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The offences pertaining to the Army, Navy and Air Force are dealt with in Chapter 7 which extends from Section 131 – 140 that mainly discuss the offences related to abetment of breach of military laws and harbouring of offenders against that law.
Before delving into the discussion it is worthwhile to note that any breach or such violation of the law does not amount to a breach of the Indian Penal Code, nor does it breach any special or local law which is applicable to all the persons with respect to a particular subject, or related to a particular area.
Whereas the military law is applicable to a special class of people. Hence, if this Chapter were not present such abetment of offences would not have been punishable which necessitates the requirement of this Chapter. The authors of the Code also provided an explanation for the importance of this Chapter which is provided as follows:
A person not being a military person, if abets or attempts to abet a military breach then he cannot be made guilty under the Abetment of offences as is provided under the Code because the military delinquency which he has committed is not punishable under this Code. Additionally, it is not desirable that a person who is not military personnel, having abetted a breach of military discipline be made amenable to the same punishments and principles framed for abetment in this Code.
The Code says that the abettor of an offence be punished commensurately as the person who commits the offence. The principle appears just for when it is applicable for punishments laid down in this Code. However, the law governing the military discipline must mandate a greater severity of laws and punishments than the civilian law. Further, the justification for the severity lies in the peculiar duties and relations which a soldier commits to.
Nonetheless, such severity in punishment to persons who are not military personnel seems unwarranted and therefore, this Chapter provides for a more consistent framework of law to which such offenders can be subjected to.
Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty
Section 131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty: “Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India or attempts to seduce any such officer, soldier, sailor or airman from his allegiance or his duty, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
The scope of this section covers civilians and supplements the penal provisions of the Indian Air Force Act 1950, the Indian Army Act 1950 and Indian Navy Act, 1934, etc, pertinent to desertion and mutiny. Also, if read carefully the section appears to contain a similar provision as that of the English Incitement to Mutiny Act 1797 which provides that a person who with malicious intentions tries to seduce any person(s) under the service of the Majesty to incite or commit an act of mutiny or form a mutinous assembly shall be convicted of felony.
The word “whoever” in the provision signifies any person except for persons to whom the Indian Army Act 1950, the Air Force Act 1950, the Indian Naval Discipline Act 1934 or the Naval Discipline Act is applicable. Whoever distributes amongst Indian troop copies of a letter published in a newspaper with an intention that the soldiers give up their allegiance to the Government of India must be made guilty under this Section.[1]
The section does not make it necessary the means or mode to be used to carry out the act of such seduction of the soldier from his allegiance and duty, neither is it required that the charge must reflect that person endeavouring to seduce was aware that the person he attempting to seduce is a soldier. Nor, the indictment in published form when addressed to soldiers needs to specify any particular of person(s) who have been approached by the guilty person in breach of the Act. It is enough that the allegation regarding the endeavour to seduce persons who have vowed their allegiance to the Indian forces and Government.[2]
An offence under this Section is cognizable, non-bailable and non-compoundable. A warrant has to be issued in the first instance and the offence has to be tried by the Court of Session.
Abetment of mutiny, if mutiny is committed in consequence
Section 132. Abetment of mutiny, if mutiny is committed in consequence thereof: “Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, shall, if mutiny is committed in consequence of that abetment, be punished with death or with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
This section deals with the offence wherein the mutiny which was abetted has been committed consequent to the abetment. Therefore, this aggravated form of the offence is charged with the harshest punishment of death.
Section 109, IPC, can be referred to clarity regarding the phrase ‘in consequences thereof’. Similar to the previous section any charge made under this section is also cognizable, non-bailable and non-compoundable, and can be heard by the Court of Session.
Abetment of assault by soldier, sailor or airman on his superior officer, when in execution of his office
Section 133. Abetment of assault by soldier, sailor or airman on his superior officer, when in execution of his office: “Whoever abets an assault by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, on any superior officer being in the execution of his office, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”
The Section lays down penalty for the abetment of the offence which has been defined in Section 40 of the Army and Air Force Acts 1950. Section 40 in the Air Force Act which provides for Striking or threatening superior officer by means of criminal force, threatening language or insubordinate language.
The Section will only come into play if the assaulted officer was executing his duty while he was assaulted. The burden of proof lies with the prosecution to show that the officer was at the time of the assault, in the execution of his duty. Further, the provision punishes such abetment by any person pursuant to which an officer namely – a soldier, sailor or airman in the Army, Air Force or Navy of the Indian Government assaults his superior personnel in the execution of his office.
The assault will encompass any act gesture or any preparation with an intention or with a knowledge that such gesture or preparation would likely create apprehension in the mind of the person that the person who is making such a gesture or preparation is about to subject the person with criminal force, is said to have committed an act of assault. Nonetheless, assault is not committed by mere words unless such words make his gestures or preparation appear to be amounting to assault.[3]
The word ‘Officer’ in this section has been defined in the Army Act 1950 and Air Force Act 1950 as a person commissioned, gazetted or in pay as an officer in the Regular Army, Air Force or Navy.[4]
Again offence under this Section is also cognizable, non-bailable and non-compoundable. It can be heard by a magistrate of first-class only.
Abetment of desertion of soldier, sailor or airman
Section 134. Abetment of desertion of soldier, sailor or airman: “Whoever abets an assault by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, on any superior officer being in the execution of his office, shall, if such assault be committed in consequence of that abetment be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
So this Section provides for the penalty when as a consequence of any such abetment as is provided in S. 133 is committed eventually.
Abetment of desertion of soldier, sailor or airman
Section 135. Abetment of desertion of soldier, sailor or airman: “Whoever, abets the desertion of any officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
The offence referred in this Section is also an offence under Section 38 of the Army Act 1950, Air Force Act 1950, and Section 49 of Navy Act 1957. The Section makes the act of abetment punishable which mean actual desertion need not necessary to make a person guilty under this S.135. Further, it is important that we understand the meaning of desertion.
In ordinary parlance, desertion is defined as an act to part from or end connection with. Military law defines desertion as “to leave without permission, forsake in violation of duty, that is, to quit service without permission or run away.”[5] However desertion is not the same as mere absence without leave. To prove desertion is it imperative to establish the circumstances to justify an inference that a person who has committed desertion has no intent to return to his duty.
The Code in Section 108 lays down that the mere act of abetting a person who capable in the eyes of law to commit the offence with intention and knowledge likewise to the abettor, to establish guilt. The act in pursuance to the abetment need not take place.
In the case of Saleh Mahomed v. Emperor[6] the person who assisted a regimental sepoy to desert his regiment was held guilty of abetting the desertion of the sepoy even when the sepoy had no intent to desert and maintained that he acted in accordance to the abetment in order to entrap the accused.
The offence is cognizable, bailable but not compoundable. Any magistrate has the authority to hear and try cases under this section.
Harbouring deserter
Section 136. Harbouring deserter: “Whoever, except as hereinafter excepted, knowing or having reason to believe that an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, has deserted, harbours such officer, soldier, sailor, sailor or airman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both. This provision does not extend to the case in which the harbour is given by a wife to her husband.”
The offence punishable under this section is also punishable under Section 38(2) of the Army and the Air Force Act 1950, and Section 76 of the Navy Act. Further, the procedure complied under this Section is similar to that under Section 135.
Deserter concealed on board merchant vessel through negligence of the master
Section 137. Deserter concealed on board merchant vessel through negligence of master: “The master or person in charge of a merchant vessel, on board of which any deserter from the Army, Navy or Air Force of the Government of India is concealed, shall, though ignorant of such concealment, be liable to a penalty not exceeding five hundred rupees, if he might have known of such concealment but for some neglect of his duty as such master or person in charge, or but for some want of discipline on board of the vessel.”
This Section does not require that the merchant of the vessel must have knowledge of the concealment of the deserter of the India forces for his liability to arise if there is any likelihood that he could have known of such concealment but owing to his negligence he did not have. The offence is non-cognizable, bailable and non-compoundable with a requirement to issue a summons in the first instance.
Abetment of act of insubordination by soldier, sailor or airman
Section 138. Abetment of act of insubordination by soldier, sailor or airman: “Whoever abets what he knows to be an act of insubordination by an officer, soldier, sailor or airman, in the Army, Navy or Air Force, of the Government of India, shall, if such act of insubordination be committed in consequence of that abetment, be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”
The Section makes abetment of insubordination punishable which is similar to the offence laid down in Section 42 of the Army and the Air Force Act 1950. It must be shown that the person accused under this section knew that the act which he is abetting is an act of insubordination and further the act must be consequent to the abetment. The offence is cognizable, bailable, non-compoundable and can be tried by any magistrate.
Persons subject to certain Acts
Section 139. Persons subject to certain Acts: “No person subject to the Army Act, the Army Act, 1950 (46 of 1950), the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 (34 of 1934), the Air Force Act or the Air Force Act, 1950 (45 of 1950), is subject to punishment under this Code for any of the offences defined in this Chapter.”
This Section primarily makes it lucid that military personnel who are subject to military laws like Army Act and Air Force Act 1950, the Navy Act 1934 or any other such laws shall not be held guilty under this Chapter.
Wearing garb or carrying token used by soldier, sailor or airman
Section 140. Wearing garb or carrying token used by soldier, sailor or airman: “Whoever, not being a soldier, sailor or airman in the Military, Naval or Air Service of the Government of India, wears any garb or carries any token resembling any garb or token used by such a soldier, sailor or airman with the intention that it may be believed that he is such a soldier, sailor or airman, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”
The chief objective behind this Section is to prevent civilians from using the garb or token of Indian forces of the Indian Government. Also, a garb or token which though not military, if applied will appear to or maybe believed that the person wearing the garb is a soldier, sailor or airman in the Indian forces of the Indian Government is punishable under this Section.
Hereunder are certain ingredients to be proved to establish an offence under Section 140, IPC:
- Wearing of garb or token or at least resemble such garb or token used by a soldier, sailor or an airman.
- Person wearing has no entitlement to wear it.
- There must be intent to impersonate and induce people to believe that he was in service while committing the impersonation.
The Section makes the offence cognizable, bailable and non-compoundable. The offence can be tried by any magistrate.
[1] Pindi Das v. Emperor, 6 Cr LJ (411)
[2] R v. Fuller [1797] 2 Leach 790; R v. Bowman [1910] 76 JP (271)
[3] Indian Penal Code 1872, s 351
[4] Army Act 1950, s 3(18), Air Force Act 1950, s 4(23)
[5] Sk Darvaria (10thedn)
[6] AIR 1917 Sind 28, p 30s
