Quoting Mahatma Gandhi that "Terrorism and deception are weapons not of the strong, but of the weak," the Rajasthan High Court on October 3 denied bail to five accused booked under the UAPA in the 2022 murder of Udaipur tailor Kanhaiya Lal Teli.

The bench said that the gravity of the alleged offence, the specific roles attributed to them in the larger criminal conspiracy and the nature of the alleged terrorist act disentitle them to bail at this stage.

The Division Bench comprising Chief Justice Sanjay K. Agrawal and Justice Sameer Jain dismissed the batch of criminal appeals and upheld the Special NIA Court's orders rejecting their bail pleas.

The Bench also drew upon the famous "Shakti Aur Kshama" poem by Ramdhari Singh Dinkar, quoting:

“सहनशीलता, क्षमा, दया को तभी पूजता जग है,

बल का दर्प चमकता उसके पीछे जब जगमग है।

क्षमा शोभती उस भुजंग को जिसके पास गरल हो,

उसको क्या जो दंतहीन, विषरहित, विनीत, सरल हो।”

The Court's opening observations set the tone for its examination of the bail pleas, emphasizing that the present case could not be viewed as an ordinary criminal offence.

It observed that "terrorism is not merely an assault on a physical body" but a “calculated, theatrical assault on the psychological sovereignty of the country.”

According to the Bench, the ultimate objective of terrorism is not merely to commit an offence but the "assassination of peace”, as it seeks to replace the “Rule of Law” with the “Rule of Fear.”

In its order, the Court noted that upon the perusal of the detailed charge-sheet of the NIA, the accusations against the appellants regarding their participation in the conspiracy were prima facie made out.

About Kanhaiya Lal Murder And NIA Probe

The case arises from the brutal murder of Kanhaiya Lal Teli inside his shop in Udaipur on June 28, 2022.

Lal was murder was in retaliation for his social media post, which was in solidarity with ex-BJP spokesperson Nupur Sharma, who had made comments about the Prophet during a live television debate. The eight-year-old son of the deceased, Kanhaiya Lal, had shared a social media post in support of Nupur Sharma from his mobile.

The attackers filmed the crime and shared it on social media, threatening Prime Minister Narendra Modi and taking responsibility for the murder.

The assailants allegedly recorded the incident and circulated videos of the murder on social media, with assertions intended to promote communal enmity and spread terror.

The NIA subsequently took over the investigation and registered the case under Sections 452, 302, 153A, 153B, 295A and 34 IPC and Sections 16, 18 and 20 of the UAPA.

The five appellants before the High Court were Wasim Ali (A-6), Muslim Khan (A-9), Mohsin Khan (A-3), Mohammad Mohsin (A-5) and Asif Hussain (A-4). The trial court framed charges against the accused in January and February 2024.

What did the Accused argue?

The accused argued that there was no cogent evidence showing that they were present in or around Kanhaiya Lal's shop during the period preceding the murder. They also challenged the prosecution case concerning their alleged roles in the conspiracy and relied on the prolonged period of incarceration to seek bail.

The NIA opposed the pleas, submitting that the appellants had played “an active, indispensable, and integral role” in the alleged crime. According to the agency, the murder was the culmination of a deep-rooted, pre-planned conspiracy and the subsequent circulation of the videos was intended to instil fear and terror in society.

The NIA also relied upon witness statements, call-detail records, video recordings and recoveries of weapons as concrete material supporting its case.

What did the High Court observe?

The High Court examined the stringent bail restrictions under Section 43D(5) of the UAPA, which prohibits release on bail where, upon perusal of the case diary or prosecution report, there are reasonable grounds for believing that the accusation is prima facie true.

Relying upon the Supreme Court's jurisprudence, including NIA v. Zahoor Ahmad Shah Watali, the Bench reiterated that a court deciding bail under Section 43D(5) cannot conduct a mini-trial or meticulously weigh the evidence.

The prosecution material has to be examined at face value to determine whether the accusations are prima facie true.

At the same time, the High Court stressed that the inquiry must remain accused-specific. The role attributed to each accused must have a real and meaningful nexus with the alleged unlawful or terrorist activity, rather than mere association or peripheral presence.

The accused also invoked their prolonged incarceration and Article 21 rights, contending that the trial would take considerable time.

The Court, however, found that the trial was progressing actively and rapidly. The NIA submitted that the witness list had been reduced from 180 to 89, with nearly 30 material witnesses already examined. The Court found that these circumstances did not support the argument that the trial was stalled or unlikely to conclude within a reasonable time.

Ultimately, the Bench held that the gravity of the offence, specific roles attributed to the appellants in the larger criminal conspiracy and the heinous nature of the terrorist act disentitled them to bail at this stage.

"We are of the view that the brutal murder by entering the shop of the deceased-victim in broad daylight, coupled with the recording and dissemination of the act of such a grave and heinous nature to create communal disharmony and terror, strikes at the very foundation of the State. Criminal conspiracy for such an organized terror activity has a profound and devastating impact on society at large, far exceeding that of an individual, ordinary crime."

The Court accordingly affirmed the Special NIA Court's orders dated October 9 and November 12, 2024 and dismissed the appeals. It expressly clarified that it was not commenting upon the final merits of the evidence, which remain subject to trial.

Case title: Wasim Ali v National Investigation Agency (and connected criminal appeals)

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