THWAHA FASAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Leave granted. These two appeals take exception to the Judgment and Order passed by a Division Bench of Kerala High Court in the appeals preferred by the Union of India under sub-section (4) of Section 21 of the National Investigation Agency Act, 2008 (for short "the NIA Act"). The appeals before the High Court arose out of the Order dated 9th September 2020, passed by the learned Judge of the Special Court appointed to conduct the trial of National Investigation Agency cases at Ernakulam in Kerala. By the said Order, the learned Judge of the Special Court For NIA Cases, granted bail to the accused no.1 Allen Shuaib and the accused no.2 Thwaha Fasal.

(2.) A First Information Report was registered against the accused nos.1,2 and 3 for the offences punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 (for short "the 1967 Act"). The Offence was registered by Pantheerankavu Police Station in Kerala. Later on, the investigation of the case was transferred to National Investigation Agency (for short "NIA") established under the NIA Act.

(3.) The accused no.3 is absconding. On completion of investigation, a charge sheet was filed by NIA against the accused nos.1 and 2. Offences punishable under Sections 38 and 39 of the 1967 Act as well as under Section 120-B of the Indian Penal Code (for short "IPC") were alleged against the accused no.1. The same offences were alleged against the accused no.2. In addition, an offence punishable under Section 13 of the 1967 Act was also alleged against the accused no. 2. Before filing of charge sheets, bail applications moved by the accused nos.1 and 2 were dismissed and the order of dismissal was confirmed by High Court in appeals preferred under sub-section (4) of Section 121 of the NIA Act. After investigation was transferred to NIA, the accused no.2 applied for bail which was dismissed by the learned Judge of the Special Court. After filing of charge sheet, fresh applications were filed by the accused which were allowed by the learned Judge of the Special Court by the Order dated 9th September 2020. By the impugned Judgment and order, the appeal preferred by the Union of India against the order of the Special Court was partly allowed. The High Court proceeded to set aside the order granting bail to the accused no. 2. However, the order of the Special Court granting bail to the accused no.1 was confirmed by the High Court. The appeal arising out of Special Leave Petition(Crl.) No. 2415 of 2021 has been preferred by the accused no. 2 and the appeal arising out of Special Leave Petition (Crl.) No. 5931 of 2021 has been preferred by the Union of India for challenging that part of the impugned Judgment and Order by which the order of the Special Court granting bail to the accused no.1 has been confirmed. The accused nos.1 and 2 were apprehended on 1st November 2019. The accused no.1 who was born on 27nd August 1999 was 20 years old at that time and the accused no.2 who was born on 5th August 1995 was 24 years old at that time. As noted by the Special Court, the accused no.1 was a law student at that time and the accused no.2, while working and earning his livelihood, was pursuing his studies in Journalism through a Distant Education Programme.