J&K High Court quashes UAPA Section 20 charge, finding no terrorist act attributed to accused; upholds Section 13 charge for promoting banned groups’ ideology

On 7 February 2024, FIR No. 08/2024 was registered at Police Station Shaheed Gunj, Srinagar, concerning the shooting of two non-local persons, one of whom subsequently died.

The investigation alleged the involvement of members and associates of The Resistance Front (TRF) and Lashkar-e-Taiba (LeT).

The petitioner, Dawood, was alleged to be a close associate of co-accused Adil Manzoor Langoo and Arhan Rasool Dar, to have been influenced by the book Milestones , and to have assisted in concealing or removing a polythene bag used to carry weapons allegedly collected by the co-accused.

The prosecution also relied upon digital material allegedly showing the petitioner near posters associated with ISJK and Ansar Ghazwat-ul-Hind, the statement of a protected witness, and a CFSL report concerning the recovered polythene bag.

The NIA filed a charge-sheet for offences under Sections 302 and 307 IPC, Section 7/27 of the Arms Act, and Sections 15, 16 and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

The trial court discharged the petitioner for Sections 302 and 120-B IPC and Sections 16, 18 and 23 UAPA, but framed charges under Sections 13 and 20 UAPA and Section 201 IPC.

The petitioner invoked Section 528 BNSS seeking quashing of the order framing charge.

Whether the material on record disclosed the ingredients of Section 20 UAPA, namely membership of a terrorist gang or terrorist organisation involved in terrorist acts, so as to justify framing a charge against the petitioner.

Whether the trial court could frame a charge under Section 13 UAPA although that provision had not been specifically invoked or charge-sheeted by the investigating agency.

Whether a fresh sanction under Section 45 UAPA was necessary before framing the additional charge under Section 13 UAPA.

Whether the material, including the alleged recovery of the polythene bag and the CFSL report, made out a prima facie case under Section 201 IPC.

The Court applied the principles governing discharge and framing of charge under which the court may sift the material for the limited purpose of determining whether the facts, taken at their face value, disclose the ingredients of the alleged offence, but cannot conduct a mini-trial; grave suspicion is sufficient to frame a charge, whereas mere suspicion is not, relying on Niranjan Singh Karam Singh v. Jatinder Bhimraj , State of Bihar v. Ramesh Singh , Union of India v. Prafulla Kumar and Sajjan Kumar v. CBI .

Section 20 UAPA was interpreted in accordance with Vernon v. State of Maharashtra , approving Dr. Anand Teltumbde v. NIA , to require material indicating both membership of a terrorist gang or organisation and involvement in, or indulgence in, a terrorist act as defined under Sections 2(1)(k) and 15 UAPA.

Section 13 UAPA was considered in light of the definition of “unlawful activity” under Section 2(1)(o).

The Court held that framing of charge is a judicial function and that, under Section 239 BNSS, the court may add or alter a charge where the material collected during investigation supports the offence, notwithstanding the investigating agency’s formulation of the charge-sheet.

Under Section 239(5) BNSS, no fresh sanction is required where sanction has already been granted for prosecution on the same facts; Section 45 UAPA requires prior sanction for cognizance of offences under Chapter III, following independent review of the investigation material.

Section 201 IPC was applied to the alleged concealment or destruction of evidence.

The Court held that Section 20 UAPA could not be sustained merely on allegations of association, radicalisation, possession of Milestones , or proximity to co-accused.

Following Vernon , the prosecution was required to show material connecting the petitioner with a terrorist act under Section 15 UAPA.

Since no overt or covert terrorist act was attributed to the petitioner, the essential ingredients of Section 20 were absent and the charge under that provision was legally unsustainable.

The Court nevertheless upheld the Section 13 charge.

It found that the petitioner’s alleged recovery of the polythene bag, his association with the co-accused, the digital material depicting him near ISJK and Ansar Ghazwat-ul-Hind references, and the protected witness’s statement constituted sufficient prima facie material suggesting advocacy or incitement of unlawful activity through visible representation and related conduct.

The investigating agency’s omission to charge Section 13 did not restrict the trial court’s independent judicial power to frame an appropriate charge on the basis of the evidence collected.

The challenge based on absence of specific sanction also failed because sanction had been granted after independent review on the same factual material, and Section 239(5) BNSS did not require a fresh sanction for the added charge.

Finally, the positive CFSL report matching the recovered polythene bag with the photograph of the bag allegedly used for transporting the weapons supplied prima facie support for the Section 201 IPC charge.

The High Court quashed the charge framed against the petitioner under Section 20 UAPA because the record did not disclose his involvement in a terrorist act as required by the statutory scheme and the rule in Vernon .

It upheld the charges under Section 13 UAPA and Section 201 IPC, holding that the trial court had jurisdiction to frame Section 13 on the basis of the investigation material and that the evidence disclosed a prima facie case of unlawful activity and destruction of evidence.

The trial court was directed to proceed with the trial in accordance with law, uninfluenced by the observations made in the judgment.