Offering Funeral Prayers Of A Killed Militant Cannot Be Construed To Be An Anti-National Activity: J&K&L High Court

The Jammu & Kashmir & Ladakh High Court recently ruled that offering of funeral prayers of a killed militant by the public at large cannot be construed to be anti-national activity of that magnitude to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution.

A bench of Justices Ali Mohammd Magrey and MD Akram Chowdhary was hearing two appeals filed by the government challenging orders passed by Special Judge Anantnag (Designated Court for Unlawful Activities (Prevention) Act) on February, 11, 2022 and February, 26, 2022 wherein bail was granted in favour of the respondents in two separate applications.

The main ground raised by the appellants was that the court below while deciding the bail applications had not appreciated the fact that there was sufficient evidence connecting all the accused including respondents herein with the commission of offence. The Appellant also contended that the incriminating material in the case-diary explicitly establishes the case against the accused persons and their prima facie involvement with the commission of offences.

Counsel for the UT administration further argued that Section 43-D of UA(P) Act expresses bar on granting bail to the accused persons when there are reasonable grounds for believing that the accusations against such persons are prima facie true.

Upholding the bail order granted by trial court in favour of a few villagers of Devsar, Kulgam including Imam of Masjid Sharief, Javid Ahmad Shah, accused of offering funeral prayers in absentia of a slain militant, the court noted that no individual can be deprived of his fundamental right of liberty guaranteed under Article 21 of Constitution of India.

Perusal of the record revealed that earlier, an FIR was registered in 2021 against 10 accused persons including the respondents for the commission of offence punishable under Section 13 of UAPA at Police Station Devsar, Kulgam. Copy of the FIR revealed that in November 2021, a local militant of Hizbul Mujahideen outfit, got killed during an encounter with the security forces.

In the FIR it was alleged that after the news of a slain militant spread in the village, a person, namely, Mohammad Yousuf Ganai "provoked" the villagers to perform "Gaibana Namazi-Jinaza" (funeral prayers in absentia) of the said killed militant.

It was further alleged that upon his "provoking" the Imam of Masjid Sharief, Javaid Ahmad Shah offered the Jinaza (funeral prayers) and during Jinaza the sentiments of the persons who were part of the said assembly got "incited" by urging them "to continue struggle till freedom."

Adjudicating upon the matter, a division bench noted that the legislative policy under Section 43-D(5) of UA(P) Act is that no person accused of an offence punishable under Chapters IV and VI of the UA(P)A shall, if in custody, be released on bail, if the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Both these Chapters deal with the accusation of terrorist activities, the court maintained.

The bench recorded that the trial court was right in its observations made in the order impugned while deciding the application and admitting the respondents to bail and that it would be apt to say that the right of personal liberty is the most precious right, guaranteed under the Constitution.

Relying on Supreme Court directives in the case of Maneka Gandhi vs. Union of India, the court held that a person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure is to be just and fair.

It recorded that the personal liberty may be curtailed where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment.

"Offering of funeral prayers of a killed militant by the public at large, even at the instance of the respondents herein, who are stated to be elderly people of their village, cannot be construed to be anti-national activity of that magnitude so as to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution of India," the bench said.

Dismissing the plea of government, the bench said that nothing incriminating against the accused-respondents has been found during the investigation of the case so as to deny them bail, the respondents were rightly admitted to bail by the trial court.

Needles to state, the court pointed out, that in such an eventuality, the bar as contained in Section 43-D of UA(P) Act, is also not attracted. We, thus, find no ground for interference with the impugned orders, the same are upheld. Resultantly, both the appeals were dismissed.

Case Title: UT Of J&K Vs Javid Ahmad Shah

Citation: 2022 LiveLaw (JKL) 144

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