2021 (1) TMI 1176 - HC - Indian Laws

Court Upholds Bail Rejection in Terrorism Case, Emphasizes Peaceful Protests

The court affirmed the rejection of bail for the appellant in a case involving seditious and terrorist activities. The court found prima facie evidence ... Seeking grant of bail - conspiracy to create enmity between different groups of people on grounds of religion, race, place of birth, residence, language and did acts prejudicial to maintenance of harmony - sections 120B, 124A, 153B of the Indian Penal Code (IPC) and sections 18 and 39 of the Unlawful Activities (Prevention) Act, 1967 - HELD THAT:- The Court is unable to hold that the violent protests throughout the State did not and/or could not have had any terrorizing effect on the harmony of the innocent public at large, rather, the Court is of the considered opinion that on being provoked by the appellant, as the violent protests by burning of tyres had caused rail, highway and internal road blockade, the same is sufficient to give rise to a critical law and order situation that as a whole had threatened the security of the State. The acts of violent protests were aimed to strike terror in all sections of people in India irrespective of caste creed and religion. Moreover, by burning inflammable substance, the supplies essential for life of community in the Country was disrupted. 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 goods to the public in the State, setting fire to public offices and vehicles in the garb of public protest certainly cannot be termed as peaceful democratic protests in law. In that view of the constitutional provisions, the Court is of the considered view that in the backdrop of facts and circumstances that emerged from the documents on record, it cannot conclusively be said at the present stage of trial of the case that the appellant has been unreasonably deprived of the right of Article 21 of the Constitution of India. 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. The Court does not find any infirmity in the finding returned by the learned Special Judge (NIA) that there are reasonable grounds for believing that the accusation of commission of offences punishable under Chapter IV and VI of UA (P) Act against the appellant is prima face true. Considering the express bar imposed by section 43D (5) of the UA (P) Act, the appellant cannot be released on bail - Appeal dismissed. Issues Involved:1. Legality of the rejection of bail under section 21(4) of the National Investigating Agency Act, 2008.2. Examination of evidence and materials collected against the appellant.3. Interpretation and application of section 43D(5) of the Unlawful Activities (Prevention) Act, 1967.4. Examination of the appellant's alleged involvement in seditious and terrorist activities.5. Consideration of constitutional rights including freedom of speech and expression under Article 19(1)(g) of the Constitution of India.Detailed Analysis:1. Legality of the Rejection of Bail:The appeal challenges the order dated 13.07.2020 by the Special Judge (NIA), Assam, Guwahati, rejecting the appellant's bail application in Misc. Case No. 18/2020. The appellant is accused in Spl. NIA Case No. 2/2020 arising from NIA Case No. RC-13/2019/NIA-GUW. The court examined the materials and submissions from both sides, including extensive documents and written arguments.2. Examination of Evidence and Materials:The charge-sheet reveals that an FIR was registered under sections 120B, 124A, 153B IPC and sections 18 and 39 of the UA (P) Act. The investigation indicated the appellant's involvement in sending KMSS members for training in CPI (Maoist) camps, where they were trained in handling arms and explosives. Witness statements, video footages, and intercepted phone calls were used to support the allegations of conspiracy and seditious activities under the guise of protests. The charge-sheet also detailed various disruptive activities linked to the appellant, including damage to public property and causing economic blockades.3. Interpretation and Application of Section 43D(5) of the UA (P) Act:The court referred to the Supreme Court's guidance in Zahoor Ahmad Shah Watali's case, which outlines the approach for deciding bail applications under Chapter IV and VI of the UA (P) Act. The court found that the materials collected during the investigation, including statements from protected witnesses and intercepted communications, established a prima facie case against the appellant. The court emphasized that the dominant feature of the conspiracy was to disrupt the state's economy and incite violent protests, meeting the criteria under section 15(1)(a)(iii) of the UA (P) Act.4. Examination of the Appellant's Alleged Involvement:The prosecution's evidence indicated that the appellant had a significant role in orchestrating violent protests and economic blockades. Statements from witnesses and intercepted calls showed the appellant's involvement in planning and executing disruptive activities, including blocking highways and railways, and inciting violence against police and security personnel. The court noted that the appellant's actions were aimed at causing widespread disharmony and dissatisfaction towards the government, which are prejudicial to national integration.5. Consideration of Constitutional Rights:The appellant argued that his speeches and actions fell within the freedom of speech and expression guaranteed under Article 19(1)(g) of the Constitution. However, the court found that the appellant's activities went beyond peaceful protests and involved incitement to violence and disruption of essential services. The court held that the appellant's actions constituted a 'terrorist act' under section 15 of the UA (P) Act and did not fall within the protection of constitutional rights.Conclusion:The court concluded that the materials on record prima facie disclosed the appellant's culpability and involvement in the alleged offences. The court affirmed the Special Judge's order rejecting the bail application, citing sufficient grounds to believe that the accusations under Chapter IV and VI of the UA (P) Act were prima facie true. The appeal was dismissed, and the court emphasized that the observations made in the judgment were tentative and would not influence the trial. The court also highlighted the fundamental duty of citizens to protest peacefully and avoid violence, as enshrined in Article 51-A of the Constitution.