Kerala High Court refuses bail to 3 ISIS convicts; says court can deny relief even if convict in jail for half the sentence

The Kerala High Court recently observed that appellate courts have the discretion to refuse to suspend the sentence of convicts during the pendency of their appeal, even if they have already spent over half their sentence in prison [Abdul Razak @ Abu Ahmed v National Investigation Agency]..A division bench of Justices Alexander Thomas and Sophy Thomas, therefore, refused to grant interim bail or suspend the sentence of three persons convicted by trial court under the Unlawful Activities Prevention Act (UAPA) for attempting to join terrorist organisation ISIS/Daish, for indulging in violent jihadIn order to decide whether to suspend their sentence and release them on bail until their appeal is decided, bench examined the Supreme Court's decision in Satender Kumar Antil v. Central Bureau of Investigation.In it, the apex court had observed that the delay in taking up the main appeal coupled with the benefit conferred under Section 436A of the CrPC among other factors ought to be considered, for releasing the applicants/appellants on bail. Section 436A CrPC (Code of Criminal Procedure) provides that no one should be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. However, the High Court highlighted that in Satender Kumar Antil, the Supreme Court had said that its directions in that case were intended to act as guidelines and the plea for bail has to be considered on the merit of each case. "In paragraph 5 of the judgment in Satender Kumar Antil’s case cited supra, the Apex Court made it clear that all the discussions along with the directions in that case, were meant to act as guidelines, as each case pertaining to a bail application is obviously to be decided on its own merits. Here is a case where the applicants/appellants acted against the interest of the nation as they wanted to wage war against Syria, an Asiatic power at peace with the Government of India. So, even if the applicants/appellants have undergone major portion of the sentence imposed on them, it is not safe to release them on bail, as we do not know whether they still entertain the idea of performing Hijra to Syria for indulging in violent jihad," the bench said as it refused to suspend the convicts' sentences. .The Court was considering sentence suspension applications moved by three persons who were convicted by a special court in July of last year under various provisions of the UAPA as well as the Indian Penal Code (IPC). Two of the accused were sentenced to 7 years and one to 6 years rigorous imprisonment. The sentences were to be offset by the time they had spent behind bars already.Subsequently, they moved the High Court challenging the Special Court's order. They also moved the present applications to suspend their sentence during the pendency of the appeal. The appellants were arrested in October 2017 and have been imprisoned since then. .Before the High Court, they argued that the prosecution failed to prove its case beyond a reasonable doubt and that they have a good chance of succeeding in the appeal. Therefore, they sought bail since they have already undergone over half of their sentence and because their appeals might become pointless otherwise. .The respondent National Investigation Agency (NIA) opposed the applications moved by the appellants. It was argued that if the appellants are released on bail, there is every chance for them to abscond and indulge in terrorist activities..Upon going through the precedents set by the Supreme Court on the issue, the Court said the the nature of the accusations against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and its social impact, are all to be looked into while considering an application for suspension of sentence and to release the accused on bail.Since the allegations in this case were very serious, the Court decided to consider their applications on merits to see whether there were prima facie reasons to grant bail such.After examining the important materials discussed by the special court, the Court was unable to find any clear infirmity in its order of conviction and sentence. "Moreover, considering the nature and gravity of the offences alleged, which are affecting the integrity of the nation and security and liberty of its citizens, the discretion has to be exercised with more care and caution, and not in a casual manner. Prima facie nothing is there, cogent enough to raise substantial doubts regarding the validity of the conviction," the Court said as it dismissed the applications. .The appellants were represented by advocates Vishnu Babu, Pranoy K Kottaram, P Yadhu Kumar and Swetha KS.Deputy Solicitor General of India S Manu appeared for the respondent..[Read Judgment]