Bombay High Court

Ms.Jyoti Babasaheb Chorge vs State Of Maharashtra on 3 October, 2012

Bench: A.M. Thipsay

                                     1/26                     BA 1020 AND 1066-12

    Tilak

            IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION




                                                                           
            CRIMINAL BAIL APPLICATION NO. 1020 of 2012




                                                   
    Ms.Jyoti Babasaheb Chorge                       ...     Applicant
         Versus
    State of Maharashtra                            ...     Respondent




                                                  
                                        ...

    Mr.Mihir Desai i/b Mr.Chetan Mali, Advocate for the applicant in 




                                      
    Criminal Bail Application No.1020 of 2012.
                        
    Ms.Rohini   Salian,   Special   Public   Prosecutor   with   Mr.S.R.Shinde, 
    APP for the State.
                       
                                      WITH
            CRIMINAL BAIL APPLICATION NO. 1066 of 2012
      


    Ms.Sushma Hemant Ramtekke                       ...     Applicant
   



      versus
    State of Maharashtra                            ...     Respondent


                                        ...





    Mr.Sudeep Pasbola with Ms.Susan Abraham, Mr.Ram Pawade and 
    Rahul Arote i/b Mrs.Sharmila Kaushik for the applicant. 

    Ms.Rohini   Salian,   Special   Public   Prosecutor   with   Mr.S.R.Shinde, 





    APP for the State.


                        CORAM : ABHAY M. THIPSAY, J.

                          DATED : October 3,          2012





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    ORAL ORDER:- 




                                                                                  
    1              These two applications can be conveniently disposed of

by a common order, as the applicants are the accused in one and the

same case. i.e. Sessions Case No.655 of 2011 pending before the

Additional Sessions Judge, at Sewree, Mumbai.

2 The applicant Jyoti Chorge - (in Bail Application

No.1020 of 2012) is the Accused No.4, while the applicant Sushma

(in Bail Application No.1066 of 2012) is the Accused No.2 in the

said case. The case is in respect of offences punishable under

sections 387 IPC, 419 IPC, 465 IPC, 467 IPC, 468 IPC, 471 IPC read

with section 120B of the IPC, and also in respect of offences

punishable under section 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39,

40(2) of the Unlawful Activities (Prevention) Act 1967, as amended

upto 2008 (hereinafter referred to as 'UAP Act' for the sake of

brevity). There are totally seven accused who have been arrested in

the said case and eight more are said to be absconding and wanted.

3 The applicants are alleged to be the members of the

Communist Party of India (Maoist) which is a Terrorist Organization.

3/26 BA 1020 AND 1066-12

The Central Government has declared it to be so by a notification

issued on 22 June 2009 whereby the said Organization was enlisted

in the schedule appended to the said Act.

The prosecution case is that on 25 April 2011, on

certain information, the Anti Terrorism Squad, which is the

Investigating Agency in the present case, arrested one Angela

Sontakke @ Angela Teltumbde (Accused No.1 in this case). Certain

incriminating articles which are said to be provocative publicity

material etc. were found with her. When she was interrogated, she

led the police to her house i.e. a room where she was residing with

the Accused No.2 Sushma (Applicant in BA No.1066/12). The

Accused No.2 was present in the said room. The said room was

searched and some laptops, mobile handsets, some audio and video

cassettes which are said to be the publicity material of the

Organization i.e. Communist Party of India (Maoists) were found in

the said room. The accused no.2 Sushma was also apprehended.

On the interrogation of the accused no.1, and the

applicant Sushma, some further information was received by the

Investigating Agency. On that basis, a trap was laid at a PMT bus

4/26 BA 1020 AND 1066-12

stop; and on 27 April 2011, the Accused No.4 Jyoti (Applicant in

BA 1020/12), and another accused - Accused No.3 Nandini

Panjabrao Bhagat @ Jeny were apprehended. The applicant Jyoti

was found in possession of blue colour travel bag containing mobile

handset with sim card, a battery, some literature of the Communist

Party of India (Maoist) Organization. The said co-accused Nandini

Bhagat was found in possession of cash of Rs.1,90,000/-, some CDs,

a fake PAN card and some other articles. After the arrest of the

applicant Jyoti, her residential room at Bhosari was searched. One

Anuradha Sonule - Accused no.5 - was found present in the said

house. She was ill and was therefore removed to the hospital for

medical treatment. During the search of the room where the

applicant Jyoti was residing, some publicity material/literature of

the banned Organization - Communist Party of India (Maoist), some

pocket diaries containing telephone numbers and other details,

mobile sim cards etc. were found.

4 The substance of the allegation against the applicants is

that they are members of a Terrorist Organization i.e. Communist

Party of India (Maoist). It is also alleged that the applicants were

fully aware of the activities of the said Terrorist Organization, and

5/26 BA 1020 AND 1066-12

had knowingly associated with persons indulging into such

activities.

5 I have heard Mr.Sudeep Pasbola and Ms.Sharmila

Kaushik, the learned Advocates for the applicant in BA no.1066 of

2012. I have heard Mr.Mihir Desai, learned Advocate for the

applicant in BA No.1020 of 2012. I have heard Ms.Rohini Salian,

Special Public Prosecutor for the State, at length.

6 With the assistance of the learned counsel, and the

learned Special Public Prosecutor, I have gone through the relevant

parts of the charge-sheet.

7 It is submitted on behalf of the applicants that there is

no prima facie case against them. It is submitted that the applicants

are not shown to be, - or even alleged to be - involved in any acts of

violence, or any terrorist acts. It is submitted that neither the

applicant Jyoti nor the applicant Sushma was found in possession of

any incriminating articles. It is contended that assuming that the

applicants were found in possession of certain books, articles and

literature, that by itself, would not make them members of the

Communist Party of India (Maoists) - a Terrorist Organization.

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    8              Ms.Rohini Salian, the learned Special Public Prosecutor

devoted considerable part of her arguments on highlighting the

dangerous activities of the Organization, Communist Party of India

(Maoist). She submitted that the entire ideology and philosophy of

the said Organization was dangerous, and was 'destroying the

nation'. She submitted that the members of the said Organization

were resorting to violence and indulging into acts threatening the

unity, integrity and sovereignty of India. She submitted that the

police and Government Officials were being attacked and killed by

members of the said Organization which advocated and propagated

violence for achieving its objects. Even in the affidavit-in-reply filed

by the Investigating Officer, there is emphasis mainly on the

activities of the Organization Communist Party of India (Maoist),

and that it aims to 'overthrow the Government of India'. It is

contended that the Maoists or Naxalites resort to violence

committing various serious offences like extortion, abduction,

murders, and demolish government institutions in the areas

occupied by them.

                                            7/26                       BA 1020 AND 1066-12




    9               What are the aims and objects of the said Organization,

and what is the philosophy of the said Organization, need not be

discussed in details, as, that it has been declared as a 'Terrorist

Organization', is not in dispute.

10 The real question what requires determination is,

whether there is a prima facie case of the alleged offences against

the applicants, or any of them.

11 The UAP Act was substantially amended by Act 35 of

2008. Several drastic provisions were introduced by the said

amendment. The learned Special Public Prosecutor referred to

various provisions in the UAP Act and emphasized the definitions of

'unlawful activity', 'unlawful association', and 'terrorist act', as given

in the said Act. She also referred to the provisions of Section 43D of

the UAP Act which curtails the discretion available to the Courts in

the matter of grant of bail, to a large extent.

12 Indeed, the offences punishable under section 17, 18,

18A, 18B, 20, 21, 38, 39, 40(2) of the UAP Act are of a serious

8/26 BA 1020 AND 1066-12

nature, and come within the prohibition imposed by sub-section (5)

of section 43D of the UAP Act.

13 Undoubtedly, from the material collected during

investigation, it does appear, prima facie, that the applicants were in

contact, or had some association with some members or admirers of

the Communist Party of India (Maoists). The applicant Jyoti, it

appears, was found in possession of some literature of the

Communist Party of India (Maoists), including publicity and

propaganda material. She was in the company of the co-accused

Jenny @ Mayuri Bhagat when she was apprehended by the police,

and the said Mayuri @ Jenny was also found in possession of

certain articles, allegedly incriminating, including some cash.

14 As regards applicant Sushma, she was staying in the

same room where the accused no.1 Angela was staying and as

aforesaid, in the said room, a number of articles which are alleged

to be the publicity materials or literature of the Communist Party of

India (Maoists), were found. Further, it appears that she had

9/26 BA 1020 AND 1066-12

secured employment in a different name - Shraddha Omprakash

Gurav, and had also opened bank account in the said assumed

name, with the object of hiding her identity.

15 However, though a number of charges and some

general allegations have been levelled against all the accused, so far

as the applicants are concerned, there is no allegation that they

have, or any of them has, committed a terrorist act. In fact, such

an allegation has not been leveled even against the other accused.

The accusation of having organized a terrorist camp, or having

recruited any person for terrorist acts, has also not been levelled

against any of the present applicants. In any case, there is no

material to support such an allegation against the applicants. There

is also no material to indicate that the applicants, or any of them,

had conspired with any of the other accused to commit a terrorist

act, or to organize a terrorist camp, or to recruit any person for

terrorist act, etc. All said and done, the allegation against the

applicants is of their being members of the terrorist organization

viz. Communist Party of India (Maoist). Such inference against them

10/26 BA 1020 AND 1066-12

is expected to be drawn from the aforesaid material against them.

16 Section 20 of the UAP Act reads as under:-

20.Punishment for being member of terrorist gang or

organization :

Any person who is a member of a terrorist gang or a

terrorist organization, which is involved in terrorist act,

shall be punishable with imprisonment for a term which

may extend to imprisonment for life, and shall also be

liable to fine.

17 Indeed, the section is widely worded. It lays down that

a mere membership of a terrorist gang or organization which is

involved in terrorist act would invite punishment: and that too, a

drastic punishment inasmuch as the imprisonment that can be

awarded for being a member of such a gang or organization, can be

for life. Grant of bail to a person arrested on such a charge would

be difficult in view of the provisions of sub-section (5) of section

43D, as the discretion available to the Courts is curtailed thereby.

18 Because of these drastic provisions, the concept of

'membership' that has been contemplated in section 20 and

11/26 BA 1020 AND 1066-12

incidentally, in section 38 needs to be carefully considered, and

properly interpreted in the light of Article 19 of the Constitution of

India.

19 Article 19 of the Constitution, inter alia, protects the

following rights of citizens:

(a) to freedom of Speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions.

20 Undoubtedly, Article 19(2) empowers the Parliament to

impose, by law, reasonable restrictions on these rights in the interests

of sovereignty and integrity of India. Section 20 has been enacted as

and by way of reasonable restriction on the aforesaid freedoms and

rights, guaranteed by the Constitution. Inasmuch as the said clause

imposes restrictions on the aforesaid freedoms and rights, the

interpretation thereof has to be in consonance with the

constitutional values and principles, and the concept of membership

contemplated by the said section, is required to be interpreted in

the light of the aforesaid freedoms and rights.

                                         12/26                       BA 1020 AND 1066-12


    21             It follows that considering from this point of view, the

membership of a terrorist gang or organization as contemplated by

section 20, cannot be a passive membership. It has to be treated as

an active membership which results in participation of the acts of

the terrorist gang or organization which are performed for carrying

out the aims and objects of such gang or organization by means of

violence or other unlawful means. In her oral arguments,

Ms.Rohini Salian, the learned Special Public Prosecutor submitted

that there was a great danger to the whole nation from the said

Organization, and that the unity and integrity of the nation was

already in danger because of their activities. She submitted that

section 20 of the UAP Act has been deliberately worded very widely

by keeping these aspects in mind. She submitted that mere

association with such type of people, and sharing their ideology

would make a person a member of their organization.

22 It, therefore, becomes necessary to examine the legal

position in that regard, by referring to the case-law.



    23             In   Arup  Bhuyan  Vs.  State  of  Assam,  (2011) 3 SCC 

    377,     Their   Lordships   of   the   Supreme   Court   of   India   had   an 





                                         13/26                       BA 1020 AND 1066-12

occasion to deal with the aspect of membership of a

banned/terrorist organization. In that case, the appellant before

the Supreme Court was a member of ULFA and had been convicted

of an offence punishable under section 3(5) of the Terrorist and

Disruptive Activities (Prevention) Act 1987 (hereinafter referred to

as 'TADA Act' for the sake of brevity). The provisions of the said

section are in pari materia with the provisions of section 20 of the

UAP Act (except for a variation that a minimum sentence is

prescribed for the offence under section 3(5) of TADA, which is

immaterial for our purpose). Their Lordships noted that section

3(5) of TADA made mere membership of a banned organization

criminal. Their Lordships observed that even assuming that the

appellant was a member of ULFA, it had not been proved that he

was an active member, and not a mere passive member. It was

observed that

"Mere membership of a banned organization will not

incriminate a person unless he resorts to violence or

incites people to violence or does an act intended to

create disorder or disturbance of public peace by

14/26 BA 1020 AND 1066-12

resort to violence (see also the Constitution Bench

judgment of this Court in Kedar Nath Singh Vs.

State of Bihar AIR para 26) (Emphasis supplied)

(Paragraph No.9 of the reported judgment)

24 Their Lordships went on to quote the following

observations of the US Supreme Court in Brandenburg Vs. Ohio,

395 US 444(1969), which go a step further.

".......... mere advocacy or teaching the duty,

necessity, or propriety of violence as a means of

accomplishing political or industrial reform, or

publishing or circulating or displaying any book or

paper containing such advocacy, or justifying the

commission of violent acts with intent to exemplify,

spread or advocate the propriety of the doctrines of

criminal syndicalism, or to voluntarily assemble with a

group formed 'to teach or advocate the doctrines of criminal syndicalism' is not per se

illegal. It will become illegal only if it incites to

imminent lawless action."

            (Paragraph No.10 of the reported judgment)





                                   15/26                        BA 1020 AND 1066-12


    25          Their   Lordships   of   the   Supreme   Court   of   India

expressed agreement with the aforesaid views, and opined that the

same would apply to India also, as the fundamental rights in Indian

Constitution are similar to the bill of rights in the US Constitution.

Their Lordships ultimately concluded as follows:-

"In our opinion, Section 3(5) cannot be read literally

otherwise it will violate Articles 19 and 21 of the

Constitution. It has to be read in the light of our

observations made above. Hence, mere membership

of a banned organization will not make a person a

criminal unless he resorts to violence or incites

people to violence or creates public disorder by

violence or incitement to violence."

(Emphasis supplied)

(paragraph 12 of the reported judgment)

26 Even prior to the aforesaid Judgment, the Supreme Court of

India had an occasion to consider a similar question i.e. in State of

Kerala Vs.Raneef, (2011)1 SCC 784. In that case,the Kerala High

Court had granted bail to one Dr.Raneef - respondent before the

Supreme Court, who was, inter alia, accused of having committed

offences punishable under various provisions of IPC, the Explosive

16/26 BA 1020 AND 1066-12

Substances Act and the UAP Act. The allegation was that the said

respondent was a member of the Popular Front of India (P.F.I),

alleged to be a terrorist organization. Their Lordships noted that

there was till then, no evidence to prove the P.F.I to be a terrorist

organization, but observed that even assuming it to be so, whether

all members of the said organization can be automatically held to

be guilty, would need consideration. Their Lordships referred to the

observations made by the US Supreme Court in Scales vs. United

States, 367 U.S. 203, distinguishing 'active knowing membership

and 'passive, merely nominal membership' in a subversive

organization. The following observations of the US Supreme Court

were quoted with approval:-

The clause does not make criminal all association

with an organization which has been shown to engage

in illegal activity. A person may be foolish, deluded,

or perhaps mere optimistic, but he is not by this

statute made a criminal. There must be clear proof

that the Defendant specifically intends to

accomplish the aims of the organization by resort to

violence. (Emphasis supplied)

17/26 BA 1020 AND 1066-12

27 Again, the following observations of US Supreme Court

in Elfbrandt Vs. Russell, 384 US 17 19 (1966) were also quoted:

Those who join an organization but do not share its

unlawful purpose and who do not participate in its

unlawful activities surely pose no threat, either as

citizens or as public employees. A law which applied to

membership without the 'specific intent' to further the

illegal aims of the organization infringes unnecessarily

on protected freedoms. It rests on the doctrine of

'guilt by association' which has no place here.

(Emphasis supplied)

The Supreme Court of India observed that those observations would

apply in India too. It said:-

"We are living in a democracy, and the above observations apply to all democracies".

28 A reference may also be made to another judgment of

the Supreme Court of India in Indra Das Vs. State of Assam

(2011) 3 SCC 380. In that case, the appellant before the Supreme

Court had been convicted of an offence punishable under section

3(5) of TADA. Their Lordships referred to the decision in Arup

18/26 BA 1020 AND 1066-12

Bhuyan's case (supra) and reiterated the observations made

therein. Support to the views expressed by Their Lordships was

derived from several decisions of the US Supreme Court, including

those referred to earlier.

29 The aforesaid discussion leaves no manner of doubt

that passive membership is not what is contemplated by section 20

of the UAP Act. It is very clear from the observations made by the

Supreme Court that if section 20 were to be interpreted in that

manner, it would at once be considered as violative of the provisions

of section 19 of the Constitution of India, and would be struck

down as ultra vires . In fact, Their Lordships of the Supreme Court

of India have interpreted the concept of membership as an active

membership to save the relevant provision from being declared as

unconstitutional.

30 The conflict between the issues of public order and

social security, on one hand, and the issues of personal freedoms and

liberty on the other hand, which sometimes arises, often puts the

Courts in a dilemma. However, the judicial pronouncements always

seem to be striving for a delicate balance in such conflict. The

19/26 BA 1020 AND 1066-12

curtailment of civil liberties and freedoms guaranteed by the

constitution is held permissible only where the acts in question

would involve a tendency to create an imminent danger of

disturbance of law, or where the acts would amount to a clear and

imminent incitement to violence.

31 It is in the light of the aforesaid discussion that

the case of the applicants is required to be considered. The only

allegation against the applicant Jyoti is that she came to be arrested

while acting as a courier for the co-accused, and was found in

possession of a bag containing a mobile handset and various types

of publicity literature. It is on this basis it is submitted that this

shows the involvement of the applicant with a banned organization.

i.e. Communist Party of India (Maoist).

32 Even in case of the applicant Sushma, a similar affidavit

in reply has been filed wherein the emphasis is on the

dangerousness of the activities carried out by the said Organization. It

is submitted that certain objectionable articles were recovered from

the room where the applicant Sushma was residing with the

accused no.1 Angela.

                                          20/26                       BA 1020 AND 1066-12




    33             On a careful consideration of the material against the

applicants, the contents of the affidavit in reply, and the oral

arguments advanced by the Special Public Prosecutor, it is clear that

there is no material to establish any nexus between the applicants

and some of the leaders/workers of the said organization who are

allegedly actually indulging into various violent activities and

crimes. There is not even an allegation that the applicants, or any

of them had, at any time, met any such persons and had agreed to

do any illegal acts. The applicants are not alleged to have handled

any arms, weapons or any explosive substances or to have given

incitements to commit any particular violent or unlawful act.

Though some literature was allegedly found with the applicant

Jyoti, there is nothing to show that the said literature was banned

by an order under section 95 of the Code of Criminal Procedure, or

any other law. Thus, basically the allegations against the applicant

is that they are sympathizers of the Maoist philosophy, and that they

are intending to, or likely to, play an active role in the organization

in future.

                                          21/26                        BA 1020 AND 1066-12


    30             That   the   possession   of   certain   literature   having   a

particular social or political philosophy would amount to an

offence, though such literature is not expressly or specifically

banned under any provision of law, is a shocking proposition in a

democratic country like ours. A feeble attempt to put forth such a

proposition was made by the Learned SPP in the oral arguments.

Such a proposition runs counter to the freedoms and rights

guaranteed by Article 19 of the Constitution. In this regard, a

reference may also be made to a decision of the Gujarat High Court,

on which reliance has been placed by Shri Mihir Desai. (Criminal

Miscellaneous Application Nos.12435 to 12437 and other connected

applications, decided on 18.11.2010). The applicants therein had

been alleged to be in contact with a person involved in Naxal

movement and serious charges of offences punishable under Section

121-A, 124-A, 153-A, 120-B etc. of the IPC were leveled against

them along with offences punishable under Sections 38, 39 and 40

of the UAP Act (as it stood then). Certain documents such as

agenda of a meeting, in which one of the items was to pay homage

to a dead Naxalvadi who was killed in encounter and some

literature about revolution and lessons of Communist Party of India

(Maoists / Leninists) containing, inter alia, features of Guerrilla

22/26 BA 1020 AND 1066-12

Warfare etc.was seized from the applicants. While releasing the

applicants on bail, the High court observed that the seizure of the so

called incriminating material, by itself, cannot show participation in

an activity prohibited by law. It was held that mere possession of

such literature, without actual execution of the ideas contained

therein, would not amount to any offence.

31 The applicants are young persons. The applicant Jyoti

is of 19 years and the applicant Sushma is of 26 years. They are in

custody since April 2011. It appears that they come from a poor

family. A number of persons are influenced, and get attracted

towards the Maoist Philosophy because of the oppression of the

weaker section which they might have experienced in the social set

up. The applicants also, like a number of such persons, might have

been influenced and impressed by the Maoist philosophy. It has

been recognized even by the committees appointed by the

government to study the problem of naxalites that it is the social,

political, economic and cultural discrimination faced by the poor,

that is throwing a large number of discontended people towards the

Maoists. It is impossible to hold that all such persons are to be

treated as members of a terrorist organization, or that they are

23/26 BA 1020 AND 1066-12

liable to be punished for having some faith in such philosophy, or for

having sympathy for those who propagate such philosophy. It is in

this context, that the concept of active membership and passive

membership has been judicially evolved.

33 Since none of the applicants is said to have indulged

into any acts of violence or of being a party to any conspiracy for

committing any particular violent act or crime, they cannot be held,

prima facie, to have committed the offences in question. Though it

appears that they had come in contact with the members of the said

organization, and were perhaps learning about the philosophy and

ideology of the said organization, they cannot be prima facie held as

offenders. Even if they were impressed by the said philosophy and

ideology, still they cannot be said to be members - much less such

members as would attract the penal liability - of the said

organization. There does not seem to be a prima facie case against

the applicants even in respect of an offence punishable under section

38 of the UAP Act, which expands the scope of the criminal liability

attached to the membership of a terrorist organization, inasmuch as,

the mens rea in that regard, should necessarily be with respect to

such activities of the organization as are contemplated in section 15,

and made punishable by sections 16 to 19 of the UAP Act.

                                         24/26                       BA 1020 AND 1066-12




    34             Mr.Mihir   Desai,   learned   counsel   for   the   applicant   in

Bail Application No.1020 of 2012 rightly submitted that the case

against the applicant is based on the assumption or apprehension

that later on, they may become active workers of the said

organization. In fact, in the course of her arguments, the learned

Special Public Prosecutor also urged that the applicants should not

be released on bail as in future they were likely to resort to violence

and take active part in attaining the goals of the said organization. In

my opinion, on such a ground, and on such apprehension, the

applicants cannot be denied bail.

35 Considering all the aforesaid aspects, I am inclined to

release the applicants on bail. However, to ensure that the

applicants would face their trial and would be available to the

police when necessary, it would be necessary to impose appropriate

conditions on them. In this regard, at this stage, I have heard the

learned counsel for the applicants. It is submitted that the

applicants would be ready to attend the police station, in the area

within the jurisdiction, of which they would reside.

                                           25/26                        BA 1020 AND 1066-12


    36             The learned counsel for the applicant Jyoti states that

the applicant would attend the Dhankavdi Police Station, if so

directed by the Court, till the disposal of the case against her.

Learned counsel for the applicant Sushma submits that the

applicant is a resident of Nagpur, and she would attend the Ajni

Police Station, within the local jurisdiction of which she would be

residing. In the result, the following order is passed:-

The Applications are allowed.

Operative Order in Bail Application No.1020 of 2012

The applicant is ordered to be released on bail in the sum of

Rs.30,000/- with one surety in like amount, or two sureties in the

sum of Rs.15,000/- each, on the condition that she shall report to

Dhankavdi Police Station, Pune, on every Sunday, till the disposal of