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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: ANAND SINGH BISHT

DATE OF JUDGMENT:       28/08/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The judgment  dated 30th  September, 1985 passed by the Division Bench  of the Calcutta High Court in Criminal Misc. Case No.  1072 of  1985 arising out of a writ Petition for a writ of  habeas corous  made by  the respondent  Anand Singh Bisht is  under challenge  in this appeal. Anand Singh Bisht was a  Naik in  the Border  Security Force. For injuring one cadet Raj  Kishore singh  he  was  tried  under  the  Border Security Force  Act, 1968  and was convicted for the offence under Section of the Indian penal Code and was sentenced to suffer  one years’ rigorous imprisonment. In execution of such sentence,  he was lodged in the Bernampur Central jail. The respondent  Anand Singh  Bisht moved  the hadeas  corpus petition  before   the  Calcutta   High  Court   inter  alia contending that  as he  had undergone pre-trial detention by the Border  Security Force authorities for about one year he was entitled  to set off his sentence of one year’s rigorous imprisonment under  section 428  of  the  Code  of  Criminal Procedure and  he should,  therefore, be  forthwith released from detention.  By the  imougned judgment,  the High  Court came to  the finding that the beneficial provison of Section 428 of  the code  of Criminal Procedure is applicable in the case of  the respondent  even though he was tried by a court martial under the border Security Force Act and Section 5 of the Code  of Criminal  Procedure has  not  taken  away  such benefit. Accordingly, an order was passed on 30th September, 1985 to  release the  respondent from detention. Against the said decision  of the  High Court  of Calcutta, the Union of India has Preferred the instant appeal.      It appears  that on  the question  as  to  whether  the benefit of  Section  428  of  the  Criminal  Procedure  code Providing for  set off  the Period of detention undergone by an accused  person during  investigation, inquiry  or  trial against the  term of imprisonment is applicable when an army personnel is  convicted by  the Court Martial under the Army Act, the  High Courts  gave cifferent decisions, One of such decisions came  up for  consideration before  this court  in

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Ajmer singh  Vs.  Union  of  India  and  Ors.  The  decision rendered by  this Court  in the  said case  is  reported  in (1987) 3  SCR 84.  The decision  of the  Calcutta High Court Passed in  the said  habeas corpus  petition concerning  the respondent, Anand  singh Bisnt  was also  cited before  this Court in  Ajmer Singh’s  Case (supra). In Ajmer singh’s case this  Court  has  field  that  the  Provision  for  set  off contained in  section 428  of the code of Criminal Procedure is not  attracted in  the  case  of  persons  convicted  and sentenced by  Court Martial  under the Army Act. It has been indicated by  this Court that the Army Act, the Navy Act and the  air   Force  Act   constitute  special  laws  in  force conferring  special   jurisdiction  and   powers  on  Courts Martial.   They   embooy   a   completely   self   contained comprenersive  code   sbecifying  the  various  offices  and prescribing   the    procedure   for    detention,   custody investigation and  trial of the offenders, the punishment to be awared,  confirmation and revision of the sentences to be imposed the  execution of  such sentence  and the  grant  of pardons,  remissions  and  suspensions  in  repect  of  such senteces. Section  5 of  the Code  renders the Provisions of the Code  inapplicabel in  respect of all matters covered by such special  law. It  has also  been indicated  in the said decision that  the distinction  made in  section 475  of the Code 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. It  has also  been held  in  the  said decision that  there is  also intrinsic indication contained in the  very wording  of Section  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 persons authorised  by Magistrate in that behalf in the case of persons  tried by the court Martial. No inquiry 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 section 428  of the code of Criminal Procedure in respect of prisoners convicted  by Court  Martial under  the  Act.  The decision the Calcutta High Court rendered in the case of the respondent Anand Singh Bisht was expressly over-ruled in the said decision  of Ajmer Singh’s case(supra). We may indicate here that the decision made in Ajmer Singh Vs.Union of India and Others  (1993 (4) SCC 327. This appeal, therefore should be  dismissed.   Mr.  Amrish   kumar,  the  learned  counsel appearing for the respondent has however submitted before us that  admittedly   the   respondent   had   undergone   pre- trialdentention for  almost one  year and  even though he is not entitled  to set  off under  Section 428 of the Criminal Proceoure Code, as held by this Court, he is entitled to get compensation for  such long detention at the pretrial stage. In support of such contention, he has relied on the decision or  this   Court  in   Bhuwaneshwar  Singh’s  case  (supra). Bhuwaneshwar Singh  was tried by the Court Martial under the Army Act  and was convicted by the Court Martial, but he was detained for  more than three months as under-trial prisoner by the  army Authorities  in violation  of the mandate under Rule  27  of  the  Rules  framed  under  the  Army  Act  and Rs.1,000/- was  awarded by  the trial  court as compensation for such  detention  beyond  the  peried  of  three  months,

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without taking  the approval of the Central Government under Rule 27  for keeping  the under trial in detention exceeding three   months.   Considering   the   inadequacy   of   such compensation  of   Rs.l,000/-,  this   Court  enhanced  such compensation in  Bhuwneshwar Singh’s case (supra). So far as the Border  Security Force  Act is  concerned, there  is  no similar provision  as in  the Army  Act and the rules framed thereunder, but  under rule  39 of the Border Security Force Rules, a  delay report is required to be furnsihed. Sub-Rule (2) of Rule 39 provides that where the accused is kept under arrest for  a period  exceeding three  months without  being brought to  trial, a  special report  regarding  the  action taken and  the reasons  for the  delay shall  be sent by the Commandant to  the Director-General  with a copy each to the Deputy   Insoector-General    and   the    Inspector-General concerned. There  is no  provision under the Border Security force Act  or the  Rules framed  Thereunder to  get aporoval from the  Central Government or by any higher authorities if the undererial accused is kept in detention during the Court Martial proceedings  exceeding three  months. Only the delay report is  required to  be furnished.  It is  only desirable that suitable  provision is  made in  the Act  and the Rules requiring to  take approval  from higher  authorities if  an undertrial member  of the  Border Security  force is  to  be detained for more than three months for Good reasons, before conclusion of Court Martial Proceedings as  in the army act. we may  also in  indicate here  that the  Army Act  has been amended in  1992 and  Section 69-A  has been incorporated in the Army  Act which is a similar provision for set off under Section 428  of the  Criminal Procedure  Code.  It  will  be approoriate to  refer to  the provisions of Section 169 A of Army Act:      "  169   -A.  Period   of   custody      undergone  by the officer or person      to   be   set   off   against   the      imorisonment,-  When  a  person  or      Officer subject  to this Act Act is      sentenced by  a court-martial  to a      term of  imprisonment, not being an      imprisonmemt in default  of payment      of fine, the period spent by him in      civil or  military  custody  during      investigation, inquiry  or trial of      the same  case and  before the date      or order of such sentence, shall be      set  off   against  the   term   of      imprisonment imposed  upon him, and      the liability  of  Such  person  or      officer to  undergo imprisonment on      such order  of  sentence  Shall  be      restricted  to  the  remainder,  if      any, of  the term  of  imprisonment      imposed upon him.      The learned  counsel appearing  for the appellant union of India.  on our  enquiry, has not been able to aporise the Court as  to whether  there is  any active consideration for incorporating   similar provision  in  the  Border  Security force Act, 1968. In our view, a provision similar to Section 428 of  the Criminal  procedure code or Section 169 A of the Army Act should incorporated in Border Security force Act so as to  safeguard the  interest of  the undertrial accused in the   Border   Security   Force,   because   a   member   of BorderSecurity Force when subjected to Court Martial is not entitled to  the benefit  of Section  428  CriminalProcedure Code. It  is only  desirable that  such amendment  should be

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made without delay.      Mr.  Amrish   Kumar,  the   Learned  counsel   for  the respondent has  submitted that although within the scope and ambit of  this appeal,  the prayer for compensation does not arise but  in order  to give  complete justice  in the case, this  Court   can  give   direction  for   giving   suitable compensation to  the respondent  in exercise  of  the  power under Artical  142 of  the Constitution  of India.  We  have taken into consideration the Justification of such claim for compensation. But  in the  facts and  circumstances  of  the case, it  appears to  us that  the respondent  had  made  an application for  taking note of the mitigating circumstances in the matter of awarding suitable punishment against him by indicating the  period of  detention as  under trial accused before Court  Martial. He was convicted under Section 307 of the Indian  Penal Code  and  was  awarded  the  sentence  of imorisonment for  only one  year persumaoly  by taking  into consideration, the mitigating circumstances. We may indicate here that  for an  offence under Section 3076  of the Indian Penal Code,  lmprisonment upto  a period of ten years can be given. hence,  we are not inclined to give any direction for monetary comoensation  for long  detention  as  under  trial accused.      Mr.Amrish has  lastly submitted that the respondent had a brilliant  service  record  as  a  member  of  the  Border Security Force.  He had  pariticipated in  Indo-China War in 1962 and  also in  the Indo-Pakistan War in 1971.  Mr. Kumar has submitted  that the  respondent did  not cause injury to the cadet  Raj Kishore  Singh Intentionally,  but as  it has come out inevidence that both the said Raj Kishore Singh and the respondent  Anand Singh  Bisnt were  lntoxicated at  the time of  the incident  and not being in his full senses, the respondent had  fired one  shot from  his rifle injuring the leg of  the said  cadet Raj  Kishore Singh  with whom he was quarelling for  a Long time. We have looked into the records relating to  the Court  Martial proceedings in this Case. It appears from the evidence given by the prosecution withesses in the  Court Martial  that the respondent Anand Singh Bisnt was otherwise  quite friendly  with Raj Kishore. They on the date of  incident started  quarelling. Sri  Anand shouted to the cadet Raj Kishore singh to move away from him and he had also given  warning that otherwise Raj would be shot. It has also come  out in  evidence that  Raj Kishore  Singh did not move away  and even when the rifle was raised with finger on the trigger  Raj Kishore  rather pressed the barrel and them he was  shot at  the leg.  the Officer-in-cnarge of the Camp where the  incident had  taken  place,  in  his  preliminary investigating report  sent to  the commandant  of  the  unit indicated  that   the  Cadet   Raj  Kishore  Singh  and  the respondent were  in best of terms and most likely he did not intend to  shot at him but because of the altercation he had fired one  shot at  the sour of the moment when he must have lost his temper. Considering  the   aforesaid  mitigating   facts  and   also concidering the  fact  that  sri  Anand  had  suffered  long detention  as  undertrial  accused  and  has  also  suffered imprisonment at  the Behrampur  central jail in execution of the sentence for about six months, we feel that justice will be met  if his  sentence is  reduced   to the period already undergone. we order accordingly.      The appeal is accordingly disposed of.