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MANUAL OF

BANGLADESH NAVAL LAW

PART I

CHAPTER I

INTRODUCTORY

1. Object of the Manual.-The main object of this Manual is to provide officers in general
with it readily available means of acquiring such legal knowledge as they need for performance
of their duties. It is also intended to be of use to officers and other persons with legal
qualifications who are called upon to assist in the administration of naval1aw.
It is desirable that every officer should have a working knowledge of this Manual, for during
his career he may often have to undertake duties involving a knowledge of it. He may have to act
as a Commanding Officer of a ship or establishment, an Executive Officer, a First Lieutenant, an
Officer of the Watch, an officer of the Day or an Officer-in-Charge of a Training School; he may
be detailed to prepare a summary of evidence or conduct a board of inquiry; he may be ordered to
prosecute or defend at a court-martial or he may be appointed as president or member. For any of
these duties an officer should know his way about the Manual, and if he can acquire an idea of its
lay-out he should have little difficulty in referring speedily to any particular subject as the
occasion requires.

2. Legal Position of officers and sailors. - By the law of Bangladesh a man who joins the
Navy, whether as an officer or as a sailor, does not cease to be a citizen. With a few exceptions,
his position under the ordinary law of the land remains unaffected. If he commits an offence
against the criminal law, he can be tried an4 punished for it as if be were a civilian. He can also
be tried by court-martial for committing a civil offence under N.O. section 78; Similarly, in
respect of civil rights, duties and liabilities; the ordinary law in general applies to him, although a
few privileges are granted to him, and a few restrictions imposed upon him, for the purpose of
enabling him the better to fulfill his naval engagement.

3. Nature of Naval Law. - Whilst, however, remaining subject (with the above
qualifications) to the ordinary law of Bangladesh, he has become subject also to an entirely
distinct code known as "naval law", which governs the member of the Navy and regulates their
conduct at all times and in all places, in peace and in war. Naval law is contained in the Navy
Ordinance, 1961 and certain other enactments applied to the Navy, supplemented by the Navy
Rules, by the Navy Regulations and by the Navy Instructions and Fleet Orders. The object of this
naval legal code is two fold :-

(a) to provide for the maintenance of discipline among the seamen and other persons
forming part of or following, the forces (acts and omissions which in civil life may be
mere breaches of contract, e.g., desertion or disobedience of orders, must, if committed
by seamen, even in time of peace, be made punishable offences, whilst in war every act
or omission which is likely to impair a man's fighting efficiency must be prevented) :
and

(b) to provide for administrative matters, such as terms of service, retirement, enrolment
al).d discharge.
The term "naval law" may, therefore, be used properly as including provisions of both the
above classes, but in practice it is more often used with reference to the disciplinary provisions
alone.

4. Arrangement of the Manual. - The Manual is divided into the following five Parts :-

Part I of Manual consists of nine chapters. After the present chapter which contains the
scheme of the Manual, Chapter 2 gives a general outline of the Navy Ordinance, 1961.

Chapter 3 deals with arrest, delays, investigation of offences, summaries of evidence, charge-
sheets and charges and summary punishments of officers and sailors.

Chapter 4 explains the difference between general, district and summary general court-
martial. It also deals with confirmation and revision and the remedies open to a person against the
orders, findings and sentences passed by a court-martial.

Chapter 5 summarises the law of evidence applicable to court-

martial trials.

Chapter 6 deals with offences which are punishable by the ordinary law of the country
(called "civil" offences as opposed to "service" offences) but which are also made offences
against naval law by section 78 of the Ordinance.

Chapter 7 provides a Memoranda for the guidance of officers

concerned with court-martial.

Chapter 8 summarises various service privileges conferred by
law upon persons subject to the Ordinance.
Chapter 9 deals with the duties in aid of civil power and "martial law".
Part II gives the text of the Navy Ordinance 1961 (referred to
as "the ordinance") and Part III-the Navy Rules, 1961 (referred to as “the Rules"). For the
purpose of detailed explanation, notes have been added to various sections of the Ordinance, and
the rules, Sections 29 to 79 deal with offences which are made punishable under the Ordinance,
Specimen charges under each of these sections have been included in the notes to facilitate the
work of those who may be called upon to draft charges under the Ordinance. The appendices at
the end give various Forms and Warrants used in connection with court-martial and other
disciplinary matters.
Part IV of the Manual gives the text of V.3rious statutes which have frequently to be referred
to, but. which are not easily available to naval officers. It has also been considered desirable to
include in this part the previsions of the (British) Visiting Forces Act, 1952 and certain extracts
from the Visiting Forces (application of Law) Order,
1954, as acquaintance with some of the exemptions, immunities and privileges granted by the
Government to the members of a visiting
force" is likely to be of assistance to the members of the Bangladesh
armed forces visiting the United Kingdom. [The Armed Forces (Commissioned Officers) Oaths
Warrant, 1983 has been included in
this part of the Manual. ]
Part V of the Manual contains various notifications issued by the Government as required by
the provisions of the Ordinance as well as orders of the CNS.

CHAPTER II

OUTLINE OF THE NAVY ORDINANCE, 1961

(i) Object and reasons of the Ordinance

1. After creation of, Pakistan on the 14th August, 1947, the then Pakistan Navy was governed
up-to the 28th February, 1962 by the Pakistan Navy (Discipline) Act, 1934 (XXXIV of 1934),
which with certain exception of certain modifications and adaption was a vertiation copy of its
British Prototype of 1866 and was found to be unsuited to the requirements of the then Pakistan
Navy, it was, therefore, considered necessary and convenient to draw up an entirely new and
comprehensive enactment for the government and discipline of the then Pakistan Navy.
 2, The Pakistan Navy ordinance, 1961 was accordingly made and promulgated as Ordinance
No.XXXV of 1961 in the then Gazette of Pakistan (Extra Ordinary), dated 8th September 1961
The Pakistan Navy Rules, 1961 were- issued on the 28th December,1961. Both the Ordinance
and Rules were made applicable to the Navy with effect from the 1st day of March, 1962. After
emergence of Bangladesh as Sovereign and independent state in the territory previously
comprised of East Pakistan, these were applied to the Bangladesh Navy as 'existing Law' and
have been 'adapted to Bangladesh with suitable textual amendments here and there as required.
The salient feature of the present code of Naval law are as follows :

(i) it generally follows the pattern of the Army Act, 1952 and the Air Force Act, 1953 and
also takes into consideration the latest enactments governing the other Navies;
(ii) the anomaly of naval trials being covered by the English

Law of Evidence has been removed;

(iii) detailed and clear provisions, concerning court-martial I have been given. A separate
chapter, concerning pardon and remissions is included. Summary disposal of contempt of
court-martial is provided for;
(iv) separate chapters on miscellaneous matters, like Service conditions, privileges, and
disposal of property, have been included to make the Ordinance comprehensive;
(v) list of definitions of the terms, used in the Ordinance, has been expanded in order to
eliminate doubts; and sections and chapters have been re-arranged in a logical manner.

(ii) Application of the Ordinance

3. Chapter I describes the persons who are subject to the Ordinance and provides definitions
of terms used in the Ordinance.

4. Section 2 gives various categories of persons who are subject to the Ordinance. These
persons remain so subject "wherever they may be". and are liable to serve in the navy until their
services have been "duly terminated by the competent authority in accordance with this
Ordinance and the rules and regulations made there-under", (section 16).

Sub-section 2 of this section describes persons who are "not otherwise subject to this
Ordinance", but who become so subject "to such extent and under such conditions as the
Government may direct". These include persons subject to military or air force Jaw when
seconded for service with the Navy, or when embarked for passage on board any of the naval
ships. Clauses (b), (c) and (d) give the circumstances in which civilians become subject to the
Ordinance and thereby liable to be tried and punished by naval tribunals.
5. Section 3 makes naval personnel subject to the military or air force law when seconded for
service with Army or the Air Force, as the case may be, "to such extent and under such conditions
as the Government may direct".

(iii) Definitions

6. Section 4 gives the definitions of various terms employed in the Ordinance. All these
definitions must be understood as being subject to the reservations in the opening clause of that
section, i.e., these definitions will apply "unless the context otherwise requires."

An instance of this may be found in section 121 of the Ordinance. "Officer" in this section cannot
be used in the restricted sense indicated in definition (xxvii), as such a meaning would' be
repugnant to the context, and must, therefore, be taken in its wider meaning of "officials".

7. It will be noticed that in some cases terms are defined in section 4 as "meaning" such and
such, and in others as "including"

some other persons or things. In the former case the term defined is used as a synonym for a
longer or more cumbrous expression, but the legal effect of the enactment would not be altered if
the longer expressions were used throughout instead of the shorter. The effect of those
definitions, or parts of definitions, which declare that a term "includes" something else is
somewhat different. Here the result is that wherever the law, as it stands, applies to the class of
persons or things indicated by the first term, it will also apply to the class or classes who are
"included", though the natural meaning of the English language might not indicate that it did
apply to the latter. For example, see definitions of the terms "enemy" and "naval reward" in
clauses (x) and (xxi) respectively.

1
See Notification in part V or the Manual.

8. Attention is invited to clause (xxxviii) 6t section 4, which states that all words and
expressions as are used in the Ordinance and have not been defined in section 4 but are defined in
the Penal Code, shall be deemed to have the meanings respectively assigned to them by that
Code. For definition of such words and expressions see Chapter II of the Penal Code.

9. Chapter II of the Ordinance makes special provisions for the application of the Navy
Ordinance in certain cases.
10. Section 5 enables the provisions of the Ordinance to be applied to any other force that the
Government may raise and maintain in Bangladesh, but which does not form part of the regular
navy. A force to which the Ordinance is thus applied does not thereby become part of the regular
navy, nor subject to its tribunals. It merely adopts, as its code, a similar code to the one which
governs the Bangladesh Navy.
 11. Section 6 of the Ordinance enables the Government to direct by notification that persons
subject to the Ordinance under clause (c) of sub-section (2) of section 2 shall be so subject as
officers, Master Chief Petty Officers; Senior Chief Petty Officers; Chief Petty Officers or Petty
Officers. The effect of such a notification is that those who rank as Officers, Master Chief Petty
Officers, Senior Chief Petty Officers, Chief Petty Officers and Petty Officers must, in their
relation to naval law, be treated in the same way as those who hold corresponding ranks in the
Bangladesh Navy, for instance, a civil official who ranks as an officer of the status of a Lieut.
Commander or above can be tried by no naval tribunal inferior to a general or a summary general
court-martial. The status conferred is a personal one and does not give any command over others.

12. Sub-section (3) describes the officer, who may exercise the power-of "commanding
officer" in respect of persons who become subject to the Ordinance under clause (c) of sub-
section (2) of section 2.

13. Section 7 provides for the discipline and administration of naval personnel, who might be
serving, whether within or without Bangladesh, under an officer who is not subject to this
Ordinance. The section empowers the Government to prescribe the officer who, in respect of such
personnel, ma,}' exercise the powers of a commanding officer.

14. Section 8 of the Ordinance is designed to prevent any legal

difficulties arising from the usage of the service relating to the delegation of authority by one
officer to another. For instance, a report which is directed by this Ordinance to be made to an
officer having power to convene or confirm court-martial may be addressed to the staff officer or
other person to whom such reports are usually addressed. Similarly, this section would allow
orders of a flag or other Officer to be signed by the staff officer in so far as they are authorized

by the Fleet Orders or the customs of the service.

15. It must, however, be remembered that the section is not intended to override the well-
known principle of law: "delegatus non potest delegare". An officer to whom a particular power
has been delegated by a higher authority cannot in his turn re-delegate it to another. person., The
confirmation of court-martial, and warrants or other documents relating to imprisonment or
detention or the infliction of any other punishment must be signed by the officer himself. So, too,
must an order convening a court-martial.

16. Section 9 of the Ordinance empowers the Government to declare, by notification, that any
person or class of persons subject to the Ordinance shall, with reference to any area in which they
may be serving or with reference to any provision of the Ordinance or of any other law for the
time being in force, be deemed to be on active service within the meaning of this Ordinance. Such
a declaration may be made notwithstanding the fact that the circumstances mentioned in the
definition of the term '.active service" in clause (i) of' section 4 are not applicable. On such a
declaration being made, civilians who are employed by, or are in service or, or are followers of,
or accompany such persons who are so declared to be on active service, shall also become subject
to naval law under section 2(2)(c) of the Ordinance.

17. Chapter III of the Ordinance deals with employment in the

Bangladesh Navy.

(iv) Appointment, Commission and Enrolment

18. Section 10 lays down a restriction that no person who is not a citizen of Bangladesh shall,
except with the consent of the Government signified in writing, be eligible for appointment or
enrolment in the Bangladesh Navy.

19. Section I1 lays down that officers (other than subordinate officers) shall be appointed by
Commission by the President; whereas subordinate officers shall be appointed in such manner
and spall hold such rank as may be specified in the regulations.

(v) Enrolment and Attestation

20. Sections 12 to 14.-Everyone who is permanently subject to Naval Law as a sailor is
subject to that law by virtue of his "enrolment". This Process and the subsequent attestation of
enrolled persons are described in sections 12 to 14 of the Ordinance and in rules 6 to 8.

21. The principle underlying these provisions is that no person should be permanently
subjected to an exceptional and severe code, like that contained in the Navy Ordinance, without a
definite act on

his part, such act being susceptible of easy proof. "Enrolment" is, therefore, made a definite act
recorded in a formal document, the enrolment paper, which, by section 119 of the Ordinance, is
itself made legal evidence of the fact stated in it, and which shows clearly all the conditions of the
bergain which the enrolled person has made with the State.

22. The term "attestation" is applied to the administration to the enrolled person of the oath or
affirmation of all allegiance and fidelity. It forms no part of the process of enrolment, but this
oath or affirm1tion must not be delayed for more than three months after it has become due. The
ceremony takes place when the candidate has completed the prescribed period of probation.
 23. As to the form of oath or affirmation to be taken on attestation, see Fir-5t. Appendix to the
Rules in part III of this Manual while the prescribed form of enrolment will be found in the
Eighth Appendix to the Rules.

(VI)Conditions of Service

24. Chapter IV--Sections 15 and 16.-Every officer and sailor holds office during the Pleasure
of the President, and is liable to serve in the Navy until his services have been duly terminated in
accordance with this Ordinance and the rules and regulations made there-under.

25. Section 17 empowers the Government to terminate the services of an officer; while the
services of a subordinate officer or a sailor may be terminated by the Government, the Chief of
Naval Staff, or any "prescribed" officer.

26. Section 18.-Under section 18 a sailor is entitled to obtain his release from the service at
the expiration of the term of his engagement, unless such expiration occurs :-

When war is imminent, or existing, or

(b) When the strength of the branch of service to which he belongs is 5 per cent below its
strength.

In either of these events it rests with the Chief of Naval Staff to decide for what further period the
sailor may be required to continue to serve. A sailor would, of course, be liable to continue to
serve if he is re-engaged in accordance with the regulations;

27. Section 19 deals with the discharge and dismissal of sailors who are serving out of
Bangladesh. Every sailor who is dismissed, discharged, or released from the service must be
furnished, by the Drafting Authority, with a "Termination of Service Certificate", as required by
section 20, read with rule 21. No such certificate is required in the case of an officer.

28. Section 21 of the Ordinance empowers the Government to make rules specifying the
manner and the extent to which certain fundamental rights of persons subject to naval law may be
restricted. The rights which are thus affected relate to an individual's freedom to form
associations or 1lJ1ions, freedom to attend or address any assembly, and freedom to communicate
with the press or to publish any book etc. Such restrictions are imposed in the interest of the
security of Bangladesh and in the interest of public order and of the discipline in the service.
These have been specified in rules 38 to 41.
 (vii) Service Privileges

29. Chapter V.- Persons subject to the Navy Ordinance enjoy a number of privileges in their
relations to civil courts in Bangladesh and the law administered by these courts. Some of these
privileges are conferred upon these persons by the provisions contained in Chapter V of the Act
Section 28 of the Ordinance, however, stales that the rights and privileges specified in the
preceding sections of this Chapter shall be in addition to any other conferred on members of the
armed forces generally by any other law for the lime being in force.

30. It has, therefore, been considered desirable to give in detail the most important of these
rights and privileges in a separate chapter in order to save the reader having to search through the
various statutes bearing on the subject. (See Chapter VIII of this part.)

(viii) Offences

31. Chapter VI of the Navy Ordinance classifies under various

heads and defines the naval offences and civil offences.

32. Naval offences-Sections 29-77. - For the sake of convenience offences of a similar
character are grouped together and the groups have, as regards naval offences, been arranged in
such an order as to emphasise their relative service importance. It must be remembered that
Chapter IV of the Penal Code (i.e. "General Exceptions") applies to offences under special laws,
such as the Navy Ordinance. The definitions of all these offences must, therefore, be read as
subject to the above "general exceptions".

33. Civil offences-Sections 78-79.-Section 78 of the Ordinance lays down that, subject to the
provisions of section 79, every person subject to this Ordinance who at any place in or beyond
Bangladesh commits any civil offence shall be deemed to be guilty of an offence against this
Ordinance, and if charged therewith under the section, shall be liable to be tried by a naval
tribunal. Sub-section (2) of section 78 states that a person may be charged with an offence under
this section notwithstanding that he could on the same facts be charged with an offence under any
other section of this Ordinance. (For civil offences see Chapter VI of this part.)

(ix) Punishments
 34. Chapter VII-Section 80.-Section 80 of the Ordinance provides a scale of punishments
which may be awarded to persons convicted of offences under this Ordinance." For each offence,
with
the exception of civil offences under section 78 (1)(a), for which an obligatory punishment is
provided (e.g., death or transportation for life for murder), the Ordinance provides, by sub-section
(10) of section 81, that the court subject of course, to the limits imposed by the Ordinance on its
powers e.g., the powers of a district court-martial under section 97(2), may award a specified
(maximum) punishment "or in lieu thereof, anyone or more of the punishments, inferior in degree
to the specified punishment, according to the scale of punishments laid down in sub-section (I) of
the last preceding section". If, for example, the maximum punishment assigned to the offence is
long. imprisonment, either short imprisonment or any other punishment lower in scale and
appropriate to the rank "of the offender can be awarded in its place.
35. A maximum punishment is only intended to be imposed when the offence committed is the
worst of its' class, or is committed by" a habitual offender, or is committed in circumstances
which require an example to be made. An important distinction is made by the Ordinance in that
certain offences are punishable more" severely when committed in time of war or on active
service than at other.

times. Instances of this distinction will be found in sections 29,30,31,32,33,36,37,46 and 49(2)
etc. A person, for example found asleep on his watch, being in the presence or vicinity of the
enemy, would, if the character and circumstances of the offence were sufficiently grave, be liable
to suffer rigorous imprisonment for 14 years, whereas if he commits the same offence not being
in the presence or vicinity of the enemy, he could at the most be sentenced to short imprisonment,
namely two years (section 33).

36. Sub-section (2) of section 80 lays down the punishment which are applicable exclusively
to officers and those which are applicable exclusively to sailors.

37. Section 81 of the Ordinance gives the consequential penalties involved in a sentence
awarded by a naval tribunal, for example, a sentence of imprisonment, in every case, would
involve stoppage of pay during the term of imprisonment. In the case of an officer such a
sentence must involve dismissal from the service; whereas in the case of sailor it would involve
disranking and deprivation of good conduct badges. It may or may not be accompanied by a
sentence of dismissal from the service.

38. It must be noted that the punishments enumerated in section 80 are awarded as being
"subject to" the provisions of section 81 and to other provisions of the Ordinance, e.g., of section
78(1)(a), referred to in the last paragraph.

(x) Penal Deductions

39. Chapter VIII.-The pay and allowances of every person subject to naval law are protected
under section 22 of the Ordinance. A person belonging to the Navy, is therefore, entitled to
receive his pay and allowances without any deductions other than such deductions as are
"authorised by or under this or any other enactment, or prescribed by the Government".
40. Section 82.-So far as this Ordinance is concerned, section 82 lays down the circumstances
in which penal deductions may be made from the pay and allowances of officers and sailors. A
"penal" deduction is, in principle, a deduction made as a penalty for an 9ffence of which the
accused has been convicted, and constitutes part or whole of his punishment. The term has.
however, acquired a specialized meaning, and every deduction which is authorised in section 82
must be understood to be "penal" irrespective of the common use of that word.

41. Section 85 allows the penal deductions, to be enforced either from pay and allowances or
from any public money due to a person other than a pension; and section 87 provides for the
remission of such deducations by the prescribed authority, for which see rule 283.
42. Other deductions, which are not "penal", but which may be made from the pay and
allowance of a person, are those prescribed by the Government under section 22 of the
Ordinance. These deductions are intended to meet any public or service claim that may be
outstanding against a person, or any service debt that may be due from him. They may also be
intended to meet compulsory contributions to any Provident Fund or any Benevolent or other
Fund which may be approved by the Government (see rule 280).

(xi) Arrest and Proceedings before Trial

43. Chapter IX of the Ordinance deals with the arrest of offenders and makes provisions for
bringing them to justice without undue delay.
44. Section 89 makes it the duty of every person subject to this Ordinance who knows or has
reasonable grounds for suspecting that another person subject thereto is committing or has
committed an
offence under this Ordinance, to take all reasonable steps within his,
power to cause that person to be brought to justice. It goes on in sub-sections (2) and (3) to
describe the persons who shall have the power to arrest such a person, and the manner in which
this power may be exercised.
45. Section 90 deals with the duties of commanding officers in relation to persons under their
command, who are placed in naval custody. The manner in which and the period for which such
a person may lawfully be detained in custody, pending trial, have been prescribed in rules 42 to
45.
46. In order to ensure that no person subject to the Ordinance, who is charged with an offence,
is unduly detained in custody subsection (3) of this section makes it incumbent upon a
commanding officer to submit a special report" to the Chief of Naval Staff every eight days,
giving reasons for the delay in bringing him to trial. For Form of "special report" under section
90(3); see the Second Appendix to the rules.
47. No accused person can, be kept in close arrest for more than 90 days without a court-
martial having I been assembled for his trial. At the expiration of this period an accused person
must be released from arrest; and he will not' be subject to re-arrest for the same offence, except
on a written order of an officer having power to convene a court-martial for his trial, or on a
written order signed by or on behalf of the Chief of Naval Staff, see rule 44(S).
48. Section 93 lays down that every person to whom a warrant for the arrest of a person
suspected of any offence under this Ordinance, is issued by competent naval authority, shall
take steps to execute it as if it, has been issued by a Magistrate of competent jurisdiction.
49. Section 94 deals with the appointment and the duties of a provost-marshal. For the
purposes of the Ordinance, a provost-marshal" includes a provost-marshl11 appointed under the
Army Act, 1952, or the Air Force Act, 1953, and any person legally exercising authority under
him or on his behalf.
 (xii) Authorities having power to award Punishment

50. Chapter X of the Ordinance deals with naval tribunals and contains the principal
provisions which govern the convening, composition and dissolution of court-martial. It also
gives the extent, to which the powers of punishment may be exercised and the persons who may
be tried by different types of court-martial.

51. Section 108.-It may be noted that a person subject to this Ordinance, who has once been
acquitted or convicted of an offence on trial by either a naval tribunal or by a criminal court,
cannot be tried again for the same offence by any other tribunal or by a criminal court.
52. A naval tribunal has been given jurisdiction over person "not subject to service law" so
far as contempt of court is concerned by sub-section (2) of section 95. See also rule 223: (See
Chapter IV of this part.)

(xiii) Procedure of Court-Martial

53. Chapter XI of the Ordinance' and rules 124 to 242 lay down the procedure for trials by
court-martial. (See Chapter IV of this part.)

(xiv) Other provisions

54. Chapters XII to XIV of the Ordinance deal with matters subsequent to a trial' by court-
martial, namely: confirmation and revision of findings and sentences, their alteration and
amendment, execution of sentences, pardons, remissions and suspension (See chapter IV of this
part.)

55. Chapter XV of the Ordinance deals with the property of deceased persons, deserters and
lunatics; and Chapter XVI gives the Government power to make rules for the purpose of carrying
into effect the provisions of this Ordinance. It should be noted that all rules made under the
Ordinance are published in the official Gazzette and on such publication have effect "as if
enacted in this Ordinance" see sub-section (3) of section 177.
56. These chapters call for no special remarks in addition to those which will be found in the
notes appended to the various sections of the Ordinance.

CHAPTER III
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ARREST, DELAYS, INVESTIGATION OF CHARGES, SUMMA-RIES OF EVIDENCE,

CHARGE-SHEETS AND CHARGES AND SUMMARY PUNISHMENTS

(i) Arrest
1. Arrest of persons subject to Naval Law. – “Naval custody" means the arrest or confinement
of a person in the prescribed manner or in accordance with the usages and custom of the naval
service, and includes military or air force custody.1 Section 89(1) makes it the duty of every
person subject to this Ordinance who, knows or has reasonable grounds for suspecting that
another person subject thereto is committing or has committed an offence under this Ordinance,
to take all reasonable steps within his power to cause that person to be brought to justice.

2. Officer : when to be placed in arrest. - An officer may be placed under arrest without
previous investigation when circumstances so require; but a commanding officer on receiving a
complaint, or learning of circumstances tending to incriminate an officer, is not ordinarily to
place him under arrest unless he is satisfied that it is necessary to do so.

3. Who may arrest an officer.-The following persons may place an officer under arrest :

(a) an officer 2 of the navy of superior rank;

(b) when the officer to be arrested is engaged in a quarrel, affray or dis-

order, any officer2 subject to this

Ordinance;

(c) a provost-marshal4, or any officer or person legally exercising authority under or on

behalf of a provost-marshal; provided that the arrest is made "on the order of another
officer" . 5

4. The two kinds of naval custody. - Naval custody is of two kinds.6 It may be close arrest
or it may be open arrest. The words "arrest" or "custody" when used in the Ordinance and the
rules include open arrest. An officer may be placed under either close or open arrest according
to the circumstances of each case and at the discretion of the commanding officer.

5. Close arrest of an officer. - An officer under close arrest is not to leave his
quarters, except to take such exercise under supervision as the medical officer considers
necessary. An officer should normally be placed in charge of an "escort" consisting of an
officer of the same rank, but may, if circumstances require it, be placed for custody under
the charge of a guard, piquet, patrol, sentry or provost-marshal.

6. Open arrest or an officer. -An officer under open arrest may take exercise at
stated Periods within certain limits, which are usually the limits of ship or establishment;
he is normally, however, not to appear out of uniform, nor in the ward-room nor at any
place of amusement or public resort. He may be ordered by his commanding officer to
carry out, any naval duties as may be necessary in the course of his training, or such part
of his ordinary duties as his commanding officer, considers advisable. An officer placed
under arrest should always be informed in writing of the nature of the arrest and when
under arrest, the extent of restraint placed upon his personal 1iberty, and any change in
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the nature of the arrest should be notified, in writing to him. An Officer under open arrest
may be ordered to leave his ship or establishment for some special purpose, e.g., to report
to another ship or establishment, or to appear in a civil court.
,,

7. Report to superior authority. - When an officer is placed under arrest, the

commanding officer is to report the. matter without delay to his superior authority.
8. Release from arrest. - Once an accused person is placed under close arrest, the proper
authority to release him from arrest is his commanding officer or any superior naval authority.1

9. No right to claim trial by court-martial. - If any person conceives himself wronged by

being placed under arrest or otherwise, his remedy is to make a complaint under Section 23 of the
Ordinance in the manner prescribe rule 31 and 37.

10. Arrest of Master Chief Petty Officers, Senior Chief Petty Officers, Chief Petty Officers,
Petty Officers and Sailors. - A sailor may be arrested by any officer, MCPO, SCPO, CPO or PO
of the Navy superior m rank to himself, or by a leading sailor who is of superior rank or senior to
him in the same rank, or by any sailor exercising the authority as a member of the regulating
staff or as a member of the staff of the officer of the watch. Such a person may also be arrested
by a provost-marshal or any officer or person legally exercising authority under or on behalf of a
provost-marsha.

11. Master Chief Petty Officers, Senior Chief Petty Officers, Chief Petty Officers and
Petty Officers. - The rules which govern the custody of officers, and which are set out in paras 2,
5 and 6 above, apply also to MCPO's, SCPO’S, CPO's

and PO's.

12. Civilians serving in the Navy on active service. -Persons subject to the Navy Ordinance
under clause (c) of sub-section (2) of section 2, as officers, Master Chief Petty Officers, Senior
Chief Petty Officers, Chief Petty Officers, Petty Officers (see Chapter II, para 4) may, when
charged with an offence, be placed under arrest under the same conditions as persons holding
these ranks.

13. Sailors - when to be placed in arrest. - A sailor charged with a serious offence may be
placed under arrest forthwith, but if the offence alleged appears not to be serious, it may be
investigated and disposed of wil!1 Jut previous arrest. He is not to be placed under close arrest for
offences unaccompanied by drunkenness, violence or insubordination, unless confinement is
necessary to ensure his safe custody or for the maintenance of discipline. A sailor who disobeys
an order distinctly given or resists the authority of an officer, Master Chief Petty officer, Senior
Chief Petty Officers, Chief Petty Officer or Petty Officer is to be placed under arrest forthwith.

14. Close arrest of sailors. - A sailor under close arrest should normally be detained in a
cell. He will not be required to perform any duty other than such duties as may be necessary to
releive him from the charge of cash, equipment, stores, accounts or other matters for which he is
responsible. On active service, however, he may be ordered to bear arms, attend parades and
perform all his ordinary duties. He should be searched and deprived of knives and other
weapons. He is to take sufficient exercise, under supervision for the preservation of his health.
 Edited by Foxit Reader
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15. Open arrest of sailors.-A sailor under open arrest is not to leave his ship or shore
establishment until his case has been disposed 'of, but he is to attend parades. He may be ordered
by hi, commanding officer to carry out such duties as may be necessary in the course of his
training or such part of his ordinary duties as his commanding officer may consider advisable
that he should perform.

16. Release from arrest of persons awaiting trial.-When an, accused person is remanded for
further investigation, for approval of the punishment warrant or for trial by court-martial, the
commanding officer should consider whether he may be released from close arrest and placed in
open arrest, or released from either form of arrest without prejJ1dice to re-arrest. Pending the
disposal of such reference or application, he should be kept under close arrest only in exceptional
circumstances1; e.g., when:-

(a) …………the offence charged is one for which the maximum punishment is death; or,
……………. the punishment proposed in the warrant is of imprisonment, detention or cells;
(b) or,
……… his conduct is so violent that it would be unsafe to himself or to others not to place
(c) him in close arrest; or,
………he is deliberately trying to undermine discipline by acts of misconduct. Isolated
instances of insubordination or violence would not in themselves justify retention in close
(d) arrest; or,
(e) ………. he has been a deserter, or is known to have
habitually absented himself without leave and it is considered that he would again absent
himself unless kept in close arrest.

17. Irregularity in connection with arrest or confinement. - Offences relating to, and
offences by, persons in custody are set out in sections 60, 61 and, 62 of the Ordinance. Under
section 60(b) it is an offence for any person subject to naval law, having committed a person into
naval custody, to fail without reasonable cause to deliver:

(a) at the time of such committal, or

(b) as soon as practicable, and in any case within 48 hours. thereafter, to the officer or other
person into whose custody the person arrested is committed, an account in writing, signed by
himself, of the offence with which the person so committed is charged.,

The "account in writing" need not be in the form of a formal charge-sheet but should set out
in ordinary language details of the allegations made against the accused, e.g."Creating a
disturbance on the ship", not an act to the prejudice of good order and naval discipline”.

18. Arrest by civil power.-Under section 93 of the Ordinance a warrant for the arrest of a
person suspected of any offence under the Ordinance may be issued by the Chief of Naval Staff,
the commanding officer of the suspect (or by any of the authorities prescribed by

Rule 62). Every person to whom such a warrant is issued is bound to take steps to execute the
warrant, as if it had been issued by a Magistrate of competent jurisdiction, to arrest the offender
and; as soon as may be, to deliver him into naval custody.
 A person arrested on suspicion of being a deserter or absentee must be taken before a
Magistrate, who will take steps to deliver him into naval custody, if he is satisfied that there is
sufficient evidence to justify his being tried under the Ordinance: (Rule 63).

(ii) Delays
19. Duty of commanding officer in respect of persons in custody. Section 90 of the
Ordinance makes it 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 48 hours after
the committal of such person into custody is reported to him, without the charge being
investigated. He is to ensure that as soon as may be either the proceedings are taken for his trial or
he is released from arrest. It is also his duty in every case where a person has been detained in
custody beyond a -period of 8 days, to report the fact together with the reason thereof, to the
Chief of Naval Staff, and a similar report must be made every eight days until the person under
arrest is released from arrest or tried summarily or a court-martial for his trial is ordered to
assemble. For Form of a "special report" on the necessity for further delay, required by sub-
section (3) of section 90 see the Second Appendix to the Rules.

20. "Special report" under Section 90(3). - Procedure to be followed in such cases is given
in Rule 44, which requires that this special report is to be made by the commanding officer to the
convening authority, and a copy is to be sent to Naval Headquarters (Naval Law Branch). This
report must be submitted notwithstanding that the person in custody is in hospital or whatever the
cause of the delay. When submitting such a report the commanding officer must satisfy himself:

(i) that continued custody is necessary, and

(ii) of the reasons for delay in bringing the accused to trial.
It is an offence under section 60(1) of the Ordinance for a person subject to the Ordinance
unnecessarily to detain a person in custody without bringing him to trial, or to fail to bring his
case before the proper authority for investigation.

21. Close arrest not to exceed 90 days, without written authority. 90 consecutive days without
a court-martial being convened and assembled for his trial, unless the officer who would be
responsible for convening the court-martial or the Chief of Naval Staff directs in writing that he is
not to be released from close arrest: [Rule 44(5)]

(iii) Investigation of Charges

22. Duties of commanding officer.-As stated in para 17, it is provided by section 60(b) that
any person subject to the Ordinance who has committed another person into naval custody must
within 48 hours of the arrest deliver to the officer or other person into whose custody the person
arrested is committed, an account .in writing, signed by himself, of the offence with which the
person so committed is charged. It is then commanding officer's duty to investigate the case
without delay.

23. Manner of investigation as prescribed.-Section 92 of the Ordinance lays down that

subject to the provisions of the Ordinance the procedure before trial and the manner of
investigation shall be as prescribed. The procedure before trial and the manner of investigation of
offences have, accordingly, been prescribed in great detail in rules 46 to 58 and the provisions
contained therein should be carefully studied by every officer concerned with the investigation of
an offence, be he an officer of the watch, an officer of the day, the divisional officer, the
executive officer or the commanding officer of the accused.

24. Preliminary Investigations.-A sailor committing an offence on board a ship or

establishment is to be brought as a defaulter before the Officer of the Watch/Officer of the Day.
After hearing the evidence in support of the charge, if in the opinion of the . investigating
officer, no case is made out, he shall either dismiss the case or stand it over, if further
evidence is likely to become available. If there is a prima facie case, which the investigating
officer can deal with himself, he will ask the accused if he admits the charge. If he does not
so admit, the investigating officer .will proceed to try the case giving the accused opportunity to
make a statement and to call witness.

25. Collection of evidence.- If the investigating officer, however, considers it would be

beyond his powers to punish the accused, his duty is to collect evidence. He shall hl such case
consider whether or not it is desirable to record the statements of witnesses as a precaution
against any witness changing his statement. The Master-at-Arms (or the person performing his
duties) is to be present through out the investigation and to frame charges according to the
evidence. The charges, as well as other information regarding names of witnesses etc are to be
entered on Form S. 241 "Report of Offender". Legal exactitude in framing the charges is not
necessary during summary investigation and trial, so long as the charges are so worded that the
accused fully understands the offence for which he stands charged.
26. Caution as to expressing opinion.-During the investigation the officer conducting it
must be careful not to let fall, before he disposes of the case, any expression of opinion as to the
guilt of the accused, or one which might prejudice him at a subsequent trial. Conduct sheets of
the accused should be examined by the investigating officer after, and not before, he has satisfied
himself as to the guilt of the accused.

(iv) Summary Trial

A. The Executive Officer
27. Delegated powers or punishment. - The procedure to be followed at the
Summary Trial has, under the present Code, been brought on the lines of a trial by court-
martial. One of the "Naval Tribunals" empowered under section 95 of the Ordinance to
try and punish offenders is the "Commanding Officer, or such other officer or authority
exercising powers of summary trial and punishment as may be prescribed".
28. Subsequent investigation and trial. - The Officer of the Watch, Officer of the Day
after collecting the evidence and charging the accused on Form S. 241, is to bring him as a
defaulter for further investigation and trial before the First Lieutenant/Officer-in-Charge, Training
School, who may be next in the chain of disciplinary command and to w)tom powers of
punishment have been delegated by the Commanding Officer. If this investigating officer
considers that the accused is guilty of the offence charged, he will award him punishment, unless
he considers that it is beyond his competency to do so, in which case he will refer it to the
Executive Officer. This last investigating officer will thereupon present the case at the Executive
Officer's defaulters and act as the prosecutor.
29. Necessity of recording evidence. – It is not normally necessary to record the evidence
of witnessed unless the investigating officer desires to do so. The summary of evidence is to be
taken down by the Master-at-Arms in a narrative form expressed as direct speech in the first
person in the words of the witness as far as possible. If a slang or unusual expression is used, it
is to be so recorded together with any explanation given by the witness. Evidence which is
clearly irrelevant to the charge is not to be recorded.
30. Witnesses for the prosecution. On completion of the examination of a witness by the
prosecutor, he may be cross-examined by the accused or his Divisional Officer or his Friend. If
the accused declines to cross-examine any witness the fact should be recorded.
31. Witnesses to be examined individually. – Other witnesses should not be present when a
witness is giving evidence and each must give his own account of the transaction Expressions
such as “I concur with the evidence of the last witness,” or “I corroborate the evidence of so and
so” are not to be used.
32. Caution to the accused and recording of his statement. When the witnesses for the
prosecution have given their evidence, the accused is to be cautioned by the investigating officer
in accordance with Rule 49(1). If the accused makes a statement it shall be taken down in
writing in a narrative form in first person in the same manner as a summary of evidence is
recorded. Care, however, is to be taken" that the accused is on no account cross-examined or
asked questions suggesting or indicating that he is expected to make any further statement. He
may, however, be asked to clear up any ambiguity in a statement. The statement shall then be
read over to him and he shall be asked to sign it, but is not to be ordered to do so if he is
unwilling. However, whether the accused signs it or not, it shall be countersigned by the
investigating officer and it can then be proved and used at any further investigation or trial. If the
accused does not make a statement the fact that he has declined to do so should also be recorded.
33. Witnesses for the defence. - After the accused has made a statement or has declined to
do so, he should be asked if he wishes to call witnesses for the defence. Their summary of
evidence is to be recorded in the same manner as those of the prosecution witnesses.

34. Decision of the Executive Officer.-If at the conclusion of the Summary Trial, the
Executive Officer is satisfied as to the

guilt of the accused, he may dispose of the case by punishing him if it is within his competency to
do so, otherwise refer the case to the Commanding Officer by making the necessary entry in the
Form S. 241. The Master-at-Arms will thereupon either read out the punishment awarded or
inform the accused that he has been placed in the “Captain’s Report.”

B. Commanding Officer

35. Captain's Report.- The procedure to be followed at the Captain's Report is the
same as mentioned above except that the Executive Officer now takes over the duties of
the prosecutor. The accused continues to- be assisted by his Divisional Officer or such
other officer as detailed by the Commanding Officer in accordance with Rule 47.

36. Administration of oath to witnesses. - If the Commanding Officer considers that

the case may lead to a warrant punishment or a court-martial, the summary of evidence is
to be recorded in writing in the same manner as mentioned above except that before each
witness is examined he shall be administered an oath or affirmation.

37. Witnesses who cannot attend the summary of evidence.- Rule 50(8) provides
that if a person cannot be compelled to attend as a witness, .or if owing to the exigencies
of the service or on other grounds, including the expense and loss of time involved, the
attendance of any witness cannot, in the opinion of the commanding officer, to be
certified by him in writing, be readily procured, a written statement of his evidence,
signed by him and countersigned, in case of a person subject to service law by his
commanding officer and in case of a civilian by any magistrate, may be read to the
accused and included in the summary of evidence. The object of this provision is to avoid
unnecessary expense and delay. Statements made at a Board of Enquiry are not
admissible and should not be used under this provision: see rule 258 (18).

38. Calling of civilian witnesses.-A civilian witness can be summoned to attend the
summary trial and his summary of evidence can be recorded in the same manner as that
of a service witness: See rule 50(7) and section 116 of the Ordinance. For form of
summons see the Fourth Appendix to the rules.

39. "Caution" to the accused. - On completion of the prosecution case if the

commanding Officer considers that there is a prima facie case against the accused, he
shall caution the accused in terms of Rule 50(5). Although the witnesses have been
administered oath/affirmation, it must be remembered that the accused is not to be
administered any oath or affirmation before he makes a statement.

40. Effect of "Caution".- A statement made by the accused shall only be admissible in
evidence at any further proceedings or trial if the accused has been cautioned before he
speaks that he is not obliged to say anything unless he wishes to do so and that any statement he
may make may be given in evidence. Care shall be taken to avoid any suggestion that the accused
answers can only be used in evidence against him as this may discourage an innocent person
from making a statement which might help to clear him of the charge.

41. Decision of the Commanding Officer.-If the commanding Officer considers the
accused to be guilty of an offence, which is within his competency to punish without previous
approval of a superior naval authority, he is to dispose it of by awarding a suitable punishment,
which is to be announced to the accused by the Master-at-Arms. If the Commanding Officer,
however, considers that the accused deserves more punishment, the accused is to be told that his
case has been "remanded". The commanding Officer is then to apply to the proper naval authority
either for approval of the Punishment Warrant or for a trial by court-martial. Whilst doing so, he
is to forward the summary of evidence, including any statement read in accordance with rule
50(8) together with documents produced as exhibits. Non-documentary exhibits (e.g., tools,
motor-tyres, weapons etc.) are to be labelled with identifying tags and held in safe custody.

42. Care necessary in recording a summary.-Great care is necessary in recording a

summary of evidence. The discrepancies not infrequently observable between the statements
recorded at the summary trial and the evidence given before a court-martial may often be traced
rather to the hasty or careless preparation of the summary than to any prevarication or desire to
mislead the court on the part of the witnesses. Moreover, a carelessly prepared summary of
evidence may require references between the convening officer and the commanding officer of
the accused and be a cause of delay in bringing the accused to trial.

43. References of case to convening authority.-When a commanding officer submits a

case to the convening authority against an officer or sailor, with a view to his trial by court-
martial, he is to do so in the form set out in the Fourth Appendix to the rules, together with the
documents mentioned in para. 6 thereof.

(v) Summary Punishments

A. Sailors

44. Powers of officer in command of ship or establishment. Section 102 lays down
certain limits to the powers of an officer in command of a naval ship or establishment, in
respect of a summary trial.

These are:-

(a) He may summarily try and punish only a sailor, i.e., a person enrolled under the
Ordinance, of or below the rank of MCPO; and may award only such punish-
ments as may be prescribed. These punishments are prescribed by rules 68 and
69.
(b) He cannot try and offence under the Ordinance which is punishable with death,
e.g., offences under sections 29. 30, 31 or 31, when committed "with intent to
assist' the enemy", or an offence of mutiny under section 36(1), or the offence of
murder punishable under section 78 or 79 of the Ordinance.
(c) He cannot award a sentence of imprisonment or detention for any term
exceeding three months.

Rule 68 lays down the various summary punishments, which can be awarded by a
Commanding Officer and rules 79 to 104 give the provisions in detail in respect of these
punishments. A resume of the same is given in the following table:-

SUMMARY PUNISHMENT TABLE

 45. Powers of other, officers authorised to exercise the powers of a commanding officer.
Sub-section (4) of section 102 empowers die following officers to exercise, subject to rules
the powers which are conferred on the officers in Command of a ship or Naval establishment:-

(a) the officer in/command of a single tender or boat, which is absent from, the ship" or
establishment on detached service,-in respect of persons on board such tender or boat;
(b) the officer in immediate command of two or more tenders or boats which are, absent
on detached service, in company or acting together, - in respect of persons on board any of
such tenders or boats;
(c) the officer in immediate command of persons who are absent from their ship or
establishment on detached service either on shore or elsewhere,-in respect of such

persons; and

(d) the officer commanding any body of the regular Army or the Air Force to which sailors are
attached or with which they may be serving,-in respect of such sailors.
By virtue of sub-section (5), the powers of trial and punishment conferred on any officer by this
section may be delegated by that officer to any, other officer "to such extent and subject to such
conditions as, maybe prescribed". For delegated powers of punishment see rules 72 to 78. The
authority to award minor punishments must in every case be delegated in writing; and while
awarding any of the punishments so delegated, the officer must comply with the provisions
contained in rules 19 to 104, as applicable, to the punishment proposed to be awarded in each
case.
46. Officers to whom power of punishment may be delegated. Officers to whom such
powers of summary punishment may be delegated under section 102 (5) of the Ordinance, by an
officer commanding a ship or establishment which is an independent command, are ;
(i) The Executive Officer, if he is of the rank of Commander,--rule 73 (I). '

(ii) The Executive Officer, if he is a Lieut. Commander or a Lieutenant,-rule 73 (2).

(iii) Officer-in-Charge Training School, if he is of the rank of Lieut. Commander of
Lieutenant,- rule 74.

(iv) First Lieutenant, if he \ is of the rank of Lieut. Commander or Lieutenant,-rule 75.

(v) Officer of the Watch or the Day, rule 76.

(vi) Heads of department or divisional officers, rule 77.

(Vii) Commanding Officer of a tender in company with parent

ship,-rule 78 (I).

(viii) Executive Officer of such a tender, if he is of the rank of Lieut. Commander or

Lieutenant, rule 78 (2).
 47. Revision of Summary Punishments. - Summary punishments awarded under the
abovementioned rules by a commanding officer or by any officer to whom such powers have
been delegated may be revised by a proper superior naval authority under rule 118, and on such
revision:-

(i) if the punishment appears to such authority to be wholly illegal, or if the finding involved
in such award appears to him to involve substantial injustice to the, accused the award must
be cancelled and the entry in the records of the accused expunged :-
(ii) if the award appears to such authority to be in excess of the punishment authorised by law
for the offence, he may vary it so that it shall not be in excess to the punishment so
authorised, and the entry in the records of the accused must also be varied accordingly ;
(iii) if the punishment awarded appears to such authority to be too severe, having regard to all
the circumstances of the case, he may remit the who1e or part of the punishment awarded.
This power of remission, however, call only be exercised within two years of the
date of the award.

48. Record of, punishments. - As regards maintenance of "Daily record" of punishments

awarded summarily to sailors together with the detail of the offences committed, and the
forwarding of the “Punishment Returns" to higher authority, see rules 114 to 117.

49. Master Chief Petty Officers, Senior Chief Petty Officers, Chief Petty Officers and
Petty Officers right to elect trial by court-martial.- A Master Chief Petty Officer, Senior Chief
Petty Officer, Chief Petty Officer or a Petty Officer may elect to be tried by court-martial, when
in the opinion of the commanding officer, his offence is such as would justify his being
summarily punished by one or more of the following punishments:-

(a) imprisonment:
(b) dismissal from the service ;
(c) detention;
(d) disranking;
For the procedure to be followed in such an event, see rule 51. If, however, the commanding
officer decides to award him a punishment lower than disranking, the accused cannot elect to be
tried by a court-martial.

B. Officers

50. Summary punishment of Officers.-Section 103 of the Ordinance, read with rule 119,
empowers the Chief of Naval Staff, or an officer not below the rank of Captain to such extent as
he may have been empowered in this behalf by the Chief of Naval Staff, to award summarily, to
an officer of the rank of Lieutenant or below, who is charged with an offence under the
Ordinance, anyone or more of the following punishments :-
(a) forfeiture of seniority in rank, or (in the case of subordinate officers) forfeiture of time for
promotion, for a period not exceeding six months ;
(b) forfeiture of pay and allowances for a period not exceeding three months, or until any
proved loss or damage occasioned by the offence of which he is convicted, is
made good, whichever is less;
 (c) forfeiture of pay and allowances for a period not exceeding three months for an offence
under section 42, in so far as it consists of neglect to obey flying orders, or for any of the
offences mentioned in sections 49 to 52, i.e., navigation and flying offences;
(d) severe reprimand or reprimand.

51. Officers' right to elect trial by court-martial.-When an officer dealing summarily with
an accused officer is of the opinion that the offence proved is such as would justify any of the
punishments mentioned in sub-paras (a) or (b) of para 50 above, he must give the accused an
opportunity to elect trial by court-martial. If an accused officer is charged with any of the
offences mentioned in para 50(c)., or when the officer trying him summarily propose to award a
punishment of severe reprimand or reprimand, the accused officer cannot claim the right to be
tried by a court-martial.

52. Procedure for Summary disposal of charge.-As to the procedure to be followed when
dealing summarily with .an accused officer, see rule 120.
As to the Form prescribed for recording such proceedings, see Second Appendix to the rules.

53. Submission of report to superior authority.-Except in the case where summary

punishment to an officer is awarded by the Chief of Naval Staff himself, the proceedings of
summary disposal duly recorded in the form set out in die Second Appendix to the rules, together
with a copy of the charge-sheet and summary of evidence, must be forwarded by the officer
awarding the punishment to the superior naval authority ; see rule 121.

54. "Logging" of an officer.- The "logging" of an officer means the recording of the
Commanding Officer's displeasure in respect of such officer's conduct, when in the opinion of the
Commanding Officer, such recording is necessary for future reference. If the matter is sufficiently
serious, it may be brought to the notice of the Chief of Naval Staff through the Administrative
Authority: but whether so reported or not, "logging" does not constitute a "punishment" under the
Ordinance, and is therefore no bar to the officer's summary trial or his trial by a court-martial in
respect of such misconduct;

see rule 123.

(vi) Charge-sheets and Charges

55. Charge-sheet. - A charge-sheet is to be made out in the proper lega1 form and signed
by the commanding officer of the accused, before he is remanded for trial by court-martial; or for
summary disposal under rule 119 (in the case of an officer of the rank of lieutenant or below).

The charge-sheet should contain the whole issue, or a1I the issues, to be tried at one time,
and may contain one charge or several charges : (rule 124). It should consist of the following :

(a) the commencement,

 (b) the charge or charges, each being divided into two parts namely the statement of offence
and the particulars of the offence: (rule 126),

(c) the signature of the commanding officer will the place and date of his signature. A
space should be left at the bottom of the charge-sheet for the order for trial to be signed
by the convening officer, and for the place and date of his signature to be inserted.

56. Commencement of charge-sheet. - (a) A charge-sheet should commence with the

number, rank, name and ship or establishment of the accused and should show by the description
of the accused how he is subject to naval law.

The commencement should follow one of the forms of commencement set out in Part I of the
Fourth Appendix to the rules.

(b) The rank referred to above will be the accused's substantive, temporary or acting
(whichever is higher) rank, held by him on the date of the charge-sheet.

(c) Persons subject to naval law are those described in section 2 of the Ordinance.

57. Statement of offence.-(a) So far as offences under sections 29 to 77 of the Ordinance

are concerned, the wording of the statement of the offence should follow one of the forms set out
in Part IT of the Third Appendix to the rules. In the case of a charge under sections 78 or 79 of
the Ordinance (i.e., a civil offence), the statement should be in such words as sufficiently
described the offence, but not necessarily in technical words: rule 126 (3).

(b) Each charge must comprise an offence only, and in no case should an offence be
described in the alternative in the same charge. If it is wished to make two or more charges,
they should be separately made; and if alternative, should be so laid. If charges are laid in the
alternative, care should be taken to place the major or the graver charge first, wherever this is
possible.

58. Particulars of the offence.- (a) The particulars of the offence are the particulars of the
act, neglect or omission constituting the offence; rule 126(4). The particulars should comprise:

(i) Such circumst&J1ces respecting the alleged offence as will enable the accused to know
every act, neglect or omission which it is intended to prove against him.
(ii) Any additional facts which it is intended to prove as justifying the punishment of
stoppages, (e.g. in a
charge relating to negligent driving, the words "thereby causing damage to the said
vehicle amounting to
Tk ……….")
(b) In every case the particulars should give the place and the date, approximate date, or dates
between- which the offence is alleged to have been committed! The date should be exact when it
relates to a char2e of desertion under section 46(1) of the Ordinance, or to a charge of absence
without leave under section 47(a). Since pay is forfeited for every day of absence without leave
under-section 82(a), it is desirable to allege the commencement and termination of a desertion
on specific days and in nearly every case it is possible to do so. There is, however, no legal
objection to alleging desertion as commencing "on or about" a particular date, or "not later than"
 a particular date; similarly it may be alleged that a desertion terminated "not earlier than" a
particular date. This may be necessary in cases where all record have been destroyed.
(c) The particulars should detail every ingredient of the offence. In a charge under section 75,
where the statement of offence alleges "an act to the prejudice of good order and naval
discipline," the particulars should relate to a transaction which has some bearing on "order" and
"naval discipline", and which, if established, would be capable of being an offence under the
section.
59. Joint charges.-A number of accused (though preferably not more than six) may be charged
jointly in one charge for an offence committed by them jointly. Where so charged, anyone or
more of such accused may at the same time be charged on the same charge sheet with any other
offence alleged to have been committed by him or them individually or jointly, if the charges are
founded on the same facts, or form, or are part of a series of offences of the same or a similar
character: (rule 130).
 CHAPTER IV
COURT-MARTIAL

(i) Description of Court-Martial and how convened

1. Description of Court-martial - A person subject to naval law1 who is to be tried by

court-martial may be brought before a general court-martial or a district court-martial. In
certain circumstances, e.g., on active service, trial may be by summary general court-
martial.2

2. Distinction between a general and district court - martial- The differences between
a general and a district court-martial consist in their composition, the status of the persons
subject to their jurisdiction, and the extent of punishment they have power to award.

3. Order convening the court. - Every court-martial depends for its jurisdiction upon
the order which calls it into being, namely the convening order issued by a person
authorised under the Ordinance to convene it.

4. Convening of general court-martial. - A general court-martial may be convened by

the Chief or Naval Staff or by any prescribed officer who has received from the Chief of
Naval Staff a warrant authorising him to convene general court-martial.3 Since no officer
has so far been, "prescribed" for this purpose, a general court-martial can only be
convened by the Chief of Naval Staff.

5. Convening of district court-martial. - A district court-martial may be convened by

an officer authorised to convene a general court-martial or by any prescribed officer who
has received from the Chief of Naval Staff a warrant authorising him to convene
district court-martial. 4

6. Forms of Warrant. -The forms of court-martial warrants are set out in the Sixth
Appendix to the rules. They are of two kinds:
(a) The general court-martial warrant issued by the Chief of Naval Staff to an
"officer, not being under the rank of Captain, Commanding....................."
authorising him to convene and confirm the proceedings of general court-
martial, with reservations in case of certain specified sentences.

(b) The district court-martial warrant issued by the Chief of Naval Staff to an
"Officer, not being under the rank, of Lieutenant Commander,
Commanding authorizing him to convene and confirm the proceedings of
district court martial.

7. Powers conferred by warrant. - The power to convene and confirm a court-martial

may be exercised only "to such extent as may be specified in the warrant issued under the
hand of the Chief of Naval Staff". In other words, any such warrant may contain any
restrictions, reservations or conditions, and maybe wholly or partly revoked by a fresh
warrant. It is normally addressed to an officer by name and also gives authority to the
officer on whom the command may devolve temporarily during his absence.
 (ii) Jurisdiction

8. Jurisdiction of a general court-martial. - A general court-martial can try any person

subject to the Ordinance,and in special circumstances certain civilians. Except in the case
of civilians, it has jurisdiction to try any service offence under sections 29 to 77 of the
Ordinance and any civil offence under section 78 (subject to the provisions of section 79).

9. Jurisdiction of a district court-martial. - A district court-martial can try any person

subject to the Ordinance, who is of the rank of lieutenant or below or a sailor; and can
pass any sentence authorised by the Ordinance not exceeding :-
(a) in the case of an officer, forfeiture of seniority in rank or forfeiture of time for
promotion for a period of one year;
(b) in the case of a sailor, short imprisonment.

10. Trial of persons who have ceased to be subject to naval law. - A court-martial has
jurisdiction in certain cases to try and punish a person who, since the date when the
offence is alleged to have been committed by him, has ceased to be subject to naval law."
This is so in the case of desertion, of fraudulent enrolment or of any of the offences
relating to mutiny. In other cases a person who has ceased to be subject to naval law can
be brought to trial only if his trial is commenced within six months after he has ceased to
be so subject; the six months in question will not be, deemed to have expired if the trial
has commenced within that period.

11. No power to try persons already convicted or acquitted. - A person who has been
tried and acquitted or convicted of any offence by a naval tribunal or by a criminal court
cannot be tried again for the same offence by another tribunal or by a criminal court. This
prohibition does not apply where there has been valid trial resulting in acquittal or
conviction." Nor does it apply in the case of a court-martial where the finding and
sentence have not been confirmed.

A fresh trial, however should be ordered only in exceptional circumstances, that is to say,
when such a course is considered absolutely essential in the interests of discipline. Pardon
or condonation by competent naval authority, if held to be proved, will operate to prevent
a person from being tried by a court-martia1.

12. Time limit for trial. - An offence, (other than desertion. or fraudulent enrolment, or
any of the offences relating to mutiny) cannot be tried by court-martial if three years have
elapsed since the date of its commission. Any time, however, spent by the accused as a
prisoner of war, or in any enemy territory, or in evading arrest after the commission of the
offence, is to be disregarded. A sailor cannot be tried even for desertion (other than
desertion on active service) or for fraudulent enrolment, if he has served in any- of armed
forces in an exemplary manner for three years after the commission of the offence.

13. Place of trial. - An offence, wherever committed, may be tried and punished at any
place whatever.
 (iii) Constitution

14. Composition of court-martial. -The following provisions apply to all court-martial,

i.e., general, district and summary genera1:
(a) The president as well as other members, including spare members, are all
nominated by the convening authority.
(b) Every -member must be subject to the Ordnance and must have held
commission for not less than three years.
(c) All officers must be of or above the rank of lieutenant.
(d) No court shall consist of officers all of whom belong to the same ship or
establishment; they may however belong to any branch of the navy.

15. General court-martial. - (i) A general court-martial shall consist of not less than
five, and not more than nine officers.
(ii) The president must not be below the substantive rank of commander.
(iii) A court convened for the trial of an officer shall not include more than one
member. who is below the rank of such officer.
(iv) A judge advocate must be detailed to attend the trial.

16. District court-martial. - In addition to those mentioned in para 14 above the

following provisions apply to district court-martial :
(i) A district court-martial shall consist of not less than three, and not more than
seven officers.
(ii) The president must not be below the substantive rank of lieutenant commander.
(iii) A judge advocate may at the discretion of the convening authority, be detailed
to attend the trial.

17. Disqualifications of officers. - The following officers are dis-qualified from sitting
on a general or district court-martial.
(i) the convening officer;
(ii) the prosecutor;
(iii) a witness for the prosecution;
(iv) an officer who investigated the charges before trial and recorded the summary
of evidence;
(v) an officer who was a member of a board of inquiry respecting the matters on
which the
charges against the accused are founded ;
(vi) the commanding officer of the ship or establishment to which the accused is
attached or belongs at the time of the commission of the offence or at the
time of the trial;
(vii) an officer who was a member. of a previous court-martial which tried the
accused in respect of the same offence ;
(viii) an officer who has a personal interest in the case.
 18. Disqualification of judge advocate. - An officer who is disqualified for serving on a
court-martial is also disqualified for acting as judge advocate at that court-martial.

(iv) Duties of Convening Officer

19. Consideration of proposed charge and evidence. - Before deciding to convene a

court-martial the convening officer must satisfy himself that the charge submitted by the
commanding officer discloses an offence under the Ordinance and is properly framed in
accordance with the rules. He must also be satisfied that evidence sufficient to justify trial
is disclosed in the summary of evidence. He may direct the commanding officer to alter
the proposed charge in view of the evidence submitted; he may give directions that further
evidence be obtained; in a suitable case he may direct that the accused, if under arrest,
should be released from arrest pending the obtaining of further evidence. If he thinks a
trial by court-martial is not justified, he should either arrange for the case to, be dealt with
summarily or order the charge against the accused to be dismissed.

20. Decision to order trial by court-martial. - If the convening officer is .of opinion
that the case should be tried by court-martial, he is, subject to the terms of his warrant, to
convene either a general or a district court-martial. If the case is one for trial by a general
court-martial, and he holds no warrant to convene such a court, he is to refer the case to
the appropriate superior authority having power to convene general court-martial.

21. Type of court-martial to be convened. - In deciding whether the case should be

tried by general or district court-martial, the convening officer is to have regard to the
prevalence of the particular offence charged, the general state of discipline in the ship or
establishment, the character of the accused and the sentence which the court ought to be in
a position to award if the facts alleged should be found to be proved. It is to be borne in
mind that there are few offences committed by Master Chief Petty Officers, Senior Chief
Petty Officers, Chief Petty Officers, Petty Officers and sailors which cannot be dealt with
adequately by district court-martial. For very grave offences, or where a serious example
is required a general court-martial should be convened.

A case should not, as a rule, be sent for trial unless there is a reasonable probability that
the accused will be convicted. On the other hand, there may be cases where allegations of
disgraceful conduct have been made, and where a court-martial affords to the accused the
only means of vindicating his character.

22. Order for trial by court-martial. - The convening officer, having settled or
approved the charges on which the accused is to be fried, will personally endorse the
charge-sheet with an order that the accused is to be tried by general or district court-
martial, as the case may be. It is within the power of the convening officer to direct
charges to be inserted in different charge-sheets on each of which the accused is to be
separately tried, as far as, and including the finding; in that event he should indicate the
order in which the charge-sheets are to be tried. If there are separate charge-sheets the
convening officer may direct that in the event of a conviction upon anyone of them the
accused need not be tried upon the other.
 Each charge-sheet must be signed by the commanding officer and bear upon the face of it
the convening officer's directions for trial.

(v) Preparation of defence by accused

23. Information to be given to accused. - As soon as practicable after an accused has
been remanded for trial by court-martial and in any case not less than 48 hours before his
trial, he is to be given 'gratis' a copy of the charge-sheet, a copy of the summary of
evidence together with a copy of the additional summary, if any, and if the accused so
requires, a list of the ranks, names and ships or establishments of the officers who are to
form the court, and any spare members.

As soon as trial has been ordered, proper opportunity to prepare his defence is to be
afforded to the accused, who is to be permitted to have free communication with any
witnesses whom he may desire to can, and with any "friend", defending officer or legal
adviser whom he may wish to consult, if such persons are available. (Other matters in
connection with preparation of defence are set out in rules 128 and 129.)

24. Application by one accused charged jointly with another accused to be tried
separately. - An accused who is charged jointly with any other accused person, may
claim to be tried separately on the ground that the evidence of the other accused proposed
.to be tried jointly with him, would be material to his defence. Such a claim may be made
by an accused either by notice to the convening authority, or when arraigned before the
court, by notice to the court. The convening authority or the court, as the case may be, if
satisfied of the genuineness of the claim, and if the nature of the charge permits, shall
allow the claim and the accused shall be tried separately).

25. Appointment of defending officer. - In order to ensure that an accused person is

represented at his trial, it is the duty of the convening officer to ascertain from the accused
if he desires to have a defending officer assigned to represent him at the trial; and if the
accused so desires, the convening officer must use his best endeavours to ensure that a
suitable officer is detailed for this purpose.

26. Appearance of counsel. - The accused may himself arrange for the services of
counsel to represent him at his trial. If he intends to be represented by counsel he must
give notice to that effect, so that convening officer may, if he considers it desirable, obtain
the services of counsel on behalf of the prosecutor. If the accused does not intend to be so
represented but counsel has been obtained on behalf of the prosecutor, the convening
officer must take steps to inform the accused to that effect not less than seven days before
the trial, so that the accused may himself obtain counsel for his defence, if he so desires.3
Similar notice should be given to the accused where the convening officer intends to
appoint or apply for the services of an officer with legal qualifications to act as prosecutor
at the trial.

The qualifications of counsel-i.e., Barrister-at-Law, Pleader etc. are set out in rules 196 to
201, as also their functions, rights and duties.
A defending officer has the same functions, rights and duties as counsel. The "friend" of
the accused can only act in an advisory capacity.

(vi) Assembly of Court

 27. Assembly of court and inquiry as to constitution. – (a) Upon a court-martial
assembling, the court before proceeding with the trial are to satisfy themselves in closed
court that it has been convened in accordance with the Ordinance and the rules. They
should consider in particular those matters referred to in rules 135 and 136.

(b) The court are to examine the convening order for the purpose of ascertaining whether
the members who have taken their seats, the judge advocate, if any, and any spare
members present are those mentioned in the order.

28. Inquiry as to legal minimum of members. - The court are next to ascertain that the
legal minimum of members required by section 99 of the Ordinance for a general or
district court-martial, as the case may be, has been detailed and is present. When any
member who is appointed is absent, a spare member, if there is one and if he is eligible
and qualified may take the place of absentee member. If, however, the legal minimum
number is not made up the court must adjourn.

29. Inquiry as to eligibility and qualifications of members. - The court are then to
satisfy themselves that the president and members are of the required rank and are not
disqualified under the Ordinance. The grounds of ineligibility and disqualification are set
out in paragraphs 14 to 18 above.

30. Judge Advocate. - At a general court-martial there must be a judge advocate, and
there may be one at a district court-martial. The convening officer appoints the judge
advocate, who must be an officer of the department of the Judge Advocate General, or if
no such officer is available, any fit person may be appointed, who in the opinion of the
Judge Advocate General possesses necessary qualifications to act in that capacity. An
officer who is disqualified for serving as a member on a court-martial is also disqualified
for acting as a judge advocate at that court-martial.

31. Powers of adjournment of court. - If the court are not satisfied on any of the above-
mentioned matters and are not empowered to put such matter right, they are to adjourn
and report to the convening officer.

32. Amenability of the accused to the jurisdiction of the court. - The court are to
satisfy themselves that the accused is subject to naval law or otherwise liable to trial by
court-martial and to the jurisdiction of the court. The jurisdiction of general and district
court-martial is dealt with in paragraphs 8 to 12. As to what persons are subject to naval
law or otherwise liable to trial by court-martial see sections 2, 95 (2) and 106 of the
Ordinance and notes thereto.

33. Validity of charges. - The court should be satisfied that each charge is on its face
correct in law and framed in accordance with the rules. For the statement and the
particulars of the offence see Chapter III of this part (paragraphs 41 and 42).

If not satisfied on the above matters, the court should adjourn and report to the convening
officer.
 (vii) Opening of the Court
34. Appearance of accused, prosecutor, counsel etc. - When the matters described in
the preceding paragraphs have been considered, the court is to be opened and the accused
brought before it. The accused should be escorted by another person at least of the same
rank as himself. The prosecutor, who must be a person subject to naval law, and the
defending officer or counselor "friend" of the accused will take their places in the court.

Witnesses may be present in court from the time when the accused is brought in until
after the members have been sworn, at this stage they are to withdraw, and are not, except
by leave of the court, to be in court when not being examined.

35. Open Court. - A court-martial is an open court like other courts of justice, but it has
inherent powers to sit "in camera" if such course as necessary in the interests of justice.
Further, the public may be excluded from a1l or any part of the proceedings at the
discretion of the court. The court may be closed at any time to enable the members to
deliberate in private.

36. Objections by accused to members. -The order convening the court and the names
of officers appointed to try the accused are to be read to the accused, and the accused is to
be given the opportunity to object to any of these officers. When a court is convened to
try more than one accused, either separately or jointly, each accused must be given the
right to object and be asked separately if he has any objection. Rule 138 contains
provisions as to the way these objection are to be inquired into and disposed of. If upon a
successful objection to any of the members, no spare member who is eligible and
qualified, is available to fill the vacancy, the court should normally adjourn, but may
proceed with the trial in certain circumstances, provided that here is a legal minimum of
members present. If, however, an objection is successfully made in respect of the
president, the court must adjourn until a new president is appointed by the convening
authority.

When upon a successful objection to the president or a member, an adjournment is

necessary, the convening officer can, if he pleases convene a new court, as the trial of
accused is not considered to begin until the court are sworn.

37. Swearing .of court, judge-advocate, etc. As soon as the court is finally constituted,
the president, members and judge advocate, if any, are to be sworn or affirmed, all
persons present in court standing. Officers attending under instruction are next to be
sworn or affirmed. Any interpreter or shorthand writer who may have been appointed is
next to be sworn or affirmed, after the accused has been given the opportunity to object to
such interpreter or shorthand writer.

The court may be sworn at one time to try several accused persons in succession
provided that such persons are present when the oath is taken and have been given an
opportunity of objecting to members. The form of oath or affirmation and the manner of
taking it by all persons required to be sworn or affirmed and the persons who are to
administer it are prescribed in the rules. Provision is also made whereby an oath or
affirmation may be taken in such form as the court ascertains to be binding on the person's
conscience.

38. Absence of members during trial. - A member of court who has been absent during
any part of the evidence ceases to be a member, and a new member, cannot be appointed
or added to a court-martial after the accused has been arraigned.

(viii) Arraignment of accused

39. Reading of charges. - As soon as the members, judge advocate, if any, and others
have been sworn, the accused will be arraigned. Arraignment consists in the reading of
each charge upon a charge-sheet separately to the accused and asking him whether he is
guilty or not guilty of it, I The judge advocate or, where there is no judge advocate, the
president conducts the arraignment.

If there are several charges on the charge-sheet, the accused may claim separate trial on
each or any charge on the ground that, unless so tried, he will be embarrassed in his
defence.

If there are alternative charges upon one charge-sheet, and the accused pleads guilty to
the first of such alternatives, the prosecutor may withdraw the other alternative charges
before the accused is arraigned upon them; otherwise the accused will be arraigned upon
all the charges whether they are alternative or not.

If there is more than one charge-sheet, the court must not arraign the accused upon any
subsequent charge sheet until their finding upon the first charge-sheet has been arrived at.

The accused, if charged jointly with any person whom he claims as a material witness for
his defence, may apply, if he has not already done so, to be tried separately from that
person, and the court may grant separate trial if the nature of the charge permits.

40. Objection to charge. - Before pleading to any charge, the accused may object to the
charge as not disclosing an offence under the Ordinance or as not being in accordance
with the rules. If the court disallow the objection, the trial will proceed; if they allow it,
they will or, if in doubt, they may, adjourn to consult the convening officer. who may
amend the charge and direct that the trial be proceeded with.

The court may always themselves amend a mistake in the charge sheet so far as it relates
to the name and description of the accused but not otherwise.

Apart from any objection by the accused, the court has power before they close for
consideration of their finding to report their opinion as to any charge, which appears to
them to be faulty, to the convening officer, who may either amend the charge or direct a
new trial to be commenced.
 41. Plea to the jurisdiction. - The accused, before pleading to any charge, may offer a
plea to the general jurisdiction of the court and give evidence in support of the plea. The
court will decide this question of jurisdiction in the same manner as any other question. If
the plea is overruled, the court will proceed with the trial; if it is allowed, the court must
record their decision and the reason therefore, report to the convening officer and adjourn;
if in doubt, the court may either refer to the convening officer or record a special decision
and proceed with the tria1.

A plea to the jurisdiction is a plea that the court have no right to try the accused because,
for example, He is not subject to naval law (as distinct from a plea which relates to a
particular charge). The grounds for such a plea are shown in paragraphs 8 to 12 above.

42. Recording of plea; refusal to plead; insanity. etc. - The objection and plea referred
to in the two preceding paragraphs having been disposed of (if raised), the accused's plea
to the charges upon which he has been arraigned will be recorded this will normally be
"guilty" or "not guilty".3 But the accused may refuse; to plead or plead unintelligibly, in
which case a plea of "not guilty" must be recorded, or it may be urged that the accused is
unfit to plead by reason of insanity, for which event provisions are made in section 123
and rule 217.

43. Plea in bar of trial. - Before pleading to a charge the accused may offer a plea in bar
under section 108 of the Ordinance on the ground that he has been previously tried for the
offence by a court-martial or a criminal court, and been convicted or acquitted, or that he
has been dealt with summarily for the offence, or that the offence has been pardoned or
condoned by competent authority (see para 11), or that the offence is time-barred under
section 105 of the Ordinance (see para 12). Upon the hearing of this plea, evidence may
be offered both by the accused and the prosecutor and addresses may be made. If the court
find the plea .not proven, they will proceed with the trial; if they find it proven, they will
notify this finding to the confirming authority and adjourn, though they may proceed with
any other charge not affected by the plea. In either case their finding on the plea requires
confirmation.

44. General plea to the charges. - After any plea or objection as described above has
been dealt with and the court proceed with the trial of the charge, the accused is to plead
either "guilty" or "not guilty" thereto; except that the accused may. in certain
circumstances, plead "guilty":-

(a) to an offence other than that charge, e,g., to absence with out leave [sec. 47(a)],
when charged with desertion under section 46(1);
or
(b) to the offence charged as having been committed in circumstances involving a
less degree of punishment, e.g., when charged under section 41 with using
threatening language to his superior officer being in the execution of his
office, he may plead guilty to the charge with exception of the words "being in
the execution of his office";
or
 (c) to the offence charged subject to exceptions or variations, e.g., if charged under
section 65 with losing service property (a number of articles) which were
on his charge, he may plead guilty in respect of some of those articles only.

In such an event, the court may accept such a special plea if the prosecutor signifies the
concurrence of the convening officer and the court are satisfied of the justice of taking
such a course. Any failure to obtain such concurrence of the convening officer as
aforesaid, however, does not invalidate the proceedings, if they are confirmed
notwithstanding such failure.

45. Plea of "Guilty". - If an accused pleads guilty to a charge, before the court decide to
accept the plea, the president or the judge advocate is to ascertain that the accused
understands the nature of the charge and the general effect of his plea and in particular the
difference in procedure when an accused pleads guilty and when an accused pleads not
guilty. It should be pointed out that on a plea of guilty prosecution witnesses will not be
called, but that the summary of evidence will be read. The accused should also be
informed that he is entitled to make a statement in mitigation or punishment and to call
witnesses of his character. If the accused in mitigation wishes to elicit circumstances of
provocation by cross-examining prosecution witnesses he should be advised to plead not
guilty to enable him to do this.

46. Plea of guilty where the accused is liable to death sentence :- A plea of guilty is
not to be accepted if the accused is liable, if convicted to be sentenced to death.

47. Order or trial where there are pleas of guilty and not guilty. - If an accused has
pleaded guilty to a charge but there are on the charge-sheet other charges to which the
same accused or another accused, has pleaded not guilty, the court is to proceed to try
such other charges and reach a finding thereon before proceeding further with the plea of
guilty.

48. Procedure on a plea of guilty. - When the court proceed with a plea of guilty the
summary of evidence is to be read. If the president has been provided with an expurgated
copy of the summary' of evidence, the prosecutor is not to read to the court those parts of
the summary of evidence, which have been expurgated or inform the court of the facts
contained in those parts: and he is not to hand the original summary of evidence to the
court until the trial is concluded. If there is no summary of evidence, or if it is inadequate
or incomplete, the court is to hear and record sufficient evidence to enable them to
determine the sentence, and for the confirming officer to know all the circumstances
connected with the 0ffence.

The accused or his defending officer or counsel may then adduce evidence of character
and in mitigation of punishment, and address the court in mitigation.
If from the statement of the accused, or from the summary of evidence, or otherwise, it
appears to the court that the accused did not understand the, effect of his plea of "guilty"
the court must enter a plea of "riot guilty" and proceed with the trial.

49. Duty of President. - It is the duty of the president to ensure that the trial is conducted
in accordance with the Ordinance and the rules, and in particular to see that the accused
does not suffer any disadvantage in consequence of his position as such, or of his
ignorance, or of his incapacity to examine or cross-examine witnesses or to make his own
statement clear and intelligible.

50. Change of Plea. - An accused who has pleaded "not guilty" may at any time before
the court close to consider their finding withdraw his plea of not guilty and substitute a
plea of "guilty". If the court are satisfied that they can accept the changed plea, after
complying with the provisions of rule 146 (2) they may then proceed as on a plea of
guilty.2 With the consent of the convening officer they may accept a plea of guilty to a
less offence in accordance with sections 112 or 113 of the ordinance, or a plea of guilty
subject to exceptions and variations; (see para 44 above).

(ix) Procedure on plea of not guilty

51. Plea of not guilty. - Before proceeding with a trial on a plea of not guilty, the court
must ask the accused whether he wishes to apply for an adjournment on the ground that he
has been prejudiced by non-compliance with any of the rules relating to procedure before
trial or has had insufficient opportunity to prepare his defence. The court may hear
evidence upon any such application and may adjourn if they think the interests of justice
so require.

52. Case for the prosecution. - The prosecutor may (and is to, if required by the court)
make an opening address explaining the charge and the nature and general effect of the
evidence which he proposes to cal1. The prosecutor is not a partisan but an officer of
justice whose duty it is to bring the whole of transaction before the court and not take any
unfair advantage of, or to withhold any evidence in favour of, the accused. He must act
with scrupulous candour, fairness and moderation towards the accused, the witnesses and
the court. Any departure from this rule of conduct should at once be checked by the court.

53. Witnesses for the prosecution. - The witnesses for the prosecution will then he
called. Each witness (other than a child too young to understand the nature of an oath) is
10 take the appropriate oath or make a solemn affirmation. His examination is to be
conducted by the prosecutor, who, except in preliminary matters, must be careful not to
ask leading questions, that is to say questions suggesting the answer required. After the
witness has given his evidence-in-chief, as the first examination of a witness is called, the
defence is entitled to cross-examine him, and in cross-examination leading questions and
suggestions may be put. After the cross-examination the prosecutor may re-examine his
witness, but this "re-examination" is to be limited to points raised in the cross-
examination and leading questions may not be put.

54. Examination of witnesses by the court. - The president, judge advocate and, with
permission of the president, any member of the court may put questions to a witness. If
this is done both the prosecution and the defence may put such questions to the witness
arising from the answers which he has given as seem proper to the court.

55. Calling additional witness for the prosecution. - If the prosecution intends to call a
witness whose evidence is not contained in the summary of evidence, notice of such
intention and particulars of the evidence should be given to the accused a reasonable time
before the witness is called. If no such notice and no such particulars have been given, the
court is to inform the accused that he is entitled to an adjournment, or to postpone his
cross-examination, after such evidence has been received.

56. Procedure where the prosecutor dispenses with a witness. - The prosecutor is not
bound to call all the witnesses for the prosecution whose evidence is contained in the
summary of evidence, nor an additional witness in respect of whom notice has been given
in accordance with the preceding paragraph. If the prosecutor does not intend to can any
of such witnesses, he should, nevertheless, call such of them as the accused may desire to
be call for the purpose of cross-examination and for this reason, so far as practicable, he is
to secure the attendance of all such witnesses.

57. Exclusion of witnesses from the court. - During a trial, a witness (other than the
prosecutor) is not, except by special leave of the court, to remain in court when not under
examination; if a discll5sion ari5es on any point during the course of his evidence he may
be directed by the court to withdraw.

58. Recording of the evidence. - As a witness gives his evidence it must be translated (if
not in English) and taken down in narrative form in a5 nearly as possible the words used;
occasionally it may be material or desirable to take down question and answer "verbatim".

The judge advocate or, if there is none, the president must record the evidence or cause it
to be recorded, and is responsible for its accuracy and for the proceedings "as a ""hole.

The form in which record is to be made is provided in the Fourth Appendix to the rules.

59. Reading back the evidence to the witness. - Before a witness withdraws, the whole
of his evidence as recorded must be read to him. to ensure its accuracy; he may then make
further explanations or corrections. The prosecutor or the accused may put questions to
the witness arising out of any such explanation or correction as seem proper to the Court.
Reading over the evidence may be dispensed with where a shorthand writer is employed.
A witness does not sign his evidence.
 60. Calling of witnesses by court and recall of witness. - At any time before the court
close to consider their finding, they may call or recall a witness if in their opinion such
course is in the interest of justice. If such a witness is called the prosecutor and defending
officer may put such questions to him as seem proper to the court. Similarly, the
prosecutor or the accused may recall a witness by leave of the court.

61. Submission of no case. - At the close of the case for the prosecution the accused may
make a submission to the court in respect of any charge that no 'prima facie" case to
answer has been made. The prosecutor may address the court thereon and the accused
may reply to the prosecutor's address. If the Court are satisfied that the prosecution has
not established a "prima facie" case on the charge as laid, and it is not open to them on the
evidence adduced to make a special finding under sections 112 or 113 of the Ordinance or
rule 155 (8), they are to uphold the submission and record a finding of not guilty in
respect of the charge to which it relates; otherwise the trial proceeds.

62. Rights of the accused. - After all the evidence for the prosecution has been given,
the accused is to be asked by the court if he wishes to make a statement or to call any
witnesses as to the facts of the case.1 If the accused makes any statement, he shall not be
sworn or affirmed and no question shall be put to him by the court or by any other person.

63. Procedure where witnesses to facts called by defence. - If the accused intends to
call a witness or witnesses as to the facts of the case; he may make a statement as
mentioned in the previous paragraph; or if he makes no such statement, his counselor
defending officer may make an opening address. Any such address should be limited to an
outline of the evidence to be called for the defence. The accused may then call his
witnesses including, if he so desires, any witnesses as to character. If the accused
produces witnesses as to character, the prosecutor may also produce evidence of former
convictions, either by court-martial or criminal court and any entries in the service
conduct sheet of the accused. After the evidence of all the witnesses has been taken, the
accused, his counselor defending officer, as the case may be, may make a closing address,
and the prosecutor may reply.

64. Procedure where DO witnesses (except as to character) called by defence. - If the

accused does not call any witnesses as to the facts of the case, he may make a statement,
as mentioned in paragraph 62 above, and call witnesses as to character. The prosecutor
may then produce any evidence of former convictions, etc., as mentioned in the last
paragraph. After all such evidence has been taken, the prosecutor may then make a final
address for the purpose of summing up the evidence for the prosecution; and the accused,
his counsel or defending officer, as the case may be, may then make a closing address in
reply.
 65. Addresses by prosecutor and defence. - In no case may the prosecutor, counselor
defending officer of the accused in the course of an address state as a fact any matter
which has not been proved, or which it is not intended to prove in evidence, nor may they
state what is their opinion as to any matter of fact which the court has to decide.

66. Latitude to accused in defence. - The accused must be allowed great latitude in
making his defence, and will not, within reasonable limits, be stopped by the court merely
for making irrelevant observations.

67. Recalling of witnesses. - At the request of the prosecutor or the accused, and by
leave of the court a witness may be recalled for the purpose of having further questions
put to him through the president or judge advocate, if any. The court may also allow the
prosecutor to call or recall a witness to rebut any material evidence on any unforeseen
matter which may have arisen, or as a reply to the witnesses, to character called for the
defence, to prove previous convictions against the accused. In all these cases the
additional evidence must be given before the closing address by or on behalf of the
accused. The court may, of their own motion. call or, recall any material witness if it is
necessary to do so in the interest of justice; such witness may be called or recalled at any
time before the finding of the court is arrived at.

68. Adjournment. - During the trial the court may adjourn from time to time, from
place to place, or to consult the convening authority. Similarly, if the accused becomes ill,
the court may adjourn.

69. View by court. - The court may adjourn to view any place or thing at any time before
they close to consider their finding. At a view the president, members of the court, judge
advocate, if any, prosecutor,
accused and any defending officer or counsel are to be present.

70. Absence of president, judge advocate, or member. - lf at any time after a court-
martial has been sworn and before the president has signed the finding and sentence if
any, tile president or the judge advocate dies or is otherwise unable to attend, the court
must be dissolved. The proceedings of a court-martial are valid, notwithstanding the
absence of one or more members, other than the president, so long as the minimum
number of members present throughout the proceedings is not reduced below the
minimum required by the Ordinance to constitute the court; but when any member is
absent the court must be adjourned and seek the permission of the convening authority to
proceed with the trial without such member. When, however, such permission is given,
the member who has been absent must not at any subsequent stage sit on that court.
Similarly, a new member cannot be appointed or added to a court-martial after the
accused has been arraigned.
71. Summing up by judge advocate. - After the closing addresses, if a judge advocate is
sitting, he is to sum up the evidence and advise the court on the law relating to the case in
open court.

(x) Deliberation on finding

72. Finding to be considered in closed court. - The finding is to be considered in closed
court. If a judge advocate is present he will, after he has made his summing up, retire from
the court. No one is to be present except the members and any officers under instruction.
If, when deliberating, the court require further advice from the judge advocate, the court
must be re-opened and the advice of the judge advocate asked and given in open court. To
enable the court to deliberate on the finding in closed court, the president will either order
the court to be closed or retire with the members and officers under instruction to a
convenient retiring room. The court must record a finding on every charge upon which the
accused was arraigned, including any alternative charge. They are to record :-
(a) a finding of guilty, or a special finding under sections 112 or 113 of the
Ordinance or under rule 155(8), or under section 123(1); or
(b) a finding of not guilty; or
(c) a finding of not guilty and honourably acquitted.

An honourable acquittal will be rare, as it can only arise when charges alleging
disgraceful conduct have been preferred and the court are satisfied that the accused's
conduct in relation to the charges has been above reproach.

13. Onus of proof. - At the outset of their deliberations the court must remember that it
is a principle of Jaw that the accused is presumed to be innocent unless he is proved to be
guilty and that the onus, or burden, of proof rests throughout upon the prosecution. Unless
therefore the court feel sure beyond reasonable doubt of the accused's guilt after
considering the evidence as a whole, he is to be acquitted.

74. Corroboration. - It is legally open to a court to convict an accused person upon the
evidence of one credible witness. But in some cases corroboration of such witness is
required by practice almost amounting to a rule of law; in others it is desirable that
corroboration should be looked for, though not actually required by law or practice; (see
Chapter V, particularly as regards evidence of an accomplice).

75. Extraneous consideration. -The court, in considering their decision, must not be
influenced by the consideration of any supposed intention of the convening officer in
sending the accused for trial by a particular kind of court-martial. In many cases the
convening officer will have decided no more than that a "prima facie" case against the
accused is shown upon the summary of evidence, and he will have formed no opinion as
to the guilt of the accused. An acquittal, therefore, is not in itself a reflection upon the
convening officer. Even if it were, it would afford no reason whatever for a court to
convict, unless the evidence established the charge.
 76. Special finding. - The court must consider whether the facts alleged in the particulars
of each charge have been proved in evidence, and, if proved, whether they disclose the
offence stated in the charge itself, or some other offence of which they may, under the
provisions of sections 112 or 113 of the Ordinance, find the accused guilty. Thus on a
charge of desertion, they may find the particulars of the period of absence proved, but not
the intention to remain permanently absent from duty or other alleged intent. In such
circumstances the court could make a special finding that the accused was not guilty of
desertion but was guilty of absence without leave.

77. Attempts. - An accused charged before a court-martial with any offence may be
found guilty of attempting to commit that offence. An accused charged with an attempt
may be convicted of it, even though it be proved that he committed the full offence.

78. Special finding as to the particulars of the charge. -Where the court find that the
facts proved in evidence differ materially from the facts alleged in the particulars, but are
nevertheless sufficient to constitute the offence charged, and that the difference is not, so
material as to have prejudiced the accused in his defence, they may make a special finding
setting out the variation" For example; if on a charge of absence without leave the court
find that the period of absence was shorter than that alleged in the charge. they may make
a special finding to that effect.

79. Insanity. - In rare cases a court may find that the accused did the acts, or made the
omissions, constituting the offence alleged, but was insane at the time; the court in such
circumstances are to find the accused guilty but insane.

80. Voting on the finding. - The opinion. of every member of the court as to the finding
must be given either by word of mouth, or, if the president so directs, by secret written
ballot, on each charge separately. The opinion of the members is to be taken in succession
beginning with member who is junior in rank. If the opinion is given by secret written
ballot, the ballot papers must be destroyed after the finding has been- recorded.' In the
case of an equality of votes the accused is to be acquitted. The president has no second or
casting vote on the finding. A majority of votes decides the issue and the finding of the
majority is to be recorded as the finding of the court.

The president must ensure that no officer under instruction gives any indication of his
views on finding lest he influences the decision of the court until after the court has
reached their finding. (For form of finding, see Fourth Appendix to rules.)

(xi) Proceeding on conviction

81. Evidence as to character and service. - lf he finding upon any charge is "guilty"
(whether or not the accused has pleaded guilty thereto), and the trial of all charges and
charge-sheets has been completed, the court, for the purpose of determining their
sentence, must, whenever, possible, take and record evidence as to the character, age,
service, etc, of the accused. This evidence must be given by a witness on oath or
affirmation, usually by the prosecutor, who will produce extracts from the service record
of the accused in accordance with the rules. (Forms of statement as to character and
particulars of service, both in the case of officers and sailors, are set out in the Fourth
Appendix to the rules).

The accused may cross-examine any witness who gives evidence of the above-mentioned
matters, and if he so requires, the service books or certified copies of material entries
therein, are to be produced. Oral evidence of bad character cannot be given for the
prosecution. The accused, however, may can evidence as to his good character at this
stage, as well as during the hearing of the case for the defence, and the prosecutor has the
right of cross-examination to test the veracity of such, evidence, even if he thereby brings
out evidence of the accused's bad character.

After all the evidence as to character has been given, the accused or his counselor
defending officer may address the court thereon and in mitigation of punishment.

(xii) Deliberation on sentence

82. Sentence to be considered in closed court. - The sentence is to be considered in

closed court. No one is to be present except the members, judge advocate, if any, and any
officers under instruction. The sentence should follow the prescribed forms set out in the
Fourth Appendix to the rules. The punishment awarded must be one of those allowed by
the Ordinance.3 In some cases a combination of punishments is permitted by the
Ordinance.

One sentence only must be awarded in respect of all the offences of which an accused
person has been found guilty, even if the trial has proceeded on different charge-sheets,
and where an accused has been found guilty upon several charges, a sentence which can
legally be awarded in respect of one of them will be valid notwithstanding that it could
not legally have been awarded in respect of the others.

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

punishment for an offence under section 78(I)(a) of the Ordinance, e.g., murder] an
absolute discretion as to its sentence. It may award the maximum punishment allowable
for the particular offence charged or such less punishment as is laid down in section 80 of
the ordinance which sets out a graduated scale or punishment which a court-martial may
award.

84. Maintenance of discipline the object. - A court-martial should remember that the
object of awarding a sentence is not only to inflict punishment but also the maintenance of
discipline.

The proper amount of punishment to be inflicted is the least amount by which discipline
can efficiently be maintained. Occasion any the exigencies of discipline apart from the
circumstances of a particular case may render a severe sentence necessary, but the
punishment awarded to any individual must not be more than is necessary in the interests
of the service and for the maintenance of discipline, without which a fighting service must
become an irresponsible mob and useless for the purpose for which it exists. It must be
the object of all concerned to aim at that high standard of discipline which springs from a
system administered with justice and impartiality, and to induce in all ranks a feeling of
confidence, that while no offence will be passed over, no offender will in any
circumstances suffer injustice.

85. Other considerations,- If the accused has elected to be tried by court-martial instead
of accepting the commanding officer's award, it is not incumbent upon the court to award
the same or the lesser punishment than the commanding officer has power to award.

A Master Chief Petty Officer, a Senior Chief Petty Officer, a Chief Petty Officer or a
Petty Officer should as a rule be punished more severely than a sailor concerned with him
in the commission of the same offence, and the instigator of an offence should normally
receive a more severe sentence than a person who was incited to commit it. Where several
offenders are found guilty of the same offence, it may often be proper to award different
amounts of punishment, and. in order that the respective degree of criminality of several
offenders charged in respect of the same transaction but tried separately may be more
accurately determined the court may proceed to finding in each case separately, and, after
hearing evidence of character and in mitigation, consider at one time the various sentences
appropriate for each accused.

86. Premeditation and provocation. - The court must pay special regard to the question
whether the offence of which the accused has been found guilty was committed with
premeditation or provocation. It is obvious that a theft committed after long preparation
deserves more severe punishment than a theft committed on the spur of the moment.
Similarly, a court would be justified in awarding a more lenient sentence to a sailor who
has been provoked into striking his superior officer than to a sailor who committed the
offence without provocation. As a general rule the improper use of words should not be
treated with the same severity as an offence involving physical acts.

87. Previous convictions. - Due regard should be paid to previous convictions. A habitual
offender deserves more severe punishment than an infrequent offender, and a first
offender should be treated as leniently as possible.

88. Prevalence of offences. - Offences must sometimes be considered in reference to

circumstances other than those connected with the individual offender. When there is a
general prevalence of offences or of offences of some particular kind, an example may be
necessary, and on that account severe punishment may properly be awarded in respect of
an offence which would otherwise receive a more lenient punishment. In such cases the
punishment must be regarded more from the point of view of the effect which it will
produce on the force to which the offender belongs than on the offender himself.
 89. Punishment to be just and proper. Finally, having due regard to the foregoing
considerations, the court must always award such punishment as they themselves consider
just and proper in the particular circumstances. They must not assume that the convening
officer takes a graver view of the facts than they themselves take.

90. Recommendation to mercy. In view of the discretion of the court in awarding

sentence,1 in the great majority of cases, a recommendation to mercy will be exceptional.
If such recommendation is made it must be entered on the record, together with the reason
for it.2 A recommendation is not subject to confirmation.

Any expression of opinion as to anything occurring before the court, and any m1tter
which the court may desire to report, must be stated in a separate document for the
information of the proper naval authority.

91. Voting on the sentence. - Every member of the court must give his opinion as to the
sentence to be awarded, even if he had voted for an acquittal upon the finding. The officer
junior in rank must first give his opinion. In the case of an equality of votes, the decision
must be in favour of the accused. The president has no second or casting vote upon the
sentence. An absolute majority of the opinions of the members must be secured, but
sentence of death may not be passed without the concurrence of at least two-thirds of the
members in the case of a general court-martial, and of all the members in the case of a
summary general court-martial.

92. Recording of sentence, signing etc., of proceedings. – When decided upon, the
sentence and recommendation, if any, are to be recorded on the proceedings, which are
then to be signed by the president and judge advocate, if any, and dated; but they shall not
be promulgated until they have been confirmed. The proceedings are to be forwarded as
directed in the convening order for confirmation of finding and sentence.2
For form of proceedings see Fourth Appendix to the rules,

93. Times for sittings. - A trial should be continued from day to day, the court sitting for
a reasonable time each day. The court is not to sit on Sunday or other closed holidays,
unless in the opinion of the court or of the convening officer the exigencies of the service
make such course necessary.

(xiii) Confirmation and Revision

94. Finding and sentence not valid until confirmed. - A finding (whether of guilty or
not guilty or a sentence of a court-martial are not valid until confirmed. Before
confirmation, the accused may put forward a petition to the confirming officer, who may
take necessary steps to satisfy himself as to the correctness, legality or propriety of the
order passed by the court, or as to the regularity of any proceeding to which the order
relates.
After confirmation, the accused may submit a petition to the Government or the Chief of
Naval Staff, who may pass such order thereon as it or he thinks fit.

The Government and the Chief of Naval Staff both possess concurrent powers to quash
the proceedings of any court-martial on the ground that they are illegal or unjust.

95. Who may confirm.-The finding and sentence of a general or district court-martial
are normally confirmed by the convening authority, empowered in this behalf in the
warrant issued by the Chief of Naval Staff, but subject to such restrictions, reservations or
conditions as may be imposed therein. (For forms of court-martial warrants see Sixth
Appendix to the Rules).

The power to confirm may be exercised by any officer, of appropriate rank, on whom the
command may devolve temporarily during the absence of the above-mentioned officers -
But the proceedings cannot be confirmed by any person who was member of the court-
martial, or any officer who had acted as the prosecutor at the trial; nor can they be
confirmed by either of them if he becomes confirming officer in the meantime. In the
latter event he must refer the proceedings to a superior authority for confirmation. For
forms of confirmation see Fourth Appendix to the rules,

96. Revision of finding and sentence. - Upon receipt of proceedings for confirmation the
confirming officer, before confirming may direct the reassembly of the court for the
purpose of revising their finding and sentence or either of them. Only one such revision
can be ordered .or made. If the court is directed to take fresh evidence, such evidence
must be taken in open court and in the presence of the accused; otherwise the proceedings
on revision must be in closed court.

If the finding is sent back for revision and the court do not adhere to it, they must revoke
it and record a new finding. If the finding is revoked; they must also revoke the sentence"
and, if the new finding involves a sentence (I. e., is not an acquittal) they must pass a new
sentence.

If the sentence only is sent back for revision, the court is not to revise the finding. It
should be, noted that under the Ordinance a finding of "not guilty" can be revised and the
accused found guilty and sentenced; a sentence can be increased on revision; and
evidence can, if so ordered, be taken on revision.

97. Non-confirmation and retrial. - As the finding and sentence of a court-martial are
not valid until confirmed, a refusal of confirmation, duly entered on the proceedings
operates to annul the whole trial. In such a case the accused has not been acquitted or
convicted and may legally be tried again; but retrials should rarely be resorted to, unless
the needs of discipline and justice demand that an offender shall not escape punishment
on account of a legal technicality. It must be remembered that if an accused at the first
trial has made out a defence, his defence at the second, trial may thereby be prejudiced.
Retrial should not be ordered until the judge Advocate General has been consulted.
 If the confirming officer considers that the finding of a court-martial is unreasonable, or
cannot be supported having regard to the evidence, or involves a wrong decision on a
question of law, or that on any ground there was a miscarriage of justice, he may withhold
confirmation.

It is open to the confirming officer to withhold confirmation either wholly or in part, and
refer the proceedings for confirmation to superior authority competent, to confirm them.

98. Power to alter findings or sentence in certain cases. – If a finding of guilty which
has been confirmed is found for any reason to be invalid or cannot be supported by the
evidence, it is open to the Government or the Chief of Naval Staff to substitute a new
finding and pass a sentence for the offence specified or involved in the new finding. Such
substitution can only be made if the new finding is such as could have been validly made
on the charge by the court-martial or the officer before whom the trial took place; and if it
appears that the court-martial, or the officer, must have been satisfied of the facts
establishing the offence. Thus if an accused has been found guilty of murder, that finding
may be altered to one of culpable homicide not amounting to murder; or a finding of
guilty of a charge of desertion may be altered to a fiJ1dina of guilty of absence without
leave. Similarly, if a sentence passed by a court-martial, which has been confirmed, is
found for any reason to be invalid the authorities mentioned above may pass a valid
sentence.

The punishment which is thus awarded by any fresh sentence must not be higher than, or
in excess of, the original punishment awarded by the court or by the officer who held the
trial.

Where the confirming authority refuses confirmation of the “guilty” " on some but not on
all charges, he must take into consideration the fact of such non-confirmation and
mitigate, remit or commute the punishment awarded as may seem just, having regard to
the offences in the charges the findings on which he has confirmed.

99. Power of confirming officer as to sentences. - If the confirming officer confirms the
finding (whether the original one or one revised under section 133 of the Ordinance, or
substitutes a finding of guilty as explained in the preceding paragraph, he has the
following powers with regard to the sentence; when confirming ;
(a) he may confirm the sentence;
(b) he may mitigate the punishment to a less amount of the same punishment;
(c) he may remit a punishment wholly or in part;
(d) he may commute the punishment to another punishment less severe than that
imposed by the court;
(e) he may postpone the carrying out of a sentence of imprisonment or detention
pending the orders of the Government,. or the Chief of Naval Staff, or any
officer empowered to convene a general or a summary general court
martial;
(f) the authorities mentioned above may suspend the sentence of imprisonment or
detention, whether or not the offender has already been committed to
prison or custody; (any period during which the sentence is under
suspension is to be reckoned as part of the term of such sentence);
(g) he may vary the form of the sentence if be finds that the sentence passed by the
court is informally expressed, or he may vary the sentence if he finds that
the punishment awarded by the sentence is in excess of the punishment
authorised by law;
(h) in the case of a sentence of imprisonment for a period not exceeding three
months, he may direct that the sentence shall be carried out by confinement
in naval custody. Advantage should be taken of this provision. where no
sentence of dismissal is added to such sentences. Unless a direction to to
this effect is given, the offender has to be committed to a civil prison (except on
active service) which is most undesirable in the case of a person who is to return to
duty after undergoing his punishment. Sentences of imprisonment
combined with dismissal should, as a rule, be undergone in a civil prison.

(xiv) Promulgation

100. Promulgation of finding, etc. - The charge, finding and sentence and any
recommendation to mercy must be promulgated to the accused as well as the confirmation
or non-confirmation of the proceedings. Promulgation is to be carried out in such a
manner as the confirming officer may direct, or, if no direction is given, according to the
custom of the service. The commanding officer is to arrange for promulgation to the
accused to be made.

(xv) Procedure after promulgation

101. Pardon and remission. etc. - Even after promulgation, the Government or the
Chief of Naval Staff (or any officer not below the rank of Captain empowered in this
behalf by the Chief of Naval Staff) may pardon the accused, remit the whole or any part
of the punishment, mitigate the punishment or commute it for any less punishment or
punishments mentioned in section 80 of the Ordinance.

As to the effect of pardon see notes to section 153 of the Ordinance.

102. Quashing of proceedings. - The Government or the Chief of Naval Staff have also
the power to quash the proceedings of any court-martial on the ground that they are illegal
or unjust, or to pass any other suitable orders. (See para 94.)

103. Altering the finding or sentence. - As regards the power to alter any finding or
sentence, after they have been confirmed, (see Rule 164 and para 98).

104. Date from which sentence operates. - A sentence of imprisonment or detention

must be reckoned to commence on the day on which the original sentence (even if it was
subsequently revised) was signed by the president of the court, of the officer exercising
powers of summary trial, If, therefore, a sentence is ultimately confirmed and
promulgated, it will probably have been running for several days date of a sentence of
dismissal passed by a court-martial see Rule 247.

105. Custody if Court-martial proceedings. - After promulgation court-martial

proceedings must be forwarded for safe custody to the office of the Judge Advocate-
General, where they must be preserved for not less than seven years in the case of a
general court-martial of three years in the case of a district or a summary general court-
martial. A person tried by a court-martial is entitled to obtain, free of charge, a copy or the
proceedings before they ate destroyed.

(xvi) Carrying out of sentence

106. Direction for execution of sentence. – An officer who confirms a sentence is

responsible for seeing that the sentence is carried into effect, and for this purpose he is to
give the necessary directions for the execution of the sentence.

Chapter XIII of the Ordinance and rules 243 to 247 deal with the execution of sentences
which have been duly passed and confirmed. The Prisoners Act, 1900. renders it
unnecessary to make elaborate provisions in the Navy Ordinance or the rules as to the
execution of sentences of imprisonment which are to be carried out in a civil prison. All
that is required is to arrange for the transmission of naval convicts to a civil prison, after
which the above-mentioned Act provides for their discipline and, when necessary, their
transfer from on prison to another.

Forms of various warrants required in this respect are provided in the fifth Appendix to
the Rules.

A person sentenced to imprisonment by a naval tribunal, however, continues to be

subject to the Ordinance during the term of his sentence, even though he is dismissed
from the service; and a person sentenced to death remains so subject till the sentence is
carried out.

106-A. Conviction of enrolled persons outside Bangladesh. - Where an enrolled

person is sentenced to dismissal combined With any other punishment while he is serving
outside Bangladesh, such other punishment, or in the case of a sentence of imprisonment
or detention, a portion of such sentence, may be inflicted before he is sent to Bangladesh.

See section 19 (3) of the Ordinance. Also see Article 12 (2) of the Visiting Forces
(Application of Law) Order, 1954 and the Fifth schedule to that Order, which are
reproduced in Pan IV of the Manual.

(xvii) Suspension of sentence

 107. Suspension of sentence.-When a sentence of imprisonment or detention has been
awarded by a naval tribunal, the confirming officer, or, the officer exercising powers of
summary trial, must consider whether the offender should be committed to undergo his
sentence or whether the execution of the sentence should be postponed until the orders of
any of the authorities mentioned in section 155 of the Ordinance have been
obtained.These authorities are the Government, the Chief of Naval Staff and any officer
empowered to convene a general or summary general court-martial. If the confirming
officer or the officer or the officer holding summary trial decides to recommend the
sentence for suspension, he should record a direction on the proceedings of the court-
martial or of the summary trial, as the case may be that the offender be not committed to
undergo his sentence until the orders of a superior naval authority have been obtained.

If the confirming officer is also a superior naval authority, namely one of those
mentioned in section 155, he may dispense with the direction referred to above and
forthwith issue orders as such authority.

A superior naval authority, mentioned above, may suspend a sentence at any time.
whether or not it has been put into execution, and he may order a suspended sentence into
execution, provided that the sentence is still running and that the offender is still subject to
the Ordinance.

It should be noted that, whether the sentence is put into execution or is suspended, it will
run as from the date of award until it normally expires; suspension does not affect the
continuity of the sentence.

108. Considerations as-to suspending sentences, and on review. - The considerations

which guide an officer in deciding whether or not it is advisable to suspend a sentence
immediately after trial are many and vary with the state of discipline of the force under his
command, the nature of the duties on which it is engaged, and the character of the man
concerned.

Suspension of sentence is primarily applicable to offences of a service nature only,

although in special cases it may be applied to offences of a civil character.

In all cases special attention should be directed to the following points :

(a) The age and previous character of the offender.
(b) Whether the offence is a first one.
(c) Whether the offence was premeditated.
(d) Whether the offender was at the time subject to any special stress, fatigue,
disability or temptation.
(e) Whether the offender was influenced by others older or of worse character than
himself.

On active service additional considerations may arise. For example, some men may
deliberately commit crimes in the hope that a long sentence may enable-them to avoid
doing duty with their ships or establishments. whilst others may commit grave naval
offences through momentary loss of control over their nerves and without any real
wrongful intent. Each case, therefore, must be considered on its merits, it being
remembered that the system of suspension of sentence is designed, on the one hand, to
ensure instant punishment for those who properly deserve it, and on the other hand, to
postpone, and often entirely to avoid, punishment for those whose offences, though
serious, are such as may in the circumstances not call for immediate committal to prison;
the power of suspension of sentence places in the hands of the commander a means of
clemency and within reach of the offender an opportunity to redeem his character.

Upon review of an already suspended sentence other considerations arise. All that need
be considered then is the gravity of the offence of which the man was convicted, his
previous character and his conduct since conviction. As a general rule, it may be said that
the more grave the offence and the worst his character before conviction the longer is the
period required to prove whether the man is honestly trying his best to redeem himself
and that only acts of conspicuous merit (such as bravery, or devotion to duty in action)
would justify a remission of sentence without regard to the length of the period during
which it had been suspended.

Apart from such special acts, remission of sentence would be justified if the Sailor has by
his consistent good conduct really shown that he has done his utmost to retrieve his
character and become a good and efficient sailor.

Unsatisfactory conduct subsequent to suspension will justify an order to put a. suspended

sentence into execution, whilst a mere negative abstention from crime would point to the
advisability of directing a reconsideration of the sentence at a later date.

In considering a case, a report must always be obtained from the man's commanding
officer, which should be attached .with a copy of the man's conduct sheet for future
reference.

A sailor under a suspended sentence is to be regarded entirely as a free man and is to be

placed under no disability whatever excepting only the liability of having his suspended
sentence put into execution, if he misbehaves.

When a superior naval authority receives the proceedings of a court-martial containing a

recommendation for suspension of the sentence, he should, to avoid undue delay,
communicate his decision by signal to the officer commanding concerned, who must at
once issue the necessary instructions. Until instructions are received from the superior
naval authority, the offender cannot be committed to undergo his sentence.

109. Review of suspended sentences. - It is the duty of the superior naval authority,
specified in section 155 of the Ordinance, or all officer not below the rank of lieutenant
commander duly authorised by such authority, to review suspended sentence at intervals
of not more than four months. He may in his discretion either keep a suspended sentence
further suspended by ordering it to be brought forward for reconsideration on a specified
date not more than four months ahead, or if not himself a superior naval authority, refer it
to such authority with a recommendation either that the offender be committed to undergo
the unexpired portion of the sentence or that the sentence be remitted.
 110. Dismissal combined with suspended sentence. - In the case of a sentence of
dismissal combined with a suspended sentence, the dismissal does not take effect until so
ordered by a superior naval authority. 1 If the offender is subsequently committed to
undergo the unexpired portion of his sentence he should ordinarily order the dismissal to
take effect as provided in rule 247. If the sentence remains suspended until it expires the
dismissal, though automatically remitted under section 163 of the Ordinance, should
nevertheless be formally remitted under section 153 of the Ordinance.

111. Procedure when sentenced for further offence. - Where a person already under a
suspended sentence is awarded a further sentence which is also suspended, the two
sentences will run concurrently. If the further sentence is not suspended and is for a period
of three months or more, the offender must also be committed on the unexpired portion of
the previous (suspended) sentence, but both sentences will run concurrently. If the further
sentence is for a period of less than three months and is not suspended, the previous
sentence continues to be suspended unless a superior naval authority orders that the
offender be committed.

(xviii) Summary general court-martial

112. Convening of summary general court-martial. - A summary general court-martial

may be convened by :-
(a) any authority having power to convene a general court-martial or any prescribed
officer empowered in this behalf and to such extent as may be specified in
the warrant issued under the hand of the Chief of Naval Staff.
(b) on active service, an officer commanding a flotilla or squadron not below the
substantive rank of commander, if in the opinion of such officer
commanding, such opinion to be recorded in writing and to be conclusive, it is
not practicable with due regard to discipline and the exigencies of the
service to try the alleged offender by a general or district court-martial.

The president of a summary general court-martial shall not be below the substantive rank
of a Lieutenant commander.

For form of convening order see the Fourth Appendix to the rules.

113. Powers and constitution.-A summary general court-martial must consist of not less
than three and not more than five officers. It has the same powers as a general court-
martial, that is to say, it may try any person subject to naval law, for any offence
punishable under the Ordinance, and may pass any sentence authorised thereby, except
that it cannot pass a sentence of death without the concurrence of all the members of the
court.

The officers detailed to form the court must have held commission for not less than three
years, and must be of or above the rank of lieutenant." The officer convening the court
may also appoint a fit person to act as judge advocate.
 114. Record of proceedings.-A brief record of the evidence of all the witnesses
examined by the court should normally be taken down in writing and attached to the
proceedings; but if it appears to the officer convening the court that circumstances prevent
compliance with this, provision, he may give a direction that the trial may be carried on
without any such record being taken down.

115. Application of rules. - The rules applicable to the procedure at a trial by summary
general court-martial are to be, as far as practicable, the same as those applicable to a
district court-martial. Similarly, no finding or sentence of a summary general court-
martial is valid unless it is confirmed by proper authority.
 CHAPTER V
EVIDENCE
(I) Introductory
1. Rules of evidence applicable to court-martial. -Section 114 of the Navy Ordinance
lays down that "subject to the provisions of this Ordinance", the rules of evidence in
proceedings before court-martial shall be the same as those which are followed in criminal
courts. These rules are embodied in the Evidence Act, 1872.1 The special provisions
subject to which the Evidence Act has thus been made applicable to court. -martial are
contained in section 115 and sections 118 to 122 of the Ordinance. The Evidence Act is
mainly based on the English law of evidence, but modified to suit local conditions.

2. Questions to be determined at every trial - The object of every criminal trial is, or
may be, to determine two classes of questions-questions of fact and questions of law. If the
accused person pleads guilty, there is no question of fact involved in the trial; but if he
does not, he raises two questions or issues, first, whether the facts charged against him
happened; and next, if they did happen, what is their legal consequence. In trials before
court -martial, the members of the courts both find the facts and lay down the law. It is
their duty when applying their minds to questions of fact, to consider themselves bound by
the rules of evidence above referred to. In deciding question of law, a court-martial should
be guided by the advice of judge advocate (if a judge-advocate has been appointed) and
should not disregard it except for very weighty reasons.

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

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

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

principle between the method of inquiry in judicial and in extrajudicial proceedings. In
either case a person who wishes to find out whether a particular event did or did not
happen tries, in the first place, to obtain information from persons who were present and
saw what happened (direct evidence), and failing that he tries to obtain information from
persons who can tell him about facts from which he can draw an inference as to whether
the event did or did not happen (indirect evidence). But in judicial inquiries the
information given must be on oath or affirmation, and must be liable to be tested by cross-
examination, and the Evidence Act, by allowing evidence to be given only regarding facts
which are "in issue" or "re1evant", excludes particular classes of indirect evidence which
an ordinary inquirer would naturally take into consideration. Statements so excluded are
said to be "not admissible as evidence."
 5. Reasons for excluding certain classes of evidence. - The answer to the question why
particular statements, oral or written, should be excluded from evidence in judicial
inquiries is that their exclusion has been found by practical experience useful on various
grounds, and notably on the following :
(1) It assists the court.
(2) It secures fair play to the accused.
(3) It protects absent persons,
(4) It prevents waste of time.

It assists the court by concentrating their attention on the questions immediately before
them, and preventing them from being distracted or bewildered by facts which either have
no bearing on the questions before them, or have so remote a hearing on those questions as
to be practically useless as guides to the truth, and from being misled by statements or
documents, the effect of which, through the prejudice which they excite, is out of all
proportion to their true weight. It secures fair play to the accused, because he comes to the
trial prepared to meet a specific charge, and ought not to be suddenly confronted by
statements which he had no reason to expect would be made against him. It protects absent
persons against statements affecting their characters. And, lastly, it prevents the infinite
waste of time which would ensue if the discussion of a question of fact in a court were
allowed to branch out into all the subjects with which that fact is more or less connected.

6. "Proved." - The definitions of "proved", "disproved" and "not proved" in section 3 of

the Evidence Act should be particularly noticed. These are:-
"A fact is said to be proved when, after considering the matters before it, the court either
believes it to exist, or considers its existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition that it exists."
"Disproved" - A fact is said to be disproved when, after considering the matters before it,
the Court either believes that it does not exist, or considers its non-existence so probable
that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it does not exist."
"Not proved." "A fact is said not to be proved when it is neither proved nor disproved."

7. These definitions to be borne in mind. - Members of court-martial should bear these

definitions carefully in mind when deliberating upon their finding, and they are fortunate
in having so clear a guide in the performance of a most difficult duty.

(ii) What must be proved?

8. Charge must be proved. - What must be proved, in order to obtain a conviction, is the
particular charge brought. As a general rule, every charge alleges, or ought to allege, a
specific offence constituting a breach of a specific enactment; and, subject to certain
exceptions, it is of this offence, and of this offence alone, that the person charged can be
convicted. The reason for the rule is the unfairness of requiring a person to meet a charge
for which he is not prepared; And the exceptions will be found not to conflict with this
reason, since they relate either to cases where the distinction between two offences is
mainly technical or a matter of correct legal description; or to cases where the distinction is
one of degree, but not of kind, and the accused, having been charged with the more
serious, is allowed to be convicted of the less serious offence.
 9. But its substance only need be proved. - It is the substance only of the charge that
need be proved. Allegations which are not essential to constitute the offence, and which
may be omitted without affecting the validity of the charge, do not require proof, and may
be rejected as surplusage. In some cases, as in charges against a sentry for sleeping on his
post, or in charges for not giving immediate notices of desertion, the time or place of the
offence is material, but as a rule, it is not so. Where the court think that the facts proved,
differ materially from the facts alleged in the particulars of the charge, but prove the same
charge, they are empowered by rule 155 (4) to record a special finding .instead of a finding
of "Not guilty".

(iii) Arrangement of the Evidence Act

10. Arrangement of the Act. - The law of evidence shows how a court may 1awfully be
convinced that the facts alleged in the charge happened, or that their happening was so
probable that it may be regarded as proved. The Evidence Act deals with this subject thus:
(a) Part I and certain portions of Part III show what sort of facts may be proved in
order to produce this conviction in the mind of the court.
(b) Part II deals with the proofs of facts, that is, what sort of proof is to be given of
those facts.
(c) The greater portion of Part III deals with the production of that proof, that is,
who is to give it, and how it is to be given.

Unlike the corresponding provisions of English law, which assume that we know what is,
speaking generally, admissible as evidence and merely lay down certain exclusive or
negative rules as to what shall not be admitted, the Evidence Act states definitely that
evidence may be given of "facts in issue" and of such other facts as are declared by it to be
"relevant" but of no others. The test therefore as to the admissibility of any piece of
evidence is,-does it state a fact in issue or a relevant fact (as defined)? If it does, it is
admissible; if not, it is inadmissible. A definite rule such as this is clearly more suited to
local conditions than the English system would have been, while the list of "relevant" facts
has been so framed as to arrive at practically the same results as in English law.

11. Facts in issue. - The facts which are "in issue" in a criminal trial are those on which,
either by themselves or in connection with other facts, the existence, non-existence, nature
or extent of the accused person's liability to punishment depends. For instance A is accused
of the murder of B. At his trial the following facts may be in issue:-
That A caused B's death;
That A intended to cause B's death;
That A had received grave and sudden provocation from B;
That A, at the time of doing the act which caused B's death, was by reason of unsoundness
of mind. incapable of knowing its nature.
(iv) Relevant Facts
12. What evidence is admissible. - We have now to consider what facts are "relevant".
The Evidence Act answers this question by enumerating these in the sections which make
up Chapter 11 "of the relevancy of facts". If a fact is not included in this enumeration of
"relevant facts" it is inadmissible unless it is actually in issue, or its admission is specially
provided for elsewhere in the Act, or by some other provision of law.

13. Circumstantial evidence. - Facts which are "relevant" or which are otherwise
specially admitted, S constitute what is sometimes called "circumstantial evidence" of the
fact in issue with which they are connected. From the circumstances in which crimes are
ordinarily committed, it follows that the evidence of witnesses who directly saw the main
"fact in issue" happen can rarely be obtained, and that in very many cases reliance must be
placed on the circumstantial evidence. Such evidence is in no way inferior to direct
evidence, and is in some respects superior to it ; for it has become a proverb that "facts
cannot lie", whilst witnesses may. On the other hand, it must always be borne in mind that
if facts cannot "lie", they may, and often do deceive; in other words, that the interpretation
which they appear to suggest is often not that which ought to be placed upon them.
Therefore, before the court finds an accused person guilty on circumstantial evidence, it
must be satisfied not only that the circumstances are consistent with the accused having
committed the act, but that they are inconsistent with any other rational conclusion than
that the accused was the guilty person.
One of the leading rules with respect to this class of evidence was stated by a jurist in the
following terms:-
"The facts on which it is sought to found the inference of guilt must be visibly and.
evidently connected with the crime".
This rule he then illustrated by contrasting two groups of facts, of which the first would
not, whilst the second would, constitute convincing circumstantial evidence of a crime.
The characteristic difference between good and bad circumstantial evidence cannot be
better explained than by producing the following illustration:
(i) The accused was a man of bad general character.
(ii) He belonged to a nation characteristically regardless of human life.
(iii) He narrowly escaped conviction on a charge of murder some years before.
(iv) There is a strong ill-feeling between his nation and that of the deceased.
(v) He Was heard to make exclamations, in his sleep indicating a consciousness of
having committed some terrible deed.
(vi) The deceased was robbed, and the accused is proved to be notoriously greedy about
money.

It is scarcely necessary to say that, if a series of such circumstances were indefinitely

accumulated, it would fail to produce in a sane mind a conviction that the accused was
guilty. There is no visible connection between these' facts and the facts sought to be
established that the accused committed the murder, as all the facts are perfectly consistent
with his innocence. Contrast such circumstances with such as ordinarily present
themselves in strong cases of circumstantial evidence. Let us take, for instance the
following series of facts:-

(i) The deceased was found apparently murdered by a pistol bullet, which penetrated
the skull.
(ii) On the ground near the body was found a small fragment of a newspaper, which
smelled strongly of burnt powder, and led to the supposition that had been
used in separating the powder from the ball; and on the accused being
arrested there was found another piece of newspaper, which corresponded
minutely at the point where it was torn with that found near the body of the
deceased.
(iii) In a pond near the scene of the murder was found a pistol, which had evidently
been only recently thrown into the water, and into which the bullet fitted.
(iv) The pistol was proved to have belonged to a gentleman, in the neighborhood; but
it also appeared that the prisoner was a servant in his employment, and that
the pistol was missed the day before murder from among several fowling
pieces, pistols, powder flasks, and other articles connected with the
paraphernalia of the sportsman which were arranged in a small room in the gentleman's
house devoted to the purposes of sport. It was a part of the prisoner's duty to
keep this room and its contents in order.
(v) When asked whether he ever saw the pistol, he denied it.
(vi) On the prisoner were found two bank notes, which were proved to have been
given to the deceased in part payment for a horse sold by him to a neighbor.

The first of these facts at once suggests suspicion against the accused. As the second and
subsequent circumstances are disclosed, the suspicion becomes intensinfied; and, as the
narrative goes on, the strong apparent connection between the facts and the crime rapidly
culminates, until, even before the last of them is reached, the climax of moral certainty is
attained and the mind is forced to accept the conclusion that the accused was the
perpetrator of the crime.

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

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

16. Facts which are the cause, etc., of a relevant fact. - Facts which are the occasion,
cause, or effect of a fact in issue or relevant fact or which afforded an opportunity for its
occurrence are relevant.
For example, on the trial of A for robbing B, the facts that shortly before the robbery B
had money in his possession and showed if publicly to third person are relevant. Under this
rule also evidence may be given of bruises which a medical officer or other person sees
next day on the body of the petty officer whom a sailor is accused of striking.

17. Facts showing motive or preparation. - Facts which show or constitute a motive or
preparation for a fact in issue or relevant fact are themselves relevant2, as is also the
conduct of accused persons and those against whom offences are committed, if such
conduct is influenced by a fact in issue or relevant fact.
Thus evidence may be given that, after the commission of the alleged offence, the accused
absconded, or was in possession of the property, or the proceeds of property, acquired by
the offence, or that he attempted to conceal things which were or might have been used in
committing the offence, or as to the manner in which he conducted himself when
statements were made in his presence and hearing. This rule also allows evidence of a
complaint made shortly after the alleged crime was committed; and of the terms in which
such complaint was made to be given in any case in which an offence against the
complainant is the subject of proceedings. The English law only allows such evidence in
case of rape and similar offences, but our law is wide enough to cover other crimes, e.g.,
robbery, causing hurt, etc.

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

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

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

20. Acts of conspirator. - In cases of conspiracy, after prima facie evidence has been
given of the existence of the plot, and of the connection of the accused therewith, anything
said, done or written by one conspirator in reference to their common intention is a
relevant fact as against each and all of the conspirators.
Thus, on the consideration of a charge of mutiny, or inciting a person to mutiny, evidence
of this kind may, after such prima facie proof, be received against a particular prisoner.
The Bangladesh law is wider in this respect than that of England. Under English law only
acts and statements of conspirators in furtherance of the common purpose may be given in
evidence, and only if the act was done or statement made before the connection of the
conspirator against whom it is offered with the conspiracy had ceased. The Bangladesh law
admits against a conspirator everything said, done or written by a co-conspirator in
reference to the common intention, even if said, done or written after the conspirator
against whom it is offered had ceased to be connected with the conspiracy or before he
joined it. The English law would reject such evidence as hearsay (in the case of things
written or said) and as irrelevant in the case of things done.

21. Inconsistent facts. - Facts which are inconsistent with, or which render highly
probable or improbable, a fact in issue or relevant fact are themselves relevant.
This rule is of importance to be party whose object is to disprove something which is
asserted by the opposite side. An "alibi" is a familiar instance of this. If A is accused of a
crime committed at Khulna and he can show that he was at Chittagong on the same day,
his innocence is clear, while, if he can even show that shortly before and after the time
when the crime was committed he was so far from Khulna that it was most improbable he
could get there and back, a strong point in his favour will have been established.

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

Where the gist of an alleged offence is fraud, evidence of similar offences is admissible to
prove the intent. Thus, on a charge of obtaining cash by falsely representing that the
cheque given in exchange was good, in order to prove intent or knowledge, evidence is
admissible as to another cheque (dishonoured on presentation) having been given to a third
person.

23. Other instances. - In support of a charge for malicious, disrespectful, or unbecoming

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

24. Facts showing intention. - Facts which show whether an act was intentional or
accidental by indicating the existence of a series of acts of which it formed part are
relevant.
This is a special case of the principle discussed above. Thus, on a charge of murder by
shooting, if it is questionable whether the shooting was by accident or design, evidence
may be given that at another time the accused intentionally shot the same person. Again,
on a charge of fraudulently issuing passage warrants to certain persons who were not
entitled to them, after having proved that the accused had issued the warrants, evidence
may be admitted of a series of similar transactions extending over a considerable period as
negativing a defence that the issue of these warrants was due to a mistake on the part of the
accused.
 25. Course of business-Facts which show a course of business according to which a fact
in issue or relevant fact would naturally have been done, are relevant. For example, the
question is whether a particular letter reached A. The facts that it was posted in due"
course, and that it was not returned through the Dead Letter Office, are relevant.

(v) Admissions and Confessions

26. Rules as to admissions. - Admissions are statements made by a party to the
proceedings, or his representative, as to the subject matter of the case, or the facts relevant
thereto. The general rule is that they may "be proved against those who made them but not
in their favour. In connection with crime admissions usually occur in the form of
confessions. A confession is an admission made at any time by a person charged with a
crime, stating or suggesti1)g the inference, that" he committed that crime. The value of a
confession, if true, is obviously very great, but special provision as to their receipt has
been made in the Evidence Act, in order to guard against torture or duress for the purpose
of exorting them. Confessions are therefore only relevant subject to certain conditions.
These conditions will now be considered.

27. Confession only admissible against person who makes it. The general rule is that a
confession is not admissible as evidence against any person except the person who makes
it. But a confession made by one accomplice in the presence of another is admissible
against the latter to this extent, that if it implicates him, his silence under the charge may
be used against him, whilst on the other hand, his prompt repudiation of the charge might
tell in his favour. The Bangladesh law, differing in this respect from the English, further
enacts that when two or more persons are tried jointly for the same offence, a confession
made by one of such persons, affecting himself and any other of the accomplices jointly
tried with him, when proved, may be taken into consideration by the court against that
other accomplice as well as against the person who made it. The confession may have been
made at anytime and not necessarily in the presence of the accused; but the confessing
person must implicate himself substantially to the same extent as the accomplice against
whom the confession is taken into consideration. Though the confession of an accomplice
may thus, under certain circumstances, be "taken into consideration" and thus be an
element in the consideration of the case against the other co-accused, it must necessarily be
of less weight than sworn evidence of an accomplice who is not jointly tried. The courts
have accordingly established the following rules with regard to this kind of evidence :-

(1) Where there is absolutely no other evidence, such a confession alone will not
justify the conviction of a person who is being tried jointly with its author.
(2) The confessions of co-accused must be corroborated by independent evidence,
both in respect of the identity of all the persons affected by it and of the fact
that the crime was committed.

28. Confession must be voluntary. - To be relevant, and therefore admissible as

evidence, a confession must be voluntary. Under the English law the onus lies upon the
prosecution to prove that a confession is voluntary before it can be used in evidence. Under
the Bangladesh law, though it is highly desirable that the prosecutor should prove the
circumstances in which a confession was made, the onus lies upon the accused of showing
that a confession made by him was not voluntary and, therefore, irrelevant. Unless,
therefore, it appears doubtful whether a confession is voluntary, a court need not require
the prosecutor affirmatively to establish that fact.
 29. What this means. - A confession is not deemed to be voluntary, if it appears to the
court to have been caused by any inducement, threat, or promise, having reference to the
charge against the accused person, proceeding from a person in authority (e. g., the
prosecutor or a person having the custody of the accused) and sufficient, in the opinion of
the court, to give the accused person grounds, which would appear to him to be reasonable,
for supposing that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him. 1 Thus, if a handbill issued by
the Government promising reward and pardon to any accomplice in a certain crime who
would confess were brought to the know ledge of an accomplice in the crime, who, under
the influence of a hope of pardon made a confession. that, confession would not be
voluntary and could not be used at his trial.

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

31. Confession obtained by fraud, etc. - It is, of course, improper to endeavor to trap a
man into incriminating himself; but if a confession is otherwise admissible as evidence it
does not become inadmissible merely because it was made under a promise of secrecy, or
in consequence-of a deception practiced on the accused person for the purpose of obtaining
it, or when he was drunk, or because it was made in answer to questions which he need not
have answered, or because he was not warned that he was not bound to make the
confession, and that evidence of it might be given against him.

32. Confession voluntary if made after removal of impression produced by

inducement, etc. - A confession is deemed to be voluntary if, in the opinion of the court, it
is shown to have been made after the complete removal of the impression produced by any
inducement threat, or promise which would otherwise render it involuntary.2 Thus, A is
accused of a service offence, B, an officer tries to induce A to confess by promising to get
the commanding officer to dismiss the case with an admonition if he does so. The
commanding officer informs B that he cannot give any such undertaking, and this is
communicated to A. A statement subsequently made by him is voluntary.

33. Confession to police officers.-Two provisions which are peculiar to Bangladesh Law
may be mentioned here:
(1) No confession made to a police officer can be proved against a person accused of
an offence.
(2) No confession made by any person whilst in the custody of a police officer, unless
it be made in the immediate presence of a magistrate, can be proved as against
such person.

Nevertheless, facts discovered in consequence of a confession which is itself inadmissible

under (1) or (2) above, and so much of the confession as distinctly relates to the facts
thereby discovered, may be proved. Thus A, accused of house-breaking by night, makes a
confession to a policeman. Part of it is that A had thrown it lantern into a certain pond; the
fact that he said so, and that the lantern was found in the pond in consequence, may be
proved.

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

the whole of it (subject as stated in para 33) must be given, and not merely the parts
disadvantageous to the accused person.

35. Confession made on oath in previous proceedings.- Subject to what is stated in para
90 below, a confession may be used as such against the person who makes it, though it was
given as evidence on oath and though the proceedings in which it was given had reference
to the same subject matter as the proceeding in which it is to be used; but if, after refusing
to answer any question" the witness was compelled to answer, his answer is not admissible
against him. Thus, A is charged with causing hurt to B. A had voluntarily appeared as a
witness for C, who was charged with the same offence at a previous trial, and had not
declined to answer any question. A's evidence can be used against him on his own trial.
The same rule applies to statements made by a man when charged before his commanding
officer, or at the taking of a summary of evidence. The proceedings of a board of inquiries
or, any confession or statement made at a board of inquiry, cannot be used as evidence
against a person subject to the Navy Ordinance before a court-martial, unless the court-
martial is one for the trial of such person for wilfully giving false evidence before the
board of inquiry.

(vi) Statements by persons who cannot be called as Witnesses

36. "Hearsay" excluded. - As a general rule, the statements of person not called as
witnesses are inadmissible as evidence of the truth of the facts stated. This does not mean
that evidence of what absent persons said is absolutely excluded. Such statements may, for
instance, be admissible as part of the transaction3 as conduct influenced by it4 or as
indicative of states of mind or body which are relevant.6 The cries of a mob led by the
accused, the complaints referred to in para. 17 above, and statements made by the victim in
a poisoning case before his illness as to his health, and during his illness as to his
symptoms are examples of this.

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

38. Statements of absent persons which are specially admitted. - In addition to such
statements as are relevant by reason of their falling under one of the heads of relevancy
already discussed, the most important of the statements thus made evidence are :-
(I) Statements by persons since dead as to the cause of their death;
(2) Statements of entries made in the ordinary course of business;
(3) Statements which are against the interests of their authors or which would have
exposed them to a criminal prosecution or a suit for damages.
 39. Comparison with English Law. - The law of Bangladesh in all the above cases
differs in a greater of less degree from English law. As to (I) the English rule is that a
dying declaration is only admissible in trials for the murder or manslaughter of the
declarant and only if it is proved that he had, at the time of making the declaration,
abandoned all hope of living and was expecting to die within a very short time, though not
necessarily immediately. Under law, however, the statement of a person who has since
died is admissible in any proceeding in which the cause of his death comes into question,
and there are no conditions as to the declarant being in expectation of death or having
abandoned all hope of recovery. These considerations do not, therefore, affect the
admissibility of such evidence, though they may materially affect the weight which should
be attached to it.

40. The statements, etc., referred to in (2) and (3) are, under English law, only admissible
when their author is dead. The Evidence Act, however, allows of such statements being
given in, evidence when he cannot be found, or has become incapable of giving evidence,
or when his attendance cannot be procured without an amount of delay or expense, which,
under the circumstances of the case, appears to the court to be unreasonable.

41. If such a statement or entry as is referred to in (2) was made in the ordinary course of
business no question' as to the source of the information or the time when the entry or
statement was made will affect its admissibility. Under English law such statements or
entries are only admissible if made in the ordinary course of business, in performance of a
duty and contemporaneously with the act to which they relate; further they can only prove
facts which it was the duty of the declarant to include in the statement or entry and of
which he had personal knowledge. The Bangladesh law is different in these respects; so
long as the statements or entries are made in the ordinary course of business, it need not
have been the declarant's duty to make them, they need not have been made
contemporaneously, it is not necessary that the declarant should have had personal
knowledge of the transaction recorded, and they may be used to prove independent
collateral matters. i.e., matters which it was not necessary to include in the ordinary course
of business.

42. Evidence of previous enquiry when admitted. - It may sometimes happen that a.
material witness, who has given evidence at a preliminary inquiry, cannot attend at the
trial. If the evidence was given in a judicial proceeding, or before a person authorized by
law to take it and was taken on oath or affirmation, with liberty to the accused to cross-
examine (as for instance, the inquiry before a committing magistrate), the Evidence Act, t
allows it to be used at the subsequent trial of the accused on the same charge, if the
witness:-

(I) is dead,
(2) cannot be found,
(3) is incapable of giving evidence,
(4) is kept out of the way by the accused, or
(5) if his presence cannot be obtained without and amount of delay or expense which,
under the circumstances of the case the court considers unreasonable.
 43. This provision will sometimes admit of the evidence which was given at a court-
martial which is' dissolved before coming to a finding being used at the subsequent trial of
the same accused before another court. It will also admit (subject to the above conditions)
of evidence recorded before a magistrate, in the presence of the accused and with liberty to
cross-examine, in relation to the same charge as that on which he is afterwards tried by
court-martial being used at such subsequent trial. This provision may be useful as a means
of perpetuating testimony when the life of a witness is in danger, or he is under orders for
active service and cannot be detained to give evidence.

44. Summary of evidence, how far admissible. - In the case of a trial by court-martial,
the same rule applies making a summary of evidence taken before a commanding officer,
when an accused person is remanded for trial, evidence under the same circumstances as
depositions taken on oath and in a judicial proceeding. Accordingly the statement of a
witness duly recorded on oath or affirmation at the summary may be admitted as evidence
of the facts recorded in it. Also where a statement recorded in the summary is put in issue
before a court-martial, as, for example, where a discrepancy is alleged between that
statement and the evidence given before the court, or where the alleged willful falsehood
of such a statement is made the subject of a charge, the summary, if purporting to give
verbatim signed statement of the witness, may be given in evidence as confirmatory of the
statement having been made.

(vii) Statements made under Special Circumstances

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

46. Entries in books of accounts. - Thus, by the Evidence Act, entries in books of
account regularly kept in the course of business are relevant, but such entries are not, by
themselves, sufficient to charge any person with a liability.

47. Entries in public records, etc. - So also an entry in any public or other official book
register or record made by a public servant in the discharge of his official duty or by any
other person in the discharge of duty imposed on him by law, is admissible as evidence of
the facts to which it relates. Statements in maps generally offered for public sale, or
prepared. under the authority of the Government, are similarly admissible as evidence as to
matters usually represented in such maps, as are also statements of the law of any country
contained in the official publication of its Government, and a statement of any fact of a
public nature, if made in a recital contained in any Act of parliament, or in a Government
notification apearing in the Official Gazette is admissible as evidence of that fact.

48. Special provisions of Navy Ordinance. - Under the special provisions of the Navy
Ordinance enrolment paper, letters, returns and documents respecting service dismissal or
discharge: Army, Navy or Air Force lists and gazettes published by authority and showing
the status and rank of officers or warrant officers: records in Service books certificates in
certain cases stating fact, date and place (but not the circumstances) of the surrender or
apprehension of absentees: the reply of a Government officer to a communication
addressed to him under section 121 of the Ordinance and the "return" of a commission are
made evidence of the facts stated in them.

49. Judgments of Courts of law. -The judgments of courts of law are also in some cases
relevant facts. Court-martial are chiefly interested in this matter so far as it concerns pleas
in bar of trial and the proof of previous convictions. As regards the former it need only be
remarked that the production of the judgment of a criminal court convicting the accused of
the same offence, or a certified copy thereof, effectually bars his trial: while as to the latter.
a previous conviction may be proved either by a verbatim extract from the Service books
or by the production of a properly certified extract from the records of the court which
convicted the accused..

(viii) Opinion of Third Persons. When relevant

50. Rules as to opinion. - The general rule is that the opinion or belief of a witness is not
evidence. A witness must depose to the particular facts which he has seen, heard, or
otherwise observed, and it is for the court to draw the necessary inference from these facts.
Thus, a witness may not on a trial for desertion characterise the prisoner's absence as
"desertion". This is a matter of inference, and is the point which it rests with the court to
determine according to the evidence. The examination of the witness should be confined to
the fad: of accused absenting himself, and to such other facts relevant to the charge as may
be within the knowledge of the witness. In certain exceptional cases, however, opinion is
for special reasons admitted as evidence. These cases are dealt with in sections 45 to 51 of
the Evidence Act, which, following the system already explained, declare these opinions to
be relevant, releaving all others outside the enumeration of relevant facts.

51. Exception in case of "Experts". -The chief exception to the rule excluding opinion is
that the opinion of an "expert" - i.e., a person specially skilled in a foreign law, in any
science or art, or in the identification of handwriting or finger impressions, is admissible
on any point within the range of his special knowledge.

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

53. Grounds on which opinions are based when relevant. - When an opinion is
relevant, facts which support or are inconsistent with it, and the grounds on which it is
based, are also relevant. t Evidence as to the grounds on which an opinion is based can,
except as mentioned in para 71 below, only given when the author of the opinion is alive,
as the grounds on which a deceased person's opinion was based must obviously be either
guess-work or hearsay.

54. Handwriting who may give opinions regarding it. -The opinion of any person
acquainted with the handwriting of the person by whom any document is supposed to have
been written or signed is relevant even through the former is not an "expert" in
handwriting. A person is said to be acquainted with the hand writing of another if-
(I) he has seen that person write;
(2) he has received documents purporting to be written by that person in answer to
documents written by himself or under his authority and addressed to that person;
or
(3) documents purporting to be written by that person have been habitually submitted
to him in the ordinary course of business.

55. Proof of handwriting by comparison. - Handwriting may also be proved by

comparison, under section 73 of the Evidence Act. It will, therefore, be convenient to
consider this section here, though it occurs in a later portion of the Act. It allows a writing
admitted or proved to be written by any person to be compared with another which
purports to be written by that person, in order that the genuineness of the latter may be
established or rebutted. Nothing is said as to who is to make the comparison, and it may,
therefore, be made either by the court or by an expert. A combination of both methods is
the safer course. A comparison of handwriting is at all times as a mode of proof hazardous
and inconclusive, and specially so when it is made by one not conversant with the subject
and without such guidance as might be derived from the arguments of counsel and the
evidence of experts.
The same section goes on to provide that a court may require any person present in court
to write any words or figures for the purpose of enabling the court to compare the words or
figures so written with any words or figures alleged to have been written by such person.
The comparison is, it will be noticed, made by the court in this case. It must be borne in
mind that writing made for the purpose of comparison is not unlikely to be disguised.
The importance of an expert's evidence in such cases lies not so much in the opinion
which he expresses as in the fact that he draws. die attention of the court to similarities and
dissimilarities which they might not notice without his assistance, but the value of which
(when pointed out) they can fully appraise for them selves. Where a question of forgery is
to be decided by comparison of handwritings only, the assistance of an expert is most
desirable.

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

57. Summary of law as to proof of authorship of document. The result of the foregoing
remarks is that the authorship of a document may be proved by:-
(a) the evidence of experts (para. 51)
(b) the evidence of persons acquainted with the handwriting of the alleged writer
(para 54).
(c) comparison under Evidence Act. section 73 (para. 55.)
(d) the admission of the writer or the evidence of someone who saw him write it
(para. 56). and
(e) circumstantial evidence (para. 56).

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

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

(ix) Character. when relevant

60. Evidence of character when admissible. - In criminal proceedings (in which terms
are included trials by naval tribunals) the fact that the accused is of good character is
always relevant. but the fact that he had a bad character is irrelevant, unless evidence has
been given that he has a good character. "Character" by Bangladesh law includes both
reputation and disposition, but evidence may be given only of general reputation and
general disposition and not of particular act by which reputation or disposition were
shown. As an exception. However, to this, previous convictions can be proved as evidence
of good character has been given.

61. Evidence of character, etc. after conviction. - By a special provision5 of the Navy
Ordinance, evidence of character (good or bad), previous convictions, and certain other
prescribed matters, information on which is necessary to enable the court to decide upon
their sentence, is admitted after the accused has been convicted. With these exceptions, no
unfavourable evidence as to character is admissible unless the accused has brought it on
himself by calling or eliciting evidence of his good character.

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

63. Evidence tending to show disposition but admissible. -As a general rule, it is not
competent for the prosecution to adduce evidence tending to show that the accused has
been guilty of criminal acts other than those included in the charge against him for the
purpose of leading to the conclusion that he is a person likely from his conduct or character
or disposition to have committed the offence for which he is being tried. Thus, on a charge
of murder, the prosecutor cannot give evidence of the conduct of the accused in respect of
other persons for the purpose of proving a blood-thirsty and murderous disposition. On a
charge against a sentry of having been asleep on his post on a particular occasion, evidence
that he had been found asleep on his post on other occasion would not be admissible for
the purpose of showing that he would be likely to commit the offence; and on a charge of
insubordination, evidence of insubordinate conduct on other occasion would not be
admissible for the purpose of showing a tendency to insubordinate conduct. Evidence as to
other crimes committed by the accused may, however, be admissible under paras. 15, 22 or
24, above, if these crimes form part of the same ransaction, show the existence of a
relevant state of mind of body, or negative the theory of accident or misfortune.

64. Conclusion of lists of "relevant facts". - This concludes the list of what the Evidence
Act classes as "relevant". facts. Special provision is, however, made elsewhere for the
admission of certain other evidence, a consideration of which may be helpful to a court in
arriving at a decision as to how far a witness is to be believed.
These are :-
(1) Answers to certain questions which are admissible – on cross- examination.
(2) Evidence impeaching the credit of witnesses.
(3) Corroboration of the statements of witnesses.
They will be considered later, when dealing with the portions of the Evidence Act in which
they occur.

(x) Facts which need not he proved

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

66. Judicial notice.-A court is said to take judicial notice, in other words not to require
evidence, of any facts which are assumed to be so generally known as not to require
special proof. By S.115 of the Navy Ordinance a court-martial is expressly authorised to
take judicial notice of all matters within the general service knowledge of its members.
Thus, evidence need not be given as to the relative rank of officers, as to the general duties,
authorities, and obligations of different members of the service, or generally as to any
matters which an officer, as such, may reasonably be expected to know. The Evidence Act
further requires courts to take judicial notice of certain other matters. Among these are; all
Bangladesh laws, Acts of the British Parliament and of the other Legislatures of
Bangladesh, certain seals of the courts, the seal of any notary public, the existence title and
flag of recognized States, the divisions of time, the geographical divisions of the world, the
territories of the British Crown the commencement, continuance and termination of
hostilities, the names of members and officers of the courts and of all advocates, attorneys,
etc., and the' 'rule" of the road, on land and at sea.

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

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

69. Plea of "Guilty". - The commonest instance of an admission is a plea of guilty, which
is an admission by the accused of all the averments in the charge-sheet. On such a plea no
further evidence of the guilt of the accused is necessary and he convicted and sentenced
accordingly.

(xi) Oral Evidence

70. Oral Evidence defined. - All other facts must be proved by oral or documentary
evidence. Oral evidence means statements made to the court by witnesses, while
documentary evidence means the production of documents for the inspection of the court.
All facts, except, the contents of documents, may be proved by oral evidence which must
in all cases be direct; that is to say :
if it refers to a fact which could be seen, it must be the evidence
of a witness who says ,he saw it.
if it refers to a fact which could be heard, it must be the evidence
 of a witness who says he heard it ;
if it refers to a fact which could be perceived by any other sense
or in any other manner it must be the evidence of a witness
who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion
is held, it must be the evidence of the person who holds that
opinion on those grounds.

71. Special rule as to treatises by experts - The opinions, however, of experts expressed
in any treatise commonly offered for sale, and the grounds on which such opinions are
held, may be proved by the production of such treatises if the author is dead" or cannot be
found, or has become incapable of giving evidence or cannot be called as a witness without
an amount of delay or expense which the court regards as unreasonable.

72. Court-may require production of things referred to. - If oral evidence refers to the
existence or condition of any material thing other than a document. The court may, if it
thinks fit, require the production of such material thing for its inspection.

(xii) Documentary evidence

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

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

75. Document which must be attested. If the document is of a kind which is required by
law to be attested, but not otherwise, it is also necessary to call an attesting witness to
prove its due execution. But this rule is subject to the following exceptions:
(a) If there is no attesting witness alive subject to the process of the court, and capable
of giving evidence or it the document appears to have been executed in the
United Kingdom then it is sufficient to prove that the attestation of at least
one attesting witness is in his hand-writing, and that the signature of the
person executing the document is in the handwriting of that person.
(b) If the document is proved or purports to be, thirty years old. or more, and is
produced from what the court considers to be its proper custody an attesting
witness need not be called and it may be presumed without evidence that the
document was duly executed and attested.

76. Secondary evidence, when given. - Secondary evidence may be given of the
existence, condition or contents of a document in the following cases ;
(1) when the original is shown or appears to be in the possession or power of :
(a) the opposite party, or
(b) any person out of reach of, or not subject to, the process of the court or
(c) any person legally bound to produce it and when, after the due notice (see
section 66 of the Evidence Act). Such person does not produce it, any kind
of secondary evidence (see para 77 below) may be given.
(2) When the existence, etc., of original have been admitted in writing by the party
against whom, it is to be proved, the written admission is admissible as secondary
evidence.
(3) When the original has been destroyed or lost, when the party offering evidence of
its contents cannot, for any other reason not arising from his own default or
neglect produce it in reasonable time, any. kind of secondary evidence (see
para. 77 below) may be given.
(4) When the original is of such a nature as not to be easily movable, any kind of
secondary evidence (see para. 77 below) may be given,
(5) When the original is a public document or document of which a certified copy is
permitted by law to be used as evidence, in such cases a certified copy is the
only secondary evidence permissible.
(6) When the originals consist of numerous accounts or other documents which
cannot conveniently be examined in court, and the fact to be proved is the general
result of the whole collection, evidence may be given as to such general
result by any person who has examined them, and who is skilled in the
examination of such documents.

77. Secondary evidence, nature of. - Besides certified copies [see clause (5) of the
preceding paragraph] secondary evidence of a private document given at a court-martial
will generally take one of the following forms:
(1) Copies made from the original by a mechanical process which ensures accuracy
(e.g., photograph) and copies compared with such copies.
(2) Copies made from or compared with the original.
(3) Oral accounts of the contents of a document given by persons who have seen it.

78. Public documents defined. - The following are "public documents" :

(1) Those which form the Acts or records of the acts:-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers.
(2) Private documents defined.-Public records kept in Bangladesh of private
documents. All other documents are private. As mentioned above secondary
evidence can always be given of the contents of a public document. The
nature of this secondary evidence varies with the character of the document, the
most usual kind being a "certified copy'', and if the document is one provable by
a ''certified copy", this is the only secondary evidence admissible. The secondary evidence
required to prove the various kinds of public documents is dealt with in sections
76 to 78 of the Evidence Act, which should be consulted in the original, if
necessary. The public documents specified in section 78 are provable as
therein stated, all others (except certain English documents specially
provided for in section 82 of the same Act and with which court-martial are unlikely to be
concerned) are provable by "certified copies" as provided for in
sections 76 and 77.

79. Provisions as to extracts and copies of certain documents. Under the special
provisions of the Navy Ordinance extracts from or copies of official records are in certain
cases made admissible as evidence, while under the general law referred to above orders
and notifications of the Government are provable by copies purporting to be printed .by
order of that Government, and orders and regulations of Her Majesty or a Department of
Her Majesty's Government by copies purporting to be printed by the Queen's printer.

(xiii) Presumptions as to Documents

80. "Shall presume;' and "may presume". Sections 79 to 90 of the Evidence Act
provide that certain documents shall be presumed to be what they purport to be, unless and
until the contrary is proved, and that, as to certain others, courts may in their discretion,
either make a similar presumption .or require the genuineness of the document to be
proved by the party who puts it' forward. . This distinction between what court "shall
presume" and what they "may presume" should be noticed. An instance of the former class
of presumption is found in section 118 of the Navy Ordinance which provides that certain
signatures shall be presumed to be genuine until the contrary is shown. An instance of the
latter is that regarding telegraph messages contained in the Evidence Act.4 A court may
either presume that a message forwarded from a telegraph office to the addressee
corresponds with a message delivered for transmission at the office of origin, or may
require that fact to be proved by the party asserting it. This provision does not, however,
authorise the court to make any presumption as to who delivered the message for
transmission, or as to the truth of, its contents.

81. Contract, etc., rule, as to. - Where a contract, grant or other disposition of property is
reduced to the form of a document, the document itself (or secondary evidence of its
contents when admissible) is, save in certain exceptional cases, the only admissible
evidence of the matter which it contains and the written contract cannot therefore, save as
aforesaid, be varied by verbal explanations or additions.

(xiv) Burden of proof

82. Meaning of the burden. of proof. - There is a fundamental distinction between the
admissibility of evidence and its sufficiency to convey proof. If a fact is allowed to be
placed before a court as tending the prove a fact in issue, it is said to be admissible. If,
having been placed before the court, it .is of such weight as to convince the c6urt0t is said
to be sufficient. The burden of proof is concerned with this latter question of sufficiency of
evidence.
This question of sufficiency of evidence, or of what is some times called satisfactory
evidence, gives rise to three questions:
(a) What facts must be proved in order to establish the guilt of the accused (para. 83).
(b) By whom must these facts be proved (para. 84).
(c) What degree of proof is required (para. 85).
 83. The matters in the particulars of the offence must normally be proved - What facts
must be proved.-Every charge-sheet placed before a court-martial consists of two parts,
namely the statement of the offence, followed by the particulars of the act, neglect or
omission constituting the offence. Generally speaking, each and every matter alleged in the
particulars must be proved before a court can properly convict. Part of such matters
proved.- It may sometimes happen that part of the particulars alleged may have been
proved to the court's satisfaction, but not others. If such be the case, two questions arise for
the consideration of the court. The first question is whether the facts which have been
proved in themselves establish the offence with which the accused is charged. If they do,
the court are entitle to make a special finding, i.e., find the accused guilty subject to
exceptions stated in the finding, since it is the substance of the offence only which needs to
be proved.
Secondly, it may happen that the part of the particulars which has been proved does, in
fact, establish that some other offence but not the offence charged, has been committed. In
this case the court are entitled in certain cases to find the accused guilty of the offence
which has been actually proved. Thus on a charge of desertion, if the necessary intention
of remaining permanently absent from his duty is not proved the court may convict the
accused of absence without leave. Similarly on a charge of murder the court may convict
of culpable homicide not amonting to murder, if they are satisfied that the accused
unlawfully killed his victim but he did so under grave and sudden provocation.

84. Onus of proof on prosecution. - (a) By whom the fact must be proved.- The onus of
proof is dictated by two rules, namely:-
(i) every man is presumed to be innocent until he is proved to be guilty, and
(ii) the person who alleges a fact must prove it whether the allegation is couched in
affirmative or negative terms.
It is clear, having regard to these two rules, that the onus of proof in a criminal case
always rests upon the prosecution. It is not for the accused person to proof his innocence,
but for the prosecution to prove his guilt. Subject to what has been said in paragraph 83, it
is the duty of the prosecution to prove each and every ingredient in the crime with which
the accused is charged.
The task, therefore, imposed on the prosecution is a heavy one, and in adducing proof the
prosecution must necessarily put forward evidence. The court may however, draw
reasonable inferences from
the facts proved and it is not ,necessary to prove every allegation by direct evidence.
(b) Presumption arising out of evidence off act. - Thus there is a presumption, until the
contrary is shown, that every man intends the natural and probable consequences of his
acts. This presumption will often be sufficient to furnish the prima facie proof of a specific
intent which the prosecution is required to prove. Thus if A is charged with murdering B, it
is not sufficient for the. prosecution to prove that A killed B; it must further prove that A
intended to kill B without any lawful justification or excuse. If, however, the prosecution
prove that A put a lethal dose of poison into a glass of water and handed it to B to drink,
and that B drank it with fatal results, such evidence would in itself be sufficient, in the
absence of a reasonable explanation by A, to prove that A intended to kill B, since B's
death was the natural and probable consequence of A’s act. Again if the prosecution prove
on a charge of stealing, or alternatively of receiving, that the goods were stolen and that
shortly afterwards A was found in possession of them, the court may in the absence of a
reasonable explanation by A convict him either of stealing or of receiving the goods.
Similarly a court may presume that all things have been done in the due and usual manner.
Thus if the prosecution prove that, letter was despatched by prepaid post to A at his last
known address and was not returned through the dead letter office or otherwise, this would
be sufficient to prove, in the absence of any denial by A, that A received it.
(c) "Shifting" of the burden.-It is often said in these cases, where the prosecution have
proved a prima facie case, that the burden of proof shifts to the accused to prove his
innocence, Such a statement is, however, very misleading. The burden of proving his
innocence never passes to the accused, except in the sense that where the prosecution has
put forward sufficient evidence to establish the offence, the accused is obliged to meet it
by way of defence. Further more where the evidence for the prosecution is aided by
presumptions of fact such as those described above, there is no question of the accused
disproving such presumptions. It is sufficient if he raises a reasonable doubt in the mind of
the court as to whether the presumption arises in that particular case. Thus if A, in the
illustration of murder given above, stated that be thought the poison to be harmless
sedative, and the court were left in reasonable doubt as to whether in fact A knew it to be a
poison, the prosecution would have failed to prove the necessary intent.

(d) The doctrine of recent possession. - Similarly, if A is accused of stealing a purse, and
the prosecution prove that immediately after its loss it was found in A's possession, there is
a strong presumption that he stole it. As a matter of common sense practically no court-
martial would acquit him in the absence of a reasonable explanation by him as to how it
came into his possession. But the onus of proving the guilt of the accused always rests
upon the prosecution, and, consequently, if he gives an explanation as to how it came into
his possession which might reasonably be true, the court should acquit him if they are in
any doubt as to whether his explanation is a true or false one.
According to section 195 of the Evidence Act when any person is accused of an offence,
the burden of proving the existence of facts bringing the case within any of the "general
exceptions" of the Penal Code or any special exception or proviso applicable to the
particular offence is on the accused. For instance A is accused of murdering B. The burden
of proving that A killed B is on the prosecution. But A pleads grave and sudden
provocation the burden of proving this provocation is on A. There is, however a subtle but
fundamental. distinction between the degree of certainty required in cases where the
burden of proving a fact is on the prosecution and those where the burden of proof is on
the accused. When the burden is on the prosecution, the case must be proved "beyond a
reasonable doubt"; but when The burden of an issue is upon the accused he is not, in
general, called on to prove it beyond a reasonable doubt. or in default to incur a verdict of
guilty; it is sufficient if he succeeds in proving a prima facie case, for then the burden of
such issue is shifted to the prosecution, which has still to discharge its original and major
onus that never shifts; i.e., that of establishing, on the whole case guilt beyond a reasonable
doubt. If the court is satisfied from the statement of the accused and the evidence adduced
by him, or from circumstances appearing from the prosecution evidence, that the existence
of circumstances bringing the case within the exception or exceptions pleased by the
accused has been proved, or upon a review of all the evidence is left in reasonable doubt
whether such circumstances do exist or not, the accused, in the case of a general exception,
is entitled to be acquitted, and; in. the case of a special exception, can be convicted only of
the minor offence. The test is not whether the accused has proved beyond all reasonable
doubt that he comes within any exception, but whether in setting up his defence he has
established a reasonable doubt in the case for the prosecution and has thereby earned his
right of acquittal.
(e) Matters peculiarly within the knowledge of the accused. - There are, however, some
cases in which the law takes notice that facts may be peculiarly within the knowledge of
the accused. The reason for this is that it is impossible for the prosecution to produce
evidence or facts which only the accused knows. Whilst the prosecution is under a duty to
prove its cases, it is not under a duty to prove what in the existing circumstances it is
impossible to prove. Thus, if A is charged with traveling on a railway without a ticket, the
burden of proving that he had a ticket is on him.
Similarly, in certain service offences, the court are entitled to take into consideration the
fact that an allegation made by the Prosecution is peculiarly within the, knowledge of the
accused e.g., in a charge alleging that the accused improperly left his place of duty. upon
evidence being adduced by the prosecution that the accused left his place of duty, the court
would be entitled to infer, in the absence of a reasonable explanation by the accused, that
he did so improperly.

85. Degree of proof is required. - What degree of proof is required.- In discharging ,the
burden of proof the prosecution has a two-fold task. It must place before the court such
evidence as will, in the absence of a reasonable explanation by the accused, be sufficient to
established that the offence has in fact been committed by him; and it must present
evidence of such strength as to prevail over any explanation which the accused may give
in his defence.
(b) Meaning of pt1ma facie case.-The prosecution must, in "the first place, establish a
prima facie case. If, at the end of the case for the prosecution, facts have not been proved
which establish that the accused committed the offence, or if at that stage, the court would
not be prepared to convict the accused because of the unsatisfactory nature of the evidence
produced, they should stop the case without calling upon the defence. It must, however, be
remembered that at this stage the court are not deliberating on their" finding and, unless
they are satisfied that they cannot find the accused guilty on the evidence given by the
prosecution even if the accused offered no explanation, they should allow the case to
proceed.

(c) The court must feel sure before convicting.- In determining whether, upon a review of
the evidence as a whole, the onus of proof has been discharged by the prosecution, the
court must remember that problems of human conduct are in general incapable of solution
with demonstrable accuracy as in the physical sciences. What they should look for is the
moral certainty of guilt. They must not convict unless they are satisfied beyond reasonable
doubt by the evidence given by the prosecution that the offence has been committed by the
accused; it is their duty to regard the evidence as a whole, and see if it satisfies them, so
that they can feel sure when they make their finding that the accused is guilty.

(xv) Witnesses
86. Competency of witnesses - Under Bangladesh law all persons, other than the accused'
or persons tried jointly with him are competent witnesses unless the court considers that
they are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by reasons of:-
(1) tender years.
(2) extreme old age.
(3) disease of mind or body, or
(4) any other cause of the same kind.

87. Comparison, with English law.-The English law adds to these disqualifications or
from knowing that he ought to speak the truth." Under Bangladesh law the courts have not
to enter into enquiries as to the religious belief, or as to the knowledge of the consequences
of giving false evidence, of a witness whose age, appearance or circumstances suggest the
probability of a want of moral perception. The court has only to consider whether he can
understand a question and give a rational answer to it. Other considerations do not affect
the competency, though they may often affect thecred1bility of a witness. The English law
further disqualified both the accused and his wife, from giving evidence except for the
defence subject in the case of the wife to certain statutory exceptions. The Bangladesh law,
as, already mentioned, absolutely disqualifies the accused from giving evidence. It
however makes his wife (subject to the privilege mentioned in para.98 below) a competent
witness both for the prosecution and defence.

88. Accused cannot give evidence, but may make a statement.-Though the accused
cannot give evidence, he is permitted to make an unsworn statement in his defence, to
which a greater or less degree of credence may be afforded, and which is one of the
"matters before it" which the court is bound to consider when arriving at a decision as to
whether the charge is or is not "proved".

89. Persons jointly tried cannot give evidence.- Persons jointly tried are incompetent to
testify against each other. if, therefore, the prosecution find it necessary to call one
participator in a crime as a witness against the others, the proper course is not to arraign
him with them, or (if he has been so arraigned) to offer no evidence and take a verdict of
acquittal.
If an accused thinks that the evidence of a person whom it is proposed to try with him is
material to his defence, he should claim a separate trial.

90. Evidence of accomplice.-The evidence of an accomplice is admissible against his

principal, and vice versa, unless they are tried together, but the evidence of an accomplice
should always be received with great caution. No particular number of witnesses is legally
necessary to prove any fact. and the uncorroborated evidence even of an accomplice is,
therefore, in strict law sufficient, if the court consider him credible, but a court-martial
should very carefully consider the danger of convicting the accused on the uncorroborated
evidence of an accomplice; and, if there is a judge advocate, it is his duty to warn the court
of the danger, though at the same time pointing out that it is, within their legal province to
convict upon it if they choose. The corroboration required is independent testimony which
confirm in some material particular not only the evidence that the crime has been
committed but also that the accused committed it.
Although an accomplice is a competent witness it must, however, be remembered that
section of the Oaths Act makes it illegal to administer an oath or affirmation to an accused
person, that is a person who suspected to be an offender. If, therefore, in any case two or
more persons are suspected of complicity in an offence, and it is found necessary to call
one of these as a witness for, the prosecution against the other or others charged in
connection with the offence, one of two courses must be taken Either:-
(i) Proceedings against him must be abandoned and any charge therein already
preferred against him dismissed; or
(ii) Steps must be taken to ensure that the case against him is disposed of summarily
or tried by court- martial before the trial of persons concerned against whom
he is to give evidence; and that he is only tendered as a witness when he
has already been acquitted or convicted.

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

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

the accused, and might, as such, be sworn or affirmed to give evidence at any stage of the
proceedings; but the Navy Rules direct that a witness for the prosecution shall not sit on a
court-martial for the trial of any person against whom he is a witness.

(xvi) Privilege of Witnesses

93. Incriminating questions.-It by no means follows that because a person is competent
to give evidence, he is compelled to answer every question he may be asked when giving
evidence. Under English law, a witness cannot be compelled to answer a question if the
answers would, in the opinion of the court, incriminate him, and though in Bangladesh
law, there is no such absolute privilege still a witness, on such a question being put to him,
is entitled to ask to be excused from answering it; and if after he has asked to be excused,
the court compel him to answer (as they are entitled to do) his answer cannot be proved
against him at any criminal proceedings; except a prosecution for giving false evidence by
such answer.

94. Official matters.-Another class of privilege is based on considerations of public

policy. No one is permitted to give evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the head of the department
concerned. No public officer can be compelled to disclose communications made to him in
official confidence, if he considers such disclosure injurious to the public interests, and in
particular no magistrate or police officer can be compelled to state whence he got any
information as to the commission of any offence.

95. Confidential reports. - On this principle, a confidential report, or letter, or official

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

96. Boards of inquiry. - So also, the proceedings of a board of inquiry cannot be called
for by court-martial, nor witnesses examined as to their contents; nor is any confession or
statement made at a board of inquiry admissible against an officer or sailor before a court-
martial. 1 The only exception to this rule is in the case of a court-martial for giving false
evidence before the board of inquiry.

97. Privilege which cannot be waived. - The modified privilege referred to in para.93 is
the privilege of the witness, and therefore he may waive it, and answer (without being
compelled to do so) if he chooses. but the privilege referred to in the following paragraphs
is for the protection of other parties and cannot be waived except with their consent.
 98. Communication during marriage. - A husband must not be compelled to disclose
any communication made to him by his wife during the marriage; and a wife must not be
compelled to disclose any communication made to her by her husband during the marriage.

99. Legal adviser-Communications to.-A legal adviser is not permitted, whether during
or after the termination of his employment as such, unless with his client's express consent.
to disclose any communication, oral or documentary, made to him as such legal adviser, by
or on behalf of his client, during, in the course of and for the purpose of his employment,
or to disclose any advice given by him to his client during, in the course of, and for the
purpose of such employment. But this protection does not extend to:-
(1) any such communication if made in furtherance of any illegal purpose:
(2) any fact observed by a legal adviser in the course of his employment as such,
showing that any crime or fraud has been committed since the
commencement of his employment, whether his attention was directed to
such fact by or on behalf of his client or not; or
(3) any fact with which the legal adviser became acquainted otherwise than in his
character as such.

The expression "legal adviser" includes the clerks of legal advisers and interpreters
between them and their clients, and the person representing or assisting the accused during
trial before a court-martial.

100. Procedure when privilege claimed.- The question, whether answered or not, should
be entered on the proceedings. When a witness claims the privilege of not answering, it is
(except as mentioned in para.94 above) for the court to decide whether the question is
within any of the exceptions. Court-martial should in practice interpose by informing a
witness, at the time when a question is put to him, that he is not bound to answer. Any
such interposition, and any claim of privilege by the witness, and the fact whether the
witness is required to answer or not, should be noted on the proceedings.

(xvii) Examination of Witnesses

101. Points requiring attention of court. - It will be the duty of the court in every case to
see that the rules of evidence are strictly conformed to. The following points will require
special attention in relation to any evidence that may be tendered :-
(a) That it relates to a "fact in issue" or "relevant fact."
(b) That it is not within the rule rejecting hearsay evidence.
(c) That (except in the case of experts) it is not a mere expression of opinion.
(d) That, if it is a confession or admission, it is legally admissible.
(e) That, if it is a document, it is legally admissible and properly put in evidence.
(f) That no document or other thing is used for the purposes of the trial which has
not been properly put in.
(g) That any witnesses called are legally competent to give evidence.
(h) That any document with which a witness proposes to refresh his memory is
legally admissible for the purpose.
(i) That the examination of witnesses is fairly and properly conducted.

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

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

104. Test of what are leading questions. Care must, however, be taken in enforcing this
rule not to exclude questions which do not really suggest an answer, but merely direct the
attention of the witness to the subject as to which he is questioned. It is often, indeed,
extremely difficult in practice to determine whether or not a question is in a leading form,
and in all such cases the real test should be whether or not the examination is being
conducted fairly and with the object of eliciting the honest belief of the witness. The
following may be taken as examples of fair and unfair examination of a witness suppose a
man to be charged with the murder of another by stabbing the body having been found at
the upper end of a certain street, and a witness to be called to speak to the circumstances in
which the blow was struck. There would be no objection to asking the witness:-
If he remembered the 12th August, and
If he was in North Street about noon on that day.
These questions, though in a leading form, are merely introductory. If the defence of the
accused was that he had struck the blow, but that he had done in self-defence there would
be no objection to going a little further and asking:
Whether he saw the deceased and the accused there.
But from this point all leading questions should be avoided and the examination should be
continued in some such form as this:-
In what part of the street were the accused and deceased when you first saw them?
How far were you from the accused and the deceased?
Tell us in your own words exactly what passed.
To ask, instead of the first question-
"Were they at the upper end of the street when you first saw them "would be highly
improper, as it might be very important in considering whether or not there had been a
long quarrel or scuffle, to know whether they had moved far from the place where the
witness first saw them to the place where the body was found. It would obviously be still
more improper to ask:-
"Did you see the accused go up stealthily behind the deceased and strike him a blow with
a knife", or any question of that character.
If, on the other hand, the defence set up were an alibi it would be improper to ask directly
after the introductory questions:-
Whether the witness saw the deceased and the accused, there?
The questions in that event should rather be
Whether he saw any-one there?
Whether he could identify them?
Whether he can identify anyone in court as having been present; though, finally, if an
answer could not be got in any other way, the attention of the witness might be called to
the accused, and he might be distinctly asked?
Whether he saw that person there?
But this should not be done until the witness had said that he saw some persons there, and
that he would know them again.

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

106. Hostile witness.-The court may, in its discretion, permit the person who calls a
witness to put any questions to him which the adverse party might put in cross-
examination. This is called the treating of a witness as "hostile". If a person calls a witness
and the witness appears to be directly hostile to him, or interested on the other side, or
unwilling to give evidence, the reason of the rule forbidding leading questions fails, and
the court may allow the person calling the witness not only to ask him leading questions,
but to cross-examine him, and to treat him in every respect as though he was a witness
called by the other side. In such circumstances he can therefore be asked question tending
to show his bad character, and his credit may be impeached in the same way as that of a
witness called by the adverse party; neither of these things can be done under English law.

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

opposite party cross- examines the witness. In cross-examination leading questions may be
put and also questions, otherwise irrelevant, which tend:-
(1) to test his veracity,
(2) to discover who he is and what is his position in 1ife, or (3) to shake his credit by
injuring his character.

108. A witness may be cross-examined as to previous statement made by him in writing,

or reduced to writing, without such writing being shown to him, but if it is intended to
contradict him by the writing his attention must be called to it before it can be proved.2 It is
often important that when a witness is under cross-examination as to his previous
statements, the fact of their having been reduced to writing should be concealed from him.
It is only reasonable, however, that when he has given his answer, he should be shown the
document and have the chance of correcting himself. The summary of evidence may be
used to prove any statement which the witness made and which it is proposed to
contradict, and evidence may be called to prove that the evidence of a witness, though
consistent with the summary, is not consistent with the evidence given by him .at the
investigation before the commanding officer.

109. Question which assume that facts have been proved which have not been proved, or
that answers have been given which in fact have not been given, are improper, and should
not be allowed even in cross-examination. Nor should a witness be pressed in cross-
examination as to any facts, which if admitted, would not affect the matter at issue or his
credibility. If the person cross-examining intends to adduce evidence contradicting the
evidence given by the witness, he should put the witness in cross-examination the
substance of the evidence which he proposes to adduce, in order to give him an
opportunity of retracting or explaining, what he has said.

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

111. Exclusion of evidence to contradict answers to questions testing veracity etc. - It

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

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

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

114. Corroboration of witnesses. - In order to corroborate the testimony of a witness as

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

115. Former statements by witnesses.- In order to corroborate the testimony of a

witness, any former statements made by such witness relating to the same fact:-
(i) to anyone, at or about the time when the fact tookplace, or
(ii) at any time, before an authority legally competent to investigate the fact;

may be proved.The above conditions are to some extent a safeguard against fictitious
statements designedly made to support subsequent evidence. but it is obvious that the
corroborative value of such statement depends on the circumstances of each case, and that
they may easily be entirely valueless. The mere fact of a man having, on a previous
occasion, made the same assertion often adds but little to the chances of its truthfulness,
and courts should distinguish such testimony from really corroborative evidence.

116. Re-examination. - At the conclusion of the cross-examination of a witness the

person who called him- may, if he pleases, re-examine .him; but the re-examination must
be directed exclusively to the explanation of matters referred to in cross-examination. If
new matter is, by permission of the court, introduced in re-examination the other side may
further cross-examine upon it.

117. Questions by courts. - After the re-examination of a witness is closed; the court
often ask him questions to clear up some point which they regard as material.
Frequently, too, the court recall a witness, or allow him, to be recalled for further
examination; and sometimes the even call and examine a witness who has not been called
by either party. In any of these cases the? party affected by the answers should be allowed
to suggest further questions, or to cross-examine (as the case may require).
If a witness is so called or recalled after the case for the accused is closed, the accused
should also be allowed to give further evidence in rebuttal, and to comment upon the fresh
evidence if he has already made his address.
 118. Refreshing memory. - A witness may not read his evidence or refer to notes of
evidence already given by him; but he may while under examination refresh his memory
by referring to any writing made by him at the time of the transaction concerning which he
is questioned, or so soon afterwards that the court consider it likely that the transaction was
at that time fresh in his memory. He may also refer to any such writing made by another
person, but read by himself within the time aforesaid, if, when he read it, he knew it to be
correct. Whenever a witness may refresh his memory by reference to any document, he
may, if the court is satisfied that there is sufficient reason for the non-production of the
original be permitted to refer to a copy of such document. An expert may also refresh his
memory by reference to professional treaties.3 Any writing referred to under the provisions
of this paragraph must be produced and shown to the adverse party if he requires it, and
that party may, if he pleases, cross-examine the witness upon it.

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

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

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

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

(i) Introductory

1. Definition of civil offence, and jurisdiction of court-martial over civil offences.- A

"civil offence", for the purposes of the Navy Ordinance, means an offence which is triable
by a criminal court.

Naval tribunals are prohibited from trying cases of murder or culpable homicide of a
person not subject to military, naval or air force law or rape, in relation to such a person
unless the offence is committed on active service, or at any place outside Bangladesh, or at
any place specified by the Government. by notification in this behalf.

Subject to the above exceptions, a naval tribunal can try all civil offences of a person
subject to the Ordinance wherever committed.

2. Concurrent jurisdiction.-A criminal court and a naval tribunal may each have
jurisdiction in respect of the same offence. Conflicts of jurisdiction are provided for by
section 101 of the Ordinance, which gives the naval authorities the right of deciding by
which court the alleged offender is to be tried, subject, however, to the reservation that,
when a criminal court considers that proceedings ought to be instituted before itself it may
by written notice require the prescribed naval authority to deliver over the offender or to
postpone proceedings pending a reference to the Government.

It should be noted that the civil offence contained in Chapter VII of the Penal Code
(Offences relating to the Army, Navy and Air Force), if committed by persons subject to
the Ordinance are not triable by the civil power and are therefore exclusively triable by a
naval tribunal under the appropriate provisions of the Navy Ordinance.

3. Principles on which jurisdiction should be exercised. - But though a wide power of

trial by court-martial is given, it is not as a rule expedient to exercise the power
universally.

Where ships are stationed at places having no competent criminal (civil) courts, it is
necessary to try all offences committed by persons subject to the Ordinance by a naval
tribunal.

But in Bangladesh and at places outside Bangladesh where a competent civil court has
been established it is, as a general rule, desirable to try by a civil court a civil offence
committed by a person subject to the Ordinance if the .offence is one which relates to the
property or person of a civilian or is committed in conjunction with a civilian, or if the civil
authorities intimate a desire to bring the case before a civil court.
 The general rule is, however, subject to qualifications. The line dividing the naval offence
from the civil offence may be narrow. The offence may have been committed on board a
ship or within a naval establishment. The offender may be one of a body of seamen about
to proceed on active service. There may be reasons making the prompt infliction of
punishment expedient. In any such case it may be desirable to try the offence by naval
tribunal.

There may be also considerations arising out of the importance of maintaining discipline.
If offences of a particular kind, or offences generally, are rife in. a ship or a naval
establishment it may be necessary, for the sake of discipline, to try every offence, whether
civil or service, by naval tribunal so that the punishment may be prompt and in accordance
with the requirements of discipline.

The heinousness of an offence is also an element for consideration. A trifling offence,

such as would, if tried by a civil court, be properly punishable by a small fine, may well be
punished by the service tribunal immediately, especially if the case is one in which
stoppages may be ordered to make good damage occasioned by the offence. On the other
hand, certain civil offences (e. g., complicated frauds)' are not suitable for trial by naval
tribunal and had better be relegated to the civil court, as should also any case where
intricate questions of law are likely to arise.

4. The Penal Code. - Most of the civil offences as defined in para.1 above and triable by
naval tribunals are included in the Penal Code, an Act which codifies the criminal law of
Bangladesh but a few, e.g., the offences against the Official Secrets Act, are created by
special statutes. It should be noted that words and expressions defined in the Penal Code
have, when used in the Navy Ordinance (unless defined in the Ordinance), the meanings,
attributed to them by that Code. Thus, wherever "theft", "assault", or "house-breaking" are
mentioned in the Ordinance the offence so defined in the Penal Code is intended. Also, all
the penal sections of the Ordinance are subject to the "general exceptions" of the Penal
Code.

A table of offences against the ordinary law, (penal Code) with the punishment assigned to
each, is appended to this chapter. The description of the civil offences in the first column
of this table 'should be followed when framing charges under S. 78 of the Navy Ordinance.

5. Scheme of the chapter.-The object of this chapter is to give some description of the
civil offences which may come before court-martial. The list is not exhaustive, but the
more common offences have been treated in greater detail than those which experience
shows rarely, if ever to come within the cognisance of court-martial.

Before proceeding to a description of the various offences it will be convenient to discuss,

first, the punishments which may be awarded, .and, secondly, the general principles as to
criminal responsibility, principles, it must be remembered, which are applicable to the
naval not less than to civil offences.

(ii) Punishments
 6. Punishment. - Section 78 of the Navy Ordinance specifies the punishments which may
be awarded for civil offences charged under that section. If the offence is punishable under
the law of Bangladesh with death or transportation a court-martial is empowered to award
any punishment (other than transportation or whipping) assigned for the offence by that
law, and any such less punishment as is mentioned in section 80 of the Ordinance,
provided that rigorous imprisonment for a term not exceeding the term of transportation
may be substituted where the punishment assigned by the civil law is transportation. For
this purpose rigorous imprisonment for fourteen years is to be deemed to be the equivalent
of transportation for life.

With regard to every other civil offence charged under S.78 the effect of the section is to
empower court-martial to award imprisonment up to 2 years or any less punishment
mentioned in the Ordinance or the punishment (other than whipping) which under the civil
law may be awarded for the offence.

Courts are, of course subject to the limitation placed on its powers of punishment, e.g., a
district court-martial cannot award higher punishment than two years' rigorous
imprisonment.

7. In the table at the end of this chapter will be found the punishment which a civil court
can award for each offence. A comparison of the various punishments will be a guide to
the court as to the heinousness of each offence in the eye of the law. It must be
remembered that, each punishment specified in the table is a maximum and that, except in
the case of offences for which an obligatory punishment is assigned (e:g., death or
transportation for life for murder), any less punishment, if authorised, may be awarded by a
court-martial for a civil offence, even if such punishment is not one which a civil court
could have awarded, e.g., dismissal from the service. In awarding punishment for a civil
offence a court-martial should be guided by exactly the same principles as those which
guide them in punishing service offences.

(iii) Responsibility for Crime

8. Every one responsible for natural consequences of his actions. -The general rule is
that a person is responsible for the natural consequences of his acts If, therefore, a person's
acts and the natural consequences which follow them bring within the penal provisions of
the Penal Code, he is criminally responsible under that code unless his case falls within one
of the "general exceptions"2 or any special exception applicable to the particular offence.
Thus, a person who kills another under circumstances which amount to murder as defined
in the codes is liable to the punishment assigned to that offence; but if he killed the other
while himself in such a state of involuntary intoxication as would bring him within the
terms of S.85 of the Penal Code, or in the lawful exercise of his right of private defence
(general exceptions), he is excused, while if he did it under grave and sudden provocation
(a special exception) his offence is reduced to culpable homicide.
 9. Illegal omissions. - Words in the code which refer to acts also extend to illegal
omissions, that is, omissions to do what a person is legally bound to do. The omission to do
anything which one is not bound by law to do is not an offence; thus if a man sees another
drowning and is able to save him by holding out his hand, but omits to do so, even in the
hope that the other may be drowned, still he is not criminally responsible.

On the other hand, where the law imposes upon a person the duty of performing some
particular act, he is held responsible if he omits to do so. Every person who has charge of
another, e.g., a child, a person of, unsound mind, an invalid, or a prisoner, is bound to
provide him with necessaries if he is so helpless as to be unable to provide himself; and if
death results from a neglect of such duty, the. person in charge will be responsible unless
he can show some good excuse.

So, in the case of an animal known to be dangerous, the person in charge is bound to -take
such precautions as will safeguard the public from danger.

10. Omission to perform duty. - Similarly, if a person undertakes to do any act the
omission of which may endanger human life (as for instance, warning persons from a range
whilst firing is going on), and without lawful excuse omits to discharge that duty, he is
responsible for the consequences. Again, if a person undertakes to administer surgical or
medical treatment, or to do any other act which may be dangerous to human life, he is
responsible if death results from a want of reasonable care and skill on his part. For
instance if a sailor was to undertake to cut off the trigger finger of another sailor and
mortification set in, he would be responsible for the consequences of his act.

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

12. Abetting an offence. - Thus the Penal Code provides that when a criminal act is done
by several persons, in furtherance of the common intention of all, each is liable for that act
as if he had done it alone. If, therefore, two or three men go out to commit housebreaking
and one waits at the comer of the street to keep watch while the others break into the
house, the watcher will be guilty of housebreaking equally with the others, though he never
goes near the house. Further when an offence is committed by means of several acts,
whoever intentionally co-operates by doing any one of those acts, commits that offence. If,
therefore, in pursuance of a common intention to commit theft, A steals goods in a house
and hands them to B who is waiting outside, and B then carries them away, both are guilty
of theft. On the other hand, if the offence Charged involves some special intent, it must be
shown that the abettor was cognisant of the intention of the person whom he assisted; thus,
since B in the last example knew of A's intention to steal, and waited outside the house to
assist him, his offence was theft, but if he had been unaware of the intention till the goods
were handed to him his offence would not have been theft but receiving stolen property.
 13. Common intent. - If several persons combine together for an unlawful purpose or for
a lawful purpose to be effected by unlawful means, each is responsible for every offence
committed by any one of them in furtherance of that purpose, but not for an offence
committed by another member of the party which is unconnected with the common
purpose unless he personally instigates or assists in its commission. Thus, if some of the
party of house-breakers in the example given above are armed with revolvers, and the
others all know it, thus showing a common intention not only to break into the house but to
carry out their criminal object there in spite of all resistance, and the owner is killed in
defending his property, all the party, including even the watchers outside, are guilty of
murder. But if two persons go put to commit theft and one, unknown to the other, puts a
pistol in his pocket and shoots a man, the other is not responsible.

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

15. Abetment. - A person may make himself responsible for the crime of another by
instigating, conspiring with, or intentionally aiding the actual criminal in one of the ways
described in Ss. 107 and 108 of the Code. In such cases he cannot (except as already
mentioned) be charged with the actual offence committed by the other, and must be
charged with "abetting" that offence. The abetment of an offence is punishable under S.
109 of the Penal Code and under S. 77 of the Navy Ordinance.

16. Innocent Agent. - It does not always follow that the person who commits the offence
which is abetted is himself criminally responsible. Thus, if A instigates B (a child under
seven years of age or a person in a state of involuntary intoxication2)to murder C, and B
does so, A has abetted the murder of C, but B has committed no offence. Similarly, if sailor
knowing that a pair of boots does not belong to him, induces a comrade to steal them by
representing that they are his property and not the property of the actual possessor, the
former is guilty of abetting theft though the latter has committed no offence at all.

17. Harbouring offenders - A person may incur criminal responsibility even after an
offence has been committed by helping the offender to escape from justice, or by
destroying the evidence of his guilt. This form of responsibility is provided for in the
sections of the Code which deal with harbouring and screening an offender. Person who
offend against these section do not, however, make themselves fully responsible for the
original crime, as in the cases referred to in para.14 above, and cannot be so charged. The
wife or husband of an offender is exempted from any penalty for harbouring that offender;
an exception to this rules is, however, the harbouring of a State prisoner or a prisoner of
war who has escaped.
 18. Attempt to commit offence. - A person who attempts to commit an offence or to
cause such an offence to be committed, and in such attempt does any act towards the
commission of the offence, is criminally responsible even though the attempt is
unsuccessful.

A mere intention to commit an offence unaccompanied by acts will not amount to an

actual "attempt” nor will acts themselves if they are merely preparatory to the commission
of the offence. For instance, if A, intending to murder B by poison, purchases poison and
mixes it with food which remains in A's keeping, the mere mixing with food is not an
attempt to murder B by poison. Some act must be done which is more than an intention or
preparation, and which is real step towards the commission of the offence; thus, if A had
placed the food on B's table, or delivered it to B's servants to place it on B's table, he would
have been guilty of an attempt to murder.

It is no defence to a charge of attempting to commit a crime that it was legally or

physically impossible for the offender to have committed the full offence.

Where a person is charged with committing an offence but the evidence shows merely an
attempt to commit that offence a court-martial may convict him of the attempt to commit
the offence charged.

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

20. Murder.-The kinds of intention or knowledge which will make culpable homicide
amount to murder are set out in S. 300 of the Penal Code. If these are compared with
para.19 above, it will be seen that, subject to certain exceptions which are considered in
para.21, culpable homicide of the first kind is always murder: that of the second kind is
murder only if the offender intends to cause such bodily injury either :-
(a) as he knows to be likely to cause the death of the person to whom it is caused, or
(b) as is sufficient in the ordinary course, of nature to Cause Death and that of the
third kind is murder only if the offender knows that his act is so imminently
dangerous that it must in al1 probability cause either death or such bodily
injury as is likely to cause death. Thus, where a person hurt another, who
was suffering from disease of the spleen, intentionally, but without the intention of
causing death, or causing such bodily injury as, was likely to cause death, or the
knowledge that he' was likely by his act to cause death, and by his act caused the
death of the other, it was held that the offence committed was that of
voluntarily causing hurt.

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

"culpable homicide not amounting to murder" in certain circumstances which are specified
in the exceptions to S. 300 of the Penal Code. Briefly these are:-
(1) Grave and sudden provocation.
(2) Right of private defence exceeded.
(3) Powers of public servant exceeded'.
(4) Sudden fight.
(5) Consent by the person killed.

The full text of these exceptions will be found in Penal Code, which should be consulted,
but the first is that most frequently met with and demands more detailed notice.

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

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

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

25. Borden of proof. - Under Bangladesh law the killing being established, the burden of
showing such intention or knowledge as makes the crime murder or culpable homicide is
still upon the prosecution. If, however, facts raising a presumption of such intention or
knowledge (e.g., the nature of the weapon used) are shown to exist, the burden of
disproving the presumption is on the accused. The killing and the requisite intention or
knowledge being established, the burden is on the accused of showing that his case falls
within any general or special exception, as for instance, by showing that he acted under a
bona fide mistake of fact and the fact if true would have excused him, or that he acted on
grave and sudden provocation. However, see Chapter V, para.84(c).

26. Penalty for murder. - The penalty for murder is death or transportation for life. A
civil court can, at its discretion, award either penalty, but must sentence the offender to one
or the other. When a person already under sentence of transportation for life is convicted of
murder the death sentence is obligatory. As regards powers of a court-martial, see
paragraph 6 above.

27. Causing death by negligence. - Whoever causes the death of any person by doing any
rash or negligent act not amounting to culpable homicide may be punished with
imprisonment extending to two years, and with fine.

A person is criminally responsible for causing death, if he fails to take proper precautions
when doing anything which is in its nature dangerous, even though he had not the least
intention of bringing about the consequences of his act. The offence is equivalent to what
under English law is called manslaughter by negligence. It must be shown in order to
justify a conviction that the negligence from which death resulted was so gross and
culpable and showed such disregard for the life and safety of others as to amount to a crime
and to conduct deserving punishment.

Thus, if a sailor fires his rifle without taking the precautions proper under the particular
circumstances and the bullet kills a man, the sailor will be criminally responsible for his
death. Again, if a person points a gun at another in sport and pulls the trigger without
having good grounds for believing, or without having taken any proper precautions to
ascertain, that the gun was unloaded, he will be responsible if death results, as the accident
might clearly have been prevented if he had not been culpably negligent.

Other examples of this offence are causing death by rash and negligent driving; and by
negligently mixing a live round with blank cartridges.

(v) Hurt and Grievous Hurt

28. "Hurt" and "grievous hurt" defined. - Whoever, causes bodily pain, disease, or
infirmity to any person is said to cause "hurt", and if that he is one of the graver kinds
(specified in S.320 of the Penal Code) he is said to cause "grievous hurt".Whoever does an
act with the intention of causing hurt to any one, or knowing that he is likely to cause hurt
to anyone, and does thereby cause hurt to the same or any other person, is said "voluntarily
to cause hurt". If the hurt intended or known to be likely to be caused is grievous hurt and
the hurt actually caused is grievous hurt (either of the same or a different kind) he is said
"voluntarily to cause grievous hurt".

Voluntarily to cause hurt or grievous hurt to anyone is an offence which varies in its
gravity according to the instrument used, the provocation given, the status of the person
hurt, and the object of the offender. The table appended to this chapter shows the different
descriptions of hurt and grievous hurt arid the punishment awardable in each case.

(vi) Criminal Force and Assault

29. "Force" defined. - The sections of the Penal Code which deal with these crimes are
chiefly of interest to officers as defining the offences described in section 39 of the Navy
Ordinance. The definition of force in the Penal Code3 is of a highly metaphysical nature
but, for ordinary purposes, their is little difficulty in understanding what is meant by the
application of force to a person, or through a thing to a person, and whoever intentionally
uses force to a person without his; consent, in order to commit an offence, or with an
intention to cause injury, fear or annoyance, is said to use "criminal force".

"Assault". - Whoever makes any gesture or preparation:-

(1) intending to cause anyone to apprehend that the person making the gesture, etc., is
about to use criminal force to him, or
(2) knowing it to be likely that such gesture, etc. will cause such an apprehension,
is said to commit an "assault". Mere words cannot amount to an assault, but words
accompanied by gestures or preparations may give the latter such a meaning as to amount
to an assault.

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

(vii) Rape
31. Penetration. - Rape is defined in S. 375 of the Penal Code. Penetration is sufficient to
constitute such sexual intercourse as is there referred to; it must therefore be proved that
there was actual penetration of the female organ by some part of the male organ. The
slightest penetration will be sufficient; it is not necessary to prove that there was such
penetration as would be sufficient to rupture the hymen. Whether there was an emission of
semen or not is immaterial.

It is not an excuse that the woman was a common prostitute or the concubine of the
ravisher, if the offence was committed by force or against her will; though proof of such
facts is admissible, and is, of course, important in considering whether or not she is likely
to have consented.
 32. Consent when valid,- A consideration of S.375 of the Penal Code will show that the
offence consists in sexual intercourse with a woman against her will, without her consent,
or even with her consent when such consent has been obtained by putting her in fear of
death or hurt, or by pretending to be her husband, or with or without her consent when she
is under fourteen years of age; further, consent is not valid under the Penal Code when
given by a person who from unsoundness of mind, or intoxication, is unable to understand
the nature and consequence of that to which she gives consent. Sexual intercourse with a
woman who has, by drugs or liquor, been reduced to such a condition as is indicated above
will therefore constitute rape.

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

34. Attempted rape. - When the offence is incomplete for want of penetration the
accused may be convicted of an attempt to commit rape, provided that the court is satisfied
that it was his intention to gratify his passion at all events and notwithstanding any
resistance. An indecent assault with intent to have illicit intercourse is not sufficient, in
itself, to constitute such an attempt.

(viii) Theft and Cognate Offences

35. Property which can be subject to theft. - Theft is defined in S.378 of the Penal
Code. It can only be committed in respect of movable property which is in the possession
of someone.

36. Movable property. - All corporeal property except land and things attached to it is
movable property. A difficulty which exists in English law is got over by the first and
second explanations to S.378, which expressly state that things attached to the land may
become movable property by severance, and the act of severance may of itself be theft. The
cutting down of a tree, with the intention of dishonestly removing it without the owner's
consent, is thus theft.

37 .Property must be in possession of some one.- The property must be in the possession
of someone, but it does not matter whether that possession is rightful or wrongful. A thing
can be stolen from a thief who has himself stolen it, not less than from the rightful owner
of the thing. A person cannot steal a thing which is in his own possession, or a thing which
is not in the possession of any one. Wild animals (including game and fish) while at large,
not being in the possession of anyone, cannot be the subject of theft, but if they have been
tamed or are in confinement they can be stolen like any other property When a man
mislays property in his own house it still remains legally in his possession, and anyone
finding it is bound to assume that it belongs to him.

38.Possession through another. - Property in the possession of a person's wife, clerk or

servant, on that person's account is in the person's possession within the meaning of the
Penal Code. The same principle also extends to other cases where a man's property is in the
physical possession of some one to whom he has entrusted it and from whom he can
demand it unconditionally whenever he pleases. Thus, where a servant has his master's
plate in his keeping or a shepherd is in charge of his master's sheep, the legal possession
remains with the master; similarly, the landlord of an inn retains the legal possession of the
forks and spoons which his customers are handling at the dinner table and a shop-keeper
retains the legal possession of goods which a purchaser takes up in order to inspect them.
The possession of any thing by a servant on his master's behalf is thus considered to be the
possession of the master or the possession of the servant according to the circumstances
under which the servant originally received it. If, for instance, a servant is given the
custody of anything by his master, or by a fellow-servant who has been given the custody
of it by his master, the servant will have no real possession of the thing, and the possession
will remain in the master. Therefore, any dishonest taking of the thing by the servant will
be theft. If, however, a servant receives anything from a third person on his master's behalf
then the servant wi1I have possession of the thing, and the master will have no possession
until the servant does some act by which the possession is transferred from the servant to
the master-as, for example, by placing it in a till, cart or go down, in which the master's
goods are kept or carried.

39. What constitutes theft. -To constitute theft there must be:-
(i) a dishonest intention to take the property out of the possession of its real or
temporary owner (i.e., he who has "possession" of it) without his consent, and
(ii) a moving of the property in order to such taking.

The intention must be a dishonest one, that is, an intention to cause wrongful gain to one
person or wrongful loss to another, and therefore; inconsistent with a bona fide claim of
right. If the property is taken under the supposition, honestly entertained, that the taker has
an immediate right to possession, the intention is not dishonest and there is no theft; on the
other hand, a person who has pawned his watch can steal the watch from the pawn broker
because he has no right to possession until he has redeemed it. A claim of right would not
justify a person in taking property out of another’s possession without his consent with the
intention of thereby coercing the other to pay debt due to the taker. It must be remembered
that consent is not valid if given under fear or misconception. Some cases of what is known
in English law as "larceny by a trick" will therefore be theft in the Bangladesh law, but in
others this will not be so (See para.46 below).

40. Moving. - In addition to the dishonest intention there must be a moving of the
property in order to the taking of it. It is not necessary to prove that the goods were
removed out of their owner's reach, or were carried away at all from the place in which
they were found. In this respect the Bangladesh law differs from the English law; under
which some degree of "carrying away" is necessary. Here all that is necessary is
movement, and, that being proved, and the other ingredients of theft being present the
offence is complete.

41. Other allied offences. - Closely allied to theft are the offences of dishonest
misappropriation and criminal breach of trust. These differ from theft in that, while theft is
committed in respect of property in the possession of another, these, two offence consist in
dealing dishonestly with property which is lawfully in the possession of the offender.

42. Dishonest misappropriation. - The dishonest misappropriation of property honestly

come by, is punishable with imprisonment which may extend to two years, or with fine, or
with both, and even a temporary misappropriation, if dishonest, is within the terms of the
section. A common instance of this offence is the dishonest misappropriation of lost
property by the finder. The mere taking of such property into his possession by the finder is
not, in itself, an offence, but he is guilty of dishonest misappropriation if he appropriates it
to his own use when he knows or has means of discovering the owner, or before he has
used reasonable means to discover and give notice to the owner, and has kept the property
a reasonable time to enable the owner to claim it. A person appropriates property to his
own use when he sells it, or in any other way puts it out of his own power to restore it, or
when he definitely makes up his mind to keep it at all hazards as his own.

43. Criminal breach of trust. - Criminal breach of trust is defined in S.405 of the Penal
Cede, from which it will be seen that the offence consists in a person who has been
entrusted with any property, or with any dominion over it, dealing dishonestly with that
property. A person is "entrusted with property" when he is given the actual possession of it,
as, for example, when a servant receives property from a third party to deliver to his
master, but does not do any act to change his original possession into possession on
account of his master. A person is "entrusted with dominion over property" when it
remains legally in the owner's possession, but he is given a limited authority to deal with it,
as for instance a shopman who can dispose of his master's stock, but must hand over to the
latter the price he receives for it.

44. Receiving stolen property. For a person to receive or retain stolen property knowing
or having reason to believe that it has been stolen is an offence. For this purpose, the words
"stolen property" include property the possession of which has been transferred by theft,
extortion, or robbery, as well as property in respect of which criminal misappropriation or
criminal breach of trust has been committed.

The guilty knowledge of the receiver must be established; it is not sufficient to prove that
he metely suspected the property to have a tainted origin, but it will be sufficient if it is
shown that under circumstances a reasonable man must have felt convinced that the
property was stolen property. The fact that he bought it much below its value, or that he
falsely denied his possession of it might be evidence of guilty knowledge.
 A person is considered to receive the goods as soon as he obtains control over them; But
actual manual possession is not necessary; it is sufficient if they are in the actual
possession of a person over whom the receiver has a control so that they would be
forthcoming if he ordered it.

45. The doctrine of recent possession.- If a person is found in possession of property

recently stolen, there is a strong presumption that he stole it or received or retained it with
knowledge that it was stolen. The burden of proving guilty knowledge always remains
upon the prosecution, and upon the prosecution establishing that the accused was in
possession of recently stolen property, a naval tribunal may, in the absence of any
explanation by the accused of the way in which the property came into his possession,
which might reasonably be true, find him guilty; but if an explanation is given which the
tribunal think, might reasonably be true, and which is consistent with innocence, although
they are not convinced of its truth, the accused is entitled to be acquitted, in as much as the
prosecution has failed to discharge the duty cast upon it of satisfying the court beyond
reasonable doubt of the guilt of the accused, (See Chapter V. para.84.)

46. Cheating, - "Cheating" is defined in S. 415 of the Penal Code.

A person is said to cheat who induces another person by deception to part with property or
to consent to the retention of property by another person, The object of the offender must
be fraudulent or dishonest.

Another class of "cheating" is where a person intentionally deceives a person in order to

induce the latter to act to his detriment.

It is important to distinguish between a transfer of 'possession' only, and a transfer of

"property" in the goods taken; if A by false pretences induces B to give him possession
only of an article, and then without B's consent appropriates it to himself this is "theft"; but
if he so induces B to transfer to him not only the possession of, but also the property in, the
article, this is "cheating".

The deception may be made in any way, either by words, by writing or by conduct, and a
promise as to future conduct not intended to be kept may amount to cheating.

The property must be obtained either directly or indirectly by the deception; that is to say,
it would not have been obtained but for the deception. If the person from whom the
property is obtained is not deceived, the property is not obtained by the deception, but in
such a case accused may be convicted of attempting to cheat.

The following are examples of "cheating":-

(I) The giving of a cheque in exchange for goods knowing that the cheque will not be
met on presentation;
(2) Cheating by personation; e.g., obtaining goods on credit from a tradesman by
falsely pretending to be an officer;
(3) Obtaining money by cheating at cards, etc.;
(4) Obtaining a meal at a restaurant knowing that he was unable to pay for it.
(5) Obtaining a loan by falsely pretending that he will repay it;
(6) Selling by false weights;
(7) Obtaining a receipt by deceiving a person into the belief that payment had been
made for goods supplied.

Put briefly, the distinction between the four offences discussed above is as follows:
In theft the original taking is dishonest and without the consent of the owner.
In criminal breach of trust the original taking is honest and with the consent of the owner.
In criminal misappropriation the taking is honest but without the consent of the owner.
In cheating the taking is dishonest but with the consent of the owner.

47. Extortion. - It is an offence to extort or attempt to extort any property or valuable

security from a person by threatening to injure that person or any other person. "Injury"
means harm illegally caused to a person in body, mind, reputation or property.

The maximum punishment for extortion, if not aggravated by the circumstances

mentioned below, is rigorous imprisonment for three years and fine. If a person is put in
fear of death or of grievous hurt, or if the threat is to accuse person of having committed or
attempted to commit an offence punishable with death, transportation for life, or
imprisonment for 10 years, the Code provides for a more severe punishment.

48. Robbery.- The offence of "robbery" is defined in S.390 of the Penal Code. It is an
aggravated form of theft or extortion from the person accompanied by violence or threats
of immediate violence. The maximum punishment in ordinary cases is rigorous
imprisonment for ten years and fine, but the Code provides for a more severe punishment if
the robbery is committed on the highway between sunset and sunrise or if hurt is caused.
The violence or threats must be intentionally used for the purpose of overcoming or
preventing resistance, or of obtaining the thing stolen or extorted.

Dacoity. - If the robbery is committed by five or more persons, the offence is called
"Dacoity" and is punishable with transportation for life.

49. Mischief. - Numerous offences come under the category of mischief, which is defined
in S. 425 of Penal Code. The essence of the offence is injury to the property of another.
Such acts are offences if done with intent to cause, or with knowledge that they are likely
to cause, wrongful loss or damage.

The punishment generally varies. according to the amount of the loss or damage, but
certain aggravated instances of mischief are specially provided for in the Code; e.g.,
damaging irrigation works, roads, bridges, etc., causing inundations, obstructing public
drainage, and diverting water, damaging or destroying buildings, etc. by fire or explosives;
and ki1Iing or maiming certain animals.

(ix) Criminal Trespass

50. Criminal trespass. - Whoever enters into or upon property in the possession of
another, or having lawfully entered into or upon such property unlawfully remains there,
with intent to commit an offence or to intimidate, insult or annoy any person in possession
of such property, is said to commit "criminal trespass.

51. House-breaking, etc.-The aggravated kind of criminal trespass contained in the Penal
Code are :-
(1) House-trespass.
(2) Lurking house-trespass.
(3) Lurking house-trespass by night.
(4) House-breaking.
(5) House-breaking by night,

A person who commits house.-trespass is said to commit "housebreaking" if he effects his

entrance into the house or quits the house in any of the ways mentioned in S. 445 of Penal
Code .

A "house" means 'any building, tent or vessel, used as a human dwelling, or any building
used as a place of worship, or as a . place for the custody of property.

Night means after sunset and before sunrise.

The maximum punishment for these offences varies according to the nature of the offence
committed, or intended e.g., house-breaking by night in order to commit an offence
punishable with imprisonment may be punished with rigorous imprisonment for five years
and fine, but if the offence intended is theft, the maximum punishment is fourteen years;
and if grievous hurt is caused or intended, the offender is liable to be punished with
transportation for life.

(X) Miscellaneous offences

52. Criminal conspiracy. - Criminal conspiracy consists in the agreement of two or more
persons to do an illegal act or to do a legal act by illegal means; The mere intention to do
such an act is not a conspiracy. An agreement to commit an offence, even if the offence is
not afterwards committed is a criminal conspiracy, but if the agreement is to do a legal act
by illegal means, the agreement does not amount to a criminal conspiracy, unless some
over act is done by one of the accused in pursuance of the agreement.

53. Offences against the State.-The only offences against the state which need here be
mentioned are :-
(1) Waging war against the Government e.g., by joining in an insurrection.
(2) Conspiring to wage war against the Government, or to overawe the Government by
means of criminal force.
(3) Sedition.This offence consists in exciting or attempting to excite disaffection
towards the Government established by law in Bangladesh.
 54. Unlawful assembly. - An assembly of five or more persons is unlawful if the common
object of the persons composing that assembly is one of the five objects mentioned in S.
141 of the penal Code.

An assembly, which was not unlawful when it assembled, may become unlawful by the
subsequent acts of its members; but ~ illegal act of one or two members, not acquiesced in
by the others, does not change the character of the assembly.

Any person who, being aware of facts which render Ian assembly an unlawful assembly
intentionally joins, or continues in that assembly, is liable to be punished with rigorous
imprisonment for six months and fine ; if armed with a deadly weapon the maximum
punishment is two years rigorous imprisonment.

Rioting - If force or violence is used by any member of an unlawful assembly, in

prosecution of the common object of that assembly, every member of the assembly is
guilty of "rioting" and liable to be punished with rigorous imprisonment for two years and
with fine.

55. Forgery - Forgery is making a false document or part of a document, with intent to
cause damage or injury to the public or to any person, or to support any claim or title or to
cause any person to part with property, or to enter into any express or implied contract, or
with intent to commit fraud or that fraud may be committed.

A person makes a false document who:-

(i) dishonestly or fraudulently makes, signs, seals or executes a document, or
part of the document, with the intention of causing it to be believed that
the document or a part of it was made, etc.; by or by the authority of a
person who did not make it or authorise its making; or
(ii) who dishonestly or fraudulently alters a document in any material part
without lawful authority after it had been made by himself or any other
person; or
(iii) who dishonestly or fraudulently causes a person to sign, seal, execute or
alter a document, knowing that such person by reason of unsoundness of
mind, intoxication or deception, does not know the contents of the document
or the nature of the alteration.

A man's signature of his own name, if the intention is that it should pass as the signature
of someone else, and the making of a false document in the name of a fictitious person or
in the name of a deceased person, may amount to a forgery.

The maximum punishment for forgery under section 465 of the Penal Code is rigorous
imprisonment for two years and fine, but the Code provides a severer punishment for the
forgery of certain .documents such as court records, public registers, birth and death
certificates, wills, valuable securities and receipts. For the payment of money, etc., etc.

Uttering forged documents.- Whoever fraudulently or dishonestly uses as genuine any

document which he knows, or has reason to believe, to be a forged document, may be
awarded the same punishment as if he had forged the document.
TABLE OF OFFENCES AND PUNISHMENTS
 CHAPTER VII
CRIMINAL PROCEDURE

(i) Introductory

1. The Code of Criminal Procedure, 1898, extends to the whole of Bangladesh but it does not
effect, inter-alia, any special or local law; e.g., the Navy Ordinance, 1961. It has been framed
to supplement the Penal Code which contains the substantive criminal law of the country. It
provides rules of procedure for (1) preventing offences and (2) bringing the offenders to justice
for committing offences defined in the Penal Code or any special or local law if no specific
procedure is provided in the special or local law.
2. Those offences for which a police officer may arrest a person without a warrant from a
Magistrate are known as cognizable offences. In other words in such cases a police officer as
such can take cognizance. Whereas those offences for which a police officer may not arrest a
person without warrant are known as non-cognizable offences. In other words in such cases a
police officer cannot as such take cognizance.
3. Aid to Magistrate and Police. - Every person is bound to assist a Magistrate or a police
officer demanding his aid:-
(i) in the checking or preventing the escape of any person whom the Magistrate or police officer
is; authorised to arrest;
(ii) in the prevention or suppression of a breach of the peace;
(iii) in the prevention of any injury attempted to be committed to any railway, canal, telegraph
or public property.

4. Aid to a person executing a warrant - When a person other than a police officer is executing
a warrant any person may aid in its execution.

5. Information of certain offences.-Every person aware of the commission OJ: intention to

commit the following offences under the Penal Code, is bound, in the absence of any reasonable
excuse to give information to the nearest Magistrate or police officer;
(i) offences against the State;
(ii) unlawful assembly;
(iii) rioting with weapons;
(iv) murder;
(v) culpable homicide not amounting to murder;
(vi) theft with preparation to cause death or hurt;
(vii) robbery and its aggravated forms;
(viii) dacoity and its aggravated Coons; ;
(ix) mischief by fire or explosive substance;
(x) house-trespass to commit offence punishable with death or imprisonment for life;
(xi) lurking house-trespass or house-breaking by night and its aggravated forms .

(ii) Arrest and Search

6. Arrest Generally. - The police officer in making the arrest touches or confines the body of a
person to be arrested, unless he submits to the custody by word or action. If he forcibly resists or
attempts to evade the arrest, force may be used to effect the arrest, but he cann6t be killed if he is
not accused of an offence punishable with death or transportation for life;
7. Search of place for arrest of a person - If such a person has entered into, or is within any
place, the person in-charge of the place must allow free ingress and afford all facilities for a
search. If such ingress cannot be obtained, then any outer or inner door or window of any house
or place may be broken open to obtain admittance. But if such place is an apartment in the
occupation of a zanana woman notice to withdraw is to be given before breaking it open and
entering it. The police officer or other person authorised to arrest may break open any outer or
inner door or window of any place in order to liberate himself or any other person who, having
lawfully entered for the purpose of making an arrest, is detained Therein.

8. Restraint upon arrest -The person arrested is not to be subjected to unnecessary restraint.
Where he is not admitted to bail, he may be searched and all articles other than necessary
wearing apparel found upon him may be placed in safe custody. In the case cognizable offence
in his view or any proclaimed offender. He must, however, without delay hand over such person
to a police officer or to the nearest police station.

10. Escape from custody.-If a person in lawful custody escapes or is rescued, the person in
whose custody he was may pursue and arrest him in any place in Bangladesh. The person
pursuing him may enter into any place for search may break open any outer or inner door for
ingress or egress.

(ii)Processes to compel Attendance

11. Summons. - Every summons is to be in writing, in duplicate, signed and sealed by the
presiding officer of the court issuing it, or such other officer as the High Court directs. It is
served by a police officer, an officer of the court issuing it, or a public servant.6

12. Service of summons. - A summons is served personally on the person summoned by

delivering or tendering to him one of the duplicate copy and obtaining a receipt on the back of
the other? When the person summoned cannot be found, the summons may be served by leaving
one of the duplicates with some adult. male member of his family.8 If service cannot be effected
as above, the serving officer may affix one of the duplicates to some conspicuous part of the
house or homestead in which he ordinarily resides.9

13. Service of summons to a Government servant. - Service on a Government servant may be

effected by sending the summons, in duplicate, to the Head of the office who passes it to be
served and returns it under his signature with the endorsement of the person on whom it is
served .10

14. Production of documents and movable property summons.- When a court or on officer-
in-charge of a police station considers that a document or thing is necessary or desirable for any
investigation, inquiry or trial, the court may issue a summons or the officer an order, to the
person in whose possession or power it is to produce it at a specified time and place. Such
document or thing may be produced by the person himself or by some one on his behalf.1

15. Issue of Warrant in lieu of Summons. - The Court may issue a warrant in lieu of a
summons
(a) if it has reason to believe that such person has absconded or will not obey the
summons;
(b) if he fails to appear after the summons is served without any reasonable excusc; 2
(c) if he fails to appear when he is bound by a bond to do so before the court8

16. Warrant. - A warrant is an order in writing from a Court directing a police officer to arrest
the person mentioned therein, and. produce him before the Court without delay.4 It may contain
a direction that if the person arrested executes a bond with sufficient sureties for his attendance
before the court, he may be released from custody. The warrant will also specify (a) the number
of sureties; (b) the amount in which they and the person arrested are to be bound, and (c) the
time at which he is to attend before the court.5

(iv) Unlawful Assembly

17. Any Magistrate or officer-in-charge of a police station may command any unlawful
assembly to disburse.6 If such assembly does not disburse, the Magistrate or officer may
disburse it by force with the assistance of any male person and arrest and confine the persons
forming part of it? If the assembly cannot be otherwise disbursed, the Magistrate of the higher
rank who is present ,may disburse it by military forces.8 The Officer Commanding troops must
obey the requisition of the Magistrate, and use as little force and do as little injury to person and
property as may be necessary in disbursing it .I Any commissioned military officer may disburse
such assembly by military force if (a) public security is manifestly endangered, and (b) no
Magistrate can be communicated with.2 Sanction of the Government is necessary for any
prosecution against Ii military officer or soldier for any of the aforementioned acts; Any act done
in good faith or any act done by an inferior officer or soldier in obedience to any order is not an
offence.3

(v) Recording of a Statement before the Police and recording of a Statement or a

Confession before a Magistrate
18. Attendance of Witnesses. - A police officer making an investigation may, by a written
order, require the attendance of persons acquainted with the circumstances of the case.4 He may
examine them orally and they are bound to answer all questions relating to the case other than
questions the answers to which would have a tendency to expose them to a criminal charge or to
a penalty or forfeiture.5

19. Statement to Police. - A statement made to the police, if reduced, into writing, is not to be
signed by the person making it; and the statement or any record thereof, whether in a police
diary or otherwise, is not to be used for any purpose at any inquiry or trial except in the
following way:-

If the maker of the statement is called as a witness for the prosecution, the court on the request
of the accused refers to such writing and directs that the accused be furnished with a copy
thereof in order that any part of such statement, if duly proved, may be used to contradict such
witness. It may also be used in his re-examination for explaining any matter. But if the Court is
of opinion that (1) any part of such statement is not relevant or (2) its disclosure is not essential
in the interests of justice and is inexpedient in the public interests, it records its opinion and
excludes such part from the copy to be furnished to the accused. A police officer shall not offer
any inducement, threat or any promise to the person making the statement. He shall not by
caution prevent any person from making any statement of his own free will.1
20. Recording of a statement or ,confession by a Magistrate .A First Class Magistrate or
Second Class Magistrate specially empowered (but not a police officer), may record a statement,
or confession made in the course of an investigation or at any time before the commencement of
the inquiry or trial. The Magistrate recording it may not be the magistrate having jurisdiction in
the case and he is to forward such statement or confession to the Magistrate by whom the case is
to be inquired into or tried. Before recording a confession the Magistrate is to explain to the
person making it that :-
(a) he is not bound to make it, and
(b) it may be used as evidence against him.

The Magistrate is also to ensure by questioning him that it has been made voluntarily. Tho
Magistrate shall endorse on the confession that he has explained to the accused, as mentioned
above, and that it is voluntarily made as well as that
(i) it \\IaS taken in his presence ~d bearing :
(it) it was r~ over to him "; (iii) It was admitted by him to be correct; and (iv). it contained a full
and true aocount of the statement
The Magistrate is also to ensure by questioning him that it has been made voluntarily. Tho
Magistrate shall endorse on the confession that he has explained to the accused, as mentioned
above, and that it is voluntarily made as well as that
(i) it \\IaS taken in his presence ~d bearing :
(it) it was r~ over to him "; (iii) It was admitted by him to be correct; and (iv). it contained a full
and true aocount of the statement
The Magistrate is also to ensure by questioning him that it has been made voluntarily. The
Magistrate shall endorse on the confession that he has explained to the accused, as mentioned
above, and that it is voluntarily made as well as that: -
(i) It was taken in his presence and bearing:
(ii) It was read over to him;
(iii)It was admitted by him to be correct; and
(iv) It contained a full and true account of the statement made by him.2
any part of such statement is not relevant or (2) its disclosure is not essential in the interests of
justice and is inexpedient in the public interests, it records its opinion and excludes such part
from the copy to be furnished to the accused. A police officer shall not offer any inducement,
threat or any promise to the person making the state me.ot. He shaU. n.ot by caUon pft)vont any
person from making
21. Joinder of charges. For every distinct offence there is a separate charge, and every such
charge is tried separately to this the following are exceptions:
(1) When a person is accused of more offences than one of the same kind committed within one
year in 'respect of the same person or not, he may be charged with and tried at one trial for any
number of them not exceeding three.4' (Offences are of the same kind when they are punishable
with the same amount of punishment under the same section of the Penal Code, or of any special
or local law.)
(2) If, in one series of acts so connected together as to form the same transaction, more
offences than one arc committed by the same person, he may be charged with and tried at
one trial for every such offence.
(3) If the acts alleged constitute an offence falling within two or more definitions
of any law, the person accused of them may be charged with and tried at one trial
for each of such offences.
(4) If the acts, of which one or more than one, would by itself or themselves constitute
an offence, constitute when combined a different offence, the person accused of
them may be charged with, and tried at one trial for both the categories of
offences.
(5) Where it is doubtful what offence has been committed, the accused may be charged
with all or any of the offences, and any number of such charges may be tried at once ; or
he may be charged in the alternative with having committed some one of the
offences.2

22. Charge of one offence, conviction of another.-(I) When a person is charged with one offence,
and it appears in evidence that he has committed a different offence, he can be convicted of that
offence.3
(2) When a person is charged with an offence consisting of several particulars, and some of the
particulars constitute a minor offence, he may be convicted of such minor offence.
(3) When a person is charged with an 'offence and facts are proved which reduce it to a minor
offence, he may be convicted of the minor offence.
(4) When a person is charged with an offence, he may be convicted of an attempt to commit it.

23. What persons may be charged jointly. -The following persons may be charged and tried
together :-
(I) persons accused of the same offence committed in the course of the same transaction;
(2) persons accused of an offence and persons accused of abetment or an attempt to
commit it ;
(3) persons accused of more than one offence of the same
kind committed jointly within twelve months;
(4) persons accused of different offences committed in the course of the same
transaction;
(5) persons accused of theft, extortion, or criminal misapprop- riation, and persons
accused of receiving or retaining or assisting in the disposal or concealment of property
obtained in the commission of these offences.1
24. Withdrawal of charges on conviction. - When a conviction takes place on one out of
several heads of a charge, the complainant, or the prosecuting officer may, with the consent of
the Court, withdraw the remaining charges, or the Court itself may stay inquiry into such
charges; 8uch withdrawal has effect of an acquittal on such charges, unless the conviction be set
aside, in which case the Court (subject to the order of the Court setting aside the conviction) may
proceed with the inquiry into the charges so withdrawn. 2
(vii) Accused
25. Examination of the accused:- the Court may at any stage of an inquiry or trial put
questions to the accused to explain any circumstances appearing in the evidence against him, and
it shall question him generally on the case after the witnesses for the prosecution have been
examined and before he is called on for his defence. No oath is administered to him The accused
does not render himself liable to punishment by (a) refusing to answer such questions, or (b)
giving false answers to them, but the Court or jury may draw such inference from such refusal or
answers, as it thinks just. The answers may be taken into consideration in such inquiry or trial
and put in evidence for or against him in any other inquiry or trial for any other offence which
such answers may tend to show he has committed.3
(viii) Autrefois Acquit and Autrefois Convict
26. Previous acquittals or convictions. - A person (I) who has once been tried for an offence,
(2) by a competent Court, and (3) convicted or acquitted, of such offence, (4) is not, while such
conviction or acquittal remains in force, (S) liable to be tried again for the same offence, (6) nor
on the Same facts for any other offence for which a, different charge might have been made
under S.236 or for which he might have been convicted under S.237. But –
(1) a person acquitted or convicted of any offence may be tried for any distinct offence for which
a separate charge might have been made against him under S.235 (1)
(2) a person convicted of an offence constituted by any act causing consequences which,
together with such act, constituted a different offence from that for which he was convicted, may
be tried for such offence if the consequences had not happened, or were not known to the Court
to have happened, when he was convicted;

(3) a person acquitted or convicted of an offence may be tried for any other offence if the Court
by which he was first tried was not competent to try the subsequent offence. 1

(ix) Offences affecting administration of justice

27. Power to commit.-When a court is of opinion that in the interest of justice an inquiry should
be made into an offence which appears to have been committed in a proceeding before such a
Court.
(1) it may, after preliminary inquiry, record a finding to that effect;
(2) it may make a complaint in writing; (3) it forwards the complaint
to a .first class Magistrate having
jurisdiction;
(4) it may take sufficient security for the appearance of the accused before the
Magistrate;
(5) if the offence is non-bailable, it may send the accused
in custody to the Magistrate;
(6) it may bind over any person to give evidence before
the Magistrate.
28. Contempt cases.-When an offence of-.
(i) intentional omission to produce a document;
(ii) refusal to take an oath;
(iii) refusal to answer a question;
(iv) refusal to sign a statement;
(v) intentional insult or interruption in a judicial proceeding; is committed in the
view or presence of a Court, the Court may (1) cause the offender to be detained in
custody, and (2) before rising take cognizance of the offence and sentence him to
fine not exceeding Tk. 200, and in default, to simple imprisonment up to one month.1

The Court records the facts constituting the offence, the finding and sentence. In the case of an
offence of intentional insult or interruption in a judicial proceeding, the record must show:-
(1) the nature and stage of the judicial proceeding in which the Court was sitting, and
2
(2) the nature of the interruption or insult.

If the Court thinks (a) that the person committing any of the offences referred to in S. 480 should
be imprisoned, or (b) a fine exceeding Tk.2oo should be imposed upon him or (c) the case
should not be disposed of under S. 480, it may, (1) after recording the facts and the statement of
the accused, (2) forward the case to a Magistrate having jurisdiction to try it, (3) require security
for the appearance of the accused before the Magistrate, or (4) if security is not given, forward
him in custody to the Magistrate. The Court may (1) discharge the offender, or (2) remit the
punishment, on his submission to its order or requisition, or on apology being made to its
satisfaction.4

29. Applicability to Court-martial.- The above provisions of this subheading in respect of

offences affecting administration of justice are also applicable to such offences in relation to
Court-martial and giving of false evidence by witnesses. is mentioned in sections 73 and 74 of
the Navy Ordinance. The procedure to be followed by the Court-martial in taking action against
civilian offenders in respect of these offences is laid down in Navy Rule 223.

(x) Maintenance of Wives and Children

30. Maintenance Order. - If a person having sufficient means neglects or refuses to maintain
his (1) wife, or (2) legitimate or illegitimate child unable to maintain itself, he may, upon proof
of neglect or refusal, be ordered by a Magistrate to make a monthly allowance for the
maintenance of his wife or child, at a rate not exceeding Tk.100, It is payable from the date of (l)
the order or (2) application for maintenance.

31. Enforcement of Order.- If the persoDor4ered fails, without sufficient cause, to comply with
the order, the Magistrate may, for every breach of the order, (1) issue a warrant for levying the
amount due as if it was fine (provided the application is made within one year from the date on
which it is payable), and (2) sentence him, for any amount unpaid, to imprisonment up to one
month. If he officers to maintain his wife if she lives with him. but she refuses to do so, the
Magistrate may consider the grounds of refusal and, if they are just make an order giving
maintenance, if husband has contracted marriage with another wife or keeps a mistress, it shall
be considered to be just ground for the wife's refusal to live with him.

A wife is not entitled to receive an allowance from her husband and the Magistrate may cancel
the order, if
(1) she lives in adultery, or
(2) she refuses to live with her husband without sufficient cause, or
(3) they are living separately by mutual consent.

All evidence is taken in the presence of the husband or father or his pleader, and is recorded as
in summons-cases. If he willfully avoids service or neglects to attend the Court, the Magistrate
may hear and determine the case ex parte. An ex parte order may be set aside, for goo d cause, if
an application is made within three months from its date.

Proceedings may be taken in the district in which the person (1) resides, or (2) is, or (3) where he
last resided with his wife or the mother of the illegitimate child.1

A copy of the order of maintenance is given without payment to the person in whose favour it is
made, and it may be enforced by any Magistrate in any place where the person against whom it
is made may be.

(xi) Habeas Corpus

32. Power to issue Habeas Corpus directions.- "The supreme court, High Court Division may
direct that

(1) a person within the limits of its appellate criminal jurisdiction be brought before it to be
dealt with according to law;
(2) a person illegally or improperly detained in public or private custody within such limits
be set at liberty;
(3) a prisoner detained in any jail, within such limits, be brought before it to be examined as
a witness;
(4) a prisoner detained as above be brought before a Court- martial or any Commissioners,
for trial or for examination as a witness;
(5) a prisoner within such limits be removed from one custody to another for trial;
(6) the body of a defendant within such limits be brought in on the Sheriff's return of
cepi corpus to a writ of attach ment.1

(xii) Bail
33. Bailable offence.-When a person accused of a bailable offence is arrested or detained
without warrant by an officer in charge of a police-station or appears or is brought before a
Court, and is prepared to give bail, he is released on bail. But such officer or Court may
discharge him on his executing a bond for his appearance.2

34. Non-bailable offence.-(l) When a person accused of a non-bailable offence is arrested or

detained without warrant by an officer in charge. of a police station, or appears or is brought
before a Court, he may, after recording {he reasons in writing, be released on bail but he is not
80 released if there are reasonable grounds for believing that he has been guilty of an offence
punishable with death or transportation for life. But the Court may direct that (1) any person
under sixteen years of age, (2) any woman; or (3) arty sick or infirm person accused of such an
offence be released on bail.

(2) If it appears to the officer or Court at any stage of investigation or trial that there are not
reasonable grounds for believing that the accused has committed a non-bailable offence, but
there are sufficient grounds for further inquiry, the accused is released on bail, after recording
the reasons in writing, or on the execution of a bond for his appearance.

(3) If after the conclusion of a trial and before judgment is delivered, the Court is of opinion that
there are reasonable grounds for believing that the accused is not guilty, it releases the accused
on the execution by him of a bond for his appearance to hear judgment.2

The amount of a bond is fixed with due regard to the circumstances of the case and is not to be
excessive. 1

(xiii) Commission for the Examination of witnesses

35. Issue of commission.-When it appears to a Court that (1) the examination of a witness is
necessary for the ends of justice and (2) that the attendance of such witness cannot be procured
without an amount of (a) delay, (b) expense or (c) inconvenience, which would be unreasonable,
(3) the Court may dispense with such attendance and may issue a commission for the
examination of such witness.2

36. To whom to be issued.-(l) Depending on where the witness resides, the commission
will be issued as follows :-

(a) If within Bangladesh to the District Magistrate in or in relation to the area where the
witness resides.
(b) If in United Kingdom or any other Commonwealth country or in Burma, to such Court
or Judge as may be specified by the Government.

(2) The District Magistrate to whom the commission is issued, or any other First Class
Magistrate appointed by him, is to proceed to the place where the witness is, or summon the
witness before him and take down his evidence as in warrant cases.
37. How witnesses are to be examined- A witness on commission may be examined either on
interrogatories or viva voce by the Parties." When commission is issued, the inquiry, trial or
proceedings may be adjourned till the commission is executed and returned
38. Return of Commission.-After any commission has been executed, it is returned with the
deposition of the witness to the Court issuing the commission. The commission, the return and
the deposition are open to inspection of the parties and may, subject to all just exceptions, be
read in evidence in the case by either party and form part of the record. The deposition, if it
satisfies the conditions of Section 33 of the Evidence. Act may be received in evidence at any
subsequent stage of the case before another Court.
39. Applicability to Court-martial.-The above provisions of this subheading, namely
commission for the examination of witnesses (as extracted from Chapter XL of the code of
Criminal Procedure), are to be followed by a Court-martial when it is considered expedient by
the Court-martial to issue a commission for' the examination of witnesses in exercise of the
powers conferred upon it by Section 117 of the Navy Ordinance. The Court-martial may be
adjourned upon issue of the commission, or may continue to record evidence of other witnesses.
Upon the commission being executed, it will be returned together with the deposition of the
witness to the Judge Advocate General, who will forward it to the Court-martial who issued it,
or, if the Court-martial is in the meanwhile dissolved, to another Court-martial convened for' the
trial of the accused.

(xiv) Special Rules of Evidence

40. Evidence where accused has absconded.- If an accused has absconded, and there is no
immediate prospect of arresting him, the Court competent to try or commit for trial may examine
the prosecution witnesses and record their depositions. Such deposition may, on the arrest of the
accused, be given in evidence against him, in any trial, if the deponent is (1) dead, or (2)
incapable of giving evidence, or (3) his attendance cannot, be procured without an amount of
delay, expense or inconvenience, which would be unreasonable.

CHAPTER VIII
MEMORANDA FOR THE GUIDANCE OF OFFICERS
CONCERNED WITH COURT-MARTIAL

The following memoranda as to court-martial are intended for the guidance of commanding and
convening officers and others with a view to securing uniformity of practice and avoiding some
common mistakes:-
(i) Executive Officer
1. If the commanding officer, after hearing the case for the prosecution as well as for the
defence, decides to apply for a trial by court-martial, the Executive Officer should:-
(a) Frame the charges in the proper legal form and prepare the necessary number of copies
for the commanding officer's signature.
(b) Have the necessary number of copies of the summary of evidence prepared for
submission to the convening officer.
(c) Prepare the application for a court-martial (see Form in the Fourth Appendix),
and a covering letter briefly explaining the back-ground of the case and the reason why a
court-martial was being applied for, for the commanding officer's signature.
(d) Hand over a copy of the charge-sheet to the accused and ascertain from him if he desires
to be represented by a defending officer at his trial.
(e) Ensure that all the documents and papers required to be
forwarded with the, application are complete and in order.
(f) Forward the application for court-martial, the covering letter, original and necessary number
of copies of the charge sheet (or charge-sheets) and the summary of, evidence, together with
other relevant papers, etc, to the convening officer through normal channels.
(g) Prepare for the commanding officer's signature and forward special reports in case of
delay between the arrest and trial by court-martial of the accused in accordance with N.O.
Section 90(3) (See rule 44.)
2. When a trial by court-martial has been ordered, the Executive Officer should: -
(a) Promulgate the ardor for the assembly of the court in Daily
orders.
(b) Warn the accused and hand him a copy of the convening
order, the charge-sheet (or charge-sheets) and the summary
of evidence.
(c) Prepare a suitable room for the court and detail and fully brief an officer as the
officer of the court as well as stenographers.
(d) Arrange for the presence of all witnesses during the trial.
(e) Ensure an adequate supply of stationery for the use of the

court, the prosecutor and the defending officer.

(f) If an interpreter is likely to be required detail a suitable person (or persons).

3. During the trial, the Executive officer should:- (a) Arrange for the following
ceremonial to be observed on
each day on which the court-martial is sitting :-
(i) The Bangladesh National Flag to be hoisted at the peak
or at the yardarm, as appropriate-when the Colours are hoisted.
(ii) A gun to be fired immediately after the Colours have
been fully hoisted and before the "carry on" is sounded.

Note:-It is normally to be fired by the ship or establishment in which the court-martial

is to be held, but if this is impracticable for any reason, the gun may be fired by
any other ship, establishment or shore battery in the vicinity as directed by
the Convening Authority.

(iii) The National Flag to be dipped between each separate

sitting of the Court and to be hauled down when the
Court adjourns for the day. (See N.R. 1722.)
(iv) A Petty Officer's Guard to be paraded for a Captain or Commander attending
a Court-Martial as President or Member, on arrival as well as on departure. The Presi-
dent if he wishes, may order that marks of respect are not to be rendered on
the departure of the Court. The Guard is to present arms only to Captains.

Note: (1) Where it is not possible for the ship, in which the court martial is to be held,
to provide the Guard instructions for the Guard to be provided by another
ship on other ship are to be issued by the Convening Authority.
(2) Officers attending as members of a court-martial should ensure that they arrive before
the President of the Court, in order that they are present to receive him on his arrival.
Guard is not to be paraded for officers below the rank of Commander. (See N. R. 1741,
1742, 1754 and 1755.)

(v) The side to be piped-only on board ships (not in shore establishments)-whenever the
President or a Member of a court-martial is proceeding to or returning from the Court. (See
N.R. 1741 and 1744.)
 (b) Arrange for the accused to be examined by the medical officer on the morning of the
first day of the trial and for the certificate of fitness of the accused for trial to be han ded
over to the prosecutor.
(c) Prepare, or obtain from the officer having the custody of service records of the
accused, an up-to-date extract of the service record and character of the accused and keep it
ready for production to the court, if required.
(d) Render such assistance as is required to the court the judge advocate; the prosecutor
and the accused and his defending officer, during the course of their duties.

4. After confirmation (or non-confirmation) of the findings and sentence by the

confirming authority, the Executive Officer should:
(a) If the proceedings are confirmed promulgate, to the accused the findings and sentence-(if
any) and the confirmation. If not confirmed, promulgate that fact only, taking care not to
divulge the finding and sentence of the court.
(b) Take necessary extracts for record in the documents of the accused.
(c) He must remember that if the accused is acquitted, or if any finding of guilty has not
been confirmed, no. extract must be taken for the service documents of the accused in
respect of such finding or findings.
(d) If any proceedings are, subsequent to promulgation, quashed by competent authority
(Section 137), he must ensure that the entry relating to the conviction of the accused in the
latter's service documents is deleted referring to this revision order, under the signature
of the, commanding officer.
(II) Points to be remembered while record.lng Summary of Evidence
5. The investigating officer should make himself acquainted with ail the circumstances of the
case and the testimony of the witnesses and carefully consider whether any additional evidence
is relevant and necessary. Intelligent and patient investigati9n will often result in the discovery
of a missing link in the chain of evidence, or corroborating evidence or evidence tending to
exculpate the accused.
6. When reducing the evidence of witnesses to writing, the investigating officer should:-
(a) Have the evidence recorded as far as possible so that events
are set out in chronological order.
(b) Have it recorded in the first person, noting at first the status,
employment or appointment of the witness, followed by the
place date and time (if material), to which the evidence refers,
e. g., "I am employed- as Senior Commissioned Master-at- Arms at BNS Issa Khan At
0815 hours, on 12th August" 1980 when I was standing in the verandah of the Guard Room,
I saw the accused, whom I now recognise, walking towards the gate with a small box on
his shoulder ".
(c) Ensure that only such evidence as is admissible in law is adduced; particularly
eliminate all irrelevant and hearsay statements; see. rule 204.
(d) Avoid attempting to tell the story of the crime by recording
conversations at which the accused was not present.
(e) Ascertain that any document intended to be produced is legally admissible in evidence. Every
document intended to be produced to the court must be produced by a witness and described
and, where necessary, identified by a witness able to do so, for example, where a document has
been acknowledged as correct or signed by the accused, evidence must be given to show that he
has acknowledged it or his signature must be identified. Mark and -number documents according
to order of production.
(f) Arrange for the preparation; production and proof of plans where necessary.
(g) Record the evidence of witnesses as nearly as possible in their own words and expressions.
When evidence is not given in English, it will be interpreted and recorded in English.
(h) If the accused has, to any person or at any time, said anything by way of explanation or
admission of any of the facts in issue, consider the circumstances in which the statement
was made and if it is admissible let a witness be called to prove it.
(i) Remember that when it is proposed to tender evidence of an admission or confession, it is
desirable. that evidence should first be adduced by the prosecution of the circums
tances in which it was made to show that it was voluntary,
although under the Bangladesh law the onus lies upon the accused of showing that a confession
made by him was not voluntary (See Chapter Y, para.84).
(j) With regard to the attendance of witnesses, take advantage where desirable of the provisions
of rule 50(8). The written
statement of such witnesses must be signed and countersigned as required by this rule.
(k) Remember that a civilian witness can be compelled to attend the summary trial,
see section 116 and rule 50(7).
(I) At the close of the evidence of each witness who is not
cross-examined by the accused, make a note that "the
accused declines to cross examine".
(m) Ensure that the record of any statement made by the accused is. prefaced by a
note that he was formally
"cautioned" in the terms laid down in rule 50(5).
7. Where the charge is for deficiency of kit, the fact that the accused has been at some time
previously in possession of a complete kit or of the articles alleged to be deficient, the date and
place of discovering any, subsequent deficiencies, and that none of the articles have since been
recovered, should be included in the summary of evidence; Any articles recovered will be
omitted from the charge.
8. Where a certified true copy of a record in any official register, book or document is to be
produced (section 120(4)], the copy should show clearly that the record purports to have been
signed by the c6mmandilig officer or by the officer whose duty it was to make the record
(section 120(3)].

9. Where the charge is for neglecting to obey any general or local order under section 42 of the
Ordinance, the original order must be produced.
10. As regard the evidence to be recorded at a board of inquiry into the illegal absence of a
person, see rule 259.

11. A certificate of surrender or apprehension under section 120(6) should only state the fact,
date and place of the surrender or
apprehension and is only admissible as evidence of those facts and only in cases of desertion or
absence without leave. The circumstances of the surrender or apprehension must be proved by a
witness. The certificate must be signed by, a police officer not below the rank of an officer in
charge of a police station.
12. Many cases depend on the identification of person or things. Evidence should be recorded to
show that each witness identifies the accused, and any other person or thing mentioned in his
evidence whose identity is relevant to the charge; e.g., on a charge for theft, the articles, the
subject of the charge, must be produced and identified or their absence satisfactorily accounted
for. Articles alleged to have been damaged should-be produced and identified.
13. Where the charge is for any offence which has occasioned any expense, loss, damage or
destruction for which it is expedient to award compensation under section 82(d), values should
be assessed and evidence taken as follows;

(a) When an article which has an official value has been lost or rendered unserviceable, a
witness is required who can prove the value (inclusive of authorised departmental expenses)
of the article at the date of loss upon a basis of its age and/or condition and by reference
to the regulations which should be produced for fixing the value of the article at that age or
in that condition.

(b) When the article has no official value, competent evidence is required to prove the
approximate value.

(c) When an article. has been damaged but not rendered unserviceable competent evidence
is required to prove the pecuniary amount of the damage, which will be either the cost
of repairing it, if it can be repaired, or the loss of value caused by the act of the accused
if it cannot be repaired, or the cost of repair plus any ultimate loss of value due to the
act of the accused.

(d) In the case of absence or desertion, the deficiencies, to be alleged in a charge under
section 64(a), are those ascertained when the accused rejoined, not necessarily those found
on, the Commencement of the absence or by a board of inquiry. Evidence, hou1d not be
taken of the value of personal clothing and necessaries the property of the accused, the value
of which has not to be made good to the public.

14. Where the charge is for misappropriation or losing by neglect money or stores, etc., the
evidence should show:-

( a) The period during which the accused held office and was
responsible for certain money or stores, etc.
(b) That at the opening of this period the accounts and money, stores, etc, were correct.
(c) Receipts and expenditures of money, stores, etc, during this period.
(d) That at the close of this period there was a specific deficiency of money or stores,
etc.

Items (b), (c) and (d) must, as a rule, be proved by the production of a sworn witness of the
original account books, and vouchers and evidence that they were kept or signed by the accused.
Witnesses should then give evidence explaining the deficiency which is checked with the
original books, etc, and recorded.

15. In cases of attempts to commit suicide, medical evidence giving an opinion as to the state of
mind of the accused at the time of the commission of the alleged offence should be taken.

16. In case of self-maiming, the medical witnesses should be asked whether the injury sustained
by the accused will render him unfit for further service.

17. Where the accusation arises out of complaint made by an individual who has not yet
identified the person whose conduct is complained of, the complainant and any other alleged
eye-witness in the same circumstance, should have an opportunity of picking out from a group
the man against whom they are prepared to give evidence. For this purpose an identification
parade should be held in the presence of the investigating officer before the witness or witnesses
give evidence or otherwise see the accused in circumstances which may suggest that they are
expected to recognise one particular man as the offender. At such a parade a witness should not
be permitted to see or hear anything which might induce him to take a cue from the behaviour of
another witness.

18. If in any case two or more persons are suspected of complicity in an offence, and it is found
necessary to call one of these as a witne5s for the prosecution against the other or others charged
in connection with the off once, one of the two courses must be taken; either :-
(a) Proceedings against him must be abandoned and any charge therein already preferred
against him dismissed; or
(b) Steps must be taken to ensure that the case against him is disposed of summarily or tried by
court martial before the trial of persons concerned against whom he is to give evidence; and that
he is only tendered as a witness when he has already been acquitted or convicted See Chapter V,
para.90

In all such cases, the circumstances and the course proposed should be fully set out in a covering
letter to the convening officer.

(iii) Commanding Officer

19. When the commanding officer has decided to remand the accused for trial by court-martial,
he shall normally within 48 hours apply in the form set out in the fourth appendix to the rules to
the proper naval authority to convene a court-martial. (See Rule 50(10).J

20. Before applying for the trial of an offender, a commanding officer should satisfy himself :-

(a) That the accused is subject to the Navy Ordinance, and is charged with an offence
against that Ordinance.
(b) That the offender is not exempt from trial under the provisions of Section 1
OS.
(c) That the offence is such that it is beyond the competency
of his powers of punishment due either to its gravity or
due to the previous conduct of the accused.
(d) That the summary of evidence is properly recorded. (See
paras.5 to 18 above.)
(e) That the evidence justifies the trial of the offender on the
charge or charges.
(f) That the charge is framed in proper and legal manner under
the appropriate section (rulesl24, 125 and 126) and signed
by him.
(g) That the Executive officer (or other officer) has given the
accused a copy of the charge-sheet as soon as practicable after he had been remanded for
trial and that his rights as to preparing his defence and of being assisted or represented at
the trial have been explained to him by that officer.

21. When making application for the trial of the offender, the commanding officer should satisfy
himself that the following provisions are strictly complied with:-
(a) The application for trial must be accompanied by all necessary documents as therein
specified and the medical officer's certificate at the foot completed. The application should be
submitted, without unnecessary delay after the accused has been remanded for trial.
(b) The name of the officer to act as prosecutor should be stated on the application.
(c) The convening officer must be informed whether or not the accused desires to
have a defending officer assigned to represent him at the trial.
(d) The information required as to officers who have investi gated the case, or sat
on a board of inquiry, must be given with great care.
(e) The charge-sheet must be signed by the officer in actual command of, the ship or
establishment to which the accused
belongs, and should state the place and date of signature.
(f) Sufficient space should be left at the foot of the chargesheet for the orders of the convening
officer. The place and the date should be entered by the officer signing such orders.
(g) The section of the Ordinance under which each charge is framed should be entered in the
margin, opposite the charge to which it refers.
(h) When it is intended to prove any facts in respect of which any penal deductions from the pay
and allowances of the accused can be awarded in consequence of the offence charged, those
facts must be clearly shown in the particulars of the charge and the sum of the loss or damage it
is intended to charge (see para.13 above)
(i) The statement containing the summary of entries in the service records of the accused,
by whomsoever produced, is to be signed by the commanding officer or the officer having
the custody of the books from which it compiled. In this form, only those summary
punishments as are permitted by rule 106 (3) are to be entered. Offences of the same class as
that being charged should be shown in a separate group (rule 157).

22. After a trial has been ordered, the commanding officer should satisfy himself that the
following provisions are complied with:-
(a) The accused must be warned for trial not1ess then 48 hours before the court assembles,
must be informed by an officer of every charge on which he is to be tried, must be given a
copy of the charge-sheet and of the summary of evidence, and notice of the intention to
call witnesses whose evidence is not contained in the summary and an abstract of their
evidence, and (if he so desires it) must be informed of the ranks and names of the others
who are to form the court as well as of any spare members (rule's 128 and 129).
(b) The accused must be informed that on his giving the names of any witnesses for the
defence, all reasonable steps will be taken to procure their attendance.

(c) The accused must be afforded proper opportunity for preparing his defence (rule
128).
(d) The accused must be seen by a medical officer on the morning of the first day on which the
court is sitting for his trial and the medical officer's report should be produced to the court
immediately after it opens.
(e) In the case of a joint trial, the accused persons should be
informed of the intention to try them together and of their
right to claim separate trials if the nature of the charge
admits of it; (rule 130).
23. After confirmation (or refusal thereof), the commanding officer must satisfy himself that the
following provisions are complied with:
(a) The proceeding, if confirmed, must be promulgated as
laid down in rule 168. If not confirmed, that fact is
only to be promulgated, care being taken to ensure that
 the finding and sentence of the court are not divulged.
(b) The record of the promulgation must be entered on the proceedings, and extracts recorded in
the relevant records of the accused. No extracts should, however, be taken when the accused has
been acquitted.
(c) After promulgation, the proceeding together with the Committal Warrant, if any-must
be forwarded without delay to the proper authority (rule 191).
(iv) Conveying Officer
24. The convening officer should satisfy himself as regards the matters mentioned in paras.20
and 21 above, and in addition will ensure:-
(a) In all cases for trial by general court-martial and in all cases of indecency fraud, theft (except
ordinary theft), and civil offences, and in all other cases which present doubt or difficulty that
the charge-sheet and summary of evidence are submitted to the Deputy Judge Advocate General,
before trial is ordered.
(b) That he holds the necessary court-martial warrant empowering him to convene the
description of court-martial
that he considers appropriate, or is' otherwise Competent
under the Ordinance to convene such a court.
(c) That the court which he has decided to convene is properly
composed in accordance with sections 96 to 99 and rules
133 and 134.

Note:-In the case of theft, etc., from an officer's mesa all the officers of that mess are regarded
as interested, and are therefore, disqualified.
(d) That the president and other members are duly nominated
[section 99 (2).)
(e) When the. appointment of a judge-advocate is legally required or is desirable
(section 100), a suitable officer, with the approval of the Judge Advocate General, is to be
appointed to carry out these duties.
(f) That in trials by general court-martial, and in complicated cases, a prosecutor is
specially selected for his experience and knowledge of naval law.
(g) That the orders for trial is signed personally by him at the end of the charge-
sheet.
(h) That the convening order is signed personally by him.
(i) That necessary instructions are issued to another ship/ establishment (or shore
battery) in the vicinity to carry out either of the following court-martial ceremonial,
if is impracticable for the ship or establishment, in which the court-martial is to
be held, to do so:-
(i) Firing of the court-martial gun (N.R. 1722).
(ii) Provision of the guard for the president and members of
the court-martial (N.R. 1754 &: 1755).
25. That convening officer must ascertain whether the accused desires to have a defending
officer assigned to assist him at his trial, and if so, must endeavour to meet his wishes. Should no
suitable officer be available, the convening officer must notify the president in writing [rule
195(2)].

26. The convening officer must send to the president of the court-martial the convening order,
charge sheet and summary of evidence. Except in the case of a joint trial of two or more persons,
a separate copy of the convening order should be supplied in respect of every person to be tried.
He must send to each of the other officers appointed to form the court a copy of the charge sheet
[rule 131 (4)].
(v) The Court
27. The original convening order must be before the court and the president must satisfy himself
that the court is duly constituted according to its terms. The court must not make any alteration
or correction in the convening order, nor save as allowed by rule 143 in the charge-sheet.

28. In any case of doubt as to the constitution of the court, or any other matter affecting
jurisdiction or validity of the charges, the president should consult the convening officer before
the court assembles, or if the court has assembled, before proceeding with the trial.
29. The president is responsible for the trial to be conducted in the proper order and in a manner
befitting a court of justice. It is his duty to see that accused gets a fair trial and he does not suffer
any disadvantage through ignorance or incapacity to examine or cross-examine the witnesses.

30. He is to detail members of the court to carry out other duties so as to keep himself free to:-
(a) study the demeanour of witnesses giving evidence. This will help him in assessing the
value of evidence given, and
(b) follow the summary of evidence and note and discrepancies between evidence given at the
trial and that given at the summary of evidence.
31. The judge-advocate, if appointed, otherwise the president is responsible for the accuracy of
the record of the proceedings of the court. It is important that evidence is carefully recorded and
written in a way that the confirming and reviewing authority are able to read and understand it.

32. The president should normally appoint a member to maintain a list of all documents
produced as exhibits before the court, as well as, be responsible for their systematic arrangement
and safe custody until the close of the trial. Each of such exhibits shall be marked with a
reference letter starting from "An and signed by the president or the judge-advocate on its
admission. This member should ensure that all exhibits shown to the prosecutor, the defence, or
the witnesses are returned to him.
33. The full name and description of the accused should be entered on the first page of
proceedings.
34. Care should be taken that, whenever a board of inquiry has been held, the relevant certificate
is properly completed. (See note 10 to rule 135.)
35. Any person addressing the court, or examining or cross-examining a witness should always
do so standing.
36. Every witness, including the officer producing the service records of the accused, must be
sworn or affirmed in the presence of the accused to whom his evidence refers; he must not be
examined on a former oath/affirmation taken in the presence of another accused person. The
prosecutor or other person producing documents must be sworn/affirmed. By the custom of
court-martial, however, the accused is allowed to hand in letters and certificates of character
purporting to be in the hand-writing of absent officers or former employers, and unless there is
reason to doubt their authenticity, they may be accepted.

37. The evidence will usually be taken down in narrative form. Any question and answer may,
however, be taken down verbatim if desired by the prosecutor or the accused or considered
necessary by the court. If there is no shorthand writer, the president is to appoint a member of
the court to take down the proceedings of the court in longhand.

38. When original documents are not retained by the court and copies are attached to the
proceedings, it must be stated in the proceedings that the copies have been compared with the
originals and found to be correct. As a rule, it is preferable to attach copies and not original
documents, to the proceedings.
39. In accepting certified true copies of extract from official records or books, attention should
be given to paras.8, 10, 11 and 21 (i) above. Where these documents are given in evidence it is
sufficient to record upon the proceedings the mere fact of their production without setting out the
facts which they purport to prove, but the record of the evidence should always show that a
witness identified the accused as the person to whom the particular document relates.

40. A certified true copy of a record in an official register book or document is sufficient
evidence thereof, and it is not necessary, as a rule, for the court to compare the copy with the
original register, book or document.

41.Where the value of arms, ammunition, equipment of public clothing lost or damaged is
proved, the accused, if convicted should be sentenced to be put under penal deductions,
notwithstanding the fact that he may also be sentenced to be dismissed from the service, in case
the latter part of the sentence should be remitted.

42. If, loss or damage has been averred and proved penal deductions should be awarded, so that
compensation may be made.

43. The proceedings of the court-martial are to be recorded in form IC as given in the Fourth
Appendix, with such variations as required.

44. Where two or more persons are charged and tried jointly on a charge-sheet, only one set of
proceedings should normally be used, the relevant pages of the form being adapted accordingly
and the replies of each of the accused to the questions set out therein being separately recorded.
A separate sheet, however, should be used for the finding and proceedings on conviction and for
the sentences in each case.

45. Where the trial proceeds on more than one charge-sheet, necessary amendments should be
made in form to provide for the insertion of the charge-sheets in the proceedings.

46. The charge-sheet is to be inserted in the proceedings after page on which the plea of the
accused to the charge is recorded. All other documents are to be attached at the end of the
proceedings in the order of their production to the court.

47. Documents, other than those which are produced as exhibits, are to be attached to the
proceedings as Annexures and numbered serially I, II etc. Articles produced before the court as
case property are to be labelled and serially numbered as Article Nos. 1, 2 etc. One of the
member is to be made responsible for their systematic arrangement and safe custody until the
close of the trial.

48. In case of a plea of "Guilty”, the summary of evidence is to be annexed to the proceedings.
In case of a plea of "Not guilty", it will be annexed if it or any part of it has been put in evidence
at the trial. In other cases the summary will merely be enclosed with the proceedings when sent
to the confirming officer.
49. All erasures of written or printed matter, and all interlineations and corrections should be
initialed by the president or judge advocate.
50. The pages of the proceedings, as recorded in form "IC" of the Fourth Appendix, are to be
numbered consecutively up to the end, i.e., up to the recording of the sentence. In case of
revision, the later proceedings are added at end, and the numbering of pages carried on. The
proceedings are to be followed by:-

(a) the exhibits, together with a tist :

(b) the list of articles or case property produced before the
court:
(c) the Annexures viz., other documents not forming part of the proceeding i.e.,
applications, if any, moved before the
court, summary of evidence etc. An index of the proceedings exhibits etc., is
also to be made out and attached as
a frontispiece to the proceedings clearly indicating the number of pages/items
under each heading.
51. Care must be taken that the proceedings are both signed and dated by the president.
(vi) Duties of the Prosecutor
52. For the general duties of a prosecutor see rule 172.

53. Before the trial, the prosecutor should have previous knowledge of the subject matter of the
charge or charges. For that reason the officer detailed as prosecutor must make it his business to
acquaint himself with the circumstances; and assure himself that the various rules relating to
procedure before trial have been complied with. He will, normally be the commanding officer
who has carried out the investigations. The court will look to him for an explanation of any
detect or omission apparent. or alleged by tie accused;

54. On being detailed for duty, he should:-

(a) Obtain a copy of the charge-sheet and of summary of evidence, and enquire whether
there is any correspondence or other material relative to the case, which he should
peruse and note.
(b) If he thinks there is any legal defect, irregularities or serious omission in either the
charge-sheet or the summary of evidence, he should refer to the commanding officer
of the accused. The ability to detect irregu1arities connotes a working knowledge’s of the
rules under the Ordinance and, of the law of evidence.
(c) Satisfy himself that provision of rules 128, 129, and (in the case of joint, trials) 130
have been complied with.
(d) Satisfy himself that proper steps are being taken to secure
the attendance of all, necessary witnesses.
(e) Obtain a record of the accused's service and character for production at the trial if
required. This, form must be signed by the officer having the custody of the documents of
the accused.
(f) Consider whether an opening address is desirable or is likely to be required from him by the
court. [Rule 149 (b)]. If so, prepare such an opening ad4ress, setting out in the form of a
narrative the facts which are alleged against the accused, and the nature of the evidence by
which those facts are to be proved. The opening address must be as impartial as he can make it
free from unnecessary comment, denunciation or prejudice. There must be no reference in into
any allegation which is not, to be proved in evidence subsequently at the trial. An opening
address is not ordinarily required in disciplinary cases of a simple character, but is valuable
where accounts are involved, or the evidence is largely circumstantial.
(g) On the morning of the trial obtain from the Executive Officer (or other officer), and. take
with him to the court, a certificate by a medical officer, stating that he has examined the accused
on that morning and that he is fit for trial.
55. The duties of the prosecutor at the trial are as follows:-
(a) On the opening of the court, the prosecutor presents the medical certificate to the
president.
(b) If any material witness is absent, the prosecutor should in form the court at once, and
if necessary apply for an adjournment (rule 209).
(c) If a board of inquiry has been held respecting a matter Upon
which a charge against the accused is founded, the prosecutor should hand
to the court a list of the names of the officers who sat on the board of inquiry.
(d) As to the prosecutor's ri.sht to address the court and call witnesses in reply in the
event of a special plea to the juris diction of the court; or a plea in bar of trial, see rules 142,
144 and 145.
(e) Where the accused pleads "Guilty", the duties of the prose- cutor are confined to
calling such witnesses as may be necessary if the summary be insufficient [rule 147 (2)] and
producing the service records of the accused.
Note:-If the accused in a statement in mitigation says something
which is inconsistent with his plea of "Guilty", the prosecutor should call the attention of the
court to rule 147(4), and prepare to call witnesses as on a plea of "Not guilty".
(f) Where the accused pleads "Not guilty", the prosecutor makes his opening address, if
any, and if it is in writing reads it and hands it in, and calls his first witness.
(g) Before calling his witnesses, and as the case proceeds, the prosecutor must consider
whether he should call all those whose evidence is in the summary of evidence and whether
it is his duty to call as a witness any person whose evidence is not contained in the
summary (rules 205 and 206).
(h) As to accomplices as witnesses for the prosecution, see para.18 above.
(i) After a witness for the prosecution has been sworn or affirmed, the prosecutor will
ascertain the witness's number, rank, name, ship or establishment address, occupation etc.,
as may be material and will elicit from the witness the relevent facts to which the
witness can speak. This may be done by means of questions of a non-leading character (see
Chapter V, paras.103 and 104), or by permitting the witness to tell his own story,
questions being subsequently asked to make good any omissions. A series of short simple
questions will generally assist the witness to recount facts in chronological order, and
the president or judge-advocate in making the record.
(j) The rules which govern cross-examination ale described in Chapter V, paras.107 to 115.
The limits within which re- examination is permitted are set out in para.116. It may happen
that a question in cross-examination has been so framed as to compel the witness to
answer simply "Yes" or "No", whereas there is within the prosecutor's knowledge an
explanation which should in fairness be made. In such a case the prosecutor may in re-
examination refer the witness to that question and answer and ask him if he has
anything to add or explain:
(k) The prosecutor should not dismiss a witness until he has ascertained whether the court
desire' to question him and until provisions of rule 212 have been complied with.
(I) The prosecutor must take care that each exhibit which he desires to put before the court
is produced and identified by one of his witnesses. If an exhibit (e.g. the property alleged to
have been stolen) is to be referred to by more Hll'1) one witness each witness who
refers to it must be invited to look at the exhibit, and say whether he identifies it~ If the
prosecutor is himself producing documents he should do so, after being sworn or affirmed as a
witness, after he has called all other witnesses for prosecution (rule 14g(d)]. Neither the
prosecutor nor a witness may refer to the contents of a document which is not before the court,
unless evidence is given accounting for its absence (see Chapter V, paras.76,77).
 (m) .The prosecutor having called his witnesses the case for the prosecution is closed. The
subsequent proceedings depend upon the exercise by the accused of his rights and are fully
setout in rules ISO, 151 and 152.
(n) If the accused calls any witnesses to the facts, it, is the duty of the prosecutor to
assist the court to test the value of their evidence by cross-examination. The result of omi-
ssion to cross-examine is frequently that the evidence for the defence stands
unchallenged, and the prosecutor cannot properly, in a subsequent address, characterise as
untrue a defence which he has not attempted, by questions to the witnesses at the proper
time, .t 0 impugn. Cross-examina

Page no. 190 and 191 not scanned

be alleged in defence in so far as this matter is or should be within the witnesses's knowledge;
see Chapter V, paras.107-113. As to injurious questions, see para.110.
(d) The defending officer may take objection to any question put the prosecutor to a witness for
the prosecution on one of the following grounds; the objection should be made if possible before
the witness answer:-
(i) That it is a leading question.
(ii) That it invites hearsay, or an account of an involuntary confession, or evidence of the
accused's bad character when that character has not been put in issue, etc. (see Chapter V,
para.60)
(e) At the close of the case for the prosecution, the defending officer
may submit that the accused has no case to answer, and therefore
should not be called upon for his defence, because the prosecution
have not produced evidence in support of on or more essentials in
the charge, [rule 150(2)1.

Note:-This submission must be to the effect that there is no evidence at all on the point or
points, and not that the evidence is untrustworthy.
(I) Where a witness whose summary of evidence has not been recorded, is called by the
prosecutor, the defending officer may apply for an adjournment or postponement of cross-
examination (rule 206).
(g) The defending officer is entitled to consult the judge advocate, if one has been appointed,
on any question of law or procedure relative to the charge or trial [rule 203(1)1.
(h) The defending officer must throughout the proceedings treat the court with respect and
candour.

CHAPTER IX
SERVICE PRIVILEGES

(1) Legal States or Officers and Sailors.

1. Legal status or officers and sailors -A person who joins the Bangladesh Navy, whether as an
officer or as a sailor does not cease to be a citizen. His official character is super-imposed upon
his civil character, and does not obliterate it. At the same time it has been found necessary, or
desirable to modify in certain minor respects his status as a civilian, in some cases by imposing
restrictions and in others by conferring immunities and privileges.
2. Under the criminal law. - So for as the criminal law is concerned, the position of an officer
or a sailor is the same as that or a civilian. If he commits an offence against the ordinary criminal
law' he can be tried and punished by the civil courts just like a civilian, subject, however, to the
privilege given by section 107 of the Ordinance to the prescribed naval authoritY1 to claim him
for trial by court-martial, (unless the offence is one of those mentioned in section 79 of the
Ordinance andcommitt6d in circumstances which exclude trial by court-martial).
3. III civil matters. - In the case of civil rights, duties and liabilities there is a greater difference
between the position of a person subject to naval law and that of an ordinary citizen. Certain
privileges are granted to the former under sections 22 to 27 of the Ordinance, while as to others
section 28 lays down that the rights and privileges specified in the said sections shall be in
addition to any other conferred on the service personnel of the Army, Navy and Air Force
generally by any other law for the time being in force.

(ii) Privileges under the Navy Ordinance, 1961

4. Pay and allowances protected. -The most important privilege conferred by the Navy
Ordinance is that by section 22. The pay and allowances of every person subject to the
Ordinance are protected from any deductions other than those authorised by or under that
Ordinance or any other enactment. or prescribed by the Government. Deductions authorised by
the Ordinance are given in section 82 and those prescribed by the Government in rule 280.
5. Remedy of persons aggrieved. - Section 23 of the Ordinance provides statutory remedies to
officers and sailors who deem themselves wronged by any superior officer. All complaints or
application for redress of grievances, (other than those against convictions by a naval tribunal)
and the, method of submitting these to appropriate authority are described in rules 29 to 37. As
to the remedy against the finding and sentence of a court martial see sections 134 to 138.
6. Immunities from attachment and arrest. - Sections 24 to 26 grant immunities to persons
subject to the Ordinance in respect of attachment of their pay, allowances, arms, clothes,
equipment, accoutrements, and other necessaries, in satisfaction of any decree or order passed by
any civil or revenue court or revenue officer. Similarly members of a court-martial, witnesses
and others attending the court on duty, are immune from arrest by civil or revenue process, while
proceeding to, attending, or returning from the court-martial.
7. Priority in respect of litigation. - If a person subject to Naval Law has suit or other
proceeding pending in a civil court, he is entitled, under section 27 of the Ordinance to claim
priority for the disposal of his case. On presentation of a certificate, either personally, or through
some one else from his commanding officer that he has either been granted leave of absence, or
has applied for leave, for .the purpose of prosecuting or defending any such suit of proceeding,
the court is bound to arrange, so far as may be possible, for the hearing and final disposal of the
case within the period of leave so granted or applied for. No fee is payable to the court in respect
of the presentation of any such certificate or of any application for priority for the hearing of the
case.
When an officer or sailor has a case pending against him before a criminal court, every such
court is bound, as far as may be possible, to arrange for the early hearing and final disposal of
such case.
(iii) Privileges under other Statutes
8. Pension protected. - All Government pensions, which include naval pensions are protected
from attachment in the execution of the decrees of civil courts.
(a) The Pensions Act. 1871:
"SECTION ll - No pension granted or continued by Government on political considerations, or
on account of past services or present infirmities. or as a compassionate allowance, and no
money due or to become due on account of any such pension or allowance, shall be liable to
seizure, attachment Dr sequestration by process of any court in Bangladesh, at the instance of a
creditor, for any demand against the pensioner, or in satisfaction of a decree or order of such
court.

SECTION 12-All assignments, agreements, orders, sales and securities of every kind made by
the person entitled to any pension, pay or allowance mentioned in section 11, in respect of any
money not payable at or before the making thereof, on account of any such. pension, pay or
allowance, or for giving or assigning any future interest therein, are null and void."
(b) The Code of Civil Procedure; 1908
SECTION 60, proviso. (g) specifically lays down that stipends and gratuities allowed to
pensioners of the Government shall not be liable to attac1inient and sale in execution of a
decree.

9. The Code of civil Procedure. 1908. - order XXVII provides that where any officer, soldier,
sailor or airman, actually serving in such capacity is a party to a suit and cannot obtain leave of
absence for the purpose of prosecuting or defending the suit in person, he may authorise any
person to sue or defend in his stead. This authority is to be in writing and shall be signed in the
presence of his commanding officer.
10. The Soldiers (Litigation) Act, 1925. - This Act gives special protection to persons subject
to service law, whilst serving under war conditions, in respect of civil and revenue litigation.
[For full text of the Soldiers (Litigation) Act, 1925 and the. Seamen (Litigation) Rules, 1944 See
NR Part I Appendix xvii and for their extent and applicability see Appendix XVIII thereof]
11. The Stamp Act, 1899. - Schedule I exempts from stamp duty receipts for pay and
allowances given .by sailors when serving in such capacity.

CHAPTER X
DUTIES IN AID OF THE CIVIL POWER AND MARTIAL LAW
Note.-As regards martial law, see para.7 below
1. Unlawful assembly, riot and rebellion. - An assembly which
through the action of those composing it is likely to cause a disturbance of the public peace .is an
unlawful assembly. As soon as an act of violence is committed it becomes a riot; while - if the
riot is committed with the intention of waging war against Bangladesh, it becomes an
insurrection or rebellion.

2. Relations of Civil and Military Authorities. - An officer called on to act in case of sudden
tumult will seldom have any knowledge of the intention of the mob: For this reason, and to
protect him from the serious consequences of a failure to appreciate the situation correctly, he is
directed to take his instructions from a magistrate, whenever possible, and, in the absence of a
magistrate, to act only when the public security is manifestly endangered. The obligation lies
upon the magistrate, when he is present or within; reach, to use al1 the ordinary means at his
disposal to preserve public order. If further aid is required, he is empowered to cal1 for military
assistance, and the officer to whom the requisition is addressed will act as directed in this
Chapter. His action must be limited to the dispersal of assembly, and, subject to the orders of the
magistrate, to the arrest and detention, but not the punishment, of the rioters. He must, moreover,
use as little force as is consistent with these objects. If he is compel1ed to, act in the absence of
the magistrate, and in anticipation of a requisition for troops, he should be even more careful to
use no more force than is absolutely necessary.
3. Powers and Duties of Civil Authorities. - The civil authorities have power, under the
ordinary law, to disperse, unlawful assemblies and suppress rioting and disturbance. If their
force is insufficient for the purpose, the civil authorities are empowered to cal1 for military
assistance. The Code of Criminal Procedure, after providing for the dispersal, by means of the
police and ordinary citizens called in to their aid, of unlawful assemblies likely to cause a
disturbance of the public peace, continues as follows:-

SECTION 129. - lf any such assembly cannot be otherwise dispersed, and if it is necessary for
the public security that it should be dispersed, the Magistrate of the highest rank, who is present,
may cause it to be dispersed by military force.

SECTION 130.-(1) When a Magistrate determines to disperse any such assembly by military
force, he may require any commissioned or non-commissioned officer in command of any
soldiers in Bangladesh Army to disperse such assembly by military force, and to arrest and
confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to
arrest and confine in order to disperse the assembly or to have them punished according to law.

(2) Every such officer shall obey such requisition in such manner as he thinks fit, but in so doing
he shall use as little force, and do as little injury to person and property, as may be consistent
with dispersing the assembly and arresting and detaining such persons. Where such a course is
feasible the requisition should be given in writing, but it is clear that this will often be
impossible.
For the purposes of sections 128 to 131 of the Code of criminal Procedure, references to officers,
non-commissioned officers and men of the Bangladesh Army include references to
corresponding ranks of the National Guard and the Territorial Force. See section 15 of the
National Guard Act 1950 and section 18 of the Territorial Force Act, 1950.

Military assistance is, it will be seen, not to be called for unless the civil force is inadequate (of
this the civil officer is the judge) but when called for must be accorded. The strength and
composition of the force, the amount of ammunition to be taken and the manner of carrying out
the operations, are matters for the decision of the military authorities alone. The degree of force
which may lawfully be used depends on the nature of the occasion, for the force used must
always be strictly limited by the necessity of the case and proportioned to the end to be attained,
which is the dispersal of the assembly and the execution of such orders as the Magistrate may
pass in respect of the arrest and detention of its members.. It has been repeatedly stressed that the
primary factor of policy whenever, circumstances unfortunately necessitate the suppression of
civil disorder by military force within Bangladesh is the use of the minimum amount of force
necessary to secure the object in view.

4. Magistrate not available. - It may, however, happen that a serious situation arises when
there is no magistrate within reach. This is .provided for in the next section of the Code.

SECTION 131.--When the public security is manifestly endangered by any such assembly, and
when no Magistrate can be comIl1unicated with, any commissioned officer of the Bangladesh
Army may disperse such assembly by military force, and may arrest and confine any persons
forming part of it, in order to disperse such assembly or that they may be punished according to
law; if, while he is acting under this section, it becomes practicable for hint to communicate with
a Magistrate he shall do so, and shall thence-forward obey the instructions of the Magistrate as
to whether he shall or shall not continue such action.
This section confers powers to act without the presence of a Magistrate only on commissioned
officers of the Bangladesh Army and then only when the emergency is so serious that the public
security is manifestly endangered and it is not possible to communicate with a magistrate. As
soon as it becomes possible to communicate with a magistrate, the officer must do so, and must
obey his instructions as to stopping or continuing his action. The principle laid down in the
second sub-section of section 130 applies also to action under this section.
Under section 131 of the Code of Criminal Procedure, the power dispersing an unlawful
assembly in the absence of a Magistrate can only be exercised by a commissioned officer. This
power cannot be exercised by a non-commissioned officer. The lack of such power, however, .in
no way affects the right of a non-commissioned officer to take such action as may be necessary
in the exercise of the right of private defence under the ordinary civil law to safe guard the lives
of himself, the men under his command and other persons to protect any property against
robbery, mischief, criminal trespass, or fire.

5. Firing on Assembly. - When an officer is required by a Magistrate (as in para.3 above) or

determines (as in para.4) to disperse an assembly by force, he will, if . his detachment is not
already organised in platoons and sections and does not exceed 40 men, tell it off into four
sections, if it exceeds 40 men, he will tell it I;)ff into more sections than four. He will, before
taking action, adopt the most effectual measures possible to explain to the people that, if
necessary, fire will be opened and that if firing becomes necessary the fire of the troops will be
effective. If he is of opinion that it is necessary to fire, but that the fire of a few men will attain
the object of dispersing the assembly he will personally give the command to a few specified
men to fire. . If a greater effort be required, he will personally give the command to one of the
sections to fire. He will, when telling off the sections, clearly indicate to the troops the officer or
non-commissioned officer who is to order each section to fire, should it be necessary for more
sections than one to fire at a time; and no order to a man or section to fire will be given by any
person except himself or the officer or non-commissioned officer so indicated. Care must be
taken not to fire on persons separated from the crowd who do not appear to be acting with it or
inciting it, or over the heads of the latter. The firing must be carried out with steadiness and be
stopped the moment it becomes unnecessary. Firing with blank is forbidden. The fire, if firing is
necessary, must be effective. Firing on specified ring leaders may sometimes be the most
effective way of dispersing a crowd, and will be justified if it is necessary and likely to obviate
greater bloodshed. Machine guns should not be employed to disperse rioters if the object to be
attained can be secured without recourse to this weapon, and if so employed, the fire should be
most carefully controlled.

6. Protection from prosecution. - The interest of officers, soldiers and others are protected by
section 132 of the Code of Criminal Procedure, which is as follows:-
SECTION-132-No prosecution against any person for any act purporting to be done under
this Chapter shall be instituted in any Criminal Court, except with the sanction of the
Government; and
(a) no Magistrate or police officer acting under this Chapter in good faith
(b) no officer acting under section 131 in good faith.
(c) no person doing any act in good faith, in compliance
with a requisition under section 128 or section 130,
(d) no inferior officer, or soldier, doing any act in obedience
to any order which he was bound to obey.
shall be deemed to have thereby committed an offence.
 7. Martial law. - So long as the disturbances amount to no more than a riot, the measures
contemplated in this Chapter may be expected to suffice to restore order. Since the crowd is not
acting in general defiance of the Government, the danger is, as a rule, local and disappears with
the dispersal of the rioters and the arrest of the ring leaders. But where the disturbances are
recurrent, widespread concerted and directed against the constituted authorities it becomes the
duty of the executive in exercising, the common law right of repelling force by force, to assume
such exceptional powers and to take such exceptional measures, as may be necessary for t4e
purpose of restoring order. The state of things thus set up is generally known as "Martial Law".
 THE NAVY ORDINANCE. 1961

ORDINANCE No. XXXV OF 1961

An Ordinance to consolidate and amend the law relating to the Government and Discipline of the
Bang1aMsh Navy

Where as it is expedient to consolidate and amend the law relating to the government and
discipline of the Bangladesh Navy;

Now, THEREFORE, in pursuance of the Proclamation of the seventh day of October, 1958,
and in exercise of all powers enabling him in that behalf, the President is pleased to make and
promulgate the following Ordinance:

CHAPTER I

PRELIMINARY

1. Short title and commencement.-(1) This Ordinance may be called the Navy Ordinance
1961.

(2) It shall come into force on such date as the Government may, by notification, in the
official Gazette appoint,

NOTES

1. The Ordinance was brought into force with effect from 1st March, 1962 and adapted in
Bangladesh with textual amendments by the Navy (Amendment) Ordinance, 1977 (XLIII of
1977)

2. Notification. See section 4(xxv)

 2. Persons subject to this Ordinance.-(J) The following persons shall be subject to this
Ordinance, wherever they may be, namely:

(a) Officers on the active list officers of the Bangladesh Navy, and sailors of the
Bangladesh Navy;

(b) officers on the retired or emergency list of officers of the Bangladesh Navy, when
ordered on any duty or service for which as such officers they are so liable;
(c) persons belonging to any of the Bangladesh Naval Reserve Forces when called up for
training, exercise or service (including active service) in pursuance of regulations;

(d) Persons belonging to any auxiliary force raised in Bangladesh to which this Ordinance is
applied to such extent and subject to such conditions as may be prescribed.
(2) The following persons, not otherwise subject to this Ordinance shall be so subject to such
extent an under such conditions as the Government may direct:

(a) Persons subject to the Army Act, 1952 (XXXIX of 1952) or the Air Force Act, 1953 (VI of
1953)-

(i) When seconded for service with the Bangladesh Navy: or

(ii) When embarked for passage on board any of the naval ships; shall be subject to all the
provisions of Naval law.

(b) Persons, other than those mentioned in the last preceding clause, when embarked as
passengers on board any of the naval ships;
(c) persons who are employed by, or are in the service of, or are followers of, or accompany
any body or member of the naval force on active service;

(3) Persons not otherwise subject to this ordinance shall be so subject if they are accused of :

(i) Seducing or attempting to seduce any person subject to this ordinance from his duty or
allegiance to Government, or

(ii) Having committed, in relation to any work of defence arsenal Naval, Military or Air
force establishment or station, ships or Aircraft or otherwise in relation to the Naval,
Military or Air force affairs of Bangladesh, an offence under the official Secret Act 1923"

6. Persons mentioned in this clause includes civilians connected with the navy on active
service in the manner specified 'in the clause; e.g. contracts, news correspondents etc.

7. Naval vessels.-See section 4(xxiii).

8. Naval establishments.-See section 4(xviii).
9. Enemy.-See section 4(x).
 10. All persons subject to the Ordinance under clause (a) of sub-section (1) ate so subject. at all
times and wherever they may be, P«sons mentioned , in clauses (b), (C) and (d) and those
mentioned in sub-section (2) are only subject to the Ordinance in the circumstances given in each
case and to the extent and under conditions specified therein.

3. Secondment to Army or Air Force.- Persons subject to this Ordinance, when seconded
for service with the Army or the Bangladesh Air Force, shall be subject to the Army. Act, 1952
(XXXIX of 1952), or as the case may be, Air Force, Act, 1953 (VI of 1953), to such extent and
under such conditions as the Government may direct.

NOTE

Section 2.A of the Army Act, empowers the Government to direct by order in writing, that
any person belonging to the Army Medical Corps, be seconded for service with the Bangladesh
Navy 01' the Bangladesh Air Force. Section 3-A of the Air Force Act provides for the
secondment of persons belonging to the Air Force Medical Corps to the Army or the Navy
Medical Corps.

Section 3 of the Ordinance however, is much wider in scope, as if is not confined to persons
belongings to any "medical corps" of any of the three service, This section merely states that
whenever persons subject to this Ordinance are seconded to the Army or the Air Force, they shall
become subject to the Act Governing the service to which they are seconded, to such extent. -add
under such conditions as the Government may direct.

4. Definitions this Ordinance, unless the context otherwise requires,-

(i) "Active service" as applied to .a person subject to this Ordinance, means the time during
which such person

(a) is attached to or forms part of a force which is engaged in operations against

an enemy.

(b) is engaged in naval operations in, or is on his way to a country or place wholly or partly
occupied by an enemy, or

(c) is attached to, or forms part of a force which is in

military occupation of any foreign country ;

(ii) "Armed forces" means the Bangladesh Army, the Bangladesh, Navy and the
Bangladesh Air Force and includes their reserves when called up for training, exercise or
service
(iii) "civil offence" means an offence which is triable by a criminal court:

(iv) "civil person" means any jail or place used for the detention of any criminal prisoner under
the Prisons Act, 1894 (IX of 1894), or under any other law for the time being in force;

(v) "Chief of Naval Staff' means the flag officer appointed by the President as the Chief of
Naval Staff Bangladesh Navy, or in his absence on leave or otherwise the officer appointed by
the Government to officiate as such, or, in the absence of such officiating appointment, the
officer on whom the command may devolve in accordance with the regulations made by the
Government

(vi) "commanding officer" means the officer appointed in command ' of a naval ship, vessel or
establishment or the officer on whom such command may devolve in accordance with .the
regulations made by the Government, or, the officer, specified by the Government as the
commanding officer for the purpose of all or any of the provisions of this Ordinance;

(vii) "court-martial" means a court-martial held under this Ordinance; ,

(viii) "criminal court" means a court of ordinary criminal justice in any part of Bangladesh or
established elsewhere by the authority of the Government;
(ix) "desertion" has the meaning assigned to it by section 45 and "desert" and it6 cognate
expressions shall be construed accordingly;
(x) "enemy" includes all armed mutineers, armed rebels, armed rioters, pirates and any person
in arms against whom it is the duty of any person subject to military, naval or, air force law to
act;
(xi) "11ag officer" means an officer of the rank of Admiral of the Fleet, Admiral, Vice-Admiral
or Rear-Admiral;

(xiii) "Intoxication" has the meaning assigned to it by section 58;

(xiv) "Judge Advocate General" means a person appointed as such to give advice on matters
relating to naval law and to perform such other duties of a legal character as may arise in
connection therewith;

(xv) "Long imprisonment" means rigorous imprisonment for 11 term exceeding two year’s but
not exceeding fourteen years;

(xvi) "Mutiny" has the meaning assigned to it by section 36

(xvii) "Naval custody" means the arrest or confinement of a person in the prescribed manner
or in accordance with the usages and customs of the naval service and includes military of air
force custody;
(xviii) "Naval establishment" means an establishment belonging to or under the control of the
navy, whether within or out side Bangladesh ;
(xix) "Naval law" means the law contained in this Ordinance and the rules and regulations and
includes the usages and customs of the navy;

(xx) "Naval reserve force" means the Bangladesh Naval Reserve Forces and includes the
Bangladesh Naval Fleet Reserve, the Bangladesh Naval. Volunteer Reserve, the Bangladesh
Naval Reserve, and the Bangladesh Women Naval Reserve;

(xxi) "Naval reward" includes any gratuity or annuity for long service or good conduct or
pension and any other naval pecuniary reward:

(xxii) "Naval ship" means a ship commissioned for service in the Bangladesh Navy and flying
.the Naval Ensign;

(xxiii) "Naval vessel" means a ship or vessel, other than a naval ship, engaged in the naval
service of Bangladesh;

(xxiv) "Navy" means the regular naval forces of Bangladesh arid includes the Bangladesh
Naval Reserve Forces, when called up for training, exercise or into actual service;

(xxv) "Notification" means a notification published in the official Gazette;

(xxvi) "offence" means any act or omission punishable under their

Ordinance and includes a civil offence;

(xxvii) 'Officer' means a person holding a commission not being junior commission in the
Navy, and includes a sub-ordinate officer, and when serving under prescribed conditions, an
officer, of the Bangladesh Army or the Bangladesh Air force;

(xxviii) "prescribed" means prescribed by rules made under this Ordinance;

 (xxix) "provost-marshal" means a person appointed as such under this Ordinance and includes
any of his deputies or assistants or any other person legally exercising authority under him or
on his behalf;
(xxx) “Sailor means a person enrolled under this ordinance of or below the rank of Master
chief petty officer:

(xxxi) “regulations’ means rules made under this Ordinance;

(xxxii) “rules means rules made under this ordinance;

(xxxiii) “Service “ when qualifying institution, necessaries, book band mess, money,
goods or other property, means belonging to or connected with the army, the navy or the air
force or any part thereof;

(xxxiv) “service law” means this Ordinance, the Army Act, 1952 (XXXIX of 1952) the
Air Force Act, 1953 (VI of 1953), and the rules and regulations made there under;
(xxxv) "short imprisonment" means simple or rigorous imprisonment for a term not exceeding
two years;
(xxxvi) "subordinate officer" means a person appointed as an acting sub lieutenant, a
midshipman or a cadet in any 6ranch of the navy;
(xxxvii) “superior officer" when used in relation to a person subject to this Ordinance, means
an officer or a sailor not below the rate of petty officer who is of rank or rank higher than that
person, or is senior to that person in the same rank to rank, and as regards persons serving
under such conditions as the Government may direct, an officer, junior commissioned officer,
warrant officer or non-commissioned officer of the Bangladesh Army or the Air Force;
(xxxviii) all words expressions used herein and defined in the Penal Code (Act XLV of 1860),
and not herein before defined, shall have the meanings respectively assigned to them in that
Code.

NOTES

1. Expression "Unless the context otherwise requires" means that the words defined in this section are also used in
a number of other sections with meanings sometimes of a wide and sometimes an obviously limited character.

2. The expression "means" indicates that the term defined is used as a synonym. for a
longer or more cumbersome expression.

3. The expression "includes" means that wherever the law, as it stands, applies to the class. of persons or things
indicated by the first tet\11, it will also apply to the class or classes who are "included" though the natural meaning of
the English language might not indicate that it would apply to the latter.

4. A person may be an active service even before embarkation for the seat of operations if the circumstances are
such that he can reasonably be held to be attached to, or, to form part of, a force as is !specified in this clause.
 5.. Enemy-See clause, X.

CHAPTER II

SPECIAL PROVISIONS FOR THE APPLLICATION OF

THIS ORDINANCE IN CERTAIN CASES

5. Application of this Ordinance to certain forces under the Government.-The

Government may, by notification, apply, with or without modification all or any of the provisions
of this Ordinance to any force raised and maintained in Bangladesh and suspend operation of any
other enactment for the time being applicable to the said force.

NOTE

Notification-see section 4(xxv).

6. Special provision as to rank and command in. certain cases.-Any person or class of
persons subject to this Ordinance under clause (c) of sub-section (2) of section 2:

(1) Shall be so subject as Officers, Master Chief Petty Officers, Chief Petty Officers or
Petty Officers as the Government or any officer authorized by it in that behalf may direct;

(2) in respect of whom no direction under clause (I) is in force, shall be deemed to be of a
rank lower to that of a petty officer;

shall be deemed to be under the commanding officer of the naval ship, naval vessel or naval
establishment, if any, to which he is attached, and if he is not so attached, under the command
of any officer who may, for the time being, be named as his commanding officer by the officer
commanding the force with which such person may be serving, or of any other prescribed
officer, and if no such officer is named or prescribed, under the command of the said officer
(3)commanding the force;
 (4) Shall not be placed under the command of an officer of official rank lower to that of such
person if there is present.

at the place where such person is any officer of higher rank under whose command he can be
placed.
Note
1. Commanding Officer.-See section 4(vi)
2. Prescribes.-See section 4(xxviii).

7. Officers exercising powers in certain cases.-(1) Whenever persons subject to this

Ordinance are serving, whether within or outside' Bangladesh under an officer not subject to this
Ordinance the Government may prescribe the officer by whom the powers which, under this
Ordinance; may be exercised by a commanding officer, shall as regards such persons, be
exercised.

(2) The Government may confer such powers either absolutely or subject to such restrictions,
reservations exceptions and conditions as it may think fit.

NOTES

1. Prescribed.-See section 4(xxviii).

2. Bangladesh Navy personnel, whilst under training with the Royal Navy on board any of
H.M. Ships or in any of the H.M. naval establishments, shall be governed by the (U.K.) Naval
Discipline Act, 1958 Section 111(6) (reproduced below) deals with breach~ of discipline by
members of the Armed Forces of the Commonwealth and Foreign Governments under training
with the Royal Navy. This section has also been made applicable to the Bangladesh Navy so as to
ensure that minor offences are dealt with by the R. N. authorities in the same manner as if the
offence was committed by a R.N. personnel. The application of this section to Bangladesh Navy
would not mean that an offender would necessarily be tried 'and punished only by the R.N.
authorities; in some cases, of grievous nature it might be more appropriate to send or call the
offender back to Bangladesh and dealt .with under this Ordinance:

"NAVAL DISCIPLINE ACT,1958 Section 111(6).-A person not other wise subject to this Act.
being a member of-

(a) Any of the armed forces of the Crown raised outside the United Kingdom; or

(b) any armed forces other than armed forces of the Crown, not being, in either case forces
excepted from this sub-section by directions of the Admiralty is subject to this Act when
ordered to be trained or exercised on board any of Her Majesty's ships or in any of Her
Majesty's naval establishments.

8. Exercise or powers vested in holder or naval office. Any power or jurisdiction given to, and
any act or thing to be done by, to, Qr. before any person holding any naval appointment may be
exercised by, or done by, to, or before any other person for the time being authorized in that
behalf according to rules or customs of the navy.
 NOTE

The object of this section is to prevent legal difficulties arising from the use of the service in
regard to the delegation of authority by one officer

to another. It will allow orders of a flag or other officer to be signed by the staff officer as
authorized by the custom of the service; but the confirmation of court-martial, and warrants or
other documents relating to imprisonment or detention, or the infliction of any other punishment,
must be signed by the officer himself. So too must an order convening a court-martial. (See ) part
I, Chapter II, para 9.)

9. Power to declare persons to be on active service.-Notwithstanding anything contained in

clause (i) of section 4, the Government may, by notification, declare that any person or class of
persons subject to this Ordinance, shall, with reference to any area in which they may be serving
or with reference to any provision of this, Ordinance or of any other law for the time being in
force, be deemed to be on active service within the meaning of this Ordinance.

Note

The . section is intended to empower the Government to declare any person or class of
persons who are subject to the Ordinance, ,to be on active service for certain purposes, even when
the conditions of "active service" as defined in section 4(i), do not apply. Such a declaration must
be made by a notification published in the Official Gazette. (See also Part I, Chapter II, para 9.)
.

CHAPTER III

APPOINTMENT, COMMISSION AND ENROLMENT

10. Eligibility for employment.-No person who is not a citizen of Bangladesh shall except
with the consent of the Government signified in writing, be eligible for appointment or enrolment
in the Bangladesh Navy.
 11. Appointment and commission.-(t) Officers other than subordinate officers shall be
appointed by commission by the President.

(2) Subordinate officers shall be appointed in such manner and shall hold such rank as may be
specified in the regulations.

12. Enrolment.- (1) The terms and conditions of service of sailors, and the manner and
procedure of their enrolment shall be such as may be specified in the regulations.

(2) No person shall be enrolled as a sailor in the Navy for an initial-period of engagement
exceeding such period as, may be prescribed.

(3) Notwithstanding' anything contained in any other law for the time being in force.

(a) the enrolment of any person under this Ordinance shall be binding on him both during
his minority and after he attains majority;

(b) neither the parent or guardian of a minor duly enrolled under this Ordinance nor any
other person shall be entitled to claim custody of the said minor as against the Government
or any of its officers or other persons set over him

NOTES

1. Enrolment. See Part I, Chapter II, paras 17-23. As regards conditions of service etc., see
Navy Regulations, Part I. The prescribed form of enrolment will be found in the Eighth Appendix
to the rules. It is to be remembered that making a false answer at the time of enrolment, to certain
questions set forth in the Described form, Is an offence punishable under section 69 of the
Ordinance.

2. The initial period of engagement is prescribed in Rule 8.

13. Validity of enrolment.-Every person who has for the space of three months been in receipt
of pay as a person enrolled under this Ordinance and been borne on the books of any naval ship
or naval establishment shall be deemed to have been duly enrolled and shall not be entitled to
claim his discharge on the ground of any irregularity or illegality in his enrolment or on any
other' ground whatsoever; and if any person in receipt of such pay and borne on the books as
aforesaid claims his discharge before the expiry of three months from his enrolment, no such
irregularity or illegality or other ground shall, until he is discharged in pursuance of his claim,
affect his, position as an enrolled person under this Ordinance or invalidate any proceedings, act
or thing taken or done prior to his discharge.

14. Attestation Every Sailor shall, on completion of prescribed period after enrolment, make
and subscribe before his commanding officer or any prescribed officer, an oath or affirmation in
the prescribed form.

NOTE

1. For the prescribed form of oath or affirmation, see the First Appendix to the rules. The
oath or affirmation must be administered by the commanding

officer of the person to be attested or by any other officer authorized by him in this behalf; see
Rule 7(2).

Attestation must normally take place as soon as possible on successful completion of the
person's probationary period. In no case must it be delayed for more than three months after it has
become due; see Rule 6(4).

CHAPTER IV

CONDITIONS OF SERVICE

15. Tenure of service.-Every officer and Sailor shall hold office during the pleasure of the
President.

NOTE

This section recognizes a will established principle of Service law. An officer holds his
Commission at the pleasure of the president, who can at any time dismiss him without assigning
a reason: no contract to the contrary unless sanctioned by statute has any legal effect. So, too, a
Sailor can be discharged at any time, and in his case the declaration made by him in enrolment
form binds him to serve for a definite period if his services are so long required. (See rules 9 and
23 respectively.)

In practice, of course the prerogative power to dismiss or discharge is not exercised arbitrarily.

An officer cannot claim as a matter of right to resign his commission when ever he pleases.
(See also note 1 to section 16.)

An officer or sailor cannot recover pay alleged to be due to him by action against the
Government in the civil courts.

16. Liability for service.-Every officer and sailor shall be liable to serve in the navy until his
services have been duly terminated by the competent authority in accordance with this Ordinance
and the rules and regulations made there under.

NOTES

1. A person once subject to the Ordinance remains subject until discharged in the proper
manner. This is what is meant by "shall be liable to serve in the navy until his services have been
duly terminated.." A career in the armed forces is a career of honour, Dot contract, based on a
special relation between the Head of the State and the officer by virtue of the commission granted
by the President. The fact that officers are said to retire, or to have short term commissions or the
use of any other form of words suggesting a time limit on the expiry of which an officer can
claim a supposed right are notions derived from contract. There are DO "rights" of this kind in a
career of honour in which the officer's sword (wl1ich he always retains) is always at the service
of the State. The Power to retain an officer in the service

at will without reasons is paralleled by the power to dismiss at will without reasons; whether the
powers should be exercised is a question which has nothing to do with their undoubted existence.

2. Until his services have been duly terminated.-See Sections 17 to 20 and rules 9 to 17
(officers) and rules 21 to 26 (sailors).

17. Termination of service.-(I) The Government may dismiss, remove, discharge or release
any officer from the service or compel him to resign or retire from the service.
 (2) Any officer may be permitted, subject to the exigencies of the service, by the Government
to voluntarily resign his commission or retire from the service.

(3) the Government, the Chief of Naval Staff', or any prescribed officer may dismiss discharge
or release any subordinate' officer or sailor from the service.

NOTES

1. For dismissal as a court-martial sentence see section 80 and rules 23

and 247.

2. For effective date of termination of service see rules 17 and 22.

3. Officers-For dismissal, otherwise than by sentence of Court-martial, removal, or release-see

Rules 9 to 14,

4. Sailors-For dismissal, discharge or release see rules 23 to 26.

5. As to furnishing a "Termination of Service Certificate" lee section

20 and rule 21.

6. Any prescribed officer mentioned in sub-section (3) means an officer prescribed by rules
made under the Ordinance; - Section 4 (xxviii). As to officer so prescribed see rule 23 to 25.

18. Release on expiry of period of engagement.-A sailor shall be entitled to be released at the
expiration of the term of serve for which he is engaged unless- .

(a) such expiration occurs,

(i) when war is imminent or existing, or

(ii) when the strength of the branch of service to which he belongs is five per cent
below its strength.
 in which case he shall be liable to continue to serve for such further period as may be
required by the Chief of Naval Staff; or

(b) he is re-engaged in accordance with the regulations.

19. Discharge or dismissal when out of Bangladesh.-(1) Any Person enrolled under this
Ordinance who is entitled under the conditions of his enrolment to be discharged or whose
discharge is ordered by competent authority, and who, when he is so entitled or ordered to be
discharged, is serving out of Bangladesh and requests to be sent Bangladesh, shall, before being
discharged, be .sent to Bangladesh with all convenient speed.

(2) Any person enrolled under this Ordinance who is dismissed from the service and who,
when he is so dismissed, is serving out of Bangladesh shall be sent to Bangladesh with all
convenient speed.

(3) Where any such person as is mentioned in sub-section (2) is sentenced to dismissal
combined with any other punishment, such other punishment, or in the case of a sentence of
imprisonment or detention, a portion of such sentence, may be inflicted before he is sent to
Bangladesh.

(4) For purposes of this section, the word "discharge" includes release, and the word
"dismissal" includes removal.

NOTES

1. Sub-section (3) of this section is permissive and must be read with sections 143, 144 and
145 which provide for the execution of sentences of imprisonment and detention.

2. On active service special arrangements for a military prison in the field are made, where
necessary. (See the second proviso to section 143.) Persons sentenced to dismissal and
imprisonment can legally be retained in such a prison to undergo tile whole or any part of their
term of imprisonment, before being sent to Bangladesh under sub-section (3) of this section.

3. Naval custody includes military or air force custody, section 4(xvii).

 20. Certificate on termination of service.-Every Sailor who is dismissed, discharged, or
released from the service shall be furnished by the prescribed officer with a certificate setting
forth

(a) The authority terminating the service;

(b) The cause for such termination; and
(c) The full period of his service in the navy.

NOTE

1. The "Termination of Service Certificate" required to be issued under this section may be
furnished to the person concerned either by personal delivery to him or by its transmission by
registered post to such person; rule 21. In the case of a person sentenced to Imprisonment which
is carried out in a civil prison. it should be sent to the superintendent of the civil prison, in which
the person is confined for delivery to the person.

2. The prescribed officer for the purpose of this section is the Drafting

Authority, rule 279.

21. Power to modify certain fundamental rights in their application to persons subject to this
Ordinance.-Subject to the provisions of any law for the time being in force relating- to the navy or
to any branch thereof the Government may, by notification, make rules restricting in such manner
and to such extent as may be specified the right of any, person subject to this Ordinance-

(a) to be a member of, or to be associated in any way with, any trade union or labour union,
or any class of trade or labour unions or any society, institution, or association, or any class
of societies, institutions or associations;

(b) to attend or address any meeting or to take part in any demonstration organised by any
body of persons for any political or other purposes;

(c) to communicate with the press or to publish or cause to be published any book, letter or
other document

NOTE
 This section empowers the Government to restrict certain fundamental rights, which may be
guaranteed by the Constitution, in such manner and to such extent as may be specified by rules
made under the Ordinance, see rules 38 to 41.

CHAPTER V

SERVICE PRIVILEGES

22. Authorized deductions only to be made from pay. The pay and allowances of every
officer and sailor due to him as such under any regulation for the time being in force, shall be
paid without any deduction other than the deductions authorized by or under this or any other
enactment or prescribed by the Government.

NOTE

Deduction authorized under the Ordinance are given in section 82, and those prescribed by the
Government in rule 280.

For an example of deductions authorized by "any other enactment" see Income Tax Act, 1922,
section 18, under which income tax is deducted at source.

23. Remedy of aggrieved persons. If an officer 9r Sailor thinks that he has suffered any
personal oppression, injustice or other ill-treatment at the hands of any superior officer, he may
make a complaint in accordance with the rules made under this Ordinance.

NOTES

1. The procedure for making a complaint for redress o( grievances is Prescribed in detail 'in
rules 29 to 37. Complaints may be made respecting any matter, but can be made by an individual
only. Joint or collective or anonymous petitions or representations of any kind are forbidden. A
complaint cannot legitimately be preferred to a superior officer except in the regular course
defined by the rules. It is only where the immediate superior refuses or unnecessarily delays to
redress or forward the complaint that direct application can be made to higher authority; (rule 36),
In such event, .the officer in question ought to be informed of the application being made to his
superior, and the applicant should observe in the channel of approach to the Government each
intermediate gradation of command. Although the complaint is to the Government, the interme-
diate authority is not debarred from expressing its own view of the case, and such an expression
of opinion may even in some cases suffice to render further steps unnecessary.

2. The proper treatment of complaints and grievances of a service or personal nature, is of the
utmost importance. A grievance, real or imaginary, which is not dealt with promptly and
correctly, leads to dissatisfaction and the lowering of moral and reflects adversely on the officers
concerned. Nothing could be more harmful to the discipline in the service than the feeling that a
serviceman's rights to complain to prescribed authority with a view to obtaining justice can be
denied by the administrative authorities by withholding such applications.

3. A false accusation or false statement made in preferring a complaint

under this section is punishable under section 72; but the mere fact that a complaint appears to be
baseless, or even frivolous, does not render the maker liable to punishment. As to the repetition of
baseless complaint or the submission of complaints in disrespectful language see notes to section
75.

4. A petition from a person who considers himself aggrieved by any order passed by a court-
martial, does not fall within the scope of this section. Such petitions must be dealt with under the
provisions of section 134. Before confirmation, an aggrieved person may present, at the
conclusion of the trial, a petition to the confirming authority, who 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 proceedings to which the order relates. After confirmation, a
petition may be submitted, under section 136, to the Government or the Chief of Naval Staff who
have power, under section 137, to quash the finding, and under section 138, to annul the sentence.

24. Immunity from attachment.- The arms, clothes, equipment, accoutrement or necessaries
of any officer or sailor shall not be seized, and their pay and allowances, or any part thereof, shall
not be attached under any process or direction of any civil or revenue court or any public servant,
in satisfaction of any decree or order enforceable against him.

25. Immunity from arrest for debt.-(l) No officer or Sailor shall, so long as he is subject to
this Ordinance, be liable to be arrested for debt under any process issued by, or by the authority
of, any civil or revenue court or any public servant.
 (2) The judge of any such court or the said officer shall examine into any complaint made by
such person or his superior officer of the arrest of such person contrary to the' provision of this
section, and if satisfied that the arrest was made in contravention of preceding sub-section shall
by warrant under his hand, discharge the person arrested) and may award reasonable costs to the
complainant who may recover these costs in like manner as he might have recovered costs
awarded to him by a decree against the person obtaining the process.

(3) For the making of such complaint and for the recovery of such costs, no court-fee, shall be
payable by the complainant.

26. Immunity of persons attending court-martial from arrest. (1) No president or member
or a court-martial, no judge advocate, no party to any proceeding before a court-martial, or his
legal practitioner or agent and no witness acting in obedience to a summons to attend a court-
martial, shall while proceeding to, attending, or returning from a court-martial, be liable to arrest
by civil or revenue process.

(2) If any such person is arrested under any such process, he may be discharged by order of
the court-martial.

27. Priority in respect of naval personnel’s litigation.-(I) On the presentation to any court,
by or on behalf of any officer or sailor of a certificate, from the proper naval authority, of leave of
absence having been granted to or applied for by him for the purpose of prosecuting or defending
any suit or other proceeding in such court, the court shall, on the application of such person,
arrange, so far as may be possible, for the hearing and final disposal of such suit or other
proceeding within the period of the leave so granted or applied for.

(2) The certificate from the proper naval authority shall state the first and last day of the leave
or intended leave, and set forth a description of the case with respect to which the leave was
granted or applied for and shall be duly signed and authenticated by such authority.

(3) No fee shall be payable to the court in respect of the presentation of any such certificate or
of any application by or on behalf of any such person for priority for the hearing of his case, and
every such certificate duly signed or authenticated as aforesaid shall be conclusive evidence of
the correctness of the contents thereof.
 (4) Where the court is unable to arrange for the hearing and final disposal of the suit or other
proceeding within the

period of such leave or intended leave as aforesaid, it shall record its reasons for its inability to do
so, and shall cause a copy thereof to be furnished to such person on his application without any
payment whatever by him in respect either of the application for such copy or of the copy itself.

(5) Every criminal court before which a case is pending against any officer or sailor shall, so
far as may be possible, arrange for the early hearing and final disposal of .such case.

(6) If in any case a question arises as to the proper naval authority qualified to grant such
certificate as aforesaid, such question shall be at once referred by the court to an officer,
commanding a naval ship or establishment, 01 to a superior naval authority, whose decision shall
be final.

NOTE

As to the special protection given under the soldiers (Litigation )Act, and the Rules made
there under, see Navy Regulations Part I Appendices XVII and XVIII.

28. Saving of rights add privileges under other laws-The rights and privileges specified in the
preceding sections of this Chapter shall be in addition to any others conferred on persons subject
to this Ordinance or on members of the regular Army, Navy and Air Force generally by any other
law for the time being in force.
 CHAPTER VI

OFFENCES

NOTES

1. A copy of this Chapter is to be displayed in a prominent position in the ship or

establishment for the information of the ship's company.

2. The contents of this Chapter are to be read over to the following-

(a) to new entries after they have received instructions in punishments;

(b) to re-entries before their first draft to duty, and

(c) to the ship's company once in every quarter.

3. An entry is to be made in the Deck Log whenever provisions of Note 2 have been complied
with. It is not necessary for all the sections of this Chapter to be read over at one time, it may be
read in suitable portions. The Administrative Authority during its inspection (N.R.5020) ) is to
ensure that these provisions have been complied with.

4. A separate charge is to be framed for each offence giving the statement of the offence as
well as the statement of particulars of the act, ne,1ect or omission constituting the offence (see
rule 126).

5. A charge sheet shall contain the whole issue or issues-one charge or several charges to be
tried by a court-martial at anyone time. A charge sheet shall begin in one of the following froms.
as set out in the Third Appendix to the Rules:

COMMENCEMENT OF CHARGE-SHEET

(i) The accused (rank, name, personal number, branch, naval ship/establishment), an officer
of the Bangladesh Navy, is charged with;

or

(ii) The accused (official number, name, Rank, naval ship/establishment), a sailor of the
Bangladesh Navy, is charged with;
or

(iii) The accused (personal/official number, rank, name, branch, naval ship/establishment, if
any), an officer/(a sailor) of the Naval Fleet Reserve called out for service/(under-going
training), is charged with;- .

or

(iv) The accused (name), being a person subject to the Navy Ordinance, J96J, as an officer/(a
sailor) under the provisions of section 2(2) of the said Ordinance, is charged with;

or

Where an offence has been committed by a person while subject to the Ordinance, and he has
ceased to be subject at the time he is charged (in accordance with the provisions of section 106
of the Navy Ordinance, 1961, the commencement of the charge shall be as follows;-

(V) The accused (name) is charged with having, while being (personal/official number, rank)
of the (naval ship or establishment) an officer/sailor of the Bangladesh Navy, or a person
subject to the Navy Ordinance, J96J as an officer/sailor under the provisions of section 2(2) of
that Ordinance, committed the following offence (offences), namely;
(vi) The accused (name) is charge with having, while being (personal/ official number, rank) of
the (naval ship or establishment) an officer (a sailor) or the Naval Fleet Reserve called out for
service (or when undergoing training), committed the following offence (offences), namely :

6. The statements of offences in respect of Sections 29 to 79-as set out in the Third Appendix
to the Rules-are reproduced below and they should normally be referred to before framing a
charge.

STATEMENT OF OFFENCE

Section 29-Misconduct in action by persons in Command.

the Flag Officer commanding ship

Being he Captain commanding a naval vessel.

In command of establishment

(With intent to assist the enemy).

(a) failing to use his utmost exertions to bring into action the said ship/(vessel/(establishment),
which it was his duty to bring into action.
 (b) surrendering the said ship/(vessel)/(establishment) to the enemy, when it was capable of
being successfully defended or destroyed.
(c) failing to pursue an enemy whom it was his duty to pursue; or failing to assist to the
utmost of his ability a friend whom it was his duty to assist.
(d) in the course of an action by/(against)the enemy, improperly with drawing from the
action/(from his station);
or
in the course of an action by/(against)the enemy, failing in his own person and according to
his rank to encourage the persons under his command to fight courageously.

Section 30-Misconduct in action by other officers and men :-

(With intent to assist the enemy).

failing when ordered to prepare for action by/(against) the enemy;

or

failing during action by/(against) the enemy to use his utmost exertion

to into execution the lawful orders of his superior officer.

Section 31-Obstruction of operations:

(With intent to assist the enemy). wilfully delaying/(discouraging) an action/(a service), which
had been commanded on the part of the Bangladesh forces/(a force co-operation with the
Bangladesh forces)
Section 32-Corresponding with, supplying or serving with the enemy:(With intent to assist the
enemy).
(a) Communicating with/(giving intelligence to) the enemy.
(b) Failing to make known to the proper authorities information

received by him from the enemy.

(c) Furnishing the enemy with supplies.

(d) When a prisoner of war serving with (aiding) the enemy in the

Prosecution of hostilities;

or

in the prosecution of measures calculated to influence morale;

or

in a manner not authorized by international used.

Section 33-Sleeping on watch or abandoning post :
(1) Being in the presence/(vicinity) of,/or, being under orders to be prepared for action by or
(against) the enemy, abandoning his post improperly;/(or, sleeping upon his watch).

(2) Improperly abandoning his post';

or

Sleeping upon his watch.

Section 34-Neglect of duty :

Neglecting to perform a duty imposed on him ;

or

Negligently performing a duty imposed on him.

Section 36-Mutiny :
(I) (a) Taking part in a mutiny involving use of (the threat of the use of) criminal force;
or
Taking part in a mutiny having as an object the refusal (the avoidance) of a duty (a service)
against the enemy, (in connection with operations against the enemy);
or
Taking part in a mutiny having as an object the impeding of the performance of a duty (a
service) against the enemy, (or, in connection with operations against the enemy).

(b) Inciting a person subject take service law to take part in a mutiny (continue as in
preceding charges).

(2) Taking, part in a mutiny; or, inciting a person subject to service law to take part in a
mutiny.

(3) Endeavoring, to seduce a person subject to service law from his duty/allegiance to the
Government.

Section 37-Failure to suppress mutiny:

(a) Know in, (having reason to believe) that a mutiny is taking place (is intended), (with
intent to assist the enemy), failing to use his utmost endeavors to suppress (prevent) it.
(b) Knowing (have in, reason to believe) that a mutiny is taking place

(is intended), with intent to assist the enemy) failing to report without delay.

Section 38-Attempt to stir up disturbance:

Attempting to stir up a disturbance in a naval ship

vessel
establishment

Section 39-Using criminal force to superior officer:

Using criminal force to

his superior officer.

Committing an assault on

Section 40-Disobedience:

Wilfully disobeying a lawful command given by

Section 41--insubordinate behavior:

Using threatening (insulting) language

his superior officer.

Behaving with contempt..................

NOTES.-(i) When an offence under this section is committed on active service, the words
"when on active service" should be prefixed to the statement of offence.
(ii) If the "superior officer" was at the time in execution of his office, the words "being in
the execution of his office" should be added after the words "superior officer"

Section 42-Violation of the Act, regulations and orders:

Contravening the provisions of.......... the Navy Ordnance 1961

the navy Ordnance 1961.

(a regulation made under the Navy Ordinance, 1961) or

(a general)
 (a local) order.

Section 44-0bstructlon of provost officers:

Willfully A provost Officer

Obstructing A person legally exercising
Willfully refusing authority under(on be half of) provost
when called on to officer
assist

Section 46-Desertion :-

(1) (a) When on active service

When under orders for active Deserting the
service… service

(b) Deserting the service

(2) Inciting a person subject to service law to desert his service
Or
Knowingly harbouring a deserter.

Section 47-absence without leave:

(a) Absenting himself without leave.

(b) Improperly leaving his ship (place of duty).
(c) Inciting a person subject to service law to absent himself without leave,
or
inciting a person subject to service law improperly to leave his ship/ place of duty.

Section 48-Failure to report deserters and absentees-

( had deserted,

had absented himself without leave improperly left his ship/place of duty.

Knowing that a person sub- was attempting to desert.

ject to service law was attempting to absent himself

without leave,
was attempting to improperly to
leave his ship/place of duty.

(a) Failing to report the fact without delay;

(b) Failing to take steps within his power to cause the said person to be

apprehended.
Section 51-Low flying:

Being the pilot of an aircraft belonging to the Government, flying it at a height less than the
height provided by regulations.

Section 52-Annoyance of flying:

Being the pilot of an aircraft belonging to the Government, Dying it so as to cause/(be likely to
cause) unnecessary annoyance to a person.
Section 53-Prize offences by commanding officer :

Being in command of a naval ship/(a naval vessel) (an aircraft),

(a) having taken a ship/(vessel)/(an aircraft) as prize, failing to send to the High Court division or
to some other prize court having jurisdiction in the case all the ship's/(aircraft's) papers found
on board the said prize.

(b) unlawfully making an agreement for ransoming of a ship/(vessel (aircraft)/goods) taken as

prize.

(c) in pursuance of an unlawful agreement to ransom/(by collusion), unlawfully

restoring/(abandoning) a ship/(a vessel) (an aircraft)/(goods) taken as prize.

Section 54-Other prize offences:

(a) Striking/(ill treating) a person on board a ship/(vessel)/(aircraft)

taken as prize.

or

Unlawfully taking a thing from the possession of a person who was

on board a ship/(vessel)/(aircraft) taken as prize.

(b) Unlawfully removing out of a ship/(vessel)/(aircraft) taken as prize

goods not previously adjudged by a Prize Court to be lawful prize.

(c) Breaking bulk on board a ship/(vessel)/(aircraft) taken as prize/(detained in exercise of a

belligerent right)/(detained under an enactment), with entent to commit breach of trust/(with
intent to dishonestly misappropriate anything therein).
Section 55-Inaccurate certification:
Making (signing) a certificate,
relating to a matter affecting the ship/(vessel), seagoing/(fighting) efficiency of a naval
or
relating to an aircraft/(aircraft material) belonging to the Government, without having ensured
its accuracy.

Section 56-Improper Carriage of goods:

Being in command of a naval ship/(vessel)/(an aircraft), without lawful authority,
 (a) receiving/(permitting to be received) on board the ship/(vessel) (aircraft),
goods/(merchandise) intended for disposal or delivery by way of trade or business, not being
merchandise received in the course of salvage ;

(b) agreeing to carry in the said ship/(vessel)/(aircraft) goods/(merchandise) in consideration of

the payment of freight,

or

demanding/(receiving) payment in respect of carriage of goods/(merchandise) in the said

ship/(vessel)/(aircraft).

Section 57-Malingering:

(a) -------------------

(b) ------------------- Mailingering

(c) -------------------

NOTE.-The act or omission described in the statement of the particulars in each case should
indicate the clause covering the offence of malingering.

Section 59-Intoxication: -

Being in a state of intoxication:-

NOTE-If the offence falls under clause (a) of this section, the words "while on active service",
or "while under orders of active service", or "while on duty", as the case may be should be
prefixed to the statement of offence.
Section 60-lrregularity in connection with custody:

(a) Unnecessarily detaining a person in custody without bringing him

to trial;

or
Failing to bring the case of a person in custody before the proper authority for investigation.
(b) After having committed a person to naval custody, failing without reasonable cause to
deliver at the time of committal or as soon as practicable within 48 hours lifter such committal
to the officer (the
person) in whose custody the person arrested was committed, an account in writing signed
by himself of the offence with which the person so committed was charged.

Section 61-Escape from custody :

Being in lawful custody escaping/(attempting to escape).
Section 65-Loss and waste of Government and service property:-

of which he bad the charge.

which had been entrusted to
(a) Losing Government/(service)
property his care which formed part
of the property of which he
had the charge/which had
been entrusted to his care.
(b) By negligence destroying (damaging) Government/(service) property.

or

By negligence allowing Government/(service) property to be damaged/(destroyed).

(c) Wastefully expending Government/(service) property

Section 66-Unauthorised disclosure of information:- .

Without lawful authority wilfully disclosing/(purporting to disclose) information, which was

entrusted to him in confidence, (or, to which he had access owing to his position).
.

Section 69-False answers on enrolment:

At the time of enrolment making a wilfully false answer to a question set forth in the
prescribed' form of enrolment.

Section 7o-Unbecoming conduct by officers:

Behaving in manner unbecoming the position and the character expected of an officer
Section 71-Disgraceful conduct:

a cruel ……….

Disgraceful conduct of an indecent.. kind

an unnatural

Section 72-False accusation :-

(a) Making a false accusation against a person subject to the Navy

Ordinance, 1961

Knowing ……………
such accusation to be false.
having reason to believe

(b) In making a complaint under section 23 of the Navy Ordinance, 1961, (Making a statement
affecting the character of a person subject to the said Ordinance, knowing (having reason to
believe) such statement to be false.

or

knowingly/(wilfully) suppressing a material fact/(facts)

Section 74- False evidence:-

Having been lawfully sworn/(affirmed) 88 a witness/an interpreter) before

a Court-martial
a board/(person, having power by virtue of the Navy Ordinance,

1961) to administer an oath/( affirmation),

making a statement material in those Proceedings, which he

knew to be false.

did not believe to be true.

Section 75-Conduct to the prejudice of naval discipline:

An Actleftleft,. ..

Disorder……. to the prejudice of good order and naval discipline.

Neglect.. .. .. ..

Section 76-Attempts to commit naval offences:

commit an offence specified in section** of the

Navy Ordinance, 1961

Attempting to

cause an offence specified in section** of the Navy Ordinance, 1961, to be

committed.

and in such attempt doing an act towards the commission of the same.

**Specify any of the sections 29 to 75 inclusive, which is relevant.

Section 77-Abetmentof offences:

Abetment within the meanings of the Penal Code of the commission of an offence specified in
section of the Navy Ordinance, 1961
**Specify any of the sections 29 to 75 inclusive, which is relevant.

Section 78-Civil offences triable by naval tribunal:

Committing a civil offence, that is to say……………..**

**State the offence as described in the Penal Code or other law in force Bangladesh.
 (I) Misconduct in Action and Assistance to Enemy

29. Misconduct in Action by persons in command.-Every flag officer, captain or other

person subject to this Ordinance who, being in command of any of the naval ships, naval vessels
or naval establishments-

(a) fails to use his utmost exertions to bring into action any such ship, vessel or establishment
which it is his duty to bring in to action;
(b) surrenders any such ship, vessel or establishment to the enemy when it is capable of being
successfully defended or destroyed ; (c) fails to pursue any enemy whom it is his duty to
pursue, or to assist to the utmost of his ability any friend whom it is his duty to assist; or
(d) in the case of any action by or against the enemy, improperly withdraws from the action
or from his station, or fails in .his own person and according to his rank to encourage the
persons under his command to fight courageously;

shall be liable, if the offence is committed with intent to assist the enemy to suffer death; and in
any other case to suffer long imprisonment.

NOTES

1. Enemy.-See section 4(x).

2. Action has a wider meaning here than the actual engagements with the enemy, but at least
there must be a hostile operation in progress.
 3. To establish a charge under this section:

(a) the accused must have been a Flag Officer, a Captain or some other officer or Sailor in
command of one Or more of naval ships, naval vessels or naval establishments;

(b) there must have been an "enemy" as defined above;

(c) there must have been misconduct of one of the types described in the section, see
specimen forms of charges below;

(d) it must be proved that the accused intended to assist the enemy, if that is alleged in the
charge (see Note 4 below).

4. In any other case covers misconduct within this section not committed with an intention to
assist the enemy. If the court has any difficulty in deciding whether the accused’s actions
amounted to misconduct within the terms of this section, it should draw on its experience of the
Service and consider what it would except of an officer or sailor of the accused's experience,
background, etc.

5. A person may be charged with intent to assist the enemy even if the only evidence of such
an intention is the doing of the act charged, since in absence of evidence to the contrary everyone
may be presumed to intend the natural and probable consequences of his voluntary acts. (See
Section J 14, Evidence Act.)

6. When a person is charged with intent to assist the enemy, he may be found guilty of
committing the offence without such intent; section 112.

7. As the maximum penalty for an offence under this section is death,

(i) a District Court Martial should not try the case; and

(ii) a plea of guilty cannot be accepted; rule 146(4)

8. Although no person may be tried by court-martial for an offence against this section unless
the trial is begun within time years after the commission of the offence, this period of three years
does not include any time during which the accused was a prisoner of war, or in any enemy
territory, or any time spent in evading arrest after the alleged commission of the offence ; section
105(3).

9. The offence of surrendering a naval ship, vessel or establishment can only be committed by
this person in charge of it at the time. The surrender by a person' charged with its defence can
only be justified by superior orders, or the utmost necessity such as want of. provisions or water,
the absence of hope of relief and the certainty or extreme probability that no further effort could
prevent it, and those defending it, falling into the hands of the enemy.

SPECIMEN CHARGES

No.1

The accused, Captainleftleft.P. Noleftleft.,of B.N.S.rightright………………..,

an officer of the Bangladesh Navy, is charged with :-

Being the Captain Commanding a naval ship, with intent to assist the enemy (omit if
inapplicable), failing to use his utmost exertions- to bring into action the said ship, which it
was his duty to bring into action,

in that he, at…………..…,on…… , failed to use his utmost exertions to bring into action the
said ship, namely, B.N.S. …………..which it was his

duty to bring into action.

No.2

The accused, Lieutenant Commandercentercenterrightright, P.No.............................. of

B.N.Scentercenter.,an officer of the Bangladesh. Navy, is charged with:-

Being in command of a naval establishment with intent to assist the enemy (omit if
inapplicable), surrendering the said establishment to the enemy when it was capable of being
successfully defended or destroyed,

in that he, atleftleft.,onrightright…………,surrendered a naval establishment namely,

B.N.S…………, to the enemy, when it was capable of being successfully, defended or destroyed.

No. 3

The accused, O. No.. . . . . . . . . . , Chief Petty Officer..........................

of B.N.S ………………..…...,a sailor of the Bangladesh Navy, is charged with:
Being in command of a naval vessel, with intent to assist the enemy
(omit if inapplicable), failing to assist to the utmost of his ability
a friend whom it was his duty to assist,
in that he, at………………. ,on………… ,failed to assist to the utmost

of his ability a friend, namelyrightright…………, Whom it was. his duty to assist.

No.4

The accused, Commanderleftleft..,P. Norightright…………………………….of

B.N.Srightright, an officer of the Bangladesh Navy, is charged

with:-

Being in command of a naval ship, with intent to assist the enemy (omit if inapplicable), in
the course of an action against the enemy, failing in his own person and according to his rank
to encourage the persons under his command to fight courageously,

in that he, atleftleft, onleftleft, in the course of an action against the enemy, failed in his own
person and according to his rank to encourage the persons under his command to fight
courageously.

30. Misconduct in action by other officers and men.-Every person subject to this Ordinance
who, not being in command of any of the naval ships, naval vessels or naval establishments", fails
when ordered to prepare for action by or against the enemy, or during any such action, to use his
utmost exertions' to carry the lawful orders of his superior officers into execution shall be liable,
if the offence is committed with intent to assist the enemy, to suffer death and in any other case,
to suffer long imprisonment.

NOTES

1. This section applies only to officers and sailors who are not in command of any of
the naval ships, naval vessels or naval establishments.

2. Enemy. See section 4(x).

3. Action.-See Note 2 to section 29.

4. Lawful orders of his superior officers.-See Notes to sections 39 and 40.

5. With Intent to assist, the enemy and in any other case.-See Notes 4 to 7 to section
29.

6. To establish a. charge 'under this section-

 (a) there must be some action (as defined in the Notes to section 29) in progress or the accused
must have been ordered to prepare for such action, either himself or as a member of a large
body (e. g. the whole crew of a ship) either by word of mouth or by, for instance, an alarm
signal described in orders;

(b) there must be some lawful orders given by a superior officer (See Notes on "lawful
command" in section 40);

(c) the accused person must have failed to use his utmost exertions to carry out the order.

7. As to period of limitation for trail, See Note 8 to section 29.

SPECTMEN CHARGES

No.1

The accused, (Rank, Name, P.No.)of B.N.Srightright……………..,an officer of

the Bangladesh Navy, is charged with:

with intent to assist the enemy (omit if inapplicable, failing, when ordered to prepare for
action against the enemy,

in that he, atleftleft.,onrightright……………….,when ordered by (rank, name,)

his superior officer to prepare for action against the enemy,failed to do so.

No.2

The accused (O,No., Name, Rank) of B.N.S ………………..,a sailor of the

Bangladesh Navy, is charged with:

with intent to assist the enemy (omit if inapplicable), failing during action by the enemy, to
use his utmost exertions to carry into
execution the lawful orders of his superior officer,
in that he, atrightright,………………on.. …………………….., during action by the

enemy, failed to use his, utmost exertions to carry into execution the order of
Commander………………….,his superior officer, when ordered to........................

31. Obstruction of operations.-Every person subject to this Ordinance who wilfully delays
or discourages, upon any pretext what so ever any action or service which has been commanded
on the part of any of the Bangladesh forces or of any forces co-operating therewith, be liable, if
the offence is committed with intent to assist the enemy to suffer death, and in any other case, to
suffer long imprisonment.

NOTES

1. Upon any pretext whatsoever.-Owing to these words the text under this section is more
stringent than under the two previous sections. Once it is established that the accused by his
action or inaction has wilfully (i.e. deliberately and not by accident) delayed or discouraged the
action or service, it is not defence, for example. to claim that he genuinely attempted to do
something that he considered more useful or to claim that he made an error of judgments.

Action. See Note 2 to section 29.

3. Service includes any activity directly connected with the prosecution of operations against
the enemy, e.g., an order to prepare for escort duty, laying a minefield, rescue or towing work,
etc. The action or service must have been commanded on the part of Bangladesh forces or of
forces co-operating with them.

4. With intent to assist the enemy.-See Notes 5 to 7 to section 29.

5. In any other ease.-See Note 4 to section 29.

SPECIMEN CHARGE

The accused, (Rank, Name, P. No.) of B.N.S…………...an officer of

the Bangladesh Navy, is charged with.

with intent to assist the enemy (omit if inapplicable)wilfully delaying a service, which had been
commanded on the part of Bangladesh forces, in that he, at ……………………..,
on……….,having been ordered to prepare

for escort duty wilfully delayed the said service by......................................

32. Corresponding with, supplying or serving with the enemy. Every person subject to this
Ordinance who-

(a) communicates with or gives intelligence to the enemy;

(b) fails to make known to the proper authorities any information received by him from
the enemy;

(c) furnishes the enemy with supplies of any description; or

(d) having been made a prisoner of war, serves with or aids the enemy in the
prosecution of hostilities or of measures calculated to influence morale, or in any other
manner what so ever, not authorised by international usage shall be liable, if the offence
is committed with intent to assist the enemy to suffer death, and in any other case' to
suffer long imprisonment.

NOTES

1. Communicates with. -On a charge under this clause it must be proved that the accused
established contact with the enemy either directly or indirectly through a third party. It is not
sufficient to show that the accused disclosure information’s and that by chance it had reached the
enemy. Where there is no enemy within the meaning of the Ordinance, offences of this nature can
only be charged under section 66, or, if done to assist a potential enemy, under section 78 of the
Ordinance as offences under the Official Secrets Act, . 1923 (see Part IV of the Manual).

2. Gives intelligence to.- It must be proved that the communication or intelligence reached the
enemy. Intelligence means information which is or purports to be information as to any matter
such that information about it would or might be directly or indirectly useful to an enemy. For
example, information as to any of the following matters would be such information:

(a) the number, description, armament, equipment, disposition, movement or condition of any
of the Bangladesh forces or of any forces co-operating therewith, or any ships or aircraft
belonging to any of such forces;
(b) any operations or projected operations of any of such forces, ships or aircraft;
(c) any code, cipher, call sign, password or countersign ;
 (d) any measures for the defence or 'fortification of any place on behalf of the
Government;
(e) the number, description or location of any prisoners of war;
(f) munitions of war.

3. Enemy.....See section 4(X)

4. The phrase supplies of any description is very wide and the clause would for example cover
faking steps to restore a supply of water cut oft' by the Bangladesh forces.

5. Prisoner of war.-See Note 8 to section 29.

6. Serves with i.e., serves with an armed or uniformed force.

7. Aids i.e. helps the enemy directly or indirectly but without necessarily "serving with" the
enemy.

8. It is for the court trying a case to say if the act charged can be said can be calculated to
influence moral. An example of such an act would be broadcasting for the enemy. It is immaterial
whether the act was calculated to influence the morale of Bangladesh forces &r subjects or of the
enemy forces or subjects, but the act must have been calculated to influence morale to the
enemy's advantage.

9. International usage.-See the Geneva Convention 1949. For example, prisoners of war may
help with the harvest without exposing themselves to this section.

10. Intent to assist the enemy and in any other case.-See Notes 4 to 7 to section 29.

SPECIMEN CHARGES

No.1

The accused, (Rank, Name, P. No.) of B.N.S. . . . . . . . …….., an officer of

the Bangladesh Navy, is charged with :-

With intent to assist the enemy (omit if inapplicable), giving intelligence to the enemy,
in that he, atleftleft,onleftleft…………… gave intelligence to the ,enemy

by reporting to X an enemy agent a projected bombardment by the Bangladesh Navy of the

enemy town of……,on the night of………………

No’ 2

The accused, (Rank, Name, P. No.) of B.N.S………………….., an officer

of the Bangladesh Navy, is charged with:-

With intent to assist the enemy (omit if inapplicable), when a prisoner of war, aiding the
enemy in the prosecution of measures calculated to influence morale.

in that he, at. . .. . .. . . . . ,on ……………………when a prisoner of war, (with intent to assist the
enemy)'aided the enemy in the prosecution of measures calculated to influence morale by
delivering a broadcast in Bengali to the Bangladesh public, and which broadcast contained the
following passages …………………………………………. (set out).

(ii) Neglect of Duty

33. Sleeping on watch or abandoning post.- (1) Every person subject to this Ordinance who,
being in the presence or vicinity of the enemy or under orders to be prepared for action by or
against' the enemy abandons his post improperly or sleeps upon his watch, shall be liable to suffer
long imprisonment.

(2) Every person subject to this Ordinance who, not being in the presence or vicinity of the
enemy or under such orders as aforesaid, abandons his post improperly or sleeps upon his watch
shall be liable to suffer short imprisonment.

NOTES

1. Enemy.-See section 4(x)

2. (a) Under order to be Prepared for action-Such orders may have been given to the
accused individually or as a member of a larger body (e.g. the whole ship's company), either by
word of mouth or by, for instance, an alarm signal-described in orders.
(b) When a person is charged under sub-section (1)-i.e., "being in presence or vicinity of the
enemy"-or-"under orders to be prepared Correction by or against the enemy", he may be found
guilty of committing the offence under sub-section (2),-i.e., "not being in the presence or vicinity
of the enemy or under such orders as aforesaid", "see section 112.
 3. (a) Post refers to the position or place in which it is the duty of an individual to be, especially
when under arms. With respect in particular to a sentry it applies:

NOTES

(i) to the spot where the sentry is left to the observance of his duties by the officer or other
person posting him; or
(ii) to any limits pointed out as his beat. The fact that a sentry has not been regularly posted
is immaterial if he is charged with an offence committed while at his post, provided
evidence is given to prove that he knew where his duty required him to be.

(b) The charge should specify the post at which the accused should have been, e.g., "abandon
his post as aircraft lookout of the first watch". It is necessary to prove that the accused
deliberately left his post without authority.

(c) A charge of abandoning post, which applies to a Particular post, e.g., a look out, must be
distinguished from "improperly leaving his ship or place of duty" under section 47 (b), which
refers to a general place of duty.

4. A charge of sleeping on his watch should include a description of the duty on which the
accused was engaged, e.g., "sleep upon his watch as a look out/a member of the middle watch".

SPECIMEN CHARGES

No.1

The accused, (0. No., Name, Rank) of B.N.S ……………………………,

a sailor of the Bangladesh Navy, is charged with:-

Being in the vicinity of the enemy, abandoning his post improperly,

in that he, at ……….on………….…...being in the vicinity of the enemy,

improperly abandoned his post as life boat sentry.

No.2
The accused, (0. No., Name, Rank) of B.N.S. . . . . . . . . . . . . . . ., a Sailor of the Bangladesh
Navy, is charged with :

Sleeping upon his watch,

in that he, at………….on…………between…………….hours and..........

hours while boatswain's mate of the middle watch was asleep at his watch.

34. Neglect of duty.- Every person subject to this Ordinance who neglects to perform or
negligently performs any duty imposed on him shall be liable to be dismissed from the service.

NOTES
1. This section creates two offences.-(a) neglect of duty and (b) negligent performance of
duty.. Neglect of duty covers non-performance of duty whether wilful or negligent. In "negligent
performance of duty" the duty was performed, but was performed negligently. Before a person
can be found guilty of either offence, the court must be satisfied that the accused either has done
something which a reasonably capable and careful person of his seniority and his experience in
the Service would not have done, or has failed or omitted to do something which a reasonably
capable and careful person in his position in the Service would have done. These charges cover
culpable or wilful neglect, carelessness, indifference or general slackness in the performance of
duty. A mere error of judgment, which is not in itself based on negligence, is not sufficient; if,
however, the error' arose because a judgment was formed too hastily in circumstances which did
not warrant a hasty judgment or if, in forming the judgment, the accused omitted to take into
account factors which would have been taken .into account by a reasonably capable and prudent
person in his position in the Service, or took into account, factors which such a person would not
have taken into account then the court can find that the accused is guilty of an offence under this
section.

2. A description of the alleged neglect or negligence, sufficient to let the accused know what
the charge is about, must be included in the charge.

3. Duty imposed on him.-There must be a duty imposed on the accused because he is acting
in a specific capacity (e.g., as Officer of the Watch or as mess treasurer) and not a duty imposed
on him in a general capacity (e.g., as an' officer or even as an officer of a particular rank). If the
accused is acting in' a general capacity, it may be possible to charge him with an act or neglect to
the prejudice of good order and naval discipline under section 75.

4. In some cases it may be desirable to specify in the charge the effect of the alleged neglect or
negligent performance of duty, e.g., where the measure of neglect or negligence can only be
judged by its results or where the results or where the results could not have happened but for
neglect or negligence. There must then, of course, be complete evidence that the alleged neglect
or negligence is the actual and direct cause of the result specified. Moreover, the result must not
amount to an allegation of another offence (e.g., against section 65); otherwise the whole charge
would be bad for duplicity. Where loss of life results from negligence, the inclusion in the charge
of that fact will amount to a charge of "causing death by a rash or negligent act" (punishable
under section 304A of the Penal Code). In such a case, consideration should be given to charging
the accused with the civil offence under section 78 of the Ordinance, instead of neglect of duty.
When a charge of causing death by a rash or negligent act is laid, it is the practice not to include
any other charge in the same charge-sheet.

5. A charge under this section may sometimes usefully be added as an alternative to a charge
involving fraud where the evidence of fraudulent intent is weak but there is evidence of
carelessness in the custody of money or stores or in the keeping of accounts. If the carelessness
results in the loss as opposed to the theft of money or for the loss, damage or destruction of
stores, a charge under section 63 or 65 should be brought.

SPECIMEN CHARGES

No.1

The accused (Rank, Name, P. No.) of B.N.S.. . . . . . . . . . . . . ,an officer of

the Bangladesh Navy, is charged with :-

Neglecting to perform a duty imposed on him,

in that he, while employed as Supply Officer of B.N.S………..….at..........

on……………failed to ensure that the clothing stocks in his charge Were

mustered as required by Article……………..of the Victualling Manual.

No.2

Negligently performing a duty imposed on him,

in that he, at…………..on……….while acting as Commanding Officer of

B.N.S. .. …………….contrary to the provisions of Article……………..of

. . . . .. . . . . . .. Port Order's caused that ship to proceed at high speed to the

south ofrightright.,thereby giving legitimate cause for complaints of

danger to life and property on shore owing to the wash made.

(iii) Mutiny
 35. Definition of "Mutiny'.-In this Ordinance, mutiny means a combination between two or
more persons subject to service law, or between persons two at least of whom are subject to
service law-
to overthrow or resist lawful authority in the armed forces of Bangladesh or any forces co-
(a) operating there with or in any part of any of the said forces;
to disobey such authority in such circumstances as to make the disobedience subversive of
discipline, or with the object of avoiding any duty or service against, or in connection with
(b) operations against, the enemy; or
(c) to impede the performance of any duty or service in the armed forces of
Bangladesh or in any forces co-operating therewith, or in any part of any of the
said forces.

36. Offences of mutiny.-(I) Every person subject to this Ordnance who-

(a) takes part in a mutiny involving the use of criminal force or the threat of the use of
criminal force or having as its object or one of its objects the refusal or avoidance of any
duty or service against or in .connection with operations against, the enemy, or the
impeding of the performance of any such duty or service, or

(b) incites any person subject to service law to take part in such a mutiny,
whether actual or intended, shall be liable to suffer death.

(2) Every person subject to this Ordinance who takes part in a mutiny not described in the
foregoing sub-section, or incites any person subject to service law to take part in such a mutiny,
whether actual or intended, shall be liable to suffer long imprisonment.

(3) Every person subject to this Ordinance who endeavors to seduce any person subject to
service law from his duty or allegiance to the Government, shall be liable to suffer long
imprisonment.

NOTE

1. There must be the intention to act in the manner described in (a), (b) or (c) of the definition
in section 3S and some action in pursuance thereof ; the action may be any step towards the
mutiny, e.g, the making out or preparation of a plan, or the preparation of a list of those who may
be persuaded to join in, or the approach in a of a third person. The "action" may be positive (e.g.,
switching off lights, a small arms party throwing down their arms).or negative (e.g. refusing to
move when ordered).
 2. A combination between two or more persons subject to service law means that there must
be at least two or more persons subject to service law acting in concert to constitute the offence,
One person cannot alone commit mutiny. It is normal to charge mutineers collectively fu the
same charge; but, if for any reason one accused has to be charged separately, the charge should
read "took part in a mutiny together with. . . .. . . . . . . . "(naming or at least identifying other
offenders subject to service law and proving their participation).

3. Service law.-See Section 4(xxxiv). Before a combination can amount to mutiny at least two
members of it must be subject to service law. If, therefore, one sailor subject to the Ordinance
combines with members of a force who are not subject to service law, or with members of a
foreign force or with civilians then, although the combination is directed against authority in the
armed forces of Bangladesh, the sailor is not guilty of mutiny.

4. Criminal force.-See Section 350 of Penal Code. A mutiny does not "involve the use of
criminal force or the threat of the use of criminal force is used or .contemplated or the threat
made before the actual mutiny is at an end. Thus, if during an investigation of the case one of the
mutineers struck the officer of the watch, this would not by itself convert simple mutiny into
mutiny involving the use or the threat of criminal force.

5. The Phrase "subversive of discipline" is stronger than conduct to the prejudice of good
order and naval discipline, and must be such f disobedience as is actually likely to undermine
discipline. Something done by two sailors in a place where no one else is present may be to the
prejudice of discipline, but is not necessarily subversive of discipline.

6. To impede the performance of any duty or service.-A "sit-down strike" would be an

offence under this section.

7. An inciter is one who counsels, commands, encourages or advises the commission of an

offence even though the incitement has no e8'ect. The normal rule is that, if the full offence is
committed, the instigator must be charged with abetment, but, since sub-sec. (I) (b) refers to
incitement of a mutiny "whether actual or intended", an accused can be convicted of inciting
others to commit a mutiny whether or not the mutiny took place. If a person is charged with
mutiny and it is proved that he, only incited others to mutiny he may nevertheless be found guilty
of mutiny under section 77, provided that the mutiny he incited took place.

8. (a) If a person is charged with an offence either against clause (a) or clause (b) of sub-sec.
(1) and the court are satisfied that he took part in a mutiny or incited a person subject to service
law to take part in a mutiny, as the case may be, but are not satisfied that the mutiny concerned
was of the character specified in clause (a) of sub-sec. (1) the court may, by a special finding, find
him guilty of mutiny under sub-sec. (2) ;-see section 112. As a matter of practice, however, if
there is any doubts as to whether the mutiny is of the character referred to in sub-sec. (I), an
alternative charge should be laid under sub-sec. (2)

(b) When an accused is charged under this section the court have no power to convict him by
special finding of an offence under section 37, but if it is desired when an accused is so charged
that the court should have an opportunity to convict him of an offence under section. 37 an
alternative charge under that section must be preferred.

(c) There is no time limit within which the offences under this section must be brought to trial;
see section 105 (2)

(d) As the maximum penalty for an offence under sub-section (1) is death ;

(i) AD.C.M. should not try the case.

(ii) A plea of guilty cannot be accepted; see Rule 146 (4)

9. In cases of conspiracy (-i.e. a combination of two or more persons to do an illegal act), after
prima facie evidence has been given of the existence of the plot, and of the connection of the
accused therewith, anything said, done or written by anyone of the conspirator in reference to
their common intention (not necessarily. "in furtherance of the common purpose") is a relevant
fact as against each and all of the conspirators; See section 10 of the Evidence Act and the
Illustration thereto.

10. (a) In framing a charge under this section the specific act or acts which constitute the
offence must always be alleged; and the offence is so grave that a charge of it should only be
brought On very clear evidence. Cases of insubordination, even on the part of two or more
persons should unless there appears to be 'a combined design on their part to resist authority, be
charged jointly under section 39 with using criminal force or committing an assault; or
separately under section 40 with wilfully disobeying a lawful command; or under section 41
with using threatening or insulting language or behaving with contempt; or if these sections are
inapplicable jointly or separately under section 75
 (b) Provocation by a superior or the existence of grievances is no justification for mutiny or
insubordination.

11. Sub-section (3).-Any attempt to bring the Government into .hatred or contempt or to
excite disaffection towards it, is sedition,. punishable under section 124-A of the Pen al Code.
The expression "disaffection includes disloyalty and all feelings of enmity. Sub-section (3) of this
section makes it an offence punishable with long imprisonment; see Section 4(XV)for an officer
or sailor, who endeavors to seduce any person belonging to the armed forces of Bangladesh, from
his duty or allegiance to the Government. It is immaterial whether the Endeavour" is by words,
either spoken or written, or by signs, or by visible representation, 'or otherwise. It is also
immaterial whether or not any person is in fact seduced from his duty or allegiance to the
Government.

12. Civilians who abet the committing of mutiny, Or who attempt to seduce any person serving
in the Army, Navy or the Air Force from his allegiance or his duty, commit an offence under
section 131 of the Fenal Code, and are liable to be punished with transportation for life, or with
imprisonment which may extend to ten years and with fine. It may, however, be noted that
persons, who are not otherwise subject to the ordinance, become so subject and thereby liable to
be tried by court-Martial, if they act as .spies for the enemy, or Endeavour to seduce any person
subject to the Ordinance from his duty or allegiance to the Government, if they commit the
offence while on board any of the naval ships or vessels, or within any of the naval
establishments ;-See section 2 (2) (d).

SPECIMEN CHARGES

No.1

The accused, namely; (1)- (0. No., Name., Rank), of B.N.S.....................

(2)-(O. No.; Name., Rank), of B.N.S.....................
(3)-(0. No. Name., Rank), of B.N.S. ……………
all sailors of the Bangladesh Navy, are charged with;-

Taking part in a mutiny involving the use of criminal force,

in that they at ………………..on ………….having combined together to

Overthrow lawful authority in the armed forces of Bangladesh by measures involving the use of
criminal force, made a combined armed attack, on the main guard room with the object of
releasing the prisoners from the Cells.
No.2

Taking part in a mutiny,

in that they, at.. .. .. .. .. .. on.. .. . .. . .. .. having combined together to resist lawful authority in the
armed forces of Bangladesh and having been

ordered by O.N…….…….Chief Petty Officer No……….. , their superior

officer' to fall in on parade for guard duty did not do so, thereby taking part in an actual mutiny.

No. 3

The accused (0.No., Name Rank) of B.N.S………………………., a sailor

of the Bangladesh Navy, is charged with;

Inciting a person subject to service law to take part in a mutiny, in that he at ;………... .on
………………...incited a number of sailors there assembled to join himself and certain other
sailor subject to service law in an intended mutiny which had for its object the refusal to turn out
at the Captain's Divisions at……………… (hours) the next day.

No.4

Endeavouring to seduce a person subject to service law

from his allegiance to the Government,

in that he, at…………....on………….by saying to leading seaman...........

of B.N.S………..rightrightthat the Government of this country holds the lives of servicemen of

no value and is prepared to shoot them down under the pretext 0 f maintaining discipline, or
words to that effect, endeavoured to seduce the said leading seamanrightrightfrom his allegiance
to the Government.

37. Failure to suppress mutiny.-Every person subject to this Ordinance who, knowing or
having reason to believe that a mutiny is taking place or is intended-
 (a) fails to use his utmost endeavours to suppress or prevent it ; or

(b) fails to report without delay that the mutiny is taking place or is intended shall,

(i) if his offence was committed with intent to assist the enemy, be liable to suffer death;
and

(ii) in any other case, be liable to suffer long imprisonment.

NOTES

1. The offences created by this section can be committed in circumstances involving a higher
degree of punishment, i,e. with intent to assist the enemy" or in circumstances involving a less
degree of punishment, toe where the offence is committed without such intent. Section 112
empowers a court when the accused is charged with committing an offence against this section
"with intent to assist the enemy" to convict him by special finding in an appropriate case of
having committed the offence without that intent. as the latter offence involves a less degree of
punishment.

2. Persons should not be charged jointly of committing an offcnce under this section.

3. There is no time limit, within which offences under this section must be brought to trial, see
section 105(2).

4. If a person is charged with committing an offence under this section with intent to assist the
enemy, the maximum punishment is death-and therefore;
(i) such a charge should not be tried by a D.C.M., and
(ii) a plea of guilty cannot be accepted, see Rule 146(4).

(5) Fans to use his utmost endeavours.-does not necessarily mean the almost of which a man
is capable but such endeavours as a man might reasonably, and fairly be expected to make.

6. The person who comes to know of an existing or intended mutiny will have performed his
duty under this section if he gives information without delay to a person in authority. Such
information would naturally be given to the immediate superior of the person who would, in his
turn; be bound to communicate it to higher authority.

7. Enemy.-See section 4(x).

SPECIMEN CHARGE

The accused (0. No., Name, Rank of B.N.Srightrighta sailor of the Bangladesh Navy, is
charged with:-

Knowing that a mutiny is intended, failing to report without delay in that he, at
……………………on. .. . .. .. . . .. having on present in the room in which .(0. No., Name
and Rank of at least two sailors) and other persons subject to the Bangladesh Navy Ordinance
were in his hearing planning together to mutiny by refusing to turn out for the Captain's Division
at…..hours) the next day, failed to report without delay that such mutiny was intended.

38. Attempt to stir up disturbance-Every person subject to this Ordinance who attempts to
stir up any disturbance in a naval ship, naval vessel or naval establishment on the ground, of
unwholesomeness of food or upon any other ground, shall be liable to suffer long imprisonment.

NOTES

To stir up disturbance means to throw into confusion, or to cause agitation or tumult in a ship,
vessel or a naval establishment. The disturbance caused must be such as to disrupt normal service
discipline. Any agitation short of a mutiny would be punishable under this section, on whatever
around it may have been caused.

2. Procedure for making a representation affecting welfare etc.. Whether the matter affects one
individual or more than: one individual, is laid down in rule 30. A combination of individuals
either by the appointment of committees or in any other manner, is forbidden as being contrary to
the tradition and practice of the service and injurious to its welfare and discipline. See rule 29.

3. This section makes an express provision for the punishment of an attempt. Attempt to
commit other offences specified in the Ordinance are punishable under action 76.

4. Long imprisonment-.See section 4(xv).

SPECIMEN CHARGE

The accused (O.No., Name, Rank) of B.N.S …………………………….,a sailor of the

Bangladesh Navy, is charged with:-

Attempting to stir up a disturbance in a naval establishment, in that he, at……………….,on

…………………….,attempted to stir up a disturbance in B.N.S………….by throwing away
his plate of cooked rice in the presence of other sailors of the said establishment and shouting
"this food is not fit for dogs" or words to that effect.

(iv) Insubordination

39. Using Criminal force to superior officer.-Every person subject to this Ordinance who
uses criminal force to, or commits an assault on, his superior officer, whether or not that officer is
exercising authority as such, shall be liable to suffer long imprisonment.

NOTES

1. For the difference between "criminal force" and "assault" see PC sections 350 and 351.
The following example will make the difference clear:-

(a) A throws a stone at B. If the stone hits B, A has used criminal force; is it misses him;
A has attempted to use criminal force.

(b) A during an altercation with B, picks up a stone in a threatening manner. If A

intends or knows it to be likely that this will cause B to believe that A is about to throw
the stone at him A commits an assault on B.

2. An "assault" includes any defiant gesture or act which if completed would end in a blow
being struck or criminal force used, but does not include insulting or impertinent gesture or acts
which would not result in a blow being struck or in criminal force being used. For example, a
sailor throwing down his arms or, his equipment on parade or throwing away his cap or belt in an
impertinent manner could not be deemed to be committing an assault within the meaning of this
section if they were thrown in such a direction that they could not strike a superior. A sailor who
shakes his first or even draws a bayonet or who in any other way makes a show of violence
against a superior is not guilty of assault if he was behind bars or at such a distance that it was at
the time impossible for him to strike or throw anything at the superior. On the other hand, throw-
ing a missile would be "using criminal force" if it hit a Superior or "attempt to use criminal force"
if it missed him. Pointing a loaded firearm at a superior who is within range would be
"committing an assault".

3. Superior officer.-(a) This term in relation to any person subject to the Ordinance means
an officer or a sailor not below the rate of petty officer who is of rank or rank higher than that
person, or is senior to that person in the same rank or rank rate; see section 4(xxxvii). Lending
ranks are therefore not superior officers, so offences of insubordination against them should not
be charged under sections 39, 40 or 41, but should be charged as acts to the prejudice of good
order and naval discipline (section 75), or under section 78 with the appropriate civil offence as
.the case may be.

(b) Officers, junior commissioned officers, warrant officers and noncommissioned officers of
the Bangladesh Army or the Bangladesh Air Force are "superior officers" in relation to a person
subject to the Ordinance only when they are serving under such conditions as the Government
may direct.

4. Whether or not that officer is exercising authority as such-A superior officer is

exercising authority on all occasions, whether in uniform or not, when he might reasonably be
required to exercise his authority, and as the maximum punishment in either case is the same, it is
not necessary to state in the charge that the superior officer concerned was exercising authority as
such at the time of the offence. Such a fact may, however, have a material bearing on the
sentence. Whether or not the officer was in fact exercising authority as such, should therefore, be
brought out' in the evidence so as to enable the court to assess appropriate punishment in the
event of conviction.

5. A superior officer in plain clothes may be the subject of an offence under this section, and it
win depend on all the circumstances judged from the service standpoint whether a court-martial
should, or should not hold that the offender knew or had reason to believe him to be his superior
officer when he committed the offence. Although ignorance that a person is a superior officer is
no defence, it may be a strong factor in. mitigation

6. Provocation.-The law does not recognize that anyone should ever so lose control of himself
as to strike another, and while provocation can be a strong factor in mitigation of punishment its
only legal effect as a defence is to reduce a charge of murder (section 302 PC) to one of culpable
homicide not amounting to murder (section 304 pc). In considering such action, the court should
bear in mind the degree of provocation required in a disciplined service is even greater than in
civil life. In a disciplined service it is a cardinal principle; instilled into all ranks, that it is
absolutely forbidden to touch a superior officer; .in .those circumstances the degree of
provocation would have to. be such as would be enough to over-whelm not only the normal
civilian inhibitions but also the ingrained instinct and training pf a disciplined man. Mere use of
vulgar language or criticism of a service nature, however, severe or prolonged would not
constitute such provocation.
 7. The rank and name of the superior officer concerned should be given in the particulars of
every charge under this section. A court is entitled to rely upon its general service knowledge
with regard to the respective seniority of various naval ranks but when the accused and the
superior against whom the offence is alleged to have been committed are of the same rank
evidence may be adduced to prove that the accused was the junior. Ignorance that a person is a
superior officer is no defence. Nevertheless it is usually a strong factor in mitigation.

8. When threatening or insulting language accompanies the use of criminal force or the
assault, only using criminal force or committing an assault need be charged, if the evidence is
satisfactory. The language may be given in evidence as showing the manner in which the offence
was committed. An additional charge under section 41 is not necessary.

9. Persons should not be charged jointly of committing an offence under this section, because
such a joint offence would constitute mutiny.

SPECIMEN CHARGES

The accused (O. No., Name, Rank) of B.N.S. . . . . . . . . . . . . " a sailor of the Bangladesh
Navy, is charged with :

No.1

Using criminal force to his superior officer,

in that he, at……….,on………….when checked by O. No…………..Petty Officer

……………….who was then checking the sailors identity cards, hit said 'Petty Officer .. .. . .. . ..
.. on his face.

No.2

Committing an assault on his superior officer,

in that he, at………., on………; when ordered by O. No ……....Petty

Officer. . . . . . . . . . . . . . .. . . to leave the room picked up a stone and threatened to throw it at the
laid, Petty Officer.

40. Disobedience.-Every person subject to this Ordinance who wilfully disobeys any lawful
command of his superior officer (by whatever means communicated to him) shall be liable to
suffer long imprisonment.
 NOTES

1. Superior officer.-See notes 3-5 to Section 39.

2. The disobedience must be "wi1ful", that is to say, deliberate. The order disobeyed must be a
personal order, to the accused and nor a general instruction. Disobedience, of general instructions
or regulations can be charged under section 75, if amount to an act or neglect to the prejudice of
good order and naval discipline, or under, section 34 if amounting to negligent performance of
duty, or under section 42 if amounting to a contravention of any rule or regulation made under the
ordinance or of any general or local order.

A personal order can be oral, written or conveyed by message; in the case of a message it,
must be conveyed to the accused by a person whom he might reasonably suppose to have 'been
authorized to convey it and it must be given to him as the command of the superior officer. Thus
the order need, not be given directly but it must be a personal order to the accused. Exceeding a
definite wine bill limit imposed 'on the accused personally by his commanding officer is wilful
'disobedience. Details of an order given by a superior officer to a messenger, to convey, to the
accused. may be stated in evidence by that officer, provided that the, messenger himself is called
to give evidence as to the actual message he delivered.

3. The command which, is alleged to have been disobeyed must be set

out in the charge.

4. An accused should not be charged in one cha* with disobeying two separate orders as such
a charge would be bad for duplicity; see Rule 126(1).

5. When an accused person is given an order which is to be complied with at some future time,
and on receipt of the order he says that he will not obey it, he should not be charge with wilful
disobedience unless, of course, the time arrives to carry out the order and he does not do so. A
mere statement by the accused that he will not obey some order to be carried out in the future is
not disobedience because he may change his mind and obey when the time comes, but'
consideration should be given to framing a charge of behaving with contempt under section 41,
which would usually be appropriate; in exceptional cases, where that is not the case, it is probable
that the words or action would fall within section 75.

6. Lawful command.-A superior officer has the right to give a command for the purpose of
maintaining good order or suppressing a disturbance or for the execution of a naval duty or
regulation or for a purpose connected with the welfare of his men. Below are given examples of
what are and what are not lawful commands. These examples should not be regarded as
constituting hard and fast rules. Circumstance alter cases and it is possible for the same command
to be in one instance lawful and in another instance unlawful according to the attendant
circumstances.

Examples of lawful commands

To act as batman.
To undergo electric treatment.
To take medicine or drugs.
To enter hospital.
To wear free spectacles.
To get hair cut.
To do work of national importance during a strike.

Examples of commands which may be termed unlawful

To sign for pay when not received.

To undergo a surgical operation.
To do an act which is illegal under the Law of Bangladesh.

7. A command does not cease to be given personally because it is given to a number of men at
one time, e.g., a command addressed ,by a superior officer to four men to "dismiss" is for the
purpose of this section a lawful command to each of the four men so addressed;

8. Religious scruples, however bona fide, afford no justification for disobedience of

commands which are clearly lawful.

9. A civilian cannot give a "lawful command" under this section to a sailor employed under
him; but it may well be the sailor's duty as such to clothe act indicated, and if so, he may be
punished for not doing so under section 75. The particulars of the charge should clearly show that
the disobedience was prejudicial to good order and naval discipline because the sailor had been
placed under the orders of the civilian by a superior naval authority.

SPECIMEN CHARGES

The accused (0. No., Name, Rank) of B.N.S........................................

a Sailor of the Bangladesh Navy, is charged with:………………………..

No.1
 'Wilfully disobeying a lawful command given by his superior officer.

in that he, atleftleft:., onrightright, when ordered by Lieut.....................................

of B.N. Sleftleft, to stand to attention did not do so.

No.2

At………, on…………. , when informed by (0. No., Name, Rank)..............

………....of B.N.Srightright... ……....that he (the accused) had been

ordered by Commanderleftleft, his commanding officer

to report to his office forthwith did not do so, saying to the said Petty Officer "I am off duty and
I am not stirring for that old fish or anyone else, or words to that effect.

41. Insubordinate behaviour.-Every person subject to this Ordinance who uses threatening
or insulting. language to, or behaves with contempt to his superior officer, shall, if such officer’s
at the time in the execution of his office, or, if the offence is committed on active service, be
liable to suffer long imprisonment, and in any other case to suffer short imprisonment.

NOTES

1. Superior officer.-see note 3 to section 39.

2. The offences created by this section can be committed in circum

stances involving a higher degree of punishment (i.e., if at the time of the offence the superior
officer concerned is "in the execution of his office", or if the offence is committed "on active
service")' or in circumstances involving a lower degree of punishment-(i.e. when neither of these
two conditions is present) A person charged with an offence in circumstances involving higher
degree of punishment may be found guilty of the offence without such circumstances; section
112.
 3. Threatening or insulting language.-The actual words used by the accused must be set out
in the particulars of the charge. Threatening language means language from which a person may
reasonably infer that violence may be used. This may be inferred, either from the character of the
words used or from the surrounding circumstances. It is necessary to prove that such language
was addressed to or at the superior officer within his hearing. If made about a superior officer to a
third party or generally, but not in the presence or hearing of such superior officer, it will not be
and offence under this section, but may be under section 75. If, however, the words were used in
the form of a message or reply to be conveyed to the superior officer, this could be an offence
under this section. Similarly, a person who writes a letter containing insulting or disrespectful
language about a superior and causes it to be delivered to that superior intending that he should
read it can be charged under this section.

4. Behaves with contempt.-It is not necessary for the subordinate to be insolent in manner or
disrespectful in tone, so long as, while he is in the presence of his superior officer, the act done,
or the words used show contempt for the position or the orders of such superior officer, e.g., a
sailor sentenced summarily says:-"I refuse to do it (the punishment), Sir". This shows a contempt
for authority, although the words used may have been respectful.

5. The rank and name of the superior officer concerned should be given in the particulars of
every charge under this section. A court is entitled to rely upon its general service knowledge
with regard to the respective seniority of various naval ranks but when the accused and the
superior to whom he used the language which is the subject of the charge are of the same rank
evidence must be adduced to prove that the accused was the junior and that he knew it.

6. Care must be taken to see that charges under this section are not bad for uncertainty or
duplicity; for instance a charge alleging that the accused "used threatening or insulting language",
or 'used insulting language and behaved with contempt" would be bad.

SPECIMEN CHARGES

The accused (0. No., Name, Rank) or B.N S ……………….. a sailor

of the Bangladesh Navy, is charged with :

No.1

Using threatening language to his superior officer

in that he, at .,on , after having been awarded a punishment by his commanding officer
said to Chief Petty Officer O. No................................

"I'll bash your head for this yet", or words to that effect.

No.2

Using insulting language to his superior officer

in that he atleftleft.,onrightright………….,when ordered by Chief Petty Officer… .. . . . .. .. .0.

No. . . . . . . . . . .. to report to him for duty at. . . . . . . . . .a.m. next morning, said to him "Go to
Hell, I have seen ~any bastards like you" or words to that effect.

42. Violation of this. Ordinance, rules, regulations and orders. Every person subject to this
Ordinance who, neglects to obey or contravenes any provision of this Ordinance or any rule or
regulation made under this Ordinance or any general or local order, shall unless other
punishment is provided in this Ordinance for such neglect or contravention, be liable to suffer
short imprisonment.

NOTES

1. A neglect to obey, or contravention of, an order in respect of which other punishment has
been provided in the Ordinance, should not be charged under this section.

2. General and local orders include all orders with which it is the duty of naval personnel to
acquaint themselves e,g. Captain's and other Standing Orders Daily orders etc. They do not
include orders given by word of mouth as such orders only apply to the person or persons to
whom they are actually given. Although there may be a large number of such persons present,
they are not general orders and failure to obey them should be charged under this section 40, not
under this section.

3. Ignorance of the order is no excuse if it is one which the accused ought in. the ordinary
course to know. But a misapprehension reasonably arising from want of clearness in the order is a
ground for exculpation. The existence of the orders and the fact of the neglect must be proved.
The order contravened, or a certified copy where such copy is admissible under

section 120 (4), must be produced on oath to the court, and the court wil1 make It note in the
proceedings of its having been so produced. Evidence must also be given to show that the order
was duly posted or brought to the notice of the accused, or that he was otherwise in a position to
be acquainted with its contents. Concealment of venereal disease in contravention of standing
orders directing personnel suffering from such disease to report sick is to be dealt with under this
section.

SPECIMEN CHARGES

The accused (0.No. Name, Rank) of B.N.S…………..a sailor of the

Bangladesh Navy, is charged with:

Neglecting to obey a local order,

in that he, at………………, on……………………… .,went into street, contrary to

paragraph of the Daily Routine Order Serial No... .dated ,which directed that the said street was
out of bounds to all ranks.

43. Fighting and quarreling,-Every person subject to this Ordinance who-

(a) fights or quarrels with any other person, whether subject to this Ordinance or not;

(b) uses threatening, abusive, insulting, or provocative words or behavior likely to cause a
disturbance ;

(c) being concerned in any quarrel, affray or disorder, refuses to obey any officer, who orders
him into arrest, or uses criminal force to or assaults any such officer ;

(d) uses criminal force to or assaults any person, whether subject to this Ordinance or not, in
whose custody he is lawfully placed, and whether he is or is not his superior officer; or .
(e) resists any escort whose duty it is to apprehend him or to have him in charge, shall be
liable to suffer short imprisonment

NOTES

1. Clauses (a) and (b) of this section create two offences which involve aggressive conduct
to any person in or out of the Service, viz :
 (i) Quarrelling or fighting with any other person.

(ii) Using threatening, abusive, insulting or provocative words or behaviour likely to cause a
disturbance.

2. Quarrel or fight.- This makes duelling an offence. It also covers certain forms of disorderly
conduct committed on shore in which civilians are involved or fights between men of different
ships or between naval sailors and members of other Services.

3. In laying a charge under clause (b) the words used or the behaviour alleged must be
specified in the particular of the charge.

4. Clause (c).-(i) A person may be charged under this clause whether the officer who ordered
him into arrest was of inferior or superior rank, but where the officer was of superior rank the
offender may be charged under section 39 or section 40, as the case may be.

(ii) A charge alleging using criminal force and/or assaulting 'would be bad for duplicity, i.e,
that it discloses two offences ;-Rules 126. In such cases, separate charges may be preferred.

(iii) An accused charge under, this section with using criminal force could be found guilty of
assault. Provided the court was satisfied that the other ingredients of the offence were proved;-
section 113 (1) (b)

(iv) As to being in a state of intoxication as a defence to a charge, see notes to section 59.

(v) Criminal force and assault-See note 1 to section 39. For affray see

section 159 PC,

5. Clause (d)-A charge may be laid under this clause for using criminal force to or assaulting, a
civil policeman, if the offender is subject to naval law, and has been placed in the policeman's
custody by an officer, Master Chief Petty Officer, Chief Petty Officer or Petty Officer.
See also note 4 above.

6. Clause (i) Threatening words and a threatening attitude might amount to resisting an escort if
the threats were sufficient to deter the escort from arresting the accused. Resistance may be
passive, e ,., a man lying down and refusing to move, if physically able to move, could be said to
resist. The particulars of the charge should specify the nature of the resistance. The court should
use their service knowledge to determine whether it was the duty of the escort to apprehend the
accused or to have him in charge. Breaking away from an escort is not an offence under this
clause, but may be charged under section 61.

(ii) There are two separate offences under this clause. An accused, who has been apprehended,
should be charged with "resisting escort whose duty it was to have him in charge"

(iii) Resisting an escort whose duty it was to apprehend him applies only when the "accused
immediately resisted an escort on being apprehended. It is not essential that a sailor should be
informed beforehand that he is about to be arrested.

No.2

Behaviour Likely to caused a disturbance,

in that he, atleftleft, onleftleft, while attending a cinema show, by abusing certain members of the
audience behaved in a manner likely to cause a disturbance.

No.3

The accused (p. No. or O. No., Rank Name) of B.N.S. . . . . ……..... . . . . .

an officer or a sailor of the Bangladesh Navy, is charged with;

When concerned in a quarrel, refused to obey an officer

who ordered him into arrest,

in that he, onleftleft,on.. .. .. . . .., atrightright……………after having quarreled with and
struckleftlefton being ordered into arrest by Lieutenant.. . .. .. .. .

. . . .of B. N.S... . . . . . . refused to obey the order.

No. 4

Using criminal force to a Person in whose custody he was placed,

in that he, at .. .., on.. .. .. . .. . .. .., when placed by Lieu.. ……... .: ......

of B.N.S...leftleftin the custody of Police Constableleftleft……………. .......

hit the said Police Constable on the face with his hand.

No.5

Resisting an escort whose duty it was to have him in charge, in that he, at , on while
under escort of Petty Officer...................................

.. . .. .of B.N.S.. . . . . . . . . .resisted the escort by kicking and struggling.

44. Obstruction of provost officers. Every person subject to this Ordinance who, willfully
obstructs or willfully refuses, when called on, to assist, any provost officer or any person
(whether Subject to this Ordinance or not) legally exercising authority under or on behalf of a
provost officer, shall be liable to suffer short imprisonment.

Explanation.- For the purposes of this section, a "provost officer" shall be deemed to include a
provost-marshal appointed under this Ordinance or under the Army Act, 1952 (XXXIX of 1952),
or the Air Force Act, 1953 (VI of 1953) and any person legally exercising authority under him or
on his behalf.

NOTES
 1. As to the appointment and duties of a provost marshal, .See section 94. The court may
exercise their service knowledge as to whether a person was a provost officer or a person legally
exercising authority under him or on his behalf, but it is open to the accused to Show that the
person he is charged with obstructing was not properly appointed provost marshal or was not a
person legally exercising authority under or on behalf of provost marshal.

2. Provost Officer means a naval provost marshal, an assistant to a naval provost marshal and
any other officer being a provost officer within the meaning of the "Explanation" to this section.

3. Since naval, military and air force police exercise authority under provost officers, to
obstruct them or to refuse to assist them when called upon to do so would be an offence under
section Naval patrols exercising authority on behalf of a provost officer are included in the term
any person, but members of the regulating branch do not come within this definition unless they
are actually exercising authority under or on behalf of a provost officer.

4. The obstruction or refusal must be wilfull, i.e:, deliberate. Standing by and doing nothing
is not obstruction unless there is a legal duty to do something.

SPECIMEN CHARGE

The accused (0. No., Name. Rank) of B.N.S.. . . . . . . …….. . . . sailor or

the Bangladesh Navy, is charged with :

Wilfully obstructing a person legally exercising authority

Under a Provost Officer

in that he, at…………,on.. .. .. . . .., willfully obstructed Petty

Officer……………….....O.No………..who has attempting to arrest a sailor by endeavouring to
pull the said sailor out of the grasp of the said Petty Officer, well knowing that the said Petty
officer was a member of the Naval police legally exercising authority under a provost officer.

(V) Desertion and Absence Without Leave

 (45). Definition of desertion.-A person is guilty of desertion within the meaning of this
Ordnance if he leaves or fails to attend at his ship or place of duty with the intention of remaining
permanently absent from duty without proper authority or if, having left or failed to attend at his
ship or place of duty in any circumstances; be does any act with the like intention.

46. Desertion.-(l) Every person subject to this Ordinance who deserts shall.

(a) if he commits the offence on active service or when under orders for active service, be
liable to suffer long imprisonment; and

(b) if he commits the offence under any other circumstances be liable to suffer abort
imprisonment.

(2) A person convicted of desertion shall, except so for as the naval tribunal by which he is
tried of the Chief or Naval Staff may otherwise. direct, forfeit all pay, bounty, salvage and
allowances earned by him, all annuities, pensions and gratuities granted to him, and all clothes
and effects left by him on board his ship or at his place of duty.

(3) Every person subject to this Ordinance who incites any other person subject to service law
to desert, or knowingly harbours any such deserter shall be liable to suffer short imprisonment.

NOTES

(1) (a) On charges of desertion the on us is on the prosecution to prove :

(i) absence of the accused from his ship or other place of duty;

(ii) the intention of remaining permanently absent from duty without proper authority;
 (iii) that the intention existed at the time when he left or failed to attend at his ship or
other place of duty, or at some time during his absence.

(b) The necessary intention can be proved:

(i) by some admission made by the accused; or

(ii) by inference from his conduct (which includes any statements made by him).
Apart from an admission by the accused, his intention can rarely if ever be proved otherwise than
by an inference from his conduct, which to establish a charge of desertion, must be such as to lead
to the conclusion that he intended to remain permanently absent from his ship or other place of
duty.

2. The word "act" in section 45 is not to be construed in a narrow sense but can be treated as an
equivalent to "conduct". Thus while, for example, obtaining civilian employment or moving to
some place away from his home where he would not be likely to be found are positive acts from
which it is Open to the court to infer the necessary intention, the requirement that there should be
an "act" will also be satisfied by evidence that the accused stayed away from his ship or other
place of duty for so lengthy a period as leads the court to conclude that he had that intention.

3. No particular length of time can be laid down as being necessary or sufficient to justify the
court in drawing the inference that the accused intended to remain permanently absent from duty
and each case must be judged in the light of all the surrounding circumstances.

4. The fact that the accused was recovered by being apprehended is not conclusive evidence
that he did not intend to return since he may have been arrested before the date when he intended
to return or while on his way for that purpose. This fact is, however, material evidence to be
considered in the light of all the other facts and may in some cases justify the inference of
desertion being drawn from a shorter length of absence than would otherwise be the case.
Similarly the fact that the accused surrendered is not conclusive evidence that he did not intend to
desert at the material time, i.e., when he left or failed to, attend at his ship or place of duty or at a
later time prior to his surrendering, since he may subsequently have changed his intention.

5. The inference, drawn from the conduct of the, accused by his remaining absent and by his
other acts, amounts to prima facie evidence of his intention to desert and the court is entitled on
this evidence to convict him accordingly. However, if on production of evidence by the defence
in rebuttal, the court is not satisfied that the accused had the necessary intention to remain
permanently absent from duty, the accused may be acquitted of the charge of desertion.
 6. The ingredients of offence of the desertion are :

(a) leaving a ship or place of duty or failing to attend at his ship or place of duty with the
intention of remaining permanently absent,

or

(b) having left a ship or place of duty in any circumstances(perhaps legitimately), doing
any act with the intention of remaining permanently absent.

7. The prosecution must, as always, prove every ingredient of the offence, including the
accused’s "intention". This may be proved by direct evidence, e.g. an admission by the accused or
remarks made by him to his mess mates'; or it may be proved from circumstantial evidence, e.g.,
state of accused's kit, change of name, circumstances in which accused has been living, accused
engaging in civil employment or joining other armed forces, possession of a passport with recent
visa, length of absence.

8. It is not necessary, in order to sustain a charge under this section, that the deserter should
have fully succeeded in affecting his escape, but he must have left his ship or place of duty or
failed to return to it.

9. If the circumstances would otherwise justify his trial for desertion, a person may legally be
convicted of that offence even if he bas subsequently repented and returned of his own volition.

10. A person who deserts while away from his ship or other place of duty, whether at the time
he is legally absent or not, should be charged as deserting from his ship or place of duty.

11. A Person who deserts while in transit from one ship or place of duty to another can be
charged with desertion from his place of duty, namely the route by which he has been ordered to
travel, or can be charged with desertion in failing to attend, according to the circumstances.

12. If a person who is not otherwise subject to the Ordinance fails to comply with lawful
instructions to join a ship or other place of duty for call up or training or otherwise, he may be
charged with desertion by failing to attend at the ship or place of duty which he is required to
join; see sections 2 (1) (b) and (c).
 13. In an appropriate case; a charge of attempting to desert may be drawn, but the occasions on
which a person may be convicted of attempting to desert arc necessarily rare. When an accused is
charged with attempting to desert and it transpires that he actually deserted he may nevertheless
be convicted of the offence charged. A person remains liable to be convicted of an attempt even
though the court might consider that the attempt had been perfected in the commission of the full
crime.

14. A person charged with desertion may be found guilty of attempting to desert of being
absent without leave, and a person charged with attempting to desert; may be found guilty of
being absent without leave. Again, a person charged under section 46(1)(a) with deserting or
attempting to desert in circumstances involving a more severe punishment may be convicted by
special finding in an appropriate case under section 46(1)(b), of having committed the offence in
circumstances involving a less severe punishment; see sections 112 and 113(1).

15. An inciter is one who counsels, commands, encourages or advises the commission of an
offence even though the incitement, has no effect.

16. Harbour -This term is defined in section 52-A of the Penal Code, according to which it
includes "the supplying a person with shelter, food, drink, money,. clothes, arms, ammunition or
means of conveyance, or assisting a person by any means, whether of the same kind as those
enumerated in this section or not, to evade apprehension." The gist of the offence is concealment
of deserter to prevent his apprehension. Evidence should; if possible, be given that the accused
knew the person harboured to be a deserter; but if the fact of harbouring is proved, the court may
infer knowledge from the circumstances.

17. Owing to the semi-automatic forfeitures consequent on convictions of desertion, section

77 should not be used to convict of the substantive offence of desertion a person who only aids;
abets, counsels or procures the desertion of some-one else.

18. As to forfeiture of service for pension or gratuity which follows upon desertion, and
regulations as to restoration of service so forfeited, s« Pay and Allowances Regulations and
Pension Regulations. The period between desertion and apprehension does not, reckon as service
towards discharge, vide rule 66(4).
 19. The time limit laid down by section 105(1) applies to offences created by sub-section (3),
but does not apply to desertion. Section 105(4), however, provides that a person (other than an
officer) who deserted when not on active service and who has since served with any portion of
the armed forces in an exemplary manner continuously for not less than three years, shall not be
tried for his desertion. Section 105(4) thus deprives a naval tribunal of jurisdiction to try a person
to whom it relates and once a tribunal become aware that the provisions of section 105(4) apply
to the accused whether the matter has been raised by him or not, it should adjourn and report to
the convening authority. It should be borne in mind that a deserter is merely struck oft' the
effective list nd not dismissed. On return he is brought on the strength and has never ceased to be
subject to naval law.

20. Persons cannot be charged jointly with desertion, but can be so charged with "knowingly
harbouring a deserter" under sub-section (3).

21. As to persons who are not subject to service law who abet the desertion of an officer or a
sailor or knowingly harbour a deserter, see sections 135 and 136 of the Penal Code.

22. It is desirable to allege in a charge of desertion or absence without recording the fact of
accused's absence leave the commencement and termination of absence on specific days and in
nearly every case it is possible to do so. There is, however, no legal objection to alleging
desertion or absence as commencing "on or about" a particular date, or "not later than" a
particular date. This may be necessary where all records have been destroyed.

23. The following are the most usual ways of proving the commencement of a desertion:

(i) by a witness stating that he found the accused to be absent

by a witness producing one of the following documents and identifying the accused as the
(ii) person to whom it relates:

(a) record of the declaration of a board of inquiry made in accordance with Rule 259(3).

(b) certified true extract of the entry made against the name of Such a deserter in the ship's
books in accordance with Rule 259(6).

(c) a certified true copy of any record made in any service book recording the
fact of accused's absence.
 24. The following are the most usual ways of proving the termination of a desertion:

(i) by a witness stating that be arrested the accused or that the accused surrendered to him;
(ii) by a witness producing one of the following document and identifying the accused as
the person to whom it relates:

(a) a certificate of arrest or surrender under section 120(5);

(b) a certificate of arrest or surrender under section 120(6) ;
(c) a certified true copy of any record made in any service book recording the fact of
the termination of accused's absence.

SPECIMEN CHARGES

The accused (0. No. Name,) of B.N.S………………………., a sailor of the Bangladesh Navy,
is charged with:

No.1

When under orders for active service deserting the service, in that he, at , on
……………, when under orders of active service absented himself from B.N.S .from
.to……………… .with intent to avoid serving overseas.

No.2

Deserting the service,

in that he, atcentercenter, onleftleft.absented himself from his ship until apprehended by the civil
police at …………………...on....................

No.3
 Knowingly harbouring a deserter, in that he, at. . . . . . . . . ., on. . . . . . . . concealed
in his house leading seaman. . . .of B.N.S.. …….. , whom he knew to be a deserter from the
said ship.

47. Absence without leave. -Every person subject to this Ordinance "who, without being guilty
of desertion,-

(a) absents himself without leave;

(b) improperly leaves his ship or place of duty; or

(c) incites any other person subject to service law to absent himself without leave or improperly
to leave his ship or place of duty shall be liable to suffer short imprisonment.

NOTES
1. This section creates three offences:

(a) absence, without leave;

(b) improperly leaving ship or place of duty;

(c) incitement to commit (a) or (b).

2. Two or more accused persons cannot be charged jointly with the offences specified in
clauses (a) and (b) of this section.

3. Only one continuous period of voluntary absence without leave should be charged in anyone
charge. If a court trying a charge of absence without leave 'find that the period of absence
alleged’ in the charge is really made up of -two separate periods of absence they may under Rule
155(4) and (5) convict the accused by special finding of being absent without leave for one of
these periods but not for both of them, since that would be convicting him of two offences under
one charge.

4. Absence without leave must be voluntary.-(a) If it is proved that the accused was absent
and that he had not been granted leave, the court may, in the absence of any satisfactory
explanation by him, infer that his absence was voluntary.

(b) The absence is voluntary if it is due to the deliberate intention of the accused to be absent,
or if it is caused by means which were within his own control. Thus, if a sailor gets drank so that
he is unable to return; or if he goes to sleep when returning to duty and is carried past his station
so that he is unable to get back in time; or if he loses his railway warrant and has insufficient
money so that he cannot get back in time; in all these cases he is guilty of absence without leave.

(c) When, however, a person is arrested, he ceases from that moment to be guilty of absence
without leave, even though be voluntarily committed the act which led to his arrest and was
aware of the risk which he ran; his absence is regarded as involuntary because he is physically
prevented from returning by the action of another. This applies equally whether he was arrested
for a crime or for illegally entering a foreign country, unless he entered it with the intention of
being arrested.

(d) Again, if a man meets with an accident or contracts an illness which renders him unable to
travel and so prevents his return to duty, he is not guilty of absence without leave: although the
accident was due to his own negligence or it was his own fault that he contracted the illness, his
absence is regarded as involuntary because a new cause outside his own wrong doing, has
intervened to prevent his return If a sailor who is on leave is thus prevented from returning, but
fails to report the fact, he should be charged with an offence under section 75, or if his ship's
orders require him to report the fact, under section 42.

(e) If, however, a sailor on leave deliberately inflicts an injury on himself with the intention of
rendering himself unable to return to his ship or place of duty, he is guilty, not only of an offence
against section 57 (b), but also of absence without leave until he either returns to his ship or place
of duty or is admitted to a naval, military, or air force hospital.

(f) It will be seen from the examples in (c) and (d) above that a person who is guilty of absence
without leave may cease to be so guilty through his absence becoming involuntary, even though
he had no intention at that time of returning to his unit. If, however, when the compulsion is
removed, he fails to rejoin his ship or place of duty immediately, but remains absent, he may be
charged with having been continuously absent from the date when he first went absent until the
date of his final arrest or surrender. His failure to return when the compulsion is removed shows
that his absence during the whole time was in fact voluntary and not due to the compulsion.

(g) Equally a man who, though absent from his unit, is Dot guilty of absence without leave
because his absence is involuntary, will become guilty of absence without leave if he remains
absent when the compulsion is removed. If a sailor on leave commits a crime and is sentenced to
imprisonment by the civil power, he is not guilty of absence without leave so long as he remains
in custody. But, if his leave has expired when he is released and he does not then return
immediately, he is guilty of absence without leave from the time of his release.
 (h) Absence without leave must be culpable. Thus a sailor who leaves his ship or place of duty
because he reasonably and honestly though mistakenly believes that he has been granted leave
has committed no offence, but a person who applies for leave and then leaves his ship or place of
duty believing that it will be granted but before he has been notified or has reason able grounds
for believing that it has been granted is guilty of absence without leave.

(i) With regard to the ways in which the commencement and termination of an absence without
leave may be proved, see notes 24-25 to section 46.

(j) The mere reporting by an absentee to a provost officer or any other officer will not of itself
terminate a voluntary absence nor" will the giving of orders by any such officer to the absentee to
return to his unit, and the voluntary absence will continue to run until the absentee in fact joins
his ship or place of duty. If, however, he is taken into custody when he so reports, his absence
will cease when he is taken into custody, and in such a case a certificate may be given under
section 120 (5) or (6) as the case may be.

5. An accused convicted of an offence of absence without leave win forfeit pay and allowances
for the period of absence under section 82 (a) and rule 97, but he will not forfeit any service by
reason of such absence.

6 When a person bas been absent for 30 clear days a Board of Inquiry must be assembled
under rule, 259.
7 If it is proved that a person has overstayed his leave, it will be for him to show that he had
"sufficient cause" for doing so, e,g. sickness or the unexpected interruption of the ordinary means
of transit. If however, any evidence as to the cause of his failure to return is known to the
prosecutor, it should be adduced, leaving it to the court to decide as to the sufficiency of such
cause.

8. By the wording of the section (i.e. "without being guilty of desertion) an accused cannot be
found guilty of desertion as well as absence without leave or improperly leaving his ship but, if
charged with desertion, he can be found guilty of either absent without leave or improperly
leaving his ship under section 112 or of attempt to desert under section 113 (a).
9. If a person not otherwise subject to the Ordinance is called up for service or training and
fails to report and a charge of desertion does not lie, he may be charged with absence without
leave See Specimen Charge No 4. below.

10. Improperly leaving ship or place of duty.-Although the maximum punishment is the
same this offence is regarded as more serious than absence without leave. The essence of the
offence is leaving a ship or general place of duty without leave, but with the intention of returning
ultimately. If there were evidence that the accused intended to remain permanently absent, the
proper charge would be desertion, under section- 46.
 11. 'The accused must have left his ship or place of duty "improperly".

He clearly does this if he fails to comply with Standing Orders, e.g. in hot handing in his leave
card, or, not ticking off" in the leave book, or, in going ashore when no leave, or no leave to his
watch, has been piped. Where however a person obtains leave by a false pretence, it is better to
charge him under section 75 with obtaining leave by false pretences, as an act to the prejudice of
good order and naval discipline.

12. Place of duty means here a general place of duty e.g. a Naval establishment so charges of
saulking from work or quitting a specific post cannot be brought under this section.

13. Even in the case of improper leaving, it is necessary to state the period of absence in the
charge, in order to enable the court to punish the offender by forfeiture of pay (mulcts) on the
appropriate scale.

14. Incitement.-An inciter is one who counsels, commands encourages or advises the
commission of an offence even though the incitement bas no effect.,

15. Section 77 should not be used to C9Dvict of the full offence a person who only aids, abets,
counsels or procures someone else to commit it as such a conviction would render the former
liable to mulcts.

SPECIMEN CHARGES

The accused (O. No. Name, Ranks) of B.N.S ……………….., a sailor

of the Bangladesh Navy, is charge with :

No.1
Absenting himself without leave,

in that he, absented. himself without leave from ……….to ….............from

B.N.S.......................

No.2

Improperly leaving place of duty,

in that he, at………………onleftleft……..., improperly left his place of duty,

namely the Naval Emergency Party and remained absent without leave
from………….to…………

No.3

Inciting a person subject to service law improperly to leave his ship.

in that he, at…………. ,on………….. .incited (0. No. Name, Rank a

sailor of the Bangladesh Navy).. . . . . . . . ;improperly to leave his ship, B.N.S.. .………. . .

No.4

The accused (0. No., Name, Rank) of B.N.S …………..(if any), a sailor of the Bangladesh
Naval, Fleet Reserve called up for undergoing training, is charged with,:

Absenting himself without leave,

in that he, at. .. .. . .. .. on. .. .. .. .. ., having been duly called up for training absented himself
without leave by failing to attend on board B.N. S.. . . . . .

48. Failure to report deserters and absentees.-Every person subject to this Ordinance, who
knowing' that any other person subject to service law has deserted, absented himself without
leave, or, improperly left his ship or place of duty, or is attempting to desert, to absent himself
without leave or improperly to leave his ship or place of duty,-

(a) fails to report the fact without delay: or

(b) fails to take any steps within his power person to be apprehended, shall be liable to suffer
short imprisonment.

NOTES

1. Charge drawn under this section from a useful alternative to charges of inciting offences
under sections 46(3), and 47(c), or of abetting

the offences of desertion etc. read with section 77.

2. The report must be made to someone in authority.

3. If the charge is under clause (b) of this section, the particulars must specify the precise steps
which it was in the power of the accused to take in order to cause the deserter or intending
deserter etc. to be apprehended.

SPECIMEN CHARGES

The accused (0. No.,Name, Rank) of B. N.S................................a sailor of

the Bangladesh Navy, is charged with:

No.1

Knowing that a person subject to service law had absented himself Knowing that a person
subject to service law had absented himself without leave, failing to report the fact without
delay,
in that heatleftleft,onrightright, knowing that (0 No., Name,

Rank), II. sailor of the Bangladesh Navy, had absented himself without leave from his ship,
B.N.S……….,failed to report the fact without delay.

No.2

Knowing that a person subject to service law was attempting to desert, failing to take steps
within his power to cause the said person to be apprehended,

in that be at……….on………..knowing that ( O.No., Name, Rank), a sailor of the Bangladesh

Navy, was attempting to desert his Ship. B.N.S………..failed to raise an alarm for the
apprehension of the said sailor.

(vi) Navigation and Flying Offences

49. Loss or hazarding of ship or aircraft.-Every person subject to this Ordinance who, either
wilfully or by negligence-
(a) causes or allows to be lost, stranded or hazarded any of the naval ships or vessels; or

(b) causes or allows to be lost or hazarded any of Government’s aircraft, shall be liable, if he
acts wilfully or with willful neglect, to suffer long imprisonment, and in any other case to
short imprisonment.

NOTES

1. Wifully in bothp1aces means that the accused deliberately did some act or omitted to do
something with the intention of losin8, stranding

or hazarding a ship or aircraft.

2. With wilful neglect means that the accused deliberately omitted to do something or to take
some precaution with the intention of losing, stranding or hazarding a ship or aircraft or with a
reckless disregard of possibility that such a loss, etc, might result from his neglect; that is to say,
his omission must not be merely due to carelessness or negligence; it must be made deliberately.

3. In any other case means cases where an accused has acted negligently, i.,e., by negligence,
but not wilfully or with wilful neglect as defined in Note I above and subject to that, the test to be
applied is that given in Note I to section 34.
4. Causes or allows; the ordinary dictionary meaning must be given to these words (causes-
effects or' brings about, allows-permits) except that a person is not to be convicted of allowing an
occurrence unless some act or omissing on his part has contributed to it. The following examples
will help to illustrate the difference between "causes" and "allows":

(a) If the Captain were on the bridge personally directing operations when a disaster
occurred, he should be charged with 'causing" and not with "allowing".
(b) If the Captain were on the bridge when some error in an order given by the Navigation
Direction Officer caused the ship to run ashore, "allowing" might be the more appropriate
charge against the Captain, with the direct charge of "causing" the grounding against the
Navigating Officer; but this must depend on the circumstances.
(c) If a Captain were below at the time of a disaster and the prosecution merely contend that
he ought to have been on the
bridge, he should normally be charged under .section 34 with neglect of duty in leaving
the bridge in circumstances which should be stated, or in not being on the bridge when he
should have been.
(d) If the Captain' (or Navigation Direction Officer) were to be tried for a disaster to his ship
while in charge of a Pilot when a "common degree of attention" on his part "would have
prevented the disaster" a charge of "allowing" would be correct.
The above examples are intended merely to give general guidance. Whether to charge the
accused with "allowing" or "causing" the occurrence can only, be decided upon the
circumstances and merits of each particular case.

5. Loss.-This means total loss. A surface ship can be lost without necessarily being lost to
view as, for example, when salvage operations for her recovery are abandoned. Salvage
operations undertaken for the purpose merely of saving anything of value that may be in the hull,
but not the hull itself, will not prevent a ship from being regarded as lost. A vessel which is
wholly submerged and incapable of corning to the surface by her own efforts is lost within the
meaning of this section;

The same applies to aircraft which is lost when it is written off charge as such,
notwithstanding that some components are salvaged.

6. Stranding.-It is not sufficient to prove that the ship touched ground It must be established
that the ship ran aground, or into some object affixed to the ground, e.g., a groyne, and remained
fast for a time (i.e., other than momentarily). A ship is not stranded if she scrapes over a shoal
patch. In cases of doubt on alternative charge of hazarding should be added.

7. Hazarding.-There is no official definition of "hazarding". The word has always been

regarded as having here its ordinary dictionary sense of "exposure to danger". When a large ship
is brought into risk of collision with a small boat which could not endanger her, the large ship
cannot be said to be hazarded.
A charge of hazarding can sometimes be added as an Additional or alternative charge to one
of losing or stranding. Where it is established that the ship was hazarded before she was stranded
or loss, both charges can be found proved. If; however, the act causing the stranding or loss is
clearly the first hazardous action, a charge of hazarding' should not be brought, except as an
alternative (if there is doubt whether the stranding or loss will be proved).

8. In relation to aircraft this section applies only to losing or hazarding aircraft. Alternative
charges under sections 50, 51 or 52 should be drawn, if necessary, in addition to a charge under
this section.
 9. This section should be regarded as applying only to persons who are responsible for the
navigation control, management, or propulsion of the-ship or aircraft. Thus, if a person
unconnected with these responsibilities does something by which the loss or hazarding is caused
e.g., leaving a water-tight hatch open, or smoking near inflammable matter, he should not be
charged under this section.

10 The offences created by this section can be committed in circumstances involving a higher
degree of punishment, i.e., "wilfully" or "with wilful neglect" or in circumstances involving a less
degree of punishment i.e. where the offence is committed as a result of mere carelessness or
negligence. Section 112 empowers a court when the accused is charged with committing an
offence wilfully or with wilful neglect, to convict him by special finding in an appropriate case,
of having committed the offence by mere negligence-i.e. without such deliberation as alleged in
the charge.
11. (a) As regards the evidence to be given on navigational matters when a charge is brought
under this section, and the documents which should be made available at the trial, see rules 218 to
221.

(b) Rule 222 empowers a court to "formulate a fresh allegation" of negligence against the
accused during a trial under this section, if they consider that the accused has been negligent in
any way not specifically stated in the charge on which he is being tried. The court, if satisfied that
the fresh charge thus formulated has been established, may find the accused guilty of such fresh
charge. It must be noted that this exceptional

procedure is only authorized during a trial for an offence under this section. In all other cases,
when any addition to, omission from, or alteration in the charge is considered necessary, the
normal procedure to be followed is prescribed in rule 143(2).

SPECIMEN CHARGES
The accused (Rank, Name, P.No.) of B.N.S. . . . . . . . . . . . . . ,an officer of the Bangladesh Navy,
is charged with:

No.1

Wilfully allowing a naval ship to be hazarded,

in that he, at. . . . . . . . . . . ,on. . . . . . . . ,being the Captain of B.N.S.. . .. .. . wilfully allowed the
said ship to be hazarded, when he being on the bridge of the said ship allowed the execution of a
wrongful order, namely. . . ... .,

given by Lt. Commanderleftleft,the Navigation Direction Officer, thereby exposed the said ship
to the danger of running ashore.
 No.2

By negligence causing a naval vessel to be stranded,

in that be, atleftleft,on rightrightbeing Captain of a naval vessel namely…………as so negligent

in…………………. rightrightthat it caused the said vessel to be stranded.

50. Dangerous flying.-Every person subject to this Ordinance who is guilty of any act or
neglect in flying, or in the 'use of any aircraft, or in relation to any aircraft or aircraft material,
which causes or is likely to cause loss of life or bodily injury to any person, shall be liable.

(a) if he acts wilfully or with wilful neglect, to suffer long imprisonment;

(b) in any other case to suffer short imprisonment.

NOTES

1. Wilfully with wilful neglect and in any other case see notes 1, 2 and 3 to section 49.

2. The section is wide enough to cover the acts and omissions of ground crews and passengers
and is not limited to persons actually flying aircraft.

3. Each offence can be committed in circumstances involving a higher degree of punishment

(i.e. if the accused acts wilfully or with wilful neglect) or in circumstances involving a less
degree of punishment (i.e. If the accused did not act wilfully or with wilful neglect) and section
112 enables a court when the accused is charged with having committed the offence in
circumstances involving a higher degree of punishment to convict him by special finding if
appropriate, of having committed the offence in circumstances involving a less degree of
punishment. The converse, however, is not the case.
4. For other offences relating to aircraft, see:

Section 49 (loss or hazarding aircraft);

section 51 (low flying);
Section 52 (annoyance by flying);
 Section 53 (Prize offence by commanding officers);

section 54 (other prize offences);

Section 55 (inaccurate certification of aircraft) ; and

Section 56 (improper carriage of goods by aircraft).

SPECIMEN CHARGE

The accused (Rank. Name. P.No.) of B.N.Srightright, an officer of the Bangladesh Navy, is
charged with:-

Being guilty of a wilful act in the use of aircraft which

was likely to cause loss of life - or bodily injury to a parson.

in that he atleftleft.airfield, on……………rightright.when pilot of a Government aircraft

(type)leftleft, Norightright…………….... wilfully taxied the said aircraft across a hangar at a
speed likely to cause loss of life or bodily injury to persons in the said hangar.

51. Low flying - Every person subject to this Ordinance who, being the pilot of one of the
Government's aircraft, flies it at a height less than such height as may be provided by any
regulations issued under the authority of the Government, except

(a) while taking off or alighting; or

(b) in such other circumstances as may be so provided shall be liable to suffer imprisonment

NOTES

1. Only the pilot of one of the Government's aircraft can be charged under this section.

2. Government.-See section 4 (xii).

 3. The regulations regarding low flying mist be such as are issued under the authority of the
Government.

4. Obviously a pilot must fly low when taking off or landing and he should also not be
convicted under this section if he flies low in other pilot should not be convicted under this
section if he flies low in circumstances in which a reasonably competent and careful pilot would
have felt obliged to do so hence it is advisable to use the words "without lawful excuse." in the
charge.

It may be desirable to add an alternative charge under section 75 of improperly and without
reasonable excuse flying the aircraft at whatever low level alleged. The reason for laying the
alternative charge is that in adverse weather a pilot may well have been justified in flying below
the permitted height but not in flying as low as he did. Similarly, if it should be desired to try a
pilot for flying lower than he should have done in the prevailing conditions (but above the
prescribed height), the charge should be brought under section 75.

5. If the low flying occurred over a place where the pilot has had previous associations. e.g.
over his home or his school evidence may be produced on this matter to suggest a motive for
associating the accused with the alleged low flying, although this itself would never be sufficient
to justify a conviction.

6. For reference to all other offences in this Ordinance connected with aircraft, see Note 4 to
section 50.

7. When a witness gives evidence of his seeing a low-flying aircraft, and as to its identification
and the height at which he saw it flying, he may refresh his memory from any note which he
made at the time or while the mater was still fresh in his memory, about its height or its
identification numbering or lettering; see Evidence Act, section 159.

SPECIMEN CHARGE

The accused (Rank, Name, P. No.) of B.N.S………………. , an officer of the Bangladesh

Navy, is charged with:

No.1
 Being the pilot of an aircraft belonging to the Government, flying it at a height less than the
height provided by regulations,

in that he, at…………….. in the vicinity of.. . .. .. .. ……..., on.. .. .. .. . .. .

when pilot of a Government aircraft (type) . . . . . . . . . . ., Norightright………...flew the said

aircraft without lawful excuse at a height less than the height of....

.. .. .. .., provided in Regulationrightright.. .. .. . .. .. .. .. . issued under the authority of the

Government.

52. Annoyance by flying.-Every person subject to his Ordinance who, being the pilot of one
of the Government's aircraft, flies it so as to cause, or to be likely to cause, unnecessary
annoyance to any person shall be liable to be dismissed from the service.

NOTES

1. Only the pilot of one of the Government's aircraft can be charged with this offence.

2. Government.-See section 4 (xii).

3. The annoyance caused must be unnecessary and, if the pilot has a reasonable excuse for
flying as he did, he should be acquitted. He has a reasonable excuse if he acted as a reasonably
careful and capable pilot, who has a proper regard for his responsibilities to others, would have
acted in similar circumstances.

4. For reference to all other offence in the ordnance connected with aircraft, see Note 4 to section
50.

SPECIMEN CHARGE

The accused (Rank, name, P. No.) of BoN.S. ………….... ..rightright, an officer

of the Navy, is charged with :
Being the pilot of an aircraft belonging to the Government, flying it so as to cause or to be
Likely to cause unnecessary annoyance to a person,

in that he, at……………..from..leftleft……..hours to……………. .hours,

on………….. when pilot of a Government aircraft (type). . . . . . . . … ., No. . . . . . . . . . . . . . . .

without reasonable excuse flew the said aircraft over and around the Girls High School in a
manner likely to cause unnecessary annoyance to persons in the said school.

(vii) Prize Offences

53. Prize offences by commanding officers.-Every person subjects to this Ordinance who
being in command of any of the naval ships, naval vessels or aircraft,-

having taken any ship, vessel or aircraft as prize, fails to send, to the High Court or to some
other prize court having jurisdiction in the case, all the ship papers or aircraft papers, as the
(a) case may be, found on board;
(b) unlawfully makes any agreement for .ransoming of any ship, vessel, aircraft or
goods taken as prize; or in pursuance of any such agreement as aforesaid, or other
wise by collusion, restores or abandons any ship, vessels, aircraft or goods taken as
prize; shall be liable to suffer long imprisonment.

NOTES

1. This section only applies to persons in command of naval ships, naval vessels or aircraft.

2. Fails.-The test to applied in charges under clause (a) of the section is that given in Note 1
to section 34.

3. Ship's papers.:-The following papers are usually carried by Merchant Ships of all
nationalities:

(i) Certificate of Registry or Nationality.

 (ii) Official Log-Book.

(iii) Clearance from the last port of call.

(iv) Bill of Health.

(v) Bills of lading or manifest of Cargo.

(vi) List of passengers.

SPECIMEN CHARGES

The. accused (Rank, Name,P. No.) of B.N.S…………………..,an officer

of the Bangladesh Navy, is charged with:

No. 1

Being in command of a naval ship having taken a vessel as prize, failing to a High Court or to
some other prize court having jurisdiction in the case all the ship's papers found on board the
said prize,

in that he, atleftleft,on……………rightright, while in command of B.N.S….....

having taken a vesselrightright……………...as prize, failed to send..........................

(here specify ships papers which it is alleged the accused failed to send) found on board the said
prize to a High Court or to some other court having jurisdiction in the case.

No. 2

Being in command of a naval ship, by collusion unlawfully restoring

goods taken as prize.

in that he, atleftleft, on…………….rightright, while in command of B.N.S………

having takenrightright(here specify goods) as prize; unlawfully by collusion restored the said
goods to......................

54. Other prize offences.-Every person subject to this Ordinance who -

 (a) strikes or otherwise ill-treats any person who is on board a ship, vessel or
aircraft when taken as prize, or unlawfully takes from any such person any thing-in his
possession:
(b) removes out of any ship, vessel or aircraft taken as prize otherwise than as safe
keeping or for necessary use and (service of any of the forces) any goods not
previously adjudged by a prize court to be lawful prize; or
breaks bulk on board any ship, vessel or aircraft taken as prize, or detained in exercise of
any belligerent right or under any enactment, with intent to commit breach of trust or
(c)dishonestly misappropriates anything therein; shall be liable to suffer long imprisonment.

NOTES

1. The offences in this section can be committed by any person subject to the Ordinance as
well as the person in command.

2. Strikes or otherwise ill-treats.-In order to prove a charge of striking must be shown that a
blow of some kind was struck and also that there was continuity of contact between the person
striking and the person struck. Striking may be done with a part of the accused's body such as the
fist, foot, or butting with the head etc, or with an implement such as a stick. Where, however, a
person is otherwise molested the charge should allege ill treating and not striking. The ill-
treatment must be physical; e.g. shutting a man up in a cupboard, or compelling a person to stand
in the sun for an hour.

3. To break bulk means to unload or to unpack.

4. With intenent to commit criminal bream of trust or dishonestly misappropriate.-See

sections 403 to 409 P.C.

SPECIMEN CHARGES

The accused (Rank, Name, P. No.) of B.N.S…………………..rightright, an officer

of the Bangladesh Navy, is charged with:

No.1

Unlawfully taking a thing from the possession of a person who was on

board a ship taken as prize,

in that he, at.leftleft, on……………….. unlawfully took from Mr……. ,

a person on board a shiprightright…………….which had been taken as prize, a gold

watch belonging to the said Mr....................................

No.2
Breaking bulk on board a ship taken as prize, with intent to dishonestly
misappropriate anything therein,

in that he, atleftleft, on………………………….rightright, with intent to

dishonestly misappropriate 10 bags of sugar, broke bulk on board. . . . . . . . . . . . . . . . . . (ship),

taken as prize.

(viii) Other Offences in respect of Ships and Aircraft

55. Inaccurate certification.-Every person subject to is Ordinance who makes or signs, without
having ensured its .accuracy a certificate relating to any matter affecting the seagoing or fighting
efficiency of any of the naval ships or naval vessels, or any certificate relating to any of the
Government's aircrafts or aircraft material, shall be liable to suffer short imprisonment.

NOTE

This offence may be committed wilfully or negligently (see Note 1 to section 34); but there
must have been a duty cast on the accused to ensure the accuracy of the certificate.

SPECIMEN CHARGES
The accused (Rank, Name, P. No.) of B.N.S…………….. , an officer or

the Bangladesh navy, is charged with:

No.1

Signing a certificate relating to a matter affecting the fighting efficiency

Of a naval ship without having ensured its accuracy,

in that he, atleftleft, onrightright……………………, when acting as gunnery

officer of the said ship signed, without having ensured its accuracy, a certificate relating to a
matter affecting the fighting efficiency of the said ship namely. . . . . .. . .. . . . . . .. . . .. .

No. 1
Making a certificate relating to an aircraft belonging to the Government, without having
ensured its accuracy,

in that he, at. . . ………….; on………………rightright, without having ensured its accuracy,
made a certificate, namely a form (Form 700) relating to a Government's aircraft
(type).........................Norightrightto the effect that the amount of fuel put in Number 1 tank of the
said aircraft was. . . . . . . . . . . gallons.

56. Improper carriage of goods.-Every person subject to this Ordinance who, being in
command of any of the naval ships, naval vessels or aircraft without lawful authority-

receives or permits to be received on board the ship, vessel or

aircraft any goods or merchandise intended for disposal or
(a) delivery by way of trade or business (whether on his own
account or on account of any other person), not being
merchandise received in the course of salvage; or

(b) agrees to convey any goods demands or receives any payment in respect of such carriage
or merchandise on board the shall be liable be dismissed from the service.
ship, vessel or aircraft in
consideration of the payment of
freight, or.

NOTE
The effect of this section is to prevent naval ships, vessels and aircrafts

being used for trafficking and it applies only to the person in command.

SPECIMEN CHARGE

The accused (rank, Name, P. No.) of B.N.S.. . . . ….. . . . . . . . ., an officer of the Bangladesh
Navy, is charged with :

Being in command of a naval ship, without lawful authority agreeing to carry in the said ship
goods in consideration of the payment of freight, in that he, at .. . . .., on…………….... .. .., being
in command of B.N.S. ... ..

. . . . . .agreed, without lawful authority, to carry in the said ship certain goods, namely
………………. consideration of the payment of freight.

(ix) Malingering and Intoxication

57. Malingering.- Every person subject to this Ordinance who:

(a) falsely pretends to be suffering from sickness or disability.

(b) injures himself with intent thereby to render himself unfit for service, or causes
himself to be injured by any person with that intent, or

(c) with intent to render or keep himself unfit for service, does or fails to do anything
(whether at the time of the act or omission he is in hospital or not) whereby he produces, or
prolongs or aggravates, any sickness or disability shall be liable to suffer short
imprisonment.

Explanation.-In this section the expression "unfit" includes temporarily unfit.

NOTES
 1. In a charge of malingering the particulars should specify the precise way in which the
accused is alleged to have malingered and what sickness or disability he has pretented or has
produced, prolonged or aggravated.

2. Clause (b) (i).-any person- the person who inflicts the injury need not be subject to naval law
and may be a civilian.

(ii) that intent-i.e., with entent thereby to render himself unfit for

service.

(iii) unfit-see Explanation to the section.

3. If there is doubt whether the intent required by the section can be proved, consideration should
be given to preferring an alternative charge under section 75.

4. If A. with intent to render himself unfit for service, instigates' (another person subject to naval
law) to injure him, and B complies, B may be charged with abetment under section 77 such a
case, A and B, although not charged jointly, may, nevertheless, be tried together-see rule 130(2).

5. Clause (e).-To produce any sickness or disability is wilfully to cause .genuine disease to
develop, e.g, by the infection of microbes or poisonous drugs. The involuntary production,
prolongation or aggravation of delirium tremens by intemperate habits, or of venereal disease by
immoral conduct does not render a person liable under this section. Nor would a person iucur
liability under it who refuses to undergo a surgical operation as a person cannot be lawfully
ordered to undergo an operation. Failure to attend for treatment or to report that one was suffering
from venereal disease might, however, be an offence under section 42.

6. In a case under clause (b) or clause (C) evidence must be given of the intent, but it would be
sufficient to raise a presumption of intent if the act were shown to have been done wilfully and
not accidentally.

7. Penal deduction are also to be imposed for an offence under this section. See Section
82(c) and Rule 281(1).
SPECIMEN CHARGES

The accused (0. No., Name, Rank) of B.N.S ……………; a sailor of the Bangladesh Navy, is
charged with :

No.1

Malingering,

in that he, atleftleft.leftleft, onrightright…………………rightright, falsely pretended to Surgeon

Commander. . . . .. . . . . . . . . . . . . . . of the said ship that he was suffering from a sprained ankle.

No.2

Malingering,

in that he, atleftleft. . . . . . .., on. . . . . . . .. . . ., by discharging a rifle wilfully blew off two fingers
of his right hand with intent thereby to render himself

unfit for service.

No.3

Malingering,

in that he, atleftleft, on……………………..rightright, with intent to render himself unfit for
service, caused Leading Seamanrightright.of the said ship to injure him, the accused, in the left
leg with a bayonet.
No.4

Malingering,

in that he, atleftleft, on…………rightright, when under medical treatment for a varicose ulcer of
the leg, with intent to keep himself unfit for service, tampered with the said ulcer, whereby he
prolonged his sickness.

No.5

Malingering,

in that he, at……………………., on……………rightright, "when under medical treatment for a

stiff knee joint, with intent to keep himself unfit for service, failed to attend for treatment which
had been ordered by Surgeon Commander. . . . . . . . . . . . ... . . . ., whereby he prolonged his
disability.

58. Definition of intoxication.-A person is in a state of intoxication within the meaning of

this Ordinance if owing to the influence of alcohol or any drug, whether alone or in combination
with any other circumstances, he is unfit to be entrusted with his duty or with any duty which he
might be called upon to perform, or behaves in a disorderly manner or in a manner likely to bring
discredit on the service.

59. Offences of intoxication.-Every person subject to this Ordinance, who is found in a state of
intoxication-
(a) if the offence is committed while on action service or under orders of active service or on
duty, shall be liable to suffer short imprisonment; and

(b) if the offence is committed under any other circumstances,

(i) if he is an officer, shall be liable to be dismissed from the service; and

(ii) if he is a sailor, shall be liable to suffer detention

NOTES
 1. The offence of intoxication is one which cannot be tried jointly.

2. A charge alleging that an accused was intoxicated, say at 13.30 hrs, and also at 20.30 hrs
would be bad for duplicity, as it would contain two separate offences.

3. It is no defence to a charge under this section that the accused was not due to perform any
definite duty at or shortly after the time of the alleged offence. In ordinary routine circumstances
a person unexpectedly called on to perform some duty for which he was not warned (e.g., an
officer or a sailor suddenly summoned from a club or a canteen or from some public sport) and
found to unfit for duty, should in practice be dealt with as for intoxication while not on duty
under clause (b) of the section.

4. A witness who states in evidence that the accused was drunk should state his reasons for
saying so. A sailor suspected of being in a state of intoxication should not be put through any drill
or test for the Purpose of ascertaining his condition. If, however, a doctor has examined such a
sailor for the purpose of ascertaining his condition, he may be called in the same way as any other
witness to describe what he saw when the sailor was brought before him and to state whether in
his opinion, based on what he saw, the sailor was in a state of intoxication though any person may
give his opinion whether or not the accused was drunk, such opinion will have little weight unless
the witness describes the symptoms on which he based his opinion; as it rests finally with the
court to decide the issue whether or not the accused was in fact drunk.

5. (a) Responsibility for deciding in cases of alleged drunkenness whether an officer or man is
in a fit state to perform his duties rests, as regards the aspect of immediate action, with his
superiors and ultimately with the Captain. The opinion of a medical officer, or a civilian doctor
on shore, should, however, be obtained at once. If this is not done, a fouilty person may escape
conviction for his offence by later bringing forward a plea of .sickness, or an innocent person who
really is sick may be prejudiced in his defence.

(b) When the Medical Officer's opinion is sought he must determine whether the condition of
the accused can be accounted for wholly or in part by disease or injury. If the condition and
behavior of the accused is abnormal, he should endeavour to formulate an opinion whether such
abnormality is wholly or partly due to consumption of alcohol or drugs, or wholly or partly due to
and disease or injury.
 (c) A medical Officer should conduct his examination in a private place, for example,
whenever possible, he should examine an officer in the officer's cabin and a sailor in the sick bay.
Such an examination should never take place on the quarter deck.

6. Where there is some doubt as to whether or not an accused was intoxicated within the
meaning of the section, but he was incapable of performing his .duties by reason of previous
indulgence in alcohol or other drugs an alternative charge should be laid under section 75 alleging
his incapability of performing his duties by reason of previous indulgence in alcohol or other
drug.

7. As in the offence of intoxication the attendant circumstances affect the amount of

punishment, evidence must in all cases be given as to whether the accused was or was not on
active service, or under orders of active service, or was or was not on duty at the" material time.
Section 112, however, empowers a court when a person is charged with having committed the
offence in circumstances involving a higher punishment to convict him by special finding in
appropriate cases of having committed it in circumstances involving a less degree of punishment.

8. Nothing can justify a person subject to this Ordinance using criminal force to his superior
and great care must, therefore, be taken to avoid bringing intoxicated persons in contact with their
superiors. Mere abusive and violent language used by an indicated man as the result of being
taken into custody should not be used as a ground for framing a charge under section 41, of using
threatening or insulting language to his. superior officer. If trial by court martial is considered
necessary, the charge should be framed for intoxication, the language being treated" in the nature
of riotous conduct only and to that extent aggravating the offence. Where, however, a person
under the influence of drink strikes a superior officer or is guilty of any other offence, it is the
duty of the convening officer to consider carefully, according to the circumstances, whether it is
necessary to charge the more serious offence. See Rule 42(3). 9. Drunkenness often has to be
considered by court-martial not as an offence itself, but in relation to greater offences which it
accompanies. It is a principle of the law that drunkenness is no excuse for crime. But where
intention is of the essence of the offence, drunkenness may justify a court-martial in awarding a
less punishment than the offence would otherwise have deserved, or reduce the offence to one of
a less serious character. Thus, if an ordinarily steady, respectful man misbehaves himself when
drunk by the use of insubordinate language, it may be clear that he did not really intend to be
insubordinate; and though the offence cannot be passed over, yet a more lenient punishment will
meet the justice of the case than if the same man had used the same Language deliberately when
sober. So, too, if it should appear that a man absenting himself in circumstances which might
ordinarily show an intention of not returning, was drunk, the court would be justified in treating
the absence as a mere drunken frolic, and finding the man, though charged with desertion, guilty
of absence without leave. A sailor so drunk as to be incapable of attending a parade should not be
charged with absence without leave but rather with being in a state of intoxication under this
section.
 10. As to general exceptions in relation to offences committed by a person while in a state of
intoxication, see sections 85 and 86 and the Penal Code. These exceptions it will be noticed only
apply in the case of an accused person when the thing which intoxicated him was administered to
him "without his knowledge or against his will".

SPECIMEN CHARGE

The accused (Rank, Name, P. No.) of B.N.S……………...., an officer the Bangladesh Navy; in
charged with :

While on duty being in a state of intoxication

in than he at ………….,on……….. at/about…………hours) while on duty as Officer of

the Day on board B.N.S.................. was in a state of intoxication

(x) Offences in respect of Naval Custody

60. Irregularity in Connection with custody.-Every person subject to this Ordinance who,.-

(a) unnecessarily detains a person in custody without bringing him to trial, or

fails to bring his case before the proper authority for investigation; or

(b) having committed a person to naval custody fails without reasonable

cause to deliver at the time of such committal, or as soon as practicable, and in
any case within forty eight hours thereafter; to the officer or other person into
whose custody the person arrested is committed, an account in
writing, signed by himself of the offence with which the person so
committed is charged, shall be liable to suffer short imprisonment.
NOTES

1. Naval custody.-See section 4 (xvii).

2. Clause (a)-In support of a charge laid under this clause for either of the offences therein
created the prosecutor will have to prove the facts which either show, or enable the court to infer,
that the accused could have brought the person in custody to trial or brought his case before the
proper authority for investigation. If these are proved the court may Infer that it was unnecessary
to keep the person in question in custody in the absence of an explanation by the accused this
clause is the natural corollary to section 90(1).
 3. Clause (b).-This must be read in conjunction with sections 89 to 92 and Rules 42 to 45. The
account in writing mentioned in this clause is not required to be in any particular form. All that
the clause requires is that it shall be in writing and signed by the person making it.

4. If it is practicable to deliver the account in writing" at the time of committal the offence is
technically complete if it is not delivered then, but it would be difficult to prove it could have
been delivered at the time of committal, and unless there is some special reason for taking.-
immediate action in the matter or the interests of discipline require that the accused should be
charged with, not delivering 1 the account. at the time of committal, it is safer to allow the full 48
hours to elapse before taking any action against the accused.

5. The “account in writing" referred to in clause (b) must be delivered to the person into whose
custody the person arrested is committed.

SPECIMEN CHARGE

The accused (Rank, Name, P. No.) of B.N.S……………." an officer of the

Bangladesh Navy, is charged with:

After having committed a person to naval custody, failing without reasonable cause to deliver
within 48 hours after such committal, an account in writing signed by himself of the offence with
which the person so committed was charged,

in that he, atleftleft, onrightright……………., lifter having committed (0. No.,

Name, Rank) to naval custody failed without reasonable cause to deliver within 48 hours after
such committal an account in writing signed by himself of the offence with which the said. . . . . .
. . . . . . . . was charged.

61. Escape from custody.-Every person subject to this Ordinance, who, being in lawful
custody escapes or attempts to escape shall be liable to suffer short imprisonment.
NOTES

1. Lawful custody.-These words' mean any lawful custody, so that a person subject to naval
law may be convicted under this section when escaping or attempting to escape from a person, be
he policeman or not, who has arrested him as a suspected deserter or absentee (see Rule 63).
Where a person is held by the civil police or by the provost marshal or any person legally
exercising authority under him or on his behalf (see Explanation to section 94), he may be
charged with an offence under this section. An officer of the civil police has power under section
S4 of the Code of Criminal Procedure to arrest "without an order from a Magistrate and without a
warrant" any person reasonably suspected of being a deserter from the armed forces of
Bangladesh.

2. Custody may be open arrest or close arrest. Accordingly a person who escapes or attempts
to escape while in open arrest could be charged with an offence under this section.

3. What constitutes an escape is a question of fact, but before a prisoner can be said to have
escaped it must be shown that he was out of the control and reach of his escort. If a person breaks
away from an escort but does not get away he may be charged with attempting to escape.

4. A person who escapes and who then remains absent without leave, or deserts, may be
charged under this section in addition to being charged with absence without leave [section
47(a)], or desertion [section 46(1)], as the case may be. The absence or desertion and the escaping
from custody should be made the subject of separate charges.

SPECIMEN CHARGE
The accused (0. No., Name, Name. Rank) of B.N.Srightright……….., a Sailor of the Bangladesh
Navy)"; is charged with:

Being in lawful custody attempting to escape,

in that he, atrightright, on.. . .. . .. ………………….., when proceeding under escort

to. . . . . . . . . . .. broke away from his escort and attempted to escape.

62. Permitting escape of person in custody.-Every person subject to this Ordinance who,-
 then in command of a guard, piquet, patrol or post, releases without proper authority.
whether, wilfully or without reasonable excuse, any person committed to his charge, or
(a) refuses to receive any prisoner or person so committed,
or
wilfully or without reasonable excuse allows to escape any person who is committed to his
(b) charge, or whom it is his duty to keep or guard,
shall be liable, if he has acted wilfully, to suffer long imprisonment, and if he has not acted
wilfully, to suffer short imprisonment.

NOTES

1. The offence under clause (a) is committed whether the release without proper authority is
wilful or not; whereas under clause (b) to constitute an offence the accused must have acted
wilfully or without reasonable excuse. In a charge laid under clause (b) however, where a doubt
exists as to the accused having acted wilfully, he should be charged with having acted without
reasonable excuse' Further, the person improperly released or allowed to escape need not be a
person subject to naval law. If the charge is one of wilfully committing an offence, the court may,
if it is not satisfied that the act was wilful, make a special finding that the accused acted without
reasonable excuse; see section 112.

2. In a charge laid under clause (a); the court may use their service knowledge with respect to
whether the authority alleged was or was not sufficient.

3. An act or omission is wilful if it is done or made by a person with the intention of allowing
the escape of a person committed to his charge or

whom it is his duty to guard or keep.

4. The person committed to the accused's charge or whom it is his duty to keep or guard need
not be subject to naval law.

5. Section 91 (2) makes it the duty of every officer or sailor in charge of a guard and of a
provost marshal to receive and keep any person who is duly committed to his custody. A
violation of that duty, whether wilful or without reasonable excuse punishable under clause (a) of
this section.

6. When an escort consists of a petty officer and a sailor, and the petty officer wilfully allows
the prisoner whom they are escorting to escape, the sailor will also be guilty of an offence under
clause (b) of this section if he was a party to what the petty officer did.
 7. As to what constitutes an escape, see Note 3 to section 61.

8. It will be noticed that; for tact purpose of clause (a), the person released must have been
committed to the charge of the accused, while for the purpose of clause (b) the person allowed to
escape need only have been a person whom the accused was under a duty to keep or guard. The
offender under clause (a) must be in the command of the guard, piquet, patrol or post, and
previously have had the released person committed to his charge; while under clause (b) the
offender who allows a person to escape need not have any such command.

SPECIMEN CHARGES
The accused (0. No., Name, Rank) of B. N. S.. . . . . . . . . . . . . . . ., a Sailor of the Bangladesh
Navy, is charged with:

No. I

When in command of- guard room; releasing without proper authority

a person committed to his charge,

in that he atleftleft, on……………..rightright, when in command of the guard-room without

authority released (0. No., Name Rank) of B. N. S. . . . . . . . . . . . . .a, person committed to his
charge.

No.2
Without reasonable excuse allowing to escape a person, committed to his charge,

in that he, atleftleft.,onleftleft, when conducting. to his ship (0. No., Name, Rank) of B. N. S.. .. .
.. .. .. .. . .. . .. .. .,a person committed to his charge, allowed a crowd to assemble round the said
Person without taking reasonable means to prevent it, and the permitted the escape of the said
person.

(xi) Offenses relating to Property

63. Theft and dishonest misappropriation etc.-Every person subject to this Ordinance who
commits any of the following offences, that is to say-

(a) commits theft of any property belonging to the Government, or to any service mess, band
or institution or to any person subject to service law, or serving with or attached to the
navy;
 (b) dishonestly misappropriates or converts to his own use any such property;
(c) commits original breach of trust in respect of any such property;
(d) dishonestly receives or retains any such property in respect of which any of the offences
under clauses (a), (b) and (c) has been committed, knowing or having reason to believe the
commission of such offence;
(e) wilfully destroys or injures any property of the Government entrusted to him; or

(f) does any other thing with intent to defraud, or to cause

wrongful gain to one person or wrongful loss to another

person,

shall be liable to suffer long imprisonment,

NOTES

1. Briefly the distinction between the three offences "mentioned in this section, viz., theft,
dishonest misappropriation and criminal breach of trust is as follows:

(a) In theft the original faking is dishonest and without the consent of the owner.
(b) In dishonest misappropriation the taking is honest but without the consent of the owner.

(c) In criminal breach of trust the original taking is honest and with the consent of the
owner.

2. Government.-See section 4 (xii).

3. Service mess, band .or institution.-See section 4 (xxxiii).

4. Service law.-See section 4 (xxxiv).

5. By virtue of section 113 (1) (b) a person charged with any of the offences mentioned in this
section can in an appropriate case be convicted special finding of any other offence mentioned in
the section, as they are all offences of the Same class and, none of them involves greater,
punishment than the others.

6. As regards the custody and disposal of property during and after the trial, see sections 128 and
129.
 7. On a charge under clauses (a), (b) (c), or (d), it is essential to prove that the property
belonged:
(i) to the Government, or (ii) to any service mess, band or institution, or (iii) to any
person subject to military, naval or air force law (iv) to any person serving with or
attached to the navy.

When it is doubtful whether this can be proved the possibility of preferring a charge under section
78 should be considered. If it is clear that the property belonged to the Government etc., as the
case may be, the charge should be laid under this section and not under section 78.

8. Theft-To constitute theft there must be:-:

(a) a dishonest intention to take the property out of the possession of its real or temporary
owner (i.e., he who has "possession" of it) without his consent, and
(b) a moving of the property in order to accomplish such taking. (PC

section 378).

9. Every Instance of theft- i.e., each "taking" must be charged separately (Rule 126 (1), but, in
deciding what constitutes a "taking" the intention of the accused .and the nature of the property
stolen must be considered. Thus a sailor who goes to a stack of jerricans with a jeep and proceeds
to load his jeep with twelve jerricans of petrol which he carries two at a time from the stack can
be charged on one charge with committing theft of all twelve jerricans of petrol notwithstanding
that he took them two at a time.

10. Where an accused is charged with theft under this section, the ownership of the property
alleged to have been stolen should be clearly set out in the charge and-proved; in evidence, and its
identity established (where possible) by production and identification in court; if not produced, its
non production should be accounted for.

11. It should be borne in mind when considering the question of theft of Government or
service stores by finding that though they may be useless for the purpose for which they were
originally intended, they can be converted into salvage and that it is therefore wrong to draw the
inference that they have been abandoned as it may be possible in the case of civilian property.
 12. Dishonestly misappropriates.-(a) The verb "to appropriate" in this connection means
setting apart for .or assigning to, a particular person or use; and to "misappropriate" means to set
apart for or assign to the wrong person or a wrong use, and this act must be done dishonestly.
(b) The essential matters which have to be proved before an accused can be convicted of
dishonest misappropriation under cause (b) of this section are therefore:

(i) that the property belonged to the Government etc. as stated in

clause (a)-(see note 7 above);

(ii) that it was in the accuscd's possession or control at the time of the offence;
(iii) that the accused misappropriated it or converted it to his own use; and
(iv) that he did so dishonestly.

13. (a) Every- instance of misappropriation should be charged separately if possible but in
cases where it is alleged that various sums have been misappropriated over a period but it is not
possible to isolate particular instances of misappropriation one charge alleging the total
deficiency may be preferred.

(b) A mere error or irregularity in accounts or a mistake in the application of money or goods
does not by itself constitute an offence under this clause. There must be an intent to defraud on
the part of the accused either for the benefit of himself or some other person.

14. The - fact of dishonest misappropriation may be proved in various ways but if the
prosecution satisfy the court that the accused actually received the property into his possession
and subsequently failed to produce it or to account for it when called upon to do so the court may
draw the inference that the accused misappropriated it without it being shown what he actually
did with it provided they are satisfied from the circumstances in which the accused held the
property or from other evidence that there is no other reasonable explanation to account for its
non-production.
15. It is immaterial whether the accused intended permanently to deprive the owner of the
property or not. Once a person has dishonestly misappropriated property the offence is complete
and he cannot purge-his offence by replacing it, though the fact that he has done so may properly
be pleaded in mitigation.

16. The value of the property which forms the subject of an offence under this clause should
be stated in the particulars of the charge and proved in evidence, so that the court if it convicts
the accused may add penal deductions to its sentence.

17. Clause (e)--Criminal bread of trust.-see Sections 405-406 of PC.

18. Clause (d) Receiving or retaining. See Section 411 Pc. The original theft dishonest
misappropriation or criminal breach of trust in respect of the property in dispute must be proved,
though criminal proceedings need not have been taken in that respect or the thief etc..
apprehended. It must next be proved that the property was in the possession or control of the
accused. It must also be proved that he either knew or had reason to believe that the property was
such in respect of which an offence under clauses (a), (b) or (c) of this section has been
committed, and -finally that he received or retained it dishonestly, i.e., that he intended that it
should not be returned to the proper owner.

19. A charge under this clause can only be laid in respect of such property -i.e. property
belonging to the Government etc. as mentioned in clause (a). If the property does not belong to
the Government etc. a charge under section 78 should be considered; (see note 7 above).

20. The prosecution must affirmatively prove their case. In other words guilty knowledge of
the accused must be established. It is not sufficient to prove that he merely suspected the property
to have a tainted origin, but it will be sufficient if it is shown that under the circumstances a
reasonable man must have felt convinced that the property was stolen property ete. For instance
the fact that he bought it much below its value, or that he falsely denied his possession of it might
be evidence of guilty knowledge. If however the accused can suggest a possible explanation
which may reasonably be true the case is not proved satisfactorily.

21. Clause (e)-Wilfully means deliberately; i.e., that the mind and will of the accused were
directed to what he was doing. The prosecutor must adduce evidence which will either prove, or
enable the court to infer, that the destruction or injury was not accidental. If the injury appears to
be the result of neglect it will be for the court to determine whether the neglect was wilful and the
accused intended to destroy or injure the property. If injury or destruction was caused through
carelessness, no offence under this clause will have been committed.

22. A charge under this clause can only be brought in respect of any property of the
Government entrusted to the accused';, which he wilfully destroys or injures. Where such
property is lost by the accused or is destroyed or damaged by negligence, the charge should be
laid under section 65.

23. As to penal deductions and evidence of value see section 82(d) and note there to.

24. Clause (f)-''lntent to defraud".-Whenever the words "fraud" or "intent to defraud" or

"fraudulently" occur in the definition of a, crime two

elements at least are essential to the commission of the crime namely, first,' deceit or an intention
to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury by
means of that deceit or secrecy. This intent is very seldom the only or the principal intention
entertained by the fraudulent person, whose principal object in nearly every case is his own
advantage. The injurious deception is usually-intended only as a means to an end though this does
not prevent it from being intentional. A practically conclusive test as to the fraudulent character
of a deception for criminal purposes is this: Did the author of the deceit derive any advantage
from it which he could not have had if the truth had been known? If so it is hardly possible that
advantage should not have had an equivalent in loss, or risk of loss, to some one else; and if so,
there was fraud. In practice people hardly ever intentionally deceive each other in matters of
business for a purpose which is not fraudulent" : (per. Sir James Stephen).

25. The expression intent to defraud implies conduct coupled with an intention to deceive and
thereby to injure; in other words, ' defraud" involves two conceptions namely, deceit and injury to
the person deceived, that is an infringement of some legal right possessed by him, but not
necessarily deprivation of property. The term "defraud" denotes some form of dishonesty,. An
"intention to defraud" has to be inferred from the conduct of the accused, and must necessarily
involve something in the nature of cheating. Thus, a mere irregularity in accounts, due to
incompetence or ignorance of book keeping, would not be efficient under this clause, as no
fraudulent conduct is involved. Such acts as:-with intent to defraud presenting for signature
acquittance rolls, containing entries known to be false; passing a worthless cheque; and charging
money for railway warrants, tickets or vouchers, to which an. officer or sailor is entitled free of
charge, would all amount to offences punishable under this clause, as "doing a thing with intent to
defraud".

26. Wrongful gain and wrongful loss.-See P. C. section 23. The word 'wrongful' means
prejudicially affecting a party in some legal right. For either wrongful gain or wrongful loss, the
property must be lost to the owner or the owner must be wrongfully kept out of it. When the
owner is kept out of possession of his property with the object of depriving him of the benefit
arising from, the possession, even temporarily, the case will come within the definition. But
where the owner is kept out of possession temporarily not with any such intention, but only with
the 'object of causing him trouble in the sense of mere mental anxiety, and with the ultimate
intention of restoring the thing to him without exacting or expecting any recompense, such
detention will not amount to causing "wrongful loss" to the owner within the meaning of this
clause.

SPECIMEN CHARGES
The accused (0. No., Name, Rank) of B.N.S………………. , a sailor of
the Bangladesh Navy, is charged with :

No.1

Theft of property-belonging to a person subject to naval law,

in that he, at.. .. .. . .. .. . .., on. .. . . . .. . . . . . ., committed theft of a watch

belonging to (Rankleftleft, Name………………rightright, P. No..........................

of B.N.S. . . . . . . . . . . . . . . . . . . . . . .), a person subject to naval law.

No.2

[ Under section 63(b) ]

Dishonestly misappropriating property belonging to the Government,

in that be, atleftleft; onrightright……………….dishonestly misappropriated

twenty rounds of ball ammunition, the property of the Government, value..

, when carrying out the duties of the Gunner's Yeoman.

[ Alternative charge under section 65(a) ]

Losing Government property of which he had the charge,

in that he, at , on , through neglect lost twenty rounds of ball ammunition; the property of
the Government, value. . . .. . . . . . . . ., when carrying out 'the duties of Gunner's Yeoman.

No.3

Criminal breach of trust in respect of property belonging to a person

subject to naval law,

in that, he, at………….rightright, on.. .. .. . …………. .. .. . .., having been entrusted

by (O..Norightright, Namerightright…………... ..., Rank……………………….

of B,N.S.rightright.), a person subject to naval law, the sum of Taka. 50/-, for the purpose of
dispatching a money order, did not dispatch the money order, but dishonestly converted the
money to his own use and thereby committed criminal breach of trust in respect of the said sum
of Taka 50/-
 No.4

Dishonestly receiving stolen property,

in that he, atleftleft…………., on………….rightright, dishonestly received a

watch the property of (Rank.. ……. . . . . . , . . . . . . . ., Name……………

P. Nocentercenter, of B.N.Srightright) a person subject to naval law, when he had reason to

believe, that it had been stolen.

No.5

Doing a thing with intent to defraud,

in that he, atcentercenter, onrightright, with intent to defraud, obtained from. . . . . . . . . . . . . . . . .

., four gallons of petrol, value. .. . . . . . . . . . .. . . . .., by falsely pretending that he, the accused,
was authorized to obtain the said

petrol for staff car No. . . . . . . . . . . . . . . . . . . .

No.6

Doing a thing with intent to defraud

in that he, atleftleft, on………….rightright, with intent to defraud, forged the name of
Lieutenantleftleft.on a Postal Order for Taka Thirty and thereby obtained the said sum.

64. Making away with equipment ete.-,. Every person subject' to this Ordinance who makes
away with (whether by pawning, selling, destroying or in any other way) or loses or by
negligence damages or allows to be damaged-

(a) any clothing, arms, ammunition or other equipment

issued to him for his use for naval purposes; or

(b) any military, naval or air force decoration granted to

him;
shall be liable to suffer short imprisonment.

Explanation.-It shall be a defence for a person charged under this section with losing any
property that he too k reasonable steps for its' care and preservation.

NOTES

1. Loss.-This section and section 65 must be read issued to persons with the "Explanation".
Once, the prosecution has proved that the accused has lost the property, the onus shifts to the
accused to show that he took reasonable steps for the care and preservation of that property. The
burden of proof upon the accused is not as great as on the prosecution and, if the court think that
the accused may well have taken reasonable step for the care and preservation of the property, he
should be acquitted.

2. Clause (ii) of this section refers only to articles issued to persons for their own use for naval
purposes, e.g., duffle-coat, binoculars, arms and ammunition. Where property of the Governments
issued to a person for safe custody or for issue to others, and he wilfully destroys or injures it be
should be dealt with under clause (e) of section 63. Where such property is lost by the accused or
is destroyed or damaged by negligence the charge should be laid under section 65. See Notes 21
and 22 to section 63.

3. By negligence See Note 1 to section 34.

4. Decorations.-This term includes medal, medal ribbon, clasp and good conduct badge. It
does not cover civilian decorations.

SPECIMEN CHARGES

The accused (0. No. Name, Rank) of B.N.S. . . . . . . . . . . . . . a Sailor

of the Bangladesh Navy, is charged with :-

No. 1
 Losing clothing issued to him for his use for naval purposes,

in that he at,. . .. . . .. . . . . . . . . . .. onrightright. . . . . . . .. . . . . ., was deficient of the

following public clothing issued to him for his use for naval purposes. viz.

one blanket, value and one great-coat. value……..

No. 2
By negligence damaging equipment issued to him for his use for naval purposes in that he, at
on by negligence damaged a pair of binoculars Pattern No………………………….. ,
value…………………..… , issued
to him ,or his use for naval purposes, by dropping them on the deck.
65. Loss and waste of Government and. service property.-Every person subject to this
Ordinance who:
(a) loses any Government or service property of which he bas the charge or which has been
entrusted to his care, or which forms part of property of which he has the charge or which
has been entrusted to his care;
(b) By negligence destroys or damages any Government or service property or allows any
such property to be destroyed or damaged; or
(c) Wastefully expends any such property, shall be liable to suffer short imprisonment.

Explanation.-It shall be defence for a person charged under this section with losing any
property that he took reasonable steps for its care and preservation.

Notes

1. Loses.- See Notes 1 and 2 to section 64.

2. In order to prove a loss, the prosecution must establish in every

case:-

(a) That the property came into the accused's charge or care or was part of property
which had done so, (if the property was issued to him for his personal use, he should
be charged under section 64);

(b) that the property was missing.

3. The following example show the distinction which should be drawn, between "has the
charge of" and "has been entrusted to his care" ; but each case must be considered on its merits
:-

The Supply Officer has the '"Charge of" all public money, victualling and naval stores which
(a) has not been issued or otherwise taken off his charge, unless some other officer. e.g., a
 Supply Store Officer has been appointed to have charge of some particular Class' of stores.

Departmental officers holding permanent loan lists would have the "charge of" stores
(b) issued to them on permanent loan.

(c) The Gunner would have the "charge of" the Gunner's stores.

(d) The clothing in the clothing store would be "entrusted to the care
of" the stores P. O. in charge of the clothing stores, or any other
sailor left temporarily in charge of the store. If the Stores P. O.
lost part of the proceeds of the sale of clothing, he could be
charged because the proceeds "formed part of property" which bad
been entrusted to his care.

(e) The coxswain of a motor boat would be "entrusted with the care"

of the equipment or tools in the boat which he took over, and

could be charged accordingly, if he lost them or part of them.

4. By negligence destroy or damage.-"By negligence" means by carelessness, indifference or

general slackness, as distinct from the wilful acts described in section 63 (e). The burden of proof
is on the prosecution to show that the damage or destruction of the property was caused by
negligence on the accused's part or that by negligence the accused allowed the property to be
destroyed or damaged. The test of negligence is that given in Note 1 to section 34.

5. Wastefully expends. A charge of wastefully expending under clause (c) of this section may
be useful when a person throws something overboard.

SPECIMEN CHARGES

The accused (0. No., Name, Rank) of B.N.S.. . . . . . . . . . . .. a Sailor of the Bangladesh Navy, is
charged with:-
 No. 1

Losing service property which had been entrusted to his care,

in that he, at………….., on. . .. .. . .. .. . .. , lost certain service, property, namely. . . . ……….
belonging to the Ward Room Mess of the said ship, which was entrusted to his cafe as Ward
Room Wine Steward.

No. 2

By negligence damaging Government property,

in that he, at... . . . .. .. . ., on.. .. .. .. …, so negligently drove Motor Vehicle No. B.N. 123,
property of the Government, as to cause it damage to the extent of Taka 50.

No. 3

Wastefully expending Government property,

in that he, at... . . . .. .. . ., on.. .. .. .. …, wastefully expended one gallon of mineral vaporising oil
by pouring the said oil into the bilges.

(xii) Miscellaneous Offences

66. Unauthorised disclosure of information.- Every person subject to this Ordinance who
without lawful authority wilfully discloses or purports to disclose whether orally, in writing, by
signal or by any other means whatsoever, any information which has been entrusted in confidence
to him or to which he has access owing to his position shall be liable to suffer short
imprisonment.

NOTES
1. The offence specified in this section must be distinguished from the offence punishable
under clause (a) of section 32 and that punishable under section 5 of the Official Secrets Act.
 2. The disclosure of information must be "wilful" and "without lawful authority", and it must
be to an unauthorised person, It would not be an offence if a person discloses or purports to
disclose any information to any one whom he is authorized to disclose it, or to a court of justice
or to a person to whom it is, in the interests of the State, his duty to disclose it.

SPECIMEN CHARGE

The accused (Rank, Name, P. No.) of B.N.S. . . . . . . . . . . . ., an officer of the Bangladesh

Navy, is charged with:-

Without lawful authority wilfully disclosing information

to which he had access owing to his position,
in that he, atleftleft, on.. .. . . .. .. . . . .. .. . . . . ., being in Possession of information by virtue of his
position as Intelligence Officer of B.N.S................ without lawful authority, wilfully disclosed the
same in a letter, dated. .. .. . . . . ..., written to his brother.. . .. . .. . . . .. .. .. .at (address) stating. . . .
...

67. Falsification of documents.-Every person subject to this Ordinance who,-

(a) makes or signs any muster, record or other official document

which is to his knowledge false in a material particular;

(b) alters any such document so that it is to his knowledge

false in a material particular; or

(c) connives at the commission by another person subject to

this Ordinance of an offence against this section (whether

or not he knows the nature of the document in

to which that offence' is committed);

shall be liable to suffer short imprisonment.

NOTES

1. To establish this charge it is not necessary to prove that the accused. acted with intent to
defraud or deceive or in any way dishonestly, but only that the document was false to his
knowledge.

2. A false record is one which is intended by the person responsible for ,it to produce, as a
whole, a wrong impression as to facts which should be recorded; so a false record may be made
by omitting some particulars from it.

3. Record means a permanent document of an official nature.

4. Altering an official travel warrant could be charged under this section.

5. A person who signs with another's name a document which is not otherwise false makes a
false document.

6. A person connives when he knows that a wrongful act is being done and, being under a duty
to interfere, does not interfere to prevent it.

7. When a person is charged with conniving, it must be proved that the offence was committed
by someone who was, subject o the Ordinance. If, for instance, an officer were to ask- a sailor in
charge of a petrol point to issue him with petrol for his private car and to "cover it up in his
accounts", he would be conniving at the commission of an offence under this section (if the sailor
did it), although he did not know what documents would have to be altered in order to "cover it
up". Furthermore the sailor would be charged for criminal breach of trust under section 63 (C)
and the officer under sections 63 (d) and 75. Set specimen charge No.3 below.

8. In a proper case a charge under this section can be preferred as an alternative to a charge of
forgery under section 78 read with sections 463/465 P.C,
 SPECIMEN CHARGES
.The accused (Rank, Name, P. No.) of B.N.Sleftleft…………,an officer of the Bangladesh Navy,
is charged with:

No.1

Signing an official document, which was to his knowledge false in a

material particular,

in that he, atrightright, on.. . . . . . . . . . . . . , signed an acquaintance roll, an official document,

which included an entry purporting to show that he had paid Taka 25/- to Petty
Officerrightright………………..,0. No... . ....………..…..., well knowing such entry to be
false.

No.2

Altering an official document so that to his knowledge it was false

in a material particular,

in that he, atleftleft, onleftleft, in the sailors acquitance roll for the month ofleftleft.,19leftleft, an
official document; altered an entry showing a payment of Taka. 30/- to Petty Officer……………
.0. No ...leftleft. .on the day of 19…………... by

changing the figure Taka 30/- into the figure Taka 50/-. Well knowing that the failure of Taka
30/- was the correct figure.

No.3

Conniving at making a false official document by a person subject to the Navy Ordinance,
.1961"

in. that he. at. .,leftleft..., .,onleftleft... .,asked O. Norightright......................... .Name and rank. .. .
. . . . . . . . . . who was then in charge of petrol point, to issue him four gallons petrol for his private
car and to cover it up in !WI accounts, which the said Petty Officer did by making an entry in his
accounts falsely showing the issue off our gallons of petrol for use in a service transport No. B.
N. 123.

68. Signing in blank and failure to report.- Every person subject to this Ordinance who,

(a) when signing any equipment clothing, supplies, or stores, or any property of the
document relating to pay, Government, fraudulently leaves in blank any material part for
arms, ammunition, which his signature is a voucher; or
(b) refuses or by culpable neglect omits to make or send a report or return which
it is his duty to make or send shall be liable to suffer short imprisonment

NOTES

1. Fraudulently.-A person is said to do a thing fraudulently if does thing with intent to defraud
but not otherwise; PC section 25.

2. In a charge involving an intent to defraud it is not necessary to show an intent to defraud the
public or a particular individual, so long as an intent to defraud is shown.

3. In a charge under clause (b) of this section the particular must show that it was the duty of
the accused to make the report or return but where the signature of the accused is proved the court
may use their service knowledge to infer his duty. If the report or return was one for which the
superior had no right to call, it is not an offence under this section to refuse to make or send it

4. The report must be in writing; the clause does not contemplate a verbal report. The neglect
under this clause must be culpable i.e. something more than mere forgetfulness or mistake. See
Notes to section 75.

SPECIMEN CHARGES
The accused (Rank, Name, P. No.) of B.N.S………………..rightright, an officer of

the Bangladesh Navy is charged with:

when signing a document relating to supplies fraudulently leaving", blank a material part for
which his signature was a voucher,
in that he, at..leftleft,on…………………..rightrightwhen signing a receipt for the fresh provisions
for B.N.Srightright with intent to defraud, left in blank the column under the heading chicken,
when he had in fact received 250 pounds of the same' from the Supply Depot.

69. False answers on enrolment.-Every person having become subject w this Ordinance by
enrolment who is discovered to have made at the time of his enrolment a wilfully false answer to
any question set forth in the prescribed form of enrolment shall be liable to suffer short
imprisonment.

NOTES

1. Having become subject. -It win be observed that the wording in this section differs from
the wording in other sections. Which create offences triable by court-martial. This is essential
since at the time the offence is this section differs from the wording in other sections. Which
create offences triable by court-martial. This is essential since at the time the offence is
committed the person is not actually subject to naval law, as he does not become so subject until
he has signed the enrolment paper.

2. If false answers are given to two or more questions in the enrolment

form each false answer should be made the subject of a separate charge

3. The original enrolment form must be produced at the trial by a person who can -identify the
accused as the person named therein; see section 119 (1).

4. The falsity of the answer must be proved in accordance with the normal roles of evidence.
Where the false answer is as to previous service in the forces, evidence as to such previous
service can be given by the production of previous enrolment paper. record of service etc.; see
section 120 (1).
 5. The answer must be wilful1y false, thus where a man might reasonably have been
mistaken as to the fact of his having ''served'', where for instance he was discharged as unfit
before he had done duty or worn a uniform, a conviction would not be upheld.

6. Presaibec1 form or earo1ment.-see Eighth Appendix.

SPECIMEN CHARGE

The accused (0. No.. Name, Rank) of B.N.S…………….., a sailor of the Bangladesh
Navy, is charged with:
[

At the time of enrolment making a wilfully false answer to a question set forth in the prescribed
form of enrolment,
in that he, at. ………….., on. ……… . . . . . ., when he appeared before Lieutenant..... . . . . . . . .,
an Enrolling Officer, for the purpose of being enrolled for service in the Navy, to the question put
to him “Have you ever served in any of the armed forces of Bangladesh?” answered ''NO'' where
as he had served; as he well knew, in the Bangladesh Air Force.

70. Unbecoming conduct by officers.-Every officer subject to this Ordinance who behaves in
a manner unbecoming his position and the character expected of him shall be liable to be
dismissed from the service.

NOTES

1. A charge under this section ought not to be preferred against an officer unless it is of so grave
a nature as to bring discredit to the Navy.

2. This section is frequently invoked in cases where an offender has given cheques which are
returned by his bank because there were no funds to meet them. Such a charge should only be
preferred where it is clear from the evidence from the bank that the offender acted in such a
reckless manner as is tantamount to fraud. In cases involving dishonored cheques, evidence must
always be given as to the state of the accused banking account.

3. Offences I of fraudulent conduct will generally be punishable by ordinary law under section
78. In a case, however, of a series of fraudulent acts by an officer in his capacity as an officer and
arising from the trust put in him because he is an officer, a charge under this section might be
justified. Again, where the accused had not gone far enough to complete an ordinary, criminal
offence, but was nonetheless guilty of conduct which is unbecoming his position and the
character expected of him as an officer of the Navy, it might, by reason of the higher standard of
conduct expected of an officer, amount to an offence under this section. e.g. see specimen charge
No.2 below.

SPECIMEN CHARGES

The accused (Rank, Name, No.) of B.N.S…………………….., an officer of the Bangladesh

Navy, is charged with:

Behaving in a manner unbecoming the position and the character

expected of an officer,

No. 1

in that he, at……………, on…………., in exchange for cash gave to… a

cheque for Taka 100/-datedleftleft. .made payable to the saidrightright…………....and

drawn by him, (the accused), onleftleft.Bank Ltdrightright……………….(Branch),

well knowing that he (the accused) had not sufficient funds in the hands of the said bank to meet
the said cheque and having no reasonable grounds for supposing that the said cheque would be
honoured when presented.

No.2

in that he, at………………….,on……………… ,when arrested by the Civil Police for

creating a disturbance on shore in ………..Hotel, lie assumed the name of Lieut.
Commander………., another officer of the said ship.
 71. Disgraceful conduct.-Every person subject to this Ordinance who is guilty of any
disgraceful conduct of a cruel, indecent or unnatural kind shall be liable to suffer short
imprisonment.

NOTES

1. The particulars of charges of disgraceful conduct under this section must specify the details, of
act or acts alleged to constitute the disgraceful conduct of the kind charged. It will be for the court
in each case to say whether the accused's acts amount to disgraceful conduct of the kind specified.
In the case of an officer accused, the same facts may constitute an offence either of disgraceful
conduct under this section, or an offence under the previous section of conduct unbecoming the
position and the character expected of an officer.

2. To allege in a charge under this section conduct of an indecent and unnatural kind would be
bad for duplicity, since they are two separate offences Rule 126 (1).

3. Conduct may be disgraceful within the meaning of this section although it does not
constitute an offence known to civil law. Thus:

when a person is charged under this section with indecently exposing himself, it is
not necessary for the prosecution to prove that he had the intention to insult anyone, (as is
(a) necessary for instance on a charge under section S09 of the P.C.)
(b) A conversation which does not amount to an attempt in law but only to
preparation to commit an offence (e.g. an unnatural offence punishable under
P.C. section 377) may be charged under this section, notwithstanding that it
cannot be charged under section. 78.

4. In some cases the conduct of the accused may equally well be described as indecent or
unnatural. In such cases the prosecution must elect with which type of conduct they will
charge him. Normally indecent and natural conduct between human beings should be charged as
disgraceful conduct of an indecent kind and indecent and unnatural conduct by a human being
with an animal as disgraceful conduct of an unnatural kind.

SPECIMEN CHARGES
The accused (0. No., Name, Rank) of B.N.S …………….., a sailor of the Bangladesh Navy,
is charged with:-

No.1

Disgraceful conduct of cruel kind,

in that he, at. . . . . . . . . . . . . ., on…………………………….cruelly throwing it against a wall. .

No.2

Disgraceful conduct- of cruel kind,

in that be, at. . . . . . . . . . . ., on………….. with indecent intent got into bed

with O. Noleftleft……….Nameleftleft………………….sailor of the same ship.

No.3

Disgraceful conduct of an unnatural kind,

in that he, atleftleft, onleftleft……….., attempted to have carnal knowledge of a pony mare,

72. False accusation.-Every person subject to this Ordinance Who,-

(a) makes a false accusation against any person subject to this Ordinance knowing or having
reason to believe such accusation to be false, or
(b) in making a complaint under section 23 makes any statement affecting the character of
any person subject to this Ordinance, knowing or having reason to believe such statement to
be false; or knowingly and wilfully suppresses any material facts,
shall be liable to suffer short imprisonment.
 NOTES

1. Clause (a).-A mere false statement, not involving an accusation. (e.g., a letter to a friend
containing insinuations against a superior officer) is not within the meaning of this clause.

2. Before an accused can be convicted under this clause it must be proved:

(a) that the accusation was made against the person named in the particulars of the charge;

(b) that it was false; and

(c) that the accused knew or had reason to believe it to be false.

3. An accusation need not be made to any particular person or in any

particular manner.

4. Clause (b).-To suppress knowingly and wilfully any material facts in connection with
complaints for the redress of grievances under section 23 is an offence under this, clause. It is not
necessary that the false statement affecting the character of an officer or sailor should be directly
related to the subject of the complaint. If the false statement is calculated to create prejudice
against the officer or sailor with reference to whom the complaint is addressed, then it is a false
statement under this clause.

SPECIMEN CHARGES

The accused (0. No., Name, Rank) of B.N.S. . . . . . . . . . . ., a sailor of the Bangladesh Navy is
charged with :-

No.1
 Making a false accusation against a person subject to the Navy Ordinance, 1961, knowing such
accusation to be false,

in that he, atleftleft, onleftleft……….in a letter datedleftleft………..…..written and

sent toleftleftstated that No………….rightrightName ...............................

a person subject to the Navy Ordinance, 1961, had stolen a camera, which

accusation he (the accused), knew to be false.

No.2
In making a complaint under section 23 of the Navy. Ordinance, 1961, making a statement
affecting the character of a person subject to the said Ordinance, knowing such statement to be
false.
in that he, at……………on……………………..during the course of a complaint under section 23
of the Navy Ordinance, 1961 for the redress of his grievances made to his commanding officer,
Captain, used language to the following effect. "Chief Petty Officer is not fair in taking men for
duty and no one in the ship can get on if he does not grease his plam" well knowing the said
statement to be false.

73. Offences in relation to court martial.-.(I) Every person subject to this Ordinance who,-

(a) having been duly summoned or ordered to attend before a court-martial

fails to comply with the summons or order;

(b) refuses to take an oath or make an affirmation when duly

required by a court-martial to do so ;

(c) refuses to produce any document in his custody or under his control which a court-
martial has lawfully required him to produce;

(d) when a witness, refuses to answer any question which a court-martial has lawfully
required him to answer;

(e) willfully insults any person, being a member of a court martial or a witness or any
other person whose duty it is to attend on or before the court, while that person is acting as
a member "thereof or is so attending, or while that person is going to or returning from the
proceedings of the court; or
 (f) wilfulIy interrupts the proceedings of a court-martial, or otherwise misbehaves before
the court, shall be liable to suffer short imprisonment.

(2) Where an offence against sub-section (1) is committed in relation to a court-martial and
the court is of opinion that it is expedient that the offender should be dealt with summarily by the
court instead of being brought to trial before another court-martial, the court may by order under
the hand of its president sentence him to imprisonment or (except in the case of an officer)
detention, for a term not exceeding twenty-one days.

NOTES

1. Court-martial means a court- martial held under this Ordinance; section 4 (vii).

2. This section does not apply to summary trial or boards of inquiry. A person, however, who
misbehaves in a similar manner before an officer holding a summary trial or before a board of
inquiry could be charged with an offence under sections 40, 41 or 75 as appropriate.

3. For the manner in which a person may be summoned or ordered to attend as a witness at a
court-martial see section 116 and rule 208. As to the appropriate form of summons, see Fourth
Appendix to the rules.

4. With regard to the privilege of witnesses, see Sections 121 to 132, Evidence Act.

5. Clause (e).-The phrase any other person whose duty it is to attend on or before the court
would not include members of the audience, but would include, for example, the Judge Advocate,
a spare member (until dismissed), the prosecutor, defending officer or counsel, a short-hand
writer, an interpreter, the officer of the court, the provost marshal and an officer under instruction.

6. Bona fide cross-examination, however, rigorous and searching it may be and even if its
purpose is to show that the person cross-examined is a rogue and a liar will not constitute an
'insult within the meaning of this clause.
 7. Clause (1). Otherwise misbehaves i.e., in any way whatsoever otherwise than by
interrupting. Such misbehavior, however, must be before the court, i.e., in the presence of the
court.

8. Sub-section (2).-As to the procedure which the court should adopt when any of the offences
mentioned in this section is committed before it by a person who is not subject to naval law, see
Rule 223.

SPECIMEN CHARGES

The accused (O.No., Name, Rank) of B.N.Sleftleft……….a sailor of

the Bangladesh Navy, is charged with:

No.1

When duly ordered to attend before a court-martial

failing to comply with the order,

in that he, at. . . . . . . . . . . . . .; on……………..., failed to attend the District

Court-Martial held at B.N.S……………., for the trial of ………………....,

when he had been duly ordered by the Judge Advocate……………………

on. . . . . . . . . . . . . . . . . . . . . to do so.

No.2

Wilfull interrupting the proceedings of a court-martial,

in that he, at. . . . . . . . . . . ., on. . . . . . . . . . . . . .. . , when present as member of the audience at a

court-martial held for the trial of (0. No., Rank, Name) wilfully interrupted the proceedings of the
said court-martial by shouting abusive remarks at the President of the said court-martial.

74. False evidence.-Every person subject to this Ordinance who, having been lawfully sworn
or affirmed as a witness or as an interpreter in proceedings before a court-martial or before any
board or person having power by virtue of this Ordinance to administer an oath or affirmation,
makes a statement material in those proceedings which he knows to be false or does not believe
to be true, shall be liable to suffer long imprisonment.

NOTES
1. The offence created by this section is almost identical with the civil offence punishable under
P.C. section 193. The maximum penalty under this section is, however, much greater than the
maximum punishment under section 193 P.C.

2. Where a person makes two contradictory statements he may be charged in the alternative
and convicted of intentionally giving false evidence, although it cannot be proved which of these
contradictory statements was false.

3. To prove the making of a false statement before a court or board etc. the person who made
the record and took down what the accused said should be called to state what he heard the
accused say. He may refresh his memory from the record as this would be a note made at the
time.

4. With regard to the admissibility of a statement made by the accused

at a board of inquiry, see Rule 258(18).

5. With regard to the action that might be taken against a person who is not subject to the
Ordinance, but who commits the offence mentioned in this section before a naval court-martial,
see Rule 223.

6. Lawfully sworn or affirmed:

(a) at a court-martial trial, see section,110,

(b) at Summary, Trial (i) sailors see rule 50 (ii) officers see Rule 120,
 (c) at a board of inquiry, see Rule 258 (12) and Rule 259 (1) and (5). As to the forms of oaths
or affirmation see Fourth Appendix to the rules.

7. This offence can be committed only by a person who has been lawfully sworn or affirmed. A
person who has not been so sworn or affirmed cannot be charged under this section, however,
false his statements may have been. He might, however, in certain circumstances be charged
under section 75.

8. In order to establish that the accused was lawfully sworn or affirmed care must be taken in
any case in which. the administration or oath or affirmation is not mandatory, (e.g. before a board
of inquiry, see Rule 258(12) to see that evidence is adduced to show that proper directions were
given for the evidence to be taken on oath or affirmation.

9. By virtue of this Ordinance.-The power to administer oath or affirmation may have been
conferred either by the Ordinance or by the rules, , since all rules made under this Ordinance, on
publication in the official Gazette, have effect "as if enacted in this Ordinance", see section 177
(3).

10. Whether a statement is material in any proceedings is a question of fact to be determined

by the court. Any statement is material if it is made for the purpose of affecting the court's
decision.

11. To secure a conviction on a charge under this section, it is necessary to show that the
accused intentionally gave false evidence, which he knew to be false or did not believe to be true.
An error or unintentional mistake would not justify a conviction.

SPECIMEN CHARGE

The accused (0. No., Name, Rank) of B.N.S…………… a sailor of the

Bangladesh Navy, is charged with:
 Having been lawfully affirmed as a witness before a person having power by virtue of the Navy
Ordinance, 1961, to administer an affirmation, making a statement material in those
proceedings, which
he did not believe to be true,
in that he, at……………. on,………………, having been lawfully affirmed as a witness at the
Summary Trial held by Lieut. Commander……………… made the following statement material
in those proceedings, which he did not believe to be true, namely... . . . . .. . . . . . ..

75. Conduct to the prejudice of naval discipline.-Every person subject to this Ordinance who
is guilty of any act, disorder or neglect to the prejudice of good order and naval discipline not
described in the foregoing provisions of this Ordinance shall be liable to suffer short
imprisonment,

NOTES

1. The alleged act, neglect or disorder on the part of the accused must have been prejudicial
both to good order and to naval discipline.

2. Whether an act, neglect or disorder can be prejudicial to good order and naval discipline is a
question of law. Whether such act, etc., was actually prejudicial in the circumstances is a question
of fact. So where a charge under this section is being tried, it is the function of the judge advocate
to advise the court whether the act, etc., alleged could or could not possibly be considered
prejudicial to good order and naval discipline; unless he advises that it could not, it is for the
court to find as a matter of fact whether in all the circumstances, it was prejudicial.

3. Whether an act is prejudicial both to good order and to naval discipline is not always an easy
matter to decide. It is impossible to lay down any rules that will be applicable to all cases that
may arise, but it can be accepted that every act or omission which is prejudicial to naval
discipline is also prejudicial to good order. Further, any act which in itself is a dereliction of a
Service duty on the part of the person who commits it is prejudicial to naval discipline and
therefore falls within this section, wherever it is committed and whether or not it has any effect on
the discipline of others.

4. Contravention of Navy Regulations, Fleet Orders. Captain's or Departmental Orders, if

committed without sufficient cause, is ipso-facto prejudicial both to good order and naval
discipline. Disobedience of orders given personally by a superior officer should be charged under
section 40 but contravention of oral instructions, of a general nature may found a charge under
this section, e.g., if a sailor disobeys in such circumstances that a charge would not lie under
section 40.

5. Acts committed or omissions made on board ship or in a naval establishment, which are
prejudicial to good order, are generally speaking prejudicial to naval discipline, but the court must
decide each case on its merits. If the misbehavior took place Onshore and was unconnected with
the service, such factors as place. company and the surrounding circumstances must be taken into
account, and the general test in such cases is whether the accused's conduct was such that it was
likely to affect the discipline of persons who were actually present, bearing in mind the sort of
persons they were e.g. the discipline of petty officers of nearly equivalent seniority to that of the
accused is usually unlikely to be affected, while "that of junior sailors might well be Knowledge
of such incidents which as, or could have subsequently been, acquired by naval ranks or sailors
junior to the accused is not of itself sufficient to make an act prejudicial to naval discipline; but, if
such juniors witness the incident, this could make it prejudicial.

6. Therefore, to found a charge under this section there must be either a definite dereliction of a
Service duty on the part of accused or at least some reasonably direct connection between the
accused's behavior and its effect on good order and naval discipline. Possible notoriety is not
sufficient.

7. The person who drinks to excess, unfitting himself for duty, should be charged under this
section unless the drinking was done with intent to render himself unfit for duty, in which case he
should be charged under section 57(c). To sustain such a charge the actual drinking to excess
must be proved; It must also be proved that the excessive drinking produced or aggravated the
illness. (See notes to section 57.)

8. Since this section refers to any act, disorder or neglect to the prejudice of good order and
naval discipline not described in the foregoing provisions of the Ordinance, any offence which is
capable of being charged under a preceding section of the Ordinance cannot be charged under
this section, e.g. if the accused neglects to perform some duty which is imposed on him when and
because he is acting in a. specific capacity, he must be charged under section 34 and not under
this section (see Note 3 to section 34).

9. Offences 'punishable under the ordinary taw should normally be charged as civil offences
under section 78 and must not be charged under this section unless the alleged offence can be
considered as basically prejudicial to naval discipline. For example, driving a vehicle so rashly or
negligently a to endanger human life or the personal safe of others, (an offence punishable under
section 336 P.C.) is not necessarily prejudicial to naval discipline; but if it were a naval vehicle,
such driving might well be prejudicial.
 10. When a person has negotiated a worthless cheque within the naval service or in connection
with his naval duties (e.g., in settlement of a mess debt to a merchant), a charge under this section
should be considered as an alternative to a charge of obtaining by false pretences under section
78. To establish a charge under this section an intent to defraud need not be proved, but it is
necessary to establish that the negotiation of the cheque was a direliction of a Service duty on the
part of the accused or was done in such circumstances. e.g., to a junior officer or sailor, as to
prejudice good order and naval discipline.

11. When threatening language is addressed to someone about a third person, the offence
cannot be charged under section 40, even if one of those persons is a superior officer, but can
properly be charged under this section.

12. Disobedience of the lawful commando a person other than a superior officer (see Note 3 to
section 39)-should be charged under this section. In certain cases because of the capacity in which
a person is acting, (e.g. as Officer of the Watch or sentry) a junior may give a lawful order to his
senior. In such a case the capacity in which the junior is acting should be stated in the charge.

13. Obscene language used by a person otherwise than in the presence of his inferiors cannot be
charged under this section.

14. As an alternative charge to one of indecency, it is sometimes possible to charge the accused
under this section with being in some specified place at some specified time contrary to some
standing orders or without reasonable excuse.

15. Where someone is found to be in possession of property that is not his own, and it is
impossible to prove either that he stole it or that he knew that it was stolen, a charge under this
section should be considered, either alone or as an alternative to theft or receiving property
knowing it to have been stolen.
16. Where the alleged offence is an omission, it should be charged as neglect to the prejudice,
etc.
17. The Regulations relating to the landing or unshipping of dutiable goods absolutely prohibit
the landing or unshipping of dutiable goods not covered by the concessions referred to in those
articles, unless either duty has been paid previously to a Customs Officer on board ship. If such
goods are knowingly landed or unshipped add such landing or unshipping is in contravention of
those articles, the charge should be laid u this section as an act to the prejudice etc., in
contravening the appropriate article. If there is any doubt whether the accused knew that he was
landing or unshipping the goods, an alternative, charge also under this section, of neglect to the
prejudice, etc., in not taking proper precautions to ensure that he was not landing (or unshipping)
dutiable goods in contravention of the appropriate article, should also be laid, as it is the duty of
every member of the Service to take every precaution to ensure that he does not contravene these
Regulations.

SPECIMEN CHARGES

The accused (0. No., Name, Rank) of B.N.S. . . . . . . . . . . . . . . . . ., a sailor of the Bangladesh
Navy, is charged with:

No.1
[

An act to the prejudice of good order and naval discipline,

in that he, atleftleft, onleftleft…….., was improperly in possession of one pair of boot the
property of O. No. . . . . . . Leading Seaman. . . . . . .

No.2

Disorder to the prejudice of good order and naval discipline,

in that he, atleftleft:leftleft, onleftleft………., violently resisted his escort........

when he, was being brought on board B.N.S. . . . . . . . . . . . . . . . . . . . . .

No.3

Neglect to the prejudice of good order and naval discipline.

in that he, at. . . . . . . . ,on. . . . .. . . so negligently drove service vehicle No.. . . . . as to cause it to
come into collision with a tree, thereby occasioning damage to the said vehicle to the extent of
Taka………………

No.4
The accused (Rank, Name, P. No.) of B.N.S…………., an officer of the Bangladesh Navy, is
charged with :

An act to the prejudice of good order and naval discipline.

in that he, at………………..on………………………..;improperly borrowed the sum of

Taka..................from Chief Petty Officer……………, O. No…………, a sailor subject to his
authority.

No.5

Neglect to the prejudice of good order add naval discipline,

in that he ,at…………………….,on…………………………, having delivered to……………

, the mess secretary of the Officers' mess of the said ship in payment of his mess bill a
cheque for Taka , dated .,and drawn on Bank Ltd, failed, without reasonable excuse, to
ensure that the said cheque would be honoured when presented.

(xiii) Attempts and Abetments

76. Attempts to commit naval offence.-Every person subject to this Ordinance who attempts
to commit any of the offences specified in the foregoing provisions of this Ordinance, or to cause
such an offence to be committed, and in such attempt does any act towards the commission of the
offence shilll, where no express provision is made by this. Ordinance for the punishment to such
attempt; be liable- .

(a) if the offence attempted to be committed is punishable with death, to suffer long
imprisonment;

(b) if the offence attempted to be committed is punishable with imprisonment, to suffer

imprisonment for a term i.e. which may extend to one-half of the longest term provided for
that offence; and

(c) if the offence attempted to be committed is punishable with dismissal from the service, to
suffer any punishment lower than dismissal in the scale of punishments provided in section
80.

NOTES
1. Attempt to commit an offence.-A mere "intention" to commit an offence, or any act which
amounts only to a "preparation" for the commission of an offence, will not amount to an actual
"attempt". It is essential that the accused must have don, some act towards the commission the
actual offence, before he can be convicted of an attempt under this section.
 2. This is section is applicable only to attempts to commit any of the offences specified in
sections 29 to 75 : except those sections where an express provision is made by this Ordinance for
the punishment of such attempts. e.g. section 36 (3) or section 38. Attempts to commit civil
offences are not friable under this section but are triable under this section 78.

3. Where a person is charged with committing an offence, but the evidence shows merely an
attempt to commit that offence, a court-martial may convict him of the attempt to commit the
offence charged; section 113 (1) (a). On the other hand, if a person is charged: with an attempt to
commit an offence and the evidence shows that the attempt had been perfected in the commission
of the full crime, he may, nevertheless, be convicted of the attempt as charged.

SPECIMEN CHARGE

The accused (O. No., Name, Rank) of B.N.S.centercenter……………….., a sailor

of the Bangladesh Navy, is charged with ;
Attempting to commit an offence specified in section 63(a) of the
Navy Ordinance, 1961, and in' such attempt doing an act towards
the commission of the same,

in that he, at. .. . .. . . . .. . ,on.. .. .. .. …. . attempted to commit theft of a purse belonging to

Leading Seaman. . . . . . . . . . . . ,a person subject to service law, and in such attempt put his hand
under the pillow of the said Leading Seaman when the latter was asleep.

77. Abetment of offences.-Every person subject to this Ordinance who abets the commission
of any of the offences specified in the foregoing provisions of this Ordinance shall, whether the
act abetted is committed or not in consequence of the abetment and where no express Provision,
is made by this Ordinance for the punishment of such abetment, be liable to suffer the punishment
provided for that offence.
NOTE

For definition of abetment see section 107 of the Penal Code:

SPECIMEN CHARGE
The accused (Rank, Name, P. No.) of B.N.S. . . . . . . . . . . . . ., an officer of the Bangladesh Navy,
is charged with ;
Abetment within the meanings of the Penal Code of the commission of an offence specified in
section 74 of the Navy Ordinance,1961,
in that he, at.. .. .. . .. . .., on instigated Petty Officer.. . . .. …………... .. to make a statement
before a Board of Inquiry held on board B.N.S... .. . .to inquire into the smuggling of two cartons
of Cigarettes from the said ship to the effect that he, the accused, had not directed the said Petty
Officer to take the two cartons on shore, which statement was material in those proceedings and
which the Petty Officer knew to be false.
 (xiv) Civil Offences
78. Civil offences triable by naval tribunal. (I) Subject to provisions of section 79, every
person subject to this Ordinance who, at any place in or beyond Bangladesh, commits any civil
offence, shall be deemed to be guilty of' an offence against this Ordinance and, if charged
therewith under this section, shall be liable to be tried by a naval tribunal, and on conviction,' be
punishable as follows, that is to say-
(a) if the offence is one which would be punishable under' the law in force in Bangladesh
with death or with transportation, he shall be liable to suffer any punishment, other than
transportation or whipping assigned for the offence by the aforesaid law and such less
punishment as is in this Ordinance mentioned:

Provided that, where transportation is assigned as a punishment for the offence by the
law of Bangladesh he shall be liable to suffer, in lieu of transportation, rigorous imprison-
ment for a term not exceeding the term of transportation awardable under such law for that
offence-rigorous imprisonment for fourteen years being deemed for this purpose the
equivalent of transportation for life: and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping,
assigned for the offence by any law in force in Bangladesh, or to suffer short
imprisonment or such less punishment as is in this Ordinance mentioned.

(2) A 'person subject to this Ordinance may be charged with an offence under this section
notwithstanding that he could on the same fact be charged with an offence under any other
section of this ordinance.

(3) Notwithstanding anything contained in this' Ordinance or in any other law for the time
being in force, a person who becomes subject to this Ordinance by reason of his being accused of
an offence mentioned in sub-section (3) of section 2, shall be liable to be tried by a naval tribunal
or otherwise dealt with under this Ordinance for such offence as if the offence were an offence
against this Ordinance and were committed at a time when such person was subject to this
Ordinance; and the provision of this section shall have effect accordingly.

(Vide Ordinance III of 1967)

NOTES

1. A civil offence is defined as an offence which is triable by a criminal court-section 4 (iii).

2. As to the concurrent jurisdiction of naval tribunal and criminal court, see Section 107 and
108.

3. "Naval tribunal"; section 95.

 “Criminal Court"; section 4 (viii).

4. Subject to the provisions of section 79, this section gives a naval tribunal jurisdiction to try
any persons who, while subject to the Ordinance commits a civil offence whether he commits
such offence in or beyond Bangladesh.

5. The Naval Tribunal has power to award any punishment "assigned for the offence by the
law in force in Bangladesh", and it therefore includes the power to award fine. The recovery of
fine is to be made in the same manner as it has been awarded by criminal court.

6. As to special findings as under this section see section.1l3(2), which gives a naval tribunal
the same powers as those possessed by a criminal court in this respect.

7. Certain Acts provide that no proceedings for an offence there under shall be instituted,
except upon a complaint made by order of, or under the authority of the Government, e. g. section
13(3) of the Official Secrets Act, 1923. No such complaint is, however, necessary when the
accused is tried by a naval tribunal.

8. The words “and such less punishment" etc. in clause (a) of sub. section (1) indicate that a
naval tribunal may sentence a person convicted of murder to, e. g.. dismissal from the service in
addition to rigorous imprisonments for fourteen years; the punishment assigned or the offence of
murder under P.C. section 302 being, death or transportation for life.

SPECIMEN CHARGES

The accused (0. No., Name, Rank) of B.N.S.rightright…………………., a sailor of

the Bangladesh Navy, is charged with :

No.1

(Under Section 78 read with P. C. section 124-.A)

Committing a civil offence, that is to say, sedition,

in that he, at……………...on…………………., by saying in the presence of Petty Officer. . . . . .

. . . . . .and other sailors of the Bangladesh Navy then assembled at……………..(set out the words
used), or words to that effect, attempted to excite disaffection towards the Government
established by law in Bangladesh.

No. 2
(Under section 78 read with P.C. section 147.)

Committing at civil offence, that is to say. rioting,

in that he, at.. .. .. .. .. .. .., on.. .. .. .. .. .. .., was a member of an unlawful assembly, which, in
prosecution of the common object of such assembly, to use criminal force the civil police, beat
the civil police with lathis, thereby committing the offence of rioting.
 NO.3

(Alternative under section 78 read with P.C. section 143.)

Committing a civil offence, that is to say, being a member of an

unlawful assembly,

In that he, at……….leftleft, on …………, was a member of unlawful assembly, the common
object of which was to use criminal force to the civil police.

NO.4

(Under section 78 read with P .C. section 304-A.)

Committing a civil offence, that is to say, causing death by a rash or negligent act not amounting
to cu1pable homicide,

in that he, at…………….., on………………... ... .rightright, by rashly or negligently driving

motor vehicle truck Norightright………… caused the death of……. .. . . . . . . . , a pedestrian.

No.5

(Under section 78 read with P.C. section 307.) .

Committing a civil offence, that is to say, attempt to murder, .

in that he, at .. . . . . . . . ., on. . . . . . . ., fired two shots from a rifle at Lieutenant ……………….of
B.N.S……………..with intent to kill him, and thereby wounded the said Lieutenant.. .. . .. .. .. .. .
in the right side of the chest and left thigh.

No.6

(Under section 78 read with P.C. section 325.)

Committing a civil offence, that is to say, voluntarily causing grievous hurt,

in that he, atleftleft…….., onleftleft………………, voluntarily caused grievous hurt to

………………leftleft.by fracturing his arm with a heavy stick

No.7
(Under section 78 read with P.C. section 380.)

. Committing a civil offence, that is to say, theft,

in that lie, at.. .. .. .. .. . ., on………………, committed theft in respect of two pairs of silk stocks,
value…………… , from the shop of:……….on New airport Road, the property of the said
...................

No.8

(Under section. 78 read with P.C. section 420.)

Committing a civil offence that is to say, cheating

in that he, at…………………, on……………...…, by falsely pretending to

Mr.rightright…………….., proprietor of....................,(firm) that he (the accused) was

Commander . . . . . . . . . . . . .. . . . . . . of the Bangladesh Navy, dishonestly induced the said
Mr.…………..to let him ha,e on credit one Grunding Radiogram,
valuerightright…………………, and thereby cheated the said

Mrleftleft..

79. Civil offences triable by naval tribunal under special circumstances.-A person subject
to this Ordinance who commits an offence of murder against a person not subject to service law,
or of culpable homicide not amounting to murder against such a person, or of rape in relation to
such a person, shall be deemed to be guilty of an offence under this Ordinance and shall be tried
by a naval tribunal, provided he commits any of the said offences,-
(a) while on active service;
(b) at any place outside Bangladesh; or

(c) at any place specified by the Government by notification in this behalf.

NOTES
1. This section provides an exception to the general power given under section 78 to a naval
tribunal of trying civil offences. The exception extends only to three offences specified in the
section, namely, (a) murder of a person not subject to service law; (b) culpable homicide not
amounting to murder of such person; and (c) rape on a woman who is not subject to service law.
Normally, therefore, if a person subject to the Ordinance is charged with anyone of these three
offences, he cannot be tried by a naval tribunal but must be handed over for trial before a criminal
court. If, however, any of these offences is committed (a) while on active service; (b) at any place
outside Bangladesh; or (c) at any place specified by the Government by notification in this
behalf, a naval tribunal will have jurisdiction under this section to try the offender.
2. See notes to section 78 generally.
3. (i) active service, see section 4 (i).
(ii) service law, see section 4 (xxxiv).

SPECIMEN 'CHARGES
The accused (O,No., Name, Rank) of B.N.Sleftleft, a Sailor of the Bangladesh Navy, is charged
with :-

No.1

(Under section 79 read with P.C. section 302.)

While on active service committing a civil offence, that is to say,

murder against a person not subject to service law,

in that he, atrightright, on......leftleft, while on active service, by causing the death of a civilian. . .
. . . . . . . . . . . . . . . . .., committed murder.

NO.2

(Under, section 79 read with P.C. section 376.)

At a place outside Bangladesh committing a civil offence, that is to say, rape in relation to a
person not subject to service law,

in that he, at. . . . . . . . . . . . ., (a place outside Bangladesh, committed rape on

one…………………… a person not subject to service law.

NO.3

(Under "section 79 read with P.C. section 304.)

 Atleftlefta place specified by the Government by leftleftnotification
(No………………………........ , dated…………………………………,) in this behalf,
committing a civil offence, that is to say, culpable homicide not amounting to murder against a
person not subject to service law.

in that he, at. . .. . .. ... on. .. .. .. .. .. . .. .. .. , by causing the death of a man

named………………….. committed culpable homicide not amounting to murder.
 CHAPTER VII
PUNISHMENTS
80. Scale of punishments.-(1) Subject to the provisions of this and the next following
section, the following are the punishments which may be awarded to persons convicted of
offences under this Ordinance that is to say:-
(a) death,
(b) long imprisonment,
(c) short imprisonment,
(d) dismissal from the service,
(e) detention,
(f) forfeiture of seniority in rank in the case of officer,
(g) forfeiture of time for promotion in case of subordinate officers,
(h) disranking (hh) fine,
(i) penal deductions,
(j) severe reprimand or reprimand;
(k) such minor punishments as may be prescribed.

(2) In this application to a convicted person who is an officer, sub-section (1) shall have
effect as if clauses (e), (h) and (k) thereof were omitted; and in its application to a convicted
person who is a sailor that sub-section shall have effect as if clauses (f), (g) and (j) thereof were
omitted.

NOTES

I. (a) The punishments referred to in this section are the only punishments which can be
awarded by a naval tribunal, even though in cases of charges under section 78 a criminal court
could have awarded another punishment had the accused been tried before the criminal court for
the same offence.

(b) The correct wording of sentences is set out in the Fourth Appendix to the Rules, which
should be strictly adhered to while recording a sentence.

(c) As to the jurisdiction and powers of general, district and summary general court-martial, see
sections 96, 97 and 98 respectively.

2. Death.-(a) A sentence of death can only be passed by a general or a summary general court-
martial, and them only if concurred in by, in the case of a general court-martial, at least two thirds
of the members and, in the case of a summary general court-martial, all the members of the court;
see provision to section 111(i).

(b) In awarding a sentence of death, the court must add a direction that the accused shall suffer
death by "being hanged by the neck until he be dead", or by "being shot to death"; section 141.
 (c) A sentence of death may be commuted by the confirming authority under section 132, or by
the competent authority under section 153, to any

punishment or punishments lower in the scale laid down in sub-section (1) This is so even if the
sentence has been: passed in respect of an offence of murder. .

(d) As to carrying out of sentence of death, see rule 243.

3. Imprisonment.-See section 4 (XV) and (XXXV). (a) A sentence of

imprisonment or detention, whether revised or not, and whether the accused is already
undergoing sentence or not, commences on the day on which the original sentence was signed by
the president of the court-section 142. As to execution of sentence of imprisonment, see section
143.

(b) An officer sentenced to imprisonment must also be sentenced to dismissal from the service-
section 81 (I) (b).

(C) A sentence of imprisonment may be commuted to a sentence of detention under section

132 or section 153, but the term of detention must not exceed the term of imprisonment awarded
by the court.

4. Dismissal from the service,-(a) As to dismissal other than by sentence of court-martial, see
section 17 : also see rules 9 and 23. .

(b) For the date on which sentence of dismissal takes effect. see rule 247.

(c) As to the effect of suspension and remission on dismissal, see section 163.

5. Detention.-(a) A sentence of detention cannot be awarded to an officer sub-section (2). : and

the maximum term for which detention can be awarded to a Sailor by a court-martial is six
months section 81 (4), A commanding officer, on summary trial, cannot award imprisonment or
detention for a period exceeding three months j see section 102 (3) and rules 68 and 79, (3).
 (b) As to commencement of sentence of detention, see section 14h. and as to execution of such
sentence, see section 144.

6. Forfeiture of seniority in rank.-(a) This punishment must be imposed in substantive rank

held by the officer at the date of the sentence. As to the effects of such a sentence. see section 81
(5) and (6).

(b) This punishment may be awarded summarily by the Chief of Naval Staff or a prescribed
officer empowered by him in this behalf, to an officer of the rank of Lieutenant or below, for a
period not exceeding six months: see section 103. As for a D.C.M., see section 97 (2) (a)

(7) Forfeiture of time for promotion.-(a) This punishment can only be awarded in case of 1i
subordinate officer namely: a person appointed as an acting sub-lieutenant a midshipman or a
cadet: section 4 (xxxvi). The effect of the punishment is that it delay s the promotion of the
person concerned by the time specified section 81 (7).

(b) The maximum period for which this punishment can be awarded summarily to a
subordinate officer is six months: section 103. As for a D.C.M see section 97 (2) (a)

8. Disranking-See section 81 (8) and rule 82.

9. Penal deductions-8ee section 82 and notes thereto,

81. Provision as to award of punishment.-(l) A sentence of imprisonment shall involve-

(a) in a11 cases, stoppage of pay during the term of imprisonment ;

(b) in the case of an officer dismissal from the service:

(c) in the case of a sailor, disranking and deprivation of good conduct badges and may be
accompanied by a sentence of dismissal from the service.

(2) The sentence of dismissal from the service may be accompanied by a sentence of
forfeiture of all or any part of the pay bounty salvage and allowances earned by and of all
annuities and medals granted to the offender:
 Provided that the forfeiture shall not apply, except in the case of deserters to moneys which
should have been paid on the last pay day preceding conviction.

(3) The punishment of dismissal from the service shall in the case of persons who hold any
lien on appointment in the army or air force or civil service, involve dismissal from such army air
force or civil service.

(4) Detention may be awarded for any term not exceeding six months; and a sentenced of
detention shall in all cases involve stoppage of pay during the term of-detention, and disranking.

(5) The punishment of forfeiture of seniority shall be imposed in the substantive rank held at
the date of the sentence and shall involve a Corresponding forfeiture of seniority in every higher
acting rank subject always to the condition that forfeiture of seniority in any rank shall in no case
exceed the seniority in that rank at the date of the sentence.

(6) The punishment of forfeiture of seniority shall involve the loss of the benefit of service
included in the seniority forfeited for the purposes of pension gratuity promotion and such other
purposes; as may be prescribed, provided that such pension, gratuity and promotion and other
purposes depend upon such service.

(7) The punishment of forfeiture of time for promotion shall delay the promotion by the time
specified.

(8) A sentence of disranking may reduce the offender to any rank not lower than that
prescribed in relation to persons of the class to which he belongs and references in sub-sections
(1) and (4) to disranking are references to reduction to the rank so prescribed.

(9) Penal deductions mean deductions as specified hereinafter in this Ordinance and may
accompany a sentence of imprisonment.

(10) Subject to the provisions of his Ordinance a naval tribunal may on conviction, award
either the punishment specified by this Ordinance as the penalty for an offence, or in lieu thereof
anyone of mote of the punishments inferior in degree to the specified punishment, according to
the scale of punishments laid down in sub-section 1 of section 80.
 1. This section controls the previous section and specifies the particular instances in which
more than one punishment may be awarded. It also lays down the effect which certain
punishments shall have on the person concerned.

(2) Subsection (l).-Although a sentence of imprisonment, in the case of an officer, "involves"

his dismissal from the service, the court should invariably specify the dismissal in the sentence.
Where the court fails to add the sentence of dismissal, they must be asked to revise their sentence.
Similarly, in the case of a Sailor, although a sentence of imprisonment involves disranking, it is
desirable to specify the disranking in the sentence, see sub-section (8) and rule 82.

3. Subsection (4).-See note 5 to section 80.

4. Subsection (10)-Subject to the provisions of this Ordinance: these words indicate that
although, a naval tribunal may on conviction. award either the particular punishment specified by
this Ordinance as the penalty for an offence or in lieu thereof, anyone or more of the punishments
inferior in degree to the specified punishment, according to the scale of punishments laid down in
section 80 (1) this power is subject to other provisions of the Ordinance. For example see section
78 (1) (a) and note 7 thereto. The extent of the power to award punishments also depends, on the
type of the naval tribunal trying an offender A D.C.M., for instance cannot award a sentence of
more than two years R. I. to a Sailor; section 97 (2); even though the offence for which it is trying
the accused is punishable with long imprisonment.

CHAPTER VIII

PENAL DEDUCTIONS

82. Deductions from pay and allowances of officers and Sailors-Subject to the provisions
of this Chapter following deductions may be made from the pay and allowances of an officer or
sailor without recourse to trial by a naval tribunal, namely:

(a) all pay and allowances for every day of absence without leave unless a satisfactory
explanation is given to the commanding officer and approved, in case of officers, by the
Chief of Naval Staff;

(b) all pay and allowances, for every day while he is in dun or naval custody or under
suspension from duty on a charge for an offence of which he is afterwards convicted by a
naval tribunal or a criminal court and sentenced to imprisonment;

(c) all pay and allowances for every day while he is in hospital on account of sickness
certified by the prescribed medical officer to have been caused by an act amounting to an
offence punishable under this Ordinance:
 Provide that such certificate is accepted by the Chief of Naval Staff or, in case of a sailor,
by the prescribed officer;

(d) any sum required to make good any loss, damage or destruction of Government or service
property which after due investigation appears to the Chief of Naval Staff or the prescribed
officer to have been occasioned by the wrongful act or negligence on the part of the officer or
sailor as the case may be:
Provided that the total deductions made under this clause shall not in any case exceed his
pay and allowances for three months;
(e) any sum which after due investigation appears to the prescribed officer to be due to a
service mess or canteen; and
(f) any sum which a criminal court or the Government orders him to pay for the maintenance
of his wife or illegitimate or illegitimate children.

NOTES

1. (a) It is illegal to make deduction; from the pay and allowances of an officer or Sailor unless
they are authorised by or under this or any other enactment or prescribed by the Government",
section 22.

(b) This on states the penal deduction~ that may be made from the pay and allowances of an
officer or Sailor; the section is permissive, not mandatory.

(c) As to deductions actually made within the limits of the section, see Pay and allowances
Regulation; and as to remissions see section 87 and rule 283.

(d) Other deductions which may be lawfully made are set out in rule 280. They are limited to
deductions which are not penal under this section.

2. Clause (a).-If pay has not been drawn during a period of absence without leave, such pay if
forfeitable under this clause; if pay has been drawn during a period of absence without leave, the
issue constitutes an "over issue made through an error as to the facts", and the; amount is
recoverable as a "public claim", see Explanation in rule 280. It is not necessary for a person to be
found guilty of absence without leave before a forfeiture can be enforced under this clause.
3. Clause (b).-See also section 84, which Is a corollary to this clause.

4. Clause (c).-For "prescribed medical officer" and "prescribed officer" see rule 281.

5. Clause (d).-(i) "Occasioned by"-The loss must be the natural and reasonable consequence of
the wrongful act or negligence of the person concerned. It is not sufficient to show merely that the
loss was facilitated or made possible by such act or negligence, though in such circumstances
recovery may be effected as a "public claim" under rule 280.

(ii) It must be shown to the satisfaction of the Chief of Naval Staff or the prescribed officer as
the case may be, that there has been a loss etc. occasioned by (in the sense referred to above)
some wrongful act or negligence on the part of the officer or the Sailor concerned. As a general
rule, an officer should in the first instance be afforded an opportunity to advance any reasons why
a deduction should not be made. The Chief of The Naval Staff can legally impose a penal
deduction on an officer, under this clause not withstanding that he has been dealt with under
section 103 for the wrongful act or negligence, but he cannot increase a penal deduction awarded
by a court-martial. An invitation to an officer to make payment towards any loss or damage
occasioned by his wrongful act or negligence does not debar the Chief of Naval Staff from
making an under order this clause.

(iii) Negligence has the same meaning as neglect under section 75; (see note 11 to section 75).
.

(iv) The proviso to this clause lays down the maximum amount of deductions which can be
made under this clause, that is to say, the deduction must not in any case exceed the pay and
allowances of the person concerned for three months.

(v) For "prescribed officer" see rule 281.

6. Clause (e).-"Prescribed officer", see rule 281.

7. Clause (r).-This clause is restricted to the orders of the criminal court in proceedings under
section 488 or the Code of Criminal Procedure and the amount directed by such order is to be
deducted from the pay and allowances of the person concerned and deposited in the court or as
specified therein. But where no such order has been made by the court and the Government are
satisfied as to the genuineness of a wife's or child's claim to maintenance, they may order
deductions to be made from the pay and allowances of the person concerned for such
maintenance; provided such deductions do not exceed in anyone month one half of the person's
pay and allowances for that month; section 83.

83. Limit of certain deductions.-Except when the deductions are made under clauses (a) and
(b) of the last preceding section, the total deductions from the pay and allowances of an officer or
sailor shall not exceed in anyone month one-half of his pay and allowances for that month.

NOTE

This section lays down the restriction that he total deductions made under clauses (C) to (f) of
section 82 must not exceed in anyone month one-half of the pay and allowances of the officer or
Sailor concerned for that month. It is always desirable to make an order for deductions to be
effected by easy installments so that the officer or Sailor concerned is not financially
embarrassed, as that would be injurious to discipline. Also see note 7 to section 82.

84. Pay and allowances during trial.-In the case of any person subject to this Ordinance who
is in naval or civil custody 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:

Provided that no part of the pay and allowances shall be withheld in the absence of any such
direction.

NOTES

1. Prescribed officer.-See rule 282.

2. The proviso to this section is mandatory. Unless a specific direction to the contrary is made
by the prescribed officer, the pay and allowances (or any part thereof) of an officer or Sailor, who
is in custody on a charge for an offence, must not be withheld pending the result of his trial.
 85. Deduction from money due to a person.-Any sum authorized by this Ordinance 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 money due to him from Government other than a
pension.

NOTE

Any money due to him.-This means that deductions may be made from a gratuity, or other
sum earned but not paid to an officer or Sailor. It would not include money lodged in a fund of
whatever description.

86. Pay and allowances of prisoner of war during inquiry into his conduct.-Where the
conduct of any person subject to this Ordinance when being taken prisoner by, or while in the
hands of, the enemy, is to be inquired into under this Ordinance or any other law, the Chief of
Naval Staff or any officer authorised by him may order that-die whole or any part of the pay and
allowances of such person shall be withheld pending the result of such inquiry.

NOTE

Prisoner of war.-See section 88 (2).

87. Remission of deductions.-(1) Any de4uctions from the pay and allowances authorised by
or under this Ordinance may be remitted by the Chief of Naval Staff, in his discretion.

(2) Such deductions may also be remitted in such manner and to such extent and by such
authority as may be prescribed.

NOTES
 1. Authority prescribed.-See rule 283. The most common case is that of a man absent without
leave for a short period. In such a case, unless the man is convicted by a naval tribunal, his
commanding officer may remit the forfeiture of pay and allowances which his absence entails.
See section 82 (a).

2. To such extent.-The remission may be partial; but there is nothing to prevent a further
remission being made later.

88. Provision for dependants of prisoner of war from his pay and allowances.-(1) It shall
be lawful for proper provision to be made by the prescribed authorities for any dependants of any
person subject to this Ordinance, who is a prisoner of war or is missing out of his pay and
allowances.

(2) For the purpose of this section, 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 86; and if
he is dismissed from the service in consequence of such conduct, until the date of such dismissal.

NOTE

Prescribed authority for the purpose of this section is the Chief of Naval Staff; see rule 284.

CHAPTER IX

ARREST AND PROCEEDINGS BEFORE TRIAL

89. Duty to bring offenders to justice and powers of arrest.-(l) It shall be the duty of every
person subject to this Ordinance who knows or has reasonable grounds for suspecting that another
person subject thereto is committing or has committed an offence under this Ordinance to take all
reasonable steps within his power to cause that person to be brought to justice.

(2) The following persons shall have power to arrest a person subject to this Ordinance who is
found committing or is alleged to have committed or is reasonably suspected of having
committed any such offence as aforesaid, that is to say:

(a) In case of an officer, an officer subject to this Ordinance who is his superior officer, or, if
the person to be arrested is engaged in a quarrel, affray or disorder, any officer subject to this
Ordinance;
 (b) in the case of a Sailor an officer subject to this ordinance, a Master chief petty officer,
Chief petty officer, Petty officer or a leading sailor subject to this Ordinance who is of
superior rank or senior Lo him in the same rank, and any sailor exercising the authority as a
member of the regulating staff or as a member of the staff of the officer of, the watch;
(c) in any case, a provost officer or any officer or person legally exercising authority under or
on behalf of a provost officer; Provided that an officer shall not be arrested by virtue of clause
(c) except on the order of another officer:
(3) Any power of arrest under this section may be exercised either personally or by ordering
into arrest the person to be arrested or by giving orders' for the person's arrest.

NOTES

1. As to arrest and investigation of charges generally, see rule 42 to 58.

2. Superior officer; see "section 4 (xxxvii).

3. Any officer in clause (a) of sub-section (2) indicates that an officer who is, engaged in a
quarrel, affray or disorder may be arrested by any other officer even though inferior in rank to the
one who is so engaged. The Superior officer would be guilty of an offence under section 43 (c) if
he refuses to obey the officer who orders him into arrest or if he uses criminal force to or assaults
such officer. See note 4 to section 43.

90. Provision for avoiding delay after arrest.-(l) Where any person subject to this
Ordinance is placed under arrest, it shall be the duty of his commanding officer to ensure that as
soon as may be either the proceedings are taken for his trial or he is released from arrest.

(2) Every person' subject to this Ordinance who has been taken into naval custody and kept
under close arrest shall be produced before his commanding officer" within a period of 48 hours
of such arrest, excluding the time necessary for the journey from the place of arrest to the
commanding officer, and no such person shall be detained in custody beyond the said period
without authority of the commanding officer.
(3) Whenever any person subject to this Ordinance having been taken into naval custody,
remains, under close arrest for a period longer than eight days without being tried summarily or a
court for his trial being or4ered. to assemble, a special report on
the necessity' for further delay shall be made by his commanding officer to the Chief of Naval
Staff and a similar report shall be so made every eight days until the person under arrest is
released from arrest or tried summarily or such a court is ordered to assemble.

NOTES

1. Commanding officer. See section 4 (vi).

2. As to the Form of special report require under sub-section (3) see note 2 rule 44.

91. Duty to receive or keep in the custody.-(1) The Commanding officer shall be
responsible for the safe custody of every person who is in naval custody on board his ship or in
his establishment.

(2) The officer or Sailor in charge of a guard, or a provost marshal shall receive and keep
any person who is duly committed to his custody.

92. Procedure before trial.- Subject to the provisions of this Ordinance the procedure
before trial and the manner of investigation shall be as prescribed.

NOTES

As to the manner of investigation of offences see rules 46 to 58.

93. Arrest under warrants of naval authorities.-A warrant for the arrest of person
suspected of any offence under this Ordinance may be issued in the prescribed form by the Chief
of Naval Staff his Commanding officer or any other officer empowered by the Chief of Naval
Staff in his behalf, and shall be executed as it has been issued by a Magistrate of competent
jurisdiction.

(2) Every person, to whom such a warrant is issued, shall take steps to execute the warrant
and arrest the offender and shall as soon as may be, arrest the person and deliver him into naval
custody.

(3) A person authorised to arrest an offender may use such force as may be necessary for the
purpose of affecting such arrest.
 NOTES

1. As to the prescribed form of warrant, see Fifth Appendix to the rules. (see also rule 62).
2. As to the arrest of deserters and absentees see rule 59.

94. Provost-Marshals.-(l) Provost-Marshals maybe appointed by the Chief of Naval 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 servings in, or
attached to the Navy.

(3) A provost-marshal may at any time arrest and detain for trial any person subject to this
Ordinance 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 naval tribunal 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.

Explanation.- For the purposes of sub-sections (2) and (3), a “ provost-marshal” shall be deemed
to included a provost-marshal appointed under the Army Act, 1952 (XXXIX of 1952), or the air
force Act, 1953 (VI of 1953), and any person legally exercising authority under him or on his
behalf.

NOTES

1. The term provost-marshal by the Chief of Naval staff, by it includes “any person legally
exercising authority under him or on his behalf, It also includes provost-marshals appointed by
the Army and Air Force authorities who possess exactly the same powers as the one appointed
under the Ordinance.
 2. Provost-marshal has no power of punishment, but may carry into effect any punishment,
including punishment of death, awarded by a naval tribunal.

3. The words charged with an offence in sub section (3) merely mean that a complaint has
been made against the person concerned that he has committed an offence, The word “charge” in
this context is to be distinguished from the formal charge defined in rule 124(2), namely an
accusation contained in a written charge-sheet, which is essentially required for the purpose of
trial by court-marshal.

CHAPTER X
 AUTHORITIES HAVING POWER TO AWARD

PUNISMENT

Naval tribunal.-(1) An officer triable under this Ordinance shall be tried by a naval
95. tribunal, namely:
(a) general court-martial,
(b) district court-martial,
(c) summery general court-martial,
commanding officer or such other officer or authority exercising power of summery trial
(d) and punishment as may be prescribed.

2. A trial by a naval tribunal under the provisions of this Ordnance shall be deemed
to be a judicial proceeding within the meaning of section 193 and 228 of the Penal Code (Act
XLV of 1860), and the naval tribunal shall be deemed to be a court with in the meaning of section
480 and 482 of the Code of Criminal Procedure, 1898 (act V of 1898),

NOTE

Section 193 P.C. refers to giving false evidence whereas section 228 deals with international
insult of the court. Section 480 and 482 of the Code of Criminal procedure lay down the
procedure for dealing with such cases. For the offences relating to contempt of court-martial by
witness and others see Rule 223.

96. General court-martial-(1) A general court-martial may be convened by the Chief of

Naval Staff or any prescribed officer empowered in this behalf and to such extent as may be
specified in the warrant issued under the hand of the Chief of Naval Staff.

(2) A general court-martial shall have an officer not below the substantive rank of commander
as president and shall have power to try any person subject to this Ordinance for any offence
punishable therein and to pass any sentence authorised thereby.

NOTES

1. Form of G.C.M. warrant; see Sixth Appendix to the rules.

2. As to the duties of an officer before convening a court. see rule

97. District court-martial.-(l) A district court-martial may be convened by any authority

having power to convene a general court-martial or any prescribed officer empowered in this
behalf and to such extent as may be specified in the warrant issued under the hand of the Chief of
Naval Staff

(2) A district court-martial shall have an officer not below the substantive rank of lieutenant
commander as president and shall have power to try any person subject to this Ordinance, who is
of the rank of lieutenant or below or a Sailor and to pass any sentence authorised by this
Ordinance not exceeding,-

(a) in the case of an officer, forfeiture of seniority in rank or

forfeiture of time for promotion for a period of one year
and
(b) in the case of a Sailor short imprisonment.

NOTES
1. Form of D.C.M. warrant, see Sixth Appendix to the rules,

2. Although a D.C.M. may be convened by any authority having

power to convene a G.C.M., but a warrant authorising an officer to convene a D.C.M. can only be
issued by the Chief of Naval Staff.

Prescribed officer for the purpose of this section is the Administrative

Authority see rule 285.

4. As to the duties of an officer before convening a court, see rule 131.

98. Summary general court-martial.-(l) A summary general court-martial may be

convened-

by any authority having power to convene a general court-martial or any prescribed officer
empowered in this behalf and to such extent as may be specified in the warrant issued under
(a) the hand of the Chief of Naval Staff.
(b on active service, by an officer commanding a flotilla or
squadron not below the substantive rank of commander, if in
the opinion in writing of such officer commanding which
 opinion shall be final, it is not practicable having regard to
discipline and the exigencies of the service, to try the alleged
offender by a general or district court-martial.

(2) A summary general court-martial shall have an officer not below the substantive rank of a
lieutenant commander as president and shall have power to try any person subject to this Ordi-
nance for any offence punishable therein and to pass any sentence authorised thereby.

NOTES

1. The object of this section is to provide for speedy trial of offences committed abroad or on
active service.

2. The power confered by clause (b) of sub-section (1) is absolute and may be exercised without
any warrant. But like all judicial powers, it must be exercised judiciously and not arbitrarily and
only on active service as defined in section 4 (i) or when active service has been declared under
section 9.

99. Composition of court-martial. (1) A court-martial shall consist of such number of

officers, of any branch of the Bangladesh Navy, who have held commissions for a period of not
less than three years and who are of or above the rank of lieutenant as the authority/ordering the
court-martial may fix, subject to the following limits, namely :-
a general court-martial shall consist of not less than five and not more than nine such
(a) officers;
a district court-martial shall consist of not less than three and not more than seven
(b) such officers and
a summary general court-martial shall consist of not less than' three and not more
(c) than five such officers.

(2) The president and other members of a court-martial and

such spare members as the authority ordering the court-martial considers appropriate for the
purpose of filling vacancies, shall be nominated by that authority.
(3) The officer who orders a court martial shall not be a member of the court-martial;
and no court-martial shall consist of officers all of whom belong to the same ship or naval
establishment.
(4) A court-martial for the trial of an officer shall not include more than one member,
who is below the rank of such officer.

NOTES
 1. A court would have no jurisdiction each officer had not held a commission for the
required period of three years, or if its composition differed in any respect from that detailed in
the convening order.

2. As to ineligibility and disqualification of officers for court-martial see rule 133.

3. As to extent and nature of the control tbat civil courts exercise over the proceeding of
court-martial see notes to section 140.

100. Judge Advocate.-(l) 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 Judge Advocate General, or if no such officer is
available, a fit person appointed by the convening officer.

(2) No general court-martial, and no district or summary general court-martial to which

a judge advocate has been appointed shall proceed with the trial in the absence of the judge
advocate.

NOTE

NOTE

The Court will in no circumstances proceed in the absence of a judge advocate who has been
duly appointed, as this would affect the constitution of the court as required by the Ordinance. See
note to section 140.

101. Quorum and dissolution of court-martial.- (1) if at any time after a court-martial
has been sworn and before the president has signed the finding and sentence, if any, the president
or the judge advocate dies or is otherwise unable to attend, the court shall be dissolved.
 (2) The proceedings of a court-martial shall be valid notwith standing the absence of
one or more of the members other than the president, so long as the number of members present
throughout the proceedings is not reduced below the minimum required by this Ordinance to
constitute the Court; otherwise the court shall be dissolved.

(3) Where any member is absent the court shall be adjourned, unless it is allowed to proceed
without such member by the convening authority, in which case such member shal1 not at any
subsequent stage sit on that court.

(4) 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 trial.

(5) Where a court-martial is dissolved under this section the accused may be tried by a court-
martial constituted afresh.

NOTES

1. Sub-section (4).-This sub-section confers a very wide power on convening officer

who must exercise it judiciously and only when the circumstances make is exercise imperative,
otherwise be would be liable to be questioned for the abuse of his power.

2. Sub-section (5).-It may frequently be inexpedient to convene a fresh court for retrial
under this sub-section especial1y where the accused has been for some time under arrest or in
confinement.

102. Powers of commanding officers in respect of summary trial.-(l) Subject to the

provisions of this section, a Sailor may be summarily tried by the officer in command of the naval
ship or naval establishment to which the offender belongs either at the time of the commission of
the offence or at the time of the trial, and may be awarded such punishment as may be prescribed.

(2) This section applies to every offence under this Ordinance other than an offence
punishable with death.

(3) A commanding officer shall not have power under this section to award a sentence
of imprisonment or detention for any term exceeding three months.
 (4) The power conferred by sub-section (I) on the officer in command of a ship or
establishment may, subject to rules be exercised.-

(a) in respect of persons on board a single tender or boat which is absent from the
ship or establishment on detached service, by the officer in command of that tender or
boat,

(b) in respect of persons on board any one of two or more tenders or boats which are
absent as aforesaid on detached service in company or acting together, by the officer in
immediate command and of those tenders or boats:

(c) in respect of other persons absent from the ship or establishment on detached
service either on shore or elsewhere, by the officer in immediate command or those
persons, and

(d) in respect or sailors attached to or serving with any body of the regular army or
the air force under prescribed conditions by the commanding officer or any such body.

(5) The power conferred on any officer by subsection (1) or subsection (4) may be
delegated by that officer to any other officer to such extent and subject to such conditions as
maybe prescribed.

NOTES

1. This section empowers commanding officers of ships and establishments, and certain
other officers specified in sub-section (4) to summarily try a Sailor and award such punishment as
may be prescribed. These punishments arc prescribed in rule 68.

2. As regards officers in command of tenders or boats detached and officers in

immediate command of Sailors on detached service on shore or elsewhere, see rules 70 and 71.

3. Sub-section (5).-As to the delegated powers of punishment to "other officers", see rules
72 to 78.

103. Powers of other authorities in respect of summary trial- The Chief of Naval
Staff or any prescribed officer empowered by him in this behalf may in the prescribed manner
and to such extent as may be specified by the Chief of Naval Staff, summarily try an officer of the
rank of lieutenant or below charged with an offence under this Ordinance and award any
punishment authorised by this Ordinance not exceeding forfeiture of seniority in rank or
forfeiture of time for promotion for a period of six months.
 NOTE

This section empowers the Chief of Naval Staff to summarily try an officer of the rank of
lieutenant or below and award certain punishments which are prescribed in rule 119. This power
can be conferred by the Chief of Naval Staff on any officer not below the rank of captain. For the
procedure relating to summary disposal of a charge against an officer, see rules 120 to 123.

104. Place of trial.-Any person subject to this Ordinance and charged with an offence
under this Ordinance may be tried and punished at any place whatsoever.

NOTE

This section enables a court to try an offender in any place whatever, whether within or
outside Bangladesh. A court-martial may be convened on board a naval ship even when it is on
high seas or in any foreign territorial waters; because international law recognises a naval ship as
a floating part of the territory of the State, which owns it and whose flag it is flying.

105. Period of limitation for trial.-(1) Save as provided in sub-section (2), no trial-by
naval tribunal of any person subject to this Ordinance for any offence shall be commenced after
the expiration of a period of three years from the date of the commission of such offence.

(2) The provisions of sub-section (l) shall not apply to a trial for an offence of desertion
or fraudulent enrolment or for any of the offences relating to mutiny.

(3) In computing the period of time mentioned in sub-section (1) any time spent by such
person as a prisoner of war, or in any enemy territory, or in evading arrest after the alleged
commission of the offence, shall be excluded.

(4) Notwithstanding anything contained in sub-section (2), no trial for an offence of

desertion (other than desertion on active service) or of fraudulent enrolment shall be commenced
if the person concerned (not. being an officer) has, subsequently to the alleged commission of the
offence, served continuously in an exemplary manner for not less than three years with any
portion of the armed forces.
 NOTES

1. The effect of this section is that on the expiration or three years from the commission of
an offence, the offender is free from being tried or punished under this Ordinance by a naval
tribunal, for any offence except mutiny, desertion or fraudulent enrolment.

2. Mutiny and desertion on active service may be tried at any time. For desertion not on
active service and fraudulent enrolment, a man can not be tried if he has since served
continuously in an exemplary manner for three years with any portion of the armed forces.

3. Fraudulent enrolment.-The offence of fraudulent enrolment has not been specified as

such in the Ordinance but the term would apply to the case of a person who enrolls himself in the
Navy by willfully giving false answers to any question set forth in the enrolment form.

4. Active service.-See section 4 (i) and section 9.

5. Sub-section (3).-Continuous absence without leave constitutes "evading arrest" The

onus is on the prosecution to prove such absence.

6. Armed forces.-See section 4 (ii).

106. Liability of offender who ceases to be subject of this Ordinance.-(1) Subject to

the provisions of this section, a person who has ceased to be subject to this Ordinance may be
tried under this Ordinance for any offence committed while subject to this Ordinance and may for
that purpose be arrested and kept in naval custody as if he had not ceased to be subject thereto.

(2) Save as provided in sub-section (3), no such person as aforesaid shall be tried for an
offence, unless his trial commences within six months of his ceasing to be subject to this
Ordinance.
 (3) The provisions of sub-section (2) shall not apply to the trial. of any such person as
aforesaid for an offence of desertion or fraudulent enrolment or for any of the offences relating to
mutiny.

(4) Nothing contained in sub-section (2) shall affect the jurisdiction of a criminal court to
try any offence triable by such court.

(5) When a person subject to this Ordinance is sentenced by a naval tribunal to imprisonment,
this Ordinance shan apply to him during the term of his sentence, though he is dismissed from the
servi~ or has otherwise ceased to be subject to this Ordinance, and he may be kept, removed,
imprisoned and punished as if he has continued to be subject to the Ordinance.

(6) When a person subject to this Ordinance is sentenced by a naval tribunal to death,
this Ordinance shall apply to him till the sentence is carried out.

NOTES

1. This Section meets the case of a person who commits an offence against the Ordinance whilst
subject to it and then ceases to be so subject. It applies where a charge is made that an offence has
been committed, even if it eventually transpires that the accused was innocent. Such cases will
occur, for example, when an officer resigns his commission or is dismissed, or when a Sailor is
discharged from the service or when a civilian who became subject to the Ordinance under
section 2 (2) (c) has ceased to be so subject such a person who has ceased to be subject to naval
law even before the discovery of the offence, may be arrested, tried and punished just as he were
still so subject. The trial of such a person, however, must commence within six months of his
ceasing to be subject to the Ordinance, Exception is made in the case of desertion, fraudulent
enrolment and the offences relating to mutiny. As regards fraudulent enrolment, however, see
note 3 to section l05.

2. As to the date on which a sentence of dismissal takes effect, see rule 247. A person so
sentenced who commits another offence between the trial and the date on which his dismissal
takes effect can be tried for it under this section after that date.

107. Concurrent jurisdiction of naval tribunal and criminal court.-(l) When a

criminal court and naval tribunal both have jurisdiction in respect of a civil offence, ( it shall be in
the discretion of the prescribed naval authority to decide whether the proceedings shall be
instituted before the court or tribunal and if that authority decides that they shall be instituted
before a naval tribunal, to direct that the accused person shall be detained in naval custody.

(2) Where it is decided to institute tl1e -proceedings before a naval tribunal under sub-section
(l) but the criminal court is of the opinion that proceedings ought to be instituted before itself, it
may by written notice require the prescribed naval authority to postpone the proceedings pending
the determination of the matter by the Government, and thereupon the proceedings shall be so
postponed.

(3) On receiving a notice under sub-section (2) the said authority shall, unless upon
reconsideration it agrees that the proceedings shall be instituted before the criminal court,
forthwith refer the matter to the Government whose decision thereupon shall be final.

NOTES

Prescribed officer.-See rules 250 and 286. As to the consideration which should be kept in view
deciding weather the accused should be tried by a naval tribunal or by a criminal court, see rule
251.

108. Prohibition of second trial.-(1) where a person subject to this Ordinance is

acquitted or convicted of an Offence on trial by a naval tribunal, a criminal court or a naval
tribunal shall be debarred from trying him subsequently for the same Offence.

(2) Where a person subject to this Ordinance is acquitted or convicted of any offence on
trial by a criminal court, he shall not subsequently be tried under this Ordinance for the same
Offence; and no person shall so convicted shall, by reason of such conviction, be subjected

to any loss or forfeiture of seniority or of rank, of privilege in respect of leave, or of pay or

service (other than pay and service in respect of time spent in civil custody pending trial, or while
attending his trial, or while serving any sentence of imprisonment, awarded by the criminal
court):

Provided that nothing in this sub-section shall affect the power to discharge any person from
the naval service as a person whose services are no longer required.

NOTES

1. It is a general principle of law that it does not permit a man to be tried twice in
respect of the same offence, see section 26 of the General Clauses Act and section 403 of the
Code of Criminal Procedure.
 2. The application of this principle, however, is not always easy. Where the same
incident, or set of incidents, gives rise to two trials, the test of whether the offence is the same
offence would appear to be this: Could the accused have been lawfully convicted at the first trial
upon the charge sheet then before the court of the offence charged at the second trial? If so, the
second trial is illegal and void.

3. A finding of a court-martial, if not confirmed, is of no validity; in such case,

therefore, the accused has not been acquitted or convicted and may legally be tried again; see
section 130 (3; but re-trials should rarely be resorted to, and only when the needs of discipline
and justice demand that an offender shall not escape punishment on account of a legal
technicality.

4. Where a court is not legally constituted, as for example, if the convening order is not
signed, or is signed by an officer not authorised to convene such a court; or if the court is
composed of members less in number than the legal minimum required by section 99; or if
unqualified officers sit; it is no court at all. The accused will not have been really tried, and may
be tried again, even though the proceedings of such illegally constituted court have been
inadvertently confirmed. See also notes to section 140.

Where, however, a conviction is confirmed and then quashed, not for improper constitution
of the court, but because evidence was improperly admitted, the accused has stood a trial and
cannot be tried again.

5. Where a new trial is ordered, an officer may serve on it who sat on the former court;
see rule 133 (2) (e).
 CHAPTER XI
PROCEDURE OF COURT MARTIAL

109. Objections.-(1) At all trials by court-martial, as soon as the court is assembled, the
names of the president and members shall, be read over in the presence of the accused, who shall
thereupon be asked whether he objects to being tried by any officer sitting on the court.

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

(3) If objection is made in respect of the president, and allowed by one-half or more of
the officers entitled to vote, the court shall adjourn until a new president is appointed by the
convening authority.

(4) If the objection is made in respect of any member of the court other than the
president and allowed as specified above, the member objected to shall retire, and his vacancy
shall be filled by the first officer nominated as a spare member, under Sub-Section (2) of section
99 who is qualified to be and is not already a member of the court.

(5) When no objection is made, or objection made has been disallowed, or the place of every
officer successfully objected to has been filled by another officer to whom no objection is made,
or objection made is disallowed, the court shall proceed with the trial.

NOTES
1. As to challenges generally, see rule 138 and notes there under.

2. As to adjourning for the purpose or appointing fresh members and the power to convene
another court, see rule 132 and notes, there under.

3. As to the right of the accused to object to the members of the court is being sworn to
try several persons, see rule 184 and notes there under.

110. Administration of oath.-(l) An oath or affirmation in the prescribed form shall be

administered in open court to every member of every court-martial and to the judge advocate, if
any, before the commencement of the trial.

(2) An oath or affirmation in the prescribed form shall be administered in open court to every
officer, if any, in attendance on a court-martial for the purpose of instruction, and also to every
shorthand writer or interpreter, if any.
 .

(3) Every person giving evidence before a court-martial shall be examined after being duly
sworn or affirmed in the prescribed form;

Provided that where a court-martial is satisfied that a child of tender years is unable to
understand the nature of an oath or affirmation, it may dispense with the administration of oath or
affirmation.

NOTES

1. The prescribed forms of oath and affirmation required to be administered under this section
are given in the Fourth Appendix to the rules.

2. The oath or affirmation by the members of a court-martial binds them to try the accused
"according to the evidence" discarding from their opinions any private feeling or information the,
may happen to possess: and to "administer justice, without partiality, favour or affection"

3. The oath taken by members also implies that, as a general rule, the opinions of the invidual
members ought not to be stated and consequently the court ought not to disclose whether the
decision was unanimous or by a majority: the decision is the decision of the court as a whole and
the effect of its being unanimous or not is usually immaterial but see the proviso to section 111
(1)

4. As to the officer empowered to administer oaths or affirmation and the mode of doing so,
see rules 139 and 140.

111. Voting by members.-(l) 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:

Provided that no sentence of death shall be passed without the concurrence, in the case of a
general court-martial of at least two-thirds of the members, and in the case of a summary general
court-martial of all the members of the court.
 (2) In matters other than an objection under section 109 or a finding a sentence, the president
shall have a second or casting vote

NOTES

As to manner of voting generally, - see rule 182. As regards voting in respect of finding, see rule
154 (2).

112. Power to convict of mitigated offence. Where higher punishment for any offence
under this Ordinance depends, upon the intent with which or the circumstances in which the
offender acts, and any person is charged with committing that offence with such intent or in such
circumstances, he may be found guilty of committing that offence without such intent or
circumstances and awarded lower punishment.

NOTES

1. The object of this section is to prevent a miscarriage of justice by permitting a person to be

found guilty of a lesser offence, when the graver offence with which he is charged is not
established. This is possible only in cases where .the higher punishment for any offence under the
Ordinance depends upon the intention with which the accused acted, or the circumstances in
which he committed the act. For example, see sections 29, 30, 31, 32, 33, 36, 37, 41, 46, 49, SO,
59 and 62.

2. Alternative charges should not be preferred in cases where a conviction for the lesser offence
is permissible under the provision of this section.

113. Power to convict of alternative offence charged.-(l) Where a person is charged with an
offence 1iDder any provision of this Ordinance other than sections 78 and 79 but the offence is
not proved, he may be ground guilty of-

(a) an attempt or abetment to commit the offence charged or;

(b) an offence of the same class as the offence charged and not involving greater punishment.

(2) Where a person is charged with a civil offence under sections 78 and 79 but that offence is
not proved, he may be found guilty and convicted of any other civil offence of which he could be
found guilty and convicted by a criminal court in a trial for the same offence as he is charged
with. .

NOTES
1. Attempt to commit 08'eaoe.-See section 511 P.C.
2. Abetment-See section 107 and 108' P.C.
3. Punishments for attempts to commit naval offences and for abetment of such Offences are
laid down in sections 76 and 77 respectively.

4. Offence of the same class as the offence charged.- sections 29 to 65, dealing with the
offences are divided into 11 different classes and a person, charged under one of the sections of a
particular class may be found guilty of an offence under another section of the same class and not
involving greater punishment:-for example a person charged under section 46 with desertion may
be found not guilty of desertion but guilty of absence without leave under section 47, or a person
charged with anyone of the offences specified in section 63 may be found guilty of any other of
these offences with which he might have been charged as all these offences are of the same class
and none of them involves greater punishment than the others.

5. Sub section (2)-For the special findings in respect of civil offences, see sections 237 and
238 of the Code of. Criminal Procedure.

6. A court-martial has no power to find a person guilty of any offence other than that with
which he is charged in the statement of the offence except in cases which are covered by this
section. A court may, however, as allowed by rule ISS (5), find a person guilty of a charge with
the exception of certain words, in the particulars of the charge or with certain immaterial
variations, and each finding win be valid as long as in its reduce4 or varied form it discloses the
offence which forms the subject of that charge.

114. General rules as to evidence,-Subject to the provisions of this Ordinance, the rules of
evidence generally followed in criminal courts shall apply to proceedings before a court-martial.

NOTES

1. Subject to the provision or this ordinance-See for example, sections 115 to 122.
 2. The section makes all statutes relating to evidence which are followed in criminal courts
applicable to naval 'court-martial e.g. The Evidence Act 1872 and the Bankers Books Evidence
Act, 1891.

3. It must be noted that a court-martial is not permitted to receive any evidence for the
prosecution which is not relevant to the facts stated in the charge, or any evidence which is not
admissible either under the Evidence Act 1872. or under the Ordinance, or under any other law;
(rule 204).

115. Judicial notice,-A court-martial shall take judicial notice of any matter generally within
the knowledge of its members as officers of the navy.

NOTES

Judicial notice means that the court will recognise a matter without formal evidence. Thus
evidence need not be given as to the relevant rank of officers, as to the general duties, authorities,
and obligations of different members of the service or generally as to any matters which an
officer, as such, may reasonably be expected to know. For other- matters of which a court may,
under the Evidence Act, take judicial notice, see sections 56 and 57 of the Evidence Act,

116. Summoning of witnesses. (I) The convening officer, the president of the court, the judge
advocate, or the commanding officer of the accused person may, by Squadrons under his hand,
require the attendance, at a time and place to be mentioned in the summons of any person either
to give evidence or to produce any document or thing.

(2) In the case of a witness, subject to service law 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 may be served in such manner as may be
prescribed or may be sent to the magistrate within whose jurisdiction he may be or resides and
such magistrate shall cause service of the summons as if the witness were required to appear or
produce the document or thing in his own Court.
 (4) When a witness is required to produce any particular document or thing the summons shall
describe it with reasonable precision.

NOTES

1. As to procuring the attendance of witnesses whom the prosecutor or the accused desires to call
at the trial, see rule 208.

2. Civilian witness can be required to attend at a summary trial by summons under the hand of
the commanding officer of the accused; rule 50 (7).

For form of summons to attend at a summary trial or a court-martial, see Fourth Appendix to the
rules.

3. Witnesses who are subject to the Ordinance should be ordered by the Proper naval authority
to attend without the issue. of formal summons, If a witness so subject then makes default he may
be dealt with under section 73 (1) (a), for failing to comply with the order. A formal summons
should; however-be issued to witness sub.- ct to military or air force law, through their
commanding officers.

4. For action where a civilian witness, who has been duly summoned whose and

5. As . to privilege from arrest under civil or "revenue process of a witness summoned attend
before a court-martial, see section 26.

117. Commission for the examination of witness.-(l) Whenever in the course of a trial by a
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, if it thinks necessary, issue a ;commission, , in the manner specified in Chapter XL of
the Code of Criminal Procedure, 1898 (Act V of 1898), according as the witness resides in a
place in or outside Bangladesh.

(2) The court may be adjourned for a specified time reasonably sufficient for the execution and
return of the commission.
 (3) Such a commission shall be executed by the magistrate or officer, to whom it is issued in
the same manner as if it was issued in the trial of a warrant case under the Code of Criminal
Procedure, expenses have been tendered, makes default in attending, see rule 223 (C). 1898 (Act
V of 1898), or of any corresponding law in force at the place where the evidence is recorded; and
shall be returned, together with the deposition 0 f the witness examined there under to the Judge
Advocate-General.
(4) The Judge Advocate-General will forward the same to the court-martial who issued it or,
if the said court-martial is in the meanwhile, dissolved to another court-martial convened for the
trial of the accused in respect of the same charge and any deposition so taken shall be recorded in
evidence and shall form part of the proceedings of the court.

NOTES

1. Under Chapter XL of the Code of Criminal Procedure the power to issue commissions in
criminal cases is conferred on the High Court, a court of Session and a District Magistrate. This
section confers a similar power on a court-martial to issue commission for the examination of a
witness by means of a series of written questions, decided upon by the court trying the case.
These questions are sent to another court or officer, within the local limits of whose jurisdiction
the witness resides. Any questions which the prosecutor or the accused desire to have put to the
witness, and which the court considers relevant, should be added to the list of such questions.

2. The magistrate or the officer to whom the commission is issued will take down the evidence
of the witness and must return the record of it to the Judge Advocate General of the Navy, who
will forward the same to the court which issued the' commission, or, if that court has in the
meanwhile been dissolved, to another court-martial which may be convened for the trial of the
accused in respect of the same charge. The evidence of the witness, thus obtained on commission,
becomes part of the record of the case.

3. The taking of evidence by commission in criminal trials should be most sparingly resorted to
and ought not to be adopted save in extreme cases of delay, expense or inconvenience. The
following considerations should guide court-martial in this, important matter:

(i) A complainant, or a witness who practically fills the role of complainant should never be
examined on a commission; the risk of injustice to the accused is too great.

(ii) A material prosecution witness, the value of whose evidence can only be made apparent
under full examination and cross-examination in court, should very seldom be so examined. ,

(iii) A merely "formal" or corroborative witness for either side, or a material witness for the
defence, if the accused is fully satisfied by this action, might generally be examined on a
commission. By "formal" is here meant a witness who has to prove a document, entry, or
similar fact, which must be legally proved, but which when so proved cannot rationally be
disputed by the accused, or by the prosecution.
 4. If great delay in the return of a commission is anticipated, it may be more convenient to
dissolve the court-martial and to assemble a fresh court after the commission is returned. In such
a case however; each of the witness who gave evidence at the first trial will be examined as a
witness oath or affirmation at the second trial, unless:,-

(a) he is dead or cannot be found; or

(b) he is incapable of giving evidence: or
(c) he is kept out of the way by the adverse party: or
(d) his presence cannot be obtained without an amount of delay or expense which, under the
circumstances of the case, the court considers unreasonable.

In any of these events the evidence given at the first trial can be read and considered at the second
trial; see section 33 of the Evidence Act.

118. Presumption as to signature.-In, any proceeding under this Ordinance, any application,
certificate, warrant reply or other document purporting to be signed by an officer in the service of
the Republic 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.

NOTES

Purporting.-This expression means that if the ,paper appears to be certified or signed as

mentioned in the section, it can be accepted without calling a witness to prove that it has been so
certified, signed etc., unless indeed some evidence is given to the contrary. If any evidence is
given casting a doubt on the authenticity of a document, the court should require evidence of the
certificate or signature etc., to be given by a witness.

119. Enrolment paper.-(l) Any enrolment paper purporting to be signed by an enrolling

officer shall, in any proceedings under 'this' Ordinance; be evidence that' the person enrolled gave
the answer which he is therein represented to have 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 custody
of the enrolment paper.

NOTES
 1. On the trial of a sailor, on a charge under section 69, for having made a false answer at the
time of enrolment, the answer made by the accused can be proved by the production of his
original enrolment paper. (See form in Appendix VIII to the rules.)

2. The fact of the enrolment, however, may be proved either by producing the original, or a
properly certified true copy of the enrolment paper.

3. In either case the enrolment paper-or when admissible a true Copy thereof must be produced
by a witness on oath or affirmation and the accused identified as the person referred to.

120. Presumption as to certain documents.(I) Where any letter, return or other document
with respect to a person,

(i) having or not having at any time served, in, or been dismissed or discharged from any part
of the armed forces of Bangladesh;

(ii) having, or not having, held any rank or appointment in, or been posted or transferred to any
part of such forces or having or not having served in any particular country or place; or

(iii) being, or not being, a1dhorised to use or wear any military, naval or air force decoration,
medal, medal ribbon, badge wound strip or emblem, the use or wearing of which by an
unauthorised person, is by any law for the time being in force an offence;

purports to have been signed by or on behalf of a Secretary to the Government, or by an officer of

any of the headquarter of the armed forces or by the commanding officer or the officer having the
custody of the records of any portion of those forces or of any ship or establishment of the
Bangladesh Navy to which such person appears or alleges to belong or to have belonged shall be
evidence of the facts stated in such letter, return or other document.

(2) Any army, navy or air force list or gazette purporting to have been published by the
competent authority shall be evidence of the status, rank and appointment of the officer or
warrant officer and also of the unit or branch of the service to which he belongs according as it is
shown in the list or gazette.

(3) Where a record made in any service book in pursuance of this Ordinance or of any rules
made there under or otherwise in pursuance of duty purports to have been signed by the
commanding officer or by the officer whose duty it is to make such record shall be evidence of
the facts therein stated.
 (4) A copy of any record in any service book purporting to have been certified as a true copy
by the officer having the Custody of such Book shall be evidence of such record.

(5) Where any person subject to this Ordinance 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, any officer, or any portion, of the armed forces of Bangladesh, a certificate
purporting to be signed by such officer, or by the commanding officer of that portion of the
armed forces and stating the fact, date and place of such surrender or apprehension, shall be
evidence of the matters S9 stated.

(6) Where any person subject to this Ordinance is being tried on a charge of desertion or of
absence without leave and such person has on arrest or surrender been taken to a police station in
Bangladesh, a certificate purporting to have been signed by the officer-in-charge of that police
station, and stating the fact, date and place of such surrender or apprehension, 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 the Republic upon any matter or thing duly submitted to him for
.examination or analysis and report may be used as evidence in any proceeding under this
,Ordinance.

(8) If it is proved that a person charged with an offence under this Ordinance has absconded
and that there is no immediate prospect of arresting him, the commanding officer or other
prescribed person may: in his absence, examine, any persons will might appear to him to be
acquainted with the case-:and record their depositions on oath and any such composition may on
the arrest of such person be used in evidence against him in any proceeding under this Ordinance,
if the deponent is dead or incapable of giving evidence, or his attendance cannot be procured
without an amount of delay, expense or inconvenience which under the circumstances of the case
would be unreasonable.

1. (i) This section provides for the admissibility in evidence of a variety of documents or
copies of documents used in connection with the administration of the armed forces of
Bangladesh.

(ii) A document purporting to be such a document as is specified in the various sub-sections

is upon mere production on oath or affirmation to the court prima facie evidence of the facts
therein stated.

2. Sub-sections (I) to (7). see note to section 118;

 3. Sub-section (3):-

(i) The sub-section is limited to proof of the facts, or incidents specified therein; it does not
assist proof of other particular incidents occurring during a man's service. A telegram, as
delivered by the telegraph department, respecting the service of a person is not signed at all
and would not be admissible.

(ii) The words "service book" are very wide and include any official books, records whatever
which are required to be maintained by the navy.

(iii) It should be noted that every entry in a service book is not made evidence under the
Sub-section. The entry must be made for the purpose of being used as a record, and must
be made in pursuance or this Ordinance or of any rules made there under or in pursuance
of duty, and it must purport to be signed by the commanding officer or by the officer
whose duty it is to make the record. No hard and fast rule can be laid down as to what
entries can properly be considered as "records", but as a general rule the sub-section
should only be taken advantage of m cases where a formal record, prima facie of a
noncontroversial character, is made in a service book or record in pursuance of the
Ordinance or rules or of naval duty and purporting to be signed in accordance with the
sub-section. Entries which cannot properly be considered as records such as daily entries
in accounts, arid entries in books not being "service books", can, of course, be proved
under the ordinary provisions or the Evidence Act.

4. Sub section (4):-

(i) Such a copy C8Jinot be certified by another officer "for" the officer having the
custody of the book.
(ii) Where a certified true copy of a record in any "service book" is to be produced, the
Copy should clearly that the record purports to have been ,signed by the commanding,
officer or by the ,officer whose duty it was to make the record.

5. Sub section (5) and (6).-The certificate should only state the fact, date and place of the
surrender or apprehension; it can only be admitted, as evidence of those facts and then' only in
cases of desertion or absence without leave. It is necessary to prove the circumstances of the
surrender or apprehension a witness must be called.

6. Under sub-section (6).-It is essential that the certificate should be actually signed by a
police officer not below the rank of officer in charge of a police station.
 7. Sub-section (8):
(i) This provision is similar to one contained in section 512 (1) of the Code of, Criminal
Procedure before the commanding officer (or other prescribed person) examines any
persons who might appear to him to be acquainted with the case, he must record some
evidence which proves to his satisfaction:
(a) that the person charged with an offence under the Ordinance has absconded; and
(b) that there is no immediate prospect of arresting him. He should then record an order
that in his opinion it has been Proved that the accused hat absconded and them is no
immediate, prospect of his arrest.
(ii) The deposition of a witness recorded, in respect of the facts of the case although recorded
in the absence of the absconding accused, can be offered as evidence at his trial in three
cases:

(a) If the witness is dead;

(b) if he is incapable of giving evidence; or
(c) if his attendance at the trial would cause unreasonable delay, expense or
inconvenience.
121. Reference by accused-to Government officer:-(1) H at any trial, or other proceedings
for desertion or absence without leave, the accused states in his defence any sufficient or
reasonable excuse for his unauthorise absence, and refers in support thereof to any officer in the
service of the Republic or if it appears that any such officer is likely to prove or disprove the said
statement in the defence, the court or officer conducting the proceedings shall address such
officer and adjourn the court or proceedings until his reply is received.
(2) The written reply of any officer so .addressed shall, if signed by him be received in
evidence and have the same effect if made on oath before the court or officer conducting the
proceedings.
(3) If the court-martial is dissolved before receipt of such reply or if it omits to comply with
the provisions of this section, the convening officer may, at his discretion, annul the proceedings
and order a fresh trial by the same or another court-martial.
NOTES

1. Officer in this section is not confined only to a person holding a commission in the Navy,
as defined in section 4 (xxvii), but as the context shows it means any officer, civil or military, In
the service of the Government.

2. For presumption as to an officer's signature, See section 118 and the note thereto.

122. Evidence of previous conviction and general character.-(l) When any person subject
to this Ordinance has been convicted by a court-martial of any offence, such court-martial may
inquire into, and receive and record evidence of any previous conviction of such person, either by
a court-martial held under this Ordinance or under any other enactment, or by a criminal court, or
of any previous award of punishment under sections 102 and 103 (to such extent as may be
prescribed), 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 service 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.

NOTE
This section should be read with rule 157 which prescribes other matters which may be proved.

123. Lunacy or accused.-(l) 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 president of the court shall forthwith report the case to the confirming officer.

(3) The confirming officer to whom a 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) The 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 Government.

(5) On receipt of a report under sub-section (4) the Government may order the accused person
to be detained in a lunatic asylum or other suitable place of safe custody.

NOTES

1. 'Finding' of Insanity.- The manner of recording a finding of insanity is given in the form of
proceedings of a general (or district) court-martial, under sub-head FINDING in the Fourth
Appendix to the rules.

2. It is to be observed that two distinct cases are contemplated by this section. A person may
have been sane at the time of the alleged offence but may not be sane enough to make his defence
at the time of his trial. On the other hand, Ii man who was insane at the time of the offence may
have recovered sufficiently to take his trial. In both cases the finding of the court requires
confirmation. The proceedings, after the finding has been duly signed by the president, and the
judge-advocate, if any, must be at once transmitted to the confirming officer: see rule 217.

3. An application that the accused is of unsound mind and consequently incapable of making
his defence should be made before arraignment. The application will normally be made by
counsel for the defence or defending officer, but should, if necessary, be made by the prosecutor.
Evidence in support of the application may, of Course, be given.

4. Where a Court-martialing that an accused person committed the act, (or made the
omission) alleged as constituting the offence but was, by reason of unsoundness of mind,
incapable of knowing the nature of the act or that it was wrong or contrary to law, such finding
does not amount to a conviction,. (see P.C. section 84), but means that on the facts proved the
court would have found him guilty of the offence had it not been established to their satisfaction
that the accused at the time was not responsible for his actions. If such a finding is recorded, no
pay and allowances are forfeited automatically under section 82(b) of the Ordinance and Pay and
Allowance Regulations, e.g. in respect of the period during which the accused was in custody
awaiting trial.

5. Sub-section (4).-As to the "prescribed manner" in which an accused person is to be kept

in custody, see rule 287.

6. Sub section (5).- "Other suitable place of safe custody". This would normally be a civil
jail, if it is not a lunatic asylum.

124. Subsequent fitness or 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 123, the officer commanding the ship or naval
establishment 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 123, on the report of
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 123, 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 l for the offence with which he was originally charged
or if the offence is a civil offence by a criminal court.

NOTE

The certificate referred to in clause (b) is a certificate, in the case of a .person detained in a
lunatic asylum, by the visitors of such asylum or any two of them, or, in the case of a person
detained in jail, by the Inspection: General of Prisons, to the effect that, in their or his opinion,
such person is capable of making his defence.

125. Transmission to Government of orders under section 124.- A copy of every order
made3 by an officer under section 124 for the trial of the accused person shall forthwith be sent to
the Government.

126. Release of Iunatic accused.-Where any, person is in custody under sub-section (4) of
section 123, 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 124

that, in the judgment of such officer or authority such person may by released without danger of
his doing injury to himself or to any other person, the 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.

127. Delivery of lunatic accused to relatives.-Where any relative or friend of any person,
who is in custody under sub-section (4) of section 123 or under detention under; sub-section (5)
of that , section, desires that he should be delivered to his care and custody, the Government may,
upon application by such relative or friood.aJ1d ' on his giving security to the satisfaction of the
Government that the person delivered shall.
 (a) be properly taken care of and prevented from doing injury to himself or to any other
person ; and

(b) be produced for the inspection of such authority, and at such times and places, as the
Government may direct, , order such person to be delivered to such relative or friend.

128. Order for custody and disposal of property penc1ing 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 natura1 decay, may, after
recording such evidence as it thinks necessary, order to it be sold or otherwise disposed of.

NOTE

The provisions of section 128 shall also apply to case property produced before an Officer
carrying out the "Summary trial"

129. Order for disposal of property regarding which offence is committed. (1) After the
conclusion of a trial before a court-martial, the court or the officer confirming the finding or
sentence of such court-martial or any authority superior to such officer, make such order as it or
he thinks fit for the disposal by destruction, confiscation delivery to any person c1aiming to be
entitled to possession thereof or any property or document produced before the court or in its
custody, or regarding whic1i any offence 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 (I) 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 Bangladesh or not, be sent
to a magistrate in any district in which such property for the time being is, and such magistrate
shall thereupon cause the order to be carried into effect as if it was an order passed by such
magistrate under the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898).

Explanation.-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 which the
same may have been converted or exchanged and anything acquired by such conversion or
exchange whether immediately or otherwise;

NOTES

1. The commanding officer carrying out the Summary trial of a sailor shall be competent to
pass an order for the destruction, confiscation, disposal ete. of a property produced in the case
before him. If such an offender is punished by a warrant, requiring the approval of the
administrative authority such an order regarding property shall also require his approval similarly
an administrative authority, trying summarily an officer, shall be competent to pass orders in
respect of case property:

2. The stealing or misappropriation of property does not alter the ownership, and therefore
prima facie the person from whom property has been stolen or misappropriated is the lawful
owner of it, and can recover it from the holder.

3. When stolen property has not been recovered the value of the property should be stated in
particulars of the charge and proved in evidence Penal deductions may then be, awarded to,
recoup the owner. In case of theft followed by sale to an innocent purchaser, penal deductions
may be awarded to recoup the purchaser on a charge of theft, provided that the charge contains
and additional averment informing the accused of the further liability he has incurred in respect of
the innocent purchaser.

4. For the manner of recording a sentence of penal deductions, see form of proceedings of a
general (or district) court-martial, under subhead SENTENCE, in the Fourth Appendix to the
rules.
 CHAPTER XII

CONFIRMATION, REVISION AND REVIEW

130. Confirmation of finding and sentence.-(l) At the conclusion of a trial by court-martial,
the finding and the sentence, if any, of the court shall be signed by the president and the judge
advocate, if any, but they shall not be promulgated until have been confirmed.

(2) The president of the court shall forward the proceedings of the court to the convening
authority, who may confirm the same or transmit them for confirmation to a superior authority, if
so directed by the warrant empowering him to convene the court.

(3) No finding or sentence of a court-martial shall be valid unless and except to the extent to
which it is confirmed in accordance with the provisions of this Ordinance and the rules.

NOTES

1. Confirmation is complete when the proceedings are promulgated. If proceedings are

confirmed in error by an officer not having power to confirm, his act and the subsequent
promulgation are null and void and it is open to the proper authority to confirm.

2. The result of sub-section (3) is that if a finding is not confirmed it is invalid; consequently
there is no conviction or acquittal, and the accused has not been convicted or acquitted by a court-
martial for the purpose either of any subsequent trial or of any entry in service books or of any
forfeiture. See section 108 and notes thereto. As to cases in which confirmation ought to be
withheld see notes to section 131.

131. Power of confirming authority.-The confirming authority may order that the finding and
the sentence of the court,-

(a) be confirmed

(i) as passed by the court, or

(ii) subject to such mitigation, remission or commutation of the sentence as specified

hereinafter;
 (b) be returned to the court once for revision, as specified hereinafter, prior to their being
confirmed; or

(c) be not confirmed.

NOTES

1. Confirmation of the sentence alone implies confirmation of the finding also, but it is not the
correct mode of recording confirmation. The correct form of recording the minute of confirmation
is given in the form of proceedings of a general (or district) court-martial, under sub-head
CONFIRMATION, in the fourth Appendix to the rules,

2. In the following cases proceedings of a court-martial, ought NOT to be confirmed:

(i) Where the provisions of this Ordinance relating to jurisdiction have been contravened.
See sections 96 to 101, 109 and 110.

(ii) Where evidence of a nature prejudicial to the accused has been wrongly admitted.

(iii) Where the accused has been unduly restricted in his defence.
 (iv) Where a finding of guilty has come to with the exception of certain words of the charge
and these words so far describe the essence of the offence that the finding with the words
omitted fails to disclose of which the court could legally have convicted.

(v) where a special finding of guilty fails to disclose an offence of which the court could
legally have convicted.

(vi) Where the charge is bad in law, even though the accused has pleaded guilty.

(vii) Where there has been such a deviation from the rules made under this Ordinance that
injustice has been done to the accused.

132. Power of confirming authority to mitigate, remit or commute sentences.-A

confirming authority may, when confirming the sentence- of a court-martial, mitigate or remit the
punishment there by awarded, or commute that punishment for any punishments or punishments
lower in the scale as laid down in this Ordinance:

Provided that sentence of imprisonment shall not be commuted to a sentence of detention for
a term exceeding the term of imprisonment awarded by the court.

NOTES

1. As to mitigation of sentence for offence in several charges, where the finding on one or
more of them is not confirmed, see rule 164; and as to the power of confirming officer to vary a
sentence informally expressed or in excess of the punishment authorised by law, see rule 165.

2. The powers conferred by this section may be exercised by the confirming officer, as such,
only before confirming the sentence. After the confirmation, the power of the confirming officer
in that capacity ceases and the above powers can only be exercised by one of the authorities
mentioned in section 153.

3. A confirming officer may also, under section 156, direct that an offender sentenced to
imprisonment or detention be not committed to prison or custody until the orders of a superior
naval authority mentioned in section 155 are obtained. If he is himself a superior naval authority
he has further power as such under that section.
 4. Mitigation is awarding a less amount of the same species of punishment, as for example, by
reducing the length of imprisonment detention to which an offender has been sentenced: it is in
effect equivalent to a remission of part of the sentence.
5. Remission may be remission of the whole or of part of the sentence; thus a sentence of
.imprisonment or detention may be remitted altogether, or a portion of the term may be remitted.
.
6. Commutation is changing the description of punishment by awarding a punishment, or
lower in the scale of punishments in section 80, as detention fn lieu of imprisonment, or forfeiture
of seniority in rank in the case of an officer in lieu of dismissal from the service.
7. Or punishments.- The commutation of one punishment for two or more punishments is
permissible but partial commutation of anyone punishment by, the substitution for a portion
thereof of another punishment is illesa1 thus where in a case of e.g. losing Government property
(Udder section 65) a court passed a e of imprisonment, but omitted to pass a sentence of penal
deductions, which would have been valid; a portion of the imprisonment cannot be commuted to
penal deductions. However the confirming authority may refer the sentence to the court for
revision, see Section. 133.
8. The imprisonment or detention, under commutation, will be reckoned to commence on the
date of the original sentence, even though that sentence was not one of imprisonment or
detention, as the case may be. For instance, the court sentenced a sailor to dismissal from the
service but the confirming authority commuted that sentence to one of detention for three months.
The period of three months will could from the date when the original sentence was signed by the
president of the court (section 142) and not from the date when it was commuted by the
confirming authority.

133. Power of confirming authority to return the finding and sentence to the court for
revision. (1) Any finding or sentence of a court-martial may be revised by it by order of the
confirming authority but only once; and in the course of such revision, the court, if so directed by
the confirming authority, may take additional evidence.

(2) Except for the unavoidable absence of any of its members the court, sitting in revision,
shall consist of the same members as were presence at the time of arriving at the finding or
passing the sentence.
(3) In the case of unavoidable absence of any of its members the Cause whereof shall be duly
recorded in the proceedings, the court shall proceed with the revision, unless -the president
himself is absent or the number of members present is less than the minimum required to
constitute the court under section 99 in which case the court shall be dissolved and the accused
may be tried by a court-martial constituted afresh.

NOTE
As to the procedure on revision, see rule 162 and notes thereto.

134. Remedy against an order of court-martial before confirmation of finding or

sentence.-(l) Any person subject to this Ordinance who considers himself aggrieved by any order
passed by a court- martial may at the conclusion of the trial and before confirmation of the
finding or sentence, present a petition to the confirming authority .
 (2) Before confirming any finding or sentence of a court-martial, the confirming authority
shall take such steps as it considers necessary to satisfy itself of the correctness, legality and
propriety of the order passed and of the regularity of the proceedings in which it was passed.

NOTES

1. This section provides remedy against the finding and sentence of a court martial, before
confirmation while section 136 provides the remedy after confirmation.

2. As to the powers of the confirming authority, see section 131 and notes thereto.

135. Review by the Government or the Chief of Naval Staff of finding and sentence.-Any
finding of guilty and any sentence awarded by a court-martial in respect of such a finding may be
reviewed by the Government or the Chief of Naval Staff at any time.

NOTES

1. This section empowers the Government or the Chief of Naval Staff 10 review, at any time
any finding of guilty and any sentence of a court-martial whether or not any petition for review
has been submitted.

2. On review, the Government or the Chief of Naval Staff may:

(a) under section 137, quash or alter the finding;

(b) under section 138 annul, remit or commute the sentence; or substitute a
valid sentence for an invalid sentence;
(c) under section 153 pardon the person concerned, or mitigate or commute the punishment
awarded; or
(d) under section 155 suspend any sentence of imprisonment or detention, whether or
not the offender has already been committed 10 prison or custody.

3. The word "or" appearing in between the expressions "the Government" and "The Chief of
Naval Staff under section 135 to 138 is disjunctive. Remedies provided for in these sections
cannot be again availed of if one of the authorities has pronounced judgment on them. These
Sections do not contemplate presentation of successive review petitions 10 the Chief of Naval
Staff and to the Government but contemplate only one such petition either to the Government or
to the Chief of Naval Staff. In exercise of such revisional jurisdiction either the Government or
the Chief of Naval Staff may set aside the conviction as well as the sentence. The review petition
of the convicted person having been rejected by the Chief of Naval Staff, there can be no further
review of the petition by the Government under these Sections.

136. Remedy of aggrieved persons, on being convicted by a court-martial.-Without-

prejudice to the provisions of the foregoing section, a person convicted under this Ordinance by a
court-martial may at any time present a petition against the finding or the sentence or both to the
Government or the Chief of Naval Staff who may thereupon review the finding or the sentence or
both.

NOTE

See notes to sections 134 and 135.

137. Power to quash or alter findings.-(I) On review of a finding of a court-martial, the

Government or the Chief of Naval Staff may,-

(a) in any case, quash the finding;

(b) where some other finding of guilty could lawfully have been made by the court before
which the trial took place, and it appears to the Government or the Chief of Naval Staff that
court must have been satisfied of facts necessary to justify that other finding, substitute that
other finding.

(2) Where a finding is quashed under sub-section (I), then

(a) if the sentence passed in respect of that finding relates to that finding only, the sentence
shall i.e. quashed;

(b) if the sentence relates to that and any other finding or finding or the Government or the
Chief of Naval Staff may substitute such sentence as is authorised by this Ordinance in
respect of the other finding or findings.

(3) Where a finding is substituted under sub-section (I) the sentence may be substituted by
any other sentence provided by this Ordinance in respect of the substituted finding.

(4) The punishment awarded by a sentence substituted under sub-section (2) or sub-section (3)
shall not be higher in the scale of punishments than, or in excess of the punishment awarded by
the sentence for which the new sentence is substituted.
 (5) Any finding or sentence substituted under the preceding sub-section shall for all purposes
be deemed to be the finding or sentence of the court before which the trial took place.

NOTE

See note 3 to section 135.

138. Power to remit or alter sentences.-(l) On the review of a sentence awarded by a court-
martial, the Government or the Chief of Naval Staff may, subject to the provisions of this section,

(a) annul the sentence;

(b) remit the sentence in whole or in part;
(c) commute the sentence for any other provided by this Ordinance; or
(d) if the sentence is for any reason invalid, substitute such other sentence as could be
awarded under this Ordinance in respect of the relevant finding, or findings.

(2) The punishment awarded by a sentence effective after commutation or substitution under
sub-section (I) shall not be higher in the scale of punishments than or in excess of, the punishment
awarded by the sentence which is commuted or for which the new sentence is substituted.

(3) Any sentence effective after remission, commutation or substitution under sub-section (I),
shall for all purposes be deemed to be the sentence of the court before which the trial took place.

NOTE

See note 3 to section 135

139. Saving of factions of Judge Advocate-General.-Nothing in this Chapter shall affect the
powers and functions of the Judge Advocate:-General in relation to the naval tribunals including
his functions of considering and reporting on the proceedings of such tribunals.

NOTE
Judge Advocate-General, see section 4 (xiv).
 140. Bar of Appeals.-No court shall question the correctness, legality or propriety of any
proceeding, order, finding or sentence of any naval tribunal, and no appeal, revision or other
remedy shall lie in respect of any such proceeding, order, finding or sentence save in accordance
with the provisions of this Ordinance.

NOTE

According to this section, no appeal, revision or other remedy shall lie to any court in respect
of any proceeding, order, finding or sentence of a courtmartia1. Any court would, include the
Supreme Court and the High Court. The only remedy of a person aggrieved, on conviction by a
court-martial, would lie, "in accordance with the provisions of this Ordinance", e.g. by a

petition for review under section 136.

CHAPTER XIII
EXECUTION OF SENTENCES
141. 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.
NOTES

1. No sentence of death can be passed by a general court-martial unless at least two-thirds of

its members concur or by a summary general court-martial unless all the members concur. If
therefore, a general court-martial consists only of five members, it is essential that not less than
four of them should concur in the sentence; see proviso to section 111 (I).

2. Normally a sentence of death against the accused should be directed to be carried out by
being hanged by the neck until he be dead but on active service it may not be convenient for
arrangements to be made for hanging an offender. In such circumstances the court-martial should
direct that the accused shall ''suffer death by being shot to death". The sentence can then be
carried into effect by the provost marshal in exercise of his powers under section 94 (3).

142. Commencement of sentence of imprisonment or detention.-The term of a sentence of

imprisonment or detention under this Ordinance, whether the sentence has been revised or not,
shall be reckoned as commencing on the day on which the sentence is signed by the president of
the court-martial or the officer trying the case.
NOTES

1. A term of Imprisonment or detention awarded by way of commutation must commence on

the date of the original sentence even though such sentence was one of a different character.
 2. The suspension of a sentence of imprisonment or detention has no effect on its currency; see
section 158.

3. It is essential that the proceedings be dated as well as signed.

143. Execution of sentence of imprisonment.-The officer who confirms the sentence or

such other officer as may be prescribed, may direct that the sentence of imprisonment in any
particular case shall be carried out by confinement in a civil prison or by confinement in a
military, naval or air force prison, and the commanding officer of the person under sentence or
sum other officer as may be prescribed, shall forward a warrant in the prescribed form to the
officer in charge of the prison in which the person is to be confined, and shall forward him to
such prison with the Warrant:

Provided that in the case of a sentence of imprisonment for a period not exceeding three
months, the sentence may be directed to be carried out, by confinement in naval custody instead
of a prison;

Provided further that on active service a sentence of imprisonment may be carried out by
confinement in such place as the officer commanding the naval forces may from time to time
appoint.

NOTES

1. A sentence awarded by a court-martial is inoperative until confirmed; see section 130 (3);
action in respect of such sentence cannot, therefore, be taken under this section before
confirmation. Until promulgation bas been effected, confirmation is not complete; see rule 168.

2. Officer prescribed is the confirming officer or any higher authority see rule 288.

3. Prescribed form of warrant. See Fifth Appendix to the rules. Forms G and H. Where
Sentence of death is commuted to imprisonment form D is Section 4 (iv).

5. Sentences of imprisonment combined with dismissal should as a rule, be carried out by

confinement in a civil prison. Sentences of imprisonment not exceeding three months, to which
no dismissal has been added, should be out by confinement in naval custody. For "naval custody"
see section 4 (xvii).
 6. The direction of the confirming officer that the sentence shall be undergone in naval custody
should be part of the confirmation minute, (See the form of recorded the minute liven in the form
of proceeding of a general (or district) court-martial under sub-bead CONFIRMATION, in the
Fourth Appendix to the rules.]

7. Under the second provision active service, the officer commanding the naval comes may
appoint any convenient place for a sentence of imprisonment be carried out.

144. Execution of sentence of detention.-A sentence of detention under this Ordinance shall
be carried out by detaining the offender in any, military, naval or air force detention barracks
detention cells or other military, naval or air force custody, and when' the Sentence is to he
carried out by detention in any military naval or air force detention barracks, the commanding
officer of the person under sentence, or such other officer as may be prescribed, shall forward the
person under sentence together with a warrant in the prescribed form, to the officer in charge of
the said detention barracks.

NOTES
1. A sentence of detention must not be directed to be carried out in a civil prison. If there arc
no detention barracks or detention cells, the sentence must be carried out in naval custody, when
the following routine shall be followed;

(a) for the first 14 days of the sentence of detention; the offender shall carry out the
routines for the punishment of solitary confinement in a cell as laid down in Rule 91.

(b) the routine for the remaining period shall be relaxed so that although the offender is to be
confined in a cell, he is no longer to be kept in solitary confinement. If, however, the
offender's conduct or behaviour becomes objectionable the Commanding officer of the
establishment in which the offender is undergoing the punishment may at his discretion direct
that the offender be again kept in solitary confinement for a period not exceeding 7 days at a
time.

(c) in partial relaxation of sub-rule 3 of the above rule, the offender after the first 14 days
shall be brought on deck under the sentry's charge and made to carry out hard labour with
working parties or individual task out of which instructions may be given for not more than
two hours. The total period for work shall not exceed seven hours per day.

2. For committing a prisoner to a military, naval or air force detention barracks, Form H in
the Fifth Appendix to the rules may be used with the necessary variations (see rule 4 and section
152).

3. A sentence of rigorous imprisonment which is commuted to one of detention would be a

sentence of detention passed under this Ordinance; see section 138(3). Since a sentence is
inoperative until confirmed, action under this section in respect of such sentence cannot be taken
before confirmation. Until promulgation has been effected, confirmation is not complete; see rule
168.

145. lnterim custody of persons under sentence of death, imprisonment or detention.-(l)

When a person is sentenced by a court-martial to suffer death and the sentence has been
confirmed, the commanding officer of such person, or such officer as may be prescribed may, if
he -thinks fit, by warrant in the prescribed form commit the said person to safe custody in a civil
prison pending the execution of the sentence, and may similarly, by warrant in the prescribed
form direct that the person so committed be re-delivered to naval custody, or that he be released
or confined in accordance with any order duly made under this Ordinance setting aside or varying
the sentence of death.

(2) Any such warrant as aforesaid shall be sufficient authority for the execution of the orders
contained therein.

(3) A person sentenced under this Ordinance to imprisonment or detention may, until he reaches
the prison or detention barracks in which he is to undergo his sentence be kept in naval custody or
in civil custody, or partly in one description of custody and partly in the other and may by order
of such officer as may be prescribed from time to time, be transferred from one to the other as
occasion may require.

NOTE
For the prescribed forms of warrant, see Fifth Appendix to the rules.

146. Authority for committal and transfer of prisoners,- A warrant issued in accordance
with the provisions of section 143 or section 144, or an order of the prescribed officer for the
transfer of a person undergoing a sentence of imprisonment or detention from one description of
custody to another, shall be sufficient authority for committing the person concerned to prison,
detention barrack or naval custody or, as the case may be, for transferring him from one
description if custody to the other.

147. Conveying of prisoners from place to place.-A person under sentence of imprisonment
or detention may, while he is being conveyed from one place to another, or when on board a ship,
aircraft, or other vehicle be subjected to such restraint as is necessary for his safe conduct and
removal.
 148. Communication of certain orders to prison officers. (l) Whenever an order is duly
made under this Ordinance setting aside or varying any sentence, order or warrant under which
any person is confined in a civil, military, naval or air force prison or detained in a military, naval
or air force detention barracks a warrant in accordance with such order shall be forwarded by the
prescribed officer to the officer in-charge of the prison or detention barracks in which such person
is confined.

(2) Any such warrant shall be sufficient authority for the execution of the orders contained
therein.

NOTES

1. See various forms of warrants in Fifth Appendix to the rules. The heading of each of these
forms shows clearly the cases in which it is to be used. Form I is applicable to a case in which a
sentence of imprisonment is varied by superior authority, and Form J in which a prisoner is
pardoned or his trial set aside, or when the whole sentence or the unexpired portion thereof, is
remitted.

These forms may be used for the respective purposes therein mentioned with such variations
as the circumstances of each case may require, see rule 4.

2. Any order made under the Ordinance setting aside or varying any sentence should, after
promulgation be Sent to the Judge Advocate General, for attachment to the court-martial
proceeding, as these are preserved in his department; rule 192

149. Establishment and regulation of naval prisons or detention barracks.-The

Government may set apart any building or part of a building, or any place under its control, as a
naval prison or detention barracks for the confinement of persons sentenced to imprisonment or
detention under this Ordinance.

150. Power to make rules in respect of prisons and prisoners. The Government may make
rules providing:

(a) for the government, management and regulation of naval 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 to earn by special industry and good conduct, a remission of a portion of their
sentence
(d) for the safe custody of such prisoners and the maintenance of discipline among them and
the punishment by personal correction, restraint or otherwise, of offences committed by
them;

(e) for the application to naval prisons or detention barracks of any of the provisions of the
Prisons Act, 1894 (IX of 1894), relating to the duties of officers of prisons;

(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.

151. Restriction of rule-making power in respect of corporal punishment.- Rules made

under section 150 shall not authorize corporal punishment to be inflicted for any offence, nor
render the imprisonment more severe than it is under any law for the time being in force relating
to civil prisons in Bangladesh.

152. Procedural defect or error in the order or warrant.-Confinement of a person

undergoing a sentence of imprisonment or detention under this Ordinance in any place or manner
in which he might be confined under a lawful order or warrant under this Ordinance, shall Dot be
deemed to be illegal only by reason of any procedural defect 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 only such order, warrant or document may be
amended for rectifying such defect or error.

NOTE
Any order, warrant or other document in pursuance of which a person is confined to undergo a
sentence of imprisonment or detention, may be amended for rectifying any procedural defect or
error appearing there in, as long as the order or warrant in question is lawful under the Ordnance.

CHAPTER XIV

PARDONS, REMISSIONS AND SUSPENSION

 153. Pardon and remission.-When any person subject to this Ordinance has been convicted
by a naval tribunal of any offence, the Government, the Chief of Naval Staff or any officer not
below the rank of captain empowered in this behalf by the Chief of Naval Staff may,

(i) either without conditions or upon any conditions which the person sentenced accepts,
pardon the person, or remit the whole or any part of the punishment awarded, or

(ii) mitigate the punishment awarded, or commute, such punishment for any less
punishment or punishments mentioned in this Ordinance:

Provided that a sentence of imprisonment shall not be commuted for a sentence of detention
for a term exceeding the term of imprisonment awarded by the court.

NOTES

1. As to mitigation, remission and commutation of sentence. see notes to section 132: as to

substitution of a valid for an invalid sentence, see: section 138 (I) (d) ; and as to the mitigation of
the sentence when the finding on one of several charges has been found to be invalid, see rule 164
(2).

2. A sentence of dismissal might be remitted on the condition that the person sentenced shall
not receive pay in respect of or count service for any purpose during the period spent under
dismissal. The conditions, if any, must be clearly stated and the written acceptance of the persons
obtained.

Mitigation or commutation cannot be made conditional.

3. A pardon takes away the conviction, and when a pardon has been granted the record of the
conviction must be removed from the pardoned person's conduct sheet and will not be provable
against him should be again tried by court-martial and convicted of any offence.

154. Cancellation of conditional pardon or remission.-If any condition on which a person

has been pardoned of a punishment has been remitted is, in the opinion of the authority which
granted the pardon or remitted the punishment, not fulfilled; such authority may cancel the
pardon or remission, and thereupon the sentence shall be carried into effect as if such pardon had
not been granted or such punishment had not been remitted:
 Provided that in the case of a person sentenced imprisonment or detention such person shall
undergo only the unexpired portion of his sentence.

NOTE

Any order made under this section should, after promulgation, be sent to the Judge Advocate
General for attachment to the court-martial proceedings, as these are preserved in his department:
see rule .192.

155. Suspension of sentence of imprisonment or detention. (1) Where a person subject to this
Ordinance has been sentenced by a court-martial to imprisonment or detention, the Government
or the Chief of Naval Staff, or any officer empowered to convene a general or summary general
court-martial may suspend the sentence whether or not the offender has already been committed
to prison or 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 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, mitigated or commuted.

NOTES

1. Sub-section (1).-(i) Under this sub-section read with section 159, the authority or officer
competent to act can suspend a sentence, or order it into execution and again suspend it etc., at
any time.

(ii) The power conferred by this sub-section is available to such officer or authority, in
addition to their powers of mitigation, remission or commutation of sentence under other
provisions of the Act. see section 162.
 2. Sub-section (2) The authority or officer may, in his discretion, issue a general direction that
DO person sentenced to imprisonment or detention is to be committed to prison or to military
custody, as the case may be, until his orders have been obtained.

3. Sub section (3).-When an authority competent to do so has already mitigated or

commuted a sentence it may still exercise his power to suspend the sentence under sub-section
(1).

156. Orders pending suspension.-A confirming officer or an officer exercising powers of

summary trial may, when a ~son has been sentenced to imprisonment or detention, direct that the
offender be not committed to prison or to custody until the order of the authority or officer
specified in section 155 have been obtained.

NOTES

If the confirming officer is himself empowered to convene a general or summary general

court-martial he need not record a formal direction requiring reference to himself, but may record
his orders of suspension under section 155 (1) forthwith.

The reference by the confirming officer, who is not empowered to act under section 155 (I) must
be made at.1he time of confirming the sentence.

157. Release on suspension.-When a sentence is suspended under section 155, the offender
shall, whether he has been committed to prison or to custody or not, be released forthwith.

158. Commutation of period of suspension.-Any period during which the sentence is under
suspension shall be reckoned as part of the term of such sentence;

NOTE

Suspension of sentence does not affect its continuity. Under section 142, sentence of
imprisonment or detention, whether suspended or not, runs from the date on which the original
proceedings of the court were signed and runs continuously until it expires.
 159. Order after suspension.-The authority or officer specified in section 155 may, at any
time whilst 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.

NOTE
1. See note 1 to section 155.

2. If at the specified periodical review required by section 160, the competent authority
considers that a sentence ought not to remain suspended, he will refer the case to an authority
empowered to act under this section. When an offender is committed to prison to undergo the
unexpired portion of his sentence, the unexpired portion (commuted in accordance with Section
158), should be stated in the committal warrant. As to signing such warrant, see rule 245.

3. The section docs not contemplate the partial remission of the unexpired portion, of the
sentence; the only power of remission under clause (b) is to remit the whole of the unexpired
portion of sentence. Partial remission must, if at all, be effected under section 153.

160. Reconsideration of case after suspension.-(I) 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 155, or by an officer not below the rank of lieutenant
commander duly authorised by the authority or officer specified in section 155.

(2) Where on such reconsideration by the officer so authorised it appears to him that the
conduct of the offender since his conviction has ~ such as to justify a remission of the sentence,
he shall refer the matter to the authority or officer specified, in section 155

NOTES

1. See notes to section 159.

2. Failure to rcconsidC9' a sentence at the proper date bas no effect upon the sentence; it can
be subsequently reconsidered, and a further suspension or a committal may then be ordered.
 3. Officer duly authorised.-Such authorization may be made by a general or special order;
but the officer authorized must not be below the rank of lieutenant commander. It will ordinarily
be convenient to authorise the accused commanding officer in this behalf.

161. Fresh sentence after suspension.-Where an offender, white a sentence on him is

suspended under this Ordinance, is sentenced for any other offence, then:

(a) if the further sentence 'is also suspended under this Ordinance, 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 Ordinance, the offender shall also be committed to prison or naval 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 Ordinance 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 159 or section 160,
continue to be suspended

NOTES

1. The case of a further sentence of exactly three months which is not suspended will be dealt
with~ under clause (b) and not under clause (c).

2. Under clause (b) the offender is committed to undergo the unexpired portion of the
previous sentence from the date the further sentence is signed. An order by a superior naval
authority under section 159 (a) is not required.

Committal warrants must, in order to comply with the provisions of the Prisoners Act (III of
1900), be forwarded to the authorities of the prison to which the offender is sent. It will generally
be convenient to prepare separate warrants; in preparing the warrant in respect of the former
sentence care must be taken to state the unexpired portion which -the offender has to undergo.

162. Scope of power suspension.-The powers conferred by sections 155 and 159 shall be in
addition to, and not in derogation of, the power of mitigation, remission and commutation.

NOTES
1. See note l(ii) to section 155.
 2. The powers or an authority or officer who may mitigate, remit or commute a sentence
under section 132 or section 153 are not, in any way, affected by any of the sections 155 or 159.

163. Effect of suspension and remission on dismissal.-(l) 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 155, then, such dismissal shall not take effect until so
ordered by the authority or officer specified in that section

(2) If such other sentence is remitted under section 159, the punishment of dismissal shall
also be remitted. .

NOTE

In the case of a sentence of dismissal combined with rigorous imprisonment, or detention

which is suspended, the dismissal does not take effect until so ordered by the officer or authority
who can act under section 155. But when the unexpired portion of a suspended sentence of
imprisonment, or detention is remitted under section 159, the punishment of dismissal must also
be remitted.

CHAPTER XV

PROPERTY OF DECEASED PERSON DESERTERS

AND LUNATICS

164. Property of deceased persons and deserters (other than officers).-The following
provisions shall apply to the disposal of the property of every person subject to this Ordinance,
other than an officer, who dies or deserts, Namely:

(1) The commanding officer of the ship or naval establishment, to which the deceased person
or deserter belonged, shall secure all the movable property belonging to the deceased or
deserter that is in ship or naval establishment and cause an inventory thereof to be made, and
draw any pay and allowances due to such person.

(2) In the case of a deceased person who has left in a bank (including any post of the savings
bank, co-operative bank or society or any other institution receiving deposits in money,
however named) a deposit not exceeding one thousand Taka, the commanding officer, may,
if he thinks fit, require the agent, manager or other proper officer of such bank or other
institution to pay the deposit to him forthwith; notwithstanding anything, in any rules of the
bank or the other institutional and when any money has been paid by such bank or other
institution in compliance with such requisition, no person shall have any claim against the
bank or the other institution in respect of such money.

(3) In the case of a deceased person whose representative, widow or next of kin is on the
spot and. has given security for the payment of the service or other debts in ship or naval
establishment. if any of the deceased, the commanding officer I may if he thinks fit deliver
 over any property, received under clauses (1) and (2) to that representative, Widow or next of
kin. as the case may be, and shall not further interfere in relation to the property of the
deceased.

(4) In the case of a deceased person whose estate is 'not dealt with under clause (3), and in
the case of any deserter, the commanding officer shall cause the movable property to be sold
by public auction, and may convert into money any cash certificates (including post office
cash certificates, defence savings certificates and national savings certificates and shall pay
the service and other debts in ship or naval establishment, if any, from the proceeds of the
sale or conversion and from any pay and allowances drawn under clause (1) and from the
amount of the deposit, if any, received under clause (2).
(5) The surplus, if any, shall in the case of a deceased person; be paid to his representative,
widow or next of kin, if any, or, in the event of no claim to such surplus being established
within twelve months after the death, then the same shall be remitted to the prescribed
person;
Provided that such remission shall not bar the claim of any person to such surplus or any
part thereof.

(6) In the case of a deserter, the surplus, if any, shall be forthwith remitted to the prescribed
person and shall, on the expiry of three years from the date of his desertion, be forfeited to
the Government, unless the deserter shall in the meantime have surrendered or been
apprehended.

(7) The decision of the commanding officer as to what are the service and other debts in ship
or naval establishment of a deceased person or a deserter and as to the amount payable
therefore shall be final.

NOTES

1. Sections 164 to 166 provide for the disposal of estate of sailors. The produce for the disposal
of the estates of officers is laid down in sections 168 to 175.

2. Every person subject to this Ordinance.-The property of civilians when subject to

Ordinance under section 2 (2) (c) is to be dealt with under the Ordinance.

3. Who deserts.-A person who has been absent from duty without authority for thirty days and
has not subsequently surrendered or been apprehended is a deserter for the purpose of this
section; see section 176(1).
 4. Clause (1).-Movable property belonging to the deceased or deserter that is in ship or naval
establishment.-If any movable property of the deceased is lying elsewhere say, in his ancestral
home, the commanding officer cannot interfere in relation to it.

5. Clause (2).-The commanding officer may.-The power to collect bank balance is

discretionary and the commanding officer must exercise it with due regard to the circumstances
of each case. It would obviously be undesirable to collect a bank balance where the estate is
contested and the amount is not required for the payment of service and other debts in ship or
naval establishment Where, however, the estate is not contested and the total value thereof does
not exceed one thousand Taka and it is desirable, in order to help the widow or next of kin, to
realise the bank balance without obtaining a succession certificate etc. the commanding officer
may exercise the power conferred upon him by this clause.

6. Clause (3).-The representative widow or, next of kin, who takes over the estate under this
clause must be on the spot. See also section 165 which empowers the commanding officer [vide
rule 289(2)], to hand over the estate to anyone of the next of kin etc. Once the commanding
officer bands over the property to deceased's representative etc., he cannot further interfere in
relation to the property for any purpose whatsoever.

7. Clause (4).-ln the best interest of an estate, the auction should be conducted by Some
responsible person under the supervision of the Commanding Officer,

8. Clause (5).-See section 165 and notes thereto.

9. The “prescribed person”, for purposes of clauses (5) and (6) is the Chief of Naval Staff or
any person authorised by him in this behalf see rule 289(1).

165. Disposal of certain property without production of probate, etc. (other than
officers).-Property deliverable and money payable to the representative, widow o! next of kin, of
a deceased person under section 164 may, if the total value or amount thereof does not exceed
one thousand Taka, and if the prescribed person thinks fit, be delivered or paid to any person
appearing to him to be entitled to receive it or to administer the estate of the deceased, without
requiring the production of any probate, letters of administration, certificate or other such
conclusive evidence of title; and such delivery or payment shall be a full discharge to those
ordering or making the same and to the Republic from all further liability in respect of the
property or money; but nothing in this section shall affect the rights of any executor or
administrator or other representative, or of any creditor of a deceased person against any person
to whom such delivery or payment has been made;

NOTES
 1. See note 6 to section 164. It is no part of the duty of the prescribed person to adjudicate
upon rival claims. He may hand over the property or surplus to anyone of the representatives, the
widow or the next of kin appearing to him to be entitled to receive it. , But it is, for obvious
reasons, necessary that the prescribed person should select the most deserving of them.

2. The section protects the Republic and its agents from pecuniary liability, where their
decision happens to be questionable. The section does not, however, affect the right of the rightful
claimant against the person to whom the property or surplus is actually, but wrongfully, delivered

3. The prescribed person is the Chief of Naval Staff, or any person authorized by him or the
Commanding Officer. See rule 289(2).

166. Application of sections 164 and 165 to lunatics, etc.-The provisions of sections 164
and 165 shall. so far as they can be made applicable, apply in the case of a person subject to this
Ordinance (not being an officer) who notwithstanding anything contained in the Lunacy Act,
1912 (IV of 1912), is ascertained in the prescribed manner to be insane, or, who being on active
service, is officially reported missing, as if he had died on the day on which his insanity is so
ascertained, or as the case may be, on the day on which he is officially reported missing:

Provided that in the case of a person so reported missing, no action shall be taken under
clauses (2) to (5) of section 164 until such time as be is officially presumed to be dead.

NOTES

1. Officially presumed to be dead.-The ordinary rule for the proving of death is stated in
sections 107 and 108 of the evidence Act. This section, however, creates an exception and
provides that the death of a person missing on active service only may be presumed for official
purposes, without reference to those sections of the Evidence Act. and, when so presumed, the
provision of clauses (2) to (5) of section 164 may be acted upon as if the person reported to be
missing were in fact dead.

2. Prescribed manner of ascertaining intensity.-See rule 276.

167. Property of officers who die or desert.-The provisions of sections 168 to 173 shall
apply to the disposal of the property of officers subject to this Ordinance who die or desert.
 168. Powers of Committee of Adjustment. (1) On the death or desertion of an officer, a
Committee of Adjustment appointed in this behalf in the manner prescribed, (hereinafter referred
to as the Committee) shall, ~s soon as may be, subject to rules:

(a) secure all the movable property belonging to the deceased or deserter that is in ship or
naval establishment and cause an inventory thereof to -be made and ascertain and draw the
pay and allowances, if any, due to him; and

(b) ascertain the amount, and provide for the payment, of the service and other debts in
ship or naval establishment, if any, of the deceased or deserter.

(2) In the case of a deceased officer whose representative, widow or next of kin has given.
security to the satisfaction of the satisfaction of the Committee for the payment of the service and
other debts in ship or naval establishment, if any, of the deceased, the Committee shall deliver
any property received by it under subsection (I) to that representative, window or next of kin, as
the case may be and shall not further interfere in relation to the property of the deceased.

(3) In the case of a deceased officer the Committee, save as may be prescribed shall, if it
appears to it necessary for the payment of service and other debts in ship or naval establishment
and the expenses, if any, incurred by the Committee and may, in any other case, collect all
moneys left by the deceased in any bank including any post office savings bank, co-operative
bank or society or any other institution receiving deposits in money, however named) and for that
purpose may require the agent, manager or other proper officer of such bank, society or other
institution to. pay the moneys to the Committee forthwith, and such agent, manager or other
officer shall comply with the requisition notwithstanding any thing in any rules of the bank or
other institution and when any money has been paid by a bank or other institution in compliance
with the requisition under this' sub-section, no person shall have a claim against the bank or other
institution in respect of such money.

(4) In the case of a deceased officer whose estate has not been dealt with under sub-section
(2) and in the case of a deserter the Committee subject to rules, shall, for the purpose of paying
the service and other debts in ships or naval establishment and may in any other case, sell or
convert into money the movable property of the deceased or deserter

(5) The Committee shall, out of the -moneys referred to in sub-section (3) and (4) pay the
service and other debts in ship or naval establishment, if any of the deceased or deserter and in
the case of a deceased, also the expenses of his last illness.

(6) In the case of a deceased officer the surplus, if an, shall be remitted to the prescribed person.
 (7) In the case of an officer who is a deserter, the, surplus, if any, .shall be forthwith remitted
to the prescribed person and shall, on the expiry of three years from the date of his desertion, be
forfeited to Republic unless the deserter shall in the meantime have surrendered or been
apprehended :

Provided that the prescribed person may pay the whole or such part of the surplus as he may
deem proper to the wife or children or other dependents of the officer.

(8) If in any case a doubt or difference arises as to what are the service and other debts in ship or
naval establishment of a deceased officer or deserter or as to the amount payable therefore, the
decision of the prescribe person shall be final and shall be binding on all persons for a11
purposes.

(9) For the purposes of the exercise of its duties under this section, the Committee shall to the
exclusion of all authorities and persons whomsoever, have the same rights and powers as if it had
taken out representation to the deceased; and any receipt given by he Committee shall have effect
accordingly.

NOTES

1. Sub-section (1).-(it "desertion"', see section 176 (1);

(ii) "Movable property belonging to the deceased or deserter that
is ship or naval establishment" ; see note (4) to section 164.

2. Sob-section (2)-See note 6 to section 164.

3. Sub-section (3).-(i) Prescribed limit-The aggregate sum lying in one or more banks upto
Taka. 2,5OO/- may the collected by the Committee, see rule 290.

(ii) the power of a Committee of Adjustment to lift bank balances is restricted to the amount
required for the payment of service and other debts in ship or naval establishment and the
expenses incurred by the Committee.

4. Sub-section (4).-and may in any other case-Where, for instance, the committee have no
money to pay the expenses of the last illness or the expenses incurred by them, or where they
have been specifically asked by the legal representative, Widow or next of kin to do so, they may
sell or convert into money any movable property; see subsection (5).
 5. Sub section (9)-This subsection is intended to save all those who deal with a Committee of
Adjustment from the risk of further claim by the heirs of the deceased officer.

6. Prescribed person. For the purpose of this section and section 169, the prescribed person
would be the same as for section 170 namely the Chief of Naval Staff, any person authorised by
him or the president of the Committee; see rule 291

169. Disposal of surplus by the prescribed person.-On receipt of the surplus referred to in
sub-section (6) of section 168 the prescribed person shall proceed as follows:

(1) If he knows of a representative, widow or next of kin of the deceased, he shall pay the
surplus to that representative, widow or next of kin.

(2) If he does not know of any such representative, widow or next of kin, he shall publish
every year a notice' in the prescribed form and manner for six consecutive years and if no
claim to the surplus is made by a representative, widow or next of kin of the deceased within
six months after the publication or the last of such notices, the prescribed person shall deposit
the surplus together with any income or accumulation of income accrued there from to the
credit of the Government:
Provided that such deposit shall not bar the claim of any person to such surplus or any part
thereof.
NOTES

1. Prescribed person.-See note 6 to section 168.

2. Clause (2).-Prescribed form of notice given in the Seventh Appendix to the rules, is
reproduced below:

Prescribed Form of Notice under Clause (1.) of Section 169 of the

Navy Ordinance, 1961

NOTES

In pursuance of clause (2) of section 169 of the Navy Ordinance 1961, notice is hereby given
that there is available for distribution amongst the next of kin Or other entitled persons the sum of
money set opposite to tbename of (or, each of) the deceased office (or, officers) mentioned in the
list below.
 Applications from persons supposing themselves entitled as next of kin or otherwise should
be addressed to the Chief of Naval Staff, Bangladesh Navy, and marked outside "Claim to the
estate of deceased officer".

*(If no claim is made to the estate of the . deceased officer within six months after the
publication of this sixth notice, the amount together with any income or accumulation of
income accrued there from shall be deposited to the credit of the Government.)

Place:

Date

First (or, second, third, fourth, fifth, sixth) publication.

Full name, Date and Amount

rank branch place of death available for
and ship/ distribution
establishment amongst
of the next of kins
deceased

*To be entered only in case of the SIXTH and last publication.

170. Disposal of certain property without production of probate. etc.-Property

deliverable and money payable to the representative widow or next of kin of a deceased officer
under section 168 or section 169 may, if the total amount of value thereof does not exceed five
thousand taka, and, if the prescribed person thinks fit, be delivered or paid to any person
appearing to him to be entitled to receive it or to administer the estate of the deceased, without
requiring the production of any probate, letters of administration, succession certificate or other
such conclusive evidence of title.

NOTES
 1. Prescribed person.-See rule 291.

2. See notes to section 165 which apply also to this section.

171. Discharge of Committee prescribed person and the Republic.-Any payment of

money or delivery, application sale or other disposition of any property or money made, or
purported to be made by the Committee or the prescribed person, in good faith in pursuance of
section 168, section 169 or section 170 shall be valid and shall be a full discharge to the
Committee or the prescribed person, as the case may be, and to Republic from all further liability
in respect of that money or property; but nothing herein contained shall affect the right of any
executor or administrator or other representative, or of any creditor of the deceased officer against
any person to whom such payment or delivery has been made.

NOTE

Compare section 165 and see note (2) thereto.

172. Property in the hands of the Committee or the prescribed person not to be assets at
the place where the Committee or the prescribed person is stationed.-Any property coming
under section 168 into the hands of the Committee or the prescribed person shall not. by reason of
so coming, be deemed to be assets or effects at the place in which that Committee or the
prescribed person is stationed and it shall not be necessary by reason thereof that representation
be taken out in respect of that property for that place.

NOTE

This section is intended to make the Committee of Adjustment a sort of representative of the
deceased officer, without their actually taking out representation to enable them to deal with the
estate in the manner specified in the preceding sections.

173. Saving of rights of representative.-After the Committee has deposited with the prescribed
person the surplus of the property of any deceased officer under sub-section (6) of section 168,
any representative of the deceased shall, as regards any property of the deceased not collected by
the Committee and not forming part of the aforesaid surplus, have the same rights and duties as if
section 168 had not been enacted.
 NOTE

A Committee of Adjustment is not, of course, expected to collect all the assets of a deceased
officer. Any assets not collected by them may be collected by any representative of the deceased.

174. application of sections 68 to 173 to lunatics, etc.- The provisions of sections 168 to
173 shall;- so far as they can be made applicable, apply in the case of an officer who
notwithstanding anything contained in the Lunacy Act, 1912 I).V of 1912), is ascertained in the
prescribed manner to be insane, or, who being on active service, is officially reported missing as
if he had died on the day on which his insanity is so ascertained or, as the Case may be, on the
day on which he is officially reported missing:

Provided that in the case of an officer so reported missing no action shall be taken under sub-
section (2) to (5) of section 168 untihl1ch time as be is officially presumed to be dead.

NOTE

Officially reported missing -See note to section 166. See also rules 274 and 275.

175. Appointment of Standing Committee of Adjustment when officers die or desert while on
active service-When an officer dies or deserts while on active service, the references in the
foregoing provisions of this Chapter to the Committee shall be Construed as references to the
Standing Committee of Adjustment if any appointed in this behalf in the manner prescribed.

NOTE

It is very difficult, if not impossible, to appoint a fresh Committee of Adjustment for dealing
with the estate of each officer who dies on active service. It would,- therefore, be convenient to
utilise the provisions of this section and to appoint a Standing-Committee of Adjustment at the
base of operations to deal with estates of all officers who die or desert,

176. Interpretations.-For the purposes of this Chapter:

 (1) a person shall be deemed to be a deserter if he without authority has been absent from
duty for a period of thirty days and has not subsequently surrendered or been apprehended ;

(2) the expression "service and other debts in ship or naval establishment" includes money
due as naval debts, namely sums due in respect of, or any advance in respect of (a) quarters;
(b) mess band and other service accounts; and (c) naval clothing appointments and
equipments not exceeding a sum equal to three months' Pay of the deceased and having
become due within eighteen months before his death;

(3) "Representation" includes probate and letters of administration with or without the will
annexed. and a succession certificate, constituting a person the executor or administrator of
the estate of a deceased person or authorities him to receive or realize the assets of deceased
person;

(4) "representative" means any person who has taken out representation.
NOTE

Clause (l).-Mere absence without leave for a period of thirty days is enough to constitute a
man a deserter for the purposes of Chapter XV, i.e., for all purposes-connected with the effect of
a deserter in the ship or naval establishment. Note that the estate of a deserter outside the ship or
naval establishment" cannot be collected or otherwise dealt with under this Chapter.

CHAPTER XVI

RULES

177. Power to make rules.-(I) The Government” may make rules for the purpose of
carrying into effect the provisions of this Ordinance.

(2) Without prejudice to the generality of the power conferred by sub-section (1) such rules
may provide for.

(a) the retirement, release discharge, removal or dismissal from the service of person subject
to this Ordinance:

(b) the procedure to be observed during investigation, arrest, custody and summary trial and
powers of punishment of commanding officers and other authorities at such trials and
delegation of such powers;
(c) the assembly and procedure of boards of inquiry, the recording of summaries of evidence
and the administration of oaths and affirmation at such proceeding,

(d) the convening and constitution of court-martial' ;

(e) the adjournment, dissolution and sittings of court-martial;

(f) the procedure to be observed in' trial by court-martial; and the appearing of legal
practitioners thereat;

(g) the confirmation, revision and annulment of, and petitions against, the findings and
sentences of court-martial;

(h) the carrying into effect of sentences of court-martial ;

(i) the forms of orders to be made under the provisions of this Ordinance relating to court-
martial, and sentences of death, imprisonment or detention;

(j) the constitution of authorities to decide for what person to what amounts and in what
manner provision should be made for dependents of prisoners of war or missing persons
under section 88 and the due carrying out of such decisions;

(k) the relative rank of and powers of command to be exercised by officers, junior
commissioned officers, warrant officers, petty officers and non-commissioned officers of the
Bangladesh Army, the Bangladesh Navy and the Bangladesh Air Force, when acting together;

(I) deductions on account of public and service debts from the pay and. allowances of persons
subject to this Ordinance; and

(m) any other matter directed by this Ordinance to be prescribed

(3) All rules made under this Ordinance shall be published in the official Gazette and, on
such publication, shall have effect as if enacted in this Ordinance.

NOTES
1. The "Rules" made under this section together with notes are included in Part m of this Manual.

2. Subsection (2),clause (m).-'8ee section 4 (xxviii).

3. Sub section (3).-The rules were published in the Gazette of Bangladesh Extraordinary, dated
28th December, 1961 and are called theBang1adesh Navy Rules. They "have effect if as enacted
in this Ordinance" and have been brought into force together with the Ordinance w.e.f. 1st March
1962.

178.-Power to make regulations.-(1) The Government may make regulations for the
governance, command, discipline recruitment, conditions of service and regulation of the naval
forces and generally for a]1 or any of the purposes of this Ordinance, other than those specified in
section 177.

(2) Without prejudice to the generality of the power conferred by sub-section (1), such
regulations may provide for :-

(a) the rank, precedence, powers of command and authority of officers and sailors ;

(b) the terms and conditions of service, the pay, pensions, allowances and other benefits of
officers and sailors;

(c) the ceremonials to be observed and the marks of respect to be paid in the service; and

(d) any other matter which is directed by this Ordinance or the rules, to be specified by
regulations.

NOTES

1. The- Navy Regulations, 1961, have been issued in two parts, Part I under the authority of the
Government and Part II under the authority of the C.N.S. and brought into force from 27th
October 1961.
 2. This section has however become effective from 1st March, 1962, on the Ordinance and the
Rules being brought into force. These Regulations shall-by virtue of Section 24 of the General
Clauses Act, 1897-be deemed as from that date to have been made under the provisions of this
section. However, such of the provisions of these Regulations as are inconsistent with the
provisions of the Ordinance and the Rules shall thereafter be deemed to have been superseded.

179. Repeals.- (1) The Acts and Ordinances mentioned in the Schedule are repealed.

THE SCHEDULE

(See Section 179)

(1) The Pakistan Navy (Discipline) Act, 1934. XXXIV of 1934

(2) The Pakistan Naval Reserve Forces (Discipline) Act, 1939

(3) The Naval Discipline Ordinance, 1945 VII of 1945
(4) The Pakistan Navy (Court-martial) Ordinance, 1949 XXI of 1949
 GOVERNMENT OF BANGLADFSH

MINISTRY OF DEFENCE

NOTIFICATION

Karachi, the 28th December, 1961

S. R. O. 1225(K)/61. - In exercise of the powers conferred by section 21 and section 177 of

the Navy Ordinance, 1961 (XXXV of 1961), the Government is pleased to make the following
rules, namely:-

THE NAVY RULES, 1961

CHAPTER I

PRELIMINARY
1. Short title.-These rules may be called the Navy Rules 1961.

N0TE
1. These Rules have been brought into force with effect from 1st March, 1962 (see note 2 to
section 1).

2. Definitions. - In these rules, unless a contrary intention appears from the context,-

(a) '''Administrative Authority" means a senior officer who is designated as such and is in
command of a group of ships or naval establishments and installations and authorised to exercise
administrative control over such ships and establishments;
 (b) "Drafting Authority" means the authority responsible for the maintenance of the sailor's
service records, for their advancement, draft, leave, re-engagement, release on completion of
engagement and such other matters as may be specified in this behalf by the Chief of Naval Staff
;

(c) "Ordinance" means the Navy Ordinance, 1961 (XXXVof 1961);

(d) "President" when used in relation to a court-martial means the president of the court-martial;

(e) "Proper naval authority" when used in relation to any power, duty, act or matter, means
such naval authority as, in pursuance of the regulations for the navy or the custom of the service,
exercises or performs that power or duty concerned with that act or matter;

(f) "Section" means a section of the Ordinance.

3. Reports and appendices. -Any report, or application directed by these rules to be made to
a superior, authority or proper naval authority, shall be made in writing through the proper
channel, unless the authority, on account of the exigencies of the service or otherwise dispenses
with the writing.
4. Forms in Appendices.-(I) The forms set forth in the Appendices to these rules, with such
variations as the circumstances of each case require shall, as far as possible, be used for the
respective purposes therein mentioned, but a deviation from such forms will not, by reason only
of such deviation, render any charge, warrant, order, proceedings or other document invalid.
(2) Nor failure to use any such form shall render any act or thing invalid.
(3) The notes to, and instructions in, the forms shall, as far as possible, be followed in and in
relation to all cases to which such notes and instructions apply, but shall not have the force of
rules.

NOTE

Sub-rule (1). - As for example, a deviation from an enrolment from (Appendix VIII) will dot
render the enrolment invalid. Indeed any minor deviation may properly be made under this sub-
rule to suit a special case, without a formal amendment of the enrolment form by a notification in
the Official Gazette in accordance with section 177 of the Ordinance

5. Regarding matters not provided for. - AII matters not provided for by the Ordinance,
these rules and the regulations shall be regulated and determined according to the established
practice and custom of the Bangladesh Navy, in so far as such practice or custom is not
inconsistent with the provisions of the Ordinance, these rules and regulations, and in the absence
of such practice or custom by the general principles of equity and justice.
 CHAPTER II

ATTESTATION

6. Attestation.-(1) Every person enrolled under the Ordinance shall on successful

completion of the probationary period be attested as required by section 14.
Explanation. -A boy or artificer apprentice shall be on probation until he has attained the
man's rank as well as successfully completed the basic training of his branch as specified in the
regulations. A direct entry man shall be on probation for the first year of his service.
(2) Every person, who has been enrolled prior to the commencement of the Ordinance and
has not yet completed the probationary period, shall also be attested.
(3) A Sailor on the Fleet Reserve list, shall also be attested when called up for training,
exercise or into actual service, provided he has not already been attested.
(3A) Every person who was attested prior to the twenty seventh day of July, 1962, in
pursuance of sub-rule (1), (2) or (3) shall be attested for a second time.
(4) In no case shall attestation be delayed for more than three months after it has become due.

NOTE

Sub-rule (3A) was inserted by Gazette Notification, S.R.O. 787 (K)162, dated the 27th July,
1962, see Part V of the Manual.

7. Oath or affirmation to be taken on attestation.- (I) The oath or affirmation to be taken on

attestation shall be in one or the forms given in the First Appendix to these rules, or in such other
form to the same purport as the attesting officer ascertains to be in accordance with the religion of
the person to be attested or otherwise binding on his conscience.

(2) The oath or affirmation prescribed in sub-rule (1) shall be administered by the
commanding officer of the person to be attested or any other officer authorized by him in this
behalf.

(3) Every Sailor to whom the oath or 'affirmation is administered as aforesaid shall also sign
the oath or affirmation in confirmation of the same having been administered to him, and such
 confirmation shall be authenticated by the signature of the officer administering the oath or
affirmation and that document shall be maintained by the Drafting Authority in the sailors service
record.

NOTES
1. For manner of administering and taking the oath or affirmation . see notes to rule 139.
2. Form of oath or affirmation and certificate of attestation as given in the First Appendix to
the rules-are reproduced- below:
 B. CERTIFICATE OF THE ATI'ESTING OFFICER

This is to certify that the above mentioned Sailor was administered* oath*/affirmation by me
in token whereof the above declaration has been signed by him in my presence - on the
………….. day of …………....19, B.N.S…………. Signature and Rank of

the Attesting Officer.

(*Delete whichever is not applicable.)

8 Period and conditions of engagement and re-engagement.-(I) The initial period of

engagement on enrolment shall not exceed twelve years in the case of a boy or direct entry man
and eighteen years in the case of an artificer, apprentice, to be reckoned from the day the boy,
direct entry man or artificer, apprentice attains the age of seventeen years or completes the
probationary period whichever be later, and on completions of the said period the sailor shall be
released, unless he is compulsorily retained in the service in accordance with section 18, or
voluntaily offers himself for re-engagement.

(2) The terms and conditions for engagement, and re-engagement, the periods of re-
engagement in the various branches of the navy and the terms and conditions and the period of
service in the Fleet Reserve shall be as specified in the regulations.

NOTE

No person can be enrolled as a sailor for a initial period of engagement exceeding the period
prescribed by this rule, see section 12 (2).

CHAPTER III

TERMINATION OF SERVICE - OFFICERS

 9. Dismissal from the service. - (I) An officer may be dismissed from the service either by a
sentence of a court-martial, or by administrative action without assigning any reason, with the
prior approval of the President.

(2) An officer, dismissed from the service, may be granted pension as an ex-gratia award at
the discretion of the President.

NOTES

1. The approval of the President for the dismissal of an officer by administrative action alone
is necessary. No such approval is required in case of a sentence of dismissal awarded by court-
martial.

2. Pension as an ex-gratia award may be granted at the discretion of the President whether the
dismissal was by administrative action or by sentence of court-martial.

3. See - also notes toI8sections15 and 17.

10. Removal from the service. - (1) An officer who, in the opinion of the Government, has
by reason of misconduct become unworthy of holding a commission in the navy, shall be liable to
removed from the service.

(2) The Government may instead of removing an officer under sub rule (I), call upon him to,
resign his commission, and if he fails to resign within the time specified by the Government he
may be removed from the service.

(3) The Government may grant an officer, whose services have been terminated under sub-
rule (1) or sub-rule (2) a pension or gratuity, not exceeding two-thirds of his earned entitlement,
as an ex-gratia award.

NOTES
 1. Misconduct. - It is not easy to lay down any hard and fast rule as to when does an officer
become "unworthy of holding a commission in the navy' by reason of misconduct. Each
case must be judged on its merits and the surrounding circumstances. When an officer has
committed and act or omission which amounts to an "officer" under the Ordinance, he may
be dis. missed or removed from the service by administrative action but normally however,
he would be tried, either by court-martia1 or summarily, according to the nature of the
offence and other circumstances of the case.

2. As to the procedure which should be observed before ordering an o8icer's dismissal, removal
or compulsory retirement, See N.R 0807

11. Compulsory or voluntary resignation. - (I) (a) An officer shall be 1iable to be

Compelled to resign his commission if he is, in the opinion of the Government, unfit for further
retention in the service. by reason of his incapacity, inefficiency, unsatisfactory performance or
neglect of duty or for similar other causes, but in Coming any such opinion the Government shall
have duo regard to factors, if any, beyond the officer's control.

Explanation.--No consequences resulting from drunkenness or carelessness on the part of an

officer shall be considered to be factors beyond his control for purposes of the rules.

(b) The Government may, before compelling any such officer as aforesaid to resign his
commission, afford him an opportunity to retire from the service voluntarily

(c) In forwarding such an application the commanding officer shall report as to whether or not
the application has been submitted in anticipation of any action. against the officer for
misconduct, inefficiency, incapacity, unsatisfactory performance or neglect of duty or for similar
other causes or by reason of any circumstances affecting the officer's honour or character as a
gentleman, and if the commanding officer is convinced that it has been submitted in such
anticipation or in such circumstances' he shall state in his report all the facts and particulars of the
case and shall, obtain the officer's signature to the report in token of his having seen it. The
commanding officer shall also state in his report as to whether or not there are any local or other
outstanding claims against the officer and whether there is any objection to the officer being
permitted to resign.

(d) An officer who is permitted to resign his commission voluntarily may be granted such
pension or gratuity as is provided for in sub-rule (3) of rule 10.
 12. General provisions regarding retirement- Retirement of officers will always be subject
to the exigencies of service. Full power is reserved to the government temporarily to suspend or
to limit retirement in general or in individual cases whenever it may be necessary to do so in the
public interest. Officers of the rank of Captain and above will not be permitted to retire
voluntarily unless deemed expedient by the Government

12A. Age/Service limits for retirement of officers of Navy:-

(1) Subject to the provision of rule 12, an officer shall, unless he exercises option under rule
12B(1) on completion of the service limit specified in the Table below, retire from service on
completion of the age limit specified in that Table:-

TABLE

(a)Officers of General Branch

Rank Service Limit Age Limit

Lt. Commander and below 23 years 48 years
(other than SD List)
Lt. Commander and below (SD23 years 50 years. "In special case, Government
List) may extend another: 02 (two) years i.e.
upto 52 years with the recommendation of
the Chief of the Naval Staff:

Commander 25 years 50 years I

Captain . 26 years 53 years '1
'Commodore: 28 years 55 years
Rear Admiral . 30 years 57 years
Vice Admiral 32 years 58 years
Admiral 35yvears 60 years I

(b) . Officers of Education and Judge Advocate General's Branch

Rank Service Age Limit

Limit
Lt Commander and below 25 Years 52 Years
Commander 27 Years 54 Years
Captain 28 Years 55 Years
 (2) The tenure in the appointments of the Chief of the Naval Staff will continue to be
governed by SRO No. 235-L/81/2C-S-l/81/D-1, dated 8th July 1981, SRO No. 391-L/82/2C-S-
l/81/D-1, dated 24th November 1982 SRO No. 491-L/84 dated 12th November 1984 of the
Ministry of Defence.

12B.Voluntary Retirement :- (1) An officer intending to retire fromservice on completion of

the service limit specified in rule 12A may exercise his option to do so by serving a notice of his
intention in writing to the Government at least six months prior to the date of such completion.
The option once exercised shall be irrevocable subject to acceptance there of by the Government.

(2) The Chief of the Naval Staff may. if he is satisfied that an officer who has completed his
service limit specified in rule 12A(l) but not opted for retirement should be retired from service in
the public interest, recommend to the Government for considering the cases of such officer for
retirement.

(Ref: Bangladesh Gazette Extra Ordinary Notification No. SRO. 87-L/88 dated 23 April 1988).

NOTE

Retired List, see N.R. 0840

13. Discharge from the service :- (1) A short service commissioned officer may be
discharged from the service on the same grounds and in the same manner as a permanent
commissioned officer may be removed or compelled to resign as provided for in rule 10 and sub-
rule (1) of rule II. A short service commissioned officer may also be discharged from the service.
if his services, in the opinion of the Government, are no longer required. In such cases his short
service commission shall be terminated and he shall be entitled to gratuity or pension as
admissible under the regulations.

(2) Whilst under training and until confirmed in the rank of SubLieutenant, a subordinate
officer shall be liable to be discharged .from the service at any time at the discretion of the Chief
of Naval Staff, if :

(a) he fails to reach a satisfactory standard. Or

(b) his conduct is unsatisfactory, or
(c) he is considered unsuitable for the service.
 14. Compulsory and Voluntary release : - (1) A short service commissioned officer shall,
unless exigencies of service otherwise require. be released on the expiry of the term of his
commission.

(2) (a) An officer including a short service commissioned officer who is, ill the opinion of the
Government, unsuitable for further retention in the service by reason of infirmity of body or mind
not being In infirmity sufficient to warrant invaliding or for any other cause not amounting to
misconduct, and not being a cause within the control of such officer, shall be given three months
notice for termination of the service, and shall be placed on the Retired List

(b) An officer retired from the service as, aforesaid, shall be granted a compensation pension.

(3) (a) All officer including a short service commissioned officer who intends to retire from
.the Active List Voluntarily, must submit his application through his commanding Officer and the
procedure laid down in sub rule (2) of rule II shall be followed.

(b) An Officer permitted by the Government to retire voluntarily shall be placed on the
Retired List and shall be granted such pension or gratuity as may be admissible under the
regulations.

(4) On release, a short service commissioned Officer shall be placed on the Emergency List.

(5) Right of Government to Retire any Officer: - Notwithstanding any other provisions of
these Rules, the Government may retire any officer at any time without assigning any reason
whatsoever.

(6) Overriding Effect of this Rule: - All other rules on the subject to which this rule relates
shall to the extent of their repugnancy to this rule, be deemed to have been superseded.

Note:- For the purposes of these rule.. "Service" means commissioned service including
service as a Branch Officer and Service forfeited as a result of sentence of a court-martial.
(Ref: BD Gazette Extra Ordinary Notification No. SR0-87-LAWI88 dated 23April 1988).

NOTE

Emergency List see N R 0842

15. Procedure. - Prior to the termination of the service of an officer under any of the
provision of the Chapter, the procedure as specified in the regulations shall be observed.

16. Invaliding out of service. - An officer, who by bodily or mental infirmity is incapacitated
for the service or for the particular branch of the service to which he belongs, shall be invalided
out of the service and granted such invalid pension as may be admissible under the regulations.

17. Effective date of termination of service.-The Government, when authorizing

termination of service of an officer may specify any future date from which it shall take effect:

Provided that when no such date is specified, the termination of service shall take effect from
the date on which it is duly authorized, or from the date on which the officer concerned ceases to
perform naval duty, whichever is later.
18 Liability of recall to service.- (1) A permanent or short service commissioned officer
shall, notwithstanding is being retired or released from the Active List and placed on the Retired
List or the Emergency List respectively, be liable, on being recalled by a general or special
Order of the Government at a time of imminent national danger of grave emergency, to serve on
the Active List until the completion of the following age limits:

Substantive rank on retirement or release Age limit

(a) Captain and above ... ... ... 60 years.

(b) Commander and below... ... ... 5S years,

(2) The services of an officer recalled under sub-rule (1) may be retained during the
continuance of the danger emergency, although he may pass the age limit for recall during his
employment on Active List.

(3) If an officer recalled under sub-rule (1) by the competent naval authority fails to report for
duty at the time and place notified to him, he shall be liable to have his pension or any portion of
it suspended or withheld under the orders of the Government, if his reasons for not reporting are
not deemed to be satisfactory by the Government.
 (4) An officer so recalled shall be employed in the substantive rank and branch in which he
was serving at the time of his retirement or release, and shall be governed by the same terms and
conditions of service as arc applicable to officers on the Active List subject to such modifications:
as may be specified in the regulations.

NOTES
1. sub-rule (3)-An officer who is recalled for duty under sub-rule (1) becomes subject to the
Ordinance under section 2 (1) (b).
2. As to Retired List, Emergency List and the liabilities of officers Placed on such Lists see N. R.
0840 to 0842.
19. Removal from the Retired List or the Emergency List. - A Permanent. or a short
service commissioned officer shall be liable to be removed from the Retired List or, as the case
may be, the Emergency List by order of the Government for 1Disconduct, and on such removal
the Government may suspend or with-hold the whole or any part of the pension of such officer
20. service with foreign powers. - An officer whose services have terminated under any of
the provisions of this Chapter, shall not serve in the armed forces of foreign power without the
prior consent in writing of the Government.

CHAPTER IV

TERMINATION OF SERVICE AND REVERSION - SAILORS

21. Certificate on termination of service. - A certificate furnished in accordance with the

provisions of section 20, hereinafter

called a "Termination of Service Certificate" may be so furnished either by personal delivery

thereof by or on behalf of the Drafting Authority to the person dismissed, discharged or released,
or by its transmission by registered post to such person.

NOTE

See section 20 and note thereto. The Drafting Authority is the officer prescribed under rule 279
for the purpose of furnishing the required Certificate under section 20.
 22. Effective date of termination of service. - The authority competent to authorize
termination of service of a Sailor may when authorizing it, specify any future date from which it
shall take effect:

Provided that if no such date is specified, the termination shall take effect from the date on
which it is duly authorized, or from the date on which the sailor concerned cases to do naval duty,
which ever is later.

1. Authority competent to authorise, See role 23 to 26.

2. In the case of a sailor serving in Bangladesh it will generally be convenient for the authority,
authorising termination of service, not to specify any date but to leave the commanding officer
free to relieve the person of naval duty on the most convenient date. There may be cases,
whoever, where it is found to be convenient for that authority to specify a date.
3. If the competent authority desires to specify a date, he must specify it at the time he
authorises the termination of service. There is no legal objection to the future date being made
indefinite in suitable cases e.g., in the case of a man serving overseas, the-date of
disembarkation" in Bangladesh but whenever possible a precise date should be specified.
However the competent authority cannot make the dismissal or discharge retrospective.
4. If the dismissal or discharge of a person is found to be illegal, e.g., if it was not authorised by
competent authority, that person will be entitled to pay from the date of his illegal dismissal etc.,
to the date of legal dismissal etc. although he performed no naval duty from that date.
5. When a person has been legally dismissed, removed, discharged, released or retired in the
prescribed manner, he ceases to be subject to the ordinance and the roles, and his dismissal etc.,
cannot subsequently be cancelled, except with the consent of the person concerned. However
such a person may be arrested and kept in naval custody for any offence committed by him while
subject to the Ordinance, provided his trial commencing within six months of his ceasing to be so
subject. See section 106.

23. Dismissal from the service.-A Sailor may be dismissed from the service by a sentence of a
court-martial, or summarily by his commanding officer, but in the latter case prior approval in
writing of the Chief of the naval Staff shall be necessary.

NOTE

A Sailor may also be dismissed by administrative action under the orders of the Government or
the Chief of naval Staff; See section 17(3),

24. Discharge from the service; - (l) The .discharge of a sailor from the service may be of the
following kinds, namely:-

(a) as undesirable;
(b) as S.N.L.R ;

(c) as unsuitable;

(d) on compassionate grounds; and

(e) on expiry of engagement.

(2) Discharge" Undesirable'. - A Sailor whose further retention in the service is, on
account of repeated misconduct or indiscipline on his part, considered to be detrimental
to the service, but who has not recently committed a specific offence for which dismissal may
be an appropriate punishment, is liable to be discharged as Undesirable by the Drafting Authority.
It is the only type of discharge which is to be regarded as a punishment and is accompanied by
forfeiture of all benefits which would normally be admissible under other types of discharge.

(3) Discharge 'S.N.L.R.' - A Sailor whose services have to be dispensed with due to any
such reason as reduction in sanctioned strength or reorganisation of the branch, may be
discharged by the Drafting Authority as "services no longer required" (S.N.L.R.). A
Sailor who has been convicted by a criminal court may also be so discharged.

(4) Discharge 'Unsuitable'.-

(a) During probationary period.-A I boy, artificer apprentice or direct entry man,
who during the probationary period is considered by his commanding officer as unli-
kely to make an efficient Sailor due to unsatisfactory progress or conduct, is liable to
be discharged as unsuitable by the under mentioned authorities :-

(i) A boy, artificer apprentice or direct entry man, whilst under training in a naval
establishment by the commanding officer of that establishment;

(ii) A boy or direct entry man under training afloat by the Drafting Authority. on the
recommendation of the commanding officer of the ship in which he is borne for training.

(b) On completion of probationary period. - A sailor who, on account of infirmity of body

or mind not being an infirmity sufficient to warrant invaliding or by reason of his
incompetence, is considered to b,. incapable or performing the duties of the lowest rank to
which he can be reverted in his branch or on transfer to any other branch, is liable to be
discharged as unsuitable by the Drafting Authority.

(5) Discharge on compassionate grounds. - A boy, artificer apprentice or direct entry man
may be granted by the Drafting Authority discharge on compassionate grounds, in cases in
which it is evident that further jretemioI1J of such boy, artificer apprentice or man in the service
will entail material hardship to him or to his dependents,

(6) The Chief of Naval staff may suspend or limit the powers of the authorities mentioned in
this rule to grant discharges, and may direct that all or any class of such cases be referred for
decision to rumor any other authority specified by him.

. d the authorities empowered to order such discharge.

15.. Discharge on expiry of engageDlent.-(1) The Drafting

Au . is competent to authorize the discharge of a sailor who has

completed his' period of engagement or re-engagement and does not desire to re-engage for
further service:

NOTE

This rule prescribes the different kinds of discharge applicable to a sailor and the authorities
empowered to order such discharge.

25. Discharge on expiry of engagement.-(1) The Drafting Authority is competent to

authorize the discharge of a sailor who has

completed his period of engagement or re-engagement and does not desire to re-engage for
further service:

Provided that in case war is imminent or existing, or the strength of the branch of service to
which the sailor belongs is 5 per cent below its sanctioned strength or will be so on release of
such a Sailor such authority shall report the matter to the Chief of Naval Staff for decision as to
whether the sailor is to be Compulsorily retained in the service in accordance with section 18.

(2) sailor shall normally be discharged from the service and place on the fleet Reserve List on
completion of the following age or service limits, whichever is reached earlier.

Rank Age Service

Limit Limit
(a) Master 52 years 32
Chief Petty years
officers
(b) Chief petty 52 years 30
officers years
(c) Petty 50 years 28
officers years
(d) Leading 45 years 23
rank years
(e) A.B. rank 40 years 18
years

3. The Chief of Naval Staff may sanction an extension of service, if the exigencies of the
service warrant it, beyond the age or service limit as stated in sub-rule (2). Such extensions may
be granted up to one year at a time subject to the condition that the individual concerned is
physically fit for satisfactory discharge of the duties required of him. In no case, such extension
will be granted beyond the age of 52 years. (Ref: SRO No. 123 Law/91dt.30 Apr 91).

26. Invaliding out of service. - A Sailor who by bodily or mental infirmity is incapacitated
for the service in his branch or in any other branch to which he may be invalided out of the
service and granted such invalid pension as may be admissible under the regulations.

27. Reversion in rank.- (I) If after due trial in his rank a Master Chief Petty Officer, Chief
Petty Officer, Petty Officer or leading sailor is found to be inefficient or unsuitable for his rank,
fie may be reverted by his commanding officer to a rank immediately below that held, if no
reduction in confirmed rank is involved. If such a sailor has been confirmed in his rank or if it is
necessary to reduce him by more than one rank, prior approval of the Chief of Naval Staff shall
be obtained.

(2) No sailor is to be reduced to any rank in his own branch or to any lower class in his rank
below the limits specified in the regulations nor lower, either actually or relatively, than the rank
in which he first joined.
(3) Reversion to a lower rank is never to be used as a means of dealing with an offence. But
the character of the offences for which a sailor has been punished may be such as to show that the
individual is professionally unsuitable or inefficient for the rank he holds, in which case he may
be reverted as stated in this rule.
(4) Reversion is not to be carried out by warrant nor included in the punishment return as it is
not awarded as a punishment. The cause for, reversion is however to be noted in the sailor's
service certificate
 Sub rule (1).- After due trial in his rank means the testing of his performance and efficiency in
the rank held by him and it does not mean judicial examination either by court martial or
summary trial.

28. Re-advancement of men reverted.-(1) Sailors, who have been reverted in accordance
with the preceding rule, are eligible for re-advancement in accordance with the provisions of this
rule and as specified in the regulations.

(2) A man reverted by more than one step is to be re-advanced by successive steps only
through the ranks previously held.

(3) Time served in a higher rank is not to count for any purpose connected with re-
advancement, except for the periods of continuous "Very Good" conduct as required by the
regulations for re-advancement.

(4) A man, after reversion, will be required to re-qualify as specified in the regulations in the
professional subjects in which he was found lacking or in both.

NOTE

As regards re-advancement, see N.R. 0984.

CHAPTER V

SERVICE PRIVILEGES AND CONDITIONS

PART (I)-REPRESENTATIONS AND COMPLAINTS

29, Combinations. –(l) All associations and combinations of officers or men formed for the
purpose of bringing about alterations in the existing rules, regulations or customs of the service,
whether affecting their interests individually or collectively, are prohibited as being contrary to
the traditions and practice of the service and injurious to its welfare and discipline. [See also rule
38 (2)]

(2) Every person is fully authorized individually to make known to his superior any proper
grievance or cause for complaint, but individuals are Dot to combine, either by the appointment
of committees or in any other manner, nor are they to sign collectively memorials, petitions or
applications, nor to obtain signatures to such documents.

NOTE

See notes to section 23. The procedure for making complaints laid down

in this and the subsequent rules must be strictly adhered to.

30. Representations affecting welfare and conditions of service. Master Chief Petty
Officer, Senior Chief Petty Officer Chief Petty Officer, Petty Officer, or man who wishes to make
any representation affecting his welfare, or who has any suggestion to make connected with the
service, should bring the subject to the notice of his divisional officer through his divisional petty
officer.

(2) Whether the matter affects one individual or more than one individual, the procedure laid
down in sub-rule (1) is invariably to be followed, that is to say, each person must make his own
representation. The instructions in rule 29 are to be carefully observed.

(3) If the representation is one with which the divisional officer cannot himself deal, he shall
bring it to notice of the executive. officer (through the departmental officer, where applicable,)
and subsequently, if necessary, through him to commanding officer and so to higher authority as
circumstances may require,

(4) It is the duty of every Master chief Petty officer, Senior chief Petty officer, chief petty
officer, petty officer or leading sailor to keep himself informed of any grievance or cause for
complaint or dissatisfaction among the men, and to inform his divisional officers so that matter
may be investigated. A copy of this clause is to be kept permanently pasted on a notice board in
all the messes of the master chief petty officers, chief pet.tv officers and petty officers.
 (5) The instructions in this rule do not alter

(a) The procedure by which men may bring requests before Inspecting Officers at
inspections in accordance with the custom of the service;

(b) the custom by which any sailor is allowed to request through his
divisional officer, to see the commanding

officer with regard to matters of a private nature; or

(c) the custom by which complaints of an immediate nature

may be taken before the officer of the watch or the officer

of the day.

31. Complaints of personal oppression, injustice and ill-treatment. - (1) Every person
subject to the Ordinance who, is desirous of seeking redress for any grievance may proceed in the
manner set out in the following rules of this Chapter.

(2) No officer, Master chief petty officer, Senior chief petty officer, Chief Petty Officer, Petty
officer or man shall be penalised for having made a complaint m accordance with these rules.

(3) A gist of these rules, so far as it affects Master chief petty office, Senior Chief Petty
Officer, chief petty officers, petty officers and men shall be kept permanently displayed in an
accessible part of the ship for the information of the ship's company, to whom it is to be read out
quarterly.

NOTE

The administrative Authority during its inspection (N.R. 5020) is to ensure that provisions of
sub-rule (3) have been complied with.

32. To whom the complaint is to be made.- (I) If the complainant is the commanding
officer of a ship or naval establishment, his complaint shall be in writing and addressed to his
immediate superior.
 (2) If the complainant is an officer serving under the commanding officer of a ship or naval
establishment his complaint shall be made orally to the commanding officer in accordance with
the service custom whereby a complainant makes an oral request to see the commanding officer
for this purpose. Such requests shall be made through the executive officer and, if the
complainant is not the head of a department the request shall be made in the first place to the
head of his department.

(3) If the complainant is an officer whose case I is not covered by sub-rules (I) and (2), his
complaint shall be made to his Immediate superior, either oraly or in writing as may be
practicable.

(4) If the complainant is a Master Chief Petty Officer, Senior Chief Petty Officer, A Chief
Petty Officer, Petty Officer or man, his complaint shall be made orally to the commanding
officer. A request to see the commanding officer shall be made to the executive officer through
the complainant's divisional officer and head of the department. A sailor detached from his ship
or establishment shall make his complaint to the officer under whose immediate command he
may be at the time.

33. Assistance to the complainant. – If the complainant is an officer of junior rank a master
chief petty officer, Senior Chief petty officer, Chief Petty officer, petty officer or man, he may
request for an officer in his ship to advise and assist him in the statement of his case at all' stages.
If no such request is made, it shall be the duty of the divisional officer or such other officer, as the
commanding officer may detail, to give him assistance. The officer shall point out to the
complainant the provisions of rule 34.

34. Substance of complaints. - The complaints shall bear in mind that-

(a) complaints are to be confined to a statement of the facts complained of and to the alleged
consequences to the complainant himself:

(b) joint complaint, by two or more persons are not allowed each individual is to make his
own complainant;

(c) it is an offence against good order and naval discipline to make a complaint, either
oral or written, which includes a statement of fact which is untrue to the knowledge of the
complainant:

(d) it is an offence against good order and naval discipline to make a complaint in
terms which comprise language or comments that are disrespectful or insubordinate, or
subversive of discipline except in so far as such language or comments are necessary for
an adequate statement of the facts.
35. How the complaint is to be dealt with. - (l) On receipt of any complaint the
commanding officer or other officer receiving the same shall satisfy himself that the complaint is
made in accordance with these rules; He shall then deal with it in the exercise of his discretion in
such manner as may seem to him right, and cause the complainant to be informed of his decision.
(2) If the commanding officer refuses or is unable to remedy the complaint so made, the
complainant, may respectfully ask that he may be allowed to make his complaint in writing and
on receiving the request, the commanding officer shall give the complainant 24 hours to
reconsider the matter. The complainant while still having the assistance of the officer referred to
in rule 33 may then address his complaint in writing to the commanding officer, who shall then
forward the complaint to his next superior officer, together with his own remarks thereon, to be
dealt with in accordance with the preceding sub-rule.
36. If the complainant is not satisfied - If the complainant is

not satisfied with the decision on his complaint, he may request that it be forwarded to the next
superior authority and so on to the Chief of Naval Staff and finally to the Government to be dealt
with in accordance with rule 35, and all such requests shall be complied with. The complainant is
only justified in appealing direct to a superior authority when the authority to whom such a
request is made has neglected or refused to forward the complaint;

37. Complaints against punishments. -Any man who wishes to make a complaint against
a punishment should do so as early as practicable whilst it is still possible to ascertain the facts,
and explore fully the grounds of his complaint. Complaints should not be delayed until
completion of the punishment.

PART (2) - MEMBERSHIP OF POLITICAL ORGANISATIONS AND

COMMUNICATION TO THE PRESS

38. Trade or labour unions.- (I) No officer or sailor shall be a member of or be associated in
any trade union or any class of trade or, labour unions except as. provided in sub-rule (2).

(2). Ex-merchant service personnel, engaging to serve in the navy may continue to remain
members of their respective trade unions for the purpose of furthering their interests in the
merchant service. They may not, however, in pursuance of these purpose do anything calculated
to embarrass the navy not are they permitted to utilize their membership for the purpose of
bringing about alternation in the existing rules regulation or customs or conditions of 'service in
the navy. No combination can be permitted in the navy for such purposes

NOTE
See section 21 and note thereto.

39. Assistance to organizations – Officers and sailor are not permitted, without the express
sanction of the Government, to assist officially or take officially or take official cognizance that is
not recognized part of the navy, or any other force administered by the Government.
 40. Political meetings and candidature.-(I) No officer or Sailor is allowed to join a political
party or to speak or appear on the platform at, or take any active part in any meeting or
demonstration held for party or political purposes, or to act as a member of a candidate’s election
committee, or in any way actively to prosecute a candidate's interest, or to distribute or
disseminate any electioneering literature, or belong to or subscribe in aid of any political
association or movement, until his services have duly terminated. Leave preparatory to retirement
is not termination of service for the purpose of this rule.

(2) No officer or Sailor is permitted to issue an address to electors or in any other manner to
publicly announce himself or allow himself to be publicly announced as a candidate or
prospective candidate, for election to a legislative body or political constituency until his services
have been duly terminated.

(3) An officer or Sailor who desires to stand as a candidate for any political constituency, shall
make an application through the usual channels, to retire or resign or to be discharged. The
approval will depend on the exigencies of the service. If approvals is accorded, the officer or
Sailor shall be treated as retiring or resigning voluntarily or being discharged, and will have no
right to be reinstated in service on failure to secure election.

(4) No election agent or any representative; whether paid or unpaid, or any candidate or
prospective candidate for election to any municipality or other public body shall be allowed on
board any naval ship or establishment for the purposes of holding a meeting or debate, or
delivering an election address or canvassing or distributing election literature.

41. Communication to the press etc. - No officer or sailor shall publish in any form
whatever, or communicate directly or indirectly to the press, or to any broadcasting organisation,
any information or his views on any subject, or publish or cause to be published any book or
letter 'or article, whether purporting to be fiction or fact, or produce or present plays speeches,
lectures gramophone records, film or broadcasts, without prior permission of the Chief of Naval
Staff or any other officer specified by him in this behalf.
 CHAPTER VI

DISCIPLINE

PART (1) - ARREST

42. Arrest, - (I) No person either on board a ship or in naval establishment shall be authorized
to arrest any other person subject to the Ordinance, except in accordance with section 89.

(2) When an officer or man is placed under arrest, the commanding officer shall take due care
that no more restraint is put upon his personal liberty than the discipline of the service requires
and

the nature of offence may render expedient. Arrest is not a punishment but merely a means of
ensuring the safe custody of an offender until he can be dealt with adequately according to law.

(3) All altercations with excited or drunken men are to be avoided and no man under the
influence of temper or drink' is to be, placed in a situation likely to excite him further, and
thereby lead him to acts of violence or insubordination.

43. Arrest of officers. - (I) An officer who disobeys an order or otherwise misbehaves may
be placed under arrest. When this happens, the commanding officer is to report the circumstances
to his superior authority as soon as possible. If the charge is later withdrawn, the officer is to
return to his duty without prejudice to the investigation of any complaint he may make.

(2) If the commanding officer, or other superior officer, decides that service requirements
make it necessary to release the officer from arrest without withdrawing the charge against him,
the officer is to return to his duty without prejudice to any subsequent inquiry or to any future
disciplinary action;

44. Eight-day reports. - (I) Whenever a person remains under close arrest for more than
eight days without being tried summarily or without a court-martial for his trial being ordered to
assemble, a specia1 report on the reasons for further delay shall be made by the commanding
officer to the convening authority, a copy being sent to the Naval Headquarters (Naval Law
Branch). Both report and copy are to be forwarded by the quickest method which is reasonably
available. On receipt of the report the convening authority is to satisfy himself of the necessity for
continued retention of the accused under close arrest.

(2) A similar report (with copy to the Naval Headquarters) is to be rendered in a similar
manner on every eighth day until the man is brought to trial or released.
 (3) After receiving copies of three such reports in a particular case, the Naval Headquarters
will take such action as may be appropriate to expedite the trial or to effect the release of the
accused from arrest.

(4) Where by reason of a ship being at sea or for other good cause, it is impracticable to
submit an eight-day report to a convening authority without undue delay, it 'is to be submitted to
the senior officer present, who is to take the action mentioned in sub-rule (I), In such cases copies
of all eight-day, reports submitted superior authority shall be furnished to the appropriate
convening authority as soon as contact, can reasonably be re-established.

(5) No accused person shall be kept Under close arrest for more than 90 days without a court-
martial having been assembled for his trial, and at the expiration of such period he -shall be
released from arrest and shall not be re-arrested for the same offence except-

(a) on the written order of an officer having power to convene

a court-martial for the trial of the offence; or

(b) on the written order signed by on behalf of the Chief of, Naval Staff; or
(c) on receipt through official channels of information that an order as at (a) or (b) has been
signed. Such an order may authorize immediate rearrest of the accused for a further term
not ,exceeding 90 days if the nature of the charge requires retention in close arrest without
a break.
NOTES
1. It must be noted that the detention of a person for more than 90 days in close arrest become
illegal, unless either a court-martial has actually assembled for his trial, or a written order for his
further detention has been signed by the competent authority.

2. Form of Special Report- as given in the Second Appendix to the rules is reproduced
below:-

From:-
To:-
Date:-
Reference:-

Special report under Section 90 (3) of the Navy Ordinance 1961

1.leftleft,...(No., rank, name, branch, ship/establishment of the accused)..... .. . . . .. . . . .. . . . .. .. ..

was taken in naval custody on..........

.…………....and has been placed in open (close) arrest.

The charge (s) against him is (are) as follows:-

 (Give the statement of the offence and the particulars of the act, neglect or omission constituting
the offence.)

2. The reasons justifying the detention of the accused in custody and preventing the
investigation are as follows:

…………………………………………………………………

…………………………………………………………………

Commanding Officer

45. Naval Custody.- (1) The commanding officer is responsible for the safe keeping of
every person offender, or prisoner who is placed in naval custody in the ship or establishment;

(2) Such custody may be open or close, according to the circumstances of each case and at
the discretion of the commanding officer, it being clearly understood that open custody involves
only such restraint as may be necessary for safe-keeping, whereas close custody involves
deprivation of all liberty and , requires continuous supervision;

(3) No gags shall be used and men who are noisy or violent may be confined to a cell for such
time as may be necessary.

(4) Handcuffs shall be used as seldom as possible and only for ensuring safe custody and
every effort shall be made to reduce to a minimum the period during which handcuffed offenders
are borne in public view.

PART (2)-INVESTIGATION OF OFFENCES

46. Investigation of Offences. - (1) The preliminary investigation of offences by the officer
of the watch or officer of the day is to take place as soon as possible after the commission of the
offence while witnesses memories are still fresh. The formal investigation of offences is, when
the service and circumstances admit, to be deferred until the day following that of the
commission of the offence. Hasty charges are invariably to be discouraged but no avoidable delay
should take place in the investigation of a charge or in signing and reading the punishment
warrant. Investigation and punishment for mutiny, however, may take place at any time when
immediate example is necessary.
 (2) All charges shall be investigated as fully as possible on the quarterdeck or other suitable
place, in the presence of the complainant and the accused, both of whom aDd their witnesses
shall be heard as fully and impartially as possible. When, a master chief petty officer, chief petty
officer or sailor is brought before an officer as' an offender or @fauIter he shall take off his cap.
(3) The accused, his divisional officer or other friend (see rule 47), the complainant (if he is
not a witness) and the master-at-arms (or the person performing his duties) are to be present
throughout the investigation. The witnesses shall be kept apart and out of earshot so that they
cannot hear what other witnesses say in the course of evidence; they shall, if possible, be kept
apart from the witnesses who have not yet given their evidence; and they shall be prevented from
discussing any evidence already given. When the complainant is a witness, he shall normally be
treated as such.

(4) When the executive officer is a material witness he is not to present the case to the higher
authority and this duty shall be preformed by another officer. In minor or simple cases, there is
no objection to the officer of the watch, although a witness, presenting his case to the higher
authority, but this shall be avoided in serious or complicated cases. When the officer of the watch
is a witness as well the complainant, his evidence shall be taken and completed before that of
other witnesses. If the master-at-arms (or the person who normally performs his duties) is a
witness, he shall be treated as such and another person shall, be detailed to perform the functions
of the master-at-arms at the investigation.

(5) The investigating officer shall in every case consider whether or not the case is sufficiently
serious to warrant the recording of the statements of witnesses and\whether or not it is desirable
to record it as a precaution against any witness changing his statement.

NOTE
Sub-rule (S).-A written record of the evidence is more satisfactory not only from the point of
view of the accused who is thus in a position to know exactly what has. been alleged against
him, but it is also mo~ satisfactory from the point of view of the higher authorities who can thus
ensure that there has been no miscarriage of justice as a result of a hasty or any arbitrary award
of punishment. See also rule 50(3).
47. Assistance to the accused.-If the alleged offence is one which may be brought before the
commanding officer, the accused may request, and is to be afforded at the earliest steps at which
this is practicable, the assistance of any officer or other person in his ship whose assistance is
reasonably available. If no such request is made, it is the duty of the divisional officer or such
other officer as the commanding officer may detail, having regard to the requirements of the case
to advise the accused at all stages. The officer or other person assisting the accused may exercise
on his behalf the accused right to cross-examine witnesses for the prosecution and examine
witnesses for the defence. The officer or person advising the accused may be changed at any
stage either at the request of the accused: or because of the exigencies of the service.
48. Procedure at investigation;-(l) At all investigations the evidence in support of the charge
shall be heard first. Immediately after the charge has been read out, the investigating officer shall
warn the accused that he should not make any statement until all the evidence against him has
been heard.
(2) During this stage of the proceeding the accused (for his divisional officer or other friend
see rule 47) shall however, be permitted to cross-examine the witnesses who have given evidence
in support of the charge and it should be made quite clear that the accused shall have the
opportunity of speaking on his own behalf after the completion of such evidence.

(3) On conclusion of the evidence in support of the charge the investigating officer shall
decide whether or not a case has been made out against the accused. If in his opinion no Case is
made out, the investigating officer shall either dismiss the case or, if further evidence is likely to
become available, stand it over. If there is a prima facie case and it is a simple one with which the
investigating officer thinks he can deal himself, he shall ask the accused if he admits the charge.
If the accused does not admit the charge and the matter is within the investigating officer's
powers. of punishment, he shall inform the accused that he will now proceed to try the case,
giving him an opportunity of making a statement and calling witnesses.

49. Investigation by the officer of the watch, the officer of the clay, or the executive officer--
(n If, after hearing the evidence in support of the charge(s), the officer of the watch, the officer of
the day or the executive officer concludes that the charge(s), if proved, would be beyond his
power to punish, he shall bear in mind that a confession made before him by the accused will not
be admissible in evidence at any further proceedings unless the accused has been cautioned,
before he speaks, that he is not obliged to say anything unless he wishes to.. do so, and that any
statement he .may make , may be given in evidence. Care shall be taken to avoid any suggestion
that the accused's answers can only be used in evidence against him, as this may discourage an
innocent person from making a statement which might help to clear him of the charge. The
investigating officer" shall also bear in mind that incases beyond his powers of punishment his
functions are to see whether there is a prima facie case; to collect evidence when it, is important
that evidence be collected immediately; and, in cases likely to lead to at least a warrant
punishment, to give the accused a chance to make a statement and to call witnesses if be wishes
to do so. If the alleged offence is one which is likely in itself to lead at least to a warrant
punishment (as distinct from one which may lead to a warrant punishment because it is the
culminating offence in a series of minor offences), the investigating officer shall address. the
accused in the following words after hearing the evidence in support of the charges :-

"I have now heard the evidence in support of the charge (s) and the case will have to be
decided on the evidence. You may wish to make a statement, in answer td the charge(s),
you are not bound to make a statement, but if you do, anything that you say may be taken
down in writing and given in evidence if there are further proceeding.

If. .. ...leftleft(his divisional officer or other friend) speaks for you, what he says will be
recorded. You may wish at this stage to reserve your defence, or to call witnesses; such
witnesses may be cross-examined and their evidence may be taken down. You are entitled to
take any of these courses.

The officer of the watch or the officer of the day need not use these words unless he decides to
hear the defence before sending the case to the executive officer.
(2) If at any earlier stage in the investigation the accused shows any desire to make a
statement, as distinct from merely asking a witness a question, the investigating officer shall at
once caution him in the following terms:-
 "Before You speak, it is my duty to tell you that you are not obliged to say anything
unless you wish to do so; but whatever you say will be taken down. in writing and may
be given in evidence."

Even if this caution has already been once given, the investigating officer must warn the accused
at the appropriate time in the longer form given in sub-rule (I)
(3) If the accused makes a statement, it shall be taken down iii

writing. On conclusion of this statement the investigating officer shall not ask any question save
to point out any ambiguity and ask if the accused wishes to clear it up, or to point out that no
reference has been made to some charge and ask if the accused wishes to say anything about it. In
particular, nothing shall be said to suggest or indicate that the accused is expected to make any
further statement.

(4) If he has not already done so, the officer shall then determine whether or not a case
against the accused has been made out, and if he decides that no case has been made out, he shall
dismiss

the charge.

(5) If the investigating officer decides to refer the case to higher authority, the accused shall
be informed: "Commander's report" or "Captain's report" as the case may be.
(6) Any statement in answer to the charge shall then be read out to him and he shall be asked
to sign it. Whether the accused signs the statement or not, it shall be counter-signed by the
investigating officer and it can then be proved and used at any further investigation or trial.

NOTES

1. Form S. 241 "Report of Offender" (reproduced below) is to be prepared for each accused
sailor, entering therein the charges, as well as other information regarding names of witnesses,
divisional officer etc. Legal exactitude in framing of the charges is not necessary during summary
investigation and trial so long as the charges are so worded that the accused fully understands the
offence for which be stands charged. The name and designation of the investigating officer is also
to be entered in the appropriate columns. He is to write down his decisions/award of punishment
on completion of each hearing, as well as sign and date it.

2. These forms are to be maintained separately in a file for each quarter and are to be produced
at the inspections carried out by the Administrative Authority (N.R. 5020).

3. In the course of an investigation, the accused must in no case be authoritatively called on to

account for his actions; nor must his statement be taken an oath or affirmation. If the accused
declines to sign his statement, he must not be compelled or ordered to do so. The counter-
signature by the investigating officer is sufficient to prove, if required at a later stage, that the
accused made the statement.
 PAGE NO 393 last missing

warrant punishment or a court-martial, act as prosecutor, to examine witnesses for the

prosecution and to cross-examine, if necessary, those for the defence.
(2) If the commanding officer considers that the offence or offences may lead to a warrant
punishment or a court-martial or if the accused may eventually have the right of electing trial by
court- martial (see rule 51), the evidence shall be recorded in writing referred to
hereinafter as summary of evidence, in the following manner:
(a) every witness, whether for prosecution or for defence shall be administered an oath or
affirmation by the commanding officer in the same form and manner as provided for a
court-martial;
(b) the evidence of the witness and the statement, if any, of
the accused shall be recorded in Bengali read over to and signed by the persons making
them and countersigned by
the commanding officer~ If the correctness of any part of
such a summary of evidence is, on its being read over to
him, denied by him the commanding officershal1 make a memorandum to that effect and
shall add such remarks as he thinks necessary.
(3) The commanding officer may in his discretion apply to sub-rules (1) and (2) in less
serious cases.'
(4) The principles of role 48 shall apply to all investigations by the commanding officer, and
those of rule 49 to investigations by the commanding officer of charges which, because of the
gravity of the alleged offence, are Likely to lead to a trial by court-martial .If, after hearing the
evidence in support of the charge (s), the commanding officer decides that there is a prima facie
case that the charge ( s),. if proved, would be within his power to punish, he shall proceed to try
the case, bearing in mind, in appropriate cases, the provisions of rule 51.

(5) When the commanding officer has made up his mind to try a case and the charges if
proved, would merit at least a warrant punishment, he is to address the accused as follows after
hearing the prosecution's case. This warning must be given in all cases, in'\ eluding any case in
which the accused may eventually be given. the option to elect trial by court-martial, even though
the caution in sub-rule (2) of rule 48 may already have been given, namely:

"I have now heard the evidence in support of the charge(s) and the case will have to be
decided on the evidence. You may wish to make a statement, is answer to the charge (s).
you are not bound to make a statement but if you do, any thing that you say may be taken
down in writing and given in evidence if there are further procee dings If (his
divisional officer or other
friend) speaks for you, what he says shall be recorded. You may also produce witnesses any
evidence given by them may be cross-examined."

(6) If the accused then makes a statement or calls witnesses for the defence the witnesses shall
be liable to cross-examination by the prosecutor and re-examination by the defence.

(7) Any person who is not subject to the Ordinance may be summoned to attend as a witness
in the same manner, as provided for a court-martial, under the hand of the commanding officer
of the accused. The summons shall be in the form set out in the Fourth Appendix to these rules.
(8) .If a person cannot be compelled to attend as a witness, or if owing to the exigence of
service or on other grounds, including the expense and loss of time involved, the attendance of
any witness cannot in the opinion of the commanding officer to be Certified by him in writing,
be readily procured, a written statement of his evidence, signed by him and countersigned, in
case of a person subject
to the Service Law by his commanding officer and in case of a
civilian by any magistrate, may be read to the accused and included
in the summary of evidence.

(9) If the commanding officer decides to apply for trial by court-martial or to give a warrant
punishment which requires approval the accused is to be told that the case is "remanded"

(10) If the accused is remanded for trial by court-martial the commanding officer shall
without unreasonable delay apply in the form set out in the Fourth Appendix to these .role to the
proper naval authority to convene a court-martial, and such reference to superior naval authority
shall ordinarily be made within forty-eight hours of the accused being remanded. .

NOTES

1. After hearing the evidence against a Sailor brought as a defaulter before the commanding
officer three courses are open to him namely;

(a) he may dismiss the charge, if he finds that the evidence does not disclose a prima facie case:

(b) he may decide to try the offender summarily, if be is of the opinion that the charge(s)if
Proved, would be within his power to punish. In deciding ,to do 10. Be must bear in mind the
provisions of rule 51: or

(c) he may apply for trial by court-martial to the proper naval

2. (i) Every offence which, a person subject to naval law can commit is an offence under. the
Ordinance becaus6 it is either a service, offence, that is to say and offence punishable under
sections 29 to 77. or civil offence punishable under section 78.
(ii) He must consider whether, having regard to the limitation of time prescribed by section
105 of the Ordinance, the accused is liable to bc proceeded against.
(iii) The commanding officer must dismiss' the charge if there is no evidence of any offence
under the, Ordinance, of if the accused has been previously convicted or acquitted of the alleged
offence by any court, naval or civil, or has been summarrily dealt, with. It is of course within the
discretion of the commanding officer to dismiss a charge if he considers that the evidence is
doubtful or the case triable or if for any other reason amend the charge if the evidence before him
discloses a different one, or he does not consider. it desirable that the charge should be proceeded
with .
3. Under section 116 police and other civilian witnesses may be summoned to attend before a
commanding officer, if it is desirable to compel their attendance by service of summons. All
witnesses must be given an oath or affirmation in the same form and manner as. provided for a
court- martial (For forms of summons to witnesses and forms of oaths and affirmation, see fourth
Appendix)

4. As to the procedure where a crimina1 court and a naval tribunal both have jurisdiction 'in
respect of a civil offence, see section 107 and rulea2S0 and 286.

5. Sub rule . (7)-The summons to a witness to attend the summery trial shall be signed and dated
by the commanding officer in the following form as set out in the Fourth Appendix' of the rules:

To

…………………….(name and address)……………………………

Whereas a charge of having committed an offence triable by naval

tribunal has been preferred before me against…………………………..

(number. Rank name, ship/establishment) and whereas I have decided to try him summari1y
and have directed a summary evidence to be taken in writing at ,……. .(place), on the.. ... . . .
.. .. . . .day of.,......19………..at……….hours:

I do hereby by summon and require you……...(name)rightright:…………..... to attend as at

witness at the said place and hour/[and to bring with you the document(s) specified' on the
reverse hereof ].

Whereof you shall fail at your peril.

Given under my hand at ..leftleft.leftlefton the..................................day

Of……………………………. 19…………..

(Signature)
Commanding Officer of the accused

6. Sub-rule, (8):

(i) The provisions of this sub-rule will, in many cases, save time and expense, e .g,
where a civilian witness is required to prove some fact not really in dispute.

(ii) The commanding officer must append ,his certificate in writing it can conveniently be
added below the written statement of the absent witness or attached to the summary of
evidence on a separate sheet of paper.

(iii) H it
is
necessary
to call at
the trial
some
witness secution whose evidence is not included in the summary, an abstract of the
for the evidence proposed to be given by him should be supplied to the accused as early as
pr0 possible: see rule 206.

7. The provisions of sub rule (2) may be suspended by the senior officer present on the grounds
of the exigencies of service or the necessities of discipline vide rule, 134; but such an order must
be made under his band specifying the nature of such exigencies and necessities, (see Form B-3.
as set out in the Fourth Appendix).
 8. The Commanding officer is to investigate offences committed by an officer in the manner
laid down in this rule. If ho considers the offence to be serious enough to lead to a trial of the
accused officer either summarily (under rule 119) or by court-martial, he is to record summary of
evidence in the same manner and inform the Administrative Authority at the earliest.

9. The Commanding Officer is to apply for a court-martial on the following form as set out in
the Fourth Appendix to the rules:-

B . N. S ……….. Date……………..19………………….

Application for a ……………… court martial.

Sir,

I have the honour to submit.............charge(s) against..............

………… .(No………...rank...............name…………………branch) of

B.N.S…………... under my command, and request that a………... court martial may be
assembled for his trial at………………………….

(1) The accused bas elected to. be tried by a "court-martial under rule ………………...(a).
.

(2) The case was investigated by. .. .. .. . .. .. ……….. rightright.. .. …. .. .. (b)

(3) The summary of evidence was taken byrightright………………….…….

(Norightright……………..rank ………………..namerightright.ship/establishment.)

(4) A board of inquiry was held on…………………………… ...(c).

The constitution of the board was as follows:---

President…..………..No………...rank ………

Name………..ship/establishment).
 Member…………..(No. …...rank......................

Name………..ship/establishment).

(5) The accused is now at..........................................................................

(6) enclose the following documents………………………………....(d)

(i) Charge-sheet, original andrightright…………...copies:

(ii) Summary of evidence, original andleftleft………..copies;

(iii) Original Exhibits;

(iv) List of witnesses for the prosecution and defence;
(v) List of Exhibits;
(vi) Statement as to character and conduct sheet of the accused in
original…………………… (e).
(vii) Statement by accused as to whether or not he desires to have an officer assigned by
the convening officer to represent him at the trial. .. .. . .. . .. .. . [see rule 128 (2)].
(viii) The accused is in close/(open) arrest/(not in arrest) .
I have the honour to be.
Sir.
Yours obedient servant.
(Signature of Commanding Officer).

To

Medical Officer’s Certificate

I certify that…………(No. . . ……... . . . .. . .. . .. .rank. . . . ... ...

Name………………….,branch………..ship/establishment)is................

to undergo trial by court-martial.

(Signature of Medical Officer)

*Insert`` fit” or ``unfit

(a) Strike out if not applicable.

(b) Here insert name 'of the officer who made preliminary inquiry into the case.

(c) To be filled in if there -bas been a board of inquiry respecting any matters connected
with the charge(s); otherwise to be struck out;……………......[see rule 133 (2)].

(d) Any items not applicable to be struck out.

(e) To be returned to the Commanding Officer with the convening order.

10. The Commanding Officer is also to make out a statement as to character and particulars of
service of the accused in the following form-as set out in the Fourth Appendix to the rules:

FORM OF STATEMENT AS TO CHARACTER AND PARTICULARS

OF SERVICE OF THE ACCUSED

(i) Officers:

FORM OF STATEMENT AS TO CHARACTER AND PARTICULARS

OF SERVICE OF THE ACCUSED

(i) Officers:
1. Name.
2. Rank.
3. Date of birth.
4. Ship or Establishment.
S. ' Typo and branch of commission.
6. Date of first commission.
7. Dates of promotion.
8. Previous service as a sailor, if any.
9. ' Foreign service and war service.
10. Orders, decorations and medals:
 (a) Nature of award.

(b) Service for which awarded.

1 1 , Mentions in dispatches, commendations and favorable reports. 12. Wounds.

13. Summary punishments under section 103 of the Navy Ordinance, 1961
14. Court-Martial entries.

15. Retired pay, pension or gratuity. ,

This is to certify that the foregoing is a true extract from the record of the above named
officer.

Dated. . . . . . . . . . . ……. . . . (Signature) Officer i/c Records (Officers),

Bangladesh/Navy

To be completed local/y before trial

16. Period awaiting trial…………..days.

In naval custody of open/(close) arrest …………….days.

In civil custody close arrest……………..days.

Total……….days. of which……..days
were spent in hospital

Dated ………………… (Signature) Commanding Officer

(ii) Sailors:

No…………., rank………….., name…………., ship/establishment.

(1) The following is a fair and, true extract of summary

punishment mentioned in sub-rule

 (3) of rule 106, of convictions by court-martial or a civil court.(State
particulars of each offence,

with punishment and date 01 award, in chronological

order). If no punishment recorded state. (Nil)

(2) Mentions of gallantry.or distinguished conduct.

(3) Wounds.

(4) The accused is not under sentence at the present time.

OR

The accused at the present time is under sentence for ……………......... beginning on
the……….day of…….19....................

(5) The accused bas been in confinement, awaiting trial on the present charge(s),for…….... days
in civil custody, and………days in naval custody, making a total of …………. days in custody,
of which……….. days were spent in hospital.

(6) The present age of the accused according to his certificate of service is. . . ...

(7) The date of his enrolment specified in his certificate of service is …………………..and
the date of his attestation is..............The date of his re-engagement (if any) is................

(8) The service which the accused is allowed to reckon towards is charge or transfer to the reserve
is :..............................

(9) The accused is entitled to…………...gratuity in respect of........years service.

(10) The accused is entitled to reckon. . . . . .. . . .. .years service for the purpose of
determining his pension. etc.

(11) The accused is in possession of, or is entitled to no military naval or air force decoration
or reward, which the court can forfeit; or, is in possession of, or is entitled to. . . . . . . . . . . .
(State any military, naval or air force decoration or reward).

(12) The accused has served as a Master chief petty officer chief petty officer /(petty officer)
continuously without reduction to the present date:-

Date of Advncement.
In the rank of…………..years

In the rank of…………..years

(Signature)Commanding Officer.

Instructions :-(1) If any matter in any of the above paragraphs cannot be stated from the
service books, the paragraph must be struck through.
(2) The conduct ,sheets are to be produced in court with this statement, but are not to be
annexed to the proceeding.)

51. Right to elect trial by court-martial.-{l) If a .Master chief Petty officer, chief petty
officer or petty officer is charged with an offence which, if proved, would justify his being
summarily,

punished by one or more of the following:

(a) Imprisonment;
(b) Dismissal from the service;
(c) Detention;
(d) disranking;

the procedure prescribed in this rule shall be followed.

(2).Both before and during the investigation the accused shall be

afforded the assistance required under rule 47.

(3) If the commanding officer thinks that the proper punishment for the offence should it be
proved, would be at least disranking, or, for a man who cannot be disranked, detention, he shall
at the conclusion of the investigation inform the accused in the following terms:-
"I consider that this charge, if I hold that it is proved, and decide to convict you, would justify
your punishment being at least disranking or detention (as appropriate), but before I reach
and announce my findings I have to inform you that you can, if you wish, be tried by court-
martial, and I have to give you not less than 24 hours for the purpose of making up your
mind about it, during which time I will consider the matter further."
(4) When a Master chief petty officer, chief petty officer or petty officer who cannot be
disranked is to be dealt with summarily for an offence other than an offence set out in rule 80, the
only punishment which may be awarded by the commanding officer, and at the same time give to
the accused the option to elect trial by court martial, is dismissal , and in such cases the
commanding officer when giving the accused the option to elect trial by court-martial, shall omit
the words "at least" from the form set out in sub-rule (3)

(5) If the accused, after the specified period, indicates that he does not elect to be tried by
court-martial, the commanding officer, shall in case he finds the accused guilty, deal with the
case himself and take necessary steps for obtaining approval of the punishment to be awarded.
Every warrant shall be accompanied by the summary of evidence

(6) Should the accused elect to be tried by court-martial, necessary measures in that behalf shall
be taken.

NOTE
The punishments mentioned in sub-rule (1) are the major punishments which a commanding
officer is empowered to award summarily to a sailor under his command. If anyone or more of
these punishments are proposed to be awarded to a master chief petty officer. chief petty officer
or a petty officer an option must be given to the accused to elect trial by court-martial, otherwise
the award would be illegal.

52. Medical examination.-(1) When a person is charged with the offence of drunkenness,
indecency, affray or of causing hurt or such other offence as may be specified in the regulations
he, and every other person directly concerned or affected by the offence, shall, as soon as
possible, be medically examined .

(2) A sailor may be ordered to pres.ent himself for medical examination; and failure to
comply with such order or with the instructions of the medical Officer shall amount to
disobedience and may be dealt with accordingly; but no force shall be used for the purpose of
subjecting any person to medical examination against his wishes.

53. Identification of suspects.-(l) When an offence has been committed and it is possible that
witnesses may not be certain of the identity of the person apprehended, an identity parade shall be
held. The accused is to be fallen in with, if possible, at least eight other person of the same or
similar height, age, appearance and rig as himself. The accused' shall be allowed to stand where
he pleases and shall be asked whether he has any objection to the arrangements. His divisional
officer or the officer or other person who may have been ,appointed to advise and assist him (see
rule 47), shall attend, but other spectators shall be excluded

(2). Such witnesses shall be admitted to the parade one by one and asked to identify the
suspect, and their reactions shall be recorded. If a witness so desires, any or all of the persons on
the parade shall be ordered to remove or replace his cap, speak, walk, or do anything else that
may help identification, and all such actions shall be recorded. After every witness has
withdrawn, the accused shall be given an opportunity "to change his position in the rank and the
witnesses called one by one to identify again. Witnesses who have inspected the parade shall be
segregated from those who have not. Steps shall be taken to ensure that no witness sees the
suspect before he is fallen in with others in the position of his choice and that no witness sees his
photograph or is given any description of him before the parade.

54. Documentary evidence.-No person shall be convictcd. on the basis of documentary

evidence alone, except where he admits

the charge and the presence of necessary witness cannot be easily secured; and in the case of
every such conviction the facts of admission of the charge by the accused and the conviction
being based on documentary evidence alone shall be expressly stated in the warrant of
punishment. If the accused does not admit the charge and the presence of necessary witnesses'
cannot be easily secured in the ship or establishment to which h~ belong, he may for facility of
investigation be drafted temporarily to the ship or establishment in which', the offence is alleged
to have been committed.

55. Accused sick or in civil prison.-Should the accused be on the sick-list; or serving a
sentence in a civil prison, the investigation may, if the commanding officer so thinks fit, be
postponed so long as the accused remains unfit for duty or continues to serve the sentence.

56. Security of service documents.-(l) The service documents of the accused shall not be
scrutinized by the commanding officer or investigating officer until the accused has made his
statement or expressed his intention not to make a statement.

(2) The commanding officer or the investigating officer. having

decided whether or not the case against the accused has been made out, may examine his service
record in order to decide whether to deal with the case himself or refer it to higher authority; and
such examination shall not be deemed to be conviction of the accused.

57. Regarding retention of an accused in close arrest.- (1) If a punishment warrant in

respect of an accused is referred to superior naval authority, or, if an application for his trial by
court-martial has been made, the accused shall not normally be kept in close arrest pending
disposal of such reference, or application unless.-
(a) the' offence charged is one for which the maximum punish ment is death, or
(b) The punishment proposed in the warrant is imprisonment

detention or cells or
 (c) the conduct of the accused is so violent that it would be unsafe to himself or to others
not to place him in close arrest, or

(d) the accused is found deliberately, trying to undermine discip1ine by acts of misconduct,
but isolated, instances of insubordination or violence shall not by themselves justify
retention in close arrest, or

(e) the accused has been a deserter, or is known to have habi tually absented himself
without leave and he is considered likely to absent himself again unless kept in close arrest.

(2) An aroused person, whom it is considered unnecessary to keep in

close arrest, may be placed in open arrest, if it is considered desirable in his own interest or
in the interest of service discipline that he

he should be kept kept under some restraint .

(3) In all other circumstances, the accused shall, pending the approval of the punishment Warrant
or disposal of application for trial by court-martial be at liberty, but nothing herein shall affect his
liability to be arrested at any subsequent stage.

58. Liability to further trial for same offence.-(l) when at, or as a result of, a formal summary
investigation of an offence the officer authorized to award punishment indicates by word or act
that he has come to a definite conclusion as to the guilt or innocence of the accused, e.g., by
forwarding a punishment warrant for the approval of a senior officer, or by dismissing the case,
accused cannot be tried again for the same offence.

(2) If the executive officer refers the case to the commanding officer, as requiring a more severe
punishment" that he is authorized to award, or if the commanding officer applies for the offender
to be tried by court- martial, neither of these facts is of itself a bar to a subsequent trial, provided
the precautions mentioned in these rules are taken. .

NOTE

See rule 145 as to the plea in bar of trial, and notes 2 to 6 thereof as

to autrefois acquit and autrefois convict.

 PART (3) -DESERTERS AND ABSENTEES

59. Apprehension of deserters and absentees.-(l) A sailor who quits - his ship without
leave, or overstays his leave, or improperly absents himself when detached on duty and who may
be Apprehended beyond the precincts of a dockyard or other government establishment in which
he may have been employed shall be charged as an absentee or as a deserter according to
circumstance. which shall be judged by the commanding officer;
(2) Every possible effort is to be made to check-desertion and absence without leave and by
lawful means to detect and apprehend deserters or absentees.

(3) Within Bangladesh, a warrant for the arrest of an accused shall be sent in accordance with
rule 62, to the police at the place where the accused is likely to be found, whether it is his usual
place of residence or not and action in that behalf shall ordinarily be taken not later than the day
on which the accused is marked "R'

(4) On the recovery of a deserter or absentee any warrant known to have been issued shall be
cancelled.

(5) If any sailor- is found absent without leave for more than seven days, the commanding
officer shall inform his next of kin by means of an airmail letter. Such letter shall mention that the
sailor has failed to report on board when he was expected and all the known circumstances
relating to his absence, and also state that necessary enquiries are being made and that the next of
kin shall be kept informed; but in no case, unless the facts have been ascertained beyond all
doubt, shall the sailor be described as missing or absentee in any such letter.
(6) In foreign waters, a report, giving brief particulars of the case and the description of the
man, and his photograph, if available, shall be sent to the Naval or Military Attache or Adviser of
the Bangladesh Mission in the appropriate foreign country requesting for permission and
assistance of local authorities for apprehension of a man who has deserted or remained absent
without leave in that country.

(7) No officer shall search any foreigt1 ship for any naval deserter or absentee, whether such ship
be in foreign waters or elsewhere, even if he has a warrant for arrest under section 93.

60. When absentees to be marked "Run":-(l) If any person absent himself from his duty
without leave and fails to give a good and sufficient reason. for his absence, 1 he shall be
checked to absence: on the ships books.
(2) If an absentee has not returned at the expiration of seven days or before his ship sails
during this period, he shall be marked "Run" and the letter "R" shall be placed against his name
on the ship's books on the day on which his absence began. While so marked "Run", he shall not
be entitled to receive the pay which has accrued unless the .court-martial or officer by whom he
is tried, or the Chief of Naval Staff shall otherwise direct.
(3) If any sailor is absent without leave when a ship sails, a copy of the warrant for his arrest,
together with the details of his current offence, shall be forwarded to the Administrative
Authority, so that the case may be investigated, in case he returns or is apprehended while the
ship is away.

(4) If the commanding officer is subsequently satisfied that there was no intention on the part
of such sailor to desert, he shall remove the letter "R" marked against his name, provided the
person has not been convicted summarily as a deserter, and shall also cause payment to be made
of the pay accrued, provided that no pay shall accrue where "R" is substituted by notation "shore"
under sub-rule (4), rule 248.
(5) Whenever' a person is convicted of desertion, the letter "R" shall be placed against his
name on the ship's books if not already done under sub-rule (2)

(6) When a person has been absent without leave for more than 30 days, the commanding
officer shall convene a board of inquiry to inquire into his absence and to record their declaration
in the ship's books. The commanding officer shall then authorize his transfer from the ship's
books to the books of the depot and also forward the absentee's service documents together with
the declaration of the board of inquiry. If the ship is likely to be away from the port for any
considerable period the commanding Officer may convene the board of inquiry and authorize the
absentee's transfer from ship's books at any time after the expiry of seven days.

61. Voluntary surrender.-(1) A deserter or absentee who voluntarily surrenders himself to a

naval authority may be dealt with under the Ordinance, whether or not a warrant for his arrest has
been issued, and without being brought before a magistrate.

(2) A deserter or absentee who voluntarily surrenders to the police shall be brought to a police
station. If it appears to the officer in charge of the police station that he has been illegally absent,
he may be handed over direct to naval custody, or may be brought before a magistrate, as the
officer in charge of the police station decides.

62. Arrest by naval warrant-The Chief of Naval Staff, the commanding officer of any of the
ships or naval establishments or any other officer empowered by the Chief of Naval Staff in this
behalf, may issue a warrant in the form set out in the Fifth Appendix to these rules to the police
for the arrest of any person to suspected of having committed an offence against the to ordinance
(see section 93).
NOTE

The form for the warrant of arrest, as set out in the Fifth Appendix. is reproduced below:

WARRANT OF ARREST

(Navy Ordinance, 1961, Section 93)

To.rightright.(name and

designation of the person (or persons) who is (or are) to execute the warrant;

And to all others whom he (or they) may call upon to assist him (or them)in the execution of this
warrant.

WHEREAS 1…………….………………am empowered by section 93

of the Navy Ordinance 1961, to issue a warrant for the arrest of a person suspected of any offence
under the said Ordinance;

AND WHEREAS……………………………………… a person whose

name and description are given below stands charged with the offence

of. .. . . . (state the offence):

 YOU are hereby directed to arrest the said……………...and to deliver

him into na1ll1 custody. Herein fail not.

DESCRIPTION OF THE PERSON TO BE ARRESTED

Name ......................................................................................................

Rank ………………………………………………………………......

Official Number…………………………………………………………

Ship or Establishment…………………………………………………...

Date of birthleftleft"""""""

Usual place of residence………………………………………………

Height .......................................................................................................

Complexion.leftleft.....................................................................

Hairleftleft,...................

Byes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Marks on person....................................................... Remarks (including any indication as to the

probable whereabouts of the offender).

Given under my hand at. .. . .. .. .. .. .. this the.. .. .. .. day of.. .. ..19.. .

 Signature
(Name and Designation)

63. Arrest without naval warrant.-A person arrested on suspicion of being a deserter or
absentee shall be taken before a magistrate is satisfied that there is sufficient evidence to justify
his being tried under the Ordinance, he shall cause him to be delivered to naval custody or
commit him until he can be so delivered. He may then be dealt with under the Ordinance.

64. Identification of deserters and absentees. - (l) When any deserter or absentee, whether
delivered to naval custody by order of a magistrate or by naval warrant or by voluntary surrender,
is brought before the commanding officer of one of the ships to which he does belong not be
dealth with summarily, a through investigation shall be made with a view to establishing his
identity and proceedings relating thereto shall at the same time be asked formally if he has any
statement to make and such statement, if made shall be signed by the offender and duly
witnessed. The accuracy of any such statement shall be tested carefully before the investigation is
closed.

(2) The written note of the investigation and the offender's statement shall form enclosures to
the punishment warrant.

(3) Due caution shall be taken in receiving men from foreign vessels who may represent
themselves, or are reported to be deserters from the Bangladesh Navy.
(4) Railway warrants shall not be issued nor any other expenses incurred in connection with
the apprehension of an alleged deserter or any enquiry or investigation relating thereto unless
action has been taken to confirm as far as possible, the naval identity of the individual and that he
is in fact recorded as an absentee or deserter.

65. Punishment and drafting of deserters and persistent leave breakers.-In punishing
deserters and persistent leave-breakers, whom the commanding officer regards as unlikely to
render any further useful service to the navy, he shall also consider whether in punishment of
dismissal from the service.

66. Forfeiture consequent upon desertion.-(l) All pay, bounty salvage, and allowances
which have been earned by a deserter, and all annuities, pensions and gratuities which may have
been granted to him sha1l be forfeited to the Government unless that tribunal by which he is
tried, or the Chief of Naval Staff otherwise directs. These forfeitures may in exceptional
circumstances be remitted but the reason for every such remission shall be reported to the Chief
of Naval Staff.
 (2) Nothing in sub-rule (1) shall apply to pay allowances and other moneys which except for
some accidental reason, should have been paid on the last regular pay day preceding desertion.

(3) The Chief of Naval Staff may at any time remit the forfeiture of any property that has not
been sold, or pay the proceeds of its sale to the former owner or his representatives. The Chief' of
Naval Staff, the court or the officer trying the offender may order the uniform and effects to be
restored.

(4) The period between the date of desertion and that of apprehension or surrender, shall not
be taken into account in determining the length of service rendered by a deserter.

67. Removal of 'R" by Chief of Naval Staff. - (l) A man who has completed the following
service with continuous "Very Good Conduct" may apply to his commanding Officer for the
letter "R" to be. removed:

(a) three years within 'five years of service after punishment for

desertion;

(b) four years within nine years of service after punishment for desertion:

(c) six years within any time; after Punishment for desertion d.

The said period of five or nine years shall be reckoned from the day after the completion of the
sentence served for desertion, or, if the sentence has been suspended before committal, from the
day after the award of the punishment.

(2) If the commanding officer considers the man's general behavior to have been satisfactory
and thinks it fit to recommend him for the concession, he shall forward t the application with an I
express recommendation for the consideration of the Chief of Naval Staff as soon as practicable
after the completion of the qualifying period of continuous service with "Very Good Conduct". If
the commanding officer does not think it fit to recommend a man, he sha1l inform him
accordingly and a note "Not recommend for removal of "R" sha1l be entered in his Conduct
Sheet. Belated applications shall give any known reason for the delay and also state whether or
not the man had previously applied. Original service certificate and conduct sheet sha1l
accompany every-such application.

(3) Where a man has deserted more than once, an application under clauses (a), (b) or (c) of sub-
rule (I) may be made for the removal of the last' R'. If this is approved, a man may being to qua-
lify for the removal of a previous 'R' under the same rules, the period of five or nine years being
reckoned from the date of removal of the last 'R' and similarly with any further marking of 'R'
 CHAPTER VII

SUMMARY TRIAL - SAILORS

PART (I)-POWERS OF COMMANDING OFFICERS

68. Summary punishments. - (1) The commanding officer of any naval ship or
establishment, which is an independent command, may subject to the provisions of this Chapter
award the several major punishments in accordance with section 102, that is to say :-

1. Imprisonment for a period not

exceeding three months
2. Dismissal from naval service.
3. Detention for a period not exceeding
three months.
4. Disranking.

The following minor punishments are allowed in accordance with clause (k) of sub-section
(1) of section 80:-

5. Reduction from standard conduct.

6. Solitary confinement for a period not
exceeding 14 day’s
7. Deprivation of good conduct badges.
8. Reprimand by the commanding
officer.
9. Extra work and drill for a period not
exceeding 14 day’s
10. Stoppage of leave for a period not
exceeding 30 days.
11. Mulcts of pay or Fine for improper
absence.
12. Extra work or drill for not more than
two hours a day for a period not
exceeding seven days.
13. Admonition,

And any of these punishments may be referred to by the number shown against it.

2. The commanding officer is responsible for every punishment awarded in the ship or
establishment. He shall ensure that no punishment is awarded or inflected otherwise than as
authorized by these rules and that no punishment is awarded by any other person except an office
authorized under rules 72 to 78.

3. Sub-rule (1) shall apply to a ship or establishment which is an independent command even if
its accounts are carried in an other ship or establishment; and such ship pr establishment shall not
be considered to be a tender for the purpose of rule 78.

NOTE

The provisions in respect of individual punishments are given in detail in rules 79 to 104-Part 3 of
this Chapter- whereas the following table gives a resume of the same:-

TABLE FOR SUMMARY PUNISHMENT

 69. Warrant punishments and their approval. - (l) Punishment Nos. I to 7 may be known
as "warrant punishments" and shall be made out in the form set out in the' second Appendix to
these rules. These punishment shall not be promulgated unless prior approval is obtained in
accordance with sub-rules (2) to (4).

(2) Punishment No.2 shall require the approval of the Chief of Navy Staff.

(3) Punishments Nos. 1,3,4 and 5 shall require the approval of the Administrative Authority,
except for the disranking (No.4) of a leading sailor.
 (4) Punishments Nos. 6 and 7 can be awarded by the commanding officer, if he is of the rank of,
or higher than, a commander; otherwise prior approval of an officer of that, or higher rank is
requires.

(5) Except in the case of dismissal from the service, the warrant may, if the approval of the
proper superior naval officer cannot be obtained within a reasonable period, be approved by the
senior officer present, Who Shall report particulars of the case to the Administrative Authority
without delay. A copy of the correspondence is to be inserted in the relevant, punishment warrant.

(6) If an officer having power to approve a warrant in accordance with this rule considers for
any reason that the punishment proposed is inadequate, he shall inform the commanding officer
so that he may reconsider the punishment and, if he thinks fit, after it but no such action shall be
taken unless it is necessary to secure-uniformity of punishment in the command.

70. Tenders or boats detached. - (l) The officer in command of a tender absent from a
parent ship or in command of ship's boats away on detached service is authorized by sub-section
(4) of section 102 to exercise the disciplinary powers of a commanding officer without reference
to him, subject to, provisions of rule. 69. The officer in immediate command of two or more
tenders absent from the parent ship and in company or acting together is similarly so authorized,
(2) The officer in command of a detached tender or tenders may delegate in writing to the
officer in command of any tender or tenders similarly absent from the parent ship and temporarily
under his orders, and to the executive officer of his own vessel or of such other tenders as are
under his orders, the same, powers as those which the commanding officer of the parent ship is
authorized to delegate under rule 78.

(3) The commanding officer of the parent ship may at his discretion restrict the powers to be,
exercised under this rule according to the circumstances, including the time that the tender or the
boat will be away and the seniority and experience of the officer who is to be in command.

71. Men on detached service. - (l) Under sub-section (4) of section 102, the powers of
summary trial and punishment may be exercised by the officer in immediate command of sailors
on detached service on shore or elsewhere without reference to the commanding officer.

(2) The commanding officer of the parent ship or establishment is authorized to restrict the
powers exercisable under sub-rule (1) and should in every case consider whether it is advisable to
do so.

PART (2) - DELEGATED POWERS OF PUNISHMENT

72. Commanding Officer to authorise.-(1) The commanding officer of a ship or

establishment which is an independent command may, In accordance with sub-section (5) of
section 102, delegate in writing to the, officers mentioned In the following rules of this Part,
when and so long as he may see fit, authority to award the punishments specified therein.
 (2) In awarding any of these punishments, an officer shall comply with the relevant rules
contained in Part-(3) of this Chapter.

NOTES

1. The commanding officer is to delegate the authority to award punishments in writing by

name to the officers indicating the capacity and extent of punishment as specified in rules 73, 74,
75 or 78. As such an order cannot give authority to exercise the power of punishment with
retrospective effect, care must be taken to ensure that it is issued before the effective date.

2. A copy of such an order is to be forwarded, every time a change made in the delegation of
such authority, to the Administrative Authority as well as to the Judge Advocate General.

3. See notes to Rule 116 regarding the maintenance of record of offences and punishments.

73. The Executive Officer. - (l) The Executive Officer may, if he is a commander be
authorized to award the following punishments:-

(a) extra work and drill for a period not exceeding 14 days (No.9):

(b) stoppage of leave for a period not exceeding 24 days (No.10):

(c) mulcts for leave-breaking Offences for a period not exceeding 24 days (No.11):

(d) extra work or drill for not more than two hours a day for a period not exceeding 7 days (No.
12):

(e) admonition (No. 13):

(2) The Executive Officer may, if he is of the rank of lieutenant commander or lieutenant, be
authorized to award the fol1owing punishments:-

(a) extra workan4 drill for a period not exceeding 7 days

(No.9):

(b) stoppage of leave for a period not exceeding 14 days (No.10), but not to master chief
petty officers, chief petty officers or petty officers:
 (c) extra work or drill for not more than two hours a day for a period not exceeding 7 days
(No. 12):

(d) admonition (No.13):

74. Officer-in Charge, Training school. - The officer holding appointment as in-charge of a
training school in a ship or establishment may, if he is of the rank of commander, lieutenant
commander or lieutenant, be authorised to award the following punishments to sailors belonging
to his school:-

(a) extra work and drill for a period not exceeding 7 days (No.9);

(b) stoppage of leave for a period not exceeding 14 days (No.10), but not to Master chief petty
officers, chief petty officers or petty officers;

(c) extra work or drill for not more than two hours a day for a period not exceeding 7
days (No. 12);

(d) admonition (No. 13).

75. First Lieutenant. -The first lieutenant may, if he is of the rank of lieutenant commander or
lieutenant, be authorized to award the following punishments to sailors employed under him:

(a) extra work and drill for a period not exceeding 7 days (No.9): ,

(b) stoppage of leave for a period not exceeding 14 days (No.10), but not to master chief
petty officers, chief petty officers or petty officers:

(c) extra work or drill for not more than two hours a day for a period not exceeding 7 days
(No. 12);

(d) admonition (No. 13).

76. Officer of the watch or day. - The officer of the watch or the officer of the day may be
authorized to award the following punishments :
(a) extra work or drill for not more than two hours a day for one day (No. 12).
(b) admonition (No. 13).

77. Heads of the departments and divisional officers. - The heads of departments and
divisional officers may be authorized to award (a) extra work or drill for not more than two
hours a day for one day (No. 12): (b) admonition {No. 13) to any sailor of their respective
departments or divisions for an offence connected with his professional or divisional duties and
not connected with the general duties of the ship or establishment.

78. Tender in company with parent ship. - (l) The commanding officer of tender, other
than a drifter, launch or, small craft, in company with the parent ship may be authorized to award
the following punishments:-
(a) if he is a captain, any punishment referred to in rule 68:
(b) If he is a commander or lieutenant-commander:
 (i) reprimand (No.8):
(ii) extra work and drill for a period not exceeding 14 days (No.9) :
(iii) stoppage of leave for a period not exceeding 24 days (No. 10):
(iv) mulcts for leave-breaking offences for a period not, exceeding 24 days (No. 11).
(v) extra work or drill for not more than two hours a day for a period not exceeding 7 days
(Ne. 12)
(vi) admonition (No.13).

(c) - if he is a lieutenant:
(i) reprimand (No.8):
(ii) extra work and drill for a period not exceeding 7 days (No.9):,
(iii) stoppage of leave for a period not exceeding 14 days (No; 10), but not to master chief
petty officers, chief petty officers and petty officers.
(iv) extra work or drill for not more than two hours a day for a period not exceeding, 7
days (No. 12':
(v) admonition (No. 13).

(2) The Executive officer of such a tender may, if he is of the rank of lieutenant-commander
or Lieutenant, be authorized to award following punishments:-

(a) extra work and drill for a period not exceeding 7 days (No.9).

(b) stoppage of leave for a period Dot exceeding 14 days (No.10), but not to master chief petty
officers, chief petty officers or petty officers;

(c) extra work or drill' for not more than two hours a day for a period not exceeding 7 days
(No.12).

(d) admonition (No.13).

(3) If the commanding officer of the parent ship is, or is about to be, absent for so long a period
that there would be undesirable delay and dealing with offences which could not be disposed of in
accordance with sub-rule (l) or sub-rule (2), he may authorize the officer next in seniority to him,
whether borne part complement or additional, to try and punish offences as if he were the
commanding officer.

PART (3)-PROVISIONS FOR INDIVIDUAL PUNISHMENTS

(For a resume of these provisions, see table under note to rule 68)

(A) Imprisonment and Detention (Nos. 1 and 3)

 79. When to be awarded.- (l) Sentences of imprisonment shall normally be confined to men
who have already undergone several sentences of detention without effect and to other men who
are not to return to the service on expiration of their sentence.

(2) Ordinarily the punishment of detention shall be awarded in preference to the sentence of
imprisonment to persons who are likely to be retained in service after serving the sentence. .

(3) Imprisonment or detention may be awarded summarily for a period not exceeding three
months' but shall not ordinarily be awarded for a period of less than 15 days.

(4) No offender below the age of twenty-one shall be sentenced to imprisonment whether by
court-martial or summarily, if he IS to be retained in the service after serving his sentence.
Sailors' below the age of twenty-one may be sentenced to imprisonment if, by reason of dismissal
or for other reasons, they are not being retained in the services.

(5) No pay shall be admissible for the period of the sentence of imprisonment or detention
actually served and such period shall not to taken into account in determining the length of
service rendered by the person concerned, except for purposes connected with his advancement.

(6) A person sentenced to imprisonment or detention shall be deprived of all his good conduct
badges, and if he is a master chief petty officer, chief petty officer or a petty officer or a leading
sailor, then, subject to rule 80, he shall also be disranked to a rank below that of leading sailor.

(7) A sentence of imprisonment or detention shall not take effect unless approved by the
Administrative Authority on the punishment

warrant (see rule (9).

(8) Master Chief petty officers, chief petty officers and petty officers shall have the right to elect
trial court-martial, before being summarily punished by imprisonment or detention(see rule-51).

80. Restrictions regarding certain sailors - (l) Master Chief petty officers, Senior Chief
Petty Officers, Chief petty officers and petty officers who can be disranked shall not be sentenced
summarily to imprisonment or detention except for desertion. They shall not be sentenced
summarily to imprisonment or detention and disranked at the same time unless their offences
include desertion.

(2) Master Chief petty officers, Senior Chief Petty Officers, chief petty officers and petty
officers who cannot be disranked, leading sailors and men wearing good conduct badges shall
not be sentenced summarily to imprisonment or detention, except for the following offences:
(a) mutiny or highly insubordinate conduct :
(b) desertion, or deserting post;
(c) sleeping .on watch;
(d) indecent acts of an immoral character;
(e) theft or fraud (including major offences against custom regulations when fraud is
involved);
(f) smuggling liquor into ship;
 (g) quitting ship, boat or working party without leave;
(h) drunkenness on duty;
(i) violent assault;
(j) aggravated or repeated leave breaking;
(k) flagrant contravention of the censorship regulations:
(I) flagrant contravention of gasoline, ammunition, or damage control regulations, which
endanger life, the ship, aircraft or establishment.

(B) Dismissal from Naval Service (No. 2)

81. Dismissal. - (I) Without prejudice to the power of dismissal conferred by the provisions of
the Ordinance and these rules, no person shall, save in exceptional circumstances; be dismissed
from the service summarily, unless he has been previously sentenced to some of the other
punishments referred to in rule 68 and is in the opinion of the Administrative Authority not likely
to reform himself by being subjected to any of those punishments any further.

(2) A Sailor who has committed an offence deserving imprisonment should, if his past record
clearly shows that he is unworthy of retention, properly be dealt with by imprisonment and
dismissal.

[NOTE I."Imprisonment followed by discharge S.N.L.R. (services no longer required), is not

normally appropriate.

[NOTE II.-A sentence of dismissal should not normally be accompanied by a sentence of

detention)

(3) When in the opinion of the commanding officer dismissal from the service is the
appropriate punishment for an accused, he shall, enquire carefully into the case and record
summary of evidence which shall accompany the punishment warrant when it is forwarded to the
Chief of Naval Staff for approval.

(4) Dismissal does not automatically entail any other punishment, and disranking or the
deprivation of the good conduct badges should be included in the sentence, if appropriate.

(5) Master Chief petty officers, Senior chief petty officers, chief petty officers and petty
officers have the right to elect trial by court-martial, before being summarily punished with
dismissal.

(C) Disranking (No.4)

 82. Extent of disranking. - (l) A man may be disranked to any rank in his own branch or to
any lower class in his lank provided that no man shall be disranked or reduced
(a) below the such limits as may be specified in the regulations; (b) below, either actually or
relatively, the rank in which was first enrolled.

(2) A man holding an acting rank may be disranked and the effect of such disranking shall be
the same as disranking from a confirmed rank.

(3) When a man holding a good conduct badge is disranked deprivation of the badge is not a
consequential effect of disranking; though it may be imposed in appropriate cases.

(4) In order to avoid any differentiation between conditions of re-advancement of men

disranked summarily and those disranked by court-martial, the commanding officer, when
seeking the approval of the Administrative Authority for sentence of a disranking or for any
sentence which involves disranking, shall recommend on the punishment warrant whether the
man should be eligible for re-advancement by his commanding officer or whether re-
advancement should be permitted only with the Chief of Naval Staffs approval. The decision of
the Administrative Authority shall be recorded on the sailors service certificate, and shall be final
unless amended by the Chief of Naval Staff during review of warrant punishments.

(5) The punishment warrant of summarily disranking a leading sailor does not require the
approval of the Administrative Authority and the re-advancement of such a sailor shall also be
within the powers of the commanding officer and the foregoing procedure shall not apply to such
disranking Of re-advancement.

(6) Master Chief petty officers, Senior Chief petty officers, Chief petty officer and petty
officers have the right to elect trial by court-martial, before being summarily punished by
disranking.

83. Re-advancement after disranking - (l) Commanding officers shall ensure that equal
consideration is given to men whose re-advancement is subject to the Chief of Naval Staffs
approval and to men whose re-advancement is within the powers of the commanding officer and
that the question of re-advancement receives consideration as soon as a sailor is otherwise
qualified for re-advancement under sub-rule (3). With a view to ensuring that sailor who can be
re-advanced only with the Chief of Naval Staff's approval, are not overlooked, commanding
officers shall keep such men under periodical review, and shall represent to the Chief of Naval
Staff the case of every man of such Category as soon as he can be recommended and becomes
eligible for re-advancement. It is not necessary to wait for a man to prefer a request for re-
advancement before taking action in that behalf.
(2) The nature of the offence for which a man has been disranked is a material factor to be
considered when the commanding officer decides whether he is fit for re-advancement after the
minimum period of "Very Good Conduct" laid down in sub-rule (3). A note in writing of the
offence shall therefore be attached to the man's service certificate and shall remain so attached
until he is reinstated in his former rank. Such re-advancements shall never be antedated and shall
be notified at once to the Drafting Authority.
 (3) Man who are disranked are not to be replaced on the

advancement roster, but may be re-advanced, irrespective of vacancies ; if

(a) they have passed such examinations as may be specified in the regulations, for
confirmation to the next higher rank. Where, owing to the exigencies of the service, no
opportunity has occurred since the date of the disranking of completing such examination,
the man, if otherwise eligible may be re-advanced to the acting rank, but the examination
shall be taken at the first opportunity, and if he passes the same" he shall be confirmed
forthwith except in cases where confirmation is to be withheld or postponed for such
reasons as may be specified in the regulations, and, if he fails, he shall revert to the lower
rank but shall remain eligible for re-advancements under the provisions of this rule;

(b) they have maintained a continuously “Very Good conduct" for the under mentioned
period immediately preceding re- advancement, namely:-

SL Rank Class(if Re-advancement to Period of

any) continuous “Very
Good conduct”
(ia) CPO - MCPO/SCPO/CPO 2 years
th
(i) Artificer or 4 Chief 2 years to next
Mechanician class or higher class other
above than Chief 1 year
(ii) Petty - SCPO/CPO Rank 2 years
Officer
Rank
(iii) Leading - PO Rank 1 ½ years
rank
(iv) Able rank - Leading rank 1 year

(Amended vide No. S.R.O. 148-l/84, Ministry of Defence Notification, Dhaka, the 17 April, 1984.)

In calculating "Very Good Conduct" for re-advancement purposes the general provisions
as specified in the regulations shall apply except that the time for which a character
assessment of "Indifferent" has been awarded is not forfeited;

(c) they are not actually suffering from any venereal disease.

(4) A man who was disranked by more than one step shall be
eligible under these rules for re-advancement by successive steps through the rank previously
held, but he must serve in. each grade the prescribed period with continuous "Very Good
Conduct" before re-advancement to next grade.
(5) Re-advancement to leading and petty officer ranks in all branches except the Artificer
Branch, shall be through the acting rank.
 (D) Reduction from Standard Conduct (No. 5)
84. Offences for which awarded.-(l) Reduction from standard conduct is art appropriate
punishment for sailors for whose continual slackness or misconduct the repeated award of lesser
punishments has proved ineffective. When it is awarded to such sailors the fact that the present
offence is the culminating offence of a series of minor offences shall be brought out on the
punishment warrant.
(2) The Punishment may also be awarded for any offence punishable with detention or cell
when it is likely to have a more corrective effect on the offender or when it is to the advantage of
service, except that in cases of leave-breaking it may be awarded only for aggravated or -fourth
(or subsequent) repeated offence. It shall not be awarded in conjunction with imprisonment,
detention or cells.

(3) The approval of the Administrative Authority is required on the Punishment warrant
before this punishment may be awarded.

85. Restrictions regarding certain sailors. - Sailors who hold leading rank or above and
cannot be disranked shall not be awarded this punishment. Sailors, who hold leading rank or
above and can be disranked may be awarded this punishment only if they are disranked

below leading rank.

86. Penalties. - So far as practicable, every sailor who is undergoing this punishment shall-

(a) forfeit one sixth of his basic pay, excluding extra pay and

allowances;

(b) be deprived of leave for the first fourteen days, there after being allowed, when possible up to
one day's leave a week at the discretion of the commanding officer;

(c) be subject ,to the routine "laid down for punishment No. 9 for the first fourteen days;
thereafter performing extra work or drill in the dog -watches for not more than one hour a
day;
(d) fall in for inspection at such times as the commanding officer may appoint;
(e) be deprived of any good conduct badges he may hold;
(f) be debarred from advancement to leading rank or above.
Men reduced from standard conduct shall not be employed on special or isolated duties.

87. Duration or punishment - (l) Except as provided in sub-rule (2), no Sailor shall undergo
the punishment of reduction from standard conduct for more than ninety days at anyone time.

(2) If a sailor deserts while reduced from standard conduct and is not recovered before the
expiration of ninety days from the date of reduction, such punishment shall be deemed to have
terminated on recovery.
 (3) Every sentence of reduction from standard conduct shall be reconsidered by the
commanding officer at intervals of not more than twenty-one days. Time in desertion and time for
which pay is net allowed shall not count towards the Period of twenty-one days.

(4) On reconsidering a sentence, the commanding officer may, if he is satisfied with the
sailor's behaviour and has reason to believe that he is inclined to reform himself, terminate the
punishment at any time after the first twenty-one days have elapsed.
(5) The commanding officer may at any time terminate the punishment if the offender does
some act of gallantry or some other exceptionally meritorious act.
(6) If a man is drafted from a ship or naval establishment while still undergoing this punishment
the commanding officer is to note on his conduct sheet the date on which he proposes that the
punishment should be terminated; and the man's character on discharge from the ship or
establishment shall be assessed accordingly. If the man's papers are not available, this information
should be sent immediately by letter to his new commanding officer.
(7) The words "Reduced from Standard Conduct" are to be clearly noted in red ink after the
names in the nominal rolls or on the genforms pertaining to the sailors concerned.

(E) Cells (No. 6)

88. Cells. - (I) The punishment of solitary confinement in a cell may be imposed for offences
punishable with imprisonment or detention, and should be awarded only where the punishing
authority is satisfied that a feeling of loneliness is likely to produce wholesome influence on the
offender and help him reform himself.
(2) Any such punishment shall not exceed fourteen days in duration and may be awarded by
warrant by the commanding officer, if he is of the rank of, or higher than, a commander;
otherwise such warrant requires the approval of an officer of that, or higher rank.
(3) A person sentenced to the punishment of solitary confinement shall be deprived of good
conduct badges; no pay shall be admissible for the period of such sentence and such period shall
not be taken into account in determining the length of service rendered by the person concerned
except for purposes connected with his advancement.
(4) Such punishment may, with the permission of the Administrative Authority, be carried out
in a ship or naval establishment other than, that in which it was awarded.
89. Restriet10ns regarding leading sailors. No leading sailor, who can be disranked shaI1
be sentenced to cells, nor can a leading sailor be disranked and awarded such sentence at the
same time. Leading sailors who cannot be disranked may be awarded such sentence but only for
the offences specified in sub-rule (2) of rule 80.
90. Physical conditions. (I) A cell shall be a closed space under a canvas screen or a cell
approved by the Administrative Authority who wilt also approve any alterations required.
(2) It shall measure not less than ten feet in length and four feet in breadth and be as high as the
space between decks.

(3) No sailor shall be confined in a cell in which the temperature exceeds 90 degrees unless the
commanding officer is satisfied that there is adequate ventilation.
 91. Routine to be followed.(1) A person sentenced to solitary confienment shall be required to
pick daily, Fridays and holidays excepted, either two pounds of tarred hemp or six pounds of
tarred sisal, either of which shall be weighed when given to him and against

when received from him.

(2) He shall not be allowed to have or use tobacco, or a knife or razor, or writing material or
books or papers of any kind other than suitable religious books, books of instruction or
educational text books which may be supplied to him on his request.

(3) He shall be required to keep himself and his cell clean. After the third day's confinement
he shall be brought on deck under the sentry's charge for two hours a day, one hour in the
forenoon and one hour in the afternoon. He may be given the normal forms of arms drill during
these exercise period.
(4) He shall be allowed to attend any congregational prayers once a week. or more at the
discretion of the commanding officer, if held on board or in the establishment.

(5) He shall be visited by a medical officer at night and in the morning during hot weathers
and in other weathers once at any time in twenty four hours. He shall be visited in his cell once in
each watch by the master-at-arms or duty petty officer's but this particular duty shall not be
delegated to a sailor below petty officers rank With the exception of the medical officer and
regulating sailor, he shall not be permitted to communicate with any person, except when
authorized by the commanding officer.

(6) A sailor in cells may be permitted to receive letters addressed to him, but such letters shall
be opened, by him in the presence of one of the regulating staff so as to ensure that nothing
undesirable is enclosed. A man undergoing the punishment or confinement in cell shall not be
permitted to write a letter except in exceptional circumstances.
(7) The requirements of any of the forgoing provisions of this rule shall be relaxed by the
commanding officer if the medical officer is of the opinion that such relaxation is necessary to
avoid permanent
injury to the health of the sailor, and may be relaxed at the discretion of the commanding officer
in the case of a boy on apprentice or in any other suitable case.

(F) Deprivation of Good Conduct Badges (NO.7)

92. Deprivation of badges. - (I) Any sailor to whom one or more good conduct badges have
been awarded may be deprived of one or more of them for misconduct summarily by warrant.
(2) A sailor sentence to any of the following punishments;
(a) imprisonment,

(b) detention, ,

(c) solitary confinement in cell.

(d) reduction from standard conduct,
shall be deprived of all the badges which he may be holding.

(3) This punishment may be awarded by warrant by the commanding officer, if he is of, the or
rank of higher than, a commander; otherwise such warrant requires the approval of an officer of
that, or higher rank.

93. Restoration. - (l) Restoration of badges shall be considered when it becomes due, whether
the sailor prefers his claim or not, and the procedure specified in the regulations for the award of
a badge shall be observed.

(2) One badge may be regained by six month's "Very Good Conduct" and additional badges
by further periods of six months, reckoned in each case, from the date of the preceding
restoration. If however a sailor has been sentenced to deprivation a second time within three years
of actual service, period of qualification shall be twelve months for the first restoration and six
months for each subsequent restoration. Time which does not count for purposes of award shall
not be reckoned for purposes of restoration of badges.

(3) It shall be in the discretion of the commanding officer to delay the restoration of badge if,
when restoration would normally be due, the sailor has failed to reach the required standard of
conduct. In such a case the continuity of "Very Good Conduct" shall be deemed to have been
broken on the date on which the man completed six months, or as the case may be twelve months'
Very Good Conduct period, and a fresh period of qualification commenced the following day.
This procedure may be repeated until the required standard of conduct is attained. The fact that
the restoration of a badge has been delayed shall be noted on the man's conduct sheet.

(4) When a badge is restored after the normal date, the notation of restoration on the service
book shall be underlined in order to indicate that restoration has been advisedly delayed.

(G) Reprimand by the commanding Officer (No.8)

94. Reprimand by the Commanding Officer.-The punishment of reprimand may be
awarded by an order in writing to a leading rank

of a higher rank. Such punishment shall not involve a break in the continuity of the period of
"Very Good Conduct" unless otherwise stated in the order.

(H) Extra Work and Drill (No. 9)

95. Extra work and drill. - (1) To whom awarded - This punishment may be summarily
awarded to able sailors and below.

(2) Routine to be followed:

 (a) Leave to be stopped for the period of punishment.

(b) To turn out half an hour before the hands.

(c) To do extra work during non-working, hours from half an hour before the hands turn to
until 2100, one hour of which, during the dog watches, to be if possible, drill or boat
pulling.
(d) To be mustered constantly,
(e) To have full time for meals, except dinner, for which half an hour will be allowed; to be
employed for the remainder of dinner hour at drill or work.

(3) Other instructions

(a) Drill is to be performed wearing correct drill order only.

(b) Extra work is to be substituted when drill would have to be
carried out in sight of civilian on-lookers.
(c) When possible extra work is to be done in the department
to which the sailor belongs.
(d) If a sailor has to keep night watch either in harbour or at
sea, this punishment is to cease at 2000 and he is not to be
turned out before the usual time.
(e) While under this punishment a sailor should be allowed to
leave the ship or establishment only on duty, except that
he may be allowed to proceed on long leave at the discretion of the commanding
officer.

(f) In the case of boys and apprentices the routine laid down in

sub-rule (2) may be relaxed at the discretion of the commanding officer,

(t) Stoppage of leave (No. 10)

96. Stoppage of Leave.-(I) As stoppage of leave, in common with other punishments,

commences from the date on which it is awarded and runs continuously from that date and as it
may not be awarded for more than thirty days, it is ineffective if given in conjunction with a
sentence of imprisonment or detention of thirty days or more.

(2) When awarded for leave beaking, it must not exceed the scale laid down in rule 97 except for
aggravated or repeated offences.

(3) It may also be awarded in appropriate cases for any other offence either as the only
punishment.
 (4) While under stoppage of leave a sailor shall be allowed to leave the ship or establishment
only on duty, except that he may be allowed to proceed on long leave at discretion of the
commanding officer. No other penalties are involved, except mustering with men under
punishment.

(J) Mulcts or Pay for improper Absence (No.11)

97. Scale of mulcts. - (1) Except as provided in sub-rule (2) and (3) every sailor who is found
guilty absence without leave or improperly leaving his ship or place of duty shall suffer forfeiture
of pay and benefits in accordance with the following scale:-

(a) Where the period of absence does not exceed six hours, half a days pay and one day's
leave;
(b) Where the period of absence exceeds six hours but does not exceed 72 hours, one
day's pay and one day's leave for every, twelve hours (or part of twelve hours) of absence;

(c) Where the period of absence exceeds 72 hours, one day's pay and one day's leave for every
twelve hours of absence upto 72 hours and one day's pay and one day's leave for each period of
24 hours (of part of 24 hours) thereafter; but the stoppage of leave shall in no case exceed
30 day's.

(2) The officer trying the case may at his discretion reduce the mulct of pay to not less than
one day's pay for each (or -{)8rt. of a day) of improper absence and he may at his discretion also
reduce the forfeiture of leave to arty extent.

(3) If a sailor is sentenced to imprisonment or detention for an offence of leave-breaking or

for offences which include leave-breaking the mulct shall be one day's pay for every 24 hours (or
part of 24 hours) of improper absence.

(4) The pay and allowances for the period of improper absence shall only be paid to the
sailor after deducting the mulct of pay awarded in accordance with this rule, by the officer trying
the case.

(5) A day's pay for the purpose of this rule is to include full pay and allowances but not
extra pay, provision, lodging and kindred allowances. The term "kindred allowances" includes kit
upkeep, haircutting and washing allowances.

98. Calculation of period of absence. - (l) The period of improper absence included in the
charge should strictly be computed from the time when leave expires (or the time of breaking out)
until the time of return to the ship or place of duty. Absence may, however, terminate in many
different ways and computation of the period of absence for the purpose of mulcts can be decided
only by the commanding officer having regard to the circumstances of each case.

(2) when a sailor surrenders or is apprehended as an absentee away from the locality in which
his leave expired, it is within the discretion of the commanding officer, having regard to the
circumstances, to consider the absence as having terminated at the time of such surrender or
apprehension, but if a lengthy journey is involved
in returning to the place, where leave expired it might be appropriate to include the time
involved thereby in computing the period of absence.
(3) When an absentee is arrested by the civil power on another charge and is subsequently
handed over to the naval authorities his absence without leave is to be regarded as ceasing from
the time of his arrest by the civil power.

99. Simple leave breaking. - Unless the offences is an aggravated or repeated offence as
defined in rules 100 and 101, the punishment for an offence of leave-breaking involving improper
absence shall normally be confined to a mulct in accordance with rule 97, but if the offence was a
sequel, to an offence of improperly leaving a ship or place of duty, other punishments may be
awarded in addition.

100. Aggravated offences. - (l) An offence of leave-breaking is aggravated.

(a) if the absentee misses his ship or draft;

(b) if, when leave was granted, a warning had been given that

the ship was under sailing orders;

(c) if the offender was undergoing any form of punishment at

the time;

(d) if there are any other particularly serious circumstance.

(2) The charge in a case of leave-breaking falling within the terms of sub-rule (1) may refer
to the offence as aggravated, but the charge shall not, contain anything which directly or
indirectly refers to a previous offence.

101. Repeated offences. - A repeated o(fence of leave-breaking is one committed in the same
ship or establishment within six months of a previous leave-breaking offence. A subsequent
repeated offence is one committed within six months of a previous repeated offence. When a
sailor is drafted to another establishment solely to undergo detention or cells and afterwards
returns direct to the ship or establishment in which he was sentenced, his service should be
regarded as continuous in that ship or establishment for the purpose of assessing whether an
offence subsequently committed should be considered as a repeated offence. AU proved offences
of leave- breaking are to be recorded on a man's conduct sheet in order that the appropriate
punishment may be awarded for subsequent offences.

102. Punishment of aggravated or repeated offences. - (l) If the offence is aggravated or

repeated (or if the. offence was a sequel to one of improperly leaving the ship or place of duty.)
other punishments authorized in this Chapter may be awarded in addition to the mulct.
 (2) If the officer trying the case considers it necessary to award imprisonment or detention for
absence without leave, he is to report his reasons in submitting the punishment warrant.
(3) Reduction from standard conduct is not to be awarded for leave-breaking unless it is an
aggravated or fourth (or more often) repeated offence.
(4) Stoppage of leave in excess of the scale laid down in rule 97 is not to be awarded as a
punishment for leave-breaking unless the offence is aggravated or repeated, but shall in no case
exceed 30 days.

(K) Extra Work or Drill (No. 12)

103. Extra work or drill. - (t) Extra work or drill for not more than two hours a day may be
awarded for any period not exceeding seven days to Sailors, including juniors, below leading
ranks.

(2). Drill shall be performed wearing correct drill order only. When drill would have to be
carried out in sight of civilian on lookers, extra work shall be substituted.

(L) Admonition (No. 13)

104. Admonition - When a Sailor is found guilty of an offence which of itself, or in view of
mitigating circumstances, is not considered to deserve any more serious punishment, he shall be
admonished.

PART (4).-SENTENCE AND CONSEQUENCES

105. Sentence. - (l) If an officer, having investigated an offence in accordance with the
provisions of these rules, is satisfied that the accused is guilty of an offence which can be
adequately punished by such officer, having regard to his powers of punishment he shall award
such sentence as he thinks fit in the case.

(2) In awarding a sentence, the officer shall have regard to the record and character of the
accused and shall also allow him to make a statement regarding the circumstances, if any, which
may lead to the mitigation of punishment and such statement may be made on behalf of the
accused by his divisional officer or other friend.

106. Punishment by warrants. - (l) A warrant of punishment shall be correctly drawn up and,
completed in every detail according to instructions, on the form set out in the Second Appendix to
these rules. It shall be signed by the complainant and the commanding officer who shall also
insert therein the date on which he decided to punish the accused. When a warrant requires
approval of a superior authority it shall not be promulgated until the necessary approval, has been
obtained.

(2) Every punishment awarded, and every punishment which must accompany that award,
shall be set out in the appropriate column of the warrant, except that stoppages of pay and leave
necessarily involved in a sentence of cell punishment, detention or imprisonment shall not be
shown.
 (3) If a Sailor is punished by warrant for the first time in a ship, all the offences committed by
him in the ship during the preceding six months shall be entered in the warrant. If a Sailor is
punished by warrant more than once in the same ship, the offences committed since the date of
the last warrant, but within the preceding six months, shall be entered, and the numbers and dates
of all the previous warrants shall be mentioned.
(4) Warrants shall be numbered consecutively and a new series shall be started on 1st
January each year.
NOTES
1. Following instructions are to be carefully observed whilst completing the Punishment
Warrant (S. 271):
(a) The date of the Warrant on top of page] is to be the date on which the commanding officer
has finally decided to punish the accused by a Warrant. The same date is also to be inserted
as one of the dates in the middle of page 1 indicating the date on which the commanding
officer has "personally and publicly" investigated the offence. The same date is also to be
inserted at the bottom of page 2 indicating the date on which the warrant has been given
"under the hand of the Commanding Officer."
(b) When according to the rules the approval, of a superior authority is necessary, all the
entries on pages] and 2 of the Warrant –except the proposed punishment on top of page 1
and in the middle of page 2-are to be completed in ink. The proposed punishments are to be
entered in pencil - a line being drawn through all unused columns and will be inked by the
superior authority whilst approving the Warrant together with such reduction in punishment
as he may consider desirable. See Rule 69(6) regarding the return of the Warrant for
reconsideration by the commanding officer, when the superior authority considers the
proposed punishment to be inadequate.
(c) After the Warrant has been signed by the commanding officer and approved by the
superior authority-whenever necessary, it is to be promulgated to the accused normally by
the commanding officer on the quarter deck in accordance with rule 108, the reading of the
warrant is to be preceded by the reading of the section under which the offence falls.. The
date of promulgation is to be entered at the bottom of page 2 of the Warrant and signed by
the officer reading the Warrant. This date will necessarily be a date after the Warrant has
been approved by the superior authority. The punishment shall be effective from the date of
promulgation but it shall be reckoned as commencing from the date on which the
punishment warrant was "given under the hand of the commanding officer". (See rule. 109).
(d) The G.C.B. Certificate at the bottom of page 3 of the Warrant is to be filled properly in
all cases whether or not the Warrant requires the approval of the superior authority.
(e) The certificate of medical fitness is to be signed after the promulgation of the Warrant in
all "cases of cell, as well as detention. In case of imprisonment, such a certificate is to be
endorsed to the "Committal Warrant". (See relevant form in the Fifth Appendix).
(f) On page 4 of the Warrant, the "particulars of the accused and former offences" are to be
properly entered in accordance with sub-rule (3), care being taken to write the word. 'Nil' if
there are no former offences.

2. Sub-rule (4). - The same series is to be used for numbering the Punishment Warrants
belonging to the parent ship as well as all the tenders of that Parent ship.
 3. Form of Punishment Warrant (S.-271) - as given in the Second Appendix to the rules-is
reproduced below:-

(Page 1)

S.-271

B.N.S. ___________________________

Warrant No. _____________________ dated _______________ 19

(The warrants are to be numbered consecutively, a new series being started on 1st January of
each year.)

For --------------------------------------------------------------------------------

(Here specify all punishments for which, taken separately, a warrant

would be required. To be inserted in pencil when the warrant is

being submitted for approval).

 (Page No. 3)

B.N.S. _________________

______________________ 19 ____

Sir,

I have the honour to submit that the offence(s) disclosed herein may be dealt with summan1y,
and that approval may be given to the proposed sentence which is considered suitable for the
offence(s).

2. The accused's Service documents (complete to date) are enclosed.

3.With reference to N. Rnl~2 (4) it is recommended that the sailor should be re-advanced

by his Captain. (Delete as necessary)

(only with the Chief of the Naval Staff's approval).

4. [Insert here any remarks on the suspension of any sentence of imprisonment or detention (N.
Ordinance, Section 156)].

(Delete paragraphs 3 and 4 as may be necessary.)

I have the honour to be

Sir.,

Your obedient servant.

To _____________________

_____________________

_____________________
 _____________________

______________________________________________________

Remarks on. any excess, undue leniency or irregularity in the above proposals:

Approved
______________ Signature
______________ Rank
______________ Date

The Commanding 08icer,

B.N.S.----------------------

certificate e of Medical Fitness to undergo Celt Punishment

I hereby certify that I have today examined and I find him medically fit to undergo the
punishment awarded.

______________ Signature
______________ Rank
______________ Date

Good Conduct Badge Certificate

The following certificate must be completed in all cases (unless the man is in possession of three
Good Conduct Badges).

The offender's Service documents have

The best evidence available in the. absence of the offender's Service documents has been
examined arid I find that he :-
(Delete whichever is not applicable)
(a) is not overdue for the award or restoration of a Good Conduct Badge;

(b) is overdue for the award/restoration of his---------------Good Conduct Badge, and was
undergoing the period of probation specified

by Navy Regulations Art. 1275, clause 3, at the lime of this/these offence(s)

[Delete (a) or (b)] ----------------------Signature and Rank

(Page No.4)
 Particulars of the Accused

Date of Birth --------------------------------- Date of Entry in Ship-

Date of first entry in Naval Service --------------------------------------------------------------------------

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

Former Offences

(If a sailor is punished by warrant for the first time in a ship, all the offences committed by him
in the ship during the preceding six months shall be entered in the warrant. If a sailor is punished
by warrant more than once in the same ship, the offences committed since the date of the last
warrant, but within the preceding six months, shall be entered, and the numbers and dates of all
the previous warrants shall be mentioned.)

Number of 2 3 4 5 6 7 8 9 10 11
Punishment

1
Nature Date of No. of No. of Disranking Reduced No. of Deprived Reprimand Days Days Days
of Punish- days days to from days of G.C. by Captain
Offence ment imprisoned detention Standard confined Badges
in Cell No. Extra Leave Pay
on work stopped forfeite
board – 14 – 30 for
days days improp
Absenc

19

107. Modification of sentence. - At anytime before the warrant is promulgated the

commanding officer may modify or even with draw the sentence, if on further consideration it
appears to him desirable to do so; but, if the warr.ant has been approved by superior authority, the
sentence shall not be modified or withdrawn without the consent of such authority.
 108. Promulgation of punishment by warrant. - (l) After a warrant has been signed and,
where necessary approved, it shall forthwith be promulgated by the commanding officer by
reading aloud to the offender the section under which the offence falls and the contents of the
warrant, but the pervious offences entered in warrant shall not be read out unless the commanding
officer considers it necessary to do so in order to make the promulgation examplary. Such
promulgation shall be ordinary carried out on the quarter-deck.

(2) Where an offender is in the hospital, the warrant shall be promulgated to him in hospital,
unless the medical officer certifies that the offender is not medically fit to have the warrant read
out to him, in which case the promulgation may be carried out on the quarter-deck in his absence
and such promulgation shall have the same effect as if it had been read out to the offender. The
fact of a warrant having been promulgated in the absence of the offender shall be stated on the
warrant and shall be communicated to him as soon as he is in a fit state for it.

NOTES

1. See note 1 (C) to rule 106.

2. If the sentence require a Committal warrant to be issued in terms of rules 245 and 246 the
Commanding Officer is to do so an appropriate, from as specified in the Fifth Appendix to the
rules amended as require to suit the particular requirements of the case. A copy of the same is to
be forwarded forthwith to Naval Headquarters (Department of Judge Advocate General).

109. Date from which sentence runs. - Every sentence shall begin to run from the day on
which it is awarded by the officer summarily trying the case, but a sentence awarded by a
punishment warrant shall only be effective after promulgation, although it shall he reckonded as
commencing on the day on which the punishment warrant is signed by the commanding officer.

110. Fridays and holidays. - Summary punishments which are carried out in a ship or naval
establishment, other than punishments Nos. 1 , 3, 6 and 10, shall not be carried out on Fridays
and holidays; but such days shall count as part of the period for which the sentence is awarded.

111. Sickness of accused. - Should an offender be in such a state of health as to be unable to

undergo all, or any part of the summary punishments to 'which" he may rendered himself liable,
and should it appear probable that he will be invalided from the service, or remain for a
considerable title unfit for punishment, the punishment merited by his offence is nevertheless, to
be awarded and should it require a warrant the warrant shall be completed and duly signed and
promulgated, if necessary in the absence of the accused in order that he may not escape the
consequences, such as loss of pay or badges, of the punishment.
112. Principles to be observed in awarding punishment. – In awarding punishments the
officers shall bear in mind the following principles, namely:-
(a) Inconsiderate and protracted punishment should as far as possible be avoided.

(b) The severity of the punishment should be in proportion to the gravity of the offence.
 (c) Due regard should be had of the effect of punishment on

the maintenance of order and discipline.

(d) The previous character of the offender should be reckoned

as a factor in determining the severity or leniency of the

punishment.

(e) In the case of repeated offences the punishment should

ordinarily be gradually increased beginning, if possible, with
a minor punishment and raising it ultimately, to the
maximum, but care should be taken that such method of
gradually increased punish does not; result in undue leniency
to an habitual offender or in the case of a grave offence.
(f) The indirect consequences of the offence and of the
punishment should also be taken into account.

NOTES

1. In order to ensure uniformity in the award of summary punishments, a table indicating the
maximum punishments to be awarded normally for various offences is given below. It is not
exhaustive as to offences and is intended to be merely suggestive. These limits are only to be
exceeded in cases of aggravated nature or those of continual of persistent misbehavior, when the
reasons for so doing are to be stated in the Daily Record of Offences and Punishments (section
240) and in the Punishment Warrant (section 271).

2. However, in those cases when the Commanding Officer considers that the charges clearly
indicate that more severe punishment than authorised to be awarded by him-is required, he is to
apply to the Superior Authority concerned for the trial of the accused either by General or District
Court-Martial depending on the gravity of the offence. If the Commanding Officer is in doubt as
to whether the accused should be tried summarily or by Court-Martial he is to "remand" the
accused rule 50 (9) and forward the facts of the case by a

letter seeking the advice of the Administrative Authority. Whilst forwarding such a letter, the
Commanding Officer must comply with the provisions of rule 58 (I) and ensure that the
punishment warrant is not submitted at the same time for approval.
 PART (5) - RECORD OF PUNISHMENTS

114. Conduct Sheet. - (1) All offences committed and service punishments awarded to a
sailors Shall be recorded on his conduct sheet, except as provided in rule 115. Naval Penalties
following conviction by the civil power shall also be noted on this form.
(2) All peaty offences committed by any man shou1d not remain on permanent record against
him and for this reason when he joins a ship (other than for passage or to serve a sentence of
imprisonment or detention) with conduct sheet on which there is a record of any offences in a
previous ship (other than on passage) a new conduct sheet shall be made out but the old one shall
also be retained until the next assessment of character on the service book, after which it shall be
destroyed unless the assessment is being made on desertion.
(3) When a man sentenced to imprisonment or detention is transferred to the books of
another ship or establishment, and after release from imprisonment or detention he returns direct
to the ship or establishment in which he was sentenced his conduct sheet shall continue to
be used as if there had been no break in the continuity of his service in that ship or establishment.
(4) When a man is transferred to another ship, the- conduct.
sheet or sheets containing details of his offences since the last assessment of naval character on
his service book (usually 31st December) shall remain in that document and accompany him to
his new ship, so that the commanding officer of that ship may 'have full details of the man's
offences throughout the year when assessing his naval character in accordance with the
regulations.

115. Minor Punishments Books. - (I) Officers who have been authorized under rules 76
and 77 to award the punishment two hour's extra work or drill for one day (No. 12) and admoni-
tion (No. 13) shall keep a record of the punishments awarded in a Minor Punishments, Book. It
shall be signed by such an. officer at the time of awarding the punishments, signed by the
executive officer daily and by the commanding officer weekly, and produced at inspection.
(2) The punishments mentioned in sub-rule (1) shall not be recorded on the men's conduct sheet
or on Daily Record of offences and punishments or in the Punishment Return.

116. Daily record of offences and punishments. - (1) Details of all summary punishments
awarded and the offences to which they relate shall with the exceptions of those entered in the
Minor Punishments" Book, be recorded in the "Daily Record of offences and punishments.

(2) Officers to who authority has been delegated for awarding summary punishments by the
commanding officer under rules 73, 74,

75 and 78, shall initial the entries in the Daily Record of offences and
punishments in respect of such punishments as awarded by them. This record shall be examined
and signed by the commanding officer weekly and produced at inspections.
 NOTES

1. Daily Record of Offences and Punishments in form S. 240 (outer) and S.240-(a) (inner)
(Revised March 1962), is to be maintained in separate series for the parent ship, tender or
detached party, and this fact is to be mentioned clearly on the first and second page of form S.
240 (outer). On the second page, under the heading "Delegation of Powers of Punishment", are to
be entered the rank and name of the officer to whom the commanding officer has delegated the
powers of punishment indicating the capacity in accordance with one of the rules mentioned in
sub-rule (2) as well as the Captain's Temporary Memo giving such an authority Against this
entry, the officer concerned is to put his initials as specimen.

2. The Commanding officer of the parent ship is responsible for every punishment awarded in
the ship or establishment, vide rule 68 (2), and is to endorse a "covering certificate" to that effect
on page 2 of form S. 240, at the end of each quarter. If, however, he is superseded during the
quarter, he is endorse such a certificate on the last day of his command, the certificate for the end
of the quarter being endorsed by his successor.

3. On form S. 240 (a) all punishments, with the exception of those entered in the Minor
Punishments Book, are to be entered consequtively on the date of the award. Following
instructions are to be carefully observed whilst completing this form, a specimen of which, is
reproduced below :-

S.-240-(a) (Revised March 1962.)

Sailor

OFFICIAL No and NAME

Serial (The cause of any delay in punishment is to be

started
No.
under the

name.)
S.240(a) (Revised March 1962)
 PUNISHMENTS

Note :- When an offence is punished as an aggravated offence, and this fact cannot be included in the charge, or is punished as a repeated offence, a brief explan
offence was aggravated or repeated is to be made across these columns.
1 2 3 4 5 6 7 8 9 10 11 12
Imprisonment Dismissal Detention Disranked Reduces Cell Deprived Reprimand Extra Leave Mulcts Extra
from to from Punishment of Good by Captain work Stopped of Pay work
Naval Standard Conduct and or fine or
service Conduct Badges - Drill Drill
Number (2
hours
of
day)

Days Days Days Days Days Days Days

(a) A serial number is to be inserted in the first column against each offender.
(b) If a delay of more than five days occurs between the commission of offence and the
award of punishment, the reason thereof is to be briefly mentioned under the name of the
offender.
 (c) The charges are to be worded in the same manner as entered in form S. 241 "Report of
offender".
Punishments should not be awarded in excess of the scale laid down for a particular
offence, unless it is an aggravated or repeated offence for which higher punishment is
permissible under the Rules. If this fact of aggravated or repeated offence cannot be
included in the charge, it is to be briefly explained underneath the sentence in the
column of "Punishments", Similarly if a Commanding officer has in his discretion for
valid reasons - according to rules - reduced the punishment to less than that authorised by
(d)scale, a notation to that effect is also to be made in the column of "Punishments."
(e) If two or more separate offences have been tried on the same "Report of offender" or
on the same day by the same investigating officer and punishments awarded, then the
sentence thereof should be shown as" one in respect of all such offences-see rule 158 (2).
More than one punishment- commensurate with the offence-may however be awarded at
anyone time. Care must, however, be taken to ensure that a lesser punishment (e.g. No.
100stoppage of leave) - which is involved in a higher punishment (e.g. No. 9 - extra work
and drill) is not awarded at the same time as the higher punishment, unless the duration
of the lesser punishment is longer.
(f) The date of award of punishment as well as the number of the Punishment Warrant are
to be inserted in the appropriate column.
(g) Each sentence is to be initialled by the 0fficer awarding the punishment, and his rank
and the capacity in which he has exercised this authority are to be written underneath. If
the sentence is awarded by the captain, he is not required to initial the entry, but the
word "captain" or "commanding officer" is to be written in this column to indicate the
authority exercising the powers of punishment.
(h) The Daily Record - form S. 240 (a) - is to be closed every week, indicating the number
of offences for the week. The commanding officer of the parent ship is to inspect it
thereafter and sign it every week. It is to be closed on the last day of each quarter-
indicating the total number of offences for the quarter and inspected and signed by the
commanding 08icer of the parent ship. If the commanding officer is superseded before the
end of the quarter, he is to similarly close it on the last day of his command; the same
form being continued by his successor, who is to close it at the end of the quarter. This
form is also to be closed and produced at the inspections (see N.R. S020) carried out
by the Administrative Authority.
(i) No obliteration of or pasting over of any entry is to be carried out in this form. If,
however, there is necessity to make a deletion, such portions are to be ruled over by double
lines so that they are readable and such deletions are to be initialled by the commanding
officer.

111. Punishment Return. - (I) At the end of each quarter the "Daily record of offences and
punishment" shall be closed and signed by the commanding officer; The particulars of the
punishments shall be extracted for the punishment Return which, when completed and signed by
the Commanding officer, shall be forwarded to the Chief of Naval Staffs through the
administrative Authority, accompanied by
(a) daily record of offences and punishments;
(b) punishment warrants; and
(c) reports of arrests and trials by civil power.

(2) After examination, the Punishri1ent Return and the enclosures shall be forwarded by the
Administrative Authority With his remarks to the Chief of Naval Staff.
 NOTES
1. Following instructions are to be carefully observed whilst completing the punishment
Return (S. 181);

(a) The name and rank of the commanding officer, who had been responsible for all the
punishments awarded in the ship or establishment to be inserted on the first page in block
capitals. If more than one officer had exercised command during the quarter, names and
ranks of all such officers, together with their periods of command, are to be indicated.

(b) The particulars of summary punishments as well as offences are to be extracted

carefully from the "Daily Record of Offences and Punishments" and all the relevant columns
in these two tables are to be carefully filled in, a line being drawn through those columns
which are not applicable.

(c) Details of "sentences suspended or reconsidered "(Sections 156 and 160) - and of
"naval penalties approved by the commanding 'officer" (Rule 259) are also to be properly
filled in,. The word "Nil" is to be written under these headings if no such action is
required to be taken during the quarter.

(d) The commanding officer is then to give his opinion on the "general conduct of the
ship's company" as well as on the "cause of increase or decrease in offences during the
quarter".

(e) The
commanding
officer is following form, care being taken before signing it to ensure that all the
also to sign conditions mentioned therein, specially in para. (v), have been complied with.
a certificate The conditions mentioned in para. (iv) are in the alternative and care must be
in the taken to delete that line which is not applicable.
"I hereby certify that :-
(i) the whole of the punishments inflicted on board this ship during the period covered
by this Return, except non-warrant punishments awarded in conjunction with a warrant
punishment and those recorded in the Minor Punishment Book (See N. Rule 115) have
been included in the Abstract of Punishments,

(ii) that the punishments are in 'accordance with the N. Rules.

(iii) that in all cases where imprisonment, detention or cell punishment has been
accompanied by stoppage of leave, the period of confinement has been reckoned as a
portion of such stoppage.

(iv) that during the period covered by this Return.

*all suspended sentences have been reconsidered in accordance

 *no suspended sentences have become due for with See.160

reconsideration of the Navy

*(Delete whichever is not applicable.) Ordinance.

(v) a gist of N. Rules 31 to 37 (Form S. 272) have been read to the ship's Company in
accordance with N. Rule 31(3)."

(f) This is a legal document and commanding officer and the Administrative Authority are
to ensure to write the date in their own hand after their signatures.

2. Two copies of the Punishment Return, together with the documents mentioned in sub-rule
(1), are to be forwarded through the Administrative Authority concerned to the Judge Advocate
General, Naval Headquarters, for the information of the Chief of Naval Staff. These documents
are to reach the Administrative Authority by the tenth of the month following the quarter to
which they pertain.

3. Sub-rule (2) -The Administrative Authority is to examine all these documents/with a view to
ensure that the summary punishments awarded are in accordance with the preceding rule of this
Chapter. If any illegality irregularity or mistake is detected, necessary action is to be taken by the
Administrative Authority to rectify the same by using, if necessary, the powers vested in it by
Rule l18.

4. After this examination and necessary action, all these documents are to be forwarded to the
Judge Advocate General, who will scrutinize them so as to ensure that no illegality, irregularity or
mistake has been left undetected. One copy of the Punishment Return, together with all the
accompanying documents, will be preserved in the department of the Judge Advocate General for
not less than two years. The other copy of the Punishment Return shall be returned together with
such remarks as may be necessary-to the Administrative Authority either for return to the
commanding officer concerned or for further action under Rule 118.

PART (6) - REVISION

118. Revision of Summary Punishments. - (1) If any award made by or under the authority
of the commanding officer dealing summarily with the charge under the preceding rules of this
Chapter appears, to any proper superior naval authority to be wholly illegal, or if the finding
involved in such award appears to such superior officer to involve substantial injustice to the
accused, such superior officer shall direct that the award be cancelled and the entry in the records
of the accused be expunged.

(2) If any punishment awarded by or under the authority of a commanding officer dealing
summarily with a charge under the preceding rules of this Chapter appears to the aforesaid su-
perior officer to be in excess of the punishment authorized by law for the offence, such superior
officer may vary the punishment awarded so that it shall not be in excess of the punishment
authorized by law and the entry in the records of the accused shall be varied accordingly.

(3) If such punishment appears to the aforesaid superior officer to be too severe, having
regard to all the circumstances of the case, such superior officer may remit the whole or a part of
the punishment awarded.

Provided that the power to make such remission may be exercised by the superior officer
within a period of two years only from the date of the award.

NOTE

See notes 3 and to rule 117

________
 CHAPTER VIII

SUMMARY PUNISHMENTS-OFFICERS

119. Summary Punishments-Officers.-The Chief of Naval Staff, or, an officer not below
the rank of captain to such extent as he may have been empowered in this behalf by the Chief of
Naval Staff may, without the intervention of a court-martial, award summarily of an officer of the
rank of lieutenant or below, who is charged with an offence under the Ordinance, anyone or more
of the following punishment.

(a) forfeiture of seniority in rank or in case of subordinate officers forfeiture of time for
promotion, for a period not exceeding six months, but subject to the right of the accused,
which shall be exercised only before the punishment is awarded, to elect to be tried by
court-martial;
(b) forfeiture of pay and allowances for a period not exceeding three months or until any
proved loss or damage occasioned by the offence, of which he is convicted, is made good,
whichever is less; but subject to the right of the accused specified in clause (a);
(c) forfeiture of pay and. allowances for a period not exceeding three months for an offence
under section 42 in so far as it consists of neglect to obey flying orders, or for any of the
offences mentioned in sections 49 to 52.
(d) severe reprimand or reprimand.

NOTES

1. As to "forfeiture of seniority in rank" and "forfeiture of time for promotion", see notes 6 and
7 to section 80.

2. The option to elect trial by court-martial must be given to an accused officer, when it is
proposed: to award any of the punishments mentioned in clauses (a) or (b) of this rule, but when
the accused is charged with any of the offences mentioned in clause (c) or when it is proposed to
award him severe reprimand or reprimand only, he has no right to claim trial by court-martial.

120. Procedure for summary disposal of charge against an officer.-(l) Where officer is
remanded for the disposal of a charge against him by an authority empowered under rule 119 to
deal summarily with that charge, a certified copy of the summary of "evidence shall be delivered
to him, with a copy of the charge as soon as practicable after its preparation, and in any case not
less than forty-eight hours before the disposal of such charge.

(2) Where the authority empowered under rule 119 decides to deal summarily with a charge
against an officer he shall, unless he dismisses the charge or unless the accused has consented in
writing ~o dispense with the attendance of the witnesses, hear the evidence in the presence of the
accused. The accused shall have full liberty to cross-examine any witness against him and to call
any witnesses and make any statement in his defence.
 (3) The evidence of every such witness, whether for or against the accused, shall be taken on
oath or affirmation and the oath or affirmation shall be administered by the authority dealing su-
mmarily with the case in the same form and manner as provided for a court-martial.

121. Submission of report to superior naval authority.-Proceedings of summary disposal

under rule 119 shall be recorded on the form set out in the Second Appendix to these rules and
the officer awarding the punishment shall forward a copy of this form together with a copy of the
charge-sheet and summary of evidence to the superior naval authority, except in the case where
the punishment is awarded by the Chief of Naval Staff himself.

NOTE

Form for recording summary trial proceedings of an officer as set out in the Second Appendix to
the rules-is reproduced below:-

FORM FOR USE AT SUMMARY DISPOSAL OF OFFICERS

The accused (Rank, Name, P. No.) of B.N.S.. . . . . . . . . . . . . . . . . . . . . .

When an officer empowered under sectiol1103 of the Navy Ordinance, 1961, to deal
summarily with a charge against an officer, decides (with the written consent of the accused.
A. to dispense with the attendance, of witnesses :-*

Questions to the accused ;

1. Have you received a copy of the charge-sheet and

summary of evidence? rightrightAnswer:-…………

2. Have you had sufficient time to prepare your

defence? Answer:-………...

The charge-sheet is read.

The summary of evidence is read, or the officer authorised to deal summarily with the charge
informs the accused that he has already perused it.

3. Do you wish to make a statement.

(not on oath) ? Answer :-. . . . . . . . . .

[Instruction :-If the accused desires to make a statement (not on oath), he may do so. Any
statement so made by the accused must be taken down in writing and attached to this form.

If at the conclusion of the hearing the said officer considers that the charges(s) should not be
dismissed, he is to examine the accused's record of service or his conduct sheet.

If the said officer proposes to award a punishment mentioned in clause (a) or clause (b) of rule
119; he must put the following question to the accused :

4. Do you elect to be tried by a court-martial, or will

you accept my award? Answer :-...................

AWARD :-......................

PLACE: .........................

DATE :-.. .. . ... .. . ........

(Signature)

Officer empowered under Section] 03

Of the Navy Ordinance, 1961.

_______________________________________________________
 *This form is to be accompanied by the charge-sheet, summary of evidence and written
consent of the accused; and forwarded to the superior naval authority as required by rule 121.

"Reproof" cannot be awarded as a punishment under rule 119.

Where a number of charges are alleged and an award made, it should be indicated if any of the
charges have been dismissed.

____________

When the officer empowered under section 103 of the Navy Ordinance 1961 to deal
summarily with a charge against an officer (or, the accused), requires the attendance of
B. witnesses :-*

Questions to the accused:

1. Have you received a copy of the charge-sheet and

summary of evidence? Answer :-..............

2. Have you had sufficient time to prepare your

defence? Answer :-. . . . . . . . . . .

The charge sheet is read.

The prosecution witnesses give their evidence accused being permitted to cross-examine them.

3. Do you wish to make a statement (not on oath) ?

Answer :-. . . . . . . . . . . .

4. Do you desire to call any witnesses?

Answer :-. . . . . . . . . .

(Instruction.-If the accused makes a statement, it must be taken down in writing and attached
to this form.)
 The accused produces witnesses.

If at the conclusion of the hearing the said officer Considers that the charge(s) should not be
dismissed, he is to examine the accused's record of service or his conduct-sheet.

If the said officer proposes to award a punishment mentioned in clause (a) or clause (b) of rule
119, he must put the following question to the accused :-

5. Do you elect to be tried by a court-martial, or will you accept my award?

Answer:-………. . . . . . ……

AWARD :-.,....................

PLACE :-………………..

DATE :-…………………

(Signature)

Officer empowered under section 103 of the Navy Ordinance, 1961.

*This form is to be accompanied by the charge-sheet and summary of evidence, and forwarded
to the superior naval authority as required by rule 121. ..

*"Reproof" cannot be awarded- as a punishment under rule 119.

*Where a number of charges are alleged and an award made, it should be indicated if any of
the charges have been dismissed.
 122. Naval officers in civil employment – Misconduct - Should a naval officer, while
serving under a civil department of the Government or a Government, misbehave, he shall be
dealt with under the appropriate civil law, rules or regulation, unless the misconduct was some
act or omission of the officer in his naval, as opposed to his civil capacity. If his act or omission
in a naval capacity were an offence under the ordinance, his case shall be dealt with under the
ordinance and these rules and regulations.
123. "Logging" of an officer.- (1) The "logging" an officer means the recording of the
commanding officer's displeasure with an officer's conduct where the commanding officer
considers it necessary to record it for purposes of future reference. If the commanding officer
considers the matter to be sufficiently serious to bring it to the notice of the Chief of Naval Staff,
he shall report it to the Administrative Authority, who shall then decide whether the Chief of
Naval Staff should be so informed or not.
1A(i). Negligence or failure, on the part of an officer, to perform his normal duties, or to
conduct himself in a manner expected of his rank and appointment, where the nature or degree of
such negligence or failure is not considered serious enough, for the time being, to take recourse to
trial by a Court-Martial, the concerned Administrative Authority, the Principal Staff Officer at
Naval Headquarters or the Chief of the Naval Staff may also "log" an Officer;
(ii) In a case where the Administrative Authority, the Principal Staff Officer at Naval
Headquarters or the Chief of the Naval Staff decides to "log" an officer, the officer concerned
should be informed of the allegations against him and the representation, if any, submitted by the
concerned officer should be considered before deciding whether and in what degree the censure is
necessary.
The format of such a letter or censure (admonishment) i.e. "logging" an officer will be similar
to the one used by the Commanding Officer."

(Ref: Gazette Extra Ordinary dt. 4 Sep 91. .

Mindef letter SRO No. 258-LA W191 dt. 31 Aug 91.)

(2) The "logging" of an officer, whether reported to the Chief of Naval Staff or not does not
constitute a punishment under the ordinance and is not a bar to subsequent trial either summarily
or by court-martial in respect of any such misconduct.

NOTE

The logging is to be recorded as a memorandum in the following form and kept in the
Captain's office; no entry being made in the Ship's Log :-

1. have had occasion to admonishrightright,.........

(name, rank and designation of the officer being logged) and hereby record his having
incurred my displeasure in terms of N. Rule 123 for committing the following irregularity/
misconduct, namely :

(Here insert the details)

 2. *1 further consider the matter to be sufficiently serious to be brought to the notice of the
Chief of Naval Staff and forward the same to the ......(Administrative Authority) for further
action as he may deem fit.
*(Omit this para, if not applicable.)
Given under my hand on board BNSleftlefton therightrightday

Of…………….19

________________

Commanding Officer
BNS ……………..
Read and understood. …………………….
(Signature of the Officer being logged).
Date ……………………………….

CHAPTER IX

TRIAL BY COURT-MARTIAL

PART (I)-FRAMING OF CHARGES

124. Charge-sheet and charge.-(l) A charge. sheet shall , contain

the whole issue or issues to be tried by a court-martial at one time.

(2) A charge means an accusation contained in a charge-sheet that a person subject to the
Ordinance has been guilty of an offence.

(3) A charge sheet may contain one charge on several charges.

NOTES

1. Sub-rule (1)
(i) The charge-sheet is usually prepared by the commanding officer but in the case of trial by
court-martial, rule 131 makes the convening officer responsible for its correctness. It must
be signed by the officer in actual COn1lT'and of the ship or establishment to which the
accused belongs on the day on which he is remanded for trial. if trial is ordered, the order
must be added at the foot and signed by the convening officer.
(ii) The charge-sheet must di~c1ose that the officer, who signs it, is the accused's
commanding officer. Where two or more persons are jointly charged and they belong to
 different ships; or establishments steps should be taken to ensure that they are drafted and
put under the command of the same commanding officer.
(iii) There may be several charge-sheets, see rule 175; but the court can only deal with one
charge-sheet at a time. When there are two or more charge-sheets they must be
consecutively numbered

2. Sub-rule (2). The "charge" here referred to is the formal written charge upon which the
accused is to be tried, as distinct from the charge or complaint (mentioned in rules 46 to 50)
which gives rise to preliminary investigation. Legal exactitude in framing charges is not
necessary during summary trial.

3. Sub-rule (3).-All charges, including alternative charges must be consecutively numbered.

As to insertion of charges in separate charge-sheets, see rule 175 and notes.

125. Commencement of charge-sheet.-Every charge-sheet shall begin with the name and
description of the person charged, and shall state his number, rank, name and ship or
establishment. When the accused person does not at the time of the trial belong to the regular
navy, the charge-sheet shall show by the description of him, or directly by an express averment,
that he is amenable to naval law in respect of the offence charged.

NOTE

As to the correct form U), which every charge-sheet should begin, see Third Appendix to the
rules under the heading "Commencement of Charge-sheet."

126. Contents of charge.-(l) Every charge shall state one offence only, and in no case shall
an offence be described in the alternative in the same charge.

(2) Each charge shall be divided into two parts, namely;

(a) the statement of the offence and

(b) the statement of the particulars of the act, neglect or

omissioJ.1l constituting the offence.

 (3) The offence shall be stated, if not a civil offence. in the words of ~ho ordinance; and if a
civil offence, in such words as sufficiently described that offence, but not necessarily in legal
terminology.

(4) The particulars shall state such circumstances respecting the alleged offence as will enable
the aCcused to know every act, neglect or omission which it is Intended to prove against him as

constituting the offence.:

(5) The particulars in one charge may be framed wholly or partly by a reference to the
particulars in another charge; and in that case so much of the latter particulars as is so referred to
shall be deemed to form part of 1hefirst mentioned charge as well as of the other charge.

(6) Where it is intended to prove any facts in respect of which any deduction from pay and
allowances can be awarded as a consequence of the offence charged, the particulars shall state
those facts, and the sum of the loss or damage it is intended to charge.

NOTES

1. As regards the "statements of offence" in respect ,of the various offences punishable under
the Ordinance, see Third Appendix to the rules.. Specimen charges have been included in the
notes to al1 the penal sections of the Ordinance namely sections 29 to 79. These should be
consulted when drafting a charge under any of those sections.
2. A charge which is bad in law may invalidate the proceedings and thus end in an abortive
trial. Some of the errors which commonly occur in the drafting of charges are noted below and
every effort should be made to guard against such pitfal1s:

A. (i) A single charge disclosing two separate offences would be a had charge.
e.g. a charge under section 41 of "using insulting language and be having with contempt".
See notes to section 41. But the use of the word "and" in the statement of offence is
permissible where the charge discloses only one offence e.g. a charge under section 64 of
"losing arms and ammunition issued to him for his use for naval purposes", because the
accused is not charged with two offences, but with a single offence which is constituted by
his having lost the various articles specified in the charge.

ii) A single charge disclosing two separate offences even in the alternative would be a
bad charge, e.g., a charge under section 41 of "using insulting language or behaving with
contempt to his superior officer"

B. A single transaction though technically disclosing more than one offence,

should not, as a rule, be made the subject of more than one charge.-For instance,
where violance to superior is accompanied by insubordinate language, the
violence alone should be charged (assuming the evidence to be satisfactory), the
language being admissible in evidence as to the intent, see section 39, note 8.
 On the other hand, if it seems desirable a man can legally be charged in two separate
charges with "escaping from custody" (section 61) and "absence without leave "(section 47)
(following such escape).

The statement of the particulars must support the statement of the offence, e.g. if the
statement of an ,offence laid under section 63 (a) alleged that the accused committed
"theft of property belonging to the Government" and the particulars stated that the
accused dishonestly received or was in unauthorised possession of the property such
particulars would not support the statement of the offence and the charge would
be a bad charge and the )act that the accused pleaded guilty to it would not affect the
C. matter.

But a mere technical difference (e.g., where the word assault is used in the statement of
offence and the [particulars disclosed the use of criminal force), would not invalidate the-
charge, if the statement of offence and the particulars taken together supply the court and the
accused with sufficient information of the nature of the offence which the court ha.-; to try
and the accused to meet.

Where the statement of offence discloses an offence under the Ordinance and one or more
essential elements of that offence are; omitted from the particulars, e.g., the word
"dishonestly", in a charge of” dishonestly misappropriating", or the words" knowing it to be
stolen" in a charge of" receiving", the omission of that, element from the particulars would
not invalidate the charge, if taken as a whole, it informs the accused of the al1egations he is
cal1ed upon to meet, and the offence for which he is arraigned.

Sub-rule (3).-When civil offences are tried by court-martial under section 78, although
technical terms need not be used in, the charge, the essence of the civil offence must be
D. expressed,

Sub-rule (4).-The statement of particulars should state shortly in ordinary language what
the accused is al1eged to have done. All the ingredients necessary constitute the offence
should be specified for example, if the charge is under section 40, for "wilfully
disobeying a lawful command given by his superior officer", the particulars must state
the command, the rank and name of the superior officer who gave the command, and the
E. fact that the accused disobeyed it.

Where a state of mind, e.g., intention or knowledge, is an essential ingredient of the

offence, such state of mind should be stated in the particulars, for example, see specimen
charges in the notes under various sections which require a particular intent (e.g. sections 29
to 32) or a particular knowledge (e.g. sections 37, 63 (d), 69. 72. etc.)
 Vague statements must be avoided, e.g., in charge for using threatening (or insulting)
language (section 41), or for making a false accusation (section 72), it is not sufficient to
state that the accused "used threatening (or insulting) language", or "made a false
accusation., knowing such accusation to be false"; the words alleged to have been spoken
or written must be set out in the particulars. Similarly, in a charge under section 42,
it is not sufficient to state that the accused neglected to obey a general or a local order by
doing a particular act; the order, which the accused is alleged to have neglected to obey
F. must be set out in the particulars; see specimen charge in the notes to section 42.

3. Sub-rule (5).-If the particulars in a charge are framed wholly or partly by a reference to the
particulars in an earlier charge, and the accused is acquitted of the earlier charge but convicted of
the second charge, the court when recording a finding; of guilty on the second charge, should
specify the place and date mentioned in the earlier charge.

4. Sub-rule (6). In a case where any loss or damage has been caused e.g. to Government or
Service property as a consequence of an offence and so that the court might order penal
deductions to compensate, wholly or partly, for such loss or damage, the particulars of the charge
must state the facts in respect of which such deduction can be awarded. Unless these facts are
stated in the particulars and proved in evidence, the court cannot award the punishment of penal
deductions specified in section 80(1) (i) and explained in section 81 (9). See specimen charges
under sections 64 and 65 of the Ordinance.

127. Validity of charge-sheet. - (l) A charge-sheet shall not be invalid by reason only of any
mistake in the name or description of the person charged, if he does not object to the charge-sheet
during the trial it is not shown that injustice has been done to the person charged.

(2) In the construction of a charge-sheet or charge there shall be presumed, in favour of

supporting the charge, every proposition which, though not expressly stated therein, was
necessary to support its validity and. can be fairly implied by it.

NOTES

1. Sub-rule (1) - Although the trial of an offender is not invalid on account of a mistake in
name, such mistakes are dangerous, in so far as they may lead to mistakes of substance. For
instance, the accused might thus be mistaken for a man named in a certificate of previous
conviction or in the sheet-roll and a mistake of this description might cause the invalidity of the
whore proceedings. Where, however, a man has been enrolled and is commonly known under an
assumed name, he may be described by that name. The court has power to amend the charge by
correcting any mistake in the name or description of the accused, see rule 143 (1) (a).

2. Sub-rule (2).-This sub-rule must not be regarded as excusing any carelessness in preparing
charge-sheets. It enables a court to presume matters which though not stated in the charge, are
necessary to support its validity, and can reasonably be implied from it.
PART (2)-W ARNING TO ACCUSED OF THE TRIAL AND PREPARATION OF DEFENCE

128. Rights of accused to prepare defence.-(1)An accused person for whose trial a court-
martial has been ordered to assemble shall be afforded proper opportunity of preparing his
defence, and shall be allowed free communication with his witnesses and with any friend
defending officer or legal adviser whom he may wish to consult.
(2) As soon as practicable after an accused has been remanded for trial by court-marital, and
in any case not less than forty-eight hours before his trial, an officer shall give him gratis a copy
of the summary of evidence and explain to him his rights under these rules as to preparing his
defence and being assisted or represented at the trial, and shall ask him to state in writing whether
or not he wishes to have an officer assigned by the convening officer to represent him at the trial,
if a suitable officer should be available. The convening officer shall be informed whether or not
the accused so elects. If any other or additional summary of evidence be taken subsequently, a
copy there of shall be given gratis to the accused as soon as may be.

NOTES

1. The accused should be afforded all facilities in preparing his defence and, consistent with the
necessities of discipline and his safe custody, he should be allowed absolutely free
communication with his legal adviser, defending officer or friend as well as with any witnesses
that he may wish to call in his defence. He is, of course not bound to call as a witness everyone
with whom he communicates as a possible witness on his behalf.

The accused, however, or the defending officer is not entitled to interview witnesses for the
prosecution without special authority.

2. Where an accused selects a particular officer to act as his defending officer, that officer
should, if practicable, be made available, see rule 195 (2). If the accused declines the services of a
defending officer, and he is not represented by counsel, a certificate signed by the accused stating
that he has declined the services of a defending officer should be attached to the proceedings.

3. As to the defending officer and. friend of the accused, see rule 195, and as to counsel at
general and district court-martial see rules 196 to 201. As to the right of the accused to consult the
judge advocate on any question of law or procedure, see rule 203 (1).

4. A copy of the summary of evidence and of the additional summary, if any, should personally
be handed over to the accused by a responsible officer, not less than 48 hours before the trial.

5. For power to dispense with this rule, see rule 134.

129. Warning to the accused of the trial.-(1)The accused, before he is arraigned, shall be
informed by an officer of every charge on which he is to be tried; and also that, on his giving the
names of any witnesses whom he desires to call in his defence, reasonable steps will be taken for
securing their attendance and such steps shall be taken accordingly. The interval between his
being so informed and his arraignment shall be such as, to allow him sufficient time to consider
his defence and shall not in any case be less then forty-eight hours.

(2) The officer, at the time of so informing the accused, shall give the accused a copy of the
charge sheet and where the accused is, a sailor, shall, if necessary, explain the charge-sheet and
the charges to him and shall also, if he so desires, give a vernacular translation of the charge-
sheet to him.
(3) A list of the ranks, names and ships or establishments of the officers who are to form the
court, and where spare members are named, also of those members shall as soon as they are
named be delivered, to the accused, if he so desires.

(4) If it appears to the court that the accused is liable to be prejudice at his trial by any non-
compliance with this rule, the court shall take steps, and if necessary, adjourn, to avoid the
accused being so prejudiced,

NOTES

1. Sub-rule (1)1 As to arraignment of the accused, see rule 141 and notes thereto.

2. As to the duty of procuring the attendance of witnesses for the accused, see rules. 207 and
208. Even if this rule is suspended under rule 134, the accused must be given information of
every charge on which he is to be tried and the opportunity of calling his witnesses.

3. The request of an accused person for witnesses to be called on his behalf should not be
refused; unless, it is quite clear that their evidence would be immaterial, or if their attendance
cannot be secured within a reasonable time. If the request is refused the refusal and, reasons for it
should be communicated to the court who will deal with the matter under sub rule (4) or under
rule 209. If an essential witness is absent, the court should always adjourn for the purpose of
enabling him to attend or of procuring his examination on commission under section 117 of the
Ordinance.

For forms of summons to the witnesses, see Fourth Appendix to these rules.

4. sub-rule (2).- In the case of a sailor, even where this rule has been dispensed with (under
rule 134), the-charge(s) must be clearly explained to the accused, as otherwise he may not have
proper opportunity to prepare his defence. If the accused objects to the charge, he will have an
opportunity of making his objection when called upon to plead; see rule 142.

5. Sub-rule (3).-The list of the members should be delivered to the accused, irrespective of any
demand in his part, as soon as their names are known.

6. For power to dispense with this rule, see rule 134.

 130. Joint trial of several accused persons.-(l) Any number of accused persons may be
charged jointly and tried together for an offence averred to have been committed by them
collectively.

(2) Any number of accused persons, although not charged jointly, may be tried together for an
offence averred to have been committed by one or more of them and to have been abetted by or
attempted by the other or others;

(3)Where two or more persons are charged jointly and tried together under sub-rule (I), or
where two or more accused persons although not charged jointly, are tried together under sub-rule
(2), anyone or more of such-persons may at the same time be charge and tried for any other
offence alleged to have been committed by him or them individually or collectively; provided that
all the said offences are founded on the some facts, or form or are a part of a series of offences of
the same or similar character.

(4) In any case falling under sub-rule (1), (2) or (3), notice of intention to try the accused
persons together shall be given to each of the accused at the time of his being informed of the
charge, and any accused person may claim either by notice to the authority convening the court
or, when arraigned before the court, by notice to the court, that he or some other accused be tried
separately on one or more of the charges included in the charge-sheet, on the ground that the
evidence of one or more of the other accused persons proposed to be tried together with him will
be material to his defence or that he would otherwise be prejudiced or embarrassed in his defence.
The convening authority or court, if satisfied that the evidence will be material or that the accused
"may be prejudiced or embarrassed in his defence as aforesaid; and if the nature of the charge
admits of this, shall allow the claim, and such accused person, or, as the case may be, the other
accused person or persons whose separate trial he has claimed, shall be tried separately, Where
any such claim has been made and disallowed by the authority convening the court, or by the
court, the disallowance of such claim, shall not be a ground for refusing confirmation of the
finding or sentence unless, in the opinion of the confirming authority, substantial miscarriage of
justice has occurred by reason of the disallowance of such claim.

NOTES

1. Sub-rules (I) and (2).-If one accused pleads guilty and the other not guilty, the trial of the
latter up to and including the finding must be carried out be fore the court deal with the case of
the accused who has pleaded guilty.

2. Sub-rule (3). - The fact that some of the charges are preferred only against one of the
accused should be clearly shown on the charge-sheet.

3. Sub-rule (4).-(i) Where it is clear that the defence of the accused persons who are tried
together under this rule will conflict, steps should be taken to ensure that they are separately
represented by defending officers or counsel.
 (ii) To admit a joint charge and trial the accused must have acted together with the
common purpose of committing the offence charged. In the case of "taking part in a mutiny"
the essence of the charge is combination between the accused. In such case the nature of
the charge may not admit separate trial. In cases of doubt, the accused should be tried
separately.

(iii) Certain offences cannot from their very nature be committed collectively. Such
offences are e.g.:-

Section 33 - improperly abandoning post or sleeping on watch; Section 57 - malingering;

Section 59 - intoxication;
Section 74 - giving false evidence; etc.
Speaking generally, offences where a person's individual state of body or mind is of the sense of
the offence, (e.g. desertion), should not be made the subject of a joint charge against two or more
persons, (see notes to section 46).

PART (3)-CONVENING COURT-MARTIAL

131. Procedure of convening a court-martial.-(l) An officer before convening a court-

martial shall first satisfy himself that the charges to be tried by the court are for offences within
the meaning of the Ordinance and that the evidence, justifies a trial on those charges, and if not so
satisfied, shall order the release of the accused, or refer the case to superior authority.
(2) He shall also satisfy himself that the case is a proper one to be tried by the description of a
court-martial he proposes to convene.

(3) The officer convening a court-martial shall nominate the officers to form the court, and
may also nominate .such sp. are members as he thinks expedient. He may also; where he
considers the services of an interpreter to be necessary, appoint or detail an interpreter to the
court.

(4) The officer convening a court-martial shall send to the officer nominated as its president
the original charge-sheet on which the accused is to be tried, the summary of evidence and the
order for the assembly of court-martial, and to each of the other officers nominated as members a
copy of the charge-sheet.

NOTES

1. As to the composition of different kinds of .court-martial, see sect.ion 99.

2. A court-martial which, after the commencement of the trial is reduced below the legal
minimum is dissolved under section 101. When, therefore, a trial is likely to be .prolonged, the
number of members detailed to serve should be in excess of the legal minimum required by
section 99. In doubtful and complicated cases also, it is advisable to detail additional members to
serve on a court-martial.

3. It is usually desirable to add two or more spare members in order to fill any vacancies caused
as a result of challenge or illness etc.
 4. In almost every case an intercept in the language of the accused person will be necessary; see
rule 186.

5. Where several persons are to be tried separately by the same court, a copy of the convening
order should be prepared for each accused. The original charge-sheet and convening order will
subsequently be annexed to the proceedings.

6. The object of sub-rule (4) is to enable the president of the court to have a general knowledge
of the case which is to come before it. If any amendment in the charges appears to him to be
required, he should communicate with the convening officers before the trial begins.

7. The summary of evidence must be read in court if the accused pleads guilty, and may be
used for determining the sentence; see sub-rule 147 (2). It may be used at the trial for the purpose
of showing that a witness has previously made a particular statement or is giving .evidence which
differs from that given by him when the summary was taken. Any statement of the accused
contained in the summary may be read to the court, but before reading such statement formal
proof should be given that it was made voluntarily. Except in the above instances the summary
cannot be read as evidence.

8. During the trial the president should compare the evidence given by each witness with his
statement contained in the summary of evidence and if there is any material variation, should
question him thereon.

Members of the court must take care that they are not unduly influenced by any statement
appearing in the summary of evidence, though they will naturally have regard, in testing the
credibility of a witness, to the fact that his evidence given at the trial is contradictory to his
statement at the summary. It is usually expedient that the president alone should refer to the
summary.
9. Where the accused pleads guilty, the summary of evidence is to be annexed in the
proceedings; see rule 147(2) and the Form of proceedings given in the Fourth Appendix to these
rules.
If the accused pleads not guilty, the summary should be enclosed with the proceedings when
sent to the confirming officer, but it should only be annexed to the proceedings if it has been used
in evidence.
10. Sub-rule (1).-The convening officer after satisfying himself that the charges are in order, is
to personally sign the orders for the trial at the end of the Charge-sheet.
11. Sub-rule (4). - The order for the assembly of the Court-Martial is also to be personally
signed by the convening officer in the following form as set out in the Fourth Appendix to the
rules:-
Orders by …………………………………………………..
Place …………….. Date ……….

The detail of officers as mentioned below will assemble at……… on the............day of

…….....19….., or as soon thereafter as practicable, for the purpose of trying by a.. . . . . . . . . . . . .
court-martial the accused person (persons) named in the margin (and such other person or persons
as may be brought before them)

President. Members.
Spare Members.
Judge-Advocate.

Prosecutor

The accused will be warned, and all witnesses duly required to attend.

The proceedings (of which only one copy is required) will be forwarded to. . . .

Signed thisleftleft.day ofrightright.19..........

(Place) .. . . . . . . . . . . . . . . . . . . . . .

Convening Officer.

12. The duty of appointing the prosecutor also develoves on the convening officer and in trials
by general, court-martial and in complicated cases a prosecutor with experience and knowledge
of Naval law is normally to be selected. In ordinary cases the commanding officer of the accused
who carried out the summary trial or the president of the board of enquiry which investigated the
subject of the charge against the accused, should be appointed prosecutor.
13. The convening officer is also to ensure that necessary instructions are issued to another
ship/establishment (for shore battery) in the vicinity to carry out either of the following court-
martial ceremonial, if it is impracticable for the following court-martial ceremonial, if it is
impracticable for the ship or establishment, in which the court-martial is to he held, to do so:-

(i) Firing of the court-martial gun. (N.R. 1722).

(ii) Provision of the guard for the president and members of the court-martial (N.R. 1754 &:
1755).

132. Adjournment for insufficient number of officers.-(1) If before the accused is

arraigned, the full number of officers nominated are not available to serve, by reason of
ineligibility, disqualification, challenge or otherwise, and if there are not sufficient, number of
spare members to take the place of those unable to serve, the court shall ordinarily adjourn for the
purpose of fresh members being appointed; but if the court are of the opinion that in the interest
of justice and for the good of the service it is inexpedient so to adjourn, they may, if not reduced
in number below the legal minimum, proceed, recording their reasons for so doing.
 (2) If the court adjourns for the purpose of the nomination of a new president or of fresh
members whether under these rules or otherwise, the convening officer may if he thinks fit,
convene another court.

NOTES
1. For legal minimum required for a court-martial, see section 99.

2. Sub-Rule (l).-A general court-martial, for which, say seven members have been detailed,
will not ordinarily begin the trial with less than seven. It may be assumed, that the convening
officer in detailing seven members when five would have legally sufficed, had in view the
possible prolongation of the trial; or, the desirability in the circumstances of the case of
submitting the issues to be decided to the arbitration of a larger tribunal. But under this sub-rule
the court may proceed unless reduced below the legal minimum.

(See notes 2 and 3 to rule 131).

3. Sub-rule (2).-New president will be necessary if the president who has been detailed is
found ineligible or disqualified or if an objection to him is allowed or if he cannot attend. The
court must adjourn to report to the convening authority for appointment of a new president.

After the trial has once begun fresh members cannot be appointed in any circumstances (see
section 101).

133. Ineligibility and disqualification of officers for courtmartial,-(1) An officer is not

eligible for serving on a court-martial unless he is subject to the Ordinance.

(2) An officer is disqualified from serving on a general or district court-martial if he.

(a) is the officer who convened the court; or

(b) is the prosecutor or a witness for the prosecution; or

(c)investigated the charges before trial, or took down the summary of evidence, or was a
member of a board of enquiry respecting the matters on which the charges against the
accused are founded; or

(d) is the commanding officer of the ship or establishment to which the accused is
attached or belongs at the time of the commission of the offence or at the time of the trial; or

(e) was a member of a previous court-martial which tried the accused in respect of the
same offence; or

(f) has a personal interest in the case.

 NOTES
Eligible is used with reference to an officer being subject to the Ordinance and of the necessary
standing i.e. he must have held commission for a period of not less than three years and must
be of or above the rank of lieutenant (see section 99). In other words, it refers to the status of
1. the officer and involves no personal considerations.
Disqualified is used with reference to the personal qualification of an officer. It is immaterial
to which branch of the Navy the officer belongs, as long as he is not disqualified under sub-
2. rule (2).
Personal interest.-This will extend to even a remote or very small interest, e.g., in a charge
relating to the theft of a sum of money however small belonging to an officers' mess, or a club,
every officer of that mess or club has a personal interest, and is therefore disqualified. A
merely technical interest has been held to disqualify a person from holding a judicial position,
e.g., a person who holds, as trustee or otherwise on behalf of others, money in which he has no
beneficial share himself, nevertheless has a personal interest in any charge relating to that
3. money.

134. Suspension of rules on the ground of the exigencies of the service or the necessities of
discipline.- Where it appears to the officer convening a court martial, or to the senior officer on
the spot that exigencies of the service or the necessities of discipline, render it impossible or
inexpedient to observe any of the provisions of sub-rule (2) of Rule 50, rules 128 and 129, he may
by order under his hand, make a declaration, to that effect specifying the nature of such
exigencies or necessities, and there, upon the trial or other proceedings shall be as valid as if the
rule mentioned in such declaration had not been contained herein; and the declaration may be
made with respect to any or all of the aforesaid rules in the case of the same court-martial.

Provided that the accused shall have full opportunity of making his defence, and shall be
afforded every facility for preparing it which is practicable, having due regard to the said
exigencies or necessities.

NOTES

1. The declaration, dispensing with certain rule~, must be signed and dated by the competent
authority on the following form-as set out in the Fourth Appendix to these rules-before the
provisions of this rule can be made applicable to a court-martial;:-

In my opinion exigencies of the service/the necessities of discipline namely . . . . . . . .

…………...*render it impossible/inexpedient to observe the provisions of
ru1e(s)……………………**on the trial of…………….by……..........court-martial assembled
pursuant to the order of the………....of............

Signed atleftleftthisleftleft.... .day ofrightright.19..

(Signature).
_______________________________________________________

(1nstructions: This declaration must be signed by the officer whose opinion is given, and will be
annexed to the proceedings. It should not be included to the Convening Order but should be a
separate document).

*State these.

**State the rule or rules which cannot be observed (see 134).

__________________

2. The power conferred by this rule should rarely be exercised, except on active service and
then only if absolu1ely necessary. Occasionally it may be necessary, to resort to it in the case of
embarkation or possibly in an extreme case where the necessities of discipline require speedy trial
and punishment.

In exercising the power conferred by this rule, it is not necessary to dispense with all the
provisions mentioned, e.g., it may be expedient to comply with sub-rule (2) of rule 50 but not
with rule 128.

3. If sub-rule (2) of rule 50 is suspended steps must be taken to inform the accused before hand
of the nature of the charge the names of the witnesses and the purport of their evidence and the
court must take care that the accused is not prejudiced by reason of the suspension as for instance
by not having received a summary of evidence.
4. Rule 129 (3) should always be complied with and rule 129 (1) and (2) if not complied with
within the time therein mentioned, should be complied with as soon as possible before the court
assembles.

5. The accused will not have full opportunity of making his defence unless receives in reasonable
time the information mentioned above; and if he requests a reasonable adjournment in order to
consider the witnesses evidence, or to acquaint himself with the charge, or requests the
postponement of the cross-examination of a witness the court should grant the request, and may
adjourn for the purpose. A refusal might be held to be non-Compliance with the proviso and thus
to invalidate the trial. For the same reason, the court even in the absence of such request, must
take care that the accused is not prejudiced by being taken by surprise, either by the charge or by
the evidence of the witnesses.

PART (4)-PROCEDURE AT TRIAL

135. Inquiry by court as to legal constitutions.-(I) On the court assembling, the order
convening the court shall be laid before them together with the charge-sheet and the summary of
evidence, or a true copy thereof, and also the ranks, names, ships or establishments of the officers
appointed to serve on the court, and it shall be the first duty of the court to satisfy themselves that
the court is legally constituted; that is to say:-
(a) that as far as the court can ascertain, the court has been convened in accordance with the
Ordinance and these rules;
(b) that the court consists of a number of officers not less than the legal minimum required by
section 99 and save as mentioned in rule 131 not less than the number detailed;
(c) that each of the officers so assembled is eligible and not disqualified for serving on that
court...martial;
(d) that the president and other members are of the required rank; and
(e) that the judge-advocate, if any, is duly appointed and is not disqualified for acting at
that court-martial.

2. The court, if not satisfied on any of the above matters, shall report their opinion to the
convening authority, and may adjourn for that purpose.

NOTES
1. Court-martial Ceremonial.- The following ceremonial is to be observed on each day on
board the ship or establishment on which the court-martial is being held ;
(i) The Bangladesh National Flag to be hoisted-at the peak or at the yardarm, as
appropriate-when the Colours are hoisted.
(ii) A gun to be fired immediately after the Colours have been fully hoisted and before the
"carry on” is sounded.

Note,-It is normally to be fired by the ship or establishment in which the court-martial is to be

held, but if this is impracticable for any reason, the gun may be fired by any other ship,
establishment or shore battery in the vicinity as directed by the convening authority,
(iii) The National Flag to be dipped between each separate sitting of the court and to be
hauled down when the court adjourns for the day, see N.R. 1722).
(iv) A petty officer's guard to be paraded for a captain or commander attending a court-
martial as president or member, on arrival as well as on departure. The president, if he
wishes, may order that marks of respect are not to be rendered on the departure of the court.
The guard is to present arms only to captain.
Note.-(1) Where it is not possible for the ship in which the court-martial is to be held to
provide the guard instructions for the guard to be provided by another ship are to be
issued by the convening authority.

(2) Guard is not to be paraded for officers below the rank of commander (see
N.R. 1741, 1742, 1754 and 1755).

(v) The side to be piped-only on board ships (not in shore establishments) -whenever the
president or a member or a court-martial is proceeding to or returning from the court
(see N.R. 1741 and 1744).
 (vi).It enhances the dignity of the occasion if members of the court arrive and leave
the ship in which the trial is taking place singly in their own boats. Members should make
a point of arriving before the president and await his arrival on the quarter-deck. The
president should arrive as punctually as possible and it is polite for, the ship to
compliment him on his punctuality by striking the bell in between the pipes. For example,
if the court-martial has been summoned for 0930 one should hear the boatswain's first
pipe as the president comes alongside followed by three bells struck smartly by the
quartermaster in the back ground followed by the second pipe as the president comes up
the ladder.

2. The inquiries necessitated by this and the following rule should be conducted by the court
viz by the president the members the judge advocate in closed court. The court is not "open" at
this stage and the accused has not yet been brought before it. Nor should the prosecutor or
defending officer or cou~1 be admitted.

3. The convening order charge-sheet and summary of evidence will be in the possession of the
president .see rule 131- (4).

4. It is essential that the court should ascertain as far as lies in their power, that they have
jurisdiction. The convening order must in every case be signed personally by the convening
officer and not by any other officer "for" him. The absence of a properly signed convening order
is a fatal flaw although an order for trial is endorsed upon the charge-sheet. Apart from the
specific requirements of this rule the court must be satisfied that it is constituted strictly in ac-
cordance with the convening order.

5. If the court is satisfied that a member is not able to serve due to illness, ineligibility or
disqualification; the senior of the spare members is to take his place.
6. The court in considering whether they are convened in accordance with the Ordinance and
the rules can only look at the convening order. The convening officer is responsible the
convening order. The convening officer is responsible him to convene the court and the court are
not required to satisfy themselves in his respect .
7. For legal minimum see section 99: and for eligibility and disqualification of members see
rule 133. The eligibility and disqualification of a spare member should also be considered by the
court at this stage.
8. As to the required rank of the president and other members .see sections 96 to 99.

9. As to the disqualification of a judge advocate .see rule 202 (2).

10. When a board of inquiry has been held respecting a matter upon which a charge against
the accused is founded the president should insert in red ink, at the bottom of the first page of the
proceedings a certificate to the following effect:

"I have satisfied myself that none. of the officers detailed as members of this court has
previously served upon any board of inquiry respecting the matters forming the subject of
the charge(s) before this court-martial".
 (See Form of proceedings of a general (or district) court-martial in Fourth Appendix to these
rules).

136 Inquiry by court as to amenability of accused and validity of charge.-(1) The court,
when satisfied on the above matters, shall satisfy themselves in respect of each charge about to be
brought before them:

(a) that it appears to be laid against a person subject to the Ordinance and to the
jurisdiction of the court; and
(b) that each charge discloses an offence under the Ordinance and is framed in accordance
with these rules, and is so explicit as to enable the accused readily to understand what he has
to answer.

(2) The court, if not satisfied on any of the .above matters, shall report their opinion to the
convening, authority and may adjourn for that purpose.

NOTES

The inquiry by the court under this and the preceding rule should be conducted in closed
1. court; see note 1 to rule 135. .
2. For amenability of the accused to naval Jaw see sections 2 and 5.
3. As to the validity of charges see rules 124 to 127 and notes thereto.

137. Appearance of accused prosecutor and defending officer:- When the court have
satisfied themselves as to the above facts, they shall cause the accused to be brought before the
court. The Prosecutor, who must be a person subject to the Ordinance, the counsel for the
prosecution, if any, the defending officer, the counsel or friend of the accused if any, shall than
take their respective places.

NOTES
Before the president declares the court open he is to ensure that the officer of the court has
1. reported that an tile witnesses are in attendance.
It is customary for the court and the judge advocate to have their caps on until the
2. administration of the oath after which they remain uncovered.
The accused is to be marched into the court by the provost marshal with his sword drawn and
cap on. The accused is to remain standing until the president gives him permission to sit. This
is usually done after a special plea to the jurisdiction or a plea in bar of trial if any and after
the general plea of "guilty" or "not guilty". The provost marshal follows the motion of the
3. accused as regards standing or sitting.
If the accused is an officer his sword in its scabbard is laid on the table opposite the president
so that neither the hilt nor the point is towards the accused. The officer of the court is to ask
4. the accused for his aword when he enters the court and to place it on the table.
5. On entering the court the prosecutor the defending officer and the friend of the accused salute
 the president.
The counsel for the prosecution or for the defence is to wear role and on entering the court is
6. to bow to the president.
All the witnesses are to be present in the court until after the accused persons have been
7. arraigned when the president shall direct them to withdraw.
After the audience is admitted the president shall direct everybody except the accused and the
8. prov08t marshal to sit down

138. Proceedings for challenges on members of the court.-(1) The order convening the
court shall be read in the hearing of the accused and he shall be asked, as required by section 109
on the Ordinance, whether .he objects to be tried by any officer siting on the court. Any such
objection shall by disposed of in accordance with the provisions of section 109 and the following
procedure, namely:
(a) The accused shall state the names of all the Officers to whom he objects before any
objection is disposed of.
(b) The accused may call any person to give evidence in support of his objection,
such person may be questioned by

the accused and by the court.

(c) If more than one officer is objected to, the objection to teach officer shall be
disposed of separately, and the objection to the lowest in rank shall be disposed of first;
except that, if the president is objected to, the objection to him shall be disposed of
before the objection to any other officer. On an objection to an officer all the other
officers present shall vote on the disposal of the objection, notwithstanding that
objections have been made to any of these officers.
(d) When an objection to the president or to any other officer is. allowed, the court shall
follow the procedure laid down in sub- sections (3) and (4) of section 109 respectively;.
(e) The eligibility, absence of disqualification and freedom from objection of an officer
filling a vacancy shall be ascertained by the court, as in the case of other officers appoin-
ted to serve on the court.

(2) The accused shall have no right to object to the prosecutor or the judge-advocate.

NOTES

1. This rule must be read with section 109.

2. The principle underlying section 109 and this rule is that the court should not only be
impartial but be believed by the accused and his comrades to be so. Therefore in a doubtful case,
the objection should always be allowed.
3. An officer objected to on the ground of personal enmity, prejudice or malice or for having
formed or expressed an opinion on the case should unless the objection is obviously groundless
 himself request and be permitted to retire. An officer successfully objected to on the ground-of
personal interest is disqualified from serving as a member; see rule 133 (2) (f) and notes.
The court may be closed to consider each objection.

4. Sub-rule (1) (a).-The accused must make each objection separately. He cannot object to
the court collectively except upon a plea to the-jurisdiction under rule 144. If the accused persists
in objecting to the court collectively the court should treat the objection as made to all members
individually, and the procedure provided by sub-rule (I) (c) should be followed.
5. Sub-rule (1) (b).-At this stage the witnesses cannot be examined on oath, as the court are
not yet sworn, but rule 212, as to the mode of questioning witness shall substantially apply.
6. Sub-rule (1) (c).-Excludes an officer from voting on his own case but all the other Officers
present, namely those who have not returned upon objections to them being allowed, must vote
on the disposal of the objection.

7. Sub-rule (1) (d).-When an objection to the president or to any other officer is allowed, the
court must follow the procedure laid down in sub-sections (3) and (4) of section 109 respectively.
It is the duty of the president to appoint, the first officer nominated as a spare member, to fill any
vacancy thus created. If the president is himself successfully objected to, the court must adjourn
until a new president is appointed by the convening authority. Similarly, if there is no spare
member available and the court are reduced in number below the legal minimum, they must
adjourn for the purpose of the appointment of fresh members; and even though not so reduced,
they should ordinarily adjourn unless they are of the opinion that, in the interest of justice and for
the good of the service, it is not expedient to do so; (rule 132).

8. Sub-rule- (1)(e).-It is desirable to ascertain before the accused is brought the court whether
a spare member is eligible and qualified to serve if called upon. An objection to a spare member
called upon to serve will be deal with immediately. If he is junior to any other officers who have
been objected to; if he is not, the section to junior officers will first be disposed of and he will
have to vote on such objections.

9. As to the voting by members, see section m. The decision of the majority prevails. As the
president has no second or casting vote in respect of objection to members, in case, there is an
equality of votes, the decision shall be in favour of the accused.

139. Swering or affirming of members.-(l) As soon as the court is constituted with the proper
number of officers who are not objected to, or the objections to whom have been over--ruled, an
oath or affirmation shall be administered to, and taken in the presence of the accused by, each
member of the court, in the form given in the Fourth Appendix to these rules, or in such other
form to the same purport as the court ascertains to be according to his religion or binding on his
conscience.
(2) If there k a judge-advocate, the oath or affirmation shall be administered by him to the
president first, and afterwards to the other member of the court. If there is no judge-advocate the
oath on affirmation shall be administered by the president to the other members at the court, and
shall be administered to the president by any member of the court already sworn or affirmed.

NOTE

See notes to rule 140 below

 140. Swearing or affirming of judge-advocate and other persons.-(1) After the members
of the court are all sworn or have affirmed, an oath or affirmation shall be administered in the
presence of the accused to the following persons or such of them as are present at the court-
martial, in such of the forms as are provided in the. Fourth Appendix to these rules as may be ap-
propriate or' such other form to the same purport as the court ascertain to be according to the
religion or otherwise binding on the conscience of the person to be sworn or affirmed:-

(a) Judge-advocate;
(b) Officers attending for the purpose of instruction;
(c) shorthand writer;
(d) Interpreter.

(2) If there is a judge-advocate, he shall be administered the oath or affirmation by the

president. The judge-advocate shall then administer oath or affirmation to others. If there is no
judge-advocate, the oath or affirmation shall be administered by the president or by some member
of the court.

NOTES

1. Rules 139 and 140 must be read with section 110 of the

Ordinance.

2. In general practice, Muslims and Hindus are affirmed. Christians and Sikhs are generally
sworn, the former on the New Testament or some book containing it, the latter on the Granth
Jews are sworn on Old Testament.

3. A person taking the oath shall place his hand on, or hold, the book and will repeat the oath
after the person administering it. It is not necessary to kiss the book. The oath must be
administered and taken with solemnity. The members are to be sworn separately.

4. Affirmations are repeated by the person making affirmation after the person administering
it.

5. Normally the oath or affirmation is to be administered in the following form, as set out in
the Fourth, Appendix to the rules, but it may also be administered to the person to be sworn or
affirmed in such other form to the same purport as the court ascertains to be according to his
religion or binding on his conscience:

(i) President and Members.

I……….. (name in full). .. . .. .. .. .. .. .. . swear by Almighty God/do solemnly, affirm that I will,
well and truly, try the accused before the court according to the evidence, and that I will duly
administer justice according to the Navy Ordinance, 1961 and the rules made thereunder, without
partiality, favour or affection; and I do further swear/affirm that I will on no account at any, time
whatsoever, disclose or discover the vote or opinion of any particular member, of this court-
martial, unless thereunto required in due course of Iaw.

(ii)Judge- Advocate.
I………………….…. (name in full)………….…………. swear by Almighty God/do solemnly
affirm that I will to the best of my ability carry out the duties or the judge-advocate in accordance
with the Navy Ordinance and the rules made thereunder without partiality, favour or affection;
and I do further swear/affirm that I will not on any account whatsoever, disclose or discover the
vote or opinion on any matter, of any particular member of this court-martial, unless thereunto
required in the course of law.

(iii) Officers under instruction.

Ileftleft, (name in full)leftleft……..swear by Almighty God/do solemnly affirm that I will not on
any account, at any time whatsoever, disclose or discover the vote Or opinion of any particular
member of this court-martial unless thereunto required in due course of law.

(iv) Shorthand writer.

I ……………………… (name in full)……………………swear by

Almighty God/do solemnly affirm that I will truly take down to the best of my power the
evidence to be given before this court-martial, and such other matters as may be required, and
will when required, deliver to the court a true transcrip of the same.

(v) Interpreter.

I…………….(name in full)……………………..swear by Almighty God/do solemnly affirm

that I will to the best of my ability truly interpret and translate, as I shall be required to do
touching the matter before this court-martial.
(vi) Witnesses.

I,leftleft….(name in full)………………….swear by Almighty God/do solemnly affirm that the

evidence which I shall give before this court, shall be the truth, the whole truth, and nothing but
the truth.

141. Arraignment of accused.-(l) After the members of the court and other persons are sworn or
have affirmed as herein before provided, the accused shall be arraigned on the charges against
him.
 (2) The charges upon which the accused is arraigned shall be read out and if necessary,
translated to him and shall be required to plead separately to each charge.

NOTES

1. The accused should be arraigned by the president, or if there is a judge advocate

present, by the judge-advocate.

2. Arraignment consists of:

(i) calling upon the accused by his number, rank, name and description as given in the charge-
sheet and asking him "Is that, your number, rank and name" etc. ?;

(ii) reading the charge to him; and

(iii) asking him "Are you guilty or not guilty of the charge against you, which you have heard
read over"?

3. Where two or more persons are jointly charged and tried for the same offence, each is
separately arraigned. Where there are more charge-sheets than one against an accused, he must be
arraigned and tried upon the first charge-sheet before arraignment upon the second or subsequent
charge-sheets, see rule 175.

4. Under rule (l314) a copy of the charge-sheet is supplied to every officer nominated as member
of the court. The original charge-sheet, which is supplied to the president, will be annexed to the
proceedings.

5. The plea of the accused must be taken on all the charges in a charge sheet. This applies to
alternative charges if the accused has been, arraigned upon them, but see rule 146 (3).
 142. Objection by accused to charge.-(l) The accused, when required to plead to any
charge, may object to the charge on the ground that it does not disclose in offence under the
Ordinance, or is not in accordance with these rules.
(2) The court, after hearing any submission which may be made by or on behalf of the
accused and the reply of the prosecutor, shall consider the objection in closed court and shall
either disallow it and proceed with the trial, or allow it and adjourn to report to the convening
authority, or, if they are in doubt, they may adjourn to consult the convening authority.

NOTES

1. 0ffence under the Ordnance.-For example, a charge laid under section 64, which
alleges:-"By negligence damaging property of a comrade", would not disclose an offence under
that section.

2. "…. in accordance with these rules", See rules 124 to 127, e.g. that the charge discloses
two Separate offences (using insulting language and behaving with contempt) or that it was bad
for vagueness ("making a false accusation knowing such accusation to be false"; without stating
what the false accusation consists of).

See notes to rule 126.

3. Adjourn to report to the Convening authority.-once the court has allowed the objection, it
cannot continue with the trial and if the convening officer considers that the decision of the court
was wrong he must dissolve the court and order a fresh trial before a new court.

4. Consult the convening authority. The convening authority may either advise the court
what action to take of dissolves the court or convene a fresh court for the trial of the accused.
5. For procedure where it appears that the accused is by reason of insanity, unfit to take his
trial, see section 123 and rule 217.
 CHAPTER X

GENERAL PROVISIONS AS TO PROCEEDINGS

OF COURT-MARTIAL

170. Seating of members-The members of a court-martial shall take their seats in the following
order:

(a) The president shall be seated in the centre with the judge-advocate on his right and the next
senior member on his left remaining members shall be seated alternately to the right and left
of the president in the order of seniority.
(b) When there is no judge-advocate, the member next in seniority to the president
shall be seated on his right and the remaining members shall be seated alternately to
the left and right of the president in the order of seniority.

NOTES

1. This rule is prescribed in the interest of uniformity at court-martial trials and the prestige of
the member’s consonant with their ranks. The members will take their seats in accordance with
their seniority in the substantive rank but their failure to do so would not vitiate the trial.

2. In preparing convening orders the names of members appointed to form the court, or to be
spare members, should be mentioned in their correct order of seniority in the substantive rank.

171. Responsibility of president.- (1) The president shall be responsible for the trial being
conducted in proper order and in accordance with the Ordinance and with these rules, and in a
manner befitting a court of justice.

(2) It shall be the duty of the president to see that justice is administered, and that the accused
has a fair trial, and that he does not suffer any disadvantage in consequence of his position as a
person under trial, or of his ignorance, or of his incapacity to examine or cross-examine witness
or to make his own statement clear or intelligible, or otherwise.
 1. Sub-rule (1). The president should maintain the dignity of the court and the solemnity of its
proceedings. The court have powers under rule 223 for dealing with persons who interrupt their
proceedings.

2. If the accused is not represented by counselor defending officer, the president should take
care that he is not prejudiced in putting forward his defence by his inability to put proper
questions to the witnesses or bring .out clearly the points on which he relies. If there is a judge-
advocate he has a similar duty (rule 203 (7), but the presence of a judge-advocate does not relieve
the president of his responsibility under this rule. If a witness gives evidence different from that
given by him when the summary of evidence was taken, the president may question him as to the
difference, if the accused fails to do so.

The president should, always put to the witnesses any questions which appear to him
necessary or desirable or the purpose of eliciting the truth, see rule 215 and notes.

172. Duties of the prosecutor.-(1) It shall be the duty of the prosecutor to assist the court in
the administration of justice, to behave impartially, to bring the whole of the transaction before
the court, and not to take any unfair advantage of, or suppress any evidence in favour of, the
accused.

(2) The prosecutor shall not refer to any matter not relevant to the charge or charges then
before the court, or any matter which the court is not investigating, and it shall be the duty of the
court to stop him from so doing and also to restrain any undue violence of language or want of
fairness or mode ration on the part of the prosecutor.

NOTES

1. The prosecutor is an officer whose duty it is to see that justice is done, not a partisan intent
on securing a conviction independently of the justice of the case. He should; therefore, put before
the court facts which show the true character of the offence, and must be careful to prove
affirmatively any facts tending to show the innocence of the accused or extenuate his offence,
e.g., he should himself produce any available evidence of provocation which might mitigate
punishment.

2. It occasionally happens that a Sailor charged with desertion was to the knowledge of the
prosecutor, arrested or rendered an involuntary absentee at a date earlier than the termination of
his absence as alleged in the particulars of the charge. In such circumstances it is the duty of the
prosecutor, to tell the court all the information which he possesses and to invite them to act upon
such information by recording a special finding under rule 155 (4).
 3. The prosecutor must not introduce matters of aggravation into the evidence against the
accused unless they are re1evant to the charge against him.

4. He should be careful in his address to the court, not to mislead them either as to the law of
the facts of the case. See also note 3 to rule 151 above.

173. Latitude to the accused in making his defence-The court

shall allow great latitude to the accused in making his defence; but the accused must abstain from
any remarks contemptuous or disrespectful towards the court, and from coarse and insulting
language towards others, but he may for the purposes of his defence impeach the evidence and
motives of the witnesses and prosecutor, and charge other persons with blame and even crimi-
nality, subject if he does so, to any liability which he may thereby incur The court may caution
the accused as to the irrelevance of his defence, but shall not, unless in special cases, stop his
defence solely the ground of irrelevance.

NOTE
The court should not-except under very special circumstances stop the accused in his defence
or exclude, on the ground of irrelevancy, evidence offered by him or recommend any further
proceedings against him on account of his defence, See also note 2 to rule 151.

174. Procedure on trial of accused persons together.- Where two or more accused persons
are tried together and any evidence is tendered by any one or more of them, the evidence and
addresses on the part of or on behalf of all the accused persons shall be taken before the
prosecutor replies, and the prosecutor shall make one address only in reply as regards all the
accused persons.

NOTE
This rule should be read with rules 151 and 152. The effect of this rule is that if no evidence as
to the facts of the case is called for the defence of two or more persons jointly charged and tried
the prosecutor's final address will precede that of the counsel for the accused or the defending
officer. If 'however' anyone of the accused calls witnesses as to the facts the prosecutor will have
a right of reply on the whole case.

175. Separate charge-sheets.-(1) The convening officer may direct any charges against an
accused person to be inserted in different charge-sheets, and where he so directs, the accused
shall be arraigned, and until after the finding tried, upon each charge-sheet separately, and
accordingly the procedure in rules 141 to 155 both inclusive, shall until after the finding, be
followed in respect of each charge-sheet, as if it contained the whole of the charges against the
accused.
(2) The trials upon several charge-sheets shall be in such order as the convening officer directs.
(3) When the court have tried the accused upon all the charge-sheets they shall, in the case of
the finding being "Not Guilty" on all the charges, proceed as directed by rule 156 and, in case of
the finding on anyone or more of the charges being "Guilty", proceed so directed by rules 147
and 157 to 160 both inclusive, in like manner in each case as if all the charges in the different
charge-sheets had been contained in one charge-sheet, and the sentence passed shall be of the
same effect as if all the charges had been contained in one charge-sheet.
(4) If the convening officer directs that, in the event of the conviction of an accused person upon
a charge in any charge-sheet, the court in such an event may, without trying the accused upon any
of the subsequent charge-sheets, proceed as directed by sub-rule(3).

(5) Where a charge-sheet contains more than one charge, the accused may, before pleading,
claim to be tried separately in respect of any charge or charges in that charge-sheet, on the ground
that he will be embarrassed in his defence if he is not so tried separately; and in such a case the
court, unless they think his claim unreasonable, shall arraign and try the accused in like manner as
if the convening officer had inserted, the said charge or charges in different charge-sheets.

(6) If the accused pleads "Guilty" to a charge in a charge sheet, and the trial does not proceed
under sub-rule (1) of rule 147 with respect to the other charges in that charge-sheet, the court
shall, subject to the directions of the convening officer, proceed to try the accused on the charges
in the next charge sheet before they proceed as directed by sub-rules (2) and (3) of rule 147.

NOTES

1. Sub-rule (1)

(i) Most of the ordinary cases which come before court-martial are so simple in their facts that
an accused person is not likely to be embarrassed by being tried upon several charges at the same
time. But if the charges are complicated, or if the alleged offences were committed at different
times, or if different sets of witnesses are required to prove the different charges, if the convening
officer considers that embarrassment is likely to arise, he should cause the charges to be inserted
in separate charge-sheets, numbered consecutively in the order in which he directs them to be
tried.

It is difficult to lay down for the guidance of convening officer any definite rules as to the
placing of the charges in different charge-sheets; much will depend upon the circumstances of
each particular case. But the following general principles may be laid down :-

(a) Alternative charges must not be placed in different charge - sheets,

(b) A series of charges forming part of one escapade should be placed in a single
charge-sheet, such as absence followed by resistance of an escort and wilful damage to a cell
after committal to confinement. Multiplicity of charges arising out of the same
transaction should, however; be avoided, though in some cases it is necessary to allege a
series of offence, e.g., to prove some particular intent ,or to guide the court in
determining the proper punishment to be awarded.

(c) Offences of a similar nature such as a series of barrack room thefts or falsification
of accounts should be inserted in one charge-sheet.
(d) Offences of entirely different descriptions should be entered in separate charge-sheets
except where they form part of or are relevant to one transaction, or where the facts of
each case are simple.
(e) Where the offence is murder, no other offence should be included in the charge-sheet and,
generally, the same rule applies to culpable homicide not amounting to murder. Even if the
convening officer has directed all charges to be inserted in a single charge-sheet, the accused
under sub-rule (5) of this rule has the right to apply for separate trial.
(ii) Where the accused is arraigned on separate charge-sheets, the court must arrive at
their finding upon one charge-sheet before the next charge-sheet is proceeded with.
(iii) Where any evidence given upon the trial of an accused on one charge-sheet is
required to be given on the trial of the same accused person on a subsequent,
charge-sheet, it must be given afresh, but the witness giving such evidence
need not be sworn or affirmed again.

2. Sub-rule (2).-Generally speaking the convening officer will regulate the order for the trial of
different charge-sheets according to the date of the respective offences. But where the gravity of
the various offences differs it may be desirable to insert the charge involving the gravest offence
in the first charge-sheet, as, If the accused is convicted, he will be sufficiently punished without
trying him in respect of the minor offences, see sub-rule (4) of this rule. Occasionally it will be
desirable to direct that a charge 'which necessitates the calling or a large number of witnesses
should be inserted in the first charge-sheet, so that the attendance of such witnesses can be
dispensed with after the trial on that charge-sheet has been completed.
3. Sub-rule (3).-After the finding of the court upon all the charge-sheets has been arrived at,
the procedure will be same as if all the charges had been i1iserted in one charge-sheet. Unless,
therefore, the convening officer directs that the accused, need not be tried upon any subsequent
charge-sheet, the court will not proceed on sentence until they have arrived at a finding on all the
charge-sheets, and will then award one sentence in respect of them all.

4. Sub-rule (4).-It will often be unnecessary, if the accused is convicted of a grave charge
contained in one charge-sheet, to proceed with any other or minor offences contained in the other
charge-sheets. On the other hand, it may be desirable to try the accused upon the other charge-
sheets in order that a more severe sentence may, be awarded, if justified.

The powers given to the convening officer under this sub-rule cannot be exercised by the
prosecutor on his own initiative or by the court.

5. Sub-rule (5).-The court is to take into consideration the grounds of the accused to be tried
separately and unless they think the claim to be unreasonable, accede to such a demand to be tried
separately in respect of any particular charge.
 6. Sub-rule (6).-Under this sub-rule, where an accused has pleaded guilty to a charge entered
in one of several charge-sheets, the summary of evidence relating thereto and any statement
which he may make in. mitigation of punishment will not be read or recorded until after the
finding of the court on all the charge-sheets has been arrived at. But for this provision, the fair
trial of the accused upon the other charge-sheets might be prejudiced, especially if he stated, In
mitigation of punishment, anything which might point to his guilt on any charge in a charge-sheet
which has not yet been tried.

176. Sitting in dosed court.-(1) A court-martial shall where it is so directed by these ,rules,
and may in any other case on any deliberation amongst its members, sit in closed court.

Provided that when a court-martial is closed to deliberate on their finding on any charge, the
judge-advocate shall not be present.

(2) Where a court-martial sits in closed court, no person shall be present except the members of
the court, the judge-advocate, if any, subject to the proviso to sub-rule (1) and any officers under
instruction.

(3) For the purpose of giving effect the foregoing provision of this rule, the court-martial may
either retire or may cause the place where they sit to be cleared of all other person not entitled to
be present, as may appear expedient having regard to the persons to be present in closed court and
other circumstances.

(4) Except as above mentioned, all the proceedings, including the view of any place, shall be
in open court and in the presence of the accused.

NOTES

1. Sub-rule (1)

(i) The judge-advocate is excluded from the deliberations of the court only when they
are deliberating on their finding on any charge, i.e., on their verdict. He is not excluded when
they are deliberating in closed court on any other matter, e.g., on the admissibility of a
confession, on the submission of the defence that there is no prima facie case at the close of
the case for the prosecution, or on the sentence.

(ii) When there is a judge-advocate and the court is cleared for finding, the judge-advocate
including any officer under instruction as judge-advocate shall retire. When the court has
 arrived at their finding, the president will reopen the court, and the judge-advocate will
return to the court.

2. Sub-rule (4)

(i) All the members of the court and the judge-advocate (if any) must be present at the
"view" as well as, the prosecutor; the accused and his counselor defending officer.

(ii) All the proceedings of a court shall be in open court but it does not affect the inherent
power of the court to sit in camera, if necessary, for the proper administration of justice.

(iii) It is for the court-martial to decide whether to sit in camera or not, though the
convening officer may properly draw the court's attention to its powers. This power .is
invoked when publicity would endanger public safety or the life of a witness. A court
would also be justified in hearing evidence in camera when a witness could not, by reason of
its distressing nature, give evidence properly in public.

(iv) When a court decides to sit in camera, the court shall be cleared of all the spectators,
except those permitted by the court.

177. Time for trial,-(l) A court-martial may sit at such times and for such periods between
the hours of six a.m. six p.m. as may be directed by the proper naval authority and so far as no
such direction extends as the court from time to time determine, provided that a court-martial
shall not ordinarily sit for more than six or at the most eight hours during one day.

(2) If the court consider necessary to continue a trial after six p.m. they may do so, but if they do
so should record in the proceedings their reason for so doing.

(3) If the court or the convening officer, or other superior naval authority, think that the
exigencies of the service or the interests of discipline require the court to sit on Friday or other
closed holiday the court may sit accordingly, but otherwise the court shall not sit on any of those
days.

NOTE
Prolonged sittings unduly strain the attention of members of the court and may operate unfairly
upon the accused, who should never be required to make his defence at the close of a prolonged
sitting. Sittings of six hours will be found as a rule quite long enough.
 178. Continuity of trial and adjournment of court.-(l) When a court is once assembled and
the accused has been arraigned the court shall continue the trial from day to day and sit for a
reasonable period on every day, unless lit appears to the court that an adjournment is necessary
for the ends of justice, or that such continuance is impracticable.

(2) A court may adjourn from time to time, and from place to place and may, when
necessary, view any place.

(3) If the time to which an adjournment is made is not specified the. adjournment shall be
until further orders from the proper naval authority, and if the place to which an adjournment is
made is not specified the adjournment shall be to the same place as may be specified in further
orders from the proper naval authority,

(4) A court-martial in the absence of a judge-advocate, if one has been appointed for the
court-martial, shall not proceed, and if necessary, shall adjourn.

(5) The senior officer at the place at which the court is sitting may also for exigencies of the
service, adjourn or the adjournment of the court.

NOTES

1. It is very important that a trial, once begun, should proceed without interruption to its
conclusion. This rule, therefore, requires the court to sit from day to day unless an adjournment is
necessary for the ends of justice.

2. Apart from the specific provisions under the rules, it is advisable to allow an adjournment
only on the following occasions:-

(a) for enabling the accused to prepare his defence;

(b) for the prosecutor to prepare his reply; or
(c) for the judge-advocate to prepare his summing up.

3. The court should not, as a rule, permit an adjournment to enable the prosecutor to call new
witnesses, unless the necessity for their presence at the trial could not reasonably have been'
foreseen. The court should adjourn if they consider that the accused has not had sufficient
opportunity for procuring the attendance of any witnesses whom he desires to call, or where it
would be unjust to the accused not so to adjourn.

4. The reasons for any adjournment must be entered in the proceedings, and either announced
in court in the presence of the accused, or communicated to the prosecutor and the accused.

5. Civilian witnesses, on completion of their evidence, may be exempted by the court from
being in attendance, until such time as they may be required again.

6. Sub-rule (2) meets the case where for example a view is necessary or where adjournment to
a hospital for purpose of taking evidence of a sick witness is rendered necessary.

179. Suspension of trial.-(l) When in consequence of anything arising while the court is
sitting, the court is unable by reason of dissolution under section 101 or otherwise, to continue the
trial, the president, or in his absence the senior member present, shall immediately report the facts
to the convening authority.

(2) Where a court-martial is dissolved before the finding, or, in case of a finding of "Guilty",
before the sentence, the proceeding shall be null and void and the accused may be tried before
another court-martial.

NOTES

1. A court-martial shall be considered to have been dissolved under section 101 :'-

(a) if the president or the judge-advocate dies or

(b) if by the death of a member, it is reduced below the legal minimum.

2. If it is not possible to continue with the trial due to prolonged absence of the president, the
judge-advocate or a member thereby reducing it below the legal minimum, the facts shall be
referred to the convening authority.
 3. Though there is no promulgation of a decision to try the accused again he should be
informed of the decision before being arraigned before a new court.

180. Proceeding on death or illness of the accused.-In case of the death of the accused or of
such illness of the accused as renders it impossible to evidence, and record the same and adjourn
and, transmit the proceedings to the convening authority.

NOTE

"Impossible to continue" means to continue within a reasonable time having regard to all the
circumstances. Oral evidence of the fact of the death or illness must be taken on oath or
affirmation. Also a medical certificate should always where possible be obtained, stating that the
illness of the accused renders his presence in court impracticable, or dangerous to himself or
others, and also the time when, in the opinion of the medical officer, the accused will be able to
be present. .

181. -Appointment or addition 6f new members -A new member shall not be appointed or
added to a court-martial after the accused has been arraigned.

NOTE
As to It member being absent, see section 101 (3).

182. Taking of opinions of court-(l) Except as provided in sub-rule(2) of rule 154 every
member of a court-martial must give his opinion by word of mouth on every matter which the
court has to decide, including the sentence, notwithstanding that he may have given his opinion in
favour of acquittal.

(2) Subject to the provisions of the Ordinance every question sha1l be determined by .an
absolute majority of the opinion the members of the court, and in the case of an equality of
opinion the president's second or casting vote shall be reckoned as determining the majority.
(3) The opinions of the members of the court shall be taken in succession, beginning with the
junior in rank.

NOTES

1. Rule 154 (2) provides that the opinion of members, if the president so directs, may; in the
case of finding alone, be given by secret written ballot; otherwise opinions must always he given
orally. Section III of the Ordinance requires all decisions to be passed by a absolute majority,
except in the case of a sentence of death which requires a two-thirds majority in the case of a
G.C.M. and unanimity of all members in the case of a S.G.C.M. The president has no second or
casting vote in the case of a sentence of death, nor where there is an equality of votes on a
challenge (under section 109) or finding or sentence; in such cases the decision shall be taken to
be in favour of the accused, see section III.

2. In order to obtain an absolute majority in respect of the sentence, every member must note,
even if he had voted for an acquittal on the finding. It is desirable that the nature of the
punishment to be awarded should first be considered. The procedure to be adopted will best be
illustrated by the following example:-
At a general court-martial, for the trial of an officer, consisting of seven members, three are
in favour of a sentence of imprisonment, two in favour of dismissal from the service, and two in
favour of forfeiture of seniority in rank.

The most lenient punishment will be first put to the vote and will be rejected by 5 votes to 2.
The next most lenient-punishment will then put to the vote, viz. dismissal. All seven members
must vote again and the two members who had previously voted for forfeiture of seniority hi rank
will naturally give their votes in favour of dismissal rather than imprisonment. The result will be
an absolute majority of 4 votes to 3 in favour of dismissal.

Similarly, where the majority have voted in favour of imprisonment, the quantum or the length
of the imprisonment to be awarded should be arrived at in the same manner, the most lenient
proposal being put to the vote first.

It is improper to strike an average between the various sentences suggested by the members of
the court, but it may often happen that in the course of further discussion, members who had or
originally made different proposals will arrive at a unanimous decision as to the proper sentence
to be awarded.

3. Sub-rule (3). The opinion of each member on the finding must be taken separately upon
each charge upon which the accused is arraigned see rule 154 (2). “Junior in rank means junior in
the substantive rank see rule 170.

183. Procedure on incidental questions.-If any objection on any matter of law evidence or
procedure is arised by the prosecutor, or by or on behalf of the accused during the trial; the pro-
secutor or the accused or counselor the defending officer (as the case may be) shall have a right to
answer the same and the person raising the objection shall have the right to reply.

NOTE

This rule will apply to such questions as the admissibility of evidence the propriety of any
question or the recalling of a witness. It will also apply to a submission of “no case" if one is
made at the close of the prosecution case under rule 150 (2).
 184. Swearing of court to try several accused persons.-(l) A court, may be sworn or
affirmed at one time to try number of accused persons then present before it, whether those
persons are to be tried together or separately, and each accused person shall power to object to the
members of the court, and shall be asked separately whether he objects to any member.

(2) In the case of several accused persons to be tri::d separately the court, upon one of those
persons objecting to a member may according as they think fit, proceed to determine that
objection or postpone the case of that person and swear or affirm the member of the court for the
trial of the others alone.

(3) In the case of several accused persons to be tried separately the court when sworn or
affirmed, shall proceed with one case, postponing the other case, and taking them afterwards in
succession.

(4) When several accused persons are tried separately by the same court upon charges arising
out of the same transaction, the court may, if they consider it to be desirable in the interest of
justice, postpone consideration of any sentence to be awarded to any one or more of such accused
persons until the trials of all such accused persons have been completed.

NOTES

1. Sub-rule (1)-(i) Notwithstanding that under this rule the members of the court are sworn
only once to try the person before them there will be a separate court for the trial of each case,
and the swearing of the court will be mentioned in the proceedings of each case.

(ii) When, in consequence of an objection raised by one of several persons jointly charged, a
new officer serves, the other accused persons, who had previously raised no objection to the
members of the court, will have the right to object to the new officer.

2. Sub-rule (2).-Where 2 or more accused persons are tried separately by the same court and
the objection of one accused to a member is allowed that officer shall not sit as a member of the
court for the trial of any of the several accused persons brought before it, because the same court
must try all of them so as to ensure that the provisions of sub-rule (4) are followed.

3. Sub-rule (3).-The finding and sentence except where the court decides to act under sub-rule
(4) of this rule must be arrived at before the next case is fried.
4. Sub-rule (4).-It is very desirable that the court should, where several persons are separately
tried and convicted in respect of the same transaction, be in a position to apportion the proper
sentences to be awarded to all the accused persons.
 185. Swearing of interpreter and short hand writer.-(1) At any time during the trial an
impartial person may, if the court think , it necessary, and shall, if either the prosecutor or the
accused requests it on any reasonable ground be sworn or affirmed to act as interpreter.

(2) An impartial person may at any time of the trial, if the court think it desirable, be sworn or
affirmed to act as a shorthand writer.

(3) Before a person is sworn or affirmed as interpreter or shorthand writer, the accused shall
be informed of the person who is proposed to be sworn or affirmed, and may object to the person
as not being impartial; and the court, if they think that the objection is reasonable, shall not swear
or affirm that person as interperter or shorthand writer.

NOTES

1. Sub-rule (1)

(i) An interpreter or shorthand writer is usually sworn at the commencement of the trial.

(ii) For the occasions when an interpreter must be employed see rule 186 and note.

An interpreter may either be appointed by the convening officer rule 131 (3) or by the court
under this rule. If a member of the court is appointed interpreter he must take the interpreter's
oath (or affirmation) in addition to the oath prescribed for a member of the court under rule 139.
A member should not normally act as an interpreter where the trial is likely to be prolonged.

(iii) For form of oath or affirmation see Fourth Appendix to the rules.

2. Sub-rule (3).-The same procedure will be followed as in the case of an objection to a member
of the court.
 3. On completion of the administration of oath to all concerned the court and the judge-
advocate shall remove their caps and thereafter they will remain uncovered.

186. -Evidence when to be translated.-When any evidence is given in a language which any
of the officers composing the court the judge-advocate the prosecutor or the accused does not
understand the evidence shall be interpreted to such officer or person in a language which he does
understand. If an interpreter in such language has been appointed by the convening officer, and
duly sworn or affirmed, the evidence shall be interpreted by him. If no such interpreter has been
appointed and sworn or affirmed, an impartial person shall be sworn or affirmed by the court as
required by rule185. When documents are put in for the, purpose of formal proof it shall be in the
discretion of the court to cause as much to be interpreted as appears necessary.

NOTE

As the charge-sheet and documentary evidence as to character will be in English, an interpreter

in the language of the accused person should be appointed in every case in which the accused
does not know enough English to understand these documents. Whoever interprets any evidence
must be sworn or affirmed as an interpreter before doing so; (see rule 185 and notes).

Proceedings

187. Record in proceedings of transactions of court-martial. At a court-martial the judge-

advocate, or, if there is none, the president, shall record, or cause to be recorded, in the English
language, an transactions of that court, and shall be responsible for the accuracy of the record (in
these rules referred to as the proceedings); and if the judge-advocate is called as a witness by the
accused, the president shall be responsible for the accuracy of the record in the proceedings of the
evidence of the judge-advocate.

NOTES

1. The record, where no shorthand writer is employed must be taken in a clear and legible hand
or type. Interlineations and corrections must be avoided, as much as possible; if made they should
be initialled by the president for (or judge-advocate). If desired, a typed copy may be substituted
for the original manuscript record if so substituted it must be checked with the original by the
officer responsible for the accuracy of the proceedings. The pages should be numbered and the
various sheets fastened together. Sufficient space must be left below the signature of the president
for the decision of the confirming authority. The place and date of the signing of the sentence by
the president must be inserted.
 2. No correction or addition may be made to the proceedings of a court-martial after
promulgation. When an obvious oversight has been made in the record such as the omission of
the words "the president and members arc duly "sworn" a certificate, signed by the president, to
the effect that they were sworn should be attached.

188. Taking down of evidence and addresses.-(l) The evidence shall be taken down in a
narrative form in as nearly as possible the words used; but in any case where the prosecutor, the
accused person, the judge-advocate, or the court considers it material, the question and answer
shall be taken down verbatim.

(2) Where an objection has been taken to any question or to the admission of any evidence or
to the procedure of the court, such objection shall, if the prosecutor or accused so requests, or the
court think fit, be entered in the proceedings together with the ground of the objection, and the
decision of the court thereon.

(3) Where any address by, or on behalf of the prosecutor or the

accused is not in writing, it shall not be necessary to record the addresses in the proceedings
further or otherwise than the court think proper, except that.

(a) the court shall in every case make such record of the defence made by the accused as
will enable the confirming officer to judge the reply made by or on behalf of the accused
to each charge against him; and

(b) that court shall also record any particular matters in the address by or on behalf of, the
prosecutor or the accused, which the prosecutor or the accused, as the case may be,
requires.

NOTES
1. The material effect of the question and answer will be written down e.g., where the question
is "What did the accused do next ?" and the answer is "He left the room"; the evidence, as
recorded, would read". The accused then left the room".

2. Documentary evidence, on being admitted; shall be marked with a distinguishing letter or

figure and attached to the proceedings. In many cases it will be sufficient to attach copies of
documents which must, however, be compared with the originals by the court and certified under
the hand of the president or one of the members to be true copies, see note 2 to rule 160.

3. Even if a shorthand writer is employed the evidence shall be taken down in narrative form.
 The rule applies to questions and answers given in cross examination and re-examination as well
as the examination-in-chief.

189. Procedure where court wishes to comment or report on any matter not forming
part of trial. -The court shall not enter in the proceedings any comment or anything not before
the court, or any report of any fact not forming part of the trial; but if any such comment or report
seems to the court necessary the court may forward it to the proper naval authority in a separate
document, signed by the president.

NOTE

The court can make in a separate document any remarks they think proper on the conduct of
any person who appeared before them, or on the manner in which the prosecution has been
conducted.

The court must be very careful in commenting upon the individuals not before them for trial;
indeed, cases justifying such expression will be rare and exceptional.

It will usually be desirable to make a note at the time of any matter upon which the court
intend to make any such comment or report although it will not be correct to enter such matter in
the proceedings.

190. Custody and inspection of proceedings.-During the trial the proceedings shall be
deemed to be in the custody of the judge advocate, if any, or, if there is none, of the president, but
may, with proper precaution for their safety, be inspected by the members of the court, the
prosecutor and accused, respectively, at any reasonable time before the court is closed to consider
the finding.

191. Transmission of proceedings after finding and sentence. The proceedings shall be at
once sent by the person having the custody thereof to such person as may be directed by the order
convening the court, or in default of any such direction, to the confirming officer,
 NOTES
1. As to the custody of the proceedings during the trial, see rule 190.
2. For procedure when a member of the court has become confirming officer, See rule 167.
3. The proceedings of court-martial, when despatched by post, shall invariably be sent under
registered cover.

192. Preservation of proceedings.- The proceedings of a court- martial shall be preserved in

the department of the Judge-Advocate General for not less then, in the case of a general court-
martial, seven years, and in the case of any other court-martial, three years.

193. Right of person tried to copies of proceedings.-Every person tried by a court-martial

shall be entitled free of charge at any time after the confirmation of the finding and sentence, and
before the proceedings are destroyed, to obtain a copy there of, including the proceedings upon
revision, if any.

194. Loss of proceedings.-(l) If, before confirmation, the original proceedings of a court-
martial, or any part thereof, are lost, a copy thereof, if any, certified by the president or the judge-
advocate may be accepted in lieu of the original.

(2) If there is no such copy, and sufficient, evidence of the charge, finding, sentence; and
transactions of the court can be procured, that evidence may, with the assent of the accused, be
accepted in lieu for the original proceedings, or part thereof lost.

(3) In any case failing under, sub-rule (1) or (2) the finding and sentence may be confirmed and
shall be as valid as if the original proceedings, or part thereof, had not been lost.

(4) If the accused refuses his assent as required by sub-rule (2) he may be tried again, and the
finding and sentence of the previous court of which the proceedings have been lost shall be nun.

(5) If, after confirmation, the original proceedings of a court, martial, or any part therefore are
lost, and there is sufficient evidence of the charge, finding and sentence, and confirmation of the
finding and sentence, that evidence shall be valid and sufficient record of the trial for all purpose.
 NOTES

1. Sub-rule (1). -Confirmation is not complete until the finding and sentence have been
promulgated, see rule 168.

As to annexure to the proceedings of original documents, see note 2 to rule 160.

2. Sub-rule (2).-The evidence may be obtained by the president or some other member of the
court writing out from memory the substance of the charge, finding, sentence and transactions of
the court, which should be authenticated by the signatures of the members. A copy of the charge,
however, should always be procured, if possible.

As soon as it is known that the proceedings have been lost, steps should be taken to obtain
and preserve the best evidence available.

Defending officer, friend of the accused, and counsel

195. Defending officer and friend of accused.-(1) If an accused person is not represented at
his trial by counsel, he may be represented by any officer subject to the Ordinance who shall be
called "the defending officer" or assisted by any person whose services he may be able to procure
and who shall be called "the friend of the accused"

(2) It shall be the duty of the convening officer to ascertain whether an accused person not
otherwise represented desires to have a defending officer assigned to represent him at his trial,
and, if he does so desire, the convening officer shall use as his best endeavours to ensure that the
accused shall be so represented by a suitable officer; if, owing to exigencies of the service, or for
any other reason, there shall, in the opinion of the convening officer, be no such officer available
for the purpose, the convening officer shall give a written notice to the president of the court-
martial, and such notice shall be attached to the proceedings.
(3) The defending officer shall have the same rights and duties as appertained to counsel
under these, rules and shall be under the like obligations.
(4) The friend of the accused may advise the accused on all points and suggest the questions
to be put to the witnesses but he cannot examine or cross-examine the witnesses and address the
court.

NOTES

1. Sub-rule (1) - Under rule J28 (I) the accused, after he has been ordered to be tried by court-
martial, is to be allowed free communication with his "friend"', defending officer or legal adviser.
This rule would suggest that an accused cannot have both counsel and a defending officer; in
practice, however, it will be better to ensure that an officer is detailed to act as his "friend" when
counsel is employed to render assistance in preparing the defence and to supply the local
background. The officer so detailed will not have any right of audience. see sub-rule (4).

2. Sub-rule (2).-Every effort should be made to secure the services of a competent officer, and
he should be allowed time and opportunity for properly preparing the defence of the accused.
Where an accused selects a particular officer steps should be taken to obtain his services. Such
officer should be made available if this is possible, unless he is unavoidably required for some
other essential naval duties. Where two or more accused are charged jointly, care must be taken
to see that they are separately represented if it is likely that their defences will conflict.

3. Sub-rule (3).-The defending officer must conduct the case as representing the accused,
See rules 197, 199 and 200.

196. Counsel allowed in certain court-martial-(I) Subject to these rules, and save as
provided in sub-rule (2), counsel shall be allowed to appear on behalf of the prosecutor and
accused at general and districts court-martial.

(2) The Chief of Naval Staff or the convening authority may, if he considers expedient,
disallow the appearance of a counsel at a particular general or district court-martial all general
and district courts-martial held in any particular area.

(3) Save as provide4 in sub-rule (2), the rules with respect to counsel shall apply to the court-
martial at which counsel are, under this rule, allowed to appear.

NOTES

1. Sub-rule (2).-The power conferred by this sub-rule is normally to be exercised in

exceptional circumstances and may not be necessary except on active service.

As to the qualifications of a counsel, see rule 201 (2).

2. There is no restriction as to the number of counsel engaged in a case. Where more than one
counsel appears on behalf of the accused, (or on behalf of the prosecution) it is a matter within
the discretion of the court whom they allow to address them and to examine witnesses. As a rule
when two counsel appear both are given audience, any right of address given by these rules may
be exercised by either but not both of them and any witness may be examined or cross-examined,
as the case may be, .by either but not both of them.
 Members of the bar should wear robes when appearing before court-martial.

3. Counsel for defence, though not bound to such strict impartiality as the prosecutor, must
nevertheless recollect that he is assisting in the administration of justice and must not be guilty of
any unfairness or want of candour in his conduct of the case. In his address he will have the same
liberty as the accused (see rule113), but he should exercise more restraint in commenting on the
acts of persons not before the court, See Rule 199.

197.Requirements for appearance of counsel-(1) An accused person intending to be

represented by counsel shall give to his commanding officer the earliest practicable notice of such
intention and, if no sufficient notice has been given, be court may, if it thinks fit, on the
application of .the prosecutor, adjourn to enable him to obtain counsel on behalf of the prosecutor
at the trial.

(2) If the convening officer so directs, counsel may appear on behalf of the prosecutor, but in
that case, unless the notice mentioned in sub-rule (1) has been given by the accused, notice of the
direction for counsel to appear shall be given to the accused at such time not in any case less than
seven days before the trial, as would, in the opinion of the court enable to accused to obtain
counsel to represent him at the trial.

(3) The counsel who appears before. a court-martial on behalf of the prosecutor accused, shall
have the same right as the prosecutor or accused for whom he appears, to call, and orally
examine, cross-examine, and re-examine witnesses, to make an objection or statement, to address
the court, to offer any plea; and to inspect the proceedings, and shall have the right otherwise to
act in the course of trial in the place of the person on whose behalf he appears, and he shall
comply with these rules as if he were that person; and in such a case that person shall not have the
right himself to do any of the above matters except as regards the statement allowed by clause (a)
of rule151and clause (a) of rule 152 of except so far as the court permit him so to do.

(4) When counsel appears on behalf of the prosecutor, the prosecutor, if called as a witness,
may be examined, cross-examined and re-examined as any other witness.

NOTES

When the convening officer intends to appoint or apply for the service so an officer of Judge-
Advocate General's Department of an officer holding a legal qualifications to act as prosecutor,
similar notice should be given to the accused, to enable him, if he so desires, to obtain counsel to
represent him at the trial.

198. Counsel for prosecutor.- (1) Counsel appearing on behalf of the prosecution shall
always make an opening address and shall state therein the substance of the charge against the
accused, and the nature and general effect of the evidence which he proposes to adduce in support
of it without entering into unnecessary detail.

(2) Counsel appearing on behalf of the prosecution shall have the same duty as the
prosecutor, and is subject to be stopped and restrained by the court in the manner provided by
sub-rule (2) of rule 172.

199. Counsel of accused.-(1) Counsel appearing on behalf of the accused has the like rights
and is under the like obligation as are specified in rule 173 in the case of the accused.
(2) If the court ask counsel for the accused a question as to any witness or matter, he may
decline to answer, but he must not give to the court any answer or information which is
misleading.

NOTE

See note (3) to rule 196.

200. General rules as to counsel.-(l) Counsel whether appearing

on behalf of the prosecution or of the accused, shall confirm strictly to these rules and, subject to
these rules, to criminal court relating to the examination cross-examination, and re-examination
of witnesses and relating to the duties of counsel.
(2) Counsel shall treat the court and judge-advocate with due respect, and shall, while
conducting his case bear in mind the requirements of naval discipline in the respectful treatment
of any superior of the accused who may attend as a witness.

NOTE

Counsel should not state as a fact any matter which is not proved, or which he does not intend to
prove in evidence, nor should "he state what is his own opinion as to any matter of fact before the
court. In a question to a witness be should not assume that facts have been given in evidence
which have not been so given, or that particular answers have been given contrary to the fact.
201. Qualifications of counsel.- (l) Neither the prosecution nor
the accused has any right to object to any counsel if properly qualified.
(2) Counsel shall be deemed properly qualified to appear at a
court-martial wherever held:-
(i) if in Bangladesh, he is a legal practitioner, authorized under any law for the time being in
force to practice with right of audience in a Court of Sessions.

(ii) if in any other country, he is recognised by the convening officer as having in that
part of the country, rights and duties

similar to those of an advocate in Bangladesh. and as being subject to punishment or

disability for a breach of professional rules.

NOTES

1. A civilian gazetted officer holding legal qualifications cannot appear as a Counsel since be is
not actually practicing.

2. Similarly serving Army or an Air Force Officer who is a Bar-at-Law or an Advocate cannot
appear as a counsel because he is not actually practicing but has suspended his practice because
of his Service.

Judge -Advocate
202. Appoint of Judge-Advocate and disqualification.-(l) For the purpose of-section 100 a
person shall be deemed fit to act as judge advocate if in the opinion of the judge-Advocate
General he possesses necessary qualifications to act in. that capacity.

(2) An officer who is disqualified for serving on a court-martial shall be disqualified for
acting as judge-advocate at that court-martial.

NOTES

1. As to the appointment of a judge-advocate at a court-martial see section 100. Omission to

appoint a judge-advocate at a general court-martial will in validate the proceedings.

2. As to disqualification, see rule 133 (2) and notes.

 3. A judge-advocate should be free of all suspicion of bias or prejudice. He should have had
experience of the practice and procedure of court-martial and knowledge of the general principles
of law and of the rules of evidence.

203. Powers and duties of Judge-Advocate.-(1) The prosecutor and the accused shall at all
times, after the judge:-advocate is named to act on the court, be entitled to his opinion on any
question of law or procedure relative to the charge or trial, whether he is or out of court, subject,
when he is in court, to the permission of the court.

(2) At a court-martial he shall represent the 1udge-Advocate General;

(3) He shall be responsible for informing the court of any informality or irregularity in the
proceedings. Whether consulted or not he shall inform the convening officer and the court, of any
informality or defect the charge, or in the constitution of the court and shall give his advice on
any matter before the court.

(4) Any information or advice gives to the court on any matter

before the court shall, if he or desire, be entered in the proceedings.

(5) At the conclusion of the case he shall sum up the evidence and advise the court upon the law
relating to case, before the court proceed to deliberate upon their finding.

(6) Upon any point of law of procedure which arises during the trial which the judge-advocate
attends, the court shall be guided by his opinion, and shall not disregard it, except for very
weighty reasons. The court shall be responsible for the legality of their decision. But they shall
always consider the consequences which may result from their disregard of the advice of the
judge-advocate on a legal point. The court, in following the opinion of the judge advocate on a
legal point, may record that they have decided in consequence of that opinion.

(7) The judge-advocate shall have equally with the president, the duty of taking care that the
accused does not suffer any disadvantage in consequence of his position as such or of his
ignorance or in capacity to examine or cross-examine witnesses or to make his own statement
clear or intelligible or otherwise, and may, for that purpose, advise the court that witnesses should
be called or recalled for the purpose of being questioned by him on any matters which appear to
be necessary or desirable for the purpose of eliciting the truth.

(8) In fulfilling his duties the judge-advocate shall be careful to maintain absolute
impartiality.

NOTES
1. Sub-rule (5).-See rule 153 and notes.
2. Sub-rule (7).-For duty of president, see rule 17.1 (2), and notes. The advice to call or recall
witnesses should always be acted upon unless the court considers that the judge-advocate is
acting improperly or in such a manner as to obstruct the proceedings. If his advice is disregarded,
the court should record their reasons for disregarding it.

Witnesses and Evidence

204. Evidence to be according to rules in criminal courts. –A Court-martial shall not
receive evidence for the prosecution which is relevant not to the facts stated in the statement of
particulars in the charge, or any evidence which is not admissible either under the Evidence Act
1872 (I of 1872), or under the Ordinance, or under any other law.

NOTE

See section 114 and notes for general rules as to evidence. Admission of evidence which is not
relevant to the charge or is otherwise legally, inadmissible may seriously prejudice the accused
and may vitiate the proceedings.

205. Calling of all prosecutor witnesses. - The prosecutor is not bound to call the witnesses
whose evidence is in the summary of evidence or whom the accused has been informed it is
intended to call, but should ordinarily call such of them as the accused desires to be called, in
order that he may, if he thinks fit, cross-examine them, and shall, for this reason, so far as
practicable, secure the attendance of such witnesses.

NOTES

1. As to giving the accused a copy of the summary of evidence, see rule 128(2)

2. It will be noted that the prosecutor is not required to call any witness at the court-martial who
was called by the accused at the summary trial as defence witness.
 3. It is not necessary for the prosecutor to examine at length all witnesses for the prosecution
whose summl1ry of evidence have been recorded, but, such witnesses, whom the prosecutor does
not wish to examine, may be called at the request of the accused and tendered for cross-
examination by the accused under this rule .

206. Calling of witnesses whose evidence is not contained in summary.-If the prosecutor
intends to call a witness whose evidence is not contained in any summary of evidence given to
the accused, notice of such intention such be given to the accused a reasonable time before the
witness is called, together with an abstract of his proposed evidence; and if the witness is called
without such notice or abstract having been given the court shall if the accused so desires, either
adjourn after taking the evidence of the witness, or allow the cross-examination of the witness to
be postponed, and the court shall inform the accused of his right to demand such an adjournment
or postponement.

NOTES
This rule applies only in the case of witnesses called for the prosecution and not in the case of
witnesses called by the accused or by the court under rule 215 (4).

207. List of witnesses of accused.-The accused shall not be required to give to the
prosecutor a list of the witnesses whom he intends to call, but it shall rest with the accused alone
to secure the attendance of any witness whose evidence is not contained in the summary, and for
whose attendance the accused has not requested steps to be taken as provided for by sub-rule (1)
of rule 129,

NOTES

A member of the court, the judge-advocate and prosecutor are competent witnesses for the
defence, and may be sworn at any stage of the proceedings, but an officer should not be detailed
to serve as a member of, or act as prosecutor or judge-advocate at a court-martial if his evidence
is likely to be required. A witness for the prosecution cannot serve a member of the court or act as
judge-advocate at the trial of the case in which he is a witness; see rules 133 (2) and 202(2)

208. Procuring attendance of witnesses-(l) The commanding officer of the accused; the
convening or a staff' officer on his behalf, or after the assembly of the court, the president, or
judge-advocate shall take proper steps to procure the attendance of the witnesses whom the
prosecutor or accused desires to call, and whose attendance can reasonably be procured; provided
that if any of the said authorities considers that any witness is being summoned for the purpose of
vexation or delay, or of defeating the ends of justice, such authority may either refuse to summon
such witness, recording reasons for such refusal, or direct the person requiring the attendance of
such witness to undertake to defray the cost, if any, of his attendance.
 (2) The summons to such witnesses shall be in the form provided in the Fourth Appendix to
these rules and shall be served on the witnesses in accordance with the procedure laid down in
section 116.

NOTES

1. The Summons to witnesses are to be signed and dated by the commanding officer in the
following form, as set out in the Fourth Appendix to the rules:-

In the case of a court-martial

To,

………. …………………………… (name and address) . . . . .. . . .. . . . .

WHEREAS a………....................court-martial has been ordered to assemble at. . . . . . .. . . . . . .

. . . . . . . . . on the. . . . . . . . . . . . day of

.. . .. .. . .. .. .. .. .. .. .. ..19. .. .. . .. ..at.. . .. . .. .. . .. . hrs for the trial of.

…………………………rightright.(number, rank, name, ship/establishment) …..

…………………….I do hereby summon and require you ...................

(name) to attend as a witness, the sitting of the said court atrightright,..................

(place), on thecentercenter. .. . .. . . . . . . .. .. .. day of. . .. .. .. .. . . . . . . ... . . . . .19

.atrightright …… hour's and to bring with you the document (s) (specified

on the reverse hereof), and so to attend from day to day until you shall

be duly discharged:

Where or you shall ran at your peril.

Given under my hand at ……………,this…………day of......... ………...19........

 Commanding Officer of the accused.

2. All reasonable steps should be taken to secure the attendance of my witness whom there is
any ground to suppose to be material to the defence and rule 209 makes provision for the
adjournment of the court if the attendance or such witness is essential.

3. The power to require the person calling a witness to undertake to defray the cost of his
attendance is given in order to prevent an unreasonable demand for the attendance of witnesses.
The absence of a material witness might afterwards be held to invalidate the proceedings of a
court-martial, even though, in the witness had been called, the court would probably have arrived
at the same decision in as much as it is impossible to tell what effect the evidence of such n
witness might have had upon the court

As to expenses of witnesses, see Passage Regulations, Rule 258.

4. If a civilian witness has in his possession or under his control any books, accounts, letters,
returns. papers or other documents which are considered necessary for the trial, care must be
taken to mention such documents in the summons directing him to bring them with him; the
witness would be justified in declining to acknowledge a mere oral request.

209. Procedure when essential witness is absent.-If such proper steps as are mentioned in
the proceeding rule have not been taken as to any witness, or if any witness whose attendance
could not reasonably be procured before the assembly of the court is essential to the Prosecution
or defence, the court shall-

(a) in the circumstances laid down in section 117 take steps to secure the issue of a
commission for the examination of such witness: or

(b) adjourn and report the circumstances to the convening officer.

NOTES

As to power of a court-martial to issue a commission for the examination of witness and the
considerations-which should guide the court in this matter, see section 117 and notes thereto.
 210. Withdrawal of witnesses from court.- During the trial a witness, other than the
prosecutor, shall not, except by special leave of the court, be permitted to be present in court
while not under examination, and if, while he is under examination, a discussion arises as to the
allowance of question or the sufficiency of his answers, or otherwise as to his evidence, he may
be directed to withdraw.

NOTES

1. It is customary to have all witnesses present in court white the members of the court are
being sworn, but they should withdraw before the arraignment. This does not, of course, apply to
the prosecutor if a witness.

Permission to remain in court while not under examination, may reasonably be given e.g., to
expert or professional witnesses; provided that no objection is made by or on behalf of the
accused;

2. If any such discussion arises as is mentioned in the rule, the court should generally order the
witness t9 withdraw, as his answer might be influenced by the discussion.

211. Swearing of witnesses. -An oath or affirmation shall be administered by the judge-
advocate, if any; or by the president or by a member of the court in the presence of the accused to
every witness before he gives his evidence, in the form and manner provided in the Fourth
Appendix to these rules, or in such other form or manner to the same purport as the court
ascertains to be according to the religion or otherwise binding on the conscience of the witness.

NOTE

As to the power of dealing with recalcitrant witnesses, see section 73 in the case of persons
subject to the Ordinance, and rule 223 in other cases.
 212. Mode of questioning witnesses.-(l) Every question shall be put to a witness orally by
the prosecutor or by or on behalf of the accused. or by the judge-advocate without the invention
of the court and the witness shall forth with reply, unless an objection is :made by the court,
judge-advocate, prosecutor, or by or on behalf of the accused, in which case he shall not reply
until the objection is disposed of the witness shall address his reply to the court.

(2) The evidence of a witness as taken down shall be read to him after he has given all his
evidence and before he leaves the court and shall, if necessary, be corrected.

(3) If the witness denies the correctness of any part of his evidence when the same is read
over to him, to court may, instead of correcting the evidence, record the objection made to it by
the witness,

(4) When a witness makes any correction to his statement the prosecutor, the accused or his
counselor defending officer may respectively examine his respecting the same.

(5) If the evidence is not given in English and the witness does not understand that language
the evidence as recorded shall be interpreted to him in the language in which it was given, or in a
language which he understands.

(6) Where evidence is recorded by a shorthand writer, is shall not be necessary to read the
evidence of the witness to' him under sub-rule (2), if in the opinion of the court and the judge-
advocate, if any (such opinion to be recorded in the proceedings) it is necessary so to do, but
nevertheless if any witness so desires, his evidence shall be read to him.

NOTES

1. Sub-rule (l).-The court and judge-advocate must carefully listen to the actual questions put
by the prosecutor and by or on behalf of the accused, as well as to the form ill which such
questions are put and they should intervene before the witness replies, if, in their opinion, any
question is improper or "leading". If either the prosecutor or the accused, or the officer or counsel
representing him, considers that a particular question about to be put by him may be objected to,
he should submit the propriety of the question to the decision of the court, having first informed
the witness that he must not make his reply until the decision of the court has been given.
 2. Sub-rule (2).-When the evidence of a witness has been read to him, he should be asked
whether it is correct. Any material alteration or explanation should be inserted at the end of the
record of his evidence, and not by way of interlineations or erasure.

213. Examination and cross-examination. - (l) A witness may be examined by the person
calling him, and may be cross-examined
by the opposite party to the proceeding, and on the conclusion of the cross examination may be
re-examined by the person calling him on matters raised by the cross-examination.

(2) The court may, if they think fit, allow the cross-examination of a witness to be postponed.

214. Question to witness by members of court or judge-advocate.-(l) The president the

judge advocate (if any) and, with the permission of the president, any member of the court may
address a question to a witness while such witness is giving his original evidence and before he
withdraws.

(2) Upon any such question being answered, the president or judge-advocate, if any, may also
put to the witness any question relative to that answer which the prosecutor or the accused or
counselor the defending officer may request him to put and which the court deem reasonable.

NOTES

1. Sub-rule (l).-It will be noted that this rule applies to the original evidence of a witness and
not to any evidence given by him on being recalled. As to recalled witnesses, see rule 215.

It is desirable that any question should be put after the conclusion of the examination, cross-
examination and re-examination, if any, of the witness; but questions may properly be put to a
witness during his examination in order that his evidence may be clearly recorded.

2. Sub-rule (2).-The president or the judge-advocate should always, under the provisions of
this rule, put any question which they are requested by the prosecutor, or by or on behalf of the
accused, to put and which does not seem unreasonable

215. Recalling of witnesses and calling of witnesses in reply.(1) At the request of the
prosecutor or of the accused a witness may, by leave of the court, be recalled at any time before
the closing address of or on behalf of the accused, for the purpose of having any question put to
him through the president, or judge-advocate, if any.
 (2) The court may, if they consider it expedient, in the interests of justice, so to do, allow a
witness to be called or recalled by the prosecutor before the closing address of or on behalf of the
accused for the purpose of rebutting any material statement made by a witness for the defence or
for the purpose of giving evidence on any new matter which the prosecutor could not reasonably
have foreseen.

(3) Where the accused has called witnesses as to character, the prosecutor before the closing
address of or on behalf of the accused may call or re-call witness for the purpose of proving a
previous conviction or entries in the conduct sheet of the accused.

(4) The court may call or re-call any witness at any time before the finding, if they consider
that it is necessary in the interest of justice.

NOTES

1. Sub-rule (1).-The president or the judge-advocate should also put to a witness recalled under
the provisions of this sub-rule any further questions which .they consider necessary in view of the
answer given.

2. Sub-rule (2)-The power given under tills provision of calling or, recalling a witness should
only be exercised in exceptional circumstances, e.g., where it appears for the first time from the
evidence given at the trial, that a person, who has not been called either by the prosecutor or on
behalf of the defence, was present at, and probably witnessed, the occurrence which forms the
subject of the charge which is being tried.

Witness should not be called or recalled under this provision in order to supplement any
negligent conduct on the part of the prosecution. If witnesses are called or recalled under this
provision, the prosecutor and the accused should be invited to put or suggest any relevant
questions which in their opinion should be put by the court. If new evidence is given after the
closing address by or on .behalf of the accused, the court should permit the accused or his
representative to make a further address upon the new matter which has been elicited, if any.

216. Addresses by the prosecutor and the accused and the summing up of the judge-
advocate:-All addresses by the prosecutor and the accused or counsel on their behalf and the
summing up of the judge-advocate, may either be given orally or be in writing and, if in writing,
shall be read in open court.

NOTE
 In order to ensure that the closing addresses and the summing .Up are delivered before the
court on the same day, the prosecutor and the defence are to give a copy of their addresses to the
other party and the judge-advocate well in advance at a time to be fixed by the court for each
party. The court is to be adjourned for a suitable period.

217. Provision as to finding of insanity:-Where the court finds either that the accused is of
unsound mind and consequently 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
that it was wrong or contrary to low, the president shall date and sign the finding ; and the
proceedings, upon being signed by the Judge-advocate, if any, shall be at once transmitted to the
confirming officer as required by section 123.

NOTE

See section 21 and note thereto.

Evidence on navigational matters

218. Documents to be made available in navigational cases.(1) At all trials at which evidence
is to be given on the navigation of one of the naval ships or vessels, the commanding officer shall
make available such of the following documents as exist and are relevant in the trial:-

(a) the ship's log book:;

(b) the rough and fair engine room registers
(c) control room log;
(d) the chart or charts and sailing directions by which the ship was navigated;

(e) the last table of compass deviations ;

(f) the navigational data book and the gyro compass log;
(g) the commanding officer's night order book; and
(h) the navigating officer's note-book and work-book.

(2) Evidence by navigation experts.-Before a trial at which evidence is to be given on the

navigation of one of the naval ships or vessels the president shall, unless he considers the
circumstances so exceptional that such procedure would be a waste of time, order the documents
referred to in sub-rule(1) to be handed to one or more Navigation Direction or other competent
officers who shall work up the ship's recokning throughout the material time; the result, together
with such other details as may be required, is to be delivered to the court in the prescribed form
completed in all relevant respects and attested by the signature of the officer or officers so
directed, and he or they are to be sworn and to be subject to cross-examination by both
prosecution and defence as to its accuracy. The president is to endorse such report as approved if
the court concurs, and if not, an expression of its dissent is to be added, signed by the is to be
added, signed by the president, showing in what respects and for what reasons it dissents. With
the said report such officer or officers shall also deliver to the court a copy or tracing of the chart
by which the ship was navigated on which the position of the ship so determined have been laid
off, and also the determined position when ashore or in danger, as noted in the log book. The rate
and direction of the current and of the tidal stream and the state of the tide should also, if
possible, be ascertained, stated, and verified on oath.

(3) These documents, namely, the report in the prescribed form and the prepared chart, as
well as an attested copy of the ship's log book and the engine room register or of the control room
Jog, commencing from at least 48 hours before the ship took the ground or was endangered, if so
long from a known anchorage, are to accompany the minutes.

NOTES

1. Rules 218 & 222 provide a special procedure which must be followed in all trials at which
evidence is to be given on the navigation of any naval ship or naval vessel.

2. "Naval ship" and "naval vessel", see section 4, clauses (xxii) and (xxiii) As to the
definitions of the words "ship" and, 'vessel" generally see General Clauses Act, section 4. sub-
sections (51) and (56) respectively in part IV of this Manual.

219. Absence of documents.-Should the absence of any of the documents mentioned in rule
218 be likely to render it difficult for the officers mentioned therein to complete their task to the
satisfaction of the court, it is permissible for the prosecution to call an expert witness (if possible
a qualified Navigation Direction Officer) to assist the court. Such a witness would not be called
under sub-rule (2) of rule 218 and could, with permission of the court, be present to hear the
evidence and could then lay out the resulting courses on the chart. Like any other expert witness
he would be subject to unrestricted cross-examination.
220. Affidavits by local navigation experts.- At trials at which evidence may be required on
the navigation of a ship, affidavits or statutory declarations made by officers or others having
special local knowledge of navigation may be put in evidence by the person or persons on trial,
but not by the prosecutor.

221. Navigation Direction Officers-examination and cross-examination.- The examination

and cross examination of the officers who have been directed to perform the duty mentioned in
sub-rule (2) of rule 218 is to be limited to ascertaining the accuracy or inaccuracy of the
document thus laid before the court. Nevertheless, if on other navigational experts are reasonably
available and it is desired to have further evidence from such experts, the court may recall these
officers and permit them to be questioned on other navigational matters by both the prosecution
and the defence.
 222. Evidence of negligence not specifically stated. –If the court, at any time during the
trial, considers that the accused has been negligent in any way not specifically detailed, they shall
formulate a fresh allegation and inform the accused that they hold this view at .that particular
stage of the trial, and invite him to deal with the fresh allegation in his defence, adjourning the
court if necessary to give him time to meet it. Any witness for whom the accused asks shall, if
practicable, be called or recalled. If he is a prosecution witness, he may be cross-examined by the
accused's friend and re-examined, by, the prosecutor. If he is a defence witness he may be
examined by the accused's friend. Cross-examined by the prosecutor and re-examined. by the
accused's friend. If the charge is found proved, any such additional heading indicating a form or
negligence, if finally established to the satisfaction of the court, should be included in the finding.

NOTE
This rule empowers the court during a trial relating to navigational matters, to add a fresh
charge of negligence, it at any time during the trial they consider that the accused has been
negligent in any way which is not specifically detailed in the charge on which he is being tried.

It is to be noted that this rule is an exception to the normal procedure laid down in rule 143
(2) under which any addition to, omission from, or alteration in a charge can only be made by
the convening authority. see note 2 and 3 to rule 143.

Offences relating to Court-Martial by Witnesses and others

223. Offences of witnesses and others.-When any court-martial is of opinion that there is
ground for inquiring into any offence, specified in section 73 or 74 and committed before it or
brought under its notice in the course of its proceedings, or into any act done before it. or brought
under its notice, in the course of its proceedings which would if done by a person subject to the
Ordinance, have constituted such an offence, such court-martial may proceed as follows that is to
say:-

(a) If the person who appears to have committed the offence is subject to the Ordinance, the
Court may either take cognizance of the fact and sentence the offender as provided in sub-
section (2) of section 73 OI: may bring his conduct to the notice of the proper naval
authority with a view to his trial summarily or by court-martial, and may if necessary,
order him to be placed in naval custody.
(b) If the person who appears to have done the act is subject to military or air force law the
court may bring his conduct to the notice of the proper military or air force authority.
(c) If the
person
who
appears to
have done
the act is
subject
neither to
the
Ordinance
nor to the law, then;
military
or air
force
(i) in the case of acts which would, if down, by a person subject to the Ordinance, have
constituted an offence under clauses (a), (b),(c) and (d) of sub-section (1) of section 73,
the officer who summoned the witness to appear or the president of the court-martial, as
the case may be forward. a written complaint to the nearest magistrate of the first class-
having jurisdiction;
(ii) in the case of acts, whi6h would, if done as aforesaid have constituted an offence
under clause (e) or clause (f) of sub-section (1) of section 73, the court may either take
cognizance of the offence and sentence the offender as provided in sections 48O and
481of the Code of Criminal Procedure. 1898 (Act V of 1898), read with sub-section (2)
of section 95 or after recording the facts constituting an offence and the statement to the
offender, if any, forward the case to the nearest magistrate of the first class having
jurisdiction for trial in accordance, with the procedure laid down in section 482 of the
Code of Criminal Procedure, 1898 (Act V of 1898); and
(iii) in the case of acts which would, if done as aforesaid have constituted an offence under'
section 74, the court making any preliminary enquiry that may be necessary may send
the case to the nearest magistrate of the first class having jurisdiction for enquiry or trial
in accordance with section 476 of the Code of Criminal Procedure 1898 (Act V of
1898).

NOTES
1. When in the course of a trial by court-martial, it appears to the court that a person has
committed any of the offences specified in section 73 or section 74 of the Ordinance and the
court is of opinion that there are grounds for inquiring into the matter, they may proceed in the
manner prescribed by this rule.
2. Clause (a)-i.e., when the offender is a person subject to the Ordinance.-

The court may either :-

(i) take cognizance of the fact if the offence is one under section 73 (1), and the court
considers that offender should be tried by them summarily, the court may sentence the
offender as provided in section 73 (2). This is not possible if the alleged offence is one of
giving false evidence under section 74; or
(ii) may bring his conduct to the notice of the "proper naval authority" (see rule 2 (e), normally
the convening authority, for suitable disciplinary action. The court may also, if necessary,
order the offender to be placed in naval custody. If such a person is ordered into custody,
this fact must be mentioned in the report and it then becomes the duty of the officer
receiving the report to see that the case is promptly investigated in accordance with section
90 of the Ordinance. The report should be in sufficient detail to place the officer in full
possession of the facts and enable him to exercise his discretion whether to order the trial of
the offender, by court-martial or to direct a summary trial.

3. Members of a court-martial reporting an offender under clause (a) are individually

disqualified from trying him on the charges arising out of their report, rule 133 (2); and the officer
to whom the case is finally referred if he decides on trial, must convene new court for the
purpose.

4. A court-martial should exercise the greatest discretion in instituting proceedings or taking

measures which may result in the institution of proceedings against a person subject to the
Ordinance for the offence specified in section 74. It is not enough that the court-martial has by its
verdict shown that it did not believe the witness, for it may have thought him to be, mistaken, or
on the balance probabilities, it may have accepted another version of what took place. Before
instituting proceedings against a witness the court should be satisfied that there are good grounds
for believing that the witness has made a statement which he knows to be false of does not
believe to be true, on some point which is material to the issue, and that his conviction is likely,
see notes to section 74.

When it is likely that a witness will be prosecuted for giving false evidence the exact words
used in the language in which the evidence was given should be recorded see rule 188 (1).

5. Clause (b)-i.e., When the offender is a person subject to military or air force law.-In the
case of such person the only course open to the court is to make a report about his conduct to the
proper military or air force authority. It would then be a question for that authority to take
appropriate disciplinary action against the offender.

6. Clause (r)-i.e., When tile offender is a civilian:-

(i) In a case where a civilian offender is involved, it is to be noted that sections 195 and 476
of the Code of Criminal Procedure provide for the institution of proceeding for certain
offences against the Penal Code on the written complaint of the public servant concerned or
of the court before which the offence complained of was committed. A court-martial is a
criminal court" for the purposes of the above sections and is also a "court of justice" for the
purposes of the Penal Code. (See Code of Criminal Procedure section 6 and Penal Code
section 20). The effect of this is that all acts and omissions which are punishable under
section 73 (1) (a), (b), (c) and (d) when committed by persons subject to the Ordinance are,
when committed by civilians, offences under sections 174, 175, 178 or 179 of the Penal
Code for which the officer who summoned the witness to attend or the president of the
court-martial, as the case may be can institute proceedings, under section 195 (1) of the
Code of Criminal Procedure. Similarly all acts and omissions which are punishable under
section 73 (1) (e) and (f) or under section 74, when committed by persons subject to the
Ordinance, are, when committed civilians, offences under sections 228, 193 or 194 of the
Penal Code for which the aggrieved court-martial can institute proceedings under section
476 of the Code of Criminal Procedure. Before instituting proceedings a court-martial must
prima facie be satisfied that a definite offence has been committed by some definite person
against whom proceedings in a criminal court are to be taken. It is not sufficient that
circumstances may raise some sort of a suspicion against someone. In such a case the
officer or the court-martial, as the case may be, should either allow the matter to drop, or
should make or hold a preliminary inquiry to see who is to be prosecuted and for what
offence. A court's decision to institute proceedings must be a judicial one, i.e., either based
on what the court has itself heard of seen and considered, or .on the evidence taken before
it and considered. Similarly, mi officer's decision to institute proceedings must be a
reasonable one, based on sufficient grounds.
 (ii) The report to the magistrate may be in the form of a letter, but it should be sufficiently
detailed to put him in full possession of all the materials on .which the decision to
prosecute was based. It should set forth the name and the identity of the person accused
and of the witnesses who can substantiate the accusation. A narrative of the event
complained of should be included in the report and a record of the evidence taken in the
preliminary inquiry (if any) attached.
(iii) If a case arises in which it appears necessary to resort to the provisions of section 476 of
the Code of Criminal Procedure outside Bangladesh the officer, or the court-martial as the
case may be should, in the first instance ascertain whether the civilian concerned is
amenable to the laws of Bangladesh. Pending a decision on his point the court-martial
should content itself with excluding him from the room in which its proceedings are held, if
such course appears to be necessary.

7. Clause (C), sub-rule (ii).-When a civilian appears to have committed any act, which would
be punishable under section 73 (1), (e) or (f), if committed by person subject to the Ordinance, it
is open to the court-martial in respect of which the offence is committed, itself to take cognizance
of the offence and follow the procedure laid down in sections 480 and 48i of the Code of
Criminal Procedure and sentence the offender to fine not exceeding two hundred taka, and in
default of payment to simple imprisonment for term which may extend to one month, unless the
fine be sooner paid. Also see section 95(2) of the Ordinance.

Section 480 Cr. P. Code provides summary remedy, which enables a court to preserve its
decorum and maintain its dignity. It gives special power to court to deal with a case of insult
offered to the court in its presence. The court is not bound to hear any evidence, it can rely on its
own opinion of what happened, and can detain the offender in custody, take cognizance of the
offence, and sentence him. All this, however, is normally required to be done before the rising of
the court, that is, on the same day. It is not desirable for the court to hear evidence and postpone
sentence until a later date.

8. If a court-martial should find it necessary to take cognizance of the offence, it should bear in
mind that rule 223 empowers it to take action under sections 480 and 481 Cr. P. Code only in
cases where the act complained of would have constituted an offence under clause (e) or clause
(f) of sub-section (1) of section 73 of the Ordinance, and .not. as offence under any of the other
clauses of that sub-section. The record of the court should show:-

(i) the facts, showing the nature and stage of the proceedings interrupted;

(ii) the nature of the interruption or insult. Where possible, the very words used by the
offender should be reproduced;

(iii) the statement of the offender, if any; and

(iv) the finding and sentence.

For Warrant of commitment, see Form L in the Fifth Appendix.

 9. If the court consider that the conduct of the offender calls for a heavier sentence. than that
permissible under section 480 Cr. P. Code, they may record the facts constituting the offence and
the statement of the offender, if any, and forward the case to the nearest magistrate of the first
class having jurisdiction for trial in accordance with the provisions laid down in section 482 C. P.
Code. The court 482 Cr. P. code. The court may require security to be given for the appearance of
the offender before such magistrate, or if su8lcient security is not given, shall forward him in
custody to such magistrate.

10. When a person, whether subject to the Ordinance or not, commits an offence, which is
punishable under any of the clauses of sub-section (1) of section 73, or under the corresponding
.sections of the Penal Code, a court-martial, instead of resorting to the more severe measures here
indicated, may accept an unconditional apology from such a person, if in the opinion of the court
it is sufficient to indicate their dignity.
 CHAPTER XI
SUMMARY GENERAL COURT-MARTIAL

224. Foregoing rules relating to court martial general inapplicable to summary general
court-martial.:- The rules relating to court martial contained in Chapters IX and X shall not, save
as hereinafter provided, apply to summary general court-martial, which shall be subject to the
rules contained in this Chapter.

225. Convening of summary general court-martial.-A summary general) court-martial may

be convened by any officer mentioned in section 98 and the proceedings recorded in accordance
with the form set out in the Fourth Appendix to these rules, with such variations as the
circumstances of each case may require;

NOTE

As to convening of summary general court-martial see section 98 and notes convening order
must be signed personally by the convening officer.

226. Composition of summary general court-martial-(l) The provost-marshal, an assistant

provost-marshal, or an officer who is prosecutor of witness for the prosecution, shall not be
appointed a member of the court, but save as aforesaid any available officer may be appointed to
sit. .

(2) The officer convening the court may also appoint a fit person to act as judge-advocate.
NOTE
1. The provisions of section 99 apply to summary general court martial in as much as:-

(i) it shall consist of not less than three and not more than five officers;

(ii) the officers may belong to any branch of the Navy;

(iii) each officer must-have held commission for a period of not less than three years;

(iv) all officers must be of or above the rank or" lieutenant-(the president, however, must
not be below the substantive rank of a lieutenant c0mmander; section 98 (2);

(v) the president and all other members, including spare members, must be nominated by the
convening authority;

(vi) the convening officer cannot be a member of the court-martial, nor must any of the
person mentioned in sub-rule (1) be appointed a member of the court;
 (vii) the court must not consist of officers all of whom belong to the same ship or naval
establishment; and

(viii) if the court is convened for the trial of an officer, it shall not include more than one
member, who is below the rank of such officer.

2. As to the consequences of failing to comply with the above-mentioned mandatory

provisions of the Ordinance, see notes to section 99 and section 240.

3. The appointment of a judge advocate on a summary general court-martial is optional as it

is in the case of a district court-martial; but if a "fit person" (see rule 202) is available he should
be appointed except in simple and straight forward cases. Once, however, a judge-advocate has
been appointed, the court cannot proceed with the trial in his absence (section 100 (2)).

227. Charge.-The statement of an offence may be made briefly in any language sufficient to
describe or disclose an offence under the Ordinance; No formal charge-sheet shall be necessary,
but the convening officer may nevertheless direct separate trial of two or more charges preferred
against an accused; or the accused before pleading may apply to be tried separately on anyone or
more of such charges on the ground that he will be embarrassed in his defence if not so tried
separately, and the court shall accept his application unless they think it to be unreasonable. If
such charges are separately tried the provisions of rule 103 shall apply as if the summary general
court-martial were a district court-martia1.

NOTE

As to separate trial of two or more charges, see rule 175 and notes thereto.

228. Trial of several accused persons.- The court may be sworn or affirmed at one time to
try any number of accused persons then present before it, but except so far as accused persons are
tried together for an offence averred to have been committed collectively or averred to have been
committed by one or more of them and to have abetted or attempted by other or others, the trial of
each accused person shall be separate.

NOTE

As to joint trial of several accused persons, see rule 130 and notes.
 229. Challenges. - (I)-The names of the president and members of the court shall be read
over in the hearing of the accused person (2) If any accused person objects to an officer, the
object shall be dealt with in the manner provided in section 109 and any vacancies thus caused
shall be filled from among the spare members, if any, or by fresh member being appointed by the
convening officers.

(2) If any accused person objects to an officer, the object shall be dealt with in the manner
provided in section 109 and any vacancies thus caused shall be filled from among the spare
members, if any or by fresh member being appointed by the convening officer.

NOTE

As to the manner of making objections and the procedure to be followed, see section 109 and
rule 138 and notes thereto.

230. Swearing or affirming of the court.-The provisions of the foregoing rules 139 and 140
relating to the administering and taking of oaths and the making of solemn affirmations shall
apply to every summary general court-martial.

231. Arraignment.-When the court are sworn or have affirmed the judge-advocate, or the
president shall state to the accused the offence with which he is charge, with, if necessary, an
explanation giving him full information of the act or omission with which he is charged, and shall
ask the accused whether he pleads guilty Or -not.

NOTE

The procedure on arraignment of the accused, before a summary general court-martial shall, as
far as practicable, be the same as that before a district court "martial, as rule 242 makes certail1
rules applicable to such a court, ;-in particular attention is drawn to the notes appended to :

Rule 142 objections by the accused to charge;

Rule 144, special plea to jurisdiction;
Rule 145, plea in bar;
 Rule 146, general plea of 'guilty or" "not "guilty"; (which implies that, a plea of "guilty
"cannot be accepted if the offence is punishable with death);

Rule 147, procedure after plea of "guilty";

Rule 149, procedure after plea of "not guilty":

Rule 171.responsibility of president;

Rule 172, duties of the prosecutor; and

Rule 173, latitude to the accused in making his deffence.

232. Plea to jurisdiction.-If a special plea to the general Jurisdiction is offered by the accused,
and is considered by the court to be proved, the court shall report the same to the convening
officer.

NOTE
See rule 144 and notes thereto;
233. Witnesses and evidence.-(l) The witnesses, for the prosecution "shall be called and the
accused shall be allowed cross-examine them and to call any available witnesses for his defence.

(2) An oath or affirmation as provided in Fourth Appendix to these rules shall be administered
to every witness, before he lives his evidence, by one of the persons specified in rule 211.

NOTE

Although by rule 242 only a limited number of foregoing rules are applied; as far as
practicable to summary general court-martial the procedure to be adopted at such a court should
be the same as at a district court-martial.

234. Defence.- The accused shall asked what he has to say in his defence and shall be
allowed to make his defence. He may be allowed to have any person to assist him during the trial,
whether a legal adviser or any other person.

1. See note to rule 233.

2. As to the rights of the accused to prepare his defence, see rule 28 and notes.
 1. If the accused is assisted by a defending officer or a counsel he should be allowed full
privileges of address etc. See rules 195 to 201.

235. Record of the evidence and defence.-(l) The judge-advocate, or, if there is no judge-
advocate, the president shall take down, or cause to be taken down, a brief record of the evidence
of all the witnesses at the trial, and the record so taken down shall be attached to the proceedings:

Provided that, if it appears to the convening officer that the exigencies of the service or other
circumstances prevent compliance with this provision, he may direct that the trial may be carried
on without any such brief record being taken down.

(2) If the accused pleads "Guilty" the summary of evidence, if any, may be read and attached
to the proceedings, and it shall not be necessary for the court to hear witness for the prosecution
respecting matters contained in the summary of evidence so read.

NOTE

It would hardly ever be necessary for the convening officer to give such a direction as is
mentioned in the proviso to sub-rule (1). If he does so he must record it in his order convening the
court and state shortly the exigencies or other circumstances which appear to him to prevent
compliance with this rule.

236. Procedure at trial.-Where during the course of trial any doubt arises as to the procedure
to be allowed, in connection with the ca11ing or recalling or questioning of witnesses, or the
order in which witnesses are to be examined and addresses are to be made by the prosecutor or by
or on behalf of the accused the provisions of Chapters IX and X relating thereto, shall, so far as
practicable, apply as if the summary general court-martial were a district court martial.

NOTE

In case of doubt it is always advisable to follow the procedure laid, down in the foregoing rules
on the subject.
237. Finding and sentence.-(l) The court shall deliberate on their finding in closed court.

(2) If the finding on any charge is "Guilty" the court may receive any evidence as to character,
age, service, rank and recognized acts of gallantry or distinguished conduct or any previous'
conviction of the accused, which is available: the court shall then deliberate in closed court as to
its sentence.

(3) The court may award any sentence which a general court-martial can award but the
sentence of death, shall not be awarded unless all the, members of the court concur.

NOTE

As to voting by members, see section III and rule 182.

238. Proceedings after the sentence of finding.- The proceeding duly completed shall be
signed by the president and judge-advocate, if any, and transmitted to the confirming officer
without delay.

239. General provisions.-(I) A summary may adjourn from time to time and from place
when necessary, view any place.

(2) The proceedings shall be held in open court, in the presence of the accused, except during
any deliberation among the members, when the court may be closed.

240. Confirmation. - (1) The finding and sentence of a summary general court-martial shall
be valid only in so far as they are confirmed by proper authority.

(2) In any case where a sentence of death is passed, the convening officer shall reserve
confirmation of the sentence by an authority having power to convene a general court-martial;
Provided that the convening officer shall not be required to reserve confirmation by such
authority if on confirming the, sentence he commutes the punishment for any punishment other
than death.

NOTE
 See section 130 and notes as to confirmation generally.

141. Evidence of opinion of convening and confirming officer. Any statement in an order
convening a summary general court-martial as to the opinion of the convening officer, and any
statement in the minute confirming the finding of sentence of a summary general court-martial as
to the opinion of the confirming officer shall be conclusive evidence of that opinion, but this rule
shall not prejudice the proof at any such opinion when not so stated.

242. Application of rules.- The foregoing rules,

128 (Rights of accused to prepare defence),

129 (Warning of the accused for trial).
134 (Suspension of rules on the' ground of the exigencies of the
service or 'necessities of discipline),
137 (Appearance of accused, prosecutor, and the defending
officer),
142 (Objection by the accused to charge).
144 (Special plea to the jurisdiction).
145 (Plea in bar),
146 (General plea of "Guilty" or "Not Guilty").
147 (Procedure after plea of "Guilty").
154 (Consideration of finding),
155 (Form and record of finding),
156 (Procedure on acquittal),
157 (Procedure on conviction),
164 (Mitigation of sentence on partial confirmation).
166 (Confirmation not-withstanding technical or other deviation)
168 (Promulgation).
170 (Seating of members),
171 (Responsibility of president).
172 (Duties of the prosecutor),
173 (Latitude to the accused in making his defence).
176 (Sitting in closed court).
191 (Transmission of proceedings after finding),
192 (Preservation of proceedings).
193 (Right of person tried to copies of proceedings),
194 (Loss of proceedings).
204 (Evidence to be according to rules in criminal courts),
208 (Procuring attendance of witnesses) and
217 (Provisions as to finding of insanity). shall as far as
practicable, apply as , if a summary general court-martial
were a district court-martial.

NOTE

See also special procedure laid down for summary general court-martial in the following rules
:-
Rule 229 (challenges);
Rule 230 (swearing or affirming of the court); and
Rule 233 (witnesses and evidence).

CHAPTER XII

EXECUTION AND SUSPENTION OF

SENTENCES

243. Carrying out of sentence of death.-Upon the receipt of an order carry out a sentence
of death the officer to whom the order is issued shall.

(a) if the person sentenced has been committed to a civil prison under section 145 obtain
custody of his person by issuing warrant in one of the forms in the Fifth Appendix to these
rules;

(b) inform the person sentenced as soon as possible that the sentence has been confirmed
and of date OD which the sentence will be carried out ;
 (c) proceed to Carry out the sentence as required by the order and in accordance with any
general or special instructions which may from time to time be given by, the order the
authority of, The Chief of Naval Staff.

NOTES

1. A sentence of death is normally carried out in civil prison but where military, naval or air
force detention barracks are established, or the Government has, under section 149, set apart any
place under its control is a naval prison of detention barracks, such a sentence may conveniently
be carried into execution in such place.

Warrants (Forms A, B and C) given in the Fifth Appendix to the rules may be used, as
appropriate.

2. On active service, a sentence of death may be carried out as required by the

circumstances and in accordance with any general or special instructions on the subject issued by,
or under the authority of, the Chief of Naval Staff.

244. Procedure on commutation of sentence of death.-If a sentence of death is commuted

under the ordinance or if the person sentenced to death is pardoned, and

(a) if he has been committed to a civil prison under a warrant issued under section 145, a
further warrant in one of the forms given in the Fifth Appendix to these rules shall be issued
by the commanding officer of such person;

(b) if he has been detained in naval, custody, any warrant which may be necessary to give
effect to the sentence as so commuted shall be issued in one of the forms given in the Fifth
Appendix to these rules.

NOTE

For appropriate forms of warrants for action under this rule see Forms D, E and F in the Fifth
Appendix to the rules.
 245. Committal warrants.-(I) A warrant for the committal of a person to a civil prison, or to
a military, naval or air force prison or military, naval or air force detention barrack, under the
provisions of sections 143 to 145 shall be in one of the forms set out in the Fifth Appendix to
these rules. Such warrant shall be signed by the Commanding officer of the prisoner or by the
Commander of any higher naval formation within which the person sentenced may be or any,
staff officer of such commander.

(2) Medical examination.-A Medical Officer shall examine the offender before his
committal to a prison or detention establishment to ascertain whether he is physically capable of
undergoing his sentence, and again on his return to the ship. When a man sentenced to
imprisonment or detention is found or suspected to the suffering from a mental or physical
infirmity which is not considered to render him unfit to undergo his sentence, a report by a
Medical Officer to that effect shall accompany him to the prison or detention quarters.

NOTES

1. See Forms G.H and K in the Fifth Appendix.

2. If the sentence requires a Committal Warrant to be issued in terms of this rule or rules
243, 244 and 246, the Commanding Officer is to do so on an appropriate form-as specified in the
Fifth Appendix to the rules-amended as required to suit the particular requirements of the case.

3. A Copy of the same is to be forwarded forthwith to Naval Headquarters Naval Law

Department in respect of a sentence awarded summarily by the Commanding Officer; whereas in
case of a sentence by a Court Martial, a copy of it is to be attached to the proceedings after
promulgation.

246. Warrants under section 148.-Any warrant issued under the provisions of section 148
shall be in one of the forms set out in the Fifth Appendix to these rules and shall be signed by the
officer making the order in pursuance of which such warrant is issued, or by his staff officer.

NOTE
See Forms land J in the Fifth Appendix.

247. Sentence of dismissal-A sentence of dismissal awarded by a court-martial shall take

effect from the date on which the sentence is promulgated to the person sentenced, or except in
the case of an officer, from such subsequent date as may be specified by the commanding officer
at the time of such promulgation.

Provided that, when dismissal is combined with imprisonment or detention which is carried
out in military naval or air force prison, or in military, naval or air force detention barracks, or
other military, naval or air force custody the dismissal shall not take effect, until the date on
which the prisoner is duly released from a military, naval or air force prison or military, naval or
air force detention barrack or other military, naval or air force custody.

Provided also that, when dismissal is combined with imprisonment which is carried out in
civil prison the dismissal shall not take effect until the date on which the prisoner is received into
a civil prison.

NOTES

1. Under section 20 and rule 21 a "Termination of Service Certificate" must be furnished to

every sailor who is dismissed, discharged; or released from service.

2. A sentence of dismissal awarded by a court-martial to an officer takes effect from the date
of promulgation, or, when combined with imprisonment, from the date on which the prisoner is
received into a civil prison. In the latter case the commanding officer should report to the proper
naval authority the date of the prisoner's admission in the civil prison.

3. In the case of a sailor, it may sometimes be expedient for a commanding officer to specify
a date of dismissal subsequent to the date of promulgation, with a view to keep the sailor subject
to the naval law for a short period. If he considers such action desirable he must do so at the time
of the promulgation of the sentence to the person and he should record the date he specifies in the
minute of promulgation. When a commanding officer exercises his option of specifying a
subsequent date, the date specified must be strictly limited by the requirements of the case. For
instance, in the case of a person sentenced out of Bangladesh to dismissal alone, or to dismissal
combined 'with imprisonment which is carried out locally either in naval custody or for special
reasons in local civil custody through an order made under section 145 (3) of the Ordinance, (see
note to section 19), the subsequent date might he "date of disembarkation" or "date of
embarkation" according to whether the intention is to despatch the person to Bangladesh on a
transport or by private vessel. It is obviously desirable to keep the person subject to naval
discipline while travelling on a transport or until he can despatched to Bangladesh. If the person
is to be sent by a transport the commanding officer can enter in the certificate of termination of
service "date of disembarkation" as the date from which the dismissal takes effect.

4. The effect of the second proviso is that a prisoner under .sentence of dismissal combined
with imprisonment which is carried out in a civil prison remains subject to the Ordinance until he
is received into a civil prison. The commanding officer, in the case of a sailor, should enter on the
Termination of Service Certificate the date of admission into a civil prison as the date from which
the dismissal takes effect. (As regards the case of an officer, see note 2 above).

248. Sickness of accused persons and offenders.(l) An offender transfer to prison, etc, or a
person awaiting trial, by court-martial or otherwise, for a serious offence, shall not be sent, to
hospital without the sanction of the Administrative Authority. The officer in charge or command
of the Naval or Military Hospital shall be informed that the person is to be considered as under
arrest and pointed out one of the following categories into which he falls:

(a) offender; sentenced on…………..…to.......................................

(period), imprisonment or detention by court-martial;

(b) (i) accused person awaiting trial by court-martial; .

(ii) recovered deserter whose case has not yet been dealt with

(iii) accused person whose case has been investigated and charge proved, but punishment
not awarded.
(c) offender; sentenced summarily on…………………………….
to……………………(period) imprisonment or detention or confinement in ce11s.

(d) accused person awaiting summary trial, details of the nature of the offence, the
punishment awarded and the number and date of the punishment warrant shall also be sent, if
appropriate.
 (2) Such officers or men are not to be brought forward for survey with a view to invaliding
without the special directions of the chief of Naval Staff. When a survey is held under such
directions the result shall be reported to the Chief of Naval Staff, who shall subject to the
provisions of this rule decide the disposal of the person concerned.

(3) The Chief of Naval Staff shall not, in consequence of the report of the surveying officers,
authorize any step which may result in an accused persons escaping trial unless the surveying
officer certify that his mental condition at the date of the alleged offence. was such that he ~as not
responsible for his actions, or that his physical or mental condition is such that even the fact of
being tried, apart from any sentence that might be awarded, would be likely permanently to
impair his health. When survey of an accused person is likely to be delayed by hospital treatment,
certificate may be signed by any three medical officers.

(4) If the surveying officers certify that a person awaiting trial for desertion was not
responsible for his actions at the time of the -a1leged desertion, the commanding officer shall
substitute the notation "Shore" for that of desertion ("R") in accordance with sub-rote (4) of rule
60, but pay shall not be credited for the period of absence.

(5) Where the physical condition of a person awaiting trial for desertion is certified to be such
that trial is likely permanently to impair his health, directions of the Chief of Naval Staff shall be
sought a bout the notation of desertion and credit of pay and while submitting the case for such
directions details of the offence and illness shall be given.

(6) The Chief of Naval Staff shall not, in. consequence of the report of the surveying officers,
authorize any step which may result in a person under sentence of imprisonment or detention
escaping the residue of his sentence, unless the surveying. Officers certify that the offender is
medically unfit to undergo even a modified prison or detention routine, as the case may be. If
they so certify, the offender may, provided that he is not to be dismissed or discharged for
misconduct, be invalided from the service; but care shall be taken that the sentence is shown on
his service book and elsewhere as necessary. The sentence may then be formally remitted.

(7) If the surveying officers certify that the offender's mental Condition at the date of the
commission of the offence must have been such that he could not be held responsible for his
actions, directions of the Government shall be sought whether or not the finding and the sentence
shall stand.
 Sub-rule' (7).-See section 35 as to the power of review.

249. Suspension of sentence.-Effect on accompanying punishments-An authority or officer

having power under section 155 to order suspension of a sentence of imprisonment or detention
may, in cases in which a committal order has not been issued, direct that any punishment of
disranking or deprivation of good conduct badges involved in the sentence shall be suspended
also. If the authority or officer does not so direct the other punishment or punishments shall take
effect as if the sentence had not been suspended. If a committal order has been issued before the
sentence is suspended, the other punishments shall be maintained as from the date of the
sentence. If a committal order is subsequently issued in respect of a sentence which has been
suspended the other punishments, if previously suspended, shall be enforced as from the date of
committal. Punishments not mentioned above which may be awarded at the same time as a
sentence of imprisonment of detention, namely mulcts of pay and stoppage of leave, shall not be
suspended. Forfeiture of pay and service shall be governed by the period of the sentence actually
served.

(2) Other consequential effects.-A sentence of imprisonment or detention even if suspended

automatically causes a break in the period of "Very Good conduct". An officer suspending a
sentence of imprisonment or detention may direct: that the character of the offender is to be
assessed as if the full sentence had been served. If he does not so direct and the Sailor is under a
suspended sentence when a character assessment is required under the regulations, the assessment
shall reflect only that part of the punishment or accompanying punishment which has actually
been enforced. If the suspended sentence or the suspended portion thereof be subsequently
enforced the original character assessment shall be altered to that appropriate to the full sentence.
 CHAPTER XIII

CIVIL OFFENCES

250. Concurrent jurisdiction of a Naval Tribunal and a Criminal Court.-(l) Where

offence is triable by a criminal court as well by naval tribunal under sections 78 the question
whether the proceedings are to be instituted before a criminal court or a naval tribunal Shall be
decided by the appropriate Administrative Authority which shall be the prescribed naval authority
within the meaning of section 107.

(2) If however, a notice is given by the criminal court under sub section (2) of section 107,
such Authority shall, unless it is of opinion that the proceeding, be instituted in the crhl1inal
court, in which case it shall hand over the accused to the civil authorities postpone the
proceedings and refer the matter to the chief of Naval Staff who shall decide whether proceedings
be allowed to be instituted in the criminal court or a reference be made to the Government under
Sub-section (3) of the said section.

(3) The criminal court shall be kept informed of the action take in this behalf.

NOTE

Sub-rule (l).-must be read with rule 286, which provides that in cases where death has resulted
(e.g., as a result of a rash or negligent act, punishable under section 304-A of the Penal Code, the
prescribe authority for the purposes of section 107 shall be the Chief of Naval Staff and no lower
authority.

251. Exercise of jurisdiction.-In deciding whether an offence falling under, section 78 should
be tried by a naval tribunal or by a Criminal court the following considerations shall be kept in
view by the competent naval authority, namely:

(a) when the offence is committed on board a ship or in a naval establishment or within a naval
area, or when the offender is required to proceed out of Bangladesh or when the exigencies of
the service and the requirements of maintaining discipline require prompt action the
offender should normally be tried by a naval tribunal.

(b) when the offence relates to the person or property of a civilian, or has been committed in
conjunction with a civilian, the offender should normally be handed over to the civil
authorities for trial by a criminal court.
 252. Assisting civil authorities-The commanding officer shall afford every facility to the
civil authorities in detecting persons serving on board whose arrest is required on any criminal
charge but he shall require any constable or other civil officer coming on board to search for or
apprehend such person, to produce the warrant or to show satisfactory evidence as to the authority
under which he acts. No such person shall be handed over to the civil authorities but may be kept
in naval custody at the discretion of the commanding officer, who shall at once report the case to
the Administrative Authority for orders. Such Authority shall decide in accordance with section
107 and rule 250 whether the offender is to be tried by a naval tribunal or by a criminal court. The
commanding officer shall inform the civil authority of the decision and shall take necessary
action accordingly.

253. Trial by civil power-attendance of officer-(1) When an officer or Sailor is to be tried

by a criminal court the commanding officer of the accused may at his discretion depute an officer
to attend the trial, taking into consideration the gravity of the charge, the distance from the ship to
the court and the exigencies of the service.

(2) If the officer so deputed is called upon by the criminal court to testify to the character
and antecedents of the accused that officer shall not give any information regarding the, minor
offences against the discipline of service committed by the accused unless specially required by
the court to do so, nor shall such officer take the conduct sheet of the accused to the court.

(3) If the accused is committed for trial the officer deputed to attend the trial shall mention to
the accused the desirability of asking the court whether he is not entitled to bail or if not entitled
whether he may not have bail.

(4) Before leaving the court, the officer shall obtain sufficient information from the court or
from an officer of the court regarding the progress of the case.

254. Men admitted to bail.- When a man arrested by the civil authorities is subsequently
admitted to bait, and the ship to which he belongs is to leave the port before the decision of his
case, he shall if possible be lent to a ship remaining at the port and if no naval accommodation is
available, he shall be handed over to the civil authorities before the ship leaves.

255. Expenses of rejoining ship on conviction.-A man who is left behind by his ship
because. of proceeding against him in a criminal court by which he is subsequently convicted,
shall ordinarily, in the absence of an early Government opportunity, be liable for the whole cost
of rejoining his ship Special cases in which owing to the movements of the ship, it is considered
that the liability should not be enforced may represented to the Chief of Naval Staff.
 256. Restriction of pay and allowances during. Trial .(1),When a person is under arrest in
naval or civil custody on a charge an offence the relevant- Administrative Authority may direct
that not more than one-half the pay an allowances due to him shall withheld during the period of
such arrest.. If he is subsequently acquitted, the amount so withheld shall be paid to him; but, if
convicted the amount already paid may be recovered as far as possible.

(2) In the event of the person resuming duty on having been released on bail pending his
appeal against conviction by a criminal court he shall be entitled to receive his pay and
allowances in full from the date he resumes his duty.

(3) If the person remains in custody, otherwise than as a prisoner undergoing a sentence of
imprisonment, during the pendency of his appeal his pay and allowances shall continue to be
withheld to such extent as the Administrative Authority may direct provided always that the
maximum amount thus withheld in any one month shall not exceed one-half of his pay and
allowance's for that month.

(4) The amount paid to such person while he is in custody shall not be recovered from him
until his appeal, if any, bas been finally rejected.

257. Consequences of conviction by civil power.-(I) When a Sailor is convicted by a

criminal court he shall be liable to forfeit pay and service for the time sent in civil custody and he
may incur a naval penalty under the provisions of this rule.

(2) Forfeiture of pay and service.-A sailor shall forfeit one day's pay and service for each day
(or part of a day) during which be is detained by the civil authorities as part of the same sentence.
He shall also, as a general rule, forfeit pay and service on the same scale for time spent in custody
while awaiting and attending his trial, but only if the absence interferes with the performance of
his normal duties on that day; and the commanding officer may at his discretion remit this
forfeiture altogether if the loss of services is trivial. The Chief of Naval Staff may on the
recommendation of the commanding officer, reduce it if the absence is spread over a number of
days and the full forfeiture would in the opinion of the Chief of Naval Staff be excessive. No
Sailor shall forfeit more than one day's pay and service for anyone calendar day.

(3) There may be three or more separate periods for which a sailor forfeits pay and service in
respect of a single conviction:
(a) from the date of his arrest (unless he is on leave at the time) or from the expiration of his
leave (if he is arrested during leave and is still in custody when his leave expires).
 (b) from the date of surrender to bail (if he has been allowed to return to his ship pending
trial);
(c) from the date of a sentence of imprisonment. Each such period shall be shown separately
in the "Time Forfeited column of the service certificate, even if some of them are
continuous.

(4) Naval penalties.- An officer considering a naval penalty following a civil conviction must
realize that he is not empowered to punish the sailor again for his offence or to take account of
any opinion he may have formed about the adequacy or otherwise of the sentence. However, the
effect of the offence on the service is to be taken into consideration. If the offence be one that has
brought disgrace or discredit to the service and the sailor is considered not fit to remain in the
navy, Government has an inherent right to dispense with his services. In offences involving moral
turpitude, the sailor may be discharged as "Undesirable", and in other case as "S.N.L.R.". If
however, due to the offence, the sailor is not considered fit to have charge of other man, at least
for the time being, he may be reverted to a lower rank, so long as he is given the option leaving
the service if he prefers. Similarly the offence may be such that the man could not be regarded as
good character or conduct in the ordinary sense. It would then be unfair to sailor with unb-
lemished records if the offences were not taken into account in assessing naval character and
conduct. A sailor misbehaves on shore may also be deprived for the time being of the privilege of
wearing plain clothes on shore. Thus the only naval penalties are:

(a) discharge "Undesirable";

(b) discharge S.N.L.R:, (services no longer required);
(c) reversion (with the option of discharge S.N,L.R.,) involves
a character assessment not higher than "Good" and a break in "Very Good Conduct.
(d) an inferior character on the next occasion of assessment (e.g. "Good" "Fair" or
"Indifferent"-)'Which involves a break in very good conduct.

(e) a break in continuity of "Very good conduct Which takes effect from the data on 'Which
the offence was found provided .

(f) Withdrawal of the privilege of wearing plain clothes for a period not exceeding a year and
the only criteria that may be taken into account in awarding them are those described above. A
naval penalty shall be appropriate only in respect of an offence committed during the period
of a man's naval engagement.
(5) Reports to superior authority.-When the commanding officer considers that penalty (a),
(b) or (c) in sub-rule (4) is justified he shall submit his proposal, with a report of the trial to the
Administrative authority, on the Form S. 273 "Report of Arrest and Trial, by civil power" set out
in the Second Appendix to these rules. The sailor shall be informed that approval is being sought
to impose a naval penalty but he shall not be informed which penalty bas been proposed. If the
commanding officer considers that the proper penalty is reversion, he shall bear in mind that it is
necessary to give the sailor option to be discharged as S. N. L. R. Before this is done, the
approval of the Chief of Naval Staff shall be, obtained. In such a case the sailor to which the
commanding officer considers that the sailor should be reverted shall be indicated on the from. A
duplicate of the form shall be made for reference to the Chief of the Naval staff and Sent to the
Administrative Authority with the sailor's service book and conduct sheet. On the receipt of the
Chief of Naval Staff 's authority, the commanding officer shall, inform the Sailor that approval
has been given for him to be reverted to the particular rank, but that, if he prefers, he may be
discharged S.N.L.R. instead and that he has forty-eight hours in which to make up his mind. At
the end of that period he shall be discharged or reverted accordingly, without further reference to
any higher authority. If the commanding officer holding the rank of captain considers penalty (d)
or (e) in sub-rule (4) to be appropriate he may approve the imposition of the penalty himself, in
which case the form is not required: if he is below the rank of captain, he shall seek the approval
of the Administrative Authority by submitting a report on the form. Penalty (f) in sub-rule (4)
may be imposed on the authority of the commanding officer irrespective of his rank.

(6) Information regarding imposition.-Every man shall be told formally by his commanding
officer of any penalty imposed upon him. When he appears before his commanding officer for
this purpose, he shall not be treated as a defaulter but shall keep his cap on and be dealt with after
request men. If the sailor is in a civil prison, the decision shall be communicated to him in
writing.

(7) Notation.-Particulars of naval penalties awarded shall be noted on the sailor's conduct
sheet. An inferior character assessment shall also be noted without delay in the appropriate
section of the sailor's service book. The date of recommencement of the period "Very Good
Conduct" shall be underlined, unless results from reversion.

(8) Disposal of form.-Reports of arrest and trial by civil authorities (form S.273) are to be
numbered consecutively, a new series being started on the first January or each year. They shall
be forwarded with the Punishment Return. When such a report has not been necessary, the
following details of naval penalties imposed by the commanding officer are to be inserted on the
Punishment Return:-

(a) Brief details of offence and where committed;

(b) Sentence of the court;

(c) Penalty imposed.

(9) Appeal to higher court;-When notice of appeal to higher court is given, action regarding
any naval penalty which it is proposed to impose shall, be deferred pending the result of the
appeal. If the sailor returns to duty pending the hearing of the appeal, he shall be uneffected by
the decision in the original court. If the conviction is upheld on appeal, any naval penalty which
may then be approved, shall take effect as if there had been no appeal.

NOTES
 Form of Report (S. 273)-&s set out in the Second Appendix to the rules is reproduced below:-

________________________________________________________________________________________________________
_______________________________________________________________________________

S. 273 REPORT OF ARREST AND TRIAL BY CIVIL POWER

(Recommendations for Naval Penalties)

NOTE.-(i) This report is required only when the Commanding Officer cannot himself approve the
naval penalty (compare Notes (iii), (v) and (vii) below:

(ii) After action this form is to attached to the Punishment Return Form S.181-relevant to
the date on which the offence was found to be proved.

B.N.S………………………..No……………………………………….

_________________________________________________________

Name……………………..Rank……………………...0.No...................

Date of commencement
of "Very Good Conduct"……………

No of Good Character assessed to date

Conduct Badges………. from last assessment..............

2. If on leave, state
(a) Date and time at which leave expired. .. . .. . . .. .. .. . .. .. .. . .. . (b) Date and hour of return to
ship, if released pending trial. . . . . . . .

3. Period absent from ship to attend Court.. ..,rightright.Date............

From. . . . . . . . . . . . . . . . . . . . . . . . .. .. to.rightright. . . . . . . . . . . . . . . . . . .

4. Forfeiture of pay and service . . . . . . . . . . . . . . days

5. Date of trial............................................

6. Before what Court charged..............................

7. Offence of exact terms or-charge………………………

8. Order of Court in exact terms of order.. .. .. . .. . .. .. .. ..

(If offender was fined and/or ordered to pay costs, state whether paid).

9. Rank and name of officer who attended the trial…………………….

10. The offence having been found proved by the court, which of the following naval penalties is
proposed:

(a) Discharge undesirable. . . . . . . . . . . . . . . . . . . . . . .

(b) Discharge S.N.L.R..........................

(c) Reversion with the option of discharge S. N. L. R..................

(Insert the rank to which it is proposed the man should revert)

(d) An inferior character at the next assessment as specified in the regulations (if not
automatically involve by any other penalty)…..

(Insert proposed character or answer “NO”)

(e) Break in continuity of "Very Good Conduct"

(if not automatically involved by other penalty)…………rightright........

(f) Withdrawal of privilege of wearing plain clothes. ........ .. . .

 (Insert period not exceeding 1 year)

Notes.-(iii) Naval penalties (a), (b) and (c) require the Administrative Authority's
recommendation and Chief of the Naval Staff's approval: Form S.273 is to be submitted
in duplicate and accompanied by the sailor Service documents.

(iv) Naval penalties (d) and (e) may be approved by Commanding officers of captain’s rank
Form S. 273 is not then required.

(v) Commanding Of6cers below the rank of Captain are to seek approval for naval penalties
(d) and (e) from the Administrative Authority or if such approval is likely to be unduly
delayed, the senior Officer present, provided he is of Captain's rank. The Commanding Officer
is to make his submission on form S. 273 accompanied by the Service documents.
(vi) If naval Penalty-(e) is enforced, the new date of commencement of "Very Good,
Conduct" is to be recorded in service documents as specified in the Regulations.
(vii) Naval penalty (f) may be approved by a Commanding Officer, irrespective of his rank.
Form S. 273 is not then required.

11. COMMANDING OFFICER'S OBSERVATIONS AND REMARKS ON PROPOSED

NAVAL PENALTIES (including a summary of the circumstances giving rise to the charge when
this is not conveyed in the exact wording of the offence at para 7 above).

………… Signature
rightrightRank
rightright………….Date

12. ADMINISTRATIVE AUTHORITY'S RECOMMENDATION REGARDING NAVAL

PENALTIES (a), (b) and (c) ABOVE OR DECISION OF ADMINISTRATIVE AUTHORITY
OR SENIOR OFFICER REGARDING NAVA L PENALTIES (d) and (e) ABOVE:

………… Signature.
rightrightRank
rightright………….Date

CHAPTER XIV BOARDS OF INQUIRY

 258. Board of inquiry, other than an inquiry into absent without leave.-(l) A board of
inquiry is an assembly of officers, directed to collect and record evidence, and if so required" to
report or make a declaration with regard to any matter which may be referred to them.

(2) A board of inquiry may be assembled by an officer in command of a ship or establishment or

any superior authority.

(3) The board shall be composed of one to three officers who may be of any branch or
department of the service, according to the nature of the investigation.

(4) Where, in the opinion of the authority who assembles the board, any of the matters to be
referred to it concerns any. Part of military or air forces, or any civil department of the
Government, or wherefore any reason it is considered expedient or desirable, the said authority,
may with the consent of the proper military, air force or civil authority, appoint one more
military, air force and civilian gazetted officers or any of them, to be members of the board,
provided that the president shall be an officer of the Navy.

(5) The president of a board of inquiry shall not be of a rank less than that of lieutenant,
unless in the opinion of the assembling Authority an officer of that rank is not, having due regard
to the exigencies of the service, available. Where the board is directed to express an opinion
which may bear upon the conduct, character or professional reputation of an officer, the president
shall not be junior in rank or seniority to that officer.

(6) Officers detailed to constitute the board shall have no personal interest in the subject-
matter of the inquiry and where the inquiry may involve technical or professional- knowledge or
skill of any description, at least one-officer having appropriate qualifications shall be included in
the board as a member.

(7) An assembling authority shall furnish the board with terms of reference, sating, in detail
the character of the investigation required and prescribing the nature of any report or declaration
to be made in the findings.

(8) Previous notice shall be given of the time and place of meeting of a board of inquiry, and
of all sittings of the board, to all persons concerned in the inquiry, except a prisoner of war who is
still absent .
(9) A person whose conduct is the subject- matter of a board of president or any
member of the board of inquiry, and if he objects, his objection and also the reply thereto of the
officer objected to, shall be recorded and the proceedings preferred to the authority who
assembled the board, who shall there upon decide on the relevancy or validity of any such
objection.

(10) It shall be the duty of board of inquiry to put such questions to a witness as they may
think desirable for the purpose of testing the truth or accuracy of any evidence he has given, and
for eliciting the truth . In order to ensure that a witness may not be compelled to answer a
question which might directly or indirectly incriminate him, he shall be cautioned, before being
examined, in the following terms and the fact that he has been so cautioned shall be recorded in
die minutes:-

(a) For witnesses subject to the Ordinance.-"You are privileged to refuse to answer any
question the answer to which may tend to expose you to any penalty or forfeiture; it will be
for you to raise the objection and for the board to decide whether you must answer the
question or not.
Note: No one charged with an offence can be compelled , to make a statement or answer any
question.

(b) For witnesses not subject to the Ordinance. -"This board is inquiring into a matter
affecting the naval service and is confident that you will give it all assistance in your power.
You are not however legally obliged to answer any question the answer to which may tend
to expose you to any penalty.
(11) A board of inquiry is not governed by the rules of evidence which are followed in a
criminal court. The board may, there fore, receive any evidence, whether oral or documentary,
which, in their Opinion is relevant to the is the issue.

(12) When a board of inquiry is held on a prisoner of war, and in any other case in which the
authority who assembled the board has so directed, the evidence shall be taken an oath or affir-
mation in which case the board shall administer the same oath or affirmation to witnesses as if the
board were a Court-martial.

(13) The authority who assembled the board shall; when the board is held on a recovered
prisoner of war, or on a prisoner of war who is still absent, direct the board to record their opinion
whether the person concerned was taken prisoner through his own wilful neglect of duty, or
whether he' served with, or under or aided the enemy. He shall also direct the board to record
their opinion in the case of a returned prisoner of war, whether he returned as soon as possible to
the service, and in the case of a prisoner of war still absent whether he failed to return to the
service when it was possible for him to do so. The authority who assembled the board shall also
record his own opinion on these points. In other cases the board shall give no opinion on the
conduct of any person unless so directed by the authority who assembled the board.
 (14) The members of the board shall not be sworn or required to affirm, but when the board, is a
board of inquiry on a recovered prisoner of war, the members shall make the following
declaration ; I, A B, do declare upon my honour that I will dully and impartially inquire into and
give my opinions as to the circumstances in which………….. become a prisoner of war.
according to the true spirit and meaning of the regulations for the navy on this subject; and I do
further declare, upon my honour, that I will riot on any account, or at any time, disclose or
discover my own vote or opinion, or that of any particular member of the board, unless required
to do so by competent authority."

(15) (a) Save in the case of a prisoner of war who is still absent whenever any inquiry affects the
character or professional reputation of a person subject to the ordinance, full opportunity shall be
afforded to that person of being present throughout the inquiry, and of making any statement and
of giving any evidence he may wish to make or give, and of cross-examining any witness whose
evidence in his opinion affects his character or professional reputation, and of producing any
witnesses in defence of his character or professional reputation.

(b) If after hearing the evidence, the board are of the opinion: that blame attaches any person
subject to the Ordinance. The board shall inform such person accordingly and draw his
attention to the particular evidence on which such opinion is based and shall ask him if he
desires any further-evidence to be taken or has any further statement to make. Any such
further statement or evidence shall be taken down and any point brought to light shall be
investigated

(c) If the board finally attributes blame to any person subject to the ordinance, the
assembling authority shall forward a copy of the proceedings to person concerned, inviting
him 1io make a statement giving reasons why he should not be found to blame. This
statement shall be attached to proceeding.

(16) A board of inquiry shall keep a record of its proceedings which shall be authenticated
by the signature of the president and members of the board. Any member who is unable to agree
with any finding of fact or recommendation arrived at by other members may write his note of
dissent which shall be attached do the proceedings and shall be forwarded by the president to the
authority who assembled the board

(17) The board may be re-assembled as often as the assembling authority directs, for the
purpose of recording additional evidence or for reconsideration of their finding.

(18) The proceedings of a board of inquiry, or any confession, statement or answer to a

question made or given at a board of inquiry, shall not be admissible in evidence against a person
subject to the ordinance, nor shall any evidence respecting the proceedings of the board be given
against any such person except upon the trial of such person for wilfully giving false evidence
before that board.
 (19) The proceedings of a board of inquiry are privileged. These proceedings or any extract
there from, are not lo be disclosed to members to the: public, local authorities, the civil police or
any Government or civil department, except with the permission of the Chief of Naval Staff or
the Government.

(20) Any person subject to the Ordinance who is tried by court martial in respect of any
matter or thing which has been reported on by a board of inquiry, and, unless the Chief of Naval
Staff sees reason to order. otherwise, any person so subject whose character or service reputation
is, in the opinion of the Chief of Naval Staff affected by anything in the evidence before, or in the
report of a board of inquiry, shall be entitled free of charge of a copy of the proceeding; the
board, including any report made by the board, the remarks of the assembling authority and of the
superior authority (if any).

NOTE

1. For disqualification of members of boards of inquiry for serving on subsequent court, martial,
see rule 133(2)(c). As to privilege of witnesses see sections 122 to 132, Evidence Act.

2. A board of inquiry has no power to compel the attendance of civilian witnesses

3. Sub-rule(2).-The commanding officer or the Administrative Authority convening a board

of inquiry is to forward a copy of the convening order to his superior authority, who is to ensure
that the report is finalised within the shortest possible time. Unless other wise directed, such a
report is to be submitted within seven days from the date of commencement of inql1iry. It Cannot
be so finalised, a time is to be requested in writing room the convening authority, giving reasons
thereof

4. Sub-rule (7).-The proceedings are to be taken down in long-.hand by one of the members
of the Board. A - short-hand writer is not to bee employed unless so directed in the convening
order. Additional copies of he Proceedings etc, may be typed from the long-hand record prepared
during the recording of statements.

5. Sub-rule (9).-It is to be noted that any objection to the president or other members, must
be referred to the authority who assembled the board. The board, unlike a court-martial, is not
competent to give a decision on an objection as to its members.

6. Sub-rule (10)-

(a) The evidence of a witness is to be recorded in a narrative form excluding questions put
to him: The statement of such witness is to be commenced on a new page. Questions may be
put to it witness to elucidate any point in his statement or to elicit any additional information
required but such questions are not to be included in the statement. Only facts relevant to the
case are to be recorded.
 (b) The statement of each witness is to be read over to him at the conclusion of his evidence
and signed by him and countersigned by the president of the board. If a witness does not
understand English, his statement after being recorded in English, is to be translated into
Bengali fact recorded the in the president

7. Sub-rule (13).-See sections 86 and 88 (read with rule 284) which empower the Chief of
Naval Staff to order that the whole or any part of the pay and allowances of a prisoner of war may
be withheld pending the result of an inquiry into his conduct, and to make proper provision for
the dependants of any such person.

8. Sub-rule (15).-The provision of this sub-rule are mandatory and should on no account be
violated, as it is contrary to all principles of justice to condemn a Person without giving him full
opportunity of defending himself Whenever therefore, it appears possible that the character and
professional reputation of a person subject to the Ordinance may be affected as a result of the
board of inquiry, the authority who assembled the board must take all necessary steps to secure
that the provisions of this sub-rule are observed. The ultimate responsibility of ensuring that they
are observed in every case will, however, rest upon the president of the board, and should it
transpire during the sitting of the board that the character or professional' reputation of any such
person is affected by the evidence put forward, the president should immediately arrange for such
person to be afforded the full facilities of the rules adjourning, the board if necessary for the
purpose or securing his attendance.

9. Sub-rule (16). The board is to submit its report in four parts-

Part I.-Summary of the case

Part II.-Findings

Part III.-Recommendations

Part IV.-Proceedings-(containing statements of witnesses, exhibits and other evidence

collected)
Parts I, II and III of the report are to be signed by the president and members of the board
10. Sub-rule (18).-A statement by a witness at a board of inquiry may be used under
section 145 of the Evidence Act, for the purpose of cross examining the witness, if it is
inconsistent with the statement made by the witness in the court.
 11. Sub-rule (20).-A copy of the board's proceedings may normally be supplied, on
demand, to a person who is to be tried by a court-martial, in respect of any matter or things which
has been reported on by a board of inquiry, Similarly, any person subject to the Ordinance whose
character or service reputation is affected by anything in the evidence before, or in the report of a
board of inquiry is entitled to a copy free of charge. The word unless the chief of naval staff sees
reason to order otherwise imply that the Chief of Naval staff has the direction in either of the
above eventualities, to withhold permission to grant a copy

259. Board of inquiry as to illegal absence – (1) When any person subject to the
Ordinance has been absent from his duty without due authority for a period of thirty days, the
commanding officer shall, as early as possible, assemble a board of inquiry, such board shall an
oath or affirmation, duly administered. 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. If satisfied of the fact that such
absence was without due authority other sufficient cause, the board shall I declare such a person
or to be a deserter and record the date of desertion and the said deficiency, if any.

(2) A board of inquiry under this rule shall, when assembled require the I attendance of such
witnesses as they think sufficient to prove the absence and other facts specified in sub-rule(1) .

(3) The board shall take down the evidence given before them in writing and at the end of the
proceedings shall make a declaration of the conclusions at which they have arrived in respect of
the facts they were assembled t5o inquire into.

(4) The board of inquiry shall examine all witnesses who may be desirous of coming forward
on behalf of the absentee and shall such questions to them as may be desirable for testing the truth
or accuracy of any evidence they have given, and otherwise for eliciting the truth, and the board
in making their declaration shall give due weight to the evidence of all such witness.

(5) The board shall administer the same oath or affirmation to the witness as if the board were
a court-martial but the members of such board shall not themselves be sworn or affirmed.

(6) The commanding officer shall have an entry made against the name of such a deserter in
the ship's books in terms of the declaration of the board of inquiry and authorize the discharge of
such a sailor from the ship's books to the books of the depot The deserter's service documents and
the original proceedings and declaration of the board are also to be forwarded to the depot for
retention In the case of an officer, he is to be struck off the ship's books the original proceedings
etc. being forwarded to Naval Headquarters for retention. The proceedings shall, on such a
deserter surrendering or being apprehended, be admissible in evidence at his trial by a naval
tribunal.

NOTE

1. The period of thirty days may be reduced at the discretion of the commanding officer to
seven days if the ship is likely to be away from the port for any considerable period, see rule 60
(6)

2. In the event of a person subject to the Ordinance being absent without leave for a period of 30
clear days, a board of inquiry must be assembled at once unless before such board has been
assembled it has come to the knowledge of the man's commanding officer that he has been
apprehended or has surrendered. In that case no board of inquiry is to be held and the facts of his
absence and of deficiency (if any) of his clothing, etc .found to be deficient

3. Before declaring any deficiency of arms, etc., the board will satisfy themselves by
evidence that the absentee was in possession of the missing articles within a reasonable period
before the date of absenting him1self. The board should record the values of the unexpired wear
of all articles of the property of the Government including arms, equipments public clothing, etc.,
found to be deficient.

4. The property of the Government entrusted to his care.-i.e. property of the Government
issued to him for his use or entrusted to his care for naval purposes or public money or stores on
his charge. The board may also investigate into any deficiency in non-public money or stores on
his charge.

5. The declaration of the board should contain the date and place from which the man
absented himself, the date of the deficiency (if any) of clothing, etc., and the place where it
occurred. Before arriving at deficiency in stores, the board is to collect evidence:

(a) That the absentee has been at some time previously in possession of a complete kit, or, at
any rate, of the articles alleged to be leficient;

(b) That an inventory of his kit has been taken, and at the asking of the inventory certain
specified articles were deficient

(c) that none of the articles have since been recovered (any articles recovered will, of
course, be committed).

6. Under this rule the witnesses are sworn, but not the members of the board.
 7. In order to make the record admissible in evidence it must be a record in the books of
the ship to which the man belonged at the time and signed by the commanding officer or by the
officer whose duty it is to make such record;-section 120 (3). The record of the board's finding
will be admissible notwithstanding that the man had already surrendered or been apprehended
provided that such surrender or apprehension had not come to the knowledge of the commanding
officer when the board assembled.

8. As soon as the declaration of illegal absence has been made and recorded in the ship’s
books, the man is struck off the books of the ship and his name transferred to the books of the
depot. He, however, remains subject to the Ordinance for the purposes of any subsequent trial by
a naval tribunal

9. When a man who has been "struck off" as a deserter, rejoins. The commanding officer if
satisfied the summary trial that the evidence does not justify a charge of desertion, may amend
the charge as to one of absence without leave

10. As to the disposal of a deserter's property, see section 164 (in the case of Sailors) and section
168 (in case of officers).

CHAPTER XV
COMMITTEE OF ADJUSTMENT
260. Appointment of committee of adjustment. - A committee of adjustment (hereinafter
referred to as the committee) shall be appointment to deal with the public and private effects of an
officer in any of the following circumstances
(a ) When he dies ;
(b) When he deserts or after an absence of thirty days is so declared by a board of inquiry
assembled under rule 259;
(c) When he is ascertained to be insane; or
(d) being on active service, is officially reported missing.

NOTE

The rules contained in this Chapter are detailed instructions regarding the procedure to be
followed by a committee of adjustment to be appointed in any of the events mentioned in this
rule. These rules must be read with sections 176 to the Ordinance.

261. Officers authorized to appoint a committee of adjustment.-The committee shall be

appointed by the commanding officer of a ship or establishment to which the officer belonged or
Was attached at the time of his death, desertion, illegal absence or insanity.

262. Composition of a committee of adjustment.-The committee shall consist of three

officers. When practicable, the president shall not be below the rank of lieutenant commander
 263. Duties of committee of adjustment. The committee shall immediately on appointment,
or as soon thereafter as practicable.
(a) Collect and arrange for the safe custody of all moveable property (including cash)
and other effects of the deceased that may be found in the ship or shore establishment,

(b) Collect all items of service equipment, official publications or any other public property
that may be found in quarters or amongst the effects of the deceased.

(c) Ascertain and draw pay and allowances, if any, due to the deceased.

(d) Ascertain if the deceased has left any money in any bank or institution receiving deposits
in money.

(e) Ascertain if the deceased has left any will or other document of a testamentary nature.

(f) make out an inventory of property taken impossession in accordance with clauses (a) and
(b) and also a statement of account showing debts and credits of the deceased. The
inventory and account shall be prepared in triplicate and shall be dealt with as hereafter
directed.

(g) the committee shall take special care to secure and safeguard small items of intrinsic
and sentimental value, such as orders, decorations and medals, watches, cameras cigarette
cases, lighters, rings, and other such items. These items shall be shown separately in the
inventory.
264. Payment of service and other debts.-(1) The committee shall discharge all service and
other debts in ship or establishment which are proved to their satisfaction and for which funds
available
(2) Expenses of his last illness and funeral shall be payable in preference to all other debts and
liabilities. Other debts shall be payable in the following order:
(a) Service debts;
(b) Servant's wages not exceeding two months' wages to each servants;
(c) Household expenses incurred within a month before the death or after the last issue of pay
to the deceased, which ever is the shorter period;
(d) Other debts in ship or establishment.
(3) The surplus left over shall be remitted to the person’s prescribed under sub-section (6) of
section 168.
265. Sale of effect.-In case the committee decides to sell all or any part of the movable
property of the deceased for the purpose of paying his service or other debts in ship or
establishment the following procedure shall be followed :

(a) The property shall be sold either by private sale or by fair and open auction. Such sale or
auction shall be held in the presence of a member of the committee.
 (b) The committee shall in either case furnish a statement giving the particulars of the sale or
auction together with a certificate that the sale or auction has been carried out in a manner
most advantageous to the estate. Such statement shall be attached to the inventory.

(c) The amount produced by sale shall be carried to the credit of the account.

(d) Items of intrinsic or sentimental value such as orders, deco rations and medals, watches,
cameras, cigarette cases, lighters, and other such items shall be sold

266. Procedure where the next of kin gives security for payment of debts under section
168 (2).-When the committee withdraws from interference in relation to the property of the'
deceased, in consequence of the representative of the deceased, or his widow' or next of kin
giving security for the payment of service and other debts in ship or establishment of the
deceased, the committee shall forthwith forward, together with inventory an account, a report of
the facts and circumstances to Naval Headquarters.

267. Disposal of inventory and accounts.-The original and duplicate copy of the inventory
and statement of account prepared in accordance with clause (f) of rule 263 shall be forwarded to
Naval Headquarters with the utmost dispatch. The triplicate copy shall be retained by the
authority which appointed the committee.

268. Procedure where deceased left will or any other document of a testamentary
nature. Where the deceased has left a will or any other document of a testamentary nature a
complete and authenticated copy of such will or other document shall be attached to the
inventory. The original shall be handed over to the commanding officer for safe custody.
269. Publication of notice by the prescribed person.-(I)The notice required to be published
under clause (2) of section 169 shall be in the form set out in the Seventh Appendix to these rules
with such variations as may be considered necessary.

(2) The notice shall be published in the official Gazette and in two leading Bengali dailies the
province in which the decease ordinarily resided.

270. Committee of adjustment in cases of desertion or illegal absence.-In case of desertion

or' illegal absence of an officer, the committee shall be composed and appointed in the like
manner as in respective cases of death. The foregoing rules relating to the committee of
adjustment in cases of death, shall so far as they can be made applicable, apply to such cases.

271. Application of sale proceeds for settlement of service and other debts.- The
proceeds of the sale of the effects of the deserter and the pay and allowances drawn by the
committee under clause (a) of sub-section (1) of section 168 shall be applied, so far as they
extend, for the purpose and in the order following that is to say :

(a) In payment of any debt to the State on account of articles of public property made away
with, or otherwise lost on desertion, and for any other debt that may be due to the public.

(b) In payment of satisfaction of such other debt or liabilities of or claims against -the
deserter as the person prescribed under sub-section

(7) of section 168 may think fit to allow, including any claims arising out of any criminal or
wrongful act of the deserter

272. Repayment of residue to the deserter on surrendering or apprehension.-In case the

deserter surrenders or is apprehended within three years from the date of desertion any balance
left after the settlement of claims which may have been payable under rule 271 may be repaid to
him.

273. Lunatics.-(l) In cases of insanity, the committee shall be composed end appointed in the
like manner as, in the respective cases of death.

(2) The foregoing rules relating to the respective case of death shall be applied in a case of
insanity except, that whenever possible the sale of effects shall be deferred until he is removed
from the active list and further that the committee shall forthwith remit the surplus remaining in
their hands to the person prescribed under sub..; section (6) of section 168.

(3) Person prescribed under sub-Section (6) of section 168 shall with all convenient speed
apply the surplus for the benefit of the officer to whom it belongs in such manner as he in his
discretion thinks fit.

274. The manner of ascertaining the insanity of an officer.- (1) The manner in which it
shall be ascertained that an officer is insane shall be the finding of a board of officers composed
of five officers of which two shall be officers of the medical branch and three of any other
branch. Provided that five officers are not, having due regard to the exigencies of service, readily
available, the board may consist of one officer of the medical branch and two officers of any
other branch
 (2). The finding of the board shall be the finding of the majority of members constituting the
board.

(3) The board shall be constituted I by order of the Chief of Naval Staff.

275. Committee of adjustment in cases of an officer who being on active service is

reported missing. - In case of an officer who being on active service is officially reported
missing the committee shall be appointed in the like manner as in the case of death. The,
foregoing rules relating to the committee of adjustment in case of death shall so far as they can be
made applicable apply to such cases

276. The manner of ascertaining insanity or a person subject to the Ordinance other
then an officer.-(l). The manner in which it shall be ascertained that a person subject to the
Ordinance other than an officer, is insane, shall be the finding of a board of officers consisting of
three officers of whom one shall be an officer of the medical branch.

(2) The finding of the board shall be the finding of the majority of members constituting the
board.

(3) The board shall be constituted by the commanding officer of the ship or establishment to
which the insane person belonged or any superior authority.

General Provisions
277. Disposal of medals and decorations.-rightrightThe order, decorations and medals of
an officer. or subordinate officer, or sailor during in the service whether issued before or after his
death, shall be disposed (If as follows :

(a) If there is a will they shall be sent to the person who in the opinion of the commanding
officer, in case of sailor and the committee of adjustment, in case of officers, is named in the
will as being intended to receive them, or is a general or residuary legatee of the estate.

(b) In default of a subject to any such testamentary disposition, they shall be sent to the next
of kin in the following order of relationship:
widow,
eldest surviving son,
 eldest surviving daughter,
father,
mother,
eldest surviving brother,
eldest surviving sister,
eldest surviving half-brother,
eldest surviving ,half-sister,
or any relative or interested party who in the opinion of the Chief of Naval Staff will
preserve them with due care as a memorial of the deceased.

278. Appointment of standing committee of adjustment: (1)The naval officer commanding

the force in any area of operations may appoint a standing committee of adjustment at the base, or
other convenient locality, within the area of operations to deal with the effects of any officer who
dies or deserts while on active service

(2) The rules relating to the appointment, composition, powers and duties of the committee of
adjustment shall apply to any standing committee of adjustment appointed under this rule

(3) Any standing committee appointed under this rule may, at any time, be dissolved by the
naval officer. commanding the force, or it may be removed to and act in any place outside the
area of operations as may be convenient, and in that case the Chief of Naval Staff, or an officer
nominated by him, shall exercise the functions of appointment of additional or future members of
such standing committee, or of its dissolution, instead or the naval officer commanding the force,
by whom it was appointed.

CHAPTER XVI

PRESCRIBED-OFFICERS, AUTHORITIFS AND

OTHER MATTERS

279. Prescribed officer under section 20 of the Ordinance.-The prescribed officer for the
purpose of section 20 of the Ordinance shall be the Drafting Authority.
 280. Prescribed deductions under section 22.-ln addition to the deductions specified in
section 82 the following deductions may be made from the pay and allowances' of a person
subject to the Ordinance-

(a) Any sum required by order of Government in case of an officer, or the Chief of Naval Staff in
case of a Sailor, to meet any public or service claim that may be outstanding against such a
person, or any service debt that may be due from him. .

(b) Any sum required to meet compulsory contributions to any Provident Fund or any Benevolent
or other Fund which may be approved by the Government:
.

Provided that the total deductions from the pay and allowances of a person under clause (a): shall
not exceed in anyone month one half of his pay and allowances for that month.

Explanation.-The expression "public claim" means any public debt or disallowance including
any over-issue made through an error as to the facts; or a deficiency or irregular expenditure of
public money or store of which, after due investigation, no explanation satisfactory to the
authority empowered to order deductions under clause (a) is given by the person concerned.

281. Prescribed officers under section 82.-(1) The prescribed medical' officer for the
purpose of clause (c) of section 82 shall be the officer or person in-charge of the hospital to which
the officer or Sailor is admitted. The Administrative Authority, under those command such, a
Sailor is serving, shall be the prescribed authority for accepting such a medical certificate.

(2) The prescribed officer under clauses (d) and (e) of section 82 shall be in case of an officer,
the Administrative Authority, and in the case of a Sailor the commanding officer.

282. Prescribed officer under section 84.-The prescribed officer for the purpose of section
84 shall be, in the case of an officer, the Chief of Naval Staff, and, in the case of a person other
than an officer, the officer empowered to convene a court-martial for his trial.

283. Prescribed authority under section 87.-Any, deduction from the pay and allowances of
a person subject to the Ordinance may be remitted as hereinafter provided:-.
 (a) Any penal deduction from the pay and allowances of any such person may be remitted by
the Government.

(b) The commanding officer of any such person, other than an officer who has been absent
without leave for a period not exceeding five days, may, unless the person is convicted by
naval tribunal on a charge for such absence, remit the forfeiture of pay and allowances to
which that absence renders him liable.

284. Prescribed authority under section 88.-The prescribed authority for the purpose of
section 88 shall be the Chief of Naval Staff.

285. Prescribed officer under section 97.-The prescribed officer for the purpose of sub-
section (I) of section 97 shall be the Administrative Authority

286. Prescribed authority under section 107. - The prescribed naval authority for the
purposes of section 107 shall be the Administrative Authority under whose command the accused
the person is serving of any superior authority, provided that, in cases where death has resulted,
the prescribed authority shall be the Chief of Naval Staff and no lower authority.

287. Prescribed manner for the custody of an insane accused and under section 12 (4).-
For the purpose of sub-section (4) of section 123, the manner in which an accused person sha1l be
kept in custody shall be such as may in the opinion of the proper naval authority, be best
calculated to keep him securely without unnecessary harshness.

288. Prescribed officer under section 143. - The prescribed officer under section 143, for the
purpose of directing whether the sentence shall be carried out by confinement in a civil prison or
by confinement in a military, naval or air force prison shall be the confirming officer or any
higher authority.

289. Prescribed person under sections 164, 165 and 168.(1) The prescribed person for the
purposes of clauses (5) and (6) of section 164 and su1Hections (6), (7) and (8) of section 168
shall be the Chief of Naval Staff or any person authorized by him in this behalf.
 (2) The prescribed person for the purpose of section 165 shall be the Chief of Naval Staff or
any person authorized by him in this behalf and shall, so long as the commanding officer has
under the Ordinance control of the property of the deceased person or lunatic, include such
commanding officer.

290. Prescribed limit for collecting moneys left by a deceased in bank, as provided by
section 168 (3).-A committee of adjustment shall not, without the concurrence in writing of the
Chief of Naval Staff or any person authorized by him in this behalf collect moneys lying to the
credit of a deceased officer, whether in one or more banks exceeding in the aggregate the sum of
taka two thousand and five hundred.

291. Prescribed person under section 170.-The prescribed person for the purpose of section
170 shall be the Chief of Naval Staff or any person authorized by him in this behalf and shall, so
long as the committee has under the Ordinance control of the property of the deceased person or
lunatic or of the proceeds of sale of such property, include the president of such committee.

292. Prescribed conditions under section 4 (XXVII) of the Ordinance. (I) Officer of the
Bangladesh Army or the Bangladesh Air force shall be officer within the meaning of clause
(XXVII) of section 4 of the Ordinance, when commanding any unit or establishment of the
Bangladesh Army, the Bangladesh Navy or the Bangladesh Air Force of the Inter Services
Organisation in which persons subject to the Ordinance are serving or posted as Intentioned
below shall exercise the same powers under the Ordinance exercisable by an officer of the
relative rank of the Bangladesh Navy:

(a) When conveyed on board a troop-ship or merchant vessel together with the personnel
of th0Bangiadesh Army or the Bangladesh Air Force;

(b) When posted to a unit or establishment of the Bangladesh Army, the Bangladesh Air force
or of the Inter Services Organisation;

(c) When admitted as patients in a hospital or other medical establishment of the Bangladesh
Army or the Bangladesh Air force;

(d) When serving a sentence of imprisonment or detention or when kept in custody in a unit
or establishment of the Bangladesh Army or (he Bangladesh Ail Force.
 (2) The relative rank of the Army, Navy and Air force officers for the purpose of this rule
shall be as follows, namely:-

Army Navy Air force

Second Midshipman Pilot
Lieutenant Cadet Officer
Lieutenant Sub Lieutenant Flying
Officer
Captain Lieutenant Flight
Lieutenant
Major Lieutenant Squadron
Commander Leader
Lieutenant Commander Wing
Colonel Commander
Colonel Captain Group
Captain
Brigadier Commodore Air
Commodore
Major General Rear Admiral Air Vice
Marshal
Lieutenant Vice Admiral Air Marshal
General
General Admiral Air Chief
Marshal

.
 THE OFFICIAL SECRETS ACT, 1923

ACT No. XIX OF 1923

An Act to consolidate and amend the law in Bangladesh relating to

Official secrets

3 * * * * * * * *

Preamble.-WHEREAS it is expedient that the law relating to official secrets in 2Bangladesh

should be consolidated and amended;

It is hereby enacted as follows:

1. Short title, extent and application.--(1) This Act may be called the Official secrets Act,
1923.

(2) It extends to the whole of Bangladesh and applies also to all citizen of Bangladesh and
persons in the service of lithe Republic wherever they may be.

1. For Statement of Objects and Reasons, see Gazette of India. 1922" Pt. V, p, 210; and for Report of Select
Committee, see ibid., 1923; Pt, V. p, 61.

For temporary amendment of this Act during the continuance of war and for a period of six months thereafter see s.
6 of the Defence of India Act, 1939 (XXXV of 1939), since expired.

For notification of Procedure provided under this Act, see the Enemy Agents Ordinance, 1943 (I of 1943),

2. Subs. by Act VITI of 1973 as amended by Act LIII of 1974, For "Pakistan" (w.e.f. the 26th March, 1971).
 3. The first and second paragraphs of the Preamble were omitted. ibid

4. The word "Indian" omitted by the Federal. Laws (Revision and Declaration) Act, 1951 (XXVI of 1951). s. 3 and
II Sch.

5. Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960), s. 3 and 2nd Sch. w.e.f. the 14th
October; 1955), for sub-section (2) as amended by A.O., 1937, A.O., 1949 and the Federal Laws (Revision and
Declaration) Act, 1951 (XXVI of 1951).

6. Subs. by Act VIII of 1973 as amended by Act Lm of 1974. for "Government" (w.e.f. the 26th March, 1971).

2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,-

(1) any reference to a place belonging to Government includes a place occupied by any
department of the Government, whether the place is or is not actually vested 1 in Government;
2.*
* * * *

(2) expressions referring to communicating or receiving include any communicating or

receiving, whether in whole, or in part and whether the sketch, plan, model, article, note docu-
ment, or information itself or the substance, effect or description thereof only be communicated
or received; expressions referring to obtaining any sketch, plan, model. article, note or document,
include the copying or causing to be copied of the whole or any part of any sketch, plan, model,
article, note, or document; and expressions referring to the communication of any sketch, plan
model, article, note or document include the transfer or transmission of the sketch, plan, model,
article, note or document;

3.
* * * *

1. Subs. By A.O. and sch., for “his Majesty” (w.e.f. the 23rd March, 1956).

2. CI.
 (6) "Office under 1Government" includes any office, or employment in or under any
department of the Government;

(7) "photograph" includes an undevelopment film or plate;

(8) "Prohibited place" means

(a) any work of defence, arsenal, naval, military or air force, establishment or station, mine,
minefield, camp, ship or air craft belonging to, or occupied by or on behalf of, Government,
any military telegraph or telephone so belonging or occupied' any wireless or signal station or
office so belonging or occupied and any factory, dockyard or other place so belonging or
occupied and used for the purpose of building, repairing; making or storing any munition of
war, or any sketches' plans models or documents relating thereto, or for the purpose of getting
any metals, oil, or minerals of use in time of war;

(b) any place not belonging to Government where any :munition of war or any sketches,
models, plans or documents relating (hereto, are being made, repaired, gotten or stored under
contract with, or with any person on behalf of Government, or otherwise on behalf of 1
Government;
(c) any place belonging to or used for the purpose of Government which is for the time being
declared by the 3Govern merit, by 4notification in the 50fficial Gazette;, to be a prohibited
place for the purposes of this Act on the ground that information with respect thereto, or
damage thereto 'would' be useful to an enemy, and to which a copy of the 4notification in
respect thereof has been affixed in English and in BengaIi ;

(d) any railway, road, way or channel, or other means of communication by land or water
(including any works or structures
1. Subs. by A.O., 1961, Art. 2 and Sch., for "His Majesty" (w.e.f. the 23rd March, 1956).

2. The words "or of the Government of United Kingdom or of any British possession" omitted, ibid. (w.e.f. the
23rd March, 1956).

3. Subs. by Act VIII of 1973 as amended by Act LIII of 1974, for "appropriate Government" (w.e.f. the 26th
March, 1971).

4. For such notify., see Gaz. of .P., 1957, Ext. p. 1172; ibid., 1959, .Pt. I. p, 518 and ibid., 1960, .Pt I. p. 520.

5. Subs. by A.O., 1937, for "Gazette of India".

6. Subs, by Act VIII of 1973 as amended by Act LIII of 1974, for the vernacular of the locality" (w.e,f. the 26th
March, 1971);

being part thereof or connected therewith) or any place used for gas, water or electricity
works or other works for purpose, of a public character, or any place where any munitions of
 war or any sketches, models plans or documents relating thereto, are being made, repaired or
stored otherwise than on behalf of Government, which is for the time being declared, by the
Government,by notification in the 40fficial Gazette to be a prohibited place for the purposes
of this Act on the ground that information with respect thereto, or the destruction or
obstruction thereof, or interference therewith would be useful to an enemy, and to which a
copy of the notification in respect thereof has been affixed in English and in 5Bengali 6[:]

6
Provided that where for declaring a prohibited place under sub rule (c) or sub-clause (d) a
notification in the official Gazette is not considered desirable in the interest of the security of the
State, such declaration may be made by an order, a copy or notice of which shall be prominently
displayed at the point of entry to, or at a conspicuous place near, prohibited place.

(9) "sketch" includes any photograph or other mode of representing any place or thing; and

(10) "Superintendent of police" includes any police officer of a like or superior rank and any
person upon whom the powers of a superintendent of police are for the purpose of this act
conferred by the Government,

(3) Penalties for spying.-(I) If any person for any purpose prejudicial to the safety or
interests of the State
(a) approaches inspects, passes over or is in the vicinity of, or enters, any prohibited place;
or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is
intended to be, directly or indirectly, useful to an enemy; or

(c) obtains, collects, records or publishes or communicates to an y other person any secret
official code or password,. or any sketch , plan, model, article or note or other document or
information which is calculated to be or might be or is intended to be, directly or indirectly,
useful to an enemy; he shall be [guilty of an offence under this section.]

1. Subs. by A.O., 1961, Art. 2, for "His Majesty" (w.e.f. the 23rd March, 1956).

2. For such declaration see Gaz. of P., 1955, Pt. J, p. 43 and 383: and ibid., 1958, Pt. I, p. 1470.

3. Subs. by Act VIII of 1973 as amended by Act LIII of 1974, for appropriate Government" (w.e.f. the 26th March,
1971).
4. Subs. by A.O., 1937, for "Gazette of India".

5. Subs by Act VITI of 1973 as amended by Act UII of 1974, for" the vernacular of the locality" (w.e.f. the 26th March,
1971).

6. The colon was subs. for the semi-colon at the end to sub-clause (d) and there after a new proviso was inserted by Act
VIII of 1966, s.7.

7. The words "or by any L.G," omitted, ibid.

8. Subs ibid., s.3 for certain words.

(2) On a prosecution for an offence punishable under this section with imprisonment for a
term which may extend to fourteen years, it shall not be necessary to show that the accused
person was guilty of any particular act tending to show a purpose prejudicial to the safety or
interests of the State, and, notwithstanding that no such act is proved against him, he may be
convicted if, from the circumstances of the case or his conduct or his known character as proved,
it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if
any sketch, plan, model, article, note, document, or information relating to or used in any
prohibited place, or relating to anything in such a place or any secret official code or password is
made, obtained collected, recorded, published or communicated by any person other than a
person acting under lawful authority, and from the circumstances of the case or his conduct or his
known character as proved it appears that his purpose was a purpose prejudicial to the safety or
interests of the State, such sketch, plan, model, article, note, document or information shall be
presumed to have been made, obtained, collected, recorded, published or communicated for a
purpose prejudicial to the safety or interests of the State.

(3) A person guilty of an offence under this section shall be punishable:

(a) where the offence committed is intended or calculated to be, directly or indirectly, in the
interest or for the benefit of a foreign power, or is in relation to any work of defence arsenal,
naval, military or air force establishment or station, mine, minefield, factory, dockyard,
camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of
 2
Bangladesh, or in relation to any secret official code, 3with death, or with imprisonment for
term which may extended to 14 years; and

(b) in any other case, with imprisonment for a term which may extend to 3 years.

4
3A. Restriction against photographs, sketches, etc. of prohibited and notified areas.-(l)
No person shall, except under the authority of a written permit granted by or on behalf of the
Government, make any photograph, sketch, plan, model, note or representation of any kind any
prohibited place or of any other place or area notified by the Government as a place or area with
regard to which such restriction appears to that Government to be expedient in the interests of the
security of Bangladesh, or of any part of or object in any such place or area.
(2) The Government may by general or special order make provision for securing that no
photograph, sketch plan, model. note, or representation of any kind made under the authority of a
permit granted in pursuance of subsection (1) shall be published unless and until the same has
been submitted to and approved by such authority or person as may be specified in the order, and
may retain or destroy or otherwise dispose of anything so submitted.

(3) If any person contravenes any of the provisions of this section; he shall be punished with
imprisonment for a term which may extend to three years or with fine or with both.

1* * *

4. Communications with foreign agents to evidence of commission of certain offences.-(l)

In any proceedings against a person for an offence under section 3, the fact that he has been in
communication with, or attempted to communicate with, a foreign agent, whether within or
without 2Bangladesh, shall be relevant for the purpose of proving that he has, for a purpose
prejudicial to the safety or interests of the State, obtained or attempted to obtain information
which is calculated to be or might be, or is intended to be, directly or indirectly, useful to an
enemy.

(2) For the purpose of this section, but without prejudice to the generality of the foregoing
provision,-

(a) a person may be presumed to have been in communication with a foreign I agent if
 (i) he has, either within or without Bangladesh, visited the address of a foreign agent or
consorted or associated with a foreign agent, or
(ii) either within or without 2Bangladesh, the name or address of or any other information
regarding, a foreign agent has been found in his possession or has been obtained by him
from any other person;

__________________________________________________________

1. Sub-section (4) omitted by Act, VIII of 1973 as amended by Act of 1974 (w.e.f. the 26th March, 1971).

2. Sub. ibid.., for "Pakistan" (w.ef. the March, 1971).

(b) the expression "foreign agent" includes any person who is or as been or in respect of whom it
appears that there are reasonable grounds for suspecting him of being or having been employed
by a foreign power, either directly or indirectly, for the purpose of committing an act, either
within or outside Bangladesh. Prejudicial to the safety or interests of the State, or who has or is
reasonably suspected of having, either within or outside Bangladesh committed, or attempted to
commit, such an act in the interests of a foreign power;

(c) any address, whether within or 'outside 1Bangladesh in respect of which it appears that there
are reasonable :grounds; for suspecting it of being an address used for the receipt of
communications intended for a foreign agent, or any address at which a foreign agent resides, or
to which he resorts for the purpose of giving or receiving communications, or at which he carries
on any business, may be presumed to be the address or a foreign agent, and communications
addressed to such an address to be communications with a foreign agent.

5. Wrongful communication, etc. of information.-(l) If any person having in his possession

or control any secret official code or password or any sketch, plan, model, article, note,
document or information which relates to or is used in a prohibited place or relates to anything in
such a place or which has been made or obtained in contravention of this Act, or which has been
entrusted in confidence to him by any person holding office under 2Government or which he has
obtained or to which he has had access owing to his position as a person who holds or has held
officer under 2GoveJDment, or as a person who holds or has held a contract made on behalf or
Government, or as a person who is or has been employed under a person who holds or has held
such an office or contract-

(a) wilfully communicates the code or password, sketch, plan, model, article, note, document
or information to any person other than a person to whom he is authorized to communicate it,
or a Court of Justice or' a person to whom it is, in the interests of the State, his duty to
communicate it ; or
__________________________________________________________
1. Subs. by Act VIII of 1973 as amended by Act LIII of 1974, for "Pakistan" (w.e.f. the 26th
March, 1971).

2. Subs. by A.O., 1961, Art. 2 for "His Majesty" (w.e.f. the 23rd March, 1956).

(b) uses the information in his possession for the benefit of any foreign power or in any other
manner prejudicial to the safety of the 'State' or

(c) retains the sketch, plan, model; article, note or document in his possession or control when
he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to
comply with all directions issued by lawful authority with regard to the return or disposal
thereof; or

(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of, the
sketch, plan, model, article, note, document, secret official code or password or information

The shall be guilty of an offence under this section.

(2) It any person voluntarily receives any secret official code or password or any sketch, plan,
model, article, note, document or information knowing or having reasonable ground to believe, at
the time when he receives it, that the code, password, sketch, plan, model, article, note, document
or information is communicated in contravention of this Act, he shall be guilty of an offence
under this section.

1
(3) A person guilty of an offence under this section shall be punishable:--

(a) where the offence committed is a contravention of clause (a) of sub-section (I) and intended or
calculated to be, directly or indirectly, in the interest or for the benefit of a foreign power, or is in
relation to any work of defence, arsenal, naval, military or air force establishment or station,
mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval,
military or air force affairs of 2Bangladesh or in relation to any secret official code, 3with death
or with imprisonment of a term which may extend to fourteen, years; and

(b) in any other case, with imprisonment for a term which may extend to two years, or with ,fine
or with both.
__________________________________________________________

1. Sub-section (3) was subs. by Act VIII of 1966, s.4, for sub-sections (3) and (4).

2. Subs. by Act VIII of 1973 as amended by Act LIII of 1974, for "Pakistan" (w.e.f. the 26th March, 1971).

3. Ins. by Act VIII of 1968.

6. Unauthorized use of uniforms; falsification of reports forgery, personation, and false

documents.-(l) If any person for the purpose of gaining admission or of assisting any other
person to gain admission to a prohibited place or for any other purpose prejudicial to the safety of
the State-

(a) uses or wears, without lawful authority, any naval, military air force, police or other
official uniform or any uniform so nearly resembling the same as to be calculated to
deceive, or falsely represents himself to be a person who is or has been entitled to use or
wear any such uniform; or

(b) orally, or in writting in any declaration or application, or in any document signed by him
or on his behalf, knowingly makes or connives at the making of any false statement or any
omission; or

(c) forgers alters, or tampers with any passport, or any, naval, military, air force, police, or
official pass, permit certificate licence, or other document of a similar character (herein after
in this section referred to as an official document) or knowingly uses or has in his
prossession any such forged altered, or irregular official document; or

(d) personates, or falsely represents himself to be, a person holding, or in the employment of
a person holding office under 1Government, or to be or not to be a person to whom an
official document or secret official code or password has been duly issued or communicated
or with intent to obtain an official document, secret official code or password, whether for
himself or other any other person, knowingly makes any false statement; or

(e) uses, or has in his possession or under his control, without the authority of the
department of the Government or the authority concerned, any die, seal or stamp of or
belonging to, or used made or provided by, any department of the Government, or by any
diplomatic, naval, military or air force authority appointed by or acting under the authority
of Government, or any die, seal or stamp so nearly resembling any such die, seal or stamp as
to be calculated to deceive, or counter-feits any such die, seal or stamp, or knowingly uses,
 or has in his possession or under his control, any such counterfeited die, seal or stamp, he
shall be guilty of an offence under this section.

_________________________________________________________

1. Subs. A.O. 1961,Art 2, “His Majesty” (with effect from the 3rd March, 1956.

(2) If any person for any purpose prejudicial to the safety of the State-

(a) retains any official document whether or not completed or issued for use, when he has no
right to retain it, or when it is contrary to his duty to retain it, or wilful1y fails to comply
with any directions issued by any department of the Government or any person authorized
by such department with regard to the return or disposal thereof; or
(b) allows any other person to have possession of any official document issued for his use
alone, or communicates any secret official code or password so issued, or without lawful
authority or excuse. has in his possession any official document or secret official code or
password issued for the use of some person other than himself, or, on obtaining possession
of any official document by finding or otherwise, wilfully fails, to restore it to the person or
authority by whom or for whose use it was issued, or to a police officer; or
(c) without lawful authority or excuse, manufactures or sells or has in his possession for
sale, any such die, seal or stamp as aforesaid; he shall be guilty of an offence under this
section.

(3) A person guilty of an offence under this section shall be punishable with imprisonment
for a term which may extend to two years, or with fine, or with both.

(4) The provisions of sub-section (2) of section 3 shall apply, for the purpose of proving a
purpose prejudicial to the safety of the State, to any prosecution for an offence under this section
relating to the naval, military or air force affairs of 1Government, or to any secret official code in
like manner as they apply, for the purpose of Proving a purpose prejudicial to the safety or
interests of the State, to prosecutions for offences punishable under that section with
imprisonment for a term which may extend to fourteen years.

7. Interfering with officers of the police or members of the armed forces of Bangladesh.-
-(l) No person in the vicinity of any prohibited place shall obstruct, knowingly mislead or
otherwise interfere with or impede, any police officer, or any member of 2the armed forces of
3
Bangladesh engaged on guard, sentry, patrol, or other similar duty in relation to the prohibited
place.
 (2) If any person acts in contravention of the provision of this section he shall be punishable
with imprisonment which may extend to two years, or with fine, or with both.

8. Duty-of giving information as to commission of offences.(I) It shall be the duty of every

person to give on demand to a Superintendent of Police or other police officer not below the rank
of Inspector, empowered by 4the Inspector-General of police in a 5metropolitan area, the Police
commissioner6*** in this behalf or to any member of the armed forces of Bangladesh engaged on
guard, sentry, patrol or other similar duty, any information in his power relating to an offence or
suspected offence under section 3 or under section 3 read with section 9 and, if so required and
upon tender of his reasonable expenses, to attend at such reasonable time and place as may be
specified for the purpose of furnishing such information.

(2) If any person fails to give any such information or to, attend as foresaid, he shall be
punishable with imprisonment which may extend to two years, or with fine; or with both.

9. Attempts, incitements etc.-Any person who attempts to commit or abets the commission
of an offence under this Act shall be punishable with the same punishment, and be liable to be
proceeded against in the same manner as if he had committed such offence.

10. Penalty for harbouring spies.-(l) If any person knowingly harbours any person whom he
known or has reasonable grounds for supposing to be a person who is about to commit or who has
committed an offence under section 3 or under section 3 read with section 9 or knowingly permits
to meet or assemble in any premises in his occupation or under his control any such persons, he
shall be guilty of an offence under this section.

__________________________________________________________

1. Subs. by A.O., 1961, Art. 2, for "His Majesty" (w.e.f. the 23rd March, 1956).

2. Subs. ibid, Act. 2 and Sch., for "His Majesty's forces" (w.e.f. the 23rd March, 1956).

3. Subs. by Act. VIII of 1973 as amended by Act LIII of 1974, for "Pakistan" (w.e.f. the 26th March, 1971).

4. Subs. by Ordinance LXIX of 1976, Sch., for "an Inspector General".

5. Subs. by Ordinance XLVIII of 1978, Sch. III (w.e.f. the 25th November, 1979.

6. The words "or Commissioner of Police" omitted by A.D., 1949.

(2) It shall be the duty of every person having harboured any such person as aforesaid or
permitted to meet or assemble in any premises in his occupation or under his control any such
persons as aforesaid, to give on demand to a Superintendent of Police or other police officer not
below the rank of Inspector empowered by 1the Inspector-General of Police or in 2a metropolitan
area the police commissioner3*** in this behalf, any information in his power relating to any such
person or persons, and if any person fails to give any such information, he shall be guilty of an
offence under this section.

(3) A person guilty of an offence under this section shall be punishable with imprisonment for a
term which may extend to one year, or with fine, or with both.

11. Search warrants.- (1) If a Magistrate of the first class or Sub-Divisional Magistrate is
satisfied by information an oath that there is reasonable ground for suspecting that an offence
under this Act has been or is about to be committed, he may grant a search-warrant authorizing
any police officer named therein, not being below the rank of an officer in charge of a police
station, to enter at any time any premises or place named in the warrant, if necessary by force,
and to search the premises or place and every person found therein, and to seize any sketch, plan,
model, article note or document, or anything of a like nature, or anything which is evidence of an
offence under this Act having been or being about to be committed which he may find on the
premises or place or any such person, and with regard to or in connection with which he has
reasonable ground for suspecting that an offence under this Act has been or is about to be
committed.

(2) Where it appears to a police officer, not being below the rank of Superintendent, that the case
is one of great emergency, and that in the interests of the State immediate action is necessary he
may by a written order under his hand give to any police officer the like authority as may be
given by the warrant of a Magistrate under this section.

(3) Where action has been taken by a police officer sub-section (2) he shall, as soon as may be,
report such action to the District or Sub-Divisional Magistrate.

12. Power to arrest. – Notwithstanding anything in the Code of Criminal Procedure, 1898.-

2
* * *

3
(b) an offence under this Act, other than an offence punishable with imprisonment for a
term which may extend to 14 years, shall be a congnizable and bailable offence; and
4
(c) any member of the armed forces of 5Bangladesh may, without an order from a Magistrate
and without a warrant, arrest, in or in the vicinity of a prohibited place, any person who has been
concerned in an offence under section 3, or under section 3 read with section 9, or under clause
(a) or clause (b) of sub-section (1) of section 5. Or under clause (a) or clause (b) of sub-section
(1) of section 6, or against whom a reasonable complaint has been made or credible information
has been received, or a reasonable suspicion exists of his having been so concerned, and shall
without unnecessary delay take or send the person arrested before a Magistrate having
jurisdiction in the case or before an officer in charge of a police-station, and there-upon the
provision of the said Code applicable in respect of a person who, having been arrested without
warrant, has been taken or sent before a Magistrate or before an officer in charge or a police-
station shall apply to him.

13. Restriction on trial of offences.-(l) No Court (other than that of a Magistrate of the first
class specially empowered in this behalf by the Government) which is inferior to that of a District
Magistrate shall try any offence under this Act.

(2) If any person under trial before a Magistrate for an offence under this Act at any time
before a charge is framed claims to be tried by the Court of Session, the Magistrate shall, if he
does not discharge the accused, commit the case for trial by that Court, notwithstanding that it is
not a case exclusively triable by that Court.

(3) No Court shall take cognizance of any offence under this Act unless upon complaint made
by order of, or under authority from, the Government or some officer empowered by the
Government in this behalf:

Provided that a person charged with such an offence may be arrested. or a warrant for his
arrest may be issued and executed, and any such person may be remanded in custody or on bail,
notwithstanding that such complaint has not been made, but no further or other proceedings shall
be taken un till such complaint has been made.

(4) For the purposes of the trial of a person for an offence under this Act, the offence may be
deemed to have been committed either at the place in which the same actually was committed or
at any place in Bangladesh which the offender may be found.

5* * *

6
(6) The Government may if it thinks fit, by general or special

__________________________________________________________
 1. Subs. by Act VIII of 1973 as amended by Act VIII of 1974, for "appropriate Government" (w.e.f. the 26th March,
1971).

2. The words or "Presidency" omitted by A.D. 1949.

3. The words "the L.G." rep. by A.D., 1937.

4. Subs. by Act VIII of 1973 as amended by Act VII of 1974, for

"Pakistan" (w.e.f. the 26th March 1971).

5. Sub-section (5) which was ins. by A.D., 1937, omitted by A.D., 1964, Art, 2 and Sch.

6. Sub-section (6) ins. by the official Secrts (Amdt.) Act, 1952 (XIII of 1952), s.3.

order direct that the procedure for the trial of an offence lunder section 3, or under section 3 read
with section 9 or under clause (a) or clause (b) of sub-section (I) or subsection 5, or under clause
(a) of sub-section (1) of section 6 shall be that prescribed for offences under the Enemy Agents
Ordinance, 1243, or under the 2Criminal Law amendment Act3 1958 (XL of 1958).

14. Exclusion of public from proceeding.-In addition without prejudice to any powers which
a Court may possess to order the exclusion of the public from any proceeding; if in the course of
proceedings before a Court against any person for an offence under this Act or the proceedings on
appeal, or in the course of the trial of a person under this Act, application, is made by the pro-
secution on the ground that the Publication of any evidence to be given or of any statement to be
made in the course of the proceedings would be prejudicial to the safety of the State, that all or
any portion of the public shall by excluded during any part of the hearing, the Court may make an
order to that effect but the passing of sentence shall in any case take' place in public.

15. Offence by companies etc.-Where the person guilt of an offence under this Act is a
company or corporation, every director and officer of the company or corporation with whose
knowledge and consent the offence was committed shall be guilty of the offence.

16 Repeals Rep. by the repealing Act. 1927 (XII of 1927), s. 2 and Schedule.

VISITING FORCE ACT, 1952

15 & 16 GEO. 6 & 1 ELIZ. 2 CH. 67

 An Act to make provision with respect to naval, military and air forces of certain other
countries visiting the United Kingdom, and to provide of the apprehension and disposal of
diserters or absentees without leave in the United Kingdom from the forces of such countries; to
enable corresponding provision to be made in the law of colonies and dependences; and for
purposes connected with the matters aforesaid.

Be it enacted by the Queen's most Excellent Majesty by and, with the advice and consent of
the Lords Spiritual and Temporal and Commons, in this present Parliament assembled and by the
authority of the same, as follows:-

PART 1

VISITING FORCES

1. Countries to which Act applies.-(l) References in this Act to a country to which a

provision of this Act applies are references to-

(a) Canada, Australia, New Zealand, the Union of South Africa, India, Pakistan, Ceylon,
Ghana or the Federation of Malaya, or

(b) any country designated for the purposes of that provision by Order in Council under
the next following sub-section.

(2) When it appears to Her Majesty, as respects any country not mentioned in paragraph (a) of
the foregoing sub-section, that having regard to any arrangements for common defence to which
Her Majesty's Government in the United Kingdom and the Government of that country are for the
time being parties it is expedient that the following provisions of this act, or any of those
provision should have effect in relation to that country, Her Majesty may by Order in Council
designate that country for the purposes of the provisions in question.

(3) Majesty may by Order in Council provide that in so far as this Act has effect in. relation to
any country designated under the last foregoing sub-section it shall have effect subject to such
limitations adaptation or modification as may be specified in the Order.
 (4) No recommendation shall be made to Her Majesty in Council to make an Order the last
foregoing sub-section unless a draft thereof has been laid before Parliament and approved by
resolution of each House of Parliament.

NOTES

1. The Act has been applied to Belgium, France, the Netherlands, Norway and the United
States of America, (S.I. 1954 No. 634), and to Luxembourg, Turkey, Greece, Denmark, Portugal
and Italy (S, I. 1956 No. 2048).

2. The provisions of this Act may by Order in Council be made to apply to the Channel
Islands, the Isle of man, colonies, protectorates, Protected states and trust territories as they apply
to the United kingdom, see section 15.

2. Exercise of powers by service courts and authorities of countries sending visiting

forces.-(l) The service courts and service authorities of a country La which this section applies
may within the United Kingdom, or on board any of Her Majesty's ship or aircraft exercise over
persons subject to their jurisdiction in accordance with this section all such powers as are
exercisable by them accordance La the law of that country,

(2) The persons subject to the jurisdiction of the service courts and service authorities of a
country in accordance with this section are the following, that is to say-

(a) members of any visiting force of that country and

(b) all other persons who being neither citizens of the United Kingdom and Colonies nor
ordinarily resident in the United Kingdom, are for the time being subject to the service law
of that country otherwise than as members of that country's forces:

Provided that for the purposes of this sub-section a persons shall not be treated as a member
of. a visiting force of a country if he became or last became) a member of that country's forces a t
a time when he was in the United kingdom unless it is shown that he then became a member of
those forces with his consent.

(3) Where any sentence has whether of within or outside the United Kingdom, been passed by
a service court of a country to which this section applies upon a person who immediately before
the sentence was passed was subject to the jurisdiction of that court in accordance with section
then for the purposes of any proceeding in a United kingdom court the said service court shall be
deemed to have been properly constituted, and the sentence shall be deemed to be within the
jurisdiction of that court and in accordance with the law of that country and if executed according
to the tenor of the sentence shall be deemed to have been lawfully executed.

(4) Notwithstanding anything in the foregoing provisions of this section, a sentence of death
passed by a service court of a country to which this section applies shall not be carried out in the
United Kingdom unless under United Kingdom law a sentence of death could have passed in a
similar case.

(5) Any person who-

(a) is detained in custody in pursuance of a sentence as respects which sub-section (3) of

this section has effect, or

(b) being subject in accordance with this section to the jurisdiction of the service courts of a
country to which this section applies, is detained in custody pending or during the trial by
such a court of a charge brought against him.

shall for the purposes of any proceedings in any United Kingdom court be deemed to be in legal
custody.

(6) For the purpose of enabling the service courts and service authorities of a country to
which this section applies to exercise more effectively the powers referred to in sub-section (I) of
this section, the Admiralty, the Army, Council, or the Air, Council, if so requested by the
appropriate authority of that country. may from time to time by general or special orders direct
members of the home forces to arrest any person, being a member of a visiting force of that
country who is alleged to be guilty of an offence punishable under the law of that country and to
hand him over to such service authority of that country as may be designated by or under the
orders.

NOTES

1. This section enables the service court of the countries to which the Act applies (see
section 1 and notes) to try within the United Kingdom or on board one of Her Majesty's ships or
aircraft, members of the forces of such countries and their civilian component (see section 10) for
offences against the service Jaw of the country concerned Without this section it would not be
lawful under English law for the trial to take place.

2. United Kingdom includes Northern Ireland, but not the Channel Islands or the Isle of Man,
see, however, section 15.
 3. Sub-section (6) enable the service authorities of the United Kingdom, i.e., the Admiralty,
Army Council and Air Council, to issue orders, where asked to do so by the appropriate authority,
directing members of the United Kingdom armed forces to arrest members of the visiting force
and hand such offender over to the visiting force. The order of the Admiralty, dated 17th July
1956, made under this subb-section, is reproduced below:

"WHEREAS a request has been made by the Government of Pakistan for the issue of general
orders in pursuance of the powers conferred by Section 2(6) of the Visiting Forces Act, 1952 for
the purpose of enabling service court and service authorities of that C8untry to exercise more
effectively within the United Kingdom or on board any Her Majesty's ships or aircraft their
jurisdiction in relation to members of the Pakistan Forces, being members of visiting force of that
country;

Now, THEREFORE, the Lords Commissioners of the Admiralty in pursuance of the said
Section do by this Order authories any member of the Naval forces of her Majesty raised in and
serving in the United Kingdom to arrest any member of the Bangladesh forces, being a member
of a visiting force of that country, who is alleged to be guilty of an offence punishable under the
law of that country and band over such a member to the service authorities concerned at the
Bangladesh. High Commission, London."

3. Restriction as respects certain offences of trial by United Kingdom courts of offenders

connected with visiting force.-(I) Subject to the provision of this section a person charged with
an offence against United Kingdom law shall not be liable to be trial for that offence by a United
Kingdom court if at the-time when the offence is alleged to have been committed he was a
member of a visiting force or a member of a civilian component of such a force and-

(a) the alleged offence, if committed by him arose out of and in the course of his duty as a
member of that force or component, as the case may be; or

(b) the alleged offence is an offence against the person, and the person or, if more than one,
each of the, persons in relation to whom it is alleged to have been committed had at the time
thereof a relevant -association either with that force or with another visiting force of the same
country; or

(c) the alleged offence is an offence against property, and the whole of the property in
relation to which it is alleged to have been committed or, in a case where different parts of
that property were differently owned, each part of the property) was at the time thereof
the property either of the sending country or of an authority of that country or of a person
having such an association as aforesaid,
Provided that this sub-section shall not apply if at the time when the offence is alleged to have
been committed the alleged offender was a person not subject to the jurisdiction of the service
courts of the country in question in accordance with the last foregoing section.
 (2) In relation to the trial of a person who was a member of a civilian components, of a
visiting force at the time when the offence is alleged to have been committed, the last foregoing
sub-section shall not have effect unless it is shown that the case can be dealt with under the law of
the sending country.

(3) Nothing in sub-section (I) of this section-

(a) shall prevent a person from being tried by a United Kingdom court in a case where the
Director of Public Prosecutions (in the case of a court in England or Wales), the Lord
Advocate (in the case of a court in Scotland) or the Attorney General for Northern Ireland (in
the case of a court in Northern Ireland) certifies, either before or in the course of the trial, that
the appropriate authority of the sending country has notified him that it is not proposed to deal
with the case under the law of that country; or

(b) shall affect anything done or omitted in the course of a trial unless in the course thereof
objection has already been made that by reason of that sub-section the court is not competent
to deal with the case; or

(c) shall, after the conclusion of a trial, be treated as having affected the validity thereof if
no such objection was made in the proceedings at any stage before the conclusion of the
trial.

(4) In relation to cases where the charge (by whatever words expressed) is a charge of
attempting or conspiring to commit an offence or of aiding, abetting, procuring or being
accessory to or of being art and part in, the commission of an offence, paragraphs (b) and (c) of
sub-section (1) of this section shall have effect as if references in those paragraphs to the alleged
offence were reference to the offence which the person charged is alleged' to have attempted or
conspired to commit or, as the case may be, the offence as respects which it is alleged that he
aided, abetted, procured or was accessory to' or was art and part in, the commission thereof; and
reference in those paragraph to persons in relation to whom, or property in relation to which the
offence is alleged to have been committed shall be construed accordingly.

(5) Nothing in this section shall be Construed as derogating from the provisions of any other
enactment restricting the prosecution of any proceedings or requiring the consent of any authority
"the prosecution thereof.

(6) For the purposes of this section the expressions "offence against the person" and "offence
against property" shall be construed in accordance with the provisions of the Schedule to this Act.

NOTES
 1. This section restricts the power of the United Kingdom courts to try members of visiting
force and their civilian component for:

(i) Offences arising out of and in the course of the member's duty.

(ii) Offences committed against the person of another member of the visiting force or his
dependents.

(iii) Offences committed against the property of another member of the visiting force or of
the sending country.

2. The United Kingdom courts can in certain circumstances try the offences referred to in
para, (a), see sub-section (3).

3. This section does not apply to members of the visiting force or the civilian component if
the offence was committed when the offender was not subject to the jurisdiction of the courts of
the visiting force.

4. As to relevant association see section 12 (2).

4. United Kingdom courts not to try offenders tried by service courts of visiting
forces.-(I) without prejudice to the last foregoing section, where a person has been tried by as
service court of a country to which this section applies in the exercise of the powers referred to
in sub-section (I) of section. 2 of this Act he shall not be tried for the same crime by a United
Kingdom court.

(2) Where a person who has been convicted by a service court of such a country in the
exercise of the said powers is convicted by a United Kingdom court for a different crime, but it
appears to that court that the conviction' by the service court was wholly or partly in respect of
acts or omissions in respect of which he is convicted by the United Kingdom court that court shall
have regard to the sentence of the service court,

5. Arrest, custody. etc. of offenders against United Kingdom law.-(l) Neither of the two
last foregoing sections shall effect-

(a) any powers of arrest, search, entry. seizure or custody exercisable under United Kingdom
law with respect to offences committed or believed to have been committed against that law;
or
 (b) any obligation of any person in respect of a recognisance or bail bond entered into in
consequence of this arrest of' any other person, for such an offence; or

(c) any power of any court to remand (whether on bail or in custody) a person brought before
the court in connection with the such an offence.

(2) Where a person has been taken into custody by a constable without a warrant for such an
offence as aforesaid, and there is reasonable ground for believing that in accordance with section
two of this Act he is subject to the jurisdiction of the service courts of a country to which his
section applies, then with a view to its being determined whether he is to be dealt with for that
offence under United Kingdom law or dealt with by the court of that country for an offence under
the law thereof, he may notwithstanding anything in section thirty-eight of the Summary
Jurisdiction Act, 1879, be detained in custody for a period not exceeding three days without being
brought before a court of summary jurisdiction; but if within that period he is not delivered into
the custody of an authority of that country he shall, in accordance with the said section 38 be
released on bail or brought before a court of summary jurisdiction as soon as practicable after the
expiration that of period.

(3) In the application .of the last foregoing sub-section to Scotland for the first reference to
section thirty- eight of the Summary Jurisdiction Act, 1879, there shall be substituted a reference
to Section twenty-three of the Summary Jurisdiction (Scotland) Act, 1908 and for the words "in
accordance with the said section thirty-eight be, released on bail or there shall be substituted the
words "if not released on bail in pursuance of section fourteen of the Summary Jurisdiction
(Scotland) act, 1908, be".

(4) In the application of sub-section (2) of this section to Northern Ireland for the references
to section thirty-eight of the Summary jurisdiction Act, 1879, there shall be substituted references
of section thirty-nine of the Summary Jurisdiction and Criminal Justice Act (Northern Ireland),
1935, and the references to a court of summary Jurisdiction shall be construed as references to
such a court or al the resident magistrate out of petty sessions or a justice or of peace.

This section preserves the right of arrest, etc., by the United Kingdom authorities in respect of
an offence even if the offence was one in respect of which the jurisdiction of the United Kingdom
courts is restricted under section 3, e.g. if a constable saw an American soldier assaulting a
member of the civilian component of the United States visiting force he would have the right to
arrest the soldier notwithstanding the fact that the United States service courts have the right to
try the soldier.

6. Restriction on proceedings in respect of service of members etc. of visiting force.-No

proceedings shall be entertained by any United Kingdom court with regard to the pay of any
person in respect of service as a member of a visiting force or as a member of a civilian
component of such a force, with regard to the terms of such service or with regard to a person's
discharge from such service.

7. Provisions as to coroner's inquests and as to removal of bodies of deceased persons.-(l)

If any coroner having jurisdiction to hold an inquest touching a death is satisfied that the deceased
person at the time of his death had a relevant association with a visiting force, then unless the
Secretary of State otherwise directs the coroner shall not hold the inquest or, if the inquest has
been begun but not completed, ,shall adjourn the inquest and, if a jury has been summoned, shall
discharge the jury.

(2) Subject to the last foregoing sub-section, if on inquest touching a death the coroner is
satisfied.

(a) that a person who in accordance with section two of this Act is subject to-the jurisdiction
of the service courts of a country to which this section applies has been charged before a court
of that country with the homicide of the deceased person, whether or not that charge has
been dealt with, or

(b) "that such a person is being detained by an authority of that country with a view to being
so changed, then unless the Secretary of State otherwise directs the coroner shall adjourn the
inquest and, if a jury has been summoned, shall discharge the jury and shall furnish the
registrar of deaths with a certificate stating the particulars necessary for the registration of the
death so far as they have been ascertained at the inquest.

(3) Where an inquest is adjourned under this section the coroner shall not resume it except on
the direction of the Secretary of State and, if he does resume it, shall proceed in all respects as if
the inquest had not previously been' begun, except that it shall not be obligatory on the coroner to
view the body or to furnish the registrar of death, with any certificate or further certificate, as the
case may be.

(4) Section four of the Birth and Deaths Registration Act, 1926 (which restricts the removal
out of England of the body of a deceased person) shall not apply to the body of a person who at
the time of his death had a relevant association with the visiting force.

Provided that this sub-section shall not apply as respects the body of a person concerning
whose death, by virtue of a direction of the Secretary of State under sub-section (1) or (3) of this
section, an inquest is required to be held, or if begun, is required to be resumed.
 (5) Notwithstanding sub-section (1) of section two of the said Act of 1926 (which relates to
certificates to be given to persons giving information concerning deaths), the registrar shall not
given to certificate under that sub-section to the person giving information concerning a death if
that person informs the registrar that the body is one as respects which the last foregoing sub-
section has effect and that it is proposed to remove the body out of England.

(6) In this section the expression "homicide" includes murder manslaughter, infanticide and
any offence under the law of the country in question which is analogous to any of those offences.

(7) In the application of this section to Northern Ireland for the references to the Secretary of
State there shall be substituted references to the Minister of Home Affairs for Northern Ireland,
and subsections (4) and (5) shall be omitted.

NOTES

1. The effect of this section is generally to absolve a coroner from the necessity of holding an
inquest on the death of a member of a visiting force.

2. The section further enables the body of a deceased member of the

visiting force to be taken out of the United Kingdom

3. As to relevant association, see section 12 (2).

8. Application to visiting forces of law relating to home forces. (1)Where under any
enactment a power is exercisable by any authority or person.

(a) as respects any of the home forces or their members or service courts or other persons in
any way connected therewith, or
 (b) as respects any property used or to be used for the purpo ses of any of the home
forces, or for taking possession of any property to be so used, or for acquiring (whether
by agreement or compulsorily) any property so used or to be so used.
Her Majesty may by Order in Council make provision for securing that subject any conditions
specified by or under the Order the power shall be exercisable by that authority or person in the
case of any visiting force to which the Order applies an any extent to which it would be
exercisable if the visiting force were a part of any of the home forces.

(2) Her Majesty may by Order in Council made as respects any visiting force make provision-

(a) for exempting that force or members or service courts there of or other persons in any way
connected therewith, or property used or to be used for the purposes thereof, from the
operation of any enactment specified in the Order to any extent to which the force, members,
courts, persons or property would be, or would be capable of being, exempted there from if
the force were a part of any of the home forces;

(b) for conferring on that force or any such members courts, persons or property as aforesaid
any other privilege or immunity specified in the Order, being a privilege or immunity which
would be enjoyed by, or would be capable of being conferred on, the force, members, courts,
persons of property if the force were a part of any of the home forces, subject however, to any
conditions specified by or under the Order.

(3) Where by any enactment the doing of anything is prohibited, restricted or required in relation
to-

(a) any of the home forces or their members or service courts or other persons in any way
connected therewith,

(b) any property used or to be used for the purposes of any of the home forces,

Her Majesty may by Order in Council make provision for securing that the prohibition,
restriction or requirement shall have effect in the case of any visiting force to which the Order
applies to any extent to which it so would have effect if the visiting force were a part of any of the
home forces.

(4) An order in Council under this section-

 (a) may contain such incidental, consequential and supplementary provisions as appear to
Her Majesty in Council expedient for the purposes of the Order, including provisions for
applying modifying, adapting or suspending any enactment;

(b) may make financial provision in respect of the exercise of any power, or the discharge of
any duty, conferred or imposed by the Order.

(5) There shall be defrayed out of moneys provided by Parliament any increase attributable to
the provisions of an Order under this section in the sums payable out of such moneys under any
enactment.

(6) No recommendation shall be made to Her Majesty in Council to make an Order under this
section unless a draft thereof has been laid before Parliament and approved by resolution of each
House of Parliament.

(7) In this section-

"enactment" means an enactment (passed either before or after the passing of this Act) of
the Parliament of the United Kingdom or of the Parliament of Northern Ireland and includes
any instrument having effect under an enactment;

"property" includes both real and personal property, or in Scotland both heritable and
moveable property.

(8) Sub-sections(l) and (3) of this section apply whether the power in question is
exercisable, or the prohibition, restriction or requirement in question is imposed, by provision
expressly relating to the home forces or by more general provision, and sub-section (2) of this
section applies whether the exemption, privilege or immunity in question would subsist, or be
capable of being conferred, by virtue of any such provision or by reason of any enactment's not
binding the Crown.

NOTES

1. This section enables an Order in Council to be made applying to the visiting forces the law
relating to the United Kingdom force. See below the Order in Council, viz.: The visiting Forces
(Application of Law) Order, 1954 (as amended by an Order of 1956). The principal provisions
are contained in Article 12 and Schedules 4 and 5 thereof.
 2. Under Schedule 4 any officer authorize to convence a court-martial under A.A., 1955 and
R.P. 91 may issue a summons to a witness to attend a court-martial convened by a visiting force
and United Kingdom service witness may be ordered to attend a court-martial convened by a
visiting force by the appropriate United Kingdom service authority.

3. Schedule 5 of the Order in Council makes provision for the custody in detention of persons
sentenced by t he Service courts of visiting forces in the same places as persons sentenced under
A.A., 1955, may be detained.

9. Settlement of claims against visiting forces.-(l) The Minister of Defence may make
arrangements whereby claims in respect of acts or omissions of members of visiting forces, or
other persons connected therewith to when the arrangements relate, being acts or omissions of
any description to which the arrangements relate, will be satisfied by payments made by the said
Minister of such amounts as may be adjudged any United Kingdom court or as may be agreed
between the claimant and the said Minister or such other authority as may be provided by 1 the
arrangements; and any expenses of the Minister of Defence incurred in satisfying claims in
pursuance of any such arrangements or otherwise in connection with the arrangements shall be
defrayed out of moneys provided by parliament.

(2) The said Minister shall take such steps as may be requisite for securing that persons
concerned with any arrangements made by him under this section shall be informed of the nature
and operation or the arrangements.

10. Definition of membership of civilian component of visiting force.-(I) In this Part of this
Act references to a member of a civilian component of a visiting force are references to a person
for the time being fulfilling the following conditions, that is to say-

(a) that he holds a passport issued in respect of him by a Government, not being a passport
issued by the passport authorities of the United Kingdom or any colony;

(b) that the passport contains an uncancelled entry made by or on behalf of the appropriate
authority of the sending country stating that he is a member of civilian component of a
visiting force of that country; and

(c) that passport contains a note of recognition of that ,entry by or on behalf of the Secretary
of State which bas not been cancelled and as respects which no notification in writing has
been given by or on behalf of the Secretary of State to the appropriate authority of the sending
country stating that the recognition is withdrawn.
 (2) The reference in .p3Iagraphl (c) of the last foregoing subsection to a note of recognition of
an entry in a passport is a reference to any mark or indication made in the passport by or on
behalf of the Secretary of State signifying that the entry has been noted and approved.

(3) For the purpose of this section the following provisions shall have effect in any
proceedings in any United Kingdom court that is to say

(a) a document purporting to be a passport issued by or on behalf of a Government and to be

so, issued in respect of a person bearing the name in which a person is referred to in the
proceedings (whether as a party thereto or otherwise) shall, unless the contrary is proved, be
deemed to have been issued by that Government and to relate to the person so referred to;

(b) an entry in a passport containing such a statement as is mentioned in paragraph (b) of sub-
section (1) of this section and purporting to be made by or on behalf of the appropriate
authority of the sending country shall, unless the contrary is proved, be deemed to have been
so made; and

(c) a mark or indication in a passport purporting to be made by or on behalf of the Secretary

of State shall, unless the contrary is proved, be deemed to have been so made.

(4) In this section the expression passport includes any document which, in accordance with
the United Kingdom law for the time being in force, would be treated as the equivalent of a
passport in the case of a person entering the United Kingdom, being a national of the country by
whose Government the document is issued.

11. Evidence for purposes for part I. (1) For the purposes of this Part of this Act a
certificate issued by or on behalf or the appropriate authority of a country, stating that at a time
specified in the certificate a person so specified either as or was not a member of a visiting force
of that country, shall in any proceedings in any United Kingdom court be sufficient evidence of
the fact so stated unless the contrary is proved.

(2) For the purposes of this; Part of this Act a certificate issued by or on behalf of the
appropriate authority of a country, stating, is respects a person specified in the certificate,-

(a) that on a date so specified he was sentenced by a service court of that country to such
punishment as is specified in the certificate, or

(b) that he is, or was at a time so specified, detained in custody in pursuance of a sentence
passed upon him by a service court of the country or pending or during the trial by such a
court of a charge brought against him, or
 (c) that he has. been tried, at a time and place specified in the certificate, by a service court of
that country for a crime so specified shall in any proceedings in any United Kingdom court be
conclusive evidence of the facts so stated.

(3) For the purposes of sub-section (2) of section three Of this Act, a certificate issued by or
on behalf of the appropriate authority of a country, stating in connection with any charge against
a person of an offence against United Kingdom law, being charge specified in the certificate, that
his case can be dealt with under the law of that country shall in any such proceedings as aforesaid
be conclusive evidence of the fact so stated.

(4) Where a person is charged with an offence against United Kingdom law and at the time
when the offence is alleged to have been committed he was a member of a visiting force or a
member of a civilian component of such a force, a certificate issued by or on behalf of the
appropriate authority of the sending country, stating that the alleged effence, if committed by
him, arose out of and in the course of his duty as a member of that force or component, as the
case may be, shall in an)' such proceedings as aforesaid be sufficient evidence of that fact unless
the contrary is proved,

12. Interpretation of Part 1.-(1) In this Part of this Act, unless the context otherwise
requires, the following expressions have the meanings hereby assigned to them respectively, this
is to say :

"court" includes a service court;

"Her Majesty's ships or aircraft" does not include ships or

aircraft belonging to Her Majesty otherwise than in right of Her Majesty's Government in
the United Kingdom;

"the home forces" means any of the forces of Her Majesty

raised in the United Kingdom and for the time being

serving in the United Kingdom;

"members" in relation to the visiting force, means a member of the forces of the sending
country being one of the members thereof for the time being appointed to serve with that
visiting force; .
"the sending country", in relation to a visiting force, means the
country to whose forces the visiting force belongs;

"service authorities" means naval, military or air force

authorities;

"service court" means a court established under service law

and includes any authority of a country who under the

law thereof is empowered to review the proceedings of

of such a court or to try or investigate charges brought
against persons subject to the service law of that country;
and references to trial by, or to sentences passed by service courts of a country shall be
construed respectively
as including references to trial by, and to punishment
imposed by, such an authority in the exercise of such
powers;

"service law", in relation to a country, means the Jaw

. .. governing all or any of the forces of that country; and

"visiting force" means, for the purposes of any provision in

this Part of this Act, any body, contingent or detachment

of the forces of a country to which that provision

applies, being a body, contingent or detachment for the
time being present in the United Kingdom on the invitation of Her Majesty's Government
in the United Kingdom.

(2) References in this Part of this Act to a person's having at any time a relevant association
with a visiting force are references to his being at that time a person of one or other of the
following descriptions, that is to say –

(a) a member of that visiting force or a member of a civilian component of that force;

(b) a person, not being a citizen of the United Kingdom and Colonies or ordinarily
resident in the United Kingdom, but being a dependant of a member of that visiting force
or of a civilian component of that force.
 (3) In determining for the purposes of any provision in to is Part of this Act whether a person
is, or was at any time, ordinarily resident in the United Kingdom, no account shall be taken of any
period during which he has been or intends to be present in the United Kingdom while being a
member of a visiting force or of a civilian component of such a force, or while being a dependant
of a member of a visiting force or of such a civilian component.

(4) In this section the expression "dependant", in relation to a person means any of the following,
that is to say-

(a) the wife or husband of that person, and

(b) an other person wholly or mainly maintained by him or in his custody charge or care.

NOTE

This section defines various expressions used in Part I of the Act and sub section (2) marks it
clear that a person who is a citizen of the United Kingdom or the colonies or ordinarily resident in
the United Kingdom is not a person having a relevant association with a visiting force , even if he
is a dependant of a member of the force or its civilian component.
Navigation: Manual of Naval Law > Part-IV(Miscellaneous
Enactments and Statutory Orders) >

Ss-13 to 19

PART II

DESERTERS AND ABSENTEES WITHOUT LEAVE

13. Apprehension and disposal of deserters and absentees without leave.-(l) Subject to the
provisions of this section, sections one hundred and eighty-six to ; one hundred. and eighty-eight
and one hundred and ninety of the Army Act, 1955 (which relate to the apprehension, custody
and delivery into military custody of deserters and absentees without leave from the regular
forces) shall within the United Kingdom apply in. relation t-o deserters and absentees without
leave from the forces of any country to which this/section applies as they apply in relation to
deserters and absentees' without leave from the regular forces.

(2) The powers conferred by the said sections one hundred and eighty-six and one hundred
and eighty-eight, as applied by the last foregoing sub-section, shall not be exercised in relation to
a person except in compliance with a request (whether specific or general) of the appropriate
authority of :the country to which he belongs.

(3) In sections one hundred and eighty-seven, one hundred and eighty-eight and one hundred
and ninety of the Army Act, 1955. as applied by sub-section (1) of this section, references to the
delivery of a person into military custody shall be construed as references to the handing over of
that person to such authority of the country to which he belongs at such place in the United King-
dom as may be designated by the appropriate authority of that country.

(4) (Repealed).

(5) (Repealed).

(6) In this section references: to the country to which a person belongs are reference to the
country from whose forces he is suspected of being, or ( where he has surrendered himself)
appears from his confession to be, a deserter or absentee without leave
 (7) (Repealed).

NOTES

1. This section as amended by R, of A.F.A. Act, 1955, provides that the provisions of A.A.,
1955, sections 186-188 and 190 shall apply to absentees and deserters from visiting forces. The
effect of this section is that any person can arrest a member of the visiting forces who is a deserter
or absentee or is suspected of being such a deserter or absentee but the power of arrest cannot be
exercised unless a request has been made by the appropriate authority [see section 17(3)] ,of
visiting force.

2. Sub-sections (1)-(4) were replaced by sub-sections (1)-(3). There is now no sub-section (4).

14. Evidence for purposes of Part II.-For the purposes of any proceedings under or arising
out of any provision of the Army Act, 1955, as applied by the last foregoing section.-

(a) a document purport to be a certificate under the hand of the Secretary of the Admiralty, the
Secretary of the Army Council or the Secretary of the: Air Council, stating that a request has
been made for the exercise: of the powers mentioned in sub-section (2) of the last foregoing
section, and indicating the effect of the request, shall be sufficient evidence, unless the
contrary is proved, that the request has been made and of its effect; and

(b) a document purporting to be a certificate under the hand of the officer commanding a unit
or detachment of any of the forces of a country to which this section applies, stating that a
person named and described therein was at the date of the certificate a deserter, or absentee
without leave, from those forces shall be sufficient .evidence, unless the contrary is proved, of
the facts appearing from the document to be so certified.

PART III

SUPPLEMENTARY PROVISION

15. Extension of Act to colonies and dependencies.-(1) As regards any territory specified in
sub-section (3) of this section. Her Majesty may by Order in Council direct that-
 (a) the provisions of this Act other than this section, and

(b) Any Order in Council made under sub-section (2) of section one of this Act which is in
force at the coming into operation of the Order under this section shall extend to that territory,
subject to such adaptations, modifications or exceptions as may be specified in Order under
this section.

(2) Where an Order in Council is made under this section as respects a territory, and while
that Order is in force an Order in Council is made under subsection(2) of section one of this sub-
section referred to as "the subsequent Order") the subsequent Order may either be made so as to
extend to the territory as aforesaid, subject to such adaptations, modifications or exceptions as
may be specified in the subsequent Order, or may be made so as not to, extend thereto, as may be
provided in the subsequent Order.

(3) The territories herein before referred to are the following:-

(a) the Channel Islands and the Isle of Man;

(b) all colonies;

(c) all protectorates and protected states within the meaning of British Nationality Act,
1948; and

(d) all United Kingdom trust territories as defined in 'that Act.

NOTES

1. This section enables the provisions of the Act to be extended to the Commonwealth
countries the United States of America has been designated so far as Cyprus, Gibraltar, Hong
Kong, and Malta are concerned, see S. Is. 1954 No. 537 and No. 1041, and France has been
designated so far as Cyprus is concerned, see S. 1. 1956 No. 1368.

2. S.1. 1954 No. 636 as amended by S. 1. 1957 No. 103 applies the Act colonies referred to
therein with modifications, see page 46 .
3. The expression "colony" includes the Central Africa Federation, see S. 1 1953 No. 1199,
Section 13(2).

16. Provisions as to proof of fact by certificate.-(l) For the purposes of this Act--

(a) a certificate issued by or on behalf of the appropriate authority of a country, stating that a
body, contingent or detachment of the force of that country is, or was at a time specified in
the certificate, present in the United Kingdom, shall in any proceedings in any United
Kingdom court be conclusive evidence of the fact so stated; and

(b) Where in any such proceedings it is admitted or proved (whether by means of a

certificate under the foregoing paragraph or otherwise) that a body, contingent or
detachment of the forces of a country is or was at any time present in the United Kingdom,
it shall be assumed in those proceedings, unless the contrary is shown, that the body,
contingent or detachment is or was at that time present in the United Kingdom on the
invitation of Her Majesty's Government in the United Kingdom.

(2) Where in any certificate issued for the purposes of this Act reference is made to a person
by name, and in any proceedings in a United Kingdom court reference is made to a person by that
name (whether as a party to the proceedings or otherwise), the references in the certificate and in
the proceedings respectively shall, unless the contrary is proved, be deemed to be references to
one and the same person.

(3) Any document purporting to be a certificate issued; for the purposes of any provision of
this Act. and to be signed by or on be half of an authority specified therein, shall be received in
evidence and shall, unless the contrary is proved, be deemed to be a certificate issued by or on
behalf of that authority; and where under the provision in question a certificate is required to be
issued by or on behalf of the appropriate authority of a country, and the document purports to be
signed by or on behalf of an authority of that country, that authority shall, unless the contrary is
proved, be deemed to be that appropriate authority of that country for the purposes of that
provision.

17. Interpretation.-(l) In this Act, unless the contex other wise requires, the expression
"forces", in relation to a country, means any of the naval, military or air forces of that country, the
expression "United Kingdom court" means a court exercising jurisdiction in the United Kingdom
under United Kingdom law otherwise than by virtue of section two of this Act, and the expression
"United Kingdom law" means the law of the United Kingdom or any part thereof.
 (2) For the purposes of this Act a member of a force of any country which (by whatever name
called) is in the nature of a reserve or auxiliary force shall be deemed to be a member of that
country's forces so long as, but only so long as, he is called into actual service (by whatever
expression described) or is called out for training; and any reference in this Act to a person's
becoming a member of a country’s forces shall be construed accordingly.

(3) References in any provision of this Act to the appropriate authority of a country are
references to such authority as may be appointed by the Government of that country for the
purposes of that provision.

(4) References in this Act to the presence of any forces in the United Kingdom at any time
shall be construed as including references to their being at that time in transit to the United
Kingdom.

(5) In this Act, unless the context otherwise requires, any reference to an enactment shall be
construed as a reference to that enactment as amended by or under any other enactment, and in
this sub-section the expression "enactment" includes an enactment of the Parliament of Northern
Ireland.

(6) Any power conferred by the foregoing provisions of this Act to make an Order in
Councilor order shall be construed as including a power, exercisable in the like manner, to vary or
revok the Order in Council or order; and an Order in Council varying or revoking an Order under
sub-section (2) of section one of this Act may contain such transitional provisions as appear to
Her Majesty in Council-expedient in consequence of the variation or revocation.

18. Repeals.- There are hereby repealed-

(a) sections one to three of the Visiting Forces (British Commonwealth) Act, 1933, and sub-
section (1) of section five of that Act; and
(b) the Allied Forces Act, 1940, and the United Stated of America (Visiting Forces) Act, 1942
:
Provided that (without prejudice to the provisions of section thirty- eight of the Interpretation
Act, 1889) where immediately before the commencement of this section a person was imprisoned
or detained in pursuance of any provision of those Acts or of any Order in Council made there
under, the said repeal shall not affect t the operation of any such provision in relation to his
continued imprisonment or, detention:

19. Short title and commencement-(l) This Act may be cited as the Visiting Forces
Act, 1952.
 (2) This Act shall come into operation on such date as Her Majesty may by Order in Council
appoint and different dates may be appointed in relation to different provisions of this act.

NOTE

The Act came into force on the 12th June, 1954 [s.I. 1956, No. 633 (C,5)].

SCHEDULE

Offences referred to in Section 3

1. In the application of section three of this Act to England and Wales and to Northern
Ireland, the expression "offence against the person" means any of the following offences, that is
to say ;-

(a) murder, manslaughter, rape, buggery and assault; and

(b) any offence not falling within the foregoing sub-paragraph, an offence punishable under
any of the following enactments ;

(i) the offences against the Person Act, 1861, except section fifty seven thereof (which
relates to bigamy);

(ii) (Repealed);

(iii) (Repealed);

(iv) section eighty-nine of the Mental Health Act (Northern Ireland), 1948 (which
relate respectively to certain offences against mentally defective females);

(v) section twenty-three of the Larceny Act, 1916 (which relates to robbery);

(vi) section one to five and section eleven of the Children and Young Persons Act,
1933, and section eleven, twelve, fourteen, fifteen, sixteen and twenty-one of the
Children and Young Persons Act (Northern Ireland), 1950;

(vii) the Infanticide Act, 1938 and the Infanticide Act \Northern Ireland). 1939; and

(viii) sections two to twenty-eight of the Sexual Offences Act. 1956.

 2. In the application of the said section three to Scotland, the expression "offence against the
person" means any of the following offences, that is to say :

(a) murder, culpable homicide, rape, robbery. assault, incest, sodomy, lewd, indecent and
libidinous practices, procuring abortion abduction, cruel, and unnatural treatment of persons,
threats to murder or to injure persons; and

(b) any offence not falling within the last foregoing sub-paragraph, being an offence
punishable under any of the following enactments:

(i) the Criminal Law Amendment Act, 1885;

(ii) section forty-six of the Mental Deficiency and Lunacy (Scotland) Act, 1913 (which
relates to certain offences against mentally defective females); and

(iii) sections twelve to sixteen and twenty-two of the , Children and Young Persons
(Scotland) Act, 1937.

3. In the application of the said section three to England and Wales and to Northern Ireland,
the expression "offence against property" means any offence punishable under any of the
following enactments, that is to say :

(a) the Larceny Act, 1861;

(b) the Malicious Damage Act, 1861;

(c) section thirteen of the Debtors- Act, 1869, and section thirteen of the Debtors Act
(Ireland), 1872 (which relate respectively to the obtaining of credit by false pretences and to
certain frauds on creditors);

(d) the Falsification of Accounts Act, 1875

(e) the Larcency Act, 1916, except section twenty-three thereof; and

(f) section twenty-eight of the Road Traffic Act, 1930, and section four of the Motor Vehicles
and Road Traffic Act (Northern Ireland), 1930 (which relate respectively to the biking of a
motor vehicle without the owner's consent).

4. In the application of the said section three to Scotland, the expression "offence against
property" means any of the following offences that is to say:
(a) theft, housebreaking with intent to steal, (opening; lockfast places with intent to steal, reset,
plagium, breach of trust and embezzlement, falsehood, fraud and wilful imposition, threats to
extort money or with intent to extort money, and malicious mischief; and

(b) any offence under section twenty-eight of the Road, Traffic Act, 1930.

EXTRACTS FORM

THE VISITING FORCES (APPLICATION OF LAW)

ORDER, 1954

STATUTORY INSTRUMENT No. 635 OF 1954.

1. Citation and commencement.-(I) This Order may be cited as the Visiting Forces (Application
of Law) Order 1954.

(2) This Order shall come into operation at the expiration of thirty days beginning with the day
on which it is made.

NOTE

This Order was made on 13th May, 1954 and it has come into operation With effect from 12th
June, 1954.

2. Interpretation.- (1) The Interpretation Act, 1889, applies for the interpretation of this Order
as it applies for the interpretation of an Act of Parliament.

(2) Except where the context otherwise requires, any reference in this order to any enactment
is a reference thereto as amended by any other enactment and includes a reference thereto as
applied by or incorporated with any other enactment.
 3. Application of Order-(I) The visiting forces to which this Order applies are those of
Canada, Australia, New Zealand, the Union of South Africa, India, Pakistan, Ceylon, the United
States of America, France, Belgium, Norway, the Netherlands, Luxembourg, Turkey, Greece,
Denmark, Portugal and Italy, and the expression "visiting force" shall be construed accordingly.
(2) The provisions of this Order shall be without prejudice to any enactment or rule of law
which applies in relation to any such force as aforesaid as part of Her Majesty's forces.

12. Witnesses before service courts, custody and detention of prisoners, etc.-(I) The provisions
of the Fourth Schedule to this Order shall have effect with respect to the attendance and conduct
of witness required for the purposes of the service courts of visiting forces, the privileges of such
witnesses and courts, and the administration of oaths therein.

(2) The provisions of the Fifth Schedule to this Order shall have effect with respect to the
custody, detention and treatment of persons sentenced by such courts to imprisonment or
detention.

13. Penalties for inducing or assisting desertion etc.-Section 192 of the Army Act. 1955,
(which provides for the punishment of persons who procure or persuade members of the regular
forces to desert or to absent themselves without leave, or who commit certain other offences
connected with desertion or absence without leave), shall have effect as if any reference therein to
an officer, warrant officer non-commissioned officer or soldier of the regular forces included a
reference to a member o a visiting force.

****

FOURTH SCHEDULE

Provisions relating to service courts of

Visiting forces

1. Civilian witnesses.-Subject to the provisions of this Schedule any person required as a

witness for the purpose of a service court of a visiting force (not being a person subject to the
Naval Discipline Act, to military law or to air-force law, or a person subject to the jurisdiction of
a service court of visiting force under sub-section (2) of section 2 of the Visiting Forces Act,
1952, may be summoned or ordered to attened the court by any officer of the home forces who
would have power to summon him to attened if the service court were a court-martial held in
pursuance of the Naval Discipline Act. the Army Act, 1955, or the Air Force Act. 1955.
 2. An officer shall not issue a summons or order for the attendance of any person as a witness
under the foregoing paragraph unless it appears to him that it is reasonably practicable to procure
that person's attendance and that provision for the reasonable expenses of his attendance has been
or will be made.

3. In relation to a person summoned or ordered to attened a service court under paragraph I of

this Schedule, section 101 of the Army Act. 1955 (which relates to offences by civilians in
relation to court-martial), shall apply as if for any reference to a court-martial there were
substitute a reference to the service court.

4. Service witnesses.-Any person required as a witness for the purposes of a service court of a
visiting force, being a person subject to the Naval Discipline Act, to military law or to air-force
law, may in accordance with arrangements made in that behalf between the service authorities of
the visiting force and the admiralty, the Army Council or the Air Council, as the case may be, be
ordered to attend that court by the proper naval, military or air-force authority.

5. In relation to a person ordered to attend a service, court under the last foregoing paragraph,
being a person subject to military law or to air-force law, sub-section (1) of section 57 of the
Army Act, 1955, or of the Air Force Act, 1955, as the case may be (which relates to misconduct
at courts-martial) shall apply as if for the references in paragraphs (a) to (f.) to a court-martial"
there were substituted references to the service court, and as if the words "other than the court in
relation to which the offence was committed" were omitted.

6. In relation to a person ordered to attend as aforesaid, being a person subject to the Naval
Discipline Act, that Act shall have effect as if for section 66 there were substituted the provisions
of sub-section (1) of section 57 of the Army Act, 1955, and as if in that sub-section the
modifications specified in the last foregoing paragraph had been made, and in addition:

(a) for the words "military law" there were substituted the words "this Act"; and
(b) for the words from "to imprisonment" to "by this Act" there were substituted the words
"to dismissal from Her Majesty's service, or such other punishment as is mentioned in this
Act"

7. General Provisions.-A witness before a service court of a visiting force or any other
person whose duty it is to attend on or before such a court shall be entitled to the same
immunities and privileges as a witness before the High Court in England.

8. (I) For the purpose of sub-section (1) of section 57 of the Army Act, 1955, or the Air Force
Act, 1955, and of section 101 of the Army Act, 1955, as applied by virtue of this Schedule to
proceedings before a service court of a visiting force, the expressions "duly required" and
"1awfuly required" shall be construed as if the service court were a court-martial held in
pursuance of the Naval Discipline Act, the Army Act, 1955, or the Air Force Act, 1955 as the
case may be, and subject to any rule of law with respect to Crown privilege.
 (2) Without prejudice to the generality of the foregoing subparagraph, nothing in this
Schedule shall compel any person to give or produce any evidence which he could not lawfully
be compelled to give or produce in any court of criminal jurisdiction in England.

9. Any enactment or rule of law with respect to privilege in proceedings for defamation shall
apply in relation to a service court of a visiting force as it applies in relation to a court-martial
held in pursuance of the Naval Discipline Act, the Army Act, 1955, or the Air Force Act, 1955.

10. Any oath required to be taken for the purposes of a service court of a visiting force may
be administered by the person authorised in that behalf under the service law of the sending
country

FIFTH SCHEDULE

Custody, detention and treatment of persons sentenced by service court of visiting forces

1. A member of a visiting force who is sentenced by a service court of a visiting force to any
form of imprisonment may, under the ;authority" of the Admiralty or a Secretary of State, be
detained temporarily, or for the whole or any part of his sentence, in any prison or establishment
in which a person sentenced to imprisonment by a court-martial under the Naval Discipline Act,
the Army Act, 1955, or the Air Force Act, 1955, may be detained, or in naval, military or air-
force custody.

2. A member of visiting force who is sentenced by a service court of a visiting force to

detention, may under the authority of the Admiralty or a Secretary of State, be detained
temporarily or for the whole or any part of his sentence, in any naval, military or air force
establishment in which a person sentenced to detention by a court-martial under the Naval
Discipline Act, the Army Act, 1955, or the Air Force Act, 1955, may be detained, or in naval,
military or air force custody.

3. Where such a person as is mentioned in paragraph (b) of sub-section (2) of section 2 of the
Visiting Force Act, 1952 (that is to say a person subject to the service law of the country in
question otherwise than as a member of that country's forces who is not a citizen of the United
Kingdom and Colonies nor ordinarily resident in the United kingdom) is sentenced by a service
court of a visiting force to any form of imprisonment, he may under the authority of the
Admiralty or a Secretary of State, be detained temporarily, or during the whole or any part of his
sentence, in any civil prison, or in naval military, air force or civil custody.
 4. The Admiralty, the Army Council and the Air Council may make arrangements with the
service authorities of any visiting force as to the reception from those authorities of persons to be
detained under this Schedule and their return to those authorities, and as to the circumstances in
which any such persons are to be released.

5. The provisions of any enactment with respect to the treatment of persons detained in
prisons or other establishments mentioned in the foregoing provisions of this Schedule (including
any such provisions relating to unsoundness of mind) shall apply-

(a) in relation to any person detained in pursuance of this Schedule in a civil prison, as if he
were a person sentenced by a court of the United Kingdom to imprisonment for the like term
as the term of the sentence of the service court;

(b) in relation to a person sentenced by a service court to any form of imprisonment and
detained as aforesaid in any naval, military or air force establishment, as if he were a person
sentenced by a court-martial held in pursuance of the Naval Discipline Act, the Army Act,
1955 or the Air force Act, 1955, as the case may be, to imprisonment for the like term as the
term of the sentence of the service court;

(c) in relation to a person sentenced by a service court to detention and detained as aforesaid
in any naval, military or air force establishment, as if he were a person sentenced by a court-
martial held in pursuance of the Naval Discipline Act, the Army Act, 1955, or the Air Force
Act. 1955, as the case may be, to detention for the like term as the term of the sentence of the
service court

6. (1) Section 186 of the Army Act, 1955 (which relates to the arrest of deserters and
absentees without leave), shall in the United Kingdom apply in relation to a person authorised to
be detained in' pursuance of this Schedule who is at large in circumstances which, in the case of a
member of the home forces, would amount to illegal absence from those forces, as it applies in,
relation to an officer, warrant officer, non-commissioned officer or soldier of the regular forces
who has deserted or is absent without leave.

(2) Sections 187, 188' and 190 of the Army Act, 1955 (which make provision as to the
delivery into military custody of persons illegally absent from the regular forces), shall in the
United Kingdom apply as if any person authorised to be detained in pursuance of this Schedule
were a member of the regular forces illegally absent there from and, as so applying, shall have
effect as if-
(a) any reference to military custody included a reference to naval or air force custody; and
 (b) in sub-section (3) of the said section 187 for the words "and if satisfied" to "absence
without leave" there were substituted the words "and if satisfied that he is a person authorised
to be detained in pursuance of the Fifth schedule to the visiting Forces (Application of Law)
Order, 1954".

THE NAVAL DISCIPLINE (COMMONWEALTH NAVIES

ORDER, 1959

Her Majesty, in pursuance of the powers conferred upon Her by sub-section (1) of section 116 of
the Naval Discipline Act, 1957, is pleased, by and with the advice of Her Privy Council, to order,
and it is hereby ordered, as follows:

1. Each of the naval forces specified in the first column of the Schedule; to this Order and
raised by the Commonwealth countries specified opposite thereto in the second column the said
Schedule shall be subject to the Naval Discipline Act, 1957 so far as it relates to the offences of
desertion or absence without leave and to arrest, trial and punishment of persons who have
committed or are suspected of having committed either of the said offences:

2. This Order may be cited as the Naval Discipline (commonwealth Navies) Order, 1959, and
shall come into operation on the twenty-seventh day of November, 1959.

SCHEDULE

Naval Force Commonwealth Country

Royal Australian Navy ...Commonwealth of Australia.

Royal Ceylon Navy ... Ceylon.

Ghana Navy ... Ghana.

Note;-This Order has since been amended to include the following:

Naval Force Commonwealth Amending Order Operative
date
Country
Pakistan Pakistan.. The Naval Discipline 30th
Navy March,
(Commonwealth 1961.
Navies)Amendment
order 1961
Indian Navy India The Naval Discipline 2nd
October,
(Commonwealth 1961
Navies)(Amendment
No 2) order 1961
Bangladesh Bangladesh - 19 Jul
Navy 1983

NOTE

Section 116 reproduced below of the (U.K.) Naval Discipline Act, 1957, empowers Her
Majesty by Order in Council to direct that members of any naval force of a Commonwealth
country or raised by any colony shall be subject to that Act so far as it relates to the offences of
desertion or absence without leave and to the arrest, trial and punishment of persons who have
committed or are suspected of committing either of these offences:

116. Application to deserters, etc., Commonwealth and colonial naval forces.(1)

Without prejudice to the foregoing, provisions of this Part of Act, Her Majesty may by Order in
Council direct that members of any naval force of a Commonwealth country or raised by any
colony shall be subject to this Act so far as it relates to the offences of desertion or absence
without leave and to the arrest, trial and punishment of persons who have committed or are
suspected of having committed either of the said offences.

(2) Where any Order in Council is made under this section in relation to members of a naval
force, references in section forty-seven and in Part III of this Act to Her Majesty's naval force
shal1 include references to that force.

GOVERNMENT OF THE PEOPLE'S REPUBLIC

OF BANGLADESH
 MINISTRY OF DEFENCE

Defence Division

NOTIFICATION

Dhaka, the 19th July 1983

No. S.R.O. 274-L/83.-Whereas it is expedient to provide for administration of oath or

affirmation to the commissioned officers of the Defence Services;

Now, therefore, in pursuance of the Proclamation of the 24th March, 1982, and in exercise of
all powers enabling him in that behalf, the Chief Martial Law Administrator is pleased to make
and issue the following Warrant:

THE DEFENCE SFRVICES ( COMMISSIONED OFFICERS)

OATHS WARRANT, 1983

1. Short title and commencement.-(l) This Warrant may be called the Defence Services
(Commissioned Officers) Oaths Warrant, 1983.

(2) It shall come into force at once,

2. Definitions-In this Warrant, unless there is anything repugnant in the subject or context,

(a) "Chief of Staff" means

 (i) in relation to the Bangladesh Army, including its Reserves and Auxiliary Forces, the
Chief of Army Staff;

(ii) in relation to the Bangladesh Navy, including its Reserves and Auxiliary Forces, the
Chief of Naval Staff; and

(iii) in relation to the Bangladesh Air Force, including its Reserves and Auxiliary Forces,
the Chief of Air Staff;

(b) "Defence Services" means the regular Army, Navy and Air Force, and includes all
Reserve and Auxiliary Forces thereof.

3. Persons to whom oathor affirmation is to be administered. An oath or affirmation shall

be administered-

(a) to every commissioned officer serving in the Defence Ser vices on the coming into
force of this Warrant;

(b) to every cadet who, after successful completion of training in any of the institutions of
the Defence Service is to be commissioned -as an officer.

(c) to every person to be commissioned as an officer in the Defence Services without

undergoing training in any such institution as aforesaid;

(d) to every officer on any retired or emergency list of officers of the Defence Services when
ordered on any duty or service for which as such officer he is liable;

(e) to every officer belonging to any Reserve or Auxiliary of the Defence Service when called
up for training or for military service (including active service); and

(f) upon his return to military duty, to every officer who has been seconded for civil service
in a civil department.

4. Mode of administering oath or affirmation.-(I) Save as provided in sub-paragraphs (2)

and (3), an oath or affirmation shall be administered by the commanding officer, or by any officer
authorised by the commanding officer in this behalf in the other form given in Schedule I
appended to this Warrant, or in such other form as the officer administering it considers to be in
accordance with the religion of the person to whom the oath or affirmation is to be administered
or is otherwise binding on his conscience.
 (2) In the case of a Chief of Staff, the oath or affirmation shall be administered by the
President of Bangladesh in the other form given in Schedule II to this Warrant.
(3) In the case of officers other than the Chief of Staff serving in the Defence Services on the
coming into force of this Warrant, the oath or .affirmation shall be administered by the Chief of
Staff concerned, or by such officer or officers as may be authorised by him in this behalf in the
form given in Schedule I.
(4) The alternative form of oath or affirmation an officer administering it
may devise under sub-paragraph (l) shall contain a promise that the person to
whom the oath or affirmation is administered will be faithful to Bangladesh and
its Constitution and bear true allegiance to the President of Bangladesh, and
will honestly and faithfully serve in the Defence Services and will go wherever
he is ordered by land, air or sea, and will observe and obey all commands of
any officer set over him, even to the peril of his life.

(5) The oath or affirmation shall be administered with all convenient speed after it has
become due.

(6) The person to whom the oath or affirmation is administered shall also sign the oath or
affirmation in confirmation of the same having been administered to him, and such confirmation
shall be authenticated by the signature of the officer administering the oath or affirmation.

5. Power to lay down ceremonial procedure, etc.- The Chief of Staff concerned may lay down
the procedure relating to the ceremony or parade at which oaths or affirmation may be adminis-
tered, and the mode of their administration, and other matters connected therewith.

6. Repetition of oath.-(I) Where an oath or affirmation has been administered to an officer or

cadet under paragraph 3 no oath or affirmation under this Warrant shall be administered to him
there after except where the form of oath or affirmation given in the Schedules is altered,
modified or substituted, in which case such officer or cadet shall be required to take a fresh oath
or affirmation in the altered, modified or substituted form.

(2) The provision of sub-paragraph (1) shall not apply to the Chief of Staff.

7. The Armed Forces (C6mmisioned Officers) Oaths Warrant, 1961 is hereby repealed.

gazettes
 FIRST APPENDIX

I.FORM OF OATH OR AFFIRMATION

II. CERTIFICATE OF ATTESTATION

(Reproduced in the notes to rule 7)

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

SECOND APPENDIX

I. FORM OF SPECIAL REPORT UNDER SECTION 90(3)

OF THE ORDINANCE: (See Rule 44)

II. FORM FOR USE AT SUMMARY DISPOSAL OF

OFFICERS UNDER RULE 121.

III. FORM OF PUNISHMENT WARRANT

UNDER RULE 106.

IV. FORM OF REPORT OF ARREST AND TRIAL BY CIVIL

POWER UNDER RULE 257 (5).

(Reproduced in the notes to the relevant rules,.)

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

THIRD APPENDIX

FORMS OF CHARGES

I. COMMENCEMENT OF CHARGE SHEET

II. STATEMENT OF OFFENCE:

(Reproduced at the beginning of Chapter VI

Offences of the N. Ordinance.)

------------------------
 FOURTH APPENDIX

I. FORMS AS TO COURT-MARTIAL

II. FORMS OF SUMMONS TO WITNESSES.

III. FORMS OF OATH AND AFFIRMATION.

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

I. FORMS AS TO COURT-MARTIAL

A. FORM FOR APPLICATION FOR A COURT-MARTIAL.

(Reproduced in the notes to rule 50.)

B. FORM FOR ASSEMBLY OF COURT-MARTIAL.

No.1 Form of order for the assembly of a General or District Court-Martial.

(Reproduced in the notes to rule 131.)

No.2. Form of order for the assembly or a Summary General

Court-Martial.

(Reproduced in form D below as "Combined

Form for Assembly and proceedings)

No.3 Declaration for suspension, of-Rules.

(Reproduced in the .notes to134.)

C. FORM OF PROCEEDINGS OF A GENERAL (OR DISTRICT)COURT-MARTIAL

 (Instruction :-This form is to be used as a general guide; the actual record may depart from
the form in numerous particulars. Some of the variations are set out below.)
Proceedings of a ..................... .Court-Martial, held at....................................................on the
………………..day of ..............................................19…………................…… by order
of…………............... ............................dated the……...................…….. day
of.......……………………..............………19. .......................

President…………….................………(rank, name, ship/establishment).

Members…………….................……...(rank, n31J'.e, ship/establishment).

Judge-Advocate…………………...............……………………………….

Trial of…………………. (No, rank, name, branch, ship/establishment).

(Instruction :-All documents relating to the court, or the matters/before it, which are
intended to form part of. the proceedings (such as an order respecting exigencies of the
service, or a letter answering any question referred to the convening officer), at whatever
Period of the trial they are received, should be read in open court, marked so as to identify
them signed by the president/(judge-advocate), and attached to the proceedings.)

The order convening the court, the charge-sheet and the summary of evidence are laid before
the court.
The court satisfy themselves that………….............................................................………..is not
able to serve

owing to…………………………………....................................................................…….(her
insert reason).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (rank, name etc. of the spare member) takes his

place as a member of the court.

The court satisfy themselves as provided by rules 135 and 136.

[Note :-Before certifying that the court have satisfied themselves as provided by rules 135 and
136 the president shall in every case where a board of inquiry has been held respecting a
matter on which charge against the accused is founded, insert an asterisk after the words "roles
135 and 136", and enter in red ink and sign a foot-note at the bottom of the first page of the
proceedings to the following effect :
"I have satisfied myself that none of the officers detailed as members of this court has
previously served upon any board of inquiry respecting the matters forming the subject of the
charge(s) before this court-martial".]
 (Signature of the President).

The accused is brought before the court.

(Rank, name etc.)…………………….........................................................…………...appears as

Prosecutor.

(Rank, name etc.)………………….............................................................……appears as

Counsel(Defending

Officer.)
(NOTE :-State legal qualifications, if any, of the Prosecutor and Counsel/(Defending
Officer). )

At. . . . . . . . . . . . . . . . . . . . . . hours the trial commences.

The order convening the court is read and is marked. . . …… signed

by the President/(Judge-Advocate) and attached to the proceedings.

The names of the president and members of the court are read over in the hearing of the accused,
and they severally answer to their names.

Question by the President to the accused-

"Do you object to be tried by me as president, or by any of the officers whose names you have
heard read over?

Answer by the accused:

"No”/(yes. . . . . .. . . . . . . . . . . . . . . . . . . .see variation below). . . . . . . ...............................

(Instruction:-The questions are to be numbered throughout consecutively in a single series.

The letters 'Q' and 'A' on the margin may stand for 'Question' and 'Answer' respectively.)

VARIATIONS

Answer :- I object to…………………………………………………

Question :-Do you object to any other person?

 (This question must be repeated until all the objections are ascertained).
Answer :-(If the president is objected to, that objection will be dealt with first, otherwise the
objection to
the junior officer will be disposed of first.)

Objection to the president

Question :- What is you objection to me as president?

Answer :- The accused in support of his objection to the president makes the following
statement: (set out) and calls..............................

who states :-(set out).

The court is closed to consider the objection.

Decision: The court disallow the objection.

The court is re-opened, and the above decision is made known to the accused.

or

Decision: The court allow the objection

The court is re-opened, and the above decision is made known to the accused, and the court
adjourn.

Objection to Member

Question:- What is your objection to. . . . . . . . . .(the junior member objected to)?
Answer :- (The accused in support of his objection to…………. Mattes the following
statement :- (set out), and calls…………..who states: (set out). .

The court is closed to consider the objection.

Decision: The court disallows the objection.
The court is re-opened, and the above decision is made known to the accused.
or
Decision: The court allow the objection.
The court is re-opened and the above decision is made known to the accused.

……………………………………………………………….retires.

Fresh member ………….(rank, name, ship/establishment) take his place as a member of the
court.
 (Note :-This only applies where there are spare members of the court, otherwise the court
must adjourn.)

He appears to the court to be eligible and not disqualified to serve on this court-martial.

Question: Do you object to tried by ………………(the fresh member)?

Answer: -(If he objects,) the objection ",will be dealt with in the same manner as the former
objection.).

Question: What is you objection to……….rightright(the next junior of officers Objected to)?

(This option will be dealt within the same manner as the former objection.)

The court adjourn for the purpose fresh members being appointed.

or

The court is of the opinion that in the interests of justice and for the good of the service, it is
inexpedient to adjourn for the purpose of fresh members being appointed, because
……………………(here state the reasons).

(NOTE :--The court must bear in mind the necessity of the legal minimum number required by
section 99 (1) of the Ordinance.)

At ………….hours on …… the court resume their proceedings, and an order appointing another
president (or fresh officers) is read, marked . . . . . . . . . ., and attached to the proceedings.

The court satisfy themselves with respect to such fresh president or officers as provided by rule
136.

(NOTE :-The procedure as to chal1enging fresh president or and the procedure if any
objection is allowed, will be the same as above.)

The president and members of the court, constituted after the above proceeding are as
follows :
 PRESIDENT

Rank …………......................... Name ….............……………… Branch

...........................………………. Ship/

(Establishment) …………………….

MEMBERS
Rank ………...............………… Name …………………......
Branch.......................................................................

(Establishment)…………................…………

The president, members, and judge advocate (if any) are duly sworn or affirmed (also any
officers under instruction).

Instruction:- The witnesses if in court, other than the Prosecutor, should be ordered out
of the court at this stage of the proceedings.

Question: Do you object to ..................................................... as interpreter?

Answer. .. . .. .. . . . . . . .. .. . . . .. . . . . . . . . . .. . . .. . . .. . .

Question :-Do you object to .............................................................. .as short hand writer?

Answer ……………………........................................................

Instructions:- (1) In case of objection the same procedure will be (allowed as in the
case of an objection to a member of the court.

(2) The interpreter and short-hand writer should be now sworn/(affirmed). If a

member of the court is appointed, interpreter, he must take the interpreter's
oath/(affirmation) in addition to the oath/(affirmation) administered to him as a
member of the court.
 --------------------------------

CHARGE-SHEET

The charge-sheet is signed by the president/(judge-advocate), marked. . . . . . . .. . . . and

annexed to the proceedings.

The accused is arraigned upon each charge in the above mentioned charge sheet.

Question:- Are you guilty or not guilty of (first) charge against you, which you have heard
read over?

Answer :- .........................................................................................................................

Instruction :-(1) Where there is more than one charge upon which the accused is arraigned; the
foregoing question, will be asked after each charge (whether alternative or not) is
read, the number of the charge being stated.

(2) If the accused pleads guilty to any charge the provisions of rule 14(;-(2) must be
complied with, and the fact that they have been complied with must be recorded.
Where there are 'alternative charges and the accused pleads guilty to the less serious
charge the court, if they, decide to proceed upon the more serious charge, will enter
the plea as recorded:
'The court proceed as though the accused had not pleaded guilty to any charge".

VARIATIONS

The accused objects to the charge on the, ground that. . . . . . . (set out).
"The court is closed to consider their decision.
The court disallow the objection (or, the court allows the objection, and agree to report to
convening authority).The court is re-opened, and the above decision is made known to the
accused. The-court proceeds with the trial (or adjourn).
 Amendment to charge

The court being satisfied that the name (or description) of the accused is. . . . . . . . . . . . . .and not
as stated in the charge-sheet, amend the charge-sheet accordingly.

or

The court being satisfied that the word(s). . . . . . . in the charge-sheet in respect of
the…………...charge(s) is (are) attributable to (a) clerical

error(s) for word(s).. ….. . . . .. . .amend the charge-sheet accordingly.

or

The court being satisfied that there is a mistake in the charge-sheet' attributable to omission,
amend the charge-sheet so as to correct that mistake.

or

The court before they close for consideration of their finding on the charge consider that in the
interests of justice, the following addition to (or omission from or alteration in) the charge is
required namely …………………..and adjourn to report their opinion to the convening authority;
(rule 143(2).

Plea to the jurisdiction (rule 144).

The accused pleads to the general jurisdiction of the Court on the ground that. . .. .. . . .. .. .. . .. .
(set out).

Question :-Do you wish to produce any evidence in support of your plea ?

Answer : ...............................................................................................................

[Witnesses are examined on oath/(affirmation)] The court is closed to consider their

decision.
 Decision :- The court :

(a) over-rule the plea and decide to proceed with the trial; or

(b) allow the plea and decide to report to the convening authority and adjourn; or

(c) are-in doubt as to the validity of the plea and decide to refer the matter to the convening
authority and adjourn; (or make the following special decision ………… and decide to
proceed with the trial).

The court is re-opened and the above decision is made known to the accused. The court proceed
with the trial (or adjourn).

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

Plea in bar of trial (rule 145).

The accused besides the plea of guilty (or not guilty) offers a plea in bar of trial.
Question:-What are the grounds of your plea ?
Answer: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

Question :-Do you wish to 9811 any evidence in support of your plea ?

Answer:……………………………………………………………….

Instruction :-Witnesses if any are examined etc. on oath or affirmation. The examination of
witnesses called by the accused and of any witnesses called be the prosecutor in reply,
will proceed" as directed below in the case of witnesses to the facts at the trial. The
prosecutor will be entitled to reply after a1l the evidence is given.
The court is closed to consider their decision.
 The court allow the plea and resolve to adjourn (or, to proceed with the trial on another charge).

……….or ……….

The court over-rule the plea.

The court is re-opened, and the above decision is made known to the accused.
The court adjourn (or, proceed with the trial on another charge), (or proceed with the trial).

Refusal to plead (rule 146 (1).

As the accused does' not plead intelligibly (or, refuses to plead) to the charge, the court enter a
plea of not guilty.

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

Insanity N.O. Section 123 (1)

The court find that the accused ………...........……. (No …….....……..............rank

…………...………........ name ………………………………..branch
…………………….ship/establishment/…………………….)is, by reason of unsoundness of
mind, incapable of making his defence.

Signed at ………………...................this ………......................………...day of

……......................19…..........

(Judge-Advocate) President.

PROCEEDINGS ON PLEA OF GUILTY

The accused having pleaded guilty to the charge the provisions of sub-rule (2) of rule 146
are here complied with.
 The court having been re-opened, the accused is again brought before it, and the charge(s)
to which he has pleaded guilty is/(are) read to him again.

To be struck out in case no plea of "not guilty" has been proceeded with.)

The accused …………., (No ………………, rank……………, name ……………………., ship/

establishment …………………) is found guilty of the charge/(all the charges);

Or

The accused……………(No ………… . , etc …………) is found guilty of the........charge, and is

found not guilty of the charge.

(Instruction :--If the trial proceeds upon any charge to which there is a plea of Dot guilty, the
court will not proceed upon the record of the plea of guilty, until after the finding on
that other charge: see rule 147 (1), and in that case the court will be re-opened and the
charge on which the record is guilty must be read to the accused again.

The accused may, in accordance with rule- -147 (2) make any statement he wishes in reference
to the charge.

The summary of evidence is read, marked. . . . . . . . . . .signed by the president and attached to
the proceedings.

(Instruction :-If there is no summary of evidence, sufficient evidence to enable the court to
determine the sentence, and to enable the confirming officer to know all the circumstances
connected with the case, will be taken on a separate sheet as on it plea of not guilty.)

Question :- Do you wish to make any statement in mitigation of punishment?

.. .. . .. . [see rule 147 (3)].

Answer :-. . . . . .............................................................................. . . . . . . . . . . . . . . . . . . . . . . .. . ..

........... …….
 The accused in mitigation of punishment says …………(Or, if the statement is in writing,
hands in a written statement; which is read, marked, signed by the president (judge-advocate),
and attached to the Proceedings).

(Instruction:-If the statement of the accused is not in writing the material portions of the oral
statement should be taken down in the first person and as nearly as possible in his own words.
If counsel or defending officer addresses the court on behalf of the accused the material
portions of his address should be recorded.

In any case any matter which is requested by or on behalf of the accused to be

recorded, should be recorded and care must be taken, whether a request is made ,or not,
to record every point brought forward in mitigation or punishment.)

VARIATIONS

Alteration of plea (rule 147 (4)).

The court being satisfied from the statement of the accused (or the summary of evidence or
otherwise), that the accused did not understand the effect of the, plea of guilty, enter in the
proceedings:-
The court consider that the accused does not understand the effect of his plea of guilty, after
the record, and enter a plea of "Not Guilty'"
(Instruction :-The court will then proceed in respect of this charge as on a plea of not guilty).

Witnesses for defence on plea of guilty [rule 147 (6))]

The court give permission to the accused to call witnesses to prove his above statement that.
. . . . . . . . . . . . . . . . . . . (Specify the statement to be proved).
 (Instruction :- The examination etc., of witnesses called in pursuance of this
permission will proceed in the same manner as 0/1 a plea of not guilty.)

Question :-Do you wish to call any witnesses as to character?

Answer :-..................................

(InstructionThe examination etc., of witnesses as to character will proceed as in the case of a

:- witness giving evidence as to the facts of the case).

PROCEEDINGS ON PLEA OF NOT GUILTY

Question :- Do you wish to apply for adjournment on the ground that any of the rules relating
to procedure before the trial have not been complied with, and that you have been
prejudiced thereby ,or on the ground that you have not had sufficient opportunity for
preparing you defence? (see rule 149 (a).

Answer
:…………………………………………...........................................................................................
.............

(Instruction :- The question will only be asked if, the accused pleads 'not guilty to one or
more of the charges. If the accused desires to make an application for adjournment the
court will hear any statement or evidence which he may desire to adduce in support
'thereof, and any statement of' the prosecutor or evidence in answer thereto. Such
statement or evidence will be recorded, together with the decision of the court on a
separate piece of paper attached to the proceedings and signed by the president, or the
judge-advocate ,if any.)
 The prosecutor makes an opening address, (or hands in a written address, which is read,
marked …………...... , signed by the president/(judge-advocate) and attached to the proceedings.

(Instruction ;- Where the address of the prosecutor is not in writing, the court should record so
much as appears to them material, and the record should be attached to the
proceedings).

The prosecutor proceeds to call witnesses.

First
witness…………..........................….(No……......................................,rank……................ame.......
..................

for prosecution ……………….............................., ship etc. being duly sworn/affirmed) is

examined by the prosecutor :-

………………………………………………………………..

Cross-examined by the accused/(by I counsel. or ,defending officers) :

……………………………………………………….

Re-examined by the prosecutor :

………………………………………………………..

Questioned by the court:

……………………………………………………….

(Instruction :- (1) The fact that rule 212 (2), (3) and (5) has been complied with
must be recorded at the conclusion of the evidence, of each witness.

(2) If the accused, or his counsel, or the defending officer declines to cross-
examine a witness that fact must be recorded.)
 VARIATIONS

Postponement of cross-examination [rules 206 and 213 (2)].

The court at the request of the accused allow ,the' Cross-examination of the witness to be
postponed.

Objection to evidence or procedure (rule 183)

The accused/(counsel, or defending officer)/or, (the prosecutor) objects to the following question
on the ground that :-

The court is closed to consider their decision.

The court over-rule/(allow) the objection, and the court is re-opened and the decision announced.
The court proceed with the trial.

Explanation or correction of evidence [rule 212 (2)] ,

The witness, on his evidence being read to him, makes the following explanation or correction:-

……… ……………………………… (set out)

.................................................……………………....

Examined by the prosecutor as to the above explanation or correction:-

………………………………………………………………....................................................

Examined by (or on behalf of the accused as to the above explanation or correction :-

 ………………………………..............................................………………………………

Or

The prosecutor and/or the accused (or counselor defending officer) declines to examine him
respecting the above explanation or correction.

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

Second witness ………(No……..….,rank……..…….name.………….…. for prosecution

……………….., ship etc.) being duly sworn/(affirmed) is examined by the prosecutor :

NOTE ;-(The examination etc., of this and every other witness proceeds as in the case of the
first witness);

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

VARIATION

Extended sitting of the court [rule 177 (2)]

The court think it expedient to continue to sit after six in the afternoon on the ground :-
…………………….(set out). ………………...............

ADJOURNMENT

At.................hours the court adjourn until .................................……… hours on the....................

.day of ….............19

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

SECOND DAY
 On the………….day of…………..19………….at …… .hours, the court reassemble pursuant to
adjournment.

Present the same members (and judge advocate) as on the day of ……..19………....

(Instructions :-(1) If upon re-assembly member is absent, and his absence will reduce the
court below the legal minimum, and-it appears to the members present that the
absent member, cannot attend within a reasonable time, the president or senior
member present will thereupon report the case to the convening authority.

(2) If either the president or the judge-advocate is absent, and cannot attend
within a reasonable time, the court will adjourn, and the president or senior
member present will thereupon report the case to the convening authority., (See
rule 179).

ABSENCE OF MEMBER

.. .. .. .. (Rank.. . . .. .. . ., name..……….....……., ship etc), being absent, a medical certificate (or

letter, as the case may be) is produced, read, marked.….……….….and attached to the
proceedings.

The court adjourn, until...............................................................

or

There being present.………….members (not less than the legal minimum) the trial is
proceeded with.

An order bearing date . . . . . . .. .. .., appointing. .. . .. . . . .. . to act as judge advocate in the

place of…………………....is read, marked.………………, signed by the president and
attached to the proceedings.
 The new judge advocate .……….……. is duly sworn(affirmed).

The trial is proceeded with..

Examination/(cross-examination))of.…………………….is continued..

THE PROSECUTION IS CLOSED

DEFENCE

Question:- Do you wish to make a statement?

Answer :- No/(Yes).

The accused in his defence says (or, hands in a written statement, which is read, marked.. ..
.signed by the' president (judge-advocate) and attached to the proceedings,

(Instruction :-(1) If the statement of the accused is not in writing, the material portion should
be taken down in the first person and as nearly as possible in his own words.

(2) Any matter which is requested by or on behalf of the accused to be recorded,

should be recorded and care must be taken, whether a request is made or not, to
record every point brought forward in the defence or in mitigation of punishment.

(3) The accused shall not be sworn or affirmed and no question shall be put to him
by the court or by any other person.)

Question :- Do you intend to call any witnesses to the facts of the case ?
 Answer :- ............... ......................

Question :- Do you intend to call witnesses as to character?

Answer :- ..............................

(Instruction :-(1) Where the accused does not call witness as to the fact, of the case but
wishes to produce witnesses as to character only, the evidence of such witnesses
shall be recorded on a separate sheet in the same manner as that of witnesses to the
fact. The court will then follow " the provisions of clauses (d) and (e) of rule
151 respecting the order of addresses.

(2) All addresses by the prosecutor, counselor defending officer, whether recorded by
the court or handed in writing win be attached to the proceedings in the order
which they are made. Written addresses will be read in open court, marked and
signed by the president judge-advocate.

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

VARIATION

Adjournment to prepare defence

The court at the request of the accused/(counsel/defending officer) adjourn until…….in

order to enable him to prepare his defence.

(Where the accused calls witnesses for the facts of the case):-
 The counsel/(defending officer) makes an opening address (or hands in written address which is
read, marked.…………., signed by the president/(judge-advocate) and attached to the
proceedings.

Where the address of the counsel/(defending officer) is not in writing the attached to court
shall record so much as appears to them material, and the attached record shall be the
proceedings.

The counsel/(defending officer) proceeds to call witnesses.

(The evidence of defence witnesses will be recorded on a separate sheet).

Pint witness for ………(No…….., rank.................………,

name....................................…...........

the defence ship/(establishment), being duly sworn/

(affirmed)is examined by the accused/(counsel for defending officer) :-

…….……………….…………………

Cross-examined by the prosecutor:….……….…….……………….……

Re-examined by the accused/(counsel/defending officer) :-
………………….……………….……

Questioned by the court :- .....................................................................

(Instruction: -(1) The fact that rule 212 (2), (3) and (5) has been complied with
must be recorded at the conclusion of the evidence of each witness.

(2) If the prosecutor declines to cross-examine that fact must be recorded.

(3) The evidence of witnesses to character, if any, shall be taken in the same manner
as witnesses to the facts.)

--------------------
 VARIATIONS

Recalling witnesses (rule 215)

(1) At the request of the prosecutor (or of the

accused);...……......................................................................….....

(No.………………, rank.…................., name.…................... ship etc.) is recalled and examined

on his former oath/(affirmation) through the president/(judge-advocate) and states as follows:-
................................……………….. …….
or

(2) The prosecutor with leave of the court calls/(recalls)…………......... (No……........……,

name.……..……, Rank.………………, ship etc.), for the purpose of rebutting a material
statement made by.……….…….…. a witness for the defence. The witness being duly
sworn/(affirmed) on his former oath/(affirmation) being examined by the prosecutor states as
follows :-

……….....................................……. (set out with any cross-examination, re-examination etc.)

or

(3) The prosecutor calls (or recalls) in reply to the witness(es) as to character called by the
accused.…….………… The witness being duly sworn/(affirmed) on his former
oath/(affirmation), being examined by the prosecutor states as follows :-

....................................……….……..(set out with any cross-examination, re-examination

etc.)
 or

(4) The court in accordance with rule 215 (4) calls (or recalls).………….… who being duly
sworn/(affirmed) on his former oath/(affirmation) states in reply to the president (or judge-
advocate) as follows:- ..............................................

(Instructions:-In (1), (2) and (3) witnesses must be called or recalled before the closing address
of or on behalf of the accused In (4) witnesses may be called by the court at any
time before the finding; in this case the accused or counsel or defending officer
should be given the opportunity of asking further questions through the court.)

ADJOURNMENT TO PREPARE ADDRESSES, ETC.

The court at the request of the accused/(counsel/defending officer adjourn until.…………..... to

enable the accused/(counsel/defending officer) to prepare his address

The Court, at the request of the prosecutor adjourn until. ….……… to enable the prosecutor to
prepare his reply.

The court at the request of the judge-advocate adjourns until ………

enable him to prepare his summing-up

 The accused/(counsel or defending officer) makes the following closing address (or hands in a
written closing address)., which is read, marked.………….… signed by the president/(judge-
advocate) and attached to the proceedings.

Or

The accused/counsel or (defending officer) declines to make a closing address.

The prosecutor makes the following reply (or hands in a written closing address), which is
read, marked ……………….., signed by the president/(judge advocate) and attached to the
proceedings.

Or

The prosecutor declines to reply.

________________

SUMMING UP

The judge-advocate makes the following summing up (or, if the summing up is in writing,
hands in a written summing up, which is read, marked ………….......... signed by the president
and attached to the proceedings.

Or
 The judge-advocate and the court think a summing up unnecessary.

The occasion when the prosecutor's closing address must precede that of
(Instruction:-(1) the accused/(counsel or defending officer) is given in rule 151.

Where the address or the prosecutor/(counsel or defending officer) is not in writing, the court
should record as much as appears to them material, and so much as the prosecutor/(counsel or
(2) defending officer) requires to be recorded.

Care must be taken, whether a request is made or not, to record every point
brought forward in the defence or in mitigation of punishment.

If the address of the accused is not in writing and is delivered by himself, the
material portions should be taken down in the first person, and as nearly as
possible in his own words.)

FINDING

The court is closed for the consideration of the finding.

The judge-advocate, if any, retires.

(1)Acquittal on all charges

The court find that the accused.………… (No....…………, rank……

name..…….…….ship.…..……….…… /establishment)………………. is not guilty of the
charge/(or all the charges)/ (and honourably acquit him of the same).

Signed at.……….................................… this.....................….……… day of

………...…....19

(Judge-Advocate). President.

(2) Acquittal on some but not

 all charges.

…………is not guilty of the………….. charge(s) /(and honourably acquit him of the same), but
is guilty of the………………… charge(s).

(3) Conviction on all charges

…………….. is guilty of the charge/(or, all the charges).

(4) Special 8adings

(a)……………………... is guilty of the charge(s) and guilty of the………………… charge

with the exception of the words……………... (for, with the exception that…………… (set
out)………………….).

or

(b)…………………… is not guilty of (desertion) but is guilty of (absence without leave).

(Instructions:-Any special finding permitted by rule 155 will be framed as far as possible in
accordance with (a).
Any special finding allowed by sections 112 or 113 of the Ordinance may be
expressed in accordance with (b).

(5) Reference to confirming authority

Rule 155 (3)

 The court find as regards the rightrightcharge that the accused did ………….. (set out facts
which the court find to be proved); but doubt whether the facts proved show the accused to be
guilty of the offence charged, or of the offence of…………………. (any of the offences of which
the accused might under the Ordinance legally be found guilty on the charge as laid). They
therefore refer to the confirming authority for opinion, and adjourn.

Or ………………. Rule 155 (7)

(NOTE:-This applies only to alternative charges)

The court find that the accused did ………………….. (set out such particulars of the charge as
the court find to be proved); but doubt whether such facts constitute in law the offence stated in
the charge or in the ……………… charge.

They therefore refer to the confirming authority for an opinion, and adjourn

(in either case)

The court re-assemble on the………….. day

of…………...............................................................19............

The opinion of the confirming authority is read, marked ……….. signed by the president and
attached to the proceedings.

The court now find the accused…………… (No……, rank……..,name………………………. ,

ship/establishment) is …….................(the findings to be recorded in the usual manner).

Signed at …….................…… this ………............................................................day

of……………19………..
(Judge-Advocate). (President).

(6) insanity (rule 217)

 The court find that the accused……………. (No …………. rank…….., name ………………..,
ship/establishment) committed the acts/(act) alleged as constituting the offence(s), but by reason
of unsoundness) of mind, was incapable of knowing the nature of those acts/(that act);

Or

but by reason of unsoundness of mind, was incapable of knowing that those acts were wrong/(that
act was wrong)/(or, contrary to law).

Signed at…………… this ……............................…… day of

……............................................19......

(Judge-Advocate). (President).

PROCEEDINGS ON CONVICTION

(Before sentence)

Evidence of character.

……………………. (No …………………, rank …………………. Name ……………………..

ship etc.) is duly sworn/(affirmed).

Questioned by the president:

What record have you to produce in proof of former convictions against the accused and of his
character and particulars of service?
Answer:

I produce a statement certified under the hand of the officer having custody of the service (or
other official) records.

The statement is read, marked …….............................rightright, signed by the president/ (judge-

advocate), and attached to the proceedings.

Question:-Is the accused the person named in the statement you have heard read?

Answer: -......................

Question:-Have you compared the contents of the above statement with the service (or other
official) records?

Answer: -......................

Question:-Are they true extracts from the service (or other official) records, and is the
statement of entries in the conduct sheet a fair and true summary of those entries?

Answer: -..................

Cross-examined by the accused (or by counsel/defending officer)………………….

Re-examined ……………………………………………

Or
 (The accused declines to cross-examine this witness).

If any evidence other than documentary, is given the fact that rule 212(2), (3)
(Instructions:-(1) and (5) have been complied with must be recorded.

Any further question may be put and any evidence produced which the court require as to
any point respecting the character and service of the accused on which the court desire to
(2) have information for the purpose of their sentence.

At the request of the accused or by the direction of the court the service or other official
books or in the certified copy of the material entries therein must be produced for the
(3) purpose of comparison with the statement.

The accused is entitled to call the attention of the court to any entries in the service or other
official books or in the certified copy above mentioned and to show that they are inconsistent
(4) with the statement.)

Question:-Do you wish to address the court on the evidence as to character and particulars of
service and in mitigation of punishment?

Answer: -rightright.(The accused (or counsel/defending officer) hands in a written address,

which is read, marked………………, signed by the president/(judge-advocate), and attached to
the proceedings.)

___________________

The court is closed for the consideration of the sentence-.

SENTENCE

(Instruction: - The provisions of sections 80 and 81 of the Ordinance must be carefully attended
to by the court in passing sentence.)
The court sentence the accused ………….(No …………………..., rank ......................, name
……………………, ship/(establishment) :-
(Instruction: - The sentence is to be marginally noted in every case).

(a) to suffer death by being hanged by the neck - Death

until he be

or

to suffer death by being shot to death.

to suffer rigorous imprisonment for….. years, - Rigorous imprisonment.

(b)
(or. months or days).

(c) to suffer simple imprisonment for ….. years, - Simple imprisonment.

(or, months or days)

(d) to be dismissed from the service. - Dismissal.

(e) to undergo detention for ….. years, - Detention.

(or, months or days).

(f) to take rank and precedence as if his appointment - Forfeiture of

seniority of rank

to rank of …… bore date …… or to take precedence

in the rank held by him, as if his name bad appeared
…… (a specified number of) places lower in the Navy List:
(g) to forfeit ……(years/months/days)/time Forfeiture of time for promotion to the rank
of………………… . promotion.

(in case of subordinate officers only).

(h) to be reduced to the rank of ………………… - Disranking.

or

leftleftto be reduced to …………………. (a lower rank).

(i) to put under stoppages of pay and allowances - Penal deduction

until he has made good the sum of………….in

............. respect of………………… …………………..

or

until he has made good the value of the following articles …………. (state the articles and the
value of each article).

(j) to be severely reprimanded; - Severe reprimand.

or

to be reprimanded. Reprimand.
 RECOMMENDATION TO MERCY

The court recommend the accused to mercy on the ground that …………………… Signed at
……………………, this ………… day of ………………..19…..

Judge-Advocate). (president).

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

REVISION

At ………....... on the ………… day of………….19….., at........ hours, the court re-assemble by
order of ………………..for the purpose of reconsidering their (finding and/or sentence).

Present the same members as on the ……………………………….

( lnstr1lctlon:- If a member is absent and the absence will reduce the court below the
required minimum, or if he is the president; and it appears to the members present
that such absent member cannot attend within a reasonable time, the president, or in
his absence, the senior member present, shall thereupon report the case to the
convening officer.)

The letter (order or memorandum) directing the re-assembly of the court for the revision and
giving reasons of the confirming authority for requiring a revision of the finding/(finding and
sentence)/(of sentence) is read, marked ………… signed by the president/(judge-advocate) and
attached to the proceedings.

If the confirming officer so orders, additional evidence may. be taken on revision

(Instruction:- ………… See section 133 of the Ordinance.)
REVISED FINDING:-

The court having attentively-considered the observations of the confirming authority, and the
whole of the proceedings:-

(a) do now revoke their finding and sentence, and find and sentence the accused to ………
………………….

or

(b) do now revoke their sentence, and now sentence the accused to
…………………………………………….

or

(c) do now respectfully adhere to their sentence/(or, finding and sentence).

Signed at…............…………. This ………….............. day of

..................……….19……

(Judge-Advocate). (President).

(Note:-The judge-advocate shall not be present during the consideration of the finding).

CONFIRMATION

(i) Confirmed.

or
 Confirmed. I direct that the sentence of imprisonment shall be carried force prison)/(or, in a
(ii) military in naval custody).

or

(iii) I confirm the finding and sentence of the court but mitigate/(remit, or, commute) the
sentence to……………………..

or

(iv) I vary the sentence so that it shall be as follows:-………………

and confirm the finding and sentence as so varied.

or

(Where it is necessary to confirm the special finding on several alternative charges):-

I confirm the finding(s) on ……….…… and …………..charges and I confirm the special
(v) finding relating to the and …….…….
charges, and declare that the finding amounts to a finding of guilty on the ……….…… and
…….…..charges. I confirm the sentence but mitigate/(remit. or, commute) the sentence to
……………….……………………………………………

or

(Where the confirming officer desires partly to reserve his confirmation) :

I confirm the finding of the court on the………….… and.……….………….. charges, and
reserve for confirmation by superior authority the finding on the.………………..
(vi) and.…….………. charges and the sentence.

or
 (vii) I confirm the finding of the court. but reserve the sentence for confirmation by superior
authority.

or

(viii) I confirm the finding of the court and sentence of the court as

to.................., and reserve the sentence so far as it ……….…… for confirmation by superior
authority

(Where the finding is not confirmed) :

(ix) Not confirmed

or

(Where a plea in bar of trial had been offered under rule 145):

The finding of the court that the plea in bar of trial is proved/(or, not proved) is
(x) confirmed (or, not confirmed).

or

(Where the court find that the accused is of unsound mind and consequently 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 that it was wrong or contrary to law):-

(xi) Confirmed/(or, not Confirmed).

 Signed at...........………… this.….……........................……… day of
.......................………………...19....

(Signature of confirming officer).

(Instruction:-Any remark of the confirming officer should be separate from, and form no part
of the proceedings.)

PROMULGATION

Promulgated and extracts taken at ….............……… this ……………….. day

of………………….. 19…….

Signature of officer in charge of Documents.

(Instruction:- Proceedings which are not confirmed must be

promulgated).

D.FORM FOR .4SSEMBLY AND PROCEEDINGS OF A SUMMARY GENERAL COURT-

MARTIAL

(a) Order convening the court

At……………, this ………………… day of ………………., 19.... (in cases falling under clause
(a)a of sub-section (1) of section 98):-

WHEREAS it appears to me, the undersigned, an officer empowered in this behalf by virtue of
clause (a) of sub-section (1) of section 98 of the Navy Ordinance, 1961 :-

or
(in cases falling under clause (b) of sub-section (1) of section 98):-

WHEREAS it appears to me, the undersigned, an officer now in command of

………….....…….…….….being a flotilla/(or, a squadron) of the Bangladesh Navy, on active
service :-

……………………………………………..

that the person(s) named in the annexed schedule, and being subject to the Navy Ordinance, 1961,
has/(have) committed the offence(s) in the said schedule mentioned; (and whereas I am of the
opinion that it is not practicable with due regard to discipline and the exigencies of the service
that the said offence (s) should be tried by a general or district court-martial);

I hereby convene a summary general court-martial to try the said

person(s), and to consist of officers hereunder detailed :-

President…… ………………………………………………………

Members…… ………………………………………………………..

Judge-Advocate (if any)…………………………………………….

(to be inserted only in cases falling under clause (b) of section 98 (1).)

Signature of convening officer

(b) Certificate of President as to proceedings

 I certify that the above court assembled at……………… on the……… day of………………..,
19…………. , and duly tried the person(s) named in the schedule, and that the plea, finding and
sentence in the case of (each)such person were as stated in the third and fourth columns of that
schedule.

I also certify that the members of the court, the judge-advocate, the witnesses, the interpreter,
and the officers under instruction (if any) were duly sworn/(or affirmed).

Signed at………..…., this……..……., day of……………19........

Signature of the President

(c) Confirmation

I have dealt with the finding(s) and sentence(s) in the manner stated in the last column of the said
schedule, and subject to what I have stated, I hereby confirm the above finding(s) and sentence(s).

*I direct that
the accused be
not committed
to
prison/(custody)
until further orders. see section 156 of the Ordinance.

*(to be struck out, if inapplicable.) Signature of confirming officer.

 (d) Promulgation

Promulgated and extracts taken at…………….. this…………day of…………………..,

19………….

Signature of officer incharge of Document

SCHEDULE

Date……………………………

No., rank, name, Offence Finding, and How dealt

and charged Plea sentence (if with by
ship/establishment convicted)* confirming
of the accused'
officer

(Signature)………………… President

(Signature). . . . . . . . . . . .

Convening Officer.

*(Recommendation to mercy, if any, to be inserted in this column.)

E.FORM OF STATEMENT AS TO CHARACTER AND PARTICULARS OF SERVICE
OF THE ACCUSED

(Reproduced in the notes to rule 50)

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

III. FORMS OF SUMMONS TO WITNESSES

(a) In the case of a summary of evidence

(Reproduced in the notes to rule 50.)

(b) In the case of a court-martial (section 116

of the Ordinance.)

(Reproduced in the notes to rule 208.)

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

III. FORMS OF OATHS AND AFFIRMATION

(Reproduced in the notes to rule 140.)

 FIFTH APENDIX

WARRANTS UNDER SECTIONS 143, 144, 145 AND

148 OF THE NAVY ORDINANCE, 1961

NOTE

The forms given in this appendix are to be amended, as necessary, to suit the requirements of
each case: (see Rule 4).

FORM A.

WARRANT under section 145 (1) of the Navy Ordinance, 1961, for commitment for safe
custody to civil prison a person subject to the Ordinance, sentenced to DEATH.

To

The Superintendent of the…………………………………... Prison

WHEREAS………………………. (No., rank, name) of

B.N.S…………………………… was by a general/(summary general) court-martia1 held

at……………….. convicted of the offence of………………………;

AND WHEREAS the said general/(summary general) court-martial on the……………… day

of……………. 19……………. passed the sentence of death upon the said……………… (name);

AND WHEREAS the said sentence has been duly confirmed by…………….. (name and
description of confirming authority) as required by law.

This is to require and authorise you, the said Superintendent, to receive and hold the
said……………………….. (name) into your custody in the said prison as by law is required,
together with this warrant, until such time as a further warrant in respect of the
said………………. (name) shall be issued to you; and for so doing this shall be your warrant.
 Given under my hand at……………..this
the……….......................................................……..day of….............................……
19…...

(Signature)

Commanding Officer.

(Or other officer mentioned in rule 245).

 FORM B.

WARRANT under section 145 (1) of the Navy Ordinance, 1961, for obtaining a person
sentenced to death from the custody of the civil prison.

To

The Superintendent of the…………………………………...Prison.

WHEREAS…………………………….. (No,. rank, name,) late of B.N.S...................... having

been sentenced to suffer death on the…………….. day of………….. 19…. by a general or
(summary general) court-martial held at…………….. is held in the said prison under a warrant
issued by……………………………;

AND WHEREAS the said sentence having been duly confirmed by…………………… (name
and description of confirming authority) as required by law, an order to carry out) the said
sentence has been issued to me……………………… (name and description of the officer to
whom the order is issued);

This is to require and authorize you) to deliver forthwith the said………………. (name) to the
officer (or master chief petty officer, chief petty officer or petty officer) bringing this
warrant………………

Given under my hand at…………….… this the……………….. day of…………… 19........

(Signature)

(0fficer to whom the order is issued).

**Enter name or designation of the officer who signed the original warrant.
 FORM C

ORDER" FOR CARRYING OUT A SENTENCE OF DEATH

TO

The Officer In-Charge…….......(military/naval/air force) Detention Barracks

at…………………………………………….

WHEREAS………………. (No., rank, name) of B.N.S…………... was by a general (summary

general) court-martial held at……………….. convicted of the offence of *…………………….*

AND WHEREAS the said general (summary general) court-martial on the…………. day
of………… 19……… passed the following sentence upon the said………….. (name), that is to
say……………….. (sentenced to be entered in full):……………………………………….

AND WHEREAS the said sentence has been duly confirmed by………………… (name and
description of confirming authority) as required by law.

This is to require and authorise you to receive the said…………… (name) into your custody
together with this order and there carry the aforesaid sentence of death into execution according
to law, and for so doing this shall be your authority.

The sentence shall be executed on the…………day of.............. 19……. ..at

………....hours,at……………….., (place of execution )

Given under my hand at…………this the……………day of……....……………..19..................

(Signature )
Confirming Officer

(Or; other officer mentioned in rule 245).

*If there are several offences, state all of them. The offence should be stated in the words of the
charge, on which the accused was convicted, but if modified by the finding, as so modified.

† Enter the date on which the original sentence was signed.

†† Enter any general or special instructions.
-------------------
 FORM D

WARRANT for use when the sentence of a person under sentence of death and committed to
custody in a civil prison, is commuted to a sentence of imprisonment to be served in the same
prison; (section 145 of the-Navy Ordinance, 1961).

To

The Superintendent of
the…………………………................................................................................……Prison.

WHEREAS………………….(No., rank, name) late of B.N.S........... is held in

the………………………….…………………….prison under a warrant issued
by………………………………(name and designation of officer who signed the original
warrant) in pursuance of a sentence of death passed upon him by general (summary general)
court-martial held at..........................on………………..;

AND WHEREAS……(name and designation of authority commuting the sentence) has in the
exercise of the power conferred upon him by the Navy Ordinance, 1961, passed the following
order regarding the aforesaid sentence;

that is to say:
............................................................................................................................................

(order to be set out in

full)……………………………......................................................…………………

This is to require and authorise you to keep the said. . . . . . .. . . . . . . (name) in your custody
together with this warrant, and there to carry into execution the punishment of imprisonment
under the said order according to law ; and for so doing this shall be your warrant. And this is
further to require and authorise you to return to me the original warrant of commitment in lieu
whereof this warrant is issued.

The period of such imprisonment will reckon from……...................(Enter date on which the
original sentence was signed).

Given under my hand at…………….this the …………………….day

of……………………….19……………….....
 (Signature)
Commanding Officer
 FORM E

WARRANT for use when a person who, after having been sentenced to death, has been
committed to custody in a civil prison is to be delivered into naval custody (for purpose other
than carrying out the sentence of death); (Section 145, Navy Ordinance, 1961).
To,

The Superintendent of the…………………………………...Prison.

WHEREAS……………… (No, rank, name) of B.N.S………............................…....is held in

the……………………….prison in pursuance of a sentence of death passed upon him by a
general (summary general) court-martial held
at……………………on…………………………..:

AND WHEREAS……………………(name and designation of authority issuing

order)…………………has in the exercise of the power conferred upon him by the Navy
Ordinance, 1961, passed the following order regarding the afore said sentence, that is to
say………………………(order to be set out in ful1)……......................

This is to require and authorise you to forthwith deliver the

said………………(name)………………….to the officer/(or Master Chief Petty officer, chief
petty officer or petty officer) bringing this warrant, and for your so doing this shall be your
sufficient warrant.

Given under my band at…………….this the………….day

of.……………….19……………................…...

(Signature)
Commanding Officer,
 FORM F

WARRANT for use when person who, after having been sentenced to death, has been
committed to custody in a civil prison, is to be released in accordance with orders made under
the Navy Ordinance, 1961.

To

The Superintendent of the…………………………………..Prison.

WHEREAS……………………(No., rank, name) late of B.N.S…...

……………..is held in the prison under a warrant issued by…………..

……................(name or designation of officer who signed the original warrant) in pursuance of a

sentence of death passed upon him by a general (summary general) court-martial held
at………..on…………..;

AND WHEREAS………………………..(name and designation of authority issuing order) has

in the exercise of the power conferred upon him by the Navy Ordinance, 1961, passed the
fo110wing order regarding the aforesaid sentence, that is to say;………………..(order to be set
out in full)……………………

This is to require and authorise you to forthwith release the said................ (name) from your
custody, unless he is liable to be detained for some other cause; and for your so releasing him this
shall be your sufficient warrant.

Given under my hand at………………this the……….day of………….19 ……………......

(Signature)
Commanding Officer.
 FORM G

WARRANT of commitment for use when prisoner is sentenced to be undergone in a civil a

rigorous or simple imprisonment which is to prison: (Section 143, Navy Ordinance, 1961)
To

The Superintendent of the………………………………. prison.

WHEREAS at a…………………………..* court-martial held at…………………..on

the………………...day of………..19 ..............

(No; rank, name) of B.N.S. …………………….. was duly convicted

of……………………………**

AND WHEREAS the said……………* court-martial on the..........

day of .19…..passed the following sentence upon the said……………………..(name) that is

to say.(sentence) to be entered in full, but without signature).

AND WHEREAS the sentence has been duly confirmed by...,.......... (name and designation of-
confirming authority) as requited by law.

This is to require and authorise you to receive the said………(name) into, your custody
together with this warrant and there to carry the aforesaid sentence of rigorous (or, simple)
imprisonment into execution according to law and for so doing this shall by your warrant.

The sentence has effect from (Enter date upon which the original sentence was signed).

Given under my hand at…………………….this the……….day of. ……….. .19. . ………… . . .

 (Signature)
Commanding Officer
(Or, other officer mentioned in rule 245)

*General, District or Summary-General.

** If there are several offences, state a1lof them. An offence should be stated in the words of the
charge on which the said person was convicted, but if modified by the finding, as so modified.

† Add, if necessary, with a remission of.

FORM H

WARRANT of commitment for use when a prisoner is sentenced to imprisonment which is to

be undergone in a military, naval or air force prison: (Section 143, Navy Ordinance, 1961).

To

The Officer in charge Military, (Naval or Air Force) Prison a (name of such prison).

WHEREAS at a…………………* court-martial held at …………on the day

of………..19…………(No: rank, name) of B. N. S . . . . . . . . . . . . . . . . was duly convicted
of……………….,**
AND WHEREAS the said……………..* court-martial on the......................... day
of…………………….19…............passed the following sentence upon the said………….
(name), that is to say………….. (sentence to be entered in full, but without signature);

AND WHEREAS the said sentence has been duly confirmed by………(name and designation
of confirming authority) as required by law.

This is to require and authorise you to receive the said……. (name) into your custody together
with this warrant and there to carry the aforesaid sentence of imprisonment into execution
according to law, and for so doing this shall be your warrant.

The sentence has effect from. . . . . . . . . . (Enter date upon which the original sentence was
signed).

Given under my hand at.. .. .. .. this the.. ............................. .. ... day of

…....................................…..19.. .. ..

Commanding Officer
(Or, other officer mentioned in rule 245)

* General, District or Summary-General.

** The offence is to be briefly stated here, as "desertion" "theft" "receiving stolen property"
"fraud" "disobedience of lawful command" or as the case may be.

† Add, if necessary, with a remission of.

FORM I
WARRANT for use when a sentence of imprisonment is varied by superior authority; (Section
148, Navy Ordinance, 1961).

To

The Superintendent of the………………………………. Prison.

WHEREAS…………….(No., rank; name) late of B.N.S................

…………………is confined in the. .. . . . . . .. . . .. . .. . prison under a warrant issued by. . . . . . . .

. . . . . . . . (name and designation of officer who signed the original warrant), in pursuance of a
sentence of……………*passed upon him by a………………….**court-martial held
at……………………on………………………

AND WHEREAS…………….(name and designation of authority varying the sentence) has in

the exercise of the powers conferred upon him by the Navy Ordinance, 1961, passed the
following order regarding the aforesaid sentence, that is to say.. .. . .. . .. . .. .. . .. .. .. (order to be
set out in full).

This is to require and authorise you to keep the said. . . . . . . . . . . . (name) in your custody
together with this warrant and there to carry into execution the punishment of rigorous (or,
simple) imprisonment under the said order according to law, and for so doing this shall be your
warrant. The period of such imprisonment shall reckon from the (Enter date upon which the
original sentence was signed).
Given under my hand at…………………...this the………day of
…………………….19................

Commanding Officer,
(Or, other officer mentioned in rule 245

*Enter original sentence. If this was reduced by the confirming officer or other superior authority
the sentence should be entered thus: "2 years' rigorous imprisonment reduced by the confirming
officer to 1 year"
**General, District or Summary-General.

-----------------
 FORM J

WARRANT for use when a prisoner is pardoned or his trial set aside, or when the whole
sentence or the unexpired portion thereof, is remitted; (Section 148, Navy Ordinance, 1961).

To

The Superintendent of the……………………………………Prison.

The Officer in Charge Military/Naval/Air Force Detention Barracks.

WHEREAS ................... . (No., rank, name) late of B.N.S................... ... is confined in the
.. . .. . .prison (detention barracks) under a warrant issued by ………………….(name and
designation of officer who signed the original warrant) in pursuance of a sentence
of…………….*passed upon him by a ………………. ** court-martial held at.. . .. .,

AND WHEREAS………………*has, in the exercise of the powers conferred upon him by the
Navy Ordinance, 1961, passed the following order regarding the aforesaid sentence, that is to
say………….(order to

be set out in full).

This is to require and authorize you to forthwith discharge the said ... . .. . . . (name) from your
custody, unless he is liable to be detained for some other cause; and for your so discharging him
this shall be your sufficient warrant.

Given under my hand at.. .. . .. .. .. . this the.. .. .. .. .. .. day of……………….19……………....

Commanding Officer,
 (Or, other officer mentioned in rule 245)
*Enter original sentence. If this was reduced by the confirming officer or other superior
authority the sentence should be entered thus: "2 years rigorous imprisonment reduced by
confirming officer to 1 year".

**General, District or Summary-General.

*Name and designation of authority pardoning the prisoner, mitigating the sentence or setting
aside the trial.

FORM K

WARRANT for use when prisoner is to be delivered into Military, Naval or Air Force custody:
(sec. 146, Navy Ordinance, 1961.)

To

The Superintendent of the………………………………. Prison.

WHEREAS…………(No., rank, name) late of B.N.S. . . . . . . is confined in the. . . . . . . . . . . . .

. prison under a warrant issued by. . . . . .(enter name and designation of officer who signed the
original warrant) in pursuance of a sentence of……………*passed upon him by
a………………**court-martial held at……………….on.......................

AND WHEREAS.. .. .., .. ... . .(name and designation of authority passing the order) has in the
exercise of the powers conferred upon him by the Navy Ordinance, 1961, passed the following
order regarding the aforesaid sentence, that is to say .. .. .. .. .. . .. . .. ... (order to he setout in full).

This is to require and authorize you to forthwith deliver the said. . . . . . . . . . . . .(name) to the
officer (or, MCPO, chief petty officer, or petty officer) bringing this warrant,

Given under my hand at this the………….day of …………...19…...

 Commanding Officer,

(Or, other officer mentioned in rule 245).

*Enter original sentence,. If this was reduced by the confirming officer or other superior authority
the sentence should be entered thus: "2 years" rigorous imprisonment reduced by confirming
officer to 1 'year".

**General, District or Summary-General.

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

FORM L

WARRANT of commitment of person guilty of contempt of court-martial when a fine is

imposed: [Sec. 95(2) of the Navy Ordinance, 1961, and Sec. 480 of the Code of Criminal
Procedure, 1898].

To

The Superintendent of therightright…………………………………...Prison.

WHEREAS at a……………….. *court-martial held on this day at. . . . . . . . (name and

description of the offender) in the presence (or, view) of the court, committed wilful contempt;

rightrightAnd WHEREAS for such contempt the said………. .(name of offender) has been
adjudged by the court to pay a fine of Taka. . . . . . . . . . . . or, in default to suffer simple
imprisonment for the space of (state the number of months or days);
 This is to require and authorize you, the Superintendent of the said jail to receive the
said…………….(name of offender) into your custody, together with this warrant, and him to
safely keep in the said jail for the said period of…………………. (term of imprisonment) unless
the fine is sooner paid, and on receipt thereof, forthwith to set him at liberty, returning this
warrant with an endorsement certifying the manner of its execution.
Given under my hand at. . . . . . . . . . . . this the........................ . . .. . . day of. .. ................ . .
19………………..

(Signature)
President,
*……….court-
martial.

*General, District or Summary-General.

FORM M

WARRANT OF ARREST

(( Reproduced in the notes in rule 62).

SIXTH APPENDIX

FORMS OF COURT-MARTIAL WARRANTS

1. WARRA for convening and confirming General –Court Martial under the Navy Ordinance,
1961.

To

The Officer, not being under the rank of Captain, commanding. ................................... . . .

WHEREAS I am empowered by section 96 of the Navy Ordinance 1961 (herein referred to

as the said Ordinance) to direct any warrant to any prescribed officer of the Bangladesh Navy,
under my command giving him an authority to convene general court-martial for the trial under
the said Ordinance of any person under the command of such last mentioned officer who is
subject to the said Ordinance and also to execute in respect of the proceedings of such court-
martial the power of confirming the findings or sentences thereof in accordance with the said
Ordinance and with such restrictions reservations or conditions as I may think fit.

Now THEREFORE, in exercise of the said powers I do hereby authorize and empower you (or
the officer on whom your command may devolve during your absence not under the rank of
Captain) from time to time as occasion may require to convene general court-martial, for the trial
in accordance with the said Ordinance and the rules made there under of any person under your
command who is subject to the said Ordinance and is charged with any offence mentioned in the
said Ordinance and is liable to be tried by a general court-martial.

AND I do hereby empower you (or the officer on whom your command may devolve during
your absence not under the rank of Captain) to receive the proceedings of such court-martial and
confirm the findings and sentences thereof and to exercise as respects these courts and the-
persons tried by them the powers created by the said Ordinance in the confirming officer in such
manner as may by best for-the good of the service.

PROVIDED always that if by the sentence of any genera I court-martial an officer has - been
sentenced to suffer death, imprisonment, or to be dismissed from the service or any sailor has
been sentenced to suffer death or imprisonment for more than two years you shall in such case as
also in the case of any other general court-martial in which you shall think fit so to do withhold
confirmation and transmit the proceedings to me;

AND for so doing this shall be as well to you as to all others whom it may concern a sufficient
warrant.

Given under my hand at.. .. . .. .. .. .. . this the……........................................….day of.. ............. ..

.. 19...

(Signature)
Chief of the Naval Staff
Bangladesh Navy.
II. WARRANT for convening and confirming District Court-Martial under the Navy Ordinance
1961.

To

The Officer not being under the rank of Lieutenant Commander, commanding
...................................................

WHEREAS I am empowered by section 97 of the Navy Ordinance 1961 (hereinafter referred

to as the said Ordinance) to direct any warrant to any prescribed of6cer of the Bangladesh Navy
under my command giving him as authority to convene district court-martial for the trial under
the Ordinance of any person under the command of such last mentioned officer who is subject to
the said Ordinance and also to execute in respect of the proceedings of such court-martial the
power of confirming the findings or sentences thereof in accordance with the said Ordinance and
with such restrictions reservations of conditions as I may think fit;

Now THEREFORE, in exercise of the said powers, I do hereby authorize and empower you (or
the officer on whom your command may devolve during your absence not under the rank of
Lieutenant Commander) from time to time as occasion may require to convene district court-
martial for the trial in accordance with the said ordinance and the rules made there under of any
person under your command who is subject to the said Ordinance and is charged with any offence
mentioned in the said Ordinance and is liable to be tried by a district court-martial.

AND I do hereby empower you (or the officer on whom your command may devolve during
your absence not under the rank of Lieutenant Commander) to receive the proceedings of such
court-martial and confirm the findings and sentences thereof and to exercise as respects these
courts and the persons tried by them, the powers created by the said Ordinance in the confirming
officer, in such manner as may be best for the good of the service;

AND for so doing, this shall be, as well to you as to all 9thers whom it may concern. a sufficient
warrant.

Given under my hand at................................this the...................................day

of.................................19......

(Signature)
 Chief of the Naval Staff

Bangladesh Navy

SEVENTH APPENDIX

PRESCRIBED FORM OF NOTICE UNDER CLAUSE(2) OF

SECTION 169 OF THE NAVY ORDINANCE,

1961

(Reproduced in the notes to the relevant section).

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

EIGHT APPENDIX

PRESCRIBED FORM OF ENROLMENT

Under Section 69 of the

Navy Ordinance, 1961

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

ENROLMENT FORM F (SP) - 1

IN

BANGLADESH NAVY
 OF

(Name in full in block letters)

as boyleftleft*

(*Insert Boy or a Artificer 'Apprentice).

(Direct entry man, as applicable).

Note :- The following questions are to be put to the Recruit before Enrolment and any alteration,
deletion or correction is to be initialled by the enrolling officer.

1. (a) What is your name in full and 1. (a) ………….................

surname, if any ? …………...............

(b) What is your nickname or alias (b)………….

if any? (To be inserted in block

letters).

2. What is your father's name? (To be 2. …………….

inserted in block letters). ……………….

3. What is your:

(a) Age. 3. (a)………………

(b) Date of birth. (b)…………….

If date of birth is not known,

state year

(c) Place of birth (c)……………..

Town/Village ……………...

Union Name & Number Police Station ……………..

District.

4. What are your educational qualification? 4. ………………

…………………..
5. Are you submitting any educational
Certificate?
If so give details.

6. (a) Are
you a
citizen of
Bangladesh 6. (a) …………………..
by birth, descent, migration or
naturalization?

(b) Have you are a citizen by migration (b)………………..

or naturalization :

(i) Have
you been
registered
as (i)…………..
a citizen of Bangladesh or do
you claim exemption from
registration?

(ii) What is the date of your (ii)……………

arrival in Bangladesh 7

(iii) What was the place of your (iii)……………..

birth and the address of your

permanent place of residence

before arrival in Bangladesh?

7. What is your religion, caste and tribe? 7……………….

8. What is your permanent address in Bangladesh?

(a) Village/Mohalla 8. (a) ...............

(b) Union name & number (b) ……….

(c) Post Office (c) . .... . . ..

(d) Thana/Upazila (d) . .. . . . .

(e) pargana or Tehsil (e) .......

(f) District (f) ………….

9. (a) Are you married? 9. (a)....................

(b) If so, (i) When? (Date) (b) (i) ...............

(ii) Nationality of wife? (ii) ................

Note :-Candidates who are married are not eligible for enrolment as Boys or Apprentices, nor are
they permitted to marry until attaining man's sailor. Candidates who are married to or have
entered into a promise of marriage with a person who is not a citizen of Bangladesh are also
not eligible for enrolment.

(c) Are
you aware
that
throughout
your term
of Naval (c)………….
Service you are not permitted to marry, or enter
into a promise of marriage with, a person who is
not a citizen of Bangladesh, and that otherwise
disciplinary action (including dismissal from (Service)
will be taken against you?

10. What is the name of your;

(a) Next of kin. (Wife, if married) 10.(a)……….
(b) Relationship. (b)……….
(c) His or her full address. (c)………
11. Give the names and addresses of two 11. responsible persons from when your character
may be verified:

(1) Name . .. ... . ……………….

Full Address . . . . . . . . . . . . .

(2) Name.....................................
Full Address....................
12. Do
you
now
belong
to any
of the
armed 12…………………
forces of Bangladesh, or their Reserves,
or the Police force, or any other force
raised or maintained in Bangladesh?

13. Have you ever served in any forces named in question 12 above, or

similar forces of any other country, if so,

(i) What was your last unit? (i) …………............

(ii) What was the reason for termination (ii) ………………..
of your services? Produce your discharge or
other certificate of termination of service.
14. (a)
Are
you
now in
receipt
of or
have 14.(a).........…..………
you ever received a disability or
other pension, gratuity, retaining
fee, bounty, from the Government
or any foreign Government?
(b) If so, give details. (b) ……………..

15. (a) Do you desire your former service 15. (a)………………

as
declared
by you
to be
reckoned
towards
any
benefit
in pay,
pension
or gratuity or any other benefit,
if the same be admissible under the rules ?
(b) If
so, are
you
willing
to
refund (b)……………… pension, gratuity, etc. (declared by
the you)
in accordance with the current rules ?

16. Are
you at
present
employed
in civil 16.........................................
capacity by the Government? If so, can you
furnish written permission to leave your
employment?

(N. B.-If permission has been accorded, attach it and mention it.)

17. Are you indentured as an apprentice? 17.......................

(NOTE ;-If the answer is "Yes" the recruit should not be accepted unless written permission to
join Bangladesh Navy is produced from the company to which he is indentured.)

18. Have
you ever
been
arrested,
prosecuted. 18. ……………..
convicted, bound over, interned, externed,
or otherwise dealt with under any law or

rules in force in Bangladesh or in any other

country? If so, state particulars.

19. Are you aware that, during your service, 19. …………….

you are not permitted to belong to or to

subscribe in aid of, any political party,

association or movement?

20. Are you willing to be vaccinated, re-vacci- 20. ……………..

nated and inoculated or re-inoculated ?

21. Are
you
willing
to serve
overseas
in any 21. ……………..
part of the world and go wherever order,

by land, sea or air, and not to allow any

caste usage to interfere with your Naval

duty?

22. Are you prepared to eat food cooked in 22. ………………

a common galley (cook house) in which

food is cooked for all communities by
cooks of any religion?

(NOTE :- Meat supplied will be "halal" in messing organized by the Bangladesh Navy.)
23. Are you aware that all advancements 23. ……………

(promotions) in the Bangladesh Navy are

subject to vacancies even though a candidate

may be fully qualified in all respects

for advancement?

24. Do
you
understand
that
throughout
your 24. ……………...
period of Naval Service, apart from your
professional duties, you will be required to
clean. a11 parts of your ship of establishment
except latrines, and that you will be required
to wait upon yourself and others at meal times,
clean your own eating utensils, wash your own
clothes and make your own bed ?
(NOTE :-Cleaning means sweeping, scrubbing, washing, wiping of decks (floors), mess and
other furniture, etc., polishing metal work, chipping, painting, _etc.)

25. Are you aware that on enrolment you 25. ………………

will be subject to the Navy Ordinance,

1961, and the rules, regulations, instructions
and orders made or issued there under and
in force from time to time?

26. Are you willing to be enrolled in the 26. ………………

Bangladesh Navy?
27. * Are you willing to serve in the 27. ……………..

Branch?

or
*Are you willing to serve in any
Branch for which you may be found
suitable by the competent
naval authority?
(*Delete whichever is not applicable.)

28.
Are
you
aware
that
neither
you
nor 28. …………….
your parents or other relations will be
entitled to request for the
change of your Branch.

RECRUIT'S DECLARATION

I…………………………………..son of ………………………do

solemnly declare and affirm that the answers given by me to the questions in the above enrolment
form are true and correct. I understand that if they are found to be false, I shall be liable to be
punished under sections 69 of the Navy Ordinance, 1961.

2. I do hereby agree to be enrolled as a………………….., from………, 19.. .., and

undertake to .serve honestly and faithfully as a Sailor in the Bangladesh Navy for a period of
…………………… **years calculated from the date of my attaining the age of 17 years or the
date of completion of my probationary period, which-ever be later, provided my services are so
long required.

[Note:-(Insert 'Artificer Apprentice', 'Boy' or 'Direct entry man’ as applicable.) **(Insert

EIGHTEEN for Artificer Apprentice and TWELVE for the others).]
 3. I understand that I will not be entitled to be discharged on expiry of my term of engagement:

(a) if war is imminent or existing; or

(b) if the strength of the Branch of service to which I belong is five percent or more below
its sanctioned strength or will be so on my discharge; or

(c) if agree to re-engage in accordance with the regulations.

4. I further understand that in the event of my deserting, the period between the date or
desertion and that of apprehension or surrender shall not be taken into account in determining the
length of service rendered by me.

5. I also understand that on expiry of my term of engagement or re-engagement, I shall be

liable to be transferred to the Bangladesh Naval Fleet Reserve for such period and for such
purposes as may be specified in the regulations.

6. Witness my hand at.. .. .. . . .. . .. .. . .. this.. .. . .. .. .. .. . . … day

of..........................................19………

Witnesses :

…..……………………..

Recruit’s signature in full

1. ………………………
(Signature and rank of Enrolling Officer.)
2. ................................

Designation. §

Full Address. . . . . . . . . . . . . . . . . . . .

$ Place of enrolment.
†† Date of enrolment.
The witness should be a responsible person e. g. a Magistrate, a Gazetted Officer,
Principal of a college, Headmaster of a school, Tehsildar, a Police Officer, etc., and must
personally know the individuals whose signatures he attests. He must be able to vouch for the
relationship or identify (in the case of legal guardian) of the person who affixes his signature
§ of thumb impression on the above certificate.

FORM OF CONSENT
 I,. . . . . . . . . . . . . . . . . . son of.. . . . . . . . . . . . . ., do hereby solemnly declare and affirm that my
son/ward …........................................has my permission to be enrolled for service in the
Bangladesh Navy as herein before stated in the enrolment form. I further certify that the answers
given by my son/ward to the questions in the above enrolment form are true and, correct.

Father/Mother/Legal Guardian's
Signature in full.

Place …………....... Full Address...............................

Date. ............. 19 ……………………........………

Witnesses :-

1. ..............................

(Signature and rank of Enrolling Officer).

2. ..............................
Designation.*
Full Address. . . . . . . . . . . . . . . . . .

*The witness should be a responsible person e.g. Magistrate, a Gazetted Officer, Principal of a
College, Headmaster of a School, a Tehsildar, a Police Officer, etc., and must personally known
the individuals whose signatures he attests. He must be able to vouch for the relationship or
identity (in the case of legal guardian) of the person who affixes his signature or thus impression
on the above certificate

CERTIFICATE OF ENROLING OFFICER

The conditions of-enrolment were read and explained to the above mentioned son of by me (or
in my presence). After cautioning him that if he made any false answer to any of the
questions in the enrolment form he shall be liable to be punished under section 69 of the Navy
ordinance 1961. I have put the above questions to him and his answer to each question has been
duly entered. I am satisfied that he fully understands all the questions put to him and agrees to the
conditions of enrolment, as mentioned in his declaration. Signed at…………………..this
the……………………………day of................

19.................
(Signature and rank of ……………….

Enrolling Officer)

(Delete whichever is not applicable.)

§ Place of enrolment,

S Date of enrolment.