'Religious Terrorism Is Tragic And Dangerous': MP High Court Declines Bail To Alleged ISIS Follower For Conspiring To Attack Ordnance Factory

While declining bail to an alleged follower of the banned terrorist organisation ISIS, the Madhya Pradesh High Court held that religious terrorism is tragic and dangerous and therefore, court cannot express leniency to persons facing serious allegations of terrorism and unlawful activities.

The division bench of Justice Sushrut Arvind Dharmadhikari and Justice Anuradha Shukla observed, “Religious terrorism is a tragic and dangerous phenomenon that distorts the true teachings of faith and causes immense harm to individuals and societies. While the roots of religious terrorism are deep and complex, it is crucial to understand that no religion inherently supports violence or terror. This Court cannot express undue leniency to a person who is facing serious charge of terrorism and unlawful activities. The trial is also set at full motion and there is every possibility of trial being completed in its due course. Therefore, considering the overall facts and circumstances, at this stage, we are not inclined to grant bail to the appellant.”

The present criminal appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008 against the order of rejection of grant of bail to the appellant.

The appellant was arrested for commission of offence punishable under Sections 120-B (Punishment of criminal conspiracy), 153-A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence language, etc., and doing acts prejudicial to maintenance of harmony), 153-B (Imputation assertions prejudicial to national integration), 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code and Sections 13 (Punishment for unlawful activities), 17 (Punishment for raising funds for terrorist act), 18 (Punishment for conspiracy, etc), 20 (Punishment for being member of terrorist gang or organisation), 38 (Offence relating to membership of a terrorist organisation), 39 (Offence relating to support given to a terrorist organisation) and 40 (Offence of raising fund for a terrorist organisation) of Unlawful Activities (Prevention) Act, 1967.

The NIA through its investigation revealed that appellant and other co-accused persons followed videos of Zakir Naik, an Islamic Preacher, and also expressed interest towards Jihad. The appellant developed radicalized bent of mind and also prepared pamphlets similar to the flags of ISIS and Al- Qaeda and affixed one of the samples of pamphlets on the wall of nearby Ahle Hadees mosque in order to attract likeminded people.

The investigation further showed that the appellant and other co-accused persons conspired to attack Ordnance Factory, Jabalpur, to procure the weapons in large quantity in furtherance of their terror activity. They also decided to blast the Jabalpur Ordnance Factory, if they didn't succeed in capturing the Factory.

During the course of investigation, various audios/videos/PDFs of ISIS publications as well as incriminating handwriting diary, digital devices, literature, pamphlets, mobile phones were also seized from possession of the accused persons.

The counsel for the appellant submitted that the appellant has been falsely implicated in the case and that he has no criminal antecedents. It was stated that the material collected by the investigating agency prima facie does not constitute any offence against the appellant.

It was argued that no weapons were seized from the possession of the appellant. It was further submitted that while considering the bail application under Section 43(D)(5) of UAPA, the court is duty bound to apply its mind to examine the entire material available on record for the purpose of satisfying itself as to whether prima facie case is made out against the accused or not. It was contended that the Trial Court failed to consider the provisions of law in proper manner and that mere association with terrorist organization is not sufficient to attract Section 38 of UAPA and mere support to a terrorist organization is not sufficient to attract Section 39 of UAPA. The association and support have to be with an intention and in furtherance of the activities of the terrorist organization.

On the contrary, the NIA submitted that the offence committed by the appellant is serious in nature and against the integrity and peace of country. The prosecution said incriminating material viz. audio clips, video clips, objectionable literatures, pamphlets, handwritten documents were collected from the possession of all the accused persons including the appellant which showed his involvement in the alleged crime.

It was further submitted that Section 43 D(5) of UAPA imposes restrictions upon the Court in granting bail to accused person. Moreover, the statements of witnesses recorded under Sections 161 and 164 of Cr.P.C., clearly establish the complicity of present appellant in the alleged crime. The counsel contended that it is not necessary that every person involved in terrorist activities must have criminal antecedents and that the appellant was fully aware about the banned terrorist organization ISIS and its activities in India and worldwide.

The court after hearing the rival parties, referred to the judgements of apex court in Zahoor Ahmad Shah Watali (2019) and K.A.Najeeb Vs. Union of India (2021), explaining in detail the scope and interpretation of Section 43D(5) of UAPA.

Thereafter, the court perused the charge-sheet considering that the allegations levelled against the appellant were grave and a serious threat to societal harmony. After detailed perusal of the charge-sheet, the court observed, “…it is clear that there is sufficient material available in the charge-sheet showing that the appellant has actively participated in and has committed unlawful activities as defined in the UAPA. There is specific material to show that the appellant advocated, abetted, or incited commission of many unlawful activities.”

Referring to Section 15(1) of the UAPA which defines a 'terrorist act', the court said, “The material collected by the NIA shows that the present appellant was the active member of conspiracy by which, the accused persons were going to attack upon Ordnance Factory, Jabalpur, which is an entity of defence. We find sufficient material to show that there was conspiracy to commit a terrorist act to which the appellant was a party. The NIA produced sufficient material on record to show that the appellant was involved in the alleged terrorist acts and other preparatory activities. The accused persons were not only supporting the activities of terrorist organization but also they wanted to stand their own organization with the intention to ruin the Constitution of India.”

The court, thus, dismissed the present Criminal appeal and denied grant of bail to the appellant.

Case Title: Mohd. Shahid Khan Versus Union Of India, Criminal Appeal No. 7123 Of 2024

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