(1) On 16th October 1959 the Presidency Magistrate, 7th Court, Dadar, Bombay convicted one Mahomed Idris Rahimatkhan of the offence punishable under section 337 of the Indian Penal Code an sentenced him to suffer rigorous imprisonment of two months.
(2) Mahomed Idris Rahimatkhan has now filed the present appeal against the said order of conviction and sentence. The question is, whether the appeal is competent, in view of the Code of Criminal Procedure (Bombay Amendment ) Act, 1959 (Bombay Act LIV of 1959?
(3) It is not disputed that the proceedings in which the order of conviction and sentence was passed were pending before the Presidency Magistrate since before the commencement of the Code of Criminal Pocedure (Bombay Amendment) Act, 1959. The Act came into force on 8th October 1959 and the proceedings were then pending before the Presidency Magistrate.
(4) Before the Act was passed there was no appeal provided for against the order of conviction and sectence is passed in the present case. Section 411 of the Code of Criminal Procedure, before its amendment by the aforesaid Bombay Amendment Act of 1959 provided that
'any person convicted on a trial held by a Presidency Magistrate may appeal to the High Court if the Magistrate has sentenced him to imprisonment for a term exceding six months or to a fine exceeding two hundred rupeed.'
In the present case, the sentence of imprisonment being for a term of only two months no appeal could have been preferred under the unamended section 411 of the Code of Criminal Procedure.
(5) The Code of Criminal Procedure (Bombay Amendment) Act, 1959, has notdeleted the words 'for a term exceeding six months' in section 411. Mr. Bhasme argues that on the date on which the order of conviction and sentence was passed oin the present case, section 411 had stood amended and the originalwords 'for a term exceeding six months' of the section had been deleted and that therefore the person convicted could avail himself of the amended section which was already on the statute book and filed an appeal to this Court even though the sentence of imprisonment did not exceed six months. Mr. Bhasme relied upon Raja Kulkarni v. State of Bombay, : AIR1951Bom105 . In tht case a dispute between texitile workers and the Mill Owners' Association was referred to the Industrial Court on 23rd December 1949 under section 73A of the Bombay Industrial Relations Act. On May 20, 1950, the Industrial Disputes (Appellate Tribunal) Act, 1950, came into force which for the tirst tim e gave a right of appeal against an award made by the industrial Court. The Industrial Court made an award on July 7, 1950. On August 9, 1950 the Mllowners' Association preferred an appeal against the award of the Industrial Court. It was held by a Bench of this Court that an appeal to theappellate Tribunal from the decision of the Industrial Court was competent as section 7 of the Industrial Disputes (Appellate Tribunal) Act did not interfere with any vested right. It was observed in that case that where from a decree or an order which was not appealable a right of appeal was given for the first time, an appeal could be filed even with regard to decisions and orders made in actions which were pending at the date when the right was given, and that was because no party had got a vested right to compe the other part to take as fina decision in a pending action of a Court from whose decision subsequently an appeal was provided to a higher Court, The Act which provided such appeal merely affected procedure.
(6) The learned Assistant government Pleader, on the other had relied upon the observations in Veeraya v. Subbiah Choudhury, : 1SCR488 , and coutended that a right of appeal was not a mere matter of procedure but was a substantive right and if such a right did not exist at the time of the commencement of the proceedings, the party aggrievd could not avail himself of the law that pevailed at the date of the decision in those proceedings or at the date of the filing of the appeal.
(7) It seems to us that the question whether the right of appeal exists in the present case will have to be determined by eference to the rpovisions of the Code of Criminal Procedure (Bombay Amendment) Act, 1959, which are clear and explicit. By Section 2 of that Act, amendments have been made in sub-section (1) of section 260, section 362 and in section 411 of the Code of Criminal Procedure. 1898. Sec 3 of the Act is important and saves pending proceeding from being affected by the provisions of the Act. It provides:
'The amendment of the Criminal Procedure Code by the provisions of this Act shall not affect the cotinuation or disposal of any proceedings pending before a Presidency Magistrate immediately before the commencemen of this Act and accordingly, such proceedings shall be continued and disposed of in every respect as if this Act had not been passed'.
(8) The amendment introduced by the Act includes also the amendment of Section 411 of the Code of Criminal Procedure, and when section 3 of the Act says that the amendment of the Criminal Procedure Code by the provisions of the Act shall not affect the pending proceedings, it must necessarily mean that the amendment introduced in section 411 shall nt affect the pending proceedings. If so, the pending proceedings are governed, for the purpose of appeal, by the old section 411 of the Code. That the pending proceedings are for the purpose of appeal governed by old, unamended section 411, is also clear from the latter part of section 3 of the Act where it is stated that 'such proceedings shall be continued and disposed of in every respect as if this Act had not been passed'. The words 'in every respect' seem to us to contemplate appeal proceedings arising ot of to contemplate appeal proceedings arising out of pending proceedings and we have already seen that the Act, by section 2(c), has amended section 411 of the Code. We therefore hold that the proceedings pending before a Presidency Magistrate immeiately before the commencement of the Code of Criminal Procedure (Bombay Amendment) Act, 1959, are governed for the parpose of an appeal to be preferred from them by section 411 of the Code of Criminal Procedure as it stood before its amendment by the aforesaid Act of 1959.
(9) Appeal dismissed.