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Merely Attending ‘Jihadi’ Meetings Of An Organization Which Is Not Banned By Govt Prima Facie Not ‘Terrorist Act’ Under UAPA: Karnataka High Court

The Karnataka High Court recently granted bail to Saleem Khan, an alleged member of the Al-Hind Group, which is suspected of terrorist activities.

In the case of Saleem Khan vs. State of Karnataka (Criminal Appeal No. 130of 2021), a division bench of Honourable Justice B Veerappa and Justice S. Rachaiah stated, “Mere attending meetings and becoming a member of Al-Hind Group, which is not a banned organization as contemplated under the Schedule of UA(P) Act and attending jihadi meetings, purchasing training materials and organizing shelters for co-members

According to the facts of the case, on January 10, 2020, based on information provided by the CCB police to the Suddaguntepalya Police Station, Mico Layout Sub-Division, a FIR was registered by the said Police against 17 accused persons, including the present appellants, under the provisions of sections 153A, 121A, 120B, 122, 123, 124A, 125 of the IPC and sections 13, 18 and 20 of the UA(P) Act.

The National Investigation Agency re-registered the FIR against 17 people on January 23, 2020. After investigation, Investigation Officer filed chargesheet on 13.07.2020 against the present appellants / accused Nos.11 and 20, under the provisions of section 120B of IPC, sections 25(1B)(a) of Arms Act and sections 18, 18A, 18B, 19, 20, 38, and 39 of the UA(P) Act against accused No.11 and under the provisions of section 120B 16 of IPC, sections 18, 20 and 39 of the UA(P) Act against accused No.20.

After the Special NIA court denied their bail applications by order dated December 29, 2020, the accused filed an appeal with the Supreme Court.

Advocate S.Balakrishnan argued that both accused Nos.11 and 20 are members of the Al-Hind group, which is not a prohibited terrorist organization under Schedule I of the UA(P) Act. He also stated that no incident involving accused Nos.11, 18, 19, 20, 21, 49, and 50 occurred during the six-month period shown in the FIR, i.e., from 01.07.2019 to 10.01.2020.

It was also stated that the accused persons are not members of ISIS, as evidenced by the prosecution’s failure to produce any evidence to prove their membership in any organization. ¬†Section 18 of the UA(P) Act requires that there be some material aiding, advising, inciting, or directing anyone to commit a terrorist act. The prosecution has failed to prove anything on record against the accused in this case.

It was also stated that under the provisions of section 20 of the UA(P) Act, punishment for being a member of a terrorist gang or organization as contemplated by sections 2(1)(l) and 2(1)(m) of the UA(P) Act, none of the provisions apply to these accused persons, and the present appellants are not linked and cannot be linked to any organization as defined under sections 2(1)(l) and 2(1)(m) of the UA(P) Act.

The charge sheet, according to Special Public Prosecutor P Prasanna Kumar, shows that the accused Nos.11 and 20 attended several conspiracy meetings with accused Nos.1 and 2, and thus the accused are involved in the offences made out against them in the charge sheet filed.

The bench noted, “Section 18A addresses terrorist training, while Section 20 addresses punishment for membership in a terrorist gang or organization. As can be seen from an examination of the charge sheet, the prosecution has not produced any material against accused No.11 regarding his involvement in a terrorist act, membership in a terrorist gang or organization, or training in terrorism.”

The court then stated that, in light of Section 43D of the UA(P) Act, a balance must be struck between the mandate under Section 43D on the one hand and the rights of the accused on the other.

“To decide whether the accusation in such cases is prima facie true, the court went on to enumerate five circumstances that would provide adequate guidance for the Court to form an opinion,” it added.

“In the present case, the prosecution has not proven that accused No.11 has associated himself with any organization that is prohibited or barred under the provisions of the UA(P) Act,” it continued. He is, after all, a member of the Al-Hind Group. It is not a prohibited organization under the Schedule of the UA(P) Act, 1967, and the charge sheet material does not depict that he was convicted for the offences involved or crimes or terrorist activities, and the prosecution has also not proven whether the accused used any explosive material of the category used in the commission of the crime or recovered from him, nor does the charge sheet depict any eyewitness or mechanical device such as CCTV, camera indicating the invoking of the invoking of the invoking of the involvement of accused no.11, let alone scene of occurrence as shown in the charge sheet. On careful examination of the material forming part of the charge sheet, there are no reasonable grounds for believing the accusation against the accused No.11 prima facie true.”

As a result, it ruled that “in the absence of a prima facie case, the restrictions imposed by sub-section (5) of section 43-D per se do not preclude a Constitutional Court from granting bail on the grounds of violation of Part III of the Constitution.”

Thus, the court ordered his release on bail, subject to the execution of a bond of Rs.2,00,000/- (Rupees Two Lakh only), with two solvent sureties for the likesum, to the satisfaction of the Special Court. It also imposed a few other requirements.

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