Title: Barakathullah and Others v Union of India
Citation: CRLA.Nos.98, 114 & 116/2023
Decided on: 19.10.2023
Coram: Justice SS Sundar and Justice Sunder Mohan
Introduction
The present matter came before the Madras High Court in connection with granting of bail to accused who were charged under the Unlawful Activities Prevention Act (UAPA) for conspiring to commit terrorist act in various part of India. The division bench consisting of Justice SS Sundar and Justice Sunder Mohan, while granting bail to the accused men stated that there were no materials on record that could directly link any of the appellants to the alleged offence committed by them and hence, it would be wrong in denying bail to the appellants. Further, the court stated that for as act to be considered as preparatory to the terrorist act, the act must have direct link to the intended result and the present accusations were merely based on assumptions and probabilities.
Facts of the case
The appellants have come before this court regarding their bail application. The complainant allege that the appellants are office bearers, members and cadres of the Popular Front Of India (PFI). It was further alleged that they were involved in a conspiracy to carry out terrorist attacks against perceived anti-Islamic forces of other religions by deploying its ‘hit squads’, to attack, assault, maim and murder them with an intention to breach the peace and security of the nation. Due to which they were charged under the the Unlawful Activities Prevention Act (UAPA). Their bail application was rejected by the special court on the ground that there was prima facie case against the appellants. Contending which, the appellants state that there were no definite accusations or material document or evidence in this regard. It was also contended by the appellants that they were booked under UAPA merely for being the members of the said organization, despite the organization being lawful in nature. Further, the appellants also argued that the NIA could not directly register an FIR in the absence of a report from the State Government as per Section 6 (2) of the National Investigation Act, 2008.
However, the Additional Solicitor General argued that there were materials and evidence to show that the organization was carrying out certain activities such as physical training of its members which point to the fact that they were indulging in preparatory act to commit terrorist attacks and the same would be an offence under Section 18 of UAPA and therefore Section 43D(5) of the Act could be invoked.
Court’s observation and analysis
The High Court of Madras in this case held that there was no material facts or evidence that can point to the facts that there was commission of any offence by any of the appellants to attract Section 15 of UAPA. However, the learned Additional Solicitor General submits that the appellants have committed an offence under Section 18 of UAPA as the statements of the Listed Witnesses would certainly indicate the commission of an act preparatory to the commission of a terrorist act.
The division bench consisting of Justice SS Sundar and Justice Sunder Mohan, while granting bail to the accused men stated that there were no materials on record that could directly link any of the appellants to the alleged offence committed by them and hence, it would be wrong in denying bail to the appellants. Further, the court stated that for as act to be considered as preparatory to the terrorist act, the act must have direct link to the intended result and the present accusations were merely based on assumptions and probabilities. Further, the court made the observation that in the instant case, it is the allegation of the prosecution that training was given by the accused to various persons to throw beer bottles filled with water and to aim at objects. From this, the prosecution draws an inference that this training was imparted only to make petrol bombs later and use those petrol bombs for achieving the object of the accused. It is not the case of the prosecution that the accused was found in possession of any petrol bombs, in which case, it may be a proximate act and may be a preparatory act for the commission of terrorist act. Therefore, in order to bring any act as preparatory act to commit terrorist act, as stated earlier, it must be proximate to the intended result.
The High Court further observed that the special court only rejected the bail application and invoked Section 43D(5) of the act only on the basis of allegation levelled against the appellants. The court further made an observation, that the allegations against the appellants were merely based on assumptions and probabilities.
With regards to the NIA suo moto taking up the case in the absence of a report from the State, the court observed that the registration of an FIR by an officer in charge of a Police Station was not a since quo non for the Central Government to direct investigation by the NIA.
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Written by- Amrita Rout
