Above: Tejinderpal Singh (far left) and Satnam Singh have been acquitted

Two hijackers of an Indian Airlines plane, who had already served prison terms in Pakistan, are acquitted by a Delhi court after the prosecution fails to prove the charges

~By Venkatasubramanian

Thirty-seven years after the incident took place, a Delhi court recently acquitted two men of charges of waging a war against the country in a case relating to the hijacking of a Delhi-Srinagar Indian Airlines flight and forcing it to land in Pakistan in 1981. Tejinderpal Singh and Satnam Singh were granted “benefit of doubt” by the Court, which said that the prosecution had failed to prove beyond “reasonable doubt” the charges levelled against them.

The facts of the case are thus: On September 29, 1981, an Indian Airlines plane carrying 111 passengers and a crew of six on a flight from Delhi to Srinagar via Amritsar was hijacked by five knife-wielding advocates of a separate Sikh homeland. They forced the pilot to fly to Pakistan, where security forces captured them. Forty-five passengers, who were held as hostages, were freed. The accused, Tejinderpal and Satnam, were tried under Section 402B of the Pakistan Penal Code by the Special Judge, Lahore, and convicted for hijacking of the Indian plane. The plane was hijacked to secure the release of Jarnail Singh Bhindranwale, who was then in custody in India. The accused used their kirpans to terrorise the crew as well as passengers, which amounted to use of force. Three other co-accused—Gajinder Singh, Jagbir Singh Cheema and Karan Singh—are still absconding.

Tejinderpal and Satnam underwent imprisonment in Pakistan from September 30, 1981 to October 31, 1994. On their return to India, both filed an application for discharge from the case, on the grounds that they could not be tried and convicted for the same offence twice, as they had already undergone sentences in Pakistan.

Tejinderpal, after serving the sentence in Pakistan, reached New Delhi from Canada on December 25, 1997. Satnam reached India in 1999 through Nepal. After initial confusion among officials whether they could be tried for the same offence twice, a trial court took cognisance of the offences of sedition and waging war against India against them in August 2012. Satnam had been already discharged from the case by then Additional Chief Metropolitan Magistrate (ACMM) Sangita Dhingra Sehgal, on February 11, 2000. However, Tejinderpal’s discharge application, moved on July 19, 2000, was kept pending. He was investigated for the offence of sedition, as it was not among the offences for which he was convicted and sentenced in Pakistan.

The Additional Sessions Judge, Ajay Pandey, of Patiala House Courts, New Delhi, on August 27 found that the accused were not identified by any witness produced by the prosecution as having committed any act of waging or attempting to wage or abetting waging of war against the Indian government. Two prosecution witnesses, supposedly crew members of the ill-fated flight, denied the identity of the accused. Although the Additional Public Prosecutor suggested that the accused shouted slogans in the plane, the two witnesses denied it. The judge also found that the Investigating Officer (IO) did not verify the names of the crew members of the flight. Nor did he ask Indian Airlines to supply the names of the crew members of the flight. There is no duty roster, no log book, or any other data suggesting that the two witnesses were crew members on the ill-fated flight. The IO did not even obtain the list of passengers on that flight from Indian Airlines.

As a result, the judge agreed that the possibility of some specific witnesses being chosen by the IO to support his case could not be ruled out, and their testimony could not be said to be beyond reasonable doubt.

First, the trial court concluded that the accused were entitled to acquittal for want of proper sanction. Sanction under Section 196, CrPC, for prosecution of accused persons was found to have been granted without application of mind and considering the facts of the case.

Second, this was a unique case as prosecution of the accused was initiated on the filing of application for discharge by them. It was found that the main chargesheet filed by the police after registration of FIR No. 105/81 was not available either with the police or in the court records. The Ministry of Home Affairs was unable to trace the documents regarding the prosecution sanction given in the case. The Court agreed with the submission that it could not do any guesswork about the grant or refusal of sanction for prosecution or about the proceedings in the main chargesheet in the case.

The presence of the accused or providing them a hearing is not necessary for grant of sanction under Section 196, CrPC. No investigation was carried out against Tejinderpal after his return to India after serving a sentence in Pakistan. Judge Pandey held: “Prosecution case must stand on its own legs. It cannot take benefit of the weakness of defence. Conviction of accused would make them liable to death penalty or life sentence. Graver the punishment, higher the burden of proof. The court must weigh all probabilities, legal and technical, to satisfy that there is no bar against trial and that all requirements are proved by prosecution beyond reasonable doubt.

“If a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record.”

The court further said that “it is not bound by the judgment of Special Judge at Pakistan and an independent appreciation of evidence is required to be done on the basis of evidence led in the court itself. The record on the basis of which judgment was passed by the Pakistan court, the charge-sheet, evidence, etc. is not available before this court…. Reference of the earlier conviction by the Pakistan court does not justify the judgment or the reasoning in order of conviction but only to highlight that the accused might not be subsequently tried in India.”

In the absence of identification and description of specific role of each accused by witnesses, the Court was of the view that the prosecution miserably failed to prove charges under Section 121 or 121A of the Indian Penal Code against them.