SOHAN SINGH Vs. GENERAL OFFICER COMMANDING

JUDGEMENT

(1.) In all the above said three Habeas Corpus Writ Petitions, a common question of law placed before the Division Bench arises out of the petitions filed by convicts undergoing sentence imposed on them under the Army Act, 1950 (hereinafter called the Act) on a conviction made by Court Martial. The question raised by the learned Single Judge is as follows: Whether an Army Personnel Tried and sentenced under the Army Act is entitled to the benefit of set off against the sentence of imprisonment under the provisions of section 397-A of the Jammu and Kashmir Code of Criminal Procedure?

(2.) Before discussing the arguments advanced, we feel it necessary to reproduce subsection (2) of Section 1 and Section 397-A of the Jammu and Kashmir Code of Criminal Procedure (hereinafter called the Code): Sub-section (2) of Section 1, (2) Extent. (a) It extends to the whole of Jammu and Kashmir State but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now 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. Section 397.A, which has been inserted by Act No. V of 1976 runs as follows: 397-A. Period of detention undergone by the accused to be set off against the sentence of imprisonment. Where an accused person has on conviction been sentenced to imprisonment for a term, 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: Provided that where an accused person is in detention as an under trial and the Period prescribed under law as the maximum period of sentence for the offence alleged to have been committed by him expires, he shall be entitled to bail The above said provisions of section 397-A of the Code are the same provided by Section 428 of the Criminal Procedure Code applicable throughout India except the State of Jammu and Kashmir. Learned counsel for the petitioners addressed the Court with, reference to the said provision that the convicts undergoing imprisonment in Jail cannot be classified in two categories and to classify them in such a manner so as to deny the benefit of set off as provided by section 397-A of the JAMMU Page4of6 Code will amount to violation of Article 14 of the Constitution of India, as it discriminates between the two types of convicts-one under the General Law and the other under the Army Act. It is also pointed out that to the trials under the Army Act before the Court Martial, the provisions of Evidence Act as well as of the Code are equally made applicable and the proceedings before the court Martial under the provisions of Section 152 of the Act are deemed to be a judicial proceeding and the Court Martial a Court hence no distinction can be made in giving a set off in the period of sentence under the said provisions of the code under reference. A reference is also made to the benefils of remissions under the provisions of Punjab Jail Manual which is applicable to this State which is equally granted to all the convicts undergoing sentence under the Army Act, which bas been upheld by this Court in Single Bench in Habeas Corpus Petition No. 50 of 1984 and in the case of Ex. Havaildar Gh. Mohammad Dar Versus Union of India. In support of his contention, learned counsel for the petitioners also placed his reliance on Mr. Boucher Pierre Andre, Petitioner v. Superintendent, Central Jail Tihar, New Delhi and another, Respondents a Single Bench decision of the Kerala High Court, Subramonian, Petitioner v; Officer Commanding, Armoured Static Workshop, Respondent2 and Bhagirath,- Appellant v. Delhi Administration, Respondent3. In reply learned counsel for the respondents submitted that the offences under the Army Act, which are triable by Court Martial are completely governed by the Act and the Rules made under 5. 191, which is a special Act under which comprehensive procedure for trial and convictions has been provided. The procedure to be followed by a Court Martial is quite elaborate and generally followed the pattern of -the procedure under the Code and under sub rule (1) of Rule 64 of the Army Rules, it is specifically provided that in determining the sentences the court shall take into consideration the conduct of the accused, previous convictions gallantry or distinguish conduct and previous punishments awarded as well as length of time, he bas been in arrest or in confinement on any previous sentence and also that the provisions of the Code being general in nature, they have no over-riding effect over the special Jaw. In support of his contention, Mr. R.P. Sethi learned Standing counsel for the respondents placed his reliance on a Division Bench authority of Madras High Court reported in T.S. Ramani, Petitioner v. The Superintendent of Prisons, Central Jail, Madras and others, Respondents4, their Lordships of Madras High Court have also taken into consideration the authority relied on by the learned counsel for the petitioners of Kerala High Court reported in i 979 Cri. L J. 617 (Supra).

(3.) On hearing the learned counsel for the respective parties at length, on the question formulated herein above mainly beyond on the interpretation, the extent of the Code to the convicts, who are undergoing sentence or who have been under-trial prisoners in prisons. There is no dispute about the fact that Army Personnels, who are tried by Court Martial under the special procedure provided under the Army Act and the Rules made there under during trial remains in the Army custody as against the under-trial prisoners tried under the Code. The answer, therefore, will depend on theapplicabilitv of the convicts under the Army Act by Court Martial. Their Lordships while dealing with the object of enactment of Section 428 by Joint-Committee of the Parliament in A.I.R. 1975 S.C. 164 (Supra) have held as the case before the Court was giving effect of section 428 to a convict, who was sentenced before coming into force of the new Code have found that the benefit of set-oft in view of the objects of the legislation be given to the persons, who was under going sentence at the time when the new code came into force. It was not a case under the Army Act, the objects and reasons of the legislation are also well defined that in many cases accused persons are kept in prison for very long period as under-trial prisoners and that the committee has also noted the overcrowding of jails by under-trial prisoners; whereas same cannot be made applicable to the under-trial prisoners by the Army courts non they are kept in prison prior to their conviction. If the Legislature in its wisdom have not extended this benefit to the convicts in general, we cannot enlarge its scope to such an extent to as to cover even the persons convicted under the Army Act, as the extent of the Code under sub-section (2) of section I save the applicability of any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force That is exactly what had been held by the Madras High Court in 1984 Cri. C.L. 892 (Supra) with which we are fully in agreement. Thus the contention of the learned counsel for the petitioners that the non- application of Section 428, in case of the persons tried under the Army Act is clearly violative of. Article 14 of the Constitution of India is not tenable. Article 33 of the Constitution of India confers power on the Parliament to determine to what extent any of the rights conferred by Part-Ill shall in their application to the members of the Armed Forces, be restricted or abrogate so as to ensure the proper discharge of duties and maintenance of discipline among them. It is, therefore, manifest that a classification with respect to the Armed Forces is a reasonable classification and the law made in accordance with that cannot be said to be discriminatory while interpreting the particular scope of an enactment, their lordships of the Supreme Court in A.I.R. 1954 S.C. 748 have held as follows: The spirit of the law will be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the section of the Act and the rules made there under. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and nature meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be parliament and not to this Court. On a plain reading of sub-section (2) of Section 1 and Section 397-A of the Code, we find that unless a specific provision is made by the Parliament in extending the said provision to the convicts under the Army Act or by providing the same provision in the Act to extend the benefit of set-off in sentence of imprisonment, it cannot be extended to the petitioners, who are convicted under the Army Act in A.I.R. 1985 S.C. 1050 (Supp.) makes a distinction between the set-oft under section 428 and the remissions which are granted under the Jail Manual and with the word term of imprisonment, which is not the question in the present case and as such the same is distinguishable, Their Lordships in A.I.R. 1984 5 C. 1796 (Raghbir Singh, Petitioner v. State of Haryana. Respondent the dealing with section 428 of the Code have held in the following words: Hence in order to secure the benefit of section 428, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which be is later on convicted and sentenced. An under trial under the Army Act as we have discussed above stands on a different footing.