"Can't Punish Just for Mere Possession Of Jihadi Literature," Says Delhi Court

None of the accused had conducted any recruitment process nor was any fund transferred to ISIS, the court said.

'Can't Punish Just for Mere Possession Of Jihadi Literature,' Says Delhi Court

The court made the observation while hearing a case filed by the National Investigating Agency.

New Delhi:

A court in Delhi has framed charges against nine accused under the Unlawful Activities (Prevention) Act for propagating the ideology of ISIS even though it observed that mere possession of non-prohibited jihadi literature would not amount to an offence.

The court was hearing a case registered by the National Investigating Agency under the relevant provisions of the Indian Penal Code and the UAPA.

"Let the charges be framed against the eight accused -- Mushab Anwar, Rhees Rasheed, Deepthi Marla, Mohammad Waqar Lone, Mizha Siddeeque, Shifa Haris, Madesh Shanker, and Ammar Abdul Rahiman -- under the relevant provisions of the IPC and the UAPA," Principal District and Sessions Judge Dharmesh Sharma said in a recent order.

The court framed charges against the accused under Section 120B (criminal conspiracy) of the IPC read with Section 2 (o) (Unlawful activity) read with Section 13 (Punishment for indulging in unlawful activities) along with Sections 38 (Offence relating to membership of a terrorist organisation) and 39 (Offence relating to support given to a terrorist organisation) of the UAPA.

The court said all the eight accused were accessing highly provocative jihadi material and subscribing to the ideology of ISIS, besides actively disseminating such material and seeking support from like-minded people.

They were also enticing gullible Muslim youths to follow ISIS policies and professing to be self-styled operatives of ISIS, thus, making all efforts to further the cause of the banned organisation.  The court, meanwhile, discharged an accused, Muzamil Hassan Bhat, from all the charges, saying there was no evidence to establish that he professed to be a member of ISIS or that he did anything to further the activities of the banned organisation.

The court also framed charges against another accused, Obaid Hamid Matta, under Section 2 (o) read with Section 13 of the UAPA for indulging in the commission of unlawful activities.

It also said that merely because Matta was accessing and reading certain hardcore Islamic literature, he did not commit any offence.  The court, however, discharged all the accused for several offences, including those under Sections 17 (Punishment for raising funds for terrorist act), 18 (punishment for conspiracy etc.), 18B (recruiting any person or persons for commission of a terrorist act ), 20 (Punishment for being member of terrorist gang or organisation) and 40 (Offence of raising fund for a terrorist organisation) of the UAPA and Section 121A ( Conspiring to commit certain offences against the State) of the IPC.

It said that the prosecution had failed to prima facie establish that the accused people were members of any terrorist organisation and that mere possession of jihadi literature was not an offence.

"Further, to hold that mere possession of jihadi literature having a particular religious philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is not fathomable in law unless and until there is material about the execution of such philosophy so as to do terrorist acts,” the court said.

Such a proposition was contrary to the freedoms and rights guaranteed by the Constitution, the court said.

"Even if they (the accused) were impressed by the said philosophy and ideology, still they cannot be said to be members – much less such members as would attract the penal liability - of the said organisation (ISIS),” the court said.

The court said that none of the accused committed any “terrorist act” within the scope of the relevant sections of the UAPA or conspired to wage war against the government.

"The material gathered by the investigation agency at best demonstrates that almost all the accused except Accused 11 (Bhat) were ISIS sympathisers and accessing highly radicalised jihadi material from the web world but there is no iota of material to suggest any of the accused individually or in association committed or planned any terrorist act,” the court said.  The court said that there was no evidence to establish that any of the accused was entrusted with the task of soliciting details of like-minded people, conducting interviews, taking money or facilitating their onward journey to ISIS-controlled territories.

None of the accused had conducted any recruitment process nor was any fund transferred to ISIS, the court said.