Karnataka High Court
Imran Ahmed @ Imran Khan vs National Investigating Agency on 22 December, 2021
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22nd DAY OF DECEMBER 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CRL. APPEAL NO.1640 OF 2021
BETWEEN:
IMRAN AHMED @ IMRAN KHAN
S/O ILYAS AHMED
AGED ABOUT 38 YEARS
R/AT NO.28, 7TH CROSS
KAVERI NAGAR, R.T. NAGAR POST
BANGALORE-560032.
... APPELLANT
(BY SRI. TANVEER AHMED MIR, ADV., A/W
SRI. KARTIK VENU, ADV., FOR
SRI. MOHAMMED TAHIR, ADV.,)
AND:
NATIONAL INVESTIGATING AGENCY
MINISTRY OF HOME AFFAIRS
GOI HYDRABAD BRANCH OFFICE
REP. BY SPL PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP TO VIDHANA SOUDHA
BANGALORE-560001.
... RESPONDENT
(BY SRI. P. PRASANNA KUMAR, SPL. PP)
---
THIS CRL.A IS FILED U/S.21(4) OF NATIONAL
INVESTIGATION AGENCY ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 27.08.2021 AND GRANT REGULAR BAIL
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TO APPELLANT IN SPL.C.C.NO.141/2021 WHEREIN THIS
APPELLANT IS ARRAIGNED AS ACCUSED NO.8, U/S
120(B),143,145,147,188,353 AND 427 R/W 34 AND 149 OF IPC,
SECTION 16, 18 AND 20 OF UNLAWFUL ACTIVITIES
(PREVENTION) ACT AND SECTION 2 OF THE PREVENTION OF
DESTRUCTION AND LOSS OF PROPERTY ACT, SAME IS PENDING
ON THE FILE OF XLIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL COURT FOR NIA CASES, BENGALURU (CCH-
50).
THIS CRL. APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 17.12.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ALOK ARADHE J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 21(4) of the National Investigation Agency Act, 2008 arises from an order dated 27.08.2021 passed by 49th Additional City Civil and Sessions Judge & Special Court (NIA Court) by which application preferred by the appellant under Section 439 of the Code of Criminal Procedure, 1973 has been dismissed.
2. Facts leading to filing of this appeal briefly stated are that the case of prosecution is that in the night at about 8.45 p.m. on 11.08.2020, a group of people gathered in front of K.G.Halli police station demanding the arrest of one Mr.Naveen P., nephew of Sri.R.Akhanda Srinivas Murthy, MLA of Indian National Congress from Pulakeshinagar, on the 3 ground that aforesaid Mr.Naveen had allegedly posted derogatory remarks against Prophet Mohammad in his facebook account. It is the further case of the prosecution that despite complaint and FIR against Mr.Naveen being registered, the mob gathered in front of K.G.Halli police station did not disperse and the police had to resort to lathi charge. The mob however started attacking the police and public properties on a large scale and damaged several public and private properties. It is also the case of prosecution that despite imposition of Section 144 of Cr.P.C. in and around the police station, the violation escalated and the mob started pelting stones all around. It is also stated that accused persons shouted slogans and attacked police station and police personnel who were on duty. It is further stated that unruly mob started vandalizing and setting fire to the vehicles parked at K.G.Halli police station and nearby places.
3. It is the case of the prosecution that accused persons were possessing iron rods, wooden sticks, inflammable substances, stones and other weapons. Despite the best efforts made by the police, the mob refused to 4 disperse and continued with violent acts. It is also stated that during the incident, 12 vehicles were damaged. The police inspector of K.G.Halli police station, Mr.Ajay Sarathy lodged a complaint and First Information Report was registered in Crime No.229/2020 on 12.08.2020 against 14 named persons including the appellant and some other unknown persons. On 17.08.2020, after obtaining permission from the jurisdictional Court, provisions of Section 15, 16, 18 and 20 of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as 'the 1967 Act' for short), were invoked.
4. It is the case of the prosecution that taking into account the gravity of the matter, the Central Government by an order dated 21.09.2020 handed over the investigation to the National Investigation Agency (hereinafter referred to as 'the NIA' for short). Accordingly, fresh First Information Report was registered on 21.09.2020 under Sections 143, 147, 148, 353, 333, 332, 436, 427 read with Section 149 of Indian Penal Code and Section 4 of the Prevention of Damage to Public Property Act, 1984.
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5. The appellant was arrested by NIA and was remanded to judicial custody. The appellant filed an application for grant of bail which was rejected by the Special Court by an order dated 27.08.2021 inter alia on the ground that allegations made against the appellant are serious in nature and overt act committed by him prima facie indicate that it amounts to "terrorist act", as defined under Sections 15 and 20 of 1967 Act. In the aforesaid factual background, this appeal has been filed.
6. Learned counsel for the appellant submitted that the role assigned to the appellant in the charge sheet cannot be read in isolation in the context of facebook post made by Mr.Naveen wherein he had posted derogatory remarks against Prophet Mohammad. It is further submitted that participation of the appellant in a protest in a peaceful manner before police station against the derogatory post and insistence for suitable action against aforesaid Naveen, does not amount to intention or premeditation on the part of the appellant to inflict violence. It is also urged that peaceful gathering assembled in front of police station, subsequently 6 became unruly and actions of the appellant cannot be described as terrorist act and his actions would fall within the scope and ambit of provisions of Indian Penal Code. It is also argued that the appellant has joined the investigation and has cooperated with the investigating agency.
7. It is also pointed out that a charge sheet has been filed against the appellant on the basis of statement made by 8 police personnel and 4 civilian witnesses. It is also submitted that aforesaid witnesses have not given any statement or have not filed any complaint against the appellant when the police investigated Crime No.229/2020. It is also urged that from the statement of witnesses cited in the charge sheet, it cannot be even prima facie inferred that appellant is involved in commission of offence under Sections 15, 16, 18 and 20 of the 1967 Act. It is pointed out that from the charge sheet the ingredients of Section 2(1)(o) and Section 15 of the 1967 Act are not made out. It is urged that there is no material on record with regard to the conspiracy to commit an act of terrorism. It is also urged that 138 persons had been named as accused and 240 7 witnesses are cited in the charge sheet and therefore, the chances of early trial are bleak.
8. It is also contended that charge sheet does not contain any incriminating material with regard to presence of the appellant on the scene of offence. It is also contended that powers of Constitutional Court in dealing with a prayer for grant of bail are not curtailed by restrictions contained in the statute namely Section 43D(5) of the 1967 Act. It is also urged that if the classic triple test is applied namely gravity of offence alleged, possibility of evidence being tampered and possibility of accused evading trial, if applied to the case of the appellant, the appellant will be entitled to bail. In support of aforesaid submission, reliance has been placed on the decisions in 'KARTAR SINGH Vs. STATE OF PUNJAB' (SC) (1994) 3 SCC 569, 'HITENDRA VISHNU THANKUR AND ORS. Vs. STATE OF MAHARASHTRA' (SC) (1994) 4 SCC 602, 'PEOPLE'S UNION FOR CIVIL LIBERTIES Vs. UNION OF INDIA' (SC) (2004) 9 SCC 580, 'STATE (NCT OF DELHI) Vs. NAVJOT SANDHU @ AFSAN GURU' (SC) (2005) 11 SCC 600, '(THE STATE) THE NATIONAL 8 INVESTIGATION AGENCY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA Vs. AKHIL GOGOI' (GAUHATI HIGH COURT) PARAS 18-28, 'KEHAR SINGH & ORS. Vs. STATE' (SC) (1988) 3 SCC 609, 'STATE Vs. NALINI & ORS. (SC) (1999) 5 SCC 253, 'UNION OF INDIA Vs. K.A.NAJEEB' (SC) (2021) 3 SCC 713, 'THWAHA FAISAL Vs. UNION OF INDIA' (SC) IN CRL.A.1302/2021 DECIDED ON 28.10.2021 AND 'MOHD. HAKIM Vs. STATE (NCT OF DELHI)' (DELHI HIGH COURT) IN CRL.A.170/2021 DECIDED ON 06.10.2021.
9. On the other hand, learned counsel for NIA submitted that appellant is the President of Social Democratic Party of India, K.G.Halli Ward and conspired to carry out terrorist act and illegal act of destroying public property with an intention to create fear psychosis in the mind of public in general. It is submitted that prima facie material is available in the charge sheet to show the involvement of the appellant in the mob violence which took place on 11.08.2020. It is also urged that bail application of accused Nos.14, 15, 16, 9 18, 19, 20, 21, 22, 23 and 24 in the same case are rejected by Special Court and the orders passed by the Special Court have been affirmed by another Division Bench of this Court in Crl.A.Nos.585/2021, 576/2021, 582/2021 and 745/2021 vide judgment dated 15.09.2021.
10. It is further submitted that intension to commit an act of terrorism need not exist at the time of commission of offence and the act committed by the appellant is covered under Section 15(1)(iv) of the 1967 Act. It is also urged that there is sufficient material to attract Section 43D(5) of the 1967 Act and therefore the appellant is not entitled to bail. In support of aforesaid submission, reliance has been placed on the decisions of the Supreme Court in 'R.VENKATA KRISHNAN Vs. CENTRAL BUREAU OF INVESTIGATION' (2009) 11 SCC 737, 'STATE THROUGH CBI Vs. DR.ANOOP KUMAR' (2017) 15 SCC 560, 'SIDDHARTH VASISHT Vs. STATE' (2010) 6 SCC 1 AND 'PRASHANT BHARTI Vs. STATE' (2013) 9 SCC 293.
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11. We have considered the submissions made on both sides and have perused the record. Section 43D(5) to (7) of the 1967 Act read as under:
43D(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.
(7) Notwithstanding anything contained in sub-
sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and 11 has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.
12. The aforesaid provision has been analysed by the Supreme Court in 'NATIONAL INVESTIGATING AGENCY Vs. ZAHOOR AHMED SHAH WATALI' (2019) 5 SCC 1 and in paragraph 23 it was held that it is the duty of the Court to be satisfied that there are reasonable grounds for believing that accusation against the accused is prima facie true or otherwise. It was further held that by its very nature the expression 'prima facie true' would mean materials / evidence collated by the investigating agency against the accused in First Information Report must prevail until contradicted or overcome or disapproved by other evidence. It was further held that averments made in the First Information Report should show the complicity of accused in commission of stated offence. The aforesaid decision was relied upon by Supreme Court in 'THWAHA FASAL Vs. UNION OF INDIA' (2021) SCC ONLINE 1000, wherein it was stated in paragraph 20 that the criteria for deciding the 12 application for grant of bail was laid down. Paragraph 20 of the aforesaid judgment reads as under:
"20. While deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI.
The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a 13 part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is."
13. On the touch stone of the criteria laid down by the Supreme Court while dealing with the prayer for grant of bail, we may advert to the material against the appellant. From the charge sheet, it is evident that police witnesses namely Mr.Ajay Sarathy, P1 (CW-1), Mr.Rajesh H., PSI (CW-3) Mr.Hiranayappa HC (CW-7) Mr.Sandeep, PC (CW-9), Mr.Chand Sab Pinjara (CW-13), Mr.Manjunatha (CW-15), Mr.Nagaraju (CW-23) and Mr.Santosh (CW-26), have identified the appellant along with other co-accused persons, who had set ablaze a bike parked near K.G.Halli police station by pouring petrol on it. The aforesaid witnesses have also stated that the appellant convened a meeting before the incident and instigated the other accused persons to commit violence. A civil witness namely Mr.Athet Sameer (CW-36) who was working in the office of Social Democratic Party of India has stated that on 11.08.2020, before the riots took 14 place at K.G.Halli police station, a meeting was held which was attended by the appellant, Nasiruddin and others.
14. Syed Kaleem (CW-38) has also stated that he attended the meeting on 11.08.2020 from 20.45 hrs to 21.15 hrs which was headed by Nasiruddin who is absconding. It has further been stated by him that the appellant attended the meeting. Mohd. Arafath (CW-37) has stated that appellant attended the meeting and went to K.G.Halli police station after the meeting.
15. Thus, from the charge sheet it is evident that the appellant is the President of Social Democratic Party of India, K.G.Halli ward. It is also evident that before the riots took place on 11.08.2020, appellant attended the meeting between 20.45 hrs and 21.15 hrs. The presence of the appellant on the scene of the incident as well as his participation in burning of a vehicle parked outside the K.G.Halli police station is also established. From the material on record, it is evident that the appellant has performed a prominent role in riot and mob violence. The appellant being the President of Social Democratic Party of India, K.G.Halli 15 ward, his possibility of interfering with the fair trial by influencing or threatening the witnesses cannot be ruled out.
16. The act committed by the accused along with other accused persons on 11.08.2020 as stated in the charge sheet discloses the conspiracy to commit the aforesaid acts of violence and destruction of public properties and to create a fear psychosis in the mind of law abiding citizens. There is no particular form or means by which a state of terror can be struck in the minds of people and the purpose of a terrorist act is to create fear psychosis in the minds of public in general. By his activity, the appellant has attempted to create fear and panic amongst public in general.
17. Section 18 of the 1967 Act would take within its view the persons who abet, incite, knowingly facilitates the commission of terrorist act. Section 15 of the 1967 Act provides that usage of inflammable substance to cause injuries to a person or damage property with an intention to strike terror amounts to a terrorist act. From the charge sheet, it is evident that petrol was used while attacking the police personnel and damaging the public property. 16 Therefore, prima facie, provisions of Section 15 of the 1967 Act would be attracted. The acts attributed to the appellant were with an intention to strike terror in general public. A coordinate Bench of this Court, while dealing with bail applications of other co-accused persons, has rejected the same in view of provision contained in Section 43D(5) of the 1967 Act.
18. For the aforementioned reasons, provisions of Section 43D(5) of the 1967 Act are applicable to the facts and the material in the charge sheet indicates that there are reasonable grounds to believe that accusation against the appellant is prima facie proved. The appellant is therefore held not entitled to be released on bail.
In the result, this criminal appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE RV