Case: Ajmer Singh Etc. Etc Vs. Union Of India &amp; Ors

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 Court-martial; 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 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, naval or air force station, as the case may be, for the purpose of being tried by Court-martial.Explanation - In this section -(a) "unit" includes a regiment, corps, ship, detachment, group, battalion or company.(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 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 (sic which) the provisions of the Code will have no application." 11. 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 as accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in 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 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 imprisonment imposed on him." 12. The section provides for set off of the period of detention undergone by an accused person during "the investigation, inquiry of trial" of the same case before the date of conviction. The expression "investigation" has been defined in the Section 2(h) of the Code as follows: "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." 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. 13. 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 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 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. 14. In the light of the foregoing discussion we uphold as correct the view taken by the High Court of Punjab and Haryana in the Judgment 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. 15. The decision in Subramanian v. Officer Commanding, Armoured Static Workshop (1979 Cri LJ 617 (Ker)) 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 (1986 Cri LJ 563 (Cal)) 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. 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 applicability of the Code in respect of proceedings 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 point is totally set at rest by section 475 of theCode 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.In the light of the foregoing discussion we uphold as correct the view taken by the High Court of Punjab and Haryana in the Judgment 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 theCode of Criminal Procedure cannot be claimed by persons tried and sentenced by theThe decision in Subramanian v. Officer Commanding, Armoured Static Workshop (1979 Cri LJ 617 (Ker)) 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 (1986 Cri LJ 563 (Cal)) 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