Delhi HC Grants Bail To Proofreader Of 'Islamic Movement' Magazine Published By Banned Organisation SIMI, Finds No Specific Act Of 'Incitement'

A magazine published by SIMI named the 'Islamic Movement' was seized during the police raid conducted at SIMI headquarters. It is alleged that the magazine is inflammatory and provocative in nature and that the accused was a part of its Editorial Board.

A single judge bench of Justice Manoj Kumar Ohri observed that the only accusation against the accused/applicant in the FIR seems to be that he was on the editorial board of 'Islamic Movement' magazine.

It referred to the Supreme Court case of Javed Ahmad Hajam v. State of Maharashtra, 2024, where the Court observed that to attract Section 153A IPC, the prosecution needs to prima facie establish the existence of mens rea of accused to promote feelings of enmity or hatred between different classes of people. It was held that the effect of words in a magazine or book must be judged from the standards of 'reasonable, strong-minded person and not weak and vacillating minds.'

Here, the High Court noted that the applicant's role was to help publish their magazine in the capacity of a proofreader, not even as an author. It remarked “As per initial statements of police witnesses, no specific act of incitement has been pointed out qua the applicant which led to the registration of the original FIR. Further, the role of applicant was to help in the publication of their magazine and that too not in the capacity of an author, but rather as a proof-reader.”

The accused/applicant was charged for being a member of unlawful association and for unlawful activities under Sections 3, 10, 13 of UAPA as well as Section 153A IPC (promoting enmity between different groups) and Section 153B IPC (makes or publishes assertions likely to cause disharmony or feelings of enmity between different classes of people). The applicant was declared as a Proclaimed Offender on 7 March, 2002.

The Student Islamic Movement of India (SIMI) was declared as an unlawful organization under the UAPA on 27 September, 2001 and on the intervening night of 27-28 September, the police raided SIMI headquarters.

The applicant contended that he was not present at the spot when the police was conducting the raid. He argued that his arrest is a case of mistaken identity and that the name of the accused was not the same as his. He contended that it is not the case of mere typographical error but rather that of a different accused. Further, he contended that instead of serving notice of proclamation to where he usually resides, it was sent to the head office of SIMI.

On the other hand, the State contended that the applicant was an active member of SIMI. It was stated that the police raid was conducted after receiving secret information regarding anti-national speeches being given at SIMI headquarters and that the applicant managed to escape.

The High Court noted that when the co-accused were apprehended on the night of 27-28 September, 2001, the FIR did not mention the name of the applicant being present at the spot or of him absconding from there.

It noted that a witness statement named the applicant only 22 days after the FIR was registered.

On the issue of the service of notice of proclamation, it referred to the case of Sunil Tyagi v. Govt of NCT of Delhi & Anr., 2021, where a division bench of the Delhi High Court had observed that for the service of notice of proclamation for a person absconding under Section 82 CrPC, three modes of publication are essential. The three modes of publication are public reading in some conspicuous place where the person ordinarily resides, affixation at some conspicuous part of the house and affixation at some conspicuous part of the court house.

Referring to this case, it observed “Thus, it is seen that failure to comply with even one of the three modes of publication would render the whole exercise futile.” On the applicant being a declared proclaimed offender, it observed that statement of the Process Server indicates that the server went to the Head Office of SIMI and that the office did not belong to the applicant, making the process unexecuted.

Furthermore, with respect to his 'mistaken identity', it noted that the trial court should look into it and that it cannot consider the aspect during the bail stage.

Thus, considering the overall facts and circumstances of the case, the Court granted bail to the accused on condition that he furnishes a personal bond of Rs. 50,000 and with one surety.

Case title: MOHAMMAD HANEEF MOHAMMAD ISHAQUE vs. STATE OF NCT DELHI (BAIL APPLN. 2385/2024)