Jammu & Kashmir High Court – Srinagar Bench
Gh. Nabi Rather vs Union Territory Of Jammu & Kashmir on 13 August, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlA (D) No. 6/2025
Reserved On: 8th of August, 2025
Pronounced On: 13th of August, 2025
Gh. Nabi Rather, Age: 57 Years
S/O Late Wali Mohammad Rather
R/O Kachloo, Handwara, District Kupwara
Through daughter Nazira Nabi, Age: 21 Years.
... Appellant(s)
Through: -
Mr Hussain Rashid, Advocate.
V/s
Union Territory of Jammu & Kashmir
Through Station House Officer (SHO),
Police Station Kralgund, District Kupwara.
... Respondent(s)
Through: -
Mr Mohsin-ul-Showkat Qadri, Sr. AAG with
Ms Maha Majeed, Assisting Counsel.
CORAM:
Hon'ble Ms Justice Sindhu Sharma, Judge
Hon'ble Mr Justice Shahzad Azeem, Judge
(JUDGMENT)
Shahzad Azeem-J:
01. Before touching the nub of the controversy, we feel it proper to
place on record that there is a report of the Registry regarding delay of 07
days in presenting the appeal. However, despite noticing that there is a
delay in filing the appeal and no application for condonation of delay is
filed, the Registry had diarized and numbered the appeal and, thus, when
the matter was listed before the Court, on 11th of February, 2025, notice was
issued in the main appeal, obviously because the main appeal was diarized
and the Registry omitted to make note that appeal is not accompanied by
CrlA (D) No. 6/2025
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the application for condonation of delay. Thus, in this way, without looking
into this aspect, the proceedings were held and finally the matter was heard
by us and, while examining the case file, this anomaly is noticed.
02. Be that as it may, since there appears to be some negligence on
the part of the dealing hand in not making proper endorsement regarding
failure to file the application for condonation of delay, therefore, for this
omission of the Registry, the Appellant cannot be made to suffer,
particularly when the delay is inconsequential. We do not wish to relegate
the Appellant back to that position when the appeal was initially filed, as
such, in the interest of justice, we hold that in view of the fact that the main
appeal is diarized, notice issued and arguments finally heard, the delay in
filing the appeal is deemed to have been condoned. We order, accordingly.
I. SUBJECT MATTER OF CHALLENGE:
03. This appeal is directed against the Order dated 31st of
December, 2024 passed by the learned Additional District and Sessions
Judge (Designated Court under NIA Act), Kupwara [hereinafter referred to
as "the Trial Court"] in an application titled 'UT of J&K through Police
Station Kralgund v. Ghulam Nabi Rather', whereby and whereunder the
application filed by the Appellant herein for grant of bail in FIR No.
20/2021 under Sections 13, 18, 19, 20, 23 and 39 of the Unlawful Activities
(Prevention) Act, 1967 [for short "the UA(P) Act"] and under Section 7/25
Indian Arms Act and 3/181 M. V. Act came to be rejected.
II. FACTS:
04. The facts relevant for proper adjudication of the appeal on
hand are noticed, thus;
CrlA (D) No. 6/2025
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05. The Appellant-Gh. Nabi Rather is charged for the commission
of offences along with co-accused under Sections 13, 18, 19, 23 and 39 of
the UA(P) Act and is facing trial for the commission of alleged offences.
06. The Appellant, along with co-accused, had been sent up for
trial on the accusation that on 12th of April, 2021, the police of Police
Station, Kralgund received a written docket to the effect that on 12 th of
April, 2021 a joint naka was laid by the J&K Police, 30 RR, 92 BN CRPF
and SOG, Kralgund at Kachloo Crossing, Kralgund, so as to keep a vigil at
the terrorist movement, however, it is alleged that during naka checking
three persons were spotted cruising on one motor-cycle coming from
Kachloo towards the National Highway, who were alleged to have made
abortive attempt to flee from the spot on noticing the presence of the naka
party, but were nabbed by the naka party. It further emerges from the record
that during the preliminary questioning of the accused, they disclosed their
identity as: (i) Showket Ahmad Ganie; (ii) Mohammad Yaseen Rather; and
(iii) Gh. Nabi Rather (Appellant herein), all residents of Kachloo.
07. During the personal search of the accused, one grenade is said
to have been recovered from the possession of Showket Ahmad Ganie; two
grenades and one cell phone were recovered from Mohammad Yaseen
Rather; and a letter-pad of banned Al-Badr militant outfit is said to have
been recovered from the possession of Gh. Nabi Rather (Appellant herein).
08. This occurrence led to registration of a formal FIR, being FIR
No. 20/2021, under Section 7/25 of the I. A. Act and Section 13 of the
UA(P) Act, whereupon investigation taken up.
09. During the course of investigation, it was found that the
accused have been working as OGWs with the commander of militant outfit
Al-Badr, namely, Abdul Gani Khawaja, and two more terrorists, namely,
Saleem Yousuf Rather and Ikhlaq Ahmad Sheikh, both residents of
Watergam, who had recently joined the outfit organization and reportedly
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were camping in Badrkali Forests with arms/ ammunition. These terrorists
were also subsequently arrested and a huge cache of arms/ ammunition
from the said forest area was recovered. Resultantly, the offences under
Section 7/25 I. A. Act and Sections 13, 16, 18, 20, 39 of the UA(P) Act
were also added.
10. On completion of investigation, it was found that Abdul Gani
Khawaja (who was later on killed in an encounter) was the conduit between
the accused as the accused had joined the banned Al-Badr militant outfit
through him, who remained active in the area of Qaziabad-Sopore and
found to have been involved in series of terrorist related activities.
Therefore, from the material collected during the course of investigation,
the Appellant herein was found to have committed the offences under the
provisions of the UA(P) Act in the manner as referred hereinbefore, hence,
challan was presented and formal charges against the Appellant, along with
co-accused, were drawn up vide Order dated 14th of June, 2022 under
Sections 13, 18, 19 and 39 of the UA(P) Act.
11. It is appropriate to point out here that in order to bring home
the charges against the accused, the Prosecution has cited as many as 25
witnesses and, by the time the digitized/ scanned record of the trial Court
was received; 22 Prosecution witnesses are found to have been recorded.
The last Order passed by the Trial Court was on 17 th of February, 2025, i.e.,
about five months before.
III. PROCEEDINGS BEFORE THE TRIAL COURT:
12. The Appellant had moved an application seeking bail before
the Trial Court and the Trial Court, vide impugned Order dated 31 st of
December, 2024, rejected the application, inter alia, on the ground that, by
now, out of listed 25 witnesses, the Prosecution remained successful in
examining 21 witnesses, therefore, there is no delay in holding the trial and,
prima facie, from the depositions of the Prosecution witnesses, involvement
CrlA (D) No. 6/2025
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of the accused has surfaced. Therefore, the Trial Court, mainly on the basis
of these observations, rejected the bail application moved by the Appellant.
IV. THE CHALLENGE:
13. The Appellant has questioned the validity of the impugned
Order, mainly, on the ground that the cognizance has been taken by the
Trial Court without looking into the validity of sanction as mandated under
the provisions of the UA(P) Act. According to the Appellant, though there
is a sanction, but same is not valid, therefore, same entitles the Appellant to
earn the acquittal.
14. The other limb of argument of the Appellant is that the
investigation was conducted by an incompetent officer, as such, the whole
trial is vitiated.
15. In addition, the learned Counsel appearing for the Appellant
vehemently argued that the Appellant is behind bars for about five years by
now and there is no remotest chance of conviction of the Appellant in view
of the evidence produced so far, as such, the Appellant is entitled to bail
and cannot be kept behind the bars as same may be in contravention to the
Article 21 of the Constitution of India.
16. Per contra, the Respondent-Union Territory has filed the
Written Response to the instant appeal and adumbrated the factual narration
which led to the registration of formal case against the Appellant, along
with other co-accused, and further went onto submit that Appellant is
involved in terrorist related activities and that there is sufficient material on
record which, prima facie, connects the Appellant with the commission of
the offences for which he is facing the trial.
17. It is further canvassed at Bar by the learned Senior Additional
Advocate General that the Appellant is an associate/ sympathizer/ OGW
having allegiance with the terrorist organizations, as he has been
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continuously found assisting the terrorists to carry out unlawful/ terrorist
related activities in Handwara/ Sopore and adjacent areas, therefore, the
Trial Court, after going through the material and evidence on record, rightly
rejected the application of the Appellant in view of the larger public
interest.
V. ANALYSIS:
18. As we have noticed hereinbefore, the formal charges against
the Appellant, along with co-accused, have been framed on 14th of June,
2022 after drawing prima facie satisfaction for commission of offences
punishable under Sections 13, 18, 19, 23 and 39 of the UA(P) Act.
19. Sections 18, 19 and 23 fall in Chapter IV of the UA(P) Act
which pertain to punishment for conspiracy; harbouring terrorists; and
enhanced penalties to aid any terrorist or a terrorist organization, etc.
Similarly, Section 39 falls in Chapter VI of the UA(P) Act and pertains to
support given to a terrorist organization. Thus, the Appellant is facing trial
for the offences majority of which fall within the ambit of Chapters IV and
VI of the UA(P) Act, thus, rigors and restrictions of sub-section (5) of
Section 43-D of the UA(P) Act would apply with full force.
20. In the above backdrop, before considering the plea for grant of
bail, the Appellant has to cross the barrier contained in Section 43-D (5) of
the UA(P) Act by satisfying that there are no reasonable grounds for
believing that the accusations against him are prima facie true.
21. Now, coming back to the grounds urged by the Appellant, be it
noted that the Appellant although raised the plea that there is invalid
sanction for launching prosecution against the Appellant, but there is no
whisper, in the memo of appeal, nor raised during the arguments, as to how
the same is invalid or did not conform to the requirements of law.
Therefore, we are unable to persuade ourselves with the wholesale assertion
of the Appellant without showing as to how same is defective.
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22. This takes us to the second limb of argument that the
investigation has been carried out by an incompetent officer. In this regard,
be it noted that the same plea came to be raised by the Appellant before the
Trial Court and the Trial Court, after holding threadbare discussion, vide
Order dated 24th of May, 2022, turned down the plea raised by way of
preliminary objection, as such, it seems that during the interregnum period,
the Appellant remained satisfied with the Order of the Trial Court, whereby
the preliminary objection regarding the holding of investigation by an
incompetent officer was rejected, hence, at this fag end of the trial, it does
not lie in the mouth of the Appellant to agitate the same, that too in the
present proceedings.
23. It is suffice to say that substantial progress has been made in
the case before the Trial Court and till the scanned record of the Trial Court
was received by this Court, as many as 22 witnesses out of 25 witnesses
were recorded and we expect that by now the Trial Court would have
recorded all the Prosecution witnesses or, in any case, must be in the
process of completion of trial. Therefore, we do not see any delay caused in
recording of witnesses by the Trial Court.
24. It is trite law that, while dealing with a bail application, the
Court is only required to record a finding on the basis of broader
probabilities regarding the involvement of the accused in the commission of
the stated offence(s) or otherwise and the Court is not required to record a
finding based on proof beyond doubt or return an opinion upon the
probative value of the evidence of the witnesses which may be in progress.
As we have taken note of the fact that out of 25 listed Prosecution
witnesses, as many as 22 Prosecution witnesses have been recorded and just
on a cursory glance, one cannot say that without proper appreciation and
weighing of evidence, any finding can be returned for or against the
Appellant, therefore, the doctrine of prima facie satisfaction regarding
involvement of the Appellant still is in force against the Appellant and that
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is all we want to record at this stage without further delving deep into the
probative value of the evidence on record.
25. As we have taken note of the fact that from the material
collected during the investigation and so also while framing the charges, a
prima facie case against the Appellant was made out which led to framing
of formal charges against him under the provisions of the UA(P) Act. It is
settled law that in order to arrive at the conclusion as to whether there is a
prima facie case, the requirement of law is that the material collected by the
Investigating Agency in reference to the accusation must prevail, until
contradicted or disproved by other evidence. Since, the Trial Court has also
taken note of the evidence recorded so far, though for the limited purpose of
deciding of the bail application, but still same holds relevance as we also do
not differ with the finding that the prima facie evidence led so far connects
the Appellant with the commission of alleged offence(s).
26. Insofar as the plea raised by the Appellant regarding the
delayed trial and resultant continuous incarceration is concerned, the law on
this point is no more res integra. In this regard, suffice it to say that once
the Appellant is prima facie shown to have been involved in such heinous
crime, the law regarding the delayed trial or violation of constitutional
rights of having speedy trial would not come to his rescue, because
enlargement on bail, in that event, would necessarily be fraught with danger
of indulgence in such activities, particularly when same is unleashed from
foreign land.
27. In 'Gurwinder Singh V. State of Punjab & Ors.', reported
as 'AIR 2024 SC 952', the Hon'ble Supreme Court, while dealing with a
case involving terrorist activities, observed thus: -
"18. The conventional idea in bail jurisprudence vis- -
vis ordinary penal offences that the discretion of Courts must
tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is
the exception' - unless circumstances justify otherwise - does
not find any place while dealing with bail applications under
CrlA (D) No. 6/2025
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UAP Act. The 'exercise' of the general power to grant bail
under the UAP Act is severely restrictive in scope. The form
of the words used in proviso to Section 43D (5)- 'shall not be
released' in contrast with the form of the words as found in
Section 437(1) CrPC - 'may be released' - suggests the
intention of the Legislature to make bail, the exception and
jail, the rule.
...
32. The Appellant’s counsel has relied upon the case of
KA Najeeb (supra) to back its contention that the appellant
has been in jail for last five years which is contrary to law laid
down in the said case. While this argument may appear
compelling at first glance, it lacks depth and substance. In KA
Najeeb’s case this court was confronted with a circumstance
wherein except the respondent-accused, other co-accused had
already undergone trial and were sentenced to imprisonment
of not exceeding eight years therefore this court’s decision to
consider bail was grounded in the anticipation of the
impending sentence that the respondent-accused might face
upon conviction and since the respondent-accused had already
served portion of the maximum imprisonment i.e., more than
five years, this court took it as a factor influencing its
assessment to grant bail. Further, in KA Najeeb’s case the trial
of the respondent-accused was severed from the other co-
accused owing to his absconding and he was traced back in
2015 and was being separately tried thereafter and the NIA
had filed a long list of witnesses that were left to be examined
with reference to the said accused therefore this court was of
the view of unlikelihood of completion of trial in near future.
However, in the present case the trial is already under way
and 22 witnesses including the protected witnesses have been
examined. As already discussed, the material available on
record indicates the involvement of the appellant in
furtherance of terrorist activities backed by members of
banned terrorist organization involving exchange of large
quantum of money through different channels which needs to
be deciphered and therefore in such a scenario if the appellant
is released on bail there is every likelihood that he will
influence the key witnesses of the case which might hamper
the process of justice. Therefore, mere delay in trial pertaining
to grave offences as one involved in the instant case cannot be
used as a ground to grant bail. Hence, the aforesaid argument
on the behalf the appellant cannot be accepted.”
28. Again, the Hon’ble Supreme Court, in ‘Union of India V.
Barakathullah etc.‘, reported as ‘2024 Supreme (Online) (SC) 7442’,
after taking into consideration law laid down in ‘National Investigation
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Agency V. Zahoor Ahmed Shah Watali‘, elaborated the guidelines on the
approach that Courts must partake-in in their application of the bail
limitations under the UA(P) Act and, in this regard, in paragraph No. 12 of
the judgment observed thus:-
“12. The ratio of the said judgment has been
consistently followed by this Court in many cases, and
recently in Gurwinder Singh v. State of Punjab and Another
(supra), in which this court has culled out following
guidelines from Watali‘s Case.
34. In the previous section, based on a textual reading,
we have discussed the broad inquiry which Courts seized of
bail applications under Section 43D(5) UAP Act r/w Section
439 CrPC must indulge in. Setting out the framework of the
law seems rather easy, yet the application of it, presents its
own complexities. For greater clarity in the application of the
test set out above, it would be helpful to seek guidance from
binding precedents. In this regard, we need to look no further
than Watali‘s case which has laid down elaborate guidelines
on the approach that Courts must partake in, in their
application of the bail limitations under the UAP Act. On a
perusal of paragraphs 23 to 29 and 32, the following 8-point
propositions emerge and they are summarised as follows:
• Meaning of ‘Prima facie true’ [para 23] : On the face of it,
the materials must show the complicity of the accused in
commission of the offence. The materials/evidence must be
good and sufficient to establish a given fact or chain of facts
constituting the stated offence, unless rebutted or contradicted
by other evidence.
• Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet
and Post-Charges – Compared [para 23] : Once charges are
framed, it would be safe to assume that a very strong
suspicion was founded upon the materials before the Court,
which prompted the Court to form a presumptive opinion as
to the existence of the factual ingredients constituting the
offence alleged against the accused, to justify the framing of
charge. In that situation, the accused may have to undertake
an arduous task to satisfy the Court that despite the framing of
charge, the materials presented along with the chargesheet
(report under Section 173 CrPC), do not make out reasonable
grounds for believing that the accusation against him is prima
facie true.
Similar opinion is required to be formed by the Court whilst
considering prayer for bail, made after filing of the first report
made under Section 173 of the Code, as in the present case.
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• Reasoning, necessary but no detailed evaluation of evidence
[para 24] : The exercise to be undertaken by the Court at this
stage-of giving reasons for grant or non-grant of bail-is
markedly different from discussing merits or demerits of the
evidence. The elaborate examination or dissection of the
evidence is not required to be done at this stage.
• Record a finding on broad probabilities, not based on proof
beyond doubt [para 24]:”The Court is merely expected to
record a finding on the basis of broad probabilities regarding
the involvement of the accused in the commission of the
stated offence or otherwise.”
• Duration of the limitation under Section 43D(5) [para 26]
:The special provision, Section 43-D of the 1967 Act, applies
right from the stage of registration of FIR for the offences
under Chapters IV and VI of the 1967 Act until the conclusion
of the trial thereof.
• Material on record must be analysed as a ‘whole’; no
piecemeal analysis [para 27]: The totality of the material
gathered by the investigating agency and presented along with
the report and including the case diary, is required to be
reckoned and not by analyzing individual pieces of evidence
or circumstance.
• Contents of documents to be presumed as true [para 27]
:The Court must look at the contents of the document and take
such document into account as it is.
• Admissibility of documents relied upon by Prosecution
cannot be questioned [para 27]: The materials/ evidence
collected by the investigation agency in support of the
accusation against the accused in the first information report
must prevail until contradicted and overcome or disproved by
other evidence……. In any case, the question of discarding the
document at this stage, on the ground of being inadmissible in
evidence, is not permissible.”
29. From the law laid down by the Hon’ble Supreme Court, it is
made clear that the often-quoted phrase-“bail is the rule, jail is exception”
does not find any place while dealing with a bail under the UA(P) Act, in
that, the exercise of discretion while dealing with grant of bail under the
UA(P) Act is severely restrictive in scope in terms of the proviso to Section
43-D (5). Therefore, the contention of the learned Counsel for the Appellant
CrlA (D) No. 6/2025Page 12 of 13
that the Appellant is behind the bars for considerable time does not hold
good in view of the authoritative pronouncements of the Hon’ble Supreme
Court.
30. The learned Counsel for the Appellant laid much reliance on
the verdict of the Hon’ble Supreme Court in “Tapas Kumar Palit v. State
of Chhattisgarh”, passed in Criminal Appeal No. 738 of 2025 arising out
of SLP (Criminal) No. 15971 of 2024 to buttress his arguments that the
Appellant is also behind bars for about five years, thus, is entitled to the
concession of bail.
31. In our opinion, the Judgment relied upon by the Counsel for
the Appellant is of no help, in that, the Hon’ble Supreme Court, while
dealing with the case, specifically observed that out of 100 witnesses only
42 witnesses have been examined, therefore, while looking into the large
number of witnesses which are yet to be examined, the bail was granted. To
the contrary, however, in the case on hand, as we have observed that by
now the Trial Court remained successful in examining as many as 22
witnesses out of listed 25 witnesses, as such, the case relied upon by the
Appellant is distinguishable and is of no help to the Appellant.
32. In view of the law governing the subject and material collected
during investigation, coupled with the evidence of the material recorded so
far, we are satisfied that there is prima facie material on record indicating
the complicity of the Appellant in carrying out the alleged terrorist activities
so as to bring unrest within the country, therefore, at this stage, indulgence
is unwarranted.VI. RELIEF:
33. For the aforementioned reasons, the bail plea of the Appellant
is rejected and, consequently, the present appeal is dismissed. We,
however, make it clear that the observations made in this Judgment are
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limited to the adjudication of the present appeal and shall not prejudice the
merits of the case during trial.
34. Let a copy of this Judgment be forwarded to Registrar
Judicial, Srinagar for information, so as to take corrective measures as
indicated while dealing with the point of limitation.
(Shahzad Azeem) (Sindhu Sharma)
Judge Judge
SRINAGAR
August 13th, 2025
"TAHIR"
i. Whether the Judgment is approved for reporting? Yes/ No.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document