Ajit Kumar, Etc. v. Union of India and Others Etc.

~. JAGANNATHA SHETTY, J. The petitioners have been convic- ted and sentenced by the General Court Martial under the Army ' Act, 1950. They have been lodged in civil jails. They seek a set off c \. of their pre-trial detention against the sentence of imprisonment. The claim has been made under sec. 428 of the Code of Criminal Proce- dure ("The Code"). The jail and the army authorities have rejected their claim. 1 If sec. 428 of the Code of Criminal Procedure is applicable to the case of the petitioners, then: 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 r term (not being imprisonment in default of payment of fine), the period of detention, if any undergone by him during the investiga- E tion, inquiry or trial and before the date of such conviction, shall be set off against the term of imprisonment and the liability of such t person to undergo imprisonment shall be restricted to the remainder, c 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 agajnst him. Section F y 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 juris- diction or power conferred, or any special form of proce- dure prescribed, by any other law for the time being in force." H A 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 (IV) 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 C off under sec. 428 of the Code. They have been lodged in the civil prisons by an order made under sec. 169( I) of the Army Act. Sec. 169(1) provides: " Whenever any sentence of imprisonment is passed under this Act by a court-martial or whenever any sen­ tence of death or transportation is commuted to imprison­ ment, 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 pro­ vided 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" F Section 167 of the Army Act also provides that the term of sen- tence imposed by a court-martial shall be reckoned to commence on the day on which the original proceedings were signed by the presid­ ing officer or by the officer holding the court martial as the case may be. G 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, [1977] 79 Punjal;J Law Journal 19, the Pun­ jab & Haryana High Court said that the benefit of sec. 428 can only H be claimed by a person whose case is investigated, inquired into or \· / .. - . ). y , j \ I AJIT KUMAR v. U.0.1. [SHE1TY, J.) 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 court­ martial. The Delhi Higli Court in F.R. Jesuratnam v. Chief of Air Staff, (1976] Crl. L.J. 65 and the Madras High Court in P.P. Chandraseka- B TfJn 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.