Full Judgment Text
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PETITIONER:
UNION OF INDIA AND ORS.
Vs.
RESPONDENT:
ANAND SINGH BISHT
DATE OF JUDGMENT: 28/08/1996
BENCH:
RAY, G.N. (J)
BENCH:
RAY, G.N. (J)
HANSARIA B.L. (J)
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
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 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 Bisht moved the hadeas corpus
petition before the Calcutta High Court inter alia
contending that as 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 year’s rigorous
imprisonment under section 428 of the Code of Criminal
Procedure and he should, therefore, be forthwith released
from detention. By the imougned judgment, the High Court
came to the finding that the beneficial provison 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.
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 cifferent decisions, One of such
decisions came up for consideration before this court in
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Ajmer singh Vs. Union of India and Ors. 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 Bisnt was also cited before this
Court in Ajmer Singh’s Case (supra). In Ajmer singh’s case
this Court has field 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 embooy a completely self contained
comprenersive code sbecifying the various offices and
prescribing the procedure for detention, custody
investigation and trial of the offenders, the punishment to
be awared, confirmation and revision of the sentences to be
imposed the execution of such sentence and the grant of
pardons, remissions and suspensions in repect of such
senteces. Section 5 of the Code renders the Provisions of
the Code inapplicabel 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 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 the Calcutta High Court rendered in the case of the
respondent Anand Singh Bisht was expressly over-ruled in the
said decision of Ajmer Singh’s case(supra). We may indicate
here that the decision made in Ajmer Singh Vs.Union of India
and Others (1993 (4) SCC 327. This appeal, therefore should
be dismissed. Mr. Amrish kumar, the learned counsel
appearing for the respondent has however submitted before us
that admittedly the respondent had undergone pre-
trialdentention for almost one year and even though he is
not entitled to set off under Section 428 of the Criminal
Proceoure 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
or this Court in Bhuwaneshwar Singh’s 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 peried of three months,
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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.l,000/-, this Court enhanced such
compensation in Bhuwneshwar Singh’s case (supra). So far as
the Border Security Force Act is concerned, there is no
similar provision as in the Army Act and the rules framed
thereunder, but under rule 39 of the Border Security Force
Rules, a delay report is required to be furnsihed. Sub-Rule
(2) of Rule 39 provides that where the accused is kept under
arrest for a period exceeding three months without being
brought to trial, a special report regarding the action
taken and the reasons for the delay shall be sent by the
Commandant to the Director-General with a copy each to the
Deputy Insoector-General and the Inspector-General
concerned. There is no provision under the Border Security
force Act or the Rules framed Thereunder to get aporoval
from the Central Government or by any higher authorities if
the undererial accused is kept in detention during the Court
Martial proceedings exceeding three months. Only the delay
report is required to be furnished. It is only desirable
that suitable provision is made in the Act and the Rules
requiring to take approval from higher authorities if an
undertrial member of the Border Security force is to be
detained for more than three months for Good reasons, before
conclusion of Court Martial Proceedings as in the army act.
we may also in indicate here that the Army Act has been
amended in 1992 and Section 69-A has been incorporated in
the Army Act which is a similar provision for set off under
Section 428 of the Criminal Procedure Code. It will be
approoriate to refer to the provisions of Section 169 A of
Army Act:
" 169 -A. Period of custody
undergone by the officer or person
to be set off against the
imorisonment,- When a person or
Officer subject to this Act Act is
sentenced by a court-martial to a
term of imprisonment, not being an
imprisonmemt in default of payment
of fine, the period spent by him in
civil or military custody during
investigation, inquiry or trial of
the same case and before the date
or order of such sentence, shall be
set off against the term of
imprisonment imposed upon him, and
the liability of Such person or
officer to undergo imprisonment on
such order of sentence Shall be
restricted to the remainder, if
any, of the term of imprisonment
imposed upon him.
The learned counsel appearing for the appellant union
of India. on our enquiry, has not been able to aporise the
Court as to whether there is any active consideration for
incorporating similar provision in the Border Security
force Act, 1968. In our view, a provision similar to Section
428 of the Criminal procedure code or Section 169 A of the
Army Act should incorporated in Border Security force Act so
as to safeguard the interest of the undertrial accused in
the Border Security Force, because a member of
BorderSecurity Force when subjected to Court Martial is not
entitled to the benefit of Section 428 CriminalProcedure
Code. It is only desirable that such amendment should be
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made without delay.
Mr. Amrish Kumar, the Learned counsel for the
respondent has submitted that although within the scope and
ambit of this appeal, the prayer for compensation does not
arise but in order to give complete justice in the case,
this Court can give direction for giving suitable
compensation to the respondent in exercise of the power
under Artical 142 of the Constitution of India. We have
taken into consideration the Justification of such claim for
compensation. But in the facts and circumstances of the
case, it appears to us that the respondent had made an
application for taking note of the mitigating circumstances
in the matter of awarding suitable punishment against him by
indicating the period of detention as under trial accused
before Court Martial. He was convicted under Section 307 of
the Indian Penal Code and was awarded the sentence of
imorisonment for only one year persumaoly by taking into
consideration, the mitigating circumstances. We may indicate
here that for an offence under Section 3076 of the Indian
Penal Code, lmprisonment upto a period of ten years can be
given. hence, we are not inclined to give any direction for
monetary comoensation for long detention as under trial
accused.
Mr.Amrish has lastly submitted that the respondent had
a brilliant service record as a member of the Border
Security Force. He had pariticipated in Indo-China War in
1962 and also in the Indo-Pakistan War in 1971. Mr. Kumar
has submitted that the respondent did not cause injury to
the cadet Raj Kishore Singh Intentionally, but as it has
come out inevidence that both the said Raj Kishore Singh and
the respondent Anand Singh Bisnt were lntoxicated at the
time of the incident and not being in his full senses, the
respondent had fired one shot from his rifle injuring the
leg of the said cadet Raj Kishore Singh with whom he was
quarelling for a Long time. We have looked into the records
relating to the Court Martial proceedings in this Case. It
appears from the evidence given by the prosecution withesses
in the Court Martial that the respondent Anand Singh Bisnt
was otherwise quite friendly with Raj Kishore. They on the
date of incident started quarelling. Sri Anand shouted to
the cadet Raj Kishore singh to move away from him and he had
also given warning that otherwise Raj would be shot. It has
also come out in evidence that Raj Kishore Singh did not
move away and even when the rifle was raised with finger on
the trigger Raj Kishore rather pressed the barrel and them
he was shot at the leg. the Officer-in-cnarge of the Camp
where the incident had taken place, in his preliminary
investigating report sent to the commandant of the unit
indicated that the Cadet Raj Kishore Singh and the
respondent were in best of terms and most likely he did not
intend to shot at him but because of the altercation he had
fired one shot at the sour of the moment when he must have
lost his temper.
Considering the aforesaid mitigating facts and also
concidering the fact that sri Anand had suffered long
detention as undertrial accused and has also suffered
imprisonment at the Behrampur central jail in execution of
the sentence for about six months, we feel that justice will
be met if his sentence is reduced to the period already
undergone. we order accordingly.
The appeal is accordingly disposed of.