Union Of India & Ors vs Ajit Singh

2. The facts and circumstances giving rise to this appeal are that:-

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.

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 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.

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 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.

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 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)

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.

APRIL 2, 2013