The advocate has argued before the court that his social media post was critical of the turmoil in Afghanistan.
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ON Tuesday, a division Bench of the Supreme Court comprising Justices Sanjiv Khanna and M.M. Sundresh restrained the Assam Police from arresting an advocate facing charges under the stringent Unlawful Activities (Prevention) Act, 1967 (UAPA), for allegedly posting a message on a social media platform in support of the Taliban during the Afghanistan crisis of 2021.
The Bench directed that the petitioner, Taher Ahmed Barbhuiya, not be arrested till the next date of hearing, while ordering the listing of the matter in November.
The Bench, however, directed Barbhuiya to appear before the investigation officer on May 18 at 11 a.m. Besides, it directed the state government to file a counter affidavit within six weeks from today; the rejoinder affidavit, if any, could be filed by Barbhuiya within four weeks from the receipt of the counter affidavit.
The Supreme Court on July 19 last year had restrained the Assam Police from filling a chargesheet against Barbhuiya for his social media post.
When the matter was taken up for hearing today, senior advocate Nalin Kohli, for the Assam government, alleged that the petitioner had been evasive in his reply to the questions by the investigation agency.
Countering Kohli, senior advocate Anand Grover, appearing for Barbhuiya, submitted that the petitioner wasn't evasive at all, and that he did join the investigation and answered all the questions put to him. He added that Barbhuiya's SIM card and phone were also seized by the investigation agency.
Barbhuiya approached the Supreme Court against the Gauhati High Court's refusal to quash the first information report (FIR) against him for offences under Sections 120B (punishment of criminal conspiracy), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 505(1)(c) (statements conducing to incitement of offence by a class or community against another) and 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) of the Indian Penal Code, 1860, read with Section 39 (offence relating to support given to a terrorist organisation) of the UAPA.
In August 2021, a complaint was made to the Assam Police alleging that Barbhuiya, amidst the political crisis in Afghanistan, had posted on Facebook that "A history has been created, long live Taliban", following which an FIR was filed against him. The complaint also alleged that the post had praised and glorified the Tehreek-e-Taliban Pakistan (TTP), a designated terrorist organisation that has been responsible for multiple attacks on government and civilian attacks in Pakistan.
Barbhuiya had denied creating the post on Facebook, submitting before the high court that he had instead posted criticism of the turmoil in Afghanistan, referring to a picture of an Afghan handing over his child to the American army as follows: "Painful, frustrating, shameful— an Afghan citizen is handing over his child to American army leaving for America."
The petition, filed through advocate-on-record Fuzail Ahmed Ayyubi, contended that the high court, without scrutinising the facts, dismissed the petition seeking quashing of the FIR.
The plea stated that Barbhuiya had not made any post regarding TTP, which is mentioned in the list of sanctioned undertakings and entities established and maintained pursuant to a United Nations Security Council (UNSC) Resolution, and supporting which attracts provisions under the UAPA.
The petition further stated that even if it was assumed that the petitioner had posted any such post, provisions of the UAPA were still not attracted as the Taliban in Afghanistan (as a separate and different organisation from TTP) is a political movement presently part of the ruling national government of Afghanistan, which is not a proscribed organisation either under the UAPA or as per the UNSC.