“Offering of funeral prayers of a killed militant by the public at large, even at the instance of the respondents herein, who are stated to be elderly people of their village, cannot be construed to be an anti-national activity of that magnitude so as to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution of India,” a bench of Jammu Kashmir High court said in a ruling on Friday.
The Jammu Kashmir & Ladakh High Court ruled that offering of funeral prayers of a killed militant by the public at large cannot be construed to be anti-national activity of that magnitude to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution.
The High Court was hearing a challenge filed by Jammu Kashmir admin against the bail order granted by trial court in Anantnag in favour of a a few residents of Devsar, Kulgam including Imam of Masjid Sharief, Javid Ahmad Shah who was accused of offering funeral prayers in absentia of a slain militant.
The court noted that no individual can be deprived of his fundamental right of liberty guaranteed under Article 21 of Constitution of India, the court ordered
According to Live Law, A bench of Justices Ali Mohammd Magrey and MD Akram Chowdhary was hearing two appeals filed by the government challenging orders passed by Special Judge Anantnag (Designated Court for Unlawful Activities (Prevention) Act) on February, 11, 2022 and February, 26, 2022 wherein bail was granted in favour of the respondents in two separate applications.
The main ground raised by the appellants was that the court below while deciding the bail applications had not appreciated the fact that there was sufficient evidence connecting all the accused including respondents herein with the commission of offence. The Appellant also contended that the incriminating material in the case-diary explicitly establishes the case against the accused persons and their prima facie involvement with the commission of offences.
Counsel for the UT administration further argued that Section 43-D of UA(P) Act expresses bar on granting bail to the accused persons when there are reasonable grounds for believing that the accusations against such persons are prima facie true.
Pertinently an FIR was registered against ten people in November 2021 in P.S Devsar against ten locals for offering funeral prayers in absentia to a local militant who was killed during an encounter with the security forces.
In the FIR it was alleged that after the news of a slain militant spread in the village, a person, namely, Mohammad Yousuf Ganai “provoked” the villagers to perform “Gaibana Namazi-Jinaza” (funeral prayers in absentia) of the said killed militant.
It was further alleged that upon his “provoking” the Imam of Masjid Sharief, Javaid Ahmad Shah offered the Jinaza (funeral prayers) and during Jinaza the sentiments of the persons who were part of the said assembly got “incited” by urging them “to continue struggle till freedom.”