Supreme Court: While hearing a set of two criminal appeal against the two judgments and orders of Bombay High Court, wherein bail plea of activists Vernon Gonsalves and Arun Ferreira (‘appellants’) was denied, who were accused of conspiring the Bhima Koregaon violence and were charged with offences under Sections 121, 121-A, 124-A, 153-A, 505(1)(b), 117, 120-B read with Section 34 of the Penal Code, 1860 (‘IPC’) and Sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 (‘1967 Act’), the Division Bench of Aniruddha Bose* and Sudhanshu Dhulia, JJ., allowed the appeal and directed the release of petitioners on bail on such terms and conditions the Special Court may consider fit and proper.
Background
In the matter at hand, a First Information Report (‘FIR’) was registered on 08-01-2018 with Vishrambaug Police Station, Pune, Maharashtra in relation to a programme at Shaniwar Wada, Pune held on 21-12-2017. The organisers for the event- Elgar Parishad, were activists of Kabir Kala Manch, a cultural organisation. The prosecution’s case was that there were several programmes in the event which were provocative in nature and had the effect of creating enmity between caste groups leading to violence and loss of life. There were incidents of violence, arson, and stone pelting near Bhima-Koregaon, and six members of Kabir Kala Manch and other associates were named as accused in the FIR. The appellants were not featured in the FIR, however, the scope of the investigation was subsequently expanded, thus giving rise to the impugned judgment. The appellants were initially put under house arrest when the National Investigation Agency (‘NIA’) conducted search of their residences/workplaces and subsequently the appellants were sent to judicial custody. The NIAs case was that materials were recovered from the arrested co-accused persons which showed appellants’ involvement with the Communist Party of India (Maoist) (‘CPI’). It was also alleged that the appellants played an active role in recruitment of and training for cadres of the CPI and Arun Ferreira also had role in managing finances of the CPI through Indian Association of People’s Lawyer (‘IAPL’).
Analysis and Decision
The Court categorised the acts allegedly committed by the appellants under three heads, based on the analysis of the evidence produced by the NIA against the appellants. Firstly, appellant’s association with a terrorist organisation which was made out from the various letters and witness statements. However, the Court was conscious of the fact that none of the letters were seized or recovered from the appellants, but these recoveries were alleged to be made from the co-accused. Secondly, the appellants alleged act of keeping literature which propagated violence and promoted overthrowing of a democratically elected government through armed struggle. Thirdly, so far as Arun Ferreira was concerned, some materials pointed towards handling of finances for the CPI. The formation of or association with a legal front of the banned terrorist organisation, CPI was also alleged against Arun Ferreira.
Regarding the position of the appellants vis-à-vis terrorist acts, the Court found that in none of the materials produced against the appellants, the acts specified in Section 15(1)(a) and Section 15(1)(c) of the 1967 Act can be attributed to the appellants. The Court also said that there was nothing prima facie against the appellants to establish their involvement in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so. Neither there was allegation against them of causing death of any public functionary or attempt to cause death of such functionary. Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b) of the 1967 Act. Thus, the Court opined that it cannot reasonably come to a finding that any case against the appellants under Section 15(1) (b) of 1967 Act can be held to be true. Regarding the allegation of managing and dealing with funds on Arun Ferreira under Section 17 of the 1967 Act which deals with punishment for raising funds for terrorist acts, the Court said that the same cannot be connected to any terrorist act. The Court also referred to Anand Teltumbde v. National Investigation Agency, 2022 SCC OnLine Bom 5174, wherein the Bombay High Court while granting bail to Dr. Anand Teltumbde on similar allegations and charges had referred to the same account statement which was produced against Arun Ferreira and stated that “this document is unsigned and has been recovered from the laptop one of the co-accused. Hence, at this prima facie stage it cannot be presumed that Anand T. i.e., the Appellant received Rs. 90,000/- as argued by NIA. We are afraid to state that we cannot agree with NIA’s contention”. Therefore, the Court said that the rationale applied by the Bombay High Court in Dr. Anand Teltumbde (supra), ought to apply in the case of Arun Ferreira as well.
Further, the Court added that the witness statements did not refer to any terrorist act alleged to have been committed by the appellants and the copies of the letters record only third-party response or reaction of the appellants’ activities contained in communications among different individuals. As the said letters were not recovered from the appellants, the Court said that these communications or content thereof had weak probative value or quality. That being the position, neither the provisions of Section 18 nor 18B of the 1967 Act could be invoked against the appellants, prima facie, at this stage. Moreover, the actual involvement of the appellants in any terrorist act had not surfaced from any of these communications, nor any credible case of conspiracy to commit offences enumerated under chapters IV and VI of the 1967 Act were made out. The Court also pointed out that mere participation in seminars by itself cannot constitute an offence under the bail-restricting Sections of the 1967 Act, with which the appellants were charged with.
Regarding the charges under Section 20 of the 1967 Act which provides for punishment for being member of terrorist gang or organisation, the Court said that no material was demonstrated by the NIA before the Court which established that the appellants were members of the terrorist organisation. The Court also said that Arun Ferreira’s involvement with IAPL as a frontal organisation of the CPI (Maoist) was not clearly demonstrated through any material. On the basis of the statements of the witnesses, the appellants link with the CPI (Maoist) as members was made out between the years 2002-2007, however, no evidence of continued membership after the party was classified as a terrorist organisation was brought to the notice of the Court. Therefore, the Court found that no prima facie case was made against the appellants under Section 20 of the 1967 Act, at this stage of the proceedings.
For the charges under Section 38 of the 1967 Act, the Court said that to bring the appellants within the fold of Section 38 of the 1967 Act, the prosecution ought to have prima facie establish their association with intention to further the CPI’s terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. The Court found that there were no evidences to prove the intention of the appellants to be involved in a terrorist act.
Thus, the Court said that it was unable to accept NIA’s contention that the appellants committed the offence relating to support given to a terrorist organisation.
It was also brought to the attention of the Court, that several other co-accused who were arrested during the investigation at different point of time were released by the Court and the Bombay High Court had also granted default bail to other co-accused persons in the Bhima-Koregaon violence.
The Court also noted that the charges against the appellants included commission of offences under different Sections of the 1967 Act, and that the restriction on grant of bail as contained in Section 43-D(5) of the 1967 Act would apply in their cases. However, the Court referred to Union of India v. K.A. Najeeb, (2021) 3 SCC 713, wherein it was held that “such statutory restrictions, per se, do not oust the jurisdiction of the Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution of India and it would be within the jurisdiction of the Constitutional Courts, i.e., this Court and the High Courts to relax the rigours of such provisions, where there is no likelihood of trial being completed within a reasonable time and the period of incarceration a detenue has already undergone, covers a substantial part of the prescribed sentences for the offences with which the latter has been charged”.
The Court conclusively said that juxtaposing the appellants’ case founded on Articles 14 and 21 of the Constitution of India with the allegations and considering the fact that almost five years have lapsed since the appellants were taken into custody, the appellants had made out a case for granting bail. Thus, the Court allowed the appellants appeal and aside the impugned judgment and directed that the appellants be released on bail on such terms and conditions the Special Court may consider fit and proper, if the appellants or any one of them are not wanted in respect of any other case. The Court also directed that the conditions to be imposed by the Special Court on bail shall include:
i. The appellants shall not leave the State of Maharashtra without obtaining permission from the Trial Court.
ii. Both the appellants shall surrender their passports, if they possess so, during the period they remain on bail with the Investigating Officer of the NIA.
iii. Both the appellants shall inform the Investigating Officer of the NIA, the addresses they shall reside in and shall use only one mobile phone each, during the time they remain on bail and shall inform the Investigating Officer of the NIA, their respective mobile numbers. They must ensure that their Mobile Phones remain active and charged round the clock so that they remain constantly accessible throughout the period they remain on bail.
iv. During the period the appellants remain on bail, they shall keep the location status of their mobile phones active, 24 hours a day and their phones shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the appellants’ exact location.
v. Both the appellants shall report to the Station House Officer of the Police Station within whose jurisdiction they shall reside while on bail once a week.
The Court also said that it would be open to the prosecution to seek cancellation of the bail of each or any of the defaulting appellants without any further reference to this Court, if there was any breach of any of the conditions, or any of the conditions to be imposed by the Trial Court independently and if the appellants seek to threaten or otherwise influence any of the witnesses, whether directly or indirectly.
[Vernon v. State of Maharashtra, 2023 SCC OnLine SC 885, Decided on 28-07-2023]
*Judgment Authored by: Justice Aniruddha Bose
Know Thy Judge | Supreme Court of India: Justice Aniruddha Bose
Advocates who appeared in this case :
For the petitioners: Advocate N. Sai Vinod.
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