Inciting A Struggle For Secession Of J&K By Labelling It As An 'Occupied Territory' Attracts Offence Under UAPA: Jammu & Kashmir And Ladakh High Court

The Jammu & Kashmir and Ladakh High Court has held that calling for secession of Jammu & Kashmir by labelling it as an 'occupied territory' falls within the ambit of 'unlawful activity' under the Unlawful Activities (Prevention) Act, 1967.

The Court was considering an Appeal against the order of discharge drawn by the Court of Additional Sessions Judge (Special Judge) for trial of offences under Section 13 ULA(P) Act.

The division bench of Justice Sanjeev Kumar and Justice Sanjay Parihar and observed, ".......A reading of the charge sheet would show that the respondents were found inciting general public that had gathered after Friday prayers on 20th March 2015 at Bandipora market to take up a struggle in order to effect secession of Jammu & Kashmir from the Union of India. They were propagating that Jammu & Kashmir is an occupied territory and exhorting the persons present there to initiate a struggle to achieve the objective of its separation from the Indian dominion......These accusations, coupled with the statements made by witnesses under Section 161 CrPC, prima facie bring the allegations within theambit of “unlawful activity” as defined in Section 2(1)(o) of the Unlawful Activities (Prevention) Act, 1967, because the respondents were calling for and inciting a struggle for cession of J&K from the Union of India an activity punishable under Section 13(1) of the Act."

The Appellant was represented by Assisting Counsel Vice Maha Majeed.

Facts of the Case

By way of an FIR, Respondents were accused of an incident that took place on March 20, 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, for which the case was registered and investigation was set in motion.

During the course of investigation, offence under Section 19 of ULA(P) Act was found not made out. Instead, the Respondents were challaned for offence under Section 13 ULA(P) Act, as there was substantial evidence against them, for which Respondents were arrested and subsequently released on bail. The Trial Court dismissed the charge sheet by holding that, except raising of anti-national slogans, the Respondents did not act in any manner prejudicial to the integrity of the country. In absence of any proof that any law-and-order problem had arisen pursuant to the raising of anti-national slogans by the Respondents, there appears to be no material to warrant their involvement in an unlawful activity. B

The Appellant’s main argument was that the Trial Court has failed to apply its mind to the evidence available before it to frame an opinion regarding charge/discharge, and that it has travelled beyond the mandate, resulting in sifting of evidence which could not have been done. The prosecution ought to have been given liberty to adduce evidence because there was sufficient material on record to warrant the view that Respondents had indulged in commission of an unlawful activity

Reasoning By Court

The Court noted that the unlawful activity would include any claim to bring out, on any ground whatsoever, the cession of a part of the territory of India from the Union or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession

It placed reliance on Supreme Court's decision in Union of India v. Prafulla Kumar Samal and Another (1979) and State of Bihar v. Ramesh Singh (1977) wherein it was held that if there is a strong suspicion which leads the court to presume that the 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.

"In “M.E. Shivalingamurthy v. Central Bureau of Investigation”, AIR 2020 (2) SCC 768, again the principles were reiterated that while deciding discharge, only the material brought on record by the prosecution, both in the form of oral statements and documents, have got to be considered. The accused is entitled to discharge only if the statements recorded under Section 161 CrPC, which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted without being challenged in cross-examination or rebutted by the defence, cannot show that the accused committed an offence, there a case of discharge can be said to be made out", the Court observed.

Noting that the Trial Judge would be justified in refusing discharge if satisfied that strong suspicion exists, it observed, "These accusations, coupled with the statements made by witnesses under Section 161 CrPC, prima facie bring the allegations within the ambit of “unlawful activity” as defined in Section 2(1)(o) of the Unlawful Activities (Prevention) Act, 1967, because the respondents were calling for and inciting a struggle for cession of J&K from the Union of India an activity punishable under Section 13(1) of the Act."

The Appeal was accordingly allowed.

Cause Title: Union Territory of J & K vs. Ameer Hamza Shah

Appearances:

Petitioner- Assisting Counsel Vice Maha Majeed, Government Advocate Faheem Shah

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