Liability to undergo imprisonment cannot be restricted only to remaining part of the term.

This writ petition under Article 226 of the Constitution of India is directed by one Mrs. T.S. Ramani, praying for the issuance of a writ of habeas corpus setting at liberty forthwith her husband M.N. Manoharan, ex-Naik/Clerk, an Army personnel, who has been incarcerated in the Central Prison, Madras, in pursuance of the conviction by the District Court-Martial, Avadi, under Section 64(c) of the Army Act, 1950 (hereinafter referred to as the Army Act) for receipt of illegal gratification, and the sentence of rigorous imprisonment for six months in addition to the punishment of reduction in ranks and dismissal from service, inflicted on him.

2. Though various allegations have been made in the affidavit, which are refuted in the counter-affidavit, for the limited purpose of disposing of this writ petition, we feel that it would suffice to state that the said Manoharan was arrested and taken to military custody by his Commanding Officer before the commencement of his trial on 16.4.1983 under Section 101 of the Army Act read with paragraph 392 of the Regulations for the Army, 1962, and kept under detention till 18.9.1983, on which date he was convicted and sentenced as afore-mentioned.

3. The only submission made by Mr. U.N.R. Rao, learned counsel for the writ petitioner is that the detenu Manoharan is, by virtue of Section 428, Cr.P.C, entitled to have the pre-conviction detention suffered by him set off against the term of imprisonment imposed on him and that his liability to undergo imprisonment for his conviction should be restricted only to the remainder and in that case, he is to be set at liberty forthwith. According to him, notwithstanding the fact that the Army Act is a special enactment regulating the manner or place of investigating, inquiring into and trying offences, as prescribed under the provisions of the Act as well as under the Rules made thereunder, inasmuch as there is no specific provision in the Army Act either expressly or impliedly excluding the application of the benevolent provisions of Section 428, Cr.P.C, to the persons convicted and sentenced under the said Act, the pre-conviction detention suffered by the detenu in this case should be given a set off. In support of this proposition, learned counsel would place reliance on Sections 4(2) and 5 of the Code of Criminal Procedure.

4. Mr. N. Jothi, learned Additional Central Government Standing Counsel, in attempting to meet the arguments of Mr. Rao, submitted that the Army Act is a special law and as the Act and the Rules made thereunder lay down a complete and comprehensive procedure with regard to the trial of the offenders, award of sentences and the execution thereof, Section 428, Cr.P.C., has no application to a person sentenced by a Court-Martial. Secondly, he states that the Court-Martial has in fact, before passing the sentence, has taken into consideration the pre-conviction detention undergone by the detenu, and therefore, the grievance expressed by the petitioner is misconceived.

5. Before launching on a discussion about the contentions raised by the respective counsel, we shall give a brief note of the provisions coming under the various chapters of the Army Act, dealing with the functions, classification of offences, punishments, procedure to be adopted with regard to trial, execution of sentences etc.

6. The present Army Act, 1950 (Act 46 of 1950), was enacted in supersession of the Indian Army Act of 1911 (Act 8 of 1911) and was brought into force in July, 1950. Thus, the Act was enacted after the Constitution came into force on 26.1.1950. The Army Rules of 1954, made by the Central Government by virtue of the powers conferred by Section 191 of the Army Act, were made in supersession of the Indian Army Act Rules made under the Indian Army Act of 1911 and of the Army Act Rules of 1950, and they came into force from the date of its publication viz., from 27.11.1954. Therefore, we are concerned at present only with the present Army Act of 1950