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80 Important Rulings Of Jammu &...

80 Important Rulings Of Jammu & Kashmir And Ladakh High Court 2023

Basit Amin Makhdoomi

30 Jan 2024 10:25 AM GMT

15) S.7 Migrant Immovable Property Act Requiring Surrender Of Property To Prefer Appeal Against Eviction In Tune With Peculiar Conditions Of J&K: High Court

Case Title: Abdul Khaliq Rather Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 53

The Jammu and Kashmir and Ladakh High Court ruled that the condition to surrender the property for preferring an appeal under Section 7 of the Migrant Immovable Property Act 1997 against eviction order, was necessitated by the peculiar situation prevailing in the Union Territory of Jammu and Kashmir.

The bench comprising Justices Rajnesh Oswal & Mohan Lal observed,

"This provision was incorporated in view of the extraordinary situation prevailing in the then State of Jammu and Kashmir (now Union Territory) because of migration from the then State of Jammu and Kashmir (now Union Territory) and more particularly from the Kashmir Valley".

16) Compulsory Risks In Insurance Automatically Transferred To Transferee Of Vehicle Even When Certificate Of Insurance Not Transferred: Jammu & Kashmir High Court

Case Title: New India Assurance Co. Ltd Vs Anita Devi and others

Citation: 2023 LiveLaw (JKL) 54

The Jammu and Kashmir and Ladakh High Court ruled that whoever may be the actual owner of the motor vehicle at the time of the accident, compulsory risks covered under the policy of insurance get automatically transferred to the transferee of a vehicle even though certificate of insurance has not been transferred in his favour.

17) Insurance Company Not Liable To Unauthorised Passengers Traveling In Offending Vehicle, Pay & Recover Principle Not Applicable: J&K High Court

Case Title: National Insurance Co. ltd.Vs Mursa Begum and ors.

Citation: 2023 LiveLaw (JKL) 56

The Jammu and Kashmir and Ladakh High Court has observed that once it is shown that deceased/injured persons were traveling as unauthorised passengers in an offending vehicle and their risk is not covered under the terms insurance policy, the insurer cannot be saddled with the liability to compensate them and even the principle of 'Pay and Recover' will not be attracted.

18) Once Magistrate Seeks Preliminary Report On Allegations Made In Application U/S 156(3) CrPC, Police Cannot Straightaway Lodge FIR: Jammu & Kashmir HC

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

Citation: 2023 LiveLaw (JKL) 58

The Jammu and Kashmir and Ladakh High Court observed that when a Magistrate directs a preliminary enquiry under Section 156(3) CrPC and the police without reporting back to the Magistrate straightway goes on to file an FIR without any direction thereto, the same amounts to usurpation of the powers of the Magistrate.

19) Revisional Powers U/S 102 Juvenile Justice Act Vested With High Court, Cannot Be Exercised By Sessions Court/ Children's Court: Jammu & Kashmir HC

Case Title: Master X th. Shah Wali Vs State of J&K

Citation: 2023 LiveLaw (JKL) 59

The Jammu and Kashmir and Ladakh High Court made it clear that a Sessions Court or a Children's Court cannot entertain a revision petition against the order of Juvenile Justice Board.

Justice Sanjay Dhar observed that the power of revision under Section 102 of the Juvenile Justice Act is vested with the High alone. "No such power is vested with the Court of Sessions or Children's Court," the bench remarked.

20) S.25F ID Act Not Complied: Jammu & Kashmir High Court Says Acceptance Of Compensation Won't Estop Workmen From Challenging Retrenchment

Case Title: India Tourism Development Corporation Limited & Anr Vs Fayaz Ahmad Sheikh & Ors.

Citation: 2023 LiveLaw (JKL) 60

The Jammu and Kashmir and Ladakh High Court ruled that in cases where there is a failure on the part of an employer to abide by the prescription of Section 25 of the Industrial Disputes Act 1947, the application of doctrine of Estoppel cannot lie against the employee who accepted compensation, while challenging his retrenchment order.

A bench comprising Justices Rajnesh Oswal and Mohan Lal observed,

"From the records, it is established that the retrenchment amount was paid to the Respondents in utter disregard of Section 25-F of the Act of 1947 and, therefore, once the employer has not followed the statutory obligation, then the acceptance of the retrenchment amount would not to be an estoppel for the workmen to challenge the order of retrenchment...If the manner of doing a particular act is prescribed under any Statute, then the act must be done in that manner only. Once an act prescribed under any Statute is not done in accordance with the conditions prescribed for its performance, then the doer of the said act cannot derive any benefit of that Act."

21) No Distinction Between Retired & Inservice Employees For Prosecution Under Jammu & Kashmir Prevention Of Corruption Act: High Court

Case Title: Bopinder Singh Dua Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 62

The Jammu and Kashmir and Ladakh High Court made it clear that even retired employees of a Public Corporation can be be prosecuted under the Jammu & Kashmir Prevention of Corruption Act, if the circumstances so warrant.

Justice Javed Iqbal Wani observed that Section2(2)(c) of the Act, which defines 'Public Servant', is wide enough to include inservice as well as retired officer/servants/ member of the Corporation.

22) Order XLVII CPC | Erroneous View Of Law Not A Ground For Review: Jammu & Kashmir High Court

Case Title: Mst Haleema & Ors Vs Mst Dilshada & Ors.

Citation: 2023 LiveLaw (JKL) 64

The Jammu & Kashmir and Ladakh has reiterated that an erroneous view of law is not a ground for review and a court cannot rehear and correct an erroneous judgment by way of a review.

"I am afraid the scope of review cannot be extended to re-appreciation of the evidence led by the parties before the trial court nor can this Court, in exercise of its power of review, sit over its own judgment regarding interpretation of a document," Justice Dhar explained.

23) Civil Service Rules | Failure To Produce Chargesheet Within 3 Months Does Not Automatically Vitiate Employee's Suspension: Jammu & Kashmir High Court

Case Title: UT of J&K Vs Munshi Masood

Citation: 2023 LiveLaw (JKL) 68

Setting aside an order of Central Administrative Tribunal Srinagar, in terms of which it had quashed the suspension of an employee on the ground of his prolonged suspension, the Jammu and Kashmir and Ladakh High Court has recently ruled that failure to produce a challan/charge sheet within a period of three months does not automatically vitiate the suspension.

A bench comprising Justices Sanjeev Kumar and Puneet Gupta observed,

"It is true ordinarily whenever a Government servant is placed under suspension on a criminal charge, endeavour should be made to produce the charge sheet before the competent court of law within a period of three months. The failure to produce a challan/charge sheet within a period of three months does not automatically vitiate the suspension".

24) 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 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.

25) [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.

26) 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.

27) 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.

28) 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.

29) 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.

30) 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.

31) 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.

32) 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."

33) 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.

34) 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.

35) 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".

36) 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.

37) 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".

38) Power To Transfer Undertrial Prisoner From One Jail To Another Only With Court: Jammu & Kashmir High Court

Case Title: Nayeem Rasool Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 102

The Jammu & Kashmir and Ladakh High Court ruled that the power to direct transfer of an undertrial prisoner from one jail to another vests only with the Magistrate/ Court which had remanded the detenue to a certain prison, and not with the prison authorities.

A bench comprising Justice M A Chowdhary referred to Prison Manual, 2022- For the Superintendence and Management of Prisons in the Union Territory of Jammu and Kashmir read with Prisoners Act, 1900 and observed,

"The power to remand or transfer of an undertrial prisoner from one jail to another is to be exercised by the Court by passing a judicial order, obviously after providing opportunity of being heard and that the change in the place of detention would be permissible only with the permission of the Court under whose warrant the undertrial has been remanded to custody."

39) Orders Framing, Altering Or Refusing To Alter Charges Under NIA Act Are Interlocutory & Not Appealable: Jammu & Kashmir High Court

Case Title: Ayaz Ahmad Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 104

The Jammu and Kashmir and Ladakh High Court ruled that a Special Court's order framing charge or altering or refusing to alter the charge under the National Investigating Agency Act is an interlocutory order and not appealable under Section 21.

40) Public Safety Act | Preventive Detention Not An Arrest, No 24-Hour Magistrate Appearance Required: Jammu & Kashmir High Court

Case Title: Muntazir Ahmad Bhat Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 113

The Jammu and Kashmir and Ladakh High Court ruled that being detained under the Public Safety Act cannot be considered an arrest for committing an offence under the penal law. Instead, it is a preventive measure to avoid any possible harmful act from the detained person based on their background and therefore, there is no requirement to produce the detainee before a magistrate within 24 hours, it clarified.

41) Banks Can Exclude Such Borrowers From OTS Scheme From Whom Chances Of Recovery Are High: Jammu & Kashmir High Court

Case Title: Ghulam Ahmad Mir Vs J&K Bank & Ors.

Citation: 2023 LiveLaw (JKL) 114

The Jammu and Kashmir and Ladakh High Court ruled that a banking company enjoys the discretion to formulate policies and exclude from its One Time Settlement Scheme such borrowers, who have a higher chance of recovery.

A bench comprising Justice Sanjay Dhar observed,

"A banking company is free to make policies and issue guidelines so as to differentiate the cases of those borrowers where the chances of recovery are bright from those where the chances of recovery are bleak. Merely because a banking company has formulated a scheme excluding the cases of borrowers where the chances of recovery are bright, it cannot be stated that such a scheme or such covenants of the scheme are discriminatory in nature against the excluded borrowers."

42) Allotment Under Evacuees' Property Act Confers Only Temporary Right Of Use, Not Title Or Interest: Jammu & Kashmir High Court

Case Title: Bachan Lal. Vs J&K Special Tribunal

Citation: 2023 LiveLaw (JKL) 119

The Jammu and Kashmir and Ladakh High Court ruled that allotment under the Evacuees' Property Act is a temporary right of use and occupation of any immovable property and it neither confers any right nor title or interest over the allottee.

A single bench of Justice Rajesh Sekhri while referring to a full Bench judgment in Shamsher Singh v. Dy. Custodian 1973 General reiterated,

"Allotment is a mere license, which is revocable by the concerned authorities under certain conditions. It neither confers ownership nor interest in the land. The interest of an allottee arises only by statutory grant to displaced persons, which is not amenable to acquisition or alienation in any normal modes by way of sale, gift, mortgage or will".

43) Court Not Having Territorial Jurisdiction Cannot Hear Application For Amendment Of Plaint To Acquire Jurisdiction: Jammu & Kashmir High Court

Case Title: Abdul Aziz Bhat & Ors Vs Hilal Ahmad Bhat.

Citation: 2023 LiveLaw (JKL) 121

The Jammu and Kashmir and Ladakh High Court ruled that when the court lacks territorial jurisdiction, it cannot entertain an application for amendment of a plaint, which amendment would vest territorial jurisdiction in the court.

A single bench of Justice Wasim Sadiq Nargal observed,

"The courts have to examine the plaint as existing and come to the conclusion whether it discloses the court to be having territorial jurisdiction or not; if the averments contained in the plaint as existing does not disclose the court to be having territorial jurisdiction and amendment is sought to vest territorial jurisdiction in the court , then the only option for the court is to return the plaint and the court will have no jurisdiction to even consider the application for amendment of the plaint".

44) Drivers With Heavy Goods Vehicle Licenses Can Also Drive Passenger Carrying Vehicles: Jammu & Kashmir High Court

Case Title: National India Insurance Vs Jagjeet Singh

Citation: 2023 LiveLaw (JKL) 122

The Jammu & Kashmir and Ladakh High Court ruled that individuals possessing a driving license for a specific type of commercial vehicle are deemed qualified to drive any other type of commercial vehicle as well.

A single bench of Justice Sanjay Dhar observed,

"Any person who was holding a driving license authorizes him to drive a particular type of commercial vehicle would automatically be eligible to drive any other type of commercial vehicle, meaning thereby that a driver holding a driving license to drive a heavy goods vehicle would be competent to drive a passenger carrying vehicle,".

45) Ex-Parte Decree | Remedies Under Order 9 Rule 13 & Section 96 CPC Are Concurrent, Can Be Resorted To Simultaneously: Jammu & Kashmir High Court

Case Title: Swarn Salaria Vs Baldev Raj Sharma & Ors.

Citation: 2023 LiveLaw (JKL) 129

The Jammu and Kashmir and Ladakh High Court reiterated that remedies under Order 9 Rule 13 CPC and Section 96 of the CPC, which allow for setting aside an ex parte judgment and filing an appeal, respectively, are concurrent and can be resorted to simultaneously.

46) Article 22(5) | Everyday Delay By Detaining Authority In Dealing With Detenu's Representation Has To Be Explained: Jammu & Kashmir High Court

Case Title: Atta Mohd Khan Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 130

While quashing a preventive detention order under J&K Public Safety Act, the Jammu & Kashmir High Court ruled that the Constitution casts legal obligation on the Government to consider the detenu's representation as early as possible.

Justice Sanjay Dhar observed,

"Everyday delay in dealing with the representation has to be explained and the explanation offered must indicate that there was no slackness or indifference. Any unexplained delay would be breach of constitutional imperative and it would render the continued detention of the detenu as illegal."

47) Every Water Source Is Government Property: Jammu & Kashmir High Court

Case Title: Mohammad Akram Dar & Ors Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 135

Observing that every water source in the State is and shall remain the property of the Government, the Jammu and Kashmir and Ladakh High Court dismissed a plea filed by the residents of the village Qasba Yar, District Shopian, seeking directions upon the administration to not to change, divert or take any water from Yari Kohal, a river flowing through their village.

Underscoring the goal of the State in ensuring that the ownership and control of the material resources of the community are distributed to subserve the common good as mandated under Article 39 of the Constitution, the Court said that the respondents have undertaken the exercise to ensure fair distribution of the natural resources and no individual or group of individuals can claim any right to exclusive use of natural resources.

48) When Victim Avoids Stepping Into Witness Box, Such Conduct Sufficient To Entitle Accused To Bail: Jammu & Kashmir High Court In POCSO Case

Case Title: Ravi Kumar Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 147

Granting bail to an accused in a POCSO case, the Jammu and Kashmir and Ladakh High Court has said that simply because the prosecutrix keeps herself away from appearing in court, the plea for bail cannot be deferred indefinitely.

"It is not the case of the prosecution that trial is being delayed because of the conduct of the accused but it is a case where the victim is avoiding to step into the witness box. This conduct of the victim is sufficient to entitle the petitioner to the concession of bail," Justice Sanjay Dhar observed.

49) [Impleading Legal Heirs Of Deceased Defendant] Jammu & Kashmir High Court Differentiates Between Order 1 Rule 10 And Order XXII Rule 4 CPC

Case Title: Hakim Din Vs Akbar Noor & Ors.

Citation: 2023 LiveLaw (JKL) 149

Differentiating the ambit and scope of Order-1 R-10 (2) and Order-XXII R-4 CPC, the Jammu and Kashmir High Court ruled that while Order-1 R-10 (2) enables the Court to add, substitute or strike down a person impleaded as party to the suit, Order-XXII R-4 on the other hand requires the plaintiff to bring legal heirs/representatives of a deceased defendant on record.

Therefore, where a case is covered by Order-XXII R-4, the provisions of Order-1 R-10 (2) stand excluded on the well known principle “general words do not derogate special provisions”, the court clarified.

50) Sarcastic Remarks, Mere Harassment By Husband Due To Marital Discord Not 'Abetment Of Suicide': Jammu & Kashmir High Court

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

Citation: 2023 LiveLaw (JKL) 174

Mere harassment of a wife by her husband or in-laws due to matrimonial discord or sarcastic remarks per se does not attract the offence of abetment of suicide, the Jammu & Kashmir and Ladakh High Court held.

While upholding the acquittal of a man from charges under Section 306 of the Ranbir Penal Code (RPC) after his wife set herself ablaze and died, a single bench of Justice Rajesh Sekhri observed,

"There may be various instances of matrimonial discord between husband and wife and at times wife being constantly taunted and subjected to sarcastic remarks in the house of her in-laws may be driven to commit suicide. However, such instances are normal wear and tear of a matrimonial life. In my opinion mere harassment of a wife by her husband or in-laws due to matrimonial discord or sarcastic remarks perse does not attract Section 306 of RPC (abetment of suicide)."

51) Juvenile Justice Board Is 'Criminal Court' Justifying Withholding Of Passport U/S 6(2)(f): Jammu & Kashmir High Court

Case Title: Hazik Wangnoo Vs Ut of J&K

Citation: 2023 LiveLaw (JKL) 189

The Jammu & Kashmir High Court clarified that a Juvenile Justice Board possesses all the trappings of a Criminal Court, justifying the non-issuance of passport or travel documents under Section 6(2)(f) of the Passport Act to a person facing proceedings before the JJB.

Justice Sanjay Dhar observed,

"Juvenile Justice Board has all the trappings of a Criminal Court, the proceedings against the petitioner which are pending before the said Board in respect of offences under Sections 447, 354, 323, 382, 201 of IPC would certainly attract the provisions under Section 6(2)(f) of the Passport Act."

52) Traditional Families Hesitant To Report Crimes Involving Dignity Of Young Woman: Jammu & Kashmir High Court

Case Title: Subash Chander Vs State of J&K

Citation: 2023 LiveLaw (JKL) 192

The Jammu & Kashmir and Ladakh High Court highlighted the hesitancy of traditional families to report cases concerning the dignity of young women to the police, fearing it might jeopardize their own honour. The court emphasised that a slight delay in lodging an FIR in such cases should not be deemed fatal for the prosecution case.

“…Wherein dignity of a woman that too of a younger age is involved, the traditional families are hesitant to report such matters to the police putting their honour and dignity also at stake, therefore the delay of a single day in lodging of FIR, in the considered opinion of this court, by no stretch of imagination, can be said to be inordinate delay, so as to be fatal for the prosecution case”, Justice M A Chowdhary observed.

53) Order XXII CPC For Bringing On Record Legal Heirs Of Deceased Party Apply To Proceedings For Restoration Of Suit: J&K High Court

Case Title: Mohhamd Rafiq Khan Vs PNB &

Citation: 2023 LiveLaw (JKL) 196

The Jammu & Kashmir and Ladakh High Court clarified that the applicability of Order XXII of the Civil Procedure Code (CPC) which govern the procedure for bringing on record the legal representatives of the deceased plaintiffs/ defendants as also the procedure for setting aside of the abatement, is not limited to suits alone.

Single bench of Justice Sanjay Dhar observed that the provisions of Order XXII are equally applicable in suits, appeals, and proceedings relating to the restoration of a suit.

54) Those Responsible For National Security Sole Judges Of What Preventive Actions Are Necessary: Jammu & Kashmir High Court Upholds Detention Order

Case Title: Mohammad Younis Mir Vs Union Territory of J&K & Anr.

Citation: 2023 LiveLaw (JKL) 200

The Jammu and Kashmir High Court emphasised on its limited scope to look into the manner in which the subjective satisfaction is arrived at by the detaining authority to order preventive detention of a person.

“The courts do not even go into the questions as to whether the facts mentioned in the grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the courts and that it is not the policy of the law of preventive detention. This matter lies within the competence of the advisory board. Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires”, Justice M A Chowdhary observed.

55) "Fundamentalist Muslim Cannot Be Equated With An Extremist Or A Separatist": Jammu & Kashmir High Court

Case Title: Shahbaz Ahmad Palla.

Citation: 2023 LiveLaw (JKL) 202

"A fundamentalist Muslim cannot be equated with an extremist or a separatist," the Jammu & Kashmir and Ladakh High Court observed recently.

The remarks were made by single bench of Justice Atul Sreedharan while dealing with a petition challenging preventive detention of a 22 years old Muslim man inter alia on the ground that he has become a “hard core fundamentalist” and voluntarily agreed to work as Over Ground Worker of the TRF (The Resistance Front), alleged LeT outfit.

56) Non-Disclosure Of Material Information By Probationer Sufficient Ground For Termination Without Formal Enquiry: Jammu & Kashmir High Court

Case Title: Bijay Oraon Vs Union Of India

Citation: 2023 LiveLaw (JKL) 206

The Jammu & Kashmir High Court has ruled that non-disclosure of material information or submission of false information by a government employee, especially in a belt force like the Central Reserve Police Force (CRPF), can be sufficient ground for termination without the need for a formal enquiry, if the employee is on probation.

“…Even if the employer comes to know about the adverse antecedents of an employee during probation period, it shall be open to the employer to exercise his powers under sub-rule (1) of Rule 5 of the Rules of 1965 and discharge the probationer without assigning any reason”, Justice Sanjay Dhar emphasised.

57) UAPA | Jammu & Kashmir High Court Issues Guidelines To Expedite Trials Especially During Stage Of Prosecution Evidence

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

Citation: 2023 LiveLaw (JKL) 207

The Jammu & Kashmir High Court issued a set of guidelines to Trial Courts in the State to expedite trials, especially during the stage of prosecution evidence.

58) Employee Free To Challenge Conditions Of Appointment Order If They Are Not In Conformity With Law: Jammu & Kashmir High Court

Case Title: Sarwa Begum and Ors. (LRs of Late Shabir Ahmad Dar) Vs State of J&K and Ors.

Citation: 2023 LiveLaw (JKL) 213

The Jammu and Kashmir and Ladakh High Court upheld the right of an employee to challenge the conditions of his/her appointment order in case the same is not in conformity with law.

A single bench of Justice Wasim Sadiq Nargal observed,

"Once, the respondents have admitted their mistake of granting the lower pay scale to the petitioner in spite of the fact that the petitioner was entitled for the higher grade being diploma holder, then it was incumbent on the part of the respondents to have rectified their mistake by granting him the benefit of the said grade retrospectively from the date when the petitioner came to be appointed along with all consequential benefits."

59) Simultaneous Prosecution Under PMLA, UAPA Not Double Jeopardy: Jammu & Kashmir High Court

Case Title: IRSHAD AHMAD QURESHI & ANR Vs. STATE OF J&K & OTHERS

Citation: 2023 LiveLaw (JKL) 223

Emphasizing that the offence under Section 3 of the Prevention of Money Laundering Act (PMLA) is distinct and independent from offences under the Unlawful Activities (Prevention) Act (UAP Act), the Jammu and Kashmir and Ladakh High Court held that simultaneous prosecution under both laws does not amount to double jeopardy.

60) "Useless Formality Theory": J&K High Court Says Post-Decisional Hearing Can Remove Procedural Deficiency Of Pre-Decisional Hearing

Case Title: Noor Illahi Fakhtoo vs UT of J&K and Ors.

Citation: 2023 LiveLaw (JKL) 225

The Jammu and Kashmir High Court observed that the "Useless Formality Theory" would be relevant in cases where a party's case lacks substance or chances of success are slim, and applying natural justice principles would not change the outcome.

The Bench comprising Justice Javed Iqbal Wani clarified that even in such cases, taking recourse to a post-decisional hearing can fix procedural flaws and ensure fairness.

61) Appellant Should Also Challenge Decree Not Just Judgment U/S 96 CPC: Jammu & Kashmir High Court

Case Title: Nazir Ahmad Ganie and Another Vs Mohammad Amin Ganie

Citation: 2023 LiveLaw (JKL) 227

The Jammu and Kashmir High Court highlighted that an appeal must challenge the decree passed by the original court, not just the judgment as mandated by Section 96 of the Code of Civil Procedure (CPC).

Justice Puneet Gupta emphasised that the responsibility to challenge the decree rested with the appellants and that their failure to do so within the stipulated time period could not be excused.

62) J&K Distillery Rules | State Can't Levy Excise Duty On Rectified Spirit Unfit For Human Consumption: High Court

Case Title: Gupta Modern Breweries Vs State of J&K

Citation: 2023 LiveLaw (JKL) 231

The Jammu and Kashmir High Court has ruled that the State does not possess the requisite legislative competence to impose Excise Duty on rectified spirit not suitable for human consumption as per Rules 107 and 108 of the Jammu & Kashmir Distillery Rules.

Justice Moksha Khajuria Kazmi interpreted the Jammu and Kashmir Excise Act to allow Excise Duty only on spirits that had passed certain production and distillation stages and were fit for human consumption.

63) Dying Declaration | One Line Certificate By Doctor That Patient Is Fit Without Any Observation Not Sufficient: Jammu & Kashmir High Court

Case Title: SSP Kathua Vs Baghwan Das

Citation: 2023 LiveLaw (JKL) 234

The Jammu & Kashmir High Court has made it clear that mere one-line certification by a doctor stating a patient's fitness, without any other observation, is inadequate in assessing the authenticity of the patient's dying declaration.

A bench of Justices Atul Sreedharan and Mohan Lal emphasised on the need for a thorough evaluation of the mental condition of the declarant to ensure that "embellishment in the form of hallucinated statements on account of an improper frame of mind is discounted".

64) Only National Freedom Fighters Eligible For Benefits Under Swantantrata Sainik Samman Pension Scheme, Not Militancy Fighters: J&K High Court

Case Title: Noor Ahmad Shah vs. Union of India and Ors.

Citation: 2023 LiveLaw (JKL) 241

The Jammu and Kashmir and Ladakh High Court held that individuals who fought against militancy do not meet the criteria for pension under the Swantantrata Sainik Samman Pension Scheme.

Justice Sanjay Dhar explained that the said pension scheme is particularly designed to honour those who actively participated in the National Freedom Struggle as prescribed in the SSA Pension 1980.

65) Jammu & Kashmir High Court Quashes Detention Orders Of Prominent Clerics Moulana Abdul Rashid Dawoodi, Mushtaq Veeri

Case Title: MOLVI AB. RASHID SHEIKH Vs U T OF J&K &anr. ..Mushtaq Ahmad Bhat @ Veeri V/s Union Territory of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 242

The Jammu & Kashmir High Court quashed the detention orders of two prominent clerics, Moulana Abdul Rashid Dawoodi and Mushtaq Ahmed Veeri, who were detained under the Public Safety Act (PSA) last year.

“Surprisingly, when no FIR is shown to have been registered against the petitioner, then how come 05 leaves of FIR etc. have been provided to him. This exhibits total non-application of mind and overzealousness on the part of the detaining authority, which casts serious doubt about the authenticity of the receipt”, the bench remarked.

66) Govt Notifications That Create, Extinguish Rights Should Be Published In Govt Gazette Unlike Those Declaring Existing Facts: J&K High Court

Case Title: Intizamiya Committee Dargah and Anr v. Union Territory of J&K and Ors.

Citation: 2023 LiveLaw (JKL) 247

The Jammu and Kashmir and Ladakh High Court held that while government notifications that create or extinguish rights and liabilities require mandatory publication in the Government Gazette, those that inform the public about existing facts can be deemed as directory in nature.

A bench of Justice Javed Iqbal Wani was hearing a petition challenging the takeover of a religious site Ziyarat Sharief Syed Khazir Sahab by the Jammu and Kashmir Wakaf Board.

67) No Father Would Falsely Accuse An Innocent Person Of Committing Rape On Mentally Unsound Minor Daughter: Jammu & Kashmir High Court

Case Title: Nikhil Sharma Vs State of J&K and others

Citation: 2023 LiveLaw (JKL) 248

The Jammu and Kashmir and Ladakh High Court upheld a rape conviction on the testimony of the father of the mentally unsound daughter observing that no father would falsely implicate an innocent person for such an offence.

A bench of Justices Rajnesh Oswal and Moksha Khajuria Kazmi was hearing an appeal against the judgment passed by the Additional Sessions Judge which convicted the appellant for the commission of offences under Sections 363 and 376 RPC.

68) FIR Can Be Registered On Complaint Received Via WhatsApp: Jammu & Kashmir High Court

Case Title: Dilshad Sheikh & Ors vs Sabha Sheikh

Citation: 2023 LiveLaw (JKL) 251

The Jammu and Kashmir and Ladakh High Court r held that registration of complaints via WhatsApp, coupled with acknowledgement by relevant authorities, is substantial compliance of Sections 154(1) and 154(3) of CrPC- provisions pertaining to registration of FIRs.

69) Offences Under Prevention Of Corruption Act Can Be Invoked Against Persons Discharging Public Duty, Not Only Public Servants: J&K High Court

Case Title: Sheikh Abdul Majeed Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 255

The Jammu & Kashmir High Court held that a broad interpretation of the term "public servant" under Section 2(c) of the Prevention Of Corruption Act is essential to curb the growing menace of corruption in the society imparting public duty.

Justice Wasim Sadiq Nargal also clarified that it would be inappropriate to limit the definition by an interpretation which would be against the spirit of the statute.

“In furtherance of the fight against corruption, a broad interpretation to the provisions of this statute is required to be given and the arms of this Act are required to be extended to the maximum. The offences under the P.C.Act can be invoked not only against a public servant but also against a person, who by virtue of his office has been discharging 'public duty'”.

70) Order 23 Rule 3(A) - Bar On Filing New Suits Only Applicable To Parties Involved In Compromise Decrees, Not To Strangers: J&K High Court

Case Title: Nikhat Nabi v M/s Fancy Fabrics & Ors (J&K Bank Ltd)

Citation: 2023 LiveLaw (JKL) 265

The Jammu and Kashmir and Ladakh High Court held that although Order 23, Rule 3-A of the Civil Procedure Code bars new suits from setting aside a decree based on a lawful compromise, the bar only applies to parties involved in the compromise and does not preclude strangers to the suit from filing independent suits to challenge the compromise decree.

Justice Javed Iqbal Wani also added that while the law allows strangers to the compromise to file independent suits, the supervisory jurisdiction of the High Court was not appropriate for the issues raised in this case.

71) UAPA | Appellate Authority Cannot Remand Case Back To Designated Authority Beyond Time Limit Prescribed U/S 25: J&K High Court

Case Title: G. M. Bhat v State of JK

Citation: 2023 LiveLaw (JKL) 266

The Jammu and Kashmir and Ladakh High Court observed that once the appellate authority recognises the lack of reasoning in the designated authority's order, it is imperative for the appellate body to either confirm or revoke the order under Section 25(6) of the Unlawful Activities (Prevention) Act within the time limit specified therein.

Justice Wasim Sadiq Nargal clarified that the appellate authority cannot remand the case potentially extending the statutory time limit beyond the prescribed 60 days for the designated authority to confirm or revoke the order.

72) CPC | Relevance Of Documents Primary Consideration Before Allowing Order XI Rule 12 Application: J&K High Court

Case Title: Rajan Gupta V/s Manoj Gupta

Citation: 2023 LiveLaw (JKL) 271

The Jammu and Kashmir and Ladakh High Court ruled that the primary consideration for the court before allowing an application under Order-XI Rule-12 CPC lies in determining the relevance of the documents, especially when a party seeks a specific document.

Justice Sindhu Sharma clarified that any document shedding light on the proceedings becomes pertinent, contributing to the understanding of the matter in dispute.

73) If Only One Conclusion Possible From Undisputed Facts, Possible Breach Of Natural Justice Does Not Automatically Imply Prejudice: J&K High Court

Case Title: Shamsher Singh Manhas V/s State of J&K and others

Citation: 2023 LiveLaw (JKL) 273

The Jammu and Kashmir and Ladakh High Court reiterated that in situations where only one conclusion was possible upon admitted or undisputed facts, a breach of natural justice does not automatically imply prejudice.

Justice Sindhu Sharma thus upheld the cancellation of the allotment of a shop in Jammu to the allotee petitioner.

“Even otherwise, if on undisputed and admitted fact, if only one view is possible, then even if no opportunity of hearing is provided, the impugned notice can[not] be quashed”.

74) Objections U/S 47 CPC Must Be Raised At Initial Stages, Cannot Be Entertained Once Court Has Issued Order For Effective Execution: J&K High Court

Case Title: Dr. Abid Hussain Vs State (now Union Territory) of J&K

Citation: 2023 LiveLaw (JKL) 279

The Jammu and Kashmir and Ladakh High Court clarified that objections under Section 47 CPC must be raised at the initial stages of the execution application and these objections cannot be raised once the court has already exercised its jurisdiction, issued an order for effective execution, and called for a compliance report.

Furthermore, Justice Javed Iqbal Wani stressed that objections cannot be raised once the respondents have committed to implementing the judgment and decree.

75) UAPA | Plea For Default Bail Filed A Day Before Expiry Of Authorized Custody Period Not Maintainable: Jammu & Kashmir High Court

Case Title: Syed Irfan Abdullah Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 280

The Jammu and Kashmir and Ladakh High Court has made it clear that a plea for default bail filed a day before the expiry of authorized custody period under the Unlawful Activities (Prevention) Act (UAPA) is not maintainable.

Finding that the appellant in this case had moved an application for default bail on the 90th day of the 90-days authorized custody period, a bench of Justices Sanjeev Kumar and Rajesh Sekhri observed,

"In the instant case we find that the appellant had moved an application for default bail on 11-04-2023 which was the 90th day of the authorized custody of the appellant. That being so, the application moved by the appellant for default bail was stillborn and not maintainable in law, We cannot lose sight of the fact that the prosecution has now presented the challan after completing the investigation within the period authorized by the NIA Court”.

76) Muslim Wife Can't Be Denied Maintenance When Factum Of Divorce Not Properly Established: Jammu & Kashmir High Court

Case Title: ZAHOOR AHMAD DAR Vs JAMEELA BANO & ANOTHER

Citation: 2023 LiveLaw (JKL) 282

The Jammu and Kashmir High Court ordered a Muslim man to maintain his wife till the factum of divorce, as had been claimed by him, is established.

The bench reasoned that denying maintenance would defeat the purpose of Section 488 of the Criminal Procedure Code (Pari Materia with sec 125 CrPC), which aims to provide temporary financial support to women during marital disputes.

77) NEET PG - Candidates Taking Seat In 3rd Round AIQ Counselling Can't Withdraw Or Participate In Further Rounds : J&K&L High Court

Case Title: DR. INSHA ABID Vs UNION OF INDIA & ORS.

Citation: 2023 LiveLaw (JKL) 288

Affirming the irrevocable nature of the third round of counselling under the All India Quota for NEET-PG admissions, the Jammu and Kashmir and Ladakh High Court has ruled that candidates who secure a seat in the third round of counselling under the All India Quota are prohibited from withdrawing or participating in any subsequent counselling rounds.

Spotlighting Clause 1.5 of Chapter 1 of the Information Bulletin & Counselling Scheme for NEE-PG (MD/MS/DNB/MDS) Counselling, Justice Sanjay Dhar observed,

“From a perusal of the aforesaid Clause, it is clear that once a candidate joins in 3rd round of counselling in All India Quota, he/she cannot be allowed to resign from the 3rd round and he/she cannot be allowed to participate in further rounds of counselling after joining in 3rd round of counselling of All India Quota”.

78) 'Tendency To Detain Critics Of Govt Abuse Of Preventive Detention Law' : High Court Quashes Detention Of Kashmir Journalist

Case : Sajad Ahmad Dar v. Union Territory of Jammu & Kashmir,

Citation: 2023 LiveLaw (JKL) 289

While quashing the detention of Kashmir-based journalist Sajad Ahmad Dar, the High Court of Jammu and Kashmir and Ladakh criticised the tendency of authorities to detain persons for simply being the critics of the government, terming it as an abuse of the preventive detention law.

"Such a tendency on the part of the detaining authority to detain the critics of the policies or commissions/ omissions of the Government machinery, as in the case of the present detenu- a professional media person, in our considered opinion, is an abuse of the preventive law," the Court observed in the judgment.

79) Lowering India's Reputation Not 'Terrorist Act'; Holding So Would Mean Any Criticism Of Centre Will Be UAPA Offence : J&K&L High Court

Case Title: Peerzada Shah Fahad v. Union Territory of Jammu and Kashmir & Anr.

Citation: 2023 LiveLaw (JKL) 292

While granting bail to Kashmir-based news journalist Peerzada Shah Fahad, the High Court of Jammu and Kashmir and Ladakh rejected an argument raised by the National Investigation Agency (NIA) that any act affecting India's dignity and lowering the country's global image will be a 'terrorist act' as defined under the Unlawful Activities Prevention Act.

If this argument is accepted, it would mean that any criticism of the Central Government will be a 'terrorist act' the division bench comprising Justice Atul Sreedharan and Justice Mohan Lal observed.

) S.25FFF ID Act | Enterprise Shutting Due To Financial Difficulties Not 'Unavoidable Circumstance' To Deny Retrenchment Compensation: J&K High Court

Case Title: Davinder Kumar Batra Vs The Authority Under Payment of Wages Act 1936 and Ors.

Citation: 2023 LiveLaw (JKL) 296

The Jammu and Kashmir and Ladakh High Court ruled that the closure of an enterprise due to financial difficulties cannot be deemed an "unavoidable circumstance" under Section 25-FFF of the Industrial Disputes Act, thereby reinforcing the entitlement of employees to retrenchment compensation.

Citing the explanation to Section 25-FFF of the Industrial Disputes Act, Justice Wasim Sadiq Nargal observed,

“..where an undertaking is closed down due to financial difficulties which is the case in the present petition, shall not be deemed to be closed down on account of unavoidable circumstances beyond control of the employer”.