DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

NAME OF THE PROJECT TOPIC

OFFENCES RELATING TO ARMY, NAVY AND AIR FORCE
(SECTION 131 TO SECTION 138)

SUBJECT
INDIAN PENAL CODE

NAME OF THE FACULTY

DR..P. VARALAXMI

NAME OF THE STUDENT: ANGELA ELSA JOHN

REGD NO: 2018LLB011
SECTION: A
3RD SEMESTER
ACKNOWLEGMENT

Firstly, I would like to be extremely grateful to my Criminal law teacher, Prof.

Dr. P. Varalaxmi for giving me an opportunity to do this project. I will be
forever indebted to him lending his extraordinary support during the process of
making the project. I would also like to thank my friends and family for
encouraging me, thus helping me complete the project in a limited time frame.

I would also like to thank DSNLU for providing all necessary resources and a
suitable workplace, thus helping me come up with a satisfactory project.
TABLE OF CONTENTS:

1) ACKNOWLEGMENT

2) ABSTRACT

3) INTRODUCTION

4) PURPOSE OF THE CHAPTER

5) CLASSIFICATION OF OFFENCES

6) PROPOSALS FOR REFORM

7) COMPARISON

8) CASES

9) SAMPLE OF A MODEL CHARGE

10) HOW DOES ARMED FORCES DECIDE THE PUNISHMENT FOR

CRIMES

11) CONCLUSION
ABSTRACT

The Indian Penal Code, 1860 deals with the offences relating to army, navy and
Air force in a separate Chapter VII which includes sections from 131 to 138.
These provisions under the IPC stand more or less redundant as they are
governed by their special act. The section under IPC making them redundant is
Section 139 of the Indian Penal Code. The major objective of these provisions
is to maintain the chain of command. This project makes a detailed analysis of
the nature of the crimes under these sections. The laws governing Military,
Army and Air force of different countries are also discussed so as to draw a
better understanding of provisions dealt in hands. The concerns related to
dealing such crimes by their special courts have been expressed. The project
also contains the law commission reforms along with drawing a comparative
analysis between offences under IPC and the Army Act. The project concludes
with making suggestions with regards to the topic at hand while drawing
inferences from the detailed analysis in the chapter.
 INTRODUCTION

Chapter VII of Indian Penal Code, 1860 (Herein after IPC) deals with the
offences relating to army, navy and air force. It relates to the offences which
might be committed by civilian population in relation to the defence personnel.
The essence of this chapter is that it deals with those offences in which the
civilians abet the offences committed by the army, navy or air force personnel.
The laws governing IPC have been seen in usual course to not reach the
offenders. The main reason being that such offences like the act of
insubordination etc. which is a resultant of their abetment may be either trivial
or no offence at all under IPC irrespective of how grave as a breach of military
discipline they are. By the provisions of the Section 139 1 of IPC these acts
despite the fact that they fall under IPC will not be punishable under IPC as
they are subject to punishment under their special acts which they are subject
to. The special acts are-

1. Army Act, 1950 (46 of 1950).

2. Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 (34 of 1934).

3. Air force Act, or the Air Force Act, 1950.

1.1. Purpose of the following chapter under IPC.

The basic purpose of this chapter is to maintain discipline under Army,
Navy and Air Force. The Army, Navy and Air Force have certain code of
conduct for the men and women serving in them. But this chapter is from the

1
S. 139, The Indian Penal Code, 1860.
 point of view of the civilians. What about the third party or civilians who
could hamper the discipline and chain of command in them. Hence to cater
to this the following chapter was added in order to maintain that perfect
discipline and order in the armed forces by defining these crimes from
civilian angle in relation to Army, Navy and Air Force.

2. Classification of Offences
The Indian Penal Code under its separate Chapter VII deals with the
offences relating to the army, navy and air force in the sections 131 to 138.
The classification for the abetment of offences by the civilian population
relating to defence personnel can be studied in the following manner-

2.1. Abetment of Mutiny.

Section 131 and 132 deals with abetment of mutiny.

Section 131: Abetting mutiny, or attempting to seduce a soldier, sailor or

airman from his duty- Whoever abets the committing of mutiny by an
officer, soldier, sailor or airman, in the Army, Navy or Air Force of the
Government of India or attempts to seduce any such officer, soldier, sailor
or airman from his allegiance or his duty, shall be punished with
imprisonment for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine. 2

2
S. 131, The Indian Penal Code, 1860.
 Section 132: Abetment of mutiny, if mutiny is committed in consequence
thereof.—Whoever abets the committing of mutiny by an officer, soldier,
sailor or airman, in the Army, Navy or Air Force of the Government of
India, shall, if mutiny be committed in consequence of that abetment, be
punished with death or with imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and shall also be liable
to fine.3

2.2. Abetment of Assault by an Officer on a Superior Officer.

Section 133- Abetment of assault by soldier, sailor or airman on his
superior officer, when in execution of his office.—Whoever abets an assault
by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of
the Government of India, on any superior officer being in the execution of
his office, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine.4

Section 134: Abetment of such assault, if the assault committed.—Whoever

abets an assault by an officer, soldier, sailor or airman, in the Army, Navy or
Air Force of the Government of India, on any superior officer being in the
execution of his office, shall, if such assault be committed in consequence of
that abetment be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.5

2.3. Abetment of Desertion.

3
Ibid, s. 132.
4
Ibid, s. 133.
5
Ibid, s. 134.
 Section 135: Abetment of desertion of soldier, sailor or airman.—Whoever,
abets the desertion of any officer, soldier, sailor or airman, in the Army,
Navy or Air Force of the Government of India, shall be punished with
imprisonment of either description for a term which may extend to two
years, or with fine, or with both. 6

Section 136: Harbouring deserter.—Whoever, except as hereinafter

excepted, knowing or having reason to believe that an officer, soldier, sailor
or airman, in the Army, Navy or Air Force of the Government of India, has
deserted, harbours such officer, soldier, sailor or airman, shall be punished
with imprisonment of either description for a term which may extend to two
years, or with fine or with both. 7
Exception- This provision does not extend to the case in which the harbour
is given by a wife to her husband.

Section 137: Deserter concealed on board merchant vessel through

negligence of master.—The master or person in charge of a merchant vessel,
on board of which any deserter from the Army, Navy or Air Force of the
Government of India is concealed, shall, though ignorant of such
concealment, be liable to a penalty not exceeding five hundred rupees, if he
might have known of such concealment but for some neglect of his duty as
such master or person in charge, or but for some want of discipline on board
of the vessel.8

2.4. Abetment of an Act of Insubordination.

6
Ibid, s. 135.
7
Ibid, s. 136.
8
Ibid, s. 137.
 Section 138: Abetment of act of insubordination by soldier, sailor or airman.—
Whoever abets what he knows to be an act of insubordination by an officer,
soldier, sailor or airman, in the Army, Navy or air Force, of the Government
of India, shall, if such act of insubordination be committed in consequence of
that abetment, be punished with imprisonment of either description for a term
which may extend to six months, or with fine, or with both. 9

9
Ibid, s. 138.
3. Proposals for Reform

The Fifth Law Commission report discusses about certain reforms under the
Chapter VII of IPC. A few of the prominent parts are discussed as follows:

(1) Extension of scope of who is governed by this chapter-

The chapter is only limited to only army, navy and air force personnel and does
not extend to all other armed forces of the Union of India. Thus the
recommendation was to change the subject matter to Offences relating to armed
forces instead of offences relating to army, navy and air force. They even
proposed to define it in a new section by way of addition of Section 130A. The
contents of the section aimed at defining the key expressions ‘armed forces’,
‘member’ and ‘officer’.

(2) Enhancement of punishment to 2 years from 6 months in case of abetment

of an offence insubordination when the attempt is successful.

(3) Deletion of Section 137 on grounds that it does not appear to be of any
consequence.

(4) Addition of Section 138A and 138B, punishable with simple or rigorous
imprisonment for a term up to 3 years, or with fine, or with both. The crimes to
be defined by this section are inciting mutiny or an act of insubordination and
dissuading from recruitment to armed forces.

(5) The punishment under Section 135 is increased to 5 years where the offence
of desertion actually takes place. This would help in differentiating the
magnitude of when it’s only abetment and when the desertion takes place on
account of the abetment.
(6) Referring to the kinds and quantum of punishment provided for abetment to
mutiny, not committed in consequence thereof or otherwise, and for attempt to
seduce a defense personnel (sections 131 & 132, IPC), it opined that the
punishment of imprisonment for life provided for abetment to mutiny that is not
committed in consequence of the abetment and for an attempt to seduce defence
service personnel is unduly harsh.

It suggested that abetment of mutiny by an officer or a member of armed forces

should be punished: (i) with death or imprisonment for life or with rigorous
imprisonment for a term up to fourteen years (in lieu of the existing ten years),
if mutiny is committed in pursuance of the abetment, and

(ii) with rigorous imprisonment for a term up to ten years, if mutiny is not
committed in pursuance of the abetment. An attempt to seduce an officer or
member of the armed forces from his duty, it opined, should be made
punishable by rigorous imprisonment for a term up to ten years with fine. 10

Effect given to these recommendations in the Indian Penal Code (Amendment)

Bill 1978, premised on recommendations of the Fifth Law Commission, gives
effect to these proposals for reform.

The Fourteenth Law Commission not only endorsed the proposed reforms but
also approved contents of the 1978 Bill incorporating those suggestions. 11

However, these proposals are not yet transformed into statutory provisions as
the 1978 Amendment Bill, as mentioned earlier, lapsed due to the dissolution of
the Lok Sabha during the year.

4. Comparison
10
P.S.A. Pillai, Criminal Law, LexisNexis, Gurgaon, Haryana, 2014, pg. 355.
11
Law Commission of India, ‘One Hundred and Fifty-Sixth Report: The Indian Penal Code’, Government of
India, 1997, ch. XII.
The comparative analysis of the offences punishable under IPC and the Army
Act, 1950 is as follows:
(1) Section 131 and 132 of the Indian Penal Code, 1950 and Section 37 of the
Army Act, 1950 –
Under the Army Act the same is punishable with capital punishment.
Section 37 of Army Act- Mutiny
Any person subject to this Act who commits any of the following offences, that
is to say,-
(a) begins, incites, causes, or conspires with any other persons to cause any
mutiny in the military, naval or air forces of India or any forces co-operating
therewith ; or
(b) joins in any such mutiny; or
(c) being present at any such mutiny, does not use his utmost endeavours to
suppress the same ; or
(d) knowing or having reason to believe in the existence of any such mutiny, or
of any intention to mutiny or of any such conspiracy, does not, without delay,
give information thereof to his commanding or other superior officer; or
(e) endeavours to seduce any person in the military, naval or air forces of India
from his duty or allegiance to the Union; shall, on conviction by court-martial,
be liable to suffer death or such less punishment as is in this Act mentioned. 12

(2) Section 133 and 134 of the Indian Penal Code, 1950 and section 40 of the
Army Act.
Under the army act such offence same is punishable with imprisonment up to
14 years.
Section 40 of Army Act- Striking or threatening superior officers
Any person subject to this Act who commits any of the following offences, that
is to say,-

12
The Army Act, 1950, s. 37.
(a) uses criminal force to or assaults his superior officer ; or
(b) uses threatening language to such officer ; or
(c) uses insubordinate language to such officer; shall, on conviction by court-
martial, if such officer is at the time in the execution of his office or, if the
offence is committed on active service, be liable to suffer imprisonment for a
term which may extend to fourteen years or such less punishment as is in this
Act mentioned; and in other cases, be liable to suffer imprisonment for a term
which may extend to ten years or such less punishment as is in this Act
mentioned:
Provided that in the case of an offence specified in clause (c), the imprisonment
shall not exceed five years.13

(3) Section 135 and 136 of the Indian Penal Code, 1950 and Section 38 of the
Army Act.
The same is punishable with imprisonment up to 7 years under the army act.
Section 38- Desertion and aiding desertion
(1) Any person subject to this Act who deserts or attempts to desert the service
shall, on conviction by court-martial, if he commits the offence on active
service or when under orders for active service, be liable to suffer death or such
less punishment as is in this Act mentioned; and if he commits the offence
under any other circumstances, be liable to suffer imprisonment for a term
which may extend to seven years or such less punishment as is in this Act
mentioned.
(2) Any person subject to this Act who knowingly harbours any such deserter
shall, on conviction by court-martial, be liable to suffer imprisonment for a term
which may extend to seven years or such less punishment as is in this Act
mentioned.
(3) Any person subject to this Act who, being cognizant of any desertion or
attempt at desertion of a person subject to this Act, does not forthwith give
notice to his own or some other superior officer, or take any steps in his power
to cause such person to be apprehended, shall, on conviction by court-martial,

13
Ibid, s. 40.
be liable to suffer imprisonment for a term which may extend to two years or
such less punishment as is in this Act mentioned. 14

(4) Section 138 of the Indian Penal Code, 1950 and Section 42 of the Army Act,
1950..
The same is punishable with seven years of imprisonment.
Section 42 of the Army Act- Insubordination and obstruction
Any person subject to this Act who commits any of the following offences, that
is to say,-
(a) being concerned in any quarrel, affray, or disorder, refuses to obey any
officer, though of inferior rank, who orders him into arrest, or uses criminal
force to or assaults any such officer ; or
(b) uses criminal force to, or assaults any person, whether subject to this Act or
not, in whose custody he is lawfully placed, and whether he is or is not his
superior officer; or
(c) resists an escort whose duty it is to apprehend him or to have him in charge
; or (d) breaks out of barracks, camp or quarters ; or
(e) neglects to obey any general, local or other order; or
(f) impedes the provost-marshal or any person lawfully acting on his behalf, or
when called upon, refuses to assist in the execution of his duty a provost-
marshal or any person lawfully acting on his behalf ; or
(g) uses criminal force to or assaults any person bringing provisions or supplies
to the forces; shall, on conviction by court-martial, be liable to suffer
imprisonment for a term which may extend, in the case of the offences specified
in clauses (d) and (e) to two years, and in the case of the offences specified in
the other clauses to ten years or such less punishment as is in this Act
mentioned. 15

14
Ibid, s. 38.
15
Ibid, s. 42.
5. Cases and Sample of a Model Charge
The following chapter contains the relevant cases to the chapter seven of the
Indian Penal Code, 1860. Chapter seven lacks precedents but here are few cases
dealing with few aspects.

In the case of J.K. Cotton v State of U.P.16, it was held that, “Persons subject
to these special acts are punishable under those Acts and not under the Penal
Code. The provisions of 139 have been incorporated as an abundant caution
because the law is well settled that when there is a conflict between specific
provision and the general provision specific provision prevails over general
provision. General provision however applies only to such cases which are not
governed by the special provision. It may further be recalled that a special rule
applies to penal statutes. J.K. Cotton and Weaving Mills Co., Ltd., thereupon
filed an application under Art. 226 of the Constitution to the High Court of
Judicature at Allahabad praying for a writ in the nature of certiorari calling for
the records of the case from the Labour Appellate Tribunal of India and
quashing the order of the Tribunal which has been mentioned above. Mr.
Justice Chaturvedi, before whom this application came up for hearing held that
the application under cl. 5(a) was maintainable and the Appellate Tribunal had
erred in holding otherwise. Being however, of opinion that there had been
undue delay in making this application for a writ, he dismissed the petition on
that ground. In the Letters Patent appeal preferred by the company against this
decision a preliminary objection was raised on behalf of the Union representing
the workmen that the Allahabad High Court could not call for the records and
quash the order of the Labour Appellate Tribunal of India as those records were

16
J.K. Cotton v State of U.P., AIR 1961 SC 1170.
in Calcutta and consequently beyond the reach of the Court. The learned Judges
who heard the appeal upheld this objection and dismissed the appeal. They
however issued a certificate under Art. 132(1)and Art. 133(1)(c) of the
Constitution. Thereafterthe company also obtained special leave from this court
to appeal directly against the order of the Labour Appellate Tribunal of India.
These two appeals preferred -one on the certificate granted by theHigh Court
and the other on the strength of the special leave granted by this Court, have
been heard together.

The main controversy, as already indicated, is on the question of the

maintainability of the application under cl. 5(a) of the Government order. This
order issued by the Governor of the United Provinces in exercise of the powers
conferred on him by the U. P. Industrial Disputes Act, 1947 'contains detailed
provisions as regards the settlement of industrial disputes. Applying this rule of
construction that in cases of conflict between a specific provision and a general
provision the specific provision prevails over the general provision and the
general provision applies only to such cases which are not covered by the
special provision, we must hold that cl. 5(a) has no application in a case where
the special provisions of cl. 23 are applicable. If a later statute again describes
an offence created by an earlier one, and affixes a different punishment to it, or
varies the procedure applicable, the earlier statute is impliedly repealed by the
later.”17

Cases with reference to Section 131- The offence of ‘mutiny’ consists in

extreme insubordination, as if a soldier resists by force, or if a number of
soldiers rise against or oppose their military superior, such acts proceeding from
17
Maxwell on Interpretation of Statutes, 12th ed., p.195.
alleged or pretended grievances of a military nature. Acts of a riotous nature
directed against the Government or civil authorities rather than against military
superiors seem also to constitute mutiny. 18

In Pindi Das v. Emperor, Publishing a letter purported to be willing by a

sympathizer of an Indian Soldier trying to impress upon the Indian Soldiers to
come out of their allegiances answers an offence under Section 13. The printer
abets the offence. 19 In this case, a letter was published by the Pindi Das to be
willing to sympathise an Indian soldier and to impress upon the soldiers to
come out of their allegiances. It was held that the printer, Mr.Pindi Das was a
person who abetted the offence.

In the case of Lance Havaldar v. High Court of Madras

The Madras High Court in 2009 refused to transfer case (Lance Havaldar
killing his wife) to Military Court. The view was that military men accused of
crimes like murder, rape etc. must be tried by criminal courts than military
courts. he Madras High Court Bench has held that the armed forces personnel
accused of committing murder, rape and other such crimes could be tried in a
criminal court and not necessarily through court martial.

The court's observation came while dismissing a revision petition filed by a

Lance Havildar accused of killing his wife while on leave, challenging the order
of a Magistrate who refused to transfer the case to an Army court.

Justice A Selvam in his order said both the criminal court as well as the Army
courts enjoyed concurrent jurisdiction to try criminal offences.

18
M & M 112.
19
Pindi Das v Emperor, 6 CrLJ 411.
The petitioner was accused of killing his wife during his visit to Usilampatti
near Madurai on leave.

The judge said that as per Section 70 of the Army Act, a person accused of
murder, culpable homicide or rape should not be tried through court martial
unless the offence had been committed while he was in active service or at any
place outside the country or at a frontier post.

The petitioner had claimed that he should be tried only through a court martial
because casual leave comes within the purview of "active service" as held by
the Supreme Court in 1995.

Justice Selvam agreed that a soldier on casual leave could be considered to be

in active service. However, he said that neither Army act nor the code of
criminal procedure prevented a criminal court from conducting trial against
servicemen.

Something similar was discussed in the case of Major E. G. Barsay v. The

State of Bombay20. In this case The prosecution case may be briefly stated.
There was a depot called the Dehu Vehicle Depot in which military stores were
kept. In the year 1944 Col. Rao, the Chief Ordnance Officer, was in charge of
the Depot; Col. Sindhi, the Station Commandant, and Brig. Wilson, the
Brigadier, Ordnance, Southern Command, were his superior officers. Accused
No. 1, Major Barsay, was second in command in the Depot and was in charge
of stores section; he was subordi- nate to Col. Rao. Major Nag, another
subordinate to Col. Rao, was in charge of the administration of the Depot. One

20
Major E. G. Barsay v The State of Bombay, 1962 SCR (2) 195.
Capt. Pratap Singh was the Security Officer in the Depot; but, during the period
in question, one Lawrence was acting as the Security Officer in place of Capt.
Pratap Singh. Kochhar, accused No. 2, who was on leave from October 25,
1954, was recalled to duty by accused No. 1 and was put in charge of kit stores
in the Depot. Avatar singh, accused No. 3, who was working in the Unfit Sub
Park, was transferred to the Kit Stores by accused No. 1 during the absence on
leave of Col. Rao. Accused No. 4, Saighal, was an Ex-Col. and was at one time
the Station Commandant of the Depot; after retirement he had been staying in a
bungalow at a short distance from mile No. 92/7 on the Poona-Bombay Road.
Accused No. 5, Ramchand Gangwani, was a refugee from Sind and he was
running a hotel at Lonnavala. Accused No. 6, Devichand, and one Khemchand,
who is absconding, are sons of accused No. 5. Accused Nos. 4 and 5 were
friends and they were also partners along with one Bhagwan Parshuram of
Bombay in "The Bombay Lonavala Disposal Syndicate". There were large
consignments of Kits in Shed No. 48 of Kit Stores which were unitemized and
unaccounted for in the books of the Depot. The accused entered into a
conspiracy to smuggle out some of the said stores and to make an illegal gain
by selling them at Bombay through accused No. 4.

The brain behind the conspiracy was accused No. 1. The plan chalked out to
implement the object of the conspiracy may be briefly stated. Col. Rao was to
proceed on leave sometime in December 1954 and Maj. Barsay, being the next
in command, was naturally to succeed him as Chief Ordnance Officer of the
Depot during the absence on leave of Col. Rao. The smuggling of the goods out
of the Depot was there- fore arranged to take place during the period when Maj.
Barsay was acting as the Chief Ordnance Officer of the Depot. Col. Rao went
on leave from December 11, 1954. Kochhar, the second accused, who was in
charge of the Fit- Park, proceeded on two months' leave of absence with effect
from October 25, 1954, but he was recalled by accused No. 1 and posted as
officer in charge of Kit Stores on November 25, 1954. Accused No. 3,
Avatarsingh, was working in the Unfit Sub Park, and he too was shifted from
there to the Kit Stores on or about November 22, 1954. These two, postings
were made by accused No. 1 without the consent or knowledge of Col. Rao
when he had gone to Delhi on some temporary duty for ten days from
November 20, 1954 to November 30, 1954. On the night of December 1, 1954,
there was a theft of various articles in the Unfit Park of the Depot. Accused No.
1 called in Lawrence, the acting Security Officer, ostensibly to discuss with him
certain matters regarding the theft. During the course of the conversation
accused No. 1 suggested to Lawrence that valuable stores in Shed No. 48 might
be smuggled out and the large amounts expected to be realized from their sale
might be shared between the conspirators, including Lawrence. Presumably to
put him in a suitable frame of mind to accept the suggestion to become a
conspirator, he also hinted to Lawrence that Col. Rao suspected that he
(Lawrence) had a hand in the theft. The scheme outlined by accused No. 1 was
confirmed by accused No. 2 a few days later. According to the plan chalked out
by Maj. Barsay, he was to appoint a board of officers for itemization of
"Specialist Boxed Kits" in Shed No. 17 and once the board started functioning
there would be shuttle of trucks moving from Shed No. 48 to Shed No. 17 and
vice versa and during the movements of those trucks two or three trucks loaded
with valuable stores were to be moved out through the main gate of the Depot
on the pretext of being back-loaded to the Return Stores Sub-Depot. He was
also to take Col. Rao to Shed No. 48 and explain to him that the boxes
contained very few items so that he too, on his return from leave, would not be
surprised at the final result of the itemization. It was also agreed that the scheme
should be pushed through tentatively on December 16, 17 and 18, 1954. But,
for one reason or other, it could not be pushed through during those days, as
Capt. Kapoor was frequently visiting the scene of itemization.

On December 18, 1954, a meeting took place at Maj. Barsay's bungalow and
accused Nos. 1 to 4 and Lawrence attended that meeting. At that meeting the
details of working out the plan to be carried out on December 20, 1954, were
finalized. Kochhar reported to the conspirators that he had briefed Jamadar
Kundanlal, and Lawrence told them that, as per Kochhar's suggestion, he had
already detailed Jamadar Kundanlal on day duty at the main gate during the
next week. Maj. Barsay agreed to get a driver of his confidence detailed on one
of the trucks to be allotted to the Kit Stores and he offered to give orders to
Kochhar on the morning of December 20, 1954, in the presence of all, to
transfer the itemized kits to Shed No. 26 ostensibly for the purpose of
conditioning and preservation. That would enable accused No. 3, Avatar Singh,
to load the stores from Shed No. 17. The first trip was to be of ordinary stores in
which the conspirators were not interested and the second trip was to be of
valuable stores which were to be smuggled out of the gate. Maj. Barsay also
undertook to call Maj. Nag to his office on December 20, 1954 and issue orders
in the presence of Maj. Nag to Lawrence to go to Dehu Ordnance Depot
(D.O.D.) and get the fire hoses which were sent there for repairs. Kochhar
agreed to prepare a bogus voucher on Monday (December 20, 1954) morning,
and Lawrence undertook to provide a bogus gate-pass. Accused No. 4, Saighal,
agreed to keep a lorry and some laborers present near his bungalow for
transshipping the stores.
On the evening of December 19, 1954, Lawrence went to the house of Saighal
and the latter showed him the spot where the stores were to be transshipped.
Thereafter, after taking his dinner, Lawrence went to the Depot at 9 p.m. The
Orderly Officer at the Depot, one Shrinivasan, informed Lawrence that Jamadar
Kundanlal, who was to have been on duty at the main gate on December 20,
1954, was sick and had taken 3 days' leave of absence on medical grounds and
that Maj. Barsay had sent a chit to him asking him to send Lawrence to the
bungalow of Maj. Barsay. Lawrence went to the bungalow of Maj. Barsay, but
could not meet him; and then Lawrence went to the residence of Jamadar
Kundanlal and tried to persuade him to attend to his duty at the main gate on
December 20, 1954.

On December 20, 1954, at about 9.15 a.m. Maj. Barsay called Havaldar Pillay
to his office and asked him to allot a new vehicle to the Kit Stores and to detail
driver Ramban on that vehicle. Havaldar Pillay did accordingly. At about 10
a.m., Maj. Barsay called Maj. Nag and Lawrence to his office and, in the
presence of Maj. Nag, he issued orders to Lawrence to go to Dehu Ordnance
Depot (D.O.D.) personally and get the fire hoses. After Maj. Nag left the place,
Lawrence told Maj. Barsay that Jamadar Kundanlal had reported himself to be
sick and had taken leave of absence and that one Godse was at the main gate.
Maj. Barsay suggested to Lawrence that 26 Jamadar Jogendrasingh may be put
at the main gate in place of Godse, and he informed him that he had fixed upon
Ramban as the driver of the vehicle in which the stores were to be smuggled
out. At about 11 a.m. Lawrence met Maj. Barsay and Kochhar near, Shed No.
48 and was told by Maj. Barsay that the scheme was to proceed according to
schedule. Kochhar and Lawrence then went to Shed No. 17 where Avatarsingh,
accused No. 3, was present. Kochhar told Avatarsingh that he had not prepared
any voucher as it was not necessary. Lawrence had brought an old gate-pass
with him and he handed over the same to Avatarsingh. Truck No. D. D. 5963
was, in the first instance, loaded with ordinary stores and was sent to Shed No.
26. In the meanwhile, Lawrence went to the Depot and asked Godse to take
over at the Unfit Sub Park gate and he ordered Jamadar Jogendrasingh to take
over from Godse at the main gate. As Jamadar Jogendrasingh refused to accept
the gate-pass to be produced by the driver and pass out the vehicle without
making an entry regarding the same in the "Vehicles In and Out Register",
Lawrence gave him a written order to that effect with instructions not to show
or hand over that written order to anybody except himself on his return or to
Maj. Nag. At about 1 p.m. Maj. Barsay told Lawrence that he had become
apprehensive of the scheme succeeding, as he had seen the Station
Commandant's car near the Barrack Office and, therefore, he told him not to
take out the vehicle till that car had gone out. Lawrence agreed and went to
Shed No. 17 where Avatarsingh was present, and Avatarsingh got the truck
loaded and handed over the bogus gate-pass and the duty-slip of the vehicle to
Ramban, and he also asked Lawrence to get into the truck there itself instead of
near the main gate as per the plan. After Lawrence got into the truck, it
proceeded towards the main gate at about 1.40 p.m. At the main gate, Ramban
gave the duty-slip of the vehicle and also the bogus gate-pass to Jamadar
Jogendrasingh and the latter told Lawrence that Maj. Barsay had left a message
for him "not to do it on that day". Lawrence, ignoring the said directions, took
the vehicle out of the gate. At a spot near Talegaon there was a civilian lorry
bearing No. BYL 3289 kept ready by accused Nos. 4, 5 and 6 for transhipping
the stores, and to that place the truck was driven. The two lorries were parked
back to back, and accused No. 6. and the absconding accused Khemchand and
two others started transhipping the stores from the military lorry to the civilian
lorry. At that stage, the police officers appeared at the scene and prevented
further fulfilment of the plan of the accused.

The said facts found by both the courts below implicate accused No. 1 in the
matter of the preparation, laying down of the details of implementation and the
actual carrying out of the scheme of smuggling the goods out of the Depot
through all the stages and thereby establish that the appellant was the main
conspirator and the brain behind the conspiracy. We cannot, therefore, say that
the version given by Lawrence implicating accused No. 1 is not corrobo- rated
by other independent evidence. It follows that the conviction of the appellant by
the High Court is correct. This leads us to the appeal filed by the State against
the judgment of the High Court acquitting accused Nos. 2 and 3 on the ground
that the evidence of Lawrence implicating them in the offence was not
corroborated in material particulars by independent evidence. In this appeal also
we have not allowed learned counsel for the State to canvass the correctness of
the finding arrived at by the High Court on the appreciation of the evidence in
the case. Taking the findings arrived at by the High Court, we find it difficult to
take a different view from that taken by the High Court. In regard to accused
No. 2 the High Court arrived at the following findings: (1) There is no evidence
or allegation on the record to show that there was any understanding between
him and Major Barsay before he left on two months leave. (2) There is no
evidence that Kochhar, accused No. 2, met Lawrence on December 6, 1954. (3)
Accused No. 2 moved Major Barsay by his letter (Ex. 151) to convene the
itemization board. (4) Prior to the appointment of the board and its constitution,
accused No. 2 ordered the shifting of the "specialist boxed kits" from Shed No.
48 to Shed No. 17, but this was done under Major Barsay's instructions. (5)
Accused No. 2 was present when Fernandez was ordered by Major Barsay to
complete the identification of the first set before December 13, even by working
on Sunday the 12th December, and in that connection a written order was
issued by him on December 11. (6) On December 12 Lawrence persuaded
accused No. 2 to go in for two insurance policies. (7) Though according to
Lawrence, Kochhar undertook to prepare a bogus voucher and to be at the
Depot at the opening hours on Monday the 20th to prepare that voucher in the
office of Lawrence, it is admitted that Kochhar refused to issue the voucher. (8)
Accused No. 2 was present at Shed No. 17 when Major Barsay issued orders to
shift the stores to Shed No. 26. And (9) Accused No. 2 accompanied Major
Barsay to Shed No. 19 in the morning and lie was present when the truck was
being loaded for the second trip at Shed No. 17. The High Court found that the
said circumstances, though some of them might raise a suspicion, did not
implicate accused No. 2 in the offence and they are consistent also with his
innocence. Though some of the facts give rise to a suspicion, we cannot say that
the High Court was wrong in holding that the said facts did not corroborate the
evidence of Lawrence in implicating the said accused in the offence.

Now coming to accused No. 3, the High Court found the following facts based
on the evidence other than that of Lawrence: (1) Avatarsing, accused No. 3, was
transferred from Unfit Sub Park to Kit Stores. (2) Accused No. 3 was a party to
the shifting of stores from Shed No. 48 to Shed No. 17 even before the
appointment of the board of itemization. (3) Though Lawrence stated that
Avatarsing expressed his inability to push the scheme on account of Capt.
Kapoor's constant vigilance and visits to Shed No. 17, Lawrence had admitted
that his first contact with Avatarsing was in the noon of 18th December. (4)
There is no evidence that Avatarsing attended the meeting at Major Barsay's on
the 18th. (5) Avatarsing loaded the truck for the first trip and also for the second
trip, and in loading the second trip he used the usual laborers and two outside
workers. (6) After the truck was loaded, he asked Rambhan to take the truck to
D. 0. D. under instructions from the superior officers. (7) The words "D. O. D."
in Ex. 42, the duty slip, were not entered by Avatarsing. The High Court held
that the said facts found on independent evidence did not implicate the said
accused in the offence and they were all consistent with his innocence. Though
some of the findings give rise to suspicion we cannot say that the High Court
was wrong in holding that the said facts found did not corroborate the evidence
of Lawrence in implicating the accused in the offence. We, therefore, accept the
finding of the High Court in regard to accused Nos. 2 and 3. In the result both
the appeals fail and are dismissed. Appeals dismissed.
6. Sample of a Model Charge:

I, ______ (name and office of the Sessions Judge, etc.), hereby charge you
(name etc. of the accused person) as here below:

That you, on or about the _____ day of _____, at ______ within P.S. ______
Distt. ______, abetted the commission of mutiny by………, an officer (or
soldier, or sailor, or airman) in the Army (or Navy or Air Force) of the
Government of India (or attempted to seduce ______ an officer (or soldier, or
sailor, or airman in the Army or Navy or Air force of the Government of India,
from his allegiance (or duty), and thereby committed an offence punishable
under Section 131/132/133/134/135//136/138 of the Indian Penal Code, and
within my cognizance of this Court of Sessions.

And hereby direct that you be tried on the said charges.23

7. How does the Armed Forces Decide Punishment for Crimes?

In countries across the world the defence personnel usually submit to their own
law i.e. the special law that they are governed by. Usually the offences are of
less or sometime with no punishments at all but amongst their discipline they
are considered very harsh and hence they are governed by their personnel laws.

One such example would be the Machil killings in Kashmir in which 6 army
men were sentenced to life imprisonment for cold blooded killings of 3 civilians
passed off as militants.

“They (military personnel) can be tried by civil (criminal) courts if they commit
serious crimes like rape, murder and culpable homicide not amounting to
murder,” explains retired wing commander U.C. Jha who has authored several
books on the subject of military law. However, if the offence is in relation to a
civilian, then military courts have no jurisdiction.

“Machil killings were an act against civilians but the area of operation was
active service and hence the army’s court martial,” explains retired major
general Neelendra Kumar, who was judge advocate general (JAG) of the Indian
Army during 2001-08. JAG is the legal and judicial chief of the Army.

As Kumar says, “it’s a substantial and procedural law that takes care of
everyone from the sepoy to the chief.” As is the case with much of India’s
Penal Code, even the Military Act has remained by and large unchanged from
its colonial days. The proceedings, for instance, are recorded in English. The
majority of the troops and junior commissioned officers are not fluent in the
language, making their access to case papers difficult. During the course of the
court martial, the accused is denied bail and not even allowed to meet his
family, provisions that are available in the trial stage in civil courts.

The problems with this system, experts argue, are manifold. First and foremost,
none of the officers are legally qualified. Secondly, since the convening officer
is of the highest rank, there is the question of whether the other officers who
constitute the court martial can act in an independent manner. “Most army
officers will tell you that the rank of the convening officer plays no role in
determining the outcome. The reason why a board of odd numbers (usually 5) is
constituted is so that if there is dissent, then the ayes gain sway over the nays.
The officer who is not happy or satisfied is required to attach a dissent note,”
explains a serving brigadier who has served on a court martial.

Like India USA also authorizes for a military judicial system and so does other
countries. It is authorized by the Constitution itself. The position is although
different in Germany where the defence personnel are governed under the
ordinary civil jurisdiction. But there exists special acts concerning only to the
soldiers and deal mostly with crimes like mutiny, possession of illegal weapons
etc. There aren’t even federal or military prisons. The position in UK again
resumes to being one of the oldest systems to arrange for military crimes. UK
like India has special defence acts. The position in Canada is such that it Is
governed by one National defence act.
8. Conclusion

Military legal system in India was designed and implemented after the Mutiny
of 1857 to prevent such situations to occur in the future. The political situation
of the country at that time was different and no consideration of Human Rights
was given by the British Government. The system might have been the
necessity of the times but in the present era of welfare state, the concepts of
Human Rights, Fundamental Rights of the Armed forces personnel cannot be
neglected. In the present times, there is a need to value Rules of Natural Justice,
Human Rights, and International developments in Military Laws in other
countries of the world.

The fact that the provisions are mentioned in the Indian Penal Code but the
same cannot be enforced is a baffling point. It leads one to think through the
purpose of the chapter and making an entirely different chapter on the same.

Like India USA also authorizes for a military judicial system and so does other
countries. It is authorized by the Constitution itself in USA. The position is
although different in Germany where the defence personnel are governed under
the ordinary civil jurisdiction. But there exists special acts concerning only to
the soldiers and deal mostly with crimes like mutiny, possession of illegal
weapons etc. There aren’t even federal or military prisons. The position in UK
again resumes to being one of the oldest systems to arrange for military crimes.
UK like India has special defence acts. The position in Canada is such that it is
governed by one National defence act.

Thus the stand is different in different countries with regards to offences related
to army, navy and air force.