MOHAMMAD IRFAN VERSUS STATE OF KARNATAKA

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURSIDICTION

CRIMINAL APPEAL NOS.201-202 OF 2018

MOHAMMAD IRFAN ..APPELLANT

VERSUS

STATE OF KARNATAKA ..RESPONDENT

WITH

CRIMINAL APPEAL NOS.203-204 OF 2018

AND

CRIMINAL APPEAL NOS.205-207 OF 2018

AND

CRIMINAL APPEAL NOS.208-209 OF 2018

J U D G M E N T

Uday Umesh Lalit, J.

1. Criminal Appeal Nos.201-202 of 2018 (arising out of SLP (Crl.) Nos.7347-

7348 of 2016); Criminal Appeal Nos.203-204 of 2018 (arising out of SLP (Crl)

Nos.8246-8247 of 2016); Criminal Appeal Nos.205-207 of 2018 (arising out of

SLP (Crl) Nos.8243-8245 of 2016) and Criminal Appeal Nos.208-209 of 2018

(arising out of SLP (Crl) No.138-139 of 2017) are filed by original Accused

Nos.5, 6, 1 and 4 respectively, against the common judgment and final order dated

10.05.2016 passed by the High Court1

in Criminal Appeal Nos.220 of 2012, 530

of 2012, 531 of 2012 and 1123 of 2013.

2. In the instant case, eight persons were arrayed as Accused in the

chargesheet but A-8 was shown to be absconding. A-1 to A-7, namely, Mohamed

Razhur Rehman @ Abdul Rehman, Afsar Pasha @ Basheeruddin, Mehboob

Ibrahim Sab Chopdar, Noorullah Khan @ Noorullah, Mohammad Irfan,

Nazmuddin @ Munna, Chand Basha and Ahmed Basha respectively, were tried in

Sessions Case No.539 of 2006 arising out of crime registered pursuant to FIR

No.3/2006. By its judgment dated 17.12.2011 the Trial Court2

acquitted A-7 but

found A-1 to A-6 guilty and passed order of sentence dated 19.12.2011, the

features of which can be tabulated as under: -

Indian Penal Code, 18603 Explosive

Substances Act,

19084

Arms Act, 19595 Unlawful Activities

(Prevention) Act,

19676

Section

120B

Section

121A

Section

121

Section

A-1 Life 7+1 Life 7+1

A-2 Life 7+1 Life 7+1 5+1 3

A-3 Life 7+1 Life 7+1 5+1 3

A-4 Life 7+1 Life 7+1 5+1 3

A-5 Life 7+1 Life 7+1

A-6 Life 7+1 Life 7+1 5+1 3

A-7 Acquitted of all the charges

1 The High Court of Judicature of Karnataka at Bangalore.

2 The Court of the City Fast Track (Sessions) Judge, Bangalore City (FTC II).

3 IPC, for short.

4 1908 Act, for short.

5 1959 Act, for short.

6 1967 Act, for short.

3. Following four appeals were thereafter filed in the High Court.

Criminal Appeal No. 220 of 2012 was filed by five Accused i.e. A-1, A-2,

A-4, A-5 and A-6. Criminal Appeal No.1123 of 2013 was preferred by A-3.

Criminal Appeal Nos.530-531 of 2012 were preferred by the State against

acquittal of the Accused including A-7 under certain provisions and also against

award of lesser sentence in respect of offences where the conviction was recorded.

4. Said four appeals were heard together by the High Court. By its judgment

and order presently under challenge, the High Court modified the conviction and

sentence of the Accused as under: -

IPC 1908 Act 1959 Act 1967 Act

Section

120B

Section

121A

Section

121

Section

Section 10 Section

A-1 Life

A-2 Life 7+1

A-3 7+1

A-4 Life 7+1

A-5 Life

A-6 Life 7+1 5+1 3

A-7 Order of acquittal passed by the Trial Court was affirmed.

5. Being aggrieved, the instant four appeals before this Court are by A-5, 6, 1

and 4. The State has not preferred any appeal either against the acquittal of A-7 in

respect of all charges or against the other Accused who were acquitted of some of

the charges. Further, no appeals have been preferred by A-2 and 3.

6. While investigating into Crime No.110 of 2005 relating to an incident of

shootout at Indian Institute of Science, Bangalore, PW-68 Sri V.S.D. Souza came

to know about a larger conspiracy concerning Lasker-e-Toiba (LeT), a banned

organization in India, which led to registration of FIR No.3 of 2006 on

14.01.2006. The allegations in said FIR No.3 of 2006 were as under:

“1. I was directed by the Commissioner of Police, Bangalore City vide

Memo No.CRM/4/186/2006 dated 29.12.2005 to investigate the case in

Cr.No.110/2005 registered in Sadashivanagar Police Station. I took up

further investigation of the case in Cr.No.110/2005 U/s 307 Indian

Penal Code, 18060 & 25, 27, 28 of Arms Act & 4 & 5 of Explosive

Substance Act, 1908 of Sadashivanagar Police Station, Bangalore City

from T. Ajjappa, ACP, Seshadripuram Sub-Division, Bangalore on

31.12.2005.

2. As per my instructions on 02.01.2006 at 6.30 am Sri Subbanna,

Police Inspector and his team produced the Accused Mohammed Razur

Rehman @ Abdul Rehaman @ Umesh S/o Samsuddin, aged 35 years,

R/o No.5-10-82, BTS, Naigonda, Andhra Pradesh, before me along with

his report seizer mehazar, a pocket diary containing telephone numbers

which were seized during the course of investigation of the above case.

3. While investigation, the above case I have come to be aware of the

following credible information. That Lasker-e-Toiba (LeT) which is

banned organisation in India is active and trying to spread its terrorist

activities in India and elsewhere.

4. The main aim of LeT is to destabilize India by way of terrorist

activities like attacking vital sensitive installations, assassinating

important public personalities, causing bomb explosions in public

places and carrying shootouts, disrupting *****7

peace and tranquillity,

causing communal disharmony *****7

economic interests thereby

disturbing public order etc.

7 ***** - Illegible.

5. Abu Mohamed @ Mohamed Irshad is the chief of LeT in Saudi

Arabia. Abu Mohamed is a Pakistani national. Abu-Abdulla, Abdul

Manner and Zakria all Pakistani nationals used to assist Abu

Mohammed @ Mohammed Irshad in LeT activities.

6. Abdul Rehman, a native of Nalgonda, Andhra Pradesh, a dropout in

Diploma, ventured into different professions, but failed. In 1993 he

procured passport at Hyderabad and in 1994 his brother Habeer-UrRehman helped him in getting a Saudi Visa and Abdul Rehman went to

Saudi Arabia and worked as driver, as a salesman in a vegetable shop,

in laundry, driver of water supply van and at present he is working as

sales representative at Onaiza Under a cosmetics dealer.

7. He came in contact with Sheik Mehboob Ahamed Moulana an LeT

leader in a Sanaga Masjid.

8. Sheikh Mehboob motivated Abdul Rehman to join LeT in 1998.

The said Abdul Rehman started attending to its religious activities of

LeT an started regularly attending to its religious activities conducted

by LeT which were basically motivating people for Jehadi activities.

Abu-Hanza, Abu-Ummer, Abu-Nidal, Abu-Bukka, Abdul Rehman

Makki, Hafizullah who are senior LeT leaders used to take active

participation and were motivating the people for Jehadi activities by

their provocative speeches during 1999. Abu Rehman got married and

returned to Saudi Arabia.

9. In 2000 Afsar of Bangalore and Mehboob Ibraim of Bagalkot

District during one of its seminar in Islamic Centre of Onaiza (Saudi

Arabia) came in contact with Abdul Rehman and they became friends

and prominent persons in the cadre of LeT.

10. Under the patronage of Abdul Rehman, Afsar Pasha of Bangalore

wanted to go to Pakistan for training in explosives and arms for Jehadi

and terrorist activities. However, the plan did not materialize.

11. In the year, 2001, Faisal, Abu Haza, Sherif, Altaf, Anwar, Zakaria,

Abdul Rehman and others who are all Indian nationals and working in

Saudi Arabia decided to collect funds and revenue for Jehadi activities

in India.

12. Vali-Ur-|Rehman, resident of Bangladesh, who is chief of Jamat-ulMudauddin (JMU in Bangladesh) arranged the visit of Afsar Pasha to

Bangladesh.

13. Afsar Pasha of Bangalore, went to Bangladesh in the early of 2002

where he stayed there for 8 months and also underwent training in

handling weapons and explosives and manufacture of bombs, etc. Later

he entered India illegally via West Bengal. Abdul Rehman during this

period had sent money to Afsar Pasha towards the purchase of weapons

and training expenses.

14. In the year 2002. Irfan Umri of Chennai was made Masood of AlGhasi and Abdul Rehman as his deputy. Both of them have conducted

various religious programme to attract Muslims to the cadre of LeT.

15. During 2003, Zakaria returned back to India and he was arrested by

Tamil Nadu Police for conspiracy of carrying out sabotage activities in

Chennai. Later Abdul Rehman was made Masood in place of Irfan

Umri in Saudi Arabia.

16. Abdul Rehman was visiting Nalagonda, Andhra Pradesh, frequently

on the pretext of spending holidays, but was contacting Mehboob

Ibrahim and Afsar Pasha and discussing about carrying out Jehadi and

terrorist activities in Karnataka. Abdul Rehman appointed Mehboob

Ibrahim of Bagalkot District for carrying out terrorist activities in

Northern Karnataka and Afsar Pasha of Bangalore for Southern

Karnataka.

17. During such visits in November 2003, Abdul Rehman visited

Chintamani and met his associate Afsar Pasha and decided about setting

up a Mosque of Ahle-Hadis at Chintakani and also promised for

financial assets ****. Afsar Pasha and Afbdul Rehman also decided to

****** of LeT in Karnataka by recruiting youth from their community.

Afsar Pasha introduced Noor, Irfan, Munna and others Abdul Rehman,

Abdul Rehman as a chief of LeT South India. ***** all of them to

engage themselves in Jehadi and terrorist activities.

18. Abdul Rehman went to Chennai and met Irfan and decided to set up

a trust “Al-Fetah” for LeT activities and promised funds for the same.

19. During 2004, Abdul Rehman sent money to Afsar Pasha of

Bangalore and Mehboob Ibrahim of Bagalkot through hawala

transaction through one Chand Pasha of Bangalore.

20. The said Afsar Pasha of Bangalore and Mehboob Ibrahim of

Bagalkot District were in constant touch with Abdul Rehman who was

based in Saudi Arabia and vice-versa and further was reporting to him

about the progress of the LeT activities.

21. Abdul Rehman instructed Afsar Pasha and Mehboob Ibrahim to

undertake Jehadi and terrorists activities through sabotage in Karnataka.

Abdul Rehman came to Nalagonda during October 2005 and instructed

Afsar Pasha and Ibrahim to cause blast and damage to vital

installations, Multi-national companies, etc. in Bangalore and other

places of Karnataka.

22. Between 2003 to 2005 December, Abdul Rehman has recruited

Afsar Pasha of Bangalore and Mehboob Ibrahim of Bagalkot into LeT

cadre. Afsar Pasha was made incharge of LeT to look after South

Karnataka and Ibrahim of Bagalkot District was made incharge of LeT

to look after North Karnataka for causing sabotage activities. Afsar

Pasha has recruited 4-5 persons, trained them in LeT activities and also

taught them about the concept of Jehad, (so called holy war against

non-muslims). For this purpose during 2nd and 3rd week of December,

2005 they held secret conspiracy meeting in Tamil Sangam, Cubbon

Park and Afsar Pasha’s house in Bangalore and other places in

Karnataka and decided to cause bomb blasts in Bangalore. For this

purpose they procured explosive materials, bomb, etc. and prepared

themselves to use them to terrorize the citizen and create fear psyenosis

in the State by their terrorist activities.

23. In view of the above facts, it is evident that the above Accused

persons viz. (1) Mohamed Razhur Rehman @ Abdul Rehman (2) Afsar

Pasha of Bangalore (3) Ibrahim of Bagalkot District (4) Noor (5) Irfan

(6) Munna and others of Karnataka who are the active members of

banned militant organization LeT entered into a criminal conspiracy to

cause large scale destruction of public property, multi-national

companies etc. by causing bomb explosions, attacks on innocent people,

large scale destruction of places of worships and promote enmity

between different groups on the grounds of religion, race and

perpetrated acts, prejudicial to the maintenance of communal harmony

besides causing disaffection with overall object of attempt to being

hatred, contempt and incite disaffection towards the Government by law

established by desertion of places of worship, knowingly that such acts

will result in breakdown of public order and the Accused have reported

to have acquired and collected explosive substances and other necessary

arms and ammunitions and conspired to wage war against the Union

Government of India.

24. The information received by me constitutes cognizable offence U/s

120(b), 121, 121(A),1 122, 124(A), 153(a) and (b) of Indian Penal

Code, 1860 and Section 5 and 6 of Explosive Substance Act, 1908 and

Sections 25, 26 and 28 of Arms Act, 1959 and Sections 10, 11, 13, 16,

18, 19, 20 and 23 of Unlawful Activities Prevention Act, 1967.”

7. The investigation into the crime was conducted by the team headed by

PW72 (Pradeep Singh, Asstt. Commissioner of Police) and the salient features of

the matter including the steps undertaken during investigation can be tabulated as

follows:

Sl.No. Date and

Time

Facts

1 28.12.2005 An incident of shoot-out occurred at the JN Tata

Auditorium of Indian Institute of Science, Bangalore

which led to registration of Crime No.110/2005 u/s.

307 IPC with Sadashivnagar Police Station,

Bangalore. On receipt of information that

Mohammed Rezhur Rehman @ Abdul Rehman (A1)

who was suspected to be involved in said crime was

in Nalgonda, (PW50) Police Inspector Subanna was

instructed to arrest said A1.

2 01.01.2006

5:30am to

6:00am

PW50 and his team arrested A1 in front of a Masjid

in Nalgonda. PW50 immediately conducted a body

search on A1 and recovered a Pocket Notebook

(MO1). Panchnama at Ex. P32 was drawn with

PW14 (Surya Prakash) as the pancha witness.

3 02.01.2006 A1 was produced before PW68 (V.S. D'souza, the

IO in Crime No. 110/2005) and a voluntary

statement of A1 was recorded. The statement

indicated a conspiracy to carry out terrorist attacks

in India.

4 05.01.2006 Based on said voluntary statement of A1, PW68,

went to Nalgonda. A Mobile (MO10), one passport

(Ex. P40), six slips (Ex.P41-46), and three passport

size photos (Ex. P47-49) were recovered from A1’s

bedroom. Panchnama at Ex. P39 was drawn with

PW18 (S. Mothilal) and PW57 (R. Vijay Pal) as the

pancha witnesses.

5 14.01.2006

3:30pm

PW68 filed a complaint in relation to the conspiracy

to carry out terrorist attacks. Resultantly, FIR being

Crime No.3/2006 was registered u/s. 120B, 121,

122, 124A, 153A and 153B of the IPC; s. 5 and 6 of

the 1908 Act; s.25, 26 and 28 of the 1959 Act and s.

10, 11, 13, 16, 18, 19, 20 and 23 of the 1967 Act.

6 14.01.2006 PW35 (Chalapathy) arrested Mehaboob Ibrahim Sab

Chopdar (A3) from Guledagudda.

7 15.01.2006 Based on the voluntary statement of A3 (Ex.P-272),

a pocket telephone diary, 3 telephone chits, 10

gelatin sticks and 02 detonators were recovered

under a mahzar Ex.P-50.

In the presence of Panchas, A3 also took out 4 books

(Ex.P-64 to Ex.P-67).

8 19.01.2006 Afsar Pasha @ Basheeruddin (A2) and Mohammad

Irfan (A5) were arrested by PW41 (Srinivas Murthy)

and PW52 (A.G. Kaisar) near Punganur.

PW52 immediately conducted a body search and

found (i) a mobile (MO17), two currency notes of

Rs.50/- (MO18), motorbike (MO19), diary (Ex.

P13), Driving Licence (Ex. P131), STD slip (Ex.

P132), visiting card (Ex. P133), and one estimation

letter (Ex. P134) from A2; and (ii) one mobile

(MO20), and one diary (Ex. P135) from A5.

Panchnama at Ex. P129 was drawn with PW30

(K.M. Vijaya Kumar) and PW35 as the pancha

witnesses.

A2 and A5 were produced before PW72 at 8:30am.

Based on the voluntary statement of A2, 17

detonators, 20 gelatin sticks, 114 iron pellets, 3 hand

granades were recovered pursuant to Panchanama

Ex.P-138.

9 20.01.2006 Based on the voluntary statement given by A5,

recovery of two Urdu books (Ex. P76-77) and two

letterheads (Ex. P78-79) was made.

Panchanama at Ex. P75 was drawn with PW22

(Shakthi) and PW24 (Prakash) as the pancha

witnesses.

10 22.01.2006

8:30pm

Pursuant to voluntary statement of A2, certain books

and pamphlets (Ex.P-81 to Ex.P-92) and six video

cassettes (MO-15) and other articles being Ex.P-93

to Ex.P-104 were seized vide panchanama Ex.P105.

Norrullah Khan @ Noorullah (A4) and Nazmuddin

@ Munna (A6) were arrested by PW54 (Babu

Narohna) and PW61 (Venkataswamy) at

Hesaraghatta Bus Stop.

Upon body search, PW54 found (i) a notebook (Ex.

P113), one chit (Ex. P114), visiting cards (Ex.

P115), a leather purse (Ex. P116) from A4; and (ii)

one small diary (Ex. P116) from A6.

Panchnama at Ex. P112 was drawn with PW32

(Ejaz) as the pancha witness.

11 23.01.2006 Voluntary statements of A4 and A6 were recorded

by PW72, at Ex. P276-277.

12 24.01.2006 Based on their voluntary statements, A4 and A6 led

PW72 along with a team and pancha witnesses to

Neelagiri Plantation and Central Poultry Farm

resulting in recovery of (i) a tin-type bomb, two

wires and two capes at the instance of A4; and (ii) a

tiffin-carrier bomb, a tin-type bomb, a fuse wire,

two electric detonators, a revolver (MO23) and five

cartidges (MO24-25) at the instance of A6.

Panchnamas at Ex. P169-170 was drawn with PW40

(G.S. Ravikumar) and PW45 (H.K. Paramesh) as the

pancha witness.

13 28.01.2006 Chand Pasha (A7) was arrested.

14 30.01.2006 PW72 made more recoveries at the instance of A4

and A6, i.e. some books (Ex. P155-156), one Urdu

book (Ex. P167) and some documents (Ex. P157-

165).

Panchnamas at Ex. P134 and Ex. P152 were drawn

with PW39 (S. Rajendra) as the pancha witness.

15 12.04.2006 IO submitted the charge sheet in the instant case i.e.

crime pursuant to FIR No.3/2006.

16 14.02.2007 A supplementary charge sheet was submitted.

8. During trial, the Prosecution examined 73 witnesses and relied upon 278

exhibits and 38 material objects in support of its case. Exhibits D1 to D7 were

also marked at the instance of the Accused in the cross examination of the

Prosecution witnesses. The evidence led by the Prosecution could be categorised

under three segments as noted by the High Court8

“(1) The recovery of incriminating articles at the instance of the

accused persons;

(2) Connectivity of those articles to the conspiracy between the

accused persons;

(3) The conduct of the accused persons with reference to such

conspiracy to constitute the offence alleged against them.”

9. In the first segment, the important recoveries from the Accused, which

were relied upon by the Prosecution, were as under:

(a) From A-1: A pocket notebook, some paper chits containing phone numbers,

passport and passport sized photos.

(b) From A-2: 17 Detonators, 20 Gelatine sticks, 114 Iron pallets, 3 Hand

grenades, certain inflammatory literature, minutes of meeting of a trust created

under the tutelage of A-1 (Ex.P.92) and some video cassettes.

Gelatine sticks, 2 Detonators and inflammatory literature.

(d) From A-4: Tin type bomb in a box, wires and tapes; documents and books.

8 Paragraph 44 of the judgment under appeal

(e) From A-5: Letterheads and inflammatory literature.

(f) From A-6: Tin type bomb in a box, wires and tapes; Revolver and live

ammunition.

(g) From A-7: Mobile phone, slip with phone number, visiting card, diary and

a note book.

10. Certain explosive substances, arms and ammunition which were recovered

pursuant to statements made by A-2, A-3, A-4 and A-6 as dealt with at serial

numbers 7, 8 and 12 of the chart in paragraph 7 hereinabove, were also relied

upon.

11. The Prosecution examined PWs 1 to 8 and 13, who according to the

Prosecution, were sought to be drawn and indoctrinated into the design and

scheme of the Accused. All these witnesses did not support the Prosecution and

were declared hostile. However, according to the Prosecution, their testimonies

could still be relied upon to establish the fact that all the Accused were working

together with a sense of purpose and had been in touch with the witnesses. By

way of example, the following portions from the depositions of PWs 1 and 4 may

be noted:-

(A) PW-1 (Javeel Raza)

“I am acquainted with, Accused-2, Afzal Pasha and Accused-6

Nazamuddin. Both of them are present in this court on this day.

Witness identified the Accused-2 and 6 who are sitting at the 4th

and 6th position respectively.

One day when I was there in my shop along with Parveed, 4 years

ago, Accused-2 and 6 came to my shop and said that they have

come from Kolar, presuming that they might be friends of my

friend Mukthiyar who lives Kolar, I called Mukthiyar over phone.

The said Mukthiyar is originally from Kolar and was residing in

Bangalore. I had called his Bangalore number. Mukthiyar came to

my shop. Accused-2 and 6 told us about Islam religion, told us to

do Namaz and told us to help the poor people. Told us to establish

one Madarasa. We offered both of them cup of tea and sent them

off.

After six-seven days, both of them came to my shop once again.

Me, Parveez, Mukthiyar and Zaheed were there in the shop. They

told us, we will not talk in shop, lets go to park and talk. All four

of us went to park along with them. Both of them told about

Quran and said that, we have to establish an organisation of people,

and told us that it is not possible for the people to go to the

mosques or Dargah and pray, hence they are to be demolished. For

this work, 15-20 persons are to be organised and the expenses for

the same shall be borne by the same organisation. As the matters

that they were saying were not appropriate, I told them that I am

getting a phone call and I returned to the shop. Behind me, my

friends also came back. Accused-2 and 6 went back from the park

only. All four of us had talk amongst ourselves, and we decided

that the conduct of Accused-2 and 6 are not good, if they come

back again, we will not entertain them. After few days, Javid had

received a call from the said persons, Javid informed that he has

told them not to come and we will not be available.

After the witness was declared hostile, he was cross examined by the

Special Public Prosecutor, when the witness stated:-

It is correct if stated that, in my statement I had stated that the

accused persons had informed me that Madarasas are to be opened,

Muslims are to be trained, for that finance needs to be arranged. It

is not correct if stated that, I had stated that Jihad to be declared

against the killings of Muslims by Hindus in Gujarat. The said

statement was flagged as EP-1. It is correct if stated that, they had

told me that, people are to be stopped from going to Dargahs and

we should make Dargahs non-existent. It is not correct if stated

that, by making Dargahs impure, communal harmony to be

disturbed and law and order situation should be created and

government should be weakened, they had informed. The said

statement was flagged as EP-2. It is not correct if stated that, the

accused Afzal Pasha was trained in Dhaka regarding Jihad and

acquainted with the Chief of Lashkar-e-Toiba of Saudi Arabia, Abu

Hamja, Wali Ur Rahman and Abdul Rahman of Nelagonda, that he

needs to establish Lashkar-e-Toiba in Karnataka secretly, and had

stated that, you all have to co-operate. The said statement was

flagged as EP-3.

Accordingly, it is not correct if stated that, I had stated while we

were sitting in the park, the said accused said that, we will all

together, we will organise LeT in Bangalore, Hindus are killing

Muslims in Kashmir and at all parts of India, we will declare Jihad

as said in Quran, we will destroy India through revolution, we will

collect money for LeT, we will bring the interested persons for

training, all the expenses will be borne by Abdul Rahman, I will

also train the joining persons temporarily. The said portion of the

statement was flagged as EP-4.”

PW-4 (Firoz @ Firoz Pasha)

Accused-6, Munna was introduced to me by Chintamani watch

shop, Abdul Rahman. The said Munna is present in the court today

and he was identified. I used to go to tea stall to read news paper.

Then, I got acquainted with the Accused-4, Noorulla. He is also

sitting in the Court today. When I went to Mulabagilu for Islam

religious canvassing, I got acquainted with Accused – 5, Irfan. He

is sitting in the court today and the witness have identified him. I

know the Accused-2, he is also present in the court today.

… …In Chintamani there are two Masjids, in those Masjids when

we went for Namaz, the management there threw us out saying

that, there is a different custom in those Masjids. Therefore, we

took a room and we used to Namaz there only. We made a trust

and had purchased land for the trust. Abdul Rehman was the

Chairman for that trust, 2nd Accused Afzal Pasha was the ViceChairman, Accused-6 Munna was the Secretary for that trust,

Accused-4 Noorulla was the Joint Secretary, I was treasurer for the

trust. Accused Abdul Pasha had a fracture of bone of hand, then

Accused-1 Razu Rahman came to see him, then Abdul Pasha

introduced him to me that he was his friend in Saudi.

Abdul Rehman had organised a tea party in our house, one day.

On that day, Accused-1 Rahman told us that we all should be

united and should be co-operative with our neighbours. … …

….. Evening at 7 pm he left after the Namaz. After that, I

had dropped Abdul Rahman to the Bangarpet Railway Station on

my Bike.”

After the witness was declared hostile, in response to the

questions put by the Special Public Prosecutor, the witness stated:-

“It is not correct if stated that, in the statement that I had given to

the police, I had stated that, the Accused Afzal Pasha is the major

man in Lashkar-e-Toiba, he speaks about Jihad, he had informed

me that we will conduct a meeting at 5 PM in our house and as per

his request when we gathered in my home, after introducing that

Afzal Pasha is the commander of Lashkar-e-Toiba of South India,

after that Abdul Rahman spoke and said that, the country of India

should be made into pieces, we will conduct a training about Jihad,

I will supply the gun, bomb and other required items, you all

organise yourselves declare Jihad and said that demolish Dargahs

create communal clashes and create instability of government.

Listening to all this matter, we said it is not possible to do all that

here, we did not cooperate. Me, Jameer and Ameer came back

from the meeting without signing, and I had stated that, we were

present at the meeting, Munna, Noorulla Khan and Abdul Pasha

signed. The said statement was flagged as EP-11.”

The witness was recalled and cross examined further by the Special Public

Prosecutor when the witness stated:-

“The trust that we have registered is Masjid O Mohammed Ya Ahle

Adees Trust. It is correct that the PW-5 Jameer, PW-6 Ameer and

CW-11 Miyammed were also the members of the trust. When the

assused-1 came to my house, Afzal Pasha, Noorulla Khan, Munna,

Jameer and Ameer had come there. I did not question that, why he

is saying like that, when the Accused-1 told us that we all should

be united. Afzal Pasha is my childhood friend.

I do not know about, the accused-1 is the South India

Commander of Lashkar-e-Toiba and has come to preach us. On

that day, the accused-1 was there at my home for about one and

half hour, he had only told that we all should be united. It is false

if stated that, Abdul Rahman in his speech told that, in India

atrocity is happening on Muslims, we all should declare Jihad

unitedly, I will provide necessary training and required weapons

and all. It is not correct if stated that, Abdul Rahman had said like

this, we did not agree to this. Abdul Rahman was staying in

Woodland Hotel. Afzal Pasha is my relative.”

12. The Trust referred to in the deposition of PW4 was constituted pursuant to

execution of Trust Deed (Ex-P27) on 10.12.2003, in terms of which the Trustees

were:-

“(i) Abdul Rehaman s/o Watch Maker Mohan Road;

(ii) Afsar Pasha s/o Noor Ahmed;

(iii) Nijamuddin s/o Tajuddin;

(iv) Noorulla s/o Mehaboob Khan;

(v) C.M. Firroz Pasha;

(vi) Ammer Khan s/o Carpenter Vali Khan;

(vii) Roshan Zameer s/o Syed Noorullah;

(viii) Syed Nayamat s/o Syed Amanulla; and

(ix) Tajuddin s/o late Abdul Razak”

Thus, Accused Nos. 2, 4 and 6 as well as PWs 4, 5, 6, 7 and 8 were

Trustees of said Trust.

13. It is accepted that Ex. P-92 is the Minute Book of said Ex. P-27 Trust.

Apart from the recovered arms and ammunition and explosive materials, minutes

of meetings as recorded in Ex.P.92 recovered from A-2 are of some significance.

The contents of Ex. P.92 show that the meetings were attended by some of the

accused who signed the minutes. The details in that behalf were captured in

Paragraph 70 of the judgment of the Trial Court, which Paragraph, for facility is

extracted hereunder: -

“70. I have perused Ex.P92 and the relevant page of the first meeting

is marked as Ex.P92 (c) and (d). The said meeting was held on

10.12.2003 in the house of Fairoz at Chintamani, which was attended

by Accused Nos.1, 2, 4 and 6 along with some other members. As per

its recitals, it goes to show that the Jihad meeting was held at 5:00

P.M. and in the said meeting Accused No.1 was introduced to all

others. Further, it goes to show that Accused No.1 addressed the

meeting saying that in India muslims are treated badly, Babri Masjid is

demolished, muslims were killed in Gujarat and we all should be

prepared to fight against it. Further, it goes to show that Accused No.1

assured that he will supply guns, bombs and also financial assistance,

etc., for preparation of Jihad training. Further, it goes to show that the

members who attended the meeting, namely Fairoz, Zameer and

Ameer, dissented with the Accused No.1 because if they do so, it will

cause harm to the muslims and by saying so they walked out from the

meeting. The said meeting also discloses that other members agreed

with the Accused No.1 and meeting was concluded at 8:00 P.M.

Ex.P92(d) goes to show that Accused Nos.1, 2, 4 and 6 have signed

the minutes book. At Ex.P92 (d) after the signatures of Accused No.2,

there is a gap and it appears that something has been erased. The

learned Special Public Prosecutor has argued that one member who

attended the meeting might signed after Accused No.2, but as he came

to know about the consequences, he might have erased his signature.

He further argued that the persons who attended the meeting being

descended with the decision of the accused the I.O. has cited them as

witnesses. I find considerable force in his arguments as because

Ex.P92 (c) and (d) goes to show that the witnesses, namely Fairoz,

Zameer and Ameer, dissented with the views of Accused No.1. Ex.P92

(f) goes to show that second meeting was held in the house of Accused

No.6 from 19.08.2006 and it was attended by Accused Nos.2, 4, 5 and

6. Ex.P92 (f) goes to show that in the said meeting a society was

formed in the name of Jamath-ul-Mujahiddin and it was agreed in the

meeting to cooperate the Jidhad training. Ex.P92(a) and (h) goes to

show that third meeting was held on 18.12.2005 in the house of

Accused No.2 at Lakkasandra, Bangalore, and Accused Nos.2, 4, and

6 attended the same. Ex.P92(g) and (h) also goes to show that Accused

No.5 addressed the meeting by saying that Islam was sent in the hands

of Paigambar to be superior to the other religion and Jihad has to be

declared if anybody causes damage to Islam. Ex.P92 (g) and (h) also

goes to show that Accused No.4 has addressed the meeting by saying

the Jihad has to be started by offering lunch (Davath) and if anybody

opposed Jihad has to be declared at any time. Ex.P92 (g) and (h) also

goes to show that the Accused No.2 has addressed the meeting saying

that Jihad has to be declared in the name of God, in case killed he will

be ‘Shahid’ and in case of survival he would become ‘Bahaddur’.

Further, it goes to show that Accused No.2 addressed to the effect that

Kuwath means ‘power’ and by referring the handwritings of the book

given by Tariq Sahni of Bangladesh he told that the power is in

bombs, bandook and AK-47. Ex.P92 (g) and (h) also goes to show that

Accused No.2 instructed to the Accused No.4 and Accused No.6 to

identify the Dargah and other important places, for that they agreed.

Ex.P92 (g) and (h) also goes to show that next meeting was fixed on

31.12.2005 and the third meeting was concluded at 8:00 P.M. The

advocate for the accused argued that there are overwriting at Ex.P92.

It is true that at some places we can see the overwriting. At Ex.P92 (c)

at the top in date there is overwriting of day, but not about the month

and year. Similarly, at Ex.P92 (g) also there is a overwriting of date.

But, at the end of third meeting date of next meeting has been

specifically mentioned without there being any overwriting. Similarly,

in the recitals also some words are striked out, but it will take away

the meaning of the sentence. Therefore, I am of the opinion that the

overwritings are natural.”

14. PW25 – Anil Kumar Dubey, an independent panch witness, stated inter alia

about the recovery of Diary Exh.P-92. He deposed that on 22.01.2006 he had

accompanied the police and A-2; that when they reached the house of A-2 the door

was opened by his wife; that A-2 took the police to a room and opened a suitcase

which was lying below the cot in the bedroom using the key that was with him,

whereafter, articles Exh.P-81, P-92, six video cassettes (M-15) and other articles

Exh.P-93 to P-104 were seized vide Panchnama Exh.P-105. The witness stated

that after the seizure was done in his presence, Panchnama, Exh.P-105 was drawn

and signed by him. He also stated that the police had called a Moulvi from a

Masjid in the neighbourhood, who read the names and some of the contents of the

written material and books. The cross-examination of the witness did not draw

anything substantial to dispel the credibility of the assertions made in the

examination-in-chief.

PW29 Shahnawaz Ahmed deposed that he was called by the police to

translate the Urdu books and other material but denied that Panchnama was drawn

in his presence. According to the witness, his signatures at four places on

Panchnama Exh.P-105 were taken later and the contents of said Panchnama Exh.

P-105 were not read out to him. The witness was declared hostile and was cross

examined by the prosecution in which he accepted that he had never signed any

document without knowing the contents thereof.

15. Exh. P-92, among other documents, was made over to PW-67, Syed Asgar

Imam, Hand Writing Expert, along with sample signatures of the Accused.

According to this witness, signatures on the sheets of Exh. P-92 were marked as

Q39 to Q44 and when said Expert compared the sample signatures of the Accused

with Q39 to Q44, the result showed:-

(a) Q39 and Q40 matched with the sample signature of A-2.

(b)Q41 matched with the sample signature of A-5.

(d)Q43 matched with the sample signature of A-4.

(e) Q44 matched with the sample signature of A-1.

The relevant portion from the testimony of PW-67, Syed Asgar Imam was

as under:-

“Since 1981, I am working as handwriting and document experts in FSL,

Bengaluru. I am science graduate and I have also got special diploma

course in handwriting and document examination, from institute of

criminology and Forensic Science, Ministry of Home Affairs, Government

of India, New Delhi.

In my tenure I have examined number of questioned documents and

I have given my opinion.

On 14/3/2006, I have received following documents from A.C.P.

Yeshawanthapura Sub-Divn. Bengaluru City, for my examination and my

opinion in Cr. No.3/06 of Sadashivnagar P.S.

1. One small pocket diary containing questioned writings, marked as

Q1 to Q24 by the I.O. Now I see that said pocket diary already

marked as Ex.P.54. It bears my signature.

2. Three loose chits containing questioned writing, marked as Q25 to

Q30 by the I.O. Now I see the said three chits, already marked as

Ex.P.51 to 53. It bears my signature.

3. One small pocket note book (New) containing questioned writing marked

as Q31 to Q38 by the I.O. Now I see the said one small pocket

notebook already marked as Ex.P130. It bears my signature.

4. One 2003-diary containing questioned writing and signature in six

sheets marked as [Q39 to Q44] by the I.O. Now I see the said one

2003 diary already marked as Ex.P.92. Its relevant sheets of

questioned writing is now marked as Ex.P.92 (c) to (h). it bears my

signature.

5. One small telephone pocket diary (new) Q45 to Q50 by the I.O. Now

I see the said one telephone pocket diary already marked as

Ex.P.135. It bears my signature.

6. One small pocket book containing questioned writing marked as Q51

to Q55 by the I.O. Now I see the same already marked as Ex.P. 113.

It bears my signature.

7. One loose page of a note book containing questioned writing,

marked as Q56, Q57 by the I.O. Now I see the same already marked

as Ex.P.114. It bears my signature.

8. One small pocket note book containing questioned writing marked as

Q58 to Q60 by the I.O. Now I see the same already marked as

Ex.P.116. It bears my signature.

9. One small pocket book containing questioned writing marked as Q61

to Q79 by the I.O. Now I see the same already marked as Ex.P.148.

It bears my signature.

10. Eight chits containing questioned writing marked as Q80 to Q91 by

the I.O. Now I see the same already already marked as Ex.P.149,

150, 151, 138, 141, 139, 140 and 142. It bears my signature.

11. Specimen writing said to be of Mehboob Ibrahim on six sheets,

marked as EW1, EW2, SW1 to SW4 by the I.O. Now I see the same

already marked as Ex.P.190 to Ex.P.195. It bears my signature.

12. Specimen writing and signature to be of Afsar Pasha on ten sheets,

marked as EW3, EW4, SW5 and SW8, S1 and S4 by the I.O. Now I

see the same already marked as Ex.P. 196 to 205. It bears my

signature.

13. Specimen writing and signature said to be of Mohammed Irfan on

six sheets marked as EW5, EW6, SW9, SW10, S5 and S6 by the I.O.

Now I see the same already marked as Ex.P.206 to Ex.P.211. It bears

my signature.

14. Specimen writing and signature said to be of Noorull Khan on four

sheets marked as EW7, EW8, S7, S8 by the I.O. Now I see the same

already marked as Ex.P.181 to 184. It bears my signature.

15. Specimen writing and signature said to be Najmuddin on four sheets,

marked as of Najmuddin on four sheets, marked as EW9, EW10, S9

and S10 by the I.O. Now I see the same already marked as Ex.P.185

to 188. It bears my signature.

16. Specimen writing and signature said to be of Chandpasha on six

sheets marked as EW11, EW12, SW11 and SW12, S11 and S12 by

the I.O. Now I see the same marked as Ex.P.227 to Ex.P.232. It

bears my signature.

17. Specimen signature said to be of Mohammd Razhur Rehman on two

sheets, marked as S13 and S14 by the I.O. Now I see the same

marked as Ex.P.223 and Ex.P.234. It bears my signature.

After thorough and scientific examination of the above question and

specimen writings and signatures I came to the following opinion:-

1. The specimen writing marked as EW1, EW2, SW1 to SW4 and

questioned writings marked as Q2, Q3, Q4 are written by one and

the same person.

2. The specimen writings marked as SW7, SW8, EW3, EW4, S1, S2

and questioned writing marked as Q31 to Q40 Re-examination

written by one and the same person.

3. The specimen writings and signatures marked as EW5, EW6, SW9,

SW10 and S5, S6 and questioned writings and signatures marked as

Q47 to Q50 and Q41 are written by one and the same person.

4. The specimen writings and signatures marked as EW7, EW8, S7 and

S8 and questioned writings and signatures marked as Q53, Q54 and

Q43 are written by one and same person.

5. The specimen writings and signature marked as EW9, EW10 and S9

and S10 and questioned writings and signature marked as Q56 to

Q60 and Q42 are written by one and the same person.

6. The specimen writings marked as EW11, EW12, SW11, SW12 and

questioned writings marked as Q86 are written by one and the same

person.

7. The specimen signatures marked as S13, S14 and questioned

signature marked as Q44 are written by one and the same person.

8. It has not been possible to express the opinion questioned writings

marked as Q1, Q5 to Q30, Q45, Q46, Q51, Q52, Q55, Q61 to Q85,

Q87 to Q91 on the basis of specimen writings on hand.

Accordingly, I have issued the certificate in this regard now. I see

the same marked as Ex.P.235 and my signatures are marked as Ex.P.235(a)

to (c). The said certificate is counter signed by the Assistant Director, FSL

and forwarded to the I.O. by the director.”

Nothing substantial came out in the cross-examination conducted on behalf

of the Accused with respect to Exh. P-92. The signatures of A-1, A-2, A-4, A-5

and A-6 on some of the minutes, according to the Prosecution, were thus proved

beyond any doubt.

16. The recovery of books and literature recovered from the Accused, which

according to the Prosecution was inflammatory material, may now be dealt with:-

(A) On 22.01.2016, A-2 took PW72 to his house leading to the recovery of

certain literature and books which according to the Prosecution were

inflammatory. The literature comprised of a book named as ‘Taqbeer’ (Exh.P-81),

a book called ‘Jihad’ containing 66 pages (Exh.P-82), literature under caption

‘Jamaat-e-Mujahiddin’ (Exh.P83), a book named ‘Hazarath Mohammed Kajikar’

(Exh.P-84), a book by name ‘Warning’ (Exh.P85), a book named ‘Albalaaq’

(Exh.P-87 and Exh.P-88), a book named ‘Yehoodiyonki Tarahim’ (Exh.P-90) and

collection of 40 Pamphlets (Exh.P-91), apart from the aforesaid Diary (Exh.P-92).

(B) Pursuant to the voluntary statement made by A-3, four books namely; Jadul

Mujahiddin, Albalaq, Taqbeer and Biddat, Exhs.P-64 to P-67 respectively were

recovered as per Panchnama Exh. P-68.

Mujahid and Jihad (Exhibits P-76 and P-77) and some letterheads.

17. The Prosecution also relied upon the confessional statements of Accused

Nos. 4, 6 and 7 which were recorded by the 9th Additional Chief Metropolitan

Magistrate, Bangalore City and marked as Exhibits P-268, P-269 and P-270

respectively.

18. After considering the material on record, the Trial Court in its judgment

dated 17.12.2011, took the view that the sanction accorded by the Under Secretary

in respect of the offences punishable under the provisions of Sections 10 and 13 of

the 1967 Act was defective.

19. The documents, books and literature referred to above were dealt with by

the Trial Court in Paragraphs 53-56 of its judgment as under: -

“53. At the earlier stage I have made a note that all the Urdu Books seized

by the I.O. from each accused will be considered together. I have observed

about the seizure of the books and other documents from Accused No.2 by

the I.O. under Ex.P105. The books and documents seized from Accused

No.2 are marked as Ex.P81 to 90. The Book namely Taqbir is marked as

Ex.P81. The book ‘Jihad’ is marked as Ex.P82. The Book ‘Jamal-e

Mujahiddin’ is marked as Ex.P83. The Book ‘Hazarath Mohammed

Zakikar’ is marked as Ex.P84. The Book ‘Warning’ is marked as Ex.P86.

The weekly magazine ‘Albalaaq’ is marked as Ex.P87 to 88.

One book is written by Raithullah Faruqui is marked as Ex.P89 and 40

pamphlets are marked as Ex.P90. PW-72 in his evidence has stated that, he

has secured the neighbouring witness Shahnawaz Ahmed, who knows Urdu

as pancha to know the contents of the said book. The said witness is

examined as PW-29. This witness turned hostile and not supported the

prosecution case. To some extent he has stated that one Mohammed Anwar

and Lakkasandra, landlord, called him to translate the Urdu Books. Further,

PW-29 has stated that he went to the house and the police were present in

the house of Anwar. He has also stated that the police told him to translate

Urdu Book and he translated the books given to him. Though this witness

has turned hostile about conducting of the panchanam i.e. Ex.P105, to some

extent we can gather that he has translated Urdu Books to the police. PW-72

has stated that on the books i.e. Ex.P81(Taqbir) there is a symbol of crossed

Rifle and Sword. PW-72 has stated that the witness, namely Shahnawaz

Ahmed has verified the book and told that in the 9 Chapter there is a phrase

as “Bharath mit janewala hai”, in the 10 Chapter as “Haath me gun utao”,

and in the 14th Chapter “Lashkar -e-Taiba”, PW72 has stated that, the

relevant chapters were marked in red ink and PW-29 has explained the

meaning of the relevant chapters. PW-72 has further stated that said

Shahnawaz told that those articles are anti-national and provocative. PW-72

has also stated that the said witness Shahnawaz explained the meaning of

the other books also. PW-72 also further stated that the witness Shahnawaaz

told that in the book ‘Warning’ it is written about the demolition of Babri

Masjid and also about the wrong Act by the order communities on Dargas.

54. As I discussed at earlier stage about the seizure of books Ex.P64 to 67

from Accused No.3 Ex.P64 is ‘Jadul Majahiddin’, Ex.P65 is ‘Albalaaq’,

Ex.P66 is ‘Taqbir’ and Ex.P67 is ‘Biddath’. PW-50 is the Police Official,

who seized the Ex.P64 from Accused No.3. PW-50 in his evidence has

stated that, the contents of the said books were explained by Rukman

Ahmed, who knows Urdu. The said witness examined as PW-27. He turned

hostile and not supported the prosecution case. But, this witness by seeing

Ex.P66 i.e. ‘Taqbir’ explained the ‘Taqbir’ means ‘Voice of Allah’. This

witness has also stated that in one Part at page No.166 it is mentioned that

‘India will destroy’ and also it is written that, ‘to hold the gun’ and the said

book is printed at Pakistan. He has also stated that, at Page No.64 there is a

recital about glorifying of injured persons in Jihad. PW-50 also in his

evidence stated that, PW-27 has examined the book ‘Taqbir’ and informed

that in the 9th Chapter it is written as ‘Bharath mit janewala hai’ and in the

said book at 10 chapter it is written as ‘Haath me Gun utao’. PW-50 further

stated that, the witness i.e. PW-27 has examined the contents of the books

seized by him. The advocate for Accused No.2 and 3 vehemently argued

that it is practically impossible to know the contents of all the books within

a short period and to translate it. They have also argued that by picking up

some sentences, the meaning of the book cannot be gathered and only after

reading the entire book only the real meaning of the book can be extracted.

On perusal of the evidence of PW-50 and PW-72 it appears that some

important chapters were only got explained by them. It is an admitted fact

that the true translation of entire book are not furnished. The I.O. has

referred all the books to the Chairman, Urdu Academy, for its translation.

The then Chairman of Urdu Academy, namely M. Nooruddin is examined as

PW-65. He has stated that during the year 2006 he was working as

Chairman at Urdu Academy and also he has stated that he has obtained

M.A., Ph.D., in Urdu language. He has also stated that in the month of July

or August 2006 A.C.P., Yashwanthpura Sub-Division, has sent some Arabic

and Urdu Books for their translation to English. He has also stated that

about 15 books were handed over to him, namely Sunflower notebook,

‘Alballaq’ Weekly Magazines, ‘Biddat’, ‘Jadul Mujahiddin’, ‘Tagbir’,

‘Jamale-Mujahiddin’, ‘Warning’, ‘Kya Aurath Masjid ya Edga nahi ja

sakthi’, two weekly magazines of ‘Albalaaq ke Jerayum’, 40 Pamphlets of

‘Jadul Mujahiddin’ and ‘Vedon ki duniyan me’. PW-65 has further stated

that because of shortage of time he took the assistance of his colleague.

During the cross-examination he has admitted that all the 15 books were

read by his friend. He has also admitted that, his friend has underlined some

portion which were only read by him. As argued by the advocate for the

accused without reading the entire text, the real meaning cannot be

extracted. It is true that PW-62 has stated that, he has read the portion which

were underlined by his colleague. Here I am to observe that as Stated by

PW-65 in the Chief Examination itself stated that because of shortage of

time he took the assistance of colleague, who well-versed in Urdu and

Arabian language. The person who assisted him is none other than the

colleagues of PW-65. PW-65 has stated that he has given the gist of all

books given to him in his report as per Ex.P225. He has stated that the gist

of Ex.P76 is that “democracy is not suitable to establish Islam religion and it

is inevitable to kill to secure power”. He has also stated that, in Page No.16

of Ex.P76 it is written that the muslim community is suppressed by majority

communities and the aim is not to awoke muslim community and the

muslim should not prepare with arms’, As such, the meaning is majority

communities attacking on the muslims. Further PW-65 has stated that in the

said book it is also written that ‘as muslims are minority community, in a

democratic system they cannot secure power’. He has also stated that in the

book ‘Taqbir’ i.e. Ex.P81, it is written that ‘India will destroy’ and also

written that ‘to take gun in the hands’. It is also written that ‘Lashkar-eToiba’ destroy the kaphirs and Lashkar-e-Toiba is fighting for good things.

Further, PW-65 has stated that he has given the gist of Ex.P64 i.e. Jadul

Mujahid book and its gist is that ‘Prophet has told to attack on India’. PW65 has stated that, in fact the prophet has not told so, PW-65 has specifically

stated that this book is provocative and most dangerous. He has also stated

that, the book Ex.P89 ‘Mujahid-ke-Azad’ is also provocative and anti-India.

Relating to Ex.P81 the Special Public Prosecutor has argued that, Kaphirs

are those ‘who deviate from the Islam path’. As Per Ex.P81 it is a war

against non-muslims. Much has been argued on both sides about the

meaning of Jihad. He has referred the book Islam, sex and violence, written

by Anwar Sheikh. In the 7th Chapter, the Author has examined Jihad as

“Jihad is an Arabic word, which literally means ‘endeavour’ but as

an Islamic doctrine, it implies fighting in the way of Allah (the

Arabic God) to establish his supremacy over unbelievers until they

relinquish their faith to become muslims or acknowledge their

subordination by paying a humiliation-tax called ‘JAZYIA’.”

55. The advocate for the Accused No.3 referred website copy Wikipedia,

wherein Jihad is described as follows:

“According to the authoritative Dictionary of Islam jihad is defined

as: “A religious war with those who are unbelievers in the mission

of Muhammad enjoined especially for the purpose of advancing

Islam and repelling evil from Muslims.” “

56. By referring terrorist organizations, the Special Public Prosecutor

argued that, in the name of Jihad these organizations are engaged in

destructive activities. As an example he has referred terrorist attacks on

World Trade Organisation, attack on Parliament of India and on Hotel Taj of

Bombay. In this case we are not concerned about the other incidents and we

have to see the materials placed in the present case. If we fall back to the

evidence PW-65 we can see that he has categorically stated that some of

books which were seized in this case are provocative, dangerous and also

anti-India. PW-65 is a responsible person. Therefore, though he has not

furnished the entire translation the gist of the book which he has furnished

has to be accepted.”

20. Considering the recovered articles and their connection sought to be

established through the other material on record and the inference that could be

drawn from such aspects, the Trial Court concluded:-

“In the foregoing paras I have also discussed about the seizure of

provocative articles from Accused Nos.2 and 3 which are dangerous and anti

-national. I have also discussed in the foregoing paras about the seizure of

explosive substance, arms and ammunitions by the Investigating Officer

from Accused Nos.2, 3, 4 and 6 at different places. It is true that when the

Accused No.3 was arrested, the Investigating Officer has seized some

explosive substance. But, with respect to Accused Nos.2, 4 and 6 based on

their voluntary statement explosive substance, and arms and ammunitions

were seized. As held in the decision reported in 2007 Crl. L.J. 1386 which I

have mentioned above, in the present case also presumption under Section

111A of Indian Evidence Act cannot be drawn. But, in the said case – law it

is also held that it is incumbent on the prosecution to prove that the

collection of men, arms and ammunitions was for no other purpose, but to

prepare to wage war against the Government of India to establish the

offence under Section 122 of Indian Penal Code and it is necessary for the

prosecution to establish that the fire power or the potential devastation

which could be caused by the arms and ammunitions recovered from the

accused was such that it would point to the design to prepare to wage a war

against Government of India. As I mentioned above the I.O. has seized

explosive substance from Accused No.6. Ballistic expert opinion and F.S.L

Report of explosive substance are in favour of the prosecution. It is true that

the documents seized from Accused No.1,5 and 7 does not amount to

incriminating. I have also observed that confession statement of the accused

does not help the prosecution case. But, as I discussed above Ex.P92 clearly

goes to show their active involvement in Jihad activities. Merely because

there is a reference of word ‘Jihad\ that alone does not constitute waging

war, but at Ex.P92 there is a reference to such an extent that the Accused

No.1 assured to supply gun, bomb, etc. for Jihad, Ex.P92 (h) further goes to

show that in Jihad meeting Accused No.4 and Accused No.6 were entrusted

to identify the important place and Dargas, which goes to show that the

accused had intention to commit the terrorist activities, such as, blasting of

important places including Dargas. The circumstances which I discussed

above goes to show that Accused No.1 to 6 conspired and abetted to wage

war against the Government of India and they have made the preparation in

this regard, so also with a common intention they have kept explosive

substance, arms and ammunitions in the secret place. No materials were

placed about the involvement of Accused No.7. As the activities of Accused

Nos.1 to 6 at the preparation stage I am of the opinion that Section 153-A

and 153-B of Indian Penal code does not attract. With these observations I

answers these points partly in affirmative and partly in negative.”

21. After placing reliance on the decisions of this Court in Kehar Singh and

ors. vs. State (Delhi Admn.)9

and Nazir Khan and others v. State of Delhi10, on

the aspect of conspiracy entered into by the Accused and the nature of offences

committed by them, the Trial Court observed: -

“73. In the above said decision their Lordships have also observed that the

most important ingredient of the offence of conspiracy is the agreement

between two or more persons to do an illegal act. The illegal act may or

may not be done in pursuant of agreement, but the very agreement is an

offence and is punishable. Reference to Section 120-A, 120-B of Indian

Penal Code would make these aspects clear beyond doubts. Entering into

an agreement by two or more persons to do an illegal act or legal act by

illegal means is the very quintessence of the conspiracy.”

22. In light of the discussion as aforesaid, the Trial Court by its judgment dated

17.12.2011 acquitted the Accused of charges under the provisions of the 1967 Act

for want of requisite sanction. Further, it acquitted A-7 of all the charges but

found A-1 to A-6 guilty as under:-

“Acting under Section 235(2) of Criminal Code of Procedure accused No.1

to 6 are convicted for the offences punishable under Sections 120-B, 121-

A, 121 of the Indian Penal Code, Sections 5 and 6 of the Explosive

Substances Act and Section 25 and 26 of the Arms Act.

Acting under Section 235(1) of Criminal Code of Procedure the accused

No. 7 is acquitted for the offences punishable under Sections 10, 13 of the

Unlawful Activities (Prevention) Act, Section 120-B, 121-A, 121, 153-A,

153-B of the Indian Penal Code and Sections 5 and 6 of the Explosive

Substance Act and Sections 25 and 26 of the Arms Act.

Acting under Section 235(1) of Criminal Code of Procedure accused Nos. 1

to 6 are acquitted for the offences punishable under Sections 10 and 13 of

the Unlawful Activities (Prevention) Act and Sections 153-A, 153-B of

Indian Penal Code.”

9 AIR 1988 SC 1883: 1988 SCR Suppl(2) 24

10 AIR 2003 SC 4427: (2003) 8 SCC 461

By its Order of Sentence dated 19.12.2011, the Trial Court imposed

substantive sentences, as tabulated in paragraph 2 hereinabove.

23. Four appeals, as detailed in paragraph 3 hereinabove, arising from the

judgment and order passed by the Trial Court, were dealt with and disposed of by

the High Court vide its judgment and order presently under challenge.

A) On the issue of sanctions accorded in respect of various offences, the High

Court found: -

“34. As per Section 45 of Unlawful Activities (Prevention) Act, 1967, the

Central Government has named the Secretary of the State Government,

Home Department to be the competent authority to issue sanction order. In

this case, PW-73 Bipin Gopala Krishna, Additional DGP has perused the

entire materials on record and recommended for grant of sanction order to

the State Government, Home Minister and the Chief Minister and after it

came back to him, he in fact, found sufficient materials and prima facie case

to grant approval, that means he has taken the decision to accord sanction as

under the provisions of IPC, the Government is the sanctioning authority.

Perhaps that may be reason, he has sent the papers to the Government, but

actually it is shown that he has taken the decision on finding prima facie

material that it is a fit case to grant sanction order and in fact, while file

came back from the Chief Minister and the Home Minister’s office,

consenting to accord sanction, he sent the same to the Under Secretary to

communicate the decision taken by him and the Government order to the

police that, it is a fit case to prosecute the accused. The Government and

PW-73 have rightly accorded sanction under Section 196 of Cr.P.C. and

section 45 of the Unlawful Activities (Prevention) Act.

35. What is to be looked into from the evidence of these witnesses is that

PW-73 Bipin Gopala Krishna, Addl. D.G.P., Internal Security, has deposed

that while he was working as a Secretary, P.C.A.S., Home Department,

Bengaluru, on 1.4.2006 he received a request from the Commissioner of

Police, Bangalore City, seeking sanction for prosecution from the

Government and he is the competent authority to issue sanction order. The

entire materials passed through him has been examined by him and decided

to accord sanction and thereafter he obtained the ratification from the

Government and then ordered to issue sanction order through the Under

Secretary. We can understand if PW-73, who was the then Secretary to the

Home Department has not at all come to the conclusion that it is a fit case to

accord sanction, the things would have been different, but he has rightly

applied his mind and taken a decision. The Under Secretary of the Home

Department has only communicated the sanction order on behalf of the

Government.

36. As could be seen from the entire records, we would say that it is the

decision taken by PW-73 on behalf of the Government. Therefore, in our

opinion, the sanction accorded to prosecute the case u/s.120- B, 121, 121-A,

122, 124-A, 153-A and 153 and as well under the Unlawful Activities

(Prevention) Act, 1967 are valid and correct. The trial Court has persuaded

itself that it is only the Under Secretary who has taken the decision, and

wrongly rejected the sanction order so far as it relates to the offence u/s.10

and 13 of the Unlawful Activities (Prevention) Act, 1967. In our opinion, the

said stand taken by the learned Trial Judge is not correct. The trial Court

ought to have held that even the sanction accorded to prosecute the accused

for the offence punishable under Sections 10 and 13 of the Unlawful

Activities (Prevention) Act, 1967 is also valid. We accordingly hold that the

trial Court has committed a serious error in doing so. We hold that the

prosecution has also proved that the sanction accorded by PW-73 though it

is ratified by the Government or approved by the Government, it is virtually

the decision taken by PW-73 is evident. Therefore, the sanction order so far

it relates to Section 10 and 13 of the Unlawful Activities (Prevention) Act,

1967 is also valid and correct.

37. So far as it relates to sanction under the Explosive Substances Act and

u/s.39 of the Arms Act, PW-70 Ajay Kumar Singh, the Commissioner of

Police has accorded sanction, while he was working as Commissioner of

Police, at Bengaluru. He has categorically stated in his evidence that he has

issued the sanction order as per Ex.P-266. He has deposed that, on 1.4.2006,

he has received a report from the Deputy Commissioner of Police, Central

Division along with the report of the ACP, Yeshwanthpur and also the

documents like FIR, FSL report etc., and after studying the report and the

documents he has accorded sanction as per Ex.P-266 and he has stated that

he has also issued sanction u/s.7 of the Explosive Substances Act after going

through the entire materials on record. Therefore, the Commissioner of

Police, city of Bangalore has issued sanction order under Ex.P-266 and P267 for the offence punishable under Arms Act and Explosive Substances

Act.”

B) While affirming the acquittal of A-7, the recoveries from A-1 to A-6 and

the material on record were considered from the standpoint as to whether

conspiracy as alleged was proved or not. The questions were posed as under:-

“78. In this background, Court has to consider whether any materials are

available to show the conspiracy between accused Nos.1 to 6 who are

convicted by the trial Court and find out whether the recovery of the

incriminating articles at the instance of accused Nos.2 to 7, whether it

establishes the conspiracy being held between accused nos.1 to 6 and that

conspiracy is with regard to destabilize the Government of India and also

create any communal dis-harmony amongst the people of India and whether

they are anti social elements and also their conduct coupled with recovery

amounts to any offence committed by them as invoked by the police.”

C) While dealing with the effect of Exhibits P-27 and P-92 in light of the

evidence on record, the High Court stated:-

“87. PW4-Firoz @ Firoz Pasha has admitted that A-2, A-4, A-5 and A-6

including A-1 were all known to him and he knew A4 since childhood. He

further deposed that there were two Masjids and this witness was also

attending Masjid to offer Namaz. In fact, the accused Nos.2 to 6 were ousted

from Masjid as their Namaz procedures were different. He has also stated

admitting that A-1 came to Chinthamani and A-2 has introduced A-1 to him

on the ground that A-1 and A-2 had become friends at Saudi Arabia.

Though, he denied that, in the said meeting they met each other at

Chinthamani, A-1 has given a provocative speech to other accused persons

that the Muslims have to declare Jihad and he would supply money, Bomb

and also give training to destroy India. However, it clearly goes to show that

A-1 to A-6 were known to each other and A-1 came to Chinthamani and he

met all the other accused persons and had talk with them. In this

background, one has to understand the contents of Ex.P-92.”

D) The contents of Exhibit 92 were then considered as follows:-

“94. The sum and substance of the recitals in Ex P 92 (c) and (d) disclose

that 'Jihad' meeting was held between the accused persons and other so

called trustees under the guise of a religious meeting. Abdul Rehaman (A-1)

was introduced to the others by Afsar Pasha (A-2). A-1 addressed the

meeting saying that in India Muslims are treated very badly

(terribly/dreadfully) and Babri Masjid has been demolished. Muslims were

killed in Gujarat and all the Muslims have to fight against this. A-1 would

supply money, guns, bombs and explosives etc., In the same meeting, it is

also narrated that the other trustees Firoz, Jameer and Ameer who have not

supported the speech of A-1, they were reluctant to participate by saying

that if they do such illegal acts as preached by A-1, that, it would cause

inconvenience to the Muslim community, in India and therefore, they all

went away from the meeting. But other persons A-2 A-4 and A-6 who have

accepted the speech of A-1 subscribe their signatures to the said meeting

including A-1 who has put his signature and the meeting was concluded at

8.00 p.m.

95. Of course, there is some over-writing with regard to the date, which

appears to have been overwritten as 10 instead of 12 and there is overwriting with regard to the name of Firoz at item No.7. But the evidence of

the above said witnesses as already noted, it is their case that they are

conducting meetings together for the benefit of the Trust and that they

admitted that Ex.P-92 is their meeting book. It is the responsibility of the

accused to explain if there is any over-writing or any mistake in the said

document, because even the signatures of A-1, A-2, A-4 and A-6 have also

been sent to experts and the experts have also given opinion that it is the

signature of A-1, A-2, A-4 and A-6.

*** *** ***

100. The sum and substance of the Kannada version goes to show that A-5

addressed the said meeting by saying that Islam was sent in the hands of

Paigambar, which is superior to all the other religions. The 'Jihad' has to be

declared if anybody causes damage to it. A-6 also addressed the said

meeting by saying that 'Jihad' has to be started by offering lunch (Davat) and

if anybody opposes, 'Jihad' is to be declared at any time. Afsar Pasha (A-2)

also addressed the said meeting saying 'Jihad' has to be declared in the name

of God in case anybody is killed they will become ‘Shahid’. A-2 also further

addressed explaining what is meant by Kuwath, that “Kuwath” means

“Power” and referring to the hand-writings of the book given by Tariqsahni

and Bangladesh. A-2 told that the power is in Bombs, Bandooks and AK-47.

A-2 instructed A-4 and A-6 to identify the Dargas and other important

places for that they all agreed. Ex.P92(g) also goes to show that the next

meeting was fixed on 31.12.2016 by saying so the 3rd meeting was

concluded at 8.00 p.m.

101. Looking to the above said Ex.P-92(c) to (h), it discloses and at any

stretch of imagination, it cannot be said that they are all religious meetings

pertaining to the Trust, that they have categorically admitted that this Ex.P92 is the minutes book pertaining to the Trust, there is not even a mention of

any objectives of the Trust and the policies. On the other hand, the entire

meetings were held for the purpose of taking action of revenge, for

demolishing of Babri Masjid and killing of Muslims in Gujarat and for that

purpose they are taking training and collecting guns, bombs etc., In this

background, the court has to understand the purpose of meeting of minds of

A-1, A-2, A4 to A-6 who have actually participated in these meetings

particularly A-1, A-2, A-4 and A-6 in the first meeting and A-2, A-4 to A-6

in other meetings. Of course, conspicuously A-3 has not been participated in

any of these three meetings.”

E) Other material on record was considered thus:

“116. Apart from giving the above said report, in fact, some of the seized

books have been shown to him. After seeing Ex.P-76, which is named

“Sunflower note book” as true, hand written by one Shaik Abdul, belonging

to Soudi Arabia which was published in Bangladesh. The contents of the

said document spoken to by PW-65 is that-

“Democracy is not suitable to establish Islam religion and it is

inevitable to kill to secure power’.

He has also written in the said book at page 16, that “the Muslim

community is suppressed by majority communities and the aim is not to

awoke Muslim community and the Muslim should not prepare with arms.”

The meaning is majority communities are attacking on the Muslims. PW65

has further deposed that in the said book, it is also written that in a

democratic system, the Muslims cannot secure power. The witness has also

deposed by looking into Ex.P-81, the book ‘Taqbir’ which contain the

quotations like “India will destroy”, to take gun in the hands and LeT

destroy the Kaphirs and 'Lashkar-e-Taiba' is fighting for good things. PW-65

on seeing Ex.P-64 a book by name ‘Jadul Mujahid’ book and its gist is

‘Prophet has told to attack on India. Further, PW-65 has clarified that at no

point of time, Prophet Mohammad has stated so. However, he states that the

narration of the fact in such a manner in Ex.P-64 is provoking and it is very

dangerous. He has stated that the book Ex.P-89 ‘Mujahid-ke-Azad’ is also

provocative and anti national. He has also admitted that the Kaphirs are

those who deviate from the Islam path’ and Ex.P-81 also says that ‘waging

war’ against non Muslims. It is admitted that some of the books contain

about 'Jihad'. This witness has also stated that after looking into the books

he has given such information he has also admitted that he has not read the

entire books, but whatever the contents shown to him, he has actually

disclosed the same to the court. On looking into the above said evidence of

PWs.50, 72, 65 and 29 coupled with Ex.P92 as referred to above, we can

safely hold that the accused persons 1, 2, 4 to 6 have indulged in

provocative and dangerous activities against India, though their acts have

not been implemented, nevertheless, their mind set has been made very

much clear. PW-65 is a responsible person has categorically stated that the

books which were recovered at the instance of A-2, A-3 and A-5 have

clearly discloses that they contain very dangerous articles and anti India

recitals particularly those books provoked for destruction of the Indian

country.”

F) The recoveries made from the individual Accused as well as the impact

thereof was then considered as under: -

“120. We have already extensively discussed about recovery of some

articles at the instance of the accused persons. Of course, there is no

incriminating articles recovered at the instance of Accused No.1.

Though voluntary statement of Accused No.1 was recorded as per

Ex.P.262 and under Exs.P32 and P39 (mahazars), the police have

recovered 1 pocket diary (MO.1), one mobile phone (MO.10), 1

passport (Ex.P40), 6 chits containing phone numbers (Exs.P41 to P46)

and 4 passport size photographs (Exs.P47 to P49). In fact these

articles are not incriminating, as the prosecution has not able to

establish any connectivity of these materials with Accused No.1 with

other accused persons, though these materials recovered includes the

mobile phone of Accused No.1.

121. It is evident from the records that from A-2, under Exs.P.129 and

P.69, the police have recovered 1 mobile phone (MO.17), Re Book

(MO.18), a small diary (Ex.P130), DL (Ex.P131), STD Bill

(Ex.P.132), Visiting Card (Ex.P133) and a bill with phone Nos.

(Ex.P134) and also one letter head (Ex.P70), 1 postal cover (Ex.P71),

letter (Ex.P72), 1 passport from (Ex.P.73), 1 Affidavit (Ex.P74).

According to the Investigating Officer, he has not collected any

material to connect the accused with these articles in the crime,

therefore, they are also not relevant to be discussed. However,

voluntary statement of A-2 was recorded under ExP.273 and on

21.02.2016 Mos.2 to 9 were recovered at the instance of A-2, which

are very much important. In fact, these articles are incriminating and

in fact they are dangerous articles i.e. Electrical detonators, Gelatin

Sticks, 114 metal pellets and 3 hand grenade and other articles.

Though under Ex.P.105, some books have been recovered, we have

discussed the connectivity of those books with the crime already in

the aforenoted paragraph.

122. From A-3, on the basis of his voluntary statement (Ex.P.272)

under a mahazar (Ex.P.15), some chits containing phone numbers,

small telephone diary, courier receipts, small chit of accounts, three

photographs were recovered, which are marked at Exs.P.51 to P.59).

These are also not incriminating and no connectivity is established

from these articles. However, as we have mentioned, the police have

also recovered 10 Gelatin sticks and detonators from these accused,

which are incriminating and it gone without any explanation. Under

Ex.P62, one passport was also recovered as per Ex.P63; fromA-3

some books have also recovered under Ex.P68, which we have

already discussed.

123. From A-4, under Ex.P112, the Police Officer has recovered one

reliance note book, paper with phone numbers, visiting card and a

leather purse, which are marked as Exs.P113 to P.116 under MO.56.

According to the Investigating Officer, these things are also not

incriminating materials and no connectivity has been established.

However, under Ex.P169, on the basis of voluntary statement

(Ex.P.275), the Investigating Officer has recovered one Tin Bomb

from this accused and also recovered under Ex.P.152 some books

which are incriminating and also recovered from A-4 and A-6 a book

regarding ‘Jihad’ at Ex.P167, which we have already discussed.

124. From A-5, as we have already discussed in detail, on the basis of

his voluntary statement (Ex.274), the police have recovered one note

book (Ex.P76) and other books, and also a small diary (Ex.116), in

respect of which no connectivity is established. Therefore, from A-5

no incriminating materials have been recovered except one note book

(Ex.P276) under mahazar (Ex.P75).

125. From A-6, a small diary was recovered and under Ex.160

(mahazar) some incriminating materials have been recovered i.e. 1

small tin bomb, 1 tiffin box bomb with wires, 2 electrical detonators,

2 wires and country made revolvers marked at MO.23 and live bullets

(MOs.24 & 25) are also recovered under mahazars, which are marked

at Ex.P56 to P166. Except the bombs, the connectivity of Electrical

Detonators, the other materials recovered with the crime are not

established.

126. From A-7, the police have recovered under Ex.P.137 one purse

(MOs.21); Nokia mobile (MOs.22), telephone number slips, visiting

cards and STD booth bills marked as Exs.P.138 to P.142 and also

recovered one passport (Ex.P.146), one book in Urdu with picture of

crossed guns (Ex.P.147) and a small diary (Ex.P.148) and 07 paper

pieces marked at Exs.P.149 to P.151).

*** *** ***

130. On careful perusal of the statement of these accused persons

recorded under Section 313 of Cr.PC., there is no sufficient acceptable

explanation by them as to why they were possessing these contraband

articles, which are sufficient to cause damage to life and property of

the public at large, if they explode. It is also not explained as to the

reason for them to keep all these articles. According to the learned

counsel for the accused, the accused persons are law-abiding citizens.

If they are really law-abiding citizens, why they have to keep such

dangerous articles with them. When there is no reason or explanation

by the accused persons for possessing the said incriminating articles

with them, then it can be safely inferred that, the said articles were

kept by them for the purpose of doing some illegal acts in furtherance

of their conspiracy, as detailed supra.

131. Recovery of the above said articles have to be tested with other

materials on record. As we have already discussed, these articles have

some connection with the conspiracy that has been occurred between

some of these accused persons. Of course, there is no material to show

that A-3 and A-7 in any manner participated in the conspiracy, as we

have already discussed. At the cost of repetition, we may say that in

Ex.P92 dated 10.12.2003, 19.08.2005 and 18.12.2005, the accused

persons, who have participated in these meetings, have taken oath to

take revenge for the demolition of Babri Masjid and killing of

Mohhammadans at Gujarath. They have decided to join their hands

for ‘Jihad’ by taking training. That means, they have to possess

bombs, guns and other things and use them whenever instructed by

their superiors. Particularly in the meeting held on 18.12.2005, the

accused persons had also discussed with regard to declaration of

‘Jihad’ against the persons, who have no belief in Islam and they have

also decided to possess bombs, rifles, AK-47 etc.”

G) The material on record was then looked into to consider as to what

offences were established. The relevant discussion was:-

“141. Applying the materials available on record sofar as these

offences are concerned, admittedly the Investigating Officer in his

evidence has admitted during the course of the cross-examination that,

except the voluntary statement of accused persons stating that they are

working for an Association which is declared as ULF i.e., LeT and

that A-1 is working as leader for South India pertaining to the said

ULF Association. He also admitted that, there is no other material

before the court and he has not collected any materials to show that

any of the accused persons are either members or taken any part in

meeting of such Association or contributed or received any

contribution for the purpose of such association or assisted the said

association in any manner. He has also stated that he has received

some factual information from his informants that the accused persons

are connected to LeT, which is an unlawful banned Association.

Admittedly, the voluntary statement of the accused persons cannot be

relied upon by the court which incriminates the accused, as the same

is hit by Section 25 of the Indian Evidence Act. The prosecution has to

prove the said allegations independently. None of the witnesses have

deposed anything about any of the accused persons taking part or

committing, advocating, abetting and instigating the commission of

any unlawful activities as per the provisions under Sections 10 & 13

of the Unlawful Activities (Prevention) Act. Though we came to the

conclusion that sanction accorded by the competent authority to

prosecute the accused persons for the offences under Sections 10 & 13

of the said Act, but the evidence placed before the court does not

establish any of the said offences either under Sections 10 & 13 of the

Act. Therefore, we do not find any strong reasons to interfere with the

judgment of the trial court in sofar as acquitting the accused for the

offences under Sections - 10, 11 & 13 of the said Act. Hence, there is

no need for this Court to discuss the decisions cited by either of the

parties to the proceedings.

*** *** ***

145. On perusal of the evidence adduced before the court, the

prosecution has relied upon the evidence of PWs. 1 to 8 and 13 so far as

to prove the said provisions that these accused persons particularly A-2

and A-6 in furtherance of their conspiracy, wanted to induct PWs. 1 to 8

& 3 to join their hands for the purpose of destroying peace and create

unlawful disharmony in the society etc. But, as we have discussed, the

above witnesses have turned totally hostile to the case of the prosecution

and they never stated anything about the conspiracy hatched between the

accused, nor they have stated that A-2 and A-6 have provoked them in

such a manner which amounts to any prejudicial to national integrity or

attempt to promoting enmity between different caste, creed, religions,

races, place of birth, residence, etc. In this manner also we have

absolutely no difference of opinion to that of the opinion of the learned

Sessions Judge. We affirm the judgment by saying that the prosecution

has also failed to prove the ingredients of Sections- 153-A and 153-B of

IPC in order to establish the link between the accused and the offices

alleged. Hence, acquittal of the accused persons for the said offences

under Sections- 153-A and 153-B of IPC also does not deserve to be

interfered with by this court.

*** *** ***

148. As could be seen from the above said provisions, under Section

121-A, conspiracy to commit offence punishable under Section 121

itself is punishable even for any activity in pursuance or in consonance

with such conspiracy. Therefore, Section 121 need not be fully

established that the accused persons have waged war against the

Government or attempted to wage war against the Government or

attempted to wage war or abetted to wage war. Even mere conspiracy to

wage war or attempt wage war or abet to wage war, is punishable under

Section 121 and if the conspiracy is to overawe the Government, by

means of criminal force or the showing of criminal force shall be

punished with imprisonment for life or with imprisonment which may

extend to 10 years and fine.

149. Section 120-B says that, when two or more persons agree to do any

illegal act or an act which is not by illegal means, such an agreement is

designated a criminal conspiracy and if any such conspiracy to commit

an offence is punishable with death or imprisonment for life. Then such

persons are liable to punishment for a term of two years or more.

150. So, in order to attract Section 120-B, it is clear from the above said

provision that, the prosecution has to establish that the accused persons

are more than two in number and they have entered into an agreement

and that agreement is designed for the purpose of commission of an

illegal act or doing an act by illegal means and such illegal acts amounts

to commission of offences under the provisions of IPC and other laws.

So far as Section 121 of IPC is concerned, the prosecution has to prove

that the accused persons have actually waged war against the

Government or attempted to wage war against the Government.

151. From the above provisions, it is abundantly clear that if the

conspiracy relied upon by the prosecution is with reference to Section

121 of IPC, then the said conspiracy is exclusively and specifically

punishable under Section 121-A. Under such circumstances Section

120-A and 120-B of IPC cannot be invoked. If it is done, the same

amounts to imposing double punishment. Hence, we are of the opinion

that the conviction and sentence under Section 120B is not sustainable.

152. It is abundantly clear that, if the conspiracy relied upon by the

prosecution is with reference to Section 121 of IPC, the said conspiracy

is exclusively and specifically punishable under Section 121 of IPC, the

said conspiracy is exclusively and specifically punishable under Section

121-A, but under such circumstances, Sections 120-A and 120-B cannot

be invoked.”

H) After considering the decisions of this Court in State (NCT of Delhi) v.

Navjot Sandhu @ Afsan Guru11 and Nazir Khan & Ors.10, the High Court

concluded that the ingredients of Section 121 of the IPC were absent in the

instant case but the provisions of Section 121-A of the IPC were attracted. It was

observed:

“159. The accused persons have also discussed with regard to the

funding for ‘Jihad’ by means of an association and also they have

taken a decision to prepare themselves with the weapons in order to

fight against such activities. These activities of the accused clearly

disclose that, they wanted to take action against the Government etc.

160. As we have also observed that some of the books which were

seized from the custody of the accused persons, it also discloses that

those books must have been persuaded the accused persons to pass

such resolution under Ex.P92. Those books contained anti-national

recitals which says that India will be destroyed and Mohammadans

should take guns and fight against India, etc. So the court has to

couple the entire material on record to draw an inference as to what

exactly the intention of the accused persons in holding such meetings.

Though we are of the opinion that no damage has been done, no

activities have been taken place in consonance with their conspiracy

and there is no heavy magnitude of any damage or loss to the country,

nevertheless their prime intention is to cause heavy damage to the

people and the country. We are able to understand this intention and

mind set of the accused coupled with they joining together and

conspire to execute such an intention. In our opinion, their intention

and mindset are sufficient to attract the provision under Section 121. A

though not under section 121 of IPC.

161. We would also like to mention here that some of the accused

persons noted above have gone further and have collected Electrical

Detonators, Gelatin sticks and bombs. This Conduct shows that they

have decided to implement the decision taken by them, slowly and

11 (2005) 11 SCC 600.

gradually and for that purpose only started collecting the materials of

such magnitude sufficient to destroy India. But they were caught at

the initial stage of conspiracy while planning as to how to execute

their decision. It is not necessary for the courts to wait for till such

time, allowing the accused persons to collect so much of materials and

only after causing damage to the country, countrymen and the

property of the country men, and then take action. In our sincere and

honest opinion, such activities even at the stage of conspiracy itself

should be nipped at the bud. Otherwise, it may end up in causing

irreversible damage. Therefore, we are of the considered opinion that

the trial court has not committed any mistake in convicting the

accused persons and sentencing them for life. However, the trial Court

instead of sentencing the accused under section 121-A for life,

inadvertently by mistaken notion invoked Section 120-B of I.P.C.,

which needs to be corrected.”

I) Finally, the operative order passed by the High Court was:-

“The appeal filed by A1, A2, and A4 to A6 in Crl.A.No 220/2012

and the Appeal filed by the State in Crl.A.No 530/2012 and the

Appeal filed by Accused No.3, in Crl.A.No.1123/2013 are hereby

partly allowed. The Appeal filed by the State in Crl.A.No.531/2012 is

hereby dismissed. The Judgment of conviction and sentence passed by

the trial Court is modified. Consequently,

(i) A-1, A-2 & A-4 to A-6 are hereby convicted for the offence

under Section 121-A of IPC. Sentence passed by the trial Court

is enhanced, the Accused shall undergo rigorous imprisonment

for life for the offence under Section 121-A of IPC and to pay

fine of Rs.5,000/- and in default, to undergo S.I. for a period of

one year. (Impugned judgment of conviction is confirmed to that

extent and sentence is enhanced). However ,A1 to A6 are

acquitted of the charge under Section 121 and 120B of IPC.

Accused No 3 is acquitted also of the charges under section 121

A of I.P.C. (to that extent conviction and sentence is set aside).

(ii) A2, A3, A4 and A6 are hereby sentenced to undergo S.I. for

7 years and shall pay fine of Rs.5,000/-and in default to undergo

S.I. for 1 year for the offences under section 5 of the Explosive

Substances Act 1908. (to that extent impugned judgment is

confirmed). However, Accused No.1 and 5 are acquitted of the

Charges under section 6 of the said Act. (to that extent the

impugned conviction and sentence is set aside).

(iii) Accused No.6 is convicted for the offence under sections 25

and 26 of the Arms Act and sentenced to undergo S.I. for a

period of 5 years and shall pay a fine of Rs.5000/- in default to

undergo S.I. for one year for the offence under section 25 of the

Arms Act. He is also sentenced to undergo S.I. for 3 years for

the offence under section 26 of the Act. (to that extent,

impugned conviction and sentence is confirmed). However A2,

3 and 4 are acquitted for the offence under section 25 and 26 of

the Arms Act. (to that extent judgment of conviction and

sentence is set - aside).

(iv) The judgment of Acquittal passed by the Trial Court so far it

relates to Accused No 7 is not disturbed (confirmed).

v) Sentences of imprisonment shall run concurrently. Set off for

the period of imprisonment already undergone by the Accused

persons shall be given under section 428 of Criminal Procedure

Code.

vi) As we found that A3 has already undergone the period of

imprisonment imposed upon him, he shall be released forthwith,

if he is not required in any other case.

(vii) Registry is hereby directed to communicate the operative

portion of the judgment to the concerned Jail authorities for

appropriate action.”

24. Being aggrieved by the decision of the High Court, instant appeals by

special leave have been preferred by Accused Nos. 5, 6, 1 and 4. As stated

hereinabove, neither any appeal has been filed by A-2 and A-3 challenging their

conviction nor any challenge is raised by the State against dismissal of its

appeals.

The scope of these appeals is thus confined to the challenge raised by

Accused Nos. 5, 6, 1 and 4

25. Special Leave Petitions preferred by A-5, A-6 and A-1, from which their

appeals arise, came up on 21.10.2016, when notice was issued by this Court

restricted to the question of sentence to be imposed on them. An affidavit sworn

by A-1 on 28.11.2016, was thereafter filed submitting inter alia that he was 21

years of age when the offence was committed and if let out of jail on sentence

undergone, he would support his family by earning an honest living, without

causing any harm to fellow countrymen. Similar affidavits were filed by the

other Accused. Later, the Special Leave Petitions of all the four accused came up

on 28.04.2017, when the Court called for a report from the National Investigation

Agency. Thereafter, by order dated 31.1.2018, Special Leave to Appeal was

granted by this Court, leading to registration of these appeals.

26. We heard Mr. Siddhartha Dave, Ms. Nitya Ramakrishnan and Mr. Ratnakar

Dash, learned Senior Advocates for A-6, A-1 and A-4 respectively, Mr. Farukh

Rashid, learned Advocate for A-5 and Mr. Nikhil Goel, learned Additional

Advocate General for State of Karnataka.

The role of the National Investigation Agency in these appeals was only

pursuant to the order dated 28.4.2017. Since the submissions were advanced on

merits, there was no occasion for hearing the National Investigation Agency.

27. At the outset, the preliminary submission advanced on behalf of the State

must be dealt with. It was submitted that the order dated 21.10.2016 having

restricted the scope of the matters to the issue of sentence to be imposed on the

accused, the submissions regarding conviction need not be entertained. Relying

on the affidavits filed by the Accused which led to the passing of the order dated

28.04.2017, it was submitted that even the Accused also understood the scope of

the matter being restricted to the quantum of sentence. In response, reliance was

placed by the learned counsel for the Accused on the decision of this Court

reported in Yomeshbhai Pranshankar Bhatt v. State of Gujarat12 to submit that it

would be entirely up to this Court to consider the matter on merits and not restrict

the submissions in any manner. Paragraphs 4 and 8 of said decision are:-

“4. The learned counsel for the appellant urged that though at

the time of issuing notice, this Court limited its rights to raise

points only within the confines of Section 304 of the Penal

Code, the Court is not bound at the time of final hearing with

that direction given while issuing notice and the appellant is

entitled to urge all the questions including his right to urge that

he should have been acquitted in the facts and circumstances of

the case.

8. The provisions of Article 142 of the Constitution have been

construed by this Court in several judgments. However, one

thing is clear that under Article 142 of the Constitution, this

Court in exercise of its jurisdiction may pass such decrees and

may make such orders as is necessary for doing complete justice

in any case or matters pending before it. It is, therefore, clear

that the Court while hearing the matter finally and considering

the justice of the case may pass such orders which the justice of

the case demands and in doing so, no fetter is imposed on the

Court’s jurisdiction except of course any express provision of

the law to the contrary, and normally this Court cannot ignore

the same while exercising its power under Article 142. An order

which was passed by the Court at the time of admitting a

petition does not have the status of an express provision of law.

Any observation which is made by the Court at the time of

entertaining a petition by way of issuing notice are tentative

observations. Those observations or orders cannot limit this

Court’s jurisdiction under Article 142.”

Considering the facts and circumstances on record including the fact that

while granting Special Leave to Appeal, the matter was not restricted with regard

to the question of sentence, we proceed to consider the submissions advanced on

12 (2011) 6 SCC 312

behalf of the appellants on merits rather than restrict the scope of the matter to

the issue of sentence.

28. It was submitted on behalf of the appellants:-

a) The Prosecution witnesses namely PWs 1 to 8 having failed to

support the case of Prosecution, there was no substantial

evidence on the basis of which it could be said that the

allegations against the accused collectively or individually

were substantiated. Further, the confessions of all the

concerned Accused were also not accepted by the Courts

below.

b) The basic charges namely one under Sections 121, 153A and

153B of the IPC having not been established, the only

subsisting charge was one under Section 121A of the IPC,

which was also devoid of any substance.

c) The recovery of explosive substances, Diary Exh.P-92 and

other material, by themselves were insufficient to sustain the

charge under Section 121A of the IPC.

d) Reading the provisions of Section 120B(1) and Section 115 of

the IPC, where the basic offence under Section 121 was not

committed, the sentence could not be greater than seven years.

e) In any event of the matter, the trial court having awarded

substantive sentence of imprisonment for seven years under

Section 121A of the IPC, there was no reason for enhancing

the quantum of punishment to life imprisonment. The facts on

record did not justify such exercise;

f) The only involvement of A-1 was the fact that he had attended

the first meeting of the Trust, which would at best get

substantiated through the evidence of handwriting expert.

However, viewed in light of the admission given by the

Investigating Officer that A-1 did not understand Kannada

language, signature below the text in Kannada would not

make A-1 liable in any manner in the absence of any other

substantial evidence or material.

g) None of the witnesses had identified A-1 in court and neither

the text of Exh - P92(c) nor the case of the Prosecution that A1 signed the same, was put to him in his examination under

Section 313 of the Code13

h) Apart from the solitary material of the first meeting of the

Trust, there was nothing against A-1, not even a suggestion of

any other meeting or contacts with the rest of the Accused.

13 Code of Criminal Procedure, 1973

i) In any case, the first meeting was said to have been held in the

year 2003, whereas the recoveries in the instant case are of the

year 2006.

j) In terms of Section 196 of the Code, 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.

29. It was submitted on behalf of the State Government:

a) The material on record, especially huge quantities of

explosive substances as well as the literature and books

recovered at the instance of the concerned accused put the

matter beyond any doubt.

b) The Diary Exh.P-92 very clearly established the intent of the

Accused who had assembled, who held meetings and had

appended their signatures below the concerned resolutions.

c) The signatures were identified by handwriting expert, who,

duly supported his conclusions with reasons.

d) The movements of A-1, who was not a local person in the

town around the time when the meetings had taken place,

further lent corroboration and support to the evidence

concerning his involvement.

e) Considering the large quantity of recovered explosive

substances and the other material including books, literature

and Diary Exh.P-92, case was certainly made out for

enhancement of punishment.

f) The sanction accorded under Section 196 of the Code was

rightly held to be valid and there was no infirmity on any

count.

30. At the outset, the submissions regarding the correctness and validity of the

sanction accorded under Section 196 of the Code must be considered. The facts

on record as set out in Paragraphs 34 and 35 of 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, we hold that 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 in Paragraph 37 of its

decision does not call for any interference.

31. Turning to the merits of the matter, the evidence on record can be classified

mainly in following segments:

a) Oral testimony of Prosecution witness Nos. 1 to 8 and 13.

b) Evidence regarding recoveries

i) 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 as Exh.P-92. 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-Firoz 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

thereof14

ii) 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 Diary

Exh.P-92. The tenor and text of the contents were captured quite correctly

by the trial court in its judgment as referred to hereinabove. 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 hereinabove

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.

14 C. Muniappan & Ors. Vs. State of Tamil Nadu – (2010) 9 SCC 567;

Radha Mohan Singh & Ors. Vs. State of U.P. – (2006) 2 SCC 450.

32. Before we turn to the question whether the deduction or conclusion, on the

basis of the material on record, as stated above, was rightly arrived at by the

Courts below, some of the observations made by this Court in Lal Singh v. State

of Gujarat and Another15 in the context of matters involving terrorist activities

where arms and ammunitions were recovered at the instance of or on disclosure

by the accused, must be noted. It was observed by this Court:

“84. The learned Senior Counsel Mr Sushil Kumar submitted that

prosecution has not proved beyond reasonable doubt all the links

relied upon by it. In our view, to say that prosecution has to prove

the case with a hundred per cent certainty is a myth. Since last

many years the nation is facing great stress and strain because of

misguided militants and cooperation to the militancy, which has

affected the social security, peace and stability. It is common

knowledge that such terrorist activities are carried out with utmost

secrecy. Many facts pertaining to such activities remain in personal

knowledge of the person concerned. Hence, in case of conspiracy

and particularly such activities, better evidence than acts and

statements including that of co-conspirators in pursuance of the

conspiracy is hardly available. In such cases, when there is

confessional statement it is not necessary for the prosecution to

establish each and every link as confessional statement gets

corroboration from the link which is proved by the prosecution. In

any case, the law requires establishment of such a degree of

probability that a prudent man may on its basis, believe in the

existence of the facts in issue. For assessing evidence in such cases,

this Court in Collector of Customs v. D. Bhoormall [(1974) 2 SCC

544 : 1974 SCC (Cri) 784] dealing with smuggling activities and

the penalty proceedings under Section 167 of the Sea Customs Act,

1878 observed that many facts relating to illicit business remain in

the special or peculiar knowledge of the person concerned in it and

held thus: (SCC pp. 553-55, paras 30-32 and 37)

“30. … that the prosecution or the Department is not required

to prove its case with mathematical precision to a

demonstrable degree; for, in all human affairs absolute

certainty is a myth, and—as Prof. Brett felicitously puts it —

‘all exactness is a fake’. El Dorado of absolute proof being

unattainable, the law accepts for it probability as a working

substitute in this work-a-day world. The law does not require

the prosecution to prove the impossible. All that it requires is

15 (2001) 3 SCC 221

the establishment of such a degree of probability that a prudent

man may, on its basis, believe in the existence of the fact in

issue. Thus, legal proof is not necessarily perfect proof; often it

is nothing more than a prudent man's estimate as to the

probabilities of the case.

31. The other cardinal principle having an important bearing

on the incidence of burden of proof is that sufficiency and

weight of the evidence is to be considered — to use the words

of Lord Mansfied in Blatch v. Archar [(1774) 1 Cowp 63 : 98

ER 969] (Cowp at p. 65) ‘according to the proof which it was

in the power of one side to prove, and in the power of the other

to have contradicted’.

* * *

32. Smuggling is clandestine conveying of goods to avoid legal

duties. Secrecy and stealth being its covering guards, it is

impossible for the Preventive Department to unravel every link

of the process. Many facts relating to this illicit business

remain in the special or peculiar knowledge of the persons

concerned in it. However, this does not mean that the special or

peculiar knowledge of the person proceeded against will

relieve the prosecution or the Department altogether of the

burden of producing some evidence in respect of that fact in

issue. It will only alleviate that burden, to discharge which,

very slight evidence may suffice.

* * *

37. ‘For weighing evidence and drawing inferences from it’,

said Birch, J. in R. v. Madhub Chander [(1873) 21 WR Cr 13]

(WR Cr at p. 19)‘there can be no canon. Each case presents its

own peculiarities and in each common sense and shrewdness

must be brought to bear upon the facts elicited’.”

*** *** ***

87. In that case, the Court also referred to the following

observations in Miller v. Minister of Pensions [(1947) 2 All ER 372

: 177 LT 536] by Lord Denning, J.

“That degree is well settled. It need not reach certainty, but it

must carry a high degree of probability. Proof beyond

reasonable doubt does not mean proof beyond the shadow of

a doubt. The law would fail to protect the community if it

admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to leave only a

remote possibility in his favour which can be dismissed with

the sentence ‘of course it is possible, but not in the least

probable,’ the case is proved beyond reasonable doubt'.”

88. It is true that under our existing jurisprudence in criminal

matter, we have to proceed with presumption of innocence, but at

the same time, that presumption is to be judged on the basis of

conceptions of a reasonable prudent man. Smelling doubts for the

sake of giving benefit of doubt is not the law of the land. In such

type of terrorist activities if arms and ammunitions are recovered at

the instance of or on disclosure by the accused, it can be stated that

presumption of innocence would not thereafter exist and it would

be for the accused to explain its possession or discovery or

recovery and would depend upon facts of each case which are to be

appreciated on the scales of common sense of a prudent man

possessing capacity to “separate the chaff from grain”. In such

cases, as stated by Lord Denning, J., law would fail to protect the

community if it admitted fanciful possibilities to deflect the course

of justice. If it is established on record that A-20 was found in the

company of A-1 and A-2 at Aligarh and that at Bombay also he had

introduced himself as a friend of A-1 and A-3 to PW 87, who is his

childhood friend, then it would be reasonable to infer that he was

co-conspirator and assisting A-1 and A-2, as stated in his

confessional statement.”

(Emphasis supplied)

33. In Ajay Aggarwal v. Union of India and Others16

, the role played by

various accused in successive stages of conspiracy and to what extent liability for

the acts committed by other members of the conspiracy could be fastened on the

co-conspirators was considered by this Court. The following observations are

noteworthy:

“24. Thus, an agreement between two or more persons to do an

illegal act or legal acts by illegal means is criminal conspiracy. If

the agreement is not an agreement to commit an offence, it does not

amount to conspiracy unless it is followed up by an overt act done

by one or more persons in furtherance of the agreement. The

offence is complete as soon as there is meeting of minds and unity

of purpose between the conspirators to do that illegal act or legal

act by illegal means. Conspiracy itself is a substantive offence and

is distinct from the offence to commit which the conspiracy is

entered into. It is undoubted that the general conspiracy is distinct

from number of separate offences committed while executing the

offence of conspiracy. Each act constitutes separate offence

punishable, independent of the conspiracy. The law had developed

several or different models or technics to broach the scope of

conspiracy. One such model is that of a chain, where each party

16 1993 (3) SCC 609

performs even without knowledge of the other a role that aids

succeeding parties in accomplishing the criminal objectives of the

conspiracy. An illustration of a single conspiracy, its parts bound

together as links in a chain, is the process of procuring and

distributing narcotics or an illegal foreign drug for sale in different

parts of the globe. In such a case, smugglers, middlemen and

retailers are privies to a single conspiracy to smuggle and distribute

narcotics. The smugglers knew that the middlemen must sell to

retailers; and the retailers knew that the middlemen must buy of

importers of someone or another. Thus the conspirators at one end

of the chain knew that the unlawful business would not, and could

not, stop with their buyers; and those at the other end knew that it

had not begun with their settlers. The accused embarked upon a

venture in all parts of which each was a participant and an abettor

in the sense that, the success of the part with which he was

immediately concerned, was dependent upon the success of the

whole. It should also be considered as a spoke in the hub. There is a

rim to bind all the spokes together in a single conspiracy. It is not

material that a rim is found only when there is proof that each

spoke was aware of one another's existence but that all promoted in

furtherance of some single illegal objective. The traditional concept

of single agreement can also accommodate the situation where a

well-defined group conspires to commit multiple crimes; so long as

all these crimes are the objects of the same agreement or

continuous conspiratorial relationship, and the conspiracy

continues to subsist though it was entered in the first instance. Take

for instance that three persons hatched a conspiracy in country A to

kill D in country B with explosive substance. As far as conspiracy

is concerned, it is complete in country A. One of them pursuant

thereto carried the explosive substance and hands it over to third

one in the country B who implants at a place where D frequents and

got exploded with remote control. D may be killed or escape or

may be diffused. The conspiracy continues till it is executed in

country B or frustrated. Therefore, it is a continuing act and all are

liable for conspiracy in country B though first two are liable to

murder with aid of Section 120-B and the last one is liable under

Section 302 or 307 IPC, as the case may be. Conspiracy may be

considered to be a march under a banner and a person may join or

drop out in the march without the necessity of the change in the

text on the banner. In the comity of International Law, in these

days, committing offences on international scale is a common

feature. The offence of conspiracy would be a useful weapon and

there would exist no conflict in municipal laws and the doctrine

of autrefois convict or acquit would extend to such offences. The

comity of nations are duty-bound to apprehend the conspirators as

soon as they set their feet on the country's territorial limits and nip

the offence in the bud.

25. A conspiracy thus, is a continuing offence and continues to

subsist and committed wherever one of the conspirators does an act

or series of acts. So long as its performance continues, it is a

continuing offence till it is executed or rescinded or frustrated by

choice or necessity. A crime is complete as soon as the agreement is

made, but it is not a thing of the moment. It does not end with the

making of the agreement. It will continue so long as there are two

or more parties to it intending to carry into effect the design. Its

continuance is a threat to the society against which it was aimed at

and would be dealt with as soon as that jurisdiction can properly

claim the power to do so. The conspiracy designed or agreed

abroad will have the same effect as in India, when part of the acts,

pursuant to the agreement are agreed to be finalised or done,

attempted or even frustrated and vice versa.”

(Emphasis supplied)

34. If the facts on record are considered, it emerges:-

a) On 10.12.2003, when a meeting was organised at the house of Firoz at

Chintamani, it was attended by A-1, A-2, A-4 and A-6 along with other

members including some of the Prosecution witnesses.

b) The minutes of the meeting, as set out in paragraph 17 of the decision

of the Trial Court, disclosed the intent and the objective with which the

materials, such as guns and bombs were to be procured or collected.

c) The signatures appended below the minutes were proved by PW-67,

Syed Asgar Imam, Hand Writing Expert.

d) The presence of A-1 in Chintamani on the day in question was

completely established. His presence assumes significance as he was

not a local person.

e) 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.

f) The intent and objective disclosed from the minutes of the meeting was

carried forward in the subsequent meetings.

g) 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.

h) 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.

35. We must, at this stage, deal with three submissions advanced on behalf of

A-1.

A) 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.

As discussed above, the presence of A-1 in Chintamani Town 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.

The submission is, therefore, rejected.

B) The next submission was with regard to 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.

The submission, therefore, calls for rejection.

C) It was further 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 PW-67, the

handwriting expert, at Exh.P-239 (page 194 of the convenience

compilation) and about the meeting at Chintamani and that A-1 had gone

to Chintamani (Page 197 of the convenience compilation) 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

Chintamani and that A-1 had gone to Chintamani were thus put to the

Accused. The instant submission, therefore, does not merit acceptance.

36. The next question to be considered in light of the facts established on

record is about the nature of offence committed by the Accused.

Relying on the decision of the Division Bench of the High Court of Patna

in Mir Hasan Khan vs. State17, which was noted by a Bench of two Judges of

this Court in Navjot Sandhu11

, it was submitted on behalf of the Accused that the

material on record did not fulfil the requirement of what would constitute

“waging of war” and consequently there could be no conviction uner Section

121-A of the IPC.

The relevant portion from the decision in Navjot Sandhu11 is:-

269. The decision of a Division Bench of the Patna High Court in

Mir Hasan Khan v. State20 is illustrative of what acts do not

constitute waging of war. That was a case in which there was a

mutiny among certain sections of the police forces on account of

the indignation aroused by the punishment given to one of their

colleagues. The conviction under Section 121 IPC was mainly

17 *AIR 1951 Patna 60 = 1951 Cr.L.J. 462.

* The decision in AIR 1951 Patna 60 = 1951 Cr.L.J.462 is reported as Mir Hasan Khan

v. State. The same decision is reported in 1951 Cr.LJ 462 as Ramanand v. State. In some of the

subsequent judgments it is either referred to as Mir Hasan Khan v. State or as Ramanand v.

State.

based on the fact that the accused were among those who took

possession of the armoury and also took part in the resistance

which was put up to the troops. The conviction was set aside and

the following pertinent observations were made by Shearer, J.:

(AIR p. 63)

“The expression ‘waging war’ means and can, I think,

only mean ‘waging war in the manner usual in war’.

In other words, in order to support a conviction on

such a charge, it is not enough to show that the

persons charged have contrived to obtain possession

of an armoury and have, when called upon to

surrender it, used the rifles and ammunition so

obtained against the King’s troops. It must also be

shown that the seizure of the armoury was part and

parcel of a planned operation and that their intention

in resisting the troops of the King was to overwhelm

and defeat these troops and then to go on and crush

any further opposition with which they might meet

until either the leaders of the movement succeeded in

obtaining possession of the machinery of Government

or until those in possession of it yielded to the

demands of their leaders.”

270. Support was drawn from the Digest of Criminal Law by Sir

James Stephens. In the Digest, one of the meanings given to the

expression to levy war is: “Attacking in the manner usual in war

(by sic) the King himself or his military forces, acting as such by

his orders, in the execution of their duty.” It was concluded “it is, I

think, quite impossible to say that any of these appellants waged

war in the sense in which that expression, as it occurs in Section

121, Penal Code, was used”. “The appellants or some of them were

in possession of the armoury at Gaya for several days and it is

perfectly clear that they never intended to use it as a base for

further operations.”

271. The next question is whether the daredevil and horrendous

acts perpetrated by the slain terrorists pursuant to the conspiracy,

amount to waging or attempting to wage war punishable under

Section 121 IPC and whether the conspirators are liable to be

punished under Section 121 or 121-A or both.

272. Sections 121 and 121-A occur in the chapter “Offences against

the State”. The public peace is disturbed and the normal channels

of the Government are disrupted by such offences which are aimed

at subverting the authority of the Government or paralysing the

constitutional machinery. The expression “war” preceded by the

verb “wages” admits of many shades of meaning and defies a

definition with exactitude though it appeared to be an unambiguous

phraseology to the Indian Law Commissioners who examined the

draft Penal Code in 1847. The Law Commissioners observed:

“We conceive the term ‘wages war against the

Government’ naturally to import a person arraying

himself in defiance of the Government in like manner

and by like means as a foreign enemy would do, and

it seems to us, we presume it did to the authors of the

Code that any definition of the term so unambiguous

would be superfluous.”

273. The expression “Government of India” was substituted for the

expression “Queen” by the Adaptation of Laws Order of 1950.

Section 121 now reads—

“121. Whoever wages war against the Government of

India, or attempts to wage such war, or abets the

waging of such war, shall be punished with death, or

imprisonment for life, and shall also be liable to fine.”

274. The conspiracy to commit offences punishable under Section

121 attracts punishment under Section 121-A and the maximum

sentence could be imprisonment for life. The other limb of Section

121-A is the conspiracy to overawe by means of criminal force or

the show of criminal force, the Central Government or any State

Government. The Explanation to Section 121-A clarifies that it is

not necessary that any act or illegal omission should take place

pursuant to the conspiracy, in order to constitute the said offence.

275. War, terrorism and violent acts to overawe the established

Government have many things in common. It is not too easy to

distinguish them, but one thing is certain, the concept of war

embedded in Section 121 is not to be understood in the

international law sense of inter-country war involving military

operations by and between two or more hostile countries. Section

121 is not meant to punish prisoners of war of a belligerent nation.

Apart from the legislative history of the provision and the

understanding of the expression by various High Courts during the

pre-independence days, the Illustration to Section 121 itself makes

it clear that “war” contemplated by Section 121 is not conventional

warfare between two nations. Organising or joining an insurrection

against the Government of India is also a form of war.

“Insurrection” as defined in dictionaries and as commonly

understood connotes a violent uprising by a group directed against

the Government in power or the civil authorities. “Rebellion,

revolution and civil war” are progressive stages in the development

of civil unrest the most rudimentary form of which is “insurrection”

— vide Pan American World Air Inc. v. Aetna Cas & Sur Co.18 (FR

2d at p. 1017). An act of insurgency is different from belligerency.

It needs to be clarified that insurrection is only illustrative of the

expression “war” and it is seen from the old English authorities

referred to supra that it would cover situations analogous to

insurrection if they tend to undermine the authority of the Ruler or

the Government.

276. It has been aptly said by Sir J.F. Stephen:

“Unlawful assemblies, riots, insurrections, rebellions,

levying of war are offences which run into each other

and not capable of being marked off by perfectly

definite boundaries. All of them have in common one

feature, namely, that the normal tranquillity of a

civilised society is, in each of the cases mentioned,

disturbed either by actual force or at least by the show

and threat of it.”

277. To this list has to be added “terrorist acts” which are so

conspicuous now-a-days. Though every terrorist act does not

amount to waging war, certain terrorist acts can also constitute the

offence of waging war and there is no dichotomy between the two.

Terrorist acts can manifest themselves into acts of war. According

to the learned Senior Counsel for the State, terrorist acts prompted

by an intention to strike at the sovereign authority of the

State/Government, tantamount to waging war irrespective of the

number involved or the force employed.

278. It is seen that the first limb of Section 3(1) of POTA—

“with intent to threaten the unity, integrity, security or

sovereignty of India or to strike terror in the people or

any section of the people does any act or thing by

using bombs, dynamite or other explosive substances

or inflammable substances or firearms or other lethal

weapons or poisons or noxious gases or other

chemicals or by any other substances (whether

biological or otherwise) of a hazardous nature or by

any other means whatsoever”

and the acts of waging war have overlapping features. However,

the degree of animus or intent and the magnitude of the acts done

or attempted to be done would assume some relevance in order to

consider whether the terrorist acts give rise to a state of war. Yet,

the demarcating line is by no means clear, much less transparent. It

is often a difference in degree. The distinction gets thinner if a

18 505 FR 2D 989 (2ND Cir, 1974)

comparison is made of terrorist acts with the acts aimed at

overawing the Government by means of criminal force. Conspiracy

to commit the latter offence is covered by Section 121-A.

279. It needs to be noticed that even in the international law sphere,

there is no standard definition of war. Prof. L. Oppenheim in his

well-known treatise on international law has given a definition

marked by brevity and choice of words. The learned author said:

“War is a contention between two or more States through their

armed forces, for the purpose of overpowering each other and

imposing such conditions of peace as the victor pleases.” Yoram

Dinstein, an expert in international law field analysed the said

definition in the following words:

“There are four major constituent elements in

Oppenheim’s view of war: (i) there has to be a

contention between at least two States, (ii) the use of

the armed forces of those States is required, (iii) the

purpose must be overpowering the enemy (as well as

the imposition of peace on the victor’s terms); and it

may be implied, particularly from the words ‘each

other’, and (iv) both parties are expected to have

symmetrical, although diametrically opposed, goals.”

The learned author commented that Oppenheim was entirely right

in excluding civil wars from his definition. Mr Dinstein attempted

the definition of “war” in the following terms:

“War is a hostile interaction between two or more

States, either in a technical or in a material sense. War

in the technical sense is a formal status produced by a

declaration of war. War in the material sense is

generated by actual use of armed force, which must

be comprehensive on the part of at least one party to

the conflict.”

280. In international law, we have the allied concepts of undeclared

war, limited war, warlike situation — the nuances of which it is not

necessary to unravel.

281. There is no doubt that the offence of waging war was inserted

in the Penal Code to accord with the concept of levying war in the

English Statutes of treason, the first of which dates back to 1351

AD. It has been said so in almost all the Indian High Courts’

decisions of the pre-independence days starting with Aung Hla v.

Emperor19. In Nazir Khan case10 this Court said so in specific terms

in para 35 and extensively quoted from the passages in old English

19 AIR 1931 Rang 235: ILR 9 Rang 404 (SB)

cases. Sir Michael Foster’s discourses on treason and the passages

from the decisions of the High Courts referred to therein are also

found in Ratanlal’s Law of Crimes. We should, therefore,

understand the expression “wages war” occurring in Section 121

broadly in the same sense in which it was understood in England

while dealing with the corresponding expression in the Treason

Statute. However, we have to view the expression with the eyes of

the people of free India and we must modulate and restrict the

scope of observations too broadly made in the vintage decisions so

as to be in keeping with the democratic spirit and the contemporary

conditions associated with the working of our democracy. The oftrepeated phrase “to attain the object of general public nature”

coined by Mansfield, L.C.J. and reiterated in various English and

Indian decisions should not be unduly elongated in the present day

context.

282. On the analysis of the various passages found in the cases and

commentaries referred to above, what are the highlights we come

across? The most important is the intention or purpose behind the

defiance or rising against the Government. As said by Foster, “The

true criterion is quo animo did the parties assemble?” In other

words the intention and purpose of the warlike operations directed

against the governmental machinery is an important criterion. If the

object and purpose is to strike at the sovereign authority of the

Ruler or the Government to achieve a public and general purpose in

contradistinction to a private and a particular purpose, that is an

important indicia of waging war. Of course, the purpose must be

intended to be achieved by use of force and arms and by defiance

of government troops or armed personnel deployed to maintain

public tranquillity. Though the modus operandi of preparing for the

offensive act against the Government may be quite akin to the

preparation in a regular war, it is often said that the number of

force, the manner in which they are arrayed, armed or equipped is

immaterial. Even a limited number of persons who carry powerful

explosives and missiles without regard to their own safety can

cause more devastating damage than a large group of persons

armed with ordinary weapons or firearms. Then, the other settled

proposition is that there need not be the pomp and pageantry

usually associated with war such as the offenders forming

themselves in battle line and arraying in a warlike manner. Even a

stealthy operation to overwhelm the armed or other personnel

deployed by the Government and to attain a commanding position

by which terms could be dictated to the Government might very

well be an act of waging war.

283. While these are the acceptable criteria of waging war, we must

dissociate ourselves from the old English and Indian authorities to

the extent that they lay down a too general test of attainment of an

object of general public nature or a political object. We have

already expressed reservations in adopting this test in its literal

sense and construing it in a manner out of tune with the present

day. The court must be cautious in adopting an approach which has

the effect of bringing within the fold of Section 121 all acts of

lawless and violent acts resulting in destruction of public

properties, etc., and all acts of violent resistance to the armed

personnel to achieve certain political objectives. The moment it is

found that the object sought to be attained is of a general public

nature or has a political hue, the offensive violent acts targeted

against the armed forces and public officials should not be branded

as acts of waging war. The expression “waging war” should not be

stretched too far to hold that all the acts of disrupting public order

and peace irrespective of their magnitude and repercussions could

be reckoned as acts of waging war against the Government. A

balanced and realistic approach is called for in construing the

expression “waging war” irrespective of how it was viewed in the

long long past. An organised movement attended with violence and

attacks against the public officials and armed forces while agitating

for the repeal of an unpopular law or for preventing burdensome

taxes were viewed as acts of treason in the form of levying war. We

doubt whether such construction is in tune with the modern day

perspectives and standards. Another aspect on which a clarification

is called for is in regard to the observation made in the old

decisions that “neither the number engaged, nor the force

employed, nor the species of weapons with which they may be

armed” is really material to prove the offence of levying/waging

war. This was said by Lord President Hope in R. v. Hardie20 in

1820 and the same statement finds its echo in many other English

cases and in the case of Maganlal Radhakishan v. Emperor21 (AIR

at p. 185). But, in our view, these are not irrelevant factors. They

will certainly help the court in forming an idea whether the

intention and design to wage war against the established

Government exists or the offence falls short of it. For instance, the

firepower or the devastating potential of the arms and explosives

that may be carried by a group of persons — may be large or small,

as in the present case, and the scale of violence that follows may at

times become useful indicators of the nature and dimension of the

action resorted to. These, coupled with the other factors, may give

rise to an inference of waging war.

284. The single most important factor which impels us to think that

this is a case of waging or attempting to wage war against the

Government of India is the target of attack chosen by the slain

terrorists and conspirators and the immediate objective sought to be

achieved thereby. The battlefront selected was the Parliament

House complex. The target chosen was Parliament — a symbol of

the sovereignty of the Indian republic. Comprised of peoples’

20 (1820) 1 State Tr NS 609, 610

21 AIR 1946 Nag 173: 47 Cri LJ 851

representatives, this supreme law-making body steers the destinies

of a vast multitude of Indian people. It is a constitutional repository

of sovereign power that collectively belongs to the people of India.

The executive Government through the Council of Ministers is

accountable to Parliament. Parliamentary democracy is a basic and

inalienable feature of the Constitution. Entering Parliament House

with sophisticated arms and powerful explosives with a view to lay

a siege to that building at a time when members of Parliament,

members of the Council of Ministers, high officials and dignitaries

of the Government of India gathered to transact parliamentary

business, with the obvious idea of imperilling their safety and

destabilising the functioning of the Government and in that process,

venturing to engage the security forces guarding Parliament in

armed combat, amounts by all reasonable perceptions of law and

common sense, to waging war against the Government. The whole

of this well-planned operation is to strike directly at the sovereign

authority and integrity of our Republic of which the Government of

India is an integral component. The attempted attack on Parliament

is an undoubted invasion of the sovereign attribute of the State

including the Government of India which is its alter ego. An attack

of this nature cannot be viewed on the same footing as a terrorist

attack on some public office building or an incident resulting in the

breach of public tranquillity. The deceased terrorists were roused

and impelled to action by a strong anti-Indian feeling as the

writings on the fake Home Ministry sticker found on the car (Ext.

PW-1/8) reveals. The huge and powerful explosives, sophisticated

arms and ammunition carried by the slain terrorists who were to

indulge in “fidayeen” operations with a definite purpose in view, is

a clear indicator of the grave danger in store for the inmates of the

House. The planned operations if executed, would have spelt

disaster for the whole nation. A warlike situation lingering for days

or weeks would have prevailed. Such offensive acts of

unimaginable description and devastation would have posed a

challenge to the Government and the democratic institutions for the

protection of which the Government of the day stands. To

underestimate it as a mere desperate act of a small group of persons

who were sure to meet death, is to ignore the obvious realities and

to stultify the wider connotation of the “expression of war” chosen

by the drafters of IPC. The target, the obvious objective which has

political and public dimensions and the modus operandi adopted by

the hard core “fidayeens” are all demonstrative of the intention of

launching a war against the Government of India. We need not

assess the chances of success of such an operation to judge the

nature of criminality. We are not impressed by the argument that

the five slain terrorists ought not to be “exalted” to the status of

warriors participating in a war. Nor do we endorse the argument of

the learned Senior Counsel Mr Sushil Kumar that in order to give

rise to the offence of waging war, the avowed purpose and design

of the offence should be to substitute another authority for the

Government of India. According to the learned counsel, the

deprivation of sovereignty should be the pervading aim of the

accused in order to bring the offence under Section 121 and that is

lacking in the present case. We find no force in this contention. The

undoubted objective and determination of the deceased terrorists

was to impinge on the sovereign authority of the nation and its

Government. Even if the conspired purpose and objective falls

short of installing some other authority or entity in the place of an

established Government, it does not in our view detract from the

offence of waging war. There is no warrant for such truncated

interpretation.

37. Before we deal with the submission, we may extract the relevant

provisions. Sections 121 and 121-A of the IPC are as under:-

“121. Waging, or attempting to wage war, or abetting waging of

war, against the Government of India.—Whoever, wages war

against the Government of India, or attempts to wage such war, or

abets the waging of such war, shall be punished with death,

or imprisonment for life and shall also be liable to fine.

Illustration: A joins an insurrection against the Government of

India. A has committed the offence defined in this section.

121A. Conspiracy to commit offences punishable by section

121.—Whoever within or without India conspires to commit any of

the offences punishable by section 121, or conspires to overawe, by

means of criminal force or the show of criminal force, the Central

Government or any State Government , shall be punished with

imprisonment for life, or with imprisonment of either description

which may extend to ten years, and shall also be liable to fine.

Explanation.—To constitute a conspiracy under this section, it is

not necessary that any act or illegal omission shall take place in

pursuance thereof.”

38. What constitutes an offence under Section 121 of the IPC is the waging of

war or attempt to wage war or abetting of waging of such war against the

Government of India. The expression “waging of war” was considered by this

Court in Navjot Sandhu11. Paragraph 34 of the decision of this Court in Nazir

Khan10 was also to the same effect. Said paragraph reads as under:-

“34. The expression “waging war” means and can only mean waging

war in the manner usual in war. In other words, in order to support a

conviction on such a charge it is not enough to show that the persons

charged have contrived to obtain possession of an armoury and have,

when called upon to surrender it, used the rifles and ammunition so

obtained against the government troops. It must also be shown that

the seizure of the armoury was part and parcel of a planned operation

and that their intention in resisting the troops of the Government was

to overwhelm and defeat these troops and then to go on and crush

any further opposition with which they might meet until either the

leaders of the movement succeeded in obtaining the possession of

the machinery of government or until those in possession of it

yielded to the demands of their leaders.”

39. Section 121-A of the IPC, however, deals with conspiracy to commit

offences punishable under Section 121 of the 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.

In Mir Hasan Khan v. State (or Ramanand v. State)

17, the Division Bench

of the Patna High Court brought out the distinction between both the limbs of

conspiracies dealt with in Section 121A, as under:

“The marginal note to section 121A is “conspiracy to commit

offences punishable by section 121”. This was a strictly accurate

description of the section which it was proposed to enact in the Bill

originally introduced in the Legislative Council. It is quite clear that

the conspiracies aimed at in the Bill were conspiracies either to wage

war against the King in the manner in which it is usual to wage war or

conspiracies to raise an insurrection with the object of subverting the

constitution. The section, however, as finally enacted brought within

its scope other conspiracies also and the marginal note is not a strictly

accurate description of what is contained in it. The words “conspires

to overawe by means of criminal force or the show of criminal force

the Central Government or any Provincial Government” clearly

embrace not merely a conspiracy to raise a general insurrection, but

also a conspiracy to overawe the Central Government or any

Provincial Government by the organization of a serious riot or a large

and tumultuous unlawful assembly. Possibly, in modifying the section

as it stood in the Bill, the Legislative Council had in mind the case of

Lord George Gordon22. Lord George Gordon put himself at the head

of a large mob which proceeded to the Houses of Parliament in order

to protest against the enactment of certain legislation. After having

made it protest, the mob dispersed, but certain members of it

proceeded to perpetrate outrages in different parts of the city of

London. Lord George Gordon was tried on a charge of high treason,

and was acquitted the reason apparently being that, while he had

intended to make a demonstration outside the House of Parliament, he

had not been a party to the disorders which resulted from it. Section

121A occurs in a chapter of the Penal Code which is headed “Offences

against the State” whereas the offence of conspiracy is contained in

the preceding chapter, Chapter VA which is headed “Criminal

Conspiracy”. The legislature in enacting section 121A clearly had in

mind the English Treason Felony Act of 1848 and I am very much

inclined to think that, in enacting it, it did not aim at conspiracies

other than conspiracies which had a political object, that is,

conspiracies to overthrow the existing constitution or conspiracies to

prevent the enactment of legislation which was considered to be

obnoxious or to compel the resignation of a member or member of the

Government who had become unpopular. As the section stands,

however, I am not prepared to say that in certain circumstances

persons who organize a strike among police men or certain other

public or municipal employees might not render themselves liable to

prosecution under it. Clearly, however, persons do not commit this

crime unless it was part and parcel of their plans to overawe the

Central or the Provincial Government by criminal force or show of

criminal force. The word “overawe” does not appear anywhere else in

the Penal Code except in this section and in another section in the

same chapter (section 124). In the Treason Felony Act,1848 which the

authors of section 121A appear to have had in mind, the words used

are:

“intimidate or overawe both Houses or either House of

Parliament”

and the words there must be read in conjunction with the words

immediately preceding them, which are

“in order by force or constraint to compel His Majesty to change

his measures or counsels”.

The word “overawe” clearly imports more than the creation of

apprehension or alarm or even perhaps fear. It appears to me to

connote the creation of a situation in which the members of the

Central or the Provincial Government feel themselves compelled to

22 21 State Trial 486

choose between wielding to force or exposing themselves or members

of the public to a very serious danger. It is not necessary that the

danger should be a danger of assassination or of bodily injury to

themselves. The danger might well be a danger to public property or

to the safety of members of the general public.

40. As the text of the relevant Section 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

of the IPC. The dictionary meaning of the expression “overawe” is to subdue or

inhibit with a sense of awe23. 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.

41. 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 of the IPC. As

the explanation to Section 121A of the 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

23 The Concise Oxford English Dictionary.

happened as a result of the conspiracy, the matter would still come within the

four corners of Section 121A of the IPC.

The conviction recorded against the accused under Section 121A of the

IPC does not therefore call for any interference.

42. We may now turn to the submission based on Section 120-B read with

Section 116 of the IPC. Section 120-B of the 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 of the IPC, the provision contained in Section

120-B of the IPC would have no application. The submission, therefore, merits

rejection.

43. The last submission was 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 of the IPC.

We have given serious consideration to this submission. 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 diary Exh. P-92, and

other materials on record, the High Court was right in enhancing the sentence

after accepting the appeal preferred by the State in that behalf.

44. In the circumstances, we do not find any merit in the appeals preferred by

the Accused and as such all the appeals are dismissed.

…………………………….J.

(UDAY UMESH LALIT)

…………………………….J.

(HEMANT GUPTA)

…………………………….J.

(S. RAVINDRA BHAT)

New Delhi,

July 11, 2022.

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