Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. Unfortunately, the attention of the High Court was not drawn to the aforesaid relevant rules and to the scope of their application to the facts of the present case. The High Court has decide(j the case in a laconic manner, without considering the gravity.of the charges against the respondent and without deliberating on whether, in light of such a fact-situation, any prejudice had been caused to the respondent. Questions with respect to whether there has been any failure of justice in the present case and whether in light of the facts of the case, the entire GCM proceedings actually stood vitiated, as the respondent indeed could not be tried by the GCM for those charges that had been committed when the respondent was a juvenile.
13. Though the case is labeled as a civil appeal, in fact it is purely a criminal case. GCM is a substitute of a criminal trial. Th Lis, the case ought to have been examined by the High Court keeping in mind, the principles/ law applicable in a criminal trial. Th~ respondent 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. [2013) 5 S.C.R.
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 B 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 D 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 E 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 thereof, particularly Sections 15, 16, 18, 19 and 20, render F unambiguously, the legislative intent behind the JJ Act, i.e. of the same being a special law that would have an overriding effect on any other statute, for the time being in force. Such a view stands further fortified, in view of the provisions of Sections 29 and 37, that provide for the constitution of Child Welfare Committee, which provides for welfare of children in all G respects, including their rehabilitation.
16. Clause (n) of Section 2 of the JJ Act defines 'offence', as an offence punishable under any law for the time being in force. Thus, the said provision does not make any distinction UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 639 [DR. B.S. CHAUHAN, J.] between an offence punishable under the IPC or one that is A punishable under any local or special law.
17. The provisions of the JJ Act have been interpreted by this Court time and again, and it has been clearly explained that raising the age of "juvenile" to 18 years from 16 years would apply retrospectively. 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. Furthermore, it is the date of the commission of the offence, and not the date of taking cognizance or of framing of C 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. (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; Bab/a@ Dinesh v. State of Uttarakhand, (2012) 8 SCC 800 and Abuzar Hossain @ Gu/am 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 G 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 c 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 be "failure of justice"; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious 'prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 641 [DR. B.S. CHAUHAN, J.] the accused can seek benefit under the orders of the A court." (Emphasis added) (See also: Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622; Rafiq Ahmed@ Rafi v. State of U.P., AIR 2011 SC 3114; Rattiram & Ors. v. State of M.P., AIR 2012 SC 1485; and Bhimanna v. State of Kamataka, AIR 2012 SC 3026)
21. In Ram.esh Harijan v. State of U.P., AIR 2012 SC c 1979, this court dealt with 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: D 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 E 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. "Courts exist to dispense G 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 H [2013) 5 S.C.R. 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 Kamataka,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 Kamataka, 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: Girimal/appa v. Special Land Acquisition Officer M & M/P & Anr., AIR 2012 SC 3101) 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 equitabie 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.
24. Rule 51 of the Army Rules requires that the accused must raise the objection in respect of jurisdiction at an early stage of the commencement of proceedings. Had the respondent raised the issue of juvenility at the appropriate stage, the authority conducting the GCM could have dropped the charges in respect of offences committed by him as a G juvenile. Further, Rule 72 provides for mitigation of sentence in case of invalidity in framing of charges or on finding thereon. The respondent pleaded guilty to all the offences, though at a belated stage. As a member of the Indian Army, the respondent was duty bound to protect the nation. Regrettably, UNION OF INDIA & ORS. v. EX-GNR AJEET SINGH 643 [DR. B.S. CHAUHAN, J.] however, his conduct reminds one of situations when the A "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 C 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 D 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 E of the order could not render the GCM proceedings invalid in entirety. Therefore, the valid part of the proceedings is required to be saved by applying the principle of severability of offences.
27. The respondent could have asked for a separate trial of different charges as provided under Rule 79. However, in that case the punishment would have been much more severe, as all the sentences could not run concurrently. In fact, the respondent has benefited from the joint trial of all the charges and thus, by no means can he claim that his cause stood prejudiced by resorting to such a course. The High Court ought G 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. K.K.T. Appeal allowed.