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.

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.

The Army Act, 1952
Section 8(1), 8(2), 59(2), 94
Code of Criminal Procedure, 1898
Section 549
Since the accused-appellants were not on active service within the meaning of Section 8(1) of the Army Act,1952 the accused persons cannot be tried under the Army Act and, as such, there was no offence of mutiny leading to murder in the facts of the instant case. Moreover, even if one were to accept for 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 Cr.P.C. In that view of the matter, there is no legal bar for trial of the accused appellants in the Criminal Court in the relevant case inasmuch as the offences committed are in the nature of murder simplicitor. (Per Md. Muzammel Hossain, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386] ....View Full Judgment

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.

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.

Sections 94 and 95 of the Army Act it appears that in the case of murder there is concurrent jurisdiction by both the Court-Martial and the ordinary criminal Court. But Section 59(2) of the Army Act stipulates that a case of murder can not be tried under the Army Act if the victims are not subject to the Army Act unless the accused commits the offence while on active service or at any place outside Bangladesh or at a frontier post specified by the Government. It also appears that application of Section 59(1) is also limited by Section 92(2) of the Army Act which provides that trial shall commence within 6 months after he had ceased to be subject to this Act. It transpires that in the instant case there is concurrent jurisdiction, the Sessions Court had complied with all formalities necessary under Sections 94 and 95 of the Army Act and Section 549 of the Code of Criminal Procedure by sending notice to the Chief of Staff, Army under Rule 2 of Criminal Procedure Rules (Military Offenders) 1958 with regards to the trial of the accused persons as evidenced by order No.12 dated 03.04.1997. In the case of M S K Ibrat –Vs- the Commander in Chief, Royal Pakistan Navy reported in 8 DLR (SC) 128 the accused, an officer of Pakistan Navy, was charged with theft and was produced before the Special Judge who addressed a letter to the Commanding Officer, in accordance with Section 549 of the Code of Criminal Procedure, enquiring whether the appellant was to be tried by a Court Martial or the Judge himself. The Commanding Officer in reply informed that the accused should be tried by Court Martial. Thereafter the Judge handed over the accused to the Naval Authority which was challenged. Supreme Court held that the Judge was correct in handing over the accused persons to the Naval Authority after receiving reply from the Commanding Officer. (Per Md. Muzammel Hossain,J) ...Major Md. Bazlul Huda(Artillery) =VS= The State (Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386] ....View Full Judgment