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FINEPRINT
June 13, 2019

Should hijack hoax callers and other nasty pranksters be jailed for life?

> On June 11, 2019, Special NIA Judge KM Dave sent businessman Birju Salla to jail for life and ordered him to pay Rs 5 crore in fines.

> The anti-hikacking law was set up for the Masood Azhars of this world and that’s the frame in which investigations occurs.

> Though the employees of Jet Airways and the passengers of the flight grounded by Salla’s prank were compensated, no attempt has been     made to pay the airline.

RANJEEV DUBEY

If it wasn’t for the terrifying reality facing Birju Salla, one could, at first sight, be amused with the news of a lovesick businessman trying to shut down the Delhi office of a major airline in order to compel his reluctant girlfriend to quit her job. Instead, on June 11, 2019, Special NIA Judge KM Dave sent him to jail for life and ordered him to pay Rs 5 crore in fines. How did it come to this?

On July 19, 2017, investigators claim that the already married businessman Birju Salla concealed his marital status and wed his girlfriend of two years, a Jet Airways employee, in Delhi. He soon asked her to quit her job, which she declined. On October 27, Salla prepared a hijack note in English and Urdu (using Google Translate, no less!) and printed it out. On October 30, 2017, Salla boarded a Jet Airways flight from Bombay to Delhi and stuck this note in the tissue box of the front toilet shortly after takeoff:
Flight No. 9W 339 is covered by Hijackers and aircraft should not be land and flown straight to POK. 12 people on board. lf you put landing gear you will hear the noise of people dying. Don't take it as a joke. Cargo area contains explosives bomb and will blast if you land Delhi. Allah is Great.

Cabin crew quickly discovered the note and informed the pilots who immediately landed at Ahmedabad. Salla was arrested on suspicion and soon confessed to have thought up this scheme in an attempt to defame the airline and force its closure, taking the girl’s job with it. Thus, he became the first person to be prosecuted under the stringent new Anti-Hijacking Act 2016.

Was The Law Harsh?

It matters that Salla is no ignoramus. A B.Com Graduate from Sydenham College in Bombay, he separated from his father’s business in 2006 and initially traded in namkeen across Maharashtra. In 2008, he started a wholesale business in gold jewellery in Zaveri Bazaar. When you view him as a twice-married rake who hoodwinked at least two girls, he makes a poor subject for sympathy, in court or out. Still the question remains: is it quite just to send a dirty prankster to jail for his entire life and reduce him to penury for leaving an incredulous note in an airplane toilet?

A quick look at the law reveals no room for manoeuvre. Section 3 of the new anti-hijacking law provides that:
Whoever unlawfully and intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means, commits the offence of hijacking.

Some Context To The Law

We deal here with a situation where the crime itself is admitted by the accused. It does not hurt to remember that this law was set up for the Masood Azhars of this world and that’s the frame in which investigations occurs. In the real world, few people survive the interrogation methods employed by investigative agencies for very long which is probably a good thing because if the psychological stuff doesn’t work, things can get really nasty.

The offence thus triggered, Section 4 (b) provides that
Whoever commits the offence of hijacking shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and with fine and the movable and immovable property of such person shall also be liable to be confiscated. [Emphasis supplied]

It is immediately clear that in the terrorist-infested world we inhabit, the law prescribes three elements of punishment: life imprisonment, plus fine, plus the option of confiscation of property. The court had no discretion in the matter of the prison sentence and there was nothing to decide. The man had put himself between a bullet and a target and it wasn’t to be long before he figured out that he has put himself away for life.

Not All Well With The Fine

What of the fine? There is considerable room for judicial discretion here since the amount of the fine is nowhere provided in this law. Section 63 of the Indian Penal Code provides that:
Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive.
I can do no better in explaining this than quote the words of the Kerala High Court is Sebastian v State of Kerala [1992 SCC Online Ker 173]:
When the legislature has not fixed any upper limit for the quantum of fine in respect of a particular offence, court has the freedom to fix any amount but then the court must see that the fine imposed is not excessively high or repulsively low.  … Financial capacity of the accused, enormity of the offence, extent of damage caused to the victim of the offences etc. are relevant considerations in fixing up the amount.

In the Salla case, the court ordered that of the penalty collected, Rs 1 lakh each is to be paid to the three pilots, Rs 50,000 each to the eleven cabin crew and Rs 25,000 each to the 116 passengers. As a general proposition, I am all for levying fines. Indian criminal administration has altogether too much of sending people to jail at public cost and too little restitution of injury caused to the victim.

While sympathising with this decision, I do not see any attempt to compensate the airline. Landings and take offs cost money and the unavailability of the aircraft for the day materially impacts its balance sheet. Perhaps the court was not addressed on the importance of compensating Jet. Then again, who would particularly want to benefit a bunch of banks that ousted Jet’s management thus delivering the final death blow to an airline that otherwise could well have stayed afloat? Me neither.

The third element of the punishment — confiscation of property — leaves room for judicial discretion. The court has not applied this punishment at all, perhaps because at the end of the day, everybody and his senile uncle understands that what we have here is not a battle hardened hate spewing Pakistan trained terrorist from Afghanistan who has spread death and mayhem on our shores but a dim-witted clown from the innards of Bombay middle class society who has seen one Shah Rukh movie too many and can’t come to grip with his passions. Still, harsh laws do cause ridiculous collateral damage, and this is only one such.

 

Ranjeev C Dubey is managing partner of the Gurgaon-based corporate law firm N South. His bestselling expose’ of the real world of Indian courts "Legal Confidential", released in November 2015.
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