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SUPREME COURT OF INDIA
AJAY RASTOGI, ABHAY S. OKA, JJ.
Thwaha Fasal – Appellant
Versus
Union of India – Respondent
Criminal Appeal No. 1302 of 2021 (Arising out of SLP (Crl.) No. 2415 of 2021)
With
Union of India – Appellant
Versus
Allan Shuaib – Respondent
Criminal Appeal No. 1303 of 2021 (Arising out of SLP (Crl.) No. 5931 of 2021)
Decided On : 28-10-2021
(A) Unlawful Activities (Prevention) Act, 1967 – Sections 20, 38 and 39 – Indian Penal Code, 1860 – Section 120-B – Criminal Procedure Code, 1973 – Section 439 – National Investigation Agency Act, 2008 Section 21(4) – Bail – There is no allegation against accused nos.1 and 2 of committing any terrorists act – Offence punishable under Section 20 is attracted when accused is a member of a terrorist gang or a terrorist organisation which is involved in terrorist act – Section 20 is not attracted unless terrorist gang or terrorist organisation of which accused is a member is involved in terrorist act as defined by Section 15 – If accused is associated with a terrorist organisation, offence punishable under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organisation with intention to further its activities – Association must be with intention to further activities of a terrorist organisation – Mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract offence under Section 38 unless association is with intention to further its activities – Depending upon gravity of offence committed under Section 38 and/or 39 and other relevant factors, accused can be let off even on fine. (Paras 8, 10, 11, 13 and 14)
(B) Unlawful Activities (Prevention) Act, 1967 – Section 43-D read with Sections 20, 38 and 39 – Indian Penal Code, 1860 – Section 120-B – Criminal Procedure Code, 1973 – Section 439 – National Investigation Agency Act, 2008 – Section 21(4) – Bail – While deciding bail petition filed by accused against whom offences under Chapters IV and VI of 1967 Act have been alleged, Court has to consider whether there are reasonable grounds for believing that accusation against accused is prima facie true – If Court is satisfied after examining material on record that there are no reasonable grounds for believing that accusation against accused is prima facie true, then accused is entitled to bail – Scope of inquiry is to decide whether prima facie material is available against accused of commission of offences alleged under Chapters IV and VI – Grounds for believing that accusation against accused is prima facie true must be reasonable grounds – However, Court while examining issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial – Court is not supposed to examine merits and demerits of evidence – If a charge sheet is already filed, Court has to examine material forming a part of charge-sheet for deciding issue whether there are reasonable grounds for believing that accusation against such a person is prima facie true – While doing so, Court has to take material in charge-sheet as it is – For deciding issue of prima facie case contemplated by sub-section (5) of Section 43D, case against both accused only under Sections 38 and 39 is required to be considered – In view of absence of sanction and fact that NIA did not even seek sanction for offence punishable under Section 20, prima facie case of accused being involved in the offence is not made out at this stage – Taking charge-sheet as correct, at the highest, it can be said that material prima facie establishes association of accused with a terrorist organisation CPI (Maoist) and their support to the organisation – 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 – Association and support have to be with intention of furthering activities of a terrorist organisation – Apart from allegation that certain photographs showing that accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in charge-sheet to project active participation of accused nos.1 and 2 in activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering activities or terrorist acts of terrorist organisation – Offence punishable under Section 40 has not been alleged in this case – It is not the case of prosecution that any conditions were breached by any of accused after they were enlarged on bail – Stringent restrictions imposed by sub-section (5) of Section 43D, do not negate power of Constitutional Court to grant bail keeping in mind violation of Part III of Constitution – Bail granted to both accused persons. (Paras 20, 22, 32, 34, 35, 37, 38, 39 and 40)
Facts of the case:
Instant appeals take exception to the Judgment and Order passed by a Division Bench of Kerala High Court in the appeals preferred by the Union of India under sub-section (4) of Section 21 of the National Investigation Agency Act, 2008. The appeals before the High Court arose out of the Order dated 9th September 2020, passed by the learned Judge of the Special Court appointed to conduct the trial of National Investigation Agency cases at Ernakulam in Kerala. By the said Order, the learned Judge of Special Court For NIA Cases, granted bail to the accused no.1 Allen Shuaib and the accused no.2 Thwaha Fasal.
Findings of Court:
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 considerations for framing charge are different. The Special Court will not be influenced by the observations made in this Judgment during trial of the case.
Result : Appeal of accused allowed appeal of Union of India dismissed.
JUDGMENT :
ABHAY S. OKA, J.
Leave granted.
1. These two appeals take exception to the Judgment and Order passed by a Division Bench of Kerala High Court in the appeals preferred by the Union of India under sub-section (4) of Section 21 of the National Investigation Agency Act, 2008 (for short “the NIA Act”). The appeals before the High Court arose out of the Order dated 9th September 2020, passed by the learned Judge of the Special Court appointed to conduct the trial of National Investigation Agency cases at Ernakulam in Kerala. By the said Order, the learned Judge of the Special Court For NIA Cases, granted bail to the accused no.1 Allen Shuaib and the accused no.2 Thwaha Fasal.
2. A First Information Report was registered against the accused nos.1, 2 and 3 for the offences punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 (for short “the 1967 Act”). The Offence was registered by Pantheerankavu Police Station in Kerala. Later on, the investigation of 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 of India against the order of the Special Court was partly allowed. The High Court proceeded to set aside the order granting bail to the accused no. 2. However, the order of the Special Court granting bail to the accused no.1 was confirmed by the High Court. The appeal arising out of Special Leave Petition(Crl.) No. 2415 of 2021 has been preferred by the accused no. 2 and the appeal arising out of Special Leave Petition (Crl.) No. 5931 of 2021 has been preferred by the Union of India for challenging that part of the impugned Judgment and Order by which the order of the Special Court granting bail to the accused no.1 has been confirmed. The accused nos.1 and 2 were apprehended on 1st November 2019. The accused no.1 who was born on 27th August 1999 was 20 years old at that time and the accused no.2 who was born on 5th August 1995 was 24 years old at that time. As noted by the Special Court, the accused no.1 was a law student at that time and the accused no.2, while working and earning his livelihood, was pursuing his studies in Journalism through a Distant Education Programme.
4. On 1st November 2019, the complainant who is the Sub-Inspector of Police attached to Pantheerankavu Police Station in Kozhikode city in Kerala found that the accused nos.1 to 3 were standing in suspicious circumstances in front of Medicare Laboratory in Kozhikode city. After seeing the police vehicle, the accused no. 3 ran away. However, the accused nos.1 and 2 were apprehended. The accused no.1 was carrying a shoulder bag and the accused no.2 was carrying a red plastic file. Nine items were seized from the shoulder bag of the accused no.1. From the red plastic file of the accused no.2, two items were seized. The First Information Report was registered on the same day under Sections 20, 38 and 39 of
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