Patna High Court
Abdur Rahman @ Abdul Rahman vs The Union Of India Through The National ... on 2 May, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.914 of 2023
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
======================================================
MANZER PARWEZ @ MANZAR PERWEZ S/O ABDUL QAYUM
MOHALLA- GULISTAN, P.S-PHULWARISHARIF, DISTRICT-PATNA
... ... Appellant
Versus
THE UNION OF INDIA THROUGH THE NATIONAL INVESTIGATION
AGENCY BIHAR
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 810 of 2023
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
======================================================
ABDUR RAHMAN @ ABDUL RAHMAN SON OF MD. YAHYA
RESIDENT OF MOHALLA - KATHOTIA, POLICE STATION - BARARI,
DISTRICT - KATIHAR
... ... Appellant
Versus
THE UNION OF INDIA THROUGH THE NATIONAL INVESTIGATION
AGENCY BIHAR
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 811 of 2023
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
======================================================
MAHBOOB ALAM @ MAHBOOB NADWI SON ABDUL RASHID
RESIDENT OF VILLAGE- RAMNAGAR BANSI BARI, PS-
HASSANGANJ, DIST- KATIHAR , BIHAR
... ... Appellant
Versus
THE NATIONAL INVESTIGATION AGENCY BIHAR
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 890 of 2023
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
======================================================
SHAMIM AKHTAR S/O MD. WASIMUDDIN R/O MOHALLA-
KHASGANJ, PS. SOHSARAI, DIST. NALANDA @ BIHARSHARIF
... ... Appellant
Versus
THE UNION OF INDIA THROUGH THE NATIONAL INVESTIGATION
AGENCY INDIA
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 917 of 2023
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
======================================================
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
2/35
1. MD. KHALIQUZZAMAN @ KHALIQUZZAMAN @ KHALIKUR
AMAN S/O LATE ANWAR AHMAD R/O MOHALLA- GONPURA, PS.
PHULWARISHARIF, DIST.PATNA (BIHAR)
2. MD. AMIN @ MD. AMIN ALAM S/O MD. ZUBAIR R/O MOHALLA-
GONPURA, PS. PHULWARISHARIF, DIST. PATNA (BIHAR)
... ... Appellants
Versus
THE UNION OF INDIA THROUGH THE NATIONAL INVESTIGATION
AGENCY NEW DELHI
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 914 of 2023)
For the Appellant : Mr. Syed Masleh Uddin Ashraf, Advocate
For the Respondent : Dr. Krishna Nandan Singh (A.S.G)
Mr. Manoj Kumar Singh, Advocate
Mr. Ankit Kumar Singh, Advocate
Mr. Shivaditya Dhari Sinha, Advocate
(In CRIMINAL APPEAL (DB) No. 810 of 2023)
For the Appellant : Mr. Syed Masleh Uddin Ashraf, Advocate
For the Respondent : Dr. Krishna Nandan Singh (A.S.G)
Mr. Manoj Kumar Singh, Advocate
Mr. Ankit Kumar Singh, Advocate
Mr. Shivaditya Dhari Sinha, Advocate
(In CRIMINAL APPEAL (DB) No. 811 of 2023)
For the Appellant : Mr. Syed Masleh Uddin Ashraf, Advocate
For the Respondent : Dr. Krishna Nandan Singh (A.S.G)
Mr. Arbind Kumar, Advocate
Mr. Shivaditya Dhari Sinha, Advocate
(In CRIMINAL APPEAL (DB) No. 890 of 2023)
For the Appellant : Mr. Syed Masleh Uddin Ashraf, Advocate
For the Respondent : Dr. Krishna Nandan Singh (A.S.G)
Mr. Arbind Kumar, Advocate
Mr. Shivaditya Dhari Sinha, Advocate
(In CRIMINAL APPEAL (DB) No. 917 of 2023)
For the Appellants : Mr. Syed Masleh Uddin Ashraf, Advocate
For the Respondent : Dr. Krishna Nandan Singh (A.S.G)
Mr. Manoj Kumar Singh, Advocate
Mr. Ankit Kumar Singh, Advocate
Mr. Shivaditya Dhari Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 02-05-2024
All the five appeals, i.e., Criminal Appeal (DB)
No.914 of 2023 (Manzer Parwez @ Manzar Perwez Vs. The
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
3/35
Union of India through the National Investigation Agency Bihar),
Criminal Appeal (DB) No. 810 of 2023 (Abdur Rahman @ Abdul
Rahman Vs. The Union of India through the National Investigation
Agency Bihar), Criminal Appeal (DB) No. 811 of 2023 (Mahboob
Alam @ Mahboob Nadwi Vs. The National Investigation Agency
Bihar), Criminal Appeal (DB) No. 890 of 2023 (Shamim Akhtar
S/O Md. Wasimuddin Vs. The Union of India through the National
Investigation Agency India) and Criminal Appeal (DB) No. 917 of
2023 (Md. Khaliquzzaman @ Khaliquzzaman @ Khalikur Aman
And Md. Amin @ Md. Amin Alam Vs. The Union of India
through the National Investigation Agency New Delhi), which
have been filed under Section 21(4) of the National Investigation
Agency Act, 2008 (for short 'NIA Act') have been heard together
on the issue of grant of anticipatory bail and they are being
disposed of by this common order.
Factual Matrix
2. The brief facts leading to filing of the present appeals
are as under:-
2.1. The Bihar Police had received an information
about the plan of accused persons to cause disturbance during the
proposed visit of the Prime Minister of India. On receipt of the
said information, a raid was conducted by Phulwarisharif Police on
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
4/35
11.07.2022
at the house of Jalaluddin Khan @ Md. Jalaluddin,
who had given the upper floor of his house on rent to accused
Athar Parwez. From the floor of the house taken on rent by Athar
Parwez, documents relating to unlawful activities aiming
disrupting the sovereignty of India and to cause disaffection
against the country as also for establishing Pan-Islamic rule in
India by subverting the Constitution of India, were recovered. The
reading of the documents so recovered suggested propagation of
armed struggle and violent means to implement the
aforementioned agenda.
2.2. The said Jalaluddin Khan @ Md. Jalaluddin
and Athar Parwez were arrested. The said accused gave the names
of other 25 persons who were also involved in the unlawful
activities and, therefore, against all the accused persons, Phulwari
Sharif P.S. Case No. 827 of 2022 was registered.
2.3. It further appears from the record that the
Govt. of India, Ministry of Home Affairs, after considering the
nature and gravity of the offence, directed the National
Investigation Agency (in short the NIA) to take up the
investigation of the case vide order dated 22.07.2022. Pursuant to
the said direction, the NIA re-registered the case as R.C.
-31/2022/NIA/DLI dated 22.07.2022 under Sections 120, 120B,
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
121, 121A, 153A, 153B and 34 of the Indian Penal Code ('IPC' for
short). Thereafter, Section 13 of the Unlawful Activities
(Prevention) Act, 1967 ('UAPA' for short) was also invoked.
2.4. As the present appellants are apprehending
their arrest, they filed separate applications for grant of
anticipatory bail in Special Case No. 02 of 2023/R.C. No. 31 of
2022 (arising out of Phulwari Sharif P. S. Case No. 827 of 2022)
before learned Special Judge, N.I.A., Patna, Bihar.
2.5. By way of the impugned orders, the learned
Special Judge, N.I.A., Patna, Bihar, rejected the applications filed
by the respective appellants for grant of anticipatory bail and,
therefore, the respective appellant filed separate appeal under
Section 21(4) of the NIA Act.
3. We have heard Mr. Syed Masleh Uddin Ashraf,
learned counsel appearing on behalf of the appellants in all the
appeals and Dr. K. N. Singh, learned Additional Solicitor General
for India assisted by Mr. Manoj Kumar Singh and Mr. Arbind
Kumar, learned Advocates for the respondent Union of India in all
the appeals.
4. At the outset, learned Advocate appearing on behalf
of the appellants pointed out that the appellant of Cr. Appeal (DB)
No. 914 of 2023, namely, Manzer Parwez @ Manzar Perwez is
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
shown as accused No. 18, appellant of Cr. Appeal (DB) No. 516 of
2023, namely, Abdur Rahman @ Abdul Rahman is shown as
accused No. 24, appellant of Criminal Appeal (DB) No. 811 of
2023, namely, Mahboob Alam @ Mahboob Nadwi, is shown as
accused No.7, appellant of Criminal Appeal (DB) No. 890 of 2023,
namely, Shamim Akhtar is shown as accused No. 3 the appellants
of and Criminal Appeal (DB) No. 917 of 2023, namely, Md.
Khaliquzzaman @ Khaliquzzaman @ Khalikur Aman and Md.
Amin @ Md. Amin Alam have been shown as accused Nos. 14
and 15 respectively.
Submission on behalf of Appellants:
5. Learned Advocate for the appellants submits that,
during the course of raid carried out by the concerned police
authorities, two persons were found, i.e., accused Nos. 1 and 2
from the spot. However, on the basis of the statement of the said
accused, the present appellants have been implicated and,
therefore, in the First Information Report (FIR), the present
appellants are shown as accused. At this stage, learned counsel has
referred page 27 of the compilation, i.e., the seizure list. It is
submitted that there is no signature of the accused who were found
from the place of occurrence in the said seizure list. Learned
counsel has also referred to page 26 of the compilation, i.e., the
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
second seizure list. It is submitted that the said seizure list was
though signed by the accused Athar Parwez, the date shown in the
said seizure list is 13.07.2022. However, in fact, certain documents
were seized on 11.07.2022. Thus, it is claimed that the same was
signed only later by one of the accused under duress and nothing
was recovered from the residential house of accused Jalaluddin
Khan @ Md. Jalaluddin or the rented premises of Athar Parwez.
Thus, the aforesaid seizure list was falsely prepared and, in fact,
nothing was seized from the aforesaid premises.
5.1. At this stage, it is also contended that only a
seven-pages booklet/document, namely, "India 2047, Rule of
Islamic India, Internal Document", was recovered, which
document could be downloaded by anybody from the internet.
5.2. Learned counsel for the appellants thereafter
submitted that at the time of filing of the FIR, Popular Front of
India (PFI) was not banned in Bihar. In fact, it is a registered
organization under the Societies Registration Act, 1860, which
promote, inter alia, national integration, communal amity and
social harmony and uphold the democratic set up and secular order
and rule of law in the country. It is also submitted that present FIR
is filed in July, 2022. Thereafter, said organization was banned
only on 28.09.2022, i.e., after registration of FIR.
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
5.3. Learned Advocate for the appellants further
submits that appellant of Cr. Appeal (DB) No. 914 of 2023,
namely, Manzer Parwez @ Manzar Perwez is a government
servant and working as a Technician and is not connected with
PFI. Similarly, appellant of Cr. Appeal (DB) No. 890 of 2023,
namely, Shamim Akhtar, is President of Social Democratic Party
of India, which is duly recognized by the Election Commission
and has participated in the elections. The said appellant is also not
a member of the proscribed organization, i.e., PFI and rather he is
an active social worker. Other appellants are also not the member
of PFI despite which, they have been implicated in the FIR in
question.
5.4. At this stage, it is contended that even if the
person is a member of an organization which was not banned at
the relevant point of time, it cannot be said that such a person has
committed any offence punishable under UAPA.
5.5. Learned Advocate for the appellants thereafter
referred to penal provisions invoked against the appellants, i.e.,
Sections 120, 120B, 121, 121A, 153A, 153B and 34 of the Indian
Penal Code and contended that the aforesaid provisions are not
attracted on the facts of the present case. Learned counsel for the
appellants has also referred to the provision contained in Section
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
13 of the UAPA and thereafter submits that the said provision is
also not attracted. Thus, the respondent NIA has failed to make out
any prima facie case of committing an offence by the appellants
under UAPA. Hence, the bar contained under Section 43D(4) of
the UAPA would not be attracted.
5.6. Learned counsel for the appellants, therefore,
urged that when the bar under the aforesaid provision is not
attracted on the facts of the present case, the learned Special
Judge, N.I.A., Patna, Bihar, ought to have entertained the
anticipatory bail applications filed by the appellants herein.
Learned counsel urged that the impugned orders passed by the
earned Special Judge, N.I.A., Patna, Bihar, be quashed and set
aside and the appellants be released on anticipatory bail in the
event of their arrest.
5.7. Learned counsel for the appellants has placed
reliance upon the decision rendered by the Hon'ble Supreme Court
in the case of Vernon vs. The State of Maharashtra & Anr. (AIR
2023 SC 3926). Learned counsel, more particularly, referred
paragraph 36 and 43 of the said decision. He also placed reliance
upon the order dated 05.04.2024 passed by the Hon'ble Supreme
Court in the case of Shoma Kanti Sen vs. The State of
Maharashtra & Anr. in Criminal Appeal No. 2595 of 2023.
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
Submission of Learned A.S.G.:
6. On the other hand, learned Additional Solicitor
General for India appearing for the respondent NIA has
vehemently opposed all these appeals. Learned ASG has referred
the averments made in the counter affidavit filed on behalf of the
NIA in each of the appeals and thereafter submitted that, after the
registration of the FIR and the case under the NIA Act, the
respondent NIA has carried out the investigation and, during the
course of the investigation, ample evidence has been collected
against the accused, who are arrested and also against the rest of
the accused who are named in the FIR. It is pointed out from the
record that the investigation agency has filed charge-sheet against
the arrested-accused in which there is a reference of the material
collected during the course of investigation.
6.1. At this stage, learned ASG has pointed out that
two other co-accused, namely, Jalaluddin Khan @ Md. Jalaluddin
and Athar Parwez, who were arrested from the place of
occurrence, the respondent has filed the charge-sheet. The said co-
accused filed bail application with a prayer that they may be
released on bail. Further, their prayer for bail was not entertained
by the court of learned Special Judge, N.I.A., Patna, Bihar, and,
therefore, the said co-accused preferred Cr. Appeal (DB) Nos. 514
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
of 2023 and 516 of 2023 respectively. It is submitted that a
Coordinate Bench of this Court, after considering the materials
collected by the investigation agency, rejected the appeals filed by
the aforesaid co-accused vide order dated 28.11.2023. It is
submitted that while dismissing the said appeals, the coordinate
Bench has specifically observed that prima facie case is made out
against the aforesaid two co-accused. Learned ASG has produced
the copy of the order dated 28.11.2023 passed by the Coordinate
Bench in the case of the two co-accused.
6.2. At this stage, learned ASG has referred the
provisions contained in Section 43D(4) of UAPA. It is submitted
that the anticipatory bail applications filed by the appellants are
not maintainable in view of the aforesaid provision. In support of
the said contention, learned ASG has placed reliance upon the
decision rendered by the Bombay High Court in the case of
Anand Teltumbde vs. State of Maharashtra and Others, reported
in 2020 SCC OnLine Bom 1692. Learned ASG has, accordingly,
referred paragraph 45 to 50 of the said decision. At this stage, it is
submitted that the order passed by the Bombay High Court
rejecting the anticipatory bail application of the concerned accused
was challenged by the concerned accused before the Hon'ble
Supreme Court by filing S.L.P. (Crl.) No. 1916 of 2020. It is
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
submitted that the Hon'ble Supreme Court has also rejected the
said SLP filed by the concerned accused after referring to the
provisions contained in Section 43D(4) of the UAPA.
6.3. Learned ASG has also placed reliance upon the
decision rendered by the High Court of Kerala in the case of
Ahammedkutty Pothiyil Thottiparambil vs. Union of India
reported in 2023 SCC OnLine Ker 5501. Learned ASG has more
particularly referred paragraph 16, 18 and 28 of the said decision.
6.4. Learned ASG has thereafter placed reliance
upon the latest decision rendered by the Hon'ble Supreme Court in
the case of Gurwinder Singh vs. State of Punjab & Anr.
Reported in 2024(1) PLJR(SC) 417. He has submitted that in the
said case after considering the provisions contained in Section
43D(4) of the UAPA has rejected the bail application of the
concerned accused.
6.5. Learned ASG has thereafter referred the
impugned orders passed by the learned Special Judge, N.I.A.,
Patna, Bihar, and thereafter submitted that no error is committed
by the learned Special Judge, N.I.A., Patna, Bihar, while rejecting
the anticipatory bail applications filed by the concerned appellants.
He, therefore, urged that all the appeals be dismissed.
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
6.6. Learned A.S.G., at this stage, submitted that in
the facts and circumstances of the present case custodial
interrogation of the appellants-accused is required and when the
coordinate Bench has not entertained the bail applications filed by
the other two co-accused, the present appeals, which have been
filed for grant of anticipatory bail, cannot be entertained.
Discussion and Finding:
7. Having heard the learned counsel appearing on
behalf of the parties and having gone through the materials placed
on record, it would emerge that initially FIR of Phulwari Sharif
P.S. Case No. 827 of 2022 was registered for the offences
punishable under Sections 120, 120B, 121, 121A, 153A, 153B and
34 of the Indian Penal Code. Thereafter, the Govt. of India,
Ministry of Home Affairs, after considering the nature and gravity
of the offence, directed the National Investigation Agency to take
up the investigation of the case vide order dated 22.07.2022 and,
therefore, R.C. Case was registered. It is further revealed that
Section 13 of the UAPA was also invoked. It further transpires that
two accused were arrested from the place of occurrence, i.e.,
Jalaluddin Khan @ Md. Jalaluddin and Athar Parwez, who had
given the name of the present appellants at the time of raid. It is
pertinent to note that the investigating agency has carried out the
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
investigation and, during he course of investigation, ample
evidence is collected against all the accused. The Investigation
Agency thereafter filed the charge-sheet against two accused
persons, who were arrested from the place of occurrence. It is
pertinent to note that said to co-accused Jalaluddin Khan @ Md.
Jalaluddin and Athar Parwez had filed bail application before the
learned Special Judge, N.I.A., Patna, Bihar, which came to be
rejected and, therefore, they filed Cr. Appeal (DB) Nos. 514 of
2023 and 516 of 2023. It is not in dispute that the Coordinate
Bench of this Court by order dated 28.11.2023, after considering
the similar type of contentions raised by the present appellants and
after verifying the investigation papers and after considering the
provisions contained in Section 43D(5) and (6) of the UAPA
specifically observed that the prima facie case is made out against
the said accused. The Coordinate Bench has, therefore, rejected the
appeals filed by the said two co-accused.
7.1. In the present case, respondent NIA has filed
counter affidavit in all the appeals and that copy of the charge-
sheet, which is filed against the other arrested accused is also
placed on record. From the materials placed on record, we have
found that the concerned accused Jalaluddin Khan @ Md.
Jalaluddin and Athar Parwez had refused to sign the seizure list. It
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
is pertinent to note that the Coordinate Bench, while rejecting the
appeals filed by the aforesaid two co-accused, has considered
similar contentions which are raised by the present appellants and
thereafter observed in paragraph 17 to 23 as under: -
"17. We have examined the police papers,
the charge-sheet and the statement of the protected
witnesses, produced in sealed cover.
18. It was disclosed during investigation
that there was a definite plan to disturb the visit of
the Prime Minister to Bihar. During the raid, five sets
of document, India 2047 towards Rule of Islamic
India, Internal Document; not for circulation and
pamphlet of Popular Front of India, 20th of
February, 2021 in different languages were
recovered. The documents propagated and adjured
participation in the activities of the P.F.I.
19. Appellant/Jalaluddin Khan @ Md.
Jalaluddin admitted of having rented the first floor of
his house to appellant/Athar Parwez for imparting
training to the cadre of P.F.I. on 6th and 7th of July,
2022 (in fact, the rental document is in the name of
the wife of appellant/Jalaluddin Khan @ Md.
Jalaluddin and appellant/Athar Parwez). In the
afore-noted training on 6 th and 7th of July, 2022,
many persons from outside the State of Bihar had
received training. This was confirmed by
appellant/Athar Parwez, who admitted of his being
actively associated with Student Islamic Movement of
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
India (SIMI) earlier, which today is a banned
terrorist organization. He had been providing legal
help to SIMI members lodged in jail. On the
directions of P.F.I., investigations revealed, he was
preparing a secret group of ex-SIMI members with
the aim of taking revenge against the atrocities
committed against Muslims in India and to attack the
persons who had, in the past, made derogatory
remarks against Islam. It was found during the
investigation that the assemblage was in support of
the revenge action taken at Amrawati (Maharastra)
and Udaipur (Rajasthan) in retaliation to derogatory
comments against Islam.
20. From the documents recovered from
the premises of appellants/Jalaluddin Khan @ Md.
Jalaluddin and Athar Parwez, it was found that it
contained an estimation that even if 10 per cent of
the total Muslim population would rally behind
P.F.I., the majority community would be subjugated.
Four stages were spelt out for carrying out the
objective, namely, to establish the rule of Islam in
India. Those stages are: uniting Muslims and giving
training of weapons; using violence selectively to
demonstrate strength and terrorize opponents;
alliance with S.Cs. and S.Ts. to divide the Hindus and
to somehow or the other infiltrate in police, army
and judiciary. With these objectives in mind, the final
stage was conceived of when the P.F.I., would
declare a new constitution based on Islamic
principles with the help of external forces. While
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
doing this, it was also urged to use the reference of
Babri Masjid for radicalization and mass
mobilization. It also suggested collection of
information against extremist Hindu organizations so
as to take selective revenge.
21. During the course of investigation, the
mobile phones, SIM cards and other digital devices,
which were seized, were sent to
Thiruvananthapuram, Kerela, for data extraction
and analysis. The extracted data was found to be
replete with communally objectionable videos which
were circulated to spread religious animosity and
hatred. Those extracted data also confirmed the
participation of the appellants in various protests
organized by P.F.I. and other organizations under its
umbrella.
22. The statements of the protected
witnesses, namely, X, Y and Z, clearly reveal that all
of them were allured to join P.F.I. by promising to
provide scholarships and later they were attempted
to be drawn into the nefarious vortex of hate. The
prime purpose of their enlistment was to give further
fillip to Muslim empowerment and to execute future
plans of P.F.I.
23. We are conscious enough not to discuss
and evaluate the materials collected during the
course of investigation in any greater detail, except
for the purposes of testing the correctness of the
orders passed by the Special Court, N.I.A., rejecting
the prayer for bail of the appellants."
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
7.2. Learned counsel for the appellants submitted
that the concerned co-accused are in process of filing SLP before
the Hon'ble Supreme Court against the said order. However, he
has fairly submitted that, till today, no order has been passed by
the Hon'ble Supreme Court in the case of the aforesaid two co-
accused.
7.3. We have examined the materials placed before
us, it transpires therefrom that not only a conspiracy to disrupt the
visit of Hon'ble Prime Minister to Bihar was hatched, it would
have a disastrous cascading effect on the public order in the
country, had the police not been able to thwart it in time. The
document recovered during the raid in different language speaks
volumes about the nefarious design of the accused, who subscribed
the ideology of fundamentalist organizations propagating the
agenda India 2047 towards Rule of Islamic India, Internal
Document.
7.4. Co-accused Jalaluddin Khan @ Md. Jalaluddin
has admitted renting the first floor of his house to Athar Parwez for
imparting training to the cadre of PFI on 6th and 7th of July, 2022.
The said rental document is in the name of the wife of Jalaluddin
Khan @ Md. Jalaluddin and Athar Parwez). In the said training on
6th and 7th of July, 2022, many persons from different parts of the
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
country had received training, which fact too was confirmed by
Athar Parwez. Athar Perwez has admitted to be actively associated
with Student Islamic Movement of India (SIMI) earlier, which is
now a banned terrorist organization, by providing legal help to
SIMI members lodged in jail. During the investigation, it was
revealed that he was preparing a secret group of ex-SIMI members
with the aim of taking revenge against the alleged atrocities
committed against Muslims in India and to attack the persons who
had made derogatory remarks against Islam earlier at the instance
of PFI. It was found during the investigation that the said training
was organized in support of the revenge action taken at Amrawati
(Maharastra) and Udaipur (Rajasthan) in retaliation to derogatory
comments against Islam.
7.5. It transpires from the documents recovered
from the premises of Jalaluddin Khan @ Md. Jalaluddin and Athar
Parwez that even if 10 per cent of the total Muslim population
would rally behind PFI, the majority community would be
subjugated. Four stages were evolved for to establish the rule of
Islam in India, e.g., uniting Muslims and giving training of
weapons; using violence selectively to demonstrate strength and
terrorize opponents; alliance with S.Cs. and S.Ts. to divide the
Hindus and to somehow or the other infiltrate in police, army and
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
judiciary. With these objectives in mind, the final stage was
conceived of when the PFI, would declare a new constitution
based on Islamic principles with the help of external forces. While
doing this, it was also urged to use the reference of Babri Masjid
for radicalization and mass mobilization. It also suggested
collection of information against extremist Hindu organizations so
as to take selective revenge.
7.6. During the course of investigation, the mobile
phones, SIM cards and other digital devices, which were seized,
were sent to Thiruvananthapuram, Kerela, for data extraction and
analysis. The extracted data was found to be replete with
communally objectionable videos which were circulated to spread
religious animosity and hatred. Those extracted data also
confirmed the participation of the appellants in various protests
organized by PFI and other organizations under its umbrella.
7.7. Thus, from the investigation papers and the
copy of the charge-sheet placed before us, we are of the view that
prima facie case is made out against the present appellants also. It
is true that initially on the basis of the statement of the aforesaid
two co-accused, present appellants have been implicated in the
FIR. However, the materials on record prima facie indicate the
complicity of the accused in the unlawful activities alleged by the
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
investigating agency. It is further revealed that the present
appellants are evading their arrest. From the investigation papers it
would further reveal that prima facie it can be said that the present
appellants have committed the alleged offences punishable under
the UAPA and, therefore, the appeals filed by the appellants for
grant of anticipatory bail would not be maintainable. At this stage,
it is also relevant to note that the contentions which are taken by
the appellants in the present appeals were also taken by two other
co-accused, namely, Jalaluddin Khan @ Md. Jalaluddin and Athar
Parwez in Cr. Appeal (D.B.) Nos. 514 of 2023 and 516 of 2023,
however, the coordinate Bench of this Court has not entertained
similar contentions and thereby rejected the bail applications filed
by the said two co-accused. It is not in dispute that till today the
order passed by the coordinate Bench of this Court in the case case
of two co-accused is not set aside by the higher forum. Hence, the
similar contentions taken by the appellants in the present appeals
are misconceived.
7.8. At this stage, we would like to refer to the
decision rendered by the Bombay High Court in the case of
Anand Teltumbde (supra). The Bombay High Court has observed
in paragraph 45, 49 and 50 in the said case as under: -
45. Section 43D(4) of UAPA Act
categorically mentions that Section 438 of
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
Code shall not apply in relation to any case
involving arrest of any person accused of
having committed an offence punishable under
the Act. The Legislature has omitted the
applicability of Section 438 of Cr. P.C. with
some purpose. The purpose has to be read with
the object of the Act and the fetters imposed in
Section 43D(5) for granting bail to the
accused, who is prosecuted under the
provisions of UAPA Act. The UAPA Act was
enacted to provide for more effective
prevention of certain unlawful activities of
individuals and associations and for dealing
with terrorist activities and for matters
connected therewith. The preamble of UAPA
Act reads as follows:
"An Act to provide for the more effective
prevention of certain unlawful activities
of individuals and associations and for
dealing with terrorist activities and for
matters connected therewith;
[WHEREAS the Security Council of the
United Nations in its 4385th meeting
adopted Resolution 1373 (2001) on
28th September 2001, under Chapter
VII of the Charter of the United Nations
requiring all the States to take measures
to combat international terrorism;]
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
AND WHEREAS Resolutions 1267
(1999), 1333 (2000), 1390 (2002), 1455
(2003), 1526 (2004), 1566 (2004), 1617
(2005), 1735 (2006) and 1822 (2008) of
the Security Council of the United
Nations require the State to take action
against certain terrorists and terrorist
organizations, to freeze the assets and
other economic resources, to prevent the
entry into or the transit through their
territory, and prevent the direct or
indirect supply, sale or transfer of arms
and ammunitions to the individuals or
entities listed in the Schedule;
AND WHEREAS the Central
Government, in exercise of the powers
conferred by section 2 of the United
Nations (Security Council) Act, 1947
(43 of 1947), has made the Prevention
and Suppression of Terrorism
(Implementation of Security Council
Resolutions) Order, 2007;
AND WHEREAS it is considered
necessary to give effect to the said
Resolutions and the Order and to make
special provisions for the prevention of,
and for coping with, terrorist activities
and for matters connected therewith or
incidental thereto."
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
49. Thus, it is crystal clear that there
is an object behind introducing Section 43D(4)
of UAPA Act creating bar for applicability of
Section 438 of Cr. P.C. and hence the
application seeking anticipatory bail in
exercise of powers u/s 438 of Cr. P.C. is not
maintainable in law.
50. Learned counsel for applicant
had vehemently contended that there is no
evidence to apply the provisions of UAPA Act
and hence this application has to be
entertained. The submission deserves to be
rejected in view of aforesaid observations. The
learned counsel had urged before Sessions
Court and this Court that provisions of UAPA
Act are not applicable. The applicant is
prosecuted for offences under IPC and UAPA
Act. Even taking into consideration the
submission advanced by learned counsel for
applicant, on perusal of all the material on
record, it can be seen that there is prima facie
evidence showing complicity of applicant in
the crime. Hence, in light of the material, said
submission also deserves to be rejected. The
Hon'ble Supreme Court in the case of National
Investigation Agency v. Zahoor Ahmad Shah
Watali (supra) in paragraph 27 has observed
that the totality of the material gathered by the
investigating agency and presented along with
the report and including the case diary, is
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
required to be reckoned and not by analysing
individual pieces of evidence or circumstance.
In any case, the question of discarding the
document at this stage, on the ground of being
inadmissible in evidence, is not permissible.
For, the issue of admissibility of the
document/evidence would be a matter of trial.
The Court must look at the contents of the
document and take such document into
account as it is. In paragraph 52 of the said
decision it was observed that the issue of
admissibility and credibility of the material
and evidence presented by the Investigating
Officer would be a matter of trial."
7.9. At this stage, it is relevant to note that the
aforesaid order of the Bombay High Court rejecting the
anticipatory bail application of the concerned accused was
challenged by him before the Hon'ble Supreme Court. The
Hon'ble Supreme Court dismissed the SLP vide order dated
16.03.2020. Copies of both these orders have been placed on
record by the learned counsel.
7.10. In the case of Ahammedkutty Pothiyil
Thottiparambil (supra), the Kerala High Court has observed in
paragraph 28 as under: -
"28. Be that as it may, as noted, final
report has not been filed in the case against all
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
the accused. Even the accused against whom
final report has already been filed, further
investigation is going on. The appellant is a
person against whom final report has not been
filed, inasmuch as investigation into his
involvement in the crime is yet to be over. One
of the reasons stated for not submitting final
report against the appellant is that he is yet to
be interrogated as he has been evading arrest
all throughout, and having regard to the
materials so far collected against the
appellant, his custodial interrogation is
necessary to obtain a clear picture of his
complicity in the crime. Having regard to the
averments in the final report submitted in the
crime against some of the accused, where
there is reference about the alleged
involvement of the appellant also, we are of
the view that the investigating agency cannot
be found fault with in taking the stand that
custodial interrogation of the appellant is
necessary in the case. There is no bar against
conducting further investigation under Section
173(8) of the Code after final report is
submitted under Section 173(2) of the Code.
Further investigation is merely a continuation
of the earlier investigation. This position has
been reiterated by the Apex Court in the recent
judgment in State v. Hemendhra Reddy, 2023
SCC OnLine SC 515 also. Needless to say, the
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
argument advanced by the learned counsel for
the appellant that inasmuch as final report has
already been submitted against some of the
accused in the crime, the investigating agency
cannot bring any additional materials against
the appellant and that the appellant is,
therefore, entitled to be treated at par with the
remaining accused in the case who have
already been granted bail, is therefore without
substance. In other words, on merits also,
according to us, this is not an exceptional case
in which the court could exercise the power to
grant pre-arrest bail if at all such power could
be exercised in a case of this nature involving
an offence punishable under the UAP Act."
7.11. In the case of Gurwinder Singh (supra), the
Hon'ble Supreme Court was considering the bail application filed
by the concerned accused. The Hon'ble Supreme Court has
observed in paragraphs 19 and 20 as under: -
"19. The courts are, therefore, burdened
with a sensitive task on hand. In dealing with bail
applications under UAP Act, the courts are merely
examining if there is justification to reject bail. The
'justifications' must be searched from the case diary
and the final report submitted before the Special
Court. The legislature has prescribed a low, 'prima
facie' standard, as a measure of the degree of
satisfaction, to be recorded by Court when
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
scrutinising the justifications [materials on record].
This standard can be contrasted with the standard of
'strong suspicion', which is used by Courts while
hearing applications for 'discharge'. In fact, the
Supreme Court in Zahoor Ali Watali2 has noticed
this difference, where it said:
"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."
20. In this background, the test for rejection
of bail is quite plain. Bail must be rejected as a
'rule', if after hearing the public prosecutor
and after perusing the final report or Case
Diary, the Court arrives at a conclusion that
there are reasonable grounds for believing that
the accusations are prima facie true. It is only
if the test for rejection of bail is not satisfied -
that the Courts would proceed to decide the
bail application in accordance with the 'tripod
test' (flight risk, influencing witnesses,
tampering with evidence). This position is
made clear by Sub-section (6) of Section 43D,
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
which lays down that the restrictions, on
granting of bail specified in Sub-section (5),
are in addition to the restrictions under
the Code of Criminal Procedure or any other
law for the time being in force on grant of
bail."
7.12. In the case of Vernon (supra), the Hon'ble
Supreme Court has observed in paragraphs 26, 29, 36 and 43 as
under: -
"26. In none of the materials which
have been referred to by the prosecution, the
acts specified to in sub-clause (a) of Section
15(1) of the 1967 Act can be attributed to the
appellants. Nor there is any allegation against
them which would attract sub-clause (c) of
Section 15(1) of the said statute. As regards
the acts specified in Section 15(1) (b) thereof,
some of the literature alleged to have been
recovered from the appellants, by themselves
give hint of propagation of such activities. But
there is nothing against the appellants to
prima facie establish that they had indulged in
the activities which would constitute
overawing any public functionary by means of
criminal force or the show of criminal force or
attempts by the appellants to do so. Neither
there is allegation against them of causing
death of any public functionary or attempt to
cause death of such functionary. Mere holding
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
of certain literatures through which violent
acts may be propagated would not ipso facto
attract the provisions of Section 15(1)(b) of the
said Act. Thus, prima facie, in our opinion, we
cannot reasonably come to a finding that any
case against the appellants under Section
15(1) (b) of 1967 Act can be held to be true.
29. We have already observed that it
is not possible for us to form an opinion that
there are reasonable grounds for believing that
the accusation against the appellant of
committing or conspiring to commit terrorist
act is prima facie true. The witness statements
do not refer to any terrorist act alleged to have
been committed by the appellants. The copies
of the letters in which the appellants or any
one of them have been referred, record only
third-party response or reaction of the
appellants' activities contained in
communications among different individuals.
These have not been recovered from the
appellants. Hence, these communications or
content thereof have weak probative value or
quality. That being the position, neither the
provisions of Section 18 nor 18B can be
invoked against the appellants, prima facie, at
this stage. The association of the appellants
with the activities of the designated terrorist
organisation is sought to be established
through third party communications.
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
Moreover, actual involvement of the appellants
in any terrorist act has not surfaced from any
of these communications. Nor there is any
credible case of conspiracy to commit offences
enumerated under chapters IV and VI of the
1967 Act. Mere participation in seminars by
itself cannot constitute an offence under the
bail-restricting Sections of the 1967 Act, with
which they have been charged.
36. In the case of Zahoor Ahmad
Shah Watali (supra), it has been held that the
expression "prima facie true" would mean
that the materials/evidence collated by the
investigating agency in reference to the
accusation against the accused concerned in
the charge-sheet must prevail, unless overcome
or disproved by other evidence, and on the
face of it, materials must show complicity of
such accused in the commission of the stated
offences. What this ratio contemplates is that
on the face of it, the accusation against the
accused ought to prevail. In our opinion,
however, it would not satisfy the prima facie
"test" unless there is at least surface-analysis
of probative value of the evidence, at the stage
of examining the question of granting bail and
the quality or probative value satisfies the
Court of its worth. In the case of the
appellants, contents of the letters through
which the appellants are sought to be
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
implicated are in the nature of hearsay
evidence, recovered from co-accused.
Moreover, no covert or overt terrorist act has
been attributed to the appellants in these
letters, or any other material forming part of
records of these two appeals. Reference to the
activities of the accused are in the nature of
ideological propagation and allegations of
recruitment. No evidence of any of the persons
who are alleged to have been recruited or have
joined this "struggle" inspired by the
appellants has been brought before us. Thus,
we are unable to accept NIA's contention that
the appellants have committed the offence
relating to support given to a terrorist
organisation.
43. In the case of Zahoor Ahmad
Shah Watali (supra) reference was made to the
judgment of Jayendra Saraswathi Swamigal
-vs- State of Tamil Nadu [(2005) 2 SCC 13) in
which, citing two earlier decisions of this court
in the cases of State -vs- Jagjit Singh (AIR
1962 SC 253) and Gurcharan Singh -vs- State
of (UT of Delhi) [(1978) 1 SCC 118), the
factors for granting bail under normal
circumstances were discussed. It was held that
the nature and seriousness of the offences, the
character of the evidence, circumstances
which are peculiar to the accused, a
reasonable possibility of the presence of the
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
accused not being secured at the trial;
reasonable apprehension of witnesses being
tempered with; the larger interest of the public
or the State would be relevant factors for
granting or rejecting bail. Juxtaposing the
appellants' case founded on Articles 14 and 21
of the Constitution of India with the aforesaid
allegations and considering the fact that
almost five years have lapsed since they were
taken into custody, we are satisfied that the
appellants have made out a case for granting
bail. Allegations against them no doubt are
serious, but for that reason alone bail cannot
be denied to them. While dealing with the
offences under Chapters IV and VI of the 1967
Act, we have referred to the materials
available against them at this stage. These
materials cannot justify continued detention of
the appellants, pending final outcome of the
case under the others provisions of the 1860
Code and the 1967 Act."
7.13. At this stage, it is relevant to note that after
considering the various decisions rendered by the Hon'ble
Supreme Court in the aforesaid case of Vernon (supra), the
Hon'ble Supreme Court has considered the provisions contained in
Articles 14 and 21 of the Constitution of India and keeping in view
the fact that the concerned accused was in custody for more than
five years, released the said accused on bail. However, in the
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
present case, the appellants are praying for grant of anticipatory
bail. In view of the materials/evidence collected by the
investigating agency in the present case prima facie case has been
made out against the appellants and, therefore, the aforesaid
decisions would not render any assistance to the appellants herein.
7.14. In the case of Shoma Kanti Sen (supra), the
Hon'ble Supreme Court has considered various earlier decisions
and thereafter released the concerned accused on bail mainly on
the ground that she is a lady of advance age suffering from various
ailments. There was delay in framing the charge after considering
the period of detention undergone by her as well as the nature of
allegation and the material available before the Court, the Hon'ble
Supreme Court released the said accused on bail. We cannot
dispute the proposition of law laid down by the Hon'ble Supreme
Court in the said case. However, as discussed hereinabove, in the
present case, there is ample material collected by the investigating
agency during the course of investigation. Therefore, prima facie
case is made out against the appellants. Further, the present
appeals are for grant of anticipatory bail and, therefore, the
decisions upon which the appellants have placed reliance would
not render any assistance to them.
Patna High Court CR. APP (DB) No.914 of 2023 dt.02-05-2024
7.15. Thus, in view of the aforesaid facts and
circumstances of the present case, the custodial interrogation of the
appellants is required. Further as discussed hereinabove prima
facie case has been made out against the appellants and, therefore,
bar contained in Section 43D(4) of the UAPA would be attracted.
7.16. We have also gone through the reasoning
recorded by the learned Special Judge, N.I.A., Patna, Bihar, while
rejecting the applications filed by the appellants and we are of the
view that learned Special Judge, N.I.A., Patna, Bihar, has not
committed any error while rejecting their applications.
8. In view of the aforesaid facts and circumstances of
the present case, we are not inclined to entertain the present
appeals.
9. Accordingly, all the appeals stand dismissed.
(Vipul M. Pancholi, J)
(Ramesh Chand Malviya, J)
Pawan/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 07.04.2024.
Transmission Date 07.04.2024.
