The Supreme Court upheld the bail of two Kerala students under the stringent Unlawful Activities (Prevention) Act (UAPA) while observing that mere association or support given to a terrorist organisation does not attract the stringent provisions of UAPA. The bench of Justices Ajay Rastogi and Abhay Oka held that while considering bail under UAPA, the court need not conduct a mini trial and only appreciate the material based on which the chargesheet was filed.
The accused were charged for having Maoist links as they possessed certain materials relating to the programmes of CPI (Maoist). The court observed that the students are of formative age and might have been fascinated by what is propagated by CPI (Maoist).
Thwaha Fasal’s bail was cancelled by the Kerala High Court, leading him to move Supreme Court. Meanwhile, Allen Shuhaib’s bail was challenged by the National Investigation Agency (NIA) before the same bench. The bench of Justices Ajay Rastogi and Abhay Sreeniwas Oka restored Fasal’s bail and upheld the bail granted to Shuaib.
On September 9, 2020, a special NIA court in Kochi granted bail to Allan Shuaib (20) and Thwaha Fasal (24) who were detained since November 2019. They were arrested on the grounds that they were in possession of documents supporting CPI (Maoist), attended meetings of CPI (Maoist), prepared cloth banners supporting secession of Kashmir from India. The two boys were apprehended by the police from a roadside, on November 1, 2019 as they found them to be suspicious, and they found some material in their bags on the basis of which they were charged under the stringent sections of UAPA. These materials included some documents, some books, a notepad with “code language” as well as two books titled “Caste Issues in India” and “Organizational democracy – disagreement with Lenin”.
The special NIA court had observed that the object of detention pending criminal proceedings is not punishment, and that the law favours allowance of bail, which is the rule, and refusal of it is an exception. The court observed that while it has to act in accordance with section 43D of UAPA while granting bail it also has “equal responsibility to see that human rights are not violated in the process of combating terrorism.”
The Kerala High Court, on the other hand, concurred with the ASG’s submissions that the special judge failed to notice the cumulative effect of the documents and materials seized from the possession of the respondents (accused). The court perused the material seized from the respondents and held that some of those materials are not innocent and innocuous which could be ignored in a light-hearted manner. The court was convinced that the Special court judge oversimplified matters and watered down the seriousness of documents seized from the respondents while granting bail. The court then considered that Shuaib was only 20 years old and suffered from some psychiatric issues and hence did not interfere with his bail but cancelled the bail granted to Fasal.
The counsel for Fasal (accused no.2), Jayanth Muthuraj argued that while granting bail, the Special Court had concluded that the chargesheet does not make out a prima facie case of the accused having intention to encourage, further, promote or facilitate the commission of terrorist activities. He also relied upon Union of India v. K.A. Najeeb (2021) 3 SCC 713 to submit that the statutory embargo imposed by sub-section (5) of Section 43D of the 1967 Act does not oust the jurisdiction of a Constitutional Court to grant bail on the ground of violation of rights.
He pointed out that after his bail was cancelled by Kerala High Court, Fasal surrendered immediately and has been in custody for more than 572 days and charges have not been framed by the Special Court.
S.V. Raju, the Additional Solicitor General (ASG) opposed the appeal and argued that two red colour handmade cloth banners of CPI (Maoist) were recovered from Fasal’s residence calling upon people to support the struggle for independence of Kashmir which amounts to inciting rebellion. He pointed out that soft copies of a number of volumes of news bulletins of CPI (Maoist) and party programmes were recovered from the digital device. He submitted that all the material indicates that both accused are intimately connected with CPI (Maoist)
The court analysed the charges invoked against the accused. The main pointers are as follows:
- Section 20 is not attracted unless the terrorist gang or terrorist organisation of which the accused is a member is involved in terrorist act as defined by Section 15
- If the accused is associated with a terrorist organisation, the offence punishable under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organization with intention to further its activities The association must be with intention to further the activities of a terrorist organisation
- The offences punishable under clauses (a), (b) and (c) of sub-section (1) of Section 39 are attracted only when the actions incorporated therein are done with intention to further the activities of a terrorist organization and must have connection with terrorist act.
The court held that even if an accused allegedly supports a terrorist organisation by committing acts referred in clauses (a) to (c) of subsection (1) of Section 39, he cannot be held guilty of the offence punishable under Section 39 if it is not established that the acts of support are done with intention to further the activities of a terrorist organisation.
Thus, intention to further activities of a terrorist organisation is an essential ingredient of the offences punishable under Sections 38 and 39 of UAPA.
The court further held that since section 13 (punishment for unlawful activities) does not come under Chapter IV or VI of UAPA, stringent provisions of sub-section (5) of Section 43D do not apply. Fasal was charged with section 13 for the banners that were found in his house.
The court considered the provisions of section 43D(5) and held that after perusing the chargesheet, if the court is unable to draw out reasonable grounds for believing that the accusation against such person is prima facie true, the embargo created by the proviso will not apply.
"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 court stressed that the grounds for establishing prima facie case against the accused have to be “reasonable”. The court cautioned that the court ought not to conduct a mini trial and neither is it supposed to examine the merits and demerits of the evidence. However, if a chargesheet is filed, the Court has to examine the material forming a part of the chargesheet to determine reasonable grounds.
The court, after perusing the chargesheet and the material it was based, held that it establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation.
However, the court said, “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.” Further, the association and the support have to be with the intention of furthering the activities of a terrorist organisation which may be inferred from overt acts of active participation.
“At formative young age, the accused nos.1 and 2 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.”
The court said that apart from some photos showing that they were part of a gathering, there is nothing to show active participation in CPI (Maoist). The court also stated that their constant association or support of the organization for a long period of time is also not apparent from the chargesheet.
Trial court vis-à-vis high court
The high court had held that the trial court had oversimplified the matter while granting bail. The Supreme Court however, opined that the high court failed to note that the special court had examined all material and recorded prima facie findings to conclude that there was no intention on the part of the accused to further the activities of CPI (Maoist).
The court thus dismissed the appeal filed by the government against the bail granted to Allen Shuhaib and set aside the Kerala High Court order cancelling the bail granted to Fasal.
The complete judgement may be read here: