India’s ‘honour’ not its ‘incorporeal property’, says J&K and Ladakh HC in Fahad Shah Order

Quashing charges framed under Section 18 of the Unlawful Activities (Prevention) Act and Sections 121 and 153B of the Indian Penal Code, Jammu and Kashmir, and Ladakh High Court has held that while justifying continued arrest of an accused, "the existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society."

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LAST week, the Jammu & Kashmir (J&K), and Ladakh High Court quashed the charges framed against journalist Peerzada Shah Fahad alias Fahad Shah under Section 18 of the Unlawful Activities (Prevention) Act (UAPA), 1967 and Sections 121 and 153B of the Indian Penal Code (IPC), 1860.

The high court, however, maintained the charges against Fahad for the offence under Section 13 of the UAPA and Sections 35 and 39 of the Foreign Contribution (Regulation) Act (FCRA), 2010.

A Bench comprising Justices Atul Sreedharan and Mohan Lal passed the Order to this effect. The Bench also granted bail to Fahad. Section 15 of the UAPA provides for the punishment for "terrorist activities", while Section 18 of the UAPA deals with conspiracy for the commission of a "terrorist act". Section 13 of the UAPA deals with the punishment for "unlawful activities".

The allegations against Fahad were that as per information received from a source on April 4, 2022, a discovery of an write-up titled 'The shackles of slavery will break' written by a co-accused and published on a webpage hosted by Fahd, was effected.

The write-up was published on the online news portal The Kashmir Walla as far back as November 6, 2011.

It was also alleged that Fahad is a part of "an ongoing operation to build and propagate the false narrative that is essential to sustain the secessionist-cum-terrorist campaign and take the same to its logical conclusion which is the breakup of the Indian Union and the secession of J&K from India and its consequent accession to Pakistan".

During the course of the hearing, the Bench sought to know from the state government how Section 15 of the UAPA was attracted for the impugned write-up.

The state government sought to submit that Fahad's case was covered by Section 15(1)(a)(ii) of the UAPA as the said clause makes an act resulting in the loss, damage or destruction of property a terrorist act.

The government's advocate sought to advance their argument by referring to Section 2(h) of the UAPA where "property" is defined as corporeal or incorporeal in nature.

The government counsel submitted that the honour, dignity and fair name of India was its "incorporeal" property which was besmirched on account of the impugned write-up hosted on the domain hosted by Fahad which levelled baseless allegations against the government of India of indulging in genocide, and the rape of Kashmiri women by Indian forces, among other things.

Rejecting the government's argument, the Bench opined that if this argument was accepted, it would literally turn criminal law on its head adding that it would mean that any criticism of the Union government could be described as a terrorist act because the honour of India is its incorporeal property.

"Such a proposition would collide headlong with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution," the Bench held.

The Bench further held that the property referred to in Section 15(1)(a)(ii) of the UAPA must be such that it is susceptible to destruction or loss using such means (explosives, firearms etc.,) as provided under Section 15(1)(a).

"Property that can suffer damage, loss or destruction can only be a material or corporeal property. An incorporeal property would be impervious to damage and destruction by the use of means mentioned in Section 15(1)(a). Therefore, the argument put forth by the learned senior additional Advocate General is rejected," the Bench ruled.

The Bench also observed that the impugned write-up did not have any reference to the accession of J&K with Pakistan.

"It accuses India and the Indian government of genocide against Kashmiris and that they would one day secure freedom. It must however be stated here that there is no call to arms by the author. There is no incitement to an armed insurrection against the State.

"There is no incitement to violence of any kind much less acts of terrorism or of undermining the authority of the State with acts of violence," the Bench said of the impugned write-up.

The Bench, thus, opined that the act of Fahad hosting content on the website run by him did not come within the definition of a terrorist act under Section 15 of the UAPA.

The Bench added there was no material to suggest that the write-up published by Fahad provoked people to take to arms and resort to violence.

"The act was allegedly done eleven years back. From then till date, no evidence has been brought on record that the offending article was responsible for provoking persons to take to militancy.

Not a single witness says this. The other cases in which the appellant was arrested, he has been enlarged on bail in all of them. On facts also, the bar of the proviso to Section 43D (5) is not applicable in this case as the act of the appellant does not fulfil the requirements of Section 15 of the UAPA and therefore, the appellant cannot be tried for the offence under Section 18 of the UAPA," the Bench held.

Regarding the offence under Section 13 of the UAPA, the Bench opined that there was sufficient material to prima facie hold that Fahad could be tried for the offence as there was prima facie evidence on record to support that charge.

As regards the offence under Section 121 of the IPC, the Bench opined that the material on record did not not disclose the commission of the offence of waging war against the government of India.

As far as the offence under Section 153B of the IPC was concerned, the Bench ruled that the impugned write-up did not attempt to bring about disaffection on the basis of caste or religion.

Regarding the offences under the FCRA, the Bench held that there was sufficient material to take the prima facie view that Fahad had received remittances from overseas without intimating authorities about it.

On the power of the police under the UAPA, the Bench held that an investigating agency under the UAPA has unbridled authority to arrest or not to arrest under the provisions of the UAPA.

However, upon arrest, the investigating agency would have to justify the arrest on the anvil of "clear and present danger" of the accused to the society at large, if enlarged on bail.

"The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society.

"If the investigating agency does not satisfy this court and is unable to justify the arrest the same would result in the violation of the rights of the accused under Part III of the Constitution and the accused may be enlarged on bail," the Bench ruled.

Click here to read the order.