Andhra HC (Pre-Telangana)
M. Chenchu Rami Reddy vs General Court Martial Of Ex-Army Eme ... on 23 April, 1994
Equivalent citations: 1994(2)ALT68, 1994(2)ALT(CRI)103
ORDER J. Eswara Prasad, J.
1. The petitioner joined the Indian Army on 29-9-1975 and he was serving as Sepai/Clerk (GD) in the combined work shop, EME Centre, Secunderabad. He applied for casual leave for 20 days on 12-5-1988 and did not report to duty by 31-5-4988 when the leave expired. The petitioner was apprehended on 20-9-1988 by the Civil Police and was handed over to the Army authorities. The General Court Martial was convened on 10-9-1990 and the petitioner pleaded guilty of the charges of desertion. The General Court Martial convicted the petitioner and imposed a sentence of 7 years rigorous imprisonment. The petitioner questions the sentence of imprisonment in this writ petition.
2. The learned Counsel for the petitioner submitted that subsequent to the filing of the writ petition, the Army Act, 1950 was amended by inserting Section 169-A of Army (Amendment) Act, 1992 and in accordance with the said provision, the period during which the petitioner spent in Civil or Military custody during investigation, inquiry or trial of the case shall be set off against the term of imprisonment imposed upon him. W.P.M.P. No. 7955/1994 was filed by the petitioner for directions to the respondents to extend the benefit of set off provided under Section 169-A of the Army Act. The learned Counsel for the petitioner submits that the amendment is applicable to the petitioner and relied upon the decision in MER Dhana Sida v. State of Gujarat, and contended that the Supreme Court held that the operation of Section 428 Cr.P.C. which is in pari materia with Section 169-A of the Army Act can be extended to persons who were convicted prior to coming into force of the Amendment act.
3. In reply, Sri T. Ramulu, learned Standing Counsel for respondents contended that Section 169-A of the Army Act is prospective in operation and cannot be made applicable for convictions which are already made before the coming into force of the Act. He contends that the decision of the Supreme Court referred to above is not relevant while considering the applicability of Section 169-A of the Army Act and whether it is retrospective or prospective. He contends that the contention of the petitioner that the period spent by him in civil or army custody during investigation should be set off was considered and was rejected by the Court martial.
4. In order to appreciate the rival contentions of the learned Counsel, it is necessary to set out Section 169-A of the Army Act, 1950 which is as follows.
"169-A: Period of detention undergone by the accused to be set off against the sentence of 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 find, the period spent by him in Civil or Military custody during investigation, enquiry 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."
5. This provision does not say whether its operation is either retrospective or prospective. It only speaks of the setting off the term already spent by the accused in Civil or Military custody during investigation, inquiry or trial against the imprisonment or sentence imposed upon him by the Court Martial. Section 428 Cr.P.C. reads as follows:
"Period of detention undergone by the accused to be set off against the sentence of imprisonment -
Where an accused person has, on conviction, been sentenced to imprisonment for a term (not being imprisonment in default of payment of fine) the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him."
6. A reading of both Section 169-A of the Army Act and Section 428 Cr.P.C. would show that they are in pari materia excepting for the words "sentence of Court martial" and "or Military custody". The rest of the wording of both the provisions is similar in nature.
7. Section 428 Cr.P.C. fell for consideration before the Supreme Court in the aforesaid decision and the question whether the provision is prospective or retrospective was considered. It was held that "where an accused person has been convicted and he is still serving his sentence at the date when the new Code of Criminal Procedure came into force, irrespective of the fact that whether the order of conviction was made prior to the introduction of the Code of Criminal Procedure, 1973, Section 428 would apply and he would be entitled to claim that the period of detention undergone by him during investigation inquiry or trial of the case would be set off against the term of imprisonment imposed against him and he should be required to undergo only the remainder of the term." The Supreme Court rejected the contention that such a construction of Section 428 would introduce a dichotomy.
8. It is but proper to interpret Section 169-A of the Army Act which is in pari materia with Section 428 Cr.P.C. in the same manner in which the Supreme Court has interpreted the later provision of law which also gave the same benefit to a person convicted. In the absence of anything to indicate that Section 169-A of the Army Act is not retrospective in operation by the language of the section, it follows that the provision which deals with an accused person should be interpeted in favour of the accused.
9. For the aforesaid reasons, I hold that Section 169-A of the Army, Act, 1950 applies to persons who are already convicted by the date of the commencement of the amended provision or to be convicted thereafter, equally. W.P.M.P. No. 7955/1994 is allowed and the petitioner is permitted to take the alternative plea in the grounds.
10. In view of the above, the writ petition is partly allowed. The respondents are directed to extend the benefits of set off provided under Section 169-A of the Army Act, by setting off/the period spent by the petitioner in civil or Military custody during investigation, inquiry or trial against the term of imprisonment imposed upon him by the General Court Martial.
11. The Writ Petition is partly allowed as indicated above, and dismissed in other respects. No order as to costs.