JUDGEMENT

P.N.PRAKASH.J., This Criminal Appeal has been filed against the order dated

02.06.2022 passed by the learned Judge, Special Court under the N.I.A. Act, 2008, at Poonamallee, Chennai, dismissing the discharge petition in Crl.M.P.No.114 of 2022 in C.C.No.3 of 2021 filed by the Appellant (A3).

2. The facts of the case has been captured by this court from Para 2.1 to 2.6 in the order dated 22.04.2022 in Crl.A.No.157 of 2022 which is as under:-

“2.1 One Vivek @ Vivekanandan (A.1) has a Facebook account entitled “Thozhar Vivek”. On 15.08.2020, being our Independence Day, he posted a message in his Facebook account in Tamil, the free English translation of which reads as under:

“The change of regime that happened in

1947 is a sham because it has not got rid of feudalism, imperialism and exploitation of the poor and therefore, August 15th is a farce independence. In order to gain real independence, let us mobilise in the path of war shown by Naxalbari.”

2.2 Noticing this post, a case in D-1 Tallakulam P.S. Cr.No.1916 of

2020 was registered on 01.09.2020 for the offences under Section 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (for brevity “the UAP Act”) and Section 505(1)(b) IPC by the State police and Vivek (A.1) was arrested on 16.12.2020.

2.3 Based on the orders dated 12.03.2021 passed by the Central Government, the case in D-1 Tallakulam P.S. Cr.No.1916 of 2020 was transferred to the file of the National Investigation Agency (for brevity “the NIA”) and reregistered as RC-07/2021/NIA/DLI dated 14.03.2021.

2.4 The NIA took up the investigation of the case and arrested Suresh Rajan (A.2), the appellant herein, on 08.06.2021 and remanded him in judicial custody.

2.5 Meanwhile, bail was granted to Vivek (A.1) by the Special Court on 05.05.2021 on the ground that the charge sheet was not filed within 90 days of his arrest, viz., on or before 15.03.2021. The appeal preferred by the NIA thereagainst was dismissed by this Court on 28.06.2021.

2.6 The NIA completed the investigation and filed a final report on

11.06.2021 in C.C. No.3 of 2021 in the Special Court for the offences under Sections 120-B, 124-A, 201 and 505(1)(b) IPC and Sections 13(1)(b), 38 and 39 of the UAP Act against Vivek (A.1) and Suresh Rajan (A.2) and an advocate by name Mohan (A.3).”

3. Since Mohan (A3), the appellant herein, is a differently-abled person, he was not arrested by National Investigation Agency (NIA). The appellant filed a petition in Crl.M.P.No.114 of 2022 in C.C.No.3 of 2021 on the file of the Special Court under Section 227 of Cr.P.C. for discharging him from the prosecution which has been dismissed by the trial court on 02.06.2022, aggrieved by which, he has filed the present appeal under Section 21 of the NIA Act, 2008.

4. The NIA has filed their written objections dated 28.07.2022.

5. Heard Mr.R.Sankarasubbu, learned counsel for the appellant and Mr.R.Karthikeyan, learned Special Public Prosecutor for the respondent.

6. The learned counsel for the petitioner contended that mere uploading the impugned message by itself would not attract the provisions of The Unlawful Activities (Prevention) Act, 1967 nor sedition under Section 124-A of IPC without anything more. He further contended that under Section 15 of the UAP Act, “Terrorist Act” has been defined which speaks about the commission of physical violence and not “speech”. He further contended that Supreme Court in S.G.Vombatkere v. Union of India, 2022 LiveLaw (SC) 470 has kept in abeyance all pending trial, appeals and proceedings with respect to the charge framed under Section 124-A of IPC and therefore, the impugned order of the trial court rejecting the aforesaid plea is unsustainable. It is his contention that Section 124-A of IPC is in pari materia with sub-section (o) of Section 2 of UAP Act. 7. The learned counsel for the petitioner also contended that within 3 days after uploading the post, the appellant withdrew the same which shows his good intention.

8. Per contra, the learned