"Supporting an ideology of a banned organization of course is different from waging a war or attempting to wage a war or abetting to wage a war", observed the High Court

Holding that supporting the ideology of Islamic State of Iraq and Syria(ISIS) will not amount to waging war against Government of an Asiatic power in alliance with India, the High Court of Kerala set aside the conviction of a woman under Section 125 of the Indian Penal Code. Section 125 punishes waging war against Government of an Asiatic power in alliance with India, or the attempt to do so, with imprisonment for life.

The HC Division Bench of Justices A M Shaffique and P Somarajan however sustained her conviction and sentence under Unlawful Activities Prevention Act for associating with ISIS, which is a banned organization under the Act.

The Court was considering an appeal filed by Yasmeen Mohammend Zahid, a 30 year old woman of Bihar nativity, who was arrested from Delhi Airport while attempting to travel to Afghanistan along with her child to join ISIS. The Passport authorities in Delhi Airport acted upon a look out circular issued by Kerala police regarding attempts of few persons from Kasargod District in Kerala to exit India to join ISIS.

The case had its genesis from a complaint made by one T.P Abdulla on July 10, 2016 that his son Abdul Rashid along with his wife and their child were missing for about one and half months. Forty other persons were also missing from the locality. The preliminary investigation revealed that the missing persons had been swayed by ISIS ideology and left country to join the organization. Yasmeen was arrested in Delhi on August 1, 2016.

Later, the National Investigation Agency(NIA) took over the investigation and found that fifteen persons had left the country. It was also found that from 2015 onwards, all these persons were regularly meeting for classes about Jihad. According to the NIA, Abdul Rashid was the lynch-pin of the conspiracy. He was made the first accused, and Yasmeen, who was stated to be Rashid's second wife, was made the second accused. Thirteen others were made accused 3 to 15. However, all the accused except Yasmeen had left the country, and the case proceeded against her alone as the second accused.

The NIA Special Court, Ernakulam found that Yasmeen had supported ISIS and had raised funds for it, and had attempted to wage war against an Asiatic power and convicted her under Sections 120B, 125 IPC and Sections 38,39 and 40 of UAPA.

While considering the appeal against the judgment of Special Court, the High Court concluded from testimonies of witnesses that Yasmeen had attended classes taken by the 1st accused with reference to IS and the Jihad. There was evidence of 1st accused and Yasmeen staying together at different hotels in Patna, indicating close relationship between them. There was also evidence of 1st accused regularly sending her money from Afghanistan. The mobile phone seized from her had videos relating to ISIS, audio speech of militant preacher Anwar Alwaki, and a brief guide to Islamic State and women of Islamic State.

However, the High Court held that there was no evidence to show that Yasmeen had attempted to wage war with an Asiatic power in alliance with India. "Though there is evidence to prove that she had attended classes of Jihad propagating IS ideology by A1, there is absolutely nothing to indicate that she had taken any steps to wage a war or attempted to or abetted waging of such war against any Asiatic Power in alliance with or at peace with Government of India. So conviction of the appellant under Section 125 cannot be sustained without any such material.", the Court said.

"What we could deduce is that she had maintained a relationship with A1 and supported his ideology. Supporting an ideology of a banned organization of course is different from waging a war or attempting to wage a war or abetting to wage a war. There is no evidence to prove that she was involved in any such activity", the Court further held.

However, the Court held that her association with the 1st accused and her attempts to go to Afghanistan to propagate ISIS ideology made her guilty under Section 38(1) of UAPA. Section 38(1) of the UAP Act punished any person who associated himself or professed to be associated with any terrorist organization with intention to further its activities for the offence relating to membership of a terrorist organization. But the Court held that she had not aided or raised funds for ISIS and therefore set aside her conviction under Section 39 and 40 of UAPA. Regarding this, the Court observed "This is not a case where she was raising funds for a terrorist organization. There is no such evidence. The evidence is that she received funds from A1"

She was also found to have committed criminal conspiracy and her conviction under Section 120B IPC was upheld.

To determine the sentence, the Court considered the fact that the appellant was drawn to the ideology under the influence of the 1st accused and that she was not the one who started propagating the ideology. "Her intention was to join him on account of the relationship she maintained with him or may be influenced by the ideology propagated by him", observed the Court.

Taking a lenient view, the Court sentenced her to undergo rigorous imprisonment for 1 year for the offence punishable under Section 120B of the IPC and rigorous imprisonment for 3 years for offence under Section 38 of the Act, modifying the sentence of 7 years awarded by the trial Court. The Court clarified that the sentences will run concurrently.

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