It is disappointing to note that Mr. Shanti Bhushan, an eminent lawyer and a former Law Minister of India, has written in an article (This plot needs a new ending) in The Hindu newspaper that Sanjay Dutt had possessed the weapons (for the possession of which he was convicted under the Arms Act) for self-defence and that their possession without a licence would not constitute an offence. Noting that Section 96 of the Indian Penal Code provides that “Nothing is an offence which is done in the exercise of the right of private defence”, Mr. Shanti Bhushan further writes that “When the law says nothing done in the exercise of the right of private defence is an offence, it would be a travesty of justice to send Sanjay Dutt to jail”.
Referring to the evidence in the case establishing that well before the Mumbai blasts (12 March 1993), there had been serious riots in Mumbai (December 1992-January 1993), and that Sanjay Dutt’s father, Sunil Dutt, and the whole family was helping to protect innocent Muslims being targeted by the Shiv Sena mobs, Mr. Shanti Bhushan writes that:
“It was evident that there was a clear danger of a mob attack on Sanjay Dutt and his family, including his parents. An attack by such a mob could not have been deterred except by the threat of an automatic weapon and it was for this very reason that Sanjay Dutt had agreed to acquire the automatic weapon, namely, the AK-56 Rifle (in mid-January 1993). It is also clear that no private person is ever granted a licence for acquiring an automatic weapon and therefore the only possible way for Sanjay Dutt to protect his family against a mob attack was to acquire the automatic weapon through alternative channels, so long as the purpose of acquiring this automatic weapon was to defend his family from a mob attack, as both the designated court and the Supreme Court clearly found on the evidence recorded. This act of acquiring the possession of the automatic weapon would not constitute the offence as shown above from the relevant provisions of the IPC.”
Calling Sanjay Dutt “an honourable person”, Mr. Shanti Bhushan opines that the aforesaid important aspect of the matter has been completely overlooked by the Supreme Court and constitutes a clear error of law on the face of the judgment itself (download the judgment, here) by which Sanjay Dutt has been convicted. Mr. Shanti Bhushan advises filing of a review petition before the Supreme Court, and also a curative petition, if needed for doing justice to Sanjay Dutt.
I have quoted detailed extracts from the aforesaid article of Mr. Shanti Bhushan in order to narrate his whole reasoning for arguing that Sanjay Dutt was entitled to the right of private defence and that his conviction under the Arms Act for possession of weapons was wrong.
In this article, my attempt is to show that the reasoning given by Mr. Shanti Bhushan is fallacious and untenable in law in view of the well-established principles of law governing the right of private defence.
At the outset itself, it needs to be mentioned that we live in a modern state with a rule of law. We have a written Constitution and a large number of statutes, governing, inter alia, the rights and obligations of the persons. All persons are expected to follow the laws of the land. It is not that we live in a jungle raj where might is right, and where everybody has to take care of his own defence. In a state with rule of law, it is the primary duty of the state to protect the life and property of the individuals. It is the duty of the state to maintain peace and public order. If an individual expects a threat from another person, he is expected to report to the public authorities who are then expected to provide necessary protection to such individual. However, it is also true that the state may not be in a position to provide protection to each and every individual and for all times. Consequently, a well-defined right of private defence has been given under law to every individual to defend his life and property in accordance with the conditions and limits applicable to such right, when he is exposed to an imminent danger.
One of the most important limitations on the right of private defence is laid down in Section 99 of the Indian Penal Code (IPC). This section specifically lays down that:
“There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.”
This is very important limitation on the right of private defence and has a sound logic behind it. Thus, if a person is apprehending a threat to his life or property, but the threat is not imminent and there is time to approach the public authorities (such as the police) to seek protection, the right to private defence is NOT available in such a situation. The reason behind this curtailment of the right of private defence is very simple. As mentioned above, we have a rule of law. It is the primary duty of the state to protect the individuals. So, if you have time to approach the state authorities for seeking protection in respect of a threat, you don’t have a right of private defence in that case. In such a case, you cannot take law in your own hands. If every person starts taking law into his own hands even though he had sufficient time to approach the public authorities for protection, then what we would have is a jungle raj. But, we have specifically created a state with a rule of law where everyone is expected and required to obey the law and respect the institutions of the state instead of taking law in one’s own hands.
In the case of Laxman Sahu v. State of Orissa, 1986 Supp SCC 555 (at page 556) : AIR 1988 SC 83, the Supreme Court held that:
“the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be present, real or apparent”. [Emphasis and underlining supplied by me]
[Also see: Kulwant Singh v. State of Punjab, (2004) 9 SCC 257, at page 268, in this regard.]
In the case of Jai Dev v. State of Punjab, AIR 1963 SC 612 : (1963) 3 SCR 489, the Supreme Court held as under:
“In a well-ordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties. This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious.” [Emphasis and underlining supplied by me]
In the above-mentioned Jai Dev v. State of Punjab case, the Supreme Court further observed as under:
“…To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, … … The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. It entitles him to defend himself and law gives him the right to secure his victory over his assailant by using the necessary force. This necessarily postulates that as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence, (vide Sections 102 and 105 of the Indian Penal Code). …” [Emphasis and underlining supplied by me]
Likewise, in the case of Munney Khan v. State of M.P., (1970) 2 SCC 480 (at page 484) : AIR 1971 SC 1491, the Supreme Court held as under:
“There is also no right of private defence in cases where there is time to have recourse to the protection of public authorities. The right of private defence is essentially a defensive right circumscribed by the statute, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or retributive purpose.” [Emphasis and underlining supplied by me]
In the case of Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404 (at page 415) : AIR 2005 SC 1460, it was held by the Supreme Court as under:
“In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.” [Emphasis and underlining supplied by me]
[In this regard, also see: Rizan v. State of Chhattisgarh, (2003) 2 SCC 661 (at page 672) : AIR 2003 SC 976.]
It is thus clear that the right of private defence is not absolute or unfettered. It is subject to the conditions and limitations as imposed under the same provisions of law that make this important right available to every individual. Thus, it is necessary that the threat to an individual must be real, present and immediate making it impossible for him to approach the public authorities for protection. Moreover, as soon as the apprehension of threat ceases to exist, the right of private defence is no more available.
However, it is to be noted that in the case of Sanjay Dutt, the alleged incidents of Mumbai riots took place in December 1992 to January 1993. The prohibited weapons were seized from Sanjay Dutt after the Mumbai blasts (that took place on 12 March 1993). Thus, there was a time gap of about 2 months between these two sets of incidents. Within this sufficiently long period, Sanjay Dutt had ample opportunity to approach the police authorities and other public authorities to seek protection in case he felt threatened. In fact, it is specifically mentioned in the said article of Mr. Shanti Bhushan that Sunil Dutt (father of Sanjay Dutt) had in fact complained to the police about the threat apprehended by them after the Mumbai riots. Thus, there was no right of private defence available to Sanjay Dutt after such a long lapse of time (it may be pointed out that he continued to unlawfully possess the weapons for a long duration after acquiring them illegally).
Let us now try to see how much time gap can render the right of private defence meaningless. In this regard, it is pertinent to point out that in the case of Onkarnath Singh v. State of U.P., (1975) 3 SCC 276 (at page 289) : AIR 1974 SC 1550, a grappling incident had initially taken place between the complainant party and the accused persons. After their disengagement, both the parties proceeded towards their respective houses. The complainant party had already retreated and gone away to a distance of about 365 to 420 ft. in a time period of about 4-5 minutes, when the accused persons returned armed with deadly weapons from their nearby houses and then pursued, overtook, surrounded and made a murderous assault on the complainant party in which incident one person was killed and another was seriously injured. In these circumstances, the Supreme Court held that the aforesaid two incidents were separated by time and distance and that there was no continuity of action. The Supreme Court further held that in such a situation, a right of private defence never accrued to the accused persons.
Thus, it is important to note that even where the time gap of the provocation or threat was only about 4-5 minutes, the Supreme Court held that the accused did not have the right of private defence. Moreover, when the party that posed the threat had already retreated, there was no question of any right of private defence. Of course, the time limit mentioned in this case is only illustrative and there can be no hard and fast rule in this regard, and it ultimately depends on the factual matrix of each case.
In the case of Sanjay Dutt, the so-called provocation had taken place about two months earlier. Moreover, the Mumbai riots had already come to an end. The riotous mobs had retreated long back. There were no riotous mobs when he acquired or possessed or continued to posses the weapons. With such long gap of time and distance, there can be no right of private defence.
It is further pertinent to mention that in the aforesaid case of Onkarnath Singh v. State of U.P., (1975) 3 SCC 276 (at page 289) : AIR 1974 SC 1550, the Supreme Court further held as under:
“A right of private defence given by the Penal Code is essentially one of defence or self-protection and not a right of reprisal or punishment. It is subject to the restrictions indicated in Section 99, which are as important as the right itself. One of them is that the harm inflicted in self-defence must be no more than is legitimately necessary for the purpose of defence. Further, the right is co-terminus with the commencement and existence of a reasonable apprehension of danger to body from an attempt or a threat to commit the offence (see Section 102). It avails only against a danger, real, present and imminent. Such a danger did not exist here. There was no reasonable apprehension of harm, much less of grievous hurt or death — even if at any anterior time there was any — to the appellants from the fleeing complainant party when the latter were attacked by the former. …” [Emphasis and underlining supplied by me]
Thus, the Supreme Court has unequivocally held that even if there was a reasonable apprehension of death or grievous hurt at any anterior time, that would not give rise to the right of private defence. The Supreme Court further held that the right of private defence avails only against a danger, real, present and imminent.
In the case of Sanjay Dutt, the threat that was apprehended about two months earlier had thus become completely immaterial for the purpose of giving him a right of private defence to acquire and possess deadly weapons. He did not face a danger, real, present and imminent when he decided to acquire and possess (and continued to possess) the prohibited automatic weapons. Such automatic weapons could be used to kill a large number of people. No right of private defence accrued to him for acquiring and possessing such deadly weapons. It is also pertinent to mention that these weapons were given to Sanjay Dutt from the same huge consignment of arms and explosives that was used for Mumbai blasts of 12 March 1993 in which 257 innocent persons had died and hundreds of others were injured.
As emphasized earlier, Sanjay Dutt should have sought police protection if he and his family apprehended danger, since he had sufficient time. It is germane to reiterate that he acquired and possessed the said weapons much after the Mumbai riots had discontinued.
In fact, faced with a similar situation, even an ordinary person of ordinary prudence would perhaps have gone out of Mumbai for some days instead of acquiring such deadly weapons in violation of laws of the land. Availability of sufficient time and alternative options is thus of essence when considering the right of private defence.
In this regard, it is unfortunate and ironical when Mr. Shanti Bhushan writes: “It is also clear that no private person is ever granted a licence for acquiring an automatic weapon and therefore the only possible way for Sanjay Dutt to protect his family against a mob attack was to acquire the automatic weapon through alternative channels…”.
Thus, knowing fully well that the laws do not permit acquisition of such automatic weapon, Mr. Shanti Bhushan, unfortunately, appears to be advising that one can go and acquire such automatic weapons from alternative channels (including from terrorists???) if there is apprehension of threat!!! What will happen if everyone starts following the same method of acquiring such automatic weapons? It is noteworthy that a large number of people feel insecure and apprehend danger in one form or another. So, if everyone starts accumulating such deadly weapons in the so-called purported exercise of right of private defence instead of approaching the police authorities, what will happen to our society then? Will it be a jungle raj or goonda raj or the rule of law? It is unfortunate that a former law minister of India should make such observations, which are not supported by any stretch of imagination by the laws of the land.
In any case, if at all there was a doubt about the decisions of the Supreme Court in this regard, the same is repelled by its decision in the case of Mohd. Khalid v. State of W.B., (2002) 7 SCC 334. In this case, on 16 March 03.1993 (ironically, a few days after the aforesaid Mumbai blasts), explosions took place in and around B.B. Ganguly Street in the Bow Bazar area of Calcutta. These explosions resulted in total demolition of a building and partial demolition of two other adjacent buildings. A total of 69 persons died and several others were injured. During rescue operations, one more bomb exploded, and fortunately, 22 live bombs were recovered before they could explode and they were defused subsequently. In this case, one of the defences taken by the accused persons was that of right of private defence. This claim of private defence can best be described by reproducing the relevant extract from the above decision of the Supreme Court (para 7, pages 346-347 of SCC):
“…Even if, according to them, the prosecution case is accepted in toto, it only proves that the Muslims were trying to protect themselves in the event of a possible attack of the Hindus on them. In the bomb blast which took place in Bombay a few months earlier, the police was totally ineffective and could not save the lives of a number of Muslims and were silent onlookers. That spread a message of fear in the minds of the Muslims and as the prosecution version itself goes to show, they were preparing to protect themselves as a matter of exercise of their right of private defence, in the most likely event of attack by the Hindus on them. This according to them rules out application of the TADA Act. They were not the aggressors and their preparations to protect their rights and properties in the event of an attack was not to spread terror or to cause any unlawful act but was an act intended to be used as a shield and not a weapon. …”
However, this plea of right of private defence was rejected by the Supreme Court and it made the following observations in this regard:
“… the preparation of bombs and possession of bombs would tantamount to terrorizing the people. … … it cannot be contended that if the bombs are for self-defence there was no mens rea. Preparation and storage of bombs are per se illegal acts. … … Further question is when the right of private defence arises. It never commences before a reasonable apprehension arises in the mind of the accused. Here there was no evidence that there was any indication about an attack on the Muslims and, therefore, the question of any reasonable apprehension does not arise. The cover of self-protection when pierced unravels a sinister design to unleash terror. … … right is not available if there is sufficient time for recourse to a public authority. … …”.
In a similar way, Sanjay Dutt had also allegedly made preparation by acquiring, possessing / storing automatic weapons to protect in the event of a future attack on him or his family. In view of the reasons mentioned above, there can be no right of private defence in such a situation when there was no imminent, real and present danger of an attack.
What was apprehended by him was merely a speculation or based on surmises that such an attack may perhaps happen in future. However, in several cases, the Supreme Court has held that a plea of right of private defence cannot be based on surmises and speculation. [see, (1) Arjun v. State of Maharashtra, (2012) 5 SCC 530 (at page 535) : “AIR 2012 SC 2181; (2) Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404 (at page 415); (3) Raj Pal v. State of Haryana, (2006) 9 SCC 678 (at page 682).]
Moreover, in the case of Rajinder v. State of Haryana, (1995) 5 SCC 187 (at page 197), while referring to Section 97 of IPC, the Supreme Court held that:
“On a plain reading of the above section it is patently clear that the right of private defence, be it to defend person or property, is available against an offence. To put it conversely, there is no right of private defence against any act which is not an offence.” [Emphasis and underlining supplied by me]
However, in the case of Sanjay Dutt, no offence had taken place against which he could claim a right of private defence. In fact, it is he who committed an offence under the Arms Act. No offence was committed or attempted to be committed against him at the time when he acquired or possessed lethal weapons.
It is also germane to refer to the following observations of the Supreme Court in the case of State of U.P. v. Ram Swarup, (1974) 4 SCC 764 (at page 772) : AIR 1974 SC 1570:
“The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression.” [Emphasis and underlining supplied by me]
However, in the case of Sanjay Dutt, he did not act in good faith when he acquired automatic deadly weapons, more so when it was not in the face of an imminent peril. He had several other lawful options, but he chose an unlawful and illegal option by committing an offence under Arms Act.
Likewise, one may also refer to the case of Kashi Ram v. State of Rajasthan, (2008) 3 SCC 55 (at page 69) : AIR 2008 SC 1172, in which the Supreme Court emphasized that the right of self-defence only arises if the apprehension is unexpected and one is taken unawares. [Also see: Mohd. Khan v. State of M.P., (1971) 3 SCC 683 : 1972 Cri LJ 661.]
However, in the case of Sanjay Dutt, he had acquired and possessed the weapons as a “pre-planned preparation” and NOT in the face of an unexpected event in which one is taken unawares. Instead of approaching the public authorities for protection in case he apprehended threat, he took a conscious decision in a pre-planned manner to acquire the automatic weapons to retaliate against any future attack on him or his family, which was highly speculative and based on surmises (in fact, in reality, no such attack actually took place on him or on his family even after the Mumbai blasts).
Right of private defence is for sudden and unexpected danger when one is taken by surprise and when one is required to defend oneself instantaneously. It is not available when one can pre-plan and make preparations. It is nothing but becoming aggressor when you plan for a future event by acquiring weapons. Acquiring and possessing prohibited weapons for a future speculative event is clearly an offence under the Arms Act and not by way of right of private defence.
In the case of Gurbachan Singh v. State of Haryana, (1974) 3 SCC 667 (at page 668) : AIR 1974 SC 496, it was held by the Supreme Court that no right of private defence can exist against an unarmed and unoffending individual.
However, in the case of Sanjay Dutt, there was not even an attack on him, what to speak of whether it was armed or unarmed attack. It was a mere speculation. The plea of self-defence, therefore, is absolutely inapplicable in the facts of the case.
It is not enough to read Section 96 (and 97) of the Indian Penal Code in isolation, as Mr. Shanti Bhushan has apparently done in his above article. One has to read all the relevant sections together in their entirety. It is then that one has to decide when such a right was available to Sanjay Dutt in the factual matrix of the case. It is pertinent to point out that in the aforesaid case of Kashi Ram v. State of Rajasthan, the Supreme Court had held that:
“The right of private defence is codified in Sections 97 to 106 of the Penal Code and all these sections will have to be read together to ascertain whether in the facts and circumstances the appellant-accused are entitled to right of private defence or they exceeded the right of private defence. Only when all these sections are read together, we get comprehensive view of the scope and limitation of that right. The position of law is well settled for over a century both in England and India.”
And, when one reads all the legal provisions together in their entirety, it is unequivocally clear that Sanjay Dutt did not have any right of private defence in the facts of the case. He has committed an offence under the Arms Act and he has been rightly convicted therefor.
Due to time constraints, I am not in a position to refer to the details of the judgment of the Supreme Court (and that of the trial court) in the case of Sanjay Dutt. In particular, I would not like to discuss in detail as to why he was acquitted under the provisions of TADA while he was convicted under the Arms Act. However, in brief, I may point out that the decision of the trial court acquitting him under the provisions of TADA is not a very convincing decision. However, I won’t go into those details here. That may perhaps be a topic for a separate detailed discussion. Also, I don’t want to go into other details of the evidence as per which Sanjay Dutt was aware of the broader conspiracy of the Mumbai blasts and his phone conversations with Dawood gang operatives. Perhaps, the readers may read this excellent article in Tehelka.com (How the Star Escaped TADA) that explains in detail some of the relevant issues; please also read this story.
Let me now conclude this article. As I mentioned in the beginning of this article, it is unfortunate that a former law minister of India and an eminent lawyer should write such an article. One can understand if such a defence is taken by an advocate for an accused during the court proceedings, since in such a case it is the duty of the advocate (who holds a brief on behalf of the accused) to take all possible defences that law permits irrespective of what the court ultimately holds on the basis of such defences. However, in an academic article, one does not hold a brief on behalf of an accused person and has to be impartial and fair. One can understand if a novice advocate writes an academic article with such a defence. However, it is unfortunate that a senior and experienced lawyer should write such an article without properly analyzing the relevant legal provisions and decisions. The only explanation can perhaps be that when eminent people from left, right and centre are competing with one-another to show their sympathies with Sanjay Dutt with their half-baked opinions, even an eminent lawyer of such highest-level stature may also perhaps be tempted to write something and falter. Celebrity status is something that can produce amazing results.
As I write these concluding lines, I notice a news report in TOI: Sanjay Dutt breaks down, says he will not seek pardon. Well, there may be tears in his eyes (one reader of the TOI report commented: after-all, Sanjay Dutt is making use of his acting capabilities). But, what about the tears of the relatives of 257 persons who died in Mumbai blasts and those of hundreds injured? Should a different (softer) law apply to a celebrity? Or, on the other hand, a celebrity should be awarded harsher punishment than an ordinary citizen, because a celebrity is perhaps expected to be more informed and knowledgeable and more balanced in his approach?