The Navy Act, 1957
Administered Ministry: Ministry of Defence / Department of Military Affairs
Section
Section 117 Announcement of the finding
(1) When the court has considered the finding, the court shall be re-assembled and the president shall inform the trial judge advocate in open court what is the finding of the court as ascertained in accordance with section 124.
(2) The court shall give its findings on all the charges on which the accused is tried.
(2) The court shall give its findings on all the charges on which the accused is tried.
Section 118 Drawing up of the finding
(1) The trial judge advocate shall then draw up the finding as announced by the court.
(2) The finding so drawn up shall be signed by all the members of the court by way of attestation notwithstanding any difference of opinion there may have been among the members and shall be countersigned by the trial judge advocate.
(3) Where the finding on any charge is one of not guilty the court shall acquit the accused of that charge. (4) If the accused is acquitted of all the charges, the court shall, after signing the findings as provided in sub-section (2), be dissolved.
(5) Neither the court nor the trial judge advocate shall announce in open court whether the finding was unanimous or not; but the president shall make a record of the division of voting on each finding without disclosing the vote or opinion of any particular member of the court-martial and such record shall be communicated to the trial judge advocate for transmission to the Judge Advocate-General of the Navy.
(2) The finding so drawn up shall be signed by all the members of the court by way of attestation notwithstanding any difference of opinion there may have been among the members and shall be countersigned by the trial judge advocate.
(3) Where the finding on any charge is one of not guilty the court shall acquit the accused of that charge. (4) If the accused is acquitted of all the charges, the court shall, after signing the findings as provided in sub-section (2), be dissolved.
(5) Neither the court nor the trial judge advocate shall announce in open court whether the finding was unanimous or not; but the president shall make a record of the division of voting on each finding without disclosing the vote or opinion of any particular member of the court-martial and such record shall be communicated to the trial judge advocate for transmission to the Judge Advocate-General of the Navy.
Section 119 Evidence of character and previous convictions
(1) If the accused is found guilty on any or all of the charges, the court before awarding punishment may call evidence as to the previous character and qualifications of the accused and in addition to any oral evidence of general character that may be adduced, shall take into consideration the following documents which shall be read by the trial judge advocate in open court:--
(a) for any officer--
(i) any entries against him relating to his previous convictions in the list of officers who have been tried by court-martial; and
(ii) any previous entries against him in the log of the ship to which he may have belonged when the offence or offences for which he is being tried were committed and also any documents, other than such entries in the log, of the nature of a definite censure by superior authority, which log and documents the prosecution is to produce; and
(iii) any certificate or other documents of character which the accused may produce;
(b) for a 1[sailor]--
(i) the entries against him in the conduct and offences record sheets prior to the date of the offence charged, but subsequent to his joining his present ship, with character assessed from the previous 31st day of December to the date of the offence for which he may be under trial but excluding all consideration of the latter;
(ii) his certificate of service; and
(iii) any entries against him relating to his previous convictions in the list of those who have been tried by court-martial.
(2) The accused may then make a statement in mitigation of punishment and lead any evidence of character if he has not already done so before the finding.
(a) for any officer--
(i) any entries against him relating to his previous convictions in the list of officers who have been tried by court-martial; and
(ii) any previous entries against him in the log of the ship to which he may have belonged when the offence or offences for which he is being tried were committed and also any documents, other than such entries in the log, of the nature of a definite censure by superior authority, which log and documents the prosecution is to produce; and
(iii) any certificate or other documents of character which the accused may produce;
(b) for a 1[sailor]--
(i) the entries against him in the conduct and offences record sheets prior to the date of the offence charged, but subsequent to his joining his present ship, with character assessed from the previous 31st day of December to the date of the offence for which he may be under trial but excluding all consideration of the latter;
(ii) his certificate of service; and
(iii) any entries against him relating to his previous convictions in the list of those who have been tried by court-martial.
(2) The accused may then make a statement in mitigation of punishment and lead any evidence of character if he has not already done so before the finding.
1. Subs. by Act 53 of 1974, s. 2, for "seaman" (w.e.f. 16-12-1974).
Section 120 Consideration of the sentence
(1) The Court shall then retire and consider and determine on the punishment proper to be inflicted in conformity with the finding, and all the members of the court, whether they have voted for an acquittal or not, shall vote on the question of what punishment is proper to be awarded for the offence of which the accused has been found guilty.
(2) The trial Judge advocate shall sit with the court while they are considering the sentence and assist the court in the determination of the sentence but shall not vote thereon.
(2) The trial Judge advocate shall sit with the court while they are considering the sentence and assist the court in the determination of the sentence but shall not vote thereon.
Section 121 Announcement of the sentence
(1) When the court has decided on the sentence whether unanimously or by majority, the trial Judge advocate shall draw up the sentence in the prescribed form which shall be signed by every member of the court by way of attestation notwithstanding any difference of opinion there may have been among the members and shall be countersigned by the trial Judge advocate.
(2) The court shall then be reassembled and the accused brought in and the trial Judge advocate shall by direction of the court pronounce the sentence.
(3) The accused shall then be removed and the court dissolved.
(2) The court shall then be reassembled and the accused brought in and the trial Judge advocate shall by direction of the court pronounce the sentence.
(3) The accused shall then be removed and the court dissolved.
Section 122 Adjournment
(1) A court-martial may, if it appears to the court that an adjournment desirable, be adjourned accordingly, but except where such an adjournment is ordered, shall sit from day to day with the exception of Sundays until the trial is concluded, unless prevented from so doing by stress of weather or unavoidable accident.
(2) The proceedings of a court-martial shall not, after the commencement of a trial, be delayed by the absence of a member:
Provided that not less than four members are present: and
Provided further that if any member is absent from any part of the trial, he shall not thereafter take any part in the proceedings.
(2) The proceedings of a court-martial shall not, after the commencement of a trial, be delayed by the absence of a member:
Provided that not less than four members are present: and
Provided further that if any member is absent from any part of the trial, he shall not thereafter take any part in the proceedings.
Section 123 Provisions relating to dissolution of courts-martial
(1) A court-martial assembled under this Act shall be dissolved--
(a) when the number of members comprising the court is after the commencement of a trial reduced below four;
(b) by the prolonged illness of the president, trial judge advocate or the accused;
(c) by the death of the president or the trial judge advocate;
(d) on the making of a report under sub-section (2) of section 143.
(2) Whenever a court-martial is dissolved by virtue of sub-section (1), the accused may be retired.
(a) when the number of members comprising the court is after the commencement of a trial reduced below four;
(b) by the prolonged illness of the president, trial judge advocate or the accused;
(c) by the death of the president or the trial judge advocate;
(d) on the making of a report under sub-section (2) of section 143.
(2) Whenever a court-martial is dissolved by virtue of sub-section (1), the accused may be retired.
Section 124 Ascertaining the opinion of the court
(1) Subject to the provisions of sub-sections (2) and (3), every question for determination by a court-martial shall be decided by the vote of the majority:
Provided that where there is an equality of votes, the decision most favourable to the accused shall prevail.
(2) The sentence of death shall not be passed on any offender unless four at least of the members present at the court-martial where the number does not exceed five, and in all other cases a majority of not less than two-thirds of the members present, concur in the sentence.
(3) Where in respect of an offence, the only punishment which may be awarded is death, a finding that a charge for such offence is proved shall not be given unless four at least of the members present at the court-martial where the number does not exceed five, and in all other cases a majority of not less than two-thirds of the members present, concur in the finding.
Provided that where there is an equality of votes, the decision most favourable to the accused shall prevail.
(2) The sentence of death shall not be passed on any offender unless four at least of the members present at the court-martial where the number does not exceed five, and in all other cases a majority of not less than two-thirds of the members present, concur in the sentence.
(3) Where in respect of an offence, the only punishment which may be awarded is death, a finding that a charge for such offence is proved shall not be given unless four at least of the members present at the court-martial where the number does not exceed five, and in all other cases a majority of not less than two-thirds of the members present, concur in the finding.
Section 125 Finding that the offence was committed with intent involving less degree of punishment
Where the amount of punishment for any offence depends upon the intent with which it has been committed and any person is charged with having committed such an offence with an intent involving a greater degree of punishment, a court-martial may find that the offence was committed with an intent involving less degree of punishment and award such punishment accordingly.
Section 126 Alternative findings
If the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under section 91, he may be convicted of the offence which he is shown to have committed although he was not charged with it.
Section 127 Finding lesser offence proved on charge of greater offence
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) 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 although he was not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such an offence, although the attempt is not separately charged.
(2) 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 although he was not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such an offence, although the attempt is not separately charged.
Section 128 Transmission of proceedings to the Judge Advocate General of the Navy
The trial Judge advocate shall transmit in accordance with the prescribed procedure with as much expedition as may be, the original proceedings or a complete and authenticated copy thereof and the original sentence of every court-martial attended by him to the Judge Advocate General of the Navy to be dealt with by him in accordance with the provisions of Chapter XV.
Section 129 Right of accused to copy of proceedings and sentence
Every person tried by a court-martial and convicted shall be entitled on demand to one copy of the proceedings and sentence of such courtmartial free of cost but no such demand shall be allowed after the lapse of one year from the date of the final decision of such court.
Section 130 Application of the Evidence Act
Subject to the provisions of this Act, the Indian Evidence Act, 1872 (1 of 1872), shall apply to all proceedings before a court-martial.
Section 131 Accused competent witness for defence
A person of an offence before a court-martial shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:
Provided that--
(a) he shall not be called as a witness except on his own request in writing; or
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial.
Provided that--
(a) he shall not be called as a witness except on his own request in writing; or
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial.
Section 132 Judicial notice
A court-martial may take judicial notice of any matter within the general naval, army or air force experience and knowledge of the members.
Section 133 Presumption as to certain documents
(1) Whenever it is necessary for the purposes of either the prosecution or the defence to prove the contents of any voucher, receipt, account, muster, ship's book, letter, signal, telegram or other document made or kept in pursuance of any Act of the legislature, any regulations framed under this Act or of the custom of the service, a copy of the same purporting to be signed and certified as a correct copy by the officer for the time being commanding the ship in which the same was made or kept or by a Secretary to the Central Government, may be received as evidence of such document and of the matters, transactions and accounts therein recorded.
(2) A Navy List or Gazette or other official document purporting to be published by authority of the Central Government or the Chief of the Naval Staff shall be evidence of the status and rank of officers therein mentioned and of any appointment held by such officers until the contrary is proved.
(3) Where it is shown that a person is borne on the books of a ship of the Indian Navy, such fact shall be evidence that such person is subject to naval law until the contrary is proved.
Explanation.-- In this section, the term "books of a ship" shall include any official book, document or list purporting to contain the name or names of persons appointed to the ship.
(4) Where any person subject to naval law is being tried on a charge of desertion, improperly leaving his ship, or absence without leave and such person has surrendered himself into custody of or has been apprehended by any person subject to naval law or by a person subject to the law relating to the Government of the regular Army or the Air Force, a certificate purporting to be signed by such person and stating the fact, date and place of such surrender or apprehension shall be evidence of the matters so stated unless the contrary is proved.
(5) Where any person subject to naval law is being tried on a charge of desertion, improperly leaving his ship, or absence without leave and such person has on arrest or surrender been taken to a police station, a certificate purporting to be signed by the officer-in-charge of the station and stating the fact, date and place of such surrender or apprehension shall be evidence of the matters stated unless the contrary is proved.
1[(6) Any document purporting to be a report under the hand of:
(a) any Chemical Examiner or Assistant Chemical Examiner to the Government;
(b) the Chief Inspector of Explosives;
(c) the Director of Finger Print Bureau;
(d) the Director of Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government,
uponany matter or thing duly submitted to him for examination or analysis, may be used an evidence in any proceeding under this Act.
(7) The statement of a naval, army or air force medical officer taken and attested by the commanding officer of a ship or establishment may be given in evidence in any proceeding under this Act:
Provided that the court may, if it thinks fit, and shall if so required by the prosecutor or the accused, summon and examine such medical officer as to the subject-matter of his statement.
(8) If it is proved that an offender under this Act 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 person who might appear to him to be acquainted with the case and record their depositions on oath and any such deposition may on the arrest of such person be used in evidence against him in any proceeding under this Act, 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.
(2) A Navy List or Gazette or other official document purporting to be published by authority of the Central Government or the Chief of the Naval Staff shall be evidence of the status and rank of officers therein mentioned and of any appointment held by such officers until the contrary is proved.
(3) Where it is shown that a person is borne on the books of a ship of the Indian Navy, such fact shall be evidence that such person is subject to naval law until the contrary is proved.
Explanation.-- In this section, the term "books of a ship" shall include any official book, document or list purporting to contain the name or names of persons appointed to the ship.
(4) Where any person subject to naval law is being tried on a charge of desertion, improperly leaving his ship, or absence without leave and such person has surrendered himself into custody of or has been apprehended by any person subject to naval law or by a person subject to the law relating to the Government of the regular Army or the Air Force, a certificate purporting to be signed by such person and stating the fact, date and place of such surrender or apprehension shall be evidence of the matters so stated unless the contrary is proved.
(5) Where any person subject to naval law is being tried on a charge of desertion, improperly leaving his ship, or absence without leave and such person has on arrest or surrender been taken to a police station, a certificate purporting to be signed by the officer-in-charge of the station and stating the fact, date and place of such surrender or apprehension shall be evidence of the matters stated unless the contrary is proved.
1[(6) Any document purporting to be a report under the hand of:
(a) any Chemical Examiner or Assistant Chemical Examiner to the Government;
(b) the Chief Inspector of Explosives;
(c) the Director of Finger Print Bureau;
(d) the Director of Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government,
uponany matter or thing duly submitted to him for examination or analysis, may be used an evidence in any proceeding under this Act.
(7) The statement of a naval, army or air force medical officer taken and attested by the commanding officer of a ship or establishment may be given in evidence in any proceeding under this Act:
Provided that the court may, if it thinks fit, and shall if so required by the prosecutor or the accused, summon and examine such medical officer as to the subject-matter of his statement.
(8) If it is proved that an offender under this Act 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 person who might appear to him to be acquainted with the case and record their depositions on oath and any such deposition may on the arrest of such person be used in evidence against him in any proceeding under this Act, 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. Subs. by Act 23 of 2005, s. 5, for sub-section (6) (w.e.f. 23-6-2005).
Section 134 Summoning of witnesses
(1) Every person who may be required to give evidence or produce a document before a court-martial shall be summoned in the prescribed manner in writing under the hand of the Judge Advocate General of the Navy or the trial judge advocate.
(2) Every person who may be required to give evidence before a commanding officer or the officer preparing a summary of evidence in accordance with the regulations made under this Act or before a board of inquiry shall be summoned in the prescribed manner by writing under the hand of the Judge Advocate General of the Navy or the senior officer in the station or such other officer prescribed in this behalf.
(3) In the case of a witness subject to naval law or to the law relating to the Government of the regular Army or the Air Force, the summons shall be served in the manner prescribed.
(4) In the case of any other witness, the summons shall be served either in the prescribed manner, or it shall be sent to the magistrate within whose jurisdiction the witness may be or resides and such magistrate shall give effect to the summons as if the witness were required in the court of such magistrate.
(5) When a witness is required to produce any particular document or thing in his possession or power, the summons shall describe it with reasonable precision.
(6) Every person not subject to naval law who may be summoned as aforesaid shall be allowed and paid such reasonable expenses as may be prescribed.
(7) Nothing in this section shall be deemed to affect the operation of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or to apply to any document in the custody of the postal or telegraph authorities.
(2) Every person who may be required to give evidence before a commanding officer or the officer preparing a summary of evidence in accordance with the regulations made under this Act or before a board of inquiry shall be summoned in the prescribed manner by writing under the hand of the Judge Advocate General of the Navy or the senior officer in the station or such other officer prescribed in this behalf.
(3) In the case of a witness subject to naval law or to the law relating to the Government of the regular Army or the Air Force, the summons shall be served in the manner prescribed.
(4) In the case of any other witness, the summons shall be served either in the prescribed manner, or it shall be sent to the magistrate within whose jurisdiction the witness may be or resides and such magistrate shall give effect to the summons as if the witness were required in the court of such magistrate.
(5) When a witness is required to produce any particular document or thing in his possession or power, the summons shall describe it with reasonable precision.
(6) Every person not subject to naval law who may be summoned as aforesaid shall be allowed and paid such reasonable expenses as may be prescribed.
(7) Nothing in this section shall be deemed to affect the operation of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or to apply to any document in the custody of the postal or telegraph authorities.
Section 135 Commissions for examination of witnesses
(1) Whenever in the course of a trial by courtmartial, it appears to the trial judge advocate 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 under the circumstances of the case would be unreasonable, the trial judge advocate may dispense with such attendance and may apply to the Judge Advocate General of the Navy to issue a commission to 1[any metropolitan magistrate or judicial magistrate of the first class] within the local limits of whose jurisdiction such witness resides, to take the evidence of such witness.
(2) The trial in such an event may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.
(3) The Judge Advocate General of the Navy on receipt of an application under sub-section (1) may, if he thinks fit, issue a commission to the 2[metropolitan magistrate or judicial magistrate of the first class or an authority exercising the powers equivalent to those of a judicial magistrate of the first class under the Code of Criminal Procedure, 1973 (2 of 1974),] for the examination of the witness.
(4) The magistrate or authority to whom the commission is issued or 3[if he is a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, he or such metropolitan magistrate or judicial magistrate of the first class as is appointed by him in this behalf] shall proceed to such place where the witness is or shall summon the witness before him and shall take down his evidence in the same manner and may for this purpose exercise the same powers as in trials of warrant cases under the 4[Code of Criminal Procedure, 1973 (2 of 1974)], or of any corresponding law in force at the place where the evidence is recorded.
(2) The trial in such an event may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.
(3) The Judge Advocate General of the Navy on receipt of an application under sub-section (1) may, if he thinks fit, issue a commission to the 2[metropolitan magistrate or judicial magistrate of the first class or an authority exercising the powers equivalent to those of a judicial magistrate of the first class under the Code of Criminal Procedure, 1973 (2 of 1974),] for the examination of the witness.
(4) The magistrate or authority to whom the commission is issued or 3[if he is a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, he or such metropolitan magistrate or judicial magistrate of the first class as is appointed by him in this behalf] shall proceed to such place where the witness is or shall summon the witness before him and shall take down his evidence in the same manner and may for this purpose exercise the same powers as in trials of warrant cases under the 4[Code of Criminal Procedure, 1973 (2 of 1974)], or of any corresponding law in force at the place where the evidence is recorded.
1. Subs. by Act 48 of 1982, s. 7, for "any district magistrate or a magistrate of the first class" (w.e.f. 16-10-1982).
2. Subs by s. 7, ibid., for certain words and figures (w.e.f. 16-10-1982).
3. Subs. by Act 48 of 1982, s. 7, for certain words (w.e.f. 16-10-1982).
4. Subs. by s. 7, ibid., for "Code of Criminal Procedure, 1898 (5 of 1898)" (w.e.f. 16-10-1982).
2. Subs by s. 7, ibid., for certain words and figures (w.e.f. 16-10-1982).
3. Subs. by Act 48 of 1982, s. 7, for certain words (w.e.f. 16-10-1982).
4. Subs. by s. 7, ibid., for "Code of Criminal Procedure, 1898 (5 of 1898)" (w.e.f. 16-10-1982).
Section 136 Examination of witnesses on commission
(1) Where a commission is issued under the provisions of section 135, the prosecutor and the accused may respectively forward any interrogatories in writing which the trial judge advocate may think relevant to, the issue and the magistrate or authority to whom the commission is directed or to whom the duty of executing such commission has been delegated shall examine the witness upon such interrogatories.
(2) The prosecutor and the accused may appear before such magistrate or authority by counsel or, except in the case of an accused person in custody, in person, and may examine, cross-examine arid reexamine, as the case may be, the said witness.
(3) After a commission issued under section 135 has been duly executed, it shall be returned together with the deposition of the witness examined thereunder to the Judge Advocate General of the Navy who issued the commission.
(4) On receipt of the commission and the deposition returned under sub-section (3), the Judge Advocate General of the Navy shall forward the same to the trial judge advocate at whose instance the commission was issued.
(5) The commission, the return thereto and the deposition shall be open to inspection by the prosecutor and the accused and may subject to all just exceptions be read in evidence in the case by either the prosecutor or the accused and shall form part of the proceedings of the trial.
(6) Any deposition so taken shall be received in evidence at any subsequent stage of the trial whether before the same court or, if the said court is dissolved meanwhile, before another court convened for the trial of the accused in respect of the same charges.
(2) The prosecutor and the accused may appear before such magistrate or authority by counsel or, except in the case of an accused person in custody, in person, and may examine, cross-examine arid reexamine, as the case may be, the said witness.
(3) After a commission issued under section 135 has been duly executed, it shall be returned together with the deposition of the witness examined thereunder to the Judge Advocate General of the Navy who issued the commission.
(4) On receipt of the commission and the deposition returned under sub-section (3), the Judge Advocate General of the Navy shall forward the same to the trial judge advocate at whose instance the commission was issued.
(5) The commission, the return thereto and the deposition shall be open to inspection by the prosecutor and the accused and may subject to all just exceptions be read in evidence in the case by either the prosecutor or the accused and shall form part of the proceedings of the trial.
(6) Any deposition so taken shall be received in evidence at any subsequent stage of the trial whether before the same court or, if the said court is dissolved meanwhile, before another court convened for the trial of the accused in respect of the same charges.