109. (1) At all trials by courts-martial, as soon as the court is assembled, the names of the president and members shall be read over in the presence of the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court. (2) If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers appointed as members of the court shall, in the absence of the challenged officer, decide on the objection. (3) If objection is made in respect of the president, and allowed by one-half or more of the officers entitled to vote, the court shall adjourn until a new president is appointed by the convening authority. (4) If the objection is made in respect of any member of the court other than the president and allowed as specified above, the member objected to shall retire, and his vacancy shall be filled by the first officer nominated as a spare member, under sub-section (2) of section 99 who is qualified to be and is not already a member of the court. (5) When no objection is made, or objection made has been disallowed, or the place of every officer successfully objected to has been filled by another officer to whom no objection is made, or objection made is disallowed, the court shall proceed with the trial.

110. (1) An oath or affirmation in the prescribed form shall be administered in open court to every member of every court-martial and to the judge advocate, if any, before the commencement of the trial. (2) An oath or affirmation in the prescribed form shall be administered in open court to every officer, if any, in attendance on a court-martial for the purpose of instruction, and also to every shorthand writer or interpreter, if any. (3) Every person giving evidence before a court-martial shall be examined after being duly sworn or affirmed in the prescribed form: Provided that where a court-martial is satisfied that a child of tender years is unable to understand the nature of an oath or affirmation, it may dispense with the administration of oath or affirmation.

111. (1) Every decision of a court-martial shall be passed by an absolute majority of votes; and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused: Provided that no sentence of death shall be passed without the concurrence, in the case of a general court-martial of at least two-thirds of the members, and in the case of a summary general court-martial of all the members of the court. (2) In matters other than an objection under section 109 or a finding or a sentence, the president shall have a second or casting vote.

112. Where higher punishment for any offence under this Ordinance depends upon the intent with which or the circumstances in which the offender acts, and any person is charged with committing that offence with such intent or in such circumstances, he may be found guilty of committing that offence without such intent or circumstances and awarded lower punishment.

113. (1) Where a person is charged with an offence under any provision of this Ordinance other than sections 78 and 79 but the offence is not proved, he may be found guilty of-(a) an attempt or abetment to commit the offence charged; or (b) an offence of the same class as the offence charged and not involving greater punishment. (2) Where a person is charged with a civil offence under sections 78 and 79 but that offence is not proved, he may be found guilty and convicted of any other civil offence of which he could be found guilty and convicted by a criminal Court in a trial for the same offence as he is charged with.

114. Subject to the provisions of this Ordinance, the rules of evidence generally followed in criminal Courts shall apply to proceedings before a court-martial.

115. A court-martial shall take judicial notice of any matter generally within the knowledge of its members as officers of the navy.

116. (1) The convening officer, the president of the court, the judge advocate, or the commanding officer of the accused person may, by summons under his hand, require the attendance, at a time and place to be mentioned in the summons, of any person either to give evidence or to produce any document or thing. (2) In the case of a witness subject to service law the summons shall be sent to his commanding officer and such officer shall serve it upon him accordingly. (3) In the case of any other witness, the summons may be served in such manner as may be prescribed or may be sent to the magistrate within whose jurisdiction he may be or resides and such magistrate shall cause service of the summons as if the witness were required to appear or produce the document or thing in his own Court. (4) When a witness is required to produce any particular document or thing the summons shall describe it with reasonable precision.

117. (1) Whenever, in the course of a trial by a court- martial, it appears to the Court that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, in the circumstances of the case, would be unreasonable, such Court may, if it thinks necessary, issue a commission in the manner specified in Chapter XL of the Code of Criminal Procedure, 1898, according as the witness resides in a place in or outside Bangladesh. (2) The Court may be adjourned for a specified time reasonably sufficient for the execution and return of the commission. (3) Such a commission shall be executed by the magistrate or officer to whom it is issued in the same manner as if it was issued in the trial of a warrant case under the Code of Criminal Procedure, 1898, or of any corresponding law in force at the place where the evidence is recorded; and shall be returned, together with the deposition of the witness examined thereunder to the Judge Advocate-General. (4) The Judge Advocate-General will forward the same to the court-martial who issued it or, if the said court-martial is in the meanwhile, dissolved to another court-martial convened for the trial of the accused in respect of the same charge and any deposition so taken shall be recorded in evidence and shall form part of the proceedings of the court.

118. In any proceeding under this Ordinance, any application, certificate, warrant, reply or other document purporting to be signed by an officer in the service of the ¹[Republic] shall, on production, be presumed to have been duly signed by the person by whom and in the character in which it purports to have been signed, until the contrary is shown.

119. (1) Any enrolment paper purporting to be signed by an enrolling officer shall, in any proceedings under this Ordinance, be evidence that the person enrolled gave the answer which he is therein represented to have given. (2) The enrolment of such person may be proved by the production of the original or a copy of his enrolment paper purporting to be certified to be a true copy by the officer having the custody of the enrolment paper.

120. (1) Where any letter, return or other document with respect to a person,- (i) having, or not having, at any time served in, or been dismissed or discharged from any part of the armed forces of Bangladesh;(ii) having, or not having, held any rank or appointment in, or been posted or transferred to any part of such forces, or having or not having served in any particular country or place; or(iii) being, or not being, authorised to use or wear any military, naval or air force decoration, medal, medal ribbon, badge, wound stripe or emblem, the use or wearing of which by an unauthorised person is, by any law for the time being in force an offence,purports to have been signed by or on behalf of a Secretary to the Government, or by an officer of any of the headquarters of the armed forces or by the commanding officer or the officer having the custody of the records of any portion of those forces or of any ship or establishment of the Bangladesh Navy to which such person appears or alleges to belong or to have belonged shall be evidence of the facts stated in such letter, return or other document. (2) Any army, navy or air force list or gazette purporting to have been published by the competent authority shall be evidence of the status, rank and appointment of the officer or warrant officer and also of the unit or branch of the service to which he belongs according as it is shown in the list or gazette. (3) Where a record made in any service book in pursuance of this Ordinance or of any rules made thereunder or otherwise in pursuance of duty purports to have been signed by the commanding officer or by the officer whose duty it is to make such record, such record shall be evidence of the facts therein stated. (4) A copy of any record in any service book purporting to have been certified as a true copy by the officer having the custody of such book shall be evidence of such record. (5) Where any person subject to this Ordinance is being tried on a charge of desertion or of absence without leave and such person has surrendered himself into the custody of, or has been apprehended by, any officer, or any portion, of the armed forces of Bangladesh, a certificate purporting to be signed by such officer, or by the commanding officer of that portion of the armed forces and stating the fact, date and place of such surrender or apprehension, shall be evidence of the matters so stated. (6) Where any person subject to this Ordinance is being tried on a charge of desertion or of absence without leave and such person has on arrest or surrender been taken to a police station in Bangladesh, a certificate purporting to have been signed by the officer-in-charge of that police station, and stating the fact, date and place of such surrender or apprehension shall be evidence of the matters so stated. (7) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to the Government upon any matter or thing duly submitted to him for examination or analysis and report may be used as evidence in any proceeding under this Ordinance. (8) If it is proved that a person charged with an offence under this Ordinance has absconded and that there is no immediate prospect of arresting him, the commanding officer or other prescribed person may, in his absence, examine any persons who might appear to him to be acquainted with the case and record their depositions on oath and any such deposition may on the arrest of such person be used in evidence against him in any proceeding under this Ordinance, if the deponent is dead or incapable of giving evidence, or his attendance cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable.

121. (1) If at any trial, or other proceedings for desertion or absence without leave, the accused states in his defence any sufficient or reasonable excuse for his unauthorised absence, and refers in support thereof to any officer in the service of the ²[Republic] or if it appears that any such officer is likely to prove or disprove the said statement in the defence, the Court or officer conducting the proceedings shall address such officer and adjourn the Court or proceedings until his reply is received. (2) The written reply of any officer so addressed shall, if signed by him, be received in evidence and have the same effect as if made on oath before the Court or officer conducting the proceedings. (3) If the court-martial is dissolved before receipt of such reply or if it omits to comply with the provisions of this section, the convening officer may, at his discretion, annul the proceedings and order a fresh trial by the same or another court-martial.

122. (1) When any person subject to this Ordinance has been convicted by a court-martial of any offence, such court-martial may inquire into, and receive and record evidence of any previous conviction of such person, either by a court-martial held under this Ordinance or under any other enactment, or by a criminal Court, or of any previous award of punishment under sections 102 and 103 (to such extent as may be prescribed), and may further inquire into and record the general character of such person, and such other matters as may be prescribed. (2) Evidence received under this section may be either oral or in the shape of entries in, or certified extracts from service records; and it shall not be necessary to give notice before trial to the person tried that evidence as to his previous convictions or character will be received.

123. (1) Whenever, in the course of a trial by a court-martial, it appears to the court that the person charged is by reason or unsoundness of mind incapable of making his defence, or that he committed the act alleged but was by reason of unsoundness of mind incapable of knowing the nature of the act or knowing that it was wrong or contrary to law, the court shall record a finding accordingly. (2) The president of the court shall forthwith report the case to the confirming officer. (3) The confirming officer to whom a case is reported under sub-section (2) may, if he does not confirm the finding, take steps to have the accused person tried by the same or another court-martial for the offence with which he was charged. (4) The confirming officer confirming a finding in any case so reported to him under sub-section (2) shall order the accused person to be kept in custody in the prescribed manner and shall report the case for the orders of the Government. (5) On receipt of a report under sub-section (4) the Government may order the accused person to be detained in a lunatic asylum or other suitable place of safe custody.

124. Where any accused person, having been found by reason of unsoundness of mind to be incapable of making his defence, is in custody or under detention under section 123, the officer commanding the ship or naval establishment within the area of whose command the accused is in custody or is detained, or any other officer prescribed in this behalf, may-(a) if such person is in custody under sub-section (4) of section 123, on the report of medical officer that he is capable of making his defence, or(b) if such person is detained in a jail under sub-section (5) of section 123, on a certificate of the Inspector General of Prisons, and if such person is detained in a lunatic asylum under the said sub-section, on a certificate of any two or more of the visitors of such asylum that he is capable of making his defence,take steps to have such person tried by the same or another court-martial for the offence with which he was originally charged, or, if the offence is a civil offence, by a criminal Court.

125. A copy of every order made by an officer under section 124 for the trial of the accused person shall forthwith be sent to the Government.

126. Where any person is in custody under sub-section (4) of section 123, or under detention under sub-section (5) of that section-(a) if such person is in custody under the said sub-section (4), on the report of a medical officer, or(b) if such person is detained under the said sub-section (5), on a certificate from any of the authorities mentioned in clause (b) of section 124,that, in the judgment of such officer or authority such person may be released without danger of his doing injury to himself or to any other person, the Government may order that such person be released, or detained in custody, or transferred to a public lunatic asylum if he has not already been sent to such an asylum.

127. Where any relative or friend of any person, who is in custody under sub-section (4) of section 123 or under detention under sub-section (5) of that section, desires that he should be delivered to his care and custody, the Government may, upon application by such relative or friend and on his giving security to the satisfaction of ³[the Government] that the person delivered shall-(a) be properly taken care of and prevented from doing injury to himself or to any other person ; and(b) be produced for the inspection of such authority, and at such times and places, as the Government may direct,order such person to be delivered to such relative or friend.

128. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before a court-martial during a trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the trial and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

129. (1) After the conclusion of a trial before a court-martial, the court or the officer confirming the finding or sentence of such court-martial or any authority superior to such officer, may make such order as it or he thinks fit for the disposal by destruction, confiscation, delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before the court or in its custody, or regarding which any offence appears to have been committed or which has been used for the commission of any offence. (2) Where any order has been made under sub-section (1) in respect of property regarding which an offence appears to have been committed, a copy of such order signed and certified by the authority making the same may, whether the trial was held within Bangladesh or not, be sent to a magistrate in any district in which such property for the time being is, and such magistrate shall thereupon cause the order to be carried into effect as if it was an order passed by such magistrate under the provisions of the Code of Criminal Procedure, 1898. Explanation.- In this section the term “property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise.