FAROOQ AHMAD SHEIKH Vs. ZAHID ALI LONE

JUDGEMENT

(1.) On 04.08.2017, the police authorities of police station D. H. Pora, Kulgam, came to know from a reliable source that the petitioners, alongwith others, raised unwarranted slogans, with the object to induce the youth of the adjoining areas to indulge in rioting and join the militant ranks to accomplish the ultimate aim of seceding the State of Jammu and Kashmir from the Union of India. This occurrence is alleged to have taken place on 02.08.2017, at the time of the burial of one of the militants, who had died. On this information, a case for offences under Section 153 RPC and Section 13 Unlawful Activities (Prevention) Act 1967, bearing FIR No. 69/2017, was registered at the Police Station D. H. Pora, District Kulgam, where the investigation commenced. The petitioners were arrested on 04.08.2017. During the course of the investigation of the case, the petitioners moved an application for bail before the Court of the learned Principal, District and Sessions Judge, Kulgam, who by his order dated 19.08.2017, rejected the same, primarily, on the ground that taking into consideration the facts and circumstances of the case and the nature and seriousness of the charge, leveled against the petitioners, they were not entitled to bail.

(2.) Aggrieved by this order, the petitioners filed two applications for admitting them to bail before this Court on the grounds, inter alia, that the offence under Section 153, is not made out in the instant case, as the section presupposes that the accused should do something illegal and by committing such illegal act, they must have given malignant or wanton provocation likely to incite rioting. Since the allegations are shown to fall within the ambit and scope of Section 153 RPC, therefore, resort cannot be taken simultaneously for implicating the petitioners in any cognate or separate offence. There is nothing in the FIR to state what words were used by them to incite the youth to join the militant ranks and in the absence of such a narration in the FIR or electronic record preserving such speech, there is no evidence to implicate the petitioners for any unlawful 'activity within the meaning of the Act.

(3.) The petitioners have proceeded to state that the investigation of the case is complete. Their continued detention in the hands of police authorities will prevent them from preparing for their defence, which is a sine qua non of a criminal trial. It has also been stated that the pretrial custody is discouraged by law and the continued custody assumes penal consequences and will have severe implications on their defence and the health conditions. They are innocent. They have not committed any offence. The allegations leveled against them are baseless. These have no relevance to Section 13 of the Unlawful Activities (Prevention) Act. In the end, the petitioners have urged that they be admitted to bail.