Pawan Kumar vs Dharam Chand And Others on 19 October, 2020

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Jammu & Kashmir High Court

Pawan Kumar vs Dharam Chand And Others on 19 October, 2020

1) Petitioner has filed the instant Criminal Revision Petition against the judgment dated 28.12.2019 passed by learned Chief Judicial Magistrate, Udhampur, whereby the learned Magistrate has dismissed the police challan and acquitted the accused from the charges.

2) Vide order dated 14.08.2020 passed by a Co-ordinate Bench of this Court, the petitioner was asked to satisfy the Court on the question of maintainability of the petition.

3) I have heard learned counsel for petitioner and perused the record.

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4) It has been contended by learned counsel for the petitioner that although the Jammu and Kashmir Code of Criminal Procedure, Svt. 1989, stands repealed with the coming into effect of the Jammu and Kashmir Reorganization Act, 2019 (for short Re-organization Act) yet the proceedings in the instant case are required to be undertaken in terms of the repealed Code, as the incident which was subject matter of the impugned judgment before the trial court, had taken place prior to coming into effect of the Reorganization Act, when the Jammu and Kashmir Code of Criminal Procedure was in force. Learned counsel has submitted that there is no provision in the Jammu and Kashmir Code of Criminal Procedure which entitles a victim/complainant to file an appeal against a judgment of acquittal as is the case with Central Code of Criminal Procedure.

5) A perusal of the record shows that the FIR, which was subject matter of the impugned judgment, was registered in the year 2007 when the Jammu and Kashmir Code of Criminal Procedure was in operation and, as such, the proceedings of the case before the trial court have taken place in accordance with the provisions of the said Code. With the coming into effect of the Reorganization Act on 31 st of October, 2019, the aforesaid Code stands repealed and, in its place, the Code of Criminal Procedure, 1973 (Central Code) has been made applicable to the Union Territory of Jammu and MOHAMMAD ALTAF BHAT Kashmir. The question, therefore, arises as to whether provisions of 2020.10.21 10:19 I attest to the accuracy and integrity of this document 3 Crl R No.16/2020 CrlM No.802/2020 CrlM No.803/2020 the repealed Code would continue to apply to the legal proceedings that were initiated at the time when the said Code was in operation even after its repeal. While considering this question it has to be borne in mind that appellate proceedings or revisional proceedings are continuation of the proceedings before the trial court

6) The Jammu and Kashmir Reorganization (Removal of Difficulties) Order, 2019, that has been promulgated by the President of India in exercise of his powers under Section 103 of the Reorganization Act, has made certain provisions with a view to remove difficulties arising in giving effect to the provisions of the Reorganization Act, 2019. Clause 13 of the said Order is relevant to the context and the same is reproduced as under:

"(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

(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."

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7) A perusal of the aforesaid Clause, which is in paramateria with Section 6 of the General Clauses Act, 1897, shows that any legal proceedings instituted under a repealed Act shall not be affected by the repealing of the said Act. Thus, pending proceedings or the proceedings that have been initiated under the repealed Code of Criminal Procedure will continue to be governed by the provisions of the said Code until the same come to a logical conclusion. As already stated, an appeal or a revision is continuation of original proceedings, therefore, the proceedings of the case at hand would continue to be governed by the provisions of the Jammu and Kashmir Code of Criminal Procedure.

8) There is a fundamental difference between the provisions of the Jammu and Kashmir Criminal Procedure Code and the Central Code of Criminal Procedure, 1973, so far as they relate to the filing of appeals. Section 404 of the Jammu and Kashmir Code of Criminal Procedure provides for filing of an appeal. It reads as under:

"404. Unless otherwise provided, no appeal to lie No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

9) In paramateria with the aforesaid provision is Section 372 of the Central Code of Criminal Procedure, 1973. It reads as under:

"372. No appeal to lie unless otherwise provided. --No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

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Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."

10) A perusal of the afore-quoted provisions of the two Codes clearly shows that while the Jammu and Kashmir Code of Criminal Procedure does not give a right of appeal to a victim or a complainant, the Central Code of Criminal Procedure gives a right of appeal to a victim against a judgment of acquittal or conviction for a lesser offence or in a case where inadequate compensation has been imposed. Since the proceedings of the instant case are governed by the J&K Code of Criminal Procedure, as such, the petitioner could not have availed the remedy of appeal as no such remedy is available to him under the repealed Code. The order of acquittal being a final order, as such, petitioner is well within his rights to prefer a revision petition against the said order in the absence of remedy of appeal. Accordingly, the revision petition is held to be maintainable.

11) Issue notice to the respondents through SHO of concerned Police Station.

                        12)     List again on 27th of November, 2020

                                                                                   (Sanjay Dhar)
                                                                                        Judge
                        Jammu
                        19.10.2020
                        "Bhat Altaf, PS"
                                           Whether the order is speaking:         Yes/No
MOHAMMAD ALTAF BHAT
2020.10.21 10:19
                                           Whether the order is reportable:       Yes/No
I attest to the accuracy and
integrity of this document

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