Imran Ahmed @ Imran Khan vs National Investigating Agency
2021 Latest Caselaw 7005 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22nd DAY OF DECEMBER 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

              CRL. APPEAL NO.1640 OF 2021
BETWEEN:

IMRAN AHMED @ IMRAN KHAN
S/O ILYAS AHMED
AGED ABOUT 38 YEARS
R/AT NO.28, 7TH CROSS
KAVERI NAGAR, R.T. NAGAR POST
BANGALORE-560032.
                                            ... APPELLANT
(BY SRI. TANVEER AHMED MIR, ADV., A/W
    SRI. KARTIK VENU, ADV., FOR
    SRI. MOHAMMED TAHIR, ADV.,)

AND:

NATIONAL INVESTIGATING AGENCY
MINISTRY OF HOME AFFAIRS
GOI HYDRABAD BRANCH OFFICE
REP. BY SPL PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP TO VIDHANA SOUDHA
BANGALORE-560001.
                                        ... RESPONDENT
(BY SRI. P. PRASANNA KUMAR, SPL. PP)
                           ---

     THIS   CRL.A IS  FILED   U/S.21(4)  OF  NATIONAL
INVESTIGATION AGENCY ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 27.08.2021 AND GRANT REGULAR BAIL
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TO APPELLANT IN SPL.C.C.NO.141/2021 WHEREIN THIS
APPELLANT    IS   ARRAIGNED    AS   ACCUSED   NO.8,   U/S
120(B),143,145,147,188,353 AND 427 R/W 34 AND 149 OF IPC,
SECTION 16, 18 AND 20 OF UNLAWFUL ACTIVITIES
(PREVENTION) ACT AND SECTION 2 OF THE PREVENTION OF
DESTRUCTION AND LOSS OF PROPERTY ACT, SAME IS PENDING
ON THE FILE OF XLIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL COURT FOR NIA CASES, BENGALURU (CCH-
50).

     THIS CRL. APPEAL HAVING BEEN HEARD AND RESERVED
FOR   JUDGMENT    ON   17.12.2021, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ALOK ARADHE J.,
DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal under Section 21(4) of the National

Investigation Agency Act, 2008 arises from an order dated

27.08.2021 passed by 49th Additional City Civil and Sessions

Judge & Special Court (NIA Court) by which application

preferred by the appellant under Section 439 of the Code of

Criminal Procedure, 1973 has been dismissed.

2. Facts leading to filing of this appeal briefly stated are

that the case of prosecution is that in the night at about 8.45

p.m. on 11.08.2020, a group of people gathered in front of

K.G.Halli police station demanding the arrest of one

Mr.Naveen P., nephew of Sri.R.Akhanda Srinivas Murthy, MLA

of Indian National Congress from Pulakeshinagar, on the

ground that aforesaid Mr.Naveen had allegedly posted

derogatory remarks against Prophet Mohammad in his

facebook account. It is the further case of the prosecution

that despite complaint and FIR against Mr.Naveen being

registered, the mob gathered in front of K.G.Halli police

station did not disperse and the police had to resort to lathi

charge. The mob however started attacking the police and

public properties on a large scale and damaged several public

and private properties. It is also the case of prosecution that

despite imposition of Section 144 of Cr.P.C. in and around

the police station, the violation escalated and the mob

started pelting stones all around. It is also stated that

accused persons shouted slogans and attacked police station

and police personnel who were on duty. It is further stated

that unruly mob started vandalizing and setting fire to the

vehicles parked at K.G.Halli police station and nearby places.

3. It is the case of the prosecution that accused

persons were possessing iron rods, wooden sticks,

inflammable substances, stones and other weapons. Despite

the best efforts made by the police, the mob refused to

disperse and continued with violent acts. It is also stated

that during the incident, 12 vehicles were damaged. The

police inspector of K.G.Halli police station, Mr.Ajay Sarathy

lodged a complaint and First Information Report was

registered in Crime No.229/2020 on 12.08.2020 against 14

named persons including the appellant and some other

unknown persons. On 17.08.2020, after obtaining

permission from the jurisdictional Court, provisions of Section

15, 16, 18 and 20 of Unlawful Activities (Prevention) Act,

1967 (hereinafter referred to as 'the 1967 Act' for short),

were invoked.

4. It is the case of the prosecution that taking into

account the gravity of the matter, the Central Government

by an order dated 21.09.2020 handed over the investigation

to the National Investigation Agency (hereinafter referred to

as 'the NIA' for short). Accordingly, fresh First Information

Report was registered on 21.09.2020 under Sections 143,

147, 148, 353, 333, 332, 436, 427 read with Section 149 of

Indian Penal Code and Section 4 of the Prevention of Damage

to Public Property Act, 1984.

5. The appellant was arrested by NIA and was

remanded to judicial custody. The appellant filed an

application for grant of bail which was rejected by the Special

Court by an order dated 27.08.2021 inter alia on the ground

that allegations made against the appellant are serious in

nature and overt act committed by him prima facie indicate

that it amounts to "terrorist act", as defined under Sections

15 and 20 of 1967 Act. In the aforesaid factual background,

this appeal has been filed.

6. Learned counsel for the appellant submitted that the

role assigned to the appellant in the charge sheet cannot be

read in isolation in the context of facebook post made by

Mr.Naveen wherein he had posted derogatory remarks

against Prophet Mohammad. It is further submitted that

participation of the appellant in a protest in a peaceful

manner before police station against the derogatory post and

insistence for suitable action against aforesaid Naveen, does

not amount to intention or premeditation on the part of the

appellant to inflict violence. It is also urged that peaceful

gathering assembled in front of police station, subsequently

became unruly and actions of the appellant cannot be

described as terrorist act and his actions would fall within the

scope and ambit of provisions of Indian Penal Code. It is also

argued that the appellant has joined the investigation and

has cooperated with the investigating agency.

7. It is also pointed out that a charge sheet has been

filed against the appellant on the basis of statement made by

8 police personnel and 4 civilian witnesses. It is also

submitted that aforesaid witnesses have not given any

statement or have not filed any complaint against the

appellant when the police investigated Crime No.229/2020.

It is also urged that from the statement of witnesses cited in

the charge sheet, it cannot be even prima facie inferred that

appellant is involved in commission of offence under Sections

15, 16, 18 and 20 of the 1967 Act. It is pointed out that

from the charge sheet the ingredients of Section 2(1)(o) and

Section 15 of the 1967 Act are not made out. It is urged

that there is no material on record with regard to the

conspiracy to commit an act of terrorism. It is also urged

that 138 persons had been named as accused and 240

witnesses are cited in the charge sheet and therefore, the

chances of early trial are bleak.

8. It is also contended that charge sheet does not

contain any incriminating material with regard to presence of

the appellant on the scene of offence. It is also contended

that powers of Constitutional Court in dealing with a prayer

for grant of bail are not curtailed by restrictions contained in

the statute namely Section 43D(5) of the 1967 Act. It is also

urged that if the classic triple test is applied namely gravity

of offence alleged, possibility of evidence being tampered and

possibility of accused evading trial, if applied to the case of

the appellant, the appellant will be entitled to bail. In

support of aforesaid submission, reliance has been placed on

the decisions in 'KARTAR SINGH Vs. STATE OF PUNJAB'

(SC) (1994) 3 SCC 569, 'HITENDRA VISHNU THANKUR

AND ORS. Vs. STATE OF MAHARASHTRA' (SC) (1994) 4

SCC 602, 'PEOPLE'S UNION FOR CIVIL LIBERTIES Vs.

UNION OF INDIA' (SC) (2004) 9 SCC 580, 'STATE (NCT

OF DELHI) Vs. NAVJOT SANDHU @ AFSAN GURU' (SC)

(2005) 11 SCC 600, '(THE STATE) THE NATIONAL

INVESTIGATION AGENCY, MINISTRY OF HOME

AFFAIRS, GOVT. OF INDIA Vs. AKHIL GOGOI'

(GAUHATI HIGH COURT) PARAS 18-28, 'KEHAR SINGH

& ORS. Vs. STATE' (SC) (1988) 3 SCC 609, 'STATE Vs.

NALINI & ORS. (SC) (1999) 5 SCC 253, 'UNION OF

INDIA Vs. K.A.NAJEEB' (SC) (2021) 3 SCC 713,

'THWAHA FAISAL Vs. UNION OF INDIA' (SC) IN

CRL.A.1302/2021 DECIDED ON 28.10.2021 AND

'MOHD. HAKIM Vs. STATE (NCT OF DELHI)' (DELHI

HIGH COURT) IN CRL.A.170/2021 DECIDED ON

06.10.2021.

9. On the other hand, learned counsel for NIA

submitted that appellant is the President of Social Democratic

Party of India, K.G.Halli Ward and conspired to carry out

terrorist act and illegal act of destroying public property with

an intention to create fear psychosis in the mind of public in

general. It is submitted that prima facie material is available

in the charge sheet to show the involvement of the appellant

in the mob violence which took place on 11.08.2020. It is

also urged that bail application of accused Nos.14, 15, 16,

18, 19, 20, 21, 22, 23 and 24 in the same case are rejected

by Special Court and the orders passed by the Special Court

have been affirmed by another Division Bench of this Court in

Crl.A.Nos.585/2021, 576/2021, 582/2021 and 745/2021 vide

judgment dated 15.09.2021.

10. It is further submitted that intension to commit an

act of terrorism need not exist at the time of commission of

offence and the act committed by the appellant is covered

under Section 15(1)(iv) of the 1967 Act. It is also urged that

there is sufficient material to attract Section 43D(5) of the

1967 Act and therefore the appellant is not entitled to bail.

In support of aforesaid submission, reliance has been placed

on the decisions of the Supreme Court in 'R.VENKATA

KRISHNAN Vs. CENTRAL BUREAU OF INVESTIGATION'

(2009) 11 SCC 737, 'STATE THROUGH CBI Vs.

DR.ANOOP KUMAR' (2017) 15 SCC 560, 'SIDDHARTH

VASISHT Vs. STATE' (2010) 6 SCC 1 AND 'PRASHANT

BHARTI Vs. STATE' (2013) 9 SCC 293.

11. We have considered the submissions made on both

sides and have perused the record. Section 43D(5) to (7) of

the 1967 Act read as under:

43D(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub- sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and

has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.

12. The aforesaid provision has been analysed by the

Supreme Court in 'NATIONAL INVESTIGATING AGENCY

Vs. ZAHOOR AHMED SHAH WATALI' (2019) 5 SCC 1 and

in paragraph 23 it was held that it is the duty of the Court to

be satisfied that there are reasonable grounds for believing

that accusation against the accused is prima facie true or

otherwise. It was further held that by its very nature the

expression 'prima facie true' would mean materials /

evidence collated by the investigating agency against the

accused in First Information Report must prevail until

contradicted or overcome or disapproved by other evidence.

It was further held that averments made in the First

Information Report should show the complicity of accused in

commission of stated offence. The aforesaid decision was

relied upon by Supreme Court in 'THWAHA FASAL Vs.

UNION OF INDIA' (2021) SCC ONLINE 1000, wherein it

was stated in paragraph 20 that the criteria for deciding the

application for grant of bail was laid down. Paragraph 20 of

the aforesaid judgment reads as under:

"20. While deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI.

The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a

part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is."

13. On the touch stone of the criteria laid down by the

Supreme Court while dealing with the prayer for grant of bail,

we may advert to the material against the appellant. From

the charge sheet, it is evident that police witnesses namely

Mr.Ajay Sarathy, P1 (CW-1), Mr.Rajesh H., PSI (CW-3)

Mr.Hiranayappa HC (CW-7) Mr.Sandeep, PC (CW-9),

Mr.Chand Sab Pinjara (CW-13), Mr.Manjunatha (CW-15),

Mr.Nagaraju (CW-23) and Mr.Santosh (CW-26), have

identified the appellant along with other co-accused persons,

who had set ablaze a bike parked near K.G.Halli police

station by pouring petrol on it. The aforesaid witnesses have

also stated that the appellant convened a meeting before the

incident and instigated the other accused persons to commit

violence. A civil witness namely Mr.Athet Sameer (CW-36)

who was working in the office of Social Democratic Party of

India has stated that on 11.08.2020, before the riots took

place at K.G.Halli police station, a meeting was held which

was attended by the appellant, Nasiruddin and others.

14. Syed Kaleem (CW-38) has also stated that he

attended the meeting on 11.08.2020 from 20.45 hrs to 21.15

hrs which was headed by Nasiruddin who is absconding. It

has further been stated by him that the appellant attended

the meeting. Mohd. Arafath (CW-37) has stated that

appellant attended the meeting and went to K.G.Halli police

station after the meeting.

15. Thus, from the charge sheet it is evident that the

appellant is the President of Social Democratic Party of India,

K.G.Halli ward. It is also evident that before the riots took

place on 11.08.2020, appellant attended the meeting

between 20.45 hrs and 21.15 hrs. The presence of the

appellant on the scene of the incident as well as his

participation in burning of a vehicle parked outside the

K.G.Halli police station is also established. From the material

on record, it is evident that the appellant has performed a

prominent role in riot and mob violence. The appellant being

the President of Social Democratic Party of India, K.G.Halli

ward, his possibility of interfering with the fair trial by

influencing or threatening the witnesses cannot be ruled out.

16. The act committed by the accused along with other

accused persons on 11.08.2020 as stated in the charge sheet

discloses the conspiracy to commit the aforesaid acts of

violence and destruction of public properties and to create a

fear psychosis in the mind of law abiding citizens. There is

no particular form or means by which a state of terror can be

struck in the minds of people and the purpose of a terrorist

act is to create fear psychosis in the minds of public in

general. By his activity, the appellant has attempted to

create fear and panic amongst public in general.

17. Section 18 of the 1967 Act would take within its

view the persons who abet, incite, knowingly facilitates the

commission of terrorist act. Section 15 of the 1967 Act

provides that usage of inflammable substance to cause

injuries to a person or damage property with an intention to

strike terror amounts to a terrorist act. From the charge

sheet, it is evident that petrol was used while attacking the

police personnel and damaging the public property.

Therefore, prima facie, provisions of Section 15 of the 1967

Act would be attracted. The acts attributed to the appellant

were with an intention to strike terror in general public. A

coordinate Bench of this Court, while dealing with bail

applications of other co-accused persons, has rejected the

same in view of provision contained in Section 43D(5) of the

1967 Act.

18. For the aforementioned reasons, provisions of

Section 43D(5) of the 1967 Act are applicable to the facts

and the material in the charge sheet indicates that there are

reasonable grounds to believe that accusation against the

appellant is prima facie proved. The appellant is therefore

held not entitled to be released on bail.

In the result, this criminal appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

RV