Islam

The word Jihad means a war or struggle of Mohammedans against non-believers- Karnataka High Court

KARNATAKA HIGH COURT

(DHARWAD BENCH)

SINGLE BENCH

( Before : R.B. Naik, J )

ASADULLA H.A. AND OTHERS — Appellant

Vs.

THE STATE OF KARNATAKA — Respondent

Criminal P. No. 7199 of 2008

Decided on : 29-08-2008

Penal Code, 1860 (IPC) – Section 120 B, Section 121, Section 465, Section 468, Section 471, Section 511
Unlawful Activities (Prevention) Act, 1967 – Section 10, Section 13, Section 3

Counsel for Appearing Parties

A.A. Savanur, in Criminal P. No. 7199/2008 and Ismail D. Jalagar, in Criminal P. No. 7204/2008, for the Appellant; P.S. Dinesh Rao, Government Advocate, for the Respondent

ORDER

R.B. Naik, J.—As the above to petitions pertain to same crime number and as the common questions of law and facts arise for my consideration, these petitions are heard together and disposed of by this common order.

2. Petitioners-1 to 4 in Criminal Petition No. 7199/2008 are Accused Nos. 3, 7, 9 & 12 respectively and Petitioners-1 to 3 in Criminal Petition No. 7204/2008 are A-1, A-5 & A-6 respectively in crime No. 14/2008 of Gokul Road Police Station, Hubli. After completion of investigation, the investigating agency has filed charge sheet against these accused and others for offences punishable u/s 120B, 121, 121A, 122, 124A, 153A, 153B, 379, 116, 465, 468, 471, 201, 511 IPC, u/s 3, 10 & 13 of the Unlawful Activities (Prevention) Act 1967 and Sections- 4 & 5 of the Explosive Substances Act 1908 and the trial in S.C. No. 49/2008 pending on the file of 1st Additional District and Sessions Judge, Dharwad, sitting at Hubli.

3. Initially, a case in crime No. 14/2008 was registered on 30.01.2008 in Hubli Gokul Road police station for offence u/s 379 IPC., against A-1 who was found in possession of a stolen motorcycle, he was detained and interrogated in the said theft case; on his personal search, two photographs were found in his possession and on verification, it was revealed that the photographs of the two persons were of the persons who arrested in an identical case for offence punishable u/s 379 IPC., on 11.01.2008 in a case registered by Honnalli police; during the course of investigation A-1 made confession statement and the confession statement so made by A-1, according to the investigating agency, revealed commission of the offences stated supra.

4. Several of the offences 124A, 153A, 153B IPC., and Sections- 3, 10 & 13 of the Unlawful Activities (Prevention) Act 1967 referred to above pertain to disturbing the sovereignty of the nation, disruption of harmony between two communities and other provisions deal with the possession of explosive and prohibited material which would also disrupt or bring enmity between two religion; immediately on recording of confession statement of A-1, a report came to be filed before the Magistrate for incorporating the above stated additional provisions and also to implicate few persons named in the confession statement of accused No. 1. As such, initially 12 accused persons came to be implicated for the aforesaid offences and later on after completion of investigation, as investigation revealed involvement of few other accused persons, charge sheet is filed as against 16 persons and out of the said accused persons, A-3, A-7, A-9 & A-12 (Petitioners in Crl.P. No. 7199/2008) and A-1, A-5 & A-6 (Petitioners in Crl.P. No. 7204/2008) are before this Court in these two criminal petitions seeking bail.

5. After recording of the statement of A-1, as the matter was of serious nature, the further investigation was taken over by the Corps of Detectives (C.O.D) and immediately after taking over of further investigation by the COD., the investigating officer recorded confession statement of A-1 on 06.02.2008 which is almost similar as the one earlier recorded by the regular police.

6. Learned Counsel for the Petitioners submitted that on the basis of the confession statement of one accused i.e., A-1 the other co-accused, cannot be implicated. No doubt, the law is so; he further submits that initially, case was registered in two police stations one at Hubli and other one at Honnalli for theft of motorcycles, nowhere it is revealed in the confession statements were made by A-1 while he was under detention in respect of the case registered for offence u/s 379 IPC; As the confession statements are generated for the first time voluntarily, they can form basis and as information for investigation if not implicate the other accused and on the basis of this information, as it was found to be inculpatory and not exculpatory in nature, the same formed basis for further investigation and the investigation proceeded on the basis of the statement made by A-1 and the recovery was made during the course of investigation, on the basis of the voluntary statement not only from A-1 but from the other Petitioners who have also made voluntary statements and also from co-accused who are not before the Court The recoveries so made will have to be taken into account at the time of dealing with bail petition to ascertain if the prosecution has made out a prima facie case for which the Petitioners/accused are charge sheeted.

7. The investigation initially proceeded on the basis of voluntary statement made by A-1, prohibitive literature which would bring disharmony amongst two factions of society, hand-granade, Gilltine sticks, electrical detonator explosives, motorcycles were recovered from the possession of A-1.

8. As regards the involvement of A-3, the investigating officer got credible information that he was attempting to collect Hydrogen Peroxide from one Ashok, the driver of Hindustan Petroleum, his statement was recorded and it is part of the record, in addition to the same, one Fiyaz Ahamed the manager of a hotel in Nippani has also made a statement to the effect that A-3 was making enquiry for the purchase of Hydrogen Peroxide, this Hydrogen Peroxide material, though not inflammable, according to the investigating agency, if it is exploded after mixing it with wheat powder and several identical other material, it would cause disaster and danger to a large extent of area as it becomes highly explosive substance. In addition to the same, detonator, dollars, C Ds are recovered on the basis of the voluntary statement of A-3 under mahazar and the same are subjected to PF.33. The said mahazar is drawn by Honnalli police and the same is made part of the charge sheet in the instant case.

9. As regards A-5, the allegation of the prosecution is that he was supplying food to the other accused as and when they were holding secrete Jihad meetings at unknown places and he was also in possession of the stolen motorcycle which was stolen by A-2 & A-3 in the case registered at Honnalli police station.

10. As regards the involvement of A-6, the material of the prosecution reveals that he was regularly attending Jihad meetings held by the accused persons, independent witnesses are examined in the said regard who have stated that A-6 besides giving shelter to other accused persons was also attending the meetings and these meetings are turned out be as ‘Jihad’ the meaning according to learned Counsel for Petitioners that “spiritual struggle within ones self against sin” and it cannot be termed as meeting held for the purposes of disruption of harmony amongst two communities or sovereignty and integrity of the nation. On verification and making reference to OXFORD’ dictionary, the word ‘Jihad’ means a war of struggle of Mohammedans against unbelievers; crusade for or against a doctrine etc. The definition of Jihad, as found in the Oxford dictionary, “spiritual struggle within ones self against sin” becomes irrelevant in the background of the Petitioners-accused having been found in possession of hand-granades, Guillotine sticks, electrical detonator explosives, motorcycles, religious inciting instigating books and the Petitioners efforts to secure Hydrogen Peroxide which is used for preparation of bombs. The word Jehad in the context will have to be read as a war or struggle of Mohammedans against non-believers.

11. As regards the involvement of A-7, the prosecuting agency has collected material to establish that he was in possession of inciting books, in addition he is also an accused in crime No. 120/2008 registered in Indoor police station and in the said case, a country made pistol is recovered. The weapon so recovered in crime No. 120/2008 of Indoor Police station, according to prosecuting agency, were earlier in possession of A-1 and the investigating agency has recorded the statements of independent witnesses to establish that A-1 was in possession of the same in his room.

12. As regards the involvement of A-9, it is stated that a hard disc of the computer has been recovered, it has been sent to FSL., examination at Hyderabad to ascertain the contents of the same, in addition to the same, a sum of Rs. 75,000/- cash was recovered from his possession for which A-9 did not have any proper explanation, besides he was also attending Jihad meetings.

13. As regards the involvement of A-12, it is the case of the prosecution that from A-12, inciting books, laptop and computer hard disc are recovered which are also sent to the FSL., Hyderabad, the prosecution contends that the hard disk contains details of making bombs.

14. The serious offences alleged against the accused Petitioners herein are Section-122 IPC., i.e., collecting arms with intention of waging a war against Government of India, Section-124A IPC, that is an action of the accused which attempts to bring into hatred or contempt or attempts to incite disaffection towards the Government established by law in India, Section-153A promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language etc., and doing acts prejudicial to maintenance of harmony, Section- 153B imputations, assertion prejudicial to national integration. Further, Section-10 of the Unlawful Activities (Prevention) Act 1967 which prohibits a person or association to be a member of an unlawful association declared unlawful by a notification and Section-13 of the said Act, which provides for punishment against the person who takes part, abets, advises or incites the commission of any unlawful activity. In addition, Section- 4 & 5 of the Explosives Substance Act 1908 are also alleged against the Petitioners-accused, few of these accused were found in possession of highly explosive substances and firearms without license.

15. As I have already held though the accused are implicated on confession statement made by A-1 during investigation voluntarily statements are made and sufficient material is collected which can also form sufficient information for investigation and during investigation sufficient material since is collected to establish prima facie case against Petitioners and the subsequent investigation which lead to the recovery of the dangerous weapons as stated above, since the material on record prima facie discloses a strong case for the offences for which they are charged, without expressing any opinion on the merits of the case, I hold that the Petitioners are not entitled for grant of bail and consequently, the petitions are liable to be dismissed.

Accordingly, both the criminal petitions are dismissed.


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