Madras High Court
Mohan vs Union Of India
Author: P.N.Prakash
Bench: P.N.Prakash
Crl.A.No.610 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 13..09..2022
Judgment Pronounced on : 28..09..222
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mr. Justice RMT.TEEKAA RAMAN
Crl.A.No.610 of 2022
and
Crl.M.P.Nos.8132 & 10694 of 2022
Mohan
..... Appellant
-Versus-
Union of India,
Rep. by The Inspector of Police,
National Investigation Agency,
Chennai.
[R.C.No.07/2021/NIA/DLI]
.... Respondent
Petition filed under Section 21 of The National Investigation Agency,
2008, praying to set aside the order dated 03.06.2022 made by the Special
Court under NIA Act, 2008 at Poonamallee, Chennai, in Crl.M.P.No.114 of
2022 in C.C.No.3 of 2021.
For Appellant : Mr.R.Sankarasubbu
For Respondent : Mr.R.Karthikeyan,
Special Public Prosecutor (NIA
Cases)
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https://www.mhc.tn.gov.in/judis
Crl.A.No.610 of 2022
JUDGEMENT
P.N.PRAKASH.J., This Criminal Appeal has been filed against the order dated 02.06.2022 passed by the learned Judge, Special Court under the N.I.A. Act, 2008, at Poonamallee, Chennai, dismissing the discharge petition in Crl.M.P.No.114 of 2022 in C.C.No.3 of 2021 filed by the Appellant (A3).
2. The facts of the case has been captured by this court from Para 2.1 to 2.6 in the order dated 22.04.2022 in Crl.A.No.157 of 2022 which is as under:-
“2.1 One Vivek @ Vivekanandan (A.1) has a Facebook account entitled “Thozhar Vivek”. On 15.08.2020, being our Independence Day, he posted a message in his Facebook account in Tamil, the free English translation of which reads as under:
“The change of regime that happened in 1947 is a sham because it has not got rid of feudalism, imperialism and exploitation of the poor and therefore, August 15th is a farce independence. In order to gain real independence, let us mobilise in the path of war Page 2 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 shown by Naxalbari.” 2.2 Noticing this post, a case in D-1 Tallakulam P.S. Cr.No.1916 of 2020 was registered on 01.09.2020 for the offences under Section 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (for brevity “the UAP Act”) and Section 505(1)(b) IPC by the State police and Vivek (A.1) was arrested on 16.12.2020.
2.3 Based on the orders dated 12.03.2021 passed by the Central Government, the case in D-1 Tallakulam P.S. Cr.No.1916 of 2020 was transferred to the file of the National Investigation Agency (for brevity “the NIA”) and reregistered as RC-07/2021/NIA/DLI dated 14.03.2021.
2.4 The NIA took up the investigation of the case and arrested Suresh Rajan (A.2), the appellant herein, on 08.06.2021 and remanded him in judicial custody.
2.5 Meanwhile, bail was granted to Vivek (A.1) by the Special Court on 05.05.2021 on the ground that the charge sheet was not filed within 90 Page 3 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 days of his arrest, viz., on or before 15.03.2021. The appeal preferred by the NIA thereagainst was dismissed by this Court on 28.06.2021.
2.6 The NIA completed the investigation and filed a final report on 11.06.2021 in C.C. No.3 of 2021 in the Special Court for the offences under Sections 120-B, 124-A, 201 and 505(1)(b) IPC and Sections 13(1)(b), 38 and 39 of the UAP Act against Vivek (A.1) and Suresh Rajan (A.2) and an advocate by name Mohan (A.3).”
3. Since Mohan (A3), the appellant herein, is a differently-abled person, he was not arrested by National Investigation Agency (NIA). The appellant filed a petition in Crl.M.P.No.114 of 2022 in C.C.No.3 of 2021 on the file of the Special Court under Section 227 of Cr.P.C. for discharging him from the prosecution which has been dismissed by the trial court on 02.06.2022, aggrieved by which, he has filed the present appeal under Section 21 of the NIA Act, 2008.
4. The NIA has filed their written objections dated 28.07.2022. Page 4 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022
5. Heard Mr.R.Sankarasubbu, learned counsel for the appellant and Mr.R.Karthikeyan, learned Special Public Prosecutor for the respondent.
6. The learned counsel for the petitioner contended that mere uploading the impugned message by itself would not attract the provisions of The Unlawful Activities (Prevention) Act, 1967 nor sedition under Section 124-A of IPC without anything more. He further contended that under Section 15 of the UAP Act, “Terrorist Act” has been defined which speaks about the commission of physical violence and not “speech”. He further contended that Supreme Court in S.G.Vombatkere v. Union of India, 2022 LiveLaw (SC) 470 has kept in abeyance all pending trial, appeals and proceedings with respect to the charge framed under Section 124-A of IPC and therefore, the impugned order of the trial court rejecting the aforesaid plea is unsustainable. It is his contention that Section 124-A of IPC is in pari materia with sub-section (o) of Section 2 of UAP Act.
7. The learned counsel for the petitioner also contended that within 3 Page 5 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 days after uploading the post, the appellant withdrew the same which shows his good intention.
8. Per contra, the learned Special Public Prosecutor, refuted the aforesaid contentions.
9. In order to appreciate the rival contentions, it may be necessary to extract hereunder the relevant paragraph in the charge sheet:-
“17.22 The investigation reveals that the accused Vivekanandan @ Vivek (A-1) along with accused Suresh Rajan (A1-2) and Mohan @ Advocate Mohan (A-3) had used digital devices and mobile phone numbers to create a Facebook account by the name “Thozhan Vivek” to spread, propagate and support the ideologies of Maoism. On 15.08.2022, 24 minutes past midnight, these accused person Vivekanandan @ Vivek (A-1) along with accused Suresh Rajan (A-2) and Mohan @ Advocate Mohan (A-3) had conspired, knowingly and intentionally uploaded objectionable materials on social media platform Facebook instigating social media users to wage a Page 6 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 war against the nation using violent methods of Naxalbari movement through words and images. The accused person and his accomplices wanted to reach to as many social media users and impressionable youth among the Facebook users as possible and to achieve this end, they had used hashtags predominantly as has tagging a particular word will garner many hits and higher visibility in the cyberspace. The accused held in his possession many incriminating documents, banners, etc. glorifying slain militants belonging to Maoism such as Comrade Kuppudevaraj, Comrade Ajitha, Comrade Manivasam, etc. These accused persons used frontal organizations like Anti Imprerialism Movement, Women Uprising Movement, Centre for Protection of Civil Liberties, etc., to further the conspiracy to excite disaffection towards the Government established by law. The contents of the post were uploaded with an intent to commit an offence against the state and also the posts incite, advocate commission of unlawful activity of taking up arms against the State. Further, the accused persons intended to cause fear and alarm to the public and Page 7 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 induced them to commit an offence against the State and against the public tranquillity.
17.22 During investigation, it has been revealed that the accused person Vivekanandan @ Vivek (A-1), Suresh Rajan (A-2) and Mohan @ Advocate Mohan (A-3) have actively associated themselves and professed to be associated with a terrorist organization with an intention to further its activities. The accused persons themselves and professed to be associated with a terrorist organization with an intention to further its activities. The accused persons claim in videos, interviews and social media that they are associated with CPI (Maoist), a banned terrorist organization under Sl.No.33 of the First Schedule of UA (P) Act, 1967. To further the activity of Maoist organization, Vivekanandan @ Vivek (A-
1) has arranged meetings condoling the death of slain Maoist cadres and conspired with Suresh Rajan (A-2) and Mohan @ Advocate Mohan (A-
3) in condemning the activities of police and central forces directly and indirectly.”
10. A reading of the above shows that the appellant is being charged for promoting ideology of CPI (Maoist), which is a banned terrorist Page 8 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 organization, listed in Sl.No.33 of the First Schedule of UAP Act, 1967. The impugned post on the social media is self-explanatory and it reads as follows:-
njhHh; tpntf; /// August 15 at 12:24 AM Facembook for Android # Vfhjpg;gj;jpa';fspd;
# Mjpf;fj;jija[k;_ # Ruz;iliya[k_; xHpf;fhj///// # epyg;gpug[j;Jt_mikg;ig # ntuWj;J rdehafk; # gilf;ffhj///// # 1947_d;_Ml;rpkhw;wk;_xU # nkhro_ehlfnk! # Mf!;l; 15_nghyp Rje;jpunk! # bka;ahd_Rje;jpuk; gilf;ff # ef;ry;ghhp_fhl;oa tHpapy; ///// # kf;fs;_a[j;jg;_ghijapy; #mzpjpus;nthk;/ [Emphasis supplied]
11. Just because it was withdrawn subsequently, cannot by itself, a reason to discharge the accused from the prosecution. Sub-section (o) of Section 2 of UAP Act,1967 is not in pari materia with Section 124-A of IPC. At the risk of repetition, along with Section 120-B, 124-A, 201 and 505 (1)(b) of IPC, the appellant is being prosecuted under Sections 13 (1)(b), 38 & 39 of UAP Act for being part of a banned terrorist outfit viz., CIP (Maoist) and promoting its ideologies. Whereas Section 124-A of IPC relates to sedition.
Page 9 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022
12. In S.G.Vombatkere v. Union of India, 2022 LiveLaw (SC) 470, the Supreme Court has clearly held as follows:-
“8. In view of the clear stand taken by the Union of India, we deem it appropriate to pass the following order in the interest of justice:
(a) ... ... ... ... ... ...
(b) ... ... ... ... ... ...
(c) ... ... ... ... ... ...
(d) All pending trials, appeals and
proceedings with respect to the charge framed under Section 124-A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused.”
13. A reading of the above shows that, trials under Section 124-A of IPC have been kept in abeyance temporarily, but, it is also stated that the Page 10 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 trial courts can proceed with cases in respect of other offences.
14. Mr.R.Sankarasubbu, placed strong reliance on the observations of the Supreme Court in Thwaha Fasal v. Union of India (Crl.A.No.1302 of 2021 dated 28.10.2021) and contended that mere membership in a banned organization and mere possession of pamphlets, etc., would not by itself be sufficient to prosecute the accused under UAP Act. We carefully perused the said judgement. In that case, the accused were granted bail by the trial court which was cancelled by the High Court. In that context, the Supreme Court, while restoring the bail order of the trial court had made the observations referred to by Mr.R.Sankarasubbu, Advocate. This is not a bail case. It is an application for discharge. The allegations against the accused is uploading a call to follow the footsteps of Naxalbari. This overt act is sufficient to frame charges under the UAP Act.
15. It is trite that a strong suspicion is enough to frame charges as held by the Supreme Court in Pawan Kumar Tomar v. State of Chhattisgarh [(2018) 16 SCC 85]. Therefore, we find no merits in the Page 11 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 present Criminal Appeal and the same deserves only to be dismissed.
In the upshot, this Criminal appeal is dismissed and the order dated 03.06.2022 made by the Special Court under NIA Act, 2008 at Poonamallee, Chennai, in Crl.M.P.No.114 of 2022 in C.C.No.3 of 2021 is confirmed. Consequently, connected MPs are closed.
[P.N.P., J.] [T.K.R., J.]
28..09..2022
Index: Yes/No
kmk
To
1.The Special Court under NIA Act, 2008 at Poonamallee, Chennai,
2.The Inspector of Police, National Investigation Agency, Chennai.
3.The Public Prosecutor, High Court, Madras. Page 12 of 13 https://www.mhc.tn.gov.in/judis Crl.A.No.610 of 2022 P.N.PRAKASH.J., AND RMT.TEEKAA RAMAN.J., kmk Pre Delivery Judgement in Crl.A.No.610 of 2022
28..09..2022 Page 13 of 13 https://www.mhc.tn.gov.in/judis