No material to show active participation of accused in the activities of CPI (Maoist), says SC; Restores NIA court order granting bail to Kerala UAPA accused Thwaha Fasal

THE Supreme Court on Thursday allowed the appeal filed by Kerala's Thwaha Fasal challenging a high court order cancelling his bail under the Unlawful Activities (Prevention) Act (UAPA) case for alleged Maoist links.

A division bench of Justices Ajay Rastogi and A.S. Oka passed an order to this effect, restoring the Special NIA Court order granting bail to Fasal.

The bench also dismissed the appeal filed by the National Investigation Agency (NIA) against the bail granted to co-accused Allan Shuhaib.

The bench held "mere association with a terrorist organisation is not sufficient to attract Section 38 (offence relating to membership of a terrorist organisation) and mere support given to a terrorist organisation is not sufficient to attract Section 39 (offence relating to support given to a terrorist organisation) of the UAPA.

"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", the bench ruled.

It added "at a 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".

The Kerala High Court, on January 4, while cancelling Fasal's bail, said that when individual rights are pitted against national interest and security, the latter should prevail. It also added that it did not approve the 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 high court had said.

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 the Indian Penal Code.

Read the judgment