UAPA | Supreme Court Reserves Verdict in Appeal by Assam MLA Akhil Gogoi Against High Court Setting Aside Discharge Order

Senior Advocate Huzefa Ahmadi, appearing for Gogoi, told a division bench of Justices V. Ramasubramanian and Pankaj Mithal 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 a 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.”

Proximity and relevance of evidence relied on by prosecution

“The first protected witness admitted, and this has been placed on record by the prosecution, that when he had told Gogoi about Maoist training in the state, the MLA categorically said that there was no need to indulge in such kind of activity in Assam then,” the senior counsel told the bench. The incidents mentioned in the statement of the second protected witness, Ahmadi further argued, were from before 2009.

“Incidents from 2009 are sought to be used in 2020. The trial judge also said that there has to be some proximate nexus. Also, it must be noted that the Communist Party of India (Maoist) became a proscribed organisation in July 2009. He cannot be implicated for alleged participation in a political organisation which was not proscribed then,” Ahmadi argued.

Solicitor-General for India Tushar Mehta interjected, “Communist Party of India (Maoist) was never a political organisation. It may have been proscribed at any point in time, but it was never a political organisation. It was doing, to put it mildly, unlawful activities.”

Bhati also told the bench that it was not easy to get clinching evidence of the current involvement of operatives. “The available statements show the link between the calculated efforts to subvert the government and the accused. It is not that after 2009, Akhil Gogoi turned into a public leader and a saint,” she said.

Nature of allegations under the UAPA

The charges levelled against Gogoi by the National Investigation Agency were called into question, with Ahmadi saying, inter alia, “If calling bandhs for one or two days threatened the economic security of the nation, then most of our political leaders should be charged under the UAPA.” He also pointed out that the special NIA court found no evidence to hold him guilty personally or vicariously for specific incidents of vandalism during various agitations.

However, the Additional Solicitor-General protested, “The charges under the UAPA are not with regard to bandhs, peaceful dharnas, or shutdowns.” She added, “This is a far graver charge of supporting terrorist organisations waging a war against an elected government and using various illegal methods to achieve its ends.” The allegations against him are very serious and the opposite side is trying to minimise their seriousness, Bhati exclaimed, taking the court through the first information reports filed against Gogoi and the charge sheets subsequently filed.

Observations made by high court while setting aside discharge order

Ahmadi’s primary legal contention was that the high court, which overturned the discharge order on the purported ground of a violation of natural justice, ought not to have made observations on the merits of the case after reaching this conclusion because it was prejudicial for his case. This, Ahmadi claimed, amounted to a ‘nudge nudge wink wink’ order. He said:

“As a matter of law, once the court concluded that the violation of principles of natural justice called for a remand, it should have abstained from making any observations on the merits of the case because these would completely truncate Gogoi’s case. Secondly, he has been put in a difficult position because the high court makes these observations while refusing to consider in detail, his submissions supporting the reasoning of the trial court. In three places, the judge said that he was not going into details, and those were ultimately for the trial court to consider. At the same time, these kinds of observations are made on the merits of the case. It amounts to a ‘nudge nudge wink wink’ order.”

We will not come in the way of this court directing that the discussion by the high court would be limited to the purpose of discharge, Bhati revealed. “However, these observations were required to be made in view of the trial court’s observations. The high court, as a constitutional court, when dealing with observations by a subordinate court, has to give cogent reasons.”

High court’s refusal to grant Gogoi bail

“Gogoi was in jail for 567 days. Pursuant to the order of discharge, he was at liberty from July 2021 for about one year and nine months. In the interim, while he was out, there was no complaint against him or allegation of misuse of that liberty,” Ahmadi submitted. The senior counsel also told the bench that subsequent to his release, Gogoi was elected as a legislative assembly member. The high court refused to consider his ancillary plea to grant him bail despite the grounds for discharge being ‘good’ grounds for bail, Ahmadi pointed out, “Which means that now a bail application will have to be moved, the prosecution will ask for time, as it ordinarily does, and probably, Gogoi will have to go back to jail after being at liberty for so long.”

Bhati, however, remonstrated against this contention, asking, “How can anyone have a reservation with respect to the high court directing that any bail application will be considered in accordance with the law?” No exceptions may be carved out merely on the ground that an accused is an elected representative, she said. “Be you ever so high, the law is always above you!”

The top law officer also pointed out that the top court had, in February 2021, declined the legislator’s request for bail. “The aspect of bail was considered by this court in a manner known to law and rejected. A discharge challenge cannot now lead to arguments on bail. To find this window is not only wholly unwarranted but would also be setting a dangerous precedent.”

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 central 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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