In a legal setback to three alleged instigators of the July 24 Tura violence, the Meghalaya High Court today rejected their plea for anticipatory bail thus paving the way for their arrest by police.
ACHIK leader Labenn Ch Marak, Garo Hills State Movement Committee co-chairman Balkarin Ch Marak and ACHIK general secretary Bernita R. Marak had sought anticipatory bail from the High Court after police have charged them under various sections of the IPC, Section 13 of Unlawful Activities (Prevention) Act, Section 6A, 6B, 8A and 8B of Meghalaya (Maintenance of Public Order) Act and Sections 3 and 4 of Prevention to Damage to Public Property Act.
Justice Wanlura Diengdoh in his common judgement passed today, rejected the pleas of the three persons.
“In conclusion, when there is an express bar under section 43D(4) of the UAP Act, these applications under Section 438 CrPC cannot be maintained. The same are hereby rejected,” Justice Diengdoh said while disposing of the petitions.
The judge also observed that under the facts and circumstances of what has happened at Tura on July 24 and the consequent registering of the police case, investigation is still going on.
“The Investigating Officer in his wisdom has thought it fit that the incident apart from being violent in nature, the presence of the Hon’ble Chief Minister and other dignitaries and obviously being the target of the mob’s ire, on being instigated by the petitioners herein and others who have taken part in the said violent action, therefore, a case under the UAP Act, 1967, apart from the penal provisions under the IPC has been made out,” Justice Diengdoh said.
“From the contents of the case diary, it is found that the involvement of the petitioners in the case has been referred to by some witnesses, however as to the exact role or involvement of the petitioners in the said incident, the Investigating Officer has not been able to detail the same. Be that as it may, considering the fact that the nature of the offence is serious and grave, at this juncture this court cannot interfere with the process of investigation,” he added.
S Deb, the lawyer of the three petitioners in his pleading told the High Court that the petitioners are not at all involved in the incident though they were present at the place of occurrence on the said date.
Deb also said that Labenn Ch Marak, who is a senior leader of the ACHIK, as well as Balkarin Ch Marak, who is the co-chairman of GHSMC and Bernita R. Marak, who is the general secretary of ACHIK were together with Chief Minister Conrad Sangma at a meeting in the Chief Minister’s office in Tura when the incident took place and as such, they could not have been involved in what happened outside the building.
According to Deb, the three petitioners came to know from credible sources that it was alleged that they were the actual conspirators of the said incident for which reason the police have started looking for them, apparently to arrest them in this connection. “Being apprehensive of the likelihood of arrest, the petitioners have accordingly approached this court with these instant applications for grant of anticipatory bail,” he said.
Deb also told the High Court that apart from the number of offences under the Indian Penal Code, the inclusion of the provision of Section 13 of the Unlawful Activities (Prevention) Act, 1967 and also inclusion of Section 15(1)(b) and Section 16 of the Unlawful Activities (Prevention) Act in the case against the petitioners and others was only made to harass the petitioners and to curtail their personal liberty as enshrined in the Constitution of India under Article 21.
The lawyer went on to state that as far as unlawful assembly is concerned, it cannot be said that the petitioners have taken part in such an assembly when the demonstration that they were part of was conducted peacefully and that too, on being given due permission by the district administration.
“Therefore, there being no prima facie evidence against the petitioners, even if this fact is to be established, if the petitioners have been arrested for which the provision of Section 43D(5) of UAP Act and the proviso thereto would be applicable. However, even in an application for grant of anticipatory bail, if no prima facie evidence is found against the petitioners, they are entitled to be enlarged on bail in the event of their arrest,” he added.
Deb also cited the judgement of the Supreme Court in the case of Anand Teltumde vs The State of Maharashtra & Ors (2021), wherein at para 2 of the same the Supreme Court while dealing with a case for grant of anticipatory bail has, in other words, held that if a prima facie case is made out, the provision of Section 43D(4) will be applicable, which means that if no prima facie case is made out, an application under Section 43D(4) will not be applicable.
He therefore requested the High Court to allow the anticipatory bail applications and to direct for release of the petitioners in the event of their arrest in connection with the cases registered against them at Araimile Police Station, Tura.
On the other hand, Advocate General Amit Kumar who appeared for the police told the High Court that the magnitude of what has happened on July 24, especially involving high dignitaries no less than the Chief Minister, “such incident would indeed qualifies as an ‘unlawful activity’ coming within the definition as found under Section 2(o) of the UAP Act”.
“The punishment for such unlawful activities would therefore be under Section 13 of the said Act. Again, such an act has threatened the unity, integrity and security of the State and is also to attempt to cause death of any public functionary, Section 15(1)(b) and Section 16 are also justified in their application to the case of the prosecution,” Kumar said.
According to Kumar, the applications of the petitioners for grant of anticipatory bail cannot be considered in view of the bar under Section 43D(4) of the UAP Act, 1967. In support of this contention, Kumar referred to the verdict of the Supreme Court in the case of Ahammedkutty Pothiyil Thottiparambil vs Union of India.
Kumar also referred to the contents of the case diary to say that the Investigating Officer had affirmatively indicated that the petitioners are very much present on July 24 at the Mini Secretariat building in Tura and there are also statements made by witnesses who have stated that they were instigated by the petitioners to protest at the venue.
Therefore, Kumar told the High Court that this is not a fit case for grant of anticipatory bail to the three persons.
