Tuesday, Jul 15, 2003
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By Our Special Correspondent
His counsel, Shanti Bhushan, told the court that Section 71 of the IPC stipulated that when a single act gave rise to several offences a person could be charged with only one offence and not all the offences. Thus if Shaukat Hussain was charged with conspiring to commit a terrorist act, this charge also encompassed the offence of murder and he could not separately be charged with conspiracy to commit murder.
On death sentence, Mr. Shanti Bhushan argued that if two different laws stipulated different punishments for the same offence then the court had to consider what the overriding law was. The old law left the matter of death sentence to court discretion. Mr. Shanti Bhushan said that Parliament, in devising POTA, had "controlled the law on what punishment can be given to conspirators or abettors''. It was a special law and the more recent law and therefore superseded any earlier law.
POTA drew a distinction between committing a terrorist act and conspiring to commit a terrorist act. The first dealt with in section 3(1) (a & b) was punishable with death, but the second under section 3(3) was not. Shaukat Hussain might have "conspired, advocated, abetted, advised, incited or knowingly facilitated a terrorist act'' but he had not "committed a terrorist act'', he said. The trial court, Mr. Shanti Bhushan said, had failed to make this distinction while sentencing him to death. He also said that the trial judge had relied on IPC to award a death sentence.
The Special Prosecutor, Gopal Subramanium, presenting the prosecutions case before the High Court, had said that the charge of conspiracy, under section 3(3) of POTA was applicable only if the conspiracy was not carried. Mr. Shanti Bhushan said that this was a novel argument but not tenable.
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