Jammu & Kashmir High Court – Srinagar Bench
Gh. Nabi Shah vs Union Territory Of Jammu And Kashmir … on 22 August, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
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. 135/2022penalty, 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. 135/2022was 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. 135/2022statute 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