J&K&L High Court Monthly Digest: September 2022 (Citations 122 - 170)

Rishi Sharma Director Haustus Biotech Vs Drug Inspector 2022 LiveLaw (JKL) 122

Union of India Vs M/S D. Khosla Co & Ors 2022 LiveLaw (JKL) 123

National Highway Authority of India Vs Ali Mohammad Dar & 2022 LiveLaw (JKL) 124

Waqar Ahmad Dar Vs UT of J&K 2022 LiveLaw (JKL) 125

M/S JK Stationers Vs State of J&K 2022 LiveLaw (JKL) 126

Farooq Ahmad Bhat Vs Syed Basharat Saleem 2022 LiveLaw (JKL) 127

Altaf Ahmad Zargar Vs Mst Sana & Ors 2022 LiveLaw (JKL) 128

New India Assurance Co Vs Mehra Begum 2022 LiveLaw (JKL) 129

Muzamil Ahmad Dar V/s High Court of J&K & Ors 2022 LiveLaw (JKL) 130

Bashir Ahmad Wani v J&K Grameen Bank and Another 2022 LiveLaw (JKL) 131

Aijaz Ahmad Sofi v. UT of J&K 2022 LiveLaw (JKL) 132

Liaqat Ali Vs UT of J&K 2022 LiveLaw (JKL) 133

Mst Hameeda Vs State of J&K 2022 LiveLaw (JKL) 134

Naseer Ahmad Sheikh Vs Mohammad Sultan Bhat 2022 LiveLaw (JKL) 135

Mushtaq Ahmad Peer v/s State of J&K 2022 LiveLaw (JKL) 136

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

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

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

Bashir Ahmad Bhat Vs Ghulam Ahmad Bhat 2022 LiveLaw (JKL) 160

Tabasum Mir Vs Union of India 2022 LiveLaw (JKL) 161

Saleema Begum & Ors Vs State of J&K 2022 LiveLaw (JKL) 162

UT of J&K Vs Hilal Ahmad Rather 2022 LiveLaw (JKL) 163

Sanjay Kumar Vs State of J&K and others 2022 LiveLaw (JKL) 164

Khursheed Ahmad Bhat Vs UT of J&K & Ors 2022 LiveLaw (JKL) 165

Prem Nath & Ors Vs State of J&K 2022 LiveLaw (JKL) 166

State of J&K & Ors Vs Mir Fathima 2022 LiveLaw (JKL) 167

Mushtaq Ahmad Pandit Vs Addl Deputy Commissioner & Or s2022 LiveLaw (JKL) 168

Mohd Hussain Vs Shabnam Ara 2022 LiveLaw (JKL) 169

Custodian General Vs J&K Special Tribu nal2022 LiveLaw (JKL) 170

Judgements/Orders:

1) S.32A Drugs & Cosmetics Act | Impleadment Of Manufacturer Can Be Done Only After Trial Has Commenced & Evidence Is Led: J&K&L High Court

Case Title: Rishi Sharma Director Haustus Biotech Vs Drug Inspector

Citation : 2022 LiveLaw (JKL) 122

The Jammu and Kashmir and Ladakh High Court held that under the section 32-A of Drugs and Cosmetics Act 1940 it is only after trial has commenced and the evidence has been led, power to implead manufacturer or any other person who appears to be involved in the offence can be exercised and prior to that, no such power can be exercised.

"One of the differences between Section 319 of the Code and Section 20-A of the Act is that, while in the former even if it appears to the court from the evidence (either during inquiry or trial of the offence), that another person is to be tried along with the already arraigned accused, then the court can proceed against that other person, while in the latter the satisfaction of the court that such manufacturer (distributor or dealer) is also concerned with that offence must be gathered from "the evidence adduced before it during the trial". In other words, the power under Section 20-A cannot be invoked until the trial begins and after the trial ends." Justice Sanjay Dhar observed.

2) Arbitrator Is A Creature Of Contract & Hence Cannot Supercede It By Any Means : J&K&L High Court

Case Title: Union of India Vs M/S D. Khosla Co & Ors.

Citation: 2022 LiveLaw (JKL) 123

The Jammu and Kashmir and Ladakh High Court ruled that an arbitrator is creature of the contract between the parties and, therefore, if he ignores the specific terms of the contract, it would be a question of jurisdictional error, which could be corrected by the Court under Section 30 of J&K Arbitration Act, 2002 and for that limited purpose the agreement is required to be looked into.

"The award can be interfered with by the Court, if it is found that the arbitrator has travelled beyond his jurisdiction and has awarded claims which would be beyond the scope of submission. The award will also be bad, if the arbitrator, who himself is a creature of the contract agreement travels beyond the terms and conditions of the contract and awards claims on the excepted items. Such award would be invalid and can very well be interfered with by the Court," Justice Sanjeev Kumar observed.

3) Local Authority May Appeal Against Enhancement Of Land Acquisition Compensation By Reference Court Only After Leave Of Court U/S 50(2): J&K&L HC

Case Title: National Highway Authority of India Vs Ali Mohammad Dar & Ors.

Citation: 2022 LiveLaw (JKL) 124

The Jammu and Kashmir and Ladakh High Court recently ruled that in the event of enhancement of compensation for land acquisition by the reference court, if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court only after obtaining leave of the court as prescribed u/s 50(2) of the Land Acquisition Act.

4) NDPS Act | Standard Of "Conscious Possession" Different In Case Of A Public Transport As Opposed To Private Vehicle: J&K&L High Court

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

Citation: 2022 LiveLaw (JKL) 125

The Jammu and Kashmir and Ladakh High Court ruled that the expression "possession" used in the provisions contained in Section 20 and 22 of the NDPS Act clearly specify that the standard of conscious possession would be different in case of public transport as opposed to a private vehicle with few persons known to one another.

"The term "conscious possession" is not capable of precise and complete logical definition of universal application in the context of all the statute and the knowledge of possession of contraband has to be ascertained from the fact and circumstances of the case," Justice Sanjay Dhar observed.

5) S.319 CrPC | Only Material Collected By Court During Inquiry Or Trial Can Be Used To Arraign An Additional Accused: J&K&L High Court

Case Title: M/S JK Stationers Vs State of J&K

Citation: 2022 LiveLaw (JKL) 126

The Jammu and Kashmir and Ladakh High Court ruled that only the material collected by the court during the course of inquiry or trial and not the material collected by the investigating agency during the investigation of the case can be used, while arraigning an additional accused under Section 319 CrPC.

"Of course, the evidence would also include the evidence led during the trial of the case after framing of charges. The Supreme Court has, while answering the aforequoted question framed by it, laid down that besides the evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 of the Cr. P. C", Justice Sanjay Dhar recorded.

6) [Medical Negligence] Obtaining Expert Opinion Necessary Before Setting Criminal Law Into Motion Against Medical Professionals: J&K&L High Court

Case Title: Farooq Ahmad Bhat Vs Syed Basharat Saleem

Citation: 2022 LiveLaw (JKL) 127

The Jammu and Kashmir and Ladakh High Court ruled that before prosecuting medical professionals for the offence of criminal negligence, a Criminal Court should obtain opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set into motion.

7) Domestic Voilence Act | Proceedings Under Section 12 Of DV Act Cannot Be Equated With Lodging A Criminal Complaint : J&K&L High Court

Case Title: Altaf Ahmad Zargar Vs Mst Sana & Ors

Citation: 2022 LiveLaw (JKL) 128

The Jammu and Kashmir and Ladakh High Court ruled that the proceedings under Section 12 of the Domestic Violence Act cannot be equated with lodging of a criminal complaint or initiation of prosecution and therefore a Magistrate, after obtaining the response from the husband and his relatives etc. is well within his jurisdiction to revoke his order of issuing summons to them or he can even drop the proceedings.

8) Motor Vehicles Act - Claimant Whether Gratuitous Or Non- Gratuitous Cannot Fasten Liability On The Insurer Under The Provisions Of Motor Vehicles Act: J&K&L High Court

Case Title: New India Assurance Co Vs Mehra Begum

Citation: 2022 LiveLaw (JKL) 129

The Jammu and Kashmir and Ladakh High Court ruled that in a claim with regard to death or disability of a person travelling by a goods vehicle /goods carriage, as gratuitous or non-gratuitous does not, by the application of statutory provisions of Motor Vehicles Act, fasten the liability on the insurer, except an owner of the load /goods travelling in the vehicle having such load /goods.

9) Experience Of Skill Gained Prior To Obtaining Diploma Relevant For Appointment Unless Recruitment Advertisement Prescribes Otherwise: J&K&L HC

Case Title: Muzamil Ahmad Dar V/s High Court of J&K & Ors.

Citation: 2022 LiveLaw (JKL) 130

The Jammu and Kashmir and Ladakh High Court observed that unless a recruitment advertisement specifically mentions that the experience gained in a skill/ trade should be after the candidate has obtained a Diploma in that course, the prior experience can be considered for the purpose of selection and appointment.

10) Pensionary Benefits | Employee Who Is Removed From Service For Misconduct Not At Par With Those Who Retire On Superannuation: J&K&L High Court

Case Title:vBashir Ahmad Wani v J&K Grameen Bank and Another

Citation: 2022 LiveLaw (JKL) 131

The Jammu and Kashmir and Ladakh High Court observed that an employee who is removed from service for misconduct is not at par with those who retire on superannuation.

11) Non-Consideration Of Detenu's Representation Against Preventive Detention Order Violates Right Under Article 22 Of Constitution: J&K&L High Court

Case Title: Aijaz Ahmad Sofi v. UT of J&K

Citation: 2022 LiveLaw (JKL) 132

The Jammu and Kashmir and Ladakh High Court observed that non-consideration by the detaining authority, a detenu's representation against an order for his preventive detention, violates such detenu's rights under Article 22 of the Constitution.

"I am of the considered view that the impugned order of detention does not sustain in the eye of law, in that, the representation made on his behalf by his mother has not been considered by the respondents. Right of the detenue to make a representation and to have the same considered by the competent authority is a fundamental right guaranteed to a person under detention under Article 22 of the Constitution and the infraction of such a right renders the detention illegal and unconstitutional." the court recorded.

12) Refusal To Act On Rape Victim's Testimony In Absence Of Corroboration Adds Insult To Injury: JKL High Court Upholds Rape Conviction

Case Title: Liaqat Ali Vs UT of J&K.

Citation: 2022 LiveLaw (JKL) 133

The bench of Justice Rajnesh Oswal and Justice Mohan Lal observed that in rape cases, the victim loses her face, and her value as a person. The Court further emphasized that in our conservative society, a woman and more so a young unmarried woman will not put her reputation in peril by falsely alleging forcible sexual assault.

13) S.353 IPC | Person In Exercise Of Right Sanctioned By Law Can't Be Said To Have Deterred Public Official From Discharging His Duty: J&K&L High Court

Case Title: Mst Hameeda Vs State of J&K.

Citation: 2022 LiveLaw (JKL) 134

The Jammu and Kashmir and Ladakh High Court made it clear that a person exercising his or her rights that are ordained by the law cannot be said to have deterred the official duty of a public servant, who under a mistaken belief, tried to stop such exercise of rights.

Justice Sanjay Dhar observed:

"It can never be the duty of a public official to prevent a person from exercising his/her right which is sanctioned by law.

14) NI Act | Joint Petition In Respect Of Different Causes Of Action Not Maintainable: J&K&L High Court

Case Title: Naseer Ahmad Sheikh Vs Mohammad Sultan Bhat.

Citation: 2022 LiveLaw (JKL) 135

The Jammu and Kashmir and Ladakh High Court observed that a joint petition in respect of different causes of action is not maintainable.

"The instant petition is not otherwise maintainable as through the medium of instant petition, the petitioner has challenged as many as four complaints and four separate orders directing issuance of process against him by the trial court. A joint petition in respect of different causes of action is not maintainable. On this ground also, the petition deserves to be dismissed," Justice Sanjay Dhar observed.

15) Appeal Against Conviction By Sessions Court Would Lie Before Division Bench Of HC If Sentence Running Consecutively Exceeds 10 Yrs: J&K&L High Court

Case Title: Mushtaq Ahmad Peer v/s State of J&K

Citation: 2022 LiveLaw (JKL) 136

The Jammu and Kashmir High Court made it clear an appeal against conviction by Sessions Court would lie before a Division Bench of the High Court, where the sentence of imprisonment awarded exceeds 10 years. However, the appeal would be heard and decided by a Single Judge, if the sentence is less than 10 years.

16) 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.

17) 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.

18) 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.

19) 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.

20) 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.

21) 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."

22) 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".

23) 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"

24) 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.

25) 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.

26) 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.

27) 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

28) 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.

29) 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.

30) 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.

31) 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."

32) 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.

33) 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.

34) 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.

35) 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

36) 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

37) 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.

38) 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".

39) 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.

40) Order XLI Rule 3-A CPC | Failure To File Appeal With Application For Condonation Of Delay A Curable Defect Can Be Filed Subsequently: J&K&L High Court

Case Title :Bashir Ahmad Bhat Vs Ghulam Ahmad Bhat

Citation : 2022 LiveLaw (JKL) 160

The Jammu and Kashmir and Ladakh High Court while answering a question as to what are the consequences if an appeal is not accompanied by an application as mentioned in Subrule (1) of Rule 3A in Order 41 of CPC observed,

"The Deficiency of not accompanying application for condonation of delay is curable defect and if required such an application can be filed subsequently and the appeal can be treated as presented in accordance with the requirem Rule 3A of Order XLI CPC".

41) Black Money Stashed Abroad Threatens National Security : J&K&L High Court

Case Title: Tabasum Mir Vs Union of India

Citation: 2022 LiveLaw (JKL) 161

The Jammu and Kashmir and Ladakh High Court observed that money stashed abroad by evading tax could be used in ways which could threaten national security.

The division bench of Justices Ali Mohammad Magrey and M.A Chowdhary observed that tax evasion puts a disproportionate burden on the honest taxpayers as they have to bear the brunt of higher taxes to make up for the revenue leakage caused by the evasion.

The court added that stashing away of black money abroad by some people with the intent to evade taxes has been a matter of deep concern to the nation.

42) Electrocution: High Court Orders J&K Admin To Pay Over Rs 24 Lakh Compensation To Victim's Family

Case Title: Saleema Begum & Ors Vs State of J&K

Citation : 2022 LiveLaw (JKL) 162

The Jammu & Kashmir and Ladakh High Court directed the Jammu and Kashmir administration to pay over Rs 24 lakh as compensation to the family of a person who died due to electrocution after an 11,000 KV line fell on his head in north Kashmir's Uri area in July 2013.

"The respondents being the managers of the electric supply of the area were duty bound in law to ensure that the requisite measures are in place to prevent the leakage, loss of such energy or to see that the wire snapped would not remain live on the road to endanger the lives of the people," said the court.

43) Suspension For Alleged Misconduct Not Punishment But Prolonged Suspension Amounts To Punishment: J&K&L High Court

Case Title: UT of J&K Vs Hilal Ahmad Rather

Citation: 2022 LiveLaw (JKL) 163

The High Court of J&K and Ladakh held that suspension of an employee over alleged misconduct is not a punishment but, if the suspension is prolonged for more than 4 years, then it amounts to punishment, as it has very strong stigmatic social connotations.

The court observed that from the perusal of the order of suspension, it was clear that the inquiry was required to be completed within 15 days, "which itself proves beyond any shadow doubt that the State was conscious of the seriousness and urgency involved in the matter, yet they slept over the matter for four long years to initiate an inquiry by way of issuing chargesheet to the delinquent".

44) Forced Labour Prevalent Even After 75 Years Of Independence': J&K&L High Court On Class-IV Employee's Rs 500 Annual Wage

Case Title : Sanjay Kumar Vs State of J&K and others

Citation : 2022 LiveLaw (JKL) 164

The Jammu and Kashmir and Ladakh High Court ruled that the payment of wages at the rate of Rs. 500 per year since 1998 to a government school employee is clearly a form of Forced Labour, which is strictly prohibited under Article 23 of the Constitution of India.

"This Court being a custodian of the fundamental rights cannot shut its eyes to the injustice carried out against the petitioner by an act of the State, which claims to achieve socio economic equality as the cherished dreams of the Constitution," said a single bench in an order dated September 19.

45) [Public Safety Act] State's Apprehension Of Accused Getting Bail In Criminal Case Cannot Lead To Preventive Detention: J&K&L HC

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

Citation: 2022 LiveLaw (JKL) 165

The Jammu and Kashmir and Ladakh High Court, while quashing a preventive detention order, observed that offence of cheating and fraud, without having wider ramifications, cannot be made the basis for issuing a detention order in the name of maintaining public order.

"Unless the criminal act attributed to the detenue has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "Law and order" and thus cannot be made the basis of preventive detention", the bench added.

46) Mere Reinstatement Into Service Without A Clean Chit In Departmental Inquiry Not Ground To Quash Criminal Proceedings: J&K&L High Court

Case Title: Prem Nath & Ors Vs State of J&K

Citation: 2022 LiveLaw (JKL) 166

The Jammu and Kashmir and Ladakh High Court held that mere reinstatement into service without a clean chit in departmental inquiry is not a ground to quash criminal proceedings emanating from the set of allegations.

The bench of Justice Sanjay Dhar observed,

"It is clear that the petitioners, who were associated with the project, have not been given a clean chit, but their roles have come under scanner...merely because the petitioners have been reinstated pursuant to the departmental enquiry, does not mean that they can not be prosecuted for criminal offences."

47) Passenger Injured On Account Of Mine Blast Entitled To Compensation Under Motor Vehicle Act: J&K&L High Court

Case Title :State of J&K & Ors Vs Mir Fathima

Citation : 2022 LiveLaw (JKL) 167

The Jammu and Kashmir and Ladakh High Court ruled that even if the cause of accident is remote or as a result of subversive activity involved, the victim is entitled to grant of compensation under Motor Vehicle Act.

"The death of the deceased had taken place due to use of the vehicle and the same cannot be said that the land mine blast can divest the accident from the use of the vehicle. The appellants being functionaries of the law and order in the State knew it very well that planting of land mine was the order of the day in those days particularly the security vehicles being the target", the bench observed.

48) Consent Decree Must Not Be Used For Avoiding Registration Of Sale Deeds, Paying Stamp Duty: J&K&L High Court

Case Title :Mushtaq Ahmad Pandit Vs Addl Deputy Commissioner & Ors

Citation : 2022 LiveLaw (JKL) 168

The Jammu and Kashmir and Ladakh High Court cautioned the civil courts that while exercising their jurisdiction utmost care should be taken to ensure that a consent decree is not sought to achieve sinister purposes like avoiding registration of sale deeds or paying stamp duty.

"A collusive decree cannot be used as a cloak for the sale deed. There could be numerous occasions where parties in collusion with each other may approach the civil Courts for passing the decrees in contravention of law and for achieving the unlawful objects," Justice Sanjeev Kumar observed.

49) S.12 DV Act | Magistrate Can Revoke Summons Based On Response Filed By Husband/ Relatives: J&K&L High Court

Case Title : Mohd Hussain Vs Shabnam Ara

Citation : 2022 LiveLaw (JKL) 169

The Jammu and Kashmir and Ladakh High Court ruled that a Magistrate would be well within its jurisdiction to cancel the interim order passed by it under Section 12 of the Domestic Violence Act, if upon going through the response of the husband and his relatives, it finds that they have been unnecessarily roped in or no case for grant of interim order is made out.

"The Magistrate would be well within his jurisdiction to cancel the interim order passed by him, if upon going through the response of the husband and his relatives, he finds that they have been unnecessarily roped in or no case for grant of interim order is made out. Since the proceedings under Section 12 of the D.V.Act are not, in strict sense, criminal in nature, as such, bar to alter/revoke an order by a Magistrate is not attracted to these proceedings," Justice Sanjay Dhar explained.

50) J&K Evacuees Property Act | Tribunal Competent To Exercise Powers Of Revision Against Orders Of Custodian General U/S 30-A: J&K&L HC

Case Title :Custodian General Vs J&K Special Tribunal

Citation : 2022 LiveLaw (JKL) 170

Determining several important legal questions pertaining to the cases under the Evacuees Property Act, the Jammu and Kashmir and Ladakh High Court held that J&K Special Tribunal can exercise powers of revision against the orders passed by the Custodian General, Evacuee Property.

"It is emphatically clear that the Minister Incharge of the Evacuee's Property may, at any time, call for the record of any proceeding in which any Custodian or Custodian General has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit" Justice Wasim Sadiq Nargal observed.