Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4465 of 2005

Union of India & Ors. … Appellants

Versus

Ex-GNR Ajeet Singh … Respondent

J U D G M E N T

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 (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 JJ Act’) the

Page 2 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 committed by the respondent after he attained the age of 18

years.

2.The facts and circumstances giving rise to this appeal are that:-

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, 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 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.

2

Page 3 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 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 of the Army Act,

1950 (hereinafter referred to as `the Army Act’). 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 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 said order of punishment.

3

Page 4 E.During the pendency of the post confirmation petition, 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 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 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.

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 respondent forthwith. However, in

4

Page 5 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.

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 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 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 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

5

Page 6 charges relating to offences that the respondent had committed as a

juvenile, owing to which, 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.

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 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 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.

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 (hereinafter

referred to as `IPC’).

6

Page 7 7. We have summoned the original record of the GCM

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 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 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 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

chance to serve, I shall never repeat such

acts. I further request the Honourable Judges

not to close all the ends 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.”

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Page 8 8.Furthermore, it is evident from the record that the 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 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 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 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 1

st

of April, 2003, during

the examination of the fifth witness for the prosecution (Major S.R.

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Page 9 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 sheet (B-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 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) 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.

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

9

Page 10 years. Admittedly, 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.

11.The relevant Army Rules, 1954 (hereinafter referred to as

`Army Rules’), which may be attracted in this appeal read as under:-

“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 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.

xx xx xx xx

52. General plea of “Guilty” or “Not Guilty”

(1) ……..

(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 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 evidence that the accused

ought to plead “Not Guilty”.

xx xx xx xx

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Page 11 65. Sentence. - The Court shall award a single

sentence in respect of all the offences of which the

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-

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

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

of those offences.

79. Separate charge-sheets. —

(1) xx xx xx

(2) xx xx xx

(3) xx xx xx

(4) xx xx xx

(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 separately;

and in such case the court unless they think his claim

unreasonable, shall arraign and try the accused in like

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Page 12 manner as if the convening officer had inserted the said

charge or charges in different charge-sheets.”

(Emphasis added)

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 decided the case in a

laconic manner, without considering the gravity of the charges against

the respondent and without 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 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 is purely a

criminal case. GCM is a substitute of a criminal trial. Thus, the case

ought to have been 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 (hereinafter referred to as the

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Page 13 `Cr.P.C.’). 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 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.

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 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.

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.

13

Page 14 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 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 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

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 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 between an offence

14

Page 15 punishable under the IPC or one that is 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 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 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. 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; Babla @

Dinesh v. State of Uttarakhand, (2012) 8 SCC 800 and Abuzar

15

Page 16 Hossain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC

489).

18.So far as the joint trial of the charges is concerned, 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 gravity of the

offences committed 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 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 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 2

nd

charge alone, the respondent could have been

awarded 10 years RI; for the 4

th

and 5

th

charges, he could have been

16

Page 17 awarded a sentence of 3 years RI on each count; and for 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:

“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 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.

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, 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 the

accused can seek benefit under the orders of

the court.”

(Emphasis added)

17

Page 18 (See also: Shivaji Sahebrao Bobade & Anr. v. State of

Maharashtra, AIR 1973 SC 2622; Rafiq Ahmed @ Rafi v. State of

U.P., AIR 2011 SC 3114; Rattiram & Ors. v. State of M.P., AIR

2012 SC 1485; and Bhimanna v. State of Karnataka, AIR 2012 SC

3026)

21.In Ramesh Harijan v. State of U.P., AIR 2012 SC 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: 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 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

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Page 19 interests of justice 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 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 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 Karnataka,1993 Supp (4) SCC 595; State Bank of Patiala

& Ors. v. S.K Sharma, AIR 1996 SC 1660; and Shaman Saheb M.

Multani v. State of Karnataka, 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 only and only if it succeeds

before the court, though it may not have a justifiable claim. (See also:

19

Page 20 Girimallappa v. Special Land Acquisition Officer M & MIP &

Anr., AIR 2012 SC 3101)

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 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 to, the law.

24.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 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 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 respondent was

duty bound to protect the nation. Regrettably, however, his conduct

20

Page 21 reminds one of situations when the “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.

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 2

nd

charge, 7

years’ RI for the 6

th

charge and 3 years’ RI on each count for the 4

th

and 5

th

charges. Further, there had been a joint trial, and in view of

the provisions of Rule 65, a 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 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 were so intricately

intertwined that the same could not be separated from one another.

Thus, invalidity of part of the order could not render the GCM

21

Page 22 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 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 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 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 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.

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Page 23 28.In view of the above, the appeal succeeds, and is 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 costs.

….……………………………...................................J.

(Dr. B.S. CHAUHAN)

…..………………………….. ...................................J.

(FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI;

APRIL 2, 2013

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