LIVELAW NEWS NETWORK11 Sep 2020 3:42 AM GMT
“A provocative thought does not ipso facto prove preparation for crime”, the court observed.
A Special Court in Kochi granted bail to two students arrested in Kerala over alleged Maoist links, after nearly ten months of incarceration, observing that the National Investigation Agency failed to establish a prima facie case under the Unlawful Activities Prevention Act (UAPA), 1967, against the accused.
In the case, NIA had submitted chargesheet against Allan Shuhaib (20) and Thwaha Fasal(24) – students of law and journalism respectively – invoking offences under Sections 38 and 39 of the UAPA which deal with association with a terrorist organization and supporting it with the intention to further its activities. The accused were also charged with Section 13 of the UAPA (punishment for unlawful activity) and 120B of the Indian Penal Code (criminal conspiracy).
At the outset, the Court noted that the bar against grant of bail under Section 43D(5) of UAPA is not applicable if there are no reasonable grounds to believe that the accusations are “prima facie true”.
Referring to the SC decision in NIA vs Zahoor Ahmad Shah Watali (2019), the Court said that if a “rational and reasonable doubt” is felt regarding the prosecution case, it will not be precluded from the grant of bail.
Judge Anil K Bhaskar of the Special NIA Court, in the 64-page judgment, cataloged the evidence cited by the prosecution into 12 categories as below :
- Pamphlets/notices/writings issued/authored by various organizations said to be the frontal organizations of CPI(Maoist) -seized from the possession of the accused.
- Evidence to prove the participation of the accused in the activities and programs of the so-called front organizations.
- Pamphlets/notices/writings authored by CPI(Maoist) for distribution among the public- seized from the possession of the accused.
- Writings/banners prepared by the accused themselves for and on behalf of CPI(Maoist) for exhibiting in public.
- Literature/reading materials on communist ideology -seized from the possession of the accused.
- Writings/booklets issued by CPI(Maoist) for internal circulation among its cadres – seized from the possession of the accused.
- Evidence to prove that the accused strictly followed the instructions issued by CPI(Maoist) in their movements and activities.
- Evidence to prove a series of conspiracy meetings by the accused with underground part-time and professional members of CPI(Maoist).
- Evidence to prove the strong inclination of the accused towards extremist ideology and acceptance of the path of violence to achieve the ultimate objective of CPI(Maoist) organization.
- Writings/photos/videos supporting the dissections and disruptive forces in Jammu and Kashmir who are trying to destabilize India- seized from the accused.
- The similarity of materials seized from the possession of the accused and those seized in relation to crimes registered for encounters with militant Maoists.
- Evidence to prove that the accused are keeping files written in coded language.
The Court observed that the notices, pamphlets, banners, etc., seized from the accused related to “burning social and political issues” such as calling for implementation of Gadgil Committee report for the protection of western ghats, condemnation of encounter killings of Maoists, protests against police atrocities, abrogation of J&K special status, etc. The programmes and activities projected by the prosecution were public protests related to current issues, the court noted.
“Right to protest is a constitutionally guaranteed right. It is well settled that “Government established by law” has to be distinguished from persons for the time being engaged in carrying on the administration. A protest against policies and decisions of the government, even if it is wrong a wrong cause, cannot be termed as sedition or an intentional act to support cession or secession”, the court observed.
The Court further noted the mere possession of books on Communist ideology, Maoism, class struggle, etc., does not prove anything adverse against the accused.
“It becomes adverse only when there is any positive act from the side of the accused to instigate violence. Prima facie there is nothing to suggest any overt act on the side of the accused in this regard”, the Court said.
The Court also particularly noted that the NIA dropped Section 20 of UAPA(which relates to membership of banned organization) from the chargesheet. So, the Court said that even the NIA does not have a case that the accused are members of Maoist organizations.
Scribblings in diary
The NIA cited the private diary of Allan to allege that he had adopted the path of violence. The diary had entries like :
“Fight with guns, fight against the government, together as one power. As the bullets fire from AK47 gun, each bullets against the police. When the enemy attacks, we withdraw. When the enemy rests, we disturb. When the enemy withdraws we attack. When the enemy is gone, we move forward. A new world awaits. Hold on to the guns, the time to pull the trigger is here”.
In this regard, the Court termed that these could be “immature thoughts” which do not layout any blueprint for any specific attack and that it appeared to be a generalized view about people’s revolution.
“A diary is a place where you record events, experiences and other personal things that may interest you, hurt you or pain you. You can write about whatever you like, free of outside judgment or criticism. It should be an extension of mind, safe and free. If the writings relate to an event or an experience, definitely it gains much evidentiary value. But if it is simply writing down one’s thoughts and feelings it will take us nowhere in drawing any definite conclusions. Even stray incidents of gross injustice, violation of basic human rights, disturb one’s mind though he is not directly affected. In such situations mind often revolts, intrusive thoughts flow into. All these will generate emotional tension, stress and strain. One among the several outlets to relieve emotional tension and stress is writing diary. Some will jot down everything they feel. It is a process of cleansing or purging one’s emotions but on paper”, the Court observed in this context.
“A provocative thought does not ipso facto prove preparation for crime”, the court observed.
Further, the Court took into account the fact that Allan was having psychiatric issues of depression and mood disorder and used to take medicines. So, the possibility of the first accused being emotionally tense also cannot be ruled out.
“Since there is no overt act of violence attributed against the first accused, at this stage, the scribbling in his diary does not satisfy that he had adopted the path of violence”, the Court said.
Likewise, the slogans allegedly shouted by the accused persons supporting Naxalbari movement can only be taken as their inclination towards the Maoist ideology and does not mean that they are acting to further the objectives of the banned organization.
The Court further stated that the fact the books and video-clips found with the accused were the same which were found with slain Maoists does not lead to any conclusion as those were not banned books or clips.
The scribblings in short words, projected by the NIA as code words, do not give any link to any secret activity, the court said.
The Cout also highlighted the fact that the books, pamphlets, banners etc., were freely kept in the houses of the accused without any concealment.
The oral statements of the witnesses also did not indicate that the accused abetted terrorist or unlawful activities.
“Prima facie, there exists many missing links in establishing that the accused were cadets of CPI(Maoist) organization and their movements are controlled by the organization”, the Court said.
The Court noted that the first accused was a regular student and that the second accused was working and earning his livelihood and pursuing his studies through distant education program. Both are fully engaged in their educational and social life. It can never be said that their movement and activities are wholly controlled by the banned organization.
“It is to be taken note that, though initially the accused were booked for the offence under Section 20 of the UAPA for being member of terrorist organization, after the completion of the investigation, Section 20 was dropped from the chargesheet. Right now, even the prosecution doesn’t have a case that accused are members of the banned organization. Therefore, prima facie, it cannot be said that accused are members of CPI(Maoist) party and that their movements and activities are fully controlled by the internal ciruclations of the banned organization”, the Court noted in the order.
Overall, the Court said that the evidence on record, at best, suggested that the accused had “leanings” towards Maoist ideology, but they did not indicate any culpability for promoting or facilitating terrorist activities.
The judgment extensively referred to SC precedents Arup Bhuyan vs State of Assam (2011) 3 SCC 377 ,State of Kerala vs Raneef (2011) 1 SCC 784, which held that mere passive membership in a banned organization does not imply participation in terrorist activity.
The judgment also referred to the SC order in State of Maharashtra vs Konnath Muralidharan(2019), which approved the grant of bail to an alleged member of Maoist organization on the observation that no presumption of participation in terrorist activity flows from mere membership.”…the word activity appearing in the second limb of Sections 38 and 39 is to be understood as only those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist actvities”, the Court said.
To grant bail, the judge noted that the accused did neither have any other criminal antecedents, nor have any influential background and are students and young men with a possibility of reforming themselves. The court said:
“On evaluating the materials placed on record for the limited purpose of the disposal of bail applications, it appears to me that even though the prosecution was able to establish the first postulate of sections 38 and 39 that the accused had associated with and supported CPI(Maoist) organization, it is doubtful whether the prosecution has made out a prima facie case regarding second postulate that the affiliation and support rendered by the accused to the banned organization were done with intent to encourage, further, promote or facilitate the commission of terrorist activities.”
While granting bail by imposing some conditions, the judge further observed:
“Here the petitioners are budding youngsters. At the time of arrest, the first accused was just 19 years old. The second accused was 23 years of age. The first accused was a student of law. The second accused was a student of journalism. It appears that they used to be pro-active on each and every contentious social and political issues. Such persons are more prone to extremist ideologies and probably that may be the reason for the petitioners to come in contact with banned organizations. Therefore to some extent the court has to be lenient to them on the question of granting bail but with a clear message that the chance given for reformation shall not be mistook as an opportunity to fasten their bond with banned terrorist organization and to be part of it. One cannot have recourse to violent methods to overawe democratically elected government or legally formed Governmental Machinery, even though people are being tempted to have recourse to such things. Let us hope that the parents of the petitioners would play a constructive role in the betterment of the mental and psychological qualities of the petitioners.”
Referring to the Bombay high court judgment in Jyoti and others vs State of Maharashtra (2012), the court said that a number of persons are influenced and get attracted towards the Maoist philosophy because of the oppression of the weaker section, which they might have experienced in the social set up.
“As observed by the Hon’ble Bombay High Court a number of persons are influenced, and get attracted towards the Maoist philosophy because of the oppression of the weaker section which they might have experienced in the social set up. It is impossible to hold that all such persons are to be treated as members of a terrorist organization or that there they are liable to be punished for having some faith in such philosophy or having some sympathy for those who propagate such philosophy one. The strategy to fight against terrorism is to dissuade disaffected groups from embracing terrorism.”
The judge also referred to the judgment of the Kerala High Court in Shyam Balakrishnan vs. State of Kerala, which held that, being a Maoist is not a crime and that the police cannot detain someone merely because he is a Maoist unless his activities are unlawful. The court said that since no specific violent at overt acts are attributed against the accused, at this stage, it is not possible to prove any nexus between the accused and the terrorist activities of the organization.
Regarding the Kashmir Pamphlets, the Judge observed thus:
“It is to be taken note that these banners were prepared in the aftermath of abrogation of Article 370 and Article 35A of the Indian constitution by the Indian Parliament any evaluation diverted from the context will lead to bad conclusions. Right to protest is a constitutionally guaranteed right. It is well settled that the expression ‘government established by law’ has to be distinguished from persons for the time being engaged in carrying on the administration. A protest against the policies and decisions of the government, even if it is for a wrong cause, cannot be termed as sedition or an intentional act to support cession or secession. A contextual evaluation of the objectionable writings referred above does not prime office approve any attempt to create any hatred or contempt to government of India nor does it excite any disaffection.”