Jammu & Kashmir And Ladakh High Court Monthly Digest: April 2023

Farid Ahmad Tak Vs UT of J&K & Ors 2023 LiveLaw (JKL) 72

Fayaz Ahmad Rather Vs UT of J&K 2023 LiveLaw (JKL) 73

Sonika Sharma vs Union of India 2023 LiveLaw (JKL) 74

Sunil Kumar Vs UT of J&K 2023 LiveLaw (JKL) 75

Raj Kumar Vs SSP & Anr 2023 LiveLaw (JKL) 76

Rizwan Bashir Dhobi Vs UT of J&K 2023 LiveLaw (JKL) 77

Mohammad Abdullah Bhat Vs Nazir Ahmad Bhat & Ors 2023 LiveLaw (JKL) 78

Amjid Hussain Khan Vs State of J&K 2023 LiveLaw (JKL) 79

Sheikh Mohammad Amin and another Vs Yasir Farooq and others 2023 LiveLaw (JKL) 80

Emaad Muzaffar Makhdoomi vs Vikar Ahmad Bhat 2023 LiveLaw (JKL) 81

Madan Lal & Ors Vs UT of J&K 2023 LiveLaw (JKL) 82

Robkar Vs Vivek Bhardwaj & Ors 2023 LiveLaw (JKL) 83

Sheikh Khalid Jehangir Vs Nayeem Akhter 2023 LiveLaw (JKL) 84

Afsana Kouser Vs UT of J&K 2023 LiveLaw (JKL) 85

Mohd Ashraf Shah Vs Union of India 2023 LiveLaw (JKL) 86

Gull Mohammad Bhat Vs Raj Kumar Goyal and others 2023 LiveLaw (JKL) 87

Jamal Din & Ors Vs New India Assurance 2023 LiveLaw (JKL) 88

Mohammad Ashraf Wani Vs Muzamil Bashir 2023 LiveLaw (JKL) 89

Ghulam Nabi Turrey Vs Farooq Ahmad Thokar and Another 2023 LiveLaw (JKL) 90

Peerzada Shah Fahad Vs UT of J&K 2023 LiveLaw (JKL) 91

Janbaz Ahmad Dass Vs UT of J&K 2023 LiveLaw (JKL) 92

Surinder Partap Singh and another Vs Vijay Kumar and Anr 2023 LiveLaw (JKL) 93

Tariq Ahmad Dar Vs NIA 2023 LiveLaw (JKL) 94

Ghulam Rasool Dar Vs J&K State Cooperative Bank 2023 LiveLaw (JKL) 95

Mushtaq Ahmad Dar Vs Enforcement Directorate & Ors 2023 LiveLaw (JKL) 96

M/s Ajay Auto Mobiles Vs TVS Motor Company Ltd. and others 2023 LiveLaw (JKL) 97

Rajinder Singh Manhas Vs Anil Gaind & Anr 2023 LiveLaw (JKL) 98

Renu Bala &Ors Vs State &Ors 2023 LiveLaw (JKL) 99

Zahoor Ahmad Bhat Vs UT of J&K 2023 LiveLaw (JKL) 100

Mohammad Maqbool Bhat Vs UT of J&K 2023 LiveLaw (JKL) 101

Judgments/Orders:

Investigation Into Non-Cognizable Offences Without Magistrate's Permission Can't Be Regularised By Subsequently Adding Cognizable Offences: J&K High Court

Case Title: Nikunj Sharma Vs State of J&K and another

Citation: 2023 LiveLaw(JKL) 70

The Jammu and Kashmir and Ladakh High Court has recently ruled that once an FIR is registered for non-cognizable offences, the inclusion of a cognizable offence at a later stage of the investigation could not be used to circumvent the law.

Inadvertence To Produce Document Not Substantial Cause To Invoke Order XLI Rule 27 CPC: Jammu & Kashmir High Court

Case Title: Mohammad Maqbool Regu and ors Vs Hilal Ahmad & Ors.

Citation: 2023 LiveLaw (JKL) 71

The Jammu and Kashmir and Ladakh High Court ruled that inadvertence on the part of a party to produce a document before the Court cannot be construed as a substantial cause within the meaning of Rule 27 of Order XLI of the Civil Procedure Code(CPC) to allow application for production of additional documents.

"Mere fact that certain evidence is important per se is not in itself a sufficient ground for admitting that evidence in appeal," Justice Javed Iqbal Wani remarked.

S.311 CrPC Asserts Power Of Courts To Recall & Summon Witnesses Even After Closure Of Evidence In Criminal Proceedings: Jammu & Kashmir High Court

Case Title: Farid Ahmad Tak Vs UT of J&K & Ors

Citation: 2023 LiveLaw (JKL) 72

The Jammu and Kashmir and Ladakh High Court reiterated that power of the court under Section 311 CrPC to recall any witness or witnesses already examined or to summon any witness can be invoked even if the evidence in both sides is closed, so long as the court retains seisin of the criminal proceedings.

The High Court observed that Section 311 of CrPC envisages that any court may, at any stage of any inquiry, trial or other proceedings, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined. The said power is not confined to any particular class of person, it said.

Jugglery, Manipulation Has No Place In Courts: Jammu & Kashmir HC Upholds Imposition Of Exemplary Cost On Party For Suppressing Material Facts

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

Citation: 2023 LiveLaw (JKL) 73

Upholding a single judge verdict wherein the writ court had imposed Rs one lakh penalty on petitioner for suppressing material facts and misleading the court to gain advantage over the other side, the Jammu and Kashmir and Ladakh High Court observed that that jugglery, manipulation, maneuvering or misrepresentation has no place in equitable and prerogative jurisdiction.

The bench maintained,

"Suppression of material facts, concealment of full details of litigation, present and past, between the parties qua subject matter of dispute, distortion or manipulation of relevant facts, misleading the court by stating false facts or withholding true facts disentitle a party to invoke equitable jurisdiction under Article 226 of Constitution of India,".

[BSF] Jammu & Kashmir High Court Upholds Widow's Rights To Family Pension Despite Divorce Proceedings Pending During Husband's Lifetime

Case Title: Sonika Sharma vs Union of India

Citation: 2023 LiveLaw (JKL) 74

The Jammu and Kashmir and Ladakh High Court ruled that a widow cannot be denied family pension after husband's death on the ground that during his lifetime, divorce proceedings were ongoing between the couple.

There is not even a single provision of law quoted in the reply/objections by the respondents as to on what basis the respondents are enabling themselves to deny the petitioner her claim for sanction and grant of family pension," the bench underscored.

No Self-Respecting Woman Would Normally Concoct Rape Allegations Putting Her Character, Marriage Prospects On Stake: Jammu & Kashmir High Court

Case Title: Sunil Kumar Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 75

Dismissing the bail plea of a man accused of raping a 10-year-old daughter of his neighbour, the Jammu and Kashmir and Ladakh High Court observed that normally no woman would put her character at risk by falsely implicating a man for rape.

"Since rape leaves a permanent scar on the most cherished possession of woman and serious psychological impact on the victim and her family, the prosecutrix as in the case in hand, would not therefore, have concocted story of rape against petitioner/accused to falsely implicate him by putting her honour, character, reputation and her future marriage prospects on stake in the society. Ordinarily, the offence of rape is grave by its nature," bench of Justice Mohan Lal observed.

Magistrate Can Order Second Inquiry U/S 202 CrPC Into Unexplored Allegations In Complaint: Jammu & Kashmir High Court

Case Title: Raj Kumar Vs SSP & Anr

Citation: 2023 LiveLaw (JKL) 76

The Jammu and Kashmir and Ladakh High Court ruled that a Magistrate is well within his jurisdiction to order an in depth enquiry under Section 202 CrPC, if the first report submitted by the enquiry officer lacks enquiry into certain allegations levelled in the complaint.

NDPS Act | Prosecutor Is Independent Statutory Authority, Must Apply Independent Mind To Justify Extension For Investigation: Jammu & Kashmir High Court

Case Title: Rizwan Bashir Dhobi Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 77

The Jammu and Kashmir and Ladakh High Court observed that a Public Prosecutor, being an independent statutory authority, is expected to apply his independent mind to the material produced before him by the Investigating Agency and thereafter take a decision as to whether or not extension of time for completing the investigation is justified in the facts and circumstances of the case.

Proceedings Before Mediator Confidential, Parties Can't Be Compelled To Abide By Offers Made During Negotiations: Jammu & Kashmir High Court

Case Title: Mohammad Abdullah Bhat Vs Nazir Ahmad Bhat & Ors.

Citation: 2023 LiveLaw (JKL) 78

The Jammu and Kashmir and Ladakh High Court reiterated that proceedings conducted before a Mediator are confidential in nature and the parties cannot be compelled to abide by what was offered by them during the negotiations before the Mediator.

S.265F J&K CrPC | Conviction Under Provisions Of Plea Bargaining Does Not Affect Character Antecedents Of Individual Seeking Employment: High Court

Case Title: Amjid Hussain Khan Vs State of J&K

Citation: 2023 LiveLaw (JKL) 79

The Jammu and Kashmir and Ladakh High Court ruled that conviction and sentencing of a convict by the trial court under the provisions of plea bargain as contained in Chapter XXII-A of J&K CrPC does not affect the character antecedents of an individual and hence cannot disable him from seeking a public employment.

Succession Certificates Under Indian Succession Act 1925 Do Not Confer Any Titles: Jammu & Kashmir High Court Explains

Case Title: Sheikh Mohammad Amin and another Vs Yasir Farooq and others

Citation: 2023 LiveLaw (JKL) 80

The Jammu and Kashmir and Ladakh High Court ruled that the proceedings for grant of a succession certificate under the Indian Succession Act 1925 are of summary nature and do not confer any title to the amount in favour of the certificate holder.

[S.138 NI Act] Magistrate Has Judicial Discretion To Dispense Personal Appearance Of Accused: Jammu & Kashmir High Court

Case Title: Emaad Muzaffar Makhdoomi vs Vikar Ahmad Bhat

Citation: 2023 LiveLaw (JKL) 81

The Jammu and Kashmir and Ladakh High Court made it clear that a Magistrate dealing with a complaint under Section 138 of the Negotiable Instruments Act can waive personal appearance of the accused, if it finds that insistence of his personal appearance would itself inflict enormous suffering or tribulations to the accused.

Justice Javed Iqbal Wani observed,

"Such discretion needs to be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons, the Magistrate feels that dispensing with the personal appearance of the accused would only be in the interest of justice. However, the Magistrate who grants such concession to the accused must have to grant the same subject to the aforesaid riders as a matter of course."

Jammu & Kashmir High Court Quashes 2022 Village Defence Guard Scheme To The Extent It "Denudes" SPOs Of Their Status & Privileges Under Old Scheme

Case Title: Madan Lal & Ors Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 82

The Jammu and Kashmir and Ladakh High Court quashed the Village Defence Group Scheme-2022 issued by the Government to the extent it has the effect of denuding the petitioners (heads of the Village Defence Groups) of their status as SPOs (Special Police Officers) and the power and privileges conferred on them by the Village Defence Group Scheme-1995.

"Can't Travel Beyond Original Judgment": Jammu & Kashmir HC Rejects Contempt Plea Against Health Dept For Excluding AYUSH Doctors From Performance Incentives

Case Title: Robkar Vs Vivek Bhardwaj & Ors

Citation: 2023 LiveLaw (JKL) 83

The Jammu and Kashmir and Ladakh High Court refused to initiate contempt action against officials of National Rural Health Mission (NRHM) for exclusion of AYUSH doctors from grant of performance based incentives offered to MBBS doctors.

The bench reiterated that the power of contempt is of a special nature and it needs to be exercised with care and caution; a Court cannot travel beyond the original judgment while exercising its contempt jurisdiction, it said.

Allegation Of Corrupt Practices Against Public Servant Can't Be Considered Defamatory Without Proving Malice: Jammu & Kashmir High Court

Case Title: Sheikh Khalid Jehangir Vs Nayeem Akhter

Citation : 2023 LiveLaw (JKL) 84

Quashing a complaint involving allegations of defamation against a Senior Office Bearer of a Public Sector Corporation for writing a letter to the Governor of Jammu and Kashmir highlighting acts of omission and commission in the J&K Project Construction Corporation, the Jammu and Kashmir and Ladakh High Court observed that every citizen has a right to comment on those acts of public men which concerns him as a citizen of the Country, if he does not make his commentary a cloak for Malice and Slander.

Article 144 | Police Force Bound By Supreme Court's Decisions To Protect Marital Freedom Of Consenting Adults: Jammu & Kashmir High Court

Case Title: Afsana Kouser Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 85

Highlighting Article 144 of the Constitution which mandates all government authorities to abide Supreme Court decisions, the Jammu and Kashmir High Court came to the rescue of an adult woman apprehending life threat for marrying a person of her choice.

Justice Rahul Bharti observed,

"Article 144 of the Constitution of India mandates all Authorities, Civil and Judicial, in the territory of India to act in aid of the Hon’ble Supreme Court. Bearing this constitutional sanction in perspective and the directions of the Hon’ble Supreme Court set into place, it is a matter of duty for the Police Officials as well as officials of the concerned Civil Administration, irrespective of hierarchical position, to ensure that marrying individuals who are major and have chosen to become husband and wife out of their free will and volition are not to fear anybody causing any harm to their life and limb."

Disciplinary Authority Must Show "Wilful" Absence To Terminate Employee: Jammu & Kashmir High Court Sets Aside CRPF Constable's Termination

Case Title: Mohd Ashraf Shah Vs Union of India

Citation: 2023 LiveLaw (JKL) 86

Reinstating a CRPF constable, the Jammu and Kashmir and Ladakh High Court ruled that the Disciplinary Authority must prove that an employee's unauthorized absence from duty was willful before it can be considered as misconduct and lead to termination.

Party Availing Legal Remedies Against Unfavourable Order Can't Be Pressurised By Initiating Contempt Action: Jammu and Kashmir High Court

Case Title: Gull Mohammad Bhat Vs Raj Kumar Goyal and others

Citation: 2023 LiveLaw (JKL) 87

A party has a right to avail the appropriate remedy before the higher forum under law and right to avail the appropriate remedy cannot be throttled by any process whatsoever, the Jammu and Kashmir and Ladakh High Court observed while dismissing a contempt petition.

Justice Wasim Sadiq Nargal observed that the right to avail the appropriate remedy as envisaged under law can by no stretch of imagination can be construed as an obstruction in the course of justice.

Major, Earning Children Entitled To 'Loss Of Dependency' Compensation On Parent's Death In Motor Accident: Jammu & Kashmir High Court

Case Title: Jamal Din & Ors Vs New India Assurance.

Citation: 2023 LiveLaw (JKL) 88

The Jammu & Kashmir and Ladakh High Court ruled that even if children claiming compensation under the Motor Vehicle Act on death of parent are major and earning, they are entitled to claim compensation on the ground of 'loss of dependency'.

"It is settled law that the legal representatives of the deceased have a right to apply for compensation and it must necessarily follow that even major and earning sons of deceased being legal representatives have a right to apply for compensation and it would be bounded duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on deceased or not, to limit the claim towards the conventional head only," the Court said.

Order XXIII Rule 3 CPC Cannot Be Imported To Deal With Complaints U/S 138 Negotiable Instruments Act: Jammu & Kashmir High Court

Case Title: Mohammad Ashraf Wani Vs Muzamil Bashir.

Citation: 2023 LiveLaw (JKL) 89

The Jammu and Kashmir and Ladakh High Court ruled that the provisions of Order XXIII Rule 3 of the CPC cannot be imported to deal with a complaint under Section 138 of the Negotiable Instruments Act.

A bench of Justice Javed Iqbal Wani observed that Section 138 of the Act is quasi-criminal and,

"The Magistrate could not have relied upon the aforesaid provisions of CPC while dealing with the case of a criminal offence under Section 138 of the Act which proceedings are regulated by the Code of Criminal Procedure".

Motor Accident Tribunal Can Pass Award U/S 166 Only After Proper Notice To Respondents And Affording Hearing: Jammu & Kashmir High Court

Case Title: Ghulam Nabi Turrey Vs Farooq Ahmad Thokar and Another

Citation: 2023 LiveLaw (JKL) 90

Setting aside an award of compensation passed by Motor Accidents Claims Tribunal, Shopian against a person without any notice to him, the Jammu and Kashmir and Ladakh High Court ruled that a man cannot incur the loss of property or liberty for an offence by a judicial proceedings until he has a fair opportunity of answering the case against him.

Justice Wasim Sadiq Nargal observed,

"It is only after giving a notice of the application to the respondents and affording them an opportunity of being heard and also after holding a proper enquiry into the matter, the Tribunal can pass an award, determining the amount of compensation which appears to be just, payable by the respondents. The law is settled at naught that when an award is passed at the back of a party and without affording him/her an opportunity of being heard, it is legally invalid."

Jammu & Kashmir High Court Quashes Journalist's Detention Under PSA, Says Detaining Authority Used Public Order, State Security With "Wavering Mind"

Case Title: Peerzada Shah Fahad Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 91

Observing that the detaining authority has used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty, the Jammu and Kashmir High Court quashed the detention order of Journalist Fahad Shah.

A bench of Justice Wasim Sadiq Nargal observed,

"Maintenance of public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of aside".

Mere Registration Of FIR Against Accused When He Was On Interim Bail Does Not Amount To Breach Of Bail Conditions: Jammu & Kashmir High Court

Case Title: Janbaz Ahmad Dass Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 92

The Jammu and Kashmir and Ladakh High clarified that the registration of an FIR against an accused does not constitute a breach of their interim bail conditions, as it is merely a preliminary step in the legal process and does not necessarily indicate criminal activity.

The bench of Justice Sanjay Dhar observed,

"Mere registration of an FIR against the petitioner during the pendency of his bail application when he was on interim bail, cannot amount to violation of the conditions of interim bail. This is so because mere registration of FIR does not mean that the petitioner had indulged in subversive activities or in any offence or any criminal activity thereby violating one of the conditions of bail".

Injunction | If Party Fails To Establish Prima Facie Case, Court Not Required To Consider Balance Of Convenience, Irreparable Loss: J&K High Court

Case Title: Surinder Partap Singh and another Vs Vijay Kumar and Anr.

Citation: 2023 LiveLaw (JKL) 93

The Jammu and Kashmir and Ladakh High Court reiterated that If a party fails to prove a prima facie case, the court cannot grant an injunction, even if the balance of convenience and irreparable loss and injury are in their favour

S.306 CrPC No Bar On High Court To Invoke Its Powers U/S 482 And Admit An Approver On Bail: Jammu & Kashmir High Court

Case Title: Tariq Ahmad Dar Vs NIA.

Citation: 2023 LiveLaw (JKL) 94

The Jammu and Kashmir and Ladakh High Court reiterated that in terms of Sec 306(4) (b) CrPC bail to approver who is in custody cannot be granted, however, in an appropriate case High Court can release the approver on bail in exercise of its inherent powers under Section 482 CrPC.

J&K State Cooperative Bank Independent From Govt Control, Service Disputes Outside Court's Writ Jurisdiction: Jammu & Kashmir High Court

Case Title: Ghulam Rasool Dar Vs J&K State Cooperative Bank

Citation: 2023 LiveLaw (JKL) 95

The Jammu and Kashmir and Ladakh High Court ruled that the J&K State Cooperative Bank Ltd is an autonomous body with no pervasive or deep control by the government and hence the bank's actions falling within the sphere of private law, including service disputes with its employees, are not amenable to the writ jurisdiction of the court.

Notice Issued By Adjudicating Authority To Initiate Proceedings Under FEMA Not Appealable, Writ Petition Maintainable: Jammu & Kashmir High Court

Case Title: Mushtaq Ahmad Dar Vs Enforcement Directorate & Ors

Citation: 2023 LiveLaw (JKL) 96

The Jammu and Kashmir and Ladakh High Court clarified that appeals before the Special Director (Appeals) in FEMA cases are only maintainable against orders passed by the Adjudicating Authority under Rule 4(8) of the 2000 Rules, and not against any prior proceedings initiated by the Authority.

Justice Sanjay Dhar thus held that a notice issued by the adjudicating authority to initiate proceedings against a party under Section 13 FEMA is not an 'order' and is not appealable and thus, a writ petition assailing the same is maintainable.

Erroneous Findings By Courts Below Not Ground To Invoke Article 227, "Manifest Miscarriage Of Justice" Required: Jammu & Kashmir High Court

Case Title: M/s Ajay Auto Mobiles Vs TVS Motor Company Ltd. and others

Citation: 2023 LiveLaw (JKL) 97

The Jammu and Kashmir and Ladakh High Court has dismissed a petition filed under Article 227 of the Constitution of India against an order passed by the trial court, which referred a dispute for arbitration. It observed that erroneous finding by the courts below on facts and law cannot justify for approaching the court under Article 227 unless manifest miscarriage of justice has occurred due to the order passed by the courts below.

CPC | 120 Days Period For Filing Written Statement Mandatory In Jammu & Kashmir After Abrogation Of Article 370, Court Has No Power To Extend It: High Court

Case Title: Rajinder Singh Manhas Vs Anil Gaind & Anr.

Citation: 2023 LiveLaw (JKL) 98

The Jammu and Kashmir and Ladakh High Court clarified that the Civil Procedure Code, 1908 so far as its applicability to the Union Territory of Jammu & Kashmir is concerned after amendments in view of Abrogation of Article 370, provides a maximum period of 120 days to the defendant to file the written statement failing which the defendant will forfeit the right to file written statement and the Court by no stretch of imagination shall allow the written statement to be taken on record.

Deaths By Electrocution Ignored As Mere Accidents: Jammu & Kashmir High Court Constitutes Committee To Enforce Statutory Regulations

Case Title: Renu Bala &Ors Vs State &Ors

Citation: 2023 LiveLaw (JKL) 99

Taking a serious note of increasing incidents of electric shocks often leading to death, the Jammu & Kashmir & Ladakh High Court constituted a committee to ensure the implementation of statutory safety measures and regulations enshrined in the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010, in letter and spirit.

A bench comprising Justice Wasim Sadiq Nargal observed,

“It appears that deaths due to electrocution as well as bodily injuries due to electric shocks are ignored as mere accidents...The colossal loss of human lives and especially children is totally unacceptable, grim and heart rending, such unfortunate deaths continue to occur and the statutory regulations are being flouted with impunity which is the root cause of such deaths/accidents".

No Person Can Be Deprived Of Source Of Livelihood Without Adhering To Principles Of Natural Justice: Jammu & Kashmir High Court

Case Title: Zahoor Ahmad Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 100

The Jammu and Kashmir and Ladakh High Court ruled that even if a person hands over documents that were summoned by an authority, the same does not give the authority a free hand to disregard the person's right to a fair hearing.

A bench comprising Justice Sanjay Dhar observed,

"Adherence to the principles of natural justice is not an empty formality. No person can be deprived of his property or source of livelihood without adhering to the principles of natural justice and without following the procedure prescribed under law".

Jammu & Kashmir High Court Dismisses Plea Of Cooperative Society Employees For Retirement Age Parity With Govt Employees

Case Title: Mohammad Maqbool Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 101

The Jammu and Kashmir and Ladakh High Court dismissed the plea of Cooperative Societies employees seeking age of retirement at par with the Government employees.

Justice Sanjay Dhar observed that the Cooperative Societies are autonomous institutions governed by their own rules and regulations and hence their employees cannot seek parity in service conditions with the employees of the Government, unless approved by the Board of Directors