TMI Blog2021 (10) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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. The Court while examining the issue of prima facie case as required by Sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the case was transferred to National Investigation Agency (for short NIA ) established under the NIA Act. 3. The Accused No. 3 is absconding. On completion of investigation, a charge sheet was filed by NIA against the Accused Nos. 1 and 2. Offences punishable Under Sections 38 and 39 of the 1967 Act as well as Under Section 120-B of the Indian Penal Code (for short IPC ) were alleged against the Accused No. 1. The same offences were alleged against the Accused No. 2. In addition, an offence punishable under Section 13 of the 1967 Act was also alleged against the Accused No. 2. Before filing of charge sheets, bail applications moved by the Accused Nos. 1 and 2 were dismissed and the order of dismissal was confirmed by High Court in appeals preferred Under Sub-section (4) of Section 121 of the NIA Act. After investigation was transferred to NIA, the Accused No. 2 applied for bail which was dismissed by the learned Judge of the Special Court. After filing of charge sheet, fresh applications were filed by the Accused which were allowed by the learned Judge of the Special Court by the Order dated 9th September 2020. By the impugned Judgment and order, the appeal preferred by the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accused No. 2 for the offences punishable Under Sections 13, 38 and 39 of the 1967 Act was granted. As can be seen from the order dated 18th April 2020, NIA had recommended for grant of sanction under the aforesaid Sections. It is pointed out across the Bar by Shri S.V. Raju, the learned Additional Solicitor General of India (ASG) that the case is fixed for framing of charge. However, it was also pointed out across the Bar that a report from the Forensic Science Laboratory is not yet received. SUBMISSIONS OF THE LEARNED COUNSEL 5. Shri Jayanth Muthuraj, the learned Senior Counsel representing Accused No. 2 in support of the appeal preferred by the said Accused made detailed submissions which can be summarised as under: (a) Though FIR was registered against both the Accused for the offences punishable Under Sections 20, 38 and 39 of the 1967 Act, while filing the charge sheet, the offence punishable Under Section 20 has not been invoked. He pointed out that Section 20 is applicable to an Accused who is a member of a terrorist gang or a terrorist organisation which is involved in a terrorist act. He submitted that though there is an allegation made in the FIR that the Accused Nos. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Special Court has taken into consideration each and every material incorporated against the Accused in the charge sheet and has concluded that the charge sheet does not make out a prima facie case of the Accused having intention to encourage, further, promote or facilitate the commission of terrorist activities. He submitted that there are no reasons assigned by the High Court to disturb the said prima facie finding. He relied upon a decision of this Court in the case of People's Union for Civil Liberties and Anr. v. Union of India (2004) 9 SCC 580. He submitted that the challenge in the said case before this Court was to the constitutional validity of various provisions of the Prevention of Terrorism Act, 2002 (for short POTA ). He submitted that this Court accepted the argument of the learned Attorney General of India that Sections 20, 21 and 22 would not cover any activities which do not have an element of intention of furthering or encouraging terrorist activity or facilitating its commission. He submitted that it was held that the said three provisions do not exclude mens rea. He also relied upon another decision of this Court in the case of Arup Bhuyan v. State of Assa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed immediately. 6. Shri S.V. Raju, the learned Additional Solicitor General made the following submissions for opposing the appeal preferred by the Accused No. 2 and in support of the appeal preferred by the Union of India: (a) He submitted that Item No. 34 of Schedule 1 of the 1967 Act incorporates CPI (Maoist) in the list of terrorist organisations within the meaning of Clause (m) of Section 2 of the 1967 Act. He submitted that the said organisation is a terrorist organisation as distinguished from an unlawful association contemplated by Clause (p) of Section 3 of the 1967 Act. (b) He pointed out from the counter filed by NIA and in particular Clauses (i) to (xvi) of paragraph 30 that when the house of the Accused No. 2 was being searched, he shouted various slogans such as Inquilab Zindabad, Maoism Zindabad, Naxalbari Zindabad etc. He pointed out that two red colour handmade cloth banners of CPI (Maoist) were recovered from his residence calling upon people to support the struggle for independence of Kashmir. He submitted that material used for preparation of banners was also recovered. He submitted that the contents of the banners amount to inciting the rebellion and public d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not the 1967 Act. (g) He submitted that the High Court while confirming the order granting bail to the Accused No. 1 has completely disregarded Sub-section (5) of Section 43D of the 1967 Act. He submitted that the bail granted to the Accused No. 1 has been confirmed by the High Court by ignoring Sub-section 5 of Section 43D. (h) He submitted that the Special Court has completely ignored the law laid down in the case of Watali (supra) and as rightly found by the High Court, the Special Court has conducted a mini trial which is not permissible. (i) He submitted that the Accused Nos. 1 and 2 who are the active members of the terrorist organisation are trying to create disharmony with the object of overthrowing the democratically elected government. He submitted that though the personal liberty is sacrosanct, the individual rights should subserve the national interest. He submitted that the prima facie findings recorded by the High Court on consideration of the entire material against the Accused Nos. 1 and 2 disentitle both of them to grant of bail. 7. The learned Senior Counsel Shri R. Basant appearing for the Accused No. 1 opposed the submissions made by learned ASG in the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h intent to threaten or likely to threaten the unity, integrity, security [economic security] or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any Section of the people in India or in any foreign country,-- (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause-- (i) death of, or injuries to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or [(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or] (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or began to profess to be a member; and (b) that he has not taken part in the activities of the organisation at any time during its inclusion in the First Schedule as a terrorist organisation. (2) A person, who commits the offence relating to membership of a terrorist organisation Under Sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. 39. Offence relating to support given to a terrorist organisation.--(1) A person commits the offence relating to support given to a terrorist organisation,-- (a) who, with intention to further the activity of a terrorist organisation,-- (i) invites support for the terrorist organization; and (ii) the support is not or is not restricted to provide money or other property within the meaning of Section 40; or (b) who, with intention to further the activity of a terrorist organisation, arranges, manages or assists in arranging or managing a meeting which he knows is-- (i) to support the terrorist organization; or (ii) to further the activity of the terrorist organization; or (iii) to be addressed by a person who associates or professes to be associated with the terrorist organisation; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (1) of Section 38 will not be attracted. The aforesaid Clause (b) can be a defence of the Accused. However, while considering the prayer for grant of bail, we are not concerned with the defence of the Accused. 12. 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. As observed earlier, the activities must have some connection with terrorist act. Clauses (a), (b) and (c) are attracted only if actions/activities specified therein are done with intention to further the activities of a terrorist organisation. 13. 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 fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Hence, for consideration of grant of bail to a person Accused of an offence Under Section 13, stringent provisions of Sub-section (5) of Section 43D will not apply. 16. Now, we come to the provision in the 1967 Act regarding the grant of bail. Sub-section (5) of Section 43D is relevant which reads thus: (5) Notwithstanding anything contained in the Code, no person Accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such Accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made Under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (emphasis added) 17. The stringent conditions for grant of bail in Sub-section (5) of Section 43D wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person is prima facie true. By its very nature, the expression prima facie true would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the Accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such Accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true , as compared to the opinion of the Accused not guilty of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the Accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. (emphasis added) 19. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccusation against the Accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the Accused is prima facie true, then the Accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the Accused of commission of the offences alleged under Chapters IV and VI. The grounds for believing that the accusation against the Accused is prima facie true must be reasonable grounds. However, the Court while examining the issue of prima facie case as required by Sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is. 21. Under Sub-section (1) of Section 45 of the 1967 Act, the Court is not empowered to take cognizance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being involved in the said offence is not made out at this stage. As stated earlier, Sub-section (5) of Section 43D will not apply to Section 13, as Section 13 has been incorporated in Chapter III of the 1967 Act. 23. While we deal with the issue of grant of bail to the Accused Nos. 1 and 2, we will have also to keep in mind the law laid down by this Court in the case of K.A. Najeeb (supra) holding that 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. 24. Now we turn to the material against the Accused Nos. 1 and 2 in the charge sheet. In paragraph 18 of the charge sheet, the charges against Accused Nos. 1 and 2 have been set out. Paragraph 18.1 to 18.17 reads thus: 18.1 That, Accused A-1, A-2 and A-3 had, knowingly and intentionally, associated themselves and acted as members of Communist Party of India (Maoist) in short CPI (Maoist), proscribed as a terrorist organisation by the Government of India Under Section 35 of the Unlawful Activities (Prevention) Act, 1967 and included in the 1st Schedule to the Act. 18.2 That, Accused A-1, A-2 and A-3 know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articipated in the meetings of the proscribed terrorist organisation CPI (Maoist) with professional members including A-3 and had prepared notes that were maintained by A-1. 18.12 That, A-1 and A-3 knowingly and intentionally conspired and conduced secret meetings at the rented accommodation of A-1 in Kannur district, for furthering the objectives of the proscribed terrorist organisation CPI (Maoist). 18.13 That, the Accused A-1, had knowingly and intentionally propagated the Maoist ideology amongst his close friends with the intention of radicalizing and recruiting them in to the proscribed terrorist organisation CPI (Maoist). 18.14 That, the Accused had knowingly and intentionally conducted several conspiracy meetings (APTs) in Kozhikode and Kannur districts of Kerala for furthering the objectives of the proscribed terrorist organisation CPI (Maoist). 18.15 That, the Accused A-3 and other underground professional members of CPI (Maoist) had radicalised and recruited A-1 and A-2, besides others, into the proscribed terrorist organisation, with the intention of furthering the activities of CPI (Maoist). 18.16 Therefore, Allan Shuaib @ Mamu @ Mammu @ Vivek (A-1) committed offences p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndiayile Jathiprasnam Nammude Kazhchapadu-May Dinam 2017 (Caste issues in India, our views-May day 2017)-published by Central Committee of CPI (Maoist). A book in Malayalam language with heading Sankatana Janadhipathyam - Leninodulla Viyojanangal (Organisational democracy, disagreement with Lenin) of Rosa Luxemberg. 27. From the house of the Accused No. 2, the following 18 items were seized: 1. A Diary of 2018 2. A book with heading Indiayile jathiprasnam Nammude Kazhchapadu-May Dinam 2017 (Caste issues in India, our views-May day 2017)-published by Central Committee of CPI (Maoist). 3. Pamphlets with heading Sathruvinte Adavukalum Nammude Prathyakramana Adavukalum (Enemies tactics and our counter tactics)-18 sheets. 4. A book titled Hello Bastar, India Maoist Prasthanattinte Parayappadatta Katha (Hello Bastar, the Untold story of Indian Maoist Organisation) written by Rahul Panditha. 5. A book titled Mundur Ravunni-Thadavarayum Porattavum (Mundur Ravunni-Imprisonment and fight written by Madula Mani. 6. A book titled Indonesian Janankale Fasist Bharanadhikarikale Marichidan Vendi Onnikkuka Poraduka -(Peoples of Indonesia, Join together and Fight to knock out the Fascist Ruler). 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spaper cuttings relating to maoist incidents were found. A book was also seized relating to encounter with PLGA (Maoist) at Agali. 30. The Special Judge noted that the face book account, e-mail 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. 31. 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. 32. 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. 33. Thus, as far as the Accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 35. The act of raising funds for the terrorist organisation has been alleged in charge sheet against both the Accused. This is a separate offence Under Section 40 of the 1967 Act of raising funds for a terrorist organisation which again contains intention to further the activity of terrorist organisation as its necessary ingredient. The offence punishable Under Section 40 has not been alleged in this case. 36. The learned 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 ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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. 39. 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, we have examined the material against both the Accused in the context of Sub-section (5) of Section 43D. 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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