Srinagar: The High Court of Jammu and Kashmir and Ladakh has ruled that attending funerals of slain militants by people cannot be considered as an anti-national activity. "They cannot be deprived of personal freedom because it is guaranteed under Article 21 of the Constitution," a bench of Justices Ali Mohammad Magray and Mohammad Akram Chaudhary ruled.
The division bench passed the judgment while hearing two appeals filed by the government challenging the bail to two men including the cleric of a mosque in south Kashmir's Kulgam who were arrested for offering funerals in absentia of a Hizbul Mujahideen militant killed in an encounter with security forces in November 2021. The bail to the two men was granted by a special court in Anantnag earlier.
An FIR was registered under Section 13 of the Unlawful Activities (Prevention) Act at Police Station Devsar, Kulgam after the funeral prayers. The FIR said that after the news of the militant killing spread in the village, one Muhammad Yusuf Ganai "incited" the villagers to offer the slain's funeral in absentia. It was further alleged that Imam Javed Ahmad Shah of Masjid Sharif led the funeral prayer and during the funeral he "incited" the people to "continue the struggle till freedom".
While upholding the bail order granted by the trial court to the accused for performing funeral prayers in absentia of the slain militant, the division bench noted that no individual can be deprived of it, as his fundamental right to freedom is guaranteed under Article 21 of the Constitution of India. The counsel for the J&K administration argued that the court while deciding the bail applications did "not consider the fact that there was sufficient evidence to connect all including the respondent with the commission of the offence".
The government counsel further argued that Section 43D of the Unlawful Activities (Prevention) Act prohibits granting bail to accused persons when there are reasonable grounds to believe that the allegations against such persons are true. Rejecting the plea of the government, the division bench said that during the investigation of the case, no allegation has been proved against the accused, due to which they could be denied bail.
