Akhil Gogoi vs The State (National Investigation Agency)

SPECIAL LEAVE PETITION (CRIMINAL) NO.2504 of 2023

AKHIL GOGOI …PETITIONER(S)

VERSUS

THE STATE (NATIONAL INVESTIGATION AGENCY) & ORS. …RESPONDENT(S)

JUDGMENT

V. Ramasubramanian, J.

1. Aggrieved by the Judgment of the Gauhati High Court

allowing an appeal preferred by the State (National Investigation

Agency1) and thereby reversing an Order of discharge passed by

the Special Court, NIA, Guwahati, Assam, the person named as

accused No.1 in the criminal case has come up with this special

leave petition.

2. We have heard Shri Huzefa Ahmadi, learned senior counsel Signature Not Verified

appearing for the petitioner and Shri Tushar Mehta, learned Digitally signed by POOJA SHARMA Date: 2023.04.18 16:55:37 IST Reason:

Solicitor General and Ms. Aishwarya Bhati, learned Additional 1 For short, “NIA”

1 Solicitor General appearing for the respondents.

3. A FIR being Chanmari Case No.1688/2019, was registered

against the petitioner and three others on 13.12.2019 for alleged

offences punishable under Sections 120B, 124A, 153A and 153B

of the Indian Penal Code, 1860 read with Sections 18 and 39 of

The Unlawful Activities (Prevention) Act, 1967. NIA took over the

investigation and the FIR was re-registered as RC-13/2019/NIA-

GUW [KMSS-CPI(Maoist)] link case.

4. The petitioner was arrested on 17.12.2019 and a charge-

sheet was filed on 29.05.2020.

5. The application for bail filed by the petitioner was rejected

by the Special Court on 07.08.2020. The challenge to the same

before the High Court as well as this Court proved unsuccessful.

6. However, by an order dated 01.07.2021, the Special Court

(NIA) discharged the petitioner. As a consequence, the petitioner

was released, after suffering incarceration for about 567 days.

7. NIA preferred an appeal before the High Court of Gauhati,

challenging the order of discharge. The said appeal was allowed

by the Gauhati High Court by a Judgment dated 09.02.2023. It is

against the said Judgment that the petitioner, arrayed as

2 accused No.1, has come up with this special leave petition.

8. It is relevant to note at this stage that there were 4 accused

in the criminal case. The Special Court discharged all the four

accused, by its order dated 01.07.2021 and the said Order of the

Special Court was overturned by the High Court. Therefore,

persons arrayed as accused Nos.2 and 3 first came up with

special leave petition in SLP (Crl.) No.2292 of 2023. The said

special leave petition was dismissed by this Court by an Order

dated 17.02.2023, which reads as follows :-

“After hearing learned counsel for the petitioners and learned Solicitor General for the State, we are of the view that the High Court has merely set aside the order of the Special Court and remanded the matter back to the trial court to conduct fresh hearing on the question of framing of charge.

Therefore, the impugned order does not call for any interference at this stage, and hence, the special leave petitions are dismissed.

Pending application(s), if any, shall stand disposed of.”

9. It is only thereafter that the petitioner herein (A-1) came up

with this special leave petition. Therefore, this special leave

petition also deserved to meet with the same fate. But Shri

Huzefa Ahmadi, learned senior counsel pointed out that on one

aspect, the petitioner herein stands on a different footing from

3 accused Nos. 2 and 3. Accused Nos. 2 and 3 were released on

bail even before the order of discharge was passed by the Special

Court and hence there was no threat of their arrest, consequent

upon the order of discharge being set aside by the High Court.

However, in this case, the petitioner is likely to be arrested,

pursuant to the impugned judgment of the High Court, as his

bail application stood rejected upto this Court. Therefore, the

learned Senior Counsel pleaded that if the Court was not inclined

to order notice, the petitioner should at least be protected against

arrest.

10. In view of the aforesaid, this Court ordered notice, for a

limited purpose when this special leave petition came up for

orders as to admission,. The order dated 21.02.2023 passed in

this special leave petition is self-explanatory and it is reproduced

as follows:-

“Let notice be served on the standing counsel for the State (NIA), for the limited purpose of considering the grant of protection to the petitioner from arrest pursuant to the impugned order, returnable on 24.02.2023.

In the meantime, the petitioner shall be protected against arrest in connection with FIR bearing No. RC-13/2019/NIA- GUW dated 14.12.2019, Police Station NIA, Guwahati.”

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11. Therefore, we heard arguments confined only to the question

of protection against arrest.

12. Strongly opposing the plea for protection against arrest, Shri

Tushar Mehta, learned Solicitor General contended: that there are

as many as 64 FIRs against the petitioner; that the petitioner is

the leader of a terrorist organization inciting and training

youngsters to take to violence; that the bail application moved by

the petitioner was dismissed upto this Court; that the release of

the petitioner on 01.07.2021 was pursuant to a wrong order of

discharge and, hence, the moment the order of discharge was set

aside by the High Court, the benefit derived by the petitioner on

account of the wrong order of discharge should also be forfeited;

and that in any case, this Court cannot allow this special leave

petition arising out of discharge proceedings, to be converted into

an application for bail. According to the learned Solicitor General,

the above special leave petition deserves to be dismissed and the

law permitted to take its own course and that if in the process,

the petitioner gets arrested, his remedy will be to move a fresh

bail application.

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13. The learned Solicitor General also drew our attention to the

statements of the protected witnesses relied upon by the NIA and

pleaded that the petitioner does not deserve any sympathy.

14. In response, it was argued by Shri Huzefa Ahmadi, learned

senior counsel, that the petitioner had already suffered

incarceration nearly for a period of 18½ months from 17.12.2019

to 01.07.2021; that after the order of discharge, the petitioner has

been a free person for the past more than 21 months; that the

petitioner is a sitting member of the Assam Legislative Assembly,

having been elected in the elections held in 2021; that the FIR out

of which the present proceeding arises, relates to the protest

organized by several political parties and independent

organizations against The Citizenship (Amendment) Act, 2019;

that the allegations revolving around Maoist ideology, allegedly

propagated by the petitioner, are linked to certain statements said

to have been made by the petitioner in the year 2009; that those

statements attributed to the petitioner, even if true, were of the

distant past which have no proximity to the events that led to the

present FIR; that even the statement of a protected witness

extracted in paragraph 26 of the impugned judgment of the High

6 Court clearly shows that the petitioner did not support any

ideology focused on violent methods; and that therefore, the

petitioner deserves to be protected against arrest.

15. We have carefully considered the rival submissions.

16. Before we proceed to consider the rival contentions, we are

obliged to note that the order of discharge passed by the Special

Court was reversed by the High Court on two grounds, namely,

(i) that the prosecution was not granted sufficient opportunity by

the Special Court to respond to the written submissions filed at

the last minute by the accused, running to about 1225 pages;

and (ii) that at the stage of framing of charges, the Special Court

ought not to have entered into minute details. Since the High

Court was reversing the order of discharge only on these two

grounds, the High Court actually remanded the matter back to

the Special Court for a fresh consideration.

17. It will be relevant in this regard to extract paragraph 53 of

the impugned order as follows:

“53. For the reasons stated above, we are of the considered opinion that the entire matter calls for re- consideration by the learned Special Judge, NIA. We accordingly, set aside the impugned order dated 01.07.2021 and remand the matter back to the learned trial court to conduct a fresh hearing on the

7 question of framing of charge against all the four accused persons. In doing so, it will be open for the learned Special Judge to record fresh reasons, in the light of the observations made above, as regards existence or otherwise of materials for framing charge against all or any of the accused persons. It would also be open for the learned Special Judge, NIA to consider, if this is a case where charge can be framed against the accused persons under the UA(P) Act or whether charge needs to be framed against all or any of them only under the provisions contained in the IPC. On such consideration, if it is found that the statements of the witnesses and the documents on record are not sufficient to frame charge against the accused persons under any of the provisions of the UA(P) Act but there are materials to frame charge under the provisions of the IPC, then in that event, the learned court below may invoke jurisdiction under Section 20 of the National Investigation Agency Act, 2008 and transfer the matter for trial by the competent court having jurisdiction in the matter.

18. It is clear from the operative portion of the impugned order

extracted above that the matter is actually at large as on date.

The Special Court is now obliged to hear both parties and take a

fresh call as to whether charges can be framed against all or any

of the accused and, if so, under what provisions of law. It is in

this context that the question whether the petitioner should be

allowed to be sent back to custody, has to be considered.

19. It is true that the application for bail filed by the petitioner,

during the period when investigation was pending, was rejected

upto this Court. But as rightly pointed out by Shri Huzefa

8 Ahmadi, learned senior counsel, this Court recorded in its order

dated 11.02.2021 that it was not inclined to grant bail to the

petitioner “at this stage”. Therefore, the dismissal of the

application for bail at the time when investigation was pending,

is no ground to reject the prayer for protection against arrest, now

made by the petitioner.

20. It is true as contended by the learned Solicitor General that

the present special leave petition concerns only one question

namely whether the Judgment of the High Court reversing the

order of discharge passed by the Special Court, is correct or not.

But it does not mean that the Court, while rejecting the prayer for

a larger relief, cannot even consider the grant of the smaller

relief.

21. Admittedly the petitioner has suffered incarceration for

about 567 days from 17.12.2019 to 01.07.2021. He has been out

as a free man for the past more than 21 months. It is important

to note that his freedom was secured not by an order of bail, but

by an order of discharge passed by the Special Court, which has

now been reversed by the High Court. Nothing has been brought

on record to show that during this period of 21 months, when the

9 petitioner has been a free man, he has indulged in any unlawful

activity. On the contrary, the petitioner got elected to the

Legislative Assembly in the year 2021 and he is now a sitting

member of the Assembly.

22. Except in cases of preventive detention, the purpose of

detaining a person in police/judicial custody, is either to facilitate

fair and proper investigation or as a measure of penalty after

conviction. In this case, (i) the investigation is over and (ii) the

petitioner is not yet a convicted criminal. Therefore, we do not

think that any purpose will be served in allowing the Special

Court to remand him to custody and then enabling him to move

an application for bail.

23. In fact, the offences under the Indian Penal Code alleged

against the petitioner are punishable only with imprisonment for

a period of upto 3 years. It is only the offences alleged under the

Unlawful Activities (Prevention) Act, which are punishable with

larger terms of imprisonment. If the offences under the IPC alone

are taken into account, the petitioner has served, as an

undertrial prisoner, more than half of the maximum period

prescribed under the relevant provisions. Therefore, this is not a

10 case where the petitioner should be allowed to be detained in

custody, especially after having secured an order of discharge,

rightly or wrongly.

24. In view of the above, we are of the considered opinion that

the petitioner is entitled to be protected against arrest and

detention in connection with the FIR in Chanmari Case

No.1688/2019, re-registered as RC-13/2019/NIA-GUW [KMSS-

CPI(Maoist)] by the NIA.

25. Therefore, the special leave petition is disposed of

(i) confirming the Judgment of the High Court in all respects but

(ii) directing the release of the petitioner on bail, pending trial,

subject to such terms and conditions as may be imposed by the

Special Court (NIA) Guwahati. There will be no order as to costs .

……………………………….. J.

(V. RAMASUBRAMANIAN)

……………………………….. J.

(PANKAJ MITHAL)

New Delhi;

April 18, 2023

11 ITEM NO.1502 COURT NO.15 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 2504/2023

(Arising out of impugned final judgment and order dated 09-

02-2023 in CRLA No. 121/2021 passed by the Gauhati High Court)

AKHIL GOGOI PETITIONER(S)

VERSUS

THE STATE (NATIONAL INVESTIGATION AGENCY) & ORS. RESPONDENT(S)

([HEARD BY: HON. V. RAMASUBRAMANIAN AND HON. PANKAJ MITHAL, JJ.] (FOR ADMISSION and IA No.38683/2023-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES )

Date: 18-04-2023 This petition was called on for pronouncement of judgment today.

For Petitioner(s) Mr. Huzefa Ahmadi, Sr. Adv.

Mr. Ninad Laud, Adv.

Mr. Santanu Borthakur, Adv.

Mr. Ivo Dcosta, Adv.

Mr. Karan Mathur, Adv.

Mr. Sahil Tagotra, AOR

For Respondent(s) Mr. Tushar Mehta, Solicitor General Mrs. Aishwarya Bhati, A.S.G. Mr. Kanu Agarwal, Adv.

Mr. Shuvodeep Raoy, Adv.

Mrs. Chitrangda Rastrawara, Adv.

Mr. Rustam Singh Chauhan, Adv.

Ms. B.L.N. Shivani, Adv.

Mr. Arvind Kumar Sharma, AOR

Hon'ble Mr. Justice V. Ramasubramanian pronounced the

judgment of the Bench comprising His Lordship and Hon’ble Mr.

Justice Pankaj Mithal.

12 The Special Leave Petition is disposed of in terms of the

signed non-reportable judgment. The operative portion of the

judgment reads as follows:

“25. Therefore, the special leave petition is disposed of

(i) confirming the Judgment of the High Court in all respects but (ii) directing the release of the petitioner on bail, pending trial, subject to such terms and conditions as may be imposed by the Special Court (NIA) Guwahati. There will be no order as to costs.”

Pending application(s), if any, shall stand disposed of.

(POOJA SHARMA) (RENU BALA GAMBHIR) COURT MASTER (SH) COURT MASTER (NSH)

(Signed non-reportable judgment is placed on the file.)

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