Delhi High Court: Two appeals were filed by the appellants seeking reduction of their respective sentences imposed by Patiala House Courts, New Delhi vide order dated 06-05-2024. A Division Bench of Prathiba M. Singh and Amit Sharma, JJ., modified sentence of (A-2) from imprisonment for a period of 8 years each to imprisonment for a period of 6 years each for offences under Sections 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and no fine was imposed, and the sentences for the said offences were directed to run concurrently. The Court also modified the sentence of (A-4) from imprisonment for a period of 7 years each to imprisonment for a period of 6 years each for offences under Sections 38 and 39 of the UAPA. No fine was imposed on her either, and the sentences were ordered to run concurrently in both cases.
An FIR was registered by the Special Cell on 08-03-2020 against two individuals who are also accused persons A-1 and A-2, alleging their affiliation with the proscribed terrorist organization Islamic State Khorasan Province (ISKP), a part of ISIS. The accused were arrested on the same day. The allegations included their involvement in anti-national activities in India, and during the investigation, incriminating materials, such as an anti-nationalist magazine, were seized from A-2’s house and car. Based on A-2’s disclosures, A-3 (a third accused) was arrested on 17-03-2020. Following these developments, the Ministry of Home Affairs transferred the investigation to the National Investigation Agency (NIA), which registered. As the investigation progressed, further arrests were made, including A-4 and A-5, with the seizure of electronic devices and documents. The charges were primarily related to conspiracy, promoting terrorism, and creating anonymous social media accounts to conceal identities while propagating ISIS’s ideology.
On 28-07- 2023, after completing the investigation, the NIA filed a chargesheet against the accused under various provisions of the Penal Code, 1860 and the Unlawful Activities Prevention Act. The charges against A-2 and A-4 focused on their affiliation with ISIS and ISKP, spreading terrorist materials, and engaging in anti-national activities. A supplementary chargesheet filed later added A-6, who was allegedly planning to join ISIS. The charges against A-1 included conspiracy to carry out terrorist attacks and financial transactions linked to terrorism. A-2 and A-4 were charged under Sections 38 and 39 of the UAPA, and they were discharged from other sections of the UAPA and IPC. After framing charges on 26-02-2024, the accused, except A-6, expressed their intention to plead guilty. The Trial Court held the accused guilty, leading to the filing of the present appeals by the convicted parties.
The Court observed that it is clear that the challenge is limited to the quantum of sentences. The Court reflected a nuanced approach to sentencing and referred to international and domestic guidelines on sentencing, particularly those relevant to terrorism-related activities, emphasizing the need for a balanced approach that considered both the rights of the victims and the rehabilitative prospects of the offenders. While there were no specific sentencing guidelines in India akin to those in the United States or Sweden, the Court relied on established principles such as the crime test, criminal test, and comparative proportionality test as articulated in previous Supreme Court judgments. These tests assess factors like the extent of planning, the offender’s background, and the severity of the crime, while also considering the potential for rehabilitation.
The Court noted that while awarding sentences for terrorism-related activities, the Courts will have to, not merely bear in mind the crime committed but also the impact of the same and the propensity of the person to indulge in a similar crime in future. The intent behind providing a range of punishment that could be awarded for an offence is to give the Courts sufficient discretion to consider various aggravating and mitigating factors while awarding sentences. Though there is no doubt that discretion has to be exercised judiciously, it cannot be expected to be uniform. In a country like India, where there are possibilities of innocent persons being encouraged towards terrorism, it is not merely the rights of the convict that must be considered but also the impact of the said convict being allowed to integrate back into society which must be considered.
The Court observed that considering the specific facts of the present cases, the proliferation of crime through the internet and social media platforms cannot be ignored. The fact that the appellants used fake identities to conceal their original identity and avoid tracing also cannot be ignored. While encrypted platforms permit and encourage privacy and freedom of speech and expression, the misuse of the same by terrorists and banned organizations also would have to be borne in mind. The appellants are technologically savvy persons who have made use of their educational qualifications to promote terrorism and incite offensive activities against the country. Such cases would have to be dealt with differently than cases involving innocent persons, who may have been pulled into crime without their knowledge. The factors such as funding through bitcoins, as also the use of journalistic credentials to publish and disseminate magazines to incite violence, also cannot be ignored.
The Court compared the roles of the appellants with that of A-3, another accused in the case, who was already in custody when the FIR was registered. This distinction was crucial in determining that the appellants’ sentences should be modified. Based on a thorough evaluation of the facts, the role of the accused, and the aggravating and mitigating factors, the Court decided to reduce the sentences of both A-2 and A-4. The modified sentences were six years each for offences under Sections 38 and 39 of UAPA, to run concurrently. No fines were imposed.
Thus, the Court disposed of the appeals, making necessary modifications to the sentences considering the facts and legal principles governing sentencing in terrorism-related cases.
[Hina Bashir Khan v. NIA, 2024 SCC OnLine Del 7873, decided on 14-11-2024]
Advocates who appeared in this case :
Mr R K Thakur, Ms Kanishka Dhoundiyal and Mr Anoop Khanna, Advocates for appellants
Mr Rahul Tyagi, SPP (NIA) with Mr Sangeet Sibou, Mr Jatin, APP, Mr Vikas Walia, APP, Ms Priya Rai, Mr Abhishek Tomar, Advocates with Insp. Ajay Parmar CIO (NIA).
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