Jammu & Kashmir And Ladakh High Court: Threatening Elected Panchayat Members To Resign By Affixing Posters Not 'Unlawful Activity' Under UAPA

The Jammu & Kashmir and High Court has held that threatening the elected Panchs/ Sarpanchs to resign or face dire consequences by affixing some posters on electric poles is not a crime under Unlawful Activities (Prevention), Act, 1967.

The Court was considering an Appeal against the judgment of acquittal passed by the Court of Special Judge Designated Under NIA Act in an FIR registered on the basis that the proscribed organization Hizbul Mujahideen had affixed some posters on electric poles threatening the elected Panchs/ Sarpanchs to resign or face dire consequences.

The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar held, "The writings on the offending posters were only aimed at and intended to intimidate elected Panchs by extending them a threat that in case they do not resign from their positions they would be done away with. Such words in writing cannot be said to be intended to bring about cession or session of part of the territory of India from the Union nor does it disclaim, question, disrupt or is intended to disrupt any sovereignty and territorial integrity of India. These words can also be not understood to cause or intended to cause disaffection against India. Going by the plain definition of the term “unlawful activities” the act attributed to the respondent does not fall within the purview of the term of “unlawful activity” under Section 2(o) of the Act."

The Appellant was represented by Assisting Counsel Maha Majeed, while the Respondent was represented by Advocate Zahid Hussain Dar.

Facts of the Case

On the basis of suspicion, five persons, including the Respondent, were rounded up by the Police for interrogation. Their specimen handwriting was taken and, on comparison with the handwriting on the offending posters, the Police concluded that the affixing of the offending posters on the electric poles was handiwork of the Respondent. Accordingly, the Investigating Officer sent the specimen handwriting of the Respondent taken in the presence of the Executive Magistrate to the FSL for comparison with the handwriting on the offending posters. The statements of witnesses under Section 161 of the Cr.P.C were recorded and after obtaining the opinion from the FSL, charges were framed.

The Trial Court concluded that the prosecution had miserably failed to connect the Respondent with the commission of offence with which he was charged and accordingly acquitted the accused persons.

Reasoning By Court

The Court at the outset noted that it is abundantly clear that the offence with which the Respondent was charged by the Trial Court has not been proved by any cogent evidence.

"Other than the statement of PW-6 Altaf Ahmad, that the specimen writing taken by the police in the presence of Executive Magistrate is similar to the writing on the offending posters, there is no material connecting the respondent with the preparation and affixing of the offending posters on the electric poles in the town", the Court observed.

It explained that for an act to be termed as “unlawful activity”, it must be one which is intended or supports any claim to bring about the cession of a part of the territory of India or the secession of a part of territory of India from the Union or which incites any individual or group of individuals to bring about such cession or secession and the act or action may also fall within the term “unlawful activity” as if it disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India or which causes or is intended to cause disaffection against India.

Concluding that threatening the elected Panchs/ Sarpanchs to resign or face dire consequences by affixing some posters on electric poles is not a crime under Unlawful Activities (Prevention), Act, 1967, the Court stated that the Trial Court should have discharged the respondent of the charge and instead framed an appropriate charge under the Ranbir Penal Code.

The Appeal was accordingly dismissed.

Cause Title: Union Territory of J&K vs. Gh. Mohammad Lone

Appearances:

Appellant- Assisting Counsel Maha Majeed, Senior Additional Advocate General Mohsin Qadri

Respondent- Advocate Zahid Hussain Dar, Advocate Zahid Afzal

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