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Supreme Court of India
B.S. CHAUHAN & FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.
Union of India & Others - Appellant
Versus
Ex-GNR Ajeet Singh - Respondents
Civil Appeal No. 4465 of 2005
Decided On : 02-04-2013
(b) Army Rules - Rule 51 - Plea of jurisdiction - Offender could have but not raising plea of juvenility relating to some charges before GCM - No infirmity in GCM proceedings. (Para 10)
(c) Code of Criminal procedure, 1973 - Section 464 - GCM being substitute for criminal trial, Courts should keep provisions of Cr.P.C. in mind while deciding such cases - Omission or error in framing charges - Non joinder of charges - Joint trial - Do not vitiate a finding or sentence - Offences during juvenility and post juvenility though charges separately but tried jointly - Conviction and sentence not prejudicing the offender - When plea of juvenility is raised at appellate stage, conviction has to be maintained though setting aside the sentence - Entire proceeding cannot be held vitiated by appellate court. (Paras 14 and 17)
AIR 1963 SC 1120; AIR 2005 SC 2132; (2009) 6 SCC 372; AIR 1982 SC 685; AIR 1984 SC 237; AIR 1989 SC 1329; AIR 2000 SC 2111; (2009) 7 SCC 415; (2009) 13 SCC 211; (2012) 8 SCC 800; (2012) 10 SCC 489 - Relied upon
(d) Army Rules - Rule 65 - Only one, composite, sentence permissible - Passing of composite sentence for charges during period of juvenility and thereafter by GCM - Due compliance with all procedures - High Court declaring entire proceeding vitiated - Not proper. (Para 18)
(e) Army Rules - Rules 51 and 72 - Rule 51 permits raising plea of jurisdiction before GCM - Offender did not raise plea of juvenility - On raising such plea before GCM, it could have dropped charges pertaining to period of juvenility u/r 72 - Offender pleading guilty to all charges - In separate trials total punishment would have been 23 years, that too not running concurrently - Instead, on joint trial only 7 years RI awarded - No prejudice to offender by joint trial and sentence. (Paras 24 to 27)
AIR 2013 SC 840; AIR 1973 SC 2622; AIR 2011 SC 3114; AIR 2012 SC 1485; AIR 2012 SC 3026; AIR 2012 SC 1979; AIR 2003 SC 3617; (2011) 2 SCC 83; AIR 1984 SC 1929; 1993 Supp (4) SCC 595; AIR 1996 SC 1660; AIR 2001 SC 921; AIR 2000 SC 3737; AIR 2012 SC 3101 - Relied upon
(f) Doctrine - Doctrine of severability of offence - Joint trial by GCM for charges pertaining to period of juvenility and thereafter - Sentence for period of juvenility not valid - High Court declaring entire proceeding vitiated - Should have saved proceedings pertaining to post-juvenility period by applying doctrine of severability of offence. (Para 26)
Facts of the case:
A soldier in the Army absented from duty without permission and also committed theft of guns and ammunition more than one time.
He was tried by GCM and sentenced to RI and punished with dismissal.
In the High Court he contended that part of the charges related to the period when he was juvenile but the GCM awarded single sentence for all offences and was thus vitiated.
High Court accepted the plea and held the proceedings vitiated in entirety. However it granted liberty to conduct GCM for the offences post juvenility stage.
Finding of the Court:
High Court, instead of holding entire proceeding vitiated should have saved the valid sentence.
Result : Appeal allowed.
Judgment :-
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 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.
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.
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 a
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