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PETITIONER: UNION OF INDIA AND OTHERS

       Vs.

RESPONDENT: SADHA SINGH

DATE OF JUDGMENT:       25/10/1999

BENCH: K.T.Thomas, M.B.Shah

JUDGMENT:

     Shah,J.

     Leave Granted.

     This  appeal  is filed against the judgment and  order dated 22.9.1998 passed by the High Court of Punjab & Haryana at  Chandigarh  in  Criminal Writ Petition No.1752  of  1997 filed by the respondent.

     Respondent was awarded life imprisonment and dismissed from  service by the General Court Martial after being tried for  the offence under Section 302 I.P.C.  and under Section 69  of the Army Act, 1950.  He preferred a writ petition  in the   High  Court  for  his   immediate  release  from   the imprisonment   on   the  ground   that  he   has   undergone imprisonment  exceeding 14 years.  The High Court arrived at the  conclusion  that in view of the decision in Ajit  Kumar etc.   Vs.   Union  of  India, {1987  Supp.   SCC  493}  the respondent  would  be entitled to remissions earned  in  the jail and thereby respondent spent total period of 15 years 8 months  and 29 days of imprisonment which obviously exceeded 14  years.  The Court, therefore, directed immediate release of  the respondent.  That order is challenged by filing this appeal.

     It has been pointed out by the learned counsel for the appellant   that  respondent  has   not   undergone   actual imprisonment  for  14 years.  Before the High Court, it  was admitted  that respondent had spent 11 years and 1 month  in actual  custody,  1 year 7 months and 29 days  in  pre-trial custody  and  has earned 4 years remission in the jail.   It is,  therefore, submitted that the order passed by the  High Court is, on the face of it, against the provision of

     Section  433A Cr.P.C.  and its interpretation given by this  Court in the case of Maru Ram.  Vs.  Union of India  & Anr., {(1981) 1 S.C.R.  1196}.

     A  Constitution Bench of this Court in Maru Rams case (Supra)  held  that  Section 433A, Cr.P.C.   over-rides  all other  laws which reduce or remit the term of life  sentence and mandates that minimum of 14 years of actual imprisonment should  be undergone by convict where a sentence of life  is imposed  for  an  offence  for which death  is  one  of  the

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punishments  provided by law and remissions vest no right to release  when sentence is for life imprisonment.  The  Court also  reiterated that imprisonment for life lasts until  the last  breath and whatever be the length of remission earned, the  prisoner  can  claim  release  only  if  the  remaining sentence  is remitted by the Government.  The Court  further negatived   the  contention  that   Section  5  of  Criminal Procedure   Code  saves   all  remissions,  short-sentencing schemes  as special and local laws and, therefore, they must prevail  over  the  Code including Section 433A.   For  that purpose, Section 5 was referred to which is as under:-

     Nothing  contained in this 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.

     The  Court  observed that broadly speaking,  the  said Section  consists  of three components  (i)  the  Procedure Code  generally  governs matters covered by it;  (ii)  if  a special  or  local law exists covering a certain area,  such law  will  be saved and will prevail over the provisions  in the  Code  (The  short-sentencing   measures  and  remission schemes  promulgated by the various States are special  and local laws);  and (iii) if there is a specific provision to the  contrary, then that will over-ride the special or local law.   After considering the submissions and decisions cited by the parties, the Court held thus:-

     The  Criminal Procedure Code is a general Code.   The remission  rules  are  special laws but Section  433A  is  a specific,  explicit,  definite  provisions  dealing  with  a particular   situation   or  narrow   class  of  cases,   as distinguished  from  the  general run of  cases  covered  by Section  432  Cr.P.C.  Section 433A picks out of a  mass  of imprisonment  cases  a specific class of  life  imprisonment cases   and  subjects  it   explicity  to  a  particularised treatment.    It  follows  that   Section  433A  applies  in preference  to  any special or local law because  Section  5 expressly  declares that specific provisions, if any, to the contrary  will  prevail over any special or local  law.   We have  said  enough  to  make the point  that  specific  is specific  enough and even though special to specific  is near  allied and thin partition do their bounds divide the two  are  different, Section 433A escapes the  exclusion  of Section 5.

     In  the  present case, respondent was convicted  under Section  69 of the Army Act, 1950 for the offence of murder. It  is  true  that  Army act is a  special  act  inter  alia providing  for  investigation, trial and punishment for  the offences  mentioned therein by a special procedure.  Section 177 empowers the Central Government to make rules in respect of  prisons and prisoners.  Sections 179 to 190 provide  for pardon, remissions and suspension of the sentence.  There is no specific provision similar to Section 433A or contrary to it.   Hence,  Section 433A would operate in the field and  a prisoner,  who  is undergoing sentence of  imprisonment  for life  and is convicted for an offence for which death is one of  the  punishments provided by law or where a sentence  of death  imposed  on a person has been commuted under  Section

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433(1)  Cr.P.C.   to imprisonment for life, has to serve  at least  14 years of imprisonment excluding remissions  earned in the jail.

     However,  learned counsel for the respondent submitted that  in  the case of Ajit Kumar (Supra), this  Court  dealt with  a  similar question and held that prisoners, who  have been  convicted  and sentenced by the General Court  Martial under the Army Act and who have been lodged in civil prison, were  not entitled to the benefit of set-off provided  under Section 428 Cr.P.C.  In

     that  case,  this  Court  held that  in  view  of  the provisions  in  the Army Act, which is a  special  enactment containing  elaborate  procedure  for trial of  the  persons covered  therein,  prisoners,  who have been  convicted  and sentenced  by  the General Court Martial under the Army  Act are not entitled to get benefit of set-off under Section 428 of the Code.  In the said case, the Court considered Section 167  of  the  Army  Act, which 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  this specific  provision, the Court held that benefit of  Section 428  cannot  be  claimed by the person convicted  under  the provisions of Army Act.  In our view, the said decision will have  no  bearing  on  the  applicability  of  Section  433A Cr.P.C., as in the Army Act there is no specific or contrary provision covering the same area.  Section 433A, Cr.P.C.  is a  special provision applicable to all the convicts, who are undergoing  imprisonment  for life as  provided  thereunder. For  such  convicts,  it puts an embargo  for  reduction  of sentence  below  14 years of actual imprisonment.  We  would also  mention that after the decision in Ajit Kumar (Supra), Army Act is amended (by Act

     No.37  of  1992) and Section 169A is added,  which  is similar to Section 428 of Criminal Procedure Code.

     In  view  of  the  above, as the  respondent  has  not completed  14 years of actual imprisonment, the order passed by the High Court is quashed and set- aside.

     The appeal is allowed accordingly.