Samrendra Beura vs. U.O.I. & others, Writ Petition (Crl.) No. 78 of 2013, Decided on May
20, 2013
Court-martial
proceeding. The Accused found guilty of the offence under Section 39(a) of the
Air Force Act, 1950
Accused claimed
setting off the pre-trail detention. The Hon’ble Supreme Court held:
“there can be no scintilla of doubt that the pre-trial detention
cannot be set off against the sentence of imprisonment passed by the
court-martial for the offence under Section 39(a) which has been affirmed under
Section 161(1) of the Act and the period of sentence shall commence from the
date when the original proceeding was signed by the Presiding Officer.” [Para
12]
The Court noted
following case laws:
Ajmer Singh and
others v. Union of India and others, (1987) 3 SCC 340, the issue before this
Court was regarding the applicability of Section 428 of the Code of Criminal
Procedure to a person sentenced to undergo imprisonment by general
court-martial under the Army Act, 1950 (for short “the 1950 Act”). The two
learned Judges observed that the position in the Army Act would equally govern
the person sentenced to undergo rigorous imprisonment by the court martial
under the Navy Act, 1957 (for short “the 1957 Act”) and the Air Force Act. The
two-Judge Bench referred to the divergence of views between different High
Courts pertaining to the applicability of Section 428 of the Code and,
thereafter, the interpreted Section 167 of the 1950 Act and came to hold as
follows: -
“9. Section 167 of the Act specifically lays down that whenever a
person is sentenced by a court martial under the Act to imprisonment, the term
of his sentence shall, whether it has been revised or not, be reckoned to
commence on the day on which the original proceedings were signed by the
Presiding Officer or, in the case of a summary court martial, by the Court. In
the face of this categorical provision laying down that the sentence of
imprisonment shall be deemed to have commenced only on the day when the court
martial proceeding was signed by the Presiding Officer or by the Court as the
case may be, it is in our opinion futile to contend that the Army Act is silent
with respect to the topic as to the date with effect from which the period of
imprisonment covered by the sentence is to be reckoned. We state this only for
the reason that an ingenious argument was advanced before us by counsel for the
appellants that Section 5 of the Code of Criminal Procedure only lays down that
nothing in the Code shall affect any special or local law and hence in the
absence of any specific provision in the special or local law covering the
particular subject-matter, the provisions of the Code would get attracted. Even
if this argument is to be assumed to be correct (which assumption we shall
presently show is wholly unwarranted), inasmuch as Section 167 of the Act
specifically deals with the topic of the date of commencement of the sentence
of imprisonment, there is 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.”
Bhuwaneshwar
Singh v. Union of India and Others (1993) 4 SCC 327, the Court referred to the
pronouncement in Ajmer Singh case and opined that as far as set off of the
period of pre-trial detention against the period of sentence is concerned,
Section 428 of the Code is not attracted to the cases of persons convicted by
the court-martial to undergo imprisonments.
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