It would be extremely vital for lawyers, litigants, judges, law professors and so also the students of law as also for a layman to know essentially that the Supreme Court as recently as on July 11, 2022 in a brief, brilliant, bold and balanced judgment titled Mohammad Irfan vs State of Karnataka in Criminal Appeal Nos.201-202 of 2018 With Criminal Appeal Nos.203-204 of 2018 and Criminal Appeal Nos.205-207 of 2018 and Criminal Appeal Nos.208-209 of 2018 and cited in 2022 LiveLaw (SC) 590 has minced just no words to make it crystal clear that assassination or bodily injury is not necessary for attracting the offence under Section 121A of the IPC. The Apex Court also minced no words to unequivocally state that, “As the explanation to Section 121A of the IPC discloses, for an offence of conspiracy, it would not be necessary that any act or illegal omission must take place in pursuance thereof. Thus, even though no untoward incident had actually of the IPC, the matter would still come within the four corners of Section 121A of the IPC.” We thus see that the Supreme Court upheld the conviction and life sentence of four persons for causing the terror attack at the Indian Institute of Science in Bengaluru in December, 2005.
At the outset, this extremely laudable, learned, landmark and latest judgment authored by Justice Uday Umesh Lalit for a Bench of Apex Court comprising of himself, Justice Hemant Gupta and Justice S Ravindra Bhat sets the ball rolling by first and foremost putting forth in para 1 that, “Criminal Appeal Nos.201-202 of 2018 (arising out of SLP (Crl.) Nos.7347-7348 of 2016); Criminal Appeal Nos.203-204 of 2018 (arising out of SLP (Crl ) Nos.8246-8247 of 2016); Criminal Appeal Nos.205-207 of 2018 (arising out of SLP (Crl) Nos.8243-8245 of 2016) and Criminal Appeal Nos.208-209 of 2018 (arising out of SLP (Crl) No.138-139 of 2017) are filed by original Accused Nos.5, 6, 1 and 4 respectively, against the common judgment and final order dated 10.05.2016 passed by the High Court (The High Court of Judicature of Karnataka at Bangalore) in Criminal Appeal Nos.220 of 2012, 530 of 2012, 531 of 2012 and 1123 of 2013.”
Needless to say, the Bench then states in para 5 that, “Being aggrieved, the instant four appeals before this Court are by A-5, 6, 1 and 4. The State has not preferred any appeal either against the acquittal of A-7 in respect of all charges or against the other Accused who were acquitted of some of the charges. Further, no appeals have been preferred by A-2 and 3.”
To put things in perspective, the Bench then envisages in para 6 that, “While investigating into Crime No.110 of 2005 relating to an incident of shootout at Indian Institute of Science, Bangalore, PW-68 Sri V.S.D. Souza came to know about a larger conspiracy concerning Lasker-e-Toiba (LeT), a banned organization in India, which led to registration of FIR No.3 of 2006 on 14.01.2006. The allegations in said FIR No.3 of 2006 were as under:
“1. I was directed by the Commissioner of Police, Bangalore City vide Memo No.CRM/4/186/2006 dated 29.12.2005 to investigate the case in Cr.No.110/2005 registered in Sadashivanagar Police Station. I took up further investigation of the case in Cr.No.110/2005 U/s 307 Indian Penal Code, 18060 & 25, 27, 28 of Arms Act & 4 & 5 of Explosive Substance Act, 1908 of Sadashivanagar Police Station, Bangalore City from T. Ajjappa, ACP, Seshadripuram Sub-Division, Bangalore on 31.12.2005.
2. As per my instructions on 02.01.2006 at 6.30 am Sri Subbanna, Police Inspector and his team produced the Accused Mohammed Razur Rehman @ Abdul Rehaman @ Umesh S/o Samsuddin, aged 35 years, R/o No.5-10-82, BTS, Naigonda, Andhra Pradesh, before me along with his report seizer mehazar, a pocket diary containing telephone numbers which were seized during the course of investigation of the above case.
3. While investigation, the above case I have come to be aware of the following credible information. That Lasker-e-Toiba (LeT) which is banned organisation in India is active and trying to spread its terrorist activities in India and elsewhere.
4. The main aim of LeT is to destabilize India by way of terrorist activities like attacking vital sensitive installations, assassinating important public personalities, causing bomb explosions in public places and carrying shootouts, disrupting ***** (illegible) peace and tranquillity, causing communal disharmony ***** (illegible) economic interests thereby disturbing public order etc.
5. Abu Mohamed @ Mohamed Irshad is the chief of LeT in Saudi Arabia. Abu Mohamed is a Pakistani national. Abu-Abdulla, Abdul Manner and Zakria all Pakistani nationals used to assist Abu Mohammed @ Mohammed Irshad in LeT activities.
6. Abdul Rehman, a native of Nalgonda, Andhra Pradesh, a dropout in Diploma, ventured into different professions, but failed. In 1993 he procured passport at Hyderabad and in 1994 his brother Habeer-UrRehman helped him in getting a Saudi Visa and Abdul Rehman went to Saudi Arabia and worked as driver, as a salesman in a vegetable shop, in laundry, driver of water supply van and at present he is working as sales representative at Onaiza Under a cosmetics dealer.
7. He came in contact with Sheik Mehboob Ahamed Moulana an LeT leader in a Sanaga Masjid.
8. Sheikh Mehboob motivated Abdul Rehman to join LeT in 1998. The said Abdul Rehman started attending to its religious activities of LeT an started regularly attending to its religious activities conducted by LeT which were basically motivating people for Jehadi activities. Abu-Hanza, Abu-Ummer, Abu-Nidal, Abu-Bukka, Abdul Rehman Makki, Hafizullah who are senior LeT leaders used to take active participation and were motivating the people for Jehadi activities by their provocative speeches during 1999. Abu Rehman got married and returned to Saudi Arabia.
9. In 2000 Afsar of Bangalore and Mehboob Ibraim of Bagalkot District during one of its seminar in Islamic Centre of Onaiza (Saudi Arabia) came in contact with Abdul Rehman and they became friends and prominent persons in the cadre of LeT.
10. Under the patronage of Abdul Rehman, Afsar Pasha of Bangalore wanted to go to Pakistan for training in explosives and arms for Jehadi and terrorist activities. However, the plan did not materialize.
11. In the year, 2001, Faisal, Abu Haza, Sherif, Altaf, Anwar, Zakaria, Abdul Rehman and others who are all Indian nationals and working in Saudi Arabia decided to collect funds and revenue for Jehadi activities in India.
12. Vali-Ur-|Rehman, resident of Bangladesh, who is chief of Jamat-ul-Mudauddin (JMU in Bangladesh) arranged the visit of Afsar Pasha to Bangladesh.
13. Afsar Pasha of Bangalore, went to Bangladesh in the early of 2002 where he stayed there for 8 months and also underwent training in handling weapons and explosives and manufacture of bombs, etc. Later he entered India illegally via West Bengal. Abdul Rehman during this period had sent money to Afsar Pasha towards the purchase of weapons and training expenses.
14. In the year 2002, Irfan Umri of Chennai was made Masood of AlGhasi and Abdul Rehman as his deputy. Both of them have conducted various religious programme to attract Muslims to the cadre of LeT.
15. During 2003, Zakaria returned back to India and he was arrested by Tamil Nadu Police for conspiracy of carrying out sabotage activities in Chennai. Later Abdul Rehman was made Masood in place of Irfan Umri in Saudi Arabia.
16. Abdul Rehman was visiting Nalagonda, Andhra Pradesh, frequently on the pretext of spending holidays, but was contacting Mehboob Ibrahim and Afsar Pasha and discussing about carrying out Jehadi and terrorist activities in Karnataka. Abdul Rehman appointed Mehboob Ibrahim of Bagalkot District for carrying out terrorist activities in Northern Karnataka and Afsar Pasha of Bangalore for Southern Karnataka.
17. During such visits in November 2003, Abdul Rehman visited Chintamani and met his associate Afsar Pasha and decided about setting up a Mosque of Ahle-Hadis at Chintakani and also promised for financial assets ****. Afsar Pasha and Afbdul Rehman also decided to ****** of LeT in Karnataka by recruiting youth from their community. Afsar Pasha introduced Noor, Irfan, Munna and others Abdul Rehman, Abdul Rehman as a chief of LeT South India. ***** all of them to engage themselves in Jehadi and terrorist activities.
18. Abdul Rehman went to Chennai and met Irfan and decided to set up a trust “Al-Fetah” for LeT activities and promised funds for the same.
19. During 2004, Abdul Rehman sent money to Afsar Pasha of Bangalore and Mehboob Ibrahim of Bagalkot through hawala transaction through one Chand Pasha of Bangalore.
20. The said Afsar Pasha of Bangalore and Mehboob Ibrahim of Bagalkot District were in constant touch with Abdul Rehman who was based in Saudi Arabia and vice-versa and further was reporting to him about the progress of the LeT activities.
21. Abdul Rehman instructed Afsar Pasha and Mehboob Ibrahim to undertake Jehadi and terrorists activities through sabotage in Karnataka. Abdul Rehman came to Nalagonda during October 2005 and instructed Afsar Pasha and Ibrahim to cause blast and damage to vital installations, Multi-national companies, etc. in Bangalore and other places of Karnataka.
22. Between 2003 to 2005 December, Abdul Rehman has recruited Afsar Pasha of Bangalore and Mehboob Ibrahim of Bagalkot into LeT cadre. Afsar Pasha was made incharge of LeT to look after South Karnataka and Ibrahim of Bagalkot District was made incharge of LeT to look after North Karnataka for causing sabotage activities. Afsar Pasha has recruited 4-5 persons, trained them in LeT activities and also taught them about the concept of Jehad, (so called holy war against nonmuslims). For this purpose during 2nd and 3rd week of December, 2005 they held secret conspiracy meeting in Tamil Sangam, Cubbon Park and Afsar Pasha’s house in Bangalore and other places in Karnataka and decided to cause bomb blasts in Bangalore. For this purpose they procured explosive materials, bomb, etc. and prepared themselves to use them to terrorize the citizen and create fear psychosis in the State by their terrorist activities.
23. In view of the above facts, it is evident that the above Accused persons viz. (1) Mohamed Razhur Rehman @ Abdul Rehman (2) Afsar Pasha of Bangalore (3) Ibrahim of Bagalkot District (4) Noor (5) Irfan (6) Munna and others of Karnataka who are the active members of banned militant organization LeT entered into a criminal conspiracy to cause large scale destruction of public property, multi-national companies etc. by causing bomb explosions, attacks on innocent people, large scale destruction of places of worships and promote enmity between different groups on the grounds of religion, race and perpetrated acts, prejudicial to the maintenance of communal harmony besides causing disaffection with overall object of attempt to being hatred, contempt and incite disaffection towards the Government by law established by desertion of places of worship, knowingly that such acts will result in breakdown of public order and the Accused have reported to have acquired and collected explosive substances and other necessary arms and ammunitions and conspired to wage war against the Union Government of India.
24. The information received by me constitutes cognizable offence U/s 120(b), 121, 121(A),1 122, 124(A), 153(a) and (b) of Indian Penal Code, 1860 and Section 5 and 6 of Explosive Substance Act, 1908 and Sections 25, 26 and 28 of Arms Act, 1959 and Sections 10, 11, 13, 16, 18, 19, 20 and 23 of Unlawful Activities Prevention Act, 1967.””
As we see, the Bench then observes in para 24 that, “Being aggrieved by the decision of the High Court, instant appeals by special leave have been preferred by Accused Nos. 5, 6, 1 and 4. As stated hereinabove, neither any appeal has been filed by A-2 and A-3 challenging their conviction nor any challenge is raised by the State against dismissal of its appeals. The scope of these appeals is thus confined to the challenge raised by Accused Nos. 5, 6, 1 and 4.”
As it turned out, the Bench then lays bare in para 25 that, “Special Leave Petitions preferred by A-5, A-6 and A-1, from which their appeals arise, came up on 21.10.2016, when notice was issued by this Court restricted to the question of sentence to be imposed on them. An affidavit sworn by A-1 on 28.11.2016, was thereafter filed submitting inter alia that he was 21 years of age when the offence was committed and if let out of jail on sentence undergone, he would support his family by earning an honest living, without causing any harm to fellow countrymen. Similar affidavits were filed by the other Accused. Later, the Special Leave Petitions of all the four accused came up on 28.04.2017, when the Court called for a report from the National Investigation Agency. Thereafter, by order dated 31.1.2018, Special Leave to Appeal was granted by this Court, leading to registration of these appeals.”
Be it noted, the Bench then notes in para 34 that, “If the facts on record are considered, it emerges:-
a) On 10.12.2003, when a meeting was organised at the house of Firoz at Chintamani, it was attended by A-1, A-2, A-4 and A-6 along with other members including some of the Prosecution witnesses.
b) The minutes of the meeting, as set out in paragraph 17 of the decision of the Trial Court, disclosed the intent and the objective with which the materials, such as guns and bombs were to be procured or collected.
c) The signatures appended below the minutes were proved by PW-67, Syed Asgar Imam, Hand Writing Expert.
d) The presence of A-1 in Chintamani on the day in question was completely established. His presence assumes significance as he was not a local person.
e) The presence of A-1 on the day in question was adverted to by some of the Prosecution witnesses. It is true that apart from these pieces of evidence, nothing substantial could be pointed against A-1 but his involvement in the scheme as one of the driving forces for the entire design, was quite evident.
f) The intent and objective disclosed from the minutes of the meeting was carried forward in the subsequent meetings.
g) The recoveries made from and at the instance of the other accused show that the very intent and object as discussed in the first meeting was being carried forward by these accused with the acquisition and possession of the arms and ammunition.
h) The kind of material recovered from them by itself shows the potential danger. Nothing was brought on record to show the reason or the purpose for acquisition and possession of such potentially dangerous material.
These facts not only show that the basic elements of the conspiracy stood well established but also proved the involvement of A-1. Going by the law laid down by this Court, A-1 cannot escape the liability only on the ground that no arms and ammunition or any inflammatory material or literature were actually recovered from him.”
To be sure, the Bench then specifies in para 40 that, “As the text of the relevant Section shows, persons who plan to overawe the Central or the State Government by criminal force or show of criminal force would be guilty of offence of entering into conspiracy in terms of Section 121A of the IPC. The dictionary meaning of the expression “overawe” is to subdue or inhibit with a sense of awe (The Concise Oxford English Dictionary). The expression “overawe” would thus imply creation of apprehension or situation of alarm and as rightly held by the Division Bench, it would not be necessary that the danger should be one of assassination of or of bodily injury to the members of the machinery or apparatus of the Government but the danger might as well be to public property or to the safety of members of the general public.”
Most significantly, the Bench then holds in para 41 what forms the cornerstone of this notable judgment stating that, “The conspiracy in the instant case, the intent of which was clear from the minutes of the meetings and the consequential acquisition of arms and explosives to effectuate the purpose and intent of said conspiracy, would thus come well within the latter part of the conspiracy dealt with in Section 121A of the IPC. As the explanation to Section 121A of the IPC discloses, for an offence of conspiracy, it would not be necessary that any act or illegal omission must take place in pursuance thereof. Thus, even though no untoward incident had actually happened as a result of the conspiracy, the matter would still come within the four corners of Section 121A of the IPC. The conviction recorded against the accused under Section 121A of the IPC does not therefore call for any interference.”
What’s more, the Bench then candidly states in para 42 that, “We may now turn to the submission based on Section 120-B read with Section 116 of the IPC. Section 120-B of the IPC would apply only when “no express provision is made in this regard for the punishment of such a conspiracy”. Since an express provision for particular kind of conspiracy is dealt with specifically in Section 121A of the IPC, the provision contained in Section 120- B of the IPC would have no application. The submission, therefore, merits rejection.”
Most remarkably, the Bench then minces no words to hold upfront in para 43 that, “The last submission was that there was no occasion for the High Court to enhance the quantum of punishment from seven years which was awarded by the Trial Court to that of life imprisonment for the offence punishable under Section 121-A of the IPC.
We have given serious consideration to this submission. The conspiracy as disclosed in the instant matter, if it had been carried out, would have resulted in great damage and prejudice to the life and well-being of the members of the general public as well as loss to the public property. Such conspiracies to cause danger to public property or to the safety of the members of the general public ought to be dealt with strictly. Considering the acquisition of substantial quantity of arms and explosives as well as the intent disclosed by diary Exh. P-92, and other materials on record, the High Court was right in enhancing the sentence after accepting the appeal preferred by the State in that behalf.”
Finally, the Bench then concludes by holding in para 44 that, “In the circumstances, we do not find any merit in the appeals preferred by the Accused and as such all the appeals are dismissed.”
In a nutshell, we thus see that the Apex Court very rightly upholds the life sentence in IISc terror attack case. It is also made indubitably clear by the top court that assassination or bodily injury is not at all necessary to invite punishment for the offence under Section 121A of IPC. Very rightly so!