AUTHOR: BHAWNA SINGLA, GURU NANAK DEV UNIVERSITY, AMRITSAR.
The 2008 Mumbai attack was a series of terrorist attacks that terrified and shook every citizen of the Nation. In November 2008, the attack covered a variety of places like the Taj Mahal Palace, the Taj hotel, the Oberoi Trident hotel, the Metro Theatre, and the Chhatrapati Shivaji terminus railway station. It was marked that 10 members of Lashkar-e-Toiba illegally landed in Mumbai city from Karachi via the Arabian sea for a fidayeen attack in India.
In this terrorist attack, Kasab who was a Pakistani national along with Ansari and Sheikh, who were residing in Bihar, were majorly and actively involved along with nine deceased and thirty-five wanted accused.
A conspiracy was hatched in Pakistan for terrorist attacks in India during the period of December 2007 to November 2008 such as to wage wars against the Government of India, abetment to murder, conspiracies to commit murder, and many other such offenses to liberate Kashmir.
The accused collected the arms and ammunition outside India to achieve the objective of conspiracy during the training. They were prepared for every consequence. Before the attack, it was told to them that, “It is time for jihad and Kashmir can only be acquired after waging war against the Government of India.” The main target was to attack big cities of India and weaken India from inside and after the attack, they could get a place in heaven as observed by the jihadis. Kasab and the other nine terrorists killed approximately one hundred sixty-six people. About two hundred thirty-eight people were injured and property worth millions was destroyed in the vehement attack.
• Whether the appellant got a free and fair trial under Article 21 of the Indian Constitution of India before his conviction?
• Whether the appellant confessed without any inducement under Section 164 of CrPC?
Indian Penal Code, 1860
§ Section 34 – Acts done by several persons in furtherance of common intention,
§ Section 109 – Punishment of abetment if the act abetted is committed in consequences and where no express provision is made for its punishment,
§ Section 120B - Punishment of criminal conspiracy,
§ Section 121 – Waging, or attempting to wage war, or abetting waging of war, against the Government of India,
§ Section 121A - Conspiracy to commit offenses punishable by section 121,
§ Section 122 – Collecting arms, etc., with intention of waging war against the Government of India,
§ Section 123 - Concealing with intent to facilitate design to wage war,
§ Section 124 – Assaulting president, governor, etc., with intent to compel or restrain the exercise of any lawful power,
§ Section 124A – Sedition,
§ Section 125 – Waging war against any Asiatic Power in alliance with the Government of India,
§ Section 126 – Committing depredation on territories of Power at peace with the Government of India,
§ Section 302 - Punishment for murder,
§ Section 307 - Attempt to murder,
§ Section 324 – Voluntarily causing hurt by dangerous weapons or means,
§ Section 341 - Punishment for wrongful restraint,
§ Section 342 - Punishment for wrongful confinement,
§ Section 347 - Wrongful confinement to extort property, or constraint to an illegal act,
§ Section 364 - Kidnapping or abducting to murder
Criminal Procedure Code, 1973
§ Section 161 - Examination of witnesses by police,
§ Section 162 - Statements to police not to be signed: use of statements in evidence,
§ Section 163 - No inducement to be offered,
§ Section 164 - Recording of confessions and statements,
§ Section 173 - Report of the police officer on completion of investigation,
§ Section 229 - Conviction on a plea of guilty
Indian Evidence Act, 1872
§ Section 3 – Interpretation clause,
§ Section 5 - Evidence may be given of facts in issue and relevant facts,
§ Section 7 - Facts which are occasion, cause, and effect of facts in issue,
§ Section 16 - Existence of course of business when relevant,
§ Section 24 - Confession by inducement, threat or promise when irrelevant in criminal proceeding,
§ Section 27 - How much of information received from accused may be proved,
§ Section 35 – Relevance of entry in public [record or an electronic record] made in the performance of duty,
§ Section 45 - Opinions of experts,
§ Section 60 - Oral evidence must be direct,
§ Section 65B - Admissibility of electronic records
The Constitution of India, 1950
§ Article 20(3) – Self-incrimination,
§ Article 21 - Protection of life and personal liberty,
§ Article 22 - Protection against arrest and detention in certain cases,
§ Article 39A - Equal justice and free legal aid
Along with the above-mentioned statutes, the accused persons were also held liable for offenses under:
Ø Arms Act, 1959
Ø Unlawful Activities (Prevention) Act, 1967
Ø Explosive Act, 1884
Ø Explosive Substances Act, 1908
Ø Passport Act, 1920
Ø Prevention of Damage to Public Property Act, 1984
Ø Railways Act, 1989
Ø Customs Act, 1962
Ø Foreignness Act, 1946
While coming to a decision, the Hon’ble Court delved upon previous cases on this matter: -
• While presenting the arguments, Mr. Ramchandran, the counsel of Appellant, contended that the appellant did not get the free trial and the right to a fair trial guaranteed under Article 21 of the Constitution of India was vehemently violated. The appellant was not aware of his constitutional right to counsel under Article 22 (1) Constitution of India at the time of his arrest and while producing before a judicial magistrate. In reply, Mr. Subramanium submitted that right of legal assistance to be exercised by the person arrested and all rights of the Appellant were secured under sec. 161 to 164 of CrPC. The Hon’ble Court contented that Kasab was provided with basic procedural rights as guaranteed in Article 21 of the constitution of India.
Nandini Sathpathy v. P. L. Dani, 1978
The sense of Art. 22 (1) is that it is a fundamental rule of law and the services of a lawyer shall be available for the consultation to any accused person under the circumstances of 'near-custodial interrogation’. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his or her choice.
The Hon’ble Court also contended that when a lawyer of his choice is not available, the police can then produce him to a magistrate or take him to a doctor or his family so that he can unburden himself from the inducement. Kasab got a competent counsel even after the Mumbai Bar Association passed a resolution that none of its members would defend the appellant. So, we can conclude that the appellant did get a fair trial. Further, it was contended that the appellant also received free legal aid under article 39A of the Indian Constitution. Thus, none of his rights were violated.
• Mr. Ramchandran also submitted that the appellant was not aware of his constitutional right against self-incrimination under Article 20 (3) of the Constitution of India. The confession made by the appellant undoubtedly satisfied the requirements under Section 164 of CrPC but did not satisfy higher Constitutional standards. The counsel for Appellants pressed that the Magistrate did not tell the appellant about the right to remain silent and he was not duty-bound to confess. On this, Mr. Subramanium, while summing up his submissions, made voluntary statements with free will. The appellant was kept under judicial custody so that he can unburden himself. It was made clear by the appellant during confession that he was not under any inducement.
Miranda v. Arizona, 1996
In this case, the USA Court said that an accused must be warned before any questioning that he has the right to remain silent, that anything he says can be used against him in a court, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one attorney will be appointed for him before any questioning if he so desires."
The court put aside the Miranda guidelines and contented that these guidelines did not have an application over the Indian legal system. The Hon’ble Court rejecting the arguments and pointed out that the Appellant had the right to remain silent and firm protections against self-incrimination were made available to the accused.
The court noticed the Section 25 and Section 26 of the Indian Evidence Act and referred the decision of the Supreme Court of India in case of Sarwan Singh v. State of Punjab.
Sarwan Singh v. State of Punjab, 1976
"To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a Magistrate. It would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should confess."
The appellant was produced before a Magistrate within 24 hours and was kept in judicial custody for about two to three days before confession. Moreover, Section 161, Section 162, Section 163, Section 164 of CrPC were designed to afford protection against self-incrimination.
• The Appellant wrote a letter to the Pakistani authorities to provide him a legal aid as he did not want an Indian lawyer for his defense. However, the Pakistani authorities did not reply to his plea and thus, the Indian authorities, despite his charges including the death penalty, provided him with free legal aid. Mr. Pawar was appointed as junior counsel to represent the appellant. Ms. Anjali Waghmare was chosen to represent the appellant but the fact of her representation to the victims of the terrorist attack in separate proceedings came into light, and thus the trial Judge revoked the appointment of Ms. Anjali Waghmare. After many discussions, the Court settled with Mr. Abbas Kazmi for representation. Mr. Ramachandran contended that the Court did not provide a Pakistani lawyer as demanded by the Appellant for the case. The Hon’ble Court submitted that in such circumstances, the demand of a Pakistani lawyer’s representation cannot be fulfilled as Pakistani authorities denied the appellant as a Pakistani citizen. The appellant, thereafter, agreed to the legal aid from Indian lawyers.
Thus, the Hon’ble Supreme Court of India was in concurrence with the judgments of the Trial Court and the Hon’ble High court and subsequently gave death penalty to the appellant under Section 120B (conspiracy) of the Indian Penal Code, 1860, read with Section 302 (murder) of the Indian Penal Code for conspiracy to commit murder, Section 121 of the Indian Penal Code for waging war against the Government of India, Section 16 of the Unlawful Activities (Prevention) Act, 1967, Section 302 of the Indian Penal Code for murdering seven people, Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code and Section 302 of the Indian Penal Code read with Section 109 of the Indian Penal Code and Section 120-B of the Indian Penal Code, 1860.
Every person has a right to get a free and fair trial under Article 21 of the Constitution of India, 1950. Mr. Kasab was given free legal aid from India. His confession was recorded without any inducement from any authorities and gave his confession with free will. His confession was recorded by a Judicial Magistrate under Section 164 of CrPC. Even though Mr. Kasab was a Pakistani national, he first approached the Pakistani authorities for legal aid, however, the authorities failed to recognize him as a Pakistani national. After committing several heinous offenses, he was able to get a fair procedure and a fair trial.