Summary
The post-reorganisation application of the central CrPC did not retrospectively cure failure to obtain the authorisation required for a pre-reorganisation conspiracy complaint under the Jammu and Kashmir Code. The requirement was mandatory but the omission could still be rectified. The NIA was given liberty to obtain proper authorisation or empowerment, after which the trial court could consider cognizance of the conspiracy offence afresh.
Issues
- Whether the central CrPC retrospectively displaced an unmet authorisation requirement under the earlier Jammu and Kashmir Code.
- Whether the omission could be cured after repeal.
- What distinction existed between complaints under Sections 196 and 196-A of the earlier Code.
Provisions considered
- Sections 196 and 196-A(1), Code of Criminal Procedure, Samvat 1989 (Jammu and Kashmir)A District Magistrate could complain independently under Section 196, but Section 196-A required a Government order/authority or an officer empowered by Government. Compliance regarding the competent complainant was mandatory. (¶¶ 13, 14, 15, 16, 17, 30, 32)
- Sections 95 and 103; Fifth Schedule, Tables 1 and 3, Jammu and Kashmir Reorganisation Act, 2019The central CrPC applied and the former Code was repealed from 31 October 2019. Neither the Act nor the removal-of-difficulties provisions retrospectively erased non-compliance occurring before that date. (¶¶ 18, 19, 20, 21, 22, 23, 30, 31, 33, 34)
- Paragraph 2(13), Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019The savings preserved relevant proceedings and permitted rectification of the earlier procedural omission under the former Code. Mandatory authorisation could be obtained later; this was not a case of refusal of approval. (¶¶ 21, 24, 25, 26, 31, 32, 34, 35)
Held
- A complaint under the earlier Code needed no prescribed form and could be oral or written. But the identity and authority of its maker remained essential. Unlike Section 196, Section 196-A did not permit a District Magistrate to complain independently without the requisite Government authorisation or empowerment. (¶¶ 13, 14, 15, 16, 17)
- The investigation and complaint here preceded 31 October 2019. Applying the central CrPC thereafter did not retrospectively cure the earlier failure to satisfy Section 196-A. The requirement could not simply be ignored on the ground that the former Code had since been repealed. (¶¶ 19, 20, 30, 31, 33, 34)
- The savings in paragraph 2(13) allowed the agency to rectify the omission. Authorisation was mandatory, but the defect was curable where the authority had not exercised the power rather than refused approval, particularly before cognizance and charges on that offence. The agency was not barred from obtaining the necessary authority under the saved provisions. (¶¶ 24, 25, 26, 27, 31, 32, 34)
- The remaining cognizance issues had already been addressed after the High Court’s remand and the trial had advanced, so the Court did not revisit them. The live issue concerned only Section 120-B RPC and Section 196-A compliance. (¶¶ 11, 12)
- The impugned judgment was set aside insofar as it affirmed refusal of cognizance for Section 120-B RPC. The NIA received liberty to obtain appropriate authorisation or empowerment. Upon compliance the trial court must consider cognizance and proceed according to law; the Supreme Court did not itself dispense with the requirement or take cognizance. (¶¶ 35, 36)
Result
Appeal partly allowed. Refusal-of-cognizance ruling for Section 120-B RPC set aside to permit NIA to obtain the mandatory Section 196-A authorisation or empowerment; trial court then to consider cognizance and proceed lawfully.