The Kerala High Court refused to suspend the sentence and grant bail to three persons convicted of attempting to travel to Syria to join ISIS on the ground that the nature of allegations were serious and the presumption of innocence had vanished as they were already convicted and had undergone major portion of the sentence awarded.

The Bench of Justice Alexander Thomas and Justice Sophy Thomas observed that “The purpose of punishment is to reform and to rehabilitate the criminal. It will have the effect of cleaning and purging the sin, for which they have to serve the sentence... Considering the gravity of the offence prima facie proved against the applicants/appellants, though they have undergone major portion of their sentence, we are not inclined to suspend their sentence and to release them on bail at present.”

The Bench further remarked that “Terrorism is an evil affecting the life and liberty of people. It affects the growth of the nation in all respects. In fact, no religion propagates terrorism or hatred. But, unfortunately, some fanatics or religious fundamentalists have distorted the views of religion, for spreading messages of terrorism and hatred, without realising the amount of damage it is doing to the society as well as to the country as a whole.”

In this case, the accused had attempted to join the terror outfit for indulging in violent ‘jihad’ as part of waging war against the Asiatic powers at peace with the Government of India.

The accused were convicted under Section 38 and 39 of the Unlawful Activities (Prevention) Act (UAPA Act) and Section 120B r/w Section 125 of IPC and were sentenced to undergo rigorous imprisonment for seven years and fine under each count.

The accused were never released on bail during trial and had completed more than five years in custody. The accused had prayed to suspend the sentence and release them on bail or else the appeals would become infructuous as the prosecution had failed to prove its case beyond reasonable doubt and there was every chance for them to succeed in the appeal.

Advocate K.N. Abhilash appeared for the petitioners and Deputy Solicitor General S. Manu appeared for the respondent.

The Court noted that two of the accused were intercepted by Turkish authorities when they were trying to cross over into Syria and were then deported to India. The third accused was arrested after he cancelled a ticket to leave India after learning that another accused in the same case was arrested from Mangaluru airport.

Further the Court was informed by the National Investigation Agency (NIA) that Hamza (prime accused) was one of the masterminds in teaching ISIS/Daish ideology in Kerala, indoctrinated and recruited youngsters into the proscribed terrorist organisation, besides motivating and sending them to the Islamic State.

“Innocent youth attracted by the call of terrorist organisations fall prey to violence and anti-national activities, destroying the tranquility in society, unmindful of the freedom, liberty, and safety of their fellow beings, and the integrity of the nation.” said the Court

The Court further said that while considering an application for suspension of sentence, “The nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and its social impact, are all to be looked into while considering an application for suspension of sentence and to release the accused on bail.”

Therefore, the Court said that it was not inclined to suspend their sentence as the nature of the offence alleged against the accused/applicants were very serious in nature.

Accordingly, the application was dismissed.

Cause Title- Hamza U.K. v. National Investigation Agency

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Kerala High CourtJustice Alexander ThomasJustice Sophy ThomasUnlawful Activities Prevention Act

Sanjoli N Srivastava