SRINAGAR: The High Court of Jammu & Kashmir and Ladakh at Srinagar has set aside the discharge of two men accused of inciting secessionist sentiments in Bandipora in 2015. The Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar held that the trial court had committed a grave error in law by prematurely assessing the evidence at the charge stage.
The case relates to an incident on 20 March 2015, when, following Friday prayers at a mosque in Bandipora, Ameer Hamza Shah and Rayees Ahmad Mir allegedly addressed a public gathering, delivering speeches that, according to the police, sought to provoke the public against the sovereignty of India and called for the separation of Jammu and Kashmir from the Union.
Both men were subsequently booked under Section 13 of the UAPA for alleged “unlawful activity” but were discharged by the Additional Sessions Judge (Special Judge, UAPA) Baramulla, who concluded that, in the absence of any resultant violence or law-and-order disturbance, merely raising anti-national slogans did not constitute an offence under the Act.
The Union Territory of J&K, through Police Station Bandipora, challenged the discharge under Section 21 of the NIA Act. The High Court, after hearing the matter and examining the trial record, found the trial court’s reasoning flawed and its reliance on the Supreme Court’s decision in Balwant Singh v. State of Punjab (1995) 3 SCC 214 to be misplaced.
The Bench observed, “The trial court was of the view that since the respondents were merely raising slogans with no activity of inciting violence, Section 13 was 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’.”
According to the prosecution, statements recorded under Section 161 CrPC by several police personnel, including Head Constables Ghulam Rasool, Gulzar Ahmed, Mohammad Saifi, Abdul Jabbar, and Ijaz Ahmed, clearly established that the respondents exhorted the crowd to begin a struggle for “separating Jammu and Kashmir from Indian dominion.” The Court found these accounts sufficient to attract the definition of “unlawful activity” under Section 2(1)(o) of the UAPA.
Quoting the statutory language, the judges noted. “Unlawful activity’ means any action (by act or words, spoken or written, or by signs or visible representation or otherwise) intended to bring about or support any claim for cession or secession of a part of Indian territory from the Union, or which incites such acts.”
The Court reiterated the legal standard that at the stage of charge, a judge must only assess whether there exists a prima facie case or “grave suspicion,” not conclusively determine guilt. Referring to the landmark Supreme Court decision in Union of India v. Prafulla Kumar Samal, the judgment emphasised that a judge may sift evidence, but only to determine whether a trial is warranted, not to weigh the evidence as if deciding the case itself.
The High Court was categorical that the trial court had overstepped its jurisdiction.
“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.”
Consequently, the Court restored the charge sheet and directed the trial court to proceed with framing charges under Section 13 of the UAPA and to dispose of the matter in accordance with law.
The decision underscores the judiciary’s expectation that trial courts adhere strictly to procedural thresholds, particularly in sensitive cases implicating national security and public order. While the case is yet to proceed to full trial, the High Court’s decision makes it clear that allegations of advocating secession, even absent violence, can constitute unlawful activity under the UAPA if supported by prima facie material.
