Ronita Biswas | National Law University, Orissa | 11th January 2020
Abhay Nayak v. State of Chhattisgarh (CRA No. 1213 of 2019)
Facts
The Prosecution case, in brief, is that on 28.01.2017, an information was received by the concerned police that on the road between Bastanar-Dankapara (towards village Kandoli), a banner had been put on along with pamphlets containing anti national contents. Subsequently, the team of Kodenar police reached to the place and found a banner and anti-national contents and few Naxal pamphlets written in English propagating Naxal movement. The police team also found explosive materials and few wires, which were further dug out with proper security. A 7 kg Tiffin bomb with 20m long wire and pamphlets were found. The pamphlets were having signature of ‘Vikalp’ as Spokesperson, Dandakaranya Special Zonal Committee CPI (Maoist) and ‘Abhya’ as Spokesperson, Central Committee CPI (Maoist). This organization had been banned by the Government of Chhattisgarh. The subject crime was recorded u/s 120-B of the IPC, s. 4 and 5 of the Explosive Substances Act, 1908 and s. 38 and 39(2) of the Unlawful Activities (Prevention) Act.
On further investigation, it was revealed that a similar case had been registered at the Darbha Police Station. The police had seized pamphlets and literatures containing propagation of Naxal movement. The Investigating Officer found e-mail ID and mobile number written over the seized articles. On further investigated one ‘Abhay Nayak, R/o Bangalore’ was suspected of comitting the offence.
When the police team reached Bangalore, it got information that the Appellant was not available in the country but was travelling abroad with unknown location. Thereafter, Bastar Police issued Look Out Circular. The Immigration Bureau, New Delhi, informed the Superintendent of Police, Bastar that the Appellant has been taken into custody. On enquiry, the Appellant admitted in his confessional statement that he was propagating Naxal activities. He was engaged as a blogger and spokesperson via its blog and social media sites i.e., Twitter, Google+, Yahoo, etc. to increase urban Naxal cadre and influence urban youths, The Appellant was arrested.
The case revolved around three interconnected appeals under s. 21(4) of the National Investigation Agency Act, 2008 (hereinafter referred as the NIA Act). Three separate orders were passed by the NIA Trial Court rejecting the Appellant’s prayer for his release on bail under s. 439 of the CrPC. He appealed before the High Court to set aside the judgment of the Trial Court.
Appellant’s contention
The counsel for Appellant argued that no diary statement could implicate the Appellant. The police had not been able to recover anything which might justify their allegation of involvement of any terrorist act, against the Appellant.
Referring to the disclaimer in blog-post dated 30.06.2007, the counsel for the Appellant argued that Appellant was not involved in propagating Naxal movement. The Appellant withdrew from the blog post Naxal revolution in August, 2006, but took charge again in August, 2010. The CPI (Maoist) was banned on 27-8-2009; therefore, anything done prior to the said date is not an offence.
The Counsel further contended that any blog post or social media post made in the State of Karnataka would not constitute an offence under the provisions of the Chhattisgarh Special Public Security Act, 2005. In substance, it was submitted that, no charge, as alleged against the Appellant was made out. Therefore, the Appellant was entitled to be released on bail.
Respondent’s contention
The Advocate for the State submitted that the Appellant was a member of over ground cadre of CPI (Maoist) not only before 22-6-2009, but thereafter also. The Appellant was found using the e-mail ID to propagate Naxal movement and ideology. He had opened the blog Abhay Naxal Revolution in the year 2011. He has deleted certain incriminating articles, which were later on recovered during data analysis. The Appellant ran the blog, received e-mails and disseminated to others and hence the Appellant was actively working as member of over ground cadre of CPI (Maoist). He was also involved in on-line recruitment of Naxal cadres.It was further submitted that during data analysis the Appellant was found to be using proxy server to hide his identity. Referring to the diaries written by the Appellant, which have been seized and deposited as articles in the trial Court, it was argued that the diaries contained incriminating material against the Appellant; therefore, he was not entitled for bail.
Held
The Court found that the hand written diary seized from the residence of the appellant contained objectionable and anti-national contents about the Indian Police and Para Military Force. The same was sent to the State Examiner of Questioned Document, Government of Chhattisgarh (Hand Writing Expert). The report revealed that all the writings had been written by one person. The diary also revealed that when the appellant’s blog was data analysed by the Cyber Police Team of Bastar, the appellant was found to have officially crated ‘CPI Maoist Naxalite’ blog and continued blogging on the site. Thereafter, he wrote his blogs as ‘abhaynaxalrevolution’, to hide his overtly and expressly Maoist connection. The appellant was also found to use fake ID number, proxy server and TOR to run his blog, which he did to hide his identity from the Government surveillance. On thorough examination of the appellant’s email-ID, various folders with Naxal contents and anti-national contents including press release, propaganda and audio video attachments having anti-national and provocative contents were found. Mail from superior naxal cadres like Vikalp and Gudsa Usendi and connection with RDF (Revolutionary Democratic Front) and other anti-national organization was also found. The scrutiny also revealed that the appellant was working with Rona Wilson, G.N. Saibaba, etc. The data analysis also found that the appellant tried to contact other Naxal sympathizers including foreigners and journalists for arranging interview with superior Naxal cadres either directly or through virtual media. He had been visiting foreign countries for last one year to promote the naxal ideology and improve naxal movement in India. The investigating police had also found that appellant’s blog post ‘naxalrevolution.blogpost.com’is a mirror website of ‘naxalrevolution-lal salam’, which is totally a Maoist social networking platform.
The Court relied on the decision of the SC in National Investigation Agency v Zahoor Ahmad Shah Watali (2019 5 SCC 1) wherein it was held that while considering the prayer for grant of bail, the material collected by the prosecution so far need not be discarded nor its admissibility is to be considered at this stage. If the case diary and other materials disclosed that the accusation against the accused is, prima facie , true, the bar under the proviso to sub-section (5) of Section 43D of the Unlawful Activities (Prevention) Act, 1967 would be attracted.
The Court held that the material collected by the Investigating Officer revealed that there was reasonable ground to believe the accusations against the appellant, is prima facie, true.
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