Union of India & Ors Vs. Anand Singh Bisht
[1996] INSC 1029 (28
August 1996)
Ray,
G.N. (J) Ray, G.N. (J) Hansaria B.L. (J)
ACT:
HEAD NOTE:
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 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 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, 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 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.
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