Madras HC upholds bail to man booked over FB post

Chennai: The Madras High Court recently upheld the decision of a special court of the National Investigation Agency (NIA) to grant default bail to a man accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) over a Facebook post

Chennai: The Madras High Court recently upheld the decision of a special court of the National Investigation Agency (NIA) to grant default bail to a man accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) over a Facebook post. The court dismissed two criminal appeals filed in the case by the NIA.

HT Image

A bench of Justices PN Prakash and R Pongiappan in their order dated June 28 said that the state had acted in a cavalier manner and that there was no diligence in the investigation. The order was made public on Monday.

The appeals challenged the validity of two orders passed by the Special NIA Court in Chennai on May 5 which rejected police custody of the accused and granted him bail.

Accused, Vivekanandan alias Vivek, allegedly uploaded an offensive post in his Facebook account, for which, Inspector of Police of Thallakulam Police Station in Madurai, registered a case under Section 13(1)(b) of the UAPA and Section 505(1)(b) of the Indian Penal Code (IPC). He was arrested in December 2020. He was produced before the Judicial Magistrate No.2 in Madurai who remanded him to custody. “Seemingly, the Judicial Magistrate No.II, Madurai, has been placing Vivek (A.1) in judicial remand from time to time under Section 167(2) Cr.P.C.,” the court said in its orders.

The NIA filed a chargesheet against Vivek and several others on June 11 and according to their press statement released then, his Facebook post in April denigrated Independence Day celebrations as a sham.

“Investigation and scrutiny of posts uploaded on social media accounts of accused persons have revealed their support and active role in propagating (the) cause and ideology of proscribed terrorist organisation CPI (Maoist) and its frontal organisations,” the agency said in a statement.

Earlier, local police had said that the post was ‘against the spirit of democracy’, threatened the integrity of the country and therefore posed a threat to public peace.

The time period prescribed for default bail under Section 167 Cr.P.C. is 90 days and the 90th day fell on 15 March 2021. An order from the union government dated three days before that had transferred the case to the NIA. The central agency re-registered the case. However, the Thallakulam Inspector was proceeding with the investigation of the case in terms of Section 6(7) and 10 of the NIA Act. “Seemingly, another FIR in Cr.No.2594 of 2020 was registered against Vivek in which he was arrested by the State police and was being remanded in custody from time to time,” the court said.

Since a charge sheet was not filed either by the State police or by the NIA before the 90th day, Vivek filed a petition for default bail under Section 167(2) Cr.P.C. before the Judicial Magistrate No.II, Madurai, who returned the petition on the ground that the case has been transferred to the NIA.

It deprived him of his indefeasible right to be released on bail, Vivek said in his application to the NIA’s special court in Chennai. The Special Court heard Vivek’s plea for bail and the NIA seeking police custody and passed two separate orders.

Human rights activists point to the excessive use of the draconian UAPA. “It is obvious that the FB post cannot and did not disturb public peace or attract any offence defined under UAPA,” says senior advocate and human rights activist Sudha Ramalingam. “This is just throttling the fundamental right of freedom of expression and speech. For a post that went unnoticed from April to Sept or so when the case was registered, there is no material to substantiate the accusation. But the courts did not go into the merits of the case. Now what is granted is bail on technical ground.”

The court said given the facts of the case at hand, the Supreme Court judgement in Rambeer Shokeen vs. State (NCT of Delhi), as relied on by counsel for the NIA, cannot be pressed in this case. “In this case, we find that there was absolutely no diligence at all,” the court said.

“The State should have ensured that Vivek was being produced before the Principal District and Sessions Court, Madurai, for remand. Unfortunately, they did not do that,” the court said. “However, the Public Prosecutor had approached the Principal District and Sessions Court, Madurai, with a manifestly defective report under Section 43(D)(2) of the UAPA by combining two crime numbers. This shows how the State had acted in a cavalier manner for extinguishing the statutory right of a prisoner to be released on default bail…”

“The case alleging that the accused Vivek had posted on Facebook a message that was against the spirit of democracy is as vague as it can be,” says Ramalingam. “That it was threatening the integrity of the country is vaguer and should be seen as conjecture with no factual information.”