Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Karkardooma Court, Delhi: In a case filed against chief and members of terrorist organization Dukhtaran-e-Millat (“DEM”) for promoting secession of Kashmir and waging war against India, the Single Judge Bench of Chander Jit Singh, J., convicted the accused persons under Sections 120B, 121A, 153A, 153B, and 505 of the Penal Code, 1860 (“IPC”), and Sections 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”).
Background
The prosecution’s case was that the Central Government received credible information that Aasiyeh Andrabi and her associates Sofi Fehmeeda and Nahida Nasreen, as well as others from a proscribed terrorist organization DEM, were using various platforms to spread insurrectionary imputations and hateful speeches to endanger the integrity, security, and sovereignty of India. Allegedly, DEM is an all-women outfit with a declared objective of achieving secession of Kashmir from India and merger of Kashmir with Pakistan. Thus, the National Investigation Agency (“NIA”) registered the present case.
Thereafter, the accused persons were arrested after filing of an FIR and produced before the Special Judge, NIA Court on 06-07-2018 for proceeding/investigation.
The NIA alleged that the accused persons were running a propaganda campaign on their social media handles wherein they broadcast seditious, inflammatory, and insurrectionary material/statements with a clear objective of orchestrating an uprising against the Indian State. It is further alleged that the accused persons used social media and interviews to instigate people of Jammu & Kashmir against Indian security forces. There were also allegations of supporting Kashmiri militants and inciting terrorist activities.
During the investigation, the NIA analysed 8 mobile numbers of the accused persons and noted that the accused persons had contact with their associates who were residing in the State and Pakistan. Additionally, various documents and incriminating materials were seized. They also discovered the house that allegedly served as DEM headquarters.
Vide order dated 21-12-2020, charges were framed against all the accused persons under Sections 120B, 121,121A, 124A, 153A, 153B, and 505 of the IPC, and Sections 18, 20,38, and 39 of the UAPA.
Analysis
Upon perusal of the material on record, arguments of the parties and the judgments relied upon by the parties, the Court conducted a detailed analysis for each charge in the following manner:
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Section 124A IPC: Regarding this charge, the Court placed reliance on S.G. Vombatkere v. Union of India, (2022) 7 SCC 433, wherein it was held by Supreme Court that all pending trial, appeal and proceedings in respect to charges framed u/s 124A IPC to be kept in abeyance with liberty for adjudication regarding other charges, if any, if the Court thinks that no prejudice could be caused to accused.
The Court reiterated that whenever an accused is charged with more than one count, the prosecution is required to prove each count of charge separately and adduce evidence to bring home the guilt of the accused. No doubt, when upon the same facts and circumstances, different charges are framed against the accused, there will be certain facts which will overlap. However, the factual matrix of the case and evidence adduced by the prosecution are to be considered holistically qua the offence in consideration. The Court added that proof of one of the charges does not imply that it automatically amounts to proof of all the charges forthwith for which the accused is facing trial.
Therefore, the Court opined that since the prosecution was required to prove the ingredients of each offence separately, no prejudice would be caused by adjudicating the other offences besides the offence under Section 124 A of IPC.
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Section 17 UAPA: To understand the position of law on the issue of terrorism, the Court referred to Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1, and PUCL v. Union of India, (2004) 9 SCC 580.
The Court perused Section 2(k) and 15 of the UAPA to determine meaning of terrorism and noted that the Legislature had given a broadest possible spectrum to deal with dastardly act of terrorism and included that if anything or everything of any kind of modus is used by a person while doing an act with the requisite intention and for the purpose contained in Section 15 of the UAPA, then said act would be covered under the ambit of Section 15. The Court also referred to Section 2 (I) of the UAPA, which defines secession, and Section 20, which stipulates punishment for being a member of a terrorist gang or organization.
After perusal of the aforesaid, the Court stated that as far as the membership of the accused persons in a terrorist organization was concerned, the material on record reflected that they were members of DEM, which was declared as a terrorist organization by virtue of a notification in the first schedule appended to the UAPA. Thus, this element of membership was established.
Regarding the aspect of commission of a terrorist act, the Court noted that out of the 53 witnesses that had been examined along with their documents and other material, none of them deposed about any particular instance which may be termed as an actual terrorist act wherein DEM was involved. There was evidence like videos, interviews, or posts where stone pelting or use of a gun towards the secessionist approach of Kashmir was approved or endorsed and encouraged, but no violent incident in particular, pursuant to such endorsement or encouragement, was brought on record.
“In the entire evidence adduced by the prosecution after framing of charges, there is no evidence regarding any incident or act which can be said to be an actual terrorist act.”
The Court stated that encouraging citizens of this country to support and to ask for secession of a part of the country apparently seemed to be a terrorist act, but unless it satisfied the requirement laid down in Section 15 of the UAPA, the said act cannot be said to be a terrorist act. Thus, out of two ingredients, one could not be established by the prosecution.
Regarding Section 17 of UAPA, which incorporates punishment for raising funds for a terrorist act, the Court noted that certain bank statements of the bank account of accused 2 were placed on record, and a witness claimed that the same were issued by the bank under his signature. However, in the cross-examination, the witness stated that the original version of these statements did not bear a stamp and certification under Banker Books of the Evidence Act, 1872(“IEA”). Furthermore, admittedly, the certificate under Section 65B of the IEA had not been supplied. Therefore, the Court stated that the said statement, being an electronic record, was required to be proved in terms of Section 65 B of the IEA.
The Court further stated that the prosecution was required to prove that the funds in question were being raised by the accused persons. However, the statements could only be a proof of movement of money and, at best, were documents that could indicate the receipt of money or payment/transfer thereof. The Court added that Section 17 requires that funds must be raised/provided or collected by a person, i.e., a conscious effort by a person to do any of these acts with the knowledge that such funds are likely to be used by a terrorist organization or gang, or by any individual terrorist to commit a terrorist act. Accordingly, alongwith the act of raising or providing or collecting funds, the requisite mens rea of the accused is also required to be proved by the prosecution.
Thus, the Court explained that to establish that a fund has been raised by a person for achieving the nefarious design as contemplated in Section 17, the prosecution has to demonstrate that a person has done an act like asking people, organizations, or institutions for a specific purpose while conveying and convincing them about the purpose for which funds are required. To establish any such act on the part of the accused, a witness or any other material indicating such acts on the part of the accused must have been brought on record. However, no such witness had been examined, nor any material in this regard had been brought on record.
The Court further noted that the bank account in question was not stated to be in the name of DEM. Therefore, even if any money is deposited in the said bank account, it is a prima facie individual transaction. To elevate such a deposit or transaction from an individual deposit/transaction to the deposit/raising of funds for the terrorist organization, i.e., DEM, the bank statements (which were not provided for the want of a certificate under Section 65 B of the IEA), were not sufficient.
Additionally, the Court noted that other witnesses examined in this regard were the persons who received money from the accused persons either towards the purchase of auto mobile/vehicle or towards other expenses such as hospital bills. This evidence was the end use of money. The end use of money is punishable under Section 17 only when such end use is for a terrorist act. Therefore, the Court held that the prosecution failed in proving guilt under Section 17 of the UAPA.
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Section 18 UAPA and Section 120B IPC: Regarding Section 18 of the UAPA, the Court analysed several social media posts and videos made by the accused persons, which supported and encouraged secession of Kashmir from India and merger with Pakistan. The posts also showed the association of all three accused with each other. Thereafter, the Court observed that their activities were completely routed in the design of secession of the Kashmir State from India so that it may merge with Pakistan.
“They have been vociferously endorsing, supporting, and promoting the sentiments as well as provoking the people of Kashmir. So much so, in their posts, the accused have called for a boycott of elections and to reject the candidate who comes with the idea of development.”
The Court remarked that the mere act of calling upon people to boycott the elections was not a crime in itself, but this act of the accused had to be seen in the totality of the factual matrix of the case and the backdrop that the boycott of elections was premised on being anti-Islam. The attempt of the accused persons was not only to dissuade the people of Kashmir from participating in elections, but to drive them away from the talks of development, which they deserve.
Regarding Section 120 B of the IPC, the Court reiterated that one of the essential requirements of criminal conspiracy is agreement between two or more persons for doing or causing to be done an illegal act or an act which is not illegal in itself but is done by illegal means. All the persons who become part of the conspiracy or agree with each other with the intention and effort to achieve the common goal of the conspiracy are the co-conspirators to achieve this common design.
The Court stated that Section 120 B of the IPC is the direct provision for the offence of conspiracy, and Section 18 of the UAPA is the provision for conspiracy to commit a terrorist act or any other act preparatory to the commission of a terrorist act.
In the present case, the Court noted that as per the Call Data Record (CDR), all the accused persons were connected among each other and with persons in Pakistan, including with the phone numbers of persons who were known as terrorists and fundamentalists. The Court stated that this connectivity with each other and with persons located in Pakistan coupled with the fact that accused persons consistently maintained that Kashmir is not a part of India in their social media post and otherwise, showed that all the three accused persons agreed with each other and had been working towards a common goal, i.e., secession of Kashmir from India and its consequent merger with Pakistan.
Hence, the Court held that the material proved that the accused persons conspired with each other for the illegal act of secession of Kashmir from India. Therefore, the prosecution had successfully established the charges under Section 18 of the UAPA and Section 120 B of the IPC against all three accused persons.
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Section 38 and 39 UAPA: At the outset, the Court analysed contentions regarding DEM being declared a proscribed terrorist organization under the schedule of the Prevention of Terrorism Act, 2002(“POTA”) and subsequently, under the schedule appended to the UAPA through an amendment in 2004. The Court noted that though the accused persons referred to cases and RTIs filed against such inclusion, no documents or details were provided in the defence evidence. Thus, it could not be determined whether the addition of DEM to the list of proscribed terrorist organisations had been challenged. Accordingly, the Court held that it was implied that the inclusion was unchallenged and DEM shall be considered as a proscribed organization under the UAPA.
Additionally, the Court stated that being unaware of the inclusion of DEM in the list of terrorist organizations fell within the ambit of ignorance of the law and thus was unsustainable. The accused persons also did not produce any evidence indicating that they were unaware of such law. Therefore, even if for the argument, the plea of the accused is accepted that they were not aware of the status of DEM, still, it did not vest any right in them to claim secession of an integral part of India.
Regarding the contention that the accused persons were unaware of DEM being a proscribed organization and DEM was not an organization, the Court stated that on one hand, they were claiming that DEM was not an organization as such and on the other hand, they were pursuing petitions and applications on behalf of DEM. Additionally, for an organization to exist and operate, it is not necessary that such an organization should always have any official records or office bearers or members, records, etc. Such requirements stem from the legal contours regarding the existence of an organization when it is registered or seeks formal approval/recognition.
Furthermore, the Court noted that in the written arguments filed on behalf of the accused persons, they claimed and admitted to seeking the common goal of right to self-determination for merger of Kashmir with Pakistan and stated that they raised their voice under the banner of DEM. The material produced by the NIA, which included videos of many people participating in rallies and meetings chaired by accused persons, implied that there was a group of people. Hence, the Court held that clearly DEM was an organization.
Regarding Section 38 of the UAPA, membership of a terrorist organisation, the Court stated that the DEM was a terrorist organization and the material on record showed that the accused were associated and professed to be associated with it with the intention to further its activities. They were involved in the acts that promoted the secession of Kashmir from India.
As far as, offence under 39 of the UAPA, support given to a terrorist organization, was concerned, the Court stated that one of the aspects required to be proved is that whoever with intention to further activities of terrorist organization, addresses a meeting for the purpose of encouraging or support for terrorist organization or have further activities, that said person is liable to be punished. The videos and posts referred to above showed such clear acts.
Regarding the argument that the posts and videos fell within the ambit of the right to free speech and expression under Article 19(1)(a), the Court stated that seeking secession of a part of India from India was a threat to the sovereignty and integrity of India. Thus, it fell under the limitation to the right of freedom of speech and expression under Section 19(2).
The Court noted that under the veil of the right to self-determination, it was propagated that India had illegally occupied Kashmir. The accused persons also emphasized that the purported struggle was an ‘armed struggle’ and a gun was necessary for that. This reflected that the accused persons were clearly not limited to the idea that Kashmir is an unfinished agenda of the partition, rather they endorsed that Kashmir was not a part of India. The Court further noted that the accused persons also sought support of Pakistan in their interviews and conversations for their goal of secession.
Thus, the Court held that the prosecution had successfully proved the charges under Sections 38 and 39 of the UAPA against the accused persons.
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Section 153 A and 505 IPC: at the outset, the Court noted that Section 153A of the IPC required promotion of disharmony or feeling of enmity, hatred, or ill will that through spoken or written words between different religions, language or racial groups, caste or communities. Noting this, the Court stated that continuous claims by the accused persons that people of Kashmir being Muslim were not part of India was a clear attempt to promote ill will between Muslims and non-Muslims.
“The accused are specific and categorical in their contentions/acts/speeches/posts that the distinction so drawn by them is on religious lines.”
Furthermore, the Court noted that the accused did not claim that there were no non-Muslims living in the area in which the speeches were made. In fact, admittedly, about 10% of the people of Kashmir are non-Muslims. Thus, the Court held that the claims that there should be a secession of Kashmir from India and it should be merged with Pakistan on religious lines amounted to promoting disharmony and ill will in the different groups who resided in Kashmir. The Court added that the global nature of the internet resulted in such videos, messages, posts, etc., having a vast effect.
Regarding the contention that the videos were doctored, the Court stated that, other than raising an oral argument of misuse of AI, no material was produced to show that the videos were not genuine. The Court also rejected the argument that since the accused persons did not upload the videos concerned, they were not liable.
On the aspect of Section 505 of the IPC, the Court reiterated that prosecution was required to prove both making and publication of the statements by the accused persons. The Court held that the prosecution had successfully proved this charge by carrying out detailed evidence procedures which satisfied the Court.
Thus, the Court held that charges under Sections 153A and 505 of the IPC were proved by the prosecution.
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Sections 121 and 121A IPC: Noting that Section 121 of the IPC contemplated commission of an actual act of war or attempt to wage war against the government of India, the Court stated that the prosecution did not bring on record any material or examine any witness regarding any actual incident involving use of force or arms by accused persons or any other person at their instance. The material on record was limited to making speeches, videos, interviews, and posts on social media.
The Court stated the material on record fell short on the account of reflecting direct or guided involvement of accused persons in any actual act of use of force as laid down by the Supreme Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
Regarding the argument that the acts of the accused amounted to abetting the waging of war against the Government of India as per Section 107 of the IPC, the court stated that the mechanism contemplated in Section 107(a) IPC seemed applicable in the present matter. The material on record indicated and showed the endorsement, encouragement, support, and promotion of armed struggle, i.e., use of force for seeking secession of Kashmir from India. However, such support, encouragement, or promotion of the use of force was ordinarily post-incident. No witness was examined which could state that such abetment was directly associated with any particular incidence involving use of force.
Therefore, the Court held that this charge was not proved as there was no material on record regarding the actual incidence of use of force against the Government of India.
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Section 153B IPC: At the outset, the Court noted that the allegations were that the accused persons were making and publishing imputations through spoken and written words, claiming that, being Muslim by religion, they could not uphold the sovereignty and integrity of India, as Kashmir was never a part of India and should merge with Pakistan. Noting this, the Court held that when anyone intends to claim secession of an integral part of a nation based on religion, the provision of Section 153 B shall be attracted.
Further, the Court stated that the material on record reflected the contention that Kashmir should be a part of Pakistan based on religion. However, on the other hand, they also claimed that they had a right to self-determination based on the UN resolution, and at the same time, they claimed that Kashmir was already a part of Pakistan and India had illegally occupied it.
Therefore, the Court held that it was clear that the accused persons did not bear an allegiance to, believe in, or were ready to uphold the Constitution and the sovereignty of India. Hence, the prosecution had proved the charge under Section 153 B of the IPC.
Decision:
Thus, the Court convicted the accused persons under Sections 120B, 121A, 153A, 153B, and 505 of the IPC and Sections 20, 38, and 39 of the UAPA. The Court kept the charge under Section 124 of the IPC in abeyance qua all the accused persons.
[National Investigating Agency v. Aasiya Andrabi, SC No. 425/2018, decided on 14-01-2026]
Advocates who appeared in this case:
For the petitioner: DLA of NIA Kanchan, Dy. S.P. (IO) of NIA Abhinav Kajla
For the respondent: Sr. counsel Satish Tanta, Shariq Iqbal
Buy Penal Code, 1860 HERE
