Ghulam Mohammad Khan vs Abdul Qayoom Karimi
2021 Latest Caselaw 1334 j&K/2

                                                                       Serial No. 21
                                                                       Regular List

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR
                                                                CM(M) No. 39/2021
                                                                 CM No. 1281/2021
Ghulam Mohammad Khan.
                                                                   ..... Petitioner(s)
                                  Through: -
                            Mr Aqib Aijaz, Advocate.

                                         V/s
Abdul Qayoom Karimi.
                                                                 ..... Respondent(s)
                                 Through: -
                        Mr Sheikh Manzoor, Advocate.
                       Mr Faheem Nisar Shah, Advocate.
CORAM:
              Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
                                      ORDER

27.10.2021

The instant petition is filed under Article 227 of the Constitution of India,

challenging the orders dated 12th February 2019 and 3rd May 2019 passed by the

learned Additional District and Session Judge Baramulla, on the grounds detailed

out in the petition.

Learned counsel appearing on behalf of respondent have objected to the

maintainability of the writ petition on the ground that the order which is offshoot

of order passed on 23rd February 2019, passed by the appellate court, was

challenged in CRMC No. 55/2019 and this Court in terms order passed on 28 th

March 2019 while registering the arguments of the parties, dismissed the same.

In essence, it is submitted that the writ petition is not maintainable for the reliefs

claimed after dismissal of the petition bearing CRMC No. 55/2019.

When asked learned counsel for the petitioner submits that the order

passed by the appellate court is beyond the scope of jurisdiction as no fine can

be imposed subject to decision in the conviction appeal. It is submitted that the

orders impugned are beyond jurisdiction and against the law. In support of his

arguments, learned counsel for the petitioner has referred to relied upon the

judgments delivered in case titled Shri Ishar Ally Steels Lt vs Jayaswals NECO Limited; and Surinder Singh Deswal vs Virender Gandhi reported in AIR 2020

Supreme Court 415.

Heard learned counsel for the parties, perused the records considered the

matter and.

Perusal of the proceedings reveals that when this matter was taken up for

consideration on 21st May 2019, the Court while issuing notice, had stayed the

impugned orders, resulting in revival of the order of the appellate court in

suspending the sentence and grant of bail. The Court has also called the records

of the trail court as also the appellate court, which has delayed the decision in the

appeal.

Without going to the merits of the case and in the interest of justice, it

shall be advantageous to dispose of this petition by directing the appellate court

to decide the appeal with due dispatch and not later than three months, as the

parties have only to argue the matter.

In the above background, this writ petition is disposed of with direction to

the appellate court i.e. Additional Sessions Judge, Baramulla to take up the

conviction appeal for hearing and conclude the same with due dispatch and not

later than three months from today. During the pendency of the appeal, sentence

shall remain under suspension and the petitioner shall remain on bail in terms of

order passed on 29th January 2019.

Disposed of as above.

Registry shall send copy of this order alongwith records to the appellate

court.

(Ali Mohammad Magrey) Judge SRINAGAR:

27.10.2021 "Hamid"

ABDUL HAMID BHAT 2021.10.28 10:04 I attest to the accuracy and integrity of this document