Kerala High Court
Abdul Razak @ Abu Ahmed vs Union Of India on 10 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
Friday, the 10th day of February 2023 / 21st Magha, 1944
CRL.M.APPL.NO.2/2022 IN CRL.A NO. 994 OF 2022
SC 2/2018 OF SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM
APPLICANT/APPELLANT:
ABDUL RAZAK @ ABU AHMED S/O.K.P.AHMED KUNJI, PANDARAVALAPPIL HOUSE,
PALLIYATH, CHEKKIKULAM P.O, KANNUR, PIN - 670592
RESPONDENT/RESPONDENT:
NATIONAL INVESTIGATION AGENCY, KOCHI REPRESENTED BY ITS SPECIAL
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the
applicant/appellant by the judgment in S.C.No.02/2018 of the Special Court
for the NIA cases ,Ernakulam dated 15.07.2022 and release the applicant /
appellant on bail pending disposal of the above criminal appeal in the
interests of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S. VISHNU BABU, PRANOY K.KOTTARAM,
P.YADHU KUMAR, SWETHA K.S., Advocates for the petitioner and of SRI.S.MANU
,DEPUTY SOLICITOR GENERAL OF INDIA for the respondent, the court passed
the following:
P.T.O
ALEXANDER THOMAS & SOPHY THOMAS, JJ.
==========================
Crl.M.A.No. 1 of 2022 in Crl.Appeal No.904 of 2022
[Arising out of the impugned judgment in S.C.No. 2/2018/NIA
on the file of the Special Court for Trial of NIA Cases, Ernakulam]
Crl.M.A.No. 2 of 2022 in Crl.Appeal No.994 of 2022
[Arising out of the impugned judgment in S.C.No. 2/2018/NIA
on the file of the Special Court for Trial of NIA Cases, Ernakulam] &
Crl.M.A.No. 1 of 2022 in Crl.Appeal No.847 of 2022
[Arising out of the impugned judgment in S.C.No. 2/2018/NIA
on the file of the Special Court for Trial of NIA Cases, Ernakulam]
========================
Dated this the 10th day of February, 2023
ORDER
Sophy Thomas, J.
These applications are filed by A1, A2 and A5 respectively in
SC No.2 of 2018/NIA on the file of Special Court for the Trial of NIA
Cases, Ernakulam, who are the appellants in the above appeals,
under Section 389(1) of Cr.P.C, seeking suspension of sentence
and release on bail.
2. The applicants/appellants in Crl.Appeal Nos.904 of 2022
and 847 of 2022 (A1 and A5 in SC No.2 of 2018) were convicted
under Sections 38 and 39 of the Unlawful Activities (Prevention)
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 2
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
Act (UAP Act) and Section 120B r/w Section 125 of IPC and
Sections 38 and 39 of UAP Act, and sentenced to undergo rigorous
imprisonment for seven years and fine under each count, which
shall run concurrently.
3. The applicant/appellant in Crl.Appeal No.994 of 2022 (A2
in SC No.2 of 2018), was convicted under Section 38 of UAP Act
and Section 120B r/w Section 125 of IPC and Sections 38 and 39 of
UAP Act and sentenced to undergo rigorous imprisonment for six
years and fine under each count, which shall run concurrently.
4. The applicants/appellants were arrested on 25.10.2017
and since then, they are in judicial custody. They were never
released on bail during trial and they have completed more than
five years in custody. The judgment of conviction was delivered on
15.07.2022. Since set off was allowed for the period of remand
during trial, major portion of their sentence is already over, and the
period remaining is less than two years.
5. According to the applicants/appellants, the prosecution
failed to prove its case beyond reasonable doubt, and there is
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 3
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
every chance for them to succeed in the appeal. So, their prayer is
to suspend the sentence and to release them on bail or else, the
appeals may become infructuous.
6. The respondent-Union of India represented by National
Investigation Agency, Kochi, filed separate objections in the
Crl.M.As contending inter alia that the learned Special Court for the
Trial of NIA cases convicted and sentenced the applicants/
appellants on analysing the entire facts, evidence and
circumstances in detail, the approvers clearly spoke about the
involvement of the applicants/appellants and their testimony was
corroborated by other witnesses coupled with documentary and
scientific evidence, the trial court, based on legal evidence, found
that, the applicants/appellants, as part of a criminal conspiracy,
and with the intention of joining ISIS, a proscribed terrorist
organisation, tried to cross over to Syria to further its activities,
there was sufficient evidence to conclude that the
applicants/appellants associated themselves with the terrorist
organisation ISIS etc. etc., and their petition to suspend the
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 4
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
sentence and to release them on bail is filed with dubious intention,
as they want to further the activities of ISIS, by finishing their task
before leaving the country to join the holy war of ISIS. According
to the respondent, if the applicants/appellants are released on bail,
there is every chance for them to abscond and to indulge in
terrorist activities, as they are highly motivated and charged with
ISIS ideology, and that they may go to ISIS prominent areas for
conducting Hijra and to spread the violent ISIS ideology, and
hence their applications are liable to be dismissed.
7. The brief facts of the case for the purpose of these
applications can be stated as follows:
The DySP, Kannur, Sri.P.P Sadanandan, got reliable
information that, several youngsters from northern Kerala had
joined the proscribed terrorist organisation Islamic State of Iraq
and Syria (ISIS)/Daish) and that they have migrated to Syria and
Afghanistan to perform Hijra (migration) for indulging in violent
jihad. On a secret enquiry conducted by him, it was revealed that
accused Nos.1 to 6, named in the charge sheet, who belonged to
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 5
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
Kannur District, attempted to join ISIS/Daish for indulging in
violent jihad, as part of waging war against Asiatic powers at peace
with the Government of India. A1, A2 and A3 were intercepted by
Turkish authorities while they were trying to cross over to Syria,
and they were deported back to India. A4 was intercepted at the
Mangalore Airport by the immigration authorities while he was
going to Syria through UAE to perform Hijra. A5, one of the
masterminds in teaching ISIS/Daish ideology in Kerala,
indoctrinated and recruited youngsters into the proscribed terrorist
organisation, besides motivating and sending them to the Islamic
State announced by ISIS/Daish for waging war against the Asiatic
powers at peace with the Government of India. A5 had booked
tickets to exit India, but he cancelled the same on knowing that A4,
his associate, was arrested by the immigration authorities at
Mangalore Airport. There is unconfirmed report that A6 crossed
over to Syria and was killed while indulging in violent jihad.
8. The DySP, Kannur suo motu registered Crime No.1010 of
2017 of Valapattanam Police Station in Kannur District, against
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 6
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
accused Nos.1 to 5 under Sections 38 and 39 of the UAP Act and
arrested all of them on 25.10.2017. On 16.12.2017, NIA took
over the investigation and re-registered the crime as
RC-02/2017/NIA/KOC at the NIA Police Station, Kochi, as per
orders of the Ministry of Home Affairs, Government of India. On
completion of investigation, NIA filed charge sheet against AI
Midlaj, A2 Abdul Razak, A5 Hamsa and A6 Abdul Khayyum for
offences punishable under Sections 120B and 125 of IPC and
Sections 38, 39 and 40 of the UAP Act. Accused Nos.3 and 4 were
turned as approvers. Learned Special Court for the Trial of NIA
cases took cognizance of the offences and the case was taken on
file of that court as SC No.2 of 2018/NIA.
9. Trial was conducted by examining PWs 1 to 143, marking
Exts.P1 to P236, Exts.D1 to D4 and identifying M.Os 1 to 23. After
elaborate hearing advanced from either side, the learned Trial
Judge convicted and sentenced the applicants/appellants vide
impugned judgment dated 15.07.2022, and since death of A6 was
not confirmed officially, his case was split up and re-filed.
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 7
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
10. Learned counsel Sri.Pranoy K.Kottaram, appearing for
the applicant/appellant in Crl.Appeal No.994 of 2022(A2 in SC No.2
of 2018) would contend that, the applicant is in judicial custody for
more than five years, and he was convicted only under Section 38
of the UAP Act and Section 120B r/w Section 125 of IPC and
Sections 38 and 39 of UAP Act, and his substantive sentence is only
six years of rigorous imprisonment, as the imprisonment under
different counts will have to run concurrently. According to him, his
period of sentence will be over within one year, and if the appeal is
not heard and disposed of within that period, it will become
infructuous.
11. Learned counsel for the applicant/appellant in Crl.Appeal
No.904 of 2022, Sri.V.T Raghunath, and learned counsel for the
applicant/appellant in Crl.Appeal No.847 of 2022, Sri. K.N Abhilash,
also would contend that the applicants are in judicial custody for
more than five years, and they have also completed more than
80% of the period of their sentence. According to them, the appeal
also to be construed as a facet of trial when it comes to the
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 8
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
consideration of bail on suspension of sentence, applying the
benefit available under Section 436A of Cr.P.C. They further
contended that the above appeals are of the year 2022 and the
records are voluminous, and so the appeals are not likely to be
taken up and disposed of immediately, which will render the
appeals infructuous. Moreover, the evidence available against them
is feeble and not sufficient to enter upon a conviction. According to
them, there is fair chance for them to succeed in the appeal.
Sections 38 and 39 of the UAP Act prescribes punishment of
imprisonment for a term not exceeding ten years or with fine or
with both. So, they would contend that, the offences alleged
against them under the UAP Act were punishable even with fine
only, without imposing any substantive sentence. For all these
grounds, they would canvass for suspension of their sentence and
to release them on bail.
12. In Preet Pal Singh vs. State of Uttar Pradesh and
another [(2020) 8 SCC 645], the Apex Court held that, 'there is a
difference between grant of bail under Section 439 Cr.PC in case of
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 9
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
pre-trial arrest and suspension of sentence under Section 389
Cr.PC and grant of bail, post conviction. In the earlier case, there
may be presumption of innocence, which is a fundamental
postulate of criminal jurisprudence, and the courts may be liberal,
depending on the facts and circumstances of the case, on the
principle that bail is the rule and jail is an exception, as held by this
Court in Dataram Singh v. State of U.P. [(2018) 3 SCC 22].
However, in case of post-conviction bail, by suspension of
operation of the sentence, there is a finding of guilt and the
question of presumption of innocence does not arise. Nor is the
principle of bail being the rule and jail an exception attracted, once
there is conviction upon trial. Rather, the court considering an
application for suspension of sentence and grant of bail, is to
consider the prima facie merits of the appeal, coupled with other
factors. There should be strong compelling reasons for grant of
bail, notwithstanding an order of conviction, by suspension of
sentence, and this strong and compelling reason must be recorded
in the order granting bail, as mandated in Section 389(1) CrPC".
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 10
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
13. In Kalyan Chandra Sarkar vs. Rajesh @ Pappu
Yadav & another [(2004) 7 SCC 528], the Hon'ble Supreme Court
was pleased to observe that, the discretion under Section 389 of
Cr.PC has to be exercised judicially and not in a casual manner.
Even though detailed examination of the merits of the case may
not be required while considering the application, exercise of
jurisdiction has to be based on well settled principles and in a
judicious manner and not as a matter of course. As the discretion
under Section 389(1) is to be exercised judicially, the appellate
court is obliged to consider whether any cogent ground has been
disclosed giving rise to substantial doubts about the validity of the
conviction and whether there is likelihood of unreasonable delay in
disposal of the appeal. Though detailed examination of evidence
and elaborate documentation of the merits of the case need not be
undertaken, there is a need to indicate in such orders, reasons for
prima facie concluding why bail was being granted, particularly
where the accused is charged of having committed a serious
offence.
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 11
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
14. In Preet Pal Singh's case cited supra, the Apex Court
further observed that, in considering an application for suspension
of sentence, the appellate court is only to examine, if there is such
patent infirmity in the order of conviction, that renders the order of
conviction prima facie erroneous. Where there is evidence, that
has been considered by the trial court, it is not open for a court
considering application under Section 389 of Cr.P.C, to re-assess
and/or re-analyse the same evidence and take a different view, to
suspend the execution of sentence and release the convict on bail.
15. The nature of accusation made against the accused, the
manner in which the crime is alleged to have been committed, the
gravity of the offence and its social impact, are all to be looked into
while considering an application for suspension of sentence and to
release the accused on bail.
16. The prosecution case is that the accused persons, six in
number, attempted to join the proscribed terrorist outfit ISIS/Daish
for indulging in violent jihad as part of waging war against Asiatic
powers at peace with the Government of India. A1 and A2 left
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 12
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
India and proceeded to cross over to Syria. A1 and A2 were
arrested by Turkish authorities, and A5, though booked ticket to
exit India, on knowing that A4 was arrested at Mangalore Airport,
cancelled his ticket. So, according to the prosecution, there is clear
and cogent evidence to prove the conspiracy and also to prove the
fact that all of them wanted to cross over to Syria for indulging in
violent jihad, following the call of ISIS. But, according to the
applicants/appellants, there is nothing to prove their conspiracy, or
membership or involvement in ISIS or any other terrorist outfit.
Moreover, there is nothing to show that they did anything
furthering the activities of the terrorist organisation.
17. Terrorism is an evil affecting the life and liberty of
people. It affects the growth of the nation in all respects. In fact,
no religion propagates terrorism or hatred. But, unfortunately,
some fanatics or religious fundamentalists have distorted the views
of religion, for spreading messages of terrorism and hatred,
without realising the amount of damage it is doing to the society as
well as to the country as a whole. Innocent youth attracted by the
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 13
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
call of terrorist organisations fall prey to violence and anti national
activities, destroying the tranquility in society, unmindful of the
freedom, liberty, and safety of their fellow beings, and the integrity
of the nation. Here the allegation is that, the applicants/appellants
wanted to indulge in violent jihad, following the call of ISIS, and
they proceeded to perform Hijra for waging war against Asiatic
powers like Syria, which are at peace with the Government of
India. So, the nature of the offence alleged against the
applicants/appellants are very serious in nature, and we have to
consider the merits of their applications, prima facie to see whether
there are strong compelling reasons for grant of bail, especially
when the presumption of innocence has vanished, as they stand
convicted by the impugned judgment.
18. Going by the guidelines given by the Apex Court in Preet
Pal Singh's case and Kalyan Chandra Sarkar's case cited
supra, while suspending the sentence pending appeal and releasing
the convict on bail, discretion has to be exercised judicially and not
in a casual manner. Though detailed examination of merits of the
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 14
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
case may not be required, exercise of jurisdiction has to be based
on well-settled principles and in a judicious manner and not as a
matter of course. Though detailed examination of evidence and
elaborate documentation of the merits of the case need not be
undertaken, there is a need to indicate in such orders reasons for
prima facie concluding, why bail was being granted particularly
where the accused is charged of having committed a serious
offence. In considering an application for suspension of sentence,
the appellate court has to examine if there is any patent illegality in
the order of conviction, which renders the order prima facie
erroneous. Where there is evidence that has been considered by
the trial court, it is not open to a court considering application
under Section 389 to reassess and/or re-analyse the same
evidence and take a different view, to suspend the execution of the
sentence and release the convict on bail.
19. In this backdrop let us have a glance of the important
materials discussed by the trial court which entailed in conviction of
the applicants/appellants.
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 15
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
20. Admittedly, the first accused was arrested by Turkish
authorities from Istanbul. The evidence of PWs 1, 3, 14 and 26
supported the fact that, A1 while trying to cross over to Syria along
with A3 (who subsequently turned approver, and examined as
PW1), was arrested by the Turkish authorities. In 313 examination,
the first accused himself admitted that he went to Istanbul, but it
was under the instigation of PW1 that he could arrange him a job in
European countries, and he had entrusted his passport also with
him. It has come out in evidence that, PWs 1 and 14 were ardent
believers, workers and supporters of ISIS, a proscribed terrorist
organisation, and they were motivating innocent persons to join
ISIS and that fact is admitted by A1. The trial court, after detailed
discussion of the evidence, came to the conclusion, as seen in para
348 of the impugned judgment, that A1 had close acquaintance
and contacts with A7 Mohammed Shajil, PW1 Rashid, PW14 Afsal,
PW126 and Sri.Shajahan, and there was evidence to show that,
they met together on many occasions and discussed about ISIS
and also about performing Hijra to Syria for joining ISIS. On
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 16
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
14.10.2016, A1 exited India from Mangalore along with A7 Shajil.
On the eve of his departure, a party was conducted in the house of
Sri.Shajil, where A1 and A7 invited others to come and join ISIS.
From Tehran, A1 and A7 joined Shajahan and PW1 Rashid.
Thereafter, they moved together to Istanbul in Turkey where they
met Mr.Abdul Manauf and Mr.Fajid and they stayed together for
more than one month. In January 2017, the Turkish authorities
deported A1 and PW1 to India and they reached Mumbai on
20.01.2017, and via Bangalore they reached Kannur on
21.01.2017. Thereafter, Sri.Shajahan, who was also deported from
Turkey, met A1, PW1 and PW14 and informed that he was again
preparing for Hijra to Syria. A1, PW14 and A6 met together and A6
decided to perform Hijra along with Sri.Shajahan. A2 also decided
to perform Hijra along with A6. A1 and PW1 came to Kannur
Railway Station on 18.04.2017 to see off A2 and A6.
21. Now coming to the second accused, the evidence of
PW67, who is the wife of Sri.Shajahan, PW74, wife of A2 himself,
and PW95 a relative and business partner of A2, were sufficient to
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 17
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
show that A2 had reached upto Turkey, and Sri.Shajahan, who was
arrested at Delhi Airport, was also with him, and later Sri.Shajahan
pleaded guilty to the charge. PW95 gave evidence to the effect
that, A2 disclosed his intention to go to Syria for joining ISIS, and
before he left, he had executed two agreements as Exts.P128 and
P129 for PW95 to conduct business and to pay Rs.5,000/- per
month to the wife of A2. He conducted business for some time,
and thereafter he stopped the business. The trial court found that
the evidence given by PW95 was trustworthy and there was
nothing to discredit him. In para 362 of the impugned judgment,
the trial court found that A2 maintained close contacts with A6 and
PW4 from February to April, 2017. He had discussions with A1, A6
and PW14 regarding their plan to perform Hijra to Syria to join
ISIS. A2 and A6 together decided to perform Hijra to Syria, to be
part of the holy war against non believers and Governments who
stood against Islamic Caliphate. On 18.04.2017, A2 and A6 left
Kozhikode and A2 was arrested by the Turkish authorities along
with Sri.Shajahan and they reached Delhi Airport by same flight on
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 18
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
01.07.2017 and Sri.Shajahan was arrested by Delhi police. A6
crossed over to Syria, joined ISIS and it is believed that he was
killed while waging war against Syria.
22. Regarding the involvement of the fifth accused in the
offences alleged, though there is nothing to show that he left
Kerala, the learned trial court found that, knowing about the arrest
of A4 in Mangalapuram on his way to Syria, A5 cancelled his ticket,
though he also wanted to perform Hijra by crossing over to Syria.
From para 406 of the impugned judgment, it could be gathered
that the learned trial judge was satisfied with the evidence to find
that A5 was one of the masterminds in indoctrinating youngsters
with ISIS ideology and he was motivating and sending youngsters
to Islamic State announced by ISIS for waging war against Asiatic
powers like Syria, which were at peace with the Government of
India. In paragraph 407 of the impugned judgment, the trial court
found that there was overwhelming evidence to prove that A5
Hamsa preached and propagated Jihadist ideology from 2008 itself
and he continued the same throughout. Further, when ISIS
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 19
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
declared caliphate in 2014, he associated himself with ISIS and
canvassed support for this organisation to fight against the Syrian
Government as well as non- believers. So, even if he had not left
Kerala, his role was manifestly clear from the available evidence.
23. So, the impugned judgment gives clear finding as to the
conspiracy of the applicants/appellants and their intention to
perform Hijra to Syria for indulging in Jihad. No patent infirmity is
there in the order of conviction which would render it prima facie
erroneous. Moreover, considering the nature and gravity of the
offences alleged, which are affecting the integrity of the nation and
security and liberty of its citizens, the discretion has to be
exercised with more care and caution, and not in a casual manner.
Prima facie nothing is there, cogent enough to raise substantial
doubts regarding the validity of the conviction.
24. Learned counsel for the applicants/appellants invited our
attention to the fact that, A2 was not convicted under Section 39 of
the UAP Act and he has to suffer substantive sentence of six years
only out of which he had already undergone five years and two
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 20
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
months. A1 and A5 who were convicted both under Sections 38
and 39 of the UAP Act have to undergo substantive sentence of
seven years, out of which they had already undergone
imprisonment of five years and two months. So, according to
them, if there is delay in hearing and disposing the appeals, the
appeals itself may become infructuous.
25. In Satender Kumar Antil vs. Central Bureau of
Investigation [(2022) 10 SCC 51], the Apex Court observed that,
the delay in taking up the main appeal coupled with the benefit
conferred under Section 436A of Cr.P.C among other factors ought
to be considered, for releasing the applicants/appellants on bail.
Moreover, where an appeal is pending for a longer time, to bring it
under Section 436A, the period of incarceration in all forms may
have to be reckoned. It is true that an appeal or revision could be
construed as a facet of trial, when it comes to the consideration of
bail on suspension of sentence.
26. The applicants/appellants were arrested on 25.10.2017
and they were under remand till the date of conviction, and they
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 21
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
were granted set off by the trial court. They are eligible to set off
the period of remand, against the period of sentence, and so, less
than one year is remaining for A2, and less than two years is
remaining for A1 and A5, to complete the period of sentence.
Applying the principle under Section 436A of Cr.P.C, normally, the
applicants/appellants might have been eligible for suspension of
sentence to get them released on bail under Section 389(1) of
Cr.P.C. But, the available facts and circumstances proved before
the trial court are sufficient to hold that, accepting the call of ISIS,
a proscribed terrorist organisation, the appellants wanted to
perform Hijra to Syria for indulging in violent jihad and some of
them, on their way to Syria, were arrested by the Turkish
authorities, and deported to India. A5 had booked tickets to go to
Syria with the same ideology, but, on knowing that A4 was arrested
at Mangalore, he cancelled his tickets. Moreover, A5 was
indoctrinating and recruiting youngsters to the proscribed terrorist
organisation, ISIS, for waging war against Syria, which was at
peace with the Government of India. So, the applicants/appellants
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 22
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
were acting against the security and integrity of the nation, and
also against the liberty and freedom of the citizens. So, their
applications are to be considered, with all its seriousness and not in
a casual manner.
27. In paragraph 5 of the judgment in Satender Kumar
Antil's case cited supra, the Apex Court made it clear that all the
discussions along with the directions in that case, were meant to
act as guidelines, as each case pertaining to a bail application is
obviously to be decided on its own merits. Here is a case where
the applicants/appellants acted against the interest of the nation as
they wanted to wage war against Syria, an Asiatic power at peace
with the Government of India. So, even if the applicants/appellants
have undergone major portion of the sentence imposed on them, it
is not safe to release them on bail, as we do not know whether
they still entertain the idea of performing Hijra to Syria for
indulging in violent jihad.
28. Learned Dy.Solicitor General of India Sri.S.Manu
contended that, the applicants/appellants have filed these
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 23
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
applications with dubious intention and the purpose of their bail
application is to finish their tasks within the country, to further the
activities of ISIS, before leaving the country, to perform Hijra to
Syria. We do not know whether the applicants/appellants are
having sleeping volcanoes of terrorism in their mind to indulge in
violent jihad.
29. The purpose of punishment is to reform and to
rehabilitate the criminal. It will have the effect of cleaning and
purging the sin, for which they have to serve the sentence.
30. Considering the gravity of the offence prima facie proved
against the applicants/appellants, though they have undergone
major portion of their sentence, we are not inclined to suspend
their sentence and to release them on bail at present. These
appeals are of the year 2022, admitted on 14.09.2022 and
06.10.2022. The appellants will be at liberty to move applications
for early hearing of the main appeals, which would then be
considered.
31. It is clarified that the above findings and observations are
Crl.M.A No.1/2022 in Crl.Appeal No.904/2022
Crl.M.A No.2/2022 in Crl.Appeal No.994/2022 & 24
Crl.M.A No.1/2022 in Crl.Appeal No.847/2022
made purely for the purpose of the above applications, and it will
not cause any prejudice to the contentions of the appellants in the
main appeals, and it will not have any bearing on the merits of the
appeals.
With these observations and directions, above Crl.M.As stand
dismissed.
Sd/-
ALEXANDER THOMAS
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
10-02-2023 /True Copy/ Assistant Registrar
