Patiala House Courts: Stating that the crimes for which the convict had been convicted were intended to strike at the heart of the idea of India and to forcefully secede J&K from the Union of India, Parveen Singh, ASJ-03, expressed that terror funding should be recognized as one of the gravest offences and has to be punished more severely.
Prsent matter was listed for deciding the quantum of sentence to be awarded to the convict Mohd. Yasin Malik, was convicted for the offences punishable under Sections 120B, 121, 121 A of Penal Code, 1860, Sections, 17, 18. 20 38 and 39 of UAPA.
In view of the Delhi High Court’s decision in Vishal Yadav v. State Govt of UP., Crl A 910 of 2008, socio economic report of the convict was called for.
As per the said report, convict owned a three-storey residential house in Srinagar where his mother and divorced sister alongwith her 2 sons used to reside. With respect to the social status of the convict he was acting as JKLF Chairman and was an influential person.
As per the jail conduct report of the convict, he had been satisfactory in the jail and no jail punishment was recorded against him. Further, with regard to his inclination towards reformation, his behaviour towards everyone remained cordial and peaceful and he seemed to be inclined toward reformation.
Analysis and Decision
Court expressed that it is a well settled position of law that while awarding sentence the Court has to consider aggravating and mitigating circumstances in order to arrive at a just sentence to be awarded to the convict.
Further, it is also well settled that there is no straight jacket formula for awarding sentence based upon any individual theory of punishment and that each case must be decided on its own facts and circumstances.
Twin objective of sentencing is deterrence and correction.
“The crimes for which convict has been convicted are of very serious nature. These crimes were intended to strike at the heart of the idea of India and intended to forcefully secede J&K from UOI. The crime becomes more serious as it was committed with the assistance of foreign powers and designated terrorists. The seriousness of crime is further increased by the fact that it was committed behind the smoke screen of an alleged peaceful political movement.”
Bench elaborated stating that admittedly the convict had been engaged in violent terrorist activities prior to 1994.
In Court’s opinion, there was no reformation of the said convict and adding to this, Court stated that he never expressed any regret for the violence he had committed prior to the year 1994.
Further, it was notice that when he claimed to have given up the path of violence, Government of India took it upon its face value and gave him an opportunity to reform and in good faith tried to engage in a meaningful dialogue. However, the convict did not desist from violence. Rather, betraying the good intentions of the Government he took a different path to orchestrate violence in the guise of political struggle.
“Convict has claimed that he had followed Gandhian principle of non-violence and was spear heading a peaceful non violent struggle.”
Bench observed that, the convict cannot invoke the Mahatma and claim to be his follower because in Mahatma Gandhi’s principles, there was no place for violence, howsoever high the objective might be.
“It only took one small incident of violence at Chauri Chaura for the Mahatma to call off the entire non-cooperation movement but the convict despite large scale of violence engulfing the valley neither condemned the violence nor withdrew his calendar of protest which had led to the said violence.”
In view of the above discussion, Convict was sentenced as under:
- Under Section 120B IPC:
Convict sentenced to rigorous imprisonment 10 years, fine of Rs 10,000, in default of payment simple imprisonment for a period of 6 months.
- Under Section 121 IPC:
Merely because the offence provides for capital punishment, the same cannot be handed over to the convict in a routine manner or as a matter of rule.
Death penalty should be awarded in exceptional cases where the crime by its nature shocks the collective consciousness of the society and has been committed with unmatched cruelty and in a gruesome manner.
In the instant case, the manner in which the crime was committed was in the form of conspiracy whereby there was an attempted insurrection by instigating, stone pelting and arson and a very large scale violence led to shut of the government machinery and ultimate secession of J&K from UOI.
However, the Court concluded that the crime in question would fail the test of rarest of rare cases as laid down by the Supreme Court.
- Under Section 121A IPC:
Sentenced to rigorous imprisonment of 10 years and fine of Rs 10,000.
- Under Section 13 UAPA read with Section 120B IPC:
Rigorous imprisonment of 5 years and a fine of Rs 5,000.
- Under Section 15 UAPA as punishable under Section 16 UAPA read with Section 120B IPC:
Rigorous imprisonment of 10 years and a fine of Rs 10,000.
- Under Section 17 UAPA:
“Financing is the backbone of any operation including terrorist activities.”
Stating that terror funding is one of the gravest offences, Court noted in the present case that, the order on charge specifies how funds were raised and how they were received from Pakistani establishment as well as designated terrorist Hafeez Saeed and through other hawala operations. The said funds were used to create unrest where under the guise of public protests, paid terror activities of stone pelting and arson at mass scale were committed. Had there been no such funding for the convict to conspire to commit the said acts and to pay the perpetrators, the violence and mayhem at this scale could not have been committed. Therefore, in Court’s opinion, terror funding should be recognized as one of the gravest offences and has to be punished more severely.
Hence, convict was sentenced to life imprisonment and a fine of Rs 10,00,000 was imposed and on default on payment, a simple imprisonment for a period of 2 and a half years.
- Under Section 18 UAPA:
Sentenced to rigorous imprisonment 10 years. A fine of Rs. 10,000/.
- Under Section 20 UAPA:
Sentenced to rigorous imprisonment 10 years and fine of Rs 10,000.
- Under Section 38 UAPA:
Sentenced to imprisonment 5 years and fine of Rs 5,000.
- Under Section 39 UAPA:
Sentenced to rigorous imprisonment of 5 years and fine pf Rs 5,000.
All the above-stated sentences shall run concurrently and benefit of Section 428 CrPC shall be given to the convict. [State v. Mohd Yasin Malik, RC-10/2017/NIA/DLI, decided on 25-5-2022]