1. Rule.
Learned APPs, waives service of notice of Rule for respondent - State.
2. These applications are filed under Section 439 of the Code of Criminal Procedure in connection with first information report registered at CR No.I-37 of 2010 with Kamrej Police Station, Surat, for the offences punishable under Sections 120(B), 121(A), 124(A), 153(A) (B) and 201 etc. of the Indian Penal Code and under Sections 38, 39 and 40 of the Unlawful Activities (Prevention) Amendment Act, 2004 (for short "The Act of 2004").
3. According to the complainant, the members and office bearers of Janshakti organization with aid and assistance of C.P.I. Institution have hatched conspiracy for carrying out anti-national and unconstitutional activities and tried to instigate the minority and Aadivasi people by remaining into contact of neighboring State affected with Naxal movements. It is further the case of the prosecution that certain incriminating materials in the form of documents were recovered and it was disclosed from the said material that one Niranjan Mahapatra involved in Naxal activities had contact with the applicants and about 63 documents were seized which included items of agenda of the meeting and one of the agenda item was to pay homage to a dead Naxalvadi who was killed in encounter. It is further stated that one Shri Vishwanath was arrested and from him also 20 documents were seized and it was found that he was Secretary of Central Committee and had co-ordination with Janshakti and Maoist parties. Thus, it prima facie reveals that the applicants though members of Janshakti or similar such organization apparently carried out trade union or tribal movements but in reality were waging war against the nation and their intention was to over throw the duly elected Government established under the Constitution of India. It is further stated that the offences are attracted under Sections 38, 39 and 40 of Unlawful Activities (Prevention) Amendment Act, 2004, since the members like the applicants have affiliation with prohibitory outfit namely C.P.I (ML) mentioned at item No.25 of the Schedule prescribed under Section 2(1) (m) and Section 35 of the Act 2004.
3.1. When the applicants approached the learned Sessions Judge, Surat, for regular bail under Section 439 of the Code, by relying on the affidavit filed by the investigating officer about unlawful activities of the applicants and likelihood of disturbance of law and order and considering the recital of the literature seized by the police, the learned Sessions Judge rejected the bail and, therefore, the applicants are before this Court.
4. Learned advocates for the respective applicants have vehemently contended that the proceedings undertaken by the authority under the State are in contravention to the statutory and constitutional rights guaranteed to the applicants under Code of Criminal Procedure and Articles 19 and 21 of the Constitution of India. It is further submitted that there is no material connecting or linking the applicants with Naxalite outfit scheduled at item No.25 and, therefore, offences registered under Sections 38, 39 and 40 of the Unlawful Activities (Prevention) Amendment Act, 2004, are illegal. The applicants and other colleagues are ventilating their grievances against oppressive measures undertaken by the State authority to disrupt tribal and labour movements for protection of their fundamental rights, undertaken by the applicants. It is further submitted that panchnamas drawn by the investigating officer which are part of the charge sheet are pertaining to State of body of the applicants, about seizing literature and writings of some of the applicants. It is further submitted that a belief in or to subscribe an ideology for a people in any political movement or to voice a protest against exploitation of labourers or tribals by a section of the society cannot be said to be anti-national or amounting to waging war against the nation. It is also submitted that not a single case of violence is reported from the area, where the applicants have carried out their legitimate demand to confer basic rights upon labourers and tribals. It is also submitted that in case of some infration of statutory provisions or sudden expression of anger in a spur of moment on the part of members of Janshakti or any such organization against the State authority or officer, would not constitute any offence as registered. Learned counsels further relied on a reported decision in the case of Manubhai Tribhovandas Patel & Ors. vs. State of Gujarat and Anr. [1972 CRI. L.J. 373] and submitted that production of extracts from the book prescribing a particular philosophy by itself is not punishable under Section 124 of Indian Penal Code. Besides, the applicants have also furnished permanent residential address of a close relative who is working with Central Mine Planning & Design Institute Limited (A subsidiary of Coal India Ltd.) at Nagpur. Considering the above, it is submitted that by imposing suitable conditions about availability of the applicants during trial, they may be enlarged on bail.
5. Learned APPs appearing for the respondent-State has vehemently objected grant of bail to the applicants on the ground that they are involved in serious crimes not only against the society but against the Government duly elected and constituted as per the provisions of the Constitution of India. It is further submitted that there is ample material in the form of literature seized from the applicants that would prima facie reveal that the applicants have contact and connection with prohibited outfit Maoist Organization listed in item 25 of the Schedule of Unlawful Activities Act, 1967. Learned APPs further submitted that after considering the material on record, the learned Sessions Judge has passed a reasoned order rejecting the application for bail of the applicants, which do not require any interference and no case is made out by the applicants for this Court to independently examine the case and to exercise powers under Section 439 of the Code. According to learned APPs nature of the activities of the applicants are such that will attract offences registered under Indian Penal Code and Unlawful Activities (Prevention) Amendment Act, 2004 as registered in the FIR. Besides, whereabouts of the applicants is not known and their presence also cannot be secured at the time of trial and, therefore, also they do not deserve bail and applications be rejected.
6. Having heard learned counsels appearing for the parties, considering the facts and circumstances of the case, prima facie perusal of the record available with the Court since the charge sheet is filed and material placed by the concerned investigating officer about nature of activities, I am of the opinion that the applicants are entitled for discretionary relief under Section 439 of the Code.
6.1. However, it may not be necessary for this Court to weigh the evidence in detail at this stage when charge-sheet is already filed but while exercising the power of discretion under Section 439 of the Code following aspects have prima facie weighed with this Court.
(A) that seizure of incriminating material by itself in absence of any contact or connection with banned terrorist outfit namely C.P.I. (ML) PWG, cannot be said to be an activity prohibited by any law.
(B) forming a union or carrying out a movement in respect of labourers or tribals of the area to protect their statutory right as well as fundamental rights under the Constitution of India against a section of influenced and established group of the society and expression of anger or even writing or authoring any document or material or a book, cannot be considered as an anti-national activity amounting to waging a war against the nation.
(C) that item of agenda only reveal paying tribute to Maoist, who was killed in an encounter with the police in the State of Orissa. It further reveals that certain members of the organization are empowered to form committees and to propagate the ideas and raising voice against oppressive section of the society and such exploitation. That another material which is seized is about revolution and lessons of C.P.I. (ML) Janshakti, Andra Pradesh State, which refer to certain features of Guerilla Warfare, Anti- Landlord Agrarian Commission and type of public protest against the police encounter and operations, according to this Court, possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence. Therefore, if the arguments and submissions made by learned counsels for the applicants are considered vis-a-vis submissions of learned APPs about activities of members of the applicants in the backdrop of Articles 19 and 21 of the Constitution of India, the members of Janshakti Organization like the applicants, cannot be permitted to languish in jail till trial takes place . Therefore, when the applicants have furnished details about their whereabouts and have assured about availability during the course of trial by imposing suitable conditions they are to be enlarged on bail in exercise of powers under Section 439 of the Code.
7. In the facts and circumstances of the case, the applications are allowed and the applicants are ordered to be released on bail in connection with first information report registered at CR No.I-37 of 2010 with Kamrej Police Station, Surat, on executing bond of Rs.10,000/- (Rupees Ten thousand only) each with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that they shall;
not take undue advantage of liberty or misuse liberty;
not act in a manner injurious to the interest of the prosecution;
surrender their passport, if any, to the lower court within a week;
the applicants namely, Jayrambhai Hilalbhai Goswami of Criminal Misc. Application No.12453 of 2010, Makabhai Gangajibhai Chaudhri of Criminal Misc. Application No.12459 of 2010, Kamkhya Narayansinh Ramratansinh Chauhan of Criminal Misc. Application No.12462 of 2010 and Satyamrav @ Satyanarayan Laxmanrav Ambade of Criminal Misc. Application No.12464 of 2010 shall not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
the applicants namely Vishvanath @ Vishnu Vardhrajan Aaiyar of Criminal Misc. Applications No. 12435 of 2010, Niranjan Purshottam Mahapatra of Criminal Misc. Application No.12436 of 2010 and Ramu @ Jambuvant Narayan Pavar of Criminal Misc. Application No. 12437 of 2010 will not enter the State of Gujarat for three months, unless they are called for trial or for marking their presence at the police station;
mark their presence at the concerned police station on the first Sunday of every month between 10.00 a.m. and 3.00 p.m. for three months only;
furnish the present address of residences to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
8. The Authorities will release the applicants only if they are not required in connection with any other offence for the time being.
9. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
10. Bail bond to be executed before the lower court having jurisdiction to try the case.
11. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail.
12. Rule is made absolute to the aforesaid extent in each of these cases. D.S. Permitted.
[ANANT S. DAVE, J.] //smita// Top