The Bombay High Court in its judgment granting bail to activist Gautam Navlakha, an accused in the Elgar Parishad-Maoist links case, has noted that there was no material on record to infer prima facie that he conspired to or committed any terrorist act.
A division bench of Justices A S Gadkari and S G Dige granted bail to Navlakha on Tuesday. The full text of the judgement became available on Wednesday.
"From the material on record, it appears to us that no covert or overt terrorist act has been attributed to the appellant (Navlakha)," the high court said.
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Navlakha, arrested in the case in August 2018, was in November 2022 permitted by the Supreme Court to be placed under house arrest. He is presently residing in Navi Mumbai, Maharashtra.
While granting him bail, the bench stayed the order for three weeks so that the National Investigation Agency (NIA) could approach the Supreme Court in appeal.
"We are of the prima facie opinion that on the basis of the material placed before us by the NIA, it cannot be said that there are reasonable grounds for believing that the accusation against the appellant is prima facie true," the judgement said.
"According to us, the record prima facie indicates that it was at the most the intention of the appellant to commit the alleged crime and not more than it. The said intention has not been further transformed into preparation or attempt to commit a terrorist act," the court said.
The witness statements at the most indicated that Navlakha was a member of the CPI (Maoist) which would attract only the provisions of sections 13 (participating in an unlawful activity) and 38 (membership of a terrorist organization) of the Unlawful Activities (Prevention) Act, the judges noted.
Both these sections provide for a maximum punishment not exceeding ten years.
The court also remarked that the documents, which have not been recovered from Navlakha but mention his name, have "weak probative value or quality".
"The content of these letters/documents through which the appellant is sought to be implicated are in the form of hearsay evidence, as they are recovered from co-accused," it said.
Through these documents and communications, the NIA was trying to establish Navlakha's association with the activities of a terrorist organization.
"The actual involvement of the appellant in any terrorist act cannot be even inferred from any of the communications and or statements of the witnesses. According to us, there is no material to infer conspiracy to commit an offence as contemplated under Chapter IV of the UAPA (terrorist activities)," the HC said.
It cannot even be said at this stage that the provisions of sections 15 (terrorist act), 18 (conspiracy) or 20 (being member of a terrorist organization) can be "prima facie" applied to Navlakha, it said.
The bench also cited the Supreme Court order granting bail to co-accused Vernon Gonsalves which said mere possession of literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any offence under the UAPA.
"Therefore, in the present case, the said documents which have been recovered from the appellant (Navlakha) such as Agenda or Constitution of the Party or other related documents, which allegedly propagated violence, would not attract the provisions of section 15 of the UAPA (terrorist act)," the court said.
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In some of the documents and letters addressed to each other by the co-accused, the name "Gautam" could be another person by the name Gautam @ Sadha who is a central committee member of the CPI (Maoist), it said.
"Therefore, it cannot be safely inferred that it is the appellant (Navlakha) who has been referred to in those documents. At this stage prima facie, we cannot presume that 'Gautam' is the same person as the identity of the said 'Gautam' is yet to be established beyond reasonable doubt by the prosecution," the HC said.
Referring to the documents submitted by the NIA where the writers have expressed their intention to cause fatality to politically influential persons or cause tremendous disturbance in society at large, the court said, "The appellant only being a member of the party cannot be prima facie held to be a co-conspirator to it." The court also refused to accept the NIA's claim that Navlakha had connections with Pakistan's Inter-Services Intelligence (ISI) as he had written a letter to a US court judge seeking clemency for Ghulam Fai (a US-based Kashmiri separatist).
It appeared that Navlakha had written the letter in his individual capacity, and at the most it can be said, being a member of his party, the judges said.
He was in jail for three years and the trial court was yet to frame charges in the case, and hence the possibility of the trial being concluded in near future was very bleak, the court said.
The case against Navlakha and others originally related to alleged inflammatory speeches made at the Elgar Parishad conclave held in Pune on December 31, 2017. Pune Police, who probed the case initially, claimed that the conclave had been backed by the Maoists, and the speeches triggered caste violence the next day near the Koregaon-Bhima war memorial in Pune district.
