Jammu & Kashmir And Ladakh High Court Weekly Roundup [April 17 - April 23, 2023]

Nominal Index:

Gull Mohammad Bhat Vs Raj Kumar Goyal and others 2023 LiveLaw (JKL) 87

Jamal Din & Ors Vs New India Assurance 2023 LiveLaw (JKL) 88

Mohammad Ashraf Wani Vs Muzamil Bashir 2023 LiveLaw (JKL) 89

Ghulam Nabi Turrey Vs Farooq Ahmad Thokar and Another 2023 LiveLaw (JKL) 90

Peerzada Shah Fahad Vs UT of J&K 2023 LiveLaw (JKL) 91

Janbaz Ahmad Dass Vs UT of J&K 2023 LiveLaw (JKL) 92

Judgements/Orders:

Party Availing Legal Remedies Against Unfavourable Order Can't Be Pressurised By Initiating Contempt Action: Jammu and Kashmir High Court

Case Title: Gull Mohammad Bhat Vs Raj Kumar Goyal and others

Citation: 2023 LiveLaw (JKL) 87

A party has a right to avail the appropriate remedy before the higher forum under law and right to avail the appropriate remedy cannot be throttled by any process whatsoever, the Jammu and Kashmir and Ladakh High Court observed while dismissing a contempt petition.

Justice Wasim Sadiq Nargal observed that the right to avail the appropriate remedy as envisaged under law can by no stretch of imagination can be construed as an obstruction in the course of justice.

Major, Earning Children Entitled To 'Loss Of Dependency' Compensation On Parent's Death In Motor Accident: Jammu & Kashmir High Court

Case Title: Jamal Din & Ors Vs New India Assurance.

Citation: 2023 LiveLaw (JKL) 88

The Jammu & Kashmir and Ladakh High Court ruled that even if children claiming compensation under the Motor Vehicle Act on death of parent are major and earning, they are entitled to claim compensation on the ground of 'loss of dependency'.

"It is settled law that the legal representatives of the deceased have a right to apply for compensation and it must necessarily follow that even major and earning sons of deceased being legal representatives have a right to apply for compensation and it would be bounded duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on deceased or not, to limit the claim towards the conventional head only," the Court said.

Order XXIII Rule 3 CPC Cannot Be Imported To Deal With Complaints U/S 138 Negotiable Instruments Act: Jammu & Kashmir High Court

Case Title: Mohammad Ashraf Wani Vs Muzamil Bashir.

Citation: 2023 LiveLaw (JKL) 89

The Jammu and Kashmir and Ladakh High Court ruled that the provisions of Order XXIII Rule 3 of the CPC cannot be imported to deal with a complaint under Section 138 of the Negotiable Instruments Act.

A bench of Justice Javed Iqbal Wani observed that Section 138 of the Act is quasi-criminal and,

"The Magistrate could not have relied upon the aforesaid provisions of CPC while dealing with the case of a criminal offence under Section 138 of the Act which proceedings are regulated by the Code of Criminal Procedure".

Motor Accident Tribunal Can Pass Award U/S 166 Only After Proper Notice To Respondents And Affording Hearing: Jammu & Kashmir High Court

Case Title: Ghulam Nabi Turrey Vs Farooq Ahmad Thokar and Another

Citation: 2023 LiveLaw (JKL) 90

Setting aside an award of compensation passed by Motor Accidents Claims Tribunal, Shopian against a person without any notice to him, the Jammu and Kashmir and Ladakh High Court ruled that a man cannot incur the loss of property or liberty for an offence by a judicial proceedings until he has a fair opportunity of answering the case against him.

Justice Wasim Sadiq Nargal observed,

"It is only after giving a notice of the application to the respondents and affording them an opportunity of being heard and also after holding a proper enquiry into the matter, the Tribunal can pass an award, determining the amount of compensation which appears to be just, payable by the respondents. The law is settled at naught that when an award is passed at the back of a party and without affording him/her an opportunity of being heard, it is legally invalid."

Jammu & Kashmir High Court Quashes Journalist's Detention Under PSA, Says Detaining Authority Used Public Order, State Security With "Wavering Mind"

Case Title: Peerzada Shah Fahad Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 91

Observing that the detaining authority has used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty, the Jammu and Kashmir High Court quashed the detention order of Journalist Fahad Shah.

A bench of Justice Wasim Sadiq Nargal observed,

"Maintenance of public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of aside".

Mere Registration Of FIR Against Accused When He Was On Interim Bail Does Not Amount To Breach Of Bail Conditions: Jammu & Kashmir High Court

Case Title: Janbaz Ahmad Dass Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 92

The Jammu and Kashmir and Ladakh High clarified that the registration of an FIR against an accused does not constitute a breach of their interim bail conditions, as it is merely a preliminary step in the legal process and does not necessarily indicate criminal activity.

The bench of Justice Sanjay Dhar observed,

"Mere registration of an FIR against the petitioner during the pendency of his bail application when he was on interim bail, cannot amount to violation of the conditions of interim bail. This is so because mere registration of FIR does not mean that the petitioner had indulged in subversive activities or in any offence or any criminal activity thereby violating one of the conditions of bail".