Bombay High Court
Mohammad Irfan Daulat Khan @ Maulana ... vs The State Of Maharashtra on 28 April, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S.M. Modak
2025:BHC-AS:19050-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1029 OF 2024
Mohammad Irfan Daulat Khan @
Maulana Irfan Khan (Nadavi) .....Appellant
Versus
The State of Maharashtra .....Respondent
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Ms. Payoshi Roy, Advocate for the Appellant.
Ms. M.M. Deshmukh, APP for the Respondent-State.
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CORAM : SARANG V. KOTWAL &
S.M. MODAK, JJ.
RESERVED ON : 21st APRIL, 2025
PRONOUNCED ON : 28th APRIL, 2025
JUDGMENT :
[PER SARANG V. KOTWAL, J.]
1. Heard Ms. Payoshi Roy, learned counsel for the
Appellant and Ms. M.M. Deshmukh, learned APP for the
Respondent-State.
2. This Appeal is filed for setting aside the order dated
5.3.2024 passed by the learned District Judge-1 & Special (NIA)
Judge, Nashik below Exhibit-19 in NIA Special (ATS) Case
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Deshmane(PS)
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No.24/2023. In effect, the Appellant is seeking his release on bail
in connection with that case. The said case arises out of C.R.
No.20/2022 registered with Anti Terrorism Squad, Kalachowky
Police Station, Mumbai under Sections 109, 116, 120-B, 121-A,
153-A, 201 of IPC along with Section 13(1)(b) of the Unlawful
Activities (Prevention) Act, 1967 (hereinafter referred to as the
'UAPA').
3. The Appellant was arrested on 13.11.2022 and since
then he is in custody. The investigation is over and the charge-
sheet is filed on 2.2.2023. As of today, the charges are framed but
no prosecution witness is examined yet. It is the submission of the
learned counsel for the Appellant that more than 150 prosecution
witnesses are to be examined in this case.
4. While rejecting the Appellant's bail application, learned
Special Judge observed that there was prima facie case against the
Appellant. There were links between him and the co-accused.
There were phone calls between him and the co-accused. There
used to be secret meetings between the accused persons. The
people were asked to keep articles for protection in their homes,
like, a big knife, air gun, glass bottles, swords, extra diesel and
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petrol, red chilly powder and wooden logs. It was further observed
that the offence was serious in nature and though no overt act or
violence was committed, Section 121A of IPC involving plan to
wage war against the State was applied. There were statements of
eye witnesses about speeches inciting hatred. The apprehension
expressed by the Special P.P. that there were chances of the
Appellant tampering with the prosecution witnesses was accepted
by the learned Judge. Based on all these considerations, the Bail
Application was rejected. The Appellant has challenged this order
in the present Appeal.
5. The FIR was lodged on 22.9.2022 by API Sukhdeo Kale.
The FIR was lodged against five accused on the allegations that
they were spreading hatred in the minds of the Muslim people
against Government of India. There was reference to various
meetings held by the Popular Front of India [PFI] and spread of
similar messages. The FIR does not name the present Appellant.
The investigation was carried out and the prosecution story is
reflected in the charge-sheet. According to the prosecution case the
charge-sheet is filed against seven accused. The Appellant is shown
as accused No.7 in the said charge-sheet. The material collected
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against each of these accused is mentioned in the charge-sheet
itself. The material against the present Appellant is referred to
hereinafter in the background of the submissions made before us.
6. We are informed that the PFI was banned on 28.9.2022
and the FIR in this case was lodged on 22.9.2022.
7. Ms. Payoshi Roy, learned counsel appearing for the
Appellant made the following submissions.
SUBMISSIONS OF MS. ROY, LEARNED COUNSEL FOR THE
APPELLANT :
i. Her main thrust of argument was that the co-accused who
were attributed much more serious roles were granted bail
by the Hon'ble Supreme Court and therefore on the ground
of parity the Appellant also deserve to be released on bail.
The Appellant was arrested on 13.11.2022. Thus, more than
two and a half years have passed but there is no progress in
the trial except for framing of the charges.
ii. There are more than 150 witnesses to be examined by the
prosecution.
iii. At the highest, without admitting, the allegations against the
Appellant would attract Section 153-A of IPC which provides
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for maximum punishment for three years. The Appellant has
almost completed the entire sentence for that offence.
iv. She heavily relied on the observations of the Hon'ble
Supreme Court in granting bail to the other accused and in
particular to the accused No.2 Kayyum Abdul Shaikh @
Abdul Kayyum Badulla Sheikh and accused No.3 Razi
Ahmed Khan. According to Ms. Roy, the charge-sheet itself
shows that there are much more serious allegations against
these two particular accused. She also relied on the order
granting bail to the accused No.6 Unais Umar Khaiyyam
Patel.
v. The FIR was lodged before the PFI was banned. The
limitations of Section 43-D(5) of the UAPA do not apply. The
allegations against the Appellant is that he was attending the
meetings of PFI members, but, at that time the PFI was not
banned. Though there are allegations that he had attended a
particular meeting, the location of his mobile phone does not
support this allegation. Some provocative images were found
on his mobile phone. He had allegedly uploaded certain
videos on YouTube channel, but, even then those videos may
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at the highest attract the provisions of Section 153-A of IPC.
The worst and serious images were found with accused
Nos.2 & 3, who are granted bail by the Hon'ble Supreme
Court.
vi. The investigating agency had received one C.D. in a packet. It
contained four audio clips. According to Ms. Roy, these audio
clips are inadmissible because the source is unknown and it
is not possible to prove the contents of such electronic
record. In any case, the conversation attributed to the
Appellant in respect of the two out of the four audio clips is
not even incriminating. The images found on his phone
were not circulated by him.
vii.There is no offence made out under UAPA. On the basis of
these submissions, she sought release of the Appellant on
bail during pendency of the trial.
SUBMISSIONS OF LEARNED APP MS. M. M. DESHMUKH :
8. Learned APP Ms. Deshmukh, on the other hand,
submitted that the charges are already framed hence the trial has
now started. She relied on the two audio-clips in the Appellant's
voice, which according to Ms. Deshmukh, are quite incriminating.
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She submitted that it is not a question of only Section 153-A of IPC,
but, the matter pertains to Section 121-A of IPC which is a much
more serious offence. The prosecution has applied Section 120-B of
IPC and, therefore, it is to be read with Section 121-A of IPC
attracting punishment upto life imprisonment.
9. However, Ms. Deshmukh could not counter the
submissions of Ms. Roy regarding the principles of parity in view of
the fact that the Hon'ble Supreme Court has granted bail to the
accused Nos.2, 3 & 6.
REASONS :
10. We have considered these submissions. Since Ms. Roy
has heavily relied on the principles of parity, we may briefly refer to
the material against the accused Nos.2, 3 & 6.
11. Accused No.2 is Kayyum Abdul Shaikh. As mentioned
earlier, the investigating agency has received a C.D. having four
audio clips. Out of them, the two audio clips were in respect of the
conversation between the accused No.2 Kayyum and the accused
No.6 Unais. The conversation revealed that the accused No.2
Kayyum was working as a Media Convener of PFI. He was
instrumental in getting members for PFI and had taken part in
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imparting training for destroying the evidence by using technology.
A mobile phone and a laptop were seized from the accused No.2
Kayyum. There were objectionable videos, audios and chats.
There are about 9-10 such images and about four such
objectionable videos. There are various incriminating chats by the
said accused No.2.
12. The Hon'ble Supreme Court vide the order dated
17.2.2025 passed in Criminal Appeal No.788/2025 granted bail to
the accused No.2 Kayyum. In paragraph-6 of the said order, four
factors in favour of the said accused Kayyum were considered as
follows :
"(1) he has undergone incarceration for a period of 2 years and
4 months and 190 witnesses are to be examined;
(2) there is no likelihood of the trial being concluded in near
future;
(3) accused nos. 3 and 6 have already been granted bail by this
Court and
(4) as stated earlier, stringent conditions for bail under Section
43(D)(5) of the 1967 Act are not applicable in this case.
Therefore, the appellant is entitled to be enlarged on bail,
pending the trial."
13. As far as the accused No.3 Razi Ahmed Khan is
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concerned, the charge-sheet mentions that he was an influential
office bearer of PFI. A mobile phone and a laptop were seized from
him. They contained clips and images, which, according to the
prosecution case, were creating rift between Hindus and Muslims.
There were various images which are described in the charge-sheet
as far as this accused No.3 Razi Khan is concerned.
14. The Hon'ble Supreme Court granted bail to the accused
No.3 Razi Khan bail vide order dated 2.12.2024 passed in Criminal
Appeal No.4940/2024. The Hon'ble Supreme Court observed thus :
"We have perused the report of the Regional Forensic Science
Laboratory, Nasik, Maharashtra and the text of the conversation
attributed to the appellant. Prima facie, we do not find anything
incriminating in the conversation. There are 190 prosecution
witnesses to be examined and the appellant has undergone
incarceration for a period of about 2 years. In this case, the
stringent conditions imposed by Section 43(D)(5) of the
Unlawful Activities (Prevention) Act, 1967 (for short, "the 1967
Act") will not apply as the offence alleged against the appellant
under the 1967 Act is only under Section 13(1)(b). Therefore,
the appellant deserves to be enlarged on bail on the same
stringent conditions on which a co-accused - Unais Umar
Khaiyyam Patel was released in Criminal Appeal No.4722 of
2024."
15. As far as accused No.6 Unais Patel is concerned, the
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material refers to two audio clips received through a C.D. from an
unknown source. The conversation, according to the prosecution,
was objectionable. His mobile phone and laptop show that he had
worked on different websites which could be accessed and used
only by a person well conversed with the technical aspects of
software. He was using his knowledge for web-page design, on-line
marketing, photo editing, making banners and posters, instant
video making, web hosting, team meetings, java codings
predictions, screen capture and screen recording and fast coding
etc.. His Twitter account showed some objectionable statements.
16. He was granted bail by the Hon'ble Supreme Court vide
the order dated 22.11.2024 passed in Criminal Appeal
No.4722/2024 with the following observations.
"As far as the Unlawful Activities (Prevention) Act, 1967 (for
short, "the 1967 Act") is concerned, the offence alleged as
against the appellant is under Section 13(1)(b) of the 1967 Act.
As the said offence falls in Chapter III of the 1967 Act, stringent
conditions for grant of bail under sub-section (5) of Section
43(D) of the 1967 Act will not apply. The allegation against the
appellant is that he was helping the members of the Popular
Front of India to deal with IT related issues. There are three
factors in favour of the appellant which make out a case for
grant of bail: (1) The limited role ascribed to him; (2) He has
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undergone incarceration for a period of 2 years and 2 months
and 190 witnesses are to be examined; and (3) as stated earlier,
stringent conditions for bail under Section 43(D)(5) of the 1967
Act are not applicable in this case. Therefore, the appellant is
entitled to be enlarged on bail, pending the trial."
17. In this background, the material against the Appellant
can be considered. According to the charge-sheet he was the main
promoter of PFI in Malegaon. He was a Maulana and yet he was
inciting emotions of vulnerable people. His mobile phone was
seized. The C.D., as mentioned earlier, had four audio clips. The
Appellant's voice featured in two of those audio clips. The
Appellant had got his mobile phone formatted but the data from
the mobile phone was recovered in forensic examination. It had
certain images which showed that he was inciting the people
against the Government and was creating rift between two
religious groups. Ms. Roy submitted that the images were less
serious than the images which were found with the accused Nos.2
& 3 in particular. It is difficult to observe at this stage that the
images found with the present Appellant were less serious but in
any case they were similar in nature to the images found with the
accused Nos.2 & 3. There were five offences pending against him
between the year 2013 - 2022 but all of them were less serious
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than the present pending trial.
18. The affidavit filed by the Assistant Commissioner of
Police, Anti Terrorism Squad, Pune Shri Anil Shewale refers to this
material and lays emphasize on the two audio clips. The first clip is
in respect of a banner. The speaker (which according to the
prosecution is the Appellant) was saying that said banner needed
to be corrected. This conversation is hardly incriminating.
19. The second audio clip attributed to the Appellant
mentions that the articles of protection needed to be kept in
different mohallas and mosques. There is a conversation about
helping poor, widows and similar people. There is a reference to
some survey in respect of these issues and there was an offer to
convene classes for offering namaz. Again this conversation can
hardly be called as incriminating conversation.
20. There are statements of various witnesses but their
names are withheld for their safety purposes. Therefore, we are
referring to those statements by page numbers from the Petition.
21. The statement of a witness at page No.333 of the
Petition refers to the event dated 14.6.2022 when the PFI office
was opened at Malegaon. According to this witness, the Appellant
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was present for that event.
22. The witness at page No.334 has stated that the
Appellant had told this witness that if he wanted to work with PFI,
he had to complete five days' basic course. This witness completed
that course and in that course, sessions were held for personality
development, time management, legal awareness training etc.
23. The witness at page No.344 has stated that the
Appellant used to attend the mosque for offering namaz.
24. The witness at page No.359 has stated that the
Appellant was spreading awareness regarding education, namaz,
staying away from addictions, helping others etc. Apart from this,
he was emphasizing that the Muslims should be prepared to
retaliate if they were attacked.
25. The witness at page No.361 has stated about the
Appellant's speeches about leading life by helping people, staying
away from addiction etc.
26. All these statements show that they are not
incriminating statements and in fact some of the statements show
that the Appellant was trying to impart good education of staying
away from addictions and helping the poor people.
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27. The result of the above discussion is that as submitted
by Ms. Roy the principles of parity will apply to the present
Appellant with the accused Nos.2, 3 & 6 who are granted bail by
the Hon'ble Supreme Court.
28. The statements of some of the witnesses shows that the
Appellant was spreading good messages. The trial has not
progressed beyond the stage of framing of the charges. There are
more than 150 witnesses. Therefore, the trial is not likely to get
over soon. Based on all these aspects, the Appellant deserves to be
released on bail. It is made clear that these observations are made
only for the purpose of deciding the question of grant or refusal of
bail to the Appellant. The trial Court shall not be influenced by
these observations. Based on this discussion, the Appellant has
made out a case for grant of bail.
29. Hence, the following order:
:: O R D E R ::
i. The Appeal is allowed.
ii. The order dated 5.3.2024 passed by the learned District Judge-1 &
Special (NIA) Judge, Nashik below Exhibit-19 in Special (ATS)
Case No.24/2023, is set aside.
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iii. The Appellant is directed to be released on bail in connection with
NIA Special (ATS) Case No.24/2023 before the learned District
Judge-1 & Special (NIA) Judge, Nashik, arising out of C.R.
No.20/2022 registered with Anti Terrorism Squad, Kalachowky
Police Station, Mumbai, on his executing P. R. bond in the sum of
Rs.50,000/- (Rupees Fifty Thousand only) with one or two sureties
in the like amount; subject to following conditions:
I] The Appellant shall deposit his Passport, if any, with the
investigating agency, before the Appellant is released on bail.
II] The Appellant shall report to the ATS Kalachowky police
station, Mumbai on every alternate Saturday, between
4:00p.m. to 5:00p.m.
III] The Appellant shall not tamper with the evidence and shall
not influence or tamper any witness.
IV] The Appellant shall remain present on all the dates before the
Trial Court and shall co-operate in expeditious disposal of
the Trial.
iv. The Appeal is disposed of.
( S.M. MODAK, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
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PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE
Date:
2025.04.28
15:34:22 +0530
