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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

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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.

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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.

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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 custody

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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 or

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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 court- martial  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  the

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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  court-

martial 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 340

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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.”

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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 327

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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

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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.