Mohammad Irfan vs State of Karnataka

26 – Unlawful activities (Prevention) Act, 1967 – ss. 10 and 13 – Code of Criminal Procedure, 1973 – s.196.

Sentence/Sentencing: Enhancement of quantum of punishment by the High Court from seven years to that of life imprisonment for offence punishable u/s. 121 A IPC – Justification of – Held: If conspiracy as entered into by the accused-members of LeT, to cause large scale destruction of public property, multi-national companies, places of worships, by causing bomb explosions, attacks on innocent people, had been carried out, it would have resulted in great damage and prejudice to the life and well-being of the members of the general public as well as loss to the public property – Such conspiracies to cause danger to public property or to the safety of the members of the general public ought to be dealt with strictly – Thus, the High Court justified in enhancing the sentence – Penal Code, 1860 – s. 121A.

Code of Criminal Procedure, 1973: s.196 – Prosecution for offences against the State and for criminal conspiracy to commit such offence – Sanction u/s. 196 – Plea that in terms of s. 196, the sanction to prosecute the accused for having committed offence punishable inter alia under Chapter VI of the IPC was mandatory and the sanction placed on record did not satisfy the requirements – Correctness and validity of the sanction accorded u/s.196 – Held: Matter was considered by the Office of the Home Minister and the Chief Minister and consent was accorded to the proposal put up in usual course of business, whereafter, the communication was addressed by the Under Secretary – Thus, it cannot be said that the sanction was not accorded by the competent authorities – Sanction in terms of s.196 was valid and proper.

Dismissing the appeals, the Court

HELD: 1.1 As regards the correctness and validity of the sanction accorded under Section 196 of the Code of Criminal Procedure, 1973, the facts on record as set out in the decision of the High Court disclose, that the matter was considered by the Office of the Home Minister and the Chief Minister and consent was accorded to the proposal put up in usual course of business, whereafter, the communication was addressed by the Under Secretary. In the face of these facts, the submission that the sanction was not accorded by the competent authorities must be rejected. Consistent with the findings rendered by the courts below, the sanction in terms of Section 196 of the Code was valid and proper. The matter regarding sanction accorded in respect of offences punishable under the Explosives Substances Act and the Arms Act was also dealt with by the High Court in extenso and the conclusion arrived at does not call for any interference. [Para 30][879-E-G]

1.2. The evidence on record can be classified mainly as oral testimony of prosecution witness Nos. 1 to 8 and 13 and evidence regarding recoveries. It is true that prosecution witness Nos. 1 to 8 and 13 turned hostile and did not support the case of prosecution fully. However, it emerges from their testimony that some of them were trustees of the trust, minutes book of which was produced on record. The witnesses accepted the fact that the meetings of the trust had taken place and that some of the accused did attend the meetings. PW4 gave details about the presence and participation in the meetings by various accused including A-1 and deposed to the fact that said witness had dropped A-1 at the railway station on his bike. It is thus clear that though these witnesses did not support the prosecution case fully, some of the features of the prosecution case were substantiated through the testimony of these witnesses. The law on the point is clear that even if a witness is declared hostile, the evidence of such witness cannot be rejected in toto but the correct approach is to accept it to the extent his version is found to be dependable on a careful scrutiny thereof. Furthermore, the recoveries of books and literature were completely supported by the concerned Panch witnesses and the Panchanamas on record. The books and literature did carry inflammatory content and messages. The translations of the original versions in Urdu were placed on record by the prosecution. The voluntary statements which led to such recoveries and the recoveries themselves were also proved by the prosecution. One important piece of material recovered from A-2 was the Diary. The tenor and text of the contents were captured quite correctly by the trial court in its judgment. The signatures of the concerned accused were proved beyond any doubt through the evidence of PW67, handwriting expert. It thus stood established that the accused had assembled together with the intent as disclosed from the minutes of the meetings of the Trust. The explosive substances, details of which are given, were recovered from A-2, A-3, A-4 and A-6. Voluntary statements of said accused and consequential recoveries effected through Panchas were also duly proved by the prosecution. [Para 31][879-H; 880-A-G; 881-A]

1.3. From the facts on record, it emerges that on 10.12.2003, when a meeting was organized at the house of F at place ‘C’, it was attended by A-1, A-2, A-4 and A-6 along with other members including some of the Prosecution witnesses. The minutes of the meeting disclosed the intent and the objective with which the materials, such as guns and bombs were to be procured or collected. The signatures appended below the minutes were proved by PW-67, Hand Writing Expert. The presence of A-1 in ‘C’ on the day in question was completely established. His presence assumes significance as he was not a local person. The presence of A-1 on the day in question was adverted to by some of the prosecution witnesses. It is true that apart from these pieces of evidence, nothing substantial could be pointed against A-1 but his involvement in the scheme as one of the driving forces for the entire design, was quite evident. The intent and objective disclosed from the minutes of the meeting was carried forward in the subsequent meetings. The recoveries made from and at the instance of the other accused show that the very intent and object as discussed in the first meeting was being carried forward by these accused with the acquisition and possession of the arms and ammunition. The kind of material recovered from them by itself shows the potential danger. Nothing was brought on record to show the reason or the purpose for acquisition and possession of such potentially dangerous material. These facts not only show that the basic elements of the conspiracy stood well established but also proved the involvement of A-1. Going by the law laid down by this Court, A-1 cannot escape the liability only on the ground that no arms and ammunition or any inflammatory material or literature were actually recovered from him. [Para 34][886-AH]

1.4.The minutes of the first meeting dated 10.12.2003 were written in Kannada language, at the end of which the signatures were appended by all the concerned including A-1. As admitted by the Investigating Officer, A-1 did not understand Kannada language. A serious objection was, therefore, raised about reliability of said document to fasten the liability on A-1. The presence of A-1 in ‘C’ on the relevant day stood well established. The fact that all the concerned accused got together on that day in the house of PW-4 also stood established. The tenor of the discussion in the meeting and the fact that it was not found appropriate by some of the witnesses also found mention in the testimony of the witnesses. The handwriting expert found the signature to be that of A-1. In the premises, a mere submission that the signatures of the accused were obtained subsequently, without any foundation, cannot be entertained. The signatures were definitely made in the circumstances suggested by the prosecution. [Para 35(A)][887-A-D]

1.5 The submission as regards the gap between the first meeting and the recovery of arms and explosives from some of the accused, it was highlighted that there was about three years’ gap between these two circumstances and it was stressed that there was nothing on record that during this interregnum, A-1 was in touch with any of the accused or had any role in procuring the arms and explosives, which were eventually recovered pursuant to disclosures made by the concerned accused. The conspiracy, the basic features of which were structured in the first meeting of 2003, was a continuing one; which is evident from the minutes of the subsequent meetings and translation of the intent into procurement of arms and explosives. It can neither be stated that the thread which was running through subsequent events and circumstances was broken or that the link between the first meeting and the subsequent stages was in any way snapped. [Para 35(B)][887-E-H]

1.6 It was submitted that the case of the prosecution that A-1 had signed the minutes of the first meeting was not put to said accused during his examination under Section 313 of the Code. The record shows that questions about the report of PW67, the handwriting expert, and about the meeting at ‘C’ and that A-1 had gone to ‘C’ were put to the accused in his examination under Section 313 of the Code. These questions definitely invited the attention of A-1 to the circumstances against him. The substantive evidence about the opinion of the handwriting expert which had found the signature of A-1 below the minutes of the first meeting and the circumstances about the meeting at ‘C’ and that A-1 had gone to ‘C’ were thus put to the accused. The instant submission, therefore, does not merit acceptance. [Para 35(C)][888-A-D]

1.7 What constitutes an offence under Section 121 IPC is the waging of war or attempt to wage war or abetting of waging of such war against the Government of India. Section 121-A IPC, however, deals with conspiracy to commit offences punishable under Section 121 IPC as well as conspiracy to overawe by force, the Central Government or any State Government. In terms of its application, the width of Section 121-A is thus not confined to conspiracy to commit offences punishable under Section 121 of the IPC alone. [Paras 38, 39][898-C-G]

1.8. As the text of the Section 121A shows, persons who plan to overawe the Central or the State Government by criminal force or show of criminal force would be guilty of offence of entering into conspiracy in terms of Section 121A IPC. The dictionary meaning of the expression “overawe” is to subdue or inhibit with a sense of awe. The expression “overawe” would thus imply creation of apprehension or situation of alarm and as rightly held by the Division Bench, it would not be necessary that the danger should be one of assassination of or of bodily injury to the members of the machinery or apparatus of the Government but the danger might as well be to public property or to the safety of members of the general public. [Para 40][900G; 901-A-B]

1.9. The conspiracy in the instant case, the intent of which was clear from the minutes of the meetings and the consequential acquisition of arms and explosives to effectuate the purpose and intent of said conspiracy, would thus come well within the latter part of the conspiracy dealt with in Section 121A IPC. As the explanation to Section 121A IPC discloses, for an offence of conspiracy, it would not be necessary that any act or illegal omission must take place in pursuance thereof. Thus, even though no untoward incident had actually happened as a result of the conspiracy, the matter would still come within the four corners of Section 121A IPC. The conviction recorded against the accused under Section 121A IPC does not therefore call for any interference. [Para 41][901-B-D]

1.10. As regards the submission based on Section 120-B read with Section 116 IPC, section 120-B IPC would apply only when “no express provision is made in this regard for the punishment of such a conspiracy”, since an express provision for particular kind of conspiracy is dealt with specifically in Section 121A IPC, the provision contained in Section 120-B of the IPC would have no application. The submission, therefore, merits rejection. [Para 42][901-E]

1.11 The submission that there was no occasion for the High Court to enhance the quantum of punishment from seven years which was awarded by the trial court to that of life imprisonment for the offence punishable under Section 121-A IPC, the conspiracy as disclosed in the instant matter, if it had been carried out, would have resulted in great damage and prejudice to the life and well-being of the members of the general public as well as loss to the public property. Such conspiracies to cause danger to public property or to the safety of the members of the general public ought to be dealt with strictly. Considering the acquisition of substantial quantity of arms and explosives as well as the intent disclosed by the diary, and other materials on record, the High Court was right in enhancing the sentence. [Para 43][901-F-H; 902-A]

Kehar Singh and ors. vs. State (Delhi Admn.) AIR 1988 SC 1883 : 1988 SCR Suppl (2) 24; Nazir Khan and others v. State of Delhi AIR 2003 SC 4427 : (2003) 8 SCC 461 : [2003] (2) Suppl. SCR 884; State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC

600 : [2005] (2) Suppl. SCR 79; Yomeshbhai

Pranshankar Bhatt v. State of Gujarat (2011) 6 SCC

312 : [2011] (6) SCR 958; C. Muniappan & Ors. Vs. State of Tamil Nadu (2010) 9 SCC 567 : [2010] (10) SCR 262; Radha Mohan Singh & Ors. Vs. State of U.P. (2006) 2 SCC 450 : [2006] (1) SCR 519; Lal Singh v. State of Gujarat and Another (2001) 3 SCC 221 : [2001]

(1) SCR 111; Ajay Aggarwal v. Union of India and Others 1993 (3) SCC 609 : [1993] (3) SCR 543; Mir Hasan Khan vs. State AIR 1951 Patna 60 : 1951 Cr.L.J. 462; Ramanand v. State 1951 Cr.LJ 462 - referred to.