J&K&L High Court Weekly Round Up: August 22 To August 28, 2022

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

Judgements/Orders

1) 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.

2) 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

3) 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.

4) J&K Public Safety Act | Courts Cannot Substitute Decision Of Detaining Authority Taken As A Precautionary Measure To Protect Society: High Court

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."

5) 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."

6) 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".

7) 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.

8) 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.

9) 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.

10) 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.

11) 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.

12) 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"