CHAPTER VIIIPENAL DEDUCTIONS
91.Deductions 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,-
(a) all pay and allowances due to an officer for every day he absents himself without leave, unless a satisfactory explanation has been given to his commanding officer and has been approved by the Central Government;
(b) all pay and allowances for every day while he is in custody or under suspension from duty on a charge for an offence of which he is afterwards convicted by a criminal court or a court-martial or by an officer exercising authority under section 86 ;
(c) any sum required to make good the pay of any person subject to this Act which he has unlawfully retained or unlawfully refused to pay ;
(d) any sum required to make good such compensation for any expenses, loss, damage or destruction occasioned by the commission of an offence as may be determined by the court-
martial by Whom he is convicted of such offence, or by an officer exercising authority under section 86;
(e) all pay and allowances ordered by a court-martial or an officer exercising authority under section 86 to be forfeited or stopped ;
(f) any sum required to pay a fine awarded by a criminal court or a court-martial exercising jurisdiction under section 71;
(g) any sum required to make good any loss, damage, or destruction of public or service property which, after due
———————————————————————-
1 Subs. by Act 19 of 1955, s. 2 and Sch., for “the Commander-
in-Chief”
———————————————————————-
178.investigation, appears to the Central Government to have been occasioned by the wrongful act or negligence on the part of the officer;
(h) all pay and allowances forfeited by order of the
Central Government if the officer is found by a court of inquiry constituted by 1[the Chief of the Air Staff] in this behalf, to have deserted to the enemy, or while in enemy hands, to have served with, or under the orders of, the enemy or in any manner to have aided the enemy, or to have allowed himself to be taken prisoner by the enemy through want of due precaution or through disobedience of orders or wilful neglect of duty, or having been taken prisoner by the enemy, to have failed to rejoin his service when it was possible to do so ;
(i) any sum required by order of the Central Government 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.
92.Deductions from pay and allowances of airmen.
92.Deductions from pay and allowances of airmen. Subject to the provisions of section 95, the following penal deductions may be made from the pay and allowances of an airman, that is to say,-
(a) all pay and allowances for every day of absence either on desertion or without leave, or as a prisoner of war, and for every day of transportation or imprisonment awarded by a criminal court, or a court-martial, or of detention, or field punishment awarded by a court-martial or an officer exercising authority under section 82.(b) all pay and allowances for every day while he is in custody on a charge for an offence of which he is afterwards convicted by a criminal court or a court-martial, or on a charge of absence without leave for which he is afterwards awarded detention or field punishment by an officer exer-
cising authority under section 82 ;
(c) all pay and allowances for every day on which he is in hospital on account of sickness certified by the medical officer attending on him to have been caused by an offence under this Act committed by him;
(d) for every day on which he is in hospital on account of sickness certified by the medical officer attending on him to have been caused by his own misconduct or imprudence,
———————————————————————-
1 Subs. by Act 19 of 1955, s. 2 and Sch., for ” the Commander-in-
Chief”.
———————————————————————–
179.such sum as may be specified by order of the Central
Government or by such officer as may be specified by that
Government;
(e) all pay and allowances ordered by a court-martial or by an officer exercising authority under section 82 or section
86 to be forfeited or stopped;
(f) all pay and allowances for every day between his being recovered from the enemy and his dismissal from the service in consequence of his conduct when being taken prisoner by, or while in the hands of, the enemy;
(g) any sum required to make good such compensation for any expenses, loss, damage or destruction caused by him to the
Central Government or to any building or property as may be awarded by his commanding officer; .
(h) any sum required to pay a fine awarded by a criminal court, a court-martial exercising jurisdiction under section
71, or an officer exercising authority under section 82 or section 90 ;
(i) any sum required by order of the Central Government 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.
93.Computation of time of absence or custody.
93.Computation of time of absence or custody. For the purposes of clauses (a) and (b) of section 92-
(a) no person shall be treated as absent or in custody for a day a unless the absence or custody has lasted, whether wholly in one day, or partly in one day and partly in another, for six consecutive hours or upwards ;
(b) any absence or custody for less than a day may be reckoned as absence or custody for a day if such absence or custody prevented the absentee from fulfilling any air force duty which was thereby thrown upon some other person;
(c) absence or custody for twelve consecutive hours or upwards may be reckoned as absence or custody for the whole of each day during any portion of which the person was absent or in custody ;
(d) a period of absence, or imprisonment, which commences before and ends after, midnight may be reckoned as a day.
180
94.Pay and allowances during trial.
94.Pay and allowances during trial. In the case of any person subject to this Act who is in custody or under suspension-from duty on a charge for an offence, the prescribed officer may direct that the whole or any part of the pay and allowances of such person shall be withheld, pending the result of his trial on the charge against him, in order to give effect to the provisions of clause (b) of sections 91.and 92.
95.Limit of certain deductions.
95.Limit of certain deductions. The total deductions from the pay and allowances of a person made under clauses (e) and (g) to (i) of section 92 shall not, except where he is sentenced to dismissal, exceed in any one month one-half of his pay and allowances for that month.
96.Deduction from public money due to a person.
96.Deduction from public money due to a person. Any sum authorised by this Act to be deducted from the pay and allowances of any person may, without prejudice to any other mode of recovering the same, be deducted from any public money due to him other than a pension.
97.Pay and allowances of prisoner of war during inquiry into his conduct.
97. Pay and allowances of prisoner of war during inquiry into his conduct. Where the conduct of any person subject to this Act when being taken prisoner by, or while in the hands of, the enemy, is to be inquired into under this Act or any other law, 1 [the Chief of the Air
Staff] or any officer authorised by him may order that the whole or any part of the pay and allowances of such person shall be withheld pending the result of such inquiry.
98.Remission of deductions.
98.Remission of deductions. Any deduction from pay and allowances authorised by this Act may be remitted in such manner, and to such extent, and by such authority, as may from time to time be prescribed.
99.Provision for dependants of prisoner of war from remitted deductions.
99.Provision for dependants of prisoner of war from remitted deductions. In the case of all persons subject to this Act, being prisoners of war, whose pay and allowances have been forfeited under clause (h) of section 91 or clause (a) of section 92, but in respect of whom a remission has been made under section 98, it shall be lawful for proper provision to be made by the prescribed authorities out of such pay and allowances for any dependants of such persons, and any such remission shall in that case be deemed to apply only to the balance thereafter remaining of such pay and allowances.
100.
Provision for dependants of prisoner of war from his pay andallowances.
100.Provision for dependants of prisoner of war from his pay and allowances. It shall be lawful for proper provision to be made by the prescribed authorities for any dependants of any person subject to this Act, who is a prisoner of war or is missing, out of his pay and allowances.
101.Period during which a person is deemed to be a prisoner of war.
101.Period during which a person is deemed to be a prisoner of war. For the purposes of sections 99 and 100, a person shall be deemed to continue to be a prisoner of war until the conclusion of any inquiry into his conduct such as is referred to in section 97, and if he is cashiered or dismissed from the service in consequence of such conduct, until the date of such cashiering or dismissal.
———————————————————————
1 Subs. by Act 19 of 1955, s. 2 and Sch., for ” the Commander-in-
Chief”.
CHAPTER IXARREST AND PROCEEDINGS BEFORE TRIAL
102.Custody of offenders. (1) Any person subject to this Act who is charged with a offence may be taken into air force custody.
(2) Any such person may be ordered into air force custody by any superior officer.
(3) Any officer may order into air force custody any officer, though he may be of a higher rank, engaged in a quarrel, affray or disorder.
103.Duty of commanding officer in regard detention.
103.Duty of commanding officer in regard detention. (1) It shall be the duty of every commanding officer to take care that a person under his command when charged with an offence is not detained in custody for more than forty-eight hours after the committal of such person into custody is reported to him, without the charge being investigated, unless investigation within that period seems to him to be impracticable with due regard to the public service.
(2) Every case of a person being detained in custody beyond a period of forty-eight hours, and the reason thereof shall be reported by the commanding officer to the air or other officer to whom applica-
tion would be made to convene a general or district court-martial for the trial of the person charged.
(3) In reckoning the period of forty-eight hours specified in subsection (1), Sundays and public holidays shall be excluded.
(4) Subject to the provisions of this Act, the Central
Government may make rules providing for the manner in which and the period for which any person subject to this Act may be taken into and detained in air force custody, pending the trial by any competent authority for any offence committed by him.
104.Interval between committal and court-material.
104.Interval between committal and court-material. In every case where any such person as is mentioned in section 102 and as is not on active service remains in such custody for a longer period than eight days, without a court-martial for his trial being ordered to assemble, a special report giving reasons for the delay shall be made by his commanding officer in the manner prescribed; and a similar report shall be forwarded every eight days until a court-martial is assembled or such person is released from custody.
105.Arrest by civil authorities.
105.Arrest by civil authorities. 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 air force custody of such person upon receipt of a written application to that effect signed by his commanding officer.
106.Capture of deserters.
106.Capture of deserters. (1) Whenever any person subject to this
Act deserts, the commanding officer of the unit or detachment to which he belongs, shall
182.give written information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter ; and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a magistrate, and shall deliver the deserter, when apprehended, into air force custody.
(2) Any police officer may arrest without warrant any person reasonably believed to be subject to this Act, and to be a deserter or to be travelling without authority, and shall bring him without delay before the nearest magistrate, to be dealt with according to law.
107.Inquiry into absence without leave.
107.Inquiry into absence without leave. (1) When any person subject to this Act has been absent from his duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be assembled, and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries, and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof, and the said deficiency, if any; and the commanding officer of the unit to which the person belongs shall enter in the court-martial book of the unit a record of declaration.
(2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act, be deemed to be a deserter.
108.Provost marshals.
108.Provost marshals. (1) Provost-marshals may be appointed by
1[the Chief of the Air Staff], or by any prescribed officer.
(2) The duties of a provost-marshal are to take charge of persons confined for any offence, to preserve good order and discipline, and to prevent breaches of the same by persons serving in, or attached to, the Air Force.
(3) A provost-marshal may at any time arrest and detain for trial any person subject to this Act who commits, or is charged with, an offence, and may also carry into effect any punishment to be inflicted in pursuance of the sentence awarded by a court-martial, or by an officer exercising authority under section 82 but shall not inflict any. punishment on his own authority:
Provided that no officer shall be so arrested or detained otherwise than on the order of another officer.
———————————————————————-
1 Subs. by Act 19 of 1955, s. 2 and Sch., for ” the Commander-in-
Chief”.
———————————————————————-
183.(4) For the purposes of sub-sections (2) and (3), a provost-
marshal shall be deemed to include a provost-marshal appointed under the Army Act or the Navy Act and any person legally exercising authority under him or on his behalf.
CHAPTER XCOURTS-MARTIAL
109.Different kinds of courts martial. For the purposes of this
Act there shall be three kinds of courts-martial, that is to say,-
(a) general courts-martial
(b) district courts-martial and
(c) summary general courts-martial.
110.Power to convene a general court martial. A general court-
martial may be convened by the Central Government or 1[the Chief of the Air Staff], or by any officer empowered in this behalf by warrant of 1[the Chief of the Air Staff].
111.Power to convene a district court martial. A district court-
martial may be convened by an officer having power to convene a general court-martial, or by any officer empowered in this behalf by warrant of any such officer.
112.Contents of warrants issued under sections 110 and 111.112.Contents of warrants issued under sections 110 and 111. A
warrant issued under section 110 or section 111 may contain such restrictions, reservations or conditions as the officer issuing it may think fit.
113.Power to convene a summary general court martial.
113.Power to convene a summary general court martial. The following authorities shall have the power to convene a summary general court-martial, namely:-
(a) an officer empowered in this behalf by an order of the
Central Government or of 1 [the Chief of the Air Staff];
(b) on active service, the officer commanding the forces in the field, or any officer empowered by him in this behalf ;
(c) an officer commanding any detached portion of the Air
Force on active service when, in his opinion, it is not practicable, with due regard to discipline and the exigencies of the service, that an offence should be tried by a general court-martial.
114.Composition of general court martial.
114.Composition of general court martial. A general court-martial shall consist of not less than five officers, each of whom has held a commission for not less than three
———————————————————————
1 Subs. by Act 19 of 1955, s. 2 and Sch., for ” the Commander-in-
Chief”.
———————————————————————-
184.whole years and of whom not less than four are of a rank not below that of flight-lieutenant.
115.Composition of district court-martial.
115.Composition of district court-martial. A district court-
martial shall consist of not less than three officers, each of whom has held a commission for not less than two whole years.
116.Composition of summary general court-martial.
116.Composition of summary general court-martial. A summary general court-martial shall consist of not less than three officers.
117.Dissolution of court-martial.
117.Dissolution of court-martial. (1) If a court-martial after the commencement of a trial is reduced below the minimum number of officers required by this Act, it shall be dissolved.
(2) If on account of the illness of the judge advocate or of the accused before the finding, it is impossible to continue the trial, a court-martial shall be dissolved.
(3) The officer who convened a court-martial may dissolve such court-martial if it appears to him that the exigencies of the service or the necessities of discipline render it impossible or inexpedient to continue the said court-martial.
(4) Where a court-martial is dissolved under this section, the accused may be tried again.
118.Powers of general and summary general courts-martial.
118.Powers of general and summary general courts-martial. A
general or summary general court-martial shall have power to try any person subject to this Act for any offence punishable therein and to pass any sentence authorised thereby.
119.Powers of district court-martial.
119.Powers of district court-martial. A district court-martial shall have power to try any person subject to this Act other than an officer or warrant officer for any offence made punishable therein, and to pass any sentence authorised by this Act other than a sentence of death, transportation, or imprisonment for a term exceeding two years.
120.Prohibition of second trial.
120.Prohibition of second trial. When any person subject to this
Act has been acquitted or convicted of an offence by a court-martial or by a criminal court, or has been dealt with under section 82 or section 86, he shall not be liable to be tried again for the same offence by a court-martial or dealt with under the said sections.
121.Period of limitation for trial.
121.Period of limitation for trial. (1) Except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence.
(2) The provisions of I sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37.
185.(3) In the computation of the period of time mentioned in sub-
section (1) anytime spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.
(4) No trial for an offence of desertion, other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer has, subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the Air Force.
122.Liability of offender who ceases to be subject to Act.
122.Liability of offender who ceases to be subject to Act. (1)
Where an offence under this Act had been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in air force custody, and tried and punished for such offence as if he continued to be so subject.
(2) Except as provided by sub-sections (3) and (4), any such person shall, not be tried for an offence, unless his trial commences within six months after he had ceased to be subject to this Act.
(3) _The provisions of sub-section (2) shall not apply to the trial of any such person for an offence of desertion or fraudulent enrolment or for any of the offences, mentioned in section 37.(4) Nothing contained in sub-section (2) shall affect the jurisdiction of a civil court to try any offence triable by such court as well as by a court-martial.
(5) When a person subject to this Act is sentenced by a court-
martial to transportation or imprisonment, this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the Air Force, or has otherwise ceased to be subject to this Act, and he may be kept, removed, imprisoned and punished as if he con-
tinued to be subject to this Act.
(6) When a person subject to this Act is sentenced by a court-
martial to death, this Act shall apply to him till the sentence is carried out.
123.Place of trial.
123.Place of trial. Any person subject to this Act who commits any offence against it may be tried and punished for such offence in any place whatever.
124.Choice between criminal court and court-martial.
124.Choice between criminal court and court-martial. When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of 1 [the Chief of the
Air Staff], the officer commanding any group, wing or station in which the accused prisoner is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted.
———————————————————————-
1 Subs. by Act 19 of 1955, s. 2 and Sch., for the Commander-in-
Chief”.
———————————————————————-
186.before a court-martial, to direct that the accused person shall be detained in air force custody.
125.Power of criminal court to require delivery of offender.
125.Power of criminal court to require delivery of offender. (1)
When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in section 124 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central
Government.
(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central
Government whose order upon such reference shall be final.
126.Successive trials by a criminal court and a court-martial.
126.Successive trials by a criminal court and a court-martial.
(1) A person convicted or acquitted by a court-martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence, or on the same facts.
(2) If a person sentenced by a court-martial under this Act or punished under section 82 or section 86 is afterwards tried and con-
victed by a criminal court for the same offence, or on the same facts, that court shall, in awarding punishment have regard to the punishment he may already have undergone for the said offence.
CHAPTER XIPROCEDURE OF COURTS-MARTIAL
127.Presiding officer. At every general, district or summary general court-martial the senior member shall be the presiding officer.
128.Judge advocate.
128.Judge advocate. Every general court-martial shall, and every district or summary general court-martial may, be attended by a judge advocate, who shall be either an officer belonging to the department of the Chief Legal Adviser or if no such officer is available, an officer approved by the Chief Legal Adviser or any of his deputies.
129.Challenges.
129.Challenges. (1) At all trials by general, district or summary general courts-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall there. upon be asked whether he objects to being tried by any officer sitting on the court.
187.(2) If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the court shall, in the absence of the challenged officer, decide on the objection.
(3) If the objection is allowed by one-half or more of the votes of the officers entitled to vote, the objection shall be allowed, and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer, subject to the same right of the accused to object.
(4) When no challenge is made, or when challenge has been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the court shall proceed with the trial.
130.
Oaths of member, judge advocate and witness.
130.Oaths of member, judge advocate and witness. (1) An oath or affirmation in the prescribed manner shall be administered to every member of every court-martial and to the judge advocate before the commencement of the trial.
(2) Every person giving evidence before a court-martial shall be examined after being duly sworn or affirmed in the prescribed form.
(3) The provisions of sub-section (2) shall not apply where the witness is a child under twelve years of age and the court-martial is of opinion that though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation.
131.Voting by members.
131.Voting by members. (1) Subject to the provisions of sub-
sections (2) and (3), every decision of a court-martial shall be passed by an absolute majority of votes ; and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused.
(2) No sentence of death shall be passed by a general court-
martial without the concurrence of at least two-thirds of the members of the court.
(3) No sentence of death shall be passed by a summary general court-martial without the concurrence of all the members.
(4) In matters other than a challenge or the finding or sentence, the presiding officer shall have a casting vote.
132.General rule as to evidence.
132.General rule as to evidence. The Indian Evidence Act, 1872,
(1 of 1872) shall, subject to the provisions of this Act, apply to all proceedings before a court-martial.
133.Judicial notice.
133.Judicial notice. A court-martial may take judicial notice of any matter within the general air force knowledge of the members.
134.Summoning witnesses.
134.Summoning witnesses. (1) The convening officer, the Presiding officer of a court-martial, the judge advocate or the commanding officer of the accused person, may, by summons under his hand, require the attendance, at
188.a time and place to be mentioned in the summons, of any person either to give evidence or to produce any document or other thing.
(2) In the case of a witness amenable to air force authority, the summons shall be sent to his commanding officer, and such officer shall serve it upon him accordingly.
(3) In the case of any other witness, the summons shall be sent to the magistrate within whose jurisdiction he may be or reside, and such magistrate shall give effect to the summons as if the witness were required in the court of such magistrate.
(4) When a witness is required to produce any particular document or other thing in his possession or power, the summons shall describe it with reasonable precision.
135.Documents exempted from production.
135.Documents exempted from production. (1) Nothing in section
134 shall be deemed to affect the operation of sections 123 and 124 of the Indian Evidence Act, 1872, or to apply to any letter, postcard, telegram or other document in the custody of the postal or telegraph authorities.
(2) If any document in such custody is, in the opinion of any district magistrate, chief presidency magistrate, High Court or Court of Session, wanted for the purpose of any court-martial, such magis-
trate or court may require the postal or telegraph authorities, as the case may be, to deliver such document to such person as such magis-
trate or court may direct.
(3) If any such document is, in the opinion of any other magistrate or of any commissioner of police or district superintendent of police, wanted for any such purpose, he may require the postal or telegraph authorities, as the case may be, to cause search to be made for and to detain such document pending the orders of any such district magistrate, chief presidency magistrate or High Court or
Court of Session.
136.Commissions for examination of witnesses.
136.Commissions for examination of witnesses. (1) Whenever, in the course of a trial by court-martial, it appears to the court that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, in the circumstances of the case, would be unreasonable, such court may address the Chief
Legal Adviser in order that a commission to take the evidence of such witness may be issued.
(2) The Chief Legal Adviser may then, if he thinks necessary, issue a commission to any district magistrate or magistrate of the first class, within the local limits of whose jurisdiction such witness resides, to take the evidence of such witness.
(3) The magistrate or officer to whom the commission is issued, or, if he is the district magistrate, he or such magistrate of the first class as he appoints in this behalf, shall proceed to the place where the
189.witness is or shall summon the witness before him and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant cases under the Code of-Criminal
Procedure, 1898, (5 of 1898.) or any corresponding law in force in
1[the State of Jammu and Kashmir].
(4) When the witness resides in a tribal area or in any place outside India, the commission may be issued in the manner specified in
Chapter XL of the Code of Criminal Procedure, 1898, (5 of 1898.) or of any corresponding law in force in 1 [the State of Jammu and Kashmir].
(5) In this and the next succeeding section, the expression ”
Chief Legal Adviser includes a Deputy Chief Legal Adviser.
137.Examination of a witness on commission.
137.Examination of a witness on commission. (1) The prosecutor and the accused person in any case in which a commission is issued under section 136 may respectively forward any interrogatories in writing which the court may think relevant to the issue, and the magistrate or officer executing the commission shall examine the witness upon such interrogatories.
(2) The prosecutor and the accused person may appear before such magistrate or officer by counsel or except in the case of an accused person in custody, in person, and may examine, cross-examine and re-
examine, as the case may be, the said witness.
(3) After a commission issued under section 136 has been duly .executed, it shall be returned, together with the deposition of the witness examined thereunder to the Chief Legal Adviser.
(4) On receipt of a commission and deposition returned under subsection (3), the Chief Legal Adviser shall forward the same to the court at whose instance the commission was issued or, if such court has been dissolved, to any other court convened for the trial of the accused person ; and the commission, the return thereto and the depo-
sition shall be open to inspection by the prosecutor and the accused person, and may, subject to all just exceptions, be read in evidence in the case by either the prosecutor or the accused, and shall form part of the proceedings of the court.
(5) In every case in which a commission is issued under section
136, the trial may be adjourned for a specified time reasonably suffi-
cient for the execution and return of the commission.
138.Conviction of offence not charged.
138.Conviction of offence not charged. (1) A person charged before a court-martial with desertion may be found guilty of attempting to desert or of being absent without leave.
———————————————————————-
1 Subs. by the Adaptation of Laws (No, 3) Order, 1956, for “a
Part B State”.
———————————————————————-
190
(2) A person charged before a court-martial with attempting to desert may be found guilty of being absent without leave.
(3) A person charged before a court-martial with using criminal force may be found guilty of assault.
(4) A person charged before a court-martial with using threaten-
ing language may be found guilty of using insubordinate language.
(5) A person charged before a court-martial with any one of the offences specified in clauses (a), (b), (c) and (d) of section 52 may be found guilty of any other of these offences with which he might have been charged.
(6) A person charged before a court-martial with an offence punishable under section 71 may be found guilty of any other offence of which he might have been found guilty if the provisions of the Code of Criminal Procedure, 1898, (5 of 1898) were applicable.
(7) A person charged before a court-martial with any offence under this Act may, on failure of proof of an offence having been committed in circumstances involving a more severe punishment, be found guilty of the same offence as having been committed in circumstances involving a less severe punishment.
(8) A person charged before a court-martial with any offence under this Act may be found guilty of having attempted or abetted the commission of that offence, although the attempt or abetment is not separately charged.
139.Presumption as to signatures.
139.Presumption as to signatures. In any proceeding under this
Act, any application, certificate, warrant, reply, or other document purporting to be signed by an officer in the service of the Government shall, on production, be presumed to have been duly signed by the person by whom and in the character in which it purports to have been signed, until the contrary is shown.
140.
Enrolment paper.
140.Enrolment paper. (1) Any enrolment paper purporting to be signed by an enrolling officer shall, in proceedings under this Act, be evidence of the person enrolled having given the answers to questions which he is therein represented as having given.
(2) The enrolment of such person may be proved by the production of the original or a copy of his enrolment paper purporting to be certified to be a true copy by the officer having the custody of the enrolment paper.
190A
141.Presumption as to certain documents.
141.Presumption as to certain documents. (1) A letter, return or other document respecting the service of any person in, or the cashiering, dismissal or discharge of any person from, any portion of the Air Force, or respecting the circumstance of any person not having served in, or belonged to, any portion of the Forces, if purporting to be signed by or on behalf of the Central Government or 1[the Chief of the Air Staff], or by any prescribed
———————————————————————-
1 Subs. by Act 19 of 1955, s. 2 and Sch., for “the Commander-in-
Chief”.
———————————————————————-
191.officer, shall be evidence of the facts stated in such letter, return or other document.
(2) An Army, Navy or Air Force List or Gazette purporting to be published by authority shall be evidence of the status and rank of the officers or warrant officers therein mentioned, and of any appointment held by them and of the unit or branch of the services to which they belong.
(3) Where a record is made in any service book in pursuance of this Act or of any rules made thereunder or otherwise in pursuance of air force duty, and purports to be signed by the commanding officer or by the officer whose duty it is to make such record, such record shall be evidence of the facts therein stated.
(4) A copy of any record in any service book purporting to be certified to be a true copy by the officer having custody of such book shall be evidence of such record.
(5) Where any person subject to this Act is being tried on a charge of desertion or of absence without leave, and such person has surrendered himself into the custody of any officer or other person subject to this Act, or any portion of the Air Force, or has been apprehended by such officer or person, a certificate purporting to be signed by such officer, or by the commanding officer of that portion of the Air Force, or by the commanding officer of the unit, or detachment to which such person belongs, as the case may be, and stating the fact, date and place of such surrender or apprehension, and the manner in which he was dressed, shall be evidence of the matters so stated.
(6) Where any person subject to this Act is being tried on a charge of desertion or of absence without leave, and such person has surrendered himself into the custody of, or has been apprehended by, a police officer not below the rank of an officer-in-charge of a police station, a certificate purporting to be signed by such police officer and stating the fact, date and place of such surrender or apprehension and the manner in which he was dressed shall be evidence of the matters so stated.
(7) Any document purporting to be a report under the hand of any
Chemical Examiner or Assistant Chemical Examiner to Government upon any matter or thing duly submitted to him for examination or analysis and report may be used as evidence in any proceeding tinder this Act.
142.Reference by accused to Government officer.
142.Reference by accused to Government officer. (1) If at any trial for desertion or absence without leave, overstaying leave or not rejoining when warned for service, the person tried states in his defence any sufficient or reasonable excuse for his unauthorised absence, and refers in support thereof to any officer in the service of the Government, or if it appears that any such officer
192.is likely to prove or disprove the said statement in the defence, the court shall address such officer and adjourn the proceedings until his reply is received.
(2) The written reply of any officer so referred to shall, if signed by him, be received in evidence and have the same effect as if made on oath before the court.
(3) If the court is dissolved before the receipt of such reply, or if the court omits to comply with the provisions of this section, the convening officer may, at his discretion, annul the proceedings and order a fresh trial.
143.Evidence of previous convictions and general character.
143.Evidence of previous convictions and general character. (1)
When any person subject to this Act has been convicted by a court-
martial of any offence, such court-martial may inquire into, and receive and record evidence of any previous convictions of such person, either by a court-martial or by a criminal court, or any pre-
vious award of punishment under section 82 or section 86 and may further inquire into and record the general character of such person and such other matters as may be prescribed.
(2) Evidence received under this section may be either oral, or in the shape of entries in, or certified extracts from, court-martial books or other official records, and it shall not be necessary to give notice before trial to the person tried that evidence as to his previous convictions or character will be received.
144.Lunacy of accused.
144.Lunacy of accused. (1) Whenever, in the course of a trial by a court-martial, it appears to the court that the person charged is by reason of unsoundness of mind incapable of making his defence, or that he committed the act alleged but was by reason of unsoundness of mind incapable of knowing the nature of the act or knowing that it was wrong or contrary to law, the court shall record a finding accordingly.
(2) The presiding officer of the court shall forthwith report the case to the confirming officer.
(3) The confirming officer to whom the case is reported under sub-section (2) may, if he does not confirm the finding, take steps to have the accused person tried by the same or another court-martial for the offence with which he was charged.
(4) A confirming officer confirming a finding in any case so reported to him under sub-section (2) shall order the accused person to be kept in custody in the prescribed manner and shall report the case for the orders of the Central Government.
(5) On receipt of a report under sub-section (4) the Central
Government may order the accused person to be detained in a lunatic asylum or other suitable place of safe custody.
193.145.Subsequent fitness of lunatic accused for trial.
145.Subsequent fitness of lunatic accused for trial. Where any accused person, having been found by reason of unsoundness of mind to be incapable of making his defence, is in custody or under detention under section 144, the officer commanding a unit or detachment within the area of whose command the accused is in custody or is detained, or any other officer prescribed in this behalf, may-
(a) if such person is in custody under sub-section (4) of section 144, on the report of a medical officer that he is capable of making his defence, or
(b) if such person is detained in a jail under sub-section
(5) of section 144, on a certificate of the Inspector-General of Prisons and if such person is detained in a lunatic asylum under the said sub-section on a certificate of any two or more of the visitors of such asylum that he is capable of making his defence.
take steps to have such person tried by the same or another court-
martial for the offence with which he was originally charged, or, if the offence is a civil offence, by a criminal court.
146.Transmission to Central Government of orders under section 145.146.Transmission to Central Government of orders under section
145. A copy of every order made by an officer under section 145 for the trial of the accused shall forthwith be sent to the Central
Government,
147.Release of lunatic accused.
147.Release of lunatic accused. Where any person is in custody under sub-section (4) of section 144 or under detention under sub-
section (5) of that section-
(a) if such person is in custody under the said sub-
section (4), on the report of a medical officer, or
(b) if such person is detained under the said sub-section
(5), on a certificate from any of the authorities mentioned in clause (b) of section 145 that, in the judgment of such officer or authority such person may be released without danger of his doing injury to himself or to any other person,
the Central Government may order that such person be released, or detained in custody, or transferred to a public lunatic asylum if he has not already been sent to such an asylum.
148.Delivery of lunatic accused to relatives.
148.Delivery of lunatic accused to relatives. Where any relative or friend of any person who is in custody under sub-section (4) of section 144 or under detention under sub-sec-
194.
tion (5) of that section desires that he should be delivered to his care and custody, the Central Government may upon application by such relative or friend and on his giving security to the satisfaction of that Government that the person delivered shall be properly taken care of and prevented from doing injury to himself or any other person, and be produced for the inspection of such officer, and at such times and places, as the Central Government may direct, order such person to be delivered to such relative or friend.
149.Order for custody and disposal of property pending trial.
149.Order for custody and disposal of property pending trial.
When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before a court-martial during a trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the trial, and if the property is subject to speedy or natural decay may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
150.
Order for disposal of property regarding which offence is committed.
150.Order for disposal of property regarding which offence is committed. (1) After the conclusion of a trial before any court-
martial, the court or the officer confirming the finding or sentence of such court-martial or any authority superior to such officer, may make such order as it or he thinks fit for the disposal by destruction, confiscation, delivery to any person claiming to be entitled to possession thereof, or otherwise of any property or document produced before the court or in its custody, or regarding which any offences appears to have been committed or which has been used for the commission of any offence.
(2) Where any order has been made under sub-section (1) in respect of property regarding which an offence appears to have been committed, a copy of such order signed and certified by the authority making the same may, whether the trial was held within India or not, be sent to a magistrate within whose jurisdiction such property for the time being is situated, and such magistrate shall thereupon cause the order to be carried into effect as if it were an order passed by him under the provisions of the Code of Criminal Procedure, 1898,
(5 of 1898) or any corresponding law in force in 1 [the State of Jammu and Kashmir].
(3) In this section the term “property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any person, but also any property into or for
———————————————————————-
1 Subs. by the Adaptation of Laws (No. 3) Order, 1956, for ” a
Part B State “.
———————————————————————-
194A
which the same may have been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise.
151.Powers of courts martial when certain offences are committed bypersons not subject to this Act.
151.Powers of courts martial when certain offences are committed by persons not subject to this Act. Any trial by a court-martial under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code,
(45 of 1860)and the court-martial shall be deemed to be a court within the meaning of sections 480 and 482 of the Code of Criminal Procedure,
1898 (5 of 1898.)
CHAPTER XIICONFIRMATION AND REVISION
152.Finding and sentence not valid, unless confirmed. No finding or sentence of a general, district or summary general court-martial shall be valid except so far as it may be confirmed as provided by this Act.
153.Power to confirm finding and sentence of general court-martial.
153. Power to confirm finding and sentence of general court-
martial. The findings and sentences of general courts-martial may be confirmed by the Central Government, or by any officer empowered in this behalf by warrant of the Central Government.
154.Power to confirm finding and sentence of district court-martial.
154.Power to confirm finding and sentence of district court-
martial. The findings and sentences of district courts-martial may be confirmed by any officer having power to convene a general court-
martial or by any officer empowered in this behalf by warrant of such officer.
155.Limitation of powers of confirming authority.
155.Limitation of powers of confirming authority. A warrant issued under section 153 or section 154 may contain such restrictions, reservations or conditions as the authority issuing it may think fit.
156.Power to confirm finding and sentence of summary general court-martial.
156.Power to confirm finding and sentence of summary general court-martial. The findings and sentences of summary general courts-
martial may be confirmed by the convening officer or if he so directs, by an authority superior to him.
157.Power of confirming authority to mitigate, remit or commute sentences.
157.Power of confirming authority to mitigate, remit or commute sentences. (1) Subject to such restrictions, reservations or conditions as may be contained in any warrant issued under section 153.or section 154 and to the provisions of sub-sections (2) and (3), a confirming authority may, when confirming the sentence of a court-
martial, mitigate or remit the punishment thereby awarded, or commute that punishment for any punishment or punishments lower in the scale laid down in section 73.(2) A sentence of transportation shall not be commuted for a sentence of imprisonment or detention for a term exceeding the term of transportation awarded by the court.
(3) A sentence of imprisonment shall not be computed for a sentence of detention for a term exceeding the term of imprisonment awarded by the court.
158.Confirming of findings and sentences on board a ship.
158.Confirming of findings and sentences on board a ship. When any person subject to this Act is tried and sentenced by a court-
martial while on board a ship, the finding and sentence so far as not confirmed and executed on board the ship, may be confirmed and executed in like manner as if such person had been tried at the port of disembarkation.
159.Revision of finding or sentence.
159.Revision of finding or sentence. (1) Any finding or sentence of a court-martial may be once revised by order of the confirming authority and on such revision,
196.the court, if so directed by the confirming authority, may take addi-
tional evidence.
(2) The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent.
(3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the court shall proceed with the revision, provided that, if a general court-martial, it still consists of five officers, or, if a summary general or district court-
martial, of three officers.
160.
Alteration of finding or sentence in certain cases.
160.Alteration of finding or sentence in certain cases. (1) Where a finding of guilty by a court-martial, which has been confirmed, is found for any reason to be invalid or cannot be supported by the evidence, the authority which would have had power under section 177.to commute the punishment awarded by the sentence, if the finding had been valid, may substitute a new finding and pass a sentence for the offence specified or involved in such finding:
Provided that no such substitution shall be made unless such finding could have been validly made by the court-martial on the charge and unless it appears that the court-martial must have been satisfied of the facts establishing the offence.
(2) Where a sentence passed by a court-martial which has been confirmed not being a sentence passed in pursuance of a new finding substituted under sub-section (1), is found for any reason to be invalid, the authority referred to in sub-section (1) may pass a valid sentence.
(3) The punishment awarded by a sentence passed under subsection
(1) or sub-section (2) shall not be higher in the scale of punishments than, or in excess of, the punishment awarded by, the sentence for which a new sentence is substituted under this section.
(4) Any finding substituted, or any sentence passed, under this section shall for the purposes of this Act and the rules made there-
under have effect as if it were a finding or sentence, as the case may be, of a court-martial.
161.Remedy against order finding or sentence of court-martial.
161.Remedy against order finding or sentence of court-martial.
(1) Any person subject to this Act who considers himself aggrieved by any order passed by a court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court-martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
197.(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of a court-martial which has been confirmed, may present a petition to the Central Government, 1[the
Chief of the Air Staff] or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central
Government, 1[the Chief of the Air Staff] or other officer, as the case may be, may pass such order thereon as it or he thinks fit.
162.Annulment of proceedings.
162.Annulment of proceedings. The Central Government, 1[the Chief of the Air Staff] or any prescribed officer may annul the proceedings of any court-martial on the ground that they are illegal or unjust.
CHAPTER XIIIEXECUTION OF SENTENCES
163.Form of sentence of death. In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead, or shall suffer death by being shot to death.
164.Commencement of sentence of transportation or imprisonment.
164.Commencement of sentence of transportation or imprisonment.
Whenever any person is sentenced by a court-martial under this Act to transportation, imprisonment or detention the term of his sentence shall, whether it has been revised or not, be reckoned to commence on the day on which the original proceedings were signed, by the presiding officer.
165.Execution of sentence of transportation.
165.Execution of sentence of transportation. Whenever any sentence of transportation is passed under this Act or whenever any sentence of death be commuted to transportation, the commanding officer of the person under sentence or such other officer as may be prescribed shall forward a warrant in the prescribed form to the officer-in-charge of the civil prison in which such person is to be confined and shall arrange for his despatch to such prison with the warrant.
166.Execution of sentence of imprisonment.
166.Execution of sentence of imprisonment. (1) Whenever any sentence of imprisonment is passed under this Act or whenever any sentence of death or transportation is commuted to imprisonment, the confirming officer or such other officer as may be prescribed, shall, save as otherwise provided in sub-sections (3) and (4), direct either that the sentence shall be carried out by confinement in a military or air force prison or that it shall be carried out by confinement in a civil prison.
(2) When a direction has been made under sub-section (1) the commanding officer of the person under sentence or such other officer as may be prescribed shall forward a warrant in the prescribed form
———————————————————————-
1 Subs. by Act 19 of 1955, s. 2 and sch. for ” the Commander-in-
Chief”.
———————————————————————-
198.to the officer-in-charge of the prison in which such person is to be confined and shall arrange for his despatch to such prison with the warrant.
(3) In the case of a sentence of imprisonment for a period not exceeding three months, the officers referred to in sub-section (1)
may direct that the sentence shall be carried out by confinement in air force custody instead of in a civil or military or air force prison.
(4) On active service, a sentence of imprisonment may be carried out by confinement in such place as the officer commanding the forces in the field may from time to time appoint.
167.Temporary custody of offender.
167.Temporary custody of offender. Where a sentence of transportation or imprisonment is directed to be undergone in a civil prison, the offender may be kept in military or air force custody or in any other fit place, till such time as it, is possible to send him to a civil prison.
168.Execution of sentence of imprisonment in special cases.
168.Execution of sentence of imprisonment in special cases.
Whenever, in the opinion of an air or other officer commanding a group, any sentence or portion of a sentence of imprisonment cannot for special reasons conveniently be carried out in a military or air force prison or in air force custody in accordance with the provisions of section 166 such officer may direct. that such sentence or portion of sentence shall be carried out by confinement in any civil prison or other fit place.
169.Conveyance of prisoner from place to place.
169.Conveyance of prisoner from place to place. A person under sentence of transportation or imprisonment may, during his conveyance from place to place, or when on board ship, aircraft, or otherwise, be subjected to such restraint as is necessary for his safe conduct and removal.
170.
Execution of sentence of detention.
170.Execution of sentence of detention. Whenever any sentence of detention is passed under this Act, or whenever any sentence of death, transportation or imprisonment is commuted to detention, the sentence shall be carried out by detaining the offender in any military or air force detention barracks, detention cells or other military or air force custody; and when the sentence is to be carried out by detention in any military or air force detention barracks, the commanding officer of the person under sentence or such other officer as may be prescribed shall forward a warrant in the prescribed form to the officer-in-charge of the detention barracks in which the person under sentence is to be detained and shall forward the person under sentence to such detention barracks with the warrant.
171.Communication of certain orders to prison officers.
171.Communication of certain orders to prison officers. Whenever an order is duly made under this Act setting aside or varying any sentence, order or warrant under which any person is confined in a civil, military or air force prison or detained in a military or air force detention barracks a warrant in accordance with
199.such order shall be forwarded by the officer making the order, or his staff officer, or such other person as may be prescribed, to the officer-in-charge of the prison or detention barracks in which such person is confined.
172.Execution of sentence of fine.
172.Execution of sentence of fine. When a sentence of fine is imposed by a court-martial under section 71 whether the trial was held within India or not, a copy of such sentence, signed and certified by the confirming officer may be sent to any magistrate in India, and such magistrate shall thereupon cause the fine to be recovered in accordance with the provisions of the Code of Criminal Procedure,
1898, (5 of 1898.) or any corresponding law in force in 1 [the State of Jammu and Kashmir] for the levy of fines as if it were a sentence of fine imposed by such magistrate.
173.Establishment and regulation of air force prisons.
173.Establishment and regulation of air force prisons. The
Central Government may set apart any building or part of a building, or any place under its control, as an air force prison or detention barracks for the confinement of persons sentenced to imprisonment or detention under this Act.
174.Informality or error in the order or warrants.
174.Informality or error in the order or warrants. Whenever a person is sentenced to transportation, imprisonment or detention under this Act, and is undergoing the sentence in any place or manner in which he might be confined under a lawful order or warrant in pursuance of this Act, the confinement of such person shall not be deemed to be illegal only by reason of any informality or error in or as respects the order, warrant or other document, or the authority by which, or in pursuance whereof such person was brought into or is confined in any such place, and any such order, warrant or document may be amended accordingly.
175.Power to make rules in respect of prisons and prisoners.
175.Power to make rules in respect of prisons and prisoners. The
Central Government may make rules providing.
(a) for the government, management and regulation of air force prisons and detention barracks;
(b) for the appointment, removal and powers of inspectors, visitors, governors and officers thereof ;
(c) for the labour of prisoners undergoing confinement therein, and for enabling such prisoners or persons to earn by special industry and good conduct, a remission of a portion of their sentence;
———————————————————————
1 Subs. by the Adaptation of Laws (No. 3) Order, 1956, for ” a
Part B State”.
———————————————————————-
200
(d) for the safe custody of such prisoners or persons and the maintenance of discipline among them and the punish-
ment, by personal correction, restraint or otherwise, of offences committed by them;
(e) for the application to air force prisons or detention barracks of any of the provisions of the Prisons Act, 1894,
(9 of 1894) relating to the duties of officers of prisons and the punishment of persons not being prisoners ;
(f) for the admission into any prison, at proper times and subject to proper restrictions, of persons with whom prisoners may desire to communicate, and for the consultation by prisoners under trial with their legal advisers without the presence as far as possible of any third party within hearing distance.
176.Restriction of rule-making power in respect to corporal punishment.
176.Restriction of rule-making power in respect to corporal punishment. Rules made under section 175 shall not authorise corporal punishment to be inflicted for any offence, nor render the imprison-
ment more severe than it is under any law for the time being in force relating to civil prisons in India.
CHAPTER XIVPARDONS, REMISSIONS AND SUSPENSIONS
177.Pardon and remission. When any person subject to this Act has been convicted by a court-martial of any offence, the Central
Government, 1[the Chief of the Air Staff], an air or other officer commanding a group of, or the prescribed officer, may-
(a) either with or without conditions which the person sentenced accepts, pardon the person or remit the whole or any part of the punishment awarded; or
(b) mitigate the punishment awarded; or
(c) commute such punishment for any less punishment or punishments mentioned in this Act:
Provided that a sentence of transportation shall not be commuted for a sentence of imprisonment for a term exceeding the term of transportation awarded by the
———————————————————————–
1 Subs. by Act 19 of 1955, s. 2 and Sch., for “the Commander-in-
Chief”.
———————————————————————–
200A
court ; and a sentence of imprisonment shall not be com-
muted for a sentence of detention for a term exceeding the term of imprisonment so awarded;
(d) either with or without conditions which the person sentenced accepts, release the person on parole.
178.Cancellation of conditional pardon, release on parole or remission.
178.Cancellation of conditional pardon, release on parole or remission. (1) If any condition on which a person has been pardoned or released on parole or a punishment has been remitted is, in the opinion of the authority which granted the pardon, release or remis-
sion, not fulfilled, such authority may cancel the pardon, release or
201.remission, and thereupon the sentence of the court shall be carried into effect as if such pardon, release or remission had not been granted.
(2) A person whose sentence of transportation, imprisonment or detention is carried into effect under the provisions of sub-section
(1) shall undergo only the unexpired portion of his sentence.
179.Reduction of warrant officer or non-commissioned officer.
179.Reduction of warrant officer or non-commissioned officer.
When under the provisions of section 79 a warrant officer or a non-
commissioned officer is deemed to be reduced to the ranks, such reduction shall, for the purpose of section 177 be treated as a punishment awarded by a sentence of a court-martial.
180.
Suspension of sentence of transportation, imprisonment or detention.
180.Suspension of sentence of transportation, imprisonment or detention. (1) Where a person subject to this Act is sentenced by a court-martial to transportation, imprisonment or detention, the
Central Government, 1[the Chief of the Air Staff], or any officer empowered to convene a general or a summary general court-martial may suspend the sentence whether or not the offender has already been committed to prison or to air force custody.
(2) The authority or officer specified in sub-section (1) may in the case of an offender so sentenced direct that, until the orders of such authority or officer have been obtained, the offender shall not be committed to prison or to air force custody.
(3) The powers conferred by sub-sections (1) and (2) may be exercised in the case of any such sentence which has been confirmed, reduced or commuted.
181.Orders pending suspension.
181.Orders pending suspension. A confirming officer may, when confirming any sentence referred to in section 180, direct that the offender be not committed to prison or to air force custody until the orders of the authority or officer specified in section 180 have been obtained.
182.Release in suspension.
182.Release in suspension. Where a sentence is suspended under section 180, the offender shall forthwith be released from custody.
183.Computation of period of suspension.
183.Computation of period of suspension. Any period during which the sentence is under suspension shall be reckoned as part of the term of such sentence.
184.Order after suspension.
184.Order after suspension. The authority or officer specified in section 180 may, at any time while a sentence is suspended, order-
(a) that the offender be committed to undergo the unexpired portion of the sentence, or
(b) that the sentence be remitted.
185.Reconsideration of case after suspension.
185.Reconsideration of case after suspension. (1) Where a sentence has been suspended, the case may at any time, and shall, at intervals of not more than four months, be reconsidered by the authority or officer specified in section 180, or by any
———————————————————————-
1 Subs. by Act 19 of 1955, s. 2 and sch, for ” the Commander-in-
Chief “.
———————————————————————-
202.air or other officer not below the rank of squadron leader duly authorised by the authority or officer specified in section 180.
(2) Where on such reconsideration by the officer so authorised it appears to him that the conduct of the offender since his conviction has been such as to justify a remission of the sentence, he shall refer the matter to the authority or officer specified in section 180.
186.Fresh sentence after suspension.
186.Fresh sentence after suspension. Where an offender, while a sentence on him is suspended under this Act, is sentenced for any other offence, then-
(a) if the further sentence is also suspended under this
Act, the two sentences shall run concurrently;
(b) if the further sentence is for a period of three months or more and is not suspended under this Act, the offender shall also be committed to prison or air force custody for the unexpired portion of the previous sentence, but both sentences shall run concurrently; and
(c) if the further sentence is for a period of less than three months and is not suspended under this Act, the offender shall be so committed on that sentence only, and the previous sentence shall, subject to any order which may be passed under section 184 or section 185, continue to be suspended.
187.Scope of power of suspension.
187.Scope of power of suspension. The powers conferred by sections 180 and 184 shall be in addition to and not in derogation of, the power of mitigation, remission and commutation.
188.Effect of suspension and remission on dismissal.
188.Effect of suspension and remission on dismissal. (1) Where in addition to any other sentence the punishment of dismissal has been awarded by a court-martial, and such other sentence is suspended under section 180, then, such dismissal shall not take effect until so ordered by the authority or officer specified in section 180.
(2) If such other sentence is remitted under section 184, the punishment of dismissal shall also be remitted.
CHAPTER XVRULES
189.Power to make rules. (1) The Central Government may make rules for the purpose of carrying into effect the provisions of this
Act.
———————————————————————-
1 See The Indian Air Force Act Rules, 1950, Gazette of India, Extraordinary, 1950, Pt. II, sec. 4, p. 7. By rule 13 of these Rules all rules made before the commencement of this Act so far as they are not inconsistent with this Act and with certain exceptions continue in force.
———————————————————————-
203.(2) Without prejudice to the generality of the power conferred by sub-section (1), the rules made thereunder may provide for-
(a) the removal, retirement, release or discharge from the service of persons subject to this Act ;
(b) the amount and incidence of fines to be imposed under section 90 ;
(c) the specification of the punishment which may be awarded as field punishments under sections 77 and 82 ;
(d) the assembly and procedure of courts of inquiry, the recording of summaries of evidence and the administration of oaths or affirmations by such courts ;
(e) the convening and constituting of courts-martial and the appointment of prosecutors at trials by courts-martial;
(f) the adjournment, dissolution and sitting of courts-
martial;
(g) the procedure to be observed in trials by courts-
martial and the appearance of legal practitioners thereat ;
(h) the confirmation, revision and annulment of, and petitions against the findings and sentences of courts-
martial;
(i) the carrying into effect of sentences or courts-martial;
(j)the forms of orders to be made under the provisions of this
Act relating to courts-martial, transportation, imprisonment and detention;
(k) the constitution of authorities to decide for what persons, to what amounts and in what manner, provision should be made for dependants under section 100 and the due carrying out of such decisions ;
(l) the relative rank of the officers, junior commissioned officers, warrant officers, petty officers and non-commis-
sioned officers of the regular Army, Navy and Air Force when acting together;
(m) any other matter directed by this Act to be prescribed.
190.
Power to make regulations.
190.Power to make regulations. The Central Government may make regulations for all or any of the purposes of this Act other than those specified in section 189.
204.191.Publication of rules and regulations in Gazette.
191.Publication of rules and regulations in Gazette. All rules and regulations made under this Act shall be published in the Official
Gazette and, on such publication, shall have effect as if enacted in this Act.
1[191A.Laying of rules and regulations before
Parliament. Every rule and every regulation made under this
Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both
Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be;
no, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.]
192.Repeal.
192. [Repeal.] Rep. by the Repealing and Amending Act, 1957 (36.of 1957), s. 2 and Sch. I.
CHAPTER XVITRANSITORY PROVISIONS
193.Definition of “British officer”.
193.Definition of “British officer”. (1) In this Chapter “British officer” means a person of non-Indian domicile holding a commission in
His Majestys Air Forces and serving in the Air Force.
(2) The expression ” superior officer ” in this Act shall be deemed to include a British officer.
194.Powers of British officer.
194.Powers of British officer. A British officer shall have all the powers conferred by this Act on an officer of corresponding rank or holding a corresponding appointment.