The High Court of Jammu and Kashmir and Ladakh recently observed that raising secessionist slogans, leading a mob alongside separatist leaders and inciting violence against security forces will prima facie fall within the definition of “unlawful activity“ under the Unlawful Activities (Prevention) Act (UAPA).
A Bench of Acting Chief Justice Sanjeev Kumar and Justice Mohd Yousuf Wani made the observation while restoring UAPA charges against one Mohd Yousuf Lone.
"The sloganeering for secession, raised by an accused leading a mob in the company of the head of a proscribed separatist organisation, and coupled with incitement of the public and violence against security forces, is capable, on a prima facie appreciation, of falling squarely within this definition (of 'unlawful activitiy' under UAPA),” the Court observed.
Lone was accused of leading a mob alongside separatist Hurriyat Conference chairman Syed Ali Shah Geelani in Kupwara in November 2013. The mob also allegedly raised anti-national slogans and pelted stones at security forces.
A trial court in Kupwara had earlier discharged Lone from having to face prosecution for the offences under Section 171-C and 171-F (offences related to undue influence during elections) of the Ranbir Penal Code (RPC) and Section 13 of the UAPA.
The case was transferred to a Magistrate's court for trial on the remaining charges under Sections 147 (rioting) and 336 (endangering peace) of the RPC.
The Jammu and Kashmir administration challenged the discharge order before the High Court, which on August 27 allowed the goverment's appeal.
The High Court held that Lone's alleged acts fell within the ambit of "unlawful activity" under UAPA and disagreed with the trial court's contrary finding.
The Court pointed that Section 2(o) of the UAPA defines "unlawful activity" to include any action which is intended to bring about the cession of a part of the territory of India from the Union, or which incites such cession, or which questions or disrupts the sovereignty and territorial integrity of India.
"The material with charge-sheet, including the recorded slogans, the leadership role attributed to respondent (Lone), and the resultant violence, at the very least, discloses a strong suspicion sufficient to put (Lone) on trial for the offence, leaving the question of whether the ingredients are ultimately proved to be examined at trial and not foreclosed at the threshold," the Court added.
The Court further noted that the trial court had simply recorded in a single sentence that the facts on record "do not fulfil the ingredients" of Section 2(o) of the UAPA, without setting out any reasoning.
"This amounts to a bare conclusion rather than a reasoned finding... 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," the High Court added.
It, therefore, set aside the trial court's discharge order. The trial court was directed to conduct a fresh hearing and pass a reasoned order on the framing of criminal charges against Lone, after considering the material on record.
The High Court clarified it had made no finding on Lone's guilt or innocence, which will have to be examined by the trial court.
Senior Additional Advocate General Mohsin Qadri, and assistent counsel Maha Majeed represented the Jammu and Kashmir administration.
Advocate Arshid Andrabi assisted by advocate Bariqah Shahrie appeared for Lone.
[Read Order].