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Friday, July 1, 2022

Attending jihadi meetings, purchasing training material, sheltering co-members not a terrorist act: Karnataka HC grants bail to IS terror suspect Saleem Khan

The Karnataka High Court (HC) has granted bail to suspected Islamic State terrorist Saleem Khan who had been booked under the Unlawful Activities Prevention Act (UAPA) in the Islamic State Al-Hind module case. Bail was denied to another accused in the same case, Mohammad Zaid.

A division bench of Justice B Veerappa and Justice S. Rachaiah said, “Mere attending meetings and becoming Member of Al-Hind Group, which is not a banned organization as contemplated under the Schedule of UA(P) Act and attending jihadi meetings, purchasing training materials and organizing shelters for co-members is not an offence as contemplated under the provisions of section 2(k) or section 2(m) of UA(P) Act.”

Al-Hind is the name of the Islamic State (IS) terrorist group headed by Mehboob Pasha, a resident of Gurappanapalya in Bengaluru, and Khaja Moideen (accused in several cases registered in Tamil Nadu related to terrorism, murder of Hindu leaders). The group was formed by recruiting young Muslims in south Bharat. They had selected Bengaluru as their base and conducted several criminal conspiracy meetings in Karnataka and Tamil Nadu since 2019 where they had propagated the ideology of the proscribed terrorist organisation, IS (ISIS) and conspired to collect arms and explosives for murdering police officers and Hindu leaders.

Moideen had collected and handed over arms and ammunition in Mumbai to others in the terror module, and these same arms were used in the murder of SSI Wilson of Tamil Nadu police on the Kerala-TN border.

It is pertinent to note that members of the module were already wanted for the murder of Hindu Munnani leader KPS Suresh Kumar who was murdered in Ambattur, TN in 2014. However, they were out on conditional bail and had somehow managed to escape. Some of them had also received training in terror camps in Kerala and Syria. Moideen and few others were finally arrested from Delhi.

The NIA had re-registered the case on January 23, 2020 against 17 accused. On the Special NIA court rejecting their bail applications by order dated December 29, 2020, the accused approached the high court in appeal.

NIA had opposed the bail plea, and special public prosecutor P Prasanna Kumar’s argued that the charge sheet depicts that both accused Saleem Khan and Mohammad Zaid had attended several conspiracy meetings with the prime accused Mehboob Pasha, and they are directly involved in the offences made out against them in the charge sheet.

The bench observed, “Section 18A deals with imparting training in terrorism and section 20 deals with punishment for being member of terrorist gang or organization. In the present case, the prosecution has not produced any material, as could be seen on examination of the chargesheet, against accused No.11 (Saleem Khan) about his involvement in terrorist act or being member of terrorist gang or organization or training terrorism.”

Further it said, “Admittedly, Al-Hind Group is not a terrorist organization as contemplated under section 39 of the UA(P) Act, thereby the prosecution has failed to prove the prima facie case for rejection of bail against accused No.11. Therefore, the trial Court is not justified in rejecting the bail application filed by accused No.11. On careful examination of the material forming part of the chargesheet, there are no reasonable grounds for believing the accusation against the accused No.11 prima facie true.”

Accordingly it held, “In the absence of any prima facie case, restrictions imposed by sub-section (5) of section 43-D per se do not prevent a Constitutional Court from granting bail on the grounds of violation of part III of the Constitution.” To fortify its view the bench relied on the Supreme Court judgement in the case Thwaha Fasal vs. Union of India. The court thus directed him to be released on bail, subject to executing a bond of Rs.2,00,000/- (Rupees Two Lakh only). It also imposed few other conditions to abide by.

However, court denied bail to accused Mohammed Zaid, noting, “He (Zaid) is associated with accused No.1 for contacting unknown ISIS handlers through Dark Web. ISIS is a banned organisation as contemplated under the Schedule of UA(P) Act)…He was part of the terror group and was involved in furthering the activities of ISIS in India ….thus, committed offences punishable under section 120B of IPC and sections 18, 20 and 39 of the UA(P) Act.”

The court also took into account that Zaid has also been named as an accused in a separate chargesheet filed by NIA in Delhi. Concluding that the accusations filed against him are prima facie true, the court held that he is not entitled to the discretionary relief of bail under section 439 of Cr.P.C.

This ruling has thrown up an interesting point. Although it was clear to all involved that this is an Islamic State inspired terror module, which had given itself the moniker Al-Hind, High Court held that as Al-Hind Group is not a banned terrorist organization, taking its membership and attending its meetings does not constitute a terrorist act! Does this offer an escape clause for terrorists to keep any random name to distance themselves from their parent organization?

As our higher judiciary often looks to the West for judicial principles, it would also do well to study American laws and trials where attending jihadi meetings, purchasing training material, and sheltering jihadis is seen very seriously and has resulted in lengthy prison sentences.

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