Even digital posts inciting terrorism fall under UAPA, says Delhi HC while denying bail to the accused who allegedly radicalized youth online.
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NEW DELHI: The Delhi High Court, while denying bail to the accused, alleged that they radicalized youth online, said that “even digital posts inciting terrorism fall under UAPA”.
The case of Arsalan Feroze Ahenger v. National Investigation Agency, involving serious charges under the Unlawful Activities (Prevention) Act, 1967 (UAPA), raises important questions about the scope of virtual acts under anti-terror laws, the right to personal liberty under Article 21, and the evolving legal standards for bail in cases involving national security.
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Background
The present appeal arises from the Order dated 10.09.2024 passed by the Learned Principal District & Sessions Judge, Patiala House Courts, New Delhi, wherein the bail application of the appellant, Arsalan Feroze Ahenger, was dismissed.
The appellant has been charge-sheeted under Sections 120-B, 121, and 122 of the Indian Penal Code (IPC) and multiple provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA), including Sections 13, 17, 18, 18B, 38, and 39.
The prosecution alleges that terrorist organisations like Lashkar-e-Taiba (LeT) and The Resistance Front (TRF) orchestrated targeted attacks and used social media to radicalise youth and propagate extremist ideologies, following the abrogation of Article 370.
The appellant is accused of being associated with slain LeT/TRF terrorist Mehran Yaseen Shalla and of actively spreading radical content online through platforms like WhatsApp, Telegram, and Facebook.
According to the investigation, Ahenger managed and participated in multiple online groups such as “Ansar Gazwat-ul-Hind,” where he shared violent propaganda, glorified terrorist acts, and encouraged others to join extremist causes.
The charge sheet includes digital evidence like chats, social media posts, and photographs of weapons and assassinated terrorists.
The trial court concluded that there was sufficient prima facie material against the appellant and denied bail under Section 43D(5) of the UAPA, which imposes a high threshold for release. The present appeal challenges this order on grounds including prolonged pre-trial detention and the lack of direct involvement in terrorist activities.
High Court’s Observation
The Delhi High Court, while hearing a fresh bail plea, took a serious view of the accusations. A division bench comprising Justices Subramonium Prasad and Harish Vaidyanathan Shankar held that Section 18 of the UAPA is broad enough to include not just physical acts but also digital conduct that incites or facilitates terrorist activity.
The Court clarified that even the online dissemination of radical ideology through images, videos, or messages on social media platforms can fall within the ambit of “conspiracy” or “incitement” to terrorism.
Rejecting Ahenger’s argument that merely sharing photographs of slain terrorists did not amount to a terrorist act, the Court noted that there was sufficient prima facie material to indicate his active role in promoting extremist ideology and motivating others toward terrorism. The Court said,
“The provision is framed in such a broad manner that even the usage of social media or any digital activity to disseminate radical information and ideology falls within its ambit.”
The High Court concluded that the nature of the offences, the risk of influencing witnesses, and the seriousness of the charges, punishable with life imprisonment, justified the denial of bail. Moreover, it noted that under Section 43D(5) of the UAPA, bail can be denied if the accusations appear prima facie true, which the bench found satisfied. The Court stated,
“The fact that the punishment for the offence under Section 18 of UAPA is life imprisonment and the fact that there are witnesses whose identities have not been disclosed and would be at risk, if the Appellant is enlarged on bail, cannot be ignored. Moreover, given that the Appellant is in a position of influence, there is a high possibility of him tampering with the evidence and may pose a flight-risk. Therefore, the Appellant also fails to satisfy the tripod test.”
The Court further added,
“It is well settled that the statutory restriction under Section 43D(5) of UAPA is more stringent than its counterpart provision under the CrPC/BNSS. Considering the facts of the present case, this Court is not inclined to grant bail to the Appellant at this juncture.”
However, the Court did not dismiss Ahenger’s rights entirely; it acknowledged that he could seek bail in the future if there is undue delay in the commencement or conclusion of the trial, thereby reaffirming the relevance of Article 21 even in cases involving national security. The Court said,
“However, keeping in mind that right to speedy trial has been held to be concomitant under Article 21 of the Constitution of India, it is always open for the Appellant to approach the Competent Court for the grant of bail if the trial does not commence in the near future or that there is an undue delay in completion of trial.”
Case Title: ARSALAN FEROZE AHENGER VERSUS ARSALAN FEROZE AHENGER
CRL.A. 1087/2024
READ JUDGMENT HERE
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