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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mazhar Ali Shah, J.
Anand Singh - Appellant
Versus
Union Of India & 3 Ors. - Respondent
HCP (W) No. 112/1981
Decided On : 31 July, 1985
ARMY ACT - COURT MARTIAL - CONVICTION - ESPIONAGE - SENTENCE - SET-OFF OF PRE-CONVICTION DETENTION - APPLICABILITY OF SECTION 428 OF THE CODE OF CRIMINAL PROCEDURE.
Fact of the Case:
The petitioner, an army personnel, was convicted by a General Court Martial for espionage and sentenced to eight years of rigorous imprisonment and dismissal from service. He challenged the conviction on various grounds, including the lack of sanction under the Official Secrets Act, the applicability of the Code of Criminal Procedure to the trial, and the failure to set off the period of pre-conviction detention against the sentence.
Finding of the Court:
The court held that the conviction was valid as the offence was triable by a General Court Martial under the Army Act and did not require sanction under the Official Secrets Act. The court also held that the provisions of the Code of Criminal Procedure were not applicable to the trial as the Army Act provided a comprehensive procedure for the trial of offences under the Act. However, the court found that the sentence of eight years was excessive as the maximum punishment under Section 63 of the Army Act was seven years. The court reduced the sentence to seven years and directed the Superintendent of Jail to consider whether the petitioner was entitled to remission under the jail manual.
Issues: 1. Whether the conviction was valid in the absence of sanction under the Official Secrets Act? 2. Whether the provisions of the Code of Criminal Procedure were applicable to the trial? 3. Whether the sentence of eight years was excessive?
Ratio Decidendi: 1. The court held that the conviction was valid as the offence was triable by a General Court Martial under the Army Act and did not require sanction under the Official Secrets Act. The court relied on Section 69 of the Army Act, which gives a General Court Martial exclusive jurisdiction to try offences under the Act, except those provided in Section 70 of the Act. 2. The court held that the provisions of the Code of Criminal Procedure were not applicable to the trial as the Army Act provided a comprehensive procedure for the trial of offences under the Act. The court relied on Section 152 of the Army Act, which provides that proceedings before a Court Martial are deemed to be judicial proceedings, but does not incorporate the provisions of the Code of Criminal Procedure. 3. The court held that the sentence of eight years was excessive as the maximum punishment under Section 63 of the Army Act was seven years. The court reduced the sentence to seven years and directed the Superintendent of Jail to consider whether the petitioner was entitled to remission under the jail manual.
Final Decision: The court partly allowed the petition, quashed the sentence of eight years to the extent of one year, and directed the Superintendent of Jail to consider whether the petitioner was entitled to remission under the jail manual.
2. At the time of hearing, learned counsel for the petitioner precisely raised the following three contentions:-
(i) That the offence charged against the petitioner being an offence under the Indian Official Secrets Act. 1923, the conviction is bad for the want of sanction under Section 13 of the said Act and also the same being a Civil Offence should have been tried by an ordinary Criminal Court and not by the Criminal General Court Martial.
(ii) That under Section 152 of the Army Act, 1959 the trial by a Court Martial is deemed to be a judicial proceedings within the meaning of Section 193 and 228 of the Indian Penal Code, as such the trial is vitiated as the provisions of Criminal Procedure Code as well as Section 133 of the Evidence Act are violated, the finding of guilty is based on an alleged retracted confession made to a person in authority which stood uncorroborated and caused substantial failure of justice, and
(iii) That the petitioner has already undergone seven years of imprisonment, he is entitled to be set off against the sentence of imprisonment the period of detention undergone by the petitioner before the order of conviction as required under Section 423 of the Criminal-Procedure Code.
3. The petition is contested by the respondents in their counter affidavit, the respondents have refuted the allegations made by the petitioners regarding tortute and refusal of meeting with the family members of the petitioner. It is pointed out that on 20th January 1979, petitioner was granted leave for five days upto 25th January, 1979 and subsequent from 3rd February to 3rd April, 1979 in between on 16th March, 1979 near Bakapur post, the petitioner was arrested under certain suspicious circumstances, but after the establishment of his identity, he was released on the same date. On joining duty after availing the leave on 4th April, 1979, the petitioner was interviewed by his commanding Officer as he was suspected to have been involved certain acts of espionage against India for Pakistan. On account of the said involvement he was questioned by the appropriate military authorities and was su
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