While granting bail to a man booked under the Unlawful Activities Prevention Act, the Madras High Court recently observed that whether the killing of Hindu religious leaders by itself can constitute a terrorist act is debatable. The man, namely Asif Musthaheen, was accused of intending to cause injury to leaders of Hindu organisations in and around the area where he was living. Allegedly, he was a staunch supporter of Islamic rule in India and Osama bin Laden and had been following the ideology of the terrorist organisation al-Qaeda.
Musthaheen had been denied bail by the Sessions Judge of Erode district in April this year. He was arrested on July 26, 2022, for the offences under sections 121, 122, and 125 of the IPC r/w 18, 18A, 20, 38 and 39 of the UAPA.
The case of the prosecution was that Musthaheen began collecting information through social media about the Islamic State of Iraq and Syria (ISIS) and got in touch with an ISIS member through an app called Nekogram. He chatted on the app with the ISIS member using the nickname ‘Abu Talha’. The message between the two which were originally in Arabic, showed that he intended to cause threat to the unity and integrity of India and had planned to kill the leader of Hindu organisation for that.
Seeking relief before the high court, the counsel for Musthaheen submitted before the high court that he had been in custody since July 2022 and that the nature of the allegations was such that it did not warrant a prolonged indefinite pre-trial detention.
He stressed that the authorities had not recovered any incriminating materials from Musthaheen except for a mobile phone which he had allegedly used to communicate with the ISIS member.
The counsel further argued that even if it was assumed that Musthaheen had indeed communicated with the ISIS member, it did not constitute the offences alleged against him.
On the contrary, the Additional Public Prosecutor said that the top court also had observed that a prima facie case was made out against Musthaheen while dismissing the SLP filed by him challenging the order of dismissal of his earlier bail application.
The high court bench of Justice SS Sundar and Justice Sunder Mohan noted that the text messages shown between Musthaheen and the alleged ISIS member did not indicate anywhere that he had joined ISIS. The court also pointed out that the prosecution had not produced any evidence to show that the other person was an ISIS member.
“Therefore, we are of the prima facie view that the offence under Section 38(2) of the UA (P) Act, has not been made out,” the bench held.
Further, the bench noted that as regards the offence under Section 18 of the UAPA, it was the prosecution case that Musthaheen had 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,” the bench underscored.
The court stressed that 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 any foreign country.
Therefore, while allowing bail to Musthaheen, the bench, however, added that its observations about the prima facie case under Sections 18 and 38(2) of the UA (P) Act were only made by taking into consideration the broad probabilities of the case and to consider the bail application.
