Red Fort attack case: SC issues notice on LeT terrorist’s curative plea

Arif was convicted in the case and sentenced to death on October 31, 2005. This was confirmed by the Delhi High Court in September 2007 and by the Supreme Court in August 2011. He then filed a review petition, which was rejected by a bench of two judges. The top court also dismissed his curative petition challenging the rejection of the review petition.

Arif then filed a fresh writ petition praying that his review petitions should have been heard by a bench of three judges and in open court.

Hearing this, a Constitution bench of the Supreme Court decided in September 2014 that henceforth, all death sentence cases will be heard by a three-judge bench in open court. Accordingly, his review petition was heard again by a three-judge bench.

The review plea challenged the trial court, relying on call data records as evidence, saying the records were not accompanied by an appropriate certificate under Section 65B of the Indian Evidence Act, 1872, which deals with the admissibility of electronic records as evidence in court.

Dismissing it on November 3, 2022, the Supreme Court’s three-judge bench said that even after eschewing the findings on the basis of the call data records, “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”.

It said his disclosure statement was also proved, and it had led the police to the hideout at G-73, Batla House, New Delhi, and that when the police team arrived with him, they were fired at.

“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,” the bench said.

On the request to consider the mitigating circumstances and possibility of rehabilitation, the court said: “…the cumulative effect of the aggravating factors and the mitigating circumstances must be taken into account before the death sentence is awarded.”

“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,” it had said.