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PETITIONER: AJIT KUMAR, ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS ETC.

DATE OF JUDGMENT25/11/1987

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAY, B.C. (J)

CITATION:  1988 AIR  283            1988 SCR  (2)  40  1987 SCC  Supl.  493     JT 1987 (4)   462  1987 SCALE  (2)1113

ACT:      Plea for  a set-off  of pre-trial detention against the sentence of imprisonment under section 428 of the Cr. P. C.

HEADNOTE: %      The petitioners  were convicted  and sentenced  by  the General Court Martial under the Army Act, 1950 and lodged in Civil Jails.  They  sought  a  set-off  of  their  pre-trial detention against the sentence of imprisonment. The jail and army authorities rejected their claim. They moved this Court for relief by writ petitions.      Dismissing the petitions, the Court, ^      HELD: The petitioners have been convicted and sentenced under the  Army Act.  The Army  Act is  a special  enactment containing elaborate  procedure for the trial of the persons covered thereunder. In view of the various provisions in the Army Act,  the petitioners  cannot call into aid section 428 of the  Code of  Criminal Procedure. They may be entitled to remissions as provided in the jail manuals but not a set-off under sec. 428. The benefit of section 428 cannot be claimed by a person convicted and sentenced by a Court-Martial under the Army  Act, as  held by the Punjab and Haryana High Court in Bhagwan  Singh v.  The Asstt.  Superintendent, [1977]  79 Punjab Law  Journal 19.  The High Courts of Delhi and Madras have also held likewise. But in Subramonian v. O.C. Armoured Static Workshop,  [1979] Crl.  L.J. 617-a  contrary view has been taken  by the Kerala High Court which cannot be said to have laid down the law correctly. [42G-H; 43A-C]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  (Criminal)  Nos. 225 and 513 of 1987.      (Under Article 32 of the Constitution of India). 41      L.K. Pandey for the petitioner in W.P. No.225 of 1987.      M.S. Gupta for the petitioner in W.P. No. 513 of 1987.      Dalveer Bhandari,  Ms.  A.  Subhashini  and  Mrs.  C.K.

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Sucharita for the Respondents.      The Judgment of the Court was delivered by      JAGANNATHASHETTY,  J.   The   petitioners   have   been convicted and  sentenced by  the General Court Martial under the Army  Act, 1950.  They have  been lodged in civil jails. They seek a set off of their pre-trial detention against the sentence of imprisonment. The claim has been made under sec. 428 of the Code of Criminal Procedure ("The Code"). The jail and the army authorities have rejected their claim.      If sec.  428 of  the  Code  of  Criminal  Procedure  is applicable to the case of the petitioners, there is no doubt that they  are entitled  to get  the  benefit  thereof.  The section provides  that where  an accused  person has,  on  a conviction, been  sentenced to  imprisonment for a term (not being imprisonment  in default  of  payment  of  fine),  the period of  detention, if  any undergone  by him  during  the investigation, inquiry  or trial and before the date of such conviction,  shall   be  set   off  against   the  term   of imprisonment and  the liability  of such  person to  undergo imprisonment shall  be restricted  to the remainder, if any, of the  term of  imprisonment imposed  on him. The period of detention referred  to in  the section  is  of  the  accused person during  the investigation,  enquiry or  trial of  the offence against  him. Section  2(h) defines  ’investigation’ and  sec.   2(g)  defines   "enquiry".  Both  refer  to  the proceedings under  the Code.  In the  first place,  there is nothing on the record to indicate that the cases against the petitioners were  investigated or  enquired into  under  the Code. Secondly, sec. 5 of the Code provides:           "Nothing contained  in  the  Code  shall,  in  the      absence of a specific provision to the contrary, affect      any special  or local  law for the time being in force,      or any  special jurisdiction or power conferred, or any      special form  of procedure prescribed, by any other law      for the time being in force. " 42 The saving  provisions in  sec. 5 provides that the Code, as such, will  not affect  (I) any  special law, (II) any local law, (III)  any special  jurisdiction or  power and (lV) any special form  of procedure,  prescribed by any other law for the time  being in  force. The  Army Act,  1950 is a special enactment  applicable   to  persons  covered  under  sec.  2 thereof.  It  also  provides  special  procedure  for  court martial.      The  learned   counsel  for   the  petitioner  however, submitted that since the petitioners are lodged in the civil prisons, they are entitled to the benefit of sec. 428 of the Code just  like any other convict in the jail. We are unable to agree  with  this  contention.  The  petitioners  may  be entitled to  remissions as provided in the jail manuals, but not set  off under  sec. 428  of the  Code. They  have  been lodged in  the civil  prisons by  an order  made under  sec. 169(1) of the Army Act. Sec. 169(I) provides:      "     Whenever  any sentence  of imprisonment is passed      under this  Act by  a  court-martial  or  whenever  any      sentence of  death or  transportation  is  commuted  to      imprisonment, the  confirming officer  or in  case of a      summary court-martial  the officer holding the court or      such other officer as may be prescribed, shall, save as      otherwise provided  in sub-sections (3) and (4), direct      either that  the  sentence  shall  be  carried  out  by      confinement in  a military  prison or  that it shall be      carried out by confinement in a civil prison.      xx         xx        xx        xx       xx           xx      xx         xx        xx        xx       xx          xx"

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    Section 167 of the Army Act also provides that the term of sentence  imposed by a court-martial shall be reckoned to commence on  the day  on which the original proceedings were signed by  the presiding  officer or  by the officer holding the court martial as the case may be.      In view  of these provisions in the Army Act which is a special enactment  containing elaborate  procedure for trial of the  persons covered thereunder, we do not think that the petitioners could  call into  aid the provisions of sec. 428 of the  Code. In Bhagwan Singh v. The Asstt. Superintendent, 119771 79  Punjab Law Journal 19, the Pun jab & Haryana High Court said  that the benefit of sec. 428 can only be claimed by a person whose case is investigated, inquired into or 43 tried under  the Code of Criminal Procedure and it cannot be claimed A by a person convicted and sentenced under the Army Act by a courtmartial.      The Delhi High Court in F.R. Jesuratnam v. Chief of Air Staff, [19761 Crl. L.J. 65 and the Madras High Court in P.P. Chandrasekaran v.  Government of India, [1977] Crl. L.J. 677 have also  taken the similar view. But the Kerala High Court in Subramonian v. O.C. Armoured Static Workshop, [1979] Crl. L.J. 617  has taken  a contrary  view. In  our opinion,  the Kerala High  Court cannot  be said to have laid down the law correctly.      In the  result, these petitions fail and are dismissed. C S.L.                                    Petitions dismissed. 44