"Young Children Are Idealists, Inspired By Certain Ideology. But There is No Allegation That They Have Intention To Further The Activities": Sr.Ad. Basant Argues In Allan Thwaha UAPA Case

The Supreme Court on Thursday remarked that the NIA's argument that sanction for prosecution under the UAPA for association with a banned organisation extends to the offence of membership of the organisation itself would result in a situation where a person, for being a member, attracts life imprisonment, but if the member, with the intention to further the activities of the organisation, does any act, he invites a maximum of 10 years. The bench of Justices Ajay Rastogi and A. S. Oka was hearing the SLP filed by the NIA challenging the Kerala High Court judgment affirming the trial court's order granting bail to law student Allan Shuhaib in a UAPA case registered over alleged Maoist links. Also listed was the petition filed by Allan Shuhaib's co-accused Thwaha Fasal, a journalism student, challenging the very same judgment of the Kerala High Court which set aside the bail granted to him by the Special NIA Court.On Wednesday, ASG S. V. Raju, for the NIA, argued that even though the charge of section 20 of the UAPA (Punishment for Being Member of Terrorist Gang or Organisation; which is extendable to life imprisonment) is dropped from the chargesheet in respect of Shuhaib and Fasal, the court may discern it from the revelations in the chargesheet of the incriminating material recovered from them and their conduct. The chargesheet books the 2 accused for section 38 (person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities) and 39 (person who, with intention to further the activity of a terrorist organisation, invites support, not restricted to provide money or other property, for the terrorist organisation, or arranges, manages or addresses a meeting or assists in doing so when he knows the meeting is to support the terrorist organisation) of the UAPA. Both sections 38 and 39 provide for a maximum sentence of 10 years or fine or both. Senior Advocate R. Basant, for Shuhaib, yesterday pointed out that the NIA has not obtained sanction under Section 45 of the UAPA to prosecute the accused under Section 20. So, the Special Court is barred from taking cognizance of the offence under Section 20.The ASG Today urged, "If you look at the offence under 38, it includes an offence under 20. 38 is entitled 'Offence relating to membership of a terrorist organisation'! Such an offence is ordinarily committed by a member! So if sanction is granted under 38, there is an implied sanction under 20"At this, the bench observed, "Is the title of the section conclusive? Ultimately, the main section (38) does not refer to membership at all. You are not supposed to be a member as is required in 20. Active participation or association is what is needed. So while 20 may cover 38, but 38 may not cover 20"The bench continued to note, "Just see how it will work if your submission is accepted prima facie- it creates a situation where if you are member, you will be sentenced to life, but if you are a member and with intention to further the activities of the organisation, you do something, then you are covered by 38 and 39 and you can be let off with 5 years also"Next, Justice Rastogi indicated section 45 of the UAPA which provides that no court shall take cognisance of any offence without the previous sanction of the Central Government, or a state government, as the case may be; and that the sanction for prosecution shall be given only after considering the report of such authority appointed by the government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation to the government."Section 45 envisages an independent application of the mind. Even if you have not proposed section 20, the authority can consider it on the basis of material and final report. It can accord you sanction for even that which you have not demanded. And it is not bound by what you have demanded, it can refuse also", said the judge.Justice Oka added, "A sanction order is given after a detailed exercise is done. It is by a committee of a retired judge. On the basis of the committee's recommendations, the sanction is allowed""There was application of mind only for 38,39 and not for 20 because we never asked for 20", persisted the ASG. He added that at the stage of bail, this is not a relevant consideration."Why? In the FIR, 20 was there. In the chargesheet, it is not there. The sanctioning authority also consciously examined the final report", said the bench. "Sanction is required at the stage of cognisance. If, suppose a person is arrested at an initial stage after registration of FIR and he is detained, an argument that there is no sanction would not mean that the court will not go into the offence. Ultimately, the question is of allegations. If there is no sanction, we will get the sanction. It is a technical part. We will apply for sanction and we will get it and we will produce it"The ASG submitted."You may do whatever you...

"Young Children Are Idealists, Inspired By Certain Ideology. But There is No Allegation That They Have Intention To Further The Activities": Sr.Ad. Basant Argues In Allan Thwaha UAPA Case

Mehal Jain

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