Sunday, February 18, 2018

Advantage of set-off unavailable to Indian Air Force personnel

This refers to Economic Times news item “CJI Dipak Misra seeks Attorney General’s aid to tweak court martial laws for Indian Air Force.” The issue relates to an anomaly in law which allows court-martialled army or navy personnel a set-off of their pre-trial custody period against their jail terms, but not air force personnel because successive governments have failed to insert a clause to this effect in the Air Force Act.

First the background: In 1973 the Criminal Procedure Code (Cr PC) was passed by the Parliament replacing the Act of 1898.  A new section 428 stating that the period of detention undergone by the accused to be set off against the sentence of imprisonment was incorporated in it. This provision was made on the recommendations of the Joint Committee of Parliament which was of the view that in many cases an accused person is made to suffer jail life for a period out of proportion to the gravity of offence or to the punishment provided by a statute. In some cases, the sentence imposed is a fraction of the time spent by the accused as under-trial prisoner. This provision allowed setting-off of the period of detention undergone as an under-trial prisoner against the sentence of imprisonment was meant to mitigate suffering of an accused. The Amendment Act of 1978 further amended s. 428 with a view to making it clear that it did not apply to imprisonment in default of payment of fine. In order to claim benefit of set-off under s. 428 two essential conditions are required to be fulfilled: (i) the accused-claimant has on conviction been sentenced to imprisonment for a term, and (ii) the claimant –accused has undergone detention during investigation, enquiry or trial before the date of conviction. However, no such amendment was introduced in the three services Acts (i.e. the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957).

High Courts on set-off: There was a divergence of opinion between various High Courts whether the provision of set-off contained in s. 428 of the Cr PC was applicable to persons sentenced to undergo imprisonment by a court martial under the services Acts. The High Courts of Madras (PP Chandrasekharan v. Union of India 1977), Delhi (Sqn Ldr F R Jesuratnam v Chief of the Air Staff, 1976) and Punjab & Haryana (RL Sharma v. Union of India 1975) had taken a view that the benefit of s. 428 of the Cr PC cannot be claimed by persons convicted by court martial. A single judge of the Kerala HC (S Subramanian v. Union of India 1979) and a Division bench of the Calcutta HC (AS Bhisht v Union of India, 1986) had taken a contrary view.
The Supreme Court: Finally the Supreme Court in Ajmer Singh v. Union of India [1987 SC 1646] resolved the conflict by holding that the three service Acts (Army Act, 1950, Air Force Act, 1950 and the Navy Act 1957) constitute special law conferring special jurisdiction and powers on court martial and prescribing a special form of procedure for trial of offences under these Acts. Section 428 of the Cr PC contains an intrinsic indication that the provision of set-off cannot be claimed by persons convicted and sentenced by court martial. The reason being that section 5 of the Cr PC renders the provisions of the Code inapplicable in respect of all matters covered by a special law. Section 5 of the Cr PC provides: “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.” The Supreme Court approved the decision of the Madras, Delhi, and Punjab & Haryana HCs and overruled the decisions of the Kerala and Calcutta HCs. In Ajit Kumar v Union of India 1988, the provision of set-off was reaffirmed by the Supreme Court.
The Army HQ proposed an amendment to the Army Act to incorporate the provision of s. 428 of Cr PC. Thus in 1992, through an Amendment Act, section 169A was added in the Army Act. It provided:
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.
There were a few other amendments introduced in the Army Act by this Amending Act of 1992. For instance, it omitted the “Field Punishment” from the Act [s. 80(j)] and also provided that the court martial is to give brief reasons in support of findings [amendment to Army Rule 62(a)]. The Navy Act incorporated the provision of set-off through Amendment Act of 2005 [(section 151 (3)].
In India, there service HQs operate independently. The Air Force was perhaps not aware of the amendments in the Army Act till the Amending Act of 1992 was passed by the Parliament. The reason why the provisions of set-off have not yet been introduced in the Air Force Act is perfunctory approach of the officials and their superiors who are expected to take up the amendment to the Act. I remember that in one of the informal discussions, the JAG (Air) had stated that the judge advocates are aware about the provision of s. 428 of the Cr PC. Further, the trial Judge Advocates should in turn ensure that the members of courts martial keep the provision in mind while awarding sentence. This could be one reason why Air Force has still not gone for incorporating provisions of set-off in the Air Force Act. Unfortunately, the “Field Punishment” still exists under the Air Force Act.
In the three services, it is a considered opinion that the Judge Advocate Generals followed by the Staff Officers’ Committee (the Committee consisting of the Adjutant General of the Army, Air Officer-in-Charge Administration of the Air Force and the Chief of Personnel of the Navy) would study and recommend changes in the military legal system. Unfortunately, the personnel of the armed forces are not trained in drafting law. This is the task of a Committee headed by Parliamentarian and the Ministry of Law and Justice.
There are many more lacunas and differences in the three services Acts. On many occasions, I have taken up the issue of removing anomalies in the services Act with the Parliamentary Standing Committee and also petitioned Rajya Sabha, but unfortunately response has not been encouraging. Hopefully, with the Supreme Court taking cognizance of “one” such lacuna in the Air Force Act, a thorough revision of the three services Act would be undertaken by the Government.

1 comment:

  1. Many thanks to Wg Cdr (Ret) Jha for this helpful explanation.


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