"Speech contained sharp criticism of CAA but no incitement to violence:" Special Court discharges Akhil Gogoi in UAPA case for anti-CAA protests

A special NIA court on Tuesday discharged Sibsagar MLA Akhil Gogoi in a case charged against him under the Unlawful Activities Prevention Act (UAPA) and other IPC offences in relation to the December 2019 protests against the Citizenship Amendment Act (CAA) at Chabua in Assam. .Special Judge Pranjal Das observed that the speech given by Gogoi, which had allegedly led to violence by anti-CAA protesters, did not contain any incitement or calls for violence; rather it contained sharp statements against CAA. The Court, therefore, did not find prima facie case to frame charge against Gogoi to be criminally liable for offences of rioting, unlawful assembly causing damage to property and causing hurt to public official on duty or to hold him liable for terrorism under UAPA. "I am of the considered finding that the materials are inadequate to attribute any act of terrorism to A-1 (Akhil Gogoi) and frame charges against him under the UA (P) Act, 1967. I also come to the considered finding that there is no justification to frame charges against Akhil Gogoi under the charge sheeted penal provisions of IPC or other penal sections and that he is liable to be discharged," the Court ordered.While arriving at the decision of non-existence of prima facie materials the Court observed that it has "kept in mind the principle laid down in para 23 of Zahoor Ahmed Shah Watali that the degree of satisfaction with regard to UAPA for the purpose of charge framing is higher than that while adjudicating bail.”The Court also discharged two other accused, Jagjit Gohain and Bhupen Gogoi in the case but ruled that there was sufficient material to frame charge against a fourth accused, Bhaskarjit Phukan..The case initially arose when an SI of police of Chabua was carrying out law and order duty and a crowd of about 6,000 people allegedly led by Akhil Gogoi caused a blockade and pelted stones, injuring the SI grievously. The SI also claimed that the mob attempted to murder the personnel on duty..A chargesheet after investigation was drawn against four accused persons under the Indian Penal Code and under Section 16 of the Unlawful Activities Prevention Act..The defence submitted that materials and evidence on record was not sufficient to frame charges..The Court examined the statements of witnesses some of whom stated that Gogoi had addressed a large gathering near Chabua Railway Station where he gave provocative speeches after which the crowd turn violent and started pelting stones. Some other witnesses gave different statements attributing vandalism to the protesters instead of Gogoi. The Court, therefore, said that the content of the speech given by Gogoi would assume relevance in this context. .It, therefore, examined the speech only to conclude that there was no incitement of violence in the speech. "I find that though it contains some sharp political statements and criticism with regard to CAB, there is no incitement to violence. I also do not find incitement / instigation to damage property or obstruct public officials," the special judge observed. The tone and tenor of the speech might have been aggressive but there was no incitement to violence, the Court said. "If the contents of the speech of Akhil Gogoi do not contain instigation of violence etc., simply the statements by some of the witnesses about Gogoi giving provocative speech leading to violence could not relied on in my considered view to impose criminal liability on Akhil Gogoi," the Court made it clear. .In this regard, the Court also said that in large gatherings, where speeches are delivered on contentious issues, it is possible for the crowd to get excited and some unruly elements therein might take undue advantage of the situation to indulge in unacceptable behavior."The omission on the part of A-1 (Gogoi) as revealed by the statements of some witnesses is that after some vandalism started, he did not do anything to stop it. However, in my considered view, that in itself would not impose criminal liabilities on him , though it might have been his moral responsibility to try and do something about it," the Court stated. .Interestingly, the Court also referred to the recent decision of the Delhi High Court in Asif Iqbal Tanha v. State of NCT Delhi in which the High Court had granted bail to Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha, accused under UAPA in relation to Delhi Riots of February 2020. .[DELHI RIOTS] Foundations of our nation can't be shaken by protest by college students; UAPA not for usual offences: Delhi High Court .The special court conceded that the Delhi High Court decision in Asif Iqbal Tanha v. State of NCT Delhi is not considered a binding precedent on the court due to Supreme Court order to that effect. However, it added that the principles stated in the judgement may be studied and analysed where the High Court delved in detail on the subject of anti-terrorism law in India and laid down certain principles. .“That such strict UA(P) Act, 1967 being a stringent penal statute has to be interpreted strictly and such strict interpretation of UA(P) Act is necessary so that it does not rope in persons whom the legislature never intended to punish…. the Hon’ble Delhi High Court held that the intention of UA(P) Act of bringing terrorist activity within its cope is to cover matters of profound impact on the defence of India, nothing more or nothing less.”.The judge also relied on the judgement by the Supreme Court in NIA vs. Zahoor Ahmad Shah Watali that stated,“The degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, for the purpose of adjudicating bail is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. Thus, for framing of charge, a higher degree of prima facie satisfaction is necessary than one required for the purpose of deciding the question of bail under the UA (P) Act, 1967.”.The omissions and commissions of Gogoi as revealed by the materials cannot be prima-facie said to be a terrorist act done with the intention of threatening unity, integrity, sovereignty and security of India or a terrorist act done with the intention to strike terror in the people, the Court concluded discharging him. .[Read Order]