Chapter-13 Execution of Penalties

Chapter-13 Execution of Penalties
120. Calculation of the period of imprisonment:

(1) The term of imprisonment imposed on a person by a Court Martial pursuant to this Act shall be counted from the date he/she is taken into custody irrespective of whether such penalty has been reheard or not, and from the date when the Chairperson signs the penalty in a case of the original proceeding of the case and an officer of Court Martial signs the penalty in a case of the Summary Court Martial.
(2) If a person convicted by a Court Martial for an offence during a military operation is imposed an imprisonment rather a dismissal from the service, and such person could not be sent to the prison for any reason, the prescribed officer may give an instruction assigning him/her to carry out the responsibilities for his/her post.
(3) The period of service performed pursuant to Sub-section (2) shall be counted in the period of imprisonment.

121. Executing the penalty of imprisonment:

(1) An officer having authority to approve the penalty imposed on a person convicted by a Court
Martial shall issue an order to send him/her in prison to serve the term of
imprisonment or an officer of Court Martial shall issue such order in relation to a person who is convicted by a Summary Court Martial.
(2) Upon receiving an order pursuant to Sub-section (1), the commanding officer of the person subjected to penalty or any other prescribed authority shall send him/her to prison along with a detention letter.
(3) When transferring a prisoner from one place to another, arrangements shall be made to prohibit escape, flee or commission of other  undesirable acts.
(4) If a new order is issued in relation to a prisoner replacing the previous order, the officer who so orders shall issue a detention letter accordingly to the concerned prison chief.
(5) Detention shall not be deemed illegal merely on the ground that there is an error in the detention letter or any document thereto or it does not match with the prescribed format or for any other reason in case a
person has been held in prison as per the decision imposing imprisonment by the Court Martial.
(6) If an order is issued to hold the convicted person in prison to serve the imprisonment, such a convict may be held in custody at any appropriate place until he/she is sent to the prison.
(7) In case the penalty does not exceed the term of Three months, the officer as referred to Sub-section (1) may issue an order to hold such person in military custody until the completion of term of imprisonment.
(8) During a period of military operation, the term of imprisonment may be served by holding him/her in custody as prescribed by the commanding officer. (9) No prisoner held in prison pursuant to this Act shall be subjected
to any corporal punishment during the period of imprisonment; and no penalty of imprisonment shall be imposed on him/her which is not in accordance with the prevailing law.
(10) If the commanding officer of the Army, Corps (Chamu), Division (Pritana) or Brigade (Bahini) believes that it is not possible to execute any penalty in military prison or military custody, he/she may issue an order to hold the concerned person in any prison.

122. Period to be considered as prisoner of war: For the purpose of Section 131, a person shall be deemed to have remained as a prisoner of war until investigations into his/her conduct pursuant to Section 129 are
completed and until the day of his/her dismissal from service in case he/she is dismissed from service on the grounds of his/her conduct after the completion of investigations.

123. Reduction in salaries and allowances:

(1) For the purpose of implementing an order of penalty, the salary and allowance of an officer
shall be deducted as follows:
(a) The salary and allowance for the day of his/her absence, except when satisfactory explanations are
given to the commanding officer and those explanations are approved by the Government of
Nepal,
(b) The salary and allowances for the period held in custody or on suspension from duty as per the order
issued by any Court Martial or other court or any authority who has an authority to issue an order for
departmental action,
(c) The amount of the salary decided to be paid to any person whose salary is illegally frozen or who is
refused to be paid,
(d) The amount required to reimburse the expenses resulting from an order issued by a Court Martial or an
authority who has the power to issue an order for departmental action,
(e) All such salaries and/or allowances subjected to confiscations or freezing pursuant to an order issued
by a Court Martial or the Authority who has the power to issue an order for departmental action of
confiscation or freezing,
(f) The amount required to pay the fine imposed by a Court-martial or any other court pursuant to Section
66,
(g) The amount required to reimburse the property stolen or causing any loss to the property of the Government
of Nepal or the Nepal Army which is proved by the investigations conducted pursuant to the Rules which
were stolen or damaged due to negligence or mistake of the officer,
(h) All such salaries and allowances forfeited through an order of the Government of Nepal after the Court of
Inquiry formed by the Chief of Army Staff has held that the concerned officer had cooperated with the
enemy, or served the enemy while in the custody of the enemy or helped the enemy as per the orders of the
enemy or otherwise, or that he/she had been captured by the enemy for being intentionally negligent while
on duty and held under the custody of the enemy, or that he/she had failed to return to his/her side even
when he/she could do so after being captured by the enemy,
(i) The amount to be paid as per the order of the  Government of Nepal by the concerned officer for the
maintenance of one’s wife and/or children, or the amount being paid by the Government as maintenance
for such children.
(2) Subject to the provisions of Sub-section (1), the salary and allowances of persons other than officers shall be deducted as follows:
(a) The salary and allowances payable for each day of absence, desertion, detention as a prisoner of war or
while being held in custody by the Court Martial, other courts or an authority who may order for a
departmental action or absence resulting from battlefield penalty ordered by a Court Martial or an  authority who may order for a departmental action and the salary and allowances payable for each day of absence resulting from detention prior to imprisonment after being convicted of an offence by a Court Martial or other court,
(b) The salary and allowances payable for the period of detention or suspension from duty on the charge of
committing an offence for which the person concerned is subsequently convicted by any Court Martial or
other court or an authority who has power to issue an order for departmental action,
(c) The salary and allowances payable for each day of hospitalization after falling ill for which the doctor
engaged in the treatment issues a certificate to the effect that the person concerned has fallen ill because
of action taken by him/her which is deemed to be an offence under this Act,
(d) The amount of salary and allowances payable for each day of hospitalization as determined by the officer
prescribed or authorized by the Government of Nepal after falling ill for which the doctor engaged in the
treatment issues a certificate to the effect that the person concerned has fallen ill because of his/her
misconduct or negligence,
(e) All such salaries and allowances as ordered for forfeiture or freezing by a Court Martial or an
authority who has power to issue an order for departmental action,
(f) The salary and allowances payable for each day from the date of dismissal from service in consideration of
the conduct of the person concerned to the date of his/her release from the enemy, in case he/she is held
as a prisoner of war or in custody by the enemy,
(g) The amount needed to compensate as determined by his/her commanding officer for the loss or damage or
destruction or unnecessary expenses caused by him/her to any building or asset of the Government of Nepal,
(h) The amount required to pay the fine imposed by a Court Martial or other Court or any authority who
exercises power as referred to in Sections 66, 105 or 107.
(i) The amount to be paid as per the order of the Government of Nepal by the concerned person for the
maintenance of his wife and the children, or the amount being paid by the Government as maintenance
for such children.

124. Calculation of period of absence without leave or custody: For the purpose of Clause (a) of Sub-section (2) of Section 114:
(a) No person shall be deemed to have been detained or remained absent except when he/she has been detained or has remained absent without leave for less than Six hours consecutively on a single day  or more than a single day.
(b) If a person remains absent without leave or is detained for less than a day and thereby fails to discharge his/her military duty, and in case any other person is assigned to discharge such duty, such absence or
detention for less than a day shall be treated as absence or detention for a day.
(c) If a person remains absent without leave or is detained for Twelve or more hours consecutively on any day, the period of such absence or detention, irrespective of its duration, shall be taken as one days’
absence or detention.
(d) If a person remains absent or is detained from before midnight and such absence or detention ends after midnight, the period of such absence or detention shall be taken as one day’s absence or
detention.

125. Salary and allowances during trial: If a person who falls under  jurisdiction of this Act is detained or suspended on any charge, the prescribed authority may, for the purpose of implementing Clause (b) of
Sub-section (1) and Clause (b) of Sub-section (2) of Section 123, issue a directive to freeze his/her salary and allowances as prescribed until the disposal of the case.

126. Limits of reduction : Except when the concerned person has been punished with dismissal, all the deductions to be made from his/her salary and allowances according to the provisions contained in Clauses (d), (f),
(g), (h) of Sub-section (2) of Section 123 shall not exceed half of his/her salary and allowances for any month.

127. Reduction from amounts other than provident fund and pension:
Any amount to be deducted from the salary and allowances of any person pursuant to this Act may be deducted from any other amount payable to the person, except the Army provident fund and pension, without prejudice to
any other procedure for collecting such deductions.

128. Reimbursement as if the governmental dues: The concerned Chief
District Officer may be requested to reimburse the fine imposed under the
proceeding of this Act. The Chief District Officer, if so requested, shall
reimburse it in accordance with prevailing laws as if it is a governmental
dues and shall forward it to the concerned department.

129. Salary and allowances of a person of war during the inquiry on conduct: If a person who falls under the jurisdiction of this Act becomes a prisoner of war or captured by the enemy, and in case it becomes necessary
under this Act or any other law to investigate his/her conduct during the investigation, the Chief of Army Staff or any officer authorized by the Chief of Army Staff, may issue an order to freeze his/her full or partial salary and allowances until the result of the investigation is revealed.

130. Reductions may be exempted: Any deduction to be made from salaries
and allowances pursuant to this Act may be exempted upto the prescribed
limit in the manner as prescribed.

131. Arrangement for the dependants of prisoners of war from the  money so exempted:
(a) The salary and allowances of a person, to whom this Act is applicable and who has been held as a prisoner of war, subjected to  forfeiture under Clause (h) of Sub-section (1) and Clause (a) of Sub- section (2) of Section 122, if exempted as referred to in Section 130, shall be used for the arrangement of rations and other essential goods
and materials for the dependents of such person. If such an arrangement is made, the remaining balance out of the salary and allowances shall be deemed to have been exempted.
(b) If a person who falls under the jurisdiction of this Act has been held as a prisoner of war or is lost during a military operation, the arrangements for rations and other goods and materials for the dependents of such person shall be made out of his/her salary and allowances.

132. Execution of penalties during the stay outside of Nepal:

(1) If the person who has been subjected to a penalty pursuant to this Act is staying outside the territory of Nepal, the penalty may be executed in the country where he/she is staying or may be brought into Nepal where it shall be
executed.
(2) If a person working with the Nepal Army is subjected to removal or has been removed from the service at the time he/she is staying outside of Nepal, he/she may be brought into Nepal