The Madras High Court has recently emphasized that acts leading up to a terrorist act must be closely connected to the intended outcome.

The bench, consisting of Justices S.S. Sundar and Sunder Mohan, declared that when an officer in charge of a police station receives and records information related to scheduled offenses, they are obligated to report the offense to the State Government, and they have no discretion in this matter.

In this particular case, members of the Youth Wing protested against a visit by a Minister from the UDF Government in Kerala to Kannur District. The Minister was visiting the area to inaugurate a Cooperative Urban Bank. Unfortunately, the protest escalated into violence, leading to a situation where the police had to use batons (lathi charge) and, in certain instances, resort to firing their weapons. This unfortunate turn of events resulted in the tragic deaths of five individuals and injuries to six others. Prior to the police firing, more than 100 people had also been injured during the incident. The police fired their weapons at two different locations during the course of the incident.

Regarding the incident near Town Hall prior to the police firing, the Additional Superintendent of Police in Thalassery registered a criminal case. The case was filed against eight individuals who were named, as well as several unidentified individuals. The charges included offenses under Sections 143 (related to unlawful assembly), 307 (attempt to murder) in conjunction with Section 149 of the Indian Penal Code (IPC), Section 3(2)(e) of the Prevention of Damage to Public Property (PDPP) Act, and Sections 3 and 5 of the Explosive Substances Act. 

The bench made an important observation that when an officer in charge of a police station receives and records information related to scheduled offenses, they are not afforded any discretion but are obligated to report the offense to the State Government. Furthermore, it is mandatory for the State Government to forward this report to the Central Government. The decision of whether the reported offense qualifies as a scheduled offense and whether it is suitable for investigation by the National Investigation Agency (NIA) rests with the Central Government. Only when the Central Government is convinced that the reported offenses constitute scheduled offenses and warrant NIA investigation will they direct the NIA to undertake the investigation.

The High Court stated that the prosecution has not presented any compelling evidence to establish the true objectives of the Organization or the motives behind the formation of the Popular Front of India (PFI) that would warrant labeling it as a terrorist organization. Even though the PFI has been declared an unlawful association, the court cannot assume that the organization was established with the intention to engage in acts of terrorism under Section 15 of the Unlawful Activities (Prevention) Act (UAPA), especially when there are no reported instances of the PFI organizing terrorist acts.

Based on some of the materials available in the provided documents, the court can, at best and without contradiction, infer that the organization's intention was to protect members of the Muslim community from oppression or violence, such as mass lynching by the majority community. In essence, the court suggests that while the PFI may have been deemed unlawful, its primary purpose, as indicated by the available evidence, appears to be safeguarding the interests of the Muslim community rather than engaging in acts of terrorism.

The bench made an observation regarding the term "preparatory" as used in Section 18 of the Unlawful Activities (Prevention) Act (UAPA). According to the bench, the term "preparatory" in this context essentially means any act that serves as a step in aiding or preparing for the commission of a terrorist act. When a charge is brought against an unlawful association for engaging in preparatory activities, it can only be presumed that these preparations are for an unlawful act. In other words, any act undertaken by the appellants as members or office bearers of the Popular Front of India (PFI) cannot be automatically assumed to fall within the scope of Section 15 of the UAPA, which pertains to the definition of a terrorist act.

The High Court emphasized that the prosecution failed to provide any material evidence to demonstrate the involvement of any of the appellants in any terrorist acts, or their membership in a terrorist group or organization, or their engagement in terrorist training. Section 18 of the Unlawful Activities (Prevention) Act (UAPA) is relevant only when an act can be interpreted as preparatory to the commission of a terrorist act. Since the Popular Front of India (PFI) has only been declared an unlawful association and not a terrorist organization, any preparatory act in this context should be understood as a defensive or protective measure rather than an act intended to perpetrate a terrorist act. In other words, without evidence of involvement in actual terrorism, charging individuals with preparatory acts should be considered in the context of self-defense rather than terrorism.

The bench observed that when the available literature and other information suggest that the organization, at least on paper, was established with the intention of providing training to protect the community from communal violence when it is unleashed against them, the court cannot interpret the acts described by the listed witnesses as acts that are in the nature of preparation for the commission of terrorist acts.

The High Court noted that when one views the activities of the appellants with a skeptical or biased perspective, it may appear that the respondents believe the appellants to be activists of an unlawful organization. However, in the absence of any evidence linking the appellants to the "vision document," every serious accusation against them seems to be based on probabilities and assumptions

The bench referred to the case of National Investigation Agency vs. Zahoor Ahmad Shah Watali and observed that there must be substantial and credible evidence, such that it is apparent on the face of this evidence that an offense has been committed. 

The High Court expressed the opinion that the prosecution's case relies on certain materials that are not directly connected to the appellants. Therefore, the opinions formed by the respondents prior to the investigation and the documents collected thus far, including the chargesheet, do not provide sufficient justification for concluding that the accusations against the appellants, including A6 (the sixth accused), are prima facie true.

In light of the considerations mentioned above, the bench granted and allowed the criminal appeal.

Case: Barakathullah v. Union of India, CRLA.Nos.98, 114 & 116/2023.