NATIONAL INVESTIGATION AGENCY NEW DELHIversusOWAIS AMIN @ CHERRY & ORS.

                 [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       1989 – CrPC, 1989 repealed by J & K Reorganisation Act, 2019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


* Author
[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.
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                                List of Acts
     Jammu & Kashmir Reorganisation Act, 2019; Code of Criminal
     Procedure SVT., 1989; Code of Criminal Procedure, 1973; Jammu
     and Kashmir State Ranbir Penal Code SVT., 1989; Jammu and
     Kashmir Reorganisation (Removal of Difficulties) Order, 2019; Penal
     Code, 1860; Explosive Substances Act, 1908; Jammu & Kashmir
     Public Property (Prevention of Damage) Act, 1985.

                             List of Keywords
     Jammu & Kashmir Reorganisation; Code of Criminal Procedure,
     1973 not retrospectively applicable; National Investigation Agency;
     NIA Court; Cognizance of offence; Cognizance of complaint;
     Sanction; Authorization or empowerment for conveying a complaint;
     Non-compliance of an earlier procedure; Old law repealed;
     Retrospective application; Right, obligation, liability, penalty,
     forfeiture or punishment incurred under old law.

                            Case Arising From

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2668
     of 2024
     From the Judgment and Order dated 27.04.2021 of the High Court of
     Jammu & Kashmir and Ladakh at Jammu in Crl.A (D) No. 11 of 2020

                         Appearances for Parties

     Surya Prakash V Raju, A.S.G., Mrs. Swati Ghirdiyal, Udai Khanna,
     Mrs. Sairica S Raju, Raghav Sharma, Ashutosh Ghade, Arvind Kumar
     Sharma, Advs. for the Appellant.
     Muzaffar Iqbal Khan, D. Mahesh Babu, Shishir Pinaki, Dhanaeswar
     Gudapalli, Manoj Kumar, Ms. Mallika Das, Amber Jain, Devjee Mishra,
     Advs. for the Respondents.
                Judgment / Order of the Supreme Court

                                Judgment
     M.M. Sundresh, J.
1.   Leave granted.
2.   Challenge in this appeal is to the judgment rendered by the Division
     Bench of the High Court of Jammu & Kashmir at Jammu in Criminal
[2024] 5 S.C.R.                                                    1059

               National Investigation Agency New Delhi v.
                     Owais Amin @ Cherry & Ors.

     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.
3.   Heard Mr. S.V. Raju, learned Additional Solicitor General appearing
     for the appellant, and Mr. D. Mahesh Babu, learned counsel
     appearing for the respondents. We have also perused the written
     submissions placed on record by the respondents.
     BRIEF FACTS
4.   A case was registered against the respondents in Case Crime
     No. 39/2019 under Sections 307, 120-B, 121, 121-A and 124-A
     of RPC, 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.
5.   The said case was re-registered by the appellant as RC-03/2019/
     NIA/JMU on 15.04.2019, subsequent to the order dated 12.04.2019,
     passed by the Ministry of Home Affairs (MHA), Government of
     India. A complaint dated 20.09.2019 was conveyed by the District
     Magistrate, Ramban by way of a communication to the NIA Court
     in tune with Sections 196 and 196-A of the Code of Criminal
     Procedure SVT., 1989 (hereinafter referred to as “CrPC, 1989”).
     Pursuant to the said complaint dated 20.09.2019, investigation
     was duly completed by the appellant and a chargesheet was filed
     on 25.09.2019.
6.   Accordingly, the respondents were charge-sheeted for the offences
     under Sections 306, 309, 307, 411, 120-B, 121, 121-A and 122 of
     RPC, 1989, Sections 16, 18, 20, 23, 38 and 39 of UAPA, 1967,
     Sections 3 and 4 of Explosive Substances Act, 1908 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
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     car laden with explosives. Before their attempt could succeed, a
     blast occurred resulting in the respondents fleeing from the place
     of occurrence.
7.   While taking cognizance, the Special Judge, NIA entertained
     the arguments of the respondents. Accordingly, he held that the
     complaint, as conveyed by the District Magistrate on 20.09.2019,
     was not in the prescribed form, and therefore does not satisfy the
     mandate as contemplated under Section 4(1)(e) of CrPC, 1989.
8.   After holding so, the Special Judge, NIA proceeded to conclude
     that 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 for the
     reason that neither was there any authorization, nor was there any
     empowerment as required under Section 196-A of CrPC, 1989.
     Resultantly, cognizance was taken for the remaining offences.
9.   Aggrieved by the decision of the Special Judge, NIA, both the
     appellant and the respondents filed their respective appeals. 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,
     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.
10. The High Court went on to uphold the finding of the Special Judge,
    NIA on the question of authorization or empowerment as required
    under Section 196-A of CrPC, 1989, after satisfying itself with the
    answer given by the officer concerned, who was physically present
    before it.
11. Incidentally, for the remaining offences for which cognizance was
    taken, the High Court remitted the case to the Special Judge,
    NIA for its satisfaction before deciding to take cognizance for the
    offences punishable under Sections 306 and 411 of RPC, 1989
    and Section 39 of UAPA, 1967. Insofar as this issue is concerned,
    due exercise has already been undertaken by the Special Judge,
[2024] 5 S.C.R.                                                         1061

               National Investigation Agency New Delhi v.
                     Owais Amin @ Cherry & Ors.

     NIA and therefore, it is academic in nature. In fact, the Special
     Judge, NIA has taken cognizance for the offences punishable under
     Sections 121, 121-A and 122 of RPC, 1989, along with Sections
     306 and 411 of RPC, 1989, and under Section 39 of UAPA, 1967.
     Thus, we are not inclined to go into those offences for which the
     trial is pending at an advanced stage.
12. This leaves us with the only question to be decided in the appeal,
    which is on the applicability of Section 196-A of CrPC, 1989 vis-à-
    vis the provisions and mandate contained in the Code of Criminal
    Procedure, 1973 (hereinafter referred to as “CrPC, 1973”).
13. For the sake of convenience, we have extracted the relevant
    provisions contained in CrPC, 1989 and the Code of Criminal
    Procedure, 1898 (hereinafter referred to as “CrPC, 1898”):
     Section 4 of the CrPC, 1989
           “4. Definitions. — (1) In this Code the following words
           and expressions have the following meanings, unless a
           different intention appears from the subject or context: —
                            xxx       xxx       xxx
           (e) “Complaint”. — “complaint” means the allegation
           made orally or in writing to a Magistrate, with a view
           to his taking action under this Code, that some
           person, whether known or unknown, has committed
           an offence but it does not include the report of a
           police-officer”
                                                (emphasis supplied)
     Section 196 of the CrPC, 1989
           “196. Prosecution for offences against the State.—No
           Court shall take cognizance of any offence punishable
           under Chapter VI or IX-A of the Ranbir Penal Code except
           section 127, and section 171-F, so far as it relates to the
           offence of personation, or punishable under section 108-
           A, or section 153-A, or section 294-A, or section 295-A
           or section 505 of the Ranbir Penal Code, unless upon
           complaint made by order of, or under authority from
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        the Government or District Magistrate or such other
        officer as may be empowered by the Government in
        this behalf.”
                                            (emphasis supplied)
    Section 196-A of the CrPC, 1989
        “196-A. Prosecution for certain classes of criminal
        conspiracy.
        No Court shall take cognizance of the offence of criminal
        conspiracy punishable under section 120-B of the Ranbir
        Penal Code, —
        (1) in a case where the object of the conspiracy is to
        commit either an illegal act other than an offence, or
        a legal act by illegal means, or an offence, to which
        the provisions of section 196 apply, unless upon
        complaint made by order of, or under authority from
        the Government or some officer empowered by the
        Government in this behalf, or
        (2) in a case where the object of the conspiracy is to
        commit any non-cognizable offence, or a cognizable
        offence not punishable with death, life imprisonment or
        rigorous imprisonment for a term of two years or upwards,
        unless the Government, or District Magistrate empowered
        in this behalf by the Government has, by order in writing,
        consented to the initiation of the proceeding
        Provided that where the criminal conspiracy is one to
        which the provisions of sub-section (4) of section 195
        apply, no such consent shall be necessary.”
                                            (emphasis supplied)
    Section 196A of the CrPC, 1898
        “Section 196A. Prosecution for certain classes of
        criminal conspiracy.—No Court shall take cognizance
        of the offence of criminal conspiracy punishable under
        Section 120B of the Indian Penal Code,
[2024] 5 S.C.R.                                                      1063

               National Investigation Agency New Delhi v.
                     Owais Amin @ Cherry & Ors.

           (1) in a case where the object of the conspiracy is to
           commit either an illegal act other than an offence, or
           a legal act by illegal means, or an offence to which
           the provisions of Section 196 apply, unless upon
           complaint made by order or under authority from the
           State Government or some officer empowered by the
           State Government in this behalf, or
           (2) in a case where the object of the conspiracy is to
           commit any non-cognizable offence, or a cognizable
           offence not punishable with death, imprisonment for
           life or rigorous imprisonment for a term of two years
           or upwards, unless the State Government or a Chief
           Presidency Magistrate or District Magistrate empowered
           in this behalf by the State Government has, by order in
           writing, consented to the initiation of the proceedings:
           Provided that where the criminal consipracy is one to
           which the provisions of sub-section (4) of Section 195
           apply no such consent shall be necessary.”
                                              (emphasis supplied)
14. Section 4(1)(e) of CrPC, 1989 defines a complaint. Such 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.
15. 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. The compliance
    is mandatory, failing which a Court cannot take cognizance under
    Section 196 of CrPC, 1989.
16. Section 196-A of CrPC, 1989 only deals with specified classes of
    criminal conspiracy for the purpose of prosecution. Section 120-B
    of RPC, 1989 deals with an offence pertaining to conspiracy, which
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     is pari materia to Section 120B of the Indian Penal Code, 1860.
     Sub-section (1) of Section 196-A of CrPC, 1989 speaks of the
     object of the conspiracy qua an illegal act other than an offence,
     a legal act by illegal means, or an offence to which Section 196 of
     CrPC, 1989 applies. For taking cognizance of such an offence, a
     complaint can only be made either by an order of the Government,
     or under its authority, or by an officer empowered by it. In the case
     of Section 196-A of CrPC, 1989, cognizance of a complaint can be
     taken by a Court only after satisfying itself of the due compliance
     of sub-section (1) of Section 196-A of CrPC, 1989 with respect to
     competence of the authority.
17. 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. We may also note
    that Section 196-A of CrPC, 1989 is pari materia to Section 196A
    of CrPC, 1898.
     THE JAMMU AND KASHMIR REORGANISATION ACT, 2019
18. We place reliance on the following provisions of the Jammu &
    Kashmir Reorganisation Act, 2019 (hereinafter referred to as “the
    Act, 2019”) which are extracted below:
     Section 95 of the Act, 2019
          “95. Territorial extent of laws - (1) All Central laws
          in Table 1 of the Fifth Schedule to this Act, on and
          from the appointed day, shall apply in the manner
          as provided therein, to the Union Territory of Jammu
          and Kashmir and Union Territory of Ladakh.
          (2) All other laws in Fifth Schedule, applicable to existing
          State of Jammu and Kashmir immediately before the
          appointed day, shall apply in the manner as provided
          therein, to the Union Territory of Jammu and Kashmir
          and Union Territory of Ladakh.”
                                                (emphasis supplied)
[2024] 5 S.C.R.                                                                1065

                National Investigation Agency New Delhi v.
                      Owais Amin @ Cherry & Ors.

     Fifth Schedule, Table 1 of the Act, 2019
                              “THE FIFTH SCHEDULE
                              (See Sections 95 and 96)
                                        TABLE 1
           CENTRAL LAWS MADE APPLICABLE TO THE UNION
           TERRITORY OF JAMMU AND KASHMIR; AND UNION
                      TERRITORY OF LADAKH
      S. No.        Name of the Act                 Section/Amendments
      1.       The Aadhar (Targeted          In sub-section (2) of section 1, words,
               Delivery of Financial and     “except the State of Jammu and
               Other Subsidies, Benefits     Kashmir” shall be omitted.
               and Services) Act, 2016.

      2.       The Administrative Tribunal   clause (b) of sub-section (2) of section
               Act, 1985.                    1 shall be omitted.

      3.       The Anand Marriage Act,       In sub-section (2) of section 1, words,
               1909.                         “except the State of Jammu and
                                             Kashmir” shall be omitted.

      4.       The Arbitration and           Proviso to sub-section (2) of section 1
               Conciliation Act, 1996.       shall be omitted.

      5.       The Prohibition of Benami     In sub-section (2) of section 1, words,
               Property Transactions Act,    “except the State of Jammu and
               1988.                         Kashmir” shall be omitted.


      6.       The Charitable Endowment      In sub-section (2) of section 1, words,
               Act, 1890.                    “except the State of Jammu and
                                             Kashmir” shall be omitted.
      7.       The Chit Funds Act, 1982.     In sub-section (2) of section 1, words,
                                             “except the State of Jammu and
                                             Kashmir” shall be omitted.
      8.       The Code of Civil             Clause (a) of sub-section (3) of section
               Procedure, 1908.              1 shall be omitted.
      9.       The Code of Criminal          In sub-section (2) of section 1,
               Procedure, 1973.              words, “except the State of Jammu
                                             and Kashmir” shall be omitted.”



                                                             (emphasis supplied)
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    Fifth Schedule, Table 3 of the Act, 2019
                                  TABLE 3
          STATE LAWS INCLUDING GOVERNOR’S ACTS WHICH
         ARE REPEALED IN UNION TERRITORY OF JAMMU AND
            KASHMIR; AND UNION TERRITORY OF LADAKH

        S.               Name of the Act                 Act/Ordinance
        No.                                                   No.

        1.    The Jammu and Kashmir Accountability XXXVIII of 2002
              Commission Act, 2002.
        2.    The Jammu and Kashmir Advocates            XXVI of 1997
              Welfare Fund Act, 1997.
        3.    The Jammu and Kashmir Agricultural          XXI of 1962
              Income Tax Act, 1962.
        4.    The Jammu and Kashmir State Agricultural   XXXVI of 1997
              Produce Marketing Regulation Act, 1997.
        5.    The Jammu and Kashmir Anand Marriage         IX of 2011
              Act, 1954.
        6.    The Jammu and Kashmir Animal                XV of 2006
              Diseases (Control) Act, 1949.
        7.    The Jammu and Kashmir Apartment               I of 1989
              Ownership Act, 1989.
        8.    The Jammu and Kashmir Arbitration and      XXXV of 1997
              Conciliation Act, 1997.
        9.    The Jammu and Kashmir Arya Samajist        III of Svt. 1999
              Marriages (Validation) Act, 1942.
        10.   The Jammu and Kashmir Ayurvedic and        XXVI of 1959
              Unani Practitioners Act, 1959.
        11.   The Jammu and Kashmir Banker’s Books         VI of 1977
              Evidence Act, 1920.
        12.   The Jammu and Kashmir Benami                 V of 2010
              Transactions (Prohibition) Act, 2010.
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               National Investigation Agency New Delhi v.
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       13.    The Jammu and Kashmir Boilers Act,        IV of Svt. 1991
              Samvat, 1991.

       14.    Buddhists Polyandrous Marriages               II of 1998
              Prohibition Act, 1941.

       15.    The Jammu and Kashmir Cattle Trespass       VII of 1977
              Act, 1920.

       16.    The Jammu and Kashmir Charitable            XIV of 1989
              Endowments Act, 1989.

       17.    The Jammu and Kashmir Chit Funds             XI of 2016
              Act, 2016.
       18.    The Jammu and Kashmir Christian               III of 1957
              Marriage and Divorce Act, 1957.
       19.    The Jammu and Kashmir Cinematograph        XXIV of 1989
              Act, 1933.
       20.    Code of Civil Procedure, Samvat 1977.      X of Svt. 1977

       21.    Code of Criminal Procedure, Samvat          XXIII of Svt.
              1989.                                          1989

                                                     (emphasis supplied)
19. The Act, 2019 came into effect from 31.10.2019, which was the
    appointed day as per Notification No. S.O. 2889(E) dated 09.08.2019.
    Section 95 of the Act, 2019 speaks of the application of the Central
    Laws to the Union Territory of the Jammu & Kashmir and Union
    Territory of Ladakh. The aforesaid notification provides a date of
    application i.e., 31.10.2019, for the implementation of the Fifth
    Schedule of the Act, 2019.
20. A perusal of Table 1 and Table 3 of the Fifth Schedule would clearly
    show that 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.
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     THE 2019 ACT VIS-À-VIS THE JAMMU AND KASHMIR
     REORGANISATION (REMOVAL OF DIFFICULTIES) ORDER, 2019
21. We place reliance on Section 103 of the Act, 2019 and Para 2(13)
    of the Jammu and Kashmir Reorganisation (Removal of Difficulties)
    Order, 2019 (hereinafter referred to as “the Order, 2019”) which are
    extracted below:
     Section 103 of the Act, 2019
          “103. Power to remove difficulties. — (1) If any
          difficulty arises in giving effect to the provisions of
          this Act, the President may, by order do anything not
          inconsistent with such provisions which appears to
          him to be necessary or expedient for the purpose of
          removing the difficulty:
          Provided that no such order shall be made after the expiry
          of a period of five years from the appointed day.
          (2) Every order made under this section shall be laid before
          each House of Parliament.”
                                                (emphasis supplied)
     Para 2(13) of the Order, 2019
          “2. Removal of difficulties. —The difficulties arising in
          giving effect to the provisions of the principal Act have
          been removed in the following manner, namely—
                                 xxx xxx xxx
          (13) The Acts repealed in the manner provided in Table
          3 of the Fifth Schedule, shall not affect—
               (a) the previous operation of any law so repealed
               or anything duly done or suffered there under;
               (b) any right, privilege, obligation or liability
               acquired, accrued or incurred under any law so
               repealed;
               (c) any penalty, forfeiture or punishment incurred
               in respect of any offence committed against any
               law so repealed; or
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               National Investigation Agency New Delhi v.
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                (d) any investigation, legal proceeding or remedy
                in respect of any such right, privilege, obligation,
                liability, penalty, forfeiture or punishment as
                aforesaid,
                and any such investigation, legal proceeding or
                remedy may be instituted, continued or enforced,
                and any such penalty, forfeiture or punishment
                may be imposed, as if this Act had not been
                passed.”
                                                 (emphasis supplied)
22. Section 103 of the Act, 2019 confers power upon the President of
    India to remove any difficulty that might arise in giving effect to the
    provisions of the Act, 2019. It has been conferred, so as to facilitate
    the application of new laws, which replaced the then existing ones.
23. In exercise of the powers conferred under Section 103 of the Act,
    2019, the Order, 2019 was promulgated on 30.10.2019, with the
    appointed day being 31.10.2019. It was accordingly introduced after
    completion of the procedure contemplated under Section 103 of the
    Act, 2019.
24. 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. 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 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.
25. The aforementioned paragraph not only speaks of a mere right, but
    also about an obligation. Such an obligation or a right can either
    be with an individual, or a State, as the case may be. When the
    State undertakes the exercise of investigating an offence, it does
    so on behalf of the public. Thus, any investigation in currency at
    the time of repealing of any statute, as mentioned in Table 3 of the
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     Fifth Schedule, followed by the introduction of the Act, 2019, shall
     continue under CrPC, 1989. However, the application of law thereon
     would be the CrPC, 1973. While so, the CrPC, 1973 cannot be made
     applicable when the earlier one (i.e. CrPC, 1989) was still in force.
26. It is to be noted, that 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. To put it differently,
    apart from the question of prejudice, an investigating agency is not
    debarred from proceeding further after complying with the omission
    committed earlier, by taking recourse to the repealed Code i.e.,
    CrPC, 1989. It is for this reason, that the Order, 2019 with specific
    reference to Para 2(13) has been introduced in exercise of the power
    conferred under Section 103 of the Act, 2019.
27. A similar issue was dealt with, way back in the year 1929 by the
    High Court of Calcutta in Nibaran Chandra v. Emperor, 1929 A.I.R.
    1929 Calcutta 754. Considering the said issue, Justice Mukherjee
    had rightly found a way out by giving liberty to the prosecution to
    proceed afresh, under Section 196A of CrPC, 1898:
          “The petitioners have been convicted under S. 120-B,
          I.P.C. Petitioner 1 has also been convicted under S. 384,
          I.P.C. and No. 2 under S. 384/114, I.P.C. The ground
          upon which this rule has been issued is that the trial
          was vitiated as the sanction contemplated by S. 196-
          A, Criminal P.C. had not been accorded by the Local
          Government to the prosecution of the petitioners
          under S. 120-B, I.P.C. Now the object of the conspiracy
          having been to commit an offence under S. 384, I.P.C.,
          which is a non-cognizable offence the Court could not
          take cognizance of the said offence without the sanction
          of the Local Government or of the District Magistrate
          empowered in that behalf. In the explanation which the
          learned Magistrate has submitted in answer to the rule
          he has suggested that the convictions under Ss. 384
          and 384/114, I.P.C. as against the petitioners 1 and 2
          respectively may be maintained and that the sentence
          passed on them may be treated as having been passed
          under the said sections. Apart from anything else, this
[2024] 5 S.C.R.                                                            1071

               National Investigation Agency New Delhi v.
                     Owais Amin @ Cherry & Ors.

           course, in my opinion, is likely to result in prejudice to the
           petitioners. They had been put on their trial in respect of
           offences under Ss. 384 and 384/114 along with a charge
           under S. 120-B. It is just possible and indeed it is not
           unlikely that a good deal of evidence that was adduced on
           behalf of the prosecution in this case in order to establish
           the charge of conspiracy would not be relevant as against
           the petitioners on the substantive charges under Ss. 384
           and 384/114, I.P.C. The trial held on charges which do not
           require sanction along with such as are not cognizable
           without sanction under S. 196-A, Criminal P. C., cannot
           be separated in this way.
           I am accordingly of opinion that this rule should be made
           absolute and the convictions and sentences passed on
           the petitioners should be set aside and the fines if paid
           by them should be refunded. It will be open to the
           prosecution to proceed afresh against the petitioners
           in respect of the charges under Ss. 384 and 384/114,
           I.P.C. or even as regards the charge under S. 120-B,
           I.P.C. provided that the requisite sanction under S.
           196-A, Criminal P. C. has been duly obtained. Such
           retrial, if it is to take place, will be held before some
           Magistrate other than the learned Magistrate who has
           already dealt with this case.
                                                 Rule made absolute.”
                                                  (emphasis supplied)
     SUBMISSIONS
28. 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.
29. 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
1072                                                        [2024] 5 S.C.R.

                     Digital Supreme Court Reports


     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.
     DISCUSSION
30. As stated, 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. Therefore, the submission of Mr. S.V. Raju, that there
    is no need for getting the appropriate sanction or empowerment
    as mandated under Section 196-A of CrPC, 1989 cannot be
    countenanced.
31. 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. 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.
32. Para 2(13) confers sufficient power on the investigating agency to
    deal with such a situation. 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.
    It is an approval from an appropriate authority of the investigation
    having been completed. We are not dealing with the case where an
    approval is declined or rejected. Rather, it is a case where an authority
    has failed to exercise the said power in granting an authorization.
    Thus, we are in complete agreement with the reasoning adopted by
    the High Court of Calcutta in Nibaran Chandra (supra).
33. If we were to hold that even by way of a prospective application,
    notwithstanding the non-compliance under the CrPC, 1989, the
[2024] 5 S.C.R.                                                      1073

                 National Investigation Agency New Delhi v.
                       Owais Amin @ Cherry & Ors.

     appellant shall be permitted to prosecute the respondents, we would
     only be applying CrPC, 1973 retrospectively, which as discussed is
     not permissible.
     ON FACTS
34. 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.
35. In such view of the matter, 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.
36. The appeal is accordingly allowed in part. Pending Applications, if
    any, stand disposed of.

     Result of the case: Appeal partly allowed.



     †
         Headnotes prepared by: Divya Pandey