The Telegraph
Thursday , May 22 , 2014
CIMA Gallary

Ansari spared noose in American Center case

The Supreme Court has commuted to life term the death penalty on Aftab Ahmad Ansari and Jamiluddin Nasir for the attack outside Calcutta’s American Center that killed five policemen in 2002.

The apex court held the two guilty of waging war against the state but spared them capital punishment because a provision under which a lower court had awarded the death penalty had been struck down by the Supreme Court two years ago.

The apex court ruled that Ansari would remain in jail throughout his life while Nasir would have to spend a minimum of 30 years without any remission. Unless specified otherwise, governments can cite good conduct and release a life-term convict on remission after years of rigorous imprisonment.

A sessions court had sentenced the two to death in 2005 under Section 27(3) of the Arms Act, a provision that was struck down as unconstitutional by the Supreme Court in 2012 in another case. The provision was scrapped as it mandated compulsory death penalty, leaving no discretion to the courts to award life term or capital punishment in line with the magnitude of the offence.

Citing the earlier judgment, the court said: “By imposing mandatory death penalty, Section 27(3) of the act runs contrary to the statutory safeguards which give judiciary the discretion in the matter of imposing death penalty.”

But the court concluded that the two committed an act of terrorism. “In the ultimate analysis, the act of the accused/assailants was not a mere desperate act of a small group, but was an act of higher magnitude with a clear object and determination to impinge on the sovereign authority of the nation and its government.

“On the other hand, the intent and purpose of the attack was to create an indelible mark in the mind of the state that their group can go to any extent when it comes to the question of implementing their wrong… movement,” a bench of Justices A.K. Patnaik and Ibrahim Kalifulla said in a 195-page judgment.

The apex court passed the judgment while dealing with the appeal filed by the duo challenging the death sentence that was earlier upheld by Calcutta High Court.

The attack took place on January 22, 2002, at 6.30am when the policemen were changing shifts.

The apex court was unsparing in its criticism of the terrorists and rejected their plea of being innocent.

“From the evidence on record, we find that the intention of the accused collectively and individually was a defiant of raging attitude against the state. Though the number of accused were not many in number like that of manpower required in a battlefield, the mindset of each of the accused was loaded with such animosity against the state and its machinery…. The act of the assailants at the spot virtually displayed the vicious mindset of all those who were behind it,” the court said.

“The scene of occurrence, as stated by the witnesses, make us feel as though it was like a battle field and a war-like situation was created, though no pomp and pageantry usually associated with war was present. This is not an offence due to an outcome of a lawlessness of a group of individuals who indulged in such a crime unaware of the damage and destruction it would cause. On the other hand, it was an act committed with all preparation and with a determination to cause damage of unimaginable extent to men and material,” Justice Kalifulla said.

The convicts had claimed that they did not intend to wage a war but had carried out the attack to avenge the killing of one of their friends by Gujarat police in an alleged fake encounter in 2002.

But the bench said the attack could not be attributed to any public cause or public good. “However much one would attempt to mitigate the acts indulged in by the accused and the assailant, it is difficult to comprehend that the accused did not intend to commit an offence of such high magnitude, but were only intended to resort to a simple revenge. “On the other hand, the intent and purpose of the attack was to create an indelible mark in the mind of the State that their group can go to any extent….”