IMPORTANT POINT
Cognizance of offence – Mere non-compliance of an earlier procedure mentioned in repealed Code by itself would not enure to benefit of accused, procedure being a curable one, depending upon facts and circumstances of case – Apart from question of prejudice, investigating agency is not debarred from proceeding further after complying with omission committed earlier, by taking recourse to repealed Code.

1. Leave granted.

2. Challenge in this appeal is to the judgment rendered by the Division Bench of the High Court of Jammu and Kashmir at Jammu in Criminal 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 “Cr.P.C. 1989”). Pursuant to the said complaint dated 20.09.2019, investigation was duly completed by the appellant and a charge-sheet 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 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 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. 1989, and in view of the discretion available under Section 196-B of Cr.P.C. 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 Cr.P.C. 1989, after satisfying itself with the answer given by the officer concer