High Court
Facts
Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.1046 OF 2024Mohammad Abdul Karim s/oMohammad Abdul Halim… APPELLANTVERSUSThe State of Maharashtra … RESPONDENT.......Mr. Javed R. Shaikh, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent....…WITHCRIMINAL APPEAL NO.1032 OF 2024Mohammad Nisar s/o Mohd. Abdul Rashid… APPELLANTVERSUSThe State of Maharashtra … RESPONDENT.......Mr. N.R. Shaikh, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving order : 20th JANUARY, 2025.Date of pronouncing order : 17th FEBRUARY, 2025. Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 2 ::O R D E R (PER : R.G. AVACHAT, J.) : Both these appeals are taken up together fordecision as they arise from same crime, based on same set offacts. The orders challenged in both the appeals are of refusalto grant the appellants bail who are accused Nos.3 and 5respectively in Special Case, No. 31/2023, pending on the fileof learned Special Judge, Nanded, arising out of C.R.No.22/2022, registered with Anti Terrorist Squad (ATS) PoliceStation, Kala Chowki, Mumbai, for offences punishable underSections 121-A, 153-A, 120-B, 109, 116, 201 of the IndianPenal Code (IPC) and under Sections 13(1)(B) of the UnlawfulActivities (Prevention) Act, 1967 (UAPA). The crime wasregistered at the instance of Assistant Inspector of Police,attached to ATS, Kala Chowki Police Station, Mumbai on22/9/2022.2.The case, as has been alleged in the F.I.R. is asunder :- Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 3 :: The appellants and four others (co-accused) arethe members of Popular Front of India (PFI), a bannedorganisation. Both the appellants along with others attendedvarious public meeting arranged in protest of the CentralGovernment, passing certain bills/ Acts like CAA/ Abolition ofArticle 370, Anti-Hizab, Triple Talaq etc. During investigation ofthe crime, witnesses came forward to stake the involvement ofthe appellants in the alleged crime.3.So far as appellant Mohammad Abdul Karim(accused No.3) is concerned, it has been alleged that, sixmobile handsets, 2 Hard Disks have been seized from theaccused persons. Their voice samples have been obtainedData contents in the cell phones has been retrieved.Everything was sent to Forensic Science Laboratory (FSL),Kalina, Mumbai. A positive report has been received. Thisappellant was Treasurer of District Unit of the PFI, ParbhaniHe indulged in inviting and even instigating Muslim youths tobecome members of PFI. He made provocative speeches,appealing to Muslims to be up in arms as against the CentralGovernment which indulges in oppression of Muslim Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 4 ::community. As such, it is alleged that, this appellant madespeeches which has effect of causing hatred between Hinduson one hand and the Muslims on the other. The speechesgiven by these appellants were against unity and integrity ofthe nation. He participated in Dharane Andolan dated15/11/2019 held at Parbhani. He gave slogans, “Insaf Do,Insaf Do”, “Babri Masjid Zindabad”, “PFI Zindabad”, InqalabZindabad” etc. It has further been alleged that, this appellanthas similar criminal antecedents. Four different crimes havebeen registered against him with Police Station, Mondha,District Parbhani during the period 2019-2021.4.It is further alleged that, this appellant instigatedMuslim youths to help out Kashmiri Muslims since he felt thatthe Union of India, by deleting Article 370 from the Constitutionof India, has acted against Muslims in Kashmir. He advocatedthat Kashmir belongs to Muslims and for its independence, allthe Muslims shall help them. This appellant remained presentin various meetings held by the members of PFI and others forpropagating or inciting Muslims against the Union of India. Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 5 ::The acts of the appellant were prejudicial to the maintenanceof unity, integrity and security of the nation. 5.As against the appellant Mohammad Nisar(accused No.5) is concerned, the allegations are, he hassimilar criminal antecedents. Four crimes have beenregistered against him at Police Station, Mondha. He wasSecretary of District Unit of PFI. He was soliciting Muslimyouths to become members of PFI (banned organisation). Hiscell phone’s clone/ mirror image was seized and got analysedfrom FSL. It was found therein that one Yashwant Shinde, awitness in Bomb Blast case, Nanded made some statements.A video thereof has been preserved by him in his cell phone.The contents thereof are as under :"नमस्ककार मम यशववंत शशवदद, रकाषषषमय सदवक सवघकााका मम१९९५ सकााम जममम ककाशममराका पाकारकांत हहंतह, अनदकवरर बजरवग दा, शवशवव् शहवदम परररदाद ककामपकाशहाद,अनदक महतवकावयका जबकाबदकादयका घदेन ककाम कदाम.२००६ ाका नकावदददाका जह बबमबस््हफझकााका, तयकापकराकांत मम ककाा २९ आगागस्फ हजर रकाहहररन माका यकापकराकांत सकाकमदकार करकावद महामनमका. शवशदर Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 6 ::न्यकायकाायकास शवनवंतम कदाम. न्यकायकाायकानद मकाझका अजररस्वमककार कदाका आगाशा सरककारम वकीा ंतसदाबबमबस््हफ खफ्ययकांतमा आगारहपम आगाहदंत तयकाववयकावशकाकावनका नहफमस पकाठशवाम, बनशवाम आगाहद, शदामआगाहद, आगाशा पपढवयका मशहन्यकांत २२ शदनकावककााका मकाझदककाा सकादर कदाद्ययका ंतकककार वरून तयकावाद ककाहम ंतद मंतमकावदंतमा, २००६ सकााम बबमबस््हफ पकराकांतपकदाद गदाद आगाहदंत ंतद ममदकानकांतमा आगाहदंत. ममळ आगारहपमतयकावनद प्ाॅन रााका, कफ रााका, ंतद अजमन बकाहदरामहकळद श्रंत आगाहदंत. ंतपकास यवंतादवयका अधधिककादयकानदतयकावनका हकांत ंतद बकाहदरा श्रंत आगाहदंत. तयकांताका ममळआगारहपम आगाहद शमधावद परकावजपद जह आगाज शदनकावकआगाधखाभकारंतमय शवशवव् शहवदम परररदाका रकाषषमय सवघफक आगाहद. जह२००३-२००४ वयका सपमकारकास महकारकाषषकााका सवघफकहहंतका. तयकानदा भकाजपकदमन सपपकारम घदेन २००३ ाकाबबमबस््हफ कर्ययकासकाठम ंतरुाकावनका फषदशनवग दद्ययकााद तयकानदककायरर हकांतम घदंताव हहंत. आगाशा २००४ वयका ाहकसभकाहह्ययकाआगाधिम ददशभर अनदक शठककााम बबमबस््हफ हहवमनकरून.” 6.With a view to increase members of PFI, he heldvarious meetings. He instigated Muslims in Parbhani to up inarms against the Union of India as it was Pro-Hindus only. Healso indulged in making provocative speeches so as to uniteMuslims against Central Government’s actions as regards Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 7 ::abolition of Article 370. He advocated for independence ofKashmir from India. As such, the actions of this appellant wereanti-national, against unity, integrity and sovereignty of India.He is a hard-liner and gives provocative speeches. He eveninstigated the Muslim youths to fight against the CentralGovernment with armed rebellions.7.Heard. Learned Advocates for the appellantswould submit that, there could not be ex-post facto criminallegislation. When the appellants attended the meeting of PFIin September 2022, the organisation was not banned. It wasonly 6 days thereafter the ban came to be imposed. Both thelearned Advocates would submit that, no overt act, eithercausing injury to human being or loss of public or privateproperty has been attributed to any of the appellants. Theywould further submit that, the statements of witnesses arestereo type. No particular day, date and time of allegedactivities of the appellants have been stated. The learnedAdvocate for appellant Mohammad Nisar (accused No.5)would submit that, whatever has been alleged against thisappellant would constitute exercise of his constitutional right of Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 8 ::freedom of speech and expression. He would further submitthat, the PFI is not a terrorist organisation. Whateverrecovered as a data from the cell phone had never been madepublic. He would further submit that, peaceful participation indemonstration against certain acts of the Central Governmentwould in no way constitute breach of any of the provisions of apenal statute. He would further submit that, right to protest is afundamental right that flows from the constitutionallyguaranteed right to assemble peaceable and without arms,enshrined in Article 19(1)(b) of our Constitution. In support ofhis submission, he relied on the judgment of Delhi High Courtin case of Devangana Kalita Vs. State of Delhi NCT [ AIROnline 2021 Del 837 ]. According to the learned Advocates, the appellantshave been behind the bars for about two and half years.Charge has not been framed. As such, the trial has notcommenced. The prosecution has cited 40 witnesses. It willtake time for commencement and conclusion of the trial. Pre-trial detention would amount to punishing the appellantswithout proof of the alleged offence. They would further submit Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 9 ::that, the speedy trial is a constitutionally guaranteed rightunder Article 21 of the Constitution of India. Relying on someother authorities, both the learned Advocates urged forallowing the appeals.8.The learned A.P.P. would, on the other hand,submit that the appellants have criminal antecedents. Thematerial collected during the investigation undoubtedly indicatethe activities of the appellants to be subversive to the unity andintegrity of our nation. The learned A.P.P. placed on record theentire charge sheet and relied on particular statements ofcertain witnesses. He would further submit that, it is not acase of so many witnesses. The prosecution could not beblamed for delay, if any, in commencement of the trial. It is theappellants and the co-accused who moved number ofapplications, resulting into delay in commencement of the trial.The prosecution is ready to produce its evidence. The numberof witnesses to be examined is not large. The trial will beconcluded within reasonable time. He would further submitthat, considering the seriousness of the offence, their criminalantecedents and material relied indicating their involvement in Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 10 ::the alleged crime, warrant dismissal of the appeals. Thelearned A.P.P. placed the reliance on the following decisions ofthe Supreme Court and the Bombay High Court :-(1)Criminal Appeal No.704/2024 Gurwinder Suingh Vs.State of Punjab, decided on 7/2/2024)(2)Criminal Appeal No.883/2023 with companion appealsKazi Ahmed Khan Vs. State of Maharashtra, decided on 11/6/20249.Considered the submissions advanced. Perusedthe report submitted by the investigating officer along with therelevant police papers. The PFI came to be banned anddeclared as an unlawful association w.e.f. 27/9/2022. Thepublic meeting for the “Dharane Andolan” held at Parbhani,wherein the appellants allegedly participated, was dated15/11/2019 i.e. long before the PFI came to be declared as anunlawful association.10.The only offence with which the appellants aresought to be prosecuted under the UAPA of 1967, is forindulging in unlawful activities, an offence punishable under Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 11 ::Section 13(1)(b) of the UAPA. Section 2(o) defines unlawfulactivity to mean, “unlawful activity” in relation to an individual orassociation, means any action taken by such individual orassociation (whether by committing an act or by words, eitherspoken or written, or by signs or by visible representation orotherwise), – (i)which is intended, or supports any claim, to bringabout, on any ground whatsoever, the cession of apart of the territory of India or the secession of a partof the territory of India from the Union, or whichincites any individual or group of individuals to bringabout such cession or secession; or(ii)which disclaims, questions, disrupts or is intended todisrupt the sovereignty and territorial integrity ofIndia; or(iii)which causes or is intended to cause disaffectionagainst India;”The said offence is punishable with imprisonmentfor a term which may extend to seven years, and shall also beliable to fine. “13.Punishment for unlawful activities :-(1)Whoever - Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 12 ::(a)takes part in or commits, or (b)advocates, abets, advices or incites thecommission of, any unlawful activity, shall bepunishable with imprisonment for a term which mayextend to seven years, and shall also be liable to fine.(2)Whoever, in any way, assists any unlawfulactivity of any association, declared unlawful undersection 3, after the notification by which it has beenso declared has become effective under sub-section(3) of that section, shall be punishable withimprisonment for a term which may extend to fiveyear, or with fine, or with both.(3)Nothing in this section shall apply to any treaty,agreement or convention entered into between theGovernment of India and the Government of anyother country or to any negotiations therefor carriedon by any person authorised in this behalf by theGovernment of India.”11.The restrictions on granting of bail specified in sub-section (5) of Section 43-D has no application to this offencesince the restriction applies to an offence punishable underChapter IV and VI of the UAPA. Meaning thereby, the prayerof the appellants for bail would be governed by general lawregarding grant/ refusal of bail. In such case, the rule is ‘bail’and not ‘jail’. In paras 30 and 31 of the judgment in case ofNatasha Narwal Vs. State of Delhi NCT [AIR Online 2021Del 832], it has been observed :-
Legal Reasoning
Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 13 ::30. Though grant of bail involves exercise ofdiscretionary power by the court, as always, theexercise of discretion must be judicious and notSigning Date:15.06.2021 CRL.A.82/2021 Page 22 !of 72 ! 10:30:51 perfunctory or as a matter ofcourse. In granting bail the court must keep in mindnot only the nature of accusations but also theseverity of the punishment and the nature ofevidence in support of the accusations. Apart frombeing prima facie satisfied as regards the chargeslevelled; the court must also reasonably assess theapprehension of flight risk, evidence tampering andwitness intimidation; with careful regard to thegenuineness of the prosecution. The court must alsoconsider the character, behaviour, means, positionand standing of the accused and the likelihood of theoffence being repeated. Ash mohammad vs. ShivRaj Singh & Anr. , (2012) 9 SCC 446 : para 8 and 11: (2012 AIR SCW 5243).31. Furthermore, we remind ourselves that theobject of bail is neither punitive nor preventative butis principally to secure the presence of the accusedat the trial; and that punishment begins only afterconviction and that everyone is deemed to beinnocent until duly tried and found guilty. It is wellsettled that detention in custody pending completionof trial can cause great hardship to an accused; that itis improper for any court to refuse bail as a mark ofdisapproval of the past conduct or to refuse bail to aperson yet to be convicted only to give him a taste ofimprisonment as a lesson. "Necessity" to secure theattendance of an accused at the trial, the Hon'bleSupreme Court has held, is the operative test.Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 : para21-23 : (AIR 2012 SC 830). It also requires to beunderstood that though the larger interest of thepublic or the State and other similar considerations Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 14 ::are also relevant, there is no hard and fast rule andeach case has to be considered on its own facts,circumstances and merits. ( P. Chidambaram Vs.CBI, 2019 SCC OnLine SC 1380 : para 22 : (AIR2019 SC 5272).12.It is reiterated that, no overt act attributing theappellants of causing any injury to human being or loss of anypublic or private property has been attributed. They arealleged to have assembled along with other Muslim youths inprotest of Central Government actions/ decisions in passingthe bills such as CAA/ Abolition of Article 370, Anti-Hizab,Triple Talaq etc. Moreover, the action of the appellantMohammad Nisar (accused No.5) in keeping in his cell phonedata regarding one Shri Yashwant Shinde (detailed above)would in no way constitute an offence under any of the penalstatutes. Perusal of the statements of the witnesses wouldsuggest that the appellants had participated in protestorganised in front of the office of Collectorate, Parbhani in April2022. There are general allegations made by witnesses thatthe appellants and the co-accused would make provocativespeeches and instigate other Muslim youths to rise for theoccasion and be up in arms against certain policies of the Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 15 ::Central Government. The appellants feel that the CentralGovernment is anti-Muslim.13.It is true that there are statements of certainpersons indicating the appellants to have given slogans andurged the Muslim youths to come together in protest. Theappellants are also alleged to have instigated the Muslimyouths to assist Muslims in Kahmir for ensuring independenceof Kashmir.14.The other offences with which the appellants aresought to be prosecuted under Indian Penal Code are Sections121-A, 153-A, 120-B, 109, 116, 201. It is reiterated that,although the appellants prima facie found to have indulged ininstigating activities against the Union of India, we find that,considering the nature of offences alleged to have beencommitted and there being no restriction of Section 43-D(5) ofUAPA being applicable, the case would be governed by thegeneral principles of bail. Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 16 ::15.We do not propose to make further observations onthe merits of the case so as to ensure that the Trial Court shallnot be influenced thereby. Suffice it to say that the appellantsare behind the bars for about two and half years. The trial hasnot yet commenced (Charge not framed). The witnessesproposed to be examined are 40 in number. There are otheraccused. Each one might have been represented by adifferent lawyer. It would necessarily take time forcommencement and conclusion of trial. In the facts andcircumstances of the case, pre-trial detention of the appellantsis not warranted. The apprehension of the prosecution that theappellants may flee away or tamper with the prosecutionwitnesses can be taken care of by imposing stringentconditions.16.In the result, we are inclined to allow the appeals interms of the following order : O R D E R(i)The Criminal Appeals are allowed. Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 17 ::(ii)The order dated 03/10/2024, passed by AdditionalSessions Judge, Nanded below Exh.No.22 in Special CaseNo.31/2023, refusing to grant appellants bail is hereby setaside.(iii)The appellants be released on bail in connection withSpecial Case No.31/2023, pending on the file of learnedSpecial Judge, Nanded, on their executing P.R. bond in thesum of Rs.15,000/- (Rupee fifteen thousand) each with onesurety in the like amount.(iv)The appellants shall co-operate in the trial of the case.They shall regularly attend the Trial Court except in compellingcircumstances. Until conclusion of trial, they shall mark theirpresence at Nanalpeth Police Station, Parbhani from 9.00 p.m.to 10.00 p.m. every day, except on the day on which theywould be attending the Trial Court.(v)The appellants shall surrender their passports, if any,with the investigating officer. The appellants shall not leaveParbhani and Nanded districts without prior permission of theTrial Court. Cri.Appeal No.1046/2024 withCri.Appeal No.1032/2024:: 18 ::(vi)If the prosecution finds the appellants to have indulged intampering of evidence, or other activities causing hindrance inthe smooth trial, it may move the Trial Court for cancellation ofbail. Needless to mention, the Trial Court would decide suchapplication on its own merits, considering the parametersregarding cancellation of bail. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-