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Colonel Amit Kumar

Judge Advocate General’s
Department

“Professional knowledge and professional competence are the

main attributes of leadership. Unless you know, and the men you
command know that you know your job, you will never be a
leader”…..SAM

BY THE AUTHOR

Discipline in the Armed Forces is the basic element and a mandatory

requirement for achieving success in all types of warfare. It is therefore,
expected from the Officers dealing with disciplinary matters to be well
acquainted with the provisions of law for the proper administration of justice.
As an Officer of the Judge Advocate General's branch it is not only our duty to
provide quality assistance to the Commanders and their Staff in dealing with
complex legal issues but also to ensure that there are no procedural lapses or
shortcomings in the conduct of disciplinary proceedings by the authorities
concerned. Hence, imperative need was felt to provide the Units/ Formations
with a ready reckoner for the benefits of the environment so as to avoid
miscarriage of justice occurring due to incorrect interpretation or ambiguity as
to the forms of proceedings. With this aim in view a 'Handbook' was compiled
and prepared. I have tried to summarise the relevant part of Military Law for the
guidance of the Officers while dealing with legal matters. I have attached
samples containing forms of Hearing of charge, Summary Trials and dummy
proceedings of Court of Inquiry, Summary of Evidence and Summary Court
Martial alongwith relevant Flowcharts for proceeding of case files and actions
to be taken by the respective agencies while dealing with the legal issues.
This book will not only assist the Officers of the Indian Army but will also
guide any other legal fraternity and the aspiring students of Law. I shall
consider this attempt well rewarded, if it proves useful to the environment.
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This book is dedicaTed To our

BraveHearts

Note :-In this book at many places there is reference of RPC

and CrPC of Jammu and Kashmir 1989 SAMVAT which may
now be referred to the analogous provisions of CrPC and IPC
as applicable in rest of India since Article 370 stands repealed
from the Constitution of India.
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INDEX
S Chapter Subject Page No
No
From To

1. Chapter - 1 Action after Incidents 05 05

(SAO – 6/S/2000)
2. Chapter - 2 Arrest and Suspension 06 15

3. Chapter - 3 Investigation of Offence 16 17

4. Chapter - 4 Court of Inquiry 18 27

5. Chapter - 5 Hearing of Charge 28 31

6. Chapter - 6 Summary Trial of NCO & other Ranks 32 36

(AA SEC 80-82)
7. Chapter - 7 Summary of Evidence 37 45
(AR 23)
8. Chapter - 8 Summary Trial of JCOs by CO 46 47
(AA Sec 85)
9. Chapter - 9 Summary Court Martial 48 60

10. Chapter - 10 Administrative Action 61 72

11. Chapter - 11 DV Ban 73 76

12. Chapter-12 Maintenance Allowance to Wife and 77 79
Children
13 Chapter - 13 Adjustment of Jurisdiction Criminal Court 80 84
and Court Martial
14. Chapter - 14 Armed Forces Special Powers Act 85 92
(AFSPA) and Law Relating to Counter
terrorism (CT)/ Counter Insurgency
(CI) Operations
15 Chapter - 15 The Right to Information Act, 2005 93 99
16. Chapter - 16 The Armed Forces Tribunal 100 107
17. Chapter - 17 Defence of Civil Cases 108 110
( Ref SAO 5/S/2001/JAG)
18. Chapter - 18 Law of Writs 111 114
19. Chapter -19 Guidelines: Convening General/District 115 120
Courts Martial - Duties of Staff Officers
20. Chapter - 20 Important References 121 123
21. Chapter - 21 Electronic Evidence 124 138
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LIST OF APPENDIX

S Chapter Subject Appendix Page

No No
1. Chapter - 3 Investigation of Offence Flow-Chart in ‘Appx ‘A’ 139-140

2. Chapter - 4 Court of Inquiry Suggested lay out Convening 141-141

Order is att as Appx ‘B’
3. Chapter - 4 Court of Inquiry Specimen of Summon 142-142
annexed as Appx ‘B-1’.
4. Chapter - 4 Court of Inquiry Sample C of I Proceedings 143-155
are att as Appx B-2
5. Chapter - 5 Hearing of Charge Sample Appx A to AO 156-159
03/2018/DV att as Appx ‘C’
6. Chapter - 6 Summary Trial of NCO Sample Summary 160-162
& other Ranks (AA SEC Punishments att at Appx‘D’
80-82)
7. Chapter - 6 Summary Trial of NCO Sample Summary 163-163
& other Ranks (AA SEC Punishments Appx‘E’.
80-82)
8. Chapter - 6 Summary Trial of NCO Sample Summary 164-164
& other Ranks (AA SEC Punishments Appx ‘F ’.
80-82)

9. Chapter - 6 Summary Trial of NCO Sample Summary 165-165

& other Ranks (AA SEC Punishments Appx‘G’
80-82)
10. Chapter - 6 Summary Trial of NCO Sample ‘Offence Report’ 166-166
& other Ranks (AA SEC (IAFD-901) att as appx Appx
80-82) ‘H’.
11. Chapter - 7 Summary of Evidence Sample Proceedings S of E 167-172
(AR 23) att at Appx ‘J’

12. Chapter - 8 Summary Trial of JCOs Sample ‘Form I’, att at ‘Appx 173-173
by CO ‘K’
(AA Sec 85)
13. Chapter - 8 Summary Trial of JCOs Sample ‘Form 2’, att at Appx 174-174
by CO(AA Sec 85) ‘L’

14. Chapter - 9 Summary Court Martial Sample form of SCM 175-197

Proceedings (IAFD-907)
where the Accused Pleaded
Guilty and Not Guilty to the
Charge att at Appx ‘M &N’
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S Chapter Subject Appendix Page No

No
15. Chapter - 13 Adjustment of Sample Format Draft for 198-202
Jurisiction Criminal Exercising Jurisdiction or
Court and Court otherwise as att as Appx ‘O’
Martial and Extract of Notification
Issued by Govt of Jammu
and Kashmir the 2nd March
1984 att at Appx ‘P’ )

16. Chapter - 15 The Right to Appx-‘Q’ 203-208

Information Act, 2005
17. Chapter - 15 The Right to Appx ‘R’ 209-211
Information Act, 2005
18. Chapter -16 The Armed Forces Appx‘S’ 212-213
Tribunal
19. Chapter - 16 The Armed Forces The Flow Chart Showing 214-215
Tribunal Processing of file against the
Order of AFT for Filing of
Appeal before the Hon’ble
Supreme Court att as Appx‘T’
20. - Sample letters for Appx ‘U’ 216-217
obtain attendance of
civil witness
21. - Sample letters by the Appx ‘V 218-218
CO

* Note- It is certified that the Samples attached as Appendix in this book are fictitious in
nature and are only meant for the guidance of Officers.
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CHAPTER - 1
ACTION AFTER INCIDENTS
Reporting of Certain Incidents to Higher Headquarters
It must be borne in mind that certain disciplinary incidents are required to be
reported to the next fmn HQ as under SAO 6/S/2000. The first report (preliminary) is
required to be made verbally soon after the incident, followed by a signal within 24
hrs of the incident. Thereafter, a detailed report is made in 72 hrs in the form of a
detailed letter. A format for making the detailed written report is given in SAO
6/S/2000.Other incidents not mentioned in SAO 6/S/2000 are not required to be
reported and may be investigated under the orders of the CO in the manner
explained here-in-below.
The comprehensive list of incidents which are required to be reported to the higher
HQs (Formation HQ) are contained in SAO 6/S/2000. The said list is reproduced as:-
1. When mandatory
(a) Collective insubordination.
(b) Suicide attempted or suspected.
(c) Murder or an attempt to murder.
(d) Rape including sexual assault or using criminal force to a
woman with intent to outrage her modesty.
(e) MT Accidents resulting in fatal & serious injuries, accidents involving civ
vehicles resulting in damage to civ pers/property.
(f) Other serious cases, e.g. unnatural deaths (drowning).
(g) All cases of espionage activities.
(h) Arrest of an Officer or a JCO by civil auths.
(j) Case of loss or damage to public property due to sabotage or
suspected sabotage.
(k) Loss of Regimental funds exceeding Rs 5000/- due to theft, fraud or
neglect.
(l) All Offences against Wild Life Act.
2. Sequence of Reporting
First report within 24 hrs: A verbal report of the incident must be given on
telephone immediately on its occurrence to the staff offr concerned at the fmn
HQ, followed by a telegraphic report (through a signal) within 24 hrs.

Detailed report within 72 hrs: Thereafter, a detailed report of the incident will
be furnished in the form of a letter within 72 hrs of the incident.
Weekly progress: Weekly progress report should be furnished until
conclusion / disposal of the case.
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CHAPTER-2

ARREST AND SUSPENSION

Arrest

Arrest is the restraining of the liberty of a person in order to compel obedience

to the order of a Court of justice, or to prevent the commission of a crime, or to
ensure that a person charged or suspected of a crime may be forthcoming to answer
it. Thus, arrest of an individual has got a direct connection to the supreme
constitutional guarantee of life and liberty and strict adherence to the laid down
procedure of law which has to be ensured by all concerned.

Terms Explained (As defined under the Army Act)

SEC 3 (xiii) "military custody" means the arrest or confinement of a person

according to the usages of the service and includes naval or air force custody.

SEC 3 (xx) "provost-marshal" means a person appointed as such under section

107 and includes any of his deputies or assistants or any other person legally
exercising authority under him or on his behalf.

SEC 3 (xxiii) "superior officer", when used in relation to a person subject to this
Act, includes a junior commissioned officer, warrant officer and a non-commissioned
officer, and, as regards persons placed under his orders, an officer, warrant officer,
petty officer and non-commissioned officer of the Navy or Air Force.
.
SEC 3 (xviii) "officer “means a person commissioned, gazetted or in pay as an
officer in the regular Army, and includes –

(a) An officer of the Indian Reserve Forces;

(b) An officer holding a commission in the Territorial Army granted by the

President with designation of rank corresponding to that of an officer of the
regular Army who is for the time being subject to this Act;

(c) An officer of the Army in India Reserve of Officers who is for the time
being subject to this Act;

(d) In relation to a person subject to this Act when serving under such
conditions as may be prescribed, an officer of the Navy or Air Force ;

But does not include a junior commissioned officer, warrant officer, petty
officer or non-commissioned officer

Military custody is defined in AA Sec 3 (XIII) as the arrest or confinement of

a person according to the usages of service. Arrest of an individual is not obligatory if
the offence is not serious enough. Broadly, arrest of a person is governed by the
following factors :-
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(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. S. 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
hisbehalf, 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 s. 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 travelling without authority
(AA s. 105 (2)).
Under AA Sec 101, any person subject to the Act, involved in any act of
commission or omission constituting an offence may be taken into military custody as
ordered by any superior officer. In an exceptional situation where an officer engaged
in any quarrel, affray or disorders may be ordered into military custody by an officer
junior in rank, Army Act Sec 101 provides for taking into military custody a person
subject to the Army Act who is charged with an offence. Paras 392 and 393 of the
Reg for Army (RA), 1987 specify the authorities competent to place a person under
arrest and the circumstances for the exercise of these powers. In amplification of
these provisions, it is clarified that a person charged with an offence is normally
taken into custody under the following circumstances :-
(a) The person is likely to obstruct the collection of evidence against him,
or tamper with evidence or influence the witnesses.

(b) It is feared that he may commit an act injurious to himself or others.

(c) When charged with a serious crime or any of the following offences
depending upon their severity :-
(i) Offences relating to the enemy.
(ii) Use of criminal force or insubordination which in the opinion of
the Commanding Officer/Formation Commander may lead to further
incidents.
(iii) Mutiny.
(iv) Murder and attempt to murder.
(v) Desertion.
(vi) Theft, misappropriation of funds, criminal breach of trust and
other offences involving moral turpitude.
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Open Arrest

An offr/JCO/WO under open arrest may take exercise at stated period and
within stated limits, which will usually be the precincts of the barracks or camp of his
unit; these limits may be enlarged at the discretion of the OC on the spot. He will not
appear in any place of entertainment, or at public assemblies. He will not appear
outside his quarters or tent dressed otherwise than in uniform. ( Ref Para 394(d) of
RA 1987).

Close Arrest

An offr/JCO/WO under close arrest will be placed under the charge of an

escort consisting of another officer, JCO or WO of the same rank, if possible and will
not leave his quarters or tent except to take such exercise, under supervision, as the
medical officer considers necessary. An offr/ JCO/ WO may, however, if
circumstances so require, be placed for custody under the charge of a guard, piquet,
patrol, sentry or provost-marshal.( Ref Para 394{c} of RA 1987).
Release
The CO of the accused in case of NCO/OR and in case of offr, JCO, WO, CO
with the sanction of the highest auth to whom the case may have been referred may
order release from arrest without prejudice to re-arrest in the same case or
otherwise. A person who is released from arrest, except specifically without prejudice
to re-arrest, will not again be arrested on the same charge unless some new and
special circumstances have arisen.

Every officer whose character or conduct as an officer and gentleman has

been impugned or who has been charged with a civil offence(s) or is
arrested/released on bail by a civil court must intimate full facts of the case, as are
known to him, within a reasonable time to his CO, or other competent military
authority, irrespective of any report which may be made by the civil authorities. The
facts with regard to his subsequent discharge, acquittal or conviction by the civil court
will also be reported by him.

SUSPENSION
(Ref Army order 17/2001 DV)
Para 349 of the Regulations for the Army, 1987, outlines the circumstances in
which an Offr may be suspended from duty. While ordering the suspension of an offr
theauth concerned should bear in mind that unlike in the case of a civ servant, the
suspension of an offr charged with an offence is not a normal course of action since
the arrest of service per charged with an offence is within the reach of a superior offr
who considers it necessary for a fair investigation of the charge to keep such pers
away from duty. Thus, ordinarily there is no need to resort to suspension from duty
when the allegations admit of a mil charge. However, an offr may be suspended
from duty in the following circumstances :-

(a) When arrested by civil authority on a serious charge.

(b) When the character and the conduct of an offr and gentleman has
been impugned except when the allegations in question involve only a mil
offence.
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The suspension or arrest of an officer, his removal from suspension or release

from arrest and his again being placed under suspension or arrest will be
immediately reported by signal to Adjutant General's Branch (DV 1), Army
Headquarters, for taking action with regard to the issuing of orders for withholding his
pay and allowances or cancelling such orders. In cases where an officer is charged
with an offence involving fraud, dishonesty or culpable negligence, resulting in
financial loss to the State, and is suspended from duty or placed under arrest (open
or close), recommendations for withholding his pay and allowances, wholly or
partially, will be forwarded through normal staff channels without delay by the CO of
the officer or the authority who ordered his suspension from duty or arrest.

FREQUENTLY ASKED QUESTIONS

Q.1 Can a person subject to the Army Act be arrested by civil police without
sanction/permission of the mil auth?

Ans Yes. A person accused of committing a civil (cognizable) offence may be

arrested by civil police without any permission from the mil auth, unless the
offence was committed or purported to be committed in discharge of his
official duty (eg. in CI ops Area) in which case sanction of the Central Govt
would be necessary. However, if the arrest is to be made from the unit or
the mil cantonment, then the police auth must seek the prior approval of
the StnCdr before making the arrest. ( pl refer to policy letter issued by AG
branch vide its letter number 41915/AG/DV-1 dated 17 Mar 1992 )

Q.2 If a person subject to the Army Act commits an offence punishable under
the Act, is his arrest obligatory?

Ans No, it is not obligatory. If the offence is not serious and the accused is not
likely to run away, the case may be investigated and disposed off without
placing the offender under arrest. MML, Vol I Ch. III Para I.

Q.3 Who can place an Army person under arrest under the Army Act/ Army
Rules?

Ans Ordinarily, the CO or a superior mil cdr is empowered to place a person

under arrest.

Q.4 For how long can an accused person be kept under arrest in mil custody
awaiting his trial by court martial / disposal of his case?

Ans: (a) When not on active service, an accused may be kept under arrest in
mil custody up to a maximum period of two months without the sanction of
superior military authority. AR 27 (3)
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(b) Arrest in mil custody when, not on active service, beyond a period of
two months but less than three months will require the sanction of COAS
or Army Cdr.AR 27 (3)

(c) Arrest in military custody beyond a period of three months shall

require the sanction of the Central Govt. AR 27 (3) (ii)

(d) However, no sanction of the superior military authority/ Central Govt

would be required to keep an accused under arrest in military custody after
the convening order for his court martial has been issued. AR 27 (3)

(e) On active service, a person may be kept under arrest in military

custody as long as the circumstances demand, without the sanction of the
superior military authority. AR 27 (3)

(f) Where unit moving from active service to peace location, a prior
sanction accordingly has to be taken.

(g) There is no provision of ex-post facto sanction.

Q.5 What is a difference between “open” and “close” arrest?

Ans The only practical difference is that a person in “close” arrest requires an
escort, or that the offender is kept in confinement. While under “open”
arrest neither an escort is detailed nor is the offender kept in confinement.
RA Para 394 & 395

Q.6 When should an offender be placed under open arrest?

Ans An offender should be placed under open arrest only when his offence is of
a serious nature but the circumstances do not warrant his confinement. In
all other cases when it is considered desirable that the offender should be
taken into military custody, he should be placed under close arrest.
RA Para 394

Q. 7 What is the difference between “imprisonment in military custody” and

“detention” ?

Ans. Imprisonment in military custody will be carried out in the Quarter guard or
cell of a unit in the station. All prisoners will be visited daily by the orderly
officer. They will also be visited by the officer of the week. An NCO with
such assistance as may be necessary will be detailed to superintend hard
labour. Men sentenced to detention shall subject to the same restrictions
and will be detailed in the same manner as persons undergoing RI except:-

(a) there is no automatic forfeiture of pay and allowances;

(b) they can in no case be committed to civil jail; and

(c) they will do normal military training in addition to any collective

training that may be imposed. RA Paras 507 & 510.
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Q8 What are the provisions for close arrest in the case of an officer, JCO or
WO?

Ans The officer, JCO or WO will be placed in charge of an escort consisting of

another officer, JCO or WO of the same rank, if possible. He must not
leave his quarters or tent except to take such exercise, under supervision,
as the medical officer considers necessary. RA Para 394 (c).An officer,
JCO or WOunder arrest will not wear sash, sword, belt or spurs. RA Para
394 (b).

Q9 What are the provisions for open arrest in the case of an officer, JCO or
WO?

Ans (a) He must not appear outside his tent or quarters dressed otherwise
than in uniform.

(b) He may take exercise only at stated intervals and within defined limits.

(c) He must not appear at any place of amusement or entertainment or

public assemblies. RA Para 394 (d).

(d) He will not wear sash, sword, belt or spurs. RA Para 394 (b).

Q.10 Can the pay and allowances of a person subject to the Army Act be
withheld while he is in custody on a charge for an offence?

Ans Yes, the whole or any part of the pay and allowances of such person may
be withheld pending the result of his trial on the charge against him.
AAs93.

Q.11 Who is competent to withhold the pay and allowances of an officer during
arrest?

Ans The Chief of the Army Staff and the Army Cdr.AAs 93 and AR 194.

Q.12 Who is competent to withhold the pay and allowances of a person other
than an officer?

Ans The officer empowered to convene a court-martial for his trial. AAs 93
and AR 194.

Q.13 Who may suspend an officer from duty?

Ans An officer may be suspended from duty by:-

(a) his officer commanding or

(b) any other superior authority. RA Para 349.

Q.14 Can a JCO or an OR be suspended?

Ans No, there is no provision for the suspension of a JCO or an OR.

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GUIDELINES :ARREST OF MILITARY PERSONNEL BY CIVIL AUTHORITIES

1. Indian constitution has provided various kinds of basic fundamental and legal
rights to citizen of country and in some cases to foreign nationals. It guarantees an
individual a very basic right of life and personal liberty which can in no case be
curtailed or restricted except according to procedure established by law. In other
words, it would be apt to contend that rule book of law has given detailed instructions
on the ways and means with which one’s fundamental right of personal liberty can be
restricted or suspended temporarily. Aim of this advisory is to protect our trained
soldiers from the police custody. It goes without saying that discipline is the
backbone of Indian Army and a soldier cannot be made to lurch in the police custody
for an act which is an offence under the Army Act.

2. In this regard, it is pertinent to mention that provisions of CrPC are subject to

the special laws. Sec 1(a) of the Code of Criminal Procedure, Svt, 1989 provides
that it extends to the whole of Jammu Kashmir State but in the absence of any
specific provisions to the contrary, nothing herein contained shall affect any special
or local law for the time being in force. Further, Section 1 of the CrPC makes the
provision of the code subject to the provisions of any special law. Since, the Army
Act is a special law, it is the Cr PC which is subject to the provisions of the Army Act.
The words “subject to the provisions of the special law” in Section 5 would mean that
if there is an irreconcilable conflict between the provisions of the CrPC and the
provisions of the Special Law, the later shall prevail to the extent of the inconsistency.
The provision of Section 104 of Army Act categorically sates that-

“Whenever any person subject to this Act, who is accused of any offence
under this Act, is within the jurisdiction of any magistrate or police officer, such
magistrate or police officer shall aid in the apprehension and delivery to
military custody of such person upon receipt of a written application to that
effect signed by his commanding officer”

Also Section 549(2) CrPC, Svt, 1989 provides-

3. Every Magistrate shall, on receiving a written application for that purpose by

the commanding officer of any body of troops stationed or employed at any such
place, use his utmost endeavors to apprehend and secure any person accused of
such offence.

4. In South India Corporation (P) Ltd. V. Secretary, Board of Revenue,

Trivandrum, AIR 1964 SC 207 it was observed that a provision of a Special law, by
its express terms, may come into conflict with a provision of the CrPC wholly or in
part; the said provision in a special law may also be necessary implication, come into
direct conflict with the provisions of the CrPC. Whatever it may be, once
inconsistency is spelt out, the provisions of the Special law shall prevail. Further in
Ajmer Singh v Union of India AIR 1987 SC 1646. The Supreme Court has held that
the relevant chapters of the Army Act embody a self-contained comprehensive code
specifying the various offences under the Act and prescribing the procedure for
detention and custody of offenders investigation and trial of offenders by Court
Martial, the punishment to be awarded for various offences, confirmation and revision
of sentences imposed by Court Martial. The Army Act is therefore a special law
conferring special jurisdiction and powers on Court Martial and prescribes a special
 13

form of procedure for the trial of offences under the Army Act. The effect of Section
1 of CrPC is to render the provisions of CrPC inapplicable in respect of all matters
covered by such special law.

5. The provisions of Section 104 categorically states that whenever there is

written request from the Commanding Officer of a person subject to Army Act, the
magistrate upon whom such request has been made shall assist and deliver the
custody of such person to the Commanding Officer. Such provisions have an
overriding effect over the provisions of Section 549 CrPC, Svt, 1989 i.e. the power of
the Magistrate to keep the offender subject to Army Act under Civil Custody when the
Commanding Officer has not only given the written requisition to handover the
individual to the Army Authorities but also has given a written assurance that the
individual shall be produced for the inquiry as and when required. Therefore, there is
no question of exercising the authority by the Magistrate contrary to the written
request of the Commanding Officer by refusing to grant the custody of the Individual
subject to Army Act. It is needless to emphasis that when it comes to the custody of
a person subject to Army Act, it is for the Commanding Officer to decide as to with
whom shall the custody of such person remain.

6. It is worth mentioning that provision of Section 104 deals with a stage prior to
the situation contemplated under sec 125 of Army Act. While section 104 of the
Army Act deals with military custody of the Army personnel when the police has to
conduct a preliminary investigation into the case, Section 125 of Army Act, read with
Sec 549 of CrPC svt, 1989, on the other hand, is involved when the Police submits
the challan before the Magistrate in respect of the Army personnel who is charged
with an offence for which he is liable under the Army Act to be tried by Court Martial,
and such Magistrate receives a written application from the competent authority to
exercise his jurisdiction.

7. It, therefore, clearly follows that there are two stages in which the Army
authorities will exercise its jurisdiction in respect of offences under the Army Act over
which there exist dual jurisdiction, that is, when the offence is triable by both the
criminal court as well as court martial. The two stages can be summarized as
follows :-

Stage. 1 When the Army Personnel has been Arrested by Civil Police and
in thePolice Station.

Action- (i) Take over the custody of the offender from the local police as they are
legally bound under Army Act Section 104 and under CrPC, Svt’ 1989
Section 549.(Appx-‘V’)

(ii) Render a certificate to the SHO by the Commanding Officer that full
assistance will be provided to the local Police in case they want to
investigate the case at their end.
Soon after getting the custody of the offender, order a Court ofInquiry
(iii) to investigate into the circumstance under which the alleged
incidenttook place and by invoking Army Rule 180 in respect of
the accuse, his continued presence with the Army authorities will be
ensured until the said Court of Inquiry gives its Findings and Opinion.
 14

Where the Police Officer does not conform to the Provisions of the Army Act
Sec 104 and CrPC Section 549.

Action- (i) Move a application under AA Sec 104 before the Magistratehaving the
jurisdiction.
Inform the SSP and higher officers about the misconduct of the said
(ii) Police Officer.
Where the Magistrate is not handing over the Custody of the accused Army
Personnel.

Action-(i) Matter to be imdt brought to the notice of Fmn HQ’s alongwith all the
connected documents and orders of the Magistrate for not handing
over custody.

(ii) A writ of mandamus be preferred before the concerned High Court

through ASG with coordination of DJAG litigation and DJAG Command
(under the Regulation for the Army Para 538) before the concerned
HighCourtthrough ASG.

8. The above said actions are applicable only in taking over the custody of the
soldier from the civil custody before the exercise for Jurisdiction by competent
authority under Army Act Section 125 and 126.

Stage-2 Invoking AA Section 125 read with CrPC Section 549, when the
police submits the challan before the Magistrate sanction of the competent
authority should be processed. The directions for taking over/ not taking over
(as the case may be) to try the accused by Court Martial should be informed
tothe Magistrate having jurisdiction.

9. After taking over the case from the Magistrate the Commanding Officer of the
accused shall proceed with the proceedings under Army rule 22 onwards (Hearing of
Charge).
10. Further Section 197 of the CrPC J&K Svt 1987 provides protection to the
Armed Forces while they are discharging their duties as per Army Act the same is
reproduced below:-
CrPC Section 197 Prosecution of Judges and Public Servants

(a) When any person who is Judge within the meaning of section 19 of the
Ranbir Penal Code or when any Magistrate, or when any public servant who is
not removable from his office save by or with the sanction of the State
Government or the Government of India, is accused of any offence alleged to
have been committed by him while acting or purporting to act in the discharge
of his official duties, no court shall take cognizance of such offence except
with the previous sanction:-

(i) In the case of persons employed in connection with the affairs of

the Union, of the government of India; and
 15

(ii) In the case of persons employed in connection with the affairs of

the State, of the government

(b) The government of India or the State Government , as the case may
be, may determine the person by whom, the manner in which , the offence or
offences for which, the prosecution of such Judge, Magistrate or public
servant is to be conducted, and may specify the Court before which the trial is
to be held.

11. Therefore, in case of any confusion arising to the police authorities. They may
be clarified by rendering a certificate by the Commanding Officer or by the
Competent Authority (on case to case basis) that the performance of the said act
was in the discharge of the official duty.
 16

CHAPTER - 3

INVESTIGATION OF OFFENCE

1. An offence punishable under the Army Act can be investigated in one or more
of the following ways:- (As shown in the ‘Flow–Chart’ in ‘Appx ‘A’ of this ‘Hand
Book)

(a) Informal (Verbal) Investigation. The CO/fmncdr may direct one of his
subordinate offrs to investigate the matter and report the outcome verbally to
him.

(b) Semi-Formal Investigation. This is one man (offr) investigation

ordered by the CO/Fmn Cdr under AO 4/2000. The offr so detailed will record
statements of the relevant witnesses including the suspected accused and
submit a written report to the CO/Fmn Cdr who ordered the investigation.
Semi-formal (one man) investigation can be held either in lieu of or in addition
to the Informal (verbal) investigation mentioned above.

(c) Formal Investigation (C of I) : Formal investigation is done through a

Court of Inquiry (C of I) held under ARs 177 to 186. It is legally not
mandatory that all cases are investigated by a C of I. In other cases, if the
facts are simple and offence and identity of the offender becomes known
though a informal or semi-formal investigation, the discp action may be
directed against the accused without going for a C of I. However, investigation
by a C of I may be held in addition to the informal (verbal) or semi-formal (one
man) investigation.

2. On completion of the investigation in the manner mentioned in para 1 above,

the CO /Fmn Cdr may direct discp action against the accused. A direction to take
discp action means to prepare a tentative charge-sheet and ‘hearing thecharge’
as per the procedure prescribed under AR 22 read with AO 03/2018/DV.

3. Attachment of Personnel for Progressing Disciplinary/Vigilance Cases

under the Army Act.

Where attachment is visualized in progressing disciplinary/vigilance cases

under the Army Act, including the cases which have been taken over from the Civil
(Criminal) Courts for trial under the said Act,. During attachment the individuals will
continue to be held against the strength and appointment of the parent unit and no
replacement will be made until completion of the disciplinary proceedings. This
power, however, shall not be exercised merely to change the command with a view
to secure award of enhanced punishment/penalty e.g. for trial by Summary Court
Martial.
(RefersAO 7/2000)
 17

4. Disposal of Offences Committed by Personnel Away from Their Parent

Units.

(a) Persons accused of having committed offences while away from their
parent units will not be returned to their units for disposal except the case of
deserters as mentioned below. In former cases, the formation commander
within whose jurisdiction the offence was committed will arrange for the
individual concerned to be attached to a local unit for disposal of the case in
accordance with the procedure outlined in AO 7/2000.

(b) Further in the case of an offence committed by a deserter such a

person will be dispatched to the unit from which he deserted. Other offence(s)
if committed by such a person will be made subject matter of a separate
charge. This para shall not apply to the cases of desertion falling under Para
381 of the Regulations for the Army, 1987.

(c) In the cases of desertion covered under Para 381 of the Regulations
for the Army, 1987, when the deserter surrenders to or is taken over by the
concerned Regimental Centre, he may be formally attached with the Centre
HQs or to any of its units under the orders of the Centre Commandant and
intimation to this effect shall be sent to the parent unit and/ or the unit from
where the individual had deserted and relevant evidence obtained(Refers
5/2003/ DV).
 18

CHAPTER-4

COURT OF INQUIRY

1. Introduction. It is an assembly of officers or of Officers and JCO/WO/NCO

directed to collect evidence and, if so required, to report with regard to any matter
which may be referred to them (AR 177(1). It is a formal fact finding body. It is NOT
MUST in all cases.

2. Type of C of I. `Staff’ or `Unit’ Cof I is not defined in AA/AR/RA.

(a) C of I assembled on orders of CO of a unit is called unit C of I.

(b) C of I assembled on orders of staff on behalf of Fmn Cdr is called staff

C of I.
(AHQ letter No 46440/AG/DV-1 (P) dated 03 May 2001).

3. Who can Convene.(Suggested lay out Convening Order isatt as Appx

‘B’)

(a) By offr in command of any body of troops, whether belonging to one or

more corps {AR 177(3)}.

(b) By Stn/FmnCdr to inquire into matters concerning discipline specially

when two different units are involved.

4. When should be assembled – General Guidelines.

(a) When it is mandatory by existing orders.

(b) When a prolonged examination of witnesses or docus is reqd.

(c) When identity of the person(s) involved is to be established.

(d) When lengthy investigations are reqd, which cannot be conveniently

done by the CO.

5. When C of I must be held.

(a) Loss of Arms and Amn

AR 185
(b) AWL beyond 30 days
AA Sec 106 & AR 183
(c) Injury to a person subject to AA.
DSR Para 520 Rev Edn 1987.
(d) Injury to civilian and to civilian
property and claims for compensation DSR Para 521 Rev Edn 1987.
thereof.

(e) Prisoners of War DSR Para 524 Rev Edn 1987 &
AR 178 & 179
 19

(f) Loss of classified documents DSR Para 525 Rev Edn 1987 &
Pamphlet for classification and
handling of protected
documents in India 1951.

(g) Destruction of animals DSR Para 957

(h) MT Accidents DSR Para 522 also ref SAO

16/S/2000

(j) Suicide and unnatural deaths SAO 16/S/2000 & DSR Para
522.

(k) Loss of Public Money and stores DSR Para 519

due to fraud.

(l) Assaults and Affrays SAO 10/S/73 & DSR Para 522

(m) Outbreak of fire DSR Para 1195

(n) Explosive and accidents DSR Para 603

(o) Murder DSR Para 522

(p) Collective insubordination DSR Para 522

(q) Accidents on ranges AO 258/74 & DSR Para 603.

POINTS TO BE KEPT IN MIND

(a) Presiding Officer not to be junior DSR Para 518 and also Army
in rank to the witness under compliance HQ letter No 46440/ AG/DV-
of AR-180. 1(P) dt16 Dec 2000.

(b) OC Hosp may order a C of I in r/o AR 177 (3)

of a non-AMC pers also, if patients.

(c) Presence of the accused whose AR 180 & AO 129/72 Army HQ

character or military reputation is letter No 46440/ AG/DV-1(P)
involved and his right to cross-examine dt16 Dec 2000.
the witnesses

(d) Notification to the civil police AO 53/75

AO 167/72
(e) Questionnaire to the witnesses
unable to attend.

(f) Adm arrangements-responsibility DSR Para 518

of the unit.
 20

(g) Special procedure in cases of AR 183, TR 131 & AO 167/72

illegal absence.

(h) TA/DA to civ witnesses TR 31 & SAO 1/S/2002/DV

(j) Time frame for 20 finalization of AO 51/81 & Army HQ No

Court of Inquiry. A/0911/AG/DV-1 dt11 Aug 80.

6. Composition.

(a) Minimum number should not be less than two generally 3 or other odd
numbers (Note 3 to AR 177).

(b) Presiding Offr may be commissioned Offr or a JCO {AR 177(2).

(c) Presiding Offr is to be appointed by name otherwise sr member will sit

as Presiding Offr (RA Para 518).

(d) If matter to be investigated involves knowledge of science or art, like

medical, finance, engineering, wpntech, store accounting etc an official
possessing such knowledge is detailed. If the official is not subject to AA, he
will attend the proceedings as “member in attendance” (RA Paras 518 & 519)

(e) Members whose experience and training best fit them to deal with the
matter at issue.

(f) Personhaving personal interest, direct or indirect in the subject matter

of investigation, should not be detailed as a member.

(g) When character or mil reputation of an Offr is likely to be a material

issue the Presiding Offr, wherever possible, should be senior in rk and other
members at least equivalent in rk to that offr (RA Para 518 & Notes to AR
180).

(h) In case of loss of secret docus, Presiding Offr will be Sroffr (not
belonging to the Unit or HQ where the loss has occurred) and 2 or more other
officers as members. The court will sit “in camera” (RA Para 525).

7. Procedure.

(a) Shall be recorded on form IAFD- 931 in hand or may be typed.

(b) Relevant refs - AA Secs 106 & 135.AR 177 to 183 & 185 & Notes
thereto.Form 919C for issue of summons.RA Paras 516 to 529. Army HQ
letter No 46440/AG/DV-1 (P) dated 03 May 2001.

(c) Guided by terms of reference.

(d) Procedure for production of documents by rep of Defence Accounts

Dept (DAD) - Para 14, Army HQ letter No 46440/AG/DV-1 (P) dt 03 May 2001.

(e) It should be arranged in following order :-

 21

(i) Copy of the convening order.

(ii) List of witnesses.

(iii) List of exhibits.

(iv) IAFD – 931.

(v) Statements of witnesses.

(vi) Findings.

(vii) Opinion.

(viii) Exhibits.

(f) Proceedings of C of I can be recorded in Hindi in roman script – (AO

87/92).

8. When opinion mandatory.

(a) On returned prisoners of war (AR 179).

(b) On absent prisoners of war (AR 179).

(c) On loss of arms (AR 185).

(d) When so directed by the convening authority.

(e) Suicide – attempted or suspected (RA Para 522(b)).

9. Evidence when to be taken on Oath or Affirmation.

(a) Court.

(i) Members of the C of I are not sworn or affirmed. However,

when the C of I is assembled on the recovered POW, members shall
make a solemn declaration prescribed in AR 178.

(b) Witnesses - Only in following cases (AR 181) :-

(i) On a prisoner of war.

(ii) To inquire into illegal absence under AA Sec 106.

(iii) Any other case, when so directed by offrassembling the court.

10. Calling of witnesses (AA Sec 135).

 22

(a) Service witnesses.

(i) Will be procured through Fmn HQ concerned

(ii) Summons served through CO (AO 236/73, AHQ Letter No
46440/AG/DV-1(P) dated 03 May 2001).
(b) Civilian witnesses.

(i) If paid from Def Service Estimates or those in the service of any
GovtDept, attendance shall be procured through the HOD.

(ii) If not paid through Def Services Estimates, may be summoned

through Magistrate of the area, where witness resides (specimen of
summon annexed as Appx ‘B-1’.
(c) Detailed procedure for move of witnesses - Para 30 Army HQ letter No
46440/AG/DV-1 (P) dated 03 May 2001.

11. Character and mil reputation (AR 180). Except in the case of a POW who is
still absent, any officer or soldier whose character or mil reputation is affected
by the inquiry shall be given full opportunity of :-

(a) Being present throughout the inquiry.

(b) Of making any statement.
(c) Of giving any evidence he may wish to.
(d) Of cross examining any witness.
(e) Producing any witness in defence.
The Presiding Offr of the court shall take such steps as may be necessary to
ensure that any such person so affected and not previously notified receives
notice of and fully understands his rights available to him under AR 180.
(Refer ADG(DV) AG Br IHQ of MoD(Army) Letter No C/00982/241/AG/DV-5A
dt 02 Jun 2016)
Effect of Non-Compliance of AR 180. It would vitiate the C of I proceedings
and particularly the subsequent adm action taken on the basis of such a C of
I, although it would invariably make no dent on the discp action (AHQ letter No
46440/AG/DV-1(P) dt 15 Dec 2000 and even dt 02 July 2007).
12. Evidentiary value (AR 182).

(a) The proceedings of C of I, or any confession, statement, or answer to a

question made or given at a C of I, shall not be admissible in evidence against
a person subject to the Act, nor shall any evidence respecting the proceedings
of the court be given against any such person except upon the trial of such
person for willfully giving false evidence before the court :

Provided that nothing in the rule shall prevent the proceedings from being
used by prosecution or defenceforpurpose of cross examining any witness.

(b) Use of extract of evidence from C of I even with consent of accused at

summary trial will vitiate the trial.
 23

(c) Copy of declaration of C of I (IAFD-918) made from CM books in

pursuance of AA sec 106 is admissible at subsequent trial for illegal absence
to establish time, date, deficiencies in kit at time of such absence. Original C
of I proceedings in such cases are reqd to be destroyed and even if available
are inadmissible in evidence.

13. Persons entitled to copy of C of I (AR 184).

(a) Any person subject to AA who is tried by a CM shall be entitled to

copies of such statements and docus of the C of I as are relevant to his
prosecution or defence at his trial.

(b) Any person subject to AA whose character or mil reputation is affected

by evidence before C of I shall be entitled to copies of such statements
anddocus as have bearing on his character and mil reputation unless COAS
for reasons recorded by him in writing orders otherwise.

Points to Ponder

14. Departmental inquiries will not be convened in cases where an element of

theft, fraud, or neglect exists. Such cases will be reported to the staff for holding a
staff inquiry (See Sec 2.2 Rule 72 (A) Financial Regulations Part-I).

15. A C of I is not bound by strict rules of evidence. Rules of evidence are

relaxed. Hearsay evidence may be admitted and docus may be included without
formal proof, provided the Court is satisfied as to its origin. It is not advisable to
dispense with the attendance of witnesses whose evidence is likely to be disputed.

16. If the court doubts the truthfulness of a witness, it should test his evidence by
cross-examination. The Court should further tell him of any information which the
Court already possesses and which may conflict with what the witness says.

17. Civil police should always be informed and invited to send a representative to
produce evidence when a C of I is held to investigate cases of injuries to civilians or
damage to civil property.

18. Witness is not allowed to be represented by an advocate, though his legal

representative may be allowed to sit silently in the Court while evidence is being
recorded.

19. Witnesses required by the Court of Inquiry should not be allowed to leave the
station before the proceedings are finally closed. In case of officers under posting,
they should be permitted to join new unit/fmn and called back on temporary duty for
recording the evidence.

20. The Court should strictly adhere to the terms of reference and avoid recording
unnecessary, irrelevant or superfluous evidence.

21. The Court must record detailed findings and express opinions if required by
the convening authority to do so.
 24

22. The proceedings should be submitted to the convening authority or to such

authority as has been stated in the convening order.

23. Before submitting the proceedings of the Court of Inquiry the Presiding Officer
will ensure that an index as shown below has been attached separately for
statements of witnesses and Exhibits.

LIST OF WITNESSES

Ser No No, Rank, Name and Manuscript Typed copy Remarks

Unit/Address copy pages pages Nos
Nos
From To From
To

----------------------------------------------------------------------------------------------------------------
LIST OF EXHIBITS

Ser No Name of Produced Produced No of Remarks

Exhibit on Page No by Witness Exhibits
No

----------------------------------------------------------------------------------------------------------------

24. The manuscript copy of the proceedings and each typed copy shall be placed
in separate file cover. The following information shall be nearly written on each cover
:-
(a) Copy No.

(b) Proceedings of the Court of Inquiry in respect of No, Rank, Name

________________ and unit ________________ to investigate the
circumstance etc. held on

25. The following witnesses should be examined and the evidence should be
recorded on MT Accident cases.

Witnesses to be Examined

(a) Eye witnesses, including civilians, to the incident.

(b) Co-driver/person (s) sitting on co-driver’s seat.

(c) Persons who detailed the vehicle.

(d) Persons sitting on the body of the vehicle.

(e) Persons who examined the vehicle for road-worthiness before

commencement of the journey.

(f) Persons who inspected the vehicle after the incident.

(g) Medical officers who attended to the victim, declared the person (s)
dead and carried out post-mortem examination.
 25

(h) Persons who identified the dead-body to the various medical officers.

(j) Persons who took over the body after post-mortem examination and
performed last rites.

(k) Persons who can produce evidence regarding cost of damage caused
to the vehicle as a result of the incident.

26. Other details to be recorded regarding MT accident cases :-

(a) Mission of the vehicle (whether on bonafide duty).

(b) Whether it was road-worthy before commencement of the journey.

(c) Whether the driver was physically fit to undertake the journey and drive
the vehicle or had he complained of any illness before proceeding on duty.
Experience of driver of driving vehicle in such terrain.

(d) Road/route on which the vehicle was driven immediately prior to the
incident, nature of traffic on the road, road surface, weather conditions, width
of the road and width of the road bends, topography of the place of incident
and so on.

(e) Circumstances leading to the incident, if any as sudden failure of

brakes, appearance of cattle or the victim in front of the vehicle.

(f) How exactly did the incident occur ? This should be brought out in
details in a clear and cogent manner without vagueness. The record should
give a clear picture so that it may be possible to deduce whether the driver
could not have avoided the collision incident or not ?

(g) The exact place where the collision/incident took place.

(h) Events after the incident such as evacuation of the victim/other injured
persons to hospital, reporting the incident to various people, post-mortem,
cremation/burial of the deceased etc.

27. Medical Evidence

(a) The medical officer who first attended to the victim after the incident,
should state :-

(i) General condition of the victim.

(ii) Injuries observed by him on the person of the victim.

(iii) Treatment given.

(iv) If brought dead or died while he was being examined.

(v) Whether he declared the victim dead.

(vi) Probable cause of death of the victim, if possible.

 26

(b) If the victim was treated by some other medical officer and died later,
the said medical officer should state :-

(i) Nature of injuries.

(ii) Probable cause of injuries.

(iii) How long the victim was treated.

(iv) Date of discharge, or

(v) Date of death and

(vi) Cause of death

(vii) Time of death.

(c) The doctor who conducted the post-mortem examination of the victim
should state :-

(i) General condition

(ii) External injuries

(iii) Internal injuries

(iv) Probable cause of death

(v) Cause of death

(vi) Who identified the dead body to the medical officer.

(d) Cost of damage as assessed by the audit authorities if available.

28. Action by convening authority and staff. On receipt of the proceedings of

the C of I by the convening authority. The concerned `A’ staff offr at the HQ of the
convening authority should go through the proceedings and check the following
points :-
(a) Whether the evidence required to be collected as per the terms of
reference has been recorded.
(b) Whether provisions of AR 180 have been complied with wherever
necessary.
(c) Whether all the exhibits, appendices and annexures have been
attached.
(d) Whether the findings have been arrived at on the basis of the evidence
on record and not on surmises, conjectures or on any other extraneous matter
happened to have been come to the knowledge of the members outside the
precinct of the C of I.
 27

(e) Whether the opinion of the C of I has been expressed on the basis of
the findings and is logical.
(f) Whether the proceedings have been arranged and submitted as per
Para 7 (e) above.

(g) Should the concerned `A’ staff offr find any lacuna in respect of any of
the above points, he should bring the same to the notice of the convening
authority, who should satisfy himself with the observations of the `A’ staff offr
and order that the proceedings of the C of I be sent back to the same
members to rectify the defects/shortcomings observed in the proceedings.
The members of the C of I should not be allowed to disperse until the
proceedings have been thoroughly checked and the convening authority has
been satisfied as to the perfect completion of the proceedings.

Conclusion

29. It should be appreciate that if the Cs of I are properly conducted and the
findings are logically drawn there will be no difficulty in apportioning responsibility.
Likewise if the copies of the proceedings of the Courts of Inquiry are neat, legible,
free of typing/grammatical errors and otherwise complete in all respects, the cases
will be finalised expeditiously.

30. Courts of Inquiry are convened purely for the benefit of the “Convening
Officer” to decide a course of action and must therefore result in his “decision” on it in
the first instance. This is particularly true of the disciplinary aspect of the case.
Where the facts and the circumstance of an incident sufficiently indicate that a
person is clearly involved in the commission of an offence a Summary of Evidence
may be recorded without first having recourse to investigation by a Court of Inquiry.
This would however depend on the circumstances of the case

(Sample C of I proceedings are att as Appx B-2)

 28

CHAPTER - 5

HEARING OF CHARGE
1. Disciplinary proceedings under the provisions of the Army Act and Army Rules
commence with the hearing of charge, and, at this stage the Commanding Officer
of the accused person has to satisfy himself as regards existence of prima facie case
against the accused. If the Commanding Officer is satisfied that the charge(s) ought
not to be proceeded with, he may dismiss the charge. It needs no emphasis that
compliance of the provisions relating to hearing of the charge as contained in AR 22,
in letter and spirit is a mandatory legal requirement and any violation thereof, goes to
the root of the jurisdiction of the case, rendering the hearing of charge as well as
other subsequent disciplinary proceedings void ab initio. It is, therefore, imperative
on part of the CO, that hearing of the charge is scrupulously carried out.

2. ‘Hearing of Charge’ means reading out the tentative charge to the accused
and then calling & hearing the witnesses in accordance with AR-22 (1) read with AO
03/2018/DV. Whenever a person subject to the Army Act is alleged to have
committed an offence, it is natural that before any action is taken against him, the
competent authority satisfies itself that the allegations merits proceeding with the
case. To ascertain the veracity or otherwise of the allegations, an investigation of the
charge is an inescapable necessity. With a view to afford an opportunity to a
delinquent the charge(s) is required to be heard by the CO of the accused in terms of
AR 22. The manner in which hearing of the charge is to be conducted is lucidly
explained in AO 03/2018/DV.

3. From the numerous summary courts martial and trial proceedings reviewed at
this office and the documents submitted for pre-trial advice, it is observed that
despite repeated and clear instructions, hearing of the charge is not being carried out
properly by the CO, resulting thereby into avoidable wastage of time and delay in
finalisation of the disciplinary cases. In many cases hearing of the charge and S of E
were conducted in utter disregard to the provisions of AR 22/23 which had to be
declared null and void and fresh proceedings were advised to be initiated, thus
causing undue delay in finalization of the case.(See Sample Appx ‘A’ to
AO 03/2018/DV att as Appx‘C’)

4. For better comprehension of the provisions relating to hearing of charge,

some defects which are commonly observed by us in the proceedings of hearing of
the charge recorded on Appx `A’ to AO 03/2018/DV are listed below :-

(a) In the personal particulars of the accused, when the accused is

attached to a unit other than his parent unit for progressing of discp case
against him, the unit to which he is attached and authority of such attachment
is generally not mentioned.

(b) The charge(s) which are read out and explained to the accused are
required to be attached as Annex-I in the form of a tentative charge-sheet, is
either not attached at all or is contained on IAFD-901 which is a form to be
used for summary trial of OR and NCO under AA Sec 80.
 29

(c) Tentative charge-sheet is dated subsequent to the hearing of the

charge, thus it does not become clear as to what charge was heard by the
CO.

(d) Before dispensing with the calling and hearing of the witnesses in terms
of AR 22(1), it is not ascertained by the CO, whether or not provisions of
AR 180 were complied with in respect of the accused at the C of I. Columns
4 to 6 of the ibid Appx are thus scored out in many cases, whereas, at the C
of I provisions of AR 180 were not complied with in respect of the accused
thus resultant effect is that no hearing of the charge was held.

(e) Signatures of the accused are not obtained below Para 2 of said Appx.
In many cases, although the signatures are there, but date is not found
recorded.

(f) Time and date of commencement of hearing of charge is not

mentioned.

(g) Particulars of prosecution witnesses examined by the CO are not

recorded instead the word documentary or C of I proceedings is found
recorded.

(h) Witnesses heard are not material witnesses i.e.,, they have no direct
knowledge of the facts of the case. Their evidence is not subsequently
recorded at the S of E.

(j) Date on which the witness(es) were heard, his name, rank and unit and
whether accused cross-examined him or declined are not clearly specified in
Para 4.

(k) The fact that accused was informed by the CO that he was at liberty to
make any statement and call any witness in his defence as mentioned at Para
5 of ibid Appx is also scored out while scoring off the portion that statement
made by the accused is attached as Annex-II.

(l) The date of order in Para 7 is not mentioned.

(m) The particulars of the independent witnesses in whose presence

hearing of the charge was carried out is not mentioned in Para 8.

(n) Name, Rank and Unit of the CO are not mentioned.

(o) In the space provided for recording place, words `c/o 56 APO’ are
mentioned instead of recording actual name of the place where hearing of the
charge was held or field, as the case may be.

(p) Inapplicable portions are not scored out and initialled by the CO.

(q) Para 2 is not scored out when there was no C of I held against the
accused or provisions of AR 180 were not complied with at the C of I held on
the matter forming the subject of the charge in respect of the accused.
 30

5. In order to avoid recurrence of the aforesaid defects, the following guidelines

should be adhered to by the CO during the hearing of the charge :-

(a) First and foremost, Appx ‘A’ to AO 03/2018/DV should be personally

filled up by the CO at the time of the hearing of the charge.

(b) In order to leave no room for doubt regarding the jurisdiction of the CO
over the accused, the particulars of the accused should clearly specify the unit
to which he is attached and authority for such attachment, in case he is so
attached.

(c) Tentative charge-sheet should be prepared on the lines of illustration of

charge-sheet given at pages 363 and 364 of MML Vol-II. Tentative charge-
sheet should bear the date on which the hearing of charge was held. After the
same was read out and explained to the accused it should be attached as
Annex-I.

(d) Witnesses heard must be material witness to the facts of the case i.e.
they should have direct knowledge of the facts of the case and their evidence
should be subsequently recorded at the S of E.

(e) Para 2 of Appx ‘A’ is only applicable when a C of I had been held
wherein provisions of AR 180 were complied with in respect of the accused.
In that case, the CO may score out Para 4 to 6. In all other cases, Para 2 has
to be scored out and initialled by the CO.

(f) In case the accused refuses to sign beneath Para `2’, the said fact
should be mentioned clearly on Appx in the form of a certificate stating
“Certified that the accused refused to sign”. The signatures of
Independent witnesses be obtained beneath the said certificate.

(g) Time and date of commencement of hearing of the charge should be

clearly filled in Para 3.

(h) In Para 4, personal particulars of prosecution witnesses i.e., No, Rank,

Name and Unit etc should be specified. Under the heading description of
documentary evidence, the description of documents produced by the
witness(es) before the CO should be recorded. Proceedings of C of I being
inadmissible in evidence in terms of AR 182 should not be produced at the
hearing of charge by the prosecution witnesses. The CO is required to hear
the witness(es), and the accused is at liberty to cross-examine them. The fact
whether or not the accused cross-examined the prosecution witness(es)
should be clearly specified in Para 4.

(j) The fact that the accused was informed by the CO that he was at liberty
to make any statement and call any witness in defence as mentioned in Para
5, should never be scored out.

(k) The statement of the accused, if any, should as far as possible be

recorded verbatim and attached as Annex-II with the ibid Appx `A’.
 31

(l) The statement of the accused and examination of defence witness(es)

should be held only after examining the prosecution witness(es) and not vice
versa.

(m) The Particulars of the defence witness(es) examined by the accused

along with date and details of documents, if any, produced thereto must be
filled in Para 6 of the said Appx. In case no witness is produced by the
accused, it must be stated so in Para 6 ibid.

(n) On conclusion of the hearing of the charge or where the witnesses

were not examined and the C of I was perused since provisions of AR 180
were complied with in respect of the accused, as the case may be, in Para 7,
the date and order of the CO be specified clearly, as follows:-

(i) Evidence to be reduced to writing.

(ii) Case to be disposed of summarily, if the CO is so empowered.

(iii) The charge be dismissed as prima facie case not established.

(o) The hearing of the charge should be conducted in the presence of two
independent witnesses (offrs/JCOs) whose particulars should be clearly
specified in Para 8.

(p) Name, rank and unit of the CO should be recorded beneath his
signatures and on the left hand side, `place’ and date should be specified.
 32

CHAPTER - 6

SUMMARY TRIAL OF NCO & OTHER RANKS

(AA SEC 80-82)

1. A Summary Trial means trial of an accused through a truncated / short

proceedings as prescribed under the law, without recording the evidence or entire
trial proceedings. A Summary Trial by the CO / Coy Cdretc is resorted to in respect
of a NCO or Other Ranks only in respect of minor mil offences, not serious enough to
be tried by a court-martial. However, if the CO feels that offence is serious enough,
requiring a punishment of Rigorous Imprisonment or reduction to ranks /lower rank
(in case of a substantive NCO), or punishment of Rigorous Imprisonment / Detention
of more than 42 days, then he must remand the case for trial by court-martial
(including a SCM) rather than resorting to Summary Trial under AA Sec 80-82.

2. There is no offence which a CO is compelled by law or by rules to send for a

court –martial (incl SCM). Each case should be considered on its merits, but a CO
should not dispose off a case summarily which he is debarred by AA Sec 120 (2)
from trying by SCM without reference to a superior authority. Similarly, he should not
dispose off a case summarily which deserves more punishment than he is
empowered to award summarily. Notes appended to various CHAPTERs of Army Act
from Sec 34 to 68 contain a caution as to which all offences should not be disposed
off summarily.

3. Since Summary Trial is a form of disciplinary action, hearing of charge under

AR 22 r/w AO 03/2018/DV as mentioned in the previous chapter of this Hand Book
must be held before the accused is marched up for Summary Trial under AA Sec 80.
The Summary Trial should be held after (minimum) 24 hrs of the ‘hearing of charge’
held under AR 22 r/w Appx ‘A’ to AO 03/2018/DV.

4. The first step towards Summary Trial under the power of the CO / Coy Cdr
(under AA Sec 80-82) is preparation of the ‘Offence Report’ as per IAFD-901.
Separate charge-sheet is not required to be prepared for Summary Trial to be held
under AA Sec 80.

5. Proceedings of Summary Trial are recorded on the ‘Offence Report’ (IAFD-

901) itself in the hand writing of the CO / Offr disposing of the case. The evidence is
heard orally and same is not required to be reduced to writing. The accused
NCO/OR cannot claim to be represented by a counsel or defending offr/friend of the
accused at a Summary Trial (Note to AA Sec 79).

6. While doing a Summary Trial under AA Sec 80 read with AA 81 & 82, the CO /
Coy Cdretc should follow the ‘Orderly Room’ procedure. The accused should be
marched upto the CO by the Coy Cdr/ Adjt on an ‘Offence Report’ (IAFD-901). The
charge contained in the ‘Offence Report’ should be read over and explained to him in
the language he understands and thereafter, plea of the accused i.e. whether he
pleads ‘Guilty’ or ‘Not Guilty’ of the charge, should be recorded in the ‘Offence
Report’ in the relevant column. If the accused pleads ‘Guilty’ then there is no need to
call and examine witnesses and sentence can be awarded straightway. However, if
the accused pleads ‘Not Guilty’ then the ‘Prosecution’ witnesses, followed by the
‘Defence’ witnesses (if any), should be examined verbally. The evidence of the
 33

witnesses at the Summary Trial is not required to be recorded in writing. After

hearing of witnesses and the statement made by the accused, if any, the officer
holding the Summary Trial should award sentence if he finds the accused ‘Guilty’ of
the charge. Names of the witnesses as well as sentence awarded should be entered
in the Offence Report (IAFD-901) at the relevant columns provided thereof.

7. The punishment that may be awarded summarily by CO / Coy Cdr etc are
listed in AA Sec 80 r/w AA Sec 81 and Para 443 (b) of Regulation for the Army (Vol
I).

8. A L/Nkis treated as ‘NCO’ for the purpose of summary punishments. (Note 15

to AA Sec 80).

9. A comprehensive list showing the types of summary punishments awardable

under the Army Act /Regs, type of respective entry (red/black) to be made and the
limitation / restriction to such punishments is given at Appx‘D’.

10. The type of summary punishments that may be awarded to ‘OR’ by the Coy
Cdr and other offrs are given at Appx‘E’.

11. A list of possible combination of summary punishments that may be awarded

by the COs are given at Appx ‘F ’.

12. The summary punishments that may be awarded to a person, who was NCO
(incl L/Nk or Paid/Acting Nk) at the time of commission of offence but who
subsequently became a Sep at the time of summary trial, are given at Appx‘G’.

13. A sampleOffence Report (IAFD-901) complete in all respect, is given at

Appx ‘H’.

Common Mistakes

14. (a) Hearing of Charge under AR 22 as per Appx ‘A’ to AO 03/2018/DV not
carried out before holding the summary trial under AA Sec 80.

(b) Minimum 24 hrs not allowed after hearing of the charge and before
holding the summary trial. This is violation of principles of ‘nature justice’
which mandates that the accused must be afforded adequate opportunity to
prepare his defence.

(c) Name of the witness(es) not mentioned in the relevant column in the
‘Offence Report’ (IAFD -901), thereby implying that no witnesses were heard
at the summary trial.

(d) A L/Nk, tried summarily under AA Sec 80 on the charge of AWL/OSL, is

awarded the punishment of reprimand/severe reprimand or RI in mil
custody/confinement to line/detention. The sentence is not valid because, as
per AA Sec 81 (4), the aforementioned punishments cannot be awarded to a
person who is an NCO at the time of trial, or was an NCO at the time of
commission of the offence. In the instant case, a L/Nkwho becomes
AWL/OSL will relinquish the L/Nk / appointment and will become a sepoy. In
other words, a L/Nk who is summarily tried for AWL/OSL falls in the category
 34

of AA Sec 81(4). Hence, he cannot be awarded the punishment of reprimand /

severe reprimand or rigorous imprisonment / confinement to lines/detention by
way of summary trial(AA Sec 80 r/w Sec 81(4))

(e) A sepoy sentenced to 28 days of RI and 28 days of detention at the

same time, which is illegal because the total punishment of RI and detention
cannot exceed 42 days aggregate. [AA Sec 81 (3)]

(f) An OR awarded 14 days pay fine twice in the same month. The second
awarded is illegal because as per AA Sec 80 (4) award of not more than 14
days pay fine can be given in one month (AA Sec 80 (h)).

(g) A serious/moral turpitude offence, such as misappropriation of

public/regt fund, disposed off summarily under AA Sec 80. Such serious
offence ought to be tried by SCM at least.

Check List

12. (a) Is the accused a person posted/ attached to the unit commanded by
the CO holding the summary trial?

(b) Is the officer dealing with the case competent to hold the summary trial
of the accused?

(c) Is the accused person of the rank whose case can be dealt with by
summary trial by the authority conducting trial?

(d) Can the charge preferred against the accused be dealt with
summarily?

(e) Has the accused been earlier acquitted or convicted by a Court Martial
or Criminal Court or dealt with by the award of an Administrative Censure for
the same offence?

(f) In the proceedings, including the charge-sheet, has the accused been
described by his substantive rank?
(g) Has AR 22 been duly complied with by the CO?

(h) Has summary of evidence been recorded?

(j) Is the S of E recorded on the orders of the CO of the accused?

(k) In the charge-sheet, has the accused been charged for an offence
punishable under any of the AA sec 34 to 69?

(l) Has the charge-sheet been drafted in accordance with the illustration
given on page 363 of MML Vol II?

(m) In the charge-sheet, do the particulars of the charge support the

statement of offence?

(n) Has the charge-sheet been signed by the CO of the unit to which the
accused belongs and has he appended his signature with dt and place?
 35

(o) Has the charge-sheet and S of E been handed over to the accused 96
hours (on active service 24 hours) before trial?

(p) Has the proceedings been recorded on the correct Form, keeping in
view the fact that the accused has or has not consented to dispense with the
attendance of witnesses?

(q) Has the consent certificate as per specimen (where applicable) been
obtained after the service of the charge-sheet upon the accused?

(r) Has the inapplicable portion of the Summary trial Form been scored
out and initialled?

(s) Has the accused been arraigned on each charge(s)?

(t) Has the plea of the accused on each charge recorded separately as
`Guilty' or `Not Guilty'?

(u) In case Form II has been used, has the auth dealing with the case
examined prosecution witness(es)?

(v) Has the accused made a statement and examined defence

witness(es)?

(w) Has extract of the statements of accused been att with Form II duly
authenticated by said auth?

(x) Has the statement of the accused or its gist attached to the
proceeding?

(y) Has the finding on each charge been correctly recorded?

(z) Is the punishment awarded to the accused authorised vide the

CHAPTER under which trial was held, i.e., AA Secs 83, 84 or 85, as the case
was and has the punishment been correctly worded?

(i) Have all the columns in the conduct sheet, IAFF-3013 been
correctly completed?

(ii) Have the entries made in the conduct sheet been authenticated
by `A' Staff Officer?

(ac) Have the following original documents been forwarded alongwith

Summary Trial proceedings for review to the superior authority?

(aa) C of I, if held.

(ab) Appendix `A' to AO 03/2018/DV (in duplicate).

(ac) Tentative Charge-Sheet (in duplicate).

 36

(ad) S of E(Manuscript alongwith one typed copy).

(ae) Charge-Sheet.

(af) Consent Certificate.

(ag) Form 1 or 2, as applicable.

(ah) Conduct Sheet (IAFF-3013).

(aj) Statement of the accused, if any.

(k) Receipt of charge sheet & S of E.

(al) Delay Report.

 37

CHAPTER - 7

SUMMARY OF EVIDENCE
(AR 23)

Meaning and Scope

1. Summary of Evidence is a synopsis of evidence and contains only the

relevant data and other facts which go to prove the charge or charges which the
Commanding Officer tentatively prefers against an accused. The Summary of
Evidence may establish a prima facie case totally different from the charges
tentatively preferred by the Commanding Officer of the accused. In the alternative
the Summary of Evidence may not disclose any charge and the dismissal of the
charge may accordingly have to be advised depending on the nature of the charge
disclosed. The Summary of Evidence is the basis on which the whole case is based.
If a case is properly investigation and the Summary of Evidence well recorded then
the disciplinary case is expeditiously dealt with. A badly recorded Summary of
Evidence means faulty investigation and will result in delay in administration of
justice as additional Summary of Evidence may have to be recorded. It is, therefore,
very essential that the officer detailed to record the Summary of Evidence should
proceed systematically with its record. If possible the record of the Summary of
Evidence could commence on the same day as the conduct of the investigation by
the Commanding Officer. A Summary of Evidence can be ordered only by the
Commanding Officer of the accused (AR 22 (3)(c)). (Reference for recording of
Summary of Evidence : MML Vol I Chapter III, AR 23 and Memoranda for the
guidance of officers (MML Vol II Page 436) and Paras 1 to 10 of Notes on Indian
Military and Air Force Law.

2. A Summary of Evidence (‘S of E’) is required to be recorded in all disciplinary

cases of Offrs, JCOs and WOs. As regards OR, S of E need to be recorded only in
those cases which are intended to be tried by a court-martial incl SCM.Summary of
Evidence can only be ordered by the Commanding Officer of the accused. It can be
recorded either by the Commanding Officer himself or he can detail any other officer
to record it, but he should not be an officer who has given material evidence at the
investigation.

3. A S of E is the evidence reduced to writing in a discp case under orders of the

CO passed after ‘hearing of charge’ done in accordance with AR 22 r/w Appx A to
AO 03/2018/DV. (See CHAPTER 4 of this Hand-Book). Purpose of recording of S of
E is to enable the CO/ Superior discpauth to know the entire fact & circumstances of
the case so as to help them take appropriate decision regarding the charges to be
finally preferred and correct mode of disposal of the case [e.g. Summary Trial
(against Offrs/JCO), Summary Court Martial (NCO/OR) or General Court Martial
etc).] For that purpose, a S of E has to be recorded because the evidence contained
in a Court of Inquiry proceedings are not admissible in evidence, hence no
cognizance of the same may be taken. (AR 182 refers).

4. The procedure for recording of S of E is provided under AR 23 and notes

thereto. The accused cannot claim to be represented by a counsel, defending offr or
friend of the accused during recording of S of E (Note 3 to AR 23).
 38

5. Guidelines for recording of S of E are contained at pages 436 to 438 of MML

Vol II.

6. The officer detailed to record a summary of evidence should make himself

acquainted with all the circumstances of the case and the testimony of the
witnesses who gave evidence before the CO, and carefully consider whether any
additional evidence is relevant and necessary [See AR 23 (1)]. Intelligent and patient
investigation will often result in the discovery of a missing link in the chain of
evidence, or corroborating evidence, or of evidence tending to exculpate the
accused. It may even save an unnecessary or abortive court-martial.

Manner of Recording

7. The evidence of each witness relating to the offence shouldbe recorded in

narrative form as nearly as possible in his own words. While recording thestatements
of various witnessesirrelevant and inadmissible portions should be excluded. The
witnesses should be informed, on what particular point or relating to which particular
circumstance(s), evidence is required to be given by him. The witnesses are not to
be sworn or affirmed. The recording officer should not act as a stenographer or tape-
recorder. He should exercise judicious discretion and record only evidence relevant
to the charge in question. However, if the accused insists that certain piece of
evidence is material to his defence, the same should be recorded.If it is subsequently
found inadmissible, it should be bracketed.

8. He should avoid recording of hearsay or opinions of witnesses. Opinions of

expert witnesses like medical officer oran armourer may, however, be recorded.
Statementsmade by theaccused in relation to the incident to other witnesses may be
recorded, if stated by that witness. However, if such statements amount to
confession, the same should only be recorded, after the witness states that the
accused voluntarily made the said statement to him and that he did not
exercise any threat, inducement or promise to obtain the statement, or confession
from him.

9. The recording officer need not refer to the proceedings of the court of inquiry
as it would prejudice his mind and vitiate the record of summary of evidence as well
as defeat the purpose for which the summary of evidence has been ordered
however, he must allow the accused to refer to it, to cross-examine
prosecution witnesses. He should act impartially, without favour or affection and
make a faithful record of evidence as narrated to him by the witnesses,
pertinent to charges on which the evidence he has been ordered to record.

Documentary Evidence.

10. Each document must be produced through a competent witness in original

unless the original has been lost or it is in possession of the accused and the
accused has refused to part with it, after due notice has been given to him by the
CO. The record of production of documents should be recorded as under:-
 39

(a) Confessional statements

“I produce the confessional statement of the accused in original. The

documents received, read, shown to the accused and is attached with the S of
E as Exhibits`...' (mark exhibit by letter like`A',`B' etc.) I further state that
the document is in the hand-writing of the accused (or givename of the
author). Identify the signature of.... on this statement.

(b) Other documents

“I produce the original receipt of Rs 50,000/- (Rupees fifty thousand only)

givento me by the accused in original. The receipt is received, read, shown to
the accused, marked as Exhibit`...' and attached to the S of E. I further state
that the receipt is in the hand-writing of.... (give name of the author). I identify
his signature thereon. I had seen... (give name of author), preparing the
receipt in my presence [or I am conversant with the hand-writing/signature
of.... (give name of the author)]."

11. The documents so received may be shown to other witnesses who may be
able to identify the hand-writing and signature of the author and state about the
circumstances under which the document was prepared/used in relation to the case
under inquiry. The witness should state, how he is able to identify the hand-writing
and signature on certain document, e.g. did he see the author writing or he is
conversant with the hand writing and/or signature in official or private capacity.

12. Only such documents which are admissible in evidence need be received in
evidence and attached to the S of E. A confession made by the accused to a police
officer or in the custody of a police officer or at a court of inquiry is not admissible
and should not be taken on record of S of E.

Exhibits of material objects.

13. All exhibits relating to material objects such as storesinvolved in a theft case,
rifle, knife etc. be produced and identified by a witness. These objects should
be given a distinctive number I, II, III, IV, etc., to facilitate their description and
identification by subsequent witnesses. The record of evidence will be as follows: -

"I produce and identify rifle No... which I recovered from the accused.
The rifle is received, shown to the accused and is labelled` Material Exhibit I'.
A copy of the label is attached to the S of E as Material Exhibit `I' and the Rifle
is sealed and kept in safe custody."

14. All particulars, identification marks and the condition of the material exhibits
should be stated by the witness(es) concerned.

Plans and Sketches

15. Where precise information as to the locality of the offence is likely to be of
use in understanding a case, a plan drawn to scale should accompany the S of E
submitted to superior authority. If it is considered necessary than matters of
evidence should be shown on this plan (e.g.), place where the body was found, in a
murder case, or position of accused or a witness, the plan should be in duplicate ,
and these matters should only appear on one copy. If the plan is subsequently
 40

produced at the trial, the unmarked copy will be used, being put in and shown to, by
the person who made it. These matters of evidence will then (if necessary) be
marked on it, in accordance with the evidence given at the trial and a note to that
effect be made in the proceedings.
16. At the conclusion of evidence of each witness for the prosecution, the accused
should be given an opportunity to cross-examine him. The evidence adduced at the
cross-examination be recorded in the narrative form. If the accused desires that
the cross-examination be recorded in question-answer form, the same be so
recorded. If the accused declines to cross-examine the witness, the record should
read -
"Cross examination declined by the accused."

17. The whole of evidence (including cross-examination) should be read to the

witness or interpreted in the language he understands. His signature be obtained
on each page of his statement before he is allowed to withdraw.

18. After the evidence of all prosecution witnesses have been recorded, the
accused should be cautioned in terms of AR 23(3) in the presence of an independent
witness. Any statement made by him be then taken down verbatim. The accused
will not be cross-examined upon it. The independent witness should be present until
the statement of the accused has been recorded or he declines to make a statement.
In both the cases the signature of the accused and independent witness shall be
obtained. This record will be made in the following form :-

”After recording the evidence of the prosecution witnesses, the accused is cautioned
in the presence of IC...Capt...ABC..an independent witness as under :-

Do you wish to make a statement? You are not obliged to say anything
unless you wish to say anything but whatever you will say will be taken down
in writing and given in evidence."

19. After recording the statement of the accused or the fact that he declines to
make a statement, the accused may be asked whether he intends to produce any
witness in his defence, including any witness as to character. Should he elect to do
so, the evidence of such witnesses should also be recorded in the same manner as
of other witnesses.
20. The number(s) of the defence witnesses should be given separately and not in
continuation to the prosecution witnesses. It will start as defence witness No 1(DW).
The statement(s) of thedefence witnesses should not be recorded unless the
accused hasmade the statement or has declined to make a statement after
compliance of the procedure laid down in AR 23(3).

21. If attendance of a witness cannot be procured owing to the exigencies of

service or for any other reason, his written statement will be obtained vide AR
23(5). The record of statement will be made as under :-
“No.... Subedar...Regiment, is absent. It is hereby certified that owing to
exigencies of service the attendance of this witness could not be procured
readily. A written statement of his evidence purporting to be signed by him
has been read over to the accused marked`...'and included in the S of E."
 41

Additional Summary of Evidence.

22. On receipt of the S of E, the CO shall carefully peruse the same. If he finds
that evidence has not been recorded on certain aspects, he will order the recording
officer to record additional evidence on these aspects.
23. The same provision as are applicable in case of S of E are required to be
followed at additional S of E. The accused should be afforded full opportunity to
cross-examine witness, call witness and make statement if he so desired in his
defence.
24 Points to be kept in mind :-
(a) Before taking down the evidence :-
(i) Consider what offence or offences appear to have been
committed.
(ii) Consider the essential elements of such offence, or of each
offence.
(ii) Consider what facts and circumstances must be proved in order
to establish not only the commission of an offence but also the
commission of it by the accused, i.e., what facts are relevant to the
issue.
(iii) Consider what evidence should be adduced in order to prove
each material fact; in other words, how it is proposed to prove each of
the necessary facts by admissible evidence. He will generally find it
convenient to ascertain from each witness roughly what evidence that
witness can give before actually taking down the evidence.

(b) While recording the evidence of witnesses to writing:-

(i) Take down the evidence and arrange it, both in the statements of
witnesses and in the summary, as far as possible so that events are set
out in chronological order and the court may have a connected story to
consider. A statement of evidence as to facts should commence by
recording the place, date and time (if material), to which the evidence
refers.

(ii) Ensure that only such evidence as is admissible in law is adduced;

particularly eliminate all irrelevant and hearsay statements.

(iii) Avoid attempting to tell the story of the crime by recording

conversations at which the accused was not present.

(iv) Arrange for the preparation, production and proof of plans where
necessary. (see Notes to AR 24).

(v) Record the evidence of witnesses as neatly as possible in their

own words and expressions. When evidence is not given in English, it
will be interpreted and recorded in English.
 42

(vi) If the accused has to any person or at any time said anything by
way of explanations or admission of any of the facts in issue, consider
the circumstances in which the statement was made and if it is
admissible let a witness be called to prove it.

(vii) Remember that, when it is proposed to tender evidence of an

admission or confession, it is desirable that evidence should first be
adduced by the prosecution of the circumstances in which it was made
to show that it was voluntary, though under the law the onus lies upon
the accused of showing that a confession made by him was not
voluntary.

(viii) With regard to the attendance of witnesses, take advantage

where desirable of the provisions of AR 23 (5). The written statements
of such witnesses must be signed and certified as required by the said
rule.

(ix) Remember that a civilian witness can be compelled to attend

the taking of the summary [AAs.135 and 136 and AR 23(6)].

(x) At the close of the evidence of each witness who is not cross-
examined by the accused, make a note that ‘accused declines to cross-
examine’ [See AR 23(2) ].

(xi) Ensure that the evidence of each witness is signed by the

witness [AR 23(3)].

(xii) Ensure that the record of any statement made by the accused is
prefaced by a note that he was formally "cautioned" [ AR 23(3) ].

(xiii) Enter at the end of the S of E a statement that the requirements

AR 23(1), (2), (3) and (4) have been compiled with, and sign the
summary. The place and date should be stated.

Common Mistakes
25. (a) The officer recording S of E, cross-examined the accused on the
statement made by him in terms of Army Rule 23 (3), which is not permissible
under the law.
(b) During recording of additional S of E, caution in terms of Army Rule 23
(3) has not again been given to the accused (which was a must).
(c) Security classification of ‘Confidential’/’Restricted’ given to Summary of
Evidence. Only in case of ‘Secret’ proceedings, security classification of
‘SECRET’ will be given and copies not more than as directed, will be made.
(d) Dates have not been put below the signatures of witnesses /
independent witnesses/accused.
(e) Prosecution as well as Defence witnesses have been cross-examined
by the officer recording S of E, which he is not authorized to do.
 43

Purpose for Which ‘S of E’ May be Used

26. A S of E may be used for any of the following purposes: -
(a) It assists the CO to decide whether the accused should be remanded
for trial by a court martial or the charge(s) against him should be disposed of
summarily or whether the charge(s) should be dismissed. It also assts the CO
to frame other suitable charge(s) which emerge from the S of E which was
recorded for specific tentative charge(s).
(b) It enables the JAG’s Dept to advise on an appl for trial.
(c) It assists the convening auth to consider whether it should order trial by
a court martial & if so, what would be the prop tribunal.
(d) It provides a brief for the prosecutor which would indicate to him the
nature of evidence that he is reqd to lead or produce in the court.
(e) It informs the accused of the nature of evidence against him & enables
him to prep his def.
(f) It is given to the Presiding Offr/Judge Advocate prior to the
commencement of court martial by the convening auth. It thus assists the
court in ref the matter to convening auth if it suo-moto finds need of amdt of
the charge, based on evidence contained therein, before commencement of
trial or upon an objection on charge(s) raised by the def. It also assists the
court to frame suitable questions to witness(es) to elicit the truth at the trial.
(g) It assists the court in deciding whether a plea of guilty should be
accepted & where such plea of guilty is accepted, it enables the Court to
decide the proper punishment to be awarded. It also enables the confirming
offr to know the facts of the case & to assess the propriety of the sentence.
(h) It enables the JAG or the Presiding Offr serving on the court martial to
appreciate the nature of case & to check inconsistencies bent the evidence
recorded in S of E & that which is deposed at the trial.

(See sample proceedings S of E att at Appx ‘J’)

Check List

27. (a) Is the accused person against whom it had been ordered to be recorded,
subject to AA?

(b) Has it been ordered to be recorded by the CO of the accused after

hearing the charge under AA 22 r/w Appx ‘A’ to AO 03/2018/DV?

(c) Has it been recorded under the heading of the proceedings that the
same was being recorded pursuant to the orders of the CO of the accused?

(d) Has it been recorded by the CO or by an offrdetl by him, who is not a

witness himself?

(e) Has the full explanation of the ch (tentative ch sheet), the purpose of
the S of E & the rts of the accused explained to him before commencement of
its recording?
 44

(f) Has the evidence of witnesses been recorded in a narr form?

(g) Has the questions & answers in cross exam by the accused numbered
consecutively?

(h) Has the evidence of witnesses been recorded w/o administering oath &
in chronological order in which the events under investigation occurred?

(j) Has the place of occurrence been brought out in the evidence of
witnesses?

(k) Has the accused been iden by witnesses who are in aposn to do so?

(l) Have the sketches/plans att to the proceedings been duly produced by
competent witnesses?

(m) In cases where witnesses have ref to the iden of the accused/objs
during the hrs of darkness, has the state & means of vis been recorded in
evidence?

(n) Has the articles which are the subject matters of the offence been
produced &iden by competent witnesses?

(o) In the docus relating to the accused & produced, has it been brought
out that the accused is the person ref to therein?

(p) Have the docus/exhibits att to the proceedings been marked by a letter
on the right hand top corner & signed by the offr recording S of E?

(q) Has the evidence of each witness been read back to him & signed by
him?

(r) In cases involving accounts, have the witnesses explained in their

statements the docus that they had produced?
 45

ACTION AFTER RECORDING OF S of E

(Under AR-24)

S of E

S of E put up to CO under a

Noting (on file)

CO to consider S of E and

Pass one of the following orders

Case to be Accused Case to be Charge (s)

disposed off remanded to referred to higher dismissed
by CO by trial by SCM auth for GCM/ for lack of
Summary Trial (OR) DCM/ SGCM/ evidence
(JCO/OR) Summary trial
 46

CHAPTER - 8

SUMMARY TRIAL OF JCOs by CO

(AA Sec 85)
1. A CO holding the rankof Color above has the power to summarily dispose
off not so grave an offence committed by a JCO under his command, instead of
remanding the case for summary trial by a superior Cdr or for trial by a General Court
Martial (GCM)/ Summary General Court Martial (SGCM). A CO (not being less than
a Col) may award severe reprimand or reprimand and stoppage of pay &
allowances to make good a loss or damage (occasioned by the offence of the
accused JCO) under AA Sec 85 ready with AR 26.

2. Unlike in the case of NCO/OR, summary trial of the JCOs is not recorded on
the Offence-Report (IAFD-901). Summary trial of JCO by the CO under AA Sec 85 is
required to be recorded either on ‘Form 1’ or ‘Form 2’, as given at page 447 and 448
of the MML Vol II, depending upon the situation stipulated therein. (Notes to AR 26).

3. Like the summary trial in the case of NCO/OR, so also in the case of JCOs,
the summary trial should be resorted to in case of the offences of minor nature not
requiring punishment more than ‘severe reprimand’ or ‘reprimand’ or stoppage of pay
and allowances to make good the loss that may have been caused by the offence. A
Coy Cdr/Adjt has no power to try a JCO summarily.

4. Recording of S of E is a must for summary trial of a JCO by the CO.

5. Proceedings of summary trial of a JCO are to be recorded on ‘Form I’ given at

page 447 of the MML Vol II, if the JCO consents in writing to dispense with
attendance of witnesses. A sample ‘Form I’, complete in all respect is placed at
‘Appx ‘K’.

6. Proceedings must be recorded on‘Form 2’ given at page 448 of MML Vol II if

the JCO does not consent in writing to dispense with attendance of witnesses. A
sample ‘Form 2’, complete in all respect is placed atAppx ‘L’.

7. Proceedings should be recorded on ‘Form 2’ even when accused gives the

consent to dispense with attendance of witnesses but pleads ‘Not Guilty’ to the
charge during the Summary Trial.

8. As in the case of Summary Trial of an NCO/OR [which is recorded on ‘Offence

Report’(IAFD-901)], so also in the case of Summary Trial of JCO(which is recorded
on Form 1/ Form 2 as mentioned above), the witnesses are heard verbally and their
evidence are not required to be recorded in writing. In case the accused pleads
‘Guilty’ to the charges, then even verbal hearing of the witnesses would not be
necessary and the accused JCO would be awarded punishment on the basis of his
plea of ‘Guilty’.
 47

9. Following summary punishments are awardable to a JCO by the CO :-

(a) Severe reprimand or Reprimand - if CO is of the rk of Col.

(b) Stoppages of pay & allowances to make good a loss occasioned by the
offence of the JCO (to be awarded only when the loss has been quantified in
the charge).

Common Mistakes

10. (a) Summary trial was held without recording the S of E. For all summary
trials of a JCO, Summary of Evidence ( S of E) is a must, which should be
recorded after the ‘hearing of charge’ under AR 22 r/w Appx ‘A’ to AO
03/2018/DV.

(b) Summary trial proceedings in respect of a JCO was recorded on IAFD-

901 (Offence Report) instead of Form -1 or Form-2 given at page 447 or 448
of MMLVol II.

(c) A CO holding the rank of ‘Lt Col’ awarded the punishment of

‘Reprimand’ or ‘Severe Reprimand’ to the accused JCO which is illegal. To
award either of these two punishments, the CO should be of the rank of ‘Col’
or above.

(d) ‘Form-1’, instead of ‘Form-2’, was used for the summary trial of the
JCO even though he pleaded ‘Not-Guilty’ to the charge. Whenever the
accused JCO pleads ‘Not Guilty’ to the charge, ‘Form-2’ (and not Form-1)
should be used to record the Summary Trial proceedings even when the
accused gave written consent to dispense with attendance of the witnesses.
 48

CHAPTER - 9

SUMMARY COURT MARTIAL

1. A Summary Court Martial (SCM) is a type of court-martial authorized under

the Army Act to be held by the CO in respect of a person below the rank of WO (i.e.
NCO/OR). The institution of Summary Court Martial (SCM) is peculiar to Army. Its
purpose is to maintain discipline by means of prompt disposal and effective
punishment to the offenders by the Commanding Officers. A Summary Court Martial
(SCM) is called so because, though it is a type of court-martial, but its procedure is
not as elaborate as that of a GCM/DCM.

2. A Summary Court Martial (SCM) differs from a Summary Trial (see CHAPTER
5 of this book) in following respects :

(a) Though a SCM and a Summary Trial (ST) both are held by CO in r/o an
NCO/OR, but the power of punishment differs. In a SCM the CO, if not below
the rank of Lt Col, may award upto 1 year Rigorous Imprisonment coupled
with dismissal / reduction to ranks, whereas in a Summary Trial not more than
42 days of Rigorous Imprisonment coupled with Detention may be awarded.
Further, a NCO cannot be sentenced to Rigorous Imprisonment or reduced to
ranks/lower rank in a Summary Trial, but only through SCM.

(b) A SCM is held by the CO alone, though proceedings are required to be

attended throughout by two offrs/JCOs or either of the two. A Summary Trial
on the other hand, may also be held by a Coy Cdr/ Adjt under certain
circumstances if so authorized by the CO.

(c) A SCM is required to be recorded on IAFD-907, whereas a Summary

Trial of a NCO/OR is required to be recorded on an ‘Offence-Report ‘(IAFD-
901).

(d) A S of E should invariably be recorded before remanding the accused

for trial by SCM. In case of Summary Trial of an NCO/OR, however, no S of E
is necessary.

3. The powers of SCM are sufficient to deal with all ordinary offences committed
by persons below the rank of WO. In the case of aggravated offences, however, the
CO should apply to the convening authority for convening of a DCM or GCM for trial
of the accused.

4. In deciding whether an accused should be tried by GCM or DCM or SCM,

where the circumstances permit trial by either of these forms of court-martial, the
Convening Officer will bear in mind :-

(a) The rank of the accused;

(b) The nature of the offence;

(c) The prevalence of the particular offence charged;

 49

(d) The general state of discipline in his command;

(e) The character of the accused; and

(f) The maximum sentence which can be imposed having regard to any
sentence which the accused is already serving.

5. As mentioned above, though the CO of the unit to which the accused belongs
or is attached alone constitutes the court in a Summary Court Martial (SCM) but the
proceedings must be attended by two independent persons (not connected with the
case in any manner), who may be either two Offrs or two JCOs or either of the two
irrespective of rank. (AA Sec 116)

6. A CO may try by SCM any person upto the rank of ‘Hav’ and may award any
punishment upto 1 year of rigorous imprisonment (incl dismissal) if CO is holding the
rank of Lt Col or above, and upto 3 months rigorous imprisonment (incl dismissal) if
the CO is below the rank of Lt Col. (AA Sec 120)

7. A CO can try by SCM any offence committed by an OR except the following :-

(a) Civil offence charged under AA Sec 69.

(b) Offence under AA Sec 34 punishable with death.

(c) Mutiny (AA Sec 37).

(d) Offence against CO himself or any of his relatives / near or dear ones.
(AA Sec 120).

(Note : These offences may be tried by the CO through SCM only after
obtaining sanction of the Bde Cdr)

8. A copy of the charge sheet and summary of evidence must be handed over to
the accused minimum 96 hours in advance if the trial is to be held in peace (non
active service) or minimum 24 hours in advance if the trial is held on active service.
(AR 34 refers). As per AHQ policy letter No 35418/AG/DV-1 dated 10 Apr 1995
however there should be a gap of minimum 7 days between the remand of the
accused for trial by SCM and the actual date of commencement of SCM
proceedings.

9. Proceedings of SCM are recorded on IAFD-907 (see page 424 of MML).

10. Punishment awarded by SCM does not require confirmation and hence may
be implemented straight away. However, after promulgation of the finding and
sentence awarded by the SCM to the accused, entire SCM proceedings together
with the record of ‘Hearing of Charge’ as per Appx ‘A’ to AO 03/2018/DV, the
Summary of Evidence and Court of Inquiry, if any, must be forwarded to
ComdDyJAG(if in peace fmn) or the DJAG Corps(if serving under field fmn)(AR 133).
 50

GUIDELINES FOR CONDUCTING SUMMARY COURT MARTIAL

General
11. The officers holding the trial and the reviewing officers should follow the
procedure laid down in the AA, ARs, RA, and such instructions issued from time to
time.

Commencement of Disciplinary Proceedings

12. (a) Frame a tentative charge, hear the charge in accordance with the
procedure laid down under AR 22 and record the proceedings of such hearing
in the form given at Appx ‘A’ to AO 03/2018/DV. This is a mandatory legal
requirement.

(b) Dismiss the charge on conclusion of hearing of charge if, in his

opinion, the evidence does not show commission of an offence under the AA
or he is satisfied that the charge ought not to be proceeded with.

(c) If it is decided to proceed with the case, exercise one of the option
mentioned under AR 22 (3).

(d) If the Summary of Evidence has been recorded in pursuance to the

orders given under AR 22 (3) (c), consider the same in accordance with AR 24
and decide if disposal of the charge by SCM is warranted subject to the
provisions of AAs.120 (2) and RA Para 459. The Summary of Evidence should
be put up to the CO through the Adjt (unless he is himself a witness in the
case in which case the Summary of Evidence should be put up directly to the
CO ) on file under a noting by the offr recording S of E. After going through
the S of E, the CO should pass orders in writing on file that “having gone
through the S of E, I am satisfied that a prima facie case exists against
the accused on the charge on which S of E has been recorded and I
direct that the accused shall be brought to trial by SCM on the said
charges”. In addition, if pre trial documents are not required to be sent
and CO in exercise of his powers under AA sec 120 is holding SCM, CO
must render a reasoned order for his said decision and said order will be
attached with the SCM proceedings.

(e) After passing the above mentioned direction on file by the CO, the fair
charge sheet should be prepared and same should be served along with S of
E to the accused under a proper receipt. The accused should also be asked to
intimate his choice of Friend of Accused, if any by a fixed date, failing which a
Friend of Accused (preferably an offr) not connected with the case, should be
detailed to act as the Friend of the Accused. The CO should frame the charge
for the offence(s) disclosed by the S of E or as advised by the DJAG/Dy JAG
concerned.

(e) Fix date for trial of the accused by SCM, procure the attendance of the
prosecution and defence witnesses, and warn the accused for trial as
provided in AR 34. (AHQ letter No 35418/AG/ DV-1 dated 10 Apr 95 refers).
The SCM should be held after 7 days of serving of charge-sheet and
Summary of Evidence to the accused and remanding the accused for trial by
SCM. After the SCM, if the accused is found ‘guilty’ and awarded punishment,
 51

the same should be promulgated to him in a parade by the Adjt and the
sentence should be executed straight away thereafter. After the promulgation,
the SCM proceedings should be forwarded, together with the record of
Hearing of Charge (Appx ‘A’ to AO 03/2018/DV), S of E and Court of Inquiry, if
any, directly to the DJAG Corps.

COMPOSITION

13. The officer competent to hold the trial is the CO of the accused. He alone
constitutes the Court. In regard to powers of officiating CO, see AR 5. He would have
same powers as the actual incumbent, except the power to award sentences, which
would be governed by AAs 120 (4) and (5). The proceedings are to be attended
throughout by two officers or JCOs or an officer and a JCO. See AAs 116. The Court
should ensure that these two officers/JCOs attending the trial are present throughout.

Jurisdiction

14. Any person subject to the AA and under the command of the officer holding
the trial except an officer, JCO or WO, can be tried by a SCM. (See AAs 120 (3), RA
Para 381 and Army HQ letter No 42231/AG/DV-1 dated 22 May 85). An NCO or an
OR can be tried by SCM held by the CO of the unit to which he is posted or after the
commission of an offence, properly attached under orders of the competent authority.
(Ref AO 07/2000)

Offence

15. Any offence punishable under the AA is triable by SCM. However, the CO
shall not try offences under AA Secs 34, 37 and 69 or any offence against the officer
holding the trial except :-

(a) With the sanction of the officer empowered to convene a DCM, or on

active service SGCM;

(b) When there is grave reasons for immediate action and a reference to
aforementioned authority cannot be made without detriment to discipline (AA
Sec 120(2) refers). In latter case a memorandum as required by AR 130
should be attached to SCM proceedings.

Sentence

16. Any sentence as mentioned in AA Sec 71 other than that of Sub Sec (a),
(b)and (d) of ibid section and imprisonment not exceeding one year if CO is Lt Col or
above, and not exceeding 3 months, if he is below that rank.

Procedure

17. The procedure of holding the trial by a SCM is given in ARs 106 to 133.
 52

Proceedings

18. The officer holding the trial, hereinafter called 'The Court' shall, record or cause
to be recorded the proceedings of the SCM in English or Hindi language on the form
IAFD 907(see AR 106). The amended specimen form is given on pages 424 to 429
of the MML, 1983Vol II. The proceedings should be prepared in triplicate.

Important Aspects In Relation To IAFD-907

19. Some important aspects which the CO should bear in mind while conducting
the trial, are mentioned in the succeeding Paras :-

Page `A’

20. (a) The officers/JCOs attending the trial shall not be sworn/ affirmed. They
take no part as such in the proceedings and have no special duties, but the
officer holding the trial may consult them, if he so desires.

(b) In any SCM, an accused person may have a person to assist him,
during the trial, whether a legal advisor or any other person. He is called friend
of the accused. He may advise the accused on all points and suggest
questions to be put to the witnesses, but shall not himself examine or cross
examine witnesses or address the Court. Though AR 129, does not make it
obligatory to provide the accused with a person of his choice to assist him
during his trial, the propriety demands that a person of his choice, whenever
possible, should be provided to him. [AO48 /83 AHQ letter No 35418/AG/DV-1
dated 10 Apr 95 refers].

(c) As a general rule, the officer holding the trial should himself take the
interpreter's oath. If necessary, he can appoint a competent interpreter, who
may be one of the officers or JCOs attending the trial. Whoever interprets any
evidence, should be sworn or affirmed as interpreter.

Page ‘B’

21. (a) The charge sheet must be read/interpreted to the accused marked as
'B-2' and signed by the officer holding the trial as `The Court' on the top right
corner. It should be annexed between pages 'B' and 'C' of the proceedings. It
should not be pasted on page 'C'. (See Note 4 to AR 111).The charge sheet
must be signed by the CO only, (See AR 31 and Note 1). Unit of the CO must
be recorded under his signature.

(b) On arraignment, plea of the accused should be recorded as 'Guilty' or

'Not Guilty' vide AR 115 (1). The plea should neither be recorded as 'Yes' or
'No' nor in any other manner. If the accused pleads guilty to the charge, the
implications of the plea should be explained to the accused by the officer
holding the trial vide AR 115(2) and the fact of the same having been
explained recorded in the proceedings in accordance with AR 115 (2A).
 53

(c) If the charge sheet contains more than one charge, the accused must
be separately arraigned on each charge and his plea on each charge
separately recorded, see AR 111 (2) and Notes thereto.

Page `C’

22. (a) If the trial proceeds on a plea of guilty, the verdict (finding of the
Court) should be recorded on page 'C' only and should not again be recorded
on pages 'H' or 'I'. The verdict (finding) of the Court should be recorded on
each charge, including the alternative charges as per the specimen given on
page 363 of the MML 1992 and page 233 of the MML 2011 Vol. II.

(b) If there is no S of E, or it is incomplete, sufficient evidence to enable the

Court to determine the quantum of sentence, and the reviewing officer to know
all the circumstances connected with the offence, should be recorded. Such
evidence be taken down on page 'D' of the proceedings in the same manner
as on a plea of not guilty, see AR 116 (2).The S of E, if any, should be
marked “Exhibit “1” and attached to the proceedings after page 'J'. It should
not be annexed between pages 'B' and 'C'.

(c) Statement of the accused should be recorded verbatim as far as

possible. If from the statement of the accused, or from the S of E or otherwise,
it appears to the Court that the accused did not understand the effect of his
plea of 'Guilty', the Court shall alter the record and enter the plea of 'Not
Guilty', and proceed with the trial accordingly. [See AR 116 (4)].

(d) Record on pages 'D' to 'H' is made and the verdict on page 'I' is
recorded only when the accused pleads ‘Not Guilty' to the charge(s), (See AR
118).

Page 'D'

23. (a) If the accused pleads 'Not Guilty' to the charge, the procedure given
in ARs 118, 119, 141 and 142 shall be followed.

(b) The evidence shall be taken down in narrative form as nearly as

possible in the words used; but in any case where the Court considers it
material, the questions and answers shall be taken down verbatim, see AR
106 (2) and Notes, AR 92 and Notes.

(c) After recording the evidence of each witness for the prosecution, the
Court should allow the accused to cross-examine the witness.

(d) If the accused declines to cross-examine any witness, the fact be

recorded as

"Cross-Examination Declined by the Accused".

(e) If any new matter has been introduced by the accused during cross-
examination which needs clarification, the Court, may ask questions to the
witness which should be recorded under the heading –
 54

'Questioned by the Court'

(f) The fact that provisions of AR 141(2), (3) & (4) have been complied
with must be recorded at the conclusion of each witness.

Page `E’

24. The accused must be offered a chance to make a statement vide AR 118. If
he declines to make a statement this fact should be recorded on this page. No oath
shall be administered to the accused before he proceeds to make a statement. The
Court should not question the accused regarding his statement with a view to
strengthen the case of the prosecution. It may do so with a view to supplement the
defence and to enable him to explain any circumstances in the evidence against him
which, if unexplained, may lead to his conviction. (See Instructions to the court on
Page `E’ and Note 3 to AR 58).

Page `F’

25. Evidence of defence witnesses, if any, should be recorded on this page. Such
witnesses may be cross-examined by the court and re-examined by the accused, if
considered necessary. Compliance of AR 141(2), (3) & (4) should be recorded at the
conclusion of each witness.

Page `G’

26. This page is to be used for recording evidence of such witnesses, whom the
court may consider necessary to call in reply/ rebuttal of new facts which were
introduced during the defence evidence for the first time and which could not have
been reasonably foreseen by the prosecution. (See AR 119 and Notes thereto).

Page ‘H’

27. If the Court finds the accused not guilty of the charge(s), the verdict shall be
recorded on page 'H'. The Court shall sign the proceedings on this page and the trial
shall conclude(see AR 120 and Note).

Page I

28. (a) The verdict of the Court in respect of the finding of guilty, when the trial
proceeds on plea of not guilty be recorded on this page(see AR 123 and
Note).

(b) The offences for which the accused was previously dealt with
summarily should be recorded giving the statement of offence together with
section of the AA and the punishment awarded.

(c) The character of the accused should be assessed in accordance with

RA Para 170 and initialed by the officer holding the trial. The words
satisfactory/unsatisfactory should not be used in assessing the character.
 55

(d) The period for which the accused was held in arrest or confinement
until the date of verdict be recorded in days. The day on which the trial
concluded, be excluded from reckoning.

Page 'J'

29. (a) The officer holding the trial must observe the guide lines provided in the
following references, while awarding the sentence :-

(i) AR 124.

(ii) Para 84 of Chapter IVVol I MML, 2011

(iii) RA Paras 448 and 468 and Army HQ letter No 35418/PS-1

dated 28 Nov 2000. Punishment provided in the section under which
the accused has been charged.

(iii) AAs 71 and Notes.

(b) The following guide-lines be observed while recording the sentence :-

(i) The sentence be recorded as per specimen given on Pages 428

and 429 of MML Vol II 1992 Edition.

(ii) While awarding sentence of imprisonment to an NCO the

sentence of 'To be reduced to the ranks' should also be awarded,
which should precede the sentence of imprisonment, see Note 7 (d) to
AAs 71.

(iii) The quantum of imprisonment be recorded as under :-

(aa) If awarded for one year exactly, be recorded in year.

(ab) If awarded for one month or upwards, be recorded in

months.

(ac) If consisting partly of months and partly of days, be

recorded in months and days (see Note 2 to AR 124 and Para
468 Regs for the Army, 1987).

(iv) The sentence of imprisonment, when awarded with dismissal,

should precede the sentence of dismissal.

(v) When a SCM awards a sentence of imprisonment for a period

not exceeding three months, to which no sentence of dismissal is
added, the Court should enter a direction, which should form part of the
sentence, that the imprisonment shall be carried out by confinement in
military custody, see AAs, 169(3). A sentence of imprisonment
exceeding 3 months whether accompanied by dismissal or not will be
carried out in civil prison (RA Para 494 refers).
 56

(vi) For the date a sentence of dismissal awarded by a court-martial

takes effect, see AR 168. Sentences of imprisonment combined with
dismissal should, as a rule, be carried out by confinement in a civil
prison,(see Note 4 to AR 124).

Signing of the Proceedings

30. The Court shall sign the proceedings. In case of verdict of not guilty; the Court
shall sign and date the proceedings on Page 'H', see AR 122. In case of verdict of
guilty and sentence, the Court shall sign the proceedings on Page "J". Signing of
proceedings on these Pages shall authenticate the whole of the proceedings, see AR
125. It is essential that the date of sentence should be inserted because the term of
imprisonment is reckoned to commence on the day on which the sentence and
proceedings were signed by the Court. See Note to AR 125 and AAs 167 and Note.

Promulgation

31. After conclusion of trial, the charge(s), finding(s) and sentence shall be read
out to the accused by the CO (officer holding the trial) in the presence of the accused
and senior JCO of the unit or on a parade if ordered by the CO. A certificate of
promulgation shall be recorded on Page 'J' of the proceedings as per specimen given
at 429 of MML VolII :-

32. The finding(s) and sentence of SCM is not required to be confirmed, but shall
be carried out forthwith. However, if the officer holding the trial is of less than
5years service, he shall not, except on active service, carry into effect the
sentence until it has received approval of the reviewing authority, see AAs.161
and AR 132.

Preparation and forwarding of proceedings

33. After promulgation or if the promulgation has been deferred because of AR

132, the original copy of the proceedings together with all the enclosures shall be
forwarded to the DJAG Corps/Dy JAG Command concerned who will carry out legal
scrutiny and shall forward the proceedings with his review report to an officer
authorized to deal with them in pursuance of AAs 162. The officer holding the trial
must specify in the covering letter the name of the formation under which the unit is
serving to enable the DJAG/Dy JAG concerned to forward the proceedings to the
appropriate authority.

34. Only one copy of the proceedings shall be forwarded for the legal scrutiny
together with the copies of the following documents:

(a) Record of proceedings of hearing of the charge by CO (Appx `A’

to AO 03/2018/DV). The record of hearing of the charge proceedings taken as
per Appx `A’ to AO 03/2018/DV alongwith the tenetative charge sheet
(Annexure I) and brief statement by the accused, if any (Annexure II) should be
attached in triplicate.

(b) Summary of evidence. The S of E should be attached in original as

Exhibit "1" to the proceedings.
 57

(c) Committal warrant: (Form 'B'). In case of accused person(s)

committed to civil prison, separate committal warrant 'Form ‘B' as per the
specimen given on page 449 of MML Vol II, will be forwarded to the
Superintendent of the Jail concerned intimating the period spent by the accused
in civil or military custody during the investigation, inquiry or trial and that the
said period shall be set off against the sentence of imprisonment (AAs 169-A
refers) and will also be attached to the proceedings.
(d) Competent Authorities to Grant Furlough/Parole. In order to ensure
that petitions from military prisoners for furlough and parole are not wrongly
addressed /forwarded by jail authorities, the COs while committing a prisoner to
civil jail under sentence of a court martial (including SCM) should attach to the
committal warrant on a separate sheet, a brief memo indicating the authorities
to which petitions shall be forwarded. (Auth : Army HQ letter No. 49629/AG/DV-
1 dated 13 Nov 86).
(e) Memorandum to be attached to the proceedings
(i) A self-explanatory memorandum should be attached to the
proceedings when a SCM tries without reference, offences specified in
AASs 34, 37, 69 or any offence against the officer holding the Court,
see AAs 120 and Note and AR 130 and Note.
(ii) If the accused is awarded the sentence of dismissal, the officer
holding the trial should attach a separate memorandum vide AO
309/73, giving full reasons for awarding the punishment of dismissal
and committing the accused to civil prison. Three copies of such
memorandum should be sent to the DJAG/Dy JAG with the
proceedings.
(f) Order regarding disposal of property involved in the
commission of offence. The officer holding the trial should pass orders for
the disposal of articles recovered from the individual vide AAs 151. A copy of
such orders should be attached to the proceedings.

(g) A certificate regarding investigation of man-management aspect in

respect of the cases of insubordination or violence, from the officer holding the
trial, be attached to the proceedings, in accordance with Army HQ letter No
50451/PS-1 dated 22 Apr 65.

(h) After conviction, the CO should inform the next-of-kin of the accused
giving the following details :-

(i) Offence(s) for which accused tried.

(ii) Punishment awarded; and

(iii) Name of civil prison to which the accused committed showing

the date of committal.

(j) Right to Petition. The accused should be informed that he has a right
to put up a petition against SCM award to the GOC-in-C Command in which
the trial has been held vide Army HQ letter No 49629/AG/DY-1 dated 13 Nov
86.
 58

(k) A certificate as per format given in AO 51/87, indicating supply or

otherwise of a copy of SCM proceedings to the accused in terms of AR 147
and AO 51/87 ibid should also be attached.
35. The original set of proceedings shall be forwarded to the DJAG/Dy JAG
concerned, the duplicate set will be kept as office copy and triplicate set would be
provided to the accused, in terms of AR 147 and AO 51/87.
Disposal of the proceedings
36. After countersignature of appropriate officer, the proceedings shall be
forwarded by the reviewing authority to the CO who shall take such action as has
been directed by the reviewing authority and thereafter forward the same to the
Record Officer concerned for preservation vide AR 146(2). The proceedings of a
SCM shall be preserved for not less than ten years, with the Records of the Corps or
department to which the accused belonged.

Auth : Army HQ letter No. 35418/AG/DV-1 (P) dated 01 Nov 96.

A sample form of SCM proceedings (IAFD-907) where the accused
pleaded guilty and not guilty to the charge is placed at Appx ‘M &N’
respectively.

37. Common Mistakes During Summary Court Martial (SCM)

(a) The S of E and the Charge-sheet not handed over to the accused
minimum 96 hrs (or minimum 24 hrs on active service) in advance of the date
of trial by SCM, thereby violating the principles of ‘natural justice’ which
mandates that the accused must be offered adequate opportunity to prepare
his defence. (AR 33 & 34 refers)

(b) When the offence is charged under Army Act Sec 34, 37, 69 or for an
offence against the officer holding the trial, formal prior sanction of the Bde/
equivalent Cdr not obtained as required under Army Act, Sec 120 (2).

(c) The charge framed either suffers from vagueness (lack of clarity) or
duplicity (two distinct offences charged in the single / same charge), which is
bad in law.

(d) The charge sheet not drafted with reference to the specimen charges
provided at page 382 onwards of MML – Vol II, resulting into serious
irregularities in framing of charge.

(e) The two Officers/ JCOs detailed to ‘attend’ the SCM, or one of the
either are/ is a witness to facts of the case or were / was involved in
investigation of the case, which is violation of principal of natural justice.

(f) A JCO/WO, instead of an officer, detailed as ‘Friend of the Accused’; or

the officer detailed as ‘Friend of the Accused’ was a prosecution witness
during S of E / C of I. This too is violation of principles of natural justice.
Ordinarily, an officer (and not a JCO) should be detailed as ‘Friend of the
Accused’ because JCOs do not fully comprehend the SCM proceedings which
are held in English.
 59

(g) When there are more than one charge in the charge sheet, the accused
not arraigned on each charge separately on page ‘B’ of the SCM proceedings.
(IAFD-907). Legally, it is mandatory that the accused is arraigned on each
charge (contained in charge sheet) separately

(h) Plea of accused recorded as ‘Yes’ or ‘No’, instead of as ’Guilty’ or ‘Not

Guilty’ at page ‘B’ of IAFD – 907.

(j) When the accused pleaded guilty to a charge, provisions of AR 115 (2)
not complied with in respect thereof and, even when it is complied with, the
proceedings in respect of such compliance not recorded in accordance with
AR 115 (2A) at page ‘B’ of IAFD 907. Compliance of AR 115 is a mandatory
legal requirement.

(k) The in-applicable portion of the printed form of the SCM proceedings
(IAFD-907) were not deleted under signature of the offr holding the trial;
thereby creating confusion with regard to the exact procedure followed by the
CO.

(l) The accused having pleaded ‘guilty’ to the charge, if his statement
recorded at page ‘C’ of the SCM proceeding (IAFD-907) in reference to the
charge or in mitigation of the punishment, or the S of E, negates his plea of
guilty, the said plea ought to have been changed to plea of ‘not guilty’ and
the trial should have proceeded as a ‘not-guilty’ plead trial. (AR 116 (4)
refers)

(m) The time taken in conduct of the SCM proceedings, i.e. the duration
between the time recorded as commencement of the SCM pdgs at page‘A’ of
IAFD 907 and the time recorded at page ‘J’ thereof, indicating the time of
closure of the proceedings was too short (e.g. less than 1 ½ hr in ‘plead guilty’
cases) indicating non-application of mind on the part of the officer holding the
SCM which is an incurable illegality.

Checklist

38. (a) Are the following docusatt?

(iii) Appx ‘A’ to AO 03/2018/DV :

(iv) Ch Sheet :

(v) S of E (in original) :

(vi) Exhibits in Original :

(b) Is the committal wt correctly prep :

&att? (SAO 1/S/2002/DV) (As per
Form ‘B’ on page 449 of MML)

(c) In case of dismissal has the CO given :

reasons in a separate memo? (SAO 11/2004/DV)
 60

(d) Has the accused been info of his rt to :

petition (SAO 1/S/2002/DV)? (Army HQ letter
No 49629/AG/DV-1 dt 7 Aug 81)

(e) Is a delay report reqd. If so is it att? (AR 27) :

(f) In case the ch is under AA Sec 40 (a) has :

the CO att a cert regarding man mgt?
(Army HQ letter No 50451/PSIdt 22 Apr 65).

(g) Is the offence time barred? (AA Sec 122) :

(h) Memorandum in terms of Army Rule 130 :

(j) Copy of the letter vide which info of trial :

sent to NOK.

(k) Is the cert as per Appx ‘B’ to SAO :

1/S/2002/DV Sd/- by the offr holding the
trial together with appl/receipt of the
accusedatt to the original copy of the
proceedings?

(l) Reasoned order of the CO for holding :

SCM in case he is exercising his powers under
AA Sec 120 and where the pretrial documents
are not required to be sent to DJAG/Dy JAG.
 61

CHAPTER - 10

ADMINISTRATIVE ACTION

1. Adm action is a non judicial action taken for misconduct, omission or offences
of minor nature committed by person subject to Army Act in accordance with the
policy letter, by the competent authorityas prescribed in this regard. Adm action
derive its strength from the fact that it is a matter which is regulated by the customs
of service.

2. Administrative Action: Offrs: To understand the matrix in respect

of Officers pl see the under mentioned Flow Chart :-

Kinds of Adm Action*

(Offrs)

Termination Censure
of Service Offrs incl MNS Offrs and Re-Emp Offrs
Re-Proof
Offrs Severe Displeasure Displeasure

Dismissal
Permanently recorded in Permanently recorded in
Removal dossier when awarded by dossier when awarded by
Central Govt or COAS Central Govt or COAS
Discharge

Operative for ten yrs, effective from dt Operative for ten yrs, effective from
of award when awarded by GOC-in-C dt of award when awarded by GOC-
Comd, C-in-C (Army) Andaman & in-C Comd, C-in-C (Army) Andaman
Nicobar Comd, C-in-C (Army) & Nicobar Comd, C-in-C (Army)
Strategic Forces Comd, GOC Corps, Strategic Forces Comd, GOC Corps,
Area, DG AR, DG BR, DG NCC, Area, DG AR, DG BR, DG NCC,
Comdt Cat ‘A’ Est (Not below Lt Comdt Cat ‘A’ Est (Not below Lt
Gen), Dy C-in-C (Army) Strategic Gen), Dy C-in-C (Army) Strategic
Forces Comd (Not below Lt Gen) Forces Comd (Not below Lt Gen)

* As per IHQ of MoD (Army) ADG (D&V) AG’s Br letter No 32908/AG/DV-1(P)

dt 11 Aug 2017
 62

3. Administrative Action: JCOs/WO/OR:To understand the matrix in

respect of JCOs/WO/OR pl see the under mentioned Flow Chart :-

Kinds of
Adm Action*
Re-Proof
(Awarded to JCOs,
WO & ORs)
Termination Censure
of Service (JCOs)

JCOs/OR
Severe Displeasure Severe Displeasure Displeasure
(Recordable) (Non –Recordable)
Dismissal

Not Recorded Permanently recorded in

Permanently recorded in the
Removal in the Dossier the Dossier when
Dossier when awarded by
awarded by Central Govt
Central Govt or COAS .

Discharge

Operable for three yrs from the date Not Recorded in the Dossier when
of award when awarded by COAS, awarded by COAS, GOC-in-C Comd,
GOC-in-C Comd, C-in-C (Army) C-in-C (Army) Andaman & Nicobar
Andaman & Nicobar Comd, Comd, Strategic Forces Comd, GOC
Strategic Forces Comd, GOC Corps, Corps, GOC, HQ Area, DGAR,
GOC, HQ Area, DGAR, DGBR, DGBR, DGNCC, Comdt Cat ‘A’ Est
DGNCC, Comdt Cat ‘A’ Est (not (not below Lt Gen) Dy C-in-C (Army)
below Lt Gen) Dy C-in-C (Army) Strategic Forces Comd (not below Lt
Strategic Forces Comd (not below Lt Gen), GOC Div/GOC, Sub Area,
Gen), GOC Div/GOC, Sub Area, Comdt Cat ‘A’ Est (Not below Maj
Comdt Cat ‘A’ Est (Not below Maj Gen), GOC HQ CIF, IGSFF,
Gen), GOC HQ CIF, IGSFF, Inspector Gen Assam Rifles, CSO
Inspector Gen Assam Rifles, CSO (Land Vector), Strategic Forces Comd
(Land Vector), Strategic Forces (not below Maj Gen)
Comd (not below Maj Gen)

* As per IHQ of MoD (Army) ADG (D&V) AG’s Br letter No 32908/AG/DV-1(P) dt

23 Apr 2007, 22 Mar 2016 and 11 May 2017
 63

4. Illustrative Cases which may be Disposed off through Censure

(a) Lapses showing carelessness or insensitivity or casual attitude in

dealing with service personnel or civilians or Govt or regimental property.

(b) Deliberate delay in rendition of reports or returns or confidential reports

or parawise comments etc or in handling/processing of such documents.

(c) Irregularities in use of manpower and stores which do not amount to

loss to the state.

(d) Loss of identity card by officers above the rank of Major.

(f) Delay in vacation of service or hired accommodation.

(f) Negligent / intentional delay in dealing with complains/ petitions of

service personnel.

(g) Carelessness in dealing with court cases and non compliance of time
bound court orders.

5. Competent authorities and Operability of Censures: OffrsThe auths

competent to award censure, the type of censure that can be awarded and its
operability are given below :-

(a) Reproof The authorities to award 'Reproof' manner of

administering the same and the application of mind to the case before award
of Reproof has been laid down in Para 327, Regulation of the Army (Revised
Edition) 1987.

(b) Displeasure/ Severe Displeasure. The authority to award censure,

the type of censure that can be awarded and its operative duration are given
below :-

Authorities who can Types of Censure Recording and validity

award censure that can be awarded
(1) (2) (3)
(a) Central (i) Severe Displeasure Permanently Recorded in the
Government Dossier
(ii) Displeasure Permanently Recorded in the
Dossier
(b) COAS (i) Severe Displeasure Permanently Recorded in the
Dossier
(ii) Displeasure Permanently Recorded in the
Dossier
(c) GOC-in-C Comd, (i) Severe Displeasure Operative for ten years,
C-in-C (Army) effective from date of award
Andaman & Nicobar (ii) Displeasure Operative for ten years,
Comd, and C-in-C effective from date of award
(Army) Strategic
Forces Comd
 64

GOC Corps, GOC (i) Severe Displeasure Operative for ten years,
Area, DG AR, DG effective from date of award
BR, DG NCC, (ii) Displeasure Operative for ten years,
Commandant Cat 'A' effective from date of award
Est (not Below Lt
Gen), Dy C-in-C
(Army) Strategic
Forces Comd (not
below Lt Gen)

6. Competent authorities and Operability of Censures : JCOS/WO/OR

The auths competent to award censure, the type of censure that can be awarded and
its operability are given below :-

Authorities who Types of Censure Persons Recording and validity

can award censure that can be to whom
awarded awarded
(1) (2) (3) (4)
(a) Central (i) Severe- JCOs Permanently recorded in
Government Displeasure Dossier
(ii) Displeasure JCOs -do –
(b) COAS (i) Severe- JCOs Permanently recorded in
Displeasure the Dossier
(ii) Displeasure JCOs Not recorded in Dossier.
(c) GOC-in-C Comd (i) Severe- JCOs Operable for three yrs
and C-in-C (Army) Displeasure from the date of Award.
Andaman & Nicobar (recordable) The censure will be
Comd, Strategic removed from the
Forces Comd dossier on completion of
the Award.
(ii) Severe- JCOs Not recorded in the
Displeasure (Non- Dossier.
recordable)
(iii) Displeasure JCOs - do -
(d) GOC Corps, (i) Severe- JCOs Operable for three yrs
GOC, HQ Area, Displeasure from the date of Award.
DGAR, DGBR, (recordable) Censure will be removed
DGNCC, Comdt Cat from dossier on
‘A’ Est (not below Lt completion of the
Gen) Dy C-in-C operable period.
(Army) Strategic (ii) Severe- JCOs Not recorded in Dossier.
Forces Comd (not Displeasure (Non-
below Lt Gen) recordable)

(iii) Displeasure JCOs - do -

(e) GOC Div/GOC, (i) Severe- JCOs Recorded for three yrs in
Sub Area, Comdt Displeasure the dossier. The
Cat ‘A’ Est (Not (recordable) censure will be removed
below Maj Gen GOC from Dossier on
HQ CIF, IGSFF, completion of three yrs
 65

Inspector Gen from the date of award

Assam Rifles, CSO
(Land Vector), (ii) Severe- JCOs Not recorded in the
Strategic Forces Displeasure (Non- Dossier.
Comd (not below recordable)
Maj Gen)
(iii) Displeasure JCOs Not recorded in the
Dossier
## An officiating incumbent with the rank lower than the actual incumbent (not
below Maj Gen) can also award censure.

If the offr to whom Censure is being awarded is of equivalent rank to offg

incumbent, matter should be reported to higher authority.

7. Procedure for award of Censure

(a) Once direction has been given by competent auth for Adm action on the
basis of C of I or any other material placed before the competent auth then
competent auth shall obtained explanation from concerned offr/JCO regarding
his/her response/vindication of his stand is respect of the alleged left.

(b) SCN shall emanate from/on behalf of the auth which has approved and
whose censure is proposed to be awarded.

(c) SCN must be first approved from the competent auth provided in para 6
of the policy letter and thereafter be issued by staff offr for competent auth.

8. SHOW CAUSE NOTICE (SCN) :-

(a)Obligatory before award of Censure.

(b) Must be by or on behalf of auth whose censure is proposed to be

awarded.

(c)Must contain definite/specific lapses in unambiguous term to which

explanation sought.

(d)May be on the basis of C of I or otherwise.

(e)Copy of C of I or incriminating material to be supplied alongwith SCN.
(f) Specify time limit (not more than 30 days ordinarily) and caution of ex-
parte action if reply not submitted by stipulated date.

9. SERVICE OF SCN :-

(a) If still serving in the same Command, SCN to be served directly through
the `CO’ under info to all concerned incl command HQ.
(b) If moved out to different command, SCN to be served directly through
the `CO’ with copy to concerned Command HQs and own Command HQ etc.
(c)If moved out to a foreign mission, matter to be ref to AG/DV Br AHQ.
 66

10.SUBMISSION OF REPLY TO SCN :-

(a) If still serving in same Command, reply to be submitted through the `CO’ and
process with comments/ recommendations of Cdrs in Chain.

(b). If since moved out to different Command, `CO’ of new unit to fwd the
reply directly to originator of `SCN’. No comments to be made by the new
unit/fmn
(c) On receipt of reply, comments of Cdrs in chain where the incident
occurred be obtained.
11. Service of Censure Order
(a) If still in same Command, to be served through the chain of Command.
(b) If moved out to different Command, to be served through the Command
HQ concerned.
(c) If moved out to a foreign mission, to be served through AG/DV AHQ.
 67

SpecimenNo. 1
(When show cause notice is to be signed by a staff offr for the competent authority)

SHOW CAUSE NOTICE

1. A Court of Inquiry was held to investigate into the circumstances ……….

(mention the terms of reference of the C of I as given in the Convening Order……..).
Proceedings of the said Court of Inquiry were placed before the General Officer
Commanding Corps who, on perusal thereof, is prima facie of the opinion that you
are liable to be blamed for the following acts of omission/commission :-
(i) …………….
(ii) …………….
(iii) …………….

2. The General Officer Commanding has directed the undersigned to call upon
you to show cause as to why a censure, in appropriate form, of the said General
Officer Commanding should not be awarded to you for the aforesaid acts of
omission/commission on your part.

3. Accordingly, please accept this notice and show causes as to why a

censure, in appropriate form, of the said General Officer Commanding should not be
awarded to you for your aforesaid acts of omission/commission.

4. Your reply must be submitted through your Commanding Officer within ____
days of receipt of this Show-Cause Notice, failing which it shall be assumed that your
have nothing to urge against the proposed action and an exparte decision will be
taken.

5. A copy of the relevant extracts of the Court of Inquiry proceedings

comprising pages _____ to ____ are enclosed herewith to enable you formulate your
defence, if any.

Name :
Colonel :
Col `A’/DV
For General Officer Commanding
_____ Corps/Division
 68

Specimen No. 2

(When the competent authority himself signs the show cause notice )
To
No…………..
Rank……………Name…………….
Unit……………………………

SHOW CAUSE NOTICE

1. A Court of Inquiry was held to investigate into the circumstances ………….(write

the terms of reference of the C of I as mentioned in the Convening Order……..). On
perusal of the said Court of Inquiry proceedings, I am prima facie of the opinion that
you are liable to be blamed for the following acts of omission/commission :-

(a)…………….
(b) …………….
(c) …………….

2. I am further prima facie of the opinion that you are liable to be censured in
appropriate form, for the aforesaid acts of omission/commission on your part.
3. Therefore, I hereby call upon you to show cause as to why my censure in an
appropriate form should not be awarded to you for your above mentioned acts of
omission/commission.

4. You should submit your reply to this Show Cause Notice, through your
Commanding Officer, within ____ days of its receipt, failing which it shall be assumed
that you have nothing to urge against the proposed action and an expert decision will
be taken.

5. Relevant extracts of the Court of Inquiry proceedings, comprising pages ___ to

____, are endorsed herewith to enable you formulate your defence, if any.

Name :
Rank :
General Officer Commanding
____Corps/Division
 69

Specimen

CENSURE ORDER

1. I have carefully considered the reply dated _____ to the Show Cause Notice
submitted by _______________ (write No, Rank, Name and Unit of the delinquent)
_______ in the light of the evidence contained in the Court of Inquiry proceedings.

2. I am not *satisfied/fully satisfied with the said reply. Having so considered

the *Officer’s/Junior Commissioned Officer’s reply in light of the evidence on record,
I find that * he/she is blameworthy for the following acts of omission/commission.

(a) ………………….
(b) …………………..
(c) ……………………

3. I, therefore, direct that my “Severe Displeasure *(recordable/non-recordable)”

be conveyed to No. ________ Rank _______ Name _________ _________ Unit
______________.

Place : Name :
Rank :
Date : General Officer Commanding
___ Corps/Division
 70

12. Persons to whom Censure cannot be Awarded

(a)WOs/NCOs/OR

(b) Persons belonging to Navy/Air Force.

(c) Civ employees.

(d) Members of Court of Inquiry Courts Martial (in formulation of their

opinion).

(e) Officers holding SCM – may be awarded censure for proven

malafide/culpable negligence.

13. Mehtod of Recording Censure

Officers

(i) In case of Col & below, copy of Censure Order (recordable)

&SCNduly signed by the affected Offr - to be fwd to MS-4CR, under
intimation to D&V Dte, Army HQ.

(ii) In case of Brig & above, copy of Censure Order (recordable)

to befwd to MS(X) under intimation to D&V Dte, Army HQ.

(iii) No copy of non-recordable censure required to be fwd to MS Br

JCOs

(i) Two copies of Censure Order to be fwd to unit of JCO.

(ii) Unit to ensure one copy is att to IAFF-3013 (Field Conduct

Sheet)and othercopy sent to Record Office concerned.
14.Redressal of Grievances against Censure
(a) Complaints to be processed in terms of Para 364 of RA.
(b) Auth superior to one awarding the censure may cancel, remit or
commute the censure if considered to be illegal, unjust or excessive.
(c) Date from which such order to be effective - must be averred in the
order.

15. Points to Ponder

(a) When indl refuses to accept or ack the SCN/ Censure Order, fact should
be published in unit Pt-I Orders.
(b) If no reply submitted within stipulated period, fact to be communicated
through op-immediate signal to the originator of SCN with info to all
concerned.
(c) Once decision taken to award Censure, same be intimated through op-
immediate sigs to AG-DV Br, MS Br (CR) MS-X and Control Group at AHQ.
 71

16. Important Refrence

Union of India Vs Brig J S Sivia (Mil LJ 1996 SC 3)
(a) Held -- Award of censure recognised by customs of service – not
governed by any Rules or Regulations –Hence binding and legal.
Lt Col Panjwani Vs Union of India (Delhi HC Judgment dated 09 March 1987
in CWP No. 160/83)
(b) Held – The censure order must conform to the lapses mentioned in
the SCN.

17. Adm termination of service of Offrs.

(IHQ of MoD (Army) letter No. 48931/AG/DV-1 (P) dated 03 Sep 2003).

18. Comprehensive policy on award of censure : Offrs.

(IHQ of MoD (Army) letter No. 32508/AG/Dv-1(P) dated 11 Aug 2017)
19. Comprehensive policy on award of censure : JCOs.
(IHQ of MoD (Army) letter No. 32508/AG/Dv-1(P) dated 23 Apr 2007, 22 Mar 2016
and 11 May 2017.)
20. Effect of Readable Censure on PROMOTION of JCO/OR.
(IHQ of MoD (Army) letter No. B/33513/AG/PS2 (c) dated 10 Oct 1997 (Para 3(c))
21. Adm action taken on the basis of Court of Inquiry which is
unsustainable.
(IHQ of MoD (Army) letter 46440/AG/DV-1(P) dated 15 Dec 2000).
22. Once the Offr/JCO has replied to SCN, the course of action can not be
changed to disciplinary action.
(IHQ of MoD (Army) No. 32908/AG/DV-1 dated 11 May 1993).
23. Use of criminal force to subordinate not to be disposed of by
administrative censure
(IHQ of MOD (Army) No. 50451/AG/DV-1 01 Aug 1981).

24. Re-Proof

(a) RA Para 327 deals with the administration of re-proofs. A re-proof can
be in the form of a censure or warning. It is awarded in cases where
disciplinary action is not considered expedient or necessary. A re-proof
should not be administered in the presence of subordinates unless it is
necessary for the purpose of making an example. It should be directed to the
actual fault committed and the language used should not be intemperate or
offensive.

(b)Thus, it follows from above that Reproof :-

(i) May be verbal or in writing or both.

(ii) Be directed to actual fault.

(iii) No intemperate or offensive language to be used.

(iv) Awardable by `CO’ or offr superior in comd.

.
 72

(v) Not recorded in service docu.

(vi) Competent auth must apply mind before deciding to dispose of

case through `reproof’.
(vii)Closure of case by award of censure becomes final – cannot be re-
opened.
 73

CHAPTER- 11

DV BAN

1. No individual against whom a disciplinary case is pending should be posted

away from his unit/formation until disposal of the disciplinary cases against him.
However, this may be permitted due to administrative expediency with prior approval
of DV Directorate, AG's Branch, Army Headquarters.

Meaning

2. It is a temp Ban on service benefits e.g. Promotion, study leave, honours,

awards etc. Which is an attempt to strike a balance between career matters of the
offr concerned on the one hand and organisational interests on the other. The
purpose of this Ban is to freeze the status of an offr during period between
cognizance of offence and disposal of the case.

Imposition of DV Ban

3 Itis imposedunder the auth of COAS and given by the DG(Discp) for the offrs
of the rank of Col and below- and by the Adjut Gen for the Offrs of the rank of Brig
and above. The minimum duration to be lifted on the promulgation of CM
proceedings & delivery of proceedings of CM & ST proceedings at DV Dte and in
case of Adm action, once copy of order of award of censure/ adm action is received
by DV Dte(DV-2). The said imposition is done when competent disciplinary authority
takes cognizance of the offence, as under mentioned :-

(a) C of I- when directions are issued

(b) Adm Action- on issue of SCN

(c) In CBI cases- when competent auth accords approval to progress the
case to MoD for prosecution of an offr by CBI in civil court.

(d) In criminal case- when charge sheet has been filed in court.

Types

4. DV Ban Type ‘A’- Adm action cases.

5. DV Ban Type ‘C’- when case of offr has been transferred to court under sec
125.

6. DV Ban Type ‘Cl’- when competent authority accords approval for

prosecution of offr by CBI.
 74

7. DV Ban Type ‘Cll’- when cognizance of an offence is taken by Civil/criminal

court after charge sheet has been filed.

8. DV Ban Type ‘D’-when directions has been issued to initiate disciplinary

action.

9. DV Ban Type ‘T’-where approval of COAS has accorded sanction for

termination of services administratively.

10. DV Ban Type ‘S’-where suspension of the offr has been reported to IHQ of
MoD.

11. DV Ban Type ‘DR’- when an offr is declared as deserter.

Scope

12. The basic scope to impose the said DV Ban :-

(a) Posting to sensitive appointments.

(b) Promotion(substantive, acting).

(c) Premature retirement, release, acceptance of resignation Study leave.

(d) Nomination on foreign assignment.

(e) Nomination on foreign & career courses by selection.

(f) Honours and awards.

(g) Pension

(h) Deputations.

(j) Visit to foreign countries.

(k) Re-employment or extension of re- employment.

Implications

13. It is not a blanket ban and DV Clearance is obtained after the assessment is
carried out by DV Dte who assess intended career aspect change in context of
ongoing case and take a decision as to if DV ban can be lifted. The implication after
the DV Ban are as follows :-
(a) Posting-

DV Ban ‘A’- can be posted to other unit.

DV Ban ‘D’-not to be posted out.
DV Ban ‘S’- not to be posted out.
 75

(b) No promotion under any type of ban- seal cover procedure to be

followed.

(c) To be considered for Gallantry award but not for distinguished service.

Lifting of DV Ban

14. It may be lifted in following circumstance :-

(a) In cases initiated by CBI- when case has been finally disposed off by
competent Auth- non cognizable offence, 3 years elapsed, inconclusive- AG
may consider lifting.

(b) Disciplinary proceedings confirmed/not confirmed, once ink signed

copies received by AG’s Branch.

(c) In Adm action cases- on receiving copies of directions of competent

auth/ closure of the case by AG’s Branch.

(d) In cases of termination of service-when case is disposed off by

CG/COAS(in case of MNS) and offr is SOS from Army).

15. Dissemination is done by the AG’s Branch to the following :-

(a) MS Branch, Head of Arms and service, Comd HQ concerned, GAFMS

PS Dte, DGMS(Army), ADG(TA), DGQA(pers), DRDO, MPRS(O), Directorate of
standardisation & DGBR.

(b) CO of the offr is responsible to intimate DV status of an offr to next CO

under whose jurisdiction an offr under DV ban is to move.

16. DV Ban are .reviewed at IHQ of MoD(Army) and at Comd HQ level. DV Dte
are supposed to review the progress of cases of offences as per the following time
limit:
(a) Progress of Disciplinary cases-(Type ‘D’)- 6 month

(b) Progress of Adm action cases-(Type ‘A’&‘T’)- 6 month

(c) Progress of Court cases-(Type ‘C’)- 1 year

(d) Progress of CBI cases-(Type ‘C’)- 1 year

(e) Progress of suspension cases-(Type ‘S’)- 3 month

17. A report is fwd to DV Dte by all Comd HQs on cases pertaining to respective
comds in which DV ban has been imposed
 76

Points to Ponder

18. Provision of civil service jurisprudence

When an employee is due for promotion, increment etc but disciplinary

proceedings are pending against him, the findings of his entitlement to such benefit
are kept in a sealed cover to be opened after the proceeding in question is over

Stage when Sealed cover procedure is adopted- when charge sheet is filed in
court against the accused- upheld in UOI vs Jankiraman 1991 AIR2010

In UOI vs Kewal Kumar 1993 AIR 1585- Sealed cover procedure was
adopted after decision was taken by competent authority to initiate disciplinary
proceedings against accused- upheld

19. References

(a) Para 453 RA

(b) Policy letter No A/56728/AG/DV-1(P) dt 20Apr 2010

(c) Policy letter No A/56728/AG/DV-1(P) dt 27Sep 2011

 77

CHAPTER - 12

MAINTENANCE ALLOWANCE TO WIFE & CHILDREN

Maintenance

1. A person subject to AA legally & morally is reqd to maintain their wife and
children. When it is brought to the notice of competent auth that they have failed to
do so then the remittance from the pay & allce of the person to the wife or children or
both is termed as Maint Allowance i.e. an allowance provided for the maint to the
wife & children. Thus, the provision relating to grant maint is a measure of social
justice and specially enacted to protect wife & children. The provisions under the AA
gives effect to the natural and fundamental duty of a man to maintain if wife &
children so long as they are unable to maintain themselves. The provisions of the
Sec are enforceable whatever may be the personal law by which a person concerned
is governed.

Legal Provisions for grant of Maint.

2. 90. Deduction from pay and allowances of officers-The following

penal deductions may be made from the pay and allowances of an officer, that
is to say:-
(i) any sum required by order of the Central Government [or any
prescribed officer]1 to be paid for the maintenance of his wife or his
legitimate or illegitimate child or towards the cost of any relief given
by the, said Government to the said wife or child.

3. 91. Deduction from pay and allowances of persons other than

officers:-
Subject to the provisions of section 94 the following penal
deductions may be made from the pay and allowances of a
person subject to this Act other than an officer, that is to say,—

(i) any sum required by order of the Central Govt. or any

prescribed officer to be paid for the maintenance of his wife or
his legitimate or illegitimate child or towards the cost of any relief
given by the said Government to the said wife or child.

4. Purpose of this Section was to prevent any financial hardship being caused
to the wife or children by the provisions of AA Section 28 under which the pay and
allowances of a person subject to AA cannot be attached in satisfaction of any
decree of a civil court. In other words, if in a suit for maintenance or payment of
alimony a civil court grants a decree in favour of the wife or children, the amount
decreed can be deducted from the pay and allowance of a person and paid to the
wife or children under this clause. Such being the intention, deductions should not,
as a rule, be ordered under this clause or clause (i) of AA.s.91 except to give effect
to a decree for maintenance granted by a civil court.
 78

Army Rule

5. 193. Prescribed Officer under Section 90(i)and 91().—The prescribed

officer for the purpose of clause (i) of section 90 and clause (i) of section 91 shall be
the Chief of Army Staff or the officer commanding the Army.]

Authorities who can grant Maint

Central Govt.
COAS
GOC-in-C

Limitations of amount payable as Maint

6. It should not exceed 33% of the Pay & Allce. Where both child & mother are to
be maintained, it should not exceed 22% of the pay & allce in r/o wife & 5.5% of the
pay & allce in r/o each child. Where mother is not entitled to maintenance the
maintenance granted to the child should not exceed 25%. When arrears of
maintenance are been granted then it shall not increase in any one month one half of
pay & allce for that month. Sec 94

Procedure to grant Maint

7. On receipt of a request from wife she will be asked to intimate by means of

affidavit whether she is employed and if so her emoluments .She will be asked to
intimate details of any independent source of income, movable/immovable property
she may possess and any income from them. CDA (O)/PAO (OR) will be asked to
intimate the latest details of pay & allce of the indl. Details of wife/children will be
checked from unit records and in case of doubt it will be verified from DGMP (AHQ)
or concerned record offices. Each case shall be process on merits as under:-

(a) The petitioner is the legally wedded wife of the person or his legitimate
of illegitimate child.

(b) The person complaint against is neglecting to maintain the petitioner.

(c) The wife is unable to maintain herself.

(d) A show cause notice duly signed by the ‘A’ staff offr of appropriate rank
for and behalf of competent auth to sanction maint allce shall be served on the
indl under Sec 90(i) or 91(i) as the case may be.

(e) The reply of the indl shall be processed by the authorities in chain
commencing from OC of the unit. Every Cdr in chain shall render his
comments and recommendations.

(f) In case the indl moves out of the command to the different command
then entire correspondence will be transferred to the new command for further
processing the case from the stage the case already stand processed by the
previous command.
 79

(g) Case duly analysed will be put up to GOC-in-C for grant of maint
based on the total emoluments entitled to them.

(h) As main grant should not be granted to wife or children on following

grounds:-

(i) The petitioner has sufficient income/means to maintain herself

and children.

(ii) When it is proved that the wife is living in adultery.

(iii) Without sufficient cause wife refuses to live with the husband.

(iv) They are living separately by mutual constraints.

(j) Maintenance allce shall be granted from the date of application

submitted by the claimant.

(k) Prescribe auth granting the maint allce shall quantify the same in
terms of percentage which will obviate the reqmt of issuing fresh show
cause notice.

(l) Grant of maint shall be notified to the wife/children by an offr

authorized in this behalf.

Cessation of Maintenance allce

8. On attainment of age of majority in the case of a son unless he is unable to

maintain himself by reason of physical or abnormality or injury. On marriage of
Daughter. On dissolution of marriage. Death of the child or the wife. After 2018
onwards, Maint are now been granted with subject to periodical review (three years
approx from the date of grant)

REFRENCES:-

9. AA Sec 90(i), 91(i)

10. AR 193

11. AO 2/2001 Payment of Maint allowance to wife and children of Army

personnel under AA.

12. AO 3/2007/DV Payment of Maint allowance (Amendment to AO 2/2001. RA

para 532 & 533.

13. AHQ Policy letters :-

(a) Letter no 79333/AG/DV-1(p) dt 17 Oct 2003.

(b) Letter no 55216/AG/DV-1(p) dt 06 Sept 2012.

(c) Letter no 79333/56/AG/DV-1(p) dt 31 Aug 2012.

 80

CHAPTER- 13

ADJUSTMENT OF JURISICTION CRMINAL COURT AND COURT

MARTIAL

All civil offences except those specified in Army Act Sec 70 can be tried either
by court-martial or by civil court.
“Civil Offences” – means an offence which is triable by a Criminal Court.

“Criminal Court” – means a court of Ordinary Criminal Justice in any part of India.

Civil Offence Not Triable by Court Martial

A person subject to this act who commits an offence of murder against a
person not subject to Military, Naval or Air Force Law. or ; Of Culpable homicide not
amounting murder against such a person, or of rape in relation to such a person,
shall not be deemed to be guilty of an offence against this act and shall not be tried
by a Court-Martial unless he commits any of the said offences :-

While on active service, or

At any place outside India, or

At frontier post specified by the Central Government by notification in this
behalf,

Power to declare persons to be on active service

Notwithstanding anything contained in clause (I) of section 3, the Central

Government may, by notification, declare that any person or class of persons subject
to this Act shall, with reference to any area in which they may be serving or with
reference to any provisions of this Act or of any other law for the time being in force,
be deemed to be on active service within the meaning of this act. ( Ref Army Act Sec
9)
Offences under the AA which can be tried by Court-martial as well as Criminal
Court

Offence under AA Sec 40 (a) – For using Criminal Force or Assault to his superior
officer,
Offence under AA Sec 47 – For ill-treating a subordinate,

Offences under AA Sec 52 in respect of property – Theft, Dishonest,

Misappropriation, criminal breach of trust etc.
Offence under AA 53 – For extortion and corruption,

Offences under AA Sec 64 (b) – For Defiling any place of worship, intentionally
insulting religion or wounding religious feelings of any person.
 81

DUAL JURISDICTION – RIGHT TO DECIDE

Where there is a dual jurisdiction for trial in respect of service pers, the choice
initially lies with the competent military authority to decide whether an accused be
dealt with by a Court-Martial or he be handed over to the Civil authority for being
dealt with according to civil law.

Competent Military Authority (AA Sec 125 and AR 197 A)

It shall be in the discretion of the following Army Authorities to decide before

which court the proceedings shall be instituted :-

1. Officer Commanding Army, Army Corps, Division, Independent Brigade,

Brigade, Sub-Area, or Station where the accused is serving.

2. Where death has resulted from the alleged offence – Lowest competent
authority is officer commanding Division/Area/Independent Brigade.

3. In all other cases – Lowest competent authority is officer Commanding

Brigade, Sub Area or station.

GUIDELINES TO BE KEPT IN MIND WHILE EXERCISING DESCRETION UNDER

AA SEC 125.

A Soldier ought to be tried by Court Martial in the following types of cases :-

1. When Offence is committed during the course of duty.

2. When most witnesses of the case are military persons.

3. When Offence is committed in cantonment area (or near a cantonment) and

necessity of discipline demands that soldier be tried by Court Martial.

4. When classified documents essential for defence of the country are to be

examined during the trial.

5. When speedy disposal of the case is necessary for maintenance of discipline.

6. When offence is committed against a serviceman.

7. When offence is committed due to the conditions of the service. .

 82

In the circumstances enumerated below a soldier ought to be tried by Criminal

Court in the following types of cases :-
1. When Offence is committed in civil locality and witnesses of the case are also
civilians.
2. When Offence has become time barred.
3. When Offence is committed by a soldier in combination with persons who are
not subject to Army Act and it is necessary to try all the offenders jointly.
4. When Offence is committed against a civilian and in the opinion of Criminal
Court (or Central Govt.), it is advisable to the offender by Criminal Court.
5. When appropriate military authority decides that offender be tried by Criminal
Court.
6. When appropriate military authorities, well-knowing the facts of the case,
abstain from directing that the accused be tried by Court-Martial.
Criminal Courts and Court-Martial
(Adjustment of Jurisdiction) Rules, 1978
Rule – 3. Where a person subject to Armed Forces of Union is brought before a
Magistrate and Charged with an Offence having “Dual Jurisdiction” – Such
Magistrate shall neither proceed to try such person nor commit the case to the court
of Session unless –

(a) He is moved by a competent Military Authority; or

(b) He is of opinion, for reasons to be recorded that he should so proceed
or to commit without being moved by such authority.

Rule – 4

(a) Before proceeding under Rule-3 (b) the Magistrate shall give a written
notice to the CO or Competent Military authority.
(b) Until expiry of a period of 15 days from the date of service of such
notice, the Magistrate shall not –
(i) Convict or acquit the accused under Sec 252, 255 (1) (2), 256
(1) or hear him in his Defence under Section 254 of CrPC.
(ii) Frame a charge under Sec 240 (1) or 246 of CrPC.

(iii) Commit the accused for trial to the Court of Session under Sec
209 of CrPC.
(iv) Make over case for inquiry or trial under Sec 192 of CrPC.

Rule – 5. If a notice moved before the Magistrate by Army Auth under Rule
3.(subsequently for trial by Court Martial ) ,the Magistrate, if action not taken under
rule 4 before receiving such Notice Shall stay proceedings and deliver the accused
for the purpose of trial by Court Martial
 83

Rule – 6. Where within the period of 15 days or any time thereafter but before
Magistrate takes action as referred to in Rule 4.and the CO or competent military
auth gives notice to the Magistrate for trial of the accused by Court Martial, the
Magistrate shall stay proceedings and deliver the accused to Army auth for trial by
Court Martial together with statement referred to in Sec 549 (1) CrPC J&K (akin to
Sec 475 of CrPC)
Rule – 7. In case of dispute between Criminal Court and Court Martial, matter will
be referred to the Central Government and whose order will be final.
DISCRETION u/s 125 AA - INTERPRETATION
“Under Sec 125 of Army Act, 1950, discretion is given to the officer mentioned
therein to decide the question where the proceedings should be instituted. But if the
designated officer does not so exercise his discretion, it will be open to the Criminal
Court to exercise its jurisdiction as provided by law”.
(Joginder Singh Vs State of HP - AIR 1971 SC 500)
“The offence should be an offence of which cognizance can be taken by both
courts. It is intended to refer to initial jurisdiction of the two courts to take cognizance
of the case and not the jurisdiction to decide the case on merit”.
(Spl Police EstVs S K Loraiya - AIR 1952 SC 2548)& (SomDattaVs UOI - AIR
1969 SC 414)
“If a Magistrate proceeds in the matter or even Commits the case to Court of
Sessions without giving such Notice, the entire proceedings shall be void”.
(Gajendra Singh Vs State of Rajasthan - 1995 CrLJ 3347)
“Where the Naval Authority requested the Magistrate to allow the Accused to
be tried under the Naval Law, the Magistrate had no choice but to stay the
proceedings and deliver the accused to Naval Authority and there was no necessity
to record reasons there for”.
(Mangal Singh BhattiVs Union of India - 1993 CrLJ 3070 (Kerela)
“Where a Magistrate committed a case involving an Army Man (on leave) u/s
306 IPC to the session Court, the Kerla High Court held the Committal to be illegal
and quashed it an remanded the case back to the Magistrate to pass a reasoned
order in accordance with Rule 3 (b) of the Criminal Courts and Courts Martial
(Adjustment of Jurisdiction) Rule, 1978”. 1966 CrLJ 1549 (Kerela)
“Case based entirely on circumstantial evidence and involving several complicated
Questions of law should be tried by Criminal Court and not Court Martial”.
(RS BhagatVs Union Of India AIR 1981 Delhi 191)

“Discretion to be exercised by the Army Authority u/s 125 of AA cannot be

said to be unguided by any policy laid down by the Act or uncontrolled by any other
provisions”.
(Ram SaroopVs Union of India AIR 1965 SC 247)
“Offences Under ‘Official Secrets Act’ are triable both by Magistrate as well as
Court Martial”.
 84

Court Martial can try offence even when no cognizance was taken by
Magistrate. Serving notice to the Magistrate not required”.
(CaptRanaVs UOI - 1972 CrLJ (NOC) 120 Del)
“When accused is handed over by Magistrate to Military Authority, it is
mandatory for the Military Authority to communicate to the Magistrate whether the
accused has been tried by Court Martial or other effective proceedings have been
taken against him”.
(UOI Vs Maj S K Sharma - AIR 1987 SC 1878)

The stage of making opinion to try an accused by a court-martial and not by

the criminal court is after filing of the charge-sheet and before taking cognizance or
framing of the charges; General Officer Commanding v. Central Bureau of
investigation, AIR 2012 SC 1890: (2012) 6 SCC 228: JT 2012 (4) SC 510: (2012)
5 SCALE 58.

Principle laid down by the Supreme Court of India in Balbir Singh v/s Union
of India

1. When both ordinary Criminal Courts and Court Martial having Concurrent
jurisdiction to try the offence, the conflict of opinion whether accused be tried by
ordinary criminal court or Court Martial, is to be resolved by the Central Government.
2. The inherent jurisdiction under which the Criminal Courts have to take
cognizance of Civil Offences is not taken away by any of the provisions of Air Force
Act, Army Act or Section 475 of CrPC the Rules framed there under.
3. When an offence has been allegedly committed by a person in active service
of the military and both the Ordinary Criminal Courts and Courts Martial have the
concurrent jurisdiction the first option lies with the military authorities to try the
accused but if the military authorities had surrendered the accused to the ordinary
criminal courts, it will be deemed that Military Authorities had exercised its option not
to try the accused and if the accused is tried and convicted by the ordinary courts,
such a trial will not be vitiated.

Option to try a person lies with the military authorities itself and not to the
accused.
If both the courts have concurrent jurisdiction to try the offender and still the offender
after expiry of the 15 days notice, has been tried by the ordinary Criminal Courts
without any objection by the Military Authorities such trial is not vitiated. First right is
of the Military Authorities to try the offender once they express their intention to do
so. If they abdicate their rights in favour of the Ordinary Criminal Courts it is not
open to them to try and if the accused has been tried by the Ordinary Criminal Courts
without any objection from the Military Authority such a trial will not be vitiated.
(Pl ref the format draft for exercising jurisdiction or otherwise as att as
Appx ‘O’ and extract of notification issued by Govtof Jammu and Kashmir the
2nd march 1984 att at Appx ‘P’ )
 85

CHAPTER -14

ARMED FORCES SPECIAL POWERS ACT (AFSPA) AND

LAW RELATING TO COUNTER TERRORISM (CT)/COUNTER
INSURGENCY (CI) OPERATIONS
Nature of Counter Terrorism (CT)/Counter Insurgency (CI) Ops

1. Counter Terrorism (CT)/Counter Insurgency (CI) Ops are in the nature of "aid
to civil power" wherein the armed forces are deployed to fight the
terrorists/insurgency and thereby assist the civil adm to maintain public order. It is
distinctly different from the use of armed forces for dispersal of 'unlawful assembly'
i.e. assembly of five or more persons with riotous/criminal intent. The armed forces
may be requisitioned to disperse an 'unlawful assembly' at any place 1 , but
independent CT/CI ops can be conducted by the armed forces only at a place
where Armed Forces Special Power Act is in force2 .
2. It must be remembered that role of armed forces during CT/CI ops is to control
the volatile situation and bring normalcy in the state so that the civil adm may
function in accordance with the Constitution. Terrorists/insurgents are "enemy" in
terms of Army Act Sec 3 (x) which lays down that all armed rebels, armed rioters and
any person up in arms against whom it is duty of army personnel to act shall be
deemed to be an 'enemy' within the meaning of said Act.
Applicability of the International Law

3. The 'Law of War' or 'International Humanitarian Laws' ('IHL') as found in

the four 'Geneva Conventions' of 1949 and the two 'Addl Protocols' thereto, do
not apply to the terrorism/insurgency prevailing in 'J & K' and the 'North-East'. Article
1 of the Addl Protocol II, which applies to the 'armed conflicts' of non-international
character, stipulates that the rule of IHL would apply to internal strife or to a domestic
(non-international) armed conflict only if the dissidents (insurgents etc) possess an
organized mil force and have control over a part of the country's territory. Article 3,
common to all the four Geneva Conventions, lays down that for application of IHL
enshrined in the said Conventions, the insurgents must carry their arms openly and
have an authority responsible for its acts with the means of carrying out its obligation
under the Conventions. The terrorists/insurgents operating in J&K and the North-East
do not conform to these stipulations.

4. Hence, the situation prevailing in these two regions (J&K and the North East)
must not be described as 'armed conflict' or 'low intensity conflict', which are
expressions generally used to describe the situations where IHL operates. It has
always been the endeavor of the terrorists /insurgents to describe the situation in the
said two regions as such so as to lend legitimacy to their criminal acts and design.
5. The CT/CI ops are regulated and dealt with in accordance with the
Constitution and other Acts of Parliament which contain enough provisions to
guarantee and protect the 'human rights' of all citizens and non-citizens alike.

1
Sec 130-132 of the Criminal Procedure Code (CrPC)
2
Sec 3 of Armed Forces (Special Powers) Act, 1958 and Armed Forces Special Power
(J&K) Act – 1990.
 86

CT/CI Ops and the Indian Constitution

6. Maintenance of 'public order' is a state responsibility 3 . However, the

Constitution of India obliges the Central Govt to protect every state not only against
external aggressions but also internal disturbances so as to ensure its governance in
accordance with the Constitution4.
7. As per the Constitution, use/deployment of armed forces 'in aid of civil power'
of a state/union territory for maintenance of public order and determination of their
powers &liabilities during such use/deployment fall in the exclusive domain of the
Central Govt5. Therefore, the Central Govt, alone has the power to make laws and
issue executive instrs on ibid subjects.

CT/CI Ops and the Ordinary Law of the Land

8. Ordinary law of the country contains no authority for the armed forces to deal
with the terrorists/insurgents. The Criminal Procedure Code (CrPC) provides only
for dispersal of 'unlawful assembly' (i.e. the riotous mob of five or more persons) by
the armed forces 6 . The CT/CI ops carried out by the army are not necessarily
covered under the said provisions of the CrPC. Even the Unlawful Activities
(Prevention) Act, 1967, the only central enactment which presently deals with acts of
terrorism, contains no provision to empower the armed forces to carry out CT/CI
Ops.

Armed Forces Special Powers Act (AFSPA)

9. There being no provision in the ordinary law empowering the armed forces to
carry out CT/CI ops, the Parliament passed The Armed Forces (Special Powers)
Act, 1958 for the North-East, Armed Forces Special Powers (Punjab & Chandigarh)
Act, 1983 for Punjab & Chandigarh and Armed Forces (J&K) Special Powers Act,
1990 for J&K, which empower the armed forces to carry out CT/CI ops in the
respective States.

10. Barring a few minor exceptions, all the above mentioned Armed Forces
Special Powers Acts (AFSPA for short) contain similar provisions.

Application of the 'AFSPA'

11. AFSPA applies only in those areas of the concerned State/Union Territory
which have been declared "disturbed area" under a Govt Notification7. This implies
that the armed forces cannot carry out CT/CI ops on their own in an area in respect
of which such a notification has not been issued.
12. In an area not notified to be ‘disturbed area’, the armed forces may be used
only for dispersal of an 'unlawful assembly' (i.e. riotous assembly of five or more
persons) or to accompany & assist the state police/magistrate in prevention & control

3
Entry 1,List II (State List), Seventh Schedule of the Constitution.
4
Article 355 of the Constitution.
5
Entry 2, List 1 (Union List), read with Entry 1, List II (State List) and Entry 1, List III (Concurrent
List) – Seventh Schedule of the Constitution.
6
Sec 130 – 132 CrPC.
7
Sec 3 of the AFSPA
 87

of cognizable offences if so requisitioned by the police/magistrate8. Every notification

issued, declaring an area as 'disturbed', will have to be reviewed by the concerned
Govt every six months9 .
13. Most part of the state of J & K has now been declared as ‘disturbed area’
vide notification No 351 dated 10 Aug 2001. Central Govt Notification bearing SRO
No S.O. 916 (E) dt 27-11-90 and S.O. 603 (E) dt 17-9-91 declares the whole of
Assam as 'disturbed'. In addition, 20 kilometers wide belt in the State of Arunachal
Pradesh, Nagaland and Meghalaya along their borders with the State of Assam has
also been declared as 'disturbed' area. Similarly, the whole of Manipur, except a
small territory within dist of Imphal has also been declared as ‘disturbed’ vide a Govt
notification. These notifications are reviewed every six months as per Supreme Court
direction.
Powers under AFSPA during CT/CI Ops

14. In an area notified to be 'disturbed area', an Offr/JCO/WO/NCO may10 :-

(a) Stop, question to elicit info for op int and search any person suspected
of being involved in commission of cognizable offence(s).

(b) Stop and search any veh for anyone suspected to be involved in the
commission of cognizable offence(s) and/or wpns, ammunitions, expl, warlike
stores or contraband mtrl.

(c) Enter and search any dwelling house and/or premises on the orders of
an Offr/JCO/WO/NCO without a warrant to :-

(i) Arrest anyone suspected to be involved in the commission of

cognizable offence(s).
(ii) Rec person unlawfully held.

(iii) Rec arms, ammunitions, expl, war like stores, incriminating

docus and contraband mtrl.

(d) Arrest without warrant any suspect.

(e) Open fire :-

(i) In the exercise of the right of private defence11.

(ii) On the order of an Offr/JCO/WO/NCO only :-

(aa) On an assembly of five or more persons, when such an
assembly has been prohibited by law.

(ab) On persons carrying any wpn (to incl fire arm, bomb,

8
Sec 130 – 132 and Sec 37 CrPC, 1973.
9
As per Supreme Court Order in Naga Movement of Human Rights Vs UOI (AIR 1998 SC
431).
10
Sec 4 of the AFSPA. Also see Appx `A’ to HQ Eastern Command letter No.
101702/AFSPA/GS (Ops/Air) dated 02 Mar 2005.
11
Sec 100 Indian Penal Code .
 88

expl, lED, ammunitions) when carriage of such wpns has been

prohibited by law.
(f) Destroy any terrorist camp, hideout, hide, cache and dump.
(g) Interrogate the apprehendeewithout using criminal force or third
degree method to elicit info of op value, as permitted by the Supreme Court
vide its order dt 07 Aug 2001 passed in Naga Peoples Movement of Human
Right Vs UOI9.
Disposal of Apprehendees and Seized Property

15. Persons arrested (apprehendee) must be handed over to the nearest police
stn (to the place of arrest) along with an FIR giving out the details of the
circumstances occasioning the arrest, with least possible delay, which in no case
should extend beyond a period of 24 hr of the arrest excluding the journey period12.
Before handing over to the police the apprehendee must be examined by a medical
officer under a medical certificate which too should be handed over to the police
along with the apprehendee.

16. Any incriminating property/item seized should also be handed over to the
police together with the FIR. However, seized arm/amn may be retained at a
designated Ord Depot/Malkhanas on behalf of the police and approval of the trial
court (magistrate) should be subsequently obtained.

Legal Protection to Armed Forces Engaged in CT/CI Ops

17. No 'prosecution', 'suit' or 'other legal proceedings'may be instituted, except

with previous sanction of the Central Govt, for anything done or purported to be done
in exercise of powers conferred by the AFSPA 13 . Neither can a court take
cognizance of an offence alleged to have been committed by any member of the
armed forces, while acting or purportingto act in discharge of his "official duty"; nor
can he be arrested by the police for such an offence, except with the previous
sanction of the Central Govt 14 . Any proceeding launched without the due Govt
sanction would be wholly illegal15.

18. An 'act' may be said to have been done or purportedly done 'in exercise of
power'or 'in discharge of official duty', if the 'act' and the 'power/duty' have a
reasonable 'nexus' with each other. It has been held by the Supreme Court that the
provisions with regard to the protection provided under the law in this behalf are
required to be liberally construed and that any act directly or reasonably connected
with 'official duty' will indeed require the Govt sanction for prosecution or arrest etc16.

19. The real test to be applied in such cases is whether the accused when charged
can reasonably claim that the act complained of was done in discharge of official
duty or in exercise of the powers granted to him under the AFSPA. It does not

12
Sec 5 of AFSPA .
13
Sec 6 AFSPA
14
Sec 45 and Sec 197 (2), CrPC (However, the J& K CrPC does not provide for such
immunity from arrest).
15
Jaswant Singh Vs State of Punjab(AIR 1958 SC 124); BaijnathVs State of MP(AIR 1966
SC 220); State SPE, HyderabadVsKailash Chand (AIR 1980 SC 522); R BalaKrishna PillaiVsState
of Kerala (AIR 1996 SC 901).
16
SB SahaVs MS Koehar (AIR 1974 SC 184).
 89

matter if the act charged was strictly necessary for the discharge of his duty.
What is to be seen is whether the act alleged and the official duty were so
inter-related that one could reasonably postulate that it was done by the
accused in the performance of official duty, though possibly in excess of the
needs & requirements of the situation.

20. Thus in the CT/CI situations a custodial death of a suspect before being
handed over to police or bonafide arrest of an innocent person, or death of an
innocent person during a bonafide op, shall invite the protection clause, but
molestation, rape, extortion etc would not qualify to be an act done or purported to be
done in exercise of powers or in discharge of official duty.

Inquiry by State Govts

21. State Govts have no power to inquire, either through a 'Commission of
Inquiry' or 'Magisterial Inquiry', into the conduct of the armed forces personnel in
relation to anything arising out of their deployment in 'aid to civil power'. Such an
inquiry may be ordered only by the Central Govt17. In its judgment dt 23 Jun 2005,
passed in CWP No 5817/2004, Col Jagmohan Singh & Another Vs State of Assam &
Others, the Guwahati High Court has upheld this view. As per Army HQ (Policy)
letter No 46440/AG/DV-1 dt 14 May 1997, when a 'Commissionof Inquiry' is
ordered by the State Govt in such matters, the same should be challenged on the
ground of lack of jurisdiction before the concerned High Court by filing a Writ Petition.

22. As per AO 5/2009/DV, whenever it is felt necessary to co-operate with

magisterialinquiry (ordered by State Govt) by sending the service witnesses to
depose before such inquiry, prior concurrence of the Army HQ should be obtained.
Inquiry by Human Rights Commission

23. National as well as State Human Rights (HR) Commissions are debarred from
inquiring or ordering investigation into the alleged HR violations by members of the
armed forces18. The HR Commissions may only seek a 'report' from the Central
Govt but may not themselves inquire/order investigation into such matters.

Inquiry/Investigation under Orders of High Court/Supreme Court

24. However, there is no such immunity to the members of armed forces against
an inquiry/investigation ordered by a Constitutional Court (i.e High Court & Supreme
Court).

DOs & DONTs of CT/CI Ops

25. DOs & DONTs issued by Army HQ, and approved by the
SupremeCourt, are as under :-
DOs.

(a) Act only in an area declared 'Disturbed' under Sec 3 of the AFSPA Act.

17
Sec 3 of Commission of Inquiry Act, 1952.
18
Sec 19 of the Protection of Human Rights Act, 1996.
 90

(b) Ensure all ranks thoroughly understand and apply the provisions of the
AFSPA and the law on the right of private def (IPC Sec 96 to 106).

(c) Adhere to the cardinal principles of:-

(i) Min force.

(ii) Good faith.

(iii) Impartially.

(iv) Necessity.

(d) Co-opt with reps of the police in all ops as far as possible.

(e) Ensure all powers under the AFSPA, to incl opening fire, using force,
arresting persons or searching persons, vehs and/or premises is exercised
only on orders of an Offr/JCO/WO/NCO. Order such actions only when
satisfied that the same is necessary for the maint of public order.

(f) Opening of Fire/Use of Force

(i) Open fire only on orders of an Offr/JCO/WO/NCO and after due

warning. Any soldier may, however, open fire without warning in the
exercise of his right of private def.

(ii) Provide med asst to the injured.

(iii) Assist the police in the recovery of the dead/injured.

(iv) Submit report (FIR) on 'circumstances occasioning death' to the

police.

(g) Arrest of Person(s)

(i) Arrest only those persons who :-

(aa) have committed a cognizable offence.

(ab) are about to commit such an offence.

(ac) are suspected to have committed such an offence.

(ad) are members of a terrorist org (or such other org which
has been declared unlawful).

(ii) Where possible obtain a 'No Claim Cert' before termination of

each op.

(iii) Ensure med exam of the arrested person(s) before handing

over to the police.
 91

(iv) Hand over the arrested person to the nearest PS with the least
possible delay. Where owing to op exigencies the arrested person
cannot be handed over to the police within 24 h, the delay must be
justified/explained.

(v) Hand over the following docus to the police at the time of
handing over of the arrested person(s) and obtain a proper receipt:

(aa) report on 'circumstances occasioning arrest’ (FIR),

(ab) seizure memo (if applicable),

(ac) list of witnesses (less list of service witnesses),

(ad) confessional statement, if any,

(ae) med cert,

(af) handing/taking over cert.

(vii) Ensure person(s) once arrested is released only through the

police.

(h) Search of Person (s) Premises/Vehs

(i) Ensure women are searched either by women police or, in their
absence, by other women folk only.

(ii) Ensure all stores to incl arms, ammunitions, explosives, war like
stores, contraband mtrl, docusetc seized and/or rec during ops are
handed over to the police at the time of reporting the incident. Where,
for reasons of protection (security) and preservation, arms,
ammunitions and WS are retained in fmnkotes (designated
Malkhanas) and/or fmn mag, such stores will be properly marked
sealed and receipted. Cash will invariably be deposited in the Govt
treasury and a copy of the receipt handed over to the police.

(iii) Preserve carefully all case property retained with the Army in
fmnkotes/mags.

(j) Dealing with the Civ Courts

(i) Ensure that the directions of the Supreme Court/High Court and
other Courts are honored and promptly attended to.
(ii) Ensure whenever summoned by the Court that proper decorum
is maint and proper respects paid.
(iii) Ensure questions of the Court are answered politely and with
dignity.
 92

DONTs

(a) Do not use excessive force.

(b) Do not harass innocent public.

(c) Do not destroy private/public property.

(d) Do not search women without women police/women folk.
(e) Do not keep a person under custody for any period longer than the bare
necessity.
(h) Do not use physical force and/or punishment to extract info or
confessions.

(i) Do not use force against an arrested person unless he is trying to

escape.
(h) Do not release a person directly after arrest.

(j) Do not take back a person after he is once handed over to the police.

(k) Do not tamper with official records/evidence.

(l) Do not violate court orders.

 93

CHAPTER- 15

THE RIGHT TO INFORMATION ACT, 2005

Introduction

1. The RTI Act aims to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control of public
authorities, in order to promote transparency and accountability in the working of
every public authority. The Act applies to the whole of India except the State of
Jammu and Kashmir. (Sec 1)

Important Definitions

2. Some of the important terms defended under the RTI Act under Sec 2 thereof
are as follows:-

(a) Right to information accessible under this Act which is held by or

under the control of any public authority and includes the right to :-

(i) Inspection of work, documents, records;

(ii) Taking notes, extracts or certified copies of documents or

records;

(iii) Taking certified samples of material;

(iv) Obtaining information in the form of diskettes, floppies, tapes,

video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other device;.

(b) Information is defined as any material in any form, including records,

documents, memos, e-mails, opinions, advices, press releases, circulars,
orders, logbooks, contracts, reports, papers, samples, models, data material
held in any electronic form and information relating to any private body which
can be accessed by a public authority under any other law for the time being
in force;

(c) Public Authorityis defined as any authority or body or institution of

self- government established or constituted:-

(i) By or under the Constitution;

(ii) By any other law made by Parliament;

(iii) By any other law made by State Legislature;

(iv) By notification issued or order made by the appropriate

Government, and includes any—
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(aa) Body owned, controlled or substantially financed; and

(bb) Non-Government organization substantially financed,
directly or indirectly by funds provided by the appropriate
Government;
(d) Record includes

(i) Any document, manuscript and file;

(ii) Any microfilm, microfiche and facsimile copy of a document;
(iii) Any reproduction of image or images embodied in such
microfilm (whether enlarged or not); and
(iv) Any other material produced by a computer or any other device;
Public Authority Duty Bound to Maintain Records in Prescribed Manner
3. Sec 4 of the Act mandates that every Public authority shall maintain all its
records duly catalogued and indexed in a manner and the form which facilitates the
right to information under the Act and ensure that all records that are appropriate to
be computerised are, within a reasonable time and subject to availability of
resources, computerised and connected through a network all over the country on
different systems so that access to such records is facilitated. The public authorities
are bound to take steps to provide as much information suomotu to the public at
regular intervals through various means of communications, including internet, so
that the public have minimum resort to the use of RTI Act to obtain information.
Further every information shall be disseminated widely and in such form and manner
which is easily accessible to the public. The Act states that all material shall be
disseminated taking into consideration the cost effectiveness, local language and the
most effective method of communication in that local area and the information should
be easily accessible, to the extent possible in electronic format with the Central
Public Information Officer or State Public Information Officer, as the case may be,
available free or at such cost of the medium or the print cost price as may be
prescribed.

Public Information Officers (PIO)

4. As per Sec 5 of the Act every public authority shall designate as many officers
as the Public Information Officers (PIOs) in all administrative units or offices under it
as may be necessary to provide information to persons requesting for the information
under the Act. Such PIOs shall deal with requests from persons seeking information
and render reasonable assistance to the persons seeking such information. The
PIOs may seek the assistance of any other officer as he or she considers it
necessary for the proper discharge of his or her duties. Any officer, whose assistance
has been so sought is duty bound to render all assistance to the PIOs, as the case
may be, seeking his or her assistance and for the purposes of any contravention of
the provisions of this Act, such other officer whose assistance is sought shall himself
be treated as a PIO.

Method of Obtaining Information

5. As per Sec 6 of the Act, a person who desires to obtain any information under
RTI Act, shall make a request in writing or through electronic means in English or
 95

Hindi or in the official language of the area in which the application is being made,
accompanied with such fee as may be prescribed specifying the particulars of the
information sought by him or her. It should be addressed to-

(a) The PIO of the concerned public authority;

(b) The Assistant Public Information Officer (APIO), if any, who only acts
as an intermediary authority to forward the application to the PIO.

6. Any applicant making a request for information shall not be required to give
any reason for requesting the information or any other personal details except those
that may be necessary for contacting him.

Processing of Application

7. The RTI Act under Sec 7 provides that the PIOs, on receipt of a request shall,
as expeditiously as possible, and in any case within thirty days of the receipt of the
request, either provide the information on payment of such fee as may be prescribed
or reject the request for any of the reasons specified in the Act. However, where the
information sought for concerns the life or liberty of a person, the same shall be
provided within forty-eight hours of the receipt of the request. In case the PIO fails
to give decision on the request for information within the period so specified, he shall
be deemed to have refused the request.

Denial of Information

8. In cases where a request has been rejected, the PIO shall communicate to the
person making the request,—

(a) The reasons for such rejection;

(b) The period within which an appeal against such rejection may be
preferred; and

(c) The particulars of the appellate authority.

Relief to Aggrieved Applicant and Appeal

9. Any person who does not receive a decision within the time specified or is
aggrieved by a decision of the PIO may within thirty days from the expiry of such
period or from the receipt of such a decision prefer an appeal to such officer who is
senior in rank to the PIO called the First Appellate authority. Such appeal may be
admitted even after the expiry of 30 days if the appellant can satisfy such appellate
authority that some sufficient cause prevented him from filing the appeal in time.

10. A second appeal against the above decision shall lie within ninety days
from the date on which the decision should have been made or was actually
received. It shall be made to the Central Information Commission (CIC) or the
State Information Commission. However the CIC may admit the appeal even after
the expiry of 90 days if it is satisfied that the appellant was prevented by sufficient
cause from filing the appeal in time.
 96

11. Any appeal will be disposed of within thirty days of the receipt of the
appeal or within such extended period not exceeding a total of forty-five days from
the date of filing thereof, as the case may be, for reasons to be recorded in writing.
Further the decision of the CIC shall be binding.

Liability of PIOs

12. Where the CIC, at the time of deciding any complaint or appeal is of the
opinion that the PIO has, without any reasonable cause, refused to receive an
application for information or has not furnished information within the time specified
or malafidely denied the request for information or has knowingly given incorrect,
incomplete or misleading information or destroyed information which was the subject
of the request or obstructed in any manner in furnishing the information, it may
impose a penalty of Rs.250 for each day till application is received or information is
furnished so far as the total amount of such penalty does not exceed Rs.25,000/-
(Sec 20). In addition to the above penalty, suitable disciplinary action against such
officer, under the service rules applicable to him can also be ordered.

Legitimate Grounds for Denial of Information Sought

13. The following grounds have been provided under Sec 8 of the RTI Act on
which information may be denied to an applicant:-

(a) Information, disclosure of which would prejudicially affect the

sovereignty and integrity of India, the security, strategic, scientific or
economic interests of the State, relation with foreign State or lead to
incitement of an offence;

(b) Information which has been expressly forbidden to be published by any

court of law or tribunal or the disclosure of which may constitute contempt of
court;

(c) The disclosure of which would cause a breach of privilege of

Parliament or the State Legislature;

(d) Information including commercial confidence, trade secrets or

intellectual property, the disclosure of which would harm the competitive
position of a third party, unless the competent authority is satisfied that larger
public interest warrants the disclosure of such information;

(e) Information available to a person in his fiduciary relationship, unless the

competent authority is satisfied that the larger public interest warrants the
disclosure of such information;
(f) Information received in confidence from foreign Government;
(g) Information, the disclosure of which would endanger the life or physical
safety of any person or identify the source of information or assistance given
in confidence for law enforcement or security purposes;
(h) Information which would impede the process of investigation or
apprehension or prosecution of offenders;
 97

(j) Cabinet papers including records of deliberations of the Council of

Ministers, Secretaries and other officers; However the decisions of Council of
Ministers, the reasons thereof, and the material on the basis of which the
decisions were taken shall be made public after the decision has been taken,
and the matter is complete, or over:
(k) Information which relates to personal information the disclosure of
which has no relationship to any public activity or interest, or which would
cause unwarranted invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information Officer or the
appellate authority, as the case may be, is satisfied that the larger public
interest justifies the disclosure of such information.

Partial Disclosure of Information

14. Sec 10 provides that where a request for access to information is rejected on
the ground that it is in relation to information which is exempt from disclosure, then,
notwithstanding anything contained in this Act, access may be provided to that part
of the record which does not contain any information which is exempt from disclosure
under this Act and which can reasonably be severed/ separated from any part that
contains exempt information. However where such access is granted to a part of the
record, the PIO shall give a notice to the applicant, informing :-

(a) That only part of the record requested, after severance of the record
containing information which is exempt from disclosure, is being provided;
(b) The reasons for the decision, including any findings on any material
question of fact, referring to the material on which those findings were based;
(c) The name and designation of the person giving the decision;
(d) The details of the fees calculated by him or her and the amount of fee
which the applicant is required to deposit; and

(e) His or her rights with respect to review of the decision regarding non-
disclosure of part of the information, the amount of fee charged or the form of
access provided.
15. Regarding disclosure of Information with third Party (Sec 11), the Act provides
that where a PIO intends to disclose any information or record, or part thereof on a
request which relates to or has been supplied by a third party and has been treated
as confidential by that third party, he shall, within five days from the receipt of the
request, give a written notice to such third party of the request and of the fact that the
PIO intends to disclose the information or record, or part thereof. He should then
invite the third party to make a submission in writing or orally, regarding whether the
information should be disclosed, and such submission of the third party shall be kept
in view while taking a decision about disclosure of the information. The Act lays down
that except in the case of trade or commercial secrets protected by law, disclosure
may be allowed if the public interest in disclosure outweighs in importance any
possible harm or injury to the interests of such third party. Further, the PIO will, within
forty days after receipt of the request, if the third party has been given an opportunity
to make representation, make a decision as to whether or not to disclose the
information or record or part thereof and give in writing the notice of his decision to
the third party.
 98

Central Information Commission (CIC)

16. Under Sec 12 of the Act the Central Government, by notification in the Official
Gazette will constitute a body to be known as the Central Information Commission
(CIC) to exercise the powers conferred on, and to perform the functions assigned to
it under the RTI Act. Such Commission shall consist of :-

(a) The Chief Information Commissioner; and

(b) Such number of Central Information Commissioners, not exceeding

ten, as may be deemed necessary.
17. The general superintendence, direction and management of the affairs of the
CIC would vest in the Chief Information Commissioner who will be assisted by the
Information Commissioners and may exercise all such powers and do all such acts
and things which may be exercised or done by the Central Information Commission
autonomously without being subjected to directions by any other authority under this
Act. The headquarters of the CIC shall be at Delhi and it may, with the previous
approval of the Central Government, establish offices at other places in India.
18. Likewise there would also be State Information Commission (Sec 15)
constituted by the respective State Governments, by notification in the Official
Gazette. Such Commission shall consist of :-

(a) The State Chief Information Commissioner, and

(b) Such number of State Information Commissioners, not exceeding ten,

as may be deemed necessary.
Complaints Filed Before CIC

19. It is the duty of the CIC, as per Sec 18 of the RTI Act to receive and inquire
into a complaint from any person :-

(a) Who has been unable to submit a request to a PIO, either by reason
that no such officer has been appointed under RTI Act, or because the APIO
has refused to accept his or her application for information or appeal under
this Act for forwarding the same to the Central Public Information Officer or
State Public Information Officer or the Central Information Commission or the
State Information Commission, as the case may be;

(b) Who has been refused access to any information requested under this
Act;

(c) Who has not been given a response to a request for information or
access to information within the time limit specified under this Act;

(d) Who has been required to pay an amount of fee which he or she
considers unreasonable;
(e) Who believes that he or she has been given incomplete, misleading or
false information under this Act; and
(f) In respect of any other matter relating to requesting or obtaining access
to records under this Act.
 99

CIC Empowered to Make Inquiries

20. Both Commissions if satisfied that there are reasonable grounds to inquire into
the matter, may initiate an inquiry in respect thereof and during such inquiry they
have the same powers as are vested in a civil court while trying a suit under the
Code of Civil Procedure, 1908, in respect of the following matters.
Protection Of Action Taken In Good Faith

21. No suit, prosecution or other legal proceedings shall lie against any person for
anything which is in good faith done or intended to be done under RTI Act or any rule
made there under. Thus any PIO or Appellate authority would not be liable for
penalty for any action taken by them under the RTI act, in good faith without any
malafide intention.
RTI Act To Have Overriding Effect Over Other Acts
22. As per Sec.22 of the Act, the provisions of the RTI Act shall have effect
notwithstanding anything inconsistent therewith contained in the Official Secrets Act,
1923, and any other law for the time being in force or in any instrument having effect
by virtue of any law other than RTI Act.
23. Similarly, Sec. 23 of the Act provides that no court shall entertain any suit,
application or other proceeding in respect of any order made under the RTI Act and
no such order shall be called in question otherwise than by way of an appeal under
RTI Act itself.

Applicability of RTI Act to the Indian Army and Its Implementation Mechanism
24. Under Sec.24 of the RTI Act certain organizations have been exempted from
the purview of the RTI Act, however none of the three services including the Indian
Army find mention in the Schedule of the Act which specifies such exempted
organizations. Therefore, the RTI Act is very much applicable to the Indian Army.
25. In a case titled SmtVeenaKohlivs Indian army (15 corps), the Indian Army had
refused to forward certain documents relating to C of I proceedings sought by the
applicant on the ground that the C of I was conducted within the state of J&K and
that RTI Act was not applicable to the said state. However, the applicant approached
the CIC, who rejected the contention of the Army and the Army therefore approached
the Hon’ble High Court of Delhi against the said decision by the CIC. The Hon’ble
High Court upheld the decision of CIC and held that the RTI Act is concerned with
‘’who’ is the public auth and not ‘where’ is the public auth located. Thus, if the Army
has appointed a public auth, irrespective of place of location, he comes within
purview of the RTI Act.

26. A Comprehensive implementation instructions for RTI org in the Indian Army
has been issued vide IHQ of MoD (Army) letter No. A/30201/1/SD-8 dated 19 Jan
2011 which lays down the PIOs at different levels, methodology of functioning of
nodal offrs and other aspects of disposing of applications under the RTI. The same is
attached as Appx-‘Q’ to this CHAPTER. Similarly policies to be followed by the Army
in view of observations raised while disposing of applications under the Act has been
formulated vide RTI Cell letter No A/810027/RTI/Policy dt 07 Aug 2009(copy att at
Appx ‘R’).
 100

CHAPTER -16

THE ARMED FORCES TRIBUNAL

Establishment & Applicability

1. The Armed Force Tribunal (AFT) was established under the authority of the
Armed Forces Tribunal Act, 2007 wef 10 Aug 2009. The Act applies to all persons
subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1957. In
addition, the Act also applies to all ‘retired’ personnel of the Army, Navy and Air
Force and their dependants, heirs and successors in so far as it relates to their
‘service matters’ as defined in Sec 3 (o) of the Act.

Composition of the Tribunal and Its Benches

2. The Tribunal shall consist of a Chairperson who shall be a retired Judge of the
Supreme Court or a retired Chief Justice of a High Court and such number of Judicial
and Administrative Members as the Central Govt may decide. A sitting or retired
Judge of a High Court is eligible to be appointed as a Judicial Member. A serving or
retired officer from the three Services holding or having held the rank of Major
General or an equivalent rank for not less than three years, or a person who has
served for not less than one year as Judge Advocate General in any of the three
Services, would be eligible for appointment as the Administrative Member. The
Chairperson and the Members are to be appointed by the President in consultation
with the Chief Justice of India. Each Bench shall consist of two members, one
Judicial Member and one Administrative Member.
3. The Tribunal has the Principal Bench located at Delhi and other Benches as
follows:

Locations of AFTs and its Jurisdiction.

(a) Principal Bench, New Delhi.

(b) Regional Benches :-

(i) Chandigarh - (Punjab, Haryana, Jammu & Kashmir, Himachal

Pradesh and Union Territory of Chandigarh) (Circuit Bench - Shimla).

(ii) Lucknow - (Uttar Pradesh, Utharakhand, Chhattisgarh and

Madhya Pradesh) (Circuit Bench - Nainital).

(iii) Jaipur - (Rajasthan)

(iv) Kolkata- (West Bengal, Bihar, Jharkhand, Orissa and Union

Territory of Andaman & Nicobar Islands).

(v) Chennai - (Tamil Nadu, Andhra Pradesh, Telangana and Union

Territory of Ponducherry). (Circuit Bench - Hydrabad)
(vi) Kochi- (Kerala, Karnataka and Union Territory of Lakshadweep)
(Circuit Bench – Bengalore).
 101

(vii) Guwahati - (Tripura, Assam, Arunachal Pradesh, Manipur,

Mizoram, Meghalaya and Nagaland).

(viii) Mumbai - (Maharashtra, Gujarat and Goa).

(ix) Jabalpur - (Regional Bench - Jabalpur).

(x) Secunderabad - (Andhrapradesh & Telangana)

(xi) Jodhpur

Jurisdiction

4. The AFT Act provides for:

(a) Original Jurisdiction: Adjudication/ trial by AFT of disputes &

complaints arising out of service matters (e.g. commission, appointments,
enrolment and conditions of service of the service personnel)[sec-14].

(b) Appellate Jurisdiction: Hearing appeals against the orders/ findings

sentence of courts- martial & connected/ incidental matters [sec 15–17].

(c) Contempt Jurisdiction (criminal): to punish for own contempt

[sec-19].

(d) Bail Juridiction: pre-conviction [sec 15 (3)].

5. It functions as a civil court while exercising its original jurisdiction and as a

criminal court while exercising the appellate jurisdiction.

Original Jurisdiction (in Service Matters)

6. In exercise of its original jurisdiction the Tribunal has all the powers and
authority exercisable by a civil court except the Supreme Court and a High Court
exercising jurisdiction under Article 226 and 227 of the Constitution. The term
‘service matters’ has been defined in Sec 3 (o) to mean all matters relating to
conditions of service including pay and allowances, pension, commission,
appointment, enrolment, promotion, seniority, penal deduction, retirement,
termination of service and summary trials where punishment of dismissal has been
awarded etc. A person aggrieved by an order pertaining to any service matter may
make an application in the form as prescribed under the rules made under the Act to
the Tribunal on payment of fee of Rs 250/- in the form of Demand Draft drawn on a
nationalized bank in favour of the Registrar of the Tribunal. On receipt of the
application the Tribunal shall, if satisfied after due inquiry as it may deem necessary
that it is a fit case for adjudication by it, admit such application; but where the
Tribunal is not so satisfied it may dismiss the application after recording reasons. It
has the power to decide questions of law as well as facts. The Tribunal also has the
power to review its decision once.
 102

Conditions Precedent for Exercise of Original Jurisdiction

7. Sec 21 of the Act stipulates that the Tribunal shall not ordinarily admit an
‘application’ unless the applicant has availed the alternative remedies available
under the respective Service Act or the rules and regulations made there under. The
appellant shall be deemed to have availed the alternative remedies when the final
order is passed by the competent authority on his petition / representation or on
expiry of six months from the date the petition / representation was made, whichever
is earlier. Sec 27 of the Act lays down a limitation period for the Tribunal to exercise
its original jurisdiction. The Tribunal shall not admit an application after six months of
the final order having been passed by the competent authority on the applicant's
petition / representation, or when no such order has been passed, after one year of
the date of the petition / representation having been made. With respect to the old
cases, i.e. the cases in which the cause of action arose prior to the date of
establishment of the Tribunal, the stipulated period of limitation is three years
immediately preceding the said date. However, the Tribunal has the power to waive
the limitation period and condone the delay in appropriate cases if sufficient cause is
shown.
Appellate Jurisdiction
8. An appeal against any order, decision, finding or sentence passed by a court-
martial or any matter connected therewith or incidental thereto would lie to the
Tribunal as a matter of right. In other words, unlike in the case of original
jurisdiction, the Tribunal has no power to dismiss an appeal at the admission stage
itself. Any person aggrieved by the order, decision, finding or sentence of a court-
martial may prefer the appeal in the form prescribed in the Armed Forces
(Procedure) Rules, 2008. The Tribunal has power to allow any appeal and set aside
the conviction if in its opinion the same is illegal or involves wrong decision on a
question of law, or there has been material irregularity in the course of trial resulting
in miscarriage of justice. The Tribunal has been given all the powers of an appellate
criminal court including the power to substitute the finding of a court-martial, arrive
at special finding, to remit, mitigate, commute, enhance or suspend the sentence
awarded by the court-martial and release the appellant on parole and pass any other
orders as it may think appropriate. It may also order re-trial of the appellant in cases
where it sets aside the conviction only for reasons of evidence received or available
to be received. Right to appeal against court martial verdicts rests only with the
convict and not with the prosecuting agencies or the Govt. While hearing and
deciding appeals, the Tribunal has the power to take or receive evidence or
documents, obtain reports from a court-martial, order reference of any question for
enquiry, appoint a person to act as assessor and determine any question of law or
fact necessary to do justice in the case.
Matters on which AFT has No Jurisdiction
9. AFT has no jurisdiction on the following:-
(a) Summary Court Martial (SCM) wherein sentence lower in scale than
dismissal and / or RI for not more than 3 months has been awarded. This
means an OR who has been sentenced by SCM to less than dismissal or
not more than 3 months RI cannot file a case in the AFT for redressal against
the SCM award the SCM award.
 103

(b) An Offr/JCO/OR tried summarily under AA Sec 83, 84, 85 or 80 is

barred to approach the AFT for redressal of any grievance relating to the
summary punishment.
(c) Leave including the Study leave is also outside the jurisdiction of AFT.
This means a person subject to Army Act cannot approach AFT against denial
of leave.
(d) Posting and transfers, including foreign / UN assignments are outside
the AFT’s jurisdiction.
(e) Termination of service under the ‘Presidential pleasure’.

Power to Grant Bail

10. The Tribunal has been empowered to grant bail to any accused person
detained in military custody except when the person is accused of an offence
punishable with death or life imprisonment. However, there is no provision in the Act
for grant of ‘anticipatory bail’ as envisaged under Sec 438 of the Cr PC. Pertinently,
though the bail provisions are contained in Sec 15 of the Act which relates to the
Tribunal’s jurisdiction in matters of appeal against verdicts of court- martial, yet the
Tribunal has no power to grant bail to a person convicted by court-martial. In other
words, the Tribunal may grant bail only to ‘accused’ person held in military custody
during the pre-trial or the trial stage. However, with respect to prisoners sentenced
by courts- martial and held in military custody or committed to civil jail, the Tribunal
has power to grant ‘parole’ or suspend the sentence.

Power to Punish for Its Own Contempt

11. The Tribunal has power to try and punish any person who is guilty of criminal
contempt of the Tribunal by using any insulting or threatening language or causing
interruption or disturbance in the proceedings of the Tribunal. A person found guilty
of such contempt may be punished upto three years of imprisonment. Appeal against
any orders, sentence or decision of the Tribunal passed in exercise of its contempt
jurisdiction will lie to the Supreme Court as a matter of right within sixty days from
date of the order or sentence, as the case may be. It may be pertinent to note here
that the Act gives no power to the Tribunal to punish for ‘civil contempt’. As a result,
it hardly has any effective means to enforce compliance or execution of its orders,
though Sec 29 of the Act provides that the Tribunal’s order disposing off an
application shall be final and shall not be called in question in any court and shall be
executed.

Power to Grant Injunction or Stay

12. While exercising its original or appellate jurisdiction, the Tribunal has power to
pass interim order, either by way of injunction or stay or in any other manner.
However, no such interim order may be made without supplying to the opposite party
copies of the application or appeal, as the case may be, together with all other
documents supporting the plea for interim order and affording an opportunity of
hearing to the opposite party. In exceptional cases of urgent nature, in order to
prevent any loss being caused to the applicant or appellant, the Tribunal may
dispense with the requirement of supplying aforementioned documents and the
opportunity of hearing for reasons to be recorded in writing. Provided that, in such an
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eventuality, if the opposite party applies for vacation of the interim order so passed,
then the Tribunal is obliged to dispose off the application within a period of fourteen
days of its receipt and if the application is not so disposed off the interim order
passed shall stand automatically vacated on expiry of the said period.

In civil Appeal no 2229 of 2020 SLP(C) no.18853 0f 2017 Union of India

and Ans VS R Thiyagaragan it is held that the powers of High Courts under Art
226 for exercising the writ jurisdiction on the orders of AFT are discretionary
with a limitation to check the decision making process. Appeal to that order
will however lie with the Supreme Court.

Further in another Civil Appeal no 13/2020 SLP NO 6999/2017 Balkrishna

Ram VS UOI and ANRS it is held that the case already decided by the single
judge of High Court shall not be transferred under Sec 34 of the AFT Act to the
AFT for adjudicating over its Later Patent Appeal (LPA) as the power rest with
the respective High Courts only.

Exclusion of Jurisdiction and Transfer of Pending Cases

13. As per Sec 34 of the Act, after establishment of the Tribunal, no civil court
shall exercise any jurisdiction, power or authority in relation to ‘service matters’ on
which the Tribunal shall have the sole authority to adjudicate. All suits or ‘other
proceedings pending before any court including the High Courts, or any other
authority relating to a ‘service matters’ in which the Tribunal has the jurisdiction
shall stand transferred to the Tribunal along with the records thereof from the date of
its establishment. On receipt of such records, the Tribunal shall deal with such cases
as ‘applications’ under Sec 14 (2) of the Act, i.e. as ‘service matters’. The term
‘other proceedings’ appearing in Sec 34 of the Act does not include ‘writ petitions’ or
‘writ appeals’ pending in a High Court. However, going by the well settled judicial
principle of ‘alternative remedies’ applied in exercise of writ jurisdiction, ordinarily a
High Court should also transfer the pending writ petition cases for adjudication by
the Tribunal. On the same principal, the High Courts should ordinarily refrain from
entertaining writ petitions on matters which fall within the jurisdiction of the Tribunal.
It may however be noted that as already held by the apex court in the case of L
Chandra KumarVs UOI & Others, Tribunals established under various statutes
cannot supplant jurisdiction of High Courts under Art 226 of the Constitution. The
same is reiterated in Sec 14 (1) of the Act which lays down that Tribunal established
under the Act shall have all the jurisdiction, power and authority exercisable by all the
courts except those of the Supreme Court and High Court under Article 226 and 227
of the Constitution and appeal from the orders of the AFT lies in the Supreme Court.

Appeals against Verdicts of the Tribunal

14. Appeals against the final order of the Tribunal lies directly to the Supreme
Court within ninety days of the order (UOI vsMaj Gen SrikantJha and Others).
However, no appeal can be filed against an interim order of the Tribunal unless the
order itself is in shape of grant of Final Relief. But, no appeal may be filed unless
leave of the Tribunal has been obtained certifying that a point of law of general
public importance is involved in the decision or unless the Supreme Court is of the
view that the point is one which ought to be decided by it ( UOI vs Brig PS Gill). The
application to seek the leave of the Tribunal may be filed within thirty days of the
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decision of the Tribunal and the application to seek the leave of the Supreme Court
may be filed within thirty days of the leave being refused by the Tribunal. The
Supreme Court, and not the Tribunal, has the power to condone the delay and
extend the aforesaid period of limitation for preferring the appeal and the application
seeking the leave to appeal.

Miscellaneous

15. Sec 25 (2) of the Act empowers the Central Govt or a prescribed authority to
authorize any of its ‘law officers’, besides any legal practioners, to act as counsel for
the Govt before the Tribunal. This provision may be used to designate the JAG
Department officers posted with various Legal Cells as the ‘law officers’ to appear
and present the case on behalf of the Govt before the Tribunal. To cut down delaysin
disposal of the cases, Sec 23 (2) of the Act stipulates that no adjournment shall be
granted by the Tribunal without recording justifiable reasons and that cost shall be
awarded against a party seeking adjournmentmore that twice. Another significant
feature of the Act is that its provisions have been given overriding effect over all other
laws for the time being in force.

Appeal Against Interlocutory Orders of Courts Martial

16. Sec 15 of the Act allows an appeal to be filed against not only the findings and
sentence but also every ‘order’ and ‘decision’ of a court-martial or the matters
incidental thereto or connected therewith. Sec 17 empowers the Tribunal inter-alia to
obtain reports from court-martial and order reference of any question for inquiry.
Under Sec 26 the Tribunal has the power to pass interim order including an
injunction or a stay order against court-martial proceedings. It means that an appeal
may be filed before the Tribunal against an order passed by a court-martial or an
authority at any stage of the trial or the disciplinary proceedings and a stay against
the disciplinary or court-martial proceedings may be obtained. On the other hand, the
right to appeal from the Tribunal to the Supreme Court is available only against the
final orders or decisions of the Tribunal and not against interim orders. Promptness
and expediency being the hallmark of military justice system, anticipated delay in
court-martial proceeding due to stay granted by the Tribunal may become counter-
productive. Though it is expected that the Tribunal would exercise due restraint in
granting stay against the court-martial proceedings, but being such an important
issue it ought not to have been left entirely to the discretion of the individual
Members of the Tribunal. It should have been clearly provided that the appeal to the
Tribunal would lie only against the final orders, after confirmation of the court-martial
proceedings or alternatively a mandatory time limit should have been prescribed for
final disposal of the cases by the Tribunal where a stay has been granted against the
court-martial or disciplinary proceedings.

AFT (Procedure) Rules, 2008

17. These rules have catered for the following:

(a) Set out forms for ‘application’ & ‘appeals’ etc.

(b) Language of the AFT to be English.

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(c) Hindi may be permitted at discretion of the Bench.

(d) Documents, if in Hindi or other vernacular, to be filed with English

translation.

(e) Place of filing application / appeals - Place of posting / last posting /

residence / cause of action.

(f) Application fee – Single applicant Rs 250/ in the form of Demand Draft
of Nationalized Bank, or crossed postal order, in favour of Registrar of Bench
concerned.

(g) Application fee – more than one application – Rs 500/-.

(h) AFT may exempt payment of fee.

Advantage of AFT over Regular Writ Courts

18. The AFT has the following advantages over the writ jurisdictions of the High
Courts under Article 226 of the constitution, which was the only means of civil
remedy available to service personnel before est of AFTs:

(a) AFT is a specialised court having exclusive jurisdiction over military law
matters.

(b) AFT will decide issues / cases on merits and not just on procedural
aspects (as is the limitation of High Courts under Art 226).

(c) Quick justice, i.e. fast disposal of cases is ensured by AFT.

(d) Justice at a very low cost (only Rs 250/- as court fee, which may also be
exempted) is a salient feature of AFT.

(e) Appeal / Application can be filed at the Bench having territorial jurisdiction
over the area where individual resides / posted / was last posted / cause
of action arose.

(f) No adjournment w/o recording reasons. Cost to be paid for seeking

adjournment more than twice.
(g) Appearance of counsel is not a must and the party himself can present
his case before the AFT.

(h) No dismissal of Application or Appeal without recording reasons in writing.

(j) Appeal against court-martial is provided as a matter of right.

(k) AFT can receive evidence on affidavit.

 107

Time bound Action to be Taken on Judgment Passed by AFT

19. A flow chart showing the time bound action required to be taken at various
level prescribed vide IHQ of MoD(Army) letter No C/00982/AFT/AD/DV-5(B) dt 07
Sep 2012 is placed at Appx‘S’

(See the Flow Chart showing processing of file against the order of AFT for
filing of appeal before the Hon’bleSupreme Court att as Appx‘T’)
 108

CHAPTER:- 17

DEFENCE OF CIVIL CASES

There has been a drastic increase in the litigation more so after the
establishment of Armed Forces Tribunal and in addition, a large number of cases are
still pending in the Supreme Court and various High Courts. Another disconcerting
trend noticed is the growing number of contempt petitions being filed against the
Organisation and high officials. Effective steps are, therefore, needed for the proper
management and monitoring of these cases otherwise there would be an increase in
adverse orders against the Union of India and consequent filing of contempt
petitions. Until and unless the problem areas in defending court cases are identified
desired management and defence thereof cannot be achieved. The aim of this
Chapter, thus, is to educate the environment for effective and purposeful monitoring
of litigation within the existing manpower and administrative backup and accordingly,
guidelines/ steps required to be taken while dealing with such issues are enumerated
below in points form under the following heads in succeeding paras.

Types of Court Cases

1. Civil suits filed mostly in lower courts.

2. Writ petitions and LPAS/writ appeals in High Courts.

3. Writ Petitions/SLPS in Supreme Court.

4. Criminal cases against pers subject to AA.

5. MACT cases.

Action when suit is filed in lower court

1. Summons/notice u/sec 80 CPC to be fwd to ‘A’ br ofArea/equivalent HQ with

copy to Dteat Army HQ/adm sec or mod concerned.

2. Op imdt info/sig from concerned Dte at Army HQ to Area/equivalent HQ

containing following particulars.

3. No of suit.

4. Court where filed.

5. Name of parties.

6. Value of claim or other relief claimed

7. Date fixed for first hearing

8. Whether notice u/sec 80 CPC received and its disposal.

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9. On receipt of said info Fmn HQ to issue instr to concerned unit or detail a

defending unit.

10. Defending unit so detailed to nominate an offr to study the case,offr so

detailed to furnish all assistant to counsel for def of suit. Offr will act under
supervision of Fmn HQ ‘A’ br.

11. GOC Corps/Div/Area or Offr Commanding (i) Sub Area/Bde/BdeGpbeing

competent mil auth will sanction def of suit.

12. CA prepared by counsel will be submitted for approval of authcompetent to

verify the facts and after verification will be signed and filed in the court

13. Regarding cases involving policy or intricate question of law Dte /Br will submit
brief to mod who will take advice of la (def) before fwd to counsel.

Action for Defence of Writ Petition

14. Factual inputs to be provided by concerned unit or defending unit.

Defending unit to take following actions

15. An info from OIC Legal Cell or notice from Court directly or otherwise, CO to
detail suitable offr to study the case and marshal all available material facts relevant.

16. Offrso detailed responsible for monitoring the progress of the case

17. Offrto prepare detailed parawise comments in consultation with CO/fmn HQ.
As and when reqd advice of Dy JAGComd/DJAG Corps may be obtained

18. CO to send offr to OIC legal cell for briefing and the offr to act as instr by OIC
legal cell

19. Concerned unit should bear all expdr in def of wp

20. Offr to affirm/swear after the same has been vetted by competent auth

Processing of Contempt Cases

21. Contempt matters being sensitive in nature requires promptitude and due
seriousness in handling. Following actions to be taken

22. Recipient of notice to fwd notice alongwith contempt appl to concerned Dte at
Army HQ.

23. Dteto info respondents in the appl and will find out the latest posn on
implementation of relevant order

24. Dtewill examine the case in consultation with jag’s dept and ascertain
feasibility of appeal

25 If case of appeal not made out Dte to take imdt steps to implement order.
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Appeals

26. Should a case is decided against the Govt, views of CGSC should be
obtained and thereafter legal opinion should be taken from LA (Def) through mod or
concerned br secretariats of Min of Law.

27. While fwd the case to MoD, following documents to be enclosed:-

28. A copy of the judgment (preferably a certified copy) of the lower court or high
court.

29. Court against which an appeal is sought to be field.

30. Self-contained note containing grounds on which the order of the courts
below.

31. Copy of plaint/suit and written statement or other document filed in courts
below

32. The opinion of the govt counsel/ pleader in regard to the advisability or
otherwise of filing an appeal against the order of lower court or high court

33. The last date by which an appeal is to be filed.

Payment Relating to Court Decree/ Arbitration Awards

34. As and when a decree or award is passed against the govt by the competent
court/tribunal requiring payment of an amount, it should be carefully examined.

35. When it has been decided that no appeal is to be filed against a decree or
award and if the payment is considered inescapable, immediate action to ask for

36. Allotment of funds should be initiated by the concerned fmn HQ /Dte at Army
HQ to avoid execution proceedings by the claimant and consequential issues of
attachment orders against the govt.
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CHAPTER-18

LAW OF WRITS

The aim to incl this chapter is to make the environment understand the law of
Writs which is applicable for person subject to Army Act who approaches the Hon’ble
High Court and Supreme Court for exercise of their fundamental rights as
guaranteed by the Constitution of India. Article 32 or Article 226 of our Constitution,
normally be invoked only by one whose personal rights and interest are adversely
effected and who has justifiable right. A petition under Article 226 can be presented
only after a legal right has been invaded but also when it has been threatened with
immediate peril. The legal right that can be enforced under Article 32 or 226 shall
ordinarily be the personal or individual right of the petitioner himself but in the case of
some of the writs like Habeas Corpus or Quo Warranto, this rule may have to be
relaxed or modified. Thus, the basis to approach the Supreme Court for an
appropriate writ is only infringement of fundamental right. The basis to approach High
Court for appropriate writ is enforcement of either of any fundamental right or for any
other purpose. Person seeking to enforce a right other than a fundamental right can
thus approach for a writ only to the High Court. Person on whom any obligation is
imposed by any statute can also approach the High Court under the writ jurisdiction.

What do you understand with this term “Writ”

1. Writ may be defined as a royal order drawn in concise terms and put into
writing. A writ has also been explained as a Command of the King to the wrong-doer
or party accused, either to do justice to the complainant or else to appear in Court
and answer the accusation against him. In India the foundations of law cannot be
traced to any one single system of jurisdiction. However, of the many, the English
system left the last permanent traces on the culture and civilization of India. Coming
on to the writs, power to issue writs in India, prior to the Constitution, was confined
only to the three chartered High Courts of Calcutta, Madras and Bombay. However,
under the constitution now by the terms of Article 226, every High Court has the
power to issue directions or orders or writs including writs in the nature of Habeas
Corpus, Mandamus, prohibition, Quo-warranto and Certiorari, or any of them for the
enforcement of fundamental rights stipulated in Part III of the Constitution or for any
other purpose. This jurisdiction to issue writs is thus greatly enlarged in amplitude
and is exercisable by each High Court throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority including in appropriate
cases any Government within those territories. The constitution of India of 1950 has
created the Supreme Court of India, the highest judicial forum, which under Article 32
could be moved by appropriate proceedings for the issue of direction or order or writs
(referred to as under Article 226), for the enforcement of the rights guaranteed by
part III of the constitution Article 32 itself being a fundamental right, the Constitutional
remedy of writs is available to anyone whose fundamental rights are infringed by
state action.
 112

HABEAS CORPUS

2. The Latin term 'Habeas Corpus' means 'You must have the body'. The writ of
Habeas Corpus is a remedy available to a person who is confined without
jurisdiction. The Court's writ has to be obeyed by the detaining authority by
production of the person before the Court. Before the Constitution of India came into
force, this prerogative writ of the common law of England was not available as such
to Courts of India. Under Articles 226 and 32 any person can move for the writ in the
forums of the High Court and Supreme Court respectively. The applicant may be the
prisoner or any one on his behalf for the issuance of Habeas Corpus to safeguard his
liberty. In the matter of Habeas Corpus Article 32 is Supreme and is not subject to
legislative control. It is thus both a constitutional and fundamental right. But no
Habeas Corpus lies where the person is convicted in a criminal trial. Detention under
court martial also cannot be questioned. Whereas, detention in military camp, if
illegal, can be questioned by this writ. Detention in custody, custody of minors can be
remedied by a writ of Habeas Corpus. Detention in a lunatic asylum, if illegal, can be
questioned by this writ. The writ of Habeas Corpus is the general remedy against
unlawful imprisonment. The writ is not punitive but only remedial. The detainer is not
punished but the detained is released. The net result of Habeas Corpus procedure is
that no person can be kept in confinement for longer since he has the legal means of
insisting that either he should be let out on bail or brought to a speedy trial. Article
132, 134 or 136 of the constitution, as the case may be provide appeal to the
Supreme Court of India against an order granting or rejecting the application.

WRIT OF CERTIORARI

3. The writ of certiorari is available to any person whenever anybody of persons

having legal authority to determine questions affecting the rights of subjects and
having the duty to act judicially act in excess of their legal authority. Certiorari lies
only in respect of judicial acts in contradistinction to ministerial acts. The writ checks
inferior judicial and quasi judicial bodies to act within the limits of their jurisdiction and
not exercise excess of jurisdiction (Bharat Bank V Employees of Bharat Bank 1950
SCR 459). Alternative remedy is no ground for refusing certiorari when particularly
the tribunal acted without or in excess of jurisdiction. (Sambandam Vs General
Manager 1952 of IMLJ 540) or contrary to natural justice. In case where there has
been excess of jurisdiction, the writ may be moved even by a stranger as anyone of
the public is entitled to do so. In this case, the Court may exercise the discretion as
to whether the writ has to be issued or not. If it is viewed that the right affects the
public generally, then any individual citizen can invoke the remedy against an order
which is manifestly illegal or ultravires.

4. The writ removes the proceedings from such body to the High Court and to
quash a decision that goes beyond jurisdiction. Thus under article 226, all High
Courts enabled to issue this writ, throughout their territorial jurisdiction when the
subordinate judicial or quasi judicialauthacts :-
(a) Without or in excess of jurisdiction
(b) Or in contravention of the rules of natural justice;
(c) Or commits an error apparent on the face of the record. The jurisdiction
of the Supreme Court to issue such writ arises under article 32.
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MANDAMUS

5. 'Mandamus' means 'We command'. It is of English origin. The writ of

Mandamus is a Command issued to direct any person, corporation, inferior court or
Govt requiring him to do a particular thing therein specified which pertains to his or
their office and is further in the nature of a public duty. It's purpose is to supply
defects of justice; and accordingly it will issue to the end that justice may be done, in
all cases where there is specific legal right and no specific legal remedy for enforcing
such right and it may issue in cases where although there is an alternative legal
remedy, yet such mode of redress is less convenient, beneficial and effectual. This
writ is used when the interior tribunal has declined to exercise jurisdiction while resort
to certiorari and prohibition arise when the tribunal has wrongly exercised jurisdiction
or exceeded it's jurisdiction. The other distinction is that the latter writs are available
only against judicial and quasi judicial bodies. Mandamus can be invoked against
any public authority. The applicant for a writ of Mandamus must show he has a legal
right to the performance of a legal duty, by the person against whom the writ is
prayed for. Mandamus may be refused in certain cases as the remedy is not
mandatory but only discretionary. Mandamus when prayed for under Article 32 or
226 for the enforcement of a fundamental right it shall not be refused. But if it is for
other purposes for the enforcement of other rights under Article 226, it may be
refused as in a case where an error in the judgment which could be corrected in
appeal or revision is sought to be remedied by a writ of mandamus. This writ is used
when the inferior tribunal has declined to exercise jurisdiction while resort to certiorari
and prohibition arise when the tribunal has wrongly exercised jurisdiction or
exceeded this jurisdiction. The other distinction is that the latter writs are available
only against judicial and quasi judicial bodies. Mandamus can be invoked against
any public authority. Mandamus commands activity, while prohibition commands in
activity the appeal for a writ of Mandamus must show he has a legal right to the
performance of a legal duty by the person against whom the writ is prayed for. Where
it is left to the discretion of an auth no legal duty arises and hence Mandamus cannot
be in such an event.The constitution of India under article 32 and 226 enables
Mandamus to be issued by all the High Courts and the Supreme Court to all
authorities.

QUO WARRANTO

6. Quo warranto is a judicial remedy against an occupier or usurper of an

independent substantive public officer or franchise or liberty. The usurper is asked
'by what authority (quo warranto) he is in such office, franchise or liberty. If the
answer is not satisfactory to the Court, the usurper can be ousted by an order in quo
warranto. The earliest Indian case on this writ is In re cork hill, followed later by In re
BanwariLalRoy's case. Not many occasions had arisen to issue the writ. After the
constitution of India came into effect there have been more cases.
The writ of quo warrants enables inquiry into the legality of the claim which a
person asserts to an officer or franchise and to oust him from such position if he is an
usurper. The holder of the office has to show to the court under what auth he holds
office.
 114

Quo warrant will be issued when :

(a) The office is of a public and of a substantive nature.

(b) Created by the statute or by the constitution itself (3) and the
respondent must have asserted his claim to the office. It can issue even
through he has not assumed the name of the office.

WRIT OF PROHIBITION

7. The prerogative writ of prohibition is one of the oldest writs known in England.
They were later used by the common Law Courts as a useful weapon in their battles
with the Chancery Courts which were more closely associated with the Crown. A writ
of prohibition is issued by the superior court to an inferior court preventing the latter
from usurping jurisdiction which is not legally vested in it. It compels court with
judicial duties to act within their jurisdiction. When the tribunal acts without or in
excess of jurisdiction or in violation of rules of natural justice, or acts under a law
which is ultra vires, or acts malafide having a personal interest in the cause, a writ of
prohibition can be asked for. Prohibition can lie only against judicial or quasi judicial
proceedings and never against legislative or executive functions. The writ can be
claimed as of right by the aggrieved party. The existence of an alternative remedy is
no bar as only when absence or excess of jurisdiction that prohibition is resorted to. If
there is clear want of jurisdiction it is open to the party to seek to interdict the
proceedings by applying at the earliest stage for a writ of prohibition. A writ of
prohibition is issued by the Supreme Court to an inferior court preventing the latter
from usurping jurisdiction which is not legally vested in it. It compels courts with
judicial duties to act within their jurisdiction. When the tribunal acts without or in
excess of jurisdiction, or in violation of rules of natural justice or acts under a law
which is ultravires or acts malafide having a personal interest in the cases, a writ of
prohibition can be asked for. While certiorari quashes after trial, prohibition is
generally before the trial except in a clear case apparent on the face of the
proceedings where the tribunal was acting without jurisdiction.
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CHAPTER-19

GUIDELINES
CONVENING GENERAL/DISTRICT COURTS MARTIAL – DUTIES OF
STAFF OFFICERS

Fwd of Documents for PretrialAdviseto Dy JAG

1. Following docus should be fwd to Dy JAG for issue the pre-trial advice :-

(a) Application for trial.

(b) Original Summary of Evidence, Original Charge-Sheet.

(c) Original Exhibit lightly marked in pencil on right hand top corner.
(d) 2 Copies of Summary of Evidence and charge-sheet each 2
copies/extracts of exhibits.
(e) Typed copy of original Court of Inquiry, if any.

(f) A letter, in duplicate, explaining any inside info about the case.

(g) Recommendations of the FmnCdrs as to the mode of trial.

(h) Statement as to the character (IAFD-905).
(j) Request by the accused regarding his representation by an officer or
counsel at the trial.
(k) Proceedings before the Commanding Officer in terms of Army Rule 22
(Appx ‘A’ to AO 03/2018/DV)
Before all these documents are fwd to the Dy JAG, the staff officers should
personally scrutinise the documents for their correctness.
2. Pre-Trial Advice of DJAG
On receipt of pre-trial advice, it should be put up to the FmnCdr/Convening
auth for his perusal before he makes up his mind for taking a particular course of
action, Staff Officers should also read the advice and note down any points/advice of
the DJAG for compliance at the time of the trial.
3. Collection of documents from the unit of the accused. The unit of the
accused be asked to fwd sufficient copies of Summary of Evidence, Court of Inquiry
and charge-sheet. These documents are later required at the time of the trial.

4. Endorsement on the Charge-Sheet by the Convening Auth. Once the

convening auth decides about the type of Court Martial to be convened to try the
accused, an endorsement on the charge-sheet is to be made by him. The convening
auth at this stage should anticipate the punishment that could be awarded for the
offences committed by the accused and accordingly decide whether he should be
tried by a DCM or GCM.
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5. Supply of documents to Accused. Though as per AR 33, only 96 hours

notice to the accused before the trial is mandatory but it is always better to hand over
the copy of the charge-sheet and Summary of Evidence to the accused at the
earliest for enabling him to prepare his defence at the earliest. This will avoid the
accused making a request for any adjournment at the time of assembly on grounds
of his inability to prepare his case due to shortage of time.
6. In case a list of available officers to be detailed as Presiding Officer, Members,
Defending Officer and Prosecutor not maintained it should be kept ready.
Units/Fmnsbe asked to forward names of available officers of the rank required for
the Court Martial. Units/Fmns should be given a tentative date of assembly.
7. Selection of Members Waiting Members, Prosecutor and Defending
Officer. The Presiding Officer and Members of the Court should be carefully
selected. Officers with known honesty and integrity should be detailed. For other
points to be kept in mind before detailing the officers see contents Appx ‘A’ and Army
HQ letter No 35418/AG/PS 1 dated 13 Aug 55 and 14 Oct 1981.
8. Issue of Adm Instructions. AdmInstrs for convening of GCM/DCM be
issued to all concerned giving out specific duties earmarked for them, such as :-
(a) Court Martial Room.
(b) Typist.
(c) Stationery.
(d) Court Martial Orderly.
(e) Escort.
(f) Daily Medical Examination of the accused.
(g) Transport for Judge Advocate, members and witnesses.
(h) Tea arrangements for the Court during the trial etc.
9. Witnesses
It has been seen in the past that the major reason for delay in finalisation of
GCM/DCM is non-availability of witnesses. Staff Officer should initiate action well in
advance to get the witnesses. In case of service personnel, signals should be sent
to the superior fmn with info copy to the unit of the witness. The officer who recorded
the Summary of Evidence and/or the independent witness should also be called.
For civilian witnesses, summons should be sent through the magistrate well in
advance. Normally, a period of 20 days is required by them to serve the summons
(For TA/DA, see TR 131 and SAO 1/S/2002/DV).

10. Prosecution Counsel. In case the accused is being represented by a

counsel and where the case is a complicated one, in consultation with the Dy JAG
Command, a case should be taken up to engage a prosecution counsel well in
advance. Normally retired JAG Dept Officers be engaged and a list with their
addresses be maintained by the formations. The provisions of Para 478 (as
amended from time to time) also entitle the accused person when facing charges for
offences punishable with death to have the services of a defence counsel at the Govt
expenses. The fees paid to the counsels (prosecution or defence) engaged at
Courts Martial is chargeable to Major Head 209, minor Head 11 B(a) and (e) item 17
 117

as mentioned in “Classification Hand Book Defence Services Receipts and Charges

– 1975”. The expected expenditure on counsel fees should be budged by the
Formation in its annual budget. If not budgeted, the demand for release of such
amount should be projected in accordance with Army HQ letter No 18899/AG/ DV-1
dated 26 Aug 82 .

11. Judge Advocate. Dy JAG Command should be approached to detail a

Judge Advocate whose particulars should be obtained from his office. The Judge
Advocate’s name is to be mentioned in the convening order.

12. A copy of points advised by the Dy JAG/DJAG Comd/Corps in his pre-trial

advice to be complied with at the trial should be handed over to the Prosecutor/
Prosecution counsel for compliance.

13. Convening Order. After all adm arrangements have been completed and all
witnesses are available or availability of witnesses on a particular date ascertained, a
final date of assembly should be decided and a convening order issued. The
convening order should be free of any erasures/cuttings/over typing. It should be
signed personally by the convening authority. Any mistake in the convening order
may affect jurisdiction of the court and result in setting aside of the proceedings.

14. Assembly of Court Martial. When all witnesses are available and all
adm arrangements are complete, inform Dy JAG Command to enable him to
dispatch the Judge Advocate. If possible, a Staff Officer be present at the time and
location of assembly as rep of convening auth, on the first day of assembly, to
ensure all arrangements are made and there is no delay on this account. Day to day
progress of the Court Martial be obtained from the Unit/ Prosecutor and put to the
convening authority. Convening authority should be kept apprised of the day to day
progress of the Court Martial.

SALIENT POINTS FOR GENERAL COURT MARTIAL

1. Who can Convene :

(a) Central Government.

(b) Chief of the Army Staff.

(c) Any other officer empowered by COAS (Army Act Sec 109 and notes).

2. Composition :

(a) GCMs should consist of not more than 5 members. When trials are
likely to be prolonged, 2 or 4 additional members be detailed (AA Sec 113 and
Note 2 and Regulations for the Army (Revised Edition) 1987, Para 460 (a)
refers).

(b) At least 4 members shall be of the rank of Captain and above (AA Sec
113 refers).

(c) Each member to have a minimum of 3 years of commissioned service

(AA Sec 113 refers).
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(d) Members of the Court shall not be exclusively of the Corps or

Department to which the accused belongs (AR 40 (1) refers).

(e) No officer below the rank of the accused shall be a member or Judge
Advocate unless such officer in the opinion of the convening officer to be
recorded in the convening order, be not available having regard to exigencies
of service (Army Rule 40 (2) refers).

(f) No officer below the rank of Capt can be a member for trial of a field
officer (AR 40 (3) refers).

(g) The Presiding Officer is to be a Colonel or above, otherwise sanction of

next superior officer to be obtained and recorded in the convening order (DSR
Para 460 (a) refers).

(h) When the CO of a Corps is to be tried, as many officers as possible

should be holding or have held equivalent Command (DSR Para 460 (b)
refers).

(j) A Judge Advocate must attend (AA Sec 129).

3. Ineligible and disqualification of officers to act as Members

(a) Ineligible

(i) When he is not subject to Army Act vide AR 39 (1) or having

requisite commissioned service vide AA Sec 113 and 114.
(ii) Ante date of commission or does not count towards requisite
commissioned service for members of a Court Martial (Note 3 to AA
Sec 113 and Regulations for the Army 460 (e) refers).

(b) Disqualified
(i) Convening Officer AR 39 (2) (a).
(ii) Prosecutor or witness for prosecution (AR 39 (2) (b)).
(iii) Who investigated the charges before trial, or took down S of E or
was a member of a Court of Inquiry respecting the matters on which
charges against the accused are framed or made preliminary inquiry
into the case or was a member of a previous Court Martial which tried
the accused in respect of the same offence (AR 32 (2) (c).

(iv) Was the CO of the accused or of the Corps to which the

accused belongs (AR 39 (2) (d)).

(v) Has a personal interest in the case. This extends to a remote or

very small interest or a merely technical interest (AR 39 (2) (e) and note
3 thereto).

(vi) Provost Marshal or Assistant Provost Marshal (AR 39 (3)).

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4. Power

To try any person subject to the Army Act for any offence punishable therein,
and to pass any sentence authorised thereby (AA Sec 118).

5. Who can confirm

The Central Govt, or an officer empowered by a Warrant of Central

Government (AA Sec 154).

6. Power of confirming officer

(a) To confirm the findings and sentence and the finding on plea in bar of
trial (AA Sec 153, 154 and 156 and AR 53 (5) and 70).

(b) Partial confirmation (AR 72 and notes).

(c) Non-confirmation vide AA Sec 153 and notes and AR 53 (4) and (5)
and AR 70.

(d) To vary sentence (AR 73 and notes).

(e) Order a revision of findings and/or sentence (AA Sec 160 and AR 68
and notes).

(f) To mitigate, remit or commute the punishment (AA Sec 158 and notes).

(g) Passing orders on a pre-confirmation petition, unless he has reserved

confirmation to superior auth (AA Sec 164 (1)).

(h) Passing a direction under AA Sec, 169 specifying the mode of

execution of sentence of imprisonment.

(j) Recommending to civil auth class in civil prison for carrying out the
sentence of imprisonment.

(k) To suspend a sentence of imprisonment for ‘Life or imprisonment if he

has power to convene a GCM or SGCM. Otherwise direct that the offender be
not committed to a prison or mil custody until orders of an auth competent to
suspend the sentence have been obtained (AA Sec 182 and 183).

(l) To pass an order for disposal of any property produced before the
Court Martial (AA Sec 151).

(m) To direct in case of a JCO, WO or OR that promulgation shall take

place at a parade (DSR Para 473).
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7. Restriction on powers of Confirming Auth

(a) A sentence of death passed by a GCM requires confirmation by Central

Govt vide terms of A-2 and A-3 warrants, forms of which are reproduced on
pages 752 and 753 of MML (Vol III). These restrictions are mandatory vide
AA Sec 156.

(b) Vide AR 74, AR 164 & Para 472 of the Regs for the Army, Revised
Edition 1987, a member of Court Martial, prosecutor, or a former CO who had
investigated the case (except on board of a ship), shall not confirm the
findings and sentence of that Court Martial. Confirmation by any of them is
nullity and proper authority may confirm them (notes to AR 74).

(c) For administrative restrictions on the powers of the confirming auth.

Ref Para 472 of DSR).

8. Promulgation. Promulgation includes reading out the charge, findings,

sentence, any recommendations to mercy and confirmation or non-confirmation of
the proceedings, as directed by the confirming authority, or according to the customs
of service. In case of officers, it is carried out by FmnCdrs, in case of JCOs/WOs
and OR, it is carried out by CO, but if CO be the rank below Major then by Fmn Cdr.
Confirming officer in case of GCM/SCM/DCM may order it to take place at a parade.
If an accused absents himself before promulgation, then after he has been declared
as such by a Court of Inquiry under AA Sec. 106 promulgation can be effected by
publication of these particulars in Unit Orders (AR 71 and Para 473 of the DSR).
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CHAPTER-20
IMPORTANT REFERENCES
Ser No Subject Reference

1. Framing Charges - ARs 28 to 32 and notes

2. Forms of Charges - Pages 382 to 401 of MML 1983 Vol II

3. Hearing of charge - AR 22 and AO 03/2018/DV

4. Recording of S of E - AR 23

5. Remand of accused - AR 24

6. Arrest - AAs 101, 102, 104, RA Paras 391 to 393 to

395 to 397.

7. Investigation and - RA Paras401 to 405

disposal of charges

8. Identification parade - RA Para 406

9. Army personnel on - RA Para 409

deputation to civil Department

10. Charges preferred - RA Para 407

by CMP

11. Delay Reports - AA Sec 103 and AR 27

12. Active Service - AA Sec 3, 9, SRO 17E dated 05 Sep 77

and Army HQ letter No 94680/AG/PSI dated
25 Oct 77.
13. Reference to the - RA Para 459
DJAG/Dy JAG Command
before trial

14. Rights of accused to - AR 33

prepare defence
15. Warning of accused - AR 34
for trial

16. Who can hold SCM - AAs 116, AR 187 and Army HQ letter No
42231/AG/DV-1 dt 22 May 85 and SAO
1/S/2002/DV.

17. Composition - AAs 116 (2)

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18. Place of trial - 124

19. Hours of sitting - AR 81

20. Continuity of trial and - AR 82

adjournment of Court

21. Who can be tried - AAs 120 (3)

22. Offence triable and - AAs 120 (1) (2) & AR 130
memorandum to attached

23. Period of Limitation - AAs 122

24. Powers of punishment - AAs 120 (1) and (5)

25. Punishment awardable - AAs 71

26. Suggested scale of - RA Paras 448 and 468 (c)

Punishment

27. Combination on - AAs 73

Punishment

28. Proceedings Recording - AR 106

29. Assembly - AR 108

30. Swearing/affirming of - AR 109

Court

31. Arraignment - AR 111

32. Amendment of charge - AR 113

33. General plea of ‘Guilty’ - AR 115

or ‘Not Guilty’

34. Procedure after plea - AR 115(2), 115(2A) & 116

of Guilty

35. Procedure after plea - AR 118

of ‘Not Guilty’

36. Witness in reply to - AR 119

defence

37. Verdict - AR 120

38. Procedure on finding of - AR 122

‘Not Guilty’
 123

39. Procedure on conviction - AR 123

40. Sentence takes effect - AR 168, AA Secs 167 to 169

41 Signing of proceedings - AR 125

42. Friend of the accused - AR 129

43. Promulgation - ARs 131 and 132 & RA Para 473

44. Review of proceedings - AR 133

45. Special findings - AA Sec 139 & AR 62

46. Preservation of - AR 146

Proceedings

Advise
“While you perform any duties assigned to you by competent
authority such as legal, judicial and administrative, you must
disabuse your mind with any extraneous consideration and must
adjudicate solely on the basis of evidence or records whatsoever
comes before you during the proceedings .There should be no
influence in the proceedings even by the convening authority”

:- By the Author
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CHAPTER-21

ADMISSIBILITY OF ELECTRONIC EVIDENCE

Introduction
1. The Information Technology Act, 2000 and its amendment is based on the
United Nations Commission on International Trade Law (UNCITRAL) model Law on
Electronic Commerce. The Information Technology (IT) Act 2000, was amended to
allow for the admissibility of digital evidence. An amendment to the Indian Evidence
Act 1872, the Indian Penal Code 1860 and the Banker's Book Evidence Act 1891
provides the legislative framework for transactions in electronic world. Digital
evidence or Electronic evidence is any probative information stored or transmitted in
digital form that a party to a court case may use at trial. Before accepting digital
evidence it is vital that the determination of its relevance, veracity and authenticity be
ascertained by the court and to establish if the fact is hearsay or a copy is preferred
to the original. Digital Evidence is “information of probative value that is stored or
transmitted in binary form”. Evidence is not only limited to that found on computers
but may extend to include evidence on digital devices such as telecommunication or
electronic multimedia devices. The e-EVIDENCE can be found in e-mails, digital
photographs, ATM transaction logs, word processing, documents, instant message
histories, files saved from accounting programs, spreadsheets, Internet browser
histories databases, Contents of computer memory, Computer backups, Computer
printouts, Global Positioning System tracks, Logs from a hotel’s electronic door locks,
Digital video or audio files. Digital Evidence tends to be more voluminous, more
difficult to destroy, easily modified, easily duplicated, potentially more expressive and
more readily available. Today, people are using electronic means of communication
and electronic data for interchanging the business transaction i.e. Banking,
Insurance, Consumer Goods, Manufacturing, Engineering and Telecommunication.
The various categories of electronic evidence such as website data, social
network communication, email, SMS/MMS, surveillance video, audio, ATM
transaction reports and computer generated documents poses unique problem
and challenges for proper authentication and subject to a different set of views.
2. DEFINITION :WHAT IS ELECTRONIC DOCUMENT OR DIGITAL
EVIDENCE

(a) The Oxford English Dictionary(second edition), offers two

definitions, both of which help to explain the meaning of “digital”: ‘Relating
to or operating with signals or information represented by discrete
numeric values of a physical quantity such as voltage or magnetic
polarization (commonly representing the digits 0 and 1); designating a
signal or information of this kind. Opposed to analogue.’
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(b) In Wikipedia ‘Electronic document means any computer data

(other than programs or system files) that are intended to be used in their
computerized form, without being printed (although printing is usually
possible).’

(c) ’“Electronic records” have been defined in the Information

Technology Act 2000, as any data, record or data generated, any image or
sound stored, received or sent in an electronic form or micro film or computer
generated micro fiche.

3. AMENDMENTS : INDIAN EVIDENCE ACT AND ELECTRONIC

DOCUMENT.

(a) The Indian Evidence Act has been amended by virtue of

Section 92 of the Information Technology Act, 2000 (Before amendment).
Section 3 of the Act was amended and the phrase “All documents
produced for the inspection of the Court” were substituted by “All
documents including electronic records produced for the inspection of the
Court”.
(b) Regarding the documentary evidence, in Section 59, for the words
“Content of documents” the words “Content of documents or
electronic records” have been substituted.

(c) As per amended provision Section 3(2) of the Evidence Act,

electronic evidence is documentary evidence. “(2) All documents
including electronic records produced for the inspection of the Court, such
documents are called documentary evidence.”

(d) Section 2(t) of Information Technology Act 2000 provides that “(t)
‘electronic record’ means, “data, record or data generated, image or
sound stored, received or sent in an electronic form or micro film or computer
generated micro fiche.

(e) For example A digital charge sheet was held to be a

document and it can be accepted as an electronic record. The
Hon'ble Supreme court directed supply of charge sheet in electronic
form additionally. [Thana Singh -Vs- Central Bureau of Narcotics, (2013)
2 SCC 590].

(f) Section 4 of the Information Technology Act also provides that if the
document in electronic form i.e. CD/DVD etc., is (a) rendered or made
available in an electronic form; and (b) accessible so as to be usable for a
subsequent reference, then it would be sufficient compliance.
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(g) Section 22A declares that “oral evidence as to the contents of

electronic records are not relevant, unless the genuineness of electronic
record is produced in the question.”

4. As Per Section 2 of the Indian Evidence Act 1872: “Evidence” means and
includes-

(a) All statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry, such statements are
called oral evidence;

(b) All documents including electronic records produced for the

inspection of the Court, such documents are called documentary evidence.

We now need to see the definition of “document(s)” as per the provisions of

the Act.

“Document”means any matter expressed or described upon any substance

by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording that
matter.

Illustrations
A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.

Further, Section 2 of the Act states that the expressions “Certifying Authority”,
“digital signature”, “Digital Signature Certificate”, “electronic form”, “electronic
records”, “information”, “secure electronic record”, “secure digital signature”
and “subscriber” shall have the meanings respectively assigned to them in the
Information Technology Act, 2000.
5. The main objective to introduce the specific provision has its origin to technical
nature of the evidence particularly as the evidence in electronic form cannot be
produced in the court of law owing to the size of computer / server, residing in the
machine language and thus, requiring the interpreter to read the same. Section 65B
of the Evidence Act makes the secondary copy in the form of computer output
comprising of printout or the data copied on electronic/magnetic media. Section 65B
of Indian Evidence Act is under focus in the Judicial and Law Enforcement circles.
In this context following points are required to be kept in mind :-
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(a) Section 65B (as well as 65A) of Indian Evidence Act refer to the special
provisions of the Act in respect of Electronic Documents. Though Section 65 is
referring to “Secondary” documents in paper form, there is no such distinction
made as to the electronic document.

(b) There is no need to distinguish Primary and Secondary and all documents
need to be interpreted by a human being which takes the form of a Section
65B certificate.

(c) A “Hard disk” which may contain an electronic document also cannot be
considered a “Primary Document” since it is only a “Container” and the real
Electronic document is an expression in binary language which cannot be
read by a human being and needs to be interpreted with the assistance of a
binary reading device (Computer + operating system +Application)

(d) Section 65B explains the conditions under which an electronic

document can be considered as “Admissible” in a Court as a “Document” and
it needs to be suitably confirmed for the Court to accept the document, which
is often termed as “Section 65B Certificate or Statement”

(e) Section 65B refers to a process of producing a “Computer Output” of

the electronic document which is the evidence to be admitted and such
computer output can be either in the form of a “Print Out” or a “Copy”.

(f) There is a “Process” by which the electronic document becomes the

“Computer output” and Section 65B identifies this as the subject activity
which needs to be conducted by a person having lawful control over the
computer producing such output and that during the period of such
production, the Computer should be working properly etc.

(g) The focus of Section 65B is the activity of conversion of the electronic
document residing inside a system which can be seen by an observer into a
“Computer Output”.

(h) The other clarifications contained in Section 65B such as the

Computer Output could be produced by a combination of computers, acting in
succession etc, as relating to dynamic creation of an electronic document from
a data base and routing it through multiple devices onto a final visible form in
the computer of the observer and thereafter its porting into a Printer.

(j) Considering these interpretations, Section 65B certification is a “matter

of fact”certification to the effect that “What I saw is what I reproduced as a
computer output faithfully” and this can be done by any person who is
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observing an electronic document in his computer and wants it to be produced

as an evidence. It is not necessary that a document from that particular
website has to be certified only by the same website server administrator.
Similarly, a statement of account downloaded from any bank website need not
be certified only by the ICICI Bank manager but by any person who can
lawfully access the document in electronic form.

(k) There is also an important distinction that “Content Owner” is different

from “Content Viewer” and Section 65B is meant to be produced by a content
viewer. On the other hand the content owner, in respect of, say a Bank
statement is the official Bank manager and he can provide a print out as the
owner of the content who understands the content and is considered as an
“Expert” in the domain. Anybody else who views the document provides a
Section 65B certificate that the print out (or a soft copy) is a faithful
reproduction of the same.
(l) It is very important that the legal fraternity and the Judiciary interprets
the section properly. Any interpretation that only a “Server Administrator” can
provide a certificate under Section 65B is considered incorrect. The server
administrator can however provide the certificate, but it is not mandatory.
Section 65B certifier is like a photographer who captures a photograph of an
event and confirms the process of taking the photograph though he may not
be aware of who is there in the picture and what they are doing. It is left to
other “Experts” to interpret the “Content” and impute meaning just like a
subject matter expert can do.
6. DISCUSSION : ANVARP.V. VERSUS , P.K. BASHEER AND OTHERS

(a) In the above stated significant judgment, Hon’ble Supreme Court has
settled controversies arising from various other conflicting judgments, as well
as practices being followed in High Courts and the Trial Courts
regardingadmissibility of Electronic Evidence. The Court has interpreted
Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary
data in CD /DVD / Pen Drive are not admissible without a certificate under
section 65 B(4) of the Evidence Act. It has been elucidated that electronic
evidence without the said certificate cannot be proved by oral evidence and
also the opinion of the expert under section 45A of the Evidence Act cannot be
resorted to make such electronic evidence admissible.
(b) This judgment now clarifies all doubts which have serious implications
in number of cases, where the prosecution relies on electronic data,
particularly in cases of anti-corruption where reliance is being placed on the
audio-video recordings which are being forwarded in the form of CD/DVD to
the Court. In all such cases, where the CD/DVD are being forwarded without a
certificate under section 65B Evidence Act, such CD/DVD are not admissible
in evidence and further expert opinion as to their genuineness cannot be
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looked into by the Court as evident from the Supreme Court Judgment. It was
further observed that all these safeguards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to electronic records
sought to be used as evidence. Electronic records being more susceptible to
tampering, alteration, transposition, excision, etc. without such safeguards, the
whole trial based on proof of electronic records can lead to travesty of justice.
(c) In anticorruption cases launched by the CBI and
anticorruption/Vigilance agencies of the State, even the original recording
which are recorded either in Digital Voice Recorders/mobile phones are not
being preserved and thus, once the original recording is destroyed, there
cannot be any question of issuing the certificate under Section 65B(4) of the
Evidence Act. Therefore in such cases, neither CD / DVD containing such
recordings are admissible and cannot be exhibited into evidence nor the oral
testimony or expert opinion is admissible and as such, the recording/data in
the CD/DVD’s cannot become the sole basis for conviction.
(d) In the above mentioned Judgment, the Court has held that Section 65B
of the Evidence Act being a ‘not obstante clause’ would override the general
law on secondary evidence under Section 63 and 65. Section 63 and Section
65 of the Evidence Act have no application to the secondary evidence of the
electronic evidence. The same shall be wholly governed by provisions of
Section 65A and 65B of the Evidence Act. The Constitution Bench of the
Supreme Court overruled the judgment laid down in State (NCT of Delhi) v.
Navjot Sandhu alias Afjal Guru(2005) 11 SCC 600 by the two judge Bench
of the Supreme Court. The court specifically observed that the Judgment of
Navjot Sandhu supra, to the extent, the statement of the law onadmissibility of
electronic evidence pertaining to electronic record of this Court, does not lay
down correct position and is required to be overruled.
(e) The only options to prove the electronic record / evidence is by
producing the original electronic media as Primary Evidence court or it’s copy
by way secondary evidence under section 65A/65B of Evidence Act. Thus, in
the case of CD, DVD, Memory Card etc. containing secondary evidence, the
same shall be accompanied by certificate in terms of Section 65B obtained at
the time of taking the document, without which, the secondary evidence
pertaining to that electronic record, is inadmissible.

(f) In that case, the rep of Yahoo Server (who used to deal with the
machine) was also examined an “Expert” since as a part of the certification,
he had also interpreted the IP address visible in the document belonging
to a specific ISP in Mumbai etc.
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7. Admissibility.
(a) Section 65A.
(i) The Indian Evidence Act prescribes the admissibility and
procedure as to how the veracity and value of evidence is gauged.
Section 65A states that contents of electronic records may be proved
in evidence by the parties in accordance with the provisions of Section
65B.
(ii) Going further, Section 65B(1) states that on the fulfillment of
certain conditions, any information contained in an electronic record
shall be deemed to be a document and shall be admissible in evidence
without further proof or production of the originals. The conditions under
which this may be done are contained under sub-clause 2 of Section
65B which reads as follows:-
(b) Section 65B(2). The conditions referred to in Sub-section (1) inrespect
of a computer output shall be the following, namely:
(i) The computer output containing information was produced by
the computer during the period in which the computer was used
regularly to store or process information for the purpose of any
activities regularly carried over that period by the person having lawful
control over the use of the computer.

(ii) During the said period, information of the kind contained in

electronic record or of the kind from which the information so contained
is derived was regularly fed into the computer in the ordinary course of
the activities;

(iii) Throughout the material part of the said period, the computer
was operating properly or, if not, then in respect of any period in which
it was not operating properly or was out operation during that part of
the period, was not such as to affect the electronic record or the
accuracy of its contents; and

(iv) The information contained in the electronic record reproduces or

is derived from such information fed into the computer in the ordinary
course of the said activities.

8. Appreciation : Admissibility Of Electronic Evidence.The mandatory

requirement under Section 65B (4) is that the certificate produced should satisfy the
requirement under Section 65B (4) (b), and (c) and the requirement that they should
be signed by a person occupying a responsible official position in relation to the
operation of the relevant device or the management of the relevant activities
(whichever is appropriate). The electronic evidence, thus produced that is
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accompanied by such certificate "shall be deemed to be also a document",

dispensing with further proof of production of the original. In other words, there is no
escape from the requirement of producing the signed certificate by a person
occupying a responsible official position in relation to the operation of the relevant
device or the management of the relevant activities. Further the official position is an
adjective means that the person connected with the job who is a position of authority
i.e. formed and attended by people in authority.
9. Elaboration Through An Example. In a given situation, suppose one of the
witnesses from the Prosecution at the trial tells the Court that he was himself
listening to intercepted conversations. However, he is unable to tell the Court
anything whatsoever about the original computer device in which the taped
conversation was recorded. Importantly, he is not the person who is "occupying a
responsible official position in relation to the operation of the relevant device or the
management of the relevant activities". His evidence only states that during the
investigation, "I was directed to listen the conversation on some numbers." He then
states that "During the course of observation one of the numbers, i.e., 9123456789
(hypothetical) came to the knowledge and the said mobile was also taken on
observation and subsequently it was known that the said mobile phone was used by
the accused present."
10. In This Case - There is no certificate issued in terms of Section 65B by
anyone. It is understandable that the said prosecution witness may not be
conversant with the operation of a device used to record the conversations which he
was listening, may not be the person capable of giving such a certificate in the first
instance. But then there is no certificate by any other person satisfying
therequirement of Section 65-B (4), i.e., a person "occupying a responsible official
position in relation to the operation of the relevant device or the management of the
relevant activities".
11. Further in another situation taking the same example suppose the witness of
the Prosecution stated that on a subsequent date i.e. xx.xx.2016, which is nearly one
year post the arrest of accused, he "obtained the permission from competent
authority regarding observation of 4 mobile having no. xxxxxxxx, 9123456789,
xxxxxxxxx, xxxxxxxxx" and he was "deputed to hear the conversation on the
aforesaid mobile phones." He states that "I got the aforesaid information collected in
my pen drive and the same was handed over to the Investigating Officer XYZ (PW-
2), who copied the said information in his own computer and returned his pen drive."
It was only in 2016 that Prosecution Witness handed over the conversation
downloaded by other. In the words of Prosecution Witness himself, he in turn
prepared the CDs of the conversation which he heard. A separate folder was
prepared. In effect what was happening in the process was that electronic data was
copied from one device to a pen drive. This was then handed over to and further
copies made out of it by another officer. When he was examined in detail it became
apparent that what was being spoken of was the making of further copies of those
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copies. The original remained on a server which none of the other persons had an
occasion to access.
12. Further in this case, the Court has not been shown any certificate under
Section 65-B which is in writing signed by the person "occupying a responsible
official position in relation to the operation of the relevant device or the management
of the relevant activities". Since other Prosecution Witness can speak only about the
computer which he was using and what he was listening to on it, which were copies
made of the originals, no part of Section 65-B can be said to have been complied
with, much less "substantially complied with".
13. Therefore, if the trial Court goes only by the judgment in Navjot Sandhu
(supra) to come to the conclusion regarding substantial compliance with Section 65-
B and admits the secondary evidence led by a person who was otherwise conversant
with the working of the computer system or who could recognise the signatures and
writings of the person who had given certificate in relation to the working of such
system. No such person was examined in the present case. It has also come in the
evidence that "I did not at any time make an enquiry whether the original computer
monitoring system which was recording the intercepted call had a breakdown or not."
14. Also, the other piece of electronic evidence is the intercepted mobile
conversations., the CFSL expert, who analysed the voice samples stated in his
cross-examination: "The intercepting machine was not sent to us and the questioned
sample was sent in a cassette." As far as is concerned, his evidence is to the effect
that he was the administrative head of the system which was used for monitoring the
calls. The password of the said system remained with him. He opened the system
using the password and in his presence PW-1 copied the relevant calls. He has also
stated "The computer system runs 24 hours under my supervision and custody. I
state that there was no problem in the operation of the computer system while
recording the calls in the present case and there was no breakdown whatsoever. I
was present during the entire period the relevant data was copied from the hard disk
of the computer system to the pen drive and no tampering was done at that stage."
15. Further, it comes during his cross-examination where he had stated that no
record was maintained regarding the data having been transferred from the computer
system to the pen drive. He stated that the computer system was installed in the
office and that "I cannot exactly tell how many times there was a breakdown in the
computer system from year to year." In his cross-examination by counsel for A-1, he
stated "I was throughout present with PW-X when he copied the data from the
monitoring system. It took about 8-9 hours to copy the data. He further stated "PW-X
copied all the data in his own pen drive."
16. Now here it appears that as far as the original computer system which was
used, the evidence of PW makes it clear that he was in charge of the supervision and
custody of the said computer system. It is, however, apparent that PW-X did not
actually issue any certification under section 65-B. While in terms of law explained by
 133

the Supreme Court in Navjot Sandhu, the evidence of PW-30 may have been
sufficient compliance with Section 65-B. However, in view of the subsequent decision
in AnvarP.V. (supra) overruling the decision inNavjot Sandhu on this aspect, the
electronic evidence in the present case is inadmissible.
17. Therefore with this example it is submitted that there was no question of
further secondary evidence to be produced in terms of Section 65B which is why the
Supreme Court in AnvarP.V. held categorically that "Sections 63 and 65 have no
application in the case of secondary evidence by way of electronic record; the same
is wholly governed by Sections 65A and 65B." The decision in Navjot Sandhu to the
above extent was held to be no longer good law. The Court in AnvarP.V. did not stop
there. It further declared:
"Thus, in the case of CD, VCD, chip, etc, the same shall be accompanied by
the certificate in terms of Section 65B obtained at the time of taking the document,
without which the secondary evidence pertaining to that electronic record is
inadmissible."
18. In other words, the law is now abundantly clear. If there is no certificate
accompanying electronic evidence in terms of section 65B, such evidence is
"inadmissible." This evidence is inadmissible because it does not satisfy the
requirement of the law laid under the provisions of section 65B. Consequently, as far
as the present example is concerned, the Court had satisfied that the intercepted
telephone calls presented in the form of CDs before the trial court which were then
examined by the FSL expert do not satisfy the requirements of Section 65- B. The
net result is that the electronic evidence in this case in the form of the intercepted
conversations and the CDs cannot be looked into by the Court for any purpose
whatsoever.
19. Proof : Electronic Evidence. In Sections 61 to 65 of the Indian Evidence
Act, the words “Document or content of documents” have now been replaced by
the words “Electronic documents or content of electronic documents”. Thus, the
omission of the word, “Electronic Records” in the scheme of Section 61 to 65
signifies the clear and explicit legislative intention, i.e. not to extend the applicability
of Section 61 to 65 to the electronic record in view of overriding provision of Section
65B of the Indian Evidence Act dealing exclusively with the admissibility of the
electronic record. It may be noted that section 65B starts with a non
obstante clause. Thus, notwithstanding anything contained in the Evidence
Act, any information contained in an electronic record which is printed on a paper,
stored, recorded or copied in optical or magnetic media produced by a computer
shall be deemed to be a document only if the conditions mentioned under sub
Section (2) are satisfied, without further proof or production of the original.
 134

The following are the specified conditions under section 65B(2) of the Evidence Act :-
(a) The electronic record containing the information should have been
produced by the computer during the period over which the same was
regularly used to store or process information for the purpose of any activity
regularly carried over that period by the person having lawful control over the
use of that computer;
(b) The information of the kind contained in electronic record or of
the kind from which the information is derived was regularly fed into the
computer in ordinary course of the said activity;
(c) During the material part of the said period, the computer was
operating properly and that even if it was not operating properly for some time,
the break or breaks had not affected either the record or the accuracy of its
contents; and
(d) The information contained in the record should be a
reproduction or derivation from the information fed into the computer in the
ordinary course of the said activity.
(e) Section 65B(3) provides that the following computers shall constitute as
single computer.
(i) By combination of computers operating over that period, or

(ii) By different computers operating in succession over that period,

or
(iii) By different combinations of computers operating in
successionover that period, or

(iv) In any other manner involving the successive operation over

that period, in whatever order, of one or more computers and one or
more combinations of computers.

20. Sec 65B(4). Regarding the person who can issue the certificate and contents
of certificate, it provides the certificate doing any of the following things:
(a) Identifying the electronic record containing the statement and
describing the manner in which it was produced;

(b) Giving the particulars of device.

(c) Dealing with any of the matters to which the conditions mentioned in
sub-section (2) related and purporting to be signed by a person occupying a
responsible official position in relation to the operation of the relevant device or
the management of the relevant activities (whichever is appropriate) shall be
evidence of any matter stated in the certificate; and for the purposes of this
 135

sub-section it shall be sufficient for a matter to be stated to the best of the

knowledge and belief of the person stating it.
(d) This contention is further strengthened by the insertion of Section 65A
& 65B and the words “Notwithstanding anything contained in this Act” which is
a non-obstante clause, further fortifies the fact that the legislature has
intended the production or exhibition of the electronic records by Section 65A
& 65B only. A non-obstante clause is generally appended to a Section with a
view to give the enacting part of the Section, in case of conflict, an overriding
effect over the provision in the same or other act mentioned in the non-
obstante clause. It is equivalent to saying that despite of the provisions or act
mentioned in the non-obstante clause, the provision following it will have its
full operation or the provisions embraced in the non-obstante clause will not
be an impediment for the operation of the enactment or the provision in
which the non- obstante clause occurs.
(e) The aforesaid principles of interpretation with respect to the non-
obstante clause in form of “Notwithstanding anything contained in this Act” is
further supported by the Hon’ble Apex Court in Union of India and Anr., v.
G.M. Kokil and Ors.wherein it waa observed “It is well-known that a non
obstante clause is a legislative device which is usually employed to give
overriding effect to certain provisions over some contrary provisions that may
be found either in the same enactment or some other enactment, that is
to say, to avoid the operation and effect of all contrary provisions.”
Further,the Hon’ble Apex Court in the case cited as Chandavarkar SitaRatna
Rao v. Ashalata S. Guram, explained the scope of non-obstante clause as
“…It is equivalent to saying that in spite of the provision of the Act or any other
Act mentioned in the non obstante clause or any contract or document
mentioned the enactment following it will have its full operation…”

21. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in
any proceedings pertaining to an electronic record, it is permissible, provided the
following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record
containing thestatement;
(b) The certificate must describe the manner in which the electronic
record was produced;
(c) The certificate must furnish the particulars of the device involved in the
production of that record;
(d) The certificate must deal with the applicable conditions mentioned
under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible

official position in relation to the operation of the relevant device.
 136

22. Most importantly, such a certificate must accompany the electronic

record like computer printout, Compact Disc (CD), Video Compact Disc (VCD),
pen drive, etc., pertaining to which a statement is sought to be given in evidence,
when the same is produced in evidence. For sustaining electronic information over
time and the authenticity can only exist ifthe three characteristics like reliability,
integrity and usability are fulfilled.

23. Suggested Format : Certificate Under 65b (4)

I Name XYZ hereby certify that :-

(a) That the SD Card / CD containing or any other type of computer in
electronic form that (mention the details of type of file containing picture/video
etc) was produced by the computer (contains Mob / Lap Top etc which falls
under the definition of computer under _____) used by me as a owner and
having lawful control over me.
(b) That the said computer (description of the device) was used by the
undersigned on regular basis from _____ till date (whatever may be the fact).
(c) During the said period the said computer (device) was used for the
purpose of recording on the regular basis and the info contained in the CD (as
mentioned at Para (a) above) was also fwd into the same computer in
theordinary course of the said activities.
(d) Though at the above mention period the device was operating properly
or throughout the period except between ____ to ______ where the
computer/device was not affected out of operation due to technical error
but the dates contained in the said output was never effected and I further
confirmed and certify that the said error in no manner and way has affected
the electronic record or it contents.
(e) The said info in the CD ( device / any computer output) containing the
electronic record is reproduced/derived from such information fed in the
(description of computer device) in the ordinary course of the said activities.
23. Suggested Actions : By The Officer Investigating The Case.
(a) During the course of investigation if some electronic record is produced
by any witness, the same may be procured with a certificate under 65 B (4) as
mentioned above.
(b) Seizure of the computer (in case it is required) by the board of officer.
(c) Ensure no tampering with the produced electronic record and the same
to be kept in the safe custody along with log register containg the details of
handling .
(d) In case there is an element of doubt as to the veracity, it may be send
officially for forensic examination.
 137

(e) All the witnesses connected with the electronic record may be
examined.
(f) Must bring on the record of the report through competent witnesses
about the reliability, integrity and usability of the electronic record.
24. Suggested Actions : For The Jury In A Trial.
(a) Admission of such evidence will be as per the sec 65A and 65B and
there shall be no diversion on this issue.
(b) Ascertain the reliability, integrity and usability of the electronic evidence
produced before the court.
(c) When the question would arise as to the genuineness of the electronic
record, the Court must make a report to examine experts under sec 45 A.
(d) The Court if possible must corroborate the such Evidence
Conclusion
25. The main objective to introduce the specific provision has its origin to the
technical nature of the evidence particularly as the evidence in the electronic form
cannot be produced in the court of law owing to the size of computer/server, residing
in the machine language and thus, requiring the interpreter to read the same. Due to
enormous growth in e-governance throughout the Public & Private Sector, Electronic
Evidence have involved into a fundamental pillar of communication, processing and
documentation. These various forms of electronic evidence are increasingly being
used in both Civil, Criminal Litigations and at the Court Martial. During trials, the
courts are often asked to rule on the admissibility of electronic evidence and it
substantially impacts the outcome of civil law suit or conviction/acquittal of the
accused. The Court continue to grapple with this new electronic frontier as the
unique nature of e-evidence, as well as the ease with which it can be fabricated or
falsified, creates hurdle to admissibility not faced with the other evidences. The
various categories of electronic evidence such as website data, social network
communication, e-mail, SMS / MMS and computer generated documents poses
unique problem and challenges for proper authentication and subject to a different
set of views. The evidence relating to electronic record being a special provision, the
general law on secondary evidence under Section 63 read with Section 65 of the
Evidence Act shall yield the same. “Generaliaspecialibus non derogant,” i.e.,
special law will always prevail over the general law. It appears, the court
omitted to take note of Sections 59 and 65A dealing with the admissibility of
electronic record. Section 63 and 65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly governed by Section 65A
and 65B.
 138

26. To that extent, the statement of law on admissibility of secondary

evidence pertaining to electronic record, as stated by the court in Navjot Sandhu’s
case, does not lay down the correct legal position. It was required to be over
ruled. Thus “Any documentary evidence by way of an electronic record under the
Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with
the procedure prescribed under Section 65B. Section 65B deals with the admissibility
of the electronic record. The purpose of these provisions is to sanctify secondary
evidence in electronic form, generated by a computer”. Only if the electronic record is
duly produced in terms of the provisions of Section 65B of the Evidence Act, the
other question would arise as to the genuineness thereof and in that situation, resort
can be made to Section 45A – opinion of examiner of electronic evidence.
 139

APPX – A

Censure: (AHQ (DV)

Policy letter dt 23
Apr 07 /11 Aug 17
140

APPX – A
Contd
 141
APPX – B

SUGGESTED LAYOUT OF CONVENING ORDER

1. A COURT OF INQUIRY COMPOSED AS UNDER SHALL ASSEMBLE AT

__________ (GIVE PLACE OF ASSEMBLY) ON THE DATE AND TIME TO BE
FIXED BY THE PRESIDING OFFICER TO COLLECT THE EVIDENCE IN
RESPECT OF THE CIRCUMSTANCES ________ (SET OUT IN DETAIL THE
FACTS/POINTS ON WHICH THE EVIDENCE IS REQUIRED TO BE COLLECTED)
:-

PRESIDING OFFICER : NO….. RANK …. NAME …. UNIT ……

MEMBERS : 1. NO…...RANK…..NAME ….UNIT .…..

2. -DO-

3. -DO-

IN ATTENDANCE 1. NAME, APPT, ADDRESS

(IF ANY) 2. -DO-
2. THE COURT SHALL RECORD DETAILED EVIDENCE IN RESPECT OF
THE CIRCUMSTANCES UNDER WHICH _________ AND PINPOINT
RESPONSIBILITY AGAINST PERSON(S) CONCERNED.

3. PROVISIONS OF AR 180 SHALL BE COMPLIED WITH, WHEREVER

NECESSARY.
4. OC _________ SHALL BE RESPONSIBLE FOR MAKING ALL
ADMINISTRATIVE ARRANGEMENTS CONCERNING THE ASSEMBLY OF THE
COURT, PROCURING ATTENDANCE OF ALL THE WITNESSES, PROVISION OF
TYPEWRITERS, STATIONERY, CLERKS AND TRANSPORT FOR THE
WITNESSES.
5. THE PROCEEDINGS DULY COMPLETED IN ALL RESPECT IN (ORIGINAL
AND ___ TYPED COPIES) SHALL BE FORWARDED TO HQ _________ FOR
CONSIDERATION OF THE CONVENING AUTHORITY.

PLACE : (NAME)
COL

DATED : COL A
FOR GOC
 142

APPX- B-1

SUMMONS TO CIVILIAN WITNESSES

IAFD-919C

To,

……………

……………

……………

Whereas a Court of Inquiry has been ordered to assemble at _________

on the _____ day of _________ 2001 for investigating into
___________________. I do hereby summon and require you ____________ to
attend as a witness at the sitting of the said Court at _______ (place) on the
______ day of _________2001, at ______ hours, and to bring with you the
documents mentioned, namely __________ and so to attend from day to day
until you shall be duly discharged, whereof you shall fail at your peril.

Given under my hand at _______ on the _______ day of 2001.

Sig

(Officer Assembling the C of I)

 143

APPX- B-2

SAMPLE OF COURT OF INQUIRY

INDEX SHEET

Serial Contents Pages

Number
From To

1. Convening Order - -

2. List of Witnesses - -

3. List of Exhibits - -

4. IAFD-931 - -

5. Invoking Army Rule 180 - -

6. Statement of Witness Number 1 - -

7. Statement of Witness Number 2 - -

8. Statement of Witness Number 3 - -

9. Statement of Witness Number 4 - -

10. Findings of the Court - -

11. Opinion of the Court - -

Presiding Officer ___________

 144

APPX- B-2
Contd

LIST OF WITNESSES

S No Army No Rk Name Appt/Duties performed

1. 10601213L Sep ABC Dvr
2. No 1513186F Nk DEF Co-dvr
3. IC-12345L Maj GHI MTO, 55 SIKH LI
4. Dandaman
1546789 Sep LKJ
( AND MANY OTHER WITNESSES)

LIST OF EXHIBITS

No of
Ser No Subject/Particulars Att as Produced by
Pages
1. Car Diary Exhibit No 1 W-1 (Sep ABC)
Layout and photographs of site
2. Exhibit No 2
of accident and accident veh W-3 (Maj GHI)
3. Death Cert Exhibit No 3 (and other
4. FIR Exhibit No 4 relevant
exhibits)
Photocopy of Initial report and
5. Exhibit No 5
Detailed report

Presiding Officer ___________

 145
APPX- B-2
Contd

In lieu of IAFD-931

Proceeding of : Court of Inquiry

Assembled at : 55 SIKH LI

On the day of : February 2016

By order of : Station Headquarters, _______ convening order

number 12111/A dated _____ February 16.

For the purpose of to investigate into the circumstance under which

accident between veh BA No
__________________driven by No ________ Rank
___ Name _______ of _____ and civ motorcycle No
________________driven by
______________occurred at ______ causing
grievous injury to ___________of _________which
subsequently resulted to the __________________.

Presiding Officer : IC-123456L Colonel XYZ)

(777 Field Regiment )

Members 1. IC-17895M Major TYU)

(777 Field Regiment)

2. IC-168975Y Lieutenant CYU

(333 Medium Regiment)
 146
APPX- B-2
Contd

1. The Court having assembled, pursuant to order, proceeded to examine the

witnesses are as under:-

Presiding Officer : __________________

IC-123456L Colonel XYZ
(777 Field Regiment )

Members 1. ___________________
(IC-17895M Major TYU)
(777 Field Regiment)

2. _______________________
(IC-168975Y Lieutenant CYU
(333 Medium Regiment)
 147
APPX- B-2
Contd
INVOKING ARMY RULE-180

1. From the terms and references of the Court of Inquiry the Court opined that
the military character and reputation of personnel detailed for the veh involved in the
accident BA No 00Q 001215WX (ALS) ie No 10601213L Sep ABC, driver of veh,
1513186F Nk DEF, Co-driver of the vehicle and No 1546789 Sep LKJ, dandaman
are likely to be affected.* (Once the first witness produces records related to
incidents and after referring the same the Court may call these witnesses)
2 Thus, keeping in view the provisions of AR 180 and principles of natural
justice in all fairness the Court decides to invoke AR 180 in r/o of the following :-
[
(a) No 10601213L Sep ABC, driver of veh.

(b) No 1513186F Nk DEF, Co-driver of the vehicle.

3. Accordingly No 10601213L Sep ABC, driver of veh, and No 1513186F Nk
DEF, Co-driver of the vehicle are called before the court ,The proceedings occurred
in the absence of these witnesses are shown/read over (alongwith exhibits). The
following rights in terms of AR 180 are explained to them :-
(a) To be present throughout the Inquiry.
(b) To cross examine any witness he may wish to.
(c) To make any statement.
(d) To call any witness in defence.
(e) To produce any evidence in defence.

4. The above stated indls confirmed that they have understood the rights
mentioned at Para 3 above.
Presiding Officer : __________________
(IC-123456L Colonel XYZ)
(777 Field Regiment)
Members 1. ___________________
(IC-17895M Major TYU)
(777 Field Regiment)
2. _______________________
(IC-168975Y Lieutenant CYU)
(333 Medium Regiment)

3. ––––––––––––––––––––––––
(No 10601213L Sep ABC)
Driver of the veh
4. _________________
(No 1513186F Nk DEF)
Co-driver of the vehicle

*Note:-The Court must examine its first witness who is custodian of records relating to
incidents. The para for invoking Army Rule 180 to be applied by the Court at any time during
the proceedings and only against those persons subject to Army Act whose military character
and reputation are likely to be effected by statement of witness(es) during the Court of
 148

APPX- B-2
Contd

Witness Number 1

1. I, Number 10601213L Sep ABC of 55 SIKH LI having been duly warned state
that:-

2. I am posted with 55 SIKH LI since August 2012 and have been performing the
duties of driver Motor Transport (MT)---------------------------------------------------------------
----------------------------------------------------------------------

3. On 12 February 2016, I was detailed for collection of stores from my

Regiment location at-------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
------------------------------------------------------------(Copy of Card diary attached as
Exhibit I).

Questions by the Court

Q 1. --------------------------
Ans. --------------------------
Q 2. -------------------------
Ans. ------------------------

CROSS EXAMINATION

4. In terms of AR 180, No 1513186F Nk DEF, co-driver of the veh is given an

opportunity to cross examine witness No 1( No10601213L Sep ABC, Driver of the
veh).

5. No1513186F Nk DEF declined to cross examine the witness No 1.

6 The above statements along with questions & answers have been read over
to me in the language I understand & I sign it as correct.
_____________________________________________

(Signature of No 10601213L Sep ABC) WitnessNo 1

_________________
(No 1513186F Nk DEF)
Co-driver of the vehicle
 149

APPX- B-2
Contd

7. The provisions of AR 180 have thus been complied with in respect of witness
No 1 and No 1513186F Nk DEF.

Presiding Officer : ____________________

(IC-123456L Colonel XYZ)
(777 Field Regiment)

Members 1. ___________________
(IC-17895M Major TYU)
(777 Field Regiment)

2. _______________________
(IC-168975Y Lieutenant CYU)
(333 Medium Regiment)
Witness No 2

1. I, No 1513186F Nk DEF of 55 SIKH LI having been duly warned state that:-

2. On 12 February 2016, at about 2130 hours, I was detailed by Company

1513186 Nk DEF as co-driver to bring company stores back from Regiment location
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------- Copy of Layout and photographs of site
of accident and accident veh attached as Exhibit II).

3. -------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
-----------------------------------------------

Questions by the Court

Question. No 1---------------------------

Answer No 1----------------------------
Question. No 2-----------------------------
Answer No 2-----------------------------
 150

APPX- B-2
Contd

CROSS EXAMINATION OF WITNESS NO 2 BY WITNESS NO 1(NO 10601213L

SEP ABC)

4 Under the provision of Army Rule 180 No 10601213L Sep ABC of 55 SIKH LI
was afforded opportunity to cross examine the witness No 2 and he proceeds to ask
the following questions. .
Question. No 1----------------------------------
Answer No 1----------------------------------
Question. No 2----------------------------------
Answer No 2---------------------------------

Question. No 3----------------------------------
Answer No 3----------------------------------

6 The above statements along with questions & answers have been read over
to me in the language I understand & I sign it as correct.
7. The provisions of AR 180 have thus been complied with in respect of witness
No 1 and 2 respectively.

__sdxxxx________________
(No 1513186F Sep ABC)
Witness no 1

__sdxxxx________________
(No 1513186F Nk DEF)
Witness no 2

Presiding Officer : ____________________

IC-123456L Colonel XYZ)

Members 1. __________________
(IC-17895M Major TYU)

2. _______________________
(IC-168975Y Lieutenant CYU)
 151

APPX- B-2
Contd

Witness Number -3

1. I, IC- 12345L Maj GHI, 55 SIKH LI, having been duly warned state the
following:-

2. On 12 February 2016 at around -------- hours, MTO, 55 SIKH LI informed me

about the incident. I immediately instructed the Officer Commanding,---------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
--------------------------------------------- Copy of death cert and FIR attached as Exhibit
III & IV respectively).

3. -------------------------------------------------------------------------------------------------------
-----------(Copy of initial report and Detailed report Exhibit V).

Questions by the Court

Question. No 1---------------------------------------
Answer No 1--------------------------------------

Question. No 2---------------------------------------
Answer No 2--------------------------------------
CROSS EXAMINATION BY WITNESS NO-1
4. In terms of AR 180, No 10601213L Sep ABC, driver of the veh is given an
opportunity to cross examine witness No 3(IC- 12345L Maj GHI).
5. No 10601213L Sep ABC declined to cross examine the witness No 3.
CROSS EXAMINATION BY WITNESS NO-2
In terms of Army Rule 180 witness no 2 was afforded opportunity to cross examine
the witness No 3 and he proceeds to ask the following questions. .

Question. No 1---------------------------------
Answer No 1--------------------------------
Question. No 2---------------------------------
Answer No 2---------------------------------
 152

APPX- B-2
Contd

6 The above statements along with questions & answers have been read over
to me in the language I understand & I sign it as correct.

IC- 12345L Maj GHI

Witness No 3

7. The provisions of AR 180 have thus been complied with .

__sdxxxx________________
(No 1513186F Sep ABC)
Witness no 1

__sdxxxx________________
(No 1513186F Nk DEF)
Witness no 2

Presiding Officer : ____________________

(IC-123456L Colonel XYZ)
(777 Field Regiment )

Members 1. ___________________
(IC-17895M Major TYU)
(777 Field Regiment)

2. _______________________
(IC-168975Y Lieutenant CYU)
(333 Medium Regiment)

##NOTE:- IN THE SAME MANNER THE PROCEEDINGS WILL GO ON AND THE COURT WILL
COMPLY WITH THE PROVISIONS OF AR 180 INCASE CHARACTER AND MIL REPUTATION
OF ANY FURTHER WITNESS(S ) (YET TO BE EXAMINED) COMES UNDER QUESTION. IN SUCH
CASES ENTIRE PROCEEDING OCCURRED IN THE ABSENCE OF ANY SUCH WITNESS(S) WILL
BE SHOWN AND READ OVER TO HIM, BEFORE PROCEEDING FURTHER.
 153

APPX- B-2
Contd

CERTIFICATE FOR COMPLIANCE OF AR 180

It is certified that the provisions of AR 180 have been complied with in respect
of following witnesses during the entire Court of Inquiry proceedings.

1.
(No 106012L Sep ABC, Driver)

2. _____
(No 1513186F Nk DEF, Co-driver)

3.(anyother witness(s)
(xxxxxxxxxxxxxxxxxxxxxx)

Presiding Officer : _____________________

(IC-123456L Colonel XYZ)
(777 Field Regiment)

Members 1. ___________________
(IC-17895M Major TYU)
(777 Field Regiment)

2. _______________________
(IC-168975Y Lieutenant CYU)
(333 Medium Regiment)
 154

APPX- B-2
Contd

FINDINGS OF THE COURT

1. After going through the entire proceedings and the statements of the
witnesses---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------:-

(a)

(b)

Presiding Officer : _____________________

(IC-123456L Colonel XYZ)
(777 Field Regiment)

Members 1. ___________________
(IC-17895M Major TYU)
(777 Field Regiment)

2. _______________________
(IC-168975Y Lieutenant CYU
(333 Medium Regiment)
 155

APPX- B-2
Contd

OPINION OF THE COURT

1. After careful examination of the statement of all the witnesses, cross

questioning by the court, inspection of the site and the vehicles involved in the
incident and interaction with civilian and police representatives post the incident, the
court opines the following:-

(a) ----------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------

(b) ----------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------

Presiding Officer : _____________________

(IC-123456L Colonel XYZ)
(777 Field Regiment)

Members 1. ___________________
(IC-17895M Major TYU)
(777 Field Regiment)

2. _______________________
(IC-168975Y Lieutenant CYU)
(333 Medium Regiment)
156

APPX -C
157
APPX- C
Contd
158
APPX- C
Contd
159

APPX- C
Contd
 160

APPX- D

SUMMARY PUNISHMENTS AWARDABLE TO ORs BY CO

S Type of Award Award Auth- Type Remarks Limit/Restrictions

No Punish- -able -able ority of
ment to by Entry

1. Imprison Sep/ CO/Offr Army Red Ink Punishme (i) The punishments mentioned in Sec
-ment in Rect specifie Act nt not 80 can be awarded in full only by an
military d by Sec awardable officer not below the rank of Major
custody COAS 80(a) to person [Army Rule 192 (i)].
upto 28 with and 81 who was (ii) An officer below the rank of Major
days consent (read an NCO/ may award punishment of
of the with acting Imprisonment [Sec 80 (a)] and
Central AR NCO (incl Detention [Sec 80(b)] only upto 7
Govt. 192) L/Nk) at days, However an officer not less than
[RA the time of a Div Cdr, may empower such officer
Para commissio to award the Imprisonment and
443(a)] n of Detention to the full extent [Army Rule
offence or 192 (ii)].
at the time (iii) The punishments at Ser No 1,2
of trial and 3 if awarded conjointly or when
[Army Act already undergoing one or more of the
Sec 81 (4)] said punishments, the whole extent of
2. Detention Sep/ -do- Army Red Ink -do- the punishments shall not exceed in
upto 28 Rect Act the aggregate 42 days [Army Act Sec
days Sec 81(3)].
80(b) (iv) If punishments at Ser No 1,2,3,4
and 81 awarded together, Punishments at
(read Ser No 3 and 4 will take effect after
with the punishments at Ser No 1 and 2
AR [Army Act Sec 81(2)].
192) (v) Punishments at Ser No 1,2,3 are
3. Confine- Sep/ -do- Army Red Ink, -do- not awardable to an NCO or Acting
ment to Rect Act if punish- NCO or a person who was an
lines Sec ment NCO/Actg NCO at the time of
upto 28 80(c) exceeds commission of the offence [Army Act
days and 81 14 days Sec 81(4)].
confine- (vi) Punishments at Ser No 1 and 2
ment will commence from the date of award
otherwis and ends at sunset of the last day.
e Black (vii) Punishment at Ser 3 & 4 may also
ink be awarded by Coy Cdr/Adjt/Camp
Extra All -do- Army Black ink Comdt when so auth by CO, upto 10
4. guards Act days and 3 duties respectively.
or duties Sec
80(d)
and 81
 161

APPX- D
Contd

5. (a) De- All All CO/Offr Army Act Red ink

privation of specified Sec - -
a position by COAS 80(e)
of the with and 81
nature of consent of
an appt, the
or Central
(b) De- Govt. [RA
privation of Para
corps or 443(a)]
working
pay

6. (a) De- NCO -do- Army Red Ink If awarded by an -

privation Act Sec officer below the
of acting 80(e) rank of Major, then
rank, and 81 the reduction
or (Read would be to
(b) with AR immediately
Reduction 192) next lower grade
to a lower of pay and shall
‘grade’ of not be effective for
pay more than 1 yr
(Army Rule 192)

7. Forfeiture
of good All -do- Army Act Red ink - -
service 80(f)
and good
conduct
pay
8. Severe NCO CO/Offr Army Red ink Cannot be awarded
Reprimand specified by Act Sec to a person who
COAS with 80 (g) held the rank of
consent of NCO/acting NCO
the Central (incl L/Nk) at the
Govt. [RA time of commission
Para of the offence but
443(a)] was a sep (due to
relinquishing the
9. Reprimand NCO Army Black rank in between) at
Act Sec Ink the time of the trial
80(g)
and 81
 162

APPX- D
Contd

10. Fine All -do- Army Black

upto 14 Act ink
days Sec 80
pay in (h)
any
one
month

11. Penal All -do- Army Black Any sum required While executing the
deducti Act ink to make good any punishments it must be
ons Sec expenditure ensured that the
under caused by him or deductions to be made
Army 80 (i) any loss or from the pay and
Act damage/destructi allowances do not exceed
Sec 91 on done by him in one half of his pay and
(g) arms/amn/expend allowances in that month.
iture/bills/clothing/
mil decorations [AA Sec 94]
and property shall
be awarded.

12. Extra Sep/R CO/Offr Army Black No other officer, other than
Drill for ect specified Act ink the Commanding Officer of
two by COAS Sec 82 the accused can award this
hours with read punishment. [RA Para 443
a day consent of with (b)]
upto the RA
15 Central Para
days Govt. [RA 443(b)
Para
443(a)]

13. Reduct All - do - Army Black For an offence involving

ion to a Act ink idleness and negligence in
lower Sec 82 accordance with the
`class’ read following table:-
of pay with if mustered in group may be --
for a RA ara A to E : Class 1 to Class 2 in
period 443(b) the same group
of 28 A to E : Class 2 to class 3 in
days the same group
A : Class 3 to the class in
lower group from which
mustered
B to E: Class 3 to class 4 in
the same group
 163

APPX- E

SUMMARY PUNISHMENTS AWARDABLE TO ORs BY THE COY CDR AND OTHERS

Ser Type of Awardabl Award- Authority Type of Remarks Limitation/

No Punish- e to able By
ment Entry Restriction

1. Confine Sep/Rect Sqn/ RA para 443 Black Defaulters will be required

ment to /Bty/ (a) (xiii) ink to answer to their names at
the lines Coy or uncertain hours through out
not other the day and will be
exceed- equiva- employed on working
ing 10 lent parties to the fullest
days comma practicable extent with a
nder or view to relieving well
Adjutant conducted soldiers
or therefrom. Defaulters will
Registra attend parades and take all
r of a duties in regular turn. When
MH or the working parties required
Camp are not sufficient to keep the
Comdt defaulters fully employed
of a Div they may be ordered to
HQ attend extra drill, which will
be limited to one hour a day
and will include some form
of useful instructions. [RA-
para 443 (a) (xiii)]

2. Extra All -do- RA para Black For minor offences on these

Guards 443(a) (xiii) ink duties
or
piquet’s
upto a
limit of
three
such
duties
for any
one
offence
 164

APPX- F

POSSIBLE COMBINATION OF SUMMARY PUNISHMENTS (ORs).

(RA Sec 80 r/w Sec 81 and RA Para 443)

1. In case of NCOs (incl L/Nk)

(a) Any one or more of the following punishments

(i) Severe reprimand or Reprimand;

(ii) Extra guards or extra duties;
(iii) Deprivation of a position of the nature of an appointment, or
Deprivation of corps or working pay, or
Deprivation of acting rank ,or
Reduction to a lower ‘grade’ of pay;
(iv) Forfeiture of good service and good conduct pay;
(v) Fine upto 14 days pay in any one month; and
(vi) Penal deductions under Army Act Sec 91(g) [Stoppages to
make good any losses /damage caused]

2. In the case of a Sepoy/Rect

(a) The following may be awarded independently or together, subject

to the restriction that the total period does not exceed 42 days:-.

(i) Imprisonment in military custody upto 28 days

(ii) Detention upto 28 days
(iii) Confinement to lines upto 28 days.
(b) In addition to, or independent of, the above the CO may award
one or more of the following punishments:-

(i) Extra guard or duties ;

(ii) Deprivation of corps or working pay;
(iii) Forfeiture of good service and good conduct pay;
(iv) 14 days pay fine in any one month;
(v) Stoppages under section 91(g) of the Army Act;
(vi) Reduction to a lower ‘class’ of pay [ RA Para 443(b)]
upto 28 days; and
(vii) Extra dill for 2 hrs a day upto 15 days [ RA Para 443 (b)].
 165

APPX- G

SUMMARY PUNISHMENTS AWARDABLE TO A PERSON, WHO WAS NCO

(INCL L/NK OR ACTING NK) AT THE TIME OF COMMISSION OF OFFENCE BUT
WHO SUBSEQUENTLY BECAME A SEP AT THE TIME OF SUMMARY TRIAL

(AA Sec 80 r/w Sec 81 and RA Para 443)

1. Extra guard or extra duty.

2. Deprivation of Corps Pay or Working Pay.

3. Forfeiture of good service and good conduct pay

4. Fine upto 14 days in any one month.

5. Penal deductions (Stoppages of pay and allowances to make good

loss etc.

6. Extra drill or duty for two hours.

7. Reduction to a lower ‘class’ of pay upto 28 days.

166

APPX- H
 167

APPX- J

SAMPLE PROCEEDINGS OF S OF E
INDEX

Ser Page No
Particulars
No From To
1. Index (i) (i)
2. List of Prosecution Witnesses (ii) (ii)
3. List of Documentary Exhibits (iii) (iii)
4. List of Documentary Appendices
(iv) (iv)
and Sketch
5. List of Accused and Defence
Witnesses
6. Original copy of the order of the
Commanding Office to record
Summary of Evidence.
7 Statement of Prosecution Witnesses
(i) No 1513186F Nk AAA
(ii) IC-12345L Maj BBB
(iii) 10601213L Sep CCC
8. Statement of Accused
9. Cautioning of Accused as per
Army Rule 23 (1), (2), (3), (4) & (5)
10 Concluding Certificates
11. Documentary Exhibits
12. Documentary Appendices

LIST OF PROSECUTION WITNESSES

PW No Army No Rk Name Appt/Duties performed

1. No 1513186F Nk AAA Co-dvr
2. IC-12345L Maj BBB Adjut, 500 Army Avn Sqn (R&O)
3. 10601213L Sep CCC Statement of accused

LIST OF EXHIBITS
Ser No of
Subject/Particulars Att as Produced by
No Pages
1. Photocopy of Main Gate Gd Register Exhibit No 1 Nk AAA (PW-1)
Layout and photographs of site of
2. Exhibit No 2
accident and accident veh
3. Death Cert Exhibit No 3
Maj BBB (PW-2)
4. FIR Exhibit No 4
Photocopy of Initial report and
5. Exhibit No 5
Detailed report
 168
APPX- J
Contd

SUMMARY OF EVIDENCE RECORDED ON ORDER OF COL XYZ,

COMMANDING OFFICER OF 500 ARMY AVN SQN (R&O) IN R/O NO 106012L
SEP CCC SINGH500 ARMY AVN SQN (R&O))

Prosecution Witness No - 1

1. No 1513186F Nk AAA of 500 Army Avn Sqn after having been duly warned
states that.

2. I, No 1513186F Nk AAA was detailed for guard duty – -- -- ------------------------

----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
-----------------------. (The photocopy of main gate veh in-out register for the date of 05
Aug 2016, duly compared with the original document and signed by the Offr
Recording S of E is att with the S of E as Exhibit No-1).

CROSS EXAMINATION BY THE ACCUSED

3. “The accused is given opportunity to cross examine the PW-1. The accused
desires to cross examine the PW-1 in question-answer form.

Question No. 1 ----------------------------------------------------------------

Answer No. 1. ----------------------------------------------------------------

Question No .2 ----------------------------------------------------------------
Answer No 2 ----------------------------------------------------------------

4. The above statements have been read over to me in the language I

understand and I sign it as correct..

__________________________ __________________
(No 106012L Sep (Dvr/MT) CCC) (No 1513186F Nk AAA )
The accused PW-1

_______________________ _________________
(JC-14861319L Sub DDD) (IC-123456 Maj ABC)
Independent Witness Offr Recording S of E
 169

APPX- J
Contd

SUMMARY OF EVIDENCE RECORDED ON ORDER OF COL XYZ,

COMMANDING OFFICER OF 500 ARMY AVN SQN (R&O) IN R/O NO 106012L
SEP CCC SINGH500 ARMY AVN SQN (R&O))

Prosecution Witness No - 1

1. No 1513186F Nk AAA of 500 Army Avn Sqn after having been duly warned
states that.

2. I, No 1513186F Nk AAA was detailed for guard duty – -- -- ------------------------

----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
-----------------------. (The photocopy of main gate veh in-out register for the date of 05
Aug 2016, duly compared with the original document and signed by the Offr
Recording S of E is att with the S of E as Exhibit No-1).

CROSS EXAMINATION BY THE ACCUSED

3. “The accused is given opportunity to cross examine the PW-1. The accused
desires to cross examine the PW-1 in question-answer form.

Question No. 1 ----------------------------------------------------------------

Answer No. 1. ----------------------------------------------------------------

Question No .2 ----------------------------------------------------------------
Answer No 2 ----------------------------------------------------------------

4. The above statements have been read over to me in the language I

understand and I sign it as correct..

__________________________ __________________
(No 106012L Sep (Dvr/MT) CCC) (No 1513186F Nk AAA )
The accused PW-1

_______________________ _________________
(JC-14861319L Sub DDD) (IC-123456 Maj ABC)
Independent Witness Offr Recording S of E
 170
APPX- J
Contd

Prosecution Witness No - 2

1. IC-12345L Maj BBB of 500 Army Avn Sqn (R&O) after having being duly
cautioned states that.

2. I, IC-12345L Maj BBB, presently performing the duties of Offr-in-Charge 500

Army Avn Sqn (R&O)------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
--------------------------------------- The layout and photographs has been produced as.
(Exhibit No-2).

3. ------------------------------------------------------------------.-------------------------------------
----------------------------------------------------------------------------------------------------------------
---------------------------- (The death cert of Hav Ankus has been Produced as Exhibit
No-3).

4. The First Information Report was lodged on the same day of accident i.e. 05
Aug 2016. The First Information Report is submitted herewith. (The First Information
Report has been produced as Exhibit No-4). ----------------------------------------------------
----------------------------. (The photocopy of initial report and detailed report of the cas
has been produced as Exhibit No-5)

CROSS EXAMINATION BY THE ACCUSED

“The accused No 106012L Sep CCC declined to cross examine the witness.”

The above statement has been read over to IC-12345L Maj BBB in the
language he understands and he sign it as correct.

_______________________ _______________
(No 106012L Sep (Dvr/MT) CCC) (IC-12345L Maj BBB)
the accused PW-2

____________________ ________________
(JC-14861319L Sub DDD) (IC-123456 Maj ABC)
Independent Witness Offr Recording S of E
 171
APPX- J
Contd

COMPLIANCE OF ARMY RULE 23 (3)

1. After recording the statement of all the prosecution witnesses, the accused
No 106012L Sep CCC is hereby warned as under in terms of Army Rule 23(3) by the
officer recording the S of E in the presence of Independent witness JC14861319L
Sub DDD..
‘Do you wish to make any statement? You are not obliged to say
anything unless you wish to do so, but whatever you say will be taken
down in writing and may be given in evidence’.
2. The accused has elected to make a statement.
STATEMENT OF THE ACCUSED: NO-106012L SEP CCC OF 500 ARMY AVN
SQN (R&O)
3. I, No 106012L Sep CCC was posted to this unit on 05 Oct 2015. I have
always made an endeavor to abide by the orders of my seniors and always worked
as per the expectations of my seniors.
4. On 05 Aug 16, at around 1130h, ------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
5. -------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
6. The above statement has been read over to No 106012L Sep CCC in the
language he understands and he signs it as correct in the presence of independent
witness JC-14861319L Sub DDD.
___________________________
(No 106012L Sep (Dvr/MT) CCC) (IC-123456 Maj ABC)
The accused Offr Recording S of E
___________________
(JC-14861319L Sub DDD)
Independent Witness

After recording the statement of the accused or after affording the opportunity to give
statement in his defence the accused is hereby given full opportunity to call any
witness in his defence or to bring any evidence in his defence. The accused
declines to call any witness in his defence or to bring any evidence in his
defence.
______________________
(No 106012L Sep (Dvr/MT) CCC) (IC-123456 Maj ABC)
The accused Offr Recording S of E

______________________
(JC-14861319L Sub DDD)
Independent Witness
 172
APPX- J
CERTIFICATE Contd

1. It is certified that while recording summary of evidence in the case of No

106012L Sep CCC, provisions of AR 23 (1), (2), (3), (4) & (5) have been duly
complied with.

2. I certify that foregoing summary of evidence consisting of __ pages (incl

Exhibits to ) was recorded by me personally at (500 Army Avn Sqn (R&O),
c/o 56 APO from _Jul 2016 and subsequent days in the presence of accused No
106012L Sep CCC and independent witness JC- 14861319L Sub DDD.

____________________________ _______________________
JC-14861319L Sub DDD IC-123456 Maj ABC
Independent Witness Offr Recording S of E

01 Aug 2016 01 Aug 2016

CERTIFICATE

It is certified that full explanation of the charge (ref tentative charge sheet), the
purpose of summary of evidence and rights of the accused have been explained by
the undersigned to No 106012L Sep CCC prior to commencement of recording of
the summary of evidence in the presence of independent witness JC-14861319L
Sub DDD.

__________________________
(No 106012 Sep (Dvr/MT) CCC) (IC-123456 Maj ABC)
The accused Offr Recording S of E

01 Aug 2016 01 Aug 2016

_____________________
(JC-14861319L Sub DDD)
Independent Witness

01 Aug 2016
173

APPX- K
174

APPX- L
175
APPX- M
176
APPX- M
Contd
177

APPX- M
Contd
178

APPX- M
Contd
179

APPX- M
Contd
180

APPX- M
Contd
181

APPX- M
Contd
182

APPX- M
Contd
183

APPX- M
Contd
184
APPX- M
Contd
185

APPX- M
Contd
186

APPX- M
Contd
 187

APPX- N

In lieu of IAFD- 907

SCM PROCEEDINGS ON PLEA OF NOT GUILTY

Proceedings of a summary court-martial held at Field on Friday the 18th day of

Aug 2016 by IC-11111P Col Smart Commanding 50Sikh Regiment for the trial of all
such accused persons as he may duly have brought before him.
Present
IC-11111P Col Smart , Commanding 50Sikh Regiment
Attending the Trial
IC- 2222P Maj Ram, 50Sikh Regiment
JC-3333L Sub Shyam, 50 Sikh Regiment
Friend of the accused
IC-4444A Capt Bram, 50Sikh Regiment
Interpreter
IC-11111P Col Smart, Commanding 50 Sikh Regiment

The Officer* and Junior Commissioned Officer assemble at the 50 Sikh

Regiment and the trial commences at 1000hrs.
The accused No 66666X Sep Kela Kumar of the 50 Sikh Regiment is brought
(“called” if a non-commissioned officer) into court.
IC-1111P Col Smart, is duly sworn * (affirmed).
IC-1111P Col Smart, is duly sworn * (affirmed) as Interpreter.
All witnesses are directed to withdraw from the Court.
Instructions :-
1. Enter rank and name of officer holding the trial. He will be referred to
as “The Court” throughout the SCM Proceedings.
2. If the CO acts as interpreter, he must take interpreter’s oath also.
3. For attaching documents to SCM Proceedings, refer to para 35.
4. Also consult form of SCM Proceedings on pages 425 to 429 of MML,
1983, Vol , II.
*5. The court should strike out inapplicable portions and initial all cuttings.
6. Modify the form as per the requirement.

1. If the accused pleads, guilty to any charge the provisions of AR 115 (2) and
115 (2A) must be complied with.
2. The questions and answers are to be numbered consecutively throughout in a
single series.
 188

APPX- N
Contd

The charge sheet is read (translated) and explained to the accused, marked
“B-2”, signed by the Court and attached to the proceedings.

Instructions: -

The sanction of superior authority for trial by SCM should be entered with the
date and signature of that authority, or of a staff officer on his behalf, at the foot of
the charge sheet, when such sanction is necessary, See S. 120 (2).

ARRAIGNMENT

Q. 1- Question to the accused By the Court- How say you No 66666X Sep Kela
Kumarof the 50 Sikh Regiment are you guilty or not guilty of the charge preferred
against you?

A.-1. Answer by the accused Not Guilty

Sd/-
66666X Sep Kela Kumar
Signature of the accused

Sd/-
Smart
Col
 189

APPX- N
Contd

B-2
(The Court)

CHARGE SHEET

The accused No ,66666X Sep Kela Kumar of 50 Sikh Regt, is charged with :-

Army Act Section 41(2) DISOBEYING A LAWFUL COMMAND

GIVEN BY HIS SUPERIOR OFFICER

in that he,

at field, on 12 June 2016, when ordered by

JC-999L Sub Pyare of the same Unit to turn
out for Commanding Officer’s Parade, did not
do so.

Sd/-
Smart
Place :Allahabad Col
Commanding Officer
Date : 10 Aug 2016 50 Sikh Regiment
 190
APPX-N
Contd
C

PROCEEDINGS ON A PLEA OF GUILTY

The accused No ……………… Rank ……….. Name ……………. Of the

…………………………………………………………………………………………………
……..

(is found guilty of the charge (all the charges)

(is found guilty of the ……………….. charge, and is found not guilty of the
…………………… charges).

The summary of evidence is read (translated explained, marked

……………………
Signed by the court, attached to the proceedings.

Do you wish to make any statement in reference Question to the accused

to the charge or in mitigation of punishment?*

The accused says :- Answer

Do you wish to all witnesses as to character? Question

Smart Answer
Col
The Court

----------------------------------------------------------------------------------------------------------------
* See Army Rule, 116 (4), and Notes on page 330 and AR 54 and notes on page
299 of MML, 1983 Vol. II, IAFD 907.
 191

APPX- N
Contd
D

PROCEEDINGS ON A PLEA OF NOT GUILTY1 PROSECUTION

FIRST WITNESS FOR THE PROSECUTION

PW-1 JC-999L Sub Pyare Lal, 50 Sikh Regiment being duly affirmed2
is examined by the Court. I was serving as a Senior JCO of ‘S’
Copy 50 Sikh Regiment during ----------- ------------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

CROSS EXAMINED BY THE ACCUSED

Q.2-Question to the What wasxxxxxx xxxxxxxxxxxxxxxx?
witness

A.2- Answer by witness No,xxxxxxxxxxxx.

NO QUESTION BY COURT
The witness does not wish his statement to be read over to him
Army Rule 141 (2) Complied with.5
----------------------------------------------------------------------------------------------------------------
At 1330 hours on 18 Aug 2016, the Court adjourn, until 0900 hrs on 19 Aug 2016.6
At 0900 hrs on 19 Aug 2016, the Court re-assemble, pursuant to the adjournment; present, the
same officer holding the trial, officer and the JCO attending the trial and friend of the accused
as on 18 Aug 2016.
----------------------------------------------------------------------------------------------------------------
1. For procedure, see, AR 118 and notes, p.331, MML, Vol. II.
2. Christians, Sikhs and Jews are sworn. Hindus and Muslims are affirmed.
Note 1 to AR 45 on p. 291 of MML, Vol. II.
3. While recording evidence material effect of question and answer be recorded
unless it is essential to record verbatim. Must record identification of the
accused by the witness, See, AR 92 and notes, p. 321, of MML, Vol. II.
4. If the accused declines to cross-examine a witness for the prosecution, the fact
must be recorded.
5. The fact of compliance of ARs 141(2), (3) or (4) as the case may be must be
recorded at the conclusion of evidence of each witness.
6. Record adjournment and reassembly minute in the box as per the specimen on
this page. Short adjournments for lunch, tea break etc. need not be recorded,
see, para 127 of Notes on IM & AF Law.
 192

APPX- N
Contd
The Court observe that the accused is not present.

The friend of the accused informs the Court that the accused is suffering from fever and has
been declared unfit to attend the trial by the medical officer. He is likely to recover by 22
Aug 2016.
The Court decides to adjourn until 0800 hours on 22 Aug 2016.

----------------------------------------------------------------------------------------------------------------
At 1000 hours on 19 Aug 2016, the Court adjourn, until 0800 hours on 22 Aug 2016.
At 0800 hours on 22 Aug 2016, the Court reassemble pursuant to the adjournment, present,
the same officer holding the trial, officer and the JCO attending the trial and friend of the
accused as on 19 Aug 2016.
----------------------------------------------------------------------------------------------------------------

The friend of the accused informs the Court that the accused is fit to attend the trial.

The Court on perusal of the medical certificate satisfies itself that the accused has been
declared fit to attend the trial.

The accused is brought before the Court.

The accused submits that he is fit to attend the trial.

The Court resumes the proceedings of the trial.

SECOND WITNESS FOR THE PROSECUTION

PW-2 No. 234F Hav Rama, 3 Platoon, 50 Sikh Regiment being duly affirmed is
examined by the Court. I was serving as Platoon Havildar, 3 Platoon ‘B’
Coy, 50 Sikh Regiment during xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

CROSS EXAMINATION DECLINED BY THE ACCUSED

NO QUESTION BY THE COURT

The witness does not wish his statement to be read over to him.

Army Rule 141 (2) complied with.

 193

APPX- N
Contd
E
THE PROSECTUION IS CLOSED
Q.3- Question to the accused. Do you want to say anything in your defence ?
A.3- Answer by the accused. Yes.
DEFENCE
The accused is called upon for his defence and states :-
Sub Ram Lal, Senior JCO of ‘B’ Coy isxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

*QUESTIONS BY THE COURT UNDER ARMY RULE 118

Court reads and explains the provisions of Army Rule 118 to the accused.
The accused having understood the provisions explained to him, the Court proceeds to ask
the following questions to him :
Q.4- Question to the accused It has come in the prosecution evidence that on xx Aug
2016, you requested xxxxxxxxxxxxx xxxxx or words to
that effect. Would you like to say anything about it?

-------------------------------------------------------------------------------------------------------
* See, instructions to the court on page 423.
*Instructions to The Court
A.4- Answer by the accused Sub Ram Lal xxxxxxxxxxxxxxxx

Q.5- Question to the accused It has come in your statement that xxxxxxxx Would you
like to elaborate on it?

A.5- Answer by the accused He told me xxxxxxxxxxxxxxxx.

Q.6- Question to the accused Do you intend to call any witness in your defence.

A.6- Answer by the accused Yes

The questions and answers have been read to the accused verbatim.
1. The accused is to be questioned only to afford him an opportunity of offering an
explanation, if he so wishes where absence of such explanation would affect him adversely.
2. Questions put to the accused should be such as will enable him to explain any
circumstances appearing against him which if left unexplained may lead to his conviction.
3. Questions must not be put to the accused in order to supplement the case for the
prosecution.
4. Questions to the accused and his answers both will be recorded verbatim as far as
possible.
5. No oath shall be administered to the accused.
 194

APPX- N
Contd

FIRST WITNESS FOR THE DEFENCE

DW-1 IC-7676H Maj Bala Singh, 50 Sikh Regiment being duly

sworn1 is examined by the accused.
On xxxxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxxxxx.

CROSS EXAMINED BY THE COURT

The accused denied to have xxxxxxxxxxxxxxxxxx

RE-EXAMINATION DECLINED BY THE ACCUSED

The witness does not wish his statement to be read over to him.

Provisions of Army Rule 141 (2), (3) and (4)3 complied with.

----------------------------------------------------------------------------------------------------------------
-------
Notes : 1. Christians, Sikhs and Jews are sworn. Hindus and Muslims are affirmed.
Note 1 to AR 45 on p. 291 of MML, 1983, Vol. II.
2. If necessary the Court may cross examine and the accused re-examine a witness for
the defence.
3. The fact that Army Rule 141 (2), (3) and (4) has been complied with must be recorded
at the conclusion of the evidence of each witness.
 195
APPX- N
Contd

THE DEFENCE IS CLOSED

Reply
1st witness1

REPLY

…………………………..

…………………………..
being duly sworn (affirmed) is examined by the Court2

Sd/-
( Smart)
Col
The Court

----------------------------------------------------------------------------------------------------------------
-
Notes : 1. The Court may, if it thinks it necessary in the interest of justice, call
witnesses, in reply to the defence. This is an extreme measure and
should only be resorted to when the accused has made or elicited from
his witnesses some material to the defence, which could not reasonably
have been foreseen when the case for the prosecution was being
investigated; see AR 119 and notes and also notes 2 and 3 to AR 143,
MML, 1983, Vol. II.
2. As to reference by accused to Government Officer at a trial for desertion
etc., see AA s. 143 and note, MML, 1983, Vol II.
3. If the court does not take action as per notes 1 and 2, should delete the
page as indicated and sign.
 196

APPX- N
Contd
H

VERDICT OF THE COURT*

*Finding of
not guilty on
all charges

I am of opinion on the evidence before me the accused No. 66666X Sep Kela Kumar
of the 50 Sikh Regiment is not guilty of the charge (all the charges).
The verdict is read out and the accused released. He is to return to his duty.
Signed at …………………. This …………….. day of ………….. 19 …………….

Sd/-
( Smart)
Col
The Court

The trial closes at hrs …………… M ………………..

…………………………………………………………
Commanding the ………………………………………
(Holding the trial)

----------------------------------------------------------------------------------------------------------------
* Record on this page is to be made only when the accused is found not guilty of all the
charges.
 197

APPX- N
Contd
I

I am of the opinion on the evidence before me that the Finding of guilty accused No.
66666X Sep Kela Kumar of the 50 Sikh Regiment is guilty of the charge.

PROCEEDINGS BEFORE SENTENCE

( FROM THIS PAGE ONWARDS PROCEEDING ARE SAME AS ATT AT APPX ‘M’ )
 198

APPX- O

DECISION OF THE COMPETENT MILITARY AUTHORITY UNDER

ARMY ACT SECTION 125 READ WITH ARMY RULE 197A AND
RULE 9 OF THE CRIMINAL COURTS AND COURT-MARTIAL
ADJUSTMENT OF JURISDICTION RULES, 1978

FORM

From : (Designation and address of Competent Military Authority)

To,

The ……………………………
……………………………………
……………………………………

DISCIPLINE : No …………….. Rank …… Name …………….. Unit

………………… EXERCISE OF JURISDICTION.

Sir,

1. Whereas No …………….. Rank ……… Name ……….……….. Unit

………………… serving under my command has been brought before you on a
charge (specify charge(s) or state the offence for which charged), I, as the
Competent Military Authority by virtue of the powers vested in me under Army Act
Section 125 read with Army Rule 197A and Rule 9 of the Criminal Courts and Court-
Martial Adjustment of Jurisdiction Rules 1978 have decided that proceedings against
the above named accused (s) shall be instituted before the criminal court and that he
shall be detained in civil custody.

2. The commanding officer is accordingly directed to deliver the accused under

proper escort to you.

Yours faithfully
Name
Rank
Unit
Copy to :

The Commanding Officer

…………………………. You are directed to deliver the accused
under proper escort to the aforesaid
Magistrate/court after giving him written
notice.
 199

APPX- O
Contd

DECISION OF THE COMPETENT MILITARY AUTHORITY UNDER

ARMY ACT SECTION 125 READ WITH ARMY RULE 197A AND
RULE 5 OF THE CRIMINAL COURTS AND COURT-MARTIAL
ADJUSTMENT OF JURISDICTION RULES, 1978

FORM

From : (Designation and address of Competent Military Authority)

To,

……………………………………
……………………………………
……………………………………

DISCIPLINE : No …………….. Rank …… Name …………….. Unit

………………… EXERCISE OF JURISDICTION.

Sir,

1. Whereas No …………….. Rank ……… Name ……….……….. Unit

………………… serving under my command has been brought before you on a
charge (specify charge(s) or state the offence for which charged), I, as the
Competent Military Authority by virtue of the powers vested in me under Army Act
Section 125 read with Army Rule 197A and vide SRO 73, Rule 5 of the Jammu and
Kashmeer Criminal Courts and Court-Martial Adjustment of Jurisdiction Rules 1978
have decided that the accused (s) shall be tried by Court Martial and shall be
detained in Military Custody.

2. You are, therefore, requested to deliver the offender(s) together with a

statement referred to in sub-section (1) of section 549 of the Code of Criminal
Procedure, JAMMU AND KASHMIR SAMVAT to the representative of the
Commanding Officer (No ……… Rank ……… Name ……………… unit) who has
been directed to approach your honour/your Hon’ble Court for the purpose.

Yours faithfully
Name
Rank
Unit
 200

APPX- P

EXTRACT OF GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECRETARIAT

- HOME DEPARTMENT (Notification Jammu the 2nd March 1984)

SRO - 73 In exercise of the powers conferred by sub-section (1) of section 549 of

the Code of Criminal Procedure, 1989 (1933 AD), the Government of Jammu and
Kashmir hereby makes the following rules for the trial of the persons subject to
Military, Naval or Air Force law, or any other law relating to the Armed Forces of the
Union by a court to which the said Code applies, or by a Court-martial namely: -

1. These rules may be called the Jammu and Kashmir Criminal Courts and
Court-martial (Adjustment of Jurisdiction) Rules, 1983.

2. In these rules, unless the context otherwise requires

(a) "Commanding Officer".

(i) in relation to a person subject to military law, means the Officer Commanding
of the unit to which such person belongs or is attached ;

(ii) in relation to a person subject to Naval law, the Commanding Officer of the
Ship or Naval establishment to which such person for the time being belongs, and

(iii) in relation to a person subject to Air Force law, means the officer for the time
being in command of the Unit to which such person belongs or is attached.

(b) "Competent Air Force Authority" means the Chief of the Air Staff, the Air or
other Officer Commanding any Command, Group, Wing or Station in which the
accused person is serving, or where such person is serving, or where such person is
serving in field area, the Officer Commanding the forces or the Air Forces in the field
;
(c) "Competent Military Authority" means the Chief of Army Staff or Officer
Commanding the army, army corps, division, area, sub-area or independent brigade
in which the accused person is serving, and except in cases falling under section 69
of the Army Act, 1950 (46 of 1950) in which death has resulted, the officer
commanding the brigade or sub-area or station in which the accused person is
serving.

(d) "Competent Naval Authority" means the Chief of the Naval Staff or the Flag
Officer Commanding-in-Chief, Western Naval Command, Bombay or the Flag Officer
Commanding-in-chief, Eastern Naval Command Vishakhapatnam or the Flag Officer
Commanding, Southern Naval Area, Cochin or the Flag Officer Commanding,
Western Fleet or the Flag Officer Commanding, Eastern Fleet or Senior Naval
Officer where the accused person is serving.

3. Where a person subject to military, naval or air force, or any other law relating
to the Armed Forces of the Union for the time being in force is brought before a
Magistrate and charged with an offence for which he is also liable to be tried by a
Court Martial, such Magistrate shall not proceed to try such person or to commit the
case to the Court of Session, unless: -
 201
APPX- P
Contd

(a) He is moved thereto by a competent military, naval or air force

authority; or

(b) He is of opinion, for reasons to be recorded, that he should so proceed

or to commit without being moved thereto by such authority.

4. Before proceeding under clause (b) of rule 3, the Magistrate shall give a
written notice to the Commanding Officer or the competent military, naval or air force
authority, as the case may be, of the accused and until the expiry of a period of
fifteen days from the date of service of the notice he shall not: -

(a) Convict or acquit the accused under sections 243, 245, 247 or 248 of
Code of Criminal Procedure, 1989, or hear him in his defence under section
244 of the said code ; or

(b) Frame in writing a charge against the accused under sub section (3) of
section 251-A or 254 of the said Code ; or

(c) Make an order committing the accused for trial to the Court of Session
under section 205-D of the said Code ; or

(d) Make over the case for inquiry or trial under section 192 of the said
Code.

5. Where a Magistrate has been moved by the competent military, naval or air
force authority, as the case may be, under clause (a) of rule 3, and the Commanding
Officer of the accused or the competent military, naval or air force authority, as the
case may be, subsequently gives notice to such Magistrate that, in opinion of such
officer or authority, the accused should be tried by a Court Martial, such Magistrate if
he has not taken any action or made any order referred to in clauses (a), (b), (c) and
(d) of rule 4, before receiving the notice shall stay the proceedings and, if the
accused is in his power or under his control, shall deliver him together with the
statement referred to in sub-section (1) of section 549 of the said Code to the officer
specified in the said sub section.

6. Where within the period of fifteen days mentioned in rule 4, or at any time
thereafter but before the Magistrate takes any action or makes any order referred to
in the rule, the commanding officer of the accused or the competent military, naval or
air force authority, as the case may be, gives notice to the Magistrate that in the
opinion of such officer or authority, the accused should be tried by a Court Martial,
the Magistrate shall stay the proceedings, and if the accused is in his power or under
his control, shall deliver him together with the statement referred to in sub-section (1)
of section 549 of the, said Code to the officer specified in the said sub-section.

7. (a) When an accused has been delivered by the Magistrate under rule 5 or
6, the commanding officer of the accused or the competent military, naval or air force
authority, as the case may be, shall as soon as may be, inform the Magistrate
whether the accused has been tried by a Court Martial or other effectual proceedings
have been taken or ordered to be taken against him.
 202
APPX- P
Contd
(b) When the Magistrate has been informed under sub-rule

(i) that the accused has not been tried or other effectual
proceedings have not been taken or ordered to be taken against him,
the Magistrate shall report the circumstances to the State Government
which may, in consultation with the Central Government, take
appropriate steps to ensure that the accused person is dealt with in
accordance with law.

8. Notwithstanding anything in the foregoing rules, where it comes to the notice

of a Magistrate that a person subject to military, naval or air force, or any other law
relating to the Armed Forces of the Union for the time being in force has committed
an offence, proceedings in respect of which ought to be instituted before him and
that the presence of such person cannot be procured except through military, naval
or air force authorities, the Magistrate may by a written notice require the
commanding officer of such person either to deliver such person to a Magistrate to
be named in the said notice for being proceeded against according to law, or to stay
the proceedings against such person before the Court Martial if since instituted, and
to make a reference to the State Government for determination as to the court before
which proceedings should be instituted.

9. Where a person subject to military, naval or air force law, or any other law
relating to the Armed Forces of the Union for the time being in force has committed
an offence which in the opinion of competent military, naval or air force authority, as
the case may be, ought to be tried by a Magistrate in accordance with the civil law, in
force or where the State Government has, on a reference mentioned in Rule 8,
decided that proceedings against such person should be instituted before a
Magistrate, the commanding officer of such person shall after giving a written notice
to the Magistrate concerned, deliver such person under proper escort to that
Magistrate.

By order of the Government of Jammu and Kashmir.

(Sd.) …………………….
Secretary to Government
Home Department
 203

APPX- Q

(PP Seventeen) Contd

GENERAL STAFF SHAKHA/GENERALS STAFF BRANCH
IN THE INDIAN ARMY (IA)
Appces :-

A - Amended list of Nodal Offrs at IHQ of MoD (Army)

B - Reporting Channel for Offrs of RTI Cell at IHQ of

MoD

C - Reporting Channel of PBOR of RTI Cell

Gen

1. Ref Interim Implementation Instrs for assigning responsibilities to the AEC and
creation of RTI org at the IHQ of MoD (Army) and subordinate fmns issued vide this
HQ letter No. 30201/1/SD-8 dt 15 Jul 08.
2. The interim RTI Org has been functioning in the IA for over a yr as per the
dirms of the COAS. Suggestions and feedbacks recd from the environment, during
the course of interim implementation have been analyzed holistically and adopted in
these instrs, based on merit.
Org

3. The competent auth has approved the org to deal with RTI cases at IHQ of
MoD (Army) and subordinate fmns and ests. The same is listed below:-

Ser Fmn Org Remark

No
1. RTI (a) Appellate Auth Pro marshal (PM)
Cell at
IHQ of (b) CPIO (DDG RTI) DDG AE to be perform the
MoD duties of DDG RTI, in addn to his own duties.
(Ar
(c) PIO (Dir RTI) One col from AEC*
* Dir RTI [Col
(d) GSO 1 (A) RTI One Lt Col from AEC (Selection
Gde)] will be resp
(e) GSO 1 (B) RTI One Lt Col from for the functioning
of RTI Cell.
 204

APPX- Q
Contd

(f)GSO 1 (Legal). One Lt Col from AEC (preferably

law qualified).
(g) Suport Staff.

(i) 06 X Clk SD (incl 02 x Dispatch Clks).

AEC Clks
(ii) 02 x Clk SD
ASC Clks.

2. HQ (a) Appellate Auth COS/Brig Adm.

Comds
less HQ
ARTRAC
(b) PIO. Brig/Col (Edn).

(c) Sp Staff. One Addl Clk (AEC)

3. HQ (a) Appellate Auth Brig Adm Only for matters

ARTRAC pertaining to HQ
ARTRAC

(b) PIO. Col A

4. Corps HQ (a) Appellate Auth. Brig A/Brig Adm.

(b) PIO. Col (Edn)/SO-1 (Edn).

(c) Sp Staff. From within existing resources.

5. Div HQ (a) Appellate Auth . Dy GOC.

[

(b) PIO. SO1/SO2 (Edn).

(c) Sp Staff. From within existing resources.

6. Bde HQ (a) Appellate Auth. Dy Ddr.

[[[[

(b) PIO. Edn Offr.

(c) Sp Staff. From within existing resources.
7. Area HQ (a) Appellate Auth. Dy GOC/Brig Adm. Wherever Dy GOC/
Brig Adm not
(b) PIO. Col GS/Edn offr. posted/ auth, the
Stn Cdr will be the
(c) Sp Staff. One addl Clk (AEC).
Appellate Auth.
8. Sub Area (a) Appellate Auth. Stn Cdr.
HQ

(b) PIO. Col GS/Edn offr.

(c) Sp Staff. From within existing resources.
 205

APPX- Q
Contd

9. Stn HQ (a) Appellate Auth.Stn Cdr.

(b) PIO. Adm Comdt.
(c) Sp Staff. From within existing resources.
10. Cat A (a) Appellate Auth. Dy Comdt/Chief Instr.
Ests
(b) PIO Col GS/SO-1 (Edn/Trg).
(c) Sp Staff. From within existing resources.
11. Cat B (a) Appellate Auth. Dy Comdt/Chief Instr
Ests
(b) PIO Col GS/SO-1 (Edn/Trg).
(c) Sp Staff. From within existing resources.
12. Regtl (a) Appellate Auth. Dy Comdt.
Centres
(b) PIO Col GS/SO-1 (Edn/Trg).
(c) Sp Staff. From within existing resources.
13. Records (a) Appellate Auth. Dy Comdt Regtl Centre Less Record
Offices Offices which do
(b) PIO. GSO-1 (Edn/Trg) not have a Regt
(c) Sp Staff. From within existing resources. Centre, for whom
Appellate Auth
will be the same
as for the
Area/Sub Area
HQ, whichever is
Co-loc.
14. Army (a) Appellate Auth. Comdt.
Base
Wksp/Ad
v Base
Wksp
(b) PIO. 2IC/Adm Offr.
(c) Sp Staff. From existing resources.
15. CODs (a) Appellate Auth. Comdt.
(b) PIO. Adm Offr.

(c) Sp Staff. From within existing resources.

16. CH/BH/ (a) Appellate Auth. Comdt.
MH
(b) PIO. Brig I/C Adm/Sr Registrar & OC
Tps/Registrar.
(c) Sp Staff. From within existing resources.
 206

APPX- Q
Contd

17. Rtg (a) Appellate Auth. DDG Rtg (B) or Offr Offg.
Dte/Rtg
5(OR)
B
(b) PIO. Dri Rtg 5 (OR) or Offr Offg.
(c) Sp Staff. Existing AEC Staff posted and
auth.
18. HQ Rtg (a) Appellate Auth. DDG Rtg (States) or Offr
Zones Offg.
(b) PIO. Dir Rtg (States).
(c) Sp Staff. Existing AEC Staff posted and
auth.
19. IRO (a) Appellate Auth. Dir Rtg or Offr Offg.
(b) PIO. Dy IRO (B) Or Offr Offg.
(c) Sp Staff. Existing staff auth and posted
20. RIMC/ (a) Appellate Auth. Principal.
Rashtri
ya Mil
Schools
(b) PIO. Adm Offr.
(c) Sp Staff.From within existing recourses.
4. RTI matters are extremely sensitive and PIO/AA have quasi-judicial powers,
therefore, appts as designated, will only handle such cases, stroke appts will assume
reps only in case the appt designated as AA/PIO is not posted/not auth/away on
lve/TD in a particular HQ/est.
5. Nodal Offrs of Branches/Dtes of IHQ of MoD (Army). Nodal offrs
have been designated by various Branches/ Dtes at IHQ of MoD
(Army) to Coord replies/provide info on behalf of respective
Branches/Dte to CPIO/AA at IHQ of MoD (Army). The list of
designated Nodal Offrs of Branches/Dtes of IHQ of MoD (Army) is att
at Appx A. Revised details of nodal offrs will be fwd by coord secs of
concerned Dtes/ Branches directly to RTI Cell [(IHQ of MoD) (Army)],
latest by 10 Jan every yr .
6. Methodology of Functioning of Nodal Offrs The methodology to be
followed by Nodal Offrs at various dtes at IHQ of MoD (Army) is given in Succeeding
Paras:-
(a) Receive all RTI queries fwd by RTI Cell.
(b) Direct queries to concerned sec )s) within the dte.
(c) Ensure timely submission of info by concerned sec (s) to RTI Cell.
(d) Ensure authenticity and relevance of info supplied.
 207

APPX- Q
Contd

(e) Fwd queries, related to other dte (s), to Nodal offr (s) of concerned dte (s)
as per RTI Act 2005, Sec 6 (3) under intimation to RTI Cell
(f) Act as one pt contact for RTI Cell, on all RTI related issues, pertaining to
their dte.

7. The following orgs and ests are not under IA for RTI matters and have their
own mechanism for the same :-

(a) DGAFMS.
(b) MES (MES Civ and works matters).
(c) DGDE and its ests.
(d) DGQA and its ests.
(e) ERDO and its ests.
(f) Ord Factories.
(g) HQ 105 TA and its ests.
(h) HQ IDS and its ests.
(j) DG NCC
(k) DG AR
(l) DG Resettlement
(m) DG BR.
(n) Kendriya Sainik Bd.
(o) Sainik School Society.

8. Comd and Control

(a) IHQ of MoD Army Level. Comd and control of RTI cell at IHQ of MoD
(Army) will be ex through ADG AE. The reporting channel for offrs of RTI Cell
at IHQ of MoD (Army) has been laid down by DGMT/MT0-1 vide Ser Nos 48
to 50 of their note No A/02264/GS/MT-1 dt 23 jul 09. Reporting channel of
JCOs and OR of RTI Cell at IHQ of MoD (Army) has been promulgated vide
RTI Cell letter No A/810027/Adm/ACR dt 05 Feb 2010.

(b) Fmn HQ. Comd and control of AEC staff posted at fmn HQ and
administering RTI activities will continue to remain as hither-to-fore ie under
GS Branch.

(c) Ests (less sub para 8 (a) and (b) above). For other ests included in
RTI Org of the IA, Comd and cont of RTI staff will be ex through Appellate
auth and PIOs.
 208

APPX- Q
Contd

Nodal Agency of IA

9. RTI Cell at IHQ of MoD (Army) will be the nodal agency of IA for
implementation of RTI Act 2005, as amended from time to time. The salient aspects
of the “charter of RTI Cell are given below:-

(a) Implementation of RTI related policies as revised from time to time.

(b) Adopt/ clarify suggestions/ queries related to RTI org for the
subordinate fmn and est.

10. Queries/ Suggestions on these instrs, if any will be processed to RTI Cell IHQ
of MoD (Army), who will respond to same as the sponsor of RTI related issues.

11. This supersedes interim Implementation Instrs for assigning RTI

responsibilities to the AEC and creation of RTI Org at the IHQ of MoD (Army) and
subordinate fmns and ests issued vide this HQ letter No. A/30201/1/SD-8 dt 15 Jul
08.

(RK Sharma)
Case file No: A/30201/1/SD-8 Lt Col
GSO 1 SD-8
Dte Gen of Staff Duties (SD-8) For DCOAS (IS & T)
General Staff Branch, Rood No 605, D 1 Wing
Integrated HQ of MoD (Army) Sena Bhawan
DHQ PO New Delhi -110011
19 Jan 2011
 209

APPX- R

Tele : 23019585
ASCON : 35675 RTI Cell ADG AE
G-6 D-1 Wing
Sena Bhawan Gate No. 4
IHQ of MoD (Army)
New Delhi – 110011

A/810027/RT/Policy 07 Aug 2009

HQ Southern Comd, GS (Edn)

HQ Eastern Comd, SG (Edn)
HQ Western Comd, GS (Edn)
HQ Central Comd, (DV)
HQ Norther Comd, (DV)
HQ Southern Western Comd, GS (Edn)

PROCEEDINGS OF COURT OF INQUIRY : RIGHT TO INFORMATION ACT – 05

1. It has been obs that there is a ambiguity in the mind of some of the PIO to
provide proceedings of C of I to applicant seeking info under RTI Act 05.In this
connection a copy of IHQ of MoD (Army), JAG Department Note No.
B/803777/RTI/JAG dated 01 Jun 07 is fwd herewith for your info and necessary
action.

2. This may also please be disseminated to all PIOs under your jurisdiction.

(A K Vyas)
Col
Dir RTI
For DDG RTI & CPIO, Indian Army

Encls : 02 only
 210

APPX- R
Contd

Tele : 23335083

B/803777/RTI//JAG 07 Jun 2007

NYAYA MAHADHIVAKTA VIBHAG

JUDGE ADVOCATE GENERAL’S DEPARTMENT

RIGHT TO INFORMATION ACT, 2005

1. Ref your SN No A/810027/RTI/Misc/M/PI dated 18 May 207.

2. Two matters raised in the above SN are commented below.

3. Para 292-596 of the Regulations for the Army (Revised Edition), 1987
prescribe the period for which various types of documents mentioned therein are
required to be preserved. According to Sec 8 (3) of RTI Act, 2005 any information
relating to any occurrence, event or matter which has taken place, occurred or
happened twenty years before the date of making the application shall be provided.
The underlying rationale appears to be that any information more than twenty years
old should be made available. Obviously this would only be done if the information is
available. However, the said provision can not be interpreted to cast an obligation
on public authorities to preserve every document indefinitely so as to cater for the
contingency that a citizen may request information Commission has upheld denial of
information where the relevant record have been destroyed on expiry of prescribed
period of preservation (Ex Nb Sub Gurbachan Singh – Appeal CIC/AT/A2006/20
dated the 23rd March, 2006). Hence, the3re is no clash between Sec 8 (3) of the
Right to Information Act, 2005 and Para 592-596 of the Regulations for the Army
(Revised Edition), 1987.

4. According to Army Rule 184, any person subject to the Army Act is entitled
two copies of such statements/documents contained in the proceedings of Court of
Inquiry as are relevant to his prosecution or defence or have a bearing on his
character or military reputation. The findings/opinion of the Court of Inquiry or
recommendations and directions of competent authority do not fall within the ambit of
entitlement as indicated in Army Rule 184 and, therefore, are not liable to be
provided. Para 9 of ADG (DV) Integrated HQ of MoD (Army) letter
No.32908/AG/DV-1(P) dated Oct 2000 merely reiterate the aforesaid legal
proposition.
 211

APPX- R
Contd

5. The point warranting consideration is whether information relating to findings,

opinion of the Court of Inquiry or recommendations/directions of the competent
authority are liable to be furnished under the provisions of Right to Information Act,
2005. It is to be noted that assistance given in confidence for law enforcement finds
mention under Sec 8 (1) (g) of the RTI Act, 2005. The court of Inquiry is statutory
mode of investigation towards law enforcement in the Army. Any comments or
opinions expressed thereon by the member of the Court or by the Cdrs or Staff
officers as also advice by the legal advisors would squarely fall under assistance
provided for law enforcement. Such assistance may be at pre trial, trial or post trial
stage. Sec 8(1) (h) of the RTI Act, 2005 is also relevant in this regard as prosecution
of offenders is not to be given a restrictive meaning. It is to be read in a wider sense
so as to guard against a design to frustrate prosecution at all the three stages, i.e.
pre trial, trial and post trial. Having regard to the purpose of law enforcement, this is
meant as information having been given in confidence. This reasoning is to be
understood within the overall concept of rule of law which is aimed to strike a
balance between need to maintain the desired standard of discipline and the right of
a delinquent to prepare his defence by way of the need to make available all relevant
information concerning the lapse or the charge to the accused It, therefore, follows
that the findings/opinion of the Court of Inquiry and recommendations/directions of
the competent authority on the Court of Inquiry fall squarely under the exceptions
under Sec 8 (1) (g) and (h) of the Right to Information Act, 2005 and are not liable to
be furnished.

6. In view of the above, there is no inconsistence between the provisions of

Army rule 184 or Paras 592 – 596 of Regulations for the Army 1987 and Sec 8 of the
Right to Information Act, 2005.

(NK Kohli)
Col
DJAG

OIC, RTI Cell

212

APPX- S
213

APPX- S
Contd
214

APPX- T
215

APPX- T
Contd
 216
APPX- U

SAMPLE LETTER TO THE MAGISTRATE FOR OBTAINING ATTENDANCE OF CIVIL WITNESS

BEFORE C OF I/SOE/COURT MARTIAL

x-x-x-x-x-x-x
PIN: x-x-x-x-
C/o 56 APO

CF/xxxxx/xx/A Mar 2017

Chief Judicial Magistrate/Magistrate having powers

Officer of the Civil Court
Jammu(J&K)/ Any other State

COURT OF INQUIRY/ SUMMARY OF EVIDENCE/COURT MARTIAL(AS THE CASE MAY BE)

BETWEEN ARMY DD VEHICLE XXXXXXX DRIVEN BY XXXXOF XXXAND CIVIL MOTORCYCLE
REGISTERED NUMBER XXXX HERO HONDA CLASSIC DRIVEN BY XXXXS/O XXX OCCURRED
AT XXXX WHICH RESULTED IN DEATH OF MOTORCYCLE RIDER.

1 It Is submitted for information of the Hon’ble Magistrate of the Civil Court of Jammu that at
xxxxxx on xxxxxx, vehicle BA No xxxxxxxxxx, military vehicle of xxxxxxxxx was being driven from
to xxxxx for bonafied military duty. At xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
2. At xxxx, where the military vehicle overtook the motor cycle from the right as per existing
driving rules, military vehicle saw the motorcycle skidding on the road. All army personnel in the
vehicle reached at the site where the motor cycle fell and assisted them. Thereafter, realizing their
social duty they evacuated the injured pillion rider and rider to District Hospital xxxxxx, Subsequently
it has been learnt that rider was further shifted to Jammu and referred to xxxxxxxx where he passed
away.

3. Station Headquarter xxxxxxx detailed a Presiding Officer to investigate under which

circumstances accident between army vehicle and civil motor cycle happened under the provision of
Para 518 to 522 of the Regulation for the Army 1987. As per existing provision of the Army court of
inquiry of the instant case is withheld for want of statement of pillion rider i.e xxxxxx.

4. As Presiding Officer, may I request your good office to give direction to concerned
administrative authority to instruct Mr xxxxxxxx,pillion rider of the vehicle to give his statement. The
address of Mr xxxxxx is as under for your ref :-

Mr _________
Vill _________
Post _________
Teh _________
Dist _________
PIN _________

5. An early action is requested please.

Enclosure:- Copy of Summary attached under Army Act sec 135 ________________
Copy to:- Presiding Officer

- SSP
- All Concerned Competent Auth Connected with the
Presence of the said civil witness
 217

APPX- U
Contd

In Iieu of IAFD-9190

FORMS OF SUMMONS TO WITNESSES

To,

_________________

_________________

Whereas a Court of Inquiry/Summary of evidence/Court martial has been ordered to

assemble at xxxxxxxxx on the xxxxxday of xxxxx for investigation into the circumstances
under which accident between xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxwhich
subsequently resulted to the death of individual. I do hereby summon and require you Mr
xxxxxxxxxxxxx, Vill-xxxxxxxx, Post-xxxxxxxx, Teh-xxxxxxxx, Dist-xxxxxxx, Pin-xxxxxxx to
attend. as a witness at the sitting of the said court atxxxxxxxxxx(Place) on the
xxxxxxxxx(day) at xxxx hours and to bring with the document hereinafter mentioned,
namely xxxxxxxxxxxxxxxxxand so to attend from day to until you shall be duly discharged,
where off you shall fail at your peril.

Given under my hand at xxxxxhrs on the xxxxxxxdayof xxxxxxx.

Presiding Officer_______________________
(Rank)
 218

APPX- V

SAMPLE LETTER BY THE COMMANDING OFFICER OF THE ACCUSED UNDER ARMY ACT
SECTION 104 READ WITH CRPC SECTION 475 (2) &167 (2)#/ (J&K) CRPC* 549 & 167)

X-X-X-X-X-X-X
PIN : X-X-X-X-X
C/O 56 APO

CF/XXXXX/XX/A 2018
Chief Judicial Magistrate /Magistrate having jurisdiction
or SHO (as the case may be)

APPLICATION BY THE COMMANDING OFFICER OF THE ACCUSED UNDER ARMY ACT

SECTION 104 READ WITH CRPC SECTION 475(2) & 167(2)#& (J&K CRPC* 549 & 167) FOR
DELIVERY OF OFFENDER NO _____________RANK _______ NAME __________________
OF UNIT ___________ TO MILITARY CUSTODY

1. Whereas, it has come to our notice that No________________ Rank ______________

Name ___________________ is under your custody for charges under IPC/RPC
__________________ for which Case No__________________ dated_______________ 2018 has
been filed by Police Station _____________.

2. It is hereby intimated and requested to you to deliver the offender to Military Custody under
the provision of Army Act Section 104 read with CrPC Section 475(2) &167(2), J&K CrPC* 549
& 167 (copy attached). It is pertinent to mention that the Armed Force Personnel constitute a special
class and governed by the Army Act which is a special law applicable only to persons subject to
Army Act. You will appreciate that why parliament has intended to bring the aforesaid law so that
the trained soldiers are not to be kept alongwith the criminals to the fact that they may get
influenced, demotivated and especially when they are serving the motherland far from their
families and relatives. Further, the Commanding Officer holds an unparallel position as he
has been entrusted with the responsibility by the nation to lead his men into the battle even in the
face of eminent threat to his life. Such selfless devotion originates from the battle hardened training
and prolonged association clubbed with sense of ‘mutual respect’.

3. It is also intimated and assured to you that during the period of investigation and before the
exercise of the jurisdiction under Army Act Section 125 by the competent authority, the offender will
be made available to the investigation agency under military custody on as and when required
basis.

4. JC______________Rank__________Name _______________ Unit__________________

is hereby authorised to take custody of the accused soldier and also to present this application
before you for handing over of military personnel under Army Act Section 104 and for passing
necessary instruction to the Police Station / the authority concerned where
No _____________Rank _________ Name _______________ is in custody.

(_______________________)
Colonel
Commanding Officer

# In case this letter is addressed to SHO, Police Station then there is no requirement to
mention Section 167 CrPC.

* Applicable only when the cause of action arises in the State of Jammu & Kashmir.