Read Judgment: Thwaha Fasal vs. Union of India 

Pankaj Bajpai

New Delhi, November 1, 2021: While granting bail to the youths accused of being involved in a terrorist organization, the Supreme Court has opined that mere association with a terrorist organization as a member or otherwise will not be sufficient to attract the offence u/s 38 of the Unlawful Activities (Prevention) Act, 1967, unless the association is with intention to further its activities. 

Depending upon the gravity of offence committed u/s 38 and/ or 39 of the 1967 Act and other relevant factors, the accused can be let off even on fine, added the Court. 

A Division Bench of Justice Ajay Rastogi and Justice Abhay S. Oka therefore observed that 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, and that the grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds.

The observation came in reference to the arrest of two youths from Kerala in November 2019, wherein the charge-sheet, filed by the NIA, accused the youths of harbouring and associating with the Communist Party of India (Maoist) which is a terrorist organization within the meaning of Section 2(m) of the 1967 Act. Later, both the accused were granted bail by the Trial court. However, the Kerala High Court cancelled Fasal’s bail without interfering with Shuhaib’s bail. 

After considering the accusations and pleadings, the Top Court found that there is no allegation against the accused of committing any terrorists act. 

The Top Court noted that the offence u/s Section 38(1) of the 1967 Act of associating or professing to be associated with the terrorist organization and the offence relating to supporting a terrorist organization u/s 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organization.

To that extent, the requirement of mens rea is involved, added the Court.

Observing that the offence has been alleged on the ground that two banners were found in the house of the accused which according to the prosecution invited public support to freedom movement of Jammu and Kashmir, the Division Bench of the Apex Court said that for consideration of grant of bail to a person accused of an offence u/s 13, stringent provisions of Section 43D(5) will not apply.

Speaking for the Bench, Justice Oka said that 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, added Justice Oka. 

As of today, sanction u/s 45(1) has not been accorded for prosecuting the accused for the offence punishable u/s 20 of the Act of 1967 and, therefore, as of today, the Special Court under NIA Act cannot take cognizance of the offence punishable u/s 20….Therefore, in absence of sanction and the fact that NIA did not even seek sanction for the offence punishable u/s 20, a prima facie case of the accused being involved in the said offence is not made out at this stage”, observed the Top Court. 

Justice Oka found that the Special Judge noted that the facebook account, e-mail accounts and call details of the accused did not contain any incriminating evidence, and neither the High Court had recorded that any incriminating material. 

Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organized by an organization 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 organization”, observed the Apex Court.

Hence, the judgment of the High Court to the extent to which it set aside the order granting bail to Fasal, was quashed and the order of the Special Court granting bail to him was restored.

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