Seeking To Disturb Communal Harmony In Jammu & Kashmir: J&K High Court Restores Charges Against Two Accused Discharged By Special Judge NIA
The High Court held that the trial court erred in discharging the accused by undertaking a detailed appreciation of the evidence instead of assessing whether sufficient material existed to proceed with the trial.
Justice Sanjeev Kumar, Justice Sanjay Parihar, Jammu & Kashmir and Ladakh High Court
The Jammu & Kashmir and Ladakh High Court has set aside an order of discharge passed by the Special Judge (NIA), Jammu, and restored the charges against two accused allegedly involved in activities intended to disturb communal harmony in the Union Territory at the behest of handlers across the border.
The Court was hearing an appeal filed by the Union Territory of Jammu & Kashmir, against an order passed by a Special Judge, NIA, which had discharged the accused.
A Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar, while deciding the matter, held that, “the finding recorded by the trial Court that “there is no evidence” against the respondents is erroneous, since the record reflects grave suspicion regarding their involvement in spreading terrorism in the Union Territory of Jammu & Kashmir, pursuant to directions received from their handlers across the border in Pakistan/POK.”
Monika Kohli, Senior Additional Advocate General, appeared for the appellant Union Territory, while Advocate Surjeet Singh Andotra represented the respondents.
Background
The case, initially registered by the Jammu and Kashmir Police, was subsequently investigated under the supervision of the National Investigation Agency (NIA). The prosecution alleged that the accused were in contact with handlers based across the border in Pakistan through encrypted communication platforms such as WhatsApp and Telegram.
The prosecution further argued that the accused had transmitted photographs and videos of vital installations in Jammu and received instructions and monetary credits from foreign accounts routed through international fund transfers. The funds were alleged to be used for the procurement of electronic devices for the commission of terrorist activity.
On completion of the investigation, a charge sheet was filed invoking Sections 120-B and 121 of the IPC and Sections 18, 20, 23, 38, and 39 of the Unlawful Activities (Prevention) Act.
The Special Judge NIA, however, discharged the accused, observing that the prosecution relied primarily on confessional statements recorded by police officials and that there was insufficient corroboration to establish the allegations prima facie.
Court’s Observations
The J&K and Ladakh High Court observed that the trial Court failed to apply the settled principles governing the stage of charge as laid down by the Supreme Court in Union of India v. Prafulla Kumar Samal (1979), reiterating that at the stage of framing charge, the Court is only required to determine whether there is material raising a strong suspicion against the accused, not to weigh the evidence as would be done during trial.
The Division Bench, while deciding the matter, noted that the incriminating material seized during the investigation, which included mobile data, chats, photographs, videos, and international monetary transfers, constituted sufficient material to raise “grave suspicion” of the accused being involved in preparatory acts towards the commission of terrorism.
The Bench further observed that the respondents had shared photographs and videos with two conduits located across the border, including the location details of a correspondent of a national news channel residing in Jammu, “exposing him to potential danger from hostile elements seeking to disturb peace and communal harmony in the Union Territory of Jammu & Kashmir.”
The High Court also took note of the socio-economic background of the accused and the probability of their exploitation by elements across the border, observing that under these circumstances “the prosecution had disclosed a prima facie case meriting determination during trial.”
Conclusion
The J&K and Ladakh High Court concluded that the trial Court had committed a manifest error “by denying the prosecution an opportunity to establish the culpability of the respondents through evidence during trial”, and as such “grave prejudice has been caused to the prosecution.”
Stating that “the discharge of the respondents at this premature stage was unwarranted”, the Court accordingly set aside the discharge order passed by the Special Judge, NIA, and restored the charge sheet for fresh determination
The Court directed the parties to appear before the trial Court as notified, instructing the Trial Court to decide afresh whether a case for framing charges was made out in accordance with law, keeping in view the observations recorded by the High Court.
The appeal filed by the Union Territory of Jammu & Kashmir was allowed, and all connected applications were disposed of.
Cause Title: UT of Jammu & Kashmir v. Mohd. Anas & Sheran Nawaz Sheikh
Appearances:
Appellant: Monika Kohli, Senior Additional Advocate General.
Respondents: Surjeet Singh Andotra, Advocate.