Jammu & Kashmir High Court - Srinagar Bench
Liaq Parvaiz vs Ut Of J&K And Ors on 19 August, 2020
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
1
Supplementary
List
Sr. No. 108
IN THE HIGH COURT OF JAMMU AND KASHMIR AT
SRINAGAR
Bail App. No. 71/2020
Liaq Parvaiz
... Petitioner(s)
Through: - Mr R. A. Jan, Sr. Advocate with
Mr Taha Khalil, Advocate
V/s
UT of J&K and Ors.
....Respondents(s)
Through: Mr D. C. Raina, Advocate General with
Mr B. A. Dar, Sr. AAG
Whether approved for reporting: Yes.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
ORDER
19.08.2020 The instant application is filed by the applicant under and in terms of Section 438 of the Code of Criminal Procedure, for short Cr.P.C., seeking grant of bail in anticipation of arrest in connection with case FIR no. 03/2020 of Police Station Anti-Corruption Bureau Kashmir, Srinagar, registered for the commission of offences punishable in terms of Section 5(1) (d) and Section 5 (2) of the Prevention of Corruption Act, Svt. 2006, for short P. C. Act, read with Section 120-B of the Ranbir Penal Code, for short RPC.
The bail is sought inter alia on the grounds that the very premise on which the FIR has been registered is factually unfounded and legally misconceived thus wholly unwarranted; that it is registered in most mechanical and perfunctory manner under the repealed P.C. Act.
Ordinarily, this Court does not entertain bail applications seeking regular or bail in anticipation of arrest in those cases where the remedy of approaching the court of first instance has not been exhausted and only the cases with peculiar circumstances are exceptionally considered.
2Since the present case raises a ground that the applicant could not approach the court of first instance due to global pandemic on account of Covid-19 despite many attempts, therefore, the court entertained the application and desired to seek response of the respondents. The application has further been entertained on noticing the challenge made qua the lack of powers to the Anti-Corruption Bureau with reference to registration of case in hand. Mr B. A. Dar, learned Sr. AAG, who was available in the court, accordingly was asked to file response.
Today when the matter was taken up for consideration, learned Advocate General, requested for hearing on the points raised by Mr R. A. Jan, learned Sr. Counsel, qua the lack of jurisdiction and the power of the Anti-Corruption Bureau. However, before the learned Advocate General could be heard on the points raised, Mr R. A. Jan, learned Senior Counsel, conceded the position with reference to the availability of the power with the Anti-Corruption Bureau vis-à-vis registration of the FIR and investigation of the matter with reference to application of the provisions of the Jammu and Kashmir Re-Organization Act, 2019 and Rule 13 & 14 of the Jammu and Kashmir Re-Organization (Removal of Difficulties) Order, 2019.
Though on the admission of Mr R. A. Jan, learned Sr. Counsel, qua the availability of power and availability of court of first instance nothing remains for further consideration, however, the learned Advocate General submits that there is a possibility that similar issues may be raised by the other accused in similar kind of cases and in absence of any guidance in this behalf from this Court, there is a likelihood that the subordinate courts may proceed on wrong premise which may affect the criminal justice delivery system, therefore, he prayed to be heard on the points raised.
Mr D. C. Raina, learned Advocate General, made reference to the provisions of the Jammu and Kashmir Reorganisation Act and the Clause 13 and 14 of the Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019, besides Section 6 of the General Clauses Act which saves the action taken qua application of repealed laws in the Union Territories of J&K and Ladakh. The learned Advocate General submits that there is absolutely no ambiguity vis-à-vis the powers of the Anti-Corruption Bureau for registration of the case in question under Repealed Act. He referred to and relied upon the judgment of the Hon'ble Supreme Court, to indicate that the points raised in the application in hand are squarely covered by the 3 ratio laid down therein, reported as (2012) 8 SCC 669. Paragraphs 6 and 7 being relevant are taken note of hereunder:-
"6. The basic submissions o fMr Amarendera Sharan and Mr S. K. Dubey, learned senior counsel for the appellants is based on the fact that the 1947 Act stood repealed by the Prevention of Corruption Act, 1988 (for short "the new Act"). The alleged crime took place between 9-7-1988 and 14.7.1988 and FIR was lodged in respect of the same on 19.2.1990 alleging offences under the 1947 Act. The counsel submitted that FIR could not have been lodged for the offences punishable under the 1947 Act, which stood repealed by the new Act. It was urged that in fact, by reason of repeal, proceedings under the 1947 Act stand obliterated. In this connection, our attention was drawn to Section 30 of the new Act. Sub-section (1) of Section 30 thereof provides for repeal and saving. It states that the 1947 Act stands repealed. It was pointed out that sub-section (2) of Section 30 of the new Act states that notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (for short "the GC Act"), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, insofar as it is not inconsistent with the provisions of the new Act be deemed to have been done or taken under or in pursuance of the corresponding provisions of the new Act.
7. The counsel pointed out that nothing was done or no action was taken in pursuance of the 1947 Act and, therefore, there was no question of coming to a conclusion that any action taken could be deemed to have been taken under the provisions of the new Act. Since no action was taken under the 1947 Act, there was no question of saving it. The counsel also drew our attention to Section 6 of the GC Act which speaks about the effect of repeal. The counsel submitted that the instant case is not covered by any of the sub-clauses of Section 6 of the GC Act so as to come to a conclusion that any investigation, legal proceeding or remedy may be instituted, continued or enforced 4 or any penalty or punishment may be imposed as if the repealing Act had not been passed."
Heard learned counsel for the parties.
It is observed at the cost of repetition that with the admission of Mr R. A. Jan, learned Sr. Counsel, appearing for the applicant, nothing remained to be decided, however, the submission of the learned Advocate General cannot be ignored, therefore, the court feels it appropriate to make certain observations and return the findings on the issues raised at the end of the order.
In light of the discussion made hereinabove the court is not inclined to entertain this application for the reason that the court of first instance i.e. the designated court under the provisions of the P. C. Act, (Court of Additional District and Sessions Judge, Pulwama), being available, may be approached and relief sought before it. Mr Jan, learned senior counsel, reiterated his submission that the applicant may feel difficulties in approaching the court of first instance on account of covid-19 pandemic. The designated court i.e. court of Additional District and Sessions Judge, Pulwama, shall ensure its availability to the applicant today itself and provide all the details necessary for hearing of the matter in virtual mode and consider the same tomorrow positively. Any lapse, if brought to the notice of the court regarding non-availability or non-furnishing of the necessary details for consideration of the case, shall be viewed seriously.
Registrar Judicial shall convey the order to the designated court i.e court of Additional District & Sessions Judge, Pulwama, forthwith through virtual mode so that the appearance of the counsel through virtual mode in the matter is facilitated.
It is expected that the respondents will not take any action in the matter till tomorrow i.e. 20th August, 2020.
Before parting with the file and while taking into consideration the submissions of the learned Advocate General, the following observations/ directions are made:
1) The right which has accrued to the Anti-Corruption Bureau to investigate the crime which took place prior to coming into force of the Central Act and which was covered by the said Act remained unaffected by the reason of clause (c) of section 6 of the General Clauses Act, 1897, and the application of Clause 13 & 14 of the 5 Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019, the repealment shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
2) The power of the Special Judges in the Union Territory of J&K and Union Territory of Ladakh vested with the special powers in terms of the notifications published in the official gazette issued by the Government of Jammu and Kashmir from time to time under Repealed Act, is also saved in terms of application of Clause 14 of the Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019, therefore, all the Special Courts shall continue to exercise its powers as was being done prior to commencement of J&K Reorganisation Act, 2019.
Disposed of.
The Court feels it necessary to place on record the appreciation for the approach adopted by Mr R. A. Jan, learned Senior Counsel, by frankly admitting the legal position and facilitating a just decision in right earnest. The court also appreciates the endeavor made by the Learned Advocate General and Mr B. A. Dar, learned Sr. AAG, in rendering the proper assistance in the matter.
Copy of the order be furnished to the learned counsel for the parties and to the Director Anti-Corruption Bureau J&K, for information.
(Ali Mohammad Magrey) Judge Srinagar 19.08.2020 Amjad Lone PS Whether the order is speaking: Yes