JKL High Court Weekly Round-Up: December 5 To December 11, 2022

•  Ram Gopal Meena Vs CBI 2022 LiveLaw (JKL) 232

• Rohit Sharma Vs State of J&K 2022 LiveLaw (JKL) 233

•  Mtr Mehmooda Vs State of J&K 2022 LiveLaw (JKL) 234

•  M/S Doon Caterers Dehradun Uttrakhand Vs Union of India 2022 LiveLaw (JKL) 235

• Kamlesh Devi & Ors Vs State of J&K & Ors 2022 LiveLaw (JKL) 236

• Ali Mohammad & Ors Vs State of J&K 2022 LiveLaw (JKL) 237

• Murad Ali Sajan & Ors Vs UT of J&K 2022 LiveLaw (JKL) 238

• Abida Afzal Vs State Election Commission & Ors 2022 LiveLaw (JKL) 239

• Vinkal Sharma & Ors Vs UT of J&K and Ors 2022 LiveLaw (JKL) 240

• S. K. Bakshi Vs Punjab National Bank & Ors 2022 LiveLaw (JKL) 241

Judgements /Orders :

• Prolonged Preliminary Enquiry Does Not Vitiate Criminal Proceedings Against Corruption Unless Accused Shows Prejudice Caused To Him: JKL High Court

Case Title : Ram Gopal Meena Vs CBI

Citation : 2022 LiveLaw (JKL) 232

The Jammu and Kashmir and Ladakh High Court ruled that merely because preliminary enquiry has taken a long time to complete, the same cannot be said to have vitiated the criminal proceedings initiated in a corruption case, particularly when no prejudice has been caused to the accused by such act of the enquiry officer.

• Successful Prosecution Is Based Upon Quality Of Police Investigation, Not Length Of Continuing Custody Of Accused: JKL High Court On Bail

Case Title : Rohit Sharma Vs State of J&K

Citation : 2022 LiveLaw (JKL) 233

The Jammu and Kashmir and Ladakh High Court reiterated that a successful prosecution of a criminal case in a court of law is not based on the length of continuing custody of a suspect or an accused during the course of investigation.

A bench comprising Justice Rahul Bharti observed, "A successful prosecution of a criminal case in a court of law is based upon quality of police investigation with respect to the facts and circumstances of the case attending the commission of offences and not by length of continuing custody of a suspect or an accused during the course of investigation. An investigation authority is bound to show and demonstrate on factual basis as to how if an accused is admitted to bail in a case before finalization of police investigation and consequent presentation of police report under section 173 Cr. P.C, 1973, the investigation work is likely to suffer hurdles/obstacles to the prejudice of taking the investigation to the truth of the matter".

• Appointment Obtained Fraudulently Is Non-Est In Law, Not Necessary To Hold An Enquiry Before Termination: JKL High Court

Case Title : Mtr Mehmooda Vs State of J&K

Citation : 2022 LiveLaw (JKL) 234

The Jammu and Kashmir and Ladakh High Court reiterated that if an appointment is non-est in the eyes of law or is based upon forgery and fraud, it is not necessary for the employer to hold an enquiry before terminating the services of such an employee.

• [Arbitration & Conciliation Act] Proceedings U/S 9 Interim In Nature, Not Meant For Enforcement Of Conditions Of Contract: JKL High Court

Case Title : M/S Doon Caterers Dehradun Uttrakhand Vs Union of India

Citation : 2022 LiveLaw (JKL) 235

The Jammu and Kashmir and Ladakh High Court ruled that final relief cannot be granted under Section 9 of the Arbitration and Conciliation Act, 1996 as proceedings under the said provision are of interim measure and are not meant for enforcement of the conditions of the contract, which can be done only when the rights of the parties are finally adjudged or crystallized by the arbitrator.

Explaining the law applicable to the instant subject Justice Nargal observed, "The proceedings of Section 9 of the Act is by way of an interim measure and are not meant for enforcement of the conditions of the contract as it would be done only when the rights of the parties are finally adjudged or crystallized by the arbitrator. Section 9 proceedings which are for interim measures cannot be converted into the proceedings where a party may seek indirectly a final relief but nature of the conditions incorporated in the terms and conditions of the agreement, its scope and merit in-law and its applicability, are all questions to be examined by the arbitrator in accordance with law".

• Judicial Magistrate Not Competent To Direct Re-Investigation Or Transfer Case From One Investigating Agency To Another: JKL High Court

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

Citation : 2022 LiveLaw (JKL) 236

The Jammu and Kashmir and Ladakh High Court recently reiterated that a judicial magistrate is not competent to order re-investigation in a case nor is he empowered to transfer the case from one investigating agency to another.

Justice M A Chowdhary observed, "No other Court except the Superior /Constitutional Courts is vested with the powers to order reinvestigation or transfer investigation of a case from one agency to another, to secure the ends of justice."

• 'No Delay Is Too Long For Court To Correct Its Own Wrong': JKL High Court On Inadvertent Proceedings & Judgment Against A Dead Man

Case Title : Ali Mohammad & Ors Vs State of J&K

Citation : 2022 LiveLaw (JKL) 237

While setting aside a series of orders and judgments inadvertently passed against a dead man, the Jammu and Kashmir and Ladakh High Court observed that it is empowered to correct its mistakes, no matter the delay.

"No delay is too long/late for the Court to do course correction for its own wrong/mistake/error so as to undo the effects and restore the justice...Court only enhances its prestige when it acknowledges and amends any wrong/mistake/error, be it advertent/inadvertent on its part in the course of a legal proceedings causing prejudice to a litigant in the lis before it," a Division bench of Justices Rajnesh Oswal and Rahul Bharti said.

• Adhoc Employee Can't Replace Another Adhoc Employee, Only Substantive Appointment Can Make Such Replacement: JKL High Court Reiterates

Case Title : Murad Ali Sajan & Ors Vs UT of J&K.

Citation : 2022 LiveLaw (JKL) 238

The Jammu and Kashmir and Ladakh High reiterated that an ad hoc employee cannot be replaced by another ad hoc employee; such position can be filled only by a candidate who is regularly appointed by following a regular procedure prescribed.

Expounding further on the matter Justice Dhar recorded, "It may be correct to say that the petitioners are not entitled to seek extension of their contractual engagement but at the same time the respondents' action of replacing the academic arrangement by another similar arrangement cannot be countenanced in law. The respondents can only replace the petitioners by filling up the vacant posts of Staff Nurses on substantive basis, which they have not chosen to do".

• No Blanket Bar On Judicial Review Of Decisions Made By Election Authority: JKL High Court

Case Title : Abida Afzal Vs State Election Commission & Ors.

Citation : 2022 LiveLaw (JKL) 239

The Jammu and Kashmir and Ladakh High Court recently ruled that there is no blanket bar to the judicial review of decisions made by an Election Authority but it is only those decisions which have the effect of retarding, interrupting, protracting or stalling the completion of the election process that can be challenged in the writ jurisdiction.

A bench comprising Justice Sanjay Dhar observed, "Anything done towards completion of election process cannot be challenged before the High Court and it is only if it is shown that the Election Authority has exercised its power arbitrarily and such action has the effect of stalling the election process, the same can be challenged by way of a writ petition".

• High Court Orders Probe Into Conduct Of J&K Service Selection Board After It Appoints 'Blacklisted' Agency For Conducting Exams

Case Title : Vinkal Sharma & Ors Vs UT of J&K and Ors.

Citation : 2022 LiveLaw (JKL) 240

The Jammu and Kashmir and Ladakh High Court on Thursday quashed the ongoing recruitment process for Junior Engineer-civil (Jal Shakti Department) and Sub Inspector (Home Department) and directed the UT Government to constitute a high level Committee headed by not less than a retired High Court Judge to enquire into the conduct of Jammu and Kashmir Service Selection Board.

• SARFAESI Act | Bank Can Auction Property With Encumbrances But Bidders Must Be Informed, 'As Is Where Is' Clause Not Sufficient: JKL High Court

Case Title : S. K. Bakshi Vs Punjab National Bank & Ors

Citation : 2022 LiveLaw (JKL) 241

The Jammu and Kashmir and Ladakh High Court ruled that a Bank can auction the property even with encumbrances attached to property under the SARFAESI Act but it is incumbent upon the Bank to disclose the encumbrances and litigations attached to the property to all the persons who want to participate in the same and to the successful bidder.

A bench comprising Justice Sindhu Sharma observed, "By including a clause of" as is where is‟ it would not be sufficient for respondent bank from disclosing encumbrances or handing over the property to the petitioner".