The Jammu and Kashmir and Ladakh High Court has held that offering funeral prayers of a killed militant by the public cannot be construed to be anti-national activity.

The Bench of Justice Md. Akram Chowdhary and Justice Ali Mohammad Magrey observed thus "Offering of funeral prayers of a killed militant by the public at large, even at the instance of the respondents herein, who are stated to be elderly people of their village, cannot be construed to be anti-national activity of that magnitude so as to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution of India."

The Court made this observation while adjudicating upon an appeal challenging the grant of bail to accused persons who were charged with offence punishable under Section 13 of the Unlawful Activities (Prevention) Act (UAPA).

In this case, an active militant of HM outfit got killed during an encounter with the security forces. It was alleged that following this, a person had provoked the villagers to perform "Gaibana Namazi-Jinaza" (funeral prayers in absentia) of the said killed militant.

It was also alleged that upon his provoking, the Imam offered the Jinaza and during Jinaza the sentiments of the persons who were part of the said assembly got incited by urging them to continue struggle till freedom.

Based on this information, case was registered and during the investigation, ten accused persons were arrested for their involvement in the commission of offence under Section 13 UA(P) Act.

Additional Advocate General M.A.Chashoo appearing for the State argued that the court below did not appreciate, while deciding the bail applications, that there was sufficient evidence connecting all the accused with the commission of offence.

The Court noted that nothing incriminating was found against the accused-respondents during the investigation of the case so as to deny them bail.

"In our considered opinion, nothing incriminating against the accused-respondents has been found during the investigation of the case so as to deny them bail, the respondents herein were rightly admitted to bail by the trial court. Needles to state that in such an eventuality, the bar as contained in Section 43-D of UA(P) Act, is also not attracted. We, thus, found no ground for interference with the impugned orders, same are upheld.", the Court held.

Cause Title- Union Territory of J&K v. Javid Ahmad Shah & Ors.

Click here to read/download the Order