The Bombay High Court has ruled that while considering a bail application for offences under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the court must assess the material presented by the investigating agency as a whole to form an opinion on whether there are reasonable grounds for believing that the accusation is “prima facie true”. At this stage, the court is not to conduct an elaborate examination of evidence or question its admissibility, and must record a finding based on broad probabilities regarding the accused’s involvement.
In the present case, the Court found that a careful analysis of the probative value of the material on record satisfied the “prima facie true” test, showing the Appellant’s involvement in the crime from its inception. Therefore, the restrictions on granting bail under Section 43D(5) of the UAPA were applicable. This ruling is based on the application of the stringent conditions for bail under Section 43D(5) of the UAPA, as interpreted by the Supreme Court in the case of NIA vs. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1].
Since the offence alleged of controversial comment made on TV debate by the political party’s spokesperson alleged, is grave and heinous in nature, and affect the very core and conscious of the society, making it vulnerable and think to live in constant fear, the High Court refused the discretion of bail in favour of the Appellant.
The Division Bench comprising Justice A.S. Gadkari and Justice Shyam C. Chandak observed that the Appellant’s instigating message, when read with witness statements, made it clear that he was upset and wanted to avenge the deceased. The Bench rejected the argument that the Appellant only intended to harm the deceased’s business, noting that the message was not drafted with that limited angle and was circulated to individuals and groups who were not necessarily customers of the deceased.
The use of specific words like “Amit Medical Prabhat Takiz Tehsil ke Samane isko batana hain ke jin logon ke bharose kamai ki unse hi dushmani ka anjam kya hota hai, is message ko zyada se zyada group or gore walo ko send kare”, indicated that the deceased was specifically selected to be targeted, unlike others who were merely asked to post apologies for similar posts, added the Bench.
The Bench found it probable that the Appellant met with another accused after sending the message, and 25 phone calls were exchanged between the Appellant and the other accused before and after the crime. Thus, the Bench emphasised that the Appellant’s absence from subsequent meetings was not sufficient to prove his innocence, as, after “igniting the anger”, the Appellant “shrewdly kept himself away” to avoid being held responsible, while remaining “quietly active behind the curtain”, as indicated by the phone calls.
Opining that conspiracy can be inferred from circumstantial evidence, and direct evidence is often difficult to produce, the Bench concluded that even independent of the extra-judicial confessions of the co-accused, the circumstances (altering the mobile number, sending the instigating message, meeting with other accused, and the volume of phone calls) showed a “meeting of minds” to hatch a criminal conspiracy, establishing a prima facie case against the Appellant.
Briefly, following a controversial comment by a political party’s ex-spokesperson on a TV debate, there was outrage in the Muslim community at Amravati, after which a meeting was called by Accused No. 7 and Accused No. 9 to discuss the issue. The deceased, Umesh Kolhe, a veterinary medical shop owner, was a member of a WhatsApp group called “Black Freedom”, who posted a message in this group supporting the ex-spokesperson.
The Appellant, Yusuf Khan, a veterinary doctor and the only Muslim member of the “Black Freedom” group, was offended by the post. He took a screenshot of the deceased’s post, but before doing so, he altered the second-last digit of the deceased’s mobile number to expose his identity. He then attached his own instigating message and forwarded it to another WhatsApp group, “Kalim Ibrahim”.
The prosecution alleges that the Appellant then met with Accused No. 5, his client, who was also angered by the deceased’s post, which initiated the criminal conspiracy to eliminate the deceased. Subsequently, other meetings were held between the co-accused, where it was decided to kill the deceased. A terrorist gang was allegedly formed under the leadership of Accused No. 7 to execute the murder and to strike terror in the public. Later, as the deceased was returning home, he was wrongfully restrained and stabbed in the neck with a knife, leading to his death.
An FIR was initially registered under IPC sections, but later, sections 16, 18, and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) were added. The investigation was transferred to the National Investigation Agency (NIA), and the Appellant was arrested.
Appearances:
Advocates Dr. Yug Mohit Chaudhry, Sharif Shaikh, Afrin Khan, Muzammil Shaikh, Ejaz Shaikh, Anush Shetty, Muskan Shaikh, Benazir Khan, and Mateen Shaikh, for the Appellant
APP Madhavi H. Mhatre, ASG Anil C. Singh, along with Advocates Chintan Shah, Aditya Thakkar, Sandeep Sadawarte, Prasanna Bhangale, and Krishnakand Deshmukh, for the Respondent
