Gauhati High Court Directs Trial Court To Conduct Fresh Hearing On Framing Of Charges In UAPA Case Against Akhil Gogoi, Others [Read Judgment]

The appeal was preferred by NIA against the judgment and order dated 01.07.2021 passed by the Special Judge, NIA, Assam, Guwahati by which all the four accused persons were discharged on the ground that there was no material available on record so as to frame charges against them.

While remanding back the matter to the NIA Court for fresh charge-hearing against all the four accused, the division bench of Justice Suman Shyam and Justice Malasari Nandi observed:

“On a careful reading of the impugned judgment and order dated 01.07.2021, we are of the considered opinion that the impugned judgment has the trappings of an order of acquittal rather than an order of discharge. As such, the approach of the learned Special Judge, NIA, in our considered opinion, was clearly erroneous in the eye of law, thus having a vitiating effect on the impugned judgment.”

Advocate D. Saikia, the counsel for NIA had earlier argued before the bench that the prosecution had submitted additional charge-sheet on 29.06.2021 bringing additional materials in the form of evidence of protected witness to argue that there was sufficient evidence available against the accused persons and to establish that they were the members of a “terrorist gang”.

He further argued that prosecution had sought 10 days time to go through the written arguments, consisting of 1225 pages, submitted by the accused persons but the court verbally agreed to grant only seven days time to the prosecution. However, by a post-dated order, the prayer for adjournment made by the prosecution was rejected and on 01.07.2021, the impugned judgment was delivered.

Advocate Saikia had also argued that the prosecution side was denied fair opportunity by the NIA Court to argue its case and therefore there was violation of principles of natural justice.

It was further submitted that the transcript of intercepted telephonic conversations between the main accused  and his associates show that there are materials to indicate that he was giving calls to completely block the National Highway; to break the Government; and to gherao the house of some Ministers including the Chief Minister, Assam.

While considering material on record, the division bench observed:

“We do not find any valid reason as to why, the prayer for granting even a short adjournment had to be rejected by the learned trial court. We also do not find any ground to presume that granting a week’s time to the prosecution to place its case in its entirety would have resulted in undue delay in concluding the proceedings that would have occasioned failure of justice.”

The court said by refusing to grant time to the prosecution to place its case in the light of the materials brought on record, more particularly the additional charge-sheet, the trial court denied a fair opportunity to the prosecution to present its case.

The court further said that the trial court has recorded elaborate findings to arrive at the conclusion that the prosecution has failed to produce sufficient materials to show that the accused persons were members of a “terrorist organization”.

“However, what is significant to note herein that there is no clear finding in the impugned judgment as to why the alleged activities indulged by the accused persons such as calls for blockade and closure, plans for shut-down, enclosing the house of Cabinet Ministers, disruption of transport and supplies and incidents of violence, which the learned court below has taken note of, if accepted to be correct would not come within the meaning of Section 2(l) read with Section 15 of the UA(P) Act.,” the court said.

The court said it disagrees with such observation of the trial judge purely on account of the fact that whether the call for economic blockade was with the requisite intention of threatening the economic security of India or not is a matter of trial.

The bench ruled that it was not open for the trial court to record a finding on the intention of the accused persons at the stage of framing of charges by resorting to a roving enquiry in the matter. It further observed that NIA Court conducted a ‘mini trial’ at the time of framing of charge by resorting to meticulous sifting of evidence so as to form an opinion on the culpability of the accused.

“We are of the opinion that the findings recorded therein are primarily directed towards existence or otherwise of the grounds for conviction of the accused persons rather than existence of grounds to proceed against them,” the court said.

The court further held that while exercising jurisdiction under sections 227 and 228 of the Cr.P.C, the Special Judge travelled way beyond the level of sifting of evidence that is permissible at the stage of charge framing "and instead, has gone on to weigh the materials produced by the prosecution to record a finding on the question of guilt of the accused persons."

“Such a recourse, in our opinion, was neither permissible in law nor called for in the facts and circumstances of the case,” the court said.

The court remanded back the matter to the NIA Court for reconsideration for fresh hearing on the question of framing of charge against all the four accused persons.

“On such consideration, if it is found that the statements of the witnesses and the documents on record are not sufficient to frame charge against the accused persons under any of the provisions of the UA(P) Act but there are materials to frame charge under the provisions of the IPC, then in that event, the learned court below may invoke jurisdiction under Section 20 of the National Investigation Agency Act, 2008 and transfer the matter for trial by the competent court having jurisdiction in the matter,” the bench

The court further directed the NIA court to conduct "charge-hearing" as expeditiously as possible and said, if necessary, it may conduct hearing on a day-to-day basis. It directed the the parties to appear before the court below on February 23.

On the issue of bail, the court observed that if any bail application is moved by Gogoi, the same shall be considered by the trial Judge as per law, on its own merit and without being influenced by any observation made in this order.

Case Title: The State, National Investigation Agency v. Akhil Gogoi and 3 Ors.

Citation: 2023 LiveLaw (Gau) 20

Coram: Justice Suman Shyam and Justice Malasari Nandi

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