07 Jan 2121

Section 43D (5) of Unlawful Activities (Prevention) Act, 1967 imposes restriction on the bail of the accused - Gauhati High Court

Case : Akhil Gogoi v. National Investigating Agency Crl.A./186/2020

Court : Gauhati High Court

Bench : Justice Kalyan Rai Surana and Justice Ajit Borthakur

Decided on : 07 Jan 2121

Relevant Statues

Sections 120-B,124A and 153B of the Indian Penal Code,1860

Sections 18,39,15 and 43D (5) of the Unlawful Activities (Prevention) Act, 1967

Section 21(4) of National Investigating Agency Act, 2008

Facts and Procedural History

1. The appellant/accused is said to have been indulged in various terrorist activities under the provisions of the Unlawful Activities (Prevention) Act,1967 in order to protest against the passing of the Citizenship (Amendment) Bill.

2. The accused/appellant is a member of the Krishak Mukhti Sangram Samiti (KMSS) (herein known as KMSS)

3. As per the allegations, the accused/appellant had sent KMSS cadres to the CPI(Maoist) camps for training in handling firearms and explosives, indulged in the acts of violence, disrupted essential services, and caused injury to the security personnel and there were also incidents of arson throughout the state of Gauhati.

4. The accused/appellant filed for bail application, but it was rejected by the trial court of Gauhati.

5. The appeal against the trial court of Gauhati is filed in the High Court of Gauhati.

The Issue of the Case

Whether the accused should get bail under Section 43D (5) of the Unlawful Activities (Prevention) Act,1967?

The Observations of the Court

1. The Honourable High Court of Gauhati observed that apart from the bail restrictions mentioned in Section 43D (5) of the Unlawful Activities (Prevention) Act,1967, there are other statutes that put restrictions on the power of the Court to grant bail in relation to offences committed under those Acts. One such statute is the Maharashtra Control of Organised Crime Act, 1999 (MCOC Act). However, the difference between the language used in Section 43 of Unlawful Activities (Prevention) Act, 1967 and Maharashtra Control of Organised Crime Act, 1999 has been explained by the Supreme Court of India in the case of National Investigation Agency Vs. Zahoor
Ahmed Shah Watali, (2019) 5 SCC 1
 and that the said judgment also lays down as to what should be the approach of the Court in deciding bail applications involving offences under Chapter IV and VI of the Unlawful Activities (Prevention) Act, 1967. Pursuant to the guiding principles as contained in para 23 to 29 and 32 of the said case, the Court is deciding this appeal.

2. The Honourable High Court of Gauhati further observed that the acts which are prejudicial for national integration fall within the definition of “terrorist act” as defined in Section 15 of the Unlawful Activities (Prevention) Act, 1967.

3. The Honourable High Court of Gauhatialso observed that the strike calls and speeches made by the accused/appellant fall within the freedom of speech and expression as guaranteed by Part-III of the Constitution of India because of the fact that the call transcripts, which are accompanying the charge-sheet, clearly indicate that the appellant wanted to protest in such a manner which would disrupt all modes of rail and road transport and to paralyze Government machinery not only on other dates but specifically on the date when Japan’s Prime Minister was slated to visit the State.

4. The High Court of Gauhati referred the profit to the ratio laid down by the Supreme Court of India in the case of Puran Vs. Rambilas, (2001) 6 SCC 338, and Ranjitsing Brahmajeetsing Sharma v State of Maharashtra, (2005) 5 SCC 294, which states that the issue of admissibility and credibility of the material and evidence presented by the Investigating Officer would be a matter for trial.

The Decision Held by the Court

The Honourable High Court of Gauhati held that the learned Special Judge, National Investigating Agency, was correct in its finding that the accused was prima facie responsible for the commission of offences that is punishable under Chapter IV and VI of Unlawful Activities (Prevention) Act,1967 and that as per the bar imposed by Section 43D (5) of the Unlawful Activities (Prevention) Act,1967, the appellant cannot be released on bail.

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