One needn’t be member of a Terrorist Organisation to be prosecuted for a ‘Terrorist Act’: Karnataka High Court Analysing the judgment in case where court denied bail to two members of PFI accused of killing an RSS worker
14, Jul 2022 | Smital Sawant
The Karnataka High Court has held that it is not necessary that an individual being prosecuted for “terrorist act” defined under section 15 of the Unlawful Activities (Prevention) Act, 1967, should be a member of a terrorist organisation, reported LiveLaw.
A division bench of Justices K Somashekar and Shivashankar Amarannavar held, “An individual can be prosecuted for terrorist act defined under Section 15 of the UAPA law and it is not necessary that to prosecute any person under this law he should be a member of a terrorist organization. Being a member of a terrorist gang or organization, which is involved in terrorist act itself is an offence under Section 20 of the Act. Therefore, the contention of the appellants that individuals who are not members of banned organization cannot be prosecuted for offence under UAPA does not hold any substance.”
Brief background of the case
A case was registered against the two members of Popular Front of India (PFI) Irfan Pasha and Mohammed Mujeeb Ulla for having committed the brutal murder of one Rudresh, a worker of the Rashtriya Swayamsevak Sangh (RSS) on October 16, 2016, near Srinivas Medical Stores in Shivajinagar. After conducting an investigation, the National Investigating Agency (NIA) filed a chargesheet under Sections 120B, 109, 150, 153- A, 302, 201 read with Section 34 of IPC, Sections 3 and 27 of the Arms Act and Sections 15, 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the `UAPA’ for brevity). The High Court rejected the appeal filed by the accused against the order of special NIA court, rejecting their bail application.
Contentions raised by the appellant-accused
Stating that there is no charge on the offence under Section 15 of the UAPA, the counsel for the appellant-accused argued that the sanction accorded to prosecute the accused was not by a competent authority and therefore on that ground the appellants were entitled for grant of bail. The counsel further contended that if there is no valid sanction, the designated Court would get no jurisdiction to try any person mentioned in the report as the Court is forbidden from taking cognizance of the offence and without such previous sanction the proceedings would be without jurisdiction. Moreover, the counsel contended that PFI and Social Democratic Party of India (SDPI) were not banned organisations. It was contended that the trial Court had failed to consider the material on record and no material was available to connect the appellants to the crime and to reject the application seeking bail.
Contentions raised by the Spl PP appearing for NIA
Referring to the provisions of Section 43-D of the UAPA, the NIA contended that there was a clear bar to grant bail and the very purpose of introducing Section 43-D of the UAPA was to take note of the gravity of the offence that become triable under the provisions of the said Act. The learned counsel contended that on perusal of the proviso to Section 43- D-(5) of the UAPA it is clear that the Court while dealing with a case shall not grant bail to any person if on perusal of the charge sheet material it is of the opinion that there are reasonable grounds for believing that accusations against such person is prima facie true.
The learned Special Public Prosecutor further argued that under Sections 16, 18 and 20 of the UAPA, any individual who commits terrorist act can be prosecuted for the said offence and it is not necessary that he should be a member of any banned organisation which is mentioned in first schedule of UAPA as terrorist organisation. He further contented that to prosecute a person for offence under chapters IV and VI of the UAPA previous sanction by the Central Government or as the case may the State Government is required as per the provisions contained in Section 45(i)(2) of the UAP Act. It was his further contention that previous sanction accorded was in the name of the President of India and it was signed by the Under Secretary to the Government of India and it was not accorded only by the Under Secretary and therefore previous sanction was valid. The learned counsel further contended that the accusations against appellants-accused were prima facie true and therefore the trial Court had rightly rejected the bail application by considering the proviso of sub-section (5) of Section 43-D of the UAP Act. It was his further submission that there were no grounds for interfering with the impugned order of rejection of bail and there were no grounds made out for grant of bail to the appellants-accused.
Findings of the Court
The Court observed: “What is `terrorist act’ has been enumerated in Section 15 of the UPA Act and the punishment for terrorist act is provided under Section 16 of the UPA Act. The said provision commences with the words `whoever’. The dictionary meaning of `whoever’ is `anyone or everyone’. Any person who is a member of terrorist organization contained in the Section 20 has not been used in the definition of terrorist act (Section 15) or in the offence of conspiracy punishable under Section 18 of UPA Act. Therefore, an individual can be prosecuted for terrorist act defined under Section 15 of the UPA Act and it is not necessary that to prosecute any person under the UPA Act he should be a member of a terrorist organization. Being a member of a terrorist gang or organization which is involved in terrorist act itself is an offence under Section 20 of the UPA Act. Therefore, the contention of the learned counsel for the appellants that individuals who are not members of banned organization cannot be prosecuted for offence under UPA Act does not hold any substance.”
The Court held that since there was no animosity between the accused and deceased Rudresh, the alleged act of murdering the deceased Rudresh had been committed “with an intention to create terror in the mind of members of RSS”.
Therefore, the Court held that after considering all the charge sheet material, the trial Court rightly came to the conclusion that there is a prima facie case against the accused persons to show their involvement in the crime. It further held that as per the provisions contained under Section 43(D)(5) of the UAPA, the accused persons facing charge under the provisions of the said Act are not entitled for bail unless the Court comes to the conclusion that there is no prima facie case against them.
With respect to the contentions raised on previous sanction being passed or not, in the case on hand previous sanction has been passed in the name of President of India and it is singed by the Under Secretary to Government of India. According to the court, the said previous sanction appeared to be valid and were very well subject to the determination by the special Court at the trial.
It finally concluded that the perusal of the material on record disclosed there was sufficient material against appellants-accused. The Court ruled that prima facie case existed against accused, there was no merit in this appeal and no grounds to set aside the impugned order.
The complete Karnataka HIgh Court judgment date July 1, 2022, may be read here:
Provisions of UAPA
- Terrorist act.—(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security [, economic security,] or sovereignty of India or with 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,—
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause—
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or]
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or [an international or inter-governmental organisation or any other person to do or abstain from doing any act; or] commits a terrorist act.
[Explanation.—For the purpose of this sub-section,—
(a) “public functionary” means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
(b) “high quality counterfeit Indian currency” means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.]
(2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.
- Punishment for terrorist act.—(1) Whoever commits a terrorist act shall,—
(a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine;
(b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine
- Punishment for raising funds for terrorist act.—Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
Explanation.—For the purpose of this section,— (a) participating, organising or directing in any of the acts stated therein shall constitute an offence; (b) raising funds shall include raising or collecting or providing funds through production or smuggling or circulation of high quality counterfeit Indian currency; and (c) raising or collecting or providing funds, in any manner for the benefit of, or, to an individual terrorist, terrorist gang or terrorist organisation for the purpose not specifically covered under section 15 shall also be construed as an offence.]
- Punishment for conspiracy, etc.—Whoever conspires or attempts to commit, or advocates, abets, advises or 3 [incites, directly or knowingly facilitates] the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
- Punishment for being member of terrorist gang or organisation.—Any person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
Judicial precedent
In Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. (1994) 4 SCC 602 , the Hon’ble Supreme Court defined the terms ‘terrorism’ and ‘Terrorist activity’. It observed, “‘Terrorism’ is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. ‘Terrorism’ has not been defined under TADA nor is it possible to give a precise definition of ‘terrorism’ or lay down what constitutes ‘terrorism’. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity.”……
“A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that ‘terrorism’ is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon. What distinguishes ‘terrorism’ from other forms of violence, therefore, appears to be the deliberate and systematic use of coercive intimidation.”
“Even though the crime committed by a ‘terrorist’ and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every ‘terrorist’ may be a criminal but every criminal cannot be given the label of a ‘terrorist’ only to set in motion the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated in Section 3(1) and which cause or are likely to result in the offences as mentioned in the said section.”
In the case of People’s Union For Civil Liberties and Anr. vs. Union of India (2004) 9 SCC 580 , the Hon’ble Supreme Court observed, “Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear,… This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together.”
In the case of Asif Iqbal Tanha vs State Of Nct Of Delhi (2021) SCC OnLine Del 3253 , the Delhi High Court making observations on the interpretation of the provisions under UAPA held, “Another sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed.” …
“Though, as seen above, the phrase ‘terrorist act’ has been defined in a very wide and detailed manner within section 15 itself, in our opinion, the court must be careful in employing the definitional words and phrases used in section 15 in their absolute literal sense or use them lightly in a manner that would trivialize the extremely heinous offence of ‘terrorist act’, without understanding how terrorism is different even from conventional, heinous crime.”
“As observed by the Hon’ble Supreme Court in Hitendra Vishnu Thakur (supra), the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law.”
“In our view therefore, notwithstanding the fact that the definition of ‘terrorist act’ in section 15 UAPA is wide and even somewhat vague, the phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC.”
Also noteworthy are the words of another Constitution Bench of the Hon’ble Supreme Court in Sanjay Dutt (supra) to the effect that when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statute “are not roped in by stretching the law”.
“It is therefore clearly the position in our jurisprudence that where a provision of law engrafting serious penal consequences is vague, such provision must be construed narrowly in order to bring it within the constitutional framework; and must be applied in a just and fair way, lest it unjustly ropes within its ambit persons whom the Legislature never intended to punish. Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’.”
In the case of Devangana Kalita vs State Of Nct Delhi (2021) SCC OnLine Del 3255 , the Delhi Court held, “As detailed by this court in Asif Iqbal Tanha (supra), the position is that though the phrase ‘terrorist act’ has been given a very wide and detailed definition in section 15, in our considered view, the court must be careful in employing the definitional words and phrases used in section 15 in their absolute, literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of ‘terrorist act’, without understanding how terrorism is different even from conventional, heinous crime.”
“As this Court has held in Asif Iqbal Tanha (supra) therefore, in our view, although the definition of ‘terrorist act’ in section 15 UAPA is wide and even somewhat vague, the definition must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC.”
*With inputs from Sanchita Kadam
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