Jammu & Kashmir High Court – Srinagar Bench
Union Territory Of J & K Through vs Ameer Hamza Shah S/O Gh. Mohi Ud Din Shah on 18 July, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Page 1 of 10
IN THEHIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 15.07.2025
Pronounced on: .07.2025
CrlA(D) No. 06/2022
CrlM 71/2022
Union Territory of J & K Through
Police Station Bandipora
...Appellant(s)
Through: Ms. Maha Majeed, Assisting Counsel vice
Mr. Faheem Shah, GA.
Vs.
1. Ameer Hamza Shah S/O Gh. Mohi Ud Din Shah
R/O Qull Muqam Bandipora.
2. Rayees Ahmad Mir S/O Mohammad Maqbool Mir
R/O Kehnusa Bandipon
...Respondent(s)
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Sanjay-Parihar-(J)
1. The appellant-UT of J&K is aggrieved of the order of discharge drawn
by the Court of Additional Sessions Judge (Special Judge) for trial of
offences under ULA(P) Act for Districts of Baramulla, Bandipora, and
Kupwara, in terms whereof, respondents, who were facing prosecution
for offences under Section 13 ULA(P) Act in FIR No. 41/2015 of
Police Station Bandipora stood discharged by the trial judge.
2. That impugned order is against law, as the trial court has resorted to
conducting enquiry at charge stage and sifted the evidence as if it was
finally deciding the challan. The court has discharged the accused
without properly examining the contents of the charge and material
CrLA(D) No. 06/2022
Page 2 of 10
collected thereto. The discharge of the respondents has resulted in
grave miscarriage of justice, and by way of an erroneous order,
respondents have been discharged. The court was required to evaluate
the material placed before it only for the purpose of charge/discharge
but not to sift the evidence in its totality.
3. This appeal has been laid in terms of Section 21 of the NIA Act, for
which no leave was required because the order was otherwise
appealable in terms of Section 21, however, the delay in filing the
appeal stood condoned.
4. We have heard the appellants, whereas respondents, despite service,
have chosen not to appear and argue the matter. So much so, on
previous date of hearing also, the respondents were absent. Today
again, when the matter was called, none appeared on behalf of the
Respondents.
5. We have examined the record of the trial court as well.
6. On the strength of case FIR No. 41/2015, respondents were accused of
an incident that took place on 20th March 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
aforesaid case was registered and investigation set in motion.
7. 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
CrLA(D) No. 06/2022
Page 3 of 10
and subsequently released on bail. Whereas, after investigation, case
was closed as challan and sent for sanction, that was received from the
competent authority directing production of charge sheet against the
respondents, who by that time had turned absconder.
8. Subsequently, on filing of the charge sheet, they were proceeded under
Section 512 Cr.P.C, which was in vogue at that time. Initially, the
charge sheet was laid before Special Judge, NIA at Srinagar, but with
the creation of Special Court at Baramulla for trial of ULA(P) cases for
Districts of Baramulla, Bandipora and Kupwara, in terms of
Notification dated 1st March 2020, the case was sent to the designated
Court at Baramulla.
9. Subsequently, both respondents were arrested following the execution
of warrants, and the matter was finally heard at the stage of
charge/discharge.
10. Vide order dated 29th September 2021, 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.
11. The trial court, therefore, was of the view that offence under Section
13 ULA(P) Act was not made out. It appears that the trial court had
placed reliance on a judgment passed by the Apex Court in case titled
as “Balwant Singh & Ors v. State of Punjab” reported as 1995 (3)
SCC 214, wherein Sections 124-A and 153-A of the Penal Code were
CrLA(D) No. 06/2022
Page 4 of 10
under consideration, and, it was held that the two offences were not
made out because raising of anti-national slogans did not incite any
violence or cause harm to the public at large or bring enmity between
different religions or classes.
12. The appellant’s main argument is 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.
13. Unlawful activity in terms of the Act of 1967 is defined in clause (o) of
Section 2, which for convenience is reproduced hereunder:
“o) “unlawful activity”, in relation to an individual or
association, means any action taken by such
individual or association (whether by committing an
act or by words, either spoken or written, or by signs
or by visible representation or otherwise),–
(i) which is intended, or supports any claim, to bring
about, on any ground whatsoever, the cession of a
part of the territory of India 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; or
(ii) which disclaims, questions, disrupts or is intended
to disrupt the sovereignty and territorial integrity of
India; or (iii) which causes or is intended to cause
disaffection against India;.
CrLA(D) No. 06/2022
Page 5 of 10
14. Respondents were not related to any unlawful association or banned
organization, and that was also not the case of the appellant before the
trial court, however, they were acting in individual capacity and had
raised anti-national slogans.
15. HC Ghulam Rasool, HC Gulzar Ahmed, HC Mohammad Saifi,
Selection Grade HC Abdul Jabbar, and HC Ijaz Ahmed were on duty
on 20th March 2015 in Bandipora market when they found the
respondents, who were stated to be working for separatist organization,
appeared in front of Masjid after Friday prayers where a large number
of people had gathered to hear them. There, the respondents are
accused of having called for separation of Jammu and Kashmir from
rest of India because they claimed that Jammu and Kashmir has been
illegally occupied and for its separation, they were inciting the general
public to initiate struggle for achieving the objective of separating
Jammu and Kashmir from the Indian Dominion.
16. Whereas, 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.
17. Before evaluating the validity of the discharge order, impugned herein,
it is desirable to note the principles that are to be followed by trial
judges while considering the charge sheet at the stage of
charge/discharge.
18. In “Union of India v. Prafulla Kumar Samal and Another“, AIR
1979 (3) SCC 4, the Hon’ble Supreme Court, summarised the
CrLA(D) No. 06/2022
Page 6 of 10
principles governing framing of charge under Section 227 CrPC as
follows:
“10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge:
(1) The Judge while considering the question of
framing the charges under Section 227 of the Code
has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the accused
has been made out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which has
not been properly explained, the Court will be fully
justified in framing a charge and proceeding with the
trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large, however, if two views are equally possible
and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully
within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227
of the Code, the Judge which under the present Code
is a senior and experienced court cannot act merely as
a post office or a mouthpiece of the prosecution, but
has to consider the broad probabilities of the case, the
total effect of the evidence and the documents
produced before the Court, any basic infirmities
appearing in the case and so on. This however does
not mean that the Judge should make a roving enquiryCrLA(D) No. 06/2022
Page 7 of 10into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.”
19. The Apex Court in the aforesaid judgment had followed the principles
laid down in “State of Bihar v. Ramesh Singh“, AIR 1977 (4) SCC
39. In both cases, 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.
20. 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.
21. However, where there are two possible views, one giving rise to mere
suspicion and the other to a grave suspicion, the trial judge would be
justified in refusing discharge if satisfied that strong suspicion exists. It
was further reiterated that the court must, without making a roving
enquiry into the pros and cons, consider the broad probabilities of
prosecution case and the material before it. The probative value of the
material so placed cannot be assessed at that stage. What is required is
the existence of some essential material giving rise to strong suspicion
necessary for drawing a charge and refusing discharge.
CrLA(D) No. 06/2022
Page 8 of 10
22. In view of the aforesaid principles, we proceed to examine the case of
the prosecution as projected before the trial court. A reading of the
charge sheet would show that the respondents were found inciting
general public that had gathered after Friday prayers on 20 th 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.
23. 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.
24. Section 13 specifically states that whoever takes part in, incites,
advocates, or abets unlawful activity shall be punishable with
imprisonment which may extend to seven years and shall also be liable
to fine. Such accusations against the respondents squarely fall within
the ambit of Section 13(1), because, as per the statements recorded
under Section 161 CrPC, they were advocating and inciting the
commission of an unlawful activity by asserting that J&K is illegally
occupied and must be separated from the Indian Union, thereby
advocating secession.
25. The trial court was of the view that since the respondents were merely
raising slogans with no activity of inciting violence, Section 13 was
CrLA(D) No. 06/2022
Page 9 of 10
not applicable. This view was palpably wrong, because what Section
13(1), read with Section 2(1)(o) of the UAPA, relates to is the
commission of an unlawful activity, and the allegations raised against
the respondents were squarely covered within the definition of
“unlawful activity. The trial court appears to have not appreciated the
version of the witnesses under Section 161 CrPC, who were present at
the spot when the occurrence is stated to have happened.
26. Reliance by a trial Court on “Balwant Singh and Another vs State of
Punjab“, (1995) 3 SCC 214 was uncalled for because in that case the
accused had raised slogans in a crowded place after the assassination
of the then Prime Minister. It was alleged that the raising of slogans
had attracted Section 124-A and 153-A IPC. The former related to the
bringing or attempting to bring hatred and disaffection towards the
Government established by law. The latter related to the offence of
promoting enmity on grounds of religion or race. The facts in that case
were clearly distinguishable from those before the Trial Court. There is
a clear distinction between the essentials of Section 124-A, 153-A IPC,
and the term “unlawful activity” as defined in Act of 1967, as amended
from time to time. Inasmuch as the facts supra was based upon a
matter that had come before the Hon’ble Apex Court by way of appeal,
where the accused had already been convicted but in the present case
the matter was still at infancy and the prosecution was yet to adduce
evidence in support of the accusations raised under Section 13 of the
Act. Therefore, there is no parallel to case in hand and the facts of the
Balwant Singh supra.
CrLA(D) No. 06/2022
Page 10 of 10
27. For the aforesaid reasons, we find that the impugned order is not
sustainable on any count as it suffers from non-application of mind and
erroneous application of law, thus, on the face of it, is perverse and is,
therefore, set aside.
28. The chargesheet shall stand restored with the direction to the trial court
to proceed with framing of charge against the respondents for offence
under Section 13 of ULA(P) Act, and thereafter proceed to dispose of
the challan in accordance with law.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
.07.2025
"Hilal"
Whether the Judgment is approved for reporting? Yes
CrLA(D) No. 06/2022
[ad_1]
Source link