jammu and kashmir and ladakh high court

Jammu and Kashmir and Ladakh High Court: While considering the instant appeal, the division bench of Atul Sreedharan* and Mohal Lal, JJ., had to examine two questions of law.

  • Whether, section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967, where despite the existence of a prima facie case against the accused, the absence of a “Need to Arrest” would result in violation of the right to life of the accused under Article 21 of the Constitution and if it does, whether the Court can still grant bail on account of the violation of Article 21 even though a prima facie case is made out against the accused?

  • Whether, the concept of “Clear and Present Danger” ought to be taken into account by the Courts while deciding a bail application where the bar under Section 43D(5) of UAPA is applicable?

It was held that the investigating agency, in a case under the UAPA, has the unbridled authority to arrest or not to arrest; however, upon arrest, the investigating agency would have to justify the arrest on the anvil of “clear and present danger” of the accused to the society at large, if enlarged on bail. The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society. If the investigating agency does not satisfy the Court and is unable to justify the arrest the same would result in the violation of the rights of the accused under Part III of the Constitution as outlined in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, and the accused may be enlarged on bail.

To assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case.

Background: A source information received on 04-04-2022, led to the discovery of an article titled “The shackles of slavery will breakwritten by appellant-1 on 06-11-2011, and published on a webpage on the domain of the appellant “thekashmirwalla.com”. It was alleged that the appellant is a part of an ongoing operation to build and propagate the false narrative in order to sustain the secessionist-cum-terrorist campaign. It was further the case of the respondent that select anti India elements within the media, have formed digital platforms which are inexpensive and have a wide reach, and are working to construct a false and distorted account of the events in Kashmir and demonising the Government of India.

Pursuant to the recovery of the afore-stated article, FIR was registered against the appellant under Sections 13 and 18 of the UAPA, and under Sections 120-B, 121, 123, 153-B of the Penal Code, 1860. The appellant was arrested on 20-05-2022 by P.S. Pulwama in which he was granted bail by the TADA/POTA Court at Srinagar. However, the police, without releasing the appellant, shifted his custody to P.S. Shopian in connection to another FIR. The appellant was granted by the Court of the Munsiff, Shopian. However, the appellant was still not released, and his custody was shifted to Safa Kadal in another case registered at that police station. The appellant was taken into preventive detention under the provisions of the Jammu and Kashmir Public Safety Act, 1978.

Contentions: It was contended by the respondent that even though the appellant’s role had been limited to uploading the offending article on his domain, but his intention and thought process was extremely insidious which he shared in common with the secessionists, whose cause he espoused. It was mainly contended by the respondent that the appellant and appellant 1 created a narrative to incite the youth of Jammu and Kashmir to adopt violent means of protest to secede from India and accede to Pakistan and, the offending article was written with that intention in which the appellant was a willing collaborator and appellant 1 was the agent provocateur.

Per contra, the appellants contended that though there is an allegation that the article caused breach of peace and tranquillity but no details of any incidents of violence, attack on security forces immediately following the articles being uploaded and which were a direct result of the offending article, has been given. Furthermore, the FIRs that were registered were of the years 2020 to 2022, and it cannot be presumed reasonably that the instances of stone pelting that may have taken place in the year 2022 were on account of the instigation of the offending article that was uploaded in the year 2011. These charges were thus speculative as per the appellants.

The appellants stated that in this regard it is necessary to advert to the rule of law in the Latin maxim causa proxima non remota jura spectator i.e., it is the proximate cause and not the remote cause, which is relevant while fixing liability. Therefore, affixing liability for the offences between the year 2020 to 2022 based on the article written and published in the year 2011, would be stretching causation to absurd limits.

Court’s Assessment: Having read the article in question, the Court prima facie found that it calls for the secession of Jammu and Kashmir from India, however, there is no reference to in the article for its accession with Pakistan. “The article accuses the Indian government of genocide against Kashmiris and that they would one day secure freedom. It must however be stated here that there is no call to arms by the author. There is no incitement to an armed insurrection against the State. There is no incitement to violence of any kind much less acts of terrorism or of undermining the authority of the State with acts of violence”.

The Court also took note of the collection of unpublished poems written by the appellant and opined that they reflect the appellant’s fondness for the valley and freedom, as also his pain and anguish at the turmoil in the state. “These poems have been placed before the Court only to show the mental bearing of the appellant as someone who is of a separatist mentality. In other words, the prosecution wants the Court to hold the appellant prima facie at fault for his mental state”.

Coming to the afore-stated questions that had to be examined, the Court pointed out that arrest, is an executive discretion with the police, and the police need not arrest a person even where there is evidence against him of having committed offences under chapter IV and VI of the UAPA and neither can they be compelled to do so by the courts. Even when the investigating agency is empowered to arrest an accused of having committed an offence, the investigating agency would have to justify the need for making such an arrest.

It was further stated that while hearing a bail application of an accused for having committed an offence under Chapter IV or VI of the UAPA, the court would have to superficially appreciate the evidence against the accused to see if there exists a prima facie case against him. That the bar to grant bail in view of the proviso to S. 43-D(5) of the UAPA shall not impede the Constitutional Courts to grant bail to an accused where the Court is satisfied that there is a violation of any of the fundamental rights of the accused as enshrined in part III of the Constitution.

The Court pointed out that legislative intent behind S. 43-D(5) of UAPA and its proviso was to ensure that those who were a “clear and present danger” to the society, whose relationship with the offence is proximate and direct, do not get bail during the pendency of the trial lest they take to their nefarious ways again, once released. It was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time.

Decision: The Court was of the opinion in the instant case, prima facie, offence u/s. 18 of the UAPA is not made out as the act of the appellant does not come within definition of a terrorist act u/s. 15 of the UAPA as prima facie there is no material to suggest that the article hosted by the appellant has any content that provokes people to take to arms and resort to violence. On facts also, the bar of the proviso to S. 43-D(5) of UAPA is not applicable in this case as the act of the appellant does not fulfil the requirements of s. 15 of the UAPA and therefore, the appellant cannot be tried for the offence u/s. 18 of the UAPA.

Vis-à-vis Section 13 of UAPA the Court held that there is sufficient material to prima facie hold that appellant can be tried for the offence as there is prima facie evidence on record to support that charge.

As regards the offence u/s. 35 and 39 of the FCRA, the Court held that there is sufficient material to take the prima facie view that the appellant had received remittances from overseas without intimating the authorities about it and therefore, there is sufficient evidence for the appellant to stand trial for the same.

Though there is prima facie material for the appellant to stand trial for the offence u/s. 13 of the UAPA and Ss. 35 and 39 of the FCRA, the same does not become an impediment to the appellant being enlarged on bail.

[Peerzada Shah Fahad v. UT of J&K, 2023 SCC OnLine J&K 954, decided on 17-11-2023]

*Judgment by Justice Atul Sreedharan

Advocates who appeared in this case :

Appellant- P.N. Raina, Senior Advocate with J.A. Hamal, Advocate

Respondent- Monika Kohli, Senior Additional Advocate General and Mohsin Qadri, Senior Additional Advocate General

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