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Supreme Court sets aside order of Kerala HC, grants bail to Thwaha Fasal

The Top Court also dismissed the appeal filed by the NIA challenging the same Kerala High Court judgment affirming the trial court’s order granting bail to law student Allan Shuaib in a UAPA case registered over alleged Maoist links, claimed by the NIA.

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The Supreme Court has today set aside the order of the Kerala High Court and granted bail to Kerala youth Thwaha Fasal, who had been booked under UAPA for alleged Maoist links. In another connected matter, the Supreme Court has dismissed an appeal by the National Investigation Agency (NIA) against bail granted to co-accused Allan Shuaib, a co-accused and law student in this case.

Both of them were charged under the Unlawful Activities (Prevention) Act. Today, a two-judge bench led by Justices Ajay Rastogi and Abhay S Oka has granted relief to both. One of the appeals was filed by Thwaha Fasal against the order of the Kerala High Court which had cancelled his bail granted by the Trial Court.

The Top Court also dismissed the appeal filed by the NIA challenging the same Kerala High Court judgment affirming the trial court’s order granting bail to law student Allan Shuaib in an UAPA case registered over alleged Maoist links, claimed by the NIA.

The Top Court had reserved its judgment on September 23 and had observed that,

“These are boys in their early 20s, they have some material in their possession. Can they be incarcerated only because of some kind of inference you draw…According to you, if any incriminating material was seized from these persons or their houses, you can infer that they are actively participating in these terrorist organizations?”

The petition filed by Fasal, a journalism student, had challenged the order of the Kerala High Court which in turn had set aside the order passed by Special NIA court in Kochi by which he was granted bail in a UAPA case for alleged Maoist links.

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The plea had stated:

“Mere possession of documents of the banned organization along with other books of current political and social issues, to the most, only indicating a learning process from the side of the petitioner especially he was a journalism student.”

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 Kerala High Court had focused on two main aspects, firstly the stringent provision section 43D(5) of UAPA states that in case of an application for bail, the special judge needs to hear from the public prosecutor, and even after such consideration, the proviso needs to be addressed. The proviso to Section 43-D(5) works as a statutory injunction on the court in granting bail; if there are prima facie circumstances to believe that the allegations are true, bail cannot be granted as a rule.

Before the High Court, Accused’s counsel further submitted that it might be the affinity of the youth in the tender age to know novel ideologies and that no criminal intent can be attributed. It was also pointed out that the first accused is a law student, only 19 years old at the time of registration of the crime, whereas the second accused is a student in Journalism, aged 23 years.

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The ASG and the Special Public Prosecutor argued that the learned Special Judge lost sight of the purport of the Act and showed over-enthusiasm in granting bail to the respondents; the court was proceeding on wrong assumptions. At the stage of considering the application for bail, the learned Judge should not have gone deep, disintegrating all the material pieces of evidence for concluding that there is no prima facie case in favor of the prosecution.

Two accused along with the one absconding accused Usman was found in suspicious circumstances and they carried some offensive literature including violent exhortations for civil war. The police were engaged in routine law and order patrol duty, they noticed the accused and out of suspicion when the police approached them, the said Usman ran away and disappeared from the place and two other accused were arrested.

The two accused are currently facing trial under Sections 38 and 39 of the UAPA r/w Section 120B IPC. Second, accused Thwaha Fasal is charged u/s 13 of UAPA as well.

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