IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 Bail Appl..No. 265 of 2008() ---------------------------- CRIME NO.780/07 OF THRIKKAKARA POLICE STATION .................... PETITIONER/ACCUSED (UNDER JUDICIAL CUSTODY) ------------------------------------------------------------ GOVINDANKUTTY, AGED 60, S/O.SHANKUNNI MENON, PEROOR HOUSE, VADAKKEKOTTA BHAGOM, THRIPUNITHURA. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA RESPONDENTS: COMPLAINANT AND FORMAL PARTY ----------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ASSISTANT COMMISSIONER OF POLICE, THRIKKAKARA. BY SRI.P.G. THAMPI – D.G.P. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 265 OF 2008 ------------------------------------------------- Dated this the 1st day of February, 2008 ORDER Application for regular bail. The petitioner faces allegations in a crime registered for offences punishable, inter alia, under Secs.124A and 153B of the IPC and Sec.13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (for short `the Act'). 2. The learned Director General of Prosecutions submits that during the pendency of this petition, a report has been filed before the learned Magistrate to include the allegation under Sec.20 of the said Act also. 3. The police, on the basis of certain events that have taken place recently, started suspecting that unlawful naxal activities are going on in the State of Kerala and the State of Kerala is being treated as a haven by persons indulging in B.A. No. 265 OF 2008 -: 2 :- such unlawful activities. The petitioner was arrested on the basis of some information collected by the police on 20/12/07. His premises were raided. Certain pamphlets, booklets, publications etc., were recovered. He is the Editor of a publication by name “Peoples March”. He is the Editor of a website by the said name. That website was earlier blocked by the State. Subsequently, he is operating another website for propagating his ideologies and activities. The petitioner continues in custody from 20/12/07. 4. The crux of the allegations against the petitioner is that he is a person with a shady past. He was a convict in murder case in Andhra jail for murdering his near relatives. While undergoing imprisonment as a convict in that murder case, he had come into contact with the naxal activists in the jail. He came out of the jail and transformed as a naxal activist. He has allegedly been indulging in unlawful activities. He has been spreading seditious literature. He has been working to create disaffection against India in the minds of persons reading such publication and visiting such website. In these circumstances, it is alleged that the petitioner has committed the offences alleged against him. 5. It is further alleged that he is an activist of the CPI B.A. No. 265 OF 2008 -: 3 :- (Maoist). Two terrorist organisations which are listed in the Schedule to the Unlawful Activities (Prevention) Act, 1967 as terrorist organisations - CPI (Marxist-Leninist) – People's War and Maoist Communist Centre have merged to form CPI (Maoist). Both those organisations are terrorist organisations. Under the Schedule to the Act, not only those organisations but all other Formations and Front Organisations of theirs also fall within the sweep of Terrorist Organisation as per the stipulations in Entry Nos.24 and 25 of the Schedule. The petitioner is thus alleged to be an activist of the CPI (Maoist) which a conglomeration of the period CPI (Marxist-Leninist) and Maoist Communist Centre listed as item Nos.24 and 25. In these circumstances, it is contended that the petitioner is guilty of the offences alleged against him. Investigation is at an early stage. Active efforts are being made to collect all relevant information. Release of the petitioner on bail at this stage would seriously hamper the smooth course of the investigation. Investigators may be given further time to complete the investigation, submits the learned D.G.P. 6. The learned counsel for the petitioner, on the other hand, contends that the police is involved in naked deprivation of liberty of a citizen only for the reason that he holds certain B.A. No. 265 OF 2008 -: 4 :- opinions and ideas which appear to be not acceptable to the police. Even allegedly he is not involved in any terrorist or extremist activities. Accepting the entire materials collected now, all that is revealed is that the petitioner has been editing a printed magazine and a website. The learned counsel for the petitioner submits that the printed magazine - “Peoples March”, is duly registered under the relevant provisions of law. It is contended that, in these circumstances, it would be unjustified deprivation of the right to liberty of the petitioner and to compel him to undergo incarceration any longer to facilitate further progress of the investigation. The petitioner may, in these circumstances, be enlarged on bail subject to any appropriate terms and conditions, it is prayed. 7. The learned D.G.P. submits that the investigation is at an early stage. Police have collected information to link the petitioner with the activities of the CPI (Maoist) which is banned in various States of India. The police is involved in the endeavour to collect relevant materials. The materials available at present certainly justify and demand such thorough probing. A reading of the editions of the “Peoples March” which have admittedly been published by the petitioner as an Editor is sufficient to prima facie drive home the allegations against the B.A. No. 265 OF 2008 -: 5 :- petitioner. At any rate, the Investigator may be given some further time to complete the investigation, submits the learned D.G.P. 8. The learned counsel for the petitioner, on the contrary, submits that there is nothing to show that CPI (Maoist) is an unlawful association which is declared to be so under Sec.3 of the Act. He further submits that the contention that the petitioner has committed a crime by editing and publishing the “Peoples March” is unjustified as the petitioner has done it openly after getting the requisite sanction from the authorities and the petitioner has from time to time been submitting copies of that publication to the persons responsible under law to receive and scrutinise them. The learned counsel for the petitioner submits that the allegation that the petitioner is a member of a terrorist organisation is not justified. He is not a member of the CPI (Maoist) or of the CPI (Marxist-Leninist) – People's War or Maoist Communist Centre. In these circumstances, the petitioner is, at any rate, entitled to be released on bail and the objections of the learned D.G.P. are bound to be rejected. 9. I have considered all the relevant inputs. In order to attract the allegation under Sec.13(1)(b) of the Act, I do note B.A. No. 265 OF 2008 -: 6 :- that it is not necessary that the association must be declared to be an unlawful one under Sec.3 of the Act. A plain reading of Sec.13(1) of the Act makes it clear that what is made punishable under Clauses (a) and (b) is taking part in, commission, advocating, abetting and advising or inciting the commission of any unlawful activity. An “unlawful activity” is defined in Clause 2(1)(o) of the Act and it is not at all necessary that a declaration is under Sec.3 of the Act ought to be there of any organisation to make an activity unlawful under Sec.2(1)(o) of the Act. In these circumstances, the contention that the CPI (Maoist) has not been declared to be an unlawful one under Sec.3 of the Act cannot be reckoned as an effective shield against the allegation raised under Sec.13(1) of the Act. 10. Be that as it may, the next question is whether the activity alleged against the petitioner can be held to be an unlawful activity under Sec.2(1)(o) of the Act. I shall not embark on any detailed discussions on merits of the rival contentions or express any final opinion on those questions. Suffice it to say that I take note of the definition in Sec.2(1)(o) which shows that any action by words spoken or written which causes or is intended to cause disaffection against India or which is intended to disrupt the sovereignty and territorial integrity of B.A. No. 265 OF 2008 -: 7 :- India would be “unlawful activity” notwithstanding the fact that the association of which the accused is a member is not declared to be an unlawful one under Sec.3 of the Act. 11. What survives for consideration is only whether the admitted material published would fall within the mischief of Sec.2(1)(o) of the Act. I need only mention now that at the moment and with the available inputs – to satisfy myself about this I have gone through the editorials in the copies of the “Peoples March” which are admittedly authored by the petitioner that I am unable to agree that the allegations are unfounded as to hold that no further investigation in the matter is necessary or warranted. I shall stop short there. But I find merit in the submission of the learned counsel for the petitioner that in the very nature of the allegations, the Investigator has the obligation to complete the investigation at the earliest. I fully endorse that view. 12. Thus, while holding that the arrest and detention of the petitioner is justified and that the Investigator is entitled to further time to complete the investigation, I do certainly take the view that the petitioner shall be at liberty to move this Court for bail again at a later stage of the investigation – not, at any rate, prior to 15/2/08 by which date I expect the Investigating B.A. No. 265 OF 2008 -: 8 :- Officer to make all endeavour to complete the investigation. All relevant materials against the petitioner must be attempted to be collected by then and this Court must be apprised of such materials by the said date. 13. This bail application is, in these circumstances, dismissed with the above observations. (R. BASANT, JUDGE) Nan/