LexSHAUKAT HUSSAIN GURU versus STATE (NCT) DELHI & ANR.
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[2008] 8 S.C.R. 843 SHAUKAT HUSSAIN GURU A v. STATE (NCT) DELHI & ANR. (Writ Petition (Criminal) No. 106 of 2007) MAY 14, 2008 B [P.P. NAOLEKAR AND V.S. SIRPURKAR, JJ.] ~ -+ Penal Code, 1860; S. 123: Conviction in absence of framing of charge - Justifica- tion of - Parliament attack case - Designate. Judge awarded c death sentence to accused petitioner under the provisions of POTA, /PC and Explosive Substances Act -Affirmed by High Court - Appeal against, partly allowed by Supreme Court al- teiing conviction of petitioner to one uls. 123 /PC and sen- fenced him to undergo rigorous imprisonment of 10 years - D I j Review petition as also Curative Petition dismissed by Su- preme Court - Challenge to - Held: Judgment of Supreme Court cannot be assailed invoking Article 32 of the Constitu- tion - Supreme Court has specifically dealt with the question about punishment of accused u/s. 123 even without framing E the charge and held that he is not handicapped by the ab- sence of the charge uls. 123 /PC - Evidence on record also iustifies his conviction under s. 123 /PC - Moreover, s. 222 -- Cr.PC. empowered the Court to convict an accused for com- mnting offence without framing of charge if, it was a minor of- F fence - On "facts Supreme Court convicted him for commit- ting the offence uls.123 /PC which is a minor offence to the offences of which he faced trial - Prosecution successfully proved the necessary ingredients of s. 123 /PC - Since the defence was available to him even u/s.121, 121A and 122 IPC, G > of which he had been charged with, he cannot claim that be- ' cause of non-framing of charge uf.s.123 /PC he was prejudi- cial/y affected as deprived of opportunity of raising the defence available to him -Hence, conviction of petitioner uls. 123 /PC, 843 H 844 SUPREME COURT REPORTS [2008] 8 S.C.R. A without framing the charge, justified - Review Petition as also curative petition raising such plea have been dismissed by the Supreme Court - No ground found to entertain the peti- tion u/Article 32 of the Constitution - Constitution of India, 1950-Artic/es 21 and 32- Code of Criminal Procedure, 1973 B - Ss. 39 and 222. Petitioner, one of the accused in Parliament attack case, filed a writ petition praying for issuance of writ of habeas corpus to bring him before the Court and to re- lease him on the ground that his continued detention C would be in violation of the fundamental right as guaran- teed ulArt. 21 of the Constitution. Earlier, the petitioner was tried with other accused persons by the Designated Judge u/s. 3(2), (3), (4) and (5), 4(b) of the Prevention of Terrorist Act, Ss.121, 121A, 122, 302 rlw s.1208 and s.307 D rlw s.1208 IPC and s.3 of the Explosive substances Act. The Court found the petitioner and two others guilty of committing the offences as charged and awarded death sentence uls. 302 rlw s.1208 IPC and s.3(2) of POTA and the Explosive Substances Act. Appeal filed by the peti- E tioner was dismissed by the High Court. Appeal filed thereagainst by the petitioner was partly allowed by this Court altering his conviction to one u/s. 123 IPC and sen- tenced him to undergo imprisonment of 10 years. Ag- grieved by the order of this Court convicting him uls.123 F IPC without framing the charge, a Review Petition was filed by the petitioner. The Review Petition as also the Curative Petition which was filed later, were dismissed by this Court. Hence the present writ petition. Petitioner contended that as his conviction was al- G tered to one uls.123, without framing any charge, he was denied an opportunity to prove the fact that he had a rea- _.... sonable excuse for not informing the nearest Magistrate or police officer of the commission of the offence of which he along with other accused were charged of or their in- H tention to commit an offence, nor he was given an oppor- SHAUKAT HUSSAIN GURU v. STATE (NCT) 845 DELHI & ANR. tunity to prove the fact that in fact he gave information to A the nearest Magistrate or police officer of the commission of the offence or intention to commit an offence of con- spiracy he was charged of; that the offence under Sec- tion 123 IPC is not a minor offence of the charged of- fences, for the court to exercise the powers under Sec- B tion 222 of the Cr.P.C.; and that the petitioner has not been heard nor was given an opportunity to meet the charge .... under Section 123 IPC at the trial nor in the appea
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