Mere Association With Terrorist Organisation Not Offence Under UAPA: Chhattisgarh HC Grants Bail For Alleged Payment Of Extortion Money To Banned Outfit

Granting bail to two accused under Unlawful Activities Prevention Act, 1967, the Chhattisgarh High Court recently reiterated that mere association with a terrorist organization as a member or otherwise would not be sufficient to attract the offence under Section 38 unless the association intends to further its activities.

A Division Bench of Justices Sanjay Agrawal and Rajani Dubey made the observation while considering the pleas of two persons accused of paying extortion money to banned outfits for undertaking road construction work.

However, referring to Sudesh Kedia v. Union of India, the Bench observed that payment of extortion money to a banned/terror organization does not amount to terror funding and even if the charge­sheet is taken as whole along with other material on record that the appellants were paying the extortion amounts for letting them work smoothly in the said area.

In Sudesh Kedia (supra) it was held that payment of extortion money does not amount to terror funding.

Thus, the Court was of the opinion that the allegations against the accused were not sufficient to attract the bar on grant of bail under Section 43D(5) of the UAPA. In this context it referred to the apex court decision in the case of Thwaha Fasal v. Union of India and noted that the bar provided in Section 43D(5) of the UAPA does not operate against the Constitutional Courts' power to ensure fundamental rights guaranteed under Part III of the Constitution of India. It remarked,

"Section 43D(5) of the UAPA provides that an accused of an offence punishable under the provisions of the UAPA shall not be on bail or his 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. Further, Sub­section (6) of Section 43D of the UAPA further provides that the restrictions on granting of bail specified in sub­section (5) are in addition to the restrictions under the Code or any other law for the time being in force on granting of bail."

Background of the Case

A criminal appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008, directed against an order of the Special Judge (NIA Act), whereby the appellant's application under Section 439 of the CrPC seeking bail for offences under Sections 149, 201 & 120B/34 of the IPC, Section 8(2)(3)(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 and Sections 10,13,17,38(1) (2), 40 and 22(A)(C) of the Unlawful Activities Prevention Act, 1967 was rejected finding no merit.

In the prosecution's case, based on secret information, the respondent searched the vehicle to find 95 pairs of shoes, green-black printed cloths for the uniform, two bundles of electric wires each of 100 meters, an LED lens, walkie talkie, and other articles in the appellant's possession. The further prosecution case is that these articles were to be supplied by the appellant to the Naxalites to support their illegal and disruptive activities. It is alleged that the appellant was working with Rudransh Earth Movers Road Construction Company, a partnership firm of appellant No.2 ­Komal Verma and one co­accused Ajay Jain. It is also the prosecution case that the accused were providing funds to the Naxalites; though no cash was recovered on the said date, the police arrested all of them, including the appellants.

The application filed by the appellant herein under Section 439 of the CrPC was rejected by the Special Judge (NIA Act). It is the appellants' case that they have been implicated merely based on confessional statements recorded during the investigation. No incriminating material like money, clothes, wireless sets, etc., was recovered from the present appellants' possession. Even if the charge­sheet is taken as it is in its face value and other material available on record that the appellants were paying extortion money to let road construction work smoothly in the said area, no offences under Sections 38 and 40 would be made out.

Findings of the Court

The Court referred to the case of Thwaha Fasal v. Union of India, where it was held that mere association with a terrorist organization as a member or otherwise would not be sufficient to attract the offence under Section 38 unless the association intends to further its activities. It was remarked,

"Even if an accused allegedly supports a terrorist organization 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 the 1967 Act."

Apart from this, it was held by the High Court that the proviso to Section 43D(5) of the UAPA would apply to a person accused of an offence punishable under Chapters V and VI of the UAPA. In the instant case, the appellants have been charged with offences under Sections 10,13, 17, 38(1)(2), and 40 of the UAPA.

Given that the appellants have also been charged under Sections 38 (1) (2) and 40 of the UAPA, the case against the appellants is that they paid levy/extortion money to the Naxalites for undertaking road construction work in the Kanker district.

The Court also referred to the case of Sudesh Kedia v. Union of India, where the Supreme Court observed that payment of extortion money to a banned/terror organization does not amount to terror funding. It was observed as under:­

"While considering the grant of bail under Section 43­D(5), it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not."

It was also held that the payment of extortion money does not amount to terror funding. It was further held that the activity has to be in connection with terrorist acts as defined in Section 15. Clause (b) of the proviso to sub­section (1) of Section 38 provides that if a person charged with the offence under sub­section (1) of Section 38 proves that he has not taken part in the activities of the organization during the period in which the name of the organization is included in the First Schedule, the offence relating to the membership of a terrorist organization under sub­section (1) of Section 38 will not be attracted. The aforesaid clause (b) can be a defence of the accused. However, while considering the prayer for the grant of bail, we are not concerned with the defence of the accused.

Case Title: Shailendra Bhadouriya & Anr v. the State of Chhattisgarh

Citation: 2022 LiveLaw (Chh) 46

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