Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has granted bail to Thwaha Fasal and Allan Shuaib, booked under punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 for alleged links with Communist Party of India (Maoist).
It was argued before the Court that though the investigation of the case was later on, transferred to National Investigation Agency (NIA), the NIA did not seek sanction for prosecuting any of the accused for the offence punishable under Section 20. Sanction was sought to prosecute Fasal and Shuaib for the offences punishable under Sections 38 and 39. In addition, a sanction was sought to prosecute Shuaib under Section 13.
Hence, in view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, it was noticed that a prima facie case of the accused being involved in the said offence is not made out at this stage.
Material against Fasal
- Fasal’s cell phone had a video clip with the title “Kashmir bleeding”, as well as portraits of various communist revolutionary leaders, like Che Guvera and Mao Tse Tung, as also portrait of Geelani, a Kashmiri leader. Copies of certain posters were also found.
- Pdf files extracted showed that it contained material regarding abrogation of Article 370 of the Constitution and various other items.
- The photographs also showed that he attended protest gathering conducted in October 2019 by Kurdistan Solidarity Network.
- No incrimination evidence was found in the face book account, e-mail accounts and call details of the accused.
Material against Shuaib
- On Shuaib’s devices, images of CPI (Maoist) flag, files relating to constitution of central committee of CPI (Maoist), files relating to CPI (Maoist) central committee programme, image of hanging Prime Minister, various newspaper cuttings relating to maoist incidents were found. A book was also seized relating to encounter with PLGA (Maoist) at Agali.
- During the search of his residence, he shouted slogans, such as inquilab zindabad and maoisim zindabad. He also shouted slogans containing greetings to the brave martyrs who died in an armed encounter between Maoist members and police.
- No incrimination evidence was found in the face book account, e-mail accounts and call details of the accused.
“Mere” association with a terrorist organization – Implication?
Taking the charge sheet as correct, at the highest, it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation. However, mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39.
“The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet.”
The Court noticed that at formative young age, Fasal and Shuaib might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form.
“Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of both in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organization.”
The Court noticed that apart from the fact that overt acts on their part for showing the presence of the required intention or state of mind are not borne out from the charge sheet, prima facie, their constant association or support of the organization for a long period of time is not borne out from the charge sheet.
Section 43D vis-à-vis Court’s power to grant bail
While deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds.
“However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is.”
Further, the stringent restrictions imposed by sub-section(5) of Section 43D, do not negate the power of Constitutional Court to grant bail keeping in mind violation of Part III of the Constitution.
Bail to Fasal and Shuaib
Having examined the material against both the accused in the context of sub-section (5) of Section 43D by taking the materials forming part of the charge sheet as it is, the Court was of the opinion that the accusation against both the accused of the commission of offences punishable under Sections 38 and 39 does not appear to be prima facie true.
Factors considered
- Fasal is taking treatment for a psychological disorder and is also a student of law. Moreover, 92 witnesses have been cited by the prosecution. Even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reasonable time as even charges have not been framed.
- There is no minimum punishment prescribed for the offences under Sections 38 and 39 of the 1967 Act and the punishment can extend to 10 years or only fine or with both. Hence, depending upon the evidence on record and after consideration of relevant factors, the accused can be let off even on fine.
- Shuaib has been in custody for more than 570 days.
- As regards the offence under Section 13 alleged against Shuaib, the maximum punishment is of imprisonment of 5 years or with fine or with both.
Hence,
- The appeal preferred by Union of India is dismissed and the order granting bail to Fasal is confirmed.
- The impugned Judgment and Order of the High Court to the extent to which it sets aside the order granting bail to him Shuaib is quashed and set aside and the Special Court’s Order dated 9 th September 2020 granting bail to him is restored. Shuaib to be produced before the Special Court within a maximum period of one week to enable him to complete the bail formalities by furnishing the fresh bonds.
[Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, decided on 28.10.2021]
Counsels
For Accused: Senior Advocates R. Basant, Jayanth Muthuraj
For State: ASG S.V. Raju
*Judgment by: Justice Abhay S. Oka