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MADRAS HIGH COURT
S.S. Sundar and Sunder Mohan, JJ.
Mohamed Irfan – Appellant
versus
Union of India represented by the Inspector of Police – Respondent
Criminal Appeal No.340 of 2023
Decided on 9.11.2023
(A) Criminal Procedure Code, 1973 – Section 439 – Unlawful Activities (Prevention) Act, 1967 – Section 43-D(5) – Bail application – Involvement in terror activities – While considering a discharge petition and assessing prima facie case, even grave suspicion is sufficient to frame charge – However, while denying liberty of a person, test to assess prima facie case would be different – Liberty of a person cannot be denied on grave suspicion alone – Accusation must be not only grave but materials in support of accusation must be cogent at whatever stage bail application is considered – There must be something more than grave suspicion while holding that there is a prima facie case to deny bail. (Para 8)
(B) Unlawful Activities (Prevention) Act, 1967 – Section 43-D (5) – Criminal Procedure Code, 1973 – Section 439 – Bail application – Involvement in terror activities – Restriction in proviso to Section 43-D (5) of UA (P) Act is a slight departure from bail jurisprudence, that bail is rule and jail is an exception – It only means that while considering bail application, Courts cannot grant bail on mere asking and there must be reasons for grant of bail – However, restriction found in proviso to 43 (5) of UA(P) Act cannot be read to mean that basic human right or constitutional right of a person is taken away – Pre-trial detention is an anathema to Constitution besides being in violation of basic human right – Where Constitutional Courts find that there is an infraction of fundamental right under Article 21 of Constitution of India, rigours of proviso would melt down – Liberty of a person pending trial cannot be ordinarily curtailed unless law and facts warrant such curtailment – Appellant has been in custody since February 2022 – Even assuming that materials collected by prosecution may ultimately lead to conviction, detention pending trial cannot be indefinite – Bail granted. (Paras 8, 11 and 12)
Result: Appeal allowed. Bail granted.
JUDGMENT
Sunder Mohan, J.—The captioned appeal has been preferred by the petitioner, challenging the order in Crl.M.P.No.718 of 2022 dated 05.01.2023 passed by the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai, at Poonamalle, Chennai – 600 056, dismissing his bail application.
2. The brief facts leading to the filing of the above appeal are as follows:—
(a) According to the prosecution one Sathick Batcha (A1) was a prime accused in Mayiladuthurai, P.S. Crime No.1601/2020 and 164/2022. On specific information that he was in possession of arms and weapons, a special police team on 21.02.2022, at about 10.00 hours, intercepted a black colour Mahindra Scorpio bearing Reg.No.TN OF IL-1446 at Nidur – Mayiladuthurai Railway gate travelling from Nidur to Mayiladuthurai. The appellant and the other accused were found in the car. A case in Cr.No.165/2022 was registered on the file of Mayiladuthurai Police Station for the offence under Sections 148 and 506 (ii) IPC r/w Section 28 of the Arms Act, 1959. All the accused were arrested. One laptop with adapter, one stainless steel hand-cuff, one I-Phone, one OPPO Phone, one power bank, one V8 video shooting pen, one GITE Wireless router, one hard disk, one metal air gun, a small box containing pellets and a Mahindra Scorpio with registration TN-07-BL-1446 were seized from the accused.
(b) On 25.02.2022, an alteration report was filed by the Investigating officer to include Section 307 of the Indian Penal Code. On 06.03.2022, another alteration report was filed by the Investigating officer before Judicial Magistrate-I, Mayiladuthurai, for including the offences under Sections 13, 38, 39 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the UA (P) Act).
(c) The Government of India, in exercise of powers conferred under Section 6 (5) r/w Section 8 of the National Investigation Agency Act, 2008 (hereinafter referred to as the NIA Act), entrusted the investigation of the case to the respondent/National Investigation Agency (NIA).
(d) The respondent re-registered an FIR in R.C.NO.20/2022/NIA/DLI on 30.4.2022 under Sections 148, 506 (ii) IPC, 1860, and Sections 13, 38, 39 of the UA (P) Act, and Section 28 of the Arms Act, 1959.
(e) On investigation, the respondent filed a Final Report after obtaining sanction against the appellant and others which was taken cognizance in Spl.S.C.No.2 of 2022 by the Trial Court. The Government of India accorded sanction for prosecuting the appellant for the offences under Sections 18 and 39 of the UA (P) Act.
(f) It is the case of the prosecution as seen from the Final Report that A1 and A3 had been indulging in anti-national activities in the name of Khilafah Party of India, and Intellectual Students of India (ISI); that A1 is a strong and a devote supporter of ISIS; that Khilafah Party of India and Khilafah Front of India, are manifestations of Islamic State/ISIS/Daesh outfit; that A3 was associated with A1, since 2019; that A1 to A3 had discussed about establishing Islamic rule in India, knowing fully well that A1 had links with ISIS; that A3 participated in conspiracy meetings conducted at Tamil Nadu Haj Services Society by A1 and others for discussing about ideologies of ISIS, and for promoting Khilafah Party of India, which was formed with a motto to establish Islamic rule in India by waging war and overthrowing the Government lawfully established; that A3 had conspiracy meetings with other accused and hence, A3 has committed the offence under Section 120-B of the Indian Penal Code and Sections 18 and 39 of the UA (P) Act, 1967.
(g) The appellant filed the bail application before the Special Court under the National Investigation Agency Act, 2008, Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamalle, Chennai – 600 056, in Crl.M.P.No.718 of 2022. The Special Court dismissed the said bail application, holding that there are reasonable grounds to believe that the appellant had com
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