Brief Facts
- 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.
- 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.
- 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.
- 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.
- The Special Judge, NIA concluded 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.
- 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.
- The High Court vide judgment dated 27.04.2021 upheld the finding of the Special Judge, NIA on the question of authorization or empowerment as required under Section 196-A of CrPC, 1989, 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.
Issues
- 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”)
- Whether cognizance of offences under Sections 121, 121-A, 122, and particularly Section 120-B of the RPC, 1989, could be taken in the absence of proper authorization or empowerment mandated under Section 196-A of the CrPC, 1989?
- Whether Section 196-A of the CrPC, 1989 is pari materia with the provisions of the CrPC, 1973 or with Section 196-A of the CrPC, 1898, and how this affects the procedure for prosecuting criminal conspiracy?
- Whether the High Court erred in affirming the refusal to take cognizance of the offence under Section 120-B RPC, despite holding that the complaint was valid under Section 4(1)(e) and that Section 196-B did not mandate a preliminary inquiry?
Held
- The Hon’ble Supreme Court allowed the Appeal in part and 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. The findings of the Court are as under:
- 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 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. Inthe 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.
- 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.
- 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.
- 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.
Relevant Para No.
- 16, 17, 34 and 35