TMI Blog2013 (4) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences 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. 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, st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent 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. ). 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 satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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