SJA eNEWSLETTER Official Newsletter of

Jammu & Kashmir State Judicial Academy

Volume I Monthly 2018

Chief Patron Hon’ble Ms. Justice

Gita Mittal Chief Justice

Governing Committee

Hon’ble Shri Justice Rajesh Bindal

Chairman

Hon’ble Shri Justice Dhiraj Singh Thakur

and

Hon’ble Shri Justice

Rashid Ali Dar

Editor Rajeev Gupta

Director

CONTENTS

Message of Hon’ble Chief Justice…….1 Message of Hon’ble Chairman ……….2 Governing Body………………………3 From Editor’s Desk..………………….4 Write Ups…………………………..5-6 Activities of Academy…………….7-18 Legal Jottings……………..……. 18-20 Coming Events…………………….. 20

I am happy to note that the J&K Judicial Academy is bringing out the first issue of E-News Letter with the idea of supplementing the training being imparted to the Judicial Officers in the Academy. It surely is a pace with the current times when we are moving from e-courts towards paperless courts. The E-News Letter which contains important judgments of the Supreme Court and the Jammu and Kashmir High Court and lists the latest developments of law and legislation is set to be an effective means not only for the young entrants in the Academy but will be extremely useful even for those already serving the judiciary to help them keep abreast with the latest in law. To my mind, the most effective training is that which involves active participation of the trainees. The E-News Letter can serve as a forum where the trainee officers can share ideas and suggestions which can prove very fruitful with the right kind of guidance. It would also serve as an update on the activities at Jammu and Kashmir State Judicial Academy – those undertaken and those planned in the coming months. I am sure the Judicial Officers would benefit immensely from the monthly issue of the E-News Letter, I congratulate the Chairman and Members of the Governing Committee of the State Judicial Academy for taking this laudable initiative. I also appreciate the entire administrative and academic faculty of J&K State Judicial Academy for their efforts in bringing out this News Let-ter. I extend my best wishes for the success of the E-News Letter. ( Gita Mittal ) Chief Justice

MESSAGE

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In its continuous endeavour to apprise and keep the

judicial fraternity updated with latest developments and activities

in the Justice Delivery System, the J&K State Judicial Academy is

starting monthly e-news letter which will be e-mailed to all the

Judicial Officers. The object is to give gist of important

judgements of Hon’ble the Supreme Court and this court and any

amendments or notifications issued, which have relevance with

the issues considered by the officers. Brief note about the

activities undertaken by the Academy during the last month and

proposed to be taken in the coming month shall also be provided.

Articles from various Judicial Officers are also being invited and

will be published in the newsletter.

I hope that the contents of the newsletter will keep the

officers updated in law which will help them in discharge of their

judicial functions.

( Rajesh Bindal ) Judge (Chairman, SJA)

MESSAGE

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Hon’ble Ms. Justice Gita Mittal Chief Justice, High Court of Jammu & Kashmir

(Chief Patron, State Judicial Academy)

Hon’ble Mr. Justice Hon’ble Mr. Justice Hon’ble Mr. Justice Dhiraj Singh Thakur Rajesh Bindal Rashid Ali Dar Member Chairman Member State Judicial Academy State Judicial Academy State Judicial Academy

Rajeev Gupta District & Sessions Judge

(Director, State Judicial Academy)

GOVERNING BODY JAMMU & KASHMIR STATE JUDICIAL ACADEMY

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From Editor’s Desk Constitution of Jammu and Kashmir fortunately contains profound statement on standards of Judicial Dispensation. It would be profitable to quote the provision concerned.

“18. Separation of judiciary from executive:-The state shall take steps to separate the judiciary from the executive in the public services and shall seek to secure a judicial system which is humane, cheap, certain, objective and impartial whereby justice shall be done and shall be seen to be done and shall further strive to ensure efficiency, impartiality and incor-ruptibility of its various organs of justice, administration and public utility.”

Constitution strives to make endeavour for Humane, Cheap, Certain, Objective and Impar-tial Judicial System. These words of immense significance encompass in themselves every aspect of judicial dispensation, which signify the expectations of the people outside the judicial system. Efforts have always been made to attain the optimum level of judicial dispensation but still much more needs to be done.

There has been much work done by the Law Commission of India to give a positive direction and impetus to the efforts to achieve the above stated goals, which though not contained specifically in any other document of law, except as above, have been the benchmark. Reports after reports indicate the areas to focus. All the organs of the State have been making constant efforts to work on the areas indicated but still the judicial system is striving hard to live upto the expectations of common people. It is not that expectations are unimaginable but the judicial system is under tremendous stress. Delay in dispensation of justice delivery seems to be overshadowing the amount of work of unimaginable proportions being done by the Indian Judicial System.

Modernisation of judicial system is catching up fast to improve the output of judicial processes. E -Courts project has given fruitful results. Much has been done, and much is being done. It is expected that in near future litigants and all the stakeholders in the judicial system shall take pleasure in seamless and paperless court processes.

Judicial Academies under the steward leadership of National Judicial Academy are also making constant efforts to infuse pace in updation of knowledge and management skills. Court and Docket Management are now not the unknown words to the judges serving the judicial system. New areas are being constantly worked to achieve the objectives set out in above statement. J&K State Judicial Academy being one of the earliest set up Academies, is also making efforts to achieve the optimum results in potential realization of the stakeholders in the judicial system, especially of the judicial officers, in the State. Also, the collaborative efforts of all the Judicial Officers shall make a positive change. Under the able leadership of Patron-in-Chief and the Governing Committee of the State Judicial Academy, the Academy is all set to scale new heights, and to travel the new horizons.

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For organizing continuing judicial education, the principles and standards promulgated by the National Association of State Judicial Educators, USA are of great value. They suggest instruction in five major areas : • Legal Ability : Updates on law, court rules and court procedures, in depth analysis of

complex legal issues; examination of judicial decision-making practices and philosophies; and effective opinion writing though identification, analysis and clarity in expressing legal issues, reasoning and conclusions.

• Comportment and Demeanour : Judicial code of conduct; fostering fairness through the recognition and elimination of bias or prejudices; cultural awareness; decisiveness; and judicial temperament.

• Judicial Management Skills : Case management; effective trial and jury management; settlement skills; personnel management; skills to cope with the growth of litigation and the increasing complexity of legal issues and proceedings; and when appropriate, court system planning administration.

• Contemporary and Interdisciplinary Issues : Updates on scientific and behavioural sciences relevant to any judicial practice; knowledge of contemporary social issues; and the law and humanities.

• Personal Development : Revitalization and re-dedication to public service; awareness of the need to maintain high levels of personal well being ; and stress management

There are, however, a number of new initiatives setting different trends in judicial education. One such trend is to organize judicial education on important subject matter thrown up by major changes in legislations, land mark juridical decisions or social upheavals. Family violence, drug problem, child abuse etc. provide such subject-matter trends influencing judicial education programmes. The increased awareness of human rights and social demand for fair deal from courts irrespective of gender, race etc. create need for another organizing principle for judicial education. The programmes thus evolved are designed to promote a change in judge behaviour in interaction with parties, victims, witnesses and attorneys. -Taken from Study material published by NJA

Continuing Judicial Education

Judicial Academy building at Jammu Judicial Academy building at Srinagar

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Discourse on Constitutional Morality by Hon’ble Supreme Court of India

One of the seminal facets of the concept of constitutional morality is implicit in the eminence

of identity as has been succinctly stated in “National Legal Services Authority v. Union of India and others” popularly known as NALSA case wherein the court was dwelling upon the status of identity of transgender. Radhakrishan, J after referring to catena of judgements and certain International covenants opened that gender identity is one of the most fundamental aspects of life which refers to a persons intrinsic sense of being male, female or transgender or trans-sexual person. Sikri, J in his concerning opinion dwelt upon the rights of trans-genders laid down that gender identification is an essential component which is required for enjoying civil rights by the community. The aforesaid judgement, as is manifest, lays focus on “inalienable gender identity” and correctly connects with human rights and constitutionally guaranteed right to life and liberty with dignity.

It lays stress on the judicial recognition of such rights as an inextricable component of Article 21 of constitution and decries any discrimination as that would offend Article 14, the fon juris of constitution .

Further, when we talk about identity from the constitutional spectrum, it cannot be pigeon holed singularly to ones orientation that may be associated with his/ her birth and feelings he/she develops when he/she grows up .

At the core of the concept of identity lies self determination, realization of ones own abilities visualizing the opportunities and rejection of external views with clear conscience that is in a accord in constitutional norms and values or principles that are, to put in a capsule constitutionally permissible. As long as it is lawful , one is entitled to determine and follow his/her pattern of life. And that is where the distinction between constitutional morality and social morality on ethicality assumes a distinguished podium, a different objective.

Hon’ble Supreme court in case law, “Joseph Shine v. U.O.I” has referred to John Stuart Mill, “The legal subordination of one sex to another is wrong in itself and now of one of the chief hindrances to human improvement and that it ought to be replaced by a system of perfect equality admitting no power and privilege on one side , non disability in the other”, and observed that a woman cannot be asked to think as a man or a how the society desires . such a thought is abominable, for it slaughter her core identity and, it is time to say that a husband is not the master. Equality is the governing parameter.

The Hon’ble Apex Court while considering the question of doing away with death penalty in the case of Chhannu Lal Verma v. State of Chattisgarh, observed :

“Having regard also to the said report of the Law Commission that the Constitutional regulation of Capital Punishment attempted in Bachan Singh v. State of Punjab’, (1980) 2 SCC 684, has failed to present death sentences from being “arbitrarily and freakishly imposed” and that capital punishment has failed to achieve any Constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice.” However, Justice Deepak Gupta & Hemant Gupta while concurring with the judgment of Justice

Joseph with respect to the commutation of death penalty of the appellant to life imprisonment, dissented with regard to the opinion expressed by Joseph, J in relation to doing away with death penalty altogether.

“We have had the privilege of going through the erudite judgment delivered by our learned brother Justice Kurian Joseph. We are in full agreement with all that is stated in the judgment except the following observations in para 23 of the judgment of Joseph J. Which speak about reconsidering death penalty in the statute book.

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Two Days Workshop on Juvenile Justice System

for Juvenile Justice Boards (Principal Magistrates and Social Members) in collaboration with Save

the Children (NGO) held on 30th June and 1st July, 2019 at Srinagar

Hon’ble Mr Justice Alok Aradhe while inaugurating the programme complimented the Judicial Academy for organising the programme for effective implementation of Juvenile Justice System in the State. He said that we have plethora of laws, schemes and programmes of children. The real challenge lies in implementing the provisions of these laws, schemes and programmes. The Judiciary along with the Police and various Government Departments are involved in the implementation of different laws, schemes and programmes for children. The need of the hour for all of us is to ensure that laws, schemes and programmes for protection and promotion of Children’s Rights are implemented at the field level in the right perspective.

Hon’ble Mr Justice Ali Mohammad Magrey, Judge, High Court of J&K in his keynote address said that the international community adopted the United Nations Convention on the

Hon’ble Dignitaries on the dais

Participating Judicial Officers and Social Members

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Rights of the Child in 1989. There are several, rather numerous other Articles in the Convention which recognise the general human rights of children and cast duty and obligation on the States to make laws and formulate policies for the welfare and wellbeing of children. Since the children are prone to come into conflict with the laws as a result of being accused or suspected of committing a crime, there is always likelihood that their fundamental rights may be violated. To meet such an eventuality, the States under the Convention have recognised the right of every such child to be treated in a manner which is consistent with the promotion of the child’s sense of dignity and worth. One of the foundational requirements of States under the Convention is the formulation and establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law. This requires juvenile justice system to ensure that children in conflict with the law are treated in a manner substantially different than adults at all stages of the proceedings.

Principal Magistrates and Social Members

Hon’ble Mr Justice Hasnain Masooi, Former Judge, High Court of J&K in his special address highlighted the steps already taken by the government regarding the implementation of Juvenile Justice Act and overall progress of Integrated Child Protection Scheme (ICPS).

Mr. V.K. Singh, Special Director General of Police who is also the Designated Nodal Officer under Act highlighted the overall steps taken by Police for effective implementation of the Act.

Madam Bidisha Pillai, CEO Save the Children in her address highlighted the overall plight of children in need of care & protection and the children in conflict with law with particular reference to the State of J&K. She also shared her recent experience of meeting the juveniles and stressed upon the need of implementing the Act.

Resource Persons Ms. Bharti Ali, Ms. Maharukh Adenwala, Mr. Abdul Rashid Malik, Director, J&K State Judicial Academy and Mr. Sharif Bhat, State Programme Manager, Save the Children took over the technical sessions and deliberated upon Overview of Child Protection, Juvenile Justice and ICPS (Integrated Child Protection Scheme) in J&K, Juvenile Justice Act Philosophy, Principles, Mandates, Juvenile Justice Boards (Composition, functioning-Difference between Juvenile and Adult Courts) and Juvenile Justice Boards (communication, bail, case processing, etc). The technical sessions were followed by open house discussion in which the participants shared their experience and the Resource Persons responded to the questions and issues raised by the participants.

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Second State Roundtable Conference on Implementation of Jammu & Kashmir Juvenile Justice

(Care and Protection of Children) Act, 2013 at Sher-e-Kashmir International Convention Centre (SKICC)

Srinagar on 25th of August, 2018

Justice Madan B. Lokur, Judge, Supreme Court of India inaugurated 1-day Second State Roundtable Conference on Implementation of Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 at Sher-e-Kashmir International Convention Centre (SKICC) on 25th of August, 2018.

The Conference was jointly organized by Juvenile Justice Committee of the Supreme Court of India and Juvenile Justice Committee of J&K High Court and supported by UNICEF.

Release of Report on implementation of Juvenile Justice System in the State of Jammu and Kashmir

Speaking on the occasion Hon’ble Mr. Justice Lokur stressed on the need to implement J&K

Juvenile Justice Act, 2013 in letter and spirit and called upon all the stakeholders to work in tandem to set up Juvenile Justice Boards, Child Welfare Committees, Advisory Boards and Observation Homes which are a prerequisite for the effective implementation of the Act. His Lordship said that the children are the future of society and it is the duty of the society to take care of juveniles. He said the children who are in conflict with the law need to be counseled, rehabilitated and reintegrated with the society.

Justice Lokur said the J&K Juvenile Justice (Care and Protection of Children) Act 2013 is a robust effective and responsive legislative framework for children who are in need of care and protection as well as children in conflict with the law. He said the approach of the executive and the judicial system should be aimed at addressing the vulnerabilities of the children and ensuring their rehabilitation adding that the idea behind rehabilitation is that people are not born criminals, thus should be given a chance to be restored and reintegrated with society. His Lordship said that the Act is still in infancy in the State of J&K and State has enough lessons to learn from other states who have already implemented similar laws and learn from the shortcomings from them to rectify their own. His Lordship said that if the required infrastructure expected by the Act and Rules is available, there is no doubt that the statuary functionaries will be able to put in place appropriate remedial measures.

His Lordship further stated that by placing oriented and interested judicial officers and professional social workers in place in the Juvenile Justice Boards, substantial progress can be

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In her Key Note Address, Hon’ble Ms. Justice Gita Mittal, Chief Justice, High Court of Jammu & Kashmir expressed her feeling of a sense of encouragement at hearing the efforts made by the State towards assistance for the most needy persons. She recounted that she has known Hon’ble Justice Madan B. Lokur since his time as a judge of the Delhi High Court and recalled the appreciable efforts he had made towards ensuring the establishment of the institutions in the juvenile justice system in Delhi at the time. She commended his tireless work towards the welfare of children in difficult circumstances, both on the judicial and administrative side. She also expressed her appreciation for Hon’ble Justice Deepak Gupta and his passion for improving the life of children, both children in conflict with the law as well as children in need of care and protection ,and stated that this is manifested in his work on and off the bench. She also recognised the efforts of her companion judges of the State of Jammu and Kashmir, and that of UNICEF, the State Judicial Academy, the juvenile justice Secretariat of the Jammu and Kashmir HCC-JJ and officers of the Registry towards this conference. She also lauded the effort made in bringing out the report on implementation of the juvenile justice system in the State.

Hon’ble Ms. Chief Justice Gita Mittal addressing the Conference Hon’ble Ms. Justice Mittal then stated that the idea that knowledge on adolescence is rele-

vant to the regulation of youth crime has largely not informed law reform in the past generation. Lately however, this perspective has received attention with several international conventions and national legislations specifically aimed at the wellbeing and development of such children. She emphasized the responsibility of society at large, in shaping the mindsets and future of children. She further stated that this perspective is very relevant to be discussed in this consultation on the implementation of the juvenile justice system.

Her Lordship touched upon the basis of the working of the juvenile justice system by elaborating on the four stages of evolution of the basis upon which the differential treatment of children and segregation of child offenders is founded. She explained that Stage 1 constituted mainly of segregation of child offenders to prevent them from mixing with hardened adult criminals, while Stage 2 involved releasing them on parole. Stage 3 involved the movement towards having juvenile courts with laws, procedures, systems, etc., distinct from the adult system, and Stage 4 involved the application of international instruments, particularly the UNCRC.

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She stated that the declared aim of the juvenile justice system as enshrined in international instruments is the child’s rehabilitation and reintegration, and these instruments have greatly influenced and shaped the juvenile justice regime in India. India having ratified the UNCRC, has an obligation to ensure its implementation. Juvenile justice is only one of the responsibilities of the State towards care and welfare of children. She acknowledged that the special status of children is recognised in the National Policy for Children; in the Jammu & Kashmir Constitution; as well as other statutes regulating child labour, right to education, etc. She emphasised that the Juvenile Justice systems must always be in best interest of the child and for the child’s welfare.

Hon’ble Justice Mittal then flagged what she viewed as the biggest challenges – that of procedural gaps in apprehension, investigation, detention, sentencing and in the lack of adequate homes. She stated that programs for sensitizing officers across the board is therefore necessary, not only on the JJ Act but also aspects relating to apprehension, investiga-tion and interviews, detention, dealing with child witness, reforms, and rehabilitation and reintegration. She further stated that children too have to be sensitised about their own culpability and illustrated the efforts of the Delhi Legal Services Authority (DLSA) in educating children on laws relating to them, citing an example of the simple act of forwarding an SMS potentially being an offence. She also briefly touched upon the need for scientific study on prevention, on the need to look into the booming advancement made by science and technology its impact on children, and on the impact of media trials.

Hon’ble Justice Mittal stressed that the role of the courts is to build the faith of victims in the system through effective implementation of the law. She gave a commitment on behalf of the judiciary of Jammu & Kashmir that they would work ceaselessly towards this goal. She further urged all those who were working in the field of child rights to make use of inter-national instruments and the new juvenile justice legislation in every case and in every stage of working with children, to achieve its spirit, intention and object. Hon’ble Justice Mittal proceeded to state that this conference provides an opportunity for stakeholders to come together and gain a sharper understanding of roles and functions in order to achieve the legislative goals. She also briefly touched upon the need to employ technology effectively in order to implement the Act and flagged it as an agenda for the way forward. Illustrating this point, she shared a practice from Delhi where police stations are linked to trial courts and to the DLSA, through which a complaint once filed, is communicated instantaneously to the DLSA, enabling them to provide legal services in a timely manner and inform the next steps, such as disbursal of compensation within 24 hours, etc.

She commended the efforts initiated to move towards child friendly courts and stated that dialogue with children in difficult circumstances is the first step towards bringing about attitudinal changes. More investment in terms of human resources and individualised attention is required to ensure rehabilitation and reintegration of children. Hon’ble Justice Mittal expressed the need to share best practices, not only at the national level but at the international level. In conclusion she acknowledged and appreciated the efforts and commitment of the Jammu and Kashmir government in working towards increased justice dispensation.

In his welcome address Justice Ali Mohammad Magrey said though the Juvenile Justice Act is intact in the state, still we are struggling to realize the dream of setting up of child friendly institutions. He said the state has to contemplate the legal response with respect to two categories of children including those who are in conflict with law and those in need of care and protection. He said to achieve the objectives of the Act there is dire need for creation of institutions including Juvenile Justice Boards, Childcare Institutions, Special Juvenile Justice Police Units etc.

Justice Magrey pinned hope upon the two-day conference that it will sensitize all the stakeholders, particularly the state departments and hoped that a strong will power will emerge for creation of physical framework in support of the juvenile justice system in the state.

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especially their protection from various forms of abuse, exploitation, neglect, discrimination and any form of violence. He said UNICEF has made a modest beginning with the State government, judiciary, academia, civil society and other stakeholders. He said efforts are underway to ensure a comprehensive and coordinated system is established in the state in order to ensure children have access to justice, services and support as guaranteed under constitution of J&K and various other special laws applicable to the state.

Hon’ble Judges and Judicial Officers during Technical Session

Director General of J&K Police Mr. SP Vaid while addressing the technical session said J&K is in dire need of an effective Juvenile Justice System adding that police officers who deal with juveniles are being trained to have soft skills while dealing with them.

He said steps are being taken to implement the Act and set up Special Juvenile Police units in 199 Police stations with District Superintendent of Police in-charge, and one inspector in each district to head the unit. He said in each police station, they have appointed a Child Welfare Officer who will contribute towards proper handling of Juvenile related cases.

He, however, said that if the Act has to be implemented in the right spirit, there should be a devoted team of officers as the Police officers are overburdened with other responsibilities.

Commissioner for Persons with Disability, Mr. Mohammad Iqbal Lone also addressed the gathering and presented a detailed presentation of the steps being taken by the government for the implementation of the Act.

During the Technical Sessions, experts presented detailed presentations on different aspects of the Juvenile Justice Act and gave their suggestions with regard to the effective implementation of the Act.

Other who were present in the conference include Judges of the High Court, Justice R. Sudhakar, Justice Mohammad Yaqoob Mir, Justice Alok Aradhe, Justice D.S. Thakur, Justice Tashi Rabistan, Justice Janak Raj Kotwal, Justice B.L. Walia, Justice Sanjeev Kumar, Justice M. K. Hanjura and Justice Sanjay Kumar Gupta, Judges of the subordinate courts, Secretary Law, Special DGP VK Singh, Academicians from various universities and law schools, Police Officers, Social workers and volunteers.

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Two days Orientation Training Programme for all JJBs, CWCs, Legal-cum-Probation Officers and Incharge SJPUs of Kashmir Division

held on 13th & 14th October, 2018 at SKICC, Srinagar

Chief Justice of J&K High Court, Justice Gita Mittal today called for serious efforts to strengthen the Juvenile Justice (JJ) mechanism in Jammu and Kashmir to ensure protection of children with law conflicts. She strongly advocated for implementation of J&K Juvenile Justice (Care & Protection of the Children) Act, 2013 and Rules 2014 in letter and spirit, which provide a robust mechanism for protection and safety of juveniles.

Speaking at the inaugural session of the 2-day Orientation Training Programme on Juvenile Justice System organized by the Juvenile Justice Committee of J&K High Court in collaboration with the UNICEF at SKICC Srinagar, the Chief Justice observed that children are the major human resource of development and key agents for collective social change and they cannot be deprived of hope and dignity. Conscious and continues efforts must be made by all stakeholders of the society to ensure wholesome development of these children so that they also lead a dignified life and contribute for the development of the society and nation, said Justice Mittal.

Maintaining that judiciary has to play a vital role in sensitizing all the stakeholders by

bringing them together and in identifying workable solutions in order to trigger changes at the ground level, Justice Mittal said the orientation and training of judicial officers and professional social workers coupled with required resources will help us to achieve the objective of proper rehabilitation of children in conflict with law. She urged the participants to take advantage of the opportunity and make practical use of their experience gained from the training programme.

She extended her gratitude to the Members of Juvenile Justice Committee of J&K High Court, Judges of High Court, Resource Persons, including Justice Mukta Gupta, Judge Delhi High Court for gracing the occasion and enlightening the participants on the issues related to the Juvenile Justice system.

Principal Secretary to Chief Justice, Jawad Ahmed, Special Secretary, DSLSA, Geetanjali Goel, Child Protection Specialist, UNICEF, Hilal Bhat, Mission Director, ICPS, G A Sofi, Bharti, Dr Rajesh Kumar, Resource Persons, judicial officers of subordinate courts dealing with the Juvenile Justice, Lawyers, Juvenile Police Units, activists of various NGOs, social organizations and several other stakeholders participated in the conference.

The main objective of the training programme was to deliberate and highlight the issues related to the implementation of JJ Act and to review the progress achieved on various decisions taken in the two Roundtable Conference on Juveniles held last year and this year in Srinagar.

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The experts deliberated in detail about the issues related to the juveniles and stressed that approach of the executive officials and the judicial system must be aimed at addressing the vulnerabilities of the children and ensuring their rehabilitation. They observed that idea behind rehabilitation is that people are not criminals by birth and have every right to get a chance to mend their character and reintegrated with society to lead a dignified life. All this can be possible with the collective efforts of all stakeholders of the society, said the experts.

Chairman J&K High Court Juvenile Justice Committee, Justice Ali Mohammad Magrey stressed the need for the community participation for the rehabilitation of juveniles. He said children are the greatest resource of the nation and all stakeholders have to join hands to make efforts to protect them from all evils by using all means under and outside the legal framework. The orientation programmes provide opportunities to the people associated with this noble cause to introspect and re-dedicate to save the younger generation from various forms of abuses, said Justice Magrey.

Outlining the success of the two Roundtable Conferences on the implementation of Juvenile Justice System in the State, Justice Magrey said the State of Jammu and Kashmir has taken various steps to strengthen the juvenile justice mechanism. The measures included constitution of Juvenile Justice Boards and Child Welfare Committees in all the 22 districts of the State, created eight posts of Principal Magistrates and the process of creating remaining 14 Principal Magistrates is at the final stage. The Juvenile Justice Committee of High Court of J&K is closely monitoring the progress of implementation of the JJ Act to ensure better set up for the juveniles.

He said the Committee is constantly maintaining high vigil on the implementation of the Act and the Rules for which regular meetings of all the stakeholders from time to time are being held to review the progress. Inspections of the Observation Homes and Children’s Homes at Jammu and Srinagar are being done to improve the conditions prevailing in these Homes like food, clothing, recreation, educating, health and psychology of these children.

Justice Dhiraj Singh Thakur stressed the need for larger participation of community, NGOs, social organizations for the safety of the juveniles. He emphasized for a cautious approach by the agencies while dealing with the juveniles and every effort must be made to mould the mindset of the children to bring them on the right track. He also stressed for a close vigil by the society to prevent the children from various abuses and securing the future of the children.

Justice Thakur said Government’s role is imminent in improving facilities and rehabilita-tion of juveniles by way of providing infrastructure and other facilities. He expressed satisfaction on the role of the stakeholders, especially the NGOs and some Government agencies. He hoped that the training programme will go a long way in motivating the participants to rejuvenate their efforts to work in missionary spirit for the welfare of the ignored section of the society.

Justice Mukta Gupta, Judge Delhi High Court deliberated on the subject in detail and laid stress on tangible steps to further improving the juvenile system, children in conflict with law and the children in need of care and protection. She laid stress on effective mechanism to deal with the cases of juvenile with all sympathy and care so that they can be brought to the right path to lead the dignified life. She said regular counselling seminars should be held at the ground level to aware and motivate the children against various forms of abuse and anti-social activities. She said entire society has responsibility to save the younger generation from the destruction due to drugs, child abuse and other anti-social activities. The Courts have special responsibility to deal with such cases with extra cautious approach to ensure proper justice and rehabilitation of such children.

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One day Training Programme for Judicial Officers & Doctors on Handling Survivors/Accused of Sexual Violence cases at Hospitals

held on 20th October, 2018 at Judicial Academy, Mominabad, Srinagar

Highlighting the significance of a doctor acting as the first responder to the victim of domestic or sexual violence, the Chief Justice of J&K High Court, Justice Gita Mittal said the dying declaration of a victim supported by the testimony of the doctor, could send the people in-volved in the crime to gallows.

The Chief Justice was speaking at a day-long training programme for presiding officers and doctors on how to handle survivors of sexual violence at hospitals. The training held under the banner of High Court of J&K was organized in collaboration with the Health Department J&K State Judicial Academy.

Justice Alok Aradhe, Chairman of State Judicial Academy, Abdul Rashid Malik, Director State Judicial Academy, Yash Pal Bourney, Member Secretary, State Legal Service Authority, Dr Farida Noor, Professor and Head, Forensic Medicine and Toxicology, and doctors from various State Government hospitals were present in the meeting.

Addressing the galaxy of doctors and legal experts, the Chief Justice said the purpose of

holding this programme is to explain the significant role a doctor plays in helping a victim to get justice at times.

She said, “in a case of domestic violence, a doctor while trying to ascertain the reasons behind the patient’s condition, usually records the patient’s history. “If the victim dies, the same statement recorded by the doctor before the death of the patient may be treated by the Judge as the “dying declaration” of the victim. The dying declaration, supported by the testimony of the doctor confirming that the victim actually made that statement, can be relied upon to convict the husband or the in-laws or whosoever, has committed the crime, and at times it could even be relied upon to send the accused to gallows”.

The Chief Justice urged for holding a frequent conversation between doctors and lawyers to remove the doubts that gets created at various instances while delivering the professional duties. She deliberated what needs to be done if the medical examination of a victim of sexual violence records no evidence of rape.

“Rape is not a medical term. It is certainly not taught in the medical books. It has been interpreted after the 2013 amendment to the law and has several nuances and connotations, including outraging modesty and other terms. These are all legal expressions. So what the doctor has to record while doing a medical examination of a patient is debatable,” she added.

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One day Training Programme for Judicial Officers & Doctors on Handling Survivors/Accused of Sexual Violence cases at Hospitals

held on 11th November, 2018 at Judicial Academy, Jammu

She also explained the reason why it is important to sensitize the doctors regarding some legal knowledge and how they are supposed to react when they get a summon from the court. “If a doctor is supposed to come to court as a witness, however, at the same time he gets an emergency call from the hospital to attend a patient urgently. What should a doctor do in such a circumstance? Whether to go to court and or to attend the patient and face the legal warrant afterwards. Therefore, it is important that doctors are aware with the law and how to deal in such circumstances,” said the Chief Justice.

During the day, the resource persons Dr Jagadeesh Narayan Reddy, and Vidya Reddy, presented and discussed various issues at length with the participants.

The discussion on gender issues revolved around on understanding circumstances and context in which sexual violence occurs, while as forensic issues during survivor’s examination were deliberated upon under legal issues and laws governing sessions. Resource person Vidya Reddy made participants understand the importance of understanding child sexual abuse.

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Hon’ble Ms. Justice, Gita Mittal, Chief Justice, High Court of J&K inaugurated the training programme and highlighted the fundamental aspects of medico-legal jurisprudence relating to victims of sexual abuse. Addressing the galaxy of doctors and judicial Officers, the Chief justice emphasized that the basic object of organizing the programme is to explain that the doctors have critical role in helping a victim to have access to justice. When a casualty medical Officer examines a patient, the treatment chart recorded by doctor has a strong bearing upon the legal and constitutional rights of the victim. The history of the patient at times victim of domestic or other violence can become a dying declaration. Doctor is an important gateway of justice of victims of sexual abuse and victims of crime. Doctors have to be very fair and impartial in their professional duties. Doctors are supposed to be well informed on issues relating to informed consent of the victim of crime, the tests which are necessary for medical examination and the medical tests which are unnecessary for the patient. Chief Justice highlighted that the basic purpose of the training is to identify the role of doctors while dealing with the victims of crime and help the criminal justice system to come to the rescue of the victims and strengthen their faith in the system. This programme is very appropriate and timely taking into understanding the rise in the reported cases of violence against women and also the gaps in responding to the needs of survivors of sexual violence at various levels.

Hon’ble Mr Justice Alok Aradhe, Judge, High Court of J&K in his address highlighted that apart from the efforts by the legislature, the role of doctors, lawyers, judges, and police is inevitable if the real cause of the provisions enumerated is to be enforced. With no implementation by these stakeholders, the provisions in the recently enacted laws, rules, recommendations and Judicial precedents will be rendered infructuous. Sexual violence, in addition to being a violation of human rights, is an important public health issue as it has several direct and indirect health consequences.

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Survivors of sexual violence may present to health care services with varying signs and symptoms.

Hon’ble Ms. Justice Sindhu Sharma in her address deliberated that Sexual assault survivors have to deal with a lot of silencing, from the legal system, families, institutional structures and often their own emotional trauma, guilt, and shame; so many of the best ways to help and support them are structured around facilitating their voices, and allowing them to be heard. Nothing more, nothing less. In a broader context, you can show your willingness to stand up for them and all victims in general.

Resource Persons Dr. Jagadeesh Narayana Reddy and Dr. Padma Deosthalli

deliberated upon Understanding circumstances and context in which sexual violence occurs, Forensic Issues during Survivor examination, Clinical issues Consent, History, examination of survivor (MoHFW guidelines), evidence collection, Understanding Child Sexual Abuse, Opinion writing in cases of survivor, Treatment, Forensic issues and clini-cal examination of Accused, Deposing evidence in the Court of law.

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With an aim to sensitize different stakeholders on the subject, State Judicial Academy organized a day-long training program at District Court Complex, Srinagar in which Judicial Officers of District Srinagar, Jail Authorities of Central Jail Srinagar, District Jails of Baramulla, Kapwara and Anantnag, Chief Prosecuting Officer Srinagar and the members of Juvenile Justice Board Srinagar participated.

District & Sessions Judge, Parvaiz Hussain Kachroo, CPC, e-Courts Project Malik Shabir Ahmad and Munsiff Umesh Sharma associated to e-courts project were the resource persons on the occasion.

During the training program the participants were made aware about the amendments made in the Code of Criminal Procedure for enabling use of Video Conference between the Court & Jails in Criminal Proceedings.

The participants were also informed about the hardware requirements and the procedural safeguards to be observed while holding such Video Conferences. A practical Session was also conducted wherein Video Conference link was established first be-tween the Conference Hall & Central Jail Srinagar and then between the Conference Hall &

Training of Judicial Officers for using VC facilities in the Court held on 25th November, 2018 at Srinagar

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Kotbalwal Jail Jammu. A dummy session of Judicial Remand was also conducted during the prac-tical session.

The participants actively participated in different sessions and interacted with the resource persons on different issues relating to the subject.

Earlier Principal District & Session Judge Srinagar, Abdul Rashid Malik made the introductory comments and stressed upon the Judicial Officers to make maximum use of ICT in the Justice Delivery System.

He said the video conference equipments have already been provided to all the Court and Jails of the State and the program is being implemented under the guidance and directions of Chief Justice of J&K High Court, Justice Gita Mittal, and Justice Rajesh Bindal Chairperson Computer & e-Courts (e-Governance) Committee.

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1. Case Number : C.A. No. 11495 of 2018 30-11-2018 Title : Ramla v. National Insurance Co. Ltd. Date of Judgment : 30-11-2018 Hon’ble Supreme Court There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation”. Hon’ble Supreme Court held that the Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time­barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are duty bound to award just compensation.

2. Case Number : C.A. No. 8649 of 2018 30-11-2018 Title : State of Bihar v. Kirti Narayan Prasad Date of Judgment : 30-11-2018 Hon’ble Supreme Court In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their

LEGAL JOTTINGS

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appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularisation of their services by invoking para 53 of the judgment in Umadevi (supra) does not arise. Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution or under any other disciplinary rules shall not arise. 3. Case No. CIVIL APPEAL NO. 8145 OF 2018 Title : Ram Chandra Singh v. Rajaram and Ors. Date of Judgment : 14-08-2018 Motor Accident Claims - Fake Driving Licence - If the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. 4. Case No. CIVIL APPEAL NO. 8251 Of 2018 Title : Union Bank of India & Others v. C.G. Ajay Babu & Another Date of Judgment : 14-08-2018

Payment of Gratuity Act, 1972 - Whether forfeiture of gratuity, is automatic on dismissal from service - Held, forfeiture of gratuity is not automatic on dismissal from service; it is subject to sub-Sections (5) and (6) of Section 4 of the Act. 5. Case No. CIVIL APPEAL NOs. 8256-8257 OF 2018 Title : M/s Alagu Pharmacy v. N. Magudeswari Date of Judgment : 14-08-2018

Eviction & Rent Control - In cases where protection under a Rent Act is avail-able, no eviction can be ordered unless ground seeking eviction is made out, even if par-ties had entered into a compromise. 6. Case No. SLP (CRIMINAL) No. 6740 of 2018 Title : Imtiyaz Ramzan Khan v. State of Maharashtra Date of Judgment : 14-08-2018

Criminal Trial - All Legal Services Authorities / Committees in every State to ex-tend the facility of video conferencing between the counsel on one hand and the accused or anybody in the know of the matter on the other in every criminal case wherever the ac-cused is lodged in jail, so that the cause of justice is well served.

7. Civil Appeal No. 7079 of 2018 (arising out of SLP (civil) No.18465/2018) Samir Narain Bhojwani v. M/s Aurora Properties & Investments & another Hon’ble Supreme Court held as under: (i) Principle of moulding of relief may/can be applied/resorted at the time of consideration of final relief in the main suit, and not at an interlocutory stage. (ii) Mandatory relief by way of interim injunction may be granted only to restore the status quo, and not to establish a new set of facts.

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8. Jharkhand State Housing Board v. Didar Singh & another Civil Appeal No. 8241 of 2009, decided on October 9th 2018. Hon’ble Supreme Court held that a mere suit for injunction does not lie when the de-fendant raises a genuine dispute with regard to title, and when he raises a cloud over the title of the plaintiff. Necessarily, in those circumstances, plaintiff can not maintain a bare suit for injunction. 9. Palani v. State of Tamilnadu Criminal Appeal No.1100 of 2009 Hon’ble Supreme Court held that the oral evidence has to get primacy, and medical evidence is opinionative, the same states that the injury could have been caused in the manner alleged, and nothing more. Reliance was also placed on State of Haryana v. Bhagirath and others (1999) 5 SCC 96 wherein it was held that the opinion given by the medical witness need not be the last word on the subject, such an opinion shall be tested by the Court, and that the court is not obliged to go by that opinion, if the opinion is bereft of logic or objectivity. It has also been held in Palani case that even long delay in registration of FIR can be condoned if the witness has no motive to implicate the accused falsely. 10. Criminal Appeal No. 1487 of 2018 (Arising out of special leave petition (Crl) No. 7933 of 2018) Hon’ble Supreme Court held that the High Court ought not to have gone into the

aspect whether there was requisite intention, when the investigation was yet to be completed, and charge sheet, if any, was yet to be filed.

11. Union of India v. Nareshkumar Badrikumar Jagad & others Review petition (C) D. No. 40966 of 2013 in civil appeal No. 7448 of 2011

Hon’ble Supreme Court held that it had no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition, while observing that section 114 CPC postulates that any person considering himself aggrieved would have locus to file a review petition, as restated by order XLVII CPC.

12. Divisional Forest Officer Doda v. Mohammad Mushtaq & another Decided on 03-11-2018 by High Court of J&K Held that Re-appreciation of the facts under Section 26-B of the Forest Act is permissible. While dealing with section 26-B Forest Act, the Hon’ble High Court has held that the object of the revision is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury and hardship to individuals. And the purpose of revision is to enable the revision court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the inferior criminal court. Sessions Judge may call for and examine the record of any proceeding in terms of section 26-B of Act for the purpose of satisfying itself or himself as to the correctness, legality or propriety of order of authority under Forest Act.

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13. Girdhari Lal v. Ram Lal Civil Second Appeal No. 14/2003 Decided on 03-10-2018 by High Court of J&K Held that there is no absolute law that a suit for injunction by one co-sharer against other co-sharer is not maintainable and the co-sharer approaching the Court should be relegated to the alternative efficacious remedy of seeking partition.

It also reiterated the proposition of law that passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.

14. Anil Kumar Bhatia v. Abdul Salam Loan CRMC No. 129/2014, IA No. 152/2014 Decided on 16-11-2018 by High Court of J&K While placing reliance on 1992 Supp (1) SCC 335, Hon’ble Court held that any ef-fort to settle civil disputes and claims, which do not involve any criminal offence, by ap-plying pressure through criminal prosecution should be deprecated and discouraged.

15. In CMAM No. 02/2018 New Indian Assurance Co. Ltd. v. Ali Mohammad Dar & Ors., decided on 10th of October 2018 by High Court of J&K Hon’ble Court held that the award passed by the Motor Accident Claims Tribunal may be looked into afresh, even when the same had not been pleaded earlier by the In-surance Company. In the said case, reliance was also placed on S.P. Chengalavaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. & Ors. reported in AIR 1994 Supreme Court 853, United India Insurance Co. Ltd. v. Rajendra Singh & Ors. reported in AIR 2000 Supreme Court 1165, and A. V. Papayya Sastry & Ors. v. Government of A.P. & Ors. reported in AIR 2007 Supreme Court 1546.

In S.P. Chengalavaraya case, the Hon’ble Apex Court has held as under: “….The principle of "finality of litigation" cannot be pressed to the extent

of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation…’’

16. In MA No. 247/2011titled National Insurance Co. Ltd. v. Dr. Abdul Khaliq de-cided on 15-10-2018, the Hon’nble High Court of J&K has held that :

Appeal was filed by NI Company against the award dated 18-01-2011 passed by Motor Accident Claim Tribunal Jammu whereby respondent no. 1 was awarded compen-sation to the tune of Rs. 27,23,688/- along with interest. Appeal was filed purely on merit. Sum awarded on account off pain and suffering, medical expenses, transportation charges, was not assailed. Respondent no. 1 was working as lecturer in Baba Ghulam Shah Budshah University, and drawing a salary of Rs. 34000/- per month at the time of accident, and he continued to serve in the University while receiving same salary. As per

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respondent no. 1, his chance of further progression in career and life has been seriously impaired as he suffered 40 % visual disability, and 50 % loco motor disability. Award brought down to 15 lacs as there was absence of any material on record, to work out the exact loss of future earning capacity. Appeal is allowed. 17. Harsh Mahajan and Anr. v. M/s Apex Builders, 2018 0 Supreme (J&K) 678 Hon’ble High Court of J&K held that time, place, month and year of criminal incident are very much essential for taking cognizance, because on the basis of these averments the court has to frame charge and proceed with trial, while also observing that, as per Section 222 of Chapter XVIII of Cr.P.C, the charge must contain particulars as to time, date, place, month, year and manner of alleged offence. Reliance was also placed on State of Telangana v Habib Abdullah Jeelani & Ors., AIR 2017 SC 37 wherein it has been laid that the complaint is liable to be quashed, if it does not disclose any offence, or is frivolous, vexatious or oppressive, and that it can be quashed, if the allegations set out in complaint do not constitute offence of which cognizance has been taken by Magistrate. 18. New Indian Assurance Co. Ltd. v. Ali Mohammad Dar & Ors. CIMA No. 02/2018 Decided on 10th of October 2018 by High Court of J&K Hon’ble Court held that the award passed by the Motor Accident Claims Tribunal may be looked into afresh, even when the same had not been pleaded earlier by the In-surance Company. In the said case, reliance was also placed on S.P. Chengalavaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. & Ors. reported in AIR 1994 Supreme Court 853, United India Insurance Co. Ltd. v. Rajendra Singh & Ors. reported in AIR 2000 Supreme Court 1165, and A. V. Papayya Sastry & Ors. v. Government of A.P. & Ors. reported in AIR 2007 Supreme Court 1546.

In S.P. Chengalavaraya case, the Hon’ble Apex Court has held as under: “….The principle of "finality of litigation" cannot be pressed to the extent

of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation…”.

19. Mohan Lal v. State of Punjab Criminal Appeal No.1880 of 2011

Hon’ble Supreme Court held that a fair investigation, which is but the very founda-tion of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.

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1. Workshop on sensitization of Family Court matters. 2. Workshop on Cyber Laws and Cyber Forensics. 3. Induction Training Programme for newly recruited Civil Judges

(Junior Division)

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COMING-UP EVENTS