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2013 (4) TMI 945
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.... 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 ....
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....ood 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 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 issue....
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.... 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, 2003, during the examination of the fifth witness for the prosecution (Major S.R. 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 th....
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....ry 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 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 offe....
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.... 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. 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 t....
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....es 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 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....
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....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: Girimallappa ....