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Bandh without ‘incitement to violence’ not terror act: Why NIA court cleared Gogoi of UAPA

NIA court also said shutdowns as part of protests, if not proven were held to provoke violence, don't threaten 'economic security of India', which is also categorised as terror act under UAPA.

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New Delhi: Organising or participating in temporary blockades without any incitement to violence is not a terrorist act under anti-terror law UAPA, a special NIA court in Guwahati said Thursday while discharging Raijor Dal chief Akhi Gogoi. The Sivasagar MLA had been facing charges under the Unlawful Activities (Prevention) Act for his alleged role in the violent agitation against the Citizenship (Amendment) Act in the state in December 2019.

Special judge Pranjal Das also said ordinary bandhs, shutdowns as part of some protests, in the absence of evidence to show the same were held to provoke violence, would not come within the ambit of expression “threatening the economic security of India”, which is also categorised as a terror act under the UAPA.

The expression, the judge said, has much graver connotation, but the prosecution material against Gogoi does not establish this offence against him.

There was no evidence to support the police allegation that Gogoi in the garb of protesting against the controversial citizenship law had allegedly conspired to incite hatred and disaffection towards the government established by law and promoted enmity, the judge held.

Gogoi’s intercepted voice calls and speech at the protests did not indicate his involvement in the alleged violence that took place consequent to the bandhs, the court opined. Rather, it showed that Gogoi exhorted participants to protest peacefully, said the court.

Applying the principles laid out in the Kedar Nath case on Section 124 of the Indian Penal Code (IPC), which is sedition, the judge discharged Gogoi under this penal provision too. He noted there was lack of material linking him personally and vicariously to the alleged vandalism and property damage during the anti-CAA protests.

“Protests in a democracy are sometimes seen to take the form of blockades also, even causing inconvenience to citizens. However, it is doubtful whether such blockades for temporary periods, if unaccompanied by any incitement to violence, would constitute a terrorist act within the meaning of Section 15 of the UAPA. That in my mind, is beyond the intention of the legislature,” the order said, setting free three more persons in the case.

Second case in which judge discharges Gogoi

This is the second CAA-related case in which the NIA court has discharged Gogoi. On 22 June, the judge had prima facie found insufficient evidence to charge Gogoi and proceed with trial against him in connection with a case registered in Chabua district.

In custody since his arrest in December 2019, Gogoi walked out Thursday evening.

A discharge usually takes place when the judge comes to prima facie finding that the police have not brought up sufficient material to charge an accused and send the person for trial to prove the allegations.

In its Thursday order, the judge relied upon the law enunciated by the Supreme Court in cases of discharge and said a judge at the stage of charge is merely to sift the evidence to find whether or not there is sufficient ground for proceeding further.

“If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused,” he said.

Also read: Akhil Gogoi walks out of jail after 18 months, NIA court clears him of all charges under UAPA

Charges against Gogoi

The allegations against Akhil Gogoi were that he had conspired to incite hatred and disaffection towards the government established by law, using the passage of CAA as a pretext.

The FIR was lodged at the behest of a sub-inspector on 13 December 2019. According to the complaint, the police officer had received an input that Gogoi had secretly merged his organisation Krishak Mukti Sangram Samiti (KMSS) with the Revolutionary Communist Centre and the latter was later merged with the banned CPI (Maoist). The case was later transferred to the NIA.

As many as 76 people are listed as prosecution witnesses, of which the statements of 19, including two protected witnesses, were recorded during the investigation.

Gogoi’s lawyers drew the court’s attention to his speech and said it only reflected his innocence, as he had appealed to the people not to resort to violence.

It was argued that an overt act is essential to allege an offence under the UAPA, and the same has to be done with the intentions specified in the law.

Intention required to prove terror charges

The court observed that requisite intention is necessary for an act to constitute a terror act under Section 15 of the UAPA. It needs to be proven that the act has been done with the intention of threatening the unity, integrity, security or sovereignty of India or with the intention to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country.

Contents of Gogoi’s speeches weighed heavily with the court, which brushed aside unsubstantiated versions of police witnesses to give him a clean chit.

“From his speeches available on record, Sri Akhil Gogoi (A-1) cannot be charged with any incitement to violence. There are also no materials to link A-1 with vandalism and damage to property that took place during the said CAA protest due to such agitations led by various organizations,” it observed.

In one of Gogoi’s speeches, pointed out by the NIA, he had spoken about stopping transportation of natural resources from Assam. On this, the court noted: “There is no material to indicate that such a stoppage of natural resources from this part of the country to the rest took place as a result of any such statement by A-1 (Gogoi).”

The court also said a statement alone cannot be used to impute or frame charge for terrorism.

“Only on the basis of the statements of some of the witnesses about A-1 (Gogoi) speaking about blockade and closure, it cannot be said that there are prima facie materials to indicate that such talk of blockade was with an intention to threaten the economic security of India so as to constitute an offence of advocating commission of a terrorist act. That would not be a correct prima facie deduction, for the purpose of framing charge,” the court added.

Even if statements of some witnesses against him are accepted on face value, in the backdrop of any non-incitement to violence and appeals for peace in his speech, it cannot be said that there is a prima facie case for accepting their version.

The court also found that Gogoi, in his telephonic conversations with witnesses, never talked about stopping essential supplies, markets or blocking the national highway.

Also read: I have not spent a day or night in my cell without extreme anxiety: Umar Khalid from Tihar


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