Jammu & Kashmir And Ladakh High Court Monthly Digest: September 2024

Kishore Kumar Vs Ishar Das 2024 LiveLaw (JKL) 250

Narayan Sharma @ Shuna through Mrs. Lata Sharma (Mother) Vs UT of J&K 2024 LiveLaw (JKL) 251

Showkat Ahmad Vs State of J&K 2024 LiveLaw (JKL) 252

Yashpal Sharma & Ors. Vs Rupali Sharma 2024 LiveLaw (JKL) 253

Raman Kumar Vs UT of J&K 2024 LiveLaw (JKL) 254

Sheikh Owais Tariq Vs Satvir Singh 2024 LiveLaw (JKL) 255

Bharat Bhushan Jolly and ors Vs State of J&K 2024 LiveLaw (JKL) 256

Rahees Hayat alias Ayaz Vs Union Territory of Jammu & Kashmir 2024 LiveLaw (JKL) 257

State through P/S Pulwama Vs Nazir Ahmad Rather 2024 LiveLaw (JKL) 258

Aqib Ahmad Renzu Vs UT of J&K 2024 LiveLaw (JKL) 259

Dr Tanveer Hussain Khan & Ors Vs Andleeba Rehman & Ors 2024 LiveLaw (JKL) 260

Talib Hussain @ Javied Vs UT of J&K 2024 LiveLaw (JKL) 261

Ashraf Ali @ Shiffu Vs Union Territory of Jammu and Kashmir 2024 LiveLaw (JKL) 262

Khursheed Ahmad Chohan VS UT of J&K 2024 LiveLaw (JKL) 263

Sh. Vijay Sharma Vs U.T of Jammu and Kashmir 2024 LiveLaw (JKL) 264

Shagufta Bano V/S UT of J&K 2024 LiveLaw (JKL) 265

Zaffar Abbas Din Vs Nasir Hamid Khan 2024 LiveLaw (JKL) 266

Satpal Sharma Vs State of J&K 2024 LiveLaw (JKL) 267

Anju Khan Vs UT Of J&K 2024 LiveLaw (JKL) 268

Kishan Tukaram Gavade Vs Union Of India 2024 LiveLaw (JKL) 269

Dr. Ashiq Hussain Factoo Vs State of J&K & Ors 2024 LiveLaw (JKL) 270

Himashu Gupta Vs Sohani Ram 2024 LiveLaw (JKL) 271

Judgments/Orders:

Wrong Description Of Property In Non-Mortgage Suits Not Grounds For Dismissal Under Order 7 Rule 11 CPC: J&K High Court Clarifies

Case Title: Kishore Kumar Vs Ishar Das

Citation: 2024 LiveLaw (JKL) 250

The High Court of Jammu and Kashmir and Ladakh clarified that under Order 7 Rule 11 of the Code of Civil Procedure (CPC), a suit cannot be dismissed merely due to the improper or incorrect description of immovable property, except in cases involving mortgage suits.

A bench of Justice Javed Iqbal Wani emphasized that this requirement is not mandatory in other suits, thereby offering crucial clarity on the interpretation of this provision.

Preventive Detention Can Be Ordered Irrespective Of Ongoing Or Concluded Criminal Proceedings: J&K High Court

Case Title: Narayan Sharma @ Shuna through Mrs. Lata Sharma (Mother) Vs UT of J&K

Citation : 2024 LiveLaw (JKL) 251

Upholding the validity of a preventive detention order the Jammu and Kashmir and Ladakh High Court reaffirmed that preventive detention can be ordered irrespective of ongoing or concluded criminal proceedings.

The court emphasized that such detention may occur “before, during, or after prosecution, with or without prosecution, and even after discharge or acquittal,” making it clear that preventive detention serves a distinct purpose from punitive measures in criminal law.

S.113A Evidence Act | Wife's Suicide Within Seven Years Of Marriage Doesn't Automatically Trigger Presumption Of Abetment Against Husband: J&K HC

Case Title: Showkat Ahmad Vs State of J&K

Citation: 2024 LiveLaw (JKL) 252

The High Court of Jammu and Kashmir and Ladakh held that the mere fact that a woman commits suicide within seven years of her marriage does not automatically invoke the presumption under Section 113-A of the Evidence Act. Section 113A of the Indian Evidence Act of 1872 deals with the presumption of suicide abetment by a husband or relative of a married woman.

[Defamation] Application Claiming Exception Of 'Good Faith Accusation' Cannot Be Dismissed At Threshold, Requires Trial To Examine: J&K HC

Case Title: Yashpal Sharma & Ors. Vs Rupali Sharma.

Citation: 2024 LiveLaw (JKL) 253

In a notable ruling, the Jammu and Kashmir and Ladakh High Court emphasized that the application of the Eighth Exception to Section 499 (Defamation) of the Ranbir Penal Code (RPC) (pari materia to Sec 499 of IPC) involves the determination of factual issues that cannot be assessed at the threshold stage by the trial court or in a petition seeking quashing.

Embargo On Bail In Death Or Life Imprisonment Cases Cannot Supersede Right To Speedy Trial: J&K High Court

Case Title: Raman Kumar Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 254

The Jammu & Kashmir and Ladakh High Court ruled that the embargo under the Code of Criminal Procedure for granting bail in cases punishable by death or life imprisonment cannot override the fundamental right to a speedy trial, as guaranteed under Article 21 of the Constitution of India.

Granting bail to one Raman Kumar, the petitioner, who had been incarcerated for over 13 years without his trial being concluded a bench of Justice Rajnesh Oswal observed,

“While considering the bar for grant of bail in offences punishable with death or life imprisonment, a proper balance is required to be maintained to ensure that the right of the accused to Speedy Trial is not violated”.

[S.138 NI Act] Complaint Is Maintainable Even If Cheque Is Dishonoured Due To 'Frozen Account': J&K High Court

Case Title: Sheikh Owais Tariq Vs Satvir Singh

Citation: 2024 LiveLaw (JKL) 255

The Jammu & Kashmir and Ladakh High Court held that a complaint under Section 138 of the Negotiable Instruments Act, 1881, is maintainable even if a cheque is dishonoured with the reason 'Account Frozen'.

Justice Rajnesh Oswal, hearing the matter, examined whether the complaint for dishonour of a cheque on the ground of 'Account Frozen' is maintainable under Section 138 of the Act.

CrPC | Test Of Sufficiency Of Proof Not Applicable At Stage Of Framing Of Charge And Discharge Of Accused: J&K High Court

Case Title: Bharat Bhushan Jolly and ors Vs State of J&K

Citation: 2024 LiveLaw (JKL) 256

The Jammu and Kashmir and Ladakh High Court reaffirmed that the stringent tests regarding the sufficiency of proof, which are usually applied at the final stage of a case, are not applicable during the framing of charges or discharge of an accused.

Habeas Corpus Petitions Can't Be Allowed To Become Infructuous Due To Pendency Outlasting Period Of Detention: J&K High Court

Case Title: Rahees Hayat alias Ayaz Vs Union Territory of Jammu & Kashmir

Citation: 2024 LiveLaw (JKL) 257

The Jammu & Kashmir and Ladakh High Court ruled that a habeas corpus writ petition cannot be dismissed solely because the period of preventive detention has expired during the pendency of the case. The court emphasized that allowing the petition to lapse on this ground would undermine the rule of law and suggest that personal liberty is restored merely by the passage of time, rather than through enforcing rights.

Presumptions Under NDPS Act Are Rebuttable Not Absolute, Prosecution Must First Establish Prima Facie Case: J&K High Court

Case Title: State through P/S Pulwama Vs Nazir Ahmad Rather

Citation: 2024 LiveLaw (JKL) 258

The Jammu and Kashmir and Ladakh High Court while upholding the acquittal of three individuals accused under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985 ruled that the presumptions under Sections 35 and 54 of the NDPS Act are rebuttable, not absolute.

The court emphasised that the prosecution must first establish a prima facie case against the accused before the burden shifts to the defense.

Bail In Criminal Cases No Justification For Preventive Detention: J&K High Court Quashes Detention Order Against Ex-SMC Corporator

Case Title: Aqib Ahmad Renzu Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 259

The Jammu & Kashmir and Ladakh High Court quashed the preventive detention order issued against former Srinagar Municipal Corporation (SMC) Corporator Aqib Ahmad Renzu.

The court held that the mere fact that Renzu had been granted bail in multiple criminal cases did not justify his detention under preventive law. The court further emphasized that preventive detention laws cannot be used as a substitute for handling cases under regular criminal law.

Proceedings U/S 12 DV Act Not Strictly Criminal In Nature, Bar Preventing Magistrates From Revoking Their Own Orders Is Not Applicable: J&K HC

Case Title: Dr Tanveer Hussain Khan & Ors Vs Andleeba Rehman & Ors.

Citation: 2024 LiveLaw (JKL) 260

The Jammu and Kashmir and Ladakh High Court clarified that proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) are not strictly criminal in nature. Consequently, the bar preventing Magistrates from revoking or cancelling their own orders is not applicable in these cases, it added.

Casualness By Authorities In Passing Detention Order Mocks Constitution: J&K High Court Quashes Detention Of Zee News Urdu Bureau Chief

Case Title: Talib Hussain @ Javied Vs UT of J&K Citation: 2024 LiveLaw (JKL) 261

The Jammu and Kashmir and Ladakh High Court quashed the preventive detention of Talib Hussain, Bureau Chief of Zee News Urdu, remarking that the "casualness and callousness" shown by the authorities in passing mechanical detention orders mocked the Constitution of India.

J&K High Court Pulls Up DM Over 'Illegal' Detention Order, Says Deprivation Of Liberty Was Treated As “Administrative Excursion”

Case Title: Ashraf Ali @ Shiffu Vs Union Territory of Jammu and Kashmir

Citation: 2024 LiveLaw (JKL) 262

The Jammu & Kashmir and Ladakh High Court strongly criticised the District Magistrate of Udhampur for issuing an unlawful preventive detention order under the Jammu & Kashmir Public Safety Act, 1978. The court found the detention order to be arbitrary and a violation of the petitioner's fundamental right to personal liberty under Article 21 of the Constitution.

Letters Patent Appeal Not Maintainable Against Single Judge Order In Article 226 Plea Which Has 'Trappings Of Criminal Case': J&K High Court

Case Title: Khursheed Ahmad Chohan VS UT of J&K

Citation: 2024 LiveLaw (JKL) 263

The Jammu & Kashmir and Ladakh High Court declared that a Letters Patent Appeal (LPA) is not maintainable against an order passed by a Single Judge in a petition under Article 226 of the Constitution, especially when the petition has the trappings of a criminal case.

Courts Cannot Review Threat Perception Assessments, Such Evaluation Falls Under Security Agencies' Domain: J&K High Court

Case Title: Sh. Vijay Sharma Vs U.T of Jammu and Kashmir

Citation: 2024 LiveLaw (JKL) 264

The Jammu & Kashmir and Ladakh High Court ruled that it has no mechanism to determine whether the threat perception of individuals or political figures has been properly assessed, emphasizing that such evaluations are strictly within the jurisdiction of security agencies.

Law Does Not Permit Discrimination Between Foreigner And Indian Nationals While Granting Bail: J&K High Court

Case Title: Shagufta Bano V/S UT of J&K Citation: 2024 LiveLaw (JKL) 265

The Jammu & Kashmir and Ladakh High Court reaffirmed that the law does not allow any discrimination between foreign nationals and Indian nationals regarding the granting of bail, emphasizing that bail must be considered based on the facts and circumstances of each case, and conditions may be imposed to ensure the accused is available for trial, but bail cannot be denied simply because the accused is a foreign national.

High Court Retains Original Civil Jurisdiction Despite Changes Introduced Post-2019 Re-Organisation Act: J&K High Court

Case Title: Zaffar Abbas Din Vs Nasir Hamid Khan

Citation: 2024 LiveLaw (JKL) 266

The Jammu and Kashmir and Ladakh High Court reaffirmed that despite the de-operationalization of the Constitution of Jammu and Kashmir, 1957, and the enactment of the Jammu and Kashmir Reorganization Act, 2019, the court retains both ordinary original civil jurisdiction and extraordinary original civil jurisdiction.

'Pollutes Stream Of Justice': J&K High Court Imposes 50K Cost On Petitioner For Suppressing Material Facts

Case Title: Satpal Sharma Vs State of J&K

Citation: 2024 LiveLaw (JKL) 267

The Jammu and Kashmir and Ladakh High Court remarked that "a litigant who attempts to pollute the stream of justice or touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." The court imposed a hefty cost of ₹50,000 on the petitioners for deliberately suppressing material facts in an attempt to obtain interim relief.

Inability By State's Police Machinery To Take Recourse Under Ordinary Criminal Law Not An Excuse To Invoke Preventive Detention: J&K High Court

Case Title: Anju Khan Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 268

Quashing the preventive detention of 25-year-old Anjun Khan, the Jammu and Kashmir and Ladakh High Court denounced the misuse of the Public Safety Act (PSA) as a means to bypass ordinary criminal law. The court has emphasised that the inability of the State's police machinery to resort to normal legal procedures could not justify invoking the draconian PSA.

No Interference In Punishment Unless It Shocks Conscience: J&K High Court Upholds Dismissal Of BSF Personnel For 2-Yr Unauthorized Absence

Case Title: Kishan Tukaram Gavade Vs Union Of India

Citation: 2024 LiveLaw (JKL) 269

Upholding the dismissal of a BSF constable for overstaying his leave by nearly two years the Jammu and Kashmir and Ladakh High Court reinforced the principle that, unless the punishment shocks the court's conscience, the proportionality of punishment should not be interfered with.

Reformative Theory Takes Back Seat In Heinous Terrorist Crimes: J&K High Court Dismisses Remission Plea Of Separatist Ashiq Hussain Factoo

Case Title: Dr. Ashiq Hussain Factoo Vs State of J&K & Ors

Citation: 2024 LiveLaw (JKL) 270

Dismissing the remission plea of Kashmiri separatist and Hizbul Mujahideen militant, Ashiq Hussain Factoo, the Jammu and Kashmir and Ladakh High Court ruled that heinous crimes like terrorism are a class apart and warrant a stricter approach.

The Division Bench, comprising Justices Sanjay Dhar and M.A. Chowdhary, declared that the reformative theory of punishment must yield in cases involving terrorist crimes, particularly in regions like Jammu and Kashmir, where militancy has been rampant for over three decades.

Proceedings U/S 145 CrPC Not A Substitute For Recovering Possession Of Property: J&K High Court

Case Title: Himashu Gupta Vs Sohani Ram

Citation: 2024 LiveLaw (JKL) 271

The Jammu and Kashmir and Ladakh High Court clarified that proceedings under Section 145 of the Criminal Procedure Code (CrPC) cannot be used as a means to recover possession of a property, when the dispute concerns the title of the property.