| The situation in the courts is like an ODI. There one explosive innings with the bat, one spell of outstanding bowling, a catch out of the blues or a brilliant run out could change the course of the game.
In the courts, an argument well done, a point of law raised at the opportune time could change the entire faith. In the case of Sanjay Dutt, accused number 117, now a convict under the Indian Arms Act, things were looking bright and rosy till last Tuesday.
The actor himself was sure that he is almost out of the 14 years of what he calls trauma. But there is a slip between the cup and the lip. The next act in the drama will be ongoing in the TADA court at Arthur Road jail as you read this article.
On February 6, when senior counsel V.R. Manohar argued for Sanjay Dutt the probation of Offenders act, 1958 was never brought in use to its full extent, almost everyone thought about it.
The court will make sure that the act is put in use by granting Dutte probation. Manohar argued that the act is applicable under all the circumstances except two, i.e. when the offences seeking probation are either under acts which are mentioned under section 18 of the act or under acts which have been enacted after 1958.
In either cases the convicts have committed offences under acts that are specifically excluded from the purview of the probation act. In the 'Defence of India Act' an accused is released on the basis of good conduct. In case of other acts the provision analogous to the section 43 of 'Defence of India' act is the 'Probation of Offenders Act.
"The probation law is introduced to treat hardened criminals differently than the offenders who have a chance to reform. Also, mere breach of legal provisions does not mean that the man is bad character not fit to live in a society," argued Manohar.
He added the character and circumstances under which the offence was committed should be considered by the judicial forum deciding the provisions of the law. If an accused is punished under section 3 (7) of Arms Act then the right to invoke the provision of the act lies with the applicant.
"His (Dutt's) possession was without mens rea, he certainly did not have intension to use the weapon. He certainly breached a law but is entitled for mercy, and should not be punished. The court should follow certain considerations and look into circumstances which led to Dutt possessing a weapon in a prohibited area," Manohar had almost convinced the court.
But a series of events almost changed the course of the trial the next week as far as the question of probation to Dutt is concerned. Firstly, it was the agitations by the relatives of the inmates, co-accused in BBC-1 trial, who objected to Sanjay Dutt getting special treatment.
The objection came in the form of 69 convicts making applications for removal of TADA in their cases, the same way it was done in case of Sanjay Dutt. The application will be decided by the court on February 22.
Then there was a protest outside the court by the relatives of convicts. They shouted anti-Dutt slogans and accused of bias. Then came an application from one Abhimanyu Altekar, stating that the prosecution is not doing its job the way it was expected to do. The court reacted saying that it too expect the prosecution to raise its standard.
All the agitating events culminated in Special Public Prosecutor Ujjawal Nikam taking up the issue by the scruff of the neck. His argument on February 13 and 14 certainly made waves forcing the defence to feel the need for a further argument for probation of the star.
"Sanjay Dutt knew different kinds of weapons. Can one say that he was not able to distinguish between a fire arm for hunting and one for mass destruction? And what about he meeting gangsters such as Dawood Ibrahim, Iqbal Mirchi, Sharad Shetty and Chotta Rajan," Special Public Prosecutor Ujjawal Nilkam was in his element. He vehemently argued against convicted accused Sanjay Dutt getting the benefit under section 4 of the Probation of Offenders Act, 1958.
He argued on various points which should be considered while giving the benefit of the provision of the act to an applicant. Nikam argued that one such point of consideration is the age factor.
The benefit should go to a convict who is young and would have a chance to improve.
He added that Sanjay Dut is 48 years of age now and anyone to say that he is likely to shape up wrongly if sent to jail must be exaggerating.
"He himself says that he is no habitual criminal. There is no chance that he would go from 'bad to worse' if the court decides not to give him any benefit of provision of section 4 of the Probation of Offenders Act," argued Nikam.
The second point that Nikam wanted the court to consider was that of the circumstances under which Sanjay Dutt came in possession of the AK 56 rifle. Nikam said weapons were accepted clandestinely but that proves that there was mens rea. Nikam argued that Dutt did not disclose the fact to police and tried to destroy the weapons also indicate his guilty mind. "Such attempts are made by criminals when they have mens rea for committing offence," Nikam said.
He further argued that Dutt says he had the weapons with him to protect his family but he did not disclose that to his family, to his father. Nikam further brought to the notice of the court the effect that would be cast on the society at large if Dutt gets the benefit of the provision of probation.
He said that the punishment serves either of the four purposes. It could be deterrent, reformatory, preventive and retributory. When it is retributory it's effect not only on the aggrieved party but on the society has also to be considered.
"If Sanjay Dutt gets the benefit of probation, someone will have an anti-aircraft gun at ones terrace saying that he apprehended some enemy aircraft to bombard his house," Nikam argued.
"He possessed an AK56 a 9 mm pistol and hand grenades, why those were needed for self-defence?" Nikam argued, adding that the AK 56 rifle has the capacity of mass destruction.
In Dubai sometime in December 1991 Dutt was introduced to Dawood and his brother by Firoz Khan. Dawood had invited him for dinner. After that, Anees used to frequent the sets of the movie that was shot in Dubai.
"There are virtues and there are bad trends in character but nothing comes by inheritance. A person is known by the company he keeps. The gangsters company reflects Dutt's true character. If social wrongs are sought t be redressed by individuals law of Jungle will come in existence," Nikam said. He insisted that Dutt's was not a fit case for probation. Rules that are beyond the purview of probation act Section 18 of Probation of Offenders act
Saving of operation of certain enactments- Nothing in this Act shall affect the provisions of section 31 of the Reformatory Schools Act, 1897 (8 of 1897), or sub-section (2) of section 5 of the Prevention of Corruption Act, 1947 ( 2 of 1947), or of any law in force in any State relating to juvenile offenders. Some post 1958 rules are excluded from benefits of probation
Many sections have been added to the Indian Penal Code after 1958 i.e. sections such as 498 (a) IPC in which case the probation act does not apply. However, in every other case say the Atrocity Act where the minimum punishment could be of a year or so probation act is applicable. The question of applicability of the act existed even in 1958 and is still under dispute in 2007. According to many in case of Indian Arms act, Probation is possible. Section 4 of the Probation of Offenders Act
Power of court to release certain offenders on probation of good conduct-
(1) When, any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct , then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour. |
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