Individual Not Greater Than Country, Personal Liberty Subservient To National Interest: Karnataka HC Denies Bail To Alleged ISIS Operative

The Karnataka High Court has observed that whenever national interest is involved or a challenge is posed to unity, sovereignty and integrity of the nation, individual liberty recedes to background, as an individual is not greater than the Nation where he has taken birth.

A division bench of Justice Sreenivas Harish Kumar and Justice J M Khazi made the observation while rejecting the bail petition filed by accused Arafath Ali @ Arafath, who is charged under provisions of the Unlawful Activities (Prevention) Act and IPC, for allegedly radicalising the youth and promoting the ideology of Islamic State (ISIS).

The bench rejected the contention raised by the accused regarding applicability of Article 21 of the Constitution of India. It said,

“Article 21 concerns the liberty of an individual. What Article 21 states is that personal liberty of a person cannot be curtailed without due process of law. Its meaning has been expanded, and no doubt a greater amount of sanctity is attached to it. But whenever national interest is involved or a challenge is posed to unity, sovereignty and integrity of the nation, individual liberty recedes to background.”

It added “An accused can enforce liberty under Article 21 if he is arrested without due process of law. If criminal action is found to be in accordance with due procedure established by law, an application for bail has to be decided by applying law relating to bail, not by applying Article 21.”

A case was registered in connection with stabbing a youth by name Prem Singh at Shivamogga City, in 2022. Considering the gravity of the offence, the Government of India passed an order on 14.11.2022 directing investigation to be undertaken by the National Investigation Agency. During investigation the role of the appellant, i.e., accused No.10 also surfaced but he could not be arrested as he was abroad.

The NIA arrested him on 14.09.2023 and permission for further investigation was obtained. Later a supplementary charge sheet was filed for the offences under sections 120B, 121A, 153A and 204 of IPC and sections 13, 17, 18, 18B, 20, 38, 39 and 40 of UAPA. The accused applied for bail before the Special Court which by its order dated 02.02.2024 dismissed his application.

The NIA court while rejecting the bail application referred to a witness statement disclosing the appellant's role in radicalising the youth of his locality.

The appellant contended that there was no recovery from him, investigation does not reveal that he is a member of any banned organisation, and even his voluntary statement was not recorded. It was further argued that there is nothing on record indicating the manner of his participation in the alleged conspiracy. The prosecution heavily relies on statements of accomplices, which are inadmissible, it was argued.

NIA opposed the plea saying that the name of appellant figures in two charge sheets and it is not as though the role of appellant was projected after further investigation was undertaken against him. It further contended that even though appellant was abroad, it does not mean that he was not involved during that time; Section 1(4) of the Act states that an offence committed outside India can also be prosecuted.

The bench on going through the records said, “Protected witness B implicates the appellant stating that he was sought to be influenced by the appellant and another to establish a caliphate in India, which was the basic ideology of Islamic State (ISIS). This protected witness has given a lengthy account of all the activities of the appellant. The said witness has also given a statement before the Magistrate under section 164 of Cr.P.C.”

Referring to statements of other witnesses the court held, “It is not always necessary to obtain a confession statement of an accused to implicate him. It is also not necessary that there must be recovery from an accused under section 27 of the Indian Evidence Act. These are not sine qua non. Whether to record a confession statement or not depends on the circumstances of each case.”

It added, “If the materials against appellant are put to analysis, it can be said that accusations against him will remain till they are contradicted or disproved by other evidence. This satisfaction can be drawn by gleaning over the prosecution materials. Therefore the bar contained in section 43D(5) of UA(P)A becomes applicable.”

Accordingly it dismissed the appeal.

Appearance: Advocate S.Balakrishnan for Appellant.

Advocate C.Sachin, for Prasanna Kumar P, Spl.PP for Respondent.

Citation No: 2024 LiveLaw (Kar) 421

Case Title: Arafath Ali @ Arafath AND National Investigation Agency

Case No: CRIMINAL APPEAL NO. 704 OF 2024

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