Anti-CAA Protests: Gauhati High Court sets aside discharge of Akhil Gogoi in UAPA case; asks NIA court to decide afresh

The Gauhati High Court on Thursday set aside a special court order that had discharged Assamese activist and Sibsagar MLA Akhil Gogoi for offences under the Unlawful Activities Prevention Act (UAPA) in relation to December 2019 protests and speeches against the Citizenship Amendment Act (CAA) and alleged links to Maoist organisations in the Chandmari case [NIA vs Akhil Gogoi and 3 ors]..A bench of Justices Suman Shyam and Malasri Nandi stated that the special National Investigation Agency court (special court) had 'travelled way beyond the level of sifting of evidence' permissible at the stage of framing charges, and its order read like that of an acquittal than discharge.It, therefore, remitted the matter back to the special court for fresh consideration on framing of charges."While exercising jurisdiction under sections 227 and 228 of the Cr.P.C the learned Special Judge has travelled way beyond the level of sifting of evidence that is permissible at the stage of charge framing and instead, has gone on to weigh the materials produced by the prosecution to record a finding on the question of guilt of the accused persons. Such a recourse, in our opinion, was neither permissible in law nor called for in the facts and circumstances of the case ... the impugned judgment has the trappings of an order of acquittal rather than an order of discharge," the High Court said..The High Court noted that the approach of the special court was erroneous in law and had a 'vitiating effect' on its ruling. The High Court further stated that the special court can shift the matter to a competent court if if finds that the stringent charges under the UAPA or sedition are not made out."We request the learned court below to conduct charge-hearing in this case as expeditiously as possible, if necessary, by conducting hearing on a day-to-day basis. Facilitating the above, both the parties are directed to appear before the learned court below on 23.02.2023," the order said.Further, since Akhil Gogoi has since been released, he shall be at liberty to move a bail application that is to be considered in accordance with law and uninfluenced by any observations of the High Court. The order would also applicable to the other accused. .Background.Gogoi and three others were booked for the offences during the anti-Citizenship Amendment Act (CAA) protests in the State.They were charged under various provisions of Unlawful Prevention Activities Act (UAPA) and for Sedition (section 124A), promoting enmity between religious groups (section 153A) and 153B (Statement against national integration) under the Indian Penal Code.The special NIA court in Guwahati had in July 2021 discharged Gogoi of all the charges against him.It was held that speeches delivered by Gogoi did not contain any incitement to violence. The special court had gone on to the extent of stating that the speeches made by Gogoi far from inciting violence, in fact exhorted people not to resort to violence.The special court had underscored that temporary blockades/protests without incitement to violence would not constitute a terrorist act under Section 15 of UAPA.The three co-accused (Dhirjya Konwar, Manas Konwar and Bittu Sonowal) in the case had also been discharged by the court.Pertinently, the special court had observed that as per Section 15 of UAPA, for an act to constitute a terrorist act, requisite intention is necessary. However, as per the material available on record, none of the speeches delivered by Gogoi contain any incitement to violence, the Court said.The court had found Gogoi had made no imputations prejudicial to unity and integrity of India or national integration. Further, nothing personally or vicariously had linked Gogoi to acts of vandalism observed during the protests..Before High Court.The counsel for the NIA, Advocate General (AG) Devajit Lon Saikia, argued before the High Court that the lower court's ruling went against the principles of natural justice as the prosecution had not been granted a fair opportunity to present its case. The AG added that even an additional chargesheet was submitted during the trial and it could not have been said that there was no material on record. The counsel for Gogoi, Senior Advocate Kamal Nayan Choudhury, argued that his client has always refrained from calls of violence. He added that the protests and subsequent agitations were spontaneous incidents. The counsel for the co-accused, advocate S Borthakur, supported these submissions. The High Court at the outset said that, in view of the voluminous written submissions of the co-accused, the trial court ought to have given more time to the NIA to make their case. It, thus, found force in Saikia's submissions. "At the stage of framing of charge the Judge is not required to meticulously sift the materials on record and come to a conclusion as regards the culpability of the accused persons but is merely required to consider as to whether, the facts emerging from the record placed before the court makes out a prima-facie case and raises a strong suspicion so as to presume that there is a probability that the accused persons have committed the offence charged by the prosecution," the High Court said.Pertinently, it held that provisos of the UAPA make it clear that to maintain a charge brought under Section 15, it is not necessary to make a case that an accused is a terrorist organisation's member. "What must be shown is that the accused persons have committed a terrorist act by resorting to any of the means included in section 15 of the UA(P) Act. Once it is found that the record discloses facts which prima facie indicate that there are ingredients of section 15 r/w 2(l) of the UA(P) Act than it would be incumbent upon the Special Court to frame charge against the accused," the High Court said.It also said that the NIA court's findings including that Gogoi's remarks did not reveal any intention of fomenting violence, did not explain whether the same would still come within the meaning of Section 2(l) read with Section 15 of the UAPA. "The Judge was not supposed to hold a mini trial by resorting to meticulous sifting of evidence so as to form an opinion on the culpability of the accused but was required to only consider, on an assessment of the record placed before him, if there was sufficient ground to proceed against the accused persons. At that stage, the court was also not to be concerned with the question of conviction of the accused persons," the High Court underscored. .Protesting against the CAA is a constitutional right, the High Curt conceded. However, the prosecution's case is that it turned violent in many places, the Court said."The fact however, remains that the prosecution is relying upon the record to show that the protests and agitations resorted to by the accused persons during the relevant time, in some places, had turned violent. They have also relied upon the record to prima-facie show that there were calls for economic blockade and incidents of violence leading to destruction of public properties."The appeal was, therefore, allowed. [Read Judgment]