Mere Possession Of 'Jihadi Literature' Not An Offence Unless Material Shows Execution Of Philosophy To Commit Terrorist Acts: Delhi Court

Dealing with a case registered under Unlawful Activities (Prevention) Act, a Delhi Court has observed that mere possession of "jihadi literature" having a "particular religious philosophy" would not amount to an offence unless there is material to show execution of such philosophy to commit terrorist acts.

"….to hold that mere possession of Jihadi literature having a particular religious philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is not fathomable in law unless and until there is material about execution of such philosophy so as to do terrorist acts. Such a proposition runs counter to the freedoms and rights guaranteed by Article 19 of the Constitution," said Principal District & Sessions Judge Dharmesh Sharma of Patiala House Courts.

The court made the observation while framing charges against nine accused in a National Investigation Agency case related to online propagation of ISIS ideology. The accused in the case are from Kerala, Karnataka and Kashmir.

The court framed charges against Mushab Anwar, Rhees Rasheed, Mundadiguttu Sadanananda Marla Deepthi, Mohd. Waqar Lone, Mizha Siddeeque, Shifa Haris, Obaid Hamid Matta and Ammar Abdul Rahiman under Sections 120B of the IPC read with Section 2 (o), 13, 38 and 39 of the UAPA.

The court has discharged a 26-year-old Kashmiri youth Muzamil Hassan Bhat of all the charges in the case, saying there is no evidence that he ever professed himself to be a member of ISIS or that he did anything so as to further the activities of the banned organisation.

The court said that there was prima facie case to frame charges against the other accused as they had accessed "highly provocative Jihadi material" and subscribed to ideology of the ISIS and were also deliberately, purposely and actively disseminating such material, seeking support from like­minded persons and "enticing gullible Muslim youths" to follow the path of the ISIS policies.

"They were professing to be self­styled module of Indian soldiers or operatives of the ISIS, and thus, making all efforts to further the cause of the banned organization," the court added.

Another accused, Obaid Hamid Matta has been charged under Sections 2 (o) and 13 of the UAPA.

"Merely because A­8 (Obaid Hamid Matta) was accessing and reading certain hardcore Islamic literature, does not per se amounts to committing any offence. However, he was indulging in commission of unlawful activities and therefore committed offences u/s 2(o) read with section 13 of the UA(P) Act," the court said.

While framing charges, the court said that the accused persons had been operating various social media platforms "as a toolkit" for spreading the ISIS ideology and thereby alluring, impressing and radicalising like­-minded fellow persons to indulge in unlawful activities.

"The aforesaid accused persons were professing, proclaiming or asseverate themselves not only to be members of the banned organization but also furthering the provocative, violent and divisive ideology of the banned outfit ISIS," the court said.

Perusing the chargesheets filed by the NIA, the court observed that the extraction of data from the digital devices and social media account revealed that all the accused persons, except Muzamil Hassan Bhat who was discharged, were accessing Jihadi material from the internet. It added that the accused were also advocating and disseminating such ideology or philosophy of ISIS through their private and public social media accounts.

"There is prima facie substance in the prosecution case that the accused were disseminating inflammatory and provocative Jihadi material through various social media accounts, and thus, were attempting to pollute the minds of gullible Muslim youths to further the activities of the banned terrorists organization. To sum up, even a casual reading of the messages, chatting, dialogues, comments and the whole tone and tenor of the entire material extracted from the digital devices of the accused persons would show that there was deliberate attempt to cause disaffection against the country," the court said.

On the aspect of terrorist act under UAPA, the court said that although the accused persons prima facie had committed offences under sections 2(o) and 13 of the UAPA, however there was no material to hold that any of them committed any terrorist act within the meaning section 15 of the Act.

"No physical act has been attributed to them leading to commission of a terrorist act or any act or omission shown to be preparatory to doing of a "terrorist act"….," said the court.

It was further observed that there was no material collected showing that any of the accused procured arms or ammunition or explosive substances or attempted to acquire the same or planned to commit any terrorist act so as to cause large scale disturbances or fear in the mind of the general public.

"If the prosecution story is believed, some of the accused persons were highly motivated to undertake Hijra i.e., mass exodus to ISIS controlled territories or for that matter to the State of Jammu & Kashmir, which desire could never materialize, and that by itself is no offence under section 18 of the UA(P) Act. There is no material that any of the accused individually or for that matter with in association with one or the other planned to carry out any terrorist act or act preparatory to any terrorist act," the Judge added.

Observing that although the material gathered by NIA at the best demonstrated that almost all the accused except Bhat were ISIS sympathizers and accessing highly radicalized Jihadi material from internet, however, it added that there was no material to suggest that any of them individually or in association with one or the other committed or planning any terrorist act.

"To sum up, the accused persons before this Court are more or less young persons and their religious & ideological bent of mind is certainly disdainful, despicable and contrary to the ideals of the constitution of India. However, since none of the accused is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular terrorist act, they cannot be held prima facie to have committed the offences in question," the court said.

On the issue of membership with the banned organisation, the court said that though the accused persons had been "probably aspiring to become members of the ISIS" however, none of them were an active member of the said organisation.

The court said that there was no evidence if any of the accused had been conferred any rank, position or designation or was given any specific task by the ISIS to carry out a terrorist act.

"There is no evidence that there is ever any acknowledgement by any one in the Command hierarchy of the ISIS or its subsidiary or affiliated outfit treating any of the accused as its foot soldiers or members of any 'sleeper cell', '' said the court.

It added: "Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members ­ much less such members as would attract the penal liability ­ of the said organization."

However, the court also observed that it is difficult to discern from the voluminous data extracted from the social media accounts and mobile phones that the accused persons were mere "passive members" of the banned organisation.

"Each one of them was very deliberately, purposely and actively using secured and unsecured as well encrypted social media accounts openly professing himself or herself as a sympathiser, activist and member of the banned orgainsation ISIS. It was not a mere case of affirmation of the violent philosophy of the ISIS by getting access to such material on the internet but also active involvement in the dissemination of such ideology," the court said.

It added "Prima facie sharing highly inflammatory, anti­ national and secessionist propaganda on the social media platforms to a select group of persons and entering into discussion or exchange of comments and counter comments or views by all means amounted to dissemination and also conducting a sort of meeting of like­ minded persons on the web world to spit venom against the country and promote the cause of the terrorist organisation."

Regarding the charges of terror funding, the court was of the view that there was no material collected to show that any of the accused had made any attempt or procured any weapons, arms or ammunition on receiving such funds. It was also observed that there was nothing to show that such funds were transferred to ISIS.

The court also refused to frame charges against the accused persons under section 121A of IPC observing that there was no material to hold that any of them were conspiring to wage war against the government of India.

"Mere accessing and reading articles or information about IEDs on the web world by A­9 and A­10 without any proof of actual or physical act of assembling and manufacturing such device is hardly of any consequence. There is no material that any of the accused persons individually or group was conspiring to wage war against Government of India and/or indulge in any kind of terrorist act," the court said.