Kerala HC cancels bail of Thwaha Fasal held under UAPA

Kerala High Court on Tuesday cancelled the bail granted by NIA special court in Kochi to one of the two CPM activists held on the charge of Maoist links.

While Thwaha Fasal's bail was cancelled by the high court, bail granted to another accused, Allan Shuaib, was upheld by the court. The court also directed that the trial in the case should be completed in a year.

The arrest of the two by Kerala Police in 2019 and the invoking of UAPA charges triggered a political row in Kerala with even CPI(M) leaders including party general secretary Sitaram Yechuri condemning the invoking of UAPA charges, while Kerala Chief Minister Pinarayi Vijayan justified it.

The case was later transferred to NIA. NIA special court granted bail to the two last September.

In the order, the bench, comprising Justices A Hariprasad and K Haripal, said when individual rights are pitted against national interest and security, the latter should prevail.

"While considering the question whether there is prima facie material to infer commission of offence under Sections 38 and 39 of the Act, the court should have confined to the area of enquiry instead of going haywire. We have no doubt that rights and personal liberty are sacrosanct. Courts are bound to protect it."

"At the same time, individual rights should subserve the national interest.When individual rights are pitted against national interest and security, the latter should prevail.In the result, the order of the trial court granting bail to the respondents cannot be sustained," the court said.

However, considering the case of the first accused (Shuaib), the court did not propose to reverse the NIA court order observing that there are numerous mitigating circumstances in his favour including his age and health.

The court observed that on the date of detection of the crime, he was only 20 years old and materials seized from him are less serious, compared to the materials seized from the possession of the second accused (Fasal). Cancelling the bail granted to Fasal, the court saidhe will surrender before the Special Judge forthwith, failing which the Special Court shall take steps to secure him in custody.

The court also observed that the second accused faces offence under Section 13 of the UAPA for having carried two banners seeking independence of Jammu & Kashmir.

"....We are unable to approve the argument of the learned counsel that this has to be viewed in the light of the protests emerged against the amendment of the Constitution which conferred status of Union Territory on Jammu & Kashmir."

"In our view, the said documents carry the seeds of a secessionist ideology and the very Act is intended to compact such activities," the court said.

The NIA court, while granting bail, had observed the petitioners did not have any influential background and belonged to middle class families.

"I don't find any danger of justice being thwarted by granting bail to the petitioners," it had said.

Fasal and Shuaib, who are students of Journalism and Law respectively and CPI(M)'s branch committee members, were arrested on November 2, 2019 from Kozhikode, causing widespread criticism in the Left-ruled state. The police had allegedly seized objectionable printed and written materials from them which include violent exhortations for civil war, in tune with Maoist ideology. According to the prosecution, such materials were more volatile, even exhorting secession of the country after liberating Jammu & Kashmir. The CPI(M) in Kerala had expelled them from the party following their alleged link with Maoists.

With PTI inputs