Holding

Conviction under IPC s.123 without a separate charge is permissible under s.222 CrPC, and a final Supreme Court judgment cannot be challenged under Article 32.

Summary

The petitioners, accused in the 2001 Parliament attack, were originally convicted of several offences under POTA, the IPC and the Explosive Substances Act, with death sentences imposed. The Supreme Court partially set aside the convictions, substituting a conviction under IPC s.123 (concealment of design to wage war) without framing a separate charge. The petitioners filed a writ under Article 32 alleging violation of natural justice, denial of a chance to raise a defence under s.123, and that conviction without charge was unlawful. The Court held that s.222 of the CrPC authorises conviction for a minor offence even if not separately charged, and that the conviction under s.123 was justified as a cognate, lesser offence to the major charges. It also reiterated that a final judgment of this Court cannot be challenged under Article 32. Consequently, the writ petition was dismissed.

Issues considered

Whether conviction under IPC s.123 without a separately framed charge violates the principles of natural justice and the right to be heard.
Whether Section 222 of the Code of Criminal Procedure, 1973 permits conviction for a minor offence not specifically charged.
Whether a final judgment of the Supreme Court can be assailed under Article 32 of the Constitution.

Legislation cited

Code of Criminal Procedure, 1973s. 222, s. 39
Constitution of Indias. 129, s. 137, s. 145, s. 21, s. 32
Explosive Substances Acts. 3
Indian Penal Code, 1860s. 121, s. 121A, s. 122, s. 123, s. 302, s. 307
Prevention of Terrorism Act (POTA)s. 3(2), s. 3(3), s. 3(4), s. 3(5), s. 4(b)

Subjects

Article 32natural justiceSection 222 CrPCSection 123 IPCconviction without chargereview petitioncurative petitionParliament attack caseterrorismPOTAhabeas corpusfundamental right

Judgment

[2008] 8 S.C.R. 843

SHAUKAT HUSSAIN GURU A
v.
STATE (NCT) DELHI & ANR.
(Writ Petition (Criminal) No. 106 of 2007)

MAY 14, 2008
B
[P.P. NAOLEKAR AND V.S. SIRPURKAR, JJ.]
~
-+ Penal Code, 1860; S. 123:

Conviction in absence of framing of charge - Justifica-
tion of - Parliament attack case - Designate. Judge awarded c
death sentence to accused petitioner under the provisions of
POTA, /PC and Explosive Substances Act -Affirmed by High
Court - Appeal against, partly allowed by Supreme Court al-
teiing conviction of petitioner to one uls. 123 /PC and sen-
fenced him to undergo rigorous imprisonment of 10 years - D
I j Review petition as also Curative Petition dismissed by Su-
preme Court - Challenge to - Held: Judgment of Supreme
Court cannot be assailed invoking Article 32 of the Constitu-
tion - Supreme Court has specifically dealt with the question
about punishment of accused u/s. 123 even without framing E
the charge and held that he is not handicapped by the ab-
sence of the charge uls. 123 /PC - Evidence on record also
iustifies his conviction under s. 123 /PC - Moreover, s. 222
Cr.PC. empowered the Court to convict an accused for com-
mnting offence without framing of charge if, it was a minor of- F
-- fence - On "facts Supreme Court convicted him for commit-
ting the offence uls.123 /PC which is a minor offence to the
offences of which he faced trial - Prosecution successfully
proved the necessary ingredients of s. 123 /PC - Since the
defence was available to him even u/s.121, 121A and 122 IPC,
G
of which he had been charged with, he cannot claim that be-
> cause of non-framing of charge uf.s.123 /PC he was prejudi-
' cial/y affected as deprived of opportunity of raising the defence
available to him -Hence, conviction of petitioner uls. 123 /PC,
843 H
844 SUPREME COURT REPORTS [2008] 8 S.C.R.

A without framing the charge, justified - Review Petition as also
curative petition raising such plea have been dismissed by
the Supreme Court - No ground found to entertain the peti-
tion u/Article 32 of the Constitution - Constitution of India,
1950-Artic/es 21 and 32- Code of Criminal Procedure, 1973
B - Ss. 39 and 222.
Petitioner, one of the accused in Parliament attack
case, filed a writ petition praying for issuance of writ of
habeas corpus to bring him before the Court and to re-
lease him on the ground that his continued detention
C would be in violation of the fundamental right as guaran-
teed ulArt. 21 of the Constitution. Earlier, the petitioner
was tried with other accused persons by the Designated
Judge u/s. 3(2), (3), (4) and (5), 4(b) of the Prevention of
Terrorist Act, Ss.121, 121A, 122, 302 rlw s.1208 and s.307
D rlw s.1208 IPC and s.3 of the Explosive substances Act.
The Court found the petitioner and two others guilty of
committing the offences as charged and awarded death
sentence uls. 302 rlw s.1208 IPC and s.3(2) of POTA and
the Explosive Substances Act. Appeal filed by the peti-
E tioner was dismissed by the High Court. Appeal filed
thereagainst by the petitioner was partly allowed by this
Court altering his conviction to one u/s. 123 IPC and sen-
tenced him to undergo imprisonment of 10 years. Ag-
grieved by the order of this Court convicting him uls.123
F IPC without framing the charge, a Review Petition was
filed by the petitioner. The Review Petition as also the
Curative Petition which was filed later, were dismissed by
this Court. Hence the present writ petition.
Petitioner contended that as his conviction was al-
G tered to one uls.123, without framing any charge, he was
denied an opportunity to prove the fact that he had a rea- _....
sonable excuse for not informing the nearest Magistrate
or police officer of the commission of the offence of which
he along with other accused were charged of or their in-
H tention to commit an offence, nor he was given an oppor-
SHAUKAT HUSSAIN GURU v. STATE (NCT) 845
DELHI & ANR.

tunity to prove the fact that in fact he gave information to A
the nearest Magistrate or police officer of the commission
of the offence or intention to commit an offence of con-
spiracy he was charged of; that the offence under Sec-
tion 123 IPC is not a minor offence of the charged of-
fences, for the court to exercise the powers under Sec- B
tion 222 of the Cr.P.C.; and that the petitioner has not been
heard nor was given an opportunity to meet the charge
.... under Section 123 IPC at the trial nor in the appeal stage
or at the stage of the Review Petition or when the Cura-
tive petition was decided in chambers, which tantamounts c
to judgment being delivered against the accused without
following the principles of natural justice and since the
judgment was delivered without following the principles
of natural justice, it would be nullity and thus, this Court
c9uld exercise jurisdiction under Article 32 of the Consti-
D
tution to remedy the wrong and to set at liberty the ac-
tj
cused petitioner who is in illegal detention and serving
the sentence under Section 123 IPC under which he was
not charged.
State submitted that the charges which had been E
framed against the petitioner under Sections 121, 121A
and 122 IPC and the offence under Section 123 IPC for
which he was found guilty and sentenced, are cognate
offences having the main ingredients in common; that the
.... main ingredients consist of several particulars and' com- F'
bination of some of them constitute a complete offence
under Section 123 IPC, which is a minor offence, and such
combination having been proved the Court has rightly
convicted the accused petitioner under Section 123 IPC
for which neither separate charge was required to be
G
framed nor the Court was required to hear him again after
:..
framing of the charge; that this Court having found that
the Supreme Court found him guilty of committing the
offence u/s.123, which is a minor offence of the offences
for which the accused petitioner faced trial after framing
H
846 SUPREME COURT REPORTS [2008] 8 S.C.R.

A of the charges and his review petition and curative peti-
tion being dismissed, writ petition under Article 32 of the
Constitution of India would not be maintainable, the relief
under which could only be given by setting aside the judg-
ment of the Court.
B Dismissing the petition, the Court
HELD: 1.1 It is settled law now that judgment of this ~

Court cannot be assailed invoking Article 32 of the Con- ,....,
stitution of India. (Para - 11) [858-C]
c Rupa Ashok Hurra vs. Ashok Hurra and Another, (2002)
4 SCC 388; Naresh Shridhar Mirajkarvs. State of Maharashtra
AIR (1967) SC 1 = (1966) 3 SCR 744 and A.R. Antulay vs.
R. S. Nayak, (1988) 2 SCC 602 - followed.
1.2 In the present case, this Court has specifically
D
dealt with the question whether the offence under Sec- ·
tion 123 IPC of which the accused was not charged, is a ~'
minor offence falling under the charges framed, and held
that .the fact that there was no charge against the accused
under this particular Section, does not, in any way, result
E in prejudice to him because the charge of waging war and
other allied offences are the subject matter of charges. It
was held that the accused is not in any way handicapped
by the absence of charge under Section 123 IPC. The case
which he had to meet under Section 123 is no different >-
F from the case relating to the major charges which he was
confronted with. In the face of the stand he had taken and
his conduct even after the attack, he could not have
pleaded reasonable excuse for not passing on the infor-
mation. It was held that viewed from any angle, the evi-
G dence on record justifies his conviction under Section 123
IPC. (Para - 12) [860-F-H; 861-A] ....
•
1.3. Section 222 of the Code of Criminal Procedure,
1973 (Cr.P.C.) authorizes and gives jurisdiction to the court
to convict an accused of the charge which has not been
H
SHAUKAT HUSSAIN GURU v. STATE (NCT) 847
DELHI & ANR.

framed, if he is found guilty of a minor offence. The court A
need not frame a separate charge before the conviction
is rendered on a minor offence. (Para - 13) [861-8-C]
Shamnsaheb M. Multtani vs. State of Karnataka, (2001)
2 SCC 577 and Suman Sood @ Kamal Jeet Kaur vs. State of
Rajasthan, (2007) 5 SCC 634 - relied on. B
1.4. The accused was charged under Section 121 IPC
for waging war against the Government of India or at-
tempting to wage such war or abetting the waging of such
war. The concealment of such fact by an act or illegal c
omission with an intention to facilitate, or knowing that
such concealment will facilitate, waging of war, even in
the absence of proof of his involvement in waging of war
against the Government of India, will constitute an offence
and an accused can always be convicted for the conceal-
0
ment of such fact under Section 123 IPC. The prosecu-
tion having been successful in proving the necessary in-
gredients of Section 123 IPC, it would constitute a minor
offence of a major offence and, therefore, the petitioner was
convicted under Section 123 IPC which is a minor offence
of the offences he faced trial. (Para - 14) [862-E-G] E

1.5. The submission of the petitioner is that because
the charge was not framed under Section 123 IPC, the
petitioner lost an opportunity of raising a defence and
prove that there was a reasonable excuse for not inform- F
ing the commission of intended commission of the offence
under Section 123 IPC, to the nearest Magistrate or po-
lice officer or that he had really in fact informed the com-
mi~ion or intention to commit an offence under Section
123 lilC to the nearest Magistrate or police officer. This G
Court It not impressed by the submission of the peti-
tioner sir~e the defence was available to him even under
Sections 111, 121A and 122 of which he had been ex-
pressly char9'd with. Thus, it cannot be said that because
a specific char~ under Section 123 IPC was not framed,
H
848 SUPREME COURT REPORTS [2008] 8 S.C.R.

A he had lost an opportunity of raising the defence avail-
able to him and thus has been directly and prejudicially
affected. (Para - 16) [863-G-H; 864-A-C]
2. The petitioner filed the Review Petition raising the
ground that he was denied an opportunity of being heard
B against the charge under Section 123 IPC. Neither the
charge nor the evidence revealed the ingredients of an ·•
offence under Section 123 IPC and thus his conviction + t.-.t
h-<

for an offence under Section 123 IPC is an error apparent
on the face of the record and grave miscarriage of jus-
c tice. It has resulted in a complete denial of natural justice.
The petition was dismissed by this Court. Thus, the con-
I
tention raised by the petitioner that his conviction under
Section.123, IPC without there being any charge framed
tantamounts to grave miscarriage of justice and is con-
D trary to the principles of natural justice, has been rejected
by the Co11rt. Thereafter, a curative petition was filed by
~ '
the petitioner raising a specific ground that there was vio-
lation of the principles of natural justice and manifest in-
justice was caused to him because he had not been given
E opportunity to defend himself for an offence under Sec- •1
tion 123, IPC for which the charge had not been framed.
By rejection of the curative petition, the contention so
raised by the petitioner has been rejected. (Paras 17 and
20) [864-C,D; 866-B-E] >-
F 3. In the facts and circumstances of the case, this
Court does not find any ground to entertain the petition
under Article 32 of the Constitution of India. Moreover, for
granting the relief prayed for by the petitioner for en.ier-
taining the present writ petition it is necessary to set.jside
G the judgment delivered by a Division Bench of thi11 Court ... ~
confirmed by dismissal of the Review Petition pS also of
the Curative Petition, which cannot be granter' as not be-
ing permissible in exercise of the powers ur-Jer Article 32
of the Constitution of India. (Para - 21) [8'6-F-G]
H
SHAUKAT HUSSAIN GURU v. STATE (NCT) 849
DELHI & ANR. [P.P. NAOLEKAR, J]
~
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (CRL) A
No. 106 of 2007

(Under Article 32 of The Constitution of India)

Shanti Bhushan, Nitya Ramakrishnan, Sanjay Pathak and
Anitha Shenoy for the Appellant. B
Gopal Subramonium, Mukta Gupta, Manu Sharma, Vibhor
-+ Garg, Vikas Sharma and D.S. Mahra for the Respondents.

The Judgment of the Court was delivered by

P.P. NAOLEKAR, J: 1. Close to noon on 13.12.2001, five c
heavily armed persons entered the Parliament House Com-
plex and inflicted heavy casualties on the security men on duty.
In the gun battle which took place in the Parliament House Com-
plex, the five terrorists who stormed the Complex were killed.
Nine persons including eight security personnel and one gar- D
• --+-
dener succumbed to the bt!'lets of the terrorists and 16 persons
including 13 security men received injuries. The Investigating
Agency took up investigation which revealed possible involve-
ment of the four accused persons, namely, Mohd. Afzal, Shaukat
Hussain Guru, S.A.R. Gilani and Navjot Sandhu a/iasAfsan Guru E
along with some other proclaimed offenders said to be the lead-
ers of the banned organization known as Jaish-e-Mohammed.
The four accused persons were charged of different offences .
.....
2. The petitioner was charged under the following sections
of the Prevention of Terrorism Act (POTA), the Indian Penal Code F
(IPC) and the Explosive Substances Act:
i) Section 3(2) of POTA
ii) Section 3(3) of POTA
G
:.. iii) Section 3(4) of POTA
iv) ~ction 3(5) of POTA

v) Secion 4(b) of POTA
vi) Section121 of IPC H
850 SUPREME COURT REPORTS [2008] 8 S.C.R.

A -".- vii) Section 121A of IPC
""
viii) Section 122 of IPC
ix) Section 302 read with 1208 of IPC
x) Section 307 read with 1208 of IPC
8
xi) Section 3 of Explosive Substances Act.
3. The accused persons were tried by the Designated
+
Special Court on the charges framed. After the conclusion of '
the trial, the Designated Court convicted three accused, namely, rr
c Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Gilani for the
offences under Sections 121, 121A, 122, Section 1208 read
with Sections 302 and 307 read with Section 1208, IPC, sub-
sections (2), (3) and (5) of Section 3 and Section 4(b), POTA
and Sections 3 and 4 of the Explosive Substances Act. Ac-
D cused Nos. 1 and 2 were also convicted under Sections 3(4), ,.,.. I

POTA. The other accused Navjot Sandhu a/iasAfsan Guru was
acquitted of all the charges except the one under Section 123,
IPC. The :other three accused were awarded the death sen-
tence under Section 302 read with Section 1208, IPC and Sec-
E tion 3(2), POTA. They were also sentenced to life imprisonment
on as many as eight counts under the provisions of IPC, POTA
and the Explosive Substances Act in addition to varying amounts
of fine. ,..
4. The Designated Judge submitted the record of the case
F to the High .Court of Delhi for confirmation of death sentence
imposed on the three accused. Each of the four accused filed
appeals against the verdict of the Designated Judge. The Stale
also filed an appeal. The High Court dismissed the appea.'S of
Mohd. Afzal and Shaukat Hussain Guru and confirmed the death
G sentence imposed on them, and allowed the appeal of ~~e State Ji..
in regard to sentence under Section 121, IPC and awrrded them
death sentence under that Section also. The High court allowed ;..
the appeals of S.A.R. Gilani and Navjot Sandhu 2rasAfsan Guru
and acquitted them of all the charges. The juwment of the High
H Court gave rise to seven appeals - two c:l,.peals preferred by
SHAUKAT HUSSAIN GURU v. STATE (NCT) 851
DELHI & ANR. [P.P. NAOLEKAR, J]
....
Shaukat Hussain Guru and one appeal by Mohd. Afzal and four A
appeals preferredlby the State/Government of National Capital
Territory of Delhi against the acquittal of S.A.R. Gilani and Navjot
Sandhu alias Afsan Guru. The matter was heard by this Court
and by its judgment dated 4th August, 2005 this Court dismissed
the appeal filed by Mohd. Afzal and death sentence imposed B
upon him was confirmed. Appeal of the petitioner Shaukat
Hussain Guru was partly allowed. He was convicted under Sec-
-+
tion 123, IPC and sentenced to undergo rigorous imprisonment
of 10 years and to pay a fine of Rs. 25,000/- and in default of
payment of fine he was to undergo rigorous imprisonment for a
further period of one year. His conviction on the other charges
c
was set aside. The appeals filed by the State against the ac-
quittal of S.A.R. Gilani and Afsan Guru were dismissed.

5. Aggrieved by the order of this Court convicting the peti-
~ tioner under Section 123 IPC, a review petitio_n was filed by the D
-.;..
petitioner under Article 137 of the Constitution. The petitioner in
the review petition filed before this Court mainly took the ground
that the petitioner had not been charged under Section 123 IPC
but has been convicted by this Court for the offence under that
Section. In para 2 of the review petition, it was stated thus : E
"Section 123 IPC was not a charge that the prosecution
ever pressed against the petitioner, at any stage, not even
.._ in arguments before this court. This Hon'ble Court had
during the course of the appeal hearings not indicated
that this was a charge considered against the accused. F
Thus counsel for the petitioner had no occasion to address
any argument on the point. The petitioner had no
opportunity of being heard with regard to this charge, and
nothing in the charge-sheet or in the evidence put him on
notice that he would have to defend a charge under Section G
:.a
123 IPC. The petitioner had no opportunity of being heard
in this Hon'ble Court on the question of whether, upon
acquittal on all charges of conspiracy to com111it terrorist
offences and waging war, a conviction could have been
recorded under Section 123 of I PC which is of H
852 SUPREME COURT REPORTS [2008] 8 S.C.R.

A concealment of a design to wage war'. It is the petitioner's
respectful case that neither the charge-sheet nor the
evidence revealed the ingredients of an offence under
Section 123 IPC, aside of the fact that even taken at face
value the facts said to be proved do not establish the
B offence. In the circumstances, the petitioner's conviction
for an offence under Section 123 IPC is an error apparent
on the face of record and a grave miscarriage of justice.
+
It has been occasioned by a complete denial of natural
justice, for he had neither notice of, nor opportunity to
c defend the charge or represent against it. Section 123
IPC is not a minor offence with respect to Section 121 or
121A, in fact or in law."
The review petition was dismissed by this Court on 22nd
September, 2005.
D
6. Aggrieved by dismissal of review petition, the petitioner
filed a curative petition .contending therein that this Court had
acquitted the petitioner on all charges framed against him but
convicted him under Section 123 IPC, an offence with which he
E was not charged and in respect of which even the Public Pros-
ecutor did not advance any argument in this Court. It was al-
leged in the curative petition that since the petitioner was not
charged under Section 123 IPC, his conviction for that offence
is not only without jurisdiction but also in total contravention of
the principles of natural justice and is liable to be set aside in
F exercise of this Court's jurisdiction in a curative petition on the
ground of contravention of the principles of natural justice. It
was further contended that the charge under Section 123 IPC
having not been framed, he had no opportunity to raise and prove
the defence available to him under Section 39(1) of the Code
G of Criminal Procedure. The curative petition was also dismissed
by a Bench of four Judges of this Court on 12th January, 2007.
7. In the present petition filed by Shaukat Hussain Guru
under Article 32 of the Constitution of India, prayers are made
H for a writ of habeas corpus requiring the petitioner to be brought
SHAUKAT HUSSAIN GURU v. STATE (NCT) 853
DELHI & ANR. [P.P. NAOLEKAR, J]
....
before the court and to release him after recording a finding A
that his continued detention is in violation of his fundamental
right guaranteed by Article 21 of the Constitution.
8. The Division Bench of this Court in the judgment deliv-
ered on 4th August, 2005 has considered the case of the peti-
tioner from para 297 of State (NCT of Delhi) v. Navjot Sandhu 8
alias Afsan Guru, (2005) 11 SCC 600 and found that the con-
-... fessional statement of the petitioner would be excluded from
the consideration of the circumstances found against him. This
Court has taken into consideration the various circumstances
against the petitioner and has held in paras 320 and 321 of c
sec as under:
"320. In the light of the above discussion, can it be said
that the circumstances established by satisfactory
evidence are so clinching and unerring so as to lead to a
D
"+ conclusion, unaffected by reasonable doubt, that the
appellant Shaukat was a party to the conspiracy along
with his cousin Afzal? We find that there is no sufficient
evidence to hold him guilty of criminal conspiracy to attack
Parliament. The gaps are many, once the confession is
excluded. To recapitulate, the important circumstances E
against him are:
1. Taking a room on rent along with Afzal at Christian
.... Colony hostel into which Afzal inducted the terrorist
Mohammed about a month prior to the incident. Shaukat F
used to go there.
2. The motorcycle of Shaukat being found at Indira Vihar,
one of the hideouts of the terrorists which was hired by
Afzal in the 1st week of December 2001.
G
)I 3. His visits to Gandhi Vihar house which was also taken
on rent by Afzal in December 2001 to accommodate the
terrorists and meeting Afzal there quite often, as spoken
to by PW34.
4. Accompanying Afzal and Mohammed for the purchase H
854 SUPREME COURT REPORTS [2008] 8 S.C.R.

~

A of motorcycle by Afzal.
5. His frequent calls to Afzal especially on the date of
attack.
6. His leaving Delhi to Srinagar on the date of attack itself
B in his truck with Afzal who carried a mobile phone, laptop
used by the terrorists and cash of Rs.10 lakhs. .;

7. The fear aod anxiety with which he and his wife +
conversed over the phone on the night of following day.

c These circumstances, without anything more, do not lead
to the conclusion that Shaukat was also a party to the
cbnspiracy in association with the deceased terrorists.
The important missing link is that there was no occasion
on which Shaukat ever contacted any of the deceased
terrorists on phone. Shaukat was not shown to be moving
D ~~
with the deceased terrorists at any time excepting that he
used to go with Afzal to the boys' hostel where Mohammed
was staying initially and he once accompanied Afzal and
Mohammed to the second hand Motorcycle shop. He did
not accompany Afzal at the time of purchase of chemicals, f!'O!
E
etc. used for preparation of explosives and motor car used
by the terrorists to go to the Parliament House. In the
•
l!!i!!
1.•.(

absence of any evidence as regards the identity of the
satellite phone number, the court cannot presume that the >
calls were received from a militant leader who is said to
F be the kingpin behind the operations. The frequent calls
and meetings between Shaukat and Afzal should be viewed
in the context of the fact that they were cousins. Though
his inclination and willingness to lend a helping hand to
Afzal even to the extent of facilitating him to flee away from
G Delhi to a safer place soon after the incident is evident -"' 4
from his various acts and conduct, are not sufficient to
establish his complicity in the conspiracy as such. Certain
false answers given by him in the course of examination
under Section 313 are not adequate enough to make up
H the deficiency in the evidence relating to conspiracy as far
SHAUKAT HUSSAIN GURU v. STATE (NCT) 855
DELHI & ANR. [P.P. NAOLEKAR, J]

as Shaukat is concerned. At the same time, the reasonable A
and irresistible inference that has to be drawn from the
. circumstances established is that the appellant Shaukat
had the knowledge of conspiracy and the plans to attack
the Parliament House. His close association with Afzal during
the crucial period, his visits to the hideouts to meet Afzal, B
which implies awareness of the activities of Afzal, the last
minute contacts between him and Afzal and their immediate
·+ departure to Srinagar in Shaukat's truck with the
incriminating laptop and phone held by Afzal would certainly
give rise to a high degree of probability of knowledge on C
the part of Shaukat that his cousin had conspired with others
to attack Parliament and to indulge in the terrorist acts. He
was aware of what was going on and he used to extend
help to Afzal whenever necessary. Having known about the
plans of Afzal in collaborating with terrorists, he refrained
0
from informing the police or Magistrate intending thereby
or knowing it to be likely that such concealment on his part
will facilitate the waging of war. In this context, it is relevant
to refer to Section 39 CrPC:
"39. Public to give information of certain E
offences.-(1) Every person, aware of the
commission of, or of the intention of any other person
to commit, any offence punishable under any of the
following sections of the Indian Penal Code (45 of
1860), namely:- F
(i) Sections 121 to 126, both inclusive, and Section
130 (that is to say, offences against the State
specified in Chapter VI of the said Code);

G
shall, in the absence of any reasonable excuse, the
burden of proving which excuse shall lie upon the
person so aware, forthwith give information to the
nearest M~gistrate or police officer of such
commission or intention." H
856 SUPREME COURT REPORTS [2008) 8 S.C.R.

A 321. Thus, by his illegal omission to apprise the police or At(

Magistrate of the design of Afzal and other conspirators to
attack Parliament which is an act of waging war, the
appellant Shaukat has made himself liable for punishment
for the lesser offence under Section 123 IPC. If he had
B given the timely information, the entire conspiracy would
have been nipped in the bud. The fact that there was no
charge against him under this particular section, does 1
not, in any way, result in prejudice to him because the -+
!"'
charge of waging war and other allied offences are the •~~
..
c subject matter of charges. We are of the view that the ~;

..
I
accused Shaukat is not in any way handicapped by the t

absence of charg9 under Section 123 /PC. The case
which he had to meet under Section 123 is no different '
from the case relating to the major charges which he was
confronted with. In the face of the stand he had taken and
D
his conduct even after the attack, he could not have
pleaded reasonable excuse for not passing on the ~

information. Viewed from any angle, the evidence on
record justifies his conviction under Section 123 /PC."

E (emphasis supplied)
9. It is contended by Shri Shanti Bhushan, learned senior
counsel for the petitioner that no charge under Section 123 IPC
having been framed, the petitioner was not given an opportu-
nity to prove the fact that he had a reasonable excuse for not
F informing the nearest Magistrate or police officer of the com-
~
"
mission of the offence of which the accused were charged of or
their intention to commit an offence, nor the petitioner was given
an opportunity to prove the fact that in fact he gave information
to the nearest Magistrate or police officer of the commission of
G the offence or intention to commit an offence of conspiracy they
were charged of. It is submitted by the learned senior counsel .>(

that the offence under Section 123 IPC is not a minor offence of
the charged offences, for the court to exercise the powers un-
der Section 222 of the Cr.P.C. The submission of the learned
H senior counsel further proceeded with that the petitioner has
SHAUKAT HUSSAIN GURU v. STATE (NCT) 857
DELHI & ANR. [P.P. NAOLEKAR, J]

not been heard nor was given an opportunity to meet the charge A
under Section 123 IPC at the trial nor in the appeal stage or at
the stage of the review petition or when the curative petition
was decided in chambers, which tantamounts to judgment be-
ing delivered against the accused without following the principles
of natural justice. It was submitted by the learned senior coun- B
sel that the judgment delivered without following the principles
of natural justice would be nullity and thus this Court should ex-

~
... ercise jurisdiction under Article 32 of the Constitution to rem-
edy the wrong and to set at liberty the accused petitioner who is
in illegal detention and serving the sentence under Section 123 c
IPC under which he was not charged.

10. On the contrary, it is submitted by Shri Go pal
Subramanium, learned Additional Solicitor General that the
charges which had been framed against the petitioner under
Sections 121, 121A and 122, IPC and the offence under Sec- D
tion 123, IPC for which he wa!S found guilty and sentenced, are
~
cognate offences having the main ingredients in common. The
main ingredients consist of several particulars and combina-
tion of some of them constitute a complete offence under Sec-
tion 123, IPC, which is a minor offence, and such combination E
having been proved the Court has rightly convicted the accused
petitioner under Section 123, IPC for which neither separate
charge was required to be framed nor the Court was required
to hear him again after.framing of the charge. The learned Ad-
.... ditional Solicitor General further urged that this Court having F
found that Section 123 is a minor offence of the Sections for
which the accused petitioner faced trial after framing of the
charges and his review petition and curative petition being dis-
missed, writ petition under Article 32 of the Constitution of India
would not be maintainable, the relief under which could only be
G
given by setting aside the judgment of the Court.
"' 11. In Rupa Ashok Hurra v Ashok Hurra and Another,
(2002) 4 SCC 388, a Constitution Bench of this Court has con-
sidered whether an aggrieved person is entitled to any relief
against the final judgment/order of this Court after dismissal of H
858 SUPREME -COURT REPORTS [2008] 8 S.C.R.

A the review petition either under Article 32 of the Constitution or -.J(

otherwise. After considering in threadbare the judgments of
this Court in Naresh Shridhar Mirajkar v. State of Maharashtra,
AIR 1967 SC 1 = (1966) 3 SCR 744 Uudgment by 9 learned
Judges), A.R. Antu/ay v. R.S. Nayak, (1988) 2 sec 602 Uudg-
B ment by 7 learned Judges) and Triveniben v. State of Gujarat,
(1989) 1 SCC 678 Uudgment by Constitution Bench), the Con-
stitution Bench has held in Rupa Ashok Hurra (supra) that a
final judgment/order passed by this Court cannot be assailed in _..
an application under Article 32 of the Constitution of India by an
c aggrieved person, whether he was a party to the case or not.
Thus, it is settled law now that judgment of this Court cannot be
assailed invokingArtide 32 of the Constitution of India. In Rupa
Ashok Hurra (supra), the Court has considered the arguments
advanced by the senior counsels that the principle of finality of
the order of this Court had to be given a go-by and a case is
D
required to be re-examined when the orders were passed with-
out jurisdiction or in violation of the principles of natural justice ..;--
and that the Court has inherent jurisdiction to examine the case
under that jurisdiction of th is Court. It was also contended that
oral hearing on such an application should be given and it should
E be heard by a Bench of Judges ot.her than those who passed
the order on the ground that it would inspire confidence in the
litigant public. It was submitted that Article 129 of the Constitu-
tion declared this Court to be court of record, so it would have
inherent powers to pass appropriate orders to undo injustice to ,...\-.
F any party resulting from the judgments of this Court. It was urged
that in case of gross miscarriage of justice, this Court ought to
have exercised its inherent powers by entertaining an applica-
tion to examine the final order of this Court, even when review
was rejected, in the rarest of the rare cases. Where the order
G was passed without jurisdiction or in violation of the principles
of natural justice, the case would fall in the rarest of the rare Jo(
,
cases. It was contended that the corrective power must be ex-
ercised so as to correct injustice in a case of patent lack of
jurisdiction. It was urged that in case of manifest illegality and
H palpable injustice, this Court under its inherent powers could
SHAUKAT HUSSAIN GURU v. STATE (NCT) 859
DELHI & ANR. [P.P. NAOLEKAR, J]

reconsider its final judgment/order. On the submissions of the A
counsel, the Court was faced with the question whether an or-
der passed by this Court can be corrected under its inherent
powers after dismissal of the review petition on the grounds
that it was passed either without jurisdiction or in violation of the
principles of natural justice or due to unfair procedure giving B
scope for bias which resulted in abuse of the process of the
court or miscarriage of justice to an aggrieved person. The
Constitution Bench after considering various cases on the topic
and the arguments of the senior counsels appearing in the case,
laid down mechanism to deal with the matters where the ques- C
tion of inherent lack of jurisdiction, violation of the principles of
natural justice, manifest illegality or palpable injustice has been
brought to the notice of the Court. This Court has held that to
prevent abuse of its process and to cure gross miscarriage of
justice, it may reconsider its judgment in exercise of its inherent
0
powers and then laid down tests and the requirements for exer-
• cising such jurisdiction by the Court and the mechanism there-
for in paras 50 to 53 as under:

"50. The next step is to specify the requirements to entertain
such a curative petition under the inherent power of this E
Court so that floodgates are not opened for filing a second
review petition as a matter of course in the guise of a
curative petition under inherent power. It is common ground
that except when very strong reasons exist, the Court should
not entertain an application seeking reconsideration of an F
order of this Court which has become final on dismissal
of a review petition. It is neither advisable nor possible to
enumerate all the grounds on which such .a petition may
be entertained. · ··

51. Nevertheless, we think that a petitioner is entitled to G

' . relief ex dftb/to justitiae if he establishes (1) violation of
principles of natural justice in that he was not a party to the
lis but the judgment adversely affected his interests or, if
he was a party to the lis, he was not served with notice of
the proceedings and the matter proceeded as if he had H
860 SUPREME COURT REPORTS [2008] 8 S. C.R.

A notice and (2) where in the proceedings a learned Judge
failed to disclose his connection with the subject-matter or
the parties giving scope for an apprehension of bias and
the judgment adversely affects the petitioner.
52. The petitioner, in the curative petition, shall aver
B specifically that the grounds mentioned therein had been
taken in the review petition and. that it was dismissed by ·1
circulation. The curative petition shall contain a certification ·~

by a Senior Advocate with regard to the fulfillment of the
above requirements. ,;_
I

c
53. We are .of the view that since the matter relates to re-
examination of a final judgment of this Court, though on
limited ground, the curative petition has to be first circulated
to a Bench of the three senior-most Judges and the Judges
who passed the judgment complained of, if available. It is
D
only when a majority of the learned Judges on this Bench
conclude that the matter needs hearing that it should be
... ~

listed before the same Bench (as far as possible) which
may pass appropriate orders. It shall be open to the Bench
. at any stage of consideration of the curative petition to
E ask a Senior Counsel to assist it as amicus curiae. In the
event of the Bench holding at any stage that the petition is
without any merit and vexatious, it may impose exemplary
costs on the petitioner."
~-

F 12. In the present case, the Court has specifically dealt
with the question whether the offence under Section 123, !PC
of which the accused was not charged, is a minor offence fall-
ing under the charges framed, and held that the fact that there
was no charge against the accused under this particular Sec-
tion, does not, in any way, result in prejudice to him because the
G
charge of waging war and other allied offences are the subject ,.
matter of charges. It was held that the accused Shaukat is not in
any way handicapped by the absence of charge under Section
123, IPC. The:case which he had to meet under Section 123 is
no different from the case relating to the major charges which
H
SHAUKAT HUSSAIN GURU v. STAT~ (NCT) 861
DELHI & ANR. [P.P. NAOLEKAR, J]

..,_ he was confronted with. In the face of the stand he had taken A
and his conduct even after the attack, he could not have pleaded
.. reasonable excuse for not passing on the information. It was
held that viewed from any angle, the evidence on record justi-
fies his conviction under Section 123, IPC.

13. Section 222 of the Code of Criminal Procedure, 1973 B
(Cr.P.C.) authorizes and gives jurisdiction to the court to convict
an accused of the charge which has not been framed, if he is
~. found guilty of a minor offence. The court need not frame a
separate charge before the conviction is rendered on a minor
~
offence. In Shamnsaheb M. Mu/ttani v. State of Kamataka, c
(2001) 2 SCC 577, this Court has held in paras 15 and 16 as
under:

"15. Section 222(1) of the Code deals with a case "when
a person is charged with an offence consisting of several
D
particulars". The section permits the court to convict the
-.;. accused "of the minor offence, though he was not charged
with it". Sub-section (2) deals with a similar, but slightly
different situation.
xxx xxx xxx E
16. What is meant by "a minor offence" for the purpose
of Section 222 of the Code? Although the said expression
is not defined in the Code it can be discerned from the
_..._ context that the test of minor offence is not merely that the
prescribed punishment is less than the major offence. The F
two illustrations provided in the section would bring the
above point home well. Only if the two offences are cognate
offences, wherein the main ingredients are common, the
one punishable among them with a lesser sentence can
be regarded as minor offence vis-a-vis the other offence." G

In another case of Suman Sood @ Kamal Jeet Kaur v.
" State of Rajasthan, (2007) 5 SCC 634 (in para 29), a 2-Judge
Bench of this Court was of the view that:
Now, it is well settled that if the accused is charged H
862 SUPREME COURT REPORTS [2008) 8 S.C.R.

A for a higher offence and on the evidence led by the ~
prosecution, the· court finds that the accused has not
committed that offence but is equally satisfied that he has "'
committed a lesser offence, then he can be convicted for
such lesser offence. Thus, if A is charged with an offence
B of committing murder of B, and the court finds that A has
not committed murder as defined in Section 300 IPC but
is convinced that A has committed an offence of culpable
·~
homicide not amounting to murder (as defined in Section ....
299 IPC), there is no bar on the court in convicting A for
c the said offence and no grievance can be made by A
against such conviction". ~

14. To prove an offence under Section 121, IPC, the pros-
ecution is required to prove that the accused is guilty of waging
war against the Government of India or attempts to wage such
D wa,r, or abets the waging of such war, whereas for proving the
offence under Section 123, IPC against the accused the pros-
ecution is required to prove that there was a concealment by an +
act or by illegal omission of existence of a design to wage war
against the Government of India and he intended by such con-
E cealment to facilitate, or he knew that such concealment will
facilitate, the waging of war. In the present case, the accused
was charged under Section 121, IPC for waging war against
the Government of India or attempting to wage such war or abet-
ting the waging of sui;h war. The concealment of such fact by
~
F an act or illegal omission with an intention to facilitate, or know-
ing that such concealment will facilitate, waging of war, even in
the absence of proof of his involvement in waging of war against
the Government of India, will constitute an offence and an ac-
cused can always be convicted for the concealment of such fact
under Section 123, IPC. The prosecution having been successful
G
in proving the necessary ingredients of Section 123, IPC, it
would constitute a minor offence of a major offence and, there- "'.
•
fore, the petitioner was convicted under Section 123, IPC which
,..is- a minor offence of the offences he faced trial.
H 15. It is contended by the learned senior counsel for the
SHAUKAT HUSSAIN GURU v. STATE (NCT) 863
DELHI & ANR. [P.P. NAOLEKAR, J]

petitioner that the charge having not been framed under Sec- A
tion 123 IPC the petitioner had lost opportunity of raising de-
fence provided under Section 39, Cr.P.C. The relevant portion
of Section 39 reads as under:
"39. Public to give information of certain offences.-
(1) Every person, aware of the commission of, or of the 8

• intention of any other person to commit, any offence
punishable under any of the following sections of the Indian
Penal Code (45 of 1860), namely:-

(i) Sections 121 to 126, both inclusive, and section 130 c
(that is to say offences against the State specified in
Chapter VI of the said Code);

shall, in the absence of any reasonable excuse, the burden
0
of proving which excuse shall fie upon the person so aware,
forthwith give information to the nearest Magistrate or
police officer of such commission or intention;

xxx xxx XXX:'
/ 16. Section 39, Cr.P.O. puts a burden on every person E
aware of the commission of, or of the intention of any other per-
son to commit, any offence punishable under Sections 121 to
~ 126 IPC, to forthwith inform to the nearest Magistrate or police
officer of such commission or intention. The exception being if.
there is a reasonable excuse for not informing that fact to the F
nearest Magistrate or police officer of such commission or in-
tention, the burden of proof lies upon the person so aware of
the commission or intention to commit, or that he has in fact
given such information to the nearest Magistrate or police cif-
> ficer. On such proof, the accused would be exonerated of the G
duty cast upon him under Section 39, Cr.P.C. The submission
of the learned senior counsel is that because the charge was
not framed under Section 123, IPC, the petitioner lost an op-
portunity of raising a defence and prove that there was a rea-
sonable excuse for not informing the commission of intended H
864 SUPREME COURT REPORTS [2008] 8 S.C.R
-'(

A commission of the offence under Section 123, IPC, to the near-
est Magistrate or police officer or that he had really in fact in-
formed the commission or intention to commit an offence under
Section 123, IPC to the nearest Magistrate or police officer.
We are not impressed by the submission of the learned seni.or
B counsel for the petitioner. This defence was available to the
petitioner even under Sections 121, 121A and 122 of which he ••
_.,,.
had been expressly charged with. Thus, it cannot be said that
because a .specific charge under Section 123, IPC was not
framed, he had lost an opportunity of raising the defence avail-
~
c able to him and thus has been directly and prejudicially affected.
17. After the judgment was delivered by this Court, the
petitioner filed a review petition raising therein the contention
that he was denied an opportunity of being heard against the
charge under Section 123, IPC. Neither the charge nor the evi-
D dence revealed the ingredients of an offence under Section 123, _,_
· IPC and thus his conviction for an offence under Section 123,
IPC is an error apparent on the face of the record and grave
miscarriage of justice. It has resulted in a complete denial of
natural justice.
E 18. Order XL in Part VIII of the Supreme Court Rules, 1966 ....
deals with 'review', under which an application for review shall
be by a petition and shall be filed within 30 days from the date
of the judgment or order sought to be reviewed. It shall set out .......
clearly the grounds for review. Unless otherwise directed by the
F court, the review petition so filed shall be disposed of by circu-
lation without any oral arguments. The petitioner may supple-
ment his petition by additional written arguments. The court may
either dismiss the petition or direct notice to the opposite party.
An application for review was as far as practicable be circu-
G lated to the same Judge or Bench of Judges that deliv'3red the >(
judgment or order sought to be reviewed. Thus under the-rules, •
a review petition is to be disposed of by circulation in cham-
bers without any oral arguments. Unless there is a specific or-
der of the court for placing the review petition in the open court,
H the matter shall be decided by circulation without there bein~;
SHAUKAT HUSSAIN GURU v. STATE (NCT) 865
DELHI & ANR. [P.P. NAOLEKAR, J]
'f
......, any oral arguments, on the basis of the submissions made in A
the petition, but the petitioner may supplement his case by ad-
ditional written arguments.
19. The scope and ambit of a review petition filed in this
Court has been dealt with by a 3-Judge Bench of this Court in
Mis. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, B
AIR 1980 SC 674, as under in para 8:
~
"It is well settled that a party is not entitled to seek a review
of a judgment delivered by this Court merely for the purpose
of a rehearing and a fresh decision of the case. The normal c
principle is that a judgment pronounced by the Court is final,
and departure from that principle is justified only when
circumstances of a substantial and compelling character
make it necessary to do so. Sajjan Singh v. State of Rajasthan,
(1965) 1SCR933 at p. 948. For instance, ifthe attention of
D
the Court is not drawn to a material statutory provision during
"'f
the original hearing, the Court will revise its judgment. GL.
Gupta v. D.N. Mehta, (1971) 3 SCR 748 at p. 760. The Court
may also reopen its judgment if a manifest wrong has been
done and it is necessary to pass an order to do full and
effective justice. O.N. Mohindroov. Distt. Judge, Delhi, (1971) E
2 SCR 11 at p. 27. Power to review its judgments has been
conferred on the Supreme Court by Article 137 of the
Constitution, and that power is subject to the provisions of
..;.. any law made by Parliament or the rules made under Article
145. In a civil proceeding, an application for review is F
entertained only on a ground mentioned in 0. XLVll Rule 1 of
the Code of Civil Procedure and in a criminal proceeding on
the ground of an error apparent on the face of the record.
(Order XL R. 1, Supreme Court Rules, 1966). But whatever
the nature of the proceeding, it is beyond dispute that a 'G
:>' review proceeding cannot be equated with the original
• hearing of the case, and the finality of the judgment delivered
by the Court will not be reconsidered except 'where a glaring
omission or patent mistake or like grave error has crept in
earlier by judicial fallibility.'Chandra Kanta v. Sheikh Habib, H
866 SUPREME COURT REPORTS [2008] 8 S.C.R.

A (1975) 3 SCR 933."
20. The review petition of the petitioner raising the ground
as mentioned hereinabove was dismissed by the Court by its
order dated 22"d September, 2005. Thus, the contention raised
. B by the petitioner that his conviction under Section 123, IPC with-
out there being any charge framed tantamounts to grave miscar-
riage of justice and is contrary to the principles of natural justice,
has been rejected by the Court. Thereafter, a curative petition
Was filed by the petitioner as provided and under the procedure
laid down in Rupa Ashok Hurra (supra). The curative petition
C was placed i'n chambers by circulation before the three seniormost
Judges and one Judge who was a member of the Bench which
initially delivered judgment (the other Judge of the Bench Hon.
P.V. Reddi, J. being retired) and after due consideration the cura-
tive petition was also rejected by this Court on 121h January, 2007.
[j"' In the curative petition also, a specific ground had been raised by
the petitioner that there was violation of the principles of natural
justice and manifest injustice was caused to him because he had
, not been given opportunity to defend himself for an offence under
Section 123, IPC for which the charge had not been framed. By
E rejection of his curative petition, the contention so raised by the
petitioner has, been rejected.
21. In the facts and circumstances of the case, we do not
find any ground to entertain the petition under Article 32 of the
Constitution of India. Moreover, for granting the relief prayed
F for by the petitioner for entertaining the present writ petition it is
necessary to set aside the judgment delivered by a Division
Bench of this Court confirmed by dismissal of the review peti-
tion as also of the curative petition, which cannot be granted as
not being permissible in exercise of the powers under Article
G 32 ofthe Constitution of India.
22. Thatbeing the case, we do not find any reason to en-
tertain the present petition and grant relief as prayed for by the
petitioner. The writ petition is, accordingly, dismissed.
H S.K.S. Petition Dismissed.