This article has been written by Ms. Kamini, a 3rd Year LL.B Student From,               Campus Law Centre, Delhi University

Decide on 29 August, 2012

 INTRODUCTION

This case involves the conviction of Md. Ajmal Kasab, also known as Abu, by the state of Maharashtra in India, Kasab was one of the terrorist involved in the 26/11 Mumbai terror attacks that occurred in November 2008. Which result in the death of over 160 people and injuring several others. He was found guilty and sentenced to death by the trial court, then he involuntarily and that he was not provided with adequate legal representation during his trial. The Supreme Court rejected his arguments and upheld his conviction and death sentence. appealed to Supreme Court for his conviction and arguing that his confession was obtained 

FACTS OF THE CASE

• • That the appellant in this case was a Pakistani national and charged for the conspiracy to wage war against the Government of India. He was found guilty and award the death sentence on five counts, life sentence on five other counts as well as a number of relatively lighter sentences of imprisonment for the other offences.
  • Appellant is one of the ten men who was capture during the terrorist attack that took place in Mumbai in 2008, which lead to 166 killed and 238 injured Indian citizens.
  • He was charged with various offenses, including murder, conspiracy, and waging war against India, under the Indian Penal Code (IPC), the Unlawful Activities (prevention) Act (UAPA), and the Arms Act.
  • Several lawyer refused to take his case, but on April advocate Anjali Whagmare agreed to represent Kasab. Due to conflict of reason she was replace by Abbas Kazmi.
  • Trial court had found Kasab guilty of multiple charges, including murder, conspiracy, and waging war against the nation, and sentenced him to death. Kasab had challenged his conviction and sentence in the High court of Bombay, which upheld the trial court’s decision. Kasab then appealed to the supreme court of India.

• Appeal is filed by state of Maharashtra against the acquittal of other accused, these two accused face same trial along with same charge with the Kasab.

ISSUE

• 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 Cr.P.C?

CONTENTIONS

Mr. Ramachandran argued from the appellant said:

• • That appellant was not informed his constitutional right to counsel under Article 22(1) of the Constitution, at the time of his arrest and remand proceedings and Right against self-incrimination under Article 20(3) of the Constitution when his confession was recorded.
  • That the appellant didn’t get chance of fair trial, which is the fundamental right under Article 21 of Indian constitution. That a mere offer of legal aid is not enough, and the appellant should have been made aware of his Constitutional right to consult and be defended by a legal practitioner.
  • That the magistrate recording under section164 of the Criminal Procedure Code has an obligation to comply with the requirements of section 32 and 52 of the POTA, as they flow from Article 20(3), 21, and 22(1) of the Constitution. The strict compliance of section 164 Cr.P.C was unfulfilled unless the accused is given a constitutional choice to avail or not to avail of a defence lawyer, and that a lawyer provided at the trial stage would be disabled from offering effective defence if presented with a confession in which the accused condemns himself/herself.

• That the requirement under section 304 of the Cr.P.C didn’t fulfilled, which makes it mandatory to provide a defence lawyer at the trial stage and this requirement of law cannot be waived by the accused.  

• He argue that  the right to information should be implanted within Article 20,21, and 22, and should be read along with Article 19 of the Constitution, that is  necessary for every authority responsible for deprivation of liberty to inform the accused of his/her rights.

Mr. Subramanium learned counsel from the state said:

• That all Constitutional Rights of the appellant, including the right to consult with the lawyer and protection against self-incrimination, were fully upheld during the trial, it is incorrect to say that the trial was unfair.
• That the right to legal assistance under Article22 (1) is not a mandatory right upon arrest, but rather an option that can be exercised by the person who has been arrested.
• That the right against self-incrimination under Article 20(3) does not prohibit voluntary statements made by a person of their own free will.
• That the right against self-incrimination under Article 20(3) is incorporated in the provision of the Cr.P.C (sections 161, 162, 163, and 164) and the evidence Act, 1872, an enforceable due process and compliance with these statutory provisions also satisfies constitutional requirements.
• That the section 304 Cr.P.C allows for the assignment of a pleader to the accused for defence in a trial before the Court of Session if the accused cannot afford a pleader. The effectiveness of the right to legal aid happen only at the stage of trial.

OBSERVATIONS 

• The Supreme Court observed that the prosecution has successfully prove beyond reasonable doubt that Ajmal Kasab was involved in a pre-planned conspiracy to carry out the terror attack in Mumbai, and he was found guilty of multiple offenses, including murder, attempted murder, and other acts of terrorism. The court also noted that the attack was an act of waging war against India, which posed a grave threat to the security and sovereignty of the country.
• Article 20(3) prohibition on self-incrimination does not apply to voluntary declarations made when acting with free will and choice.
• That the death penalty given to the accused was fully justified owing to the quantum of crimes committed. There was no scope for improvement even if he were sent to a rehabilitation centre since the accused showed no signs of regret for his action.
• That the purpose of the criminal law is to uncover the truth, not to protect the accused from the consequences of their actions. The test to determine the constitutional and legal admissibility of a confession, that is recorded under section 164 of the Cr.P.C , does not depend on whether the accused would have made the statement if they had been scared by their lawyer, but rather whether the confession was voluntary or not. If there is doubt on voluntariness of confession, then safeguard of section164 should be rejected, but if a confession is established as voluntary, it must be considered not only constitutionally and legally, but also morally.
• That the right to access legal aid and be represented by a legal practitioner arises when a person is arrested in connection with a cognizable offense, and it is the duty of the magistrate to make the accused fully aware of their rights regarding defended by a legal practitioner and right to consult. Because this flow from the article 21 and 22 of the Constitution so it need to be strictly enforced.

JUDGMENT

Thus, the Hon’ble Supreme Court upheld the judgment of the Trial court and High court. 

The Court said that under article 21 of Indian Constitution, every person has given the right to free legal aid and fair trial. There is no question of violation of any of the right of the appellant under the Indian Constitution. The free legal aid has been provided to appellant and he gave his confession under section 164 of Cr.P.C in front of judicial magistrate with his freewill.

Even though Kasab requested to arrange the Pakistani lawyer because he didn’t trust the Indian lawyer, but after the rejection of his demand by Pakistani authorities he agree to appoint Indian lawyer as their defend lawyer. Indian court still provide human lawyer and fair trial although he committed several heinous offense and killed lots of innocent.

Kasab action amounted to aging war against India and were a rarest of rare case deserving the death penalty, it also observed that the attack was on the India’s sovereignty and integrity and ssent a strong message against terrorism.

Accordingly, Ajmal Kasab was executed by hanging on 21 November 2012 at Yerwada central Jail in Pune, Maharashtra, becoming the first person to be judicially executed in India in the 21st century.

REFERENCE

https://indiankanoon.org/doc/193792759