Case BriefsHigh Courts

   

Bombay High Court: While granting bail to the Bhima Koregaon accused, Dr. Anand Teltumbde, the Division Bench comprising Milind N. Jadhav, A.S. Gadkari, JJ., held that NIA could not establish reasonable grounds for the Court to believe that the allegations and accusations against the accused are prima facie true. The Court observed,

“There is no material save and except calling upon us to presume that the word ‘brother Anand’ is a reference to the appellant and as such he is directly involved with the activities of CPI(M).”

The appellant, Dr. Anand Teltumbde was arraigned as accused No.10 in an FIR registered by National Investigation Agency (NIA) under Sections 120-B, 115, 121, 121-A, 124-A, 153, 201, 505(1)(b) and 34 of the Penal Code, 1860 (IPC) and under Sections 13, 16, 17, 18, 18-B, 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 (UAPA) regarding Bhima Koregaon incident.

Pertinently, the appellant is a renowned scholar, writer, and civil rights activist who has authored 26 books published nationally and internationally and pioneered a theoretical critique on Neoliberal Globalization vis-a-vis Dalits and other oppressed masses. At the time of his arrest, he was working at the Goa Institute of Management, as a Senior Professor.

What Happened in Bhima Koregaon?

On 31-12-2017, Bhima Koregaon Shaurya Din Prerana Abhiyan organised an event called ‘Elgaar Parishad’ in Shaniwarwada, Pune to celebrate 200th anniversary of the historic battle of Bhima Koregaon on 01-01-2018. More than 200- 250 Social organisations joined the program. During the event, mobs bearing saffron flags attacked persons travelling to and returning from Shaniwarwada Pune which resulted in large-scale violence including arson, stone pelting and it even caused death of an innocent person near Bhima Koregaon, Pune.

Allegations against the Accused

NIA alleged that the appellant is the think tank of the banned activities of the Communist Party of India (Maoist), hereinafter CPI(M), and is intellectually and ideologically connected with CPI(M). A gist of specific charges against the appellant are as follows:

a. In 2012, the appellant had attended a meet organised by Revolutionary Democratic Front (RDF), a banned organisation, and vehemently espoused the cause of reinvention of Dalit Militancy as well revolutionary resurgence under the flag of CPI(M);

b. The appellant was the General Secretary of the Committee for Protection of Democratic Rights (CPDR) and a member of Anuradha Ghandy Memorial Committee, both front organisations of CPI(M);

c. He was one of the convenors of Elgar Parishad Program and was present at the venue;

d. He attended International Conferences under the guise of academic visits to Canada, Pakistan, USA, France etc. That he used to exchange literature on ideology, training, and work strategy of CPI(M) with International Communist Organisations.

e. That he is the real elder brother of wanted accused Milind Teltumbde, CCM and Secretary of Maharashtra – Madhya Pradesh – Chhattisgarh (MMC) Zone of CPI(M). That he met his brother during his urban area visits and shared literature of Maoist ideology collected by him during International Conferences;

f. He took efforts to release one Murugan, a CPI(M) cadre from jail as well as for release of G.N. Saibaba, another convicted accused in a CPI(M) related case.

Analysis of Evidence

NIA had provided five documents and three witnesses to buttress the charges levelled against the appellant. The Court has examined each document meticulously to reach the following findings:

1st document: This letter states that the Central Committee (CC) is pleased with the progress that (Comrade Anand) has made on the Dalit campaign and it has agreed to allocate him additional funds (10L yearly) to organise International Seminars and lectures on Dalit issues. That CC has sent funds for (Comrade Anand’s) upcoming Human Rights convention in Paris while calling upon coordination with friends in America and France and reiterates to keep the fire ablaze. NIA contended that the term ‘dear Comrade Anand’ has been used for the appellant which establishes that he is an active member of CPI(M). NIA further pressed that so far as Appellant’s visit to Paris and Budapest on 09-04-2018 is concerned, he was on leave, and expenses were not incurred by the Institute and hence it is to be deduced that the expenses were borne by CPI(M).

Opinion of the Court: After reading of aforesaid letter along with the letter dated 10-08-2020 issued by the Goa Institute of Management, the Court opined that prima facie, the appellant had travelled extensively from 11-07-2016 to 05-03-2020 while on leave and being out of office on his own expenses on at least 64 occasions. Submission of NIA that contents of 1st document prima facie invoke provisions of Section 15 of the UAP Act is not acceptable and palatable when the letter is read as it is unless there is any other material to corroborate and support such a theory. The Court noted that,

“It is seen that appellant is a man of intellectual prominence in the field of Dalit ideology/movement and merely because he is the elder brother of wanted accused Milind Teltumbde who had gone underground 30 years ago to espouse the cause of CPI(M) cannot be a sole ground to indict the Appellant and link him to the activities of CPI(M).”

2nd document: The second letter is addressed by Comrade M to Comrade Surendra, which refers to ‘Comrade Anand’. The letter which is typed on the letterhead of CPI(M), Central Committee, states that ‘Comrade Anand’ has made a few good suggestions.

Opinion of the Court: There is nothing more in the letter to suggest complicity of the appellant, provided taken at the highest that the word ‘Comrade Anand’ refers to him, which is vehemently denied by the appellant. Hence, the Court held on reading the letter prima facie it cannot be presumed that the appellant is actively involved in the work of the CIP(M).

3rd document: The letter relating to fact-finding team to gauge the truth about fake encounters in Gadchiroli which is addressed by one ‘R’ to ‘Comrade Prakash’, states that “Anand has agreed to co-ordinate the whole thing”. According to NIA “Anand” denotes the involvement of the appellant which squarely falls within the provisions of Section 15 of the UPA Act.

Opinion of the Court: Prima facie reading of the letter does not establish any case against the appellant unless there is other material to show his nexus to the alleged activity.

4th document: The name ‘Anand’ appears in the letter addressed by ‘Comrade M’ to ‘Comrade Rona’ also. The relevant portion reads thus: “.……. please speak with brother Anand, inform him to send reports through Comrade Manoj………” NIA emphasized that ‘brother Anand’ appearing in this letter addressed by ‘Comrade M’ (Milind Teltumbde, the wanted accused and younger brother of Appellant) clearly drives home the point that it is none other than Appellant.

Opinion of the Court: The Court opined that prima facie, reading of the letter, does not indicate any role of the appellant, especially when the letter has not been recovered and seized from him. The Court observed that even assuming at the highest that reference in this letter i.e., ‘brother Anand’ is to the appellant himself, the prosecution still has to show the nexus and link of the appellant with the present crime or any specific overt act. The Court expressed,

This letter refers to names of 17 persons in all, including “brother Anand”. Some names are also with their phone numbers. Not all of these 17 persons have been indicted in the present crime. If NIA’s argument is to be accepted, then the statement/sentence referring to some of the said names appears to be more serious.”

5th document: The last document referred to and relied upon by NIA is an “account statement” which bears the heading—”Accounts2k17 PARTY FUND RECEIVED IN LAST YEAR FROM C.C.” NIA has particularly emphasised on “Anand T. === R === 90 T from Surendra (Though Milind)” part of the document. According to NIA the name Anand T. is a reference to the appellant having received Rs.90,000 from Surendra (Surendra Gadling, Accused No.3) through Milind (wanted accused and younger brother of Appellant).

Opinion of the Court: Noting the fallacy in the argument of NIA, the Court expressed that if Anand T. is the appellant himself and he received Rs.90,000, even in that case it cannot be linked to the statement in the earlier letter dated 02-01-2018 since the account statement pertains to the year 2016 and or 2017. Further, the document is unsigned and has been recovered from the laptop of one of the co-accused. Hence, at this prima facie stage, the Court cannot presume that the appellant received Rs.90,000.

Additionally, the Court observed that one such seized document which contained the list of Central Committee Members of CPI(M) group along with their details and photographs for the year 2017, suggests that the appellant is not a member of this C.C. However, at Serial No.4 one Katkam Sudarshan @ Anand @ Mahesh @ Bhaskar appears as Central Committee and Polit Bureau Member of CPI(M). Hence, the Court opined that the reference to the name ‘Anand’ can also be to this member as argued by Appellant; and prima facie, such a probability cannot be ruled out, unless there is material shown to the contrary.

Findings and Conclusion

After appreciating the material on record as well as the statements of three key witness against the appellant, the Court held that prima facie, the prosecution was unable to establish that provisions of Sections 16 and 18 can be invoked at this stage against the appellant. Hence, the Court held that on reading the chargesheet and other material on record, prima facie, it could not be inferred that the appellant has involved himself in a ‘terrorist act’. Additionally, the Court remarked,

“In the present case the offence and crime related to the Bhima Koregaon incident resulted in the death of one person. On reading the draft charges and the chargesheet qua the Appellant, we prima facie find that NIA has not investigated or made any investigation in respect of this aspect. However, it is their case that the banned terrorist organization CPI(M) used the Elgar Parishad.”

Further, considering that the appellant has no criminal antecedents, and he has been behind bars for more than two years and half, the Court opined that a case for grant of bail has been made out. Hence, the impugned order of the Special Judge, Greater Bombay dismissing the bail application of the appellant has been set aside and the appellant was directed to be released on bail on the following conditions:

a. The appellant to execute a PR bond of Rs.1,00,000 with one or more solvent local sureties in the like amount.

b. He shall not tamper with the evidence of prosecution nor influence the prosecution witnesses;

c. He shall furnish his contact numbers, both mobile and landline, and permanent residential address, before his actual release from jail, to the Investigating Officer and the Special Court before which his case is pending;

d. He shall attend the concerned police station where he resides, initially for a period of one year, once in a fortnight i.e., on every 1st and 16th of each English Calendar month and thereafter on every first Monday of the month between 10:00 a.m. to 12:00 noon the till the conclusion of trial;

e. He shall not leave the jurisdiction of the State of Maharashtra and if he desires to travel within India, he shall seek prior leave and permission of the Trial Court;

f. He shall deposit his passport held by him before his actual release from jail, with the designated Special Court.

Pertinently, on the request of the prosecution to stay the operation and implementation of this order to enable NIA to challenge it before the Supreme Court, the Court had directed that the order granting bail to the appellant will remain stayed for a period of one week.

[Anand Teltumbde v. National Investigation Agency, 2022 SCC OnLine Bom 5174, decided on 18-11-2022]


Advocates who appeared in this case :

Mr. Mihir Desai, Senior Advocate i/by Ms. Devyani Kulkarni for Appellant;

Mr. Sandesh Patil a/w. Mr. Chintan Shah, Mr. Shrikant Sonakawade and Mr. Prithviraj Gole;

Advocate for Respondent No.1 – NIA;

Ms. J.S. Lohakare, APP for Respondent No.2 – State;

Mr. Pradip Bhale, Dy. S.P. NIA present;


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In an insurance repudiation case the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., held that where the insurance policy expressly defines a term the insurance company cannot rely on Statutory interpretation of the same to repudiate the insurance claim.  

The Court reversed National Consumer Disputes Redressal Commission’s (NCDRC) judgment by which it had held that the insurance company was justified in repudiating the claim.   

Factual Backdrop  

The appellant had taken Standard Fire and Special Perils Policy from the insurance company in respect of his Engineering Workshop and Plant. The total sum assured was Rs.26,00,00,000 under the policy covering the loss on account of fire, lightning, explosion, riots, strike etc.  

As per the claim made by the appellant, after midnight of 22-03-2010, about 50­60 antisocial people with arms and ammunition entered the factory premises of the appellant and caused substantial damage to the factory, machinery, and other equipment. The mob demanded money and jobs for local people. The appellant contended that the object of the incident was to terrorise the management of the appellant and workers in the factory by forcing them to pay a ransom to the miscreants. 

The appellant lodged a regular claim with the insurance company. The surveyor assessed the loss at Rs.89,43,422 while the appellant claimed that the insurance company was liable to make an interim payment of Rs.1.5 crores.   However, the insurance company repudiated the appellant’s claim relying on the Exclusion Clause of the policy regarding loss or damage caused by the acts of terrorism.  

Findings of NCDRC  

Therefore, the appellant approached NCDRC complaining about deficiency in the service offered by the insurance company. By the impugned judgment and order, the NCDRC held that because of the “Terrorism   Damage   Exclusion   Warranty”; i.e., the Exclusion Clause, the insurance company was justified in repudiating the claim of the appellant. The NCDRC held that the damage caused to the factory and equipment of the appellant was due to an act of terrorism. 

Analysis and Findings  

The Exclusion Clause of the policy defined the act of terrorism as—“the actions can be termed as acts of terrorism provided the same are committed for political, religious, ideological or similar purposes.   The words ‘similar purposes’ will have to be construed ejusdem generis.” 

Noticeably, the repudiation of the policy was based on the Preliminary Survey Report, Investigation Report, and the Final Survey Report.   However, the Court noted that the Survey Reports could not throw any light on the question whether there was an act of terrorism, the Investigation Report did not conclusively prove that the persons involved in the incident belonged to Maoist or similar groups. Similarly, the FIR and Closure Report did not refer to acts of terrorism as defined under the Exclusion Clause, rather it showed that the police had registered a case against 105 miscreants who could not be traced. 

Therefore, the Court held that the insurance company had not discharged the burden of bringing the case within the four corners of the Exclusion Clause.  

The insurance company had argued that since the police had invoked Section 17 of the Criminal Law (Amendment) Act, 1908 against the miscreants for unlawful association, the very fact that the provisions of the Amendment Act of 1908 had been applied showed that the loss caused to the appellant was due to a terrorist act. The Court, rejecting the contention of the insurance company held, 

“When the policy itself defines the acts of terrorism in the Exclusion Clause, the terms of the policy being a concluded contract will govern the rights and liabilities of the parties.  Therefore, the parties cannot rely upon the definitions of ‘terrorism’ in various penal statutes since the Exclusion Clause contains an exhaustive definition of acts of terrorism.” 

Conclusion 

Thus, the Court concluded that the NCDRC had committed an error by applying the Exclusion Clause. The policy specifically covered the damage caused by riots or violent means. Hence, the Court held that the decision to repudiate the policy could not be sustained.  

Resultantly, the impugned order was set aside. However, noting that adjudication would have to be made on the quantum of the amount payable to the appellant after appreciating the evidence on record, including the valuation reports, the Court remanded the matter to the NCDRC for reconsideration. Further, relying on the expected damage estimated by the insurance company’s valuer, the Court directed the insurance company to deposit a sum of Rs.89,00,000 with the NCDRC with liberty to the appellant to make an application for withdrawal. 

[Narsingh Ispat Ltd. v. Oriental Insurance Co. Ltd., 2022 SCC OnLine SC 535, decided on 02-05-2022] 


*Judgment by: Justice Abhay S. Oka 


Appearance by:  

For the Appellant: Santosh Kumar, Advocate  

For the Insurance company: Santosh Paul, Senior Advocate  


Kamini Sharma, Editorial Assistant has put this report together