The provisions of the Code of Criminal Procedure, 1973, do not apply to the Air Force Act, 1950, except to the extent to which the Code makes it applicable.

( 1 ) THE question which has been referred to this Division Bench by one of us (V. D. Misra, J.) is "whether a person undergoing imprisonment after being convicted under the Air Force Act- 1950, can be allowed to set off the period of pre-trial detention against the sentence of imprisonment ?"

( 2 ) F. R. Jesuratnam (the petitioner), who was a Squadroni Leader, was placed under close arrest under the Air Force Act, 1950 (herein after called the Act) on 9-11-1974. He was tried by a General Court Martial which sentenced him to six months rigorous imprisonment on 4-3-1975. The sentence was duly confirmed under section 152 of the Act by the Chief of Air Staff on 8-4-19 75. The petitioner was thereafter sent to Tihar Jail for serving the sentence awarded to him.

( 3 ) ACCORDING to section 164 of the Act, the "sentence shall, whether it has been revised or not, be reckone d to commence on the day on which the original proceedings were signed by the presiding officer". The sentence awarded to the petitioner, therefore, commenced to run on 4-3-1975.

( 4 ) THE contention of the petitioner is that the period of his detention from 9-11-1974 to 4-3-1975 should be set off against the sentence of imprisonment of six months awarded to him. There is not much controversy about the petitioner having been so detained, because he was not free to go wherever he liked despite the facilities granted to him during that period because of the rank he was holding. It is argued for the petitioner that the benefit of pre-trial detention, which is given to a civilian who is sentenced under the general law by reason of section 428 of the Code of Criminal Procedure, 1973 (hereinafter called the Code), should be apicable to the petitioner also ; if it did not, it is urged, it would amount to discrimination which is unconstitutional.

( 5 ) SECTION 5 of the Code reads as follows : "nothing coatained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any ether law for the time being in force".

( 6 ) THE previous Code of Criminal Procedure of 1898 [section 1 (2)] also provided that nothing in file said Code "shall affect any special or local law" then in force.

( 7 ) THE Act is such a special law. The kind of punishment that was imposed on the petitioner had been specifically provided by section 73 (e ). The provisions of the Code had not been made applicable except to the extent to which the Code makes it applicable to it, i. e. to a very limited extent. Section 151 of the Act only provides for trial by a court martial under the provisions of the Act being deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code and the court-martial being deemed to be a court within the meaning of sections 480 and 482 of the Code of 1898. Under section 166 of the Act whenever any sentence of imprisonment is passed under the Act (save in certain cases which do not apply here) the same may be carried out by confinement in a military or air force prison or by confining in a civil prison, as may be directed by the confining officer or by such officer as may be prescribed. Section 175 of the Act empowers the Central Government to make rules, among others, for the labour of prisoners undergoing confinement therein, and for enabling such prisoners or persons to earn by special industry and good conduct, remission of a portion of the sentence. Section 176 of the Act. however, provides that rules made under section 175 shall not authorise corporal punishment to be inflicted for any offence, nor render the imprisonment more severe than it is under any law for the time being in force relating to civil prisons in India. This has obvious reference to the mode of imprisonment. Section 177 of the Act provides for perdon and remission of sentences with w