Kerala High Court canceled Bail Granted To Thwaha Fasal in UAPA Case

The two students were arrested in November 2019 by the Kerala police under the Unlawful Activities Prevention Act, alleging that they aided barred Maoist groups

UAPA

Kerala: On Monday, the Kerala High Court cancelled the order passed by Kochi’s Special NIA Court to grant bail to Thwaha Fasal in a UAPA case for alleged Maoist links.

However, the High Court did not revoke the bail granted in November 2019 to Allan Shuhaib, who was also arrested along with Thwaha.

The appeal lodged by the National Investigation Agency against the September 9 order passed by the Special NIA Court, Kochi, granting bail to Thwaha, a student of journalism, was permitted by a division bench consisting of Justices A Hariprasad and K Haripal. The High Court claimed that, given his young age and also his different degree of involvement, it did not interfere with the bail granted to Allan Shuhaib at the moment.

Thwaha has been ordered by the High Court to surrender before the trial court. The HC also issued the NIA Court an order to conclude the trial within one year. After the full copy of the HC judgment is issued, the reasons cited for cancelling the bail will be available.

The High Court has also set aside the trial court’s conclusion that no prima facie case was brought against the defendant.

In November 2019, they were arrested by the Kerala police under the Unlawful Activities Prevention Act, alleging that they aided barred Maoist groups that were declared as terrorist organizations. Later on, the NIA took over the situation.

The NIA court granted them bail in September last year, almost ten months after their arrest, noting that the National Investigation Agency had failed to create a prima facie case against the accused under the Unlawful Activities Prevention Act (UAPA), 1967.

Books, pamphlets, placards, diary notes, etc. confiscated from the accused were cited by the national agency to say that they were followers of Maoist ideology. Offenses pertaining to Sections 38 and 39 of the UAPA, which deal with and support associations with a terrorist group with a view to furthering its operations, Section 13 of the UAPA (punishment for unlawful activity) and 120B of the Indian Penal Code (criminal conspiracy) were invoked against them.

The NIA Court noted that the notices, pamphlets, posters, etc. confiscated from the accused related to “burning social and political issues” such as calling for the implementation of the report of the Gadgil Committee for the Security of the Western Ghats, condemnation of Maoist encounter killings, protests against police atrocities, repeal of the special status of J&K, etc. The programs and activities projected by the prosecution were public protests related to current issues, the court noted.

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The right to protest is a right protected by the constitution. It is well known that “government established by law” must be separated from individuals engaged in administration for the time being. A protest against government policies and decisions, even if a wrong cause is wrong, may not be termed as sedition or a deliberate act to promote cession or secession,” the court noted.”

Furthermore, the Court noted that the mere possession of books on Communist philosophy, Maoism, class struggle, etc., shows nothing adverse against the accused. Only when there is some constructive action from the side of the accused to instigate violence does it become adverse. There is nothing prima facie to indicate any obvious act on the side of the accused in this regard, the Court said.

The Court also noted in particular that Section 20 of UAPA (which relates to membership in a prohibited organization) was dropped from the charge sheet by the NIA. The Court claimed, therefore, that even the NIA has no claim that the accused are members of Maoist organizations.

The Special Judge acknowledged that the defendants were young people with some rebellious ideas. Yet their opinions and theories have not contributed to any form of incitement to violence.

“The petitioners are young peopleThe first accused was just 19 years old at the time of the arrest. The second accused was 23 years of age. The first accused was law student. 
The second accused was journalism student. It seems that they were pro-active on both social and political topics that were controversial. These individuals are more vulnerable to extremist ideologies and that could be the explanation of why the petitioners are in touch with prohibited organizations. The court must therefore be lenient to them to some degree on the issue of granting bail, but with a strong message that the chance offered for change should not be mistaken as an opportunity to improve and be part of their relationship with the banned terrorist group. One cannot have recourse to violent methods to overawe democratically elected government or legally formed Governmental Machinery, even though people are being tempted to have recourse to such things. Let us hope that the petitioners’ parents play a positive role in enhancing the petitioners’ mental and psychological characteristics.
Observed by the NIA Judge.
Overall, the Court concluded that, at best, the facts on record showed that the defendants had a ‘leaning’ towards Maoist philosophy, but that they were not guilty of supporting or promoting terrorist acts.

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