CrPC would apply to Jammu & Kashmir only from the Day of Abrogation of Article 370 on October 31, 2019, and has no retrospective application: Supreme Court
The Supreme Court (SC) bench while hearing the National Investigation Agency New Delhi vs. Owais Amin @ Cherry & Ors. case on May 17, 2024, held that CrPC would apply to Jammu & Kashmir only from the day of abrogation of Article 370 on October 31, 2019, and not before that. The bench constituting Justice MM Sundresh and Justice SVN Bhatti observed “CrPC, 1973 would govern the field only from the appointed day and consequently the CrPC, 1989 stands repealed.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.” During the proceedings, Learned Additional Solicitor General Mr. SV Raju and Leaned Counsel Mr. D. Mahesh Babu appeared for the appellant and the respondents respectively.
In this case, the respondent was charged under Sections 307, 120-B, 121, 121-A, and 124-A of RPC (Ranbir Penal Code), 1989, Sections 4 and 5 of the Explosive Substances Act, 1908, and Sections 15, 16, 18, and 20 of the UAPA, 1967 by the jurisdictional police for making an attempt to ambush and ram the convoy of Central Reserve Police Force (CRPF) personnel by a Santro car laden with explosives. Before their attempt could succeed, a blast occurred resulting in the respondents fleeing from the place of occurrence. Special Judge, NIA (National Investigation Agency) held that the complaint, as conveyed by the District Magistrate, was not in the prescribed form, and therefore does not satisfy the mandate as contemplated under Section 4(1)(e) of CrPC, 1989.
Furthermore, cognizance was also not taken for the offence committed under Section 120-B of RPC, 1989 because neither was there any authorization nor was there any empowerment as required under Section 196-A of CrPC, 1989. The Division Bench of the High Court of Jammu and Kashmir was pleased to hold that the Special Judge, NIA was wrong on two counts, and there is no question of undertaking any mandatory preliminary investigation. Incidentally, for the remaining offences, the HC remitted the case to the Special Judge, NIA. The Special Judge, NIA took cognizance of the offences punishable under RPC, 1989, and UAPA. The matter was therefore mentioned before the top court.
The SC bench observed “CrPC, 1989 stood repealed with effect from 31.10.2019 (i.e. the appointed day). On the very same day, the Act, 2019 came into existence…There is nothing to infer either from the Act, 2019 or the Order, 2019 that CrPC, 1973 will have a retrospective application. However, the Order, 2019 did take into consideration all the difficulties that might arise by facilitating the continuance thereunder.” It added, “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 latter.”
The top court concluded “We are inclined to set aside the impugned judgment insofar as it confirms the judgment of the Special Judge, NIA, in not taking cognizance for the offence punishable under Section 120-B of the RPC, 1989. 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.”
