- (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 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. 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. 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. 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.;