him may, if he pleases, re-examine him; but the re-examination must
be directed exclusively to. the explanation of matters referred to in cross-examination. If
a new matter is, by permission of the court, introduced in re-examination, the other side
may further cross-examine upon it (lEA.s.138).
115. Questions by court. —After the re-examination of a witness is closed, the court
often asks him questions to clear up some point which it regards as material.
Frequently, too, the court recalls a witness, or allows him to be recalled for further
examination; and sometimes it even calls and examines a witness who has not been
called by either party. In any of these cases the party affected by the answers should be
allowed to suggest further questions or to cross-examine (as the case may require).
If a witness is so called or recalled after the case for the accused is closed, the accused
should also be allowed to give further evidence in rebuttal, and to comment upon the
fresh evidence if he has already made his address (ARs 142 and 143).
The court may allow the prosecution to call further evidence, after the case for the
defence is closed, to contradict or qualify the evidence given by the defence witnesses,
including the statement made by the accused, in the following cases (ARs 143 (2) and
(3)): —
(a) Where the defence have introduced new matter which the prosecution could not
have foreseen.
(b) When the prosecution had evidence available which was inadmissible, because it
was irrelevant until a particular defence was raised e.g., to rebut the plea of alibi.
(c)To contradict evidence of good character given by the defence.
116.Refreshing memory.—A witness may not read his evidence or refer to notes of
evidence already given by him; but he may, while under examination, refresh his
memory by referring to any writing made by him at the time of the transaction
concerning which he is questioned, or so soon afterwards that the court considers it
likely that the transaction was at that time fresh in his memory. He may also refer to any
such writing made by another person, but read by himself within the time aforesaid if,
when he read it, he knew it to be correct. Whenever a witness may refresh his memory
by reference to any document, he may, if the court is satisfied that there is sufficient
reason for the non-production of the original, be permitted to refer to a copy of such
document. An expert may also refresh his memory by reference to professional
treatises (IEA.s.159). Any writing referred to under the provisions of this paragraph must
be produced and shown to the adverse party if he required it, and that party may, if he
pleases cross-examine the witness upon it (IEA.s.161).

117. Notes referred to are not evidence of themselves. —But a witness who refreshes
his memory by reference to writing must always swear positively as to the fact, or that
he has a perfect recollection that the fact was truly stated in. the memorandum or entry
at the time it was written (IEA.s.160). If on referring to a memorandum not made by
himself he can neither recollect the fact nor recall his conviction as to the truth of the
account or writing when the facts were fresh in his memory, so that he cannot speak as
to the fact further than as finding it noted in a written entry, his testimony is
objectionable, as being hearsay.
(xviii) Conclusion

118. Rule as to evidence improperly received or rejected. —The Indian Evidence Act
concludes by providing that the improper admission or rejection of evidence shall not be
ground of itself for invalidating a trial if it appears that, independently of the evidence
improperly admitted, there was sufficient evidence to justify the decision of the court, or
that, if the rejected evidence had been received, it ought not to have varied the decision
(IEA.s.167). This provision, while not excusing a court which contravened the law, will
often prevent a miscarriage of justice where the improper admission or rejection of
evidence does not really affect the merits of the case.

119. How to act when in doubt.—If a member of a court-martial is in doubt whether a

statement or document which it is proposed to be put before him is, or is not, admissible
as evidence, the most useful advice that can be given to him is, first to use his common
sense as to whether the matter proposed to be proved has any practical bearing on the
question which he has to try, and, if he thinks that it has, then to consider whether its
admission is excluded by any provision of the Indian Evidence Act e.g., as being
hearsay. He should remember that the enumeration of relevant facts in the Indian'
Evidence Act is so wide that admissibility is the rule and exclusion the exception.

CHAPTER VI
CIVIL OFFENCES

1. Definition of civil offence, and jurisdiction of courts-martial over civil offence. —Civil
offence for the purposes of AA means an offence which is triable by a criminal court
(AA.s.3(ii)).
Courts-martial are prohibited from trying cases of murder or culpable homicide of a
person not subject to military, naval or air force law or cases of rape in relation to such a
person, unless the offence is committed on active service or at a specified frontier post
or at any place outside India.
Subject to the above exceptions a court-martial can try all civil offences committed by a
person subject to AA. (AA.ss.69 and 70).

2.Concurrent jurisdiction.—A criminal court and a court-martial may each have

jurisdiction in respect of the same offence. Adjustment of jurisdiction is provided for by
AA.ss.125 and 126, which give the military authorities the right of deciding by which
court the alleged offender is to be tried, subject, however, to the reservation that, when
a criminal court considers that proceedings ought to be instituted before itself, it may
require the prescribed military authority to deliver over the offender or to postpone
proceedings pending a reference to the Central Government.
It should be noted that the civil offences contained in Chapter VII of the Indian Penal
Code (offences relating to the Army, Navy and Air Force), if committed by persons
subject to AA are not triable by the civil power (IPC.s.139) and are therefore not timable
by a court-martial under AA.s.69. Such an offence may, however, be tried by a court-
martial if it amounts to a military offence or to some other civil offence triable under
AA.s.69 and is so charged.

3. Principles on which jurisdiction should be exercised. —Though a wide power of trial

by court-martial is given, it is not as a rule expedient to exercise the power universally.
Where troops are stationed at places having no competent civil (criminal) courts, it is
necessary to try all offences committed by persons subject to AA by military tribunals.
But inside Indian territory where a competent civil court has been established it is, as a
general rule, desirable to try by a civil (criminal) court a civil offence omitted by a person
subject to AA if the offence is one which relates to the property or person of a civilian or
is committed in conjunction with a civilian, or if the civil authorities intimate a desire to
bring the case before a civil court.

The general rule is, however, subject to qualifications. The line dividing the military from
the civil offence may be narrow. The offence may have been committed within the
military lines. The offender may be one of a body of troops about to proceed on active
service. There may be reasons making the prompt infliction of punishment expedient. In
any such case it may be desirable to try the offence by court-martial.
There may be also considerations arising out of the importance of maintaining
discipline. If offences of a particular kind, or offences generally, are rife in a unit or at a
station, it may be necessary, for the sake of discipline, to try every offence, whether civil
or military, by court-martial, so that the punishment may be prompt and in accordance
with the requirements of discipline.
The heinousness of an offence is also an element for consideration. A trifling offence,
such as would, if tried by a civil court, be properly punishable by a small fine, may well
be punished by the military tribunal immediately, especially if the case is one in which
stoppages may be ordered to make good damage occasioned by the offence. On the
other hand, certain civil offences (e. g., complicated frauds) are not suitable for trial by
court-martial and it would be better if they are relegated to the civil court as should also
any case where intricate questions of law are likely to arise.

4. The Indian Penal Code. —Most of the civil offences, as defined in para I above and
triable by courts-martial, are included in the Indian Penal Code, an Act which codifies
the criminal law of India, but a few, e.g., the offences against the Official Secrets Act
1923, are created by special statutes. It should be noted that words and expressions
defined in the Indian Penal Code have, when used in the AA (unless defined in that
Act), the meaning attributed to them by that Code (AA.s.3(XXV)). Thus, wherever
"theft'', "assault", or "house-breaking" are mentioned in the AA the offence so defined in
the Indian Penal Code is intended. Also all the penal sections of the former Act are
subject to the "general exceptions" of the latter. The Indian Penal Code has been
reproduced in Part III of the Manual.

5. Scheme of the chapter. —The object of this chapter is to give some description of the
civil offences which may come before courts-martial. The list is not exhaustive, but the
more common offences have been treated in greater detail than those which experience
shows rarely, if ever, to come within the cognizance of courts-martial.
Before proceeding to a description of. the various offences it will be convenient to
discuss, first, the punishments which may be awarded, and, secondly, the general
principles as to criminal responsibility, principles, it must be remembered, which are
applicable to military not less than to civil offences.
 (i) Punishments

6. AA.s.69 specifies the punishments which may be awarded for civil offences charged
under that section. If the offence is punishable under any law in force in India with death
or imprisonment for life, a court-martial is empowered

to award any punishment (other than whipping) assigned for the offence. by that law
and such less punishment as is mentioned in AA. It should be note that in substitution
for the punishment assigned by law creating the offence (e.g.,the IPC) a court-martial is
empowered by AA.s.75 to award on active service field punishment to any person below
the rank of WO and in addition to or in substitution for any such punishment, any one or
more of the punishments specified in AA.s.73.
With regard to every other civil offence charged under AA.s.69, the effect of the section
is to empower courts-martial to award imprisonment upto 7 years or such less
punishment as is mentioned in the AA or the punishment (other than whipping) which
under the civil law may be awarded for the offence.
Courts are, of course, subject to the limitation placed on their powers of punishment
e.g., a DCM cannot award a higher punishment than two years imprisonment.

7. A comparison of the various punishments specified in the Indian Penal Code will be a
guide to the court as to the heinousness of each offence in the eye of the law. It must be
remembered that each punishment specified is a maximum and that, except in the case
of offences for which an obligatory punishment is assigned (e.g., death or imprisonment
for life for murder), any less punishment, if authorised, may be awarded by a court-
martial for a civil offence, even if such punishment is not one which a civil court could
have awarded, e.g., dismissal from the service. In awarding punishment for a civil
offence a court-martial should be guided by exactly the same principles as those which
guides it in punishing military offences.
(ii) Responsibility for Crime

8. Every one responsible for natural consequences of his actions. — The general rule is
that a person is responsible for the natural consequences of his acts. If, therefore, a
person's acts, and the natural consequences which follow them, bring him within the
penal provisions of the IPC, he is criminally responsible under that code, unless his
case falls within one of the "general exceptions" (IPC chapter IV) or any special
exception applicable to the particular offence. Thus, a person who kills another under
circumstances which amount to murder as defined in the Code (IPC.s.300) is liable to
the punishment assigned to that offence, but if he killed the other while himself in such a
state of involuntary intoxication as would bring him within the terms of IPC.s.85, or in the
lawful exercise of his right of private defence (general exceptions), he is excused, while
if he did it under grave and sudden provocation (a special exception) his offence is
reduced to culpable homicide.

9. Illegal omissions.—Words in the code, which refer to acts, also extend to illegal
omissions (IPC.s.32), that is, omissions to do what a person is legally bound to do. The
omission to do anything which one is not bound by law to do is not an offence: thus, if a
man sees another drowning and is able to save him by holding out his hand, but omits
to do so, even in the hope that the other may be drowned, still he is not criminally
responsible. On the other hand, where the law imposes upon a person the duty of
performing some particular act he is held responsible if he omits to do so. Every person
who has charge of another, e.g., a child, a person of unsound mind, an invalid, or a
prisoner, is bound to provide him with necessaries if he is so helpless as to be unable to
provide himself, and if death results from a neglect of such duty, the person in charge
will be responsible unless he can show some good excuse. So, in the case of an animal
known to be dangerous, the person in charge is bound to take such precautions as will
safeguard the public from danger.

10.Omission to perform duty—Similarly, if a person undertakes to do any act the

omission of which may endanger human life (as for instance, warning persons from a
range whilst firing is going on), and without lawful excuse omits to discharge that duty,
he is responsible for the consequences. Again, if a person undertakes to administer
surgical or medical treatment, or to do any other act which may be dangerous to human
life, he is responsible if death results from a want of reasonable care and skill on his
part. For instance, if a sepoy was to undertake to cut off the trigger finger of another
sepoy and mortification set in, he would be responsible for the consequences of his act.
In the class of cases referred to here, there would rarely be such intention or knowledge
as would make the offence murder or culpable homicide under the IPC. It might often,
however, amount to causing death by a rash or negligent act contrary to IPC.s.304A.

11. Parties to offence. —The responsibility of a person for the natural consequences of
his act is not limited to the simple case where he is present, and actually commits an
offence with his own hand.

12. Assisting offence, —Thus, the IPC provides that when a criminal act is done by
several persons, in furtherance of the common intention of all, each is liable or that act
as if he had done it alone (IPC.s.34). If, therefore, two or three men go out to commit
house-breaking and one waits at the corner of the street to keep watch while the others
break into the house, the watcher will be guilty of house breaking equally with the
others, though he never goes near the house. Further, when an offence is committed by
means of several acts, whoever intentionally co-operates by doing any one of those
acts, commits that offence (IPC.s.37). If, therefore, in pursuance of a common intention
to commit theft, A steals goods in a house and hands them to B who is waiting outside,
and B, then carries them away, both are guilty of theft. On the other hand, if the offence
charged involves some special intent, it must be shown that the assistant was cognisant
of the intentions of the person whom he assisted (IPC.s.35); thus, since B in the last
example knew of A's intention to steal, and waited outside the house to assist him, his
offence was theft, but if he had been unaware of the intention till the goods were
handed to him his offence would not have been theft but receiving stolen property.

13.Common intent. —If several persons combined together for an unlawful purpose or
for a lawful purpose to be effected by unlawful means, each is responsible for every
offence committed by any one of them in furtherance of that purpose but not for an
offence committed by another member of the party which is unconnected with the
common purpose unless he personally instigates or assists in its commission. Thus, if
some of the party of house-breakers in the example given above are armed with
revolvers and the others all know it, thus showing a common intention not only to break
into the house but to carry out their criminal object there in spite of all resistance, and
the owner is killed in defending his property, all the party, including even the watchers
outside, are guilty of murder. But if two persons go out to commit theft and one,
unknown to the other, puts a pistol in his pocket and shoots a man, the other is not
responsible for the killing.

14. Abettor present when offence committed. —Another case in which a person incurs
full responsibility for the act of another is when an abettor (see para 15 below) is
present at the place when the act or offence he abets is committed (IPC.s.114). In this
case, and in the cases referred to above, the person made responsible for the acts of
another is deemed to be guilty of the actual offence committed and should be so
charged, i.e., all the party in first example in para 12 should be charged with house-
breaking, and, if murder results from the pursuit of their common intention (see para
13), with murder also. Similarly, if A instigates B to murder C (abetment) and A is
present when B commits the murder, A is guilty of murder and should be so charged.

15. Abetment. —A person may make himself responsible for the crime of another by
instigating, conspiring with, or intentionally aiding the actual criminal in one of the ways
described in IPC ss.107 and 108. In such cases he cannot (except as already
mentioned) be charged with the actual offence committed by the other, and must be
charged with "abetting" that offence. The abetment of an offence is punishable under
IPC.ss.109 to 117 and AA,ss.66 to 69.

16. Innocent agent. —It does not always follow that the person who commits the offence
which is abetted is himself criminally responsible. Thus, if A instigates B (a child under
seven years of age) (IPC.s.82) or a person in a state of involuntary intoxication
(IPC.s.85) to murder C, and B does so, A has abetted the murder of C, but B has
committed no offence. Similarly, if a sepoy knowing that a pair of boots do not belong to
him, induces a comrade to steal them by representing that they are his property and not
the property of the actual possessor, the former is guilty of abetting theft though the
latter has committed no offence at all (IPC.s.108; illustration (d)).

17.Harboring offenders.—A person may incur criminal responsibility even after an

offence has been committed by helping the offender to escape from justice, or by
destroying the evidence of his guilt. This form of responsibility is provided for in the
sections of the IPC which deal with harbouring and screening an offender (IPC.ss.136
and 212 to 2I6A). Persons who offend against these sections do not, however, make
themselves, fully responsible for the original crime, as in the cases referred to in para 14
above, and cannot be so charged. The word "harbour" includes the supplying a person
with shelter, food, drink, money, clothes, arms, ammunition, or means of conveyance, or
the assisting a person in any way to evade apprehension (IPC.s.52A). The wife or
husband of an offender is exempted from any penalty for harbouring that offender; an
exception to this rule is, however, the harbouring of a State prisoner who has escaped
(IPC.s.130 and exception to s. 216A).

18. Attempt to commit offence.- A person who attempts to commit an offence or to

cause such an offence to be committed, and in such attempt does any act towards the
commission of the offence, is criminally responsible even though the attempt is
unsuccessful (IPC.s.511: as to attempts to murder see s.307).
A mere intention to commit an offence unaccompanied by acts will not amount to an
actual "attempt", nor will acts themselves if they are merely preparatory to the
commission of the offence. For instance, if A, intending to murder B by poison,
purchases poison and mixes it with food which remains in A's keeping, the mere mixing
with food is not an attempt to murder by poison. Some act must be done which is more
than an intention or preparation, and which is a real step towards the commission of the
offence; thus, if A had placed the food on B's table, or delivered it to B's servants to
place it on B's table, he would have been guilty of an attempt to murder.
It is no defence to a charge of attempting to commit a crime that it was legally or
physically impossible for the offender to have committed the full offence e.g.,A with the
intention of stealing B's wallet puts his hand in the latter's pocket but finds the pocket
empty, will still be guilty of an attempt to commit theft.
Where a person is charged with committing an offence but the evidence shows merely
an attempt to commit that offence, a court-martial may convict him of the attempt to
commit the offence charged (see AA.s.139 (8)).
(iii) Homicide

19. Culpable homicide. —Whoever causes the death of a human being by doing an act
—
(a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is likely to cause death, or
(c) with the knowledge that he is likely by such act to cause death. commits at the least
culpable homicide (IPC.s.299) and his act may amount to murder if certain further
conditions as to his intention and knowledge are present. The intention or knowledge,
express or implied, of the accused in such a case is therefore all important and it lies on
the prosecution to show, by direct evidence or by inference from the facts of the case,
that he had such intention or knowledge as is necessary to constitute the offence
charged. In arriving at a decision upon this point a court will,however,presume that a
man intends the natural consequences of his acts. This presumption will often arise in
shooting cases or in other cases where death is caused with a lethal weapon.

20. Murder. —The kinds of intention or knowledge which will make culpable homicide
amount to murder are set out in IPC.s.300. If these are compared with para19 above, it
will be seen that, subject to certain exceptions which are considered in para21, culpable
homicide of the first kind is always murder. Culpable homicide of the second kind is
murder, if it is done with the intention of causing such bodily injury, as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or it is
done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death.
Culpable homicide of the third kind is murder only if the person committing the act,
which causes death, knows that it is so imminently dangerous that it must in all
probability cause either death or such bodily injury as is likely to cause death and
commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid. See illustrations to IPC.s.300.

21. Exceptions.—Culpable homicide which would otherwise be murder is reduced to

"culpable homicide not amounting to murder" in certain circumstances which are
specified in the exceptions to IPC.s.300. Briefly these are—
(a) Grave and sudden provocation.
(b) Right of private defence exceeded.
(c) Powers of public servant exceeded.
(d) Sudden fight.
(e) Consent by the person killed.
The full text of these exceptions will be found in the IPC (Exceptions 1 to 5 to s.300)
which should be consulted, but the first is the most frequently met with and demands
more detailed notice.

22. Grave and sudden provocation. —It must be clearly established in all cases where
grave and sudden provocation is put forward as an excuse that at the time when the
crime was committed the offender was actually so completely under the influence of
passion arising from the provocation that he was at that moment deprived of the power
of self-control; and with this view it will be necessary to consider carefully the manner in
which the crime was committed, the nature of the weapon used, the length of the
interval between the provocation and the killing, the conduct of the offender during that
interval, and all other circumstances tending to show his state of mind.

23. Subject to certain provisos. —This exception is further subject to three provisos—
(a) The provocation must not be sought by the person provoked. Thus, if A provokes B
to strike him with the express purpose of providing himself with an excuse for killing
B,and A kills B, the offence is murder.
(b) Provocation given by anything done in obedience to law or by a public servant in the
lawful exercise of his powers, does not reduce murder to culpable homicide. Thus a
NCO lawfully arresting a sepoy may give great provocation to the latter, but if the arrest
is lawful, the sepoy cannot successfully plead grave and sudden provocation if he kills
the NCO.
(c) Provocation given in the lawful exercise of the right of private defence does not
reduce murder to culpable homicide. For example, A, in defending himself, and his
property from B who is trying to rob him, strikes B in the face with a whip. This so
enrages B that he kills A. B cannot successfully plead grave and sudden provocation.

24.Culpable homicide of persons other than the one intended.—It will be noticed that
the intention and knowledge referred to in para 19 are an intention to kill or vitially injure
any one, and a knowledge that the death of any one is likely. Culpable homicide may,
therefore, be committed by a person who intends to kill one man and kills another by
mistake. In such a case the character of the culpable homicide is determined by what its
character would have been if the person intended had been killed (IPC.s.301).

25. Burden of proof. —According to IEA the killing being established, the burden of
showing such intention or knowledge as makes the crime murder or culpable homicide
is still upon the prosecution (IEA.s.103). If, however, facts raising a presumption of such
intention or knowledge (e.g., the nature of the weapon used) are shown to exist, such
burden may be deemed to have been discharged. This killing and the requisite intention
or knowledge being established, the burden is on the accused of showing that his case
falls within any general or special exceptions (IEA.s.105); as for instance, by showing
that he acted under a bona-fide mistake of fact and the fact (if true) would have excused
him, or that he acted on grave and sudden provocation.

26.Penalty for murder. —The penalty for murder is death, or imprisonment for life
(IPC.s.302). A court can, at its discretion, award either penalty, but must sentence the
offender to one or the other. When a person already under sentence of imprisonment
for life is convicted of murder the death sentence is obligatory (IPC.s.303).

27. Causing death by rash or negligent act. —Whoever causes the death of any person
by doing any rash or negligent act, not amounting to culpable homicide, may be
punished with imprisonment extending to two years or with fine or both (IPC.s. 304A).
A person is criminally responsible for causing death, if he fails to take proper
precautions when doing anything which is in its nature dangerous, even though he had
not the least intention of bringing about the consequences of his act. It must be shown,
in order to justify a conviction that the negligence from which death resulted was so
gross and culpable and showed such disregard for the life and safety of others as to
amount to a crime and to conduct deserving punishment.
Thus, if a sepoy fires his rifle without taking the proper precautions under the particular
circumstances and the bullet kills a person, the sepoy will be criminally responsible for
his death. Again, if a person points a gun at another in sport and pulls the trigger without
proper precautions to ascertain, that the gun was unloaded, he will be responsible if
death results, as the incident might clearly have been prevented if he had not been
culpably negligent.
Rashness and negligence are not the same thing. Mere negligence cannot be
construed to mean rashness. There are degrees of negligence and rashness and in
order to be criminally liable the rashness must be of such a degree as to amount to
taking hazard knowing that the hazard was of such a degree that injury was most likely
to be occasioned thereby. The criminality lies in running the risk or doing such an act
with recklessness and indifference to the consequences.
Other examples of this offence are: —Causing death by rash or negligent driving; and
by negligently mixing a live round with blank cartridges.
Once it is proved that the death of the victim was a direct consequence of the rash or
negligent act of the offender, the fact that the victim had contributed to his death by his
own negligence, will not exonerate the offender; since the doctrine of contributory
negligence does not apply to criminal liability when the death of a person is caused
partly by the negligence of the offender and partly by his own negligence.
 (iv) Hurt and grievous hurt

28, "Hurt" and ''grievous hurt" defined. —Whoever causes bodily pain, disease, or
infirmity to any person is said to cause "hurt" (IPC.s.319) and if that hurt is one of the
graver kinds (specified in IPC.s.320) he is said to cause "grievous hurt". Whoever does
an act with the intention of causing hurt to any one, or knowing that he is likely to cause
hurt to any one, and does thereby cause hurt to the same or any other person, is said
"voluntarily to cause hurt". If the hurt intended or known to be likely to be caused is
grievous hurt and the hurt actually caused is grievous hurt (either of the same or a
different kind) he is said "voluntarily to cause grievous hurt" (IPC.ss.321 and 322).
Voluntarily to cause hurt or grievous hurt to any one is an offence which varies in its
gravity according to the instrument used, the provocation given, the status of the person
hurt, and the object of the offender.
(v) Criminal Force and Assault

29. "Force" defined. —The sections of the IPC which deal with these crimes are chiefly
of interest to officers as defining the offences described in AA.ss.40(a) and 47. The
definition of force in the IPC (IPC.s.349) is of a highly metaphysical nature but, for
ordinary purposes, there is little difficulty in understanding what is meant by the
application of force to a person, or through a thing to a person, and whoever
intentionally uses force to a person without his consent, in order to commit an offence,
or with an intention to cause injury, fear or annoyance, is said to use "criminal force''
(IPC.s.350). Whoever makes any gesture or preparation—
(a) intending to cause any one to apprehend that the person making the gesture, etc., is
about to use criminal force to him, or
(b) knowing it to be likely that such gesture, etc., will cause such an apprehension, is
said to commit an "assault" (IPC.s.351). Mere words cannot amount to an assault, but
words accompanied by gestures or preparations may give the latter such a meaning as
to amount to an assault.

30. Difference between assault and use of criminal force. —It will be noticed that if
actual violence is done to a person, or attempted, an assault is not the proper
description of the offence, which then becomes "using criminal force", or "attempting to
use criminal force", as the case may be.
(vi) Rape

31. Penetration,—Rape is defined in IPC,s.375. Penetration is sufficient to constitute

such sexual intercourse as is there referred to; it must therefore be proved that there
was actual penetration of the female organ by some part of the male organ. The
slightest penetration will be sufficient; it is not necessary to prove that there was such
penetration as would be sufficient to rupture the hymen. Whether there was an emission
of semen or not is immaterial.
It is not an excuse that the woman was a common prostitute or the concubine of the
ravisher, if the offence was committed by force or against her will; though proof of such
facts is admissible, and is, of course, important in considering whether or not she is
likely to have consented.
32.Consent, when valid.—A consideration of IPC.s.375 will show that the offence
consists of sexual intercourse with a woman against her will, without her consent, or
even with her consent when such consent has been obtained by putting her in fear of
death or hurt, or by pretending to be her husband, or with or without her consent when
she is under sixteen years of age; further, consent is not valid under the IPC when given
by a person who from unsoundness of mind or intoxication, is unable to understand the
nature and consequence of that to which she gives consent (IPC.s.90). Sexual
intercourse with a woman who has, by drugs or liquor,
been reduced to such a condition as is indicated above, will therefore constitute rape.

33. Caution as to evidence in cases of alleged rape—A word of caution regarding

charges for this offence is necessary. As Sir Matthew Hale, an eminent judge has said:
"It is an accusation easily to be made, and hard to be proved, and harder to be
defended by the party accused though never so innocent". Such charges are often
brought from motives of revenge or blackmail, or to shield a reputation which has been
voluntarily endangered. Courts should, therefore, examine and sift the evidence,
especially that of the woman said to have been ravished, with the greatest care.

34. Attempted rape.—When the offence is incomplete for want of penetration the
accused may be convicted of an attempt to commit rape, provided that the court is
satisfied that it was his intention to gratify his passions at all events and notwithstanding
any resistance. An indecent assault upon a woman does not amount to an attempt to
commit rape, unless the court is satisfied that there was a determination in the accused
to gratify his passions at all events and in spite of all resistance.
(vii) Theft and Cognate Offences

35. Property which can be subject of theft.—Theft is defined in IPC.s.378. It can only be
committed in respect of moveable property which is in the possession of some one.

36. Moveable property.—All corporeal property except land and things attached to it is
moveable property (IPC.s.22). Things attached to the land may become moveable
property by severance, and the act of severance may of itself be theft. The cutting down
of a tree, with the intention of dishonestly removing it without the owner's consent, is
thus theft (IPC.s.378, illustration (a)).

37.Property must be in possession of some one. —The property must be in the

possession of some one, but it does not matter whether that possession is rightful or
wrongful. A thing can be stolen from a thief who has himself stolen it, not less than from
the rightful owner of the thing. A person cannot steal a thing which is in his own
possession, or a thing which is not in the possession of any one. Wild animals (including
game and fish) while at large, and not being in the possession of any one, cannot be the
subject of theft, but if they have been tamed or are in confinement they can be stolen
like any other property. When a man mislays property in his own house it still remains
legally in his possession, and any one finding it is bound to assume that it belongs to
him.
38.Possession through another. —Property in the possession of a person's wife, clerk
or servant, on that person's account is in that person's possession within the meaning of
the IPC (IPC.s.27)
The same principle also extends to other cases where a man's property is in the
physical possession of some one to whom he has entrusted it and from whom he can
demand it unconditionally when ever he pleases. Thus, where a servant has his
master's plate in his keeping or a shepherd is in charge of his master's sheep; the legal
possession remains with the master; similarly, the landlord of a hotel retains the legal
possession of the forks and spoons which his customers are handling at the dinner
table and a shop-keeper retains the legal possession of goods which a purchaser takes
up in order to inspect them. The possession of anything by a servant on his master's
behalf is thus considered to be the possession of the master or the possession of the
servant according to the circumstances under which the servant originally received it. If,
for instance, a servant is given the custody of anything by his master, or by a fellow-
servant who has been given the custody of it by his master, the servant will have no real
possession of the thing, and the possession will remain with the master. Therefore, any
dishonest taking of the thing by the servant will be theft. If, however, a servant receives
anything from a third person on his master's behalf, then the servant will have
possession of the thing, and the master will have no possession until the servant does
some act by which the possession is transferred from the servant to the master—as, for
example, by placing it in a till, cart or godown, in which the master's goods are kept or
carried.

39.What constitutes theft.—To constitute theft there must be—

(a) a dishonest intention to take the property out of the possession of its real or
temporary owner (i.e.,he who has "possession" of it) without his consent, and
(b) a moving of the property in order to such taking (IPC.s.378).
The intention must be dishonest one, that is, an intention to cause wrongful gain to one
person or wrongful loss to another (IPC.s.24) and therefore inconsistent with a bonafide
claim or right. If the property is taken under the supposition, honestly entertained, that
the taker has an immediate right to possession, the intention is not dishonest and there
is no theft; on the other hand, a person who has pawned his watch can steal the watch
from the pawnbroker, because he has no right to possession until he has redeemed it. A
claim of right would not justify a person in taking property out of another's possession
without his consent with the intention of thereby coercing the other to pay a debt due to
the taker. It must be remembered that consent is not valid if given under fear or
misconception (IPC.s.90).

40. Moving.—In addition to the dishonest intention there must be a moving of the
property in order to the taking of it. It is not necessary to prove that the goods were
removed out of their owner's reach, or were carried away at all from the place in which
they were found. Here all that is necessary is movement, and, that being proved, and
the other ingredients of theft being present, the offence is complete.
41.Other allied offences.—Closely allied to theft are the offences of dishonest
misappropriation and criminal breach of trust. These differ from theft in that, while theft
is committed in respect of property in the possession of another, these two offences
consist in dealing dishonestly with property which is innocently or lawfully in the
possession of the offender. shop-keeper retains the legal possession of goods which a
purchaser takes up in order to inspect them. The possession of anything by a servant
on his master's behalf is thus considered to be the possession of the master or the
possession of the servant according to the circumstances under which the servant
originally received it. If, for instance, a servant is given the custody of anything by his
master, or by a fellow-servant who has been given the custody of it by his master, the
servant will have no real possession of the thing, and the possession will remain with
the master. Therefore, any dishonest taking of the thing by the servant will be theft. If,
however, a servant receives anything from a third person on his master's behalf, then
the servant will have possession of the thing, and the master will have no possession
until the servant does some act by which the possession is transferred from the servant
to the master—as, for example, by placing it in a till, cart or godown, in which the
master's goods are kept or carried.

CHAPTER VII
DUTIES IN AID OF THE CIVIL POWER

1. Introduction. —The primary role of the regular Army is to defend the country against
external aggression and troops are trained and equipped for such a task. The
assistance of the armed forces (military, naval and air forces) (Cr. P.C.,1973 s. 132(3))
is however, sought by the civil government for various internal duties, both in peace and
in war. The types of aid so sought by the civil government are as under: —
(a) maintenance of law and order;
(b) maintenance of essential services;
(c) assistance during natural and other calamities; and
(d)other types of assistance, including assistance in development projects.
above types of assistance. In its restricted meaning, it is to be applied to the aid
given by the Army for the maintenance of law and order and this chapter mainly deals
with various aspects of the same.

2. Maintenance of law and order. —The responsibility of maintaining law and order is
primarily that of the State Governments. State Governments have adequate machinery
at their disposal for the dispersal of unlawful assemblies, suppression of disturbances
and riots and the maintenance of law and order generally, by arrest and punishment of
offenders. Civil authorities are first required to utilise the civil forces at their disposal for
restoring law and order, and seek the aid of the Army only when the civil forces are
inadequate to deal with the situation (of this the civil authority is the judge). The causes
for civil unrest and disturbances may be many but primarily they are due to labour
dissatisfaction and industrial disputes, strikes organised by labour for redress of real or
imaginary grievances, and disputes among religious sections and rival political parties.
3. Unlawful assembly and riot. —Before examining the nature and extent of aid required
to be rendered by the Army for the maintenance of law and order, it would be useful to
know the technical meaning of the terms "unlawful assembly" and "riot".
Unlawful assembly.—An assembly of five or more persons whose common object is to
—
(a) overawe by criminal force, or show of criminal force, the Central or any State
Government or Parliament or the legislature of any State or any public servant in the
exercise of his lawful power; or
(b) resist the execution of law, or any legal process; or
(c) commit any mischief or criminal trespass, or other offence; or
(d) obtain possession of any property or to stop a right of way or to prevent lawful use of
water or to enforce any right or supposed right against any person in enjoyment of such
property or thing, by means of criminal force or show of criminal force; or
(e) compel any person to do what he is not legally bound to do, or to omit to do what he
is legally entitled to do, by means of criminal force or show of criminal force.
An assembly which was not unlawful when it assembled may subsequently become an
unlawful assembly (IPC.s.141),
A person who being aware of the facts which render an assembly unlawful intentionally
joins it or continues in it is said to be a member of an unlawful assembly (IPC.s.142).
Riot. —Whenever force or violence is used by an unlawful assembly or by any member
thereof, in prosecution of the common object of such assembly, it becomes a riot
(IPC.s.146).

4. Dispersal of unlawful assemblies. —The law governing the dispersal of unlawful

assemblies is contained in Chapter X (ss. 129 to 132) of the Cr PC, 1973 (2 of 1973).
Any executive magistrate or officer incharge of a police station or, in the absence of
such officer in-charge, any police officer, not below the rank of a sub-inspector may
command any unlawful assembly or any assembly of five or more persons likely to
cause a disturbance of the public peace, to disperse; and it becomes the duty of every
member of such an assembly to disperse accordingly (Cr PC, 1973. s. 129 (1)).

5. Use of force to disperse unlawful assemblies. —If, upon being so commanded, any
such assembly does not disperse, or if, without being so commanded, it conducts itself
in such a manner as to show a determination not to disperse, any executive magistrate
or officer incharge of police station referred to in para 4 above, may proceed to disperse
such assembly by force, and may require the assistance of any male civilian for the
purpose of dispersing such assembly and, if necessary, for arresting and confining the
persons who form part of it, in order to disperse such assembly or that they may be
punished according to law (Cr PC, 1973. s. 129(2)).

6.When the civil authorities are incapable of dispersing such an unlawful assembly by
the use of all the resources at their disposal, they can seek the aid of the armed forces,
if it is necessary for the public security that such assembly should be dispersed. The
executive magistrate of the highest rank who is present may cause it to be dispersed by
the armed forces (Cr PC, 1973. s. 130(1)).
7.Duties of officer commanding troops to disperse unlawful assemblies. — When an
executive magistrate decides to disperse any unlawful assembly by the armed forces,
he may require any officer (as defined in Cr PC, 1973. s.132 (3)(b)) in command of any
group of persons belonging to the armed forces to disperse such assembly with the help
of armed forces under his command and to arrest and confine such persons forming
part of it, as the magistrate may direct, or as it may be necessary to arrest and confine
in order to disperse the assembly or to have them punished according to law (Cr PC,
1973. s. 130 (2)). Every officer of the armed forces is required to obey the requisition of
the magistrate in such manner as he thinks fit but in doing so, he is to use as little force
and do as little injury to person and property as may be consisent with dispersing the
assembly and arresting and detaining such persons (Cr PC,1973.s.130(3)).

8. Principles governing use of force. —The use of force in dispersal of unlawful

assemblies, is governed by the following principles: —
(a) Necessity—
(i) There must be justification for each separate act;
(ii) Action should not be taken in one place with the object of creating effect in another
place;
(iii) There should be no reprisals;
(iv) Action should be preventive and not punitive.
The necessity is deemed to be established, when the executive magistrate requisitions
the aid; or when an officer or JCO acts under circumstances stated in para 10 below, or
a WO or OR acts under circumstances stated in para 12 below,
(b) Minimum force—
No more force is to be used than is necessary to achieve the immediate object. This
refers to the actual amount of force used and not to the number of troops employed.
(c) Impartiality—
Officers and other persons must be impartial in communal disturbances or labour
strikes. They should not accept gifts or show favours.
(d) Good faith—
Officers and other persons must act in good faith. Nothing is said to be done or believed
in good faith which is done or believed without due care and attention (IPC.s.52).

9. Method of dispersal of unlawful assembly. —The actual use of troops for the
dispersal of an unlawful assembly is the most difficult of all operations in aid of civil
power. It is, therefore, imperative that all ranks fully understand its implications. Troops
employed will not use police methods or be armed with police weapons like lathies and
truncheons. They will use their own weapons and military tactics to deal with the
situation. When fire is to be opened on a mob, the procedure should be as follows: —
(a) Before firing. —If possible the crowd should be warned that unless the unlawful
assembly disperses, fire is to be opened and that it will be effective. The magistrate
present should give this warning in vernacular, if he is able to do so. Attention of the
crowd can be attracted by sounding a bugle or whistle. A warning notice in appropriate
vernacular, where possible, should be carried and exposed to the mob at the required
moment. The police force present at the spot does not come under the command of the
officer commanding the body of troops. Troops should be kept out of sight of the mob,
until they are to be actively used.
(b) During firing. —Firing will be controlled strictly. If officer commanding the body of
troops considers that firing by a single or a few individuals is likely to prove sufficient, he
will issue orders to one person of a few specified individuals. If more fire is required, he
will issue orders to specified section commanders. While giving fire orders, he will
indicate definite targets and state the number of rounds to be fired. The most effective
targets are usually the ring leaders. Troops should shoot for effect. They should
normally direct their fire low in order to injure and incapacitate rather than to kill. Firing
with blank ammunition or over the heads of the crowd is strictly forbidden. Rapid fire
should never be necessary except in self- defence. Pauses in firing will give the crowd
an opportunity to disperse. Firing should be stopped immediately the crowd begins to
disperse. It should be ensured that the mob does not get too close, to the troops, so as
to hamper their tactical handling of weapons or to get involved into hand to hand
fighting.
(c) After firing. —Immediate steps should be taken to succour the injured. Arrangements
should be made for first-aid, medical attention, and evacuation of injured rioters to the
hospital. All empty cases should be recovered and the number of rounds fired counted
and recorded in a diary. Important witnesses to the incident should be detained with the
help of the executive magistrate. All arrested rioters should be handed over to the civil
authority for being dealt with in accordance with the law. It is absolutely essential that a
minute to minute and item by item diary of events is maintained by the officer
commanding the body of troops. Importance of this record cannot be over-emphasised,
since in case of an inquiry about the firing, such a diary would be most useful.

10. Power of commissioned officers to disperse unlawful assemblies. —It may happen
that when troops are called out for dispersing unlawful assemblies, an executive
magistrate may not be present on the spot to handle the situation. In such cases when
public security is manifestly endangered by such assembly and when no executive
magistrate can be communicated with, any commissioned or gazetted officer of the
armed forces may disperse such assembly with the help of the troops under his
command and may arrest and confine any person forming part of it, in order to disperse
such assembly or that they may be punished according to law. While so acting, the
officer or JCO must, when it is practicable for him to do so, communicate with an
executive magistrate, and thereafter obey the instructions of such magistrate, as to
whether or not he should continue the action (Cr PC, 1973. s. 131). If the magistrate
directs to cease action, such direction must be carried out. The use of force in such
circumstances is also governed by the same principles enumerated in para 8 above.

11. Protection of officers and men acting in aid to civil power - No commissioned officer
acting in good faith under circumstances referred to in para 10 above, no officer acting
at the request of an executive magistrate under circumstances referred to para 7 above,
no JCO, WO or OR acting in obedience to any order of his superior officer which he was
bound to obey by law., is deemed to have committed any offence and no prosecution
can be instituted in any civil (criminal) court against any such officer, JCO, WO or OR
except with the sanction of the Central Government (Cr PC, 1973. s. 132).
12. Rights of WOs and OR to act in an emergency. — As stated above, in the absence
of a magistrate, only a commissioned officer is competent to take action for dispersal of
an unlawful assembly when public security is manifestly endangered and a WO or OR
cannot do so on his own. However, a WO or OR can exercise the right of private
defence of person or property (IPC.s.96), under the ordinary civil law to safeguard the
lives of himself, the persons under his command and other persons and to protect any
property against theft, robbery, mischief, or criminal trespass (IPC.ss.97 to 106).

13. Powers of WOs or OR to arrest rioters/members of unlawful assembly. —A WO or

OR has no power to arrest on his own, any rioters or members of an unlawful assembly
under the circumstances referred to in para 10 above. However, under the powers
conferred on every citizen by civil law, a WO or OR can arrest any person, who, in his
view, commits a nonbailable and cognizable offence or any proclaimed offender and
hand him over to the police authorities without unnecesary delay (Cr PC,. 1973. s. 43).
Offences of murder, culpable homicide, attempt to murder, voluntarily causing grievous
hurt by dangerous weapon, theft, robbery and docoity are nonbailable and cognizable
offences. In making the arrest, when such person forcibly resists the endeavour to
arrest him or attempts to evade the arrest, a WO or OR can use force but no more force
is to be used than is necessary. In using force, under these circumstances, he has no
right to cause the death of such person unless he is accused of an offence punishable
with death or imprisonment for life (Cr PC, 1973. ss. 46and 49).

14. For other procedural details, see RA paras 301 to 303. For Cr PC provisions
referred to above, see Part. 111.

15. Martial Law —Conditions of extreme disorder may sometimes arise when the civil
authorities, even with the help of the armed forces, are unable to bring the situation
under control. In such. cases Martial Law may be imposed in the disturbed area by a
military commander Martial Law may also be imposed by a military commander when
there is a complete breakdown of civil administration e.g., during an insurrection against
the Government. Martial Law V is. thus. the exercise of the right of private defence by
repelling force by force,

16. Establishment of Military Law. —Martial Law means the suppression of the civil
authority, by military authority, whose sole object is to restore conditions, as
expeditiously as possible, to enable the civil authority to resume charge. By imposing
Martial Law a military commander assumes the appointment of Martial Law
Administrator and takes control of the affected area. He may, however, require the civil
authorities to discharge their normal functions under such conditions as may be
prescribed by him. Being an extreme step, the decision to declare Martial Law has to be
taken at the highest level possible. Before imposing Martial Law, as far as practicable,
the military commander should obtain the approval of the Central Government. Where
the situation is grave, and the circumstances are such that it is not possible to obtain the
prior approval, of the Central Government the military commander may, on his own,
assume supreme authority for the maintenance of law and order. He should, however,
inform the Central Government as soon as possible after Martial Law is proclaimed. He
-should also issue proclamation for the information of the inhabitants that Martial Law
has been declared.

17. Martial Law Regulations, —Since the main object of imposition of martial Law is to
restore law and order and the functioning of essential services vital to the community,
the military commander should issue Martial Law Regulations, specifying therein the
Martial Law offences, punishments for such offences, and constitute military courts for
the trial of offenders against Martial Law.

18. Military courts. —Military courts under Martial Law are convened under the orders of
the Administrator. One civil member having judicial experience should, if possible, be
appointed to each court. These courts will deal with all offences including breaches of
Martial Law Regulations.

19. Act of Indemnity. —When law and order has been restored, and civil authority
resumes charge, civil courts may inquire into the legality of acts of military authorities
while Martial Law was in force. For this reason it is necessary to protect persons who
have been administering Martial Law, -from actions and prosecutions. This is done by
an Act if Indemnity passed by the Parliament (Art 34 of the Constitution), Such an Act
would make transactions legal which were illegal when they took place; free the
individuals concerned from legal liability, and make the judgment of Military Courts valid,
without which sentences passed by them could only be executed within the Martial Law
areas and would automatically cease on the withdrawal of Martial Law. It is to be borne
in mind that production is afforded under an Act of Indemnity only to those where acts
were bonafide and performed in the honest belief that they were part of their duty.

CHAPTER VIII

SERVICE PRIVILEGES

1. Under Chapter V of the AA, persons subject to that Act enjoy certain privileges in
their relation to civil courts and the law administered by these courts. In addition to
these, certain other privileges have been conferred upon these persons by various Acts
of Parliament and Statutes. The most important of these privileges are: —
(a) Immunity from attachment-Under AA.s.28 the military equipment and other
necessaries of a person subject to AA. used by him for the discharge of his duty are
immune from seizure under any decree or order of any civil or revenue court or revenue
officer. Similarly the pay and allowances of such a person are immune from attachment
in the execution of such a decree or order.
(b) Immunity from arrest for debt-- AA.s.29 stipulates that no person subject to AA is
liable to be arrested for debt under any process issued by, or by the authority of. any
civil or revenue court or revenue officer.
(c) Immunity of persons attending courts-martial from arrest.-- AA.s.30 stipulates that no
presiding officer or member of the court-martial. no JA, no party to any proceeding
before a court martial, or his legal practitioner or agent, and no witness acting in
obedience through summons to attend a court-martial will, while proceeding to,
attending or returning from, a court-martial be liable to arrest under civil or revenue
process
(d) Right to pay without deductions. -AA.s.25 stipulates that the pay" of every person
subject to AA due to him as such under any regulation for the time being in force shall
be paid without any deduction other than the deductions authorised by or under the said
Act (see AR 205) or any other Act.
(e) Priority in respect of hearing of. suit or proceedings —By virtue of AA.s.32, civil
courts are to give priority to hearing any civil suit or proceedings in which person subject
to AA are parties so that they may return to their duties on the expiry of leave granted to
them for the purpose of attending such suits or proceedings.
(f) Postponement of suits or proceedings —The Indian Soldiers (Litigation) Act (IV of
1925) provides for the postponement in certain circumstances of civil and revenue
proceedings in which an unrepresented person subject to AA is a party during Special
conditions" and six months thereafter and also modifies the law of limitation for this
purpose.
(g) Privileged will.—Sections 65 and 66 of the Indian Succession Act, 1925 provide that
a person subject to AA has a right to make a "Privileged will" which may be made either
by word of mouth or by writing without complying with the formalities and signatures and
attestation which are required in the case of "wills" made by ordinary persons, if he is
employed in an expedition or engaged in actual warfare.
(h) Exemption from tolls when on duty.—Under s.3 of the Tolls (Army and Air Force) Act
(II of 1901), persons subject to AA while moving under orders of military authorities are
together with the members of their families and belongings exempted from payment of
any tolls.
(j) Appointment of an attorney.—Under order XXVIII, Rule 1 of the Civil Procedure
Code, 1908, a person subject to AA, who cannot obtain leave of absence, may
authorise any person to sue or defend a suit or proceedings on his behalf and to take all
steps or do all the acts which can be taken or done by him personally.
(k) Exemption from Court Fee in certain cases.—Section 19(i) of the Court Fees Act,
1870 exempts from court fees a power of attorney executed by a person subject to AA,
who is not in civil employment.
(i) Receipts/or pay need not be stamped.—Receipts given by NCOs and OR for Pay
and Allowances are exempted from duty under the Stamp Act, 1899.
(m)Pension protected.—All Government pension (including military pensions) are
protected from attachment in the execution of the decrees of Civil Courts (s.11 of
Pension Act, 1871; Proviso (g) to s.60 of Code of Civil Procedure 1908).