LexAJIT KUMAR, ETC. versus UNION OF INDIA AND OTHERS ETC.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
AJIT KUMAR, ETC.
v.
UNION OF INDIA AND OTHERS ETC.
B
NOVEMBER 25, 1987
[B.C. RAY AND K. JAGANNATHA SHETTY, JJ.]
Plea for a set-off of pre-trial detention against the sentence of
C imprisonment under section 428 of the Cr. P.C.
The petitioners were convicted and sentenced by the General
Court Martial under the Army Act, 1950 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.
D They moved this Court for relief by writ petitions.
Dismissing the petitions, the Court,
HELD: The petitioners have been convicted and sentenced
E
under the Army Act. The Army Act is a special enactment containing
elaborate procedure for the trial of the persons covered thereunder. In
view of the various provisions in the Army Act, 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. 428. The benefit of section 428 cannot be claimed by
F
a person convicted and sentenced by a Court-Martial under the Army
Act, as held by the Punjab and Haryana High Court in Bhagwan
Singh v. The Asstt. Superintendent, [1977] 79 Punjab Law Journal 19.
The High Courts of Delhi and Madras have also held likewise. But in
Subramanian v. 0. C. Armoured Static Workshop, [1979] Crl. L.J.
617-a contrary view has been taken by the Kerala High Court which
G
ca~nnt be said to have laid down the law correctly. l42G-H; 43A-C]
H
ORIGINAL JURISDICTION: Writ Petition (Criminal) Nos.
225 and 513 of 1987.
(Under Article 32 of the Constitution of India).
40
'
-
l
)
AJIT KUMAR v. U.0.1. [SHETIY, J.]
41
>
L.K. Pandey for the petitioner in W.P. No. 225 of 1987.
A
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.
B
-{
The Judgment of the Court was delivered by
~.
JAGANNATHA SHETTY, J. The petitioners have been convic-
ted and sentenced by the General Court Martial under the Army
'
Act, 1950. They have been lodged in civil jails. They seek a set off c
\.
of their pre-trial detention against the sentence of imprisonment. The
claim has been made under sec. 428 of the Code of Criminal Proce-
dure ("The Code"). The jail and the army authorities have rejected
their claim.
D
1
If sec. 428 of the Code of Criminal Procedure is applicable to
the case of the petitioners, then: 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
r
term (not being imprisonment in default of payment of fine), the
period of detention, if any undergone by him during the investiga-
E
tion, inquiry or trial and before the date of such conviction, shall be
set off against the term of imprisonment and the liability of such
t
person to undergo imprisonment shall be restricted to the remainder,
c
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 agajnst him. Section
F
y
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:
~
G
"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 juris-
diction or power conferred, or any special form of proce-
dure prescribed, by any other law for the time being in
force."
H
42
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A 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 (IV) any special form of procedure,
prescribed by any other law for the time being in force. The Army
Act, 1950 is a special enactment applicable to persons covered under
sec. 2 thereof. It also provides special procedure for court martial.
B
The learned counsel for the petitioner however, submitted that
since the petitioners are lodged in the civil prisons, they are entitled
to thExcerpt shown. Read the full judgment & AI analysis in Lexace.