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Kerala HC sets aside NIA court bail to Thwaha Fasal upon agency’s appeal

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The Kerala High Court set aside the order passed by Special NIA Court Kochi granting bail to Thwaha Fasal, a journalism student, in a Unlawful Activities (Prevention) Amendment Act (UAPA) case for alleged Maoist links while disposing the appeal filed by the National Investigation Agency against the September 9 order of the Special NIA Court, Kochi.

The division bench comprising Justices A. Hariprasad and K. Haripal heard the appeals preferred under Section 21(4) of the National Investigation Agency Act, Act 34 of 2008, challenging the correctness of the common order passed by the Special Judge for the trial of NIA cases.

The respondents, along with another person by name Usman, who is absconding, stand charged by the NIA for offences punishable under Section 120B IPC read with Sections 38 and 39 of the UAPA, hereinafter referred to as the Act. Apart from the above, the second accused, who is the respondent faces allegation under Section 13 of the Act also.

The High Court, however, has not cancelled the bail granted to Allan Shuhaib, who was arrested with Thwaha in November 2019.

The Court said that it was not interfering with the bail granted to Allan Shuhaib at the moment, considering his young age and also a different degree of involvement.

Earlier, the Court has directed Thwaha to surrender before the trial court. The HC has also given a direction to the NIA Court to complete the trial within a year. The Court has also set aside the finding of the trial court, that no prima facie case was made out against the accused.

The Kerala Police had arrested them in November 2019 under the UAPA alleging that they were supporting proscribed Maoist groups that had been declared terrorist organizations. The case was then handed over to the NIA.

The national agency cited books, pamphlets, placards, diary notes etc seized from the accused to allege that they were supporters of Maoist ideology. Offences under Sections 38 and 39 of the UAPA which deal with association with a terrorist organization and supporting it with the intention to further its activities, Section 13 of the UAPA (punishment for unlawful activity) and 120B of the Indian Penal Code (criminal conspiracy) were invoked against them.

The NIA Court observed that the notices, pamphlets, banners, etc., seized from the accused related to “burning social and political issues” such as calling for implementation of Gadgil Committee report for the protection of western ghats, condemnation of encounter killings of Maoists, protests against police atrocities, abrogation of J&K special status, etc. The programmes and activities projected by the prosecution were public protests related to current issues, the court noted.

“It becomes adverse only when there is any positive act from the side of the accused to instigate violence. Prima facie there is nothing to suggest any overt act on the side of the accused in this regard,” the Court said.

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The Court stated that the NIA dropped Section 20 of UAPA (which relates to membership of banned organization) from the charge-sheet. So, the Court said that even the NIA does not have a case that the accused are members of Maoist organizations.


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