LexUNION OF INDIA AND ORS. versus ANAND SINGH BISHT
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A B UNION OF INDIA AND ORS. v. ANAND SINGH BISHT AUGUST 28, 1996 [G.N. RAY AND B.L. HANSARIA, JJ.) Border Seciuity Force Act, 1968 & Rules/Code of Criminal Procedure, 1973: C Rule 39/Sections 5, 428--Border Security Force/Naik injuring a cadet-Tlied under Border Seculity Force Act and convicted for an offence under S. 307 IPC and Sentenced to one year R.1.-Approaching High Court for set off under Section 428 Cr.P.C. of one year R.I, against pre-trial detention-High Court ordeling his release from detention-On appeal, held D there is absolutely no scope for invoking the aid of S. 428 Cr.P. C. in respect of plisoners convicted by Cowt Ma1tial-In the facts of the case sentence reduced to the pe1iod already u11dergo11e----l11coporatio11 of a provision in the Border Security force Act similar to S.428 Cr.P.C. or S.169-A of the Anny Act-Suggestion made for amendment without delay. E Ajmer Singh v. Union of India and Ors., [1987) 3 SCR 84; Ajit Kumar F v. Union of India and Others Etc., [1988) 2 SCR 40 and Bhuwneshwar Singh v. Union of India and Others, [1993) 4 SCC 327, relied on. Claim for compensation for long detention as under trial accused-Sen- tence of one year R.I. imposed as against a maximum of ten years-Hence no need to give direction for payment of monetary compensation. Ajit Kumar v. Union of India and Othw Etc., (1988) 2 SCR 40, distinguished. G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 633of1987. From the Judgment and Order dated 30.9.85 of the Calcutta High Court in Crl.M. Case No. 1072 of 1985. H N.N. Goswami, Tara Chandra Sharma, Mrs. Sushma Suri and P. 306 U.0.1. v. AS. BIS HT 307 Parmeshwaran for the Appellants. Amrish Kumar for the Respondent. The following Order of Court was delivered : The judgment dated 30th September, 1985 passed by the 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 corous 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 Berhampur Central Jail. A B c The respondent Anand Singh Bisht moved the habeas corpus petition before the Calcutta High Court inter alia contending that as he had D undergone pre-trial detention by the Border Security Force authorities for about one year he was entitled to set off his sentence of one year's rigorous imprisonment under Section 428 of the Code of Criminal Procedure and he should, therefore, be forthwith released from detention. By the im- pugned judgment, the High Court came to the finding that the beneficial E 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 wch 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. It appears that on the question as to whether the benefit of Section F 428 of the Criminal Procedure Code providing for set off the period of detention undergone by an accused person during investigation, inquiry or G trial against the term of imprisonment is applicable when an army person- nel 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 and Ors., The decision rendered by this Court in the said is reported in (1987) 3 SCR 84. 1:he H 308 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R. A 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 inAjmer Singh's Case (supra). InAjmer Singh's 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 B convicted and sentenced by Court Martial under the Arm
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