A Bench of the Supreme Court comprising of Justice Ajay Rastogi and Justice Abhay S. Oka has granted bail to Thwaha Fasal and has refused to interfere with the order granting bail to Allan Shuaib, both of whom were accused of being members Communist Party of India (Maoist), a terrorist organization declared so under the Unlawful Activities (Prevention) Act, 1967 (UAPA Act) and arrested in November, 2019.

Thwaha and Allan were arrested from Kozhikode in Kerala under suspicious circumstances, while the 3rd accused, who was never apprehended, ran away seeing the police vehicle. Various incriminating materials were recovered from bags carried by both of them and from a search conducted from both of their houses.

An FIR was registered against all the three accused for the offences under Sections 20, 38 and 39 of the UAPA Act. However, Charge Sheet was filed only under Sections 38 and 39 of the UAPA Act and Section 120B of the IPC against Allan and an additional charge under Sections 13 of the UAPA Act against Thwaha.

In April 2020, the Central Government had granted sanction under Section 45 of the UAPA Act to prosecute Allan for offences under Sections 38 and 39 and to prosecute Thwaha for offences under Sections 13, 38 and 39 of the UAPA Act.

Though the bail applications filed before filing of the Charge Sheet were dismissed by the Special Court, the applications of both the accused filed after the filing of the Charge Sheet were allowed by the orders impugned by the NIA before the Kerala High Court.

Both NIA, the prosecuting agency, and Thwaha were in appeal before the Supreme Court against the decision of the High Court upholding bail granted to Allan, and against the decision setting aside the bail granted to Thawaha, respectively.

Senior Advocate Jayanth Muthuraj appeared for Thwaha, Senior Advocate R. Basant appeared for Allan and the NIA was represented by Additional Solicitor General, S. V. Raju.

Arguments of Jayanth Muthuraj for Thwaha, challenging the order refusing bail to him:-

1. The stringent provision, Section 20 of the UAPA Act which entails a maximum punishment of life imprisonment was dropped from the Charge Sheet. Maximum punishment for the offence charged i.e. Sections 38 and 39 is only 10 years imprisonment.

2. Stringent restrictions for grant of bail are applicable for the persons accused of offences under Sections 38 and 39 of the UAPA Act only, and not Section 13.

3. Even assuming that the accused was found in possession of various materials relating to CPI (Maoist), Sections 38 and 39 are not attracted. Charge Sheet also does not disclose any material for invoking the said provisions.

4. No reason has been assigned by the High Court to disturb the prima facie finding recorded by the Special Court and the Charge Sheet does not make out a prima facie case of the accused having intention to encourage, further, promote or facilitate the commission of terrorist activities.

5. Statutory embargo imposed by sub-section (5) of Section 43D of the UAPA Act does not oust the jurisdiction of a Constitutional Court to grant bail on the ground of violation of rights conferred by Part III of the Constitution of India.

6. Stringent conditions were imposed by the Special Court while releasing Thwaha on bail, which was set aside by the High Court.

7. Considering the fact that charge is not yet framed and that a total number of 92 witnesses are to be examined, the trial is not likely to be completed in near future.

Arguments of R. Basant for Allan, opposing challenge to bail granted to him:-

1. Special Court cannot take cognisance of the offence under Section 20 without previous sanction of the Central Government.

2. Finding recorded by the High Court in the impugned Judgment that Allan was taking treatment for certain psychiatric issues is not disputed by the prosecution.

3. Court cannot interfere with the order granting bail unless the order suffers from non-application of mind or is not borne out from a prima facie view of the evidence on record.

Arguments of ASG S.V. Raju for the NIA, challenging bail granted to Allan and opposing the Appeal of Thwaha:-

1. CPI (Maoist) is declared as a terrorist organizations, as defined under Section 2(m) of the UAPA Act.

2. The contents of the banners recovered from the accused amount to inciting rebellion and public disorder.

3. A notebook containing minutes of a meeting of CPI (Maoist) and digital device containing political and military strategy of the CPI (Maoist) were recovered from the accused.

4. The very fact that the minutes of the secret meetings were found in the custody of Thwaha shows that he is actively involved in the activities of the terrorist organisation.

5. Though Section 20 may not have been applied, the Special Court can disagree with the police report and issue process for an offence which is not made out in the Charge Sheet. Even a further investigation can be ordered by the Court. The prosecution can subsequently obtain the sanction to prosecute the accused for the offence punishable under Section 20 of the UAPA Act.

6. The bail granted to Allan has been confirmed by the High Court by ignoring sub-section 5 of Section 43D of the UAPA Act.

7. The Special Court has conducted a mini-trial for granting bail, which is not permissible.

8. Though personal liberty is sacrosanct, individual rights should subserve the national interest.

The findings and conclusions of the Bench:-

1. Intention to further activities of a terrorist organisation is an essential ingredient of the offences punishable under Sections 38 and 39 of the UAPA Act.

2. If after perusing the Charge Sheet, the Court is unable to draw a prima facie conclusion about truth of the allegations, the embargo created by the sub-section (5) of Section 43D will not apply.

3. If the Court is satisfied, after examining the material on record that the accusations are prima facie not true, the accused is entitled to bail.

4. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the Court while ascertaining prima facie case is not expected to hold a mini-trial by examining merits and demerits of the evidence, but by taking the material in the Charge Sheet as it is.

5. Since sanction has not been accorded for prosecuting the accused for the offence under Section 20, the Special Court cannot take cognizance of the offence under the said Section.

6. Materials prima facie establish the association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation.

7. Prima facie there is no material in the Charge Sheet to project active participation of the accused 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 organisation.

8. Prima facie, constant association or support of CPI(Maoist) by the accused for a long period of time is not borne out from the Charge Sheet.

9. The High Court did not deal with the prima facie finding of the Special Court regarding the absence of material to show intention.

10. Prosecution did not have a case that any of the bail conditions were breached by any of the accused after they were enlarged on bail.

11. There is no minimum punishment prescribed for the offences under Sections 38 and 39 of the 1967 Act and the accused can be let off even on fine. Thwaha has been in custody for more than 570 days.

12. Though the High Court did not record a satisfaction as contemplated by sub-section (5) of Section 43D, since the Supreme Court examined the material against both the accused in the context of 45 sub-section (5) of Section 43D, it is satisfied that accusation against both the accused are prima facie false.

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