Madras High Court
T.S. Ramani vs The Superintendent Of Prisons, Central ... on 31 January, 1984
Author: S. Ratnavel Pandian
Bench: S. Ratnavel Pandian
JUDGMENT Ratnavel Pandian, J.
1. 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(e) 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 rank 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 aforementioned.
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 the 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 Cr.P.C.
4. Mr. N. Jothi, learned Additional Central Government Standing Counsel, in attempting to meet the arguments or 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, 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 the 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 the publication viz., from 27-11-1954. Therefore, we are concerned at present only with the present Army Act of 1950 and the Rules of 1954.
7. If one goes through each and every provision of this Act, he could see that this Act is based on grounds of maintenance of strict discipline in the Army. The military officers, while implementing the various provisions of the Act, are to be guided by considerations of exigencies of the service, maintenance of discipline in the Army, speedier trial, nature of the offence, the person against whom the offences are committed, etc. There are in total 196 sections grouped under sixteen chapters. So far as this writ petition is concerned, we would like to touch upon some of the provisions of Sections 34 to 70 coming under Chapter VI under the caption "Offences", Sections 71 to 89 coming under Chapter VII dealing with punishments. Sections 90 to 100 coming under Chapter VIII dealing with penal deductions, Sections 101 to 107 coming under Chapter IX dealing with arrest and proceedings before trial, Sections 108 to 127 coming under Chapter X dealing with Courts-Martial, Sections 128 to 152 under Chapter XI dealing with procedure of Courts-Martial, Sections 153 to 165 coming under Chapter XII dealing with confirmation and revision, Sections 166 to 178 coming under Chapter XIII dealing with execution of sentences, and Sections 179 to 190 coming under Chapter XIV dealing with pardons, remissions and suspensions, so as to see whether or not the Army Act is a self-contained Code by itself providing separate provisions for trial of cases against offenders under the Army Act from the stage of levelling a charge till the execution of sentences.
8. Section 3(xvii) of the Army Act defines the word "offence" as follows :
"In this Act, unless the context otherwise requires, ..... (xvii) 'offence' means any act or omission punishable under this Act and includes a civil offence as hereinbefore defined."
Section 3(ii) defines the 'civil offence' as meaning "an offence which is triable by a criminal Court". The term "criminal Court" is defined in Section 3(viii) as meaning a Court of ordinary criminal justice in any part of India. Sections 34 to 68 define various kinds of offences against the Act triable by a Court-Martial and also indicate the punishments for the said offences. Section 69 reads that subject to the provisions of Section 70, any person subject to this Act who, at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith, under this section, shall be liable to be tried by a Court-Martial and on conviction be punishable as provided under the said section (Section 69). Section 70 deals with civil offences not triable by a Court-Martial and provides thus :
"A person subject to this Act who commits an offence of murder against a person not subject to Military, Naval or Air Force Law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Court-Martial unless he commits any of the said offences :-
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf."
Shortly stated, under Chapter VI three categories of offences are enumerated, viz., (1) offences committed by a person subject to the Act, triable by a Court-Martial in respect whereof specific punishments have been assigned;
(2) civil offences committed by the said person at any place in or beyond India, but deemed to be offences committed under the Act and if charged under Section 69 of the Act, triable by a Court-Martial;
and (3) offence of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Act against a person not subject to the military law. (Offences coming under this third category of cases, subject to a few exceptions, are not triable by a Court-Martial but are triable only by ordinary criminal Courts). The legal position, therefore, is that when an offence is for the first time created by the Army Act, such as those created by Sections 34 to 68, it would be exclusively triable by a Court-Martial. But, where a civil offence is also an offence under the Army Act, or deemed to be an offence under the Act both an ordinary criminal Court and a Court-Martial would have jurisdiction to try the person committing the offence. Such a situation is visualised and provision is made for resolving the conflict under sections 125 and 126 of the Act. Section 125 presupposes that in respect of offences both a Criminal Court and the Court-Martial have such concurrent jurisdiction. Such a situation can arise in the case of an act or omission punishable both under the Army Act and under any law in force in India. It may also arise in the case of an offence deemed to be an offence under the Army Act. Under the scheme of the two sections (Sections 125 and 126), in the first instance, it is left to the discretion of the officer mentioned in Section 125 to decide before which Court the proceedings shall be instituted, and, if the officer decides that they should be instituted before a Court-Martial, the accused person is to be detained in military custody, but if a criminal Court is of opinion that the said offence shall be tried before itself, it may issue the requisite notice under section 126 either to deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to the Central Government. On receipt of the said requisition, the officer shall either deliver over the offender to the said Court or refer the question to the proper Court for the determination of the Central Government whose order shall be final. These two sections of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction, having regard to the exigencies of the situation in any particular case. See Som Datt Datta v. Union of India .
9. Section 475(1) of the new Code of Criminal Procedure corresponding to Section 549(1) of the old Code deals with delivery to commanding officers of persons liable to be tried by a Court Martial. According to this section, the Central Government may make rules consistent with the Code of Criminal Procedure and the Army Act of 1950, the Navy Act of 1957, the Air Force Act of 1950 and any other law relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to Military, Naval or Air Force law or such other law, shall be tried by a Court to which this Code applies or by a Court-Martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by, a Court to which this Code applies or by a Court-Martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court-Martial. An explanation is appended to the new section explaining the term "unit" and "Court-Martial". The explanation to this subsection reads as follows :
"Explanation. In this section :-
(a) 'unit' includes a regiment, corps, ship, detachment, group, battalion or company.
(b) 'Court-Martial' includes any tribunal with the powers similar to those of a Court-Martial constituted under the relevant law applicable to the Armed Forces of the Union."
According to this provision of the Criminal Procedure Code and the Rules framed thereunder, the final choice about the forum of the trial of a person accused of a civil offence rests with the Central Government, whenever there be difference of opinion between a Criminal Court and the military authorities about the forum where an accused be tried for the particular offence committed by him. The position under sections 125 and 126 of the Army Act is quite analogous to the one under section 475(1) of the Code.
10. The procedure to be followed by a Court-Martial is quite elaborate and generally follows the pattern of the procedure under the Code of Criminal Procedure. There are, however, material difference too. All the members of the Court-Martial are military officers who are not expected to be trained Judges as the presiding officers of the Criminal Court are No judgment is recorded except a finding and the sentence passed thereon. No appeal is provided against the order of the Court-Martial. However, as per the provisions under Chapter XII of the Act, the sentences passed by the Court-Martial have to be confirmed as contemplated thereunder. Section 164 provides a remedy for an aggrieved person against the order, finding or sentence of a Court-Martial, by presenting a petition to the officer or authority empowered to confirm the finding or sentence of such Court-Martial, and again presenting a petition, if aggrieved by such confirmed finding or sentence, to the Central Government, the Chief of Army Staff or any prescribed officer superior in command to the one who confirms such finding or sentence. The authorities to whom the convicted person can represent against a finding or sentence passed against him by the Court-Martial are also non-judicial authorities. See Ram Sarup v. Union of India . Reference, in this connection, can be had to the relevant rules touching on this aspect. Chapter V of the Army Rules consists of Rules 22 to 176, all coming under the caption "Investigation of Charges and Trial by Court-Martial". This chapter is divided into seven sections, under the following sub-headings, viz., (1) Investigation of Charges and Remand for Trial, (2) General and District Courts-Martial, whereunder the procedure of the trial, the findings and sentences etc., are dealt with, (3) Summary Court-Martial, (4) General Provisions with regard to Witnesses and Evidence, (5) Summary General Courts-Martial, (6) Execution of Sentences and (7) Field Punishments. Thus, it is clear that the Army Act is a self-contained Code by itself, providing for the machineries and the procedure to be followed for the trial of any army personnel for the various offences except the offences specifically excluded in the Act from the stage of indictment, arrest, etc., up to the stage of the execution of sentences and also with regard to the period of limitation for trial. The army Rules made thereunder are comprehensive enough containing provisions for the effective implementation of the Act.
11. Now, coming to the present case on hand, it is submitted by Mr. U. N. R. Rao by taking the aid of Sections 4 and 5 of the Criminal Procedure Code, 1973, that as there is no specific provision in the Army Act contrary to Section 428, of the Code affecting the special law, this benevolent provision under S. 428 could be invoked in favour of an army personnel also sentenced by a Court-Martial under the Army Act.
12. Now, let us examine this contention with reference to the intendment of Sections 4 and 5 of the Criminal Procedure Code. They read as follows :
"4. Trial of offences under the Indian Penal Code and other laws :- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
5. Saving :- Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force."
Sections 4 and 5 of the Criminal Procedure Code, 1973, correspond to Sections 5 and 1(2) of the old Code.
13. The law of procedure is not different for the trial of cases under the Penal Code and those under other statutes, according to Section 4, Cr.P.C., except that in the case of offences under other statutes, the procedure laid down, by the Code is subject to any enactment for the time being in force for regulating the manner or place of investigation, inquiry or trial. The existence of a special law or local law by itself cannot be taken to exclude the operation of the Code of Criminal Procedure, unless such law prescribes a special procedure for the trial of an offence, thereby excluding, impliedly or expressly, the operation of the Code of Criminal Procedure in respect of such trial. In other words, if such special law or local law prescribes a special procedure for the trial of offences under that Act, the procedure laid down in the Criminal Procedure Code would be excluded in respect of such trials. As per Section 4(2), all offences under a law other than the Indian Penal Code shall be tried according to the provisions contained in the Criminal Procedure Code, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 provides that in the absence at any specific provision to the contrary nothing in the Criminal Procedure Code shall affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force. In other words, this section provides that nothing in the Code shall affect any special law in the absence of any specific provision to the contrary. Thus, this provision is an application of the maxim "generalia specialibus non derogant". For the complete exclusion of the application of the Code of Criminal Procedure, the law regarding the procedure to be followed in cases falling under the special Act must be found in the enactment itself conferring jurisdiction to try the cases, as contemplated in Section 4(2). A conjoint reading of Sections 4(2) and 5 of the Code would have the following effect :-
(1) All offences, whether under the Penal Code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code.
(2) This rule is subject to the qualification that in respect of offences under other laws, that is to say, under laws other than the Indian Penal Code, if there be an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, such an enactment will prevail over the Code.
(3) The provisions of a special or local law will prevail over the provisions contained in the Code of Criminal Procedure unless there is a specific provision to the contrary.
14. The Army Act is a special law within the definition of Section 41 of the 1984 Indian Penal Code. The kind of punishment that has been imposed on the writ petitioner is specifically provided by Section 64(e) of the Army Act. As we have already found, the Army Act is a self-contained Code, prescribing the mode of investigation, trial, sentence, execution etc., that is to say, the law regarding the procedure to be followed in such an inquiry is found in the Army Act itself which confers jurisdiction on 'the Court-Martial in respect of the offences to be tried by the Court-Martial. Therefore, the provisions of the Criminal Procedure Code cannot be made applicable to the trial of cases by the Court-Martial, except to the extent to which the Army Act makes it applicable to them, that is, to a very limited extent. Section 152 of the Act reads that any trial by a Court-Martial under the provisions of the Act shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and the Court-Martial shall be deemed to be a Court within the meaning of Sections 345(1) and 346, Cr.P.C. Similar to S. 152 of this Act we have got Section 151 of the Air Force Act. Analogous to the first part of Section 152 of the Army Act, there are certain provisions in some other enactments such as Section 108(4) of the Customs Act, S. 40(4) of the Foreign Exchange Regulation Act, S. 63(4) of the Gold (Control) Act, etc.
15. Mr. U. N. R. Rao, taking advantage of the expression used in Section 152 of the Army Act, viz., that the trial by a Court-Martial under the said Act shall be deemed to be a Judicial proceeding and the Court-Martial shall be deemed to be a Court within the meaning of Sections 345(1) and 346, Cr.P.C. submits that the provisions of the Code of Criminal Procedure, inclusive of Section 428, in the absence of any specific exclusion thereof in the Army Act, could be applied to a trial by the Court Martial. We are unable to accept this submission. Merely because Section 152 of the Army Act states that the trial by the Court-Martial shall be deemed to be a judicial proceeding and that the Court-Martial shall be deemed to be a Court, the provisions of the Criminal Procedure Code inclusive of Section 428 thereof cannot be applied to' trials by a Court-Martial, for the reasons to be mentioned hereunder. We have already found that the Army Act, a special enactment, is a complete Code by itself prescribing a special procedure to be adopted in a trial by a Court-Martial, thereby excluding the application of the provisions of the Criminal Procedure Code. The expression "judicial proceeding" (as defined in Section 2(h) of the Code) includes any proceeding, in the course of which evidence is or may be legally taken on oath and the expression "Court" as defined in Section 3 of the Evidence Act includes all Judges and Magistrates and all persons except arbitrators legally authorized to take evidence, unless a contrary intention appears from the context. S. 345(1) deals with the procedure in certain cases of contempt committed in the presence of the Court. Section 131 of the Army Act and Rule 140 of the Army Rules speak about the administration of oath to witnesses. Therefore, the provisions of Section 152 is only introduced for the limited purpose of punishing a perjurer. Under Section 193, I.P.C., or a person who intentionally offers any insult or causes any interruption to a public servant sitting in a judicial proceeding (under Section 228, I.P.C.).
16. Now, let us examine the submissions of Mr. Rao that Section 428 can be invoked in favour of the accused in this case in view of Section 4(2), Cr.P.C. since the application of this provision is not specifically excluded. Touching on this argument, there are certain judicial pronouncements of various High Courts which we shall immediately refer to.
17. In F. R. Jesuratnam v. Chief of Air Staff (1976 Cri LJ 65 : ILR (1975) 2 Delhi 330), a contention was raised by the counsel for the petitioner therein, viz., by Mr. Rao himself, that the benefit of having the pre-conviction detention set off against the sentence of imprisonment awarded, which is availed of by a convicted civilian under section 428, Cr.P.C., should be made applicable to an army personnel, viz., a Squadron Leader in the Air Force in that case also; otherwise, it would amount to discrimination which is unconstitutional. It was held by the Bench to which the matter was referred by a learned single Judge (who later sat along with the other Judge on the Bench which decided this question), thus :
"......... Obviously the Code does not apply to him (petitioner therein) by reason of S. 5 thereof.
It is worth recalling that the petitioner does not say that any provision in the Act (Air Force Act) is to be struck down. All that is being stated is that the benefit conferred on civilians under section 428 of the Code should be made available to the petitioner. This may be possible only if Section 5 of the Code is struck down. It seems it would not be possible to strike down Section 5, because that provision is purely innocuous as it stands, it only provides for a special law, not being affected by the Code."
18. In P. P. Chandrasekaran v. Government of India (1976 Mad LW (Cri) 115) : (1977 Cri LJ 677), before a Division Bench of this Court consisting of Kailasam, J. (as he then was) and Paul, J., an argument was advanced that the writ-petitioner therein, viz., Chandrasekaran, an ex-officer of the Navy, who had been convicted and sentenced by a Court-Martial, was entitled to have a set-off of his pre-conviction suffered under naval custody by virtue of the provisions of Section 428, Cr.P.C. The Bench rejected that contention and dismissed the petition, observing thus :
"There is no such provision in the Navy Act. Section 5 of Criminal Procedure Code says that the Code is not applicable where any special form of procedure is prescribed by any special or local law. The naval law is a special law wherein an elaborate procedure is prescribed for conducting a trial and for execution of sentences ...... Therefore, it is clear that the sentence will have to be reckoned as commencing on the date on which the sentence was awarded. The Navy Act being a special enactment the application of Criminal Procedure Code has been excluded; the operation of Section 151 of the Navy Act is only applicable." A similar question arose in Subramonian v. O. C. Armoured Static Workshop (1979 Cri LJ 617), in which the learned single Judge of the Kerala High Court, disagreeing with the decision in Jesuratnam's case (1976 Cri LJ 65) (Delhi), held that the provisions of Section 428 of the Code could be applied to sentences for offences under the Penal Code passed by a Court-Martial under the provisions of the Army Act as well. According to the learned Judge, "the grant of set-off cannot be considered as in any manner affecting the provisions of the Army Act". Drawing inspiration from the above judgment, Mr. Rao would state that Section 428 can be applied in favour of an army personnel tried either for the offence under the Penal Code or for the offence under the Army Act. With great respect, we are unable to agree with the view expressed by the single Judge of the Kerala High Court in Subramonian's case (1979 Cri LJ 617). On the other hand, we are in full agreement with the Bench decisions of the Delhi High Court and of this Court, referred to above, and hold that Section 428, Cr.P.C., cannot be availed of by a person tried, convicted and sentenced by a Court-Martial under the Army Act, which is a self-contained Code, in respect of the trial, punishment, execution of sentences etc.
19. It one has to accept the argument of the learned counsel, then it would completely defeat the very object of the Army Act in the sense that an army personnel sentenced under the special Act can claim the various rights available to a civilian accused under the various provisions of the Criminal Procedure Code, such as Sections 235(2) and 248(2) contemplating that the accused shall be heard on the question of sentence before the sentences is passed, and also that he can claim the benefit of Sections 360 and 361, etc., The result of all this would be quite detrimental to the very object of the Army Act which is mainly based on the grounds of maintenance of discipline in the Army and other measures. The position would, of course, be different in the case of army personnel tried by ordinary criminal Courts for civil offences as provided under the Act, in which case such accused persons would be entitled to the benefit of Section 428, Cr.P.C.
20. Mr. Rao would criticize the plea taken in paragraph 6 of the counter wherein it is stated that Note 4 to Rule 53 of the Indian Army Act reading.
"The Court will also consider the length of time during which the accused has been in confinement, awaiting trial upon the present charge or charges" had been taken into consideration by the convicting authority, along with various other factors in deciding the quantum of punishment to be awarded to the petitioner in this case. According to Mr. Rao, as the Indian Army Act Rules, 1911, have been superseded by the present Army Rules, 1954, there could never be a consideration of Note 4 of the previous Rules, especially when such a note is not found in the corresponding Rule 64 of the present Rules, leave alone the legal sanctity to be attached to such a note. Mr. Jothi produced a copy of a printed form (statement as to character and particulars of service of accused), which document contains a record of the various factors taken into consideration before passing the sentence against a convicted person by the Court-Martial, wherein there is a column relating to the period of the confinement suffered by him. According to Mr. Rao, simply because the said form or sheet contains such a column, it cannot be said that the column has got a legal sanctity behind it. Under Chapter VII of the Act, various punishments ranging from stoppage of pay and allowances up to death have been provided and the Court-Martial is empowered to inflict any one of the sentences taking into consideration the nature of the offences committed and the punishments provided therefor. In this connection, it would be relevant to note that See. 144 of the Army Act requires the Court-Martial to take evidence of previous conviction and general character of the persons convicted. Sub-rule (1) of Rule 64, under the heading "Procedure on Conviction", reads :
"If the finding on any charge is 'guilty', then for the guidance of the Court, in determining its sentences, and of the confirming authority in considering the sentences, the Court, before deliberating on its sentence, shall, whenever possible, take evidence of and record the general character, age, service, rank, and any recognized acts of gallantry or distinguished conduct of the accused, any previous convictions of the accused either by Court-Martial or a criminal Court, any previous punishments awarded to him by an officer exercising authority under sections 80, 83, 84 or 85 as the case may be, the length of time he has been in arrest or in confinement on any previous sentence, and any military decoration or military reward, of which he may be in possession or to which he is entitled".
On a mere reading of the above Rule it is clear that the Court-Martial, while awarding the sentence on an army personnel on his conviction, is statutorily obliged to take into consideration the various factors mentioned in the said Rule. It follows that when there is a specific provision with regard to the factors to be taken into consideration while awarding the sentence, the person convicted by a Court-Martial cannot claim the benefit of Section 428, Cr.P.C., stating that the Army Act has not specifically excluded the application of Section 428, Cr.P.C., to persons convicted and sentenced by the Court-Martial. Further, it cannot be said that the Rules do not give any guideline to the Court-Martial in the matter of infliction of the quantum of punishment.
21. Mr. Rao next contended that the non-application of Section 428, which is a salutary provision introduced in the new Code, in the case of a person tried under the Army Act, is clearly violative of Arts. 14 and 21 of the Constitution of India.
22. Mr. Jothi, stoutly refuting the contention of Mr. U. N. R. Rao, as misconceived, would draw the attention of this Court to Article 33 of the Constitution of India and various decisions of the Supreme Court touching on this aspect. Article 33 of the Constitution, coming under Part III (Fundamental Rights), reads as follows :
"Parliament may by law determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them."
The Supreme Court, in Ram Sarup v. Union of India wherein the provisions of Section 125 of the Army Act were challenged as discriminatory and contravening the provisions of Article 14 of the Constitution and thus void, has explained the scope of the abovesaid Article as follows :-
"We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental right under Part III of the Constitution that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Art. 33 of the Constitution, made the requisite modification to affect the respective fundamental right. We are, however, of opinion that the provisions of S. 125 of the Act are not discriminatory and do not infringe the provision of Art. 14 of the Constitution."
23. The Supreme Court in Prithi Pal Singh v. Union of India , which arose under the provisions of the Army Act, observed thus :-
"Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in the exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legislate in respect of any item must be "referable to an entry in the relevant list. Entry 2 in List I : Naval, Military and Air Force and any other Armed Force of the Union, would enable Parliament to enact the Army Act and armed with this power the Act was enacted in July. 1950. It has to be enacted by the Parliament subject to the requirements of Part III of the Constitution read with Article 33 which itself forms part of Part III. Therefore, every provision of the Army Act enacted by Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Art. 33 as being enacted with a view to either restricting or abroading other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act ............ Therefore it is not possible to accept the submission that the law prescribing procedure for trial of offences by Court-Martial must satisfy the requirement of Article 21, because to the extent a procedure is prescribed by law and if it stands in derogation of Article 21, to that extent Article 21 in its application to the Armed Forces is modified by enactment of the procedure in the Army Act itself." See also Bira Kishore v. State of Orissa and S. P. Mittal v. Union of India .
24. Mr. Jothi cited a decision rendered by a Division Bench of the Jammu and Kashmir High Court in Mulkh Raj v. Union of India (1982 Cri LJ 1794), wherein it has been ruled :
"That apart, Section 164 (of the Army Act), assuming that it takes away any fundamental right of the accused, is still beyond the pale of challenge in view of Article 33 of the Constitution which says that the Parliament may by making a law restrict or even abrogate the fundamental rights conferred by the Constitution in their application to the members of the Armed Forces." A similar contention raised by Mr. Rao himself in Jesuratnam's case (1976 Cri LJ 65) cited above has been repelled by a Bench of the Delhi High Court, A Bench of this High Court consisting of K. B. N. Singh, C.J. and Padmanabhan, J., in M. K. Krishnamurthi v. Commander, Karnataka Sub-Area, Bangalore judgment of this Court in Writ Appeal No. 673/83 dated 14-9-1982) has turned down a contention raised before it that the procedure prescribed for the Court-Martial under the Army Act is itself violative of natural justice. It would not be out of place to mention here that the petitioner herein is not challenging the constitutional validity of any of the provisions of the Army Act. Hence, when the contention of Mr. Rao is tested in the light of the principles of law enunciated by the decision of the Supreme Court and the other decisions referred to above, we are of the view that the non-application of Section 428, Cr.P.C., to a convicted army personnel cannot be said to be violative of Arts. 14 or 21 of the Constitution.
25. In view of the foregoing discussions, we hold that the claim of the petitioner that he is entitled to the benefit of Section 428, Cr.P.C., cannot be accepted and there is no merit in the writ petition.
26. Accordingly, the writ petition will stand dismissed.
27. After the pronouncement of this judgment, Mr. U. N. R. Rao, the learned Counsel for the petitioner requests this Court to grant leave for preferring an appeal before the Supreme Court Leave refused.
28. Petition dismissed