Upholds Special Court’s order rejecting bail as ‘lucid and well-reasoned’
Srinagar: The High Court of Jammu & Kashmir and Ladakh on Thursday denied bail to two sons of late Hurriyat leader Muhammad Ashraf Sehrai who were arrested under the Unlawful Activities (Prevention) Act (UAPA) for “raising anti-national slogans” during their father’s last rites.
A division bench of Justice Ali Mohammad Magrey and Justice Sanjay Dhar rejected the bail plea of Mujahid Ashraf Khan and Rashid Ashraf Khan, along with that of Altaf Hussain Khan, who together had challenged the judgment and order passed by Special Court on July 19, 2021, whereby application for grant of bail in FIR No.21/2021 for offences under Section 13, 18 and 38 ULA(P) registered at Police Station Sogam had been dismissed.
As per the police statement before the court, on May 6, 2021, when last rites of late Hurriyat leader Ashraf Sehrai were being performed at Village Tekipora Tulkhan within the jurisdiction of Police Station Sogam, some unknown persons raised anti-national slogans against the sovereignty and integrity of the nation and they also prepared a video of the said incident.
“During investigation of the case, involvement of the appellants in commission of offences under Section 13, 18 and 38 of ULA(P) Act was disclosed and they were taken into custody on May 16, 2021,” the police stated.
Senior counsel Z A Qureshi representing the appellants submitted before the court that there was no material on record before the Special Court to hold that an offence under Section 18 of the ULA(P) Act was made out against the appellants.
Qureshi contended that at the time when the Special Court granted extension in period of investigation and detention of appellants beyond 90 days, the appellants had already spent more than 90 days in custody and, as such, they were entitled to grant of default bail.
He further submitted that extension of period of investigation granted in terms of order passed on August, 14, 2021, by Special Court was not in accordance with law, “inasmuch as the application for extension of period of investigation has been made by the investigating officer and not by the Public Prosecutor and that there were no reasons, much-less cogent reasons, for granting the extension.”
He also submitted that the investigation of the case was complete as far back as 15 July, 2021, and, as such, the Special Judge while granting extension in period of investigation of the case was not possessed with sufficient reasons to do so.
The HC Bench after perusing the matter recorded that the requirement of laws, as was clear from a bare perusal of the language of sub-section (2) of Section 43-D of ULA(P) Act, was that the Court has to record a satisfaction on the basis of report of the Public Prosecutor indicating the progress of investigation and the reasons for detention of accused beyond the period of 90 days.
The court pointed out that as per appellant’s own documents, there was a report of the Public Prosecutor before the Special Court at the time of passing of order dated August, 14, 2021.
The bench further noted that it is not a case where the Special Court has granted extension in period of detention of appellants/accused merely on the basis of application made by the Investigating Officer but it is a case where Special Court has drawn its satisfaction from the report of the Public Prosecutor which was before it.
“Thus, the argument of senior counsel that the order dated August, 14, 2021 has been passed merely on the basis of the application of the Investigating Officer is belied by the material on record,” the High Court said.
The High Court further said that the perusal of the application for extension of period of investigation filed by the Investigating Officer does reveal that on its part the investigating agency had completed the investigation on 15 July, 2021, and “had submitted the case for obtaining sanction from the Government but it is also recorded in the application that the file was received back from the higher authorities with directions to rectify certain observations.”
The court further noted that the application for extension of investigation as well as the report of the Public Prosecutor indicate that there were certain more aspects of the matter which were required to be investigated.
The Bench recorded that Special judge has noted in his order passed on August, 14, 2021 that further time is required for culmination of investigation as the retrieved data of seized mobile phones from FSL and transaction details of account numbers of accused persons from Financial Intelligence Unit (FIU-IND) has not been received so far.
It was also noted in the said order that the report relating to transactions made with account number of Mujahid Ashraf Khan through NEFT-SBI Global Line Services and NEFT Western Unit Financial Services is also awaited.
“So, it is a case where the Special Judge has meticulously applied his mind to the report of the Public Prosecutor and thereafter recorded a satisfaction that extension in period of investigation and custody of the appellants is absolutely necessary,” the court recorded.
The bench said that the order passed by the Special Judge was lucid and well-reasoned.
Even otherwise, the court said, the appellants have not challenged the validity and legality of the order dated August, 14, 2021 passed by the Special Court whereby their custody has been extended beyond the period of 90 days.
“Therefore, it does not lie in their mouth at this stage to contend that their custody beyond 90 days is not in accordance with law,” the court said.
In fact, the court pointed out, it appeared that the appellants have not even urged the ground of default bail before the Special Court while seeking bail in their favour.