Delhi HC: ‘Terrorist Act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the conventional offences under the IPC

The Delhi HC on June 15, 2021 {ASIF IQBAL TANHA vs STATE OF NCT OF DELHI & ANR.} held that notwithstanding the fact that the definition of ‘terrorist act’ in section 15 UAPA is wide and even somewhat vague, the phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC.

The Division Bench of Delhi High Court comprising, Justice SIDDHARTH MRIDUL & Justice ANUP JAIRAM BHAMBHANI, further held that when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statute “are not roped in by stretching the law”. 

The HC also held that another sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed.

It was held by the DB of Delhi HC that the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less. It was held that absent this, UAPA could not have been enacted by the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was held that it was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. It was further held that in order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as the court must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’. 

In the present case, the appellant was in judicial custody, having been arrested on 19.05.2020 in case FIR No. 59/2020 dated 06.03.2020 registered under sections 147 / 148 / 149 / 120B Indian Penal Code 1860 (‘IPC’, for short) at P.S.: Crime Branch (‘subject FIR’, for short) in connection with the incidents of violence and rioting that occurred in North-East Delhi between 22.02.2020 and 26.02.2020. It may be noted that offences under sections 109 / 114 / 124A / 153A / 186 / 201 / 212 / 295 / 302 / 307 / 341 /353 / 395 / 419 / 420 / 427 / 435 / 436 / 452 / 454 / 468 / 471 / 34 IPC, sections 3 / 4 of the Prevention of Damage to Public Property Act, 1984 (‘PDPP Act’, for short), sections 25 / 26 of Arms Act, 1959 and sections 13 / 16 / 17 / 18 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’, for short) were subsequently added to the subject FIR. The appellant in present appeal impugned order dated 26.10.2020 made by the learned Special Court before the HC, whereby the appellant’s second application seeking enlargement on bail has been rejected.

The HC held that essential aim and intent of the activities, in which the appellant is alleged to have been involved, was to orchestrate and participate in a protest across the city of Delhi to oppose the enactment of the CAA, which was perceived as a law intended to deprive members of the Muslim community of citizenship of the Republic of India. It was held that there is no allegation in the subject charge-sheet that the anti-CAA protest extended even to the whole of the National Capital Territory of Delhi; and a perusal of the subject charge-sheet shows that the protest and the disruptions it is alleged to have caused were restricted to North-East Delhi. It was held that it would therefore be a stretch to say that the protest affected the community at large for it to qualify as an act of terror.

The court held that having given its anxious consideration to this aspect of ‘likelihood’ of threat and terror, it is of the view that the foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi.

It was held that it has been a recurrent theme, repeatedly urged by the State, that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi. It was held that the court find itself unpersuaded and unconvinced with this submission since  it is not founded on any specific factual allegation and it is of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince the court otherwise. It was held that in this case, it finds that the State’s attempt to show that the accusations made against the appellant are prima facie true, does not commend itself for acceptance.

The HC held that one has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It was held it is smallest circle which encompasses offences which are very serious in nature. It was held that the acts become more and more grave as we journey from the periphery of the largest circle towards the centre. In this journey we travel first through public tranquillity, then through public order and lastly to the security of the State.

It was held that the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law. It was held that terrorism is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon.

It was held by the HC that that there are no reasonable grounds for believing that the accusations against the appellant are prima facie true, the Proviso to section 43D(5) would not apply; and the court must therefore fall back upon the general principles of grant or denial of bail to an accused person charged with certain offences. 

It was held that upon a conspectus of the general law relating to bail and applying these well-worn principles to the present case, in the court's view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as it speaks now these are mere allegations and as the court is not convinced prima facie of the veracity of the allegations so made. It was further held that Charge-sheet dated 16.09.2020 has already been filed in the matter. Some 740 witnesses have been cited in the subject charge-sheet. Trial is yet to commence. In was held that in view of the truncated functioning of courts by reason of the prevailing second wave of the COVID-19 pandemic, it is unlikely that trial will commence anytime soon. 

The Delhi HC accordingly set-aside impugned order dated 26.10.2020 made by the learned Special Court in the case arising from F.I.R. No. 59/2020 dated 06.03.2020 registered at P.S.: Crime Branch; and admitted the appellant to regular bail until conclusion of trial.