The Delhi Police have vehemently opposed the Supreme Court’s unprecedented decision to hear a writ petition of a Parliament attack case convict Shoukat Hussain Guru against his conviction after dismissal of his appeal, review and curative petitions.
In its affidavit, Delhi Police DCP HM Meena questioned the maintainability of Shoukat’s writ petition after he exhausted all the legal remedies available to him.
Shaukat is currently undergoing 10-year sentence after dismissal of his curative petition, the last judicial remedy available to a convict, was dismissed in January 2007 and the conviction attained finality.
However, in August last year he challenged his conviction on the ground that he was not charged under Section 123 of Indian Penal Code (omission to apprise magistrate/court about an act of waging war by accused persons despite having its knowledge) and not heard on this aspect. He filed a writ of habeas corpus seeking a direction to the authorities to release him.
A Bench of Justices PP Naolekar and RV Raveendran, which had issued notice to the Delhi government seeking its response to Shoukat’s petition, would hear it on Tuesday.
The Delhi Police justified his conviction under Sec 123 of the IPC saying: “There can be no doubt that a person charged under Sections 121 and 122 of the IPC can be given lesser punishment under the Section 123 as has been done in the present case.”
This is for the first time since the Rupa Hura Vs Ashok Hura (2002) case that the Supreme Court has entertained a petition under Article 32 of the Constitution after dismissal of appeal, review and curative petition. It was in Rupa Hura’s case that the court devised the mechanism of curative petition, which can be filed after dismissal of a review petition, to meet the needs of substantive justice.
In fact, recently a Bench, headed by Chief Justice of India KG Balakrishnan dismissed two post-curative writ petitions.