Merely Attending 'Jihadi' Meetings Of An Organization Which Is Not Banned By Govt Prima Facie Not 'Terrorist Act' Under UAPA: Karnataka High Court

A division bench of Justice B Veerappa and Justice S. Rachaiah said,

"Mere attending meetings and becoming Member of Al-Hind Group, which is not a banned organization as contemplated under the Schedule of UA(P) Act and attending jihadi meetings, purchasing training materials and organizing shelters for co-members is not an offence as contemplated under the provisions of section 2(k) or section 2(m) of UA(P) Act."

Meanwhile the bench refused bail to another applicant Mohd. Zaid. It said, "The chargesheet filed against accused No.20 clearly depicts his active participation in the offence as a Member of terrorist gang and conspiracy with other accused persons for criminal act and violent acts thereby he was in contact with other accused persons including Mehboob Pasha – accused No.1 for contacting unknown ISIS handler through dark web, thereby accused No.20 is not entitled to the discretionary relief of bail."

Case Background:

On January 10, 2020 based on information given by the CCB police to the Suddaguntepalya Police Station, Mico Layout Sub-Division, FIR came to be registered by the said Police against 17 accused persons, including the present appellants, under the provisions of sections 153A, 121A, 120B, 122, 123, 124A, 125 of IPC and sections 13, 18 and 20 of UA(P) Act.

On January 23, 2020, the National Investigation Agency re-registered the FIR against 17 persons. Khan was arrested on 20.01.2020 and accused No.20 (Zaid) was secured under body warrant on 09.03.2020 and after investigation, Investigation Officer filed chargesheet on 13.07.2020 against the present appellants / accused Nos.11 and 20, under the provisions of section 120B of IPC, sections 25(1B)(a) of Arms Act and sections 18, 18A, 18B, 19, 20, 38 and 39 of the UA(P) Act against accused No.11 and under the provisions of section 120B 16 of IPC, sections 18, 20 and 39 of the UA(P) Act against accused No.20.

On the Special NIA court rejecting their bail applications by order dated December 29, 2020, the accused approached the high court in appeal.

Petitioners submissions.

Advocate S.Balakrishnan contended that both the accused Nos.11 and 20 are the members of Al-Hind group, which is not a banned terrorist organization, as contemplated under Schedule I of the UA(P) Act. He added that during the period shown in the FIR, i.e., for a period of six months from 01.07.2019 to 10.01.2020, no incident has taken place during the said period involving accused Nos.11, 18, 19, 20, 21, 49 and 50.

It was also said that the accused persons are not members of ISIS, their stand is indicated by the fact that the prosecution has failed to produce any iota of material to prove their stand in any organisation. To attract the provisions of section 18 of UA(P) Act, there must be some material abetting, advising, inciting, directing any one to do a terrorist act. In the present case, the prosecution has failed to prove anything on record against the accused persons.

It was also said that under the provisions of section 20 of the UA(P) Act, punishment for being member of terrorist gang or organization as contemplated under sections 2(1)(l) and 2(1)(m) of UA(P) Act, none of the provisions are applicable to these accused persons and the present appellants are not linked and cannot be linked to any organization as defined either under sections 2(1)(l) and 2(1)(m) of UA(P) Act.

NIA opposed the plea:

Special Public Prosecutor P Prasanna Kumar submitted that the chargesheet which depicts that the accused Nos.11 and 20 had attended several conspiracy meetings with accused Nos.1 and 2, it is thereby the accused are involved in the offences made out against them in the chargesheet filed.

Court Findings in the case of accused Saleem Khan:

The bench observed,

"Section 18A deals with imparting training in terrorism and section 20 deals with punishment for being member of terrorist gang or organization. In the present case, the prosecution has not produced any material, as could be seen on examination of the chargesheet, against accused No.11 about his involvement in terrorist act or being member of terrorist gang or organization or training terrorism."

Further it said, "Admittedly, Al-Hind Group is not a terrorist organization as contemplated under section 39 of the UA(P) Act, thereby the prosecution has failed to prove the prima facie case for rejection of bail against accused No.11. Therefore, the trial Court is not justified in rejecting the bail application filed by accused No.11."

The court then said that in view of the provision of section 43D of the UA(P) Act, it is necessary to strike a balance between the mandate under Section 43D on the one hand and the rights of the accused on the other.

It added, "To decide as to whether the accusation in such cases is prima facie true, the court went on to enumerate five circumstances which would provide adequate guidance for the Court to form an opinion.

Following which it said,

"In the present case, the prosecution has not proved that accused No.11 has associated himself with any organisation which is prohibited or barred under the provisions of the UA(P) Act. Admittedly, he is a Member of Al-Hind Group. It is not a prohibited organization under the Schedule of the UA(P) Act, 1967 and the chargesheet material does not depict that he was convicted for the offences involved or crimes or terrorist activities and the prosecution has also not proved whether the accused has used any explosive material of the category used in the commission of the crime or recovered from him nor the chargesheet depicts any eyewitness or mechanical device such as CCTV, camera indicating the involvement of accused No.11, let alone scene of occurrence as shown in the chargesheet. On careful examination of the material forming part of the chargesheet, there are no reasonable grounds for believing the accusation against the accused No.11 prima facie true."

Accordingly it held, "In the absence of any prima facie case, restrictions imposed by sub-section (5) of section 43-D per se do not prevent a Constitutional Court from granting bail on the grounds of violation of part III of the Constitution."

To fortify its view the bench relied on the Supreme Court judgement in the case Thwaha Fasal vs. Union of India.

The court thus directed him to be released on bail, subject to executing a bond of Rs.2,00,000/- (Rupees Two Lakh only), with two solvent sureties for the likesum, to the satisfaction of the Special Court. It also imposed few other conditions to abide by.

Court Findings in case of Accused Mohammed Zaid

The bench on going through the material forming part of the chargesheet noted, "He is associated with accused No.1 for contacting unknown ISIS handlers through Dark Web. (ISIS is a banned organisation as contemplated under the Schedule of UA(P) Act."

It added, "Accused No.20 was part of the terror group and was involved in furthering the activities of ISIS in India and assisted Mehboob Pasha – accused No.1 in communicating with the ISIS handler through dark web and thus, committed offences punishable under section 120B of IPC and sections 18, 20 and 39 of the UA(P) Act."

The court took into account that Zaid has also been named as an accused in a chargesheet filed by NIA in Delhi in a case under 120B read with sections 465 and 471 of IPC, section 25(1A) of Arms Act besides sections 17, 18 and 39 of UA(P) Act.

Following which the court observed, "The Court, while examining the issue of prima facie case as required by sub-section (5) of section 43-D of UA(P) Act, is not expected to hold a mini trial and the Court is not supposed to examine the merits and demerits of the evidence. If a chargesheet is already filed, the Court has to examine the material forming a part of the chargesheet for deciding the issue whether there are reasonable grounds for believing that the accusation against accused No.20 is prima facie true."

Accordingly it held, "The chargesheet filed against accused No.20 clearly depicts his active participation in the offence as a Member of terrorist gang and conspiracy with other accused persons for criminal act and violent acts thereby he was in contact with other accused persons including Mehboob Pasha – accused No.1 for contacting unknown ISIS handler through dark web, thereby accused No.20 is not entitled to the discretionary relief of bail under section 439 of Cr.P.C. The trial Court is justified in rejecting the bail application of accused No.20."

Case Title: SALEEM KHAN v STATE OF KARNATAKA

Case No: CRIMINAL APPEAL No. 130/2021

Citation: 2022 LiveLaw (Kar) 137

Date of Order: 21ST DAY OF APRIL, 2022

Appearance: Advocate S. BALAKRISHNAN for appellants; Special Public Prosecutor PRASANNA KUMAR for respondent