Citing “a glaring example of lack of competence and sincere efforts” on the part of the prosecution, a Division Bench of the Allahabad High Court has set aside the life imprisonment sentence given by a sessions court to an alleged Jaish-e-Mohammad (JeM) operative and Pakistan national, Mohammad Waris alias Raja, and a resident of Muzaffarnagar, Ashfaq alias Nannhey, on the grounds that the required sanction for prosecution in the case was not obtained from the government.
The High Court, however, upheld the sentence awarded to the Pakistani national under Foreigners’ Act that entails three years imprisonment, and the Muzaffarnagar resident under Arms Act and Foreigners’ Act for which he was sentenced to three years and two years, respectively.
Police had arrested Waris from Ashfaq’s house at Jaula village in Muzaffarnagar in March 2000. Police had then claimed that Waris was a member of the JeM terror group and claimed to have recovered weapons and hand grenades from Ashfaq’s house.
The two were booked under IPC sections 121 (waging, or attempting to wage a war against the Government of India), 121-A (conspiracy to commit offences punishable by section 121), 122 (collecting arms with an intention of waging a war against the Government of India) and 123 (concealing with intent to facilitate design to wage a war). Police had also invoked section 13/14 of the Foreigners’ Act, section 3 of the Passport Act and the Arms Act against them.
Three more local residents — Gayur, Mustaqeem and Sardar Ali — were also arrested as co-accused in the case.
In May 2007, a local court of Muzaffarnagar awarded life imprisonment to Waris and Ashfaq, while it acquitted Gayur, Mustaqeem and Sardar Ali.
Waris was convicted under IPC sections 121, 121-A, 122, 123 and the Foreigners’ Act, while Ashfaq was convicted for the same charges and also under the Arms Act.
Later, Waris and Ashfaq filed an appeal from the jail in the High Court, challenging the judgment on the grounds that their prosecution and trial under IPC sections 121, 121-A, 122 and 123 was illegal and without jurisdiction as no sanction under section 196 of the CrPC was obtained either from the Central government or the state government.
On their appeals, the High Court on August 5 gave its judgment setting aside their conviction under IPC sections 121, 121-A, 122 and 123, Additional Government Advocate, Udit Chandra, said.
In their judgment, Justice Sudhir Agarwal and Justice Rajendra Kumar observed, “…this case is a glaring example of lack of competence, knowledge and sincere efforts on the part of officers responsible for prosecution and that too in a matter which is so serious, as the present one. In a most clandestine and causal manner, the prosecution has commenced an investigation and proceeded. Even the specific requirement of the statute has been given a go by and completely ignored. Whether it was due to lack of knowledge of officers of prosecution or sheer negligence is a matter of inquiry but evidently, show their incompetence.”
The Bench, which has sent the record to the trial court for compliance, also observed, “From our experience, while dealing with criminal appeals arising day-to-day before this court, we have no hesitation in observing that frequently it is incompetence of investigation and prosecution authorities, which is causing such lapses, as a result whereof in many serious matters, accused persons, who are otherwise on the basis of evidence have been rightly and justifiably convicted and sentenced, derive advantage of non-compliance of statutory provisions pertaining to previous sanction etc and escape the punishment”.
The court also directed to send a copy of the order to Principal Secretary (Home) and Legal Remembrancer to look into the observation made by the High Court and take appropriate action.
AGA Chandra said that they would file an appeal against the High Court judgment in the Supreme Court.
Waris is currently lodged at Bareilly Central Jail, while Ashfaq is lodged at Agra Central Jail.
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