In a hard-hitting article in Tehelka, the counsel for Shoukat Hussain Guru, Shanti Bhushan has attacked the two Judge Bench which delivered the judgment in the Shoukat case as not worthy of being "great Judges" who, according to him, admit mistakes and correct them. The propriety of the counsel making a public attack on the Bench after losing a case may be debatable, but the article deserves a close read for the issues it raises. Striking is the similarity which Bhushan seeks to establish between this case and the ADM Jabalpur case. Secondly, Bhushan points out that no argument was made by the public prosecutor during the protracted hearing in the SC that even if no charge of conspiracy was proved against Shaukat — and he had to be acquitted of all the 12 charges against him — he could still be convicted for an offence under Section 123 IPC with which he had not been charged.
Bhushan wrote: "I have no doubt that if the point had been raised by the public prosecutor, during the hearing or even if the judges had raised it, the bench of Justices Reddy and Naolekar, would not have convicted and sentenced Shaukat under Section 123 IPC after seeing the judgement in Shamsaheb Multani case."
Bhushan's article is noteworthy for the subtle point which he makes that Section 123 IPC cannot be a minor offence (as declared by the Supreme Court) because the burden of proving his innocence is on the accused. Clearly, the relevance and validity of Section 222 Cr.P.C., as it now stands, should be debated. There is indeed a case for amending this Section, to avoid miscarriage of justice. (My earlier posts on this can be read through this link)