The Supreme Court in its judgment delivered today in the case of Shoukat Hussain Guru appears to have admitted its helplessness in correcting a flaw in its judgment, after the dismissal of review and curative petitions.
While dismissing the appellant’s writ petition, seeking his immediate release from imprisonment, and retrial under Section 123 IPC (as he was convicted and sentenced, without being charged under this section, thus depriving his opportunity to defend himself), the Court said as follows: “Moreover, for granting the relief prayed for by the petitioner for entertaining the present writ petition it is necessary to set aside the judgment delivered by a Division Bench of this Court confirmed by dismissal of the review petition as also of the curative petition, which cannot be granted as not being permissible in exercise of the powers under Article 32 of the Constitution of India.” Clearly, the issue involves a substantial question of law and the Constitution, and should have been heard and decided by a larger Bench, rather than by the present two-Judge Bench.
According to the Bench, it cannot be said that because a specific charge under Section 123, IPC was not framed, he had lost an opportunity of raising the defence available to him and thus has been directly and prejudicially affected. This defence was available to the petitioner even under Sections 121, 121A and 122 of which he had been expressly charged with, it said.
During the arguments, Justice Sirpurkar repeatedly asked the ASG that since the petitioner had been acquitted of the charges under Sections 121, 121A and 122, would it be correct to suggest that he did not use the defence to show that he had indeed informed the police, or that he had a reasonable excuse not to inform. But the judgment is silent on this aspect. It can be easily said that the petitioner had no need to use this defence when without using it the Court had acquitted him. Had he known that he would be convicted of a minor offence under Section 123, probably he would have used the defence. The silence of the judgment on this aspect, is therefore, intriguing.
The prosecution having been successful in proving the necessary ingredients of Section 123, IPC, it would constitute a minor offence of a major offence and, therefore, the petitioner was convicted under Section 123, IPC which is a minor offence of the offences he faced during the trial. In the face of the stand he had taken and his conduct even after the attack, he could not have pleaded reasonable excuse for not passing on the information, the Bench held. The judgment cites the Multtani case to hold that Section 123 is a minor offence. But in this case, the Supreme Court had in fact set aside the conviction by the High Court, because the High Court had erroneously inferred a minor offence.
The facts of the case are not in dispute. The Bench assumes that even if the petitioner got an opportunity to defend himself against the charge under Section 123, he could not have succeeded, because it says, there was reasonably high probability that he could not have succeeded. Since when, we began to base convictions on mere probabilities (even if it is high), rather than on grounds beyond reasonable doubt? As the petitioners’ counsel said during the arguments, even if he had informed about the incident, the police might not have taken him seriously, or that he could have been facing threat to his life if he did not conceal, which could have been considered as a reasonable ground for concealment. The judgment does not address these arguments.
As the judgment comes close on the heels of the Jaipur blasts, the Court would have doubtless revealed its zero tolerance for all terrorist acts, including concealment of information about commission of a terrorist offence. But the question can still be asked, does the judgment answer all the questions raised by the petitioner during the arguments?