The Gujarat High Court on Friday rejected the bail application of a person who was alleged to be advocating ISIS ideology through various social media platforms. The bail was sought under Section 43D of the Unlawful Activities (Prevention) Act, 1967.
The Single Bench comprising Justice Vipul M. Pancholi while rejecting bail said that,
"There is ample material in the investigation papers against the present applicant, from which, it can be prima facie said that the applicant has committed the alleged offences and, therefore, the prosecution has made out a primafacie case against the applicant."
The application was filed under Section 439 of the Code of Criminal Procedure Code for bail in connection with FIR registered ATS Police station, Ahmedabad for offences under Sections 13, 17, 18, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 and under Sections 120(B), 121(A) and 125 of the Indian Penal Code.
It was alleged that the applicant was discussing, advocating, disseminating ISIS ideology on social media or sharing social media links that supported ISIS ideology and talking about it to a few of his friends which were found out through human and technical resources of the ATS.
It was also alleged that the applicant intercepted through Whatsapp about his desire to buy a pistol, if available at a reasonable price, about the possible generation of the fund through smuggling of cigarettes, gold or old cars.
The counsel for the applicant contended that the court can exercise discretion as envisaged on Section 43D of the Unlawful Activities (Prevention) Act for enlarging the applicant on bail.
The court, in this case, relied on the ratio laid down by the apex court in Shreya Singhal v. Union of India where it was held that the discussion and advocacy of any idea, philosophy per se cannot constitute an offence and to ascertain whether such discussion/advocacy has assumed the nature of incitement, the court is required to apply "the clear and Present Danger Tests".
Further, the court also looked into Section 43D of the Unlawful Activities (Prevention) Act, wherein Section 43D(5) says that,
" 43D(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."
After going through the material placed on record, the investigation papers and Whatsapp chats which were a part of charge-sheet papers, the court said,
"From the reports/chargesheet papers filed against the applicant, this Court is of the opinion that there are reasonable grounds for believing that the accusation against the applicant is prima facie true and, therefore, looking to the proviso contained in the applicant cannot aforesaid be enlarged subsection, on bail the pending trial."
The court remarked that the contention raised by the counsel appearing for the applicant that the ingredients of the alleged offences are not made out, cannot be believed looking to the material available in the investigation papers.
The court also clarified that there was no delay in commencing the trial as alleged by the counsel for the applicant. And also that the delay in commencing the trial cannot be attributed to the State or to the concerned trial court.
While dismissing the application, the court said,
"This Court is of the view that the respondent State has made out a primafacie case against the applicant. Serious allegations are levelled against the applicant and there is sufficient material against the applicant in the investigation papers and, therefore, as per the provisions contained in Section 43D(5), the applicant cannot be enlarged on bail. This Court has also considered the punishment prescribed for the alleged offences and the respondent State has shown apprehension that if the applicant is enlarged on bail, there are all chances that he will tamper with the evidence and would not be available at the time of trial."
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