Ms. Jyoti Babasaheb Chorge Vs. State of Maharashtra - Court Judgment

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constitution of india - articles 19 and 21 – indian penal code - sections 120b, 121-a, 124-a, 153-a, 387, 419, 465, 467, 468, 471 - unlawful activities (prevention) act 1967 - sections 10, 13, 17, 18, 18a, 18b, 20, 21, 38, 39, 40(2) and 43d - code of criminal procedure - section 95 – bail – petitioners are alleged to be the members of the communist party of india (maoist) which is a terrorist organization - it has been declared as a 'terrorist organization' – allegation is, petitioners were found in possession of some literature of maoists, including publicity and propaganda material – court held - applicants are young persons and they are in custody more than 18 months - since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question - even if they were impressed by the said philosophy and ideology, still they cannot be said to be members – much less such members as would attract the penal liability of the said organization – petitioners shall report to police station on every sunday - bail application allowed. (paras 35 and 36) cases referred: arup bhuyan vs. state of assam, (2011) 3 scc 377. brandenburg vs. ohio, 395 us 444(1969). state of kerala vs.raneef, (2011)1 scc 784. elfbrandt vs. russell, 384 us 17 19 (1966). comparative citations: 2012 (6) air(bom) r 706, 2013 (1) bcr(cri) 186oral order: 1 these two applications can be conveniently disposed of by a common order, as the applicants are the accused in one and the same case. i.e. sessions case no.655 of 2011 pending before the additional sessions judge, at sewree, mumbai. 2 the applicant jyoti chorge - (in bail application no.1020 of 2012) is the accused no.4, while the applicant sushma (in bail application no.1066 of 2012) is the accused no.2 in the said case. the case is in respect of offences punishable under sections 387 ipc, 419 ipc, 465 ipc, 467 ipc, 468 ipc, 471 ipc read with section 120b of the ipc, and also in respect of offences punishable under section 10, 13, 17, 18, 18a, 18b, 20, 21, 38, 39, 40(2) of the unlawful activities (prevention) act 1967, as amended upto 2008 (hereinafter referred to as 'uap act' for the sake of brevity). there are totally seven accused who have been arrested in the said case and eight more are said to be absconding and wanted. 3 the applicants are alleged to be the members of the communist party of india (maoist) which is a terrorist organization. the central government has declared it to be so by a notification issued on 22 june 2009 whereby the said organization was enlisted in the schedule appended to the said act. the prosecution case is that on 25 april 2011, on certain information, the anti terrorism squad, which is the investigating agency in the present case, arrested one angela sontakke @ angela teltumbde (accused no.1 in this case). certain incriminating articles which are said to be provocative publicity material etc. were found with her. when she was interrogated, she led the police to her house i.e. a room where she was residing with the accused no.2 sushma (applicant in ba no.1066/12). the accused no.2 was present in the said room. the said room was searched and some laptops, mobile handsets, some audio and video cassettes which are said to be the publicity material of the organization i.e. communist party of india (maoists) were found in the said room. the accused no.2 sushma was also apprehended. on the interrogation of the accused no.1, and the applicant sushma, some further information was received by the investigating agency. on that basis, a trap was laid at a pmt bus stop; and on 27 april 2011, the accused no.4 jyoti (applicant in ba 1020/12), and another accused – accused no.3 nandini panjabrao bhagat @ jeny were apprehended. the applicant jyoti was found in possession of blue colour travel bag containing mobile handset with sim card, a battery, some literature of the communist party of india (maoist) organization. the said co-accused nandini bhagat was found in possession of cash of rs.1,90,000/-, some cds, a fake pan card and some other articles. after the arrest of the applicant jyoti, her residential room at bhosari was searched. one anuradha sonule – accused no.5 was found present in the said house. she was ill and was therefore removed to the hospital for medical treatment. during the search of the room where the applicant jyoti was residing, some publicity material/literature of the banned organization communist party of india (maoist), some pocket diaries containing telephone numbers and other details, mobile sim cards etc. were found. 4 the substance of the allegation against the applicants is that they are members of a terrorist organization i.e. communist party of india (maoist). it is also alleged that the applicants were fully aware of the activities of the said terrorist organization, and had knowingly associated with persons indulging into such activities. 5 i have heard mr.sudeep pasbola and ms.sharmila kaushik, the learned advocates for the applicant in ba no.1066 of 2012. i have heard mr.mihir desai, learned advocate for the applicant in ba no.1020 of 2012. i have heard ms.rohini salian, special public prosecutor for the state, at length. 6 with the assistance of the learned counsel, and the learned special public prosecutor, i have gone through the relevant parts of the chargesheet. 7 it is submitted on behalf of the applicants that there is no prima facie case against them. it is submitted that the applicants are not shown to be, or even alleged to be involved in any acts of violence, or any terrorist acts. it is submitted that neither the applicant jyoti nor the applicant sushma was found in possession of any incriminating articles. it is contended that assuming that the applicants were found in possession of certain books, articles and literature, that by itself, would not make them members of the communist party of india (maoists) a terrorist organization. 8 ms.rohini salian, the learned special public prosecutor devoted considerable part of her arguments on highlighting the dangerous activities of the organization, communist party of india (maoist). she submitted that the entire ideology and philosophy of the said organization was dangerous, and was 'destroying the nation'. she submitted that the members of the said organization were resorting to violence and indulging into acts threatening the unity, integrity and sovereignty of india. she submitted that the police and government officials were being attacked and killed by members of the said organization which advocated and propagated violence for achieving its objects. even in the affidavit-in-reply filed by the investigating officer, there is emphasis mainly on the activities of the organization communist party of india (maoist), and that it aims to 'overthrow the government of india'. it is contended that the maoists or naxalites resort to violence committing various serious offences like extortion, abduction, murders, and demolish government institutions in the areas occupied by them. 9 what are the aims and objects of the said organization, and what is the philosophy of the said organization, need not be discussed in details, as, that it has been declared as a 'terrorist organization', is not in dispute. 10 the real question what requires determination is, whether there is a prima facie case of the alleged offences against the applicants, or any of them. 11 the uap act was substantially amended by act 35 of 2008. several drastic provisions were introduced by the said amendment. the learned special public prosecutor referred to various provisions in the uap act and emphasized the definitions of 'unlawful activity', 'unlawful association', and 'terrorist act', as given in the said act. she also referred to the provisions of section 43d of the uap act which curtails the discretion available to the courts in the matter of grant of bail, to a large extent. 12 indeed, the offences punishable under section 17, 18, 18a, 18b, 20, 21, 38, 39, 40(2) of the uap act are of a serious nature, and come within the prohibition imposed by sub-section (5) of section 43d of the uap act. 13 undoubtedly, from the material collected during investigation, it does appear, prima facie, that the applicants were in contact, or had some association with some members or admirers of the communist party of india (maoists). the applicant jyoti, it appears, was found in possession of some literature of the communist party of india (maoists), including publicity and propaganda material. she was in the company of the co-accused jenny @ mayuri bhagat when she was apprehended by the police, and the said mayuri @ jenny was also found in possession of certain articles, allegedly incriminating, including some cash. 14 as regards applicant sushma, she was staying in the same room where the accused no.1 angela was staying and as aforesaid, in the said room, a number of articles which are alleged to be the publicity materials or literature of the communist party of india (maoists), were found. further, it appears that she had secured employment in a different name – shraddha omprakash gurav, and had also opened bank account in the said assumed name, with the object of hiding her identity. 15 however, though a number of charges and some general allegations have been levelled against all the accused, so far as the applicants are concerned, there is no allegation that they have, or any of them has, committed a terrorist act. in fact, such an allegation has not been leveled even against the other accused. the accusation of having organized a terrorist camp, or having recruited any person for terrorist acts, has also not been leveled against any of the present applicants. in any case, there is no material to support such an allegation against the applicants. there is also no material to indicate that the applicants, or any of them, had conspired with any of the other accused to commit a terrorist act, or to organize a terrorist camp, or to recruit any person for terrorist act, etc. all said and done, the allegation against the applicants is of their being members of the terrorist organization viz. communist party of india (maoist). such inference against them is expected to be drawn from the aforesaid material against them. 16 section 20 of the uap act reads as under:- “20. punishment for being member of terrorist gang or organization: any person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.” 17 indeed, the section is widely worded. it lays down that a mere membership of a terrorist gang or organization which is involved in terrorist act would invite punishment: and that too, a drastic punishment inasmuch as the imprisonment that can be awarded for being a member of such a gang or organization, can be for life. grant of bail to a person arrested on such a charge would be difficult in view of the provisions of sub-section (5) of section 43d, as the discretion available to the courts is curtailed thereby. 18 because of these drastic provisions, the concept of 'membership' that has been contemplated in section 20 and incidentally, in section 38 needs to be carefully considered, and properly interpreted in the light of article 19 of the constitution of india. 19 article 19 of the constitution, inter alia, protects the following rights of citizens: (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions. 20 undoubtedly, article 19(2) empowers the parliament to impose, by law, reasonable restrictions on these rights in the interests of sovereignty and integrity of india. section 20 has been enacted as and by way of reasonable restriction on the aforesaid freedoms and rights, guaranteed by the constitution. inasmuch as the said clause imposes restrictions on the aforesaid freedoms and rights, the interpretation thereof has to be in consonance with the constitutional values and principles, and the concept of membership contemplated by the said section, is required to be interpreted in the light of the aforesaid freedoms and rights. 21 it follows that considering from this point of view, the membership of a terrorist gang or organization as contemplated by section 20, cannot be a passive membership. it has to be treated as an active membership which results in participation of the acts of the terrorist gang or organization which are performed for carrying out the aims and objects of such gang or organization by means of violence or other unlawful means. in her oral arguments, ms.rohini salian, the learned special public prosecutor submitted that there was a great danger to the whole nation from the said organization, and that the unity and integrity of the nation was already in danger because of their activities. she submitted that section 20 of the uap act has been deliberately worded very widely by keeping these aspects in mind. she submitted that mere association with such type of people, and sharing their ideology would make a person a member of their organization. 22 it, therefore, becomes necessary to examine the legal position in that regard, by referring to the case-law. 23 in arup bhuyan vs. state of assam, (2011) 3 scc 377, their lordships of the supreme court of india had an occasion to deal with the aspect of membership of a banned/terrorist organization. in that case, the appellant before the supreme court was a member of ulfa and had been convicted of an offence punishable under section 3(5) of the terrorist and disruptive activities (prevention) act 1987 (hereinafter referred to as 'tada act' for the sake of brevity). the provisions of the said section are in pari materia with the provisions of section 20 of the uap act (except for a variation that a minimum sentence is prescribed for the offence under section 3(5) of tada, which is immaterial for our purpose). their lordships noted that section 3(5) of tada made mere membership of a banned organization criminal. their lordships observed that even assuming that the appellant was a member of ulfa, it had not been proved that he was an active member, and not a mere passive member. it was observed that – “mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence (see also the constitution bench judgment of this court in kedar nath singh vs. state of bihar air para 26) (emphasis supplied) (paragraph no.9 of the reported judgment) 24 their lordships went on to quote the following observations of the us supreme court in brandenburg vs. ohio, 395 us 444(1969), which go a step further. “…....... mere advocacy or teaching the duty, necessity, or propriety of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed 'to teach or advocate the doctrines of criminal syndicalism' is not per se illegal. it will become illegal only if it incites to imminent lawless action.” (paragraph no.10 of the reported judgment) 25 their lordships of the supreme court of india expressed agreement with the aforesaid views, and opined that the same would apply to india also, as the fundamental rights in indian constitution are similar to the bill of rights in the us constitution. their lordships ultimately concluded as follows:- “in our opinion, section 3(5) cannot be read literally otherwise it will violate articles 19 and 21 of the constitution. it has to be read in the light of our observations made above. hence, mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.” (emphasis supplied) (paragraph 12 of the reported judgment) 26 even prior to the aforesaid judgment, the supreme court of india had an occasion to consider a similar question i.e. in state of kerala vs.raneef, (2011)1 scc 784. in that case,the kerala high court had granted bail to one dr.raneef – respondent before the supreme court, who was, inter alia, accused of having committed offences punishable under various provisions of ipc, the explosive substances act and the uap act. the allegation was that the said respondent was a member of the popular front of india (p.f.i), alleged to be a terrorist organization. their lordships noted that there was till then, no evidence to prove the p.f.i to be a terrorist organization, but observed that even assuming it to be so, whether all members of the said organization can be automatically held to be guilty, would need consideration. their lordships referred to the observations made by the us supreme court in scales vs. united states, 367 u.s. 203, distinguishing 'active knowing membership and 'passive, merely nominal membership' in a subversive organization. the following observations of the us supreme court were quoted with approval:- the clause does not make criminal all association with an organization which has been shown to engage in illegal activity. a person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. there must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence. (emphasis supplied) 27 again, the following observations of us supreme court in elfbrandtvs. russell, 384 us 17 19 (1966) were also quoted: those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. a law which applied to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. it rests on the doctrine of 'guilt by association' which has no place here. (emphasis supplied) the supreme court of india observed that those observations would apply in india too. it said:- “we are living in a democracy, and the above observations apply to all democracies”. 28 a reference may also be made to another judgment of the supreme court of india in indradas vs. state of assam (2011) 3 scc 380. in that case, the appellant before the supreme court had been convicted of an offence punishable under section 3(5) of tada. their lordships referred to the decision in arup bhuyan's case (supra) and reiterated the observations made therein. support to the views expressed by their lordships was derived from several decisions of the us supreme court, including those referred to earlier. 29 the aforesaid discussion leaves no manner of doubt that passive membership is not what is contemplated by section 20 of the uap act. it is very clear from the observations made by the supreme court that if section 20 were to be interpreted in that manner, it would at once be considered as violative of the provisions of section 19 of the constitution of india, and would be struck down as ultra vires. in fact, their lordships of the supreme court of india have interpreted the concept of membership as an active membership to save the relevant provision from being declared as unconstitutional. 30 the conflict between the issues of public order and social security, on one hand, and the issues of personal freedoms and liberty on the other hand, which sometimes arises, often puts the courts in a dilemma. however, the judicial pronouncements always seem to be striving for a delicate balance in such conflict. the curtailment of civil liberties and freedoms guaranteed by the constitution is held permissible only where the acts in question would involve a tendency to create an imminent danger of disturbance of law, or where the acts would amount to a clear and imminent incitement to violence. 31 it is in the light of the aforesaid discussion that the case of the applicants is required to be considered. the only allegation against the applicant jyoti is that she came to be arrested while acting as a courier for the co-accused, and was found in possession of a bag containing a mobile handset and various types of publicity literature. it is on this basis it is submitted that this shows the involvement of the applicant with a banned organization. i.e. communist party of india (maoist). 32 even in case of the applicant sushma, a similar affidavit in reply has been filed wherein the emphasis is on the dangerousness of the activities carried out by the said organization. it is submitted that certain objectionable articles were recovered from the room where the applicant sushma was residing with the accused no.1 angela. 33 on a careful consideration of the material against the applicants, the contents of the affidavit in reply, and the oral arguments advanced by the special public prosecutor, it is clear that there is no material to establish any nexus between the applicants and some of the leaders/workers of the said organization who are allegedly actually indulging into various violent activities and crimes. there is not even an allegation that the applicants, or any of them had, at any time, met any such persons and had agreed to do any illegal acts. the applicants are not alleged to have handled any arms, weapons or any explosive substances or to have given incitements to commit any particular violent or unlawful act. though some literature was allegedly found with the applicant jyoti, there is nothing to show that the said literature was banned by an order under section 95 of the code of criminal procedure, or any other law. thus, basically the allegations against the applicant is that they are sympathizers of the maoist philosophy, and that they are intending to, or likely to, play an active role in the organization in future. 34 that the possession of certain literature having a particular social or political philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is a shocking proposition in a democratic country like ours. a feeble attempt to put forth such a proposition was made by the learned spp in the oral arguments. such a proposition runs counter to the freedoms and rights guaranteed by article 19 of the constitution. in this regard, a reference may also be made to a decision of the gujarat high court, on which reliance has been placed by shri mihir desai. (criminal miscellaneous application nos.12435 to 12437 and other connected applications, decided on 18.11.2010). the applicants therein had been alleged to be in contact with a person involved in naxal movement and serious charges of offences punishable under section 121-a, 124-a, 153-a, 120-b etc. of the ipc were leveled against them along with offences punishable under sections 38, 39 and 40 of the uap act (as it stood then). certain documents such as agenda of a meeting, in which one of the items was to pay homage to a dead naxalvadiwho was killed in encounter and some literature about revolution and lessons of communist party of india (maoists / leninists) containing, inter alia, features of guerrilla warfare etc.was seized from the applicants. while releasing the applicants on bail, the high court observed that the seizure of the so called incriminating material, by itself, cannot show participation in an activity prohibited by law. it was held that mere possession of such literature, without actual execution of the ideas contained therein, would not amount to any offence. 35 the applicants are young persons. the applicant jyoti is of 19 years and the applicant sushma is of 26 years. they are in custody since april 2011. it appears that they come from a poor family. a number of persons are influenced, and get attracted towards the maoist philosophy because of the oppression of the weaker section which they might have experienced in the social set up. the applicants also, like a number of such persons, might have been influenced and impressed by the maoist philosophy. it has been recognized even by the committees appointed by the government to study the problem of naxalites that it is the social, political, economic and cultural discrimination faced by the poor, that is throwing a large number of discontended people towards the maoists. it is impossible to hold that all such persons are to be treated as members of a terrorist organization, or that they are liable to be punished for having some faith in such philosophy, or for having sympathy for those who propagate such philosophy. it is in this context, that the concept of active membership and passive membership has been judicially evolved. 36 since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. though it appears that they had come in contact with the members of the said organization, and were perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. even if they were impressed by the said philosophy and ideology, still they cannot be said to be members – much less such members as would attract the penal liability – of the said organization. there does not seem to be a prima facie case against the applicants even in respect of an offence punishable under section 38 of the uap act, which expands the scope of the criminal liability attached to the membership of a terrorist organization, inasmuch as, the mensrea in that regard, should necessarily be with respect to such activities of the organization as are contemplated in section 15, and made punishable by sections 16 to 19 of the uap act. 37 mr.mihir desai, learned counsel for the applicant in bail application no.1020 of 2012 rightly submitted that the case against the applicant is based on the assumption or apprehension that later on, they may become active workers of the said organization. in fact, in the course of her arguments, the learned special public prosecutor also urged that the applicants should not be released on bail as in future they were likely to resort to violence and take active part in attaining the goals of the said organization. in my opinion, on such a ground, and on such apprehension, the applicants cannot be denied bail. 38 considering all the aforesaid aspects, i am inclined to release the applicants on bail. however, to ensure that the applicants would face their trial and would be available to the police when necessary, it would be necessary to impose appropriate conditions on them. in this regard, at this stage, i have heard the learned counsel for the applicants. it is submitted that the applicants would be ready to attend the police station, in the area within the jurisdiction, of which they would reside. 39 the learned counsel for the applicant jyoti states that the applicant would attend the dhankavdi police station, if so directed by the court, till the disposal of the case against her. learned counsel for the applicant sushma submits that the applicant is a resident of nagpur, and she would attend the ajni police station, within the local jurisdiction of which she would be residing. in the result, the following order is passed:- the applications are allowed. operative order in bail application no.1020 of 2012 the applicant is ordered to be released on bail in the sum of rs.30,000/- with one surety in like amount, or two sureties in the sum of rs.15,000/- each, on the condition that she shall report to dhankavdi police station, pune, on every sunday, till the disposal of the case against her. the trial court may, on an application made by the applicant, exempt her from such reporting on a given sunday, provided the applicant has remained present in person before the trial court, in the week preceding such sunday. operative order in bail application no.1066 of 2012 the applicant is ordered to be released on bail in the sum of rs.30,000/- with one surety in like amount, or two sureties in the sum of rs.15,000/- each, on the condition that she shall report to ajni police station, nagpur city, on every sunday, till the disposal of the case against her. the trial court may, on an application made by the applicant, exempt her from such reporting on a given sunday, provided the applicant has remained present in person before the trial court, in the week preceding such sunday.