93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 003

44) On 27.07.2007, the Designated Court again read the following conclusion in respect of A-1.

“82 a) Accused no. 1 Yakub Abdul Razak Memon out of remaining 5 accused at trial:

is found guilty for the offence of conspiracy for commission of such acts as found proved from charge firstly framed at trial and punishable under Section 3(3) of TADA Act, 1987 and Section 120-B of IPC read with offences mentioned in said charge and on said count said accused is hereby convicted and sentenced to suffer punishment of death and for the said purpose is ordered to be hanged by the neck till he is dead but subject to confirmation of same by Hon’ble Apex Court about said part of sentence and is also ordered to pay a fine of Rs. 25, 000/- (Twenty Five Thousand.)

(b) is also found guilty for offence punishable under Section 3(3) of TADA Act, 1987 for commission of such acts as found proved from charge at head secondly framed against him and on said count said accused is hereby convicted and sentenced to suffer RI for life and is ordered to pay a fine of Rs. 1,00,000/- (One Lakh only) and in default of payment of fine is ordered to suffer further RI for a period of 2(two) years.

(c) is also found guilty for offence punishable under Section 5 of TADA for commission of such acts as found proved from charge at head thirdly framed against him and on said counts said accused is hereby convicted and sentenced to suffer RI for 10 (ten) years and is ordered to pay a fine of Rs. 1,00,000/- (One Lakh only) and in default of payment of fine is ordered to suffer further RI for a period of 2 (two) years.

(d) is also found guilty for offence punishable under Section 6 of TADA for commission of such acts as found proved from charge at head fourthly framed against him and on said count said accused is hereby convicted and sentenced to suffer RI for 14 (fourteen) years and is ordered to pay a fine of Rs. 1,00,000/- (One Lakh only) and in default of payment of fine is ordered to suffer further RI for a period of 2 (two) years.

(e) is also found guilty for offence punishable under Sections 3 and 4 read with Section 6 of the Explosives Act for commission of such acts as found proved from charge at head fifthly framed against him and on said count said accused is hereby convicted and sentenced to suffer RI for 10 (ten) years and is ordered to pay a fine of Rs. 50,000/- (Fifty thousand only) and in default of payment of fine is ordered to suffer further RI for a period of 1 (one) year.

(f) however, aforesaid accused being found not guilty of all other offences for which said accused was charged at trial vide charges framed at Exh. 4 said accused is acquitted for all said offences.

(g) accused entitled for set off in accordance with law for period for which he was in custody.

(h) the substantive sentence awarded to A-1 to run concurrently.

(i) A-1 is apprised of sentence awarded to him. The said accused is again apprised that sentence of Death awarded to him is subject to confirmation of same by Hon’ble Apex Court and for said purpose court would be making necessary reference to Apex Court within 30 days from the day of completion of passing of final order.

(j) The said accused is further apprised that it will take some time to complete pronouncement of final order of conviction and sentence of remaining accused in this case and thus complete the judgment by getting same transcribed, corrected and signed. The said accused is apprised that a copy of judgment and order will be supplied to him free of cost after the same is completed and corrected in all respect and for said purpose the said accused will be ordered to be produced before Registrar of this Court on 26th September 2007 for supplying such copy subject to same being by then ready.

(k) the court Sheristedar to handover operative part of order passed today to A-1.

(l) Registrar to send A-1, A-3, A-4 and A-8 to Arthur Road Prison along with appropriate warrant.

27.07.2007

-Sd/-

(P.D. Kode) Presiding Officer of the Designated Court (Under TADA (P) Act, 1987) For Bomb Blast Cases, Greater Bombay”

45) On perusal of the conclusion with regard to A-1, it is very much clear that he was apprised regarding the offences for which he was found to be guilty. While A-1 was awarded death sentence, it is clear from the conclusion that he was apprised that sentence of death awarded to him is subject to the confirmation by the Apex Court and he was also informed that for the said purpose the Court would be making necessary reference to Apex Court within 30 days from the date of completion of passing of final order. In the same order, the Court has also apprised A-1 that it will take some time to complete the pronouncement of the final order of conviction and sentence of remaining accused and completed the judgment by getting the same transcribed, corrected and signed. The court also directed the Sheristedar to handover the ‘operative part’ of the order passed on both these days, i.e., 12.09.2006 and 27.07.2007. In view of the above, it is useful to refer the following decisions on the point.

46) In Rama Narang vs. Ramesh Narang & Ors., (1995) 2 SCC 513, it was held as under:

“12. …… the trial, therefore, comes to an end only after the sentence is awarded to the convicted person.” (emphasis supplied) “13. …… Thus a judgment is not complete unless the punishment to which the accused person is sentenced is set out therein.” (emphasis supplied) The Court further held in para 15:

“15….. Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before a Sessions Court, the stage upto the recording of a convicton and the stage post-

conviction upto the imposition of sentence. A judgment becomes complete after both these stages are covered….” (emphasis supplied)

47) In Lakdey Ashok vs. Government of A.P., (2009) 6 ALT 677 (in Paras 12, 13 and 15) it was held by the Andhra Pradesh High Court that the ‘judgment’, as contemplated under Section 353 is complete only after the order on sentence is pronounced. The High Court held that:

“It will thus be seen that under the Code after the conviction is recorded, Section 235(2) inter alia provides that a judge shall hear the accused on the question of sentence and then pass sentence on him according to law. The trial, therefore, comes to an end only after the sentence is awarded to the convicted person. It will thus be seen from above provisions that after the court records a conviction, the accused has to be heard on the question of sentence and it is only after the sentence is awarded that the judgment becomes complete and can be appealed against under Section 373 of the CrPC. Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before the sessions court, the stage up to recording of a conviction and the stage post-conviction up to the imposition of sentence. A judgment becomes complete after both these stages are covered.” (emphasis supplied) It is clear that a conviction order is not a “judgment” as contemplated under Section 353 and that a judgment is pronounced only after the award of sentence. In the case on hand, the Designated Judge pronounced the operative part of the judgment on 27.07.2007 and explained the substance of the judgment to the appellant in compliance with the requirements of Section 353(1)(c) of the Code. A perusal of the final judgment of the Designated Court shows that the Designated Judge has dealt with the issue of pronouncing the judgment under Section 353(1)(c) in detail. In para 5 of Part 46 of the final judgment, the Designated Judge explained the reasons for pronouncing the judgment under Section 353(1)(c) of the Code as follows:-

“5) In the premises aforesaid but in light of 1) events which had occurred in past at trial, 2) keeping in mind attitude and conduct of accused as disclosed during course of trial, 3) mammoth subject matter involved at trial i.e. charges framed thereon running into 512 with many of them containing in all 192 sub charges, 4) delicacy and sensitivity of subject matter involved at trial due to numerous incidents involved and communal conflict said to be involved, 5) impact likely to be caused at/even after commencing process of judgment within and even outside court precincts, 6) impact likely to be caused at/after declaration of final order, 7) point of security and safety of concerns attending during course of proceeding within or even outside precincts of court and point of law and order within the City/State/Nation, 8) large number of 123 accused about whom judgment was to be declared, 9) necessity of smoothly completing process of judgement by taking due care to prevent/avoid occurring of any event causing disturbance, interruptions etc. during same vitiating decorum of court, it was proper to deliver judgement only in accordance with provision of Sec. 353(1) (c) of Cr.P.C. rather than adopting any other prescribed mode for delivery of judgement. Needless to add that following the other method was bound to result trend of judgement being known to accused prior to delivery of same and thus giving all the chance to unscrupulous accused on bail to flee away and such accused in custody to create confusion/or indulge in activities, disrupting ongoing work and thereby defeating the process of law. For the same reason it was also felt necessary to keep judgement computerized and contents thereof protected by putting password rather than taking print out of the same.” (emphasis supplied)

48) Since we have completely analyzed the method follwed by the Designated Judge, we are satisfied that the requirements of pronouncing a judgment under Section 353(1)(c) of the Code have been fully complied with.

The above approach makes it clear that while pronouncing the operative part of the judgment, the Designated Court ensured that the substance of the judgment has been explained to the appellant in compliance with the requirement of Section 353. It is also relevant to point out that the said order dated 27.07.2007 was pronounced in open court and signed and dated by the Designated Judge in compliance with the requirements of the said section.

49) Regarding the requirement of providing a copy of the judgment immediately as required by the provisions of Section 363, the Designated Judge in para 61 of Part 46 of the final judgment has dealt with the same as follows:-

“Having regard to the same, the word used “immediately” in sub-sec.

363 (1) of Cr.P.C. will be required to be interpreted in context of subject matter involved in each of the case. In short in a case involving such huge subject matter furnishing of such copy after reasonable time after completion of passing of final order would never be said to be an act offending provisions of law or defeating right of accused.”

50) We have already pointed out that this was a joint trial of 123 accused persons. It is also brought to our notice that the copy of the final judgment was provided free of cost to the appellant after the pronouncement of the orders with respect to each of the accused by the Designated Judge. Further, as is evident from para (j) of the order dated 27.07.2007, the appellant was apprised of the fact that a copy of the final judgment would be provided after completion of the order as regards sentence in respect of the remaining accused.

51) As pointed out earlier, the trial at the Designated Court involved 123 accused and findings were recorded for 512 charges and accordingly, the process of pronouncing sentence in respect of each accused and apprising the accused of the same could not have been completed in a day. Thus, the process of pronouncement of judgment had to be carried out for all accused since it was a joint trial and accordingly a copy of the final judgment could be provided to each of the accused only after the sentence was pronounced in respect of all the accused persons. The judgment also shows that detailed hearings on sentencing effectively commenced after all the conviction orders were pronounced and counsel for the appellant/appellants made detailed submissions on it. It is evident from para 351 onwards of Part 46 of the final judgment that detailed submissions were made by the counsel by pointing out mitigating factors that were considered by the Designated Judge while sentencing the appellant and other accused at the trial. It is also clear from the judgment that detailed submissions were made by the appellant (A-1) during the pre-sentence hearing and these submissions were considered and, accordingly, reasons have been recorded by the Designated Judge in Part 46 of the final judgment in compliance with the requirement of Section 235(2) and Section 353 of the Code. It is also relevant to mention that Section 354 makes it clear that ‘judgment’ shall contain the punishment awarded to the accused. It is therefore, complete only after sentence is determined.

52) Section 354(1)(c) states that every judgment referred to in Section 353 “shall specify the offence of which, and the section of the Indian Penal Code (45 of 1860), or other law under which, the accused is convicted and the punishment to which he is sentenced. In view of the same, the judgment under Section 353(1)(c) is to be pronounced only after the sentence in a case where conviction is determined. The process of delivery of judgment includes the determination of guilt, or otherwise, of an accused and in the event of such guilt being established, also includes the process of sentencing the accused.

53) In our case, it was pointed out that the judgment was reserved on 23.11.2003. Till 2006, the Court proceeded to formulate its reasons and make judicial determination of guilt or otherwise in respect of each accused. The process of delivery of judgment commenced on 12.09.2006 when the Court pronounced its verdict on the guilt or otherwise of specific accused. Whilst doing so, the Designated Judge explained the offences for which the accused were being convicted and invited the accused persons to make their statements with reference to the quantum of sentence. It is evident that at this stage, the detailed reasoning may not have been finally communicated to the accused, but the determination of the Court as well as the broad understanding of the operative part of the judgment was communicated. In case there is an objection on the part of the accused regarding not knowing the reasons for his conviction, it contextually means that he had not been made aware as to the specific pieces of evidence or marshalling of facts which led to his conviction.

54) In view of the same, there is no illegality or irregularity in the process followed and specifically under Sections 353, 354 and 235 keeping in mind the magnitude of the task before the Designated Judge inasmuch as he was trying 123 accused persons and had to deliver a judgment which runs in about 4,300 pages. In view of the above, we hold that the pronouncement of the judgment was in compliance with the above said provisions of the Code and does not violate any of the provisions of the Code as contended by the appellant.

55) It is also clear from the reasoning of the Designated Court that by adopting the same procedure, the Designated Judge conveyed the conclusion with regard to various charges leveled against other accused (convicted total accused 100) and also apprised each one of them including A-1 the reasoning and other materials for arriving at such a conclusion as well as their pleaders. He also apprised that because the convicted accused are 100 in number and the common judgment is running into thousands of pages, it may require some time and as soon as the full judgment will be made ready, the same will be supplied to them free of cost. It does not mean that on the date of pronouncing the decision (decision was pronounced on various dates), the whole judgment was not ready or incomplete.

56) As the Code mandates that the accused are entitled to full/whole judgment, unless the conclusion relating to all the convicted accused is read over and explained to them, opportunity of hearing on sentence has been provided to them or their respective counsel and incorporation of both the conclusions relating to conviction and sentence has been done, the same cannot be supplied to the accused. Taking note of the number of persons involved, witnesses examined, documents marked/exhibited which are running into thousands of pages, unless the full/whole judgment containing all the details, the same cannot be supplied to the accused. In other words, the supplied copy of the judgment unless contains the charges, materials both oral and documentary relied on by the prosecution, discussion, ultimate conclusion and the sentence, the same cannot be treated as full/whole judgment in terms of the procedure prescribed under the Code. Inasmuch as all these factual aspects, particularly, the peculiar position about the number of accused and voluminous oral and documentary evidence, the Designated Judge not only apprised the accused regarding the offences for which they were found to be guilty but also of the reasoning adopted and the materials relied on by him.

57) It is also relevant to point out that on apprisal of various offences for which the accused were found to be guilty before hearing all the accused on sentence, their respective counsel took time for filing written arguments, in fact, filed written submissions on various dates conveying their views to the Court. It is also clear that on consideration of the objections raised, the accused were awarded sentence and the same were ultimately conveyed to all the accused. It is not in dispute that neither the decision relating to ultimate conviction nor the sentence could be done in one day in respect of all the convicted 100 accused. Undoubtedly, it spread over to various dates and we are satisfied that the Designated Court completed its task by passing the impugned orders keeping in mind the procedural aspects to be followed in terms of the Code (vide Sections 353, 354, 362, 363 etc.) and at the same time, adhering to the principles of natural justice and the valuable right of the accused under Article 21 of the Constitution.

Whether the impugned judgment is in violation of Section 362 of the Code.

58) It is also brought to our notice that several applications were made by various accused persons to amend the conviction orders which were dismissed as meritless by the Designated Court. In fact, the Designated Court dismissed the applications for amending the conviction orders of 99 accused persons. Learned senior counsel for A-1 relied upon Section 362 and contended that since judgment on sentence had not been pronounced, the Designated Court could amend the conviction order to bring all convictions under the IPC instead of convicting 99 accused persons under TADA. In the light of the submissions made, we verified the records and impugned final judgment, particularly, Part 46 and found that neither A-1 nor any other counsel pointed out the amendment, in particular, that would attract the provisions of Section 362 of the Code. On the other hand, as rightly pointed out by the counsel for the CBI, there is no alteration and amendment that has been made in the judgment after its pronouncement as claimed by the counsel for the appellant.

59) The Code being essentially a code of procedure unlike all procedural laws is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure for the accused a full and fair trial in accordance with the principles of natural justice. From the materials placed and after verification of the decision, apprisal of the accused about the contents of the judgment, hearing all the accused and their pleaders regarding sentence, we are satisfied that the Designated Court has complied with the requirements of law and we are also satisfied that considering the voluminous nature of work, even if there is mere procedural irregularity that would not vitiate the trial or the ultimate conclusion unless the same results in miscarriage of justice. We are satisfied that the impugned judgment and procedure followed and adopted by the Designated Court fulfill the mandate of the Code and there is neither violation of principles of natural justice nor breach of Article 21 of the Constitution. Even otherwise, taking note of the fact that present appeals are the only remedy for the appellants, we heard the counsel at length, perused and analysed all the oral and documentary evidence running into several volumes. Every opportunity was granted to all the counsel and all the issues were considered without any restriction. Accordingly, we reject the contention raised by learned senior counsel for the appellant. Conspiracy

60) Chapter VA of IPC speaks about Criminal Conspiracy. Section 120A defines criminal conspiracy which is as under:

“120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,— (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.–It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” Section 120B speaks about punishment of criminal conspiracy which is as under:

“120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” 3 Objects and Reasons of the 1913 Amendment

61) The above mentioned sections were introduced by the amendment of 1913. It is important to notice the Objects and Reasons of the said amendment to understand that the underlying purpose of introducing Section 120-A was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means, punishable.

FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:

93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

Part 001 / Part 002 / Part 003 / Part 004 / Part 005 / Part 006 / Part 007 / Part 008 / Part 009 / Part 010 / Part 011 / Part 012 / Part 013 / Part 014 / Part 015 / Part 016 / Part 017 / Part 018 / Part 019 / Part 020 / Part 021 / Part 022 / Part 023 / Part 024 / Part 025 / Part 026 / Part 027 / Part 028 / Part 029 / Part 030 / Part 031 / Part 032 / Part 033 / Part 034 / Part 035 / Part 036 / Part 037 / Part 038 / Part 039 / Part 040 / Part 041 / Part 042 / Part 043 / Part 044 / Part 045

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