Calling J&K ‘Occupied Territory’ And Demanding Secession Is Unlawful Activity | J&K High Court Restores UAPA Charges After Trial Court’s Discharge Held Legally Unsustainable
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar has set aside an order of discharge passed by the trial court in a matter involving alleged unlawful activity under Section 13 of the Unlawful Activities (Prevention) Act, 1967. The Division Bench concluded that the discharge order was legally unsustainable and reflected a "non-application of mind and erroneous application of law." The court restored the charge sheet against the accused and directed the trial court to proceed with framing of charge in accordance with law.
The case involved allegations that the accused had incited the public to support secession of Jammu and Kashmir from the Union of India. The trial court had discharged the accused, citing absence of violent acts and insufficient evidence. However, the High Court held that the trial court had erroneously sifted through the evidence at the charge stage, and failed to consider the definition of "unlawful activity" under the UAPA. The appeal was allowed and the trial was ordered to continue.
The Union Territory of Jammu & Kashmir filed an appeal against an order of discharge passed by the Additional Sessions Judge (Special Judge for trial of offences under the UAPA) for the districts of Baramulla, Bandipora, and Kupwara. The order pertained to FIR No. 41/2015 registered at Police Station Bandipora. The respondents in the case were accused of delivering anti-national speeches with the intention to instigate the public against the sovereignty of India and to advocate for the separation of Jammu and Kashmir from India.
The case arose from an incident on 20th March 2015, when the accused allegedly addressed a gathering after Friday prayers in Bandipora market and delivered speeches promoting secessionist views. Initially, Section 19 of the UAPA was invoked, but later, the respondents were charged under Section 13 of the UAPA. The sanction for prosecution was obtained from the competent authority.
Following this, a charge sheet was filed. As the accused were absconding, proceedings were initially conducted under Section 512 of the CrPC, which was operative at the time. With the establishment of a Special Court for UAPA cases at Baramulla via a notification dated 1st March 2020, the case was transferred there. Upon execution of warrants, the accused were apprehended and the matter was heard at the stage of charge/discharge.
The trial court, by an order dated 29th September 2021, discharged the respondents. It held that mere slogan-raising without any accompanying violence or public disorder did not constitute an offence under Section 13 of the UAPA. The court referenced the Supreme Court judgment in Balwant Singh & Ors v. State of Punjab, 1995 (3) SCC 214, where similar acts were held insufficient to constitute offences under Sections 124-A and 153-A IPC.
The Union Territory challenged this finding, asserting that the trial court had overstepped its jurisdiction at the charge stage by evaluating the entirety of the evidence, rather than limiting itself to assessing whether a prima facie case was made out. The appellant argued that the evidence, including witness statements under Section 161 CrPC, indicated that the accused had incited people to advocate for the separation of Jammu and Kashmir from India.
It was further contended that the trial court failed to appreciate the statutory definition of "unlawful activity" under Section 2(1)(o) of the UAPA, which encompasses any speech or act that supports secession or disaffection against India. The appellant emphasized that the respondents, although not members of a banned organization, had acted individually to incite separatist sentiment, which falls within the statutory ambit of unlawful activity.
Statements by multiple police officers who were present at the scene supported the allegation that the accused advocated secession. According to these statements, the accused declared that Jammu and Kashmir was illegally occupied and incited the public to struggle for its separation from India.
The prosecution argued that the accused were not simply expressing dissent but were inciting a movement for secession, which is punishable under Section 13(1) of the UAPA. The trial court’s discharge order, according to the appellant, ignored the preliminary threshold required at the charge-framing stage and instead conducted an in-depth evaluation more suited for a full trial.
The High Court recorded: "The impugned order is against law, as the trial court has resorted to conducting enquiry at charge stage and sifted the evidence as if it was finally deciding the challan." It further stated: "The court has discharged the accused without properly examining the contents of the charge and material collected thereto."
Referring to the case FIR No. 41/2015, the court stated: "Respondents were accused of an incident that took place on 20th March 2015, when after Friday prayers they delivered anti-national speech to general public that had gathered to offer prayers, with the intention to instigate the general public against sovereignty of India and to call for separation of the then state of Jammu and Kashmir from rest of India."
Quoting from the charge sheet and related witness statements, the court observed: "Respondents were found inciting general public that had gathered after Friday prayers...to take up a struggle in order to effect secession of Jammu & Kashmir from the Union of India."
The court reiterated the statutory definition under Section 2(1)(o) of the UAPA, which includes: "any action taken by such individual or association... which is intended, or supports any claim, to bring about... the cession of a part of the territory of India... or which incites any individual or group of individuals to bring about such cession or secession."
The bench noted: "Statements recorded under Section 161 CrPC, prima facie bring the allegations within the ambit of 'unlawful activity'... because the respondents were calling for and inciting a struggle for cession of J&K from the Union of India."
Regarding the trial court’s reliance on Balwant Singh, the High Court clarified: "Reliance by a trial Court on Balwant Singh... was uncalled for because in that case the accused had raised slogans in a crowded place after the assassination of the then Prime Minister... The facts in that case were clearly distinguishable."
It was emphasized that: "There is a clear distinction between the essentials of Section 124-A, 153-A IPC, and the term 'unlawful activity' as defined in Act of 1967... In the present case the matter was still at infancy and the prosecution was yet to adduce evidence."
The court also referenced Supreme Court precedents including Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366, noting: "The Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case... has been made out."
Further, citing M.E. Shivalingamurthy v. CBI, AIR 2020 SC 769: "Where there are two possible views, one giving rise to mere suspicion and the other to a grave suspicion, the trial judge would be justified in refusing discharge if satisfied that strong suspicion exists."
The High Court concluded: "We find that the impugned order is not sustainable on any count as it suffers from non-application of mind and erroneous application of law, thus, on the face of it, is perverse and is, therefore, set aside."
It further directed: "The chargesheet shall stand restored with the direction to the trial court to proceed with framing of charge against the respondents for offence under Section 13 of ULA(P) Act, and thereafter proceed to dispose of the challan in accordance with law."
The bench observed that the prosecution must be afforded an opportunity to prove its case through proper trial proceedings. The court noted that the trial court had pre-emptively dismissed the prosecution’s case at a stage where only a prima facie determination was required.
"The trial court appears to have not appreciated the version of the witnesses under Section 161 CrPC, who were present at the spot when the occurrence is stated to have happened," the High Court added. The restoration of the charge sheet was accompanied by a clear mandate to the trial court to consider the charges in accordance with law and proceed without prejudice.
Advocates Representing the Parties:
For the Petitioners: Ms. Maha Majeed, Assisting Counsel vice Mr. Faheem Shah, Government Advocate
Case Title: Union Territory of J&K vs. Ameer Hamza Shah & Anr.
Case Number: CrLA(D) No. 06/2022
Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar
