S. Rangarajan, J.
(1) The question which has been referred to this Division Bench by one of us (V. D. Misra, J.) is 'whether a person undergoing imprisonment after being convicted under the Air Force Act- 1950, can be allowed to set off the period of pre-trial detention against the sentence of imprisonment ?'
(2) F.R. Jesuratnam (the petitioner), who was a Squadroni Leader, was placed under close arrest under the Air Force Act, 1950 (herein after called the Act) on 9-11-1974. He was tried by a General Court Martial which sentenced him to six months rigorous imprisonment on 4-3-1975. The sentence was duly confirmed under section 152 of the Act by the Chief of Air Staff on 8-4-19 75. The petitioner was thereafter sent to Tihar Jail for serving the sentence awarded to him.
(3) According to section 164 of the Act, the 'sentence shall, whether it has been revised or not, be reckone d to commence on the day on which the original proceedings were signed by the presiding officer'. The sentence awarded to the petitioner, thereforee, commenced to run on 4-3-1975.
(4) The contention of the petitioner is that the period of his detention from 9-11-1974 to 4-3-1975 should be set off against the sentence of imprisonment of six months awarded to him. There is not much controversy about the petitioner having been so detained, because he was not free to go wherever he liked despite the facilities granted to him during that period because of the rank he was holding. It is argued for the petitioner that the benefit of pre-trial detention, which is given to a civilian who is sentenced under the general law by reason of section 428 of the Code of Criminal Procedure, 1973 (hereinafter called the Code), should be apicable to the petitioner also ; if it did not, it is urged, it would amount to discrimination which is unconstitutional.
(5) Section 5 of the Code reads as follows : 'Nothing coatained 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 ether law for the time being in force'.
(6) The previous Code of Criminal Procedure of 1898 [section 1(2)] also provided that nothing in file said Code 'shall affect any special or local law' then in force.
(7) The Act is such a special law. The kind of punishment that was imposed on the petitioner had been specifically provided by section 73(e). The provisions of the Code had not been made applicable except to the extent to which the Code makes it applicable to it, i.e. to a very limited extent. Section 151 of the Act only provides for trial by a court martial under the provisions of the Act being deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code and the court-martial being deemed to be a court within the meaning of sections 480 and 482 of the Code of 1898. Under section 166 of the Act whenever any sentence of imprisonment is passed under the Act (save in certain cases which do not apply here) the same may be carried out by confinement in a military or air force prison or by confining in a civil prison, as may be directed by the confining officer or by such officer as may be prescribed. Section 175 of the Act empowers the Central Government to make rules, among others, for the labour of prisoners undergoing confinement therein, and for enabling such prisoners or persons to earn by special industry and good conduct, remission of a portion of the sentence. Section 176 of the Act. however, provides that rules made under section 175 shall not authorise corporal punishment to be inflicted for any offence, nor render the imprisonment more severe than it is under any law for the time being in force relating to civil prisons in India. This has obvious reference to the mode of imprisonment. Section 177 of the Act provides for perdon and remission of sentences with which we are not concerned. It is common ground, that no such rules have been made under section 175.
(8) So far as section 428 of the Code is concerned it has been held in B. P. Andre v. Superintendent, Central Jail, Tihar : 1975CriLJ182 that the said section is absolute in its terms and that it provides for set off of the pre-conviction detention of an accused person against the term of imprisonment imposed on him on conviction, whatever be the term of imprisonment imposed and whatever be the factors taken into account by the Court while imposing the term imprisonment. The Legislature having introduced no such exception, the Court cannot read it into the section, by a process of judicial construction, that no set off of su ch pre-conviction detention would he permitted if the same had been already taken into account by the Court while imposing the term of imprisonment on conviction.
(9) In the present case, it is stated in the affidavit of Air Commodores H. S. Keshub, Director Personal Services, Air Headquarters, filed. in opposition to this petition, that the court martial, when deliberating on the sentence, took into consideration the fact that the petitioner had been in custody awaiting trial and awarded the sentence of six. months imprisonment keeping in mind the aforesaid information. Though the concerned records are not before the Court the said averment in the affidavit of Air Commodore Keshub has not been repudiated. This petition will, thereforee, have to be decided on the Footing that the period the petitioner had been in custody awaiting trial had been taken into account while awarding the sentence of six months imprisonment.
(10) It has been contended for the petitioner that the non-extension of the benefit given under section 428 of the Code, as interpreted by the Supreme Court, to the petitioner amoun to discrimination against persons, like him, who are subject to the Act and that not only Articles 14 and 21 but also Article 33 of the Constitution have been violated. While Article 14 prevents the state denying any person equality before the law or equal protection of the law Article 21 places an embargo on a person being deprived of his life or personal liberty except according to the procedure prescribed by law. The petitioner contends that he has been treated unequally and has been discriminated against because the benefit, which has been granted generally to those civilians convicted by courts, under section 428 of the Code, has not been given to him.
(11) Article 33 of the Constitution, which is also invoked by the petitioner, reads as follows :
'PARLIAMENTmay be 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'.
(12) The scope of the said Article was explained by Reghubar Dayal, J. in Ram Sarup v. Union of India : 1965CriLJ236 as follows :
'WEagree 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, the 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.'
(13) The petitioner, it may be noticed, is not challenging any provision of the Act- Besides, the averment in the return, referred to above, that the period of detention prior to trial by the court martial was taken into account while imposing the sentence of six months implisonment, is one pertaining to the maintenance of discipline of those subject to the Act.
(14) The most formidable difficulty in the way of the petitioner, as we sec it, is that the petitioner, on whom the burden lies heavily, has not been able to show how not giving him the benefit of pretrial detention set off is discriminatory merely because civilians are now getting such a benefit under section 428 of the Code. The petitioner cannot say, in such a context, that all that he is asking for is that the jail authorities must compute the period of imprisonment imposed by the court martial, under section 428; obviously the Code does not apply to him by reason of section 5 thereof. The Act is seen to be more lenient in some respects to persons subject to it even as in some areas they may be more disadvantageously placed. When this is so-and this was not and could not be denied-we fail to see how the petitioner could seek to compare himself with civilians in any area where he complains of being more disadvantageously placed. In no view of the matter does the argument of discrimination seem to have any force.
(15) Even in the view that there is or could be any discrimination Mr. LJ. N. R. Rao, learned counsel for the petitioner, has not been able to tell us, despite our questioning him repeatedly, the mechanics by which he could get the relief which he seeks, namely, a direction setting the petitioner free before the expiry of the sentence of six months imposed by the Court Martial. It is worth recalling that the petitioner does not say that any provision in the Act, has 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. We are only indicating ^n additional difficulty with which the petitioner is confronted, a difficulty which his counsel would not even attempt to get over except to say 'if there is any discrimination anywhere set the petitioner free'. It is, however, needless to pursue this aspect further.
(16) In the result there is no merit in this petition which is dismissed accordingly.