Mere Support To Terrorist Organization Without Intention To Further Its Activities Does Not Attract Section 38/39 UAPA : Supreme Court

In its judgment restoring the bail granted to Thwaha Fasal and Allan Shuhaib, the Supreme Court observed that mere support given to a terrorist organization or mere association with it, is not sufficient to attract offences under Sections 38 and 39 of the Unlawful Activities (Prevention) Act, 1967.

The association and the support have to be with intention of furthering the activities of a terrorist organisation, the bench comprising Justices Ajay Rastogi and Abhay S. Oka observed.

Such intention, according to the court,  can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet. Further, the court reiterated that the restrictions imposed by sub-section (5) of Section 43D per se do not prevent a Constitutional Court from granting bail on the ground of violation of Part III of the Constitution.

In the case of the accused duo, the court said that prima facie there is no material in the charge sheet to project their active participation in the activities of CPI (Maoist). 

The Kerala High Court earlier had allowed the appeal filed by the National Investigation Agency against the September 9 order passed by Special NIA Court, Kochi, granting bail to Thwaha and Allan. Though the bail given to Thwaha was set-aside, the High Court sustained the bail given to Allan on medical grounds and younger age.

The Supreme Court has reversed the High Court's judgment, and has restored the Trial Court's order granting bail. The judgment authored by Justice AS Oka took particular note of the fact the NIA has dropped the offence under Section 20 of UAPA, which relates to membership of terror group, from the chargesheet.

The restrictions on grant of bail as per Section 43D(5) of UAPA are applicable to offences under Chapter IV and VI of the Act. The offences in the present case, falling under Chapter VI, were Sections 38 and 39. Section 38 is offence relating to membership and Section 39 is offence relating to support given to terrorist organization.

The Court noted that the "intention to further the activities of the terrorist group" was a specific condition within the wordings of Sections 38 and 39.

The judgment observed:

13. Thus, the offence under sub-section (1) of Section 38 of associating or professing to be associated with the terrorist organisation and the offence relating to supporting a terrorist organisation under Section 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organisation. To that extent, the requirement of mens rea is involved. Thus, mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with intention to further its activities. Even if an accused allegedly supports a terrorist organisation 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.

The court noted that while deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. It, referring to National Investigation Agency v. Zahoor Ahmad Shah Watali, observed:

If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is.

The court observed that the stringent restrictions imposed by sub-section(5) of Section 43D, do not negate the power of Constitutional Court to grant bail keeping in mind violation of Part III of the Constitution. In this regard, the judgment referred to the recent Supreme Court judgment in Union of India vs. Najeeb.

In the instant case, the Court noted that the material collected against the accused were mostly in the form of books, pamphlets, notes of minutes etc. No overt acts have been alleged against them.

"At formative young age, the accused nos.1 and 2 might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books  concerning CPI (Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of the accused nos.1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation. An allegation is made that they were found in the company of the accused no.3 on 30th November, 2019. That itself may not be sufficient to infer the presence of intention. But that is not sufficient at this stage to draw an inference of presence of intention on their part which is an ingredient of Sections 38 and 39 of  the 1967 Act. Apart from the fact that overt acts on their part for showing the presence of the required intention or state of mind are not borne out from the charge sheet, prima facie, their constant association or support of the organization for a long period of time is not borne out from the charge sheet", the judgment noted.

Allowing the appeal filed by Allen and dismissing that filed by NIA, the court observed:

It is not disputed that the accused no.1 is taking treatment for a psychological disorder. The accused no.1 is a student of law. Moreover, 92 witnesses have been cited by the prosecution. Even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reasonable time as even charges have not been framed. There is no minimum punishment prescribed for the offences under Sections 38 and 39 of the 1967 Act and the punishment can extend to 10 years or only fine or with both. Hence, depending upon the evidence on record and after consideration of relevant factors, the accused can be let off even on fine. As regards the offence under Section 13 alleged against accused no.2, the maximum punishment is of imprisonment of 5 years or with fine or with both. The accused no.2 has been in custody for more than 570 days.

Senior Advocate Jayanth Muthuraj argued for Thwaha Fasal

Senior Advocate R. Basant, Advocate Raghenth Basant argued for Allan Shuhaib

Additional Solicitor General of India (ASG) argued for Union of India 

Also Read : UAPA - If Chargesheet Does Not Reveal Prima Facie Case, Embargo For Bail Under Sec 43D(5) Won't Apply : Supreme Court

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