Kerala High Court cancelled that bail of one of the two students who were charged under UAPA for possessing material belonging to Communist Party of India (Maoist). The Division bench of Justices A Hariprasad and K Haripal held that the Special Court which had granted bail to both students had watered down the seriousness of the material seized from the respondents and held that when individual rights are pitted against national interest, the latter shall prevail.
The Special Court, Kochi, while granting bail had held that there is possibility of reformation and hence the court was granting bail with a clear message that the chance given for reformation shall not be mistaken as an opportunity to fasten their bond with a banned terrorist organisation and to be part of it.
Background
On September 9, 2020, a special NIA court in Kochi granted bail to Allan Shuaib (20) and Thwaha Fasal (24) who were detained since November 2019, under Unlawful Activities (prevention) Act (UAPA) for allegedly being members of Communist Party of India (Maoist) [CPI(M)].
They were arrested on the grounds that they were in possession of documents supporting CPIM, attended meetings of CPIM, prepared cloth banners supporting secession of Kashmir from India. The two boys were apprehended by the police from a roadside, on November 1, 2019 as they found them to be suspicious and they found some material in their bags on basis of which they were charged under the stringent sections of UAPA. These materials included some documents, some books, a notepad with “code language” as well as two books titled “Caste Issues in India” and “Organizational democracy – disagreement with Lenin”.
The police even searched each of their houses and from Shuaib’s house recovered portraits of Che Guevara, poster images reading “Ban UAPA”, “Kurdistan Solidarity network Kerala”, “Kashmir Terrorism”, among others. From the house of Fasal, they retrieved images of CPIM flag, photo of Maoist leader Roopesh, files related to CPIM Central Committee Program, Image of hanging prime Minister Modi and so on.
Shuaib and Fasal had both sought bail from Sessions Court, Kozhikode which was rejected and in appeal, High Court as well dismissed the same, taking prima facie view that sufficient materials exists to continue investigation under UAPA.
The observations of Special court
The court observed that the object of detention pending criminal proceedings is not punishment, and that the law favours allowance of bail, which is the rule and refusal of it is an exception. The court observed that while it has to act in accordance with section 43D of UAPA while granting bail it also has “equal responsibility to see that human rights are not violated in the process of combating terrorism”.
The court examined all the material put before it in the final report and observed that all the literature was relating to burning social and political issues and “nothing is there to further or to encourage terrorist activity or facilitate its commission”.
Considering the second ground that the petitioners had participated in protest marches to extend solidarity to Kurds, to protest against police atrocities, against demonetisation, the court observed, “these issues are debated and discussed in social and political sphere and all protests were conducted peacefully”.
The court observed that there are many missing links in establishing that the accused were members of CPIM and also pointed out that the charges under section 20 of UAPA was dropped in the final report as the prosecution does not have a case that the accused were even members of CPIM. The court stated that there is no allegation of violence, neither possession of internal documents of CPIM, but merely a leaning towards Maoism.
The High Court proceedings
The Assistant Solicitor General contended that the Special Judge lost sight of the purport of the Act and showed over-enthusiasm in granting bail to the respondents and proceeded on wrong assumptions. The ASG further argued, “The (special) court has considered evidence as if in a trial; such detailed analysis was not warranted, the documents relied on by the prosecution should have been taken as true and a deeper enquiry is not expected for deciding the application for bail.”
The court observed that if there are materials to infer that the accused have done something to promote or enthuse the activities of a terrorist organisation or done anything supporting its activities with the intention to further its activities, offences under section 38 (Offence relating to membership of a terrorist organisation) and 39 (Offence relating to support given to a terrorist organisation) of UAPA are attracted. The court held that whenever offences under these sections are alleged and on perusal of the case diary or the final report there are reasonable grounds that the accusations are true, section 43-D(5) restrains the court from granting bail.
The court held that the special court had ventured to make a thorough, threadbare analysis into each and every document relied on by the prosecution, as if in a trial and the court found substance in the ASG’s contention that the Special Court Judge had overstepped while deciding the bail. The court disapproved the approach of the Special Court which held that bail is rule, and jail is an exception, since this principle does not apply while considering bail under special enactments such as UAPA. The court held that section 43D(5) of UAPA works as a statutory injunction on the court in granting bail; if there are prima facie circumstances to believe that the allegations are true, bail cannot be granted as a rule. The court finally stated that the principle, bail is the rule and jail the exception, has no application in such a case, especially when the offences under Chapters IV and VI of the Act are alleged against the accused.
The court concurred with the ASG’s submissions that the special judge failed to notice the cumulative effect of the documents and materials seized from the possession of the respondents.
The court considered the respondents’ contention that the material was carried by them out of their curiosity to know about the philosophy of the CPI(Maoist), that it might be the affinity of the youth in the tender age to know novel ideologies. The court held that the accused aged 19, a law student, and other accused aged 23, a journalism student, even though young and such proposition is possible, the court cannot ignore “the fact that the respondents had carried only such type of literature or writings which were published by the CPI(Maoist) which is admittedly a proscribed, underworld organisation.” The court held thus,
“The respondents had carried numerous writings and literature published by the said organisation or by those who have strong allegiance to the outfit. That means, the contention that the respondents had carried such materials out of their youthful inquisitiveness and quest for understanding new ideologies and curiosity does not carry any weight. If they, as youngsters were interested in understanding and assimilating new and novel ideologies, a bunch of materials published by a particular outfit alone would not have been found in their possession and power”
The court perused the material seized from the respondents and held that some of those materials are not innocent and innocuous which could be ignored in a light-hearted manner. The court stated that even if the prosecution could not prove that the respondents are members of an unlawful organisation but these are surreptitious activities for which evidence may not be readily available, in black and white as everything is done under the carpet, behind the curtain, without leaving any footprint.
The court also pointed out one instance where 15 copies of the literature were found in the possession of the second accused and one can only infer that the same were being carried for the purpose of circulation. The court also relied upon testimonies of witnesses to suggest that prima facie that the respondents were protagonists of such an ideology. The court also pointed out that documents carried by the respondents depict Jammu & Kashmir as a neighbouring country hence depicting a secessionist ideology.
The court was convinced that the Special court judge oversimplified matters and watered down the seriousness of documents seized from the respondents while granting bail. The court held thus, “We have no doubt that rights and personal liberty are sacrosanct. Courts are bound to protect it. At the same time, individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail.”
The court then considered the case of first accused versus the second accused and held that materials seized from first accused were less serious than those seized from the second accused. The court also took into consideration the fact that the first accused, Shuaib, was only 20 years old when he was arrested and that he has some psychiatric issues. The court thus cancelled the bail granted to the second accused, Fasal, while sustaining the bail granted to Shuaib, as per terms decided by the Special Court Judge.
The court also directed the Special Court to complete the trial as expeditiously as possible within one year.
The complete judgment may be read here.
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