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Chapter-12 Approval of Case and Rehearing (Revision)

Chapter-12 Approval of Case and Rehearing (Revision)
108. Approval of the decision of penalty of General Court Martial: The  decision or penalty issued by the General Court Martial shall be approved by the Government of Nepal or the officer authorized by Government of
Nepal.

109. Approval of the decision or penalty of Summary General Court Martial: The decision or penalty issued by the Summary General Court Martial shall be approved by the person who convened the Court Martial or
the senior officer if he/she (who convened the Summary General Court Martial) ordered to submit the decision or penalty to the senior level.

110. Approval of the decision of the District Court Martial: The decision or penalty issued by the District Court Martial shall be approved by the officer who is empowered to convene the General Court Martial or an
officer authorized by him/her.

111. Procedures applicable in the approval of a case: For the purpose of approval of a case pursuant to Sections 108, 109 and 110, the Court Martial which decided the case shall prepare, within Seven days from the date of the decision, the full text of decision along with clear grounds and reasons thereof, and shall forward the concerned file for approval within Thirty days. The agency (Nikaya) or authority who has an authority for approval
shall finalize his/her actions on the files so received within Thirty days from the date of receipt.

112. Conditions may be laid down: While authorizing pursuant to Sections 108 and 110, the authorizing officer may lay down conditions.

113. Reduction of penalty: The officer who is authorized to approve the penalty imposed by the Court Martial may, subject to the conditions laid down pursuant to Section 112, reduce the penalty imposed by the Court
Martial or approve a lesser penalty amongst the penalties prescribed in Section 101.

114. Rehearing (Revision) of decision or penalty: (1) The endorsing (approving) officer may give an order to rehear the penalties imposed by the Court Martial.
(2) If an order is issued pursuant to Sub-section (1), the Court Martial may examine additional evidence and proceed with and adjudicate the case.
(3) If it is necessary to rehear a case, it shall be reheard by the same officers who issued the previous decision unless they are unable to be present for inevitable reasons.
(4) If the officer who issued the original decision could not be present, a memorandum indicating the reasons thereto shall be attached to the file and the members equal to the number who fail to be present shall be
added, and the case shall be proceeded.

115. Decision or penalty of Summary Court Martial: (1) The decision or penalty of the Summary Court Martial shall not be approved and it shall be executed immediately.
(2) Notwithstanding anything contained in Sub-section (1), if the case is proceeded by an officer who has served less than Five years, the penalty shall not be executed, except during a military operation, unless approved by the Brigadier (Bahinipati) or officer senior to the Brigadier is received.
(3) The decision made or penalty imposed by the Summary Court Martial shall be submitted to the head of Brigade (Bahinipati) or Division (Pritanapti) or the officer authorized by the Chief of the Army Staff, and
such officer shall examine the reality of the case and may nullify or reduce the conviction or penalty.

116. Alteration of decision or penalties: (1) If a penalty of a Court Martial which is approved or a decision or penalty which does not require approval, is not supported by evidence or cannot be recognized for any reason, and
the officer who is empowered to reduce penalty pursuant to Section 113 issues a new decision or penalty, the same penalty shall be executed.
Provided that, no new decision or penalty shall be issued or imposed except in the case if the Court Martial questions the jurisdiction in respect
to such decision or penalty, or the Court Martial is not satisfied with reasons given in such decision or penalty.
(2) Except if a new decision or penalty is issued pursuant to Sub- section (1), if the penalty issued by the Court Martial which is approved or does not require any approval is not recognized for any reason, the officer
prescribed in Sub-section (1) may, subject to the provisions referred to in the same Sub-section, issue a new penalty as he/she deems reasonable.
(3) The penalty which is imposed pursuant to Sub-sections (1) or (2) shall not exceed the penalty imposed by the Court Martial.
(4) The alteration or imposition of a penalty pursuant to this Section shall take effect as if imposed by a Court Martial.

117. Non-recognition of decision or approval: The decision or penalty issued by the Court Martial except by the Summary Court Martial shall not be recognized unless it is approved.

118. Reviewing order of departmental action: If the order of departmental action is deemed illegal or unjust or excessive, the following officers may review such order and nullify or alter or reduce such penalties.
(a) Any senior commanding officer in respect to the penalties ordered by the commanding officer,
(b) The Government of Nepal, Chief of Army Staff or other officer as assigned by the Chief of Army Staff in the case of a penalty imposed by any other officer.

119. Appeal against the decision or order of Court Martial: (1) There
shall be an Army Special Court Martial which shall hear appeal against a
decision or final order rendered by a General Court Martial and Summary
General Court Martial pursuant to Clause (a) of Section 68.
(a) Judge of an Appellate Court
nominated by Government of Nepal
on the recommendation of the
Judicial Council Chairperson
(b) Secretary of Ministry of Defence Member
(c) Chief of Prad Viwak Member
(2) The party aggrieved by the decision or final order rendered by a
General Court Martial and Summary General Court Martial pursuant to
Clause (a) of Section 68 may file an appeal before the Special Court Martial
as referred to in Sub-section (1) within Thirty Five days of the date of such
decision or final order.
(3) The Court established pursuant to Sub-section (1) shall have an
original jurisdiction to proceed with and adjudicate the case as referred to in
Section 62.
(4) An appeal may be filed before the Supreme Court against a
decision made pursuant to Sub-section (3) within Thirty Five days of the
decision.
(5) The procedures applicable to the original jurisdiction and
appellate jurisdiction shall be as prescribed.
(6) The party aggrieved by a decision or final order of the Court
Martial regarding offences as referred to in Clauses (b) and (c) of Section
68 may file an appeal before the Chief of Army Staff through the Judge
Advocate General Department (Prad Viwak) within Thirty Five days of the
date of decision or final order.
(7) There shall be an Appeal Hearing Committee which shall
proceed with and adjudicate the cases filed pursuant to Sub-section (6):
(a) Brigadier General (Sahayk Rathi)
nominated by the Chief of Army
Staff Chairperson
(b) Colonel (Mahasenani) nominated
by the Chief of Army Staff Member
(c) Representative of Prad Viwak
who was not involved in the Court
Martial of the concerned case Member
(8) The procedures applicable during the proceedings and
adjudication of an appeal to the Committee as referred to in Sub-section (7)
shall be as prescribed.

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