Jammu & Kashmir & Ladakh High Court Weekly Roundup: 8 May - 14 May, 2023

Nominal Index:

Ashok Kumar Vs CBI 2023 LiveLaw (JKL) 111

Harbachan Singh Vs Sr. Superintendent of Police Srinagar and others 2023 LiveLaw (JKL) 112

Muntazir Ahmad Bhat Vs UT of J&K 2023 LiveLaw (JKL) 113

Ghulam Ahmad Mir Vs J&K Bank & Ors 2023 LiveLaw (JKL) 114

Hem Raj Vs Union of India & Ors 2023 LiveLaw (115)

Shamim Ahmed Vs UT of J&K & Ors 2023 LiveLaw (JKL) 116

Judgements/Orders:

Question Paper Leakage In Govt Exams Shakes Public Confidence: Jammu & Kashmir High Court Refuses Bail To Accused Officer, Son In SI Recruitment Scam

Case Title: Ashok Kumar Vs CBI

Citation: 2023 LiveLaw (JKL) 111

Observing that a recruitment scam in government services undermines public confidence in the system and causes grave injustice to deserving and meritorious candidates, the Jammu and Kashmir High Court rejected the bail application of a police officer and his son who were arrested by the CBI last year in connection with the infamous JKSSB Police Sub-Inspector Recruitment Scam.

"The offence is against the society as whole as due to the said huge scam carrier of hundred and thousands of candidates/aspirants for the post of Sub Inspector has been ruined/marred. Question paper leakage damages the future of our young generation and this criminal act cannot be compared with scams involving million of rupees, as the said crime is against the society at large", the bench underscored.

Preliminary Inquiry Necessary When There Is Abnormal Delay By Complainant In Initiating Criminal Prosecution: Jammu & Kashmir High Court Reiterates

Case Title: Harbachan Singh Vs Sr. Superintendent of Police Srinagar and others

Citation: 2023 LiveLaw (JKL) 112

The Jammu and Kashmir and Ladakh High Court reiterated that when there is abnormal delay by complainant in initiating criminal prosecution, it becomes necessary for the Magistrate to order a preliminary inquiry.

Justice Javed Iqbal Wani observed this inquiry can help identify any potential obstacles in the prosecution process and determine the reasons for the delay, such as missing evidence or witnesses.

Public Safety Act | Preventive Detention Not An Arrest, No 24-Hour Magistrate Appearance Required: Jammu & Kashmir High Court

Case Title: Muntazir Ahmad Bhat Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 113

The Jammu and Kashmir and Ladakh High Court ruled that being detained under the Public Safety Act cannot be considered an arrest for committing an offence under the penal law. Instead, it is a preventive measure to avoid any possible harmful act from the detained person based on their background and therefore, there is no requirement to produce the detainee before a magistrate within 24 hours, it clarified.

Banks Can Exclude Such Borrowers From OTS Scheme From Whom Chances Of Recovery Are High: Jammu & Kashmir High Court

Case Title: Ghulam Ahmad Mir Vs J&K Bank & Ors.

Citation: 2023 LiveLaw (JKL) 114

The Jammu and Kashmir and Ladakh High Court ruled that a banking company enjoys the discretion to formulate policies and exclude from its One Time Settlement Scheme such borrowers, who have a higher chance of recovery.

A bench comprising Justice Sanjay Dhar observed,

"A banking company is free to make policies and issue guidelines so as to differentiate the cases of those borrowers where the chances of recovery are bright from those where the chances of recovery are bleak. Merely because a banking company has formulated a scheme excluding the cases of borrowers where the chances of recovery are bright, it cannot be stated that such a scheme or such covenants of the scheme are discriminatory in nature against the excluded borrowers."

BSF Personnel Can't Be Terminated Without Opportunity Of Hearing Even If Court Of Enquiry Concludes Trial Is Inexpedient: Jammu & Kashmir High Court

Case Title: Hem Raj Vs Union of India & Ors.

Citation: 2023 LiveLaw (115)

The Jammu and Kashmir and Ladakh High Court ruled that under Rule 22 of the BSF Rules 1969, it is mandatory to inform the accused of all adverse reports against them and provide them with an opportunity to defend themselves in writing, even if a Court of Enquiry has concluded that trial of such person is inexpedient.

Justice Javed Iqbal Wani observed,

"Even if it is assumed that the respondents could proceed against the petitioner under Rule 22 supra while opining that it is inexpedient or impracticable to subject the petitioner to the trial for having overstayed leave, yet in terms of sub-Rule (2) of the Rules 22 supra, the respondents were mandatorily required to inform the petitioner together with all reports adverse to him besides providing an opportunity to him to submit in writing his explanation and defence."

J&K Police Manual Allows Discharge Of Probationer Without Assigning Reasons But No Stigmatic Citations Without Enquiry: High Court

Case Title: Shamim Ahmed Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 116

Clarifying the legal provisions for the discharge of a probationer under the Jammu & Kashmir Police Manual, the Jammu & Kashmir and Ladakh High Court held that an individual can be discharged without specifying the reasons behind the decision, however, if the discharge order cites deficiencies in the service of the incumbent, it could be deemed stigmatic and may not hold up in legal proceedings.