High Court
Legal Reasoning
CRI-APEAL-149.24.odt 11/12 had attended the camp. A further question may arise as to why thosepersons had not been made accused when they participated in thecamp, but then the intention of all those persons is required to beconsidered. We are considering their statements only on a prima faciefooting, but certainly at this stage those statements on their face givesome active role to the appellant.10.Another important point, which is against the appellant isthat he had received amount from time to time from PFI and RehabIndia Foundation. Those two organizations came to be banned by theCentral Government thereafter. The appellant wants to say that hehad taken that amount in COVID-19 situation for helping people. Ofcourse, it is for the prosecution to prove that the said amount, whichwas received by the appellant, has been utilized in the terroristactivities and it is for the appellant to prove that it was for the causehe wants to contend. Almost, in similar facts in Union of India v.Barakathullah (supra), the Hon’ble Supreme Court has taken note ofthe prosecution story that the accused persons used to organize andgive speeches in PFI camp, certain material used to be distributed andit was posed that the battle is against India to motivate Muslimcommunity people to prepare for waging war against the Governmentof India and to establish Islamic State by the year 2047. In that case,KHUNTE CRI-APEAL-149.24.odt 12/12 the accused persons came to be arrested on 22/09/2022. Here, thearrest of appellant is on 10/10/2022. Few days thereafter, the PFI wasdeclared as an “Unlawful Association” and was banned by the CentralGovernment under the UAPA. Here, in addition to the said fact, theaccused/appellant has received amount from Rehab India Foundationalso, which is also a banned organization. It came to be banned by theNotification dated 27/09/2022. Further the account in which amounthas been received is in the name of the appellant and not in theaccount named as President of PFI for Jalna District. In other words,that amount has been received by the appellant in his personalaccount and therefore, the prima facie connection can be seenbetween the banned organizations (though they were banned later)and the appellant. Certainly, the above said para-23 in Barakathullah(supra) is required to be considered. We, therefore, hold that there isno illegality or error committed by the learned Special Judge inrejecting the bail application of the appellant. The appeal, therefore,stands dismissed. 11.Pending application(s), if any, stands disposed of. (Y. G. KHOBRAGADE, J) (SMT.VIBHA KANKANWADI, J)KHUNTE
Arguments
CRI-APEAL-149.24.odt 1/12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPEAL NO. 149 OF 2024APPELLANT : (Orgl. Accused)Shaikh Umer S/o Shaikh Habib, Age : 32yrs., Occu.: Private Service, R/o. ArefColony, Near Zamzam Kirana Store,Gandhi Nagar, Jalna, Tal.& Dist. Jalna. -Versus-RESPONDENTS :1.The State of Maharashtra, through PoliceStation Officer, ATS Police Station, Kala-Chowki, Mumbai. (Copy to be served on the PublicProsecutor of High Court of Judicature ofBombay Bench at Aurangabad).(Resp.No.2 original informant)2.Rahul Bhaskarrao Rode, Age : 35 yrs.,Occ.: Service, R/o. C/o. ATS AurangabadUnit, Aurangabad. ---------------------------------------------------------------------------Mr.V. D. Sapkal, Senior Advocate i/b Adv.Khizer Patel for the appellant.Dr. Mrs. K. B. Patil-Bharaswadkar, APP for the respondents-State.---------------------------------------------------------------------------CORAM: SMT. VIBHA KANKANWADI & Y.G.KHOBRAGADE, JJ.CLOSED ON : 21ST JUNE, 2024PRONOUNCED ON : 11TH JULY, 2024KHUNTE CRI-APEAL-149.24.odt 2/12 J U D G M E N T (Per : Smt. Vibha Kankanwadi, J.)Heard Mr.Sapkal, Senior Counsel instructed by AdvocateMr.Khizer Patel for the appellant and learned APP Mrs.Patil-Bharaswadkar for the respondents. 2.Admit. Heard finally with the consent of the learnedAdvocates for the parties. 3.Present appeal has been filed under section 21 of theNational Investigation Agency Act (hereinafter referred to as “NIAAct”) to challenge the rejection of regular bail application by learnedSpecial Judge/Additional Sessions Judge, Aurangabad in Special CaseNo.58 of 2023, thereby refusing to grant bail to the appellant by orderdated 05/10/2023. The appellant came to be arrested in connectionwith Crime No.21 of 2022, registered with Kala-Chowki Police Station,Mumbai by ATS Mumbai for the offence punishable under section13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (for short‘UAPA’), sections 121(a), 122, 153-A, 120-B, 109, 116, 201 of theIndian Penal Code (for short ‘IPC’), section 4 punishable under section25 of the Indian Arms Act and section 135 of the Maharashtra PoliceAct. 4.After taking us through the charge-sheet, which is inclusiveKHUNTE CRI-APEAL-149.24.odt 3/12 of the FIR, statements of witnesses and the other documents, thelearned Senior Counsel has submitted that the appellant came to bearrested on 10/10/2022. He was produced before Court on11/10/2022 and sent for four days Police custody remand (PCR), i.e.till 15/10/2022. Thereafter, he has been kept in judicial custody.Nothing has been recovered or discovered at his instance during thesaid four days’ police custody. The prosecution had come with a casethat the present appellant is the President of Popular Front of India(hereinafter referred to as “PFI”) for Jalna District and he had sentsome Muslim youths to Aurangabad and other places for takingtraining, as they want to establish Islamic Rule in India by 2047. Hewas making appeal to the Muslim youths to join PFI and all thoseactivities were taken up by waging war against the government as wellas inculcating a grudge against the Hindu religion. The training thatwas organized was in the nature of giving training in Karate and othersuch activities. It is especially stated that he had sent the Muslimyouths to attend the camp at Naregaon in the outskirts of City ofAurangabad and it is alleged that it was for establishing an armyagainst the government. All those activities cannot be said to beamounting to waging war against the government, as it is then statedby those witnesses, who attended the camp, that the training was inthe nature of Karate and other self defence mechanism. It is then alsoKHUNTE CRI-APEAL-149.24.odt 4/12 stated that in the group of persons, the accused had raised slogans“Hamare nabi ki shaan mein gustakhi bandh karo bandh karo, BJPmurdabad, RSS murdabad, nara-e-takbir allahu akbar, gustakh-e-rasool ki ek hi saza, sar dhad se judha, sar dhad se juda, NupurSharma ko Phansi do, Phansi do” This was in a protest programorganized by Jalna Milli Council. All these activities and the evidencethat has been gathered in the form of CDRs and the statements ofwitnesses, even by the remark of the Special Judge would amount tooffence under section 153-A or 153-B of the IPC, for which theimprisonment is less than 5 years. Even a question has been posed bythe learned Judge that whether accused had really created a threat forthe security of nation by indulging in any unlawful activity, is aquestion and further if information about the said meeting dated10/06/2022 was received by the concerned Police officers, whyimmediately FIR was not registered. The FIR has been registered thattoo by ATS, Kala-Chowki, Mumbai on 22/09/2022. The delay has notbeen explained. The application for bail has been rejected on theground of other evidence, i.e. the travel history of the accused and hisconnection with PFI, which is now a banned organization. He,therefore, submits that whatever evidence is collected against theappellant is not sufficient to even hold that there is a prima facie caseagainst him. He relies on the decision in Thwaha Fasal v. Union ofKHUNTE CRI-APEAL-149.24.odt 5/12 India; AIR OnLine 2021 SC 963, wherein it has been observed by theHon’ble Supreme Court that mere association with terroristorganization as member will not be sufficient to attract the offenceunder sections 38 and 39 of UAPA. Further, when there is nopossibility of trial being concluded in a reasonable time, the accused isentitled to be enlarged on bail.5.Per contra, the learned APP strongly opposed the appeal andsupported the reasons given by the learned Special Judge under NIAAct. She has also taken us through the important pieces of evidence inthe charge-sheet and submitted that if at all there is delay in lodgingthe FIR, it can be explained and further when there is such activity ofwaging war against the government, then the FIR cannot be expectedhastily. Perusal of the FIR would show that though the IntelligenceAgency were doing their duty, the workshops or meetings wereorganized by PFI in such a way that no third person was allowed,however, various office bearers of PFI were camping for waging war ortoppling the government by instigating the Muslim youths. They weretrying to create hatred in the mind of the Muslims on the point thatthe present Government had taken steps in respect of CAA, NRC, banon Hijab, ban on triple talak, which was considered as the acts againstIslam/Islamic Religion. The camp was organized under the name andKHUNTE CRI-APEAL-149.24.odt 6/12 styled as ‘Save the Republic’. The appellant is not denying that he wasthe President of PFI for Jalna District. In that capacity, he hasextended all the help by sending youths from Jalna District to thecamp at Naregaon. This act can be prima facie seen from thestatements of witnesses taken under section 161 of the Code ofCriminal Procedure. Later on, PFI as well as Rehab India Foundationcame to be banned by the Central Government, by adopting dueprocedure. It is not only that the appellant was the member of PFI,but he was actively supporting those activities, which amount towaging war against the government and therefore, the bail applicationhas been rightly rejected. These activities of the appellant, prima facieamount to terrorist activities and if he is released on bail, he wouldcontinue to do the same.6.The learned APP relies on the decision in Union of India(UOI) rep. by the Inspector of Police, National Investigation Agency,Chennai Branch v. Barakathullah and ors; MANU/SC/0475/2024,wherein under similar allegations Hon’ble Supreme Court cancelledthe bail, which was granted by the High Court to the respondent/accused and similar activities were considered as threat to the nationalsecurity. It has been observed in para – 23 as under :-“23.This Court has often interpreted the counterKHUNTE CRI-APEAL-149.24.odt 7/12 terrorism enactments to strike a balance between thecivil liberties of the Accused, human rights of the victimsand compelling interest of the state. It cannot be deniedthat National security is always of paramount importanceand any act in aid to any terrorist act – violent or non-violent is liable to be restricted. The UAPA is one of suchActs which has been enacted to provide for effectiveprevention of certain unlawful activities of individualsand associations, and to deal with terrorist activities, asalso to impose reasonable restrictions on the civilliberties of the persons in the interest of sovereignty andintegrity of India.”7.The learned APP further relies on the decision in Razi AhmadKhan v. State of Maharashtra, and other connected matters, decidedby the Division Bench of this Court at Principal Seat, reported inMANU/MH/3466/2024, wherein also the activities were considered asamounting to threat to the national security. It was then observed bytaking into consideration the affidavit of the Investigating Officer thatbasically the PFI is a cadre based organization and each cadre isentrusted with special duty and responsibility. Therefore, taking intoconsideration the appellant therein were given specific specializedduties. It was held that they were helping or conspiring the others.8.At the outset, we would like to say that upon the query bythe Court that when the offence was registered at ATS Kala-Chowki,Mumbai, investigation was done by ATS Aurangabad, the charge-sheetKHUNTE CRI-APEAL-149.24.odt 8/12 was filed at Aurangabad and the investigation was never handed overto National Investigating Agency, then how the appeal is maintainableunder section 21 of the NIA Act. An opportunity was given to bothsides to make submissions. It was on the point that when the matterwas earlier heard, it was noted that below the impugned order, thelearned Judge has given his designation as “Additional Sessions Judge,Aurangabad”, but then now after giving opportunity to both sides, thelearned APP is pointing out a Notification by State Government dated13/07/2023. By exercising powers under sub-section (1) of Section 22read with sub-sections (1) and (3) of Section 11 of the NIA Act, 2008,the Government of Maharashtra with the concurrence of the Hon’blethe Chief Justice of Bombay High Court appointed Judges as the Judgefor Special Courts to try and deal with the cases filed under NIA Act,2008. We could find the name of Shri S. M. Khochey, District Judge-3and Additional Sessions Judge, District Aurangabad as the SpecialJudge, Aurangabad to try those cases. When the learned Special Judgehad the knowledge about the said Notification and he was dealingwith the bail application in Special Case No.58 of 2023, he ought tohave taken much precaution to give appropriate designation so thatthe Higher Courts do not get confused as regards powers areconcerned. Further, it has been then pointed out by the learnedSenior Counsel that in Mohammad Ayoub Dar v. State of J & K;KHUNTE CRI-APEAL-149.24.odt 9/12 MANU/JK/1361/2022, the Hon’ble Single Judge of Jammu & KashmirHigh Court had considered the said point, so also the Full Bench of theMadras High Court in Jaffar Sathiq v. State; 2021 SCC OnLine Mad2593 had considered the said point and also relied on the Three JudgeBench of the Hon’ble Supreme Court in Bikramjit Singh v. The State ofPunjab; (2020) 10 SCC 616, wherein the point has been covered thatthough the investigation was not handed over to National InvestigatonAgency, but the offence under which the FIR was registered is ascheduled offence under the NIA Act, then those cases are to be triedexclusively by the Special Courts set out under that Act. The learnedAPP also relies on Bikramjit Singh (supra), wherein it has beenspecifically observed that “.........This scheme has been completelydone away with by the NIA Act, 2008 as all scheduled offences i.e. alloffences under the UAPA whether investigated by the NationalInvestigation Agency or by the Investigating Agencies of the StateGovernment are to be tried exclusively by Special Courts set up underthe Act.” Therefore, the query that was posed by this Court has beennow answered. Only the confusion was created due to the non-mentioning of the designation by the learned Special Judge.9.Now turning towards the point involved in the appeal isconcerned, no doubt section 153-A or 153-B of the IPC is punishableKHUNTE CRI-APEAL-149.24.odt 10/12 with less than five years. Even section 151-A of the IPC prescribespunishment for imprisonment of life or imprisonment of eitherdescription for a term not exceeding ten years. But still taking intoconsideration the seriousness in the offence, and the facts, i.e. thematerial that is collected, it would guide us to whether the appellant isentitled to be released on bail or not. Though it is said that ‘bail isrule and jail is exception’, but for that purpose, every case cannot beviewed with the same yardstick. It has been brought on record thatthe appellant is the member of PFI and especially, he is the Presidentfor Jalna District. The statements of witnesses would show that hehad taken active part in organizing and sending persons/Muslimyouths from Jalna District to Naregaon Camp, wherein certainactivities were taught. If those activities are considered in general,then they may not give a picture that a particular organization istrying to topple the government, but then collectively with the mottoto establish Islamic Rule in India by 2047, if such activities areundertaken and it is with intention to create hatred with otherreligions, then definitely it would amount to threat to the nationalsecurity. In fact, such activities would disturb the social fabric. Thesocial fabric neatly mingled can only build a stronger nation. Here,the statements of witnesses would show that those persons wereasked by the appellant to take part in the camp and accordingly theyKHUNTE