The Madras High Court recently granted bail to a man arrested and charged under the Unlawful Activities prevention Act (UAPA) last year by the Tamil Nadu police..While granting such bail however, a bench comprising of Justices SS Sundar and Sunder Mohan raised a significant question on whether a conspiracy to kill a Hindu religious leader could qualify as a terrorist activity as defined under the UAPA?The prosecution had claimed that the accused, one Asif Musthaheen had conspired to kill some Hindu religious leaders and members of the Rashtriya Swayamsevak Sangh (RSS) and had therefore committed terrorist activity as defined under Sections 18 and 38(2) of the UAPA..The High Court held that the material on record was not adequate for the Court to conclude the existence of a terrorist activity or such conspiracy and granted bail. The Court also asked whether a conspiracy to kill a Hindu religious leader in itself can be termed a terrorist act?.“As regards the offence under Section 18 of the UA (P) Act, it is the prosecution case in the final report that appellant/A1 and A2 conspired to commit terrorist acts in India against Hindu religious leaders belonging to the BJP and RSS. The evidence discloses that the conspiracy was to attack certain religious leaders. The respondent has not spelt out how that would amount to a terrorist act as defined under Section 15 of the UA (P) Act. In order to bring an act under Section 15 of the UA (P) Act, the act must be done with an 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. The question as to whether the killing of Hindu religious leaders by itself can constitute a terrorist act is debatable. However, considering the broad probabilities of the case from the materials collected by the prosecution, one cannot definitely conclude that there was a conspiracy to commit a terrorist act, though there is a conspiracy to commit other illegal acts including serious offences,” the High Court said..The Court, however, went on to say that its observations with regard to a prima facie case under Section 18 and 38(2) of the Act had been made by considering only the broad possibilities of the case for the mere purpose of considering the bail application..It also took note of the fact that there was no clarity on whether the police had acquired requisite sanction for prosecuting the accused within seven days of the Investigating Officer having acquired evidence, as mandated under the Act..The Court said that while the validity of such sanction will be looked into at the time of trial, any delay caused in getting it however, was an adequate ground to waive the prohibition on bail that Section 43 D(5) of the Act imposes."Even assuming that the materials collected by the prosecution may ultimately lead to a conviction, the detention pending trial cannot be indefinite,” the Court said while allowing the bail application..Senior Counsel T Mohan and advocate S Veeraraghavan appeared for Asif Musthaheen, the appellant in the case.Additional Public Prosecutor A Gokulakrishnan appeared for the respondent state government..[Read Order]
The Madras High Court recently granted bail to a man arrested and charged under the Unlawful Activities prevention Act (UAPA) last year by the Tamil Nadu police..While granting such bail however, a bench comprising of Justices SS Sundar and Sunder Mohan raised a significant question on whether a conspiracy to kill a Hindu religious leader could qualify as a terrorist activity as defined under the UAPA?The prosecution had claimed that the accused, one Asif Musthaheen had conspired to kill some Hindu religious leaders and members of the Rashtriya Swayamsevak Sangh (RSS) and had therefore committed terrorist activity as defined under Sections 18 and 38(2) of the UAPA..The High Court held that the material on record was not adequate for the Court to conclude the existence of a terrorist activity or such conspiracy and granted bail. The Court also asked whether a conspiracy to kill a Hindu religious leader in itself can be termed a terrorist act?.“As regards the offence under Section 18 of the UA (P) Act, it is the prosecution case in the final report that appellant/A1 and A2 conspired to commit terrorist acts in India against Hindu religious leaders belonging to the BJP and RSS. The evidence discloses that the conspiracy was to attack certain religious leaders. The respondent has not spelt out how that would amount to a terrorist act as defined under Section 15 of the UA (P) Act. In order to bring an act under Section 15 of the UA (P) Act, the act must be done with an 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. The question as to whether the killing of Hindu religious leaders by itself can constitute a terrorist act is debatable. However, considering the broad probabilities of the case from the materials collected by the prosecution, one cannot definitely conclude that there was a conspiracy to commit a terrorist act, though there is a conspiracy to commit other illegal acts including serious offences,” the High Court said..The Court, however, went on to say that its observations with regard to a prima facie case under Section 18 and 38(2) of the Act had been made by considering only the broad possibilities of the case for the mere purpose of considering the bail application..It also took note of the fact that there was no clarity on whether the police had acquired requisite sanction for prosecuting the accused within seven days of the Investigating Officer having acquired evidence, as mandated under the Act..The Court said that while the validity of such sanction will be looked into at the time of trial, any delay caused in getting it however, was an adequate ground to waive the prohibition on bail that Section 43 D(5) of the Act imposes."Even assuming that the materials collected by the prosecution may ultimately lead to a conviction, the detention pending trial cannot be indefinite,” the Court said while allowing the bail application..Senior Counsel T Mohan and advocate S Veeraraghavan appeared for Asif Musthaheen, the appellant in the case.Additional Public Prosecutor A Gokulakrishnan appeared for the respondent state government..[Read Order]
