No Room For Sympathy While Sentencing Terror Convicts: SC Restores 7 Yrs Imprisonment For Woman Convicted For Propagating ISIS Ideology [Read Judgment]

The bench comprising Justice Uday Umesh Lalit and Justice Indu Malhotra, however, upheld her acquittal from the offences under Section 125 of the Indian Penal Code. The High Court observation that supporting the ideology of Islamic State of Iraq and Syria (ISIS) will not amount to waging war against Government of an Asiatic power in alliance with India, was also upheld.

The bench also dismissed the appeals filed by Yasmeen challenging her conviction and sentence under Section 120B IPC and Section 38 of the the Unlawful Activities (Prevention) Act, 1967, and that filed by the Union of India against the acquittal of Yasmeen in respect of offences under Section 125 of the IPC and Sections 39 and 40 of the UAPA. The Court said:

Coming to Sections 39 and 40 of the UAPA, these provisions require certain elements in respect of which there is no material evidence on record. For Section 39 of the UAPA to get attracted, support to a terrorist organisation must be within the meaning of either of three clauses viz clauses (a), (b) and (c) of sub Section (1). Similarly, Section 40 requires certain elements on satisfaction of which a person can be said to be guilty of raising funds for a terrorist organisation. None of those features are established as against A2-Yasmeen. The acquittal in respect of charges under Sections 39 and 40 was therefore rightly recorded by the High Court."

Section 38 of UAPA defines the offence relating to membership of a terrorist organisation, Section 38 with offence relating to support given to a terrorist organisation and Section 40 with offence of raising fund for a terrorist organisation. The court observed: 

"We must however state that the High Court was not right in observing "if a person is punishable under Section 38, Section 39 becomes superfluous". In our view, the scope of these two Sections and their fields of operation are different. One deals with association with a terrorist organisation with intention to further its activities while the other deals with garnering support for the terrorist organisation, not restricted to provide money; or assisting in arranging or managing meetings; or addressing a meeting for encouraging support for the terrorist organisation."

While dismissing the appeal filed by Union of India, the bench observed:

"As regards the offence under Section 125 of the IPC, the matter was rightly appreciated by the High Court and we are in complete agreement with the view taken by the High Court. Coming to Sections 39 and 40 of the UAPA, these provisions require certain elements in respect of which there is no material evidence on record. For Section 39 of the UAPA to get attracted, support to a terrorist organisation must be within the meaning of either of three clauses viz clauses (a), (b) and (c) of sub Section (1). Similarly, Section 40 requires certain elements on satisfaction of which a person can be said to be guilty of raising funds for a terrorist organisation. None of those features are established as against A2-Yasmeen. The acquittal in respect of charges under Sections 39 and 40 was therefore rightly recorded by the High Court."

However, it allowed the Centre's appeal against reduction of sentence by the High Court. Restoring the sentence of 7 years imprisonment awarded by the NIA Court, the bench said:

"The only ground that weighed with the High Court while reducing the sentence was sympathy. The material on record indicates the role played by A2-Yasmeen. Even at the time of her arrest, while leaving for Afghanistan, certain objectionable material was found on her person. The intensity of her participation and involvement were clearly made out. In the circumstances, there was no room for invoking sympathetic considerations. The quantum of sentence imposed by the trial court was absolutely correct and adequate."

While affirming the conviction Section 120B IPC and Section 38 of the UAPA, the bench further observed:

The evidence on record, as culled out by the High Court in the observations quoted hereinabove establishes that A1 was propagating the ideology of IS and advocating, among other things, war against non-Muslims; that the classes were attended by A2-Yasmeen; that the videos relating to such speeches were found on her person when she was arrested; and that she was attempting to go to Afghanistan at the instance of A1. These features definitely point the existence of mens-rea.

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