UAPA | Supreme Court Confirms Gauhati HC Order Setting Aside Discharge Of Assam MLA Akhil Gogoi, Grants Bail

A bench of Justices V. Ramasubramanian and Pankaj Mithal however granted bail to the Assamese legislative assembly member during pendency of the trial, subject to such terms and conditions as may be imposed by special court.

The High Court had remanded the discharge application for fresh consideration after finding fault with the trail court for not granting sufficient time to the NIA to contest the matter.

The Supreme Court had reserved its verdict in Gogoi's appeal in March after hearing the submissions from the parties. Senior advocate Huzefa Ahmadi told the court that sending the embattled legislator back to jail after being ‘at liberty’ for almost two years on the basis of flimsy evidence, some of which was from before 2009 would be a ‘travesty’ of justice. Besides, the high court ought not to have made observations on the merits of the case while setting aside the discharge order and remanding it to the trial court, the senior counsel submitted. Therefore, he urged the top court to first, modify the high court’s order to the extent that it refused Gogoi’s ancillary prayer for bail and grant him protection from arrest, and second, direct that the trial court ought to consider the matter remanded to it, “without being truncated by the observations of the high court”. “This is clear case of political vendetta,” Ahmadi further asserted in defence of the Assamese legislative assembly member.

These contentions were vehemently opposed by Additional Solicitor-General Aishwarya Bhati who appeared for the National Investigation Agency. She argued that the opposite side was attempting to minimise the seriousness of the allegations against the accused. She said, “Maoist organisations are making the country bleed by a hundred cuts, if not a thousand cuts. They are waging a war against the government, especially the security agencies, which are our protectors. The rule of law itself is threatened by these organisations.”

Background

Gogoi, an independent legislator representing Assam’s Sibsagar and president of a regional, progressive party, Raijor Dal, was arrested in December 2019 when the protests against the Citizenship Amendment Act were at their peak. He was booked under Sections 120B (criminal conspiracy), 124A (sedition), 153A (promoting enmity between different communities), and 153B (making imputations and assertions prejudicial to national integration) of the Indian Penal Code, 1860. Various provisions of the UAPA were also pressed into service.

Subsequently, even while incarcerated, he contested and won the assembly elections in 2021, defeating Bharatiya Janata Party’s Surabhi Rajkonwari. He was subsequently released after spending one and a half years in detention for his alleged role in the anti-CAA agitation, when a special NIA court discharged him, and three other persons, on the ground of the non-availability of material on record on the basis of which charges could be framed.

However, earlier in February, the high court set aside the order of the special court which was challenged by the federal agency. While remanding the matter back to the court for fresh charge-hearing against all the four accused, a division bench of Justices Suman Shyam and Malasari Nandi observed, “The impugned judgment has the trappings of an order of acquittal rather than an order of discharge. As such, the approach of the special judge, NIA, in our considered opinion, was clearly erroneous in the eye of law, thus having a vitiating effect on the impugned judgment.”

It is against this judgement from which the legislator has sought an appeal before the top court, arguing, inter alia, that the high court failed to even examine whether a prima facie case was made out in the matter before overturning the special court’s verdict. Nothing in his conduct could be traced back to an alleged controversy to destroy the national integrity or any terrorist activity, the Raijor Dal president has asserted. The MLA has also been critical of the BJP-led government ‘misusing’ the National Investigation Agency and the anti-terror statute to muzzle dissent.

The bench, while issuing notice in Gogoi’s appeal, had enjoined the federal agency from taking the legislative assembly member into custody till Friday, February 24, when the matter was scheduled to be taken up next. Subsequently, the interim protection was extended a number of times.

In the last hearing, Ahmadi had defended the legislator saying that he was “a political leader and elected representative of the people” who was being targeted for being critical of the ruling dispensation, However, the Solicitor-General for India, Tushar Mehta had vehemently objected to this assertion. Accusing Gogoi of being the linchpin of a network of Maoist sympathisers and supporters, Mehta had exclaimed, “Elected representatives cannot simultaneously be terrorists.”

The plaint was filed through Supreme Court Advocate-on-Record Sahil Tagotra. Gogoi was represented by Senior Advocate Huzefa Ahmadi, Advocate Ninad Laud, and Tagotra.

Case Title

Akhil Gogoi v. The State (National Investigation Agency) & Ors. | Special Leave Petition (Criminal) No. 2504 of 2023

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