Bail application by an accused alleged to be an active member of the banned CPI (Maoist) and charged under the UAP Act. The court held that her role was prima facie not mere membership, sympathy or passive association, and that her case was distinguishable from that of the co-accused and from decisions granting bail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
ba304-13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.304 OF 2013
Ms.Angela Harish Sontakke .. Applicant Versus The State of Maharashtra .. Respondent
Mr.Sudeep Pasbola with Ms.Sharmila Kaushik and Ms.Susan Abraham for applicant Mrs.G.P.Mulekar, APP for State.
CORAM : S. C. DHARMADHIKARI, J. 16th April 2013.
P.C.:
on 10th April 2013 and today it is placed for passing orders.
2] The applicant has been arraigned as an accused No.1 in C.R. No.19 of 2011 registered with Anti Terrorists Squad Police Station, Kalachowki, Mumbai. She has been shown as an accused along with six others and the offences alleged are punishable under section 387, 419, 465, 467, 468, 471 read
2
ba304-13.doc
with 120-B of the Indian Penal Code read with Section 10, 13,
17, 18, 18(A), 18(B), 20, 21, 38, 39 and 40(2) of the Unlawful Activities (Prevention) Act, 1967, as amended. She came to be arrested on 25th April 2011 at Thane and is presently in judicial custody.
3] The statement of Prakash N. Patil, who is Assistant Police Inspector, ATS, Thane Unit is relied upon by Mr.Pasbola, learned Advocate appearing in support of this application. He submits that the allegation against the applicant is that she is Member of a banned organisation namely Communist Party of India (Maoist) (for short CPIM). The further allegation is that she has
been avoiding arrest and trial of several cases by adopting different names. It is submitted that the compact discs were recovered and which would show that the applicant is a member of the banned organisation. Mr.Pasbola submits that the seizure is of certain publication material and C.Ds. He invites my attention to section 10 and 13 of the Unlawful
3
ba304-13.doc
Activities (Prevention) Act, 1967 (for short the UAP Act). He submits that there is no offence committed within the meaning of this provision. The term unlawful activity has been defined and in section 2(O). My attention is also invited to sections 10, 13, 17, 18, 18(A), 18(B), 20, 21, 38 and 39 of the UAP Act. It is submitted further that this case is on par with the co-accused who have been enlarged on bail by this Court. There is no recovery of any arms or weapons and the applicant cannot be said to be conspiring to commit an offence. For all these reasons, Mr.Pasbola submits that the applicant be enlarged on bail. The apprehension that she has been involved in 20 cases is entirely misplaced and misconceived because in most of the cases, she has either been discharged or acquitted. Merely because the applicant is a sympathyasier does not mean that she is an active member or that she subscribes to the unlawful and
the terrorist activities allegedly undertaken by this CPIM in Gadchiroli district and adjoining areas. For all these reasons it
is submitted that when the offences alleged are punishable with
4
ba304-13.doc
imprisonment for 5 to 7 years, that this is a fit case for enlarging the applicant on bail.
4] Reliance is placed upon the Hon'ble Supreme Court judgements in the case of State of Kerala Vs. Raneef reported in A.I.R. 2011 S.C. 340 and in the case of Arup Bhuyan Vs. State of Assam, reported in (2011) 3 S.C.C. 377 and two orders of this Court of Hon'ble Mr. Justice A. M. Thipsay in Bail Application No.1020 of 2012 (Ms.Jyoti Babasaheb Chorge Vs. State of Maharashtra) with Bail Application No.1066 of 2012 (Ms.Sushma Hemant Ramtekke Vs. State of Maharashtra) dated 3rd October 2012 and Criminal Bail Application No.1536 of 2012 (Dhawala Rama Dhengale Vs. State of Maharashtra) with Bail Application No.1634 of 2012 (Siddharth Bhagwan Bhosale Vs. State of Maharashtra) with Bail Application No.1692 of 2012 (Mayuri Panjabrao Bhagat & Anr. Vs. State of Maharashtra) dated31st January 2013.
5
ba304-13.doc
5] The Supreme Court judgements which have been referred
to and relied upon in the aforesaid orders and judgements of this Court would go to show that the Hon'ble Supreme Court has emphasised the fact that a enactment such as the UAP Act being applied does not mean that the applicant is not entitled to be enlarged on bail. Ultimately the nature of the activities, role of each applicant and whether it is passive or active or whether the activities incite people to violence or disturb the even tempo of life has to be considered and merely because the enactment is applied does not mean that his/her release on bail cannot be directed.
6] On the other hand, Mrs.Salian, who appears on behalf of the prosecution submits that a detailed affidavit in reply has been filed. There is a distinction between the case of applicant and that of co-accused. There are twenty cases pending against the applicant. She has adopted several names and has used them for carrying on unlawful activities. She is an active
6
ba304-13.doc
member of the CPIM. In fact she is a member of their Golden Corridor Committee. She has also played active part in the activities of recruiting and bringing in the fold of the orgnisation, persons residing in urban areas. These organisations are attracting urban youths in the name of cultural and other organisations. They are trying to recruit youngsters as volunteers and workers so as to support the activities carried on in the Naxal areas. There is sufficient material to show that the applicant is involved in unlawful activities and equally the activities which are covered by section 40(B) of the UPA Act. For all these reasons and when the provisions which have been invoked are clearly attracted, then, this Court should not enlarge the applicant on bail. She has been actively promoting and supporting unlawful activities. Her support is not passive but fullfledged. There is a clear distinction, therefore, in her case with that of the co-accused. For all these reasons, the applicant be denied bail and the application be dismissed.
7
ba304-13.doc
7] What has been pointed out to me are the statements which have been recorded by the ATS Unit and others. Before referring to this material, it would be worthwhile to refer to the provisions of UAP Act. Since the applicant is charged with offences punishable under sections 10, 13, 17, 18, 18(A), 18(B), 20, 21, 38, 39 and 40(2) of the UAP Act, the scheme of the said Act needs to be referred to.
certain unlawful activities of individuals and associations and by virtue of the amendments it is also for dealing with terrorist Activities and for matters connected therewith. The preamble refers to the Resolution of the Security Council of the United Nations and the Charter which require all the States to take measures to combat international terrorism and equally the Resolutions of the Security Council of UNO resolving that the States should take action against certain terrorists and terrorist
8
ba304-13.doc
organisations, to freeze the assets and other economic resources, to prevent the entry into or the transit through their territory and prevent the direct or indirect supply, sale or transfer of arms, ammunitions to the individuals or entities listed in the Schedule to the Resolutions. For effective and proper implementation of these Resolutions and in order to make special provisions for the prevention of and for coping with terrorist activities and for matters connected therewith or incidental thereto that the Enactment has been enacted.
9] By the Amendment Act 35 of 2008, what has been pointed out is that in view of the concern and complaints expressed about the manner in which the provisions of the Prevention of Terrorism Act, 2002 (POTA) had been applied, including instances of misuse, that POTA Act was repealed in 2004. At the same time, keeping in view that India has been a front runner in the global fight against terrorism, its commitments in terms of the United Nations Security Council Resolution 1373
9
ba304-13.doc
dated 28th September 2001 and the resolve not to allow any compromise in the fight against terrorism that the UAP Act was amended to make provisions to deal with terrorism and terrorist activities. There have been significant developments at the National and International level. Terrorist incidents and activities sponsored from across the borders, in various parts of India and elsewhere, continue to cause concern. Equally, what has been noted is that further provisions are required to be made to cover various facets of terrorism and terrorist activities, including financing of terrorism, which are not fully covered in the present law and to make further provisions with the aim of strengthening the arrangements for speedy investigation, prosecution and trial of cases related to terrorism related offences and at the same time ensuring against any possible misuse of such provisions that the Amendment Act came to be enacted and brought into effect.
10] The definitions are contained in section 2. The term
10
ba304-13.doc
“Association” is defined in section 2(a) to mean any combination or body of individuals. The word “cession of a part of territory of India” is defined in section 2(d). Then the term
“terrorist act” has been defined in section 2(k) and it has the same meaning assigned to it in section 15 of the expression
“terrorism” and “terrorist” shall be construed accordingly. “Terrorist Gang” is defined in section 2(l) and “Terrorist Organisation” is defined in section 2(m). The term “unlawful
association” is defined in section 2(p) to mean as under:-
11
ba304-13.doc
Provided that nothing contained in sub-clause (ii)
shall apply to the State of Jammu and Kashmir.”
12
ba304-13.doc
(iii) which causes or is intended to cause disaffection against India;”
12] Chapter II contains provisions with regard to unlawful
association. That commences by a declaration of an association as unlawful. There is a reference which is required to be made to a Tribunal and after the declaration by a Notification under Section 3(1) of the UAP Act. The establishment and powers of the tribunal, period of operation and cancellation of notification, power to prohibit the use of funds of an unlawful association are the provision made in this chapter. Section 9 enacts procedure to be followed for disposal of application under UAP Act.
13] Chapter III is entitled “Offences and Penalties”. Section 10 provides for “Penalty for being member of an unlawful association, etc.”, and reads as under:-
“10. Penalty for being member of an unlawful association, etc. - Where an association is declared unlawful by a notification issued under section 3 which has become effective
13 ba304-13.doc
under sub-section (3) of that section -
(a) a person, who ---
(I)is and continues to be a member of such association; or
(II) takes part in meetings of such association; or
(III) contributes to, or receives or solicits any contribution for the purpose of, such association; or (IV) in any way assists the operation of such association,
Shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine; and
(b) a person, who is or continues to be a member of such association, or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property -
14 ba304-13.doc
14] Section 11 provides for penalty for dealing with funds of an unlawful association. Section 12 provides for penalty for contravention of an order made in respect of a notified place. Section 13 provides for punishmant for unlawful activities and reads as under:-
“13. Punishment for unlawful activities -
(1) Whoever –
(a) takes part in or commits, or
(b) advocates, abets, advices or incites the commission of , any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine;
(2) Whoever, in any way, assists any unlawful activity of any association declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine or with both;
(3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person
15
ba304-13.doc
authorised in this behalf by the Government of India.”
15] All offences are cognizable and that is to be found in
section 14. Then comes Chapter IV which is inserted by the Amendment Act and provides for Terrorists Activities. The Terrorists Act is defined in section 15 to mean as under:-
“15. Terrorist Act:Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in anyforeign country -
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological readioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause -
(I)death of, or injuries to, any person or persons; or (II) loss of, or damage to, or destruction of, property; or
(III) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(IV) damage or destruction of any property in India or in a foreign country used or intended to be used for the
16
ba304-13.doc
defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
Explanation – For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the official gazette by the central Government as a public functionary.”
16] Section 16 provides for punishment for terrorist act.
Section 16-A provides for punishment for making demands of
radioactive substances, nuclear devices. Section 17 provides for
punishment for raising funds for terrorist act. Section 18 provides for punishment for conspiracy and then comes section 18-A providing punishment for organising terrorist camps.
17
ba304-13.doc
Section 18-B provides for punishment for recruiting of any person or persons for terrorist act. Section 20 provides for being a member of terrorist gang or organisation. Section 21 provides for punishment for holding proceeds of terrorism and sections 38 and 39 which are falling in Chapter VI entitled “Terrorist Organisations” makes membership of a terrorist organisation punishable. Equally, support given to a terrorists organisation is an offence vide section 39. Raising funds for terrorists organisation is made an offence too.
17] Therefore, it is common ground that the Act deals with unlawful activities and provides for their prevention and by amendment also seeks to deal with terrorists activities. The unlawful activity is an activity in relation to an individual or an association and means any action taken by such individual or association whether by committing an act or by words, either spoken or written, or by signs or by visible representations or otherwise and which action is intended to support any claim to
18
ba304-13.doc
bring about on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union or which incites any individual or group of individuals to bring about such cession or secession or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India or which causes or is intended to cause disaffection against India. Unlawful association means any association which has for its object any unlawful activity or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity which is punishable under section 153-A or section 153-B of the Indian Penal Code (45 of 1860) or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity.
or likely to threaten the unity, integrity, security or sovereignty
of India or with intent to strike terror or likely to strike terror in
19
ba304-13.doc
the people or any section of the people in India or in any foreign country by using bombs or other lethal weapons within the meaning of section 15(a) and which causes or likely to cause injuries to any person or persons or loss or damage to or destruction of property or disruption of any supplies or services of the community in India or in any foreign country.
been recorded and other materials referred to in the charge sheet, it would be evident that the allegation is that the Government of India has banned CPIM by terming it as an terrorist organisation. It is termed as such and within the meaning of Chapter VI of the UAP Act. There is a Maharashtra Regional Committee of this terrorist organisation and equally there is a golder corridor committee of such organisation. The applicant who has adopted several names is a member of Maharashtra Regional Committee and also the golden corridor committee of this terrorist organisation. Upon being tipped and
20
ba304-13.doc
information provided that she is likely to come to meet some associates of the organisation at Thane, the police party laid a trap. It has been stated that this applicant is also an accused in
several serious crimes committed in Gadchiroli and Gondia districts by the very terrorist organisation. She has and equally other members of the organisation have gathered at several places and she was likely to visit Thane for planning and carrying out some terrorist act in Mumbai city. That is how, the
police party was alerted and the trap was laid. The applicant came there and upon being identified, was apprehended and
arrested. On search being carried out what is recovered is several publications and equally some forms and other material relating to the banned organisation. There are several press notes and there are several appeals made by that organisation. There are certain forms wherein details with regard to the amounts spent and expenses incurred and equally there was a diary of 2011 which was seized. The seizure included cash amount of Rs.1.50 lakhs and a camera and other items. Her
21
ba304-13.doc
identity was revealed as wife of one Milind Teltumde and it was stated that she is a member of Maharashtra State Regional Committee and Golden Corridor committee of the terrorist
organisation which is banned and that this cash amount is party fund, which she has collected. Thus, the materials reveal that she is an active member of the terrorist organisation and which organisation is carrying out several unlawful activities and the terrorist acts. The said organisation was also preparing for carrying out further such acts and as a part of planning those acts that the applicant and others had gathered at the site.
20] There are other statements which have been relied upon, including the confessional statement given by one of the persons Dhawala Kama Dhengle. According to him, he was tried to be brought within the fold of this terrorist organisation.
How he was pursuaded and by whom has been stated and his statement records role of the applicant in approaching several such people like the person making the statement. There are
22
ba304-13.doc
artists, cultural organisations, social workers and activists, including students who were tried to be brought in the fold. The meetings are referred to and the presence of the applicant at the same has been referred by the said person. The applicant was persuading all such persons to join this terrorist organisation and was informing them as to how it is necessary to become part of such organisations, if the system has to be overhauled and changed.
21] The statement of one Amarnath Chandalia who is a free
lance journalist, translator and writer, has also been relied upon
and he has stated in extenso about the activities of the terrorist
organisation as he was persuaded like the others to join the same. He visited Gadchiroli district in the State of Maharashtra
and his experience has been narrated by him in details. As to
how he decided to dis-associate himself from all such members like the applicant who are actively associated with the activities
of the banned organisation has been set out by him. He stated
23
ba304-13.doc
that Rahi is the name adopted by one Sadhana. She and one
Jyotirao @ Milind are the persons who have been active in trying to contact the urban population and that is how the prosecution alleges that the co accused and the present applicant are not similarly situated. It is not possible, according to the prosecution to hold that the role of the applicant is passive and not active. Even the learned Sessions Judge has been pursuaded to hold that the applicant is not merely a sympathiser or believer in the ideology but an active member of the terrorist outfit and banned organisation. She has with her husband actively propagating ideas and principles of the banned organisation/ outfit. The statements referred to by me have been then relied upon equally by the learned Additional Sessions Judge, who is seized of the case.
22] Since reliance is placed by Mr.Pasbola on the judgements of the Supreme Court and this Court (Thipsay, J), it would be
necessary to refer to them.
24 ba304-13.doc
23] In the case of State of Kerala (supra), the State approached the Supreme Court challenging High Court's order granting bail to respondent Dr.Raneef. Dr.Raneef was a medical practitioner in Ernakulam district in Kerala. He was arraigned as accused in Crime No.704 of 2010 alleging offences punishable under the UAP Act and IPC and Explosive Substances Act. Seven assailants came in a car and assaulted Professor Jacob of Newman college and chopped his right palm from the vicinity of his house when he was returning home after Sunday mass. The role attributed to Dr.Raneef was that he treated one of the injured assailants who was injured while Jacob's son tried to protect his father, by suturing his wound on
the back at a place 45 kms away from the scene of crime. The alleged motive for attacking Prof.Jacob was that he incorporated a question for the internal examination of B.Com paper criticizing Prophet Mohammed and Islam. Prosecution case was that Dr.Raneef gave medical aid to the wounded in
25
ba304-13.doc
pursuance of a previous plan that if any of the assailants needed medical treatment the same should be given by Dr.Raneef to the injured. It was alleged that respondent Dr.Raneef stitched the
wound on the back of the assailant which is not the job of a Dentist. Therefore, the respondent, Dr.Raneef along with other accused is a member of Popular Front of India, a Muslim organisation and was head of its medical committee. There was a seizure of certain documents, CDs. mobile phone including a book called “Jihad” from his house.
24] It is on such allegations that the Supreme Court analysed
the provisions of the Act and held that prima facie Dr.Raneef was not involved in the crime. Therefore, proviso to section 43D(5) has not been violated. There is no evidence to prove that the Peoples Front of India is a Terrorist Organisation and, therefore, the respondent cannot be penalised merely for belonging to the same. Even if the said organisation is an illegal organisation, that members of the said organisation cannot be
26
ba304-13.doc
said to be held to be automatically guilty. It is then the Supreme Court analysed the concept of membership which is passive, merely nominal in a subversive organisation and by referring to the judgements of the U.S.Courts and agreeing with them, the Supreme Court outlined the important factor namely delay in concluding the trial and dismissed the appeal of the State.
25] In the case of Arup Bhuyan Vs. State of Assam (supra),
which was an appeal arising out of a judgement and order dated 28th March 2007 of the designated court, Assam passed in
TADA Sessions Case No.13 of 1991. The appellant before the Supreme Court was alleged to be a member of United Liberation Front of Assam (ULFA) and the material produced by
the prosecution is his alleged confessional statement before the Superintendent of Police in which he is stated to have identified the house of the deceased. Since such statement is admissible
in Evidence under section 15 of the Terrorist and Disruptive
27
ba304-13.doc
Activities Act, 1987 (for short TADA), the Supreme Court held that the confessional statement could not have been relied upon and then what remains for justifying and supporting the conviction is membership of a banned organisation. Presuming that the appellant was a member of ULFA it has not been proved that he was an active member and not merely a passive member. That is how Dr.Raneef's case was relied upon.
26] In the case of Indra Das Vs. State of Assam reported in (2011) 3 SCC 380, which is also a judgement delivered by the same learned Judge Hon'ble Mr.Justice Markandey Katju, as His Lordship then was. The facts were similar to the case of Arup
Bhuyan. Apart from a confessional statement which was retracted what was urged is that the appellant was a member of banned organisation ULFA. Then, the Supreme Court applied the ratio laid down in its earlier judgements and held that a distinction has to be made between passive, nominal, sympathiser and active membership of such an organisation.
28 ba304-13.doc
27] In the cases before this Court decided by Hon'ble Mr. Justice A.M. Thipsay what was revealed was that Jyoti Chorge and Sushma Ramteke, co-accused in this case were alleged to be members of CPIM. This terrorist organisation was declared to be so by a Notification dated 22nd June 2009. The organisation was enlisted in the schedule appended to the UAP Act. Reliance was placed upon the arrest of present applicant and her connection. The applicant in this case (Angela's) statement was relied upon to urge that the bail applicant Sushma had provided the Applicant before me a room for residence. She had resided in the same along with accused No.2 Sushma. The room was searched and mobile phone, audio and video discs said to be publicity material of CPIM was found. On the information provided by accused Sadhana other coaccused Jyoti and Nandini accused Nos. 3 and 4 were arrested and they were found in possession of blue colour travel bag containing mobile handset with sim card, a battery, some
29
ba304-13.doc
literature of the CPIM. The co-accused Nandini was found in possession of cash of Rs.1,90,000/- some CDs. and a fake PAN card and some other articles. The substance, therefore, of the allegation is that the arrested accused were members of the terrorist organisation. They were fully aware of their activities and not merely associated with persons indulged in the unlawful activities. Upon such allegations, this Court perused the necessary materials, considered the scheme of the Act and held that undoubtedly the material collected indicates prima facie that the co-accused - the bail applicants in those applications were in contact or had some association with some members of admirers of CPIM. The applicant therein Sushma was staying in the same room and where the accused No.1 (applicant herein) was residing and there also the publicity materials and literature were found and seized. Therefore, the learned Single Judge observed that there are no allegations of having committed a terrorist act. The accusations of having organised terrorist camp, or having recruited any person for
30
ba304-13.doc
terrorist acts, have also not been levelled against any of those applicants before the learned single Judge. There is no material to support such allegations. There is no material even prima
facie to indicate that the applicant therein had conspired with any of the other accused to commit a terrorist act or to organise
a terrorist camp or to recruit any person for terrorist act. Therefore, the only allegation was that they were members of the terrorist organisation. It is in these circumstances that this Court analysed the provisions of UAP Act and termed some of them as drastic and relied upon the ratio of the judgements of the Supreme Court referred by me above to arrive at a conclusion that mere sympathiser or being passive member or associating for a brief moment with such activities or organisation will mean that strict or stringent provisions of the Act have to be applied and, therefore, having found no prima facie material in that regard, the applicants therein are enlarged
on bail.
31
ba304-13.doc
28] The prosecution has distinguished those cases by pointing
out that the present applicant is accused No.1. She has been arrested because the CPIM is an underground political party in
India which aims to overthrow the Government in power through people's war means. It was founded on 21st September 2004, through the merger of the People's War Group, and the Maoist Communist Centre. The merger was announced on October 14 the same year. In the merger a provisional central committee was constituted with the erstwhile People's War Group leader Muppala Lakshmana Rao @ “Ganapathi”, as General Secretary. This organisation is also referred to as Naxalites in reference to the naxalbari insurrection conducted by radical Maoists in West Bengal in 1967. The Indian Government banned this outfit under the UAP Act in June 2009. As on June 2010 the Indian government has identified 83 districts in nine states as “Naxal hit”. Currently the party has a presence in remote regions of Jharkhand, Andhra Pradesh, Bihar and tribal dominated areas in the borderlands of
32
ba304-13.doc
Chhattisgarh, Maharashtra, West Bengal and Orissa. It aims to consolidate its power in this area and establish a compact revolutionary zone from which to advance the people's war in other parts of India. At present the organisation in Maharashtra has formed area committees which form workers' unions in different names in the Urban Industrial area trying to bring industrialists lobby in difficulty. The urban members are motivated to go to rural areas for armed struggle. Smaller unit of this organisation is called “Dalam” and the same is equipped with sophisticated and modern fire arms and cadres are trained in guerilla war and that is how they target VIPs, Government officers, police and paramilitary personnel.
29] The members of the organisation work secretly and adopt several names. As far as the applicant in the present case is concerned, it has been alleged that she is wife of Milind Teltumde. The said Milind is the Secretary of the State Committee of the banned terrorist organisation CPIM. He
33
ba304-13.doc
handles their legal activities. He is wanted accused in the present case. After referring to the recovery of seized articles
what has been alleged is that during the course of investigation,
a statement was made under section 27 of the Evidence Act,
leading to the location of her hideout in a village in Pune District and there is seizure of several articles which include
materials of visits to the interior areas and forests in Gadchiroli
District. There are photographs during forest training camp, audio and video cassettes. There are mobile phones and other materials which would indicate as to how members of the
banned organisation prepared themselves. The materials that
are relied upon are referred to at page 178 to 180 of the paper
book. They reveal that there are details of training activities, training camps of the banned outfit. There are materials which
indicate as to how the police and C.R.P.F. personnel were attacked, procurement of weapons used and utilised. The statement of owners of the house were recorded and which
disclose that the applicant adopted several names and under
34
ba304-13.doc
assumed names she was residing there from January 2011 till her arrest. The witnesses have stated that the applicant was leaving the house early in the morning and rarely interacted with anyone. The statement of the co-accused and which has been criticised by Mr.Pasbola, as no material, even prima facie, to indicate involvement of the applicant, is then referred to. The statements and particularly that of Amarnath Chandalia of
Pune has been relied upon. The witness was taken to forest area for three weeks and was shown around the activities of banned organisation in details and that is how section 43D(5) has been relied upon. The details of the other statements are referred to and what has been relied upon is that the materials
would show that prima facie, the applicant controls the unlawful activities of the banned organisation. She is an active member of the banned organisation. She has been using fake names at various places in order to keep her activity secret and remained underground. She has, therefore, been arrested and there is ample material to indicate that she is guilty of the
35
ba304-13.doc
offences alleged. The list of the offences registered against the applicant is then provided at page 191 of the paperbook.
30] As required under Section 3 of the UAP Act the activities of CPI- Maoist have been banned by the Government of India. The Government of India has enlisted this organisation, i.e., CPIM and all its formations and front organisations in the “Schedule” under Section 2(1)(m) of the UAP Act and has been mentioned at Sr. No.24 in the said “Schedule” vide MHA, NEW Delhi S.O.1525(A) Gazette of India # 954 Extra Ordinary Part-II, Section 3(2) dated 22nd June, 2009. After perusal of the above material, I am of the opinion that the applicant's case cannot be said to be on par with that of the co-accused. It is not necessary for me to express any opinion lest it may prejudice the case of either sides. However, the case of applicant is clearly distinguishable from that of the co-accused in this C.R. and from those whom the Hon'ble Supreme Court has enlarged the applicants – appellants on bail or has refused to interfere with
36
ba304-13.doc
the order releasing them or enlarging them on bail. The criteria
that has been adopted and prima facie of being active member of an organisation which is termed as terrorist organisation and
with regard to which the notification has been issued in terms of the enactment. In this case, the applicant prima facie is a member of the Regional Committee and also a golden corridor committee, both of which are part and parcel of the banned organisation. She is not just a person who associates or is a nominal or sympathiser member. She does not prima facie merely subscribe to the ideology as was found in other cases but actively promotes and propounds it. Her acts, prima facie, would fall within the provisions relied upon by the prosecution and to be found in Chapters IV to VII of the UAP Act, 1967. Her role, at this stage and on the basis of the available material, prima facie cannot be confined and seen as restricted to mere membership of an unlawful association. Prima facie, applicability of more stringent provisions of the UAP Act including Section 43 D(5) thereof, in her case, is not ruled out.
37
ba304-13.doc
Apart therefrom, prima facie, her participation in the activities of the banned organisation and her membership cannot be termed as nominal, passive or a sympathiser. Her case is therefore distinguishable from others even at this prima facie stage. It is not, therefore, a case of democratic rights and particularly constitutional right of freedom of speech and expression which could be put in issue and equally her right of life and liberty guaranteed by the Constitution. Each of these rights are subject to reasonable restrictions. Therefore, in a given case people like the applicant being found to be active and their membership is not merely as a sympathiser or can be classified as nominal, then, a different view at prima facie stage is possible. Once the activities are termed as unlawful and organisation involved therein is both, terrorist and unlawful, then, at this stage, it cannot be stated with certainty that the applicant will be punished only for the offences which are enlisted other than in Chapter IV and VI. At this stage at which
the matter stands and finding that the applicant has also been
38
ba304-13.doc
arrested and charged with several offences which are more grave and serious punishable with imprisonment of death and life and arising out of her prominent role and association with
the terrorist organisation, then, all the more the benefit of the order passed in the case of co-accused cannot be given to her as the case of present applicant is clearly distinguishable and there is merit in the submissions of the learned APP in that behalf. At this stage, this Court should not express any opinion on merits. It is not possible to agree with Mr.Pasbola that this case is on par with that of co-accused because there is no seizure of arms or weapons. It is not possible to agree with him at this prima facie stage and in the teeth of materials collected that the applicant continued to reside under assumed names in Pune City and elsewhere only with a view to promote the philosophy
and idea of the outfit and was not promoting or encouraging
people to take part in its subversive or terrorist or unlawful activities. Her role is much more than that and which has been
prima facie indicated in the statement of witnesses including
39
ba304-13.doc
that of a free lance journalist. In such circumstances, it is not
possible to agree with Mr.Pasbola and release the applicant on bail.
31] As a result of the above discussion and finding that the materials collected, as indicated in the affidavits, are sufficient to hold that the applicant is connected with the banned organisation and the offences alleged against her are of both involvement in unlawful activities and being a active member of a terrorist organisation. They are serious and invite severe and stringent punishment, there is no alternative but to dismiss this application, which is accordingly dismissed.
32] Before parting, it would be worthwhile reminding all concerned of the observations of the Honourable Supreme Court in the case of Nandini Sundar and others v/s State of Chhattisgarh reported in AIR 2011 SC 2839 as under:-
“20. The primary task of the State is the provision of security
40
ba304-13.doc
to all its citizens, without violating human dignity. This would necessarily imply the undertaking of tasks that would prevent the emergence of great dissatisfaction, and disaffection, on account of the manner and mode of extraction, and distribution, of natural resources and organization of social action, its benefits and costs. Our Directive Principles of State Policy explicitly recognize this. Our Constitution posits that unless we secure for our citizens conditions of social, economic and political justice for all who live in India, we would not have achieved human dignity for our citizens, nor would we be in a position to promote fraternity amongst groups of them. Policies that run counter to that essential truth are necessarily destructive of national unity and integrity. To pursue socio-economic policies that cause vast disaffection amongst the poor, creating conditions of violent politics is a proscribed feature of our Constitution. To arrive at such a situation, in actuality on account of such policies, and then claim that there are not enough resources to tackle the resulting sociopolitical unrest, and violence, within the framework of constitutional values amounts to an abdication of constitutional responsibilities. To claim that resource crunch prevents the State from developing appropriate capacity in ensuring security for its citizens through well trained formal police and security forces that are capable of working within the constitutional framework would be an abandonment of a primordial function of the State. To pursue policies whereby guns are distributed amongst barely literate youth amongst the poor to control the disaffection in such segments of the population would be tantamount to sowing of suicide pills that could divide and destroy society. Our youngsters are our most precious resource, to be nurtured for a better tomorrow. Given the endemic inequalities in our country, and the fact that we are increasingly, in a demographic sense, a young population, such a policy can necessarily be expected to lead to national disaster.
41
ba304-13.doc
52. Many of these tribal youngsters, on account of the violence perpetrated against them, or their kith and kin and others in the society in which they live, have already been dehumanized. To have feelings of deep rage, and hatred, and to suffer from the same is a continuation of the condition of dehumanization. The role of a responsible society, and those who claim to be concerned of their welfare, which the State is expected to under our Constitution, ought to be one of creating circumstances in which they could come back or at least tread the path towards normalcy, and a mitigation of their rage, hurt, and desires for vengeance. To use such feelings, and to direct them into counter-insurgency activities, in which those youngsters are placed in grave danger of their lives, runs contrary to the norms of a nurturing society. That some misguided policy makers strenuously advocate this as an opportunity to use such dehumanised sensibilities in the fight against Maoists ought to be a matter of gravest constitutional concerns and deserving of the severest constitutional opprobrium.
68. Indeed, we recognize that the State faces many serious problems on account of Maoist/Naxalite violence. Notwithstanding the fact that there may be social and economic circumstances, and certain policies followed by the State itself, leading to emergence of extremist violence, we cannot condone it. The attempt to overthrow the State itself and kill its agents, and perpetrate violence against innocent civilians, is destructive of an ordered life. The State necessarily has the obligation, moral and constitutional, to combat such extremism, and provide security to the people of the country. This, as we explained is a primordial necessity. When the judiciary strikes down state policies, designed to combat terrorism and extremism, we do not seek to interfere in security considerations, for which the expertise and responsibility lie with the executive, directed and controlled by the legislature. Judiciary intervenes in such matters in order to safeguard constitutional values and goals, and fundamental rights
42
ba304-13.doc
such as equality, and right to life. Indeed, such expertise and responsibilities vest in the judiciary. In a recent judgment by a constitutional bench, G.V.K Industries v. ITO, this Court observed:
“Our Constitution charges the various organs of the state with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation.... powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that such power is being used within the bounds specified in the Constitution. Consequently, it is imperative that the powers so granted to various organs of the state are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the government in discharging their constitutional responsibilities. Powers that have been granted, and implied by, and borne by the Constitutional text have to be perforce admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the state may arrogate to itself powers beyond what is specified in the Constitution. Walking on that razors edge is the duty of the judiciary. Judicial restraint is necessary in dealing with the powers of another coordinate branch of the government; but restraint cannot imply abdication of the responsibility of walking on that edge.”
71. As we remarked earlier, the fight against Maoist/Naxalite violence cannot be conducted purely as a mere law and order problem to be confronted by whatever means the State can muster. The primordial problem lies deep within the socio-economic policies pursued by the State on a society that was already endemically, and horrifically, suffering from gross inequalities. Consequently, the fight against Maoists/Naxalites is no less a fight for moral, constitutional and legal authority over the minds and hearts of our people. Our constitution provides the gridlines within which the State is to act, both to assert such authority, and also to initiate, nurture and sustain
43
ba304-13.doc
such authority. To transgress those gridlines is to act unlawfully, imperiling the moral and legal authority of the State and the Constitution. We, in this Court, are not unaware of the gravity that extremist activities pose to the citizens, and to the State. However, our Constitution, encoding eons of human wisdom, also warns us that ends do not justify all means, and that an essential and integral part of the ends to which the collective power of the people may be used to achieve has to necessarily keep the means of exercise of State power within check and constitutional bounds. To act otherwise is to act unlawfully, and as Philip Bobbitt warns, in “Terror and Consent - The Wars for the Twenty First Century”, “if we act lawlessly, we throw away the gains of effective action.” Laws cannot remain silent when the canon's roar.
the observations in the judgment of the Honourable Supreme Court under Part-I would demonstrate the concern of the highest court in this country for the problems arising out of
44
ba304-13.doc
insurgency and increasing insecurity. It would be proper if all concerned peruse this judgment carefully and implement the same in letter and spirit.
34] The Bail Application is dismissed.
(S. C. DHARMADHIKARI, J)
2 issues framed by the court
Whether the applicant, alleged to be an active member of the banned organisation CPI (Maoist), is entitled to be enlarged on bail under the UAP Act, 1967.
Whether the applicant's case is on par with that of the co-accused and the accused enlarged on bail by the Supreme Court and by this Court.
Colour shows how this judgement treated each authority
State of Kerala Vs. RaneefDistinguished¶23
A.I.R. 2011 S.C. 340 · Who else cites this
Arup Bhuyan Vs. State of AssamReferred¶25
(2011) 3 S.C.C. 377 · Who else cites this
Indra Das Vs. State of AssamReferred¶26
(2011) 3 SCC 380 · Who else cites this
Ms.Jyoti Babasaheb Chorge Vs. State of MaharashtraDistinguished¶27
Bail Application No.1020 of 2012
Ms.Sushma Hemant Ramtekke Vs. State of MaharashtraDistinguished¶27
Bail Application No.1066 of 2012
Dhawala Rama Dhengale Vs. State of MaharashtraDistinguished¶27
Criminal Bail Application No.1536 of 2012
Siddharth Bhagwan Bhosale Vs. State of MaharashtraDistinguished¶27
Bail Application No.1634 of 2012
Mayuri Panjabrao Bhagat & Anr. Vs. State of MaharashtraDistinguished¶27
Bail Application No.1692 of 2012
Nandini Sundar and others v/s State of ChhattisgarhReferred¶32
AIR 2011 SC 2839 · Who else cites this
8 provisions across 3 enactments
Ms. Angela Harish Sontakke
The State of Maharashtra
S. C. Dharmadhikari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
