Patiala House Courts, Delhi
Case BriefsDistrict Court

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, the 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 of 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, 2022 SCC OnLine Dis Crt (Del) 21, decided on 25-5-2022]

Case BriefsHigh Courts

Karnataka High Court: K. Natarajan, J., allowed the petition and quashed the impugned order.

The facts of the case are such that accused 1 i.e. Greenbuds Agro Farms Limited Company and accused 2 to 5 are the Managing Directors and Directors of the said Company who are alleged to have collected investments from the general public and cheated the public. The individual investors have filed complaints before different Police Stations consequent to which jurisdictional Assistant Commissioner was appointed as Competent Authority for the purpose of taking action against the accused under Section 5 of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (hereinafter referred to as ‘Act’). Accordingly, investigation was done and a common charge-sheet was filed by the Police Inspector, Financial and Vigilance Unit, C.I.D., before the Trial Court. The Trial Court, by its impugned order, rejected the charge-sheet filed under the Act on the ground that the Police Inspector is not the Competent Officer to file the report, and the accused were discharged for the offence punishable under Section 9 of the Act.  Aggrieved by this, the State by C.I.D. filed the instant petition under Section 482 of the Code of Criminal Procedure Code, 1973 (for short, ‘Cr.P.C.’).

Counsel for the State submitted that as per Section 4 of the CrPC, the Special Court established under the Act is having power to try the offences punishable under the IPC as well as the offences punishable under the Special Law, but the Trial Court misread Section 5 of the Act and committed error in discharging the accused which is illegal.

The Court relied on judgment State v. Khimji Bhai Jadeja (Crl. Ref. No.1 of 2014 dated 8-7-2019) wherein it was held that

…“76. From Chapter XII of the Cr.P.C., it is evident that upon disclosure of information in relation to commission of a cognizable offence, the police is bound to register the FIR. The registration of FIR sets into motion the process of investigation. The same culminates into the filing of the final report by the police officer before the Magistrate. Thus, in respect of every FIR, there would be a separate final report and, there could be, further report(s) in terms of Section 173(8)…

The Court observed that the offences which are similar in nature committed by the same accused within twelve months can be tried together by framing a common charge as per Section 219 of the CrPC, but the question of filing common charge-sheet in multiple crimes or complaints is impermissible.

The Court also observed that though the Trial Court rightly refused to accept the charge-sheet, but committed error in discharging the accused. As per Section 4 of Criminal Procedure Code i.e. CrPC, once the Special Court is established, the question of discharging the accused of the reasons that the charge-sheet is filed by incompetent Investigating Officer does not arise.

The Court further observed that the State-C.I.D. Police have no authority to file common charge-sheet in different complaints. However, the Investigating Officer has to file separate chargesheet against each crime registered by the Police on individual complaint. Thereafter, the Special Court shall take cognizance of the offences both punishable under the IPC and the Special Act by following the Cr.P.C. and dispose of the matter in accordance with law.

The Court thus held “the Trial Court committed error in rejecting the charge-sheet on the ground that the Investigating Officer is not the Competent Authority to file the charge-sheet and wrongly discharged the accused for the offence punishable under Section 9 of the Act.”[State of Karnataka v. Greenbuds Agro Form Limited Company, 2021 SCC OnLine Kar 12475, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for Petitioner: Mr. Sheelavanth V.M.

Counsel for Respondents: Mr. B.L. Ravidnranath and Mr. Raghavendra N.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., while addressing the instant matter observed that,

“When a citizen comes to the High Court alleging infringement of his right to life, liberty and privacy by opening a rowdy sheet, the Court can look into whether the decision of the police to have surveillance on the petitioner is justified and supported by the material on a record or it was initiated only to harass and humiliate the individual.

It is to be noted that mere involvement in a crime may not per se require surveillance on that person.”

Kasula Nandam is said to be the protected tenant and in possession of land to an extent, Acs.6.32 guntas in Sy. No. 170 of Kapra village, having obtained occupancy rights certificate in the year 1979.

The petitioner who used to run a cloth shop was appointed as the General Power of Attorney holder to look after the above-stated property. Further, he stated that there are several bogus claimants over the said land.

Petitioner added that several false claims on the land were made by lodging complaints against the petitioner over a period of time.

On the ground of registration of crimes, and pending trial before the Criminal Courts, rowdy sheet is opened and in the guise of the opening of the rowdy sheet, respondent-Police are keeping close surveillance on the movements of the petitioner, affecting his right, liberty and privacy.

Respondent-Police alleged that there is ample evidence alleging that the petitioner has been grabbing private and Government Lands by way of illegal means, that due to fear of the petitioner, no one is coming forward to lodge a complaint.

Hence, in view of the public interest and to safeguard the residents of the area, where the petitioner is residing, and to curb his unlawful activities, the rowdy sheet is opened.

Whether the Police are justified in opening the rowdy sheet against the petitioner?

Enforcement of law and order is the most important state function. Enforcement of law and order includes taking all preventive measures to ensure that no untoward incident happens and peace and tranquillity is not affected. To prevent a breach of peace and tranquillity, it is permissible for the police to take all measures possible.

It was noted that for the purpose of keeping surveillance, Police Standing Order 601 enables opening a Rowdy Sheet in the concerned police station. After the opening of the rowdy sheet, close surveillance is enforced on the concerned person

Court observed that,

Opening of Rowdy Sheet and thereon keeping close surveillance on the person would certainly infringe upon the right to life, liberty and privacy of the individual concerned.

A person is entitled to lead his life with dignity and self-respect and does not want an outsider to intrude in his private affairs and to probe into his movements.

Thus, there are two competing interests in preventive measures. On the one side is right guaranteed by Article 21 of the Constitution of India, which is sacrosanct and on the other side is the primacy of enforcement of law and order, maintenance of peace and tranquillity, which is the primary responsibility of the State through its police force. Compelling public interest may require intrusion into the privacy of a person.

Bench further observed that the principles governing the opening of Rowdy Sheet vis-a-vis the right to life and liberty, it is necessary to consider whether by opening rowdy sheet against the petitioner, respondent police have violated the mandate of Article 21 of the Constitution of India and whether their decision is supported by reasons warranting requirement to open rowdy sheet.

Crimes that the petitioner was involved in included Sections 447 IPC (criminal trespass); 427 IPC (Mischief); 506 IPC (criminal intimidation); 420 IPC (cheating and dishonestly inducing delivery of property); 468 IPC (forgery for purpose of cheating); 471 IPC (using as genuine a forged document); 452 IPC (House trespass after preparation for hurt, assault or wrongful restraint); 120-B IPC (criminal conspiracy) and 34 IPC (Act done by several persons in furtherance of common intention).

The above-stated would show that the petitioner was in the habit of being involved in crimes, disturbing peace and tranquillity.

Hence, the Court held that,

Having regard to the crimes registered against the petitioner and that he was facing trial in five cases, it cannot be said that the Police action in opening rowdy sheet amounts to abuse or misuse of power and authority, and cannot be said as one made in the illegal exercise of power and without application of mind.

While dismissing the petition, Bench made it clear that while keeping surveillance, Police shall ensure that it is minimal, not obtrusive and not to impinge upon his privacy.[M. Laxman v. State of Telangana,  2020 SCC OnLine TS 1600, decided on 03-12-2020]

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and B. Vijaysen Reddy, J., while addressing the present petition observed the following:

“The preventive detention laws cannot be invoked as an easy way method bypassing the ordinary law and if a detention order is passed, it is very much necessary for the detaining authority to apply its mind and arrive at a conclusion that ordinary law is not capable of acting deterrent against the detenu and thus, detention order needs to be passed.”

Commissioner of Police had passed a detention order against Mohd. Nawaz in the exercise of powers under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Amendment Act No.13 of 2018) which has been challenged as being illegal and arbitrary.

Counsel for the petitioner was Pendya Swathi and T. Srikanth Reddy, Government Pleader for Home for the respondents.

It was noted that the detaining authority considered five cases as grounds for his detention.

Courts concerned had granted conditional bails in all the 5 five cases wherein the bail petitions by the detenu were moved.

Prosecution opposed the grant of bail even after that the Courts concerned granted the detenu conditional bails.

If the detaining authority feels that even after strongly opposing the bail, the concerned Courts have granted bail, it is always left open for the authorities to move an application for cancellation of bail either before the same Court or higher Court.

Further, the Court stated that the State cannot take advantage of its own lapses, whereby, on one hand, the State does not effectively oppose the bail application or seeks cancellation of bail and on the other hand, the State finds an easy way method to pass detention order by invoking preventive detention laws.

Supreme Court’s decision in Sudhir Kumar Saha v. Commr. of Police, Calcutta, (1970) 1 SCC 149, it was observed that,

“…The power to detain is an exceptional power to be used under exceptional circumstances. It is wrong to consider the same, as the executive appears to have done in the present case, that it is a convenient substitute for the ordinary process of law.”

Bench also observed that an order of detention has to be resorted to as an extreme and last step only when attempts made by the authorities to deal with and prosecute the detenu under ordinary law do not yield results.

Court stated that the crimes mentioned against the detenu relate to specific individuals/victims and come within the ambit of maintenance of law and order and not public order.

Hence the impugned detention order is unsustainable and was therefore set aside.[Mohd. Jaffar v. State of Telangana, 2020 SCC OnLine TS 1030, decided on 03-09-2020]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given ex-post facto approval on an Agreement on Security Cooperation between the Government of the Republic of India and the Government of the Kingdom of Saudi Arabia that was signed on 29-10-2019 during the visit of Hon’ble Prime Minister to Saudi Arabia.

The Agreement aims to improve the effectiveness of both countries in the prevention and suppression of crimes including crime relating to terrorism and its financing and organized crime and to establish a framework for enhancing cooperation between the officials of intelligence and law-enforcement agencies of the two countries, in line with national and international obligations.


Cabinet

[Press Release dt. 24-12-2019]

[Source: PIB]