Karnataka High Court
Mr. Mohammad Tapseer vs State Of Karnataka on 17 December, 2024
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CRL.A No.1289/2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO. 1289/2024 (21(NIA) )
BETWEEN:
MR.MOHAMMAD TAPSEER
@ MOHAMMED TAFSEER
AGED ABOUT 32 YEARS
S/O MAIDUKATTI
R/AT NO.1/237, BEERAKODI,
BOLANTURU VILLAGE, BANTWAL TALUK
DAKSHINA KANNADA - 574 211 ...APPELLANT
(BY SRI SANDESH J. CHOUTA, SENIOR COUNSEL FOR
SRI SUNIL KUMAR S., ADVOCATE)
AND:
Digitally STATE OF KARNATAKA
signed by K S BY K G HALLI POLICE STATION
RENUKAMBA REP. BY SPECIAL PUBLIC PROSECUTOR
Location: HIGH COURT OF KARNATAKA
High Court of BENGALURU - 560 001 ...RESPONDENT
Karnataka
(BY SRI SACHIN C., ADVOCATE FOR
SRI P.PRASANNA KUMAR, SPL.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 21(4) OF
NATIONAL INVESTIGATION AGENCY ACT, 2008 PRAYING TO SET
ASIDE THE ORDER DATED 21.02.2024 PASSED BY THE XLIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT
FOR TRIAL OF NIA CASES) (CCH-50) AT BENGALURU IN
SPL.C.NO.744/2023.
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CRL.A No.1289/2024
THIS CRIMINAL APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Challenging dismissal of his bail application, accused No.8 in Spl.C.No.744/2023 on the file of XLIX Additional City Civil & Sessions Judge (Special Court for trial of NIA Cases), CCH-50, Bengaluru has preferred the above appeal under Section 21(4) of the National Investigation Agency Act, 2008 (for short 'NIA Act').
2. Appellant and 19 others are being prosecuted in Spl.C.No.744/2023 for the charges for the offences punishable under Sections 153A, 120B, 121, 121A, 511 of IPC and Sections 16, 18, 18B of Unlawful Activities (Prevention) Act, 1967 (for short 'UAP Act') on the basis of the charge sheet filed by Kadugondanahalli police in Crime No.328/2022 of their police station.
3. The allegations against the accused are as follows:
(i) Accused Nos.1 to 19 being the office bearers, members and cadres of Popular Front of India ('PFI' for -3- NC: 2024:KHC:52098-DB CRL.A No.1289/2024 short)/accused No.20, had extreme religious views. They were enraged by laws like Citizens Amendment Act, 2019 ('CAA' for short), National Register of Citizens laws (NRC), Hijab and Babri Masjid judgment and laws passed by the duly elected Government of India. They entered into conspiracy to radicalize Muslim youth towards terrorist acts with an intention to create enmity between various sections of the society on the line of religious disharmony and to create unrest in the nation by indulging into terrorist activities, to eliminate duly elected prominent leaders of Hindu Religion, to strike terror amongst the members of the Hindu Religion, to defy the Government established by law, to threaten the unity, integrity and sovereignty of India and to wage internal war against the Government of India. Through PFI they planned to radicalize Muslim Youth by indoctrination form the service teams of such youths, train them in handling the arms and indulge in violent acts like murder, bomb blast etc.
(ii) Accused Nos.1, 3, 11 and 12 along with other accused were involved in murder of Praveen Nettaru, a Hindu leader. On 28.11.2021, appellant conspired with accused Nos,1, 4, 6, 7, 11 and 13 and one Mr.Shaheed Nazir. On -4- NC: 2024:KHC:52098-DB CRL.A No.1289/2024 06.01.2022 appellant conspired with other accused Nos.1, 6, 11, 12, 13, 14 and 19 to organize terrorist activities. Accused No.1 was the State President of PFI, accused No.3 was associated with PFI organization in various capacities in 2017 and accused No.7 was working as State Secretary of PFI from 2022. Appellant and accused No.11 were working as State Executive Committee Members since 2019 and accused No.13 was working as State General Secretary from April 2022 and accused No.14 was working as District President of Davanagere Zone from 2019. All the aforesaid accused were participating in various capacities for functioning, organizing and recruiting muslim youths for the purpose of activities of unlawful association i.e. PFI. They were involved in organizing various meetings, events, training camps etc to strengthen the aforesaid cause of Islam and stating that by 2047 India should be ruled by Muslims or it should become Islamic Country. They were propagating that Hindus have destroyed Babri Masjid and indulged in atrocities against the Islamic religion. Accused were involved in networking the likeminded people of their mission through social media and by organizing the meetings at various places. Accused used Freedom Educational and Charitable Trust located at Mittur, Bantwala Taluk, Dakshina Kannada District -5- NC: 2024:KHC:52098-DB CRL.A No.1289/2024 for the purpose of unlawful activities and conspiracy to commit terrorist acts. During such meetings they used to impart training to several Muslim youths. They involved in fund raising for the purpose of those activities. By such means, between 2011-2022 the accused raised sum of Rs.9,10,81,649/- for their illegal activities in Karnataka, Kerala and Tamil Nadu etc, thereby they have committed the aforesaid offences.
4. The appellant was arrested on 23.09.2022. The Trial Court by the impugned order rejected the bail application holding that there are reasonable grounds to believe that he has committed the offences alleged against him. The trial Court further held that having regard to the materials on record with regard to prima facie proof of commission of offences under the provisions of UAP Act, Court is barred from granting bail in view of Section 43D of UAP Act.
5. Challenging the said order, the above appeal is filed. Sri Sandesh J.Chouta, learned Senior Counsel appearing for Sri Sunil Kumar S, learned Counsel on record for the appellant submits that as on the date of the registration of FIR, PFI was neither a scheduled organization nor an unlawful -6- NC: 2024:KHC:52098-DB CRL.A No.1289/2024 association. Therefore, Section 16 of UAP Act does not attract. He further submits that the allegations against the appellant is only training the service team and raising the funds. The offences under Sections 18, 18A, 18B of UAP Act carry punishment of imprisonment up to five years. There are 707 witnesses in the case. The charges are not yet framed. There is no sufficient material to presume that the appellant has committed the offences alleged against him. Ultimately, if he is acquitted, liberty lost by him cannot be compensated. He further submits that accused Nos.2, 4, 5, 9, 10, 15, 16, 17 and 19 have already been granted bail. Therefore, on the ground of parity also, the appellant is entitled to bail.
6. In support of his submissions, he relies on the following judgments:
(i) Faizal Hasamali Mirza v. State of Maharashtra1
(ii) National Investigation Agency Through its Chief Investigating Officer, Jammu v. 3rd Additional 2 Sessions Judge District Court, Jammu
(iii) Farhan Shaikh v. State (National Investigation Agency)3
(iv) Nasir Ahammed v. National Investigation Agency4
(v) Vernon v. State of Maharashtra5 1 2023 SCC OnLine Bom 1936 2 Crl A(D) No.46/2022/Crl.M No.1474/2022 3 2019 SCC Online Del 9158 4 2015 SCC OnLine Ker 39625 5 2023 SCC OnLine SC 885 -7- NC: 2024:KHC:52098-DB CRL.A No.1289/2024 6
(vi) Shoma Kanti Sen v. State of Maharashtra
(vii) Javed Gulam Nabi Shaikh v. State of Maharashtra7
(viii) Jalaluddin Khan v. Union of India8
(ix) Sidhique Kappan v. State of Uttar Pradesh9 10
(x) Prabir Purkayastha v. State (NCT of Delhi)
(xi) Ashim v. National Investigation Agency11
(xii) Union of India v. K.A.Najeeb12
(xiii) Manish Sisodia v. Directorate of Enforcement13
(xiv) State of Madhya Pradesh v. Mahendra14
(xv) Aman Kumar v. State of Haryana15
7. Sri P.Prasanna Kumar, learned Special Public Prosecutor submits that the statements of the charge sheet witnesses clearly show that the appellant was actively involved in radicalizing the Muslim youth to break the unity, integrity and sovereignty of India and to indulge in terrorist activities and for that purpose he organized training camps for the service teams selected by PFI and raised funds to sponsor the terrorist activities. Therefore, there are sufficient material to believe that he has committed the offences punishable under 6 (2024) 6 SCC 591 7 2024 SCC OnLine SC 1693 8 2024 SCC OnLine SC 1945 9 2022 SCC OnLine SC 1195 10 2024 SCC OnLine SC 934 11 (2022) 1 SCC 695 12 (2021) 3 SCC 713 13 2024 SCC OnLine SC 1920 14 (2022) 12 SCC 442 15 (2004) 4 SCC 379 -8- NC: 2024:KHC:52098-DB CRL.A No.1289/2024 Sections 18, 18A, 18B and 22B of UAP Act. In such cases, Section 43D of UAP Act bars granting bail. Therefore, the Trial Court was justified in rejecting the bail application. The judgments relied on by learned Senior Counsel do not advance the case of the appellant.
8. In support of his submissions, he relies on the judgment in Union of India v. Barakathullah16
9. On considering the submissions of both side and examining the material on record, the point that arises for determination of the Court is 'Whether the impugned order of rejection of bail suffers any arbitrariness or illegality warranting interference of this Court"?
Analysis
10. As already noted, the appellant along with 19 others are charge sheeted for the offences punishable under Sections 153A, 120B, 121, 121A and 511 of IPC and Sections 16, 18, 18B of UAP Act. The appellant was specifically charge sheeted for the offences punishable under Sections 153A, 120B of IPC and Sections 18, 18A, 18B and 22B of UAP Act. It was contended that the appellant is charge sheeted for being 16 2024 SCC Online SC 1019 -9- NC: 2024:KHC:52098-DB CRL.A No.1289/2024 member of PFI and his alleged acts do not attract the definition of 'terrorist act'. Therefore, UAP Act does not apply to him. It was further contended that there was no allegation of appellant committing any act of murder or any offence punishable with death or imprisonment for life as contemplated under Section 16 of UAP Act, on that count also, the provisions of UAP Act are not attracted.
11. First of all the appellant is not charge sheeted for the offences punishable under Sections 10 and 16 of UAP Act which deal with being a member of unlawful association and committing terrorist act. The specific allegations against the appellant is that he indulged in radicalizing the Muslim youth to create unrest in India on the ground that the Government of India is indulging in Anti Muslim Activities by enacting Anti Cow Slaughter Act, 1960, CAA, NRC laws and Hijab issue etc., therefore, to take revenge for that India should be ruled by Muslims and it should become an Islamic country. It is alleged that in furtherance of such activities, he organized and participated in conspiracy meetings at various places, recruited the service teams, trained those service team members and raised funds for those activities.
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12. Whether there is prima facie material to establish those allegations is the question. The statement of CW.58 shows that the appellant tried to introduce him and incite him saying that Muslims in India are being exploited and India should be made Islamic Country, therefore the said witness and youth like him shall join the association of the appellant, but they should not divulge that to outsiders. His statement further shows that the appellant was conducting the training camps in Mittur, recruiting different cadres and imparting arms training to the service team members along with other accused named by him. His statement further indicates about the appellant holding meetings in four places.
13. The statements of CW.58/protected witness A, CW.82/protected witness O, CW.89/protected witness V, CW.90/protected witness W, CW.91/protected witness X, CW.92/Protected witness Y, CW.112/protected witness AJ, CW.113/protected witness AK, CW.131/protected witness AU, CW.133/protected witness AW prima-facie show that the appellant along with other accused was radicalizing youth from several parts of Tamil Nadu, Karnataka, Kerala and recruiting the physically fit persons in the service teams, radicalizing
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NC: 2024:KHC:52098-DB CRL.A No.1289/2024 them against India and imparting them armed trainings. Their statements further show that the appellant raised funds for the aforesaid activities. The statement of those witnesses prima facie show that the appellant participated in such conspiracy meetings/training on the following dates and places:
28.11.2011 Tirur Kerala 06.01.2022 Benson Town Bangalore 26.02.2022 Mittur Dakshina Kannada
14.05.2022 Satyamangala Tamil Nadu.
14. To impute terrorist act against a person, whether it is necessary that he should have actually involved in violent acts like murders or explosions etc., it is necessary to refer to Section 15(1)(a) and (c) of UAP Act which are relevant. The same read as follows:
"15. Terrorist act.--(1) 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 in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a
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NC: 2024:KHC:52098-DB CRL.A No.1289/2024 hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) ......................................................................................
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act; or commits a terrorist act.
Explanation.--For the purpose of this sub-section,--
(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
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(b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule."
15. It is true that against the appellant, Section 16 of UAP Act is not invoked. However, Section 18 of UAP Act says that any conspiracy or attempt to commit, or advocate, abet, advice and incite directly or knowingly facilitate commission of terrorist act or any act preparatory to commission of terrorist act is punishable with imprisonment upto life. In the present case it is true that the appellant is not charge sheeted for commission of the terrorist act. However the allegation is that he was inciting, advocating and making preparations for commission of the terrorist act. He was inciting service team youth to attack the Hindu leaders and to disturb the rule of law, therefore, there is no merit in the contention that the provisions of UAP Act are totally inapplicable to the appellant.
16. It was contended that the punishment for the offences under Sections 18, 18A and 18B of UAP Act is five years imprisonment and the appellant has already spent more than two years in the jail. If at all he is acquitted, his liberty
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NC: 2024:KHC:52098-DB CRL.A No.1289/2024 cannot be reimbursed, on that count, he is entitled to bail. Reading of the said provisions shows that five years imprisonment is the minimum punishment prescribed and those offences are punishable upto imprisonment for life. Therefore the question of he being entitled to bail on the ground of serving more than half of the prescribed imprisonment does not sustain.
17. In paragraph Nos.16, 18 and 23 of the judgment in Barakathullah's case relied on by learned Special Public Prosecutor where the accused involved were PFI and its members, the Hon'ble Supreme Court held as follows:
"16. As transpiring from the material on record, the PFI was registered under the Societies Registration Act, having an organizational set up as contained in its constitution. All the respondents-accused were the members or office bearers of the said organization at the relevant time. As alleged in the charge sheet, though the PFI was projecting itself as an organization fighting for the rights of minorities, Dalits and marginalized communities, it was pursuing a covert agenda to radicalize particular section of the society and to work towards undermining the concept of democracy and integrity of India. The investigation disclosed that the activities and undeclared objectives of PFI had strong communal and anti-national agenda to establish an Islamic rule in India by radicalization of Muslims and communalization of issues. After recruitment as
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NC: 2024:KHC:52098-DB CRL.A No.1289/2024 members of PFI, they were motivated towards violent terrorist activities by providing training through beginners course and advanced training courses. During the training courses, physical education classes were conducted in which members were taught to attack, assault, maim and murder with bare hands. The training was also given as to how to use weapons like knives and swords and how to hurl bombs. It appears that within few days of the arrest of the respondents on 22.09.2022, the PFI was declared as an "unlawful association" and was banned by the Government of India under the UAPA. We need not elaborate on the allegations made by the protected/listed witnesses stating the role and involvement of each of the respondents, who were either members or the office bearers of the PFI. Suffice it to say that, there is sufficient material in the form of statements of witnesses and other incriminating evidence in the form of digital devices, books, photographs etc. collected during the course of investigation and relied upon by the appellant as recorded in the charge sheet, to form an opinion that there are reasonable grounds for believing that the accusations against the respondents-accused are prima facie true.
18. In our opinion, the High Court has committed gross error in not considering the material/evidence in its right and proper perspective and in recording a perverse finding to the effect that there was no material to suggest the commission of any offence, which falls under Section 15 of UAPA, and that the prosecution had not produced any material about the involvement of any of the respondents-accused in any terrorist act or as a member of a terrorist gang or
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NC: 2024:KHC:52098-DB CRL.A No.1289/2024 organization or training terrorism. Such perverse findings of the High Court deserve to be strongly deprecated more particularly when the appellant has not alleged the offence under Section 15 of UAPA either in the FIR or in the charge sheet against the respondents. The alleged offences are under Section 18, 18A, 18B etc. For the purpose of considering the offence under Section 18, the commission of terrorist act as contemplated in Section 15 of UAPA is not required to be made out. What Section 18 contemplates is that whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act would be punishable under the said provision. Hence, if there is any material or evidence to show that the accused had conspired or attempted to commit a terrorist act, or committed any act preparatory to the commission of a terrorist act, such material evidence would be sufficient to invoke Section
18. For attracting Section 18, the involvement of the accused in the actual commission of terrorist act as defined in Section 15 need not be shown. The High Court having miserably failed to comprehend the correct import of Section 18 read with the definition of terrorist act as contemplated in Section 15 of UAPA, in our opinion the High Court has fallen into a patent and manifest error.
23. This Court has often interpreted the counter terrorism enactments to strike a balance between the civil liberties of the accused, human rights of the victims and compelling interest of the state. It cannot be denied that National security is always of paramount importance and any act in aid to any terrorist act -
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NC: 2024:KHC:52098-DB CRL.A No.1289/2024 violent or non-violent is liable to be restricted. The UAPA is one of such Acts which has been enacted to provide for effective prevention of certain unlawful activities of individuals and associations, and to deal with terrorist activities, as also to impose reasonable restrictions on the civil liberties of the persons in the interest of sovereignty and integrity of India."
(Emphasis supplied)
18. From reading of the facts of the case and the above judgment, it becomes clear that even if the appellant/accused are not involving in handling any bombs or any violent activities, the acts involving any preparation or conspiracy with Anti National Agenda, attract the offences punishable under Sections 18, 18A and 18B of UAP Act. In the similar circumstances, the Hon'ble Supreme Court held that to strike a balance between civil liberties of the accused, human rights of the victims, compelling interest of the State and considering the national security as paramount importance, bail cannot be granted.
19. The present case is fully covered by the said judgment. Sri Sandesh J.Chouta, learned Senior Counsel contended that the bail application of co-accused of Barakathullah was allowed by Madras High Court and the
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NC: 2024:KHC:52098-DB CRL.A No.1289/2024 application of Union of India for cancellation of bail was rejected.
20. Reading of the judgment of the Madras High Court in Mohammed Yusuf v. Union of India (Crl.A.No.700/2023 DD 15.12.2023) shows that he was granted bail on the ground that there were no materials to show that he was involved in terrorist act or any act which could be construed as terrorist act and there was no material to proceed against him. Therefore that cannot be justifiably applied to the present case.
21. So far as the claim of parity along with accused Nos.2, 4, 5, 9, 10, 15, 16, 17 and 19, admittedly against them the provisions of UAP Act were not invoked. Therefore, they were granted bail. Hence, parity cannot be applied with those accused. As there is prima facie material to show the involvement of the appellant for the offences punishable under Sections 18, 18A, 18B and 22B of UAP Act, the other judgments relied by learned Senior Counsel cannot be justifiably applied to the facts of the present case. Since, prima facie case is made out, the Trial Court was justified in holding that Section 43D of UAP Act barred it from granting bail.
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22. For the aforesaid reasons, we do not find any merit in the appeal. The appeal is liable to be dismissed. Hence, the following:
ORDER The appeal is dismissed.
Sd/-
(K.S.MUDAGAL) JUDGE Sd/-
(VIJAYKUMAR A. PATIL) JUDGE KSR List No.: 1 Sl No.: 22