Kerala High Court
Union Of India vs Union Of India on 4 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE K.HARIPAL
MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942
CRL.A.No.705 OF 2020
CHALLENGING COMMON ORDER DATED 09.09.2019 IN CRL. M.P. NO. 56 OF
2020 IN S.C. NO. 1/2020/NIA OF THE SPECIAL COURT FOR TRIAL OF NIA
CASES AT ERNAKULAM
APPELLANT/RESPONDENT-COMPLAINANT:
UNION OF INDIA
REPRESENTED BY NATIONAL INVESTIGATION AGENCY,
4TH CROSS ROAD, GIRINAGAR, KADAVANTHARA,
KOCHI-682020
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENT/PETITIONER/2ND ACCUSED:
THWAHA FASAL
S/O. ABUBACKER, KOTTUMMAL HOUSE,
MOORKANAD, PANTHEERANKAVU,
KOZHIKODE-673 019
BY ADV. SRI.K.S.MADHUSOODANAN
BY ADV. SRI.THUSHAR NIRMAL SARATHY
BY ADV. SRI.M.M.VINOD KUMAR
BY ADV. SRI.P.K.RAKESH KUMAR
BY ADV. SRI.K.S.MIZVER
BY ADV. SRI.M.J.KIRANKUMAR
BY ADV. SRI.S RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2020,
ALONG WITH CRL.A.NO.706/2020, THE COURT ON 04-01-2021 DELIVERED
THE FOLLOWING:
Crl.A.Nos.705 & 706 of 2020 :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE K.HARIPAL
MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942
CRL.A.No.706 OF 2020
CHALLENGING COMMON ORDER DATED 09.09.2019 IN CRL. M.P. NO. 55 OF
2020 IN S.C. NO. 1/2020/NIA OF THE SPECIAL COURT FOR TRIAL OF NIA
CASES AT ERNAKULAM
APPELLANT/RESPONDENT-COMPLAINANT:
UNION OF INDIA
REPRESENTED BY NATIONAL INVESTIGATION AGENCY,
4TH CROSS ROAD, GIRINAGAR, KADAVANTHARA,
KOCHI-682020
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENT/PETITIONER/1ST ACCUSED:
ALLAN SHUAIB
S/O. MOHAMMED SHUAIB
MANIPOORI HOUSE, PALATTU NAGAR
THIRUVANNUR,
KOZHIKODE-673029.
BY ADV. SRI.S.RAJEEV
BY ADV. SRI.K.K.DHEERENDRAKRISHNAN
BY ADV. SRI.V.VINAY
BY ADV. SRI.D.FEROZE
BY ADV. SRI.K.ANAND (A-1921)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2020,
ALONG WITH CRL.A.NO.705/2020, THE COURT ON 04-01-2021 DELIVERED
THE FOLLOWING:
Crl.A.Nos.705 & 706 of 2020 :3:
JUDGMENT
Haripal, J.
These are appeals preferred under Section 21(4) of the National
Investigation Agency Act, Act 34 of 2008, challenging the correctness of
the common order passed by the Special Judge for the trial of NIA cases,
Ernakulam in Crl.M.P.Nos.55/2020 and 56/2020 in S.C.No.1/2020/NIA.
The respondents, along with another person by name Usman, who is
absconding, stand charged by the NIA for offences punishable under
Section 120B IPC read with Sections 38 and 39 of the Unlawful
Activities (Prevention) Act, 1967, hereinafter referred to as 'the Act'.
Apart from the above, the second accused, who is the respondent in
Crl.A.No.705/2020, faces allegation under Section 13 of the Act also.
2. The allegation is that, on 01.11.2019 at 6.45 p.m. while the
Sub Inspector of Pantheerankavu police station, Kozhikode and party
were engaged in routine law and order patrol duty, he noticed the
respondents and the said Usman huddled together in darkness on the
veranda of a shop; out of suspicion when the police approached them, the
said Usman ran away and disappeared from the place who has not yet
been nabbed. Investigation of the case against him is continuing. The
police seized objectionable printed and written materials from the
respondents which include violent exhortations for civil war, in tune with
Maoist ideology. They were taken to the police station and Crime
No.507/2019 of Pantheerankavu police station was registered against the
three accused persons alleging offences punishable under Sections 20, 38
and 39 of the Act along with Section 120B IPC. That night itself the
residences of the respondents were searched and more incriminating
materials were traced from their possession. According to the
prosecution, such materials were more volatile, even exhorting secession
of the country after liberating Jammu & Kashmir. Materials creating
unrest in society also could be found out. Thus it became very clear that
the respondents were activists of the banned CPI(Maoist). At the time of
searching the residence of the second accused, he shouted slogans
supporting Maoist ideology. Since the materials found out from the
possession of the respondents were grave enough to pose threat to
national security, by order dated 16.12.2019 the Ministry of Home
Affairs, Government of India entrusted investigation of the case with the
NIA. During the course of investigation, though the respondents had
moved the courts seeking bail, they were rejected by the trial court as
well as this Court. On conclusion of investigation, the final report has
been laid against the respondents and the said Usman alleging offence
punishable under Sections 38 and 39 of the Act read with 120B IPC
besides Section 13 against the second accused.
3. After laying the charge sheet the respondents moved the trial
court again with the said Crl.M.Ps. The learned Special Judge, by the
impugned order, granted them bail, imposing conditions. That order is
now under challenge.
4. We heard Sri.P.Vijayakumar, the learned Assistant Solicitor
General of India and Sri. Arjun Ambalappatta, the learned senior Public
Prosecutor for the NIA besides Sri.S.Rajeev and Sri.K.S.Madhusoodanan,
the learned counsel for the respondents.
5. The learned Assistant Solicitor General has raised caustic
criticism against the order under challenge. According to him, the
learned Special Judge lost sight of the purport of the Act and showed
over-enthusiasm in granting bail to the respondents; the court was
proceeding on wrong assumptions. At the stage of considering the
application for bail, the learned Judge should not have gone deep,
disintegrating all the material pieces of evidence for concluding that there
is no prima facie case in favour of the prosecution. The court has
considered evidence as if in a trial; such detailed analysis was not
warranted, the documents relied on by the prosecution should have been
taken as true and a deeper enquiry is not expected for deciding the
application for bail. Both the counsel representing the appellant
complained that the court has not properly understood the intention of the
legislature. The object of the Act is to prevent unlawful activities; even if
overt acts are not proved, that is not an impediment in finding prima facie
case as far as offences under Sections 38 and 39 of the Act are concerned.
The learned Assistant Solicitor General also complained that the trial
judge was placing reliance on authorities having no bearing in this case.
According to him, even though the decision reported in National
Investigation Agency v. Zahoor Ahmad Shah Watali [AIR 2019 SC
1734] : [(2019) 5 SCC 1] was also relied, it was not properly understood
and applied. He further argued that the learned Special Judge has
mistaken the activities of a terrorist organisation and the gravity of the
offence has been diluted for granting bail. According to him, the
cumulative effect of the materials found out from the possession of the
respondents should not have been overlooked by the court.
6. On the other hand, the learned counsel for the respondents
defended the order of the learned Special Judge. According to them, the
court has granted them bail after eleven months of incarceration. The
import of each and every material relied on by the prosecution has been
examined in the light of Section 43-D(5) of the Act. Counsel for the
second accused/respondent in Crl.A.705/2020 filed a detailed objection
also.
7. Both the learned counsel for the respondents have challenged
the very maintainability of the appeals. According to them, the appeal
memoranda have been signed by the Superintendent of Police, NIA Kochi
and the appeals were presented before court by the Assistant Solicitor
General of India who is not a Public Prosecutor as defined under Section
24(1) of the Code of Criminal Procedure, hereinafter referred to as 'the
Code'. In this connection, the counsel also relied on the decisions of this
Court in State of Kerala v. Krishnan [1981 KLT 839] and Benny P.
Jacob and another v. Rajesh Kumar Unnithan and another [2019
KHC 737]. To meet this contention, the learned Special Prosecutor for
the NIA produced a copy of the Gazette of India dated 12.09.2011.
8. As noticed earlier, the respondents stand charged by the NIA
alleging offence punishable under Sections 38 and 39 of the Act r/w
Section 120B IPC. Apart from the above, the second accused, who is the
respondent in Crl.A.No.705/2020, faces allegation under Section 13 of
the Act as well.
9. It is the common case that the respondents were arrested by
the Sub Inspector of Police, Pantheerankavu police station at 6.45 p.m. on
01.11.2019 from a place by name Kottayithazham in Kozhikode city,
when they were found, along with the absconding accused, in suspicious
circumstances. As they carried some offensive literature, Crime
No.507/2019 was registered and both were remanded to judicial custody.
While so, having regard to the nature and magnitude of the offence
revealed against them, the investigation was taken over by the NIA.
When the investigation was in progress the respondents moved
applications for bail which were rejected by the Sessions Judge,
Kozhikode. Against that order when the respondents moved this Court
under Section 21(4) of the NIA Act, those appeals were dismissed by this
Court as per the judgment reported in Thwaha Fasal and another v.
State of Kerala and others (MANU/KE/5104/2019) in which one of us
(Hariprasad, J) was party. Meanwhile, the charge sheet was laid as
aforestated and thereafter they moved fresh applications for bail before
the Special Judge which were allowed by the impugned common order.
10. In his detailed order, the learned Special Judge, after
considering various aspects and after analysing each and every material
evidence projected against the respondents, concluded that the
prosecution could not make out prima facie case against them, that they
have not indulged in any specific terrorist act or act of violence. In that
view, he allowed the applications and released them on bail imposing
certain conditions. Aggrieved by the same, Union of India represented by
the National Investigation Agency has preferred these appeals.
11. The allegations against the accused are briefly as follow:-
'a) Accused 1 to 3 had knowingly and intentionally,
associated themselves and acted as members of Communist
Party of India (Maoist), proscribed as a terrorist organisation
by the Government of India under Section 35 of the
Unlawful Activities (Prevention) Act, 1967 and included in
the I Schedule to the Act, thereby committed the offence
punishable under Section 38 of the Act;
b) Accused 1 to 3 had knowingly and intentionally,
possessed documents supporting and published by
CPI(Maoist), possessed digital devices and other materials
with the intention of supporting the proscribed terrorist
organisation and propagating its violent extremist ideology
and thereby committed the offence punishable under Section
39 of the Act;
c) Accused 1 to 3 had knowingly and intentionally,
attended various conspiracy meetings along with other
underground part-time and professional members of
CPI(Maoist). They had attended various programmes
organised by the frontal organisations of the proscribed
terrorist organisation, for furthering the objectives of
CPI(Maoist) and thereby committed the offence punishable
under Section 120B of IPC;
d) Accused No. 2, in furtherance of the conspiracy, with
co-accused and others, had knowingly and intentionally,
prepared cloth banners supporting secession of Kashmir from
the Indian Union, for displaying at public place and thus
committed the offence of unlawful activity punishable under
Section 13 of the Act.'
12. It is further stated that 'investigation revealed that A1 and A2
had nurtured Maoist ideology since 2015-16 and had subsequently,
knowingly and intentionally associated with the proscribed terrorist
organisation CPI(Maoist), with the intention of furthering its objectives.
The accused had conspired and propagated the ideology of the terrorist
organisation among their friends, while attempting to radicalize and
recruit such persons into the proscribed organisation. The accused have
conducted clandestine meetings in Kozhikode and Kannur districts,
besides knowingly and intentionally attended various conspiracy
meetings with underground professional members and leaders of
CPI(Maoist) party, like A3. A1 and A2 have also attended various
programmes organised by the frontal organisations of CPI(Maoist), with
the intention of furthering the objectives of the proscribed terrorist
organisation'.
13. It is not disputed that Communist Party of India (Maoist) is an
outfit proscribed under Section 35 of the Act.
14. The argument of the learned counsel for the respondents that
the appeals are not maintainable, can be considered at the outset. It is
true that the learned ASG has not been notified as a Public Prosecutor as
defined under Section 24 of the Code. The appeal memoranda are signed
by the Superintendent of Police, NIA Cochin Unit, who re-registered the
crime in Cochin Unit of the NIA. In that capacity, his name appears in
the list of witnesses as witness No.91. The appeals were presented by the
ASG and Sri. Arjun Ambalappatta in his capacity as the Public
Prosecutor. The notification referred to above dated 12.09.2011
published in the Gazette of India of even date reads thus:-
"MINISTRY OF HOME AFFAIRS
(INTERNAL SECURITY-I DIVISION)
NOTIFICATION
New Delhi, the 12th September, 2011
S.O. 2070(E)- In exercise of the powers conferred by
sub-section (1) of Section 15 of the National
Investigation Agency Act, 2008 (34 of 2008), read
with sub-section (8) of Section 24 of the Code of
Criminal Procedure, 1973 (2 of 1974), the Central
Government hereby appoints Shri Ahmad Khan,
Senior Public Prosecutor, NIA, Shri S K Rama Rao,
Senior Public Prosecutor, NIA, Shri S Abdul Khader
Kunju, Public Prosecutor, NIA and Shri Arjun
Ambalapatta, Public Prosecutor, NIA as 'Public
Prosecutors' for conducting the cases instituted by the
National Investigation Agency in the trial courts,
appeals, revisions or other matters arising out of the
case in revisional or appellate courts established by
law of the country.
[F. No.1-11011/65/2011-IS-IV]
DHARMENDRA SHARMA, Jt.Secy"
In other words, Sri. Arjun Ambalappatta stands appointed as the Special
Public Prosecutor, NIA under Section 24(8) of the Code, and thus entitled
to conduct cases instituted by the NIA, in trial courts, appeals, revisions
or other matters arising out the case in courts established by the law of the
country. Dockets of the appeals bear the names of both the ASG and the
Public Prosecutor. When a Public Prosecutor is appointed under sub-
section (2) or (8) of Section 24 of the Code, there is no point in saying
that, his appointment is without consulting the High Court. Moreover,
Section 15 of the NIA Act also enables the Central Government to
appoint a person, subject to the qualifications provided in sub-section (2),
to be the Public Prosecutor and may appoint one or more persons to be
Additional Public Prosecutor or Additional Public Prosecutors. That
means, even though the ASG is not a Public Prosecutor as defined under
Section 2(u) read with Section 24 of the Code, the challenge against the
maintainability of the appeals cannot be sustained since the appeals are
signed by the Superintendent of Police and presented by the Public
Prosecutor appointed under Section 15 of the NIA Act read with Section
24(8) of the Code.
15. Now, turning to the merits, Sections 13, 38 and 39 of the Act
can be extracted:-
"13. Punishment for unlawful activities.--(1) Whoever--
(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission of,
any unlawful activity, shall be punishable with
imprisonment for a term which may extend to seven years,
and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of
any association, declared unlawful under section 3, after the
notification by which it has been so declared has become
effective under sub-section (3) of that section, shall be
punishable with imprisonment for a term which may extend
to five years, or with fine, or with both.
(3) Nothing in this section shall apply to any treaty,
agreement or convention entered into between the
Government of India and the Government of any other
country or to any negotiations therefor carried on by any
person authorised in this behalf by the Government of India.
38. Offence relating to membership of a terrorist
organisation.--
(1) A person, who associates himself, or professes to be
associated, with a terrorist organisation with intention to
further its activities, commits an offence relating to
membership of a terrorist organisation:
Provided that this sub-section shall not apply where
the person charged is able to prove--
(a) that the organisation was not declared as a terrorist
organisation at the time when he became a member or began
to profess to be a member; and
(b) that he has not taken part in the activities of the
organisation at any time during its inclusion in the First
Schedule as a terrorist organisation.
(2) A person, who commits the offence relating to
membership of a terrorist organisation under sub-section
(1), shall be punishable with imprisonment for a term not
exceeding ten years, or with fine, or with both.
39. Offence relating to support given to a terrorist
organisation.--
(1) A person commits the offence relating to support given to
a terrorist organisation,-
(a) who, with intention to further the activity of a terrorist
organisation,-
(i) invites support for the terrorist organisation, and
(ii) the support is not or is not restricted to provide money or
other property within the meaning of section 40; or
(b) who, with intention to further the activity of a terrorist
organisation, arranges, manages or assists in arranging or
managing a meeting which he knows is-
(i) to support the terrorist organisation, or
(ii) to further the activity of the terrorist organisation, or
(iii) to be addressed by a person who associates or professes
to be associated with the terrorist organisation; or
(c) who, with intention to further the activity of a terrorist
organisation, addresses a meeting for the purpose of
encouraging support for the terrorist organisation or to
further its activity.
(2) A person, who commits the offence relating to support
given to a terrorist organisation under sub- section (1) shall
be punishable with imprisonment for a term not exceeding
ten years, or with fine, or with both."
16. In Thwaha Fasal, quoted supra, referring to Sections 38 and
39 of the Act, this Court observed as follow:-
"13. Section 38, on the other hand, deals with punishment
of a person, who associates himself or professes to be
associated with a terrorist organisation with an intention to
further its activities, thereby commits an offence relating
to membership of a terrorist organisation. Proviso to that
Section may not be relevant at this stage of the case. It is
evident that a person knowingly or consciously associating
with a terrorist organisation and a person who professes to
be associated with a terrorist organisation will be
punishable, if he does so with an intention to further its
activities, as he commits an offence relating to
membership of a terrorist organisation. We are inclined to
think that the words "associated" and "professes to be
associated" occurring in Section 38 of the UA(P) Act are
employed in a broad sense and with a specific purpose.
Anybody indulging in such activities will normally do so
clandestinely or surreptitiously. Contextually therefore, not
only overt actions, but covert actions may also at times
satisfy the ingredients of the Section, provided they were
done knowingly or consciously for the objectives
mentioned in the Section. ...............
14. Section 39 of the UA(P) Act deals with punishment for
support given to a terrorist organisation. On a reading of
the Section, it will be clear that the support must be
intentional and it should be for furtherance of the activity
of a terrorist organisation."
Both are cognate offences. In our view, if there are materials to infer that
the accused have done something to promote or enthuse the activities of a
terrorist organisation or done anything supporting its activities with the
intention to further its activities, these offences are attracted.
17. Offences under Sections 38 and 39 of the Act fall within
Chapter VI of the Act. In this connection, Section 43-D(5) of the Act
reads thus:-
"43D. Modified application of certain provisions of the
Code.- xxx xxx xxx xxx (5) Notwithstanding anything
contained in the Code, no person accused of an offence
punishable under Chapters IV and VI of this Act shall, if in
custody, be released on bail or on his own bond unless the
Public Prosecutor has been given an opportunity of being
heard on the application for such release:
Provided that such accused person shall not be
released on bail or on his own bond if the Court, on a
perusal of the case diary or the report made under section
173 of the Code is of the opinion that there are reasonable
grounds for believing that the accusation against such
person is prima facie true."
In other words, whenever an offence falling under Chapters IV and VI of
the Act is alleged against the accused, on perusal of the case diary or the
final report that there are reasonable grounds for believing that the
accusation against the said person is prima facie true, the Act restrains the
court from releasing him on bail. The Hon'ble Supreme Court in
National Investigation Agency v. Zahoor Ahmed Shah Watali [(2019)
5 SCC 1] has observed as follows:-
"18. A priori, the exercise to be undertaken by the
Court at this stage of giving reasons for grant or non-
grant of bail is markedly different from discussing
merits or demerits of the evidence. The elaborate
examination or dissection of the evidence is not
required to be done at this stage. The Court is merely
expected to record a finding on the basis of broad
probabilities regarding the involvement of the Accused
in the commission of the stated offence or otherwise.
....................................."
According to the Hon'ble Court, the opinion regarding the grant or
otherwise of the bail must be reached by the courts not only in reference
to the accusation in the FIR but also in reference to the contents of the
case diary including the charge sheet and the other material gathered by
the investigating agency. Regarding the application of Section 43-D of
the Act the Court noted thus:-
"18. ................................... Be it noted that the
special provision, Section 43D of the 1967 Act, applies
right from the stage of registration of FIR for offences
under Chapters IV and VI of the 1967 Act until the
conclusion of the trial thereof. To wit, soon after the
arrest of the Accused on the basis of the FIR registered
against him, but before filing of the chargesheet by the
Investigating Agency; after filing of the first charge-
sheet and before the filing of the supplementary or
final chargesheet consequent to further investigation
under Section 173(8) Cr.P.C., until framing of the
charges or after framing of the charges by the Court
and recording of evidence of key witnesses etc.
However, once charges are framed, it would be safe to
assume that a very strong suspicion was founded upon
the materials before the Court, which prompted the
Court to form a presumptive opinion as to the
existence of the factual ingredients constituting the
offence alleged against the accused, to justify the
framing of charge. In that situation, the Accused may
have to undertake an arduous task to satisfy the court
that despite the framing of charge, the materials
presented along with the chargesheet (report under
Section 173 of Cr.P.C.), do not make out reasonable
grounds for believing that the accusation against him
is prima facie true. Similar opinion is required to be
formed by the Court whilst considering the prayer for
bail, made after filing of the first report made under
Section 173 of the Code, as in the present case.
19. For that, the totality of the material gathered by the
Investigating Agency and presented along with the
report and including the case diary, is required to be
reckoned and not by analysing individual pieces of
evidence or circumstance. In any case, the question of
discarding the document at this stage, on the ground of
being inadmissible in evidence, is not permissible. For,
the issue of admissibility of the document/evidence
would be a matter for trial. The Court must look at the
contents of the document and take such document into
account as it is."
18. After going through the impugned order, we have no doubt
that there is force in the submission of the learned Assistant Solicitor
General and the Public Prosecutor for the NIA that the learned Special
Judge had ventured to make a thorough, threadbare analysis into each
and every document relied on by the prosecution, as if in a trial. In other
words, there is substance in the contention that the learned Judge has
overstepped while deciding to release the respondents on bail.
19. We do not approve the approach made by the learned Special
Judge. He is of the firm view, basing on the authorities, that bail is the
rule and jail, exception. Even though that is the general perception in
ordinary crimes, when the accused faces allegation under a special
enactment, his right to be enlarged on bail shall be governed by the
provisions of the special statute. In such cases, the provisions under the
Code cannot be readily applied. As noticed earlier, Section 43-D(5) of
the Act is an exception to the provisions of the Code, which postulates
modified applications of certain provisions of the Code. It starts with a
non obstante clause. When offence under Chapters IV and VI of the Act
is alleged, the court shall not grant bail unless giving liberty to the
Prosecutor to address the court. Further, the proviso to Section 43-D(5)
works as a statutory injunction on the court in granting bail; if there are
prima facie circumstances to believe that the allegations are true, bail
cannot be granted as a rule. The Hon'ble Apex Court in Watali (quoted
supra) has stated how the materials placed before court have to be
understood while considering an application for bail.
20. The Act was enacted for the purpose of combating and
controlling unlawful activities and acts of terrorism and related activities.
Though the Act had come into existence in 1967, drastic amendments
were made in 2008 and 2013. Section 43-D was brought into the statute
in 2008 to meet the contingencies of the changed circumstances.
Terrorist acts or acts prompting or assisting such activities have been
taken serious note of by the legislature and that was how stringent
provisions have been incorporated in the matter of grant of bail,
especially when certain category of offences are attracted. In such
situations, the powers of the Sessions Court as well as that of this Court
under Section 439 stand circumscribed. What we endeavour to say is that
the principle, bail is the rule and jail the exception, has no application in
such a case, especially when the offences under Chapters IV and VI of the
Act are alleged against the accused. In this connection, the decisions of
the Hon'ble Supreme Court in Narcotic Control Bureau v. Kishan Lal
and others [AIR 1991 SC 558] and Union of India v. Ikram Khan and
others [(2000) 9 SCC 221] rendered in the background of Section 37 of
the NDPS Act require to be mentioned.
21. Having said that the Special Judge ought to have considered
the import of Section 43-D(5) of the Act, now the second aspect is
whether there exist prima facie grounds to say that the accusations
against the appellants are true.
22. In order to form an opinion on this, it is not necessary to
delve deep into material documents one after another, as done by the
learned Special Judge. The Apex Court has in Watali, quoted supra,
made it succinctly clear as follow:-
"17. ............ By its very nature, the expression "prima
facie true" would mean that the materials/evidence
collated by the Investigating Agency in reference to the
accusation against the concerned Accused in the first
information report, must prevail until contradicted and
overcome or disproved by other evidence, and on the face
of it, shows the complicity of such Accused in the
commission of the stated offence. It must be good and
sufficient on its face to establish a given fact or the chain
of facts constituting the stated offence, unless rebutted or
contradicted. In one sense, the degree of satisfaction is
lighter when the court has to opine that the accusation is
"prima facie true", as compared to the opinion of Accused
"not guilty" of such offence as required under the other
special enactments. In any case, the degree of satisfaction
to be recorded by the court for opining that there are
reasonable grounds for believing that the accusation
against the Accused is prima facie true, is lighter than the
degree of satisfaction to be recorded for considering a
discharge application or framing of charges in relation to
offences under the 1967 Act. ........."
As rightly pointed out by the learned ASG, the learned Judge has failed
to notice the cumulative effect of the documents and materials seized
from the possession of the respondents. The learned Judge has
categorised the documents into 12 and said that those documents do not
make out a prima facie case to proceed against the respondents. But after
going through the material documents and also bearing in mind the
authorities on the subject, we are unable to subscribe to the view.
Various documents were seized from the respondents. The learned
counsel for the respondents wanted to impress us that such materials, if at
all found in the possession of the respondents, were carried by them out
of their curiosity to know about the philosophy of the CPI(Maoist), that it
might be the affinity of the youth in the tender age to know novel
ideologies and that no criminal intention can be attributed. It was
pointed out that the first accused is a law student, only 19 years old at the
time of registration of the crime, whereas the second accused is a student
in Journalism, aged 23 years. Even though they are youth and such a
proposition is also probable, we cannot ignore the fact that the
respondents had carried only such type of literature or writings which
were published by the CPI(Maoist) which is admittedly a proscribed,
underworld organisation.
23. We have already stated in brief the necessary ingredients of
the offences under Sections 38 and 39 of the Act. The respondents had
carried numerous writings and literature published by the said
organisation or by those who have strong allegiance to the outfit. That
means, the contention that the respondents had carried such materials
out of their youthful inquisitiveness and quest for understanding new
ideologies and curiosity does not carry any weight. If they, as youngsters
were interested in understanding and assimilating new and novel
ideologies, a bunch of materials published by a particular outfit alone
would not have been found in their possession and power. The
underlying element of mens rea cannot be overlooked. Therefore, this
circumstance alone is sufficient to say, at least at this stage, that they are
protagonists of the organisation.
24. There is also considerable force in the argument of the
learned counsel for the appellant that the trial Judge has failed in
understanding terrorist acts vis-a-vis the activities of a terrorist
organisation. We have noticed that the learned Judge has repeatedly used
terms like 'terrorist activities' (paragraph 49, 54, 56 and 70), 'terrorist
attacks' (paragraph 70), 'violent act' (paragraph 75) 'violence'
(paragraph 90), 'overt act of violence' (paragraph 75, 76 and 85),
'terrorist act' (paragraph 80 and 88) in the impugned order. It appears
that the Judge was under the mistaken notion that in order to attract the
alleged offences, such violent acts were necessary. But the prosecution
has no case that the appellants are members of a terrorist organisation.
Though the crime was originally registered alleging offence punishable
under Section 20 of the Act as well, after investigation that provision
stands deleted. Similarly, the prosecution has no allegation that the
respondents have indulged themselves in any terrorist act, as defined in
Section 15 of the Act. A terrorist act and acts which further the activities,
by promoting and assisting activities of such terrorist organisation by
persons who associate themselves or profess to be associated have to be
seen differently. Separate provisions have been incorporated in the
statute to meet such contingencies.
25. The learned Special Judge has not considered the other pieces
of evidence which include the oral testimony of witnesses recorded by
the investigating officer, relied on by the prosecution. Apart from the
documents and electronic gadgets seized from the possession of the
respondents, witnesses have spoken that the respondents had close
association and rapport with persons having close link with the banned
organisation. There are also ocular evidence to say that they were
regularly attending meetings of such organisations. In the light of the
directives given by the Hon'ble Apex Court, these matters cannot be
eschewed but are relevant while considering the question as to whether
the accused are entitled to be released on bail.
26. There is also substance in the contention of the learned
counsel for the appellant that the trial Judge has oversimplified the
materials seized from the possession of the respondents. There are
documents which are innocuous on the face of it; at the same time, there
are other documents which are highly inflammable and volatile. After
rushing through the materials we are only to say that, generally speaking,
some of those materials are not innocent and innocuous which could be
ignored in a light-hearted manner. True, the prosecution could not prove
that the respondents are members of an unlawful organisation. But these
are surreptitious activities for which evidence may not be readily
available, in black and white. Everything is done under the carpet,
behind the curtain, without leaving any footprint. Matters have to be
inferred from the circumstances. The statement of witness Nos.56, 57,
58, 63 and 64 have to be considered in this context. Statements of some
of the witnesses suggest that the respondents used to take photocopies of
such documents. Similarly, the documents seized from the respondents
cannot be seen in isolation. D17 document alone is sufficient to
understand the modus operandi of the outfit. It is seen that they consider
the administrative set up of the Government and the police as their foes.
The strategies adopted by them to further the activities of the outfit are
vividly given in the guidelines regarding the movements of the activists,
how meetings should be convened, guidelines regarding use of electronic
gadgets, use of internet, computer, social media etc., and how precautions
are to be taken. This document also envisages two types of comraderie-
'parasya sakhakkal' and 'rahasya sakhakkal' that is, comrades working
overtly and covertly. By no stretch of imagination it could be thought that
such types of documents were carried by the respondents out of mere
curiosity or intellectual pursuit of new ideologies.
27. After perusing D17 document an important aspect came to
the fore is that the respondents did not carry their mobile phones while
they were arrested. It is very conspicuous. This document is sceptical
about telephone tapping, tracing a person in transit through phones, etc.
It cautions its activists and reminds that all communications shall be done
discretely only. It is not that both of them do not have mobile phones.
Their mobile sets were seized from the respective residences, after the
search. So in all probability, the respondents were keeping their mobile
phones at home, obeying the diktat.
28. It was pointed out by the learned counsel for the respondents
that publication of these materials have not been banned and carrying
them cannot be described as an offence. We are unable to subscribe to
the argument. Firstly, it is not disputed at this stage that these are
publications made by a banned outfit. Secondly, once such an
organisation stands proscribed, it cannot be heard to say that each and
every publication made by them should stand prohibited separately.
Moreover, as hinted earlier, carrying such documents cannot be reckoned
in isolation. This together with the oral testimony of witnesses do suggest
prima facie that the respondents were protagonists of such an ideology.
29. Moreover, at least in one instance, 15 copies of the literature
were found in the possession of the second accused. It is a very strong
circumstance capable of drawing adverse inference against the
respondents to say that such items were carried with clear intention, for
the purpose of circulation.
30. The learned Special Judge has relied on numerous authorities
to fortify his conclusion regarding the grant of bail to the respondents.
Even though he had noticed Watali as well, noted supra, did not choose
to follow the law laid down by the Supreme Court on the subject which
holds the field. It is binding under Article 141 of the Constitution. If the
directions in the case were properly understood and applied, we are sure,
the decision would have been different. It is the latest authority on the
subject which is based on earlier decisions of the Apex Court.
31. The subsequent conduct of the second accused also should
have been taken serious note of by the trial court. It is the specific
allegation of the prosecution that after having arrested and taken to his
residence for conducting a search, the second accused was shouting
slogans in support of the CPI(Maoist). This conduct is relevant for the
present purpose.
32. The second accused faces offence under Section 13 of the Act
also for having carried two banners seeking independence of Jammu &
Kashmir. Documents carried by the respondents depict Jammu &
Kashmir as a neighbouring country. We are unable to approve the
argument of the learned counsel that this has to be viewed in the light of
the protests emerged against the amendment of the Constitution which
conferred status of Union Territory on Jammu & Kashmir. In our view,
the said documents carry the seeds of a secessionist ideology and the very
Act is intended to compact such activities.
33. On evaluation of the entire circumstances and materials we
find it difficult to uphold the order under challenge. As rightly pointed
out by the learned Asst. Solicitor General and the Public Prosecutor, the
Special Judge has oversimplified the matters and watered down the
seriousness of the documents seized from the respondents or the
statements of witnesses spoken against them. Therefore, the order
warrants interference under Section 386 of the Code.
34. The learned counsel for the respondents cited very many
authorities as if it is the proceedings for cancellation of bail. In fact we
are not on the question. We are sitting in appeal over the correctness of
the order granting bail to the respondents. As held by a Full Bench of
this Court in Mastiguda Aboobacker and another v. National
Investigation Agency and others [2020 (6) KHC 265 (F.B.)] in which
one of us was party (Hariprasad, J), in the absence of prescribed special
procedure for investigating, enquiring into or trying the offences under
the NIA Act, provisions under the Code will prevail since the NIA Act is
intrinsically interlinked with the provisions of the Code. That means,
powers of this Court under Section 386 of the Code will govern the
subject.
35. It also requires to be stated that very many authorities were
relied on by the learned Special Judge outside the context. While
considering the question whether there is prima facie material to infer
commission of offence under Sections 38 and 39 of the Act, the court
should have confined to the area of enquiry instead of going haywire.
We have no doubt that rights and personal liberty are sacrosanct. Courts
are bound to protect it. At the same time, individual rights should
subserve the national interest. When individual rights are pitted against
national interest and security, the latter should prevail.
36. In the result, the order of the trial court granting bail to the
respondents cannot be sustained. But after considering the case of the
first accused, who is the respondent in Crl.A.706/2020, we are of the
view that there are numerous mitigating circumstances in his favour.
Firstly, on the date of detection of the crime, he was only 20 years old.
Secondly, referring to copies of the prescription produced along with the
bail application the learned Special Judge has noted that he has some
psychiatric issues for which treatment is underway. While considering
the appeals, we give more importance on this aspect. Moreover,
materials placed before the court, seized from him, are less serious,
compared to the materials seized from the possession of the second
accused; again the subsequent conduct of the second accused is also
blameworthy. That means, we do not propose to reverse the order so far
as the first accused is concerned, who shall continue on bail on the same
terms and conditions imposed by the Special Judge, whereas
Crl.A.No.705/2020 will stand allowed and that part of the order granting
bail to the second accused is reversed. He will surrender before the
Special Judge forthwith, failing which the Special Court shall take steps
to secure him in custody.
37. In the light of the above finding, the learned Special Judge is
directed to try and dispose of S.C.No.1/2020 pending before court as
expeditiously as possible, within one year from the date of receipt of a
copy of this judgment.
38. It goes without saying that, various observations/comments
made hereabove are for the limited purpose of disposing of these appeals.
The Special Judge shall try and dispose of the case uninfluenced by such
observations/comments.
39. We would also like to remind the learned Judge that the
impugned order has been prepared as if it is a court of record which was
unnecessary. Similarly, the learned Judge, while quoting some
judgments of the Apex Court, has stated the names of the Hon'ble Judges
who authored the judgments which is unwholesome.
The appeals are disposed of as above.
Sd/-
A. HARIPRASAD
JUDGE
Sd/-
K. HARIPAL
JUDGE
okb/14/12/2020
//True copy// P.S. to Judge
