Kerala High Court Upholds Conviction Of Riyas Aboobakkar For Propagating ISIS Ideologies, Awards 8-Yr Rigorous Imprisonment

The Division Bench of Justice Raja Vijayaraghavan V and Justice Jobin Sebastian found that Riyas Aboobakkar propagated ISIS ideology and advocated war against non-Muslims. The Court modified the punishment imposed upon the appellant and reduced his imprisonment to 8 years of Rigorous Imprisonment instead of 10 years of Rigorous Imprisonment under Sections 38 and 39 of the UAPA, by considering various factors.

“It has also been established that the accused was a party to the criminal conspiracy to further the activities of the terrorist organization and to garner support by migrating to ISIS controlled territories. It has also been established that the accused had associated himself and had professed to be associated with ISIS, with intent to further its activities. Materials also clearly reveal that the accused with intent to further the activities of the proscribed organization had invited support and thereby committed the offence punishable under Section 120B of the IPC r/w. Sections 38 and 39 of the UA(P) Act and Sections 38 and 39 of the UA(P) Act.”

As per facts, the 2016 police investigation into several missing cases revealed that missing persons left India to join ISIS, a terrorist organization included under the UAPA. The Special Investigation Team found that two persons were involved with ISIS to transport persons to Afghanistan.

During the investigation of the main case, it was found that the appellant maintained contact with the main accused and others who joined ISIS. It is also alleged that the appellant was strongly influenced by the violent extremist ideology of ISIS and motivated others to join ISIS. It was found that the appellant conducted conspiracy meetings to carry out suicide attacks in Kerala to further the terrorist activities of ISIS.

The NIA Court framed charges and the Special Court found the appellant guilty and convicted him to ten years of rigorous imprisonment under Sections 38 and Section 39. An imprisonment of five years was also imposed under Section 120B of the IPC. The sentences were ordered to run concurrently. Aggrieved by the conviction, appeal was preferred.

The High Court observed that the NIA Court convicted the appellant based on evidence provided by two other accused individuals who had turned approvers and were granted pardon by the NIA Court.

Relying upon various Apex Court decisions, the Court stated that the approver's evidence could be subjected to two tests to assess its credibility, the first test is to show that the approver is a reliable witness and the second test is to that his evidence must receive sufficient corroboration. Considering the evidence put forth by the approvers, the Court found that there was evidence that they were being tried to be radicalized by the appellant and that it is credible.

It said, “Having evaluated the evidence of PWs 1 and 2, we find that both of them were young men, who were persuaded by the inflammatory messages, voice clips, and videos forwarded to them by the appellant. Their version before the Court is sufficiently corroborated by the Call Data Records and digital evidence. We are of the view that the contentions advanced by the learned counsel appearing for the appellant is that they are unreliable and no reliance can be placed on the same cannot be accepted.”

Regarding the digital evidence, the Court observed that the mere delay in the production of the certificate under Section 65B of the Indian Evidence Act has caused prejudice to the appellant.

The Court further stated that there is sufficient evidence including call data records etc., to prove that the appellant organized conspiracy meetings to plan terrorist attacks and suicide bombings.

The Court noted that there is digital evidence and statements of witnesses to prove that the appellant supported ISIS and looked down on Muslims who accepted democratic principles.

The Court further stated that data in Gmail, Facebook, YouTube, Google and his mobile data also proves that the appellant supported ISIS and persuaded others to join ISIS to commit terrorist activities. It noted that there was evidence that the appellant chatted with other ISIS leaders who carry suicide bombings. It noted that there is evidence that the accused liked and shared images, videos and content supporting ISIS.

The Court thus concluded, “He posted ISIS-related content on Facebook, shared videos of Abdul Rashid Abdulla and Abdul Khayoom, and disseminated links to ISIS Telegram channels. Organized and addressed conspiracy meetings with PW1 and PW2 near Lulu Mall and Marine Drive on 26.10.2018. Discussed Hijra (migration) to ISIS-controlled regions and the furtherance of ISIS activities with PW1 and PW2. Intended to perform Hijra to wage war against nations allied with India. Planned and encouraged suicide attacks in India for which purpose he instigated PW1 and PW2….”

On examining Section 38 of the UAPA, the Court stated that a person who associates themselves with a terrorist organization, or claims or professes to be associated with such an organization can be held liable. It noted that mere membership without intention to promote the organisation was not sufficient to attract liability.

The Court stated that a person supporting a terrorist organization with the intent to further its activities could be held liable under Section 39 of the UAPA. It observed that the provision was enacted to prevent terrorism by criminalising even indirect participation like organizing meetings or addressing gatherings to support terrorist activities.

Court added, “In that view of the matter, going by the principles laid down by the Apex Court above in the light of the proven facts, mere proof of an agreement between the accused for the commission of the objectionable acts under Sections 38 and 39 would be enough to bring about a conviction under Section 120B of the IPC r/w. Sections 38 and 39 of the UA(P) Act and the proof of any overt act by the accused or by any one of them would not be necessary.”

The Court observed that the Special Court granted maximum punishment to the appellant on finding that he was strongly radicalized and was spreading ISIS ideology through social media platforms.

The Court referred to a decision rendered by the Delhi High Court in Sadiya Anwar Shaikh v. National Investigation Agency (2024) to state that no guidelines have been framed in India at a policy level regarding the sentencing of accused persons found guilty of terrorism-related offences.

The Court reduced the imprisonment taking note that the appellant was only 29 years old at the time of the commission of the offences and that he was not involved in any other crimes. It noted that his actions were motivated by religious ideologies and that his activity was limited and extended to a large number of persons. It also noted that similar accused persons were granted less punishment as compared to the appellant and also noted his prospects of rehabilitation, motive and conduct during the trial while reducing the punishment.

Case Number: CRL.A NO. 783 OF 2024

Case Title: Riyas A @ Riyas Aboobakkar @ Abu Dujana v Union of India

Citation: 2024 LiveLaw (Ker) 790