Supreme Court Refuses Bail To A Lawyer In UAPA Case For Alleged Link With ISIS, Describes The Allegations As "Serious"
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Describing the allegations as "serious", the Supreme Court on Wednesday refused to grant bail to a lawyer arrested under the UAPA in 2017 in Gujarat for allegedly discussing, advocating, disseminating ISIS ideology on social media, recruiting persons, and generating funds for the organization.However, the Court directed that the trial court hold hearings twice a week and complete the trial...
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Describing the allegations as "serious", the Supreme Court on Wednesday refused to grant bail to a lawyer arrested under the UAPA in 2017 in Gujarat for allegedly discussing, advocating, disseminating ISIS ideology on social media, recruiting persons, and generating funds for the organization.
However, the Court directed that the trial court hold hearings twice a week and complete the trial in precisely 1 year.
The bench of Chief Justice N. V. Ramana and Justices Surya Kant and Hima Kohli was hearing an SLP against a February 2020 order of the Gujarat High Court dismissing his bail petition in connection with an FIR for offenses under Sections 13, 17, 18, 38, and 39 of the UAPA and under Sections 120(B), 121(A) and 125 of the IPC. As recorded in the impugned order of the High Court, the allegations against the SLP petitioner and the co-accused are as follows-
"Through human and technical resources of the ATS, it came to their knowledge that the applicant was radicalized by the philosophy of IS/ISIS by Safi Armar @ Al Hindi of Syria/Iraq and Abdullah Al Faizal of Jamaica. The applicant was discussing, advocating, disseminating ISIS ideology on social media or sharing social media links that supported ISIS ideology and talking about it to a few of his friends including original accused No.1 Kasim. The applicant in some intercepted mobile/What's App communications talked about his wish/desire to buy a pistol, if available in a reasonable price, about the possible generation of fund through smuggling of cigarettes, gold or old cars. Original accused No.1 was planning to carry out a lone wolf attack at Synagogue in Ahmedabad. The accused persons tried to support four youths from Hyderabad to cross Bangladesh border but they were caught in the year 2014 at Calcutta. Therefore, the FIR is lodged against the applicant and other accused person named in the FIR"
On Wednesday, Senior Advocate Siddharth Dave, for the petitioner, told the bench,
"I am an advocate practicing in Surat. I have been charged with the UAPA on an allegation that I was recruiting persons for ISIS for money. And this only on the basis of some posts on Facebook and messages on WhatsApp! I have never been to Syria! Not even a rupee has been found from me!"
"We are not on the question of UAPA. It is not that bail cannot be granted to you because you are booked under the UAPA. But the nature of allegations against you is very serious. There is evidence against you that you have acted as an ISIS agent, some of your chats on WhatsApp seem to be about killing persons of other religions. We have to presume that there is no reason to discard this evidence at this stage", Bench responded.
"I have been in jail for 4 years now! The charges have not been framed! And it is not like the trial will be concluded anytime soon. I cannot be kept behind bars indefinitely! It is a grave violation of my fundamental right as an undertrial!", pressed Mr. Dave.
The bench asked SG Tushar Mehta, for the Gujarat state ATS, about the reasons for the delay in trial. Mr. Mehta responded that the delay was attributable to the act of the accused persons in challenging every single order passed by the trial court. The SG also cited allegations of the SLP petitioner's alleged link with ISIS.
The bench then proceeded to pass its order-
"Having heard learned Senior counsel appearing for the petitioner, learned Solicitor General appearing for the State of Gujarat and carefully perusing the material available on record, we are not inclined to grant bail to the petitioner"
However, taking into consideration the fact that the petitioner is reported to be in custody since October 25, 2017 and long pendency of trial, the bench directed "the concerned Trial Court to expedite the trial and conclude the same within a period of one year from the date of communication of a copy of this Order, by sitting two days in a week, without granting unnecessary adjournments to either of the parties"
In the impugned order, the High Court had held, "...there is ample material in the investigation papers against the present applicant, from which, it can be prima facie said that the applicant has committed the alleged offences and, therefore, the prosecution has made out a primafacie case against the applicant. The contention raised by the learned Senior Advocate appearing for the applicant that the ingredients of the alleged offences are not made out, cannot be believed looking to the material available in the investigation papers. This Court has also considered the punishment prescribed for the alleged offences and the provisions contained in Section 43D of the Act. At this stage, this Court would like to refer to the provisions contained in Section 43D(5) of the Act, which provides as under: (...). From the reports/chargesheet papers filed against the applicant, this Court is of the opinion that there are reasonable grounds for believing that the accusation against the applicant is prima facie true and, therefore, looking to the proviso contained in the aforesaid subsection, the applicant cannot be enlarged on bail pending trial. Another contention is raised by the learned Senior Advocate appearing for the applicant that there is a delay in commencing the trial. However, from the material placed on record and from the submissions canvassed by the learned Public Prosecutor, it is revealed that the so-called delay in commencing the trial cannot be attributed to the State or to the concerned trial Court. Learned Senior Advocate appearing for the applicant has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Shreya Singhal Vs. Union of India (supra) wherein the Hon'ble Supreme Court has held that discussion and advocacy of any idea, philosophy per se cannot constitute an offence and that, to ascertain whether any discussion or advocacy has assumed the nature of incitement, the Court is required to apply 'the clear and Present Danger test'."
"Keeping in view the aforesaid decision rendered by the Hon'ble Supreme Court, if the facts of the present case as discussed hereinabove are carefully examined, it is revealed that the aforesaid decision would not render any assistance to the present applicant. In view of the aforesaid discussion, this Court is of the view that the respondent State has made out a primafacie case against the applicant. Serious allegations are levelled against the applicant and there is sufficient material against the applicant in the investigation papers and, therefore, as per the provisions contained in Section 43D(5), the applicant cannot be enlarged on bail. This Court has also considered the punishment prescribed for the alleged offences and the respondent State has shown apprehension that if the applicant is enlarged on bail, there are all chances that he will tamper with the evidence and would not be available at the time of trial. Thus, in the facts and circumstances of the present case, this Court is not inclined to exercise discretion in favour of the applicant. The application is accordingly dismissed"