Supreme Court of India
UNION OF INDIA & ORS.versusEX-GNR AJEET SINGH
- Citation
- 2013 INSC 206
- Decided
- 2 April 2013
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
The GCM conviction is partially valid; only the portion relating to offences committed as a juvenile is void, but the remaining convictions stand and the sentence is reduced to five years' rigorous imprisonment.
Summary
The respondent, a serving army soldier, was tried by a General Court Martial (GCM) for six offences including absence without leave, theft of ammunition and possession of a counterfeit seal, receiving dismissal and seven years' rigorous imprisonment. He contended that some offences were committed while he was a juvenile, invoking the Juvenile Justice (Care and Protection of Children) Act, 2000, and argued that the joint trial of juvenile and adult offences vitiated the entire GCM proceeding. The Supreme Court examined the overriding effect of the JJ Act, the requirement to raise a jurisdictional plea under Army Rule 51, and the principle of severability of offences under Army Rule 65, holding that only the portion of the trial concerning juvenile offences was invalid. It further noted that misjoinder of charges is a curable irregularity unless it causes a failure of justice, and that the respondent benefited from the joint trial. Consequently, the Court restored the conviction, reduced the sentence to five years' rigorous imprisonment, and set aside the High Court's order. The decision balances the special protection afforded to juveniles with the gravity of the offences committed after the respondent attained majority.
Issues considered
- The applicability of the Juvenile Justice (Care and Protection of Children) Act, 2000 to offences tried in a General Court Martial.
- Whether the failure to raise a plea of juvenility at the initial stage invalidates the entire GCM proceeding.
- The effect of misjoinder of charges and joint trial on the validity of the conviction under Army Rules and Cr.P.C. Section 464.
- The principle of severability of offences and its applicability to partially invalid military convictions.
- The appropriate quantum of sentence after considering mitigation under Army Rule 72.
Legislation cited
- Army Act, 1950s. 39(a), s. 52(a), s. 69
- Army Rules, 1951s. 51, s. 65, s. 72, s. 79
- Code of Criminal Procedure, 1973s. 464
- Indian Penal Code, 1860s. 473
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 15, s. 16, s. 18, s. 19, s. 20, s. 29, s. 37, s. 6
Subjects
Juvenile Justice ActCourt MartialMisjoinder of chargesSeverability of offencesMitigation of sentenceMilitary lawFailure of justiceSentencing
Judgment
[2013] 5 $.C.R. 620
A UNION OF INDIA & ORS.
v.
EX-GNR AJEET SINGH
(Civil Appeal No.4465 of 2005)
APRIL 2, 2013
B
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Army Act, 1950- ss.39(a) and 52(a) -Army Rules, 1951
c - rr. 65, 72 and 79 - Court martial proceedings for absence
without leave, for theft of ammunitions and for possession of
counterfeit sea/ - Punishment of dismissal from service and
7 years RI - Writ petition - High Court held that entire court
martial proceedings stood vitiated as the same could not
0 have been held for the offences which the delinquent had
committed as a juvenile - Held: In view of the Juvenile Justice
Act, the delinquent could not have been tried in Court Martial
for the offences which he had committed as a juvenile - But
each charge was in respect of a separate and distinct offence
and each charge could have been tried separately - Thus,
E trial by Court Martial was partly valid - Valid part of the
proceedings is required to be saved by applying the principle
of severability of offences - Hence, Court Martial
Proceedings could not have been held invalid in entirety -
By joint trial of all the charges, no prejudice has been caused
F to the accused, rather he has been benefited - Therefore,
conviction recorded by the Court Martial is maintained, but
in view of the facts of the case, sentence is reduced to 5 years
RI - Juvenile Justice (Care and Protection of Children) Act,
2000.
G
Juvenile Justice (Care and Protection of Children) Act,
2000 - ss.6, 15, 16, 18, 19, 20, 29 and 37 - Applicability of
the Act~ Held: The Act being a special Act, has an overriding
effect on any other statute - In the instant case, in Court
H 620
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 621
Martial proceedings, plea of juvenility was not raised at initial A
stage,, hence not applicable - Army Rules, 1951 - r.51.
Code of Criminal Procedure, 1973 - s.464 - Misjoinder
of charges - Affect of- Held: Misjoinder for charges is merely
an irregularity which can be cured - Misjoinder of charges 8
would not invalidate the proceedings unless a failure ofjustice
has occasioned or the person aggrieved has been prejudiced.
Court Martial - Nature of - Court Martial proceeding is
substitute of a criminal trial - Hence the case coming against
the order in Court Martial proceedings should be examined C
in accordance with the principles/law applicable in a criminal
case.
Criminal Jurisprudence ~ There would be failure ofjustice
not only by unjust conviction, but also by acquittal of the guilty o
- In case substantial justice has been done, it should not be
defeated, when pitted against technicalities - Justice should
not be tampered with mercy.
The respondent who was enrolled in Army, was
charged for absence without leave on three occasions, E
for committing theft of ammunitions on two occasions
and for possessing counterfeit seal with intent to commit
forgery. Stolen articles were recovered at his instance.
After General Court Martial Proceedings, he was awarded
the punishment of dismissal from service and 7 years RI. F
The sentence was confirmed by the Competent Authority.
The respondent challenged the award of punishment on
the ground that he was a juvenile at the time when he had
committed some of the charged offences, hence in view
of Juvenile Justice (Care and Protection of Children) Act, G
2000, those offences could not have been tried with other
offences which he had committed after attaining majority
in a joint trial.
High Court allowed the writ petition, holding that H
622 SUPREME COURT REPORTS [2013] 5 S.C.R.
A entire Court Martial (GCM) proceeding stood vitiated as
GCM could not have been held for the offences committed
as a juvenile. Appellant was given liberty to proceed
against the respondent de novo for the offences, which
he had committed after attaining majority. Hence the
B present appeal.
Allowing the appeal, the Court
HELD: 1.1. Section 6 of Juvenile Justice (Protection
of Children) Act, contains a non-obstante clause, giving
C overriding effect on any other law for the time being in
force. It also provides that the Juvenile Justice Board
shall "have the power to deal exclusively" with all the
proceedings, relating to juveniles under the Act, that are
in conflict with other laws. Moreover, non-obstante
D clauses contained in various provisions thereof,
particularly Sections 15, 16, 18, 19 and 20, render
unambiguously, the legislative interit behind the JJ Act,
i.e. of the same being a special law that would have an
overriding effect on any other statute, for the time being
E in force. Such a view stands further fortified, in view of
the provisions of Sections 29 and 37, that provide for the
constitution of Child Welfare Committee, which provides
for welfare of children in all respects, including their
rehabilitation. [Para 15] [638-E-G]
F 1.2. During the GCM proceeding, the respondent did
not raise the plea of being a juvenile, even though he was
a juvenile at the time of commission of some of the
offences. Where the plea of juvenility has not been raised
at the initial stage of trial and has been taken only on the
G appellate stage, this Court has consistently maintained
the conviction, but has set aside the sentence. Rule 51
of the Army Rules requires that the accused must raise
the objection in respect of jurisdiction at an early stage
of the commencement of proceedings. Had the
H respondent raised the issue of juvenility at the
UNION OF INDIA& ORS. v. EX-GNR AJEET SINGH 623
appropriate stage, the authority conducting the GCM A
could have dropped the charges in respect of offences
committed by him as a juvenile. Further, Rule 72 provides
for mitigation of sentence in case of invalidity in framing
of charges or on finding thereon. [Paras 10, 17 and 24]
[634-H; 635-A; 639-C-D; 642-F-G] B
Jayendra and Anr. vs. State of U.P. AIR 1982 SC 685;
Gopinath Ghosh vs. State of West Bengal AIR 1984 SC 237:
1984 SCR 803; Bhoop Ram vs. State of U.P. AIR 1989 SC
1329; Umesh Singh and Anr. vs. State of Bihar AIR 2000 SC
2111; Akbar Sheikh and Ors. vs. State of West Bengal (2009) C
7 SCC 415; Hari Ram v. State of Rajasthan and Anr. (2009)
13 SCC 211: 2009 (7) SCR 623; Bab/a @ Dinesh vs. State
of Uttarakhand (2012) 8 SCC 800: 2012 (7) SCR 477 Abuzar
Hossain @ Gu/am Hossain vs. State of West Bengal (2012)
10 SCC 489: 2012 (9) SCR 244 - referred to. D
2.1. The respondent pleaded guilty to all the offences,
though at a belated stage. As a member of the Indian
Army, the respondent was duty bound to protect the
nation. His conduct reminds one of situations when the E
"legislator becomes the transgressor" and the "fence
eats the crops". He abused the nation instead of
protecting it. Therefore, his conduct had been
unpardonable and not worthy of being a soldier. [Para 24]
[642-H; 643-A-B] F
2.2. Considering the nature of service of the
respondent; the gravity of offences committed by him
after attaining the age of 18 years and the totality of the
circumstances, grant of relief to the respondent, even on
the principles of "justice, equity, and good conscience"; G
was not permissible. The High Court has decided the
case in a laconic manner, without considering the gravity
of the charges against the respondent and without
deliberating on whether, in the light of such a fact-
situation, any prejudice had been caused to the H
624 SUPREME COURT REPORTS [2013] 5 S.C.R.
A respondent. [Paras 27 and 12] [637-C; 644-8]
2.3. Each charge had been in respect of a separate
and distinct offence. Each charge could have been tried
separately. Thus, the trial by way of a GCM remained
8 partly valid. The offences committed by the respondent
after attaining the age of 18 years, were not a part of the
same transaction i.e. related to the offences committed
by him as a juvenile. Nor were the same so intricately
intertwined that the same could not be separated from
C one another. Thus, invalidity of part of the order could not
render the GCM proceedings invalid in entirety.
Therefore, the valid part of the proceedings is required
to be saved by applying the principle of severability of
offences. [Para 26] [643-D-E]
D 2.4. As the offences committed by the respondent
after attaining majority were of a very serious nature, and
in view of the provisions of Rule 65 of the Army Rules,
only composite (single) sentence is permissible, the High
Court could substitute the punishment considering the
E gravity of the offences committed by the respondent after
attaining 18 years of age. But no occasion was there for
the High Court to say that entire GCM procedure stood
vitiated. [Para 18] [639-F-G]
2.5. The maximum punishment for absence from duty
F without leave, under Section 39(a) of the Army Act, is 3
years RI. For any offence committed under Section 52(a),
the maximum punishment is 10 years RI; and under
Section 69, the maximum punishment is 7 years RI. After
considering the entirety of the circumstances, in view of
G the provisions contained in Rule 65 of the Army Rules, ·
the respondent was awarded· the punishment of 7 years
RI for all the charges proved. Though for the 2nd charge
alone, the respondent could have been awarded 10 years
RI; for the 4th and 5th charges, he could have been
H awarded a sentence of 3 years RI on each count; and for
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 625
charge no. 6, a punishment of 7 years RI could have been A
imposed. The respondent could have asked for a
separate trial of different charges as provided under Rule
79. However, in that case the punishment would have
been much more severe, as all the sentences could not
run concurrently. In fact, the respondent has benefited B
from the joint trial of all the charges and thus, by no
means can he claim that his cause stood prejudiced by
resorting to such a course. The High Court ought to have
taken a cue from Rule 72 of the Army Rules for the
purpose of deciding the case, as the same provides for c
mitigat_ion of sentence in the event that a charge or
finding thereon is found to be invalid, as the respondent
could not have been tried by a GCM for the offences that
had been committed by him as a juvenile, keeping in view
the provisions of Rule 65 thereof. [Paras 19 and 27] [639-
0
H; 640-A-C; 643-F-H; 644-A]
2.6 .. The judgment and order passed by the High
Court is se.t aside and the order of conviction recorded
by the GCM is restored. However, in light of the facts and
circumstances of the case, the sentence imposed by the E
GCM is reduced to five years. [Para 28] [644-C-D]
3. Though the case is labeled as a civil appeal, in fact
it is purely a criminal case. GCM is a substitute of a
criminal trial. Thus, the case ough-t to have been F
examined by the High Court keeping in mind, the
principles/ law applicable in a criminal trial. The
respondent is governed by the Army Act and Army Rules,
and not by the provisions of Code of Criminal Procedure,
· 1973. However, Cr.P.C. basically deals with procedural G
matters to ensure compliance of the principles of natural
justice etc. Thus, the principles enshrined therein may
provide ·guidelines with respect to the misjoinder of
charges and a joint trial for various distinct charges/
offences as there are similar provisions in the Army
H
626 SUPREME COURT REPORTS [2013] 5 S.C.R.
A Rules. Section 464 Cr.P.C., provides that a finding or
sentence would not be invalid merely because there has
been a omission or error in framing the charges or
misjoinder of charges, unless a "failure of justice" has in
fact been occasioned. A case of misjoinder of charges is
B merely an irregularity which can be cured, and that the
same is not an illegality which would render the
proceedings void. The court should not interfere with the
sentence or conviction passed by a court of competent
jurisdiction on such grounds, unless the same has
c occasioned a failure of justice, and the person aggrieved
satisfies the court that his cause has in fact been
prejudiced in some way. [Paras 13 and 14] [637-E-H; 638-
A-B]
Birichh Bhuian and Ors. vs. State of Bihar AIR 1963 SC
D 1120: 1963 Suppl. SCR 328; Kama/anantha & Ors. vs. State
of T.N. AIR 2005 SC 2132: 2005 (3) SCR 182; State of U.P.
vs. Paras Nath Singh (2009) 6 SCC 372: 2008 (13) SCR 800
- relied on.
E 4.1. There would be "failure of justice"; not only by
unjust conviction, but also by acquittal of the guilty. The
Court has to examine whether there is really a failure of
justice or whether it is only a camouflage. Justice is a
virtue which transcends all barriers. Neither the rules of
F procedure, nor technicalities of law can stand in its way.
Even the law ben~s before justice. The order of the court
should not be prejudicial to anyone. Justice means justice
between both the parties. The interests of justice equally
demand that the "guilty should be punished" and that
technicalities and irregularities, which do not occasion the
G "failure of justice"; are not allowed to defeat the ends of
justice. They cannot be perverted to achieve the very
opposite end as this would be counter-productive.
"Courts exist to dispense justice, not to dispense with
justice. And, the justice to be dispensed, is not palm-tree
H justice or idiosyncratic justice". Law is not an escape
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 627
route for law breakers. If this is allowed, this may lead to A
greater injustice than upholding the rule of law. The guilty
man should be punished, and in case substantial justice
has been done, it should not be defeated when pitted
against technicalities. [Paras 20 and 22] [640-E; 641-E-H;
~~ 8
Darbara Singh vs. State of Punjab AIR 2013 SC 840:
2012 (7) SCR 541; Shivaji Sahebrao Bobade and Anr. vs.
State of Maharashtra AIR 1973 SC 2622: 1974 (1) SCR 489;
Rafiq Ahmed@ Rafi vs. State of U.P. AIR 2011 SC 3114:
2011 (11) SCR 907; Rattiram and Ors. vs. State of M.P. AIR C
2012 SC 1485: 2012 (3) SCR 496; Bhimanna vs. State of
Karnataka AIR 2012 SC 3026: 2012 (7) SCR 909; Ramesh
Harijan vs. State of U.P. AIR 2012 SC 1979: 2012 (6) SCR
688; Sucha Singh vs. State of Punjab AIR 2003 SC 3617;
S. Ganesan vs. Rama Raghuraman and Ors. (2011) 2 SCC D
83: 2011 (1) SCR 27; Ramesh Kumar vs. Ram Kumar and
Ors. AIR 1984 SC 1929; S. Nagaraj vs. State of Karnataka
1993 Supp (4) SCC 595: 1993 (2) Suppl. SCR 1; State Bank
of Patiala and Ors. vs. S.K Sharma AIR 1996 SC 1660: 1996
(1) SCR 818; Shaman Saheb M. Multani vs. State of E
Kamataka AIR 2001 SC 921: 2001 (1) SCR 514 - relied on.
4.2. Justice is the virtue by which the Society/Court/
Tribunal gives a man his due, opposed to injury or wrong.
Justice is an act of rendering what is right and equitable
towards one who has suffered a wrong. Therefore, while F
tempering justice with mercy, the Court must be very
conscious, that it has to do justice in exact conformity
with some obligatory law, for the reason that human
actions are found to be just or unjust on the basis of
whether the same are in conformity with, or in opposition G
to, the law. [Para 23] [642-D-E]
Delhi Administration vs. Gurudeep Singh Uban AIR 2000
SC 3737: 2000 (2) Suppl. SCR 496; Girimallappa vs. Special
Land Acquisition Officer Mand MIP and Anr. AIR 2012 SC H
3101: 2012 SCR 975 - relied on.
628 SUPREME COURT REPORTS [2013) 5 S.C.R.
A Case Law Reference:
1963 Suppl. SCR 328 relied on Para 14
2005 (3) SCR 182 relied on Para 14
B 2008 (f3) SCR 800 relied on Para 14
AIR 1982 SC 685 referred to Para 17
1984 SCR 803 referred to Para 17
AIR 1989 SC 1329 referred to Para 17
c
AIR 2000 SC 2111 referred to Para 17
(2009) 1 sec 415 referred to Para 17
2009 (7) SCR 623 referred to Para 17
D 2012 (7) SCR 477 referred to Para 17
2012 (9) SCR 244 referred to Para 17
2012 (7) SCR 541 relied on . Para 20
E 1974 (1) SCR 489 relied on Para 20
2011 (11) SCR 907 relied on Para 20
2012 (3) SCR 496 relied on Para 20
2012 (7) SCR 909 relied on Para 20
F
2012 (6) SCR 688 relied on Para 21
AIR 2003 SC 3617 relied on Para 21
2011 (1) SCR 27 relied on Para 21
G
AIR 1984 SC 1929 relied on Para 22
1993 (2) Suppl. SCR 1 relied on Para 22
1996 (1) SCR 818 relied on Para 22
H 2001 (1) SCR 514 relied on Para 22
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 629
2000 (2) Suppl. SCR 496 relied on Para 23 A
2012 SCR 975 relied on Para 23
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4465 of 2005.
B
From the Judgment & Order dated'08.03.2004 of the High
Court of Delhi at New Delhi in Writ Petition (Civil) No. 8573 of
2003.
Paras· Kuhad, ASG, S. Wasim A. Qadri, R.
Balasubramani, Shubham Aggarwal, B.V. Bairam Das, Anil C
Katiyar for the Appellants.
S.M. Dalal, Rameshwar Prasad Goyal for the Respondent.
The Judgment of the Court was delivered by D
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the judgment and order, dated 8.3.2004, passed by the
High Court of Delhi at New Delhi in Writ Petition (Civil) No.8573
of 2003 by way of which the High Court has set aside the order
dated 3.4.2003 passed by the General Court Martial E
(hereinafter referred to as 'GCM'), that had awarded the
punishment of dismissal from service and 7 years rigorous
imprisonment (hereinafter referred to as 'RI') to the respondent.
The High Court held that, under the Juvenile Justice (Care &
Protection of Children) Act, 2000 (hereinafter referred to as 'the F
JJ Act') the respondent could not be tried by GCM for the
charges related to the period when he was juvenile and
therefore, the GCM proceedings stood vitiated in entirety.
However, the High Court has given liberty to the appellant to
hold a fresh GCM, on the charges related to offences G
committed by the respondent after. he attained the age of 18
years.
2. The facts and circumstances giving rise to this appeal
are that-
H
630 SUPREME COURT REPORTS [2013] 5 S.C.R.
A A. The respondent was enrolled in the Army
on15.12.2000, and was posted to 77 Medium Regiment. He
absented himself without leave from 26.2.2002 to 8.3.2002 i.e.
(11 days). The respondent, while on Sentry duty on 17/
18.3.2002 at the Ammunition Dump of the said Regiment,
B committed theft of 30 Grenades Hand No.36 High Explosive
and 160 rounds of 5.56 MM INSAS. The respondent once
again absented himself without leave from 12.6.2002 to
2.9.2002 (81 days). The respondent absented himself without
leave from 4.9.2002 to 26.9.2002 (23 days) yet again. The
c respondent also committed theft of a Carbine Machine Gun 9
MM on 27.9.2002. He was apprehended by the Railway Police
Phulera (Rajasthan) with the said Carbine Machine Gun, and
an FIR No.56/2002 was registered by the Railway Police on
4.10.2002.
D B. On 11.10.2002, the respondent was produced before
the Chief Judicial Magistrate, Jodhpur, who passed an order
for handing over the respondent to the Military Authorities, and
it was later at his instance that the buried, stolen ammunition
i.e. 30 Grenades and 5.56 MM INSAS rounds were recovered
E on 13.10.2002. A Court of Inquiry was ordered and summary
of evidence was recorded.·
C. The chargesheet was served upon the respondent on
11.3.2003, and it contained six charges, under the provisions
F of the Army Act, 1950 (hereinafter referred to as 'the Army Acf).
After the conclusion of the GCM proceedings, the respondent
was awarded punishment vide order dated 3.4.2003, as has
been referred to hereinabove.
D. The sentence awarded in the GCM was confirmed by
G the Competent Authority, i.e. Chief of the Army Staff, while
dealing with the petition under Section 164(2) of the Army Act.
After such confirmation of sentence, the respondent was
handed over to the civil jail at Agra to serve out the sentence.
The respondent filed a post confirmation petition against the
H said order of punishment.
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 631
[DR. B.S. CHAUHAN, J.]
E. During the pendency of the post confirmation petition, A
the respondent filed a writ petition before the High Court,
challenging the said order dated 3.4.2003, mainly on the
ground that he was a juvenile at the time of some of the charged
offences and in view of the provisions of the JJ Act, the joint
trial of those offences that he had allegedly committed as a B
juvenile and other offences that he had allegedly committed
after attaining majority had vitiated the GCM proceedings in
entirety.
F. The appellant contested the said writ petition on the C
grounds that some of the offences with which the respondent
had been charged, were of very serious nature, and they had
been committed by the respondent after attaining the age of
18 years. Moreover, the respondent had not raised the plea of
juvenility when the GCM proceedings were in progress.
D
G. The High Court allowed the writ petition, quashing the
aforesaid punishment, and holding that the entire GCM
proceeding stood vitiated, as the GCM could not be.held for
the offences alleged to have been committed by him as a
juvenile. The High Court, therefore, directed release of the E
·respondent forthwith. However, in relation to particular charges
that were related to offences committed by him after attaining
the age of 18 years, the appellant was given liberty to proceed
in accordance with law against him de novo.
Hence, this appeal.
F
3. Shri Paras Kuhad, learned ASG appearing for the
appellants, has submitted that the High Court has committed
an error by holding that the entire GCM proceedings stood
vitiated, for the reason that serious offences had been G
committed by the respondent after attaining the age of 18
years, and that at least with respect to such specific charges,
the GCM proceeding could not be considered to have been
vitiated. Additionally, even if the High Court had observed that
the respondent was a juvenile at the time of some of the H
632 SUPREME COURT REPORTS [2013) 5 S.C.R.
A charged offences at most the sentence could have been
quashed; the conviction should have been sustained. Thus, the
appeal deserves to be allowed.
4. Per contra, Shri S.M. Dalal, learned counsel appearing
for the respondent, has opposed the appeal contending that the
8
High Court has taken into consideration all relevant facts and
law, particularly the provisions of the JJ Act, and has
interpreted the same in correct perspective, because the GCM
could not have been conducted for charges relating to offences
that the respondent had committed as a juvenile, owing to which,
C the entire proceedings stood vitiated. Therefore, no interference
with the impugned judgment is called for.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
D
6. Relevant parts of the chargesheet issued to the
respondent read as under:-
(i) Charged under Army Act Section 52(a)- theft of 30
Grenade Hand No.36 High Explosive and160
E rounds of 5.56 MM INSAS on 17/18.3.2002.
(ii) Charged under Army Act Section 52(a) - theft of
carbine machine gun 9 MM on 27.9.2002.
(iii) Charged under Army Act Section 39(a) - absent
F
from duty without leave from 26.2.2002 to 8.3.2002.
(iv) Charged under Army Act Section 39(a) - absent
from duty without leave from 12.6.2002 to 2.9.2002.
G (v) Charged under Army Act Section 39(a) - absent
from duty without leave from 4.9.2002 to 27.9.2002.
(vi) Charged under Army Act Section 69 - possessing
counterfeit seal with intent to commit forgery
contrary to Section 473 of Indian Penal Code, 1860
H (hereinafter referred to as 'IPC').
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 633
[DR. S.S. CHAUHAN, J.]
7. We have summoned the original record of the GCM A
proceeding. that makes it clear that the respondent was
provided with a defense counsel, namely, Dr. Balbir Singh, a
. practicing :advocate at the aforesaid GCM proceedings.
Secondly, it also becomes clear that no witness was called in
the defence by the accused. Thirdly, it is evident that he did not B
cross examine the court witnesses, and thus Rule 141(2) and
142(2) of the Army Rules were complied with. Upon being
asked in question 16 whether the accused wanted to address
the Court, he answered in the affirmative and stated:
"......... that I am really ·ashamed of my acts and really C
regret my acts. The past seven months I have been
attached to this Regiment and the misery and
embarrassment which I am undergoing is more than a
punishment. My family is also dependent on me for a
permanent source of income. I have a younger sister D
whose marriage's responsibility is also on my shoulders. I
am a soldier and have just started my career. I request the
Honourable Judges to have mercy on me and give me a
chanee to serva, I shall never repeat such acts. I further
request the Honourable Judges not to close all the ends E
of my career and life at this early age of service and give
. mea chance to redeem my prestige as well as keep up
the aspirations of my parents."
8. Furthermore, it is evident from the record that the F
respondent had confessed before the Commanding Officer with
respect to having stolen the arms and ammunition as mentioned
in the chargesheet, It was the information furnished by him that
led to the recovery of the stolen ammunition. He had also
admitted to having sold 140 rounds of 156 mm INSAS to a G
civilian named Wasim Ali, for a sum of Rupees 30, 000, though
he later asserted that he had fabricated these details.
In his prayer for mitigation of punishment, the respondent
has stated that he was only 22 years of age, and that his entire
life lay before him. His parents were old, and that he was the H
634 SUPREME COURT REPORTS (2013] 5 S.C.R.
A sole bread earner of the house. He had the responsibility of
getting his sister married. From the initial stages of the
proceeding, he had admitted to his crimes, and that any
mistake he had made was only because of his immaturity.
Further, he stated that he understood the serious nature of his
8 crime.
9. The original record of the proceeding reveals that the
respondent had initially pleaded not guilty to all 6 charges that
had been framed against him. It was only on the 1st of April,
2003, during the examination of the fifth witness for the
C prosecution (Major S.R. Gulia), the respondent had requested
for grant of audience for defence. At that stage, he had stated:
"I wish to withdraw my plea of 'Not Guilty', and to plead
'Guilty' to all six charges, as are contained in the charge
D sheet (8-2) against me, and therefore, that the Prosecution
Witness present before the Court, may please be allowed
to retire."
He further stated that he had wanted·to accept his guilt
E from the very beginning of the Court Martial, but had been
misguided by his parents and other relatives to plead 'Not
Guilty'.
At this point, the Judge Advocate changed the plea of the
accused from 'Not Guilty' to 'Guilty', and referred to Rules 52(2)
F and (2A); 54 and 55 Army Rules. It was duly pointed out by the
Judge Advocate that the accused had the right to change his
plea at any point during the trial, so long as the effect of doing
so is properly explained to him.
G 10. Undoubtedly, given the date of birth of the respondent
as per the service record is 20.4.1984, he attained 18 years
of age on 20.4.2002. Accordingly, the charge nos. 2, 4, 5 and
6 relate to offences that the respondent committed after
attaining the age of 18 years. Admittedly, during the GCM
H proceeding, the respondent did not raise the plea of being a
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 635
[DR. B.S. CHAUHAN, J.]
juvenile, even though he was a juvenile at the time of A
commission of some of the offences.
11. The relevant Army Rules, 1954 (hereinafter referred to
as 'Army Rules'), which may be attracted in this appeal read
as under:- B
"51. Special plea to the jurisdiction. - (1) The accused,
before pleading to a charge, may offer a special plea to
the general jurisdiction of the court, and if he does so,
and the court considers that anything stated in such plea
shows that the court has no jurisdiction it shall receive any C
evidence offered in support, together with any evidence
offered by the prosecutor in disproof or qualification
thereof, and, any address by or on behalf of the accused
and reply by the prosecutor in reference thereto.
D
xx xx xx xx
52. General plea of "Guilty" or "Not Guilty"
(1) ........
E
(2) If an accused person pleads "Guilty", that plea shall be
recorded as the finding of the court; but before it is
recorded, the presiding officer or judge-advocate, on behalf
of the court, shall ascertain that the accused understands
the nature of the charge to which he has pleaded guilty and F
shall inform him of the general effect of that plea, and in
particular of the meaning of the charge to which he has
pleaded guilty, and of the difference in procedure which will
be made by the plea of guilty, and shall advise him to
withdraw that plea if it appears from the summary of G
evidence that the accused ought to plead "Not Guilty".
xx xx xx xx
65. Sentence. - The CoUI. shall award a single
.sentence in respect of all U offences of which the H
636 SUPREME COURT REPORTS [2013] 5 S.C.R.
A accused is found guilty, and such sentence shall be
deemed to be awarded in respect of the offences in each
charge in respect of which it can be legally given and not
to be awarded in respect of any offence in a charge
in respect of which it cannot be legally given.
72. Mitigation of sentence on partial confirmation. -
(1) ........ .
(2) Where a sentence has been awarded by a court-
c martial in respect of offences in several charges and has
been confirmed, and any one or such charges the
finding thereon is found to be invalid, the authority
having power to mitigate, remit, or commute the
punishment awarded by the sentence shall take into
D consideration the fact of such invalidity, and if it.seems just,
mitigate, remit or commute the punishment awarded
according as it seems just, having regard to the offences
in the charges which with the findings thereon are not
invalid, and the punishment as so modified shall be as
valid as if it had been originally awarded only in respect
E
of those offences.
79. Separate charge-sheets. -
(1) xx xx xx
F
(2) xx xx xx
(3) xx xx xx
(4)xxxxxx
G (5) Where a charge-sheet contains more than one
charge, the accused may, before pleading, claim to
be tried separately in respect of any charge or
charges in that charge-sheet, on the ground that he will
be embarrassed in his defence if he is not so tried
H
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 637
[DR. B.S. CHAUHAN, J.]
separately; andm such case the court unless they think his A
claim unreasonable; shall arraign and try the accused in
like manner as if the convening officer had inserted the
s~id charge or charges in different charge-sheets." ·
(Emphasis added) 8
12. Unfortunately, the attention of the High Court was not
drawn to the aforesaid relevant rules and to the scope of their
application to the facts of the present case. The High Court has
decide(j the case in a laconic manner, without considering the
gravity.of the charges against the respondent and without C
deliberating on whether, in light of such a fact-situation, any
prejudice had been caused to the respondent. Questions with
respect to whether there has been any failure of justice in the
present case and whether in light of the facts of the case, the
entire GCM proceedings actually stood vitiated, as the D
respondent indeed could not be tried by the GCM for those
charges that had been committed when the respondent was a
juvenile.
13. Though the case is labeled as a civil appeal, in fact it E
is purely a criminal case. GCM is a substitute of a criminal trial.
Th Lis, the case ought to have been examined by the High Court
keeping in mind, the principles/ law applicable in a criminal
trial. Th~ respondent is governed by the Army Act and Army
Rules, ·and not by the provisions of Code of Criminal
Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.'). F
However, Cr.P.C. basically deals with procedural matters to
ensure compliance of the principles of natural justice etc. Thus,
the principles enshrined therein may provide guidelines with
respect to the misjoinder of charges and a joint trial for various
distinct charges/offences as there are similar provisions in the G
Army Rules. Section 464 Cr.P.C., provides that a finding or
sentence would not be invalid merely because there has been
a omission or error in framing the charges or misjoinder of
charges;· unless a "failure of justice" has in fact been
occasioned. H
638 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 14. In Birichh Bhuian & Ors. v. State of Bihar, AIR 1963
SC 1120, this Court has held, that a case of misjoinder of
charges is merely an irregularity which can be cured, and that
the same is not an illegality which would render the proceedings
void. The court should not interfere with the sentence or
B conviction passed by a court of competent jurisdiction on such
grounds, unless the same has occasioned a failure of
justice, and the person aggrieved satisfies the court that his
cause has in fact been prejudiced in some way.
C A similar view has also been reiterated in Kamalanantha
& Ors. v. State of T.N., AIR 2005 SC 2132; and State of U.P.
v. Paras Nath Singh, (2009) 6 SCC 372.
15. The JJ Act that came into force on 1.4.2001 repealed
the JJ Act 1986, and provides that a juvenile will be a person
D who is below 18 years of age.
Section 6 of the JJ Act contains a non-obstante clause,
giving overriding effect to any other law for the time being in
· force. It also provides that the Juvenile Justice Board, where it
E has been constituted, shall "have the power to deal
exclusively" with all the proceedings, relating to juveniles under
the Act, that are in conflict with other laws. Moreover, non-
obstante clauses contained in various provisions thereof,
particularly Sections 15, 16, 18, 19 and 20, render
F unambiguously, the legislative intent behind the JJ Act, i.e. of
the same being a special law that would have an overriding
effect on any other statute, for the time being in force. Such a
view stands further fortified, in view of the provisions of Sections
29 and 37, that provide for the constitution of Child Welfare
Committee, which provides for welfare of children in all
G respects, including their rehabilitation.
16. Clause (n) of Section 2 of the JJ Act defines 'offence',
as an offence punishable under any law for the time being in
force. Thus, the said provision does not make any distinction
H
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 639
[DR. B.S. CHAUHAN, J.]
between an offence punishable under the IPC or one that is A
punishable under any local or special law.
17. The provisions of the JJ Act have been interpreted by
this Court time and again, and it has been clearly explained that
raising the age of "juvenile" to 18 years from 16 years would
8
apply retrospectively. It is also clear that the plea of juvenility
can be raised at any time, even after the relevant judgment/order
has attained finality and even if no such plea had been raised
earlier. Furthermore, it is the date of the commission of the
offence, and not the date of taking cognizance or of framing of C
charges or of the conviction, that is to be taken into
consideration. Moreover, where the plea of juvenility has not
been raised at the initial stage of trial and has been taken only
on the appellate stage, this Court has consistently maintained
the conviction, but has set aside the sentence. (See: Jayendra
& Anr. v. State of U.P., AIR 1982 SC 685; Gopinath Ghosh v. D
State of West Bengal, AIR 1984 SC 237; Bhoop Ram v. State
of U.P.,_AIR 1989 SC 1329; Umesh Singh & Anr. v. State of
Bihar, AIR 2000 SC 2111; Akbar Sheikh & Ors. v. State of
West Bengal, (2009) 7 SCC 415; Hari Ram v. State of
Rajasthan & Anr., (2009) 13 SCC 211; Bab/a@ Dinesh v. E
State of Uttarakhand, (2012) 8 SCC 800 and Abuzar Hossain
@ Gu/am Hossain v. State of West Bengal, (2012) 10 SCC
489).
18. So far as the joint trial of the charges is concerned, as F
the offences committed by the respondent after attaining
majority were of a very serious nature, and in view of the
provisions of Rule 65 of the Army Rules, only composite (single)
sentence is permissible, the High Court could substitute the
punishment considering the gravity of the offences committed G
by the respondent after attaining 18 years of age. But there was
no occasion for the High Court to observe that the entire GCM
proceeding stood vitiated. ·
19. The maximum punishment for absence from duty
H
640 SUPREME COURT REPORTS [2013] 5 S.C.R.
A without leave, under Section 39(a) of the Army Act, is 3 years
RI. For any offence committed under Section 52(a), the
maximum punishment is 10 years RI; and under Section 69, the ,
maximum punishment is 7 years RI. After considering the
entirety of the circumstances, in view of the provisions contained
B in Rule 65 of the Army Rules, the respondent was awarded the
punishment of 7 years RI for all the charges proved. Though for
the 2nd charge· alone, the respondent could have been
awarded 10 years RI; for the 4th and 5th charges, he could have
been awarded a sentence of 3 years RI on each count; and for
c charge no. 6, a punishment of 7 years RI could have been
imposed.
20. So far as the failure of justice is concerned, this Court
in Darbara Singh v. State of Punjab, AIR 2013 SC 840, held
that:
D
"Failure of justice" is an extremely pliable or facile
expression, which can be made to fit into any situation
in any case. The court must endeavour to find the truth.
There would be "failure of justice"; not only by unjust
E conviction, but also by acquittal of the guilty, as a result
of unjust failure to produce requisite evidence. Of course,
the rights of the accused have to be kept in mind and also
safeguarded, but they should not be overemphasised to
the extent of forgetting that the victims also have rights.
F It has to be shown that the accused has suffered some
disability or detriment in respect of the protections
available to him under the Indian criminal jurisprudence.
"Prejudice" is incapable of being interpreted in its generic
sense and applied to criminal jurisprudence. The plea
of prejudice has to be in relation to investigation or trial,
G
and not with respect to matters falling outside their scope.
Once the accused is able to show that there has been
serious 'prejudice caused to him, with respect to either
of these aspects, and that the same has defeated the
rights available to him under criminal jurisprudence, then
H
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 641
[DR. B.S. CHAUHAN, J.]
the accused can seek benefit under the orders of the A
court."
(Emphasis added)
(See also: Shivaji Sahebrao Bobade & Anr. v. State of
Maharashtra, AIR 1973 SC 2622; Rafiq Ahmed@ Rafi v. B
State of U.P., AIR 2011 SC 3114; Rattiram & Ors. v. State of
M.P., AIR 2012 SC 1485; and Bhimanna v. State of
Kamataka, AIR 2012 SC 3026)
21. In Ram.esh Harijan v. State of U.P., AIR 2012 SC c
1979, this court dealt with the issue of the liberal approach
adopted by the court to grant an unwarranted acquittal, and held
that while dealing with a criminal case, it is a matter of
paramount importance for any court to ensure that the mis-
carriage of justice be avoided in all circumstances. (See also: D
Sucha Singh v. State of Punjab, AIR 2003 SC 3617; and S.
Ganesan v. Rama Raghuraman & Ors.; (2011) 2 SCC 83)
22. The expression "failure of justice" would appear,
sometimes, as an etymological chameleon. The Court has to
examine whether there is really a failure of justice or whether it E
is only a camouflage. Justice is a virtue which transcends all
barriers. Neither the rules of procedure, not technicalities of law
can stand in its way. Even the law bends before justice. The
order of the court should not be prejudicial to anyone. Justice
means justice between both the parties. The interests of justice F
equally demand that the "guilty should be punished" and that
technicalities and irregularities, which do not occasion the
"failure of justice"; are not allowed to defeat the ends of justice.
They cannot be perverted to achieve the very opposite end as
this would be counter-productive. "Courts exist to dispense G
justice, not to dispense with justice. And, the justice to be
dispensed, is not palm-tree justice or idiosyncratic justice". Law
is not an escape route for law breakers. If this is allowed, this
may lead to greater injustice than upholding the rule of law. The
guilty man, therefore, should be punished, and in case H
642 SUPREME COURT REPORTS [2013) 5 S.C.R.
A substantial justice has been done, it should not be defeated
when pitted against technicalities. (Vide : Ramesh Kumar v.
Ram Kumar & Ors., AIR 1984 SC 1929; S. Nagaraj v. State'
of Kamataka,1993 Supp (4) SCC 595; State Bank of Patiala
& Ors. v. S.K Sharma, AIR 1996 SC 1660; and Shaman
B Saheb M. Multani v. State of Kamataka, AIR 2001 SC 921)
23. In Delhi Administration v. Gurudeep Singh Uban, AIR
2000 SC 3737, this Court observed that justice is an illusion
as the meaning and definition of 'justice' vary from person to
person and party to party. A party feels that it has got justice
C only and only if it succeeds before the court, though it may not
have a justifiable claim. (See also: Girimal/appa v. Special
Land Acquisition Officer M & M/P & Anr., AIR 2012 SC 3101)
Justice is the virtue by which the Society/Court/Tribunal
D gives a man his due, opposed to injury or wrong.
Justice is an act of rendering what is right and equitabie
towards one who has suffered a wrong. Therefore, while
tempering justice with mercy, the Court must be very conscious,
E that it has to do justice in exact conformity with some obligatory
law, for the reason that human actions are found to be just or
unjust on the basis of whether the same are in conformity with,
or in opposition to, the law.
24. Rule 51 of the Army Rules requires that the accused
F must raise the objection in respect of jurisdiction at an early
stage of the commencement of proceedings. Had the
respondent raised the issue of juvenility at the appropriate
stage, the authority conducting the GCM could have dropped
the charges in respect of offences committed by him as a
G juvenile. Further, Rule 72 provides for mitigation of sentence
in case of invalidity in framing of charges or on finding thereon.
The respondent pleaded guilty to all the offences, though
at a belated stage. As a member of the Indian Army, the
H respondent was duty bound to protect the nation. Regrettably,
UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 643
[DR. B.S. CHAUHAN, J.]
however, his conduct reminds one of situations when the A
"legislator becomes the transgressor" and the "fence eats the
crops". Put simply, he abused the nation instead of protecting
it. Therefore, his conduct had been unpardonable and not worthy
of being a soldier.
B
25. At the cost of repetition, it may be observed that after
attaining 18 years of age, the respondent committed four
serious offences; he could have been punished with 10 years'
RI for the 2nd charge, 7 years' RI for the 6th charge and 3 years'
RI on each count for the 4th and 5th charges. Further, there had
been a joint trial, and in view of the provisions of Rule 65, a C
composite sentence of 7 years RI had been imposed.
26. Undoubtedly, each charge had been in respect of a
separate and distinct offence. Each charge could have been
tried separately. Thus, the trial by way of a GCM remained partly D
valid. The offences committed by the respondent after attaining
a
the age of 18 years, were not part of the same transaction
i.e. related to the offences committed by him as a juvenile. Nor
were the same were so intricately intertwined that the same
could not be separated from one another. Thus, invalidity of part E
of the order could not render the GCM proceedings invalid in
entirety. Therefore, the valid part of the proceedings is required
to be saved by applying the principle of severability of offences.
27. The respondent could have asked for a separate trial
of different charges as provided under Rule 79. However, in that F
case the punishment would have been much more severe, as
all the sentences could not run concurrently. In fact, the
respondent has benefited from the joint trial of all the charges
and thus, by no means can he claim that his cause stood
prejudiced by resorting to such a course. The High Court ought G
to have taken a cue from Rule 72 of the Army Rules for the
purpose of deciding the case, as the same provides for
mitigation of sentence in the event that a charge or finding
thereon is found to be invalid, as the respondent could not have
been tried by a GCM for the offences that had been committed H
644 SUPREME COURT REPORTS [2013] 5 S.C.R.
A by him as a juvenile, keeping in view the provisions of Rule 65
thereof.
Thus, considering the nature of service of the respondent,
the gravity of offences committed by him after attaining the age
8 of 18 years and the totality of the circumstances, we are of the
considered opinion that grant of relief to the respondent, even
on the principles of "justice, equity, and good conscience"; was
not permissible.
28. In view of the above, the appeal succeeds, and is
C allowed. The judgment and order passed by the High Court
impugned herein, is set aside and the order of conviction
recorded by the GCM is restored. However, in light of the facts
and circumstances of the case, the sentence imposed by the
GCM is reduced to five years. There shall be no order as to
D costs.
K.K.T. Appeal allowed.
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