13 Years Incarceration Already Undergone: Bombay HC Grants Bail To Man Accused Of Inciting & Instigating Persons To Visit Pakistan For ‘Jihad’ Training

The Bombay High Court granted bail to a man who was accused of inciting and instigating persons to go to Pakistan for ‘Hijrat’ i.e., training for ‘Jihad’ (terrorism), on the ground that he had already undergone incarceration of 13 years.

The accused man had sought quashing and setting aside of the order passed by the Trial Court by which his bail application was rejected and hence, he filed a criminal appeal before the court.

A Division Bench of Justice Revati Mohite Dere and Justice Gauri Godse said, “Admittedly, neither of these witnesses had gone to Pakistan, pursuant to the instigation/incitement. It is the prosecution case that the appellant incited and instigated and as such is liable under Section 18 and 18B of UAPA. The punishment for both the said offences ranges between a minimum of 5 years and upto life imprisonment. As noted above, the appellant has already undergone 13 years and 2 months incarceration. The prosecution intends to examine 30 more witnesses in the said case. As far as the submission of the learned counsel for the appellant that LET was declared as a terrorist organisation in 2008 and was not a banned organisation in 2006, when the alleged meeting took place, and as such the provisions of UAPA will not apply is concerned, the same will be considered by the trial Court, at the time of the trial and as such is not required to be gone into, at this stage.”

Advocate Mubin Solkar appeared for the appellant/accused while APP P.P. Shinde appeared for the respondent/State.

In this case, the counsel for the appellant argued for his release on bail, both, on merits as well as long incarceration. As far as merits were concerned, he submitted that the prosecution relied on two witnesses’ statements made in the year 2010. He submitted that both the said witnesses’ statements were recorded a few days prior to the accused’s arrest and that the said witnesses had disclosed about an incident i.e., an alleged meeting which had taken place 4 years prior i.e., in December 2006. It was alleged by the said two witnesses that the accused incited and instigated them to go to Pakistan for Hijrat i.e., training for Jihad.

It was further submitted that post December 2006, there was no evidence on record to show that the said witnesses went pursuant to the said incitement/instigation or that the accused was involved in the case, post the alleged meeting of December 2006. It was also contended that the alleged incident was of December 2006 and Lashkar-E-Taiba (LET) was declared as a terrorist organization in December 2008 and as such, the Unlawful Activities (Prevention) Act, 1967 (UAPA) will not apply. Hence, the counsel stated that for both the sections i.e., Sections 18 and 18B of the UAPA, the minimum sentence is 5 years, going up to imprisonment for life and that the accused was in custody for 13 years 2 months and that 30 more witnesses were yet to be examined and as such, the trial was not likely to be over in the immediate near future.

The High Court after hearing the arguments of the counsel observed, “We have perused the evidence, qua the appellant i.e. the two statements. Admittedly, the said statements were recorded in 2010, a few days post the arrest of A1 and few days prior to the arrest of the appellant. Both the witnesses have alleged in the said statements, with respect to what transpired in the meeting held by the appellant in December 2006. Admittedly, the two witnesses statements were recorded in September and October 2010, with respect to a meeting held by the appellant in December 2006.”

The Court further referred to the judgments in the cases of Union of India v. K.A. Najeeb (2021 SCC OnLine SC 50) and Angela Harish Sontakke v. State of Maharashtra (2021 3 SCC 723) in which the delay of trial was considered to be a relevant factor while examining the plea for bail of the accused. In K.A. Najeeb case, Section 43D (5) of UAPA was invoked and a fundamental proposition of law was laid down that a bail-restricting clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in the case would breach the concept of liberty enshrined in Article 21 of the Constitution.

Accordingly, the High Court allowed the appeal, set aside the order of the Trial Court, and granted bail to the accused on furnishing a bond of Rs. 1 lakh.

Cause Title- Mirza Himayat Beig @ Umar v. The State of Maharashtra (Neutral Citation: 2024:BHC-AS:613-DB)

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