Chapter-10 Procedures of Court Martial

Chapter-10 Procedures of Court Martial
79. Duty station and bench of Court Martial:

(1) The Court Martial may establish a duty station at any place inside or outside of Nepal during the
proceeding of the case.
(2) Except in situations to protect national security, public order and rights of victims, the Court Martial shall normally sit in open session.

80. Chairperson of Court Martial:

(1) The senior officer amongst the officers of a Court Martial shall chair the Court Martial.
(2) If the senior officer who chairs the Court Martial is absent, the second in seniority shall, subject to the provisions of Section 67, chair the Court Martial.

81. Presence of Judge Advocate General (Prad Viwak):

(1) The Judge Advocate General (Prad Viwak) or the Prad (Law) Officer assigned or designated by him/her shall be present in every General Court Martial, Summary General Court Martial and District Court Martial as the Prad
Viwak.
(2) If a person who is accused of an offence submits a request for his/her defence to designate a Prad Officer of his/her choice in a Court Martial to the Defence Section of the Prad Viwak, the Prad Viwak shall
assign a Prad Officer accordingly. The Prad Officer shall defend him/her in the Court Martial if he/she is so assigned

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82. Objection may be raised:

(1) After the submission of case to a Court Martial for trial, the name of the chairperson and members of the Court
Martial shall be read to the accused, and he/she shall be asked whether he/she has any objection regarding the Chairperson or any other member or not.
(2) If the accused raises any objection regarding the Chairperson or any other member, the court shall keep records of the reasons thereof and the reply made by the Chairperson and such other member. The
Chairperson or members not so objected shall discuss on such objection and shall make a decision in the absence of the Chairperson and member so objected.

(3) If at least Fifty percent of members agree with the objection, the seat of the Chairperson and member so objected shall be vacated. The vacant seat shall be filled by nominating another officer, and the procedures
of objection as referred to in Sub-section (1) shall also apply to such a new Chairperson or member.
(4) After completion of procedures of objection as referred to in Sub-section (1) and (2), the Court Martial shall begin with the trial of a case.

83. Oath: Before the beginning of a trial, the Chairperson, members and the Prad Viwak shall take oath in the manner as prescribed.

84. Procedures for decision making:

(1) The Court Martial shall make decisions on the basis of a majority vote. In the case of a tie, the decision
shall go in favour of the accused.
Provided that, the following matters shall be decided as follows:
(a) To render a penalty of life sentence along with confiscation of entire property by the General Court
Martial it shall require at least a Two Thirds majority vote.
(b) To render a penalty of life sentence along with confiscation of entire property by the Summary
General Court Martial it shall require unanimous vote.
(2) Notwithstanding anything contained in Sub-section (1), the opinion supported by the Chairperson shall prevail on the procedural matters other than the imposition of penalty and rendering of the judgment.
(3) In the course determining the penalty (sentencing) by the Court Martial, the Prad Viwak present before the Court Martial or his/her  representative may give a separate opinion.
(4) In the course of investigation and hearing of a case which falls under the jurisdiction of a Court Martial, the rights regarding criminal justice shall be protected and sufficient opportunity to produce evidence in
defence shall also be granted.

85. Taking judicial notice: The Court Martial may take judicial notice that the military matters are within the general knowledge of the Chairperson and members.

86. Summoning: (1) The officer convening the Court Martial or the Chairperson of the Court Martial or the Prad Viwak or the commanding officer of the accused may issue a summons to the concerned persons to
produce any document or any other item, and to attend at the place and in the time as prescribed for recording the statement as a witness.
(2) If it is necessary to cause to produce any particular document or any item that is in the possession of a witness, such a matter shall be mentioned in the summons per se.
(3) If a witness is a person under the jurisdiction of this Act, the summons shall be dispatched to the commanding officer and such officer shall cause to serve the summons to the concerned person.
(4) If it is known that a witness is under the jurisdiction of Chief District Officer, the summons to such witness shall be dispatched to the Chief District officer and he/she shall cause to serve the summons to the
witness.
(5) Every person who has to record his/her statement in the Court Martial shall take an oath, as prescribed, before recording his/her statement.

87. Sealed questionnaire (Banda Sawal): (1) If the Court Martial believes that the summoning of a particular witness may cause delays, does not seen cost effective, or causes difficulties unnecessarily, it may issue an order to
the Prad Viwak allowing him/her to ask sealed questions (Banda Sawal).
(2) After receiving an order as referred to in Sub-section (1) the Prad Viwak may request to the Chief District Officer to serve the sealed questions to the witness within his/her jurisdiction, and upon receiving such
request, the Chief District Officer shall cause to serve the sealed questions in accordance with the prevailing law.
(3) The Court Martial shall include questions which an accused or his/her legal counsel intends to raise and which are relevant to the case in the sealed questionnaire.
(4) The legal counsel or attorney (Wares) and the accused him/herself, if he/she is not into the custody may cross-examine a witness being present before the Chief District Officer.
(5) After completion of recording of the statement in accordance with sealed questionnaire, the sealed questionnaire shall be forwarded to the Prad Viwak.
(6) The Prad Viwak shall submit the sealed questionnaire received as referred to in Sub-section (5) to the concerned Court Martial. In a case of the dissolution of the Court Martial, it shall be forwarded to the other court
which is hearing such case. The Court Martial or other court shall include the sealed questionnaire so received into the file, and the accused or legal practitioner shall be allowed to see the questionnaire.
(7) The Court Martial may postpone the trial of the case until the period needed for dispatching the sealed questionnaire and obtaining the response.

88. Presumption of signature: The signature signed in the course of the proceeding of a case or on any application, certificate, arrest warrant, response or any document by an officer of any rank of the Government of Nepal, shall be presumed to have been signed by him/herself, unless it is otherwise proved.

89. Documents admissible as an evidence: The information contained in the following documents shall be admissible as an evidence in a case adjudicated by the Court Martial:
(a) The information contained in the Sheet Role form by the concerned  person in the course of appointment,
(b) Original copy of the Sheet Role form or its certified (attested) photocopy indicating “copy is same as original” and signed by the officer responsible for it,
(c) Any letter, response or details of any document signed by the Chief of Army staff or an officer prescribed by him regarding the service, removal or termination of service from the Nepal Army,
(d) Status and rank of Padik or any other Darjani Chhina registered in the Register of Nepal Army or Army order or published in Nepal Gazette and Army order registered in the Register regarding
someone’s appointment or mater published in the Nepal Gazette,

(e) Information contained in the regimental book signed by the commanding officer or an officer responsible for keeping records,
(f) Information contained in a copy which is attested as “copy is same as original” and signed by the officer responsible for regimental book,
(g) In case a person to whom this Act is applicable and who is under trial on an offence as referred to in Section 42 and 58, and has surrendered him/herself before any officer or any person to whom
this Act is applicable or any camp (organ) of the Nepal Army, or in case such person has been arrested by any officer or any person to whom this Act is applicable; a certificate signed by such officer,
such person or the commanding officer of such camp indicating the place and date of surrender or arrest and his/her dress-up,
(h) In case a person to whom this Act is applicable and who is under trial on the offence as referred to in Section 42 or 58 has surrendered him/herself during his/her trial before any police officer, in-charge
of a police office or in case such person has been arrested by such police officer, information contained in a letter certified and signed by such police officer indicating the place and date of surrender or
arrest and his/her dress-up,
(i) Information contained in the report received from a forensic scientist or forensic laboratory prepared upon request for examination or investigation.

90. Requesting information from governmental authorities: (1) If an accused charged with an offence as referred to in Sections 42 and 58 requests to inquire with an officer of the Government of Nepal regarding
the offence or the Court Martial itself finds it appropriate to inquire with such an officer, the Court Martial may request to the officer for such information and adjourn (keep in pending) the case till the response is
received.
(2) The information recorded as referred to in Sub-section (1) shall be recognized as good as the statement recorded before the Court Martial. (3) In case the Court Martial is dissolved before receiving the
information as referred to in Sub-section (2) or the Court Martial fails to observe the procedures in accordance with this Section, the officer convening the Court Martial may cancel the trial and issue an order to carry
out a re-trial.

91. Previous penalty and character as an evidence:

(1) In the course of making a decision regarding a person charged with an offence as referred to
in Chapter-6, the Court Martial may collect information on whether such person was previously convicted or not, or whether he/she was subjected to any departmental action or not, and may admit it in the decision as an
evidence. For this purpose the Court Martial may take into note of his/her character and previous activities.
(2) A copy may be made of the oral statement recorded pursuant to Sub-section (1) or the information contained in a regimental book or any governmental book, and it shall not be necessary to give prior notice to the
accused that the previous conviction or character of accused or his/her previous activities shall be admitted as an evidence.
(3) The Summary Court Martial, if deems reasonable, may keep records of information, without attestation, of the decision if any decision has been made in regards to such person, his character or previous
activities.

92. Provisions of Evidence Act, 2031 (1974) to be applicable: The Court Martial, while examining evidence in the course of the trial of an offence pursuant to this Act, shall apply the procedures provided by this Act, and in
other matters the procedures provided by the Evidence Act, 2031 (1974) shall be applicable.

93. Defence of mentally abnormal accused:

(1) If it is found that a person is unable to defend him/herself due to mental insanity during trial by the
Court Martial or he/she committed the alleged act under the circumstances during which he/she was unable to understand the nature of the act and that such act was unreasonable and illegal, the Court Martial shall prepare a
memorandum in this regard.
(2) The Chairperson of the Court Martial or investigating officer of the Summary Court Martial shall submit immediately the memorandum prepared pursuant to Sub-section (1) before the approving authority or an
official as referred to in Sub-section (3) of Section 115.
(3) In case the approving authority does not approve the verdict of the memorandum received pursuant to Sub-section (2), necessary action may be taken to try the case in the same or another Court Martial.
(4) If the approving authority approves the details of the memorandum submitted by the Summary Court Martial pursuant to Sub- section (2), the approving authority shall issue an order to hold the accused
in the custody and shall submit it to the Government of Nepal, Ministry of Defence, for approval.
(5) After receiving the report pursuant to Sub-section (4), the Government of Nepal, Ministry of Defence shall issue an order to hold such person in a mental hospital or in custody in any appropriate safe place.

94. Trial of a mentally abnormal accused: (1) The Chief of the Army, Army Corps, Divisional Headquarters, or the Brigade or any officer on his/her behalf may issue an order to proceed with a case in the same or any
other Court Martial on the ground of the report of a doctor stating that the person detained pursuant to Section 92 is able to defend him/herself; or on the ground of a certificate issued by the chief of a mental hospital or prison
stating that the such person is able to defend him/herself in a case where the person has been detained in mental hospital or prison. If the charge has been made for an offence under any other prevailing laws except the
offence pursuant to this Act, an order may be issued to cause to try the case  in other court.
(2) The order issued pursuant to Sub-section (1) shall be forwarded to the Ministry of Defence for its information.

95. A mentally abnormal accused may be released: The Ministry of
Defence may release a person who has been held in detention pursuant to
Section 93 or held in custody or sent to a mental hospital in case if he/she
was not already held in a mental hospital based on the report of the Doctor
in respect to a person who was held in detention, or if the chief of the
mental hospital or prison recommends his release or a certificate stating
that the person might not be harmful to him/herself or anyone else after
release.

96. A mentally abnormal accused may be handed over to the successor or guardian: If a successor or guardian of a person held in custody pursuant to Section 93 lodges an application requesting that if he/she be handed over to them for his/her caretaking or responsibility, and if the Ministry of Defence is satisfied that the such a person shall be taken care of, and that he/she will not harm him/herself or others and shall be produced to the prescribed officer on the prescribed date and at the prescribed time, the Ministry of Defence shall hand him/her over to his/her
successor or guardian.

97. Auction and management of materials relevant to an offence: (1) The Court Martial shall protect the materials relevant to an offence which is produced to it in the course of a trial of the case.
(2) In case a materials kept for protection pursuant to Sub-section (1) may be decayed or damaged, the Court Martial may issue an order to auction such materials and to deposit such an amount in the governmental
account (state treasury).
(3) After completion of the proceeding by a Court Martial, the authority having power to approve a verdict and penalty of such Court Martial or an officer senior to such officer or if a decision of a Court
Martial does not need approval for imposing penalty, the Chief of the Army, Corps (Chamu), Divisional Headquarters (Pritana) or Brigade (Bahini) may issue an appropriate order to confiscate, destroy or to return
such materials to the person who claims it as a successor or to sell any goods, or documents related to an offence that are received in the court in the course of the trial in a case.
(4) The official issuing an order pursuant to Sub-section (1) shall send a copy of such order to the Chief District Officer of the area where the materials are being located if the case was not tried with in the territory of
Nepal, and the Chief District Officer shall also cause to perform the acts in accordance with the order.
Explanation: For the purpose of this Section the term “materials” shall include not only the materials held in primary possession or ownership but also materials which have changed their form immediately
or after some time and goods obtained through exchange or income made from the sale.

98. Recognitions of the actions of Court Martial: The proceeding conducted by a Court Martial pursuant to this Act shall be recognized as the proceeding of a court.

99. Postponement and dissolution of Court Martial:

(1) A Court Martial shall be postponed in the following circumstances:
(a) If, after the beginning of trial, the number of Chairperson and members determined pursuant to
Section 67 decreases,
(b) If, during the trial, it is impossible to continue the trial because the representative of the Prad Viwak or the
accused fall sick.
(2) The authority convening the Court Martial may dissolve the Court Martial if it is deemed impossible or unreasonable to continue the Court Martial in view of military necessity or discipline.
(3) If the Court Martial which was postponed pursuant to Sub- section (1) returns to the original position it may be continued.
(4) The Court Martial dissolved for the reasons as referred to in Sub- section (2) may be reconvened and the trial may be continued.
(5) After the completion of all the activities related to decision, the Court Martial shall ipso facto be dissolved.

100. Forwarding files:

(1) After completion of the trial, proceeding and hearing of the case by a Court Martial except the Summary Court Martial, the file with the decision shall be forwarded to the Judge Advocate General Department (Prad Viwak) and the Judge Advocate General Department (Prad Viwak) shall examine the file as required and shall forward it to the
authority as referred to in Section 108, 109 and 110 for the approval of the decision or opinion.
(2) After completion of the trial, proceeding and hearing, the file along with the decision shall be forwarded to the Judge Advocate General Department (Prad Viwak), and the Judge Advocate General Department (Prad Viwak) shall make examinations.
(3) In a case of a departmental action pursuant to Section 105, the  penalty ordering authority shall forward the attested copy of the file to the authority as referred to in Section 118.