CrPC Not Retrospectively Applicable To J&K Before 31.10.2019; Prior Proceedings Should Comply With Old Law : Supreme Court

The Supreme Court has held that the Code of Criminal Procedure, 1973(CrPC) will apply to Jammu and Kashmir only with effect from 31.10.2019, the date when the Jammu and Kashmir Reorganization Act 2019 came into effect following the abrogation of the special status of J&K under Article 370 of the Constitution.

The Court clarified that the CrPC will not have retrospective application to J&K prior to 31.10.2019 and hence all the proceedings and investigation which were initiated before such date will have to be as per the J&K CrPC 1989.

"A perusal of Table 1 and Table 3 of the Fifth Schedule would clearly show that CrPC, 1973 would govern the field only from the appointed day and consequently the CrPC, 1989 stands repealed. To reiterate, it would come into effect only from the appointed day, and therefore has got no retrospective application. To make this position clear, the CrPC, 1973 shall be pressed into service from 31.10.2019 onwards, and thus certainly not before the appointed day," a bench comprising Justices MM Sundresh and SVN Bhatti observed.

The Court rejected the argument of the National Investigation Agency (NIA) that the procedure under the J&K CrPC need not be followed for the cases initiated. prior to 31.10.2019. In the instant case, the Court was dealing with the issue whether sanction as per the J&K CrPC 1989 was required for taking cognizance of the offence of criminal conspiracy as per the Ranbir Penal Code.

"We have no difficulty in holding that while an investigation could continue after its initiation under the CrPC, 1989, by way of the application of the CrPC, 1973, it cannot be stated that even for a case where there was a clear non-compliance of the former, it can be ignored by the application of the latte,"

The Court added :

"If we were to hold that even by way of a prospective application, notwithstanding the non-compliance under the CrPC, 1989, the appellant shall be permitted to prosecute the respondents, we would only be applying CrPC, 1973 retrospectively, which as discussed is not permissible."

Background facts

In this case, the NIA registered the offence on 15.04.2019 and a chargesheet was filed on 25.09.2019.

After the abrogation of the special status of Jammu and Kashmir under Article 370 of the constitution, the existing Code of Criminal Procedure, 1973 was made applicable to the State of Jammu & Kashmir. The old law i.e., CrPC, 1989 was repealed.

Section 196A of J&K CrPC, 1989 prescribes a requirement for taking prior sanction to prosecute the accused for committing an offence of criminal conspiracy under the Ranbir Penal Code. However, no such requirement was mentioned in the 1973 Cr.P.C. The trial court and the High Court held that the sanction under the S.196A of CrPC 1989 was necessary. Challenging that finding, the NIA approached the Supreme Court.

Not taking sanction a curable defect, holds Supreme Court

While the Supreme Court held that the CrPC 1989 was applicable in respect of the offence, it stated that the failure to obtain sanction was a curable defection.

“It is to be noted, that a mere non-compliance of an earlier procedure mentioned in the repealed Code by itself would not enure to the benefit of an accused, the procedure being a curable one, depending upon the facts and circumstances of the case.”, the bench comprising Justices MM Sundresh and SVN Bhatti said.

Therefore, the investigating agency is not debarred from proceeding further after complying with the omission committed earlier, by taking recourse to the repealed Code, the Court clarified.

Recording the error to be curable, the Court permitted the NIA to prosecute the accused, by taking appropriate sanction as per the repealed provision.

"Accordingly, we give liberty to the appellant to comply with the mandate of Section 196-A of the CrPC, 1989, by seeking appropriate authorization or empowerment as the case may be. Needless to state, if such a compliance is duly made, then the Trial Court shall undertake the exercise of taking cognizance, and proceed further with the trial in accordance with law.”, the court observed.

Counsels For Petitioner(s) Mr. Surya Prakash V Raju, A.S.G. Mrs. Swati Ghirdiyal, Adv. Mr. Udai Khanna, Adv. Mrs. Sairica S Raju, Adv. Mr. Raghav Sharma, Adv. Mr. Ashutosh Ghade, Adv. Mr. Arvind Kumar Sharma, AOR

Counsels For Respondent(s) Mr. Muzaffar Iqbal Khan, Adv. Mr. D. Mahesh Babu, AOR Mr. Shishir Pinaki, Adv. Mr. Dhanaeswar Gudapalli, Adv. Mr. Manoj Kumar, Adv. Ms. Mallika Das, Adv. Mr. Amber Jain, Adv. Mr. Devjee Mishra, Adv.

Case Title: NATIONAL INVESTIGATION AGENCY NEW DELHI VERSUS OWAIS AMIN @ CHERRY & ORS.

Citation : 2024 LiveLaw (SC) 389

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