Case Title: Asif Musthaheen v State
Case No: Criminal Appeal No.542 of 2023
Decided on: 12th December, 2023
CORAM: THE HON’BLE MR. JUSTICE S.S. SUNDAR and THE HON’BLE MR. JUSTICE SUNDER MOHAN
Facts of the Case
Asif Musthaheen is contesting a bail denial in the appeal that is currently pending before the court. Asif is charged with adhering to the ideology of Al-Qaeda, a terrorist organization, and being an ardent follower of Osama bin Laden and Islamic Rule in India. Additionally, Asif allegedly had intentions to attack members of Hindu organizations with a co-accused who was linked with ISIS, according to the prosecution. Asif, who has been detained since July 2022, contends that there is no evidence to support an extended pre-trial detention period, pointing only to a cell phone as proof. Furthermore, Asif claims that there was a delay in recommending prosecution, which violates the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008.
Important questions concerning the purported rights abuses are raised by Asif Musthaheen’s bail request. Even if the accusations made against him were true, Asif contends that they would not amount to the alleged offences. In addition, he alleges a violation of Rule 3 of the Unlawful Activities (Prevention) Rules, citing a 60-day lag in the prosecution recommendation, which he argues violates his Article 21 constitutional rights. By citing an earlier Supreme Court ruling, the respondents refute the bail request and argue that Asif has a prima facie case established against him.
Legal Provisions
Section 15 of the UAPA pertains to the definition of a terrorist act and requires that the act must be done with the intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India, or with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. Article 21 guarantees the right to life and personal liberty and provides that no person shall be deprived of their life or personal liberty except according to the procedure established by law.
Issues
Does the killing of a Hindu religious leader, in the absence of evidence proving a conspiracy to commit a terrorist act warrant prolonged detention under the UAPA?
Does the alleged violation of procedural rules regarding the recommendation for prosecution impact the accused’s right to a speedy trial under Article 21 of the Constitution, justifying the consideration of a bail application?
Courts analysis and decision
The High Court debated whether the murder of a Hindu religious leader may be automatically classified as a terrorist crime under Section 15 of the Unlawful Activities Prevention crime when deciding on a bail request under that act. The court noted that the issue remained disputed since there was insufficient proof to prove a plot to commit a terrorist act. The court emphasized the contrast between a conspiracy to carry out a terrorist act and the murdering of religious leaders, stressing that the existence of a conspiracy for other criminal activities, including serious offences, did not always imply the existence of a conspiracy for terrorist acts.
The court explained that, taking into account the larger potential of the case, its observations were made within the parameters of the bail application. It questioned why the prosecution had not shown how the alleged conspiracy by the BJP and RSS against Hindu religious leaders would qualify as a terrorist act under Section 15 of the UAPA. A possible procedural rule breach was also addressed by the court, which emphasized the unclear date of the recommending authority’s receipt of the evidence and stated that failure to comply could give rise to an argument that the accused’s right to a prompt trial under Article 21 of the Constitution was violated. Notwithstanding the limitations imposed by Section 43-D (5) of the UAPA, the court determined that Asif could not be held indefinitely without charge or trial and proposed that bail be allowed subject to certain requirements.
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Written by- Rupika Goundla
