The Gujarat High Court has granted bail to Pathalgadi Movement leader Babita Sukar Kashyap, who was arrested by the Gujarat Anti Terrorism Squad (ATS) for anti-national activities.
A Single-Judge Bench of Justice S. H. Vora yesterday granted bail to Kashyap, stating that the applicant is ordered to be released on bail in connection with FIR being registered with ATS Police Station, Ahmedabad, on a surety and bond of Rs 20,000 each.
The Court passed the order on a Criminal Miscellaneous Application filed by Kashyap under Section 439(2) of the Code of Criminal Procedure, seeking regular bail in connection with the FIR registered against her with ATS Police Station, Ahmedabad dated July 24, 2020 for various offences punishable under Sections 121(A), 124(A), 153(A) read with Section 120-B of the Indian Penal Code of 1860.
According to the prosecution, cases were registered against the applicant and other co-accused at various Police Stations in Jharkhand for indulging in anti-national activities, abduction, murder, rape and waging war against India. The accused allegedly entered their activities in the tribal area of Kevadiya, Dahod, Chhota Udaipur and Vyara in Gujarat and instigated the followers of Sati-Pati Cult of tribal to take violent means by wrong interpretation of the Fifth Schedule of Constitution of India and wage war against India.
The co-accused made people fight on the basis of caste and class by instigating them and they were caught with documents and mobile phones containing incriminating material in their possession and thus committed the aforesaid offence.
In pursuance to the to FIR in question registered against the applicant, Kashyap was arrested on July 24, 2020 and after investigation, a charge sheet was filed before the Court of JMFC, Vyara on October 19, 2020.
The Counsel for the applicant submitted that the prosecution has failed to make out a case under Sections 121(A), 124(A) and 153(A) of IPC and the FIR is registered because the applicant was having similar antecedents at the State of Jharkhand.
According to him, so far as the similar offences registered against the applicant in State of Jharkhand is concerned, the Government of Jharkhand has ordered to withdraw all cases, which are registered against her in connection with Pathalgadi Movement.
It is further submitted that a bare perusal of charge sheet papers would indicate that the prosecution has relied upon Facebook posts and criticism of policy of the Government on non-implementation of constitutional provisions for the benefit of scheduled tribes cannot be considered as sedition under Section 124(A) of the IPC.
It is also submitted that the applicant has filed substantive proceedings under the Extraordinary Civil Writ Jurisdiction of the Apex Court being Writ Petition prior to lodgment of the FIR in the capacity as National Organization Secretary of the Adivasi Mahasabha and a member of a Scheduled Tribes, which has resulted in stultification of the inherent and constitutional right of self determination, which is an important facet of their right to life.
It is argued that the applicant has made various prayers before the Apex Court with respect to the right of self-determination as available to the schedule tribes which is combination of reservation of seats during election to the House of People as well as the respective Legislative Assemblies; and the Special Executive and legislative role of the Governor acting on the aid and advice of the Tribes Advisory Council in contradistinction with his normal duties to act on the aid and advice of the Council of Ministers.
It was pleaded before the Apex Court that the Governor shall be directed to function as per the advice / consultation with the Tribes Advisory Committee (TAC) for Schedule Areas and Tribes Areas as per the provisions of Fifth Schedule and not on the advice of the Council of Ministers as per Article 163(1) of the Constitution.
The respondent-State while objecting to grant of bail has filed affidavit-in-reply inter-alia stating that the applicant is provoking tribal community against the Government as well as declares that no Indian laws shall apply to districts/regions of adivasi areas and further that no government officers enters into the adivasi locality and provokes the tribal to assault government officers if they enter the tribal regions.
According to the Additional Public Prosecutor, there are similar seven offences registered in the State of Jharkhand which are reproduced here. While referring to the allegations made in the FIR itself and for such purpose, the State has relied upon statements of some 17 witnesses. Except this, no other material is relied upon by the respondent State.
The Court ordered that the applicant is ordered to be released on bail in connection with FIR being registered with ATS Police Station, Ahmedabad, on executing a bond of Rs 20,000 with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the applicant shall:
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[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] not leave the territory of India without prior permission of the Sessions Judge concerned;
[d] appear before the Investigation Officer concerned, as and when required for investigation purpose and attend the Court concerned regularly.[e] furnish the present address of residence along with the proof to the I.O. concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the Sessions Court.