J&K&L High Court Quarterly Digest: July To September 2022 [Citations 52 - 170]

Shabir Ahmad Yatoo. Vs. UT of J&K and Ors. 2022 LiveLaw (JKL) 52

Anita Mehta VS Gulkand Hues Private Ltd., & another 2022 LiveLaw (JKL) 53

UT of J&K and others VS Mohammad Latief Magrey & another 2022 LiveLaw (JKL) 54

Taja Begum & Ors Vs UT of J&k 2022 LiveLaw (JKL) 55

Sunny Gupta v Union Territory of J&K and ors 2022 LiveLaw (JKL) 56

Eapen Chakoo Vs UT of J&K 2022 LiveLaw (JKL) 57

Vessu Welfare Committee and ors. v Relief & Rehabilitation Commissioner 2022 LiveLaw (JKL) 58

Amit Kumar Gupta v. UT of Jammu and Kashmir through SHO PS Mendhar 2022 LiveLaw (JKL) 59

Hanifa Deva and Others & Arshad Hussain and Others v Director SKIMS 2022 LiveLaw (JKL) 60

Peerzada Rafiq Maqdoomi Vs. Union Territory of J&K 2022 LiveLaw (JKL) 61

Ishfaq Ahmad Khan v. State of J&K & Ors. 2022 LiveLaw (JKL) 62

Jaffar Hajam Mohd Abbas and ors. V/s Chairman and Managing Director, FCI & ors 2022 LiveLaw (JKL) 64

Sanjay Kumar Srivastava & Ors. Vs. Central Bureau Of Investigation 2022 LiveLaw (JKL) 66

Faizan Amin and another V/s UOI and another 2022 Livelaw (JKL) 69

Fayaz Ahmad Sheikh Vs. Mushtaq Ahmad Khan 2022 LiveLaw (JKL) 73

Sanjeev Kumar vs Union of India. Citation: 2022 LiveLaw (JKL) 75

Ghulam Mohammad Naikoo vs Abdul Qayoom Wani 2022 LiveLaw (JKL) 76

State of J&K through P/S Bandipora Vs Hilal Ahmad Parray. 2022 LiveLaw (JKL) 77

Raisa Banoo vs Mst. Shameema & Ors 2022 LiveLaw (JKL) 78

Zubair Ahmad Teli Vs UT of J&K 2022 LiveLaw (JKL) 79

Muzamil Butt Vs State Of J&K 2022 LiveLaw (JKL) 80

Rouf Majid Naqash Vs SHO P/S Womens Wing 2022 LiveLaw (JKL) 81

Ghulam Hassan Khanyari Vs Reyaz Ahmad Bhat& Ors 2022 LiveLaw (JKL) 82

Vakil Ahmad Dar Vs UT of J&K. 2022 LiveLaw (JKL) 83

Sonam Dolma Vs Bharat Sanchar Nigam Limited 2022 (JKL) 84

Meenakshi Chohan &Ors Vs Jammu Muncipal Corp & ors 2022 LiveLaw (JKL) 85

Junaid Hassan Masoodi Vs UT of J&K 2022 LiveLaw (JKL) 86

Neena Gupta Vs UT of Ladakh 2022 LiveLaw (JKL) 87

Anis Ahmad Chaudhary Vs State of J&K 2022 LiveLaw (JKL) 88

M/s Manu Mohit Industries Vs State of J&k & Ors. 2022 LiveLaw (JKL) 89

Ashish Damija Vs UT of J&K 2022 LiveLaw (JKL) 90

Nazir Ahmad Parra Vs UT of J&K. 2022 LiveLaw (JKL) 91

Sadat Hussain Vs State of J&K 2022 LiveLaw (JKL) 92

Rakesh Kumar Chaudhary Vs Union of India. 2022 LiveLaw (JKL) 93

Abdul Qayoom Bhat Vs Danish Ul Islam & Ors 2022 LiveLaw (JKL) 94

Davinder Sharma Vs CBI 2022 LiveLaw (JKL) 95

J&K PSC Vs Dr Rajeev Gupta 2022 LiveLaw (JKL) 96

Dr Lahoot Hassan & Ors Vs SHO Vigilance Organization Kashmir 2022 LiveLaw (JKL) 97

Ishfaq Ahmad Najar Vs State of J&K 2022 LiveLaw (JKL) 98

Mashooq Ahmad Beigh Vs UT of J&K 2022 LiveLaw (JKL) 99

Raaisha Vs Syed Sudhanshu Pandey 2022 LiveLaw (JKL) 100

State of J&K Vs Mushtaq Ahmad Naik & Ors. 2022LiveLaw (JKL) 101

Arshad Hussain Vs General Officer Commanding 56 APO 2022 LiveLaw (JKL) 102

Adnan Hassan Khan & Ors Vs Irshad Ahmad Kamili 2022 Live Law (JKL) 103

Latief Ahmad Rather Vs Shafeeqa Bhat 2022 LiveLaw (JKL) 104

Ram Charan Singh Vs Ranjyoti Singh 2022 LiveLaw (JKL) 105

Majid Nabi Khan Vs Executive Officer MC Bijbehara 2022 LiveLaw (JKL) 106

Darshan Singh Vs Indru Devi 2022 LiveLaw (JKL) 107

Tanveer Ahmad Khan Vs JK BOSE 2022 LiveLaw (JKL) 108

Abdul Rehman Dar Vs Tariq Ahmad Wagay 2022 LiveLaw (JKL) 109

Ghulam Mohd Mir Vs Tej Krishan Ganjoo & Ors 2022 LiveLaw (JKL) 110

Mohammad Shafi Wani Vs Noor Mohammad Khan 2022 LiveLaw (JKL) 111

Showkat Ahmad Bhat & others Vs Khazir Mohammad Bhat & others 2022 LiveLaw (JKL) 112

Faheem Sultan Gojree V/s UT of J&K and another 2022 LiveLaw (JKL) 113

Sakib Ahmad Sheroo Vs UT of J&K & Ors 2022 LiveLaw (JKL) 114

United Insurance Co Ltd Vs Jawahira Begum &Ors 2022 LiveLaw (JKL) 115

Reyaz Ahmad Dar V/s U.T. of J&K and another 2022 LiveLaw (JKL) 116

Managing Director J&K SRTC Vs Syed Arshad Tramboo & Ors 2022 LiveLaw (JKL) 117

National Insurance Co Ltd Vs Mushtaq Ahmad Kutary 2022 LiveLaw (JKL) 118

Jalal Ud Din Ganai Vs UT of J&K 2022 LiveLaw (JKL) 119

Bashir Ahmad Dada & Ors Vs Ghulam Mohi Ud Din 2022 LiveLaw (JKL) 120

State Through P/S Zainapora Vs Zia Mustaffa 2022 LiveLaw (JKL) 121

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

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) "Right To Property Is Basic Human Right": J&K&L High Court Imposes ₹10 Lakh Penalty On Govt. For "Forcibly" Taking Over Private Land

Case Title: Shabir Ahmad Tatoo Vs UT Of J&K

Citation: 2022 LiveLaw (JKL) 52

The division bench of J&K&L High Court comprising Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani held "It is well recognized that Right to Property is a basic human right which is akin to a fundamental right as guaranteed by Article 300 A of the Constitution of India and that no one can be deprived of his property other than by following procedure prescribe in law."

2) Non-Filing Of Application U/S 8 Arbitration Act Before Civil Court Does Not Debar Party From Seeking Appointment Of Arbitrator: J&K&L High Court

CaseTitle: Anita Mehta vs Gulkand Hues &Ors

Citation: 2022 LiveLaw (JKL) 53

The Jammu and Kashmir and Ladakh High Court reiterated that non-filing of an application under Section 8 of the Arbitration and Conciliation Act would not mean that the petitioner has surrendered to the jurisdiction of the court and left the right to get the disputes resolved through arbitration so as to debar the petitioner for seeking appointment of an arbitrator through the intervention of the Court.

3) Hyderpora Encounter: J&K&L High Court Allows Amir Magrey's Family To Perform Fatiha Khawani At His Grave, Upholds ₹5 Lakh Compensation For Kin

Case Title: UT of J&K Vs Mohammad Latief Magrey &Ors.

Citation : 2022 LiveLaw (JKL) 54

The Jammu and Kashmir and Ladakh High Court today directed the UT administration to allow the family of Amir Magrey, the fourth person killed in Hyderpora Encounter, to perform Fatiha Khawani (religious rituals/prayers after burial) at his grave.

The bench observed "the said right of burial and performance of last religious rituals of deceased available to the family members could not have been denied."

4) Presumption Of Innocence U/S 3(i) Juvenile Justice Act Not Applicable To Adult Co-Accused': J&K&L High Court

Case Title: Taja Begum & Ors Vs UT of J&k

Citation: 2022 LiveLaw (JKL) 55

The Jammu and Kashmir and Ladakh High Court made it clear that the presumption of innocence in favour of a juvenile under Section 3(i) of the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be applied to the adult co-accused in a crime.

The bench of Justice Dhar rejected the contention raised by the Petitioners herein (co-accused with the juvenile) that since the main accused, being a juvenile, is to be presumed free of any malafide intent, the petitioners cannot be roped in by invoking the provisions contained in Section 34 of the IPC.

5) Judges Must Refrain From Making Derogatory Remarks Against Parties Unless Absolutely Necessary For Deciding Case: J&K&L High Court

Case Title: Sunny Gupta v Union Territory of J&K and ors

Citation: 2022 LiveLaw (JKL) 56

Justice Mohan Lal of J&K&L High Court ruled that Judges hold a "powerful seat" which must not be misused by indulging in intemperate comments, undignified banter or scathing criticism. "It is the general principle of highest importance to the proper administration of justice that derogatory remarks are not to be made against persons unless absolutely necessary for decision of the case to animadvert on their conduct."

6) Merely Because S.482 CrPC Does Not Prescribe Limitation Period Does Not Mean Parties Can Approach Court With Inordinate Delay: J&K&L High Court

Case Title: Eapen Chakoo Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 57

J&K&L High Court held held that a party cannot approach the High Court under Section 482 of the CrPC at his whim and caprice merely because no period of limitation in filing the petition under the aforesaid provision is provided.

A petition under Section 482 of the CrPC must be filed within a reasonable time and it should not be vitiated by inordinate delay and laches on the part of the petitioner, the bench comprising Justice Sanjay Dhar observed.

7) J&K&L High Court Directs Immediate Eviction Of Unauthorised Occupants Of Newly Constructed Quarters

Case Title: Vessu Welfare Committee and ors. v Relief & Rehabilitation Commissioner

Citation: 2022 LiveLaw (JKL) 58

The bench comprising Justice Sanjeev Kumar observed that "Such lawlessness, if permitted by Courts, will lead to chaos in the society which, in turn, would put the rule of law in peril. It is, thus necessary for the police power of the State to come heavily on those for whom the breach of law is like playing with a toy. They think that they will commit the offence of criminal trespass and get away with it by coining excuses like the poor conditions of their prefab accommodation.

8) Person Who Is Absconding And Evading Execution Of A Warrant Not Entitled To Anticipatory Bail: J&K&L High Court

Case title - Amit Kumar Gupta v. UT of Jammu and Kashmir through SHO PS Mendhar

Case Citation: 2022 LiveLaw (JKL) 59

The Jammu and Kashmir and Ladakh High Court has observed that a person against whom a warrant who is absconding and evading the execution of a warrant, is not entitled to the concession of anticipatory bail.

The Bench of Justice Javed Iqbal Wani observed thus while denying pre-arrest bail to one Amit Kumar Gupta who has been booked for offences punishable under Section 304/34 IPC.

9) Classification Based On 'Educational Qualification' For Promotion Not Violative Of Article 14&16 Of Constitution: J&K&L High Court

Case Title: Hanifa Deva and Others & Arshad Hussain and Others v Director

Citation: 2022 LiveLaw (JKL) 60

A bench of Justice Sanjeev Kumar held that the prescription of higher qualification for promotion to a superior post from a subordinate one is essentially for efficient discharge of duties of the said higher post and as a result, nothing prevents an employer to prescribe higher technical qualification for the purpose of promotion to the next higher post.

10) Further Investigation U/S 173(8) CrPC Not Ground To Seek Default Bail If Charge Sheet Filed Is Sufficient To Take Cognizance: J&K&L High Court

Case Title : Peerzada Rafiq Maqdoomi Vs. Union Territory of J&K

Citation: 2022 LiveLaw (JKL) 61

The Jammu and Kashmir and Ladakh High Court today held that the test to be applied while considering a plea for default bail in terms of Section 167(2) CrPC, in a case where charge sheet is laid with a stipulation that further investigation is to be conducted in terms of Section 173(8) CrPC, is that whether affirmative action of taking cognizance and consideration of charge / discharge can be taken, on the basis of the charge sheet laid.

11) Repeated Sexual Activity With 9 Yr Old Child Not Possible Sans Any Injury In Vaginal/ Genital Area: JKL HC Sets Aside Rape Conviction

Case Title: Ishfaq Ahmad Khan v. State of J&K & Ors.

Citation: 2022 LiveLaw (JKL) 62

A bench comprising Justice M A Chaudhary observed repeated sexual activity on a 9 year old child is not possible without any injury in the vaginal /genital area.

The Court also noted that though accused could be held guilty for the commission of offence of rape based on the solitary evidence of the prosecutrix, howeever the same must inspire confidence and should appear to be absolutely trustworthy, unblemished and should be of sterling quality.

12) Offences Alleged Against A Person Must Fall Within Realm Of Disturbing "Public Order" To Warrant Preventive Detention: J&K&L High Court Reiterates

Case Title: Kamaljeet Singh Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 63

A single bench of Justice Rajnesh Oswal held that a detention order passed by a competent authority under Sec 8(1) of J&K Public Safety Act on the ground of disturbance of law & order situation is not sustainable in law as the said provision clearly prescribes "prejudicial to Public order" as a ground to issue detention orders.

The bench further observed that a person may be detained under preventive detention laws provided the case falls within the parameters of law laid down under the Act and the perusal of detention order reveals that in all the FIRs, the allegations against the petitioner are with regard to the commiss ion of offences those do not fall within the realm of "public order" as defined by section 8(3) of the Act.

13) Employment Conditions Can't Take Away Employees' Right To Seek Judicial Review Of Employer's Actions: J&K&L High Court

Case Title: Jaffar Hajam Mohd Abbas and ors. V/s Chairman and Managing Director, FCI & ors

Citation: 2022 LiveLaw (JKL) 64

The court held that the right to seek judicial review is a vital right conferred by the Constitution and any terms and conditions of employment, which restrain a person to seek legal remedies for enforcement of his rights, are null and void. employer cannot impose such conditions of employment which have the effect of taking away the right of its employees to seek judicial review of the actions of the employer, the bench of Justice Sanjeev Kumar underscored.

14) Pre-Condition Of Filing Complaint U/S 138 NI Act Not Fulfilled When Statutory Notice Of Demand Sent On Wrong Address: J&K&L High Court

Case Title: Enigineering Control Vs. Banday Infratech Pvt. Ltd

Citation: 2022 LiveLaw(JKL) 65

A bench of Sanjay Dhar ruled that an inference of having received the statutory notice of demand by a drawer of a cheque as mandated under Section 138 of Negotiable Instrument Act can be raised only if the notice has been dispatched to his correct address. Such an inference cannot be drawn if the notice has been sent on the incorrect address of the drawer of the cheque, the court observed.

15) Sanction For Prosecuting Public Servant Under PC Act Is Denied, Prosecuting Agency Can't File Challan Under Other Penal Laws On Same Facts: J&K&L HC

Case Title: Sanjay Kumar Srivastava & Ors. Vs. Central Bureau Of Investigation

Citation: 2022 LiveLaw (JKL) 66

The Jammu and Kashmir and Ladakh High Court held that once the Central Vigilance Commission after examining the material on record reaches a conclusion that no criminal offence is made out against the accused public servant and the said opinion is accepted by the competent authority, it is not open to the investigating agency to file a challan on the same set of facts against the accused public servant by dropping the offences under the provisions of Prevention of Corruption Act and confining the challan only to the offences under other penal provisions.

16) Doctrine Of Ejusdem Generis Not Automatically Applicable To Restrict Words Used In Statute If Legislative Intent Is Clear: J&K&L High Court

Case Title: Waseem Qureshi vs UT of J&K

Citation: 2022 LiveLaw (JKL) 67

The Jammu and Kashmir and Ladakh High Court held that the doctrine of "ejusdem generis" cannot be made automatically applicable to restrict the words used in a statute if otherwise intention of the legislature is clear. It is only in cases where intention of the legislature is clear that the general terms shall not be given broader meaning than required, the aforesaid doctrine will have applicability, Justice Sanjay Dhar recorded.

17) High Court Directs NIT Srinagar To Pay Rs 5 Lacs Compensation Over Unjustifiable Delay In Appointing Candidates Selected As Jr. Engineers

Case Title: Faizan Amin and another V/s UOI and another

Citation: 2022 LiveLaw (JKL) 68

The bench comprsing Justice Sanjeev Kumar took a strong note of the mushrooming growth in frivolous litigations and said: "To serve the cause of justice and to keep the stream of justice unsullied, it is imperative for the Courts to act tough and discourage the tendency of some litigants to misuse the process of law."

The court further observed: "Time has come to stay firm on frivolous litigation lest it will prevent the Courts from taking up good causes involving adjudication of vital constitutional and other statutory rights of the citizens. It would be no exaggeration to say that a major portion of Court time is wasted in hearing and weeding out frivolous litigation.

18) Courts Can't Expand Scope Of Qualification Prescribed By Employer By Reading Into It A Higher Qualification: J&K&L High Court

Case Title: Qazi Gousia Jeelani V/s Mehraj Ud Din Najar

Citation: 2022 LiveLaw (JKL) 69

A division bench comprising Justices Sanjeev Kumar and M A Chaudhary ruled that a person, to be eligible for a post, must possess the qualification prescribed for the post and it is not within the province of the Courts of law to read the higher qualification into the qualification prescribed in the rules or the advertisement as essential qualification.

19) J&K&L High Court Orders Probe By Anti-Corruption Bureau Into Leakage Of PSA Detention Order Even Before Its Execution

Case Title: Mohammad Yousaf vs Union Territory of J&K and other

Citation: 2022 LiveLaw (JKL) 70

A bench of Justice Rajnesh Oswal observed The court further observed that it is at a loss as to understand how the order of detention landed in the hands of the petitioner or his brother without there being any execution of the said detention order. In view of the gravity of the act, the Court directed the Director, Anti-Corruption Bureau, Union Territory of J&K to enquire the issue with regard to the connivance of the officials of the respondents with regard to fact as to how these documents landed with the detenu or his brother without execution of the detention order.

20) In Absence Of Criteria To Break A Tie, Selection Committee May Adopt Its Own Yardstick In Consonance With Article 14: J&K&L High Court

Case Title: Suhail Ahmad Wani V/s SKIMS Medical College Hospital and ors

Citation: 2022 LiveLaw (JKL) 71

The Jammu and Kashmir and Ladakh High Court ruled that in cases of recruitment or drawing of seniority lists where there is neither any statutor y prescription, nor any executive instructions laying down any criteria or guidelines to be followed to break the tie, the only course that is left with a Court adjudicating such matter is to look to the fairness and rationality of the selection process as also the criteria that ought to have been possibly applied to break the tie.

The bench also observed that preferring a candidate having better merit in the academics but not being older in age cannot, by any stretch of reasoning, be said to be unfair, irrational or arbitrary.

21) Anticipatory Bail Plea Not Maintainable By Person Already Enlarged On Bail As He Is Under Constructive Custody: J&K&L High Court

Case Title: Zubair Ahmad Wani Vs. Government Of J&K

Citation: 2022 LiveLaw (JKL) 72

A bench comprising Justice Sanjay Dhar ruled that a person released on bail is already construed to be the in constructive custody and if the law requires him to come back to custody for specified reasons, the application for anticipatory bail will not lie. There cannot be an apprehension of arrest by a person already in the constructive of the law.

Dismissing the bail application the bench observed bench observed that the proper course for the petitioner was to surrender before the Sessions Court and apply for grant of regular bail because he had already been arrested and pursuant to grant of interim regular bail, he was in constructive custody of the law.

22) Simultaneous Prosecution Of Accused U/S 420 IPC & S.138 NI Act On Same Set Of Facts Not "Double Jeopardy": J&K&L High Court

Case Title: Fayaz Ahmad Sheikh Vs. Mushtaq Ahmad Khan

Citation: 2022 LiveLaw (JKL) 73

The Jammu and Kashmir and Ladakh High Court ruled that the test to ascertain and uphold the fundamental right against "double jeopardy", which is guaranteed under Article 20(2) of the Constitution, is that whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials.

23) Pulwama Terror Attack: J&K&L High Court Dismisses Accused' Appeal Claiming 'Plea Of Juvenility'

Case Title: Waiz-ul-Islam Vs Union Territory of J&K through NIA Jammu

Citation: 2022 LiveLaw (JKL) 74

The division bench comprising Justices Rajnesh Oswal and Mohan Lal observed that if an offence is constituted of several acts and when the accused is major at a time when subsequent act is committed forming part of an offence, he c annot claim to be juvenile. Thus, this court has no hesitation to hold that the appellant was more than 18 years of age and was not juvenile at time of commission of offence.

24) Temporary Employees Also Protected Under Article 311 Of Constitution, Cannot Be Terminated Without Conducting Proper Enquiry: J&K&L High Court

Case Title: Sanjeev Kumar vs Union Of India

Citatition: 2022 LiveLaw (JKL) 75

The Jammu and Kashmir and Ladakh High Court today ruled that a temporary employee also stands protected under the provisions of Article 311 of the Constitution of India and cannot be terminated without conducting proper enquiry.

Observing that this court is within its powers to go beyond the orders the court held that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order.

25) Breach Of Contract | Dishonest Intention U/S 420 IPC Has To Be From Inception Of Transaction, Subsequent Conduct Not Sole Test: J&K&L High Court

Case Title: Ghulam Ahmad Naikoo vs Abdul Qayoom Wani.

Citation: 2022 LiveLaw (JKL) 76

A single bench of Justice Sanjay Dhar held a distinction has to be kept in mind between mere breach of contract and the offence of cheating and it depends upon the intention of the accused at time of inducement while the subsequent conduct is not the sole test.

The bench observed in order to commit an act of deception of fraud, which is gist of the offence under Section 420 of the RPC, the complainant must have been dishonestly inducted to deliver the property. To deceive is to induce a man to believe that a thing is true, which is false and which the person practicing the deceit knows or believes to be false. This intention of deception or fraud must be existent at the time of commission of the offence, the bench underscored.

26) UAPA | Only Special Court/Session Court Empowered To Decide Bail Applications, Judicial Magistrate Has No Jurisdiction: J&K&L High Court

Case Title: State of J&K through P/S Bandipora Vs Hilal Ahmad Parray

Citation: 2022 LiveLaw (JKL) 77

The Jammu and Kashmir and Ladakh High Court held that only the Special Court or in the absence of a Special Court, a Sessions Court exercising powers of a Special Court, can entertain and grant/refuse bail to a person accused of an offence under the provisions of Unlawful Activities Prevent Prevention Act. It further observed that a Judicial Magistrate has neither the jurisdiction to take cognizance of offences under the said Act nor he is vested wit with jurisdiction to try such offences or grant/refuse bail.

Sec 22 of the NIA Act is clear that the State Government has power to designate one or more Courts of Session as Special Courts for trial of offences and sub-section (3) of Section 22 takes care of a situation by prescribing that until a Special Court is constituted by the State Government, such powers be exercised by the Court of Session of the division in which such offence has been committed, the bench recorded.

27) Suits Against Govt | Refusal Of Interim Relief After Grant Of Leave To File Suit Without Notice U/S 80 CPC Does Not Require Return Of Plaint: J&K&L High Court

Case Title: Raisa Banoo vs Mst. Shameema & Ors

Citation: 2022 LiveLaw (JKL) 78

28) JJ Act | Enquiry U/S 15 By Juvenile Justice Board Not Mandatory Before Consideration & Grant Of Bail U/S 12: J&K&L High Court

Case Title: Zubair Ahmad Teli Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 79

The Jammu and Kashmir and Ladakh High Court held that there is no requirement of prior consideration of the social investigation report by JJ Board while considering a bail plea under section 12 of the Juvenile Justice Care and Protection Act, as that was never intended by the legislature.

A bench comprising Justice MA Chaudhary observed: "The primary assessment of a child in conflict with law is for further purpose of trial i.e., as to whether he should be tried by the Juvenile Justice Board or by the Children's Court. It will not curtail the power of the Juvenile Justice Board to consider the application filed under Section 12 of the J.J.Act, 2015"

29) Freedom Of Speech & Expression Does Not Permit A Person To Question The Status Of A Part Of The Country Or Its People: J&K&L High Court

Case Title: Muzamil Butt Vs State Of J&K.

Citation: 2022 LiveLaw (JKL) 80

A bench of Justice Snajay Dhar observed he freedom of speech and expression guaranteed under the Constitution cannot be stretched to such a limit as to allow a person to question the status of a part of the Country or its people. It is one thing to criticize the Government for its negligence and express outrage on the violation of human rights of the people but it is quite another to advocate that the people of a particular part of the Country are slaves of the Government of India or that they are under occupation of armed forces of the Country."

30) Pending Matrimonial Litigation Between Parties In UAE Not Ground To Quash Cruelty FIR Against Husband In Srinagar: J&K&L High Court

Case Title: Rouf Majid Naqash Vs SHO P/S Womens Wing

Citation: 2022 LiveLaw (JKL) 81

The Jammu & Kashmir & Ladakh High Court ruled that the proceedings for divorce or restitution of conjugal rights are of civil nature whereas the purpose of lodging of an FIR is to set the criminal law into motion, which is aimed at punishing the erring husband for his acts of cruelty. Therefore, merely because matrimonial litigation between the parties is going on at Sharjah would not be a ground to quash the impugned FIR," Justice Sanjay Dhar observed.

31) Order 6 Rule 4 CPC Cannot Be Invoked To Effect An Amendment In Written Statement: J&K&L High Court

Case Title: Ghulam Hassan Khanyari Vs Reyaz Ahmad Bhat& Ors

Citation: 2022 LiveLaw (JKL) 82

The Jammu & Kashmir & Ladakh High Court recently ruled that an application filed under the provisions of Order VI Rule 4 of Civil Procedure Code has tto be specific in exemplifying the details about allegations of misrepresentation, fraud or wilful default and this provision cannot be enlarged to effect an amendment.

32) Charge-Sheet Even In The State Of Its Photostat Copies Cannot Be Termed As 'Incomplete' For Grant Of Default Bail: J&K&L High Court

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

Citation : 2022 LiveLaw (JKL) 83

The Division bench of Jammu & Kashmir & Ladakh High Court held that a charge-sheet even in the form of its photostat copies when placed on record cannot be termed as incomplete charge-sheet for grant of default bail, for the reason that the original documents can be brought on record with the permission of the court and otherwise also their admissibility can be challenged during recording of evidence.

33) No Recovery Can Be Made From Pension If Employee's Promotion Was Not Based On Any Misrepresentation: J&K&L High Court

Case Title: Sonam Dolma Vs Bharat Sanchar Nigam Limited.

Citation: 2022 LiveLaw (JKL) 84

A division bench of J&K&L High Court ruled that in absence of any misrepresentation on the part of the petitioner with regard to factum of seeking her promotion, no recovery, whatsoever, can be made from her retirement benefit or for that matter her promotion cannot be withdrawn.

The bench of Justices Tashi Rabstan & Waseem Sadiq Nargal also observed bench observed that the pensioners are on a better footing than the in-service employees and such pensioners can seek a direction that wrong payment should not be recovered, as pensioners are in a more disadvantageous position when compared to in service employees, any attempt to recover an excesss wrong payment would cause undue hardship to them.

34) Right To Property May No More Be A Fundamental Right, But Its Sanctity As Human Right Is Still Intact: J&K&L High Court

Case Title: Meenakshi Chohan &Ors Vs Jammu Muncipal Corp & ors

Citation : 2022 LiveLaw (JKL) 85

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human rig right in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived f his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law.

35) Husband's Relatives Can't Be Dragged Into Matrimonial Disputes In Absence Of Specific Instances Of Their Involvement In Crime: J&K&L High Court

Case Title: Junaid Hassan Masoodi Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 86

The Jammu and Kashmir and Ladakh High Court ruled that in crimes pertaining to matrimonial disputes and dowry deaths the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.

These allegations are required to be carefully scrutinized before initiation of prosecution against the relatives of the husband and there being no mention of the specific instances of cruelty alleged to have been committed by the relatives of the husband in the instant case, the prosecution against them cannot be sustained, the bench noted.

36) S.18 Drugs & Cosmetics Act | Dealer/ Distributor Not Liable If He Acquires Drug From A Licensed Manufacturer: J&K&L High Court

Case Title: Neena Gupta Vs UT of Ladakh.

Citation: 2022 LiveLaw (JKL) 87

A bench of Justice Sanjay Dhar observed The Jammu and Kashmir and Ladakh High Court on Thursday held that a person, other than a manufacturer of a drug, cannot be held liable for contravention of Section 18 of the Drugs and Cosmetic Act if he shows that he has acquired the drug or cosmetic from a duly licensed manufacturer.

"Once it is shown from the material on record that the conditions mentioned in Section 19(3) of the Drugs and Cosmetics Act have been satisfied by the petitioners, they could not have been prosecuted by the respondent Drugs Inspector" the bench underscored.

37) J&K Prevention Of Corruption Act | Elaborate Reasons Not Necessary While Issuing Entrustment Orders: High Court

Case Title: Anis Ahmad Chaudhary Vs State of J&K

Citation: 2022 LiveLaw (JKL) 88

The Jammu and Kashmir and Ladakh High Court ruled that merely because elaborate reasons have not been given in the entrustment orders pass ed by the Superintendent of Police to delegate investigation to an inspector level officer, it cannot be said that the provisions of J&K Prevention of Corruption Act have not been complied with.

38) Industrial Tribunal's Order Can't Be Challenged On Disputed Questions Of Facts Under Article 226: J&K&L High Court

Case Title: M/s Manu Mohit Industries Vs State of J&k & Ors.

Citation: 2022 LiveLaw (JKL) 89

The Jammu & Kashmir and Ladakh High Court observed that an order passed by Industrial Disputes Tribunal/ Labour Court on disputed questions of fact cannot be challenged by way of a petition under Article 226 of the Constitution.

"If the challenge is limited only to the correctness or otherwise of the award, then it has to be considered that the power under Article 227 of Constitution has been invoked because the cause has not been initiated for the first time before the High Court," Justice Wasim Sadiq Nargal said.

39) No Vicarious Liability Under Criminal Law Unless Strictly Mandated By Statute: J&K&L High Court

Case Title: Ashish Damija Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 90

The Jammu and Kashmir and Ladakh High Court on Friday ruled that in criminal law, there is no concept of criminal vicarious liability and it is only if there is a statute which makes a person vicariously liable for the acts of another person that such a person can be prosecuted for a criminal offence.

"One such example is the provision contained in Section 34 of the Drugs and Cosmetic Act whereby the persons incharge of and responsible for the conduct of business of the company are made vicariously liable for the offences committed by the company" Justice Dhar observed.

40) Magistrates Can't Forward Original Complaints To Police, May Amount To Destruction Of Court Records: J&K&L High Court

Case Title: Nazir Ahmad Parra Vs UT of J&K.

Citation: 2022 LiveLaw (JKL) 91

The Jammu & Kashmir and Ladakh High Court ruled that a Judicial Magistrate may face administrative action as well as charge for destroying the record of the Court if any application, whether civil or criminal, received by the court is not properly diarized and registered.

Justice Sanjay Dhar observed that the applications in original are being sent by the Judicial Magistrates to the police stations with endorsements instead of sending a copy of order and thhe copy of such applications to the police concerned. By acting in this manner, the court said, the Magistrates are destroying the record of the Court.

41) Police Not "Boss" Of Public Administration; Can't Investigate Complaints Without Registering FIR/ Entering Into Formal Process: J&K&L High Court

Case Title: Sadat Hussain Vs State of J&K.

Citation: 2022 LiveLaw (JKL) 92

A bench of Justice Rahul Bharti observed, "In case any public servant is to be subjected to a surveillance mode by a rank holder police official on the pretext of a complaint received without first entertaining the said complaint into a formal process, then surely the very confidence of the public servant in acting and doing his duty will be subjected to a paralysis".

42) Failure To Mention Blacklisting As A Probable Action Does Not Disable Tenderer From Blacklisting The Delinquent Bidder: J&K&L High Court

Case Title: Rakesh Kumar Chaudhary Vs Union of India.

Citation: 2022 LiveLaw (JKL) 93

The Jammu and Kashmir and Ladakh High Court ruled that failure to mention blacklisting to be one of the probable actions that could be taken against the delinquent bidder does not, by itself, disable the Govt from blacklisting a delinquent bidder, if it is otherwise justified.

Fraud vitiates every solemn proceeding and, therefore, a person indulging in the same cannot claim any right on the basis of technicalities, concluded Justice Sindu Sharma.

43) CrPC | Order Of Maintenance Does Not Get Wiped Out Because Of Settlement During Pendency Of Execution Proceedings: J&K&L High Court

Case Title: Abdul Qayoom Bhat Vs Danish Ul Islam & Ors.

Citation : 2022 LiveLaw (JKL) 94

The Jammu and Kashmir and Ladakh High Court held that merely because a settlement has taken place between warring spouses during the pendency of execution proceedings, the order of maintenance passed by a Magistrate under Section 488 of J&K CrPC does not get wiped out if the settlement does work.

The fact that the respondents may have resided with the petitioner during the period the settlement was in operation, is immaterial as the order of maintenance remained only suspended and the same was not wiped out but got revived retrospectively after the failure of the settlement, the court concluded.

44) Even If Prima Facie Case Is Established, Bail Overrides Pre-Trial Punishment: J&K&L High Court

Case Title: Davinder Sharma Vs CBI

Citation: 2022 LiveLaw (JKL) 95

The Jammu and Kashmir and Ladakh High Court ruled that even if prima facie case is established against an accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment as pre-trial punishment as the same clearly falls foul of the principles of criminal jurisprudence.

45) Article 226 | Laws Of Pleadings Don't Go Missing In Writ Petitions; Locus Standi Essential To Maintain Writs: J&K&L High Court

Case Title: J&K PSC Vs Dr Rajeev Gupta

Citation: 2022 LiveLaw (JKL) 96

The Jammu and Kashmir and Ladakh High Court comprising Justices Sindhu Sharma and Rahul Bharti recently ruled that 'Law of Pleadings' does not go missing when it comes to the matter of maintaining a writ petition before the High Court and it does not recognize any exception for an individual or an institution coming as a petitioner.

"The fact remains that the writ petition is divorced of the elementary pleading as to the locus standi of the petitioner J&K PSC in assailing the impugned judgment of the Central Administrative Tribunal Jammu Bench which is surely not affecting or meaning to affect any legal/statutory/constitutional right and status of the petitioner J&K PSC", the bench recorded.

46) Limitation Act | Sufficient Cause U/S 5 Of Must Be Liberally Constructed So As To Advance Substantive Justice: J&K&L High Court

Case Title: Dr Lahoot Hassan & Ors Vs SHO Vigilance Organization Kashmir

Citation: 2022 LiveLaw (JKL) 97

The Jammu and Kashmir and Ladakh High Court ruled that the expression "sufficient cause" under Sec 5 of Limitation Act has to be given liberal construction and the Courts while considering the delay in filing appeal have to avoid technicalities so that merit is preferred and scuttling of decision on merits is avoided.

The expression "sufficient cause" used in the provision must receive a liberal construction so as to advance substantial justice and unless there is gross negligence or deliberate inaction or lack of bonafides attributable to the parties seeking condonation of delay, such a prayer should not be declined, Justice Sanjay Dhar underscored.

47) Provisions Of J&K Juvenile Justice Act 2013 Retrospective, Age Of Juvenility Is 18 Yrs & Not 16: High Court

Case Title: Ishfaq Ahmad Najar Vs State of J&K

Citation: 2022 LiveLaw (JKL) 98

The Jammu and Kashmir and Ladakh High Court comprising Justice Sanjay Dhar ruled that the provisions of J&K Juvenile Justice Act 2013 are retrospective in nature and accordingly the age of juvenility has to be taken as 18 years and not 16 years, which was the age of juvenility under the Act of 1997, even though that was in force at the time of commission of the alleged occurrence.

48) Deep Appreciation Of Facts Not Required At Stage Of Framing Charges: J&K&L High Court

Case Title: MASHOOQ AHMAD BEIGH v UNION TERRITORY OF J&K & ORS

Citation: 2022 LiveLaw (JKL) 99

A single bench of J&K&L High Court observed that It is a settled law that while considering the case for charge or discharge of an accused, the court is not required to enter into deeper appreciation of the facts.

Justice Sanjay Dhar further observed that at the stage of framing of charge, the court has only to consider the material for framing opinion as to whether prima facie offence is committed which would require the accused to be put on trial. A strong suspicion is enough to suggest commission of offence by an accused.

49) Sec 125 CrPC | Grant Of Maintenance To Child Can Wait Till Veracity Of Claim Is Ascertained In Cases Of Disputed Paternity: J&K&L High Court

Case Title: Raaisha Vs Syed Sudhanshu Pandey

Citation: 2022 LiveLaw (JKL) 100

The Jammu and Kashmir and Ladakh High Court ruled that grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 of CrPC but, when the paternity of a child is seriously disputed it would not be prudent for a Magistrate to fasten the liability of maintaining the child without first ascertaining the veracity of the claims.

50) Years Of Service Alone Does Not Entitle A Daily Wager To Regularization, Eligibility To The Post Paramount Consideration: J&K&L High Court

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

Citation 2022 LiveLaw (JKL) 101

The High Court of Jammu & Kashmir and Ladakh ruled that the completion of seven years of continuous service alone would not entitle a daily wager for regularization, unless other eligibility conditions were fulfilled.

"A Daily Rated Worker would become eligible for regularization on fulfilment of all the conditions as contained in Rule 4 of the provisions of SRO 64. Completion of seven years of continuous period of daily wage service alone thus would not entitle a daily wager for regularization unless such daily wager fulfills other eligibility conditions," the bench underscored.

51) Party Seeking Appointment Of Arbitrator U/S 11(6) Must Demonstrate Failure By Other Party In Following Procedure: J&K&L High Court

Case Title: Arshad Hussain Vs General Officer Commanding 56 APO

Citation: 2022 LiveLaw (JKL) 102

The Jammu and Kashmir and Ladakh High Court ruled that a party seeking appointment of an arbitrator through the intervention of the court must demonstrate that there was a failure by the other party in following the procedure and accepting the request for the appointment of an arbitrator before approaching the court.

"In the absence of such a notice, demand for arbitration and the mentioning of the specific dispute which require adjudication it cannot be said that there actually exists any arbitral dispute between the parties which is referable to arbitration", Chief Justice Pankaj Mithal recorded.

52) Criminal Complaint Should Not Merely Mention Section & Its Language, Must Disclose Particulars Of Offences & Role Played By Each Accused: J&K&L HC

Case Title: Adnan Hassan Khan & Ors Vs Irshad Ahmad Kamili

Citation: 2022 LiveLaw (JKL) 103

Justice Sanjay Dhar Of J&K&L High Court observed that in order to lodge a proper complaint, mere mention of the sections and language of these sections is not all that is needed. What is required to be brought to the notice of the court is the particulars of the offences committed by each and every accused and the role played by each and every accused in commission of those offences...Unless specific allegations are made against the accused, it cannot be stated that they are involved in the alleged offences, the bench underscored.

53) Bench Not Superior To Bar: J&K&L High Court Expunges Magistrate's Remarks Against Advocates

Case Title: Latief Ahmad Rather Vs Shafeeqa Bhat

Citation: 2022 LiveLaw (JKL) 104

The Jammu and Kashmir and Ladakh High Court observed that the advocates are the officers of the Court and deserve the same respect and dignity as is being given to the Judicial Officers and Presiding Officers of the Courts.

Justice Sanjay Dhar observed "Bench and Bar are two wheels of the chariot of justice. Both are equal and no one is superior to the other. The members of the Bar, as such, deserve the utmost respect and dignity."

54) Non-Incorporation Of Finer Elements Of Pleadings In A Petition Under Motor Vehicles Act Not Necessarily Fatal For Claimant: J&K&L High Court

Case Title: Ram Charan Singh Vs Ranjyoti Singh

Citation: 2022 LiveLaw (JKL) 105

The Jammu and Kashmir and Ladakh High Court ruled that the finer elements of the pleadings, which are required to be mentioned in proceedings like a civil suit, if not incorporated in a claim petition filed under the provisions of the Motor Vehicles Act will not necessarily prove fatal for the claimant.

"The sum and substance of the claim petition should be gauged and not the phrasing of the claim petition in order to do justice in the case. The pedantic approach in this regard can deprive the petitioner of compensation which may be otherwise due to the claimant. That cannot be the legislative intent behind the provisions of the Motor Vehicles Act", the bench recorded.

55) Judges Can't Overstep Defined Jurisdiction & Expose Administration Of Justice To Individualistic Whims & Fancies: J&K&L High Court

Case Title: Majid Nabi Khan Vs Executive Officer MC Bijbehara

Citation: 2022 LiveLaw (JKL) 106

The Jammu and Kashmir and Ladakh High Court ruled that Section 107 and 108 read with Order 43 Rule 2 CPC does not empower an appellate court to mutate the very script of the suit before the trial court and create a new fact situation alien to the original lis and proceed on to carry forward its own perception-based outcome to a given civil suit.

56) Order 39 Rule 7 CPC | Commissioner's Report Is Not The "Final Word" & Is Subject To Parties' Objections: J&K&L High Court

Case Title: Darshan Singh Vs Indru Devi

Citation: 2022LiveLaw (JKL) 107

The Jammu and Kashmir and Ladakh High Court ruled that the purpose of appointment of the Commissioner is limited and the report of the Commissioner is not the final word as it is subject to the objections that may be taken by the parties to the suit.

57) Promotion Cannot Be Denied Merely Because Criminal Proceedings Are Pending Against The Employee: J&K&L High Court

Case Title: Tanveer Ahmad Khan Vs JK BOSE

Citation: 2022 LiveLaw (JKL) 108

The bench of Justice Javed Iqbal Wani reiterated that promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee and to deny such benefit, they must be at the relevant time pending at the stage when charge memo/charge-sheet has already been issued to the employee

58) J&K&L High Court Reprimands Judicial Magistrate, Recommends Recalling Of Incumbent Judge For Undergoing Refresher Training

Case Title: Abdul Rehman Dar Vs Tariq Ahmad Wagay

Citation : 2022 LiveLaw (JKL) 109

A single bench of Justice Rahul Bharti recently resorted to a remedial measure of recommending to the Chief Justice of the High Court of Jammu & Kashmir and Ladakh to recall an incumbent judge from his/her posting as Munsiff, Anantnag for undergoing refresher training in the State Judicial Academy for an appropriate course of the period before restoring judicial/court work to said judicial officer

The courts comprised in the district judiciary are the first point of interface with citizens and accordingly this Court is constrained to take cognizance of the manner in which the Presiding Officer of the Court of Munsiff, Anantnag has come to act in discharge of judicial function and conduct the cases which leave the administration of justice becoming a mocking matter at the hands of the judge of the civil court itself, and which is likely to erode, and in fact must have already eroded, the respect oriented public perception viz the district level judicial institution,the bench noted.

59) S.190 CrPC | No Bar On Impleadment Of Any Accused After Magistrate Takes Cognizance, Issues Process: J&K&L High Court

Case Title: Ghulam Mohd Mir Vs Tej Krishan Ganjoo & Ors.

Citation : 2022 LiveLaw (JKL) 110

The Jammu and Kashmir and Ladakh High Court reiterated that there is no bar under section 190 Cr.P.C. that once the process is issued against some accused, on the next date the Magistrate cannot issue process to some other person against whom there is some material on record but his name is not included as accused in the chargesheet.

60) Cheques Dishonored Due To Stop Payment, Account Closed & Signature Mismatch, All Fall Within Ambit Of S.138 NI Act: J&K&L High Court

Case Title: Mohammad Shafi Wani Vs Noor Mohammad Khan

Citation: 2022 LiveLaw (JKL) 111

The Jammu and Kashmir and Ladakh High Court reiterated that the provisions contained in Section 138 of the NI Act must be interpreted in a liberal manner so as to achieve the object for which the said provision has been enacted.

Not only the cases of dishonour of cheques on account of insufficiency of funds or on account of exceeding of arrangement but the cases involving dishonour of cheques on account of "stop payment", "account closed" and "Signature Mismatch" also fall within the ambit of offence under the aforesaid provision, the bench underscored

61) Preponderance Of Probability & Not Strict Principles Of Proof Like In Criminal Case Applicable In Motor Accident Claims: J&K&L High Court

Case Title: Showkat Ahmad Bhat & others Vs Khazir Mohammad Bhat & others

Citation: 2022 LiveLaw (JKL) 112

The Jammu and Kashmir and Ladakh High Court ruled that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Motor Vehicles Act and that standard to be followed in motor accident claims is one of preponderance of probability rather than one of proof beyond reasonable doubt.

Case Title: Faheem Sultan Gojree V/s UT of J&K and another

Citation: 2022 LiveLaw (JKL) 113

Justice Sindhu Sharma observed:

"The decision of the Detaining Authority cannot be substituted by the Court while scrutinizing the detention order. Since preventive detention is a precautionary measure to protect the society from activities which may cause harm to their life and liberty. Preventive detention is a precautionary measure to protect the society from the activities that are likely to deprive a large number of people of their rights and protect them from damaging to their life and property."

63) Person Arrested Under UAPA Has Bleak Chances Of Bail, Detaining Authority Must Show Compelling Reasons For His Preventive Detention: J&K&L High Court

Case Title: Sakib Ahmad Sheroo Vs UT of J&K & Ors

Citation: 2022 LiveLaw (JKL) 114

Justice Sanjay Dhar observed:

"The petitioner has been booked in an offence falling under Chapter IV of the ULAP Act and in view of the provisions of Section 43-D of the said Act, the chances of the petitioner getting bail were very remote. Thus, there were no compelling circumstances for the detaining authority to pass the impugned order of detention. The Detaining Authority was bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and, as already discussed, there is no such material on record."

64) Provident Fund & Other Pecuniary Benefits Received By Legal Heirs Of Deceased Have No Co-Relation With Motor Accident Claim: J&K&L High Court

Case Title: United Insurance Co Ltd Vs Jawahira Begum &Ors

Citation : 2022 LiveLaw (JKL) 115

The Jammu and Kashmir and Ladakh High Court ruled that Provident Fund, Pension, Insurance, bank balance, shares, fixed deposits, etc., are all pecuniary advantages receivable by heirs on account of one's death but all these have no correlation with the amount receivable as compensation under the Motor Vehicles Act, a statute occasioned only on account of accidental death.

Justice Vinod Chaterjee Koul Observed,

"The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity and these amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted".

65) Grounds Of Detention Mentioned In An Order That Was Quashed By Court Can't Be Considered To Pass Fresh Detention Order: J&K&L High Court

Case Title: Reyaz Ahmad Dar V/s U.T. of J&K and another

Citation: 2022 LiveLaw (JKL) 116

A bench of Justice Sindhu Sharma observed:

"If a detention order is quashed, the grounds of the order so quashed cannot be taken into consideration either in whole or in part or even along with the fresh grounds of detention for drawing subjective satisfaction to pass fresh order of detention.

66) High Court Deprecates Practice Of Deputing "Outsiders" In J&K State Road Transport Corporation Instead Of Promoting Existing Eligible Employees

Case Title: Managing Director J&K SRTC Vs Syed Arshad Tramboo & Ors

Citation: 2022 LiveLaw (JKL) 117

The bench comprising Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal observed that Rules nowhere provide that the outsiders can be brought in by way of "deputation" infringing fundamental right of persons, who are born on the establishment of the Corporation and have preferential right of being considered for promotion.

"To bring the officers from outside by way of deputation to the Corporation can be only in the eventuality if no suitable person is found eligible in the Corporation after assessing their merit, eligibility and suitability", Justice Nargal observed.

67) Insurer Must Show Negligence & Lack Of Reasonable Care By Insured To Avoid Its Liability Under Motor Vehicles Act: J&K&L High Court

Case Title: National Insurance Co Ltd Vs Mushtaq Ahmad Kutary

Citation: 2022 LiveLaw (JKL) 118

The Jammu and Kashmir and Ladakh High Court ruled that under the Motor Vehicles Act, mere absence, fake or invalid driving licence or disqualification of driver to drive at the relevant time are not in themselves defences available to the insurer against either insured or third parties. To avoid liability towards insured, the insurer has to prove that insured was guilty of negligence and failed to exercise reasonable care.

68) Preventive Detention | Only Those Acts Which 'Gravely Prejudice' Public Order Qualify As Acts Prejudicial To Security Of State: J&K&L High Court

Case Title: Jalal Ud Din Ganai Vs UT of J&K

Citation; 2022 LiveLaw (JKL) 119

The Jammu and Kashmir and Ladakh High Court on ruled that every act which is prejudicial to the security of the state would qualify to be an act prejudicial to the public order but the reverse is not true. It is only the acts prejudicial to the public order which are of 'grave nature' that would qualify to be termed as acts prejudicial to the security of the state, Justice Sanjay Dhar Stated.

"The expressions "security of the state" and "public order" are quite distinct from each other, inasmuch if contravention of law affects the community or public at large, it amounts to disturbance of public order whereas if the disturbance of public order is of grave nature which affects the security of the state, then the same constitutes an act that would affect the security of the state. Thus, every act which is prejudicial to the security of the state would qualify to be an act prejudicial to the public order but reverse is not true", the bench noted.

69) Changing Label Of Offence From S.495 IPC To S.420 Does Not Overcome Bar On Cognizance For Offence Against Marriage U/S 198 CrPC: J&K&L High Court

Case Title: Bashir Ahmad Dada & Ors Vs Ghulam Mohi Ud Din

Citation: 2022 LiveLaw (JKL) 120

The Jammu and Kashmir and Ladakh High Court ruled that merely by changing the label of the offence by making it one under Section 420 IPC instead of Section 495 IPC, one cannot avoid the legal bar on cognizance by courts under Section 198 of CrPC.

"Thus, her alleged act squarely falls within the definition of offence under Section 495 of the RPC. The respondent, instead of choosing to prosecute the petitioners for offence under Section 495 of RPC, has chosen to prosecute them for offence under Section 420 of RPC. This appears to this Court, as a case where the respondent is trying to evade the bar to taking of cognizance of offence under Section 495 RPC created under Section 198 of the Cr. P. C", the bench recorded.

70) J&K&L High Court Reopens 2003 Nadimarg Massacre Case, Says Court Has Jurisdiction To Recall Order Which Is A "Nullity" In Law

Case Title: State Through P/S Zainapora Vs Zia Mustaffa

Citation: 2022 LiveLaw (JKL) 121

Reopening the case Justice Sanjay Dhar observed " If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity The power of recall is different from the power of altering/reviewing the judgment"

71) 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.

72) 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.

73) 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.

74) 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.

75) 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.

76) [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.

77) 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.

78) Motor Vehicles Act -Claimant Wheather 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.

79) 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.

80) 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 :Bashir 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.

81) 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.

82) 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.

83) 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.

84) 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.

85) 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.

86) 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.

87) 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.

88) 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.

89) 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.

90) 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.

91) 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."

92) 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".

93) 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"

94) 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.

95) 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.

96) 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.

97) 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

98) 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.

99) 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.

99) 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."

100) 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.

101) 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.

102) 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.

103) 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

104) 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

105) 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.

106) 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".

107) 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.

108) Order XLI Rule 3-A CPC | Failure To File Appeal With Application For Condonation Of Delay 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".

109) 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.

110) 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.

111) 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".

112) 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.

113) [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.

114) 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."

115) 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.

116) 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.

117) 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.

118) 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.