Mohd. Arif @ Ashfaq vs. The Reg. Supreme Court Of India & others

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In the Supreme Court of India
Criminal Original Jurisdiction
Case No.
Writ Petition No. 77 of 2014
Petitioner
Mohd. Arif @ Ashfaq
Respondent
The Registrar
Date of Judgment
2nd September, 2014
Bench
J S Khehar, Justice, J. Chelameswar, Justice A K Sikri, Justice R N Nariman, Justice R M Lodha, Justice.

Background

Political Background 

Our judicial system is based on principles to protect innocent people. Our system gives all reasonable opportunity to the accused person. Person can only be punished when his or her guilt will be proved beyond doubt. This case is a very good example of accused getting all reasonable opportunity to prove their innocence.

International Background

International laws are also there to support fair trial in the judicial system. Article 6 of the European Convention on Human Rights, Article 8 of the American Convention on Human Rights, Article 7 of the African Charter on Human and People’s Rights, Article 13 of the Revised Arab Charter on Human Rights, Article 20 of the ASEAN Human Rights Declaration. Article 75(4) of Additional Protocol I to the Geneva Convention provides additional fair trial rights, applicable to any person facing criminal charges in relation to this type of armed conflicts.

The Roman Statute of the international Criminal Court also includes the basic requirements for a fair trial in the context of international criminal law.

Article 5 of ICJ Rules states that the Court shall determine the parties should present their argument before or after the production of evidences and of examining any witness and experts, and the number of counsel and advocates to be heard on behalf of each party, and the number of counsel and advocates to be heard on behalf of each party, shall be settle by the Court after the views of the parties have been ascertained in accordance with Article 31 of these rules.

Judicial Background

Judiciary has widely interpreted Article 21 of the Constitution. The Judiciary used Article 21, Section 302, Section 354 f Cr.P.C., Artilce 136, Article 137  and Section 368 of Cr.P.C.  to decide said case.

Facts

1. On 22.12.2000 at about 9 p.m. in the evening some intruders started indiscriminate firing and gunned down three army Jawans belonging to 7th Rajputana Rifles. This battalion was placed in Red Fort for its protection considering the importance of Red Fort in history of India . There was a Quick Reaction Team of this battalion which returned the firing towards the intruders.

2. No intruder was killed and the intruders were successful in escaping by scaling over the rear side boundary wall of the Red Fort. This attack rocked the whole nation generally and the city of Delhi in particular as Red Fort. This attack rocked the whole nation generally and the city of Delhi in particular as Rd Fort is very significant in the history which was taken over by British Army way back in 1857 and was retrieved back to India on 15.8.1947.

3. On the next day, in the morning at about 8.0 a.m., one news channel flushed the news that Lashkae-e-toiba had claimed the responsibility for the shooting incident in question.

4. Investigating officer found a bag and a clip with a mobile number. This mobile number was registered under Mohd. Arif names who accepted his involvements in this attack.

5. As per the investigation the accused appellant was a Pakistani national and joined a terrorist organization Lashkar-e- Toiba.

6. The prosecution examined as many as 235 witness and exhibited large number of documents. His wife Rehmana Yusuf Farukhi was also one of the accused in this case. She alone adduced evidence in defence and examined her own mother and tried to show that they did not know the accused was  a militant and that the money in the bank account of Rehmana Yusuf Farukhi was her own and not given by the accused.

7. The accused was convicted for the offences punishable under Section 120 B, 121 and 121 A of IPC , Section 186/353/120 of IPC read with Section 302 of IPC, Section 468/471/474 of IPC and also Section 420 read with Section 120 B of IPC.

8. The accused awarded death sentence for his conviction under Section 121 of IPC as also under section 320 read with Section 120 B of IPC by the trial court and the same ws upheld by the High Court in appeal.

9. A group Petition has come before the Hon’ble Supreme Court which was further decided by the Constitutional Bench. Nriman J. Has also given his dissent opinion in this case.

Issues Raised

1. The hearing of cases in which death sentence has been awarded should be by a Bench of at least three if not five Supreme Court Judges.

2. The hearing of Review Petitions in death sentence cases should be by circulation but should only be in open Court, and accordingly Order XL Rule 3 of the Supreme Court Rules, 1966 should be declared to be unconstitutional in as persons on death row are denied an oral hearing.

Arguments

Petitioner’s Argument

1. The award of death sentence cases are a distinct category of cases alogether. As per Section 134 of the Constitution allows an automatic right of appeal to the Supreme Court in all death sentence cases.

2. Further, it was said that under Section 354(3) of the Cr.P.C. recognizes the fact that in death sentence cases special reasons have to be recorded and case laws were presented to explain that it can only be granted in rarest of rare cases. Death Sentences are given priority of hearing over other matters by the Supreme Court.

3. The Counsel further went on to add that the award of death sentence at present depends upon the vagaries of the judicial minds as highlighted in several articles and bhagwati J.

4. The 187th Law Commission Report of 2003 has recommended that at least 5 Judges of the Supreme Court hear all the death cases. The Army, Air Force and Navy all require that the Court Martials involving deaths sentences should be heard by atleast 5 senior officers.

5. An alternative submission was made that even if death sentence cases are to be heard be Benches of three Hon’ble Judges, two additional Judges can be added at the review stage so that the review stage can be disposed off by the 5 learned judges in death sentence cases.

6. It was also argued that the Petitioner has undergone over 13 years in jail and now he could not be given the death penalty in addition.

Respondent’s Argument-

1. Shri Ranjit Kumar referred to Section 362 of the Cr.P.C. and said that ordinarily in all criminal matters no review is provided but he did not press to the contentions.

2. It was also contended that the Supreme Court is presently under severe stress because of its workload and cannot have review petitions which become re hearing of the same list to further damage an already severely strained judicial system.

Judgment

Court upheld the amendment in Order XL Rule 3 of the Supreme Court Rules, which amendment did away with oral hearing of review petitions in open court. This is also a judgment of the Constitution Bench and therefore, being a judgment of a coordinate bench is binding on this bench. While answering the argument through the constitutional bench accepted the importance of oral hearing,  generally it took the view that the court, when it comes to deciding a review application, decides something very miniscule, and the amended rule sufficiently meets the requirement of the principle of audi alterm partem. The court clarified that deciding a review petition by ‘circulation’ would only mean that there would not be hearing in Court but still there would be discussion at judicial conference and the judges would meet, deliberate and reach a collective conclusion. It has rightly emphasised that ruling need not be cited for this basic proposition but every judicial exercise need not be televised on the nation’s network. The right to be heard is of the essence but hearing does not mean more than fair opportunity to present one’s point on a dispute, followed by fair consideration thereof by fair minded judges. Presentation can be written or oral, depending on the justice of the situation. Where oral persuasiveness is necessary it is unfair to exclude it and, therefore, arbitrary too but where oral presentation is not that essential, its exclusion is not obnoxious. The Court, also noted that in many other jurisdiction, there was exclusion of public hearing in such cases. Further, the Court found justification in enacting such a rule having regard to mounting dockets and the mindless manner of filing review petition in most of the cases. The power to review is in Article 137 and it is equally wide in all proceedings. The rule merely canalise the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limit of the test. Here, ‘record’ interpretation depends on the demand of the context and the lexical limit of the test. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is wide for criminal as for civil proceedings.

 It is, thus, clear from the reading of the aforesaid judgment that the very rule of deciding review petitions by ‘circulation’, and without giving an oral hearing in the open Court, has already been upheld. In such a situation, can the petitioners still claim that when it comes to deciding the review petitions where the death sentence is pronounced, oral hearing should be given as a matter of right?

We may like to state at this stage itself that we are going to answer the above question in the affirmative as our verdict is that in review petitions arising out of those cases where the death penalty is awarded, it would be necessary to accord oral hearing in the open Court. We will demonstrate, at the appropriate stage, that this view of ours is not contrary to P.N. Eswara Iyer (supra), and in fact, there are ample observations in the said Constitution Bench judgment itself, giving enough space for justifying oral hearing in cases like the present.

By the Constitution 44th amendment Act, even the truncated right to property was completely deleted, and in the same year in Maneka Gandhi v. Union of India, (1978) 2 SCR 621, the Supreme Court held that the procedure established by law cannot be arbitrary but should be just, fair and reasonable. A six Judge Bench of the Supreme Court in A K Gopalan’s case construed Article 21 linguistically and textually. Kania J. Held that in USA’s Constitution the word “liberty” is used simpler while in India it is restricted to personal liberty and in USA the same protection is given to property, while in India the fundamental right in respect of property is contained in Article.

The stage was now set for the judgment in Maneka Gandhi. Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21.

In Sunil Batra v. Delhi Administration, while dealing with the question as to whether a person awaiting death sentence can be kept in solitary confinement, Krishna Iyer J. Said that tough our constitution did not have a ‘due process’ clause as in the American Constitution; the same consequences ensued after the decisions in the Bank Nationalisation’s case and Maneka Gandhi case.

Held

The Court has made it very clear that the law laid down in this judgment, the right of a limited oral hearing in review petition where death sentence is given, shall be applicable only in pending review petitions and such petition filed in future. It will be apply where a review petition is already dismissed but the death sentence is not executed so far. In such cases, the Petitioners can apply for the reopening of their review petition is dismissed, it would not be proper to reopen such matters.

Edited by Shuvneek Hayer
Quality check – Ankita Jha
Approved & Published – Sakshi Raje

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