LexNATIONAL INVESTIGATION AGENCY NEW DELHI versus OWAIS AMIN @ CHERRY & ORS.
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* Author [2024] 5 S.C.R. 1056 : 2024 INSC 447 National Investigation Agency New Delhi v. Owais Amin @ Cherry & Ors. (Criminal Appeal No. 2668 of 2024) 17 May 2024 [M.M. Sundresh* and S.V.N. Bhatti, JJ.] Issue for Consideration Applicability of Section 196-A of Code of Criminal Procedure SVT., 1989 vis-à-vis the provisions and mandate contained in the Code of Criminal Procedure, 1973. Headnotes† Jammu & Kashmir Reorganisation Act, 2019 – s.103 – Code of Criminal Procedure SVT., 1989 – ss.4(1)(e), 196-A – Jammu and Kashmir State Ranbir Penal Code SVT., 1989 – s.120-B – Code of Criminal Procedure, 1973 – Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019 – Para 2(13) – Proceedings initiated under CrPC, 1989, non-compliance with s.196-A, CrPC, 1989 – Thus, cognizance for offence u/s.120-B of RPC, 1989 was not taken by trial Court in absence of authorization or empowerment for conveying a complaint as mandated u/s.196-A, CrPC, 1989 – CrPC, 1989 repealed by J & K Reorganisation Act, 2019 on 31.10.2019 – Compliance with s.196-A, if mandatory – CrPC, 1973, if would have retrospective application: Held: There is nothing to infer either from the J & K Reorganisation Act, 2019 or the 2019 Order, that CrPC, 1973 will have a retrospective application – J & K Reorganisation Act, 2019 came into effect from 31.10.2019, which was the appointed day – Thus, CrPC, 1973 would govern the field only from 31.10.2019 onwards and therefore, has got no retrospective application – As mentioned in Table 3 of the Fifth Schedule of the J & K Reorganisation Act, 2019, followed by the introduction thereof, any investigation in currency at the time of repealing of any statute shall continue under CrPC, 1989 – CrPC, 1973 cannot be made applicable when CrPC, 1989 was still in force – Complaint was conveyed by the [2024] 5 S.C.R. 1057 National Investigation Agency New Delhi v. Owais Amin @ Cherry & Ors. District Magistrate to the Special Judge, NIA on 20.09.2019 – Chargesheet was filed on 25.09.2019 and the investigation was completed – J & K Reorganisation Act, 2019 came into existence on 31.10.2019 – Hence, on the day when the investigation stood completed, the CrPC, 1989 was in force within the Union Territory of J & K – Requirement of an authorization or an empowerment u/s. 196-A, CrPC, 1989 is mandatory for conveying a complaint, it being at the conclusion of investigation, would not preclude the investigating agency from complying with it thereafter – 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 – Omission caused by the appellant being a curable defect, would not enure to the benefit of the respondents, particularly when they were yet to be charged in the absence of such sanction or empowerment – Impugned judgment set aside insofar it confirmed the judgment of the Special Judge, NIA, in not taking cognizance for the offence punishable u/s. 120- B, RPC, 1989 – Appellant at liberty to comply with the mandate of s.196-A, CrPC, 1989. [Paras 19, 20, 25, 31, 32, 34, 35] Jammu & Kashmir Reorganisation Act, 2019 – s.103 – Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019 – Para 2(13) – Code of Criminal Procedure SVT., 1989 – Existing laws replaced, application of new laws – Continuation as well as initiation of proceedings under old laws facilitated: Held: Para 2(13) of the Order, 2019 does not merely deal with the previous operation of any law, but also any right, obligation or liability, apart from any penalty, forfeiture or punishment incurred – Sub-clause (d) of Clause 13 deals with the position qua an investigation in respect of any such right or obligation as mentioned in sub-clauses (a) to (c) – However, an addition was made to the effect that when an investigation, legal proceeding or remedy, for anything done under the old law which is inclusive of CrPC, 1989, the same would continue as if the Act, 2019 had not been passed – It is not only the continuation that has been facilitated, but also the initiation. [Para 24] Case Law Cited Nibaran Chandra v. Emperor (1929) A.I.R. 1929 Calcutta 754 – referred to. 1058 [2024] 5 S.C.R. Digital Supreme Court Reports List of Acts Jammu & Kashmir Reorganisation Act, 2019; Code of Criminal Procedure SVT., 1989; Code of Criminal Pr
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