Holding

The Court upheld the validity of the sanction, affirmed conviction under IPC s.121A, rejected the applicability of s.120‑B, and upheld the enhanced life sentence.

Summary

The Supreme Court examined appeals by four accused (A‑1, A‑4 to A‑6) who were convicted for conspiring to wage war against the Government of India under IPC s.121A, along with offences under the Explosive Substances Act, 1908 and the Arms Act, 1959. The prosecution relied on recovered explosives, arms, inflammatory literature, a diary, and handwritten signatures linking the accused to meetings of a LeT‑affiliated trust. The Court held that the sanction under CrPC s.196 was valid, the evidence, though some witnesses turned hostile, was sufficient to prove a continuing conspiracy, and Section 120‑B was inapplicable because s.121A expressly covered the offence. It affirmed the conviction under s.121A, enhanced the sentence from seven years to life imprisonment, and dismissed the appeals.

Issues considered

The validity of the sanction under CrPC s.196 for prosecution under IPC, the Explosive Substances Act, the Arms Act and the UAPA.
Whether the evidence establishes a conspiracy under IPC s.121A despite some hostile witnesses.
Whether conviction under IPC s.120‑B is appropriate when s.121A provides an express provision.
The propriety of enhancing the sentence from seven years to life imprisonment.

Legislation cited

Arms Act, 1959s. 25, s. 26
Code of Criminal Procedure, 1973s. 196
Explosive Substances Act, 1908s. 5, s. 6
Indian Penal Code, 1860s. 120B, s. 121, s. 121A, s. 153A, s. 153B
Unlawful Activities (Prevention) Act, 1967s. 10, s. 13

Subjects

conspiracywaging warSection 121A IPCSection 196 CrPCsanction validityterrorismLashkar-e-Toibaexplosive substancesarms actUAPAlife imprisonmenthostile witnesses

Judgment

[2022] 10 S.C.R. 827 827

MOHAMMAD IRFAN A
v.
STATE OF KARNATAKA
(Criminal Appeal Nos. 201-202 of 2018)
JULY 11, 2022 B
[UDAY UMESH LALIT, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Penal Code, 1860: ss.121 and 121 A – Conspiracy to commit
offences punishable by s.121 – Prosecution case that the
C
Investigating Officer, while investigating incident of shoot-out
occurred at Indian Institute of Science, Bangalore, came to know
about a larger conspiracy concerning Lasker-e-Toiba (LeT), banned
militant organization in India – Registration of FIR that accused
persons A-1 to A-6, active members of LeT entered into a criminal
conspiracy to cause large scale destruction of public property, multi- D
national companies, places of worships, by causing bomb
explosions, attacks on innocent people; and the accused have
reported to have acquired and collected explosive substances and
other necessary arms and ammunitions and conspired to wage war
against the Government of India– Trial court convicted and
E
sentenced A1 to A6 u/s 120 B, 121, and 121 A, ss. 5 and 6 of the
Explosive Substances Act,1908 and ss. 25, 26 of the Arms Act, 1959
however acquitted them for offences punishable u/ss. 10 and 13 of
the Unlawful Activities Prevention Act, 1967, and ss. 153A, 153-B
IPC ,whereas A-7 was acquitted of all the charges – High Court
modified the conviction and sentence of the accused – In appeal F
before this Court as regards, A-1 and A-4 to A-6, held: There was no
infirmity in the sanction obtained u/s. 196 CrPC – Though the
prosecution witnesses did not support the prosecution case fully, some
of the features of the prosecution case were substantiated through
their testimonies– Recoveries of books and literature carrying
G
inflammatory content and messages supported by the Panch witnesses
and the Panchanamas – Diary recovered from A-2 clearly established
the intent of the accused who had assembled, who held meetings and
had appended their signatures which were identified by handwriting
expert – Large quantity of explosive substances recovered from
accused shows the potential danger – Presence of A-1 on the fateful H
827
828 SUPREME COURT REPORTS [2022] 10 S.C.R.

A day completely established and his presence assumes significance
as he was not a local person – Conspiracy, the intent of which was
clear from the minutes of the meetings and the consequential
acquisition of arms and explosives to effectuate the purpose and
intent of said conspiracy, would come well within the latter part of
the conspiracy dealt with in s. 121A – As the explanation to s. 121A
B
discloses, for an offence of conspiracy, it would not be necessary
that any act or illegal omission must take place in pursuance thereof
– Thus, even though no untoward incident had actually happened
as a result of the conspiracy, the matter would still come within the
four corners of s. 121A – Conviction against the accused u/s. 121A
C does not call for any interference – On facts, the High Court rightly
enhanced the sentence from seven years to life imprisonment –
Explosive Substances Act,1908 – s. 5 – Arms Act,1959 – ss. 25 and
26 – Unlawful activities (Prevention) Act, 1967 – ss. 10 and 13 –
Code of Criminal Procedure, 1973 – s.196.
D Sentence/Sentencing: Enhancement of quantum of punishment
by the High Court from seven years to that of life imprisonment for
offence punishable u/s. 121 A IPC – Justification of – Held: If
conspiracy as entered into by the accused-members of LeT, to cause
large scale destruction of public property, multi-national companies,
places of worships, by causing bomb explosions, attacks on innocent
E
people, had been carried out, it would have resulted in great damage
and prejudice to the life and well-being of the members of the general
public as well as loss to the public property – Such conspiracies to
cause danger to public property or to the safety of the members of
the general public ought to be dealt with strictly – Thus, the High
F Court justified in enhancing the sentence – Penal Code, 1860 – s.
121A.
Code of Criminal Procedure, 1973: s.196 – Prosecution for
offences against the State and for criminal conspiracy to commit
such offence – Sanction u/s. 196 – Plea that in terms of s. 196, the
G sanction to prosecute the accused for having committed offence
punishable inter alia under Chapter VI of the IPC was mandatory
and the sanction placed on record did not satisfy the requirements
– Correctness and validity of the sanction accorded u/s.196 – Held:
Matter was considered by the Office of the Home Minister and the
Chief Minister and consent was accorded to the proposal put up in
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 829

usual course of business, whereafter, the communication was A
addressed by the Under Secretary – Thus, it cannot be said that the
sanction was not accorded by the competent authorities – Sanction
in terms of s.196 was valid and proper.
Dismissing the appeals, the Court
HELD: 1.1 As regards the correctness and validity of the B
sanction accorded under Section 196 of the Code of Criminal
Procedure, 1973, the facts on record as set out in the decision of
the High Court disclose, that the matter was considered by the
Office of the Home Minister and the Chief Minister and consent
was accorded to the proposal put up in usual course of business, C
whereafter, the communication was addressed by the Under
Secretary. In the face of these facts, the submission that the
sanction was not accorded by the competent authorities must be
rejected. Consistent with the findings rendered by the courts
below, the sanction in terms of Section 196 of the Code was valid
and proper. The matter regarding sanction accorded in respect D
of offences punishable under the Explosives Substances Act and
the Arms Act was also dealt with by the High Court in extenso
and the conclusion arrived at does not call for any interference.
[Para 30][879-E-G]
1.2. The evidence on record can be classified mainly as E
oral testimony of prosecution witness Nos. 1 to 8 and 13 and
evidence regarding recoveries. It is true that prosecution witness
Nos. 1 to 8 and 13 turned hostile and did not support the case of
prosecution fully. However, it emerges from their testimony that
some of them were trustees of the trust, minutes book of which F
was produced on record. The witnesses accepted the fact that
the meetings of the trust had taken place and that some of the
accused did attend the meetings. PW4 gave details about the
presence and participation in the meetings by various accused
including A-1 and deposed to the fact that said witness had
dropped A-1 at the railway station on his bike. It is thus clear G
that though these witnesses did not support the prosecution case
fully, some of the features of the prosecution case were
substantiated through the testimony of these witnesses. The law
on the point is clear that even if a witness is declared hostile, the
H
830 SUPREME COURT REPORTS [2022] 10 S.C.R.

A evidence of such witness cannot be rejected in toto but the correct
approach is to accept it to the extent his version is found to be
dependable on a careful scrutiny thereof. Furthermore, the
recoveries of books and literature were completely supported
by the concerned Panch witnesses and the Panchanamas on
record. The books and literature did carry inflammatory content
B
and messages. The translations of the original versions in Urdu
were placed on record by the prosecution. The voluntary
statements which led to such recoveries and the recoveries
themselves were also proved by the prosecution. One important
piece of material recovered from A-2 was the Diary. The tenor
C and text of the contents were captured quite correctly by the
trial court in its judgment. The signatures of the concerned
accused were proved beyond any doubt through the evidence of
PW67, handwriting expert. It thus stood established that the
accused had assembled together with the intent as disclosed from
the minutes of the meetings of the Trust. The explosive
D
substances, details of which are given, were recovered from A-2,
A-3, A-4 and A-6. Voluntary statements of said accused and
consequential recoveries effected through Panchas were also duly
proved by the prosecution. [Para 31][879-H; 880-A-G; 881-A]
1.3. From the facts on record, it emerges that on 10.12.2003,
E when a meeting was organized at the house of F at place ‘C’, it
was attended by A-1, A-2, A-4 and A-6 along with other members
including some of the Prosecution witnesses. The minutes of the
meeting disclosed the intent and the objective with which the
materials, such as guns and bombs were to be procured or
F collected. The signatures appended below the minutes were
proved by PW-67, Hand Writing Expert. The presence of A-1 in
‘C’ on the day in question was completely established. His
presence assumes significance as he was not a local person. The
presence of A-1 on the day in question was adverted to by some
of the prosecution witnesses. It is true that apart from these
G pieces of evidence, nothing substantial could be pointed against
A-1 but his involvement in the scheme as one of the driving forces
for the entire design, was quite evident. The intent and objective
disclosed from the minutes of the meeting was carried forward in
the subsequent meetings. The recoveries made from and at the
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 831

instance of the other accused show that the very intent and object A
as discussed in the first meeting was being carried forward by
these accused with the acquisition and possession of the arms
and ammunition. The kind of material recovered from them by
itself shows the potential danger. Nothing was brought on record
to show the reason or the purpose for acquisition and possession
B
of such potentially dangerous material. These facts not only show
that the basic elements of the conspiracy stood well established
but also proved the involvement of A-1. Going by the law laid
down by this Court, A-1 cannot escape the liability only on the
ground that no arms and ammunition or any inflammatory material
or literature were actually recovered from him. [Para 34][886-A- C
H]
1.4.The minutes of the first meeting dated 10.12.2003 were
written in Kannada language, at the end of which the signatures
were appended by all the concerned including A-1. As admitted
by the Investigating Officer, A-1 did not understand Kannada D
language. A serious objection was, therefore, raised about
reliability of said document to fasten the liability on A-1. The
presence of A-1 in ‘C’ on the relevant day stood well established.
The fact that all the concerned accused got together on that day
in the house of PW-4 also stood established. The tenor of the
discussion in the meeting and the fact that it was not found E
appropriate by some of the witnesses also found mention in the
testimony of the witnesses. The handwriting expert found the
signature to be that of A-1. In the premises, a mere submission
that the signatures of the accused were obtained subsequently,
without any foundation, cannot be entertained. The signatures F
were definitely made in the circumstances suggested by the
prosecution. [Para 35(A)][887-A-D]
1.5 The submission as regards the gap between the first
meeting and the recovery of arms and explosives from some of
the accused, it was highlighted that there was about three years’ G
gap between these two circumstances and it was stressed that
there was nothing on record that during this interregnum, A-1
was in touch with any of the accused or had any role in procuring
the arms and explosives, which were eventually recovered

H
832 SUPREME COURT REPORTS [2022] 10 S.C.R.

A pursuant to disclosures made by the concerned accused. The
conspiracy, the basic features of which were structured in the
first meeting of 2003, was a continuing one; which is evident from
the minutes of the subsequent meetings and translation of the
intent into procurement of arms and explosives. It can neither
be stated that the thread which was running through subsequent
B
events and circumstances was broken or that the link between
the first meeting and the subsequent stages was in any way
snapped. [Para 35(B)][887-E-H]
1.6 It was submitted that the case of the prosecution that
A-1 had signed the minutes of the first meeting was not put to
C said accused during his examination under Section 313 of the
Code. The record shows that questions about the report of PW-
67, the handwriting expert, and about the meeting at ‘C’ and that
A-1 had gone to ‘C’ were put to the accused in his examination
under Section 313 of the Code. These questions definitely invited
D the attention of A-1 to the circumstances against him. The
substantive evidence about the opinion of the handwriting expert
which had found the signature of A-1 below the minutes of the
first meeting and the circumstances about the meeting at ‘C’ and
that A-1 had gone to ‘C’ were thus put to the accused. The instant
submission, therefore, does not merit acceptance. [Para
E 35(C)][888-A-D]
1.7 What constitutes an offence under Section 121 IPC is
the waging of war or attempt to wage war or abetting of waging of
such war against the Government of India. Section 121-A IPC,
however, deals with conspiracy to commit offences punishable
F under Section 121 IPC as well as conspiracy to overawe by force,
the Central Government or any State Government. In terms of
its application, the width of Section 121-A is thus not confined to
conspiracy to commit offences punishable under Section 121 of
the IPC alone. [Paras 38, 39][898-C-G]
G 1.8. As the text of the Section 121A shows, persons who
plan to overawe the Central or the State Government by criminal
force or show of criminal force would be guilty of offence of
entering into conspiracy in terms of Section 121A IPC. The
dictionary meaning of the expression “overawe” is to subdue or
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 833

inhibit with a sense of awe. The expression “overawe” would A
thus imply creation of apprehension or situation of alarm and as
rightly held by the Division Bench, it would not be necessary
that the danger should be one of assassination of or of bodily
injury to the members of the machinery or apparatus of the
Government but the danger might as well be to public property
B
or to the safety of members of the general public. [Para 40][900-
G; 901-A-B]
1.9. The conspiracy in the instant case, the intent of which
was clear from the minutes of the meetings and the consequential
acquisition of arms and explosives to effectuate the purpose and
intent of said conspiracy, would thus come well within the latter C
part of the conspiracy dealt with in Section 121A IPC. As the
explanation to Section 121A IPC discloses, for an offence of
conspiracy, it would not be necessary that any act or illegal
omission must take place in pursuance thereof. Thus, even though
no untoward incident had actually happened as a result of the D
conspiracy, the matter would still come within the four corners of
Section 121A IPC. The conviction recorded against the accused
under Section 121A IPC does not therefore call for any
interference. [Para 41][901-B-D]
1.10. As regards the submission based on Section 120-B E
read with Section 116 IPC, section 120-B IPC would apply only
when “no express provision is made in this regard for the
punishment of such a conspiracy”, since an express provision
for particular kind of conspiracy is dealt with specifically in Section
121A IPC, the provision contained in Section 120-B of the IPC
would have no application. The submission, therefore, merits F
rejection. [Para 42][901-E]
1.11 The submission that there was no occasion for the High
Court to enhance the quantum of punishment from seven years
which was awarded by the trial court to that of life imprisonment
for the offence punishable under Section 121-A IPC, the G
conspiracy as disclosed in the instant matter, if it had been carried
out, would have resulted in great damage and prejudice to the
life and well-being of the members of the general public as well
as loss to the public property. Such conspiracies to cause danger
H
834 SUPREME COURT REPORTS [2022] 10 S.C.R.

A to public property or to the safety of the members of the general
public ought to be dealt with strictly. Considering the acquisition
of substantial quantity of arms and explosives as well as the intent
disclosed by the diary, and other materials on record, the High
Court was right in enhancing the sentence. [Para 43][901-F-H;
902-A]
B
Kehar Singh and ors. vs. State (Delhi Admn.) AIR 1988
SC 1883 : 1988 SCR Suppl (2) 24; Nazir Khan and
others v. State of Delhi AIR 2003 SC 4427 : (2003) 8
SCC 461 : [2003] (2) Suppl. SCR 884; State (NCT of
Delhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC
C
600 : [2005] (2) Suppl. SCR 79; Yomeshbhai
Pranshankar Bhatt v. State of Gujarat (2011) 6 SCC
312 : [2011] (6) SCR 958; C. Muniappan & Ors. Vs.
State of Tamil Nadu (2010) 9 SCC 567 : [2010] (10)
SCR 262; Radha Mohan Singh & Ors. Vs. State of U.P.
D (2006) 2 SCC 450 : [2006] (1) SCR 519; Lal Singh v.
State of Gujarat and Another (2001) 3 SCC 221 : [2001]
(1) SCR 111; Ajay Aggarwal v. Union of India and
Others 1993 (3) SCC 609 : [1993] (3) SCR 543; Mir
Hasan Khan vs. State AIR 1951 Patna 60 : 1951 Cr.L.J.
462; Ramanand v. State 1951 Cr.LJ 462 - referred to.
E
Case Law Reference
[1988] SCR Suppl (2) 24 referred to Para 21
[198]8 SCR Suppl (2) 24 referred to Para 21
F [2003] (2) Suppl. SCR 884 referred to Para 21
[2005] (2) Suppl. SCR 79 referred to Para 23 (H)
[2011] (6) SCR 958 referred to Para 27
[2010] (10) SCR 262 referred to Para 31(i)
G
[2006] (1) SCR 519 referred to Para 31(i)
[2001] (1) SCR 111 referred to Para 32
[1993] (3) SCR 543 referred to Para 33

H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 835

IN THE SUPREME COURT OF INDIA A
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 201-202 of 2018.
From the Judgment and Order dated 10.05.2016 of the High Court
of Karnataka at Bangalore in Criminal Appeal Nos.220 and 530 of 2012.
B
With
Criminal Appeal Nos.203-204, 205-207 and 208-209 of 2018.
Tushar Mehta, SG, Ms. Aishwarya Bhati, ASG, Nikhil Goel, AAG,
Ratnakar Dash, Siddhartha Dave, Sr. Advs., Mohd. Irshad Hanif, Aarif
Ali Khan, Rizwan Ahmad, Mujahid Ahmed, Farrukh Rasheed, Abu Bakr C
Sabbaq, Ms. Seema Bengani, Ms. Suhasini Sen, Kanu Agrawal, Ms.
Archana Pathak Dave, B. V. Balaram Das, Ms. Nitya Ramakrishnan,
Shadan Farasat, Bharat Gupta, M. Karthik Murukutla, V. N. Raghupathy,
Advs. for the appearing parties.
The Judgment of the Court was delivered by D
UDAY UMESH LALIT, J.
1. Criminal Appeal Nos.201-202 of 2018 (arising out of SLP (Crl.)
Nos.7347-7348 of 2016); Criminal Appeal Nos.203-204 of 2018 (arising
out of SLP (Crl) Nos.8246-8247 of 2016); Criminal Appeal Nos.205-
207 of 2018 (arising out of SLP (Crl) Nos.8243-8245 of 2016) and E
Criminal Appeal Nos.208-209 of 2018 (arising out of SLP (Crl) No.138-
139 of 2017) are filed by original Accused Nos.5, 6, 1 and 4 respectively,
against the common judgment and final order dated 10.05.2016 passed
by the High Court1 in Criminal Appeal Nos.220 of 2012, 530 of 2012,
531 of 2012 and 1123 of 2013. F
2. In the instant case, eight persons were arrayed as Accused in
the chargesheet but A-8 was shown to be absconding. A-1 to A-7, namely,
Mohamed Razhur Rehman @ Abdul Rehman, Afsar Pasha @
Basheeruddin, Mehboob Ibrahim Sab Chopdar, Noorullah Khan @
Noorullah, Mohammad Irfan, Nazmuddin @ Munna, Chand Basha and G
Ahmed Basha respectively, were tried in Sessions Case No.539 of 2006
arising out of crime registered pursuant to FIR No.3/2006. By its judgment
dated 17.12.2011 the Trial Court2 acquitted A-7 but found A-1 to A-6
1
The High Court of Judicature of Karnataka at Bangalore.
2
The Court of the City Fast Track (Sessions) Judge, Bangalore City (FTC II). H
836 SUPREME COURT REPORTS [2022] 10 S.C.R.

A guilty and passed order of sentence dated 19.12.2011, the features of
which can be tabulated as under: -

B

C

3. Following four appeals were thereafter filed in the High Court.
Criminal Appeal No. 220 of 2012 was filed by five Accused i.e.
A-1, A-2, A-4, A-5 and A-6. Criminal Appeal No.1123 of 2013 was
D preferred by A-3. Criminal Appeal Nos.530-531 of 2012 were preferred
by the State against acquittal of the Accused including A-7 under certain
provisions and also against award of lesser sentence in respect of offences
where the conviction was recorded.
4. Said four appeals were heard together by the High Court. By
E its judgment and order presently under challenge, the High Court modified
the conviction and sentence of the Accused as under: -

F

G 5. Being aggrieved, the instant four appeals before this Court are
by A-5, 6, 1 and 4. The State has not preferred any appeal either against

3
IPC, for short.
4
1908 Act, for short.
5
1959 Act, for short.
6
H 1967 Act, for short.
MOHAMMAD IRFAN v. STATE OF KARNATAKA 837
[UDAY UMESH LALIT, J.]

the acquittal of A-7 in respect of all charges or against the other Accused A
who were acquitted of some of the charges. Further, no appeals have
been preferred by A-2 and 3.
6. While investigating into Crime No.110 of 2005 relating to an
incident of shootout at Indian Institute of Science, Bangalore, PW-68 Sri
V.S.D. Souza came to know about a larger conspiracy concerning B
Lasker-e-Toiba (LeT), a banned organization in India, which led to
registration of FIR No.3 of 2006 on 14.01.2006. The allegations in said
FIR No.3 of 2006 were as under:
“1. I was directed by the Commissioner of Police, Bangalore City
vide Memo No.CRM/4/186/2006 dated 29.12.2005 to investigate C
the case in Cr.No.110/2005 registered in Sadashivanagar Police
Station. I took up further investigation of the case in Cr.No.110/
2005 U/s 307 Indian Penal Code, 18060 & 25, 27, 28 of Arms Act
& 4 & 5 of Explosive Substance Act, 1908 of Sadashivanagar
Police Station, Bangalore City from T. Ajjappa, ACP, D
Seshadripuram Sub-Division, Bangalore on 31.12.2005.
2. As per my instructions on 02.01.2006 at 6.30 am Sri Subbanna,
Police Inspector and his team produced the Accused Mohammed
Razur Rehman @ Abdul Rehaman @ Umesh S/o Samsuddin,
aged 35 years, R/o No.5-10-82, BTS, Naigonda, Andhra Pradesh, E
before me along with his report seizer mehazar, a pocket diary
containing telephone numbers which were seized during the course
of investigation of the above case.
3. While investigation, the above case I have come to be aware
of the following credible information. That Lasker-e-Toiba (LeT) F
which is banned organisation in India is active and trying to spread
its terrorist activities in India and elsewhere.
4. The main aim of LeT is to destabilize India by way of terrorist
activities like attacking vital sensitive installations, assassinating
important public personalities, causing bomb explosions in public G
places and carrying shootouts, disrupting ***** 7 peace and
tranquillity, causing communal disharmony *****7 economic
interests thereby disturbing public order etc.

7
***** - Illegible. H
838 SUPREME COURT REPORTS [2022] 10 S.C.R.

A 5. Abu Mohamed @ Mohamed Irshad is the chief of LeT in Saudi
Arabia. Abu Mohamed is a Pakistani national. Abu-Abdulla, Abdul
Manner and Zakria all Pakistani nationals used to assist Abu
Mohammed @ Mohammed Irshad in LeT activities.
6. Abdul Rehman, a native of Nalgonda, Andhra Pradesh, a dropout
B in Diploma, ventured into different professions, but failed. In 1993
he procured passport at Hyderabad and in 1994 his brother
Habeer-Ur-Rehman helped him in getting a Saudi Visa and Abdul
Rehman went to Saudi Arabia and worked as driver, as a salesman
in a vegetable shop, in laundry, driver of water supply van and at
present he is working as sales representative at Onaiza Under a
C cosmetics dealer.
7. He came in contact with Sheik Mehboob Ahamed Moulana an
LeT leader in a Sanaga Masjid.
8. Sheikh Mehboob motivated Abdul Rehman to join LeT in 1998.
The said Abdul Rehman started attending to its religious activities
D of LeT an started regularly attending to its religious activities
conducted by LeT which were basically motivating people for
Jehadi activities. Abu-Hanza, Abu-Ummer, Abu-Nidal, Abu-Bukka,
Abdul Rehman Makki, Hafizullah who are senior LeT leaders
used to take active participation and were motivating the people
E for Jehadi activities by their provocative speeches during 1999.
Abu Rehman got married and returned to Saudi Arabia.
9. In 2000 Afsar of Bangalore and Mehboob Ibraim of Bagalkot
District during one of its seminar in Islamic Centre of Onaiza
(Saudi Arabia) came in contact with Abdul Rehman and they
became friends and prominent persons in the cadre of LeT.
F
10. Under the patronage of Abdul Rehman, Afsar Pasha of
Bangalore wanted to go to Pakistan for training in explosives and
arms for Jehadi and terrorist activities. However, the plan did not
materialize.
11. In the year, 2001, Faisal, Abu Haza, Sherif, Altaf, Anwar,
G Zakaria, Abdul Rehman and others who are all Indian nationals
and working in Saudi Arabia decided to collect funds and revenue
for Jehadi activities in India.
12. Vali-Ur-Rehman, resident of Bangladesh, who is chief of Jamat-
ul-Mudauddin (JMU in Bangladesh) arranged the visit of Afsar
H Pasha to Bangladesh.
MOHAMMAD IRFAN v. STATE OF KARNATAKA 839
[UDAY UMESH LALIT, J.]

13. Afsar Pasha of Bangalore, went to Bangladesh in the early of A
2002 where he stayed there for 8 months and also underwent
training in handling weapons and explosives and manufacture of
bombs, etc. Later he entered India illegally via West Bengal. Abdul
Rehman during this period had sent money to Afsar Pasha towards
the purchase of weapons and training expenses.
B
14. In the year 2002. Irfan Umri of Chennai was made Masood
of Al-Ghasi and Abdul Rehman as his deputy. Both of them have
conducted various religious programme to attract Muslims to the
cadre of LeT.
15. During 2003, Zakaria returned back to India and he was C
arrested by Tamil Nadu Police for conspiracy of carrying out
sabotage activities in Chennai. Later Abdul Rehman was made
Masood in place of Irfan Umri in Saudi Arabia.
16. Abdul Rehman was visiting Nalagonda, Andhra Pradesh,
frequently on the pretext of spending holidays, but was contacting D
Mehboob Ibrahim and Afsar Pasha and discussing about carrying
out Jehadi and terrorist activities in Karnataka. Abdul Rehman
appointed Mehboob Ibrahim of Bagalkot District for carrying out
terrorist activities in Northern Karnataka and Afsar Pasha of
Bangalore for Southern Karnataka.
E
17. During such visits in November 2003, Abdul Rehman visited
Chintamani and met his associate Afsar Pasha and decided about
setting up a Mosque of Ahle-Hadis at Chintakani and also promised
for financial assets ****. Afsar Pasha and Afbdul Rehman also
decided to ****** of LeT in Karnataka by recruiting youth from
their community. Afsar Pasha introduced Noor, Irfan, Munna and F
others Abdul Rehman, Abdul Rehman as a chief of LeT South
India. ***** all of them to engage themselves in Jehadi and terrorist
activities.
18. Abdul Rehman went to Chennai and met Irfan and decided to
set up a trust “Al-Fetah” for LeT activities and promised funds G
for the same.
19. During 2004, Abdul Rehman sent money to Afsar Pasha of
Bangalore and Mehboob Ibrahim of Bagalkot through hawala
transaction through one Chand Pasha of Bangalore.
H
840 SUPREME COURT REPORTS [2022] 10 S.C.R.

A 20. The said Afsar Pasha of Bangalore and Mehboob Ibrahim of
Bagalkot District were in constant touch with Abdul Rehman who
was based in Saudi Arabia and vice-versa and further was
reporting to him about the progress of the LeT activities.
21. Abdul Rehman instructed Afsar Pasha and Mehboob Ibrahim
B to undertake Jehadi and terrorists activities through sabotage in
Karnataka. Abdul Rehman came to Nalagonda during October
2005 and instructed Afsar Pasha and Ibrahim to cause blast and
damage to vital installations, Multi-national companies, etc. in
Bangalore and other places of Karnataka.
22. Between 2003 to 2005 December, Abdul Rehman has recruited
C Afsar Pasha of Bangalore and Mehboob Ibrahim of Bagalkot into
LeT cadre. Afsar Pasha was made incharge of LeT to look after
South Karnataka and Ibrahim of Bagalkot District was made
incharge of LeT to look after North Karnataka for causing sabotage
activities. Afsar Pasha has recruited 4-5 persons, trained them in
D LeT activities and also taught them about the concept of Jehad,
(so called holy war against non-muslims). For this purpose during
2nd and 3rd week of December, 2005 they held secret conspiracy
meeting in Tamil Sangam, Cubbon Park and Afsar Pasha’s house
in Bangalore and other places in Karnataka and decided to cause
bomb blasts in Bangalore. For this purpose they procured explosive
E materials, bomb, etc. and prepared themselves to use them to
terrorize the citizen and create fear psyenosis in the State by their
terrorist activities.
23. In view of the above facts, it is evident that the above Accused
persons viz. (1) Mohamed Razhur Rehman @ Abdul Rehman (2)
F Afsar Pasha of Bangalore (3) Ibrahim of Bagalkot District (4)
Noor (5) Irfan (6) Munna and others of Karnataka who are the
active members of banned militant organization LeT entered into
a criminal conspiracy to cause large scale destruction of public
property, multi-national companies etc. by causing bomb
explosions, attacks on innocent people, large scale destruction of
G places of worships and promote enmity between different groups
on the grounds of religion, race and perpetrated acts, prejudicial
to the maintenance of communal harmony besides causing
disaffection with overall object of attempt to being hatred,
contempt and incite disaffection towards the Government by law
established by desertion of places of worship, knowingly that such
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 841
[UDAY UMESH LALIT, J.]

acts will result in breakdown of public order and the Accused A
have reported to have acquired and collected explosive substances
and other necessary arms and ammunitions and conspired to wage
war against the Union Government of India.
24. The information received by me constitutes cognizable offence
U/s 120(b), 121, 121(A),1 122, 124(A), 153(a) and (b) of Indian B
Penal Code, 1860 and Section 5 and 6 of Explosive Substance
Act, 1908 and Sections 25, 26 and 28 of Arms Act, 1959 and
Sections 10, 11, 13, 16, 18, 19, 20 and 23 of Unlawful Activities
Prevention Act, 1967.”
7. The investigation into the crime was conducted by the team
headed by PW72 (Pradeep Singh, Asstt. Commissioner of Police) and C
the salient features of the matter including the steps undertaken during
investigation can be tabulated as follows:

D

E

F

G

H
842 SUPREME COURT REPORTS [2022] 10 S.C.R.

A

B

C

D

E

F

G

H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 843
[UDAY UMESH LALIT, J.]

A

B

C

D

E

F

8. During trial, the Prosecution examined 73 witnesses and relied
upon 278 exhibits and 38 material objects in support of its case. Exhibits
D1 to D7 were also marked at the instance of the Accused in the cross G
examination of the Prosecution witnesses. The evidence led by the
Prosecution could be categorised under three segments as noted by the
High Court8:

8
Paragraph 44 of the judgment under appeal H
844 SUPREME COURT REPORTS [2022] 10 S.C.R.

A “(1) The recovery of incriminating articles at the instance of the
accused persons;
(2) Connectivity of those articles to the conspiracy between the
accused persons;
(3) The conduct of the accused persons with reference to such
B
conspiracy to constitute the offence alleged against them.”
9. In the first segment, the important recoveries from the Accused,
which were relied upon by the Prosecution, were as under:
(a) From A-1: A pocket notebook, some paper chits containing
C phone numbers, passport and passport sized photos.
(b) From A-2: 17 Detonators, 20 Gelatine sticks, 114 Iron pallets,
3 Hand grenades, certain inflammatory literature, minutes
of meeting of a trust created under the tutelage of A-1
(Ex.P.92) and some video cassettes.
D
(c) From A-3: Passports, Telephone diary, Telephone chits,
Photographs, 10 Gelatine sticks, 2 Detonators and
inflammatory literature.
(d) From A-4: Tin type bomb in a box, wires and tapes;
E documents and books.
(e) From A-5: Letterheads and inflammatory literature.
(f) From A-6: Tin type bomb in a box, wires and tapes; Revolver
and live ammunition.

F (g) From A-7: Mobile phone, slip with phone number, visiting
card, diary and a note book.
10. Certain explosive substances, arms and ammunition which
were recovered pursuant to statements made by A-2, A-3, A-4 and A-6
as dealt with at serial numbers 7, 8 and 12 of the chart in paragraph 7
G hereinabove, were also relied upon.
11. The Prosecution examined PWs 1 to 8 and 13, who according
to the Prosecution, were sought to be drawn and indoctrinated into the
design and scheme of the Accused. All these witnesses did not support
the Prosecution and were declared hostile. However, according to the
H Prosecution, their testimonies could still be relied upon to establish the
MOHAMMAD IRFAN v. STATE OF KARNATAKA 845
[UDAY UMESH LALIT, J.]

fact that all the Accused were working together with a sense of purpose A
and had been in touch with the witnesses. By way of example, the
following portions from the depositions of PWs 1 and 4 may be noted:-
(A) PW-1 (Javeel Raza)
“I am acquainted with, Accused-2, Afzal Pasha and Accused-6
Nazamuddin. Both of them are present in this court on this day. B
Witness identified the Accused-2 and 6 who are sitting at the 4th
and 6th position respectively.
One day when I was there in my shop along with Parveed, 4
years ago, Accused-2 and 6 came to my shop and said that they
have come from Kolar, presuming that they might be friends of C
my friend Mukthiyar who lives Kolar, I called Mukthiyar over
phone. The said Mukthiyar is originally from Kolar and was residing
in Bangalore. I had called his Bangalore number. Mukthiyar came
to my shop. Accused-2 and 6 told us about Islam religion, told us
to do Namaz and told us to help the poor people. Told us to establish D
one Madarasa. We offered both of them cup of tea and sent them
off.
After six-seven days, both of them came to my shop once again.
Me, Parveez, Mukthiyar and Zaheed were there in the shop. They
told us, we will not talk in shop, lets go to park and talk. All four of E
us went to park along with them. Both of them told about Quran
and said that, we have to establish an organisation of people, and
told us that it is not possible for the people to go to the mosques or
Dargah and pray, hence they are to be demolished. For this work,
15-20 persons are to be organised and the expenses for the same
shall be borne by the same organisation. As the matters that they F
were saying were not appropriate, I told them that I am getting a
phone call and I returned to the shop. Behind me, my friends also
came back. Accused-2 and 6 went back from the park only. All
four of us had talk amongst ourselves, and we decided that the
conduct of Accused-2 and 6 are not good, if they come back G
again, we will not entertain them. After few days, Javid had
received a call from the said persons, Javid informed that he has
told them not to come and we will not be available.
After the witness was declared hostile, he was cross examined
by the Special Public Prosecutor, when the witness stated:-
H
846 SUPREME COURT REPORTS [2022] 10 S.C.R.

A It is correct if stated that, in my statement I had stated that the
accused persons had informed me that Madarasas are to be
opened, Muslims are to be trained, for that finance needs to be
arranged. It is not correct if stated that, I had stated that Jihad to
be declared against the killings of Muslims by Hindus in Gujarat.
The said statement was flagged as EP-1. It is correct if stated
B
that, they had told me that, people are to be stopped from going to
Dargahs and we should make Dargahs non-existent. It is not
correct if stated that, by making Dargahs impure, communal
harmony to be disturbed and law and order situation should be
created and government should be weakened, they had informed.
C The said statement was flagged as EP-2. It is not correct if stated
that, the accused Afzal Pasha was trained in Dhaka regarding
Jihad and acquainted with the Chief of Lashkar-e-Toiba of Saudi
Arabia, Abu Hamja, Wali Ur Rahman and Abdul Rahman of
Nelagonda, that he needs to establish Lashkar-e-Toiba in
Karnataka secretly, and had stated that, you all have to co-operate.
D
The said statement was flagged as EP-3.
Accordingly, it is not correct if stated that, I had stated while we
were sitting in the park, the said accused said that, we will all
together, we will organise LeT in Bangalore, Hindus are killing
Muslims in Kashmir and at all parts of India, we will declare Jihad
E as said in Quran, we will destroy India through revolution, we will
collect money for LeT, we will bring the interested persons for
training, all the expenses will be borne by Abdul Rahman, I will
also train the joining persons temporarily. The said portion of the
statement was flagged as EP-4.”
F PW-4 (Firoz @ Firoz Pasha)
Accused-6, Munna was introduced to me by Chintamani watch
shop, Abdul Rahman. The said Munna is present in the court today
and he was identified. I used to go to tea stall to read news paper.
Then, I got acquainted with the Accused-4, Noorulla. He is also
G sitting in the Court today. When I went to Mulabagilu for Islam
religious canvassing, I got acquainted with Accused – 5, Irfan.
He is sitting in the court today and the witness have identified
him. I know the Accused-2, he is also present in the court today.
… …In Chintamani there are two Masjids, in those Masjids when
H we went for Namaz, the management there threw us out saying
MOHAMMAD IRFAN v. STATE OF KARNATAKA 847
[UDAY UMESH LALIT, J.]

that, there is a different custom in those Masjids. Therefore, we A
took a room and we used to Namaz there only. We made a trust
and had purchased land for the trust. Abdul Rehman was the
Chairman for that trust, 2nd Accused Afzal Pasha was the Vice-
Chairman, Accused-6 Munna was the Secretary for that trust,
Accused-4 Noorulla was the Joint Secretary, I was treasurer for
B
the trust. Accused Abdul Pasha had a fracture of bone of hand,
then Accused-1 Razu Rahman came to see him, then Abdul Pasha
introduced him to me that he was his friend in Saudi.
Abdul Rehman had organised a tea party in our house, one day.
On that day, Accused-1 Rahman told us that we all should be
united and should be co-operative with our neighbours. … … C

….. Evening at 7 pm he left after the Namaz. After that, I
had dropped Abdul Rahman to the Bangarpet Railway Station on
my Bike.”
After the witness was declared hostile, in response to the questions D
put by the Special Public Prosecutor, the witness stated:-
“It is not correct if stated that, in the statement that I had given to
the police, I had stated that, the Accused Afzal Pasha is the major
man in Lashkar-e-Toiba, he speaks about Jihad, he had informed
me that we will conduct a meeting at 5 PM in our house and as E
per his request when we gathered in my home, after introducing
that Afzal Pasha is the commander of Lashkar-e-Toiba of South
India, after that Abdul Rahman spoke and said that, the country
of India should be made into pieces, we will conduct a training
about Jihad, I will supply the gun, bomb and other required items,
you all organise yourselves declare Jihad and said that demolish F
Dargahs create communal clashes and create instability of
government. Listening to all this matter, we said it is not possible
to do all that here, we did not cooperate. Me, Jameer and Ameer
came back from the meeting without signing, and I had stated
that, we were present at the meeting, Munna, Noorulla Khan and G
Abdul Pasha signed. The said statement was flagged as EP-11.”
The witness was recalled and cross examined further by the Special
Public Prosecutor when the witness stated:-
“The trust that we have registered is Masjid O Mohammed Ya
Ahle Adees Trust. It is correct that the PW-5 Jameer, PW-6 Ameer H
848 SUPREME COURT REPORTS [2022] 10 S.C.R.

A and CW-11 Miyammed were also the members of the trust. When
the assused-1 came to my house, Afzal Pasha, Noorulla Khan,
Munna, Jameer and Ameer had come there. I did not question
that, why he is saying like that, when the Accused-1 told us that
we all should be united. Afzal Pasha is my childhood friend.
B I do not know about, the accused-1 is the South India
Commander of Lashkar-e-Toiba and has come to preach us. On
that day, the accused-1 was there at my home for about one and
half hour, he had only told that we all should be united. It is false
if stated that, Abdul Rahman in his speech told that, in India atrocity
is happening on Muslims, we all should declare Jihad unitedly, I
C will provide necessary training and required weapons and all. It is
not correct if stated that, Abdul Rahman had said like this, we did
not agree to this. Abdul Rahman was staying in Woodland Hotel.
Afzal Pasha is my relative.”
12. The Trust referred to in the deposition of PW4 was constituted
D pursuant to execution of Trust Deed (Ex-P27) on 10.12.2003, in terms
of which the Trustees were:-
“(i) Abdul Rehaman s/o Watch Maker Mohan Road;
(ii) Afsar Pasha s/o Noor Ahmed;
E (iii) Nijamuddin s/o Tajuddin;
(iv) Noorulla s/o Mehaboob Khan;
(v) C.M. Firroz Pasha;
(vi) Ammer Khan s/o Carpenter Vali Khan;
F (vii) Roshan Zameer s/o Syed Noorullah;
(viii) Syed Nayamat s/o Syed Amanulla; and
(ix) Tajuddin s/o late Abdul Razak”
Thus, Accused Nos. 2, 4 and 6 as well as PWs 4, 5, 6, 7 and 8
G were Trustees of said Trust.
13. It is accepted that Ex. P-92 is the Minute Book of said Ex. P-
27 Trust. Apart from the recovered arms and ammunition and explosive
materials, minutes of meetings as recorded in Ex.P.92 recovered from
A-2 are of some significance. The contents of Ex. P.92 show that the
H meetings were attended by some of the accused who signed the minutes.
MOHAMMAD IRFAN v. STATE OF KARNATAKA 849
[UDAY UMESH LALIT, J.]

The details in that behalf were captured in Paragraph 70 of the judgment A
of the Trial Court, which Paragraph, for facility is extracted hereunder:-
“70. I have perused Ex.P92 and the relevant page of the first
meeting is marked as Ex.P92 (c) and (d). The said meeting was
held on 10.12.2003 in the house of Fairoz at Chintamani, which
was attended by Accused Nos.1, 2, 4 and 6 along with some B
other members. As per its recitals, it goes to show that the Jihad
meeting was held at 5:00 P.M. and in the said meeting Accused
No.1 was introduced to all others. Further, it goes to show that
Accused No.1 addressed the meeting saying that in India muslims
are treated badly, Babri Masjid is demolished, muslims were killed
in Gujarat and we all should be prepared to fight against it. Further, C
it goes to show that Accused No.1 assured that he will supply
guns, bombs and also financial assistance, etc., for preparation of
Jihad training. Further, it goes to show that the members who
attended the meeting, namely Fairoz, Zameer and Ameer, dissented
with the Accused No.1 because if they do so, it will cause harm D
to the muslims and by saying so they walked out from the meeting.
The said meeting also discloses that other members agreed with
the Accused No.1 and meeting was concluded at 8:00 P.M.
Ex.P92(d) goes to show that Accused Nos.1, 2, 4 and 6 have
signed the minutes book. At Ex.P92 (d) after the signatures of
Accused No.2, there is a gap and it appears that something has E
been erased. The learned Special Public Prosecutor has argued
that one member who attended the meeting might signed after
Accused No.2, but as he came to know about the consequences,
he might have erased his signature. He further argued that the
persons who attended the meeting being descended with the F
decision of the accused the I.O. has cited them as witnesses. I
find considerable force in his arguments as because Ex.P92 (c)
and (d) goes to show that the witnesses, namely Fairoz, Zameer
and Ameer, dissented with the views of Accused No.1. Ex.P92
(f) goes to show that second meeting was held in the house of
Accused No.6 from 19.08.2006 and it was attended by Accused G
Nos.2, 4, 5 and 6. Ex.P92 (f) goes to show that in the said meeting
a society was formed in the name of Jamath-ul-Mujahiddin and it
was agreed in the meeting to cooperate the Jidhad training.
Ex.P92(a) and (h) goes to show that third meeting was held on
18.12.2005 in the house of Accused No.2 at Lakkasandra, H
850 SUPREME COURT REPORTS [2022] 10 S.C.R.

A Bangalore, and Accused Nos.2, 4, and 6 attended the same.
Ex.P92(g) and (h) also goes to show that Accused No.5 addressed
the meeting by saying that Islam was sent in the hands of
Paigambar to be superior to the other religion and Jihad has to be
declared if anybody causes damage to Islam. Ex.P92 (g) and (h)
also goes to show that Accused No.4 has addressed the meeting
B
by saying the Jihad has to be started by offering lunch (Davath)
and if anybody opposed Jihad has to be declared at any time.
Ex.P92 (g) and (h) also goes to show that the Accused No.2 has
addressed the meeting saying that Jihad has to be declared in the
name of God, in case killed he will be ‘Shahid’ and in case of
C survival he would become ‘Bahaddur’. Further, it goes to show
that Accused No.2 addressed to the effect that Kuwath means
‘power’ and by referring the handwritings of the book given by
Tariq Sahni of Bangladesh he told that the power is in bombs,
bandook and AK-47. Ex.P92 (g) and (h) also goes to show that
Accused No.2 instructed to the Accused No.4 and Accused No.6
D
to identify the Dargah and other important places, for that they
agreed. Ex.P92 (g) and (h) also goes to show that next meeting
was fixed on 31.12.2005 and the third meeting was concluded at
8:00 P.M. The advocate for the accused argued that there are
overwriting at Ex.P92. It is true that at some places we can see
E the overwriting. At Ex.P92 (c) at the top in date there is overwriting
of day, but not about the month and year. Similarly, at Ex.P92 (g)
also there is a overwriting of date. But, at the end of third meeting
date of next meeting has been specifically mentioned without there
being any overwriting. Similarly, in the recitals also some words
are striked out, but it will take away the meaning of the sentence.
F
Therefore, I am of the opinion that the overwritings are natural.”
14. PW25 – Anil Kumar Dubey, an independent panch witness,
stated inter alia about the recovery of Diary Exh.P-92. He deposed
that on 22.01.2006 he had accompanied the police and A-2; that when
they reached the house of A-2 the door was opened by his wife; that A-
G 2 took the police to a room and opened a suitcase which was lying below
the cot in the bedroom using the key that was with him, whereafter,
articles Exh.P-81, P-92, six video cassettes (M-15) and other articles
Exh.P-93 to P-104 were seized vide Panchnama Exh.P-105. The witness
stated that after the seizure was done in his presence, Panchnama, Exh.P-
H 105 was drawn and signed by him. He also stated that the police had
MOHAMMAD IRFAN v. STATE OF KARNATAKA 851
[UDAY UMESH LALIT, J.]

called a Moulvi from a Masjid in the neighbourhood, who read the names A
and some of the contents of the written material and books. The cross-
examination of the witness did not draw anything substantial to dispel
the credibility of the assertions made in the examination-in-chief.
PW29 Shahnawaz Ahmed deposed that he was called by the police
to translate the Urdu books and other material but denied that B
Panchnama was drawn in his presence. According to the witness, his
signatures at four places on Panchnama Exh.P-105 were taken later
and the contents of said Panchnama Exh. P-105 were not read out to
him. The witness was declared hostile and was cross examined by the
prosecution in which he accepted that he had never signed any document
without knowing the contents thereof. C

15. Exh. P-92, among other documents, was made over to PW-
67, Syed Asgar Imam, Hand Writing Expert, along with sample signatures
of the Accused. According to this witness, signatures on the sheets of
Exh. P-92 were marked as Q39 to Q44 and when said Expert compared
the sample signatures of the Accused with Q39 to Q44, the result showed:- D

(a) Q39 and Q40 matched with the sample signature of A-2.
(b) Q41 matched with the sample signature of A-5.
(c) Q42 matched with the sample signature of A-6.
E
(d) Q43 matched with the sample signature of A-4.
(e) Q44 matched with the sample signature of A-1.
The relevant portion from the testimony of PW-67, Syed Asgar
Imam was as under:-
“Since 1981, I am working as handwriting and document experts F
in FSL, Bengaluru. I am science graduate and I have also got
special diploma course in handwriting and document examination,
from institute of criminology and Forensic Science, Ministry of
Home Affairs, Government of India, New Delhi.
In my tenure I have examined number of questioned G
documents and I have given my opinion.
On 14/3/2006, I have received following documents from
A.C.P. Yeshawanthapura Sub-Divn. Bengaluru City, for my
examination and my opinion in Cr. No.3/06 of Sadashivnagar
P.S. H
852 SUPREME COURT REPORTS [2022] 10 S.C.R.

A 1. One small pocket diary containing questioned writings,
marked as Q1 to Q24 by the I.O. Now I see that said pocket
diary already marked as Ex.P.54. It bears my signature.
2. Three loose chits containing questioned writing, marked as
Q25 to Q30 by the I.O. Now I see the said three chits,
B already marked as Ex.P.51 to 53. It bears my signature.
3. One small pocket note book (New) containing questioned
writing marked as Q31 to Q38 by the I.O. Now I see the
said one small pocket notebook already marked as Ex.P130.
It bears my signature.
C
4. One 2003-diary containing questioned writing and signature
in six sheets marked as [Q39 to Q44] by the I.O. Now I
see the said one 2003 diary already marked as Ex.P.92. Its
relevant sheets of questioned writing is now marked as
Ex.P.92 (c) to (h). it bears my signature.
D
5. One small telephone pocket diary (new) Q45 to Q50 by the
I.O. Now I see the said one telephone pocket diary already
marked as Ex.P.135. It bears my signature.
6. One small pocket book containing questioned writing marked
as Q51 to Q55 by the I.O. Now I see the same already
E
marked as Ex.P. 113. It bears my signature.
7. One loose page of a note book containing questioned writing,
marked as Q56, Q57 by the I.O. Now I see the same already
marked as Ex.P.114. It bears my signature.
F 8. One small pocket note book containing questioned writing
marked as Q58 to Q60 by the I.O. Now I see the same
already marked as Ex.P.116. It bears my signature.
9. One small pocket book containing questioned writing marked
as Q61 to Q79 by the I.O. Now I see the same already
G marked as Ex.P.148. It bears my signature.
10. Eight chits containing questioned writing marked as Q80 to
Q91 by the I.O. Now I see the same already already marked
as Ex.P.149, 150, 151, 138, 141, 139, 140 and 142. It bears
my signature.
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 853
[UDAY UMESH LALIT, J.]

11. Specimen writing said to be of Mehboob Ibrahim on six A
sheets, marked as EW1, EW2, SW1 to SW4 by the I.O.
Now I see the same already marked as Ex.P.190 to Ex.P.195.
It bears my signature.
12. Specimen writing and signature to be of Afsar Pasha on
ten sheets, marked as EW3, EW4, SW5 and SW8, S1 and B
S4 by the I.O. Now I see the same already marked as
Ex.P. 196 to 205. It bears my signature.
13. Specimen writing and signature said to be of Mohammed
Irfan on six sheets marked as EW5, EW6, SW9, SW10, S5
and S6 by the I.O. Now I see the same already marked as C
Ex.P.206 to Ex.P.211. It bears my signature.
14. Specimen writing and signature said to be of Noorull Khan
on four sheets marked as EW7, EW8, S7, S8 by the I.O.
Now I see the same already marked as Ex.P.181 to 184. It
bears my signature. D
15. Specimen writing and signature said to be Najmuddin on
four sheets, marked as of Najmuddin on four sheets, marked
as EW9, EW10, S9 and S10 by the I.O. Now I see the
same already marked as Ex.P.185 to 188. It bears my
signature. E
16. Specimen writing and signature said to be of Chandpasha
on six sheets marked as EW11, EW12, SW11 and SW12,
S11 and S12 by the I.O. Now I see the same marked as
Ex.P.227 to Ex.P.232. It bears my signature.
17. Specimen signature said to be of Mohammd Razhur Rehman F
on two sheets, marked as S13 and S14 by the I.O. Now I
see the same marked as Ex.P.223 and Ex.P.234. It bears
my signature.
After thorough and scientific examination of the above
question and specimen writings and signatures I came to the G
following opinion:-
1. The specimen writing marked as EW1, EW2, SW1 to SW4
and questioned writings marked as Q2, Q3, Q4 are written
by one and the same person.
H
854 SUPREME COURT REPORTS [2022] 10 S.C.R.

A 2. The specimen writings marked as SW7, SW8, EW3, EW4,
S1, S2 and questioned writing marked as Q31 to Q40 Re-
examination written by one and the same person.
3. The specimen writings and signatures marked as EW5,
EW6, SW9, SW10 and S5, S6 and questioned writings and
B signatures marked as Q47 to Q50 and Q41 are written by
one and the same person.
4. The specimen writings and signatures marked as EW7,
EW8, S7 and S8 and questioned writings and signatures
marked as Q53, Q54 and Q43 are written by one and same
C person.
5. The specimen writings and signature marked as EW9,
EW10 and S9 and S10 and questioned writings and signature
marked as Q56 to Q60 and Q42 are written by one and the
same person.
D 6. The specimen writings marked as EW11, EW12, SW11,
SW12 and questioned writings marked as Q86 are written
by one and the same person.
7. The specimen signatures marked as S13, S14 and questioned
signature marked as Q44 are written by one and the same
E person.
8. It has not been possible to express the opinion questioned
writings marked as Q1, Q5 to Q30, Q45, Q46, Q51, Q52,
Q55, Q61 to Q85, Q87 to Q91 on the basis of specimen
writings on hand.
F Accordingly, I have issued the certificate in this regard now.
I see the same marked as Ex.P.235 and my signatures are marked
as Ex.P.235(a) to (c). The said certificate is counter signed by the
Assistant Director, FSL and forwarded to the I.O. by the director.”
Nothing substantial came out in the cross-examination conducted
G on behalf of the Accused with respect to Exh. P-92. The signatures of
A-1, A-2, A-4, A-5 and A-6 on some of the minutes, according to the
Prosecution, were thus proved beyond any doubt.
16. The recovery of books and literature recovered from the
Accused, which according to the Prosecution was inflammatory material,
H may now be dealt with:-
MOHAMMAD IRFAN v. STATE OF KARNATAKA 855
[UDAY UMESH LALIT, J.]

(A) On 22.01.2016, A-2 took PW72 to his house leading to the A
recovery of certain literature and books which according
to the Prosecution were inflammatory. The literature
comprised of a book named as ‘Taqbeer’ (Exh.P-81), a
book called ‘Jihad’ containing 66 pages (Exh.P-82),
literature under caption ‘Jamaat-e-Mujahiddin’ (Exh.P83),
B
a book named ‘Hazarath Mohammed Kajikar’ (Exh.P-
84), a book by name ‘Warning’ (Exh.P85), a book named
‘Albalaaq’ (Exh.P-87 and Exh.P-88), a book named
‘Yehoodiyonki Tarahim’ (Exh.P-90) and collection of 40
Pamphlets (Exh.P-91), apart from the aforesaid Diary
(Exh.P-92). C
(B) Pursuant to the voluntary statement made by A-3, four books
namely; Jadul Mujahiddin, Albalaq, Taqbeer and Biddat,
Exhs.P-64 to P-67 respectively were recovered as per
Panchnama Exh. P-68.
(C) The voluntary statement of A-5 led to the recovery of books D
named Dastani Mujahid and Jihad (Exhibits P-76 and P-
77) and some letterheads.
17. The Prosecution also relied upon the confessional statements
of Accused Nos. 4, 6 and 7 which were recorded by the 9th Additional
Chief Metropolitan Magistrate, Bangalore City and marked as Exhibits E
P-268, P-269 and P-270 respectively.
18. After considering the material on record, the Trial Court in its
judgment dated 17.12.2011, took the view that the sanction accorded by
the Under Secretary in respect of the offences punishable under the
provisions of Sections 10 and 13 of the 1967 Act was defective. F
19. The documents, books and literature referred to above were
dealt with by the Trial Court in Paragraphs 53-56 of its judgment as
under: -
“53. At the earlier stage I have made a note that all the Urdu
G
Books seized by the I.O. from each accused will be considered
together. I have observed about the seizure of the books and other
documents from Accused No.2 by the I.O. under Ex.P105. The
books and documents seized from Accused No.2 are marked as
Ex.P81 to 90. The Book namely Taqbir is marked as Ex.P81. The
book ‘Jihad’ is marked as Ex.P82. The Book ‘Jamal-e Mujahiddin’ H
856 SUPREME COURT REPORTS [2022] 10 S.C.R.

A is marked as Ex.P83. The Book ‘Hazarath Mohammed Zakikar’
is marked as Ex.P84. The Book ‘Warning’ is marked as Ex.P86.
The weekly magazine ‘Albalaaq’ is marked as Ex.P87 to 88.
One book is written by Raithullah Faruqui is marked as Ex.P89
and 40 pamphlets are marked as Ex.P90. PW-72 in his evidence
B has stated that, he has secured the neighbouring witness Shahnawaz
Ahmed, who knows Urdu as pancha to know the contents of the
said book. The said witness is examined as PW-29. This witness
turned hostile and not supported the prosecution case. To some
extent he has stated that one Mohammed Anwar and Lakkasandra,
landlord, called him to translate the Urdu Books. Further, PW-29
C
has stated that he went to the house and the police were present
in the house of Anwar. He has also stated that the police told him
to translate Urdu Book and he translated the books given to him.
Though this witness has turned hostile about conducting of the
panchanam i.e. Ex.P105, to some extent we can gather that he
D has translated Urdu Books to the police. PW-72 has stated that
on the books i.e. Ex.P81(Taqbir) there is a symbol of crossed
Rifle and Sword. PW-72 has stated that the witness, namely
Shahnawaz Ahmed has verified the book and told that in the 9
Chapter there is a phrase as “Bharath mit janewala hai”, in the 10
Chapter as “Haath me gun utao”, and in the 14th Chapter “Lashkar
E
-e-Taiba”, PW72 has stated that, the relevant chapters were
marked in red ink and PW-29 has explained the meaning of the
relevant chapters. PW-72 has further stated that said Shahnawaz
told that those articles are anti-national and provocative. PW-72
has also stated that the said witness Shahnawaz explained the
F meaning of the other books also. PW-72 also further stated that
the witness Shahnawaaz told that in the book ‘Warning’ it is written
about the demolition of Babri Masjid and also about the wrong
Act by the order communities on Dargas.
54. As I discussed at earlier stage about the seizure of books
G Ex.P64 to 67 from Accused No.3 Ex.P64 is ‘Jadul Majahiddin’,
Ex.P65 is ‘Albalaaq’, Ex.P66 is ‘Taqbir’ and Ex.P67 is ‘Biddath’.
PW-50 is the Police Official, who seized the Ex.P64 from Accused
No.3. PW-50 in his evidence has stated that, the contents of the
said books were explained by Rukman Ahmed, who knows Urdu.
The said witness examined as PW-27. He turned hostile and not
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 857
[UDAY UMESH LALIT, J.]

supported the prosecution case. But, this witness by seeing Ex.P66 A
i.e. ‘Taqbir’ explained the ‘Taqbir’ means ‘Voice of Allah’. This
witness has also stated that in one Part at page No.166 it is
mentioned that ‘India will destroy’ and also it is written that, ‘to
hold the gun’ and the said book is printed at Pakistan. He has also
stated that, at Page No.64 there is a recital about glorifying of
B
injured persons in Jihad. PW-50 also in his evidence stated that,
PW-27 has examined the book ‘Taqbir’ and informed that in the
9th Chapter it is written as ‘Bharath mit janewala hai’ and in the
said book at 10 chapter it is written as ‘Haath me Gun utao’. PW-
50 further stated that, the witness i.e. PW-27 has examined the
contents of the books seized by him. The advocate for Accused C
No.2 and 3 vehemently argued that it is practically impossible to
know the contents of all the books within a short period and to
translate it. They have also argued that by picking up some
sentences, the meaning of the book cannot be gathered and only
after reading the entire book only the real meaning of the book D
can be extracted. On perusal of the evidence of PW-50 and PW-
72 it appears that some important chapters were only got explained
by them. It is an admitted fact that the true translation of entire
book are not furnished. The I.O. has referred all the books to the
Chairman, Urdu Academy, for its translation. The then Chairman
of Urdu Academy, namely M. Nooruddin is examined as PW-65. E
He has stated that during the year 2006 he was working as
Chairman at Urdu Academy and also he has stated that he has
obtained M.A., Ph.D., in Urdu language. He has also stated that
in the month of July or August 2006 A.C.P., Yashwanthpura Sub-
Division, has sent some Arabic and Urdu Books for their translation F
to English. He has also stated that about 15 books were handed
over to him, namely Sunflower notebook, ‘Alballaq’ Weekly
Magazines, ‘Biddat’, ‘Jadul Mujahiddin’, ‘Tagbir’, ‘Jamale-
Mujahiddin’, ‘Warning’, ‘Kya Aurath Masjid ya Edga nahi ja
sakthi’, two weekly magazines of ‘Albalaaq ke Jerayum’, 40
Pamphlets of ‘Jadul Mujahiddin’ and ‘Vedon ki duniyan me’. PW- G
65 has further stated that because of shortage of time he took the
assistance of his colleague. During the cross-examination he has
admitted that all the 15 books were read by his friend. He has
also admitted that, his friend has underlined some portion which
were only read by him. As argued by the advocate for the accused H
858 SUPREME COURT REPORTS [2022] 10 S.C.R.

A without reading the entire text, the real meaning cannot be
extracted. It is true that PW-62 has stated that, he has read the
portion which were underlined by his colleague. Here I am to
observe that as Stated by PW-65 in the Chief Examination itself
stated that because of shortage of time he took the assistance of
colleague, who well-versed in Urdu and Arabian language. The
B
person who assisted him is none other than the colleagues of PW-
65. PW-65 has stated that he has given the gist of all books given
to him in his report as per Ex.P225. He has stated that the gist of
Ex.P76 is that “democracy is not suitable to establish Islam religion
and it is inevitable to kill to secure power”. He has also stated
C that, in Page No.16 of Ex.P76 it is written that the muslim
community is suppressed by majority communities and the aim is
not to awoke muslim community and the muslim should not prepare
with arms’, As such, the meaning is majority communities attacking
on the muslims. Further PW-65 has stated that in the said book it
is also written that ‘as muslims are minority community, in a
D
democratic system they cannot secure power’. He has also stated
that in the book ‘Taqbir’ i.e. Ex.P81, it is written that ‘India will
destroy’ and also written that ‘to take gun in the hands’. It is also
written that ‘Lashkar-e-Toiba’ destroy the kaphirs and Lashkar-
e-Toiba is fighting for good things. Further, PW-65 has stated that
E he has given the gist of Ex.P64 i.e. Jadul Mujahid book and its gist
is that ‘Prophet has told to attack on India’. PW-65 has stated
that, in fact the prophet has not told so, PW-65 has specifically
stated that this book is provocative and most dangerous. He has
also stated that, the book Ex.P89 ‘Mujahid-ke-Azad’ is also
provocative and anti-India. Relating to Ex.P81 the Special Public
F
Prosecutor has argued that, Kaphirs are those ‘who deviate from
the Islam path’. As Per Ex.P81 it is a war against non-muslims.
Much has been argued on both sides about the meaning of Jihad.
He has referred the book Islam, sex and violence, written by Anwar
Sheikh. In the 7th Chapter, the Author has examined Jihad as
G “Jihad is an Arabic word, which literally means ‘endeavour’
but as an Islamic doctrine, it implies fighting in the way of
Allah (the Arabic God) to establish his supremacy over
unbelievers until they relinquish their faith to become muslims
or acknowledge their subordination by paying a humiliation-
H tax called ‘JAZYIA’.”
MOHAMMAD IRFAN v. STATE OF KARNATAKA 859
[UDAY UMESH LALIT, J.]

55. The advocate for the Accused No.3 referred website copy A
Wikipedia, wherein Jihad is described as follows:
“According to the authoritative Dictionary of Islam jihad is
defined as: “A religious war with those who are unbelievers in
the mission of Muhammad enjoined especially for the purpose
of advancing Islam and repelling evil from Muslims.” “ B
56. By referring terrorist organizations, the Special Public
Prosecutor argued that, in the name of Jihad these organizations
are engaged in destructive activities. As an example he has referred
terrorist attacks on World Trade Organisation, attack on Parliament
of India and on Hotel Taj of Bombay. In this case we are not C
concerned about the other incidents and we have to see the
materials placed in the present case. If we fall back to the evidence
PW-65 we can see that he has categorically stated that some of
books which were seized in this case are provocative, dangerous
and also anti-India. PW-65 is a responsible person. Therefore,
though he has not furnished the entire translation the gist of the D
book which he has furnished has to be accepted.”
20. Considering the recovered articles and their connection sought
to be established through the other material on record and the inference
that could be drawn from such aspects, the Trial Court concluded:-
E
“In the foregoing paras I have also discussed about the
seizure of provocative articles from Accused Nos.2 and 3 which
are dangerous and anti -national. I have also discussed in the
foregoing paras about the seizure of explosive substance, arms
and ammunitions by the Investigating Officer from Accused Nos.2,
3, 4 and 6 at different places. It is true that when the Accused F
No.3 was arrested, the Investigating Officer has seized some
explosive substance. But, with respect to Accused Nos.2, 4 and 6
based on their voluntary statement explosive substance, and arms
and ammunitions were seized. As held in the decision reported in
2007 Crl. L.J. 1386 which I have mentioned above, in the present G
case also presumption under Section 111A of Indian Evidence
Act cannot be drawn. But, in the said case – law it is also held
that it is incumbent on the prosecution to prove that the collection
of men, arms and ammunitions was for no other purpose, but to
prepare to wage war against the Government of India to establish
the offence under Section 122 of Indian Penal Code and it is H
860 SUPREME COURT REPORTS [2022] 10 S.C.R.

A necessary for the prosecution to establish that the fire power or
the potential devastation which could be caused by the arms and
ammunitions recovered from the accused was such that it would
point to the design to prepare to wage a war against Government
of India. As I mentioned above the I.O. has seized explosive
substance from Accused No.6. Ballistic expert opinion and F.S.L
B
Report of explosive substance are in favour of the prosecution. It
is true that the documents seized from Accused No.1,5 and 7
does not amount to incriminating. I have also observed that
confession statement of the accused does not help the prosecution
case. But, as I discussed above Ex.P92 clearly goes to show their
C active involvement in Jihad activities. Merely because there is a
reference of word ‘Jihad\ that alone does not constitute waging
war, but at Ex.P92 there is a reference to such an extent that the
Accused No.1 assured to supply gun, bomb, etc. for Jihad, Ex.P92
(h) further goes to show that in Jihad meeting Accused No.4 and
Accused No.6 were entrusted to identify the important place and
D
Dargas, which goes to show that the accused had intention to
commit the terrorist activities, such as, blasting of important places
including Dargas. The circumstances which I discussed above
goes to show that Accused No.1 to 6 conspired and abetted to
wage war against the Government of India and they have made
E the preparation in this regard, so also with a common intention
they have kept explosive substance, arms and ammunitions in the
secret place. No materials were placed about the involvement of
Accused No.7. As the activities of Accused Nos.1 to 6 at the
preparation stage I am of the opinion that Section 153-A and 153-
B of Indian Penal code does not attract. With these observations
F
I answers these points partly in affirmative and partly in negative.”
21. After placing reliance on the decisions of this Court in Kehar
Singh and ors. vs. State (Delhi Admn.)9 and Nazir Khan and others
v. State of Delhi10, on the aspect of conspiracy entered into by the
Accused and the nature of offences committed by them, the Trial Court
G observed: -
“73. In the above said decision their Lordships have also observed
that the most important ingredient of the offence of conspiracy is
9
AIR 1988 SC 1883: 1988 SCR Suppl(2) 24
H 10
AIR 2003 SC 4427: (2003) 8 SCC 461
MOHAMMAD IRFAN v. STATE OF KARNATAKA 861
[UDAY UMESH LALIT, J.]

the agreement between two or more persons to do an illegal act. A
The illegal act may or may not be done in pursuant of agreement,
but the very agreement is an offence and is punishable. Reference
to Section 120-A, 120-B of Indian Penal Code would make these
aspects clear beyond doubts. Entering into an agreement by two
or more persons to do an illegal act or legal act by illegal means is
B
the very quintessence of the conspiracy.”
22. In light of the discussion as aforesaid, the Trial Court by its
judgment dated 17.12.2011 acquitted the Accused of charges under the
provisions of the 1967 Act for want of requisite sanction. Further, it
acquitted A-7 of all the charges but found A-1 to A-6 guilty as under:-
C
“Acting under Section 235(2) of Criminal Code of Procedure
accused No.1 to 6 are convicted for the offences punishable under
Sections 120-B, 121-A, 121 of the Indian Penal Code, Sections 5
and 6 of the Explosive Substances Act and Section 25 and 26 of
the Arms Act.
D
Acting under Section 235(1) of Criminal Code of Procedure the
accused No. 7 is acquitted for the offences punishable under
Sections 10, 13 of the Unlawful Activities (Prevention) Act, Section
120-B, 121-A, 121, 153-A, 153-B of the Indian Penal Code and
Sections 5 and 6 of the Explosive Substance Act and Sections 25
and 26 of the Arms Act. E

Acting under Section 235(1) of Criminal Code of Procedure
accused Nos. 1 to 6 are acquitted for the offences punishable
under Sections 10 and 13 of the Unlawful Activities (Prevention)
Act and Sections 153-A, 153-B of Indian Penal Code.”
F
By its Order of Sentence dated 19.12.2011, the Trial Court imposed
substantive sentences, as tabulated in paragraph 2 hereinabove.
23. Four appeals, as detailed in paragraph 3 hereinabove, arising
from the judgment and order passed by the Trial Court, were dealt with
and disposed of by the High Court vide its judgment and order presently
G
under challenge.
A) On the issue of sanctions accorded in respect of various
offences, the High Court found: -
“34. As per Section 45 of Unlawful Activities (Prevention) Act,
1967, the Central Government has named the Secretary of the H
862 SUPREME COURT REPORTS [2022] 10 S.C.R.

A State Government, Home Department to be the competent
authority to issue sanction order. In this case, PW-73 Bipin Gopala
Krishna, Additional DGP has perused the entire materials on record
and recommended for grant of sanction order to the State
Government, Home Minister and the Chief Minister and after it
came back to him, he in fact, found sufficient materials and prima
B
facie case to grant approval, that means he has taken the decision
to accord sanction as under the provisions of IPC, the Government
is the sanctioning authority. Perhaps that may be reason, he has
sent the papers to the Government, but actually it is shown that he
has taken the decision on finding prima facie material that it is a
C fit case to grant sanction order and in fact, while file came back
from the Chief Minister and the Home Minister’s office, consenting
to accord sanction, he sent the same to the Under Secretary to
communicate the decision taken by him and the Government order
to the police that, it is a fit case to prosecute the accused. The
D Government and PW-73 have rightly accorded sanction under
Section 196 of Cr.P.C. and section 45 of the Unlawful Activities
(Prevention) Act.
35. What is to be looked into from the evidence of these witnesses
is that PW-73 Bipin Gopala Krishna, Addl. D.G.P., Internal Security,
has deposed that while he was working as a Secretary, P.C.A.S.,
E
Home Department, Bengaluru, on 1.4.2006 he received a request
from the Commissioner of Police, Bangalore City, seeking sanction
for prosecution from the Government and he is the competent
authority to issue sanction order. The entire materials passed
through him has been examined by him and decided to accord
F sanction and thereafter he obtained the ratification from the
Government and then ordered to issue sanction order through the
Under Secretary. We can understand if PW-73, who was the then
Secretary to the Home Department has not at all come to the
conclusion that it is a fit case to accord sanction, the things would
G have been different, but he has rightly applied his mind and taken
a decision. The Under Secretary of the Home Department has
only communicated the sanction order on behalf of the
Government.
36. As could be seen from the entire records, we would say that
it is the decision taken by PW-73 on behalf of the Government.
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 863
[UDAY UMESH LALIT, J.]

Therefore, in our opinion, the sanction accorded to prosecute the A
case u/s.120- B, 121, 121-A, 122, 124-A, 153-A and 153 and as
well under the Unlawful Activities (Prevention) Act, 1967 are
valid and correct. The trial Court has persuaded itself that it is
only the Under Secretary who has taken the decision, and wrongly
rejected the sanction order so far as it relates to the offence u/
B
s.10 and 13 of the Unlawful Activities (Prevention) Act, 1967. In
our opinion, the said stand taken by the learned Trial Judge is not
correct. The trial Court ought to have held that even the sanction
accorded to prosecute the accused for the offence punishable
under Sections 10 and 13 of the Unlawful Activities (Prevention)
Act, 1967 is also valid. We accordingly hold that the trial Court C
has committed a serious error in doing so. We hold that the
prosecution has also proved that the sanction accorded by PW-73
though it is ratified by the Government or approved by the
Government, it is virtually the decision taken by PW-73 is evident.
Therefore, the sanction order so far it relates to Section 10 and 13
of the Unlawful Activities (Prevention) Act, 1967 is also valid and D
correct.
37. So far as it relates to sanction under the Explosive Substances
Act and u/s.39 of the Arms Act, PW-70 Ajay Kumar Singh, the
Commissioner of Police has accorded sanction, while he was
working as Commissioner of Police, at Bengaluru. He has E
categorically stated in his evidence that he has issued the sanction
order as per Ex.P-266. He has deposed that, on 1.4.2006, he has
received a report from the Deputy Commissioner of Police, Central
Division along with the report of the ACP, Yeshwanthpur and also
the documents like FIR, FSL report etc., and after studying the F
report and the documents he has accorded sanction as per Ex.P-
266 and he has stated that he has also issued sanction u/s.7 of the
Explosive Substances Act after going through the entire materials
on record. Therefore, the Commissioner of Police, city of
Bangalore has issued sanction order under Ex.P-266 and P-267
for the offence punishable under Arms Act and Explosive G
Substances Act.”
B) While affirming the acquittal of A-7, the recoveries from A-1
to A-6 and the material on record were considered from the standpoint
as to whether conspiracy as alleged was proved or not. The questions
were posed as under:- H
864 SUPREME COURT REPORTS [2022] 10 S.C.R.

A “78. In this background, Court has to consider whether any
materials are available to show the conspiracy between accused
Nos.1 to 6 who are convicted by the trial Court and find out whether
the recovery of the incriminating articles at the instance of accused
Nos.2 to 7, whether it establishes the conspiracy being held
between accused nos.1 to 6 and that conspiracy is with regard to
B
destabilize the Government of India and also create any communal
dis-harmony amongst the people of India and whether they are
anti social elements and also their conduct coupled with recovery
amounts to any offence committed by them as invoked by the
police.”
C C) While dealing with the effect of Exhibits P-27 and P-92 in light
of the evidence on record, the High Court stated:-
“87. PW4-Firoz @ Firoz Pasha has admitted that A-2, A-4, A-5
and A-6 including A-1 were all known to him and he knew A4
since childhood. He further deposed that there were two Masjids
D and this witness was also attending Masjid to offer Namaz. In
fact, the accused Nos.2 to 6 were ousted from Masjid as their
Namaz procedures were different. He has also stated admitting
that A-1 came to Chinthamani and A-2 has introduced A-1 to him
on the ground that A-1 and A-2 had become friends at Saudi
E Arabia. Though, he denied that, in the said meeting they met each
other at Chinthamani, A-1 has given a provocative speech to other
accused persons that the Muslims have to declare Jihad and he
would supply money, Bomb and also give training to destroy India.
However, it clearly goes to show that A-1 to A-6 were known to
each other and A-1 came to Chinthamani and he met all the other
F accused persons and had talk with them. In this background, one
has to understand the contents of Ex.P-92.”
D) The contents of Exhibit 92 were then considered as follows:-
“94. The sum and substance of the recitals in Ex P 92 (c) and (d)
G disclose that ‘Jihad’ meeting was held between the accused persons
and other so called trustees under the guise of a religious meeting.
Abdul Rehaman (A-1) was introduced to the others by Afsar
Pasha (A-2). A-1 addressed the meeting saying that in India
Muslims are treated very badly (terribly/dreadfully) and Babri
Masjid has been demolished. Muslims were killed in Gujarat and
H all the Muslims have to fight against this. A-1 would supply money,
MOHAMMAD IRFAN v. STATE OF KARNATAKA 865
[UDAY UMESH LALIT, J.]

guns, bombs and explosives etc., In the same meeting, it is also A
narrated that the other trustees Firoz, Jameer and Ameer who
have not supported the speech of A-1, they were reluctant to
participate by saying that if they do such illegal acts as preached
by A-1, that, it would cause inconvenience to the Muslim
community, in India and therefore, they all went away from the
B
meeting. But other persons A-2 A-4 and A-6 who have accepted
the speech of A-1 subscribe their signatures to the said meeting
including A-1 who has put his signature and the meeting was
concluded at 8.00 p.m.
95. Of course, there is some over-writing with regard to the date,
which appears to have been overwritten as 10 instead of 12 and C
there is over-writing with regard to the name of Firoz at item
No.7. But the evidence of the above said witnesses as already
noted, it is their case that they are conducting meetings together
for the benefit of the Trust and that they admitted that Ex.P-92 is
their meeting book. It is the responsibility of the accused to explain D
if there is any over-writing or any mistake in the said document,
because even the signatures of A-1, A-2, A-4 and A-6 have also
been sent to experts and the experts have also given opinion that
it is the signature of A-1, A-2, A-4 and A-6.
*** *** *** E
100. The sum and substance of the Kannada version goes to
show that A-5 addressed the said meeting by saying that Islam
was sent in the hands of Paigambar, which is superior to all the
other religions. The ‘Jihad’ has to be declared if anybody causes
damage to it. A-6 also addressed the said meeting by saying that
‘Jihad’ has to be started by offering lunch (Davat) and if anybody F
opposes, ‘Jihad’ is to be declared at any time. Afsar Pasha (A-2)
also addressed the said meeting saying ‘Jihad’ has to be declared
in the name of God in case anybody is killed they will become
‘Shahid’. A-2 also further addressed explaining what is meant by
Kuwath, that “Kuwath” means “Power” and referring to the G
hand-writings of the book given by Tariqsahni and Bangladesh.
A-2 told that the power is in Bombs, Bandooks and AK-47. A-2
instructed A-4 and A-6 to identify the Dargas and other important
places for that they all agreed. Ex.P92(g) also goes to show that
the next meeting was fixed on 31.12.2016 by saying so the 3rd
meeting was concluded at 8.00 p.m. H
866 SUPREME COURT REPORTS [2022] 10 S.C.R.

A 101. Looking to the above said Ex.P-92(c) to (h), it discloses and
at any stretch of imagination, it cannot be said that they are all
religious meetings pertaining to the Trust, that they have
categorically admitted that this Ex.P-92 is the minutes book
pertaining to the Trust, there is not even a mention of any objectives
of the Trust and the policies. On the other hand, the entire meetings
B
were held for the purpose of taking action of revenge, for
demolishing of Babri Masjid and killing of Muslims in Gujarat and
for that purpose they are taking training and collecting guns, bombs
etc., In this background, the court has to understand the purpose
of meeting of minds of A-1, A-2, A4 to A-6 who have actually
C participated in these meetings particularly A-1, A-2, A-4 and A-6
in the first meeting and A-2, A-4 to A-6 in other meetings. Of
course, conspicuously A-3 has not been participated in any of
these three meetings.”
E) Other material on record was considered thus:
D “116. Apart from giving the above said report, in fact, some of
the seized books have been shown to him. After seeing Ex.P-76,
which is named “Sunflower note book” as true, hand written by
one Shaik Abdul, belonging to Soudi Arabia which was published
in Bangladesh. The contents of the said document spoken to by
E PW-65 is that-
“Democracy is not suitable to establish Islam religion and
it is inevitable to kill to secure power’.
He has also written in the said book at page 16, that “the
Muslim community is suppressed by majority communities and
F the aim is not to awoke Muslim community and the Muslim should
not prepare with arms.” The meaning is majority communities
are attacking on the Muslims. PW65 has further deposed that in
the said book, it is also written that in a democratic system, the
Muslims cannot secure power. The witness has also deposed by
G looking into Ex.P-81, the book ‘Taqbir’ which contain the
quotations like “India will destroy”, to take gun in the hands and
LeT destroy the Kaphirs and ‘Lashkar-e-Taiba’ is fighting for
good things. PW-65 on seeing Ex.P-64 a book by name ‘Jadul
Mujahid’ book and its gist is ‘Prophet has told to attack on India.
Further, PW-65 has clarified that at no point of time, Prophet
H Mohammad has stated so. However, he states that the narration
MOHAMMAD IRFAN v. STATE OF KARNATAKA 867
[UDAY UMESH LALIT, J.]

of the fact in such a manner in Ex.P-64 is provoking and it is very A
dangerous. He has stated that the book Ex.P-89 ‘Mujahid-ke-
Azad’ is also provocative and anti national. He has also admitted
that the Kaphirs are those who deviate from the Islam path’ and
Ex.P-81 also says that ‘waging war’ against non Muslims. It is
admitted that some of the books contain about ‘Jihad’. This witness
B
has also stated that after looking into the books he has given such
information he has also admitted that he has not read the entire
books, but whatever the contents shown to him, he has actually
disclosed the same to the court. On looking into the above said
evidence of PWs.50, 72, 65 and 29 coupled with Ex.P92 as referred
to above, we can safely hold that the accused persons 1, 2, 4 to 6 C
have indulged in provocative and dangerous activities against India,
though their acts have not been implemented, nevertheless, their
mind set has been made very much clear. PW-65 is a responsible
person has categorically stated that the books which were
recovered at the instance of A-2, A-3 and A-5 have clearly
D
discloses that they contain very dangerous articles and anti India
recitals particularly those books provoked for destruction of the
Indian country.”
F) The recoveries made from the individual Accused as well as
the impact thereof was then considered as under: -
E
“120. We have already extensively discussed about recovery of
some articles at the instance of the accused persons. Of course,
there is no incriminating articles recovered at the instance of
Accused No.1. Though voluntary statement of Accused No.1 was
recorded as per Ex.P.262 and under Exs.P32 and P39 (mahazars),
the police have recovered 1 pocket diary (MO.1), one mobile F
phone (MO.10), 1 passport (Ex.P40), 6 chits containing phone
numbers (Exs.P41 to P46) and 4 passport size photographs
(Exs.P47 to P49). In fact these articles are not incriminating, as
the prosecution has not able to establish any connectivity of these
materials with Accused No.1 with other accused persons, though G
these materials recovered includes the mobile phone of Accused
No.1.
121. It is evident from the records that from A-2, under Exs.P.129
and P.69, the police have recovered 1 mobile phone (MO.17), Re
Book (MO.18), a small diary (Ex.P130), DL (Ex.P131), STD Bill H
868 SUPREME COURT REPORTS [2022] 10 S.C.R.

A (Ex.P.132), Visiting Card (Ex.P133) and a bill with phone
Nos.(Ex.P134) and also one letter head (Ex.P70), 1 postal cover
(Ex.P71), letter (Ex.P72), 1 passport from (Ex.P.73), 1 Affidavit
(Ex.P74). According to the Investigating Officer, he has not
collected any material to connect the accused with these articles
in the crime, therefore, they are also not relevant to be discussed.
B
However, voluntary statement of A-2 was recorded under ExP.273
and on 21.02.2016 Mos.2 to 9 were recovered at the instance of
A-2, which are very much important. In fact, these articles are
incriminating and in fact they are dangerous articles i.e. Electrical
detonators, Gelatin Sticks, 114 metal pellets and 3 hand grenade
C and other articles. Though under Ex.P.105, some books have been
recovered, we have discussed the connectivity of those books
with the crime already in the aforenoted paragraph.
122. From A-3, on the basis of his voluntary statement (Ex.P.272)
under a mahazar (Ex.P.15), some chits containing phone numbers,
D small telephone diary, courier receipts, small chit of accounts, three
photographs were recovered, which are marked at Exs.P.51 to
P.59). These are also not incriminating and no connectivity is
established from these articles. However, as we have mentioned,
the police have also recovered 10 Gelatin sticks and detonators
from these accused, which are incriminating and it gone without
E any explanation. Under Ex.P62, one passport was also recovered
as per Ex.P63; fromA-3 some books have also recovered under
Ex.P68, which we have already discussed.
123. From A-4, under Ex.P112, the Police Officer has recovered
one reliance note book, paper with phone numbers, visiting card
F and a leather purse, which are marked as Exs.P113 to P.116 under
MO.56. According to the Investigating Officer, these things are
also not incriminating materials and no connectivity has been
established. However, under Ex.P169, on the basis of voluntary
statement (Ex.P.275), the Investigating Officer has recovered one
G Tin Bomb from this accused and also recovered under Ex.P.152
some books which are incriminating and also recovered from A-
4 and A-6 a book regarding ‘Jihad’ at Ex.P167, which we have
already discussed.
124. From A-5, as we have already discussed in detail, on the
H basis of his voluntary statement (Ex.274), the police have
MOHAMMAD IRFAN v. STATE OF KARNATAKA 869
[UDAY UMESH LALIT, J.]

recovered one note book (Ex.P76) and other books, and also a A
small diary (Ex.116), in respect of which no connectivity is
established. Therefore, from A-5 no incriminating materials have
been recovered except one note book (Ex.P276) under mahazar
(Ex.P75).
125. From A-6, a small diary was recovered and under Ex.160 B
(mahazar) some incriminating materials have been recovered i.e.
1 small tin bomb, 1 tiffin box bomb with wires, 2 electrical
detonators, 2 wires and country made revolvers marked at MO.23
and live bullets (MOs.24 & 25) are also recovered under mahazars,
which are marked at Ex.P56 to P166. Except the bombs, the
connectivity of Electrical Detonators, the other materials recovered C
with the crime are not established.
126. From A-7, the police have recovered under Ex.P.137 one
purse (MOs.21); Nokia mobile (MOs.22), telephone number slips,
visiting cards and STD booth bills marked as Exs.P.138 to P.142
and also recovered one passport (Ex.P.146), one book in Urdu D
with picture of crossed guns (Ex.P.147) and a small diary
(Ex.P.148) and 07 paper pieces marked at Exs.P.149 to P.151).
*** *** ***
130. On careful perusal of the statement of these accused persons E
recorded under Section 313 of Cr.PC., there is no sufficient
acceptable explanation by them as to why they were possessing
these contraband articles, which are sufficient to cause damage
to life and property of the public at large, if they explode. It is also
not explained as to the reason for them to keep all these articles.
According to the learned counsel for the accused, the accused F
persons are law-abiding citizens. If they are really law-abiding
citizens, why they have to keep such dangerous articles with them.
When there is no reason or explanation by the accused persons
for possessing the said incriminating articles with them, then it
can be safely inferred that, the said articles were kept by them G
for the purpose of doing some illegal acts in furtherance of their
conspiracy, as detailed supra.
131. Recovery of the above said articles have to be tested with
other materials on record. As we have already discussed, these
articles have some connection with the conspiracy that has been
H
870 SUPREME COURT REPORTS [2022] 10 S.C.R.

A occurred between some of these accused persons. Of course,
there is no material to show that A-3 and A-7 in any manner
participated in the conspiracy, as we have already discussed. At
the cost of repetition, we may say that in Ex.P92 dated 10.12.2003,
19.08.2005 and 18.12.2005, the accused persons, who have
participated in these meetings, have taken oath to take revenge
B
for the demolition of Babri Masjid and killing of Mohhammadans
at Gujarath. They have decided to join their hands for ‘Jihad’ by
taking training. That means, they have to possess bombs, guns
and other things and use them whenever instructed by their
superiors. Particularly in the meeting held on 18.12.2005, the
C accused persons had also discussed with regard to declaration of
‘Jihad’ against the persons, who have no belief in Islam and they
have also decided to possess bombs, rifles, AK-47 etc.”
G) The material on record was then looked into to consider as to
what offences were established. The relevant discussion was:-
D
“141. Applying the materials available on record sofar as these
offences are concerned, admittedly the Investigating Officer in
his evidence has admitted during the course of the cross-
examination that, except the voluntary statement of accused
persons stating that they are working for an Association which is
E declared as ULF i.e., LeT and that A-1 is working as leader for
South India pertaining to the said ULF Association. He also
admitted that, there is no other material before the court and he
has not collected any materials to show that any of the accused
persons are either members or taken any part in meeting of such
Association or contributed or received any contribution for the
F
purpose of such association or assisted the said association in any
manner. He has also stated that he has received some factual
information from his informants that the accused persons are
connected to LeT, which is an unlawful banned Association.
Admittedly, the voluntary statement of the accused persons cannot
G be relied upon by the court which incriminates the accused, as the
same is hit by Section 25 of the Indian Evidence Act. The
prosecution has to prove the said allegations independently. None
of the witnesses have deposed anything about any of the accused
persons taking part or committing, advocating, abetting and
instigating the commission of any unlawful activities as per the
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 871
[UDAY UMESH LALIT, J.]

provisions under Sections 10 & 13 of the Unlawful Activities A
(Prevention) Act. Though we came to the conclusion that sanction
accorded by the competent authority to prosecute the accused
persons for the offences under Sections 10 & 13 of the said Act,
but the evidence placed before the court does not establish any of
the said offences either under Sections 10 & 13 of the Act.
B
Therefore, we do not find any strong reasons to interfere with the
judgment of the trial court in sofar as acquitting the accused for
the offences under Sections - 10, 11 & 13 of the said Act. Hence,
there is no need for this Court to discuss the decisions cited by
either of the parties to the proceedings.
C
*** *** ***
145. On perusal of the evidence adduced before the court, the
prosecution has relied upon the evidence of PWs. 1 to 8 and 13 so
far as to prove the said provisions that these accused persons
particularly A-2 and A-6 in furtherance of their conspiracy, wanted
D
to induct PWs. 1 to 8 & 3 to join their hands for the purpose of
destroying peace and create unlawful disharmony in the society
etc. But, as we have discussed, the above witnesses have turned
totally hostile to the case of the prosecution and they never stated
anything about the conspiracy hatched between the accused, nor
they have stated that A-2 and A-6 have provoked them in such a E
manner which amounts to any prejudicial to national integrity or
attempt to promoting enmity between different caste, creed,
religions, races, place of birth, residence, etc. In this manner also
we have absolutely no difference of opinion to that of the opinion
of the learned Sessions Judge. We affirm the judgment by saying F
that the prosecution has also failed to prove the ingredients of
Sections- 153-A and 153-B of IPC in order to establish the link
between the accused and the offices alleged. Hence, acquittal of
the accused persons for the said offences under Sections- 153-A
and 153-B of IPC also does not deserve to be interfered with by
this court. G

*** *** ***
148. As could be seen from the above said provisions, under Section
121-A, conspiracy to commit offence punishable under Section
121 itself is punishable even for any activity in pursuance or in H
872 SUPREME COURT REPORTS [2022] 10 S.C.R.

A consonance with such conspiracy. Therefore, Section 121 need
not be fully established that the accused persons have waged war
against the Government or attempted to wage war against the
Government or attempted to wage war or abetted to wage war.
Even mere conspiracy to wage war or attempt wage war or abet
to wage war, is punishable under Section 121 and if the conspiracy
B
is to overawe the Government, by means of criminal force or the
showing of criminal force shall be punished with imprisonment
for life or with imprisonment which may extend to 10 years and
fine.
149. Section 120-B says that, when two or more persons agree
C
to do any illegal act or an act which is not by illegal means, such
an agreement is designated a criminal conspiracy and if any such
conspiracy to commit an offence is punishable with death or
imprisonment for life. Then such persons are liable to punishment
for a term of two years or more.
D
150. So, in order to attract Section 120-B, it is clear from the
above said provision that, the prosecution has to establish that the
accused persons are more than two in number and they have
entered into an agreement and that agreement is designed for the
purpose of commission of an illegal act or doing an act by illegal
E means and such illegal acts amounts to commission of offences
under the provisions of IPC and other laws. So far as Section 121
of IPC is concerned, the prosecution has to prove that the accused
persons have actually waged war against the Government or
attempted to wage war against the Government.
F 151. From the above provisions, it is abundantly clear that if the
conspiracy relied upon by the prosecution is with reference to
Section 121 of IPC, then the said conspiracy is exclusively and
specifically punishable under Section 121-A. Under such
circumstances Section 120-A and 120-B of IPC cannot be invoked.
G If it is done, the same amounts to imposing double punishment.
Hence, we are of the opinion that the conviction and sentence
under Section 120B is not sustainable.
152. It is abundantly clear that, if the conspiracy relied upon by
the prosecution is with reference to Section 121 of IPC, the said
H conspiracy is exclusively and specifically punishable under Section
MOHAMMAD IRFAN v. STATE OF KARNATAKA 873
[UDAY UMESH LALIT, J.]

121 of IPC, the said conspiracy is exclusively and specifically A
punishable under Section 121-A, but under such circumstances,
Sections 120-A and 120-B cannot be invoked.”
H) After considering the decisions of this Court in State (NCT of
Delhi) v. Navjot Sandhu @ Afsan Guru11 and Nazir Khan & Ors.10,
the High Court concluded that the ingredients of Section 121 of the IPC B
were absent in the instant case but the provisions of Section 121-A of
the IPC were attracted. It was observed:
“159. The accused persons have also discussed with regard to
the funding for ‘Jihad’ by means of an association and also they
have taken a decision to prepare themselves with the weapons in C
order to fight against such activities. These activities of the accused
clearly disclose that, they wanted to take action against the
Government etc.
160. As we have also observed that some of the books which
were seized from the custody of the accused persons, it also D
discloses that those books must have been persuaded the accused
persons to pass such resolution under Ex.P92. Those books
contained anti-national recitals which says that India will be
destroyed and Mohammadans should take guns and fight against
India, etc. So the court has to couple the entire material on record
to draw an inference as to what exactly the intention of the accused E
persons in holding such meetings. Though we are of the opinion
that no damage has been done, no activities have been taken place
in consonance with their conspiracy and there is no heavy
magnitude of any damage or loss to the country, nevertheless
their prime intention is to cause heavy damage to the people and F
the country. We are able to understand this intention and mind set
of the accused coupled with they joining together and conspire to
execute such an intention. In our opinion, their intention and mindset
are sufficient to attract the provision under Section 121. A though
not under section 121 of IPC.
G
161. We would also like to mention here that some of the accused
persons noted above have gone further and have collected
Electrical Detonators, Gelatin sticks and bombs. This Conduct
shows that they have decided to implement the decision taken by
11
(2005) 11 SCC 600. H
874 SUPREME COURT REPORTS [2022] 10 S.C.R.

A them, slowly and gradually and for that purpose only started
collecting the materials of such magnitude sufficient to destroy
India. But they were caught at the initial stage of conspiracy while
planning as to how to execute their decision. It is not necessary
for the courts to wait for till such time, allowing the accused
persons to collect so much of materials and only after causing
B
damage to the country, countrymen and the property of the country
men, and then take action. In our sincere and honest opinion, such
activities even at the stage of conspiracy itself should be nipped
at the bud. Otherwise, it may end up in causing irreversible
damage. Therefore, we are of the considered opinion that the
C trial court has not committed any mistake in convicting the accused
persons and sentencing them for life. However, the trial Court
instead of sentencing the accused under section 121-A for life,
inadvertently by mistaken notion invoked Section 120-B of I.P.C.,
which needs to be corrected.”
D I) Finally, the operative order passed by the High Court was:-
“The appeal filed by A1, A2, and A4 to A6 in Crl.A.No 220/
2012 and the Appeal filed by the State in Crl.A.No 530/2012 and
the Appeal filed by Accused No.3, in Crl.A.No.1123/2013 are
hereby partly allowed. The Appeal filed by the State in
E Crl.A.No.531/2012 is hereby dismissed. The Judgment of
conviction and sentence passed by the trial Court is modified.
Consequently,
(i) A-1, A-2 & A-4 to A-6 are hereby convicted for the offence
under Section 121-A of IPC. Sentence passed by the trial Court
F is enhanced, the Accused shall undergo rigorous imprisonment
for life for the offence under Section 121-A of IPC and to pay
fine of Rs.5,000/- and in default, to undergo S.I. for a period of
one year. (Impugned judgment of conviction is confirmed to
that extent and sentence is enhanced). However ,A1 to A6
are acquitted of the charge under Section 121 and 120B of
G IPC. Accused No 3 is acquitted also of the charges under
section 121 A of I.P.C. (to that extent conviction and sentence
is set aside).
(ii) A2, A3, A4 and A6 are hereby sentenced to undergo S.I.
for 7 years and shall pay fine of Rs.5,000/-and in default to
H undergo S.I. for 1 year for the offences under section 5 of the
MOHAMMAD IRFAN v. STATE OF KARNATAKA 875
[UDAY UMESH LALIT, J.]

Explosive Substances Act 1908. (to that extent impugned A
judgment is confirmed). However, Accused No.1 and 5 are
acquitted of the Charges under section 6 of the said Act. (to
that extent the impugned conviction and sentence is set aside).
(iii) Accused No.6 is convicted for the offence under sections
25 and 26 of the Arms Act and sentenced to undergo S.I. for a B
period of 5 years and shall pay a fine of Rs.5000/- in default to
undergo S.I. for one year for the offence under section 25 of
the Arms Act. He is also sentenced to undergo S.I. for 3 years
for the offence under section 26 of the Act. (to that extent,
impugned conviction and sentence is confirmed). However A2,
3 and 4 are acquitted for the offence under section 25 and 26 C
of the Arms Act. (to that extent judgment of conviction and
sentence is set - aside).
(iv) The judgment of Acquittal passed by the Trial Court so far
it relates to Accused No 7 is not disturbed (confirmed).
D
v) Sentences of imprisonment shall run concurrently. Set off
for the period of imprisonment already undergone by the
Accused persons shall be given under section 428 of Criminal
Procedure Code.
vi) As we found that A3 has already undergone the period of E
imprisonment imposed upon him, he shall be released forthwith,
if he is not required in any other case.
(vii) Registry is hereby directed to communicate the operative
portion of the judgment to the concerned Jail authorities for
appropriate action.” F
24. Being aggrieved by the decision of the High Court, instant
appeals by special leave have been preferred by Accused Nos. 5, 6, 1
and 4. As stated hereinabove, neither any appeal has been filed by A-2
and A-3 challenging their conviction nor any challenge is raised by the
State against dismissal of its appeals.
G
The scope of these appeals is thus confined to the challenge
raised by Accused Nos. 5, 6, 1 and 4
25. Special Leave Petitions preferred by A-5, A-6 and A-1, from
which their appeals arise, came up on 21.10.2016, when notice was
issued by this Court restricted to the question of sentence to be imposed H
876 SUPREME COURT REPORTS [2022] 10 S.C.R.

A on them. An affidavit sworn by A-1 on 28.11.2016, was thereafter filed
submitting inter alia that he was 21 years of age when the offence was
committed and if let out of jail on sentence undergone, he would support
his family by earning an honest living, without causing any harm to fellow
countrymen. Similar affidavits were filed by the other Accused. Later,
the Special Leave Petitions of all the four accused came up on 28.04.2017,
B
when the Court called for a report from the National Investigation Agency.
Thereafter, by order dated 31.1.2018, Special Leave to Appeal was
granted by this Court, leading to registration of these appeals.
26. We heard Mr. Siddhartha Dave, Ms. Nitya Ramakrishnan
and Mr. Ratnakar Dash, learned Senior Advocates for A-6, A-1 and A-
C 4 respectively, Mr. Farukh Rashid, learned Advocate for A-5 and Mr.
Nikhil Goel, learned Additional Advocate General for State of Karnataka.
The role of the National Investigation Agency in these appeals
was only pursuant to the order dated 28.4.2017. Since the submissions
were advanced on merits, there was no occasion for hearing the National
D Investigation Agency.
27. At the outset, the preliminary submission advanced on behalf
of the State must be dealt with. It was submitted that the order dated
21.10.2016 having restricted the scope of the matters to the issue of
sentence to be imposed on the accused, the submissions regarding
E conviction need not be entertained. Relying on the affidavits filed by the
Accused which led to the passing of the order dated 28.04.2017, it was
submitted that even the Accused also understood the scope of the matter
being restricted to the quantum of sentence. In response, reliance was
placed by the learned counsel for the Accused on the decision of this
Court reported in Yomeshbhai Pranshankar Bhatt v. State of Gujarat12
F to submit that it would be entirely up to this Court to consider the matter
on merits and not restrict the submissions in any manner. Paragraphs 4
and 8 of said decision are:-
“4. The learned counsel for the appellant urged that though at the
time of issuing notice, this Court limited its rights to raise points
G only within the confines of Section 304 of the Penal Code, the
Court is not bound at the time of final hearing with that direction
given while issuing notice and the appellant is entitled to urge all
the questions including his right to urge that he should have been
acquitted in the facts and circumstances of the case.
H 12
(2011) 6 SCC 312
MOHAMMAD IRFAN v. STATE OF KARNATAKA 877
[UDAY UMESH LALIT, J.]

8. The provisions of Article 142 of the Constitution have been A
construed by this Court in several judgments. However, one thing
is clear that under Article 142 of the Constitution, this Court in
exercise of its jurisdiction may pass such decrees and may make
such orders as is necessary for doing complete justice in any case
or matters pending before it. It is, therefore, clear that the Court
B
while hearing the matter finally and considering the justice of the
case may pass such orders which the justice of the case demands
and in doing so, no fetter is imposed on the Court’s jurisdiction
except of course any express provision of the law to the contrary,
and normally this Court cannot ignore the same while exercising
its power under Article 142. An order which was passed by the C
Court at the time of admitting a petition does not have the status
of an express provision of law. Any observation which is made by
the Court at the time of entertaining a petition by way of issuing
notice are tentative observations. Those observations or orders
cannot limit this Court’s jurisdiction under Article 142.”
D
Considering the facts and circumstances on record including the
fact that while granting Special Leave to Appeal, the matter was not
restricted with regard to the question of sentence, we proceed to consider
the submissions advanced on behalf of the appellants on merits rather
than restrict the scope of the matter to the issue of sentence.
E
28. It was submitted on behalf of the appellants:-
a) The Prosecution witnesses namely PWs 1 to 8 having failed
to support the case of Prosecution, there was no substantial
evidence on the basis of which it could be said that the
allegations against the accused collectively or individually F
were substantiated. Further, the confessions of all the
concerned Accused were also not accepted by the Courts
below.
b) The basic charges namely one under Sections 121, 153A
and 153B of the IPC having not been established, the only G
subsisting charge was one under Section 121A of the IPC,
which was also devoid of any substance.
c) The recovery of explosive substances, Diary Exh.P-92 and
other material, by themselves were insufficient to sustain
the charge under Section 121A of the IPC.
H
878 SUPREME COURT REPORTS [2022] 10 S.C.R.

A d) Reading the provisions of Section 120B(1) and Section 115
of the IPC, where the basic offence under Section 121 was
not committed, the sentence could not be greater than seven
years.
e) In any event of the matter, the trial court having awarded
B substantive sentence of imprisonment for seven years under
Section 121A of the IPC, there was no reason for enhancing
the quantum of punishment to life imprisonment. The facts
on record did not justify such exercise;
f) The only involvement of A-1 was the fact that he had
C attended the first meeting of the Trust, which would at best
get substantiated through the evidence of handwriting expert.
However, viewed in light of the admission given by the
Investigating Officer that A-1 did not understand Kannada
language, signature below the text in Kannada would not
make A-1 liable in any manner in the absence of any other
D substantial evidence or material.
g) None of the witnesses had identified A-1 in court and neither
the text of Exh - P92(c) nor the case of the Prosecution
that A-1 signed the same, was put to him in his examination
under Section 313 of the Code13.
E h) Apart from the solitary material of the first meeting of the
Trust, there was nothing against A-1, not even a suggestion
of any other meeting or contacts with the rest of the
Accused.
i) In any case, the first meeting was said to have been held in
F the year 2003, whereas the recoveries in the instant case
are of the year 2006.
j) In terms of Section 196 of the Code, sanction to prosecute
the Accused for having committed offence punishable inter
alia under Chapter VI of the IPC was mandatory and the
G sanction placed on record did not satisfy the requirements.
29. It was submitted on behalf of the State Government:
a) The material on record, especially huge quantities of
explosive substances as well as the literature and books
13
H Code of Criminal Procedure, 1973
MOHAMMAD IRFAN v. STATE OF KARNATAKA 879
[UDAY UMESH LALIT, J.]

recovered at the instance of the concerned accused put A
the matter beyond any doubt.
b) The Diary Exh.P-92 very clearly established the intent of
the Accused who had assembled, who held meetings and
had appended their signatures below the concerned
resolutions. B
c) The signatures were identified by handwriting expert, who,
duly supported his conclusions with reasons.
d) The movements of A-1, who was not a local person in the
town around the time when the meetings had taken place,
further lent corroboration and support to the evidence C
concerning his involvement.
e) Considering the large quantity of recovered explosive
substances and the other material including books, literature
and Diary Exh.P-92, case was certainly made out for
enhancement of punishment. D
f) The sanction accorded under Section 196 of the Code was
rightly held to be valid and there was no infirmity on any
count.
30. At the outset, the submissions regarding the correctness and
E
validity of the sanction accorded under Section 196 of the Code must be
considered. The facts on record as set out in Paragraphs 34 and 35 of
the decision of the High Court disclose, that the matter was considered
by the Office of the Home Minister and the Chief Minister and consent
was accorded to the proposal put up in usual course of business,
whereafter, the communication was addressed by the Under Secretary. F
In the face of these facts, the submission that the sanction was not
accorded by the competent authorities must be rejected. Consistent with
the findings rendered by the Courts below, we hold that the sanction in
terms of Section 196 of the Code was valid and proper.
The matter regarding sanction accorded in respect of offences G
punishable under the Explosives Substances Act and the Arms Act was
also dealt with by the High Court in extenso and the conclusion arrived
at in Paragraph 37 of its decision does not call for any interference.
31. Turning to the merits of the matter, the evidence on record
can be classified mainly in following segments: H
880 SUPREME COURT REPORTS [2022] 10 S.C.R.

A a) Oral testimony of Prosecution witness Nos. 1 to 8 and 13.
b) Evidence regarding recoveries
i) It is true that Prosecution witness Nos. 1 to 8 and 13 turned
hostile and did not support the case of Prosecution fully. However,
it emerges from their testimony that some of them were trustees
B of the Trust, minutes book of which was produced on record as
Exh.P-92. The witnesses accepted the fact that the meetings of
the Trust had taken place and that some of the Accused did attend
the meetings. PW4-Firoz gave details about the presence and
participation in the meetings by various Accused including A-1
and deposed to the fact that said witness had dropped A-1 at the
C
railway station on his bike.
It is thus clear that though these witnesses did not support
the Prosecution case fully, some of the features of the Prosecution
case were substantiated through the testimony of these witnesses.
The law on the point is clear that even if a witness is declared
D hostile, the evidence of such witness cannot be rejected in toto
but the correct approach is to accept it to the extent his version is
found to be dependable on a careful scrutiny thereof14.
ii) The recoveries of books and literature were completely
supported by the concerned Panch witnesses and the
E Panchanamas on record. The books and literature did carry
inflammatory content and messages. The translations of the original
versions in Urdu were placed on record by the Prosecution. The
voluntary statements which led to such recoveries and the
recoveries themselves were also proved by the Prosecution.
F One important piece of material recovered from A-2 was
Diary Exh.P-92. The tenor and text of the contents were captured
quite correctly by the trial court in its judgment as referred to
hereinabove. The signatures of the concerned accused were
proved beyond any doubt through the evidence of PW67,
handwriting expert.
G
It thus stood established that the Accused had assembled
together with the intent as disclosed from the minutes of the
meetings of the Trust.

14
C. Muniappan & Ors. Vs. State of Tamil Nadu – (2010) 9 SCC 567;
H Radha Mohan Singh & Ors. Vs. State of U.P. – (2006) 2 SCC 450.
MOHAMMAD IRFAN v. STATE OF KARNATAKA 881
[UDAY UMESH LALIT, J.]

The explosive substances, details of which are given A
hereinabove were recovered from A-2, A-3, A-4 and A-6.
Voluntary statements of said Accused and consequential recoveries
effected through Panchas were also duly proved by the
Prosecution.
32. Before we turn to the question whether the deduction or B
conclusion, on the basis of the material on record, as stated above, was
rightly arrived at by the Courts below, some of the observations made by
this Court in Lal Singh v. State of Gujarat and Another15 in the context
of matters involving terrorist activities where arms and ammunitions were
recoveredat the instance of or on disclosure by the accused, must be
noted. It was observed by this Court: C

“84. The learned Senior Counsel Mr Sushil Kumar submitted that
prosecution has not proved beyond reasonable doubt all the links
relied upon by it. In our view, to say that prosecution has to prove
the case with a hundred per cent certainty is a myth. Since last
many years the nation is facing great stress and strain because of D
misguided militants and cooperation to the militancy, which has
affected the social security, peace and stability. It is common
knowledge that such terrorist activities are carried out with utmost
secrecy. Many facts pertaining to such activities remain in personal
knowledge of the person concerned. Hence, in case of conspiracy E
and particularly such activities, better evidence than acts and
statements including that of co-conspirators in pursuance of the
conspiracy is hardly available. In such cases, when there is
confessional statement it is not necessary for the prosecution to
establish each and every link as confessional statement gets
corroboration from the link which is proved by the prosecution. In F
any case, the law requires establishment of such a degree of
probability that a prudent man may on its basis, believe in the existence
of the facts in issue. For assessing evidence in such cases, this
Court in Collector of Customs v. D. Bhoormall [(1974) 2 SCC
544 : 1974 SCC (Cri) 784] dealing with smuggling activities and G
the penalty proceedings under Section 167 of the Sea Customs
Act, 1878 observed that many facts relating to illicit business remain
in the special or peculiar knowledge of the person concerned in it
and held thus: (SCC pp. 553-55, paras 30-32 and 37)
15
(2001) 3 SCC 221 H
882 SUPREME COURT REPORTS [2022] 10 S.C.R.

A “30. … that the prosecution or the Department is not required
to prove its case with mathematical precision to a demonstrable
degree; for, in all human affairs absolute certainty is a myth,
and—as Prof. Brett felicitously puts it — ‘all exactness is a
fake’. El Dorado of absolute proof being unattainable, the law
accepts for it probability as a working substitute in this work-
B
a-day world. The law does not require the prosecution to prove
the impossible. All that it requires is the establishment of such
a degree of probability that a prudent man may, on its basis,
believe in the existence of the fact in issue. Thus, legal proof is
not necessarily perfect proof; often it is nothing more than a
C prudent man’s estimate as to the probabilities of the case.
31. The other cardinal principle having an important bearing
on the incidence of burden of proof is that sufficiency and
weight of the evidence is to be considered — to use the words
of Lord Mansfied in Blatch v. Archar [(1774) 1 Cowp 63 : 98
D ER 969] (Cowp at p. 65) ‘according to the proof which it was
in the power of one side to prove, and in the power of the other
to have contradicted’.
* * *
32. Smuggling is clandestine conveying of goods to avoid legal
E duties. Secrecy and stealth being its covering guards, it is
impossible for the Preventive Department to unravel every
link of the process. Many facts relating to this illicit business
remain in the special or peculiar knowledge of the persons
concerned in it. However, this does not mean that the special
or peculiar knowledge of the person proceeded against will
F relieve the prosecution or the Department altogether of the
burden of producing some evidence in respect of that fact in
issue. It will only alleviate that burden, to discharge which,
very slight evidence may suffice.
* * *
G 37. ‘For weighing evidence and drawing inferences from it’,
said Birch, J. in R. v. Madhub Chander [(1873) 21 WR Cr
13] (WR Cr at p. 19)‘there can be no canon. Each case presents
its own peculiarities and in each common sense and shrewdness
must be brought to bear upon the facts elicited’.”
H *** *** ***
MOHAMMAD IRFAN v. STATE OF KARNATAKA 883
[UDAY UMESH LALIT, J.]

87. In that case, the Court also referred to the following A
observations in Miller v. Minister of Pensions [(1947) 2 All ER
372 : 177 LT 536] by Lord Denning, J.
“That degree is well settled. It need not reach certainty, but it
must carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond the shadow of B
a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice.
If the evidence is so strong against a man as to leave only a
remote possibility in his favour which can be dismissed with
the sentence ‘of course it is possible, but not in the least
probable,’ the case is proved beyond reasonable doubt’.” C

88. It is true that under our existing jurisprudence in criminal matter,
we have to proceed with presumption of innocence, but at the
same time, that presumption is to be judged on the basis of
conceptions of a reasonable prudent man. Smelling doubts for the
sake of giving benefit of doubt is not the law of the land. In such D
type of terrorist activities if arms and ammunitions are recovered
at the instance of or on disclosure by the accused, it can be stated
that presumption of innocence would not thereafter exist and it
would be for the accused to explain its possession or discovery or
recovery and would depend upon facts of each case which are to E
be appreciated on the scales of common sense of a prudent man
possessing capacity to “separate the chaff from grain”. In such
cases, as stated by Lord Denning, J., law would fail to protect the
community if it admitted fanciful possibilities to deflect the course
of justice. If it is established on record that A-20 was found in the
company of A-1 and A-2 at Aligarh and that at Bombay also he F
had introduced himself as a friend of A-1 and A-3 to PW 87, who
is his childhood friend, then it would be reasonable to infer that he
was co-conspirator and assisting A-1 and A-2, as stated in his
confessional statement.”
(Emphasis supplied) G
16
33. In Ajay Aggarwal v. Union of India and Others , the role
played by various accused in successive stages of conspiracy and to
what extent liability for the acts committed by other members of the

16
1993 (3) SCC 609 H
884 SUPREME COURT REPORTS [2022] 10 S.C.R.

A conspiracy could be fastenedon the co-conspirators was considered by
this Court. The following observations are noteworthy:
“24. Thus, an agreement between two or more persons to do an
illegal act or legal acts by illegal means is criminal conspiracy. If
the agreement is not an agreement to commit an offence, it does
B not amount to conspiracy unless it is followed up by an overt act
done by one or more persons in furtherance of the agreement.
The offence is complete as soon as there is meeting of minds and
unity of purpose between the conspirators to do that illegal act or
legal act by illegal means. Conspiracy itself is a substantive offence
and is distinct from the offence to commit which the conspiracy is
C entered into. It is undoubted that the general conspiracy is distinct
from number of separate offences committed while executing
the offence of conspiracy. Each act constitutes separate offence
punishable, independent of the conspiracy. The law had developed
several or different models or technics to broach the scope of
D conspiracy. One such model is that of a chain, where each party
performs even without knowledge of the other a role that aids
succeeding parties in accomplishing the criminal objectives of the
conspiracy. An illustration of a single conspiracy, its parts bound
together as links in a chain, is the process of procuring and
distributing narcotics or an illegal foreign drug for sale in different
E parts of the globe. In such a case, smugglers, middlemen and
retailers are privies to a single conspiracy to smuggle and distribute
narcotics. The smugglers knew that the middlemen must sell to
retailers; and the retailers knew that the middlemen must buy of
importers of someone or another. Thus the conspirators at one
F end of the chain knew that the unlawful business would not, and
could not, stop with their buyers; and those at the other end knew
that it had not begun with their settlers. The accused embarked
upon a venture in all parts of which each was a participant and an
abettor in the sense that, the success of the part with which he
was immediately concerned, was dependent upon the success of
G the whole. It should also be considered as a spoke in the hub.
There is a rim to bind all the spokes together in a single conspiracy.
It is not material that a rim is found only when there is proof that
each spoke was aware of one another’s existence but that all
promoted in furtherance of some single illegal objective. The
H traditional concept of single agreement can also accommodate
MOHAMMAD IRFAN v. STATE OF KARNATAKA 885
[UDAY UMESH LALIT, J.]

the situation where a well-defined group conspires to commit A
multiple crimes; so long as all these crimes are the objects of the
same agreement or continuous conspiratorial relationship, and the
conspiracy continues to subsist though it was entered in the first
instance. Take for instance that three persons hatched a conspiracy
in country A to kill D in country B with explosive substance. As
far as conspiracy is concerned, it is complete in country A. One B
of them pursuant thereto carried the explosive substance and
hands it over to third one in the country B who implants at a place
where D frequents and got exploded with remote control. D may
be killed or escape or may be diffused. The conspiracy continues
till it is executed in country B or frustrated. Therefore, it is a C
continuing act and all are liable for conspiracy in country B though
first two are liable to murder with aid of Section 120-B and the
last one is liable under Section 302 or 307 IPC, as the case may
be. Conspiracy may be considered to be a march under a banner
and a person may join or drop out in the march without the necessity
of the change in the text on the banner. In the comity of D
International Law, in these days, committing offences on
international scale is a common feature. The offence of conspiracy
would be a useful weapon and there would exist no conflict in
municipal laws and the doctrine of autrefois convict or acquit
would extend to such offences. The comity of nations are duty- E
bound to apprehend the conspirators as soon as they set their feet
on the country’s territorial limits and nip the offence in the bud.
25. A conspiracy thus, is a continuing offence and continues to
subsist and committed wherever one of the conspirators does an
act or series of acts. So long as its performance continues, it is a
continuing offence till it is executed or rescinded or frustrated by F
choice or necessity. A crime is complete as soon as the agreement
is made, but it is not a thing of the moment. It does not end with
the making of the agreement. It will continue so long as there are
two or more parties to it intending to carry into effect the design.
Its continuance is a threat to the society against which it was G
aimed at and would be dealt with as soon as that jurisdiction can
properly claim the power to do so. The conspiracy designed or
agreed abroad will have the same effect as in India, when part of
the acts, pursuant to the agreement are agreed to be finalised or
done, attempted or even frustrated and vice versa.”
(Emphasis supplied) H
886 SUPREME COURT REPORTS [2022] 10 S.C.R.

A 34. If the facts on record are considered, it emerges:-
a) On 10.12.2003, when a meeting was organised at the house
of Firoz at Chintamani, it was attended by A-1, A-2, A-4
and A-6 along with other members including some of the
Prosecution witnesses.
B b) The minutes of the meeting, as set out in paragraph 17 of
the decision of the Trial Court, disclosed the intent and the
objective with which the materials, such as guns and bombs
were to be procured or collected.
c) The signatures appended below the minutes were proved
C by PW-67, Syed Asgar Imam, Hand Writing Expert.
d) The presence of A-1 in Chintamani on the day in question
was completely established. His presence assumes
significance as he was not a local person.
e) The presence of A-1 on the day in question was adverted
D to by some of the Prosecution witnesses. It is true that
apart from these pieces of evidence, nothing substantial
could be pointed against A-1 but his involvement in the
scheme as one of the driving forces for the entire design,
was quite evident.
E f) The intent and objective disclosed from the minutes of the
meeting was carried forward in the subsequent meetings.
g) The recoveries made from and at the instance of the other
accused show that the very intent and object as discussed
in the first meeting was being carried forward by these
F accused with the acquisition and possession of the arms
and ammunition.
h) The kind of material recovered from them by itself shows
the potential danger. Nothing was brought on record to show
the reason or the purpose for acquisition and possession of
G such potentially dangerous material.
These facts not only show that the basic elements of the conspiracy
stood well established but also proved the involvement of A-1. Going by
the law laid down by this Court, A-1 cannot escape the liability only on
the ground that no arms and ammunition or any inflammatory material
H or literature were actually recovered from him.
MOHAMMAD IRFAN v. STATE OF KARNATAKA 887
[UDAY UMESH LALIT, J.]

35. We must, at this stage, deal with three submissions advanced A
on behalf of A-1.
A) The minutes of the first meeting dated 10.12.2003 were written
in Kannada language, at the end of which the signatures were
appended by all the concerned including A-1. As admitted by the
Investigating Officer, A-1 did not understand Kannada language. B
A serious objection was, therefore, raised about reliability of said
document to fasten the liability on A-1.
As discussed above, the presence of A-1 in Chintamani
Town on the relevant day stood well established. The fact that all
the concerned Accused got together on that day in the house of C
PW-4 also stood established. The tenor of the discussion in the
meeting and the fact that it was not found appropriate by some of
the witnesses also found mention in the testimony of the witnesses.
The handwriting expert found the signature to be that of A-1. In
the premises, a mere submission that the signatures of the Accused
were obtained subsequently, without any foundation, cannot be D
entertained. The signatures were definitely made in the
circumstances suggested by the Prosecution.
The submission is, therefore, rejected.
B) The next submission was with regard to the gap between the E
first meeting and the recovery of arms and explosives from some
of the Accused. It was highlighted that there was about three
years’ gap between these two circumstances and it was stressed
that there was nothing on record that during this interregnum, A-
1 was in touch with any of the Accused or had any role in procuring
the arms and explosives, which were eventually recovered pursuant F
to disclosures made by the concerned Accused.
The conspiracy, the basic features of which were structured
in the first meeting of 2003, was a continuing one; which is evident
from the minutes of the subsequent meetings and translation of
the intent into procurement of arms and explosives. It can neither G
be stated that the thread which was running through subsequent
events and circumstances was broken or that the link between
the first meeting and the subsequent stages was in any way
snapped.
The submission, therefore, calls for rejection. H
888 SUPREME COURT REPORTS [2022] 10 S.C.R.

A C) It was further submitted that the case of the Prosecution that
A-1 had signed the minutes of the first meeting was not put to
said Accused during his examination under Section 313 of the
Code.
The record shows that questions about the report of PW-
B 67, the handwriting expert, at Exh.P-239 (page 194 of the
convenience compilation) and about the meeting at Chintamani
and that A-1 had gone to Chintamani (Page 197 of the convenience
compilation) were put to the Accused in his examination under
Section 313 of the Code. These questions definitely invited the
attention of A-1 to the circumstances against him. The substantive
C evidence about the opinion of the handwriting expert which had
found the signature of A-1 below the minutes of the first meeting
and the circumstances about the meeting at Chintamani and that
A-1 had gone to Chintamani were thus put to the Accused. The
instant submission, therefore, does not merit acceptance.
D 36. The next question to be considered in light of the facts
established on record is about the nature of offence committed by the
Accused.
Relying on the decision of the Division Bench of the High Court
of Patna in Mir Hasan Khan vs. State17, which was noted by a Bench
E of two Judges of this Court in Navjot Sandhu11, it was submitted on
behalf of the Accused that the material on record did not fulfil the
requirement of what would constitute “waging of war” and consequently
there could be no conviction uner Section 121-A of the IPC.
The relevant portion from the decision in Navjot Sandhu11is:-
F
269. The decision of a Division Bench of the Patna High Court in
Mir Hasan Khan v. State20 is illustrative of what acts do not
constitute waging of war. That was a case in which there was a
mutiny among certain sections of the police forces on account of
the indignation aroused by the punishment given to one of their
G colleagues. The conviction under Section 121 IPC was mainly

17 *
AIR 1951 Patna 60 = 1951 Cr.L.J. 462.
* The decision in AIR 1951 Patna 60 = 1951 Cr.L.J.462 is reported as Mir Hasan
Khan v. State. The same decision is reported in 1951 Cr.LJ 462 as Ramanand v. State.
In some of the subsequent judgments it is either referred to as Mir Hasan Khan v. State
H or as Ramanand v. State.
MOHAMMAD IRFAN v. STATE OF KARNATAKA 889
[UDAY UMESH LALIT, J.]

based on the fact that the accused were among those who took A
possession of the armoury and also took part in the resistance
which was put up to the troops. The conviction was set aside and
the following pertinent observations were made by Shearer, J.:
(AIR p. 63)
“The expression ‘waging war’ means and can, I think, only B
mean ‘waging war in the manner usual in war’. In other words,
in order to support a conviction on such a charge, it is not
enough to show that the persons charged have contrived to
obtain possession of an armoury and have, when called upon
to surrender it, used the rifles and ammunition so obtained
against the King’s troops. It must also be shown that the seizure C
of the armoury was part and parcel of a planned operation and
that their intention in resisting the troops of the King was to
overwhelm and defeat these troops and then to go on and crush
any further opposition with which they might meet until either
the leaders of the movement succeeded in obtaining possession D
of the machinery of Government or until those in possession of
it yielded to the demands of their leaders.”
270. Support was drawn from the Digest of Criminal Law by
Sir James Stephens. In the Digest, one of the meanings given to
the expression to levy war is: “Attacking in the manner usual in E
war (by sic) the King himself or his military forces, acting as such
by his orders, in the execution of their duty.” It was concluded “it
is, I think, quite impossible to say that any of these appellants
waged war in the sense in which that expression, as it occurs in
Section 121, Penal Code, was used”. “The appellants or some of
them were in possession of the armoury at Gaya for several days F
and it is perfectly clear that they never intended to use it as a base
for further operations.”
271. The next question is whether the daredevil and horrendous
acts perpetrated by the slain terrorists pursuant to the conspiracy,
amount to waging or attempting to wage war punishable under G
Section 121 IPC and whether the conspirators are liable to be
punished under Section 121 or 121-A or both.
272. Sections 121 and 121-A occur in the chapter “Offences
against the State”. The public peace is disturbed and the normal
channels of the Government are disrupted by such offences which H
890 SUPREME COURT REPORTS [2022] 10 S.C.R.

A are aimed at subverting the authority of the Government or
paralysing the constitutional machinery. The expression “war”
preceded by the verb “wages” admits of many shades of meaning
and defies a definition with exactitude though it appeared to be an
unambiguous phraseology to the Indian Law Commissioners who
examined the draft Penal Code in 1847. The Law Commissioners
B
observed:
“We conceive the term ‘wages war against the Government’
naturally to import a person arraying himself in defiance of the
Government in like manner and by like means as a foreign
enemy would do, and it seems to us, we presume it did to the
C authors of the Code that any definition of the term so
unambiguous would be superfluous.”
273. The expression “Government of India” was substituted for
the expression “Queen” by the Adaptation of Laws Order of 1950.
Section 121 now reads—
D
“121. Whoever wages war against the Government of India,
or attempts to wage such war, or abets the waging of such
war, shall be punished with death, or imprisonment for life, and
shall also be liable to fine.”

E 274. The conspiracy to commit offences punishable under Section
121 attracts punishment under Section 121-A and the maximum
sentence could be imprisonment for life. The other limb of Section
121-A is the conspiracy to overawe by means of criminal force or
the show of criminal force, the Central Government or any State
Government. The Explanation to Section 121-A clarifies that it is
F not necessary that any act or illegal omission should take place
pursuant to the conspiracy, in order to constitute the said offence.
275. War, terrorism and violent acts to overawe the established
Government have many things in common. It is not too easy to
distinguish them, but one thing is certain, the concept of war
G embedded in Section 121 is not to be understood in the international
law sense of inter-country war involving military operations by
and between two or more hostile countries. Section 121 is not
meant to punish prisoners of war of a belligerent nation. Apart
from the legislative history of the provision and the understanding
of the expression by various High Courts during the pre-
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 891
[UDAY UMESH LALIT, J.]

independence days, the Illustration to Section 121 itself makes it A
clear that “war” contemplated by Section 121 is not conventional
warfare between two nations. Organising or joining an insurrection
against the Government of India is also a form of war. “Insurrection”
as defined in dictionaries and as commonly understood connotes a
violent uprising by a group directed against the Government in
B
power or the civil authorities. “Rebellion, revolution and civil war”
are progressive stages in the development of civil unrest the most
rudimentary form of which is “insurrection” — vide Pan American
World Air Inc. v. Aetna Cas & Sur Co.18 (FR 2d at p. 1017). An
act of insurgency is different from belligerency. It needs to be
clarified that insurrection is only illustrative of the expression “war” C
and it is seen from the old English authorities referred to supra
that it would cover situations analogous to insurrection if they
tend to undermine the authority of the Ruler or the Government.
276. It has been aptly said by Sir J.F. Stephen:
“Unlawful assemblies, riots, insurrections, rebellions, levying D
of war are offences which run into each other and not capable
of being marked off by perfectly definite boundaries. All of
them have in common one feature, namely, that the normal
tranquillity of a civilised society is, in each of the cases
mentioned, disturbed either by actual force or at least by the E
show and threat of it.”
277. To this list has to be added “terrorist acts” which are so
conspicuous now-a-days. Though every terrorist act does not
amount to waging war, certain terrorist acts can also constitute
the offence of waging war and there is no dichotomy between F
the two. Terrorist acts can manifest themselves into acts of war.
According to the learned Senior Counsel for the State, terrorist
acts prompted by an intention to strike at the sovereign authority
of the State/Government, tantamount to waging war irrespective
of the number involved or the force employed.
G
278. It is seen that the first limb of Section 3(1) of POTA—
“with intent to threaten the unity, integrity, security or sovereignty
of India or to strike terror in the people or any section of the

18
505 FR 2D 989 (2ND Cir, 1974) H
892 SUPREME COURT REPORTS [2022] 10 S.C.R.

A people does any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or firearms
or other lethal weapons or poisons or noxious gases or other
chemicals or by any other substances (whether biological or
otherwise) of a hazardous nature or by any other means
whatsoever”
B
and the acts of waging war have overlapping features. However,
the degree of animus or intent and the magnitude of the acts done
or attempted to be done would assume some relevance in order
to consider whether the terrorist acts give rise to a state of war.
C Yet, the demarcating line is by no means clear, much less
transparent. It is often a difference in degree. The distinction gets
thinner if a comparison is made of terrorist acts with the acts
aimed at overawing the Government by means of criminal force.
Conspiracy to commit the latter offence is covered by Section
121-A.
D
279. It needs to be noticed that even in the international law sphere,
there is no standard definition of war. Prof. L. Oppenheim in his
well-known treatise on international law has given a definition
marked by brevity and choice of words. The learned author said:
“War is a contention between two or more States through their
E
armed forces, for the purpose of overpowering each other and
imposing such conditions of peace as the victor pleases.” Yoram
Dinstein, an expert in international law field analysed the said
definition in the following words:

F “There are four major constituent elements in Oppenheim’s
view of war: (i) there has to be a contention between at least
two States, (ii) the use of the armed forces of those States is
required, (iii) the purpose must be overpowering the enemy
(as well as the imposition of peace on the victor’s terms); and
it may be implied, particularly from the words ‘each other’,
G and (iv) both parties are expected to have symmetrical, although
diametrically opposed, goals.”
The learned author commented that Oppenheim was entirely right
in excluding civil wars from his definition. Mr Dinstein attempted
the definition of “war” in the following terms:
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 893
[UDAY UMESH LALIT, J.]

“War is a hostile interaction between two or more States, either A
in a technical or in a material sense. War in the technical sense
is a formal status produced by a declaration of war. War in the
material sense is generated by actual use of armed force, which
must be comprehensive on the part of at least one party to the
conflict.”
B
280. In international law, we have the allied concepts of undeclared
war, limited war, warlike situation — the nuances of which it is
not necessary to unravel.
281. There is no doubt that the offence of waging war was inserted
C
in the Penal Code to accord with the concept of levying war in
the English Statutes of treason, the first of which dates back to
1351 AD. It has been said so in almost all the Indian High Courts’
decisions of the pre-independence days starting with Aung Hla v.
Emperor19. In Nazir Khan case10 this Court said so in specific
terms in para 35 and extensively quoted from the passages in old D
English cases. Sir Michael Foster’s discourses on treason and the
passages from the decisions of the High Courts referred to therein
are also found in Ratanlal’s Law of Crimes. We should, therefore,
understand the expression “wages war” occurring in Section 121
broadly in the same sense in which it was understood in England
E
while dealing with the corresponding expression in the Treason
Statute. However, we have to view the expression with the eyes
of the people of free India and we must modulate and restrict the
scope of observations too broadly made in the vintage decisions
so as to be in keeping with the democratic spirit and the
contemporary conditions associated with the working of our F
democracy. The oft-repeated phrase “to attain the object of general
public nature” coined by Mansfield, L.C.J. and reiterated in various
English and Indian decisions should not be unduly elongated in the
present day context.
282. On the analysis of the various passages found in the cases G
and commentaries referred to above, what are the highlights we
come across? The most important is the intention or purpose behind
the defiance or rising against the Government. As said by Foster,
19
AIR 1931 Rang 235: ILR 9 Rang 404 (SB) H
894 SUPREME COURT REPORTS [2022] 10 S.C.R.

A “The true criterion is quo animo did the parties assemble?” In
other words the intention and purpose of the warlike operations
directed against the governmental machinery is an important
criterion. If the object and purpose is to strike at the sovereign
authority of the Ruler or the Government to achieve a public and
general purpose in contradistinction to a private and a particular
B
purpose, that is an important indicia of waging war. Of course,
the purpose must be intended to be achieved by use of force and
arms and by defiance of government troops or armed personnel
deployed to maintain public tranquillity. Though the modus
operandi of preparing for the offensive act against the Government
C may be quite akin to the preparation in a regular war, it is often
said that the number of force, the manner in which they are arrayed,
armed or equipped is immaterial. Even a limited number of persons
who carry powerful explosives and missiles without regard to their
own safety can cause more devastating damage than a large group
D of persons armed with ordinary weapons or firearms. Then, the
other settled proposition is that there need not be the pomp and
pageantry usually associated with war such as the offenders
forming themselves in battle line and arraying in a warlike manner.
Even a stealthy operation to overwhelm the armed or other
personnel deployed by the Government and to attain a commanding
E position by which terms could be dictated to the Government might
very well be an act of waging war.
283. While these are the acceptable criteria of waging war, we
must dissociate ourselves from the old English and Indian
authorities to the extent that they lay down a too general test of
F
attainment of an object of general public nature or a political object.
We have already expressed reservations in adopting this test in its
literal sense and construing it in a manner out of tune with the
present day. The court must be cautious in adopting an approach
which has the effect of bringing within the fold of Section 121 all
G acts of lawless and violent acts resulting in destruction of public
properties, etc., and all acts of violent resistance to the armed
personnel to achieve certain political objectives. The moment it is
found that the object sought to be attained is of a general public
nature or has a political hue, the offensive violent acts targeted
against the armed forces and public officials should not be branded
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 895
[UDAY UMESH LALIT, J.]

as acts of waging war. The expression “waging war” should not A
be stretched too far to hold that all the acts of disrupting public
order and peace irrespective of their magnitude and repercussions
could be reckoned as acts of waging war against the Government.
A balanced and realistic approach is called for in construing the
expression “waging war” irrespective of how it was viewed in
B
the long long past. An organised movement attended with violence
and attacks against the public officials and armed forces while
agitating for the repeal of an unpopular law or for preventing
burdensome taxes were viewed as acts of treason in the form of
levying war. We doubt whether such construction is in tune with
the modern day perspectives and standards. Another aspect on C
which a clarification is called for is in regard to the observation
made in the old decisions that “neither the number engaged, nor
the force employed, nor the species of weapons with which they
may be armed” is really material to prove the offence of levying/
waging war. This was said by Lord President Hope in R. v. Hardie20 D
in 1820 and the same statement finds its echo in many other English
cases and in the case of Maganlal Radhakishan v. Emperor21
(AIR at p. 185). But, in our view, these are not irrelevant factors.
They will certainly help the court in forming an idea whether the
intention and design to wage war against the established
Government exists or the offence falls short of it. For instance, E
the firepower or the devastating potential of the arms and
explosives that may be carried by a group of persons — may be
large or small, as in the present case, and the scale of violence
that follows may at times become useful indicators of the nature
and dimension of the action resorted to. These, coupled with the F
other factors, may give rise to an inference of waging war.
284. The single most important factor which impels us to think
that this is a case of waging or attempting to wage war against
the Government of India is the target of attack chosen by the
slain terrorists and conspirators and the immediate objective sought G
to be achieved thereby. The battlefront selected was the
Parliament House complex. The target chosen was Parliament

20
(1820) 1 State Tr NS 609, 610
21
AIR 1946 Nag 173: 47 Cri LJ 851 H
896 SUPREME COURT REPORTS [2022] 10 S.C.R.

A — a symbol of the sovereignty of the Indian republic. Comprised
of peoples’ representatives, this supreme law-making body steers
the destinies of a vast multitude of Indian people. It is a constitutional
repository of sovereign power that collectively belongs to the people
of India. The executive Government through the Council of
Ministers is accountable to Parliament. Parliamentary democracy
B
is a basic and inalienable feature of the Constitution. Entering
Parliament House with sophisticated arms and powerful explosives
with a view to lay a siege to that building at a time when members
of Parliament, members of the Council of Ministers, high officials
and dignitaries of the Government of India gathered to transact
C parliamentary business, with the obvious idea of imperilling their
safety and destabilising the functioning of the Government and in
that process, venturing to engage the security forces guarding
Parliament in armed combat, amounts by all reasonable perceptions
of law and common sense, to waging war against the Government.
D The whole of this well-planned operation is to strike directly at
the sovereign authority and integrity of our Republic of which the
Government of India is an integral component. The attempted
attack on Parliament is an undoubted invasion of the sovereign
attribute of the State including the Government of India which is
its alter ego. An attack of this nature cannot be viewed on the
E same footing as a terrorist attack on some public office building
or an incident resulting in the breach of public tranquillity. The
deceased terrorists were roused and impelled to action by a strong
anti-Indian feeling as the writings on the fake Home Ministry
sticker found on the car (Ext. PW-1/8) reveals. The huge and
F powerful explosives, sophisticated arms and ammunition carried
by the slain terrorists who were to indulge in “fidayeen” operations
with a definite purpose in view, is a clear indicator of the grave
danger in store for the inmates of the House. The planned
operations if executed, would have spelt disaster for the whole
nation. A warlike situation lingering for days or weeks would have
G
prevailed. Such offensive acts of unimaginable description and
devastation would have posed a challenge to the Government and
the democratic institutions for the protection of which the
Government of the day stands. To underestimate it as a mere
desperate act of a small group of persons who were sure to meet
H death, is to ignore the obvious realities and to stultify the wider
MOHAMMAD IRFAN v. STATE OF KARNATAKA 897
[UDAY UMESH LALIT, J.]

connotation of the “expression of war” chosen by the drafters of A
IPC. The target, the obvious objective which has political and
public dimensions and the modus operandi adopted by the hard
core “fidayeens” are all demonstrative of the intention of launching
a war against the Government of India. We need not assess the
chances of success of such an operation to judge the nature of
B
criminality. We are not impressed by the argument that the five
slain terrorists ought not to be “exalted” to the status of warriors
participating in a war. Nor do we endorse the argument of the
learned Senior Counsel Mr Sushil Kumar that in order to give rise
to the offence of waging war, the avowed purpose and design of
the offence should be to substitute another authority for the C
Government of India. According to the learned counsel, the
deprivation of sovereignty should be the pervading aim of the
accused in order to bring the offence under Section 121 and that
is lacking in the present case. We find no force in this contention.
The undoubted objective and determination of the deceased D
terrorists was to impinge on the sovereign authority of the nation
and its Government. Even if the conspired purpose and objective
falls short of installing some other authority or entity in the place
of an established Government, it does not in our view detract
from the offence of waging war. There is no warrant for such
truncated interpretation. E

37. Before we deal with the submission, we may extract the
relevant provisions. Sections 121 and 121-A of the IPC are as under:-
“121. Waging, or attempting to wage war, or abetting waging
of war, against the Government of India.—Whoever, wages F
war against the Government of India, or attempts to wage such
war, or abets the waging of such war, shall be punished with death,
or imprisonment for life and shall also be liable to fine.
Illustration: A joins an insurrection against the Government of
India. A has committed the offence defined in this section. G

121A. Conspiracy to commit offences punishable by section
121.—Whoever within or without India conspires to commit any
of the offences punishable by section 121, or conspires to overawe,
by means of criminal force or the show of criminal force, the
H
898 SUPREME COURT REPORTS [2022] 10 S.C.R.

A Central Government or any State Government , shall be punished
with imprisonment for life, or with imprisonment of either
description which may extend to ten years, and shall also be liable
to fine.
Explanation.—To constitute a conspiracy under this section, it is
B not necessary that any act or illegal omission shall take place in
pursuance thereof.”
38. What constitutes an offence under Section 121 of the IPC is
the waging of war or attempt to wage war or abetting of waging of such
war against the Government of India. The expression “waging of war”
C was considered by this Court in Navjot Sandhu11. Paragraph 34 of the
decision of this Court in Nazir Khan10 was also to the same effect. Said
paragraph reads as under:-
“34. The expression “waging war” means and can only mean
waging war in the manner usual in war. In other words, in order
D to support a conviction on such a charge it is not enough to show
that the persons charged have contrived to obtain possession of
an armoury and have, when called upon to surrender it, used the
rifles and ammunition so obtained against the government troops.
It must also be shown that the seizure of the armoury was part
and parcel of a planned operation and that their intention in resisting
E the troops of the Government was to overwhelm and defeat these
troops and then to go on and crush any further opposition with
which they might meet until either the leaders of the movement
succeeded in obtaining the possession of the machinery of
government or until those in possession of it yielded to the demands
F of their leaders.”
39. Section 121-A of the IPC, however, deals with conspiracy to
commit offences punishable under Section 121 of the IPC as well as
conspiracy to overawe by force, the Central Government or any State
Government. In terms of its application, the width of Section 121-A is
G thus not confined to conspiracy to commit offences punishable under
Section 121 of the IPC alone.
In Mir Hasan Khan v. State (or Ramanand v. State)17, the
Division Bench of the Patna High Court brought out the distinction
between both the limbs of conspiracies dealt with in Section 121A, as
under:
H
MOHAMMAD IRFAN v. STATE OF KARNATAKA 899
[UDAY UMESH LALIT, J.]

“The marginal note to section 121A is “conspiracy to commit A
offences punishable by section 121”. This was a strictly accurate
description of the section which it was proposed to enact in the
Bill originally introduced in the Legislative Council. It is quite clear
that the conspiracies aimed at in the Bill were conspiracies either
to wage war against the King in the manner in which it is usual to
B
wage war or conspiracies to raise an insurrection with the object
of subverting the constitution. The section, however, as finally
enacted brought within its scope other conspiracies also and the
marginal note is not a strictly accurate description of what is
contained in it. The words “conspires to overawe by means of
criminal force or the show of criminal force the Central C
Government or any Provincial Government” clearly embrace not
merely a conspiracy to raise a general insurrection, but also a
conspiracy to overawe the Central Government or any Provincial
Government by the organization of a serious riot or a large and
tumultuous unlawful assembly. Possibly, in modifying the section D
as it stood in the Bill, the Legislative Council had in mind the case
of Lord George Gordon22. Lord George Gordon put himself at the
head of a large mob which proceeded to the Houses of Parliament
in order to protest against the enactment of certain legislation.
After having made it protest, the mob dispersed, but certain
members of it proceeded to perpetrate outrages in different parts E
of the city of London. Lord George Gordon was tried on a charge
of high treason, and was acquitted the reason apparently being
that, while he had intended to make a demonstration outside the
House of Parliament, he had not been a party to the disorders
which resulted from it. Section 121A occurs in a chapter of the F
Penal Code which is headed “Offences against the State” whereas
the offence of conspiracy is contained in the preceding chapter,
Chapter VA which is headed “Criminal Conspiracy”. The
legislature in enacting section 121A clearly had in mind the English
Treason Felony Act of 1848 and I am very much inclined to think
that, in enacting it, it did not aim at conspiracies other than G
conspiracies which had a political object, that is, conspiracies to
overthrow the existing constitution or conspiracies to prevent the
enactment of legislation which was considered to be obnoxious or

22
21 State Trial 486 H
900 SUPREME COURT REPORTS [2022] 10 S.C.R.

A to compel the resignation of a member or member of the
Government who had become unpopular. As the section stands,
however, I am not prepared to say that in certain circumstances
persons who organize a strike among police men or certain other
public or municipal employees might not render themselves liable
to prosecution under it. Clearly, however, persons do not commit
B
this crime unless it was part and parcel of their plans to overawe
the Central or the Provincial Government by criminal force or
show of criminal force. The word “overawe” does not appear
anywhere else in the Penal Code except in this section and in
another section in the same chapter (section 124). In the Treason
C Felony Act,1848 which the authors of section 121A appear to
have had in mind, the words used are:
“intimidate or overawe both Houses or either House of
Parliament”

D and the words there must be read in conjunction with the words
immediately preceding them, which are
“in order by force or constraint to compel His Majesty to
change his measures or counsels”.
The word “overawe” clearly imports more than the creation of
E
apprehension or alarm or even perhaps fear. It appears to me to
connote the creation of a situation in which the members of the
Central or the Provincial Government feel themselves compelled
to choose between wielding to force or exposing themselves or
members of the public to a very serious danger. It is not
F necessary that the danger should be a danger of assassination
or of bodily injury to themselves. The danger might well be a
danger to public property or to the safety of members of the
general public.
40. As the text of the relevant Section shows, persons who plan
G to overawe the Central or the State Government by criminal force or
show of criminal force would be guilty of offence of entering into
conspiracy in terms of Section 121A of the IPC. The dictionary meaning
of the expression “overawe”is to subdue or inhibit with a sense of awe23.

23
H The Concise Oxford English Dictionary.
MOHAMMAD IRFAN v. STATE OF KARNATAKA 901
[UDAY UMESH LALIT, J.]

The expression “overawe” would thus imply creation of apprehension A
or situation of alarm and as rightly held by the Division Bench, it would
not be necessary that the danger should be one of assassination of or of
bodily injury to the members of the machinery or apparatus of the
Government but the danger might as well be to public property or to the
safety of members of the general public.
B
41. The conspiracy in the instant case, the intent of which was
clear from the minutes of the meetings and the consequential acquisition
of arms and explosives to effectuate the purpose and intent of said
conspiracy, would thus come well within the latter part of the conspiracy
dealt with in Section 121A of the IPC. As the explanation to Section C
121A of the IPC discloses, for an offence of conspiracy, it would not be
necessary that any act or illegal omission must take place in pursuance
thereof. Thus, even though no untoward incident had actually happened
as a result of the conspiracy, the matter would still come within the four
corners of Section 121A of the IPC.
D
The conviction recorded against the accused under Section 121A
of the IPC does not therefore call for any interference.
42. We may now turn to the submission based on Section 120-B
read with Section 116 of the IPC. Section 120-B of the IPC would apply
only when “no express provision is made in this regard for the punishment E
of such a conspiracy”. Since an express provision for particular kind of
conspiracy is dealt with specifically in Section 121A of the IPC, the
provision contained in Section 120-B of the IPC would have no application.
The submission, therefore, merits rejection.
43. The last submission was that there was no occasion for the F
High Court to enhance the quantum of punishment from seven years
which was awarded by the Trial Court to that of life imprisonment for
the offence punishable under Section 121-A of the IPC.
We have given serious consideration to this submission. The
conspiracy as disclosed in the instant matter, if it had been carried out, G
would have resulted in great damage and prejudice to the life and well-
being of the members of the general public as well as loss to the public
property. Such conspiracies to cause danger to public property or to the
safety of the members of the general public ought to be dealt with strictly.
Considering the acquisition of substantial quantity of arms and explosives
H
902 SUPREME COURT REPORTS [2022] 10 S.C.R.

A as well as the intent disclosed by diary Exh. P-92, and other materials on
record, the High Court was right in enhancing the sentence after
accepting the appeal preferred by the State in that behalf.
44. In the circumstances, we do not find any merit in the appeals
preferred by the Accused and as such all the appeals are dismissed.
B

Nidhi Jain Appeals dismissed.
(Assisted by : Tamana, LCRA)

C

D

E

F

G

H