Army Act Section 106: Inquiry into Absence Without Leave, 30-Day Court of Inquiry, Desertion Presumption, Deficiency & Trial Consequences

The official Army Act is available through India Code. The inquiry should be distinguished from a Rule 180 Court of Inquiry into conduct and from a later court-martial for absence or desertion.

1. Trigger: thirty days’ absence without due authority

The statutory mechanism is triggered when a person subject to the Army Act has been absent from duty without due authority for thirty days. The exact date and time from which absence is calculated should be supported by unit records, leave documents and movement/attendance registers.

2. Court of Inquiry requirement

A Court of Inquiry is assembled in the prescribed manner to inquire into the absence. The Court investigates the fact and period of absence and records the material required by the section.

3. Property deficiency

The inquiry also records deficiency, if any, in arms, ammunition, equipment, instruments, clothing or other Government property entrusted to the absent person. This can later affect separate property, recovery or disciplinary allegations.

4. Declaration and evidentiary consequence

The Court’s declaration regarding absence and deficiency is made in the prescribed manner and can become admissible evidence under the statutory framework. The defence should obtain the original declaration and the evidence on which it rests.

5. Consequence where person does not surrender or is not apprehended

If the absent person does not later surrender or is not apprehended, the statutory declaration can operate for the purposes contemplated by the Army Act in relation to desertion. The exact legal consequence should be read from the current text and applied carefully to the facts.

6. Absence without leave versus desertion

Army Act Section 39 addresses absence without leave, while Section 38 addresses desertion and aiding desertion. Desertion involves a more serious mental element. Long absence can be evidence, but duration alone should not automatically substitute for proof of the ingredients of desertion.

7. Intention matters in desertion

Defence analysis should examine whether the person intended to remain away permanently or to shirk an important service, or whether the absence arose from illness, family emergency, transport failure, detention, confusion over leave, mental-health circumstances or other facts inconsistent with desertion.

8. Leave application and extension records

Many cases turn on disputed leave extension. Obtain the original leave certificate, applications for extension, medical documents, messages, emails, WhatsApp/telephone records where lawfully available, and unit acknowledgments.

9. Medical absence

Where illness is relied upon, the defence should collect contemporaneous medical prescriptions, admission/discharge records, diagnostic reports and proof that the unit was informed. Retrospective certificates without supporting treatment records are often less persuasive.

10. Civil detention or custody

If the person was in police, judicial or other lawful custody, absence may not have the same character as voluntary unauthorised absence. Obtain arrest memo, remand order, release order and proof of communication to the unit.

11. Surrender and apprehension

The date, place and circumstances of surrender or apprehension are crucial. A voluntary return may bear on intention and sentence even where an absence offence is established.

12. Section 106 and presumption of desertion

The statutory declaration can have evidentiary force, but the defence should still test whether the Court of Inquiry was validly convened, whether the thirty-day trigger existed, whether the identity and period are correct and whether later surrender/apprehension changes the statutory position.

13. Rule 180 rights

Where the Court of Inquiry goes beyond establishing absence and directly examines conduct or reputation of a person who is available and affected, counsel should consider whether Army Rule 180 safeguards were attracted. The particular composition and purpose of the inquiry matter.

14. Deficiency and recovery issues

A recorded deficiency does not automatically prove theft, misappropriation or culpable loss. The prosecution must still prove the elements of any property offence or recovery claim. Stores ledgers, handover/takeover documents and custody records should be obtained.

15. Subsequent hearing of charge

After return or apprehension, disciplinary processing normally requires the applicable hearing-of-charge and evidentiary steps. Section 106 does not replace the entire pre-trial procedure.

16. Summary of Evidence

The Summary of Evidence should test the actual absence, authority status, communications, surrender/apprehension and intention where desertion is alleged. Defence witnesses and documentary evidence should be identified early.

17. Section 122 limitation and desertion

The ordinary three-year limitation under Section 122 does not apply to desertion in the same way as ordinary offences, but Section 122(4) creates a separate protection in certain cases where a non-officer has subsequently served continuously in an exemplary manner for not less than three years. The exact conditions should be checked.

18. Punishment and service consequences

AWL or desertion findings can affect pay, qualifying service, pension, promotion, character and retention. Separate orders such as dies-non or pay deductions should be traced to their own legal authority.

19. Common defence grounds

• absence was authorised or extension reasonably believed to be granted;
• wrong date/period calculated;
• Section 106 inquiry convened before statutory trigger;
• person was in hospital or lawful custody;
• unit had notice of circumstances;
• desertion intent not proved;
• surrender was voluntary and inconsistent with permanent abandonment;
• property deficiency wrongly attributed;
• later trial procedure defective.

20. Documents to obtain

1. leave certificate and extension requests;
2. attendance/roll-call records;
3. Section 106 Court of Inquiry convening order;
4. witness statements and declaration;
5. property deficiency statement;
6. communications with unit;
7. medical or custody records;
8. surrender/apprehension report;
9. hearing-of-charge and Summary of Evidence proceedings;
10. charge-sheet and court-martial proceedings.

21. AFT remedy

Following disciplinary or administrative action, the AFT can examine service-law and court-martial issues within its jurisdiction. The strongest challenge is chronological: authorised leave, communications, thirty-day trigger, inquiry, surrender/apprehension, charge, evidence and final order.

22. Frequently asked questions

Does thirty days’ absence automatically mean desertion?

No. Section 106 creates an inquiry mechanism; desertion remains a distinct offence requiring its legal ingredients.

Can medical illness explain absence?

Potentially yes, depending on contemporaneous evidence and communication with the unit.

Does Section 106 replace Rule 22/23 procedure?

No. The later disciplinary process must still comply with the applicable Army Rules.

Can property deficiency be recovered automatically?

Any recovery or property charge should have an independent legal and evidentiary basis.

23. Conclusion

Section 106 is the statutory bridge between prolonged unauthorised absence and possible desertion proceedings. A defence should resist treating the thirty-day declaration as the end of the case. The real questions are whether the absence was unauthorised, whether the inquiry record is accurate, what happened during the absence, whether desertion intent can be proved, and whether the subsequent disciplinary process complied with the Army Act and Rules.