J&K&L High Court Weekly Round-Up: March 13 To March 19, 2023

Nominal Index

Reema Arora & Ors Vs Law Enforce Inspector (Fertilizer) 2023 LiveLaw (JKL) 51

Rajana Devi Vs State of J&K &Ors 2023 LiveLaw (JKL) 52

Abdul Khaliq Rather Vs State of J&K & Ors 2023 LiveLaw (JKL) 53

New India Assurance Co. Ltd Vs Anita Devi and others 2023 LiveLaw (JKL) 54

Mukhtar Ahmad Andrabi Vs UT of J&K & Ors 2023 LiveLaw (JKL) 55

National Insurance Co. ltd.Vs Mursa Begum and ors 2023 LiveLaw (JKL) 56

Karnail Singh Vs UT of J&K 2023 LiveLaw (JKL) 57

Farooq Ahmad & Ors Vs State of J&K & Ors. 2023 LiveLaw (JKL) 58

Master X th. Shah Wali Vs State of J&K 2023 LiveLaw (JKL) 59

Judgements/Orders

When Company Is An Offender, No Vicarious Liability Can Be Attached To Its Officers Unless Statute Specifically Provides So: Jammu & Kashmir High Court

Case Title: Reema Arora & Ors Vs Law Enforce Inspector (Fertilizer)

Citation: 2023 LiveLaw (JKL) 51

The Jammu and Kashmir and Ladakh High Court recently quashed a criminal complaint filed under Essential Commodities Act, 1955 against the directors of a company on the ground that the complaint nowhere spells out as to how and in what manner the petitioners/accused were incharge of or were responsible to the accused company.

"The legal intendment is clear that when the company is an offender, vicarious liability of its directors can be imputed in terms of the provisions of a statue, making it a deeming fiction....There is no provision in the Penal Code to attach vicarious liability on Managing Director or Directors or employees of a Company.", the bench said.

Jammu & Kashmir High Court Comes To Aid Of Below Poverty Line Woman "Duped" Of Employment By Govt Officials To Oblige Sarpanch

Case Title: Rajana Devi Vs State of J&K &Ors.

Citation: 2023 LiveLaw (JKL) 52

The Jammu and Kashmir and Ladakh High Court observed that the perversity of an action or decision by a public authority/official, acting in the domain of public administration, irrespective of the tier of the administration, has no hiding from the pendular gaze of the Rule of Law which may for a given case get late but not defaults in catching up with the wrong deed and wrongdoer masquerading in the domain of the public administration.

S.7 Migrant Immovable Property Act Requiring Surrender Of Property To Prefer Appeal Against Eviction In Tune With Peculiar Conditions Of J&K: High Court

Case Title: Abdul Khaliq Rather Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 53

The Jammu and Kashmir and Ladakh High Court ruled that the condition to surrender the property for preferring an appeal under Section 7 of the Migrant Immovable Property Act 1997 against eviction order, was necessitated by the peculiar situation prevailing in the Union Territory of Jammu and Kashmir.

The bench comprising Justices Rajnesh Oswal & Mohan Lal observed,

"This provision was incorporated in view of the extraordinary situation prevailing in the then State of Jammu and Kashmir (now Union Territory) because of migration from the then State of Jammu and Kashmir (now Union Territory) and more particularly from the Kashmir Valley".

Compulsory Risks In Insurance Automatically Transferred To Transferee Of Vehicle Even When Certificate Of Insurance Not Transferred: Jammu & Kashmir High Court

Case Title: New India Assurance Co. Ltd Vs Anita Devi and others

Citation: 2023 LiveLaw (JKL) 54

The Jammu and Kashmir and Ladakh High Court ruled that whoever may be the actual owner of the motor vehicle at the time of the accident, compulsory risks covered under the policy of insurance get automatically transferred to the transferee of a vehicle even though certificate of insurance has not been transferred in his favour.

No Absolute Bar On Citizens To Invoke Writ Jurisdiction In Contractual Matters With State: Jammu & Kashmir High Court

Case Title: Mukhtar Ahmad Andrabi Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 55

The Jammu and Kashmir and Ladakh High Court ruled that in matters of contractual dispute with the State and its instrumentalities there is no absolute bar to exercise the writ jurisdiction and the High Court should take a holistic view and make a determination as to whether it would be proper to exercise its writ jurisdiction.

Justice Wasim Sadiq Nargal observed,

"There has been paradigm shift in the approach of the Courts in exercise of its Writ Jurisdiction in the matters of contractual disputes with State and its authorities. The law regarding the exercise of judicial review in contractual matters with State or its instrumentalities has definitely evolved over the years and the ordinary citizens can, in appropriate cases, approach the High Courts for exercise of Writ Jurisdiction."

Insurance Company Not Liable To Unauthorised Passengers Traveling In Offending Vehicle, Pay & Recover Principle Not Applicable: J&K High Court

Case Title: National Insurance Co. ltd.Vs Mursa Begum and ors.

Citation: 2023 LiveLaw (JKL) 56

The Jammu and Kashmir and Ladakh High Court has observed that once it is shown that deceased/injured persons were traveling as unauthorised passengers in an offending vehicle and their risk is not covered under the terms insurance policy, the insurer cannot be saddled with the liability to compensate them and even the principle of 'Pay and Recover' will not be attracted.

Facilitating Question Paper Leak In Competitive Exam More Heinous Than Murder: Jammu & Kashmir HC Refuses Bail To BSF Officer In SI-Recruitment Scam

Case Title: Karnail Singh Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 57

The Jammu and Kashmir and Ladakh High Court rejected the bail application of a BSF officer, alleged to be the main accused in the J&K Service Selection Board Police sub-inspector recruitment scam case observing that grant of bail in economic offences which affect a larger section of the society on the mere fact that the offence with which an accused is charged does not carry a very severe punishment does not by itself create a ground to enlarge the accused on bail.

A bench comprising Justice Sanjay Dhar, while rejecting the bail application of the accused, a Border Security Force (BSF) Commandant (Medical), observed,

"A person, who indulges in facilitating leakage and sale of question papers relating to competitive examinations, plays with the career and future of thousands of young aspirants. Such an act is more heinous than an offence of murder because by killing a person only one family gets affected but by ruining the career of thousands of aspirants, whole society is adversely impacted".

Once Magistrate Seeks Preliminary Report On Allegations Made In Application U/S 156(3) CrPC, Police Cannot Straightaway Lodge FIR: Jammu & Kashmir HC

Case Title: Farooq Ahmad & Ors Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 58

The Jammu and Kashmir and Ladakh High Court observed that when a Magistrate directs a preliminary enquiry under Section 156(3) CrPC and the police without reporting back to the Magistrate straightway goes on to file an FIR without any direction thereto, the same amounts to usurpation of the powers of the Magistrate.

Revisional Powers U/S 102 Juvenile Justice Act Vested With High Court, Cannot Be Exercised By Sessions Court/ Children’s Court: Jammu & Kashmir HC

Case Title: Master X th. Shah Wali Vs State of J&K

Citation: 2023 LiveLaw (JKL) 59

The Jammu and Kashmir and Ladakh High Court made it clear that a Sessions Court or a Children’s Court cannot entertain a revision petition against the order of Juvenile Justice Board.

Justice Sanjay Dhar observed that the power of revision under Section 102 of the Juvenile Justice Act is vested with the High alone. "No such power is vested with the Court of Sessions or Children’s Court," the bench remarked.