TaxTMI 
TaxTMI 
2024 (12) TMI 1682
X X X X Extracts X X X X
X X X X Extracts X X X X
....atna under Sections 120, 120-B, 121, 121A, 153A, 153B, & 34 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC"). 3. The Appellant along with a co-accused Jalaluddin Khan alias Md. Jalaluddin was arrested on 12.07.2022. Allegations against the Appellant are that he is an active member of the Popular Front of India (hereinafter referred to as the "PFI"), and he along with his associates were planning to cause disturbance during the proposed visit of Prime Minister of India to Patna, this led to the raid being conducted on 11.07.2022 at first floor Ahmad Palace, Phulwari Sharif, Patna which was taken on rent by the Appellant from co-accused Md. Jalaluddin. 4. During the raid certain recoveries were carried out, prominent amongst them was a document titled "India 2047 towards rule of Islam in India, internal Document not for circulation". Assertions have been made in the complaint on the basis of the documents seized that the Appellant along with the other members of the PFI aimed at disrupting the sovereignty of India and cause disaffection against the country. 5. Keeping in view the seriousness of the allegations and the offences involved, Government of Ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....argesheet as has been filed by the prosecution would not indicate any active role played by the Appellant except that he had participated in some demonstrations and protests against the policies of the State or rather in the backdrop of remarks made by one Nupur Sharma against Prophet Mohammad. 9. Another allegation is with regard to having organized a meeting on 6th and 7th of July 2022 in the rented first floor premises of Ahmad Palace. The statements of the witnesses also according to the allegations do not indicate that the Appellant had actively participated in any discussions or had instigated any of the persons present there to commit any of the offence which would fall within the purview of the offences mentioned in the chargesheet. 10. The learned Senior Counsel has further asserted that the co-accused of the Appellant (Jalaluddin Khan) whose application was also considered for grant of bail by the High Court along with that of the Appellant, had been granted bail by this Court in Criminal Appeal No. 3173 of 2024 [2024 SCC OnLine SC 1945/ Criminal Appeal No. 3173 of 2024 decided on 13.08.2024]. His role is similar to that of the Appellant except that he was said to b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts who were from different States joined and directions were given in the said meeting to kill and attack those who make derogatory statements about Prophet Mohammad and Islam. 14. It is further submitted that the Appellant had been working to create a secret group of ex-Student Islamic Movement of India (hereinafter referred to as the "SIMI") members, which is the banned organisation, in order to take revenge against the persons who made or make derogatory statements against Islam. The Appellant and other co-accused had participated in protest and videos were recovered where communal sloganeering was recorded and circulated which not only was intended to create disturbance but religious disharmony and discord within the society. The CDR records established that the Appellant was in touch with other co-accused and had conspired to expand the unlawful ideology of the PFI. About the participation of the Appellant and the other co- accused named in the First Information Report, she states that CCTV footage of 6th and 7th July installed at the Ahmad Palace depicts the same which establishes the involvement of the Appellant in conspiracy for carrying out unlawful activities with an ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e kept in mind while considering the prayer for grant of bail under Section 43-D (5) of UAPA, 1967 have to be looked into. 18. This Court had an occasion to deal with the case of an accused charged under Chapters IV and VI of the UAPA, 1967, who sought bail during the pendency of the trial in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]. In that case, this Court had gone to the extent of stating that the statutory bar on grant of bail could not be an impediment if the court on appreciation of totality of evidence is satisfied that the accusations are prima facie not true. The court is required to consider and examine not only the FIR but the case diary and chargesheet and to examine them on broad probabilities regarding involvement of the accused in the crime to determine whether the accusations are prima facie true as compared to holding the accused not guilty, which would entitle the provisions of Section 43-D(5) of UAPA, 1967, being not an impediment in grant of bail. The Court further concluded that if on perusal of the case diary and chargesheet, an opinion is formed that there are no reasonable grounds for believing that the acc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ore, the period of incarceration of an accused could also be a relevant factor to be considered by the constitutional courts not to be merely governed by the statutory provisions. 21. Reference can also be made to the judgments of this Court in Thwaha Fasal v. Union of India [(2022) 14 SCC 766] as also Javed Gulam Nabi Shaikh v. State of Maharashtra and Anr.[ 2024 SCC OnLine SC 1693] where again, the Court was dealing with the provisions of UAPA, 1967 and had reiterated the abovesaid principles. Giving precedence to the protection of Fundamental Rights and emphasising upon their primacy over the statutory provisions in case of delayed trial. In the above judgments, this Court had even gone to the extent of asserting that the seriousness of the crime for which the accused is facing the trial would not be material as an accused is presumed to be innocent until proven guilty. 22. With these basic principles in mind, we now proceed to consider the position with regard to the present Appeal. The allegations against the Appellant as has been stated above primarily are that he is an active member of the PFI, which according to the prosecution is an organisation committed to bringing....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... owner of the premises whereas the Appellant is a tenant thereof. Participation of the Appellant, as well as co-accused Md. Jalaluddin along with the other accused in the meeting of 6th and 7th July 2022 had not been disputed. The evidence against the Appellant as also the co-accused Md. Jalaluddin is almost the same. 25. The most prominent evidence is the testimony of the protected witness 'Z' who was alleged to be inducted into the PFI for providing physical training to its members. In his statement, there is no mention of the Appellant taking part in or leading any of those meetings/trainings where physical training was imparted teaching attack and defensive techniques using sticks, knives or other weapons. As regards the meeting held on 29th May 2022 at Ahmad Palace what has been stated by him is merely that the Appellant along with 40-45 persons participated in the meeting which was presided over by one Riyaz Firnagipet. In this meeting, issues like expansion of organisation, strengthening of Muslims on political, educational and administrative fronts were discussed. Nothing incriminating is alleged to have been mentioned which would attract charges under the UAPA, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aragraph of the charge sheet. Several things which protected witness Z did not state have been incorporated in paragraph 17.16. Unfortunately, paragraph 17.16 attributes certain statements to protected witness Z, which he did not make. NIA owes an explanation for that. The investigating machinery has to be fair. But, in this case, paragraph 17.16 indicates to the contrary." 27. The Court had further gone to the extent of saying and rightly so that in the chargesheet there is no allegation that the Appellant was a member of a terrorist gang or organisation. It is worth mentioning here that the PFI of which the Appellant was a member has not been declared a terrorist organisation within the meaning of Section 2(m) of the UAPA, 1967. It was also found that the PFI is not mentioned as a terrorist organisation in the first schedule of UAPA, 1967. The chargesheet and the statement of witness 'Z' when seen as it is, it would not be possible to record prima facie finding that commission of offence under the UAPA, 1967 would be attracted as there are no reasonable grounds for believing that the accusations are prima facie correct. 28. Now, moving on to the statement of the pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was in exclusive possession thereof. This also raises some doubt with regard to the recovery of the material. 32. The Appellant was arrested on 12.07.2022. He has undergone custody for more than two years and four months. Chargesheet was filed on 07.01.2023 but till date charges have not been framed which is an admitted position. There are 40 accused and 354 witnesses cited by the prosecution to be examined. There can be no doubt that the trial is not likely to complete soon, and as has been laid down by various judgments of this Court as has been referred to above, the Appellant cannot be allowed to languish in jail indefinitely and that too without a trial. If such an approach is allowed Article 21 of the Constitution of India would stand violated. The ratio as laid down by this Court in Union of India v. K.A. Najeeb (supra) as also the other judgments in Javed Ghulam Nabi Shaikh v. State of Maharashtra and Anr. (supra) and Thwaha Fasal v. Union of India (supra) would be applicable to this case and would squarely apply entitling the Appellant for grant of bail. 33. The co-accused of the Appellant, Md. Jalaluddin has on similar grounds been granted the same benefit. In t....