state vs afzal guru

State vs Mohd. Afzal And Ors. (Parliament attack case)

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This case is also popularly known as the Parliament attack case. It is one of those cases which is remembered in history where the attack was planned and executed to cause damage to the state’s sovereignty. It was also one of the cases where the court’s decision was demanded by the public and so many critics questioned the judgement delivered by the apex court and also raised questions such as whether the decision of the court was a stain on India’s democracy. This case also involves the apex court’s take on the admissibility of electronic records and the Supreme Court’s discussion on the right of the accused. 

Citation:(2003) 71 DRJ 178 (DB): 2003 SCC  OnLine Del 935
Court:Hon’ble High Court of Delhi
Decided on:October 29, 2003
Petitioner:Mohd. Afzal, Shaukat Hussain Guru, S.A.R. Geelani and Navjot Sandhu 
Respondents:State of National Capital Territory of Delhi
Corum:Usha Mehra and Pradeep Nandrajog, JJ.

Facts of the case:

Five heavily armed men entered the Parliament on 13th December 2001 to storm up the Parliament complex when it was in session. They entered the Parliament with fake I-Card and in a car with a fake sticker pass of Home Minister on it. This attempt led to a gun battle between the then unidentified five persons and the security guards for 30 minutes. All five intruders were shot dead in the fire exchange between them and the security forces. This resulted in the death of 9 persons ( 8 security men and 1 gardener) and 16 people were injured. The suspicion was raised towards the Jaish-e-Mohammed, a terrorist organization banned under section 35 of the Unlawful Activities (Prevention) Act, 1967.  Four names which were Mohd. Afzal, Shaukat Hussain, S.A.R. Geelani and Afsan Guru (Navjot Sandhu) came up during the investigation which suggested that these four men were involved with the above-named terrorist organisation and were responsible for the attack on the Parliament. Under section 173 of CrPC, a report by the investigation agency was filed on the four accused. They were tried by the Special Court under various provisions of the Indian Penal Code 1860, the Prevention of Terrorism Act 2002 and the Explosive Substances Act.

What are the issues considered 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?”

What were the charges?

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.

The judgement of the Trial 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.

Judgement by 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:-

  1. It confirmed the death sentence of Mohd. Afzal and Shaukat Hussain Guru.
  2. The award of the death sentence was given under section 121 of the Indian Penal Code.
  3. 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:-

  1.  Two appeals by Shaukat Hussain Guru
  2. On appeal by Mohd. Afzal Guru
  3. Four appeals by State – National Capital Territory of Delhi against the acquittal of  Navjot Sandhu and S.A.R.Geelani.

What was the holding by the Delhi HC?

The Delhi HC gave the judgement on the basis on two major contentions which are:-

  1. Confessions of the co-accused
  2. Call records and there admissibility and authenticity

Confessions of the co-accused

The confessions of the Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Geelani were taken by DCP to record the confessional statements. They as per the record they confessed that there was a conspiracy. They were then taken for verification to the Magistrate for the same as per the provision of section 32 of the Prevention of Terrorist Activities Act which was led down in the case of Jameel Ahmed v State of Rajasthan which led down that “The voluntariness and reliability of confessions 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.” A general corroboration is a general rule unless the court is of view that such corroboration is not required. This corroboration should be done for material facts of the case concerned. The court in the present case took the view that the confession was of general nature and the Court cannot base the convictions of the accused on the basis of there confessions without general corroboration.

Call records and their admissibility and authenticity

The accused raised issues for the admissibility of the electronic records which were mobile phone calls records. The credibility of the phone call records was also raised as there was no certificate produced as per the section 65B(4) of the Indian Evidence Act which says that it is necessary to produce a certificate for the admissibility. Therefore in the absence of the certificate, the electronic records cannot be taken as competent evidence nor it can be taken as a piece of secondary evidence under section 63 of the Indian Evidence Act. The apex court said that the cross-examination of the witness known with the functioning of the computer in relevant time and manner when the print outs were taken in record is sufficient for its admission.

The doctrine of the ‘rarest of the rare’

“Afzal Guru was, in 2002, sentenced to death by the Trial Court and in 2003 Delhi High Court

upheld the death sentence. Later in 2005, the Apex court confirmed the death sentence. His sentence was confirmed by all the levels of judicial hierarchy. India strictly follows the ‘rarest of the rare

doctrine’ as laid down in Bachan Singh v. the State of Punjab.”

EndNote

  1. State v Afzal Guru  (2003) 71 DRJ 178 (DB): 2003 SCC  OnLine Del 935.
  2. Roy, A. (2013). The hanging of Afzal Guru is a stain on India’s democracy. The Guardian. [online] Available at:  https://www.theguardian.com/commentisfree/2013/feb/10/hanging-afzal-guru-india-democracy [Accessed 11 Feb. 2020].
  3. Jameel Ahmed v State of Rajasthan, 2003(9) SCC 673.
  1. Lamba, P. and Seth, A. (2013). The Curious Case of Hanging of Afzal Guru. The Journal of Law and Criminal Justice, [online] 1(1), pp.26-33. Available at: https://jlcjnet.com/journals/jlcj/Vol_1_No_1_December_2013/3.pdf [Accessed 14 Feb. 2020].

Gloria Hancy Purty

Gloria Hancy Purty

Author

Gloria is a crisp and fluent writer. She is a student of an esteemed Gujarat National Law University. Apart from her creative writing skills, she likes painting and has also made some engrossing paintings. For any clarifications, feedback, and advice, you can reach her at editor@lawcirca.com

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