Delhi High Court: In an appeal field by the appellant (‘accused’) under Section 21(4) of the National Investigation Act, 2008 read with Section 4821 of the Criminal Procedure Code, 1973 (‘CrPC’) challenging the impugned order dated 23-08-2023, whereby the bail applications were dismissed, the Division Bench of Prathiba M. Singh and Amit Sharma*, JJ., stated that the accused was an educated person and was well-aware of the nature of activities of ISIS. Moreover, it was not a case of passive support to a terrorist organisation, but rather the chats, showed that the accused was advocating Jihad to establish Khilafat. By doing so, the accused was also trying to recruit the individuals on these online groups for such acts.
Thus, the Court opined that the mandate of Section 43(D)(5) of Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) was clearly applicable, and under these circumstances, the impugned order did not warrant any interference.
Background
In the present case, as per the prosecution, certain inputs were received regarding proscribed terrorist organizations such as Islamic State of Iraq and Syria (‘ISIS’) running a campaign in the cyber space for radicalizing youths and carrying out terrorist activities in India and elsewhere. It was alleged that one cyber identity by the name ‘A’ along with his associates was actively involved in creating and disseminating ISIS centric propaganda with the intention of motivating youths for taking part in violent jihad.
In pursuance of the above, Ministry of Home Affairs, Government of India vide order dated 29-06-2021 directed the National Investigation Agency to register and investigate the aforesaid case. The prosecution’s case was that the accused was a close associate of co-accused ‘B’ and had conspired to establish Sharia law in India under the flag of ISIS by waging Jihad. It was alleged that the accused was disseminating the ISIS ideology through the cyber space and was spreading hatred against the Government of India by promoting enmity against Hindus on social media. Further, it was also alleged that the accused had transferred funds for the cause of ISIS from his bank account. Also, various incriminating materials were found in the electronic devices recovered from the accused during the investigation.
The accused was arrested by the respondent on 22-10-2022 and was charge-sheeted in the present case vide second supplementary charge-sheet for the offences punishable under Sections 17, 18, 38 and 39 of the UAPA and Sections 120-B2/153-A3 and 153-B4 of the Penal Code, 1860.
Thereafter, the accused filed an application under Section 4375 CrPC. read with Section 43(D)(5) of UAPA seeking regular bail and the same was dismissed by the Trial Court vide the impugned order. Thus, the present appeal was filed.
Analysis, Law, and Decision
The Court noted that it was the accused’s admitted case that he was qualified MBA and was working in an IT Company based in Gurgaon as a Senior Project Manager. The prosecution had placed heavy reliance on chats retrieved from various devices seized from the accused to establish its case with respect to the accused.
The Court after perusal of the chats retrieved from various devices of the accused, observed that in the accused was clearly conveying to the other person that despite of him being well placed in an IT company, he was not happy as he was unable to do much for Jihad. Apart from the above, the Court stated that the recovery of incriminating material recovered from the mobile phone of the accused showing Pro-ISIS material showed that the accused was deeply influenced with the philosophy and ideology of the ISIS. The Court stated that the chats reflected that the accused was not just a passive supporter of ISIS but was determined to further its activities by influencing other individuals at various platforms.
The Court stated that the ISIS had been declared to be a terrorist organisation, and judicial notice could be taken of the fact that the world at large knew about the activities of ISIS. The chats retrieved from the accused’s devices further reflected the accused’s intention to join ISIS (Dawlah) and was ready to perform Hijrah (travel) for the same. The Court observed that in two sets of chats, it was the accused who was asking other persons for finding a way to reach Dawlah.
The Court stated that as already noted, the accused was an educated person and was well-aware of the nature of activities of ISIS. Moreover, it was not a case of passive support to a terrorist organisation, but rather the chats, showed that the accused was advocating Jihad to establish Khilafat. By doing so, the accused was also trying to recruit the individuals on these online groups for such acts.
Thus, the Court opined that the mandate of Section 43(D)(5) of UAPA was clearly applicable, and under these circumstances, the impugned order did not warrant any interference. Accordingly, the Court dismissed the petition and clarified that the observations made in this judgment was not an opinion of the merits of the case and was only to determine whether prima facie case was made out against the accused.
[Heydaitullah v. NIA, CRL.A., 871 of 2023, decided on 10-01-2025]
*Judgment authored by: Justice Amit Sharma
Advocates who appeared in this case :
For the Appellant: Trideep Pais, Senior Advocate with Kartik Murukutla, Advocate;
For the Respondent: Rahul Tyagi, SPP (NIA) with Jatin, Amit Rohila and Shaurya Lamba, Advocates with Insp. Vishnu Kumar, CIO, NIA with B.P. Gautam.
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1. Corresponding Section 528 of Nagarik Suraksha Sanhita, 2023 (‘BNSS’)
2. Corresponding Section 61(2) of Nyaya Sanhita, 2023 (‘BNS’)
3. Corresponding Section 196 of BNS
