Holding

A person convicted and sentenced by a court‑martial under the Army Act cannot claim the benefit of section 428 of the Code of Criminal Procedure for set‑off of pre‑trial detention.

Summary

The petitioners, convicted by a General Court Martial under the Army Act, 1950 and sentenced to imprisonment, were lodged in civil jails and sought to set off the period of their pre‑trial detention against the term of imprisonment under section 428 of the Code of Criminal Procedure (CrPC). The jail and army authorities rejected the claim, leading the petitioners to file writ petitions under Article 32 of the Constitution. The Supreme Court examined whether section 428, which allows such a set‑off for persons tried under the CrPC, could be invoked when the conviction and sentence arise from a court‑martial governed by the special Army Act. Relying on section 5 of the CrPC, which preserves the applicability of special laws, and on the specific provisions of the Army Act (sections 169(1) and 167) that prescribe the commencement and execution of sentences, the Court held that the petitioners could not claim the benefit of section 428. While they may be eligible for remission under jail manuals, a set‑off is unavailable. The Court dismissed the petitions.

Issues considered

Whether section 428 of the Code of Criminal Procedure applies to persons convicted and sentenced by a court‑martial under the Army Act, 1950
Whether the special provisions of the Army Act override the general provisions of the CrPC regarding set‑off of pre‑trial detention

Legislation cited

Army Act, 1950s. 167, s. 169(1)
Code of Criminal Procedure, 1973s. 428, s. 5

Subjects

set‑offpre‑trial detentionsection 428 CrPCArmy Act 1950court‑martialspecial lawArticle 32remissioncivil jail

Judgment

A AJIT KUMAR, ETC.
v.
UNION OF INDIA AND OTHERS ETC.

B NOVEMBER 25, 1987

[B.C. RAY AND K. JAGANNATHA SHETTY, JJ.]

Plea for a set-off of pre-trial detention against the sentence of
C imprisonment under section 428 of the Cr. P.C.

The petitioners were convicted and sentenced by the General
Court Martial under the Army Act, 1950 and lodged in Civil Jails.
They sought a set-off of their pre-trial detention against the sentence
of imprisonment. The jail and army authorities rejected their claim.
D They moved this Court for relief by writ petitions.
'
Dismissing the petitions, the Court,

HELD: The petitioners have been convicted and sentenced
E under the Army Act. The Army Act is a special enactment containing
elaborate procedure for the trial of the persons covered thereunder. In
view of the various provisions in the Army Act, the petitioners cannot
call into aid section 428 of the Code of Criminal Procedure. They may
be entitled to remissions as provided in the jail manuals but not a
l
)
-
set-off under sec. 428. The benefit of section 428 cannot be claimed by
F a person convicted and sentenced by a Court-Martial under the Army
Act, as held by the Punjab and Haryana High Court in Bhagwan
Singh v. The Asstt. Superintendent, [1977] 79 Punjab Law Journal 19.
The High Courts of Delhi and Madras have also held likewise. But in
Subramanian v. 0. C. Armoured Static Workshop, [1979] Crl. L.J.
617-a contrary view has been taken by the Kerala High Court which
G ca~nnt be said to have laid down the law correctly. l42G-H; 43A-C]

ORIGINAL JURISDICTION: Writ Petition (Criminal) Nos.
225 and 513 of 1987.

(Under Article 32 of the Constitution of India).
H

40
AJIT KUMAR v. U.0.1. [SHETIY, J.] 41
>
L.K. Pandey for the petitioner in W.P. No. 225 of 1987. A

M.S. Gupta for the petitioner in W.P. No. 513 of 1987.

Dalveer Bhandari, Ms. A. Subhashini and Mrs. C.K. Sucharita
for the Respondents. B
-{
The Judgment of the Court was delivered by

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.

D
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
term (not being imprisonment in default of payment of fine), the
r 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:
~
G
"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
42 SUPREME COURT REPORTS [1988] 2 S.C.R.

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.
B
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-
D 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
E 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
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.

y

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