While firmly rejecting a bail petition that had been filed by a 25-year-old man booked under the Unlawful Activities Prevention Act (UAPA), the Karnataka High Court in a most learned, laudable, landmark, logical and latest judgment titled Arafath Ali vs NIA in Criminal Appeal No. 704 of 2024 and cited in NC: 2024:KHC:39825-DB that was reserved on 25.07.2024 and pronounced as recently as on September 25, 2024 minced just no words to hold unequivocally that national interest takes precedence over personal liberty of individual. It must be mentioned here that a Division Bench comprising of Hon’ble Mr Justice Sreenivas Harish Kumar and Hon’ble Mr Justice JM Khazi rejected the bail plea that had been filed by Arafath Ali who had been accused of having stabbed another man in August 2022 after being influenced by the ideology of Islamic State of Iraq and Syria (ISIS). The Division Bench clearly mandated stating that, “What Article 21 states is that personal liberty of a person cannot be curtailed without due process of law. Its meaning has been expanded, and no doubt a greater amount of sanctity is attached to it. But whenever national interest is involved or a challenge is posed to unity, sovereignty and integrity of the nation, individual liberty recedes to background. Individual or personal liberty must yield to national interest. Individual is not greater than the nation where he has taken birth.” This alone explains why my very best friend Sageer Khan said to me in Mackronia locality in Sagar in Madhya Pradesh in 1993 that, “Nation stands tallest and we all have to be below nation and must be always ready to shed our life for the nation. I fear internal enemies more than external enemies because they are not visible and so they should never be pardoned who plot against India and mercy petition for terrorists must be abolished. I am most proud to be an Indian and Muslims in India enjoy “maximum liberty” all over the world but am most upset that polygamy was abolished for Hindus in 1955 but for Muslims it is still continuing in 1993 due to which film actor Dharmendra had to convert to Islam to marry Hema Malini in 1975. Such baseless discrimination between Hindus and Muslims must be abolished but not just Centre even the Supreme Court also does absolutely just nothing on it which I find most disgusting indeed! I can never in my life accept partition of 1947 perpetrated by “rascal and rogue Britishers” with their agents in undivided India conniving hands in glove with them who adopted “Divide and Rule” policy and will always favour integration of India as it existed prior to 14 August 1947 and am sure that one day India’s boundary will touch Iran. Pakistan is brain child of two most dangerous countries in the world that is UK and USA who add “United” before their name just like UN which is again their brainchild but always have favoured division of other countries and undoubtedly hate Hindus most as maximum freedom fighters were Hindus which I concede and that is why always spare no opportunity to hurt Hindus where it matters most even though Hindus are most tolerant in the world. Khalistanis said Sageer Khan also get maximum support from USA, UK and Christian countries allies like Canada and Australia but yet we never retaliate by encouraging secession in USA and UK and their allies.” Even none other than the former Supreme Court Judge Markandey Katju has on record himself displayed guts in publicly slamming Pakistan and Bangladesh as “fake countries” and predicted that they would one day merge into India just like my very best friend Sageer Khan wanted!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sreenivas Harish Kumar for a Division Bench of the Karnataka High Court comprising of himself and Hon’ble Mr Justice JM Khazi sets the ball in motion by first and foremost putting forth in para 1 that, “Accused No.10 in Spl. C.C. 706/2023 on the file of XLIX Additional City Civil and Sessions Judge (Special Court for Trial of NIA Cases), (CCH-50), Bengaluru, referred to as ‘NIA Court’ for short, has preferred this appeal challenging the order dated 02.02.2024 of rejecting his application for bail.”
To put things in perspective, the Division Bench envisages in para 2 that, “In connection with stabbing a youth by name Prem Singh at Shivamogga City, an FIR was registered at Doddapete police station on 15.08.2022. During investigation of the said case, the role of a person by name Shariq s/o Abdul Majeed, resident of Thirthahalli, surfaced. Two other persons namely Maaz and Yaseen were said to be the associates of Shariq. The investigating agency secured the presence of Maaz and Yaseen and their interrogation revealed conspiracy to commit terrorist activities to disturb unity, security and sovereignty of India. Coming to know of this illegal activity the investigating officer in FIR No. 334/2022 gave a report in writing to Shivamogga Rural Police Station where FIR No. 325/2022 was registered on 19.09.2022 for the offences under sections 18, 38 and 39 of Unlawful Activities (Prevention) Act, section 2 of Prevention of Insults to National Honours Act, 1971 against accused Nos. 1 to 3. Later on the offences under sections 4 and 5 of the Explosive Substances Act were also invoked. Considering the gravity of the offence, the Government of India passed an order on 14.11.2022 directing investigation to be undertaken by the National Investigation Agency (’NIA’) which having taken over investigation invoked the offences under sections 120B, 121 and 121A read with section 34 of IPC along with the offences for which already FIR was registered. During investigation the role of the appellant, i.e., accused No.10 also surfaced. After completion of investigation the NIA filed final report against accused 2 and 3 on 16.03.2023. Thereafter supplementary report was filed against accused Nos. 1 and 4 to 9 on 30.06.2023. By that time accused No.10 was not arrested because he was in abroad. He was arrested on 14.09.2023 and permission for further investigation was obtained. Second supplementary charge sheet was filed against the appellant-accused No.10 for the offences under sections 120B, 121A, 153A and 204 of IPC and sections 13, 17, 18, 18B, 20, 38, 39 and 40 of UA(P)A. The appellant applied for bail before the Special Court which by its order dated 02.02.2024 dismissed his application and hence this appeal.”
Quite significantly, the Division Bench then lays bare in para 3 observing that, “This is an appeal under section 21(4) of NIA Act, so what is required to be examined is whether the NIA Court has committed any error in rejecting the application for bail. Following the judgment of the Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah Watali [(2019) 5 SCC 1], the NIA Court examined the materials before it and held that there were materials indicating active participation of accused No.10 and since those materials would appear to be prima facie true, in view of bar contained in section 43D (5), bail could not be granted. To fortify its conclusions, the NIA Court has referred to the statement of LW-54 who has stated about the role of accused No.10 in radicalizing the youth of his locality, and the supplementary charge sheet which incriminated accused Nos.2 and 10 and an online handler colonel for making attempts to radicalize the youth to achieving their goal of establishment of caliphate in India.”
Most significantly, what constitutes the cornerstone of this notable judgment is then encapsulated in para 9 postulating that, “As regards applicability of Article 21 of the Constitution of India, the Hon’ble Supreme Court has made it clear in many decisions that a balance has to be struck between individual liberty and the societal interest. It may not be inappropriate to state that Article 21 concerns with liberty of an individual. What Article 21 states is that personal liberty of a person cannot be curtailed without due process of law. Its meaning has been expanded, and no doubt a greater amount of sanctity is attached to it. But whenever national interest is involved or a challenge is posed to unity, sovereignty and integrity of the nation, individual liberty recedes to background. Individual or personal interest must yield to national interest. Individual is not greater than the Nation where he has taken birth. An accused can enforce liberty under Article 21 if he is arrested without due process of law. If criminal action is found to be in accordance with due procedure established by law, an application for bail has to be decided by applying law relating to bail, not by applying Article 21.”
It is worth noting that the Bench notes in para 12 that, “In Vernon (supra) bail was granted, but decision to grant bail was taken on factual background and therefore the appellant cannot take its benefit. The judgment of Kerala High Court in Ashraf and Others vs Union of India [(2024 SCC Online Ker 3234], another judgment cited by Sri Balakrishnan, decision to grant bail was taken on facts therein. Conversely the observation of the Hon’ble Supreme Court in Barakathullah are aptly applicable here and hence para 16 of the judgment is extracted here.
“16. As transpiring from the material on record, the PFI was registered under the Societies Registration Act, having an organizational set up as contained in its constitution. All the respondents-accused were the members or office bearers of the said organization at the relevant time. As alleged in the charge sheet, though the PFI was projecting itself as an organization fighting for the rights of minorities, Dalits and marginalized communities, it was pursuing a covert agenda to radicalize particular section of the society and to work towards undermining the concept of democracy and integrity of India. The investigation disclosed that the activities and undeclared objectives of PFI had strong communal and anti-national agenda to establish an Islamic rule in India by radicalization of Muslims and communalization of issues. After recruitment as members of PFI, they were motivated towards violent terrorist activities by providing training through beginners course and advanced training courses. During the training courses, physical education classes were conducted in which members were taught to attack, assault, maim and murder with bare hands. The training was also given as to how to use weapons like knives and swords and how to hurl bombs. It appears that within few days of the arrest of the respondents on 22.09.2022, the PFI was declared as an “unlawful association” and was banned by the Government of India under the UAPA. We need not elaborate on the allegations made by the protected/listed witnesses stating the role and involvement of each of the respondents, who were either members or the office bearers of the PFI. Suffice it to say that, there is sufficient material in the form of statements of witnesses and other incriminating evidence in the form of digital devices, books, photographs etc. collected during the course of investigation and relied upon by the appellant as recorded in the charge sheet, to form an opinion that there are reasonable grounds for believing that the accusations against the respondents-accused are prima facie true.”
Finally, the Division Bench then concludes by holding in para 13 that, “Therefore the conclusion is that the NIA court has not erred in refusing bail to the appellant. In this view appeal is devoid of merits and it is dismissed.”
In conclusion, it is definitely a big blow to the appellant as his bail plea has been dismissed. But the appellant has still the option to appeal before the Apex Court along with his defence as stated in para 4 of this notable judgment that, “Sri S. Balakrishnan, learned counsel for the appellant, assails the reasonings given by the NIA Court as totally unfounded. He has argued that accused No.10 was not in picture at all in the charge sheet filed on 16.03.2023 and also in the supplementary charge sheet dated 30.06.2023. The appellant was arrested on 14.09.2023, and as the NIA was unable to complete investigation against the appellant within 90 days extension of time was sought and further investigation was undertaken. There was no recovery from the appellant and even his voluntary statement was not recorded. There is nothing on record indicating the manner of participation of the appellant in the alleged conspiracy. The investigation does not reveal that the appellant is a member of any banned organization. No witness has given statement against the appellant. The prosecution heavily relies on statements of accomplices, which are inadmissible. The allegations of receiving and graffiti are against other accused.” The defence taken by the appellant has definitely failed to cut ice with the Division Bench of the Karnataka High Court! But he still has the option to fight it out in the Apex Court and prove his innocence! We must keep our fingers crossed as of now on what will unfold in the top court!
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