Jammu & Kashmir and Ladakh High Court: In the present appeal, the order passed by the 3rd Additional Sessions Judge, Jammu (Special Judge, NIA) (‘Trial Court’) was challenged whereby the accused were discharged regarding the accusation of preparation to commit terrorist acts, as the prosecution’s evidence was not admissible.
The Division Bench of Sanjeev Kumar and Sanjay Parihar*, JJ., while allowing the appeal, observed that the Trial Court’s finding of no evidence was incorrect and at the charge stage it should not have probed the evidence exhaustively, but only determined whether the record disclosed a grave suspicion which justified framing charges. The Court set aside the impugned order and directed the parties to appear before the Trial Court for it to return a finding whether charges could be framed.
Background:
Accused 1 was caught photographing and filming vital installations and on being detained, confessed to contacting Pakistani handlers via WhatsApp and Telegram, and admitted sending photographs and video clips and being tasked to carry out terrorist activities in Jammu City. An FIR was registered under Sections 120-B and 121 of the Penal Code, 1860 (‘IPC’) and Sections 18, 20, 23, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’). During interrogation he named Accused 2, a habitual drug user in contact with the handlers and disclosed that Rs 27,000 were deposited into Accused 1’s account. Following his disclosure, Accused 2 was arrested and a mobile and SIM were seized from him.
During investigation, it was revealed that the handlers had directed the accused persons to arrange for a tamancha (locally made pistol), which was procured by Accused 1. They were also alleged to have photographed the residence of a well-known correspondent of a national news channel at Jammu and transmitted the same to their handlers, intending to facilitate his selective killing. It was thus submitted that both accused persons, in conspiracy with Pakistani handlers, engaged in activities intended to spread terrorism in Jammu & Kashmir, thereby disturbing peace and communal harmony in Jammu city.
However, the Trial Court discharged the accused persons via an order dated 26-11-2022, holding that most of the material relied on by the prosecution was based on confessional statements recorded during the investigation, which were inadmissible under Sections 24 and 25 of the Evidence Act, 1872 (‘Evidence Act’).
The State alleged that the Trial Court failed to appreciate the material collected by the Investigating Officer. The Trial Court exceeded its jurisdiction by appreciating the material as if the matter was at the stage of trial, thereby embarking upon a roving inquiry which was impermissible at the charge stage. The State’s counsel also pointed out the seizure memo and the WhatsApp chats, which established that Accused 1 was in direct touch with certain persons residing across the border. He also placed reliance on the bank statements, Call Detail Records (‘CDRs’) and Internet Protocol Detail Records (‘IPDRs’) of the accused persons’ mobile phones, that demonstrated their nexus with Pakistan-based ISI handlers.
Analysis and Decision:
The Court referred to Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, where the Supreme Court held that the Judge “must consider the broad probabilities of the case, the total effect of the evidence and documents produced, and any basic infirmities appearing in the case. This, however, did not entitle him to undertake a roving enquiry into the merits or to weigh the evidence as if conducting a trial”.
The Court also relied on Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 wherein it was observed that a “Judge has the undoubted power to sift and weigh the evidence for the limited purpose of determining whether or not a prima facie case was made out; where the material disclosed a grave suspicion against the accused which was not properly explained, the Court would be justified in framing a charge. However, the Judge should not embark upon a roving enquiry into the matter as if conducting the trial itself”.
The Court opined that the material-on-record gave rise to grave suspicion of preparatory acts for the commission of a terrorist act. The Court observed that the Trial Court’s finding that there was no evidence against the accused persons was unsustainable. At the stage of consideration of charge, the Court was not required to conduct a meticulous appreciation of evidence with a view to recording a conviction or acquittal. The limited test was whether the material-on-record disclosed a grave suspicion against the accused which, if left unexplained, warranted framing of a charge and proceeding with trial.
The Court opined that the present case was not one of mere suspicion but one raising grave suspicion, as the incriminating chats, videos, and photographs detected from the mobile phones stood corroborated by the monetary credits received through international fund transfers, thus disclosing a prima facie case, meriting determination during trial.
The Court held that the Trial Court erred in discharging the accused persons by assessing the probative value of evidence instead of examining whether it disclosed sufficient ground for proceeding with the trial and that grave prejudice was caused to the prosecution by denying it an opportunity to establish the culpability of the accused persons through evidence during trial.
Consequently, while allowing the appeal, the Court set aside the impugned order and directed the parties to appear for trial before the Trial Court, which would then proceed in accordance with law and return a finding as to whether a case for framing of charge was made out.
[State (UT of J&K) v. Mohd. Anas, Crl. A(D) No. 08 of 2023, decided on 30-09-2025]
*Judgment authored by: Justice Sanjay Parihar
Advocates who appeared in this case:
For the Appellant: Monika Kohli, Sr. AAG.
For the Accused: Surjeet Singh Andotra, Advocate.
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