Kerala High Court Refuses To Suspend Sentence Of Men Accused Of Attempting To Travel To Syria For Joining ISIS, Says Not Safe To Release Them

The Kerala High Court has dismissed the applications seeking suspension of sentence of three persons, who were last year convicted for attempting to travel to Syria for allegedly joining the ISIS. The applicants had argued they have undergone more than five years in custody, and were even never released on bail during trial.

The Division Bench of Justice Alexander Thomas and Justice Sophy Thomas noted that the Apex Court decision in Satender Kumar Antil vs. Central Bureau of Investigation (2022) that the delay in taking up the main appeal coupled with the benefit conferred under Section 436A of Cr.P.C among other factors ought to be considered for releasing the applicants on bail, was only meant to be a guideline, and that each case pertaining to a bail application had to be decided on its own merits.

"Here is a case where the applicants/appellants acted against the interest of the nation as they wanted to wage war against Syria, an Asiatic power at peace with the Government of India. So, even if the applicants/appellants have undergone major portion of the sentence imposed on them, it is not safe to release them on bail, as we do not know whether they still entertain the idea of performing Hijra to Syria for indulging in violent jihad," the court observed.

According to the prosecution, Deputy Superintendent of Police (DySP) had got reliable information that several youngsters from northern Kerala had joined the proscribed terrorist organisation ISIS, and that they had migrated to Syria and Afghanistan to "for indulging in violent jihad".

On a secret enquiry conducted by him, it was found that six accused named in the charge sheet, had attempted to join ISIS/Daish. Three of the six accused were intercepted by Turkish authorities while they were trying to cross over to Syria, and were deported back to India. Another accused was intercepted at the Mangalore Airport by the immigration authorities while he was allegedly travelling to Syria through UAE.

One of the masterminds in teaching ISIS/Daish ideology in Kerala had booked tickets to exit India but cancelled the same on knowing of the arrest of the other accused, it was alleged. According to the prosecution, there is also an unconfirmed report that sixth accused had crossed over to Syria and was killed there.

NIA later took over the investigation and filed a chargesheet against four accused. Two of the accused were turned as approvers. In July 2022, the accused were convicted by a special NIA Court. 

In the applications seeking suspension of sentences, the appellants argued that they had been arrested on October 25, 2017, and have been in judicial custody since. "They were never released on bail during trial and they have completed more than five years in custody," the court was told. 

It was argued that a major portion of sentence is already over. On merits, the appellants submitted that the prosecution had failed to prove its case beyond reasonable doubt, and that there was every chance for them to succeed in the appeal against conviction.

Deputy Solicitor General of India S. Manu submitted that the Special Court had convicted and sentenced the accused persons on analysing the entire facts, evidence and circumstances in detail. It was submitted that there was sufficient evidence to conclude that the appellants associated themselves with the terrorist organization ISIS.

DSG also claimed that applications have been filed with dubious intention, and the purpose of their bail application is to finish their tasks within the country, to further the activities of ISIS, before leaving the country for Syria.

The court said the allegations against the appellant are very serious in nature and the merits of the applications would have to be considered in order to prima facie ascertain whether there are strong compelling reasons for grant of bail, especially when the presumption of innocence has vanished and the accused have been convicted.

It took note of the Apex Court decisions in Preet Pal Singh vs. State of Uttar Pradesh & Anr. (2022), and Kalyan Chandra Sarkar vs. Rajesh @ Pappu Yadav & Anr. (2004), and observed that while suspending the sentence pending appeal and releasing the convict on bail, discretion ought to be exercised judicially and not in a casual manner. 

"Though detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding, why bail was being granted particularly where the accused is charged of having committed a serious offence. In considering an application for suspension of sentence, the appellate court has to examine if there is any patent illegality in the order of conviction, which renders the order prima facie erroneous. Where there is evidence that has been considered by the trial court, it is not open to a court considering application under Section 389 to reassess and/or re-analyse the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail," it observed. 

After perusing the evidence and materials that had been discussed by the trial court while convicting the applicants, the court said there is no any patent infirmity in the order of conviction .

"Moreover, considering the nature and gravity of the offences alleged, which are affecting the integrity of the nation and security and liberty of its citizens, the discretion has to be exercised with more care and caution, and not in a casual manner. Prima facie nothing is there, cogent enough to raise substantial doubts regarding the validity of the conviction," it added. 

The Court also took note of the submission by the DSG that the applications had been filed with dubious intent. "We do not know whether the applicants/appellants are having sleeping volcanoes of terrorism in their mind to indulge in violent jihad," it observed. 

The Court thus refused to suspend the sentence of the appellants and release them on bail. 

"These appeals are of the year 2022, admitted on 14.09.2022 and 06.10.2022. The appellants will be at liberty to move applications for early hearing of the main appeals, which would then be considered. It is clarified that the above findings and observations are made purely for the purpose of the above applications, and it will not cause any prejudice to the contentions of the appellants in the main appeals, and it will not have any bearing on the merits of the appeals," it said.

The applicants were represented by Advocates V.T. Raghunath, A.K. Preetha, and C.V. Rajalakshmi. 

Case Title: Midlaj @ Abu Mis'ab v. Union of India represented by National Investigation Agency 

Citation: 2023 LiveLaw (Ker) 76

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