"The Tone And Tenur Of The Speech Might Have Been Aggressive But His Speech Didn't Directly Incite Violence": NIA Court Grants Bail To Activist Akhil Gogoi [Read Order]

The Special NIA Court (Guwahati) has granted bail to Activist Akhil Gogoi in connection with NIA investigated case no. RC-01/2020/NIAGUW (Chabua Police Station Case).It was alleged that Akhil Gogoi had led a crowd of 6000 persons and caused economic blockade and pelting of stones, one of hit the face of the informant and injured him grievously.It was also alleged that the mob led by Akhil Gogoi tried to murder the police personnel on duty. On the basis of the said ejahar, Chabua P.S. Case No. 289/2019 was registered under Section 120-B/147/148/149/336/307/353/326 of IPC and investigation started.Subsequently, on the prayer of IO Section 153 A/153B IPC r/w Section 15 (1) (a), /16 of the UA(P) Act were added.The case against him was investigated under S. 15 (1) (1)/16 of the UA(P) Act, under which Charges sheet dated 26-06-2020 was submitted against Akhil Gogoi under Section 16.It may be noted that Section 16 belongs to Chapter IV of the Act. The Subjects areas of this penal section of the UA(P) Act is related to Punishment for a "Terrorist act". While Section 15 of this act defines what a "Terrorist Act" is.Primary question before the CourtPrimarily, the Court had to ascertain as to whether the materials stated in the case diary and charge sheet against Akhil Gogoi, if believed, make out a prima facie case against him especially under section 15/16 of the UA(P) Act.Further, whether the materials stated in the charge sheet upon investigation find some support from the materials in the case diary.Finally, the Court needed to ascertain as to whether there was anything in the existing materials, which make the Accusations against the accused wholly improbable.This exercise was to be done in keeping with the formula enunciated in Jayanta Kumar Ghosh v. NIA, 2010 (4) GLT 1's Judgment with regard to the interpretation to the proviso to Section 43 (D) (5) of the UA(P) ActLegal Analysis done by the Court The Court considered the fact that in a case where the penal provisions include sections falling under Chapter IV and/or VI of the UA (P) and also penal sections punishable with life or death, then the grant of bail, apart from being subject to the standard limitations governing grant of bail, would also be subject to the following 2 limitations:-(a) The bar under section 43 (D) (5) proviso of the UA(P) Act(b) The bar of Section 437 CrPC pertaining to an offence punishable with death or imprisonment of life, subject to the exceptions incorporated therein – if the accused is sick or infirm or women or below 16 years.It may be noted that 43 (D) (5) proviso of the UA(P) Act states,"(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."Further, as per the statutory provision, the test of Section 43 (D) (5) provision of the UA(P) Act has to be ascertained on the basis of the materials in the case diary and charge sheet.In this regard, the Court noted that, it has been reiterated by Full Bench of Gauhati High Court in Rojen Boro v. NIA 2016 (4) GLT (FB) 803, that the legislature has prohibited consideration of any material beyond the case diary or the report made under section 173, CrPC for consideration of Bail.Thus, the Court noted, in the scheme of things, if the accused is facing prosecution under penal provision falling under Chapter IV and/or Chapter VI of the UA(P) Act, first the court has to determine on the basis of the materials in the case diary and/or charge sheet, as to whether there are reasonable grounds for believing that the accusations against the said accused are prima facie true, only if this test is passed in favour of the accused by holding that there are no such reasonable grounds for believing the accusations to be prima facie true, can the court consider the other aspects of the merit of the bail prayer, including the restrictions under section 437 of CrPC, subject to the other standard limitations applicable to a bail petition.Further, the Court said, this is because, if the aforesaid test is not passed in favour of the accused, by holding that there are reasonable grounds for believing the accusations to be prima facie true, then the Court would be barred from granting bail to the accused and it would in a way be academic and futile exercise to go into the other aspects of the merit of the bail prayer of the accused.The Court further analysed the case of Jayanta Kumar Ghosh, the court was of the considered view that the para 76 and 77 of the...

"The Tone And Tenur Of The Speech Might Have Been Aggressive But His Speech Didn't Directly Incite Violence": NIA Court Grants Bail To Activist Akhil Gogoi [Read Order]

Sparsh Upadhyay

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