Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Mad) 3346

IN THE HIGH COURT OF JUDICATURE AT MADRAS
HON’BLE MR. JUSTICE S.S. SUNDAR, HON’BLE MR. JUSTICE SUNDER MOHAN, JJ.
Asif Musthaheen – Appellant
Versus
State – Respondent
Criminal Appeal No. 542 of 2023
Decided On : 12-12-2023

Advocates:
Advocate Appeared:
For the Appellants : T. Mohan, S. Veeraraghavan.
For the Respondent: A. Gokulakrishnan.

IMPORTANT POINT
The court established that for offenses under the UA(P) Act, mere association with a terrorist organization is insufficient for conviction; intent to further the organization's activities must be proven. Additionally, procedural violations regarding prosecution sanction can impact the right to a speedy trial.

Headnote:
Bail - Unlawful Activities (Prevention) Act, 1967 - Sections 18, 38(2), 43-D(5) - The court analyzed the statutory provisions of the UA(P) Act, particularly Sections 18 and 38(2), which address conspiracy to commit terrorist acts and association with terrorist organizations. The court emphasized the necessity of proving intent to further terrorist activities and the requirement of reasonable grounds for believing accusations are prima facie true. The court also highlighted the mandatory nature of the prosecution sanction rules, which, if violated, could infringe upon the accused's right to a speedy trial under Article 21 of the Constitution. These interpretations influenced the court's decision to grant bail despite the serious allegations against the appellant.
Fact of the Case:
The appellant was arrested for offenses under the IPC and the UA(P) Act, accused of supporting terrorist activities and conspiring to attack Hindu leaders. Multiple bail applications were dismissed prior to the current appeal, which challenges the latest dismissal of bail by the trial court.
Finding of the Court:
The court found that while there were serious allegations against the appellant, the prosecution failed to establish a prima facie case under Sections 18 and 38(2) of the UA(P) Act. The court noted the lack of evidence proving the appellant's intent to further terrorist activities and highlighted procedural violations regarding the timely sanction for prosecution.
Issues: Whether the appellant is entitled to bail considering the serious charges under the UA(P) Act and the procedural compliance regarding sanction for prosecution.
Ratio Decidendi: The court held that the statutory restrictions under Section 43-D(5) of the UA(P) Act do not preclude bail if the accused has been in custody for an extended period without a trial, especially when procedural violations infringe upon the right to a speedy trial. The court emphasized that mere association with a terrorist organization does not suffice to establish guilt without intent to further its activities.
Final Decision: The appeal was allowed, and the appellant was granted bail under specific conditions, considering the prolonged detention and the lack of a prima facie case against him.

JUDGMENT :

SUNDER MOHAN, J.

1. The instant appeal has been preferred by the accused, challenging the order passed in Crl.M.P.No. 1328 of 2023 dated 17.04.2023, by the learned Principal District and Sessions Judge, Erode, dismissing the bail application filed by him.

2. The appeal arises under the following circumstances:

(i) The appellant was arrested on 26.07.2022 at 6.00pm for the offences under Sections 121, 122 and 125 of the IPC r/w 18, 18A, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the UA (P) Act). During the investigation, the appellant had preferred a bail application in Crl.M.P.No. 2361 of 2022, which was dismissed on 24.08.2022. Criminal Appeal preferred before this Court in Crl.A.No. 999 of 2022, against the said order was dismissed on 20.10.2022. The appellant challenged the order of this Court in SLP No. 10980 of 2022 before the Hon'ble Apex Court. The Hon'ble Apex Court dismissed the said bail application, holding that there was prima facie case against the appellant.

(ii) The appellant preferred Crl.M.P.No. 4081 of 2022, seeking bail under Section 167(2) of Cr.P.C. The said petition was dismissed on 05.01.2023 by the learned Principal District and Sessions Judge, Erode. Thereafter, the appellant preferred Criminal Appeal before this Court in Crl.A.No. 44 of 2023, and the same was dismissed on 03.04.2023. This Court, while dismissing the said appeal, had given liberty to the appellant to file another bail application canvassing changes in circumstances, if any.

(iii) The trial Court dismissed the third bail application in Crl.M.P.No. 1328 of 2023 by order dated 17.04.2023, as against which, the appellant has preferred the instant appeal.

3. In the meantime, the prosecution filed the final report on 12.01.2023. It is reported that the learned Magistrate has taken cognizance of the final report only recently.

4. The case of the prosecution as per the final report is that the appellant is a resident of Erode and he is conversant with Tamil, English and Arabic languages; that he is a supporter of Islam Rule in India and he is a staunch supporter of a notorious terrorist viz., Osama-bin-laden; that he always wanted to join Al-Qaeda movement; that for that purpose he has been following the ideology of proscribed terrorist organisation viz., Islamic State of Iraq and Syria (ISIS) and began collecting information through social media about ISIS; that the absconding accused(A2) is the member of ISIS having Head Quarters at Syria; that the appellant gained proximity with the said accused (A2) and wanted to become a member of the said banned organisation for the purpose of causing injury to leaders of Hindu Organisations in and around the area, where the appellant is living; that in order to carry out his plan, the appellant was in constant touch with A2, through an App called Nekogram; that the appellant had chatted with A2 in the said App by using a nick name 'Abu Talha'; that the messages which were in Arabic language and translated in English would show that the appellant intended to cause threat to the unity and integrity of India and had intended to commit murder of the members of the Hindu Organisations; and that the appellant is guilty of the offences under Sections 18 and 38(2) of the UA (P) Act.

5.......

(i) Mr.T.Mohan, learned senior counsel appearing for the appellant would submit that the accused has been in custody since July 2022 and that the nature of the allegations is such that it does not warrant a prolonged indefinite pre-trial detention. The respondent had not recovered any incriminating materials except for the mobile phone said to have been used by the appellant to communicate with A2.

(ii) The learned senior counsel submitted that even assuming that the allegations against the appellant that he communicated with A2 are true, that does not constitute the offences alleged against the appellant.

(iii) The learned senior counsel submitted that though the final report