Ghulam Mohi Ud Din Rather vs State Of J&K on 19 April, 2022

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Jammu & Kashmir High Court - Srinagar Bench

Ghulam Mohi Ud Din Rather vs State Of J&K on 19 April, 2022

1) A common question of law has been raised by learned counsel for the petitioners in all these petitions. According to the learned counsel for the petitioners, with the coming into effect of the Jammu and Kashmir Reorganization Act, 2019 and the consequent repeal of the Jammu & 2 Kashmir Prevention of Corruption Act, 2006 (Svt) and the Jammu and Kashmir Criminal Law Amendment Act, 1958, the Special Courts, before whom trials relating to offences under the provisions of the repealed Jammu & Kashmir Prevention of Corruption Act, 2006 (Svt), are pending, are not vested with the power to continue with the trials of these cases. On this ground, it is urged that the proceedings pending before the Special Courts in all these connected cases are required to be quashed or at least kept in abeyance till appropriate legal framework is devised by the Legislature/Government.

2) It has been contended by learned counsel for the petitioners that in a similar situation, when Prevention of Corruption Act, 1947 was repealed by Prevention of Corruption Act, 1988, a special provision in the shape of Section 26A was incorporated in 1988 Act whereby appointment of judges of the Special Courts appointed under West Bengal Criminal Law Amendment Act, 1949, was saved. In this regard learned counsel has relied upon the judgment of the Supreme Court in the case of State of West Bengal vs. Sadan K. Bormal and another, (2004) 6 SCC 59, to drive home his point. According to the learned counsel, in the absence of similar legal framework saving the appointment of Judges of Special Courts appointed under the Jammu & Kashmir Criminal Law Amendment Act, 1958, the trial of the cases involving offences under the Jammu & Kashmir Prevention of Corruption Act, 2006 (Svt), is without jurisdiction. 3

3) I have heard learned counsel for the parties and perused the material on record.

4) Prior to coming into operation of the Jammu & Kashmir Reorganization Act, 2019, the Jammu & Kashmir Prevention of Corruption Act, 2006 (Svt) was in operation to provide for effective provision for prevention of bribery, corruption in the erstwhile State of Jammu and Kashmir. The provisions of the aforesaid Act brought certain acts and omissions within the ambit of offences under the said Act and provided procedure for investigation and trial of such offences including the punishment therefor.

5) Section 6 of the Jammu & Kashmir Criminal Law Amendment Act, 1958, vested power with the Government to appoint as many Special Judges as may be necessary for any area to try the offences punishable under Section 161, 165, 165A of RPC and Section 5(2) of the Jammu & Kashmir Prevention of Corruption Act, 2006. Both these legislations i.e., Jammu & Kashmir Prevention of Corruption Act, 2006 (Svt) and Jammu & Kashmir Criminal Law Amendment Act, 1958, stand repealed by virtue of the Jammu and Kashmir Reorganization Act, 2019.

6) The question that arises for consideration is whether the Special Judges appointed under the Prevention of Corruption Act, 1988, which is now applicable to this part of the Country, can try offences under the repealed provisions of the Jammu & Kashmir Prevention of Corruption Act. Section 3 of 1988 Act makes it very clear that it is only offences 4 punishable under the said Act i.e., Act of 1988 which can be tried by the Special Judges appointed under the said Act. So, it is clear that Special Judges appointed by the Government in terms of Section 3 of 1988 Act are not vested with the jurisdiction to try the cases under the repealed Jammu & Kashmir Prevention of Corruption Act, 2006.

7) However, there is yet another aspect of the matter which is required to be noticed. The President of India, in exercise of his powers conferred by Section 103 of the Jammu and Kashmir Reorganization Act, 2019, has issued Removal of Difficulties Oder, 2019, vide S.O.3912(E) of 2019 dated 30.10.2019. Clauses (13) and (14) of the said Order are relevant to the context and the same are 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.

(14) Anything done or any action taken including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or Scheme framed, certificate obtained, permit or licence granted or registration effected or agreement executed under any law shall be deemed to have been done or taken under the corresponding provisions of the Central laws now extended and applicable to the Union Territory of Jammu and 5 Kashmir and the Union Territory of Ladakh and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the Central laws now extended.

8) From a conjoint reading of the aforesaid two Clauses, it becomes clear that in spite of repeal of the Acts by virtue of the Jammu and Kashmir Reorganization Act, 2019, which includes the Jammu and Kashmir Prevention of Corruption Act, 2006 and the Criminal Law Amendment Act, 1958, the legal proceedings and the investigation under the repealed laws are saved, inasmuch as the same can be continued and enforced as if the Acts had not been repealed. For the purpose of enforcement, continuance and institution of legal proceedings under the repealed Prevention of Corruption Act, it can safely be inferred that the forum crated for this purpose is also saved. Clause (14) makes the things more clear as it saves the appointments, delegations, notifications etc. made under the repealed laws and it further provides that the same shall continue to be in force accordingly unless and until superseded by anything done or any action taken under Central laws now extended. Thus, the appointment of Special Courts under the repealed Criminal Law Amendment Act will continue to be in operation and the said Courts will continue to have jurisdiction to try the offences under the repealed Jammu & Kashmir Prevention of Corruption act.

9) Since the provisions of the Jammu & Kashmir Reorganization Act, 2019 read with Removal of Difficulties Order, 2019, have provided a legal framework to take care of the situation as has been highlighted by learned counsel for the petitioners during the course of arguments, as such, it 6 cannot be stated that there is no legal framework in existence for appointment of Special Courts for trial of such offences. The argument of learned counsel for the petitioners, therefore, deserve to be rejected. A Coordinate Bench of this Court has already taken a similar view in the case of Liaq Parvaiz vs. UT of J&K & Ors. (Bail App. No.71/2020) decided on 19.05.2020.

10) For the foregoing reasons, the contention raised by learned counsel for the petitioner is rejected. Accordingly, the Registry is directed to delink all these petitions and list them separately for consideration on merits on following dates:

    (i)       CRMC No.155/2017 on 23.05.2022.

    (ii)      CRMC No.24/2018 on 24.05.2022.
    (iii)     CRMC No.120/2018 on 25.05.2022.

    (iv)      CRMC No.169/2017 on 26.05.2022.
    (v)       CRMC No.195/2018 on 27.05.2022.


                                                      (Sanjay Dhar)
                                                          Judge

Srinagar
19.04.2022
"Bhat Altaf, PS"

                   Whether the order is speaking:       Yes/No
                   Whether the order is reportable:     Yes/No

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Jammu & Kashmir High Court - Srinagar Bench