Army man conviction

Misjoinder of Charges in Criminal Cases – Plea of Juvenile – Change of Plea – Guilty – Not Guilty – Plea of Prejudice – Failure of Justice

Judgement rendered by:
B.S. CHAUHAN; FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ. – Supreme Court of India:
Union of India And Ors. Vs. Ex-GNR Ajeet Singh’ [Dated: April 2, 2013]

*[a juvenile will be a person who is below 18 years of age.]
ORIGIN AND JOURNEY OF THIS APPEAL:
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 th[e appellant to hold a fresh GCM, on the charges related to offences committed by the respondent after he attained the age of 18 years.

WHAT IS THE OFFENCE COMMITTED BY THE RESPONDENT?
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.

CONFESSION OF THE RESPONDENT:
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.
Para 9 .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

I Points discussed:
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.[para 14]
Birichh Bhuian & Ors. v. State of Bihar, AIR 1963 SC 1120,
Kamalanantha & Ors. v. State of T.N., AIR 2005 SC 2132;
State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372.

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. “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.
Para 23.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.

II Point of Law discussed in the case:
1.  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. [PARA 17]
2. 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.

Cases referred supporting the above points:
(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) 7SCC 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).

1. There would be “failure of justice”; not only by unjust conviction, but also by acquittal of the guilty,
2. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. [para 20]

Cases referred supporting the above point of law:
Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra AIR1973SC2622
Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114
Rattiram & Ors. v. State of M.P., AIR 2012 SC 1485
Bhimanna v. State of Karnataka, AIR 2012 SC 3026

III POINTS DISCUSSED:
1.The issue of the liberal approach adopted by the court to grant an unwarranted acquittal,
2. 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.[para 21]
Cases refered in support of the above point:
Sucha Singh v. State of Punjab, AIR 2003 SC 3617;
S. Ganesan v. Rama Raghuraman & Ors., (2011) 2 SCC 83)
Ramesh Harijan v. State of U.P., AIR 2012 SC 1979,

IV Points discussed:
“failure of justice”
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. “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.[para 22]

CASES REFERRED IN SUPPORT OF THE ABOVE POINTS:
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)

V Point of law discussed [para 23]:
1. 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.
Cases refered in support of the above point:
Delhi Administration v. Gurudeep Singh Uban, AIR 2000 SC 3737,
Girimallappa v. Special Land Acquisition Officer M & MIP & Anr., AIR 2012 SC 3101)

CONCLUSION:
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.
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.

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