Supreme Court Grants Bail in UAPA Case: Thwaha Fasal vs. Union of India (2021)

Date of the Judgment: 28 October 2021

Citation: 2021 INSC 748

Judges: Justice Ajay Rastogi and Justice Abhay S. Oka

Can mere possession of literature related to a banned organization and association with its members be sufficient to deny bail under the stringent provisions of the Unlawful Activities (Prevention) Act (UAPA)? The Supreme Court of India recently addressed this critical question in the case of Thwaha Fasal vs. Union of India and Union of India vs. Allan Shuaib. The court examined the extent to which the stringent bail provisions under the UAPA should be applied, particularly when the accused are charged under Sections 38 and 39 of the UAPA. The judgment was delivered by a two-judge bench comprising Justice Ajay Rastogi and Justice Abhay S. Oka, with Justice Oka authoring the opinion.

Case Background

On November 1, 2019, the Sub-Inspector of Police at Pantheerankavu Police Station in Kozhikode, Kerala, apprehended Thwaha Fasal and Allan Shuaib along with another individual who absconded. The police found the three in front of a laboratory under suspicious circumstances. Thwaha Fasal was carrying a red plastic file, and Allan Shuaib had a shoulder bag. Upon searching, the police seized several items from their possession, leading to the registration of a First Information Report (FIR) against them. The FIR alleged that Thwaha Fasal and Allan Shuaib were members of the Communist Party of India (Maoist) [CPI (Maoist)], a banned terrorist organization. Initially, the case was registered by the local police, but later, the investigation was transferred to the National Investigation Agency (NIA).

The NIA filed a charge sheet against Thwaha Fasal and Allan Shuaib for offenses under Sections 38 and 39 of the UAPA and Section 120-B of the Indian Penal Code (IPC). Additionally, Thwaha Fasal was charged under Section 13 of the UAPA. The accused had previously been denied bail, which was upheld by the High Court. However, after the charge sheet was filed, the Special Court granted them bail. The Union of India appealed this decision, and the High Court set aside the bail granted to Thwaha Fasal while confirming the bail granted to Allan Shuaib. This led to the present appeals before the Supreme Court.

Timeline

Course of Proceedings

The case began with the registration of an FIR at Pantheerankavu Police Station, Kozhikode, Kerala. The investigation was subsequently transferred to the NIA. The accused, Thwaha Fasal and Allan Shuaib, were initially denied bail by the Special Court, a decision that was upheld by the High Court. After the NIA filed its charge sheet, the accused filed fresh bail applications. The Special Court granted bail to both accused. The Union of India appealed this order to the High Court. The High Court partly allowed the appeal, setting aside the bail granted to Thwaha Fasal while confirming the bail granted to Allan Shuaib. This led to the appeals before the Supreme Court: Thwaha Fasal appealed against the cancellation of his bail, and the Union of India appealed against the confirmation of bail for Allan Shuaib.

Legal Framework

The judgment primarily revolves around the interpretation and application of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The key provisions discussed are:

• Section 2(m): Defines “terrorist organization” as an organization listed in the First Schedule of the UAPA. CPI (Maoist) is listed at Item No. 34 in the First Schedule.
• Section 13: Deals with punishment for unlawful activities. It states, “Whoever— (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.”
• Section 15: Defines “terrorist act”. It states, “Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country… commits a terrorist act.”
• Section 20: Specifies punishment for being a member of a terrorist gang or organization involved in a terrorist act. It states, “Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.”
• Section 38: Addresses offenses related to membership of a terrorist organization. It states, “(1) A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation.”
• Section 39: Deals with offenses related to support given to a terrorist organization. It states, “(1) A person commits the offence relating to support given to a terrorist organisation,— (a) who, with intention to further the activity of a terrorist organisation, invites support for the terrorist organization; and (ii) the support is not or is not restricted to provide money or other property within the meaning of section 40…”
• Section 43D(5): Contains stringent conditions for granting bail to individuals accused of offenses under Chapters IV and VI of the UAPA, stating, “no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”
• Section 45: Mandates prior sanction from the Central Government for taking cognizance of offenses under Chapters IV and VI of the UAPA. It states, “(1) No court shall take cognizance of any offence— (a) under Chapter III, other than section 25; or (b) under Chapter IV or Chapter VI, except with the previous sanction of the Central Government or, as the case may be, the State Government.”

The Supreme Court emphasized that the offenses under Sections 38 and 39 require a specific intention to further the activities of a terrorist organization. The court also clarified that the stringent bail provisions under Section 43D(5) apply only to offenses under Chapters IV and VI of the UAPA, not to offenses under Chapter III, such as Section 13.

Arguments

Submissions on behalf of Thwaha Fasal (Accused No. 2):

• The FIR was registered under Sections 20, 38, and 39 of the UAPA, but the charge sheet did not invoke Section 20. Section 20 applies to members of a terrorist gang or organization involved in a terrorist act. The maximum punishment under Section 20 is life imprisonment, while Sections 38 and 39 carry a maximum of 10 years.
• Section 13 of the UAPA, which carries a maximum punishment of 5 years, was applied to Thwaha Fasal. The stringent bail provisions under Section 43D(5) apply only to offenses under Chapters IV and VI of the UAPA, not to Section 13, which falls under Chapter III.
• The materials seized from Thwaha Fasal included books on caste issues in India and organizational democracy. The items seized from his house were mostly documents, along with two red banners supporting the freedom struggle of Jammu and Kashmir.
• Sections 38 and 39 of the UAPA require an intention to further the activities of a terrorist organization. The charge sheet lacks evidence to show such intention on the part of Thwaha Fasal.
• The Special Court correctly considered the materials and concluded that there was no prima facie case showing an intention to encourage or facilitate terrorist activities. The High Court did not provide reasons to disturb this finding.
• Reliance was placed on People’s Union for Civil Liberties v. Union of India [(2004) 9 SCC 580], where the Supreme Court held that Sections 20, 21, and 22 of the Prevention of Terrorism Act, 2002 (POTA) require an intention to further or encourage terrorist activity.
• Reliance was also placed on Arup Bhuyan v. State of Assam [(2011) 3 SCC 377], stating that offenses under Sections 38 and 39 require active membership in a terrorist organization, though this decision has been referred to a larger bench.
• The statutory embargo under Section 43D(5) of the UAPA does not oust the jurisdiction of a Constitutional Court to grant bail on grounds of violation of fundamental rights, as held in Union of India v. K.A. Najeeb [(2021) 3 SCC 713].
• The conditions for bail under the UAPA are less stringent than those under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The UAPA only requires the court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie not made out.
• Even by the tests laid down in National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 111], Thwaha Fasal is entitled to bail. He has been in custody for over 572 days, and the trial is unlikely to conclude soon.

Submissions on behalf of the Union of India:

• CPI (Maoist) is a listed terrorist organization under the UAPA.
• During the search of Thwaha Fasal’s house, he shouted slogans such as “Inquilab Zindabad” and “Maoism Zindabad.” Two red CPI (Maoist) banners were recovered, calling for support for the independence of Kashmir.
• A notebook containing minutes of a meeting held on September 15, 2019, and soft copies of CPI (Maoist) news bulletins were recovered from Thwaha Fasal.
• The materials found indicate that Thwaha Fasal is intimately connected with the activities of CPI (Maoist), and his intention to further the activities of the terrorist organization can be inferred.
• Even if Section 20 was not applied, the Special Court can disagree with the police report and issue process for an offense not mentioned in the charge sheet, as held in State of Gujarat v. Girish Radhakrishnan Varde [(2014) 3 SCC 659].
• The prosecution can obtain sanction to prosecute for Section 20 later. The decisions in Arup Bhuyan and PUCL were in the context of TADA and POTA, respectively, not the UAPA.
• The High Court completely disregarded Section 43D(5) of the UAPA while confirming the bail granted to Allan Shuaib.
• The Special Court ignored the law laid down in Watali and conducted a mini-trial, which is impermissible.
• The accused are active members of a terrorist organization trying to create disharmony to overthrow the government. Individual rights should subserve national interest.

Submissions on behalf of Allan Shuaib (Accused No. 1):

• The NIA never sought sanction to prosecute Allan Shuaib for the offense under Section 20 of the UAPA. The Special Court cannot take cognizance of an offense under Section 20 without prior sanction from the Central Government.
• The High Court’s finding that Allan Shuaib was taking treatment for psychiatric issues is not disputed.
• Reliance was placed on PUCL, stating that Sections 20, 21, and 22 of POTA apply only to those acting with the intent of furthering or encouraging terrorist activities. The amendments to the UAPA included the intention to further the activities of terrorist organizations in Sections 38 and 39.
• The Court cannot interfere with an order granting bail unless the order suffers from a non-application of mind or is not supported by a prima facie view of the evidence, as held in Mahipal v. Rajesh Kumar alias Polia [(2020) 2 SCC 118].
• There is no possibility of the Special Court framing charges as the Forensic Science Laboratory (FSL) report is still pending.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court considered the following key issues:

1. Whether the High Court was correct in setting aside the order of the Special Court granting bail to Thwaha Fasal.
2. Whether the High Court was correct in confirming the order of the Special Court granting bail to Allan Shuaib.
3. Whether the materials forming part of the charge sheet show a prima facie case against the accused for offenses under Sections 38 and 39 of the UAPA.
4. Whether the stringent conditions for bail under Section 43D(5) of the UAPA were correctly applied by the High Court.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

The Court also considered the following legal provisions:

• Section 2(m) of the UAPA: Definition of “terrorist organization”.
• Section 13 of the UAPA: Punishment for unlawful activities.
• Section 15 of the UAPA: Definition of “terrorist act”.
• Section 20 of the UAPA: Punishment for being a member of a terrorist gang or organization involved in a terrorist act.
• Section 38 of the UAPA: Offence relating to membership of a terrorist organization.
• Section 39 of the UAPA: Offence relating to support given to a terrorist organization.
• Section 43D(5) of the UAPA: Stringent conditions for granting bail.
• Section 45 of the UAPA: Requirement of prior sanction for taking cognizance of offenses.

Judgment

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

How each authority was viewed by the Court?

• People’s Union for Civil Liberties v. Union of India [(2004) 9 SCC 580]: The Court followed the principle that intention to further or encourage terrorist activity is necessary for offenses related to terrorism.
• Arup Bhuyan v. State of Assam [(2011) 3 SCC 377]: The Court acknowledged this decision but noted it has been referred to a larger bench.
• Union of India v. K.A. Najeeb [(2021) 3 SCC 713]: The Court reiterated that the statutory embargo under Section 43D(5) does not prevent a Constitutional Court from granting bail on grounds of violation of fundamental rights.
• National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 111]: The Court applied the guidelines from this case for assessing bail petitions under Section 43D(5), emphasizing the need for a prima facie true accusation.
• State of Gujarat v. Girish Radhakrishnan Varde [(2014) 3 SCC 659]: The Court did not find this case relevant for the issue of bail.
• Mahipal v. Rajesh Kumar alias Polia [(2020) 2 SCC 118]: The Court acknowledged the principle that appellate courts should not interfere with bail orders unless there is a non-application of mind.

The Supreme Court allowed the appeal of Thwaha Fasal and restored the bail granted to him by the Special Court. The Court dismissed the appeal of the Union of India and confirmed the bail granted to Allan Shuaib. The Court clarified that its observations were only for the purpose of considering bail applications and should not influence the Special Court during the framing of charges or the trial.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Lack of Intention: The court emphasized that Sections 38 and 39 of the UAPA require a specific intention to further the activities of a terrorist organization. The charge sheet did not provide sufficient evidence to establish this intention.
• Stringent Bail Provisions: The court clarified that the stringent bail provisions of Section 43D(5) of the UAPA apply only to offenses under Chapters IV and VI, not to offenses under Chapter III like Section 13.
• Prima Facie Case: The court found that the materials presented in the charge sheet did not establish a prima facie case against the accused for offenses under Sections 38 and 39 of the UAPA.
• Constitutional Rights: The court reiterated that the stringent restrictions under Section 43D(5) do not negate the power of a Constitutional Court to grant bail in cases of violation of fundamental rights.
• Personal Circumstances: The court considered the personal circumstances of the accused, including Allan Shuaib’s psychological condition and the fact that both were young and had been in custody for a considerable period.
• Trial Delay: The court noted that the trial was unlikely to conclude soon, given the number of witnesses and the fact that charges had not been framed yet.

The court’s reasoning focused on ensuring that the stringent provisions of the UAPA are not applied indiscriminately and that personal liberty is not curtailed without sufficient evidence of criminal intent.

Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio

The Supreme Court’s decision was primarily driven by legal considerations (70%), focusing on the interpretation of the UAPA and the requirements for establishing a prima facie case. The factual aspects of the case (30%) were considered to assess the specific circumstances and evidence presented against the accused.

Flowchart of the Case

Conclusion

The Supreme Court’s judgment in the case of Thwaha Fasal vs. Union of India and Union of India vs. Allan Shuaib is significant for several reasons. It underscores the importance of establishing a specific intention to further the activities of a terrorist organization when prosecuting individuals under Sections 38 and 39 of the UAPA. The court clarified that mere association with a banned organization or possession of related literature is insufficient to justify denial of bail under the stringent provisions of the UAPA. The judgment also highlights the need for a prima facie true accusation before applying the stringent bail conditions under Section 43D(5) of the UAPA. This decision serves as a reminder that while the UAPA is a powerful tool to combat terrorism, it must be applied judiciously and with due regard to the fundamental rights of individuals. The court’s emphasis on the need for a clear intention to further terrorist activities ensures that the UAPA is not misused to target individuals based on mere suspicion or association.

Furthermore, the case reiterates the principle that the statutory embargo under Section 43D(5) of the UAPA does not oust the jurisdiction of a Constitutional Court to grant bail on grounds of violation of fundamental rights. This ensures that the judiciary retains its role as a protector of individual liberties, even in cases involving serious national security concerns. The judgment also underscores the importance of considering the personal circumstances of the accused and the potential delay in the trial process when deciding on bail applications. By restoring the bail to Thwaha Fasal and confirming the bail to Allan Shuaib, the Supreme Court has reinforced the principle that personal liberty must be protected unless there is a clear and compelling reason to curtail it.