When an accused person spends several weeks or months in custody before conviction, should that period be ignored when the final sentence of imprisonment is calculated?
Under ordinary criminal law, the answer is generally no. Time already spent in detention in the same case is required to be deducted—or “set off”—against the final term of imprisonment.
In military and paramilitary law, however, the position is more complicated.
The Army Act, Navy Act, Border Security Force Act and several other Force Acts expressly provide such protection. Surprisingly, the Air Force Act, 1950 still does not contain an equivalent provision, despite the Supreme Court having noticed this disparity and recommending legislative action more than a decade ago.
This creates an important issue of fairness in military justice.
What Does “Set-Off of Detention” Mean?
Suppose a person remains in custody for four months before being convicted and is ultimately sentenced to one year’s imprisonment.
If the law allows set-off, those four months are counted towards the sentence. Ordinarily, only the balance period would then remain to be served.
The principle is simple, a person should not effectively undergo a longer period of incarceration merely because he remained in custody while his investigation or trial was pending.
Under the present general criminal procedure law, this principle is contained in Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Section 468 provides, in substance, that where an accused is sentenced to a term of imprisonment, the period already spent in detention during the investigation, inquiry or trial of the same case before conviction is to be set off against the sentence.
Section 468 BNSS broadly corresponds to the earlier Section 428 of the Code of Criminal Procedure, 1973 (CrPC).
The BNSS came into force on 1 July 2024.
Set-Off Is a Legal Right, Not a Concession
The importance of this principle was emphasised by the Madras High Court while dealing with Section 428 CrPC. A Division Bench comprising Justice S. Rajeswaran and Justice P.N. Prakash observed that granting set-off was “not the court’s charity, but a right guaranteed under Law.”
The Court directed that prisoners entitled to the benefit should receive credit for the period already spent in custody. The principle is therefore not merely about administrative convenience. It is closely connected with fairness and proportionality in sentencing.
Does Section 468 BNSS Automatically Apply to Court Martial?
This is where military law becomes different. The Armed Forces Acts are special statutes providing their own system of investigation, trial, court martial, confirmation and execution of sentences. Section 5 of the BNSS expressly saves special or local laws and special forms of procedure unless the BNSS contains a specific provision to the contrary.
Therefore, Section 468 BNSS cannot simply be assumed to override every provision contained in the Army Act, Air Force Act or Navy Act. This issue had earlier reached the Supreme Court under Section 428 CrPC.
Supreme Court in Ajmer Singh v. Union of India
In Ajmer Singh & Ors. v. Union of India & Ors., (1987) 3 SCC 340 : AIR 1987 SC 1646, soldiers convicted by General Court Martial sought the benefit of Section 428 CrPC. The Supreme Court rejected the claim as the Army Act then stood. It held that proceedings before a court martial were governed by the special statutory scheme of the Army Act and the general provision of Section 428 CrPC could not simply be applied to alter that scheme.
Parliament subsequently stepped in.
Army Act: Parliament Introduced Section 169A
By the Army (Amendment) Act, 1992, Parliament inserted Section 169A into the Army Act, 1950. Section 169A now provides that where a person subject to the Army Act is sentenced by court martial to imprisonment, the period spent by him in civil or military custody during investigation, inquiry or trial of the same case before the sentence shall be set off against the imprisonment imposed.
The liability to undergo imprisonment is limited to the remaining period. In simple terms:
Army personnel receive statutory credit for qualifying pre-trial custody.
This provision was inserted precisely to address the hardship arising from the earlier legal position.
The Supreme Court subsequently recognised this legislative development in Bhuwneshwar Singh v. Union of India, (1993) 4 SCC 327.
Navy Act: Section 151(3)
A similar protection exists under the Navy Act, 1957. Section 151(3) provides that where a person is sentenced by court martial to imprisonment, the period spent in civil or naval custody during the investigation, inquiry or trial of the same case before the sentence is to be set off against the imprisonment imposed. The provision was introduced by amendment in 2005. Thus, both the Army Act and Navy Act expressly recognise the principle of pre-trial custody set-off.
The Air Force Act: The Anomaly Continues
The most important anomaly concerns the Air Force Act, 1950.
Section 164 of the Air Force Act presently states that a sentence of transportation, imprisonment or detention is reckoned to commence from the day on which the original court-martial proceedings were signed by the Presiding Officer. Unlike Section 169A of the Army Act or Section 151(3) of the Navy Act, there is no corresponding statutory provision expressly directing that pre-trial Air Force custody be deducted from the sentence. However the set off principle is followed due to law of the land.
F.R. Jesuratnam v. Chief of Air Staff
This issue had arisen before the Delhi High Court as early as 1975 in: F.R. Jesuratnam v. Chief of Air Staff, 1976 Cri LJ 65 (Delhi). A Squadron Leader who had remained under close arrest before his General Court Martial sought set-off of that period against the sentence eventually awarded to him. The Delhi High Court did not accept the claim under the general CrPC provision, having regard to the special scheme contained in the Air Force Act. The problem nevertheless survived.
Supreme Court in Samrendra Beura v. Union of India
The issue again reached the Supreme Court in: Samrendra Beura v. Union of India & Ors., (2013) 14 SCC 672 : AIR 2013 SC 2414. The Supreme Court examined Section 164 of the Air Force Act along with the amendments already made to the Army and Navy Acts.
The Court noted that Parliament had introduced set-off provisions for Army and Navy personnel but had not made a similar amendment to the Air Force Act.
The Supreme Court observed that the provisions in the Army and Navy statutes had been introduced to avoid hardship to persons convicted by court martial. It therefore recommended that the Union of India “seriously consider” bringing a similar amendment to the Air Force Act.
As of September 2026, the current statutory text of Section 164 still does not contain an equivalent set-off provision. That makes this a continuing issue worthy of legislative reconsideration.
What About CAPFs and Other Armed Forces of the Union?
The position is not identical across all Forces. Several statutes expressly recognise pre-trial custody.
Border Security Force Act, 1968 – Section 121A
Section 121A specifically provides that civil or Force custody undergone during investigation, inquiry or trial of the same case shall be set off against the imprisonment awarded by a Security Force Court. The provision was inserted by the Border Security Force (Amendment) Act, 2000.
Indo-Tibetan Border Police Force Act, 1992 – Section 134
Section 134 expressly requires detention or confinement undergone during investigation, inquiry or trial to be set off against the term of imprisonment.
Assam Rifles Act, 2006 – Section 142
Section 142 similarly provides for set-off of civil or Force custody undergone during investigation, inquiry or trial before sentence.
Sashastra Seema Bal Act, 2007 – Section 134
Section 134 also provides that pre-sentence detention or confinement in the same case shall be set off against imprisonment.
National Security Guard Act, 1986 – Section 116
The NSG Act is particularly important because it is sometimes incorrectly stated that the statute contains no such provision. In fact, Section 116 expressly provides for set-off of detention or confinement undergone during investigation, inquiry or trial before the original proceedings were signed. Therefore, the NSG Act must be placed in the category of statutes that already protect the accused against double counting of pre-trial custody.
What About the Coast Guard Act?
The Coast Guard Act, 1978 presents another area deserving scrutiny. Section 99 states that where a person is sentenced to imprisonment or detention, the sentence is reckoned to commence on the date on which it was awarded. The provision does not contain the express set-off language found in Section 169A of the Army Act, Section 151(3) of the Navy Act or Section 121A of the BSF Act. This raises a legitimate question whether an express statutory amendment should be considered to avoid uncertainty and to place Coast Guard personnel on a clearly defined footing.
CRPF Should Be Examined Separately
The Central Reserve Police Force Act, 1949 should not automatically be placed in the same category as the Air Force Act. Its trial structure is materially different. Under Section 16(2) of the CRPF Act, Commandants or Assistant Commandants may be invested with the powers of a Magistrate for specified offences. The CRPF Rules also state that judicial trials for offences under Sections 9 and 10 are conducted according to criminal procedure. Therefore, the question of set-off in a CRPF prosecution must be examined in the context of the nature of the trial and the applicable criminal procedure rather than simply assuming that CRPF personnel have no remedy because the CRPF Act does not contain a section identical to Army Act Section 169A. The same caution should be exercised before treating every CAPF statute as legally identical.
Why Does This Difference Matter?
Consider two personnel:
- one belongs to the Army;
- the other belongs to the Air Force.
Both remain in service custody for six months during investigation and court-martial proceedings.
Both are ultimately sentenced to one year’s imprisonment. For the Army accused, Section 169A expressly directs that qualifying custody be set off. For the Air Force accused, there is presently no equivalent provision in the Air Force Act. This statutory difference exists even though both Forces form part of the Indian Armed Forces and both operate court-martial systems governed by closely related principles.
The question therefore is not whether military discipline should be diluted.
The real question is:
Should an accused be made to effectively undergo punishment twice for the same period merely because his service statute has not been amended?
The Case for Legislative Reform
There are strong reasons for Parliament to reconsider the present position.
1. Equality between the three Services
Army, Navy and Air Force personnel perform comparable constitutional and national defence functions. Where Parliament has already recognised set-off as necessary to avoid hardship in the Army and Navy, there appears to be a strong case for examining why Air Force personnel should remain differently placed.
2. Fairness in sentencing
Pre-trial custody is a real restriction on personal liberty.
A person under close arrest or lawful custody cannot ordinarily use that time as a free citizen.
Ignoring such custody while calculating imprisonment may lead to a period of actual deprivation of liberty exceeding the punishment formally awarded.
3. Proportionality
Punishment should correspond to the sentence imposed. Set-off ensures that pre-conviction custody in the same case is appropriately accounted for.
4. Legislative consistency
Parliament has already adopted the principle in:
- Army Act, Section 169A;
- Navy Act, Section 151(3);
- BSF Act, Section 121A;
- ITBP Act, Section 134;
- Assam Rifles Act, Section 142;
- SSB Act, Section 134; and
- NSG Act, Section 116.
The absence of an equivalent express provision in the Air Force Act therefore stands out.
Conclusion
The principle behind set-off is straightforward: an accused should receive appropriate credit for lawful custody already undergone in the same case before the sentence of imprisonment is imposed. Civil criminal law recognises that principle today through Section 468 BNSS, just as Section 428 CrPC did earlier.
Military legislation has progressively moved in the same direction. Parliament amended the Army Act; it later amended the Navy Act. The BSF, ITBP, Assam Rifles, SSB and NSG statutes also contain express provisions recognising pre-sentence custody.
Yet the Air Force Act continues to lack equivalent language, notwithstanding the Supreme Court’s recommendation in Samrendra Beura v. Union of India. More than a decade after that judgment, the question remains relevant: If set-off is necessary to prevent hardship to an Army or Navy accused, why should the same principle not be expressly guaranteed to an Air Force accused?
A suitable amendment would not weaken military discipline. It would simply ensure that the punishment actually undergone corresponds with the punishment legally awarded.
About the Author
Ajit Kakkar & Associates, New Delhi, appears before the Supreme Court of India, Delhi High Court and other high courts, the Central Administrative Tribunal and Armed Forces Tribunal (Principal Bench) in matters related to Service law for Army, Navy, Air Force, BSF, CRPF, CISF, ITBP, Coast Guard, Assam Rifles, GREF, Delhi Police, Civilian Govt Employees and other Govt employees.