The Constitution of India, by Article 136(2), specifically excluded from the jurisdiction of the Supreme Court, and that of the High Courts by Article 227, offences committed under the Army Act 1950, the Air Force Act 1950 and the Navy Act 1957.Similarly, the Indian Penal Code/ Criminal Procedure Code does not give jurisdiction to Criminal Courts over defence personnel in respect of offences committed under these Acts. Such persons and offences are tried by the court known as Court Martial. Even if a personnel of Armed forces is detained by the local police and kept in custody, the Criminal Procedure Code provides that he should be handed over to military authorities to be tried under Court Martial. The Court Martial, though a legal tribunal, is not part of the judiciary of the country. It is however, the only court where a case of a military offence can be tried, determined and punished. The superior civil courts, that is, the Supreme Court and the High Courts, have no appellate jurisdiction and no appeal to any civil court lies from the punishment awarded. The only way by which the decision or proceedings of a Court Martial can, to a very limited extent, be challenged is by way of writ jurisdiction of the Supreme Court and the High Courts under Article 32 and 226 of the Constitution of India respectively.
The Court Martial is a court within the meaning of civil procedure and the proceedings before the Court Martial and judicial proceedings. Like a court of law, the Court Martial is bound by the fundamental principles of natural justice and, in the absence of special provisions on the subject in the military code, it is expected to observe the rules of evidence as in the civil courts.
There are four different kinds of Court Martial known to military law:
(i) General Court Martial
(ii) District Court Martial
(iii) Summary General Court Martial
(iv) Summary Court Martial
The General Court Martial is the highest Court Martial and may be convened by the Central government or the Chief of the Army Staff by way of warrant of the Chief of the Army Staff. A General Court Martial must consist of at least five officers. The General Court Martial has powers to try any army persons subject to the Acts for any offence punishable therein and award any sentence. Such Court Martials are held for the trial of officers and men of their own command.
The District Court Martial may be convened by an officer who has the power to convene a General Court Martial or by any officer empowered in that behalf. The District Court Martial consists of not less than three officers. It has the power to try any officer or a junior commissioned officer for an offence made punishable therein and to pass any sentence authorised by the Act other than a sentence of death, life imprisonment or imprisonment for a term exceeding two years.
The Summary General Court Martial can be convened by the officer empowered in that behalf by an order the Central government or the Chief of staff or other such officers. The Summary General Court Martial consists of not less than three officers. It has the same powers as a General Court Martial and can try any person subject to the Act for any offence punishable therein and award any sentence authorised thereby.
The Summary Court Martial is held by the commanding officer of any corps, department or detachment of the regular Army to which the accused belongs. The proceedings of a Summary Court Martial are attended throughout by two other persons who are officers or junior commissioned officers or one of either. The Summary Court Martial can try and offence punishable under the Act or under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer, when there are grave reasons for immediate action. The Summary Court Martial may pass any sentence that could be awarded under the Act in respect of the offence charged but not a sentence of death or life imprisonment or imprisonment for a term exceeding one year. The qualifications of the persons constituting the Court Martial are prescribed in the respective Acts.
In the Armed forces, there is an office known as Judge Advocate General. The Acts provide that every General Court Martial shall and every District or Summary Court Martial may be attended to by the Judge Advocate who either belongs to the department of the Judge Advocate General or if no such officer is available, an officer approved by the Judge Advocate General or his deputies. His role is of an adviser and the prosecutor and accused are at all times entitle to his opinion on question of law both inside and outside of the court.
The functions of the Judge Advocate are:
(i) The prosecution and the accused, respectively, at all times, after the Judge Advocate is named to act on the court, are entitled to his opinion on any question of law relating to the charge or trial, whether he is in or outside of the court. However, if he is in the court, then his opinion has to be sought with the permission of the court.
(ii) He is responsible for informing the court of any irregularity in the charge or the proceedings. Whether consulted or not, he should inform the convening authority and the court of any infirmity or defect in the charge or in the constitution of the court and give his advice on any matter before the court.
(iii) He is bound to finish his opinion on any question of law, practice or procedure, arising in the course of trial, when this is required of him by the court.
(iv) After closing addresses, the Judge Advocate sums up the evidence and advices the court upon the law relating to the case before the court close to deliberate on their findings.
(v) The Judge Advocate has, equally with the presiding officer, the duty of taking care that the accused does not suffer and disadvantage in consequence of his position as such, or of his ignorance or incapacity to examine or cross examine witnesses or otherwise, and may for that purpose, with the permission of the court, call witnesses and put question to them, which appear to him necessary or desirable to elicit the truth.
(vi) He summons the witnesses both for the prosecution and the defence to attend at the time, date and place where the Court Martial is being held.
In fulfilling his duties, the Judge Advocate is enjoined to maintain an entirely impartial position. He is bound to consider himself as a minister of Justice and he should only interfere to the extent to which the court itself is bound to interpose. In his duty towards the prisoner, he is not obliged to go further than the court itself; the court sits for the purpose of doing justice and is bound to care that the prisoner does not suffer from his ignorance, inexperience or incapacity.
The Court Martial is a court within the meaning of civil procedure and the proceedings before the Court Martial and judicial proceedings. Like a court of law, the Court Martial is bound by the fundamental principles of natural justice and, in the absence of special provisions on the subject in the military code, it is expected to observe the rules of evidence as in the civil courts.
There are four different kinds of Court Martial known to military law:
(i) General Court Martial
(ii) District Court Martial
(iii) Summary General Court Martial
(iv) Summary Court Martial
The General Court Martial is the highest Court Martial and may be convened by the Central government or the Chief of the Army Staff by way of warrant of the Chief of the Army Staff. A General Court Martial must consist of at least five officers. The General Court Martial has powers to try any army persons subject to the Acts for any offence punishable therein and award any sentence. Such Court Martials are held for the trial of officers and men of their own command.
The District Court Martial may be convened by an officer who has the power to convene a General Court Martial or by any officer empowered in that behalf. The District Court Martial consists of not less than three officers. It has the power to try any officer or a junior commissioned officer for an offence made punishable therein and to pass any sentence authorised by the Act other than a sentence of death, life imprisonment or imprisonment for a term exceeding two years.
The Summary General Court Martial can be convened by the officer empowered in that behalf by an order the Central government or the Chief of staff or other such officers. The Summary General Court Martial consists of not less than three officers. It has the same powers as a General Court Martial and can try any person subject to the Act for any offence punishable therein and award any sentence authorised thereby.
The Summary Court Martial is held by the commanding officer of any corps, department or detachment of the regular Army to which the accused belongs. The proceedings of a Summary Court Martial are attended throughout by two other persons who are officers or junior commissioned officers or one of either. The Summary Court Martial can try and offence punishable under the Act or under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer, when there are grave reasons for immediate action. The Summary Court Martial may pass any sentence that could be awarded under the Act in respect of the offence charged but not a sentence of death or life imprisonment or imprisonment for a term exceeding one year. The qualifications of the persons constituting the Court Martial are prescribed in the respective Acts.
In the Armed forces, there is an office known as Judge Advocate General. The Acts provide that every General Court Martial shall and every District or Summary Court Martial may be attended to by the Judge Advocate who either belongs to the department of the Judge Advocate General or if no such officer is available, an officer approved by the Judge Advocate General or his deputies. His role is of an adviser and the prosecutor and accused are at all times entitle to his opinion on question of law both inside and outside of the court.
The functions of the Judge Advocate are:
(i) The prosecution and the accused, respectively, at all times, after the Judge Advocate is named to act on the court, are entitled to his opinion on any question of law relating to the charge or trial, whether he is in or outside of the court. However, if he is in the court, then his opinion has to be sought with the permission of the court.
(ii) He is responsible for informing the court of any irregularity in the charge or the proceedings. Whether consulted or not, he should inform the convening authority and the court of any infirmity or defect in the charge or in the constitution of the court and give his advice on any matter before the court.
(iii) He is bound to finish his opinion on any question of law, practice or procedure, arising in the course of trial, when this is required of him by the court.
(iv) After closing addresses, the Judge Advocate sums up the evidence and advices the court upon the law relating to the case before the court close to deliberate on their findings.
(v) The Judge Advocate has, equally with the presiding officer, the duty of taking care that the accused does not suffer and disadvantage in consequence of his position as such, or of his ignorance or incapacity to examine or cross examine witnesses or otherwise, and may for that purpose, with the permission of the court, call witnesses and put question to them, which appear to him necessary or desirable to elicit the truth.
(vi) He summons the witnesses both for the prosecution and the defence to attend at the time, date and place where the Court Martial is being held.
In fulfilling his duties, the Judge Advocate is enjoined to maintain an entirely impartial position. He is bound to consider himself as a minister of Justice and he should only interfere to the extent to which the court itself is bound to interpose. In his duty towards the prisoner, he is not obliged to go further than the court itself; the court sits for the purpose of doing justice and is bound to care that the prisoner does not suffer from his ignorance, inexperience or incapacity.
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