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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. VAIDYANATHAN, A.D. JAGADISH CHANDIRA, JJ.
Bava Bahrudeen @ Mannai Bava – Appellant
Versus
Union of India – Respondent
Criminal Appeal No. 487 of 2022
Decided On : 15-07-2022
Unlawful Activities Prevention Act, 1967 - Sections 13(1)(b), 38, 39 Indian Penal Code - Sections 120(B), 124(A), 153A, 153B, 295A, 505(1)(b), 505(1)(c), 505(2) National Investigation Agency Act, 2008 - Section 21(4) The High Court examines the provisions of the Unlawful Activities Prevention Act, 1967, Indian Penal Code, and National Investigation Agency Act, 2008. It focuses on Sections 13(1)(b), 38, 39 of the Unlawful Activities Prevention Act, which are relevant to the charges against the appellant. It also considers Sections 120(B), 124(A), 153A, 153B, 295A, 505(1)(b), 505(1)(c), 505(2) of the Indian Penal Code, which are the offenses alleged against the appellant. The High Court reviews the provisions to determine the applicability and interpretation of the charges and their impact on the bail application.
Fact of the Case:
The appellant, an Islamic scholar, has been charged with offenses under IPC and Unlawful Activities Prevention Act for posting offensive and instigating material on Facebook. The appellant argues that the posts do not constitute the alleged offenses and that he has been falsely implicated. He also challenges the constitutionality of Section 124A IPC. The respondent opposes bail, claiming that the appellant is an active leader of Hizb-ut-Tahrir and has engaged in radicalizing activities. The Special Court dismissed the bail application, invoking Section 43D(5) of Unlawful Activities Prevention Act. The High Court finds that the posts do not advocate for the overthrow of the government through violent means and do not attract Section 124A IPC. The appellant's organization is not a proscribed or terrorist organization. Section 13(1)(b) of Unlawful Activities Prevention Act does not fall within the relevant chapters of the Act, and the Special Court erred in invoking Section 43D(5). The High Court grants bail to the appellant, considering the stage of the case, the absence of minimum punishment, and the likelihood of trial delay.
Finding of the Court:
The High Court examines the contents of the Facebook posts and concludes that they do not constitute the alleged offenses. It also considers the constitutionality of Section 124A IPC, which is under challenge. The High Court finds that the appellant's organization is not proscribed or deemed a terrorist organization. It determines that Section 13(1)(b) of Unlawful Activities Prevention Act does not fall within the relevant chapters of the Act, and the Special Court erred in invoking Section 43D(5) for dismissing the bail application. The High Court grants bail to the appellant, taking into account the stage of the case, absence of minimum punishment, and likelihood of trial delay.
Ratio Decidendi: The High Court holds that the appellant's Facebook posts do not constitute the alleged offenses and that Section 124A IPC is under challenge. It determines that the appellant's organization is not proscribed or deemed a terrorist organization. It concludes that Section 13(1)(b) of Unlawful Activities Prevention Act does not fall within the relevant chapters of the Act, and the Special Court erred in invoking Section 43D(5) for dismissing the bail application. The High Court grants bail to the appellant, considering the stage of the case, absence of minimum punishment, and likelihood of trial delay.
Result: The High Court sets aside the order of the Special Court and grants bail to the appellant, subject to certain conditions.
JUDGMENT :
Prayer: Criminal Appeal filed under Section 21(4) of National Investigation Agency Act, 2008 to set aside the order dated 13.4.2022 passed by the Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Poonamallee, Chennai-600 056 in Crl. M.P. No. 109 of 2022 and the same was dismissed on 13.4.2022 in C.C. No. 2 of 2021 (R.C. No. 08/2021/NIA/DLI) of the National Investigation Agency and enlarge the appellant on bail.
1. The Appeal has been filed seeking to set aside the order dated 13.4.2022 passed by the learned Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial for Bomb Blast Cases) Poonamallee, Chennai 600 056 in Crl. M.P. No. 109 of 2021 in C.C. No. 2 of 2021 (R.C. No. 08/2021/NIA/DLI) of the National Investigation Agency and enlarge the appellant on bail.
2. The appellant, who has been arrayed as A2 in R.C. No. 8/2021/NIA/DLI, stands charged for the offences under Sections 120(B) read with 124(A), 153A, 153B, 505(1)(b), 505(1)(c), 505(2) of IPC and Section 13(1)(b) of Unlawful Activities Prevention Act, 1967 and arrested and remanded to judicial custody on 16.9.2021, has filed the bail application in Crime No. 109 of 2022 before the Trial Court and it was dismissed on 13.4.2022. The present appeal has been filed seeking to set aside the order of dismissal and enlarge the appellant on bail.
3. Brief facts of the prosecution case:
(ii) The crux of the complaint is as under:
The complainant M. Ravindran, Sub Inspector of Police is serving as such at C1 Thideer Nagar (L&O) Police Station. He is a regular user of social network. On 1.12.202 at about 20.30 hours, when he was browsing his Facebook, he came across postings related to Islamic rule over world i.e. Khalifa and its power. On further search in the web, he found that those posts were explaining the activities of Islam and he noticed a post which reads as under:
“If we were to believe Allah as our ruler, Muhammad as our leader, Quaran as our constitution, means fundamentalism then fundamentalist we are. Al Quaran is being burnt. Prophet Mohammed is ridiculed. We are being killed like sheep without shepherd being killed by wolf. Muslim youths are found of western culture. One of the reason for these are because of not following the Tawheed Hakimiyaah, when Tawheed Hakimiyaah is upheld, the Muslims would get their lost pride, the west is determined that the Muslims should not attain it. Lot of Muslim intellectuals also are with them. Muslims couldn't complete the duty of Islam only by eliminating Pidayaa. Fake news such as Quaran being burnt, Mohammed Nabi being ridiculed and the Islamic people were instigated against other religion people with hate and enmity because of that they are provoking riots against other religions.”
The complainant also noticed another post containing hate messages against Hindus instigating Muslim people against Hindu people which reads as under:
“If it is told that not to criticize Hindu religion, ask them to remove the caste system from Hindu religion. If it is not possible, then they must be sent to Islam. Expose their politics which calls them as Hindus and torture them by imposing taxes Ask them what are the good deeds done by Hindutva to Hindu people till now. If he criticizes other religions ask about their economic policies. Tear their face mask. There are no economic policies like the policies of Islam. Ask them whether in any any of the epics the word HINDU has been mentioned.....”
According to the complainant, the posts instiga
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