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Delhi High Court invokes Dostoevsky’s ‘Crime and Punishment’ to reduce sentence of 5 JeM operatives

Case title:  BILAL AHMAD MIR ALIAS BILAL MIR ALIAS BILLA VS NATIONAL INVESTIGATING AGENCY NEW DELHI

Case no.: CRL.A. 53/2023

Dated on: 20^TH May 2024

Quorum:  Hon’ble Mr. Justice SURESH KUMAR KAIT And Hon’ble Mr. Justice MANOJ JAIN.

FACTS OF THE CASE

All the appellants were arraigned as accused in case RC No.08/2019/NIA/DLI. When the learned Trial Court heard arguments and ascertained the charges, they all pleaded guilty. They were accordingly convicted for various offences under IPC (Indian Penal Code, 1860) and (UAPA) Unlawful Activities (Prevention) Act, 1967). However, with respect to appellant Ishfaq Ahmad Bhat (A-7), when the appeal was filed under Section 21 of the National Investigation Agency Act (NIA Act), he challenged the legality of conviction as well, contending that the Trial Court had proceeded on the alleged plea of guilty in a mechanical manner. He asserted that when application under Section 229 of Cr.P.C. was moved before the learned Trial Court, it was, in essence a plea of guilt by way of plea bargaining. According to him, the conviction was not sustainable on the basis of such plea of guilt. Fact, however, remains that during course of consideration of the appeal, additional affidavit was filed stating therein that the appellant was no longer desirous of challenging his plea of guilt and consequent conviction and that he was confining his appeal to the extent of sentence qua those offences for which he had been given life sentence. The present appeals are under Section 21 of National Investigation Agency Act (NIA Act) and are in the nature akin to one mentioned in Section 375 Cr.P.C. which specifies that if any accused pleads guilty and is convicted on the basis of such plea of guilt, there shall be no appeal, except as to the extent or legality of the sentence. 10. Thus, the scope of all the aforesaid appeals is very limited in sphere and only the aspect related to the extent or legality of the sentence is required to be seen, the prayer being that they be given minimum sentence for offence under Section 121A IPC and in relation to appellant Muzaffar Ahmed Bhat, for offence under Section 23 UAPA as well. Eventually, when the charges were ascertained vide order dated 03.09.2022, the learned defense counsel informed the court that they all wanted to plead guilty. They were also made aware in vernacular that if they insisted for pleading guilty, they could be straightaway held guilty and could be sentenced to the maximum of the punishment prescribed under offences for which they had been charged. However, they remained firm. The Appellants, who have spent almost four years in prison, challenge the legality and extent of the sentence with respect to those offences for which they have been given maximum sentence i.e. imprisonment for life. Ms. Nitya Ramakrishnan, Learned Senior Counsel and Sh. Kunal Malik, learned Counsel for appellants have, very fairly, confirmed the same. A bare perusal of the aforesaid chart would, distinctly, reveal that there were many offences which attracted life sentence but despite that learned Trial Court awarded sentence of rigorous imprisonment of five years for most such offences. Reference be made to sentences imposed for commission of offences under Section 18, 18B, 19 of UAPA and Section 4 of ESA. As far as Section 23 UAPA is concerned, only appellant Muzaffar Ahmad Bhat (A-4) has been held guilty and sentenced to life imprisonment.

CONTENTIONS OF THE APPELLANT

Ms. Nitya Ramakrishnan, learned Senior Counsel has contended that the appellants never attempted to strike any kind of bargain, which even otherwise was not permissible in law. They all were, actually speaking, utmost remorseful and repentant for the alleged acts attributed to them and without any expectation, they had pleaded guilty before the Court. They were made aware about the fact that they can be meted out maximum sentence, i.e. life sentence. But despite knowing fully well the aforesaid maximum sentence, they chose to plead guilty. It is also contended that though the plea of guilt was without any bargain or expectation, nonetheless, the learned Trial Court did not give due weightage to the mitigating circumstances and handed out life, merely on the basis of the gravity of few such offences i.e. offences under Section 121A IPC and Section 23 UAPA. She contends that if the allegations are considered in toto, it would become very apparent that the crux of the allegations, with respect to all offences together, remained virtually the same. It is argued that Section 18 of UAPA also penalizes conspiracy of a terrorist act or any act preparatory to a commission of a terrorist act. A „terrorist act‟ has been defined under Section 15 of UAPA which is almost akin to what is contained under Section 121A IPC. As per Section 15 of UAPA, „terrorist act‟ is one which is done with the intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India and while learned Trial Court chose to give sentence of mere five years with respect to similar kind of offence under UAPA, it, for totally inexplicable reasons, awarded life sentence under Section 121A IPC. t is, thus, contended that the gravity of the matter should not have been and could not have been the „sole governing circumstance‟. During the course of the arguments, learned counsel for the appellants, in all fairness, contended that their sole contention is that with respect to offences under Section 121A IPC and Section 23 UAPA, any other sentence, instead of maximum sentence may be awarded, while considering the obvious special reasons existing in favour of appellants.

CONTENTIONS OF THE RESPONDENTS

Sh. Gautam Narayan, learned SPP for NIA has, on the other hand, justified the quantum of sentence. It is argued that the learned Trial Court has taken into consideration all the relevant factors which were germane for deciding the quantum of sentence and since the appellants had, without any expectancy, pleaded guilty before the Court, it does not lie in their mouth to now raise any grudge with respect to the extent of the sentence. It is argued that the appeals are totally misplaced and there is no reason to interfere with the sentence awarded by the learned Trial Court. It is also argued that the appellants were highly radicalized workers of a proscribed terrorist organization which had carried out several terrorist acts in India and the learned Trial Court had shown enough of compassion as it did not award maximum sentence for various other offences. During course of arguments, Sh. Narayan also made reference to the allegations against the appellants and contended that the allegations were actually enormous and merely because the appellants had chosen to plead guilty, it does not automatically follow that they had become entitled to lesser sentence. It is claimed that undue sympathy would rather do more harm than good and reliance in this regard has been placed upon Mohd. Jamiludin Nasir (supra). There cannot be qualm with respect to the above proposition but fact remains that the factual matrix of that case was entirely different. The charges therein were also for commission of offences under Section 121 IPC and Section 302 IPC, which attracted death sentence. The incident, narrated therein, resulted in loss of life of five police personnel apart from injuring thirteen police personnel and civilians. However, Hon’ble Supreme Court, taking into consideration the facts and circumstances of that case, came to the conclusion that it was not a case warranting extreme penalty of death. Moreover, in the present case, the charge is with respect to the conspiracy i.e. Section 121A IPC and not any actual act as contemplated under Section 121 IPC. It was also observed in the aforesaid case that sentencing is a delicate task requiring an interdisciplinary approach and calls for special skills and talents. A proper sentence is the amalgam of many factors, such as, the nature of offence, circumstances—extenuating or aggravating—of the offence, prior criminal record of the offender, age and background of the offender with reference to education, home life, sobriety, social adjustment, emotional and mental condition, the prospects for his rehabilitation, etc. Obviously, the most important mitigating circumstance is the fact that all the appellants pleaded guilty at the first available opportunity, without any expectation. They were very much regretful for their acts. We have carefully perused the contents of the application moved by the appellants under Section 229 Cr.P.C. before the learned rial Court whereby they had expressed their wish to plead guilty.

LEGAL PROVISIONS

1. Indian Penal Code (IPC), 1860

Section 121A IPC: Punishes conspiracy to commit offenses against the state, such as waging war against the Government of India.

Section 121 IPC: Punishes waging, or attempting to wage war, or abetting waging of war against the Government of India. However, the charge under this section in the case study is related to conspiracy under Section 121A.

2. Unlawful Activities (Prevention) Act (UAPA), 1967

Section 18 UAPA: Punishes conspiracy or attempt to commit, or advocating, abetting, advising, or inciting the commission of a terrorist act or any act preparatory to a terrorist act.

Section 18B UAPA: Relates to punishing individuals who recruit any person or persons for a terrorist act.

Section 19 UAPA: Penalizes individuals harboring or concealing, or attempting to harbor or conceal, any person knowing that such person is a terrorist.

Section 23 UAPA: Specifically deals with certain offenses involving terrorist organizations, which can include participation in activities, membership, and providing support to a terrorist organization. In the case study, Muzaffar Ahmad Bhat was sentenced to life imprisonment under this section.

3. Criminal Procedure Code (Cr.P.C.), 1973

Section 229 Cr.P.C.: Provides the accused with the option to plead guilty. The court may, in its discretion, convict the accused on his plea of guilt.

Section 375 Cr.P.C.: Limits appeals when a conviction is based on a guilty plea, except regarding the extent or legality of the sentence.

4. National Investigation Agency Act (NIA Act), 2008

Section 21 NIA Act: Deals with appeals against judgments, sentences, or orders, including the conviction of persons tried by Special Courts under this Act.

COURT’S ANALYSIS AND JUDGEMENT

The enormity of the allegations cannot be the sole determining factor for finalizing the quantum of sentence. Thus, when it comes to sentencing, the yardstick has to be somewhat different and a balanced one. The Court is required to take note of all the mitigating circumstances including the age and the previous antecedents of the appellants. Their candid and unconditional plea of guilt should also be in the reckoning. If the case had been put to trial, it would have taken years together in concluding the matter. Thus, in hindsight, there is significant saving of precious judicial time. A division bench comprising of Justice Suresh Kumar Kait and Justice Manoj Jain disposed of the appeals moved by Bilal Ahmad Mir, Sajjad Ahmad Khan, Muzaffar Ahmad Bhat, Mehraj- ud-Din Chopan and Ishfaq Ahmad Bhatt challenging the trial court order awarding them life sentence. Citing Russian novelist Fyodor Dostoyevsky’s quote from the book “Crime and Punishment”, the Delhi High Court on Monday modified and reduced the sentence awarded to five members of terror organization Jaish-e-Mohammed (JeM) from life imprisonment to 10 years of rigorous imprisonment for the offence under Section 121A of Indian Penal Code. Nonetheless, it will be hazardous to assume that these convicts, merely because of their despicable past, have no future. They do need to be given „a ray of hope‟. In the case in hand, we are fully cognizant of the fact that the appellants had pleaded guilty at the first available opportunity, without any expectation. There is nothing on record which may suggest that they are beyond redemption. India has shown enough of progression in all spheres and our justice delivery system is no exception. It also strongly believes that, more often than not, the eventual consequence of any penal sanction should be to reform any individual, instead of shutting him out by putting him inside for life. that as it may, keeping in mind the gravity of the matter, though, appellants did not deserve any unjustifiable leniency, at the same time, considering their candid confession at first opportunity, their relatively clean antecedents, inclination of reformation and their young age, the life sentence was not warranted either. The man who has a conscience suffers whilst acknowledging his sin. We refer to a quote by Fyodor Dostoyevsky, the author of „Crime and Punishment‟ and in chapter 19, Dostoevsky writes that “if he has a conscience he will suffer for his mistake; that will be punishment — as well as the prison”. Consequently, we hereby dispose of all the appeals with modification that for offence under Section 121A IPC, appellants are directed to serve sentence of rigorous imprisonment for ten years with fine of Rs. 2,000/- and to further undergo SI for a period of one year in case of default of payment of fine. Other terms and monetary imposition of fine for other offences for all the appellants shall remain unaltered. Appeals stand disposed of in aforesaid terms.

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Judgement Reviewed by – HARIRAGHAVA JP

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