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2021 (10) TMI 1430 - SC - Indian LawsTerrorist organisation or not - commission of terrorists act or not - offence of committing unlawful activities - HELD THAT - It is essentially an offence of committing unlawful activities as defined under Clause (o) of Section 2. The said offence has been alleged on the ground that two banners were found in the house of the Accused No. 2 which according to the prosecution invite public support to freedom movement of Jammu and Kashmir. Section 13 does not form a part of Chapter IV or VI. Hence, for consideration of grant of bail to a person Accused of an offence Under Section 13, stringent provisions of Sub-section (5) of Section 43D will not apply. The stringent conditions for grant of bail in Sub-section (5) of Section 43D will apply only to the offences punishable only under Chapters IV and VI of the 1967 Act. The offence punishable Under Section 13 being a part of Chapter III will not be covered by Sub-section (5) of Section 43D and therefore, it will be governed by the normal provisions for grant of bail under the Code of Criminal Procedure, 1973. The proviso imposes embargo on grant of bail to the Accused against whom any of the offences under Chapter IV and VI have been alleged. The embargo will apply when after perusing charge sheet, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, if after perusing the charge sheet, if the Court is unable to draw such a prima facie conclusion, the embargo created by the proviso will not apply. The Court while examining the issue of prima facie case as required by Sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is. The act of raising funds for the terrorist organisation has been alleged in charge sheet against both the Accused. This is a separate offence Under Section 40 of the 1967 Act of raising funds for a terrorist organisation which again contains intention to further the activity of terrorist organisation as its necessary ingredient. The offence punishable Under Section 40 has not been alleged in this case. The impugned Judgment and Order of the High Court to the extent to which it sets aside the order granting bail to him is quashed and set aside and the Order dated 9th September 2020 of the Special Court For the Trial of NIA Cases at Ernakulam in Crl. Misc. Petitions Nos. 55-56/20 in SC No. 1/2020/NIA granting bail to him is hereby restored - Appeal allowed.
Issues Involved:
1. Grant of bail to Accused No. 1 and Accused No. 2. 2. Applicability of Sections 20, 38, and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). 3. Interpretation of Section 43D(5) of UAPA regarding bail conditions. 4. The role of mens rea in offences under Sections 38 and 39 of UAPA. 5. Consideration of evidence for prima facie case under UAPA. Issue-Wise Detailed Analysis: 1. Grant of Bail to Accused No. 1 and Accused No. 2: The Supreme Court was tasked with evaluating the Kerala High Court's decision regarding the bail granted to Accused No. 1 and Accused No. 2. The High Court had upheld the bail for Accused No. 1 but revoked it for Accused No. 2. The Supreme Court restored the bail for Accused No. 2, emphasizing that stringent conditions were imposed by the Special Court, which were not breached by the accused. The Court noted that both accused had been in custody for a significant period, and the trial was unlikely to conclude soon. 2. Applicability of Sections 20, 38, and 39 of UAPA: The charges against the accused included Sections 38 and 39 of UAPA, which deal with associating with and supporting a terrorist organization with the intention to further its activities. The Court clarified that mere association or support is insufficient to attract these sections; the intention to further the organization's activities is crucial. The Court also noted that Section 20, which pertains to being a member of a terrorist gang or organization involved in terrorist acts, was not applicable as the necessary sanction for prosecution under this section was not sought by NIA. 3. Interpretation of Section 43D(5) of UAPA Regarding Bail Conditions: Section 43D(5) of UAPA imposes stringent conditions for granting bail to those accused of offences under Chapters IV and VI of the Act. The Court emphasized that the proviso to this section requires the Court to be satisfied that there are reasonable grounds for believing the accusations to be prima facie true. The Court found that the High Court had not properly applied this standard when revoking the bail for Accused No. 2. 4. The Role of Mens Rea in Offences Under Sections 38 and 39 of UAPA: The Court highlighted that both Sections 38 and 39 require mens rea, i.e., the intention to further the activities of a terrorist organization. The Court stated that the mere possession of materials related to the CPI (Maoist) or association with its members does not automatically imply such intention. The Court found no prima facie evidence in the charge sheet to suggest that the accused had the requisite intention to further the terrorist activities of CPI (Maoist). 5. Consideration of Evidence for Prima Facie Case Under UAPA: The Court examined the materials forming part of the charge sheet, including books, pamphlets, and digital content seized from the accused. It concluded that while these materials indicated an association with CPI (Maoist), they did not demonstrate an intention to further the organization's terrorist activities. The Court reiterated that for Sections 38 and 39 to be applicable, there must be evidence of active participation or overt acts indicating such intention, which was not present in this case. Conclusion: The Supreme Court allowed the appeal of Accused No. 2, restoring the bail granted by the Special Court, and dismissed the appeal of the Union of India, confirming the bail for Accused No. 1. The Court emphasized that its observations were limited to the bail applications and should not influence the trial or framing of charges.
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