Judgment Case ID: 5548

Judgment:
tition (Criminal) Nos. 225 and 513 of 1987. (Under Article 32 of the Constitution of India). 41 L.K. Pandey for the petitioner in W.P. No.225 of 1987. 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. The Judgment of the Court was delivered by JAGANNATHASHETTY	 J. The petitioners have been convicted and sentenced by the General Court Martial under the . They have been lodged in civil jails. They seek a set off of their pre trial detention against the sentence of imprisonment. The claim has been made under sec. 428 of the Code of Criminal Procedure ("The Code"). The jail and the army authorities have rejected their claim. If sec. 428 of the Code of Criminal Procedure is applicable to the case of the petitioners	 there 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 period of detention	 if any undergone by him during the investigation	 inquiry or trial and before the date of such conviction	 shall be set off against the term of imprisonment and the liability of such person to undergo imprisonment shall be restricted to the remainder	 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 against him. Section 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 jurisdiction or power conferred	 or any special form of procedure prescribed	 by any other law for the time being in force. " 42 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 (lV) any special form of procedure	 prescribed by any other law for the time being in force. The 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 off under sec. 428 of the Code. They have been lodged in the civil prisons by an order made under sec. 169(1) of the . 169(I) provides: " Whenever any sentence of imprisonment is passed under this Act by a court martial or whenever any sentence of death or transportation is commuted to imprisonment	 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 provided 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" Section 167 of the also provides that the term of sentence imposed by a court martial shall be reckoned to commence on the day on which the original proceedings were signed by the presiding officer or by the officer holding the court martial as the case may be. In view of these provisions in the 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 vs The Asstt. Superintendent	 119771 	 the Pun jab & Haryana High Court said that the benefit of sec. 428 can only be claimed by a person whose case is investigated	 inquired into or 43 tried under the Code of Criminal Procedure and it cannot be claimed A by a person convicted and sentenced under the by a courtmartial. The Delhi High Court in F.R. Jesuratnam vs Chief of Air Staff	 [19761 Crl. L.J. 65 and the Madras High Court in P.P. Chandrasekaran vs Government of India	 have also taken the similar view. But the Kerala High Court in Subramonian vs 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.

Summary:
% The petitioners were convicted and sentenced by the General Court Martial under the 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. They moved this Court for relief by writ petitions. Dismissing the petitions	 the Court	 ^ HELD: The petitioners have been convicted and sentenced under the . The is a special enactment containing elaborate procedure for the trial of the persons covered thereunder. In view of the various provisions in the 	 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 set off under sec. The benefit of section 428 cannot be claimed by a person convicted and sentenced by a Court Martial under the 	 as held by the Punjab and Haryana High Court in Bhagwan Singh vs The Asstt. Superintendent	 The High Courts of Delhi and Madras have also held likewise. But in Subramonian vs O.C. Armoured Static Workshop	 contrary view has been taken by the Kerala High Court which cannot be said to have laid down the law correctly. [42G H; 43A C]