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Judgment
The case under Section 7/8 of the Jammu & Kashmir Protection of Children from Sexual Violence Act, 2012 (in short "Act") read with Section 452, 354, 323 & 506 of RPC has been registered against the petitioner under FIR No. 31/2018 dated 03.12.2018, registered with Police Station Women, Doda.
Learned counsel for the petitioner urged that no case could be registered under the Act against the petitioner, inasmuch as, on the date when the offence is alleged to have been committed by the petitioner, the Act had not come into force and even the ordinance, which had been issued on 16.05.2018 had lived its life. For purposes of reference, following are the dates, which may be relevant for understanding the controversy:-
Ø Date of issuance of ordinance - 16.05.2018
Ø Date of alleged offence - 29.11.2018
Ø Date of registration of FIR - 03.12.2018
Ø Date of notification of the Jammu & Kashmir - 07.12.2018
Protection of Children from Sexual Violence Act, 2012.
Ø Date on which the Assembly was - 10.02.2018
last convened by his Excellency the Governor.
Ø Date of dissolution of Assembly - 21.11.2018
by his Excellency the Governor.
With reference to the aforementioned dates, it was urged that since the Assembly was last convened on 10.02.2018, as per the requirement of Section 53 of the State Constitution analogous to Section 85 of the Constitution of India not more than six months should have elapsed between the two sittings of each House of the State Legislature.
It was urged that in terms of Section 91 of the Constitution of Jammu & Kashmir, while the Governor does have the power to promulgate ordinance and has the same force and effect as an Act of the Legislature, but every such ordinance is also required to be placed before each of the Houses of the Legislature and shall cease to operate at the expiration of six weeks from the assembly of the Legislature or before the expiration of that period, if a resolution disapproving it is passed by the Legislative Assembly and aggrieved to by the Legislative Council.
Reliance is also placed the judgment of the Constitution Bench of Apex Court in "Krishna Kumar Singh & anr Vs State of Bihar & ors", reported in 2017(3) SCC 1, particularly in paragraph 107, wherein the Apex Court held as under:-
"That the powers vested with the Governor in terms of Article 213 is a necessary concomitant to the supremacy of a democratically elected legislature. ............... The re-assemblying of the legislature defines the outer limit for the validity of the Ordinance promulgated during its absence in session. Within that period, a legislature has authority to disapprove the Ordinance. The requirement of laying an Ordinance before the legislative body subserves the constitutional purpose of ensuring that the provisions of the Ordinance are debated upon and discussed in the legislature. .............. If an Ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature incorporating its provisions. ................... The placement of an Ordinance before the legislature is a constitutional necessity; a the underlying object and rationale being to enable the legislature to determine (i) the need for and expediency of an ordinance; (ii) whether a law should be enacted; or (iii) whether the Ordinance should be disapproved."
In paragraph 108, the Apex Court held as under:-
"The failure to lay an Ordinance before the state legislature constitutes a serious infraction of the constitutional obligation imposed by Article 213(2). It is upon an Ordinance being laid before the House that it is formally brought to the notice of the legislature. Failure to lay the Ordinance is a serious infraction because it may impact upon the ability of the legislature to deal with the Ordinance. We are not for a moment suggesting that the legislature cannot deal with a situation where the government of the day has breached its constitutional obligation to lay the Ordinance before the legislature. The legislature can undoubtedly even in that situation exercise its powers under Article 213(2)(a). However, the requirement of laying an Ordinance before the state legislature is a mandatory obligation and is not merely of a directory nature. ........................................"
What was sought to be emphasized in the present case was that the ordinance in question was not placed before either House of the Legislature, which was not convened in terms of Section 53 of the State Constitution and, therefore, had lived its life. While the power of his Excellency the Governor to enact the Act is conceded, it is stated that the offence of which has been booked would be an offence only after the date of enactment on 07.12.2018 and since the alleged offence is stated to have been committed much before the promulgation of the Act, therefore, the provisions of the Act.
Prima-facie, case is made out.
Notice.
Mr. Raman Sharma, learned Dy. AG waives notice on behalf of the respondent Nos. 1 to 3.
Notice to respondent No. 4.
List again on 25.02.2019.
Meanwhile, subject to objections and till next date of hearing, proceedings initiated against the petitioner in FIR No.31/2018, registered with Police Station Women, Doda under Section 7/8 of the Jammu & Kashmir Protection of Children from Sexual Violence Act, 2012 only shall remain stayed.