05 Feb 2121

Conduct of paralyzing the Government by doing such acts which are prejudicial for national integration falls within the purview of restriction of freedom of speech and expression - Gauhati High Court

Case : Bhaskarjit Phukan and Ors. v. National Investing Agency Crl.A./171/2020

Court : Gauhati High Court

Bench : Justice Kalyan Rai Surana and Justice Ajit Borthakur

Decided on : 05 Feb 2121

The Relevant Statutes

Sections 120B, 147, 148, 149, 336, 353, 326, 307, 153A and 153B of the Indian Penal Code,1860

Sections 15(1)(a) and16 of the Unlawful Activities Prevention Act,1967

Sections 6, 8 and 21 of the National Investigating Agency Act, 2008

Brief Facts and Procedural History

1. A FIR was registered against the accused at the NIA Guwahati Branch Office under sections 120B, 147, 148, 149, 336, 353, 326 and 307 of the Indian Penal Code, 1860 and added sections 153A and 153B of the Indian Penal Code, 1860 and Section 15(1)(a) of the Unlawful Activities Prevention Act,1967 arising out of FIR No. 289/2019 dated 10.12.2019, registered at the Chabua P.S. to investigate the disruption of supplies by economic blockade staged at railway track and national highway at Chabua town on 09.12.2019 and attempt to murder government functionaries on duty by throwing stones.

2. The FIR was submitted before the learned Special Judge (NIA) on 09.04.2020 and investigation was taken up. The appellants, who were accused nos. 3 and 4 were arrested on 11.05.2020 and since then they are in jail/judicial custody.

3. It has been submitted that the accused no.1 is presently lodged at Central Jail, Guwahati. The accused no.2 was granted bail by the learned Sessions Judge, Dibrugarh.

4. Aggrieved by the rejection of prayer for bail, the appellants have filed for this appeal under section 21 of National Investigation Agency, 2008.

The Issue of the Case

Whether the National Investigating Agency violated the rights of the Appellants by rejecting the prayer of bail?

The Observations by the Court

1. The Honourable Gauhati High Court observed that the photographs submitted along with the charge sheet reveal that appellant 1 was seen brandishing a sword and the same was identified by the witnesses and the transcription of calls stated to be legally intercepted disclosed detailed discussions by the appellant on plans to make protests when the Japanese Prime Minister and Prime Minister of the Country arrive at Guwahati and that there was sufficient material to show that the roads including NH-37 were blocked with burning of tires, bringing the economic activities to a complete standstill during the relevant period.

2. Against the contention of counsel for appellants the Honourable High Court Observed that the Govt. of India, Ministry of Home Affairs by order, authorized The National Investigation Agency to take up the investigation and based on such order an FIR was re-registered.

3. The Honourable Gauhati High Court observed that having regard to the facts of the present case in hand, that the acts committed by the appellants in conspiracy with other co-accused were aimed to disrupt the economy of the State by inciting violent protests and caused shut down of towns in Tinsukia District and that his actions had a terrorizing effect on the harmony of the innocent public at large. By use of violence, the appellant led mob had brushed aside the noble concept of non-violent protest and causing economic blockade, causing enmity between groups, disruption of public peace a widespread disharmony and dissatisfaction towards the Govt., as these acts are prejudicial for national integration and such acts squarely fall within the definition of “terrorist act” as defined in section 15 of the Unlawful Activities Prevention Act, 1967.

4. The Honourable Gauhati High Court against the arguments posed concerned with speeches made by the appellants falling within the freedom of speech and expression as guaranteed by Part-III of the Constitution of India states that his speech clearly indicates 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. The materials on record prima facie disclose the culpability of the appellants and their involvement in the commission of alleged offences as more fully mentioned in the charge sheet.

4. Having regard to the requirement of section 41D (5) of the Unlawful Activities Prevention Act, 1967, the Honourable Gauhati High Court has made a deep probe into the matter so as to enable it to prima facie arrive at a finding that the materials collected against the appellants during an investigation may be sufficient to lead to a conviction.

5. The Honourable High Court while emphasizing the Article 51-A of the Constitution of India states that it is a fundamental duty for every person to safeguard public property and to avoid any kind of violence during the protests keeping in mind that resorting to violence during public protest results in the breach of the key fundamental duty of citizens. Therefore, this fundamental duty to protest peacefully must be exercised harmoniously with the right to freedom of speech and expression as guaranteed under Article 19(1)(b) of the Constitution of India and within the restrictions imposed by Article 19(2) in the interest of the State and its citizens. The act of blocking the public road, disrupting the free flow/movement of essential goods to the public in the State, setting fire to public offices and vehicles in the garb of public protest certainly cannot be termed as peaceful democratic protests in law.

6. After dealing with all the materials the Honourable Court relies upon the fact that its prima facie shows that the appellants had not only led the protests but had provoked people to join him and that upon directions issued by the accused no.1, the supplies essential to the life of the community of the Country was disrupted in the State. Therefore, the appellants cannot be allowed to go on bail as the provisions of section 43D (5) Unlawful Activities and Prevention, Act 1967 disempowered the Court from releasing them on bail.

The Decision Held by the Court

The instant appeal being devoid of any merit is dismissed and none of the observations expressed herein shall have any bearing on the trial of the case, which shall be decided on its own merit.

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