Sri Faraz Pasha vs State By
2023 Latest Caselaw 3662 Kant

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                                                             NC: 2023:KHC:21983-DB
                                                                  CRL.A No. 90 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 26TH DAY OF JUNE, 2023

                                                 PRESENT
                       THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                    AND
                               THE HON'BLE MR JUSTICE G BASAVARAJA
                                  CRIMINAL APPEAL NO. 90 OF 2023


                      Between:

                      Sri Faraz Pasha
                      S/o. Amjad Pasha
                      Aged 26 years,
                      No.35, Hosa Beedi,
                      Behind Manjunatha Talkies,
                      Kumbara Gundi,
                      Shivamogga,
                      Presently in Judicial Custody at
                      Central Prison, Mysuru.
                                                                            ...Appellant
                      (By Sri H.N.Divyateja, Advocate for
                          Sri Rahamathulla Kothwal, Advocate)
Digitally signed by
C K LATHA             And:
Location: HIGH
COURT OF              State by
KARNATAKA
                      National Investigation Agency,
                      Bengaluru,
                      Represented by its SPP
                      Bangaluru.
                                                                          ...Respondent
                      (By Sri Prasanna Kumar P., Spl.P.P.,)

                            This Criminal Appeal is filed u/s.21(4) of the National
                      Investigation Agency Act, 2008, praying to set aside the
                      judgment in Spl.C.C.No.2000/2022, dated 17.12.2022 passed
                      by the XLIX Additional City Civil and Sessions Judge Special
                      Court for trial of N.I.A. cases, Bengaluru and etc.,
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                                         NC: 2023:KHC:21983-DB
                                               CRL.A No. 90 of 2023




     This Criminal Appeal, coming on for admission, this day,
Sreenivas Harish Kumar J., delivered the following:

                             JUDGMENT

This appeal is filed by the accused No.8 who

has been denied bail by the Special Court for trial

of NIA cases by its order dated 17.12.2022 in

Spl.C.C.No.2000/2022.

2. The appellant and other accused are

imputed of killing Harsha @ Hindu Harsha in

between 8.45 and 9.15 PM on 20.2.2022 at a place

opposite to Kamat Petrol Bunk, Bharati Colony

Cross in Shimoga City. FIR was registered at

Doddapete Police Station and, while the case was

being investigated by the State police, National

Investigation Agency took over investigation and

filed charge sheet for the offences punishable

under sections 143, 201, 204, 212, 341 and 302

read with section 34 IPC, and sections 16, 18, 19

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and 20 of Unlawful Activities (Prevention) Act,

1967.

3. The Special Court has found existence of

prima facie case against the accused No.8, and to

draw this conclusion, it has found from the charge

sheet materials that he became a member of

conspiracy by agreeing to keep watch on the

movements of Harsha and provide information to

other accused. The call records show that accused

No.8 was constantly updating the movement of

Harsha to co-accused which enabled the latter to

attack and kill him. The statements of CW-55,

CW-65, CW-66 and CW-70 indicate the presence of

accused No.8 at the scene of occurrence; the CCTV

footage collected at the petrol bunk show the

movement of accused No.8 in a swift car with

registration number CG-13/C-4496; and his mobile

phone contains images of weapons used for

commission of offence and photograph of deceased

NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023

Harsha with injuries on his body. Therefore, the

Special Court has held that these facts prima facie

establish the involvement of accused No.8 in the

crime being a member of larger conspiracy.

4. Sri Divyateja H N, learned counsel for the

appellant-accused No.8 assails the findings of the

Special Court urging the points that there are no

materials indicative of the fact that accused No.8

was a member of conspiracy, that as the charge

sheet indicates, accused No.1 to 7 could be called

conspirators; that accused No.8 was enticed by

accused No.6 to recce Harsha, and if the former

agreed for the same without having knowledge of

consequences and provided information about

movements of Harsha to other accused, he did not

become member of conspiracy. It was his another

point of argument that accused No.8 cannot be

said to have participated or involved in terrorist

activity as he did not have intention to commit any

NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023

of the acts mentioned in section 15 of the Unlawful

Activities (Prevention) Act (for short hereinafter

referred to as 'the Act'). He has read the

statements of the witnesses as also the confession

statements of all the accused to vehemently argue

that accused No.8 had no intention nor agreed for

being a part of conspiracy.

4.1. Sri Divyateja argued that accused 9 and

10 have been released on bail, the appellant is

therefore entitled to claim bail on the ground of

parity. He placed reliance on too many case laws

in support of his argument, but in our opinion

except one judgment of the Supreme Court in the

case of Thwaha Fasal vs Union of India

[Criminal Appeal 1302/2021], we do not think

it necessary to refer to the rest as they deal with

the basic principles applicable to bail

jurisprudence.

NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023

5. Sri P.Prasanna Kumar, learned standing

counsel for National Investigation Agency,

submitted that section 43D (5) of the Act requires

that the prosecution should satisfy the court that

accusations are prima facie true, and if it is

demonstrated the court cannot grant bail. The

other factors such as the young age of the

accused, that he is the sole bread earner for the

family, poverty, responsibility to look after aged

parents, standing in society, absence of criminal

antecedents, etc., are not to be considered for the

purpose of granting bail.

5.1. Sri P.Prasanna Kumar further argued that

section 15 of the Act clearly states that even doing

an act by any other means of whatever nature to

cause or likely to cause death of any person comes

within the ambit of the term 'terrorist act' and in

this case, the charge sheet clearly discloses the

fact that accused 1 to 8 were all the members of

NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023

conspiracy to cause the death of Harsha who was a

pro Hindu activist. He argued that there was no

personal enmity between the deceased and the

accused; the latter decided to kill Harsha to strike

terror among Hindus and send a message that the

Muslims do not tolerate anything that infringes

their religion. Killing of Harsha was nothing but a

terrorist act. He referred to section 16 (1) (a) and

section 18 of the Act to argue that the

punishments prescribed thereunder are severe;

and death penalty can also be imposed for the

offence under section 16(1)(a).

6. Analysis of section 43D (5) makes it very

clear that the restriction found therein is

applicable for the offences punishable under

Chapters IV and VI of the Act. The proviso to the

section states that bail should not be granted if

the court is able to form an opinion based on the

case diary or the report under section 173 Cr.P.C.

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that there are reasonable grounds for believing

that accusation against a person is prima facie

true. The expression used is 'prima facie true' and

not 'prima facie case'. Obviously it is the duty of

the public prosecutor to convince the court that

the case diary or the report under section 173 of

Cr.P.C. indicates that the accusations are prima

facie true. As to the meaning of the term 'prima

facie true', a judgment of the Supreme Court in

the case of NIA vs Zahoor Ahmad Shah Watali

[(2019) 5 SCC 1] may be referred to. In para

23 it is held,

"23. By virtue of the proviso to subsection (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have

NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023

some bearing while considering the prayer for bail in relation to offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be

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good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. ..........."

7. The above judgment makes it clear that

whenever court has to arrive at a satisfaction that

the accusations against an accused appear to be

prima facie true, the degree of satisfaction is

lighter than the degree of satisfaction to be

recorded for considering an application for

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discharge of an accused or framing charges. It

can also be said that if the materials placed before

the court are sufficient enough to form an opinion

that they cannot be out rightly rejected as

complicity of the accused in the commission of

crime apparently appears, the court can record a

satisfaction that the accusations are prima facie

true.

8. In the case on hand, the accusation

leveled against the appellant is that he acted as an

information provider to the accused No.6 by

keeping watch on the movements of Harsha. The

existence of materials to this extent against the

appellant is not disputed by the learned counsel

for the appellant, but his argument was the charge

sheet materials do not disclose existence of

intention in him to commit a terrorist act within

the meaning of section 15 of the Act and that even

there are no materials to hold him a member of

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conspiracy. It is difficult to accept this argument

for the following reasons:

Section 18 of the Act provides for punishment

for the offence of conspiracy and the said section

reads as below:

"18. Punishment for conspiracy, etc.- Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."

9. It can be noticed here that whoever

knowingly facilitates the commission of a terrorist

act can be punished. Section 15 deals with the

meaning of 'terrorist act'. The word 'whoever'

found in the beginning of section 15 is interpreted

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by a coordinate bench of this court in the case of

Zabiulla @ Zabibulla vs State of Karnataka [Criminal

Appeal No. 1527/2022] in the following way :

"19. In the above Section the term "Whoever" refers to any person committing any act mentioned therein with an intention to threaten or likely to threaten the unity, integrity, security and sovereignty of India or doing such act not only to strike the terror but which is likely to strike the terror amounts to terrorist act. Such person need not be a member of any terrorist organization or a terrorist gang."

10. In this case whether or not the accused

are the members of terrorist gang or terrorist

organization is not so material at this stage, but

the evidence collected by the investigating officer

shows that accused No.1 to 6 constituted informal

body of individuals and chose Harsha to be killed

in order to strike terror among Hindus. It is true

that the appellant who is accused No.8 comes into

picture at a later stage. If the materials do not

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indicate that appellant was appointed to recce the

deceased without disclosing to him the purpose of

conspiracy among accused 1 to 7, he cannot be

called a member of conspiracy nor a member of

body of individuals who wanted to eliminate

Harsha. But the materials indicate that accused

No.6 would reveal to him the plan hatched by him

and other accused to eliminate Harsha and seek

his help. After coming to know the plan of accused

1 to 7, he would agree to follow Harsha and

provide information to them so that they could

execute their plan. Therefore appellant also

became the member of conspiracy by being a

facilitator to provide information. It is a settled

principle that any person may become member of

conspiracy at any point of time and it is also not

necessary that one person of the conspiracy should

be knowing the other person. If the role attributed

to every member of conspiracy takes to

accomplishment of ultimate goal of the

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conspirators, every member of the conspiracy is as

much liable as another. Element of intention to

attract section 15 of the Act as argued by the

counsel for the appellant is a matter of inference

from the proved facts, hardly direct evidence is

available to prove the intention as it is something

concerned with state of mind. Here as the

materials indicate very well that appellant agreed

to provide information only after coming to know

the intention of accused 1 to 7, it can be said at

this stage that there are materials indicating that

the appellant also shared the intention of accused

1 to 7. The call records collected by the

investigating officer, the CCTV footages and the

statements of the witnesses do point to the

appellant's active involvement in the commission

of crime. Therefore the prosecution has been able

to show that its case is prima facie true.

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11. The judgment of the Supreme Court in

the case of Thwaha Fasal (supra) is not helpful to

the appellant for the reason that the accused

therein were prosecuted for the offences

punishable under Sections 38 and 39 of the Act

and 120(B) of IPC. The offence under Section 13

of the Act was also leveled against accused No.2.

The Hon'ble Supreme Court based on the facts and

circumstances of the case before it came to

conclusion that the charge sheet did not indicate

active participation of accused No.1 and 2 in the

activities of CPI (Maoist) and therefore Section

43D (5) was not applicable. The same is not the

case here. The role attributed to the appellant is

very much forthcoming from the charge sheet

materials.

12. One line of argument put forward by Sri

P.Prasanna Kumar is worth acceptance. The

argument is that once the prosecution is able to

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establish that the accusations found in the charge

sheet against the accused are prima-facie true,

bail cannot be granted at all and the other factors

like the young age of the accused, absence of

antecedents etc., should not influence the court to

grant bail.

13. The language of Section 43D is not in

favour of granting bail once accusations appear to

be prima-facie true. This view is fortified by sub-

Section (6) of Section 43D which says that the

restriction on granting of bail specified in sub-

Section (5) is in addition to the restrictions under

the Code (Cr.P.C) or any other law for the time

being in force on granting bail. That means

restrictions cannot be ignored lightly having regard

to other factors as urged by the learned counsel

for the appellant.

14. The offences under the Act are

undoubtedly offences against the nation

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threatening its unity, integrity, security and

sovereignity. It is also an offence against the

society. As the facts of this case disclose, all the

accused who appear to be communal fanatics and

had no personal enmity against the deceased

chose him for assassination with a view to striking

terror among Hindus. Therefore young age of

the appellant or his having no criminal antecedents

is not a ground to be considered for granting bail

to him.

In our opinion, the Special Court has rightly

dismissed the application for bail. Appeal is

therefore dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

CKL/KMV