This is a petition relating to set off under section 428, Cr. P. C. of the prior detention under the army custody before the conviction and sentence under the Army Act.

2. It is stated in the petition that a general court-martial, on 16.12.1982, convicted the petitioner and sentenced him to suffer R.I. for 10 (ten) years under sections 304 and 326, IPC read with section 69 of the Army Act. It is also stated in the petition that he was kept in the army custody as under-trial prisoner for a period of 8 (eight) months and one day in con­nection with the case before conviction.

3. The relevant provisions are sections 167 and 169 of the Army Act and section 5 of the Code of Criminal Procedure. Under section 167 of the Army Act, the term of sentence of imprisonment awarded by a court-martial shall be reckoned to commence on the day on which original proceedings were signed by the presiding officer or, in the case of summary court-mar­tial, by the Court. Section 169 of the Army Act relates to the execution of sentence of imprisonment. Under section 169 of the Army Act, the sentence shall be carried out by confinement in a military prison or a civil prison as provided there under. Sec­tion 5 of the Code saves special or local laws unless there is any "specific provision to the contrary".

4. In P.P. Chandrasekaran vs. Union of India, 1977 Cri.L. J. 677 (DB), the Madras High Court was construing section

151 (1) of the Navy Act, the language of which is substantially the same as that of the section 167 of the Army Act. and has held that the Navy Act is a special enactment within the meaning of section 5 of the Code, therefore, the application of the Code is excluded; and that the Navy Act prescribes procedure for trial and execution of sentence and as such, a convict cannot claim the benefit of section 428 of the Code.

5. In F. R. Jesuratnam vs. Chief of Air Staff, 1976 Crl. L.J. 65 (DB), the Delhi High Court has also similarly held that where a person is convicted under the Air Force Act and sentenced to imprisonment, the period of pre-detention cannot be set off against the term of the imprisonment. Section 164 of the Air Force Act, section 167 of the Army Act and sec­tion 151 (1) of the Navy Act are in pari materia relating to the same subject matter, namely, commencement of sentence.

6. The question which arises for consideration is whether section 428 of the Code will be applicable/extended to the sen­tence under the Army Act. Under section 4(1) of the Code, all offences under the Indian Penal Code shall be investigated, enquired into, tried, and otherwise dealt with according to the provision contained in the Code. Under section 4 (2) of the Code all the offences under any law shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Code, but subject to any enactment for the time being in force regulating the manner or place of investigation, enqui­ring into, or trying or otherwise dealing with such offences.

7. Section 5 of the Code runs :

"Nothing contained 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 other law for the time being in force." (emphasis added)

An analysis of section 5 of the Code shows that the Code shall govern the matter covered by it. If any special or local law exists covering the same field or area, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any special or local law, the special or local law will prevail. However, the Code will override any special or local taw, if there is any "specific provision to the contrary". The specific provision may be in the Code itself.

8. The next question which arises for consideration is whether section 428 of the Code is a "specific provision to the contrary '. As already stated above the specific provis

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