J&K&L High Court Weekly Round Up: September 5 To September 11, 2022

Nominal Index [Citations 137 - 148]:

• Mohammad Ali Bhat Vs Shafeeqa Bano & Ors 2022 LiveLaw (JKL) 137

• Manzoor Ahmad Lone Vs UT of J&K & Ors 2022 LiveLaw (JKL) 138

• Showkat Aziz Zargar Vs Nabeel Showkat & Another 2022 LiveLaw (JKL) 139

• Vijay Gupta & Ors Vs Deeksha Sharma & Ors 2022 LiveLaw (JKL) 140

• Abdul Bari Naik v. State of J&K and others 2022 LiveLaw (JKL) 141

• BHARTI AIRTEL LIMITED COMPANY & ORS v MALIK MUSHTAQ 2022 LiveLaw (JKL) 142

• Symbiosis Pharmaceuticals Pvt Ltd Vs State of J&K 2022 LiveLaw (JKL) 143

• UT Of J&K Vs Javid Ahmad Shah 2022 LiveLaw (JKL) 144

• Ashok Kumar Sarngal & Ors Vs State of J&K 2022 LiveLaw (JKL) 145

• Abdullah Danish Shervani Vs UT of J&K 2022 LiveLaw (JKL) 146

• Amir Hassan Mir Vs UT of J&K 2022 LiveLaw (JKL) 147

• M/S Amira Engineers Vs Telecommunications Consultants India & Ors 2022 LiveLaw (JKL) 148

Judgements/Orders :

Sec 125 CrPC | Muslim Husband Cannot Avoid His Liability To Maintain Unless Divorce Is Validly Pronounced And Properly Communicated : J&K&L High Court

Case Title :Mohammad Ali Bhat Vs Shafeeqa Bano & Ors

Citation : 2022 LiveLaw (JKL) 137

The Jammu and Kashmir and Ladakh High Court held that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife.

"It is clear that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife", Justice Sanjay Dhar observed.

Pendency Of Prosecution No Bar To An Order Of Preventive Detention :J&K&L High Court

Case Title :Manzoor Ahmad Lone Vs UT of J&K & Ors

Citation : 2022 LiveLaw (JKL) 138

The Jammu and Kashmir and Ladakh High Court ruled that the pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order.

"An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order", Justice Moksha Khajuria Kazmi observed.

Sec 125 CRPC | Major Son Or Daughter Not Entitled To Maintenance, Except When A Statute Or Personal Law Comes To Aid: J&K&L High Court

Case Title : Showkat Aziz Zargar Vs Nabeel Showkat & Another

Citation : 2022 LiveLaw (JKL) 139

The Jammu and Kashmir and Ladakh High Court ruled that a major son or daughter cannot be awarded maintenance by a Magistrate in exercise of his powers under Section 125 of CR.P.C but in an appropriate case, a Family Court has jurisdiction to grant maintenance to a major Hindu daughter on the basis of a combined reading of the provisions contained in Section 125 of the Cr. P. C and Section 20(3) of the Hindu Adoption and Maintenance Act.

Bigamy | Only Court Within Whose Jurisdiction Second Marriage Is Performed Has Power To Try Offence U/S 494 IPC: J&K&L High Court

Case Title : Vijay Gupta & Ors Vs Deeksha Sharma & Ors

Citation : 2022 LiveLaw (JKL) 140

The Jammu and Kashmir and Ladakh High Court comprising Justice Vinod Chatterji Koul ruled that in an offence falling under Section 494 IPC of performing/ contracting second marriage during the subsistence of first valid marriage, it is only the Court within whose jurisdiction the second marriage is performed which has the jurisdiction to try the case in terms of Section 177 of Criminal Procedure Code.

JKL High Court Refuses To Quash UAPA Case Against Professor Accused Of Promoting Separatism, Provoking People Against Security Forces

Case Title : Abdul Bari Naik v. State of J&K and others

Citation : 2022 LiveLaw (JKL) 141

The bench of Justice Sanjay Dhar noted that as per the investigation conducted by the investigating agency, the petitioner is trying to motivate the common people towards separatism and he is provoking them against the police and security forces as also against district administration.

"In one of the video clips, the petitioner is seen conveying to his audience that the children of Kashmir are being oppressed by the security forces and the army. In yet another video clip, the petitioner is conveying that the army is hampering the movement of the people and it is obstructing the children from going to schools which has led to closure of schools. In yet another video clip, the petitioner is seen pleading cause relating to release of a person who was in custody for indulging in stone pelting and terrorist activities," the Court further remarked.

Summoning Accused In A Criminal Matter Is A Serious Business, Should Not Be Done Mechanically: J&K&L High Court

CASE TITLE: BHARTI AIRTEL LIMITED COMPANY & ORS v MALIK MUSHTAQ

Citation: 2022 LiveLaw (JKL) 142

The Jammu and Kashmir and Ladakh High Court recently observed that the summoning of an accused in a criminal matter is a serious business and the same has to be done only after de application of mind by the court concerned.

Justice Sanjay Dhar said:

"Summoning of an accused in a criminal matter is a serious business. Once the criminal law is set into motion, the accused is exposed to the possibility of arrest and he has to rush to the court to seek bail. Therefore, the order of summoning an accused in a criminal complaint should not be a mechanical exercise but such an order should reflect that the Magistrate has applied his mind to the facts of the case and the applicable law, whereafter the Magistrate has to record his satisfaction as to whether any offence is made out and if so, which of the offences is made out from the contents of the complaint and the material available before him. It is only thereafter that the Magistrate has to decide as to whether or not the process has to be issued against an accused."

Drugs & Cosmetics Act | Manufacturer Has Right To Dispute Correctness Of Govt Analyst Report Within 28 Days: J&K&L High Court

Case Title : Symbiosis Pharmaceuticals Pvt Ltd Vs State of J&K

Citation : 2022 LiveLaw (JKL) 143

The Jammu and Kashmir and Ladakh High Court ruled that a drug manufacturer has a right to dispute the correctness of the report of the government analyst within the statutory period of 28 days from the date of the receipt of the report as per the mandate of section 25 (3) of the Drugs and Cosmetics Act, 1940.

Justice Rajnesh Oswal observed,

"Law permits the drug manufacturer to controvert the report expressing his intention to adduce evidence to controvert the report within the prescribed limitation of 28 days as provided under Section 25(3) of the 1940 Act. In view of the fact that the appellants did not express an intention to adduce evidence to controvert the analyst report within the statutory limitation period of 28 days, further delay in filing the complaint becomes immaterial".

Offering Funeral Prayers Of A Killed Militant Cannot Be Construed To Be An Anti-National Activity: J&K&L High Court

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

Citation : 2022 LiveLaw (JKL) 144

The Jammu & Kashmir & Ladakh High Court ruled that offering of funeral prayers of a killed militant by the public at large cannot be construed to be anti-national activity of that magnitude to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution.

The Division bench of Justices Ali Mohammd Magrey and MA Chowdhary observed,

"Offering of funeral prayers of a killed militant by the public at large, even at the instance of the respondents herein, who are stated to be elderly people of their village, cannot be construed to be anti-national activity of that magnitude so as to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution of India"

Training Can Act As A Distinguishing Factor To Maintain Separate Seniority List In The Same Department: J&K&L High Court

Case Title : Ashok Kumar Sarngal & Ors Vs State of J&K

Citation : 2022 LiveLaw (JKL) 145

The Jammu and Kashmir and Ladakh High Court ruled that training can act as a distinguishing factor to enable Govt to frame a separate seniority list in the same Department and the Government therefore is well within its rights to frame such rule/principle provided that such principle/rule is reasonable, fair and non-discriminatory.

"Cadre management is exclusively the prerogative of the Government and the Government, as such, has a free hand in the matter of managing any cadre of the service provided that the action of the Government must be reasonable and fair and above all non-discriminatory. Thus, no fault can be attributed to the Government to have different seniority on the basis of training for the appellants", Justices Tashi Rabstan and Wasim Sadiq Nargal observed.

Matrimonial Offences Including S.498A IPC May Be Quashed In Exercise Of Powers U/S 482 CrPC When Parties Arrive At Settlement: J&K&L High Court

Case Title : Abdullah Danish Shervani Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 146

The Jammu and Kashmir and Ladakh High Court comprising Justice Sanjay Dhar ruled that offences arising out of matrimony, where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court will be within its jurisdiction to quash the criminal proceedings.

Conditions Imposed During Interim Bail U/S 439(1) Cannot Be Construed To Mean "In Custody" While Reckoning Period For Default Bail : J&K&L High Court

Case Title :Amir Hassan Mir Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 147

The Jammu and Kashmir and Ladakh High Court ruled that conditions imposed by the court Section 439(1)(a) CrPC while granting bail cannot by any stretch of imagination be construed to mean that accused person is in custody so as to claim the computation of such period in reckoning the period of 180 days of detention to acquire the statutory right of default bail under proviso to sub-section (2) of Section 167 CrPC read with Section 36A(4) of the NDPS Act.

"By imposition of such conditions, the physical custody of the accused does not vest with the Court as his movement is not in any way restricted. It cannot be stated that he was in physical custody of the Court so as to claim the computation of such period in reckoning the period of 180 days of detention to acquire the statutory right under proviso to sub-section (2) of Section 167 Cr. P. C read with Section 36A(4) of the NDPS Act", Justice Sanjay Dhar explained.

Presence Of An Arbitration Clause Does Not Always Oust Court's Jurisdiction Under Article 226: J&K&L High Court

Case Title :M/S Amira Engineers Vs Telecommunications Consultants India & Ors.

Citation : 2022 LiveLaw (JKL) 148

The Jammu and Kashmir and Ladakh High Court ruled that writs under Article 226 are maintainable for asserting contractual rights against the State or its instrumentalities and the presence of Arbitration clause does not oust the jurisdiction under Article 226 in all cases though it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked