Srinagar, Sept 9 : The High Court of Jammu and Kashmir and Ladakh has set aside the discharge of an accused in a UAPA case stating that secessionist sloganeering in a mob in the presence of the head of a banned separatist organisation prima facie falls under the definition of unlawful activity.
A division bench headed by acting Chief Justice Sanjeev Kumar set aside the discharge of Mohammad Yousuf Lone in a 2013 UAPA case by the Additional District and Sessions Judge (Designated Special Court under NIA Act) Kupwara.
"The sloganeering for secession, raised by an accused leading a mob in the company of the head of a proscribed separatist organisation, coupled with incitement of the public and violence against security forces, is capable, on a prima facie appreciation, of falling squarely within this definition," the bench observed in its order.
According to the case, a mob headed by Mohammad Yousuf Lone and Late Syed Ali Shah Geelani, chairman of the banned Hurriyat Conference, came out of Jamia Masjid in Kupwara on November 8, 2013, raised anti-national slogans against the Government of India, and pelted stones at police and security forces.
The separatist leaders also allegedly instigated the general public against the sovereignty and territorial integrity of the Union of India, according to the chargesheet.
"The trial court has recorded, in a single sentence in paragraph 6 of the order impugned, that the facts 'do not fulfil the ingredients of Sections 2(o) of ULA(P) Act' without setting out the reasoning by which the specific statements or conduct attributed to the respondent in the chargesheet were tested against the statutory definition. This amounts to a bare conclusion rather than a reasoned finding," the high court said.
It said the material with chargesheet -- including the recorded slogans, the leadership role attributed to the respondent, and the resultant violence -- discloses a strong suspicion sufficient to put the respondent on trial, leaving the question of whether the charges are ultimately proved to be examined at trial and not foreclosed at the threshold.
"It is trite that an order of discharge must reflect application of judicial mind to the material on record, and that the findings at the charge stage, though summary, cannot be conclusory. However, it is abundantly clear from perusal of the order impugned that the same does not indicate that the specific contents of the chargesheet, the statements of the witnesses to the procession, the site plan, and the material, alleged to link the respondent to the incitement and the resultant violence, were tested against the ingredients of Section 13 read with Section 2(o) of the UAPA before the conclusion of non-applicability was recorded. On this ground, the order impugned is unsustainable and calls for interference," it added.
The court said it is neither making any definitive finding on the guilt or innocence of the respondent, nor expressing any opinion on the ultimate merits of the case.
"However, when specific material is brought on record that, on the face of it, discloses the commission of an offence and the complicity of the respondent, the trial court cannot act as a mute spectator and shut the doors of trial without assigning valid legal reasons," it added.
Allowing the criminal appeal filed by the state, the high court directed that the chargesheet be restored and the trial court proceed with the framing of charge against the respondent afresh after considering the material placed on record by the appellant.
