Dismissed

Sri Abdul Khadar Jilani v. State by National

Karnataka HC16 Dec 2024CRL.A/313/2024

Case brief

AI extract

What is this about?

Appeal seeking bail by an NIA-case accused alleged to have recruited a recce operative and driven assailants in the murder of Harsha, charged under UAP Act Sections 16, 18, 18B, 20 and IPC offences. Citing trial-stage witness evidence and phone records, the High Court held Section 43D barred bail and dismissed the appeal.

What the court decided

AI extract

Sri Abdul Khadar Jilani Vs State by National — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:52095-DB CRL.A No.313/2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF DECEMBER, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO.313/2024 (NIA)

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BETWEEN:

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SRI. ABDUL KHADAR JILANI AGED ABOUT 27 YEARS R/AT BYPASS ROAD CAPITAL COLONY ROAD 4^TH CROSS, WADI-E-HUDA 2^ND STAGE, SHIVAMOGGA KARNATAKA – 577 201 … APPELLANT

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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(BY SRI. PRAVEEN S, ADVOCATE) AND:

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STATE BY NATIONAL INVESTIGATION AGENCY BENGALURU.

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REPRESENTED BY HCGP BENGALURU – 560 001. … RESPONDENT

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(BY SRI. SACHIN C, ADVOCATE FOR SRI. P. PRASANNA KUMAR, SPL. PP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 21 OF THE NIA ACT, 2008 READ WITH SECTION 439 OF CR.PC PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 01.04.2023 IN SPL.C.C.NO.2000/2022, TO GRANT BAIL TO THE APPELLANT/ACCUSED NO.6 AND DIRECT THE JAIL AUTHORITIES TO RELEASE THE APPELLANT/ACCUSED NO.6 ON BAIL IN SPL.C.C.NO.2000/2022 ON THE FILE OF THE XLIX

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ADDL.CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) (CCH-50) BENGALURU FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120B, 153A, 302 R/W 34 OF IPC AND SECTIONS 16, 18, 18B AND 20 OF UA(P) ACT.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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( PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL )

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JUDGMENT AND ORDERS ON I.A.No.1/2024

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Challenging the dismissal of his bail application, accused No.6 in Spl.C.C.No.2000/2022 on the file of 49^th Addl. City Civil and Sessions Judge, Bengaluru (Spl. Court for trial of NIA cases) has preferred this appeal.

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Appellant along with accused Nos.1 to 5 and 7 to 10 is facing trial in Spl.C.C.No.2000/2022 for the charges punishable under Sections 120B, 153A, 302 read with Section 34 of the Indian Penal Code, 1860 and Sections 16, 18, 18B and 20 of the Unlawful Activities (Prevention) Act, 1967 (for short, 'UAP Act'), on the basis of the charge sheet filed by respondent i.e. National Investigation Agency (NIA).

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The case of the prosecution is as follows:

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Victim Harsha @ Hindu Harsha was an active member of

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Bajrang Dal and was involved in cow protection activities. For that reason, Muslim boys had developed hatredness against him. Harsha was suspecting life threat from Muslim boys of MKK Road, Muslim youths of K.R.Puram Road, RML Nagara, Clarkepete. Accused Nos.1 to 8 developed hatred towards Hindus on the issue of CAA-NRC, Hijab controversy and cow preservation activities of Bajrang Dal. Therefore, they conspired to strike terror and create disharmony amongst the Hindus in Shivamogga city. In furtherance of such conspiracy, they started recceing prominent Hindu leaders of Shivamogga with an intention to commit their murder and strike terror in the minds of Hindus. In the execution of such acts, accused Nos.1 to 8 formed themselves into a terrorist gang to commit murder of Harsha, to create terror amongst Hindus in Shivamogga. Accused Nos.1 and 3 to 7 recruited accused No.8 to recce Harsha. Accused Nos.1 to 5 were put on mission of murdering Harsha. On 20.02.2022 accused No.8 recced the movements of Harsha and informed accused No.6 who in-turn informed accused No.7. To achieve the mission of murder accused Nos.1 to 7 procured machetes from CW-55 to kill

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Harsha. Appellant/accused No.6 took accused Nos.1 to 5, based on the information furnished by accused No.8, near Kamat petrol bunk, NT Road, Bharati Colony, Shivamogga. Accused Nos.1 to 3 got down from the car, chased and assaulted Harsha with machetes. When he was running to escape, accused Nos.5 and 6 waylaid him, assaulted him, done him to death and escaped in the car of accused No.6.

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Appellant was arrested on 23.02.2022. The Trial Court, by the impugned order has rejected his application on the ground that there are sufficient grounds to believe that he has committed the offences alleged against him. The Trial Court further held that in view of such material against him, regarding his involvement in the offences punishable under Sections 16, 18, 18B and 20 of UAP Act, Section 43D of the said UAP Act bars granting of bail to him. He has challenged the said order on the above appeal under Section 21 of the National Investigation Agency Act, 2008 (for short 'NIA Act').

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Submission of Sri.Praveen S., learned counsel for the appellant:

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The appellant was not the actual assailant. The acts alleged against him are not covered under the term of

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'terrorist act' as defined under Section 15 of the UAP Act. The deceased had many enemies for being involved in Bajrang Dal activities. Someone who had hatred against him might have murdered him. The appellant/accused No.6 is a car dealer. He had purchased the car from Chattisgarh and much before the incident, had sold the said car to accused Nos.9 and 10 who are also facing charges and were granted bail. Accused No.10 being the father of appellant, phone conversations between them is natural. The other phone calls mentioned in the charge sheet were not proximate to the time of incident. The appellant has dependent parents, wife and a child. There is no prima facie material to hold that appellant has committed the offences punishable under Sections 120B, 153A, 302 read with Section 34 of the IPC and Sections 16, 18, 18B and 20 of the UAP Act. The Trial Court, without considering the same has rejected the application. Therefore, same needs to be set aside.

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In support of his submissions, he relies on the following judgments:

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(i) Thwaha Fasal Vs. Union of India¹

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(ii) Buhari @ Kichan Buhari Vs. State rep. by the Addl. Deputy Superintendent of Police, Madurai²

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1 Crl.A.No.1302/21 c/w Crl.A.No.1303/21 dt.28.10.21 (SC)

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2 Crl.M.P.No.19676/23 in Crl.A.SR.No.52810/2023 dt.7.2.24 (Madras HC)

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NC: 2024:KHC:52095-DB CRL.A No.313/2024

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(iii) Faizal Hasamali Mirza @ Kasib Vs. The State of Maharashtra and another³

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(iv) Farhan Shaikh Vs. State (NIA)⁴

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(v) NIA through its Chief Investigating Officer, Jammu Vs. 3^rd Addl. Sessions Judge, District Court, Jammu⁵ .

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Per contra, Sri.Sachin C, learned counsel for Sri.P.Prasanna Kumar, learned Special Public Prosecutor submits that there is sufficient material in the charge sheet to show that appellant was involved in the offences alleged against him with the other accused. The evidence on record sufficiently shows that appellant recruited accused No.8 to recce the deceased and inform him. The materials on record

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show that appellant himself took accused Nos.1 to 5 / assailants in his car and after the incident, he took them back. The charge sheet records show that soon before and after the assault, accused No.8 called appellant/accused No.6 ten times spanning over a period of 842 seconds between 8.57 p.m. and 9.19 p.m. on the date of incident. Some of the charge sheet witnesses have already been examined and they have deposed about the involvement of the appellant. Further, there is material to show that the witnesses are being intimidated by

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3 I.A.No.2375/22 in Crl.A. No.11931/22 dt.14.9.23 (Bombay HC)

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4 AIR Online 2019 Del 1156 (Delhi HC)

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5 Crl.A(D) No.46/2022 dt. 13.12.22 (Jammu and Kashmir HC)

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the accused and FIR is already registered for that. Therefore, it is unsafe to grant bail to the accused. As accused Nos.9 and 10 were charge sheeted only for offence under Section 212 of IPC, parity principal is not applicable. PWs-19, 21, 22 and 28 have identified the appellant in their evidence before the Trial Court. Considering the gravity of the offence and the material on record, it is not a fit case to grant bail. The bail application of accused No.8 who is facing the same allegations and who was recruited by the appellant in execution of conspiracy, was rejected. Crl.A.No.90/2023 filed by him against the said order has been dismissed by this Court on 26.06.2023. He submits that the Trial Court, on proper appreciation of the material on record and on considering the relevant law has dismissed the bail application. The same does not warrant interference of this Court.

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In support of his submission, he placed reliance on

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the following judgments of the Hon'ble Supreme Court:-

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i. Union of India Vs. Abdul Razaak and another⁶ ii. Arup Bhuyan Vs. State of Assam and another⁷

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6 2024 SCC Online Mad 6189

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7 (2023) 8 SCC 745

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On considering the submissions of both side and material on record, the point that arises for the determination

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of this Court is "Whether the impugned order of rejection of bail is sustainable?"

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ANALYSIS

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The allegations against the accused is that, with an intention to promote disharmony in India and question the integrity and sovereignty of India in the background of Citizenship Amendment Act, NRC, Hijab issues and cow slaughtering, accused forming a terrorist gang conspired to strike terror in Shivamogga. As part of such conspiracy, they conspired to recce prominent Hindu leaders and murder them to strike terror in the minds of Hindus. In the execution of such conspiracy, the appellant recruited accused No.8 to keep a tab on the movements of Harsha, prominent Hindu community leader and Bajrang Dal activist. Further, the accused procured machetes from CW-55. Accused No.8 recced Harsha and went on passing information to accused No.6 i.e. appellant about the location of Harsha. Appellant took accused Nos.1 to 5 in his car. When Harsha was near Kamat petrol bunk, on sighting him, accused Nos.1 to 3 alighted from the car, chased him and when he tried to escape, they stopped and assaulted him and

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committed his murder. Then the appellant facilitated accused Nos.1 to 5 to escape in his car. Appellant was harbored by accused No.10 / his father and accused No.9 harbored accused Nos.1, 3 and 5.

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During the course of arguments, learned counsel for the appellant himself conceded that appellant had purchased car bearing No.CG-13-C-4496. But, according to him that was sold by him much before the incident. At this stage, there is no material to show that he had parted with the said car as contended by him. Statement of CW-41 shows that he has stated before the Investigating Officer that he had sighted the appellant at the crime scene at the time of incident and he identified the appellant in test identification parade. Statement of CW-55 is to the effect that he sighted accused Nos.1 to 5 when they had come to purchase machetes from his shop.

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CW-70 is examined as PW-28 before the Trial Court. PW-28, an employee in Bharat petrol bunk has deposed that on the day of the incident at 7.00 p.m. appellant came to the said petrol bunk and got fuel filled to the said car. He has identified the appellant during the course of the evidence as the person who had come in the car. He has further deposed that

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appellant and accused No.8 were in the car and they swapped the driving seat and other seat. PW-21 /CW-42 was sighted as eye witness to the incident. He has deposed before the Trial Court. He has identified accused Nos.1 to 5 as actual assailants. Further, he has also identified appellant as driver of the car which was used by accused Nos.1 to 5 as assailants.

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PW-19/CW-71 speaks about he selling car bearing registration number CG-13-C-4496 to accused No.10, the father of the appellant. The material on record shows that there were frequent phone calls between the appellant and accused No.8 soon before and after the incident. The phone seized from the appellant contained the photographs of the victim after the assault. Therefore, at this stage there are reasonable grounds to believe that the appellant was the member of the gang which intended to strike terror, recruited accused No.8 to recce Harsha, had conspired with accused Nos.1 to 5 to commit murder of Harsha and facilitated them to execute their mission, thereby committed offences punishable under Sections 16, 18, 18B and 20 of UAP Act. In such case, proviso to Section 43D of the UAP Act bars granting of bail.

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Reading of the judgment in Thwaha Fasal's case referred to supra shows that in the said case it was found that there was no material for the appellants therein being the members of the terrorist organization or supporting such organization. The Supreme Court clearly held that there were no allegations against those appellants of committing terrorist act. Whereas in the present case there are allegations of committing terrorist act against the appellant/accused No.6. Therefore, that judgment is not applicable to the facts of the present case. The bail application of accused No.8 was rejected by the Trial Court and the same is confirmed by this Court in Crl.A.No.90/2023 on 26.06.2023. In fact, as per the charge sheet records, the appellant had employed accused No.8 only to recce the victim, whereas the allegations as per the charge sheet are that the appellant was the mastermind of the entire crime and the execution of the same. The allegations against him are graver in degree than accused No.8. Therefore, on that ground also the appeal deserves no merit. So far as accused Nos.9 and 10, no provisions of UAP Act or 120B IPC were invoked against them. They were charge sheeted only for harboring some of the accused. Therefore, parity principle is not applicable.

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