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PATNA HIGH COURT
Prabha Shankar Mishra and . JJ.
Ex-major Ganesh Prasad Sinha
Versus
Union Of India
Criminal Writ Jurisdiction Case No. 137 of 1984 ;
Decided On : AUGUST 22, 1986
CRIMINAL LAW - ARMY ACT - SECTION 169, 171, 172, 173, 176 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 5, 428 - SET OFF OF PRE-CONVICTION DETENTION - COURT MARTIAL - JURISDICTION - NATURAL JUSTICE - REVIEW OF ADMINISTRATIVE ACTION - WRIT OF CERTIORARI AND MANDAMUS - INTERPRETATION OF STATUTES - SPECIAL LAW - APPLICABILITY OF CODE OF CRIMINAL PROCEDURE.
Fact of the Case:
The petitioner, an Ex-Major in the Indian Army, was convicted by a General Court Martial and sentenced to one year rigorous imprisonment for acts prejudicial to good order and military discipline. The sentence was confirmed by the Chief of the Army Staff and promulgated on 8-11-1983. The petitioner was handed over to the Civil Police, Jalandhar and lodged in the custody of the Superintendent, Central Jail, Jalandhar with the order that the sentence would take effect from 8-3-1983. The petitioner was released on 16-11-1983 pursuant to remission of 11 days for blood donation and benefits of trial period of 130 days. However, the second respondent, the Superintendent of Police, Muzaffarpur, addressed a communication to the Superintendent of Central Jail, Jalandhar stating that the petitioner was required to undergo unexpired portion of his sentence in view of the warrant of commitment issued by the fourth respondent on 9-1-1984. The petitioner challenged the order of re-arrest and the cancellation of the warrant of commitment.
Finding of the Court:
The Court held that the petitioner was entitled to set off the period of detention undergone by him during the investigation, enquiry or trial against the term of imprisonment imposed on him, as provided under Section 428 of the Code of Criminal Procedure, 1973. The Court further held that the Army Act is a special law and a conviction and sentence to undergo imprisonment by the Court-Martial shall not attract Section 428 of the Code, but the provisions of the Army Act do not cover the issue of set off of pre-conviction detention. The Court also held that the re-arrest of the petitioner without affording him an opportunity of being heard and without disclosing the authority of law under which he was sought to be detained was a violation of natural justice.
Issues: 1. Whether the petitioner was entitled to set off the period of detention undergone by him during the investigation, enquiry or trial against the term of imprisonment imposed on him? 2. Whether the Army Act excludes the applicability of Section 428 of the Code of Criminal Procedure, 1973? 3. Whether the re-arrest of the petitioner without affording him an opportunity of being heard and without disclosing the authority of law under which he was sought to be detained was a violation of natural justice?
Ratio Decidendi: 1. Section 428 of the Code of Criminal Procedure, 1973 is absolute in its terms and provides for set off of the pre-conviction detention of an accused person against the term of imprisonment imposed on him on conviction, irrespective of the term of imprisonment imposed and the factors taken into account by the court while imposing the term of imprisonment. 2. The Army Act is a special law and a conviction and sentence to undergo imprisonment by the Court-Martial shall not attract Section 428 of the Code of Criminal Procedure, 1973. However, the provisions of the Army Act do not cover the issue of set off of pre-conviction detention. 3. The common law principle of natural justice requires that a person should be given an opportunity of being heard and the authority of law under which he is sought to be detained should be disclosed to him.
Final Decision: The Court allowed the petition and issued a writ of certiorari quashing the orders of re-arrest and cancellation of the warrant of commitment, and a writ of mandamus directing the respondents not to take the petitioner in custody pursuant to the said orders.
P. S. Mishra, J.
1. An Ex-Major in the Indian Army has moved this Court for an appropriate writ to quash the order dated 30-1-1984 issued by the second respondent (Annexure I) and the order dated 9-1-1984 by the 4th respondent (Annexure-2 ).
2. The petitioner was found guilty in a General Court Martial held at jalandhar Cantonment and convicted on 29-10-1982 for acts prejudicial to good order and military discipline etc. On the said conviction, the General Court martial ordered for the petitioners dismissal from the military service, vide order dated 8-3-1983. There was a review suo moto and on 11-6-1983 the punishment was enhanced by the following:-
(1) the petitioner to be cashiered, and (2) to suffer rigorous imprisonment for one year. The enhancement was confirmed by the Chief of the Army Staff on 27-10-1983. Accordingly, the sentence was promulgated on 8-11-1983 and the petitioner was handed over to the Civil Police, Jalandhar and lodged in the custody of the superintendent, Central Jail, Jalandhar with the order that the sentence would take effect from 8-3-1983. It appears that before the promulgation of the sentence, the petitioner had been taken in custody by the army with his arrest on 21-10-1982 and at no time he was released until, according to him, he served out his sentence and released on 16-11-1983. According to the petitioner, he was so released pursuant to remision of 11 days for blood donation and benefits of trial period of 130 days vide order of the 4th respondent dated 15-11-1983. The second respondent, however, addressed a communication to the Superintendent of Police, Muzaffarpur dated 3-1-1984 stating therein that the petitioner was required to undergo unexpired portion of his sentence in view of the warrant of commitment issued by the 4th respondent on 9-1-1984. The communication of the second respondent has made a reference of the order of the 4th respondent dated 9-1-1984 which was issued cancelling the warrant of commitment dated 8-11-1983. Apprehending arrest, the petitioner has moved this Court.
3 There is no substantial controversy as to the conviction and sentence awarded to the petitioner by the competent authority. The main controversy, however, is whether the release of the petitioner on 8-1-1984 by the second respondent from his custody was invalid, as the petitioner was yet to serve out the sentence of imprisonment imposed upon him. In the counter-affidavit on behalf of the respondents 1 to 4, it is said that since the sentence was to commence from 8th March, 1983 as per Army Rules, 1968, the petitioner should have been released from the said prison on 8th March, 1984 ; erroneously, the Superintendent of the said jail prematurely released him from the prison on 16th November, 1983. He did so presuming that the provisions of Sec.428 of the Code of criminal Procedure of 1973 were applicable to the petitioner ; but the provisions of Code of Criminal Procedure, 1973 are not applicable to the trials conducted by a Court-Martial under the Army Act and the Army Rules made thereunder, since the Army Act is a special law as defined in the Indian Penal Code and section 5 of the Code of Criminal Procedure vires the application of such provision to the trials under the military law. According to the respondents, this bonafiae mistake was detected by the Superintendent of Central Jail, Jalandhar and accordingly, the communication (Annexure-1) has been issued.
4. Learned counsel for the petitioner has attacked the communication to re-arrest the petitioner to undergo further imprisonment after his release from custody mainly on two grounds :-
(1) there is no error in releasing the petitioner from custody who has served out his sentence of one year rigorous imprisonment, and (2) the respondents by taking unilateral decision to revoke remissions granted to the petitioner in the sentence have violated the principles of natural justice.
5. Before I deal with the contentions, I may refer to the provisi
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