J&K&L High Court Weekly Round Up :September 12 - September 18, 2022

Nominal Index :

Tufail Ahmad Chota Vs State of J&K 2022 LiveLaw (JKL) 149

Riyaz Ahmad Wagay Vs UT of J&K 2022 LiveLaw (JKL) 150

Rayees Ahmad Dar Vs UT of J&K 2022 LiveLaw (JKL) 151

Parvez Ahmad Baba Vs UT of J&K 2022 LiveLaw (JKL) 152

Javid Ahmad Shah Vs UT of J&K 2022 LiveLaw (JKL) 153

UT of J&K Through Chairman JKBOPEE Vs Dr Bhat Ab. Ubran Bin Aftab and Others  2022 LiveLaw (JKL) 154

Abdul Majeed Ganai Vs Abdul Rahim Bhat & Another 2022 LiveLaw (JKL) 155

Parvesh Bahri & Ors Vs UT of J&K 2022 LiveLaw (JKL) 156

Geeta Devi & Ors Vs M/s Somnath Naragmal & Anr 2022 LiveLaw (JKL) 157

Mohammad Abbas wani Vs Sharifa &  Ors 2022 LiveLaw (JKL) 158

Vijay Singh Vs Lalita Karki & Ors 2022 LiveLaw (JKL) 159

Judgements/Orders :

When A Graver Offence Is Added Against An Accused On Bail, Investigation Agency Has Option To Arrest After Seeking Fresh Order From Court: J&K&L HC

Case Title : Tufail Ahmad Chota Vs State of J&K

Citation : 2022 LiveLaw (JKL) 149

The Jammu and Kashmir and Ladakh High Court observed that in a criminal case when a graver offence is added, the accused who is on bail has an option of surrendering before the Court and apply for bail for newly added offence or even the investigating agency, on addition of a graver offence, has an option to proceed to arrest the accused but before doing so, it need to obtain a fresh order of arrest against the accused from the Court that had granted the bail.

S.202 CrPC | Once Magistrate Delays Issuance Of Process, Its Not Open To Direct Seizure Of Suspected Stolen Property: J&K&L High Court

Case Title :Riyaz Ahmad Wagay Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 150

The Jammu and Kashmir and Ladakh High Court ruled that when a Magistrate defers issuance of process under Section 202 CrPC against the accused, it is not open for him to pass directions to seize a suspected stolen property.

"Unless the learned Magistrate had material before him to come to a tentative conclusion that the vehicles in question were subject matter of theft, he could not have made an order for seizure of vehicles in question. The fact that the learned Magistrate has not issued process against the petitioner in the complaint filed by the respondent, shows that the learned Magistrate has yet to render a prima facie opinion about the commission of offence of theft by the petitioner. Without applying his mind to the material on record and without recording his satisfaction as regards the commission of offence by the petitioner/accused, it was not open to the learned Magistrate to direct the seizure of the vehicles" Justice Sanjay Dhar expounded.

Confession In Police Custody | 'Magistrate' U/S 26 Evidence Act Does Not Include Executive Magistrate: J&K&L High Court

Case Title :Rayees Ahmad Dar Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 151

The Jammu and Kashmir and Ladakh High Court ruled that the term 'Magistrate' appearing in Section 26 of the Evidence Act refers only to a Judicial Magistrate of first class or a Metropolitan Magistrate and no other class of Magistrates.

The bench comprising Justice Sanjay Dhar observed:

"Giving it any other construction would defeat the provisions contained in Section 164 of the Cr. P. C, which provides for safeguards for ensuring recording of confessions of the accused in a free and fair environment."

Food Safety & Standard Act | Designated Authority May Not Issue License U/S 31 In Case Of Dispute Between Restaurant Co-Owners: J&K&L High Court

Case Title :Parvez Ahmad Baba Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 152

The Jammu & Kashmir & Ladakh High Court ruled that if there are more than one owners of an authorized premises and only one of them applies for licence while others object, it would not be possible for the designated authority to issue license under section 31 of the Food Safety and Standard Act 2006, unless the dispute between the co-sharers is settled.

Suspension Of Sentence U/S 389 CrPC Need Not Be Considered In Heinous Cases Unless Appeal Remains Undecided For 5/6 Years: J&K&L High Court

Case Title :Javid Ahmad Shah Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 153

The Jammu and Kashmir and Ladakh High Court ruled that it has only to be after 5/6 years in case the appeal is not disposed of, that suspension of sentence and grant of bail under Section 389 CrPC be considered, in a heinous case like murder.

"There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellant court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine", the bench explained.

Reservation Must Reach Every Deserving Candidate, Cannot Be Eaten Away By Meritorious Reserved Category Candidate: J&K&L High Court

Case Title :UT of J&K Through Chairman JKBOPEE Vs Dr Bhat Ab. Ubran Bin Aftab and Others

Citation : 2022 LiveLaw (JKL) 154

The Jammu and Kashmir and Ladakh High Court observed that the benefit of reservation must reach to the deserving candidate in the category and State is under obligation that this benefit is not eaten away by a candidate of reserved category, who has equal or better merit than that of candidate last admitted in the professional course in the general category.

"The Section 10 in clear and unambiguous terms, provide that there shall be no bar for admission of a member of reserved category against the seat other than or in addition to one reserved for him under Section 9, if such candidate is found qualified for admission on merit as compared with the candidates of the open merit/general category", the bench underscored.

Order 23 Rule 3 CPC | Vitiated Compromise Decree Can Be Recalled By Same Court, Separate Suit Challenging Such Decree Is Barred: J&K&L High Court

Case Title :Abdul Majeed Ganai Vs Abdul Rahim Bhat & Another

Citation : 2022 LiveLaw (JKL) 155

The Jammu and Kashmir and Ladakh High Court observed that a compromise deed is essentially a contract between the parties superimposed by the decree of the Court and such a decree can be avoided only by approaching the same Court and demonstrating before it that the compromise on the basis of which decree is passed is not lawful

J&K Migrant Immovable Property Act | Only District Magistrate Has Authority To Hold Enquiry Into Alienation Made In Contravention Of Act: High Court

Case Title :Parvesh Bahri & Ors Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 156

The Jammu and Kashmir and Ladakh High Court ruled that the Divisional Commissioner is only the authority competent to grant permission for alienation under Section 3 of the J&K Migrant Immovable Property 1997, whereas it is the District Magistrate having the jurisdiction in the area where the property is situated, who is given authority to hold an enquiry into the alienation allegedly made in contravention of the provisions of the Act

High Court's Power Of Review Not Circumscribed By Provisions Of Employees' Compensation Act: J&K&L High Court

Case Title :Geeta Devi & Ors Vs M/s Somnath Naragmal & Anr.

Citation : 2022 LiveLaw (JKL) 157

The Jammu and Kashmir and Ladakh High Court ruled that the High Court is not a creature of a statute like Employee's Compensation Act but it is a creature of the Constitution and hence the limitations of jurisdiction as contained in the Act of 1923 are not applicable to the jurisdiction of the High Court.

"It is a well settled proposition of law that being a Court of record, the High Court is vested with powers to proceed under Article 226 of Constitution of India itself and to review a judgment if it is found that there was any material suppression or the Court was not right in passing a verdict. The High Court is not a creature of a statute like Employee's Compensation Act but it is a creature of the Constitution. Hence, the limitations of jurisdiction as contained in the Act of 1923 are not applicable to the jurisdiction of the High Court. Thus, the contention of the learned counsel appearing for the respondent-insurer that the power of this Court to review its own order are circumscribed by the provisions contained in the Act of 1923 is a specious argument, which deserves to rejected", the bench recorded.

Vehicle Owners Can't Be Expected To Make Enquiries With RTOs All Over Country To Cross Check Validity Of Driver's License: J&K&L High Court

Case Title :Mohammad Abbas wani Vs Sharifa & Ors

Citation : 2022 LiveLaw (JKL) 158

The Jammu and Kashmir and Ladakh High Court held that it is open to insurance company to take a defence in a claim petition under MV Act that the driver of offending vehicle was not duly licenced, but it is required to prove such a plea.

A bench of Justice Vinod Chatterji Koul observed,

"Nevertheless, even after proving that licence was a fake one, it is to be looked into that the owner of vehicle while hiring a driver checked the licence and satisfied himself as to competence of driver and if the owner is drew such satisfaction from the DL no breach u/s 149 of the said will stand attracted".

Order XVI Rule 1 CPC Confers Wider Jurisdiction To Cater A Situation Where Party Failed To Name A Witness: J&K&L High Court

Case Title : Vijay Singh Vs Lalita Karki & Ors

Citation : 2022 LiveLaw (JKL) 159

The Jammu and Kashmir and Ladakh High Court ruled that Sub-rule (3) of Rule 1 of Order XVI CPC confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list or the party is unable to produce him or her on his own under Rule 1A and in such a situation, the party out of necessity may seek the assistance of the Court under sub-rule (3) to procure the presence of the witness.