Bail – If Case Diary And Other Materials Disclose Prima Facie Case Then Bar Under Proviso To Section 43D(5) Of UAPA Will Be Attracted: Chhattisgarh HC

It is imperative to mention right at the outset that in a latest ruling, the Chhattisgarh High Court has as recently as on December 20, 2019 in Abhay Nayak v. State of Chhattisgarh in CRA No. 1213 of 2019 held quite explicitly that on reading the case diary or any other material placed on record, if a prima facie case is made out against the accused, then the proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 will get attracted and the accused shall not be enlarged on bail. This is primarily because doing anything which goes against the supreme national interests and foments terrorism in any manner cannot be lightly dismissed. It has to be taken most seriously and this alone explains why in such cases bail is not granted!

To start with, this notable judgment authored by Justice Prashant Kumar Mishra for himself and Justice Gautam Chourdiya sets the ball rolling by first and foremost observing in para 1 that, “These three connected appeals under Section 21 (4) of the National Investigation Agency Act, 2008 (for short ‘the NIA Act’) would call in question three separate orders passed by the trial Court (NIA Court) rejecting the appellant’s prayer for his release on bail under Section 439 of the Cr.P.C.”

To recapitulate, it is then pointed out in para 3 that, “The prosecution case, in brief, is that on 28-1-2017 an information was received by the concerned police that on the road between village Bastanar-Dankapara towards village Kandoli a banner has been put on along with pamphlets containing anti national contents. On receipt of the information the team of a Kodenar police led by the Station House Officer reached to the place and found a banner and anti national contents and few naxal pamphlets written in English propagating naxal movement. When the near by places were searched the police team found an explosive like material and few wires, which were further dug out with proper security. On this search a 7 kg Tiffin Bomb with 20 meters long wire and pamphlets were found. The pamphlets were having signature of ‘Vikalp’ as Spokesperson, Dandakaranya Special Zonal Committee CPI (Maoist) and Abhya as Spokesperson, Central Committee CPI (Maoist). This organisation has been banned by the Government of Chhattisgarh. Dehati Nalsi was recorded and on return the subject crime was registered at Police Station Kodenar primarily under Section 120-B of the IPC; Sections 4 & 5 of the Explosive Substances Act, 1908; and Sections 38 & 39 (2) of the Unlawful Activities (Prevention) Act.”

To be sure, para 4 then states that, “During further investigation, it came to the knowledge that the Police Station Darbha has also registered Cr. No.7/2017 and seized pamphlets and literatures containing propagation of naxal movement. The Investigating Officer found email ID and mobile number written over the seized articles, which were further investigated on which one person named ‘Abhay Nayak, R/o Bangalore’ was suspected as a person who has committed the offence.”

Going forward, it is then elaborated upon in para 5 that, “When the police team went to Bangalore (Karnataka) it got information that the appellant is not available in the country, but is travelling abroad with unknown location. Thereafter, Bastar Police issued Look Out Circular. The Immigration Bureau, New Delhi, informed the Superintendent of Police, Bastar that the appellant has been taken into custody. He was enquired by Bastar Police at Delhi and thereafter, upon his consent, Laptop, Mobile, Hard Disk, Pen Drive, etc. were recovered and brought to Bastar for further investigation. In his confessional statement the appellant admitted that for propagating naxal activities he acts as a Blogger and Spokesman via its Blog and Social Media sites i.e. Twitter, Google+, Yahoo, etc. to increase urban naxal cadre and influence urban youths. The appellant was arrested on 1-6-2018 and his residence was searched. The appellant was thereafter searched for two other offences.”

After hearing both the sides, it is then observed in para 10 that, “A perusal of the material available in the case diaries would reveal that the hand written diary seized from the residence of the appellant containing objectionable and anti national contents about the Indian Police and Para Military Force was sent to the State Examiner of Questioned Document, Government of Chhattisgarh (Hand Writing Expert) on 23-6-2018. The Hand Writing Expert’s report received by the police on 30-6-2018 mentions that all the writings have been written by one and the same person. Diary also reveals that when the appellant’s blog was data analysed by the Cyber Police Team of Bastar, the appellant was found to have officially created ‘CPI Maoist Naxalite’ blog and continued blogging on the site. Thereafter, he wrote his blogs as ‘abhay naxal revolution’, to hide his overtly and expressly Maoist connection. The appellant was also found to use fake ID number, proxy server and TOR to run his blog, which he did to hide his identity from the Government surveillance. The blog posts and proxies have been annexed with the return filed by the State.”

What’s more, it is then also pointed out in para 11 that, “Record also contains material that on thorough examination of appellant’s e-mail ID, after seeking permission from the Special Court, Jagdalpur, various folders with naxal contents and anti national contents including press release, propaganda and audio video attachments having anti national and provocative contents were found. Mail from superior naxal cadres like Vikalp and Gudsa Usendi and connection with RDF (Revolutionary Democratic Front) and other anti national organization was also found. The scrutiny also revealed that the appellant is working with Rona Wilson, G.N. Saibaba, etc.”

Not stopping here, it is then more damningly also pointed out in para 12 that, “The data analysis also found that the appellant tried to contact other naxal sympathizers including foreigners and journalists for arranging interview with superior naxal cadres either directly or through virtual media. He has been visiting foreign countries for last one year to promote the naxal ideology and improve naxal movement in India. The investigating police have also found that appellant’s blog post ‘’ is a mirror website of ‘naxalrevolution-lal salam’, which is totally a Maoist social networking platform.”

More significantly, the Chhattisgarh High Court Bench comprising of Justice Prashant Kumar Mishra and Justice Gautam Chourdiya then rightly holds that, “The law is, thus settled that while considering the prayer for grant of bail the material collected by the prosecution thus far need not be discarded nor its admissibility or otherwise is to be considered at this stage. If the case diary and other materials disclosed that the accusation against the accused is, prima facie, true, the bar under the proviso to sub-section (5) of Section 43D of the Unlawful Activities (Prevention) Act, 1967 would be attracted.”

Moving on, it is then observed in para 16 that, “In the case at hand, there is material collected by the Investigating Officer which furnishes reasonable ground for believing that the accusation against the appellant is, prima facie, true. Thus, no case for inferring with the trial Court’s order is made out.”

Finally, this commendable and laudable judgment concludes in para 17 wherein it is observed that, “As a sequel, all the criminal appeals, sands substratum, are liable to be and are hereby dismissed.” Very rightly so!

No doubt, it is a very well written judgment and a well concluded judgment. It rightly placed reliance on National Investigation Agency v Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein the Apex Court had observed that, “The totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analyzing individual pieces of evidence or circumstance.” Support to Naxal movement which is a violent and committed to  terrorism in order to overthrow democracy in India cannot be justified under any circumstances! The UAPA Act rightly ensures that those accused of promoting Naxal ideology are not granted bail! This is what the Chhattisgarh High Court too has ensured in this latest, landmark and extremely laudable case also! Very rightly so! Naxal violence brooks no tolerance and there has to be no compromise on this at any cost and under no circumstances!

Sanjeev Sirohi