CHAPTER V

OF OFFENCES

Any person who is subject to this Act, whenever he commits any offence under
this Act shall be liable to be taken action according to the provisions of Military Law.
They are therefore subject to the jurisdiction of Courts-Martial.
Not only that they have to comply with the provisions of this Act, but also the
provisions of other existing laws of the Union of Myanmar should also be complied.
There are in fact different kinds of offences under this law such as: -
- Offences relating to enemies
- Offences relating to character
- Offences relating to conduct
- Offences relating to property
- Offences relating to aircrafts
- Offences relating to ships
- Offences relating to discipline
- Miscellaneous offences
- Civil Offences

5. 1 Offences in relation to the enemy and punishable with death

Section 32 of the Act includes altogether 16 clauses relating to offences in relation
to the enemy and punishable with death.
Hence section 32 (a) provides that any person subject to this a Act, who
shamefully abandonees, or delivers up any garrison, fortress, post, place, ship or guard,
committed to his charge, or which it is his duty to defend, or uses any means to compel or
induce any commanding officer or any other person to commit any of the said acts shall
on conviction by Court-martial be liable to suffer death or such less punishment as is in
this Act mentioned.
 In the above provision, the term "shamefully abandons" or "delivers' only refers to
such officer who is in command of a garrison or fortress and dies no refer to those who
are inferior to him.
But such officer shall not be liable although he has delivered or shamefully
abandonee form any garrison or fortress or post or place, ship or guard which has been in
his charge under the following conditions.
(1) Done under the order of the superior authority,
(2) Because of the shorting of water or food,
(3) No hope of getting assistance of other troops,
(4) Although with due diligence, defend against the enemy with all the
ammunitions and utmost effort, but arrives to the state of helplessness.
Thus, in the absence of the above mentioned conditions the officer in charge of
such places shall be presumed to commit such and offences and on conviction be liable to
suffer death penalty or less punishment as provided under section 73 of the Act.
So whenever a person subject to this Act has been tried under clause (a) of section
32, the fact that such abandonment or delivery has been done shamefully according to the
Military concept must be proved conclusively.
The way an action has been taken in respect of this provision can be studied form
the decision of Summary General Court-Martial in the year 1972.1
Facts of the case are as follows: -
On the 24th April 1972, an assisting detachment of alight infantry from Lashio,
moved from Nanan village towards Pantee village to fight against Lweinmaw insurgents.
On the way to the frontier, the accused together with another two assistant non-
commissioned officers had been order to stay behind at a hill, while the rest of the
detachment went forward into the panted village. One hour after engaging with the
insurgents, the commanding officer found out that the accused was missing. He was
found only at the Momgthaw camp. When inquired, he told the authorities that because
1
No. 34/72 of Summary General Court—Martial (Eastern Command) in the case of Summary General Court –
Martial (Estern Command ) 5th Sept: 1972
he was worried that the insurgents would attack at the place where he was posted, he ran
away and on the way when he faced with the insurgents he gave away all his arms and
ammunition to the insurgents.
After considering the above facts the Court held that, the taking of action on the
accused under section 32 (a) is importer because he is just an ordinary military personnel
a soldiers, below the rank of non-commissioned officer and he should commits under
section 32 (h) where he commits leaving his Commanding officer or his post, without
being regularly relieved or without leave.
The highest punishment under section 32 will amount to Capital punishment,
which is a death sentence. But the Court considers his position where of the time of the
operation he was just ordered to assist in the action and therefore been removed form the
army and sentenced to 6 months rigorous imprisonment to be served in the civil prison.

Section 32(b)
Any person who is subject to this act, intentionally uses any means to compel or
induce any person subject to military law to abstain form acting against the enemy or to
discourages such person from acting against the enemy, shall on conviction by Court-
Martial, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 32(c)
Any person subject to this Act, in the presence of the enemy, shamefully casts
away his arms, ammunition, tools, or equipment or misbehaves in such manner as to
show cowardice, shall on conviction by Court-Martial, be liable to suffer death or such
less punishment as is in this Act mentioned.
To consider whether the accused casts away his arms, ammunition tolls or
equipment ' in the presence of the enemy' does not depend on the place of distance from
the enemy. It is only to be considered whether it has been done during the course of
operation.
 Again, the word " misbehaves in such manner as to show cowardice" means when
a soldier for the sake of his own personal safely, breaches his duty to follow a special
order or any regulation which could be done by him without any difficulty and also that
of the work, which according to the nature or custom in such a place and circumstances
should be necessarily followed intensively.
Hence for any kind of behavior which does not amount to show cowardice in the
presence of the enemy should not be taken action under this section.
A case decided in the year 1965, by the Court-Martial Appeal Court should be
studied well, because in that case the appellants were charged upon the previsions of
sections 32(b), 32 (c) and 32(d) and 32(e) of the Act.
The facts of the case are as follows:
A sentence of 7 years rigorous imprisonment against eact of the three accused,
15291 R fn. (L/C) Dein Yin Tan, 30089 R fn. En Daung Naw and 22018 Rfn. hal La Di,2
was passed in Summary General Court-Martial No. 16 of 1964 (Na Ma Kha ) presided
over by Major Ne Lin after the three accused had been found guilty under section 32(b),
32(d) and 32(e) of the Defence Services Act, 1959. Each of them was also dismissed
from the Service Col. Lun Tin, Commander of North-West Command, Confirmed the
findings and sentences on 5th January 1965, but when the three accused presented their
petitions under section 168(2) of the Defence Services Act, Rfn. En, Daung Naw had his
sentence reduced by 2 years. In other respects the petitions were rejected .Hence this
appeal cam up to the C.M.A.C.
The three accused were among the 12 persons selected for re-
employment after they has been retired form the Brigade stationed at Putao, and since
1963, they has been given back the some posts and stationed as Shidi Camp, about 3
miles away from the Re-Settlement Unit. But in January-February of 1964, 5 out of 12
riflemen went under – ground. The three accused were those riflemen left behind.

2
Dein Yin Tan and Two (Appelants) V. The Union of Myanmar (Respondent )Criminal Appeal No. 14 of
1965.1965 . B.L.R (C.M.A.C) 33.
 The most important fact was that the three accused took the money, uniforms and
ammunition personally to deliver them to the insurgents.
In this appeal the three accused pleaded that they acted under compulsion of being
put to death if they did not give what was demanded of them. The accused there for
prayed for leniency.
Section 94 of the Penal Code relating to death done under compulsion requires
that at the time of the act, the person compelled must be under apprehension of instant
death. This Section however is not a defines in cases of murder and offences against the
State punishable with death as the three accused has ample time and opportunity to report
to the Commanding Officer of the Unit as suggested by Rfn, Watakonpon and Ah Di, or
flee from the camp before the next visit of the insurgents. They could have thus shown
their loyalty to the State and the Armed Force they were serving.
The Court there for confirmed the convictions and sentences on all charges passed
upon the accused, together with their dismissal from the service and dismissed their
appeals.

Section 32(d)
A person subject to this Act, treacherously holds correspondence with, or
communicates intelligence to the enemy or any person in arms against the Union of
Myanmar shall, on conviction by Court-Martial, be liable to suffer death, or such less
punishment as is an this Act mentioned.
The word ' treacherously' means when ever there is the intention to assist or help
the enemy or any person in arms against the State. "Intention" is very important and
therefore it must be proved clearly.
Section 32(e)
Provides that whenever a person subject to this Act, directly or indirectly assists
the enemy with money, arms, ammunition stores or supplies shall in conviction by Court-
Martial be liable to suffer death, or such less punishment as is in this Act mentioned.
The word " Supplies", means any blockade of water supply enforced by his unit, to
enemies to which he lift if up will amount to assist the enemies.

Section 32(f)
Provides that any person subject to this Act treacherously or through cowardice
sends a flag or truce to the enemy, shall, on conviction by Court-Martial be punishment
as is in this Act mentioned.
Section 32(g)
Provides that any person subject to this Act if in time of war or during any military
operation intentionally occasions false alarm in action, camp, garrison, quarters, unit,
place or ship or spreads reports calculated to create alarm or despondency shall on
conviction be liable to suffer death or such less punishment as is in this Act mentioned.
With regard to the word "Spreads reports" it must be proved specially the way the offence
is committed, especially the fact that how such reports have been spread, so that it
amounts to create alarm or despondency. There is no need to prove that the reports are
false.
But in case, of reports are true, there is no need to prove that there has been alarm
or despondency.

Section 32(h)
provides that in time of action leaves his commanding officer or his post, guard,
piquet, patrol or party without being regularly relieved or without leave, shall on
conviction by Court-Martial, be liable to suffer death or such less punishment as is on this
Act mentioned.
 With regard to the word "leaves", when a person is asleep near the post in time of
action, he should be taken action under this provision. It should therefore be noted that he
should not be taken action under the provision of Section 32(k), for the offence of being
committed during on water on a ship or a sentry on time of war or alarm sleeps upon his
post or is intoxicated.
The words ' without regularly relieved" or without leave" should be studied
together with the provision laid down in section 105 of the Evidence Act. Thus, whenever
a person subject to this Act is taken action under section 32(h) although the facts as to '
Leaving the post or his commanding officer " without regularly relieved" or " without
leave" must be contained in the charge, evidence as to those matters shall not be
necessary to prove.
It is also to be noted that, the meaning of the word " the place of post or guard
etc", includes the specific place where the officer or non-commissioned officer has given
the order to a guard or sentry to keep an eye always on alert and includes its near about
place.
Another point to consider is that, if the accused is charge under this section, and
there is a clear evidence that he committed an offence under this Act at that particular
place where his is on duty to guard, then it is not necessary to prove that he is not given
proper order.
But, if the accused is charged for leaving his post or guard improperly of without
leave, then the fact that he has given a proper order to guard or post must be proved
specifically.
In the case of a soldier, form a regiment, who was taking up a duty on the 26th of
Feb: 1972 security of the bridge in Dhamahti Camp, when attacked by the (B.C.P)
insurgents had ran away form the bridge without retreating, leaving behind the arms and
ammunition which were burned down by the fire. Infact he was hiding in inastream near
the post where he was on duty. In that event, the two non-commissioned officers Maung
Bo and another soldier, Maung Thein Lwin who were left behind in the bunker wee killed
during the operation.
 The case was sent up to the Summary General Court-Martial (Northern
Command) where the Court held the accused to be guilty of an offence punishable under
section 32(h) of the Act, and thus sentenced him to 5 years rigorous imprisonment. But
the Confirming Authority of the Northern Command had reduced commuted the sentence
to 3 years rigorous imprisonment after considering the inexperience of the solder in an
action and his short service in the army.

Section 32(i)
Provides that having been made a prisoner of war, or while being a prison in the
hands of the enemy, voluntarily services with or aids the enemy, shall on conviction by
Court-Martial, be liable to suffer death or such less punishment as is in this Act
mentioned.
In the above provision the word "Voluntarily" means " when a person causes an
effect, whereby he intended to cause it , or by means, which at the time of employing
those means, he know or had reason to believe to be likely to cause it. For example-
"A sets fire, by night, to an inhabited house in a large town, for the purpose of
facilitating robbery and thus causes the death of a person. Here, A may not have intended
causes death, and may even be sorry that death has been caused by his act; yet, it he knew
that he was likely to cause death, he has caused death voluntarily".
We can therefore see that the meaning of the world 'Voluntarily' used in section
32(i) of the Defence Services Act is to be taken as the same meaning given in section 39
of the Penal Code .
If the accused had to serve or aid the enemy under compulsion, such evidence will
be vital foe defence. Hence, if there is no such evidence, the Court will presume that the
accused had committed the offence voluntarily. After considering all the facts of the case
and evidence. The Court can acquit the accused, if it appears to the Court that under
such circumstances the accused was over threatened by the fright. But in giving such an
acquittal, the Court should consider the ways the accused was treated by the enemy, so
that an ordinary brave person could not resist in committing such an offence.
Section 32(j)
Provides that when ever a person subject to thus Act, knowingly harbors or
protects an enemy not being a prisoner, shall on conviction by Court-martial, be liable to
suffer death or such less as is in this Act mentioned.
To charge the accused of knowingly harboring or protecting the enemy, not being
a prisoner needs a sufficient proof to show that such a person is an enemy. Furthermore
the Fact that the accused has such acknowledge depends on circumstantial facts.
With regard to the term "Harbor", it shall be taken just as the same as defined in
section 52(a) of the Penal Code, where it provides as follows:-
"Except in sections 130 and 157 in the case in which the harbor is given by the
wife or husband of the person harbored the word "harbor" includes supplying a person
with shelter, foot, drink, money, clothes, arms, ammunition or means of conveyance, or
the assisting of a person by any means whether of the same kind as those enumerated in
this section or not, to evade apprehension.

Section 32(k)
Provides that "being on watch on a ship or a sentry in time of war or alarm, sleeps
upon his post or is intoxicated, shall on conviction by Court- Martial be liable to suffer
death or such less punishment as is in this Act mentioned ".
According to this provision, the word " is intoxicated" includes not only of taking
up alcohol, but also taking up any drug whether a lone or in combination with any other
circumstances.

Section 32(l)
Provides that "knowingly does any act calculated to imperil the success of the
forces of the Defence Services of any forces co-operating therewith or any part of such
forces, shall on conviction by Court-Martial be liable to suffer death or such less
punishment as is in this Act mentioned."
Section 32 (m)
Provides that "treacherously uses any false air single or alters or interferes with
any air signal shall on conviction by Court-martial be liable to suffer death or such less
punishment as is in this Act mentioned".

Section 32 (n)
Provides that 'when ordered by his superior officer or otherwise under orders to
carry out any military operations treacherously or shamefully fails to use his utmost
exertions to carry such orders into effect, shall on conviction by Court-Martial be liable
to suffer death or such less punishment as is in this Act mentioned".

Section 32 (o)
Provides that " in time of action, does not afford all practicable relief and
assistance to any troops, combatants, ship or aircraft of the Defense Services or any
forces cooperating there –with, shall on conviction by Court-Martial be liable to suffer
death or such less punishment as is in this Act mentioned.
Section 32 (p)
Provides that" treacherously or shamefully causes the capture or destruction by the
enemy of any aircraft, ship, tank, gun or any other military property belonging to the
Defence Services, shall on conviction by Court-Martial, be liable to suffer death or any
less punishment as is in this Act mentioned."

5. 2 Offence of being a spy for the enemy and Punishable with death
Section 33 of the Act provides as follows:-
"Any spy for the enemy shall be deemed to be a person subject to this Act, and
shall, on conviction by Court-Martial, be liable to suffer death, or transportation, or
imprisonment, and shall also be liable to fine".
 According to this prevision, any civilian who is not this Act of he is a spy.
Section 3(n) of the Act defines "enemy" as follows:-
"enemy" includes all armed mutineers, armed rebels, armed rioteers, pirates and
any person in arms against whom it is the duty of a person subject to military Law to act.
Hence, a countryman who in general does not subject to this Act, communicates
intelligence to the enemy or holds correspondence with the enemy, shall be deemed to be
a person subject to this Act and shall on conviction by Court-Martial be liable to suffer
death or transportation or imprisonment and shall also be liable to fine.

5.3 Offences in relation to the enemy and not punishable with death
The Act provides such offences which are not punishable with death although they
relate to the enemy.
They are laid down in Section 34 of the Act, and there are altogether five in
number.
Thus section 34(a) provides that: any person subject to this Act when he is taken
prisoner, by want of due precaution, or through disobedience of order or willful neglect
of duty or having been taken prisoner fails to rejoin the Defence Services when able to do
so shall on conviction by Court-martial, be liable to suffer imprisonment for a term which
may extend to fourteen years or such less punishment as is in this Act mentioned.
Section 34(b) further provides that: without due authority holds correspondence
with or communicates intelligence to the enemy or having come by the knowledge of any
such correspondence of communication, wilfully or negligently omits to discover it
immediately to his commanding or other superior officer, shall on conviction by Court-
martial, be liable to suffer imprisonment for a term which may extend to fourteen years or
such less punishment as it in this Act mentioned.
It should be noted that the provision laid down in section 32(d) can be
differentiated with the provision of this section.
The position of the accused who committed the offence under section 32(d) is the
one who treacherously holds correspondence with or communicates intelligence to the
enemy; but the offender under section 34(b) is the one who although not treacherously
but without due authority holds correspondence with or communicates intelligence to the
enemy. Therefore the convictions laid upon them are quite different form each other if
committed treacherously the highest conviction will be the death penalty, but if
committed not treacherously but without due authority the highest conviction will be only
up to fourteen years.
According to this section, the word "Communication" means and includes letters,
drawings or sketches or photographs being captured by the enemy or by being
republication or receiving information impliedly by the enemy.
In the case of a non-commissioned officer, when on duty at garrison in Thaten, has
sent a letter, gumboots and bags to a member of the K.N.D.O insurgents.
He committed the offence, not treacherously but only without due authority.
Hence the Summary General Court-Martial on conviction sentenced him to be dismissed
form the service and to serve a one year term of rigorous imprisonment. The Court in
deciding the case has considered his dutiful service for a period of 14 years and also
considered the fact of being committed the offence during taking up duties given by the
Lanzin Party.
Section 34(c) further provides that any person subject to this Act who without due
authority sends a flag of truce to the enemy shall on conviction by Court-Martial, be
liable to suffer imprisonment for a term which may extend to fourteen years or such less
punishment as in this Act mentioned.
Section 34 (d) also provides that any person who is subject to this Act who
negligently causes the capture or destruction by the enemy of any aircraft, ship, tank, gun
or any other military property belonging to the Defence Services shall on conviction by
Court-Martial, be liable to suffer imprisonment for a term which may extend to fourteen
years or such less punishment as is in this Act mentioned.
Finally, section 34 (e) provides that any person who is subject to this Act when
ordered by his superior officer or otherwise under orders to carry out any military
operations, negligently or through other default fails to use his utmost exertions to carry
such into effect, shall on conviction by Court-Martial, be liable to suffer imprisonment
for a term which may extend to fourteen years or such less punishment as is in this Act
mentioned.

Miscellaneous offences
shamefully abandon
garrison
fortress
compel
post
guard
induce
inferior
troops
ammunitions
helplessness
infantry
insurgents
relieved
Capital punishment
rigorous imprisonment
abstain
discourages
casts away
his arms
misbehaves
cowardice
intensively
presided
Brigade
compulsion
leniency
apprehension
treacherously
Supplies
false alarm
despondency
piquet
sentry on time of war
intoxicated
alert
specifically
regiment
inhabited
robbery
foe
acquit
harbors
conveyance
evade
being on watch
imperil
exertions
combatants
afford
mutineers
armed rebels
rioteers
republication
gumboots
flag of truce
capture
destruction

5.4 Offences punishable more severely on active service than at other times
Section 35 of the Act provides (8) different kinds of offences, where by the
offender will have severe punishment if he has committed on active than at other times.
Thus, section 35(a) provides that when any person subject to this Act forces a
safeguard, or forces or uses criminal force to a sentry, shall on conviction by Court-
Martial:-
- if he commits such an offence when on active service, be liable to suffer
imprisonment for a term which may extend to fourteen years or such less punishment
as is in this Act mentioned.
- if he commits such an offence, when not on active service be liable to suffer
imprisonment for a term which may extend to seven years or such less punishments as is
in this Act mentioned.
Again the provision of this section must be read together with section 350
of the Penal Code. The word "Criminal force" has the same meaning on both
Laws respectively.
Where by, it means:-
"whoever intentionally uses force to any person, without that persons' consent, in
order to the committing of any offence, or intending by the use of such force to cause, or
knowing it to be likely that by the use of such force, he will cause injury, fear or
annoyance to the person to whom the force is used, is said to use criminal force to that
other."
For example; 'A' incites a dog to spring upon 'B', which is without B's consent.
Here if A indends to cause injury or fear or annoyance to B, he uses criminal force.
 Section 35(b) also provides that any person who is subject to this Act, breaks into
any house or other place in search of plunder, shall on conviction by Court-Martial, be
liable to suffer up to (14) years imprisonment or less punishment as it in this Act
mentioned, only if such offence being committed during Active-Service. But if he
committed that offence not on Active Service, be liable to suffer up to seven years or less
punishment as is in this Act mentioned.
A person is said to commit "house-breaking " who commits house-trespass if he
effects his entrance into the house or any part of it in any of the six ways mentioned in
section 445 of the Penal Code.
It should also be noted that any out-house or building occupied with a house and
between which and such house there is an immediate internal communication, is part of
the house within the meaning of section 449 of the Penal Code.
For example:-
(1) A finds the key of B's house door, which A has lost, and commits house-
trespass by entering A's house, having opened the door with that key. This is
house-breaking.
(2) A is standing in his doorway. B forces a passage by knocking A down, and
commits house trespass by entering the house. This is house – breaking.
Section 35 (c) again provides that any person who is subject to this Act, who
being on watch on a slip or a sentry sleeps upon his post, or is intoxicated shall on
conviction by Court-Martial be liable to suffer imprisonment for a term which may
extend to fourteen years or such less punishment as is in this Act mentioned. But, that
such an offence is committed not on Active service he will be liable to suffer up to seven
years or such less punishment as is in this Act mentioned.
The provision laid down in section 32(k) can here be taken into account.
According to that section, any person subject to this Act, being on watch on a ship or a
sentry in time of war or alarm sleeps upon his post or is intoxicated shall on conviction
by Court-martial be liable to suffer death or less punishment as is in this Act mentioned.
 It can therefore be noted that for such an act committed on Active Service but on
different occasions will be liable to serve different kind of punishments.
Section 3 (a) of the Act classifies ' Active Service" in to three different occasions:-
(1) when engaged in military operations against an enemy, or
(2) on the line of march to a country or place wholly or partly occupied by
an enemy, or
(3) When serving in a military occupied foreign country.

Hence, whoever, subject to this Act, commits the offence prescribed under section
32(k), which can be said to have committed within the ambit of section 3(a) (i), shall on
conviction by Court-Martial be liable to suffer death or such less punishment as is in this
Act mentioned.
On the other hand, whoever subject to this Act commits the offence provided
under section 35(c) of the Act, which can be said to have committed within the ambit of
section 3(a) (ii) and (iii), shall on conviction by Court-Martial be liable to server the
imprisonment for a term which may extend to fourteen years or such less punishment as
is in this Act mentioned.
Section 35 (d) provides that any person subject to his Act, being on sentry or on
guard, plunders or willfully destroys or injures any property placed under his charge or
under charge of his guard shall on conviction by Court-Martial be liable to suffer
imprisonment for a term which may extend to fourteen years or such as punishment as is
in this Act mentioned.
Section 35 (e) further provides that any person who is subject to this Act, without
orders from his superior officer leaves his guard or picquet, patrol or post shall on
conviction by Court-Martial be liable to serve imprisonment for a term which many
extend to fourteen years or such less punishment as is in this Act mentioned.
Here also for the offence of the same kind if committed under the provision of
section 32(h), will have to suffer severe punishment than that of the one committed under
section 35(e).
 The main reason his on the fact that: the offence under section 32(h) is committed
(in time of war); and that the offence under section 35(e) is committed not in time of war
but on two other occasions as mentioned in section 3(a) (ii) and (iii) .
Section 35 (f) provides that any person who is subject to this Act, causes alarm in
action, camp, garrison, quarter, unit, place, air craft or ship, or spreads reports calculated
to create alarm or despondency, shall on conviction by Court-Martial be liable to suffer
which may extend to fourteen years or such less punishment as is in this Act mentioned.
(2010-Substituted)
This can also be differentiated with the provision of section 32(g) of the Act.
Section 35 (g): provides that any person who is subject to this Act, makes known
the parole, watch word or countersign to any person not entitled, to receive it or
knowingly gives a parole, watch word or countersign different from what he received
shall on conviction by Court-Martial, liable to suffer imprisonment which may extend to
fourteen years or such less punishment as is in this Act mentioned.
Section 35 (h) finally provides that any person who is subject to this ct,
without due authority alters or interferes with any air signal, naval signal shall,
on conviction by Court-Martial, will be liable to suffer imprisonment for a term
which may extend to (14) years of less punishment as is in this Act mentioned if
such offence is committed when on active service and if committed not on
active service he will be liable to suffer imprisonment for a term which may
extend to seven years or such less punishment as is in this Act mentioned.
(2010-Substituted)

5.5 'Mutiny'
Section 36 of the Act provides for those who will be liable for the offence of
'Mutiny'.
 Although the term 'Mutiny ' is not defined in the Act , a clear definition of Mutiny
can be found in the decision of Maung Ohn Shwe V. The Union of Myanmar Case3.
The Court held that: Section 36 of the defence Services Act deals with Mutiny.
This word is not defined in the Penal Code, and the Charge is rarely made. The term '
mutiny' though not defined implies collective insubordination or a combination of two or
more persons to resist or induce others to resist lawful military authority. From the
evidence obtaining in the case, there is nothing to show in what way the accused had
joined in a mutiny. Hence how as acquitted.
4
The decision in the case of Han Taw (soldier) V. The Union of Myanmar in
relation to the term' Mutiny' should also be studied. In this case the accused Han Taw
shot the person in charge of the under guard. It was occurred on the 6th day of December
1965, where the accused shot. Po Khine an assistance man commissioned officer when
on guard during which they were surrounded by the insurgents.
The case was tried by the Summary General Court-Martial, South Eastern
Command in the case of 3/66, and the accused was charged with section 36(b) and was
convicted by the Court to death penalty and to be dismissed from the service on 3 rd
September 1968. This judgment was confirmed by the Defence Services Chief of Staff on
the 19th November 1970. Hence this appeal.
The Court was presided our by three Chief Court Judges:
(1) General Kyaw Htin (2) U Tin Ohn and (3) U Aung Gyi.
The Court pointed out that the accused being on duty during which the guard was
surrounded by the insurgents shot deal his commands and went underground with arms
really amounted to commit the offence of 'mutiny' guilty of the offence.
Being guilty of the offence, the Court confirmed the sentence of death penalty
given by C.M.A.C 3/66 of South East Command.

3
1966 . B. L. R ( C. M. A. C) 8
4
1973 1st Nov B. L. R (C. M. A. C) 12
 Because of the Amnesty Order (Not reation Order No .87) issued by the Chairman
of the Revolutionary Council on 27th June 1971, the accused has been pardoned from
death penalty but was sentenced to life imprisonment.
It was look at the provision laid down in section 36, there are altogether five
different occasions which can be taken inaction.
The provision can be seen as follow:-
"Any person subject to this Act who commits any of the following offences, that is
to say!-
(a) begins, incites, causes or conspires with any other persons to cause mutiny
in the Defence services or any forces co-operating there with; or
(b) joins in any such mutiny, or
(c) beings present at any such mutiny, does not use his utmost endeavors to
suppress the same ; or
(d) knowing or having reason to believe in the existence of any such mutiny or
of any such conspiracy, does not without delay, give information there of
to his commanding or other superior offices; or
(e) endeavors to reduce any person in the Defence services from his duty or
allegiance to the Union; shall on conviction by Court-Martial, be liable to
suffer death or such less punishment as in this Act mentioned.

5. 6 Desertion and Aiding Desertion

As to the provision relating to desertion and aiding desertion See 37 of the Act
provides as follows:-
37(1) Any person subject to this Act, who deserts or attempts to desert the service
shall on conviction by Court-Martial.
if he commits the offence on active service or when under orders for active
service, be liable to suffer death or such less punishments as is in this Act mentioned, and
 if he commits the offence under any other circumstance be liable to suffer
imprisonment for a term which may extend to seven years or such punishment as is in
this Act mentioned.
37(2) Any person subject to this Act who, knowingly harbors any such deserter,
shall on conviction by Court-Martial, be liable to suffer imprisonment for a term which
may extend to seven years or such less punishment as is in this Act mentioned.
37(3) Any person subject to this Act, who being cognizant of any desertion or
attempt at desertion of a person subject to this Act, does not forth with give notice to his
or other superior officer, or take any steps in his power to cause such person to be
apprehended, shall on conviction by Court-Martial, be liable to suffer imprisonment for a
term which may extend to two years or such less punishment as in this Act mentioned.
With regard to the word desertion it is important to note that: the intention of the
accused should be considered well.
It is the absence without leave with the intention not to return to the Unit or that to
disobey the order relating to important military matter.
The fact that the accused ha the intention to commit desertion depends on the facts
of the case. It is therefore a question of fact.
Again, the word' attempt' is to be understood as is defined in section 511 of the
Penal Code.
The word ' harbours ' as is used in section 37(2) will have the section 52(a) of the
Penal Code.
Hence, the word' harbour' will include supplying a person with shelter,
ammunition or means of conveyance.
In the case of Maung Hmat Kyee Vs. The Union of Myanmar 5 the accused Maung
Hmat Kyi was sentenced to death. In that case hw was charged with both the provisions
of section 337(2) of the Defence Services Act as well as that of section 2(1) (a) of the
Arms (Emergency)Temporary Act.

5
1970 (C.M.A. E.) Page 11
 The case was tried by the Summary General Court-Martial of the Central
Command in 44/67 and the Court found the accused guilty of the Arms Act provision and
therefore sentenced to death.
It should be noted that although he was charged with section 37(2) of the Act, the
Court contended that the offence was not committed during Active-Service.
It can therefore be seen the accused was sentenced to death only because he and
others took certain arms and ammunitions and handed them to the insurgents.
He was rightly decided by the Court and therefore the appeal before C.M.A.C was
dismissed.

5.7 Absence without Leave

Whoever being subject to this Act, if he is absent without leave for (2) days will
be liable to be tried by the Court of Inquiry convened under the provision of section 108
of the Defence Services Act.
Although the accused is charged with section 37(1), any Court-Martial may give
decision on him charging with the prevision laid down in section 38. This can be done in
accordance with section 143(1) and (2) of the Defence Services Act.
But, in any case, the accused, if he was charged under section 38, cannot be taken
action under the provision as if he had committed desertion or attempt to desert.
Any person subject to this Act commits any of the following offences, that is to
say,
(a) absent himself without leave; or
(b) without sufficient cause overstays leave granted to him; or
(c) being on leave of absence and having received information from proper
authority that any unit, detachment, ship or department, to which he belongs,
has been ordered on active service, fails, without sufficient cause, to rejoin
without delay; or
(d) without sufficient cause fails to appear at the time fixed at the parade or place
appointed for exercise or duty; or
 (e) when on parade, or on the line of march, without sufficient cause or without
leave form his superior officer , quits the parade or line march; or
(f) when in camp or garrison or elsewhere, is found beyond any limit fixed or in
any place prohibited. By any general, local or other order without a pass or
written leave from his superior officer, or
(g) without leave from his superior officer or without sufficient cause, absents
himself from any school or place of instruction when duly ordered to attend
there, shall, on conviction by court-martial, be liable to suffer imprisonment
for a term which extend to three years or such punishment as is in this Act
mentioned.

5.8 Striking or threatening superior officer

Section 39
Any person subject to this Act who, knowing or having reason to believe a person
to be a superior officer, or uses threatening language to him shall, on conviction by a
court-martial, if such officer is at the time in the execution of his office or, if the offence
is committed on active service be liable to suffer imprisonment for a term which may
extend to fourteen years or such less punishment as is in this Act mentioned, and in other
cases, be liable to punishment for term which may extend to ten years or such less
punishment as is this Act mentioned; and if such person at any time uses insubordinate
language to such officer, he shall, on conviction by a court-martial, be liable to suffer
imprisonment which may extend to five years of such less punishment as in this Act
mentioned.

5.9 Disobedience to superior officer

Section 40
Any person subject to this Act who disobeys in such manner as to show a willful
defiance of authority any lawful command given personally by his superior office in the
execution of his superior office in the execution of his office whether the same is given
orally; or in writing or by singal or otherwise shall, on conviction by court-martial, be
liable to suffer imprisonment for a term which may extend to fourteen years or such less
punishment as is in this Act mentioned.
Any person subject to this Act who disobeys any awful command given by his
superior officer shall, on conviction by court-martial, if he commits such offence when
on active service, be liable to suffer imprisonment for a term which may extend to
fourteen years or such less punishment as is in this .Act mentioned, and if he commits
such offence when not on active service, be liable to suffer imprisonment for a term
which may extend to five years or such less punishment as is this Act mentioned.
In the case of Lt Lain Meng Lain Vs. The Union of Myanmar6, the appellant was
found guilty under section 40 of the Defence Service Act.
The Court pointed out that Military discipline requires that lawful orders given by
a superior officer must be promptly and faithfully carried out. As a soldier bound by the
Defnece Services Act, it was the appellant's plain duty to proceed that might to Na Phaw.
If, in the performance, of his duty, he became physically incapable, it would have been
the superior officer's responsibility to set matters right.
One of the essential ingredients of sub-section (1) of section40 of the Defence
Services Act is that here must be a 'Willful defiance' of authority. These words denote
that there must be an intentional challenge of authority. However, the evidence in the
case does not warrant a conviction under section 40(1); but if would fall under the first
part of section 40(2). The appellant must be deemed to be on active service as defined
under section 3(a) of the Defence Services Act and the punishment that can be meted out
under section 40(1) or the 1st part of section 40(2) is the same. Again in another case of
Lieutenant Ko Ko Aung Vs. The Union of Myanmar 7, the appellant was charged
under section 40 of the Act for disobedience of command of superior officer.
The appellant, an army lieutenant, had been convicted under the section 40(2) for
disobeying the Lawful command of his superior officer while on active service. The
6
1966 B.L.R (C.M.A.C )21
7
1963 B.L.R (C.M.A.C) 1029
General Amnesty Order 1963, was passed during the pendency of the appeal Appellant is
covered by the above order.
The appellant Ko Ko Aung B.C. 7362 of the light Infantry Regiment was
convicted under section 40(2) Summary General B.C 7362 of the109 light Infantry
Regiment was convicted under section 40 (2) Summary General Court-Martial presided
over by Major Ba Tun held at Lashio on the 12th of May, 1962 and sentenced to three
years' rigorous imprisonment in addition to being cashiered.
Actually, the sentence of three years rigorous imprisonment had been remitted by
the Chief of Staff General Ne Win on the 5th January 1963.
Infact, the release under sub-paragraph(1) of paragraph (1) of the General
Amnesty Order had the same effect as a "free pardon".
Hence, the conviction of Lieutenant Ko Ko Aung under section 40(2) of the
Defence Services Act 1959 is quashed.

5.10 Insubordination and obstruction

Section 41
(a) being concerned in any quarrel, affray, or disorder, refuses to obey any officer,
though inferior in rank, who orders him into arrest, or uses criminal force to or
assaults any such officer, or
(b) uses criminal force to , or assaults any person, whether subject to this Act or not,
in whose custody he is lawfully placed, and whether he is or is not his superior
officer or,
(c) resists an escort whose duty it is to apprehend him or to have him in charge; or
(d) breaks out of barracks, camp or quarters; or
(e) neglects to obey any general, local or other order, or
(f) impedes the provost-marshal or any person lawfully action on his behalf, or
when called upon, refuses to assist in the execution of his duty a provost-
marshal or any person lawfully action on his behalf or
(g) uses criminal force to or assaults any person bringing provisions or supplies to
the forces, shall on conviction by court martial, be liable to suffer imprisonment
for a term which may extend in the case of offences specified in clauses (d) and
 (e) to two years and in the case of the offences specified in the other clauses to
ten years or such less punishment as is in this Act mentiones.
The following case should be studied8.

w&m;olBuD; a'gufwmarmifarmif? AdkvfrSL;BuD;xGef;omESifh w&m;olBuD;

OD;atmifBuD;wdkUa½SUwGif
armif&efvif;(t,lcHw&m;vdk)
ESifh
jynfaxmifpkjrefrmEdkifiH(t,lcHw&m;cH)9

wyfrawmf tufOya'yk'fr 41(i) t&? txuft&m½Sdrsm;u xkwfqifh xm;aom

trdefUudkvkdufem&ef ysufuGufrI?
t,lcHw&m;vdktm; &Ja mfrsm;udk eHeufwdkif; udk,fwdkifwef;pDapí t0wftpm;
taetxdkifESifh ywfoufonfhudpörsm;udk Muyfrwfajymqdk&ef txuft&m½Sdrsm;u xkwfxm;aom
trdefUudk vdkufem&ef ysufuGufonfh jypfrIudk usL;vGefcJhonf[k awGU½Sd&m 1959 ckESpf
wyfrawmftufOya'yk'fr 41(i)t& t&mcHAdkvftqifhrS wyfMuyfBuD;tqifhodkUavsmhayghaom
jypf'Pfudk csrSwfcJhonf/

qHk;jzwfcsuf/ / wyfrawmfom;wpfOD;onf oufqdkif&m txuft&m½Sdu csrSwfaom trdefUudk

wduspGmvdkufem&onf/ wyfrawmfom;wpfOD;taeESifh trdefUudk em;rvnfu
½Sif;vif;ar;jref;&onf/

8
1965 B. L R ( C. M. A. C ) 62
9
1965 ckESpf &mZ0wft,lcHrI trSwf 13
 xdkUodkUar;jref;NyDF;aemuf ½Sif;vif;pGmem;vnfaomtcg trdefUtwdkif; wdwdusus
vdkufemaqmif½Guf&onf/ xdkUuJhodkU aqmif½Guf&eftwGuf tcuftcJay:aygufvQif oufqdkif&m
txuft&m½Sdtm; owif;ydkUí trdefUudk vdkovdkjyifqifay;&ef awmif;cH&efom½dSonf/
rdrdoa mt& trdefUjzifh ay;tyfaomwm0efudk tjcm;ol wpfOD;tm; wpfqifhvGJtyf
apckdif;&efr[kwf/ þpnf;urf;ESifhusifhxHk;onf &mxl;edrfhjrifh ra½G; wyfrawmfom;wdkif;ü
wnf&onf/ xdkodkUwnfrSomvQif wyfrawmf wpfckvHk; taeESifh pnf;urf;½dS½Sdwm0efododeSifh
wkdif;jynf\wm0efudk xrf;aqmifEkdifonf/
xdkUaMumifh &nfñTef;aom Oya'yk'frt& armif&efvif;tay:wGif jypfrIxif½Sm;
awGU½Sdxm;jcif;ESifh jypf'PfpD&ifxm;jcif;wdkUonf rSefuefonf[k uGsEkfyfwkdU,lqMu onf/
xkdUaMumifh 4if;\t,lcHudk y,fvkdufonf/

5.11 Conduct unbecoming an officer

Section 44
Any officer or warrant officer who behaves in a manner unbecoming his position
and character expected of him shall, on conviction by court-martial, if he is an officer, be
liable to cashiered or to suffer such less punishment is in this Act mentioned, and if he is
a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this
Act mentioned.
As to the above provision, the case of lieutenant Kyaw Lin V. The Union of
Myanmar10 should be studied together.
Where on the evidence, on the record and on the our admission of the accused, if
was found that the accused has written love letters to the wife of his subordinate, and
was having a love affair with her.
The accused had behaved in a manner which was unbecoming of the position and
character of an officer, and was properly convicted under section 44 of the Defence
Services Act.
10
1965 B. L. R (C. M. A. C)
 In confirming the conviction on the accused the Court also referred to and
followed the case of Maung Hla Shwe, Vs. The Union of Myanmar11, and thus dismissed
the appeal. Hence, the accused had been awarded the sentence of cashiering.

5.12 Intoxication
Section 47
Any person subject to this Act who is found in a state of intoxication, whether on
duty or not, shall, on conviction by court – martial, if he is an officer be liable to be
cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is not
an officer, he liable, subject to the provisions of sub-section (2), to suffer, imprisonment
for a term which may extend to two years or such less punishment as is this Act
mentioned.
(2) Where an offence of begin intoxicated is committed by a person other than an
officer when not on active service or not on duty, the period of imprisonment awarded
shall not exceed six months.
Explanation – For the purposes of this offence, a person is guilty of intoxication if
owing to the influence of alcohol or any drug, whether alone or in combination with any
other circumstances, he is unfit to be entrusted with his duty or any duty which he might
have been called upon to perform or behaves in disorderly manner or manner likely to
bring discredit on the service.
The provision of this section should be read along with the prevision of section
32(k) and section 35 (c) of the Defence Services Act.
As to the explanation of section 47, some amendment has been made in respect of
the word ' alcohol'.12 There the word "owing to the influence of alcohol or any drug" has
been inserted.

11
1962 B. L R 271
12
1961 Defence Services ( Amendment ) Act. Act No. 39 of 1961
 The giving of sentence upon those who committed the provision will be quite
different from each other depending on the rank, time and place and above all, the
accused will only be liable, if the comes under the explanation clause of this section.

5.13 Offences in relation to Breach of Discipline

Section 65
Any person subject to this Act who is guilty of any act or omission which, though
not specified in this Act, is prejudicial to good order and military discipline shall, on
conviction by court-martial, be liable to suffer imprisonment for a term which may
extend to seven years or such less punishment as is in this Act mentioned.
Examples of such kind of offences can be gathered from different cases occurred.
Hence,
(1) causing loss of money or property due to negligence.
(2) possession of public property or any property of a soldier without due authority.
(3) using the government vehicle and petrol for own use.
(4) injuring another person or himself out of his negligence.
(5) lending money from his sub- ordinates or gambling or disobeying such orders
lawfully given by his senior authorities.
(6) lying to a superior officer.
(7) committing an offence.
As regards the provision of section 65 example (4), the decision in the case of
Maung Sit Thein Vs. The Union of Myanmar13 should be taken into account. The
appellant, was charged with section 71 of the Defence Services Act read with section 307
of the Penal Code, and Sentenced to suffer rigorous imprisonment for 7 years after
dismissal from Service. This sentence has been passed by a Summary General Court-
Martial but the confirming authority has however mitigated the sentence to a term of 3
years rigorous imprisonment.

13
1985 B.L.R ( C.M. A.C)
 But the appellate Court finds itself unable to accept the charge of attempted
murder, and therefore after considering the clear established facts held that, the accused
was guilty of acts and omissions prejudicial to good order and military discipline, within
the mischief of section 65 of the Defence Service Act for which he shall suffer rigorous
imprisonment for a term of 2 years after dismissal from the service.

5.14 Miscellaneous Offences

Section 66
Any person subject to this Act who commits any of the following offences, that is
to say,
(a) being in command at any post or on the march, and receiving a complaint that
any one under his command has beaten or otherwise maltreated or oppressed any person,
or has disturbed any fair or market, or committed any riot or trespass, fail to have due
reparation made to the injured person or to report the case to the proper authority; or
(b) by defiling any place of worship, or otherwise, intentionally insults the religion
or wounds the religious feelings of any person; or
(c) attempts to commit suicide, and in such attempt does any act towards the
commission of such offence; or
(d) being below the rank of warrant officer, when off duty, appears, without proper
authority, in or out of the unit lines or camp, air craft or ship, carrying a rifle, sword or
other offensive weapon; or (2010-Substituted)
(e) directly of indirectly accepts or obtains, or agrees to accept or attempts to
obtain, for himself or for any other person, any gratification as a motive or reward for
procuring the enrolment of any person, or leave of absence, promotion or any other
advantage or indulgence for any person in the service; or
(f) commits any offence against the property of person of any inhabitant of , or
resident in, the country in which he is serving shall, on conviction by court-martial, be
liable to suffer imprisonment for a term which may extend to seven years or such less
punishment as is in this Act mentioned.
 As regards the provision of section 66(c) the case of Maung Chaw Vs. The Union
of Myanmar should be studied.
With regard to the provision of section 66 (c), it should be studied along with the
provision of section 309 of the Penal Code. The difference in giving or sentences under
these two Laws should be noticed.

5.15 Offences in relation to custody

5.15.1 Section 48 (Permitting escape of person in custody)

Any person subject to this Act who commits any following offence, that is to say-
Secon 48(a) (2010, Amended)
(1) substitutes a convicted prisoner or a person under lawful custody for whom he
is assigned duty to control or is responsible to control or guard with any other person; or
(2) allows or accepts such substitution;
he shall on conviction by the Court-Martial, be punished with imprisonment for a term
which may extend to fourteen years or with less punishment as provided in this Act.
Section 48,(b)
willfully or without reasonable excuse allows to escape person who is committed
to his charged or whom it is his duty to keep or guard;
shall, on conviction by court-martial, be liable, if he acted willfully to suffer
imprisonment for a term which may extend to fourteen years or such less punishment as
in this Act mentioned; and if he has not acted willfully, to suffer imprisonment for a term
which may extend to two years or such less punishment as in this Act mentioned.
5.15.2 Escape from custody
Section 50
Any person subject to this Act who, being in lawful custody, escapes or attempts
to escape, shall, on conviction by court-martial, be liable to suffer imprisonment for a
term which may extend to five years or such less punishment as in this Act mentioned.

Criminal force
annoyance
plunder
on a slip
ambit
despondency
countersign
Mutiny
insubordination
presided
pardoned
incites
conspires
endeavors
allegiance
desertion
cognizant
apprehended
convened
overstays
parade
quits
defiance
infantry
Regiment
remitted
General Amnesty Order
quashed
quarrel
affray
assaults
resists
barracks
impedes
provost-marshal
behaves
disorderly
good order
gathered
mitigated
mischief
maltreated
disturbed
complaint
oppressed
defiling
insult
wounds
suicide
sword
offensive
gratification
indulgence
reward for procuring
inhabitant
serving