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"A Good Judgment But Reference To 'Shreya Singhal' Was Unnecessary": Supreme Court Refuses To Interfere With Bombay HC Order Granting Bail To Alleged 'ISIS Recruit'

Mehal Jain

11 Feb 2022 9:39 AM GMT

    • A Good Judgment But Reference To Shreya Singhal Was Unnecessary: Supreme Court Refuses To Interfere With Bombay HC Order Granting Bail To Alleged ISIS Recruit

    The Supreme Court on Friday observed that in granting bail to a young man accused of taking an oath of allegiance to the banned terror organization Islamic State and booked under the UAPA, it was unnecessary for the Bombay High Court to advert to the top court's 2015 Shreya Singhal decision and that the High Court's judgment can be sustained even independent of the said observation.The bench...

    The Supreme Court on Friday observed that in granting bail to a young man accused of taking an oath of allegiance to the banned terror organization Islamic State and booked under the UAPA, it was unnecessary for the Bombay High Court to advert to the top court's 2015 Shreya Singhal decision and that the High Court's judgment can be sustained even independent of the said observation.

    The bench of Justices DY Chandrachud and Surya Kant was hearing the SLP against the August, 2021 decision of the Bombay High Court granting bail to one Iqbal Ahmed Kabir Ahmed on merits and on the ground of prolonged incarceration, holding that it infringes his right to life and personal liberty. The High Court had adverted to the 2021 Supreme Court decision in K. A. Najeeb wherein the Supreme Court while emphasising that under trials cannot be indefinitely detained pending trial, expounded in clear terms that once it is found that timely conclusion of trial would not be possible and accused has suffered incarceration for a significant period of time, the Court would be obligated to enlarge the accused on bail.The High Court was hearing the appeal under section 21 of the National Investigation Agency Act, 2008 (NIA Act) against a 2019 order passed by the learned Special Judge on an application preferred by the appellant-original accused No. 3 for enlarging him on bail, whereby the said application for bail came to be rejected.
    In the impugned judgment, the High Court had also observed, "In our view, there is a considerable substance in the submission of Mr. Desai (for the appellant) that the material qua the accused, at the highest, is in the realm of discussions. Mere discussion or for that matter advocacy of a particular cause, according to Mr. Desai, would not fall within the dragnet of an offence. To lend support to this submission, Mr. Desai placed reliance on the observations of the Supreme Court in the case of Shreya Singhal vs. Union of India". The High Court then reproduced the following observation of the top court in Shreya Singhal's case- "13. This leads us to a discussion of what is the content of the expression 'freedom of speech and expression'. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1) (a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc. Why it is important to have these three concepts in mind is because most of the arguments of both petitioners and respondents tended to veer around the expression 'public order'.
    Proceedings before the Supreme Court
    On Friday, SG Tushar Mehta had submitted before the bench of Justices Chandrachud and Surya Kant, "In a bail order, the High Court has relied on Shreya Singhal..."
    Justice Chandrachud had remarked, "The High Court has noted that the statements of the witnesses show that though they (accused) used to meet at Parbhani and seek to protect the interests of the community, they were not conspiring to do anything which was a violent act"
    "But this (the reference to Shreya Singhal) gives rise to certain apprehensions...", pressed the SG.
    The bench of Justices Chandrachud and Surya Kant then passed the following order- "On a considered view of the appeal, which arose from the judgment of the special judge denying the application for bail, the division bench of the High Court, while granting bail, has adverted to the decision of this court in Union of India v. K. A. Najeeb. In the facts and circumstances of the present case, we are not inclined to disturb the order of the High Court. However, we clarify that all the observations contained in the impugned order are confined to the disposal of the appeal arising from the judgment of the special judge on the question of bail. Moreover, it was unnecessary for the High Court to advert to the decision of this Court in Shreya Singhal and the judgment of the High Court can be sustained even independent of the said observation. Subject to the aforesaid clarification, the SLP is disposed off"
    After dictating the order, Justice Chandrachud said, "It is a good judgment, the High Court has analysed it rather well"
    The SG then urged, "Shreya Singhal says that only when such a discussion or advocacy reaches the level of incitement that Article 19(2) comes in. Advocacy of ISIS is also sufficient for a criminal offence. This is the right to freedom of speech and expression- He cannot advocate something which is secessionist!"
    At this, Justice Chandrachud remarked, "That is why we have deleted that"
    Justice Surya Kant also commented, "The safest practice in bail matters is to write a short judgment. Reasoned, but short"
    The High Court in the impugned judgment recorded that the background facts leading to the appeal are: The appellant has been arraigned as accused No. 3 in RC No. (...) registered by NIA for the offences punishable under section 120B and 471 of Indian Penal Code and sections 13, 16, 18, 18B, 20, 38 and 39 of the UAPA and section 4, 5 and 6 of the Explosives Substances Act, 1908. Initially, the accused No. 3 was arrested by ATS, Kalachowki police station on 7th August 2016 in C.R. No. (...). Charge sheet was filed by ATS on 7th October, 2016. Upon transfer of investigation to NIA, the latter re-registered the crime as RC-(...) and, post further investigation, filed a supplementary charge sheet on 17th July, 2019.
    The gravamen of indictment against the accused is that accused No. 1 namely Naserbin Abubaker Yafai (Chaus) has been in contact with the members of Islamic State/Islamic State of Iraq and Levant (ISIL)/ Islamic State of Iraq and Syria/Daish, a terrorist organization, which has been banned by the Government of India vide notifcation K.A. 534(A) on 16th February, 2015. Accused No. 1 Naserbin Abubaker Yafai (Chaus) and No. 2 Mohd Shahed Khan procured material to prepare an IED. The appellant/ accused No. 3 was a co-conspirator with the co-accused. Pursuant to disclosure made by the co-accused the electric switchboard whereon the IED was soldered in the house of appellant/accused No. 3 was discovered. Likewise, the oath (baith) owing allegiance to a banned terrorist organization was recovered from the house of accused No. 3. The accused have thus been arraigned for the offences punishable under section 120B of Indian Penal Code and section 13, 16, 18, 18B, 20, 38 and 39 of UAPA and sections 4, 5 and 6 of the Explosives Act.
    On a consideration of the material arrayed against the accused, the High Court had found that, "first and foremost, the tenor of the statements of the four witnesses (...), even if taken at par, would indicate that the accused persons and those witnesses used to have discussions over the threats to Islam; real, perceived or imaginary". The High Court had observed, "Indeed, two of the witnesses have stated that possible solutions to such threats were also discussed including actions of ISIS. In the context of the accused No. 3 (appellant before the High Court), what has been attributed to him is that he seconded the views of one of the co-accused, who supported the activities of ISIS. These statements appear to be in the realm of discussion and deliberation which the accused and those witnesses had. At this juncture, there is no prima facie material to indicate that the accused No. 3 instigated the commission of offence or insurgency. Nor there is, prima facie, material to indicate that the accused No. 3 advocated violent reactions". In this context, the High Court had adverted to the aforementioned observations in the Shreya Singhal case.
    Case Title: The State Of Maharashtra v. Iqbal Ahmed

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    Tags
    Supreme CourtJustice DY ChandrachudJustice Surya KantUAPAIslamic StateShreya Singhal CaseBombay High Court
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