UAPA Case : Supreme Court Grants Bail To Thwaha Fasal, Dismisses NIA's Appeal Against Allan Shuhaib's Bail
The Supreme Court on Thursday restored the Special NIA Court, Kochi's order granting bail to Kerala youth Thwaha Fasal and Allan Shuhaib in a UAPA case over alleged Moist links.The bench of Justices Ajay Rastogi and Abhay Sreeniwas Oka delivered the judgment in the following appeals : The appeal filed by Thwaha Fasal, a journalism student, challenging the judgment of the Kerala High Court...
The Supreme Court on Thursday restored the Special NIA Court, Kochi's order granting bail to Kerala youth Thwaha Fasal and Allan Shuhaib in a UAPA case over alleged Moist links.
The bench of Justices Ajay Rastogi and Abhay Sreeniwas Oka delivered the judgment in the following appeals :
- The appeal filed by Thwaha Fasal, a journalism student, challenging the judgment of the Kerala High Court which set aside the bail granted to him by the Special NIA Court.
- The appeal filed by the NIA challenging the very same Kerala High Court judgment affirming the trial court's order granting bail to Fasal's co-accused law student Allan Shuhaib
The Supreme Court has allowed Fasal's appeal and dismissed the appeal filed by the NIA.
Justice Oka, who read out the operative portion of the judgment, stated that Fasal's appeal has been allowed and the High Court's judgment of January 2021, which reversed his bail, has been set-aside. Also, the appeal by Union of India against Shuhaib's bail is dismissed, and the order of bail granted by trial court is confirmed.
The Court directed that Fasal be produced before the trial court to complete the bail formalities. The bail will be subject to the conditions in the bail order passed by the Special NIA Court Kochi in September 2020.
For separate report about the reasons stated in the order, refer here : Mere Support To Terrorist Organization Without Intention To Further Its Activities Does Not Attract Section 38/39 UAPA : Supreme Court
Senior Advocate Jayant Muth Raj, appearing for Fasal, had mainly argued that the NIA's chargesheet does not establish that the the accused had the intention to further the activities of Maoist group, so as to attract Sections 38 and 39 of the UAPA. It was highlighted that the NIA has dropped Section 20 of the UAPA, which is the offence relating to membership of banned terror group, from the chargesheet. Senior Advocate V Giri had appeared for Fasal at the admission stage of the appeal.
Senior Advocate R Basant, appearing for Shuhaib, whose bail was sustained by the High Court on medical grounds (noting his condition of depression), argued that the 'intention' for offence under Sections 38/39 cannot be gathered from mere books or pamphlets.
Additional Solicitor General SV Raju, appearing for the NIA, argued that the materials seized indicated that the accused were not mere sympathizers of Maoist ideology but were closely linked with the terror group's activities. The ASG agreed that dropping of Section 20 UAPA was a lacunae but said that it was rectifiable by adding the provision later after obtaining the requisite sanction. According to him, dehors Section 20, the materials on record were sufficient to infer their membership in the Maoist group.
In the instant case, the Court noted that 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, there is no material to show that they had "intention to further the activities" of the terror group, so as to attract the grave offences under Sections 38 and 39 of the UAPA.
The Supreme Court observed that the findings of the Special Court was based on the materials of the chargesheet. The High Court has not recorded any prima facie case regarding the intention to further the activities of terror group.
"The High Court observed that the learned Special Judge has oversimplified the matter. However, the High Court did not notice that by taking the material collected during the investigation which forms a part of the charge sheet as it is, the Special Court had recorded a prima facie finding regarding the absence of any material to show intention on the part of the accused to further the activities of CPI (Maoist). The High Court has not recorded prima facie finding on this aspect. By applying the law laid down in the case of Watali (supra), there were no reasonable grounds for believing that the accusations against the accused nos.1 and 2 of commission of offences under Sections 38 and 39 were prima facie true", the Court noted.
The Court also noted that stringent conditions have been imposed by the Special Court for bail. Accordingly, the Special Court's order was restored and the High Court's judgment was set aside.
The Kerala High Court division bench comprising Justices A Hariprasad and K Haripal in January allowed the appeal filed by the National Investigation Agency against the September 9 order passed by Special NIA Court, Kochi, granting bail to Thwaha, a student of journalism. The High Court said that it was not interfering with the bail granting to Allan Shuhaib at the moment, considering his young age and also his psychiatric issues. The Court also observed that the materials seized from Allan were less "serious" when compared to those seized from Thwaha. The Court also placed particular emphasis on the allegation that Thwaha had uttered pro-Maoist slogans, which the court termed "blameworthy".
The High Court has directed Thwaha to surrender before the trial court. The HC has also given a direction to the NIA Court to complete the trial within one year.
The High Court has also set aside the finding of the trial court that no prima facie case was made out against the accused. The HC observed that the trial court went beyond the scope of prima facie enquiry for the purposes of bail consideration.
"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", the judgment authored by Justice K Haripal observed.
The HC observed that the trial court went into a "thread-bare analysis" of the documents on record as if in a trial. Reference was made to the SC decision in NIA v Zafoor Ahmed Shah Watali which held that the totality of the materials should be looked into for the purpose of bail consideration under Section 43D(5).
Arrested In November 2019
They were arrested by the Kerala police in November 2019 under the Unlawful Activities Prevention Act alleging that they were supporting proscribed Maoist groups, which have been declared as terrorist organizations. The NIA took over the case later.
In September last year, nearly ten months after custody, the NIA Court granted them bail observing that the National Investigation Agency failed to establish a prima facie case under the Unlawful Activities Prevention Act (UAPA), 1967, against the accused.
The national agency cited books, pamphlets, placards, diary notes etc seized from the accused to allege that they were supporters of Maoist ideology. Offences under Sections 38 and 39 of the UAPA which deal with association with a terrorist organization and supporting it with the intention to further its activities, Section 13 of the UAPA (punishment for unlawful activity) and 120B of the Indian Penal Code (criminal conspiracy) were invoked against them.
The NIA Court observed that the notices, pamphlets, banners, etc., seized from the accused related to "burning social and political issues" such as calling for implementation of Gadgil Committee report for the protection of western ghats, condemnation of encounter killings of Maoists, protests against police atrocities, abrogation of J&K special status, etc. The programmes and activities projected by the prosecution were public protests related to current issues, the court noted.
"Right to protest is a constitutionally guaranteed right. It is well settled that "Government established by law" has to be distinguished from persons for the time being engaged in carrying on the administration. A protest against policies and decisions of the government, even if it is wrong a wrong cause, cannot be termed as sedition or an intentional act to support cession or secession", the court observed.
The Court further noted the mere possession of books on Communist ideology, Maoism, class struggle, etc., does not prove anything adverse against the accused.
"It becomes adverse only when there is any positive act from the side of the accused to instigate violence. Prima facie there is nothing to suggest any overt act on the side of the accused in this regard", the Court said.
Case name and Citation: Thwaha Fasal vs. Union of India LL 2021 SC 605
Case no. and Date: CrA 1302 OF 2021 | 28 October 2021
Coram: Justices Ajay Rastogi and Abhay S. Oka
Click here to Read/Download Judgment