Shanti Bhushan
Former LAw Ministwer of India

During the Emergency, in 1976, the Supreme Court had delivered a Shocking judgment in the Habeas Corpus case known as A.D.M. Jabalpur , which had stunned the whole country. It had declared that during the emergency, nobody had any right to life or liberty. On 14 th of May 2008, the Supreme Court has delivered another shocking judgment in another Habeas Corpus case of Shaukat. Can we imagine that in any civilized country of the World an Apex Court can sentence a person to imprisonment without framing a charge, without giving him any opportunity to lead evidence in his defence, when the offence of which he is convicted puts the burden of proof on the accused, and without even hearing him or his counsel on the question.

Sounds incredible, but it is true. This is the precise reason why the countrymen need to sit up, take notice and think. What has been done to Shaukat today, can be done to any of us tomorrow. A careful reading of the Supreme Court judgment of 14 th May itself would bear out these facts, which are totally beyond dispute.

The Supreme Court by an admirable judgment ( P. Venkatarama Reddy and P.P. Naolekar)JJ of 4 th August 2005, decided the POTA case relating to the Parliament Attack on 13 th December 2001. In a careful and well reasoned judgment, written by Justice P. Venkatarama Reddy, the Court acquitted Shaukat of all the 12 Charges which had been framed against him in the Special Court . It was expressly held that Shaukat was not a party to the conspiracy, which was hatched by Afzal with the Pakistani militants, all of whom had been killed on the spot at the time of the incident.

No charge had been framed against Shaukat in the Special Court under Section 123 I.P.C. read with Section 39 Cr. P.C. which requires a person, who becomes aware of the intention of any other person to commit certain offences, to give information of the same to a police officer, in the absence of a reasonable excuse the burden of proving which excuse is on the person so aware.

In the absence of a charge under section 123 I.P.C. against Shaukat the question of his producing evidence whether he had any reasonable excuse, for not reporting to a Police Officer did not arise. In fact even if he had informed a Police Officer, who did not take him seriously, he could have led that evidence only if he was charged for that offence.

No argument was raised by the Public Prosecutor during the protracted hearing in the Supreme Court that even if no charge of conspiracy was proved against Shaukat, and he had to be acquitted of all the twelve charges framed against him, he could still be convicted for an offence under section 123 I.P.C. with which he had not been charged. If he had raised any such argument and asked for a conviction under section 123 I.P.C., I would have shown the 3 judges decision of the Supreme Court in Sham Saheb Multanis case (2001) 2 S.C.C. 577. In this case a husband was charged under section 302. I.P.C. for the murder of his wife. The High Court had acquitted him of that charge but convicted him for the offence of “Dowry Death” under section 304-B, and imposed the sentence of life imprisonment. The Supreme Court formulated the question before them thus:

“The question raised is this: Whether an accused who was charged under section 302 I.P.C could be convicted alternately under section 304-B. I.P.C. without the said offence being specifically put in the charge.”

The Supreme Court pointed out that unlike an offence under section 302, where the burden was on the prosecution, for an offence under section 304-B. the burden of proof shifts to the accused and it laid down: -

“If that be so, where an accused has no notice of the offence under section 304-B I.P.C., as he was defending a charge under section 302 I.P.C. alone, would it not lead to a grave miscarriage of justice, when he is alternately convicted under section 304-B I.P.C. and sentenced to the serious punishment prescribed there under.”

The Supreme Court further said, “the above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under section 302 I.P.C. and was alternately convicted under section. 304-B I.P.C. without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.”

The principle laid down is clearly applicable to Shaukat's case on all fours. I have no doubt that if the point had been raised by the Public Prosecutor, during the hearing or even if the judges had raised it, the bench of Justice P. Venkatarama Reddy & P. P. Naolekar, would not have convicted and sentenced Shaukat under section 123. I.P.C., after seeing the judgment in Shamsaheb Multani case.

However, this aspect occurred to the judges after the judgment was reserved, and they never heard the accused or his counsel, on Sec. 123 I.P.C. By their judgment of 4 th August 2005 while acquitting Shaukat of all the charges framed against him convicted and sentenced him u/s 123 I.P.C. in the following words:-

“Thus by his illegal omission to apprise the police or Majistrate of the design of Afzal and other conspirators to attack Parliament, which is an act of waging war, the appellant Shaukat has made himself liable for punishment for the lesser offence u/s. 123 I.P.C. “ To err is human and judges are indeed human. If judges decide a question, without hearing, they may make mistakes. This is why the principle of natural justice requires a hearing before any judicial decision.

In a 7 judge judgment in Antulay's case (1988) 2 S.C.C. 602, the Supreme Court has held that “violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity”.

In that case the Supreme Court by an earlier order had transferred a trial from a special judge to the High Court. This order of the Supreme Court was held to be a nullity on 2 grounds, one that it had been made in contravention of the principles of natural justice and secondly this order of the Supreme Court was also in contravention of a fundamental right.

Art. 21 of the Constitution confers the most important fundamental right in these glowing words:-

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

The procedure is prescribed by the Code of Criminal Procedure. It requires the framing of a charge, an opportunity to the accused to lead defence evidence on that charge and an oral hearing through counsel.

The Supreme Court not only contravened this fundamental right of Shaukat but also convicted and sentenced him without hearing him or his counsel on this new charge under section 123 I.P.C. The Supreme Court‘s conviction and sentence were therefore clearly a nullity as laid down by the 7 Judges Bench in Antulay's case.

However, instead of rushing to file a Habeas Corpus Petition straight away, Shaukat first filed a review petition, so, that the judges themselves could correct their error. The senior Judge P. Venkatarama Reddy who had otherwise written an admirable judgment had since retired. The review petition was dismissed in Chambers, without any hearing.

A curative Petition was then filed by Shaukat, which was also dismissed in Chambers without any hearing.

It was then that a Habeas Corpus Petition was filed which had to be heard in Court. When Antulay's judgement, Rupa Hurra Judgment, Shamnsaheb M. Multtani judgment were shown to a bench of Justice Naolekar and Justice Ravinderan, they issued notice and put up the matter for final hearing.

The Petition was finally heard for two days before Justice Naolekar and Justice Sirpurkar, after which this infamous judgment was delivered on 14 th May 2008.

Courts attention was drawn to the 5 judges Constitution Bench judgment in Rupa Ashok Hurra case (2002) 4 S.C.C. 388 in which the court had observed:-

“Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by a few. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such cases it would not only be proper but also obligatory both legally and morally to rectify the error.”

Only great judges admit to making mistakes & correct it. Evidently, these two judges did not prove themselves to be so worthy.