Union of India and Ors. vs. Ex-GNR Ajeet Singh, (2013) 4 SCC 186
| Citation | 2013 4 SCC 186 |
| Date Of Judgment | 2 April, 2013 |
| Court | Supreme Court of India |
| Case Type | Civil Appeal No. 4465 of 2005 |
| Appellant | Union of India and ors |
| Respondent | Ex- GNR Ajeet Singh |
| Bench | B. S. Chauhan, Fakkir Mohamed Kalifulla |
| Referred | Juvenile Justice (care and protection of children) Act, 2000; Army Act 1950; Section 473 of Indian Penal Code; Section 464 of the Code of Criminal Procedure 1973; Army Rules 1954 |
FACTS OF THE CASE
• The Defendant was registered in the Army on. 15.12.2000, 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 Defendant, while on Sentry duty on 17/18.3.2002 at the Ammunition Dump of the said Troop, committed theft of 30 Grenades Hand No. 36 High Explosive and 160 rounds of 5.56 MM INSAS. The Defendant once again absented himself without leave from 12.6.2002 to 2.9.2002 (81 days). The Defendant absented himself without leave from 4.9.2002 to 26.9.2002 (23 days) yet again. The Defendant also committed stealing of a Carbine Machine Gun 9 MM on 27.9.2002. He was detained 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.
• On 11.10.2002, the Defendant was produced before the Chief Judicial Magistrate, Jodhpur, who passed an order for passing over the Defendant to the Military
Authorities, and it was later at his instance that the hidden, 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 a summary of evidence was recorded.
• 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 Defendant was awarded punishment vide order dated 3.4.2003, as has been referred to hereinabove.
• 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 Defendant was handed over to the civil jail at Agra to serve out the sentence. The Accused filed a post confirmation petition against the said order of punishment.
• During the pendency of the post confirmation petition, the Accused 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 apparently committed as a juvenile and other offences that he had allegedly committed after attaining majority had vitiated the GCM proceedings in entirety.
• The Petitioner challenged the said writ petition on the grounds that some of the offences with which the Accused had been charged, were of very grave nature, and they had been committed by the Accused after attaining the age of 18 years. Moreover, the Accused had not raised the plea of juvenility when the GCM proceedings were in progress.
• 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, focused release of the Defendant forthwith. However, in relation to charges that were related to offences committed by him after attaining the age of 18 years, the Plaintiff was given the right to proceed in accordance with law against him de novo.
JUDGMENT
• 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 granted the punishment of discharge from service and 7 years rigorous imprisonment (hereinafter referred to as ‘RI’) to the accused. The High Court held that, under the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as ‘the JJ Act’) the defendant could not be tried by GCM for the charges related to the period when he was juvenile and therefore, the GCM proceedings stood corrupted entirety. However, the High Court has given authority to the petitioner to hold a fresh GCM, on the charges related to offences committed by the accused after he attained the age of 18 years
• Shri Paras Kuhad, learned ASG appearing for the plaintiffs, has submitted that the High Court has committed an error by holding that the entire GCM proceedings stood vitiated, because grave offences had been committed by the defendant 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. Moreover, even if the High Court had observed that the defendant was a juvenile at the time of some of the charged offences at most the sentence could have been suppressed; the conviction should have been sustained. Thus, the appeal deserves to be allowed.
• Shri S. M. Dalal, educated counsel looking for the defendant, 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 construed the same in correct perspective, because the GCM could not have been showed for charges relating to offences that the defendant had committed as a juvenile, due to which, the whole proceedings stood vitiated. Therefore, no interference with the impugned judgment is called for.
• Additionally, it is from the record that the defendant had admitted formerly 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.
• 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 lawfully given.
• 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 ease, remit, or convert 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 improved shall be as valid as if it had been firstly awarded only in respect of those offences.
• 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 seeing 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 defendant 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 charge no. 6, a punishment of 7 years RI could have been obligatory.
• Thus, in view of the nature of service of the defendant, the seriousness of offences committed by him after attaining the age of 18 years and the entirety of the circumstances, we are of the considered opinion that grant of relief to the defendant, even on the principles of ‘justice, equity, and good conscience’; was not permissible.
• In opinion of the above, the plea succeeds, and is permissible. 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 the 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.
REFERENCE
This Article is written by Shravani Vilas Khairkar of B. C. Thakur College of Law, Intern at Legal Vidhiya.
