UNION OF INDIA Vs. ANAND SINGH BISHT

JUDGEMENT

(1.) The judgment dated 30th September, 1985 passed by Division Bench of the Calcutta High Court in Criminal Misc. case No. 1072 of 1985 arising out of a writ petition for a writ of habeas corpus made by the respondent Anand Singh Bisht is under challenge in this appeal. Anand Singh Bisht was a Naik in the Border Security Force. For injuring one cadet Raj Kishore Singh, he was tried under the Border Security Force Act, 1968 and was convicted for the offence under Section 307 of the Indian Penal Code and was sentenced to suffer one years rigorous imprisonment. In execution of such sentence, he was lodged in the Bernampur Central jail. The respondent Anand Singh Brisht moved the habeas corpus petition before the Calcutta High Court inter alia contending that he had undergone pre-trial detention by the Border Security Force authorities for about one year, he was entitled to set off his sentence of one years rigorous imprisonment under Section 428 of the code of Criminal Procedure and he should therefore, be forthwith released from detention. By the impugned judgment, the High Court came to the finding that the beneficial provision of Section 428 of the Code of Criminal Procedure is applicable in the case of the respondent even though he was tried by a court martial under the Border Security Force Act and Section 5 of the Code of Criminal Procedure has not taken away such benefit. Accordingly, an order was passed on 30th September, 1985 to release the respondent from detention. Against the said decision of the High Court of Calcutta, the Union of India has preferred the instant appeal.

(2.) It appears that on the question as to whether the benefit of Section 428 of the Criminal Procedure Code providing for set off the period of detention undergone by an accused person during investigation, inquiry or trial against the term of imprisonment is applicable when an army personnel is convicted by the Court Martial under the Army Act, the High Courts gave different decisions. One of such decisions came up for consideration before this Court in Ajmer Singh v. Union of India. The decision rendered by this Court in the said case is reported in (1987) 3 SCR 84. The decision of the Calcutta High Court passed in the said habeas corpus petition concerning the respondent, Anand Singh Bisht was also cited before this Court in Ajmer Singhs case (supra). In Ajmer Singhs case this Court has held that the provision for set off contained in Section 428 of the Code of Criminal Procedure is not attracted in the case of persons convicted and sentenced by Court Martial under the Army Act, It has been indicated by this Court that the Army Act, the Navy Act and the Air Force Act constitute special laws in force conferring special jurisdiction and powers on Courts Martial. They embody a completely self-contained comprehensive code specifying the various offences and prescribing the procedure for detention, custody, investigation and trial of the offenders, the punishment to be awarded, confirmation and revision of the sentences to be 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 matters covered by such special law. It has also been indicated in the said decision that the distinction made in Section 475 of the Code 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 which the provisions of the Code will have no application. It has also been held in the said decision that there is also intrinsic indication contained in the very wording of Section 428 of the Code that it cannot have any application in respect of persons tried and sentenced by Court Martial. There is no investigation conducted by any police officer under the Code or by any persons 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 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 Section 428 of the Code of Criminal Procedure in respect of prisoners convicted by Court Martial under the Act, The decision of the Calcutta High Court rendered in the case of the respondent Anand Singh Bisht was expressly overruled in the said decision of Ajmer Singhs case (supra). We may indicate here that the decision made in Ajmer Singh case (supra) has subsequently been followed by this Court in the case of Ajit Kumar v. Union of India, (1988) 2 SCR 40 and Bhuwneshwar Singh v. Union of India, (1993) 4 SCC 327 . This appeal, therefore, should be dismissed.

(3.) Mr. Amrish Kumar, the learned Counsel appearing for the respondent has however submitted before us that admittedly the respondent had undergone pre-trial detention for almost one year and even though he is not entitled to set off under Section 428 of the Criminal Procedure Code, as held by this Court, he is entitled to get compensation for such long detention at the pretrial stage. In support of such contention, he has relied on the decision of this Court in Bhuwaneshwar Singhs case (supra), Bhuwaneshwar Singh was tried by the Court Martial under the Army Act and was convicted by the Court Martial, but he was detained for more than three months as under-trial prisoner by the Army Authorities in violation of the mandate under Rule 27 of the Rules framed under the Army Act and Rs. 1,000/- was awarded by the trial Court as compensation for such detention beyond the period of three months without taking the approval of the Central Government under Rule 27 for keeping the under-trial in detention exceeding three months. Considering the inadequacy of such compensation of Rs. 1,000/-, this Court enhanced such compensation in Bhuwneshwar Singhs case (supra)