BIJAYA CHANDRA PATRA Vs. THE COMMANDING OFFICER AND ORS.
HIGH COURT OF GAUHATI
Bijaya Chandra Patra
The Commanding Officer And Ors.
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R.K. Manisana Singh, J. -
(1.)THIS is a petition relating to set off under Section 482 Code of Criminal Procedure of the prior detention under the army custody before the conviction and sentence under the Army Act.
(2.)IT is stated in the petition that a general Court -martial, on 16.12.1982, convicted the Petitioner and sentenced him to suffer R.I. for 10 (ten) years under Sections 304 and 326, IPC read with Section 69 of the Army Act. It is also stated in the petition that he was kept in the army custody as under -trial prisoner for a period of 8 (eight) months and one day in connection with the case before conviction.
The relevant provisions are Sections 167 and 169 of the Army Act and Section 5 of the Code of Criminal Procedure. Under Section 167 of the Army Act, the term of sentence of imprisonment awarded by a Court -martial shall be reckoned to commence on the day on which original proceedings were signed by the presiding officer or, in the case of summary Court -martial, by the Court. Section 169 of the Army Act relates to the execution of sentence of imprisonment. Under Section 169 of the Army Act, the sentence shall be carried out by confinement in a military prison or a civil prison as provided thereunder. Section 5 of the Code saves special or local laws unless there is any "specific provision to the contrary".
(3.)IN P.P. Chandrasekaran v. Union of India : 1977 Cri.L.J. 677 (DB), the Madras High Court was construing Section 151(1) of the Navy Act, the language of which is substantially the same as that of the Section 167 of the Army Act, and has held that the Navy Act is a special enactment within the meaning of Section 5 of the Code, therefore, the application of the Code is excluded; and that the Navy Act prescribes procedure for trial and execution of sentence and as such, a convict cannot claim the benefit of Section 428 of the Code.
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