FACTS OF THE CASE-
On 13th December, 2001, five heavily armed persons entered the premises of Parliament House complex and killed the security personnel on the duty.
The gun battle between the terrorists and the security guards went on for 30 minutes which led to the death of all the five terrorists and 13 guards and In the gun battle that lasted for 30 minutes or so, these five terrorists who tried to gain entry received fatal injuries (9 persons including 8 security personnel and 1 gardener succumbed to the bullets of the terrorists and 16 persons including 13 security men received injuries.)
Jaish-E-Mohammed, one of the banned terrorist organisation under section 35 of Unlawful Activities (prevention) Act , 1967 claimed the responsibility of the dastard act and following the investigations for seven days the accused which were suspected to have a possible involvement were also affiliated to the same organisation. The four accused were Mohd. Afzal, Shaukat Hussain, S.A.R. Gelani and Afsan Guru (Navjot Sandhu).
After the investigations which went on for a short period of 17 days the investigating agency filed the report under section 173 of Cr.P.C and named four accused. The four accused were Mohd. Afzal, Shaukat Hussain, S.A.R. Gelani and Afsan Guru (Navjot Sandhu).
Accused were charged under various sections of Indian Penal Code (for short ‘IPC’), the Prevention of Terrorism Act, 2002 and the Explosive Substances Act by the designated Special The designated Special Court presided over by Shri S.N. Dhingra and tried the accused on the charges. The trial went on for six months and as much as 80 witnesses were examined from the prosecution side and 10 witnesses were examined from the side of defence. It is recorded that around 330 documents were exhibited by the court in the case.
The three accused, namely, Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Geelani were convicted for various offences under Sections 121, 121A, 122 read with Sections 302 & 307 of Indian Penal Code (IPC). Also Section 120B IPC and sub-sections (2), (3) and (5) of Section, sub-Sections (2), (3) & (5) of Section 3 of POTA and Section 4(b) of the same act and Section 3 & 4 of Explosive Substances Act.
ISSUES RAISED BY THE COURT-
“Broadly categorised, issues which arise for consideration may be set out. They are:
1. Whether there have been breaches of statutory safeguards during investigation? If yes, the consequence thereof?
2. What is the status of the investigation carried out till 18.12.2001 in the context of the prosecution of the accused persons for an offence under POTA?
3. Is there a legal and valid sanction for the trial of the accused persons for offences under Penal Code, 1860, Explosive Substances Act and POTA?
4. Whether any charges could be framed against the accused persons for offences under the Penal Code, 1860?
5. Whether, the trial of the accused persons stands vitiated, in that, prejudice has been caused to the accused by imperfect framing of charges?
6. Has there been a denial of justice to accused Mohd. Afzal by denying him adequate legal aid?
7. Whether the trial stands vitiated by receipt and admission of inadmissible evidence?
8. Whether the correct principles of law pertaining to conduct, disclosure, recovery, and confessions have been applied by the Designated Judge?
9. Whether evidence relied upon by the Designated Judge stood validly proved and was admissible in a criminal trial?
10. Whether the provisions of Section 313 Cr.P.C. have been complied with, in a letter of spirit? If not, effect thereof?
11. Lastly, whether the judgment of the Designated Judge is sustainable or not?”
DECISION OF THE COURT-
The special court which was presided by Mr S.N.Dingra convicted three of the four accused who were Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Geelani under section 121, 121A, 122 read with section 302, 307, 120B of Indian Penal Code and under Prevention of Terrorist Activities Act awarded death sentence. The fourth accused Navjot Sandhu was acquitted except under section 123 IPC and sentenced for five years imprisonment.
DELHI HIGH COURT
When the case was presented before the Delhi HC for the confirmation of the judgement given by the special court for the death sentence. The divisional bench passed the following orders:-
It confirmed the death sentence of Mohd. Afzal and Shaukat Hussain Guru.
The award of the death sentence was given under section 121 of the Indian Penal Code.
S.A.R. Geelani was acquitted by the petition filed by him along with Navjot Sandhu was already acquitted by the special court.
The Delhi HC divisional bench judgement gave rise to seven appeals to Hon’ble Supreme Court of India: –
Two appeals by Shaukat Hussain Guru On appeal by Mohd. Afzal Guru
Four appeals by State – National Capital Territory of Delhi against the acquittal of Navjot Sandhu and S.A.R. Geelani.
The Delhi HC gave the judgement on the basis on two major contentions which are:-
• Confessions of the co-accused
The court while examining the confession of the co-accused should have taken following propositions into consideration which were laid down in Ahmed anr. v. State of Rajasthan [2003 (9) SCC 673] ” In regard to the use of such confession as against a co- accused, it has to
be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring
corroboration when such confession is to be used against a co-accused.”
The nature of corroboration is of a general nature as used against both the maker and the co-accused, unless the court concluded that such corroboration should be on the material facts of the particular case and a generalised idea or proposition cannot be adopted and applied in every case as the facts of each case differ. In the present scenario confession against the maker and
the co- accused is absolutely general in nature it does not lay perfect grounds for the Court in the appropriate case to base the conviction on the confession of the co-accused without even general corroboration.
“The voluntariness and reliability of confession should be matter tested by the court. The admission of such confession would also be subject to the observance of the other provisions of Section 32 of POTA which are in the nature of procedural safeguards aimed at ensuring that
the confessions are made by the accused in an atmosphere free from threat and inducement” as in the judgement of Ahmed v. State of Rajasthan.
• Call records and its authenticity
One of the major issues raised from the side of the accused was the inadmissibility of the electronic records (mobile phone call records) which the prosecution has produced for consideration in the appeal, the counsel on behalf of the accused raised the issue of credibility and reliance on the telephone records which were produced by the prosecution. The records lose their credibility because there was no certificate produced by the prosecution which is necessary for admitting any electronic record under Section 65B(4) of the Evidence Act.
In the absence of the certificate issued under sub-Section (2) of Section 65B of the Indian Evidence Act, the information provided by the electronic record cannot be adduced in evidence and also in absence of a “competent” witness accustomed with the functioning of the computers during the time printouts were taken the secondary evidence under Section 63 is also inadmissible. The apex Court concluded that the cross-examination of competent witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient to prove the call records.
Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Geelani were convicted under various acts such as Indian Penal Code (IPC), Prevention of Terrorist Act (POTA) and Explosive Substance Act for section 302 (Murder) read with section 120-B of IPC and section 3(2) of POTA. The
fourth accused Navjot Sandhu was acquitted of all the charges except for “ Concealing with intent to facilitate design to wage war” under Section 123 of IPC.
SUPREME COURT OF INDIA
On 4 August 2005, the Supreme Court, upheld the death sentence for Afzal Guru while it commuted Shaukat Hussain Guru’s sentence from death to 10 years imprisonment. Of
the three sentenced to death, SAR Geelani (who was presented as the mastermind behind the attack), Shaukat Hussain Guru and Afzal Guru, only Afzal Guru’s penalty was upheld by the Supreme Court. Guru filed a review petition before the Supreme Court seeking review
of its judgement. However, on 22 September 2005, the review petition too came to be dismissed by the Supreme Court.
In its judgement, the Supreme Court observed:
“As criminal acts took place pursuant to the conspiracy, the appellant, as a party to the conspiracy, shall be deemed to have abetted the offence. In fact, he took active part in a series of steps taken to pursue the objective of conspiracy.”
Supreme Court of India, Judgement on Appeal by Guru on 5 August 2005. The Supreme Court observed that mostly, the conspiracies are proved by the circumstantial evidence. It held that the circumstances detailed in the judgment clearly established that Guru was associated with the deceased militants in almost every act done by them in order to achieve the objective of attacking the Parliament House. It also observed that there was sufficient and satisfactory circumstantial evidence to establish that Guru was a partner in this
conspired crime of enormous gravity. It has to be noted, that in its judgement of 5 August 2005,
the supreme court admitted that the evidence against Guru was only circumstantial, and that there was no evidence that he belonged to any terrorist group or organisation. He was subsequently meted out three life sentences and a double death sentence. In October 2006, Guru’s wife Tabasum Guru filed a mercy petition with then President of India A. P. J. Abdul Kalam. In June 2007, Supreme Court dismissed Guru’s plea seeking review of his death sentence, saying “there is no merit” in it. In December 2010, Shaukat Hussain Guru was released from Delhi’s Tihar Jail due to his good conduct.
As the democratic political structure of India was challenged, it was needed to have an enhanced authority to meet the terrorist threats. It was argued that the existing laws regarding terrorism had failed to stop the militants from threatening the Indian democracy on 13th December 2001. It is imperative to bring in new laws and reduce the writings of judicial pronouncements in order to bolster the Indian legal system that, the accused, in any case can take the support of any technical glitches which may help his acquittal even after committing the crime. Also there is a need for an overhaul in the entire justice system by adoption of E-governance, internet supervision and internet friendly environment in the Judiciary.
E-Governance to the judiciary means, use of information and communication technology to smoothen and accelerate case progression to reach its logical end within the set time frame with adequate transparency and accountability so that nothing is left untouched and every aspect of the case even if relating to internet, electronic record or its admissibility is taken into consideration.
The Prevention of Terrorism Act (POTA) 2002 came into force in June 2002 and was enacted to counterfeit all the militant attacks on Indian grounds. It was made to make the anti-terrorism operations strong in India. The POTA had some relevance to the provisions in the USA Patriot
Act. Definitions of terrorists and terrorist activities have been clearly defined in the POTA.
Some of the salient features of POTA were:
POTA allowed the detention of a suspected individual for up to 180 days without filling the charges in courts. It allowed law enforcement agencies to hide the identities of the witnesses.
POTA allowed treating a confession made to the police as an admission of guilt. It was opposed to the regular Indian laws which say that a person can deny such confessions in a courtroom.
Around 800 people were arrested and jailed under the provisions of POTA. The largest number of arrests were seen in the state of Jharkhand. Some 250 people have been jailed under POTA in Jharkhand to control the rising number of Naxalites in the state.
POTA was abolished by the Manmohan Singh Government in 2014. On 17th September 2004,
their decision was approved by the Union Cabinet.
The case of Afsan Guru is remarkable in the history of India being of few attacks which were held with the intent to damage the sovereignty of the state. Although the case had many nuances relating to admissibility of electronic records and the impact it may have on the judgement, the
apex court at the end partially ruled in favour of the appellants vindicating one of accused of some charges and dismissing the appeal for the conviction of S.A.R Geelani and Afsan Guru. But after several deliberations the legislators sought to pass a law which makes electronic records admissible, in order to deal with the challenges of the 21st century.
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