Sections 8(1)(2)/59(2) & 94—Since the appellants were not on active service within meaning of section 8(1)of the Army Act, 1952 the appellants cannot be tried under the Army Act and as such, there was no offence of mutiny to murder in the facts of the instant case. Even if one were to accept for the sake of argument that offences committed were civil offences within the meaning of section 8(2) read with section 59(2) of the Army Act, there is no legal bar in trying those accused persons in the Sessions Court in compliance with the provisions of section 94 of the Army Act read with section 549 of the CrPC. There is no legal bar for trial of the appellants in the Criminal Court in the relevant case, inasmuch as, the offences committed are in the nature of murder simpliciter. (Per Md Muzammel Hossain J) Major Baziul Huda vs State 62 DLR (AD) 1.
Section 8(2)—Plea of ‘mutiny’—Since the prosecution witnesses did not say anything in support of the plea of mutiny, the defence ought to have made out a case at least by way of suggestion to the witnesses that the army officers involved in the mutiny submitted their charter of demands to the authority in the armed forces and that as their demands were not redressed, they revolted. Secondly, if there was rebellion as claimed the rebellious force would have attacked their commanding officer, and if the commanding officer was involved, they would have attacked the Chief of army staff but they did not attack them, rather killed the President which proved that it was not a mutiny. (Per SK Sinha J) Major Baziul Huda vs State 62 DLR (AD) 1.
Section 31—The charges against the accused were for conspiracy and for killing the President Bangabandhu Sheikh Mujibur Rahman, his family members and relations, which has got no relevance too mutiny as detailed in the aforesaid Acts or Ordinance. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.
Section 31(a)(b)(c) and (d)—Clause (a) of section 31 of the Army Act relates to the substantive offence of mutiny and insubordination, while other three sub-clauses (b), (c) and (d) relate to the abetment of the offence of mutiny. In order to bring an offence of mutiny within the ambit of the Act, there must be evidence of overthrowing or resisting lawful authority of the armed forces or disobeying the authority in such circumstances as to make the disobedience subversive of discipline or to impede the performance of any duty or service in the armed forces of Bangladesh. There is nothing on record to show that the appellants and other accused have collectively in subordinated or defied or disregarded the authority in the armed forces or refused to obey authority in order to bring their act within the ambit of mutiny or abetment for mutiny. (Per SK Sinha J). Major Baziul Huda vs State 62 DLR (AD) 1.
Section 94—Where a criminal Court and a Court Martial has each jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed authority to decide before which Court the proceeding shall be instituted State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.
Sections 94/95—Concurrent Jurisdiction— Sections 94 and 95 of the Army Act provide for concurrent jurisdiction to the Court Martial and ordinary criminal Court. Section 94 envisages that in respect of a civil offence, when a Court Martial and a criminal Court have concurrent jurisdiction, the prescribed officer of the army has discretion to decide before which Court the proceeding shall be instituted and if he decides that the case shall be instituted before a Court Martial, it shall direct that the accused persons be detained in military custody. In a case under section 95 of the Army Act, when a criminal Court having jurisdiction is of the opinion that proceedings ought to be instituted before itself in respect of any civil offence, it may by written notice require the prescribed officer to produce the offender to nearest Magistrate or to postpone proceedings pending a reference to the Government. (Per Md Muzammel Hossain J). Major Bazlul Huda vs State62 DLR (AD) 1.