Madras High Court Grants Bail To Man Booked Under UAPA Over Facebook Posts Allegedly Instigating Muslims To Act Against Hindus

The Madras High Court recently allowed a criminal appeal and granted bail to a man booked by the National Investigation Agency (NIA) under the Unlawful Activities Prevention Act (UAPA) over his social media posts, allegedly instigating Muslims to act against Hindus and create communal disharmony amongst different religions.

The appellant, Bava Bahrudeen was booked for sedition, criminal conspiracy, and for inciting violence and was charged for offences under Sections 120(B) read with 124(A), 153A, 153B, 505(1)(b), 505(1)(c), 505(2) of IPC and Section 13(1)(b) of Unlawful Activities Prevention Act, 1967. His bail application was rejected by the trial court. This same was impugned before the High Court.

The bench of Justice S Vaidyanathan and Justice AD Jagadish Chandira opined that there was no evidence to prove that the appellant was involved in any violent activity and the only allegation was regarding uploading of Facebook posts.  

Other than the allegations against the appellant for having posted abusive and inciting materials, the appellant is not said to have indulged in any act of violence. When Section 13 of the said Act (UAPA) also does not fall within Chapter IV or VI of that Act requiring invoking of Section 43D(5) and (6) of the Act while deciding the bail application, the Special Court had wrongly invoked Section 43D(5) and (6) of the Act for dismissing the bail application. 

Background

Based on the complaint of Sri.M.Ravindran, Sub Inspector of Police, a case was registered against one Mohamed Iqbal alias Senthilkumar alleging that he had posted on his Facebook account some offensive and abusive material denigrating Hindus and instigating Muslims to act against Hindus and creating communal disharmony in a manner prejudicial to the maintenance of public order. One of these posts shared by Mohamed Iqbal alias Senthilkumar was originally posted by the appellant

During further investigation, it was found that the appellant was the active leader of Hizb-ut-Thrir in Tamil Nadu and he was, under the guise of an Islamic Scholar, preaching and delivering speeches inciting impressionable youth among Muslim community to establish an Islamic State or Caliphate or Khalifah and implement the draft Constitution written by Taqi al-Din al-Nabhani based on Shariah. It was also alleged that association to which the appellant belonged was banned in many countries. The prosecution also alleged that the appellant was influenced by the extremist, radical and fundamentalist ideology of Hizbut-Tahrir, which has been banned in several countries and that he was engaged in radicalizing the members of Muslim community to establish an Islamic State.

On the other hand, the appellant submitted that other than preaching about his religion, he was not involved in any illegal or criminal activity and that he was falsely implicated in the case. He also contended that the posts in question do not make out any offence against the appellant as the posts nowhere advocate for the overthrow or subversion of the Government established by law through violent means. The appellant also submitted that the organization to which he belonged was neither a proscribed organization nor deemed as a Terrorist Organisation.

The appellant also submitted that Section 13 of the UAPA Act does not fall within the offences under Chapters IV and VI of Unlawful Activities Prevention Act, 1967, and thereby the rigors of Section 43D(5) will not be applicable to the appellant and thus the trial court had erred in dismissing the bail application. 

The court agreeing with the contention of the appellant observed as under:

Now coming to the contents in the alleged Facebook posts, a reading of the vernacular material reveals that it had propagated the ideology of the appellant and reprimanded Muslim Youths for not following Tawheed Hakimiyyah and criticized caste system prevailing in Hindu religion, but, nowhere it advocates for overthrow or subversion of the Government established by law through violent means and it also does not bring or attempt to bring into hatred or contempt and does not excite or attempt to excite disaffection towards the Government established by law attracting the offence punishable under Section 124A IPC.

The court was also satisfied that the organization was not a terrorist organization. Considering that the appellant was in custody for more than 300 days and that there was no likelihood of the trial being completed at the earliest, the court was inclined to grant bail to the appellant.

The Association to which the appellant belongs is also not a proscribed organization or deemed to be a terrorist organization. As indicated above, Section 13 of Unlawful Activities Prevention Act, 1967 does not fall within Chapter IV or VI of the Act requiring recording of satisfaction as contemplated by sub-sections (5) and (6) of Section 43D of the Act. The appellant has been in custody for more than 300 days. Taking into consideration the stage of the case and the number of witnesses, there is also no likelihood of the trial being completed at the earliest. Therefore, this court is of the opinion that the appellant has made out a case for grant of bail.

Thus, the court directed that the appellant be released on bail on executing a bond for sum of Rs. 25,000 with two sureties for a like sum to the satisfaction of the Special Court under the National Investigation Agency Act, 2008. The appellant was also directed to appear before the Special court and not to leave the state of Tamil Nadu without prior permission and not to commit any offence of similar nature along with other bail conditions. 

Case Title: Bava Bahrudeen @ Mannai Bava v. Union of India

Case No: Criminal Appeal No.487 of 2022

Citation: 2022 LiveLaw (Mad) 306

Counsel for the Appellant: Mr.Sricharan Rangarajan for Mr.A.Rawther Naina Mohamed 

Counsel for the Respondent: Mr.R.Karthikeyan Special Public Prosecutor for NIA cases