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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
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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.
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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.
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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
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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
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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’).
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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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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 1st of April, 2003, during
the examination of the fifth witness for the prosecution (Major S.R.
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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
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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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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 courtmartial 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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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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`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.
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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
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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
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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 2nd charge alone, the respondent could have been
awarded 10 years RI; for the 4th and 5th charges, he could have been
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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)
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(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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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:
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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
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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 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 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
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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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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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