Attending jihadi meetings, purchasing training materials, and organising training shelters for members of an organisation which is not banned by the government under the Unlawful Activities (Prevention) Act (UAPA), will not amount to ‘terrorist act’ under Section 2(k) of UAPA, the Karnataka High Court recently held [Saleem Khan and Anr v. State of Karnataka]
A person charged with terror offences under UAPA was, therefore, granted bail by a Division Bench of Justice B Veerappa and Justice S Rachaiah, on the ground that the group he was associated with was not a banned organization.
“Admittedly, in the present case, the prosecution has not proved that accused no 11 has associated himself with any organization which is prohibited or barred under the provisions of the UA(P) Act. Admittedly, he is a member of Al-Hind group. It is not a prohibited organization under the Schedule of the UA(P) Act, 1967 and the chargesheet material does not depict that he was convicted for the offences involved or crimes or terrorist activities… there are no reasonable grounds for for believing the accusation against the accused no 11 prima facie true,” the Court said.
The Court noted that as per the chargesheet, the accused being a member of the Al-Hind group, had attended several conspiracy meetings, jihadi meetings, and undergoing pistol and bow and arrow training and purchased training materials.
However, that would not amount to offence under UAPA, the Court said since the organisation was not banned by the government.
“Mere attending meetings and becoming member of Al-Hind group, which is not a banned organization as contemplated under the Schedule of UAPA and attending jihadi meetings, purchasing training materials and organizing shelters for co-members is not an offence as contemplated under the provisions Section 2(k) and 2(m) of the Unlawful Activities Prevention Act (UAPA),” the Court said.
It was the case of the prosecution that based on information received by the police, a case was registered against 17 accused persons. The case was transferred to the National Investigation Agency (NIA), which during the probe found more information about the present appellants in the case. A chargesheet was filed against them under the provisions of Sections 18 (punishment for conspiracy) 18A (organising of terrorist camps) 20 (punishment for being member of terrorist gang or organisation) and 39 (offence relating to support given to a terrorist organisation) of the Unlawful Activities (Prevention) Act (UAPA), and Section 120B (criminal conspiracy) of the Indian Penal Code (IPC).
The two accused filed for bail, which was rejected by the trial court on the grounds that there was sufficient material indicating their involvement in the alleged crime. The accused then approached the High Court, appealing against the decision of the trial court.
The counsel for the appellants-accused argued that the order of the trial court was erroneous, as both of them are members of the Al-Hind group which is not a banned terrorist organization as contemplated under Schedule 1 (Terrorist Organizations) of the UAPA. While the prosecution had alleged that the petitioners attended conspiracy meetings and jihadi meetings, there was nothing mentioned about the date and time they did so, or evidence about them having attended pistol training classes, etc.
He further argued that there must be material abetting, advising, inciting or directing any one to do a terrorist act under Section 18 of the UAPA, and the punishment for being a member of a terrorist gang or organization could not be attracted against them.
The Special Public Prosecutor on the other hand submitted that there were averments in the chargesheet depicting that the accused had attended several conspiracy meetings, and had been recruited to the Al-Hind group. One of them regularly attended jihadi and martial arts classes at Al-Hind office late at night, and training classes to handle a pistol and bow and arrow.
The Court, while considering the case, noted that when such an application under UAPA is filed by the accused, the court has to consider whether there are reasonable grounds for believing that the case against them is prima facie true. A prima facie case under Section 43-D (modified application of certain provisions) of UAPA is not a mini trial, and the court has to consider the material in the chargesheet as it is.
Regarding the material in the chargesheet, the Court observed that it clearly depicted allegations against one of the accused as being a member of the Al-Hind group, attending several conspiracy meetings, jihadi meetings, and undergoing pistol and bow and arrow training and purchasing training materials such as tents, sleeping bag, knives and organized shelter for Al-Hind group members in Gujarat.
But merely attending meetings and becoming a member of a group which is not a banned organization under UAPA is not an offence as contemplated under Sections 2(k) (terrorist act) or 2(m) (terrorist organization) of the Act.
It is necessary to strike a balance between the mandate under Section 43(D) on one hand, and the rights of the accused on the other, observed the Court, while holding that the first appellant-accused was entitled to be granted bail.
Regarding the second accused in the matter, the Court noted that it was clearly indicated that he was associated with contacting an unknown ISIS handler through the Dark Web. He had also taught Dark web operations, helped in preparing fake Aadhar cards, and was involved in furthering the activities of ISIS in India.
Observing that there are reasonable grounds for believing that the accusation against the other accused, Mohammed Zaid is prima facie true, the Court held that he is not entitled to bail.
The court thus allowed the criminal appeal in part, granting bail to appellant no. 1 on a bond of ₹2 lakh with two sureties, to not influence or intimidate the prosecution witnesses and report before the concerned Investigation Officer when required. He was also directed to surrender his passport. Appellant no. 2 was denied bail.
Advocate S Balakrishnan represented the appellants and Special Public Prosecutor Prasanna Kumar represented the State.
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