Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar dismissed an appeal filed by the Union Territory challenging the bail granted to an accused under the Unlawful Activities (Prevention) Act, 1967. The Division Bench upheld the trial court’s order granting bail, holding that the respondent was charged solely under Section 13 of the Act, which does not invoke the embargo under Section 43-D (5).

The Court recorded that there was no legal bar either under the UAPA or the Code of Criminal Procedure against granting bail in this instance. It held that "there is no merit in the appeal because learned counsel for the appellant has not been able to persuade us, on any tangible grounds, that the order impugned has caused any kind of prejudice to the prosecution or that it is perverse.” The Division Bench ultimately stated that the discretion exercised by the Special Judge was consistent with established legal principles, and found no reason to interfere with the order.

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The present appeal arose from an order dated 31st July 2023 passed by the Special Judge (designated court under NIA) Srinagar, granting bail to an accused charged under Section 13 of the Unlawful Activities (Prevention) Act (ULAPA), 1967. The appellant—Union Territory through Police Station Chanpora—contended that the trial court’s order was in contravention of law and had failed to consider the merits of the case.

The FIR No. 8/2022 had been registered under Sections 13, 18, 19, and 39 of the ULAPA against multiple accused, including the respondent, based on credible inputs suggesting involvement in terror-related activities. The case pertained to directions received from individuals associated with the banned terrorist organization The Resistance Front (TRF), including Momin Gulzar, Arif Hazar alias Reyan, and Jahangir Ahmad Naikoo, to revive terrorist operations in District Srinagar.

During investigation, the house of one Zahid Rashid Ganie was searched, from where a mobile phone and anti-national posters of TRF/LeT were recovered. Zahid disclosed names of five associates, and a pen drive containing objectionable photographs was recovered. These materials were sent to the Forensic Science Laboratory for expert analysis.

Allegations against the respondent specifically included acting as an Over Ground Worker (OGW) for TRF and providing logistic support for executing terrorist acts, including aiding the shooters targeting soft targets such as street vendors, migrant workers, and off-duty policemen. The respondent was also accused of radicalizing youth and encouraging anti-national activities.

Initially, the charge sheet dated 30.08.2022 named twenty accused, including the respondent. While the respondent was initially booked under Sections 13, 18, 18-B, 39, and 40 of ULAPA, the trial court discharged him from all but Section 13 on 29.10.2022. The discharge from more serious sections was under separate challenge in another proceeding.

The prosecution contended that the respondent’s continued detention was justified in light of the gravity of allegations and the fact that thirteen prosecution witnesses were yet to be examined. It argued that the trial court had improperly sifted through the evidence at a premature stage and granted bail without considering the impact on the investigation and prosecution.

The defence argued that the charge under Section 13 carried a maximum punishment of seven years and that Section 43-D (5) of the ULAPA, which imposes stringent conditions for bail, was not applicable. It further contended that the trial court had exercised its discretion appropriately, having considered all relevant material and the stage of the proceedings.

The respondent was arrested on 18.03.2022 and remained in custody until the bail order of 31.07.2023. The bail application had been filed on 22.06.2022. The trial had not commenced at the time of bail grant.

The Division Bench carefully reviewed the record and observed, "neither under the Code nor under the ULAP Act was there any legal bar on the trial Court in exercising discretion of bail in favour of the respondent." The Court noted that the respondent had been formally charged only under Section 13 of the ULAPA, which falls under Chapter III, and thus does not attract the embargo imposed by Section 43-D (5).

Quoting the Supreme Court’s judgement in Union of India vs. K Najeeb, the Court noted: “the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.”

It further cited Thawha Fasal and Ors vs. Union of India observing, “Sub-section (5) of Section 43-D is not applicable to the offence under Section 13.”

Referring to the Supreme Court’s decision in Satender Kumar Antil vs. CBI, the Court stated: “Criminal courts in general with the trial court in particular are the guardian angels of liberty... Any conscious failure by the criminal courts would constitute an affront to liberty.”

The High Court recorded that no tangible material was shown to establish a direct nexus between the respondent and banned TRF operatives. It stated, “it is not discernible from the pleadings given by the appellant as to what was the exact role played by the respondent in order to attract unlawful activity on his part.”

The Court acknowledged that the accusations were grave but reiterated legal principles governing arrests under offences punishable with imprisonment up to seven years. It stated that arrest must be supported by the necessity for investigation or prevention of further offences. The Court found that nothing incriminating was recovered from the respondent and he had remained in custody for over a year.

The Bench observed that the bail application was considered after the stage of charge/discharge, and that, “there was no question of the Trial Court having sifted the evidence because the matter was yet to proceed to trial.” The Court rejected the contention that granting bail had prejudiced the prosecution.

The Division Bench concluded that the Special Judge had correctly exercised discretion and stated: “Looking from all angles, there is no merit in the appeal because learned counsel for the appellant has not been able to persuade us, on any tangible grounds, that the order impugned has caused any kind of prejudice to the prosecution or that it is perverse.”

It further stated “Respondent is presumed to be innocent until proven guilty and if the offence alleged to have been committed by him is punishable with Seven (7) years, he was entitled to be bailed out.”

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The Court stated that the bail order had been passed after the hearing of the prosecution and held: “The order of bail has been passed after hearing the prosecution and no exception could be taken to the fact that merely because respondent has been rounded up in an offence under Unlawful Activities (Prevention) Act, bail is to be denied.”

Accordingly, the Division Bench held that the discretion exercised was lawful and did not merit interference. The Court ordered: “Resultantly, the appeal being meritless is, dismissed upholding the order of granting bail.”

Advocates Representing the Parties:

For the Petitioners: Ms. Maha Majeed, Assisting Counsel vice Mr. Mohsin Qadri, Sr. AAG

For the Respondents: Mr. Javid Iqbal Wani, Advocate

Case Title: Union Territory Th. Police Station Chanpora vs. Sameer Ahmad Koka

Case Number: CrlM No. 1636/2023 in CrlA(D) No. 66/2023

Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar

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