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Wednesday, May 22, 2013

set off of the period of pre-trial detention against the period of sentence is concerned, Section 428 of the Code is not attracted to the cases of persons convicted by the court-martial to undergo imprisonments.- sentence Set off not applicable to court martial laws= As he is in illegal detention because he had already spent one and half months in custody before the conviction was recorded by the court-martial. the petitioner, an employee of Indian Air Force, who has been found guilty of the offence under Section 39(a) of The Air Force Act, 1950 (for brevity “the Act”) and has been awarded sentence to suffer rigorous imprisonment for three months along with other punishments by order dated 15.3.2013 which has been affirmed by the Competent Authority under Section 161(1) of the said enactment, has prayed for issue of a writ of habeas corpus directing the respondents to release him= In view of the aforesaid enunciation of law, there can be no scintilla of doubt that the pre-trial detention cannot be set off against the sentence of imprisonment passed by the court-martial for the offence under Section 39(a) which has been affirmed under Section 161(1) of the Act and the period of sentence shall commence from the date when the original proceeding was signed by the Presiding Officer. Thus, there is no illegal detention warranting issue of writ of habeas corpus.= Section 169-A to avoid hardship to the persons convicted by the court-martial. The said provision is as follows: - “169-A. Period of custody undergone by the officer or person to be set off against the imprisonment.— When a person or officer subject to this Act is sentenced by a court martial to a term of imprisonment, not being an imprisonment in default of payment of fine, the period spent by him in civil or military custody during investigation, inquiry or trial of the same case and before the date of order of such sentence, shall be set off against the term of imprisonment imposed upon him, and the liability of such person or officer to undergo imprisonment on such order of sentence shall be restricted to the remainder, if any, of the term of imprisonment imposed upon him.”- Section 151(1) and (3): - “151. Commencement of sentence. – (1) Subject to the provisions of sub-sections (2) and (3) every term of imprisonment or detention awarded in pursuance of this Act shall be reckoned as commencing on the day on which the sentence was awarded. (2) .................. (3) Whenever any offender is sentenced by a court-martial to a term of imprisonment, in pursuance of this Act, not being imprisonment in default of payment of fine, the period spent by him in civil or naval custody during investigation, inquiry or trial of the same case, and before the date of order of such sentence, shall be set off against the terms of imprisonment imposed upon him, and the liability of such offender to undergo imprisonment on such order of sentence shall be restricted to the remainder, if any, of the term of imprisonment imposed upon him.”=Though such amendments have been made by the Parliament under the 1950 Act and the 1957 Act, yet no such amendment has been incorporated in the Air Force Act, 1950. The aforesaid provisions, as we perceive, have been incorporated in both the statutes to avoid hardship to persons convicted by the court-martial. Similar hardship is suffered by the persons who are sentenced to imprisonment under various provisions of the Act. Keeping in view the aforesaid amendment in the other two enactments and regard being had to the purpose of the amendment and the totality of the circumstances, we think it apt to recommend the Union of India to seriously consider to bring an amendment in the Act so that the hardships faced by the persons convicted by the court-martial are avoided.


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IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) No. 78 of 2013
Samrendra Beura ... Petitioner
Versus
U.O.I. & others ...Respondents
J U D G M E N T
Dipak Misra, J.
In this writ petition, preferred under Article 32 of the
Constitution of India, the petitioner, an employee of Indian
Air Force, who has been found guilty of the offence under
Section 39(a) of The Air Force Act, 1950 (for brevity “the
Act”) and has been awarded sentence to suffer rigorous
imprisonment for three months along with other
punishments by order dated 15.3.2013 which has been
affirmed by the Competent Authority under Section 161(1)
of the said enactment, has prayed for issue of a writ of
habeas corpus directing the respondents to release him as
Page 2
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he is in illegal detention because he had already spent one
and half months in custody before the conviction was
recorded by the court-martial.
2. The factual score, as depicted, is that the petitioner
was appointed as a Mechanical Transport Driver in
the Indian Air Force on 16.12.2002. As he absented
himself without leave from 9.10.2012 to 1.2.2013, a
court-martial proceeding was initiated against him
and, eventually, by order dated 15.3.2013, he was
found guilty and was imposed the sentence of
rigorous imprisonment for three months apart from
dismissal from service and reduction of rank. It is put
forth in the petition that the petitioner had
surrendered before the Competent Authority
whereafter he was charged for the offence under
Section 39(a) of the Act. It is contended that the
sentence imposed under Section 39(a) should take
into consideration the period commencing 1.2.2003
as he had surrendered to custody before the
Competent Authority.Page 3
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3. As the respondents have been represented and the
issue involved exclusively relates to pure realm of
law, we have heard Mr. Merusagar Samantary,
learned counsel for the petitioner, and Mr. Rakesh
Khanna, learned Additional Solicitor General, and Mr.
Balasubramanian, learned counsel for the
respondents.
4. It is the admitted fact that the petitioner surrendered
to custody on 1.2.2013. There is a dispute with
regard to the date of the order passed by the
Competent Authority, namely, district court-martial.
The learned counsel for the petitioner would contend
that it was passed on 15.3.2013 whereas Mr. Khanna
would submit that it was passed on 18.3.2013. The
said disputed fact is neither material one nor would it
have any impact on the adjudication of the writ
petition inasmuch as the fulcrum of the matter is
whether the period of custody prior to the date of
passing and signing of the order by the district court martial is to be set off in respect of the sentence
imposed.Page 4
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5. Section 39 which provides for absence without leave
stipulates that any one who commits any offence
falling under clauses 39(a) to (g) shall, on conviction
by court-martial, be liable to suffer imprisonment for
a term which may extend to three years or such less
punishment as the Act mentions. Chapter IX deals
with arrest and proceedings before trial. Section
102, which occurs in this Chapter, deals with custody
of offenders and reads as follows: -
“102. Custody of offenders. – (1) Any person
subject to this Act who is charged with an
offence may be taken into air force custody.
(2) Any such person may be ordered into air
force custody by any superior officer.
(3) Any officer may order into air force
custody any officer, though he may be of a
higher rank, engaged in a quarrel, affray or
disorder.”
6. Section 103 deals with duty of commanding officer in
regard to detention and Section 104 provides for
interval between committal and court-martial. It
reads as follows: -
“104. Interval between committal and
court-martial. – In every case where any such
person as is mentioned in section 102 and as is
not on active service remains in such custodyPage 5
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for a longer period than eight days, without a
court-martial for his trial being ordered to
assemble, a special report giving reasons for
the delay shall be made by his commanding
officer in the manner prescribed; and a similar
report shall be forwarded every eight days until
a court-martial assembled or such person is
released from custody.”
7. Section 107 deals with inquiry into absence without
leave. Sub-section (1) of the said Section provides
that when any person has been absent from duty
without due authority for a period of 30 days, a court
of inquiry shall, as soon as practicable, be assembled
and such court shall, on oath or affirmation
administered in the prescribed manner, inquire
regarding the absence of the person. The rest of the
provision need not be adverted to.
8. Section 109 deals with different kinds of court-martial
and clause (b) of the said Section relates to district
court-martial. Section 119 deals with the powers of
district court-martial. Chapter XI commencing from
Sections 127 to 151 deals with the procedure of
court-martial. Section 152, which occurs in Chapter
XII, deals with confirmation and revision and provides
that no finding or sentence of a general, district orPage 6
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summary general court-martial shall be valid except
so far as it may be confirmed as provided by the Act.
Section 154 deals with the power to confirm finding
and sentence of district-court martial.
9. In the case at hand, after the sentence was imposed,
the Air Officer Commanding-in-Chief confirmed the
order on 20.4.2013. The learned counsel for the
petitioner would propone that the sentence of
imprisonment of three months should commence
from 1.2.2013, the date on which he surrendered and
was taken into custody. In this context, Mr. Khanna
has drawn our attention to Section 164 of the Act. It
reads as follows: -
“164. Commencement of sentence of
transportation or imprisonment. –
Whenever any person is sentenced by a courtmartial under this Act to transportation,
imprisonment or detention the term of his
sentence shall, whether it has been revised or
not, be reckoned to commence on the day on
which the original proceedings were signed by
the presiding officer.”
10. On a plain reading of the said provision, it is clear as
day that the period of imprisonment is to be
reckoned to commence on the day on which thePage 7
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original proceedings were signed by the Presiding
Officer. The Presiding Officer has signed, as
submitted by Mr. Khanna, on 18.3.2013 and,
therefore, the petitioner has to suffer three months
imprisonment from that date. In this context, we
may usefully refer to a two-Judge Bench decision in
Ajmer Singh and others v. Union of India and
others1
. The issue before this Court was regarding
the applicability of Section 428 of the Code of
Criminal Procedure to a person sentenced to undergo
imprisonment by general court-martial under the
Army Act, 1950 (for short “the 1950 Act”). The two
learned Judges observed that the position in the
Army Act would equally govern the person sentenced
to undergo rigorous imprisonment by the courtmartial under the Navy Act, 1957 (for short “the 1957
Act”) and the Air Force Act. The two-Judge Bench
referred to the divergence of views between different
High Courts pertaining to the applicability of Section
428 of the Code and, thereafter, the interpreted
1
 (1987) 3 SCC 340Page 8
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Section 167 of the 1950 Act and came to hold as
follows: -
“9. Section 167 of the Act specifically lays down
that whenever a person is sentenced by a court
martial under the Act to imprisonment, the term
of his sentence shall, whether it has been
revised or not, be reckoned to commence on
the day on which the original proceedings were
signed by the Presiding Officer or, in the case of
a summary court martial, by the Court. In the
face of this categorical provision laying down
that the sentence of imprisonment shall be
deemed to have commenced only on the day
when the court martial proceeding was signed
by the Presiding Officer or by the Court as the
case may be, it is in our opinion futile to
contend that the Army Act is silent with respect
to the topic as to the date with effect from
which the period of imprisonment covered by
the sentence is to be reckoned. We state this
only for the reason that an ingenious argument
was advanced before us by counsel for the
appellants that Section 5 of the Code of
Criminal Procedure only lays down that nothing
in the Code shall affect any special or local law
and hence in the absence of any specific
provision in the special or local law covering the
particular subject-matter, the provisions of the
Code would get attracted. Even if this argument
is to be assumed to be correct (which
assumption we shall presently show is wholly
unwarranted), inasmuch as Section 167 of the
Act specifically deals with the topic of the date
of commencement of the sentence of
imprisonment, there is absolutely no scope for
invoking the aid of Section 428 of the Code of
Criminal Procedure in respect of prisoners
convicted by court martial under the Act.”Page 9
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11. In Bhuwaneshwar Singh v. Union of India and
others2
, the Court referred to the pronouncement in
Ajmer Singh (supra) and opined that as far as set
off of the period of pre-trial detention against the
period of sentence is concerned, Section 428 of the
Code is not attracted to the cases of persons
convicted by the court-martial to undergo
imprisonments.
12. In view of the aforesaid enunciation of law, there can
be no scintilla of doubt that the pre-trial detention
cannot be set off against the sentence of
imprisonment passed by the court-martial for the
offence under Section 39(a) which has been affirmed
under Section 161(1) of the Act and the period of
sentence shall commence from the date when the
original proceeding was signed by the Presiding
Officer. Thus, there is no illegal detention warranting
issue of writ of habeas corpus.
13. We have been apprised that the petitioner has
submitted a representation under Section 180(1)
2
 (1993) 4 SCC 327Page 10
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read with Section 184 of the Act. Without expressing
any opinion on the merits of the said representation,
we direct the Competent Authority to decide the
same within a period of seven days from today.
14. Before parting with this case, it is necessary to note
that in the 1950 Act, the Parliament has incorporated
Section 169-A to avoid hardship to the persons
convicted by the court-martial. The said provision is
as follows: -
“169-A. Period of custody undergone by the
officer or person to be set off against the
imprisonment.— When a person or officer
subject to this Act is sentenced by a court martial to a term of imprisonment, not being an
imprisonment in default of payment of fine, the
period spent by him in civil or military custody
during investigation, inquiry or trial of the same
case and before the date of order of such
sentence, shall be set off against the term of
imprisonment imposed upon him, and the
liability of such person or officer to undergo
imprisonment on such order of sentence shall
be restricted to the remainder, if any, of the
term of imprisonment imposed upon him.”
15. Similarly, Section 151 of the 1957 Act which deals
with commencement of sentence has been amended
by Act 23 of 2005 with effect from 23.6.2005. For
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the present purpose, it is requisite to reproduce
Section 151(1) and (3): -
“151. Commencement of sentence. – (1)
Subject to the provisions of sub-sections (2) and
(3) every term of imprisonment or detention
awarded in pursuance of this Act shall be
reckoned as commencing on the day on which
the sentence was awarded.
(2) ..................
(3) Whenever any offender is sentenced by a
court-martial to a term of imprisonment, in
pursuance of this Act, not being
imprisonment in default of payment of
fine, the period spent by him in civil or
naval custody during investigation, inquiry
or trial of the same case, and before the
date of order of such sentence, shall be set
off against the terms of imprisonment
imposed upon him, and the liability of such
offender to undergo imprisonment on such
order of sentence shall be restricted to the
remainder, if any, of the term of
imprisonment imposed upon him.”
16. Though such amendments have been made by the
Parliament under the 1950 Act and the 1957 Act, yet
no such amendment has been incorporated in the Air
Force Act, 1950. 
The aforesaid provisions, as we
perceive, have been incorporated in both the
statutes to avoid hardship to persons convicted by
the court-martial. Similar hardship is suffered by the
persons who are sentenced to imprisonment under
Page 12
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various provisions of the Act. Keeping in view the
aforesaid amendment in the other two enactments
and regard being had to the purpose of the
amendment and the totality of the circumstances, 
we
think it apt to recommend the Union of India to
seriously consider to bring an amendment in the Act
so that the hardships faced by the persons convicted
by the court-martial are avoided.
17. The writ petition is accordingly disposed of.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 20, 2013.

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