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An Inquisitive Report on Justice Delivery System In UT of JandK post the

Amendment of Article 370

Research · April 2021

DOI: 10.13140/RG.2.2.28456.29442

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1
2
INDEX

Serial No. Topic Page Number

1. Internship Certificate 2
2. Index 3
3. Table of Abbreviations 4
4. Acknowledgements 5
5. Pre-Script 6
6. Court of: 7
Munsiff
Judicial Magistrate of First Class
Chairman Tehsil Legal Services Committee
7. Jurisdiction and Composition of the Court 8
8. Prominent Criminal Cases 9-19
9. Observations and Recommendation 20-23
10. Prominent Civil Cases 24-29
11. Prominent Quasi-Criminal Cases 30-35
12. Observations and Recommendations 36-37
13. Changes After Amendment 38-51
a. Transfer of Registration Powers from Judicial a. 39
Magistrate b. 40-43
b. Changes in Penal Code c. 44-51
c. Changes in Criminal Procedure Code
d. Dissolution of State Information Commission

14. Conclusion 52

3
TABLE OF ABBREVIATIONS

Serial No. Abbreviations Full-Form

1 Ors Others

2 UT Union territory

3 FIR First Information Report

4 APP Assistant Public Prosecutor

5 P/W Prosecution Witness

6 P/S Police Station

7 CrPC Criminal Procedure Code

8 CPC The Code of Civil

Procedure
9 IPC Indian Penal Code

10 L/C Learned Counsel

11 SHO Station House Officer

12 RPC Ranbir Penal Code

13 NIA Negotiable Instrument Act

14 PCR Police Control Room

15 DV Act Protection of Women From

Domestic Violence Act
2005

4
Acknowledgements
My Humble acknowledgement to Dr. Farooq Ahmad Mir, Dean School
of Legal studies for facilitating this internship. I pay my respect to
Professor Mashooq Ahmad Wani for giving a helping hand every time
there was a trouble.
I present my sincere and humble gratitude to Ms. Nusrat Ali Hakak (
Munsiff/Judicial Magistrate of First Class/ Chairman Tehsil Legal
Services Committee) for receiving me in desired manner at the court.
My unlimited thanks to Mr Akhtar Rasool ( Public Prosecutor ) for
constantly motivating me for this work , for answering my questions and
treating me more well than expected. I Truely admire Arshid Qadir and
Mehrajuddin for their true efforts in bearing me at the Prosecution office
and for being too good to me. My regards to Advocate Wajid for
helping me duly. My solemn gratitude to Advocate Tasaduq Farooq Mir
for his support. My wishes to Advocate Mehrajuddin for sharing his
humbling experience. My Special Thanks to Mr. Zahoor for teaching me
Court ethics and discipline. I present my sincere love to all the Bar
members at Pampore Court.

5
 Pre-Script
My name is Haider Rasool. I am the student of 8th semester from School of Legal Studies at
Central University of Kashmir. My enrollment number is 1707cukmr008. This work can be
addressed as the internship report/court diary, as one pleases.

The Bar Council of India regulates legal education in India. Internships are essential
requirements of it. I was therefore deputed in the Munsiff Court/ Court of Judicial Magistrate of
Ist Class, Pampore by the School of Legal studies Department of Law Central University of
Kashmir under the Letter no: CUKmr/D.Law/Court.20/16, Dated: 27/02/2021.

I present my work to the reader with outmost respect. I would love to tell the readers about my
scheme of writing this report. My frame of mind has been an effort towards uniqueness
accompanied with the important procedural information of the courts. I have given more
importance to that information which is not listed typically in the concerned statutes.

6
Court of Munsiff/Judicial Magistrate of First Class Pampore

The Court of Munsiff /Judicial Magistrate of first class Pampore is located close to the national
highway. On its west is the primary school. On the south is the Famous ground “Tanchi bagh”.

The Munsiff Court Complex, Pampore was inaugurated By Hon’ble Mr. Justice M.M. Kumar,
Chief Justice High Court Of Jammu And Kashmir In Presence of Hon’ble MR. Justice Ali
Mohammad Magrey Judge High Court Of Jammu and Kashmir on Thursday 24th, October 2013.

The Renovated Court building was inaugurated by Hon’ble MR. Justice Pankaj Mithal Chief
Justice Common High Court of Union Territory Of Jammu and Kashmir and Ladakh In Presence
of Hon’ble MR. Justice Ali Mohammad Magrey Judge Common High Court Of Jammu and
Kashmir and Ladakh on 24th of February,2021.

It was at first working from a building situated in drangbal till the renovation of the Court at its
original place was completed.

7
Composition and Jurisdiction of the
Court

The Court Consists of a Munsiff/Judicial Magistrate of First Class as the presiding officer. The
Same Judge acts as Munsiff in Civil matters and Judicial Magistrate of First Class in Criminal
matters.

The Jurisdiction of the court can be classified as the following:

1. Territorial Jurisdiction: The jurisdiction of this court extends to the territorial limits of
Pampore as per the revenue records. Mainly cases from the Police Station Pampore and
Police Station Khrew come to this Court.

2. Pecuniary Jurisdiction: The Munsiff Court has jurisdiction in civil matters where the suit
valuation is less than 25000 rupees.

3. Criminal: Generally This court can award punishment of upto three years or fine not
exceeding 10,000 or both.

8
Prominent Criminal Cases

Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. BILAL AHMAD BHAT

FIR Number: 30/2018 Sections Involved: 341,323,506

Act: RPC Year: 2018

Complainant: Fatima Bano Investigating Agency: P/S Pampore

Brief Facts: During day at around 10 AM Bilal Ahmad Bhat and his father Ghulam Qadir Bhat
beat Fatima and when her husband came to the rescue, he was also beaten. The accused also
threatened to kill her. Thereafter the Complainant went to the police station and lodged her
complaint. The police did the investigation and a report was submitted to the magistrate.

Present day Proceedings: Public Prosecutor Present. The accused along with his counsel
Present. The counsel for accused submitted that accused number two has expired. As such
direction was given to the prosecution to bring on record the issued death certificate of accused
number two.

Status: For Prosecution Evidence

9
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. NIYAZ AHMAD BHAT

FIR Number: 171/2016 Sections Involved: 431,427

Act: RPC Year: 2016

Complainant: Inhabitants of Patalbagh Pampore Investigating Agency: P/S Pampore

Brief Facts: Illegal extraction of sand from the river Jhelum by Mohd. Shafi, Hilal Ahmad,
Sajad Ahmad dar, Niyaz Ahmad Bhat. This is being done by use of machines. The general public
of Patalbagh wrote a complaint to the police station. The investigation was conducted and a
report was submitted to the magistrate.

Present day Proceedings: The accused persons were absent and warrant of arrest which is non-
bailable were issued by the honourable court. SHO concerned was directed to execute the said
warrant so that the accused would be present on next hearing.

Status: For Prosecution Evidence

10
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. MOHD AMIN DAR

FIR Number: 80/2014 Sections Involved:

279,337,304A

Act: RPC Year: 2014

Complainant: Suo Moto Cognizance by police Investigating Agency: P/S Pampore

Brief Facts: Sajad Ahmad Dar was driving truck from Awantipora to Srinagar. At kadlabal
chowk he collided with a scooty. A woman who was on the scooty died on spot. She was taken
to hospital where she was confimed as dead. The Driver ran from the spot. The police took the
cognizance of the accident and conducted the investigation. The report of investigation was
submitted to the magistrate.

Present day Proceedings: Public Prosecutor Present, The accused along with the counsel
present. The Honourable court has put the case for final arguments on the next hearing.

Status: For Final Arguments.

11
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. ARSHID AHMAD BHAT

FIR Number: 108/2017 Sections Involved: 510

Act: RPC Year: 2017

Complainant: Ghulam Mohiuddin Bhat Investigating Agency:P/S Pampore

Brief Facts: On 7th June 2017 Arshid Ahmad Bhat after drinking liquor on road started shouting
loudly due to which people faced problems. The Complainant Lodged an FIR against the
accused. The police conducted the investigation and submitted the report to magistrate

Present day Proceedings: Public Prosecutor Present, Accused Present. P/W number 5 present.
Due to the end of the time of court, the statement of the witness could not be taken. He was
advised to be present on next hearing. P/W number 3 was not present despite of service. Warrant
was issued againt him.

Status: For Prosecution Evidence

12
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. JAMSHED AHMAD HUSRA AND ORS

FIR Number:16/2017 Sections Involved:307,147,148,341,353

Act: RPC Year: 2017

Complainant:State through Police station Pampore Investigating Agency: P/S Pampore

Brief Facts: On 31-01-2017 at 4 PM, On a specific information about the presence of armed
anti-state elements in Samboora Village of Pulwama District, Cordon and Search Operation was
Conducted. During the said operation the security forces came under heavy stone pelting. The
police inturn used teargas,pellets and fired a few shots to disperse the unlawful mob. Bullet
injuries were received by four youth. They were taken to hospital and FIR was filed against the
mob. Investigation was conducted and a report was submitted to the magistrate.

Present day Proceedings: Public Prosecutor Present. The accused along with the counsel also
present. The prosecution was directed to produce all the witnesses in the next hearing.

Status: For Prosecution Evidence

13
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. MOHAMMAD SHABAAN DAR

FIR Number: 48/2017 Sections Involved: 427,447,506

Act: RPC Year: 2017

Complainant: Ghulam Hassan Teli Investigating Agency:P/S Pampore

Brief Facts: It was complained by Ghulam Hassan Teli that the accused persons who are the
residents of Chatlam Lalpora Pampore without any legal qualification damaged the wall of his
house. The complainant went to police station and lodged an FIR. An investigation was
conducted by the police and a report was submitted to the magistrate.

Present day Proceedings: Public Prosecutor Present, Accused number 1 and 3 present. Counsel
on behalf of the exempted accused present. P/W number 4 and 3 present. The statement of the
P/W number 4 was put on record. P/W number 3 though present but because of being ill could
not put on record her statement.

Status: For Prosecution Evidence

14
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. ABDUL AHAD GANAI AND ORS

FIR Number: 98/2015 Sections Involved: 341,354,323

Act: RPC Year: 2015

Complainant: Ghulam Qadir Dar Investigating Agency: P/S Pampore

Brief Facts: The complainants got a soil tipper into their land. The accused started shouting and
telling the complainants that they had taken the tipper from their land. There were some
arguments and after that the accused along with his two sons beat the mother of complainant as
well as the complainant during which they suffered injuries. An FIR against the accused was
lodged by the complainant. After conducting the investigation, a report was submitted to the
magistrate.

Present day Proceedings: Public Prosecutor present, Accused number 1 not present. The
counsel on behalf of exempted accused number 2 and 3 present. Non-bailable warrant was issued
against accused number 1 to be present on the next hearing.

Status: For Prosecution Evidence

15
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. GHULAM QADIR CHAT

FIR Number: 169/2017 Sections Involved: 447

Act: RPC Year: 2017

Complainant: State via English Letter 415/R Investigating Agency: P/S Pampore

Brief Facts: A letter was received by the Police Station Pampore about the encroachment by the
accused in Pampore wetlands. Investigation was started on the received complainant. A report
was submitted to the magistrate.

Present day Proceedings: Public Prosecutor Present. All the accused other than accused number
3 and 4 along with their counsels were present. Non-bailable warrant was issued against accused
number 3 and 4.

Status: For Prosecution Evidence

16
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. KHURSHEED AHMAD SHEIKH

FIR Number: 100/2015 Sections Involved: 170,416,419

Act: RPC Year: 2015

Complainant: Mr. Mir Wajahat Investigating Agency: P/S Pampore

Brief Facts: There was a complaint that in the premises of this court (Munsif Court pampore)
some people are doing unauthorized work. The Police Lodge FIR and started investigation into
it. A report was submitted to the magistrate.

Present day Proceedings: Assistant Public Prosecutor Present, accused along with his counsel
present. P/W number 8 present. The Statement of P/W number 8 was put on record. The court
directed the prosecution to present all the witnesses on the next date s the last opportunity after
which the witnesses will be closed.

Status: For Prosecution Evidence

17
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. MOHAMMAD YOUSUF TELI

FIR Number: 09/2018 Sections Involved: 341,323

Act: RPC Year: 2018

Complainant: Nazir Ahmad Teli Investigating Agency: P/S Khrew

Brief Facts: The complainant was building a fence in his home. While working he needed some
stuff and went towards the shop for it. On the way, the two accused started arguing with him as
to why he was building the fence. During the argument the two accused suddenly started beating
him. The Complainant went to Police Station and Lodged an FIR. Investigation was conducted
and a report was submitted to the magistrate.

Present day Proceedings: Assistant Public prosecutor present. Accused Absent. A non-bailable
warrant was issued against the accused.

Status: For Prosecution Evidence

18
Week First: March 2021

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

STATE V. SHAHID HAMEED BHAT

FIR Number: 141/2017 Sections Involved: 279,337

Act: RPC Year: 2017

Complainant: State through Police station Pampore Investigating Agency: P/S Pampore

Brief Facts: On 21 July, 2017 a road traffic accident took place near Galander on National
Highway between a tipper and Alto,both coming towards Srinagar resulting injuries to alto
driver. Both vehicles were seized. FIR was lodged and investigation was conducted. Report was
submitted to the magistrate.

Present day Proceedings: Assistant Public prosecutor present. Accused absent. A non-bailable
warrant is issued against the accused

Status: For Prosecution Evidence

19
OBSERVATIONS
• Issuing of Warrant: If the accused or witness who is important for the case does not
attend the court, the court issues a warrant against such person to enforce his attendance.
If the warrant is bailable the person can by giving a bailbond and being laible for certain
amount or by surety as the court deems fit, consent to showing his attendance at the court.
Generally in such cases the court issues a non-bailable warrant against such person
through the concerned SHO, who inturn produces the accused on the said date.
• Docket: A docket is nowhere mentioned in the code of criminal procedure 1973. It is a
rule of practice in the courts. When an accused or a witness is to be summoned before the
court as a matter of evidence that the notice was given to the accused or witness, a
Docket is issued by the prosecution. It is signed by various official persons when it
reaches to them. First the prosecution seals and sends it to concerned SHO. The date of
such sending is mentioned on the docket. When it reaches to the SHO, he signs it with the
date of such receiving and appoints the officer for the work, mentioning it in writing on
the docket. The oppointed officer for the task then goes to the residential place of the
accused or the witness as the case may be and takes his signature or thumb impression as
an evidence that he has received the information. The docket then comes back through
the same route and in similar manner to the Prosecution. The significance of docket is
that if the accused or the witness does not attend the court on the mentioned date, the
court can issue a warrant against such person.
• Signal: If the accused or the witness is residing outside the local jurisdiction of
concerned court, a Signal is made by the prosecution to the police station within their
jurisdiction which inturn makes the signal to the police station of the area in which the
accused or the witness is residing. In case of a summon, the information is provided to
such person to be present on such date in the court and in case of a warrant, bailable or
non-bailable as the case may be, he may be presented in such court.
• Use of Section 354 IPC: In Majority of offences involving a women, the complainant
side allege the offence of 354 IPC against the accused. This makes the case cognizable
and on time arrest of the accused takes place. The irony is when the Complainant after a
year or so are cool headed and want to settle the case. They find it hard even for
themselves as 354 being non-compoundable does not settle easily.
• Hostile Witness: After 1 or 2 years of a trial, the witnesses start turning hostile. What I
feel is the basic reason for this is the lengthy process of trial. The witness and even the
victim himself starts losing interest in the case after 1 or 2 years.
• People fear not the Penalties but The procedure: Law was created to accompany
people as a guide so as to prevent them from hurting each other. It was created to show a
way of life and whoever goes against it, would be accordingly penalized. Thus it can be
said that people were supposed to fear the penalties imposed under law. However people

20
 are fearing the procedure instead. The irony being that procedure is feared more by the
victims and less by the accused.

• Common People have absolutely no idea about what is happening: The ultimate aim
of the courts is justice. Justice is the Primary purpose for the creation of Courts. It has
been rightly said that Not only must justice be done, it must also be seen to be done. But
what can people see when the procedure is more complex than a jigsaw puzzle.

21
 RECOMMENDATIONS
• Psychology: The Judges need to respect and understand emotional character of
the case more importantly in the archaic judicial system of our country. It takes
years and in some cases decades to reach for judgement. Until that time victim
and the witnesses are more vulnerable in an emotional sense. After the Lodging of
FIR, the report is submitted to the magistrate as a result of a lengthy process in the
first place. After that the attendance of the accused remains an issue in case of
non-cognizable offences or where the accused is released on bail. Thereby it tires
out the victim and the family and a doubt as to why they had approached the
system starts clicking their mind. The Case moves on and the court enforces the
attendance of accused and on to evidence stage. Here it is important for the judges
to understand the emotions of the victim and the witnesses. In majority of cases
the witnesses are the family of the victim or whoever it may be. They get quite
emotional while narrating the facts and since it has been a long time since the
event, it is logical that the witnesses may miss some minor details. Here the duty
of court arises to hear them patiently and it should be totally understood by the
court if emotions drop out in the court. Majority of times Old people and young
boys while telling the truth may also say some stuff which may not be relevant to
the case and may be taking time of The Hon’ble court. The Hon’ble court should
understand that a minor (Normally Negligible) taunt to the witnesses will be
harsher than death to the victim because what will click to the mind of victim is
that it is because of him/her that the witnesses (Parents, relatives etc) are facing
such abuse.
As such a recommendation from my side would be to read the psychology books
of NCERT class 11th and 12th

• Victim Friendly: Whether charges are true or false should have been a concern
of the investigating agency. The investigating agency should do the neutral work
and find all the relevant evidence. However what is the concern here is that once
the report is submitted to the magistrate and charge is framed. The judiciary
should rightaway start delivery of justice in small details without causing any
prejudice to the accused. The court should favour the victim to the extent of not
prejudicing the accused. The victim should not be forced to answer any question
that she/he reasonably does not want to answer or the questions that are out-
rightly insensitive. This becomes more important in cases where the victim is a

22
 female. And thus to correct this, We will have to accept that at the moment the
system is such that victims need a protection from the legal process itself.
• Courts Sould Exercise More Discretion: In the interest of Justice, the court
should exercise power in the manner it deems fit. It should be innovative to the
extent of being fair. For Example when a case comes to the court, the hon’ble
court should ask both counsels as to how much time would the case take for
deciding. This would be not something which is to be mandatorily followed but
an encouraging step towards speedy trial. If a case involving injury, hurt or
similar offences comes to the court, the judge should talk to the counsels and tell
them lets decide this case within a year. Lets try our best. Keep it simple and
clear. The judge should talk to the accused himself and if the judge thinks that the
accused is guilty and is truly sorry for his act, the judge should tell him to confess
and in return he will be given a lenient punishment. He would be imprisoned for 6
months suppose and if he shows good behavior in first 2 months he will be
released on parole.
• Ethics of Advocacy: The Basic ethic of an advocate should be to serve the best
interests for his client in the lowest time frame. There should hardly be cases in
which the advocate wants to prolong the process and go on and on with the case.
But unfortunately the opposite is happening. Thus to address this, a separate
department should be created in the courts which looks into these issues. The
advocate who is found guilty should be dealt with strictly.

23
Prominent Civil Cases

WEEK 2, March 2021

IN THE COURT OF MUNSIFF

HABIBULLAH DAR V. MUKHTAR AHMAD DAR AND ANOTHER

Brief Facts: Plaintiff has filed suit against his brother defendant number 2 for partition and
separate possession of land property.

Issues: Partition of property, separate possession of property

Present day Proceedings: Parties along with counsels present. The case was kept for arguments
on next date of hearing

Status: For arguments

24
WEEK 2, March 2021

IN THE COURT OF MUNSIFF

MOHBOOBA V. GHULAM NABI SHEIKH

Brief Facts: The plaintiff being the daughter of defendant has filed a suit against his father for
restraining him from the peaceful possession of suit property out of which the defendant has sold
6 marlas of land to the plaintiff for consideration amount of 6 lakh rupees, also the plaintiff is
submitting that the defendant has orally gifted the other 10 marlas of land out of the suit property
to her.

Issues: Permanent Injunction

Present day Proceedings: Parties along with their counsels were present. The counsel for the
respondent submitted that suit of the plaintiff is not maintainable under rule 7 order 1 as the
plaintiff has mentioned that the 6 marlas of land were purchased for consideration of 6 lakh
rupees. Hence the court lacks pecuniary jurisdiction.

Status: For Orders

25
WEEK 2, March 2021

IN THE COURT OF MUNSIFF

SAFEER AHMAD MALIK V. NORTH HEAD BRITANNIA

Brief Facts: The Plaintiff who is a restraunt owner was supplied Britannia biscuits by a dealer
who has the office at Hyderpora. The supplied biscuits were expired. Plaintiff sued the Britannia
biscuit company as well as the dealer who supplied the expired biscuits.

Issues: Yet to be Framed

Present day Proceedings: The counsel on behalf of the defendant number 1 who is the
Britannia company said to the court that he was yet to receive the notice of the case but he still
came in good faith to defend the Company. The Counsel pleaded that his company should be
removed as defendant in the case as he had no role in supplying the expired biscuits to Plaintiff.
The case was decided for further proceedings.

Status: For written Statement

26
WEEK 2, March 2021

IN THE COURT OF MUNSIFF

GHULAM HASSAN V. ABDUL HASSAN AND ANOTHER

Brief Facts: The defendants have started to raise the level of ground in their land. The plaintiff
thinks that the raising of ground level would cause him injury. Therefore he objected to it and
brought a suit against the defendants.

Issues: Yet to be framed

Present day Proceedings: Counsel and the applicants are present in the court. A notice was
issued to the defendants to be present on the next date along with their counsel.

Status: For Written Statement

27
WEEK 2, March 2021

IN THE COURT OF MUNSIFF

GHULAM AHMAD SHEIKH V. NIGHAT JAN

Brief Facts: The father of the defendants tried to sell his house to the plaintiff. Plaintiff even
gave 2 lakh rupees out of 8 lakh to the defendant’s father at that time. The defendants in the
present case objected to it then and brough a suit for restraining the sale. The father of the
defendants died and now the defendants want to sell the property for 13 lakh rupees to a third
party. The plaintiff brought a fresh suit and is asking restraint of sale. If the property is sold a
permanent injury will be caused to him as he had given 2 lakh rupees as consideration to the
defendants father for suit property.

Issues: Yet to be framed

Present day Proceedings: Plaintiff along with his Counsel present. A notice was issued to the
defendants to be present on next hearing.

Status: For written statement

28
WEEK 2, March 2021

IN THE COURT OF MUNSIFF

ABDUL AHAD BHAT AND ORS V. BASHIR AHMAD AND ORS

Brief Facts: The defendants want to fence their land at Chattlam Pampore. The Plaintiff wants
that his own land falling under survey number 154*4 at Chatlam Pampore measuring 1 kanal and
14 marlas should be demarcated first and then the defendants should be allowed to fence their
land.

Issues: Yet to be Framed

Present day Proceedings: Plaintiff along with his counsel present. The defendant along with
the counsel present. The case is scheduled for written statement on the next date of hearing.

Status: For written statement

29
Cases Of Cheque Bounce Under Section
138 of Negotiable Instruments Act
WEEK 3, March 2021

IN THE COURT OF MUNSIFF

GHULAM MOHAMMAD BHAT V. GHULAM MOHIUDDIN SHEIKH

Brief Facts: The Respondent bought Apples worth 3 lakh and 5 thousand from the
Complainants. The Respondent issued two cheques worth 2lakh and 5 thousand, another worth 1
lakh in favour of Complainant. When the Complainant went to bank the cheques bounced. Thus
a suit under section 138 of Negotiable Instruments Act was brought against the Defendant by the
Complainant.

Present day Proceedings: The Complainant along with his counsel present. The Respondent
along with his counsel present. A compromise took place between the parties and the
respondents, Respondent agreed to pay Rs One Lakh and Seventy Thousand to the
Complainants.

Status: Disposed Off.

30
WEEK 3, March 2021

IN THE COURT OF MUNSIFF

MOHAMMAD YOUSUF KHANDAY V. MOHAMMAD YOUSUF B HAT

Brief Facts: The Complainant wanted to sell his land. He made an agreement with the defendant
and received three cheques worth rupees 10 Lakh and 50 Thousand as consideration. He went to
the Bank but the cheques bounced. As a result he did not handover the possession to the
defendant and also brought a suit against the defendant.

Present day Proceedings: The Complainant along with his counsel present. The statement of
the Complainant as witness was recorded. A notice was issued to the defendants.

Status: For written statement

31
Cases of Maintenance Under Section 125
of C.R.P.C, 1973
WEEK 3, March 2021

IN THE COURT OF MUNSIFF

IBN BASHIR V. SUHAIL AHMAD BHAT

Brief Facts: The parties got married in the year 2020 and after one month of marriage, the
petitioner alleged that she was tortured and mentally harassed by her husband and her in-laws.
The petitioner is at the moment residing in her paternal home. She wants that her husband should
maintain her as he is not performing any of his responsibilities.

Present day Proceedings: The counsel on behalf of both the parties present. The court advised a
mediation session between the parties as it is the case in which the marriage is at stake. The
differences were amicably solved and the case was put for compromise on the next date of
hearing.

Status: For Compromise.

32
WEEK 3, March 2021

IN THE COURT OF MUNSIFF

DILSHADA V. BILAL AHMAD BHAT

Brief Facts: The Complainants, Dilshada and her children, brought a suit against the defendant.
The defendant being the husband of Dilshada and father of the children has not bothered a bit for
them and left them at the mercy of God without any justification. He has not maintained them for
one year and six months. Thus the complainants have brought a suit under section 125 of crpc
against the defendant.

Present day Proceedings: The Complainant along with his counsel present. The defendant
along with his counsel present. The case was put for arguments on the next date of hearing on
27th of March.

Status: For Arguments.

33
Cases Under The Protection of Women
from Domestic Violence Act, 2005

WEEK 3, March 2021

IN THE COURT OF MUNSIFF

NUZHAT V. SHOWKAT AHMAD KASHANI

Brief Facts: The Complainant was living in the house of defendant as his wife. The defendant
along with his family members tortured her continuously and demanded dowry. The father of the
Complainant is an old person and as such cannot pay dowry amount. When the complainant
could not fulfill the demands of defendants, they expelled her from their home in Srinagar. She is
currently residing with her parents. She filed a Complain in this court.

Present day Proceedings: The Court taking cognizance of the matter directed the SHO Pampore
to investigate the issue and submit a report to the court. Meanwhile a summon was issued to the
respondent to be present on next date of hearing.

Status: For Police Report

34
WEEK 3, March 2021

IN THE COURT OF MUNSIFF

RAFIA BHAT V. MOHD MAQBOOL WANI 1**

Brief Facts: The Complainant Filed a case against the defendant under the relevant provisions of
Protection of Women against Domestic Violence Act, 2005. The complainant said that her
husband and the mother of her husband torture her often. They beat her once due to which she
has become partially blind in one eye. She needs immediate medical attention and the doctor that
she consulted has advised her to pursue her treatment in Chandigarh. According to the doctor, If
there is delay in the treatment she can lose all the sight of one eye. The complainant has therefore
filed an application for interim costs to the extent she needs for satisfying her medical expenses.

Present day Proceedings: The complainant along with her counsel present. The Defendant
along with his counsel present. The Court passed an order whereby the respondent is required to
accompany the complainant to Chandigarh and provide for all the medical expenses. Meanwhile,
the counsel on behalf of defendant filed an application for review of the passed order.

Status: For Arguments on review of order.

1
Name Changed**

35
OBSERVATIONS:
Time Consuming: The Civil law is too wide. It takes too much time for civil cases to be decided
on merit. Even the cases with a meagre amount of supportive evidence take years to decide.
There is a saying in courts in case of Civil Matters, that either compromise or wait for ages.

Too Flexible: Flexibility is an important feature of civil law. However this lovely feature is
exploited to the extent that majority of civil cases are frivolous. In case of petty fights in the
neighborhoods, the parties threaten each other of bringing stay orders against them. This has
turned the judicial system into a joke.

Too Complex: The procedure in civil suits is limitlessly complex. Lack of knowledge about
actual ground situation of the suit property accompanied with a Complex procedure is a deadly
combination. This is so much so that a totally absurd suit will take decades to be completely
decided.

Common People have absolutely no idea about what is happening: The ultimate aim of the
courts is justice. Justice is the Primary purpose for the creation of Courts. It has been rightly said
that Not only must justice be done, it must also be seen to be done. But what can people see
when the procedure is more complex than a jigsaw puzzle.

This Observation is a common One in both the civil as well as criminal matters. There are many
which I may be common in both.

36
Recommendations:

Investigating Agency: An investigating agency is need of the hour for speedy process of civil
suits. The agency will look into the ground situation of the suit property. In civil suits when a
party claims possession of a piece of land and says that a house is made on it. It takes years for
court to know that there isn’t any house on the concerned land. Similarly there are cases which
will be speedily processed if an investigating agency is introduced in the scene.

37
 Changes After Amendment

After the Absolute Amendment of Article 370 of the Indian Constitution on August 5 and the
subsequent coming in Force of J&K Re-organization Act 2019, changes have definitely took
place. Section 95 of the said Act provides for a number of laws which are made applicable to the
erstwhile state of Jammu and Kashmir. The Indian Penal Code 1860, Code of Criminal
Procedure 1973, Civil Procedure Code 1908 are among the major change makers. Although the
statutes that were revoked were the similar replicas but even a single different section can open
the flood gates of change. What kind and amount of Changes they will bring about is going to be
a different research in itself. At the moment we will also see the changes through word by word
reading of the concerned statutes. Also there are evident changes like the creation of a separate
prosecution department, Transfer of registration powers to from Judicial Magistrates, dissolution
of state information Commission

38
Transfer of Registration Powers from Judicial Magistrates:
After the amendment The Registration Act, 1977 which applied in the erst-while state of Jammu
and Kashmir was replaced by Registration Act, 1908 (Act No. 16 of 1908).The section 6 of
both the acts gives government discretion to appoint registrars and sub registrars as it thinks fit.
The Government of Erst-while state of Jammu and Kashmir had vested this authority in
Magistrates.

However after the amendment of 370, when the Registration Act , 1908 came into force. The
Lieutenant Governor under the Order number: 117-Rev (S) of 2019, Dated: 24-10-2019 provided
for establishment of a Separate and Independent Registering Department which shall work under
the overall administrative control of the Revenue Department. Accordingly under section 6 of
the said act Registrar(s) and Sub-registrar(s) were appointed.

39
 Changes in Penal Code

Expansion of territorial jurisdiction of Indian Penal Code

After the revocation of the article 370 of the Indian Constitution, the jurisdiction of the Indian
Penal Code has been expanded to the erst-while state and now Two Union Territories i.e Ladakh,
and Jammu & Kashmir.

Extra-territorial Jurisdiction
Section 4 of the both the penal codes penalizes offences committed by the citizen outside of the
state. However, the Indian Penal Code is more detailed in this aspect. There are several
provisions in IPC section 4 which were not present in RPC viz:

“any person in any place without and beyond India committing offence targeting a computer
resource located in India”

“any person on any ship or aircraft registered in India wherever it may be”

“the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-
section (1) of section 2 of the Information Technology Act, 2000”

Definition of Public Officer

This section 21 defines the term “public officer” in the both of the Penal Codes. However this
section is more detailed under RPC. Several Provisions as such are missing in IPC viz:

“Every servant of the Department of Devasthan;”

“Every officer or servant employed by a Municipal Committee, Town Area Committee, Notified
Area Committee, Panchayat, Cooperative Society or Co-operative Bank whether for the whole or
part of his time, and every member of such committee, society or bank;”

“Every officer or servant, and every member (by whatever name called) of a corporation
engaged in trade or industry or of any other autonomous body which is established by an Act of
the State Legislature or of a Government company as defined in any law for the time being in
force in the State;”

“Every officer or servant including medical or para-medical staff of the Sher-i-Kashmir institute
of Medical Sciences, Srinagar.”

40
Carrying Arms in Public Place
Section 153AA was inserted in IPC by Act 25 of 2005, s. 44, This Section is missing in RPC. It
states, “Whoever knowingly carries arms in any procession or organizes or holds or takes part in
any mass drill or mass training with arms in any public place in contravention of any public
notice or order issued or made under section 144A of the Code of Criminal Procedure, 1973 (2 of
1974) shall be punished with imprisonment for a term which may extend to six months and with
fine which may extend to two thousand rupees.

Explanation.—“Arms” means articles of any description designed or adapted as weapons for

offence or defence and includes firearms, sharp edged weapons, lathis, dandas and sticks”

Public servant authorizing contract

Section 167A of RPC states that any public servant who authorises payment to a contractor for
work that is not executed as stated in contract. It imposes punishment, “for a term which may
extend to three years, and shall also be liable to fine.” This section is important as it deals with
corruption whereas IPC doesn’t have any provision for this specific situation.

Prosecution for Sedition

Section 190A of RPC is one of the controversial ones and does not find any place in IPC.It
states,

” Whoever, publishes, circulates or repeats in public any passage from a newspaper,book or

other document, copies whereof have been declared to be forfeited to the Government under any
law for the time being in force, shall be punished with imprisonment for a term which may
extend to six months, or with fine, or with both.

(2) No Court shall take cognizance of an offence punishable under this section unless the Chief
Minister has certified that the passage published, circulated or repeated contains in the opinion of
the Chief Minister, seditious or other matter of the nature referred to in sub-section (1) of section
99-A of the Code of Criminal Procedure, or sub-section, (1) of section 10 of the Jammuand
Kashmir State Press and Publications Act No. 1 of 1989.”

This section therefore put all the limitation powers regarding freedom of speech and expression
on the chief minister and was therefore prima facie arbitrary.

Threatening any Person to Give False Evidence

Under both of the penal codes section 195A deals with Threatening any person to give false
evidence. However the IPC is more detailed here and states, “…and if innocent person is
convicted and sentenced in consequence of such false evidence, with death or imprisonment for
more than seven years, the person who threatens shall be punished with the same punishment and

41
sentence in the same manner and to the same extent such innocent person is punished and
sentenced”

Tampering of documents to be produced in court

Section 204A is not there in the IPC, although tampering of documents to be produced in court
may come under violation of several other provisions, but the express mention of it is always
better. The section 204A of RPC states,” Whoever destroys, cancels, defaces or obliterates or
renders illegible or attempts to destroy, cancel, deface, obliterate or render illegible that whole of
any part of a document with the intention of preventing such documents from being produced or
used as evidence in any Court of Law or in any proceedings lawfully held before a public
servant, shall be punished with imprisonment for a term which may extend to two years, or with
fine, or with both”

Exhibition of false light, mark or buoy

Section 281 of IPC states,”Whoever exhibits any false light, mark or buoy, intending or knowing
it to be likely that such exhibition will mislead any navigator, shall be punished with
imprisonment of either description for a term which may extend to seven years, or with fine, or
with both.”

This provision is missing in RPC.

Dowry Death
Section 304B of both the codes penalizes dowry death. The words used in both the codes is
almostsame and change is negligible. However IPC defines term dowry as same as defined
under section 2 of the Dowry Prohibition Act, 1961. But RPC defines term dowry as defined
under section 2 of Dowry Restraint Act, 1960. There is a difference of definition of dowry as
provided under these two relevant statutes.

Punishment for Rape

For the Offence of Rape RPC provides for a minimum punishment of eight years rigorous
imprisonment which may extend to imprisonment for life. IPC on the other hand provides for a
minimum of seven years rigorous imprisonment which may extend to imprisonment for life.

For the offence of rape resulting in the permanent vegetative state of the victim and The offence
of Gang Rape, the RPC imposes a minimum of twenty-five years of rigorous imprisonment
compared to the twenty years in the Indian Penal Code

In the case of sexual intercourse by the husband with his wife after separation without her
consent the IPC gives a strict punishment than RPC. In such cases IPC provides “imprisonment
of either description for a term which shall not be less than two years but which may extend to
42
seven years, and shall also be liable to fine.” The RPC in such cases provides for,
“imprisonment of either description, for a term which shall not be less than one year but which
may extend to three years, and shall also be liable to fine.”

Cheating public authorities

Section 420-A of RPC gives punishment for Cheating public authorities in performance of
certain contracts.This provision is missing in the IPC.

43
 Changes In Criminal Procedure Code

A Separate Prosecution Departnment

Prosecution Department is quite new at the courts in Jammu and Kashmir. It is a real must to
understand its history as such.

Before the enforcement of Jammu and Kashmir Reorganisation Act, 2019 “Prosecution” was a
wing of Police Department, having a separate cadre of officers, being governed by the Jammu
and Kashmir Police (Gazetted) Service Recruitment Rules, 2002 in respect of Gazetted officers
and Police Rules, 1960 in respect of Non-Gazetted officers.

With The Enforcement of Jammu and Kashmir Reorganisation Act, 2019 , the Code of Criminal
Procedure , 1973 became applicable to the Erstwhile State Of Jammu and Kashmir. In exercise
of the powers under section 24 of Code of Criminal Procedure , 1973, the Government of
Jammu and Kashmir Home Department issued notification no: Home/GB-Misc/2019, Dated:
31/10/2019 and thereby appointed the Chief Prosecuting Officers of the Jammu and Kashmir
Prosecution Service as Public Prosecutors and Additional Public Prosecutors.

In exercise of the powers under section 25 of Code of Criminal Procedure , 1973, the
Government of Jammu and Kashmir Home Department through the same notification appointed
the Senior Prosecuting Officers and Prosecuting Officers of the Jammu and Kashmir
Prosecution Service as Assistant Public Prosecutors.

The Government under section 25A Established Directorate of Prosecution and created a
Separate Prosecution service to be known as the “Jammu and Kashmir Prosecution Service”

The Work of Prosecution is basically to defend the state and thereby assist the court.

Jurisdiction in the case of juveniles:

The JKCrPC did not contain express provision with reference to jurisdiction in cases of
juveniles. However the central CrPC under its section 27 clearly lays down “Any offence not
punishable with death or imprisonment for life, committed by any person who at the date when
he appears or is brought before the Court is under the age of sixteen years, may be tried by the
Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children
44
Act, 1960 (60 of 1960), or any other law for the time being in force providing for the treatment,
training and rehabilitation of youthful offenders.”

Enhancement of Fine that Judicial Magistrates can Impose:

Under JKCrPC section 32, the maximum fine that the Judicial Magistrate of First Class and
Second Class could impose was Rupees 5,000/ and Rupees 1,000/ respectively. However under
the central CrPC section 29, the maximum Fine that Judicial Magistrate of First Class and
Judicial Magistrate of Second Class can impose is Rupees 10,000/ and Rupees 5,000/
respectively.

Village headmen, accountants, landholders and other bound to report certain matters:
Under section 45 of JKCrPC the Village headmen, accountants, landholders and others were
bound to report certain matters mentioned therein to the nearest Magistrate or to the officer-in-
charge of the nearest police station. The appointment of village-headman by District Magistrate
or Sub-Divisional Magistrate in certain cases for purposes of achieving the object of this section
could also be facilitated. However there is no such provision under the Central CrPC.

Pursuit of offenders into other jurisdiction:

Under section 58 of JKCrPC the Police Officer was authorized only to pursue an offender into
any place of Jammu and Kashmir. However Under section 48 of central CrPC, A police officer
may, for the purpose of arresting without warrant any person whom he is authorised to arrest,
pursue such person into any place in India.

Health and safety of arrested person:

Under section 55A of the central CrPC, It shall be the duty of the person having the custody of
an accused to take reasonable care of the health and safety of the accused. However there isn’t
any section as such in JKCrPC.

Arrest to be made strictly according to the Code:

Section 60A of Central CrPC provides that No arrest shall be made except in accordance with the
provisions of this Code or any other law for the time being in force providing for arrest. There
wasn’t express provision as such in JKCrPC.

Warrant may be directed to land-holders etc:

Under Section 78 of JKCrPC, “A District Magistrate or a Chief Judicial Magistrate or a Sub-
Divisional Magistrate or a Judicial Magistrate of the first class may direct a warrant to any
landholder, farmer or manager of land within the area of his jurisdiction for the arrest of any
escaped convict, proclaimed offender or person who has been accused of a non-bailable offence,

45
and who has eluded pursuit. Such land-holder, farmer or manager shall acknowledge in writing
the receipt of the warrant, and shall execute it if the person for whose arrest it was issued is in, or
enters on, his land or farm, or the laden under his charge. When the person against whom such
warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer,
who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless
security is taken under section 76.”

The JKCrPC specifically said that a warrant may be executed by the land-holder and laid down
the procedure for it expressly. There is not such express provision in central CrPC.

Where warrant may be executed:

Under Section 82 to CrPC, A warrant of arrest may be executed at any place in Jammu an
Kashmir Sate. The Jurisdiction was therefore limited. Under the relevant section 77 of central
CrPC, A warrant of arrest may be executed at any place in India.

Proclamation for person absconding:

Section 82(4) of the Central CrPC states, Where a proclamation published under sub-section (1)
is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382,
392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code
(45 of 1860), and such person fails to appear at the specified place and time required by the
proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a
proclaimed offender and make a declaration to that effect.

This provision was missing in the JKCrPC.

Attachment of property of person absconding:

Section 82 of the central CrPC provides for mechanism of the attachment of property of
absconding person. This is detailed in one aspect under central CrPC and in another aspect under
the JKCrPC. The Central CrPC while laying procedure for attachment says, “Provided that
where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise,
that the person in relation to whom the proclamation is to be issued,— (a) is about to dispose of
the whole or any part of his property, or (b) is about to remove the whole or any part of his
property from the local jurisdiction of the Court, it may order the attachment simultaneously with
the issue of the proclamation.”

This is not found in JKCrPC

Appeal from order rejecting application for restoration of attached property:

Central CrPC under section 86 states, “Any person referred to in sub-section (3) of section 85,
who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may
46
appeal to the Court to which appeals ordinarily lie from the sentences of the first-mentioned
Court.” This Procedure for appeal is not found in JKCrPC.

Special rules regarding processes in certain cases:

Section 93-A was inserted by Act II of Samvat 2011 into JKCrPC. It dealt with those cases in
which the court situated outside JandK desired that summons to or a warrant for the arrest of, an
accused person issued by it shall be executed at any place within the local limits of the
jurisdiction of court situated in JandK, it may send such summons or warrant in duplicate, by
post or otherwise, to the presiding officer of that court of JandK to be served or executed and
Vice-versa

A Whole New CHAPTER VIIA “A Reciprocal Arrangement For Assistance In Certain

Matters And Procedure For Attachment And Forfeiture Of Property”
This New Chapter is made applicable to Jammu and Kashmir though the central CrPC. This
chapter was not there in the JKCrPC. The impact of this chapter would be interesting to see.

Security for good behaviour from persons disseminating seditious matters:

Section 108 of the Central CrPC is more detailed as compared to the relevant section of JKCrPC.
It adds the following into this section:

Section 108(1) (i) (a) any matter the publication of which is punishable under section 124A or
section 153A or section 153B or section 295A of the Indian Penal Code (45 of 1860), or

(ii) makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to hire,
distributes, publicly exhibits or in any other manner puts into circulation any obscene matter
such as is referred to in section 292 of the Indian Penal Code (45 of 1860),

Order for maintenance of wives, children and parents:

Section 125 of central CrPC elaborates this substantive right more thoroughly as compared to the
relevant section 488 of JKCrPC. It can be said that the Section 125 of central CrPC is more
complete. It provides details of interim maintenance, procedure, where the suit may be instituted
etc which were missing in section 488 of JKCrPC. For Instance section 125 says, “Provided
further that the Magistrate may, during the pendency of the proceeding regarding monthly
allowance for the maintenance under this sub-section, order such person to make a monthly
allowance for the interim maintenance of his wife or such child, father or mother, and the
expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to
such person as the Magistrate may from time to time direct: Provided also that an application for
the monthly allowance for the interim maintenance and expenses of proceeding under the second

47
proviso shall, as far as possible, be disposed of within sixty days from the date of the service of
notice of the application to such person.”

This was not found in JKCrPC.

Use of military force for dispersing unlawful assembly by Executive magistrate:

Section 129 of JKCrPC put a limit on the power of Executive Magistrate with the provio which
stated, “Provided that the sanction of the Government shall be obtained within reasonable time
for that said purpose when practicable.” This Provisio is not found in the relevant section of
central CrPC.

Public nuisances:
In cases of Public Nuisance under central CrPC, the executive magistrate has certain powers
which are not expressly mentioned in JKCrPC. Under section 139 of central CrPC, the
Magistrate has Power to direct local investigation and examination of an expert. Under section
140 of the said act, He has power to furnish written instructions, etc

Procedure for civil court after attachment of property:

The Section 146 clause (I-a) to (1-e) of JKCrPC, provides a procedure to civil courts when the
property in dispute is referred to it.

(I-a) On receipt of any such reference, the Civil Court shall peruse the evidence on record and
take such further evidence as may be produced by the parties respectively, consider the effect of
all such evidence, and after hearing the parties, decide the question of possession so referred to
it.

(I-b) The Civil Court shall, as far as may be practicable, within a period of three months from the
date of the appearance of the parties before it, conclude the inquiry and transmit its findings
together with the record of the proceeding to the Magistrate by whom the reference was made ;
and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under section
145 in conformity with the decision of the Civil Court.

(1-c) The costs, if any, consequent on a reference for the decision of the Civil Court, shall be
costs in the proceedings under this section.

(1-d) No appeal shall lie from any finding of the Civil Court given on a reference under this
section nor shall any review or revision of any such finding be allowed.

(1-e) An order under this section shall be subject to any subsequent decision of a Court of
competent jurisdiction].

This thorough and detailed procedure is missing in the Central CrPC.

48
Preventive Action Of the Police:
Section 151 of Central CrPC provides Power to police to Arrest to prevent the commission of
cognizable offences. This is also provided under the JKCrPC under section 151. However the
clause (2) of the Section 151 of Central CrPC states that, “No person arrested under sub-section
(1) shall be detained in custody for a period exceeding twenty-four hours from the time of his
arrest unless his further detention is required or authorised under any other provisions of this
Code or of any other law for the time being in force.” This Clause is not mentioned in JKCrPC.

Procedure for investigation:

The Proviso to section 157 of Central CrPC states, “Provided further that in relation to an
offence of rape, the recording of statement of the victim shall be conducted at the residence of
the victim or in the place of her choice and as far as practicable by a woman police officer in the
presence of her parents or guardian or near relatives or social worker of the locality.”

This proviso was missing in the relevant section of JKCrPC.

Examination of Witnesses by Police:

The Proviso to section 161 of Central CrPC states, “Provided that statement made under this sub-
section may also be recorded by audio-video electronic means:” It was added through
amendment (Ins. By Act 5 of 2009)

This proviso was not in JKCrPC.

Recording of confessions and statements:

Section 164 of Central CrPC has a proviso which states, “Provided that any confession or
statement made under this sub-section may also be recorded by audio-video electronic means in
the presence of the advocate of the person accused of an offence:” This proviso was not
expressly mentioned in the JKCrPC.

Section 164-A of JK-CrPC

Section 164-A was inserted by Act IX of 2007, s. 5. This section of the JKCrPC,1989 expressly
provided for Evidence of material witnesses to be recorded by Magistrate in cases where
investigation of any “offence punishable with death or imprisonment for seven years or more”
was concerned. The section clearly directed the investigating officer to produce all persons
whose statement appears to him to be material and essential for proper investigation of the case
to the nearest Judicial Magistrate for recording their statements.

However this express provision is missing in the central CrPC.

49
Investigation in a country or place outside India:
Section 166A of Central CrPC Provides procedure for Letter of request to competent authority
for investigation in a country or place outside India. Section 166B provides for procedure incase
of, Letter of request from a country or place outside India to a Court or an authority for
investigation in India. These provisions were not mentioned in JKCrPC.

Procedure when investigation cannot be completed in twenty-four hours:

Under section 167 of Central CrPC, the police remand can be given by Executive magistrate only
for upto seven days not not more than that. The JKCrPC provided power ofpolice Remand of
upto 15 days to executive magistrate.

The central CrPC expressly states, “beyond the period of fifteen days, if he is satisfied that
adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than ten years;

This Provision was missing in JKCrPC, it provided, “In case of offences punishable under
section 326A, section 326B, section 376, section 376A, section 376C, section 376D and
section 376E, the period of “fifteen days” and “sixty days” mentioned aforesaid shall be read
as “thirty days” and “ninety days” respectively”. Thus an accused could be sent even for 30
days police custody which is not such in Central CrPC.

Report of police officer on completion of investigation:

The proviso to section 173 of JKCrPC stated, “Provided that investigation into offences under
sections 152, 153-A, 295, 295-A, 296, 297, 298, 435, 436 and 505 of the State Ranbir Penal
Code shall be completed within two weeks, and if the investigation is not so completed the
investigating officer shall report the causes of the delay to the District Superintendent of Police
who shall issue necessary instructions for completion of the investigation.” This Proviso is not in
the central CrPC.

The Central CrPC under section 173 (2) (i)(h) provides, “whether the report of medical
examination of the woman has been attached where investigation relates to an offence under
section 376, 376A, 376B, 376C 2 [376D or section 376E of the Indian Penal Code (45 of 1860)”
This proviso was as such missing in JKCrPC.

Police to enquire and report on suicide, etc:

Section 174 clause (2-A) of JKCrPC provided,” Where the report relates to death of a person by
an accident, such police officer shall forthwith forward copy of the report to the Motor Accidents

50
Claims Tribunal, J&K, State Legal Aid and Advice Board and the person entitled to claim
compensation. Such report shall also state the identification marks and other particulars of the
vehicle, the name and address of the person who was using the vehicle at the time of the accident
and the particulars of the insurer against whom a claim can be made, in respect of the motor
vehicle”

Inquiry by Magistrate into cause of death:

The JKCrPC under section 176 was limited in this context as compared to section 176 of central
CrPC. The Central CrPC is more detaled with regard to Power of the magistrate to hold inquiry.

Procedure for witnesses in case of threatening:

Under Central CrPC Section 195A there is a procedure for witnesses in cases where they are
threatened. It says,”A witness or any other person may file a complaint in relation to an offence
under section 195A of the Indian Penal Code (45 of 1860).” This provision was not in JKCrPC.

Special summons in cases of petty offence:

Under the Central CrPC section 206 Magistrate taking cognizance of a petty offence, dispose it
off summarily, “Provided that the amount of the fine specified in such summons shall not exceed
one thousand rupees.”

However Under JKCrPC relevant section 205-A it was stated, “Provided that the amount of the
fine specified in such summons shall not exceed one hundred rupees”

Power to try Summarily:

Section 260 Of JKCrPC and The central CrPC both provide for the power of Magistrates to try
cases summarily. However section 260 (a) of JKCrPC calls for summary trial in “offences not
punishable with death, life imprisonment or imprisonment for a term exceeding six months”

While the central CrPC under its section 260 (i) provides for summary trial in “offences not
punishable with death, imprisonment for life or imprisonment for a term exceeding two years;”

Earlier the cases in JandK whose punishment was exceeding 6 months, they could not be tried
summarily, unless where special procedure was provided in special statutes.

However now those cases in which offences having punishment of less than 2 years can be tried
summarily.

51
 Conclusion:
The state legislature of Erst-while state of Jammu and Kashmir was the most powerful of all in
the union of states of India. As such it was supposed to have brought laws, made amendments
and been proactive with respect to its power. This would have created a system, a network as
such. The Amendment of Article 370 of Indian Constitution would never have been a walk in the
park for any Government, no matter if it had the absolutist majority in both the houses of
parliament. The government would have had to decide for not only to amend an article but to
break and change a system and replace it with another which is equally effective if not more. No
government would have done that.

Unfortunately Only If the state legislature had utilized its powers, made laws and thereby created
a system.

52

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