Court No. – 49

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 11679 of 2010

Petitioner :- Smt. Seema Azad
Respondent :- State Of U.P.
Petitioner Counsel :- Ankur Sharma,Daya Shankar Mishra,Ravi Kiran Jain
Respondent Counsel :- Govt. Advocate

Hon’ble Shri Kant Tripathi,J.
The present bail application has been filed by the applicant Smt. Seema Azad in the case crime no. 37/2010, under sections 18, 20, 21, 23(2) of the Unlawful Activities (Prevention) Act, 1967 (in short ‘Act of 1967’) and section 120, 121, 121-A of the Indian Penal Code (in short ‘IPC’), police station Khuldabad, district Allahabad.
Heard Mr. Ravi Kiran Jain, learned senior counsel assisted by Mr. Ankur Sharma for the applicant and the learned AGA for the State and perused the record.
Mr. Ravi Kiran Jain, the learned senior counsel submitted that there is no evidence against the applicant except her own statement and the statement of co-accused Vishwa Vijai @ Kamal, who is the husband of the applicant. According to the F.I.R. the applicant Smt. Seema Azad and her husband are members of terrorist organisation, Communist Party of India (Maoist), [in short ‘CPI (Maoist)’] and they were found in possession of anti national literatures specified in the F.I.R. Mr. Jain further submitted that mere possession of pamphalates, magazines and other documents does not constitute the offences under sections 18, 20, 21 and 23(2) of the Act of 1967 and sections 120, 121 and 121-A IPC. There is no material to support that the applicant is an active member of the CPI (Maoist), which is alleged to be a terrorist organisation, within the meaning of the Act of 1967, and has been specified as such in the schedule to the said Act.
Mr. Jain placed reliance on Arup Bhuyan vs. State of Assam, AIR 2011 SC 957 in support of his submissions. In paragraphs 12, 13, 14 and 15 of the judgment, the Apex Court held as follows:
“12. In State of Kerala Vs. Raneef, 2011 (1) SCALE 8, we have respectfully agreed with the U.S. Supreme Court decision in Elfbrandt Vs. Russell, 384 U.S. 17 (1966) which has rejected the doctrine of ‘guilt by association’. Mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence (See : also the Constitution Bench judgment of this Court in Kedar Nath Vs. State of Bihar, AIR 1962 SCC 955 para 26).
13. In Clarence Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) the U.S. Supreme Court went further and held that mere “advocacy or teaching the duty, necessity, or propriety” of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed “to teach or advocate the doctrines of criminal syndicalism” is not per se illegal. It will become illegal only if it incites to imminent lawless action. The statute under challenge was hence held to be unconstitutional being violative of the First and Fourteenth Amendments to the U.S. Constitution.

14. In United States Vs. Eugene Frank Robel, 389 U.S. 258, the U.S. Supreme Court held that a member of a communist organisation could not be regarded as doing an unlawful act by merely obtaining employment in a defence facility.

15. We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution.”

16. In our opinion, Section 3(5) can not be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”

The aforesaid case of Arup Bhuyan (supra) was under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short ‘TADA Act’), which was, according to Mr. Jain, pari materia with the Act of 1967. In para 16 of the aforesaid judgment, the Apex Court further held that section 3(5) of the TADA Act can not be read literally otherwise it will violate Article 19 and 21 of the Constitution of India. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence. It was lastly submitted by Mr. Jain that the applicant is in jail from 7.2.2010 without any evidence/reasonable basis, therefore, the applicant, who is a woman, is entitled to bail.
The learned AGA, on the other hand, submitted that the CPI (Maoist) is a terrorist organisation and has been declared as such by the notification dated 22.6.2009 (Annexure CA-1). He further submitted that various incriminating pamphalets, articles and other materials were recovered from the possession of the applicant and her husband at the time of their arrest and there is adequate evidence that the applicant is an active member of the aforesaid terrorist organisation and she had been actively associated with the illegal activities of the CPI (Maoist) against the security and integrity of the nation. Learned AGA further submitted that the investigating officer had taken the applicant on police remand and on her pointing out recovered some more incriminating articles like Dastak magazine, Operation Green Hunt, Ganga Express Way, twenty six page confidential documents and a Nokia Mobile Phone set, therefore, it can not be said to be a mere case of possession of pamphlets, magazines and other articles. Learned AGA further submitted that the aforesaid twenty six page confidential documents so recovered were provided to the applicant by one Balraj @ Bachcha Prasad Singh, a Polit-bureau member of CPI(Maoist), who made such statement during the investigation. The 26 page confidential documents so recovered, prima facie, reveal that the activities of the applicant were connected with the propaganda of Agenda relating to insurgency operation against the State. It was next submitted that the documents recovered on the pointing of the applicant match with the documents recovered from the laptop through Forensix Science Laboratory, Hyderabad. The laptop was recovered from the possession of the aforesaid Balraj @ Bachcha Prasad Singh. Most of the States like Uttar Pradesh, Madhya Pradesh, Chhattisgarh, Bihar, Jharkhand and Maharashtra are affected from the insurgency operation of the CPI (Maoist) on account of which 75 CRPF personnel lost their lives. The responsibility of such killing has been undertaken by the CPI (Maoist). If the applicant, who is an active member of the aforesaid organisation, is enlarged on bail, she will tamper with the evidence and would flee away from the clutches of the law, therefore, she is not entitled to bail. It was further submitted that the investigating agency is still investigating the matter and has collected so many incriminating evidence against the applicant.
At the stage of bail, when the investigation is still in progress, it is not proper to express any opinion on the merits of the case.
The Apex Court has settled the legal principles in bail matters relating to heinous crimes like murder etc. in various decisions and they are the cases of State of U.P. through CBI v. Amarmani Tripathi, 2005 (53) ACC 484 (SC), Prahlad Singh Bhati v. NCT, Delhi and another, 2001 (42) ACC 903 (SC), Ram Govind Upadhyay v. Sudarshan Singh and others, 2002 (45) ACC 45 (SC), State of Maharashtra v. Ritesh, 2001 (43) ACC 547 (SC), Pancham Mishra v. Digambar Mishra and others, 2005 (51) ACC 929 (SC), Vijay Kumar v. Narendra and others, (2002) 9 SCC 364, and Anwari Begum v. Sher Mohammad and another, 2005 (53) ACC 766 (SC). The Apex Court has propounded the principle that at the stage of bail the Court should avoid elaborate examination of the evidence and detailed reasons touching the merits of the case which may cause prejudice to the accused but it is also necessary to indicate the reasons for prima facie concluding why bail is being granted particularly where the accused is charged of having committed a serious offence. The discretion conferred on the Court in bail matters should be exercised judiciously, cautiously and strictly in compliance with the settled principles, which among other circumstances are:
1.Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
2.nature and gravity of the accusation;
3.severity of the punishment in the event of conviction;
4.danger of the accused absconding or fleeing, if released on bail;
5.character, behaviour, means, position and standing of the accused;
6.likelihood of the offence being repeated;
7.reasonable apprehension of the witnesses being influenced; and
8.danger, of course, of justice being thwarted by grant of bail.
Keeping in view the facts and circumstances of the case, gravity of the crime, complicity of the applicant and the nature of evidence, I do not consider it proper to release the applicant on bail.
The bail application is, therefore, rejected.
Order Date :- 26.5.2011