'Individual Rights Should Subserve The National Interest': Kerala High Court Cancels Bail Granted To Journalism Student In UAPA Case [Read Judgment]

Individual rights should subserve the national interest, observed the Kerala High Court while setting aside the order passed by Special NIA Court Kochi granting bail to Thwaha Fasal in a UAPA case for alleged Maoist links.

The Division Bench comprising Justices A. Hariprasad and K. Haripal observed that when individual rights are pitted against national interest and security, the latter should prevail. The court observed that the documents seized from the accused carry the seeds of a secessionist ideology.

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.

While considering the appeal filed by Union of India, the bench referred to the provisions of the UAPA Act and observed that if there are materials to infer that the accused have done something to promote or enthuse the activities of a terrorist organisation or done anything supporting its activities with the intention to further its activities, these offences are attracted. "Whenever an offence falling under Chapters IV and VI of the Act is alleged against the accused, on perusal of the case diary or the final report that there are reasonable grounds for believing that the accusation against the said person is prima facie true, the Act restrains the court from releasing him on bail.", the court said.

The bench also observed that the Special Judge had ventured to make a thorough, threadbare analysis into each and every document relied on by the prosecution, as if in a trial. The court said:

"We do not approve the approach made by the learned Special Judge. He is of the firm view, basing on the authorities, that bail is the rule and jail, exception. Even though that is the general perception in ordinary crimes, when the accused faces allegation under a special enactment, his right to be enlarged on bail shall be governed by the provisions of the special statute. In such cases, the provisions under the Code cannot be readily applied. As noticed earlier, Section 43-D(5) of the Act is an exception to the provisions of the Code, which postulates modified applications of certain provisions of the Code. It starts with a non obstante clause. When offence under Chapters IV and VI of the Act is alleged, the court shall not grant bail unless giving liberty to the Prosecutor to address the court. Further, the proviso to Section 43-D(5) works as a statutory injunction on the court in granting bail; if there are prima facie circumstances to believe that the allegations are true, bail cannot be granted as a rule. The Hon'ble Apex Court in Watali (quoted supra) has stated how the materials placed before court have to be understood while considering an application for bail"

The bench further said that the principle, bail is the rule and jail the exception, has no application in such a case, especially when the offences under Chapters IV and VI of the Act are alleged against the accused. The court noted that ignore that the accused had carried only such type of literature or writings which were published by the CPI(Maoist) which is admittedly a proscribed, underworld organisation. 

"If they, as youngsters were interested in understanding and assimilating new and novel ideologies, a bunch of materials published by a particular outfit alone would not have been found in their possession and power. The underlying element of mens rea cannot be overlooked. Therefore, this circumstance alone is sufficient to say, at least at this stage, that they are protagonists of the organisation.", the court added. While setting aside the bail granted to Thwaha, the court observed:

"It also requires to be stated that very many authorities were relied on by the learned Special Judge outside the context. 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 bench, however, did not cancel the bail granted to another accused Allan Shuaib observing that there are numerous mitigating circumstances in his favour. The bench has directed the Special Court to try and dispose of the case pending before it as expeditiously as possible, within one year. While parting with the judgment, the bench also remarked thus:

"We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon'ble Judges who authored the judgments which is unwholesome"

CASE: UNION OF INDIA VS. THWAHA FASAL [CRL.A.No.705,706 OF 2020]

CORAM:  Justices A. Hariprasad and K. Haripal

COUNSEL: ASG P.VIJAYAKUMAR, ADV K.S.MADHUSOODANAN AND ADV S.RAJEEV 

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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