Mere Discussions About Working For Islam Not Incriminating – Bombay HC Grants Bail To Man Accused Of Having IS Links

The Division Bench of Justice Revati Mohite Dere and Justice V. G. Bisht observed that what took place were mere discussions as to what was transpiring in India and the world and that everyone should work for Islam. The Bench noted that the said statements prima-facie cannot be said to be incriminating.

The Bench also observed, "This Court, whilst considering the said statements, observed in para 32 that the statements, at the highest, would show that they were in the realm of discussions and that there was no prima facie material to indicate that the accused therein instigated the commission of an offence or insurgency."

The Court also opined that the two Forensic Labs on the 'oath' document (Baith) had given varied opinions concerning the handwriting of the Appellant-Accused, in this context, the Court held –

"Be that as it may, even a perusal of the Oath (Baith) allegedly written by the appellant, at the highest, appears to be a declaration of the acceptance of one Abi Bakar Al Baghdadi Al Hussaini Al Quraishi as the `Caliph' of the Muslims. Prima-facie, a perusal of the said Oath (Baith) does not appear to be incriminating."

The Bench further continued to add that the circumstances relied upon the by the Prosecution did not appear to be of such nature so as to sustain a reasonable belief that the accusations against the Appellant are prima facie true, thus, the bar under Section 43-D(5) of the UAPA will not apply.

The Court also noted that it is the perception of the witnesses that the accused had jihadi leanings or were fundamentalists and there was no material to indicate that the Appellant instigated the commission of any offence or insurgency, nor the Appellant advocated violent reactions.

Counsel Mubin Solkar appeared for the Appellant while Spl. PP Aruna Kamath Pai appeared for NIA and APP A.R. Kapadnis appeared for the State before the High Court.

In this case, it was alleged that the Appellant and other co-accused would have discussions over threats to Islam and that actions of the ISIS and other issues like beef ban, communal rights, injustice to Muslims in Palestine etc. would also be discussed.

The Appellant was charged under Sections 120B and 471 IPC and Sections 13, 16, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 and Sections 4, 5 and 6 of the Explosive Substances Act, 1908.

It was further also alleged that the Appellant had also shown the place where the discussions took place and also that the Oath (Baith) owing allegiance to a banned terrorist organization was recovered from the house of accused No.3 and was written and signed by the Appellant.

The Appellant was accused of perpetrating unlawful activities, terrorist acts, recruiting persons for terrorist acts and/or being a member of a terrorist gang or organization, and association with, and/or support to, a terrorist organization

The other co-accused had already been granted bail, the Appellant was in custody since 14th July 2016 and the other two co-accused had pleaded guilty and were sentenced to 7 years of rigorous imprisonment.

The Bench observed, "We have very closely and meticulously gone through the statements of prosecution witnesses and have also given our findings as to their nature and contents thereof. Totality of the material gathered by the investigation agency qua appellant-accused and presented before us does not prima facie point out the involvement of the appellant-accused in the aforesaid offences."

Thus the Court allowed the appeal and granted bail to the Appellant-Accused.

Click here to read/download the Order