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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4465 of 2005

Union of India & Ors.  … Appellants

Versus

Ex-GNR Ajeet Singh                          … Respondent

J  U D G M E N T

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

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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.   

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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.  

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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  as  a  juvenile.   The  High  Court,  

therefore, directed release of the respondent forthwith. However, in  

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relation to particular charges that were related to offences committed  

by him after attaining the age of 18 years, the appellant was given  

liberty to proceed in accordance with law against him de novo.   

         Hence, this appeal.

3. Shri Paras Kuhad, learned ASG appearing for the appellants,  

has submitted that the High Court has committed an error by holding  

that the entire GCM proceedings stood 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  

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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 issued to the respondent read  

as under:-

i) Charged  under  Army  Act  Section  52(a)-  theft  of  30  

Grenade Hand No.36 High Explosive and160 rounds of  

5.56 MM INSAS on 17/18.3.2002.

ii) Charged under Army Act Section 52(a) - theft of carbine  

machine gun 9 MM on 27.9.2002.

iii) Charged under Army Act  Section 39(a)  –  absent  from  

duty without leave from 26.2.2002 to 8.3.2002.

iv) Charged under Army Act  Section 39(a)  –  absent  from  

duty without leave from 12.6.2002 to 2.9.2002.

v) Charged under Army Act  Section 39(a)  –  absent  from  

duty without leave from 4.9.2002 to 27.9.2002.

vi) Charged  under  Army  Act  Section  69  –  possessing  

counterfeit seal with intent to commit forgery contrary to  

Section  473  of  Indian  Penal  Code,  1860  (hereinafter  

referred to as `IPC’).

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7.     We  have  summoned  the  original  record  of  the  GCM  

proceeding that makes it clear that the respondent was provided with  

a defense counsel, namely, Dr. Balbir Singh, a practicing advocate at  

the aforesaid GCM proceedings. Secondly, it also becomes clear that  

no witness was called in the defence by the accused. Thirdly, it is  

evident that he did not cross examine the court witnesses, and thus  

Rule  141(2)  and 142(2)  of  the  Army Rules  were  complied  with.  

Upon being asked in question 16 whether the accused wanted to  

address the Court, he answered in the affirmative and stated:

“……… that I am really ashamed of my acts  and  really  regret  my  acts.  The  past  seven  months  I  have  been  attached  to  this  Regiment  and  the  misery  and  embarrassment  which  I  am  undergoing  is  more than a punishment. My family is also  dependent on me for a permanent source of  income.  I  have  a  younger  sister  whose  marriage’s  responsibility  is  also  on  my  shoulders.  I  am  a  soldier  and  have  just  started my career. I request the Honourable  Judges to have mercy on me and give me a  chance  to  serve,  I  shall  never  repeat  such  acts. I further request the Honourable Judges  not to close all the ends of my career and life  at  this  early  age  of  service  and  give  mea  chance  to  redeem  my  prestige  as  well  as  keep up the aspirations of my parents.”

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8. Furthermore, 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.

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.  

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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  therefore,  that  the  Prosecution  Witness  present  before  the  Court, may please be allowed to retire.”  

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 him.   

10. Undoubtedly, given the date of birth of the respondent as per  

the  service  record  is  20.4.1984,  he  attained  18  years  of  age  on  

20.4.2002.   Accordingly,  the  charge  nos.  2,  4,  5  and  6  relate  to  

offences that the respondent committed after attaining the age of 18  

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years.  Admittedly, during the GCM proceeding, the respondent did  

not raise the plea of being a juvenile, even though he was a juvenile at  

the time of commission of some of the offences.   

11. The  relevant  Army  Rules,  1954  (hereinafter  referred  to  as  

`Army Rules’), which may be attracted in this appeal read as under:-

“51. Special  plea to the jurisdiction.  —  (1) The accused,  before pleading to a charge, may offer  a special plea to the  general jurisdiction of the court, and if he does so, and the  court considers that anything stated in such plea shows that  the  court  has  no  jurisdiction  it  shall  receive  any  evidence  offered in support, together with any evidence offered by the  prosecutor  in  disproof  or  qualification  thereof,  and,  any  address  by  or  on  behalf  of  the  accused  and  reply  by  the  prosecutor in reference thereto.

xx  xx  xx  xx

52. General plea of “Guilty” or “Not Guilty”

(1)  ……..

(2)   If an accused person pleads “Guilty”, that plea shall  be recorded as the finding of the court; but before it is  recorded,  the  presiding  officer  or  judge-advocate,  on  behalf  of  the  court,  shall  ascertain  that  the  accused  understands  the  nature  of  the  charge  to  which  he  has  pleaded guilty and shall inform him of the general effect  of  that  plea,  and  in  particular  of  the  meaning  of  the  charge  to  which  he  has  pleaded  guilty,  and  of  the  difference in procedure which will be made by the plea  of guilty, and shall advise him to withdraw that plea if it  appears from the summary of evidence that the accused  ought to plead “Not Guilty”.

xx    xx    xx   xx

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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  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  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 offences.

79. Separate charge-sheets. —

(1)    xx         xx         xx (2)   xx         xx         xx (3)   xx         xx         xx (4)   xx         xx         xx

(5)  Where  a  charge-sheet  contains  more  than  one  charge, the accused may, before pleading, claim to be  tried separately in respect of any charge or charges in  that  charge-sheet,  on  the  ground  that  he  will  be  embarrassed in his defence if he is not so tried separately;  and in such case the court  unless they think his  claim  unreasonable,  shall  arraign and try the  accused in  like  

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manner as if the convening officer had inserted the said  charge or charges in different charge-sheets.”

(Emphasis added)

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 decided 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. Thus, the case  

ought to have been examined by the High Court keeping in mind, the  

principles/  law  applicable  in  a  criminal  trial.  The  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  

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`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.    

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  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.

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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  

thereof,  particularly  Sections  15,  16,  18,  19  and  20,  render  

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 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 between an offence  

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punishable under the IPC or one that is 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  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;  Babla @  

Dinesh v.  State of  Uttarakhand,  (2012)  8 SCC 800 and  Abuzar  

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Hossain @ Gulam 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 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  

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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 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 the   accused can seek benefit under the orders of   the court.”  

                                                     (Emphasis added)

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(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 Karnataka, AIR 2012 SC  

3026)

21. In Ramesh Harijan v. State of U.P., AIR 2012 SC 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: 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 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  

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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.  (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:  

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Girimallappa v.  Special  Land Acquisition Officer M & MIP &  

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 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.  

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 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, however, his conduct  

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reminds  one  of  situations  when  the  “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 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  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  of  the  order  could  not  render  the  GCM  

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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 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.

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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.  

….……………………………...................................J.                 (Dr. B.S. CHAUHAN)

…..………………………….. ...................................J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI; APRIL 2, 2013

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