In a major development with far reaching consequences, we see very clearly that the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Shabir Ahmed Shah vs National Investigation Agency in CRL.A. 600/2023 and cited in Neutral Citation No.: 2025:DHC:4966-DB that was reserved on 28.05.2025 and then finally pronounced most recently on 12.06.2025 has dismissed an appeal that had been filed by eminent Kashmiri separatist leader Shabir Ahmad Shah challenging the order that had been passed by a National Investigation Agency (NIA) Special Court rejecting his bail plea.

It was made indubitably clear by the Delhi High Court that the freedom of speech cannot be misused to deliver inflammatory speeches contrary to the interests and integrity of the country. It thus merits no reiteration that this latest verdict must definitely be always kept in mind by each and every citizen of India and one should think thousands of times always before delivering any inflammatory speeches which is in one’s own best interest to be avoided and so also save oneself from unnecessarily landing up in deep trouble by not ever playing to the gallery.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Shalinder Kaur for a Division Bench of the Delhi High Court comprising of herself and Hon’ble Mr Justice Navin Chawla sets the ball in motion by first and foremost putting forth in para 1 that:
The present Criminal Appeal has been filed by the Appellant under Section 21 of the National Investigation Agency (‘NIA’) Act, 2008 to assail the Order dated 07.07.2023 passed by the learned Additional Session Judge – 03 (New Delhi), Patiala House Courts, New Delhi (hereinafter referred to as, ‘Trial Cour’) in NIA case bearing RC No. 10/2017/NIA/DLI titled NIA v. Hafiz Saeed & Ors., whereby the Bail application of the Appellant was dismissed.

To put things in perspective, the Division Bench envisages in para 2 stating that:
The present case emanates from the registration of the NIA case bearing no. RC-10/2017/NIA/DLI for offences under Sections 120B, 121 and 121A of the Indian Penal Code, 1860 (IPC), and Sections 13, 16, 17, 18, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 [UA(P) Act], by the NIA, pursuant to the Order No. 11011/2017-IS-IV issued by the Ministry of Home Affairs on 30.05.2017.

The Prosecution’s case is premised on an alleged Conspiracy hatched among several accused persons who were purportedly engaged in secessionist activities in the erstwhile State of Jammu and Kashmir (‘J&K’) through various terrorist activities, such as organization of violent protests, instigating the general public to commit violence, pelting of stones at the Security Forces, burning of Schools, damaging public property, etc and waging war against the Union of India. Their ultimate aim and objective was to seek the secession of the J&K from the Union of India, all in the garb of ‘Freedom’.

Succinctly stated, the Division Bench points out in para 8 that:
The gist of allegations against the Appellant, as per the Prosecution, is that he has played a substantial role in facilitating a separatist/militant movement in the J&K by inciting and instigating the general public to chant slogans in support of the secession of the J&K, paying tribute to the family of slain terrorists/militants by eulogizing them as ‘martyrs’, receiving money through hawala transactions and raising funds through the LoC trade, which were allegedly used to fuel subversive and militant activities in the J&K.

Most significantly and so also most forthrightly, the Division Bench encapsulates in para 62 what constitutes the cornerstone of this notable judgment postulating that:
No doubt, the Constitution of India provides for a right to freedom of speech and expression, however, the same also places reasonable restrictions such as public order, decency, morality or incitement to an offence, etc. This right cannot be misused under the garb of carrying out rallies wherein, a person uses inflammatory speeches or instigates the public to commit unlawful activities, detrimental to the interest and integrity of the country.

Do note, the Division Bench notes in para 69 that:
Suffice it is to say, the Prosecution, through the evidence collected by it, has been able to prima facie establish the involvement of the Appellant with Accused no. 10 as well as other co-accused persons in the Conspiracy. Needless to state, in cases of Conspiracy, it is the evidence that gradually unfolds and unravels the entire scheme. The Prosecution has also adduced the CDR analysis, which indicates the connectivity of the Appellant with Mohd. Shafi Shair.

Do also note, the Division Bench then notes in para 72 that:
It is not denied that the Appellant is in custody in connection with these FIRs. During the course of the proceedings, queries were put to the learned Senior Counsels for the parties on whether the Appellant has applied for Bail in these FIRs, and if so, the result thereof. The counsels, however, could not give a clear and satisfactory response as to whether any Bail applications had been filed on behalf of the Appellant in these 24 FIRs. Nonetheless, the fact remains that the Appellant continues to remain in custody. What is evident is that the Appellant has multiple FIRs registered against him involving grave offences, and what remains a mystery is, if a Bail application had been filed, the result thereof, and if not, then why?

Briefly put, the Division Bench observes in para 74 that:
What emerges from the table above is that the Appellant is involved in a number of criminal cases of a similar nature, all of which relate to the conspiring for the secession of the J&K from the Union Territory of India. These cases reflect extensive preparations and coordinated action undertaken in furtherance of that objective.

Do further note, the Division Bench notes in para 75 that:
It is also pertinent to note that the JKDFP, of which the Appellant is the Chairman, has been declared as an Unlawful Association by the UA(P) Tribunal. The learned Senior Counsel for the Appellant had submitted that, at the time when the Appellant has been alleged to have indulged in various activities being the Chairperson of his Organization, that is, JKDFP was not declared an Unlawful Organization. Therefore, it was contended that the Appellant was not involved in any illegal activity. We do not find any merit in the said plea raised on behalf of the Appellant. In case the Appellant was involved in unlawful activities, the same cannot be termed as lawful merely because the organization he was heading was at the time, not declared an unlawful association.

Be it noted, the Division Bench notes in para 76 that:
Furthermore, while it is submitted that the Appellant by virtue of being the Chairman of the organization, he had met several prominent political leaders, perhaps in pursuit of a peaceful resolution for Kashmir, this fact, in itself, does not assist the Appellant’s case. Additionally, the fact that the videos relied upon by the Prosecution are 25 years old does not absolve the Appellant of the alleged offences committed at the relevant time. Needless to say, these videos and the alleged acts depicted therein came to light only when the investigation in the present case was initiated.

It is worth noting that the Division Bench notes in para 80 that:
The consideration that arose in K.A. Najeeb (supra) before the Supreme Court, amongst other factors, was that the co-accused therein was held guilty by the learned Trial Court and was accordingly, sentenced to eight years of imprisonment. The Appellant therein had been in custody for nearly five years and thus, he was enlarged on Bail. One of the co-accused in the present case, that is, Yasin Malik, has been sentenced to life imprisonment by the learned Trial Court upon his pleading guilty.

It would be instructive to note that the Division Bench notes in para 82 that, In view of the overwhelming evidence, it is premature to evaluate the veracity of the material available on record at this stage. However, it cannot be brushed aside or said to fall short of proof in any manner, such assessment shall be considered by the learned Trial Court at an appropriate stage of the trial.

It also cannot be lost sight of that the Division Bench points out in para 83 that:
Also, the Appellant’s involvement in a number of cases of a similar nature, thus, the possibility cannot be ruled out that being a Chairman of the unlawful organization JKDPF, he would not indulge in similar unlawful activities and may attempt to tamper with evidence as well as influence witnesses who are yet to be examined.

Doubtless, the Division Bench very rightly underscores in para 84 holding that, It is well-settled law that at the stage of Bail the court is concerned with the existence of the material against the accused and not as to whether those materials are credible or not. Therefore, considering the entire gamut of facts and circumstances, the present case is not a fit case to extend the benefit of the grant of Bail to the Appellant. Consequently, there is no question of entertaining the alternative prayer made by the Appellant seeking House Arrest, in view of the serious allegations against the Appellant as well as the sensitivity and gravity of the issues involved.

Notably, the Division Bench points out in para 85 that:
Needless to state, the Charges have been framed by the learned Trial Court, and for the purpose of adjudicating the plea of Regular Bail, there are reasonable grounds to believe that the accusations against the Appellant appear prima facie to be true. The Appellant has not been able to discharge the burden upon him in order to secure Bail.

As a corollary, the Division Bench holds in para 86 that:
Accordingly, in view of the foregoing discussion, the present Appeal is dismissed.

For clarity, the Division Bench clarifies in para 87 holding that:
It is made clear that the observations made hereinabove shall not tantamount to be an expression on the merits of the Appellant’s case pending before the learned Trial Court or to be read as an expression of opinion on the merits of the pending Appeal on Charge before this Court, These observations are confined to the consideration of the prayer for Bail alone.

CRL.M.A. 875/2025

Truth be told, the Division Bench specifies in para 88 specifying that:
This is an application under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) filed on behalf of the Appellant, seeking a copy of his Medical Record.

In addition, the Division Bench then also further specifies in para 89 stating that:
Vide Order dated 27.01.2025, The medical record of the Appellant from the Office of the Senior Medical Officer, Central Jail, Tihar, New Delhi, was placed on record, and a copy of the same was furnished to the learned Senior Counsel for the Appellant.

Resultantly and finally, the Division Bench then concludes by aptly holding in para 90 that:
In view of the above, the application stands dismissed as being infructuous.

All told, this latest ruling by the Delhi High Court is definitely a very big setback for Shabir Ahmed Shah who was expecting bail but all doors are still not closed for him. He still has the option to approach the Supreme Court! Until he resorts to that final option, we have to wait and watch keeping our both fingers crossed and see which side the dice finally rolls! His senior lawyer Colin Gonsalves who is himself a senior and so also a very eminent Supreme Court lawyer will definitely go whole hog in ensuring that his client gets bail in this leading case ultimately in the Supreme Court after facing a huge setback from a Division Bench of the Delhi High Court as has been discussed herein aforesaid! There can be definitely just no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh