Whether Killing Of Hindu Religious Leaders Would Itself Constitute A Terrorist Act Is Debatable: Madras High Court

The bench of Justice SS Sundar and Justice Sunder Mohan noted that as per Section 15 of the UAPA, the act must have been done with an intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. In the present case, the court noted that there was no evidence to conclude that there was a conspiracy to commit a terrorist act.

“The question as to whether the killing of Hindu religious leaders by itself can constitute a terrorist act is debatable. However, considering the broad probabilities of the case from the materials collected by the prosecution, one cannot definitely conclude that there was a conspiracy to commit a terrorist act, though there is a conspiracy to commit other illegal acts including serious offences,” the court observed.

The court also made it clear that the observations were considering the broad possibilities of the case and for the purpose of considering bail application only.

The court was hearing an appeal preferred by one Asif Musthaheen against an order denying him bail. The case against Asif was that he was a staunch supporter of Islam Rule in India and the terrorist Osama-bin-laden and had been following the ideology of the terrorist organisation Al-Qaeda.

It was also alleged that Asif was in close contact with the co-accused who was a member of ISIS and had even intended to murder the members of the Hindu Organisations.

Asif had submitted that he had been in custody since July 2022 and that the nature of the allegations did not warrant a prolonged indefinite pre-trial detention. It was also submitted that the authorities had not recovered any incriminating evidence except the mobile phone. It was further submitted that even if the allegations against Asif were assumed to be true, it would not constitute the alleged offences.

Asif also contended that the authorities had violated Rule 3 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 according to which the recommendation for prosecution by authority should be within seven working days of the receipt of the evidence gathered by the investigating officer under the Code.

It was alleged that in the present case, there was a delay of 60 days and the continued detention would violate his rights under Article 21 of the Constitution as the sanction itself was vitiated.

The Additional Public Prosecutor on the other hand opposed the bail plea by bringing to the court's attention an earlier order of the Supreme Court dismissing bail and observing that a prima facie case had been made out.

The court noted that the evidence adduced by the prosecution did not prove that the co-accused was an ISIS member and even assuming him to be an ISIS member, Asif had only intended to be close to the co-accused. The court added that proximity to an individual was different from associating oneself with the terrorist organization to further its activities.

Further, the court noted that though there was an allegation about conspiracy to commit terrorist acts against Hindu religious leaders belonging to BJP and RSS, the prosecution had not shown how it would amount to a terrorist act as defined under Section 15 of the UAPA.

With respect to the violation of the rules, the court noted that it was not known on which date the recommending authority had received evidence gathered by the investigating officer. The court further noted that in any event, the non-compliance of the mandatory provision would certainly be one of the grounds to hold that the right of the accused to a speedy trial under Article 21 of the Constitution was violated, and thus, the bail application could be considered, notwithstanding the restrictions under Section 43-D(5) of the UAPA.

Thus, noting that the detention pending trial could not be indefinite, the court opined that Asif could be granted bail upon certain conditions.

Counsel for Appellant: Mr.T.Mohan, Sr. Counsel for Mr.S.Veeraraghavan

Counsel for the Respondent: Mr.A.Gokulakrishnan Additional Public Prosecutor

Citation: 2023 LiveLaw (Mad) 391

Case Title: Asif Musthaheen v State, Criminal Appeal No.542 of 2023