Madhya Pradesh High Court
Kasif Khan vs Union Of India on 6 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
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NEUTRAL CITATION NO. 2025:MPHC-JBP:257
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
CRIMINAL APPEAL No. 5755 OF 2024
KASIF KHAN
Versus
UNION OF INDIA
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Appearance :
Shri Manish Datt – Senior Advocate with Shri Satyam Rai – Advocate
for the appellant.
Shri Deepesh Joshi – Advocate with Shri Qasim Ali – Advocate for the
respondent NIA.
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Heard on : 13/12/2024
Pronounced on : 06/01/2025
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J UDGMENT
Per: Justice Sushrut Arvind DharmadhikariThe instant Criminal Appeal under section 21(4) of the National
Investigation Agency Act, 2008 has been filed on behalf of the appellantSignature Not Verified
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against the order dated 12/04/2024 passed in SC NIA No.02 of 2023; whereby
the application filed by the appellant for grant of bail, has been rejected.
2. The appellant has been arrested on 21/08/2023 relating to FIR/Crime
No.RC-14/2023/NIA/DLI registered at Police Station NIA, Delhi, regarding
commission of offence punishable under Sections 120-B, 153-A, 153-B, 295-
A of the Indian Penal Code (hereinafter referred as IPC) and Sections 13, 17,
18, 20, 38, 39 and 40 of Unlawful Activities (Prevention) Act, 1967
(hereinafter referred as UAPA).
3. Prosecution story in short is that in compliance of the order of
Government of India, Ministry of Home Affairs, dated 24/05/2023, the
National Investigation Agency registered a case bearing No.RC-
14/2023/NIA/DLI dated 24/05/2023 under Sections 120-B, 295-A of the IPC
and Sections 16, 17, 18, 18(B), 20 of UAPA against co-accused Syed Mamoor
Ali, Adil Khan and other unknown persons. The NIA took up the
investigation wherein it was revealed that during nationwide lockdown in the
year 2020, the accused persons started gaining knowledge about comparison
of religion through watching the videos of Zakir Naik, an Islamic Preacher,
reading Quran and Hadeeth..
(3.1) Further, investigation revealed that co-accused Mohd. Adil Khan got
influenced by the thoughts of Zakir Naik and started gaining knowledge about
basics of geopolitics (learnt about Syria @ Sham, Israel, America, Saudi
Arabia, Khurasan etc.). He also expressed interest towards Jihad and started
corroborating Jihad with Quran. He developed radicalized bent of mind and
started believing that there must be Shariyat all over the world and no one
should follow the man-made laws. The NIA found that the co-accused-Syed
Mamoor was also listening and watching Islamic lectures delivered by Islamic
orators such as Zakir Naik, Syed Faiz, Dr. Israr Ahmad etc. and was also
watching videos of Anwar-Al-Awlaki. He started searching about Jihad and
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corroborated the same with Quran for developing Jihadis ideology as he
wanted to spread Sharia law all over the world.
(3.2) The investigation also revealed that co-accused-Syed Mamoor started
giving Dawah to Hindus and started distribution of pamphlets related to Islam.
Further, during the investigation, the NIA also found that the present appellant
and other co-accused Shahid Khan were also involved in said unlawful
activities. All the accused persons were watching Islamic lectures to provoke
Jihad and implement Sharia law all over the world including India. All the
accused persons became close friends and started discussing Quran and
Hadeeth and Jihad too. They all started sharing radicalized thoughts with each
other. They had a common mind of establishing Sharia law in India through
violent means. They used to visit Falah Darain Masjid for offering Namaz,
where they used to discuss Jihad through violent means and Khilafat based on
Shariyat. They also prepared the pamphlets similar to the flags of ISIS and Al-
Qaeda. They affixed one of the samples of pamphlets on the wall of nearby
Ahle Hadees mosque in order to attract likeminded people, whom they can
influence towards ideology of ISIS. The Investigation further shows that in the
month of August, 2022, the appellant created a WhatsApp group namely
“Pics” and added Mohd. Adil Khan, Shahid Khan and some other persons.
After creating the said group, co-accused Mohd. Adil khan started sharing
videos, audios, photos, related to ISIS/Jihad/Shariyat in order to motivate the
group members towards the ideology of ISIS. They also started sharing
derogatory posts on Hindu deities. In the month of December, 2022, appellant
added co-accused – Syed Mamoor Ali @ Mamoor Bhai, who changed the
name of group as “Fisabillilah” and also changed the Display Picture of the
group, which was similar to the flag of ISIS with slight modifications. In the
said WhatsApp group, the accused persons started discussing Shariyat,
Khilafat and Jihad. In order to escape themselves from the radar of
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Investigation Agency, they decided to use code names for ISIS such as “eye
S”, “eye ass”, “eye as”, “eye sis”, “eye see”, “Dhadiwale”, “Dawlah”, “1515”,
“15”, “Mujahideen” and “Eye s fisabilillah”. They also decided co-accused
Syed Mamoor Ali would be the Ameer of the group.
(3.3) The investigation further revealed that co-accused Adil Khan came in
contact with one Faris Nazdi through social media, who provided contents
related to ISIS. It is further alleged that co-accused Adil Khan also
downloaded several contents relating to ISIS. The said contents were also seen
by other co-accused persons in laptop of co-accused Shahid Khan. Further, co-
accused Adil Khan created a bot channel namely “Dawlah @ baqiyah_bot)”
on Telegram. He used to upload links of the Dawlah bot in his Instagram
account named as “abdullahadawallah”. He also took backup of said data on
Mega application. Thereafter, the other co-accused persons also created
accounts on Social Media in order to fulfill their motive.
(3.4) The investigation further shows that the present appellant and other co-
accused persons conspired to attack Ordnance Factory, Jabalpur, to procure the
weapons in large quantity in furtherance of their terror activity. They also
decided to blast the Jabalpur Ordnance Factory, if they could not succeed in
capturing the Factory. The co-accused Syed Mamoor Ali also suggested to
have three Mujahids behind each security personnel in order to capture the
Factory. They wanted to expand their violence to whole India. It is further
alleged that the co-accused- Syed Mamoor gave responsibility of technical
head to co-accused Mohd. Adil Khan and preparation of explosive to present
appellant. In furtherance thereof, appellant shared a link of one YouTube video
to prepare highly inflammable explosive by using daily used material and
chemical. The accused persons did not believe in the concept of Nationalism,
Democracy, Constitution and Voting system and motivated others too for
doing so. They wanted to recruit like-minded people in large number toSignature Not Verified
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strengthen their organization. They also decided to make monthly contribution
for their cause and wanted to raise funds through Bait-ul-mal. During the
course of the investigation, various audios/videos/PDFs of ISIS publications
as well as incriminating handwriting diary, digital devices, literature,
pamphlets, mobile phones were seized from possession of the accused
persons. The investigating agency also procured CDR between the accused
persons. The accused persons got arrested by the investigating agency.
4. It is submitted by the learned counsel for the appellant that the appellant
has falsely been implicated in the case. The prosecution case is based on
suspicion and indeed, there is nothing on record against the present appellant.
No offence, as alleged is made out against him as necessary ingredients to
constitute the alleged offence are completely missing. The appellant has no
criminal antecedents and if the appellant is kept in jail, it will adversely affect
his family and cause irreparable loss. Only on the basis of memorandum of co-
accused, the present appellant has been impleaded as an accused in the case.
Mere exchange of religious beliefs does not constitute any offence. The
material collected by the investigating agency prima facie does not constitute
any offence against the present appellant. No weapons have been seized from
the possession of the present appellant. It is further submitted that
investigation is over and charge-sheet has been filed. He has also submitted
that while considering the bail application under Section 43(D)(5) of UAPA,
the court is duty bound to apply its mind to examine the entire material
available on record for the purpose of satisfying itself as to whether prima
facie case is made out against the accused or not ? The period of custody and
probability of conclusion of trial in near future should be considered by the
Court. In the present case, the learned trial Court failed to consider the
provisions of law in proper manner. Mere association with terrorist
organization is not sufficient to attract Section 38 of UAPA and mere support
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to a terrorist organization is not sufficient to attract Section 39 of UAPA. The
association and support have to be with an intention and in furtherance of the
activities of the terrorist organization. In addition to above submissions, the
learned Senior counsel for the appellant has submitted that the appellant is a
permanent resident of District Jabalpur and there is no likelihood of his
absconding or tampering with the prosecution evidence. The appellant is ready
to furnish adequate surety and shall abide by all the directions and conditions
which may be imposed by the Court. In support of his contentions, learned
Senior counsel for the appellant placed reliance on the following citations:- (1)
Sudesh Kedia Vs. Union of India, 2021 (4) SCC 704 (2) Sheikh Javed
Iqbal@Asfhaq Ansari@Javed Ansari Vs. State of Uttar Pradesh, 2024(8)
SCC 293 (3) Jalaluddin Khan Vs. Union of India, 2024 SCC OnLine SC
1945 and (4) Tawaha Fasal Vs. Union of India, (2022) 14 SCC 766. On
these grounds, prayer is made to allow the appeal and enlarge the appellant on
bail.
5. Per contra, learned counsel appearing for the respondent has
vehemently opposed the appeal. He submitted that the offence committed by
the appellant is serious in nature and against the integrity and peace of country.
The prosecution has collected incriminating material viz. audio clips, video
clips, objectionable literatures, pamphlets, handwritten documents from the
possession of all the accused persons including present appellant which show
his involvement in the alleged crime. He has further submitted that Section 43
D(5) of UAPA imposes restrictions upon the Court in granting bail to accused
person. The statements of witnesses recorded under Sections 161 and 164 of
Cr.P.C., clearly establishes the complicity of present appellant in the alleged
crime. He further submitted that it is not necessary that every person who are
involved in terrorist activities must have criminal antecedents. The appellant
was fully aware about the banned terrorist organization ISIS and its activities
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in India and worldwide. As per Section 19 of NIA Act, 2008, the trial will be
conducted having precedence over other matters and therefore, there is no
delay in trial proceedings. If the appellant is released on bail, there is every
possibility of his fleeing away. In support of his contentions, learned counsel
for the respondent has placed reliance on the following decisions (1)
Gurwinder Singh vs. State of Punjab and another, reported in (2024) 5
SCC 403 (2) Jayanta Kumar Ghosh Vs. National Investigation Agency,
2013 (1) Gauhati Law Reports 374 (3) Golan Daulagupu Vs. National
Investigation Agency, 2013 (2) Gauhati Law Reports 791.
6. We have heard the submissions advanced by learned counsel for the
parties and perused the charge-sheet along with other documents available on
record and also the case laws referred by the counsel for the parties.
7. Before examining the facts of the case, we think it appropriate to reiterate
the settled legal position laid down by Hon’ble Supreme Court in the case of
Zahoor Ahmad Shah Watali, reported in (2019) 5 SCC 1, for deciding an
application for bail, which reads that:-.
Before we proceed to analyse the rival submissions, it is apposite to
reiterate the settled legal position about matters to be considered for deciding
an application for bail, to wit,
(i) whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with;
and
(viii) danger, of course, of justice being thwarted by grant of bail.
8. Now, we come to the provisions relating to bail under the UAPA i.e.
sub-section 5 of Section 43D, same reads as under:
“43-D. Modified application of certain provisions of the Code
“……………………………………………………………..
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(5) Notwithstanding anything contained in the Code, no person accused
of an offence punishable under Chapters IV and VI of this Act shall, if in
custody, be released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being heard on the
application for such release:
Provided that such accused person shall not be released on bail or on
his own bond if the Court, on a perusal of the case diary or the report
made under Section 173 of the Code is of the opinion that there are
reasonable grounds for believing that the accusation against such person
is prima facie true.
(6) The restrictions on granting of bail specified in Sub-Section (5) is in
addition to the restrictions under the Code or any other law for the time
being in force on granting of bail.
(7) Notwithstanding anything contained in Sub-Sections (5) and (6), no
bail shall be granted to a person accused of an offence punishable under
this Act, if he is not an Indian citizen and has entered the country
unauthorizedly or illegally except in very exceptional circumstances and
for reasons to be recorded in writing.”
9. In the case of Zahoor Ahmad Shah Watali (supra), the Hon’ble
Supreme Court has laid down the principle for considering the bail application
under UAPA, the relevant para is quoted as under:
“17. By virtue of the proviso to sub-section (5), it is the duty of the
Court to be satisfied that there are reasonable grounds for believing
that the accusation against the accused is prima facie true or
otherwise. Our attention was invited to the decisions of this Court,
which has had an occasion to deal with similar special provisions in
TADA and MCOCA. The principle underlying those decisions may
have some bearing while considering the prayer for bail in relation to
offences under the 1967 Act as well. Notably, under the special
enactments such as TADA, MCOCA and the Narcotic Drugs and
Psychotropic Substances Act, 1985, the Court is required to record
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accused is “not guilty” of the alleged offence. There is degree of
difference between the satisfaction to be recorded by the Court that
there are reasonable grounds for believing that the accused is “not
guilty” of such offence and the satisfaction to be recorded for the
purposes of the 1967 Act that there are reasonable grounds for
believing that the accusation against such person is “prima facie”
true. By its very nature, the expression “prima facie true” would
mean that the materials/evidence collated by the Investigating
Agency in reference to the accusation against the concerned accused
in the first information report, must prevail until contradicted and
overcome or disproved by other evidence, and on the face of it,
shows the complicity of such accused in the commission of the
stated offence. It must be good and sufficient on its face to establish
a given fact or the chain of facts constituting the stated offence,
unless rebutted or contradicted. In one sense, the degree of
satisfaction is lighter when the Court has to opine that the accusation
is “prima facie true”, as compared to the opinion of accused “not
guilty” of such offence as required under the other special
enactments. In any case, the degree of satisfaction to be recorded by
the Court for opining that there are reasonable grounds for believing
that the accusation against the accused is prima facie true, is lighter
than the degree of satisfaction to be recorded for considering a
discharge application or framing of charges in relation to offences
under the 1967 Act…….”
10. Thereafter, in the case of K.A.Najeeb Vs. Union of India, reported in
(2021) 3 SCC 713, the Hon’ble Supreme Court distinguishing the law laid
down in the case of Zahoor Ahmad Shah Watali (supra) held that Courts are
expected to appreciate legislative policy against grant of bail but rigour of
such provisions will melt down where there is no likelihood of trial being
completed within a reasonable time and period of incarceration already
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undergone has exceeded a substantial part of prescribed sentence.
Presence of statutory restrictions like Section 43D(5) of UAPA per se do not
oust ability of Constitutional Courts to grant bail on grounds of violation of
Part III of Constitution.
11. After considering the decisions passed in the cases of Zahoor Ahmad
Shah Watali (supra) and K.A.Najeeb (supra), the Hon’ble Supreme Court in
the case of Thwaha Fasal (supra) dealing with the scope of Section 43D(5)
of UAPA, held that if Court, after examining material on record, is satisfied
that there are no reasonable grounds for believing that accusation against
accused is prima facie true, then accused is entitled for bail. The Court
while examining the issue of prima facie case as required by sub-section (5) of
Section 43-D is neither expected to hold a mini trial nor is supposed to
examine the merits and demerits of the evidence. If a charge-sheet is already
filed, the Court has to examine the material forming a part of charge-sheet for
deciding the issue whether there are reasonable grounds for believing that the
accusation against such a person is prima facie true or not. While doing so, the
Court has to take the material available in the charge-sheet as it is.
Mere association with a terrorist organization as a member or otherwise will
not be sufficient to attract offence under Section 38 of UAPA unless
association is with an intention to further its activities.
Stringent restrictions imposed by sub-section (5) of Section 43D of UAPA, do
not negate the powers of Constitutional Court to grant bail keeping in mind
violation of Part III of the Constitution.
12. The learned counsel for the NIA relied upon a recent decision of
Hon’ble Supreme Court passed in the case of Gurwinder Singh (supra)
wherein the Hon’ble Supreme Court has considered its earlier decisions
including Zahoor Ahmad Shah Watali (supra) as well as K.A.Najeeb
(supra) which deal with interpretation of Section 43D(5). In the said case, the
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Hon’ble Supreme Court dismissed the appeal challenging the dismissal of the
bail application by the trial Court and that was upheld by the High Court.
Further, the Hon’ble Supreme Court explained in detail the principles
governing consideration of bail application in case under the UAPA.
Paragraph 20 to 23 of the said decision reads thus:
“20. In this background, the test for rejection of bail is quite plain. Bail
must be rejected as a ‘rule’, if after hearing the public prosecutor and
after perusing the final report or Case Diary, the Court arrives at a
conclusion that there are reasonable grounds for believing that the
accusations are prima facie true. It is only if the test for rejection of bail is
not satisfied – that the Courts would proceed to decide the bail
application in accordance with the ‘tripod test’ (flight risk, influencing
witnesses, tampering with evidence). This position is made clear by Sub-
section (6) of Section 43D, which lays down that the restrictions, on
granting of bail specified in Sub-section (5), are in addition to the
restrictions under the Code of Criminal Procedure or any other law for
the time being in force on grant of bail. 21. On a textual reading of
Section 43 D(5) UAP Act, the inquiry that a bail court must undertake
while deciding bail applications under the UAP Act can be summarised in
the form of a twin-prong test :
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offence
under Chapter IV or VI of the UAP Act
1.2 Such examination should be limited to case diary and final report
submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the
general principles relating to grant of bail under Section 439 CrPC
(‘tripod test’)?
On a consideration of various factors such as nature of offence, length of
punishment (if convicted), age, character, status of accused etc., the
Courts must ask itself :
2.1 Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused tampering with the
evidence?
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2.3 Whether there is apprehension of accused influencing witnesses?
22. The question of entering the ‘second test’of the inquiry will not arise
if the ‘first test’is satisfied. And merely because the first test is satisfied,
that does not mean however that the accused is automatically entitled to
bail. The accused will have to show that he successfully passes the ‘tripod
test’.
23. In the previous section, based on a textual reading, we have discussed
the broad inquiry which Courts seized of bail applications under Section
43D(5) UAP Act r/w Section 439 Cr.P.C. must indulge in. Setting out the
framework of the law seems rather easy, yet the application of it, presents
its own complexities. For greater clarity in the application of the test set
out above, it would be helpful to seek guidance from binding precedents.
In this regard, we need to look no further than Watali’s case which has
laid down elaborate guidelines on the approach that Courts must partake
in, in their application of the bail limitations under the UAP Act. On a
perusal of paragraphs 23 to 29 and 32, the following 8-point propositions
emerge and they are summarised as follows:
(i) Meaning of ‘Prima facie true’ [Para 23]: On the face of it, the
materials must show the complicity of the accused in commission of the
offence. The materials/evidence must be good and sufficient to establish
a given fact or chain of facts constituting the stated offence, unless
rebutted or contradicted by other evidence.
(ii) Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and
Post-Charges – Compared [Para 23]: Once charges are framed, it would
be safe to assume that a very strong suspicion was founded upon the
materials before the Court, which prompted the Court to form a
presumptive opinion as to the existence of the factual ingredients
constituting the offence alleged against the accused, to justify the framing
of charge. In that situation, the accused may have to undertake an arduous
task to satisfy the Court that despite the framing of charge, the materials
presented along with the charge-sheet (report under Section 173 Cr.P.C.)
do not make out reasonable grounds for believing that the accusation
against him is prima facie true. Similar opinion is required to be formed
by the Court whilst considering the prayer for bail, made after filing of
the first report made under Section 173 of the Code, as in the present
case.
(iii) Reasoning, necessary but no detailed evaluation of evidence [Para
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discussing merits or demerits of the evidence. The elaborate examination
or dissection of the evidence is not required to be done at this stage.
(iv) Record a finding on broad probabilities, not based on proof
beyond doubt [Para 24]: “The Court is merely expected to record a
finding on the basis of broad probabilities regarding the involvement of
the accused in the commission of the stated offence or otherwise.”
(v) Duration of the limitation under Section 43D(5) [Para 26]: The
special provision, Section 43-D of the 1967 Act, applies right from the
stage of registration of FIR for the offences under Chapters IV and VI of
the 1967 Act until the conclusion of the trial thereof.
(vi) Material on record must be analysed as a ‘whole’ no piecemeal
analysis [Para 27]: The totality of the material gathered by the
investigating agency and presented along with the report and including
the case diary, is required to be reckoned and not by analysing individual
pieces of evidence or circumstance.
(vii) Contents of documents to be presumed as true [Para 27]: The
Court must look at the contents of the document and take such document
into account as it is.
(viii) Admissibility of documents relied upon by Prosecution cannot
be questioned [Para 27]: The materials/evidence collected by the
investigation agency in support of the accusation against the accused in
the first information report must prevail until contradicted and overcome
or disproved by other evidence……In any case, the question of discarding
the document at this stage, on the ground of being inadmissible in
evidence, is not permissible.”
13. Thereafter, the law laid down in the case of Gurwinder Singh
(Supra), has been distinguished by the Hon’ble Supreme Court in the case of
Sheikh Javed Iqbal (supra) holding that when trial gets prolonged, it is not
open to prosecution to oppose bail of accused-under trial on the ground that
charges are very serious. Bail cannot be denied only on the ground that
charges are very serious though there is no end in sight for trial to conclude.
The Constitutional Court cannot be restrained from granting bail to accused
on account of restrictive statutory provisions in a penal statute if it finds that
right of accused-under trial under Article 21 of Constitution of India has been
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infringed. Further, Section 43D(5) of UAPA does not oust ability of
Constitutional Courts to grant bail on the ground of violation of Part III of
the Constitution.
14. Thereafter, the Hon’ble Supreme Court again reiterated the principle in
the case of Jalaluddin Khan (supra) wherein it is held that the Court has to
examine the material forming part of the charge-sheet to decide whether there
are reasonable grounds for believing that the accusations against the person
applying for bail are prima facie true. While doing so, the Court must take the
charge-sheet as it is . When a case is made out for grant of bail, Courts should
not have any hesitation in granting bail. If Courts start denying bail in
deserving cases, it will be a violation of rights guaranteed under Article 21 of
the Constitution.
15. Recently, The Hon’ble Supreme Court referring the verdict given in
Ahmad Shah Watali (supra), K.A.Najeeb (supra), Thwaha Fasal (supra)
and Jalaluddin Khan (supra), passed the judgment in the case of Athar
Parwez Vs. Union of India, in Criminal Appeal No. 5387 of 2024 [Arising
Out Of Slp (Crl) No. 9209 of 2024]
decided On 17-12-2024, and again reiterated and clarified the principle
regarding deciding the bail application under UAPA holding that the right to a
speedy trial under Article 21 of the Constitution is paramount, and prolonged
detention without charges is unconstitutional. Giving precedence to the
protection of Fundamental Rights and emphasizing upon their primacy over
the statutory provisions in case of delayed trial, in the above judgments, the
Hon’ble Court had even gone to the extent of asserting that the seriousness of
the crime for which the accused is facing the trial would not be material as an
accused is presumed to be innocent until proven guilty.
16. In the light of above referred judgments, we sum-up the legal position
by saying that while considering the bail application under UAPA, it is the
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duty of the Court to be satisfied that there are reasonable grounds for believing
that the accusation against the accused is prima facie true or otherwise. By its
very nature, the expression “prima facie true” would mean that the
material/evidence collected by the investigating agency in order to establish
the accusation against the accused concerned in the first information report,
must prevail until contradicted or disproved by other evidence, and on the face
of it, shows the complicity of such accused in the commission of the alleged
offence. It must be sufficient on its face to establish the given facts. The
restriction on the powers of the Court to grant bail is less stringent and if the
Court, having regard to the material brought before it, is satisfied that in all
probability, the accused may not be ultimately convicted, an order granting
bail may be passed. What would further be necessary on the part of the Court
is to see the culpability of the accused and his involvement in the commission
of an organized crime either directly or indirectly. The Court at the time of
considering the application for grant of bail shall consider the question from
the angle as to whether he was possessed of the requisite mens rea. The Court
must consider the nature and manner in which the accused is alleged to have
committed the offence. Further, for the purpose of considering an application
for grant of bail, although detailed reasons are not necessary to be assigned,
but the order granting bail must demonstrate application of mind at least in
serious cases as to why the applicant has been granted or denied the privilege
of bail. The duty of the Court at this stage is not to weigh the evidence
meticulously but to arrive at a finding on the basis of broad probabilities.
While deciding the bail, the Court should not conduct a mini-trial to determine
the admissibility of certain evidence, which exceeded the limited scope of a
bail petition. This not only was beyond the statutory mandate of a prima facie
assessment under Section 43-D(5) UAPA, but it was premature and possibly
would have prejudiced the trial itself. The findings recorded by the Court
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while granting or refusing bail undoubtedly would be tentative in nature,
which may not have any bearing on the merits of the case and the trial Court
would, thus, be free to decide the case on the basis of evidence adduced at the
trial, without being prejudiced thereby in any manner.
17. Further, in the referred judgments, the Hon’ble Apex Court has also
taken care of the liberty guaranteed by Part III of the Constitution of India
which covers not only due procedure and fairness but also access to justice
and a speedy trial. The Hon’ble Supreme Court has time and again reiterated
that under-trials cannot indefinitely be detained in pending trial even in
UAPA. Once it is obvious that a timely trial would not be possible and the
accused has suffered incarceration for a significant period of time, the Courts
would ordinarily be obligated to enlarge them on bail. The Hon’ble Supreme
Court clarified that the presence of statutory restrictions like Section 43-D(5)
of the UAPA per-se do not oust the ability of the constitutional Courts to grant
bail on grounds of violation of Part III of the Constitution. Whereas, at
commencement of proceedings, the Courts are expected to appreciate the
legislative policy against grant of bail but the rigorous of such provisions will
melt down where there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already undergone has
exceeded a substantial part of the prescribed sentence.
18. If the above principal is considered more precisely, there are two
conditions for granting bail to accused under trial in UAPA; first, if the Court
is satisfied that the entire material collected by the investigation agency do not
constitute prima facie case against the accused person and investigation
agency has failed to show as to whether there are reasonable grounds for
believing that the accusation against the accused is prima facie true, and
secondly, a timely trial would not be possible and the accused has suffered
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incarceration for a significant period for a substantial part of prescribed
sentence which amounts to violation of his Fundamental Rights.
19. Now adverting to the facts of the case at hand, we are conscious of the
fact that the allegations levelled against the appellant are grave and a serious
threat to societal harmony. On perusal of charge-sheet, following allegations
have been made against the present appellant –
“(I) He was associated with banned terrorist organization, Islamic
State of Iraq and Syria (ISIS) alongwith other co-accused persons.
(II) The present appellant was in possession of several incriminating
articles viz. violent videos, literature against the democracy and
nationalism etc.
(III) The present appellant created a WhatsApp group namely, “Pics”,
which got renamed by the co-accused Syed Mamoor Ali as “Fisabilillah”.
In the said WhatsApp group, accused persons shared the radicalized
thoughts.
(IV) The present appellant discussed Shariyah, Jihad, Khilafat and
ISIS alongwith other co-accused persons. They also planned to
disseminate the ideology of ISIS through Dawah programs and started
organizing Dars in Falah Darain Masjid and started radicalizing the
persons who came close to them to recruit them in ISIS.
(V) Present appellant took part in offering Dawah (invitation to
religious discussion) to people in Penchkari Masjid to spot the radicalized
persons to take them into ISIS.
(VI) Present appellant along with other co-accused persons conspired
to attack Ordnance Factory, Jabalpur, to procure weapons in large quantity
for furtherance of the activities of ISIS.
(VII) Present appellant was the person, who shared the video in the
WhatsApp group relating to preparation of explosives in order to capture
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the Ordnance factory. He also provoked other co-accused persons to
prepare the explosives.
(VIII) The present appellant did not have belief in the concepts of
Nationalism, Democracy, Principles of Constitution and voting system.
(IX) The present appellant was using the social media account and he
used to share derogatory posts on Hindu Deities.
(X) The NIA recovered one audio conversation between present
appellant and co-accused Mohd. Adil Khan, wherein both are discussing
about Jihad and Jaziya.
20. In order to strengthen their case, the NIA got analysed the phone of
present appellant wherein they found the present appellant accessed the
telegram Dawlah bot of co-accused Mohd. Adil Khan and downloaded ISIS
contents from there. The said videos are pertaining to violent Jihad, suicide
bombing, throat cutting, killing of people wearing saffron clothes etc. The
present appellant was creator of WhatsApp group, wherein radicalized things
were being discussed. The NIA has also recovered the audio clip from the
mobile phone of co-accused Adil Khan, wherein the present appellant and co-
accused were discussing about the Jihad and Jaziya. The charge-sheet further
shows that apart from the videos, various literatures/books against the
nationalism and democracy were also found.
21. Further, the investigation agency recorded the statements of various
witnesses u/s 161 & 164 of Cr.P.C. denoting them as ‘A’ to ‘H’, which indicate
entire conspiracy and activities of the present appellant and other accused
persons in commission of the alleged crime. The witnesses also stated that the
present appellant and other co-accused persons shared the derogatory posts on
Hindu Deities. They decided to make explosives from house hold material
wherein present appellant took initiative to prepare the same and he provoked
others to do so, through which the accused persons wanted to attack Ordnance
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Factory, Jabalpur. The NIA also procured the CDR report of all the accused
persons to show interconnection between them.
22. In view of the above discussion, it is clear that there is sufficient
material available in the charge-sheet showing that the appellant has actively
participated in and has committed unlawful activities as defined in the UAPA.
There is specific material to show that the appellant advocated, abetted, or
incited commission of many unlawful activities.
23. The terrorist act is defined in Section 15(1) of UAPA, which inter-alia
says that whoever does any act with intent to threaten the unity, integrity,
security, economic security or sovereignty of India or with intent to strike
terror or likely to strike terror in the people or any section of the people in
India or any foreign country by using bombs, dynamite or other explosive
substances or inflammable substances or firearms or other lethal weapons or
poisonous or noxious gases or other chemical or by any other substances
(whether biological radioactive, nuclear or otherwise) of a hazardous nature or
by any other means of whatever nature to cause or likely to cause (i) death of,
or injuries to, any person or persons, or (ii) loss of, or damage to, or
destruction of property, or (iii) disruption of any supplies or services essential
to the life of the community in India or in any foreign country; or (iv) damage
or destruction of any property in India or in a foreign country used or
intended to be used for the defence of India or in connection with any other
purposes of the Government of India, any State Government or any of their
agencies, commits a terrorist act.
24. The material collected by the NIA shows that the present appellant was
the active member of conspiracy by which, the accused persons were going to
attack upon Ordnance Factory, Jabalpur, which is an entity of defence. We find
sufficient material to show that there was conspiracy to commit a terrorist
act to which the appellant was a party. The NIA produced sufficient material
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on record to show that the appellant was involved in the alleged terrorist acts
and other preparatory activities. The accused persons were not only supporting
the activities of terrorist organization but also they wanted to stand their own
organization with the intention to ruin the Constitution of India.
25. Religious terrorism is a tragic and dangerous phenomenon that distorts
the true teachings of faith and causes immense harm to individuals and
societies. While the roots of religious terrorism are deep and complex, it is
crucial to understand that no religion inherently supports violence or terror.
26. This Court cannot express undue leniency to a person who is facing
serious charge of terrorism and unlawful activities. The trial is also set at full
motion and there is every possibility of trial being completed in its due course.
Therefore, considering the overall facts and circumstances, at this stage, we
are not inclined to grant bail to the appellant.
27. Accordingly, the instant Criminal Appeal is hereby dismissed. The order
passed by the learned trial Judge, dated 12/04/2024 in SC NIA No. 02 of 2023
is hereby affirmed.
28. However, we make it clear that the findings recorded in this judgment
are only for considering the prayer for bail and the learned trial Court may
proceed in the case without being prejudiced from any finding given by this
Court.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
skt
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