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“THE MALEGAON BLAST CASE: UNRAVELLING LEGAL COMPLEXITIES IN INDIA’S FIGHT AGAINST TERRORISM”

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 ABSTRACT

 The Malegaon blast of 2008, stands as an agonizing exemplification to the intricate nature of terrorism investigations in India.  The Malegaon Blast Case, 2008 sent shivers down the spines of the people throughout India, highlighting the impending threat of terrorism in the socio-political landscape of the country. The repercussions of the blast led to a launch of comprehensive investigations aimed at identifying the perpetrators and bringing them to justice. However, the path to justice proved to be perforated with complexities, both legal and practical. To understand the legal framework surrounding the investigation of terrorism in India, it is crucial to dive into the legislative landscape. The legislation provides the law enforcement agencies with utmost powers. However, these powers must be exerted prudently to prevent the latent violation of the human rights as well as to ensure agglutination of due process of law. Despite, the sturdy legal framework, the investigators often face daunting adversities during investigations. The Malegaon Blast Case demonstrates these adversities. Moreover, the ubiquitous dominance of political and religious factors adds another layer of convolutions to terrorism investigations, often leading to allegations of prejudice or intrusion. Prosecuting those amenable for the acts of terrorism is another obstacle. The burden of proof in the cases of terrorism is eminently high, requiring the prosecution to not only substantiate the guilt of the accused but also their collusion in a larger terrorist network. Moreover, the prolonged legal proceedings and the baroque nature of evidence often result in persistent trials, testing the patience and resources of all involved parties. This article scrupulously examines the legal framework governing such investigations, colligating them with the austere realities faced by the investigators of such cases on the ground. By analysing the historical context, legal provisions, investigative challenges and prosecutorial obstacles, this study aims to shed light on the labyrinthine web surrounding the Malegaon Blast Case. Through an analysis of implications and potential reforms, it provides insights into effectively navigating similar cases in the future.

KEYWORDS – Malegaon Blast, Terrorism, Bombing, Investigation, Prosecution, Chargesheet, Explosives, Forensic Evidence, Conspiracy, Arrests, Trial, Legal Proceedings, Witness Testimony, MCOCA, NIA, UAPA, Counterterrorism, Communal Tensions, Judicial Inquiry

 INTRODUCTION

 On the 29th of September, 2008, a blast took place near Bhikku Chowk in Malegaon, a town in the Nasik District of the Indian state of Maharashtra approximately 200 Km northeast of Mumbai. Pretty much, at the same instance, another blast occurred in Modasa, Gujarat. The explosion occurred on the eve of Navaratri. These onslaughts resulted in the lamentable loss of a 15-year-old boy with total of 10 injured in Modasa, Gujarat[1] and six lives in Malegaon with a total of 101 people enduring injuries[2]. Concretely, the modus operandi resembled a blast that took place in Delhi just three days prior.

The blasts were initiated by two low-intensity bombs strapped to a Hero Honda motorcycle, which eventually served as an imperative hint leading the police to the perpetrators. Primitively, scepticism swerved towards the Muslim extremists, inducing the deployment of the Mumbai Anti-Terror Squad (ATS) to assist the Malegaon police in the investigation. The investigation was backed by the ATS Chief Hemant Karkare, lamentably killed during the 26/11 attacks in Mumbai by Lashkar-e-Tayyaba terrorists, the ATS later exposed evidence inculpating the Hindu extremists’ groups. On the date of 24th of October, 2008, three individuals namely Prime Suspect Sadhvi Pragya Singh Thakur (Member of Lok Sabha in BJP – Who as per the update of the Malegaon Blast Case on 26th April, 2024, on several occasion in the past, failed to appear before the court to record her final statement regarding the 2008 Malegaon Blast Case on the pretext of illness[3]), Shiv Narayan Gopal Singh Kalsanghra and Shyam Bhawarlal Sahu were arrested by the police concerning the blasts that took place in Malegaon. Posterior investigations unveiled that other Hindu extremist groups, including the Rastriya Jagran Manch, Sharda Sarvagya Peeth, Hindu Rashtra Sena and Abhinav Bharat were enmeshed, leading to the further arrests. The probe took a vital turn with the arrest of Lt. Col. Prasad Shrikant Purohit, a serving Army officer, on November 4, 2008. However, the case soon became politicized, with the Bharatiya Janata Party (BJP) and the Shiv Sena accusing the ATS of possessing political impetus behind the arrests, while also levying allegations against the Congress. The investigation of the ATS unveiled the potential connections between the accused and the other acts of terrorism, inclusive of the Modasa blast in Gujarat, the 2008 Malegaon Blast, the 2007 Mecca Masjid Blast in Hyderabad[4], and the Samjhauta Express Blast in 2007[5]. The prosecutors instituted charges under the Maharashtra Control of Organized Crime Act (MCOCA)[6], involving prior chargesheets against one or more of the accused. The special court in July, 2009, dismissed the MCOCA charges, citing the lack of cognizance in the other cases at the time of filing the chargesheet[7] for the 2008 Malegaon Blast. However, in 2010, the Bombay High Court re-established the MCOCA charges, citing that the cognizance appertains to the crime, not the accused and since the cognizance had been taken in the other cases, MCOCA could be applied. On the 15th of April,2015, the Supreme Court of India overturned the decision of the Bombay High Court, dismissing the MCOCA charges due to the insufficiency in evidence in the prior cases. The court instructed the High Court to establish a special court for swift and prompt legal proceedings. On the 25th of July, 2015, Rohini Salian, the Special Public Prosecutor in the case alleged that the National Investigation Agency (NIA) had directed her to adopt a lenient stance towards the accused, flaming further controversies and raising questions about the impartiality of the investigations of the case.

INVESTIGATIVE REALITIES

The investigators tasked to unsnarl the convoluted layers of the Malegaon Blast Case withstood different adversities, including the pragmatic obstacles, operational restrictions, and the deficiencies in the resources throughout the investigative process. From gathering intelligence to collecting evidence and navigating the complexities of socio-political dynamics, the challenges often impeded the pursuit of justice in cases of terrorism. The primary suspects initially identified in the Malegaon Blast Case Noor-Ul-Huda, Shabeer Batterywala, and Raees Ahmad. Initially, the Maharashtra police suspected the involvement of groups such as Bajrang Dal, Lashkar-e-Toiba, or Jaish-e-Mohammed, but no evidence was emancipated incriminating any of these groups. However, suspicion later shifted towards Harkat-ul-Jihad-al-Islami. In May, 2008, a hoard of RDX explosives and automatic rifles were discovered in the region, leading to the arrest of former members of the Students Islamic Movement of India. The explosives used in the September, 2007 Malegaon Blast case resembled those used in the 2006 Mumbai Train Blast case, which were ascribed to the Islamic groups. On the 12th of September, 2006, the Prime Minister of India stated that it would be inapt to definitively exonerate Hindu groups in the Malegaon Blast Case. The Prime Minister of India accentuated the need for a thorough investigation aimed at unveiling the truth without any prejudices and pre-conceived notions.

In an Op-Ed published on the 11th of September, B. Raman illuminated that it was immature to dismiss the possibility of the involvement either by the Hindu or Islamic extremists. B. Raman pointed out the attempts by certain Muslim community leaders to seed schism by questioning the fairness of the police officials as well as levelling accusations against the investigating officers. On the 30th of October, 2006, the arrests embroiled members of the Students Islamic Movement of India, suggesting progress in the case according to the statements of the police officials. On the 28th of November, 2006, the Mumbai Police disclosed that two Pakistani Nationals were involved in the explosions. Despite this, they continued their search for the eight additional suspects. The ATS had already incarcerated eight suspects, inclusive of two individuals related to the Mumbai Serial Blasts of 13th July 2011, connected with the Malegaon Blast Case, resulting in 17 fatalities and over 133 injuries[8].

 The ATS concluded the liaison of Hindu Nationalists groups based on the composure of the explosives used. The case was eventually taken over by the National Investigation Agency (NIA) in 2013, leading to the arrest of individuals associated with the Hindu Right-Wing group Abhinav Bharat. The charges furnished on the initially arrested Muslim men were dismissed by the MCOCA in 2016.

PROSECUTORIAL CHALLENGES

The Malegaon Blast Case, furnishes numerous prosecutorial adversities, reflecting the complexities inherent in prosecuting the cases of terrorism and communal violence. These adversities span from gathering evidences against the perpetrators to presenting a cogent case before the courts, and they often involve navigating the legal, procedural as well as the socio-political hurdles. The key prosecutorial adversities faced in the Malegaon Blast Case are as follow:

  1. Assemblage and Conservation of the Evidences– Prosecutors faced eloquent hurdles in the assemblage as well as the conservation of the evidences in the Malegaon Blast Case. It included the physical evidences such as the residue of the explosives, the forensic samples, and the debris from the site of the blast. Taking into consideration, the chaotic aftermath of the explosion and the passage of time, the conservation of the evidences became even more adverse. Moreover, the need to establish the chain of custody and ensure the admissibility of evidence in the court adds a cream-layer to the complexities.
  2. Testimony of the witnesses and Reliability– Fending the testimony of the witnesses is pivotal for instituting a strong case, but it is often formidable in the cases involving terrorism and communal violence. Witnesses might be reluctant to step forward due to the fear of retaliation, intimidation, or societal pressure. Moreover, ensuring the credibility of the witnesses amidst the consolidated communal sentiments posed a challenge for the prosecutors. The Malegaon Blast Case led to the examination of 300 witnesses, out of which 37 witnesses turned hostile so far[9]. Furthermore, the chances of the witness tampering with the information during testifying as well as coercion aggravated these issues, making it formidable to present a coherent narrative before the court.
  3. Complexity of Conspiracy charges – The prosecutors had to navigate through the convolutions of conspiracy charges, particularly when dealing with multiple defendants and convolute plots. Unravelling the web of connections between the accused, their motivations, and the conspiracy for the purpose of the blast demands substantial investigative resources and legal expertise. It became even more adverse when an accused approached the special court seeking for an action against a former ATS officer alleging that the evidences brought in record by the officer during the trial was planted evidence in the home of a co-accused. The ATS claimed that there was a conspiracy to defame him and that the accusations on him were made as an “afterthought”[10].
  4. Admissibility of Forensic and Technical Evidence – Furnishing the forensic as well as the technical evidences in court are poses vital adversities, especially when dealing with complex analysis of explosives and digital forensics. Ensuring the credibility as well as the admissibility of such evidence require assent to rigid procedural standards and expert testimony. Defense attorneys might challenge the validity of such forensic evidences, leading to prolonged judicial process over the admissibility and the weightage of the technical evidences.
  5. Public and Political Compression – The Malegaon Blast Case, like any other high-profile cases, is subjected to profound public and political scrutiny. Political interference as well as influence, media sensationalism, and communal stress further complicate the prosecutorial process, possibly sabotaging the integrity of the legal proceedings. It is evident from the fact that Bhavesh Patel, one of the suspects of the Malegaon Blast Case, wrote a letter to a CBI Court alleging that the Union Ministers Sushil Kumar Shinde, RPN Singh, Shri Prakash Jaiswal and Congress Leader Digvijaya Singh had harassed him and pressurized him to entrap RSS Leaders Mohan Bhagwat as well as Indresh Kumar as a conspirer in the Malegaon Blast Case[11].

IMPLICATIONS

The implications of the Malegaon Blast Case stretch far beyond the four walls of the courtroom, reverberating deeply within the socio-political landscape of India and affecting various stakeholders inclusive of the Government of India, Law Enforcement Agencies, Minority Community, Civil Society as well as the broader aspects of the Indian public. The implications in the Malegaon Blast Case are as follows:

  1. Counter-Terrorism Policies and Strategies – The Malegaon Blast Case accentuates the need for vigorous and effective Counter-Terrorism policies and strategies in India. It stresses on the adversities posed by the autochthonous terrorism and the exigent for motivated measures to prevent fanaticism, battle extremist ideologies, and reinforce the intelligence-sharing gimmick. The case of Malegaon blast coaxes a review of existing counter-terrorism framework and the development of targeted initiatives to address springing threats.
  2. Law Enforcement Practices and Procedures– The case of the Malegaon Blast throws light on the strength and the weaknesses of the law enforcement practices and procedures in India, especially on the pretext of the investigation of terrorism. It accentuates the significance of professionalization, training, and capacity -building within the investigating agencies to improvise their capabilities in handling the complexities of the cases. Furthermore, it stresses on the need for the assent to legal as well as procedural safeguards to ensure the integrity of investigations and prosecutions.
  3. Social Cohesion and Community Relations – The Malegaon Blast Case has consequential ramifications for social cohesion and community relations in India, especially between the religious and ethnic groups. It emphasizes on the menace of the communal dichotomization and the potential for violence ignited by the religious extremism and the sectarian tensions.
  4. Protection of Minority Rights and Civil Liberties – The case of Malegaon Blast raises a distress regarding the protection of the rights of the minorities in the country as well as the civil liberties, especially on the pretext of counter-terrorism measures. It accentuates the significance of upholding the principles of the Constitution of India such as the right to equality, freedom of religion, and due process. Shielding these rights is a necessity to prevent discrimination, arbitrary detention, and violations of privacy stating national security as a concern.
  5. Rule of Law and Judicial Independence – The case of Malegaon Blast is a litmus test for the rule of law as well as the judicial independence in India. It accentuates the significance of impartial and transparent judicial proceedings, free from political interference or undue influence.
  6. Media and Public Discourse– The Malegaon Blast case has significant ramifications for media coverage and public discourse concerning terrorism and communal violence in India. It stresses the responsibilities of the media to report exactly and responsibly all the facts of such sensitive issues, avoiding sensationalism or insurgent verbosity that may magnify tensions. The court ,thus, rejected the plea of NIA for a gag on media stating the gravity of the offence as well as the national security and ensured the media that it can continue to report on the trial, providing information and maintaining the accountability in the legal process[12].

LEGAL PROVISIONS

The Malegaon Blast Case dissects the legal framework governing the act of terrorism investigations in India and scrutinizes the relevant statutes including the Unlawful Activities (Prevention) Act, 1967 (UAPA), the National Investigation Agency, 2008 (NIA), the Indian Penal Code,1860, the Code of Criminal Procedure,1973, the Indian Evidence Act, 1872, Explosive Substances Act, 1908, the Indian Arms Act, 1959, the Maharashtra Control of Organised Crime Act (MCOCA), 1999,  
and the Constitution of India.

  1. Unlawful Activities (Prevention) Act, 1967[13]
  • Section 15 to 38 of the UAPA,1967 prescribes the offenses, investigations and the penalties under the Act.
  • Section 43D of the UAPA,1967 prescribes the conditions for grant of bail for the offenses under this Act.
  1. Indian Penal Code, 1860[14]
  • Section 120B of IPC,1860 prescribes the definition of Criminal Conspiracy
  • Section 302 to 307 of IPC,1860 prescribes the offenses relating to murder and attempt to murder
  • Section 324 of IPC,1860 prescribes the punishment for Voluntarily causing hurt by dangerous weapons or means
  • Section 326 of IPC, 1860 prescribes the punishment for Voluntarily causing grievous hurt by dangerous weapons or means
  • Section 153A of IPC,1860 prescribes the punishment for Promoting enmity between different groups on grounds of religion, race, place of birth, residence, languages etc., and doing acts prejudicial to maintenance of harmony
  • Section 295A of IPC, 1860 prescribes the punishment for Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
  1. National Investigation Agency Act, 2008[15]

The NIA Act provides for the establishment of the NIA and empowers it to investigate and prosecute the offenses affecting the sovereignty, integrity, and security of India, including terrorism.

  1. Code of Criminal Procedure, 1973[16]
  • Section 173 of CRPC, 1973 prescribes the procedure for investigation by police officer in charge of a police station
  • Section 167 of CRPC, 1973 prescribes the procedure when investigation cannot be completed in twenty-four hours.
  • Section 207 of CRPC, 1973 prescribes the supply to the accused a copy of police report and other documents
  • Section 309 of CRPC, 1973 prescribes the power to postpone or adjourn proceeding
  • Section 311 of CRPC, 1973 prescribes the power to summon material witness, or examine person present
  • Section 313 of CRPC, 1973 prescribes the power to examine the accused
  1. Indian Evidence Act, 1872[17]
  • Section 24 to 35 of the Indian Evidence Act, 1872 prescribes the provisions related to the relevancy of facts and admissibility of evidence
  • Section 45 to 51 of the Indian Evidence Act, 1872 prescribes the provisions regarding the opinion of experts
  • Section 118 to 134 of the Indian Evidence Act, 1872 prescribes the provisions regarding witnesses
  1. The Constitution of India[18]
  • Article 21 of the Constitution of India deals with the Protection of life and personal liberty
  • Article 22 of the Constitution of India deals with the Protection against arrest and detention in certain cases
  • Article 39A of the Constitution of India deals with Equal justice and free legal aid
  • Article 14 of the Constitution of India deals with the Right to equality before law
  • Article 15 of the Constitution of India deals with the Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
  1. The Explosive Substances Act, 1908[19]
  • Section 3 of the Explosive Substances Act, 1908 prescribes the Punishment for causing explosion likely to endanger life or property
  • Section 4 of the Explosive Substances Act, 1908 prescribes the punishment for Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property
  • Section 5 of the Explosive Substances Act, 1908 prescribes the punishment for Making or possessing explosives under suspicious circumstances
  • Section 6 of the Explosive Substances Act, 1908 prescribes the punishment of abettors
  1. The Arms Act, 1959[20]
  • Section 25 of the Arms Act, 1959 prescribes the Punishment for certain offenses relating to arms and ammunition
  • Section 27 of the Arms Act, 1959 prescribes the Punishment for using arms and ammunition in contravention of Section 5 or Section 7
  • Section 28 of the Arms Act, 1959 prescribes the Punishment for unlawfully acquiring, possessing, or carrying prohibited arms or prohibited ammunition
  1. The Maharashtra Control of Organized Crimes Act (MCOCA), 1999[21]
  • Section 3 of the MCOCA prescribes the Offense of organized crime
  • Section 4 of the MCOCA prescribes the Punishment for organized crime

CONCLUSION

In conclusion, this article fuses all the key findings and arguments presented throughout the study. It reflects on the lessons learned from the Malegaon Blast Case and the broader ramifications for investigations concerning terrorism in India. Furthermore, it accentuates the exigent for reforming legal frameworks, enhancing investigative capabilities, and asserting the principles of justice and liability in the brawls against terrorism. Eventually, it advocates for a panoramic approach that balances security exigent with respect to human rights and the rule of law. The Malegaon Blast Case marks an important milestone in India’s quest for justice, liability, and communal harmony. It brought a broader ramification for India’s counter-terrorism efforts and underscores the significance of sturdy investigative mechanism, intel-sharing partnership, as well as the legal frameworks to confront terrorism effectively. It highlights the need for continuous improvisation in investigative techniques, forensic capabilities, and legal procedures to ensure smooth and speedy adjudication of terrorism cases. Furthermore, it serves as a prompt of the menace of the religious extremism and sectarian violence and accents the significance of nurturing ecumenical dialogue, tolerance, and understanding.

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Written by – Sruti Sikha Maharana

References:

[1] https://nia.gov.in/case-detail.htm?16

[2] https://www.hindustantimes.com/cities/mumbai-news/2008-malegaon-blast-15-years-on-prosecution-closes-evidence-against-7-accused-101694719119028.html

[3] https://www.freepressjournal.in/india/malegaon-bomb-blast-case-after-repeated-warnings-pragya-singh-thakur-finally-appears-before-court

[4] https://indianexpress.com/article/what-is/mecca-masjid-blast-2007-hyderabad-nia-aseemanand-5139063/

[5] https://economictimes.indiatimes.com/news/politics-and-nation/2007-samjhauta-express-blast-case-68-dead-all-accused-acquitted/articleshow/68506483.cms?from=mdr

[6]https://www.indiacode.nic.in/bitstream/123456789/16362/1/the_maharashtra_control_of_organised_crime_act,_1999.pdf

[7] https://nia.gov.in/writereaddata/Portal/CasesPdfDoc/RC-05-2011-NIA-DLI-1.pdf

[8] https://pib.gov.in/newsite/PrintRelease.aspx?relid=73229

[9] https://www.ndtv.com/india-news/another-key-witness-turns-hostile-in-malegaon-blast-case-trial-4023784

[10] https://indianexpress.com/article/cities/mumbai/malegaon-blast-case-accused-claims-ats-officer-planted-evidence-home-co-accused-8659356/

[11] https://www.ndtv.com/india-news/ajmer-blast-to-malegaon-bombings-new-row-as-terror-suspects-allege-political-pressure-535777

[12] https://indianexpress.com/article/india/malegaon-trial-court-rejects-nia-plea-for-gag-on-media-6046468/

[13] https://www.mha.gov.in/sites/default/files/A1967-37.pdf

[14] https://www.indiacode.nic.in/bitstream/123456789/2263/1/aA1860-45.pdf

[15] https://www.mha.gov.in/sites/default/files/2022-08/The%2520National%2520Investigation%2520Agency%2520Act%2C%25202008_1%5B1%5D.pdf

[16] https://www.indiacode.nic.in/bitstream/123456789/15272/1/the_code_of_criminal_procedure%2C_1973.pdf

[17] https://www.indiacode.nic.in/bitstream/123456789/15351/1/iea_1872.pdf

[18] https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf

[19] https://www.indiacode.nic.in/bitstream/123456789/2342/1/AAA1908___06.pdf

[20] https://www.indiacode.nic.in/bitstream/123456789/1398/1/A1959_54.pdf

[21] https://www.indiacode.nic.in/bitstream/123456789/16362/1/the_maharashtra_control_of_organised_crime_act,_1999.pdf

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Bail Refused to Defendant Charged Under UAPA for Supporting ISIS Ideology and Organizing Illegal Weapons: Delhi High Court

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Case title: Jamsheed Zahoor Paul v. State of NCT of Delhi

Case no: CRL.A. 51/2024

Dated on: 24th April, 2024

Quorum: Hon’ble Mr Justice Suresh Kumar Kait and Hon’ble Mr. Justice Manoj Jain

Facts of the case:

Special Cell (New Delhi Range), Lodhi Colony received information that two persons i.e. Parvaiz Rashid Lone and Jamsheed Zahoor Paul (appellant herein) were radicalized youths of Jammu & Kashmir, having allegiance to banned terrorist organization ISIS/SI/DAESH. As per intelligence inputs, they had procured arms and ammunition from UP for their cadres for executing some terrorist act in Jammu & Kashmir and would come at Netaji Subhash Park, near Lal Quila (Red Fort), Delhi on 07.09.2018 to proceed to Kashmir. Both the aforesaid named suspects were found moving towards Lal Qila. Search of the appellant yielded recovery of one pistol, containing five live cartridges in its magazine. From the possession of Parvaiz Rashid Lone (A-1) also, one pistol was recovered. These were seized. The police tracked them. They were found to be juvenile in conflict with law (JCL) and, therefore, separate report was prepared against them, which was filed before concerned Juvenile Justice Board (JJB). During investigation, both the accused divulged that they were propagating ideology of terrorist outfit ISIS in India and were in touch with another ISIS militant, namely, Abdullah Basith. Though, initially, FIR had been registered for commission of offence under Section 25 Arms Act, after detailed investigation and on the basis of the incriminating material collected during investigation, penal provisions of Section 18 & 20 of Unlawful Activities (Prevention) Act (UAPA) were added. Both the accused were accordingly charge-sheeted for commission of offences under Section 25 Arms Act and for Sections 18 & 20 of UAPA. Main charge-sheet was submitted on 28.02.2019. Appellant had earlier also moved one application seeking bail which was dismissed and it was withdrawn on 06.06.2019. He moved another bail application which, too, was dismissed on 01.05.2020, feeling aggrieved, he preferred Criminal Appeal 345/2021 which was, however, not pressed and resultantly, the same was dismissed by this court on 31.01.2022 charges were framed on 25.04.2022. It was thereafter only that the appellant moved another bail application which also did not find favour and was dismissed by the learned trial court. When Appellant was interrogated, he revealed names of various cadres of ISIS (J&KModule) with whom he was in touch through social media, Black Berry Messenger (BBM) and Facebook etc. Some of such cadres of ISIS had already been shot dead in encounter. The mobile phones, recovered from both the accused, were sent to CERT-In for retrieval of data and its forensic analysis. Such analysis indicated that they both were not only involved in procuring sophisticated weapons for banned terrorist organization but also shared information about the movement of Army to other terrorists in Kashmir. Role, involvement and complicity of the appellant also stood exposed whose profile picture on BBM contained four terrorists, two of whom carrying AK-47 Rifles.

Contentions of the appellant:

According, to the learned counsel for appellant, allegations on record, even if those are taken on their face value, do not show commission of any offence under Section 18 & 20 of UAPA and at best, without admitting anything, it can be said to be a case of recovery of arms. It is contended that though the charges have been ascertained by the learned Trial Court and these have not been assailed so far, it is still legally permissible for the appellant to seek bail and to demonstrate that the bar provided under Section 43D (5) of UAPA does not stand attracted. There is no material to show that appellant had indulged into any unlawful or terrorist act, much less attribution of any overt act on his part. The entire case of prosecution is dependent upon the disclosure statements of the accused persons and these statements have no evidentiary value, being inadmissible in law. There is nothing to indicate that any message or BBM chat retrieved from the electronic device of the appellant had any potential to indicate that he was in contact with any terrorist. Appellant could not be branded as “terrorist‟ or a “person involved in terrorist act” merely on the basis of the recovery of a pistol and, therefore, invocation of draconian provision of UAPA is totally mis-founded and unwarranted. There is nothing to indicate that the appellant was a member of ISIS or their purported fronts. There is nothing to suggest that he was radicalized and was associated or was otherwise furthering the activities of ISIS. Merely because there was some BBM Chat retrieved from the electronic devise of his co-accused, appellant could not have been held to be a co-conspirator. Mere framing of charge does not create any embargo against grant of bail as the consideration for framing the charge is different from the one required for grant of bail. At the stage of consideration of bail, Court is merely required to undertake surface-level analysis of probative value of the evidence in order to satisfy test of “prima facie true” and if such analysis is carried out, it would clearly go on to show that there is no admissible evidence on record indicating commission of offences under Section 18 & 20 of UAPA. Appellant has undergone incarceration for more than five and half years and the trial is not likely to conclude any time soon and, therefore, his fundamental right as enshrined under Article 21 of the Constitution of India has been seriously jeopardized, entitling him to be released on bail on that count alone.

Contention of the respondent:

There are serious allegations against the appellant and the learned Trial Court has already come to a definite conclusion that there is a prima facie case against him for offences under Section 18 & 20 UAPA. According to the respondents, there are following clearcut allegations and if all these allegations are read conjunctively, it would clearly reveal his complicity qua offences under Section 18 & 20 UAPA. One loaded pistol was recovered from his possession and he disclosed that he had purchased the same from four juveniles. Such fact was found to be correct as the police was able to reach those juveniles and they were apprehended and admitted that weapons in question had been sold by them to the accused persons, in lieu of money. Appellant was found in possession of two electronic devices and when the data was retrieved, it was found that he was found using Black Berry Messenger for communicating with his associates. His BBM ID was deciphered and the profile picture of Black Berry Messenger depicted four terrorists holding AK47 rifles and pistols in their hands. Appellant and his co-accused had procured illicit arms and had come to Delhi together and were to leave for Kashmir together in furtherance of their conspiracy. BBM chats retrieved from the electronic devices from his co-accused clearly suggested that there was incriminating communication of precarious nature between him and Adil Thokar. Appellant had, on the directions of Omar @ Umar Iban Nazir, met one Abdullah Basith. Such Abdullah Basith was later arrested by NIA and the fact of there being a meeting between them was confirmed and substantiated by NIA. Motive of such meeting was to procure weapons for terrorist activity and the record of Shaka Guest House confirmed his such visit. appellant with his co-accused not only conspired to commit terrorist act but also procured weapons and in pursuit of their abominable objective for perpetuating terror, they both, on the direction of Adil Thokar and Umar Iban Nazir, arranged weapons through JCLs and came to Delhi via flight and even sent the images of recovered pistol to their handlers through BBM. The BBM chats from the electronic device of his coaccused clearly indicated that he was even discussing about the movement of Army in Kashmir which clearly exposes their nefarious design.

Legal Provisions:

Section 18 & 20 of UAPA- Punishment for Organizing Terrorist Camps-Anyone who engages in conspiracies, preparations, or attempts to organize a terrorist camp or provides encouragement, advice, or instigation for such activities shall be subject to imprisonment. The term of imprisonment shall not be less than five years, but it may extend to life imprisonment. Additionally, a fine may also be imposed. Punishment for Being a Member of a Terrorist Gang or Organization If an individual knowingly becomes a member of a terrorist gang, organization, or supports such entities, they shall be liable for punishment. The imprisonment term shall not be less than five years, but it may extend to life imprisonment. Furthermore, they may also be fined. Section 43D(5) of UAPA- makes it virtually hard to grant a bail.Section 10 of Evidence Act- pertains to the admissibility of evidence in cases involving conspiracy.

Issue:

  1. Whether in view of the fact that charges have already been framed and such charges have not been challenged by the appellant, whether bail plea can be considered and whether the court can go on to opine that there are no reasonable grounds for believing the accusation to be prima facie true?
  2. What should be the level of scrutiny for believing the same? Whether the appellant has been able to show that there is no prima facie case against him? Whether despite such statutory bar being in place and when prima facie is found to be made out, bail can still be granted in order to safeguard his fundamental rights.

Court analysis and Judgement:

The Hon’ble Supreme Court in Gurwinder Singh vs. State of Punjab & Anr. 2024 SCC On-Line SC 109, the impact of Section 43D (5) of UAPA was delineated and it was observed that the conventional idea in bail jurisprudence – bail is the rule and jail is the exception – does not find any place in UAPA. It further observed that exercise of general power to grant bail under UAPA is severely restrictive in scope. It went on to hold that in view of said statutory bar contained under Section 43D (5) of UAPA, if the
offences fall under Chapter IV and/or Chapter VI of UAPA and there are reasonable grounds for believing that the accusation is prima facie true, bail must be rejected as a rule. Gurwinder Singh (supra) also discussed National Investigation Agency v. Zahoor Ahmad Shah Watali: 2019 SCC On-Line SC 461 which lays down elaborate guidelines about the approach that the Courts must partake in, while considering bail application under UAPA. In context of the meaning attributable to “prima facie true‟, it observed that material collected by the investigating agency, on the face of it, must show the complicity of the accused in relation to the offence and must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. It also observed that at the stage of giving reasons for grant or rejection of bail, the elaborate examination or dissection of evidence was not required and the Court is merely expected to record a finding on the basis of broad probabilities. Thus, once charges are framed, it can be easily assumed that there is a very strong suspicion against the accused. Therefore, in such a situation, the task of any such accused becomes much more onerous and challenging as it is never going to be easy for anyone to satisfy that the same set of material, which compelled the court to frame charges on the basis of strong prima facie case, would persuade it to hold to the contrary, by declaring that such accusation was not prima facie true. Be that as it may, there can never be any restriction or embargo on moving application seeking bail. Such unfettered right remains available as long as the proceedings are alive. Moreover, in view of specific observations made in National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) as elaborated in Gurwinder Singh (supra), Court can always consider such bail application, even after framing of charges, the rider being the onus on accused would be much more rigorous in such a situation. The first two facets stand answered accordingly. As per allegations appearing on record and facts and circumstances placed before the court, the appellant was continuously in touch with his co-accused, travelling with him and arranging weapons. He was in touch with militants as well and met one of them in Delhi. Conspiracy, as the cliché goes, is hatched in secrecy and very rarely, there would be any visible evidence suggesting clear-cut conspiracy. On most of the occasions, conspiracy has to be inferred by connecting dots from bunch of circumstances. Moreover, Section 10 of Evidence Act cannot be kept aside which visualizes such type of situation and makes the actions and the statements of coconspirator to be relevant as against the others. Such action or statement can even be used for proving the existence of conspiracy. Thus, at this stage, appellant does not seem to be in any position to wriggle out of the statutory bar contained in proviso of Section 43D (5) of UAPA as there are clear-cut allegations which go on to indicate that accusation against him is prima facie true. This observation is based on broad probabilities and surface analysis of material collected by respondent. Each case has to be evaluated in the backdrop of its factual background. Moreover, in view of our forgoing discussion and material on record, the appellant seems part of conspiracy and when a full-fledged trial is already underway, we would refrain from embarking upon a mini-trial to dissect each circumstance, threadbare. The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind. In Arup Bhuyan v. State of Assam, (2023) 8 SCC 745, it has been observed that mere membership of banned organization is also sufficient to incriminate, without there being any overt act. Moreover, the factum of connection and association with any banned outfit has to be inferred from the attendant circumstances and the activities of the person concerned. There will never be a tangible piece of evidence or any kind of documentary proof in this regard, particularly once any such organization is banned. Learned counsel for the appellant has prayed that accused has already undergone incarceration for more than 5 ½ years and trial is not likely to conclude in near future. It is argued that he was just 19 years of age when he was arrested and at that time, he was at an important threshold of his educational and professional career. It is argued that though case is already at the stage of trial and the prosecution has examined nine out of cited twenty-seven witnesses, there is no likelihood of case getting disposed of in near future and, therefore, on the strength of Union of India v. K.A. Najeeb, (2021) 3 SCC 713, it is prayed that despite the aforesaid statutory bar, Constitution Court can always grant bail so that the right of speedy trial and that of life and liberty do not stand defeated.
Thus, as per K.A. Najeeb (supra), despite the above statutory restriction contained in UAPA, the Constitutional Courts can consider grant of bail on the ground of violation of Part-III of the Constitution. However, in the case in hand, the maximum sentence provided under Section 18 & 20 UAPA is imprisonment for life and there is nothing which may indicate that prosecution is acting in a manner which is detrimental to his fundamental rights as provided under Part-III of the Constitution of India. Trial Court Record does not suggest any deliberate attempt on the part of prosecution to slow down the trial and, therefore, at this juncture, merely because of the above incarceration period, the accused does not become entitled to bail. The learned trial court has already observed that it, being already conscious about such fundamental right of the accused, was taking up the matter diligently by giving shortest possible dates. Therefore, there is no further requirement of passing any further direction in this regard. 

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Mere membership of banned organizations is a sufficient ingredient to incriminate without there being an overt act :SC

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Case title: Jamsheed Zahoor Paul V. State of NCT of Delhi.

Case no: CRL.A. 51/2024.

Dated on: 24th April, 2024.

Quorum: Hon’ble Mr Justice Suresh Kumar Kait and Hon’ble Mr. Justice Manoj Jain.

Facts of the case:

Special Cell (New Delhi Range), Lodhi Colony received information that two persons i.e. Parvaiz Rashid Lone and Jamsheed Zahoor Paul (appellant herein) were radicalized youths of Jammu & Kashmir, having allegiance to banned terrorist organization ISIS/SI/DAESH. As per intelligence inputs, they had procured arms and ammunition from UP for their cadres for executing some terrorist act in Jammu & Kashmir and would come at Netaji Subhash Park, near Lal Quila (Red Fort), Delhi on 07.09.2018 to proceed to Kashmir. Both the aforesaid named suspects were found moving towards Lal Qila. Search of the appellant yielded recovery of one pistol, containing live cartridges. These were seized. During investigation, both the accused divulged that they were propagating ideology of terrorist outfit ISIS in India and were in touch with another ISIS militant, namely, Abdullah Basith. Though, initially, FIR had been registered for commission of offence under Section 25 Arms Act, after detailed investigation and on the basis of the incriminating material collected during investigation, both the accused were accordingly charge-sheeted for commission of offences under Section 25 Arms Act and for Sections 18 & 20 of UAPA. Appellant had earlier moved one application seeking bail which was dismissed, and it was withdrawn on 06.06.2019. He moved another bail application which, too, was dismissed on 01.05.2020, feeling aggrieved, he preferred Criminal Appeal 345/2021 which was, however, not pressed and resultantly, the same was dismissed by this court on 31.01.2022. It was thereafter only that the appellant moved another bail application which also did not find favor and was dismissed by the learned trial court vide impugned Order dated 16.11.2023. Such, Order is under challenge now.

Contentions of the appellant:

There is no material to show that appellant had indulged into any unlawful or terrorist act. The entire case of prosecution is dependent upon the disclosure statements of the accused persons and these statements have no evidentiary value, being inadmissible in law. There is nothing to indicate that any message or BBM chat retrieved from the electronic device of the appellant had any potential to indicate that he was in contact with any terrorist. Appellant could not be branded as “terrorist‟ or a “person involved in terrorist act” merely on the basis of the recovery of a pistol and, therefore, invocation of draconian provision of UAPA is totally mis-founded and unwarranted. There is nothing to indicate that the appellant was a member of ISIS or their purported fronts. Mere framing of charge does not create any embargo against grant of bail as the consideration for framing the charge is different from the one required for grant of bail. Appellant has undergone incarceration for more than five and half years and the trial are not likely to conclude any time soon and, therefore, his fundamental right as enshrined under Article 21 of the Constitution of India has been seriously jeopardized, entitling him to be released on bail on that count alone.

Contention of the respondent:

There are serious allegations against the appellant and the learned Trial Court has already come to a definite conclusion that there is a prima facie case against him for offences under Section 18 & 20 UAPA. According to the respondents, there are following clear-cut allegations and if all these allegations are read conjunctively, it would clearly reveal his complicity qua offences under Section 18 & 20 UAPA. One loaded pistol was recovered possession and the fact he had purchased the same from four juveniles was found to be correct. Appellant was found in possession of two electronic devices, and it was found that he was found using Black Berry Messenger for communicating with his associates. Appellant and his co-accused had procured illicit arms and had come to Delhi together and were to leave for Kashmir together in furtherance of their conspiracy.

Legal Provisions:

Section 18 & 20 of UAPA- Punishment for Organizing Terrorist Camps
Punishment for Being a Member of a Terrorist Gang or Organization
Section 43D(5) of UAPA- makes it virtually hard to grant a bail.
Section 10 of Evidence Act- pertains to the admissibility of evidence in cases involving conspiracy.



Issue:

  • Whether in view of the fact that charges have already been framed and such charges have not been challenged by the appellant, whether bail plea can be considered and whether the court can go on to opine that there are no reasonable grounds for believing the accusation to be prima facie true?

  • What should be the level of scrutiny for believing the same? Whether the appellant has been able to show that there is no prima facie case against him?
  • Whether despite such statutory bar being in place and when prima facie is found to be made out, bail can still be granted in order to safeguard his fundamental rights.




Court analysis and Judgement:

The Hon’ble Supreme Court in Gurwinder Singh Vs. State of Punjab & Anr. 2024 SCC On-Line SC 109, the impact of Section 43D (5) of UAPA was delineated and it was observed that the conventional idea in bail jurisprudence – bail is the rule and jail is the exception – does not find any place in UAPA. It further observed that exercise of general power to grant bail under UAPA is severely restrictive in scope. In National Investigation Agency v. Zahoor Ahmad Shah Watali: 2019 SCC On-Line SC 461 elaborate guidelines was laid about the approach that the Courts must partake in, while considering bail application under UAPA. In context of the meaning attributable to “prima facie true‟, it observed that material collected by the investigating agency, on the face of it, must show the complicity of the accused in relation to the offence and must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. It also observed that at the stage of giving reasons for grant or rejection of bail, the elaborate examination or dissection of evidence was not required and the Court is merely expected to record a finding on the basis of broad probabilities. Thus, once charges are framed, it can be easily assumed that there is a very strong suspicion against the accused. Therefore, in such a situation, the task of any such accused becomes much more onerous and challenging as it is never going to be easy for anyone to satisfy that the same set of material, which compelled the court to frame charges on the basis of strong prima facie case, would persuade it to hold to the contrary, by declaring that such accusation was not prima facie true. Be that as it may, there can never be any restriction or embargo on moving application seeking bail. Such unfettered right remains available as long as the proceedings are alive.  As per allegations appearing on record and facts and circumstances placed before the court, the appellant was continuously in touch with his co-accused, travelling with him and arranging weapons. He was in touch with militants as well and met one of them in Delhi. Conspiracy has to be inferred by connecting dots from bunch of circumstances. Moreover, Section 10 of Evidence Act cannot be kept aside which visualizes such type of situation and makes the actions and the statements of co- conspirator to be relevant as against the others. Appellant does not seem to be in any position to wriggle out of the statutory bar contained in proviso of Section 43D (5) of UAPA as there are clear-cut allegations which go on to indicate that accusation against him is prima facie true.  The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind. In Arup Bhuyan v. State of Assam, (2023) 8 SCC 745, it has been observed that mere membership of banned organization is also sufficient to incriminate, without there being any overt act. Learned counsel for the appellant has prayed that accused has already undergone incarceration for more than 5 ½ years and trial is not likely to conclude in near future. It is argued there is no likelihood of case getting disposed of in near future and, therefore, on the strength of Union of India v. K.A. Najeeb, (2021) 3 SCC 713, it is prayed that despite the aforesaid statutory bar, Constitution Court can always grant bail so that the right of speedy trial and that of life and liberty do not stand defeated.  However, in the case in hand, the maximum sentence provided under Section 18 & 20 UAPA is imprisonment for life and there is nothing which may indicate that prosecution is acting in a manner which is detrimental to his fundamental rights. The learned trial court has already observed that it, being already conscious about such fundamental right of the accused, was taking up the matter diligently by giving shortest possible dates. Therefore, there is no further requirement of passing any further direction in this regard. Resultantly, finding no substance in the appeal, we hereby dismiss the same.

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Judgement reviewed by- Parvathy P.V.

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