The Gauhati High Court last week rejected the bail plea of peasants' rights activist Akhil Gogoi, in connection with a case registered against him under Sections 120B, 124A, 153B IPC and Sections 18 (Punishment for conspiracy, etc.) and 39 (Offence relating to support given to a terrorist organisation.) of the UA(P) Act.
While noting that Court was unable to record its satisfaction that the materials brought on record, in all probability, may not lead to (Gogoi's) conviction, the Bench of Justice Kalyan Rai Surana & Justice Ajit Borthakur remarked,
"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 the Japan's Prime Minister was slated to visit the State."
The Court, in clear terms held that the acts of violent protests "were aimed to strike terror in all sections of people in India irrespective of caste creed and religion."
The matter before the Court
The appellant (Akhil Gogoi) filed an appeal under section 21 (4) of the National Investigating Agency Act, 2008 challenging the order dated 13th July 2020, passed by the Special Judge (NIA), Assam, Guwahati in Misc. Case No. 18/2020 arising out of Spl. NIA Case No. 2/2020, thereby rejecting the prayer for grant of bail.
As per the Charge sheet, the Case against Gogoi is that:
- He "led violent protests" during the anti-CAA agitation, which were aimed to strike terror in all sections of people in India, irrespective of caste, creed and religion.
- He Associated with proscribed organization CPI (Maoist), and had sent cadres of KMSS (Krishak Mukti Sangram Samity) to train in Maoist camps
- Conspired, advocate, abetted, advised, the commission of terrorist act (as defined in sec. 15(1)(a)(iii) of UA(P) Act)
- Gave provoking speeches, promoted enmity between different classes of people on grounds of religion, race, place of birth, residence, language which is pre judicial to maintenance of harmony and caused widespread disharmony and disaffection towards the Government established by the law.
- Conspired and orchestrated the widespread blockade in the state of Assam, thereby paralyzing the government machinery, causing economic blockade.
- Provoked the mobs to cause damage to public property and grievous injury to officials on government duty.
Court's observations regarding Gogoi's role
While refraining from drawing interference from the tone and tenor of the speeches made by Gogoi or from seizure of books and literature with Marxist leanings, the Court, however, from the excerpts of statements made by the prosecution witnesses, noted that "it is certain that the appellant has called upon the public to protest."
Significantly, perusing the charge-sheet, which refers to burning of tyres (i.e., use of inflammable substances) by the protestors to cause rail, highway and internal road blockade on being provoked by the appellant, the Court was of the prima facie view that the four factors of clause (a) of subsection (1) of section 15 of UA(P) Act was found to be attracted in the case in hand.
Further, having regard to the facts of the case in hand, the Court opined,
"The dominant feature of the conspiracy by the appellant was aimed to disrupt the economy of the State by inciting violent protests and using success of total shut-down of one Town to shut down of other Towns and Cities in the entire State."
Based on the materials available on record, the Court was unable to hold that the violent protests throughout the State did not and/or could not have had any terrorizing effect on the harmony of the innocent public at large.
Rather, the Court was of the view that on being provoked by Gogoi, as the violent protests by burning of tyres had caused rail, highway and internal road blockade, "the same is sufficient to give rise to a critical law and order situation that as a whole had threatened the security of the State."
Significantly, the Court remarked,
"By use of violence, (Gogoi) led mob had brushed aside the noble concept of non- violent protest, which is popularly known as satyagraha and that such conduct of paralyzing the Govt. machinery, causing economic blockade, causing enmity between groups, disruption of public peace an widespread disharmony and dissatisfaction towards the Govt., are acts which are prejudicial for national integration and such acts squarely falls within the definition of 'terrorist act' as defined in section 15 of the UA(P) Act."
Also, the Court did not accept the submissions that Gogoi's strike calls and speeches made by him falls within freedom of speech and expression as guaranteed by Part-III of the Constitution of India.
Court's views regarding the probability of Gogoi's Conviction
As per the analysis made by the Court, it found that the materials on record prima facie disclosed culpability of the appellant and his involvement in the commission of alleged offences as mentioned in the chargesheet.
The Court remarked,
"It may be mentioned that the Court is conscious of the fact that the duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Having regard to the requirement of section 43D(5), the 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 appellant during investigation may be sufficient to lead to conviction."
The Court also observed that the 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 of the public road, disrupting 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," said the Court.
In view of the observations made by the Court, the Court came to the following conclusions: -
- Cadre/ members of KMSS were trained in the use of firearms and explosives
- The appellant had not only led the protests, but had provoked people to join him and
- Upon directions issued by the appellant, the supplies essential to life of the community of the Country was disrupted in the State.
- The appellant's call was instrumental in violent protests, and damage or destruction to vehicles of military and para-military forces, which were to be used for defence of the Country.
- Fire caused by burning of inflammable tyres is projected to have caused damage or destruction of public property.
As a result of the discussions made by the Court, the appeal failed and the Gauhati HC affirmed the said order noting,
"There are sufficient material in the charge-sheet against the appellant, as such, the Court does not find any infirmity in the finding returned by the learned Special Judge (NIA) that there are reasonable grounds for believing that the accusation of commission of offences punishable under Chapter IV and VI of UA(P) Act against the appellant is prima face true."
Lastly¸ the Court said that considering the express bar imposed by section 43D(5) of the UA(P) Act, the appellant couldn't be released on bail.
Case title - Akhil Gogoi v. The National Investigation Agency [Case No. : Crl.A./186/2020]