Holding

Illegal pre‑trial detention beyond the statutory period does not invalidate the DCM's jurisdiction or conviction, but the compensation for such detention must be reasonable, warranting an increase to Rs 30,000.

Summary

Bhuwneshwar Singh, a sepoy, was dismissed from service and sentenced to four months' rigorous imprisonment by a District Court Martial (DCM). He challenged the dismissal, conviction, and sentence in the Calcutta High Court, alleging violations of Army Rules and illegal pre‑trial detention beyond three months without Central Government approval. The High Court upheld all his contentions except for the illegal detention, for which it awarded Rs 1,000 compensation; the Division Bench affirmed this. On special leave, the Supreme Court held that the illegal pre‑trial detention did not vitiate the DCM's jurisdiction or the conviction, but the compensation of Rs 1,000 was grossly inadequate, and increased it to Rs 30,000. The Court also clarified that Section 428 of the CrPC does not apply to court‑martial sentences, but the later‑introduced Section 169A of the Army Act would have allowed set‑off if the offence occurred after 1992. The appeal was dismissed, with the enhanced compensation order.

Issues considered

The legality of the appellant's pre‑trial detention beyond three months under Sections 101‑103 of the Army Act and Rule 27 of the Army Rules.
Whether the illegal pre‑trial detention vitiates the jurisdiction or findings of the District Court Martial.
Whether the compensation awarded by the High Court for illegal detention was adequate.
Whether the period of pre‑trial detention can be set off against the sentence under Section 428 of the CrPC or Section 169A of the Army Act.

Legislation cited

Army Act, 1959s. 101, s. 102, s. 103, s. 169, s. 169A
Army Rules, 1964s. Rule 22, s. Rule 27, s. Rule 71
Code of Criminal Procedure, 1974s. 428
Constitution of Indias. Article 13, s. Article 21, s. Article 32, s. Article 39A

Subjects

court martialpre‑trial detentionillegal detentioncompensationArmy ActArticle 21legal aidparties in personSection 101‑103Rule 27Section 169AArticle 32Article 39A

Judgment

A BHUWNESHWAR SINGH
v.
UNION OF INDIA AND ORS.

SEPTEMBER 1, 1993
..
_,

B [J.S. VERMA AND DR. AS. ANAND, JJ.]

Anny Act, 1959: Sections 101to103 and 169A:

Anny Rules, 1964-Rules 22, 27, 71-Cowt martial case~Expeditious
C disposaf-Necessity f01'-Minimising of pre trial detention-Essentiality
of-Pretrial illegal detention-Not a jurisdictional defect vitiating trial or
finding~Proper and reasonable compensation to be awarded for such deten-
tion.

Constitution of India 195(}-Articles 32, 39A and 13fr-Petitions by
D parties in person-Necessity for scrutiny and only those certified 'compet~nt'
•
to assist Court in 'person' to be evolved-Reference to Legal Aid and Advice
Board/Supreme Courl Senior Advocates Free Legal Aid Society utilisation of

Practice and Procedure-Supreme Court-Proceedings by parties in
E person-Scrutiny by Committee/Authority constituted by the Court-Necessity
for-Only these certified 'competent' to assist Court to be pennitted.

The appellant, a sepoy in the Army, pursuant to his trial on various
charges by the District Court Martial was dismissed from service, and also
sentenced to suffer rigorous imprisonment for four months'.
F
He filed a Writ Petition in the High Court challenging the dismissal,
conviction and sentence. Apart from disputing the factual foundation of
the charges and the unsatisfactory nature of evidence to establish the same
he also alleged violation of Rule 22 of the Army Rules; denial of his right
to be represented by a Defending Officer at the DCM; defect in the
G promulgation of the findings and sentence contrary to the mandate of Rule
71 of the Army Rules; the defect in signing of the warrant for commitment
to civil prison by the officiating Commander instead of the Head of,the
Unit, and viOlation of Rule 27 of the Army Rules read with sections 101-103
of the Army Act as regards his pre-trial detention beyond the permissible
H period. A plea was also raised that the period undergone in custody, before
56
BHUWNESHW AR v. U.O.I. 57

the tri:l! by DCM was required to be set off against the sentence imposed A
by virture of the provisions of Section 428 of the Code of Criminal
Procedure, 1974.

All the aforesaid contentions were considered and rejected by the
Single Judge, except the grievance concerning pre-trial detention beyond
the period prescribed under Section 101-103 of the Army Act read with B
Rule 27 of the Army Rules. The Judge found that the appellant had been
detained beyond a period of three months, before the convening of the
DCM without obtaining approval of the Central Government which
rendered his detention beyond the period of three months illegal, and
accordingly directed the respondents to pay a sum of Rs. 1,000 by way of C
compensation to the appellant for his illegal detention of about one month,
beyond the permissible period of three months.

The appellant unsuccessfully pursued the matter by way of an appeal
before the Division Bench of the High Court, which confirmed the findings
recorded by the Single Judge and dismissed the appeal. D

The appellant appealed to this Court, submitted in person and in
Hindi, that this Court should reappraise the evidence and accept his
version regarding the incident and set aside his conviction and sentence,
undettered by the findings recorded by the District Court Martial, which E
were confirmed by the confirming authori~y and against which tbe
departmental appeal had also failed. He reiterated also the same grounds
which he had urged before the High Court.

Dismissing the appeal, but enhancing the compensation for pre trial
illegal custody of the appellant, the Court F

HELD : 1.(a) Taking note of the increase in the number of cases in
which parties appear in person, it is fe!t that a stage has now been reached
when this Court, on the administrative side, is required to consider the
desirability of providing some procedure to scrutinise the petitions and G
screen the parties, appearing in person, and only such of the parties who
are certified by an authority/committee as "competent" to assist the Court
in person, may, with the leave of the Court, be permitted to argue in
person. [62-G-H; 63-A]

1.(b) Those of the litigants, who are not so certified, or those to whom H
58 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A leave is not granted by the Court, should be referred to the Legal Aid and
Advice Board or the "Supreme Court Senior Advocates Free Legal Aid
Society", a voluntary body offering assistance, in appropriate cases, ir-
respective of the financial position of the litigant. [63-B]

1.(c) ASsistance by the lawyers aprart from providing proper assis-
B tance to the Court, would ultimately tend to be in the interest of the litigants
themselves. It would also take care of preventing objectionable and unpar-
liamentary language in the pleadings, which some of the 'parties in person'
permit themselves the liberty of indulging in; not being familiar with the
court craft and the bounds of law within which parties must formulate their
c pleadings in proper language. Such a course would advance public interest
while safeguarding the individual interest also. [63~C]

2. In an appeal under Article 136 of the Constitution of India this
Court cannot be requested to reappraise the evidence and examine whether
the incident complained of took place in the manner suggested by the
D appellant or the prosecution. (64-A]

3. The charges were heard on 29.3.1989 by Lt. Col. R.S. Sidhu, the then
Commanding Officer, in the presence of the appellant who was afforded
ample opportunity to cross-examine the prosecution witnesses. It was only
after considering the evidence so recorded, that the Commanding Officer
E
ordered the recording of summary of evidence. In the counter affidavit filed
by the respondents in the High Court, it was clearly brought out that the
requirements of Rule 22 had been complied with. The appellant was unable
to point out any infirmity in the findings recorded by the Single Judge or the
Division Bench of the High Court on this aspect. (64-C-D]
F
4. The appellant was represented by Major S.K. Sharma as his
defence counsel. Not only did the appellant agree to the appointment of
Major Sharma but the said Defending Officer cross-examined the wit-
nesses on behalf of the appellant and also filed written submission at the
G close of the address. The appellant, during the DCM proceedings did not
raise any objection to be defended by Major S.K. Sharma. There has, thus,
been no denial of providing proper defence assistance to the appellant
during the Court Martial proceedings. (64-F-G]

5. Under Section 169(2) of the Army Act read with Army Rule 166 a
H warrant for the committal of a person sentenced by court martial to a civil
BHUWNESHWAR v. U.O.l. 59

prison is required to be forwarded and signed either by the Commanding A
Officer or such other Officer as may be prescribed. Respondent No. 4, at
the relevant time was performing the duties as an officiating Commanding
Officer of the Unit to which the appellant was attached. Respondent No.
4, was therefore fully competent to sign the warrant. [65-B-C]

6. The record produced before the High Court, establishes that the B
sentence was in fact promulgaed together with its confirmation on
18.10.1989 by letter of 3/4 Gorkha Rifles No. 425287-lK/TCM/BS/A dated
18.10.1989, addressed to the Head Quarters Calcutta, Sub-Area with a copy
for record to the Defence Security Corps and 376 DSC Platoon. There has,
thus, been no defect in the promulgation of the findings and the sentence. C
[65-E]
7. The basic object of sections 101-103 of the Act read with Rule 27
of the Rules appears to be to dispose of court martial cases expeditiously
and to minimise the period of pre-trial detention. The object is both
salutary and )audible. [66-E] D

8. The appellant in the instant case was taken into custody on 28th
March, 1989 and the District Court Martial was convened on 25th July,
1989. He, therefore, remained in custody for more than three months prior
to his trial by the DCM. No sanction or approval of the Central Govern- E
ment for the detention of the appellant beyond a period of three months
was obtained and, therefore, the safeguards provided for the Sections
101-103 of the Army Act read with Rule 27 of the Rules were respected in
their breach, without any explanation being furnished for non- compliance
with the requirements of those provisions. [66-F-G]
F
9. The Single Judge, however, held that the "illegal detention" of the
appellant did not vitiate his "detention" and came to the conclusion that
the appellant deserved to be awarded compensation for his ill~gal deten-
tion and awarded Rs. 1,000 as compensation to him, and the Division
Bench concurred with the findings. [67-C]
G
10. The continued pre-trial detention of the appellant for a period
beyond three months was on account of the fact that there was delay in the
convening of the District Court Martial. No malafides have been alleged,
let alone established, for detaining the appellant beyond a period of three
months, without obtaining the approval of the Central Government. [67-E] H
60 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 11. The authorities appear to have been negligent and have shown
scant respect for tht provisions of the Army Act and the Rules, which is
objectionable. Those who feel called upon to deprive other persons of their
liberty in the discharge of their duty, must strictly and scrupulously
observe the norms and rules of law. [67-F]

B 12. The object of Sections 101-103 of the Army Act read with Rule 27
of the Army Rules is that a person charged under the Act should not be
unnecessarily deprived of his freedom on the ground that he is accused of
an offence triable by Court Martial. The protection granted by the
provisi.on would become meaningless if one who is supposed to be the
C protector of the person concerned acts callously and unconcerned with the
rights available to such a person. [67-G-H]

13. It is not only desirable but necessary that. the authorities under
the Army Act strictly follow the requirements of the Act and the Rules. The
authorities cannot be permitted to deal with the liberty of a person subject
D to the Army Act, in a casual manner and cannot be allowed by their
commission or omission, to frustrate the object of speedy trial by a Court
Martial. [68-A-B]

14. Pre-trial illegal detention however, does not effect the jurisdiction
E of the DCM validly convened, and such an illegal detention would not
amount to a jurisdictional defect vitiating the trial or the findings. [68-G]

15. Since the period of pre-trial detention is not set off against the
sentence of imprisonment under Section 428 Cr.P.C., the Parliament with
a view to avoid hardship to persons convicted by Court Martial, has in
F 1992 incorporated in the Army Act itself a provision ·Similar in terms as
Section 428 Cr. P.C. [71-B]

16. Section 169A of the Army Act would, therefore, after 1992
mitigate the hardship of the persons sentenced by the Court Martial under
G the Army Act. However, the benefit of this provision is not available to the
appellant, because he was sentenced to suffer imprisonment long before
this amendment came into force in 1992. [71-E]

17(a) The award ofcompensation of Rs. 1,000 by the High Court for
the established illegal detention of the appellant for about one month or
H so, is grossly inadequate and hopelessly unimaginative. After having
BHUWNESHWAR v. lJ.0.1. [DR.ANAND,J.] 61

recorded the findings that the appellant had been illegally detained from A
29th June, 1989 to 25th July, 1989, the High Court was expected to take a
more realistic view of the deprivation of the personal liberty of the appel-
lant, rather than indulge only in lip service, by awarding a paltry sum of
Rs. 1,000 as compensation. [68-H, 69-A]

17.(b) The enhancement of compensation from Rs. 1,000 to Rs. B

.. 30,000 payable by the respondent to the appellant for his pre trial illegal
custody is therefore ordered. [71-F]

Nilabati Behera v. State of Orissa & Ors., [1993] 2 SCC 746; S.N.
Mukherjee v. Union of India, [1990] 4 SCC 594 and Ajmer Singh and Ors. C
v. Union of India and ors., [1987] 3 SCC 340, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 279 of
1993.

From the Judgment and Order dated 1.4.92 of the Calcutta High D
Court in F.A.M.T. No. 3636/91.

Appellant-in-person.

V.R. Reddy, Additional Soliciter General, Girish Chander and Ms.
Sushma Suri for the respondents. E
The Judgment of the Court was delivered by

DR. ANAND, J. This appeal by special leave is directed against the
judgment of the Division Bench of the Calcutta High Court in FMAT No.
3636/91 decided on 1st April 1992. F
Pursuant to his trial by the District Court Martial, on various charges,
the appellant, who was a sepoy in the Indian Army, was dismissed from
service and also sentenced to suffer rigorous imprisonment for four
months. Through a writ petition in the High Court of Calcutta, he chal-
lenged his dismissal, conviction and sentence. In the writ petition, apart · G
from disputing the factual foundation of the charges and the unsatisfactory
nature of evidence to establish the same he also alleged violation of Rule
22 of the Army Rules; denial of his right to be represented by a Defending
Officer at the DCM; defect in the promulgation of the findings and
sentence, contrary to the mandate of Rule 71 of the Army Rules; the defect H
62 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A in the signing of the warrant for commitment to civil prison, by the
officiating commander instead of the Head of the Unit and violation of
Rule 27 of the Army Rules read with Sections 101-103 of the Army Act as
regards his pre-trial detention beyond the permissible period. Besides, the
appellant also raised a plea that the period undergone by him in custody,
before the trial by DCM was required to be set off against the sentence
B imposed on him by virtue of the provisions of Section 428 of the Code of
Criminal Procedure 1974. All the contentions reaised by the appellant were
considered by the learned Single Judge who rejected the same, except the
grievance concerning his pre-trial detention beyond the period prescribed
under Sections 101-103 of the Army Act read with Rule 27 of the Army
c Rules. The learned Single Judge found that the appellant had been
detained beyond a period of three months, before the convening of the
District Court Martial, without obtaining approval of the Central Govern-
ment which rendered his detention beyond the period of three months
illegal. The learned Single Judge accordingly directed the respondents to
D pay a sum of Rs.1000 by way of compensation to the appellant for his illegal
detention of about one month, beyond the permissible period of three
months. The appellant unsuccessfully pursued the matter by way of an
appeal before the Division Bench of the High Court, which confirmed the
findings recorded by the learned Single Judge and dismissed the appeal.

E The appellant has appeared in person before us and made his
submissions in Hindi, not being familiar with the cburt language. We
suggested to him that we could provide him the assistance of an advocate
through the Legal Aid Board or request one of the advocates to appear
for him, amicus curiae, without any financial burden on him, but the
F appellant did not want the assistance of any counsel and insisted on arguing
the matter himself. Not being conversant with the procedure of the Court
or the law, the appellant took time to argue on matters, which were strictly
speaking not relevant, and in spite of our advising him to allow us to
appoint a counsel for him, in his own interest, he remained adamant and
G therefore lot of judicial time, which could have been utilised for other work,
was spent by us in trying to grasp his grievances, in which task, Mr. Reddy
the learned Additional Solicitor General gave us his valuable assistance.
Taking note of the increase in the number of cases in which the parties
..'
appear in person in this Court, we feel that a stage has now reached when
this Court, on the administrative side, is required to consider the
H desirability of providing some procedure to scrutinise their petitions and
BHUWNESHWAR v. U.O.I. [DR.ANAND,J.) 63

screen the parties, appearing in person, and only such of the parties who A
are certified by an authority/committee as "competent" to assist the Court
in person, may, with the leave of the Court, be permitted to argue in
person. Those of the litigants, who are not so certified, or those to whom
leave is not granted by the Court; should be referred to the Legal Aid and
Advice Board or the "Supreme Court Senior Advocates Free Legal Aid
B
Society", which is a voluntary body and offers assistance, in appropriate
cases, irrespective of the financial position of the concerned litigant. Apart
from providing proper assistance to the Court, the assistance by the lawyers
wouid ultimately tend to be in the interest of the litigants themselves. It
would also take care of preventing objectionable and unparliamentary
language in the pleadings, which some of the 'parties in person' permit c
themselves the liberty of indulging in, not being familiar with the court craft
and the bounds of law within which the parties must formulate their
pleadings in proper language. Such a course would advance public interest
while safeguarding individual interest also. Our experience shows that
every advocate - senior, not so senior and junior - whenever requested by D
the Court to offer assistance has responded positively and generously and
therefore the interest of the 'party in person' who would be represented by
such a counsel would stand adequately protected. We say no more on this
aspect at this stage.

The appellant invited us to go through the evidence recorded by the E
Dic;trict Court Martial and examine the discrepancies appearing therein.
He disputed the correctness of the factual basis on which the proceedings
had commenced, for recording of the summary of evidence and the trial
by the District Court Martial.. Undettered by the findings recorded by the
District Court Martial, which were confirmed by the confirming authority F
and against which the departmental appeal had also failed, as well as the
judgments of the Single Judge and the Division Bench of the High Court,
the appellant insisted that we should reappraise the evidence and accept
his version regarding the incident and set aside his conviction and sentence.
We politely but firmly declined the invitation to reappraise the evidence
for testing the validity of the findings, as indeed it is not a case, nor was it G
the contention of the appellant in the High Court or before us, that the
findings of the District Court Martial were based on no evidence at all.
Both the Single Judge and the Division Bench of the High Court found
that the proceedings before the District Court Martial had been conducted
in accordance with law and that there was no defect in the appraisal of H

1
64 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A evidence by the District Court Martial. We agree, This Court cannot, in an
appeal under Article 136 of the Constitution of India, be requested to
reappraise the evidence and examine whether the incident took place in
the manner suggested by the appellant or the prosecution.

Both the learned Single Judge and the Division Bench of the High
B Court have considered the grievance of the appellant, based on the alleged
non-compliance with Rule 22 of the Army Rules which requires hearing of
the charge in the presence of the accused and found that Rule 22 had been
properly complied with. We agree. The charges were heard on 29.3.1989
by Lt. Col. R.S. Sidhu, the then Commanding Officer, in the presence of
c the appellant, who was afforded ample opportunity to cross-examine the
prosecution witnesses. It was only after considering the evidence so
recorded, that the Commanding Officer ordered the recording of summary
of evidence. In the counter affidavit filed by the respondents in the High
Court, it was clearly brought out that the requirements of Rule 22 had been
D complied with. The appellant was unable to point out any infirmity in the
findings recorded by the learned Single Judge or the Division Bench of the
High Court on this aspect of the case.

The grievance of the appellant that he was denied an opportunity to
be represented by a Defending Officer is wholly untenable. The High Court r
E also found it so. A perusal of the record reveals that though the appellant
had requested that one of the three officers named by him be nominated
as defence counsel, on being informed that none of those three officers
were available at the stat~on, and having been supplied with a list of the r

officers available at the station, he was represented by Major S.K. Sharma
p as his defence counsel. Not only did the appellant agree to the appointment
of Major Sharma but the said Defending Officer cross-examined the wit-
nesses on behalf of the appellant and also filed written submissions at the
close of the address. The appellant, during the proceedings in the District
Court Martial did not raise any objection to be defended by Major S.K.
Sharma. There has, thus, been no denial of providing proper defence
G assistance to the appellant during the Court Martial proceedings.

Both the learned Singl~ Judge and the Division Bench also did not
find any merit in the submission of the appellant that the warrant for his
committal to civil prison had not been signed by the competent autP.ority
H as envisaged by Section 169(2) of the Army Act. The appellant submitted

,
BHUWNESHWAR v. U.O.L [DR.ANAND,J.] 65

before us also that since, the warrant for committal of a persc,,1 sentenced A
by court martial, to a civil prison under Section 169(2) of the Army Act
read with Rule 166 of the Army Rules, is required to be signed and
forwarded either by the Commanding Officer or such other officer as may
be prescribed, but in his case had been signed by respondent no. 4, in spite
of the presence of the Commanding Officer in the unit, it was illegal. We
cannot agree. Under Section 169(2) of the Army Act read with Army Rule
B
166, a warrant for the committal of a person sentenced by court martial to
a civil prison is required to be forwarded and signed either by the Com-
manding Officer or such other Officer as may be prescribed. Respondent no.
4, at the relevant time was performing the duties as an officiating Com-
manding Officer of the Unit to which the appeallant was attached, as an c
officiating incumbent, and therefore, Respondent no. 4 was fully competent
to sign the warrant.

The grievance that there has been no promulgation of the findings
and sentence recorded by the DCM, as required by Rule 71 of the Army D
Rules is also without any merit. A perusal of the record, which was
produced before the High Court, establishes that the sentence was in fact
promulgated togetMr with its confirmation on 18.10.1989 as evidenced by
letter of 3/4 Gorkha Rifles No. 425287-lK/TCM/BS/A dated 18.10.1989,
addressed to the Head Quarters Calcutta, Sub-Area with a copy for record
to the Defence Security Corps and 376 DSC Platoon. There has, thus, been E ·
no defect in the promulgation of the findings and the sentence.

We, however, find good and genuine basis for the grievance of the
appellant that he had been detained beyond the permissible period, as
prescibed under Sections 101-103 of the Army Act read with Rule 27 of F
the Army Rules, before his trial by the DCM. This grievance had found
acceptance by the High Court also and the respondents have not ques-
tioned the finding of the High Court in that behalf in this Court either.

Section 101 of the Army Act provides that any person subject to the
Army Act charged with an offence may be taken into military custody, G
under orders of the superior officer. The method of arresting a person
subject to Army Act, however, is informal. Section 102 of the Act provides
that a Commanding Officer shall ensure that such a person is not detained
for more than 48 hours after the committal of such person into custody,
without the charge being investigated, unless investigation within that H
66 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A period appears to the Commanding Officer to be impracticable having
regard to the public service. In case the period of detention is to exceed
48 hours, Section 102(2) of the Act enjoins that the reasons thereof shall
be reported by the Commanding Officer to the General or other officer,
competent to convene a general or district Court Martial for the trial of
the person charged. In calculating the period of 48 hours, Sundays and
B other public holidays, are required to be excluded. Section 103 of the Act
l
then deals with the intervals between committal and the court martial and
provides that where a person remains in custody for a period longer than
8 days, without the Court Martial for his trial being ordered to assemble,
a special report giving reasons for the delay shall be made by the Com-
C mantling Officer and a similar report shall be forwarded at the interval of
every 8 days, till the Court Martial is convened or the person is released
from custody. The form in which the report is required to be made, every
8 days of the continued detention of such a person, is prescribed by Army
Rules 27. Sub-Rule 3 of Rule 27 lays down that the detention in military
D custody beyond 2 months of a person in whose case a court martial has
been ordered to assemble (before the commencement of the trial), would
require sanction of the Army Chief or any officer authorised in that behalf
with the approval of the Central Government and that the period of
detention in such a case may extend to a total period of three months but
not beyond. Rule 27(3)(ii) of the Rules then mandates that any detention
E beyond a period of three months, would require the approval of the Central
Government. The basic object of sections 101-103 of the Act read with
Rule 27 of the Rules appears to be to dispose of court martial cases
expeditiously and to minimise the period of pre-trial detention. The object
is both salutary and }audible. It is not disputed that in the instant case, the
F appellant was taken into custody on 28th March 1989 and the District
Court Martial was convened on 25th July 1989. The appellant, therefore,
remained in custody for more than three months prior to his trial by the
District Court Martial. No sanction or approval of the Central Government
for the detention of the appellant beyond a period of three months was
obtained and, therefore, the safeguards provided for in Sections 101-103 of
G the Army Act read with Rule 27 of the Rules were respected in their
breach, without any explanation being furnished for non-compliance with
the requirements of those provisions. The learned Single Judge noticed this
and observed : .

H "Therefore, the partitioner was kept in custody for more than 3
BHUWNESHWAR v. U.0.1. [DR. ANAND, J.] 67

months. Any detention beyond a period of 3 months requires the A
approval of the Central Government. There is nothing to show that
any approval of the Central Government has been obtained. 17tere-
f ore, I am of the view that the petitioner has been detained from 29th
June 1989 to 25th July 1989 illegally without any approval of the
Central Government. There is no explanation as to why no such
approval of the Central Government was taken."
B

(Emphasis ours)

The Single Judge, however, held that the "illegal detention" of the
appellant did not vitiate his "detention" and came to the conclusion that C
the appellant deserved to be awarded compensation for his illegal deten-
tion and awarded Rs. 1,000 as compensation to him. The Division Bench
concurred with the above findings. In the established facts and circumstan-
ces of the case, we agree with the findings recorded by the High Court that
the pre-trial detention of the appellant for a period beyond three months D
without the approval of the Central Government as required by Rules
27(3)(ii) of the Rules was illegal. Would this illegality vitiate the trial and
if not, is the compensation of Rs. 1,000 awarded by the High Court proper
and reasonable, is the question which now needs our attention ?

The continued pre-trial detention of the appellant for a period E
beyond three months was on account of the fact that there was delay in the
convening of the District Court Martial. No malajide have been alleged, let
alone established, for detaining the. appellant beyond a period of three
months, without obtaining the approval of the Central Government. The
authorities appear to have been negligent and have shown scant respect for F
the provisions of the Army Act and the Rules. That is objectionable. Those
who feel called upon to deprive other persons. of their liberty in the
discharge of their duty, must strictly and scrupulously observe the norms

- and rules of law. The object of Sections 101-103 of the Army Act read with
Rule 27 of the Army Rules is that a person charged under the Act should
not be unnecessarily deprived of his freedom on the ground that he is
accused of an offence triable by the Court Martial. The protection granted
G

to persons subject to the Ad by the above provision would become
meaningless if one who is supposed to be the protector of the person
concerned acts callously and unconcerned with the rights available to such
a person. H
68 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Keeping in view the limited nature of judicial review in matters
arising out of Court Martial proceedings, it is not only desirable but
necessary that the authorities under the Army Act strictly follow the
requirements of the Act and the Rules. The authorities cannot be per-
mitted to deal with the liberty of a person subject to the Army Act, in a
causal manner and cannot be allowed by their commission or omission, to
B frustrate the object of speedy trial as envisaged by the Act, of the persons
to be tried by a Court Martial. In our opinion, however, keeping in view
the object of the privisions of Sections 101-103 of the Act and Rule 27 of
the Rules, the illegal detention of the person charged under the Army Act,
for a period beyond the prescribed one, before commencement of his trial
C by the Court Martial, would neither vitiate the constitution of the District
Court Martial nor effect the trial held by the District Court Martial under
the provisions of the Army Act, much less render the conviction and
sentence recorded thereat thereat bad. The failure to prevent unnecessary
and prolonged custody prior to the trial by the Court Martial would not,
D in any way effect the Court Martial proceedings or render negatory the
findings of the District Court Martial or the General Court Martial, as the
case may be. Since, the proceedings of the District Court Martial were held
strictly in accordance with the provisions of the Army Act and the Rules
framed thereunder and do not suffer from any infirmity whatsoever, the
pre-trial illegal detention of the appellant for a period of about one month
E or so would not vitiate the finding of guilt and the sentence recorded by
the District Court Martial, which was confirmed by the confirming
authority and against which departmental appeal was dismissed by the
appellate authority and the challenge in the High Court failed. We, there-
fore, hold that for the failure of the authorities to obtain approval of the
F Central Government for detaining the appellant in custody, prior to his
trial by DCM, for a period beyond 3 months, would not vitiate his trial ·by
the DCM or otherwise effect his conviction and sentence. The pre-trial
illegal detention does not effect the jurisdiction of the DCM, validy con-
vened, and such an illegal detention would not amount to a jurisdictional

G
defect vitiating the trial or the findings.

We, however find that the award of compensation of Rs. 1,000 by the
-
High Courtfor the established illegal detention of the appellant, for about
one month or so, is grossly inadequate and hopelessly unimaginative. After
having recorded the findings that the appellant had been illegally detained
H from 29th June 1989 to 25th July 1989, the High Court was expected to
BHUWNESHWAR v. U.O.I. [DR.ANAND,J.] 69

take a more realistic view of the deprivation of the personal liberty of the A
appellant, rather than indulge only in a lip service, by awarding him a
paultry sum of Rs. 1,000 as compensation.

This Court in Nilabati Behera v. State of Olissa & Ors., [1993] 2 SCC
746, observed :
B
"This Court and the High Courts, being the protectors of the civil
liberties of the citizen, have not only the power and jurisdiction
but also an obligation to grant relief in exercise of its jurisdiction
under Articles 32 and 226 of the Constitution to the victim or the
heir of the victim whose fundamental rights under Article 21 of C
the Constitution of India are established to have been flagrantly
infringed by calling upon the State to repair the damage done by
its officers to the fundamental rights of the citizen, notwithstanding
the right of the citizen to the remedy by way of a civil suit or
criminal proceedings................................................. It is a sound
policy to punish the wrongdoer and it is in that spirit that the courts D
have moulded the relief by granting compensation to the victims
in exercise of their writ jurisdiction. In doing so the courts take
into account not only the interest of the applicant and the respon-
dent but also the interests of the public as a whole with a view to
ensure that public bodies or officials do not act unlawfully and do E
perform their public duties properly particularly where the fun-
.. damental right of a citizen under Article 21 is concerned."

The Court then opined :

"The public law proceedings serve a different purpose than the p
private law proceedings. The relief of monetary compensation, as
exemplary damages, in proceedings, under Article 32 by this Court
or under Article 226 by the High Courts for established infringe-
ment of the indefeasible right guaranteed under Article 21 of the
Constitution is a remedy available in public law and is based on
the strict liability for contravention of the guaranteed basic and G
indefeasible rights of the citizen. The purpose of public law is not
only to civilize public power but also to assure the citizen that they
live under a legal system which aims to protect their interests and
preserve their rights. Therefore, when the court moulds the relief
by granting "compensation" in proceedings under Article 32 or 226 H
70 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A of the Constitution seeking enforcement or protection of fun-
damental rights, it does so under the public law by way of penalis-
ing the wrongdoer and fixing the liability for the public wrong on
the State which has failed in its public duty ~o protect the fun-
damental rights of the citizen. The payment of compensation in
such cases is not to be understood, as it is generally understood
B in a civil action for damages under the private law but in the
broader sense of providing relief by an order of making 'monetary
amends' under the public law for the wrong done due to breach
of public duty, of not protecting the fundamental rights of the
citizen. The compensation is in the nature of 'exemplary damages'
c awarded against the wrongdoer for the breach of its public law
duty................... "

This Court as also the High Courts under Article 226 have the power
of judicial review, in respect of proceedings of court martial as well as the
D proceedings subsesquent thereto, even though to a limited extent, and can
in appropriate cases grant relief, where there has been denial of the
fundamental rights of the citizen or if the proceedings before the Court
Martial suffer from a jurisdictional defect or any other substantive error of
law apparent on the face of the record (See S.N. Mukherjee v. Union of
India, (1990) 4 SCC 594, Constitution Bench). Having found that the
E appellant was in illegal detention from 29th June i989 to 25th July 1989,
in our opinion it would be appropriate to award him adequate compensa-
tion for violation of his fundamental right of personal liberty as guaranteed
by Article 21 of the Constitution and we accordingly direct that the
appellant shall be entitled to a sum of Rs. 30,000 as compensation for his
F illegal pre-trial detention and we make an order accordingly.

In so far as the last submission made by the appellant i.e. with regard
to the set off of the period of pre-trial detention against the period of
sentence is concerned, suffice it to say that it is now settled by this Court
in Ajmer Singh and Ors. v. Union of India and Ors., [1987) 3 SCC 340 that
G in the case of person tried by court martial, there is neither any investiga-
tion nor inquiry, nor trial under the Code of Criminal Procedure and as
such the provisions of set off contained in Section 428 of the Cr. P.C. are
not attracted to the cases of persons covicted and sentenced by court
martial to undergo imprisonment. The High Court was therefore, perfectly
H justified in rejecting the prayer of the appellant and the view of the High
BHUWNESHWAR v. U.O.I. [DR. ANAND, J.] 71

Court is unexceptionable. A
Since, the period of pre-trial detention is not set off against the
senteuce of imprisonment under Section 428 Cr. PC, the Parliament with
a view to avoid hardship to the persons convicted by Court Martial, has in
1992 incorporated in the Army Act itself a provision similar in terms as
Section 428 Cr. PC. Section 169A of the Army Act, as introduced by the B
Army Amendment Act, 1992, provides :

"169A. 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 C
imprisonment, not being an imprisonment in default of payment
of fine, the period spend 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, D
shall be restricted to the remainder, if any, of the term of imprison-
ment imposed upon him."

Section 169A of the Army Act would, therefore, after 1992 mitigate the
hardship of the persons sentenced by the Court Martial under the Army E
Act. However, the benefit of this provision is not available to the appellant,
because he was sentenced to suffer the imprisonment long before this
amendment came into force in 1992.

Thus, except for the enhancement of compensation from Rs. 1,000
to Rs. 30,000 payable by the respondent to the appellant for his pre-trial F
illegal custody, we do not find any infirmity in any other finding recorded
by the High Court and therefore in all other respects, the appeal fails and
is dismissed.

The amount of compensation shall be paid by the respondents to the G
appellant within three months from the date of this order provided, how-
ever, the appellant shall deposit his kit etc. with the competent authority,
in case he is still retaining the same, before receiving the compensation.

N.V.K. Appeal dismissed.

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