Proposals for Reform
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This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. In this article, she has discussed about Chapter VII of Indian Penal Code which talks about offences relating to Army, Navy and Airforce. 

Introduction

Chapter VII of Indian Penal Code, 1860 deals with offences committed by civilians in relation to officers in Army, Navy and Airforce of the Government of India. The main objective of this chapter is to maintain discipline and order in the Armed Forces of the Union. 

In most of the countries across the globe, the defence personnel are governed by their own special laws. But if they commit serious offences (like murder) they can be tried by civil or criminal courts. However, the Military Court does not have the power to exercise jurisdiction if the offence is committed by a civilian. Similarly, as per Section 139 of the code, persons who are subject to court-martial will not be dealt with under the code. The special laws which govern them in India are: 

  • The Army Act, 1950 (46 of 1950);
  • The Indian Navy (Discipline) Act, 1934 (34 of 1934); and 
  • The Indian Air Force Act, 1950 (45 of 1950).

The correlation between Indian Penal Code, 1860 & Army Act, 1950 can be studied under the following table: 

Sr. no. 

Indian Penal Code, 1860

Army Act, 1950

1.

Sections 131 & 132 punishes abetment of mutiny and attempt to seduce any officer, soldier, sailor or airman in the Government of India. 

Mutiny is a capital offence under Section 37. Section 37(e)- mutiny, includes any endeavours to seduce such personnel from duty.

2.

Sections 133 & 134 makes abetment of assault by any officer, soldier, sailor or airman on any superior officer in the execution of his duty punishable.

Under Section 40 such assault is punishable for a term up to 14 years.

3.

Sections 135 & 136 talks about abetment of desertion and harbouring a deserter.

Under Section 38, deserting and aiding deserters punishable for imprisonment up to 7 years.

4.

Section 138 punishes for an act of insubordination by an officer, soldier, sailor or airman. 

An act of insubordination is punishable with 7 years of imprisonment under Section 42.

Offences Relating to the Army, Navy and Air Force 

The classification of offences which are committed by civilians in relation to the Army, Navy and Air Force governed by the Indian Penal Code which can be studied in the following manner:

Abetment of Mutiny 

Section 131 states that any person who abets the commission of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Airforce or attempts to seduce an officer, soldier, sailor or airman from his allegiance or his duty, such person shall be liable to be punished with life imprisonment or imprisonment up to 10 years and shall also be liable to fine.

This section has two parts. First part makes abetment of mutiny punishable and the Second part makes an attempt of seduction punishable. It would in this way create the impression that Section 131 applies to situations where mutiny isn’t committed as a result of the abetment. The offence contemplated under Section 131 is an abetment which is not followed by actual mutiny, or which, supposing actual mutiny follows, is not the cause of that mutiny. 

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It was observed by the court that the offence of mutiny consist in extreme subordination as if a soldier resists by force, nor if a number of soldiers rise against or oppose their military superiors, such acts proceedings from alleged or pretended grievances of a military nature. Acts of a riotous nature directed against the government or civil authorities rather than against military superiors seem also to constitute mutiny.

Under Section 132, If mutiny is committed as a consequence of such abetment by any officer, soldier, sailor or airman in the Army, Navy or Airforce then, such a person will be punished with death or life imprisonment or with imprisonment which may extend up to 10 years and also with fine. Both Sections 131 & 132 must be read together.

Section 131, mentions that “officer”, “soldier”, “sailor” or “airman” will include any person who is subject to the Army Act, 1950; the Indian Navy (Discipline) Act, 1934; the Air Force Act, 1950. This explanation was not there originally and was inserted by an amendment of Act 27 of 1870 and was amended by Act 10 of 1927.

Abetment of Assault by an Officer on a Superior Officer

Section 133 states that any person who abets any officer, soldier, sailor, or airman in the Army, Navy or Air Force of the Government of India to assault any superior officer who is in the execution of his office shall be punished with imprisonment for a term which may extend up to 3 years and shall also be liable to fine. Section 134 provides that if an assault is committed as a result of such abetment then such person shall be punished with imprisonment for a term which may extend to 7 years and also with fine. 

Sections 133 and 134 deals with abetment of assault of any officer, soldier, sailor, or airman on a superior officer. Under Section 133, only abetment of an assault is punishable while Section 134 punishes the abetment of an assault when such assault is committed as an outcome of such abetment.

Abetment of Desertion 

Under Section 135, any person who makes an abetment of 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 for 2 years or with fine or with both. Section 135 does not recognize whether abetment of desertion is successful or not. The desertion abetted does not need to happen. Mere abetment is made punishable. 

Harbouring deserter

Section 136 states that if any person who knows or has reason to believe that any officer, soldier, sailor, or airman in the Army, Navy or Air Force of the Government of India has deserted, harbours such officer, soldier, sailor, or airman, he shall be punished with imprisonment which may extend to 2 years or with fine or with both. The exception is given only to a wife. 

This Section implies that if any person gives harbour (shelter) to an official who has deserted Army, Navy or Air Force working under the head of Government of India (with the exception of the individuals who are relied upon to so), he shall be punished. The crux of this Section is concealment of the deserter to prevent his apprehension.

Section 137 punishes the master or person in charge of a merchant vessel on board of which a deserter has concealed himself, even though he is ignorant of such concealment. But, some lack of care or maintenance of discipline has to be made out. The penalty is for a sum not exceeding 500 rupees.

However, in this Section, the word ‘penalty’ is used, rather than the word ‘fine’. The object apparently is to restrict the court from imposing a sentence on the accused. The term ‘Harbour’ has been defined under Section 52 A of the code.

Abetment of an Act of Insubordination

Insubordination implies refusal to obey orders. Section 138 states that any person who knows it to be an act of insubordination abets any officer, soldier, sailor or airman in the Military, Naval, or Air Service of the Government of India in his act of insubordination. He shall be held liable and shall be punished with imprisonment which may extend to 6 months or with fine or both if an act is committed in consequence of such abetment. Section 138 says that any person who abets an officer in his act of insubordination shall be punished only if the act is committed as a result of such abetment.

Wearing Garb

Section 140 states that any person who not being a soldier, sailor or airman in the Military, Naval, or Air Service of the Government of India wears a garb or wears a dress which carries a token belonging to any such soldier, sailor or airman with the intention that it may be believed that he is such a soldier, sailor or airman. Such person is liable to be punished with imprisonment up to 3 months or with fine which may extend to 500 rupees or both. 

This Section forbids any person from misleading others by wearing such garb and giving an impression that he is a soldier. The intention of the accused wearing the garb of a soldier is of inducing others to believe that he is in service at the present time. Simply wearing a uniform or carrying a token without any specific intention is no offence. For instance, Actors put on costumes of various defence service personnel for their role. 

Classification of Offences

Section & Definition under IPC

Punishment 

 

Cognizable/ Non- cognizable

Bailable/ Non-

bailable

Triable by

S.131- Abetment of mutiny & attempt of seduction of any officer, soldier, sailor or airman.

Life imprisonment/ imprisonment of 10 years and with fine.

Cognizable

Non- bailable

Court of Session.

S.132- Abetment of mutiny, if mutiny is committed in consequence of such abetment.

Death/Life imprisonment/ imprisonment of 10 years and with fine.

Cognizable

Non- bailable

Court of Session.

S.133- Abetment of an assault by any officer, soldier, sailor, airman on superior office.

Imprisonment of 3 years and also with fine.

Cognizable

Non- bailable

Magistrate of First Class.

S.134- Abetment of an assault by any officer, soldier, sailor, airman on superior office, if such assault is committed.

Imprisonment of 7 years and fine.

Cognizable

Non- bailable

Magistrate of First Class.

S.135- Abetment of desertion.

Imprisonment of 2 years or fine or with both.

Cognizable

Bailable

Any Magistrate.

S.136- Harbouring deserter. 

Imprisonment of 2 years or fine or with both.

Cognizable

Non- bailable

Any Magistrate.

S.137- Deserter concealed on board merchant vessel.

Penalty of Rs.500.

Cognizable

Non- bailable

Any Magistrate.

S.138- Abetment of an act of insubordination. 

Imprisonment of 6 months or fine or with both.

Cognizable

Bailable

Any Magistrate.

S.140- Wearing garb or carrying token belonging to soldier, sailor, airman.

Imprisonment of 3 months or a fine of Rs. 500 or with both.

Cognizable

Bailable

Any Magistrate.

Proposals for Reform 

The Fifth Law Commission Report suggested certain reforms to be made under Chapter VII of the Indian Penal Code. Few recommendations are discussed as follows:

  • The commission recommended that this chapter should not be confined only to Army, Navy and Airforce but should apply to all the armed forces in the Union of India. Accordingly, it proposed to change the heading of the chapter from offences relating to Army, Navy and Airforce to offences relating to Armed Forces. The commission also suggested that the terms ‘Army’, ‘Navy’, ‘Air Force’ should be comprehensively defined under a new Section 130A.
  • The commission proposed to revise Section 131, the commission propounded that the punishment of life imprisonment given in cases where mutiny is not committed in consequence of abetment or where it is only an attempt to seduce an officer is ‘unduly heavy’. It proposed that, if any person abets the committing of mutiny by any officer of the defence service personnel, and if mutiny is committed as a consequence of such abetment be punished with death, or life imprisonment or rigorous imprisonment of 14 years and also with fine. In any other case, the punishment should be imprisonment of 10 years and fine.
  • Section 135 does not differentiate between cases when the abetment of desertion happens and when the desertion takes place as a consequence of abetment. Accordingly, the commission recommended that under Section 135 where the offence of desertion actually happens, the punishment to be increased up to 5 years.
  • It recommended that existing Section 137 be omitted because the Section ‘does not appear to be of any consequence’.
  • It proposed to add Section 138A and Section 138B to this chapter, which relates to offences of ‘inciting mutiny or other act of insubordination’ and ‘dissuasion from enlisting and instigating to mutiny or insubordination after enlistment to armed forces’ respectively, punishable with simple or rigorous imprisonment for a term extending up to 3 years or with fine or with both.
  • The commission proposed to increase the punishment in case of abetment in an act of insubordination when abetment is successful, from imprisonment for 6 months to extend it for a term up to 2 years.
  • The commission also suggested to revise Section 140, in order to increase the punishment from imprisonment of 3 months to extend it for a term up to 6 months and also with an unlimited fine.

These recommendations of the Fifth Law Commission were given effect in the Indian Penal Code (Amendment) Bill, 1978. The Fourteenth Law Commission supported the proposed changes and even affirmed the substance of the 1978 Bill. Yet, these recommendations have not been converted into statutory provisions as the Amendment Bill passed in the Lok Sabha in 1978 lapsed, due to its dissolution.

Conclusion

The Army, Navy and Air Force have a certain set of principles for the officers serving in them, but Chapter VII of the Indian Penal Code is from the perspective of the civilians. This chapter talks about those offence of abetment which might be committed by a regular citizen in connection to an official of the defence service. The fundamental objective is to bring discipline among the officers of the Army, Navy and Air Force under the Government of India. However, it is somewhat confusing that despite the fact that these offences are made punishable, cannot be dealt with under the Indian Penal Code.

References


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