Supreme Court: In an appeal against the judgment passed by J& K and Ladakh High Court, by which the judgment rendered by the Special Judge, National Investigation Agency (NIA) 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, 1989 (‘RPC, 1989’) along with Section 39 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA, 1967’) for taking cognizance afresh, the division bench of M. M. Sundresh* and S. V. N. Bhatti, JJ. while setting 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, held 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.
Background:
A case was registered by NIA against the respondents under Sections 306, 307, 309, 411, 120-B, 121, 121-A, 122 of RPC, 1989, Sections 3 and 4 of the Explosive Substances Act, 1908, and Sections 16, 18, 20, 23, 38, and 39 of the UAPA, 1967 and Section 4 of the Jammu & Kashmir Public Property (Prevention of Damage) Act, 1985, 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.
The Special Judge, NIA has 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 Code of Criminal Procedure (‘CrPC, 1989’). Thus, no cognizance can be taken for the offences charged under Sections 121, 121-A and 122 of the RPC, 1989 as the procedure contemplated under Section 196-B of CrPC, 1989 has not been followed. Furthermore, cognizance was also not taken for the offence committed under Section 120-B of RPC, 1989 because there was no authorization, nor was there any empowerment as required under Section 196-A of CrPC, 1989. Resultantly, cognizance was taken for the remaining offences.
Thereafter, the High Court held that Special Judge, NIA was wrong on two counts, namely, that the complaint made was in accordance with Section 4(1)(e) of CrPC, 1989, and in view of the discretion available under Section 196-B of CrPC, 1989, there is no question of undertaking any mandatory preliminary investigation. However, the High Court upheld the finding of the Special Judge, NIA on the question of authorization or empowerment as required under Section 196-A of CrPC, 1989.
Analysis and Decision:
For examining the applicability of Section 196-A of CrPC, 1989 vis-à-vis the provisions and mandate contained in the Code of Criminal Procedure, 1973 (‘CrPC, 1973’), the Court took note Section 4(1)(e) of CrPC, 1989 which defines a complaint, and noted that a complaint includes an allegation made either orally or in writing. Certainly, there is no prescribed format for making a complaint, as even an oral allegation constitutes a complaint.
The Court further noted that as per Section 196 of CrPC, 1989 which deals with the offences committed against the State, a jurisdictional court shall take cognizance only upon a complaint made by the order of, or under the authority from the Government, or a District Magistrate, or such other officer as empowered by the Government for the aforesaid purpose. Thus, Section 196 of CrPC, 1989 forecloses any other methodology than the one provided thereunder. Compliance is mandatory, failing which a Court cannot take cognizance under Section 196 of CrPC, 1989.
The Court also noted that though Sections 196 and 196-A of CrPC, 1989 seem to be similar insofar as the authority competent to convey a complaint is concerned, under Section 196 of CrPC, 1989, a District Magistrate can lodge it by himself, whereas, the same provision is not available under Section 196-A of CrPC, 1989. Further, Section 196-A of CrPC, 1989 is pari materia to Section 196A of CrPC, 1898.
After placing reliance on the provisions of the Jammu & Kashmir Reorganisation Act, 2019, (‘Act, 2019’) the Court said that CrPC, 1973 would govern the field only from the appointed day and consequently the CrPC, 1989 stands repealed. Thus, it would come into effect only from the appointed day (31-10-2019), and therefore has got no retrospective application.
The Court further took note of Para 2(13) of the Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019 (‘Order, 2019’), and said that Para 2(13) of the Order, 2019 concerns itself with the circumstances under which the earlier laws would not be affected. It 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. Further, the Court noted that an addition has been 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.
The Court held 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 Court said that while we are holding that the requirement of an authorization or an empowerment is mandatory for conveying a complaint, it being at the conclusion of investigation, would not preclude the investigating agency from complying with it thereafter.
The Court said that on facts, it is an omission caused by NIA 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.
The Court reiterated that the complaint was conveyed by the District Magistrate 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.
Thus, the Court 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. Further, the Bench permitted NIA to comply with the mandate of Section 196-A of the CrPC, 1989, by seeking appropriate authorization or empowerment. Moreover, the Court said that 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.
[National Investigation Agency v. Owais Amin, 2024 SCC OnLine SC 983, decided on 17-05-2024]
*Judgment Authored by: Justice M. M. Sundresh
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