In the last post on the subject, I summarized the arguments of Shoukat’s counsel, Shanti Bhushan. On April 22, the Additional Solicitor General, Gopal Subramanium made his submissions before the P.P.Naolekar and V.S.Sirpurkar Bench. The ASG argued that there is a reasonable, inescapable inference that Shoukat had the knowledge of conspiracy, if we take into account his close association with the other convicts, visits to the hideouts, his last minute contact with the main convict, Afzal (who death sentence has been confirmed by the Supreme Court).
He argued that there is a high degree of probability that Shoukat had the knowledge that his cousin had conspired, and yet he refrained from intimating the police. He pointed out that the Court had analysed the evidence threadbare, knowledge was clearly made out because of tell-tale circumstances, and there was no error at all. Therefore, his conviction under Section 123 IPC (Concealing with intent to facilitate design to wage war) was absolutely correct, especially as his conduct after the attack, gave scope for no reasonable excuse.
According to the ASG, Section 123 is a lesser offence, and hence can’t be treated as a distinct offence requiring separate proof and ingredient. He argued that Shoukat’s knowledge might have fallen short of the knowledge and intent required for Section 120B or Section 121 IPC, as he was acquitted of offences under these sections. Justice Sirpurkar asked if one is acquitted of offences under Section 120B and Section 121, how can it be said that he was aware, and had the duty under Section 39 Cr.P.C. (Public to give information of certain offences).
The ASG replied that it is here judicial dispassion prevails: if larger knowledge can be termed as intent, and a starting point for convictions under Sections 121 or 120B, a lesser degree of knowledge is sufficient for conviction under Section 123. Shoukat’s acquittal under Sections 120B and 121 does not automatically warrant his acquittal under Section 123, if the ingredients are present, he said. He relied on Section 222(2) of Cr.P.C., which says when a person is charged with an offence, and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. He argued that judgment which attained finality can’t be undone. He suggested that there has been no miscarriage of justice in his conviction and sentence under Section 123.
In his reply to the ASG’s arguments, Shanti Bhushan said liberty cannot be taken away except by procedure established by law. “Procedure” here means oral hearing, which was denied to Shoukat as far as his conviction under Section 123 IPC was concerned. “You had convicted him without giving him an opportunity”, he told the Bench. Pointing to the 7-Judge Bench decision in the Antulay case(A.R.Antulay vs.R.S.Nayak, (AIR 1988 SC1531/1988 2 SCC 654), he said this Court is not powerless to correct its error. Relying on paragraphs 48 and 55 of that judgment, he said, Shoukat’s conviction was not according to procedure established by law.
“It will be to the eternal glory of this Court if it realizes that there was an error”, he told the Bench.
Bhushan also relied on Shamnsaheb M. Multtani vs. State of Karnataka ( AIR 2001 SC 921; 2001 2 SCC 577). In this case the appellant was convicted by the High Court under Section 304-B (Dowry death), without opportunity being granted to him, (Prosecution had failed to make the case under Section 302 IPC) and the Supreme Court set aside his conviction, and ordered his retrial.
