The Kerala High Court Monday cancelled the bail granted to one Thwaha Fasal in an Unlawful Activities (Prevention) Act (UAPA) case for alleged Maoist links.
It, however, refused to cancel the bail granted to another accused, Allan Shuhaib.
While cancelling Fasal's bail, a division bench of Justices A. Hariprasad and K. Haripal said when individual rights are pitted against national interest and security, the latter should prevail.
The bench said it did not approve the firm view of the Special Judge, NIA that bail is the rule and jail, an exception.
"Even though that is the general perception in ordinary crimes, when the accused faces allegation under a special enactment, his right to be enlarged on bail shall be governed by the provisions of the special statute", the bench said.
It added that when an offence under Chapters IV and VI of the UAPA is alleged, the court should not grant bail unless giving liberty to the Prosecutor to address the court.
Further, the Court said, the proviso to Section 43-D(5) works as a statutory injunction on the court in granting bail; if there are prima facie circumstances to believe that the allegations are true, bail cannot be granted as a rule.
It went on to state that the principle, bail is the rule and jail the exception, has no application in such a case, especially when the offences under Chapters IV and VI of the UAPA are alleged against the accused.
The Court said the documents seized from the accused carry the seeds of a secessionist ideology and the very Act is intended to address such activities.
It added that the Special Judge had oversimplified matters and watered down the seriousness of the documents seized from the accused or the statements of witnesses spoken against them.
The judges signed off the judgment not before rebuking the Special Judge, NIA, saying, "We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary".
"Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon'ble Judges who authored the judgments which is unwholesome", the bench added.
In not canceling Shuhaib's bail, the High Court noted that there were numerous mitigating circumstances in his favour. Firstly, on the date when the crime was detected, he was only 20 years old. Secondly, referring to copies of prescriptions produced along with the bail application, the Special Judge had noted that he had some psychiatric issues for which treatment was underway. Thirdly, the materials that were seized from him and placed before the court were less serious compared to the materials seized from Fasal's possession, the high court said.
The bench was ruling on an appeal filed by the Union Government against the order of the Special Judge, NIA.
The NIA court in Kochi last year granted bail to two students, who were arrested for alleged Maoist links and were facing charges under UAPA.
Shuhaib, a law student, and Fasal, a journalism student, both members of the ruling CPI(M), were arrested from Kozhikode by the local police and charged under Sections 38 and 39 of UAPA and Section 120B of IPC.
While granting bail, the NIA court said there was no allegation by the prosecution that the accused conspired to commit any specific terrorist act.
http://theleaflet.in/wp-content/uploads/2021/01/Kerala-HC-order.pdf