The Karnataka High Court has said that use of petrol bottles while attacking police personnel and police stations by accused persons during the Bengaluru Riots of 2020 would prima-facie constitute 'Terrorist Act' under Section 15 of Unlawful Activities (Prevention) Act, 1967.
A division bench of Justices K. Somashekar and Shivashankar Amarannavar dismissed the appeal filed by accused Ateeq Ahmed and others seeking bail in the case registered by the National Investigation Agency (NIA) following the riots incident.
The bench said ,
"The overt acts would clearly indicate the actions of the accused persons in forming a violent mob in front of the police station, attacking the police station and police personnel using lethal weapons such as, clubs, rods, usage of petrol bottles and indulging in arson indicates that entire action was done with an intention to strike terror at the public at large. The charge sheet material would also prima facie indicate presence of the appellants at the spot of incident at the time of committing offence."
The Applicants had approached the Court challenging the orders of the Special Court denying them bail.
As per the prosecution on the night of 11th August, 2020, a mob resorted to arson and created a horrifying and terror situation in the area of D.G. Halli and K.G. Halli Police station limits, after one Naveen P, nephew of R. Akhanda Srinivas Murthy, Indian National Congress M.L.A. from Pulakeshinagar had allegedly posted a comment insulting Prophet Mohammad on his Facebook account and said mob was demanding his arrest.
Advocate Mohammed Tahir, appearing for appellants contended that statement of certain witnesses found in the charge sheet filed by NIA is not corroborated by the very same witnesses who have given statements before CCB as a part of charge sheets filed against other accused persons.
Further, he said that NIA has fabricated witness statements to suit their narratives. On account of this available evidence having not been tendered to establish the active participation of appellants on the scene of the riots, there is no terrorist act attributable to the appellants.
Special Public Prosecutor P. Prasanna Kumar, contended that under Section 43D(5) UAP Act, the court will have to decide if accusations made against accused persons are based on the reading of 'Case Diary' and 'final report' and the court would refrain from looking beyond the said material. As what would suffice for arriving at a prima-facie satisfaction, he drew the attention of the court to the provisions of UAP Act and particularly, to Section 2(1)(a) which defines "assembly" and Section 2(1)(k) which defines "terrorist act" for its meaning and Section 15 of UAP Act which explains the said term.
Further he said that actions of the appellants qualifies as 'terrorist act' under Section 15(1)(a)(ii) & (iv) of UAP Act since their actions of using highly inflammable substances to cause large destruction of property reflected an 'intent to strike terror among the people or section of the people'.
The bench noted,
"Bail is the rule and jail is the exception, is the conventional idea or thinking while considering the application for grant of bail in respect of the penal offence. The exercise of general power to grant bail under UAP Act is severely restrictive in scope. The use of the words under proviso to Section 43D(5) "shall not be released" in contrast with the words found in Section 437(1) of Cr.P.C. "may be released" suggests or indicates the intention of the legislature is to take a departure from the general principle or in other words, to make the bail being an exception and jail being the rule."
"The courts are therefore burdened with the sensitive task in dealing with bail applications in UAP Act while considering the prayer for grant of bail when filed by an accused who is charge sheeted for the offences punishable under UAP Act."
It then opined "Justification" must be searched from the case diary and final report submitted before the special court. The legislature has prescribed a low "prima facie standard" as a measure of degree of satisfaction to be recorded by such a court when scrutinising the material on record for its justification. The standard can be contrasted with the standard of "strong suspicion" which is used by courts while hearing the applications for discharge.
Referring to the section 15 of the Act, the bench said,
"It would emerge from sub-section (1) of Section 15 that even if the act is "likely to strike terror", the absence of "intent to strike terror" will not by itself make invocation of Section 15 unjustified. As such, accused cannot limit his arguments to say that he or she lack the necessary intent to strike terror. In other words, accused will have to go one step further and demonstrate that his actions even if lacking any intent does not carry any likelihood of striking terror in the minds of the people. Clause (a) of sub-section (1) of Section 15 illustrates some of the means by which unity, integrity, security, economic security or sovereignty of India would be threatened or terror can be struck in people or any section of the people in India or in any foreign country."
Accordingly, the bench said the phrase 'cause or likely to cause' occurring in sub-clause (a) of sub-section (1) of Section 15 would clearly explain the "width" in which said provision operates. It gets triggered not only on the actual happening of a resultant effect of such terrorist act but also possibility or probability of having the result as enumerated under sub-clauses (i) to (iv) of clause (a) of sub-section (1) of Section 15 of UAP Act.
It then observed,
"The test for rejection of bail will be sufficiently met if the prosecution can, prima-facie, establish commission of terrorist act. For this, prosecution will have to demonstrate the acts as enumerated in clause (a) of sub-section (1) of Section 15 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 and such acts has the effect of causing or likelihood of causing any of the result as enumerated in sub-clauses (i) to (iv) of clause (a) of sub-section (1) of Section 15."
On going through the material on record against each of the accused the bench said ,
"As a part of the conspiracy that was hatched with an intention to strike terror and cause fear in the mind of public, the appellants have acted accordingly. A perusal of the report made under Section 173 Cr.P.C and the charge sheet material, this court is of the considered view that accusations against accused persons are prima-facie true and proviso to Section 43D(5) is attracted to the facts on hand."
"Proviso to Section 43D(5) of UAP Act is squarely attracted to the facts at hand namely, charge sheet material would disclose the accusations made against appellants are prima-facie to be believed as true."
Case Title: Ateeq Ahmed & others And National Investigating Agency
Case No: CRIMINAL APPEAL No.814/2022 C/W CRIMINAL APPEAL No.788/2022
Citation: 2022 LiveLaw (Kar) 306
Date of order: 19TH DAY OF JULY, 2022
Appearance: Advocate Mohammed Tahir for appellants; Special Public Prosecutor Prasanna Kumar P for respondents