2005 (8) TMI 663 - SC - Indian Laws

Death sentence upheld for one, Section 123 IPC applied, acquittals granted in high-profile case

The court upheld the death sentence for Mohd. Afzal, convicted Shaukat Hussain Guru under Section 123 IPC with a sentence of 10 years, and acquitted ... Whether Section 120B applies to POTA offences or Section 3(3) alone applies is not a matter on which a definite conclusion should be reached ahead of the trial? Whether the appeal filed by Mohd. Afzal and the death sentence imposed upon him to be confirmed? Issues Involved:1. Validity of sanction orders.2. Non-addition of POTA offences at the beginning.3. Framing of charges.4. Admissibility and voluntariness of confessions.5. Admissibility of intercepted communications.6. Proof and authenticity of call records.7. Conviction under various sections of POTA, IPC, and Explosive Substances Act.8. Sentencing and appropriateness of death penalty.Detailed Analysis:1. Validity of Sanction Orders:The court examined whether the sanctions under Section 50 of POTA and Section 196 of Cr.P.C. were accorded by a competent authority. It was argued that the Lt. Governor of Delhi, acting as the Administrator of the National Capital Territory, was competent to grant the sanction. The court found that the sanctions were valid as the Lt. Governor acted within his authority under Article 239 and 239AA of the Constitution and Section 2(h) of POTA. The court also addressed the issue of proper application of mind by the sanctioning authority and concluded that the sanction orders were valid as they were based on relevant material and facts.2. Non-addition of POTA Offences at the Beginning:The court considered whether the delay in invoking POTA was deliberate to circumvent procedural safeguards. It was held that the initial investigation under ordinary law was justified, and the subsequent addition of POTA offences was not mala fide. The court found no manipulation of the FIR and concluded that the non-invocation of POTA initially was not intended to bypass legal requirements.3. Framing of Charges:The court examined the contention that the charges were defective, particularly the charge under Section 120B IPC. It was held that the charges were not fundamentally defective, and there was no prejudice caused to the accused. The court emphasized that the accused were not misled by the charges, and they understood the case they had to meet.4. Admissibility and Voluntariness of Confessions:The court scrutinized the confessions made to the police officers under Section 32 of POTA. It was held that the confessions were inadmissible due to non-compliance with procedural safeguards, such as informing the accused of their right to consult a legal practitioner and producing them before a Magistrate. The court emphasized the importance of these safeguards to ensure the voluntariness of confessions.5. Admissibility of Intercepted Communications:The court addressed the legality and admissibility of intercepted phone calls. It was held that the intercepted communications were admissible under the general law of evidence, despite non-compliance with POTA's procedural requirements. The court relied on precedents that allowed the use of illegally obtained evidence if it was relevant and reliable.6. Proof and Authenticity of Call Records:The court examined the admissibility and reliability of call records. It was held that the call records were admissible as secondary evidence under Sections 63 and 65 of the Evidence Act. The court found no manipulation or material deficiency in the call records and concluded that they were reliable.7. Conviction under Various Sections of POTA, IPC, and Explosive Substances Act:The court analyzed the evidence against each accused and their involvement in the conspiracy. It upheld the conviction of Mohd. Afzal under Section 120B IPC read with Section 302 IPC and Section 3(3) of POTA, sentencing him to death. Shaukat Hussain Guru was convicted under Section 123 IPC and sentenced to 10 years of rigorous imprisonment. The court acquitted S.A.R. Gilani and Afsan Guru due to insufficient evidence.8. Sentencing and Appropriateness of Death Penalty:The court affirmed the death sentence for Mohd. Afzal, considering the gravity of the crime and its impact on national security. It emphasized that the attack on the Parliament was an act of waging war against the Government of India, justifying the capital punishment. The court found that the circumstances of the case met the criteria for the 'rarest of rare' cases warranting the death penalty.Conclusion:The court upheld the death sentence for Mohd. Afzal, convicted Shaukat Hussain Guru under Section 123 IPC with a sentence of 10 years, and acquitted S.A.R. Gilani and Afsan Guru. The judgment emphasized the importance of procedural safeguards, the admissibility of evidence, and the gravity of the crime in determining the appropriate punishment.