IMPORTANT POINTS
Period of detention prior to date of signing of original proceeding cannot be set off against sentence.
Amendment in the Air Force Act on the lines of Section 169-A of Army Act, 1950; Section 151(1) and (3) of Navy Act, 1957 recommended.

JUDGMENT

Dipak Misra, J.

In this writ petition, preferred under Article 32 of the Constitution of India, the petitioner, an employee of Indian Air Force, who has been found guilty of the offence under Section 39(a) of The Air Force Act, 1950 (for brevity “the Act”) and has been awarded sentence to suffer rigorous imprisonment for three months along with other punishments by order dated 15.3.2013 which has been affirmed by the Competent Authority under Section 161(1) of the said enactment, has prayed for issue of a writ of habeas corpus directing the respondents to release him as he is in illegal detention because he had already spent one and half months in custody before the conviction was recorded by the court-martial.

2. The factual score, as depicted, is that the petitioner was appointed as a Mechanical Transport Driver in the Indian Air Force on 16.12.2002. As he absented himself without leave from 9.10.2012 to 1.2.2013, a court-martial proceeding was initiated against him and, eventually, by order dated 15.3.2013, he was found guilty and was imposed the sentence of rigorous imprisonment for three months apart from dismissal from service and reduction of rank. It is put forth in the petition that the petitioner had surrendered before the Competent Authority whereafter he was charged for the offence under Section 39(a) of the Act. It is contended that the sentence imposed under Section 39(a) should take into consideration the period commencing 1.2.2003 as he had surrendered to custody before the Competent Authority.

3. As the respondents have been represented and the issue involved exclusively relates to pure realm of law, we have heard Mr. Merusagar Samantary, learned counsel for the petitioner, and Mr. Rakesh Khanna, learned Additional Solicitor General, and Mr. Balasubramanian, learned counsel for the respondents.

4. It is the admitted fact that the petitioner surrendered to custody on 1.2.2013. There is a dispute with regard to the date of the order passed by the Competent Authority, namely, district court-martial. The learned counsel for the petitioner would contend that it was passed on 15.3.2013 whereas Mr. Khanna would submit that it was passed on 18.3.2013. The said disputed fact is neither material one nor would it have any impact on the adjudication of the writ petition inasmuch as the fulcrum of the matter is whether the period of custody prior to the date of passing and signing of the order by the district court-martial is to be set off in respect of the sentence imposed.

5. Section 39 which provides for absence without leave stipulates that any one who commits any offence falling under clauses 39(a) to (g) shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as the Act mentions. Chapter IX deals with arrest and proceedings before trial. Section 102, which occurs in this Chapter, deals with custody of offenders and reads as follows: -

“102. Custody of offenders. – (1) Any person subject to this Act who is charged with an offence may be taken into air force custody.

2) Any such person may be ordered into air force custody by any superior officer.

3) Any officer may order into air force custody any officer, though he may be of a higher rank, engaged in a quarrel, affray or disorder.”

6. Section 103 deals with duty of commanding officer in regard to detention and Section 104 provides for interval between committal and court-martial. It reads as follows: -

“104. Interval between committal and court-martial. – In every case where any such person as is mentioned in section 102 and as is not on active service remains in such custody for a longer period than eight days, without a court-martial for his trial being ordered to assemble, a special report giving reasons for the delay shall be made by his commanding officer in the manner prescribed; and a similar report shall be forwarded every eight days until a court-martial assembled o