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Spl. (NIA) Case No. 02/2020

(arising out of RC-13/2019/NIA/GUW)
01.07.2021
1) The instant case - Spl. (NIA) Case No. 02/2020, has arisen out of
NIA investigated case no. RC-13/2019/NIA/GUW, which after
investigation by the National Investigation Agency (hereinafter the
NIA) has resulted in a charge-sheet dated 29.05.2020 against 04
accused persons, namely, Sri Akhil Gogoi (A-1), Sri Dhirjya Konwar
@ Dhajya Konwar @ Dhaijya Konwar (A-2), Sri Manas Konwar @
Manash Pratim Konwar (A-3) and Sri Bittu Sonowal @ Bittu Sonwal
@ Bitu Sonowal (A-4) u/s 120(B)/124-A/153A/153B IPC r/w
Section 18/39 of the Unlawful Activities (Prevention) Act,
1967 {hereinafter the UA(P) Act}. Pursuant to filing of the aforesaid
charge-sheet, along with requisite documents, cognizance has been
taken vide order dated 12.06.2020, whereupon Special (NIA) Case
No. 02/2020 has been registered. Except Sri Akhil Gogoi (A-1) who
is in judicial custody, all the other three accused persons – A-2, A-3
and A-4 are on bail. The case is present at the stage of consideration
of charge.

2) The backgrounds facts in a nutshell. The instant case was initially

registered as Chandmari P.S. Case No.1688/2019, which was
subsequently, taken over by the NIA, whereupon it was registered
as RC-13/2019/NIA-GUW, which after investigation was charge-
sheeted against the 4 accused persons, as narrated above. The gist
of the allegations in the ejahar dated 13.12.2019 lodged by SI
Monoranjan Majumdar of Chandmari PS inter alia is that - an input
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was received that A-1 Sri Akhil Gogoi had secretly merged his organization
Krishak Mukti Sangram Samiti – KMSS with Revolutionary Communist Centre
and the latter was later merged with the banned CPI (Maoist). That, A-1 has
associated with the CPI (Maoist) to further its activities in this part of the
country. That, A-1, along with A-2, A-3, A-4 and others have conspired to incite
hatred and disaffection towards the Government established by law, using the
passage of the Citizenship Amendment Bill (CAB) as a pretext and that they
also promoted enmity amongst different groups of people.

3) Heard Sri Satyanarayana, the learned Senior Public Prosecutor, NIA

for the prosecution. The learned Senior P.P., NIA has taken the
Court through the contents of the ejahar / FIR and the findings of
the investigation with regard to the accused persons. He has
referred to the penal provisions under which the accused persons
have been charge-sheeted. He has drawn attention to the
prosecution sanctions relevant to the case. The learned Senior P.P.
has taken the Court through statements of witnesses, the original
ejahar, the FIR and various other documents. The learned Senior
P.P. has referred to the documents – D29, D31, D32, D38, D44,
D47, D51, D52-D54, D56 amongst others. It is submitted by the
prosecution that there are sufficient implicating materials against
the accused persons U/S 18/39 of the UA (P) Act. He also submitted
that there are sufficient materials to frame charges U/S
120(B)/124A/153A/153B IPC. It is submitted that the materials on
record make out a prima-facie case to frame charges against the
accused persons under the charge-sheeted sections and prays that
the same may be done so by this Court.
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4) Heard Sri H.A Ahmadi, Senior Advocate, Supreme Court of India for
A-1, assisted by learned counsels Ms. S. Alam, Sri K. Mathur and Sri
R. Sensua. Also perused the written argument submitted by the
learned senior defence counsel in this regard. Sri Ahmadi, learned
senior counsel has drawn attention of the Court to document D-44
and D-56 stating that in his speech at Jorhat as reflected in D-56,
A-1 has appealed to the people not to resort to violence. It is further
submitted that the books which were seized by the NIA were not
banned books. With regard to the statement of P.W-A, it is
submitted that in the said statement A-1 is said to be suggesting
not to indulge any activities of Maoist in Assam and that there is an
additional last sentence which is at some variance with the earlier
one. It is submitted that the statement of P.W-A and B are
inculpatory and that the said statements should not be relied upon
that the purpose of framing charge. Learned senior counsel submits
that even if the statements are accepted as true, they do not make
out offence u/s- 39 UA (P) Act. He has also pointed out that the CPI
(Maoist) has been declared a banned terrorist organization only with
from 22.06.2009. The learned senior counsel submits that an overt
act is essential for an offence u/s- 15 UA (P) Act and that the same
also has to be done so with the intentions mentioned therein. It is
submitted that without fulfilling the criteria of Section 15, offence
u/s- 18 of the UA (P) Act would not be made out. It is submitted
that protest, bandh etc. would not be taken as compromising the
economic security of India. Referring to the judgment of Kedar Nath
Singh, the learned senior counsel submits that the statements of
some of the witnesses about A-1 calling for blockade etc. would not
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amount to sedition. Summoning up his submissions, the learned

senior counsel submits that the materials do not justify framing of
charges against the accused A-1.

5) Also heard, Sri S Barthakur, learned defence counsel assisted by Sri

K Gogoi and Sri R Sensua, for A-2, A-3 and A-4. The learned defence
counsel Sri Barthakur has also taken the Court through the materials
on record. It is submitted that the ingredients of Sections 18/39 of
UA (P) Act do not exist; that, A-2, A-3 and A-4 being associates of
A1 is not an offence as A1 is not a declared terrorist; that no
independent action is attributed to A2, A3 and A4 with regard to
conspiracy. It is submitted that the prosecution witnesses have not
made any reference to these three accused persons. It is submitted
that witness No.15, Sri Bhaben Handique was stated to be General
Secretary and Organizing Secretary of the KMSS in the period 2009-
2013 and that this witness was not asked about any connection with
Maoists. It is submitted that the statements of witnesses have no
adverse materials against A2, A3 and A4. The learned defence
counsel has also taken the Court through speech of A1 on the record
including one speech made at Jorhat. With regard to some books
seized, it is submitted that keeping such books is not an offence. It
is submitted that there are no materials to link A2, A3 and A4 with
the vandalism that took place. That in document D-52, no person
has been identified therein as the member of KMSS. It is submitted
that without active violence, people protesting should not invite
criminal liability. It is also submitted that D-52 indicates that
violence took place during protest by some other organisation like
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AASU/Chutia Chatra Parishad etc. It is submitted that D-52 does not

reveal any adverse materials against these three accused persons.
It is submitted that economic blockage was done by other
organizations as well. It is submitted that the activities cannot be
said to be done with intension to threaten economic security of
India. The learned defence counsel refers to the 2013 Amendment,
whereby, the term economic security and provision iii(a) were
inserted in Section 15. Summing up his submissions, the learned
defence counsel argues that the charges should not be framed
against A2, A3 and A4 due to the lack of materials and prays that
they may be discharged.

6) In support of their contentions, the learned defence cites the

following decisions: -
(i) Zameer Ahmad v. State of Maharashtra, (2010) 5 SCC 246
(ii) State v. Nalini, (1999) 5 SCC 253
(iii) Hitendra Vishnu Thakur & Ors. v. State of Maharashtra, (1994) 4 SCC
602
(iv)PUCL v. Union of India, (2004) 9 SCC 580
(v) R H Khan v. NIA, (2012) SCConLine Gau 341
(vi)Attorney General v. Brown, (1920) 1 KB 773
(vii) Shreya Vs. Union of India (2015) 5 SCC 1
(viii) Mazdoor Kisan Shakti Sangathan v. Union of India & Ors., (2018)
17 SCC 32
(ix)Rangarajan v. P. Jagjeevan Ram & Ors., (1989) 2 SCC 574
(x) Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955
(xi)State of Kerala v. Raneef, (2011) 1 SCC 784
(xii) Yogesh v. State of Maharashtra, (2008) 10 SCC 394
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7) I have perused the ejahar, the FIR, the charge-sheet, the materials
submitted along with the charge-sheet, materials of the case diary,
including statements, documents etc. and other relevant materials.
I have considered the submissions of the learned counsels of both
the sides. I have perused the relevant portions of the judgments
cited at the Bar.
Penal provisions of the charge-sheet against the accused
persons
8) As stated at the outset, the accused persons have been charge-
sheeted u/s 120(B)/124-A/153-A/153-B IPC r/w Section
18/39 of the UA(P) Act. The subject areas of these penal
provisions are as follows:
(i) Section 120(b) IPC - Punishment for conspiracy - (1) Whoever is a
party to a criminal conspiracy to commit an offence punishable with
death, imprisonment for life or rigorous imprisonment for a term of two
years or upwards, shall, where no express provision is made in this Code
for the punishment of such a conspiracy, be punished in the same
manner as if he had abetted such offence. (2) Whoever is a party to a
criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of
either description for a term not exceeding six months, or with fine or
with both.
(ii) Section 153-A IPC –Promoting enmity between different groups on
grounds of religion, race, place of birth, residence, language, etc. and
doing acts prejudicial to maintenance of harmony.
(iii) Section 153-B IPC – Imputations, assertions, prejudicial to national
integration.
(iv)Section 124-A IPC – Sedition
(v) Section 18 UA (P) Act - Conspiracy, attempts to commit, or advocates,
abets, advises or incites, directly or knowingly facilitates, the commission
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of, a terrorist act or any act preparatory to the commission of a terrorist

act.
(vi)Section 39 UA (P) Act – Offence relating to support given to a terrorist
organization.

9) Before proceeding further, some important principles of law laid

down by the Hon’ble Supreme Court on the subject of charge
framing or discharge may be noticed hereunder.
Important case law principles on the subject of
consideration of charge
10) In Sajjan Kumar v. Central Bureau of Investigation,
(2010) 9 SCC 368 (para 21), the Hon’ble Supreme Court after
referring to various earlier cases on the subject of framing charge,
has summarized the principles which are to be kept in mind by the
criminal court at the stage of consideration of a case for discharge
or framing of charge under Sections 227 and 228 of Cr. P.C. :-
On consideration of the authorities about the scope of Sections 227 and
228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 CrPC has the undoubted power to sift and
weigh the evidence for the limited purpose of finding out whether
or not a prima facie case against the accused has been made out.
The test to determine prima facie case would depend upon the
facts of each case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
explained, the court will be fully justified in framing a charge and
proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of
the prosecution but has to consider the broad probabilities of the
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case, the total effect of the evidence and the documents

produced before the court, any basic infirmities, etc. However, at
this stage, there cannot be a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial.
(iv) If on the basis of the material on record, the court could form an
opinion that the accused might have committed offence, it can
frame the charge, though for conviction the conclusion is required
to be proved beyond reasonable doubt that the accused has
committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a
charge the court must apply its judicial mind on the material
placed on record and must be satisfied that the commission of
offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to
evaluate the material and documents on record with a view to
find out if the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the
alleged offence. For this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to common
sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge will be
empowered to discharge the accused and at this stage, he is not
to see whether the trial will end in conviction or acquittal.

11) Further, in para 19 of Sajjan Kumar (supra), it was also held

that –
(i) It is clear that at the initial stage, if there is a strong suspicion which
leads the court to think that there is ground for presuming that the
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accused has committed an offence, then it is not open to the court to

say that there is no sufficient ground for proceeding against the accused.
(ii) If the evidence which the prosecution proposes to adduce proves the
guilt of the accused even if fully accepted before it is challenged in cross-
examination or rebutted by the defence evidence, if any, cannot show
that the accused committed the offence, then there will be no sufficient
ground for proceeding with the trial.

12) In Asim Shariff v. NIA, (2019) 7 SCC 148 (para 8), the
Hon’ble Supreme Court has enumerated the following principles:
(i) It is settled that the Judge while considering the question of framing
charge under Section 227 CrPC in sessions cases (which is akin to
Section 239 CrPC pertaining to warrant cases) has the undoubted power
to sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been made
out;
(ii) where the material placed before the court discloses grave suspicion
against the accused which has not been properly explained, the court
will be fully justified in framing the charge;
(iii) by and large if two views are possible and one of them giving rise to
suspicion only, as distinguished from grave suspicion against the
accused, the trial Judge will be justified in discharging him.
(iv)It is thus clear that while examining the discharge application filed under
Section 227 Cr.P.C, it is expected from the trial Judge to exercise its
judicial mind to determine as to whether a case for trial has been made
out or not.
(v) It is true that in such proceedings, the court is not supposed to hold a
mini trial by marshalling the evidence on record.

13) In State of Orissa v. Debendra Nath Padhi, (2005) 1

SCC 568 (para 9), the Hon’ble Supreme Court has held that -
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Section 227 was incorporated in the Code with a view to save the accused from
prolonged harassment which is a necessary concomitant of a protracted
criminal trial. It is calculated to eliminate harassment to accused persons when
the evidential materials gathered after investigation fall short of minimum legal
requirements.

14) In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460

(para 19), it has been held that - at the initial stage of framing of a
charge, the court is concerned not with proof but with a strong suspicion that
the accused has committed an offence, which, if put to trial, could prove him
guilty. All that the court has to see is that the material on record and the facts
would be compatible with the innocence of the accused or not. The final test
of guilt is not to be applied at that stage.

15) In State v. S. Selvi, (2018) 13 SCC 455 (para 9), it has

been held that –

(i) It would be difficult to lay down the rule of universal application as to

how the prima facie case should be determined. Though the Judge has
got power to sift and weigh the evidence, such sifting and weighing
evidence is for the limited purpose of finding out whether or not a prima
facie case against the accused has been made out for framing of charge.
The test to determine a prima facie case would naturally depend upon
the facts of each case.
(ii) By and large if two views are equally possible and the Judge is satisfied
that the evidence produced before him while giving rise to some
suspicion but not grave suspicion against the accused, he will be fully
within his rights to discharge the accused.
(iii) The Judge cannot act merely as a post office or a mouthpiece of the
prosecution, but has to consider the broad probabilities of the case, the
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total effect of the statements and the documents produced before the
court, any basic infirmities appearing in the case and so on.
(iv)This however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the materials as
if he was conducting a trial.

16) In Soma Chakravarty v. State, (2007) 5 SCC 403 (para

19), it has been held that - charge may although be directed to be framed
when there exists a strong suspicion but it is also trite that the court must come
to a prima facie finding that there exist some materials therefor. Suspicion
cannot alone, without anything more, it is trite, form the basis therefor or held
to be sufficient for framing charge.

17) In P. Vijayan v. State of Kerala, (2010) 2 SCC 398 (para

25), it has been held that - Section 227 in the new Code confers special
power on the Judge to discharge an accused at the threshold if upon
consideration of the records and documents, he finds that “there is not
sufficient ground” for proceeding against the accused. In other words, his
consideration of the record and documents at that stage is for the limited
purpose of ascertaining whether or not there is sufficient ground for proceeding
against the accused. If the Judge comes to a conclusion that there is sufficient
ground to proceed, he will frame a charge under Section 228, if not, he will
discharge the accused. This provision was introduced in the Code to avoid
wastage of public time when a prima facie case was not disclosed and to save
the accused from avoidable harassment and expenditure.

18) In State of Bihar v. Ramesh Singh, (1977) 4 SCC 39

(para 4), it has been held that –

(i) If the evidence which the Prosecutor proposes to adduce to prove the
guilt of the accused even if fully accepted before it is challenged in cross-
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examination or rebutted by the defence evidence, if any, cannot show

that the accused committed the offence, then there will be no sufficient
ground for proceeding with the trial.
(ii) An exhaustive list of the circumstances to indicate as to what will lead
to one conclusion or the other is neither possible nor advisable. We may
just illustrate the difference of the law by one more example. If the
scales of pan as to the guilt or innocence of the accused are something
like even, at the conclusion of the trial, then, on the theory of benefit of
doubt the case is to end in his acquittal. But if, on the other hand, it is
so at the initial stage of making an order under Section 227 or Section
228, then in such a situation ordinarily and generally the order which will
have to be made will be one under Section 228 and not under Section
227.

19) In a recent judgment - M.E. Shivalingamurthy v. CBI,

(2020) 2 SCC 768 (para 17, 18, 29, 31), the Hon’ble Supreme Court
has again summarised the principles with regard to discharge or
charge framing and laid down the following principles:
(i) 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.
(ii) The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
(iii) The Judge has merely to sift the evidence in order to find out whether
or not there is sufficient ground for proceeding. Evidence would consist
of the statements recorded by the police or the documents produced
before the Court.
(iv)If the evidence, which the Prosecutor proposes to adduce to prove the
guilt of the accused, even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence, if any, “cannot
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show that the accused committed offence, then, there will be no

sufficient ground for proceeding with the trial.
(v) It is open to the accused to explain away the materials giving rise to the
grave suspicion.
(vi)The court has to consider the broad probabilities, the total effect of the
evidence and the documents produced before the court, any basic
infirmities appearing in the case and so on. This, however, would not
entitle the court to make a roving inquiry into the pros and cons.
(vii) At the time of framing of the charges, the probative value of the
material on record cannot be gone into, and the material brought on
record by the prosecution, has to be accepted as true.
(viii) There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge and refusing
to discharge the accused.
(ix)The defence of the accused is not to be looked into at the stage when
the accused seeks to be discharged under Section 227 CrPC The
expression, “the record of the case”, used in Section 227 CrPC, is to be
understood as the documents and the articles, if any, produced by the
prosecution. The Code does not give any right to the accused to produce
any document at the stage of framing of the charge. At the stage of
framing of the charge, the submission of the accused is to be confined
to the material produced by the police.
(x) It is not open to the accused to rely on the material by way of defence
and persuade the court to discharge him.
(xi)In view of the decisions of this Court that the accused can only rely on
the materials which are produced by the prosecution, it must be
understood that the grave suspicion, if it is established on the materials,
should be explained away only in terms of the materials made available
by the prosecution. No doubt, the accused may appeal to the broad
probabilities to the case to persuade the court to discharge him.
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20) Upon perusing the aforesaid case laws enunciated by the

Hon’ble Supreme Court in various decisions, some of the important
principles that emerge on the subject of charge / discharge are:
(i) At the stage of considering the discharge/charge the Court has the
power to sift and weigh the evidence for the limited purpose of finding
out whether or not a prima-facie against the accused has been made
out.
(ii) What constitute a prima-facie case would depend upon the facts of each
case. But if there is a ground for presuming that the accused has
committed the offence, a prima-facie case can be said to exist against
him.
(iii) If the evidence proposed to be adduced by the prosecution even if fully
accepted, before being challenged by the defence, does not show that
the accused committed the offence, there will no sufficient ground for
proceeding with the trial.
(iv)Full appreciation of evidence like that a trial is not permissible at the
stage of consideration of charge, though broad probabilities indicated by
the materials has to be seen for the purpose of determining by the Court
whether it would be justified in commencing trial against the accused.
(v) If the Court finds on the basis of materials that there are no sufficient
grounds for proceeding against the accused, then the Court would be
justified to discharge the accused.
(vi)If the materials indicate two views, with one of them creating suspicion
only as distinguished from grave suspicion, the Court will be empowered
or justified to discharge the accused.
(vii) Suspicion cannot alone without anything more from the materials,
cannot be held sufficient for framing charge.
(viii) Where the materials fall short of prima-facie case for framing
charge against the accused, the interests of justice require the court to
discharge the accused.
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(ix) If the court finds that the materials at that stage are compatible with
innocence of the accused, it can justifiably discharge the accused.

Definition and interpretation of Terrorist Act under the UA

(P) Act, 1967
21) It may be mentioned herein that Section 2 (k) of the UA(P)
Act pertaining to definitions, states that terrorist act has the
meaning assigned to it in section 15, and the expressions terrorism
and terrorist shall be construed accordingly.

22) In this context, Section 15 of the UA(P) Act is as under:

15. Terrorist Act.—

(1) Whoever does any act with intent to threaten or likely to threaten
the unity, integrity, security [economic security,] or sovereignty of India
or with intent to strike terror or likely to strike terror in the people or any
section of the people in India or in any foreign country,—

(a) by using bombs, dynamite or other explosive substances or

inflammable substances or firearms or other lethal weapons or
poisonous or noxious gases or other chemicals or by any other
substances (whether biological radioactive, nuclear or otherwise)
of a hazardous nature or by any other means of whatever nature
to cause or likely to cause—
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the
life of the community in India or in any foreign country; or
(iiia) damage to, the monetary stability of India by way of
production or smuggling or circulation of high quality
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counterfeit Indian paper currency, coin or of any other

material; or]
(iv) damage or destruction of any property in India or in a
foreign country used or intended to be used for the
defence of India or in connection with any other purposes
of the Government of India, any State Government or any
of their agencies;
or
(b) overawes by means of criminal force or the show of criminal
force or attempts to do so or causes death of any public
functionary or attempts to cause death of any public functionary;
or
(c) detains, kidnaps or abducts any person and threatens to kill
or injure such person or does any other act in order to compel
the Government of India, any State Government or the
Government of a foreign country or [an international or inter-
governmental organisation or any other person do or abstain
from doing any act;]

commits a terrorist act.

Explanation.—For the purpose of this sub-section,— (a) “public functionary”

means the constitutional authorities or any other
functionary notified in the Official Gazette by the Central Government as
public functionary;
(b) “high quality counterfeit Indian currency” means the counterfeit
currency as may be declared after examination by an authorised or
notified forensic authority that such currency imitates or compromises
with the key security features as specified in the Third Schedule.]
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(2) The terrorist act includes an act which constitutes an offence within
the scope of, and as defined in any of the treaties specified in the Second
Schedule.]

23) From the analysis of this definition of terrorist act, I find that
to constitute a terrorist act within the meaning of Section 15, the
prescribed illegal activities have to be done with any or more of the
stipulated intention(s) – such as threatening the unity, integrity, security,
economic security of India or threatening the sovereignty of India or striking
terror in the people or a section of the people.

MATERIALS AGAINST ACCUSED, THEIR ANALYSIS AND

FINDINGS

24) Now, the materials on record available at this stage have to

be scrutinized and analyzed to determine the question of framing
charge or otherwise, against the accused persons.

Materials with regard to Manas Konwar @ Manash Pratim

Konwar (A-3)
Findings in the charge-sheet with regard to A-3

25) Paragraph 16.18 (C) enumerates the findings against Sri

Manas Konwar @ Manash Pratim Konwar (A-3) revealed by the
investigation. It is stated therein that:
(i) A-3 is closely associated with A-1 and supported the ideological
inclination of A-1. The accused has an extremist (Maoist) ideology.
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(ii) A-3 has conspired, advocated, abetted, advised the conspiracy to

terrorist act {as defined in Section 15(1)(a)(iii) of the UA(P) Act} and
subsequently, in pursuance of that conspiracy committed terrorist acts.
(iii) A-3 in association with A-1 promoted enmity between different classes
of people on grounds of religion, race, place of birth, residence,
language which is prejudicial to maintenance of harmony.
(iv)A-3 made assertions prejudicial to harmony to the national integration.
(v) A-3 in association with A-1 by his speeches caused disruption of public
peace and causing widespread disharmony and disaffection towards the
Government established by law.
(vi)A-3 in association with A-1 by his speeches caused disruption of public
peace and causing widespread disharmony and disaffection towards the
Government established by law.
(vii) A-3 in association with A-1 conspired to cause widespread
blockade in the State of Assam, thereby paralyzing the Government
machinery causing economic blockade.
(viii) The oral evidence, documents, material objects and technical
evidence collected during the course of investigation are establishing
prima facie case against the accused to prosecute.
Materials with regard to A-3
26) In the charge-sheet dated 29.05.2020, 76 witnesses are listed
as prosecution witnesses, of which the statements of 19 witnesses
have been recorded during the investigation. These also include 2
protected witnesses, being protected witness A and B.

(i) The protected witness A has not mentioned the name of accused A-3.
The protected witness B in his statement has also not mentioned the
name of accused Sri Manas Konwar @ Manash Pratim Konwar (A-3).
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(ii) Witness Sri Dipak Mudoi, listed as PW-3 in the charge-sheet dated
29.05.2020, in his statement has not mentioned the name of Sri Manas
Konwar @ Manash Pratim Konwar (A-3).

(iii) Witness Sri Pranab Jyoti Handique, listed as PW-4 in the charge-sheet
dated 29.05.2020, in his statement has not mentioned the name of
accused Sri Manas Konwar @ Manash Pratim Konwar (A-3).

(iv)Witness Sri Dibyajyoti Sarmah, listed as PW-5 in the charge-sheet dated

29.05.2020, in his statement has mentioned Sri Manas Konwar @
Manash Pratim Konwar (A-3) and stated that on 11.12.2019, at about 6
pm, A-1 Sri Akhil Gogoi along with A-3 Sri Manas Konwar @ Manash
Pratim Konwar (President of SMSS – student wing of KMSS) reached
near DC office Jorhat, where A-1 delivered a speech against the CAB
(Citizenship Amendment Bill). He further stated that thereafter, he along
with A-1, A-3 and Sri Lakha Jyoti Gogoi reached his house and soon after
A-1 left. That, subsequently, police took him, A-3 and Lakha Jyoti Gogoi
to Rowraya police OP and released them later. He further stated that he
knew A-3 Sri Manas Konwar @ Manash Pratim Konwar (President of
KMSS), accused Sri Bittu Sonowal (Acting President of SMSS) and
accused Sri Dhajya Konwar (Secretary of KMSS). Apart from this, PW-5
has not made any other statement regarding Sri Manas Konwar @
Manash Pratim Konwar (A-3).

(v) Witness Sri Tulumoni Duarah, listed as PW-6 in the charge-sheet dated
29.05.2020, was the O-C of Chabua PS at the relevant time. He was also
injured in the violent incident at Chabua. He has not referred to Sri
Manas Konwar @ Manash Pratim Konwar (A-3).

(vi)Witness Sri Sunil Sonowal, listed as PW-7 in the charge-sheet dated

29.05.2020, in his statement stated that knows A-2 Sri Dhajya Konwar,
has his phone number and is in contact with him on phone. He further
stated that A-1 Sri Akhil Gogoi visited Dibrugarh on 09.12.2019 and that
 Page 20 of 120

he along with KMSS associates of Dibrugarh area were present in

Chabua, where A-1 gave a speech. The public got provoked and violent
activities started resulting in damage to Government vehicles and injury
to O-C Chabua. That after violent activities, roads got blocked by
protesters and he came back home. PW-7 has stated that he had seen
Sri Manas Konwar @ Manash Pratim Konwar (A-3) accompanying A-1 Sri
Akhil Gogoi.

(vii) Witness Sri Rahul Chetry, listed as PW-8 in the charge-sheet

dated 29.05.2020, in his statement has not mentioned or implicated
accused Sri Manas Konwar @ Manash Pratim Konwar (A-3).

(viii) Witness Asik Ali, listed as PW-9 in the charge-sheet dated

29.05.2020, in his statement has stated that knows Sri Manas Konwar
@ Manash Pratim Konwar (A-3) as one of the office bearers of KMSS,
being its Working President. He also stated that SMSS is the student
wing of KMSS and that its main object is support KMSS and welfare of
students. He further stated that he knows Sri Manas Konwar @ Manash
Pratim Konwar (A-3) personally and have talked with him over phone.
Apart from this, this witness has not stated anything regarding A-3.

(ix)Witness Sri Jugal Gogoi, listed as PW-10 in the charge-sheet dated

29.05.2020, in his statement has stated that he was the President of
SMSS of Dhemaji district and that he personally knows Sri Manas Konwar
@ Manash Pratim Konwar (A-3) as Working President of KMSS. He also
stated that he had talk with Manas Konwar and others, on their phones
in connection with protest and party work. Apart from this, this witness
has not stated anything regarding A-3.

(x) Witness Sri Maina Deka, listed as PW-11 in the charge-sheet dated
29.05.2020, in his statement has stated that he was the Joint General
Secretary of KMSS and that he personally knows Sri Manas Konwar @
Manash Pratim Konwar (A-3) as Working President of SMSS. He also
 Page 21 of 120

stated that he had talk with Manas Konwar and others, on their phones
in connection with protest, meetings and party work. He also stated that
during the period – 09.12.2019 to 13.12.2019, as per the directions of
A-1, he was in the KMSS office in Guwahati and in close contact with A-
1 and other leaders of KMSS. Apart from this, this witness has not stated
anything regarding A-3.

(xi)Witness Sri Kulapradip Bhattacharyya, listed as PW-12 in the charge-

sheet dated 29.05.2020, in his statement has not mentioned about Sri
Manas Konwar @ Manash Pratim Konwar (A-3).

(xii) Witness Sri Nitul Sonowal, listed as PW-13 in the charge-sheet

dated 29.05.2020, in his statement has not mentioned about Sri Manas
Konwar @ Manash Pratim Konwar (A-3).

(xiii) Witness Sri Ritumoni Hazarika, listed as PW-14 in the charge-

sheet dated 29.05.2020, in his statement has not mentioned about Sri
Manas Konwar @ Manash Pratim Konwar (A-3).

(xiv) Witness Sri Bhaben Handique, listed as PW-15 in the charge-

sheet dated 29.05.2020, in his statement has stated that he worked with
KMSS from 2009 to 2013 and that he knows Sri Manas Konwar @
Manash Pratim Konwar (A-3) as Working President of SMSS.

(xv) Witness Sri Jitul Deka, listed as PW-16 in the charge-sheet dated
29.05.2020, in his statement has not mentioned about Sri Manas Konwar
@ Manash Pratim Konwar (A-3).

(xvi) Witness Sri Poramananda Bora, listed as PW-17 in the charge-

sheet dated 29.05.2020, in his statement has not mentioned about Sri
Manas Konwar @ Manash Pratim Konwar (A-3).
 Page 22 of 120

(xvii) Witness Sri Rajib Gogoi, listed as PW-18 in the charge-sheet dated
29.05.2020, in his statement has not mentioned about Sri Manas Konwar
@ Manash Pratim Konwar (A-3).

(xviii) Witness Dr Nabamita Das, APS, Assistant Commissioner of Police,

Cyber Crime, Guwahati, listed as PW-19 in the charge-sheet dated
29.05.2020, in her statement has stated that she received in the Cyber
Cell 7 DVDs from various police stations of Guwahati regarding the mass
protects in Guwahati in December 2019. This witness has not mentioned
about Sri Manas Konwar @ Manash Pratim Konwar (A-3).

27) Apart from these witnesses, who have also been listed as
prosecution witnesses in the charge-sheet dated 29.05.2020, I have
also perused the statements of Sri Arupjyoti Saikia, Sri Pranjal Kalita
and Sri H M Sahjahan. These 3 witnesses have not been listed in
the charge-sheet dated 29.05.2020.

(i) Witnesses Sri Arupjyoti Saikia and Sri Pranjal Kalita, in their statements
recorded during the investigation, have not mentioned about Sri Manas
Konwar @ Manash Pratim Konwar (A-3).

(ii) Witness Hussain Mohammad Shahjahan, who is not a listed witness, in

his statement recorded during the investigation, has stated that during
the protest activities against CAB, Sri Manas Konwar @ Manash Pratim
Konwar (A-3) accompanied Sri Akhil Gogoi to upper Assam and that they
were coordinating with Bittu Sonowal and Dhaijya Konwar at Guwahati
and with him at Barpeta. During the protest activities in Guwahati around
10th – 11th December, 2019 also, during which violence broke out, he
and the aforesaid persons coordinated. He further stated that during
such protest activities against CAB, he was getting updates about upper
 Page 23 of 120

Assam through Akhil Gogoi (A-1) and Sri Manas Konwar @ Manash
Pratim Konwar (A-3).

28) Upon perusing the documents, I find as follows:

(i) Document D-34 is transcriptions and translations of intercepted voice
clips of Akhil Gogoi, Bittu Sonowal and Dhajya Konwar. No such
transcription is available with regard to Sri Manas Konwar @ Manash
Pratim Konwar (A-3).

(ii) Document D-88 is CDR analysis report of the phone numbers of the 4
accused persons and some others, during the period 7th December, 2019
to 13th December, 2019. It indicates that during this period, Manas
Konwar exchanged 1 call with Bittu Sonowal; 15 calls with Dhajya
Konwar; 7 calls with Shajahan and 34 calls with Bittu Sonowal on another
of his number. This is compatible with the statements of some of the
witnesses that during this period, A-3 was also coordinating with the
others regarding the protest activities against the CAB. However,
intercepted voice call transcriptions of A-3 are not available to ascertain
the contents of his phone calls.

(iii) Document D-63 gives an assessment of the damage to properties – both

public and private, to the tune of approximately Rs 7 crores.

Materials with regard to Dhirjya Konwar @ Dhajya Konwar

@ Dhaijya Konwar (A-2)

Findings in the charge-sheet with regard to A-2

29) Paragraph 16.18 (B) enumerates the findings against Sri
Dhirjya Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2) as
stated to be revealed by the investigation. It is stated therein that:
 Page 24 of 120

(i) A-2 is closely associated with A-1 and supported the ideological
inclination of A-1. The accused has an ideology of the same spectrum of
ideology of CPI (Maoist) ideology.
(ii) A-2 has conspired, advocated, abetted, advised the acts preparatory to
commission of terrorist act {as defined in Section 15(1)(a)(iii) of the
UA(P) Act}.
(iii) A-2 promoted enmity between different classes of people on grounds of
religion, race, place of birth, residence, language which is prejudicial to
maintenance of harmony.
(iv)A-2 in association with A-1 made assertions prejudicial to harmony to
the national integration.
(v) A-2 in association with A-1 caused disruption of public peace and causing
widespread disharmony and disaffection towards the Government
established by the law.
(vi)A-2 in association with A-1 conspired to cause widespread blockade in
the State of Assam, thereby paralyzing the government machinery,
causing economic blockade.
(vii) The oral evidence, documents, material objects and technical
evidence collected during the course of investigation are establishing
prima facie case against the accused to prosecute.
Materials with regard to A-2
30) Perusal of the statements of the witnesses reveals that:
(i) The protected witness A and B have not mentioned the name of the
accused Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2).

(ii) Witness Sri Dipak Mudoi, has not mentioned about A-2. Witnesses Sri
Pranab Jyoti Handique and Sri Dibyajyoti Sarmah, have stated that they
know Sri Dhaijya Konwar, as Secretary of KMSS.

(iii) Witness Sri Tulumoni Duarah, listed as PW-6 has not referred to or made
any implication by name against A-2.
 Page 25 of 120

(iv)Witness Sri Sunil Sonowal, listed as PW-7 in the charge-sheet dated

29.05.2020, in his statement has stated that he knows the accused Sri
Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2), has his
phone number and has been in regular contact with him. Further he
stated that A-1 Akhil Gogoi, was leading a protest in the state of Assam
against the CAB/CAA Bill passed by the Parliament in Delhi and all KMSS
associates under the leadership of Akhil Gogoi were planning to stop the
state machinery leading to block of Highways.

(v) Witness Sri Rahul Chetry listed as PW-8 has not mentioned or implicated
accused Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2).

(vi)Witness Asik Ali, listed as PW-9 has stated that knows Sri Dhirjya Konwar
@ Dhaijya Konwar @ Dhajya Konwar (A-2) as Secretary of KMSS.
Witness Sri Jugal Gogoi, listed as PW-10 has stated that he personally
knows Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2) as
General Secretary of KMSS.

(vii) Witness Sri Maina Deka, listed as PW-11 has stated that he
personally knows Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya
Konwar (A-2) as general secretary of KMSS. He further stated that he
had talked with A-2, A-1, A-3 and A-4 many times over their mobile
phones on various occasions relating to protests, meetings and party
work etc. He further stated that as per the directions of Akhil Gogoi,
during the period i.e., 09.12.2019 to 13.12.2019, he was in Gauhati at
the office of the KMSS office and during this period he was in close
contact with Akhil Gogoi and other leaders of KMSS.

(viii) Witnesses Sri Kulapradip Bhattacharyya, Sri Nitul Sonowal, Sri

Ritumoni Hazarika, Sri Jitul Deka in their statements have not mentioned
about Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2).
 Page 26 of 120

(ix)Witness Sri Bhaben Handique, listed as PW-15 has stated that he knows
Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2), as
General Secretary of KMSS.

(x) Witnesses Sri Poramananda Bora, Sri Rajib Gogoi and police official Dr
Nabamita Das, have not mentioned about Sri Dhaijya Konwar (A-2).

(xi)Witness Sri Naba Moran and Sri Pranjal Kalita – not listed, as already
mentioned, have not talked about Sri Dhaijya Konwar (A-2).

(xii) Non-listed witness Sri Arupjyoti Saikia has stated that sometimes
he used to speak to A-2 Dhaijya Konwar on his phone. That, after A-1
Akhil Gogoi got arrested, he had spoken to A-2 Dhaijya Konwar, who
also asked him as to how Assam can take up the issue of CAA in legal
manner and they discussed about going to court. He stated that he made
calls with A-2 Dhaijya Konwar on 13.12.2019 due to his concern over
the violence and that A-2 Dhaijya Konwar told that there is loss of lives
and property in the violence. That, A-2 Dhaijya Konwar told him that the
Hon’ble Supreme Court may take a positive view of the petitions filed
and that KMSS had also decided to file a similar petition. They discussed
about constitutional lawyers in Guwahati. He stated that he is one of the
persons, the KMSS people speak to when they need help, apart from Dr
Hiren Gohain, Sri Udayaditya Bharali, Sri Haider Hussain, Sri Nekibur
Zaman, Sri Arup Borbora etc.

(xiii) Witness Hussain Mohammad Shahjahan, (non-listed, as already

mentioned) in his statement has stated that he was involved in the
activities of SMSS till 2015 under the supervision of Sri Akhil Gogoi, in
coordination with A-2 Sri Dhajya Konwar and A-4 Sri Bittu Sonowal. He
further stated that during the protest activities against CAB, Sri Manas
Konwar (A-3) accompanied Sri Akhil Gogoi (A-1) to upper Assam and
that they were coordinating with Bittu Sonowal and Dhaijya Konwar at
Guwahati and with him at Barpeta. He also stated that during the recent
 Page 27 of 120

protests, Sri Arupjyoti Saikia was in communication with A-1, A-2, A-4
and other associates of KMSS. He further stated that he and the
aforesaid persons coordinated during the protest activities in Guwahati
around 10th – 11th December, 2019 also, during which violence broke
out. He further stated that during such protest activities against CAB, he
was getting updates about upper Assam through Akhil Gogoi (A-1) and
Sri Manas Konwar (A-3) and that updates from Guwahati were given by
Sri Arupjyoti Saikia, A-2 and A-4. This witness further stated that during
the recent bandh and violent activities in Guwahati during 10 th to 12th,
these persons were at Guwahati and coordinating the execution of the
bandh against CAB, which caused economic blockade, destruction of
essential supplies and complete shutdown leading to paralyzing of state
machinery.

31) I have perused the copies of the documents listed in the

charge-sheet dated 29.05.2020. In this regard, I find as follows:
(i) Document D-34 is transcriptions and translations of intercepted voice
clips of Akhil Gogoi, Bittu Sonowal and Dhajya Konwar.

(ii) Document D-88 is CDR analysis report of the phone numbers of the 4
accused persons and some others, during the period 7th December, 2019
to 13th December, 2019. It indicates that during this period, the accused
A-2 Dhaijya Konwar exchanged 54 calls with A-4 Bittu Sonowal; 15 calls
with A-3 Manas Konwar; 20 calls with A-1 Akhil Gogoi; 4 calls with
Shahjahan; 6 calls with Arupjyoti Saikia; 4 calls with Arupjyoti Saikia on
another number.

(iii) Document D-59, is stated to be a scrutiny report of videos seized from

the office of DY 365 news channel, wherein serial no. 2, 3, 5 and 8
pertains to the accused Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya
Konwar (A-2):
 Page 28 of 120

 Serial No. 2 - CAB protestors led by A-2 Dhaijya Konwar shouting

slogans against Hon’ble CM, Assam
 Serial No. 3 – CAB protestors led by A-2 Dhaijya Konwar argue
with police and shouting slogans – Jai Aii Asom.
 Serial No. 5 – police official directed CAB protestors led by A-2
Dhaijya Konwar not to come forward, in front of Ganesh Mandir,
Ganeshguri, Guwahati.
 Serial No. 8 – CAB protestors led by A-2 Dhaijya Konwar delivering
speech and proposing to start one protest march up to
Ganeshguri, to which the crowd agree.

(iv)Document D-63 gives an assessment of the damage to properties – both

public and private, to the tune of approximately Rs 7 crores.

(v) D-34 contains transcriptions and translations of the intercepted voice

clips of some persons, including that of Sri Dhirjya Konwar @ Dhaijya
Konwar @ Dhajya Konwar (A-2), in his conversations with co-accused
and other persons, during the relevant time. The following telephone
conversations of Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya
Konwar (A-2) are available in these transcripts:
 Call between A-1 Akhil Gogoi and A-2 Dhaijya Konwar on
04.12.2019 at 13:01
 Call between A-1 Akhil Gogoi and A-2 Dhaijya Konwar on
10.12.2019 at 16:26
 Call between A-4 Bittu Sonowal and A-2 Dhaijya Konwar on
10.12.2019 at 11:20.

Materials with regard to Bittu Sonowal @ Bittu Sonwal @

Bitu Sonowal (A-4)
Findings in the charge-sheet with regard to A-4
 Page 29 of 120

32) Paragraph 16.18 (D) of the charge-sheet dated 29.05.2020

enumerates the findings against Sri Bittu Sonowal @ Bittu Sonwal
@ Bitu Sonowal (A-4):
(i) A-4 is closely associated with A-1 and supported the ideological
inclination of A-1. The accused has an ideology of the same spectrum of
ideology of CPI (Maoist) ideology.
(ii) A-4 has conspired, advocated, abetted, advised the acts preparatory to
commission of terrorist act {as defined in Section 15(1)(a)(iii) of the
UA(P) Act}.
(iii) A-4 promoted enmity between different classes of people on grounds of
religion, race, place of birth, residence, language which is prejudicial to
maintenance of harmony.
(iv)A-4 made assertions prejudicial to harmony to the national integration.
(v) A-4 caused disruption of public peace and causing widespread
disharmony and disaffection towards the Government established by the
law.
(vi)A-4 conspired to cause widespread blockade in the State of Assam,
thereby paralyzing the government machinery, causing economic
blockade.
(vii) The oral evidence, documents, material objects and technical
evidence collected during the course of investigation are establishing
prima facie case against the accused to prosecute.
Materials with regard to A-4
33) Perusal of the statements reveal that:
(i) The protected witness A and B have have not mentioned the name of
accused A-4.

(ii) Witnesses Sri Dipak Mudoi, Sri Sunil Sonowal and Sri Pranab Jyoti
Handique have not mentioned the name of Sri Bittu Sonowal @ Bittu
Sonwal @ Bitu Sonowal (A-4).
 Page 30 of 120

(iii) Witness Sri Dibyajyoti Sarmah has stated that he knows accused Sri Bittu
Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4), as acting President of
SMSS. Witness Sri Tulumoni Duarah has named A-4.

(iv)Witness Sri Rahul Chetry listed as PW-8 in the charge-sheet dated

29.05.2020, in his statement has not mentioned or implicated accused
Sri Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4).

(v) Witness Asik Ali, listed as PW-9 in the charge-sheet dated 29.05.2020,
in his statement has stated that knows Sri Bittu Sonowal @ Bittu Sonwal
@ Bitu Sonowal (A-4) as one of the office bearers of SMSS, being its
Working President. He also stated that SMSS is the student wing of KMSS
and that its main object is support KMSS and welfare of students. He
further stated that he talked with accused Sri Bittu Sonowal @ Bittu
Sonwal @ Bitu Sonowal (A-4) on his mobile two – three times in the
month of December 2019 regarding conducting protest against the CAB
and that A-4 appointed him in charge of SMSS Kahilipara, Guwahati. He
further stated that he knows A-4 personally and has talked with him over
the phone. He further stated that he talked with A-4 on 06.12.2019
regarding conducting a protest on 09.12.2019 against the CAB; that he
wanted to conduct a rally comprising 300 – 400 people and needed some
money for banners and accordingly, A-4 told him to come to Cotton
College, where he went and collected Rs. 500/- from A-4. This witness
further stated that he asked Bittu Sonowal as to whether police will
arrest whereupon, Bittu Sonowal told him not to worry and said that
police might push the rally and that they also push them. This witness
further stated that eventually on 09.12.2019 under his leadership only
30 – 40 persons joined the protest during which they carried the banner
on which it was written – we oppose CAB.

(vi)Witness Sri Jugal Gogoi, listed as PW-10 in the charge-sheet dated

29.05.2020, in his statement has stated that he was the President of
 Page 31 of 120

SMSS of Dhemaji district and that he personally knows Sri Bittu Sonowal
@ Bittu Sonwal @ Bitu Sonowal (A-4) as Working President of KMSS. He
also stated that he had talk with Bittu Sonowal and others, on their
phones in connection with protest and party work. This witness has also
stated that on the directions of A-1 and A-4, they were doing protests
against CAB/CAA since November 2019 and that during the period
09.12.2019 to 13.12.2019, he was in Dhemaji and involved in various
protests against the CAB/CAA.

(vii) Witness Sri Maina Deka, (PW-11) has stated that he was the Joint
General Secretary of KMSS and that he personally knows Sri Bittu
Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4) as Working President of
SMSS. He also stated that he had talk with Bittu Sonowal and others, on
their phones in connection with protest, meetings and party work. He
stated that under the leadership of A-1, they were opposing the CAB in
doing protests against it in different parts of Guwahati on other places
of Assam. He also stated that during the period – 09.12.2019 to
13.12.2019, as per the directions of A-1, he was in the KMSS office in
Guwahati and in close contact with A-1 and other leaders of KMSS.

(viii) Witnesses Sri Kulapradip Bhattacharyya, Sri Ritumoni Hazarika

and Sri Nitul Sonowal, have not mentioned about Sri Bittu Sonowal @
Bittu Sonwal @ Bitu Sonowal (A-4).

(ix)Witness Sri Bhaben Handique, (PW-15) has stated that he worked with
KMSS from 2009 to 2013 and that he knows Sri Bittu Sonowal @ Bittu
Sonwal @ Bitu Sonowal (A-4) as Working President of SMSS. He further
stated that on 11.12.2019, he called Bittu Sonowal over the phone to
know the situation of Guwahati as well as about him.
 Page 32 of 120

(x) Witnesses Sri Jitul Deka, Sri Rajib Gogoi, Sri Poramananda Bora and
police official Dr Nabamita Das, APS have not mentioned about Sri Bittu
Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4).

(xi)Witness Sri Naba Moran (not listed in charge-sheet) has not mentioned
about Sri Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4). Another
non-listed witness Sri Arupjyoti Saikia has stated that he has never
spoken to Sri Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4). But
that he had spoken to one Bedanta Laskar through his phone.

(xii) Witness Sri Pranjal Kalita (not listed in charge-sheet), has stated
that he knows Sri Bittu Sonowal (A-4). He has further stated that on 8th
– 9th December 2019, he exchanged calls with A-4 and talked regarding
hunger strike and that on 11th December, he received a call from A-4,
asking about the whereabouts of this witness.

(xiii) Witness Hussain Mohammad Shahjahan (not listed in charge-

sheet), has stated that he was involved in the activities of SMSS till 2015
under the supervision of Sri Akhil Gogoi, in coordination with A-2 Sri
Dhajya Konwar and A-4 Sri Bittu Sonowal. He further stated that during
the protest activities against CAB, Sri Manas Konwar (A-3) accompanied
Sri Akhil Gogoi (A-1) to upper Assam and that they were coordinating
with Bittu Sonowal and Dhaijya Konwar at Guwahati and with him at
Barpeta. He also stated that during the recent protests, Sri Arupjyoti
Saikia was in communication with A-1, A-2, A-4 Bittu Sonowal and other
associates of KMSS. He further stated that he and the aforesaid persons
coordinated during the protest activities in Guwahati around 10 th – 11th
December, 2019 also, during which violence broke out. He further stated
that during such protest activities against CAB, he was getting updates
about upper Assam through Akhil Gogoi (A-1) and Sri Manas Konwar (A-
3) and that updates from Guwahati were given by Sri Arupjyoti Saikia,
A-2 and A-4 Bittu Sonowal. This witness further stated that during the
 Page 33 of 120

recent bandh and violent activities in Guwahati during 10th to 12th, these
persons including A-4 whether Guwahati and coordinating the execution
of the bandh against CAB, which caused economic blockade, destruction
of essential supplies and complete shutdown leading to paralyzing of
state machinery.

34) I have perused the copies of the documents listed in the

charge-sheet dated 29.05.2020 and find as follows:
(i) Document D-88 is CDR analysis report of the phone numbers of the 4
accused persons and some others, during the period 7th December, 2019
to 13th December, 2019. It indicates that during this period, Bittu
Sonowal exchanged 2 calls with A-1; 34 calls with Manas Konwar (A-3);
54 calls with Dhajya Konwar (A-2); 4 calls with Bedabrata Gogoi. This is
compatible with the statements of some of the witnesses that during this
period, A-4 was also coordinating with the others regarding the protest
activities against the CAB.
(ii) Document D-63 gives an assessment of the damage to properties – both
public and private, to the tune of approximately Rs 7 crores.
(iii) D-34 contains transcriptions and translations of the intercepted voice
clips of some persons, including that of Sri Bittu Sonowal @ Bittu Sonwal
@ Bitu Sonowal (A-4), in his conversations with co-accused and other
persons, during the relevant time. The following telephone
conversations of Sri Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4)
are available in these transcripts:
 Call between A-4 Bittu Sonowal and Asif on 06.12.2019 at 09:51
 Call between A-4 Bittu Sonowal and A-2 Dhajya Konwar on
10.12.2019 at 11:20
 Call between A-4 Bittu Sonowal and Jogo on 06.12.2019 at 21:49
 Call between A-4 Bittu Sonowal and unknown person on
05.12.2019 at 21:31
 Page 34 of 120

35) These conversations of Sri Bittu Sonowal @ Bittu Sonwal @

Bitu Sonowal (A-4) can be discussed as follows:
(i) In his conversation with Asif, they discuss about one rally at Guwahati
and the possibility of arrest and on apprehension expressed by Asif, A-4
says that police might do some pushing and that they should push as
well. Thereafter, they talk about arranging money for banner and on Asif
expressing inability, A-4 asks him to meet him in Cotton College and
collect Rs 300-500 for such banner.
(ii) The conversation of A-4 with A-2 Dhajya Konwar appears to be in the
backdrop of the then ongoing protests against the citizenship law.
Leaving aside the many irrelevant aspects of their conversation, they
talk about to plan some activities. At one point, A-2 asks A-4 whether he
is able to shut down in Guwahati, whereupon A-4 replies that there is
already a shutdown and they don’t need to do anything.

(iii) In his conversation with Jogo, they talk about one protest at the
Mullockgaon residence of the then Hon’ble CM Assam where protesters
hung a poster at the gate. They talk about media coverage that the said
protest is getting. They also converse about motivating the Muttock
people to rise in protest, saying that these are simple straight forward
people. At one point, Jogo says - muttock people will rise, after 9th it will
be violent. Thereupon, A-4 says – still lift them. Once people of Chabua
and muttocks wake up, nobody will mess with our world.

(iv)In his conversation with the unknown person, he tells A-4 about one
naked protest done by some 4 persons. Subsequently, A-4 tells the
unknown person to tell people that Assamese people will not accept CAB.
He also tells him that if necessary, they will become naked again.

Materials with regard to Akhil Gogoi (A-1)

Findings in the charge-sheet with regard to A-1
 Page 35 of 120

36) Paragraph 16.18 (A) enumerates the findings against Sri Akhil
Gogoi (A-1) as stated to be revealed by the investigation. It is stated
therein that:
(i) A-1 has association with proscribed organization CPI (Maoist) and has
sent cadres of KMSS to train in Maoist camps. Accused A-1 has an
ideology of the spectrum of the CPI (Maoist) ideology.
(ii) A-1 has conspired, advocated, abetted, advised the commission of
terrorist act {as defined in Section 15(1)(a)(iii) of the UA(P) Act}.
(iii) A-1 by giving provoking speeches promoted enmity between different
classes of people on grounds of religion, race, place of birth, residence,
language which is prejudicial to maintenance of harmony.
(iv)A-1 made assertions prejudicial to harmony to the national integration.
(v) A-1 by his speeches caused disruption of public peace and causing
widespread disharmony and disaffection towards the Government
established by the law.
(vi)A-1 conspired and orchestrated the widespread blockade in the State of
Assam, thereby paralyzing the government machinery, causing
economic blockade. He provoked the mobs to cause damage to public
property and grievous injury to officials on Government duty.
(vii) The oral evidence, documents, material objects and technical
evidence collected during the course of investigation are establishing
prima facie case against the accused to prosecute.
Materials with regard to A-1
37) As has already been stated in the narration with regard to the
other 3 accused persons, in the charge-sheet dated 29.05.2020, 76
witnesses are listed as prosecution witnesses, of which the
statements of 19 witnesses have been recorded during the
investigation. These also include 2 protected witnesses, being
protected witness A and B. The statement of protected witness A
was recorded u/s 164 Cr.P.C. before the learned Metropolitan
 Page 36 of 120

Magistrate, Delhi. The rest of the statements, including that of

protected witness B have been recorded u/s 161 Cr.P.C. I have gone
through the statements of the 19 witnesses.

(i) The protected witness A in his statement has stated that he had gone to
Guwahati in the year 2008. There, he saw A-1 who is the head of KMSS
(Krishak Mukti Sangram Samiti). A-1 was in a meeting with people.
Meeting was regarding big dams and land patta. He saw it and then, he
joined KMSS. Thereafter, he stated that he went with them to villages
for meeting. He stated that one day after a meeting, five of them waited
and met one person, who was not from KMSS and was a link
man/contact man between A-1 and Maoists. That, A-1 sent five of them
with that person for Maoist training in Orissa and that, he was one
amongst the five persons. That person took all five of them including
him from Guwahati to Howrah (West Bengal), where a Maoist leader
called Dadaji took five of them from Howrah to Cuttack via
Bhubaneshwar by bus. After Bhubaneshwar, Dadaji took five of them to
Cuttack and from there, they were taken to the Maoist camps in the hills
of Orissa. There they saw people in Maoist uniform and that everyone
also had a gun. Then, all five of them stayed in the Maoist Camp for five
months. They used to shift every day. And the camp had 24 hours’
security. That, they were made to exercise in the morning and also used
to say Lal Salam. That, in the camp, the Maoist people had AK-47, Insas
guns, pistols and hand grenades. The Maoist people had also shown
them how to open and close AK-47 and Insas Gun. That, in the evening
some people used to take their class and teach them and they told and
taught them about the countries in the world which had communist
government and the communist countries. That, these people also gave
all of them books to read and this happened for few days. That, the
person who had trained them were Commander Lallu, Commander
Laxmi. That, there they also saw one Senior Commander Azaad, but
later came to know from the newspaper that he was dead. That, they
 Page 37 of 120

were also taught how to assemble people; taught how to protest, how
to involve people in the protest and how to take forward the protest.
That one day, they were told that the situation is bad and therefore they
all have to go back to Assam and accordingly, they came back to
Guwahati. That, after coming back to Guwahati, all five of them met A-
1, who asked them about what they saw and learned in the Maoist
Camp, whereupon they shared their experience and that A-1 told them
that this is not the time to work together in Assam. The witness again
said that A-1 said that it is not the time to work like that in Assam. That,
thereafter, the other four people who were with the said witnesses left,
but he did not know where. The witness further stated that he continued
working with A-1 and for few days he went to different villages in
Golaghat, Dhemaji, Sadiya and Dibrugarh and attended meetings and
told people about their losses and losses of Assam due to coming of big
Dam and also about the losses on coming of Mati Patta. That, thereafter
he left Akhil Gogoi and joined one organization namely Brihat Nodibandh
Protirudhi Manch which was opposing the Big Dam. It is stated by the
learned recording Magistrate that after the statement was read over to
the witness, the witness said that A-1 told five of them it is not situation
in Assam to work as the Maoist do, therefore as they have learned they
should go to upper Assam and get people ready. That, therefore, they
were visiting villages and getting people ready. That, at that time, he
got arrested.

(ii) The protected witness B in his statement has stated that in the year
2002, he came in contact with one person of West Bengal who was
working in Assam for Peoples War and that, by 2004, he got involved
with CPI (Maoist) party and used to attend their meetings in Guwahati.
That, he knew A-1 since 1998 when he was General Secretary of Cotton
College, Guwahati and got close with him during 2006. The witness
further stated that A-1 asked him to take some of his cadres/members
of KMSS and get them trained in ways of Maoists, whereupon he told
 Page 38 of 120

that he does not have the authority to do so, but he can talk to the
leadership of CPI (Maoist) to make it happen. That, accordingly, he
arranged a meeting of A-1 with one Sri Amit Bagchi, a member of Central
Committee, CPI(Maoist), at Golaghat in 2006. That, in the meeting, A-1
told Amit Bagchi that he would join CPI (Maoist) after 2 years, but he
needs his cadres/members to be trained in the camps of CPI(Maoist) as
soon as possible and that, Amit Bagchi agreed to the proposal made by
A-1. The witness further stated that after 2-3 months, Amit Bagchi
visited Assam again and met him in a restaurant in Guwahati and asked
him to convey to A-1 to select 10-12 cadres/members of KMSS that A-1
wants to send for training, and that later on, the training would continue
in such small batches. That, after around 20 days from this meeting, he
met A-1 in person and conveyed him the message. He told A-1 to select
10-12 cadres/members of KMSS and that when Amit Bagchi visits Assam
after 2-3 months, he would interact with those cadres/members. That,
in 2007, A-1 met him and told him to take Amit Bagchi, whenever he
comes, to Jorhat. That, during 2007, Amit Bagchi visited Assam again
and met him and he took Amit Bagchi to a location. That, 10
cadres/members (2 females and 08 males), along with A-1 were present
at the location. Amit Bagchi gave a small speech regarding their work
and aim to the members (10 cadres+ Akhil Gogoi) of KMSS there. That,
thereafter Amit Bagchi told that when time comes they would be given
training in 02 batches of 5 members each. The witness further stated
that A-1 requested Amit Bagchi to arrange funds for programs of KMSS
and expenditure that will occur on account of cadres/members to be
sent for training. The witness further stated that Amit Bagchi told him
that he would provide the funds to him and he would hand it over again
to A-1 later on. That, after 10-15 days of this meeting, he received an
amount of Rs 45,000/- in cash sent by Amit Bagchi through one Indranil,
member of CPI (Maoist) and that the witness handed over the amount
to A-1 in cash in Guwahati. The witness further stated that during later
2007, Amit Bagchi visited Assam again and that A-1 met Amit Bagchi
 Page 39 of 120

and told him that he needs funds for KMSS activities and expenditures
of cadres/members of KMSS selected for training with CPI (Maoist).
That, Amit Bagchi told A-1 that he will bear their expenditure. The
witness further stated that later in 2008, Amit Bagchi, along with him
met A-1 at Jorhat and Amit Bagchi had a secret meeting with A-1 and
that, the witness does not know the contents of the meeting. That,
during summer season of 2008, Indranil conveyed him the message of
Amit Bagchi to meet with A-1 and prepare batches of 5 cadres/members
to be sent for training. Akhil Gogoi prepared batch of 5 cadres/members
and the witness booked tickets for all 05 of them using the party funds
of CPI (Maoist). Those 5 cadres met him at Guwahati. He took the 1st
batch to Howrah by train and at Howrah, he handed them over to
Indranil for their further journey to Maoist camps and he himself stayed
at Howrah for the night. That, on the next day, the 2nd batch of 5
cadres/members arrived at Howrah and then he met them there as per
previous plans decided by A-1. He then again handed them to Indranil
for their further journey to Maoist camps and after that he returned to
Guwahati. After few days he met A-1 and informed him that all 10 cadres
have been sent to the Maoist training camps. The witness further stated
that later in 2008, he received Rs. 60,000/- in cash sent by Amit Bagchi
through the said Indranil {member of CPI (Maoist)} and that, he handed
over the whole amount to A-1 in cash in Guwahati for further activities.
The witness further stated that in 2009, he met A-1 and it was decided
that the 3rd batch of 05 cadres (3 males+ 2 females) would be sent to
Maoist training camps. That, he booked tickets for 5 cadres for their
journey from Guwahati to Howrah. That, he then met them in a meeting
at Guwahati where A-1 introduced them to him and briefed the members
about their visit to Maoist Camps. That, he recalled names of 3 of those
members. He then took all of 5 of them to Howrah by train and at
Howrah, he handed them over to Indranil for their further journey to
Maoist camps, and then he returned to Guwahati. That, after some days
he met A-1 and informed him that the 3rd batch has been sent to the
 Page 40 of 120

Maoist training camps. The witness further stated that party had been
providing regular funds to A-1 for party {CPI (Maoist)} activities, and
special funds for special programs from time to time.

(iii) Witness Sri Dipak Mudoi, listed as PW-3 in the charge-sheet dated
29.05.2020, in his statement has stated, inter alia, that he knows Akhil
Gogoi (A-1) personally. That, on 08.12.2019 in the evening he reached
his native house at Khetri along with his wife and two children by own
car for birthday celebration of his younger son and on 09.12.2019, he
was at home at Khetri. That, in the evening on 10.12.2019, he was at
his home along with his relative namely Montu Deka and at around
22:30, he called A-1 Akhil Gogoi and asked him as to where he was and
A-1 told that he is in Dibrugarh. That, he again asked A-1 Akhil Gogoi as
to what will be the agenda of the Khetri Sonapur area for the next day,
to which Akhil Gogoi replied that just close everything and block all roads
etc. That, he told A-1 to speak with one of his leaders and gave the
phone (speaker on) to his friend Sri Prafulla Baishya. A-1 Akhil Gogoi
told Prafulla Baishya that all roads across the state of Assam will be
blocked on the next day and his friend replied that they would block the
national highway. That, again A-1 Akhil Gogoi told that complete
blocked. That, his friend further said that around 400/500 people will be
gather at Khetri and they will do it. This witness Sri Dipak Mudoi further
stated that on the next day i.e. 11.12.2019, automatically national
highway, all shops and market were closed. That, at around 22:15, he
talked with Akhil Gogoi and asked whether he will come to Guwahati
next day and then Akhil Gogoi told that they have to block everywhere
in Assam and stop everything. This witness said that they are doing here
and Sri Akhil Gogoi told that they have to block everywhere in Guwahati,
stop everything and ready for any kind of protest. This witness further
stated that on the next day 12.12.2019, due to imposing curfew by the
Government, national highway, all shops and markets were closed.
 Page 41 of 120

(iv)Witness Sri Pranab Jyoti Handique, listed as PW-4 in the charge-sheet

dated 29.05.2020, in his statement has stated, inter alia, that he is the
General Secretary of Brihattar Asomiya Yuva Manch (BAYM). That, he
personally knows the present accused Sri Akhil Gogoi who is the founder
member of KMSS and he is presently chief advisor of KMSS; that, several
times, he had talked with Akhil Gogoi over his mobile no. i.e.
9435054524, regarding meetings and other social work. He also further
stated that he too opposed the CAB (now called CAA) at the behest of
Akhil Gogoi and on his direction, he arranged meetings and provoked
people to start protest against CAB and Govt. of India. He stated that
during the meetings, Sri Akhil Gogoi (A-1) used to say that at any cost
the bill should not be passed in Parliament and if the bill passes, then
they have to sacrifice for this. Further, he also stated that on
08.12.2019, he came to Guwahati for medical treatment and he stayed
at Rangpur lodge, Ganeshguri. At around 15: 10, Sri Akhil Gogoi called
him over his mobile and asked him about the programme at Guwahati.
The witness said that day after tomorrow, they are announcing the
program “a half-naked protest” and it will be organized against CAB in
front of Janata Bhawan. He also stated that the guys/people from all
the districts of Assam will be participating. After that, A-1 Akhil Gogoi
told him that Prime Minister will reach at Guwahati on 14th December,
2019 and people should be ready for fully naked protest. Then the
witness told that on that day, they will display black flag and half-naked
people and four committees of Guwahati town are already alerted and
many people from multiple districts are travelling by train. He stated that
a meeting was organized by him at Rangpur lodge Ganeshguri along
with the members of his organization (City Committee Guwahati) and
told them that Akhil Gogoi directed him to conduct naked protest during
the arrival of PM of India. He also stated that due to non-arrival of PM,
the programme (naked protest) could not be organized at Guwahati.
The witness also stated that on 10.12.2019, due to his illness he could
not participate in any protest and whole day he was in Rangpur lodge,
 Page 42 of 120

Ganeshguri. At around 18:50, A-1 Akhil Gogoi called him over his mobile
and told that thousands of people marched in a procession at Dibrugarh
to stop all essential supplies, market, National highway etc. and now
they are going to stop Sivasagar as well. Further, Akhil Gogoi directed
him to inform district committee, Sivasagar that they need to announce
over mike and bring the people to shut down whole Sivasagar and
further Akhil Gogoi told that, it would be better if they do it together.
Then he told Akhil Gogoi that one Bishnu Saikia secretary (BAYM), of
town/district committee will manage at Sivasagar. Further, Akhil Gogoi
told him to arrange everything at 10:00. Further he asked Akhil Gogoi
that will there be a bike rally, whereupon Akhil Gogoi replied that bike
rally, marching whatever it could be done, they need to shut the town
completely, tomorrow. This witness further stated that he came to know
through TV Channels that mass violations had happened in different
locations of Guwahati and some people got injury during police firing
and also stated that heard that Akhil Gogoi has been arrested by police
at Jorhat.

(v) Witness Sri Dibyajyoti Sarmah, listed as PW-5 in the charge-sheet dated
29.05.2020, in his statement has stated, inter alia, that he knows Akhil
Gogoi, who is his family friend and also the founder of KMSS and advisor
of KMSS during that relevant time. That, he talked with Akhil Gogoi over
phone many times. That, he too was against the CAB / CAA. That, on
09.12.2019, a protest was organized against CAB at Jorhat in front of
Deputy Commissioner office. When protest was going on at around
10:15, A-1 Akhil Gogoi called him at protest venue of Jorhat, regarding
the development of protest against CAB and asked how is going on. He
replied that at around 5000 people had gathered and hoped that around
20000 people will participate. This witness stated that A-1 Akhil Gogoi
told that do close everything whereupon he replied that they have
stopped everything and they visited each and every hostel. That, Akhil
Gogoi told them not to lose hope and continue the struggle. The witness
 Page 43 of 120

further stated on 11.12.2019, a spontaneous protest was going on

against CAB in front of Deputy Commissioner’s and that at around 12:00
Sri Akhil Gogoi (A-1) called him that he is coming to Jorhat and at around
18:00, A-1 along with Manas Konwar reached DC office and Akhil Gogoi
delivered a speech against CAB.

(vi)Witness Sri Tulumoni Duarah, listed as PW-6 in the charge-sheet dated

29.05.2020, was the O-C of Chabua PS at the relevant time. He has
stated, inter alia, that he joined Assam Police as Sub-Inspector on 30th
March, 2008 and was posted as Officer-in-Charge at Chabua PS since
July, 2019. He further stated that on 09.12.2019, when he along his PS
staff and Addl. SP, HQ, was performing law and order duty at Chabua
town, there was a gathering of about 6000 people headed and
addressed by Sri Akhil Gogoi (A-1), leader of KMSS. The large gathering
blocked the railway track as part of economic blockade and he saw that
they had damaged a Gypsy vehicle on duty under ITBP. That, his team
went forward to stop the mass gathering and tried to remove the
blockade but it was in vain as the gatherings were provoked by A-1.
That, the leader of the crowd A-1 Sri Akhil Gogoi and his associates
criminally conspired against police and threw stones at them and one of
the stones hit his mouth, injuring his 2 teeth of upper jaw, upper lip
grievously. That, another stone hit his head, but he was wearing a
helmet. That, immediately he was shifted to Aditya Nursing Home,
Dibrugarh, and doctor gave stitches and other treatment and that one
of these teeth had to be completely removed and another one is about
to be removed. He stated that it was an attempt of murder as a part of
their conspiracy against police who were deployed there to maintain law
and order. This witness stated that at the same time the associates of
Akhil Gogoi also damaged a white Bolero vehicle on duty under CRPF,
and they had turned the vehicle over on its side on road. That, Akhil
Gogoi and his associates by way of their actions obstructed the police
from performing their duty as well. He further stated that the gathering
 Page 44 of 120

of people was still being addressed by Akhil Gogoi, as he got injured and
was being shifted away from the site. That, in this connection an FIR no.
289/2019 dated 10.12.2019 u/s 120B, 147, 148, 149, 336,353, 326 and
307 of IPC had been lodged at Chabua PS. He stated that he produced
08 videos in a San Disk pen drive containing 08 (eight) nos. of video
footages of violent activities by KMSS/SMMS and their associates from
09.12.2019 and onwards and a copy of his medical examination report
before Sh. D.R. Singh, Addl. SP, NIA, which were subsequently seized.
It may be mentioned herein that in Special NIA Case No. 03/2020,
arising out the aforesaid Chabua PS Case No. 289/2019, A-1 was
discharged by this court vide order dated 22.06.2021.

(vii) Witness Sri Sunil Sonowal, listed as PW-7 in the charge-sheet

dated 29.05.2020, in his statement has stated, inter alia, that he is the
working president of KMSS Dibrugarh District. That, he knows A-1 for 5
years as Chief Advisor of KMSS and has regular telephonic contact with
him as well. That, A-1 was leading protest in Assam against CAB/CAA
and all KMSS associates under leadership of A-1 were planning to stop
the state machinery leading to block of highways. That, A-1 visited
Dibrugarh on 09.12.2019. When A-1 delivered a speech and provoked
the public, violent activities started in Chabua area resulting in damage
to vehicles and grievous injury to OC Chabua. That after violent
activities, all roads were blocked by protestors and the situation was very
bad. That, the witness then went away from the scene. The outcome
with regard to A-1 of the separate NIA case (03/2020) arising out of this
incident is already stated above.

(viii) Witness Sri Rahul Chetry listed as witness no. 8 in the charge-
sheet dated 29.05.2020, in his statement has stated, inter alia, that he
is the General Secretary of Dibrugarh University PG Students Union and
also associated with Assam Unit of Bharatiya Gorkha Jana Parishad.
That, he was involved in protest against CAB since 2018, in DU campus.
 Page 45 of 120

That, on 7th /8th December 2019, A-1 and his supporters came to DU
and addressed the students involved in the protest in which he
encouraged the protestors to continue their protest. That, as official
bearer of the students’ union, he had introduced A-1 to the student
protestors and expressed his gratitude to him for coming to the
university. That, A-1 gave him his number and told him to call for any
guidance and assistance to continue the protest. On 11/12/2019 around
10 pm, he called A-1 and asked A-1 that CAB has been passed and what
can be done, to which A-1 told that there is only one option - to shut
down Assam completely. That during telephonic conversation, A-1 again
told that there is no other option than to shut down Assam. On his query
regarding economic blockage, A-1 stated that the same has started as
well. That A-1 encouraged him to continue protest and shut down
Assam.

(ix)Witness Asik Ali, listed as PW-9 in the charge-sheet dated 29.05.2020,

in his statement has stated, inter alia, that he became member of KMSS
on advice of A-4. That, KMSS is the student wing of KMSS and its main
object is to support KMSS and welfare of students. That, he knows A-1
as advisor of KMSS.

(x) Witness Sri Jugal Gogoi, listed as PW-10 in the charge-sheet dated
29.05.2020, in his statement has stated, inter alia, that he is the District
President Dhemaji KMSS. That, he personally knows A-1 and has talked
may times over phone in connection with protest and party work. That,
as per directions of A-1 and A-4 they were doing protest against
CAB/CAA since November 2019. That during 09.12.2019 to 13.12.2019,
he was in Dhemaji and involved in various protests against CAB.

(xi)Witness Sri Maina Deka, listed as PW-11 in the charge-sheet dated

29.05.2020, in his statement has stated, inter alia, that he is the Joint
General Secretary of the KMSS. He has stated that he personally knows,
 Page 46 of 120

A-1 as Chief Advisor of KMSS and talked with him many times on various
occasions relating to protest, meetings and party work. That, under
leadership of A-1, they were doing protest against CAB in different parts
of Assam. That, as per direction of A-1, during the period 09.12.2019 to
13.12.2019, this witness was in Guwahati at the KMSS office and was in
close contact with the A-1 and other KMSS leaders.

(xii) Witness Sri Kulapradip Bhattacharyya, listed as PW-12 in the

charge-sheet dated 29.05.2020, in his statement has stated, inter alia,
that he went to Sivasagar jail on 01.04.2019 to execute arrest warrant
of A-1 in connection with Chabua police case no.289/2019. While doing
the arrest formalities, A-1 started briefing media persons wherein he
threatened to again start agitation against CAB in the state of Assam.

(xiii) Witness Sri Nitul Sonowal, listed as PW-13 in the charge-sheet

dated 29.05.2020, in his statement has stated, inter alia, that he was
Inspector of police, Moran. That, he went to Sivasagar jail on 01.04.2019
to execute arrest warrant of A-1 in connection with Chabua police case
no.289/2019. While doing the arrest formalities A-1 started briefing
media persons wherein he threatened to re-start the agitation in the
State of Assam.

(xiv) Witness Sri Ritumoni Hazarika, listed as witness no. 14 in the

charge-sheet dated 29.05.2020, in his statement has stated, inter alia,
that he is District President Sivasagar KMSS and organizing Secretary
Central Committee KMSS. That A-1 as the Chief Advisor of KMSS had
called various meetings and PW-14 was assigned to arrange KMSS
members to participate in Sivasagar area. That on 10th and 11th
December 2019, he held protests in Sivasagar and Amguri by blocking
National Highways and trains. On 10th December he called A-1 and
updated him about blocking of train and other protests along with
200/300 associates of KMSS. This witness further stated that Akhil
 Page 47 of 120

Gogoi, told him that he is reaching Sivasagar on 11th December 2019

and asked to arrange 200/300 boys of KMSS to execute strong protest
against CAA/CAB, blockade of National Highways for disruption of
essential supplies.

(xv) Witness Sri Bhaben Handique, listed as witness no. 15 in the

charge-sheet dated 29.05.2020, in his statement has stated, inter alia,
that he came into contact with A-1 in 2009 and on his suggestion, he
joined KMSS in 2009 but left it in 2013. He has the phone numbers of
A-1 in his mobile. That on 11.12.2019, he went to Assam Secretariat at
around 12:00 hours to see the situation in Guwahati. There was crowd
in front of Assam Secretariat and they were opposing CAB and that after
staying there 2-3 hours, he returned to his home at Guwahati. He further
stated that during the production of A-1 in NIA Court, he had met him
2-3 times and that he had met A-1 in Central Jail, Guwahati also.

(xvi) Witness Sri Jitul Deka, listed as witness no. 16 in the charge-
sheet dated 29.05.2020, in his statement has stated, inter alia, that he
is the General Secretary of Asomiya Yuva Manch and claimed to know
A-1 for past 5-6 years as a social activist and founder member of KMSS.
That, he talked with A-1 over phone during December 2019. He further
stated that he received a call from A-1 on 11.12.2019 in which A-1 told
him that he was in Jorhat and that thousands of people have gathered
at Janata Bhawan for protests in Guwahati and A-1 asked him to
repeatedly to go to Janata Bhawan as well.

(xvii) Witness Sri Poramananda Bora, listed as witness no. 17 in the

charge-sheet dated 29.05.2020, in his statement has stated that he
knows A-1 for past 9-10 years as social activist and founder of KMSS.
That, he had talked with A-1 in December 2019 over phone. That, in the
telephonic conversation on 07.12.2019, invited A-1 for a demonstration
in Jorhat on 09.12.2019, to which he replied that he had plans to be in
 Page 48 of 120

Chabua where a big programme is being planned. One Rajib Gogoi of

ATASU also talked with A-1 on the same using phone of this witness.

(xviii) Witness Sri Rajib Gogoi, listed as witness no. 18 in the charge-
sheet dated 29.05.2020, in his statement has stated that he knows Akhil
Gogoi for past 8-10 years as a social activist and founder member of
KMSS. He talked to A-1 in December 2019 over the phone of Sri
Poramananda Bora and that during the conversation, he asked A-1 to
attend their programme in Jorhat to which he replied that he had plans
to be in Panitola in morning and in Chabua at night.

(xix) Witness Dr Nabamita Das, APS, Assistant Commissioner of Police,

Cyber Crime, Guwahati, listed as PW-19 in the charge-sheet dated
29.05.2020, in her statement has stated that she received in the Cyber
Cell 7 DVDs from various police stations of Guwahati regarding the mass
protects in Guwahati in December 2019.

38) As already stated, I have also perused the statements of Sri

Naba Moran, Sri Arupjyoti Saikia, Sri Pranjal Kalita and Hussain Mohammad
Sahjahan – all of whom, however, have not been listed as prosecution

witnesses in the charge-sheet dated 29.05.2020.

(i) Witness Sri Naba Moran in his statement recorded during investigation,
has stated, inter alia, that he was associated with All Moran Students
Union whose purpose was to engage youths in social activities so that
they do not fall prey to the recruitment of ULFA. He further stated that
he knew A-1 Sri Akhil Gogoi for last 5-6 years and had meetings with
him. That, in November -December, 2019, A-1 Sri Akhil Gogoi called the
representatives of 70 organizations including Moran Students Union for
information on an umbrella organization to launch protest / agitation
against CAB. The witness stated that he participated in such meeting
and gave his consent to join the protest. He stated that he was in
Guwahati during the protest. That, on 11.12.2019, he had conversation
 Page 49 of 120

with A-1 Sri Akhil Gogoi who told him that they can do whatever they
want to do now. That, A-1 Sri Akhil Gogoi further told him – you
promised this, now he can do whatever he wants to.

(ii) Witness Sri Arupjyoti Saikia, an academician of IIT Guwahati, in his

statements recorded during the investigation, has stated, inter alia, that
he met A-1 Sri Akhil Gogoi in 2010 as he was a member of the N.C.
Saxena Forest Review Committee. That, he met A-1 Sri Akhil Gogoi
another time during a public hearing on environment issue during which
A-1 Sri Akhil Gogoi had deposed. He further stated that between 2012-
2017 he might have spoken to A-1 Sri Akhil Gogoi on matters of Assam’s
economy, society & cultural history. He denied having any discussion
with him on regional identity politics nor giving him any advice to form
political party. This witness further stated that in 2018 A-1 Sri Akhil Gogoi
spoke to him regarding the CAB before the visit of the Joint
Parliamentary Committee to Guwahati. Sri Saikia stated that he does not
hold any post in KMSS or is associated with them. He further stated that
on 7th December, he met A-1 Sri Akhil Gogoi and had a brief talk
regarding his newly released book. He further stated that on 29th
November, 2019 A-1 Sri Akhil Gogoi called Sri Saikia because he had not
come for the book release programme of Sri Saikia. Regarding calls with
A-1 Sri Akhil Gogoi in December 2019, the witness stated that he did not
recall but that he had sent 2 WhatsApp messages on 11th or 12th
December, 2019 telling A-1 Sri Akhil Gogoi to appeal to the people to
remain democratic.

(iii) Witness Sri Pranjal Kalita, in his statement recorded during the
investigation, has stated, inter alia, that during his stay at Cotton
University, he got to know Sri Bittu Sonowal. He further stated that SMSS
and KMSS worked together and are involved in each other’s works. He
further stated that A-1 Sri Akhil Gogoi advises SMSS while working for
 Page 50 of 120

KMSS. He stated that he is a member of SMSS. The rest of the statement

of this witness is not with regard to A-1 Sri Akhil Gogoi.

(iv)Hussain Mohammad Shahjahan, who is a non-listed witness, in his

statement has stated that in 2011 he met Sri Akhil Gogoi (A-1) and
joined KMSS and got involved in its activities. That he was involved in
the activities of SMSS till 2015 under the supervision of Sri Akhil Gogoi,
in coordination with A-2 Sri Dhajya Konwar and A-4 Sri Bittu Sonowal.
That, the funding of KMSS is through subscription of its 12 lacs
members. A-1 is the advisor of KMSS. That, during protests he was in
upper Assam. AASU gave a bandh call on 10th December 2019, which
was supported by KMSS/SMSS. The bandh was executed by KMSS and
SMSS from 10th December onwards to disrupt the essential supplies,
blockade of State economy and paralyzing the State machinery. The
associates of KMSS/SMSS were engaged to make the bandh successful.
In continuance of the bandh, violent activities took place from 10 th
December 2019. That the witness was present in Barpeta and
coordinated with A-1 and others. That he was getting updates from
upper Assam through Manas Konwar and Akhil Gogoi. He further stated
that during the protest activities against CAB, Sri Manas Konwar (A-3)
accompanied Sri Akhil Gogoi (A-1) to upper Assam and that they were
coordinating with Bittu Sonowal and Dhaijya Konwar at Guwahati and
with him at Barpeta. He also stated that during the recent protests, Sri
Arupjyoti Saikia was in communication with A-1, A-2, A-4 and other
associates of KMSS. He further stated that he and the aforesaid persons
coordinated during the protest activities in Guwahati around 10 th – 11th
December, 2019 also, during which violence broke out. He further stated
that during such protest activities against CAB, he was getting updates
about upper Assam through Akhil Gogoi (A-1) and Sri Manas Konwar (A-
3) and that updates from Guwahati were given by Sri Arupjyoti Saikia,
A-2 and A-4. This witness further stated that during the recent bandh
and violent activities in Guwahati during 10th to 12th, these persons were
 Page 51 of 120

at Guwahati and coordinating the execution of the bandh against CAB,

which caused economic blockade, destruction of essential supplies and
complete shutdown leading to paralyzing of state machinery.

39) I have perused the copies of the documents available on

record. Some of these documents may be enumerated as follows:
(i) Document D-34 is transcriptions and translations of intercepted voice
clips of Akhil Gogoi, Bittu Sonowal and Dhajya Konwar.
(ii) Document D-32 contains details of cases registered against Sri Akhil
Gogoi (A-1).
(iii) D-44 is a scrutiny report of the Samsung tab of A-1, which also includes
a speech of A-1.
(iv)D-47 is a scrutiny report of some videos seized from SI Tulumoni Duarah,
which also includes a speech of A-1.
(v) D-52 is scrutiny report of videos provided by the different police stations
of Guwahati, regarding the protests in December 2019 and violence
therein.
(vi)D-53 is a Facebook video downloaded
(vii) D-54 is a speech of Sri Akhil Gogoi (A-1).
(viii) D-56 is also another speech of A-1.
(ix)D-59 is a scrutiny report of videos seized from the office of DY 365 – an
Assamese news channel.
(x) D-63 is a report regarding details of properties damaged during the CAB
protest.
(xi)Document D-88 is CDR analysis report of the phone numbers of the 4
accused persons of the and some others, during the period 7 th
December, 2019 to 13th December, 2019. It indicates that during this
period, the accused Sri Akhil Gogoi (A-1) exchanged 2 calls with A-4 Bittu
Sonowal; 2 calls with Arupjyoti Saikia; 20/10 calls with Dhaijya Konwar;
6 calls with Shahjahan.
 Page 52 of 120

40) As stated above, document D-34 contains transcriptions and

translations of the intercepted voice clips of some persons, including
that of Sri Akhil Gogoi (A-1), in his conversations with co-accused
and other persons, during the relevant time. The details of these
conversations can be enumerated as follows:
(i) In his conversation with Sri Arup Borbora on 09.12.2019 at 22:37, Sri
Akhil Gogoi (A-1) and Sri Borbora discuss about protest during the
coming visit of the Japanese Prime Minister. Shri Borbora stated that
people should protest with banner welcoming the Japanese Prime
Minister and state – “Sri Narendra Modi go back; anti-community go
back.” To this suggestion of Sri Borbora, A-1 simply nodded.

(ii) In his conversation with Shri Dipjyoti Sarma, on 09.12.2019 at 10:17, Sri
Akhil Gogoi (A-1) was discussing about the protest and closing
everything. He states that there is programme at Tinsukia and that
dharna will be carried on at Chabua. A-1 asked the Sri Sarma about
joining in the protest by the Students’ Union and asked him to continue
the struggle.

(iii) In his conversation with Shri Dipak Mudoi on 10.12.2019 at 22:30, on

being asked about the agenda of Sonapur Khetri area for the next day,
Sri Akhil Gogoi (A-1) states that everything should be closed and all
roads blocked. During the conversation A-1 speaks to a 3rd person on
the same phone who says that they will obstruct all roads on the next
day tomorrow to which A-1 states that all roads across the State of
Assam shall be blocked on the next day and that he must come out on
early morning to do this. During the conversation they further talked
about blocking the National Highway and also about torchlight march
with about 200 to 300 people.

(iv)In his conversation with Sri Dipak Mudoi on 11.12.2019 at 22:13, Sri
Akhil Gogoi (A-1) stated that they have to block everywhere in Assam
 Page 53 of 120

and stop everything. On Dipak Mudoi asking for advice, A-1 states that
they have to block everywhere in Guwahati, stop everything and be
ready for any kind of protest.

(v) In his conversation with A-2 Sri Dhaijya Konwar on 04.12.2019 at 13:01,
A-1 stated that they have to start the journey from Sadiya and go to
each and every village, make people aware and convince them to
protest. A-1 also states about public meeting, making people aware and
struggling for opposing the ruling party.

(vi)In his conversation with A-2 Sri Dhaijya Konwar on 10.12.2019 at 16:26,
A-1 asks him as to whether people have gathered in large numbers at
Dispur last gate to which A-2 states that about 500 – 550 people have
gathered. A-1 tells him to do something in a positive way and to do
something to get a positive result. A-1 further asks A-2 as to whether
people have enclosed the house of a senior Cabinet minister, which is
replied in the affirmative and A-2 states that people are enclosing the
house of the said senior Cabinet minister. In the course of the
conversation, A-1 further states that they should do something in a
positive way.

(vii) In his conversation with Shri Gopal Das on 11.12.2019 at 15:19

Sri Akhil Gogoi (A-1) and the other person talked about protest where
thousands of people joined and that many people had gathered in front
of Janata Bhawan as well.

(viii) In the conversation of Sri Akhil Gogoi (A-1) with Shri Jayanta Das
on 11.12.2019 at 22:03, the said Sri Jayanta Das stated that they
stunned everything at Barpeta Howli by burning tyre and that no car can
enter and he also stated that there are many Bengali people there and
invited A-1 to come to Howli one day. A 3rd person also participated in
the conversation.
 Page 54 of 120

(ix)In the conversation of Sri Akhil Gogoi (A-1) with Shri Mridu Paban Neog
on 05.12.2019 at 22:02, Sri Neog stated that the President may not
come on 15th for the meeting between Japan and India and that they
are afraid of A-1 and apprehending of facing very threatening movement
in Assam. Sri Neog states that this was discussed in Home Ministry and
that name of A-1 has come up for discussion because they have declared
the movement as very militant.

(x) In the conversation of Sri Akhil Gogoi (A-1) with Shri Mridu Paban Neog
on 11.12.2019 at 19:55, they discussed that the President of Japan is
not coming. During the conversation one Miya Baideo also joins in. A-1
asked Neog as to what had happened in Guwahati on that day to which
Neog replies that police buses were burnt and Secretariat was gheraoed.
A-1 asked as to how many buses were burnt to which Neog replies that
it is quite a few. A-1 also talks to the said Miya Baideo and tell her that
they should not let the people get lax and then going forward they have
to break their government (hihotar Sarkar bhangibo lagibo). Miya Baideo
states that all through the day they will create chaos (Khelimeli) and
continue with the agitation to which A-1 says “all right.”

(xi)In his conversation with Shri Naba Moran on 11.12.2019 at 21:10, Sri
Akhil Gogoi (A-1) discusses about Citizenship Bill and A-1 says that the
same has been approved and that now they can do whatever they want
to. A-1 tells Sri Moran that he was promised so much and now he can
do whatever he wants.

(xii) In his conversation with Smt. Padumi Kalita on 07.12.2019, Sri

Akhil Gogoi (A-1) refers to some programme.

(xiii) In his conversation with Sri Sanjoy Baruah on 07.12.2019 at

10:06, Sri Akhil Gogoi (A-1) informs him that he will be reaching on that
night and staying at his place.
 Page 55 of 120

(xiv) In his conversation with Sri Sanjay Baruah on 04.12.2019 at

19:42, Sri Akhil Gogoi (A-1) is asked by him as to when he is coming to
Sadiya, whereupon A-1 mentions that he is planning on 11th. Sri Baruah
suggest that A-1 should reach on 10th, whereupon A-1 says that after
finishing his programme on the next day, he will plan with Sri Baruah.

(xv) In his conversation with Sri Sunil Sonowal on 08.12.2019 at 9:53,

Sri Akhil Gogoi (A-1) says that he got a meeting at Panitola on the next
day and then he will be in Chabua by the evening. A-1 further says that
there is no need for torch march protest at Chabua.

(xvi) In the conversation of Sri Akhil Gogoi (A-1) with one Sanjoy Da
on 09.12.2019 at 16:46, A-1 tells him about protest by lakhs of people
in the state, that rail roads are blocked and Assam is under total shut
down and that there is total hartal; they discuss about the bill coming to
the Rajya Sabha and A-1 tells the said person about building up of Joint
Parliamentary Committee.

(xvii) In the conversation of A-1 Sri Akhil Gogoi with one Sri Ritumoni
on 12.12.2019 at 14:45, A-1 tells him to announce to all the folks of
Sivasagar that A-1 will be staying there on the next day and that he will
reach at 11 P.M. at night. Sri Ritumoni says that they are blocking the
Amritsar Express Train and will let it go at 4:00 clock whereupon A-1 Sri
Akhil Gogoi says – “why let it go? Do not”. A-1 Sri Akhil Gogoi further
says that they should tell the Station Master that the trains should be
cancelled to which the other persons agree. A-1 Sri Akhil Gogoi further
tells the other person to announce in Sivasagar that he is going to reach
there at 11:00 P.M. and tells him to collect about 200-300 people.

(xviii) In the conversation of A-1 Sri Akhil Gogoi with Sri Rahul Chetry
on 11.12.2019 at 21:55, the other person says that since the bill has
been passed what can be done to which A-1 Sri Akhil Gogoi replies that
there is only one option left and they need to shut down complete Assam
 Page 56 of 120

and there is no other option. A-1 Sri Akhil Gogoi in course of the
conversation further states that there is no other option than to shut
down Assam. The other person asks as to whether there should be a
continuous shut down, to which A-1 says yes. The other person also asks
as to whether economic blockage has been started to which A-1 Sri Akhil
Gogoi replies that everything has started.

(xix) In the conversation of A-1 Sri Akhil Gogoi with Sri Pranab Jyoti
Handique on 08.12.2019 at 17:11, the other person talks about
announcing their programme of half-naked protest in front of Janata
Bhawan where persons from all districts of Assam will participate, to
which A-1 Sri Akhil Gogoi states that it should be made naked protest.
A-1 Sri Akhil Gogoi further states that the Hon’ble Prime Minister will
reach on 14th and that they should reach with the people to which the
other person states that they will display black flag and half naked. A-1
Sri Akhil Gogoi further states that they should make the people ready.

(xx) In the conversation of A-1 Sri Akhil Gogoi with Sri Pranab Jyoti
Handique on 10.12.2019 at 18:51. A-1 tells him that he had called the
District Committee President Sri Jadab Gogoi and that he is coming to
Sivasagar on the next day at 11:00 clock. A-1 Sri Akhil Gogoi tells Sri
Handique that he would reach Station Chariali at 11:00 Clock and he
should inform the District Committee that they need to announce over
mike and bring people to shut down whole Sivasagar and that it would
be better if they do it together. The other person says that one Sri Bishnu
Saikia also called A-1 Sri Akhil Gogoi and he asks as to whether there
will a bike rally. A-1 Sri Akhil Gogoi says that bike rally, marching
whatever can be done and that they need to shut down completely.

(xxi) In the conversation of A-1 Sri Akhil Gogoi with Sri Poramananda
Bora on 07.12.2019 at 21:50, the other person says that they have
planned a demonstration irrespective of party affiliation in front of Jorhat
Deputy Commissioner Office at 9 O’clock for which they have already
 Page 57 of 120

made rounds of Jorhat and distributed pamphlets etc. The other person
asks A-1 Sri Akhil Gogoi whether he can be around Golaghat at that time
to which A-1 replies that it would not be possible as he would be at
Panitola during the day and at Chabua during the night for which he had
already promised.

41) As stated earlier, D-44 is the scrutiny report of data on the

Samsung Tab of A-1 Sri Akhil Gogoi: -
(i) Serial No. 1 and 2 of D-44 state that no incriminating audios have been
found and serial No. 3 and 5 (including its sub-items) mentioned about
some images and indicates CAB protests, including rail roko, road
blockade, burning of tyres etc.

(ii) Serial No. 4 is a speech of A-1 Sri Akhil Gogoi in which he is talking about
the CAB protest and amongst other things, he states that only way to
withdrawal of the bill is that all people should come out in high way; that
people from each and every district of the State need to come out and
paralyze the administrative system of the Government; that by coming
out in high way they need to disrupt and disconnect all means of
communications; that they need to come out peaceful and democratic
way and shut down all Central and State Government offices by picketing
; that they need to shut down all rail roads, stop all rail services and shut
down all national high ways completely; that they need to stop the
administrative system of Assam completely and that then only
government will be afraid to implement CAB. He further stated in the
speech that he was in Dibrugarh with people and that in front of each
and every house, people burnt one tyre on high way saying that they
will not allow any vehicle to pass in front of their houses; that every
house observed bandh; that they did not accept CAB and that as long
as CAB is not withdrawn, they will not spare anybody. He further stated
that on the next day people should come out in highway and stop all
 Page 58 of 120

communication in high way; that they shut down all rail roads, disrupt
rail services and tell Central Government that they will accept CAB.

42) D-47 is a scrutiny report of videos seized by Sri Tulumoni

Duarah, O/C of Chabua Police Station and one of the witness listed
in the charge sheet: -
(i) Serial No. 1 of D-47 is a speech delivered by A-1 Sri Akhil Gogoi in which
amongst other things, he praises the people of Chabua for their protest;
he severely criticizes one senior Cabinet Minister and challenges him to
debate with A-1 Sri Akhil Gogoi on CAB
(ii) Serial No. 2, 3 and 4 shows mobs damaging one white colored vehicle.
(iii) Serial No. 6 is another speech delivered by A-1 Sri Akhil Gogoi in which
amongst other things, he tells the people to form human chain and that
all organizations of Assam should unite and make the movement
successful. He calls upon AASU, KMSS, AJYCP, leftist organizations of
Assam, all nationalist organizations of Assam and all political parties to
be unified for movement against CAB. He further states that till CAB is
not cancelled they will not spare anybody.

(iv)Serial No. 7 is the video of a police officer seen with grievous facial injury
and behind the police party, a crowd was shouting slogans – Jai Aai
Asom.

43) D-52 is the scrutiny report of data provided by different police

stations of Guwahati regarding violent protests in the city in
December, 2019 in connection with CAB. Upon perusing the same I
find that there are details regarding various videos indicating
protests, burning of tyre, road blockades, shouting of slogans and
damaging of public property.
 Page 59 of 120

44) D-54 is the speech of A-1 down loaded from a video, where
amongst other things, he calls upon people lodged inside jails in
Assam to go for protest programme if they are not released on bail
immediately. He asked as to how matured person like him in a
movement going on for long, can pelt stone to police. He further
states that they will not accept any foreigners either Hindu or
Muslim.

45) D-56 is another speech of A-1 Sri Akhil Gogoi down loaded
from Assam Diary Channel of YouTube. In the said speech, amongst
other things, A-1 Sri Akhil Gogoi calls upon the people to continue
the movement in a peaceful way; not pelt stone in anywhere; not
set fire anywhere or damage any vehicle. He called upon
revolutionary colleagues not to set fire anywhere, not to pelt stone
anywhere; not to damage any vehicle and not to create any
violence. He called upon his revolutionary colleagues to continue
movement with dedication. He compared himself with professional
revolutionary like Jay Prakash Narayan. He further stated that if they
come to arrest him they should not create violence and give
opportunity to open fire. A-1 Sri Akhil Gogoi further states that he
will tell what mass revolution is and that they will aware the mass
and stop transportation of economic and natural resources from
here, like transportation of crude oil, coal, tea, limestone etc.

46) D-59 is a scrutiny report of some videos seized from the Office
of DY-365 News Channel. Upon perusal, I find that these videos are
mostly about CAB protest in various parts of Guwahati, shouting of
slogans, procession etc.
 Page 60 of 120

Some case law principles

47) Before proceeding to analyze the aforesaid materials, it will be

relevant to enunciate some case law principles.

48) In Union of India v. Yasmeen Mohd. Zahid, (2019) 7

SCC 790, Yasmin Zahid (para 16), the Hon’ble Supreme Court
delving into section 39 of the UA(P) Act, stated that such support to
a terrorist organization must be within meaning of any of the three
causes of sub section (1) of Section 39 of the Act.

49) With regard to S.18 of the UA (P) Act, the Hon’ble Gauhati
High Court in Malsawmkimi v. NIA, 2012 SCC OnLine Gau 897
: (2014) 1 Gau LR 409 (para 27), stated as follows:
“…………… The words conspire or attempts to commit, or advocates,
abets, advises or incites, directs or knowingly facilitates the commission of a
terrorist act or any act preparatory to the commission of a terrorist act are
sufficient to bring the case of the appellants within the ambit of section 18 of
the UA(P) Act. ………………...”

50) In Manzar Sayeed Khan v. State of Maharashtra,

(2007) 5 SCC 1 (para 16), it was held that
(i) Section 153-A IPC, as extracted hereinabove, covers a case where a
person by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote,
disharmony or feelings of enmity, hatred or ill will between different
religious, racial, language or regional groups or castes or communities
or acts prejudicial to the maintenance of harmony or is likely to disturb
the public tranquility.
 Page 61 of 120

(ii) The gist of the offence is the intention to promote feelings of enmity or
hatred between different classes of people. The intention to cause
disorder or incite the people to violence is the sine qua non of the offence
under Section 153-A IPC and the prosecution has to prove prima facie
the existence of mens rea on the part of the accused.

51) The leading case on the subject of sedition is the judgment of

the Hon’ble Supreme Court rendered in the case of Kedar Nath Vs.
State of Bihar, AIR 1962 SC 955. While interpreting the meaning
of sedition U/S 124-A IPC, the Hon’ble Apex Court held in para 26
that in “The provisions of the sections read as a whole, along with the
explanations, make it reasonably clear that the sections aim at rendering penal
only such activities as would be intended, or have a tendency, to create disorder
or disturbance of public peace by resort to violence.”

52) Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, (1969)

3 SCC 429 (para 15)
“…….Criminal conspiracy as defined in Section 120-A of the IPC is an
agreement by two or more persons to do or cause to be done an illegal
act or an act which is not done by illegal means. The agreement is the
gist of the offence. In order to constitute a single general conspiracy
there must be a common design and a common intention of all to work
in furtherance of the common design. Each conspirator plays his
separate part in one integrated and united effort to achieve the common
purpose. Each one is aware that he has a part to play in a general
conspiracy though he may not know all its secrets or the means by which
the common purpose is to be accomplished. The evil scheme may be
promoted by a few, some may drop out and some may join at a later
stage, but the conspiracy continues until it is broken up. The conspiracy
may develop in successive stages. There may be a general plan to
accomplish the common design by such means as may from time to time
 Page 62 of 120

be found expedient. New techniques may be invented and new means

may be devised for advancement of the common plan. A general
conspiracy must be distinguished from a number of separate
conspiracies having a similar general purpose. ………….”

53) In Rajender v. State (NCT of Delhi), (2019) 10 SCC 623

(para 10, 17), it was held that -
10. “…………….with respect to conspiracy, it is trite law that the existence of
three elements must be shown—a criminal object, a plan or a scheme
embodying means to accomplish that object, and an agreement or
understanding between two or more people to cooperate for the
accomplishment of such object.”
17. “……………... Admittedly, the incorporation of Section 10 to the Evidence
Act, 1872, suggests that proof of a criminal conspiracy by direct evidence is not
easy to get.”

54) In State v. Nalini, (1999) 5 SCC 253 {Rajiv Gandhi

Assassination case}, the Hon’ble Supreme Court summarizing the
law on conspiracy held as follows in para 583
Some of the broad principles governing the law of conspiracy may be
summarized though, as the name implies, a summary cannot be exhaustive of
the principles.
1. Under Section 120-A IPC offence of criminal conspiracy is committed
when two or more persons agree to do or cause to be done an illegal act or
legal act by illegal means. When it is a legal act by illegal means overt act is
necessary. Offence of criminal conspiracy is an exception to the general law
where intent alone does not constitute crime. It is intention to commit crime
and joining hands with persons having the same intention. Not only the
intention but there has to be agreement to carry out the object of the intention,
which is an offence. The question for consideration in a case is did all the
accused have the intention and did they agree that the crime be committed. It
 Page 63 of 120

would not be enough for the offence of conspiracy when some of the accused
merely entertained a wish, howsoever horrendous it may be, that offence be
committed.
2. Acts subsequent to the achieving of the object of conspiracy may tend
to prove that a particular accused was party to the conspiracy. Once the object
of conspiracy has been achieved, any subsequent act, which may be unlawful,
would not make the accused a part of the conspiracy like giving shelter to an
absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to
establish a conspiracy by direct evidence. Usually, both the existence of the
conspiracy and its objects have to be inferred from the circumstances and the
conduct of the accused.
4. Conspirators may for example, be enrolled in a chain – A enrolling B,
B enrolling C, and so on; and all will be members of a single conspiracy if they
so intend and agree, even though each member knows only the person who
enrolled him and the person whom he enrols. There may be a kind of umbrella-
spoke enrolment, where a single person at the centre does the enrolling and
all the other members are unknown to each other, though they know that there
are to be other members. These are theories and in practice it may be difficult
to tell which conspiracy in a particular case falls into which category. It may
however, even overlap. But then there has to be present mutual interest.
Persons may be members of single conspiracy even though each is ignorant of
the identity of many others who may have diverse roles to play. It is not a part
of the crime of conspiracy that all the conspirators need to agree to play the
same or an active role.
5. When two or more persons agree to commit a crime of conspiracy,
then regardless of making or considering any plans for its commission, and
despite the fact that no step is taken by any such person to carry out their
common purpose, a crime is committed by each and every one who joins in the
agreement. There has thus to be two conspirators and there may be more than
that. To prove the charge of conspiracy it is not necessary that intended crime
 Page 64 of 120

was committed or not. If committed it may further help prosecution to prove

the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the common
purpose at the same time. They may join with other conspirators at any time
before the consummation of the intended objective, and all are equally
responsible. What part each conspirator is to play may not be known to
everyone or the fact as to when a conspirator joined the conspiracy and when
he left.
7. A charge of conspiracy may prejudice the accused because it forces
them into a joint trial and the court may consider the entire mass of evidence
against every accused. Prosecution has to produce evidence not only to show
that each of the accused has knowledge of the object of conspiracy but also of
the agreement. In the charge of conspiracy the court has to guard itself against
the danger of unfairness to the accused. Introduction of evidence against some
may result in the conviction of all, which is to be avoided. By means of evidence
in conspiracy, which is otherwise inadmissible in the trial of any other
substantive offence prosecution tries to implicate the accused not only in the
conspiracy itself but also in the substantive crime of the alleged conspirators.
There is always difficulty in tracing the precise contribution of each member of
the conspiracy but then there has to be cogent and convincing evidence against
each one of the accused charged with the offence of conspiracy. As observed
by Judge Learned Hand “this distinction is important today when many
prosecutors seek to sweep within the dragnet of conspiracy all those who have
been associated in any degree whatever with the main offenders”.
8. As stated above it is the unlawful agreement and not its
accomplishment, which is the gist or essence of the crime of conspiracy.
Offence of criminal conspiracy is complete even though there is no agreement
as to the means by which the purpose is to be accomplished. It is the unlawful
agreement which is the gravamen of the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy need not be formal or express, but
may be inherent in and inferred from the circumstances, especially declarations,
acts and conduct of the conspirators. The agreement need not be entered into
 Page 65 of 120

by all the parties to it at the same time, but may be reached by successive
actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime,
and that there is in each conspiracy a joint or mutual agency for the prosecution
of a common plan. Thus, if two or more persons enter into a conspiracy, any
act done by any of them pursuant to the agreement is, in contemplation of law,
the act of each of them and they are jointly responsible therefor. This means
that everything said, written or done by any of the conspirators in execution or
furtherance of the common purpose is deemed to have been said, done or
written by each of them. And this joint responsibility extends not only to what
is done by any of the conspirators pursuant to the original agreement but also
to collateral acts incidental to and growing out of the original purpose. A
conspirator is not responsible, however, for acts done by a co-conspirator after
termination of the conspiracy. The joinder of a conspiracy by a new member
does not create a new conspiracy nor does it change the status of the other
conspirators, and the mere fact that conspirators individually or in groups
perform different tasks to a common end does not split up a conspiracy into
several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal
responsibility for a conspiracy requires more than a merely passive attitude
towards an existing conspiracy. One who commits an overt act with knowledge
of the conspiracy is guilty. And one who tacitly consents to the object of a
conspiracy and goes along with other conspirators, actually standing by while
the others put the conspiracy into effect, is guilty though he intends to take no
active part in the crime.
ANALYSIS AND FINDINGS

Analysis with regard to Manas Konwar @ Manash Pratim

Konwar (A-3) and findings on the point of charge
 Page 66 of 120

55) Out of the 19 witnesses examined during the investigation and

who are listed in the charge-sheet dated 29.05.2020, the two
protected witnesses and witness no. 3, 4, 6, 8, 12, 13, 14, 16, 17,
18 and 19 of the charge-sheet dated 29.05.2020, have not
mentioned the name of Sri Manas Konwar @ Manash Pratim Konwar
(A-3).

56) Witness no. 9, 10 and 15 of the charge-sheet dated

29.05.2020, have mentioned about Sri Manas Konwar @ Manash
Pratim Konwar (A-3), but have not implicated him.

57) Witness no. 5 of the charge-sheet dated 29.05.2020 has

stated about being with Sri Manas Konwar @ Manash Pratim Konwar
(A-3) on 11.12.2019, along with A-1 Sri Akhil Gogoi, but he has not
implicated him (A-3).

58) Witness no. 11 of the charge-sheet dated 29.05.2020, has

mentioned about being in KMSS office in Guwahati during the period
– 09.12.2019 to 13.12.2019 and being in close contact with A-1 and
other leaders of KMSS, but he has not mentioned in that part of his
statement as to who those other KMSS leaders were, though in an
earlier part of his statement, he stated that he knew A-3 Sri Manas
Konwar.

59) Witness No. 7 has stated that he had seen Sri Manas Konwar
@ Manash Pratim Konwar (A-3) accompanying A-1 Sri Akhil Gogoi,
though he did not specify whether he meant A-3 accompanying A-
1 around the time of Chabua incident, but has not attributed any
 Page 67 of 120

act of violence or violence inciting provoking speech to A-3 Manas

Konwar.

60) Witnesses Sri Arupjyoti Saikia and Sri Pranjal Kalita, who were
not listed in the charge-sheet dated 29.05.2020, have not
mentioned the name of Sri Manas Konwar @ Manash Pratim Konwar
(A-3).

61) Though witness Shahjahan, who is not a listed witness has

stated about his coordinating with various persons, including A-3
during the protest activities against CAB, including the protest in
Guwahati, during which violence broke out, he has not attributed
any act of incitement, conspiracy or terrorism to A-3.

62) As stated earlier, the protected witnesses are silent about A-

3.

63) From the materials, I could not find any words or deeds on
the part of the Sri Manas Konwar @ Manash Pratim Konwar (A-3)
which can be seen to be promoting enmity between different
communities or being an act prejudicial to maintenance of harmony
in society and therefore, there are no materials to frame any charge
u/s- 153-A IPC against him. Reference may be made to the case of
Manzar Sayeed Khan (supra), where it has been held that - intention
to cause disorder or incite people to violence is an essential
ingredient of Section 153-A IPC and further, it is also necessary that
at least two groups or communities be involved.
 Page 68 of 120

64) There are also no materials whatsoever, about Sri Manas

Konwar @ Manash Pratim Konwar (A-3) making any imputations or
assertions prejudicial to national integration of our country.
Therefore, there is no case for framing any charge against A-3 u/s
153B IPC.

65) The telephone conversations and the CDR analysis definitely

indicate that Sri Manas Konwar @ Manash Pratim Konwar (A-3)
was involved in protests against the CAA and there are also some
materials about his also coordinating such protests with others,
including co-accused. However, there are no materials to indicate
any criminal agreement within the meaning of S.120 (B) IPC so as
to constitute conspiracy. There is nothing to indicate that A-3 along
with co-accused or others made agreement to commit offences and
/ or to commit some legal acts illegally. There are no prima facie
materials to indicate that he was involved in conspiracy to commit
violence and to indicate his linkage with the vandalism etc. that took
place in December 2019, during the CAA protests. Thus, there is no
case whatsoever to frame charges against Sri Manas Konwar @
Manash Pratim Konwar (A-3) u/s 120 (B) IPC.

66) Keeping in mind the principles laid down in Kedar Nath Singh
(supra), there are no materials indicating involvement of Sri Manas
Konwar @ Manash Pratim Konwar (A-3) in any act of inciting
violence, or trying to overawe the government through violence, so
as to constitute sedition. It has been held in a catena of decisions
by the Hon’ble Supreme Court and various Hon’ble High Courts by
applying the principle of Kedar Nath Singh (Supra) that if there is
 Page 69 of 120

no incitement to imminent public disorder through violence, criticism

of the Government and its policies, even if strongly worded, would
not constitute sedition. Thus, tested on the touchstone of these
principles, all emanating originally from Kedar Nath Singh (supra),
I come to the considered finding that there is no case whatsoever,
to frame charge against Sri Manas Konwar @ Manash Pratim
Konwar (A-3) u/s 124-A IPC.

67) There are no materials to support any finding that Sri Manas
Konwar @ Manash Pratim Konwar (A-3) was involved in or
attempted to do or abetted, advocated, advised an act, within the
any of the clauses of Section 15 (1) and such act done or to be done
with the intention to threaten the unity, integrity, security, economic
security, or sovereignty of India or with intent to strike terror or
likely to strike terror in the people. In the absence of materials
indicating incitement to violence and being linked to vandalism, A-3
talking about the CAA protests, participating in it and coordinating
with others about such protests, cannot by any means constitute
justification for trying A-3 for offences u/ 18 UA (P) Act. Thus, there
are no materials to frame charges against Sri Manas Konwar @
Manash Pratim Konwar (A-3) u/s 18 UA (P) Act.

68) Regarding Section 39 UA (P) Act, which criminalizes giving of

support to a terrorist organization, there are absolutely no materials
to support any such proposition with regard to Sri Manas Konwar @
Manash Pratim Konwar (A-3). The findings in the charge-sheet in
this regard have no correlation with the materials and have no legs
to stand on. Reference may also be made to Yasmin Zahid (supra).
 Page 70 of 120

I also do not find materials to frame charges against A-3 under other
penal provisions.

69) Thus, I came to the considered finding that on the basis of

the aforesaid materials, charges cannot be framed against Sri Manas
Konwar @ Manash Pratim Konwar (A-3).

Analysis with regard to Dhirjya Konwar @ Dhajya Konwar

@ Dhaijya Konwar (A-2) and findings on the point of charge

70) The two protected witnesses have not implicated the accused
Sri Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2) in
any manner. In fact, they have not mentioned the name of A-2.

71) Of the remaining witnesses of the charge-sheet dated

29.05.2020, 10 witnesses viz., witness no. 3, 6, 8, 12, 13, 14, 16,
17, 18 and 19, have not mentioned the name of Sri Dhirjya Konwar
@ Dhaijya Konwar @ Dhajya Konwar (A-2) nor made any
implications against him.

72) 5 witnesses of the charge-sheet dated 29.05.2020 viz.,

witness no. 4, 5, 9, 10 and 15 have mentioned about Sri Dhirjya
Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2), stating that
they know him as an office bearer of the KMSS, but have not
implicated him.

73) Out of the witnesses whose statements were recorded during

investigation but who were not listed in the charge-sheet dated
 Page 71 of 120

29.05.2020, the statements of witness Sri Naba Moran and Sri

Pranjal Kalita, do not mention the name of or implicate accused Sri
Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2) in any
manner. Similarly, the statement of witness Sri Arupjyoti Saikia also
in my considered view, do not implicate A-2 Dhaijya Konwar.

74) Regarding the intercepted telephone conversations of Sri

Dhirjya Konwar @ Dhaijya Konwar @ Dhajya Konwar (A-2) available
in D-34 - in the conversation of A-2 Dhaijya Konwar with A-1 Akhil Gogoi on
04.12.2019 at 13:01, they talk about a protest programme, probably in the
context of CAB. A-2 Dhaijya Konwar says they should do a padayatra,
whereupon A-1 says that they have to take vehicles or otherwise they will not
reach the destination. In another part of the conversation, A-2 Dhaijya Konwar
talks about a rally by car. Upon perusing this conversation, I am of the
considered view that there are no implications whatsoever with regard to A-2
Dhaijya Konwar.

75) The conversation of A-4 with A-2 Dhajya Konwar in D-34

appears to be in the backdrop of the then ongoing protests against
the citizenship law. Leaving aside the many irrelevant aspects of
their conversation, they talk about to plan some activities. At one
point, A-2 Dhaijya Konwar asks A-4 whether he is able to shut down
somewhere in Guwahati, whereupon A-4 replies that there is already
a shutdown and they don’t need to do anything. In the conversation
of A-2 Dhaijya Konwar with A-1 Akhil Gogoi on 10.12.2019 at 16:26,
A-2 Dhaijya Konwar says that he is at Dispur last gate, where many
people have gathered. A-1 Akhil Gogoi tells that they should do
something positive. A-1 Akhil Gogoi further asks whether people
 Page 72 of 120

have enclosed the house of a senior Cabinet minister, to which A-2

Dhaijya Konwar replies in the affirmative.

76) What emerges from the statement of Sri Maina Deka, (witness
no. 11), to the effect that - during the period – 09.12.2019 to 13.12.2019,
as per the directions of A-1, this witness was in the KMSS office in Guwahati
and in close contact with A-1 and other leaders of KMSS - is that A-2 might

have been involved in the protest activities against CAB, but the
statement does not necessarily indicate or implicate A-2 in
incitement to violence or commission of any terrorist act.

77) Document D-59 – the scrutiny report of videos (serial no. 2,

3, 5 and 8) – indicate the involvement of A-2 Dhaijya Konwar in
political protests against CAB, but does not in my considered view
contain any implications therein, especially vis-à-vis violence and
terrorism, for framing charge for these offences.

78) With regard to the conversations of A-2 Dhajya Konwar with

A-4 Bittu Sonowal and A-1 Akhil Gogoi in D-34, I am of the
considered view that it cannot be taken as indicating conspiracy to
commit offences or incitement to violence or commission of terrorist
acts on the part of A-2 Dhaijya Konwar, so as to frame charge
thereunder.

79) Upon perusal and analysis of the statements of witness Sri

Sunil Sonowal (charge-sheet witness) and Hussain Mohammad
Shahjahan (not a charge-sheet witness), it is clear that the KMSS
and its associates were involved in planning, coordinating and
 Page 73 of 120

executing protest activities against the citizenship law (CAB)

proposed and later passed by the Government of India. In this
context, judicial notice can also be taken that around the relevant
there were lot of protest activities in the State over this law, carried
out by various peoples and organizations, involving bandhs,
disruption of transport, supplies and administrative work.
Unfortunately, the protests also led to violence and damage to
property. However, there are no prima facie materials to connect
Sri Dhirjya Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2) to
incitement to violence and vandalism.

80) The voice conversations and the video footage discussed

above, also prima facie do not implicate A-2 Dhaijya Konwar.

81) From the materials, I could not find anything on the part of
Sri Dhirjya Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2)
which can be seen to be promoting enmity between different
communities or being an act prejudicial to maintenance of harmony
in society and therefore, there are no materials to frame any charge
u/s- 153-A IPC against him. Reference may be made to Manzar
Sayeed Khan (supra).

82) There are also no materials whatsoever, about Sri Dhirjya

Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2) making any
imputations or assertions prejudicial to national integration.
Therefore, there is no case for framing any charge against A-2 u/s
153B IPC.
 Page 74 of 120

83) I do not find any implications against A-2 in the statement of

witnesses including that of two protected witnesses, who have not
even mentioned the name of A-2. The telephone conversation
transcripts at the CDR analysis do reveal that the accused person A-
2 as a member of KMSS was involved in protests against the
citizenship law along with others and that he was also involved in
coordinating such protest. However, the said materials do not
indicate any conspiracy with regard to committing violence or
inciting violence. The statement of witness Shahjahan, who is not
even a listed PW, is also not sufficient in my considered view to
come to any prima facie finding for the purpose of framing charge
that A-2 was involved in any act of inciting violence, or commission
of any terrorist act or trying overawe the government through
violence himself by way of sedition. The findings stated in the
charge sheet when compared with the other materials such as
statement and documents, do not find support therein.

84) The telephone conversations, the CDR analysis and

statements of some of the witnesses definitely indicate that Sri
Dhirjya Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2) was
involved in protests against the CAA and also coordinating such
protests with others, including co-accused. However, the materials
are grossly inadequate to prima facie attribute any conspiracy.
There is nothing to indicate that A-3 along with co-accused or others
made agreement to commit offences and / or to commit some legal
acts illegally. There are no prima facie materials to indicate that he
was involved in conspiracy to commit violence and to indicate his
linkage with the vandalism etc. that took place in December 2019,
 Page 75 of 120

during the CAA protests. Thus, there is no case whatsoever to frame

charges against Sri Dhirjya Konwar @ Dhajya Konwar @ Dhaijya
Konwar (A-2) u/s 120 (B) IPC.

85) Keeping in mind the principles laid down in Kedar Nath Singh
(supra) as stated earlier, there are no materials indicating
involvement of Sri Dhirjya Konwar @ Dhajya Konwar @ Dhaijya
Konwar (A-2) in any act of inciting violence, or trying to overawe
the government through violence, so as to constitute sedition. Thus,
I come to the considered finding that there is no prima facie case
to frame charge against Sri Dhirjya Konwar @ Dhajya Konwar @
Dhaijya Konwar (A-2) u/s 124-A IPC, on the basis of the aforesaid
materials.

86) There are no materials indicating incitement to violence by Sri

Dhirjya Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2) and no
prima facie material to link him to any specific vandalism.

87) In my considered view, there are no prima facie materials to

support any finding that - Sri Dhirjya Konwar @ Dhajya Konwar @
Dhaijya Konwar (A-2) committed or attempted or abetted,
advocated, advised a terrorist act within the clauses of Section 15
(1) and that any such act was done or sought to be done with the
intention to threaten the unity, integrity, security, economic
security, or sovereignty of India or with intent to strike terror or
likely to strike terror in the people. That would be too far-fetched a
conclusion and the materials just do not support that. Thus, there
 Page 76 of 120

are no materials to frame charges against Sri Dhirjya Konwar @

Dhajya Konwar @ Dhaijya Konwar (A-2) u/s 18 UA (P) Act.

88) Regarding Section 39 UA (P) Act, there are absolutely no

materials with regard to Sri Dhirjya Konwar @ Dhajya Konwar @
Dhaijya Konwar (A-2) as well. The protected witnesses have not
uttered a word about A-2. There is no correlation between what has
been stated in the charge-sheet in this regard and the materials.
Thus, there are no materials whatsoever to frame charges against
Sri Dhirjya Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2) u/s
39 UA (P) Act

89) I also do not find materials to frame charges against A-2 under
other penal provisions.

90) Thus, I came to the considered finding that the aforesaid

materials are grossly insufficient to frame any charges against Sri
Dhirjya Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2).

Analysis with regard to Bittu Sonowal @ Bittu Sonwal @

Bitu Sonowal (A-4) and findings on the point of charge

91) In the statements of 18 out of 23 witnesses, there are no

adverse materials whatsoever against A-4.

92) The statement of witness no. 10 – Sri Jugal Gogoi that he

along with others were protesting against CAA on the directions of
 Page 77 of 120

A-1 and A-4 does not constitute any implication. People have a right
to protest in a democracy, provided they do not resort to violence.

93) What emerges from the statement of witness Maina Deka is

that A-4 might was involved in the protest activities against CAB,
but the statement does not indicate or implicate A-4 in incitement
to or commission of any violence or terrorist act.

94) The statement of H M Shahjahan, who is not even a listed

prosecution witness, even if accepted on face value indicates that
A-4 was involved in coordinating the protest activities against the
CAB, including protest activities in Guwahati, during which violence
broke out. That, he along with others were also supervising
execution of bandh in Guwahati against CAB, during which there
was some blockages and shutdowns. In the transcripts of the
intercepted voice conversations of A-4, his conversation, if any with
this witness is not available. Thus, in my considered view, primarily
on the basis of the statement of this non-listed witness, it cannot be
said prima facie that A-4 was responsible for inciting the said
violence or committing terrorist acts with intention to threaten the
economic security of India. That would be again too far-fetched a
deduction for framing charge against him for any such offence.

95) Next, I carefully analyze the transcripts of the intercepted

voice conversations available in document D-34 and my considered
findings are as follows:
 Page 78 of 120

(i) In the conversation of A-4 with Asif, his advice about the rally people
pushing back the police, if the police pushes, cannot be taken as an
implication. Similarly, in the conversation of A-4 with the unknown
person, their discussion about the naked protest also does not constitute
any implication in my considered view against accused Sri Bittu Sonowal
@ Bittu Sonwal @ Bitu Sonowal (A-4).

(ii) In the conversation of A-4 Bittu Sonowal with A-2 Dhajya Konwar, they
talk about to plan some activities. Regarding the query of A-2 Dhajya
Konwar about shut down in Guwahati, A-4 says that there is already a
shutdown and they don’t need to do anything. Upon carefully scrutinizing
this part of the statement, I am of the considered view that it cannot be
taken as indicating any incitement to violence or commission of terrorist
acts.

(iii) In the conversation of A-4 Bittu Sonowal with one Jogo, they talk
about one protest at the Mullockgaon residence of the then Hon’ble CM
Assam and media coverage of the same. They also converse about
motivating the “simple straight forward Muttock people” to rise in
protest. In this context, there is one mention of violence after 9th by the
said person Jogo whereupon A-4 still talks about motivating the muttock
people, saying that - once people of Chabua and muttock wake up,
nobody will mess with our world. I have carefully perused and analyzed
this statement of A-4. Though there is one word about violence, it is not
from the side of A-4. The said Jogo, who uttered this word, is neither an
accused in this case nor any statement recorded during investigation of
any witness by the name Jogo, though there is a witness by the name
Jugal Gogoi. In my considered view, it would be stretching things far, if
the conversation of A-4 with this witness is interpreted as constituting
prima facie incitement to commission of terrorist acts or any conspiracy
or abetment thereof.
 Page 79 of 120

96) Upon perusing, considering and analyzing the materials

available on record, as narrated and discussed above, what is
revealed is the accused Sri Bittu Sonowal @ Bittu Sonwal @ Bitu
Sonowal (A-4), along with others, is likely to have been involved in
planning, participating and coordinating the protest activities that
took place in the State of Assam, including in Guwahati, especially
in the month of December. This appears from the statements of
some of the witnesses, the transcripts of the voice conversations
and the CDR analysis. But there are no materials to implicating him
for violence or its incitement or commission of terrorism or its
abetment.

97) Further, from the materials, I could not find any words or
deeds on the part of the Sri Bittu Sonowal @ Bittu Sonwal @ Bitu
Sonowal (A-4), which can be seen to be promoting enmity between
different communities or being an act prejudicial to maintenance of
harmony in society and therefore, there are no materials to frame
any charge u/s- 153-A IPC against him.

98) There are also no materials whatsoever, about Sri Bittu

Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4) making any
imputations or assertions prejudicial to national integration of our
country. Therefore, there is no case for framing any charge against
A-4 u/s 153B IPC.

99) The telephone conversations and the CDR analysis definitely

indicate that Sri Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-
 Page 80 of 120

4) was involved in protests against the CAA and there are also some
materials about his also coordinating such protests with others,
including co-accused. However, the materials are grossly
inadequate to indicate any conspiracy. In fact, the materials are
non-existent. Though it is clear that A-4 participated in CAA
protests, there are no prima facie materials to indicate that he was
involved in conspiracy to commit violence and to indicate his linkage
with the violence or its abetment. Thus, I am of the considered
finding that there is no case whatsoever to frame charges against
Sri Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4) u/s 120
(B) IPC.

100) Keeping in mind the principles laid down in Kedar Nath Singh
(supra), there are no materials indicating involvement of Sri Bittu
Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4) in any act of causing
imminent public disorder through violence, or trying to overawe the
government through violence, so as to constitute sedition. Thus,
tested on the touchstone of the principles emanating from Kedar
Nath Singh (supra), I come to the considered finding that there is
no case whatsoever, to frame charge against Sri Bittu Sonowal @
Bittu Sonwal @ Bitu Sonowal (A-4) u/s 124-A IPC.

101) There are also no materials to support any finding that Sri
Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4) was involved
in or attempted to do or abetted, advocated, advised an act, within
the any of the clauses of Section 15 (1) and such act done or to be
done with the intention to threaten the unity, integrity, security,
 Page 81 of 120

economic security, or sovereignty of India or with intent to strike

terror or likely to strike terror in the people. In the absence of
materials indicating incitement to violence and being linked to
violence, vandalism or terrorist act, A-4 participating in CAA protests
and coordinating with others about such protests, cannot by any
means constitute justification for trying A-4 for offences u/ 18 UA
(P) Act. Thus, I come to the considered finding that there are no
materials to frame charges against Sri Bittu Sonowal @ Bittu Sonwal
@ Bitu Sonowal (A-4) u/s 18 UA (P) Act.

102) Regarding the offence of giving support to a terrorist

organization punishable u/s 39 UA (P) Act, there are absolutely no
materials with regard to A-4 also, to try him for that penal provision.
The findings in the charge-sheet in this regard are not at all
supported by the other materials. Thus, I come to the considered
finding that there are no materials to frame charges against Sri Bittu
Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4) u/s 39 UA (P) Act.

103) Summing up the discussion, the statement of witness Sri Jugal

Gogoi that on the direction of A-1 and A-4, he along with others
were protesting against CAA since November 2019 and that
between 09.12.2019 and 13.12.2019 he was involved in various
protest against CAA in Dhemaji - cannot be seen as prima facie
implicating against A-4. The statement of Maina Deka also does not
prima facie incriminate. The statement of H.M. Shahjahan, who is
not even a listed witness, about A-4 and others coordinating of
execution of bandh against CAB also do not lead to prima-facie
satisfaction about A-4 involved in conspiracy abetment etc. of
 Page 82 of 120

terrorist act or the offence of sedition, in view of other materials on

record. There are no materials linking A-4 to any incitement of
violence or involvement in violence. Though there are some
materials about his involvement in protest against CAB – which is
also admitted position of the defence. The statement of the other
witnesses does not contain prima facie implication whatsoever
against A-4. The CDR analysis indicate that he was exchanging calls
with other co-accused and other people and that he was interested
and involved in protesting against CAA. However, the transcripts of
the conversation do not contain any materials indicating prima facie
commission of offence by A-4. The materials on record also do not
indicate any offence of conspiracy, as already stated. Further, on
the basis of the materials I do not find any grounds whatsoever to
frame charges against A-4 u/s- 124A/153B/153B IPC. There are also
no materials to frame any charges under the provisions of the UA
(P) Act pertaining to offences of terrorism. Consequently, there is
no other option but to come to the inevitable finding in my
considered view that there is no justification to frame any charges
against A-4.

104) I also do not find materials to frame charges against A-4 under
other penal provisions.

105) Thus, I came to the considered finding that the aforesaid

materials are not sufficient at all, to frame any charges against Sri
Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4).
 Page 83 of 120

Analysis with regard to Akhil Gogoi (A-1) and findings on

the point of charge

Determination with regard to S. 18 UA (P) Act

107) Section 18 UA (P) Act may be reproduced hereinbelow:

18. Punishment for conspiracy, etc.—Whoever conspires or attempts to commit, or
advocates, abets, advises or 3[incites, directly or knowingly facilitates] the commission
of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be
punishable with imprisonment for a term which shall not be less than five years but
which may extend to imprisonment for life, and shall also be liable to fine.

108) Section 15 of the UA (P) Act defines a terrorist act and even
at the cost of repetition, is reproduced hereinbelow:
5. Terrorist act.—4[(1)] Whoever does any act with intent to threaten or likely to threaten the unity, integrity,
security 5[, economic security,] or sovereignty of India or with intent to strike terror or likely to strike terror in the
people or any section of the people in India or in any foreign country,—

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal
weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological
radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely
to cause—
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country;
or
5[(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality
counterfeit Indian paper currency, coin or of any other material; or]
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the
defence of India or in connection with any other purposes of the Government of India, any State Government or
any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any
public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order
to compel the Government of India, any State Government or the Government of a foreign country or 6[an
international or inter-governmental organisation or any other person to do or abstain from doing any act; or]
commits a terrorist act.
7[Explanation.—For the purpose of this sub-section,—
(a) “public functionary” means the constitutional authorities or any other functionary notified in the Official
Gazette by the Central Government as public functionary;
(b) “high quality counterfeit Indian currency” means the counterfeit currency as may be declared after examination
by an authorised or notified forensic authority that such currency imitates or compromises with the key security
features as specified in the Third Schedule.]
1[(2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the
treaties specified in the Second Schedule.]

109) In the backdrop of the aforesaid statutory provisions, now the

materials with regard to Sri Akhil Gogoi (A-1) have to be analyzed
 Page 84 of 120

to see if there are prima facie materials to try him for an offence u/s
18 UA (P) Act.

110) As stated earlier, it is clear from the provisions of Section 15

of UA (P) Act that to constitute a terrorist act, the requisite intention
is necessary - of doing the act 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.

111) In this regard, one of the submissions of the learned senior

defence counsel for A-1 was that the term “by any other means of
whatever nature” has to be read ejusdem generis on the ground
that if interpreted otherwise, the previously described means like
bombs etc. would not be necessary to be enumerated. Upon
carefully perusing the provisions of Section 15(1)(a) of the Act, the
aforesaid submission appeals to reason.

112) Further, the Hon'ble Gauhati High Court in BA No. 930/2020

(para 22), pertaining to the same accused A-1 in another case, has
also held that - ……………..The phrase “by any other means of whatever
nature” appearing in Section 15(1)(a) of the UA(P) Act is to be read, in my
considered view, with reference to and in a conjunctive manner with the
previous part of the said Section and not in isolation and disjunctively, meaning
thereby, this phrase is to be read as ejusdem generis along with the previous
part. ………………

113) I have perused the speeches of A-1 available in documents

such as D-44 and D-56. In none of the speeches of A-1, I find any
 Page 85 of 120

incitement to violence. It is a different matter that during the

protests in the State in December, 2019 against the Citizenship
Amendment Act (CAA) led by various organizations, incidents of
vandalism, damage and destruction of property unfortunately did
take place.

114) However, as stated above, from his speeches available on

record, Sri Akhil Gogoi (A-1) cannot be imputed 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.

115) I have carefully perused the statement of Sri Dipak Mudoi (W-
3), Sri Pranabjyoti Handique (W-4) and Sri Rahul Chetry (W-8). As
per witness no. 8, A-1 expressed his opinion that after passing of
CAB there is no other option then to shut down the State and that
A-1 encouraged him to continue protest and shut down.

116) In the statement of witness No. 4 Sri Pronab Jyoti Handique,

there is a sentence “marched in a procession at Dibrugarh to stop all
essential supplies, markets, national highway”. This statement of witness

No. 4 is based on a telephonic conversation with A-1 on 10.12.2019

at 18:50, in which the corresponding statement is – “At around 6:50
P.M. on 10.12.2019, A-1 called him over his mobile and told that thousands of
people marched in a procession at Dibrugarh to stop it”. Thus, I find that

the words- ‘stop all essential supplies, markets, national highway’ do not
find place in the corresponding telephone conversation transcript as
stated above. A similar significant dichotomy is seen in the
 Page 86 of 120

statement of Sri Ritumoni Hazarika and his telephone conversation

with A-1 with regard to such kind of subject matter.

117) In the statement of W-3 also, A-1 is stated to be talking about

closure and blockade. It is also revealed in the statement that on
the next day shops, markets were automatically closed. In the
statement of W-4, A-1 is stated to be talking about shut down in
town of Sivasagar. From the expression – supervising execution of the
bandh against CAB - in the statement of witness Shahjahan, it cannot

be automatically inferred prima-facie that accused had instructed

about destruction of essential supplies or that the same amounts to
abetment or commission of an act of terrorism defined in Section 15
of the Act. Further, there are also no telephone conversations with
regard to non-listed witness Shahjahan.

118) I am of the considered view that apart from other materials,

the following components of the speeches of Sri Akhil Gogoi (A-1)
has an important bearing on ascertaining his intention with regard
to terrorism and sedition and may be reproduced hereunder:
 Speech in D-56 – “my request is to continue the movement peaceful way
don’t pelt stone in anywhere; don’t set set fire anywhere or damage any
vehicle. ……Therefore my request to revolutionary comrades that don’t
set fire anywhere, don’t pelt stone anywhere; don’t damage any vehicle,
don’t create any violence……..” He called upon his revolutionary
colleagues to continue movement with dedication. He compared himself
with professional revolutionary like Jay Prakash Narayan. He further
stated that if they come to arrest him they should not create violence
and give opportunity to open fire.
 Page 87 of 120

 Speech in Sl No. 4 of D-44 – ……..that they need to come out peaceful

and democratic way and shut down all Central and State Government
offices by picketing……

119) Thus, in his speech transcript available document D-56, rather

than inciting violence, A-1 is exhorting people not to indulge in
violence and seems to be doing so fervently.

120) There is one statement at the end about stopping

transportation of natural resources from Assam. There is no material
to indicate that such 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. Moreover, that statement alone cannot be used to impute
frame charge for terrorism.

121) In this context, it might be also relevant to mention herein

that there are no materials whatsoever, about Sri Akhil Gogoi (A-
1) making any imputations prejudicial to unity and integrity of India
or national integration.

122) Only on the basis of the statements of some of the witnesses

about A-1 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.
 Page 88 of 120

123) Even if the statements of some of the witnesses attributing

talk of shut down etc. to A-1 are accepted on face value – in the
backdrop of any non-incitement to violence and appeals for peace
in his speech in D-56 – it cannot said that there is a prima facie case
for inferring that – A-1 advocated or advised causing death, destruction of
properties or disruption of essential supplies with the use of bombs, dynamite
or other explosive substances or inflammable substances or firearms or other
lethal weapons or poisonous or noxious gases or other chemicals or by any
other substances (whether biological radioactive, nuclear or otherwise) of a
hazardous nature or by any other means of whatever nature (ejusdem generis),
with the intention of threatening the unity, integrity, security, economic
security, or sovereignty of India or with intent to strike terror or likely to strike
terror in the people or any section of the people in India. Therefore, I am of

the considered view that these statements and conversations do not

make out any offence u/s 18 UA (P) Act – of conspiracy, abetment,
advise, advocacy of a terrorist act defined in S.15 of the Act.

124) It may be mentioned herein that S.2(ea) of the Act defines

economic security as follows - “economic security” includes financial, monetary
and fiscal stability, security of means of production and distribution, food security, livelihood
security, energy security, ecological and environmental security;].

125) This definition was inserted by the same amendment in 2013,

which inserted sub-clause (iiia) in S.15(1)(a) of the Act. S.15(1)(a)
(iiia) of the act reads – [(iiia) damage to, the monetary stability of India by way of
production or smuggling or circulation of high quality counterfeit Indian paper currency, coin
or of any other material; or].

126) There is a connection between the definition of “economic

security” in S.(ea) of the Act and the nature of the offence defined
 Page 89 of 120

in S.15(1)(a)(iiia) of the Act, both of which were inserted by the

same amendment in 2013.

127) In this regard, a reference may be made to – Zameer Ahmed

Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5
SCC 246, wherein at para 76, it was held that – The offences within
the meaning of S.15 of the UA (P) Act are related to the defence of India and
are covered by Entry 1 of the Union List.

128) Para 76 and 77 can be gainfully reproduced hereunder:

76. “……………….. The concept of the offence of “terrorist act” under
Section 15 of UAPA essentially postulates a threat or likely threat to
unity, integrity, security and sovereignty of India or striking terror
amongst people in India or in foreign country or to compel the
Government of India or the Government of a foreign country or any
other person to do or abstain from doing any act.
77. The offence of terrorist act under Section 15 and the offence of
unlawful activity under Section 2(1)(o) of UAPA have some elements in
commonality. The essential element in both is the challenge or threat or
likely threat to the sovereignty, security, integrity and unity of India.
While Section 15 requires some physical act like use of bombs and other
weapons, etc., Section 2(1)(o) takes in its compass even written or
spoken words or any other visible representation intended or which
supports a challenge to the unity, sovereignty, integrity and security of
India. The said offences are related to the defence of India and are
covered by Entry 1 of the Union List.”

129) In the backdrop of the aforesaid discussion, I am of the

considered view that ordinary bandhs, blockades, shut downs as
part of some protests, unaccompanied by incitement to violence
 Page 90 of 120

would not come within the ambit of the expression – “threatening the
economic security of India” in S.15(1) of the Act. Rather, the said

expression, has a much graver connotation.

130) As already stated, there are no materials to link A-1 personally

and vicariously, with the vandalism and property damages that took
place during the protests in December 2019. At the relevant time,
there were overlapping agitations led by various organizations,
during which unfortunately, vandalism also took place. Materials to
support prima facie linkage of A-1 personally and vicariously, with
specific incidents of vandalism, are not there in my considered
opinion.

131) In view of the above and in the context of the materials

indicating that A-1 in his speeches did not incite violence and rather
appealed to the people to maintain peace and not indulge in
violence, (document D-56), the statements of some witnesses
attributing talk of shut down, blockade and closure on the part of
A-1 - cannot be constituted to mean prima facie that A-1 advocated
or advised commission of a terrorist act with the intention to
threaten the unity, integrity, sovereignty, security or economic
security of India or with an intention to strike terror in the people.
In my considered view, interpreting otherwise would be incorrect
and too far-fetched a conclusion, stretching the definition of Section
15 beyond permissible limits, for the purpose of framing against A-
1 for offence of terrorism. Further, the fact that there is no an iota
of materials about A-1 making any imputations prejudicial to the
 Page 91 of 120

unity, integrity and sovereignty of our country, also has a bearing

on coming to this finding, for the purpose of framing charge.

132) 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 UA (P) Act. That
in my mind, is beyond the intention of the legislature. There can be
other laws to address that.

133) The following observations of the Hon’ble Supreme Court in

Yakub Abdul Razak Memon v. State of Maharashtra, (2013)
13 SCC 1, regarding the real nature of terrorism is worth
reproducing:

The term “terrorism” is a concept that is commonly and widely used in

everyday parlance and is derived from the Latin word “terror” which
means the state of intense fear and submission to it. There is no
particular form of terror, hence, anything intended to create terror in the
minds of general public in order to endanger the lives of the members
and damage to public property may be termed as a terrorist act and a
manifestation of terrorism. Black's Law Dictionary defines terrorism as:
“Terrorism.—The use or threat of violence to intimidate or cause panic,
esp. as a means of affecting political conduct.” (8th Edn., p. 1512.) –
(para 809).

Terrorism is a global phenomenon in today's world and India is one of

the worst victims of terrorist acts. Terrorism has a long history of being
used to achieve political, religious and ideological objectives. Acts of
terrorism can range from threats to actual assassinations, kidnappings,
 Page 92 of 120

airline hijackings, bomb scares, car bombs, building explosions, mailing

of dangerous materials, computer based attacks and the use of
chemical, biological, and nuclear weapons—weapons of mass
destruction (WMD). (para 810).

Terrorism means use of violence when its most important result is not
merely the physical and mental damage to the victim but the prolonged
physiological (sic psychological) effect it produces or has the potentiality
of producing on the society as a whole. Terrorism is generally an attempt
to acquire or maintain power or controlled by intimidation and causing
fear and helplessness in the minds of people at large or any section
thereof and it is a totally abnormal phenomenon. Terrorism is
distinguishable from other forms of violence as in the former, the
deliberate and systematic use of coercive intimidation is used. (Vide
Hitendra Vishnu Thakur v. State of Maharashtra [Hitendra Vishnu Thakur
v. State of Maharashtra, (1994) 4 SCC 602 :) – (para 1542).

134) Thus, I come to the considered finding that on the basis of

the aforesaid materials on record, there is no prima facie case to
frame charge against Sri Akhil Gogoi (A-1) u/s 18 UA (P) Act, to try
him for any offence of conspiracy, abetment, advocacy of a
terrorism.
Determination with regard to S. 124-A IPC (Sedition)

135) Section 124-A IPC may be reproduced hereunder:

124A. Sedition.—Whoever by words, either spoken or written, or by signs, or by

visible representation, or otherwise, brings or attempts to bring into hatred or contempt,
or excites or attempts to excite disaffection towards, 11***the Government established
by law in 12[India], 13***shall be punished with 14[imprisonment for life], to which fine
may be added, or with imprisonment which may extend to three years, to which fine
may be added, or with fine.
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of
enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means, without exciting or
 Page 93 of 120

attempting to excite hatred, contempt or disaffection, do not constitute an offence under

this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other
action of the Government without exciting or attempting to excite hatred, contempt
or disaffection, do not constitute an offence under this section.]

136) As already referred to in an earlier part of the order, the

leading case on the subject of sedition is the judgment of the
Hon’ble Supreme Court rendered in the case of Kedar Nath Vs.
State of Bihar, AIR 1962 SC 955. While, interpreting the
meaning of sedition u/s 124A IPC, the Hon’ble Apex Court held in
para 26 that in “The provisions of the sections read as a whole, along with
the explanations, make it reasonably clear that the sections aim at rendering
penal only such activities as would be intended, or have a tendency, to create
disorder or disturbance of public peace by resort to violence.”

137) This decision of the Hon’ble Apex Court rendered way back in
1962, still hold the field and has been relied upon by the Hon’ble
Apex Court itself and several Hon’ble High Courts over the years till
date. In Kedar Nath Singh (supra), the ratio is that public disorder
by use of violence is essential ingredient, for the offence of sedition.
In various subsequent decisions, the law of sedition has been
discussed keeping in mind the cardinal principles laid down in Kedar
Nath Singh (supra). Even though the Hon’ble Supreme Court upheld
the law, but redefined its interpretation to prevent misuse.

138) As stated in the earlier narration and discussion, since there

are no materials regarding incitement to violence by Sri Akhil Gogoi
(A-1) and lack of materials linking him personally and vicariously to
the vandalism, property damages etc. during the CAA protests, it is
 Page 94 of 120

not possible to come to any prima facie finding that A-1 caused
public disorder through incitement of violence or tried to overthrow
duly elected legitimate Government through violent means, so as to
try him for sedition.

139) In a recent case - Umesh Kumar Sharma v. State of

Uttarakhand, 2020 SCC OnLine Utt 707, the Hon’ble
Uttarakhand High Court discussed S.124-A IPC and made the
following observations in para 83 and 85:
83. There are many heavy words like ‘hatred’, ‘contempt’, ‘incites’,
‘disaffection’ used in Section 124-A IPC. It defines as well as punishes, the
actions given thereunder. The heading of this section is “Sedition”. The word
as such is not used in the section. A provision, which was not in the initial Penal
Code, 1860 and added subsequently, in the year 1870. It is said that the draft
Penal Code, 1860 had this provision, but it could not be added due to mistake.
In the year 1870, India was not independent, it was being governed by the
Crown through Secretary of State. Indians did not have any say in the
governance at that point of time. They were not part of decision making
process. At that point of time, we were not governing ourselves. We were
governed by outsiders. No voice in governance. Today, India, a sovereign
country, is a democratic republic.
85. The Constitution of India gives freedom of expression to each one
with reasonable restrictions as given under Article 19 of the Constitution. Long
back, when Bal Gangadhar Tilak was being prosecuted for sedition, he stood
and said “the law may be rigid; the law may be harsh. Stand between me and
the law and protect me because I represent the liberty of the press.”6 Mahatma
Gandhi when tried for the charges under Section 124-A IPC before Mr. C.N.
Broomfield, I.C.S., District and Sessions Judge, Ahmedabad, had on 18.03.1922
said “In my opinion, the administration of the law is thus prostituted, consciously or
unconsciously, for the benefit of the exploiter……Section 124 A, under which I am happily
charged, is perhaps the prince among the political sections of the Penal Code, 1860 designed
 Page 95 of 120

to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If
one has no affection for a person or system, one should be free to give the fullest expression
to his disaffection, so long as he does not contemplate, promote, or incite to violence…….”

140) Thus, in view of the above discussion, I come to considered

finding that materials do not make out a case for framing charge
against Sri Akhil Gogoi (A-1) u/s 124-A IPC.

Determination with regard to S. 120(B) IPC

141) As stated above, I have already arrived at the finding that

there are no materials to frame charge against Sri Akhil Gogoi (A-
1) for conspiracy to commit terrorism.

142) Section 120(B) of the Indian Penal Code (IPC) which defines
conspiracy is a substantive offence and criminalizes a mere
agreement to commit an offence. Some of the leading principles on
the law of conspiracy have already been noticed earlier.

143) Testing the materials on the touchstone of those principles, I

do not find anything therein (in the materials) to commence trial
against Sri Akhil Gogoi (A-1) for the offence of conspiracy
simpliciter and / or conspiracy to commit any offences other than
terrorism. Exchanging telephone calls with co-accused and
coordinating protests against CAA in December 2019, in the absence
of other significant materials, would not suffice to impute
conspiracy, for the purpose of framing charge thereunder.
 Page 96 of 120

144) Moreover, considering the complete absence of lack of

materials regarding conspiracy with regard to accused A-2, A-3 and
A-4, the finding in the charge sheet about conspiracy by A-1 u/s
120(B) IPC falls through, for framing charge thereunder.

145) In this regard, reference may be made to Topandas v. State

of Bombay, AIR 1956 SC 33 : 1956 Cri LJ 138 (para 6)
wherein it was held as follows - Criminal conspiracy has been defined in
Section 120-A of the Indian Penal Code: “When two or more persons agree to
do or cause to be done (i) an illegal act, or (ii) an act which is not illegal by
illegal means, such an agreement is designated a criminal conspiracy”. By the
terms of the definition itself there ought to be two or more persons who must
be parties to such an agreement and it is trite to say that one person alone can
never be held guilty of criminal conspiracy for the simple reason that one cannot
conspire with oneself.

146) Thus, in view of the above discussion, I come to the

considered finding that there are no materials to frame charge
against accused Sri Akhil Gogoi (A-1) u/s 120(B) IPC.

Determination with regard to S. 153-A/ 153-B IPC etc.

147) In Manzar Sayeed Khan v. State of Maharashtra,

(2007) 5 SCC 1 (para 16), it was held that
 Section 153-A IPC, as extracted hereinabove, covers a case where a
person by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote,
disharmony or feelings of enmity, hatred or ill will between different
religious, racial, language or regional groups or castes or communities
 Page 97 of 120

or acts prejudicial to the maintenance of harmony or is likely to disturb

the public tranquility.
 The gist of the offence is the intention to promote feelings of enmity or
hatred between different classes of people. The intention to cause
disorder or incite the people to violence is the sine qua non of the offence
under Section 153-A IPC and the prosecution has to prove prima facie
the existence of mens rea on the part of the accused.”

148) In Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431,

where it was stated in para 11 – “This Court has held in Balwant Singh v.
State of Punjab (1995) 3 SCC 214: 1995 SCC (Cri) 432] that mens rea is a
necessary ingredient for the offence under Section 153-A. ………………..”

149) In Bilal Ahmed Kaloo (supra) itself, the Hon’ble Supreme

Court held in para 15 that – feature of S.153-A IPC being promotion of
feeling of enmity, hatred or ill will “between different” religious or racial or
linguistic or regional groups or castes and communities, it is necessary that at
least two such groups or communities should be involved.

150) Tested against these principles, from the materials perused I

have not found any words or deeds on the part of accused Sri Akhil
Gogoi (A-1) which can be seen to be promoting enmity between
different communities or being an act prejudicial to maintenance of
harmony in society so as to frame any charge u/s 153-A IPC.

151) As already stated earlier during earlier discussion, there are

no materials whatsoever about Sri Akhil Gogoi (A-1) A-1 making
any imputations and aspersions prejudicial to national integration.
 Page 98 of 120

152) Accordingly, I come to the considered finding that there is no

case for framing charges against Sri Akhil Gogoi (A-1) u/s 153-A /
153-B IPC.

153) Further, from the materials, I do not find any prima facie case
for framing charge (s) against Sri Akhil Gogoi (A-1) under other
penal provisions.

Determination with regard to S. 39 UA (P) Act

154) Section 39 of the UA (P) Act punishes the offence of giving

support to a terrorist organization.

39. Offence relating to support given to a terrorist organisation.—(1) A person commits the
offence relating to support given to a terrorist organisation,—
(a) who, with intention to further the activity of a terrorist organisation,—
(i) invites support for the terrorist organization; and
(ii) the support is not or is not restricted to provide money or other property within the meaning
of section 40;or
(b) who, with intention to further the activity of a terrorist organisation, arranges, manages or
assists in arranging or managing a meeting which he knows is—
(i) to support the terrorist organization; or
(ii) to further the activity of the terrorist organization; or
(iii) to bead dressed by a person who associates or professes to be associated with the terrorist
organisation; or
(c) who, with intention to further the activity of a terrorist organisation, addresses a meeting for
the purpose of encouraging support for the terrorist organisation or to further its activity.

(2) A person, who commits the offen cerelating to support given to a terrorist organisation
under sub-section (1) shall be punishable with imprisonment for a term not exceeding ten
years, or with fine, or with both.

155) On the face of it, the statements of protected witnesses A and

B appear implicating. However, on a slightly closer look, I am of the
considered view that they suffer from significant infirmities, even for
the purpose of framing charge.

156) For example, except for one instance, all other activities
referred to, have taken place before 2009 when CPI (Maoist) was
 Page 99 of 120

still not a banned terrorist organization. Even with regard to the one
instance of 2009, the statement of PW-B is completely vague as to
which part of 2009, the said activity took place. This is very
significant because as per a Gazette Notification dated 22.06.2009
of Government of India, CPI (Maoist) was declared a banned
terrorist organization only with effect from 22.6.2009. Therefore,
even if the statement of the protected witness is accepted on face
value, the possibility of the said activity of 2009 having taken place
prior to 22.06.2009, when CPI (Maoist) was yet to be banned,
remains wide open. Thus, clearly two views have emerged for the
prima-facie a determination on the point of charge. In this context,
a reference may be made to the leading case of Sajjan Kumar
(Supra) in which one of the principles laid down regarding
consideration of charge, is that - if two views emerge and there is
no grave suspicion but only perhaps suspicion, the Court would be
justified in discharging the accused.

157) Secondly, the periods of time referred to by the protected

witnesses regarding the activities were of 2004, 2006, 2007, 2008,
2009. But their statements were recorded in 2020, i.e., after a gap
of more than 11-14 years. For example, though P.W-A has
mentioned about the incident of 2008 and his participation in those
activities, his statement before the Metropolitan Magistrate of Delhi
was recorded on 03.03.2020 - after a gap of 12 (twelve) years.
Similarly, though protected witness B has mentioned about activities
for the periods 2004, 2006, 2007, 2008 and 2009, his statement
was recorded by investigating authority on 06.05.2020 - after a gap
 Page 100 of 120

of 11 to 16 years. There is no indication that the witnesses were

absconding. Such inordinate delay in recording the statements of
these two witnesses dilutes their veracity and inadequately satisfies
the judicial conscience of this Court to solely rely upon them to
frame charges against A-2 u/s 39 UA (P) Act. This is also in view of
the fact that the nature of the statements of P.W- A and B do not
find any support whatsoever from the statements of other witnesses
and other materials. Witness no. 15 - Sri Bhaben Handique who
claimed to be Organizing Secretary of KMSS in 2009, in his
statement before NIA has not uttered a word on the lines of what
has been stated by protected witnesses A and B, regarding any
liasioning with CPI (Maoist) before or after it got banned.

158) The ingredients of section 39 UA (P) Act may be discussed as

follows:

159) Upon perusing the ingredients of Section 39 UA (P) Act, I find

that the following acts would constitute an offence of giving support
to a terrorist organization
 If a person invites support for a terrorist organization (by way of money,
property or other things etc.) with an intention to further activity of the
terrorist organization.
 If a person addresses a meeting for the purpose of encouraging support
for a terrorist organization, with the intention to further the activity of
the terrorist organization.
 If a person organizing / manages/assist in organizing - a meeting to
support a terrorist organization or further the activity of the terrorist
organization or to be addressed by a person associated with the terrorist
 Page 101 of 120

organization - and such act is done with the intention of furthering the
activity of the terrorist organization.

160) As already narrated earlier, in the case of Union of India v.

Yasmeen Mohd. Zahid, (2019) 7 SCC 790, Yasmin Zahid (supra),
the Hon’ble Supreme Court discussing section 39 of the UA(P) Act,
had held that such support to a terrorist organization must be within
the meaning of any of the three causes of sub section (1). The
relevant para may be gainfully reproduced hereunder: For Section 39
UAPA to get attracted, support to a terrorist organisation must be within the
meaning of either of three clauses viz. clauses (a), (b) and (c) of sub-section
(1) (para 16).

161) From the ingredients of Section 39, it is also clear that to

constitute an offence under that section, the activities mentioned
therein, have to be done with the requisite mens-rea i.e., with the
intention of furthering the activity of a terrorist organization.

162) It is well settled that the penal statute has to be interpreted

strictly and more stringent the statute, stricter has to be the
interpretation. Thus, a penal provision like Section 39 of the UA (P)
Act has to be interpreted strictly so that it criminalizes only those
activities of giving support to terrorist organization which the
legislature intended to punish.

163) In the backdrop of the aforesaid position, with regard to the

statements of PW-A and PW-B, even if the aspect of date on
22.06.2009 is overlooked and the statements are accepted, it is
 Page 102 of 120

doubtful whether said materials prima-facie constitute giving

support to a terrorist organization, with the requisite mens rea of
furthering its activity, as to fall within the meaning of either of three
clauses viz. clauses (a), (b) and (c) of sub-section (1) of S. 39 UA (P) Act
{Reference: Yasmeen Mohd. Zahid (supra)}.

164) However, as already discussed, the aspect of date of

22.06.2009 cannot be overlooked and that has an important bearing
on this determination.

165) Nevertheless, on or overall view of the matter the ingredients

of Section 39 UA (P) Act do not seem to exist prima-facie against A-
1 to justify framing of charge against him u/s- 39 of the UA (P) Act.

166) There is another aspect in the statements of PW-A and PW-B.

Even if they are accepted on face value and considered
incriminating, the statements are inculpatory with regard to them.
Now, in the absence of any other materials whatsoever to support
PW-A and B, I am of the considered view that the same should not
be relied on to frame charge u/s- 39 UA (P) Act. In this regard, a
reference may be made to Suresh Kr. Bubharmal Kalani v.
State of Maharashtra (1988) 7 SCC 377 (para 7), where the
Court held that - the confession of one Sri Surjya Rao cannot be
used to frame charges against the accused Kalani, in the absence
of other materials to do so.

167) Thus, in view of the above discussion, I of the considered view

that only on the basis of these materials, charge u/s 39 of the UA
 Page 103 of 120

(P) Act cannot be framed, as the same apart from suffering from
basic infirmities – as discussed above – are also prima facie
inadequate to do so.

Additional Materials submitted by NIA / Prosecution

168) It may be mentioned herein that in this case, on the
investigation materials pertaining to the main charge-sheet dated
29.05.2020, the learned prosecution started charge hearing on
16.03.2021 and concluded on 10.06.2021, after arguments on
various dates in between. Thereafter, the respective learned
defence counsels commenced their charge arguments on
22.06.2021 and concluded on 24.06.2021. On 24.06.2021, the
learned prosecution prayed that they may be given an opportunity
to give a brief reply to the defence argument on charge, which was
allowed and date was fixed on 30.06.2021, on the prayer of the
prosecution, submitting further that the learned Advocate-General
Assam would address the said reply on behalf of the
prosecution/NIA.

169) On 28.06.2021, the prosecution vide petition no. 192/2021

submitted the statement of a witness (indicated as witness no. 77)
recorded by the NIA on 27.06.2021, with the prayer that he should
be declared as Protected Witness C, which was allowed
considering the apprehensions expressed therein.

170) Thereafter, on 29.06.2021, vide petition No. 195/2021, the

NIA has submitted a supplementary report by way of an additional
charge sheet dated 29.06.2021, incorporating the said statement of
 Page 104 of 120

P.W-C therein, and a document indicated as D-91 containing

photograph identification memorandum and also one object in the
form of DVD indicated as Material Object No.13. The defence vide
petition no. 196/2021, filed an objection to the same. The learned
defence was furnished with the copies u/s 207 Cr.P.C.

171) S.173(8) Cr.P.C. empowers the investigating authority to

continue further investigation, after submission of report u/s 173(2)
Cr.P.C. In this regard, reference may be made to Vinay Tyagi v.
Irshad Ali, (2013) 5 SCC 762, wherein in para 22, the Hon’ble
Supreme Court with regard to Section 173 (8) Cr.P.C. held that - the
scope of further investigation is restricted to the discovery of further oral and
documentary evidence. Its purpose is to bring the true facts before the Court
even if they are discovered at the subsequent stage to the primary
investigation. The report submitted in pursuance of further investigation is
commonly described as “supplementary report” as the subsequent investigation
is meant and intended to supplement of the primary investigation conducted
by the empowered police officers. Another significant feature of further
investigation is that it does have the effect of wiping out directly or indirectly
impliedly the initial investigation conducted by the investigating authority.

172) Another important principle has been laid down in para 42 of

Vinay Tyagi (supra) and the said paragraph is reproduced
hereinunder –
“42. Both these reports have to be read conjointly and it is the
cumulative effect of the reports and the documents annexed thereto to
which the court would be expected to apply its mind to determine
whether there exist grounds to presume that the accused has committed
the offence. If the answer is in the negative, on the basis of these
 Page 105 of 120

reports, the court shall discharge an accused in compliance with the

provisions of Section 227 of the Code.”

173) Thus, though the power of police for further investigation u/s-
173 (8) Cr.P.C. does not seem to have any statutory limit and it has
also been interpreted as having a wide ambit, but the spirit of the
law laid down in para 42 of Vinay Tyagi (supra), in my considered
view is that all the materials gathered by the investigating authority
should be available, as far as possible, with the Public Prosecutor
before the commencement of charge hearing so the Public
Prosecutor has a complete picture of those materials. This should
be so even if the investigating officer needs a little more time to
complete the investigation. This is also helpful for the Court to better
adjudicate the point of charge, apart from saving the valuable time
of the Court.

174) Now, coming back to the instant case, accordingly, on

30.06.2021, the learned Advocate General, Assam appeared on
behalf of the NIA. In this case, the prosecution has argued on the
case regarding charge over a period of almost three months – from
16.03.2021 to 10.06.2021. Thereafter, the defence completed the
argument on 24.06.2021, as already mentioned. Considering the
long period of time for which the matter has been pending at the
stage of charge hearing, the learned prosecution Advocate General,
Assam representing the prosecution and Sri Borthakur, learned
defence counsel were requested to submit and complete their reply
and arguments, if any (on the additional materials, comprising just one
relevant photo and statement), on 30.06.2021 itself, so that the order
 Page 106 of 120

on the point of charge can be passed expeditiously without further

delay, as the same has been pending for long and one accused is
an UTP and if charge is framed, the case can be taken to the next
stage. Moreover, the long pendency of this case at the stage of
charge hearing has delayed pending charge hearings in other NIA
matters in this court, in which accused persons are in custody. The
learned defence counsel submitted that they just support the
written objection filed by them. On the other hand, the prosecution
sought an adjournment, seeking 10 days’ time. It may be mentioned
herein that date was fixed on 30th June 2021, on the prayer of the
prosecution, as stated in para above. The court considered the said
prayer as not justified, in the backdrop of the aforesaid facts and
circumstances. In this case, the NIA and the prosecution has availed
sufficient time for investigation and charge hearing respectively. It
may be mentioned herein that charge-sheet was filed on 29.05.2020
itself. Therefore, the court was of the considered view that in the
interests of justice, there should be any more delay whatsoever on
the part of the prosecution or defence, even with regard to the
additional charge-sheet and that arguments, if any, on the same
should have been addressed promptly. The court was also not
willing to countenance any possible delaying tactics on the part of
the prosecution, in the interests of justice. Accordingly, the
prosecution prayer for adjournment was rejected vide order dated
30.06.2021 and the case was fixed for order on the point of charge.

Analysis of the Additional Materials and Findings thereon

with regard to the point of charge
 Page 107 of 120

175) With regard to the statement of PW-C, it is necessary to

reproduce the same hereunder:
“On being asked about Mr Akhil Gogoi am voluntarily disclosed
that, I know he runs many organizations namely 1) Krishak Mukti
Snagram Samity, 2) Mod Mukto Akhom, 3) Cha Srahmik Mukti, 4) Chatra
Mukti, 5) Nari Mukti, and many more. Mr. Akhil Gogoi is the actual chief
of all organization. Mr. Akhil Gogoi runs his organization in Assam with
Maoist style.
They extorted money through his associates, party member or
voluntaries of his organization, he first raised demand for money to the
industrialists of non-Assamese and Assamese business man. If his
demand not fulfilled then he started to create pressure through using
media and in the plea of RTI. He is very cleaver he never protests at the
time of purchase of land or any infrastructure construction. When
business man invests a large amount and he is in middle of a business
project, then Mr. Akhil Gogoi demand money as levy. Mr. Akhil Gogoi
demanded in crores for this type of extortion, he even gathered people
by means of giving money Rs. 250/- to Rs. 150/- and also provide them
food and alcohol free.
Another style of extortion he he do that he stopped lorries or
trucks of Supari (Beetle Nuts), Ada (Ginger), Haldi (Turmeric), Dhan
(Paddy) in highways, mostly in forest areas by his party people. Mr. Akhil
Gogoi does to settlement in yearly and monthly payment basis and as
per scale of business. If business man not paid the levy to Mr. Akhil
Gogoi then his men beat drivers and do damage to the truck. Even Mr.
Akhil Gogoi demands form trucks coming to Assam with fish, eggs and
Paan Pata. No trucks can enter Assam from outside without paying levy
to Mr. Akhil Gogoi.
Mr. Akhil Gogoi also demands money from business man of
outsider who runs whole sale business with sugar cane product in the
false plea of their making illegal alcohol. This extortion is running in the
name of “Mod Mukto Akhom”.
The leader of Nari Mukti Mr. Akhil Gogoi is also runs a dirty
business in the name of “Nari Mukti” he trapped business man and high
government officials in honey trap and then do black mail to the person
and demand money for settlements or used them as and when required.
To run it successfully Mr. Akhil Gogoi also does some good social work
like settlement of rifts in families to create a good image of Nari Mukti
sangathan.
 Page 108 of 120

Another style of extortion of Mr. Akhil Gogoi is using Tea labours

of Assam. In Assam there are fallow lands, which are not Tea garden
after British period, but they adjoining area. If any person purchase the
land and started to do some business then Mr. Akhil Gogoi send his party
members who are belongs to tea labour union “Cha Srahmik Mukti” and
creates problem to the business man by agitation and dharna gherao.
And then place high demand of money to settlements.
Mr. Akhil Gogoi also runs illegal cattle business which is smuggled
to Bangaladesh. With this he gets supports from Muslim community
mostly they are Silothaiya Muslims and Bengali Muslims. This business
runs through Muslim members of Krishak Mukti.
I know this because I personally experienced and suffered a lot.
Mr. Akhil Gogoi demanded money fifty lakhs from me for one year. He
threatens me that I will be killed anytime and his people are watching
me and my family every moment. He also declared that he runs much
more strong and lethal organization than ULFA a terrorist organization.
I know Mr. Akhil Gogoi from last five years as an antisocial criminal and
extortionist, who creates terror to the business man till he not go for
monetary settlements. When am not responded to his demand he called
me to do meeting with him, but I am not willing to bow down for his
illegitimate demand because I am not doing any wrong business and
paying tax to the government of Assam as well as government of India.
My family pressurized me to leave Assam and started newly in other
state of India. Anyhow Mr. Akhil Gogoi came to know about our plan
then he also threaten me and I have come to know that he his Krishak
Mukti Snagram Samity has association with association with “MAOISTS”
who have a network in all over India and they will kill me and my family
in accident or other means.
On being asked about identifying of his photographs, I voluntarily
ready to identify his photos, I know him since I passed 10 th exam. Mr.
Akhil Gogoi is living my area.”

176) Document D-91 contains three photographs. In photograph

no. 1, the photo marked 1 is stated to be of Akhil Gogoi in Saranda
jungle of Jharkhand, where he allegedly went to meet Maoist
leaders. Photograph No. 2 is stated to be a photograph of A-1 during
agitation led by him. Photograph No. 3 is stated to be the photo of
 Page 109 of 120

A-1 during his NIA custody. The DVD, contains the same photograph
no. 1.

177) Upon perusing the statement of Protected Witness C, I find

that apart from two statements pertaining to Maoists, which I shall
take up later, the rest of the statement reveal various allegations of
a serious nature, which if accepted as true, would almost constitute
an organized crime of extortion, cattle smuggling, blackmailing
people with honey trapping, criminal intimidation etc. The subject
areas of these alleged activities would be outside the jurisdiction of
this court, which is only guided by the Schedule of the NIA Act,
which is reproduced hereinbelow:
THE SCHEDULE [See section 2(1) (f)] 1
[1. The Explosive Substances Act, 1908 (6 of 1908);
1A. The Atomic Energy Act, 1962 (33 of 1962);]
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
3. The Anti-Hijacking Act, 2 [2016 (30 of 2016)];
4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of
1982);
5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002 (69 of 2002);
7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of
Unlawful Activities) Act, 2005 (21 of 2005); 8. Offences under— (a) Chapter VI of the Indian
Penal Code (45 of 1860) [sections 121 to 130 (both inclusive)];
3 [(b) Sections 370 and 370A of Chapter XVI of the Indian Penal Code (45 of 1860); (c)
Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of1860);
(d) Sub-section (1AA) of section 25 of Chapter V of the Arms Act, 1959 (54 of1959);
(e) Section 66F of Chapter XI of the Information Technology Act, 2000 (21 of2000).]

178) However, with regard to these allegations, if the police of the

State or any appropriate investigating authority having jurisdiction,
finds them to be verifiable facts, meriting an investigation, they can
always pursue the due process of law.
 Page 110 of 120

179) As regards the statement of PW-C, the allegations made

therein have no correlation with the charge-sheeted sections –
S.120(B) IPC r/w S.18 UA (P) Act and S.124-A/153-A/153-B IPC.
These allegations also have no correlation with the main subject
matter of this case - about the violence and vandalism during the
CAA protests in the State in December 2019. I have also noticed a
significant discrepancy regarding the age of P.W-C indicated from
his statement and the age stated in the case diary.

180) The allegations made by Protected Witness C proceeds on a

trajectory, quite different from the factual matrix of the instant case.
The P.W-C in his statement is also silent about any date, time and
place of the allegations. The NIA has chosen not to get the
statement of this witness recorded before Magistrate u/s 164 Cr.P.C.

181) Now, I come to the two materials in the statement of PW-C,

to determine whether they correlate to S.39 UA (P) Act. These two
sentences are: a) That, A-1 runs his organization like a Maoist style; b) A-1
has links with Maoists. It may be stated that no other details, including

periods etc., have been mentioned with regard to these two

statements. Admittedly, KMSS is not a banned organization under
the Schedule of the UA (P) Act.

182) Upon perusing these statements carefully vis-à-vis the

ingredients of S.39 UA (P) Act, as already narrated and discussed in
detail above – I find that even if the statements are accepted, they
solely are grossly inadequate to frame charge u/s 39 UA (P) Act
against Sri Akhil Gogoi (A-1), which, as already discussed, requires
 Page 111 of 120

specific activities with the requisite mens rea as defined in the

section.

183) Coming to the photographs, in the photograph no. 1, some

persons seems to be practicing martial arts with their hands. Upon
comparing photographs 2 and 3 of A-1 with photograph-1, from the
bare eye, I do not find any resemblance between the photo of A-1
in photo no. 2 and 3 and the person indicated as A-1 in photo no.
1. Though the DVD has been accompanied by a certificate under S.
65B of the Evidence Act, the photo is not accompanied by any
forensic report. Further, there is no indication whatsoever regarding
the time period or date on which the photograph was taken. From
the photo, there is no indication as to where it was taken and on
what date, month, year.

184) In this regard, D-91 which is the photo identification memo

proceedings, where these photos were stated to be identified by
Protected Witness B on 27.06.2021 during identification proceeding
conducted on 27.06.2021 at the NIA Office at Guwahati. It is stated
in D-91 that during the said identification proceedings, the identifier
P.W- B stated that A-1 probably visited Saranda Jungle to meet
Maoist leaders to establish link with KMSS cadres. He also stated
that the said photograph allegedly of A-1 was probably taken at
Saranda Jungle of Jharkhand. Again, here also, PW-B does not
mention any date, month, year. Thus, it appears prima facie that
identifier himself is vague about whether it is in Saranda jungle or
whether A-1 went there to meet Maoist. The aspect of lack of
resemblance to the naked eye has already being mentioned. There
 Page 112 of 120

is no indication regarding date, month, year of the photo, in either

the photo or the photo identification proceedings. Therefore, even
if it is assumed for a moment that the photo is of A-1, the same is
grossly inadequate to try A-1 u/s 39 UA (P) Act.

185) I found an endorsement in the case diary pertaining to these

additional materials, about some photograph of A-1 taken in Maoist
camp in 2009, without however mentioning any time, date, month
of taking such photograph in 2009. As already discussed above, the
date is important because this organization – CPI (Maoist) was
banned in law as a terrorist organization only with effect from
22.06.2009. Further, if the photo was taken in 2009 as indicated at
a place in the case diary, the investigating authority took
inordinately long to bring it before the Court (on 29.06.2021),
especially when the identifier of the photo – Protected witness B
was examined by NIA on 06.05.2020.

186) Thus, these materials – photo and photo identification memo

– are grossly inadequate to frame any charge against Sri Akhil Gogoi
(A-1), including any charge u/s 39 UA (P) Act, which, as already
discussed requires specific ingredients prima facie and strict
interpretation, even for framing charge thereunder.

187) In the case diary pertaining to the additional materials I find

a letter written by the accused A-1 alleging ill treatment and threats
while he was in NIA custody. There are also newspaper clippings in
the additional case diary regarding these allegations made by A-1.
Amongst the allegations in the letter found in additional case diary, he has
 Page 113 of 120

stated that he was asked to seek mercy for organizing CAA protests; that, he
was given some lucrative monetary and political offers with an assurance that
if he accepts he will be bailed out. It is also alleged that when he refused the
offers, he was threatened with death or jail upto ten years and that he was
threatened that he would not be allowed to come out from jail. Though these

allegations are serious, they are unverified and no petition in this

regard, has also been brought before the Court on behalf of A-1
regarding these allegations. If A-1 was indeed threatened with
death or jail by NIA investigators, he ought to have brought this
serious matter to the notice of this Court during his productions.

188) In is worthwhile at this point to refer to the S Selvi (supra),

where it has been laid down that - one of the principles to be kept in
mind by the court at the stage of 227/228 Cr.P.C. is to see whether the
investigation materials suffer from any basic infirmities.

189) Thus, upon perusing the additional materials – statement of

protected witness-C, photo identification proceeding report (D-91) and
materials exhibit (photo in DVD) – and in view of the above discussion,

I am of the considered finding that the said materials are also prima
facie grossly insufficient to frame any charges against the accused
persons, including accused Sri Akhil Gogoi (A-1).

190) With regard to the protected witnesses A, B and C, it is

surprising that, while the statements of protected witness P.W- A
and B have been recorded more than 10 (ten) years after the
alleged activities; on the other hand, the statement of protected
witness-C has been recorded after completion of the main charge
hearing by both the learned prosecution as well as the learned
 Page 114 of 120

defence over an extended period. Further, if the photo no. 1 in D-

91 was taken in 2009 as indicated at a place in the case diary, one
fails to understand why the investigating authority took so long to
bring it before the Court (on 29.06.2021), especially when the
identifier of the photo – Protected witness B was examined by NIA
was examined on 06.05.2020 itself, as already discussed. The
findings in the charge-sheet with regard to accused A-2, A-3, A-4
were found by this court to bear almost no correlation to the
materials perused. Even with regard to A-1, the correlation was
found to be non-existent with regard to some sections and with
regard to other sections, the materials were found to be inadequate.

191) Before concluding the discussion, this court is constrained to

observe, in the interests of justice, that the court has found the
conduct and approach of the investigating authority / prosecution
in this case, to be discouraging, to say the least. The court has high
expectations from a premier investigating agency like the NIA,
entrusted with the profoundly important task of protecting our
country and us, citizens from the menace of terrorism. The court
hopes and expects that, such high standards will be upheld, for sake
of the country and this one will be just an exception.
Conclusion
192) On the basis of the materials, including the additional
materials, and in view of the above narration and discussion, I come
to the considered findings, that there are no prima facie materials
to frame charges against the accused persons – Sri Akhil Gogoi (A-
1), Sri Dhirjya Konwar @ Dhajya Konwar @ Dhaijya Konwar (A-2),
Sri Manas Konwar @ Manash Pratim Konwar (A-3), Sri Bittu
 Page 115 of 120

Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4). The materials are

also compatible with the innocence of the accused persons - which
is one of the principles to be looked by the court, at the time of considering the
point of charge – as laid down in Amit Kapoor (supra).

193) In a case, if there are no materials or no sufficient materials

to frame charges against the accused person (s), the ends of justice
demands that the accused be discharged, without making him suffer
the process of trial. In this regard, reference may be made to the
judgment of the Hon’ble Supreme Court in the case of State of
Debendra Nath Padhi (supra), where it has been held that -
S.227 Cr.P.C. pertaining to discharge, has been incorporated in Code to
eliminate harassment to accused persons when the evidential materials
gathered after investigation fall short of minimum legal requirements. In P.

Vijayan (supra) also, it has been held that - Section 227 was
introduced in the Code to avoid wastage of public time when a prima facie case
was not disclosed and to save the accused from avoidable harassment and
expenditure.

194) The aforesaid principles of law have also been kept in mind to
arrive at the finding that there is no case for framing charge not
only against A-2, A-3 and A-4, but with regard to A-1 as well and
that all the four accused persons are liable to be discharged.

Some general observations

195) Though the law of sedition continues in our statute book, its
colony legacy cannot be overlooked. In this context, it would be
 Page 116 of 120

interesting to refer to what was stated by Eric Weston, C.J. in the

case of Tara Singh v. State, 1950 SCC OnLine Punj 113 : AIR
1951 P&H 27 : 1951 Cri LJ 449 (at page 198) that, “India is now a
sovereign democratic State. Governments may go and be caused to go without
the foundations of the State being impaired. A law of sedition thought
necessary during a period of foreign rule has become inappropriate by the very
nature of the change which has come about.”

196) Recently, a writ petition - W.P.(Crl.) No. 106 / 2021 : Kishore

Chandra Wangkhemcha & Anr. V. Union of India – is pending before the

Hon’ble Supreme Court, seeking re-examination of S.124-A IPC and

even seeking reconsideration of Kedar Nath Singh (supra), due to
passage of time.

197) Nevertheless, as long as it remains on the statute book in the

present form, for enforcing the law on sedition, it is desirable for
the investigating authorities to be continually trained to conform to
the parameters of the law of sedition laid down by the Hon’ble
Supreme Court in Kedar Nath Singh (Supra). This is to ensure
that while enforcing this penal law by police and other investigating
agencies, the ambit of sedition does not get stretched beyond
permissible limits imposed by the Hon’ble Supreme Court.

198) The offence of terrorism is a great challenge of our times and

many countries have become victim of it. India is no exception and
rather, has been a significant victim of terrorism for long years. The
observations of the Hon’ble Supreme Court in Yakub Abdul Razak
Memon v. State of Maharashtra (supra) regarding the
dimensions of real terrorism have already been enumerated.
 Page 117 of 120

199) It is not doubt that every country needs a well drafted, strict
and effective anti-terrorism law. The country would remain safe
from terrorism when real terrorist crimes are promptly and
effectively investigated; efficiently prosecuted, correctly adjudicated
and upon conviction, appropriately sentenced – all done within the
most reasonable possible time. The stringency of an anti-terrorism
law is natural, considering the menace it seeks to prevent.

200) In this regard, when we look at the UA (P) Act 1967, it is found
that, in a way, the stringency is more with regard to bail, which may
have its own justification, rather than with regard to sentencing.

Though UA (P) Act, 1967 has offences punishable with death or life
term, the minimum punishment prescribed for some offences is 5
years only and in one section, 7 years. On comparision, it is found
that in the NDPS Act, 1985, such prescribed minimum sentence for
some offences therein is 10 years; while in the updated POCSO Act,
2012 – such prescribed minimum sentence for some offences
therein is 20 years. Under the UA (P) Act, 1967 in its present form,
if the court finds prima facie materials while adjudicating bail with
regard to offences in Chapter IV and VI – which are in a way the
main offences – the court is statutorily prohibited u/s 43(D)(5)
proviso UA (P) Act, from granting bail to the accused and if the
same attains finality, such an accused is likely to remain an under-
trial prisoner during the trial – which might take months, in the best-
case scenario and even years, in the worst-case scenario. In such a
situation, needless to say that, trials have to be expedited by courts
like us. If a criminal justice system, for some reasons, is unable to
 Page 118 of 120

give bail to an accused, his trial should preferably get completed

within one year, so that his constitutional and human rights of
presumption of innocence and speedy trial is not violated.

201) In the aforesaid backdrop, considering the nature of the UA

(P) Act, while enforcing this law on the ground, the law enforcement
agencies, again have to be take care to see that the enforcement
remains within the strict parameters of the law and does not get
stretched beyond permissible limits imposed by the statute itself and
the principles laid down by the Hon’ble Apex Court and various
Hon’ble High Courts of the country. They also should be sensitized
and trained continually in this. If this precaution is not taken, two
serious consequences might follow:
 Persons who are not really guilty of terrorism or who might be guilty of
other penal offences, might get unnecessary roped in within the ambit
of the stringent anti-terrorism law, with its limited scope for bail.
 Secondly, if the enforcement of the anti-terrorism law gets stretched
beyond permissible limits, then over a period of time, it might carry the
risk of diluting the requite continuous focus of the anti-terrorism law
itself, on the real terrorist crimes, thereby weakening the fight against
terrorism.

202) In a catena of decisions, the Hon’ble Supreme Court has

upheld the rights of the citizens to freedom of speech and
expression, in all its manifestations - which is undoubtedly, the soul
of our cherished democracy - while repeatedly emphasizing that all
these freedoms are subject to non-incitement of violence. The
 Page 119 of 120

mantra of all these freedoms being subject to not inciting or

resorting to non-violence is a common thread.

203) In this context, the observations of the Hon’ble Supreme Court

in Bimal Gurung v. Union of India, (2018) 15 SCC 480 (para
37) may be seen: - “Articles 19(1)(a) and (b) gives constitutional right to
all citizens freedom of speech and expression which includes carrying out public
demonstration also but public demonstration when becomes violent and
damages the public and private properties and harm lives of people it goes
beyond fundamental rights guaranteed under Article 19(1) and becomes an
offence punishable under law.”

204) Violence, obviously has no place in our civilized world. If the

propagation and commission of violence becomes acceptable, the
survival of our civilization, as we know it, will come into question.
In this context, the following words of Mahatma Gandhi – the
greatest apostle of non-violence - may be quoted –
 “Non-violence is the greatest force at the disposal of mankind. It is
mightier than the mightiest weapon of destruction devised by the
ingenuity of man.”
 I object to violence because when it appears to do good, the good is
only temporary; the evil it does is permanent.”
 “An eye for an eye will only make the whole world blind.”

Final orders on the point of charge

205) Thus, on the basis of the materials before this court and in
view of the narration and discussion in the preceding paragraphs
and findings thereon, all the 4 (four) accused persons, namely, Sri
Akhil Gogoi (A-1), Sri Dhirjya Konwar @ Dhajya Konwar @ Dhaijya
 Page 120 of 120

Konwar (A-2), Sri Manas Konwar @ Manash Pratim Konwar (A-3)

and Sri Bittu Sonowal @ Bittu Sonwal @ Bitu Sonowal (A-4) are
hereby discharged u/s 227 Cr.P.C. Their bail bonds and sureties
stand discharged.

206) The accused UTP Sri Akhil Gogoi (A-1) shall be set at liberty
forthwith, if not wanted in any other case. Inform accordingly.

207) The instant case - Spl. (NIA) Case No. 02/2020 - stands
disposed of on the aforesaid terms.

Special Judge NIA

Assam Guwahati

PRANJAL DAS Digitally signed by PRANJAL DAS

Date: 2021.07.01 11:10:05 +05'30'