Penal Code, 1860:
ss.120B and 125 and ss.38, 39 and 40 of Unlawful Activities (Prevention) Act, 1967 – Conviction under – By trial/Special Court – Sentenced to three years RI on one count and seven years RI on four counts – High Court acquitted the accused u/s.125 IPC and ss.39 and 40 of the Act – Conviction u/s. 120B IPC and s.38 of the Act was upheld while reducing the sentence to one year and three years respectively – Appeal of State challenging the acquittal order and reduction of sentence – Appeal by accused challenging conviction order – Held: Evidence on record point to the existence of mens rea and hence conviction u/s.120B IPC and s.38 of the Act was correct – But the offences u/ss. 125 IPC and ss.39 and 40 of the Act are not made out, hence acquittal thereunder affirmed – However, reduction of sentence by High Court on the ground of sympathy is not sustainable – Therefore, sentence of thRee years and seven years imposed by trial Court is restored. Unlawful Activities (Prevention) Act, 1967:
ss.38 and 39 – Scope of – Held: The scope of ss.38 and 39 and their fields of operation are different – On investigation of s.38, s.39 does not become superfluous.
Partly allowing the appeal of the State and dismissing that of the accused, the Court
HELD: 1 The evidence on record, establishes that A1 was propagating the ideology of IS and advocating, among other things, war against non-Muslims; that the classes were attended by A2 (appellant-accused) that the videos relating to such speeches were found on her person when she was arrested; and that she was attempting to go to Afghanistan at the instance of A1. These features definitely point to the existence of mens rea. The Courts below were therefore absolutely right in recording conviction against A2 in respect of offences under Section 120B IPC and Section 38 of the Unlawful Activities (Prevention) Act, 1967. [Para 15] [1003-G-H; 1004-A-B]
2. As regards the offence under Section 125 of the IPC the High Court was right in observing that there was evidence to prove that A2 had attended classes of Jihad propagating ISIS ideology by original Accused No.1 but there was nothing to indicate that she had taken any steps to wage a war or had attempted or abetted waging of such war against any Asiatic Power in alliance with or at peace with Government of India and as such there was no material to sustain the charge under Section 125 IPC. [Paras 6 and 7] [1001-B-C]
3. Sections 39 and 40 of the Act require certain elements in respect of which there is no material evidence on record. For Section 39 of the Act to get attracted, support to a terrorist organisation must be within the meaning of either of three clauses viz clauses (a), (b) and (c) of sub Section (1). Similarly, Section 40 requires certain elements on satisfaction of which a person can be said to be guilty of raising funds for a terrorist organisation. None of those features are established as against A2. The acquittal in respect of charges under Sections 39 and 40 was therefore rightly recorded by the High Court. [Para 16] [1004-D-E]
4. The High Court was not right in observing “if a person is punishable under Section 38, Section 39 becomes superfluous”. The scope of these two Sections and their fields of operation are different. One deals with association with a terrorist organisation with intention to further its activities while the other deals with garnering support for the terrorist organisation, not restricted to provide money; or assisting in arranging or managing meetings; or addressing a meeting for encouraging support for the terrorist organisation. [Para 17] [1005-F-G]
5. The only ground that weighed with the High Court while reducing the sentence was sympathy. Even at the time of arrest of the appellant-accused, while leaving for Afghanistan, certain objectionable material was found on her person. The intensity of her participation and involvement were clearly made out. In the circumstances, there was no room for invoking sympathetic considerations. The quantum of sentence imposed by the trial court was absolutely correct and adequate. [Para 19][1004-H; 1005-A]
State of Kerala v. Raneef (2011) 1 SCC 784 : [2011] 1 SCR 590 – distinguished.
Arup Bhuyan v. State of Assam (2011) 3 SCC 377 : [2011] 2 SCR 506 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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