Delhi High Court
Mohd. Ashraf @ Mohd. Shakeer vs State on 26 May, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Delivered on: May 26, 2009
+ CRL.A.No.239/2004
MOHD. ASHRAF @ MOHD. SHAKEER ..... Appellant
Through: Ms. Rakhi Dubey, Advocate
versus
STATE ..... Respondent
Through: Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in
the Digest? Yes
PRADEEP NANDRAJOG, J. (ORAL)
1. We have gone through the record of the learned Trial
Judge.
2. From the record, it is apparent that the appellant moved
an application pleading guilty to the charges framed against
him. The said application was adjourned to enable the
appellant to re-consider his decision to plead guilty. The
matter was adjourned to 18.9.2003.
3. On 18.9.2003, the appellant was present along with his
counsel Mr.Riaz Mohd. In the presence of his counsel, the
appellant re-affirmed his decision to plead guilty.
4. The appellant informed the court, as recorded in the
order dated 18.9.2003, that he was a Pakistani national and
was misled into doing what he did and that he felt sorry for his
deeds.
5. Vide order dated 18.9.2003, the appellant was
accordingly convicted for the following offences:-
(a) Offence punishable under Section 3(3) and 3(5)
POTA
(b) Offence punishable under Section 25 of the Arms
Act read with Section 5 POTA.
(c) Offence punishable under Section 20 POTA.
(d) Offence punishable under Section 121-A and
Section 122 IPC.
(e) Offence punishable under Section 465 and 471 IPC.
(f) Offence punishable under Section 14 of the
Foreigners Act.
6. Vide order dated 15.10.2003, which order we find is
missing from the record of the learned Trial Judge, but certified
copy whereof has been filed along with the appeal, following
sentences were imposed upon the appellant:-
"(a) For the offences punishable under Section 3(3) and
Section 3(5) POTA; to undergo rigorous imprisonment for
8 years and to pay a fine in sum of Rs.15,000/- and in
default of payment of fine to undergo Rigorous
Imprisonment for one year and to undergo rigorous
imprisonment for 5 years and pay a fine in sum of
Rs.25,000/-, in default to undergo rigorous imprisonment
for one year, respectively.
(b) For the offence punishable under Section 20 POTA,
to undergo R.I. for 5 years and to pay a fine in sum of
Rs.10,000/-, in default of payment of fine to undergo RI
for 6 months.
(c) For the offence punishable under Section 25 of the
Arms Act read with Section 5 POTA, to undergo RI for 5
years and to pay a fine in sum of Rs. 5,000/-, in default of
payment of fine to undergo RI for 3 months.
(d) For the offence punishable under Section 121A IPC
to undergo imprisonment for 8 years and to pay a fine in
sum of Rs.25,000/-, in default of payment of fine, to
undergo RI for 1 year.
(e) For the offence punishable under Section 122 IPC,
to undergo RI for 8 years and pay a fine in sum of
Rs.25,000/-, in default of payment of fine to undergo RI
for 1 year.
(f) For the offence punishable under Section 465 and
471 IPC, to undergo RI for two years and to pay a fine in
sum of Rs.5000/- for each offence and in default of
payment of fine, to undergo RI for 3 months.
(g) For the offence punishable under Section 14 of
Foreigners Act, to undergo RI for 2 years and to pay a
fine in sum of Rs. 10,000/-, in default , to undergo RI for 6
months.
(h) For the offence punishable under section 120B IPC,
to undergo RI for 10 years and pay a fine in sum of
Rs. 25,000/- in default to undergo RI for 2 years."
7. Vide instant appeal, the appellant has challenged the
order of sentence dated 15.10.2003. It is urged that the
appellant has expressed remorse for his conduct and at the
first instance has pleaded guilty. Thus, it is urged that the
mitigating circumstance i.e. the expression of remorse by the
appellant has to be taken into account and sentence tempered
accordingly. It is urged that for the commission of the
substantive offences in respect whereof the charge of
conspiracy was framed, the sentence imposed is of 8 years
rigorous imprisonment and thus it does not stand to reason as
to why for the charge of conspiracy relating to the said
substantive offences, the sentence imposed should be 10
years RI.
8. It is urged that as per the Code of Criminal Procedure, if
the fines are not paid, the relatable period of incarceration to
be undergone has to be undergone by the appellant and that
in relation to payment of fine, the sentences cannot run
concurrently. It is urged that the sum total of the fine
imposed upon the appellant is in the sum of Rs.1,45,000/- and
if the same is not paid, the imprisonment required to be
undergone would be 6 years and 6 months.
9. Learned Counsel for the State urges that the offence of
conspiracy is a substantive offence and therefore the learned
Trial Judge justify in imposing the sentence of Rigorous
Imprisonment for 10 years pertaining to the offence of
conspiracy. Learned Counsel urges that keeping in view the
magnitude of the offence for which the appellant was charged
of, namely to enter into conspiracy to commit terrorist acts
directed at the President of India and the noted cricketer
Sachin Tendulkar, sentences imposed are adequate. Learned
Counsel urges that the scourge of terrorism which has created
a fear psychosis in the society needs to be put down with a
heavy hand. Learned Counsel urges that the society‟s cry for
justice in the form of appropriate sentence has to be respected
because the crime of terrorism shocks the conscience of the
society.
10. Having considered the rival submissions, we but note
that prima facie it seems discriminatory and inappropriate to
impose a lesser sentence for a crime which has manifested
itself in the form of commission of the crime vis-a-vis the
conspiracy to commit the crime and impose a higher sentence
for the substantive offence of conspiracy.
11. We agree with the submissions made by the learned
counsel for the state that for offences relatable to terrorism,
no leniency in the imposition of sentence has to be shown,
more so, when the crime is committed by foreign national who
trespasses into the territory of the Union of India and attempts
to over awe the very existence of the State.
12. Thus, we do not find any infirmity in the impugned order
in so far the fines have been imposed and in default, further
imprisonment for respective period has been directed to be
undergone.
13. But, we find a hiatus with respect to the substantive
sentence of rigorous imprisonment for 10 years imposed for
the charge punishable under Section 120B IPC for the reason
for the charge of conspiracy the relatable offences have
resulted in a conviction for a maximum period of 8 years.
14. We accordingly take corrective action. The appeal
stands disposed of modifying the order of sentence dated
15.10.2003, but limited to the sentence imposed for the
offence punishable under Section 120B IPC. We direct that
for the offence punishable under Section 120B IPC, the
appellant shall undergo rigorous imprisonment for 8 years and
pay a fine in sum of Rs.25,000/-, in default of payment of fine
would undergo rigorous imprisonment for one year.
15. The appeal stands disposed of as aforesaid.
16. The trial court record be returned through a special
messenger immediately.
17. For the guidance of the learned Trial Judge, we note that
the Ahlmad of the court has kept the record in a most
haphazard manner. The order-sheet shows that the orders
passed by the learned Trial Judge have not been tagged date
wise.
17. The documents required to be put in Nathi „A‟ are bound
in the Nathi „B‟ and vice-versa.
18. It is hoped and expected that the learned Trial Judge
would exercise proper supervisory control over the Ahlmad
and would ensure that not only proceedings of the instant
case, but pertaining to all cases before the learned trial judge,
the record is maintained as per the relevant rules pertaining to
the maintenance of judicial record.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
May 26, 2009
Nandan
