Delhi HC says 'fascination' with ISIS can't be dubbed as association, grants bail in UAPA case

Delhi HC says 'fascination' with ISIS can't be dubbed as association, grants bail in UAPA case

New Delhi | The Delhi High Court on Monday granted bail to an alleged ISIS supporter in a case under the anti-terror law UAPA, saying his "fascination" with the banned terrorist organisation cannot be dubbed as his association with it.

A bench headed by Justice Suresh Kumar Kait stated that 30-year-old Ammar Abdul Rahiman was, at best, a "highly radicalised person" who believed in ISIS ideology and was merely downloading and storing certain allegedly objectionable contents on his mobile phone but there was nothing to indicate that he made any endeavour to further disseminate these.

Any curious mind, the court observed, can access and download such content from the internet, which, by itself, is not a crime.

"Merely because the mobile device of the appellant was found carrying incriminating material including photographs of terrorist Osama bin Laden, Jihad Promotion, ISIS flags, etc. and he was also accessing lectures of hard-liner/Muslim preachers would not be enough to brand him as a member of such terrorist organization, much less his being acting in furtherance of its cause," the bench, also comprising Justice Manoj Jain, said.

"Such type of incriminating material, in today’s electronic era, is freely available on World Wide Web (www) and mere accessing the same and even downloading the same would not be sufficient to hold that he had associated himself with ISIS. Any curious mind can access and even download such content. That act by itself, to us, appears to be no crime," added the court while allowing Rahiman's appeal against a trial court order refusing to release him on bail.

The court held that being in possession of incriminating material, in hard form or soft form, would not be sufficient to hold that such possession was with the intention to further terrorist activities as "there has to be something more than that".

"At best, the appellant was highly radicalized and had downloaded pro-ISIS material and was accessing the sermons of Muslim hard-liner but that would not be enough to attract Section 38 (offence relating to membership of a terrorist organisation) and 39 (Offence relating to support given to a terrorist organisation) of UAPA," the court stated.

The National Investigation Agency (NIA) alleged that the appellant, arrested in August 2021, entered into criminal conspiracy with ISIS members for undertaking 'Hijrah' to Jammu and Kashmir and to carry out the activities of ISIS in India.

It was stated the appellant followed pro-ISIS Instagram account and photographs of global terrorist Osama bin Laden, Jihad promotion, ISIS flags etc. were also found in his digital devices.

In the 46-page judgement, the court observed the data which was retrieved from the electronic device/mobile of the appellant does not advance the case of prosecution and the invocation of Section 38 and 39 of the Unlawful Activities (Prevention) Act (UAPA) seemed "erroneous and misplaced" in the present case.

It noted that the trial court has directed the appellant to face trial for offences of conspiracy under the Indian Penal Code read with Section 2(o) (unlawful activity) and sections 13 (punishment for unlawful activities), 38 and 39 of UAPA but has prima facie found that he was either perpetrator of any terrorist act or was conspiring to commit the same.

The court stated that downloading certain software like MobileSafari or Telegram would also "not mean anything" as they are available in public domain and no adverse inference can be drawn and it was imperative for the prosecution to have established the ingredient of "mens rea" i.e. acting with intention to further the activities of such terrorist organization.

The court further observed that the Supreme Court, while dealing with the Bhima Koregaon case, has observed that mere possession of certain literature, which even inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of UAPA.

"Merely because he was following some news items related to Middle East and Israel-Palestine conflict or had been accessing hate speeches of hard-line Muslim preachers, would not be enough to hold that he was acting in furtherance of a banned terrorist organisation," it said.

The court therefore directed that the appellant be released on bail on such terms and conditions as the trial court may consider fit and proper.

It also held that the court can consider bail plea in a UAPA case, even after ascertainment of charges as the right to seek bail is an indefeasible one and can be exercised at any stage.

"Consequently, we, hereby, allow the present appeal and direct that the appellant be released on bail on such terms and conditions, as the concerned learned Special Court may consider fit and proper," the court ordered.

Delhi HC directs release of Newsclick HR head Amit Chakravarty in UAPA case

New Delhi | The Delhi High Court on Monday ordered release of NewsClick's human resources department chief Amit Chakravarty from custody in the case lodged against the news portal under anti-terror law UAPA over allegations that it received money to spread pro-China propaganda.

Justice Swarana Kanta Sharma passed the order considering his medical condition and that the prosecution has no objection to the release of the petitioner from custody as he has turned approver in the case and granted pardon.

The high court had reserved its order on the plea by Chakravarty, who turned an approver in the case in January, on May 3 after his counsel submitted that the chargesheet has already been filed in the case and the petitioner, after turning an approver, has been cited as a prosecution witness.

"This court directs that the petitioner be released on his furnishing a personal bond in the sum of Rs 25,000 with one surety of the like amount, subject to the satisfaction of concerned trial court," the high court said.

The court said there is no doubt about the fact that one of the objectives of keeping the approver in custody till the conclusion of trial is to prevent him from the temptation of saving his former friends and companions by resiling from the terms of pardon.

"However, it is also not in dispute that in case the petitioner fails to comply with the conditions of pardon such as failing to depose during the course of trial as a prosecution witness, or deposing in contradiction to his statement recorded under Section 164 of CrPC at the time of grant of pardon or not disclosing the true and correct facts or wilfully concealing the true facts, Section 308 of CrPC would be attracted and the petitioner would be liable to be tried for the offence in respect of which he was given pardon, in addition to offence of giving false evidence," the high court said.

It noted that Chakravarty suffers from 59 per cent permanent disability and was dependent on wheel chair for his day-to-day movement.

The court said it was evident that he faces significant obstacles in carrying out even basic activities of daily living.

"The petitioner's medical condition warrants special consideration and calls for a humane and understanding approach to his situation. In cases where an individual's physical disability significantly affects his well-being and daily functioning, the court must acknowledge its responsibility to intervene judiciously and consider the possibility of relief or release from custody if the same is permissible under law," it said

The counsel for the Delhi Police had said the prosecution has no objection if the relief is granted to him.

Chakravarty's lawyer had said his client has been granted pardon in the case by the trial court and is also cooperating in the probe.

In January, the trial court allowed Chakravarty to turn an approver in the case and granted him pardon.

Chakravarty has claimed he is in possession of "material information" about the case which he was willing to disclose to the Delhi Police.

The Special Cell of Delhi Police had arrested NewsClick founder Prabir Purkayastha and Chakravarty on October 3 last year and both of them are currently in judicial custody.

According to the FIR, a large amount of funds to the news portal came from China to "disrupt the sovereignty of India" and cause disaffection against the country.

It also alleged Purkayastha conspired with a group -- People's Alliance for Democracy and Secularism (PADS) -- to sabotage the electoral process during the 2019 Lok Sabha polls.

Raids were conducted at 88 locations in Delhi and seven in other states on October 3 on the suspects named in the FIR and those that surfaced in the analysis of data, police said.

Around 300 electronic gadgets were also seized from the offices of NewsClick and the residences of the journalists who were examined.

Following the raids, 46 individuals, including nine female journalists, were questioned by the Special Cell.

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