# THWAHA FASAL v. UNION OF INDIA

- **Citation:** [2021] 8 S.C.R. 797
- **Court:** Supreme Court of India
- **Decided:** 2021-10-28
- **Case number:** Criminal Appeal No. 1302 of 2021
- **Bench:** Ajay Rastogi, Abhay S. Oka
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thwaha-fasal-v-union-of-india-35270
- **Pages:** 38

## Headnote

Unlawful Activities (Prevention) Act, 1967: Factors for
consideration while granting bail - 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 -
Thus, 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 - The grounds for believing that
the accusation against the accused is prima facie true must be
reasonable grounds - However, the Court while examining the issue
of prima facie case as required by sub-section (5) of s.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.
Unlawful Activities (Prevention) Act, 1967: Grant of bail by
Special court for NIA cases to accused no. 1 and 2 - Challenge
against - FIR registered against accused 1 to 3 for offences
punishable under ss. 20, 38 and 39 of unlawful Activities
(Prevention) Act, 1967 - Investigation was transferred to National
Investigation Agency (NIA) established under the NIA Act - Accused
no. 3 was absconding - Charge-sheet filed by NIA against accused
no. 1 and 2 under ss. 38 and 39 of 1967 Act as well as under s.
A
B
C
D
E
F
G
H
798
SUPREME COURT REPORTS
[2021] 8 S.C.R.
120-B IPC - Special Court allowed bail application of accused no.
1 and 2 - On State appeal, High Court set aside bail granted to
accused no. 2 while upholding bail granted to accused no. 1 -
Hence instant appeal by accused no. 2 as well as by State - Held:
Mere association with a terrorist organisation is not sufficient to
attract s.38 and mere support given to a terrorist organisation is
not sufficient to attract s.39 - The association and the support have
to be with intention of furthering the activities of a terrorist
organisation - In a given case, such intention can be inferred from
the overt acts or acts of active participation of the accused in the
activities of a terrorist organization which are borne out from the
materials forming a part of charge sheet - At formative young age,
the accused nos.1 and 2 might have been fascinated by what is
propagated by CPI (Maoist) - Therefore, they may be in possession
of various documents/books concerning CPI (Maoist) in soft or
hard form - Apart from the allegation that certain photographs
showing that the accused participated in a protest/gathering
organised by an organisation allegedly linked with CPI (Maoist),
prima facie there is no material in the charge sheet to project their
active participation in the activities of CPI (Maoist) - Order of
Special Court granting bail to accused no.2 is restored.
Unlawful Activities (Prevention) Act, 1967: s.43D - For
deciding the issue of prima facie case contemplated by sub-section
(5) of s.43D, the case against the both accused only under ss.38
and 39 is required to be considered - In view of the absence of
sanction and the fact that NIA did not even seek sanction for the
offence punishable under s.20, a prima facie case of the accused
being involved in the said offence is not made out at this stage -
Sub-section (5) of s.43D will not apply to s.13, as s.13 has been
incorporated in Chapter III of the 1967 Act.
Unlawful Activities (Prevention) Act, 1967: s.43D - The
restrictions imposed by sub-section (

## Text

_Characters 0–39,911 of 85,562. This is a partial read: ask again with offset=39911 for what follows._

A
B
C
D
E
F
G
H
797
[2021] 8 S.C.R. 797
797
THWAHA FASAL
v.
UNION OF INDIA
(Criminal Appeal No. 1302 of 2021)
OCTOBER 28, 2021
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Unlawful Activities (Prevention) Act, 1967: Factors for
consideration while granting bail - 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 -
Thus, 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 - The grounds for believing that
the accusation against the accused is prima facie true must be
reasonable grounds - However, the Court while examining the issue
of prima facie case as required by sub-section (5) of s.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.
Unlawful Activities (Prevention) Act, 1967: Grant of bail by
Special court for NIA cases to accused no. 1 and 2 - Challenge
against - FIR registered against accused 1 to 3 for offences
punishable under ss. 20, 38 and 39 of unlawful Activities
(Prevention) Act, 1967 - Investigation was transferred to National
Investigation Agency (NIA) established under the NIA Act - Accused
no. 3 was absconding - Charge-sheet filed by NIA against accused
no. 1 and 2 under ss. 38 and 39 of 1967 Act as well as under s.
A
B
C
D
E
F
G
H
798
SUPREME COURT REPORTS
[2021] 8 S.C.R.
120-B IPC - Special Court allowed bail application of accused no.
1 and 2 - On State appeal, High Court set aside bail granted to
accused no. 2 while upholding bail granted to accused no. 1 -
Hence instant appeal by accused no. 2 as well as by State - Held:
Mere association with a terrorist organisation is not sufficient to
attract s.38 and mere support given to a terrorist organisation is
not sufficient to attract s.39 - The association and the support have
to be with intention of furthering the activities of a terrorist
organisation - In a given case, such intention can be inferred from
the overt acts or acts of active participation of the accused in the
activities of a terrorist organization which are borne out from the
materials forming a part of charge sheet - At formative young age,
the accused nos.1 and 2 might have been fascinated by what is
propagated by CPI (Maoist) - Therefore, they may be in possession
of various documents/books concerning CPI (Maoist) in soft or
hard form - Apart from the allegation that certain photographs
showing that the accused participated in a protest/gathering
organised by an organisation allegedly linked with CPI (Maoist),
prima facie there is no material in the charge sheet to project their
active participation in the activities of CPI (Maoist) - Order of
Special Court granting bail to accused no.2 is restored.
Unlawful Activities (Prevention) Act, 1967: s.43D - For
deciding the issue of prima facie case contemplated by sub-section
(5) of s.43D, the case against the both accused only under ss.38
and 39 is required to be considered - In view of the absence of
sanction and the fact that NIA did not even seek sanction for the
offence punishable under s.20, a prima facie case of the accused
being involved in the said offence is not made out at this stage -
Sub-section (5) of s.43D will not apply to s.13, as s.13 has been
incorporated in Chapter III of the 1967 Act.
Unlawful Activities (Prevention) Act, 1967: s.43D - The
restrictions imposed by sub-section (5) of s.43D per se do not prevent
a Constitutional Court from granting bail on the ground of violation
of Part III of the Constitution.
Disposing of the appeals, the Court
HELD: 1.1 Clause (m) of Section 2 of the Unlawful Activities
(Prevention) Act, 1967 defines "terrorist organisation". It is
A
B
C
D
E
F
G
H
799
defined as an organisation listed in the First Schedule. CPI
(Maoist) has been listed at Item no.34 in the First Schedule.
Chapters III onwards of the 1967 Act incorporate various
offences. Chapter IV has the title "punishment for terrorist act".
Clause (k) of Section 2 provides that "terrorist act" has the
meaning assigned to it under Section 15. In this case, there is no
allegation against the accused nos.1 and 2 of committing any
terrorists act. The offence punishable under Section 20 is attracted
when the accused is a member of a terrorist gang or a terrorist
organisation which is involved in terrorist act. Section 20 is not
attracted unless the terrorist gang or terrorist organisation of
which the accused is a member is involved in terrorist act as
defined by Section 15. [Paras 8, 10][815-C-E; 816-G; 818-C-D]
1.2 On plain reading of Section 38, the offence punishable
therein will be attracted if the accused associates himself or
professes to associate himself with a terrorist organisation
included in First Schedule with intention to further its activities.
In such a case, he commits an offence relating to membership of
a terrorist organisation covered by Section 38. The person
committing an offence under Section 38 may be a member of a
terrorist organization or he may not be a member. If the accused
is a member of terrorist organisation which indulges in terrorist
act covered by Section 15, stringent offence under Section 20
may be attracted. If the accused is associated with a terrorist
organisation, the 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. The association must be with intention to further
the activities of a terrorist organisation. Clause (b) of proviso to
sub-section (1) of Section 38 provides that if a person charged
with the offence under sub-section (1) of Section 38 proves that
he has not taken part in the activities of the organisation during
the period in which the name of the organisation is included in
the First Schedule, the offence relating to membership of terrorist
organisation under sub-section (1) of Section 38 will not be
attracted. [Para 11][818-E-H; 819-A]
THWAHA FASAL v. UNION OF INDIA
A
B
C
D
E
F
G
H
800
SUPREME COURT REPORTS
[2021] 8 S.C.R.
1.3 Section 39 deals with the offences relating to support
given to a terrorist organisation. It covers three kinds of offences
under clauses (a), (b) and (c) of sub-section (1) of Section 39. The
offences punishable under clauses (a), (b) and (c) of sub-section
(1) of Section 39 are attracted only when the actions incorporated
therein are done with intention to further the activities of a
terrorist organisation. The activities must have some connection
with terrorist act. Thus, the offence under sub-section (1) of
Section 38 of associating or professing to be associated with the
terrorist organisation and the offence relating to supporting a
terrorist organisation under Section 39 will not be attracted unless
the acts specified in both the Sections are done with intention to
further the activities of a terrorist organisation. To that extent,
the requirement of mens rea is involved. Thus, mere association
with a terrorist organisation as a member or otherwise will not
be sufficient to attract the offence under Section 38 unless the
association is with intention to further its activities. Even if an
accused allegedly supports a terrorist organisation by committing
acts referred in clauses (a) to (c) of sub-section (1) of Section 39,
he cannot be held guilty of the offence punishable under Section
39 if it is not established that the acts of support are done with
intention to further the activities of a terrorist organisation. [Paras
12, 13][819-B-F]
2.1 The accused no.2 has been charged with the offence
punishable under Section 13. 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. 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
A
B
C
D
E
F
G
H
801
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. [Paras 15, 17][819-H; 820-D-F;
821-B-D]
National Investigation Agency v. Zahoor Ahmad Shah
Watali (2019) 5 SCC 1 : [2019] 5 SCR 1060 - relied
on.
2.2 Under sub-section (1) of Section 45 of the 1967 Act,
the Court is not empowered to take cognizance of any offence
under Chapters IV and VI without previous sanction of the
Central Government. Procedure for obtaining sanction has been
laid down in sub-section (2) of Section 45. Paragraphs 2 and 3 of
the order of sanction show that though the offence was registered
under Sections 20, 38 and 39 of the 1967 Act, by a letter dated
13th April 2020, NIA did not seek sanction for prosecuting any of
the three accused for the offence punishable under Section 20.
Sanction was sought to prosecute the accused nos.1 and 2 for the
offences punishable under Sections 38 and 39. In addition, a
sanction was sought to prosecute the accused no.2 under Section
13. Paragraph 4 of the order refers to the authority appointed by
the Central Government under sub-section (2) of Section 45
consisting of a retired Judge of a High Court and a retired Law
Secretary, as well as the report submitted by the said authority.
Paragraph 6 of the said order records prima facie satisfaction of
the Central Government that a case is made out against the
accused under the provisions of the Act of 1967, as mentioned in
letter dated 13th April 2020. Thus, sanction under sub-section
(1) of Section 45 has not been accorded for prosecuting the
accused for the offence punishable under Section 20 of the Act of
1967 and, therefore, the Special Court under NIA Act cannot
take cognizance of the offence punishable under Section 20.
Therefore, for deciding the issue of prima facie case contemplated
by sub-section (5) of Section 43D, the case against the both
THWAHA FASAL v. UNION OF INDIA
A
B
C
D
E
F
G
H
802
SUPREME COURT REPORTS
[2021] 8 S.C.R.
accused only under Sections 38 and 39 is required to be
considered. In view of the absence of sanction and the fact that
NIA did not even seek sanction for the offence punishable under
Section 20, a prima facie case of the accused being involved
in the said offence is not made out at this stage. [Paras 21, 22]
[824-B-H; 825-A-B]
2.3 The restrictions imposed by sub-section (5) of Section
43D per se do not prevent a Constitutional Court from granting
bail on the ground of violation of Part III of the Constitution. The
material forming part of charge sheet is in the form of books and
other printed material found in the custody of the accused nos.1
and 2 and the material found on the digital devices seized from
the accused no.2. The judge of the Special Court in his detailed
judgment has categorised the seized material into 12 categories
in paragraph 59. As regards the accused no.1, certain documents
were found in the shoulder bag carried by him when he was
apprehended. FSL report shows that the cell phone of the accused
no.1 had a video clip with the title "Kashmir bleeding", as well
as portraits of various communist revolutionary leaders, like Che
Guvera and Mao Tse Tung, as also portrait of Geelani, a Kashmiri
leader. Copies of certain posters were also found. Pdf files
extracted showed that it contained material regarding abrogation
of Article 370 of the Constitution and various other items. The
photographs also showed that the accused no.1 attended protest
gathering conducted in October 2019 by Kurdistan Solidarity
Network. As regards the accused no.2, on his devices, images of
CPI (Maoist) flag, files relating to constitution of central
committee of CPI (Maoist), files relating to CPI (Maoist) central
committee programme, image of hanging Prime Minister, various
newspaper cuttings relating to maoist incidents were found. A
book was also seized relating to encounter with PLGA (Maoist)
at Agali. The Special Judge noted that the face book account, email accounts and call details of the accused do not contain any
incriminating evidence. High Court has not recorded that any
incriminating material was found therein. [Paras 23, 25, 28, 29,
30][825-C; 827-E-F; 830-E-H]
2.4 Another piece of evidence against the accused no.2 is
that during the search of his residence, he shouted slogans, such
A
B
C
D
E
F
G
H
803
as inquilab zindabad and maoisim zindabad. He also shouted
slogans containing greetings to the brave martyrs who died in an
armed encounter between Maoist members and police. Another
material forming a part of the charge sheet is that absconding
accused no.3 visited the place where the accused no.1 was staying
as a paying guest. Material was found regarding collection of
membership fees and other amounts by the accused for the benefit
of the said organization. Taking the charge sheet as correct, at
the highest, it can be said that the material prima facie establishes
association of the accused with a terrorist organisation CPI
(Maoist) and their support to the organisation. Thus, as far as
the accused no.1 is concerned, it can be said he was found in
possession of soft and hard copies of various materials concerning
CPI (Maoist). He was seen present in a gathering which was a
part of the protest arranged by an organisation which is allegedly
having link with CPI (Maoist). As regards the accused no.2,
minutes of the meeting of various committees of CPI (Maoist)
were found. Certain banners/posters were found in the custody
of the accused no.2 for which the offence under Section 13 has
been applied of indulging in unlawful activities. [Paras 31, 32,
33][831-A-E]
2.5 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. The
association and the support have to be with intention of furthering
the activities of a terrorist organisation. In a given case, such
intention can be inferred from the overt acts or acts of active
participation of the accused in the activities of a terrorist
organization which are borne out from the materials forming a
part of charge sheet. At formative young age, the accused nos.1
and 2 might have been fascinated by what is propagated by CPI
(Maoist). Therefore, they may be in possession of various
documents/books concerning CPI (Maoist) in soft or hard form.
Apart from the allegation that certain photographs showing that
the accused participated in a protest/gathering organised by an
organisation 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
THWAHA FASAL v. UNION OF INDIA
A
B
C
D
E
F
G
H
804
SUPREME COURT REPORTS
[2021] 8 S.C.R.
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. An allegation is made that they were found
in the company of the accused no.3 on 30th November, 2019. That
itself may not be sufficient to infer the presence of intention. But
that is not sufficient at this stage to draw an inference of presence
of intention on their part which is an ingredient of Sections 38
and 39 of the 1967 Act. Apart from the fact that overt acts on
their part for showing the presence of the required intention or
state of mind are not borne out from the charge sheet, prima
facie, their constant association or support of the organization
for a long period of time is not borne out from the charge sheet.
[Para 34][831-F-H; 832-A-D]
2.6 The judge of the Special Court after examining the entire
materials on record of the charge sheet noted that there is no
prima facie material to show intention on the part of both the
accused to further the activities of the terrorist organisation.
Perusal of the impugned judgment of the High Court shows that
it has considered various aspects, such as the accused were
carrying their mobile phones when they were apprehended on
30th November 2019 and that the documents which were
possessed by the respondents were not out of curiosity or for
intellectual pursuits. The High Court observed that the Special
Judge has oversimplified the matter. However, the High Court
did not notice that by taking the material collected during the
investigation which forms a part of the charge sheet as it is, the
Special Court had recorded a prima facie finding regarding the
absence of any material to show intention on the part of the accused
to further the activities of CPI (Maoist). The High Court has not
recorded prima facie finding on this aspect. By applying the law
laid down in the case of Watali, there were no reasonable grounds
for believing that the accusations against the accused nos.1 and
2 of commission of offences under Sections 38 and 39 were prima
facie true. [Para 36][832-E-H; 833-A]
3.1 There are other relevant factors which need
consideration. The Special Court while enlarging the accused
nos.1 and 2 on bail had imposed most stringent conditions, such
as furnishing of bail bonds of Rs. One lakh with two sureties each
for the like amount with further condition that one of the sureties
A
B
C
D
E
F
G
H
805
shall be one of the parents of the accused and the other surety,
shall be a relative of the accused. There was a condition imposed
of marking attendance on every first Saturday of every month at
local police station and also of not associating in any manner or
supporting in any manner activities of CPI (Maoist) and all its
formations. The accused nos.1 and 2 were directed to not leave
territorial limits of the State of Kerala without permission of the
Special Court. Moreover, SHO of the concerned police station
was directed to monitor the activities of both the accused. It is
not the case of the prosecution that any conditions were breached
by any of the accused after they were enlarged on bail.
[Para 37][833-A-D]
3.2 As held in the case of K.A. Najeeb, the stringent
restrictions imposed by sub-section(5) of Section 43D, do not
negate the power of Constitutional Court to grant bail keeping in
mind violation of Part III of the Constitution. It is not disputed
that the accused no.1 is taking treatment for a psychological
disorder. The accused no.1 is a student of law. Moreover, 92
witnesses have been cited by the prosecution. Even assuming
that some of the witnesses may be dropped at the time of trial,
there is no possibility of the trial being concluded in a reasonable
time as even charges have not been framed. There is no minimum
punishment prescribed for the offences under Sections 38 and
39 of the 1967 Act and the punishment can extend to 10 years or
only fine or with both. Hence, depending upon the evidence on
record and after consideration of relevant factors, the accused
can be let off even on fine. As regards the offence under Section
13 alleged against accused no.2, the maximum punishment is of
imprisonment of 5 years or with fine or with both. The accused
no.2 has been in custody for more than 570 days. [Para 38]
[833-D-G]
Union of India v. K.A. Najeeb (2021) 3 SCC 713 -
relied on
3.3 It is true that without recording a satisfaction as
contemplated by sub-section (5) of Section 43D, the order
granting bail to the accused no.1 could not have been confirmed
by the High Court. However, taking the materials forming part
THWAHA FASAL v. UNION OF INDIA
A
B
C
D
E
F
G
H
806
SUPREME COURT REPORTS
[2021] 8 S.C.R.
of the charge sheet as it is, the accusation against both the accused
of the commission of offences punishable under Sections 38 and
39 does not appear to be prima facie true. [Para 39][833-H;
834-A-B]
People's Union for Civil Liberties and Anr. v. Union of
India (2004) 9 SCC 580 : [2003] 6 Suppl. SCR 860;
Arup Bhuyan v. State of Assam (2011) 3 SCC 377 :
[2011] 2 SCR 506; State of Gujarat v. Girish
Radhakrishnan Varde (2014) 3 SCC 659 : [2013] 12
SCR 930 ; Mahipal v. Rajesh Kumar alias Polia and
Anr. (2020) 2 SCC 118; Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra (2005) 5 SCC 294 :
[2005] 3 SCR 345 - referred to
Case Law Reference
[2003] 6 Suppl. SCR 860
referred to
para 5
[2011] 2 SCR 506
referred to
para 5
(2021) 3 SCC 713
relied on
para 5
[2019] 5 SCR 1060
relied on
para 5
[2013] 12 SCR 930
referred to
para 6
(2020) 2 SCC 118
referred to
para 7
[2005] 3 SCR 345
referred to
para 19
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1302 of 2021
From the Judgment and Order dated 04.01.2021 of the High Court
of Kerala at Ernakulam in Criminal Appeal No.705 of 2020.
With
Criminal appeal no.1303 of 2021
S. V. Raju, ASG, Jayanth Muthuraj, R. Basant, Sr. Advs., John S.
Ralph, Judy James, R. Anas Muhammed Shamnad, Anoop C. C., T. K.
Babu, Boby Thomas, Ralph R. John, Rahul Mishra, Ms. Sairica Raju,
Annam Venkatesh, B. V. Balaram Das, Raghenth Basant, Manu
Krishnan, Arjun Singh Bhati, Ms. Roopali Lakhotia, Ms. Urja Pandey,
Advs. for the appearing parties.
A
B
C
D
E
F
G
H
807
The Judgment of the Court was delivered by
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
THWAHA FASAL v. UNION OF INDIA
A
B
C
D
E
F
G
H
808
SUPREME COURT REPORTS
[2021] 8 S.C.R.
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 27nd 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 SubInspector 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 the 1967 Act alleging that the accused nos. 1
and 2 were the members of the Communist Party of India (Maoist) [for
short "CPI (Maoist)"] which is a terrorist organisation within the meaning
of Clause (m) of Section 2 of the 1967 Act which is listed at Item No.34
in the First Schedule to the 1967 Act. By the order dated 18th April 2020,
the Government of India granted sanction in exercise of powers under
Section 45 of the 1967 Act to prosecute the accused no.1 for offences
punishable under Sections 38 and 39 of the 1967 Act. Under the same
order, a sanction to prosecute the accused no.2 for the offences
punishable under Sections 13, 38 and 39 of the 1967 Act was granted.
As can be seen from the order dated 18th April 2020, NIA had
recommended for grant of sanction under the aforesaid Sections. It is
pointed out across the Bar by Shri S.V. Raju, the learned Additional
Solicitor General of India (ASG) that the case is fixed for framing of
charge. However, it was also pointed out across the Bar that a report
from the Forensic Science Laboratory is not yet received.
A
B
C
D
E
F
G
H
809
SUBMISSIONS OF THE LEARNED COUNSEL
5. Shri Jayanth Muthuraj, the learned Senior Counsel representing
accused no.2 in support of the appeal preferred by the said accused
made detailed submissions which can be summarised as under:
(a)
Though FIR was registered against both the accused for
the offences punishable under Sections 20, 38 and 39 of
the 1967 Act, while filing the charge sheet, the offence
punishable under Section 20 has not been invoked. He
pointed out that Section 20 is applicable to an accused who
is a member of a terrorist gang or a terrorist organisation
which is involved in a terrorist act. He submitted that though
there is an allegation made in the FIR that the accused
nos.1 and 2 are members of CPI (Maoist), even sanction
to prosecute the accused under Section 20 has not been
granted in accordance with Section 45 of the 1967 Act. He
submitted that the maximum punishment for the offence
under Section 20 is of imprisonment for life and fine.
However, for the offences under Sections 38 and 39, the
maximum punishment is of 10 years or with fine or with
both. He submitted that Section 13 of the 1967 Act has
been applied to the accused no.2 for which the maximum
punishment is of 5 years or fine or with both.
(b)
He pointed out that the stringent provisions for grant of bail
provided in sub-section (5) of Section 43D of the 1967 Act
are applicable only for the persons accused of offences
punishable under Chapters IV and VI of the 1967 Act. He
submitted that Section 13 is a part of Chapter III and
therefore, only for the offences punishable under Sections
38 and 39 of the1967 Act, stringent provisions of sub-section
(5) of Section 43D will have to be applied.
(c)
He invited our attention to the fact that on 1st November
2019 in the red file carried by the accused no.2, a book on
Caste Issues in India and a book styled as Organisational
Democracy, Disagreement with Lenin were found. He
pointed out that from the house search of the accused no.2,
18 items were found most of which are documents. He
pointed out that two red colour banners were seized from
his house calling upon people to support the freedom
THWAHA FASAL v. UNION OF INDIA
[ABHAY S. OKA, J.]
A
B
C
D
E
F
G
H
810
SUPREME COURT REPORTS
[2021] 8 S.C.R.
struggle of Jammu and Kashmir. He pointed that one laptop,
mobile phone with sim, two additional sim cards, three
memory cards and two pen drives were seized from the
house of the accused no. 2.
(d)
He submitted that even assuming that the accused no. 2
was found in possession of various materials concerning
the activities and meetings of the CPI (Maoist), Sections
38 and 39 are not attracted. He submitted that the offence
under sub-section (1) of Section 38 can be made out if a
person associates himself with a terrorist organisation with
intention to further its activities. He submitted that similarly,
an offence under Section 39 is attracted only when the acts
incorporated in Section 39 are committed with intention to
further the activity of a terrorist organisation. He submitted
that the charge sheet does not disclose any material to show
that there was such an intention on the part of the accused
no.2.
(e)
The learned Judge of the Special Court has taken into
consideration each and every material incorporated against
the accused in the charge sheet and has concluded that 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. He submitted
that there are no reasons assigned by the High Court to
disturb the said prima facie finding. He relied upon a
decision of this Court in the case of People's Union for
Civil Liberties and Anr. v. Union of India1. He submitted
that the challenge in the said case before this Court was to
the constitutional validity of various provisions of the
Prevention of Terrorism Act, 2002 (for short "POTA"). He
submitted that this Court accepted the argument of the
learned Attorney General of India that Sections 20, 21 and
22 would not cover any activities which do not have an
element of intention of furthering or encouraging terrorist
activity or facilitating its commission. He submitted that it
was held that the said three provisions do not exclude mens
rea. He also relied upon another decision of this Court in
1 (2004) 9 SCC 580
A
B
C
D
E
F
G
H
811
the case of Arup Bhuyan v. State of Assam2. He submitted
the offences under Sections 38 and 39 are not attracted
unless it is shown that the accused nos. 1 and 2 were active
members of CPI (Maoist). He also pointed out that
subsequently in the year 2015, the said decision has been
referred to a larger Bench by a Coordinate Bench.
(f)
The learned Senior Counsel relied upon a decision of this
Court in the case of Union of India v. K.A. Najeeb3.
Relying upon the said decision, he submitted that the
statutory embargo imposed by sub-section (5) of Section
43D of the 1967 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.
He submitted that in the statutes like the Narcotics Drugs
and Psychotropic Substances Act, 1985 (for short "the
NDPS Act"), while granting bail, there is a requirement of
the Court recording a prima facie satisfaction that the
accused is not guiltyof the offence alleged against him and
that he is unlikely to commit another offence while on bail.
But there is no such pre-condition in the 1967 Act. He
submitted that under sub-section (5) of Section 43D, before
granting bail, the Court is required to record a satisfaction
that there are reasonable grounds for believing that the
accusation against the accused is prima facie not made
out.
(g)
He submitted that even going by the tests laid down by this
Court in the case of National Investigation Agency v.
Zahoor Ahmad Shah Watali4, the accused no.2 is entitled
to bail. He submitted that stringent conditions were imposed
by the Special Court while enlarging the accused no.2 on
bail.
(h)
He submitted that immediately after cancellation of bail
under the impugned Judgment and Order, the accused no.2
surrendered. He pointed out that the accused no.2 is in
custody for more than 572 days. He pointed out that 92
2 (2011) 3 SCC 377
3 (2021) 3 SCC 713
4 (2019) 5 SCC 1
THWAHA FASAL v. UNION OF INDIA
[ABHAY S. OKA, J.]
A
B
C
D
E
F
G
H
812
SUPREME COURT REPORTS
[2021] 8 S.C.R.
witnesses have been cited in the charge sheet and even
charge has not been framed by the Special Court. He
submitted that the punishment imposed under Sections 38
and 39 of the 1967 Act can extend to ten years or fine or
with both. He submitted that considering the fact that charge
is not yet framed and total 92 witnesses are to be examined,
the trial is not likely to be completed in near future. He
submitted that as FSL report is yet to be received, charge is
not likely to be framed immediately.
6. Shri S.V. Raju, the learned Additional Solicitor General made
the following submissions for opposing the appeal preferred by the
accused no.2 and in support of the appeal preferred by the Union of
India:
(a)
He submitted that Item No. 34 of Schedule 1 of the 1967
Act incorporates CPI (Maoist) in the list of terrorist
organisations within the meaning of Clause (m) of Section
2 of the 1967 Act. He submitted that the said organisation
is a terrorist organisation as distinguished from an unlawful
association contemplated by Clause (p) of Section 3 of the
1967 Act.
(b)
He pointed out from the counter filed by NIA and in
particular Clauses (i) to (xvi) of paragraph 30 that when
the house of the accused no.2 was being searched, he
shouted various slogans such as Inquilab Zindabad, Maoism
Zindabad, Naxalbari Zindabad etc. He pointed out that two
red colour handmade cloth banners of CPI (Maoist) were
recovered from his residence calling upon people to support
the struggle for independence of Kashmir. He submitted
that material used for preparation of banners was also
recovered. He submitted that the contents of the banners
amount to inciting the rebellion and public disorder.
(c)
He pointed out that during the house search of the accused
no.2 not only various materials published by CPI (Maoist)
were found but a notebook was found containing minutes
of the meeting held on 15th September 2019. He pointed
out that the said notebook was found in a locked room inside
his house. He pointed out that soft copies of number of
volumes of news bulletin of CPI (Maoist) were recovered
A
B
C
D
E
F
G
H
813
from the digital device used by the accused no.2. He
submitted that the digital device also contains the party
programme issued by the Central Committee of CPI
(Maoist) and the road map of the party. He submitted that
the digital device also contains material about the political
and military strategy of the CPI (Maoist).
(d)
He submitted that material found from the custody of both
the accused and the material seized from their houses
indicates that both of them and especially the accused no.2
are intimately connected with activities of CPI (Maoist).
He submitted that the very fact that the minutes of the secret
meetings were found in the custody of the accused no.2
shows that he is actively involved in the activities of the
terrorist organisation. He submitted that considering the
material forming a part of the charge sheet, intention on the
part of both the accused to further the activities of the
terrorist organisation can be inferred.
(e)
He submitted that a person who is a member of terrorist
organisation can be prosecuted under Section 38 of the 1967
Act. He submitted that though Section 20 may not have
been applied, in view of the decision of this Court in the
case of the State of Gujarat v. Girish Radhakrishnan
Varde5, the Special Court can disagree with the police report
and issue process for an offence which is not made out in
the charge sheet. He submitted that even further
investigation can be ordered by the Court.
(f)
He submitted that the prosecution can subsequently obtain
the sanction to prosecute for the offence punishable under
Section 20 of the 1967 Act as well. He submitted that apart
from the fact that the decision in the case of Arup
Bhuyan(supra) has been referred to a larger Bench, the
issue involved in the said case was in connection with
Terrorist and Disruptive Activities (Prevention) Act, 1987
(for short "TADA"). He submitted that the case of PUCL
(supra), the challenge was to various provisions in POTA
and not the 1967 Act.
5 (2014) 3 SCC 659
THWAHA FASAL v. UNION OF INDIA
[ABHAY S. OKA, J.]
A
B
C
D
E
F
G
H
814
SUPREME COURT REPORTS
[2021] 8 S.C.R.
(g)
He submitted that the High Court while confirming the order
granting bail to the accused no.1 has completely disregarded
sub-section (5) of Section 43D of the 1967 Act. He
submitted that the bail granted to the accused No.1 has
been confirmed by the High Court by ignoring sub-section
5 of Section 43D.
(h)
He submitted that the Special Court has completely ignored
the law laid down in the case of Watali (supra) and as
rightly found by the High Court, the Special Court has
conducted a mini trial which is not permissible.
(i)
He submitted that the accused nos.1 and 2 who are the
active members of the terrorist organisation are trying to
create disharmony with the object of overthrowing the
democratically elected government. He submitted that
though the personal liberty is sacrosanct, the individual rights
should subserve the national interest. He submitted that the
prima facie findings recorded by the High Court on
consideration of the entire material against the accused
Nos.1 and 2 disentitle both of them to grant of bail.
7. The learned Senior Counsel Shri R. Basant appearing for the
accused no.1 opposed the submissions made by learned ASG in the
appeal preferred by Union of India. His submissions can be briefly
summarised as under: -
(a) He submitted that NIA never sought sanction to prosecute the
accused Nos.1 and 2 for the offence punishable under Section 20 of the
1967 Act.