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PETITIONER: AJMER SINGH ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT29/04/1987

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) SEN, A.P. (J)

CITATION:  1987 AIR 1646            1987 SCR  (3)  84  1987 SCC  (3) 340        JT 1987 (2)   290  1987 SCALE  (1)953

ACT:    Code  of Criminal Procedure, 1973: s.  428--Applicability of  to proceedings before the Court-Martial under  the  Army Act.

HEADNOTE:     Section 167 of the Army Act, 1950 provides that whenever a  person is sentenced by a Court-Martial  to  imprisonment, the  term of his sentence shall be reckoned to  commence  on the day on which the original proceedings were signed by the Presiding Officer. Section 5 of the Code of Criminal  Proce- dure  lays  down that nothing contained in  the  Code  shall affect any special or local law or any special  jurisdiction or power or any special form of procedure prescribed by  any other  law in. force. Section 428 of the Code  provides  for set  off of the period of detention undergone by an  accused person  during the investigation, inquiry or  trial  against the  term  of imprisonment. Section 475 of the  Code  states that  when  any person is brought before  a  Magistrate  and charged  with an offence for which he is liable to be  tried either  by a Court to which the Code applies or by a  Court- Martial,  such Magistrate shall in proper cases deliver  him together  with  a statement of the offence, of which  he  is accused,  to the commanding officer of the unit to which  he belongs.     The appellants who were convicted by the General  Court- Martial for offences under the Army Act are undergoing their sentences of imprisonment. Their petitions claiming grant of benefit of the provision for set off contained in s. 428  of the  Code having been dismissed by the High Court they  pre- ferred  these appeals by certificate under Article  13-A  of the Constitution of India.     It  was contended on their behalf that the Army  Act  is silent with respect to the topic as to the date with  effect from  which the period of imprisonment covered by  the  sen- tence  is  to be reckoned, and that since s. 5 of  the  Code only  lays down that nothing contained therein shall  affect any  special  or local law, in the absence of  any  specific provision  in the Army Act the provisions of the Code  would get attracted. Dismissing the appeals, the Court,

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   85     HELD:  1. The provision for set off contained in s.  428 of  the Code of Criminal Procedure is not attracted  in  the case of persons convicted and sentenced by Court-Martial  to undergo imprisonment. [91F]     2.  The  Army Act, the Navy Act and the  Air  Force  Act constitute  special laws in force conferring special  juris- diction  and  powers on Courts-Martial. They embody  a  com- pletely  self  contained comprehensive code  specifying  the various  offences and prescribing the procedure  for  deten- tion, custody, investigation and trial of the offenders, the punishment  to be awarded, confirmation and revision of  the sentences  imposed, the execution of such sentences and  the grant  of pardons, remissions and suspensions in respect  of such sentences. Section 5 of the Code renders the provisions of  the Code inapplicable in respect of all matters  covered by such special law. [87G-88B]     3.  Section 167 of the Army Act specifically  lays  down that  whenever a person is sentenced by a  Court-Martial  to imprisonment, the term of his sentence shall be reckoned  to commence  on the day on which the original proceedings  were signed  by the Presiding Officer. In the race of this  cate- gorical  provision  it cannot be said that the Army  Act  is silent with respect to the topic as to the date with  effect from  which the period of imprisonment covered by  the  sen- tence is to be reckoned. [88G; 89AB]     4.  The distinction made in s. 475 of the  Code  between "trial  by  a  Court to which this Code applies"  and  by  a Court-Martial’  conclusively indicates that  Parliament  in- tended to treat the Court-Martial as a forum to the proceed- ings  before which the provisions of the Code will  have  no application. [90F]    5.  There is also intrinsic indication contained  in  the very  wording of s. 428 of the Code that it cannot have  any application  in  respect of persons tried and  sentenced  by Court-Martial. There is no ’investigation’ conducted by  any police officer under the Code or by any person authorised by Magistrate  in that behalf in the case of persons  tried  by the Court-Martial. No inquiry is conducted under the Code by any Magistrate or Court in respect of offences committed  by persons  which are tried by the Court-Martial. The trial  is also  not conducted by the Court-Martial under the Code  but only in accordance with the special procedure prescribed  by the  Army Act. There is, therefore, absolutely no scope  for invoking the aid of s. 428 of the Code of Criminal Procedure in respect of prisoners convicted by Court-Martial under the Act. [90G; 91D; E; 89C] 86     P.P.  Chandrasekaran  v.  Government of  India  &  Ors., [1977]  Cri. L.J. 677; T.S. Ramani v. The Superintendent  of Prisons,  [1982] Cri. L.J. 892 and F.R. Jesuratnam v.  Chief of Air Staff, [1976] Cri. L.J. 65, approved.     Subramanian v. Officer Commanding Armoured Static  Work- shop,  [1979] Cri. L.J. 617.and Anand Singh Bishit v.  Union of India & Ors., [1986] Cri. L.J. 563, overruled.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 532 of 1976. etc.     From  the  Judgment  and Order dated 9.2.  1976  of  the Punjab and Haryana High Court in Crl. Writ No. 13 1 of 1975.     Baldev Atrey, K.B. Rohtagi, R.A. Gupta, V.K. Jain,  S.K. Gupta and C.S. Vaidyanathan for the Appellant.

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   M.S. Rao, R.S. Sodhi, B. Parthasarathi and Ms. A. Subha- shini for the Respondents. The Judgment of the Court was delivered by     BALAKRISHNA ERADI, J. These four appeals have been filed against  judgments of the High Court of Punjab  and  Haryana rejecting  the claims of the appellants who have  been  con- victed  by the General Court-Martial for offences under  the Army Act and are undergoing their sentences of varying terms of  imprisonment  for the grant of benefit to  them  of  the provision  for set off contained in Section 428 of the  Code of  Criminal Procedure. The High Court has granted  certifi- cates of fitness under Article 134A of the Constitution  and it  is  on  the strength of those  certificates  that  these appeals have been preferred to this Court.     The common question of law that arises in these  appeals concerns  the  applicability of Section 428 of the  Code  of Criminal Procedure to persons sentenced to undergo imprison- ment by General Court-Martial under the Army Act. The  posi- tion  under  the Army Act will equally govern  persons  sen- tenced  to undergo imprisonment by Court-Martial  under  the Navy Act and the Air Force Act.     In  the judgments under appeal, the High Court has  fol- lowed an earlier ruling of a Division Bench of the same High Court in Ram           87 Labhaya  Sharma  v. Union of India and Others,  in  Criminal Writ No. 40 of 1975 decided on December 12, 1975 wherein  it was  held that the benefit under Section 428 of the Code  of Criminal  Procedure  is not available to convicts,  who  are tried, convicted and sentenced by Court-Martial.     There  is a divergence of views between  different  High Courts  on this question. The High Court of Madras  in  P.P. Chandrasekaran v. Government of India and Ors., [1977]  Cri. L.J. 677 (a case of courtmartial under the Navy Act) and  in T.S.  Ramani v. The Superintendent of Prisons,  [1982]  Cri. L.J.  892 (court-martial under the Army Act) has  taken  the view that the benefit of Section 428 of the Code of Criminal Procedure  cannot be claimed by persons convicted by  Court- Martial.  The same view has been taken by the High Court  of Delhi in F.R. Jesuratnam v. Chief of Air Staff, [1976]  Cri. L.J.  65 dealing with a case of court-martial under the  Air Force Act.     A Single Judge of the High Court of Kerala has  however, taken  a contrary view in Subramanian v. Officer  Commanding Armoured Static Workshop, [1979] Cri. L.J. 617 and the  said decision was referred to and followed by a Division Bench of the Calcutta High Court in the case of Anand Singh Bishit v. Union of India and Ors., [1986] Cri. L.J. 563.     An examination of the relevant provisions of the Code of Criminal  Procedure and the Army Act (as well as the  corre- sponding  provisions in the Navy Act and the Air Force  Act) makes  it abundantly clear that Section 428 of the  Criminal Procedure  can have no applicability whatever in respect  of persons convicted and sentenced by Court Martial.     Section  5 of the Code of Criminal Procedure  lays  down that  nothing contained in the said Code shall, in  the  ab- sence  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. The relevant Chapters of the Army Act,  the  Navy Act and the Air Force Act embody a completely self-contained comprehensive  Code  specifying the various  offences  under those  Acts and prescribing the procedure for detention  and custody of offenders, investigation and trial of the offend-

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ers by Court-Martial, the punishments to be awarded for  the various offences, confirmation and revision of the sentences imposed by Court-Martial, the execution of such 88 sentences  and the grant of pardons, remissions and  suspen- sions in respect of such sentences. These enactments, there- fore,  constitute a special law in force conferring  special jurisdiction and powers on Courts-Martial and prescribing  a special  form  of procedure for the trial  of  the  offences under  those  Acts. The effect of Section 5 of the  Code  of Criminal  Procedure is to render the provisions of the  Code of Criminal Procedure inapplicable in respect of all matters covered by such special law. Since in the four cases  before us  we are concerned with convictions by General  Court-Mar- tial  under the provisions of the Army Act, we  shall  refer specifically  to  the relevant provisions contained  in  the Army Act (hereinafter called the ’Act’).     Sections  34  to 68 contained in Chapter VI of  the  Act specify  the different categories of offences under the  Act including abetment of offences under the Act. Chapter VII of the  Act which comprises Sections 71 to 89 of the Act  deals with  the punishments awardable by Court-Martial in  respect of the different offences. Sections 10 1 to 107 contained in Chapter  IX of the Act deal with the arrest and  custody  of offenders and the proceedings prior to the trial. Chapter  X of  the Act describes in Sections 108 to 118, the  different kinds of court-martial, the authorities competent to convene them,  their composition, and respective powers. In  Chapter XI  consisting  of  Sections 128 to 152,  we  find  detailed provisions  laying  down  the procedure to  be  followed  by Court-Martial in conducting the trial of offenders.  Chapter XII  contains provisions relating to confirmation and  revi- sion  of the findings entered and sentences imposed  by  the different  categories of courtmartial. Sections 166  to  176 contained  in Chapter XIII deal with the execution  of  sen- tences  and  the establishment and  regulation  of  military prisons etc. The subject of granting pardons, remissions and suspensions  of sentences is dealt with in Sections  179  to 190  comprised in Chapter XIV of the Act. Thus we find  that the  Act  contains elaborate  and  comprehensive  provisions dealing  with all the stages commencing from the  investiga- tion  of  offences  and the apprehension  and  detention  of offenders  and terminating with the execution  of  sentences and the grant of remissions. suspensions etc.     Section  167  of  the Act specifically  lays  down  that whenever a person is sentenced by a Court-Martial under  the Act to imprisonment, the term of his sentence shall, whether it  has been revised or not, be reckoned to commence on  the day  on  which the original proceedings were signed  by  the Presiding  Officer or, in the case of a  summary  Court-Mar- tial,  by the Court. In the face of this categorical  provi- sion laying down that the sentence of imprisonment shall be  89 deemed  to  have commenced only on the day when  the  court- martial proceeding was signed by the Presiding Officer or by the Court as the case may be, it is in our opinion futile to contend  that  the Army Act is silent with  respect  to  the topic  as to the date with effect from which the  period  of imprisonment  covered by the sentence is to be reckoned.  We state  this only for the reason that an  ingenious  argument was  advanced  before us by Counsel for the  appellant  that Section  5 of the Code of Criminal Procedure only lays  down that nothing in the Code shall "affect" any special or local law  and hence in the absence of any specific  provision  in the  special  or local law covering the  particular  subject

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matter, the provisions of the Code would get attracted. Even if  this  argument  is to be assumed to  be  correct  (which assumption  we shall presently show iS wholly  unwarranted), inasmuch  as Section 176 of the Act specifically deals  with the  topic  of the date of commencement of the  sentence  of imprisonment, there is absolutely no scope for invoking  the aid  of  Section 428 of the Code of  Criminal  Procedure  in respect  of prisoners convicted by Court-Martial  under  the Act.     As we have already indicated, we are unable to accept as correct  the narrow and restricted interpretation sought  to be placed on Section 5 of the Code by the Counsel  appearing on  behalf of the appellants. In our opinion the  effect  of Section 5 of the Code is clearly to exclude the applicabili- ty  of the Code in respect of proceedings under any  special or  local law or any special jurisdiction or form of  proce- dure  prescribed  by  any other law.  Whatever  doubt  might otherwise have existed on this point is totally set at  rest by  Section  475  of the Code of  Criminal  Procedure  which furnishes a conclusive indication that the provisions of the Code  are  not intended to apply in  respect  of  proceeding before  the Court-Martial. That Section is in the  following terms:-               "475.  Delivery  to  commanding  officers   of               persons     liable    to    be    tried     by               Court-martial--(1) The Central Government  may               make  rules consistent with this Code and  the               Army  Act,  1950 (46 of 1950), the  Navy  Act,               1957 (62 of 1957), and the Air Force Act, 1950               (45  of 1950) and any other law,  relating  to               the  Armed Forces of the Union, for  the  time               being  in force, as to cases in which  persons               subject  to military, naval or air force  law,               or  such other law, shall be tried by a  Court               to  which this Code applies or by a  Courtmar-               tial; and when any person is brought before  a               Magistrate  and  charged with an  offence  for               which  he  is liable to be tried either  by  a               Court  ’to  which this Code applies  or  by               a  Court-martial, such Magistrate  shall  have               regard to such               90               rules, and shall in proper cases deliver  him,               together  with a statement of the  offence  of               which he is accused, to the commanding officer               of  the  unit to which he belongs, or  to  the               commanding  officer of the  nearest  military,               navel  or air force station, as the  case  may               be,  for  the  purpose of  being  tried  by  a               Court-martial.               Explanation--In this section--                      (a) "unit" includes a regiment,  corps,               ship, detachment, group, battalion or company,                      (b) "Court-martial" includes any tribu-               nal  with  the powers similar to  those  of  a               Court-martial  constituted under the  relevant               law  applicable  to the Armed  Forces  of  the               Union.               (2)  Every  Magistrate shall, on  receiving  a               written  application for that purpose  by  the               commanding  officer  of any unit  or  body  of               soldiers,  sailors  or  airmen  stationed   or               employed  at  any such place, use  his  utmost               endeavors  to apprehend and secure any  person               accused of such offence.

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             (3) A High Court may, if it thinks fit, direct               that a prisoner detained in any jail  situated               within  the State be brought before  a  Court-               martial  for trial or to be examined  touching               any matter pending before the Court-martial." The  distinction  made in the Section between  "trial  by  a Court  to  which this Code applies" and by  a  Court-Martial conclusively indicates that Parliament intended to treat the Court-Martial as a forum to the proceedings before which the provisions of the Code will have no application.      Further,  there is also intrinsic indication  contained in  the very wording of Section 428 of the Code of  Criminal Procedure  that the section cannot have any  application  in respect  of  persons tried and sentenced  by  Court-Martial. Section 428 of the Code reads--                        "428.  Period of detention  undergone               by  the  accused to be  set  off  against  the               sentence  of  imprisonment--Where  an  accused               person  has, on conviction, been sentenced  to               imprisonment  for a term, not being  imprison-               ment in               91               default  of  payment of fine,  the  period  of               detention, if any, undergone by him during the               investigation,  inquiry or trial of  the  same               case  and before the date of such  conviction,               shall be set off against the term of imprison-               ment,  imposed on him on such conviction,  and               the  liability of such person to  undergo  im-               prisonment  on  such conviction shall  be  re-               stricted to the remainder, if any, of the term               of imprisonment imposed on him."     The section provides for set off of the period of deten- tion  undergone by an accused person during "the  investiga- tion, inquiry or trial" of the same case before the date  of conviction. The expression "investigation" has been  defined in Section 2(h) of the Code as follows:               "2.(h)  "investigation" includes all the  pro-               ceedings under this Code for the collection of               evidence  conducted by a police officer or  by               any  person (other than a Magistrate)  who  is               authorised by a Magistrate in this behalf." In  the case of persons tried by Court-Martial there  is  no investigation conducted by any police officer under the Code or by any person authorised by Magistrate in that behalf.     Similarly, the expression "inquiry" has been defined  in Section  2(g) of the Code as meaning "every  inquiry,  other than  a trial, conducted under this Code by a Magistrate  or Court." No inquiry is conducted under the Code by any Magis- trate  or  Court  in respect of the  offences  committed  by persons  which are tried by the Court-Martial. The trial  is also  not conducted by the Court-Martial under the Code  but only in accordance with the special procedure prescribed  by the Act. Such being the position, the provision for set  off contained  in Section 428 of the Code of Criminal  Procedure can never be attracted in the case of persons convicted  and sentenced by Court-Martial to undergo imprisonment.     In  the light of the foregoing discussion we  uphold  as correct  the  view  taken by the High Court  of  Punjab  and Haryana  in the judgments under appeal. We also  approve  of the  decisions of the High Courts of Madras and Delhi  cited above  wherein the view has been taken that the  benefit  of Section  428  of the Code of Criminal  Procedure  cannot  be claimed by persons tried and sentenced by the Court-Martial. The decision in Subramanian v. Officer Commanding Armoured

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92  Static Workshop (supra) rendered by a learned Single  Judge of the High Court of Kerala does not contain any  discussion of the relevant provisions of the two concerned statutes and what  little  reasoning is found in the  judgment  does  not appeal to us as correct or sound. The Division Bench of  the Calcutta High Court in its decision in Anand Singh Bishit v. Union  of  India and Ors. (supra) has merely  followed   the aforesaid  ruling of the Single Judge of the High  Court  of Kerala. We hold that these two decisions do not lay down the correct law.      It  follows  from the foregoing discussion  that  these appeals are devoid of merits and they will accordingly stand dismissed. P.S.S.                                               Appeals dismissed. 93