Court not expected to hold mini trial while examining whether prima facie case under UAPA exists: Supreme Court

While granting bail to Thwaha Fasal and Allan Shuaib, accused under the Unlawful Activities (Prevention) Act (UAPA) for having Maoist links, the Supreme Court today held that a court examining whether a prima facie case exists, is not expected to hold a “mini trial” (Thwaha Fasal v. Union of India)..The Bench of Justices Ajay Rastogi and AS Oka held,"The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence.".The Court also made some interesting observations as regards grant of bail under Section 43(D)(5) of the UAPA and the factors determining membership in a terrorist organisation..Intention to further activities of terrorist organisation an essential ingredient.The accused were charged with offences under Sections 20 (punishment for being member of terrorist gang or organisation), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA. Additionally, an offence punishable under Section 13 (punishment for unlawful activities) was also alleged against Fasal.While Fasal and Shuaib were granted bail by a Special NIA Court, the Kerala High Court set aside the same for the former while confirming the bail of the latter. Appeals were filed by the aggrieved parties before the Supreme Court.While determining whether they were entitled to bail, the Court held,"...mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with intention to further its activities. Even if an accused allegedly supports a terrorist organisation by committing acts referred in clauses (a) to (c) of subsection (1) of Section 39, he cannot be held guilty of the offence punishable under Section 39 if it is not established that the acts of support are done with intention to further the activities of a terrorist organisation. Thus, intention to further activities of a terrorist organisation is an essential ingredient of the offences punishable under Sections 38 and 39 of the 1967 Act."In the present case, the Court found that the incriminating evidence recovered from the accused did not prove that they had the intention to further the activities of the CPI (Maoist)."Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of the accused nos.1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation.".Proving a prima facie case under UAPA.The top court observed that while deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true.“If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI,” the judgment stated..While doing so, a court is not expected to conduct a mini trial or examine the merits and demerits of the evidence on record, the Bench stated..As per sub-section (1) of Section 45 of the UAPA, a court is not empowered to take cognizance of any offence under Chapters IV and VI without previous sanction of the Central government. Noting that no such sanction was granted, the Court held,"...sanction under sub-section (1) of Section 45 has not been accorded for prosecuting the accused for the offence punishable under Section 20 of the Act of 1967 and, therefore, as of today, the Special Court under NIA Act cannot take cognizance of the offence punishable under Section 20......In view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, a prima facie case of the accused being involved in the said offence is not made out at this stage...".As regards the charge against Fasal under Section 13, the Court held,"The stringent conditions for grant of bail in sub-section (5) of Section 43D will apply only to the offences punishable only under Chapters IV and VI of the 1967 Act. The offence punishable under Section 13 being a part of Chapter III will not be covered by sub-section (5) of Section 43D and therefore, it will be governed by the normal provisions for grant of bail under the Code of Criminal Procedure, 1973.".After going through the chargesheet, the Court found that at most, it can be said that the material prima facie establishes association of the accused with CPI (Maoist) and their support to the organisation. However, the Court held,"The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet. At formative young age, the accused nos.1 and 2 might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of the accused nos.1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation.".On these grounds and others, the Court confirmed the bail granted by the High Court to Shuaib and set aside the High Court order denying bail to Fasal.Senior Advocate R Basant and advocate Raghenth Basant appeared for Shuaib while Senior Advocate Jayant Muthuraj appeared for Fasal. Additional Solicitor General SV Raju represented NIA. .[Read judgment]