J&K&L High Court Weekly Round-Up: October 17 To October 23, 2022

• Rupesh Kumar Vs UT of J&K 2022 LiveLaw (JKL) 183

• Bashir Ahmad Khan & Ors Vs UT of J&K & Ors 2022 LiveLaw (JKL) 184

• Case Title: Bahu Builders and Traders Jammu Pvt. Ltd Vs J&K Dharmarth Trust & Ors 2022 LiveLaw (JKL) 185

• Syed Akeel Shah Vs Directorate of Enforcement 2022 LiveLaw (JKL) 186

• Ravinder Gupta Vs UT of J&K 2022 LiveLaw (JKL) 187

• Indra Thakur Vs State of J&K 2022 LiveLaw (JKL) 188

• Case Title : State of J&K Vs Bhumesh 2022 LiveLaw (JKL) 189

• Case Title : S Rawail Singh Vs Gurinder Jeet Kour 2022 LiveLaw (JKL) 190

Judgements /Orders :

• Unexplained Delay In Executing Detention Order Casts Doubt On Genuineness Of Detaining Authority's 'Subjective Satisfaction': J&K&L High Court

Case Title : Rupesh Kumar Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 183

The Jammu and Kashmir and Ladakh High Court reiterated that unexplained delay in execution of warrant of detention throws a serious and considerable doubt on the genuineness of subjective satisfaction of the Detaining Authority leading to legitimate inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenu with a view to prevent him from acting in any prejudicial manner.

• Sections Form Substratum Of CPC, Orders & Rules Lay Further Ground Work For Adjudication: J&K&L High Court

Bashir Ahmad Khan & Ors Vs UT of J&K & Ors.

Citation : 2022 LiveLaw (JKL) 184

Finding fault with the stance of the lower Court, the bench comprising Justice Rahul Bharti observed:

"Sections are substratum of the Code whereas the First Schedule bearing compartmentalization of the rules into Orders are the turf part of the Code at which processing and progression of stage wise adjudication/trial of a cause/suit/appeal before a civil court of law gets carried out and conducted to its finality."

• S.203 CrPC | Before Dropping Criminal Proceedings Court To Be Satisfied That Complaint Is Purely Civil, Devoid Of Criminal Texture: J&K&L High Court

Case Title: Bahu Builders and Traders Jammu Pvt. Ltd Vs J&K Dharmarth Trust and others.

Citation: 2022 LiveLaw (JKL) 185

The Jammu and Kashmir and Ladakh High Court reiterated that before deciding to drop proceedings in a criminal complaint, the Court has to be satisfied that the subject matter involved in the complaint is a purely civil wrong and that it has no criminal texture to it.

• Authorized Officer Not To Await Expiry Of Appeal Period To Take Over Possession Of Attached Property U/S 8(4) PMLA: J&K&L High Court

Case Title: Syed Akeel Shah Vs Directorate of Enforcement & Ors.

Citation : 2022 LiveLaw (JKL) 186

The Jammu and Kashmir and Ladakh High Court observed that Section 8(4) of the PMLA Act clearly provides that the authorized officer can forthwith take over possession of the attached property once the order of provisional attachment is confirmed by the Adjudicating Authority.

It clarified that the expression "forthwith" used in Section 8(4) of the Act denotes clear intention of the legislature not to wait for the period of limitation prescribed for filing of appeal under Section 26 of the Act.

• Bail Can't Be Denied Merely Because Numerous FIRs Are Registered Against A Person Unless Prima Facie Involvement Shown: J&K&L High Court

Case Title: Ravinder Gupta Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 187

The Jammu and Kashmir and Ladakh High Court ruled that merely because a number of FIRs stand registered against a person he cannot be denied concession of bail, particularly, when his involvement in commission of a non-bailable offence is not prima facie shown from the contents of the FIR.

"It would be premature for this Court to deeply analyze the allegations made in the FIR lest it may prejudice the case of the prosecution. However, there appears prima facie merit in the submission made by the learned counsel for the petitioner that the dispute between the petitioner and the complainant appears to be essentially relating to demarcation of the land or at best a case of criminal trespass", the bench noted.

• [J&K Prevention of Corruption Act] Criminal Proceedings Can't Be Launched Against Public Servant In Absence Of Dishonest Intention: High Court

Case Title: Indra Thakur Vs State of J&K.

Citation: 2022 LiveLaw (JKL) 188

The Jammu and Kashmir and Ladakh High Court ruled that in the absence of any dishonest motive or intention on the part of public servant, criminal prosecution cannot be launched against him or her under the Prevention of Corruption Act.

Justice Sanjay Dhar while quashing the FIR to the extent of the petitioner for not disclosing commission of any cognizable offence by the petitioner concluded, "In the absence of any dishonest motive or intention on the part of the issuing authority and in the absence of any material to show that the petitioner had connived with the competent authority, it cannot be stated that any offence is made out against the petitioner".

• No Compulsory Retirement Merely On Committee Recommendation, Sans Departmental Enquiry & Sufficient Material: J&K&L High Court

Case Title : State of J&K Vs Bhumesh Sharma.

Citation : 2022 LiveLaw (JKL) 189

The Jammu and Kashmir and Ladakh High Court ruled that the power to compulsorily retire a government servant in terms of service rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. Such an order cannot be passed merely on the recommendation of the committee devoid of departmental inquiry and sufficient material to form bona fide opinion by the competent authority, it added.

• Once Marriage Stands Validly Dissolved By Foreign Court, Proceedings Under Domestic Violence Act Cannot Be Initiated : J&K&L High Court

Case Title : S Rawail Singh Vs Gurinder Jeet Kour.

Citation : 2022 LiveLaw (JKL) 190

The Jammu and Kashmir and Ladakh High Court ruled that once a marriage stands validly dissolved by a competent foreign court, the "domestic relationship" between the parties as husband and wife, which is necessary to invoke the provisions of the Domestic Violence Act, also ceases.

Interpreting Section 2(f) of the Domestic Violence Act which defines 'domestic relationship', the bench explained that in the instant case there is no domestic relationship existing between the parties and when the domestic relationship is not existing between the parties the provisions of the Domestic Violence Act cannot be invoked.