Justice Raja Vijayaraghavan V, Justice K.V. Jayakumar, Kerala High Court
Embargo U/S.43D(5) UAPA Won’t Stand In Way of Granting Bail Under Article 21: Kerala High Court Grants Bail To Alleged ISIS Module Head On Ground Of Parity
|The appeal before the Kerala High Court was preferred against the order of the Special Court for the Trial of NIA Case, dismissing the bail application filed by the appellant-accused.
The Kerala High Court has granted bail to a man accused of establishing an ISIS module in the State on the grounds of parity. The High Court took note of the long incarceration period and further observed that the embargo provided under Section 43D(5) of the UA(P) Act would not stand in the way of the constitutional court in granting bail to an accused under Article 21 of the Constitution.
The appeal before the High Court was preferred against the order of the Special Court for the Trial of NIA Case, dismissing the bail application filed by the appellant/second accused.
The Division Bench of Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar said, “The embargo provided under Section 43D(5) of the UA(P) Act would not stand in the way of the constitutional court in granting bail to an accused under Article 21 of the Constitution of India. In the instant case, even though the final report is filed, further investigation is going on. Voice recordings of the accused were taken and sent for analysis. As per the charge sheet, the prosecution has cited 147 witnesses, 161 documents and 55 material objects were produced to substantiate the charge. Therefore, there was no possibility of the completion of the trial in the near future, considering the large number of witnesses and voluminous documents.”
Advocate E.A.Haris represented the Appellant while Deputy Solicitor General of India O.M. Shalina represented the Respondent.
Factual Background
The Central Government had received credible information that an ISIS/IS-KP Module was working secretly to commit acts prejudicial to the sovereignty and integrity of India by conspiring to target certain prominent members of society and religious places of the other communities to commit terrorist acts and to create communal disharmony in the society. As part of the larger conspiracy to further the activities of the ISIS/IS-KP, a proscribed terrorist organization, the members of the module identified gullible Muslim youths and radicalized them through encrypted communication channels to join ISIS/IS-KP. To raise funds for furthering the activities of ISIS/IS-KP, they committed criminal/illegal activities.
A case was registered under the provisions of the IPC and Unlawful Activities (Prevention) Act at NIA Police Station, Kochi, against Mathilakath Kodayıl Ashif @ Ashif (A-1), Seyid Nabeel Ahammed @ Nabeel (A-2), Shiyas T.S. (A-3), Rayees P.A. (A-4) and others. The specific charge alleged against the appellant was that he established an ISIS module in Kerala along with the other accused persons and committed crimes to raise funds for pro-ISIS activities. It was alleged that the accused persons conducted a recce of Hindu Temples and prominent persons of other communities for targeting as well as for looting. The appellant knowingly and willingly propagated ISIS ideology through social media, secret communication platforms and in person, thereby allegedly committing offences punishable under Sections 120B of the IPC and Sections 20, 38 & 39 of the Unlawful Activities (Prevention) Act, 1967.
Reasoning
The Bench noted that the appellant was claiming the relief of bail on the basis of parity as the first accused was granted bail. Addressing this aspect, the Bench said, “We are of the considered view that, as a general rule, an accused is entitled to bail if a co-accused, who is similarly placed as that of the accused to whom bail has already been granted. The principle of parity ordinarily favours the grant of bail, in such circumstances. Parity is a rule of prudence commonly accepted and practiced in Indian Courts. However, this rule is subject to certain exceptions. If it is shown that the earlier grant of bail to the co-accused was based on erroneous considerations or a misconception of facts, or ignorance of the provisions of a statute or rule, the denial of bail to the other accused on the ground of parity may be legally justified.”
Considering that the charge against the first and second accused was exactly similar, the Bench found no reason to reject the bail of the appellant based on parity.
Dealing with the aspect of embargo contained in Section 43-D(5) of the UA(P) Act and whether it would stand in the way of granting bail to the appellant, the Bench referred to the judgment in Union of India v. K.A Najeeb (2021) wherein it has been held that the statutory restrictions like 43-D(5) of UA(P) Act would not oust the ability of the constitutional Court to grant bail on the ground of violation of Part III of the Constitution, while holding that the accused has the right to a speedy trial and if the same is not possible, Courts are obligated to enlarge him on bail.
It was further noticed that the appellant has been in jail for about one year and ten months. “Considering the prolonged incarceration and the fact that the 1st accused, who stands on the same footing as the appellant, has already been released on bail, we are of the view that the appellant/2nd accused should also be released on bail, subject to stringent conditions”, it held.
Thus, the Bench allowed the appeal and ordered the appellant to be released on bail on executing a bond for a sum of Rs 1 lakh.
Cause Title: Seyid Nabeel Ahammed v. Union Of India (Neutral Citation: 2025:KER:54793)
Appearance
Appellant: Advocates E.A.Haris, M.A.Ahammad Saheer, Muhammed Yasil, Aagi Johny
Respondent: Deputy Solicitor General of India O.M. Shalina