Tuesday, April 08, 2008

Shoukat Hussain Guru's case for retrial

Shoukat Hussain Guru is one of the convicts in the Parliament attack case, having been sentenced to 10 years R.I. He challenged his conviction (strangely by the Supreme Court as the trial court did not try him for the offence for which he was convicted and sentenced) through a review petition and later by a curative petition, both of which were rejected by the Supreme Court. His Writ Petition (Crl. No.106/2007) raising the same grounds argued in the review and curative petitions is being heard by the Bench of Justices P.P.Naolekar and V.S.Sirpurkar. On March 27, Shoukat’s counsel, Shanti Bhushan had argued in favour of Shoukat’s retrial. His arguments are worth summarizing in this post.

1. Shoukat was accused of having information about criminal conspiracy, but he did not inform the police deliberately. This constitutes an offence under S.123 IPC (concealing with intent to facilitate design to wage war). But charges under this section were never framed against him and he was never given an opportunity to defend himself on this point. He was first convicted and awarded capital punishment by the trial court, and was confirmed by the Delhi High Court . The Supreme Court while acquitting him of the charge of criminal conspiracy, reduced his sentence to 10 years, finding him guilty under S.123 IPC.
2. According to S.39 Cr.P.C., every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the specified sections of the IPC, shall in the absence of any reasonable excuse, forthwith give information to the nearest Magistrate or police officer of such commission or intention. There are three defences available to a person accused of concealing such information: a: I had a reasonable excuse b: I did inform c: I did not conceal it intentionally.
3. The SC simply assumed that Shoukat had not informed: He was not given the right to produce evidence. He could say, for instance, that he did inform the Police, but they did not take it seriously. If he can prove that he was threatened if he shared information with the police, that would be a case of reasonable excuse. If he had to disprove it, he should be given reasonable opportunity.
4. There are inherent powers of the Court, even after review is dimissed.

Justice PPN asked, “Did not the Court exercise inherent powers when the curative petition was heard? How many times can a party ask the Court to exercise inherent powers?
Shanti Bhushan: "Once the Court is satisfied that a mistake had happened, then it should correct the mistake, to regain confidence of the public. Court must be concerned with both justice and procedure. Both review and curative petitions were dismissed without giving him an opportunity to defend himself. To err is human, to correct is a matter of judicial function. There are no rules for curative petitions. No notice was given by the Supreme Court before convicting him. It is a total contradiction of Article 21. The Court dismissed the review petition by circulation. Can Supreme Court do anything, convict, impose a sentence, not asked for by anyone. In the Pinochet case, the House of Lords laid down a principle. They recalled their own order. If Shoukat’s conviction and sentence stood, there could be adverse public opinion. Shoukat will be released in September 2009 in due course, having completed 10 years R.I. This Court has set aside earlier Bench’s order in the Antulay case, and in V.C.Mishra case

Curative Petition has failed. Why it failed I can’t say. No opportunity was given. It is not a minor offence of S.121 IPC. It has got several ingredients. It is a fit case to order retrial under Article 145 (1) [c] . The Antulay case was heard by 7 Judge Bench (1988 2 SCC, p.602), and it is binding on you."

The ASG, Gopal Subramanium began his arguments suggesting that Shoukat was guilty of concealing with intent and illegal omission under S.123 IPC. The judgment has laid down the elements of evidence against him. The reasons for invoking S.123 have been given. He knew about the design. S.123 is attracted in terms of the facts found by this Court. Lesser charge is subsumed. Justice PPN: But it is a separate charge.

The ASG will continue his arguments.
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