NATIONAL INVESTIGATION AGENCY NEW DELHI [APPELLANT(S)] Vs. OWAIS AMIN @ CHERRY & ORS. [ RESPONDENT(S)]
CRIMINAL APPEAL NO. 2668 OF 2024
(2JB, M. M. SUNDRESH and S. V. N. BHATTI, delivered by M. M. Sundresh, J.)
Facts: Challenge in this appeal is to the judgment rendered by the Division Bench of the High Court of Jammu & Kashmir at Jammu in Criminal Appeal (D) No.11/2020 dated 27.04.2021 by which the judgment rendered by the Special Judge, National Investigation Agency (NIA) (3rd Additional Sessions Judge) Jammu, has been confirmed in part, while remitting the issue pertaining to the charges framed under Sections 306 and 411 of the Jammu and Kashmir State Ranbir Penal Code SVT., 1989 (hereinafter referred to as “RPC, 1989”) along with Section 39 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “UAPA, 1967”) for taking cognizance afresh.
Issue: Whether CrPC would apply retrospectively to Jammu & Kashmir or from the Day of Abrogation of Article 370 on October 31, 2019?
Arguments on behalf of counsel for appellant:
Mr. S.V. Raju, learned ASG appearing for the appellant submitted that as the Act, 2019 had come into force, the impugned judgment is liable to be set aside.
Arguments on behalf of counsel for respondent:
Per contra, Mr. D. Mahesh Babu, learned counsel appearing for the respondents, by placing reliance upon the written arguments submitted that the impugned judgment correctly dealt with the legal position which was prevailing at the relevant time. When the complaint was conveyed, the CrPC, 1989 was in force. The repealing took place thereafter. The retrospective application of a procedural law is fairly well settled, and the procedure cannot be made retrospectively applicable. Even the Act, 2019 does not specifically state that the CrPC, 1973 will apply retrospectively. On a conjoint reading of Section 103 of the Act, 2019, along with the Order, 2019, with particular reference to Para 2(13)(d), it is abundantly clear that the CrPC, 1989 ought to have been applied, as there was no dispute with respect to the non-compliance, which was duly recorded by the Court. Therefore, the impugned judgment will have to be sustained.
Held: The court allowed the present appeal and held that, “On facts, it is an omission caused by the appellant which needs to be rectified. It being a curable defect, would not enure to the benefit of the respondents, particularly when they are yet to be charged in the absence of such sanction or empowerment. At this stage, it is pertinent to reiterate that the complaint was conveyed by the District Magistrate, Ramban to the Special Judge, NIA on 20.09.2019. Further, the investigation stood completed with the filing of the chargesheet on 25.09.2019. Whereas, the appointed day for the Act, 2019 was 31.10.2019. Hence, on the day when the investigation stood completed, the CrPC, 1989 was in force within the Union Territory of Jammu & Kashmir.”
