UAPA | Individuals Not Members Of Any Terrorist Organization Can Also Be Prosecuted For 'Terrorist Act': Karnataka High Court

A division bench of Justice K Somashekhar and Justice Shivashankar Amarannavar observed,

"An individual can be prosecuted for terrorist act defined under Section 15 of the UAP Act and it is not necessary that to prosecute any person under the UPA Act he should be a member of a terrorist organization. Being a member of a terrorist gang or organization which is involved in terrorist Act itself is an offence under Section 20 of the UAP Act."

The court made this observation while rejecting the appeal filed by accused Irfan Pasha and Mohammed Mujeeb Ulla against the order of special NIA court, rejecting their bail application.

Case Details:

The accused were booked for murder of a RSS worker with intention to create terror in the minds of all members of RSS. The National Investigation Agency, after conducting investigation had filed a charge sheet against them under Sections 120B, 109, 150, 153- A, 302, 201 read with Section 34 of IPC, Sections 3 and 27 5 of the Arms Act and Sections 15, 16,17, 18 and 20 of UAPA.

The Petitioners herein contended that though they were alleged to be members of PFI, it is not a banned organization under UAPA and thus the provisions of the said Act cannot be applied.

They further argued that the it was not the case of prosecution that the deceased was in RSS uniform at the time of incident, to establish a targeted killing.

The NIA opposed the appeal, stating that Section 43-D of the UAP Act creates a bar on grant of bail and the very purpose of introducing Section 43-D of the UAP Act was to take note of the gravity of the offence that become triable under the provisions of the said Act.

It was also contended that under Sections 16, 18 and 20 of the UAP Act any individual who commits terrorist act can be prosecuted for the said offence and it is not necessary that he should be a member of any banned organization which is mentioned in first schedule of UAP Act as terrorist organization.

Findings:

The bench noted it is clear that after filing the charge sheet under Section 173 of Cr.P.C. the Court has to consider the material on record and ascertain whether there are reasonable grounds for believing that the accusations against the accused persons is prima facie true and if it is not, then the Court can exercise its discretion and also there is a rider that the burden is high on the accused in terms of the proviso contained in Section 43-D(5) of the UAP Act to demonstrate that the prosecution has not been able to show that there exists reasonable grounds to show that the accusations against them is prima facie true.

Then the court referred to the Supreme Court order rejecting the discharge application filed by accused 5, wherein it noted that there were phone calls between accused No. 5 and other accused persons.

Dismissing the contention of the appellants that even though the appellants were considered to be the members of PFI, it is not a terrorist organization enumerated in the first schedule of UPA Act and therefore they are not members of any terrorist organization and they cannot be prosecuted under the UPA Act.

The bench referring to the provisions of the Act said,

"What is `terrorist act' has been enumerated in Section 15 of the UPA Act and the punishment for terrorist act is provided under Section 16 of the UPA Act. The said provision commences with the words `whoever'. The dictionary meaning of `whoever' is `anyone or everyone'. Any person who is a member of terrorist organization contained in the Section 20 has not been used in the definition of terrorist act (Section 15) or in the offence of conspiracy punishable under Section 18 of UPA Act."

It added, "Therefore, an individual can be prosecuted for terrorist act defined under Section 15 of the UPA Act and it is not necessary that to prosecute any person under the UPA Act he should be a member of a terrorist organization."

Further the bench opined, "There was no animosity between accused Nos. 1 to 5 and deceased Sri. Rudresh. The alleged act of murdering the deceased Sri. Rudresh has been committed with an intention to create terror in the mind of members of RSS. As per the prosecution case the motive for the murder of deceased Sri. Rudresh who is a member of RSS is to create terror in the mind of members of RSS."

It then held,

"Considering all the charge sheet material the trial Court rightly came to the conclusion that there is a prima facie case against the accused persons to show their involvement in the crime. Therefore, as per the provisions contained under Section 43(D)(5) of the UAP Act the accused persons facing charge under the provisions of the said Act are not entitled for bail unless the Court comes to the conclusion that there is no prima facie case against them."

Finally it said, "Perusal of the material on record discloses that there is sufficient material against appellants/accused Nos.1 and 4. Prima facie case exists against accused Nos. 1 and 4. Hence, there is no merit in this appeal. There are no grounds to set aside the impugned order dated 21.04.2021 passed in Spl.C.C. No. 181/2017 on the file of XLIX Additional City Civil and Sessions Judge and Special Court for NIA Cases, Bengaluru whereunder the bail application of the appellants/accused Nos. 1 and 4 came to be rejected. There are no grounds to grant bail to appellants/accused Nos. 1 and 4."

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

Case Title: Irfan Pasha v. National Investigation Agency

Case No: CRIMINAL APPEAL No. 673/2021

Citation: 2022 LiveLaw (Kar) 244

Advocate S. Balakrishnan for appellant.

Special Public Prosecutor P. Prasanna Kumar, for respondent

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