TMI Blog2021 (1) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. By use of violence the appellant led mob had brushed aside the noble concept of non-violent protest, which is popularly known as satyagraha and that such conduct of paralyzing the Govt. machinery, causing economic blockade, causing enmity between groups, disruption of public peace an widespread disharmony and dissatisfaction towards the Govt., are acts which are prejudicial for national integration and such acts squarely falls within the definition of terrorist act as defined in section 15 of the UA (P) Act. Having regard to the requirement of section 43D (5) of the UA (P) Act, the Court is unable to record its satisfaction that the materials brought on record, in all probability, may not lead to conviction. The materials on record prima facie disclose culpability of the appellant and his involvement in the commission of alleged offences as morefully mentioned in the charge-sheet. It may be mentioned that the Court is conscious of the fact that the duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities - The act of blocking of the public road, disrupting free flow/movement of essential good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (NIA), Assam, Guwahati (hereinafter referred to as the Special Judge for brevity) in Misc. Case No. 18/2020 arising out of Spl. NIA Case No. 2/2020, thereby rejecting the prayer for grant of bail. 3. The learned counsel for the appellant has filed 3 (three) bound paper-books containing 1278 pages of materials purportedly supplied to the appellant along with the charge-sheet. Moreover, the learned counsel for the appellant has also filed a written synopsis of argument consisting of 43 pages, supported by 3 (three) volumes of convenience compilation No. I and II consisting of 957 pages as well as convenience compilation-III consisting of 122 pages. The respondent's side has filed their notes of submission consisting of 6 pages, against which the appellant's side has filed written notes of submissions in rejoinder consisting of 43 pages. Apart from hearing oral argument, the Court has also perused the memo of appeal consisting of 144 pages and affidavit-in-opposition filed by the respondent consisting of 123 pages. It is mentioned at the outset that although the Court has considered all the materials in its entirety, but in this order, the Court has recorded only the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substances to disrupt supplies essential for life of community in the Country by paralyzing the Govt. machinery, causing economic blockade, causing enmity between groups, disruption of public peace and widespread disharmony and dissatisfaction towards the Govt., assertions prejudicial for national integration and promoting enmity between different groups on grounds of religion, race, place of birth, residence and language. The charge-sheet also contains a description of disruptive activities involving the appellant, amongst others, which were registered as (i) Chabua P.S. case no. 290/19 dated 10.12.2019 regarding damage to CRPF vehicle, assault and grievous injury to the driver of the vehicle on Govt. duty; (ii) Jorhat PS case no. 3498/19 dated 12.12.2019 regarding criminal conspiracy and unlawful assembly resulting in riotous type situation at various places in Jorhat. Violation of section 144 Cr.P.C. obstruction of public ways including National Highway, State Highway and internal roads of Jorhat Town. Causing damage to public utilities by burning large number of tyres; (iii) Pulibar PS case no. 604/19 dated 12.12.2019 regarding disturbing harmony and promoting enmity between g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in section 15(1)(a) (iii) of the UA (P) Act. Reference has also been made to several photo and video files of violent crowd shouting slogans, blocking traffic by burning of tyres, obstructing policemen on duty, confrontation with police and security personnel. It also contains videos and photographs of such disruptive activities, videos of speeches which the prosecution has termed as provocative, thereby inciting people to stop transportation of economic and natural resources. In para-18.16 of the charge-sheet, specific allegations are made in respect of the role of the appellant before us. SUBMISSIONS ON BEHALF OF THE APPELLANT: 7. The learned senior counsel for the appellant has submitted that in the FIR, it has been alleged that the KMSS has merged with CPI (Maoist) and that the appellant has taken over the responsibility of CPI (Maoist) from one person named therein. However, the charge-sheet was in a different direction. It is submitted that the Chandmari PS case was registered on 13.12.2019 and the NIA case was registered on 14.12.2019 and that the hastily lodged case was sufficient for the Court to draw an inference of mala fide. It is submitted that while rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any training and that those statements do not throw any light on the nature of training imparted in the camps, and that it does not establish that any KMSS cadre was trained in any violent activity. It is submitted that other organizations like AASU and NESO had called bundh, strikes and blockade, and therefore, the appellant ought not to have been charged on account of causing economic blockade. It is also submitted that the transcriptions of call records reveal that the appellant was only a passive listener in most of the conversations. It has been submitted that although there was rail blockade, there is evidence to the effect that the railway administration had themselves suspended the rail traffic. It is submitted that rail and traffic blockade was carried out in the Country in all known agitations and protest activities and, as such, the dominant purpose of agitation was to oppose Citizenship Amendment Act (hereinafter referred to as 'CAA' for short) and not to disrupt supplies or services essential for life of the community in India. 9. It is submitted that even if the entire allegations against the appellant are presumed to be true, yet as there is no evidence r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rialize the intent, a person used bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons of noxious gasses or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature. vi. In this connection while explaining the meaning of by any other means of whatsoever nature , the ejusdem generis principle of interpretation of statutes was also relied upon and reference was made to the case of (a) Tillmans And Co. Vs. S.S. Khutsford Ltd., (1908) 2 KB 385, (b) Attorney General Vs. Brown, (1920) 1 KB 773, (c) Director of Public Prosecution Vs. Jordan, (1976) 3 All ER 775, (d) Siddeshwari Cotton Mills Vs. Union of India, (1989) 2 SCC 458. vii. (a) Shreya Singhal Vs. Union of India, (2015) 5 SCC 1 (para 9 to 13), (b) Rangarajan Vs. P. Jagjeevan Ram, (1989) 2 SCC 574, (c) Kedarnath Singh Vs. State of Bihar, AIR 1962 SC 955 was relied upon to project that the speeches made by the appellant was well within fundamental right to free speech and expression as enshrined under Article 19(1)(g) of the Constitution of India. viii. (a) Kashmira Singh Vs. State of M.P., AIR 1952 SC 159 (para-10); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnel and incidents of arson were mentioned in the charge-sheet, which were morefully available in 64 FIRs. lodged throughout the State. It is further submitted that there was no attempt to demonstrate how the impugned order under appeal was faulty. 13. It is also submitted that at this stage this Court is exercising appellate jurisdiction in respect of the impugned order by which the learned Special Judge had refused to grant bail to the appellant, as such, it may not be appropriate for this Court to examine whether the alleged incidents had taken place before or after the CPI (Maoist) was banned on 22.06.2009, which would be a matter to be decided in trial. Accordingly, it is submitted that once section 43D (5) of the UA (P) Act is complied with and the learned Special Judge is satisfied that there were sufficient grounds to believe that a prima facie case is made out against the appellant, no bail can be granted to the appellant as there was no infirmity in the order impugned herein. REASONING: 14. From a perusal of the charge-sheet, the offences alleged against the appellant are under sections 120B, 124A, 153B IPC and sections 18 and 39 of the UA (P) Act. 15. The mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.18 of the charge-sheet, the role of the appellant (referred to as A-1 in the charge-sheet) has been enumerated as under:- i. A-1 has association with proscribed organization CPI (Maoist), and had sent cadres of KMSS to train in Maoist camps. Accused A-1 has an ideology of the spectrum of the CPI (Maoist) ideology. ii. A-1 has conspired, advocate, abetted, advised, the commission of terrorist act (as defined in sec. 15(1)(a)(iii) of UA (P) Act). iii. A-1 by giving provoking speeches promoted enmity between different classes of people on grounds of religion, race, place of birth, residence, language which is pre judicial to maintenance of harmony. iv. A-1 made assertions prejudicial to harmony to the national integration. v. A-1 by his speeches caused disruption of public peace and causing widespread disharmony and disaffection towards the Government established by the law. vi. A-1 conspired and orchestrated the widespread blockade in the state of Assam, thereby paralyzing the government machinery, causing economic blockade. He provoked the mobs to cause damage to public property and grievous injury to officials on government duty. vii. The oral evidence, docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as having a plan to be at Chabua as they were planning a big programme at Chabua. Transcription of calls stated to be legally intercepted discloses detailed discussions by the appellant on plans to make protests when the Japanese Prime Minister and Prime Minister of the Country arrive at Guwahati and also for the purpose of getting media attention. The appellant's conversation also discloses that the appellant was calling upon those persons for a complete shut-down of the State. In this regard, the learned senior counsel for the appellant could not show before the Court that there was any instruction from the appellant to exempt movement of essential supplies. In this regard, it may be reiterated that the learned senior counsel for the appellant had submitted that the call for bundh and/or blockade was by AASU and NESO, but no attempt has been made to explain that when the appellant or his organization, namely, KMSS had not called the blockade, why the appellant was calling up his associates to ensure that everything is brought to a stand-still in the State. 20. The learned senior counsel for the appellant had attributed motives merely because the prosecuting agency had deem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted Maoist groups only to be told not to use such acquired skill. Similarly, no effort has been made to explain the peaceful and non-violent purpose for which the appellant had called upon the persons trained in use of firearms and explosives to use their acquired skills to make the people of Assam ready. 21. It was submitted by the learned senior counsel for the appellant that in the past, rail and Highway blockade was made by others. In this regard, the Court is of the considered opinion that merely because at any given point of time when road or rail blockade programme had been called, the concerned Govt. had not taken action similar to the present case in hand, cannot be a ground for the Court to drawn an inference that as the dominant purpose of protest being to voice dissent against CAA, no offence was made out although there was disruption to supplies and services by road and rail in various parts of the State. 22. In the further considered opinion of the Court, as we have ourselves relied upon the case of Zahoor Ahmad Shah Watali (supra), the Court is unable to find fault with the learned trial Court in placing reliance on the said cited case. 23. Moreover, having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et, clearly indicate that the appellant wanted to protest in such a manner which would disrupt all modes of rail and road transport and to paralyze Government machinery not only on other dates, but specifically on the date when the Japan's Prime Minister was slated to visit the State. It was submitted that although there was rail blockade, but there are evidence to the effect that the railway administration had themselves suspended the rail traffic, but the Court cannot find fault with the said action of the railways because by such action, they had secured the lives of a large number of rail user and saved the trains and other railway property from being damaged by the violent protestors, who had reportedly burnt down Chabua Railway Station. 25. In light of the herein before referred materials available on record, and having regard to the requirement of section 43D (5) of the UA (P) Act, the Court is unable to record its satisfaction that the materials brought on record, in all probability, may not lead to conviction. The materials on record prima facie disclose culpability of the appellant and his involvement in the commission of alleged offences as morefully mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived of the right of Article 21 of the Constitution of India. 27. In view of discussions above, the materials relied upon by the prosecution prima facie shows that cadre/members of KMSS were trained in the use of firearms and explosives and that the appellant had not only led the protests, but had provoked people to join him and that upon directions issued by the appellant, the supplies essential to life of the community of the Country was disrupted in the State. The appellant's call was instrumental in violent protests, and damage or destruction to vehicles of military and para-military forces, which were to be used for defence of the Country. Fire caused by burning of inflammable tyres is projected to have caused damage or destruction of public property. Therefore, the Court is of the considered opinion that the cases cited by the learned senior counsel for the appellant do not appear to help the appellant in any manner and, as such, this judgment is not burdened with discussions on the cited cases. CONCLUSION: 28. As a result of the discussions above, this appeal fails. No interference is called for in respect of the impugned order dated 13.07.2020, passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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