Illness Certificate No Bar to Criminal Appeal Proceedings When Counsel Is On Record, Says J&K High Court
The Jammu & Kashmir High Court dismissed a petition challenging the refusal to defer a criminal conviction appeal, holding that an appellant convicted under Section 138 of the Negotiable Instruments Act need not personally appear when an advocate is on record to argue the matter.
Justice Rahul Bharti, sitting singly at the Srinagar Bench of the High Court of Jammu & Kashmir and Ladakh, dismissed at the inception stage a miscellaneous petition filed by Hakeem Zaffar Ahmad challenging the refusal of the Court of the Additional Sessions Judge, Srinagar to defer the hearing of his criminal conviction appeal. The petitioner, convicted on 10 September 2025 by the Court of Judicial Magistrate 1st Class (City Judge), Srinagar for an offence under Section 138 of the Negotiable Instruments Act, 1881 in connection with dishonoured cheques totalling Rs. 40 lacs, sought deferment on the ground that he was suffering from Adjustment Disorder with Depressed Mood. The High Court found no illegality in the Sessions Court's order dated 30 June 2026 declining that plea, and noted that an advocate was already on record to represent the petitioner in the appeal.
The Dispute Before the High Court
After his conviction on 10 September 2025, Hakeem Zaffar Ahmad filed a criminal appeal before the Court of Additional Sessions Judge, Srinagar. In those appeal proceedings, he sought deferment of the hearing, presenting himself as a psychiatric patient. The Additional Sessions Judge declined the deferment plea by order dated 30 June 2026.
The petitioner then approached the High Court by way of a criminal miscellaneous petition registered as CM(M) 353/2026, with associated applications CM 5285/2026 and CM 5286/2026. Ms. Asma Rashid, Advocate, appeared for the petitioner. Mr. Asif Ahmad Bhat, Advocate, appeared for the respondent Rattan Singh.
By an earlier order dated 12 August 2026, the High Court had directed the petitioner's counsel to produce a medical certificate certifying the exact mental condition of the petitioner to the extent that it disabled him from attending to all affairs of life, including legal affairs. That step had not been taken by 19 August 2026.
The Psychiatric Certificate Pressed Before the High Court
Ms. Asma Rashid submitted that procuring a fresh medical certificate would take not less than one month. Instead of waiting for such a certificate, she sought to rely on Medical Certificate No. PSY/MB/CERT/2026/180 dated 02 April 2026, issued by the Medical Superintendent, Government Psychiatric Diseases Hospital, Kahtidarawaza, Rainawari, Srinagar. That certificate, captioned “Illness Certificate”, stated that the petitioner was a case of Adjustment Disorder with Depressed Mood.
The Court observed that it had been willing to accommodate the petitioner if a certificate certifying a degree of disability that prevented him from attending to all affairs of life was produced. The April 2026 certificate fell short of that standard. It recorded a diagnosis but did not certify the kind of comprehensive incapacity the High Court had invited the petitioner to demonstrate.
Why Personal Appearance Is Not Required in a Criminal Appeal
Justice Bharti identified what he considered the central legal flaw in the petitioner's position: an appeal is not a proceeding in which an appellant is required to appear and argue in person. The petitioner was, on the court's own finding, already represented in the appeal before the Additional Sessions Judge by Advocate Mr. Mehboob Sofi. There was accordingly no disability preventing the appeal from being heard and argued on his behalf.
The court's reasoning was direct: because the petitioner had counsel on record in the appellate proceedings, the psychiatric condition — whether or not it genuinely impaired the petitioner's personal ability to participate — could not justify halting the appeal. The petitioner's trust in the appellate court's judgment was to be exercised through his advocate, not by his personal presence.
The court further noted that it could not rule out that the petitioner's depressed mood was connected to the fact of his conviction itself, given that the underlying offence related to dishonoured cheques of Rs. 40 lacs under Section 138 of the Negotiable Instruments Act, 1881.
No Illegality in the Sessions Court's Order
Having examined the position, Justice Bharti held that the Court of the Additional Sessions Judge, Srinagar had committed no illegality in rejecting the petitioner's deferment plea. The High Court declined to interfere with the order dated 30 June 2026.
The observation about the possible link between the petitioner's depressed mood and his conviction, while not a determinative holding, reflected the court's scepticism about the bona fides of the deferment application. The court did not make any finding on the merits of the conviction or the pendency of the criminal appeal before the Sessions Court; those remain to be decided.
Outcome
The petition CM(M) 353/2026 was dismissed at its inception stage by order dated 19 August 2026. The criminal conviction appeal before the Court of Additional Sessions Judge, Srinagar remains pending and is to proceed with Advocate Mehboob Sofi representing the petitioner.