"What Sort Of Peaceful Protest Was Being Carried Out When He Was Photographed Brandishing Sword?": Gauhati HC Denies Bail To 2 Accused Booked Under UAPA Charges

The Bench of Justice Kalyan Rai Surana and Justice Ajit Borthakur specifically said,

"The materials on record prima facie disclose culpability of the appellants and their involvement in the commission of alleged offences as more fully mentioned in the charge sheet."

The matter before the Court

The Appellants/Accused filed an appeal under section 21 of the National Investigating Agency Act, 2008, which was directed against the impugned order dated 08^th July 2020, passed by the Special Judge, NIA, Assam thereby rejecting the prayer for bail to the appellants.

The two accused are charged for offences under Sections 120B, 147, 148, 149, 153A, 153B, 336, 353, 326 and 307 of IPC and Sections 15(1) (a) read with 16 of the UAP Act 1967.

[NOTE: Section 16 belongs to Chapter IV of the 1967 Act. The Subject areas of this penal section of the UA(P) Act is related to Punishment for a "Terrorist act". While Section 15 of this act defines what a "Terrorist Act" is.]

Facts of the Case

As per the Prosecution's case, on 09^th December 2019 at about 7.00 pm, there was a gathering of about 6,000 persons to protest against the Citizenship Amendment Act at Chabua town.

The crowd was allegedly headed by Akhil Gogoi and it blocked the railway track as a part of their economic blockade and the effort of the District Administration to remove the blockade went in vain.

It was also stated that the leader of the crowd and some others criminally conspired against the police and they threw stones at the informant and his party and as a result one of the stones hit the Sub- Inspector of Police mouth.

Court's Observations

At the outset, taking into account the charge-sheet filed against them, which refers to burning of tyres (i.e. use of inflammable substances) by the protestors to cause rail, highway and internal road blockade and damaging vehicles plying on road with a view to terrorize innocent public on being provoked by the appellants taking the lead role in Tinsukia District, as thus, the Court said,

"The Court is constrained to hold that the four factors of clause (a) of subsection (1) of section 15 of 1967 Act is found to be prima facie attracted in this case in hand."

Further, the Court opined,

"On being provoked by the appellants, as the violent protests by burning of tyres had caused rail, highway and internal road blockade, the same is sufficient to give rise to a critical law and order situation that as a whole had threatened the security of the State."

Importantly, the Court remarked,

"The counsel for the appellants did not make any attempt to explain as to what sort of peaceful protest was being carried out by the appellant no.1, when he was photographed brandishing a sword before a large crowd while actively participating in the protest programme. By use of violence the appellant led mob had brushed aside the noble concept of non- violent protest, which is popularly known as Mahatma Gandhi's concept of satyagraha and that such conduct of paralyzing the Govt. machinery, causing economic blockade, causing enmity between groups, disruption of public peace an widespread disharmony and dissatisfaction towards the Govt., are acts which are prejudicial for national integration and such acts squarely falls within the definition of "terrorist act" as defined in section 15 of the 1967 Act."

The Court also said that it can hardly subscribe to the proposition that the act of burning down of a railway station and vandalizing some more railway stations cannot be termed to be a "terrorist act".

Having regard to the requirement of section 43D(5) of the UAPA, the Court made a probe into the matter so as to enable it to prima facie arrive at a finding that the materials collected against the appellants during investigation may be sufficient to lead to conviction.

The Court was also of the view that the materials relied upon by the prosecution prima facie shows that the appellants had not only led the protests, but had provoked people to join him and that upon directions issued by the accused no.1, the supplies essential to life of the community of the Country was disrupted in the State.

Lastly, finding no infirmity in the conclusion arrived at by the Special Judge (NIA) that there are reasonable grounds for believing that the accusations against the appellants are prima face true, the High Court dismissed their appeal.

Case title - Bhaskarjit Phukan and Bhupen Gogoi v. National Investigation Agency [Case No. : Crl.A./171/2020]

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