Defence Forces (Temporary Provisions) Act, 1923. Rule of Procedure (Defence Forces), 1946.
Statutory Instruments
Source: Statutory Instruments

num: 1
paragraphs: Short title and commencement.
num: 2
paragraphs: Interpretation.—abstract of evidence.
Act.
commanding officer.
investigating officer.
proper military authority.
Rules of 1923.
summary of evidence.
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paragraphs: Application of Rules.
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paragraphs: Revocation of Rules of 1923.
PART II.—ARREST AND TRIAL.
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paragraphs: Delay Report.
INVESTIGATION OF CHARGES.
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paragraphs: Investigation by Commanding Officer or Investigating Officer.
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paragraphs: Reconsideration by accused of election.
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paragraphs: Summary award not to be increased or otherwise altered by commanding officer or investigating officer.
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paragraphs: Order for trial without preliminary investigation.
TAKING OF SUMMARY OR ABSTRACT OF EVIDENCE.
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paragraphs: Summary of evidence.
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paragraphs: Abstract of evidence.
FRAMING CHARGES.
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paragraphs: Charge-sheet and charge.
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paragraphs: Commencement of charge sheet.
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paragraphs: Contents of charge.
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paragraphs: Validity of charge-sheet.
APPLICATION FOR TRIAL.
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paragraphs: Application for courtmartial.
CONVENING COURTSMARTIAL.
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paragraphs: Procedure for convening.
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paragraphs: Appointment of judge-advocate.
PREPARATION OF DEFENCE.
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paragraphs: Preparation of defence by accused person.
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paragraphs: Joint trial of several accused persons.
PROCEDURE AT TRIAL—CONSTITUTION OF COURT.
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paragraphs: Assembly of court.
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paragraphs: Procedure on assembly of court.
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paragraphs: Inability of officer named as member of court to attend.
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paragraphs: Adjournment for insufficient number of officers.
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paragraphs: Inquiry by court as to legal constitution and fitness of accused to stand his trial.
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paragraphs: Inquiry by court as to amenability of accused and validity of charge.
PROCEDURE AT TRIAL—CHALLENGE AND SWEARING.
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paragraphs: Appearance of prosecutor and accused.
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paragraphs: Proceedings for challenge of members of court.
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paragraphs: Swearing of members.
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paragraphs: Swearing of judge-advocate and other persons.
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paragraphs: Substitution of solemn declaration for oath.
PROCEDURE AT TRIAL—PROSECUTION.
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paragraphs: Arraignment of accused.
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paragraphs: Objection by accused to charge.
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paragraphs: Amendment of charge.
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paragraphs: Special plea to the jurisdiction.
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paragraphs: General plea of " Guilty " or " Not Guilty."
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paragraphs: Plea in Bar.
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paragraphs: Application for adjournment.
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paragraphs: Procedure after plea of " Guilty."
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paragraphs: Withdrawal of plea of " Not Guilty."
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paragraphs: Plea of " Not Guilty " and case for the prosecution.
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paragraphs: Submission as to case for prosecution.
PROCEDURE AT TRIAL—DEFENCE.
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paragraphs: At close of prosecution accused to be informed of his rights.
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paragraphs: Procedure where no evidence as to facts given by defence.
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paragraphs: Procedure where evidence as to facts given for defence by accused only.
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paragraphs: Procedure where evidence as to facts given for defence by accused and other witnesses.
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paragraphs: Procedure where evidence as to facts given for defence by witnesses (other than accused) but not by the accused.
PROCEDURE AT TRIAL—SUMMING UP.
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paragraphs: Summing up by judge-advocate.
PROCEDURE AT TRIAL—FINDING AND SENTENCE.
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paragraphs: Consideration of finding.
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paragraphs: Form and record of finding.
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paragraphs: Procedure on acquittal on every or any charge.
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paragraphs: Procedure on conviction.
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paragraphs: Mode of forfeiting seniority of rank of non-commissioned officer.
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paragraphs: Sentence.
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paragraphs: Recommendation to mercy.
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paragraphs: Signing and transmission of proceedings.
CONFIRMATION AND REVISION.
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paragraphs: Finding not requiring confirmation.
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paragraphs: Revision.
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paragraphs: Promulgation.
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paragraphs: Mitigation of sentence or partial mitigation.
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paragraphs: Confirmation notwithstanding informality in or excess of punishment.
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paragraphs: Confirmation notwithstanding technical or other deviation.
INSANITY.
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paragraphs: Provisions as to findings of insanity and custody of insane person.
GENERAL PROVISIONS AS TO PROCEEDINGS OF COURT.
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paragraphs: Seating of members.
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paragraphs: Responsibility of president and judge-advocate.
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paragraphs: Power of court over address of prosecutor and accused.
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paragraphs: Procedure on trial of accused persons together.
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paragraphs: Separate charge-sheets.
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paragraphs: Sitting in closed court.
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paragraphs: Time for trial.
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paragraphs: Continuity of trial and adjournment of court.
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paragraphs: Suspension of trial.
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paragraphs: Proceedings on death or illness of accused.
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paragraphs: Presence throughout of all members of court.
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paragraphs: Taking of opinions of members of court.
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paragraphs: Procedure on incidental question.
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paragraphs: Swearing of court to try several persons.
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paragraphs: Swearing of interpreter and shorthand writer.
GENERAL PROVISIONS AS TO WITNESSES AND EVIDENCE.
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paragraphs: Evidence to be relevant and according to rules in courts of State.
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paragraphs: Judicial notice.
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paragraphs: Calling of all prosecutor's witnesses.
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paragraphs: Calling of witnesses whose evidence is not contained in summary or abstract of evidence.
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paragraphs: List of witnesses of accused.
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paragraphs: Procuring attendance of witnesses.
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paragraphs: Adjournment of court for non-attendance of witnesses.
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paragraphs: Withdrawal of witnesses from court.
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paragraphs: Swearing of witnesses.
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paragraphs: Mode of questioning witnesses.
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paragraphs: Examination and cross-examination.
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paragraphs: Questions to witness by members of court or judge-advocate.
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paragraphs: Recalling witnesses and calling of witnesses in reply.
COUNSEL, DEFENDING OFFICER AND FRIEND OF ACCUSED.
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paragraphs: Counsel allowed.
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paragraphs: Counsel for prosecutor.
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paragraphs: Counsel for accused.
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paragraphs: General Rules as to counsel.
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paragraphs: Defending officer and friend of accused.
PROCEEDINGS.
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paragraphs: Record in proceedings of transactions of courtmartial.
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paragraphs: Custody and inspection of proceedings.
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paragraphs: Transmission of proceedings after finding.
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paragraphs: Preservation of proceedings.
num: 101
paragraphs: Loss of proceedings.
JUDGE ADVOCATE.
num: 102
paragraphs: Substitute on death, illness or absence of judge-advocate.
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paragraphs: Powers and duties of judge-advocate.
EXCEPTION FROM RULES.
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paragraphs: Suspension of Rules on the ground of service exigencies or the necessities of discipline.
PART III.—COURT OF INQUIRY AS TO ILLEGAL ABSENCE.
num: 105
paragraphs: Court of Inquiry as to illegal absence under Sec. 119.
PART IV.—MISCELLANEOUS.
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paragraphs: Exercise of powers vested in holder of military office.
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paragraphs: Cases unprovided for.
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paragraphs: Form in Appendices.
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paragraphs: Meaning of " month " in sentences of imprisonment or detention.
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paragraphs: Reports and applications to superior authority.
APPENDICES.
APPENDIX I.
COURTMARTIAL FORMS.
Form of charge sheet.
Form of application for a courtmartial.
Form of declaration of military exigencies or the necessities of discipline under Rule 104 of Rules of Procedure (Defence Forces) 1946.
Form of summons to a civilian witness in the case of a summary of evidence.
Form of summons to a civilian witness in the case of a courtmartial.
Form of Order for the assembly of a general or local courtmartial.
Form of medical certificate.
APPENDIX II.
FORMS OF OATHS AND DECLARATIONS.
Oaths.
President and members.
Judge Advocate.
Officer under instruction.
Shorthand-writer.
Interpreter.
Witness.
Manner of taking the Oath.
Solemn declarations.
APPENDIX III.
FORMS OF COMMITMENT TRANSFER AND DISCHARGE.
Commitment.
Commitment for safe custody.
Detention—commanding officer's award.
Detention—uncommuted sentence.
Detention—commuted sentence.
Imprisonment uncommuted sentence.
Imprisonment commuted sentence.
Penal servitude.
Temporary civil custody.
Transfer.
Imprisonment.
Detention.
Imprisonment—delivery into military custody.
Detention—delivery into military custody.
Discharge.
Imprisonment or detention by courtmartial sentence.
Detention—commanding officer's award.
Release from confinement for safe custody.
I, OSCAR TRAYNOR, Minister for Defence, in exercise of the powers conferred on me by Section 125 of the Defence Forces (Temporary Provisions) Act, 1923 (No. 30 of 1923), and of every and any other power me in this behalf enabling, do hereby make the following Rules :—
PART I. —PRELIMINARY AND GENERAL.
1 Short title and commencement
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paragraphs: —(1) These Rules may be cited as the Rules of Procedure (Defence Forces), 1946.
(2) These Rules shall come into operation on the 15th day of May, 1946.
2 Interpretation.
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paragraphs: —(1) In these Rules :—
Abstract of evidence.
the expression " abstract of evidence " means a statement of the evidence of witnesses proposed to be called at the trial of an accused person which has been prepared in accordance with Rule 11 of these Rules ;
Act.
the expression " the Act " means the Defence Forces (Temporary Provisions) Act, 1923 (No. 30 of 1923), as amended or extended by any subsequent enactment, whether passed before or after the making of these Rules ;
commanding officer.
the expression " commanding officer " means, in relation to any person, the officer declared by Regulations, made under the Act, to be his commanding officer for the purposes of sections 76, 81, 82, 85, 86, 86A, 87B, 93, 117, 118, 120, 125, 128, 131 and 136 of the Act and section 49 of the Defence Forces (Temporary Provisions) (No. 2) Act, 1940 (No. 11 of 1940) ;
the expression " investigating officer " means an officer, being—
investigating officer.
(a) an officer by whom a charge is to be investigated under subsection (1) of section 49 of the Defence Forces (Temporary Provisions) (No. 2) Act, 1940 , (No. 11 of 1940), or
(b) an authorised officer for the purposes of the said section 49 ;
proper military authority.
the expression " proper military authority " when used in relation to any power, duty, act or other matter, means such military authority as, in pursuance of Regulations made under the Act or the custom of the service, exercises or performs that power or duty or is concerned with that act or matter ;
Rules of 1923.
the expression " the Rules of 1923 " means the Rules of Procedure, 1923, as amended by any subsequent rules ;
summary of evidence.
the expression " summary of evidence " means the evidence in relation to a charge against an accused, taken down in writing in accordance with Rule 10 of these Rules, and includes any statement made by the accused and taken down in accordance with paragraph (4) of the said Rule 10, and any written statement of evidence included in the summary of evidence in accordance with paragraph (7) of the said Rule 10.
(2) Time, for the purpose of any proceeding under these Rules, shall be reckoned exclusive of Sunday or any holiday.
(3) The Interpretation Act, 1937 (No. 38 of 1937), applies to these Rules.
3 Application of Rules.
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paragraphs: These Rules shall apply in every place, whether within or without the State.
4 Revocation of Rules of 1923.
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paragraphs: —(1) The Rules of 1923 are hereby revoked.
(2) Any courtmartial, proceeding or thing held, done or commenced before the commencement of these Rules, under the Rules of 1923, shall be as valid and may be completed and carried into effect as if the Rules of 1923 were still in force.
PART II. —ARREST AND TRIAL.
5 Delay Report.
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paragraphs: Where a person subject to military law (not on active service) is detained in military custody for a period of ten days without having his case summarily disposed of or without an application being forwarded in accordance with Rule 16 of these Rules for the trial of such person, the commanding officer (or other officer who should cause the summary or abstract of evidence to be taken or prepared), will forthwith report to the officer, to whom such application would be made, on the steps taken in the case and on the necessity for continued custody. A similar report shall be forwarded every ten days until a courtmartial is assembled or the person is released from custody.
INVESTIGATION OF CHARGES.
6 Investigation by Commanding Officer or Investigating Officer.
num: 6
paragraphs: —(1) The commanding officer or investigating officer will cause the person preferring the charges, together with all available witnesses mentioned on the charge sheet, and also the accused and any available witnesses desired by the accused, and any other available witnesses of whom he may learn, to appear before him at a stated time (to be fixed either by Standing Orders or otherwise) at his office or headquarters, or other available place, within 24 hours (where practicable) of receipt by him of the charges, with all available evidence, including the service record of the accused, and will there informally investigate the charges. The witnesses (except the accused) may, and, if the accused desires, will be sworn, but no record will be made of the testimony, and no counsel or representative will (save in capital cases) be allowed to appear for the accused or for the prosecution. At such investigation full opportunity will be given to the accused to cross-examine the witnesses whose statements are unfavourable to him, and to present anything he may desire on his own behalf, either in defence or mitigation ; and all available witnesses requested by the accused will be called and examined.
(2) If upon such informal investigation the commanding officer or the investigating officer is of opinion that the charge ought not to be proceeded with, he shall dismiss the charge. If it appears to him that there is no substantial evidence tending to show that an offence has been committed, or no substantial evidence tending to show that the accused is guilty of the offence charged, he will dismiss the charge ; but if, in any case, he finds there is substantial evidencetending to show that the accused (whether or not probably guilty of the offence, or some of the offences charged) is guilty of some other offence or offences, he may permit new or additional or amended charges to be preferred (or may himself prefer them) and proceed as if such new or additional or amended charges had been among the ones originally before him.
(3) Where evidence is taken on oath before the commanding officer or investigating officer he shall administer the oath in the same form as provided for a courtmartial or in the case of a declaration the like form of declaration.
7 Reconsideration by accused of election.
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paragraphs: Where an accused, having a right to elect to be tried by courtmartial so elects, the commanding officer shall thereupon adjourn the case for twenty-four hours to give the accused an opportunity of reconsidering the matter.
8 Summary award not to be increased or otherwise altered by commanding officer or investigating officer.
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paragraphs: When the commanding officer or an investigating officer has once awarded punishment for an offence he cannot afterwards increase or otherwise alter the punishment for that offence.
9 Order for trial without preliminary investigation.
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paragraphs: Where a person subject to military law has been ordered to be tried by courtmartial under the provisions of Section 87b of the Act, a true copy of the order dispensing with preliminary investigation and ordering such trial shall be served on the accused by an officer. The fact and date of service of such copy shall be endorsed on the original order by the officer effecting service and the order shall be returned to the officer who made it.
TAKING OF SUMMARY OR ABSTRACT OF EVIDENCE.
10 Summary of evidence.
num: 10
paragraphs: —(1) When an accused has been remanded for courtmartial, the evidence of all the witnesses who gave evidence against the accused before the commanding officer or the investigating officer, and of any other witnesses whose evidence is relevant, shall be taken down in writing in the presence of the accused before the commanding officer or the investigating officer or an officer acting on behalf of the commanding officer or the investigating officer.
(2) The accused may put questions in cross-examination to any witness, and the questions, with the answers, shall be added in writing to the evidence taken down.
(3) The evidence of each witness, when taken down as provided in paragraphs (1) and (2) of this Rule, shall be read over to him, and shall be signed by him, or, if he cannot write his name, shall be attested by his mark and witnessed.
(4) After all the evidence against him has been recorded, the accused will be asked " Do you wish to make any statement or to give evidence upon oath ? You are not obliged to say anything or give evidence unless you wish to do so, but whatever you say or any evidence you give will be taken down in writing, and may be given in evidence." Any statement or evidence of the accused will be taken down, but he shall not be cross-examined on it. If the accused is tried by courtmartial no evidence will be admitted at the trial of anystatement or evidence he may have made or given at the taking of the summary of evidence before the above caution was given to him.
(5) The accused may call and examine witnesses in his defence and their evidence will be taken as provided in the case of witnesses called for the prosecution.
(6) Save as provided with regard to the accused in paragraph (4) of this Rule, the evidence of all witnesses shall be taken on oath, and the oath will be administered by the officer taking the summary in the same form as is provided for a witness at a courtmartial.
(7) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of the service or on other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing) be readily procured, a written statement of such person's evidence purporting to be signed by him may be read to the accused and included in the summary of evidence : provided that, if such person can be compelled to attend, the accused may demand that he shall attend for cross-examination.
(8) The officer taking the summary may put such questions to witnesses as he may find necessary to elicit the facts relevant to the charges ; but he shall not cross-examine the accused.
(9) No counsel or representative will (save in capital cases) be allowed to appear for the accused or for the prosecution at the taking of the summary.
(10) (i) Any witness who is not subject to military law may be summoned to attend under the hand of the commanding officer of the accused, the investigating officer or a Divisional or Command Legal Officer. The summons to such witness shall be in the form specified in Appendix I to these Rules.
(ii) An additional summary or summaries of evidence may be taken by or on behalf of the commanding officer or the investigating officer in the same manner as herein provided for a summary of evidence.
11 Abstract of evidence.
num: 11
paragraphs: Where a person subject to military law has been ordered to be tried by courtmartial under the provisions of Section 87b of the Act, the officer designated in that behalf in the order shall cause to be prepared a statement of the evidence of the witnesses proposed to be called for the prosecution at the trial without such statement being taken in the presence of the person so ordered for trial, and shall then proceed as directed by Rule 16 of these Rules.
FRAMING CHARGES.
12 Charge-sheet and charge.
num: 12
paragraphs: —(1) A charge-sheet shall contain the whole issue or issues to be tried by a courtmartial at one time.
(2) A charge means an accusation contained in a charge-sheet that a person amenable to military law has been guilty of an offence.
(3) A charge-sheet may contain one or more charges, but each charge shall allege only one offence.
(4) A charge-sheet may contain alternative charges.
13 Commencement of charge-sheet.
num: 13
paragraphs: Every charge-sheet will begin with the name and description of the person charged, and should state, in the case of an officer, his rank and name and unit (if any) ; and in the case of a soldier, his number, rank and name, and unit (if any), and where he does not at the time of the trial belong to the Forces, should show by the description of him, or directly by an express averment, that he is amenable to military law in respect of the offence charged.
14 Contents of charge.
num: 14
paragraphs: —(1) Each charge should state one offence only, and in no case should an offence be described in the alternative in the same charge.
(2) Each charge should be divided into two parts :—
(a) the statement of the offence ; and
(b) the statement of the particulars of the Act, neglect, or omission constituting the offence.