UAPA | ‘Preparatory Act To Terrorist Act Must Be Proximate To Intended Result’ : Madras High Court Grants Bail To PFI Members

The bench of Justice SS Sundar and Justice Sunder Mohan opined that the documents collected by the prosecution did not link any of the appellants directly to the offences alleged and hence the special court had erred in denying them bail.

“When the activities of appellants are seen with a jaundiced eye, probably, the respondents seems to believe appellants as activists of unlawful Organization. In the absence of any material connecting appellants to the ''vision document'', every serious accusations appears to be based on probabilities, by assumption. In other words, the opinion formed is without any direct evidence or proof,” the court said.

According to the complaint, the appellants had hatched a conspiracy to unleash terrorist acts against perceived anti-Islamic forces of other religions by deploying its 'hit squads', to attack, assault, maim and murder them with an intention to threaten the unity, integrity, security and sovereignty of India and with an intention to strike terror.

The appellants argued that the special court had rejected the bail application by merely saying that there was a prima facie case without any definite accusation against any of the accused persons or any material documents or evidence. It was further contended that the appellants were arrested merely for being members of an organization that was neither banned nor declared as an unlawful association at the time of arrest. The appellants also argued that the NIA could not directly register an FIR in the absence of a report from the State Government as per Section 6 (2) of the National Investigation Agency Act 2008.

The Additional Solicitor General, however, argued that there was evidence to show that PFI had indulged in several terrorist activities to fulfil their vision to bring Muslim rule to the country by 2047 by their planned terrorist activities. Pointing to the physical training activities carried out by the organisation, it was argued that the commission of a terrorist act or any act preparatory to the commission of a terrorist act would attract Section 18 of UAPA and therefore Section 43[D][5] of the Act could be invoked.

The court however observed that to bring an act within the meaning of preparatory, it should be proximate to the act which was intended to be committed. In the present case, though it was alleged that the organisation was conducting physical training to people and training them to throw bottles filled with water, when no petrol bombs were recovered there was no proximity with the preparation and the alleged act.

“In the instant case, it is the allegation of the prosecution that training was given by the accused to various persons to throw beer bottles filled with water and to aim at objects. From this, the prosecution draws an inference that this training was imparted only to make petrol bombs later and use those petrol bombs for achieving the object of the accused. It is not the case of the prosecution that the accused was found in possession of any petrol bombs, in which case, it may be a proximate act and may be a preparatory act for the commission of terrorist act. Therefore, in order to bring any act as preparatory act to commit terrorist act, as stated earlier, it must be proximate to the intended result,” the court observed.

The court also observed that except for the FIR, there was no material to show any possible involvement of the appellants in any unlawful activities. The court thus opined that the trial court was under the impression that mere allegation was sufficient to reject bail by invoking Section 43D (5) of the Act.

With respect to NIA suo moto taking up the case in the absence of a report from the State, the court observed that the registration of an FIR by an officer in charge of a Police Station was not a since quo non for the Central Government to direct investigation by the NIA. The court added that if FIR was to be made necessary for the Central government to direct investigation by the NIA, the words used in the section would become redundant.

However, since there were no materials to link the appellants, the court opined that the accusations were based on probabilities and assumptions. Thus, the court granted conditional bail to all the appellants.

Counsel for the Appellant: Mr.T.Mohan Senior Counsel for Mr.A.Raja Mohamed, Mr.I.Abdul Basith

Counsel for the Respondent: Mr.Ar.L.Sundaresan Additional Solicitor General assisted by Mr.R.Karthikeyan, Special Public Prosecutor [NIA cases]

Citation: 2023 LiveLaw (Mad) 329

Case Title: Barakathullah and Others v Union of India

Case No: CRLA.Nos.98, 114 & 116/2023