The Jammu & Kashmir and Ladakh High Court has rejected the petition of a detenue, who had challenged his detention order by stating that divulging sensitive information on detention order of a person arrested under the Public Safety Act (PSA) may prove counter-productive to the maintenance of normalcy and security in the Valley, while also becoming a great threat to the nation, lest it lands in the hands of a separatist group.

The Bench of Chief Justice Pankaj Mithal and Justice Moksha Kazmi Khajuria made the above remarks while hearing the petition by a 27-year-old, who was detained on the directions of the District Magistrate Pulwama on October 30, 2021, in order to prevent him from indulging in any subversive activity prejudicial to the security of the state.

The High Court ruled that vagueness of grounds of detention cannot be considered without keeping in view the situation prevailing in the area specially in Kashmir, which has been greatly affected by militancy in the past.

It noted that a plain reading of the grounds of detention would establish that the allegations made against the petitioner-appellant were very specific and there was no vagueness in the same.

It added that the grounds of detention clearly stated that the youth was ‘affiliated’ with The Resistance Front (TRF), an organisation working with the aim and object to ‘secede the Union Territory of JK from the Union Territory of India’ and ‘annex it with Pakistan’.

The two-Judge Bench observed that the dossier specifically pointed that the accused was “in connivance” with the terrorists and providing them with logistic support, including transportation of arms for terrorists from one place to another through unconventional and safe passages.

The High Court added that the accused has been identified after “hard coordinated efforts of the various agencies, which revealed his linkage with terrorist outlets”.

However, the court accepted the argument that the detenu was not provided complete material, like the dossier relied upon by the District Magistrate in passing the impugned order, making him unable to file an effective and purposeful representation.

The Bench then allowed the appeal setting aside the verdict and order of the writ court and the impugned order of detention.

Earlier, the accused had challenged the detention order before a Single-Judge bench, which after considering the matter, dismissed his plea and upheld the detention on May 12, 2022.

Case title: Murtaza Rashid vs UT of J&K

The Jammu & Kashmir and Ladakh High Court on Wednesday rejected the bail application of Army man charged with abetment of suicide of a minor girl.

Justice Javed Iqbal Wani passed the order while hearing a bail application filed by Ranjit Singh. The petitioner had sought bail in FIR registered at Police Station, Arnia, for commission of offences punishable under Sections 305/376 IPC read with Section 3/4 of the POCSO Act.

According to the prosecution, on July 27, 2018 at 16:30 hours PCR, Jammu, telephonically informed the PCR Arnia, that a woman consumed poison and passed away during treatment at GMC Jammu in suspicious conditions requiring ascertainment of her death whereupon the Inquiry Officer completed all formalities at GMC Jammu and handed over the body to her family for last rites.

Statements of witnesses are stated to have been recorded and viscera of the deceased sent to FSL Jammu for chemical analysis. The mother of the deceased is stated to have presented one hand written letter and diary of the deceased to the enquiry officer, who upon seizing it is stated to have sent the same to FSL Jammu.

During the course of enquiry, the birth certificate of the deceased is stated to have been received by the enquiry officer revealing her date of birth as January 5, 2002 showing her to be a minor. After conducting the enquiry and taking into account the statement of mother of the deceased as also other witnesses, inquest proceedings are stated to have been converted into registration of an FIR under Sections 376/306 IPC at Police Station, Arnia.

During investigation in the said FIR, the statement of mother of the deceased under Section 164 CrPC is stated to have been got recorded and on the basis of statements, school certificate of deceased, accused was found to have committed offence under Sections 305/376 IPC read with 3/4 of the POCSO Act.

The accused is stated to have been arrested on April 18, 2021 while serving in Indian Army and is found to have been misleading the deceased on the pretext of marriage intentionally and manipulating her physical, mental relations without her consent having married somewhere else resulting into the committing of suicide by the deceased.

Before presentation of chargesheet on April 24, 2021, in the court of Special Judge (POCSO cases) Jammu, the petitioner/accused had filed a bail application on April 19, 2021 initially before the court of Principal District and Sessions Judge, Jammu, where after same had had been assigned for consideration to the trial court on April 26, 2021. The said bail application came to be rejected by the trial court on June 23, 2021.

It is stated that offences alleged to have been committed by the petitioner/accused are not made out and that the trial court rejected the bail application of the petitioner without appreciating true facts as also the legal position. The accused/petitioner is stated to be a married person and during his incarceration, his wife is stated to have given birth to a girl child on June 12, 2021.

The accused/petitioner is stated to have participated in the investigation, and is stated to have deep roots in the society being an Army personnel and his detention is likely to render him to lose his job and deprive him from looking after his family including old aged parents.

The counsel for the petitioner while reiterating the contentions raised and grounds urged in the application insist for grant of bail in favour of the accused/petitioner whereas, the counsel for the respondents per contra controvert and resist the application on the basis of objections filed and oppose the grant of bail to the accused/petitioner.

The Court noted, “The grounds urged by the accused/petitioner for bail is based on the contentions that there is no direct evidence connecting the petitioner with the commission of alleged offence and that the offence alleged to have been committed by the petitioner are not made out and that the whole case setup against the petitioner is based upon circumstantial evidence and that the statements of the mother of deceased including one related under Section 164 CrPC.

Admittedly a minor girl of the age of 16 years has died otherwise than under normal circumstances who allegedly has attributed reasons thereof to the petitioner herein while divulging the same to her mother during the last hours of her life on way to the hospital as also allegedly having written the same in her diary. There is no explanation offered by the petitioner in the petition in response to the said allegations. The chain of events revealed from the prosecution case do prima-facie at this stage connect the accused/petitioner with the commission of alleged offences.

The Court held that, here an excerpt from the judgement of the Apex court passed in “Neeru Yadav‟s” case supra, at the cost of risking repetition requires to be extracted hereunder having regard to the peculiar facts and circumstances of the case, with respect to the question of the liberty of an individual as against the norms of the society.

“The general contentions and grounds urged by the accused/ petitioner that he did not commit the alleged offence and that there is no direct evidence connecting him with the commission of alleged offence or that the case of prosecution is based on circumstantial evidence cannot alone be taken into account at this stage, either discarding or else overlooking the evidence collected by the prosecution during the investigation being part of the charge sheet against the accused /petitioner herein and same in view of the principles laid down by the Apex court in the judgements supra particularly regarding nature of accusation, severity of punishment in case of conviction and nature of supporting evidence as also reasonable apprehension of tampering with witness or apprehension of threat to complainant, have to be considered before grant of bail. The petitioner herein is not entitled to bail at this stage,” the Court observed while dismissing the bail application.

“In view of above the plea of applicability of Section 29 of the POCSO Act, urged by the counsel for the respondents to the case of the petitioner setup in the petition even at pre charge stage while considering the petition and denied by the counsel for the petitioner pales into insignificance and as such, need not be addressed to. It is, however, made clear that any observation made herein above shall not be construed to be expression of any opinion about the guilt or innocence of the accused/petitioner herein,” the order reads.

The Jammu & Kashmir and Ladakh High Court has recently said the request of an Investigating officer for extension of time cannot be a substitute for the report of the public prosecutor under provisions of Section 43D (2)(b) of the Unlawful Activities (Prevention) Act.

The Division Bench of Justice Dhiraj Singh Thakur and Justice Vinod Chatterji Koul passed this order while hearing a criminal appeal filed by Showkat Ahmad Sofi.

The appellants were arrested in connection with an FIR under Section 120-B RPC, 17, 18, 38, 39, and 40 of UAPA registered in police station Panthachowk, Srinagar. They preferred applications before the Trial Court for grant of bail. The Trial Court by the order impugned dismissed the applications. According to counsels for appellants, the trial court order is bad in law as the right to personal liberty is a cherished right of every citizen as provided under Article 21 of the Constitution.

Counsels for appellants submitted that appellants have been falsely implicated in the above-mentioned FIR as they have never been involved in any criminal activity. They also state that there are great contradictions in the police story as one fails to understand what role has been played by appellants in the alleged activities. The investigating agency is stated to have given contradictory statements with regard to the recovery of money from appellants and other co-accused.

Another submission of Counsels for appellants is that the police agency has to complete the investigation of the case within a period of 90 days and after its expiry, the accused has an indefeasible right of being released on bail. They also aver that there was no formal request from the public prosecutor to extend the period of detention. The Trial Court is said to have extended the detention of the accused/ appellants beyond the period of 90 days in terms of orders dated 28th February 2019, 7th March 2019, 27th March 2019, and 10th April 2019.

Counsels for appellants said that the abovementioned orders have been passed by the Trial Court on the applications of Investigating Officer (I.O.) and there had been no application, as was required in law, to be filed by Public Prosecutor under and in terms of provisions of Section 43D(2)(b) of ULA(P) Act and therefore, appellants are entitled to default bail.

Shafqat Nazir, Counsel for the appellant stated that there is no report of public prosecutor indicating the progress of the investigation and specific reasons for the detention of the accused beyond the period of ninety days.

It is also insisted by him that neither there is any report of public prosecutor nor any specific reason has been given by the Trial Court to extend the detention of the accused and therefore irrespective of the time having been extended by the trial Court, the appellant on expiry of ninety days is entitled to be released on bail on the ground of default. It is also contended that it was incumbent upon Trial Court to release appellants on bail in default of investigation being completed within the statutory period of ninety days.

The provisions of Section 43D(2)(b), thus, envisage that if it is not possible to complete the investigation within a period of ninety days, the Public Prosecutor is required to approach the Court with a report in which he should give the progress of the investigation and specific reasons for the detention of the accused beyond the said period of ninety days. And if the Court is satisfied with the report of the Public Prosecutor, it may extend the said period of ninety days up to one hundred and eighty days.

“From the above, it comes to fore that emphasis has been laid by the Supreme Court on the importance of scrutiny by a Public Prosecutor so as not to leave a detenu in the hands of I.O. alone, inasmuch as Public Prosecutor has an option to agree or disagree with the reasons given by I.O. for seeking extension of time. Besides, request of I.O. extension of time is not a substitute for the report of a public prosecutor under the provisions of Section 43D (2)(b) of ULA(P) Act,” the Court observed.

The Court held, “The Supreme Court in Union of India v. Nirala Yadav, (2014) 9 SCC 457, on the issue of grant of default bail has held that on expiry of the period of 90 or 60 days, as the case may be, an indefeasible right accrues in favor of accused of being released on bail on account of default by investigating agency in completion of investigation within the period prescribed and accused is entitled to be released on bail.

 In the case, the Trial Court in effect has not at all dealt with the right of appellants to grant default bail, even when the application(s) were filed by them. It is also not denied that the Charge Sheet/Challan has been filed beyond the period of ninety days and, therefore, in those circumstances, notwithstanding the subsequent filing of challan, appellants could not have been deprived of their right to the benefit of default bail.”

 For the reasons discussed, the Court allowed the appeals. The Court ordered that the impugned Order dated May 25, 2019, passed by the court of Special Judge designated under NIA Act, Srinagar, is set-aside. The appellants are held entitled to bail in the aforesaid FIR, which is pending trial in the court of Special Judge designated under NIA Act, Srinagar, subject to their furnishing personal bond in the amount of Rs 1,00,000 each with two sureties each of the like amount to the satisfaction of the learned Presiding Officer, subject to the following conditions:

 (a) That appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the court or to any other authority;

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 (b) That appellants shall not do anything directly or indirectly to influence the witnesses for the prosecution nor to tamper with the evidence to be adduced against them;

 (c) That appellants shall remain present before the Court on the dates fixed for hearing of the case, for any reason due to unavoidable circumstances for remaining absent he has to give intimation to the court and make a proper application for permission to be present through counsel;

 (d) That appellants shall surrender their passport, if any, if not already surrendered before the Trial Court within one week and if they are not holders of the same, that fact should be supported by an affidavit. In case they have already surrendered the passport that fact should be supported by an affidavit;

 (e) that appellant shall not leave the territorial jurisdiction of Trial Court without prior permission of the Court;

Supreme Court clarifies that blanket restriction cannot be placed on anticipatory bail in cases of illegal quarrying/mining, each case has to be considered on merits.

Delhi High Court holds that continued Reservation in ICU beds for COVID-19 patients is inhumane, Additional Solicitor General Sanjay Jain said that plan to reduce reservation by 20 percent is to be okayed by Executive.

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The Jammu and Kashmir High Court has said residents of Jammu and Kashmir, if having any grievance regarding violation of their human rights, may have to approach the National Human Rights Commission while deciding upon a plea against the investigation initiated by the Jammu and Kashmir Police into the alleged Shopian fake encounter of three labourers in July this year.  

The division bench of Chief Justice (Acting) Rajesh Bindal and Justice Puneet Gupta disposed of the PIL due to common prayers in another writ petition filed earlier in Jammu bench, and the same being a writ petition of private nature. A petition in public nature by a 3rd person regarding the same plea as filed earlier cannot and should not be entertained as it has no locus or cause of action to raise the dispute, the Court has said. 

The Court stated, “The claim made is with reference to a specific incident for which the petitioner has not been authorized by the aggrieved party to raise a dispute.”

Also, “It cannot be said to be in larger public interest as the guidelines for investigation in such type of cases have already been laid down by the Supreme Court in the cases referred to by the petitioner himself” i.e. People’s Union for Civil Liberties v. State of Maharashtra, Extra Judicial Execution Victims Families Association v. Union of India and People’s Union for Civil Liberties v. State of Maharastra.

The petitioner prayed to quash the investigation by Jammu and Kashmir police as being illegally related to Shopian Fake Encounter of the victims (namely Ibrar Ahmad (16), Mohammed Ibrar (21) and Imtiaz Ahmad (26)) and by the writ of mandamus to register an FIR and entrust the investigation to an SIT, further constitute a High Powered Committee to analyze the aspect of criminalizing custodial killings and fake encounters, constitute the state human rights  courts in terms of Jammu and Kashmir territory and compensation of Rs 1 crore each to the family of victims. The counsel for the petitioner also stated that the same is even admitted by the subsequent press release given by the armed forces.

As argued by the counsel for the respondents, T.M. Shamshi (ASGI), the plea is not in larger public interest and the parents of the deceased are already pursuing the remedies available to them, so far as the Constitution of the Human Rights Commission is concerned Section 21 of the Protection of Human Rights Act, 1993 does not provide for constitution of a Human Right Commission in Union Territory as the same talks about constitution of a Commission in the States. The persons aggrieved can always approach the National Human Rights Commission.

The Court concluded in the aforesaid respect that, as far as constitution of the State Human Rights Commission in Union Territory of J&K is concerned, the court agrees with the respondents. After enactment of the Reorganization Act, the Jammu and Kashmir ceases to be a State as now it is a Union Territory.

The Court also appended that as far as human rights courts in Union Territory of J&K is concerned, a notification issued by the Department of Law, Justice and Parliamentary Affairs, Government of J&K; the Court of the learned Principal Sessions Judge of each district has been designated as human rights courts. Hence, the grievance of the petitioner to that extent does not survive.

The Court added, “Prior to the enactment of the Reorganization Act, the Jammu & Kashmir Protection of Human Rights Act, 1997 was applicable in J&K. In exercise of powers conferred there under, the J&K State Human Rights Commission had also been constituted, which was wound up after the enactment of the Reorganization Act. The residents of J&K, if having any grievance regarding violation of their human rights, may have to approach the National Human Rights Commission.”

While disposing of the petition, the court concluded that the matter regarding section 21(7), Protection of Human Rights Act, 1993 needs to be examined by the Government so that the proper remedies are available with the aggrieved persons who are having any grievance regarding violating of their human rights.

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The Supreme Court Collegium has recommended the name of Justice Hima Kohli, Judge, Delhi High Court as Chief Justice of Telangana High Court and Justice S. Muralidhar, Judge, Punjab and Haryana High Court as Chief Justice of the Orissa High Court along with other three Judges as Chief Justices of Madras High Court, Gauhati High Court and Jammu and Kashmir High Court respectively.

The other three judges are Justice Sanjib Banerjee, presently Judge of Calcutta High Court recommended as Chief Justice of Madras High Court, Justice Panjaj Mittal, Judge of Allahabad High Court as Chief Justice of Jammu and Kashmir High Court and Justice Sudhanshu Dhulia, Judge of Uttarakhand High Court as Chief Justice of Gauhati High Court.

Apart from this, the Collegium recommended the transfer of other nine Chief Justices and Judges of High Courts. The Collegium has recommended transfer of Chief Justice A.K. Goswami, Sikkim High Court as the Chief Justice of Andhra Pradesh High Court. The present Chief Justice J.K. Maheshwari of Andhra Pradesh High Court has been recommended for transfer to Sikkim High Court.

The Supreme Court Collegiums is headed by Chief Justice S. A. Bobde and presided by other top-four judges of the Apex Court. The four judges are Justice N. V. Ramana, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit, and Justice Ajay Manikrao Khanwilkar.

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New Delhi: Justice Gita Mittal, Chief Justice of the High Court of Jammu and Kashmir, yesterday e-inaugurated three different facilities of the Ahata-e-Waqar, a daycare and recreation centre for senior citizens, a vulnerable witnesses deposition complex and a crèche facility at district court complex, Samba.

Also in the e-inauguration with Justice Mittal, who is also Patron-in-Chief, J&K State Legal Services Authority, were Justice Rajesh Bindal, Executive Chairman Jammu and Kashmir State Legal Services Authority, Justice Tashi Rabstan, Justice Sanjeev Kumar, Justice Sindhu Sharma, Administrative Judge for District Samba, Justice Rajnesh Oswal, Justice V.C. Koul, Justice Puneet Gupta and Justice Javed Iqbal Wani.

Mohammad Akram Chowdhary, Principal District & Sessions Judge, and Chairman District Legal Services Authority, Samba delivered the welcome address and explained the purpose and objective underlying the creation of these facilities at Court Complex, Samba.

He explained that the Ahata-e-Waqar shall be a place of pride for elderly citizens to spend their quality day time at the centre in the company of their friends and which shall also serve as a place for celebrations of births and marriages, anniversaries and other events and this place shall be used by the elderly citizens, helping them age with dignity. He said the concept of Vulnerable Witness Deposition Complex as an initiative to improve the response of justice dispensation system and ensuring sensitivity towards vulnerable witnesses to minimize their repeated victimization.

In her address, Justice Mittal highlighted the importance and necessity of creation of such facilities in all districts for their maximum utilization by the persons in need of such facilities. She referred to the already existing facilities in the districts of the Union Territory and the beneficial purpose being served by them. She underscored the necessity of Ahata-e Waqar facility as being a place of pride for the senior citizens and a place they can call their own where they can share their life experiences with each other and spend quality time.

She referred the senior citizens as being treasures of experience. The importance of maintaining active help desks of legal services and police assistance was also stressed upon where the senior citizens can seek legal advice. She referred to the Vulnerable Witnesses Deposition Complex as being a very important concept of dispensation of justice where the vulnerable victims can depose in a safe environment without any pressure or fear. She highlighted the importance of the crèche facility as being the need of the hour in the present times when both parent are working and require a safe and suitable place for their children simultaneous to their mental and physical health. She lauded the efforts of District Judiciary Samba in creating and developing these facilities.

Justice Rajesh Bindal, Judge High Court of Jammu and Kashmir, Executive Chairman Jammu and Kashmir State Legal Services Authority, highlighted the importance of the facilities and impressed upon the need for creating such facilities and also maintaining them in a qualitative manner by a strong and healthy mechanism.

In her inaugural address, Justice Sindhu Sharma, discussed the concept of the three facilities in detail and underscored the importance of the facilities for the use of Senior Citizens, working parents and for the convenience of Vulnerable Witnesses.

The Online audience was given links of the three newly inaugurated facilities by keeping them on a virtual tour of Ahata-e-Waqar, Vulnerable Victim Deposition Complex and the Creche, separately.

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The Creche has been established for the facility of children of working parents including Advocates, Clerks, Officers and Court staff and is available for children between the age group of 06 months up to 06 yrs. It provides reading material, play material and other activities suitable for the holistic development of children of working parents.

Judicial Officers, Senior Citizens, Advocates, Officers from the Administration, Para Legal Volunteers and Retainer Lawyers of District Legal Services Authorities participated in this event. They all have attended this event online.

-India Legal Bureau

New Delhi: The Jammu & Kashmir High Court on Monday ruled that the Magistrate is precluded from  ordering an investigation under Section 156(3) of the Code, once a cognizance of an offence is taken by him. 

Justice Ali Mohammad Magrey also directed the Director, Judicial Academy to arrange the training session on the subject for all the Magistrates in the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.

The petitioner, Sami-Ullah Naqashbandi, while performing his duties as Naib Tehsildar, Executive Magistrate, Khanyar, came to know about the filing of the complaint by the respondent against him as well as other accused persons.

The complaint was assigned to the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff/ JMIC, Srinagar), by the CJM, Srinagar.

The Judicial Magistrate 1st Class on receipt of this report from SSP, Srinagar, and on consideration of the matter and while recording that the SSP, had not taken any action in the matter, directed the SSP, Srinagar, to take action under the provisions of Section 156(3), of Criminal Procedure Code.

Therefore, a plea was filed under Section 482 of the Code of Criminal Procedure, seeking of the quashing of order dated 25.06.2020 read with the order dated 11.05.2020 passed by the Judicial Magistrate 1st Class.

The counsel for the petitioner stated that the Magistrate’s order, directing the investigation under Section 156(3) is permissible at pre-cognizance stage only, while enquiry under Section 202 is at post cognizance stage. Therefore, he called the orders issued by the Judicial Magistrate 1st Class to be against the procedure should be quashed.

The counsel for the complainant contradicted and said that the Court had the power to ensure impartial and honest investigation once the Police was seemingly not fair in investigating the complaint.

The Court observed:

“The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, a direction under the said provision [S. 156 (3)] is issued.”

The Court examined the trial court records and stated that the learned Magistrate had in a very mechanical manner and as a result of non-application of mind, issued directions to the Senior Superintendent of Police, Srinagar, for investigation under Section 156(3) of the Code.

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In light of above facts the Court  allowed that Petition and order dated 25.06.2020, passed by the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar) was set aside. The Magistrate was ordered to proceed from the stage on receipt of the report in terms of Chapter XV of the Code, viz Section 202(1) onwards.

Read the Judgment here;

India Legal Bureau