4 Jan 2022 4:26 PM GMT
As we step into the year 2022, LiveLaw brings to you a bunch of important decisions from the Jammu And Kashmir And Ladakh High Court of 2021. This digest includes 55 important orders and judgments spread across 10 categories.Criminal Cases 1. Keeping Accused In Custody As Offences Alleged To Be Committed Are 'Serious' Would Amount To Inflicting Pre-Trial Punishment: Jammu & Kashmir...
As we step into the year 2022, LiveLaw brings to you a bunch of important decisions from the Jammu And Kashmir And Ladakh High Court of 2021. This digest includes 55 important orders and judgments spread across 10 categories.
1. Keeping Accused In Custody As Offences Alleged To Be Committed Are 'Serious' Would Amount To Inflicting Pre-Trial Punishment: Jammu & Kashmir HC [Suraj Kumar v. UT of J&K]
The Jammu and Kashmir High Court made it clear that an accused cannot be kept in custody merely for the reason that the offence alleged to have been committed by him is of serious nature. "Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him," the Single Bench of Justice Sanjay Dhar said while allowing the bail application of one such accused.
In the case at hand, the Petitioner-accused Suraj Kumar was booked under Sections 8/20 of NDPS Act, allegedly for being in possession of 500 gm contraband. The Trial Court had rejected his bail plea on the ground that the offence alleged to have been committed him is serious in nature and affects society in general and the young generation.
Stating that the Trial Court ought to have adopted a balanced approach in this case, the Single Judge remarked, "The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved."
2. Even If Prosecutrix Is Quite Friendly With A Man, He Doesn't Get License To Establish Sexual Relations Without Her Consent: J&K High Court [Aman Sagotra v. UT of J&K]
Noting that even if the prosecutrix was quite friendly with the petitioner for a long time, yet the same does not give a license to the petitioner/accused to have sexual relations with her, without her consent, the Jammu & Kashmir High Court recently denied the benefit of regular bail to petitioner for offence under Section 376 IPC.
The Bench of Justice Sanjay Dhar also observed that cases relating to the grant of bail in offence of rape are required to be approached differently as releasing of the accused on bail in such cases by adopting a liberal approach would be against the interests of the society.
The prosecutrix, in this case, had lodged a complaint with Judicial Magistrate, Hiranagar alleging that while she was studying in 10th class, she developed acquaintance with the petitioner-accused, whereafter, he developed illicit relations with her against her will and also promised that he will marry her at an appropriate time.
The complaint also stated that the petitioner accused had sexual relations with the complainant and he would threaten her with dire consequences in case she disclosed anything about this relationship to anybody.
3. 'Heinous Offence Against A Serving Law Officer': Jammu & Kashmir HC Refuses To Suspend Sentence Of 3 Convicts In Deputy Advocate General Murder Case [Vishal Sharma v. Union Territory of Jammu and Kashmir & Anr.]
A Division Bench comprising of Justices Tashi Rabstan and Justice Javed Iqbal Wani refused to suspend the sentence for the three convicts in the 2008 Deputy Advocate General Murder case. It said it cannot overlook the fact that the accused applicants have been held guilty and convicted for commission of a "heinous offence against the then serving Law Officer".
It further noted that they were convicted "after a full dressed trial" for about twelve years by the Trial Court upon evaluation of ocular, circumstantial, medical and scientific evidence.
It reiterated that the power of suspension of sentence by Appellate Court under Section 389 CrPC confers 'discretionary jurisdiction' and has to be "exercised sparingly".
4. Once Superior Officer Approves Closure, It Isn't Open For Officer Inferior In Rank To Direct Re-Investigation Of Case: Jammu & Kashmir High Court [Ajeet Chopra v. Union Territory of J&K & Ors.]
A Single Bench of Justice Sanjay Dhar ruled that once a superior officer of Police approves the closure of a case (as not admitted), it is not open to an officer who is inferior in rank to direct reinvestigation of the case.
It added that if at all there was any scope for re-investigation of the case, the officer who is inferior in rank could have placed his opinion before his superior officer, instead of taking it upon himself and directing further reinvestigation of the case.
With these observations, the High Court, quashed an order issued by Superintendent of Police, City South, Jammu directing for re-investigation in a case, which was already closed by his superior, Senior Superintendent of Police, Jammu, and gave the liberty to the relevant authorities of the Police Department: "To take appropriate disciplinary action against respondent No.3 (Superintendent of Police, City South, Jammu) for having acted in a manner which smacks of insubordination."
5. Long Incarceration Not Ground For Bail In Case Of Severe Offences Like Murder: Jammu & Kashmir HC Denies Bail To Undertrial Incarcerated For Over 7 Years [Sohan Singh v. UT of J&K]
"Case where the gravity of offence alleged against an accused is severe, the bail cannot be granted only on the ground of long incarceration," observed a Single Bench of Justice Sanjay Dhar. Holding thus, it refused to enlarge on bail a murder accused incarcerated pending trial since December 2012.
The Court noted that some delay in completion of the trial has taken place on account of restrictions in the physical hearing of cases due to the COVID-19 pandemic but that is an eventuality beyond the control of everybody and the same cannot be the sole ground for enlarging an accused on bail, particularly in a heinous offence like murder.
6. Act Of Accused Taking Off His Own & Victim's Trousers Without Penetration Amounts To Sexual Assault Under POCSO, Not 'Attempt To Rape': J&K High Court
The High Court held that the act of an accused to take off his own and victim's trousers, in the absence of penetration, does not amount to 'attempt to rape' within the meaning of Section 376/511 of IPC. However, the Court has said that the act may amount to sexual assault under Section 7/8 of the POCSO Act.
Justice Sanjeev Kumar granted bail to a man accused of offences under sec. 376 (punishment for rape), 354 (Assault or criminal force to woman with intent to outrage her modesty), 511 (Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonments) of IPC and sec. 8 (Punishment for sexual assault) of Protection of Children from Sexual Offences Act, 2012.
Also Read: Jammu & Kashmir High Court Renamed As 'High Court Of Jammu And Kashmir And Ladakh'
7. Undertrial Prisoners Don't Have Right To Dictate Choice Of Prison; Authority Not Obligated To Seek Trial Court's Permission: J&K HC
The Court held that an Undertrial Prisoner does not have a right to dictate his choice of prison for lodgement during the trial and as such, there is no question of providing him an opportunity of being heard in this regard.
Justice Sanjeev Kumar also held that since the permission of the Court is not mandatory before shifting the undertrial from one prison to another, in such a situation, the Court does not perform any judicial or quasi-judicial function, which may necessitate hearing of the undertrial before granting permission.
8. In Absence Of Demonstrated Prejudice To Accused, Omission To Record His Statement U/S 242 CrPC(J&K) Not Fatal: Jammu & Kashmir High Court (Abdul Majeed Dhar v. Javed Ahmed Bhat)
The Court has held that in the absence of any prejudice to the accused or demonstrated the failure of justice, omission to record his statement under Section 242 of CrPC(J&K) cannot be held to be fatal to the validity of the trial.
The provision stipulates that the particulars of the offence alleged against the accused are required to be stated to him and he would be asked if he has any cause to show cause as to why he should not be convicted.
9. Prosecutrix Indulged In Sexual Relations With Two Persons In Same Year On Alleged Promise Of Marriage: J&K High Court Quashes Rape FIRs [Suresh Kumar & Anr v. Union Territory of Jammu & Kashmir & Anr.]
The High Court recently quashed two FIRs lodged by the same woman against two men, alleging rape on the pretext of false promise to marry.
From the facts and material produced before the Court, Justice Rajnesh Oswal found that the prosecutrix had indulged in a sexual relationship with two persons on the promise of marriage in the year 2018.
10. J&K&L HC Denies Bail To POCSO Accused On Alleged Crime Of Abetment To Suicide & Sexual Assault On Promise To Marry [Ranjit Singh v. Union Territory of J&K]
The High Court dismissed the bail application of an accused charged with abetment of suicide and sexual assault on a minor girl. Justice Javed Iqbal Wani refused to consider the general contention made by the accused-petitioner that there is no direct evidence connecting him with the commission of the alleged offence. In rejecting the said contention, it relied on the Supreme Court judgment in the case of Neeru Yadav vs. State of Uttar Pradesh and Another (2014).
Government Replies/Directions To Government-Related Cases
1. Not Possible For Govt. To Have Anti-Doping Agency In Each State/Union Territory Separately: Jammu & Kashmir High Court [Arun Singh Manhas v. Union of India & Anr.]
A Bench of Chief Justice Pankaj Mithal and Justice Ali Mohammad Magrey dismissed a plea seeking the establishment of a State Anti-Doping Agency on the guidelines of the National Anti-Doping Agency. It observed, "It may not be possible for the Government to have the Anti-Doping Agency in each State or Union Territory separately as it all depends on the financial conditions and the priorities before the Government."
2. Consider Establishing State Commission For Protection Of Child Rights In The UT Of Jammu & Kashmir: High Court To Govt.
The Jammu & Kashmir High Court on Tuesday (16th February) directed the State Government to consider the establishment of the State Commission for Protection of Child Rights.
The Bench of Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani was dealing with a Public Interest Litigation seeking to espouse the cause of child rights under the provisions of the Commissions for Protection of Child Rights Act, 2005.
3. Jammu & Kashmir High Court Seeks Centre's Response On Functioning Of Armed Forces Tribunal in Jammu [Mohd Rafiq Malik v. Union of India & Ors.]
A Single Bench of Justice Sanjeev Kumar sought a response from the Central Government on the functioning of the Armed Forces Tribunal in Jammu. It granted four weeks' time to the Assistant Solicitor General, Vishal Sharma, to file a counter affidavit in the matter.
The direction was made on a writ petition filed by ex-army personnel, Mohd Rafiq Malik, complaining that the Armed Forces Tribunal has not been functioning in Jammu ever since the pandemic hit, thus depriving him of access to Justice.
4. Jammu & Kashmir High Court Quashes State's Circular Mandating Re-Registration Of Vehicles Registered Outside J&K [Zahoor Ahmad Bhat v. Government of J&K & Ors.]
A Division Bench at Srinagar comprising of Justices Vinod Chatterji Koul and Ali Mohammad Magrey quashed a Circular issued by RTO, Kashmir, mandating the vehicle owners who have purchased their vehicles from outside Jammu and Kashmir, bearing outside registration mark, to apply for a new registration mark in the UT.
It observed that the circular does not meet the requirement of Section 47 of the Motor Vehicles Act and unnecessarily affects vehicles entering the UT. Section 47 of the Act provides that when a motor vehicle registered in one State has been kept in another State, for a period exceeding 12 months, the owner of the vehicle shall apply to the Registering Authority, within whose jurisdiction the vehicle then is, for the assignment of a new registration mark.
5. "Explore Possibility Of Having A Uniform Legislation Governing The Places Of Worship": Jammu & Kashmir High Court To UT Admin
A Bench of Chief Justice Pankaj Mithal and Justice Sanjay Dhar asked the Union Territory Administration to explore the possibility of having uniform legislation governing the places of worship. It also sought a report from Deputy Commissioner Baramulla as to whether any land of the temple has been encroached upon and is in unauthorized possession of any third party.
The Court was hearing a plea filed with regard to the management and preservation of the property of a temple in terms of provisions of Jammu & Kashmir Migrant Immovable Property (Preservation and Restraint on Distress Sales) Act, 1997.
Also Read: Successive Govts Dragging Their Feet On Setting Up Of Special Courts Under NDPS Act, Resulting In Delayed Disposal: Jammu & Kashmir High Court
6. Only Those Who Are Responsible For Public Order Maintenance Must Judge What National Security, Public Order Or Security Of State Needs: J&K&L HC [Muntazir Ahmad Bhat v. Union Territory of JK & Anr.]
While upholding the detention of an alleged worker of Jaish-e-Mohammad (JeM), under the J&K Public Safety Act, 1978, the Jammu & Kashmir And Ladakh High Court last week observed that 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.
Observing that it is necessary to take preventive measures and prevent a person bent upon perpetrating mischief from translating his ideas into action, the Bench of Justice Tashi Rabstan stressed that preventive detention laws are devised to afford protection to society.
7. 'Attacks Govt Over Abrogation Of Art. 370 In Garb Of PIL': Jammu & Kashmir High Court Imposes 10K Cost On Law Graduate
The High Court has dismissed a PIL seeking reopening of State Human Rights Commission, Women Commission, and Accountability Commission in Jammu & Kashmir for adjudication of pending complaints. The Court observed that the plea was politically motivated, and targeted the Government over the abrogation of Article 370.
"The averments made in the petition reveal that the petitioner is not really interested in the establishment of the above foras but to attack the government over the deletion of the special status granted to the J&K," a Bench of Chief Justice Pankaj Mittal and Justice Rajnesh Oswal observed.
Students/Teachers/Education/Service related Cases
1. "No Vested Right For Students On Mode Of Exam": Jammu & Kashmir High Court Dismisses Plea By Law Students Seeking Online Exams [Syed Ainain Qadri v. UGC & Ors.]
While declining the prayer of the petitioners to conduct their examination through online mode, a Bench of Justice Sanjay Dhar made it clear that "there cannot be any vested right for the students with regard to the mode in which the examination of students is to be conducted."
2. Employer Is Justified In Excluding Candidates With Higher Qualification For Recruitment To A Particular Post: J&K&L High Court[Firdous Ahmad Ganai v. State of JK &Ors]
The Court has recently observed that any higher qualification than the one prescribed for a particular post may not be a suitable qualification and that the employer, in its wisdom, is justified in excluding candidates with higher qualifications from the ambit of selection.
The Bench of Justice Sanjay Dhar and Justice Ali Mohammad Magrey observed that the laying down of the criteria of the minimum and the maximum qualification for the Class-IV post as matric and 10+2, respectively, is neither irrational, unreasonable nor arbitrary
Personal Liberty/Freedom of Speech/Constitutional Importance Cases
1. "He Demeaned Indian Forces But Sedition Case Against Him Is Abuse Of Law": J&K HC Quashes Case Against Councillor For Remarks During Indo-China Face-Off
The Jammu & Kashmir High Court on Thursday (11th February) quashed a sedition case filed against an elected Councillor of LAHDC (Ladakh Autonomous Hill Development Council, Leh) who was accused of making derogatory remarks against the leadership of the Country and against the Armed Forces of the Country.
While exercising its power under Section 482 CrPC the Bench of Justice Sanjeev Kumar quashed the Case and opined,
"The conversation contained in the audio clip, if examined in its entirety, does not make out a case of sedition or the offences under Section 153A, 153B, 505 read with Section 120-B IPC and would be saved by the fundamental guarantee to free speech and expression assured to the citizens of this Country by Article 19(1)(a) of the Constitution of India."
2. "Not Standing Up For National Anthem Or Standing Quiet May Amount To Disrespect & Failure To Adhere To Fundamental Duties; Not An Offence Per Se": J&K HC
Justice Sanjeev Kumar held that not standing up for National Anthem or singing it may amount to disrespect and failure to adhere to the fundamental duties as enshrined in the Constitution, however, the same is not an offence under the Prevention of Insult to National Honour Act, 1971.
The Court quashed an FIR against a college Lecturer for allegedly showing disrespect to the National Anthem in the function conducted on 29th September 2018 for celebrating a surgical strike conducted by the Indian Army.
3. Journalist Alleges Harassment At The Hands Of Police: Jammu & Kashmir And Ladakh HC Issues Notice to J&K Administration [Iftikhar Rasheed v. Union Territory of JK & Ors.]
The High Court issued notice to the UT J&K Administration on a plea by a Journalist alleging harassment at the hands of the police. Justice Ali Mohammad Magrey issued notice to the administration and the police officials observing thus: "...citizen of this Country has come before the Court with a serious complaint against the police officers, who are stated to be involved in harassment and threatening to the petitioner and his family without any reason, logic, or justification."
4. [Live-In Relationship] 'Right To Exercise Assertion Of Choice Is Inseparable Part Of Liberty & Dignity': Jammu & Kashmir HC [Ridhima & Anr. v. UT of J&K]
While dealing with the protection plea filed by a couple in a live-in relationship, the High Court has observed that the right to exercise assertion of choice is an inseparable part of liberty and one's dignity.
Justice Sindhu Sharma observed thus:
"It is settled proposition that right to exercise assertion of choice is an inseparable part of the liberty and dignity and the same should not except in accordance with the procedure established by law."
5. Under Which Law News Portals Are Required To Be Registered/Licensed: Jammu & Kashmir And Ladakh High Court Seeks Govt. Response
The Ladakh High Court has sought the pointed reply of the Jammu & Kashmir Government on the provisions of law under which, the news portals, if at all are required to be registered or licensed
Chief Justice Pankaj Mithal and Justice Sanjay Dhar was hearing the plea filed by NGO, Jammu and Kashmir Peoples Forum highlighting the mushrooming growth of news agencies on social media especially the news portals which are allegedly involved in circulating fake news.
6. No Fetters Can Be Placed On Freedom Of Press By Registering FIR Against Reporter For Publishing News Obtained From Identifiable Source: J&K HC [Asif Iqbal Naik v. State of J&K and others]
The High Court has recently observed that no fetters can be placed on freedom of the press by registering an FIR against a journalist for publishing a news item on the basis of information obtained from him from an identifiable source.
"Needless to say the press is often referred to as the fourth pillar of democracy and freedom of the press is vital for the functioning of any democratic country like India. No fetters can be placed on the freedom of press by registering the FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source," Justice Rajnesh Oswal observed.
7. J&K And L High Court Quashes FIR Against Activist Sushil Pandit For His Tweet On Killing Of CRPF Jawans Based On Rumour [Sushil Pandit v. State of J&K & Anr]
The Court quashed an FIR registered against Activist Sushil Pandit for his 2018 tweet based on rumour regarding the death of 5 CRPF Jawans during the Ramzan ceasefire in the state.
Essentially, he had tweeted (and deleted later known after coming to know about its falsity) thus: "Just heard, five CRPF jawans martyred in Pampore. #Ramzan ceasefire is working. Question is who is it working for?"
8. Infringement Of Right Of Two Adults To Choose Each Other As Life Partners Is A Constitutional Violation: J&K&L High Court [Saba Wani & Anr. v. Union Territory of J&K and others]
The Court observed that when two adults consensually choose each other as life partners, it is the manifestation of their choice that is recognised under Articles 19 and 21 of the Constitution and the violation of such right is a constitutional violation.
Hearing a protection plea filed by a married couple, the Bench of Justice Tashi Rabstan further observed that consent of family or community or clan is not necessary once two adult individuals agree to enter into wedlock and their consent has to be piously given primacy.
Cases of Public Importance/Affecting Society
1. Jammu & Kashmir High Court Bans Constructions, Felling Of Trees In Gulmarg To 'Preserve Its Glory' [Mohammad Rafiq Zargar v. State of J&K & Ors.]
While hearing a plea seeking restoration of prestige and pristine glory of a world-renowned tourist resort, viz. Gulmarg, a Bench of Justice Ali Mohammad Magrey and Justice Vinod Chatterji Koul directed the authorities to make sure that no further construction is allowed within the earmarked area of the Gulmarg tourist resort.
Access full report to read other directions
2. 'Approach Chief Secretary With A Representation': Jammu & Kashmir High Court Disposes Plea Seeking Law Prohibiting Cow Slaughter [SAVE v. Union of India & Ors.]
A Bench of Chief Justice Pankaj Mithal and Justice Rajnesh Oswal disposed of a plea seeking direction to enact a law prohibiting the slaughter of cows and its progeny, ox, bull, buffalo etc in the Union Territory of J&K by giving petitioner the liberty to approach Chief Secretary. It specifically observed that it is settled law that no writ of mandamus would lie for issuing direction for enacting a particular law.
3. Majority Of Village Population Affected By Hearing & Speech Impairment: Jammu & Kashmir High Court Seeks Action Taken Report [Court on its own Motion v. State of J&K & Ors.]
A Division Bench comprising of Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani asked the Government about the steps it is taking to ameliorate the peculiar conditions of a village in Jammu, whose 80% population suffers from hearing and speech impairment. The Bench was also concerned about the social welfare of the affected population and it, therefore, directed the Government to file an affidavit indicating the proposed/ sanctioned (i) pensionary benefits and (ii) rehabilitation measures.
4. Jammu & Kashmir High Court Directs FIR Over Online Loan Cheating Through Facebook [Vivek Sagar v. UT of J&K & Ors.]
A Single Bench of Justice Dhiraj Singh Thakur allowed a criminal application seeking directions for registration of FIR in a case related to an online fraudulent loan offer through Facebook.
It noted that the Petitioner's application under Section 156(3) CrPC was disposed of by the concerned Magistrate with prima facie finding that the facts disclose commission of a cognizable offence by the accused. However, the Magistrate fell short of issuing directions for the registration of FIR.
5. Unfortunate That Some Ex-Ministers/Legislators/Officers, Etc., Are Unauthorizedly Staying In Govt. Residence: J&K High Court
The Jammu & Kashmir High Court underlined that natural resources, public lands and public goods, like Government bungalows/official residence, are public property that belong to the people of the country.
The Bench of Justice Ali Muhammad Magrey and Justice Vinod Chatterji Koul directed the Jammu & Kashmir government to take all steps for eviction of unauthorized/ illegal occupants (including former Ministers, Legislators, Retired Officers, and Politicians) from Government accommodation and recovery of rent thereof, earlier in point of time.
Significantly, the Bench also remarked,
"It is unfortunate that some former Ministers/ Legislators/ Retired Officers/ Politicians/ Political persons, etc., have illegally/ unauthorizedly managed to continue to stay in the residential accommodation provided to them by the Government of Jammu and Kashmir, though they are no longer entitled to such accommodation."
6. 'Until State Is Held Vicariously Responsible For Menace Of Spurious Drugs, Its Department Will Never Swing Into Action': Jammu & Kashmir High Court [UT of J&K & Ors. v. NHRC & Ors.]
A Division Bench comprising of Chief Justice Pankaj Mithal and Justice Sindhu Sharma upheld an order of the National Human Rights Commission, holding the Government vicariously liable for lapses on part of its Drugs Department, in keep a regular vigil on the contents of drugs being offered for sale.
"Until and unless, the State is held vicariously responsible for such actions or omissions, the Government or its department would never swing into action effectively so as to control the menace of sale of contaminated or spurious drugs. A welfare State cannot escape from the responsibility to compensate the irreparable loss so caused to the families of the victims due to lapses of the Department," the Court said while upholding the order for payment of ₹3,00,000/- each to the next of kins of ten children who lost their lives due to consumption of a spurious cough syrup in the State in December 2019.
7. 'Court Not Powerless': Jammu & Kashmir High Court Issues Directions For Recovery Of 24-Days-Old Girl Child Allegedly Kidnapped By Father's Family [Mahrukh Iqbal v. Union Territory of JK and Ors.]
The High Court is hearing a matter relating to a 24-days-old missing girl child, abducted by her own father and grand-parents, against the wishes of her mother. The Petitioner, i.e., the mother, apprehends that the infant will be killed by her in-laws who are reportedly absconding.
Justice Ali Mohammad Magrey has expressed the importance of the mother in the life of a suckling-baby and has taken a strong note on the non-responsive conduct of the father and his family, who failed to produce the infant before the Court despite clear directions.
8. "Young Police Officer Lynched To Death By Mob Putting Humanity, Spirit Of Kashmiriyat To Shame": Jammu & Kashmir HC Denies Bail To Accused [Peerzada Mohammad Waseem v. Union Territory Of J&K]
The Court has denied bail to a man accused of lynching a Deputy S.P. of 3rd Battalion Security after observing that his act has put humanity and spirit of Kashmiriyat to shame.
Calling it a heinous and serious offence, Chief Justice Pankaj Mithal and Justice Sanjay Dhar observed:
"It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course."
Cases that made News
1. Mehbooba Mufti's Plea For Issuance Of Passport: Jammu & Kashmir HC Seeks External Ministry, Govt's Response Within 2 Weeks [Mehbooba Mufti v. Union of India & Ors.]
A Single Bench of Justice Ali Mohammad Magrey sought government's response on a plea filed by the former Chief Minister of J&K & Peoples Democratic Party (PDP) president Mehbooba Mufti over delay in issuance of passport to her allegedly for want for police verification.
The Court was informed that Mufti had applied for a fresh passport in December 2002 as her passport expired on 31st May. It was contended before the High Court that as per circular instructions issued Ministry of External Affairs Government of India, the passport of an individual is to be issued within 30 days but in the instant case, despite a lapse of three months, the passport has not been issued to her.
2. BCCI To Run The Management And Administration Of J&K Cricket Association Till Its Elections As Interim Measure: J&K HC [City Cricket Club Srinagar & Ors. v. Board of Control for Cricket in India & Ors.]
A division bench comprising of Justice Ali Mohammad Magrey and Justice Puneet Gupta directed the Board of Control for Cricket in India (BCCI) to run the management, control and administration of the Jammu and Kashmir Cricket Association (JKCA) as an interim measure till a new body of JKCA is elected whereafter the same shall be handed over to the newly elected office bearers of the Association.
The judgment was given in a bunch of appeals and petitions challenging the order of the single judge directing that Mr Justice C. K. Prasad, retired Judge of the Supreme Court and Mr Justice Syed Rafat Alam, Chief Justice of M.P. and Allahabad High Courts shall act as Administrators of the J&K Cricket Association to ensure its free and fair elections.
3. Jammu & Kashmir High Court Dismisses Mehbooba Mufti's Plea For Issuance Of Passport [Mehbooba Mufti v. Union of India & Ors.]
A Bench of Justice Ali Mohammad Magrey dismissed former Chief Minister of J&K & Peoples Democratic Party (PDP) president Mehbooba Mufti's plea seeking issuance of passport to her.
It observed that the Court's scope in the matter of grant or otherwise of passport (in favour of an individual) is very limited. "The Court could only direct the concerned authorities to expeditiously consider the case of an individual in the light of the mandate of the scheme of law governing the subject," the order stated.
4. Triple Talaq Pronounced Prior To 'Shayara Bano' Judgment Also Null & Void: Jammu & Kashmir High Court [Showkat Hussain v Nazia Jeelano]
The Court held that the Supreme Court judgment in Shayara Bano case would apply to 'triple talaq' pronounced prior to passing of the said judgment. In this case, a 'husband' had approached the High Court seeking to quash proceedings initiated under Domestic Violence Act against him contending that he had already divorced his wife.
5. Reporting Of Allegations About Official Duties Of Public Figure Not Defamation: J&K&L HC Quashes Complaint Against Arnab Goswami, Aditya Raj Kaul [Aditya Raj Kaul and Ors. V. Naeem Akhter]
The High Court quashed a defamation complaint filed by the senior leader of Peoples Democratic Party (PDP), Naeem Akhter, against the Editor-in-Chief of Republic TV, Arnab Goswami, and journalist Aditya Raj Kaul.
The Bench of Justice Sanjay Dhar stressed that the press has a bounden duty to bring to the notice of the viewers and readers the day-to-day events, particularly those relating to public figures and public servants concerning their actions/omissions affecting the public at large.
6. All Hindus Living In Kashmir Valley Cannot Claim Benefits Meant For Kashmiri Pandits: J&K High Court [Rajeshwar Singh & Ors v. Union of India & Ors.]
The High Court has held that all Hindus residing in the Valley cannot be said to be a Kashmiri Pandit, thereby allowing them to avail the benefits of the schemes meant exclusively for the Pandits.
While disposing of the plea seeking benefit to the petitioners, under the package for return and rehabilitation of Kashmiri migrants, Justice Sanjeev Kumar held that, "In the absence of a specific definition of the term "Kashmiri Pandit family," the only way to find out the true meaning of the term is to apply the common parlance principle. "Kashmiri Pandits" is a separately identifiable community distinct from other Hindus residing in the Valley like Rajputs, Brahmins other than Kashmiri Pandits, Scheduled Castes, Scheduled Tribes, and many others."
1. E-Connectivity Issues At Courts In Jammu & Kashmir: High Court Directs BSNL To Convene Meeting With IT Staff & NIC; Submit ATR [Court on its own motion v. Government of India & Ors.]
Taking note of connectivity issues faced by many Courts in the Union Territory, a Division Bench comprising of Chief Justice Pankaj Mithal and Justice Sindhu Sharma directed Bharat Sanchar Nigam Limited (BSNL) to sit with the IT Officers and resolve all the issues cropping up in the High Court as well as in the Subordinate Courts.
The Bench was referring to three issues: (i) e-Connectivity of Courts; (ii) e-connectivity of High Court; and (iii) Lack of connectivity/communication in areas of UTs of J&K and Ladakh. During the hearing, Amicus Curiae Monika Kohli informed the Bench that BSNL is unable to provide proper and suitable services.
2. Judge Suspended By Jammu & Kashmir And Ladakh HC On Bar Association's Complaint Reinstated On 'Humanitarian Ground'
The High Court revoked the suspension of the order of Civil Judge Imtiyaz Ahmad Lone, who was last year suspended following a complaint filed by Bar Association, Uri. The suspension has been revoked on 'humanitarian grounds' taking into account the serious health issues that are being faced by Lone. He shall be paid full salary from the date of his reinstatement. He has been posted at Srinagar Wing of the High Court against the Leave Reserve post of Civil Judge (Senior Judge).
3. Letters Patent Appeal Not Maintainable Against Interlocutory Orders Passed In Proceedings For Contempt: Jammu & Kashmir High Court
The Court has recently held that Letters Patent Appeal under Clause 12 of the Letters Patent is not maintainable against orders passed in proceedings for contempt which are of interlocutory nature and does not determine any right or issue between the parties finally.
COVID Related Cases
1. 'Appropriate Steps Being Taken For Vaccination Of Under-Trials & Prisoners': J&K Administration Tells High Court [Naseem Qadri & Anr. v. Union of India & Ors.]
The Government of Union Territory of Jammu and Kashmir informed a Division Bench comprising of Chief Justice Pankaj Mithal and Justice Rajnesh Oswal that it is taking all relevant steps to ensure that all prisoners, whether convicted or under-trial, are inoculated against the Covid-19 virus.
The development comes in a PIL filed by one Naseem Qadri, seeking registration and the vaccination of all prisoners in the UT.
2. Covid-19: Jammu & Kashmir High Court Issues Directions For Vaccination Of Lawyers; Financial Assistance [Court on Its Own Motion v. Govt of India]
A Division Bench comprising of Chief Justice Pankaj Mithal and Justice Sanjay Dhar directed the UT administration to ensure that lawyers in the age group of above 45 years are vaccinated against the Covid-19 virus, within a week. It further ordered that lawyers in the age-group 18-45 should be given priority and should be vaccinated within two weeks after registering on the COWIN app.
It has also requested the Government to consider for making some additional budgetary allocation for families of Advocates affected by Covid-19, as the funds available with the Bar may not be sufficient to meet the requirement.
3. COVID19- Plea Seeking Financial Assistance, Medical & Insurance Cover For Lawyers: Jammu & Kashmir High Court Seeks Govt's Response [M. Abubakar Pandit v. UT of J&K & Ors.]
A Single Bench of Justice Dhiraj Singh Thakur sought the response of UT of J&K on a plea filed seeking financial assistance, medical and life insurance for lawyers who are facing grave financial hardship on account of lockdown due to the COVID-19 pandemic.
4. COVID Management- Advocate General Will Respond To Each And Every Grievances Within Two Weeks: Jammu And Kashmir High Court [Court on its own motion v. Govt of India]
Dealing with a suo moto case registered for protecting the life of the citizens by ensuring adequate medical help both in terms of medical advice and life-supporting material amid the Covid-19 pandemic, a Division Bench comprising of Chief Justice Pankaj Mithal and Justice Sanjay Dhar directed the Lawyers to submit their suggestion to the Advocate General.
It further directed AG to respond to each and every grievance and suggestion within two weeks and if necessary, to take up those matters with the State Government and try to resolve them as early as possible.
5. 'Traditions & Customs Have To Yield To The National Interest': Jammu & Kashmir High Court Declines Plea For Handing Over Covid Dead Bodies To Families [Court on its own motion v. Union Territory of J&K & Ors.]
"Larger public interest always prevails over personal rights and the traditions and customs have to yield to the national interest especially in these unprecedented times," observed a Bench of Chief Justice Pankaj Mithal and Justice Vinod Chatterji Koul while refusing to pass directions for handing of over dead bodies of Covid-19 victims to their next of kin.
It observed that the guidelines issued by the Centre on Covid-19 dead body management sufficiently takes care of the religious sentiments of the family members and do not require any interference. It noted that the guidelines accord permission to view the face of the dead body by unzipping the bag and to perform last rites and rituals without touching the body.
6. "Take Effective Steps As Per Centre's Guidelines For Vaccination Of Disabled Persons In Union Territory": Jammu & Kashmir High Court [Humanity Welfare Organization Helpline v. Union of India & Ors.]
Issuing notice in a plea seeking vaccination for the disabled persons as a special category, a single judge bench comprising of Justice Ali Mohammad Magrey asked the Centre and the Government of Jammu and Kashmir to take effective steps as per Centre's guidelines for vaccinating such persons.
It also directed the Additional Chief Secretary, Health and Medical Education Department of Jammu and Kashmir UT to file an affidavit by the next date of hearing indicating steps for Vaccination of disabled persons in the UT. The matter will now be heard on July 8.
Advocates/Bar related cases
1. Jammu And Kashmir High Court Stays Fresh Appointment Of Law Officers Except Advocate General [Sushil Chandel v. Union Territory of J&K & Ors]
Noting that the matter is of seminal importance, Justice Sanjeev Kumar stayed the appointment of Law Officers other than the Advocate General in a plea challenging the continued existence of the notification issued by the Department of Law, Justice and Parliamentary Affairs, inviting applications for engagement as Standing Counsel.
The petitioner challenged an advertisement issued in pursuance to the Jammu and Kashmir Law Officers to appoint law officers in the exercise of powers conferred by Section 124 of the Constitution of Jammu and Kashmir read with Section 492 of J&K Cr. P. C. The petitioner argues that after the promulgation of the J&K Reorganization Act, 2019, the Constitution of Jammu and Kashmir and State Criminal Procedure Code have been repealed and have ceased to be in existence.
2. Jammu & Kashmir: High Court DB Stays Single Judge Order Stopping Fresh Appointment Of Law Officers [Union Territory of Jammu and Kashmir and Others v. Sushil Chandel]
A Division Bench of the Court has stayed the interim order passed by a single-judge, staying fresh appointment of Law Officers (other than the Advocate General) in the Union Territory.
Chief Justice Pankaj Mithal and Justice Puneet Gupta remarked that the single-judge transgressed the limits of judicial review in passing the impugned stay order.
1. 'Procedural Requirements Are The Only Safeguards Available To A Detenue': J&K High Court While Quashing Detention Order (Wasim Ahmad Trag v. Union Territory of J&K and Ors.)
Setting free a detenu from preventive custody, the High Court has held that the procedural requirements are the only safeguards available to the detenue and therefore, they must be strictly complied with.
Justice Rajnesh Oswal made it clear that the Court cannot go behind the subjective satisfaction of the detaining authority and thus, procedural requirements are to be followed scrupulously, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.
2. "IO's Request Can't Substitute Public Prosecutor's Report To Extend Detention Period Under UAPA Beyond 90 Days": J&K&L High Court [Showkat Ahmad Sofi v. State of J&K and Ors.]
In a significant ruling, the High Court recently held that the request of an Investigating officer for extension of time (of detention beyond 90 days) can't be a substitute for the report of the public prosecutor under the provisions of Section 43D (2)(b) of UAP Act. The Bench of Justice Dhiraj Singh Thakur and Justice Vinod Chatterji Koul stressed the importance of scrutiny of detention under UAPA by a Public Prosecutor so as not to leave a detenu in the hands of I.O.
3. Extremism, Radicalism, Terrorism Are Most Worrying Features Of Contemporary Life: J&K&L HC Upholds Alleged JEM Worker's Detention [Muntazir Ahmad Bhat v. Union Territory of JK & Anr.]
While upholding the detention of one Muntazir Ahmad Bhat, an alleged worker of Jaish-e-Mohammad (JeM), under the J&K Public Safety Act, 1978, the Court observed that extremism, radicalism, terrorism have become the most worrying features of contemporary life.
The Bench of Justice Tashi Rabstan further observed that the basic edifices of a modern State, like democracy, State security, public order, rule of law, sovereignty and integrity, basic human rights, etcetera, are under attack of such extreme, radical, and terror acts.