The Jammu & Kashmir and Ladakh High Court, while considering petitions challenging criminal prosecution initiated by investigating agencies in matters arising out of the Roshni Act, has held that the declaration of the Act as unconstitutional and void ab initio does not, by itself, render criminal prosecution unsustainable in law.

The Court observed that, while examining the validity of criminal proceedings, it is necessary to assess the individual role attributed to each petitioner, bearing in mind that the Jammu & Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 (Roshni Act) was a valid and operative piece of legislation at the time when the petitioners acted or omitted to act in connection with its implementation.

Justice Sanjay Dhar, while deciding the batch of petitions, held that howsoever flawed or objectionable the Roshni Act may have been, mere action taken pursuant to the Act, which was in force at the relevant time, cannot automatically expose public servants to criminal prosecution. The Court clarified that the subsequent declaration of the statute as unconstitutional and void ab initio does not retrospectively criminalise actions taken under it.

The Court further held that prosecution can be sustained only if the acts or omissions of the petitioners independently constitute an offence, particularly criminal misconduct as defined under Section 5(1)(d) of the Jammu & Kashmir Prevention of Corruption Act. In the absence of material disclosing such misconduct, continuation of criminal proceedings would not be legally justified.

Emphasising the statutory framework, Justice Dhar observed that officers were duty-bound to consider cases of unauthorised occupants of State land for conferment of ownership rights strictly in accordance with the provisions of the Roshni Act and the Rules framed thereunder. The Act itself contemplated penalties for inaction and incentives for expeditious implementation, thereby obligating public servants to process cases under the statutory scheme.

In this context, the Court held that public servants who acted in accordance with the Roshni Act, as it stood at the relevant time, cannot be subjected to criminal prosecution solely because the Act was subsequently declared unconstitutional, unless their conduct discloses abuse of official position or criminal intent falling within the ambit of penal law.

The Court reiterated that criminal liability cannot be fastened retrospectively on the basis of subsequent invalidation of a statute, and that the sustainability of prosecution must depend on the existence of specific allegations constituting criminal misconduct, rather than the fate of the legislation itself.