UNION TERRITORY THROUGH POLICE STATION KUPWARA (HOME) vs MOHD YOUSUF LONE
- Court
- Jammu and Kashmir High Court
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
……
CrlA(D) no. 43 of 2025
Reserved on: 17.08.2026
Pronounced on: 27.08.2026
Uploaded on: 31.08.2026
Whether the operative part or
full judgment is pronounced: Full
UT of J&K through Station House Officer police station Kupwara
…….Appellant(s)
Through: Mr. Mohsin Qadri. Sr.AAG with
Ms. Maha Majeed, assisting cousnel
Versus
Mohd Yousuf Lone S/o Abdul Rehman Lone R/o Kralpora Kupwara
……Respondent(s)
Through: Mr. Arshid Andrabi, Advocate
with Ms Bariqah Shahrie, Advocate
CORAM:
HON’BLE THE CHIEF JUSTICE (ACTING)
HON’BLE MR JUSTICE MOHD YOUSUF WANI,
JUDGE
JUDGEMENT
Chief Justice (A):
CrlM no.682/2025
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1. The delay in filing the appeal against order/judgement dated 3 January
2025, passed by the court of Additional District & Sessions Judge
(Designated Special Court under NIA Act) Kupwara (hereinafter referred
to as the “Trial Court”) in case titled “State through SHO P/S Kupwara v.
Mohd Yousuf Lone and another”, in connection with FIR no.279/2013
under Section 148, 336, 171-C, 171-F RPC and 13 UAPA of police
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station Kupwara, whereby the respondent has been discharged from the
commission of offences punishable under Section 171-C, 171-F RPC and
13 UAPA, and the case transferred to the court of Sub Judge (Judicial
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Magistrate 1 Class), Kupwara, for further disposal and framing of
charges under Section 147, 336 RPC, is sought to be condoned on the
grounds mentioned in the instant application.
2. Subsection (5) of Section 21 of the National Investigation Agency Act,
2008 [“the Act”] provides that an appeal against any judgement, sentence
or order, which is not an interlocutory order, passed by the Special Court
under the Act, shall be preferred within a period of thirty days from the
date of the judgement, sentence or order appeal from. However, first
proviso to Subsection (5) extends further thirty days if the High Court,
upon entertaining an appeal after expiry of the thirty days, is satisfied that
the appellant had sufficient cause for not preferring an appeal within the
period of thirty days. Second proviso to Subsection (5) goes further to
provide that no appeal shall be entertained after the expiry of period of
ninety days.
3. We have considered the averments made in the application, objections
filed thereagainst by respondent and the submissions made by the learned
counsel for the parties.
4. Sufficient cause has been shown by applicant/appellant for condoning the
delay of 57 days, after deducting 90 days as is provided under Subsection
(5) of Section 21 of the Act. Resultantly, the delay of 57 days in filing the
appeal is condoned. CM disposed of.
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5. As already mentioned above, this appeal is directed against the order/
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judgement dated 3 January 2025, by which the respondent has been
discharged from the commission of offences punishable under Section
171-C, 171-F RPC and 13 ULA(P) Act.
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6. Briefly put, the facts leading to filing of the present appeal are that on 8
November 2013, a docket was received by police station Kupwara from
incharge police patrolling party deputed at Bazar Kupwara, in which it
was reported that while performing patrolling/law and order duty, the
police party noticed that a procession was taken out by the separatist
Hurriyat front-runner Syed Ali Shah Geelani along with Mohd Yousuf
Lone – respondent herein, and that the participants in the procession were
raising slogans against the unity and integrity of India and were inciting
the public for challenging India’s territorial sovereignty; due to which the
procession turned into a mob and pelted stones at the security forces. On
receipt of this information, FIR no.279/2013 was registered and
investigation set into motion. Upon completion of investigation and after
obtaining sanction from competent authority, the charge sheet was laid
before the court of competent jurisdiction. It is by virtue of
order/judgement impugned that respondent has been discharged of the
offences punishable under Section 13 of Unlawful Activities (Prevention)
Act [“UAPA”] and Sections 171-C and 171 of Ranbir Penal Code
[“RPC”]. Aggrieved thereof, appellant is before us with this appeal.
7. We have heard learned counsel for parties and considered the matter. We
have perused the impugned order and gone through the record.
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8. The grievance of the appellant, which is stoutly pressed into service by
learned Sr. AAG, is that the Trial Court has passed the order impugned in
a completely mechanical manner, more particularly when there was
ample evidence contained in the charge sheet, which remained
unappreciated by the Trial Court, resulting in wrongful discharge of
accused/respondent under Section 13 of UAPA. He also avers that the
slogans raised by the mob led by accused/respondent were aimed at
seceding the territory of Jammu and Kashmir from the Union of India
and that the spoken words, gestures and the violence that erupted
thereafter as documented in the charge sheet, clearly attracted the
ingredients of an unlawful activity but the Trial Court, without making an
iota of discussion or even a passing reference to this vital material,
erroneously concluded that no prima facie case was made out vis-à-vis
the commission of offence punishable under Section 13 of UAPA. It is
also the contention of appellant that accused/ respondent was an active
member of Hurriyat Conference and at the relevant time was leading the
mob along with its Chairman, Syed Ali Shah Geelani. The avowed object
of this banned organization has consistently been to secede the territory
of Jammu and Kashmir and Ladakh from the Union of India and accede
it with Pakistan, which fact was specifically argued before the trial Court,
but even this important aspect remained unappreciated by the trial Court
while passing order impugned. It is also stated by appellant that the
slogans raised and activities carried out by accused/respondent during
unlawful procession were directly aimed at challenging the unity,
integrity and sovereignty of India, thereby constituting an unlawful act
under Section 13 of UAPA and that the Trial Court has erred in holding
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that there was insufficient material to frame the charges under Section 13
of UAPA, despite the fact that sanction under Section 45 of UAPA had
been duly obtained from competent authority, which undoubtedly
reviewed the whole investigation before the accord of sanction.
9. Per contra, learned counsel for the respondent supported the impugned
order, by submitting that charge sheet/challan no.73/2023 was filed on
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21 November 2022 in a criminal investigation, which spread over a period
of nine years, and after a trial extending for further three years while
examining statements of witnesses and material on record, the accused/
respondent was found innocent and discharged by order impugned. It is also
stated by learned counsel for respondent that the case was argued at
charge/discharge stage and the stand was taken by accused that Financial
Commissioner (Home) was not competent to grant sanction for
prosecution in the matter under Section 13 of ULA (P) Act in terms of
Section 45 (2) of ULA (P) Act. The Trial Court also considered existence
of prima facie case in light of material produced by appellant, to form an
opinion whether a prima facie case existed and after arriving at subjective
satisfaction that in light of material on record there was no probability of
arriving at the conclusion that charge could be framed, the order
impugned came to be passed, discharging the accused/ respondent of the
commission of offences punishable under Section 13 UAPA and Section
171-C, 171-F RPC.
10. At the outset, it is necessary to recapitulate the legal parameters
governing discharge of an accused upon opening of the case for
prosecution. Section 227 of the Code of Criminal Procedure (Cr.P.C.) in
unequivocal terms provides that if, upon consideration of the record of
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the case and the documents submitted with the case, and after hearing
submissions of the accused and prosecution, the court considers that there
is not sufficient ground to proceed against accused, the court shall
discharge the accused but reasons for discharge of accused should be
recorded. However, if after consideration of the case and material on
record and hearing the parties, the court is of the opinion that there is
ground for presuming that accused has committed the offence(s) which is
triable by the court, he may frame a charge against the accused as is
provided under Section 228 Cr.P.C.
11. Conjoint reading of two provisions, viz. Section 227 and 228 Cr.P.C.,
abundantly provides that at the beginning and at the initial stage of trial,
the truth, veracity and effect of evidence which the prosecution proposes
to adduce are not to be meticulously judged, nor is any weight to be
attached to the probable defence of the accused. It is not necessary for the
court, at that stage of the trial, to consider in any detail and weigh in a
sensitive balance whether the facts, if proved, would be incompatible
with the innocence of the accused or not. The standard of test and
judgment which is to be finally applied before recording a finding
regarding the guilt or otherwise of the accused is not exactly to be
applied at the stage of deciding the matter under Sections 227 or 228
Cr.P.C. The Court, at that stage, is not to see whether there is sufficient
ground for conviction of the accused or whether the trial is sure to end in
his conviction. Strong suspicion against the accused, if the matter
remains in the region of suspicion, cannot take the place of proof of his
guilt at the conclusion of the trial. But at the initial stage if there is a
strong suspicion which leads the Court to think that there is ground for
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presuming that the accused has committed an offence then it is not open
to the Court to say that there is no sufficient ground for proceeding
against the accused.
12. The Hon’ble Supreme Court in the case of State of Bihar v. Ramesh
Singh, (1977) 4 SCC 39, has categorically held that at the stage of
framing of charge, the Judge is not expected to conduct a mini-trial or to
weigh the pros and cons of the material on record. The court is only
required to consider the broad probabilities of the case, the total effect of
the evidence and the documents produced, and determine whether a
prima facie case is made out. If the material placed on record, if accepted
at its face value, is sufficient to proceed against the accused, discharge
cannot be granted.
13. In Union of India v. Prafulla Kumar Samal and another, 1979 (3)
SCC 4, the Supreme Court summarized the following principles
governing framing of charge under Section 227 Cr.P.C.:-
“10. Thus, on a consideration of the authorities mentioned above, the
following principles emerge:
(1) The Judge while considering the question of framing the
charges under Section 227 of the Code has the undoubted power to
sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been made
out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained, the Court will be fully justified in framing a charge and
proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a
rule of universal application. By and large, however, if two views
are equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully within his right
to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the
Code, the Judge which under the present Code is a senior and
experienced court cannot act merely as a post office or a mouthpiece
of the prosecution, but has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced
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before the Court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the evidence
as if he was conducting a trial.”
14. In the case of Sajjan Kumar v. CBI, (2010) 9 SCC 368, the accused was
alleged to have instigated and led a mob during the 1984 riots. The
Hon'ble Supreme Court held that at the charge stage the court is not to
weigh the material as if conducting a trial and that a strong suspicion
arising from material on record, even where a fuller assessment of its
truth is reserved for trial, suffices to frame a charge, and that discharge is
warranted only where the material gives rise to mere suspicion, as
distinguished from grave suspicion. The facts of the present case,
involving an accused/respondent alleged to have led a mob and incited it,
are closely analogous, and the same standard ought to have governed the
Trial Court’s approach.
15. The case of Asim Shariff v. National Investigation Agency, (2019) 7
SCC 148, being a case in which the Hon'ble Supreme Court examined a
discharge application arising from a Special Court constituted under the
NIA Act, involving offences under the UAPA. The Supreme Court
reiterated that a Judge considering framing of charge has the power to sift
and weigh evidence only for the limited purpose of ascertaining whether
a prima facie case is made out, and that where the material discloses
grave suspicion not properly explained by the accused, the court is
justified in framing the charge and leaving the merits to be tested at trial.
16. In M. E. Shivalingamurthy v. Central Bureau of Investigation, AIR
2020 (2) SCC 768, again the principles were reiterated that while
deciding discharge, only the material brought on record by the
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prosecution, both in the form of oral statements and documents, have got
to be considered. The accused is entitled to discharge only if the
statements recorded under Section 161 CrPC, which the prosecution
proposes to adduce to prove the guilt of the accused, even if fully
accepted without being challenged in cross-examination or rebutted by
the defence, cannot show that the accused committed an offence, there a
case of discharge can be said to be made out.
17. It is well settled, and indeed has correctly been recorded by the Trial
Court as well in paragraph 04 of the order impugned that at the stage of
framing of charge the court is not required to hold a mini-trial or to weigh
the evidence as if adjudicating the guilt. The test is whether on the
material placed on record, a strong suspicion arises that the accused has
committed the offence alleged. Reliance is placed on Prafulla Kumar
Samal (supra), and State of Orissa v. Debendra Nath Padhi, (2005) 1
SCC 568, for the proposition that the court is not to conduct a roving or
meticulous inquiry into the evidence, and also on Vijayan v. State of
Kerala, (2010) 2 SCC 398, for the guiding principles summarised therein
including that the trial judge is not a mere post office of the prosecution,
that a strong suspicion suffices to frame a charge, and that only where the
material gives rise to suspicion alone, as distinguished from grave
suspicion, is discharge warranted.
18. Having correctly stated this principle, the Trial Court, however, did not
apply it in substance while passing the order impugned. Instead of
confining itself to the limited enquiry as to whether the charge-sheet
material, taken at face value, discloses the ingredients of Section 13
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UAPA read with Section 2(o) thereof, the Trial Court appears to have
proceeded to conclusively hold that the ingredients of unlawful activity
were not made out which is a finding more appropriate to the trial stage
than to the stage of charge.
19. Perusal of the record would reveal that in the present case, the
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prosecution case, as also recorded in the impugned order, is that on 8
November 2013, a mob headed by respondent and Late Syed Ali Shah
Geelani, chairman of the banned Hurriyat Conference, came out of Jamia
Masjid, Kupwara, raised antinational slogans against the Government of
India, and pelted stones on police/security forces, with the separatist
leaders also instigating the general public against the sovereignty and
territorial integrity of the Union of India.
20. Section 2(o) of UAPA defines “unlawful activity” to include, inter alia,
any action taken by an individual or association, whether by committing
an act or by words, either spoken or written, or by signs or by visible
representation or otherwise, which is intended, or supports any claim, to
bring about the cession of a part of the territory of India from the Union,
or which incites any individual or group to bring about such cession, or
which questions, disrupts or is intended to disrupt the sovereignty and
territorial integrity of India. 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.
21. The Trial Court has recorded, in a single sentence in paragraph 06 of the
order impugned, that the facts “do not fulfil the ingredients of Sections
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2(o) of ULA(P) Act” without setting out the reasoning by which the
specific statements/conduct attributed to the respondent in the charge-
sheet were tested against the statutory definition. This amounts to a bare
conclusion rather than a reasoned finding. The material with charge-
sheet, including the recorded slogans, the leadership role attributed to
respondent, and the resultant violence, at the very least, discloses a strong
suspicion sufficient to put the respondent 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.
22. 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. However, it is abundantly clear
from perusal of the order impugned that the same does not indicate that
the specific contents of the charge-sheet, the statements of the witnesses
to the procession, the site plan, and the material, alleged to link the
respondent to the incitement and the resultant violence, were tested
against the ingredients of Section 13 read with Section 2(o) of the UAPA
before the conclusion of non-applicability was recorded. On this ground
the order impugned is unsustainable and calls for interference.
23. At this stage, we do not make any definitive finding on the guilt or
innocence of the respondent, nor are we expressing any opinion on the
ultimate merits of the case. However, when specific material is brought
on record that, on the face of it, discloses the commission of an offence
and the complicity of the respondent, the Trial Court cannot act as a mute
spectator and shut the doors of trial without assigning valid legal reasons.
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24. In view of the above, the impugned order cannot be sustained in the eyes
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of law. The Criminal Appeal is, accordingly, allowed. The order dated 3
January 2025, passed by the court of Additional District & Sessions
Judge (Designated Special Court under NIA Act) Kupwara, in case titled
“State through SHO P/S Kupwara v. Mohd Yousuf Lone and another”, in
connection with FIR no.279/2013 under Section 148, 336, 171-C, 171-F
RPC and 13 ULA(P) Act of police station Kupwara, is set-aside. As a
result of which, the charge-sheet shall stand restored with a direction to
the Trial Court to proceed with the framing of charge against respondent
afresh after considering the material placed on record by the appellant
and pass a reasoned order in accordance with law after providing an
opportunity of hearing to both sides.
25. Disposed of.
26. Let a copy of this judgment be sent to the Trial Court.
(Mohd Yousuf Wani) (Sanjeev Kumar)
Judge Chief Justice (Acting)
Srinagar
27.08.2026
Ajaz Ahmad, Secy
Whether approved for reporting? Yes
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