Bijaya Chandra Patra vs The Commanding Officer and Others

Manisana, J.—This is a petition relating to set off u/s 482 Code of Criminal Procedure of the prior detention under the army custody before the conviction and sentence under the Army Act.

It is stated in the petition that a general Court-martial, on 16.12.1982, convicted the Petitioner and sentenced him to suffer R.I. for 10 (ten) years under Sections 304 and 326, IPC read with Section 69 of the Army Act. It is also stated in the petition that he was kept in the army custody as under-trial prisoner for a period of 8 (eight) months and one day in connection with the case befors conviction.

The relevant provisions are Sections 167 and 169 of the Army Act and Section 5 of the Code of Criminal Procedure. u/s 167 of the Army Act, the term of sentence of imprisonment awarded by a Court-martial shall be reckoned to commence on the day on which original proceedings were signed by the presiding officer or, in the case of summary Court-martial, by the Court. Section 169 of the Army Act relates to the execution of sentence of imprisonment. u/s 169 of the Army Act, the sentence shall be carried out by confinement in a military prison or a civil prison as provided thereunder. Section 5 of the Code saves special or local laws unless there is any "specific provision to the contrary".

In P.P. Chandrasekhran Vs. The Government of India and Others, the Madras High Court was construing Section 151(1) of the Navy Act, the language of which is substantially the same as that of the Section 167 of the Army Act, and has held that the Navy Act is a special enactment within the meaning of Section 5 of the Code, therefore, the application of the Code is excluded; and that the Navy Act prescribes procedure for trial and execution of sentence and as such, a convict cannot claim the benefit of Section 428 of the Code.

In F.R. Jesuratnam Vs. Chief of Air Staff and Others, the Delhi High Court has also similarly held that where a person is convicted under the Air Force Act and sentenced to imprisonment, the period of pre-detention cannot be set off against the term of the imprisonment. Section 164 of the Air Force Act, Section 167 of the Army Act and Section 151(1) of the Navy Act are in pari materia relating to the same subject matter, namely, commencement of sentence.

The question which arises for consideration is whether Section 428 of the Code will be applicable/extended to the sentence under the Army Act. u/s 4(1) of the Code, all offences under the Indian Penal Code shall be investigated, enquired into, tried, and otherwise dealt with acoording to the provision contained in the Code. u/s 4(2) of the Code all the offences under any law shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Code, but subject to any enactment for the time being in force regulating the manner or place of investigation, enquiring into, or trying or otherwise dealing with such offences.

Section 5 of the Code runs:

Nothing contained in this 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.

(emphasis added)

An analysis of Section 5 of the Code shows that the Code shall govern the matter covered by it. If any special or local law exists covering the same field or area, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any special or local law, the special or local law will prevail. However, the Code will override any special or local law, if there is any "specific provision to the contrary". The specific provision may be in the Code itself.

The next question which arises for consideration is whether Section 428 of the Code is a "specific provision to the contrary". As already stated above the specific provision may be in the Code itself. For example, in Central Talkies v. Dwarka AIR 1961 SC 605, the Supreme Court has held that the provision in Section 10(2) of the Old Code (Section 20(2) of the New Code) is "a specific provision to the contrary" within the meaning of Section 1(2) of the Old Code (Section 5 of the New Code). In that case, the Supreme Court was dealing with the U.P. (Temporary) Control of Rent and Eviction Act. u/s 3 of the U.P. Act, no suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accomodation except on one or more grounds provided thereunder. u/s 2(d) of the U.P. Act, "District Magistrate" includes an officer authorised by the "District Magistrate" to perform any of his functions under the U.P. Act. In that case permission was given by the Additional District Magistrate. The question which arose was whether the permission given by the Additional District Magistrate was vaild or not. u/s 10(2) of the Old Code, an Additional District Magistrate shall have all or any of the powers of the District Magistrate under the Code or any other law as the State Government may direct. In view of Section 10(2) of the Old Code, the Supreme Court has held that the permission was valid and that the provision in Section 10(2) of the Old Code is "a specific provision to the contrary" within the meaning of Section 1(2) of the Old Code, and an Additional District Magistrate must be regarded as possessing the power of District Magistrate under any law including the U.P. Act.

The decision of the Supreme Court above is that although "District Maistrate" has been defined in the U.P. Act differently, Section 10(2) of the Old Code is a specific provision to the contrary within the meaning of section 1(2) of the Old Code. The Army Act does not expressly or impliedly bar the jurisdiction of Criminal Courts in respect of the offences punishable under the Army Act, if they are also punishable under any law in force in India. If such an offence is tried by the ordinary Criminal Court and the accused is sentenced to imprisonment, the accused is entitled to the benefit u/s 428 of the Code. But if the offence is tried under the Army Act and if the accused is not entitled to the benefit of Section 428 of the Code, it will be an unhappy or unfair state of affairs. The objects and reasons for introducing Section 428 of the Code are:

The Committee has noted the distressing fact that in many cases accused persous are kept in prison for very long period as under-trial prisoners and in some case the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as under-trial prisoner. Indeed.

For the foregoing reasons, the Petitioner is entitled to set off u/s 428 of the Code. Accordingly, the petition is allowed. However, the period of detention is to be verified by the jail authority when the occasion arises. With this observation, the petition is disposed of. Let a copy of this order be furnished to the Petitioner.