Debatable Whether Killing Of Hindu Religious Leaders By Itself Will Constitute Terrorist Act U/s. 15 Of UAPA: Madras HC Grants Bail To Person Accused Of Conspiring With ISIS To Attack Temples, Kill Hindu Leaders
The Madras High Court granted bail to a man who was accused of conspiring with an alleged member of the terrorist organisation, ISIS (Islamic State of Iraq and Syria) to attack the temples and kill Hindu religious leaders of the BJP and the RSS.
As per the prosecution, the accused had sent messages on a chat app that he had taken an oath to follow ISIS leader Khalifa Sheik Abul Hasan and that he claimed to an ISIS member that he had killed many persons. However, the prosecution could not identify who the accused Asif Musthaheen had killed. The accused had also asked the ISIS member for weapons like AK-47 guns.
The Court said that the question as to whether the killing of Hindu religious leaders by itself can constitute a terrorist act under Section 15 of the Unlawful Activities (Prevention) Act, 1967 i.e., UAPA is debatable.
The aforesaid accused had filed an appeal against the order of the Principal District and Sessions Judge, Erode by which his bail application was dismissed.
A Division Bench comprising Justice S.S. Sundar and Justice Sunder Mohan observed, “In order to bring an act under Section 15 of the UA (P) Act, the act must be done with an intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. The question as to whether the killing of Hindu religious leaders by itself can constitute a terrorist act is debatable. However, considering the broad probabilities of the case from the materials collected by the prosecution, one cannot definitely conclude that there was a conspiracy to commit a terrorist act, though there is a conspiracy to commit other illegal acts including serious offences.”
Senior Advocate T. Mohan appeared on behalf of the appellant/accused while Additional Public Prosecutor A. Gokulakrishnan appeared on behalf of the respondent/State.
Facts of the Case -
The accused was arrested in 2022 for the offences under Sections 121, 122, and 125 of the Indian Penal Code (IPC) read with Sections 18, 18A, 20, 38, and 39 of the UAPA. During the investigation, the accused had preferred a bail application which was dismissed and then the criminal appeal preferred before the High Court was dismissed. He challenged the order of the High Court before the Apex Court which also dismissed the said bail application while observing that prima facie case is not made out. Thereafter, he filed a plea seeking bail under Section 167(2) of Cr.P.C before the Principal District and Sessions Judge, Erode but the same was also dismissed.
The High Court, while dismissing his appeal against the order of the Trial Court, had given liberty to him to file another bail application canvassing changes in circumstances, if any. However, the Trial Court dismissed the third bail application, as against which, he was before the High Court. In the meantime, the prosecution filed the final report and it was reported that the Magistrate took cognizance of the final report only recently.
The case of the prosecution as per the final report was that the accused being a resident of Erode, was conversant with Tamil, English, and Arabic languages and was a supporter of Islam Rule in India. It was alleged that he was a staunch supporter of a notorious terrorist viz., Osama-bin-laden and he always wanted to join Al-Qaeda movement and for that purpose he was following the ideology of ISIS and began collecting information through social media about ISIS.
It was further alleged that the accused wanted to become a member of ISIS for the purpose of causing injury to leaders of Hindu Organisations in and around the area where he was living and in order to carry out his plan, he was in constant touch with the ISIS member, through an App called Nekogram. He had chatted with him in the said App by using a nick name 'Abu Talha’ and the messages which were in Arabic language being translated in English showed that he intended to cause threat to the unity and integrity of India and had intended to commit murder of the members of the Hindu Organisations.
The High Court in view of the facts and circumstances of the case noted, “The above text messages do not indicate anywhere that the appellant/A1 had joined the proscribed terrorist organisation by name 'ISIS'. We also do not find any evidence adduced by the prosecution to prove that A2 is a member of ISIS. Even assuming that A2 is a member of ISIS, the text messages only indicate that the appellant/A1 wanted to be close to A2. Proximity to an individual is different from associating oneself with or professing to be associated with the terrorist association to further its activities.”
The Court said that it was the prosecution case in the final report that the accused conspired to commit terrorist acts in India against Hindu religious leaders belonging to the BJP and RSS and that the evidence disclosed that the conspiracy was to attack certain religious leaders, however, the respondent did not spell out how that would amount to a terrorist act as defined under Section 15 of the UAPA.
“… we make it clear that our observations with regard to the prima facie case under Sections 18 and 38(2) of the UA (P) Act are only made by taking into consideration the broad probabilities of the case and for the purpose of considering the bail application. … It is not known on which date the recommending authority received the evidence gathered by the investigating officer. In any case, it could not have been beyond the date of filing of the final report, and it has to be before the said date”, further said the Court.
The Court added that the Rules are mandatory in nature and are intended to ensure a speedy trial of the accused, especially in light of stringent bail provisions. It observed that the non-compliance of the mandatory provision would certainly be one of the grounds to hold that the right of the accused to a speedy trial under Article 21 of the Constitution of India is violated, and therefore, the bail application can be considered, notwithstanding the restrictions under Section 43-D(5) of the UAPA.
“… it has been one year since the Hon'ble Supreme Court dismissed the SLP on 02.12.2022. Further, the prosecution had also filed the final report on 12.01.2023. The accused has been in custody since July 2022. Therefore, we are of the view that, in view of the change in circumstances, this Court can entertain this bail application. … Even assuming that the materials collected by the prosecution may ultimately lead to a conviction, the detention pending trial cannot be indefinite”, remarked the Court.
Accordingly, the High Court allowed the appeal and granted bail to the accused on furnishing two sureties for a sum of Rs. 50,000/- each.
Cause Title- Asif Musthaheen v. State
