NATIONAL INVESTIGATION AGENCY NEW DELHI versus OWAIS AMIN @ CHERRY & ORS.
[2024] 5 S.C.R. 1056, Supreme Court of India, 2024
Outcome: Case Partly allowed (Granted)
Segment: Issues
* 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1989 – CrPC, 1989 repealed by J & K Reorganisation Act, 2019 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
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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
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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,
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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,
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(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)
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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 
Delivery of Financial and 
Other Subsidies, Benefits 
and Services) Act, 2016.
In sub-section (2) of section 1, words, 
“except the State of Jammu and 
Kashmir” shall be omitted.
2.
The Administrative Tribunal 
Act, 1985.
clause (b) of sub-section (2) of section 
1 shall be omitted.
3.
The Anand Marriage Act, 
1909.
In sub-section (2) of section 1, words, 
“except the State of Jammu and 
Kashmir” shall be omitted.
4.
The Arbitration and 
Conciliation Act, 1996.
Proviso to sub-section (2) of section 1 
shall be omitted.
5.
The Prohibition of Benami 
Property Transactions Act, 
1988.
In sub-section (2) of section 1, words, 
“except the State of Jammu and 
Kashmir” shall be omitted.
6.
The Charitable Endowment 
Act, 1890.
In sub-section (2) of section 1, words, 
“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.
T h e  C o d e  o f  C i v i l 
Procedure, 1908.
Clause (a) of sub-section (3) of section 
1 shall be omitted.
9.
The Code of Criminal 
Procedure, 1973.
In sub-section (2) of
section 1, 
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. 
No.
Name of the Act
Act/Ordinance 
No.
1.
The Jammu and Kashmir Accountability 
Commission Act, 2002.
XXXVIII of 2002
2.
The Jammu and Kashmir Advocates 
Welfare Fund Act, 1997.
XXVI of 1997
3.
The Jammu and Kashmir Agricultural 
Income Tax Act, 1962.
XXI of 1962
4.
The Jammu and Kashmir State Agricultural 
Produce Marketing Regulation Act, 1997.
XXXVI of 1997
5.
The Jammu and Kashmir Anand Marriage 
Act, 1954.
IX of 2011
6.
The Jammu and Kashmir Animal 
Diseases (Control) Act, 1949.
XV of 2006
7.
The Jammu and Kashmir Apartment 
Ownership Act, 1989.
I of 1989
8.
The Jammu and Kashmir Arbitration and 
Conciliation Act, 1997.
XXXV of 1997
9.
The Jammu and Kashmir Arya Samajist 
Marriages (Validation) Act, 1942.
III of Svt. 1999
10.
The Jammu and Kashmir Ayurvedic and 
Unani Practitioners Act, 1959.
XXVI of 1959
11.
The Jammu and Kashmir Banker’s Books 
Evidence Act, 1920.
VI of 1977
12.
The Jammu and Kashmir Benami 
Transactions (Prohibition) Act, 2010.
V of 2010
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13.
The Jammu and Kashmir Boilers Act, 
Samvat, 1991.
IV of Svt. 1991
14.
Buddhists Polyandrous Marriages 
Prohibition Act, 1941.
II of 1998
15.
The Jammu and Kashmir Cattle Trespass 
Act, 1920.
VII of 1977
16.
The Jammu and Kashmir Charitable 
Endowments Act, 1989.
XIV of 1989
17.
The Jammu and Kashmir Chit Funds 
Act, 2016.
XI of 2016
18.
The Jammu and Kashmir Christian 
Marriage and Divorce Act, 1957.
III of 1957
19.
The Jammu and Kashmir Cinematograph 
Act, 1933.
XXIV of 1989
20.
Code of Civil Procedure, Samvat 1977.
X of Svt. 1977
21.
Code of Criminal Procedure, Samvat 
1989.
XXIII of Svt. 
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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(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
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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
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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
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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