Karnataka High Court
Mr. Mazin Abdul Rahman @ Mazin vs National Investigation Agency on 8 February, 2024
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NC: 2024:KHC:5412-DB
CRL.A No. 2248 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.2248 OF 2023
BETWEEN:
Mr. Mazin Abdul Rahman @ Mazin
S/o Ibrahim Rahmathulla,
Aged about 22 years,
R/at #4-3/23, Babbukatte,
Near Hira College, Thokuttu
Permannuru, Mangaluru,
Dakshina Kananda District-575 017.
...Appellant
(By Sri. S.Balakrishnan, Advocate)
Digitally AND:
signed by C K
LATHA
Location: National Investigation Agency
HIGH COURT
OF Bengaluru,
KARNATAKA
Rep. by Spl.PP,
High Court Building,
Bengaluru-560 001.
...Respondent
(By Sri. P.Prasannakumar, Spl.PP)
This Criminal Appeal filed under Section 21(4) of NIA Act,
praying to order to set aside the order of Sessions Court in
Spl.C.No.706/2023 dated 16.10.2023 by XLIX Additional City
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CRL.A No. 2248 of 2023
Civil and Sessions Judge (Special Judge for Trial of NIA Cases),
CCH-50 at Bengaluru and to enlarge him on bail in
R.C.No.46/2022/NIA/DLI passed by the file of National
Investigation Agency, Bengaluru, for the offence p/u/s 120B,
121A of IPC and u/s 18, 20 and 38 of UA(P) Act, pending
before the court of XLIX Addl. City Civil and Sessions Judge
(Special Judge for Trial of NIA Cases) CCH-50, Bengaluru.
This Criminal Appeal coming on for admission, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal is filed by accused No.6 in Spl.Case No.706/2023 on the file of XLIX Addl. City Civil and Sessions Judge, [Special Judge for trial of NIA Cases], (CCH-50), Bengaluru. His application for bail under Section 439 Cr.P.C., was dismissed by order dated 16.10.2023 and hence this appeal under Section 21(4) of National Investigation Agency Act, 2008.
2. The background is that on 15.8.2022 an FIR in crime no.334/2022 was registered at -3- NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 Doddapete Police Station, Shivamogga in connection with stabbing a person by name Prem Singh. The investigation of this case disclosed terrorist activities by a banned terrorist organization. The investigator made a report of the conspiracy to further the terrorist activity to the police station and based on this report, a separate FIR in crime No.325/2022 was registered. Noticing the gravity of offence, National Investigation Agency took over investigation on the direction of Government of India. NIA registered the case as RC-46/2022/NIA/DLI for the offences under sections 120B, 121, 121A of IPC and sections 18, 20 and 38 of Unlawful Activities (Prevention) Act. The name of the appellant appears in the supplementary charge sheet as accused no.6.
3. Heard Sri S.Balakrishnan, learned Advocate for the appellant and Sri P.Prasanna -4- NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 Kumar, learned Spl. Public Prosecutor for respondent/NIA.
4. Sri S.Balakrishnan, taking us through the supplementary charge sheet in which the name of the appellant appears, argued that except the allegation that the appellant involved in conducting recce there are no allegations against him indicative of his involvement in anti national activities. The charge sheet discloses that accused No.2 induced the appellant for conducting recce. This allegation is also based on the voluntary statement said to have been given by accused No.2. To connect accused No.2 with the appellant, the investigating officer relies on Call Detail Records ('CDRs' for short), but the phone does not stand in the name of the appellant, it stands in the name of appellant's mother. There is no evidence that the appellant made use of the telephone of his mother. Charge sheet also indicates IPDR chats in -5- NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 which the name of the appellant is not there. The social media analysis shows that most of the allegations are against the other accused. Appellant was a college student and accused No.2 was his classmate. Because of this friendship an allegation has been made that the appellant was radicalized by accused No.2 to wage war against India. There are no details as to when, where and how the appellant did recce. It appears that since the laptop of the appellant contained some downloaded information, he is projected to be a member of conspiracy about which there are no materials at all. The participation of the appellant in any of the anti social activities is not forthcoming. Section 15 of Unlawful Activities (Prevention) Act, ('UAP Act' for short) defines the expression 'Terrorist Act'. Section 16 of the said Act prescribes punishment for committing a terrorist act. Unless the entire accusation satisfies the requirement of Section 15, one cannot be -6- NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 punished under Section 16 of the Act. There are no materials to bring the activities of the appellant within the scope of Section 15 of the Act and therefore Section 16 is not applicable. Referring to Section 18 of the Act he argued that the charge sheet does not indicate any material to hold that the appellant was a member of conspiracy.
5. Even if it is assumed that based on the materials found in the laptop of the appellant he had developed an intention to commit any of the offences under the Act, unless the intention resulted in an action amounting to crime the appellant cannot be punished. Since there are no materials indicating the involvement of the appellant in any activity which would amount to waging war against India, invoking the offences under the UAP Act apparently appears to be incorrect.
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6. Sri. Balakrishnan argued that according to Section 43D(5) of UAP Act the accusation against the appellant must prima-facie appear to be true. Here if the entire charge sheet is scrutinized, it cannot be said that there is prima- facie truth in the accusations made against the appellant and therefore he becomes entitled to claim bail. His submission is that the trial court has wrongly evaluated the materials to deny bail to the appellant. The accused has been in custody since 10.01.2023. He is in his prime youth. It is not as though he is not available for trial. In a case of this nature there are instances that the courts have granted bail and in this regard he refers to some judgments to which we will refer later.
7. The argument of Sri. P.Prasanna Kumar is that the final report exposes the criminal activities of the appellant. He conducted recce of the -8- NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 targets for the purpose of conducting arson being in close contact with the other accused. The intention of all the accused was to wage war against India. The appellant used several encrypted communication platforms and received several incriminative materials. The CDR indicates close proximity of the appellant with accused No.2. The statements of the witnesses interrogated by the investigator show that appellant had downloaded the materials/preachings from dark web. The witnesses have spoken about larger conspiracy hatched by all the accused and how accused No.2 radicalized the appellant. There is clear evidence that the appellant and accused No.2 conducted recce of Hindu snake god statute at Assaigoli near Konaje, Mangaluru with intent to conduct arson. The statement of the appellant in the presence of independent witnesses along with the statement of CW193 would clearly indicate that the appellant was involved with accused No.2, and -9- NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 his active participation in furtherance of the conspiracy with co-accused persons. This falls within the ambit of section 18 of UAP Act. It is not only the conspiracy, but also aiding, advocating, assisting, abetting, facilitating commission of a terrorist act are punishable under Section 18 up to life imprisonment. The allegations against the appellant are not false and baseless, they are supported by the cogent materials.
8. Certain digital devices seized from the possession of the appellant were sent to CERT, New Delhi/FSL for the purpose of forensic examination. Based on the report dated 05.04.2023 obtained from CERT, the investigating officer extracted relevant materials and produced the same by way of a scrutiny report dated 31.05.2023 (Document No.198). This report is an indication of involvement of the appellant in anti- national activities. Sri. Prasanna Kumar argued
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 that the appellant possessed certain materials consciously. All those materials are radicalizing in nature and indicate support to the ideology of banned terrorist organization. Therefore it cannot be said there are no materials against the appellant.
9. He would argue that according to section 43 D (5) of the UAP Act, the court has to arrive at a satisfaction that the accusation is prima facie true. Once the materials indicate that the accusations are prima facie true, the consideration of other factors for granting bail does not arise as has been made clear by the Supreme Court in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]. Therefore it is his argument that the appellant was just a friend of accused no.2 when he was a student of engineering and that he is still in his
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 prime youth are not the reasons to be considered for granting bail.
10. Sri. Prasanna Kumar further argued that the trial court has applied its mind to draw an inference that there is prima facie truth in the materials collected by the investigating officer. This appeal is against order of rejection of bail. If the decision of the trial court based on materials appears to be justifiable, there cannot be interference with the impugned order. Hence he argued for dismissing the appeal.
11. In reply Sri. S.Balakrishnan submitted that the charge sheet does not indicate how the materials against the appellant were collected. The appellant cannot be implicated merely for the reason that he had downloaded the information available on the social media. Moreover the entire case of the prosecution appears to be based on the alleged voluntary statement which is hit by
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 Sections 25 and 26 of the Evidence Act. The materials projected against the appellant are not authenticated and they cannot be used against him. The pictures of the wall writings produced by the NIA do not become primary evidence as anybody can write on the walls. Except this kind of materials, NIA does not possess any piece of evidence indicating active and direct involvement of the appellant.
12. We have considered the arguments. The matter before us is an appeal filed under Section 21(4) of the National Investigation Agency Act, 2008. Since this is an appeal, the approach of this court is to examine the correctness of the order impugned, of course by reassessing the materials. If the conclusions drawn by the trial court are found to be correct, there cannot be interference. Section 43(D) of the UAP Act is relevant to be referred to here. Section 43(D) reads as below:
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 "43(D). Modified application of certain provisions of the Code:
(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed according.
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), -
(a) the references to "fifteen days",
"ninety days" and "sixty days",
wherever they occur, shall be
construed as references to "thirty
days", "ninety days" and "ninety
days" respectively; and
(b) after the proviso, the following
provisos shall be inserted, namely:-
"Provided further that if it is not possible to complete the investigation
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.
(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that -
(a) the reference in sub-section (1) thereof-
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(i) to "the State Government" shall be construed as a reference to "the Central Government or the State Government.";
(ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State Government, as the case may be";
and
(b) the reference in sub-section (2) thereof, to "the State Government" shall be construed as a reference to "the Central Government or the State Government, as the case may be".
(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.
(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:
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 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 has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing."
13. The proviso makes it very clear that on perusal of the case diary or the report made under section 173 of Cr.P.C., if the court arrives at an opinion that there are reasonable grounds for believing that the accusation against a person is
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 prima facie true, such person shall not be released on bail. The meaning of the expression prima facie true is elaborately dealt with by the Hon'ble Supreme Court in the case of Zahoor Ahmad Shah Watali. It is held in para 23 "23.By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act."
14. If the impugned order is read the trial court judge has recorded reasons that there are materials to show that accused no.6 was a close associate of accused no.2, who shared many photographs and videos of Islamic State Jihadi Ideology. Accused no.2 radicalized and recruited accused no.6 i.e., the appellant herein for the cause of proscribed terrorist organization i.e., Islamic State. Accused no.6 accompanied accused no.2 to conduct recce of Hindu temples for conducting arson and also attempted to radicalize LW195 by sharing a link related to ideology of Islamic State. There are materials indicating that accused nos.1 to 3 were in touch with online handler 'Colonel' for the cause of Islamic State and thus they radicalized and recruited the appellant
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 for conducting recce for arson attacks. They joined many courses and attended camps to improve their skills and they searched for hide outs in the forest area to hide after commission of crime. They also searched for hide outs in Bengaluru city. They conducted trial blasts. The statement of LW193 shows that accused no.2 was contacting the appellant over phone every now and then and once accused no.6 accompanied accused no.2 for surveying the places of target. LW195 is the cousin of appellant no.6 and his statement shows that accused no.6 shared with him a link of Anwar Al Avalaki, a radicalized preacher and discussed something related to Ahmed Musa Jibril, a convicted terrorist in USA and a radical preacher. The data extracted from accused no.6 shows many photographs and videos pertaining to the ideology of Islamic State. He downloaded Twinme, TelegramX, Session, Wicker-ME, Wire, Telegram etc., in his mobile phone and used encrypted
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 communication platforms to contact accused no.2 and others to hide his identity. Therefore the trial court has observed that there are reasonable grounds for believing that accused no.6 was a part of larger conspiracy to further the activities of Islamic State and to wage war against India, for denying bail.
15. Before referring to the charge sheet, we may refer to some of the definitions found in section 2 of UAP Act.
• Section 2(a) defines association as combination of body of individuals. • Section 2(ec) gives the meaning of person as an individual, a company, a firm, an organization or an association of persons or body of individuals whether incorporated or not.
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 • According to section 2(k), terrorist act has the meaning assigned to it in section 15, and the expression terrorism and terrorists shall be construed accordingly.
• Section 15 states that whoever does any act with intent to threaten or likely to threaten the unity, integrity, security (economic security) or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country................
• Section 2(l) states that terrorists gang means any association, other than terrorists organization, whether systematic or otherwise, which is concerned with or involved in terrorist act.
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 • Section 2(m) defines terrorists organization as organization listed in the first schedule or organization operating under the same name as an organization so listed.
• Section 2(o) gives the meaning of unlawful activity in the following way:
"unlawful activity", in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),-
(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or
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(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India;"
16. Now what is required to be examined is whether the activities of the appellant may be brought within the definition of terrorist act or unlawful activity. Appellant does not dispute the fact that he and accused no.2 were classmates while perusing engineering course. The allegation is that accused no.2 radicalized the appellant. In order to demonstrate the truth in this allegation, the NIA has collected materials which indicate regular contact between accused no.2 and the appellant. It is brought on record that accused no.2 contacted the appellant over the phone with SIM number +9170905 90266. It was the submission of Sri. Balakrishnan that this number did not belong to the appellant and it was of his
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 mother. Though the SIM stood in the name of the mother of the appellant, the materials indicate the same SIM being used by the appellant. Accused no.2 is already there into proscribed organization, Indian State and he radicalized the appellant. The chat conversation with Colonel which is a part of charge sheet unfolds horrifying state of affairs. A few chats are extracted here:
• "To begin with practice throwing bottles and better our aim and throwing skills"
• "Many beginners burn themselves while attempting to throw it, so just get some empty beer bottles and fill with water and practice a bit"
• "As work increases and there will be regular ops... whole of ind will become like Kashmir..there will be paramilitary
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 and police everywhere..especially in Muslim areas"
• "Even in such situation you will have to continue the work"
• "No one, not even the top most leader is indispensable...work and things go on as per Allah's scheme...we are just players doing our part and giving our best so we can have someone to present to Allah on qiyamah".
17. The above chats and many such not extracted here are clearly indicative of unlawful activities undertaken by an organization of which the appellant is affiliated to. In paragraph no.17.55.6 of the supplementary charge sheet, the role of the appellant is stated. Appellant was an engineering college mate of accused no.2 at Mangaluru. Appellant was radicalized by accused
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 no.2 for the cause of organization (IS) and is a member of proscribed terrorist organization. As a part of larger conspiracy appellant participated in recce activities at Mangaluru along with accused no.2 for conducting arson with an intention to wage war against India. He also used encrypted communication platforms on the instructions of accused no.2 for receiving the radicalized contents. Digital devices were seized from him and all those things reveal a lot of incriminating materials relating to Islamic State. The accusations thus found in the charge sheet do not appear to be imaginary, rather they are the result of analysis of the data found in the devices recovered from the possession of the appellant. The statements of the witnesses especially of LW193 and LW195 indicate that the appellant had downloaded some videos from the dark web and he was watching them regularly. The statements of the protected witnesses show that the appellant
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 was fully radicalized and had formed an opinion that Indian Government was against the Muslims and that the Indian Army was harassing the Kashmirians to which Jihad was the only answer. He was found to be in conscious possession of materials challenging the sovereignty of India.
18. Sri. Balakrishnan's argument was that all these materials are said to have been obtained based on the alleged voluntary statement of the appellant which cannot be given importance in view of sections 25 and 26 of the Evidence Act.
19. This line of argument is not possible to be accepted, for the recovery of data from the devices, could not have been possible without a disclosure made by the appellant while giving voluntary statement and therefore such a recovery falls within the ambit of section 27 of the Indian Evidence Act. For deciding the bail application,
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 this inference is sufficient, and if really the recovery is doubtful it can be tested during trial.
20. Though the materials do not indicate that the appellant had ever been part of an act culminating into destruction of property or sabotaging, it may be noted here that the materials do indicate his being a member of conspiracy. And conducting recce was to facilitate the commission act; it amounts to an act preparatory to the commission of a terrorist act. Section 18 of UAP Act envisages punishment not only for conspiracy, but also for other acts such as attempts to commit a terrorist act, advocating, abetting, advising, inciting, facilitating directly or knowingly, the commission of a terrorist act or any act preparatory to the commission of a terrorist act. Conducting recce at some places was to facilitate the commission of a terrorist act. The charge sheet materials contain accusations, which
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 at this stage cannot be rejected holding that they do not appear to be prima facie true. The accusation can be sustained till conclusion of trial. These are the conclusions which we can also draw to concur with findings recorded by the trial court.
21. Now we refer to the rulings cited by Sri. Balakrishnan in support of his argument.
22. In Yedala Subbarao and other vs. Union of India - 2023 6 SCC 65, the Hon'ble Supreme Court granted bail to an accused implicated of offences punishable under sections 18, 19, 20 and 39 of UAP Act and section 120B r/w 302 of IPC. Two reasons considered for granting bail were that the accused were in custody for four and a half years by then, and the recovery from accused no.47 was found to be doubtful because the confession statement given by him did not contain any statement paving way for discovery of certain weapons such as eight brouchers, two
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 banners, a landmine, electric wire and detonators. Therefore it is clear that the Hon'ble Supreme Court doubted the recovery in the given set of circumstances. Here we do not find any reason to doubt certain recoveries said to have been made on the basis of voluntary statement given by the appellant. If at all there is any discrepancy in it, it is to be tested during trial. Therefore this ruling does not help the appellant.
23. Union of India Vs. K.A. Nazeeb - (2021) 3 SCC 713 is cited by Sri. Balakrishnan to urge a ground that this court being the Constitutional Court can grant bail not withstanding restriction under section 43 (D) (5) of the UAP Act. It is true that Supreme Court has held so in a situation where violation of Part III of the Constitution was noticed. Pertinently the following observation of the Supreme Court in the said judgment can be extracted here to understand
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 under what circumstance bail can be granted inspite of restriction under Section 43 (D) (5) of the UAP Act.
"18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected."
24. So it is clear that having noticed the fact that the accused therein was in custody for quite a long time and that there was no chance of sooner completion of trial, the Hon'ble Supreme Court
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 confirmed the order of the High Court granting bail. But the same is not the position here. The accused was arrested on 10.01.2023. The case is still at the initial stage. At this juncture we may observe that the appellant is facing accusation of having committed grave offence, not against an individual owing to personal enmity, but against the sovereignty and security of the nation. Article 51(A)(a) obligates every citizen of India to abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem. Clause (c) mandates every citizen to uphold and protect the sovereignty, unity and integrity of India. These are fundamental duties of every citizen. The appellant being a citizen of India is obligated to perform his duties and instead if he becomes a member of an organization conspiring to wage war against India and show defiance to the Constitutional mandates, it is surprising that he tries to invoke Constitutional
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 jurisdiction of this court. Article 21 cannot be stretched too long to afford protection to persons who have least concern for the rule of law and pose threat to sovereignty and integrity of the nation. Aptly applicable to a situation like this the observation of the Hon'ble Supreme Court in Rajesh Ranjan Yadav @ Pappu Yadav vs. CBI though its Director - [(2007) 1 SCC 70] can be referred to here. It is held :
"15. Learned counsel for the appellant has repeatedly referred to Article 21 of the Constitution and on that basis has submitted that the appellant should be released on bail particularly since he has already been imprisoned for more than six years.
16. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society."
25. Therefore it is our considered view that Constitutional powers cannot be exercised when materials produced before the court prima facie show or indicate threat to unity, integrity and sovereignty of our country, instead it is the duty of the Constitutional Courts to protect the nation and its society from such people who indulge in anti national and anti societal activities. Without the nation there is no Constitution.
26. Sri. Balakrishnan has referred to a decision of the High Court of Judicature of Madras in Crl.Appeals Nos.98,114 and 116 of 2023 (Idris @ M.A.Ahamad Idris and others Vs. Union of
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NC: 2024:KHC:5412-DB CRL.A No. 2248 of 2023 India). But in these cases, decision to grant bail was taken in the given set of circumstances.
27. From the above discussion we are of the considered view that the trial court has not committed any error in rejecting the appellant's bail application. There are no infirmities in the impugned order. Appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KMV,SD List No.: 1 Sl No.: 3