It is quite material to note that while taking a pragmatic, progressive and patriotic stand, the Jammu and Kashmir and Ladakh High Court at Srinagar in a most learned, laudable, landmark, logical and latest judgment titled Union Territory of J & K vs Ameer Hamza Shah in CrlA(D) No. 06/2022 CrlM 71/2022 that was reserved on 15.7.2025 and pronounced recently has minced absolutely just no words to hold in no uncertain terms that calling for secession of Jammu and Kashmir by labelling it as an ‘occupied territory’ falls within the ambit of ‘unlawful activity’ under the Unlawful Activities (Prevention) Act, 1967. It must be noted that the J&K&L High Court was considering an appeal that had been filed against the order of discharge that had been drawn by the Court of Additional Sessions Judge (Special Judge) for trial of offences under Section 13 ULA(P) Act. The appeal was thus allowed by the Srinagar High Court. Very rightly so!
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice Sanjay Parihar for a Division Bench of the Jammu and Kashmir and Ladakh High Court at Srinagar comprising of Hon’ble Mr Justice Sanjeev Kumar and himself sets the ball in motion by first and foremost putting forth in para 1 that:
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.”
To put things in perspective, the Division Bench then envisages in para 2 stating precisely that:
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 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.”
As we see, the Division Bench then specifies in para 3 disclosing that:
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.”
As things stands, the Division Bench then reveals in para 4 that:
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.”
Do note, the Division Bench notes in para 6 that:
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.”
Simply put, the Division Bench then unfolds in para 7 stating that:
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 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.”
Further, the Division Bench then reveals in para 8 that:
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.”
Furthermore, the Division Bench then discloses in para 9 mentioning that, “Subsequently, both respondents were arrested following the execution of warrants, and the matter was finally heard at the stage of charge/discharge.”
As it turned out, the Division Bench enunciates in para 10 stating that:
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.”
Frankly speaking, the Division Bench opines in para 11 mentioning that:
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 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.”
Do further note, the Division Bench then notes in para 13 that:
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),--
- 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
- which 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;.
While referring to the Apex Court ruling in “Union of India v. Prafulla Kumar Samal and Another”, AIR 1979 (3) SCC 4, the Division Bench observes in para 19 that:
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.”
Be it noted, the Division Bench notes in para 22 that:
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 20th 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.”
Most significantly, the Division Bench encapsulates in para 23 what constitutes the cornerstone of this notable judgment postulating precisely that:
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.”
Equally significant is that the Division Bench then further propounds in para 24 holding succinctly that:
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.”
Most forthrightly, the Division Bench opines in para 25 holding that:
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. 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.”
Most rationally, the Division Bench puts across its viewpoint in para 26 underscoring that:
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.”
As a corollary, the Division Bench then deems it fit to hold in para 27 that, “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.”
Finally, the Division Bench then concludes by directing and holding aptly in para 28 that:
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.”
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut-250001, Uttar Pradesh
