Isabella Mariam

The High Court of Gauhati Single Bench of Justice Mridul Kumar Kalita refused to quash the FIR registered against several petitioners accused of aiding a banned militant outfit under the Unlawful Activities (Prevention) Act, 1967. The Court, however, extended the interim protection earlier granted to the petitioners and directed that they be released on bail in the event of arrest. The Court held that while the allegations warranted investigation, mere appearance of names and numbers in seized documents could not, in itself, justify arrest. Citing precedents on judicial restraint in interfering with police investigations under writ jurisdiction, the Court dismissed the prayer for quashing but allowed pre-arrest protection under Article 226 of the Constitution of India in view of special circumstances. It observed that refusal to extend protection would result in "gross miscarriage of justice."

The petitioners, seven in number in WP(Crl.) No. 9/2023 and one in WP(Crl.) No. 14/2023, sought quashing of the FIR registered in Margherita P.S. Case No. 61/2023 under Section 120B of the Indian Penal Code read with Section 17 of the Unlawful Activities (Prevention) Act, 1967. The FIR was lodged on 25.02.2023 by Sub-Inspector Bhabesh Roy of Ledo Police Outpost. It alleged that certain businessmen, including the petitioners, were financially aiding banned militant organizations such as ULFA (I), NSCM (IM), and NSCM (KYA). The complaint stated that the accused helped the groups by funding weapon procurement and facilitating infrastructure like shelters and camps.

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The FIR came on the heels of another case—Margherita P.S. Case No. 42/2023—during the investigation of which three incriminating documents were seized. These allegedly contained names and phone numbers of the petitioners, with one document referring to petitioner Radha Chetia as "Sahayak (Helper)."

The petitioners, represented by senior counsel, denied the allegations and contended that they were innocent businessmen. They claimed to have been previous victims of militant activities. Specifically:

• In 2018 and 2019, the Managers of Petitioners 1, 2, 3, and 6 were abducted by ULFA.

• In 2022, Petitioner 4 himself was abducted by the banned organization.

• Lekhapani P.S. Cases No. 58/2018, 27/2020, and 140/2018 were registered relating to these incidents.

According to the petitioners, their family members had approached the police but were instead advised to negotiate with militants. No police assistance was received. Consequently, they argued that the FIR was not only baseless but also an abuse of legal process.

Due to the inclusion of offences under the UAPA, the petitioners were barred from seeking anticipatory bail under Section 438 CrPC because of the statutory embargo under Section 43D (4) of the UAPA. Hence, they approached the High Court under Article 226 for relief.

In support of their plea for quashing and protection from arrest, the petitioners cited multiple Supreme Court decisions, including:

• State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335

• Hema Mishra vs. State of UP, (2014) 4 SCC 453

• Arnab Manoranjan Goswami vs. State of Maharashtra, (2021) 2 SCC 427

They argued that the FIR was based solely on the seizure of names and numbers and lacked any corroborating evidence to indicate criminal complicity. They also cited their full cooperation during the period of interim protection granted on 12.04.2023.

In contrast, the State, represented by Senior Government Advocate Mr. D. Nath, submitted that while it was true that some petitioners or their associates were victims of militant activity, others had no such records. It was stated that:

• Abduction cases of Managers of Petitioners 1 and 6 were registered.

• The Manager of Petitioner 5's brother was also reportedly abducted.

• However, no record existed for Petitioner 2 and 3's Managers.

The State insisted that the petitioners did not approach police for help during their crises. The State also cited the discovery of the documents during Margherita P.S. Case No. 42/2023 as indicative of possible criminal links, arguing that a fair and complete investigation was essential.

The Court noted that the investigation had progressed significantly, and the status report submitted by the Additional Superintendent of Police (Crime), Tinsukia, suggested incriminating materials had emerged.

"Though, on perusal of the materials on record, it appears that the petitioners were themselves at some point of time were victim of the harassment by the banned terrorist outfits..." the Court recorded, referring to three police station cases filed between 2015 and 2020.

Nonetheless, the Court observed: "There is a clear accusation made against the present petitioners of having financially helped the ULFA (I), which is a banned outfit. Hence, this is not a case where the allegations made in the First Information Report, if they are taken at their face value, do not constitute any offence."

It further noted: "The allegations made in the FIR are also not so absurd and inherently improbable so as to brush aside the allegations in toto." However, it added: "The veracity or truthfulness of the allegations made in the FIR can be ascertained only after a thorough investigation."

The Court acknowledged the limited scope of judicial review in ongoing criminal investigations, stating: "While exercising the writ jurisdiction, this Court cannot embark upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR."

Quoting from Niharika Infrastructure VBP Ltd Vs. State of Maharashtra, (2021) 19 SCC 401, the Court reiterated: "Criminal proceedings ought not to be scuttled at the initial stage... Quashing of a complaint/FIR should be an exception rather than an ordinary rule."

In discussing Article 226 jurisdiction, the Court stated: "The powers of this Court while exercising writ jurisdiction under Article 226 of the Constitution of India are very wide. However, as observed by the Apex Court, conferment of wide powers requires Court to be more cautious..."

The Court found that "it would be premature to exonerate the petitioners from the accusations... without a thorough investigation reaching its logical conclusion."

Turning to the issue of protection from arrest, the Court acknowledged that Section 43D(4) UAPA restricts anticipatory bail. However, it clarified: "Such a bar is applicable only if a prima facie case is found against the petitioners." It noted that the accusation was "mainly levelled... on the basis of their names and telephone number having been found in the three papers."

Citing Hema Mishra, the Court stated: "While entertaining writ petitions for granting interim protection from arrest, the Court would not go on to the extent of including the provision of anticipatory bail as a blanket provision." Yet, it also held: "Wherever the High Court finds that... it would amount to gross miscarriage of justice... the High Court would be free to grant the relief..."

It concluded: "Under such circumstances, mere finding their names in the documents seized from the members of such terrorist organization, in itself, does not make a case where the petitioners may be left remediless in the event of their arrest."

The Court dismissed the prayer for quashing the FIR, stating unequivocally: "The prayer for quashing of the impugned FIR is hereby dismissed."

However, on the question of protection from arrest, the Court issued a directive extending the earlier interim relief: "Hence, the interim protection granted to the petitioners by order dated 12.04.2023 is required to be continued."

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The Court ordered: "In the event the above-named petitioners in petition of WP(Crl.) No.9/2023 and WP(Crl.) No.14/2023 are arrested in connection with Margherita P.S. Case No. 61/2023 they shall be allowed to go on bail of Rs. 30,000/- (Rupees Thirty Thousand only), each with one surety of like amount to the satisfaction of the arresting authority."

It also imposed two specific conditions:

1. "That the petitioners shall co-operate in the investigation."

2. "That the petitioners shall not directly or indirectly make any inducement, threat or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts of the case before the Investigating Officer."

Finally, the Court disposed of both petitions stating: "With above observation, both the writ petitions are hereby disposed of."

Advocates Representing the Parties:

For the Petitioners: Mr. P. Bora, Senior Advocate; Ms. K. Bhattacharyya, Advocate; Mr. A. M. Bora, Senior Advocate; Mr. M. K. Das, Advocate; Mr. P. Gogoi, Advocate

For the Respondents: Mr. D. Nath, Senior Government Advocate

Case Title: Radha Chetia & Others vs. State of Assam & Others

Neutral Citation: GAHC010053422023

Case Number: WP(Crl.) No. 9/2023 and WP(Crl.) No. 14/2023

Bench: Justice Mridul Kumar Kalita

[Read/Download order]