Mukand Singh, Ex-Sepoy vs Union of India

K.K. Srivastava, J.

Criminal Writ Petition No. 257 of 1995 and Criminal Writ PEtition No. 277 of 1995 are being disposed of by this judgment as they involve common question of law for decision regarding the premature release of the petitioners in the respective writ petitions.

The petitionerMukand Singh was tried by a General Court Martial for an offence under Section 302, Indian Penal Code and convicted thereunder vide order dated November 13, 1981. The following sentences were awarded to the petitionerMukand Singh :

(a) to suffer life imprisonment; and

(b) to be dismissed from the service.

This petitioner is at present lodged in Central Jail, Bhatinda. He has claimed his premature release on the ground that he had completed 13 years, 4 months and 12 days of actual imprisonment till the date of the petition which was filed on March 27, 1995. For disposal of these writ petitions, facts are being taken from Criminal Writ Petition No. 277 of 1995.

The petitionerAjit Kumar, ExSepoy, was tried by a General Court Martial under the Army Act (hereinafter referred to as ''the Act'') for committing a civil offence i.e. to say murder punishable under Section 302, Indian Penal Code, at field on the night intervening 2nd/3rd November, 1982. He was awarded the following sentence :

(a) to suffer imprisonment for life; and

(b) to be dismissed from the service.

He was committed to the District Jail, Tejpur on July 10, 1984, to serve out the sentence awarded to him and the sentence had the effect from April 11, 1984, vide Annexure ''P1'' to the writ petition. Later on, the convict/petitionerAjit Kumar was transferred to Central Jail, Amritsar, where he is undergoing the imprisonment.

The petitionerAjit Kumar has moved this petition under Article 226 of the Constitution praying that a writ of habeas corpus be issued directing the respondents to immediately release him as he has already undergone the sentence awarded to him under law.

The contention of the petitioner is that he had undergone 15 years and 9 months till the date of filing of the petition which was filed on April 3, 1995. The aforesaid period of 15 years and 9 months comprises of the following :

Years Months days

(a) Period spent in custody before trial 1 5 9

(b) Actual sentence undergone 10 11 21

(c) Remission earned 3 4 00

Total 15 9 00

The aforesaid description will go to show that the petitioner spent 1 year, 5 months and 9 days in custody during trial and after conviction he has suffered actual sentence of 10 years, 11 months and 21 days. Apart from these two sufference of sentences, the petitioner has claimed remission of 3 years and 4 months.

According to the averments made in the petition, Section 169 ''A'' of the Amended Act now clearly provides that the period spent by a person awarded sentence by the Court Martial, in civil or military custody, during investigation shall be set off against the term of imprisonment imposed upon him. The liability of such a person shall be restricted to the remainder, if any, of the term of imprisonment imposed upon him. It has further been contended that the Amended Army Act has retrospective effect as desired in letter dated November 25, 1994 (Annexure ''P2'') and the same is applicable to the petitioner. Consequently, it has been submitted that in view of the said provision of Section 169 ''A'', the period of pretrial custody of the petitioner is to be set off against the sentence of life imprisonment. The petitioner has also alleged that his detention in military custody beyond 3 months without the approval of the Central Government is illegal. He has contended that in his case, no such approval was ever taken. The detention of the petitioner, it is alleged, for a period of 1 year, 2 months and 9 days is without the authority of law.

The petitioner has claimed that he has earned remissions as per Jail Manual for a period of 3 years and 4 months and he is entitled to claim the remissions as per Jail Manual.

The petitioner approached for his premature release before the Army Authorities vide letter Annexure ''P4''. The petitioner was informed by the Army Authorities vide letter Annexure ''P5 that his case would be reviewed in June, 1988. Thereafter, the petitioner approached the Superintendent of Central Jail, Amritsar, for his premature release vide letter dated February 7, 1995 (copy Annexure ''P6''). The Deputy Superintendent of Central Jail, Amritsar, has attested the letter of the petitioner stating therein that the petitioner had undergone 14 years, 2 months and 5 days sentence till February 16, 1995, vide Annexure ''P7''. The Deputy Superintendent, aforesaid, excluded the period spent in custody during the trial of the petitioner. The petitioner has alleged that the General Officer Commanding, 15 Infantry Division, Amritsar, is also the Prescribed Officer under the Military Law to grant remission and pardon to military personnel undergoing sentence there. The said authority has been impleaded as respondent No. 3 in this writ petition.

The petitioner has further submitted that despite the fact that he has been dismissed from service vide Annexure ''P1'', he would still be subject to the Army Act by virtue of Section 123(3) of the Act which provides as under :

"123. Liability of offender who ceases to be subject to Act.

(1) xx xx xx

(2) xx xx xx

(3) When a person subject to this Act is sentenced by a Court Martial to transportation or imprisonment, this Act shall apply to him during the term of sentence, though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act, and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act."

The petitioner has claimed the benefit of Section 169 ''A'' of the Act on the basis that he will still be treated as governed by the Army Act by virtue of Section 123(3), aforesaid.

Notice of motion was issued to the respondents. The respondents were served and Mr. R.S. Surjewala, Advocate, put in appearance on behalf of the respondents. The respondents did not file a written statement to the petition, but the learned counsel appearing for the respondents verbally opposed the writ petition and, inter alia, contended that the petitioner cannot be released prematurely without undergoing the actual 14 years sentence. He has contended that Section 433A of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') imposed restriction on powers of remission or communication in certain cases. Section 433A of the Code provides as under :

"433A. Restriction on powers of remission or commutation in certain cases Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment."

The contention of the learned counsel for the respondents is that, in the instant case, the petitioner has been convicted under Section 302, Indian Penal Code, which provides the sentence of death also apart from imprisonment for life. Section 433A of the Code is applicable where sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law. The contention of the learned counsel for the respondents is that the validity of Section 433A of the Code was considered by the Supreme Court in the case of Maru Ram v. Union of India, AIR 1980 Supreme Court 2147 and it was held that the provision of Section 433A of the Code, which was inserted by Amendment Act of 1978 were intra vires of the legislative competence of the Parliament. The Supreme Court upheld the constitutional validity of Section 433A of the Code and held that the said Section was prospective. It was held that every person, who has been convicted by the sentencing Court before December 18, 1978, shall be entitled to the benefits accruing to him from the remission scheme or short sentencing schemes, as if Section 433A of the Code did not stand in his way. The Section, aforesaid, will apply to such persons who have been convicted and sentenced by the sentencing Court on December 18, 1978 and thereafter.

The Supreme Court in the later authority reported as State of Andhra Pradesh and others v. G.M. Moray, AIR 1982 Supreme Court 1195, following the authority of Maru Ram''s case (supra), held that the object of Section 433A of the Code is that those governed by it shall not be released unless they have served a sentence of at least 14 years imprisonment. In that case, the Supreme Court did not extend the benefit of the order issued by the Government of Andhra Pradesh to those persons who were governed by Section 433A of the Code.

The next authority cited by the learned counsel for the respondents in support of his contention is Ashok Kumar alias Golu v. Union of India and others, 1991(2) Recent Criminal Reports 654 : AIR 1991 Supreme Court 1792 . In the said case, the Supreme Court held that the language of Section 433A of the Code is clear and unambiguous and does not call for extrinsic aid for its interpretation.

In view of the aforesaid authorities, the learned counsel for the respondents contended that the constitutional validity of Section 433A of the Code has been upheld and it has been categorically and clearly laid down by the Apex Court that the provisions of Section 433A of the Code shall apply prospectively i.e. in respect of the persons who have been convicted and sentenced by the sentencing Court on December 18, 1978 and thereafter. The contention of the learned counsel for the respondents is that, in the instant cases, the petitioners Mukand Singh and Ajit Kumar were convicted and sentenced on November 13, 1981 and July 10, 1984, respectively. The said dates are subsequent to December 18, 1978 and, therefore, the provisions of Section 433A of the Code are applicable to the petitioners and, consequently, the petitioners cannot be prematurely released till they undergo actual sentence of 14 years as provided by Section 433A of the Code.

The learned counsel for the petitioners, on the other hand, contended that the case of the petitioners is categorically covered by Section 169 ''A'' of the Army Act and the instructions issued by the Army Authorities thereunder. The case of the petitioners will not be governed by the provisions of Section 433A of the Code. The learned counsel for the petitioners has relied on a judgment of Single Bench of this Court delivered on November 14, 1994 in the case of Avtar Singh, ExSepoy v. Union of India. The learned Single Judge took the view that the period of pretrial detention is to be counted towards sentence. The learned Single Judge took notice of letter dated November 26, 1993, issued by the Army Headquarters clarifying that benefit of set off would be available to a convict who has been awarded the sentence of imprisonment either before or after the new law came into force. The learned Single Judge, consequently, disposed of the petition with the direction to the respondents to consider the case of the petitioner in terms of the aforesaid letter issued by the Army Headquarters within a period of four weeks.

It is not disputed that the petitioners were tried for an offence of murder under Section 302, Indian Penal Code by a General Court Martial and sentenced to imprisonment for life. Apart from this sentence of imprisonment for life, they were also ordered to be dismissed from service. It is relevant to note that Section 302, Indian Penal Code provides punishment for murder and lays down that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. It is, thus, clear that under Section 302, Indian Penal Code, there is sentence of death provided apart from imprisonment for life. Section 433A of the Code, reproduced above, is applicable to the persons who have been convicted under Section 302, Indian Penal Code, which provides death as one of the punishments.

By virtue of Section 123(3) of the Army Act, a person subject to the said Act, who has been sentenced by a Court Martial to life imprisonment or any term of imprisonment, is governed by the Army Act during the term of his sentence though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act. Under the provisions of Section 169 ''A'' of the Army Act, a person or an officer governed by the Army Act, who has been sentenced by a Court Martial to a term of imprisonment, not being an imprisonment in default of payment of fine, the period spent by him in civil or military custody during investigation, inquiry or trial of the same case and before the date of order of such sentence, shall be set off against the term of imprisonment imposed upon him. The said section further provides that the liability of such person to undergo imprisonment on such order of sentence shall be restricted to the remainder, if any, term of imprisonment imposed upon him. The provisions of Section 169 ''A'' of the Army Act were applied retrospectively vide letter dated November 25, 1964 (Annexure ''P2''). The learned counsel for the petitioner has submitted that in view of the provisions of Section 169 ''A'' of the Army Act, the petitioners in these cases are entitled to the set off of the period which they spent during investigation or trial and after setting off the same, the period of sentence undergone by them is to be considered. In other words, the submission of the learned counsel for the petitioners is that while commutating the actual period of sentence undergone by the convicts for purposes of premature release, the period during which such persons remained in custody during trial, is to be set off. The learned counsel for the respondents, on the other hand, opposed the said submission of the learned counsel for the petitioners and contended that the provisions of Section 433A of the Code are to be strictly complied with and before a convict becomes entitled to seek his premature release, he has to serve out actual 14 years of imprisonment. He has contended that the remissions in sentences have not been held applicable while considering the provisions of Section 433A of the Code.

The Supreme Court considered this matter of remission and set of period of detention as undertrial with reference to the provisions of Section 433A of the Code in Ashok Kumar alias Golu''s case (supra) and observed as under :

"12. It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under Section 432, in which case the remission would be subject to limitation of Section 433A of the Code, or constitutional power has been exercised under Article 72/161 of the Constitution. In Bhagirath''s case (AIR 1985 SC 1050) the question which the Constitution Bench was required to consider was whether a person sentenced to imprisonment for life can claim the benefit of Section 428 of the Code which, inter alia, provides for setting off the period of detention undergone by the accused as an undertrial against the sentence of imprisonment ultimately awarded to him. Referring to Section 57, I.P.C. the Constitution Bench reiterated the legal position as under (at p. 1053, para 9 of AIR) :

"The provision contained in Section 57 that imprisonment for life has to be reckoned as equivalent to imprisonment for 20 years is for the purpose of calculating fractions of terms of punishment. We cannot press that provision into service for wider purpose."

"These observations are consistent with the ratio laid down in Godse (AIR 1961 SC 600) and Maru Ram''s cases (AIR 1980 SC 2147). Coming next to the question of set off under Section 428 of the Code, this Court held (at p. 1053, Para 11 of AIR) :

"The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under Section 432 or Section 433 of the Code. In the absence of such order, passed generally or specially, and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse, imprisonment for the remainder of life."

"We fail to see any departure from the ratio of Godse''s case; on the contrary the aforequoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appeal/writ petition. The Court directed that that period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in Section 433A and, ''provided'' that orders have been passed by the appropriate authority under Section 432 of the Code of Criminal Procedure. These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as undertrial would enure to the benefit of the convict provided the appropriate Government has chosen to pass an order under Section 432/433 of the Code. The ratio of Bhagirath''s case, therefore, does not run counter to the ratio of this Court in the case of Godse or Maru Ram."

It would be seen that no order for remission of sentence in respect of the petitioners in these cases has been passed under Section 432 of the Code. Even if any such order for remission has been passed, such an order would be subject to limitation of Section 433A of the Code. Section 433A of the Code commences with a nonobstante clause, i.e. notwithstanding anything contained in Section 432 of the Code ...... The Supreme Court had earlier considered this matter of remission in G.M. Moray''s case (supra) and it was held that the object of Section 433A of the Code is that those governed by it shall not be released unless they have served a sentence of at least 14 years imprisonment. In that case, the orders issued by the Andhra Pradesh government regarding remissions were not held applicable to persons governed by Section 433A of the Code.

In view of the settled law, as mentioned above, the position of law is crystal clear. Both the petitioners are governed by the provisions of Section 433A of the Code and, therefore, none of the petitioners is entitled to pray for premature release till they actually undergo sentence of 14 years. In none of the two cases, the petitioner has undergone 14 years actual sentence after the sentencing order was passed. Resultantly, both the writ petitions have no force and they deserve to be dismissed. Accordingly, both the writ petitions fail and are dismissed.