The high court noted that the prosecution fails to show that the accused has been involved or has indulged in a terrorist act.
ON November 18, a division bench of Bombay High Court, comprising Justices A.S. Gadkari and Milind N. Jadhav, granted bail to Dr. Anand Teltumbde, the 73-year-old Dalit scholar, academic and activist charged under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) for allegedly being a senior member of the banned Communist Party of India (Maoist) (‘CPI (Maoist)’).
According to the directions of the high court, however, the operation of the bail order remained under suspension for a week, as sought by the National Investigation Agency (‘NIA’) to enable it to appeal to the Supreme Court.
On November 25, 2022, a Supreme Court division bench comprising the Chief Justice of India (‘CJI’) Dr. D.Y. Chandrachud and Justice Hima Kohli, decided not to interfere with the order of the high court and dismissed a special leave petition filed by the NIA challenging the order.
What is the background of the case?
In the Elgar Parishad-Bhima Koregaon case, according to the police, allegedly provocative statements and speeches made at the Elgar Parishad meeting in Pune on December 31, 2017 instigated the violence at Bhima Koregaon the following day on January 1, 2018 that led to the death of one and injuries to several others. Leading activists, lawyers, scholars and artists have been arrested without trial, charged under the Indian Penal Code and the UAPA.
A total of sixteen persons have been arrested in the case as key-accused. The relatives and lawyers of the activists jailed in this case have repeatedly raised the issue of human rights for the prisoners.
Also read: ‘We are all prisoners of conscience’, say those facing trial in Bhima Koregaon case on the occasion of fourth anniversary of their arrests
Dr. Teltumbde, a Dalit scholar and activist, taught at the Indian Institute of Technology Kharagpur and the Goa Institute of Management, and was previously the Managing Director of Petronet India Limited and an executive at Bharat Petroleum. In April 2020, Dr. Teltumbde had to surrender to the NIA for allegedly being a senior member of the banned CPI (Maoist) and working for it in urban areas.
Dr. Teltumbde was charged by the NIA under Sections 120B (criminal conspiracy), 115 (abetment of offence punishable with death or imprisonment for life—if offence not committed), 121 (waging, or attempting to wage war, or abetting waging of war, against the Government of India), 121A (conspiracy to commit offences punishable by section 121), 124A (sedition), 153 (wantonly giving provocation with intent to cause riot), 201 (ccausing disappearance of evidence of offence, or giving false information to screen offender), 505(1)(b) (statements conducing to public mischief) and 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code, and Sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18B (punishment for recruiting of any person or persons for terrorist act), 20 (punishment for being member of terrorist gang or organisation), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA.
In September 2021, the special court NIA rejected Dr. Teltumbde’s bail on medical grounds. Teltumbde had raised the contention that he suffered from chronic asthma, chronic cervical spondylitis, supraspinatus tendinopathy and prostatomegaly. On December 1, 2021, the special NIA court denied Dr. Teltumbde’s interim bail application to be with his 90 year-old mother in the wake of the death of his brother Milind Teltumbde, a top Naxal leader, in an encounter with security forces. On March 2 this year, the Bombay high court granted Dr. Teltumbde’s plea to visit his mother, while also directing the Maharashtra government to consider Dr. Teltumbde’s health in respect of his mode of conveyance.
Section 43D(5) of the UAPA provides for stringent grounds to grant bail to any person accused and arrested under the UAPA. The provision particularly makes the grant of bail difficult since the accused cannot provide any evidence in their defence outside of the chargesheet.
Also read: Despite denial by NIA Court, why Anand Teltumbde has a right to temporary bail
On March 31, Dr. Teltumbde moved the Bombay High Court with the plea that he was wrongly charged under the UAPA, and contended that the NIA had failed to directly attribute to him any particular act of violence in the actual case. In April 2022, Dr. Teltumbde approached the NIA’s special court seeking discharge from the charges imposed on him, on the ground that the NIA had not yet produced any material before the court to actually prove that he was a member of the CPI (Maoist).
What is the significance of Section 43D of the UAPA in the present case?
Section 43D(5) states, “Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”
Introduced by the 2008 Amendment to the UAPA, section 43D(5) requires a court to not release an accused on bail if, on the perusal of the case diary or chargesheet, there are reasonable grounds to believe that a prima facie case exists against the accused. The section, thus, provides for stringent grounds to grant bail to any person accused and arrested under the UAPA. The provision particularly makes the grant of bail difficult since the accused cannot provide any evidence in their defence outside of the chargesheet.
In its judgment granting bail to Dr. Teltumbde, the division bench of the Bombay High Court referred to the section as “an extraordinary phenomenon and a deviation from the ordinary criminal law”. The bench relied on the five parameters provided by the Andhra Pradesh High Court in Devendra Gupta & Anr. versus NIA (2014) on deciding whether the accusation is prima facie true.
Referring to the submissions made before the court, the bench noted that recording the allegations as “prima facie true” implies recording such satisfaction that material recovered by the NIA must prevail until disproved by other evidence. Notably, the judgment also observed that such a recording also indicates that such material shows the complicity of the accused in the commission of the offence.
Also read: Reflecting on the most poignant moments of last two years during Anand’s incarceration
How did the bench interpret documents or letters that allege Dr. Teltumbde’s nexus to criminal activities?
Pursuant to the provision of section 43D(5), the court perused the available material on record relied upon by the NIA against Dr. Teltumbde.
Rejecting the NIA’s accusation that the appearance of the name ‘Anand’ in the letter proves his involvement in activities of the CPI (Maoist), the court noted the absence of a link of Dr. Teltumbde with the alleged crime or any specific overt act.
With respect to the first letter, the NIA alleges that reference to Dr. Teltumbde as ‘Comrade Anand’ indicates that he is an active member of the CPI (Maoist) wherein he has been called upon to organise international seminars for which funds have been sanctioned by CPI (Maoist). The court noted that Dr. Teltumbde has travelled for official work of the Goa Insititute of Management where he was employed, or at his own expense, as a resource person to renowned institutions. The court further noted that the letter was not recovered and seized from Dr. Teltumbde.
On the second letter as the second documental evidence, the court rejected NIA’a presumption that the reference to ‘Comrade Anand’ or ‘Anand’ indicated his active involvement in CPI (Maoist) party work.
With reference to the third letter, the NIA alleged that being part of the fact-finding team to gauge the truth of fake encounters in Gadchiroli falls under the criminal acts mentioned under section 15 of the UAPA. The court dismissed this allegation on lack of material to prove Dr. Teltumbde’s nexus to the alleged criminal acts.
According to the NIA, the fourth letter exalts the party cadres and calls them to organise protests across BJP-ruled states. Rejecting the NIA’s accusation that the appearance of the name ‘Anand’ in the letter proves his involvement in activities of the CPI (Maoist), the court noted the absence of a link of Dr. Teltumbde with the alleged crime or any specific overt act. The court further observed that although the letter refers to 17 persons, not all are indicted in the present crime.
The bench pointed out the fallacy in the NIA’a allegation that Dr. Teltumbde received Rs. 90,000 from co-accused, activist and lawyer Surendra Gadling. Perusing the account statement relied upon by the NIA, the court rejected its contention on account of the need for further corroboration and evidence.
In all of the documents, the bench has pointed out that the letters were not recovered and seized from the custody of Dr. Teltumbde. The bench also notes that Dr. Teltumbde has vehemently denied that ‘Anand’ or ‘Comrade Anand’ refers to him, as alleged by the NIA. The bench remarked that to presume such references were made to Dr. Teltumbde requires corroboration and evidence.
The court noted that the NIA failed to provide any material or literature relating to the Maoist ideology brought by Dr. Teltumbde from abroad.
Additionally, the court noted that Dr. Teltumbde’s relation to Milind Teltumbde as his elder brother cannot be the sole reason to indict him and link him to the activities of CPI (Maoist).
Also read: Bhima Koregaon: Dr. Anand Teltumbde’s bail plea highlights flaws in the prosecution story
How did the bench peruse the statements of witnesses relied upon by the NIA?
The first witness, in his capacity as the Division Secretary of CPI (Maoist), has stated the instrumental role of Dr. Teltumbde in aligning the Dalit movement with the CPI (Maoist). The court opined, firstly, that such allegation of association with CPI (Maoist) attract Sections 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA, and not Section 15 of the Act. Secondly, the bench noted that the witness had not seen Dr. Teltumbde with any member of the CPI (Maoist).
Whereas, the second witness statement alleged that Milind Teltumbde had met Dr. Teltumbde. Dismissing the evidentiary value of the statement, the court noted it to be hearsay evidence since the witness had not specifically seen Dr. Teltumbde meet his brother.
The court referred to the third witness statement alleging that Dr. Teltumbde visited countries like the Philippines, Peru and Turkey under the guise of academic visits with the purpose of bringing Maoist literature and videos for the training of CPI (Maoist) members. On this statement, the court observed that Dr. Teltumbde has denied visits to the Philippines, Peru and Turkey, and also suggested that his passport be perused. However, the court noted that the NIA failed to provide any material or literature relating to the Maoist ideology brought by Dr. Teltumbde from abroad.
Also read: Anand Teltumbde’s letter to the people of India before his imminent arrest
What did the bench opine on Dr. Teltumbde allegedly committing a terrorist act as against being a member of the terrorist group?
It was NIA’s contention that the banned terrorist organisation CPI (Maoist) used the Elgar Parishad program as a platform to further its larger conspiracy. According to their case, Dr. Teltumbde is an active member of the CPI (Maoist) and is associated with its activities. It urged that since he has participated in the larger conspiracy of the CPI (Maoist), he should not be enlarged on bail.
The bench noted that merely being a member of a terrorist gang cannot make such a member liable for the punishment that can extend to imprisonment for life under the provision. It emphasised the importance of a ‘terrorist act’ and the necessity to produce before the court to prove such involvement in the terrorist act.
On the other hand, senior advocate Mihir Desai, on behalf of Dr. Teltumbde, submitted that the doctrine of “guilt by association” does not apply in the present case. Desai contended that mere membership of the banned organisation does not make a person criminally liable unless they resort to violence or incites people to violence under the UAPA.
In consideration of this allegation, the bench addressed the offences charged by the NIA under sections 16 and 18 of the UAPA against Dr. Teltumbde.
To understand section 18 and the nuance of conspiracy, which deals with a terrorist act or any act preparatory to the commission of the terrorist act, the bench delved into the definition of “terrorist act” under Section 15 of the Act. Referring to the present case, the court noted that the prosecution fails to show that the accused has been involved or has indulged in a terrorist act.
The bench observed, “In the present case, seizure of incriminating evidence as alluded to hereinabove does not in any manner prima facie leads to draw an inference that, Appellant has committed or indulged in a ‘terrorist act’ as contemplated under Section 15 of the UAP Act”. With this observation, the bench rejected the application of sections 16 and 18 at the present stage of bail due to a lack of better proof and evidence.
With respect to the offence under section 20 of the UAPA, the bench noted that merely being a member of a terrorist gang cannot make such a member liable for the punishment that can extend to imprisonment for life under the provision. The court emphasised the importance of a ‘terrorist act’ and the necessity to produce before the court to prove such involvement in the terrorist act.
The judgment concluded that the prima facie analysis of the material produced on record by the NIA is indicative that Dr. Teltumbde is a member of the banned CPI (Maoist). Hence, being such a member can at most attract the provisions of sections 13, 38 and 39 of the UAPA, the bench added.