When the law says nothing done in the exercise of the right of private defence is an offence, it would be a travesty of justice to send Sanjay Dutt to jail
In Paragraph 70 of its judgment in Sanjay Dutt’s appeal, the Supreme Court has observed thus: “In the case of Sanjay Dutt, the Designated Court took a view on the basis of his own confession that the weapons were not acquired for any terrorist activity but they were acquired for self-defence, therefore, acquittal was recorded in respect of charge under Section 5 of TADA. We fully agree with the same.”
Section 96 of the Indian Penal Code provides: “Nothing is an offence which is done in the exercise of the right of private defence.” Section 40 of the IPC provides that Chapter 4 of the code is applicable to not only offences punishable under IPC but also to offences punishable under other special laws like the Arms Act, 1949. Section 96, which has been extracted above, is in chapter 4 of the IPC. It is thus clear that if the weapons for the possession of which Sanjay Dutt has been convicted under the Arms Act had been acquired for self-defence, their possession without a licence would not, on the findings of the Supreme Court, in itself constitute a punishable offence.
This important aspect of the matter has been completely overlooked by the Supreme Court and constitutes a clear error of law on the face of the judgment itself. A review of the judgment on this ground would clearly lie and should be allowed by the same bench of the Supreme Court to which it will go.
However, generally, the judges of the Supreme Court hesitate to accept that they have made a mistake even when they have made one. It is only really great and eminent judges who do not hesitate in accepting their own mistake because it is human to err.
In any case, even if the Bench rejects the review application, it would be open to Sanjay Dutt to file a curative petition, which right was evolved by the five-judge Constitution Bench of the Supreme Court in Rupa Hurra’s case (2002 (4) SCC 388).
This curative petition can be filed only after the remedy of a review petition has been availed of and has been unsuccessful. According to the law laid down by the Supreme Court in Hurra’s case, such a petition will not go before the same bench which had decided Sanjay Dutt’s case but will go before a larger bench which will have to include not only the Chief Justice of India but also the two senior most judges of the Supreme Court after the Chief Justice. It is this larger bench that will have to decide the curative petition. There is no reason to feel that when this new bench decides this question of law, which is so clear, it will not set aside the conviction and sentence of Sanjay Dutt.
The evidence in the case fully establishes that well before the Bombay blasts (12/03/1993), for which the entire trial had taken place, there had been serious riots in Bombay (December 1992-January 1993). Subsequent to the demolition of the Babri Masjid (06/12/1992), Muslims of Bombay were being targeted by the Shiv Sena and its mobs. The evidence further shows that Sanjay Dutt’s father, Sunil Dutt, and the whole family was helping to protect innocent Muslims being targeted by the Shiv Sena mobs. This had also occasioned an attack on Sunil Dutt himself (January 1993) for which he had written to the authorities.
Under real threat
It was evident that there was a clear danger of a mob attack on Sanjay Dutt and his family, including his parents. An attack by such a mob could not have been deterred except by the threat of an automatic weapon and it was for this very reason that Sanjay Dutt had agreed to acquire the automatic weapon, namely, the AK-56 Rifle (in mid-January 1993). It is also clear that no private person is ever granted a licence for acquiring an automatic weapon and therefore the only possible way for Sanjay Dutt to protect his family against a mob attack was to acquire the automatic weapon through alternative channels, so long as the purpose of acquiring this automatic weapon was to defend his family from a mob attack, as both the designated court and the Supreme Court clearly found on the evidence recorded. This act of acquiring the possession of the automatic weapon would not constitute the offence as shown above from the relevant provisions of the IPC.
The relevant facts and circumstances in which Sanjay Dutt had to acquire the automatic weapon have been noticed in paragraph 74 of the judgment which is reproduced herein below:
“It was also contended from the side of the appellant that in the year 1992-93, the appellant and his family members were involved in helping people residing in riot affected areas, more particularly, Behrampada, predominantly having a Muslim population which was objectionable to a certain group of persons who were of the opinion that the Dutt family was sympathisers of only the Muslim community. In fact, this led to an attack on Sunil Dutt in January 1993, as well as threatening phone calls were being received at their residence, including threats to the family members being killed as well as the sisters of the appellant being kidnapped and raped. This led to a great and serious apprehension that an attack could be perpetrated upon the Dutt family in view of the fact that Shri Sunil Dutt had already been attacked. This apprehension was clearly set out in the letter of Shri Sunil Dutt to the then DCP of Zone VII dated 06.01.1993, wherein he asked for enhancing security arrangements further and for more police protection at his house as deposed by PW-219 in this case.”
It was in view of these circumstances that the Supreme Court reduced the sentence given to Sanjay Dutt from six years to five years as five years was the minimum prescribed term under Section 25(1A) for being in possession of an automatic weapon.
It is clear from the above facts that Sanjay Dutt is an honourable person who according to the Supreme Court had made a voluntary confession setting out all the facts and circumstances in which he had acquired the automatic weapon, the confession which the Supreme Court found to be voluntary and true and his conviction is also based on his own voluntary and truthful confession.
It would be a travesty of justice if such a person has to go to jail now merely because an important provision of law has been overlooked by the Supreme Court. Either the Supreme Court in a review or curative petition or any other constitutional authority which is entitled to grant him relief must do justice by making an order so that an honourable person like Sanjay Dutt does not have to suffer any more.
(Shanti Bhushan is a former Law Minister and a senior advocate of the Supreme Court of India)