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Judgment
Navin Chawla, J.
This appeal has been filed by the appellant under Section 21(1) of the National Investigation Agency Act, 2008 (hereinafter referred to as ‘NIA Act’) challenging the order dated 03.05.2023 passed by the learned Additional Sessions Judge-03 (Special Judge) (NIA), Patiala House Courts, New Delhi (hereinafter referred to as ‘Trial Court’) in RC No.29/2021/NIA/DLI titled NIA v. Tariq Ahmed Dar & Ors., (hereinafter referred to as the ‘Impugned Order’) granting bail to the respondent in the said case registered under Sections 120B, 121A, 122 and 123 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and Sections 18, 18A, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the ‘UA(P) Act’).
The respondent was arrested in the above case on 13.10.2021 and has been arrayed as accused no.10 in the charge-sheet dated 08.04.2022 filed by the appellant.
Before proceeding further with the consideration of the present appeal, the case of the prosecution can be divided into two parts; one being of a larger conspiracy of spreading terror in the Union Territory of Jammu and Kashmir, the other being of specific role of the various accused named in the charge-sheet.
As far as the larger conspiracy is concerned, the appellant sums up the same in the Memo of Appeal, as under:
“III. That after the abrogation of Articles 370 and 35 of the Indian Constitution the local youth got motivated and brainwashed by the proscribed terrorist organization influencing them to join separatist groups and become OGW in order to create unrest within the valley.
IV. That collectively these proscribed terrorist organizations formed United Jihad Council (hereinafter referred to as "UJC") which was a united alliance between the various proscribed terror outfits that came together and shared their assets with one another to create a universal network of assets which would together work in tandem to revive terror and unrest in the valley as a means to achieve their separatist and anti-national agenda. It is pertinent to mention here that the UJC was established on the directions of Inter-Services Intelligence (ISI), Pakistan, to make sure that the unified command and control is exercised in India by the proscribed terrorist organizations. UJC instructed the proscribed terrorist organizations to work synchronously so as to revive militancy steadfastly and strategize the usage of social media platforms and cyberspace amongst many other functions which were being instructed to carried out.
V. That during the course of the investigation it was revealed that a "co-ordination group" was constituted and with the strategy to attack and ignite fear within the minds of the people staying in the valley was re-organised by involving some hybrid cadres who basically were people with daily routinely jobs but disguised in the form of OGW and they were made to carry out small violent/terrorist activities.
VI. That most of these terrorist organizations and their off shoots started to appear on social media platforms, that is, on telegram, Whatsapp, Facebook and Twitter to name a few. And their visibility and traction only increased as the time went by.
VII. That if major social media platforms were not enough these active cadres started using smaller applications like Tam Tam, Nand Messenger in order to spread the propaganda. The reason why these applications were used to avoid detection by Law Enforcement Agencies.
VIII. That through these social media platforms other than posting hate messages against the Government of India, photographs were also uploaded applauding the attacks in the valley which led to propagating violence via social media in every form, further videos venerating the terrorist who were apprehended by the military forces.
IX. That during investigation it was deduced that firstly the main aim of these proscribed terrorist organization was to float new outfits with secular/indigenous names, and, secondly, to attract new cadres to join these proscribed terrorist organizations. The OGW were tasked with the job of recruiting local youth and to keep a watch on the military/police movement so as to find a target for the attacks.
X. During investigation it was revealed that the proscribed terrorist organization operating in J&K would induct the youth by scouting them through online social media platforms and thereafter, the handlers in Pakistan would give instructions and initiate them into terrorist fold by secure messaging applications and radicalise, indoctrinate these newly joined cadres by giving them online training of how to use weapons and explosives.
XI. That other than providing online training these proscribed terrorist organizations relied heavily on online platforms for networking so that offline contact is bare minimum. Moreover, weaponry movement, small scale attacks, threats and providing information regarding hide outs was mostly done via online mode. During the time of investigation, it was revealed that these cadres also receded some vital installations at New Delhi of these terrorist organization at the instructions of the Pakistan based handlers.
XII. That the youth which was inducted by the proscribed terrorist organization were referred to as hybrid cadres or lone wolf operators wherein they got associated with online propaganda groups floated by Pakistan based handlers. It is here that the accused/Respondent was acting as a lone wolf operator along with other co-accused.
XIII. That in the present case it can be easily concluded that all accused persons were motivated towards the separatist ideology and were in conspiracy with various accused and terrorists in Pakistan, against the Government of India via offline and online mode.”
On the specific role of the respondent in the larger conspiracy as mentioned above, the charge-sheet alleges as under:
“15. RESULT OF LABORATORY ANALYSIS:
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15.7During the course of investigation, some incriminating voice were retrieved from the forensic data of digital data seized from the possession of accused A-10, the questioned voice clips and sample voice clips of accused A-10 were sent to CFSL CBI for voice sampling vide letter no. RC-29/2021/NIA/DLI/151 dated one brown colour butt of double barrel gun bearing number 8443-81 along 22.03.2022. Forensic report is still awaited.
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17. FACTS DISCLOSED DURING INVESTIGATION:
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Weapon Training, Recoonnaince and Execution of attacks
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17.18Investigation has brought on record that A-2 on directions of A-1, directly conspired with arrested accused persons A-3, A-5, A-6, A-8, A-17, A-20, A-22, A-23 and A-24 to assist active cadres associated with proscribed terrorist organizations and their newly formed frontal organizations, whereas the other arrested accused persons A-4, A-9, A-10, A-11, A-12, A-13, A-14, A-15, A-16, A-18, A-20, A-21, A-25, A-26 and A-27, acting as hybrid cadres or lone wolf operators, got associated with online propaganda groups floated by various Pakistan based handlers of proscribed terrorist organizations on directions of A-1, A-2 and other commanders of the 'United Jihad Council'. Due care was taken by A-1 and A-2 to ensure that all the other terrorists in this conspiracy did not know much about each other so that even if one of these was arrested, security agencies could not identify and locate other conspirators involved in the larger conspiracy.
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17.87During the course of investigation, it has been revealed that after the abrogation of Article 370 and Article 35-A, the accused Mateen Ahmed Bhat got motivated towards separatist ideology and decided to help active terrorists and other associates / Over Ground Workers (OGWS) to fight for the so called freedom of Kashmir, by one Muzaffar Ahmed Bandey resident of village Madujan, district Shopian.
17.88Investigation further revealed that the said Muzaffar Ahmed Bandey was a active cadre of proscribed terrorist organization and motivated Mateen Ahmad Bhat through the groups run under the direction of A-1 on cyber space by operatives of proscribed terrorist organizations based at Pakistan. Muzaffar Ahmed Bandey also helped accused Mateen Ahmed Bhat to establish contact with a Hizbul Mujahideen terrorist of Kulgam area, code name @ Sabjar a native of Kulgam through a telegram ID created on his mobile phone in the name of 'Bhatmateen'.
17.89Investigation has also revealed after meeting with HM terrorist Sabjar, accused Mateen Ahmed Bhat started working as an Over Ground Worker (OGW) for him and other active militants and handlers based in Pakistan related to proscribed terrorist organizations namely, Lashkar-e-Toiba (LeT) and Hizbul Mujahideen (HM). The accused was involved in providing logistics support, assisted movement of weapons, recruitment of local youths to terror ranks and he was involved in assisting to the active cadres / terrorist in Kashmir Valley.
17.90Investigation has further brought up on record that accused Mateen Ahmed Bhat was in contact with active terrorists and was working on their directions facilitating logistics support and movement of arms & ammunitions. A number of incriminating audio clips retrieved from the mobile phone of the arrested accused Mateen Ahmed Bhat have been sent to CFSL CBI, New Delhi for matching of voice. The transcripts of the incriminating voice notes found / retrieved are as under: -
S.No. Audio title Transcript in Kashmiri Transcript in Hindi 1. Audio 1_51389951 2204571486 5 Salamualiakum bai uncle ji, ma gai mushti mushti, chew anti mai nadas peth tulaw yeman ladakaakh yemu lashkar walaen, ye yath kia wanun Jeish, buztha, su chu osmat addha (18) rattan band na wan chuk su yal trumut buztha. Te wan che temas bei chandan, magar tem bechur kur arrange panal pistol buztha.tem dhup yemis mei huth tamaschu gun ti magar su chu na zima hewaan, tum wan pata agar tim rob wob ti karwas su tamas chu gun wan ti tam unmat kyah dhamalchi kia wanun magar lashkar wol. Salamualiakum bai uncle ji, ma bhoolgya hu, aap mujhe bolo naad ma aik ladka ko uthaya tha lashkar walo ne ya jaish ne, wo bechara 18 mahinose band tha ab usko raha kiya haab usko phir doondrha hain, us bechare ne aik pistol bi arrangekia hai. Usne bola ma ne jaish se lia hai, uske pass gun wan be hai. Lekanwo zima ni le rha hai. Agr usko draye dhamkaye ga to wo bhol de ga k gun kahan se laya hai aur saman dhamalma hai. 2. Audio 1_51389951 2204571486 8 Yem bechur unmat pistol ti 15 gol, wol tem dhop temas ladkas chu gun wan ti chu chuwa zima hawan kehnti dhop tu na yali thapaed dha (10) who (20) walinyem su haw adh zima. Su chu dhamal saman ttaw ad kahar saman naw unmat. Us bechare ne pistol be laya 15 goli wala. Usne bola us ladka k pass gun wan b hai lekan wo zima ni le rha hai, agr uskr thapad 10 20 mara ga to wo zima le ga aur bta de ga,dhmala ma both sara neya saman aaya hai. 3. Audio 1_51431587 9648644336 9 Walikumaslamwa rahmatullah, zahar man amis police chandan, am chi 18 ratan ditmit jail na.wan uos amut ghar baiwan chu os karmut phone buztha. Emis chus thanas parcha am hasa lagow dhamal grenade. Wan nin mien baya, pat trwanna mai yale kyah. Bei chus yashan active gachun, yaliyo gayo.dapan bei dhim pati poinse pata mai gasan yale yut. Walikumaslam wa rahmatullah usko phir se police doond rhi hai. Wo 18 mahine jail mai rha hai ab wo ghar aaya hai aur usko phone kia ha. Usko police ne parcha lagana hai, usne dhamal ma grenede phenka hai. Aur ab phir se police utha k le jaye gi aur ab mujhe chode ge nhi. Wo bol rha tha ma active hona chahta hu aur kia kro. Aur keh rha tha k mai paise b doon ga magr mujhe utha le apne sath. 4. Audio 1_51431587 9648644337 0 Dhupan yi chu Bayis Ladkus, Bayis Timav chi Dhamhal Unmut Buztha, Dhapan tamis nish chu warya Saman, Su chun zima Havan, Mai Dhupusche Dhe Tamis Laich Patosus Tam Homut. Bhola ye Dosray ladkay kay pass hain jjis nai Dhamhal se laya hain. Bhola us kay pass bhohat samanhai Magar woh Zimay nahi lay raha hai. Main nay bola aap us ko lalch day dho aur tab us nay dhikhaya 5. Audio 1_51431587 9648644337 2 Naw che naw mani su cha. Su dhapan tat chi Warya Mal Dump. Agar Nafar Asi Na Su chunakh 10-20 Thapad Tamis hen Zima. Nahi aap ko nahi manay gay woh woh bol raha tha na wahan bhohat saman dump hain, Agar koi aadmi 10-20 thapad mar day ga to woh Zima lega. 6. Audio 1_51431587 9648644337 7 Su hai tamis Buzthasu hai tamis Buztha Magar Masala chu na su chu Dhapan Mai Tuliv Dhapan Mai Chu Polie chandan Man chi bhi phas bai bhi na chus yaschankahin Tri chu Masia huth manz katya dhiyee yethpath Wo Lay ga us se lay ga suna magar masla ye hain wo bola raha hai mujhay police dhoondh rahi hai Main phir se phansana nahi chata hooh.Maslayun hain ki woh aisay nahi day ga Jaisay Aap bhol rahay ho. xxxx
17.107 Role and activities of/offences established against Mateen Ahmed Bhat (A- 10)
Accused Mateen Ahmed Bhat (A-10) willingly entered and working as an Over Ground Worker for the active terrorist in Kashmir Valley. The accused Mateen Ahmed Bhat (A-10) was also involved in procurement of arms & ammunitions for the active members of banned terrorist outfits to create unrest and terrorist act in the valley and other parts of the Country. Therefore, as per the averments made hereinabove/ in the pre- paragraphs, it is established that the accused Mateen Ahmed Bhat (A-10) and others and in pursuance of the larger conspiracy indulged himself and become the part of larger conspiracy hatched by the banned terrorist organisations/terrorist gangs.
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18. CHARGE:
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18.1In the instant case, there is sufficient evidence in the form of oral and documentary evidence including digital evidence that establishes beyond any reasonable doubt that the accused persons had entered into criminal conspiracy with the co accused persons and known &unknown persons and also raised funds by illegal means to extend support to the banned organization LeT, HM and others. The conspiracy got unearthed by way of the arrest of accused persons in the instant case and discovery of the various fact & material. The evidence on record led to the arrest of accused A-1 to A-27 (except A-7) and A-20 (Chargesheet is being filed in JJB Board, Kingsway Camp New Delhi) being part of the conspiracy and extending support to the banned terrorist organisation by way of spreading propaganda, assisting active cadres of proscribed terror outfit in J&K and other parts of India especially in New Delhi.
18.2Hence, the accused persons are liable for prosecution under the following sections of Law:-
| S.No. | Accused Name | Sections of Law |
| xxxx | xxxxx | xxxxx |
| 9. | Mateen Ahmed Bhat (A-10) S/o Manzoor Ahmed Bhat R/o Village Pudsoo, District Shopian, J&K | Under Sections 120B & 121A of IPC and Sections 18, 20, 38 &39 of UA(P) Act |
The learned Trial Court, in its impugned order, has considered the above allegations of the appellant against the respondent, taken note of the restrictions placed in Section 43-D (5) of the UA(P) Act on grant of bail, and found that the prime case of the appellant against the respondent is based on the alleged Disclosure Statement (D-42) of the respondent as also the alleged incriminating material, especially the mobile phones recovered from his house during the search and seizure conducted on 12.10.2021 as mentioned in the memo of search and seizure (D-20). The learned Trial Court observed that as far as the Disclosure Statement (D-42) of the respondent is concerned, the same may be an inadmissible document in the absence of any consequent discovery of any article and even otherwise a perusal of the same would show that there is nothing incriminating stated by the respondent in the same. The learned Trial Court further held that as far as the allegation of the respondent participating in meetings of terrorist organisation and being an Over Ground Worker (OGW) helping such organisation is concerned, there appears to be no evidence to support the same. The learned Trial Court further observed that there is also no evidence of handling of arms and ammunition by the respondent or joining any classes for radical teaching on the line of religion. The learned Trial Court observed that while the allegations against the respondent revolve around one Muzaffar Ahmad Bandey and that the respondent was radicalized by him, but interestingly, Muzaffar Ahmad Bandey is neither an accused nor a witness in the case. On the alleged calls exchanged between the respondent and the said Muzaffar Ahmad Bandey, the learned Trial Court observed that, at most, it would show that the respondent was referring about a boy who had knowledge about huge arms, etc., however, would not by itself show the respondent to be a part of conspiracy as alleged by the prosecution. The evidence may also show that the respondent had some empathy for the boy or knowledge about the arms, however, in absence of any ‘overt act’, the respondent was entitled to bail.
The appellant challenges the above order by contending that the learned Trial Court has erred in dissecting each item of material against the respondent and considering the same in isolation and conducting a mini-trial.
SUBMISSIONS OF THE LEARNED SPP FOR THE APPELLANT:
Mr. Amit Tiwari, the learned SPP submits that the learned Trial Court has clearly erred in exercise of its jurisdiction under Section 43D(5) of the UA(P) Act. He submits that the learned Trial Court erred in disregarding the Disclosure Statement (D-42) of the respondent as being inadmissible and as disclosing nothing incriminating against the respondent. He submits that the said statement disclosed the radicalisation of the respondent, his contact through the Telegram ID ‘Bhatmateen’, created on his own mobile phone, with Hizbul Mujahideen commander ‘Sabjar’, and his functioning as an Over Ground Worker in providing logistic support, assisting the movement of weapons and recruiting local youth.
He submits that the learned Trial Court could not have considered the admissibility or evidentiary value of the Disclosure Statement (D-42) at the stage of considering an application filed by the respondent seeking bail.
He submits that the learned Trial Court has also erred in observing that no ‘overt act’ has been alleged to have been committed by the respondent. He submits that the forensic scrutiny of the device recovered from the respondent discloses call logs with the Hizbul Mujahideen and Over Ground Worker- Muzaffar Ahmad Bandey. He submits that PW-311 has deposed that the respondent gave his personal phone to Muzaffar Ahmad Bandey to contact entities across the border in Pakistan and, on instructions of Muzaffar Ahmad Bandey, kept watch on the movement of the army and police. The protected witness PW-X-21 states that the respondent was to make active a person known to be in possession of weapons and wanted by police. There is also CFSL Report confirming the incriminating voice notes recovered from the device of the respondent. He submits that, in fact, on the same material, the learned Trial Court has proceeded to now frame charges against the respondent vide order dated 30.07.2024 read with order dated 20.08.2024. There is, therefore, clearly a contradiction and error committed by the learned Trial Court in the impugned order.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENT:
On the other hand, Mr. Kartik Venu, the learned counsel for the respondent, submits that there is no error committed by the learned Trial Court in passing the impugned order. He submits that the jurisdiction of this Court to consider the present appeal is limited to examining whether the learned Trial Court has committed any grave error in releasing the respondent on bail. He submits that no such case is made out by the appellant in the present appeal.
On the order on charge as well as the consequent order framing charges, he submits that the said order(s) have been challenged by the respondent by way of a petition being CRL.M.C. 323/2026 titled Mateen Ahmad Bhat v. National Investigation Agency and, in the order dated 17.01.2026 passed in the said petition, the learned Single Judge of this Court has observed that the respondent was able to prima facie establish that the allegations taken by the learned Trial Court against the appellant, in fact, never made reference to the respondent herein. He submits that, therefore, merely because charges have now been framed against the respondent, is no ground to allow the present appeal.
ANALYSIS AND FINDINGS:
We have considered the submissions made by the learned counsels for the parties.
At the outset, we would note the limited scope of jurisdiction that we exercise while considering an appeal filed by the prosecution challenging an order granting bail to the accused. It has been time and again emphasised by the Supreme Court that setting aside an order granting bail and cancellation of bail are two distinct concepts. While the former contemplates the correctness of the order itself, the latter pertains to the conduct of the accused subsequent to the order granting bail. The order granting bail can be tested on its illegality, perversity, arbitrariness, and for it to be based on unjustified material, while the order cancelling bail takes into account the circumstances subsequent to the grant of bail making it necessary to cancel the bail so granted. We quote from the judgement of the Supreme Court in Y v. State of Rajasthan, (2022) 9 SCC 269, as under:
“15.It is worth noting that what is being considered in this case relates to whether the High Court has exercised the discretionary power under Section 439 CrPC in granting bail appropriately. Such an assessment is different from deciding whether circumstances subsequent to the grant of bail have made it necessary to cancel the same. The first situation requires the Court to analyse whether the order granting bail was illegal, perverse, unjustified or arbitrary. On the other hand, an application for cancellation of bail looks at whether supervening circumstances have occurred warranting cancellation.
16.In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] this Court held as follows : (SCC p. 513, para 12)
“12.We have referred to certain principles to be kept in mind while granting bail, as has been laid down by this Court from time to time. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of, or bail is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the court.”
17.In the present case, it is necessary to determine whether the High Court while granting bail to Respondent 2-accused has properly exercised its discretion under Section 439 CrPC by following various parameters laid down by this Court. A bare perusal of the impugned order [Omprakash v. State of Rajasthan, 2021 SCC OnLine Raj 3499] passed by the High Court does not suggest that the Court has considered any of the relevant factors for grant of bail.”
In Ashok Dhankad v. State NCT of Delhi, 2025 SCC OnLine SC 1690, the Supreme Court summarised the principles that are applicable to an appeal granting bail, vis-a-vis, the one seeking cancellation of bail as under:
“19.The principles which emerge as a result of the above discussion are as follows:
(i)An appeal against grant of bail cannot be considered to be on the same footing as an application for cancellation of bail;
(ii)The Court concerned must not venture into a threadbare analysis of the evidence adduced by prosecution. The merits of such evidence must not be adjudicated at the stage of bail;
(iii)An order granting bail must reflect application of mind and assessment of the relevant factors for grant of bail that have been elucidated by this Court. [See: Y v. State of Rajasthan (Supra); Jaibunisha v. Meherban & Ors and Bhagwan Singh v. Dilip Kumar @ Deepu]
(iv)An appeal against grant of bail may be entertained by a superior Court on grounds such as perversity; illegality; inconsistency with law; relevant factors not been taken into consideration including gravity of the offence and impact of the crime;
(v)However, the Court may not take the conduct of an accused subsequent to the grant bail into consideration while considering an appeal against the grant of such bail. Such grounds must be taken in an application for cancellation of bail; and
(vi)An appeal against grant of bail must not be allowed to be used as a retaliatory measure. Such an appeal must be confined only to the grounds discussed above.”
Recently, in Sarju Prasad v. State of U.P. & Anr, 2026 SCC Online SC 334, the above principles have been reiterated by the Supreme Court.
Applying the above principles to the facts of the present case, we find that the learned Trial Court has remained alive to the considerations as prescribed in Section 43D(5) of the UA(P) Act while considering the application of the respondent for being released on bail. The learned Trial Court rightly carried out an exercise to reach a conclusion if the material on record makes the accusations against the respondent prima facie true. The order of the learned Trial Court was neither final conclusion on the evidence nor intended to discharge the respondent. The subsequent order framing charge against the respondent, therefore, is not relevant for the consideration of the appeal filed by the appellant herein, however, at the same time, we would note the observation made by a learned Single Judge of this Court in a challenge against that order, which we reproduce hereinunder:
“4.In particular, Mr. Venu submits that the testimony of Tariq Hajam, which has been referred to in the aforesaid paragraphs, does not concern the present petitioner but relates to a co-accused. In this regard, attention is drawn to paragraphs 54 and 54.1 of the impugned judgment, wherein the statement of the very same witness, Tariq Hajam, has been relied upon specifically against A-3, namely Bilal Ahmed Mir. Mr. Venu further submits that the reliance placed on the testimony of Tariq Hajam while considering the case of the present petitioner is, therefore, misplaced. In support of this submission, Mr. Venu has handed over in Court the statement of Tariq Ahmad (PW-256/1), and the same is taken on record. Upon a prima facie perusal of the same, it does not appear to make any reference to the present petitioner.”
Though the allegations against the respondent are grave, the same have to be tested in Trial, which is not likely to conclude anytime soon, given the number of witnesses cited by the prosecution and remaining to be examined.
Keeping in view the parameters and principles to be applied while exercising our jurisdiction in an appeal against the order granting bail, we find no merit in the present appeal. The same, accordingly, stands dismissed.
We make it clear that any observation on merits of the case of the prosecution made by the learned Trial Court in its impugned order or by us in the present judgment, should in no manner influence the learned Trial Court in deciding the case of the prosecution against the respondent in Trial.
There shall be no order as to costs.