Mohammad Salim vs State Of U.P. Thru. Ats, Gomti ...
2022 Latest Caselaw 21329 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

						Reserved on   09.12.2022
 
						Delivered on   16.12.2022
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 2338 of 2022
 

 
Appellant :- Mohammad Salim
 
Respondent :- State Of U.P. Thru. Ats, Gomti Nagar, Lucknow
 
Counsel for Appellant :- Ishan Baghel,Pranshul Tripathi,Shourya Parmar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Saroj Yadav,J.

(1) The instant Criminal Appeal has been filed by the appellant-Mohammad Salim, under Section 21 (4) of the National Investigation Agency Act, 2008 [here-in-after referred to as ''Act of 2008'], challenging the order dated 22.03.2022 of refusal of bail to the appellant by the learned Special Judge, NIA/ATS/Additional District & Sessions Judge, Court No.3, Lucknow in Bail Application No. 881 of 2022, Mohammed Salim Vs. State of U.P.

(2) Brief facts of the case are that an F.I.R. was lodged as Case Crime No. 9/2021 on 20.06.2021 at 11.35 hours at Police Station ATS Gomti Nagar, District Lucknow for offences under Sections 420, 120-B, 153-A, 153-B, 295-A, 511 IPC and 3/5 U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 [here-in-after referred to as ''Act of 2021'] against Mohd. Umar Gautam, Mufti Qazi Jahangir Qasmi, Chairman of Islamic Dawah Centre (IDC) and unknown persons.

(3) The allegations against the appellant are that he was involved in promoting enmity between different groups of religion and disturbing the sovereignty and integrity of India by influencing the non-Muslim sects to convert and to embrace Islam. The co-accused Mohd. Umar Gautam procured the funds from different donors into his organization to achieve the said objective. It is further averred in the FIR that on the information received through FIR/Case Crime No. 473 of 2021 which was registered under Sections 419, 420, 506 IPC at Police Station Masuri, District Ghaziabad, it came into light that the co-accused-Mohd.Umar Gautam, who is a converted Muslim, is involved in getting the people of another religion converted into Islam on large scale and about 1000 non-Muslims have been converted and married with Muslims. Further, it is stated that the accused-Mohd. Umar Gautam and his associates are running an organization, namely, Islamic Dawah Centre (IDC) for the said purpose of conversion and huge fund is being provided to Islamic Dawah Centre (IDC) from different sources including foreign countries. It also came into picture that the students of Deaf and Dumb School, namely, NOIDA Deaf Society, have been converted in illegal manner by practicing misrepresentation, allurement and fraudulent means. On enquiry, it was found that a Case Crime No. 247 of 2021 was registered under Section 364 IPC for kidnapping of one Aditya Gupta, by his mother, who states that her son was forcibly converted and was taken to a place in southern part of India.

(4) During the investigation of the present case, it was found that the accused-Mohd. Umar Gautam had created a gang for the aforesaid aim and object and Irfan Shaikh @ Irfan Khan, who was working as an Interpreter in Sign Language Training and Research Centre, New Delhi, was a vital link of this syndicate as it transpires from FIR of Case Crime No. 9 of 2021 that the appellant was involved in the incident which took place on 02.06.2021 at Hindu Temple "Devi Mandir Dasna" situated at Masoori, district Ghaziabad wherein it was alleged that two Muslim boys entered the temple with an intention to harm the priest "Guru Yati Narshinhanand Saraswati Ji" for which an FIR No.473 of 2021 was lodged against the appellant on 03.06.2021 as has been referred to above.

(5) During the course of investigation, Sections 121-A, 123, 417, 298 IPC and Section 8 of U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 were added, while Sections 420 and 511 IPC were omitted by the Investigating Agency.

(6) After investigation, the ATS has submitted first charge charge-sheet on 13.08.2021 under Sections 120-B, 153-A, 153-B, 295-A, 417, 298 IPC and Sections 3, 5, 8 of U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 against Salahuddin Jainuddin Sheikh, Mohd. Umar Gautam, Mufti Qazi Jahangir Qazmi, Mannu Yadav alias Abdul Mannan, Rahul Bhola alias Rahul Ahmad, Irfan Shaikh @ Irfan Khan, whereas second supplementary charge sheet was filed on 17.09.2021 under Sections 120-B read with Sections 153-A, 153-B, 295-A, 417, 298, 121-A and 123 IPC and Sections 3, 5, 8 of U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 against Mohd. Umar Gautam, Salahaduddin, Mufti Qazi Jahangir Qazmi, and Irfan Shaikh @ Irfan Khan and in the said charge sheet, offences under Sections 121-A and 123 IPC have been added against the aforesaid accused.

(7) The appellant thereafter moved a bail application before the Special Court, NIA/ATS, Lucknow and the same was dismissed by the impugned order dated 22.03.2022 and being aggrieved by the same, the applicant has preferred the present Appeal under Section 21 (4) of Act of 2008.

(8) Pleadings have been exchanged between the parties.

(9) Heard Shri I. B. Singh, learned Senior Advocate assisted by Sri Ishan Baghel, learned Counsel for the appellant and Shri S.N. Tilhari, learned Additional Government Advocate for the State-respondent and perused the material brought on record.

(10) It has been argued by learned counsel for appellant that the appellant is a Driver of co-accused/Maulana Kaleem Siddiqui and he was driving the vehicle at the time of his arrest alongwith the said co-accused and he was working for a remuneration of Rs.8,000/-. The applicant-appellant is not named in the F.I.R. and from perusal of the charge sheet, no offence for unlawful conversion is disclosed against the appellant. Further, there appears to be no connection of the appellant with any of the co-accused persons who have been charge-sheeted nor the appellant has any connection with the co-accused persons for the offences in question. He submitted that being the Driver of Maulana Kaleem Siddiqui the appellant had no knowledge about the activities done by the said accused person and other co-accused persons and he has been the Driver with him for the last 17 years.

(11) He further submitted that Section 4 of Act 2021 provides that any aggrieved person, his/her parents, brother, sister or any other person who is related to him/her by blood, marriage or adoption may lodge a first information report of such conversion which contravenes the provisions of Section 3, whereas in the instant case, the F.I.R. has been lodged by S.I. Vinod Kumar in the capacity of complainant, who is neither an ''aggrieved person' nor is related to the aggrieved person in any manner as he is Sub-Inspector of Anti-Terrorist Squad, Noida Unit, Uttar Pradesh which itself is untenable in the eyes of law. It was argued that no offence under Sections 3/8 of the Act of 2021 is made out against the appellant.

(12) Learned Counsel for the appellant has further submitted that as per Section 8 of Act of 2021, all applications which have been made by the persons of other religions were prior to the enforcement of Act of 2021, hence no offence under Section 8 of Act of 2021 is made out against the appellant as the said Act came into force with effect from 27.11.2021 and all the incidents alleged against the appellants are prior to that, which is apparent from the record.

(13) Learned Counsel for the appellant further has relied upon various judgments of the Apex Court with respect to grant of bail and further submitted that no offence, whatsoever, is disclosed against the appellant for the offences in question. Further, it is submitted that the appellant is in jail since 25.09.2021, hence he may be released on bail as the trial is not likely to conclude in the near future.

(14) Per contra, learned Additional Government Advocate, on the other hand, has vehemently opposed the prayer for bail and has submitted that according to the appellant, he was the Driver of the co-accused Maulana Kaleem Siddiqui for the last 17-18 years and during the course of investigation, it has been found that the phone of the appellant was used by the co-accused for conversation with co-accused/Mohd. Umar Gautam who was the main accused in the instant case and he was involved in unlawful conversion of people of another religion to embrace Islam. His statement was recorded by the Investigating Officer wherein he has admitted the fact that he used to accompany the co-accused who was a Member of the syndicate run by the co-accused/Mohd. Umar Gautam of the Organization in the name of Islamic Dawah Center (IDC) and the appellant used to carry the persons, who came for conversion, to certain places, as instructed by the co-accused Maulana Kaleem Siddiqui and the co-accused mostly used his cell phone for talking to people who were connected with Islamic Dawah Center (IDC) for the purpose of conversion. The name of the appellant also came into light in the confessional statement of the co-accused Maulana Kaleem Siddiqui and the appellant has received Rs.55,000/- on various dates from Jamiyat Imam Waliullah Trust (Bank Account No. 443265667). Thus, the appellant had full knowledge about the unlawful conversion of people of another religion to Islam by the co-accused Maulana Kaleem Siddiqui and Islamic Dawah Center (IDC). The co-accused Mohd. Umar Gautam and Maulana Kaleem Siddiqui in order to hide their activities, switched off their cell phones and they used mobile phone of the appellant. After retrieving the data from the mobile of the appellant, it has been established that the mobile phone of the appellant was used in the crime in question and the same has been sent to Forensic Science Laboratory and from the data received from it, three suspicious audio clips were recovered and after arrest of Mohd. Umar Gautam and Maulana Kaleem Siddiqui, the phone used by them in the crime has been switched off. Thus, the appellant was fully conscious of the illegal activities of the co-accused Maulana Kaleem Siddiqui with whom he was working as a Driver for unlawful conversion and running of Islamic Dawah Center (IDC) by Mohd. Umar Gautam. A copy of the audio transcript has also been annexed and is part of Page - 91 of the case diary. From the statement of victim/Aditya Gupta, Mohit @ Moin, Dipanshu, Tushar, Navin @ Naved, Mohd. Shabba under Section 161 Cr.P.C. and also of accused Mannu Yadav and accused Rahul Bhola @ Rahul Ahmad further disclose the involvement of participation of the appellant in unlawful conversion of different people of another religion to Islam. The contention of the learned Additional Government Advocate is that if the appellant is released on bail, he would again indulge in such activities which may be prejudicial to the interest of the country and against the public tranquility and public order. He urged that if the appellant is released on bail there is every likelihood that he would indulge in such activities which would endanger the national integration of the country.

(15) Learned Additional Government Advocate has further submitted that the trial is in progress and the appellant has also moved a discharge application which has been rejected and the charge is to be framed against the appellant and co-accused persons. He urged that if the appellant is released on bail there is every likelihood that he would further indulge in such activities which would endanger the national integration of the country.

(16) We have examined the submissions advanced by the learned Counsel for the parties, perused the impugned order and the material brought on record.

(17) Prima facie, it transpires from the material collected during the course of investigation that the appellant was not merely a Driver of Maulana Kaleem Siddiqui but actively participated in the unlawful conversion of different people of another religion to Islam and he was conscious of the illegal activities of his owner Maulana Kaleem Siddiqui and Mohd. Umar Gautam who was running an Organization of Islamic Dawah Center (IDC) for converting the people of another religion to Islam by misrepresentation, allurement and in fraudulent manner. He remained as a Driver with Maulana Kaleem Siddiqui for the last 17-18 years and was also receiving payments from the Trust managed by the co-accused Maulana Kaleem Siddiqui as has been pointed out by the learned Additional Government Advocate. Moreover, the cell phone which was recovered from the appellant and was being used by the co-accused in order to escape from the clutches of law. The mobile of the appellant was sent to Forensic Science Laboratory wherein three audio clips show the clinching evidence against the appellant in the present crime. Moreover, the material collected during the course of investigation goes to show that the appellant alongwith other co-accused persons was running a syndicate. The statement of witnesses recorded under Section 161 Cr.P.C. also shows that the appellant has actively participated in the crime in question with the co-accused Mohd. Umar Gautam and Maulana Kaleem Siddiqui.

(18) It also transpires that charge sheet No.4 narrates the role and job of the accused persons including appellant for committing the offences in question. According to flow chart described in the charge sheet, there appears to be three levels of functioning and the role of accused including the appellant involved in the process of alleged conversion which is evident from the chart described hereunder:-

Central Level

Name of the accused

Role and involvement

(1) Umar Gautam

To make road map according to the ideology and to provide man, material, money and ideological support in its enforcement.

(2) Maulana Kaleem Siddiqui

(3) Salahuddin Sheikh

Second Level

Name of the accused

Role and involvement

(1) Prasad Rameshwaram Kaware @ Adam

Working at Satellite Center Of Syndicate, In which through a organic system different roles has been assigned to target for conversion. Publishing the literature (Electronic Books/Pamplets) for the purpose of conversion, Illegal conversion and prepare the documents of the illegal conversion, To rehabilitate after the illegal conversion.

(2) Irfan Shekh

(3) Faraz Babuullah Shah

(4) Kausar Alam

(5) Dheeraj Govind Rao Jagtap

(6) Dr. Arsalan @ Bhupriya Bando

(7) Mufti Kazi Jahangir Alam Kasmi

(8) Abdullah Umar

(9) Mhd. Idirees Qureshi

(10) Sarfaraz Ali Zafri

Third Level

Name of the accused

Role and involvement

(1) Rahul Bhola @ Rahul Ahmad

Working as Multi-Level Marketing Agent only on the direction of the accused of the first and second stage without having the knowledge and Modus Operandi.

(2) Mannu Yadav

(3) Kunal @ Atif

(4) Hazi Saleem

(19) Thus, keeping in mind the act and conduct of the appellant, it cannot be said that he is innocent. On the other hand, the evidence collected during of course of Investigation by Anti-Terrorist Squad (ATS), charge sheet submitted against the appellant and from perusal of charge sheet No.4 referred in para No.18, there were three levels/stages in which the accused persons were involved in the crime in question which is an organized crime and the appellant was working as Driver with co-accused Maulana Kaleem Siddiqui, who is placed at Sl. No.2 in the Central Level alongwith Umar Gautam and Salahuddin Sheikh that he was carrying-on anti-national activities with the help of anti-social elements for achieving nefarious design which would weaken the social fabric of the country and developed and spread hatredness amongst the people of different religions which would disturb the public tranquility and public order. More over, the appellant is a Driver with Maulana Kaleem Siddiqui for the last 17 years and has received Rs.55,000/- remuneration from the Trust managed by the co-accused Maulana Kaleem Siddiqui. The mobile of the appellant used in the crime has been hid by him in order to hide their activities. Considering the contention of the learned State Counsel that if the appellant is released on bail, there is every likelihood that he would again indulge in such activities, which would be prejudicial to the national integration of the country, also has substance, hence we do not find any good ground for enlarging the appellant on bail, which is accordingly refused.

(20) Accordingly, while affirming the impugned order dated 22.03.2022, the instant Criminal Appeal of the appellant-Mohammad Salim, involved in Case Crime No.9/2021, under Sections 120B, 121A, 123, 153A, 153B, 295A, 298, 417 I.P.C. and Section 3/5/8 U.P. Prohibition of Unlawful Conversion of Religion Ordinance, (Act), 2021, P.S. ATS U.P., District Lucknow, is dismissed.

(21) It is relevant to mention here that the bail of the co-accused person/Irfan Shaikh @ Irfan Khan has been rejected earlier by a Co-ordinate Bench of this Court in Criminal Appeal No. 38 of 2022 vide order dated 25.03.2022 and also of the co-accused persons, Sallahuddin in Criminal Appeal No. 1925 of 2022, Abdullah Umar in Criminal Appeal No. 1739 of 2022, Mohd. Umar Gautam in Criminal Appeal No. 1926 of 2022 and Rahul Bhola @ Rahul Ahmad in Criminal Appeal No. 2469 of 2022 have been rejected by this Court today under Section 21 (4) of 2008 of Act which are connected with the present appeal.

(22) Considering the facts and circumstances of the case, the Trial Court concerned is directed to proceed with the trial and conclude the same expeditiously, preferably, within one year from the date of receipt of a certified copy of this order.

(23) Learned counsel for the parties are directed to place a copy of the order before the Trial Court concerned for information and necessary compliance.

.

[Mrs. Saroj Yadav, J.] [Ramesh Sinha, J.]

Order Date :- 16.12.2022

lakshman