Syed Qamar Hasan, J.
1. This reference to a larger Bench under Section 10 (2), Hyderabad High Court Act calls for the determination of the following questions:
(1) Whether the opportunity of further cross examination given to an accused under Sub-section (2) of Section 267A of the repealed Hyderabad Criminal P. C. is, a substantive right Which could be exercised by an accused in a trial commencing under the Indian Criminal P. C. after its application to the State on 1-4-51, or whether the trial should be conducted only in accordance with the Indian Criminal P. C., without the accused being given an opportunity of further cross, examination?
(2) Even assuming that the opportunity of further cross-examination is a vested right, whether Sub-section (3) of Section 25, Criminal P. C. (Amendment) Act of 1951 has not taken away that right expressly or by necessary implication?
(3) If the answer to questions (1) and (2) above is that the opportunity of further cross-examination under the old Code is a right which subsists, whether having regard to Article 254 of the Constitution of India, any rights under the repealed Hyderabad Criminal P. C. could subsist which are inconsistent with a law of the Parliament in respect of a matter pertaining to the concurrent list?
2. A few facts leading to the present reference may be mentioned. Twenty-two persons including the petitioner Wahid Hasan Khan were charge-sheeted on 20-12-1950 before the Special Magistrate for offences falling under Sections 330, 243, 77B of the Hyderabad Penal Code and Sections 9 and 10/14 of the Hyderabad Arms Regulation and Rule 37 of the Defence of Hyderabad Rules. The accused taking advantage of Section 267A of the Hyderabad Code requested the Court to commit the case without holding any inquiry. The Special Magistrate acceded to the request and committed the case to the Sessions Court, Medak, by his order dated 8-1-1951. Proceedings commenced before the Additional Sessions Judge on 18-1-1951 but were adjourned from time to time for receipt of property, production of evidence, for appointment of Public Prosecutor and disposal of bail application.
In the meantime, due to the extension of the Indian Criminal P. C. in Part B States, the Sessions Court doubted as to the continuance of its Jurisdiction to try the case and kept it pending for orders of the High Court. The case was eventually transferred by this Court to the Hyderabad District. The trial commenced there on 28-11-1951 in accordance with the provisions of Section 271 of the Indian Criminal P. C. Pour assessors were empanelled and the prosecution evidence was examined and cross-examined. When the two prosecution witnesses had still to be examined, an application was made on 13-2-1953, to recall all of them once again for further cross-examination under Section 267A of the Hyderabad Code. In supported case of Syed Mohammed v. The State of Hyderabad C. No. 853 of 1951 (A). In which a Bench of this Court of which I was a member, had held that the right of further cross-examination conferred by Section 267A, Hyderabad Cr. P. C. was a substantive right and was not affected by the repeal of the Hyderabad Law.
The learned Additional Sessions Judge refused to take into consideration the authority cited before him on the ground that the case had not been reported and only an uncertified copy of the judgment was produced for his perusal. Apart from that, he further held that as the Indian Criminal P. O. dealt with matters of procedure, it would apply to all pending proceedings with retrospective effect and that in any event further cross-examination would unnecessarily delay the proceedings which had already been pending since long.
3. Aggrieved by this order, the petitioner moved 'the High Court, in the exercise of its revisions jurisdiction. The Division Bench which in the first instance heard the petition, referred it to a Full Bench as in the opinion of the learned Judges, constituting it, the case involved some important questions of law. The Pull Bench doubted the correctness of the case, which was relied on before the learned Sessions Judge, as the Judges who decided that case had failed to consider the effect Of Section 25, Indian Criminal P. C. (Amendment Act) and also for the reason that the right of further cross-examination under Section 267A of the repealed Hyderabad Code was a procedural right and it did not enure for the benefit of the accused in view of the fact that the trial commenced after the enforcement of the Indian Criminal P. O. Hence, this reference to the larger Bench with the three questions as stated above.
4. Before the year 1344P., the Hyderabad Criminal P. C. provided almost the same procedure for holding an inquiry in cases triable by a Court of Sessions as was prescribed by the Indian Criminal P. C. According to that procedure, the prosecution had the right to produce evidence to support the charge and the accused had the right to cross-examine the witnesses. With a view to curtail the duration of inquiry in cases triable by Court of Sessions, an amendment was Introduced by Section 4 of Act 4 of 1344F., by addition of a new provision numbered as Section 267A which laid down inter alia that:
in a case triable by a Court of sessions if the accused applies that it be committed to the Sessions Court without an enquiry, the Magistrate shall frame a charge which 'prima facie' could be framed on the facts of the case and commit it to Sessions.
As the absence of the inquiry according to the amended procedure entailed the loss of an opportunity of cross-examining the prosecution witnesses, sub-section 2(b) enacted that;
Where any case is committed to the cessions under the Section, except in cases where the court is of opinion that further cross-examination would cause undue delay, the accused may, before entering upon his defence, further cross-examine any witness produced on behalf of the prosecution in the Sessions trial and In case the application was disallowed the court should record its reasons therefor.
5. On 1-4-51, the Cri. P. C. (Amendment) Act (Act 1 of 1951) hereinafter referred to as the said Code, came into force and was made applicable of Section 25 of the said Code that:
If immediately before the day on which this Act comes into force in a Part B State, there is in force in that State any law which corresponds to the said Code, such corresponding law shall on that day stand repealed.
and by Sub-section (3) it was laid down that:
the provisions of the said Code shall apply to all proceedings instituted after the coming into force of the said Code in any Part B State and, so far as may be, to all cases pending in any criminal court in that State when the said Code comes into force therein.
6. In view of these provisions, it can be said; that on 28-11-1951, when the trial commenced in the Court of Sessions, the Hyderabad Code along with Section 267A stood repealed. As has been laid down in Miller's case (1746-80) 96 ER 259 (B) no proceedings can be pursued under a repealed Act though begun before the repeal unless by special exception. The reason is that when an Act is repealed, it is the same thing as if it had never existed except with reference to such parts as are saved by the repealing statute. Reference may be made in this connection to a passage in - R. v. penton (Inhabitants) (1387) 18 QB 761 (C), wherein it was observed that after a statute has been repealed, it cannot be acted upon in respect of a proceeding under it, which was commenced before its repeal and in this respect there is no valid distinction between matters of form and substance.
7. But it is argued by Shri D. M. Deshmukh that it is not the course of legislation to deprive a person of vested rights, and according to his contention, the right of further cross-examination conferred by Section 267A(2)(b) is a substantive or vested right and not a mere matter of procedure or form. He, therefore, contended that retrospective operation should not be given to Act 1 of 1951 so as to impair an existing right.
8. It cannot be denied that the further opportunity to re-cross-examine the witnesses is a right though a limited one, but the question is whether it was an accrued or a vested right, A mere right existing at the date of a repealing Statute to take advantage of the provisions of the statute repealed, is not a right accrued within the meaning of the usual saving clause providing that all rights accrued by virtue of the statute repealed, are to be unaffected by such repeal : Halsbury's Laws of England (Hailsham Edition) Vol. 31 page 817. In Abbott v. Minister for Lands (1895) AC 425 (D), the position is thus stated:
The mere right (assuming it to be properly so-called) existing in the members of community or any class of them to take advantage of an enactment without any act done by an individual towards availing himself of that right cannot properly be deemed a 'right accrued' within the meaning of an enactment.
9. It is to be observed that any provision analogous to the saving clause dealt with in the quotation from the Laws of England does not find place in Section 25 of the said Code.
10. In course of the arguments addressed to us on behalf of the appellants a number of decisions were cited but since none of them lays down that the right of cross-examination is a vested or accrued right, it seems unnecessary to examine them in detail. The only case directly in point is the unreported judgment of a Division Bench of this Court of which I was a member, and to which reference has already been made C. No. 853 of 1951 (A)'. That case proceeded on the analogy of appeal and it relied on Delhi Cloth & General Mills Co., Ltd. v. Income Tax Commr., Delhi AIR 1927 PC 242 (E), wherein it was held that a right of appeal becomes an accrued right as soon as the suit or proceeding is initiated, and it cannot be taken away by subsequent repeal.
On further consideration of the matter and for the reasons stated above, I have now arrived at the conclusion that the right of further cross-examination is a mere qualified procedural right which cannot be preserved to a party after the law which conferred the right is amended or another procedural law substantially altering the mode by which the credibility of witnesses should be tested, is substituted in place of the repealed statute. I am of opinion that the analogy of appeal cannot be extended to cases falling under Section 267A(2)(b) of the Hyderabad Code and the rights conferred by it cannot be saved to an accused from after the repeal of the Hyderabad Criminal p. c. (11) For the reasons stated above, the answer to the first part of question No. 1 is in the negative and the second part in the affirmative. In this view, the two remaining questions need not be answered.
12. I concur. The procedure conferring the right of cross-examination merely provides a mode for testing the veracity of a witness. A law which gives to an accused person several opportunities to put him through the test is purely a procedural right which can be substituted by a law either curtailing the number of opportunities or providing another method for testing his credibility. The change does not affect the substantive right which a party seeks to enforce against the other. The repeal of the Hyderabad Criminal P. C., therefore, put an end to the rights of further cross-examination under Section 267A and the proceedings may be regulated thereafter by the provisions of the Indian Criminal P. C. I would also answer the first part part of question No. 1 in the negative and the second part in the affirmative. The other two questions do not arise and need not be answered.
Manohar Pershad, J.
13. I had the privilege of perusing the Judgment prepared by my learned brother Justice Qamar Hasan. I agree. I wish to add a few lines. According to Sub-section (2) of Section 267A, Hyderabad Criminal P. C., the right Of re-cross-examination was given to the accused. The Hyderabad Criminal P. C. stood repealed on 1-4-1951 when the Criminal P.C . (Amendment) Act (Act 1 of 1951) came into force and was made applicable to Part B States. The result is that on 28-11-1951 when the trial commenced in the Court of Sessions, the Hyderabad Code along with Section 267A stood repealed and no proceedings could be taken under the Hyderabad Criminal P. C. The principle underlying is that when an Act is repealed, it is as if it had never existed except with reference to some parts as are saved by the repealing Statute. It cannot be denied that the right of further cross-examination given to the accused is a right but every right is mot a vested right.
The analogy of appeal cannot be extended to cases falling under Section 267A(2)(b) of the Hyderabad Code, for, the right of appeal becomes an accrued right as soon as the suit or proceeding is initiated and it cannot be taken away by subsequent repeal. The right of further cross-examination is a mere procedural right which cannot be held to be given to a party after the law which conferred the right is amended or other procedural law altering the mode is substituted in place of the repealed Statute. In other words, it is procedural law and in procedural law, no person has a vested right vide Mellish L. J. Costa Rica v. Erlanger (1876) 3 Ch D 62 (P).
14. For these reasons, my answer to the first part of question No. 1 is in the negative and the second part in the affirmative. The other two questions do not arise and, therefore, need not be answered. With these replies, the file be sent to the Referring Bench.
Mohammed Ahmed Ansari, J.
15. I agree that the answer to the first part of question No. 1 should be in the negative and the second part in the affirmative, and the other questions need not be answered. I need not repeat the reasons given for the aforesaid answer in the judgments of my learned brother Qamar Hasan, J, and Hon'ble the Chief Justice, with which I entirely agree.
Jagan Mohan Reddy, J.
16. The Legislature by enacting Sub-section (3) of Section 25 of the Criminal P. C. (Amendment) Act (No. 1 of 1951) has expressed a clear intention to apply the procedure laid down in the Indian Criminal P. C, to all pending proceedings. Though the accused in this case was committed to the Court of Sessions before the application of the Indian Criminal P. C., his trial having commenced after the said Act was applied to Hyderabad, the proceedings were pending proceedings within the meaning of Sub-section (3) of Section 25 of the Act.
17. I am in entire agreement with, and have nothing to add to, the views expressed by my Lord the Chief Justice and my learned brothers Qamar Hasan and Manohar Perhad JJ., that the opportunity afforded to an accused of further cross-examination under Section 267-A of the Hyderabad Criminal P. C. is a matter regulating procedure; as such, the provisions of the Indian Criminal P. C. will regulate the procedure at the trial of the accused in this case. In the circumstances, I answer the first part of question No. 1 in the negative, and the second part in the affirmative. In view of the answer to Question No. 1, answers to questions Nos. 2 and 3 do not arise and need not be answered.
18. The answer to first part of question No. 1) of the reference by the Full Bench is in the negative and the second part in the affirmative. The answer to questions Nos. 2 and 3, therefore, do not arise and need not be answered. The case be sent with this answer to the Full Bench.