A Special NIA Court, in Mumbai, has held that a police officer's internal report can be considered while rejecting the bail application of an accused even after a charge sheet has been filed, if the investigating agency was granted permission for further investigation.
Special judge DE Kothalikar cited a last-minute report by an Assistant Investigating Officer to the Superintendent of Police NIA while rejecting 83-year-old tribal rights activist, Father Stan Swamy's bail application, on Monday.
If the Court is not supposed to take into consideration contents of the case diary, in that case, there is no point to grant permission for conducting further investigation, the judge observed, rejecting Father Stan's contention that a case diary could not be used to refuse him bail when the charge sheet has already been filed.
In the report, the officer claimed that he had analysed documents and come to the conclusion that Father Stan and his NGO Bagaicha were "deeply involved in facilitating maoists interests" because they have "deep rooted" association with another tribal rights organisation, Visthapan Virodhi Jan Vikas Andolan (VVJVA), which is a "front organisation" of the banned CPI (Maoist).
Father Stan, who was arrested on October 8, 2020 from his house in Ranchi had claimed he was being targeted for his social work. Moreover, Bagaicha was dedicated to empowering Adivasis, including fighting against illegal detention of minors charged with being maoists, he said.
While the Court has cited controversial letters and 140 emails recovered from Father Stan and the co-accused in the case to observe that from the aforesaid communication, it can be easily said that there is prima facie material against the applicant, that he was involved in carrying out activities further in the objective of the organisation.
The court rejected Father Stan's arguments questioning the authenticity of the documents as something that should be considered at the time of trial.
Father Stan had referred to Section 85-B of the Evidence Act and argued that the investigating officer conveniently missed taking the hash value of his seized electronic record so that evidence can be fabricated. Moreover, the prosecution was relying on inadmissible hearsay evidence.
The court relied on the case of Zahoor Ahmad Shah Watali before the Apex Court where it was ruled that the question of admissibility of those documents will have to be decided in the trial.
The Jesuit priest, through his advocate Sharif Shaikh, had also cited a Caravan report from December 2020, to show that letters were planted on co-accused Rona Wilson's computer. The court said such extraneous material must not be considered, as, the proceeding is sub-judice.
Therefore, making any comments as to the evidence to be placed before the Court, would amount to interference in the administration of justice. In fact, such act is required to be deprecated.
But the court refused to take action against the journal.
Hindi Speaking Witness Can Understand Speech Given in English
A witness to one of the speeches given by Father Stan was cited during the bail arguments. The accused questioned how could a Hindi-speaking witness understand a speech given in English. The court, however, said that the tenor of speeches given by the speakers, one can understand the speech given by other persons, though, it was not in the same language which is known to such persons.
Be that as it may, the fact remains that the applicant had shared the dais and given speech goes to suggest that he was actively involved in the activities in respect of release of the accused persons who were involved in maoist cases, the court observed.
Bar u/s 43D (5) of the UAPA Act
There are reasonable grounds for believing that the accusation of commission of the offences punishable under Chapters IV and VI of the UAPA against the applicant is prima facie true. Considering the express bar imposed by Section 43D (5) of the UAPA, the applicant cannot be released on bail.
The court held that Father Stan could not benefit from the fact that he was neither present at the Elgar Parishad in 2017 nor was he named in the FIR following the violence at Bhima Koregaon, on January 1, 2018.
Considering the nature of allegations made against the applicant, that he was the active member of the Terrorist Organisation, the aforementioned facts cannot be said to be sufficient to tilt the discretion in favour of the applicant.
The also court rejected Father Stan's plea for bail considering his deteriorating health. The judge cited the case of Masroor Vs State of Uttar Pradesh (2009) 14 SCC 286 to observe, if seriousness of the allegations made against the applicant are considered in proper perspective, in that case there will be no hesitation to conclude that the collective interest of the community would outweigh the right of personal liberty of the applicant and as such the old age and or alleged sickness, of the applicant would not go in his favour, so that the discretion to release the applicant can be exercised in his favour.
Case against Father Stan
The NIA has alleged that the priest was actively involved in the activities of banned organisation CPI (Maoist) and that he was taking steps in furtherance of the objectives of the party by recruiting cadres, by raising funds, by creating chaos in the society and by making attempts to overthrow the Government and to establish a parallel Government with military operations. However, the fact remains that the applicant is the member of the Movement, which was declared as Maoist front organisation.