HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on : 22.07.2025 Pronounced on : 22.08.2025 Case No.:- CRM(M) No. 135/2022 CrlM No. 441/2022 Gh. Nabi Shah, Aged about 65 years S/o Late Gh. Hassan Shah R/o Hyder Colony Janglat Mandi Anantnag. …..Petitioner(s) Through: Mr. Salih Pirzada, Advocate. Mr. Aabid, Advocate. Vs Union Territory of Jammu and Kashmir through Senior Superintendent of Police, Police Station, Anti Corruption Bureau Anantnag South Srinagar. .…. Respondent(s) Through: Mr. Mohsin ul-Showkat Qadri, Sr. AAG with Ms. Nadia Abdullah, Assisting counsel. Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGEMENT 1. The petitioner, through the medium of this petition under Section 482 of the Code of Criminal Procedure, has challenged FIR No. 04 of 2020 dated 17.08.2020 for offences under Sections 5(1) (d) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 and 120-B of the Ranbir Penal Code registered with Police Station, Anti Corruption Bureau, Anantnag. 2 CRM(M) No. 135/2022 2. As per the impugned FIR, a verification was conducted by the investigating agency to look into the allegations that management of Urban Co-operative Bank Limited, Anantnag has issued dozens of backdoor appointment orders in favour of their kith and kin and several others, though they were ineligible. It was alleged that these backdoor appointment orders were issued without any formal advertisement and selection process by misuse of official positions by the officers/management of the Bank. 3. After conducting the verification, it was found that out of the twelve appointments made during the year 2010 to 2013 by the Urban Cooperative Bank Limited, Anantnag (hereinafter to be referred to as „Bank‟), nine appointees were found to be kith and kin/relatives of the bank officials/board members of the Bank. The particulars of these beneficiaries have been given in the impugned FIR. 4. It was also found that the appointments were made by the Bank management without inviting applications through advertisement notices and without following the recruitment rules. It was further found that three more persons were appointed as Recovery Assistants/Helpers in violation of rules/regulations without following proper procedure by the then Chairman of the Board, Urban Cooperative Bank Ltd, 3 CRM(M) No. 135/2022 Anantnag, namely Gh. Nabi Shah, the petitioner herein, by abuse of his official position in league with the beneficiaries and others. 5. It was found that appointments were made temporarily but were extended from time to time to the benefit of the employees by the petitioner herein, who further regularized the appointees in April, 2015 and placed them in the grades with a view to confer undue benefits to the candidates by abusing of his official position. Thus, offences under Sections 5(1) (d) read with Section and 5(2) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 (hereinafter to be referred to as „State Act‟) and Section 120-B RPC are stated to have been established against the petitioner and beneficiaries as well as other officials of the Bank. As per the impugned FIR, the investigation has been entrusted to Inspector Zulkernain Banday. 6. The petitioner has challenged the impugned FIR on the ground that after coming into force of the Jammu and Kashmir Re-organization Act of 2019 (hereinafter to be referred to as „Act of 2019‟), the provisions of Prevention of Corruption Act, 1988 (hereinafter to be referred to as „Act of 1988‟), have been extended to the UT of Jammu and Kashmir, therefore, the procedure prescribed in the said Act 4 CRM(M) No. 135/2022 would be applicable to the case at hand. It has been submitted that in terms of Section 17-A of the Act of 1988, without previous approval of the competent authority, the investigation against the petitioner could not have proceeded. 7. It has also been contended that in terms of Section 17 of the Act of 1988, the investigation can be conducted only by an officer, who is of the rank of Deputy Superintendent of Police but in instant case investigation has been handed over to a non-designated officer who is inferior in rank to Deputy Superintendent of Police. The petitioner has further contended that an employee/officer of the Cooperative Society does not fall within the definition of ‘public servant‟ as contained in Section 2(2) of the State Act, as such, the proceedings against the petitioner cannot continue. 8. The respondent-investigating agency, in its reply, to the petition has reiterated the allegations made in the impugned FIR and it has been contended that the petitioner has appointed as many as 12 candidates without following mandate of the law and the rules. It has been further contended that the instant case is a classical example of nepotism and favouritism where the petitioner has showered favours upon his kith and kin. It has been contended that 5 CRM(M) No. 135/2022 in terms of Section 21 of the Ranbir Penal Code, servants/officers of the Cooperative Societies/ Banks have been included within the definition of „public servant‟. 9. It has been contended that provisions contained in section 17-A of the Act of 1988 are not retrospective in their operation and since the occurrence, which is subject matter of the impugned FIR, has taken place at the time when the State Act was in force, as such, the provisions contained in Act of 1988 are not applied to the present case. 10. I have heard learned counsel for the parties and perused record of the case. 11. The first question that is required to be determined is as to whether the provisions contained in Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 or the provisions contained in the Act of 1988 would be applicable to the present case. 12. It is an admitted case of the parties that the occurrence, which is subject matter of the impugned FIR, is alleged to have taken place during the period 2010 to 2013, which is prior to the promulgation of Jammu and Kashmir Re-organization Act, 2019 whereby the State Act was repealed and the provisions of the Act of 1988 were extended to UT of Jammu and Kashmir. 6 CRM(M) No. 135/2022 13. While learned counsel for the petitioner has fairly conceded that because the occurrence, which is subject matter of the impugned FIR, has taken place at a time when Act of 1988 was not in force, the investigating agency has rightly registered the impugned FIR under the State Act, which was in force at the relevant time. He has, however, contended that procedure prescribed under the Act of 1988 for investigating the impugned FIR has to be followed, as according to him, the provisions relating to the procedure of investigation have retrospective application. In this regard, the learned counsel has placed reliance upon the following judgments: (i) Kapur Chand Pokhraj Vs. State of Bombay reported as 1958 SCC Online SC 36. (ii) Nani Gopal Mitra Vs. State of Bihar reported as 1968 SCC Online SC 44 and (iii) Bashir Ahmad & Ors Vs. Chairman, Anti-Corruption Commission and Ors reported as JKJ Online 8161. 14. As already stated after the promulgation of the Jammu and Kashmir Re-organization Act, 2019, in terms of sections 95 and 96 of the said Act, certain central laws were made applicable to the UT of Jammu and Kashmir whereas, certain laws, which were applicable to the UT of Jammu and 7 CRM(M) No. 135/2022 Kashmir, were repealed. The State Act came to be repealed and in its place, the Act of 1988 was made applicable to the UT of Jammu and Kashmir. The crucial date for this change is 31.08.2019. 15. In terms of Section 103 of the Jammu and Kashmir Re- organization Act, 2019, the President was vested with power to do anything not inconsistent with the provisions of the said Act which would appear to him to be necessary or expedient for the purpose of removing the difficulty. In exercise of this power, Removal of Difficulties Orders of 2019 came to be issued. Clause 13 of Removal of Difficulties Orders of 2019 is relevant to the extent 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 8 CRM(M) No. 135/2022 penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.” 16. As per the contents of the afore-quoted clause, repeal of the Acts would not affect the previous operation of any law, any right, privilege, obligation or liability acquired, accrued or incurred under such repealed law, any penalty, forfeiture or punishment incurred in respect of any offence committed against any such repealed law, any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment under such repealed law. 17. It further provides that any investigation, legal proceeding or remedy can be instituted, continued or enforced and any such penalty, forfeiture or punishment can be imposed as if the Jammu and Kashmir Re-organization Act, 2019 had not been passed meaning thereby that not only the continuation of investigation, legal proceeding or remedy under a repealed law has been saved but its initiation has also been saved. 18. In the instant case, the alleged offence has taken place at a time when State Act was in force and, as such, in terms of Article 20(1) of the Constitution of India which provides that no person shall be convicted for any offence except for violation of a law which was in force at the relevant time, the 9 CRM(M) No. 135/2022 petitioner has to be tried for the offence as defined under repealed State Act and not for the offences created under the Act of 1988, which was not in force at the time of the alleged occurrence. There is no difficulty on this aspect but the contention of the petitioner is that procedure for investigation of the said offence has to be governed by the Act of 1988 and not by the State Act and if the said contention is accepted then not only the petitioner would be entitled to protection under section 17-A of the Act of 1988 but the investigation, which has been handed over to the officer of the rank of Inspector, is vitiated because the same does not conform to the requirements of Section 17 of the Act of 1988. 19. I am afraid the contention of the learned counsel for the petitioner cannot be accepted because Clause (13) of the Removal of Difficulties Order, 2019 saves not only the continuation of the investigation, legal proceeding or remedy under the repealed Acts but it also saves initiation of these proceedings under the repealed Act if a person has suffered or incurred any liability under the repealed law. In the instant case, the petitioner has incurred the liability of prosecution under the State Act and as such, the investigation in respect of such offence has to be instituted and continued under the State Act. The said action of the 10 CRM(M) No. 135/2022 respondent-investigating agency is clearly saved by Clause 13 of the Removal of Difficulties Orders, 2019. 20. So far as the judgments referred to and relied upon by the learned counsel for the petitioner for supporting his contention is concerned, the same do not apply to the facts of the present case for the reasons given hereinafter. 21. In Kapoor Chand Pokhraj‟s case (supra), the Supreme Court observed that when the repealing Act does not make any change either in the offence or in the procedure prescribed to prosecute for that offence and expressly saves the offence committed under the repealed Act, the intention can be legitimately imputed to the legislature that the procedure prescribed under the new Act should be followed, even in respect of offences committed under the repealed Act. Such is not the case in the present scenario. It is nobody’s case that Act of 1988 does not make any change either in the offences or in the procedure prescribed nor can it be stated that the said Act saves the offences committed under the State Act. Therefore, ratio laid down in Kapoor Chand Pokhraj‟s case (supra) is not applicable to the present case. 22. In Nani Gopal Mitra‟s case (supra), the entire proceedings had taken place under the repealed Act and it is in those 11 CRM(M) No. 135/2022 circumstances that the Supreme Court had held that the argument of the appellant that the conviction pronounced by the trial court therein had become illegal because of amendment to the procedural law cannot be accepted. 23. In Bashir Ahmad‟s case (supra), a Division Bench of this Court was seized of an issue with regard to the fate of the cases pending under Jammu and Kashmir Government Servants Prevention of Corruption Act, 1962 after it was repealed and replaced by Jammu and Kashmir Government Servants Prevention of Corruption Act, 1975 whereby a Tribunal was constituted for trial of such cases. In view of the provisions contained in the Act of 1975, the Division Bench of this Court held that except the cases which come within the scope of Clause-(e) of Section 33 of the 1975 Act, all other cases at whatever stage pending before the Commission would stand transferred to the Tribunal to be proceeded with under the provisions of the 1975 Act. The said conclusion was arrived at by the Division Bench on the basis of the provisions contained in the Act of 1975. There is no similar provision either in the Jammu and Kashmir Re-organization Act, 2019 or in the Act of 1988 that would provide for holding or continuation of investigation in respect of offence registered under the State Act in terms of provisions contained in the Act of 1988. Apart from this, it is 12 CRM(M) No. 135/2022 legally impermissible to make a portion of a particular statute applicable retrospectively and give a prospective application to other portions of the same statute. 24. To make the things more clear, it will be apt to refer to some of the relevant precedents of the Supreme Court. In the case of ‘M.C. Gupta Vs. Central Bureau of Investigation‟ (2012) 8 SCC 669 the Supreme Court after considering the issue as to whether the offence committed at the time when Prevention of Corruption Act, 1947 was in force, could be investigated and tried in accordance with the provisions of the Act of Prevention of Corruption Act, 1988 which had come into force at the time when the investigation of the said case was started, after noticing the provisions of Section 6 of the General Clauses Act as also the provisions contained in Section 30 of the Prevention of Corruption Act, 1988, held that an offence committed at the time when Prevention of Corruption Act of 1947 was in force has to be investigated and tried under the said Act and not under the repealing Act of 1988. The relevant observations of the Supreme Court are reproduced as under: “13. Thus assuming the proceedings under the Act of 1947 initiated against the appellants cannot be saved by Section 30(2) of the New Act because no action was taken pursuant to the Act of 1947, prior to coming into force of the New Act, saving clause contained in Section 30 is not exhaustive. Section 6 of the GC Act can still save the proceedings. 13 CRM(M) No. 135/2022 14. Viewed from this angle, clauses (c) and (e) of Section 6 of the GC Act become relevant for the present case. Sub-clause (c) says that if any Central Act repeals any enactment, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. In this case, the right which had accrued to the investigating agency to investigate the crime which took place prior to the coming into force of the New Act and which was covered by the Act of 1947 remained, unaffected by reason of clause (c) of Section 6. Clause (e) says that the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and Section 6 further states that any such investigation, legal proceeding or remedy may be instituted, continued or enforced and such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. Therefore, the right of C.B.I. to investigate the crime, institute proceedings and prosecute the appellants is saved and not affected by the repeal of Act of 1947. That is to say, the right to investigate and the corresponding liability incurred are saved. Section 6 of the GC Act qualifies the effect of repeal stated in sub-clauses (a) to (e) by the words „unless a different intention appears‟. Different intention must appear in the repealing Act (See Bansidhar). If the repealing Act discloses a different intention, the repeal shall not result in situations stated in sub-clauses (a) to (e). No different intention is disclosed in the provisions of the New Act to hold that repeal of the Act of 1947 affects the right of the investigating agency to investigate offences which are covered by the Act of 1947 or that it prevents the investigating agency from proceeding with the investigation and prosecuting the accused for offences under the Act of 1947. In our opinion, therefore, the repeal of the Act of 1947 does not vitiate or invalidate the criminal case instituted against the appellants and the consequent conviction of the appellants for offences under the provisions of the Act of 1947. 15. There is no substance in the contention that the appellants could not have been charged under the provisions of the Act of 1947 after its repeal. As we have already noted, the offence is alleged to have been committed prior to the coming into force of the New Act. When the offence was committed, the Act of 1947 14 CRM(M) No. 135/2022 was in force. It is elementary that no person shall be convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence nor can he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Article 20(1) of the Constitution of India is clear on this point. The appellants were, therefore, rightly charged, tried and convicted under the provisions of the Act of 1947. We may also note that the provisions of the New Act are more stringent than the provisions of the Act of 1947. The appellants cannot, therefore, be said to have been prejudiced.” 25. Again the Supreme Court in the case of ‘Hitendra Vishnu Thakur Vs. State of Maharashtra‟ reported as (1994) 4 SC 602 has clearly held that a statute, which not only changes the procedure but also creates new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided either expressly or by necessary implication. The relevant observation of the Supreme Court in this regard are reproduced as under: 26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a 15 CRM(M) No. 135/2022 statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication." 26. In the light of aforesaid principles laid down by the Supreme Court, the issue at hand is required to be addressed. In this regard, it is to be noticed that provisions of the Act of 1988 not only create new offences but the same also provide procedure for investigation and trial of such offences. Therefore, in view of legal position laid down by the Supreme Court in Hitendra Vishnu Thakur‟s case (supra) and M.C. Gupta‟s case (supra), the Act of 1988 cannot be given a retrospective application in respect of offences which have taken place when the Act was not in operation in the UT of 16 CRM(M) No. 135/2022 Jammu and Kashmir. Thus, the provisions contained in the State Act would continue to apply in respect of offences which have taken place at the time when the State Act was in force and the investigation and trial of such offences will have to be carried out in accordance with provisions contained in the State Act and not in accordance with the provisions contained the Act of 1988. The contention of the learned counsel for the petitioner in this regard is without any substance. 27. In view of the foregoing analysis of the legal position, the provisions contained in Sections 17 and 17-A of the Act of 1988 would not become applicable to the case of the petitioner. Therefore, requirement of previous approval of the competent authority in terms of Section 17-A of the Act of 1988 for investigation of the impugned FIR is not necessary nor is it necessary that investigation of the said FIR is to be conducted by an officer of the rank of Deputy Superintendent of Police as provided in Section 17 of the Act of 1988. This is so because the provisions contained in the Act of 1988, have no applicability to the present case. 28. As per second proviso to Section 3 of the State Act, if an officer of the Vigilance Organization above the rank of a Sub Inspector of police is specially authorized in writing by an 17 CRM(M) No. 135/2022 officer of the Vigilance Organization not below the rank of an Assistant Superintendent of Police to investigate such offence, such officer is competent to investigate the offence on the basis of authorization. In the present case, the investigating officer, who is of the rank of Inspector, has been specially authorized by the Superintendent of Police, Vigilance Organization to conduct investigation of the impugned FIR, as such, he is competent to investigate the impugned FIR. The contention of the petitioner on both the counts is therefore, without any substance. 29. On merits, it has been contended by the learned counsel for the petitioner that the petitioner is not a public servant within the meaning of sub-Section (2) of Section 2 of the State Act, because as an officer of the Cooperative Society is not a public servant as defined in Indian Penal Code. 30. If we have a look at sub-section (2) of Section 2 of State Act, it adopts the definition of „public servant‟ as contained in Section 21 of the Ranbir Penal Code. Section 21 of the Ranbir Penal Code defines “public servant”, and it brings certain persons within the purview of the definition of “Public Servant”. An officer or servant employed by a Cooperative Society or Cooperative Bank, whether for the whole or part of his tenure including every member of the 18 CRM(M) No. 135/2022 society or bank falls within the definition of “Public Servant” as contained in aforesaid provisions. 31. The petitioner admittedly was Chairman of the Board of Urban Co-operative Bank Limited, Anantnag as such, he qualifies to be a public servant within the meaning of sub- section (2) of Section 2 of the State Act read with Section 21 of the Ranbir Penal Code. Thus, the provisions of the State Act are applicable to the case of the petitioner. The contention of the petitioner that he is not a public servant is, therefore, without any substance. 32. From the preceding analysis of the legal position, it is clear that the grounds projected by the petitioner for assailing the impugned FIR have been found to be meritless. Therefore, challenge to the impugned FIR fails. The petition, as such, is dismissed. Interim order dated 28.04.2022 shall stand vacated. (SANJAY DHAR) JUDGE SRINAGAR 22.08.2025 Naresh/Secy. Whether judgment is speaking: Yes Whether judgment is reportable: Yes … Naresh Kumar 2025.08.22 18:40 I attest to the accuracy and integrity of this document