The Madras High Court has said that it is debatable whether conspiracy to kill religious leaders fell under the ambit of terrorism under the Unlawful Activities (Prevention) Act (UAPA). A division bench, comprising Justices S S Sundar and Sunder Mohan, made the observations while granting bail to Asif Musthaheen, a resident of Erode district, who was arrested by the NIA last year for allegedly plotting to kill some Hindu religious leaders and RSS members. The prosecution contended that Musthaheen had allegedly plotted to kill the Hindu religious leaders and RSS members in connivance with the second-accused, an alleged ISIS member. Musthaheen, too, wanted to join the terrorist group, the prosecution said. According to the prosecution, this constituted a terrorist act under Sections 18 and 38(2) of the UAPA, which deal with conspiracy or attempt to commit a terrorist act, and offences relating to membership of a terrorist organisation, respectively. However, the bench said while the evidence provided “discloses a conspiracy to attack certain religious leaders, the respondent (state police) has not spelt out how that would amount to a terrorist act as defined under Section 15 of the UAPA.” “In order to bring an act under Section 15 of UAPA, the act must be done with an intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,” the order said. “The question as to whether the killing of Hindu religious leaders by itself can constitute a terrorist act is debatable,” the bench said. The court, however, said it was making the observations by considering only the broad possibilities of the case and only for the purpose of considering the bail application. The court also said there was no clarity on whether the police had acquired sanction for prosecution against Musthaheen within seven days of the investigating officer having acquired evidence, as mandated under UAPA. Any delay, the court said, could be a ground to waive the prohibition on bail imposed by Section 43 D(5) of the Act. Underlining the importance of adhering to procedural safeguards in cases involving severe restrictions on personal liberty, the court, while granting bail, said: “Even assuming that the materials collected by the prosecution may ultimately lead to a conviction, the detention pending trial cannot be indefinite.” Senior Counsel T Mohan and advocate S Veeraraghavan represented Musthaheen, while Additional Public Prosecutor A Gokulakrishnan appeared for the state government.
