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,
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.
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-
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
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.
(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
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
