Excelsior Correspondent
Srinagar, July 22 : High Court (HC) has held that sloganeering against the sovereignty of country also comes under the purview of Unlawful Activities Act and set aside the order of Trial Court discharging the accused person from commission of such offences with the direction to Trial Court to frame charges against the accused under ULA(P) Act.
The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar set aside the order of Trial Court discharging the accused persons who were facing prosecution for offences under ULA(P) Act in FIR registered in Police Station Bandipora way back in the year 2015 with the direction to restore the challan afresh for framing charges against the accused under ULA(P) Act.
On the strength of case FIR No. 41/2015, the two persons- Ameer Hamza Shah of Qull Muqam Bandipora and Rayees Ahmad Mir of Kehnusa Bandipora were accused of an incident that took place on 20th March 2015, when after Friday prayers they delivered anti-national speech to general public against sovereignty of India and to call for separation of the then State of Jammu and Kashmir from rest of the India.
During the course of investigation, they were challaned for offence under ULA(P) Act, as there was substantial evidence against them, for which they were arrested and subsequently released on bail.
The Trial Court on September 29, 2021 dismissed the chargesheet by holding that, except raising of anti-national slogans, the respondent-accused did not act in any manner prejudicial to the integrity of the country.
The Division Bench set aside the discharge order by recording that the same 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 respondent-accused has resulted in grave miscarriage of justice, and by way of an erroneous order, respondents have been discharged”, the DB said.
The Court after perusal of the chargesheet said the accused were found inciting general public that had gathered after Friday prayers at Bandipora market to take up a struggle in order to effect secession of Jammu & Kashmir from the Union of India and 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.
These accusations, coupled with the Statements made by witnesses prima facie bring the allegations within the ambit of “unlawful activity” because the accused were calling for and inciting a struggle for cession of J&K from the Union of India an activity punishable under ULA (P) Act as 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.
The Trial Court was of the view that since the respondent-accused were merely raising slogans with no activity of inciting violence. This view, the Bench said, was palpably wrong, because what 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.
“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. The charge sheet shall be restored with the direction to the Trial Court to proceed with framing of charge against the respondents for offence under ULA(P) Act, and thereafter proceed to dispose off the challan in accordance with law”, the Court concluded.
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