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Mehid Masroor Biswas v/s The State of Karnataka, By Gangammanagudi Police Station (by CCB), Represented by SPP

    Criminal Petition No. 4039 of 2016

    Decided On, 05 January 2017

    At, High Court of Karnataka


    For the Petitioner: S. Balakrishnan, Advocate. For the Respondent: P.M. Nawaz, SPP along with K. Nageshwarappa, HCGP.

Judgment Text

(Prayer: This Criminal Petition is filed under Section 439 of the Code of Criminal Procedure praying to enlarge the petitioner on bail in Cr No.218 of 2014 (Spl. CC No.272 of 2015) of Gangammana Gudi Police Station, Bangalore for the offence punishable under Sections 121, 124A, 125, 153A and 505 of the Indian Penal Code and Section 13(1)(b), 18B, 39 of Unlawful Activities (Prevention) Act, and Section 66F of Information Technology, Act.)

1. Case has been registered by Gangammana Gudi Police Station of Yeswanthpura Sub-Division, Bangalore City against this petitioner in Crime No.218 of 2014 for the offences punishable under Section 66(F) of Information Technology Act, 2000; under Section 125 of the Indian Penal Code; and under Sections 18, 13, 39 of Unlawful Activities (Prevention) Act, 1967.

2. The petitioner was arrested on 14th December 2014 and is in judicial custody since then. After completion of investigation final report has been filed on 1st June 2015 for the offence punishable under Section 13(1)(b), 18B, 3

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of Unlawful Activities (Prevention) Act, 1967. Now, the case is registered in Special CC No.272 of 2015 pending on the file of XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) at Bangalore.3. The petitioner is a B.Tech graduate in the field of Electronic Engineering and was working in the ITC food division, R & D Centre, Peenya, Bangalore City. He hails from West Bengal and is said to be a pious Sunni set of Islam. On an information received on 12th December 2014 at around 11.00 am, Gangammana Gudi police have registered a case. The information was that a person from Bangalore was the brain behind a twitter handle "@shamiwitness" which was sympathetic to the cause of Islamic State of Iraq and Levant (ISIL) also known as Islamic State of Iraq and Syria (ISIS) and was working towards motivating and eulogizing the fighters.4. The learned counsel for the petitioner, takes the ground that ISIL/ISIS has been banned by Government of India with effect from 16th February 2015, whereas, the petitioner was arrested for the said offence on 14th December 2014, that is to say much before the activities of ISIL/ISIS was banned and hence, it cannot be termed as an offence. On this ground he submitted that bail is to be extended to the petitioner. He submitted that the case of the prosecution that the petitioner involved in the offence to wage war against the State, cannot be accepted. Waging war against the State or the Society could be attributed against fleet of persons who are working with weapons against the State. Such materials are not available with prosecution. He submitted that the petitioner is a law- abiding citizen and is also an Engineering graduate and under these circumstances, he has to be extended the benefit of bail.5. Further, he submitted that the case of the prosecution that the petitioner successfully masked his identity most of times and tweeted to promote and support the claim of the terrorist organization ISIL/ISIS from January 2013 until he was exposed by Chanel-4 of Britain on 12th December 2014; he sent thousands of messages, posted pictures, photos and videos glorifying the Islamic Caliphate and implement Sharia by overthrowing legitimate rulers of various countries, particularly the countries of Iraq, Syria and neighbouring countries, has no materials and there is no basis for it.6. It is alleged by the prosecution that this petitioner has committed offence under Section 66A, 66B, 66C, 66D, 66E whereas the Cyber terrorism is defined under Section 66F and the materials collected on behalf of the prosecution do not satisfy any of the provisions/offences. He submitted that in similar circumstances, in a reported judgment in CDJ 2015 SC 256, the Hon'ble Supreme Court struck Section 66A of the Information Technology Act in its entirety being violation of Article 19(1)(a) of the Constitution and not saved under Article 19(2) of the Constitution. He further submitted that the allegation made against the petitioner does not satisfy the Cyber terrorism and the petitioner has not used any cyber weapons like Radio Frequency, electromagnetic bomb or computer viruses, etc. There are no allegations as to the fact that the petitioner has sent viruses and delivered to any computer, or he having hacked into any computer, password protected the information system and then deleted all data. There are also no allegations that on account of him, access to any person to computers is denied or he penetrated or hacked into computer resource. Urging all these grounds, the learned counsel submitted to enlarge the petitioner on bail.7. On the other hand, the prosecution files statement of objections. It is submitted that ISIL/ISIS is a banned organization listed in the schedule to the United Nations Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007 made under Section 2 of the United Nations (Security Council) Act, 1947 amended from time to time. It is submitted that the Government of India has officially banned this terror group under the Unlawful Activities (Prevention) Act and a Notification was also issued to that effect by the Ministry of Home Affairs.8. It is alleged that this petitioner's twitter handle "@shamiwitness" was one of the popular handles for ISIS sympathesizers. By using "@shamiwitness" twitter handle the accused spoke to British Jihadis regularly before they left to join ISIS and after they arrived, and if they died, he praised them as 'martyrs'. He used to update from ISIS frontlines and had constant interactions with the faces of ISIS. Thousands of updates were being posted to the account every month usually from his mobile phone and his fixed-line broadband connection. He had twitted about five times about the execution of US aid worker Peter Kassig. He also wrote about Iftikhar Jaman a British Jihadist from Portsmouth killed fighting for Islamic State that, "you bros (brothers) talked the talk, walked the walk". By doing so, he was able to incite his followers on twitter to support the activities of ISIL/ISIS in its goal towards establishing Islamic State.9. It is also submitted that the accused was using softwares like VPN and Ghost IP to successfully mask his IP address and his identity; and to delete incriminating materials on a regular basis he has used 'C Cleaner' and other softwares. He had regularly browsed the internet pages where ISIS posted messages in Arabic on the website 'just paste' and he would immediately translate them to English by using Google Translate Software and tweet them. By giving these elaborate materials, the learned State Public Prosecutor submits that these are the instances which will pose threat to the Nation and the society and he submitted that under the circumstances the petition is to be dismissed. He has also submitted that since the prosecution has placed sufficient materials and the Trial Court has given its finding that if the offences alleged against the petitioner are proved, the punishment would be death or life imprisonment, the submission of the learned counsel for the petitioner cannot be accepted for extending benefit of bail and hence the petition is to be rejected.10. Heard the learned Senior Counsel for the petitioner and the learned State Public Prosecutor and gone through the materials made available by the counsel for the petitioner as well as the learned State Public Prosecutor. Now the investigation is complete and the charge sheet is filed and the petitioner is in judicial custody for the almost a year. For consideration of the petition for bail, I have gone through the materials made available along with the charge sheet. The technical ground taken by the learned counsel for the petitioner about the admissibility of computer print out, it is for the prosecution to consider the produced certificates under Section 65B and Section 45A of the Evidence Act. These are the materials that are to be considered by the Court below and this is not the right time to go into the matter for the purpose of examining the case. With regard to the ground urged by the petitioner that as on the date of the arrest of the petitioner, the ISIS was not banned by Government of India also cannot be accepted since the United Nations Organisation itself has banned it in the year 2007 thereby the organization is a terrorist organization falling at Sl.No.28 and 33 of the Schedule to Unlawful Activities (Prevention) Act, 1967. The entire materials and the investigation papers and the statement recorded on behalf of the prosecution reveals that there are materials, which convince the Court about involvement of the accused.11. I have also gone through the reasons assigned by the learned Sessions Judge. In the order, the learned Judge has discussed the entire case elaborately considered all the submissions and contentions advanced on behalf of the petitioner as also on behalf of the State and also considered the documents produced by the prosecution. It also observed in the course of the order that the materials placed on record by the prosecution along with the charge sheet go to show that there are reasonable grounds to believe that the accusation made against the accused under Section 13(1)(b), 18 and 39 of the Unlawful Activities (Prevention) Act, 1967 are prima facie true. It is further observed that the petitioner having been accused of having committed offence under Section 121, 124A of IPC of which the offence under Section 121 is punishable with death or imprisonment for life and the offences under Section 124A and 125 IPC are punishable with imprisonment of life and rejected bail to the petitioner. The reasons assigned are sound and proper.12. Further, it is to be noted that effort made by the petitioner is for the specific purpose of destabilizing the Nation and Society. Destabilizing the web of the Society and the State cannot only be by verbal method, but also be done by using soft and illegal method like the one used by the petitioner which affects the social harmony. The paramount importance is always security and safety of Nation and society. The materials in the hands of the prosecution against which the charge sheet is filed, which is placed before this Court, are sufficient for the purpose of rejecting the case of the petitioner. Accordingly, petition is rejected.

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