While displaying absolute zero tolerance towards terrorism and terrorists, the Apex Court as recently as on November 3, 2022 in a most learned, laudable, landmark and latest judgment titled Mohd Arif @ Ashfaq vs State (NCT of Delhi) in Review Petition (Crl.) Nos. 286-287 of 2012 in Criminal Appeal Nos. 98-99 of 2009 and cited in 2022 LiveLaw (SC) 902 in exercise of its inherent jurisdiction has affirmed the death penalty awarded to Lashkar-e-Toiba militant named Mohammed Arif for the 2000 Red Fort attack case which resulted in the death of three persons including two army officers. The Court dismissed the review petition filed by him challenging his conviction and sentence.

The Bench of Apex Court comprising of Chief Justice of India (CJI) UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi without mincing any words observed that when there is challenge to the unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances. The Court added that this factor completely outweigh the factors which may even remotely be brought into consideration as mitigating circumstances on record.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr CJI Uday Umesh Lalit for a Bench of Apex Court comprising of himself, Hon’ble Mr Justice S Ravindra Bhat and Hon’ble Mr Justice Bela M Trivedi sets the ball rolling by first and foremost putting forth in para 1 that:
These review petitions arise out of the judgment and order dated 10.8.2011 Mohd. Arif alias Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 passed by this Court in Criminal Appeal Nos. 98- 99/2009.

To put things in perspective, the Bench then envisages in para 2 that, According to the prosecution, on the night of 22.12.2000 some intruders entered the area where the Unit of 7 Rajputana Rifles of the Indian Army was stationed inside the Red Fort, New Delhi. In the firing that was opened by the intruders, three Army jawans lost their lives. The intruders then left by scaling the rear side boundary wall of the Red Fort.

This led to the lodging of FIR No. 688/2000 registered with Kotwali Police Station, New Delhi in respect of offences punishable under Sections 302, 307, 186, 353, 120-B, 121, 121-A, 216 and 201 of the Indian Penal Code, 1860 (IPC for short) read with Sections 25, 27, 54 and 59 of the Arms Act, 1959, Section 14 of the Foreigners Act, 1946, Sections 4 and 5 of the Explosive Substances Act, 1908 and Sections 420, 468, 471, 474 and 34, IPC. In the investigation, the involvement of the present review petitioner was made out.

As it turned out, the Bench then states in para 3 that:
The review petitioner, who was tried for said offences, was awarded death sentence vide judgment and order dated 31.10.2005 passed by the Court of Additional Sessions Judge, Delhi in Sessions Case Nos. 1/2005, 2/2005, 5/2005, 7/2005, 8/2005, 9/2005, 10/2005 and 11/2005, which arose out of the aforestated FIR. The award of death sentence was subject to confirmation by the High Court.

As we see, the Bench then observes in para 4 that:
The matter was thereafter considered by the High Court in Death Sentence Reference No. 2/2005 with Criminal Appeal Nos. 891/2005, 892/2005, 907/2005, 927/2005, 944-945/2005, 946/2005, 273/2006 and 504/2006. The view taken by the trial Court was affirmed by the High Court vide its judgment dated 13.9.2007 (2007) SCC Online Del 1259.

Going ahead, the Bench then mentions in para 5 that:
The matter then reached this Court in the form of Criminal Appeal Nos. 98-99/2009 at the instance of the review petitioner. However, the challenge was negated by this Court and the award of death sentence to the petitioner was affirmed vide judgment dated 10.8.2011, which has resulted in filing of the instant review petitions.

It must be noted that the Bench then discloses in para 6 that:
The instant review petitions had initially come up before the Bench of two Judges and by order dated 28.8.2012, the review petitions were dismissed. Curative Petition (Crl.) Nos.99- 100/2013 filed by the review petitioner sought to challenge the view taken by the Division Bench of this Court in dismissal of the appeals, as well as, the review petitions. However, the curative petitions were also dismissed by this Court vide order dated 23.1.2014.

What we then see is that the Bench reveals in para 7 that:
Soon thereafter, Writ Petition (Crl.) No. 77/2014 was preferred by the review petitioner submitting inter alia, that the review petitions in matters arising out of award of death sentence be heard by a Bench of three Judges and in open Court. The Constitution Bench of this Court by its judgment dated 2.9.2014 [Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2014) 9 SCC 737] concluded that in all cases in which death sentence was awarded by the High Court, such matters be listed before a Bench of three Judges. The relevant observations in paragraph 39 were as under:

39. Henceforth, in all cases in which death sentence has been awarded by the High Court in appeals pending before the Supreme Court, only a bench of three Hon'ble Judges will hear the same. This is for the reason that at least three judicially trained minds need to apply their minds at the final stage of the journey of a convict on death row, given the vagaries of the sentencing procedure outlined above. At present, we are not persuaded to have a minimum of 5 learned Judges hear all death sentence cases. Further, we agree with the submission of Shri Luthra that a review is ordinarily to be heard only by the same bench which originally heard the criminal appeal.

This is obviously for the reason that in order that a review succeeds, errors apparent on the record have to be found. It is axiomatic that the same learned Judges alleged to have committed the error be called upon now to rectify such error. We, therefore, turn down Shri Venugopal’s plea that two additional Judges be added at the review stage in death sentence cases.

No doubt, the Bench then rightly stipulates in para 8 that:
A question still arose: whether in matters where the review petitions had already stood rejected when the aforementioned decision was rendered by the Constitution Bench of this Court, could there be reopening of the matter and the review petition be reheard? A subsequent Constitution Bench in its order dated 19.1.2016 Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2019) 9 SCC 404 observed as under: -

9.In the circumstances therefore and especially in view of the fact that the petitioner is perhaps the only person that will suffer the denial of the right to an open court hearing, we are inclined to modify the judgment on review and direct that the petitioner shall also be entitled to seek reopening of the dismissal of the review petitions for an open court hearing within one month from today. We permit the petitioner to raise all such additional grounds in support of the said review petition as may be legally permissible to him.

Needless to say, the Bench then states in para 9 that:
In this backdrop, the instant review petitions are listed before us for rehearing.

Be it noted, the Bench then mentions in para 25 that:
If we consider the circumstances which were culled out by this Court in Paragraph 182 of the judgment under review, circumstances mentioned at Serial Nos. ‘h’ and ‘j’ become extremely weak as the tracing of calls received by PWs 39 and 41 to Mobile Phone No.9811278510 was possible only through CDRs. These circumstances must not, therefore, be taken into account.

It would be worthwhile to mention that the Bench then specifies in para 26 that, However, the other circumstances stated in said paragraph 182 as well as in subsequent paragraphs remain completely unaffected. As was stated by this Court in paragraphs 151, 153, 159, 169 and finally summed up in paragraphs 183 and 184, the findings on the issue of the receipt and disbursal of money and the fact that the police could reach the spot referred to in Paragraph 184, at the instance of the review petitioner are very relevant and crucial circumstances.

One of the important circumstances is also the feature referred to in circumstance ‘o’ in Paragraph 182 as stated above. In conclusion, it must therefore be observed that even after eschewing circumstances ‘h’ and ‘j’ which were directly attributable to the CDRs relied upon by the prosecution, the other circumstances on record do clearly spell out and prove beyond any doubt the involvement of the review petitioner in the crime in question.

More to the point, the Bench then holds in para 27 that:
We now turn to grounds (b), (c) and (d) raised on behalf of the review petitioner as stated in para 12 supra. Grounds ‘b’ and ‘c’ are purely factual in nature. The disclosure statement, as a matter of fact, was held to have been proved by the Courts below and this Court. In our review jurisdiction, it will not be possible to enter into questions regarding admissibility of such disclosure statement on issues of fact.

The disclosure statement led the police to the hide out at G-73, Batla House, New Delhi and when the police team arrived with the review petitioner, there was firing upon the police team as stated in circumstance ‘g’ in paragraph 182. After the person concerned named Abu Shamal alias Faisal died in the encounter, certain fire arms and ammunition were recovered. The submission that such recovery of ammunition or the encounter of Abu Shamal could not be associated with the disclosure statement of the review petitioner is not quite correct. We therefore reject both the grounds taken in ‘b’ and ‘c’ as referred to in Para 12 supra.

Briefly stated, the Bench then observes in para 29 that:
The decisions referred to in the Written Submissions show that when there is challenge to the unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances. It is well accepted that the cumulative effect of the aggravating factors and the mitigating circumstances must be taken into account before the death sentence is awarded.

In Vasanta Sampat Dupare vs. State of Maharashtra (2017) 6 SCC 631 , while dealing with a case, where death sentence was awarded in a crime relating to offences punishable under Sections 302, 363, 367, 376(2)(f) and 201 of the IPC, this Court had observed that the aggravating circumstances had clearly outweighed the mitigating circumstances.

Most significantly, the Bench then holds in para 30 that:
Coming back to the instant case, there is nothing on record which can be taken to be a mitigating circumstance in favour of the review petitioner. The suggestion that there is a possibility of retribution and rehabilitation, is not made out from and supported by any material on record. On the other hand, the aggravating circumstances evident from the record and specially the fact that there was a direct attack on the unity, integrity and sovereignty of India, completely outweigh the factors which may even remotely be brought into consideration as mitigating circumstances on record. The submission so advanced under ground (d) does not merit any acceptance and is, therefore, rejected.

Finally, the Bench then concludes by holding in para 31 that:
Consequently, we do not find any merit in the instant review petitions, which are accordingly dismissed.

In short, we thus see that the Apex Court very rightly affirms the death penalty for the LeT militant Mohammad Arif for the 2000 Red Fort attack case. The Apex Court has displayed zero tolerance policy on terror attack on Red Fort in this case and accorded reasons also. The Apex Court clearly pointed out that:
34. No ground for review of the Death Sentence is made out as the three tests stand fully satisfied. All three Courts have recorded elaborate reasons for why the present case was one which warranted the death sentence, and have considered the crime, the criminal and whether the case could be said to be the rarest of the rare.

1. This Hon’ble Court has recorded elaborate findings in the judgment presently under review on sentencing as to why the present case satisfies all three tests including the rarest of the rare test. Firstly, this Hon’ble Court found that the nature of the crime, being an attack on the Red Fort, was nothing short of an attack on Mother India itself, secondly, that so far as the nature of the criminal was concerned, no mitigating circumstances of any kind had been brought on record and thirdly, that the nature of the crime, the fact that it was a planned pre-meditated attack on a symbol of the seat of power of the Government of India warranted nothing short of the highest punishment. The Court held:

213. This was, in our opinion, a unique case where Red Fort, a place of paramount importance for every Indian heart was attacked where three Indian soldiers lost their lives. This is a place with glorious history, a place of great honour for every Indian, a place with which every Indian is attached emotionally, and a place from where our first Prime Minister delivered his speech on 15-8-1947, the day when India broke the shackles of foreign rule and became a free country. It has since then been a tradition that every Hon’ble Prime Minister of this country delivers an address to the nation on every 15th August to commemorate that great event. This fort was visualised and constructed by the Mughal Emperor Shahjahan who is known as Shahjahan the builder. It took nine years for its completion.

It was here that Shahjahan ascended the throne on 18-4-1648 amidst recitation of sacred aayates of Holy Quran and mantras from Hindu scriptures. The great historical monument thereafter saw the rule of number of Mughal Emperors including Aurangzeb. It also saw its most unfortunate capture by Nadir Shah. It was in 1837 that the last Mughal Emperor Bahadur Shah Zafar II took over the throne.

214. It must be remembered that it was during the empire of Bahadur Shah Zafar II that the First War of Independence was fought. Red Fort became the ultimate goal during that War of Independence which broke out in the month of May 1857. The Fort breathed free air for a brief period. But ultimately in the month of September 1857, it was captured by the British. Red Fort is not just one of the several magnificent monuments that were built by the Mughal emperors during their reign for nearly three centuries.

It is not just another place which people from within and outside the country visit to have a glimpse of the massive walls on which the Fort stands or the exquisite workmanship it displays. It is not simply a tourist destination in the capital that draws thousands every year to peep and revel into the glory of the times bygone.

Its importance lies in the fact that it has for centuries symbolised the seat of power in this country. It has symbolised the supremacy of the Mughal and the British empires just as it symbolises after Independence the sovereignty of the world's largest democratic republic. It is a national symbol that evokes the feelings of nationalism amongst the countrymen and reminds them of the sacrifices that the freedom fighters made for the liberation of this country from foreign rule.

215. No wonder even after the fall of the Fort to the British forces in the First War of Independence in 1857 and the shifting of the seat of power from Red Fort to Calcutta and later to New Delhi, Pt. Jawahar Lal Nehru after his historic Tryst with Destiny speech unfurled the tricolour from the ramparts of Red Fort on 15-8-1947. That singular event symbolised the end of the British rule in this country and the birth of an independent India.

An event that is relived and re-acted every succeeding year since 1917, when every incumbent Prime Minister addresses the nation from atop this great and historic Fort reminding the countrymen of the importance of freedom, the need for its preservation and the values of constitutional democracy that guarantees the freedoms so very fundamental to the preservation of the unity and integrity of this country.

216. An attack on a symbol that is so deeply entrenched in the national psyche was, therefore, nothing but an attack on the very essence of the hard-earned freedom and liberty so very dear to the people of this country. An attack on a symbol like Red Fort was an assault on the nation’s will and resolve to preserve its integrity and sovereignty at all costs. It was a challenge not only to the army battalions stationed inside the monument but the entire nation. It was a challenge to the very fabric of a secular constitutional democracy this country has adopted and everything that is good and dear to our countrymen.

It was a blatant, brazenfaced and audacious act aimed to overawe the Government of India. It was meant to show that the enemy could with impunity reach and destroy the very vitals of an institution so dear to our fellow countrymen for what it signified for them. It is not for no reason that whosoever comes to Delhi has a yearning to visit Red Fort. It is for these reasons that this place has become a place of honour for Indians.

217. No one can ever forget the glorious moments when the Indians irrespective of their religions fought their First War of Independence and shed their blood. It was, therefore, but natural for the foreigner enemies to plan an attack on the army specially kept to guard this great monument. This was not only an attack on Red Fort or the army stationed therein, this was an arrogant assault on the self-respect of this great nation. It was a well thought out insult offered to question the sovereignty of this great nation by foreign nationals. Therefore, this case becomes a rarest of the rare case.

This was nothing but an undeclared war by some foreign mercenaries like the present appellant and his other partner in conspiracy Abu Shamal and some others who either got killed or escaped. In conspiring to bring about such kind of attack and then carrying out their nefarious activities in systematic manner to make an attack possible was nothing but an attempt to question the sovereignty of India. Therefore, even without any reference to any other case law, we hold this case to be the rarest of the rare case.

…

223. …..During the whole debate the learned defence counsel did not attempt to bring any mitigating circumstance. In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators had no place in India.

The appellant was a foreign national and had entered India without any authorisation or even justification. This is apart from the fact that the appellant built up a conspiracy by practising deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of the Indian Army.

We, therefore, have no doubts that death sentence was the only sentence in the peculiar circumstance of this case. It thus merits no reiteration that all those individuals who ever dare to resort to such ghastly terror attacks must now fully understand that Supreme Court will certainly not display any iota of generosity towards them and they would have to definitely face the strictest punishment that is permissible under the law of the land! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh