THWAHA FASAL versus UNION OF INDIA

20. Therefore, while deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation 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 THWAHA FASAL v. UNION OF INDIA [ABHAY S. OKA, J.] 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 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, which reads thus:- “[(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.]”

22. The order of sanction dated 18th April 2020 is a part of the charge sheet which is placed on record of these appeals. 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, as of today, 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, as of today, 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. 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 knowingly and intentionally attended various conspiracy meetings along with other underground part-time and professional members of CPI (Maoist). They had also attended various programmes organized by the frontal organisations of the proscribed terrorist organisation, for furthering the objectives of CPI (Maoist). 18.3 That, the accused A-1, A-2 and A-3 had, knowingly and intentionally conducted meeting and conspired in front of Medicare Laboratory, Kottayithazham, Kozhikode City, at around 06:45 PM on 01.11.2019 for furthering the activities of the proscribed terrorist organisation CPI (Maoist). 18.4 That, the accused A-1 had knowingly possessed documents supporting and published by CPI (Maoist) with the intention of supporting the proscribed terrorist organisation and propagating its violent extremist ideology. THWAHA FASAL v. UNION OF INDIA [ABHAY S. OKA, J.] 18.5 That, the accused A-2 had knowingly possessed documents supporting and published by CPI (Maoist) with the intention of supporting the proscribed terrorist organisation and propagating its violent extremist ideology. 18.6 That, the accused A-3, on seeing the Police party, had fled from the scene and managed to escape owing to his membership in the proscribed terrorist organisation CPI (Maoist). He is still absconding. 18.7 That, A-1 had knowingly and with the intention of aiding CPI (Maoist) possessed on his digital devices, materials supporting the proscribed terrorist organisation and its violent extremist ideology, for the purpose of spreading such ideology. 18.8 That, the materials found during the house search of A-2 such as notices, pamphlets, books, hand written notes, banners besides digital devices and publications were knowingly and intentionally possessed by A-2 for supporting the proscribed terrorist organisation CPI (Maoist). 18.9 That, in pursuance of the conspiracy to further the activities of CPI (Maoist), during the house search of A-2, he had, intentionally and knowingly, raised slogans, supporting the ideology of the proscribed terrorist organisation. 18.10 That, in furtherance of the conspiracies with co-accused and others, A-2 had knowingly and intentionally prepared cloth banners supporting secession f Kashmir from the Indian Union, for displaying at public places on behalf of CPI (Maoist) and thus committed unlawful activity as defined under the Unlawful Activities (Prevention) Act. 18.11 That A-1, knowingly and intentionally participated 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 punishable under Section 120B of the Indian Penal Code besides sections 38 and 39 of the Unlawful Activities (Prevention) Act, 1967. 18.17 Therefore, Thwaha Fasal @ Thaha @ Fasal @ Kishan (A-2) committed offences punishable under section 120B of the Indian Penal Code besides sections 13, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967.”

25. We have examined the material forming part of charge sheet. The material 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 learned 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. The said documents are under: 1. A notice in Malayalam titled Professor Madhava Gadgil Committee report nadappilakuka (Implement Professor Madhav Gadgil Report). 2. A notice in Malayalam tiled “Maoist Veetekkethire Janangal Rangathiranguka” (people should rise against Maoist Hunt) by Jogi, Spokesperson, CPI (Maoist), Paschima Ghatta Prathyka Meghala Committee” (Western Ghats Special Zonal Committee). THWAHA FASAL v. UNION OF INDIA [ABHAY S. OKA, J.] 3. A notice in Malayalam titled “Puthiya Munnettangalkkayi Thayyaredukkuka, (Prepare for New Advancements) October 28, 29, 30 Wayanad Collectorattil Rappakal Maha Dharna” (Day and Night Maha Dharna at Wayanad Collectorate). 4. A hand written paper with scribble “Malabar Motham 17” and ending with word “student”. 5. A handwritten paper with writings “Reporting -2” which ends as “Porayama Undakunnathu Swabhavikam” having four pages serial numbered from 1 to 4. 6. A spiral bound note pad of “SPIROPAD No. 4150 Janvi” with some writings in code language. 7. A letter pad having 06 pages and light blue colour cover page with writings “Vimarshana Swathatryam Thiricchu Pidikkuka” (Regain Freedom to Criticize) “Swathatra Lokam 2017 Deshiya Seminar.” 8. A monthly Magazine “Maruvakk Rastriya Samskarika Masika” of October 2019 Volume – 4, Edition – 10 having 50 pages. 9. A pocket diary having 09 pages. From search of his house, a mobile phone was seized.

26. Two items were recovered from red file possessed by the accused no.2 when he was apprehended. Following two items were recovered from the red plastic file of the second accused : “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). 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. A book with outer cover writings “TRIVENI Special” and writings inside. 8. A book with outer cover writing “CLASSMATE”, and having writings inside. 9. One page ruled paper having writings “Jammu Kashmirinte Swathanthrya Porattathe Pinthunakkuka” (Support the freedom struggle of Jammu Kashmir). 10. One page paper having writings “Pattaya Preshnam Collecorateil Ottayal Porattam (Land document issue, one personal strike at Collectorate). 11. A printed pamphlet with title “Vivadamaya Maradu Flat Samuchayangal Polichuneekuka” (Demolish the controversial flats at Maradu). 12. Printed Notice having printing starts with “sakhakkalakk” (to comrades) and ends with “area committee” and A4 size notices with writings “Jammu Kashmirinmelulla Adhnivesham Avasanipikuka” (stop the control of Jammu and Kashmir) and ends with “Paschima Ghatta Prathyeka THWAHA FASAL v. UNION OF INDIA [ABHAY S. OKA, J.] Mekhala Committee” (Western Ghats Special Zonal Committee (dated 2018 Aug 6-15 Nos., found kept inside a folded newspaper of Mathrubhumi daily dated 2019-Oct-4. 13. Two red colour Banners 180 cm x 87 cms with printing in Yellow colour “Jammu Kashmirinte Swanthanthra Poratathe Pinthunakkuka, Kashmiril Adhinivesha Vazhcha Nadathunna Indian Bharana Koodathe Cherukkuka, Bhrahmanya Hindutwa Fascist Bharana Varganthinethire Kalapam Cheyuka: CPI (Maoist)” (Support the freedom struggle of Jammu Kashmir, oppose the control of Indian Government at Jammu Kashmir, do struggle against Hindu Brahmin Fascist Government). 14. One laptop with charger, 15. Mobile phone with SIM, 16. Two additional SIM cards, 17. Three memory cards, 18. Two Pen Drives.”

28. 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.

29. 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.

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 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. As stated earlier, sub-section (5) of Section 43D is not applicable to the offence under Section 13.

34. Now the question is whether on the basis of the materials forming part of the charge sheet, there are reasonable grounds for believing that accusation of commission of offences under Sections 38 and 39 against the accused nos.1 and 2 is true. As held earlier, 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 THWAHA FASAL v. UNION OF INDIA [ABHAY S. OKA, J.] 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.

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 phones when they were apprehended on 30th 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 learned 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 (supra), 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.

37. 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. There was also a condition imposed on the accused 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.

38. As held in the case of K.A. Najeeb (supra), 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.

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 THWAHA FASAL v. UNION OF INDIA [ABHAY S. OKA, J.] 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 true.

40. In view of the findings which we have recorded above, the appeal preferred by the accused no.2 is allowed. The impugned Judgment and Order of the High Court to the extent to which it sets aside the order granting bail to him is quashed and set aside and the Order dated 9th September 2020 of the Special Court For the Trial of NIA Cases at Ernakulam in Crl. Misc. Petitions Nos.55-56/20 in SC No.1/2020/NIA granting bail to him is hereby restored. The accused no.2 shall be produced before the Special Court within a maximum period of one week from today to enable him to complete the bail formalities by furnishing the fresh bonds. We also make it clear that all the conditions imposed by the Special Court are restored.

41. The appeal preferred by Union of India is dismissed and the order granting bail to the accused no.1 is confirmed.

42. We clarify that the observations and findings recorded in this Judgment are only for the limited purposes of considering the applications for bail made by the accused nos. 1 and 2. The Special Court shall not be influenced by the said observations and findings while applying its mind to the question of framing charge as the considerations for framing charge are different. The Special Court will not be influenced by the observations made in this Judgment during the trial of the case. Devika Gujral Appeals disposed of.