he Jammu and Kashmir High Court Tuesday observed that the guidelines laid by the Supreme Court, regarding the stay against proceedings of a civil or criminal trial do not extend to the orders passed in exercise of original jurisdiction under Articles 226 and 227 of the Constitution.
The HC was hearing a contempt petition regarding the implementation of its order, where the counsel for the petitioner pleaded that the Supreme Court has issued the directions regarding the proceedings arising out of civil/ criminal trials relating to some investigation by the CBI and that the Apex Court has not issued any general direction in terms whereof a stay order passed by the High Court while exercising extra-ordinary Writ jurisdiction will automatically come to an end on expiry of six months.
The Counsel for the Writ petitioner mentioned the Circular of J&K Govt issued while referring to directions passed by the Supreme Court in ‘Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central Bureau of Investigation’: decided on 28th of March, 2018; and ‘M.A. No.1577 of 2020 in Cri. Appeal Nos. 1375-1376 of 2013’: decided on 15th of October, 2020’, where in it has directed all the Administrative Secretaries/ HODs to take note of the aforesaid directions passed by the Hon’ble Supreme Court and review all administrative actions/ procedures held up on account of interim Court orders with a further stipulation that in case the orders are more than six months old, treat the same as expired and proceed accordingly.
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After hearing the Counsel for the petitioner, Justice Ali Mohammad Magrey of J&K High Court said that “After hearing the learned Senior Counsel representing the petitioners, and upon a conjoint reading of the circular dated 25th of November, 2020 issued by the Secretary to Government, Department of Law, Justice and Parliamentary Affairs; communication dated 1st of December, 2020, issued by Director Colleges, Higher Education Department; and the directions passed by the Apex Court of the country in the above referred two cases, the Court is, prima facie, satisfied that both the Law Secretary as well as the Director Colleges have not only overreached their authority, but their actions, besides being contemptuous in nature, also smack of undermining the dignity of the Court in the eyes of general public. This is so because the Hon’ble Supreme Court, in the aforesaid case, seemingly, has laid down guidelines with regard to pending cases where stay against CCP(S) No.395/2020 proceedings of a civil or criminal trial is operating and not relating to all stay orders, passed in exercise of original jurisdiction under Articles 226 and 227 of the Constitution, as interpreted by the Law Secretary in the circular dated 25th of November, 2020.”
“ Before proceeding further in the matter, the Court deems it just and proper to seek response from the respondents in the contempt petition as well as from the Secretary to Government, Department of Law, Justice and Parliamentary Affairs. In view of above, let notice for filing the Statement of Facts go to the respondents, returnable by or before the next date of hearing. Besides, the Secretary to Government, Department of Law, Justice and Parliamentary Affairs shall also file his response to the Contempt petition in light of observations made by the Court hereinabove,” the Court directed.
The Court further orders that “Meanwhile, the operation of Circular No. 07-JK(LD) of 2020 dated 25th of November, 2020 and communication No. DC-JE/Circular/2020 dated 1st of December, 2020 shall stay qua the case of the petitioners herein. Further, the Director Colleges, Higher Education Department, Government of Jammu and Kashmir, besides filing the Statement of Facts, shall also remain personally present before the Court on the next date of hearing to explain his position.”