Holding

Section 428 of the Criminal Procedure Code does not apply to convicts sentenced by a Court‑Martial under the Army Act (or the Navy/Air Force Acts).

Summary

The appellants, convicted by a General Court‑Martial under the Army Act, sought the benefit of Section 428 of the Criminal Procedure Code (CrPC) which allows set‑off of detention time during investigation, inquiry or trial against the term of imprisonment. The Supreme Court examined whether the CrPC provisions apply to Court‑Martial proceedings, considering Section 5 of the CrPC which excludes its application where a special law governs, and the specific provisions of the Army Act, particularly Section 167 which fixes the commencement of a sentence. The Court held that the Army Act (and the analogous Navy and Air Force Acts) are comprehensive special statutes that wholly govern Court‑Martial procedures, rendering Section 428 inapplicable. It further noted that Section 475 of the CrPC distinguishes Court‑Martial from courts to which the Code applies, confirming Parliament's intention. Consequently, the appeals were dismissed.

Issues considered

The applicability of Section 428 of the CrPC to persons sentenced to imprisonment by a Court‑Martial under the Army Act.
Whether Section 5 of the CrPC excludes the Code's provisions in the presence of a special law like the Army Act.
Whether the Army Act is silent on the date from which imprisonment commences, thereby invoking CrPC provisions.

Legislation cited

Air Force Act, 1950
Army Act, 1950s. 167
Code of Criminal Procedure, 1973s. 2(g), s. 2(h), s. 428, s. 475, s. 5
Navy Act, 1957

Subjects

Criminal Procedure CodeSection 428set‑offCourt‑MartialArmy Actspecial lawmilitary lawimprisonment commencementjurisdiction

Judgment

AJMER SINGH ETC. ETC.
A
V.
UNION OF INDIA & ORS.

APRIL 29, 1987

B [A.P. SEN AND V. BALAKRISHNA ERADI, JJ.]

Code of Criminal Procedure, 1973: s. 428-Applicability of to
proceedings before the Court-Martial under the Army Act. -'

Section 167 ol' the Army Act, 1950 provides that whenever a
C 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 Otlicer. Section 5 of
the Code of Criminal Procedure 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,
D force. Section 428 of the Code provides for set off of the period of
detention undergone by an accusell 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 Magis-
E !rate shall in proper cases deliver him together with a statement of the
offence, of which he is accused, to the commanding ot)icer 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
F of imprisonment. Their petitions claiming grant of benefit of the provi-
sion for set off contained in s. 428 of the Code having been dismissed by
the High Court they preferred 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
G respect to the topic as to the date with effect from which the period of
imprisonment covered by the sentence 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.

H Dismissing the appeals, the Court,
8-l
AJMER SINGH v. U.O.I. 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 per- A
sons convicted and sentenced by Court-Martial to undergo imprison-
ment. 91F]

2. The Army Act, the Navy Act and the Air Force Act constitute
special laws in force conferrin2 special jurisdiction and powers on B
Courts-Martial. They embody a completely self-contained comprehen-
sive code specifying the various offences and prescribing the procedure
for detention, custody, investigation and trial of the oftenders, 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 C
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 D
which the original proceedings were signed by the Presiding Officer.
r In the !'ace of this categorical 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 sentence is to be
reckoned.[88G; 89AB]
E
- 4. The distinction made ins. 475 of the Code between "trial by a
i.- Court to which this Code applies" and by a Court-Martial' conclu-
sively indicates that Parliament intended to treat the Court-Martial as
a forum to the proceedings before which the provisions of the Code will
--r have no application. [90F]
F
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 'investiga-
tion' 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 G
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 H
the Act. [90G; 910; E; 89C]
86 SUPREME COURT REPORTS (1987( 3 S.C.R.

A 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.
•
Subramqnian v. Officer Commanding Armoured Static Work-
B shop, (1979] Cri. L.J. 617.and Anand Singh Bishit v. Union of India &
Ors., (1986] Cri. L.J. 563, overruled. ~

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal ~
No. 532 of 1976. etc.
~

'
From the Judgment and Order dated 9.2.1976 of the Punjab and
c Haryana High Court in Cr!. Writ No. 131 of 1975.

Baldev Atrey, K.B. Rohtagi, R.A. Gupta, V.K. Jain, S.K. Gupta ·""'
and C.S. Vaidyanathan for the Appellant.

D M.S. Rao, R.S. Sodhi, B. Parthasarathi and Ms. A. Subhashini
for the Respondents.
'f
The Judgment of the Court was delivered by

BALAKRISHNA ERADI, J. These four appeals have been filed
E against judgments of the High Court of Punjab and Haryana rejecting
the claims of the appellants who have been convicted 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-
F 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 con-
cerns the applicability of Section 428 of the Code of Criminal Proce-
G <lure to persons sentenced to undergo imprisonment by General
-~-
Court-Martial under the Army Act. The position under the Army Act
will equally govern persons sentenced to undergo imprisonment by
Court-Martial under the Navy Act and the Air Force Act.

In the judgments under appeal, the High Court has followed an
H earlier ruling of a Division Bench of the same High Court in Ram

".
AJMER SINGH v. U.0.1. [ERADJ. J.J 87

-} Labhaya Sharma v. Union of India and Others, in Criminal Writ A
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 a~d sentenced by
Court-Martial.

There is a divergence of views between different High Courts on B
~ 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 court-
~ martial 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
c
.l. 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 D
Static Workshop, [1979] Cri. L.J. 617 and the said decision was refer-
)" red 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 Crimi-
nal Procedure and the Army Act (as well as the corresponding provi-
sions 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-
E

I Martial.
F
Section 5 of the Code qf Criminal Procedure lays down that
nothing contained in the said 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 jurisaiction 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 G
-\- and the Air Force Act embody a completely self-contained compre-
hensive Code specifying the various offences under those Acts and
prescribing the procedure for detention and custody of offenders, in-
vestigation and trial of the offenders by Court-Martial, the punish-
ments to be awarded for the various offences, confirmation and revi-
sion of the sentences imposed by Court-Martial, the execution of such H
88 SUPREME COURT REPORTS [1987] 3 S.C.R.

A sentences and the grant of pardons, remissions and suspensions in ~l
respect of such sentences. These enactments, therefore, 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
B Procedure inapplicable in respect of all matters covered.by such spe-
cial law. Since in the four cases before us we are concerned with
convictions by General Court-Martial under the provisions of the
Army Act, we shall refer specifically to the relevant provisions con-
tained in the Army Act (hereinafter called the 'Act').

Sections 34 to 68 contained in Chapter VI of the Act specify the
c different categories of offences under the Act including abetment of
-
offences under the Act. Chapter VII of the Act which comprises Sec-
tions 71 to 89 of the Act deals with the punishments awardable by
Court-Martial in respect of the different offences. Sections IOI to 107
contained i.1 Chapter IX of the Act deal with the arrest and custody of
D 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 con-
E tains provisions relating to confirmation and revision of the findings
entered and sentences imposed by the different categories of court-
martial. Sections 166 to 176 contained in Chapter XIII deal with the
execution of sentences and the establishment and regulation of mili-
tary prisons etc. The subject of granting pardons, remissions and
suspensions of sentences is dealt with in Sections 179 to 190 comprised
F in Chapter XIV of the Act. Thus we find that the Act contains elabo-
rate and comprehensive provisions dealing with all the stages com-
mencing from the investigation of offences and the apprehension and
detention of offenders and terminating with the execution of sentences
and the grant of remissions. suspensions etc.

G Section 167 of the Act specifically lays down that whenever a
person is sentenced by a Court-Martial under the Act to imprison- ~-
ment, the term of his sentence shall, whether it has been revised or
not, be reckoned to commence on the day on which the original pro-
ceedings were signed by the Presiding Officer or, in the case of a
summary Court-Martial, by the Court. In the face of this categorical
H provision laying down that the sentence of imprisonment shall be
AJMER SINGH v. U.0.1. (ERADI, J.( 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
A
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 B
~ Criminal Procedure only lays down that nothing in the Code shall
"affect" any special or local law and hence in the absence of any
i 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 commence-
c
)._ . ment 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 D
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
applicability of the Code in respect of prnceedings under any special or
local law or any special jurisdiction or form of procedure prescribed by
any other law. Whatever doubt might otherwise have existed on this E
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 F
be tried by Court-martial-( 1) The Central Government
may make mies 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 mili- G
-}.. tary, naval or air force law, or such other law, shall be
tried by a Court to which this Code applies or by a Court-
martial; and when any person is brought before a Magis-
trate and charged with an offence for which he is liable to
be tried either by a Courfto which this Code applies or by a
Court-martial, such Magistrate shall have regard to such H

. 111
90 SUPREME COURT REPORTS (1987] 3 S.C.R.

rules, and shall in proper cases deliver him, together with a
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.
B
Explanation-In this section-

(a) "unit" includes a regiment, corps, ship, detachment, ·~
group, battalion or company,

c (b) "Court-martial" includes any tribunal 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 applica-
D tion for that purpose by the commanding officer of any unit
or body of soldiers, sailors or airmen stationed or emp-
loyed at any such place, use his utmost endeavours to
apprehend and secure any person accused of such offence.

(3) A High Court may, if it thinks fit, direct that a prisoner
E 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
F Parliament intended to treat the Court-Martial as a forum to the
proceedings before which the provisions of the Code will have no appli-
cation.

Further, there is also intrinsic indication contained in the very
wording of Section 428 of the Code of Criminal Procedure that the
G 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
H imprisonment for a term, not being imprisonment in

---
AJMER SINGH v. U.0.1. [ERADI, J.] 91

default of payment of fine, the period of detention, if any, A
-+- 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 imprisonment, imposed
on him on such conviction, and the liability of such person
to undergo imprisonment on such conviction shall be
restricted to the remainder, if any, of the term of imprison- B
\ ment imposed on him."
-!-
The section provides for set off of the period of detention under-
~ gone by an accused person during "the investigation, inquiry or trial" of

- the same case before the date of conviction. The expression "investi-
gation" has been defined in Section 2(h) of the Code as follows:
c
"2.(h) "investigation" includes all the proceedings 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."
D
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 autho-
rised 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, con- E
ducted under this Code by a Magistrate or Court." No inquiry is
...--- 1 conducted under the Code by any Magistrate 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
l Act. Such being the position, the provision for set off contained in F
Section 428 of the Code of Criminal Procedure can never be attracted
in the ~ase 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 G
-). 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 H
92 SUPREME COURT REPORTS [1987] 3 S.C.R.

A 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
B 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.

C P.S.S. Appeals dismissed. -

.)-
'