O R D E R The judgment dated 30th September, 1985 passed by the Division Bench of the Calcutta High Court in Criminal Misc. Case No. 1072 of 1985 arising out of a writ Petition for a writ of habeas corous made by the respondent Anand Singh Bisht is under challenge in this appeal. Anand Singh Bisht was a Naik in the Border Security Force. For injuring one cadet Raj Kishore singh he was tried under the Border Security Force Act, 1968 and was convicted for the offence under Section of the Indian penal Code and was sentenced to suffer one years' rigorous imprisonment. In execution of such sentence, he was lodged in the Bernampur Central jail. The respondent Anand Singh Bisht moved the hadeas corpus petition before the Calcutta High Court inter alia contending that as he had undergone pre-trial detention by the Border Security Force authorities for about one year he was entitled to set off his sentence of one year's rigorous imprisonment under section 428 of the Code of Criminal Procedure and he should, therefore, be forthwith released from detention. By the imougned judgment, the High Court came to the finding that the beneficial provison of Section 428 of the code of Criminal Procedure is applicable in the case of the respondent even though he was tried by a court martial under the border Security Force Act and Section 5 of the Code of Criminal Procedure has not taken away such benefit. Accordingly, an order was passed on 30th September, 1985 to release the respondent from detention. Against the said decision of the High Court of Calcutta, the Union of India has Preferred the instant appeal.
It appears that on the question as to whether the benefit of Section 428 of the Criminal Procedure code Providing for set off the Period of detention undergone by an accused person during investigation, inquiry or trial against the term of imprisonment is applicable when an army personnel is convicted by the Court Martial under the Army Act, the High Courts gave cifferent decisions, One of such decisions came up for consideration before this court in Ajmer singh Vs. Union of India and Ors. The decision rendered by this Court in the said case is reported in (1987) 3 SCR 84. The decision of the Calcutta High Court Passed in the said habeas corpus petition concerning the respondent, Anand singh Bisnt was also cited before this Court in Ajmer Singh's Case (supra). In Ajmer singh's case this Court has field that the Provision for set off contained in section 428 of the code of Criminal Procedure is not attracted in the case of persons convicted and sentenced by Court Martial under the Army Act. It has been indicated by this Court that the Army Act, the Navy Act and the air Force Act constitute special laws in force conferring special jurisdiction and powers on Courts Martial. They embooy a completely self contained comprenersive code sbecifying the various offices and prescribing the procedure for detention, custody investigation and trial of the offenders, the punishment to be awared, confirmation and revision of the sentences to be imposed the execution of such sentence and the grant of pardons, remissions and suspensions in repect of such senteces. Section 5 of the Code renders the Provisions of the Code inapplicabel in respect of all matters covered by such special law. It has also been indicated in the said decision that the distinction made in section 475 of the Code between trial by a Court to which this code applies and by a Court Martial conclusively indicates that Parliament intended to treat the Court Martial as a forum to the Proceedings before which the provisions of the code will have no application. It has also been held in the said decision that there is also intrinsic indication contained in the very wording of Section 428 of the Code that it cannot have any application in respect of persons tried and sentenced by Court Martial. there is no investigation conducted by any police officer under the Code or by any persons authorised by Magistrate in that behalf in the case of persons tried by the court Martial. No inquiry conducted under the code by any Magistrate or Court in respect of offences committed by persons which are tried by the court Martial. The trial is also not conducted by the Court Martial under the code but only in accordance with the special procedure prescribed by the Army Act. There is therefore, 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. The decision the Calcutta High Court rendered in the case of the respondent Anand Singh Bisht was expressly over-ruled in the said decision of Ajmer Singh's case(supra). We may indicate here that the decision made in Ajmer Singh Vs.Union of India and Others (1993 (4) SCC 327. This appeal, therefore should be dismissed. Mr. Amrish kumar, the learned counsel appearing for the respondent has however submitted before us that admittedly the respondent had undergone pre- trialdentention for almost one year and even though he is not entitled to set off under Section 428 of the Criminal Proceoure Code, as held by this Court, he is entitled to get compensation for such long detention at the pretrial stage. In support of such contention, he has relied on the decision or this Court in Bhuwaneshwar Singh's case (supra). Bhuwaneshwar Singh was tried by the Court Martial under the Army Act and was convicted by the Court Martial, but he was detained for more than three months as under-trial prisoner by the army Authorities in violation of the mandate under Rule 27 of the Rules framed under the Army Act and Rs.1,000/- was awarded by the trial court as compensation for such detention beyond the peried of three months, without taking the approval of the Central Government under Rule 27 for keeping the under trial in detention exceeding three months. Considering the inadequacy of such compensation of Rs.l,000/-, this Court enhanced such compensation in Bhuwneshwar Singh's case (supra). So far as the Border Security Force Act is concerned, there is no similar provision as in the Army Act and the rules framed thereunder, but under rule 39 of the Border Security Force Rules, a delay report is required to be furnsihed. Sub-Rule (2) of Rule 39 provides that where the accused is kept under arrest for a period exceeding three months without being brought to trial, a special report regarding the action taken and the reasons for the delay shall be sent by the Commandant to the Director-General with a copy each to the Deputy Insoector-General and the Inspector-General concerned. There is no provision under the Border Security force Act or the Rules framed Thereunder to get aporoval from the Central Government or by any higher authorities if the undererial accused is kept in detention during the Court Martial proceedings exceeding three months. Only the delay report is required to be furnished. It is only desirable that suitable provision is made in the Act and the Rules requiring to take approval from higher authorities if an undertrial member of the Border Security force is to be detained for more than three months for Good reasons, before conclusion of Court Martial Proceedings as in the army act. we may also in indicate here that the Army Act has been amended in 1992 and Section 69-A has been incorporated in the Army Act which is a similar provision for set off under Section 428 of the Criminal Procedure Code. It will be approoriate to refer to the provisions of Section 169 A of Army Act:
" 169 -A. Period of custody undergone by the officer or person to be set off against the imorisonment,- When a person or Officer subject to this Act Act is sentenced by a court-martial to a term of imprisonment, not being an imprisonmemt 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 or 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.
The learned counsel appearing for the appellant union of India. on our enquiry, has not been able to aporise the Court as to whether there is any active consideration for incorporating similar provision in the Border Security force Act, 1968. In our view, a provision similar to Section 428 of the Criminal procedure code or Section 169 A of the Army Act should incorporated in Border Security force Act so as to safeguard the interest of the undertrial accused in the Border Security Force, because a member of BorderSecurity Force when subjected to Court Martial is not entitled to the benefit of Section 428 CriminalProcedure Code. It is only desirable that such amendment should be made without delay.
Mr. Amrish Kumar, the Learned counsel for the respondent has submitted that although within the scope and ambit of this appeal, the prayer for compensation does not arise but in order to give complete justice in the case, this Court can give direction for giving suitable compensation to the respondent in exercise of the power under Artical 142 of the Constitution of India. We have taken into consideration the Justification of such claim for compensation. But in the facts and circumstances of the case, it appears to us that the respondent had made an application for taking note of the mitigating circumstances in the matter of awarding suitable punishment against him by indicating the period of detention as under trial accused before Court Martial. He was convicted under Section 307 of the Indian Penal Code and was awarded the sentence of imorisonment for only one year persumaoly by taking into consideration, the mitigating circumstances. We may indicate here that for an offence under Section 3076 of the Indian Penal Code, lmprisonment upto a period of ten years can be given. hence, we are not inclined to give any direction for monetary comoensation for long detention as under trial accused.
Mr.Amrish has lastly submitted that the respondent had a brilliant service record as a member of the Border Security Force. He had pariticipated in Indo-China War in 1962 and also in the Indo-Pakistan War in 1971. Mr. Kumar has submitted that the respondent did not cause injury to the cadet Raj Kishore Singh Intentionally, but as it has come out inevidence that both the said Raj Kishore Singh and the respondent Anand Singh Bisnt were lntoxicated at the time of the incident and not being in his full senses, the respondent had fired one shot from his rifle injuring the leg of the said cadet Raj Kishore Singh with whom he was quarelling for a Long time. We have looked into the records relating to the Court Martial proceedings in this Case. It appears from the evidence given by the prosecution withesses in the Court Martial that the respondent Anand Singh Bisnt was otherwise quite friendly with Raj Kishore. They on the date of incident started quarelling. Sri Anand shouted to the cadet Raj Kishore singh to move away from him and he had also given warning that otherwise Raj would be shot. It has also come out in evidence that Raj Kishore Singh did not move away and even when the rifle was raised with finger on the trigger Raj Kishore rather pressed the barrel and them he was shot at the leg. the Officer-in-cnarge of the Camp where the incident had taken place, in his preliminary investigating report sent to the commandant of the unit indicated that the Cadet Raj Kishore Singh and the respondent were in best of terms and most likely he did not intend to shot at him but because of the altercation he had fired one shot at the sour of the moment when he must have lost his temper.
Considering the aforesaid mitigating facts and also concidering the fact that sri Anand had suffered long detention as undertrial accused and has also suffered imprisonment at the Behrampur central jail in execution of the sentence for about six months, we feel that justice will be met if his sentence is reduced to the period already undergone. we order accordingly.
The appeal is accordingly disposed of.