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Thwaha Fasal Vs Union Of India: Mere Association With A Terrorist Organisation As A Member Or Otherwise Will Not Be Sufficient To Attract The Offence U/S38/39 Of UAPA Unless The Association Is With Intention To Further Its Activities

Prahalad B ,
  06 November 2021       Share Bookmark

Court :
Supreme Court
Brief :

Citation :
Criminal Appeal No. 1302 of 2021

Date of Judgement:
28 October 2021

Coram:
Justice Ajay Rastogi
Justice Abhay S. Oka

Parties:
Appellant – Thwaha Fasal
Respondent – Union of India

Subject

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.

Legal Provisions

  • Section 2(m) of the Unlawful Activities (Prevention) Act, 1967 - “terrorist organisation” means an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed.
  • Section 15 of the Unlawful Activities (Prevention) Act, 1967 – Terrorist acts.
  • Section 20 of the Unlawful Activities (Prevention) Act, 1967 - 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 of the Unlawful Activities (Prevention) Act, 1967 - Offence relating to membership of a terrorist organisation.
  • Section 39 of the Unlawful Activities (Prevention) Act, 1967 - Offence relating to support given to a terrorist organisation.
  • Section 43D of the Unlawful Activities (Prevention) Act, 1967 - Modified application of certain provisions of the Code.

Overview

  • The complainant being the Sub-Inspector saw suspicious activities of 3 accused persons. One of them ran away as he approached them. Possessions of accused 1 having a shoulder bag and accused 2 having a plastic file were seized. An FIR was filed under sections 10, 38, 39 of UAPA alleging that they were members of the banned organisation Communist Party of India (Maoist) which is a terrorist organisation under the first schedule of the Act.
  • The Government, by an order, granted sanction to prosecute accused 1 for offences under sections 38 and 39 and accused 2 under Sections 13,38 and 39 of UAPA.
  • The bail applications of the accused persons were allowed by the Special Court. Aggrieved by this, the Union of India appealed before the High Court. The High Court partly allowed the appeal by setting aside the bail of accused 2 and confirmed the bail of accused 1. Both the Union of India and accused 2 appealed before this court.
  • The counsel for 2nd accused contended that strict provisions for granting of bail under Section 43D are only applicable for persons accused under Chapter IV and VI of the Act. Section 13 comes under Chapter III and offences under Section 38 and 39 stringent provisions should be applied for granting bail.
  • It was further contended that even if possessions seized from the accused were relating to meeting and activities of such organisation, Sections 38 and 39 are not applicable. Section 38 and 39 are attracted only when association with a banned organisation is done with an intention to further the activities of the organisation. In the FIR filed, no such incriminating material was found.
  • It was also submitted that the 2nd accused was in custody for 572 days and still 92 witnesses are to be examined and charges are yet to be framed by the Special Court. Hence, considering the above situation, the trial is not likely to be concluded in near future.
  • The Additional Solicitor General opposing the appeal contended by pointing out that when the house of the accused was searched and the accused shouted slogans such as Inquilab Zindabad, Maoism Zindabad, Naxalbari Zindabad etc. It was also submitted that two banners were found calling people to fight for the independence of Kashmir. The seized items and the behaviour of the accused amounted to inciting rebellion and creating disharmony in the society. It was further submitted that a notebook containing minutes of the meeting of the organisation, news bulletin of the organisation, future roadmap of the organisation, digital device containing military strategy of the organisation were also seized. Hence, the activities of the accused amounted to inciting public disorder and rebellion against the state.
  • Considering materials regarding minutes of the meeting of the organisation were seized, the accused had active part in the activities of the organisation and the prima facie case of the accused to further the activities of a terrorist organisation is established.
  • It was also contended that the High Court, while confirming the order of bail for 1st accused, had not considered Section 43D(5).
  • The counsel for the 1st accused relying upon Mahipal V. Rajesh Kumar alias Polia, it was contended that an order granting bail cannot unless suffers of non-application of mind or is not given in view of prima facie evidence before the court. He also submitted that sanction was taken for prosecuting the accused under Section 20 the Act. Under Section 45, a Special Court cannot take cognizance of an offence under section 20 without prior sanction of the central government.

Issue

  • Whether there was any prima facie case shown in chargesheet to show that the accused persons were associated with the terrorist organisation to further the organisation’s activities?
  • Whether stringent provisions of 43D are required for the offences charged?

Judgement Analysis

  • The court observed that offence under Section 20 would not be attracted unless the organisation with which the person is associated engaged in terrorist activity as provided under Section 15 of the Act. Section 38 will be attracted when the accused is associated with the organisation with an intention to further its activities. Hence, mens rea must be shown.
  • This court also observed that even if the accused supports a terrorist organisation by committing actions mentioned under Section 39, he cannot be held punishable of offence under Section 39 if it is not shown that such association was done for furthering the activities of the organisation. Therefore, intention to further the activities of such organisation is a significant essential for an offence under Section 38 and 39 of the Act.
  • It was also held that as Section 13 of the Act does not come under Chapter IV or VI.Stringent provisions of Section 43D shall not apply and provisions of the Code of Criminal Procedure for bail shall apply. This embargo under Section 43D shall not apply when the court, after perusing the evidence, the court is convinced that the prima facie case is not shown. However, while considering the issue of a prima facie case in a bail application, it shall not dwell on the merits of the evidence.
  • The court also pointed out that the NIA was only granted sanction for prosecuting for offence under Section 38 and 39 and not Section 20. Therefore, the Special Court does not have power to take cognizance of the case for offences punishable under Section 20 of the Act without prior sanction.
  • Relying upon Union of India V. K.A. Najeeb (2021), the court held that the restriction under Section 43D does not restrict a Constitutional Court to grant bail.
  • The court held that the chargesheet does not show any prima facie case that the accused person’s intention to further the activities of the organisation.
  • The chargesheet also alleged that the accused raised funds for the banned organisation. The court held that this was a separate offence under the Act, which is not alleged here.
  • This court after considering the evidence and offences alleged in the chargesheet, held that there was no prima facie case proved for offences under Section 38 and 39 of the Act.
  • The appeal of 2nd accused was allowed. The High Court setting aside the order of the bail of the Special Court was quashed.

Conclusion

Mere association with a terrorist organisation will not per se attract the offence under Section 38 and 39 of UAPA unless the association is with intention tofurther its activities.

Click here to download the original copy of the judgement

Questions
1. Which section in the UAPA deals with the offence of raising fund for a terrorist organisation?
2. Which section deals with the offence relating to membership of a terrorist organisation?

 
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