Supreme Court Grants Bail Despite Upholding High Court Order in Unlawful Activities Case: Akhil Gogoi vs. State (NIA) (2023)

Introduction

Date of the Judgment: April 18, 2023

Citation: 2023 INSC 352

Judges: V. Ramasubramanian, J. and Pankaj Mithal, J.

Can an individual, previously discharged by a Special Court, be re-arrested after a High Court overturns the discharge order? The Supreme Court of India recently addressed this question in the case of Akhil Gogoi vs. The State (National Investigation Agency) & Ors. The court, while upholding the High Court’s decision to set aside the discharge order, granted bail to the petitioner, Akhil Gogoi, a sitting member of the Assam Legislative Assembly. This judgment highlights the balance between judicial process and individual liberty. The judgment was authored by Justice V. Ramasubramanian, with Justice Pankaj Mithal concurring.

Case Background

On December 13, 2019, a First Information Report (FIR), Chanmari Case No.1688/2019, was registered against Akhil Gogoi and three others. The charges included offenses under Sections 120B, 124A, 153A, and 153B of the Indian Penal Code, 1860, and Sections 18 and 39 of The Unlawful Activities (Prevention) Act, 1967. The National Investigation Agency (NIA) took over the investigation, re-registering the FIR as RC-13/2019/NIA-GUW [KMSS-CPI(Maoist)] link case.

Akhil Gogoi was arrested on December 17, 2019, and a charge sheet was filed on May 29, 2020. His bail application was rejected by the Special Court on August 7, 2020, and subsequent challenges before the High Court and the Supreme Court were unsuccessful. However, on July 1, 2021, the Special Court (NIA) discharged Akhil Gogoi, leading to his release after 567 days of incarceration.

The NIA appealed the discharge order, and the Gauhati High Court overturned the Special Court’s decision on February 9, 2023. This led to Akhil Gogoi filing a special leave petition before the Supreme Court.

Timeline

Course of Proceedings

The Special Court (NIA) discharged all four accused, including Akhil Gogoi, on July 1, 2021. The NIA appealed this order, and the Gauhati High Court reversed the discharge order on February 9, 2023. The High Court remanded the matter back to the Special Court for a fresh hearing on framing of charges.

Accused Nos. 2 and 3 initially filed a special leave petition (SLP) before the Supreme Court, which was dismissed on February 17, 2023. Following this, Akhil Gogoi (A-1) filed his special leave petition. The Supreme Court, while initially inclined to dismiss the petition, considered the fact that Akhil Gogoi was at risk of re-arrest, unlike the other accused, and issued a limited notice to consider protection against arrest.

Legal Framework

The case involves several key legal provisions. The charges against Akhil Gogoi included:

• Sections 120B (criminal conspiracy), 124A (sedition), 153A (promoting enmity between different groups), and 153B (imputations, assertions prejudicial to national-integration) of the Indian Penal Code, 1860.
• Sections 18 (punishment for conspiracy) and 39 (offence relating to support given to a terrorist organisation) of The Unlawful Activities (Prevention) Act, 1967.

The High Court reversed the discharge order primarily on two grounds: (i) the Special Court did not provide sufficient opportunity to the prosecution to respond to the accused’s written submissions, and (ii) the Special Court delved into minute details at the stage of framing charges, which it should not have done.

The Supreme Court also noted Section 20 of the National Investigation Agency Act, 2008, which allows the Special Court to transfer the matter to a competent court if it finds that the charges under the Unlawful Activities (Prevention) Act, 1967, cannot be framed, but there are grounds to frame charges under the Indian Penal Code, 1860.

Arguments

Arguments by the Petitioner (Akhil Gogoi):

• The petitioner had already served approximately 18 and a half months in jail from December 17, 2019, to July 1, 2021.
• Since his discharge, he has been a free person for over 21 months.
• He was elected to the Assam Legislative Assembly in 2021 and is currently a sitting member.
• The FIR relates to protests against The Citizenship (Amendment) Act, 2019.
• Allegations of Maoist ideology are based on statements from 2009, which are not relevant to the current case.
• A protected witness’s statement indicated that the petitioner did not support violent methods.

Arguments by the Respondent (NIA):

• There are 64 FIRs against the petitioner.
• The petitioner is a leader of a terrorist organization inciting violence.
• The petitioner’s bail application was rejected up to the Supreme Court.
• The petitioner’s release was due to a wrong discharge order, which has now been set aside.
• The special leave petition should not be converted into a bail application.
• Statements of protected witnesses show the petitioner does not deserve any sympathy.

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was whether the petitioner should be protected from arrest, considering the High Court had set aside the discharge order by the Special Court.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court did not cite any specific cases or books in its judgment. However, it considered the following legal provisions:

• Sections 120B, 124A, 153A, and 153B of the Indian Penal Code, 1860: These sections deal with criminal conspiracy, sedition, promoting enmity between groups, and imputations prejudicial to national integration, respectively.
• Sections 18 and 39 of The Unlawful Activities (Prevention) Act, 1967: These sections pertain to punishment for conspiracy and offenses related to support given to a terrorist organization.
• Section 20 of the National Investigation Agency Act, 2008: This section allows the Special Court to transfer a case to a competent court if charges under the Unlawful Activities (Prevention) Act, 1967 cannot be framed, but there are grounds to frame charges under the Indian Penal Code, 1860.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court considered the Indian Penal Code, 1860 and The Unlawful Activities (Prevention) Act, 1967 to determine the nature of the offenses alleged.
• The Court considered Section 20 of the National Investigation Agency Act, 2008 regarding the transfer of cases to competent courts.

What weighed in the mind of the Court?

The Supreme Court’s decision to grant bail to Akhil Gogoi, despite upholding the High Court’s order, was influenced by several factors. The court emphasized the petitioner’s significant period of incarceration as an undertrial, his conduct as a free man for over 21 months without any unlawful activity, and his current position as a sitting member of the Legislative Assembly. The court also considered the fact that the matter was remanded back to the Special Court for fresh consideration on framing charges. The court balanced the need for judicial process with the individual’s right to liberty, especially when the investigation was complete and the petitioner was not yet a convicted criminal.

The Court rejected the argument that the special leave petition could not be converted into a bail application, stating that it could consider a smaller relief even if it rejects the larger one. The Court also noted that the previous rejection of bail was “at this stage,” indicating that the circumstances had changed. The court emphasized that the purpose of detention is either to facilitate investigation or as a measure of penalty after conviction, and neither applied in this case.

The Supreme Court stated, “It is true that the application for bail filed by the petitioner, during the period when investigation was pending, was rejected upto this Court. But as rightly pointed out by Shri Huzefa Ahmadi, learned senior counsel, this Court recorded in its order dated 11.02.2021 that it was not inclined to grant bail to the petitioner “at this stage ”. Therefore, the dismissal of the application for bail at the time when investigation was pending, is no ground to reject the prayer for protection against arrest, now made by the petitioner.”

The Court also observed, “Admittedly the petitioner has suffered incarceration for about 567 days from 17.12.2019 to 01.07.2021. He has been out as a free man for the past more than 21 months. It is important to note that his freedom was secured not by an order of bail, but by an order of discharge passed by the Special Court, which has now been reversed by the High Court. Nothing has been brought on record to show that during this period of 21 months, when the petitioner has been a free man, he has indulged in any unlawful activity.”

The Court concluded, “Therefore, we do not think that any purpose will be served in allowing the Special Court to remand him to custody and then enabling him to move an application for bail.”

Key Takeaways

• The Supreme Court can grant bail even when it upholds a High Court’s decision to set aside a discharge order.
• The Court considers the period of incarceration already served by an undertrial.
• The Court takes into account the conduct of the accused after being released, especially if the release was not on bail.
• The Court balances the need for judicial process with the individual’s right to liberty.
• The purpose of detention is either to facilitate investigation or as a measure of penalty after conviction.

Directions

The Supreme Court directed the release of Akhil Gogoi on bail, pending trial, subject to terms and conditions imposed by the Special Court (NIA) Guwahati.

Development of Law

The ratio decidendi of this case is that the Supreme Court can grant bail to an accused even when it upholds the High Court’s decision to set aside a discharge order by the Special Court. This decision clarifies that the court can consider the individual’s right to liberty, especially when the investigation is complete and the accused has already served a significant period of incarceration. It also emphasizes that the purpose of detention is not punitive before conviction.

Conclusion

In conclusion, the Supreme Court, while confirming the High Court’s judgment, granted bail to Akhil Gogoi, recognizing his period of incarceration, his conduct as a free man, and his position as a sitting MLA. This decision highlights the court’s commitment to balancing judicial process with individual liberty, particularly in cases where the investigation is complete and the accused is not yet a convicted criminal.

Category

Parent Category: Criminal Law

Child Categories:

• Bail
• Unlawful Activities (Prevention) Act, 1967
• Indian Penal Code, 1860
• National Investigation Agency Act, 2008
• Section 120B, Indian Penal Code, 1860
• Section 124A, Indian Penal Code, 1860
• Section 153A, Indian Penal Code, 1860
• Section 153B, Indian Penal Code, 1860
• Section 18, Unlawful Activities (Prevention) Act, 1967
• Section 39, Unlawful Activities (Prevention) Act, 1967

FAQ

Q: Can the Supreme Court grant bail even if a High Court has overturned a lower court’s discharge order?

A: Yes, the Supreme Court can grant bail even if it upholds a High Court’s decision to set aside a discharge order. The Court considers factors like the period of incarceration, conduct of the accused, and the stage of the proceedings.

Q: What factors does the Supreme Court consider when granting bail in such cases?

A: The Supreme Court considers factors such as the period of incarceration already served, the conduct of the accused after being released (especially if not on bail), the stage of the proceedings, and whether the purpose of detention is being served.

Q: What is the significance of the accused being a sitting member of the Legislative Assembly in this case?

A: The Supreme Court took note of the fact that the accused was a sitting member of the Legislative Assembly, indicating that he was not a flight risk and had been engaging in public service.

Q: What does it mean when the court says the matter is “at large” for fresh consideration?

A: When the court says the matter is “at large,” it means that the lower court has to reconsider the case from the point where the mistake was made. In this case, the Special Court has to conduct a fresh hearing on the framing of charges.