On 3rd September 2022, the Supreme Court in a Division Bench comprising of Chief Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi observed that the acts of challenging the unity, integrity and sovereignty of India by acts of terrorism are taken as the most aggravating circumstances and the cumulative effect of the aggravating factors and the mitigating circumstances must be taken into account before the death sentence is awarded. (MOHD. ARIF @ ASHFAQ Vs. STATE (NCT OF DELHI)).
Facts of the Case:
According to the prosecution, on the night of 22.12.2000 some intruders entered the area where the Unit of 7 Rajputana Rifles of the Indian Army was stationed inside the Red Fort. Three Army Jawans lost their lives in the firing done by intruders. This led to the lodging of FIR No. 688/2000 registered with Kotwali Police Station, New Delhi in respect of offences punishable under Sections 302, 307, 186, 353, 120-B, 121, 121-A, 216 and 201 of the Indian Penal Code, 18602 read with Sections 25, 27, 54 and 59 of the Arms Act, 1959, Section 14 of the Foreigners Act, 1946, Sections 4 and 5 of the Explosive Substances Act, 1908 and Sections 420, 468, 471, 474 and 34, IPC.
The review petitioner was awarded death sentence by the Court of Additional Sessions Judge, Delhi in Sessions and same was subjected to confirmation of the High Court. Aggrieved by the same, a criminal writ petition was filed in the present court. The challenge was negated and the award of death sentence to the petitioner was affirmed, which resulted in filing the instant review petition. But the same were dismissed by the two Judge bench resulting into filing curative petitions which were also rejected vide order dated 23.01.2014. So, addressing the question where the review petitions had already stood rejected when the aforementioned decision was rendered by the Constitution Bench of this Court, could there be reopening of the matter and the review petition be reheard? in this backdrop, the instant review petition was listed for rehearing.
Contentions of the Petitioner:
The basic submission from the counsel for petitioner is about the admissibility of electronic record being Call Data Records (CDRs), CDR’s and CDR. It was submitted that “on the strength of the law declared by this Court in Anvar P.V. vs. P.K. Basheer & Ors., as affirmed by this Court in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors., certification under Section 65B of the Evidence Act would be a pre-requisite for admissibility of an electronic record such as CDRs; that there being total non-compliance of this mandatory requirement, the afore-stated CDR would be inadmissible and must be eschewed from consideration at every juncture. The entire fulcrum of the prosecution case rested on these CDRs and minus this evidence, there is hardly anything which could prove the identity and involvement of the petitioner in the crime in question.” The case of State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru was referred to address the issue of admissibility of call records without there being appropriate certificate under Section 65-B (4) of the Evidence Act.
Contentions of the Respondent:
The counsel for the respondent that “the scope of a review petition even in matters arising out of award of death sentence would be extremely limited. Normally in a criminal proceeding, review applications cannot be entertained except on the ground of error apparent on the face of the record. Further, the power given to this Court under Article 137 is wider and in an appropriate case can be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused that is not a sufficient ground for review.” Reliance was placed on the cases of Vikram Singh alias Vicky Walia & Anr. vs. State of Punjab & Anr., and Akshay Kumar Singh vs. State (NCT of Delhi)
Observations and Judgment of the Court:
The hon’ble court observed that “since the instant matter pertains to award of death sentence, this review petition must be considered in light of the decisions made by this Court in Anvar P.V.9 and Arjun Panditrao. It must therefore be observed that even after eschewing circumstances ‘h’ and ‘j’ which were directly attributable to the CDRs relied upon by the prosecution, the other circumstances on record do clearly spell out and prove beyond any doubt the involvement of the review petitioner in the crime in question. In our review jurisdiction, it will not be possible to enter into questions regarding admissibility of such disclosure statement on issues of fact.
The Written Submissions show that when there is challenge to the unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances. There is nothing on record which can be taken to be a mitigating circumstance in favour of the review petitioner. The suggestion that there is a possibility of retribution and rehabilitation, is not made out from and supported by any material on record. There was a direct attack on the unity, integrity and sovereignty of India, completely outweigh the factors which may even remotely be brought into consideration as mitigating circumstances on record.”
The cases of Anvar P.V., Tomaso Bruno & Anr. v. State of Uttar Pradesh, Sonu alias Amar v. State of Haryana, Shafi Mohammed v. State of Himachal Pradesh, Arjun Panditrao Khotkar and Vasanta Sampat Dupare vs. State of Maharashtra were referred by the court. Hence, the instant review petitions were dismissed by the hon’ble court.
Case: MOHD. ARIF @ ASHFAQ Vs. STATE (NCT OF DELHI)
Citation: Review Petition (Crl.) Nos. 286-287 Of 2012 In Criminal Appeal Nos. 98-99 Of 2009
Bench: Chief Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi
Date: November 3, 2022.
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