The Court found that the petitioner had incorporated additional sentences in a medical certificate to justify his unauthorized absence from service for nearly seven years, and directed the Registrar Judicial, Srinagar, to file a criminal complaint against him for offences under Sections 336 and 340 of the Bharatiya Nyaya Sanhita, 2023.

The Court was hearing a writ petition filed by a former employee of the J&K State Road Transport Corporation challenging the treatment of his absence period from 21.10.2011 till his joining duties as 'dies non'. The petitioner had been terminated from service in 2006, reinstated by the High Court in 2017, and after an enquiry, his absence period was treated as 'dies non' by the Corporation.

A Bench of Justice Sanjay Dhar, while dismissing the petition, observed,

"Once it has been found that the petitioner has produced a forged certificate before this Court, it would not be permissible for this Court to exercise its discretionary writ jurisdiction under Article 226 of the Constitution in favour of petitioner."

Background

The petitioner was appointed as a Conductor with the J&K State Road Transport Corporation and then terminated in 2006. The petitioner challenged his termination before the Court contending that no enquiry had been conducted and that his absence was occasioned on account of serious ailment. The writ petition was allowed, quashing the termination order and directing reinstatement.

The Court directed that payment of consequential benefits for the period from November 2004 till the decision of the writ petition would depend on the enquiry to be conducted by the respondents.

Pursuant to the directions, the petitioner was reinstated and an enquiry was held. Vide an Order the period of absence from 01.11.2004 till 20.10.2011 was treated as leave of whatever kind due, whereas the period from 21.10.2011 till date of joining was treated as 'dies non'.

The petitioner challenged this order, contending that no enquiry was held and that the treatment of the period as 'dies non' amounted to punishment. The petitioner relied upon a medical certificate issued by the Government Psychiatric Disease Hospital, Srinagar, to show that he was under treatment from 01.11.2004 to 20.10.2011.

The respondent-Corporation challenged the genuineness of the certificate, stating that it had come to their notice that the certificate was forged, which was verified by the hospital. The Court then directed the Deputy Director, Health Services, Kashmir, and Medical Superintendent, Government Psychiatric Diseases Hospital, Srinagar, to file a detailed report regarding the authenticity of the certificate.

Court's Observation:

The Court examined the compliance report filed by the authorities and found that the certificate produced by the petitioner was forged. The Medical Superintendent, Government Psychiatric Diseases Hospital, Srinagar, in his communication admitted that a medical certificate was issued to the petitioner in May 2016. However, the certificate actually issued did not contain the last two sentences that appeared in the certificate annexed as Annexure-D to the writ petition.

The Court observed,

"There is a marked difference between the two certificates, inasmuch as the certificate dated 24.05.2016, which the Medical Superintendent has reproduced in his letter dated 07.10.2023, the last two sentences... which are part of the Medical Certificate annexed as Annexure-D to the writ petition do not find mention."

The Court noted that the certificate issued by the hospital did not mention that the patient was under treatment since 01.11.2004 to 20.10.2011 on OPD basis, nor did it mention that an attested passport size photograph was appended. The Court observed,

"These two sentences, it seems, have been incorporated by the petitioner by preparing another certificate with more or less same language as is mentioned in the actual certificate... It appears that the petitioner, in order to justify his absence from duty from 01.11.2004 to 20.10.2011, has incorporated these sentences in the certificate, which does not find mention in the certificate actually issued."

The Court also noted that the signatories had declared the certificate as not genuine. While it may be correct that the petitioner had been a patient undergoing treatment, he had produced a forged certificate to explain his unauthorized absence.

The Court applied the settled legal position that fraudulent documents cannot form the basis for exercise of discretionary writ jurisdiction. The Court relied upon Prestige Lights Ltd v. SBI (2007) 8 SCC 449, wherein the Supreme Court held that a person invoking the High Court's jurisdiction under Article 226 is duty-bound to place all facts without reservation, and if there is suppression of material facts or twisted facts, the High Court would be justified in refusing to entertain the petition.

Accordingly, the Court dismissed the writ petition and directed the prosecution of the petitioner for having used a forged document to support his claim before the Court.

"While dismissing the writ petition, the petitioner cannot be allowed to go scot-free. There is material on record to prima facie disclose commission of forgery and allied offences. Section 336 of BNS makes an offence of forgery punishable... Section 340 of BNS makes the act of using as genuine any document which he knows or has reason to believe to be a forged document, punishable. Both these offences, prima facie, seem to have been committed by the petitioner, as such, he deserves to be prosecuted in accordance with law.", the court remarked.

The Court directed the Registrar Judicial, Srinagar, to file a complaint against the petitioner before the Court of Chief Judicial Magistrate, Srinagar, for his prosecution in accordance with law.

Case Title: Bashir Ahmad Ganai v. State of J&K and Ors.

Citation: 2026 LiveLaw (JKL) 326

Appearances

Petitioner: Mr. I. Sofi, Advocate

Respondents: Mr. Shakir Haqani, Advocate

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The Court held that the evidence on record, including the statement of the prosecutrix, medical evidence and DNA examination, sufficiently connected the appellant with the commission of the offence punishable under Section 376 RPC. It observed that the conviction recorded by the Trial Court was based on appreciation of the evidence led during trial.

The Court was hearing an appeal against the judgment of conviction and order of sentence passed by the Principal Sessions Judge, Reasi, whereby the appellant was convicted under Section 376 RPC and sentenced to rigorous imprisonment for ten years along with fine.

A Single Bench of Justice M.A. Chowdhary observed,

“it is a case, where a godman/guru/swami, revered by the inhabitants of the village, that too in his advanced age, had sexually ravished a girl of a tender age suffering from the deformity of being a dwarf and there being sufficient and credible evidence in the form of ocular as well as documentary and expert evidence, it can safely be held on the basis of prosecution evidence that the appellant/convict had committed the offence punishable under Section 376 RPC upon the prosecutrix.”

The appellant had argued that the prosecution evidence suffered from contradictions, exaggerations and improvements. It was contended that there was delay in lodging the FIR, doubts regarding the age of the prosecutrix, and that the DNA evidence had not been properly established. The appellant sought setting aside of the conviction and acquittal.

The State opposed the appeal and submitted that the appellant had sexually assaulted a minor girl who had been adopted as a guru by the family. It was argued that the statement of the prosecutrix was supported by other evidence, including DNA evidence, which established the connection of the appellant with the offence.

Background:

The prosecution case, as recorded by the Court, was that Brahmanand Saraswati, who used to reside in the house of a local resident, was adopted as a guru by the prosecutrix and her family. The prosecutrix used to provide milk and food to him. According to the prosecution, when she went to provide milk and food, the appellant found her alone and committed rape upon her and thereafter repeated the acts.

The prosecution alleged that the appellant threatened the prosecutrix with consequences if she disclosed the incident to anyone. Subsequently, she became pregnant and later disclosed the incident to her parents, following which she delivered a dead female child.

On the basis of the allegations, FIR was registered at Police Station Reasi under Section 376 RPC and Section 4 of the POCSO Act. During investigation, the prosecutrix was medically examined, statements were recorded, the age of the prosecutrix was verified from school records and DNA examination of the appellant and the dead child was conducted.

The Trial Court convicted the appellant under Section 376 RPC and sentenced him to ten years rigorous imprisonment along with fine. The appellant thereafter approached the High Court challenging the conviction.

Court's Observation:

While examining the challenge to conviction, the High Court considered the testimony of the prosecutrix. The Court noted that she had stated that the appellant was known to her, that the people of the locality including her parents had accepted him as their guru, and that she used to go to provide milk and food to him. She stated that after being offered tea, she became unconscious and the appellant committed rape upon her.

The Court found that during cross-examination, nothing tangible could be brought out to demolish the version of the prosecutrix regarding the commission of rape. It observed that the surrounding circumstances and supporting evidence were sufficient to rely upon her testimony.

The Court also considered the evidence of the mother and other witnesses regarding the disclosure of the incident, the relationship of the appellant with the family and the subsequent events following the pregnancy of the prosecutrix.

While dealing with the delay in lodging the FIR, the Court held that the delay could be understood in the circumstances of the case, considering the age of the prosecutrix, her vulnerability and the influence of the appellant as a godman in the locality. The Court observed,

“...when the prosecutrix was a minor child of less than 17 years and was also suffering a deformity of being a dwarf as against the appellant/convict, who was a godman in the locality, who has a considerable influence in the society and having been threatened by him, the delay in lodging the FIR can be understandable and does not seem to be fatal for the prosecution case.”

The Court rejected the challenge to the DNA evidence and noted that the forensic expert had proved the report. It observed that the DNA of the dead baby delivered by the prosecutrix and the accused matched and the expert had confirmed that the appellant was the biological father of the child.

The Court further held that the requirement of the prosecutrix's testimony being of “sterling quality” arises where there is no supporting evidence. In the present case, the Court noted the existence of medical and DNA evidence along with other prosecution material. It observed,

“In view of there being a conclusive medical and DNA tests and the other evidence led by the prosecution with regard to the presence of the convict and the visiting of the prosecutrix to him for providing milk and food, the statement of the prosecutrix even if not of sterling quality has to be relied upon.”

On the question of sentence, the Court noted that the Trial Court had awarded ten years rigorous imprisonment and fine. It held that considering the repeated acts of rape, the appellant was liable under clause (n) of sub-section (2) of Section 376 RPC. However, since the State had not challenged the sentence, the Court maintained the sentence awarded by the Trial Court.

The High Court thus dismissed the appeal against his conviction under Section 376 RPC and upheld the judgment of conviction passed by the Trial Court. The sentence of ten years rigorous imprisonment along with fine was maintained.

Case Title: Brahmanand Saraswati v. State (UT of J&K) & Anr.

Citation: 2026 LiveLaw (JKL) 326

Appearances

Appellant: Vasudha Sharma, Advocate

Respondents: Sumeet Bhatia, GA

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The Court directed the respondents to produce the entire file relating to the petitioner's passport application and ordered the Regional Passport Officer, Srinagar, to remain present in person before the Court to answer its queries, observing that the writ petition could possibly be disposed of without adjudication on merits.

The Court was hearing a writ petition filed by Andrabi, who approached the Court aggrieved by non-issuance of an Indian passport despite completion of formalities from his end. The petition challenged the communication issued by the Regional Passport Officer, Srinagar, requiring him to submit an explanation along with supporting documents within thirty days, failing which his passport file was liable to be closed without further notice.

A Single Bench of Justice Rahul Bharti observed,

“...A citizen of India is presumed to be innocent unless proved guilty in accordance with law and, therefore, cannot reasonably be expected to furnish an effective explanation w.r.t. his credentials and antecedents without being apprised of the material sought to be relied upon against him.”

Andrabi approached the High Court contending that after applying for an Indian passport and completing the required formalities, the passport had not been issued. His grievance was that he was asked by the Regional Passport Officer, Srinagar, to explain his position with respect to certain adverse police verification reports. However, according to him, he was not provided the contents of those reports and was consequently unable to understand the material requiring an explanation from him.

The communication issued by the Regional Passport Officer required him to submit an explanation along with relevant supporting documents within thirty days, failing which his passport application file was liable to be closed without further notice.

The Court examined whether the opportunity granted to the petitioner to explain his position satisfied the requirements of a fair administrative process. The Court noted that the petitioner was required to respond to adverse police verification reports but was not made aware of the contents of those reports. It observed that without knowledge of the material relied upon, an effective explanation could not reasonably be expected from the petitioner.

The Court further observed that the communication issued by the Regional Passport Officer did not reserve any opportunity for disclosure of the contents of the adverse reports when the petitioner attended the office within the stipulated period. The Court stated that the petitioner was not given an opportunity to respond to the material sought to be relied upon against him.

The Court held that the impugned communication prima facie did not meet the essence of a fair administrative course of action. It observed,

“The impugned communication, therefore, prima facie fails to meet the very essence of a fair administrative course of action or decision under the rule of law which governs this country. The rule of law is, in other words, the rule of reason, which this Court does not prima facie find reflected in the impugned communication.”

During the hearing, the respondents submitted that if the Court directed the petitioner to appear before the Regional Passport Officer for submission of explanation after disclosure of information, the passport file might already have been closed and may not be available for revival.

The Court observed that such a situation could not prevent consideration of the petitioner's application in accordance with law. It noted that even if the writ petition was ultimately allowed on merits, the same application would necessarily have to be revived and considered afresh. The Court thereafter directed the respondents to come forward with instructions and specifically directed the DSGI to bring the entire file relating to the petitioner's passport application.

The Regional Passport Officer, Srinagar, was also directed to remain personally present before the Court to answer queries, as the Court found a possibility of disposal of the writ petition without adjudication on merits. The matter was listed on 21.08.2026 for further consideration.

Case Title: Naeem Akhter Andrabi v. Union of India & Ors.

Appearances

Petitioner: Senior Advocate Altaf Haqani; Advocate Muneeba

Respondents: DSGI T. M. Shamsi; Advocate Faizan Ahmad Ganaie; Advocate Bisma Ali

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