Past Conduct Cannot Justify Continued Incarceration: J&K&L High Court Grants Bail To Alleged Ex-Hizbul Mujahideen Militant

In a reaffirmation of personal liberty and the constitutional guarantee of a speedy trial, the High Court of Jammu & Kashmir and Ladakh has held that past conduct, for which an accused has already faced prosecution and detention, cannot by itself justify continued incarceration in the absence of credible and proximate evidence linking him to the present offence.The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar delivered this ruling while allowing a bail appeal and setting aside the order of the NIA Court, Jammu, which had earlier rejected the appellant's bail application. Admitting him on bail the bench remarked, “.. The past conduct of the appellant, for which he has already faced prosecution and detention, cannot by itself justify continued incarceration in the absence of credible and proximate evidence connecting him to the alleged offences in the present FIR”Background: The case traced its origin to an FIR of the year 2010 registered initially under Sections 420, 406 and 109 of the Ranbir Penal Code. The FIR stemmed from an enquiry alleging misuse of a SIM card for making extortion calls to contractors and influential persons in District Doda. Over a decade later, in 2022, the investigation culminated in the filing of a charge-sheet invoking stringent provisions of the Unlawful Activities (Prevention) Act, 1967, including Sections 13, 18, 18-B, 20 and 38.The appellant, Abdul Rashid, a surrendered former militant, had already faced multiple prosecutions and preventive detention under the Public Safety Act, all of which had either resulted in acquittal or did not survive judicial scrutiny. Despite this, he was arrested in 2022 and remained in custody since then, prompting him to challenge the rejection of bail by the Trial Court.Appearing for the appellant, Mr. I.H. Bhat, Advocate, contended that the prosecution case was riddled with unexplained delays and glaring inconsistencies. It was argued that although the FIR pertained to the year 2010, the charge-sheet was filed only in 2022, without any fresh or legally admissible evidence.Opposing the appeal, Mrs. Monika Kohli, Senior Additional Advocate General, appearing for the Union Territory, maintained that the appellant was a former District Commander of the proscribed Hizbul Mujahideen and had actively facilitated terrorist activities. The prosecution relied heavily on the statements of protected witnesses, examined years later, who claimed to have received extortion calls from an active militant.Court's Analysis and Observations:After an exhaustive consideration of rival submissions, the High Court found several disturbing aspects in the prosecution case. The Bench noted that although the appellant was allegedly active as a militant in 2010, the FIR was not initially registered under the UAPA, raising serious doubts about the belated invocation of terror charges after more than a decade.“If the allegations were indeed of extortion for furtherance of terrorist activities, the absence of contemporaneous material and the delayed application of UAPA provisions casts a serious shadow on the genuineness of the prosecution case,” the Court observed.The Bench also took note of the fact that one of the Investigating Officers had initially opined that no case was made out against the appellant. The revival of the investigation after several years, without any fresh or cogent material, was held to be a factor that significantly weakened the prosecution narrative.Another crucial aspect highlighted by the Court was the delayed testimony of key protected witnesses.“The unexplained dormancy of material witnesses for nearly a decade, particularly in cases involving grave allegations, materially impacts the prima facie satisfaction required under Section 43-D(5) of the UAPA,” the Bench noted.Equally significant was the absence of any recovery of the alleged SIM card or mobile phone, which formed the very foundation of the prosecution case.While acknowledging the stringent standard laid down by the Supreme Court in NIA v. Zahoor Ahmad Shah Watali, the High Court reiterated that constitutional courts are not powerless in cases of prolonged incarceration. Relying on Union of India v. K.A. Najeeb and subsequent precedents, the Bench emphasized that statutory restrictions must be harmonized with the fundamental right to life and liberty.“The past conduct of the appellant, for which he has already faced prosecution and detention, cannot by itself justify continued incarceration in the absence of credible and proximate evidence connecting him to the alleged offences in the present FIR,” the Court categorically held.The Court further observed that there was nothing on record to show any involvement of the appellant in terrorist or unlawful activities after his surrender in 2010.Concluding that the prosecution had failed to demonstrate reasonable grounds for believing that the accusations against the appellant were prima facie true, the High Court allowed...

Past Conduct Cannot Justify Continued Incarceration: J&K&L High Court Grants Bail To Alleged Ex-Hizbul Mujahideen Militant

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