Thwaha Fasal vs Union of India

1 and 2 – On State appeal, High Court set aside bail granted to accused no. 2 while upholding bail granted to accused no. 1 – Hence instant appeal by accused no. 2 as well as by State – Held: Mere association with a terrorist organisation is not sufficient to attract s.38 and mere support given to a terrorist organisation is not sufficient to attract s.39 – The association and the support have to be with intention of furthering the activities of a terrorist organisation – In a given case, such intention 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 – 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 their active participation in the activities of CPI (Maoist) – Order of Special Court granting bail to accused no.2 is restored. Unlawful Activities (Prevention) Act, 1967: s.43D – For deciding the issue of prima facie case contemplated by sub-section

(5) of s.43D, the case against the both accused only under ss.38 and 39 is required to be considered – In view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under s.20, a prima facie case of the accused being involved in the said offence is not made out at this stage – Sub-section (5) of s.43D will not apply to s.13, as s.13 has been incorporated in Chapter III of the 1967 Act.

Unlawful Activities (Prevention) Act, 1967: s.43D – The restrictions imposed by sub-section (5) of s.43D per se do not prevent a Constitutional Court from granting bail on the ground of violation of Part III of the Constitution.

Disposing of the appeals, the Court

HELD: 1.1 Clause (m) of Section 2 of the Unlawful Activities (Prevention) Act, 1967 defines “terrorist organisation”. It is defined as an organisation listed in the First Schedule. CPI (Maoist) has been listed at Item no.34 in the First Schedule. Chapters III onwards of the 1967 Act incorporate various offences. Chapter IV has the title “punishment for terrorist act”. Clause (k) of Section 2 provides that “terrorist act” has the meaning assigned to it under Section 15. In this case, there is no allegation against the accused nos.1 and 2 of committing any terrorists act. The offence punishable under Section 20 is attracted when the accused is a member of a terrorist gang or a terrorist organisation which is involved in terrorist act. Section 20 is not attracted unless the terrorist gang or terrorist organisation of which the accused is a member is involved in terrorist act as defined by Section 15. [Paras 8, 10][815-C-E; 816-G; 818-C-D]

1.2 On plain reading of Section 38, the offence punishable therein will be attracted if the accused associates himself or professes to associate himself with a terrorist organisation included in First Schedule with intention to further its activities. In such a case, he commits an offence relating to membership of a terrorist organisation covered by Section 38. The person committing an offence under Section 38 may be a member of a terrorist organization or he may not be a member. If the accused is a member of terrorist organisation which indulges in terrorist act covered by Section 15, stringent offence under Section 20 may be attracted. If the accused is associated with a terrorist organisation, the offence punishable under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organisation with intention to further its activities. The association must be with intention to further the activities of a terrorist organisation. Clause (b) of proviso to sub-section (1) of Section 38 provides that if a person charged with the offence under sub-section (1) of Section 38 proves that he has not taken part in the activities of the organisation during the period in which the name of the organisation is included in the First Schedule, the offence relating to membership of terrorist organisation under sub-section (1) of Section 38 will not be attracted. [Para 11][818-E-H; 819-A]

1.3 Section 39 deals with the offences relating to support given to a terrorist organisation. It covers three kinds of offences under clauses (a), (b) and (c) of sub-section (1) of Section 39. The offences punishable under clauses (a), (b) and (c) of sub-section

(1) of Section 39 are attracted only when the actions incorporated therein are done with intention to further the activities of a terrorist organisation. The activities must have some connection with terrorist act. 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 sub-section (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. [Paras 12, 13][819-B-F]

2.1 The accused no.2 has been charged with the offence punishable under Section 13. It is essentially an offence of committing unlawful activities as defined under Clause (o) of Section 2. The said offence has been alleged on the ground that two banners were found in the house of the accused no.2 which according to the prosecution invite public support to freedom movement of Jammu and Kashmir. Section 13 does not form a part of Chapter IV or VI. The stringent conditions for grant of bail in sub-section (5) of Section 43D will apply only to the offences punishable only under Chapters IV and VI of the 1967 Act. The offence punishable under Section 13 being a part of Chapter III will not be covered by sub-section (5) of Section 43D and therefore, it will be governed by the normal provisions for grant of bail under the Code of Criminal Procedure, 1973. The proviso imposes embargo on grant of bail to the accused against whom any of the offences under Chapter IV and VI have been alleged. The embargo will apply when after perusing charge sheet, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, if after perusing the charge sheet, if the Court is unable to draw such a prima facie conclusion, the embargo created by the proviso will not apply. [Paras 15, 17][819-H; 820-D-F; 821-B-D]

National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 : [2019] 5 SCR 1060 – relied on.

2.2 Under sub-section (1) of Section 45 of the 1967 Act, the Court is not empowered to take cognizance of any offence under Chapters IV and VI without previous sanction of the Central Government. Procedure for obtaining sanction has been laid down in sub-section (2) of Section 45. Paragraphs 2 and 3 of the order of sanction show that though the offence was registered under Sections 20, 38 and 39 of the 1967 Act, by a letter dated 13th April 2020, NIA did not seek sanction for prosecuting any of the three accused for the offence punishable under Section 20. Sanction was sought to prosecute the accused nos.1 and 2 for the offences punishable under Sections 38 and 39. In addition, a sanction was sought to prosecute the accused no.2 under Section

13. Paragraph 4 of the order refers to the authority appointed by the Central Government under sub-section (2) of Section 45 consisting of a retired Judge of a High Court and a retired Law Secretary, as well as the report submitted by the said authority. Paragraph 6 of the said order records prima facie satisfaction of the Central Government that a case is made out against the accused under the provisions of the Act of 1967, as mentioned in letter dated 13th April 2020. Thus, sanction under sub-section

(1) of Section 45 has not been accorded for prosecuting the accused for the offence punishable under Section 20 of the Act of 1967 and, therefore, the Special Court under NIA Act cannot take cognizance of the offence punishable under Section 20. Therefore, for deciding the issue of prima facie case contemplated by sub-section (5) of Section 43D, the case against the both accused only under Sections 38 and 39 is required to be considered. In view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, a prima facie case of the accused being involved in the said offence is not made out at this stage. [Paras 21, 22] [824-B-H; 825-A-B]

2.3 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. The material forming part of charge sheet is in the form of books and other printed material found in the custody of the accused nos.1 and 2 and the material found on the digital devices seized from the accused no.2. The judge of the Special Court in his detailed judgment has categorised the seized material into 12 categories in paragraph 59. As regards the accused no.1, certain documents were found in the shoulder bag carried by him when he was apprehended. FSL report shows that the cell phone of the accused no.1 had a video clip with the title “Kashmir bleeding”, as well as portraits of various communist revolutionary leaders, like Che Guvera and Mao Tse Tung, as also portrait of Geelani, a Kashmiri leader. Copies of certain posters were also found. Pdf files extracted showed that it contained material regarding abrogation of Article 370 of the Constitution and various other items. The photographs also showed that the accused no.1 attended protest gathering conducted in October 2019 by Kurdistan Solidarity Network. As regards the accused no.2, on his devices, images of CPI (Maoist) flag, files relating to constitution of central committee of CPI (Maoist), files relating to CPI (Maoist) central committee programme, image of hanging Prime Minister, various newspaper cuttings relating to maoist incidents were found. A book was also seized relating to encounter with PLGA (Maoist) at Agali. The Special Judge noted that the face book account, email accounts and call details of the accused do not contain any incriminating evidence. High Court has not recorded that any incriminating material was found therein. [Paras 23, 25, 28, 29, 30][825-C; 827-E-F; 830-E-H]

2.4 Another piece of evidence against the accused no.2 is that during the search of his residence, he shouted slogans, such as inquilab zindabad and maoisim zindabad. He also shouted slogans containing greetings to the brave martyrs who died in an armed encounter between Maoist members and police. Another material forming a part of the charge sheet is that absconding accused no.3 visited the place where the accused no.1 was staying as a paying guest. Material was found regarding collection of membership fees and other amounts by the accused for the benefit of the said organization. Taking the charge sheet as correct, at the highest, it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation. Thus, as far as the accused no.1 is concerned, it can be said he was found in possession of soft and hard copies of various materials concerning CPI (Maoist). He was seen present in a gathering which was a part of the protest arranged by an organisation which is allegedly having link with CPI (Maoist). As regards the accused no.2, minutes of the meeting of various committees of CPI (Maoist) were found. Certain banners/posters were found in the custody of the accused no.2 for which the offence under Section 13 has been applied of indulging in unlawful activities. [Paras 31, 32, 33][831-A-E]

2.5 Mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39. The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention 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. 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. [Para 34][831-F-H; 832-A-D]

2.6 The judge of the Special Court after examining the entire materials on record of the charge sheet noted that there is no prima facie material to show intention on the part of both the accused to further the activities of the terrorist organisation. Perusal of the impugned judgment of the High Court shows that it has considered various aspects, such as the accused were carrying their mobile phones when they were apprehended on

30 th November 2019 and that the documents which were possessed by the respondents were not out of curiosity or for intellectual pursuits. The High Court observed that the Special Judge has oversimplified the matter. However, the High Court did not notice that by taking the material collected during the investigation which forms a part of the charge sheet as it is, the Special Court had recorded a prima facie finding regarding the absence of any material to show intention on the part of the accused to further the activities of CPI (Maoist). The High Court has not recorded prima facie finding on this aspect. By applying the law laid down in the case of Watali, there were no reasonable grounds for believing that the accusations against the accused nos.1 and

2 of commission of offences under Sections 38 and 39 were prima facie true. [Para 36][832-E-H; 833-A]

3.1 There are other relevant factors which need consideration. The Special Court while enlarging the accused nos.1 and 2 on bail had imposed most stringent conditions, such as furnishing of bail bonds of Rs. One lakh with two sureties each for the like amount with further condition that one of the sureties shall be one of the parents of the accused and the other surety, shall be a relative of the accused. There was a condition imposed of marking attendance on every first Saturday of every month at local police station and also of not associating in any manner or supporting in any manner activities of CPI (Maoist) and all its formations. The accused nos.1 and 2 were directed to not leave territorial limits of the State of Kerala without permission of the Special Court. Moreover, SHO of the concerned police station was directed to monitor the activities of both the accused. It is not the case of the prosecution that any conditions were breached by any of the accused after they were enlarged on bail. [Para 37][833-A-D]

3.2 As held in the case of K.A. Najeeb, 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. 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. [Para 38] [833-D-G]

Union of India v. K.A. Najeeb (2021) 3 SCC 713 – relied on

3.3 It is true that without recording a satisfaction as contemplated by sub-section (5) of Section 43D, the order granting bail to the accused no.1 could not have been confirmed by the High Court. However, taking the materials forming part of the charge sheet as it is, the accusation against both the accused of the commission of offences punishable under Sections 38 and

39 does not appear to be prima facie true. [Para 39][833-H; 834-A-B]

People’s Union for Civil Liberties and Anr. v. Union of India (2004) 9 SCC 580 : [2003] 6 Suppl. SCR 860; Arup Bhuyan v. State of Assam (2011) 3 SCC 377 : [2011] 2 SCR 506; State of Gujarat v. Girish

Radhakrishnan Varde (2014) 3 SCC 659 : [2013] 12 SCR 930 ; Mahipal v. Rajesh Kumar alias Polia and Anr. (2020) 2 SCC 118; Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 : [2005] 3 SCR 345 – referred to