HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

(Through virtual mode)

CRM(M) No. 889/2025

Reserved on: 07.08.2026

Date of pronouncement: 17.09.2026

Date of uploading: 17.09.2026

Whether the operative part or full

judgment is pronounced? FULL

Dawood, age 21 years

S/o Ghulam Nabi Wani

R/o Kalamdanpora, Old Fateh Kadal,

Srinagar

…..Petitioner

Through: Mr. A. M. Dar, Sr. Advocate with

Mr. Harish Sharma, Advocate.

q

vs

Union Territory of Jammu & Kashmir

Through National Investigation Agency

Jammu/Srinagar

.…. Respondent

Through: Mr. Vishal Sharma, Sr. Advocate(DSGI)

with

Mr. Karan Sharma, CGSC.

Mr. Chandan Kumar Singh, PP, NIA.

Mr. Ashwani Verma, PP, NIA.

CORAM: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

JUDGMENT

01. Petitioner has invoked inherent jurisdiction of this Court, under Section

528 BNSS, for the quashment of order dated 23.08.2025, passed by learned

Additional Sessions Judge, Special Judge designated under NIA Act, Jammu

[“the trial Court”], whereby he came to be charged for offences under Sections

CRM(M) No. 889/2025 Page No. 2

13 and 20 of Unlawful Activities (Prevention) Act, 1967[“UA(P)A”] and 201

IPC.

PROSECUTION CASE

02. Before a closer look at the grounds urged in the memo of petition, it shall

be expedient to have an overview of background facts of the case.

2.1. As the prosecution story would unfurl, on 07.02.2024 Police Station

Shaheed Gunj, Srinagar at about 1900 hours, received a source information that

some unknown terrorists in furtherance of intention to revive militancy and

terrorise people of the area fired upon two non-locals with illegal weapons,

resulting in the on-spot death of a non-local and a critical injury to the other.

FIR No. 08/2024 for offences under Sections 302, 307 IPC, 7/27 of Arms Act

and Sections 15,16,20 of UA(P)A came to be registered.

2.2. The investigation revealed that The Resistance Front (TRF) and Laskhar-

e-Toiba (LeT) conspired to strike terror in the minds of the people of Jammu

and Kashmir by targeting the non-local community. It surfaced that in 2023,

accused Adil Manzoor Langoo (A-1) after reading a book on jihad namely

“Milestones” authored by one Ayoub Qutub and watching jihad videos on

YouTube became radicalised. He joined a group on Telegram App called

“Kashmir Fighters” whereby he came in contact with one Jahangir @ Peer

Sahab (A-4), the group admin and started sharing details with him through

Whatsapp and Messenger app.A-4 motivated A-1 to assist members of LeT and

TRF.

2.3. The investigation further revealed that on 04.01.2024, A-4 sent some

photographs of a location and instructed A-1 to collect a parcel, containing

CRM(M) No. 889/2025 Page No. 3

pistol and magazines, along with accused Arhan Rasool Dar (A-2), from Nund

Rishi Bund, Bemina. It revealed that A-1 and A-2 were friends and they were

working as salesmen in nearby shops. Both of them and accused Dawood (the

petitioner) were inspired by the aforesaid book “Milestones”, about Jihad.

2.4. As per the investigating agency, on the instructions of A-1, the petitioner

collected a polythene bag, which, after collecting the aforesaid parcel,

containing pistol and magazines, was thrown by A-1 near Nund Rishi Bund.

This bag, according to the investigating agency, came to be recovered on the

disclosure and at the instance of the petitioner. According to the investigating

agency, petitioner was highly radicalised and was in close contact with both A-

1 and A-2 through social media and on 07.02.2024, A-1 targeted non-locals on

the instructions of A-4 to terrorise people of Jammu and Kashmir.

2.5. After initial investigation, a SIT came to be constituted on 12.02.2024

and subsequently investigation of the case was taken over by NIA, pursuant to

order No. 11011/60/2019/NIA dated 14.06.2024, issued by the Government of

India, Ministry of Home Affairs. Accordingly, aforesaid FIR No. 08/2024 came

to be re-registered by NIA as RC-01/2024/NIA/JMU.

2.6. The investigating agency besides recording statements of material

witnesses under Sections 161 and 164 Cr. P. C, collected the digital data;

DVDRs, CDR, CAF, IPDR of the mobile phone numbers, which revealed the

involvement of proscribed terrorist organisations LeT and TRF. During

investigation, the injured namely Rohit Massi also succumbed to his injuries on

08.02.2024.

CRM(M) No. 889/2025 Page No. 4

2.7. The investigating agency recorded statements of material witnesses,

stated to be present at the scene of occurrence, who revealed that they saw a

man wearing blue coloured hoody (sweat shirt) following two persons just

before the incident. After sometime they heard gun shots. It was dark. They got

frightened but they saw the same person running away from the spot. When

they reached the spot, they found two men lying in a pool of blood. Pertinently,

one of the witnesses identified the said suspect during the Test Identification

Parade (TIP).

2.8. According to the investigating agency, during investigation A-1 admitted

that he had committed the occurrence with the assistance and conspiracy of A-2

and A-3, who were served upon notices under Section 41-A Cr. P. C. Both of

them in the preliminary questioning confirmed their affiliation with proscribed

terrorist organisations namely TRF and LeT and also revealed that they were

working as Over Ground Workers (OGWs) on the instructions of their handler

A-4.

2.9. It is contention of the investigating agency that the CDR/IPDR analysis

of phone numbers of the accused persons including that of the petitioner would

show that all of them were not only close friends but closely associated. They

conspired with their handler, A-4 and in furtherance of the conspiracy they

targeted non-locals to create terror among the masses of J&K, especially in the

minds of those who are non-residents of the State.

03. The investigation culminated in the presentation of charge sheet in the

trial Court for offences under Sections 302, 307 IPC, 7/27 of Arms Act and

Sections 15, 16, 20 of UA(P)A.

CRM(M) No. 889/2025 Page No. 5

ROLE ASCRIBED TO THE PETITIONER

04. Allegations against the petitioner are that he was a closed friend of A-1

and A-2. They used to share secrets. They were inclined towards terror

activities after going through the contents of the book “Milestones” which was

kept by the petitioner at his home. Petitioner was aware about the activities of

both A-1 and A-2 including collection of pistols and bullets by them on

04.01.2024 on the instructions of their handler, A-4. On the next day of the

occurrence, A-1 asked the petitioner to go to the spot and rule out any item left

behind by him while collecting the pistol and bullets. Accordingly, petitioner

went to the scene of occurrence. He filled a pit and also collected a polythene in

which pistols and bullets were wrapped at the time of its collection and thrown

by A-1 while leaving the spot. The petitioner collected the polythene and

dropped it in the nearby land which later came to be recovered on his disclosure

and at his instance.

4.1. Further allegation against the petitioner is that in the data recovered from

his mobile, some videos and pictures of him and A-1 came to be recovered and

in one of the videos he was found walking and on the wall behind him was

written ISJK (Islamic State of Jammu and Kashmir) and AGH (Ansar

Ghazwat-Ul-Hind), founded by Burhan Wani, an Al-Qaeda affiliated Islamist

militant group active in Kashmir, those are respectively mentioned at serial

Nos. 38 and 28 of the terrorist organisations listed in the First Schedule of

UA(P)A. It is alleged that petitioner is seen raising his hand towards the posters

on the wall, thereby promoting the ideology of the said organisations.

CRM(M) No. 889/2025 Page No. 6

4.2. It is also alleged that investigating agency during investigation recorded

statements of a protected witness, PW-48 who stated that all the accused

persons would come to the mosque to offer namaaz, they were motivated for

Jihad and they used to say “Kashmir Fateh Karenge”.

4.3. According to the investigating agency, there is sufficient oral,

documentary and scientific evidence available on the record to establish beyond

any reasonable doubt that all the accused persons including the petitioner

entered into a criminal conspiracy to wage war against the Government of India

and commit terror activities in the UT of Jammu and Kashmir.

TRIAL COURT VERDICT

05. Learned trial Court on hearing the rival contentions has come to

conclude that there was nothing in the record to show that petitioner was part of

conspiracy to kill non-locals. But he was a member of the gang with A-1 and

A-2 and his role came to the fore after killing of the non-locals i.e., to destroy

the evidence. Accordingly, petitioner came to be discharged by the trial Court

for offences under Sections 302, 120-B IPC and offences under Sections 16, 18

and 23 UA(P)A. However, he has been charged by the trial Court for offences

under Sections 13 and 20 UA(P)A and 201 IPC.

GROUNDS OF CHALLENGE

06. Petitioner is aggrieved of the impugned order, primarily on the ground

that he came to be charged by the trial Court for offences under Sections 13 and

20 UA(P)A, which was neither investigated nor charge sheeted by the

investigating agency. According to the petitioner, trial Court while charging the

CRM(M) No. 889/2025 Page No. 7

petitioner for the offences, which was not part of the charge sheet has

transgressed its powers.

6.1. It is contention of the petitioner that there is nothing in the charge sheet

to indicate that he was a member of any terrorist gang or organisation within

the meaning of Section 2(1)(m) or as per first schedule of UA(P)A. Therefore,

according to the petitioner, finding of the trial Court that he was part of a

terrorist organisation is perverse and a result of non-application of mind.

6.2. It is also contention of the petitioner, there is nothing in the charge sheet

to suggest that he ever participated in any ‘terrorist activity’ or he was seen at

the scene of occurrence at the time non-locals were targeted by co-accused.

Therefore, according to the petitioner, mere allegation of affiliation with a

terrorist gang or association would not attract the provisions of Section 20

UA(P)A.

6.3. It is next contended that since book namely “Milestones” alleged to have

been recovered from the house of the petitioner is not banned, therefore charge

against him for offence under Section 20 UA(P)A reflects total non-application

of mind on the part of learned trial Court.

6.4. According to the petitioner once Section 23 UA(P)A which relates to

terrorist organisations and terrorist gang and conspiracy is not established

against him, he cannot be charged for the related and interlinked offences under

Sections 13 and 20 UA(P)A.

6.5. Another ground urged by the petitioner is that he has been charged for

offence under Section 201 IPC in the absence of any material and the FSL

report.

CRM(M) No. 889/2025 Page No. 8

6.6. Petitioner has prayed for quashment of the impugned order.

RESPONDENT-NIA’s STAND

07. The plea has been resisted on the other side by the UT/NIA that there is

sufficient oral and documentary evidence against the petitioner to establish his

nexus with co-accused. Statement of a protected witness, recorded by the

investigating agency under Section 164 Cr. P. C., according to the respondent,

proves association of the petitioner and co-accused and their Jihadi bent of

mind.

7.1. It is contention of the respondent that trial Court while considering a plea

of charge/discharge and High Court exercising inherent jurisdiction are not

required to conduct a mini trial. Exercise of inherent jurisdiction by the High

Court is justified only when complaint does not disclose the commission of a

cognizable offence.

7.2. According to the respondent, learned trial Court charged the petitioner

for offences under Sections 13 and 20 UA(P)A, on the basis of incriminating

material available on the record.

7.3. Regarding destruction of evidence, it is contention of the NIA that the

polythene in which weapon of offence was delivered to A-1 and A-2 was

collected by the petitioner from the location of delivery. He filled the pit from

which A-1 had collected the weapon of offence and then took it to some other

place to destroy this crucial evidence. The said polythene, according to the

respondent came to be recovered on the disclosure and at the instance of the

CRM(M) No. 889/2025 Page No. 9

petitioner. The polythene was sent to CFSL for matching with the photo of

polythene sent by A-4 to A-1 and A-2 and the CFSL report is positive.

7.4. It is contention of the respondent that the book “Milestones” though not

banned, contains incriminating material to instigate one to commit Jihad. After

reading the said book, the petitioner and co-accused got radicalised.

7.5. It is contended that in the data recovered from the mobile of the

petitioner some videos and pictures of him and A-1 came to be recovered. In

one of the videos, petitioner was found in a scene walking and on the wall

behind him was written ISJK (Islamic State of Jammu and Kashmir) and AGH

(Ansar Ghazwat-Ul-Hind), an Al-Qaeda affiliated Islamist militant group active

in Kashmir, founded by Burhan Wani, respectively mentioned at serial Nos. 38

and 28 of the Terrorist Organisations listed in the First Schedule of UA(P)A.

Petitioner is seen raising his hand towards the posters on the wall, thereby

promoting the ideology of said organisations i.e., ISJK and AGH. As such,

according to the respondent, petitioner rightly came to be charged by the trial

Court for offence under Section 13 UA(P)A.

7.6. It is next contended that the investigating agency during investigation

recorded statement of a protected witnesses PW-48, who stated that all the

accused persons would come to the mosque to offer namaaz. They were

motivated for Jihad and they used to say “Kashmir Fateh Krenge”.

7.7. Defending the impugned order, it is contention of the NIA that there is

sufficient evidence against the petitioner in the form of oral statements under

Sections 161 and 164 Cr. P. C., documents i.e., reports of CFSL, Hyderabad

and FSL, Srinagar and material exhibits i.e., a polythene bag and book

CRM(M) No. 889/2025 Page No. 10

“Milestones” recovered on the disclosure of the petitioner, which are sufficient

to establish nexus of the petitioner with co-accused and his terrorist activities.

7.8. Respondent has prayed for dismissal of the petition.

08. Having heard learned counsels for the parties, I have gone through the

record.

CONCEPT OF CHARGE -DISCHARGE

09. Before venturing to scan through the spate of allegations against the

petitioner and the material assembled during the investigation in support of

such allegations, it shall be appropriate to understand the concept of framing of

charge/discharge of accused and the guidelines deducible from judicial

precedents in regard to evaluation of material for such purpose.

9.1. Hon’ble Supreme Court in Niranjan Singh Karam Singh v. Jatinder

Bhimaraj and other reported as AIR 1990 SC 1962 has held that Court while

considering whether to frame charges against an accused or discharge him is

required to evaluate the material and documents on record in order to find out

whether the facts emerging therefrom, taken at their face value would disclose

the existence of all the ingredients constituting the alleged offences or not. For

deciding whether there exists sufficient grounds for framing of charge, the

enquiry is limited to find out whether the facts emerging from the record and

the documents constitute the offence alleged against the accused. The Court

may, at this stage, sift the material for such limited purpose and marshalling of

evidence with a view to separate the grain from the chaff is not permissible.

9.2. In State of Bihar v. Romesh Singh reported in (1978) 1 SCR 257, the

Apex Court held that at the initial stage of framing of charge if there is strong

CRM(M) No. 889/2025 Page No. 11

suspicion arising from the material assembled during investigation that leads

the court to think that there is a ground for presuming that accused has

committed an offence, then it is not open to the Court to say that there is no

sufficient ground for proceeding against the accused. But if the evidence, which

the prosecutor proposes to adduce to prove the guilt of accused, even if fully

accepted before it is challenged by cross-examination or rebutted by the

defence, does not show that has accused committed the offence, then there will

be no ground for proceeding with the trial.

9.3. A similar view has been expressed by Supreme Court in Union of India

v. Prafulla Kumar and another reported in (1979) 2 SCR 229.

9.4. In Sajjan Kumar vs. CBI reported as(2010) 3 SCC (Cri) 1371 Hon’ble

Apex Court summed up the principles underlying framing of charge as follows:

“(i) The Judge while considering the question of framing the charges under

section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence

for the limited purposes of finding out whether or not a prima facie case

against the accused has been made out. The test to determine prima facie

case would depend upon the facts of each case.

(ii) Where the materials placed before the Court disclose grave suspicion

against the accused which has not been properly explained, the Court will be

fully justified in framing a charge and proceeding with the trial.

(iii) The Court cannot act merely as a post office or a mouthpiece of the

prosecution but has to consider whether the facts at their face value

disclosed the existence of all the ingredients constituting the alleged offence.

For this limited purpose, sift the evidence as it cannot be expected even at

that initial stage to accept all that the prosecution states as gospel truth even

if it is opposed to common sense or the broad probabilities of the case.

(iv) If two views are possible and one of them gives rise to suspicion only, as

distinguished from grave suspicion, the trial Judge will be empowered to

discharge the accused and at this stage, he isnot to see whether the trial will

end in conviction or acquittal.”

10. It is in the backdrop of these legal considerations that present case for

framing of charge against the petitioner has to be considered. The investigating

CRM(M) No. 889/2025 Page No. 12

agency, in the present case, on the basis of investigation, has minutely detailed

the individual role of each accused in the commission of the crime.

11. Petitioner is primarily aggrieved of the impugned order of the trial Court,

whereby he came to be discharged for offences under Sections 302, 120-B IPC

and Sections 16, 18, and 23 UA(P)A and charged for offences under Section

201 IPC and Sections 13 and 20 UA(P)A on the following grounds that;

(i) once Section 23 UA(P)A, which relates to “terrorist

organizations” and “terrorist gang” and “conspiracy” is not

found established against him, he could not be charged by

the trial Court for the co-related and inter-linked offences

under Sections 13 and 20 of the Act. His discharge for

offences under Sections 18, 16 and 23 UA(P)A is sufficient

to indicate that Sections 13 and 20 UA(P)A are not made out

against him; and

(ii) since the book namely “Milestones” alleged to have been

recovered from his house is not banned, charge against him

for offence under Section 20 UA(P)A was not attracted

because mere allegation or affiliation with a terrorist gang

or association would not attract the provisions of Section 20

UA(P)A.

RELEVANT PROVISIONS

12. Before we proceed to dilate upon the grounds urged in the memo of

petition, it shall be expedient to extract relevant provisions of UA(P)A, the

application of which shall be required to be examined having regard to the

facts and circumstances obtaining the present case:

“2. Definitions.— (1) In this Act, unless the context otherwise

requires,—

CRM(M) No. 889/2025 Page No. 13

XXXXXXXXXXX

(k) “terrorist act” has the meaning assigned to it in section 15, and

the expressions “terrorism” and “terrorist” shall be construed

accordingly;

XXXXXXXXXXX

(m) “terrorist organisation” means an organisation listed in the

[First Schedule] or an organisation operating under the same name

as an organisation so listed;

XXXXXXXXXXX

(o) “unlawful activity”, in relation to an individual or association,

means any action taken by such individual or association (whether

by committing an act or by words, either spoken or written, or by

signs or by visible representation or otherwise),-

(i) which is intended, or supports any claim, to bring about, on any

ground whatsoever, the cession of a part of the territory of India or

the secession of a part of the territory of India from the Union, or

which incites any individual or group of individuals to bring about

such cession or secession; or

(ii) which disclaims, questions, disrupts or is intended to disrupt the

sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against India;

13. Punishment for unlawful activities.—(1) Whoever—

(a) takes part in or commits, or

(b) advocates, abets, advises or incites the commission of, any unlawful

activity, shall be punishable with imprisonment for a term which

may extend to seven years, and shall also be liable to fine.

(2) Whoever, in any way, assists any unlawful activity of any

association declared unlawful under section 3, after the notification

by which it has been so declared has become effective under sub-

section (3) of that section, shall be punishable with imprisonment

for a term which may extend to five years, or with fine, or with

both.

(3) Nothing in this section shall apply to any treaty, agreement or

convention entered into between the Government of India and the

Government of any other country or to any negotiations therefor

carried on by any person authorised in this behalf by the

Government of India.

CRM(M) No. 889/2025 Page No. 14

15. Terrorist act.— (1) Whoever does any act with intent to

threaten or likely to threaten the unity, integrity, security, economic

security or sovereignty of India or with intent to strike terror or

likely to strike terror in the people or any section of the people in

India or in any foreign country,—

(a) by using bombs, dynamite or other explosive substances or

inflammable substances or firearms or other lethal weapons or

poisonous or noxious gases or other chemicals or by any other

substances (whether biological radioactive, nuclear or otherwise) of

a hazardous nature or by any other means of whatever nature to

cause or likely to cause—

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the

community in India or in any foreign country; or 17 | P a g e (iiia)

damage to, the monetary stability of India by way of production or

smuggling or circulation of high quality counterfeit Indian paper

currency, coin or of any other material; or

(iv) damage or destruction of any property in India or in a foreign

country used or intended to be used for the defence of India or in

connection with any other purposes of the Government of India,

any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal

force or attempts to do so or causes death of any public functionary

or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or

injure such person or does any other act in order to compel the

Government of India, any State Government or the Government of

a foreign country or [an international or inter- governmental

organisation or any other person to do or abstain from doing any

act; or] commits a terrorist act.

[Explanation.—For the purpose of this sub-section,—

(a) “public functionary” means the constitutional authorities or any

other functionary notified in the Official Gazette by the Central

Government as public functionary;

(b) “high quality counterfeit Indian currency” means the

counterfeit currency as may be declared after examination by an

authorised or notified forensic authority that such currency imitates

or compromises with the key security features as specified in the

Third Schedule.]

CRM(M) No. 889/2025 Page No. 15

(2) The terrorist act includes an act which constitutes an offence

within the scope of, and as defined in any of the treaties specified in

the Second Schedule.

16. Punishment for terrorist act.—(1) Whoever commits a terrorist

act shall,—

(a) if such act has resulted in the death of any person, be punishable

with death or imprisonment for life, and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term

which shall not be less than five years but which may extend to 18 |

P a g e imprisonment for life, and shall also be liable to fine.

18. Punishment for conspiracy, etc.—Whoever conspires or

attempts to commit, or advocates, abets, advises or incites, directs

or knowingly facilitates the commission of, a terrorist act or any act

preparatory to the commission of a terrorist act, shall be punishable

with imprisonment for a term which shall not be less than five years

but which may extend to imprisonment for life, and shall also be

liable to fine.

20.Punishment for being member of terrorist gang or

organisation.—Any person who is a member of a terrorist gang or a

terrorist organisation, which is involved in terrorist act, shall be

punishable with imprisonment for a term which may extend to

imprisonment for life, and shall also be liable to fine.

23. Enhanced penalties.—(1) ^{38}[If any person with intent to aid

any terrorist or a terrorist organisation or a terrorist gang

contravenes] any provision of, or any rule made under the

Explosives Act, 1884 or the Explosive Substances Act, 1908 or the

Inflammable Substances Act, 1952 or the Arms Act, 1959, or is in

unauthorised possession of any bomb, dynamite or hazardous

explosive substance or other lethal weapon or substance capable of

mass destruction or biological or ^{39}[chemical substance of

warfare or high quality counterfeit Indian currency, he shall],

notwithstanding anything contained in any of the aforesaid Acts or

the rules made thereunder, be punishable with imprisonment for a

term which shall not be less than five years but which may extend to

imprisonment for life, and shall also be liable to fine.

(2) ^{40}[Any person who with the intent to aid any terrorist, or a

terrorist organisation or a terrorist gang], attempts to contravene

or abets, or does any act preparatory to contravention of any

provision of any law or rule specified in sub-section (1), shall be

deemed to have contravened that provision under sub-section (1)

and the provisions of that sub-section in relation to such person,

have effect subject to the modification that the reference to

"imprisonment for life" therein shall be construed as a reference to

"imprisonment for ten years.”

CRM(M) No. 889/2025 Page No. 16

RIVAL CONTENTIONS, ANALYSIS AND FINDINGS

13. Mr. Dar, learned senior counsel appearing for the petitioner, at the

foremost, has assailed the impugned order, whereby petitioner came to be

charged for offence under Section 20 UA(P)A. Mr. Dar has vehemently argued

that there is nothing in the charge-sheet to suggest that petitioner was a member

of a terrorist gang or association within the meaning of Section 2(1)(m) of

UA(P)A or as per the first schedule of the Act, or that he was seen at the scene

of occurrence at the time when non-locals were targeted by co-accused.

According to Mr. Dar, mere affiliation or association with a terrorist gang, or a

terrorist organization, in the absence of any incriminating material, would not

attract the provisions of Section 20 UA(P)A.

LEGAL POSITION OF SECTION 20 UA(P)A

14. The controversy with respect to the application of Section 20 UA(P)A,

for testing as to who would be a member of a terrorist gang or a terrorist

organization came to be set at naught by Hon’ble Supreme Court in Vernon vs.

State of Maharashtra and Anr.; (2023) 15 SCC 56, whereby the

interpretation given to Section 20 of the Act by Bombay High Court in Dr.

Anand Teltumbde vs. National Investigation Agency; 2022 SCC Online

Bom 5174 came to be approved.

14.1. It was held by the Bombay High Court in Dr. Anand Teltumbde that

Section 20 cannot be interpreted to mean that merely being a member of a

terrorist gang would entail such a member liable for punishment. Court is

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required to analyse the material to show that such a person was involved in or

has indulged in a terrorist act within the meaning of Section 15 of the Act.

14.2. Relevant excerpt of Vernon (supra), for the ease of reference is extracted

below:

“30.So far as application of Section 20 of the 1967 Act is concerned,

the Bombay High Court in the case of Dr. Anand Teltumbde (supra)

construed the said provision in the following manner:-

“52.Section 20 cannot be interpreted to mean that merely being

a member of a terrorist gang would entail such a member or the

above punishment. What is important is the terrorist act and

what is required for the Court to see is the material before the

Court to show that such a person has been involved in or has

indulged in a terrorist act. Terrorist act is very widely defined

under Section15.In the present case, seizure of the incriminating

material was alluded to hereinabove does not in any manner

prima facie leads to draw an inference that, Appellant has

committed or indulged in a ‘terrorist act’ as contemplated under

Section 15 of the UAP Act.”

31. This judgment has not been interfered with by this Court and we

also affirm this interpretation given to Section 20 of the 1967 Act for

testing as to who would be a member of terrorist gang or terrorist

organisation. Moreover, no material has been demonstrated by the

NIA before us that the appellants are members of the terrorist

organisation. AF’s involvement with IAPL as a frontal organisation

of the Communist Party of India (Maoist) is sought to be established,

and that has been referred to in the chargesheet as well. But the link

between IAPL and the CPI (Maoist) has not been clearly

demonstrated through any material. Reference to AF and VG as

members of the CPI (Maoist) appears from the statement of protected

witness, but that link is made in relation to events between the years

2002-2007, before the organisation was included in the First Schedule

to the 1967 Act. No evidence of continued membership after the party

was classified as a terrorist organisation has been brought to our

notice. Nor is there any reliable evidence to link IAPL with CPI

(Maoist) as its frontal organisation. We have already dealt with the

position of the appellants vis-à-vis terrorist acts in earlier paragraphs

of this judgment and we prima facie do not think that Section 20 can

be made applicable against the appellants at this stage of the

proceeding, on the basis of available materials.”

CRM(M) No. 889/2025 Page No. 18

14.3. It is evident from a plain reading of the afore-quoted excerpt that a

“terrorist act” as defined under Section 2(1)(k) UA(P)A is to be construed

having regard to the meaning assigned to it in Section 15 of the Act and to

invoke Section 20 of the Act, prosecution is obliged to prove that accused was

a member of a terrorist gang or an organization that carries on or indulges in

terrorist acts as defined in Section 15 of the Act.

15. If the present case is approached with the aforesaid interpretation

accorded to Section 20 by the Bombay High Court and approved by the Apex

Court, there is nothing in the record to suggest that petitioner has committed or

indulged in a “terrorist act” as defined under Section 2(k) UA(P)A, which

carries the meaning assigned to it in Section 15 of the Act because no covert or

overt terrorist act has been attributed to him.

15.1. Having regard to the aforesaid, there is total absence of ingredients

necessary to constitute offence under Section 20 UA(P)A. Standard legal

thresholds are not met. Consequently, the impugned order, whereby petitioner

came to be charged for offence under Section 20 UA(P)A being legally flawed

is required to be set aside.

16. Mr. Dar, learned senior counsel appearing for the petitioner has next

questioned the impugned order on the ground that charge under Section 13

UA(P)A is not only bad for want of requisite sanction under Sub-Section 2 of

Section 45 of the Act but discharge of the petitioner for offences under sections

18, 16 and 23 of the Act is sufficient to indicate that offence under Section 13

of the Act is not made out. He has relied upon Mahesh Kariman Tirki and

Ors. vs. State of Maharashtra(Criminal Appeal Nos. 136&137 of 2017

CRM(M) No. 889/2025 Page No. 19

decided by High Court of judicature at Bombay on 05.03.2024) and Rambhai

Nathabhai Gadhvi and Ors. vs. State of Gujarat; AIR 1997 SC 3475.

SECTION 13 UA(P)A and SANCTION U/S 45 of the Act

17. I shall first take up first limb of Mr. Dar’s submission that charge under

Section 13 UA(P)A against the petitioner is bad for want of sanction under

Section 45(2) of the Act.

Section 45 for the facility of reference is extracted below:

“45. Cognizance of offences.— ⁷¹[(1)] No court shall take cognizance

of any offence—

(i) under Chapter III without the previous sanction of the Central

Government or any officer authorised by the Central Government

in this behalf;

(ii) under Chapters IV and VI without the previous sanction of the

Central Government or, as the case may be, the State Government,

and ⁷²[if] such offence is committed against the Government of a

foreign country without the previous sanction of the Central

Government.

⁷³[(2) Sanction for prosecution under sub-section (1) shall be given

within such time as may be prescribed only after considering the

report of such authority appointed by the Central Government or,

as the case may be, the State Government which shall make an

independent review of the evidence gathered in the course of

investigation and make a recommendation, within such time as may

be prescribed, to the Central Government or, as the case may be,

the State Government.]”

17.1. There is no dispute to the statutory position. Sub-Section 1 of Section 45

UA(P)A bars the Court from taking cognizance of any offence under Chapter-

III without previous sanction of the central government or any officer

authorized by the central government in this behalf. Under sub-Section 2 such

sanction for prosecution under Sub-Section 1 can be given only after

considering the report of such authority appointed by the government which

CRM(M) No. 889/2025 Page No. 20

makes an independent review of the evidence gathered in the course of

investigation and make a recommendation to the government.

17.2. There can be no exception to the observation of Bombay High Court in

Mahesh Kariman Tirki that statute provides twin safeguards against the

misuse of stringent law of UA(P)A as it has engrafted an additional filter of

review by an independent authority before granting conventional executive

sanction.

17.3. The High Court in the said case, in the light of the statutory requirement,

pertinently after the trial, when examined the report (Exh. 358) of the Director

of Prosecution, found that said report only indicates in cryptic manner as to

what the authority had perused and there was nothing more than a mere green

signal and there was no independent opinion of the independent authority. High

Court also examined cross-examination of the prosecution witness, who

accorded sanction and noticed that entire papers were not placed before the

sanctioning authority and sanction was accorded without any application of

mind.

17.4. The fact situation of the case on hand is clearly distinguishable from that

of Mahesh Kariman Tirki, in that the High Court in the said case had had an

occasion to examine the prosecution evidence recorded during the trial, which

is not the case here. This Court while exercising inherent jurisdiction, to

consider a plea of charge/discharge does not have the power to conduct a mini

trial. The enquiry, in such cases, as stated is limited to evaluate the material

assembled during investigation to find out whether the facts emerging

CRM(M) No. 889/2025 Page No. 21

therefrom, taken at their face value, would disclose the existence of all the

ingredients constituting the offences or not.

17.5. In the present case, a perusal of the sanction order would transpire that

the Central Government in terms of the provisions of Section 45(2) UA(P)A

submitted the investigation report of the case along with list of documents

collected and witnesses examined during the course of investigation to the

authority comprising of two members for making an independent review of the

evidence gathered in the course of examination and the authority after being

satisfied with the material available on record and facts and circumstances

therein, recommended for sanction for prosecution of the petitioner. The

Central Government thereafter, after carefully examining the entire material

placed on record and the recommendations of the authority, being satisfied that

a prima facie case was made out against the accused persons under the relevant

sections of law, accorded sanction for prosecution of the petitioner-Dawood

under Sections 16, 18, 20 and 23 UA(P)A.

ADDITION/ALTERATION OF CHARGE AFTER THE SANCTION

18. Mr. Dar is of the view that since the sanctioning authority has accorded

sanction for the prosecution of the petitioner for offences under Sections 16, 18,

20 and 23 of the Act and not for offence under Section 13, the impugned order,

whereby charge came to be altered and petitioner came to be charged for

offence under Section 13 of the Act is bad for want of sanction and required to

be set aside.

CRM(M) No. 889/2025 Page No. 22

18.1. Mr. Vishal Sharma, learned senior counsel, representing the respondent-

NIA has relied upon Ashok Kr. Todi vs. C.B.I. and connected matters;

reported as 2017 SCC Online Cal 7067 to submit that if sanction is granted by

the sanctioning authority for the prosecution of an accused, court has the power

to add or alter the charge in respect of a specific offence provided it is based on

the same facts and no fresh sanction is required for the addition or alteration of

charge in terms of Section 239 BNSS, corresponding to Section 216(5) Cr.P.C.

18.2. Section 239(5) BNSS reads as below:

“If the offence stated in the altered or added charge is one for the

prosecution of which previous sanction is necessary, the case shall not

be proceeded with until such sanction is obtained, unless sanction has

been already obtained for a prosecution on the same facts as those on

which the altered or added charge is founded”.

(Emphasis Supplied)

18.3. If sub-Section 5 of Section 239 BNSS is carefully glanced over, it is

manifest that if the offence stated in the altered or added charge is the one for

the prosecution of which previous sanction has already been obtained on the

same facts on which the altered or additional charge is founded, no fresh

sanction is necessary for the addition or alteration of the charge.

18.4. Calcutta High Court in Ashok Kr. Todi has observed that sanction

confers a jurisdiction on the Court to trial and Court can proceed with the

altered or added charge without fresh sanction, provided it is founded on the

same facts those were already considered by the sanctioning authority.

18.5. It is trite in law that each and every Section of the penal law is not

required to be mentioned by the sanctioning authority in the sanction order. It is

facts of the case those must be clearly referred. Hon’ble Supreme Court in

CRM(M) No. 889/2025 Page No. 23

Parkash Singh Badal and Anr. vs. State of Punjab and Ors.; 2007 (1) RCR

(Criminal) 1 has clearly ruled that sanction order need not specify each of the

offences for which the accused is to be prosecuted and that what is required is

application of mind and prima facie satisfaction that accused has committed the

wrong. The relevant extract reads as under:

“68. The sanctioning authority is not required to separately specify

each of the offences against the accused public servant. This is

required to be done at the stage of framing of charge. Law requires

that before the sanctioning authority materials must be placed so that

the sanctioning authority can apply his mind and take a decision.

Whether there is an application of mind or not would depend on the

facts and circumstances of each case and there cannot be any

generalised guidelines in that regard.”

18.6. In the present case, since the independent authority after examining the

investigation report of the case along with list of documents and the witnesses

examined during the course of investigation recommended for the statutory

sanction of the accused persons and the sanctioning authority after being

satisfied with the material available on record and the facts and circumstances,

therein has recommended for sanction for the prosecution of the accused

persons, including the petitioner, no fresh sanction for the prosecution of the

petitioner for offence under Section 13 UA(P)A was required on the same set

of facts and circumstances, those were considered by the independent authority

and the sanctioning authority.

18.7. Viewed thus, contention of the petitioner that charge against him for

offence under Section 13 UA(P)A is bad for want of sanction is not tenable.

19. Second limb of Mr. Dar’s submission, insofar as Section 13 UA(P)A is

concerned, is that after petitioner came to be discharged for offences under

CRM(M) No. 889/2025 Page No. 24

Sections 18, 16 and 23 of the Act, he could not be charged by the trial Court for

the offence, which was neither investigated nor charge sheeted by the

investigating agency, i.e., offence under Section 13 of the Act.

CHARGE IS A JUDICIAL FUNCTION

19.1. The argument of learned senior counsel is legally flawed for the simple

reason that final report or the charge sheet submitted by the police under

Section 173 Cr. P. C, now Section 193 BNSS, is a collective opinion of the

investigating agency and the conclusion drawn is merely an executive function.

Framing of charge is the judicial function and it is the judicial authority alone

who holds the final power to decide whether to accept, reject or modify the

conclusions of the investigating agency based on its own independent

application of mind. Courts cannot act as a rubber stamp or mouthpiece of the

police or the prosecution. It must evaluate the facts on its own merits.

19.2. Supreme Court of India has consistently maintained distinct boundaries

between the police investigation and judicial evaluation during framing of the

charge. When a case reaches the stage of framing of charge, the Court,

irrespective of the conclusion of the investigating officer, has four primary

course available to it; (i) court may accept the conclusion of the investigating

officer in toto; (ii) court may add, delete or alter the Sections of law proposed

by the IO, provided the raw evidence i.e., witnesses statements, documents,

scientific evidence, etc. points to a different offence; (iii) court may discharge

the accused, if it finds “no sufficient ground for proceeding” or a lack of strong

suspicion, even if IO concludes that accused committed a crime and files

CRM(M) No. 889/2025 Page No. 25

charge sheet; (iv) in case, the IO concludes that no crime was committed and

files the closure report, Court is not bound to drop the matter. It may reject the

closure report and independently summon the accused to face the trial provided

the material on record reflects a prima facie case.

19.3. In view of the above, under the criminal procedural law, such as Section

216 Cr. P. C., corresponding to Section 239 BNSS, Court has the absolute

authority to add, modify or frame charges for different or additional offences

than those recommended by the police, provided the material assembled during

investigation supports the same. The police opinion in the charge sheet about

which Sections apply is merely advisory or recommendatory in nature. Court

independently looks at the actual facts and ingredients of the offences revealed

by the case diary and documents.

19.4. Reverting back to the case, allegations against the petitioner is that on the

instructions of A-1, he collected an envelope thrown by A-1 near Nund Rishi

Bund, Bemina after collecting the weapon which was wrapped in the said

envelope. This envelope came to be recovered by the investigating agency on

the disclosure of the petitioner. Petitioner is also alleged to be a close friend of

A-1 and A-2. They used to share secrets. They were inclined towards terror

activities after going through the contents of a book namely “Milestone”, which

also came to be recovered at his instance from his residence. It is also alleged

that petitioner was aware about the activities of both A-1 and A-2, including the

collection of pistols and bullet by them on 04.01.2024, which was used in the

killing of non-locals at the instance of their handler A-4. Petitioner on the next

day of the killing was asked by A-1 to go to the spot and rule out the trace of

CRM(M) No. 889/2025 Page No. 26

any item left behind by him while collecting the pistols and bullets. Petitioner

went to the scene of occurrence, filled the pit and collected a polythene, in

which pistols and bullet were wrapped at the time of its collection.

19.5. Pertinently, during investigation, the investigating agency besides

recording statements of material witnesses, collected the digital data; DVDRs,

CDR, CAF and IPDR of the relevant mobile phone numbers and when Mobile

data of the petitioner was analyzed, it was found to contain a video of the

petitioner where he was seen posing before a banner of Ansar Ghazwat-Ul-

Hind, stated to be an Al-Qaeda affiliated Islamist militant group and ISJK,

respectively appearing at serial Nos. 28 and 38 of the terrorist organisations

listed in the first schedule of UA(P)A. The polythene alleged to have been

recovered on the disclosure of the petitioner, was sent to CFSL for matching

with the photo of the polythene, sent by A-4 to A-1 and A-2 and CFSL report is

positive. In the data alleged to have been recovered from the mobile of the

petitioner, some videos and pictures of him and A-1 also came to be recovered.

In one such video, petitioner was found in a scene walking and on the wall

behind him was written ISJK and AGH founded by Burhan Wani and petitioner

is seen raising his hand towards the posters on the wall, thereby promoting the

ideology of the banned organizations. The investigating agency during

investigation also recorded statement of a protected witness PW-48, who stated

that all the accused persons including the petitioner would come to the mosque

to offer Namaaz and they used to say “Kashmir Fateh Krenge”. Therefore, facts

and circumstances of Vernon (supra) are distinguishable from the facts and

circumstances obtaining the present case because in this case, in addition to the

CRM(M) No. 889/2025 Page No. 27

recovery of book namely “Milestone” on Jihad, the investigating agency has

made recovery of incriminating materials on the disclosure of the petitioner.

Petitioner is also seen in one of the videos propagating the ideology of a

militant organisations and there is statement of the protected witness in support

of the allegations.

19.6. No doubt, it has been consistent view of the Courts that possession of a

literature alone that propagates a particular religious philosophy, would not

constitute a crime unless there is concrete evidence of its intent or execution

and unless the investigating agencies can produce the material evidence that

said philosophy was actively being executed to commit terrorist acts. Supreme

Court in Vernon Gonsalves (supra), known as Bhima Koregaon case also

held that mere possession of literature which inspires or propagates violence by

itself does not amount to a terrorist act or other serious offences under Chapter-

IV or Chapter-VI of UA(P)A.

19.7. While owning a book is generally protected, its material can be used as

evidence to support charges, if prosecution succeeds to establish specific links

that book is used to advocate, abet, incite or plan an unlawful or terrorist act or

it is used to recruit or raise funds for a banned terrorist organisation or intended

to further the violent activities of a terrorist gang. Therefore, while passive

possession of an unbanned material may not trigger UA(P)A charges, however,

actively sharing inflammatory propaganda online, operating social media

toolkits for radicalisation or recruiting others to further the ideology of a

banned organisation would certainly attract the charges.

CRM(M) No. 889/2025 Page No. 28

19.8. Definition of unlawful activity, (Section 2(1)(o) UAPA), has been quoted

in earlier part of this judgment, which means any action taken by an individual

or association (whether by committing an act or by words, either spoken or

written or by signs or by visible representation or otherwise), intended or

supporting any claim to bring about on any ground whatsoever the cession of a

part of the territory of India or the secession of a part of the territory of India

from the Union, or which incites any individual or group of individuals to bring

about cession or secession. In other words, Section 13 of the Act is required to

be construed and understood within the meaning assigned to it by Section

2(1)(o) of UA(P)A.

19.9. Coming back, it is not only a case of passive possession of the book

namely “Milestone”, containing jihad material, which is alleged to have been

recovered from the house of the petitioner, but as discussed, in the data

recovered from the mobile of the petitioner, some videos and pictures of him

and A-1 were also recovered by the investigating agency and as stated, in one

of the videos he was found in a scene walking and on the wall behind him was

written ISJK, a terrorist organisation figuring at serial No. 38 of the first

schedule and Ansar Ghazwat-Ul-Hind, an Al-Qaeda affiliated Islamist militant

group active in Kashmir which is mentioned at serial No. 28 of the first

schedule of UA(P)A. Not only this, petitioner is seen raising his hand towards

the posters on the wall to promote the ideology of the said organizations. That

aside, a polythene bag came to be recovered on his disclosure, in which pistols

and bullets were wrapped at the time of its collection by A-1 and A-2 and there

is statement of protected witness PW-48, who has stated that all the accused

CRM(M) No. 889/2025 Page No. 29

persons including the petitioner would come to the mosque to offer Namaaz

and say “Kashmir Fateh Krenge”.

19.10. If the role ascribed to the petitioner is approached within the meaning

of Section 2(1)(o) UA(P)A, this Court finds sufficient material including

statement of the protected witness and the scientific evidence to disclose a

prima facie case against the petitioner that he has committed, advocated and

incited the commission of unlawful activities by signs and visible

representation, which is intended to bring about the cession of a part of the

territory of India from the Union, punishable under Section 13 of the Act.

Therefore, there is no illegality or infirmity in the lower Court’s order framing

charge against the petitioner under Section 13 UA(P)A.

OFFENCE UNDER SECTION 201 IPC

20. Petitioner has also been charged by the trial Court for destruction of

evidence, under Section 201 IPC.

20.1. According to the respondent/NIA, the petitioner on the instructions of A-

1 collected a polythene bag, which after collecting the parcel containing pistol

and magazines, was thrown by A-1 near Nund Rishi Bund. The petitioner, as

per the investigating agency, filled the pit from which A-1 had collected the

weapon of offence, took it to some other place to destroy this crucial piece of

evidence.

21. Mr. Dar, learned senior counsel for the petitioner has argued that

petitioner has been charged for offence under Section 201 IPC in the absence of

any material or scientific evidence.

CRM(M) No. 889/2025 Page No. 30

22. A perusal of the charge sheet reveals that polythene bag sent by the

investigating agency to CFSL for matching with the photo of the polythene

which was sent by A-4 to A-1 and A-2 and the FSL report in this respect is

positive. Therefore, this Court also finds sufficient evidence on record to

disclose prima facie offence under Section 201 IPC against the petitioner.

ORDER

23. For what has been observed, analysed and discussed above, present

petition is allowed in part. As a result, the impugned order to the extent of

framing of charge against the petitioner under Section 20 UA(P)A is set aside.

However, the impugned order concerning charge against the petitioner for

offences under Sections 13 UA(P)A and 201 IPC is upheld.

24. Learned trial Court is directed to regulate its procedure and proceed with

the trial, in accordance with law.

25. Before parting, it is made clear that nothing observed in the present order

shall be construed as an expression of opinion on the merits of the case and

learned trial Court shall be at liberty to proceed with the trial uninfluenced by

any observation made in this order.

26. Disposed of.

(Rajesh Sekhri)

Judge

Srinagar

17.09.2026

Sushant

Whether the judgment is speaking? Yes

Whether the judgment is reportable? Yes