Army Act Section 122: Three-Year Limitation for Court-Martial, Knowledge of Offence, Identity of Offender, Exceptions & AFT Challenge

Official text is available on India Code. The limitation objection should be coordinated with the broader Section 164 and AFT remedy strategy.

1. The basic three-year rule

Except for the cases specified in Section 122(2), no trial by court-martial may commence after expiry of three years. The phrase “trial commenced” is important because preliminary investigation, Court of Inquiry, hearing of charge and Summary of Evidence are not necessarily the same legal event as commencement of the court-martial trial.

2. Date of offence as the normal starting point

Where the offence and offender are known, the ordinary starting point is the date of the offence. In a continuing or multi-date allegation, counsel should test whether the charge actually alleges one completed offence, several offences or a continuing course of conduct.

3. When commission of offence was not known

Section 122 allows limitation to run from the first day on which the commission of the offence comes to the knowledge of the person aggrieved or the authority competent to initiate action, whichever is earlier. This “whichever is earlier” language is frequently decisive.

The department cannot necessarily postpone limitation by relying on the date a higher headquarters formally received the case if a legally relevant competent authority or aggrieved person knew of the offence earlier.

4. When identity of offender was not known

If the offence was known but the offender’s identity was not, the starting point shifts to the first day on which the offender’s identity becomes known to the person aggrieved or competent authority, whichever is earlier.

Documents from preliminary inquiry, audit, technical investigation, complaint records and correspondence can become critical evidence of actual knowledge.

5. Who is the “authority competent to initiate action”?

This question is fact-sensitive. Counsel should identify the chain of command and the authority legally competent to initiate the relevant disciplinary process. Knowledge of an unrelated functionary may not necessarily satisfy the statute, while knowledge of the proper initiating authority can start time running even if formal charges are framed later.

6. Exceptions under Section 122(2)

The three-year bar does not apply to trial for desertion, fraudulent enrolment or offences mentioned in Section 37 of the Army Act. These exceptions must be read strictly. A charge should not be artificially characterised as an excepted offence simply to avoid limitation.

7. Excluded periods under Section 122(3)

Time spent by the person as a prisoner of war, in enemy territory or evading arrest after commission of the offence is excluded from computation. The authority relying on an exclusion should be able to prove the dates and factual basis.

8. Special rule for desertion and fraudulent enrolment after exemplary service

Section 122(4) protects a person other than an officer in specified desertion or fraudulent-enrolment cases where, after commission of the offence, he has served continuously in an exemplary manner for not less than three years with any portion of the regular Army, subject to the statutory conditions concerning desertion on active service.

9. Section 122 and delayed Court of Inquiry

A late Court of Inquiry does not automatically create a fresh limitation period. The relevant issue is when the offence and offender became known within the statutory framework. If contemporaneous records show earlier knowledge, a later inquiry may not rescue an otherwise time-barred trial.

10. Section 122 and Summary of Evidence

Recording a Summary of Evidence within three years does not by itself answer whether the court-martial trial commenced in time. Counsel should record the date of actual arraignment or other legally recognised commencement of trial and compare it with the Section 122 deadline.

11. Amended charges and limitation

If charges are materially altered after the limitation period, examine whether the amendment merely clarifies the same offence or introduces a new factual transaction/offence. A late reframing cannot be assumed valid merely because an earlier preliminary charge existed.

12. Civil offences under Section 69

For a Section 69 civil-offence charge, Army Act limitation must be examined independently of limitation concepts under ordinary criminal law. The article on Army Act Section 69 after the BNS explains the jurisdictional overlay.

13. How to prove the knowledge date

• complaint or incident report;
• unit diary or signal;
• technical/audit report;
• initial Court of Inquiry order;
• correspondence identifying suspected offender;
• military police or civil police report;
• letters from the aggrieved person;
• minutes showing decision to initiate disciplinary action.

14. Limitation objection during trial

The objection should be raised at the earliest legally appropriate stage and preserved in writing. The defence should state the proposed limitation calculation, documents establishing knowledge and the precise statutory consequence sought.

15. Pre-confirmation and post-confirmation use

If the objection is rejected and trial proceeds, Section 122 should be preserved in the court-martial record and repeated, where appropriate, in the Section 164 pre-confirmation and post-confirmation petitions. A later AFT appeal should reproduce the chronology accurately.

16. AFT judicial review/appeal

Section 122 is a jurisdictional limitation provision. The AFT can examine whether the trial was commenced after the statutory period and whether the authority relied on an incorrect knowledge date or unsupported exclusion.

17. Common departmental arguments to test

• “the offence was discovered only after the Court of Inquiry”;
• “the competent authority learned later than the unit”;
• “the offender’s identity was not certain until technical analysis”;
• “the accused was evading arrest”;
• “the offence falls within the desertion/fraudulent-enrolment/mutiny exception”.

Each proposition should be tested against contemporaneous documents rather than accepted at face value.

18. Documents to obtain

1. charge-sheet and amended charge-sheets;
2. incident/complaint report;
3. Court of Inquiry convening order and dates;
4. Summary of Evidence dates;
5. documents showing first knowledge of offence;
6. documents showing first identification of offender;
7. arrest/absence records if exclusion is claimed;
8. convening order and date trial commenced;
9. ruling on limitation objection;
10. Section 164 decisions.

19. Frequently asked questions

Is the limitation always three years from the offence?

No. The statute contains knowledge-based triggers where the offence or offender was not known.

Does a Court of Inquiry stop limitation?

Not merely because it is convened. The statutory computation depends on Section 122 and the relevant facts of knowledge and any express exclusion.

Does Section 122 apply to desertion?

The ordinary three-year bar in subsection (1) does not apply to desertion, but subsection (4) contains a separate protection in specified cases after exemplary service.

Can an AFT set aside a conviction on limitation?

Yes, where the court-martial was legally time-barred and the statutory conditions are established.

20. Conclusion

Army Act Section 122 is one of the most important threshold checks in any delayed disciplinary case. The defence should build a date matrix before engaging with the merits. When the first knowledge documents, offender-identification records and actual court-martial commencement date are placed side by side, the limitation issue often becomes much clearer than it appears from the charge-sheet alone.