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Parashuram Prakash and ors. Vs. State (Special Police Establishment) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1975CriLJ762
AppellantParashuram Prakash and ors.
RespondentState (Special Police Establishment)
Excerpt:
.....is excluded. - the learned counsel places strong reliance on a decision of the madras high court in emperor v. jogesh chandra (1924) 84 ind gas 705 :26 cri lj 353 (cal). in that case the learned judge observed that alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be and a statute dealing with procedure applies prima facie to all actions pending as well as future......clause comes by way of a proviso which provides that every enquiry under chapter xviii of the old code (chapter xviii of the old code deals with committal proceedings} which is pending at the commencement of the code of 1973 shall be dealt with and_ disposed of in accordance with the provisions of the code of 1973. the natural presumption, when a proviso is inserted to a section is that but for the proviso the enacting part of the section would have included the subject-matter of the proviso also. the proviso is also a useful guide in the choice of one or other of two possible construction of words in the enactment or to, lift the mist as to the scope of the lattei in a doubtful case. as stated by kapur j. in i..-t. commr. v, i. m, bank ltd air 1959 sc 713 at p. 717:the proper function.....
Judgment:
ORDER

Chennakesav Reddy, J.

1. The only question that arises in this petition is whether a case properly committed by a competent Magistrate before the Code of Criminal Procedure, 1973 came into force, and now pending is to be tried in accordance with the procedure prescribed for the trial of cases before the Courts of Session, by Chapter XVIII of the said Code or by Chapter XXIII of the Criminal Procedure Code of 1898.

2. The material facts giving rise to this petition which are neither complex nor long drawn out are these. The petitioners are the accused in Sessions Case No. 18 of 1974 on the file of the Court of the First Additional - Assistant Sessions Judge. Vijayawada. On an enquiry held by the IV City Magistrate cum-Special Magistrate, Hyderabad. in P. R. C. No. 8 of 1970, the accused were committed to take their trial before the Court of Session, Hyderabad, by an order dated 4-7-1972 for offences under Sections 120B, 420, 466, 467 read with 471, 3. P. C. The said case was made over to 'the V Additional Assistant Sessions Judge, Hyderabad. Later, on a petition filed by the accused in Cri. M. P. 2168 of 1973 the case was transferred to the file of the First Additional Assistant Sessions Judge, Vijayawada, on the ground of convenience of the parties by an order of this Court dated 7-12-1973. On transfer, ^the First Additional Assistant Sessions Judge, Vijyawada, took the case on file numbered it as Sessions Case No. 18 of 1974 and posted the case for trial from 1-7-1974.

3. The provisions of the Code of Criminal Procedure, 1973, came into force on 1-4-1974. Under the second schedule of the new Code, all the offences for which the accused in this case are to be tried are triable by a Judicial Magistrate of First Class. Therefore, the accused have now filed this petition praying for a direction to the first Additional Assistant Sessions Judge, Vijayawada, to follow the procedure prescribed under Chapter XVIII of the New Code and transfer the case for trial to the Chief Judicial Magistrate, Krishna District under Section 228 of the New Code.

4. The accused in this case were committed to take their trial before the Court of Session on 4-7-1972. It is not in dispute that the commitment then, was proper and by a competent Magistrate. The procedure applicable to cases triable by Courts of Session was prescribed by Chapter XXIII of the Code of Criminal Procedure 1898 (Act 5 of 1898). By Section 484(1) of the Code of Criminal Procedure 1973 (Act 2 of 1974) the Code of Criminal Procedure (Act 5 of 1898) was repealed. The saving clause in the new Code reads:

Section 484(2) Notwithstanding Buch repeal

(a) If, immediately before the Date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then such appeal,, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898 (5 of 1898) as in force immediately before such commencement (hereinafter referred to as the old Code) as this Code had not come into force:Provided that every enquiry under Chapter XVIII of the Old Code which is pending at the commencement of this Code shall be dealt with and disposed of -in accordance with the provisions of this Code.

5. The learned counsel for the petitioners tried to gather great support from the words 'there is any appeal, application, trial, inquiry or investigation pending' in the Section for his submission that the procedure prescribed by Chapter XXIII of the Code of Criminal Procedure, 1898, was inapplicable to the trial of this Case. He submits that there was no 'trial pending' in the case since the trial in a Sessions Case commences only when the charge is read out to the accused and the accused is asked to plead to the charge and not till theft. He argues that since the accused 'in this case had not been asked to plead to a charge framed against them by the Court of Session, the procedure prescribed under the Code of 1898 for the trial of cases before the Courts of Session is not applicable and it is only the procedure prescribed under the new Code of Criminal Procedure, 1973, which is applicable. The learned counsel places strong reliance on a decision of the Madras High Court in Emperor v. John Mclyer AIR 1936 Mad 353 : 37 Cri LJ 637. The question that arose in that case was what was the proper time for raising the plea of autre fois acquit under Section 403, Cr.P.C. In fact, in that case the plea was raised by the counsel for the accused in the Sessions Court after the charge had been. read over to the accused and before the accused had pleaded to the charge. T.he-contention on behalf of the Crown was that the plea was raised before the Sessions Trial began. The learned Judge observed:

There is no rule of practice denning the proper time for raising a plea of autrefois acquit in this country. The artificial English Rule against pleading double is certainly not to be applied. Section 403(1), simply lays down the rule on which a plea of autrefois acquit or convict is founded; and' it would seem that the rule could be invoked by an accused person at any stage of the proceedings. However, that may be, I think that in the present case the plea was taken at the appropriate time. The trial had com-: menced and the plea of autrefois acquit was raised before the accused pleaded to the charge.

Therefore, the real question for decision in that case was as to the proper time for pleading autrefois acquit in sessions trial. Therefore, that decision can easily be distinguished on the facts of that case. The next decision relied on was Raiib Lochan v. Jogesh Chandra (1924) 84 Ind Gas 705 : 26 Cri LJ 353 (Cal). In that case the learned Judge observed that alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be and a statute dealing with procedure applies prima facie to all actions pending as well as future.

6. The Supreme Court in Ananta Gopal Sheorey v. State of Bombay : 1958CriLJ1429 observed that a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. There can be no controversy about these general principles of applicability of procedural law. The saving clause of the New Code lays down that notwithstanding the repeal of the Code of Criminal Procedure, 1898, if any appeal, application, trial, inquiry or investigation is pending immediately before the date on which the New Code comes into force then such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898. An exception to this clause comes by way of a proviso which provides that every enquiry under Chapter XVIII of the Old Code (Chapter XVIII of the Old Code deals with committal proceedings} which is pending at the commencement of the Code of 1973 shall be dealt with and_ disposed of in accordance with the provisions of the Code of 1973. The natural presumption, when a proviso is inserted to a section is that but for the proviso the enacting part of the section would have included the subject-matter of the proviso also. The proviso is also a useful guide in the choice of one or other of two possible construction of words in the enactment or to, lift the mist as to the scope of the lattei in a doubtful case. As stated by Kapur J. in I..-T. Commr. v, I. M, Bank Ltd AIR 1959 SC 713 at p. 717:

The proper function of a proviso is that it qualifies the generality of the main, enactment by providing an exception and taking out as it were, from the main enactment, a portion which but for the proviso would fall within the main enactment.

The scope of the saving clause in the Code is made clear by the Parliament by the insertion of the excepting proviso. The effect of the excepting proviso is to texcept the applicability of the provisions of .the Code of 1898 only to enquiries pending by the date of commencement of the New Code. It is thus plain that the provisions of the1 New Code will not be applicable to cases where the enquiries have been completed and the accused have been committed. In other words, the trial in pursuance of order of committal made prior to the commencement of the New Code shall be under the provisions of the Code of 1898.

7. Now the scheme of the Code-may also be examined and ascertain the 'intent of them that make it.' Section 193 of the Code of Criminal Procedure 189& occurring in Chapter XV, headed 'of the jurisdiction of Criminal Courts in inquiries and trials' ^enacts, that no Court ot Session shall take cognizance of any offence in exercise of its original jurisdiction unless the accused is committed to it by a Magistrate duly emppwered in that behalf. $ The word 'inquiry' is denned under Section 4(1)(k) of the Code. But. the term 'trial' is not defined in the Code itself. Chapter XVIII of the Code specifies the procedure to be followed in- the preliminary enquiry by the Magistrate. The chapter is headed 'of inquiry into-cases triable by the Court of Session or High Court.' Under Section 207-A(6) the Magistrate is empowered to discharge an accused person if no prima facie case is made out against him. Section 207-A(14) provides that when the accused is committed for trial, the Magistrate, shall issue an order to such person as may be-appointed by the State Government i this behalf, notifying the commitment, and stating the offence in the same forms as the charge; and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session. Chapter XXIII deals with the procedure to be followed by a Court of Session in the trial of cases committed to it under Chapter XVIII. Chapters XX to. XXII provide the procedure to be followed by the Magistrate in the. trial of cases by them. The Code has thus drawn> a clear distinction, betweeri cases triable exclusively by a Court of Session or High Court and other Criminal Courts.

8. When the preliminary inquiry prescribed by Chapter XVIII is completed, and the accused is committed for trial before the Court of Session, the Court of Session gets the requisite jurisdiction under Section 193. Cr.P.C. to try the case. Then all that is pending is the 'trial' of the case ending in conviction or acquittal. In this case, the accused having been committed even by 3-4-1972, there was only the trial before the Court of Session that was pending by the date on which the New' Code came into force. The date for the trial also had been fixed in the case. As observed1, by the Supreme Court in the State of Bihar v. Ram Naresh Pandey AIR 195? SC 389 : 1957 Cri LJ 567:

The words 'tried' and 'trial' appear-to have no fixed or universal meaning. No doubt, in quite a number of .sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry.' That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should Jiecessarily be limited in their connotation and significance. They are words which.must be considered with regard to the particular context in which they ,are used and with regard to the Scheme and purpose of the provision under consideration.

Both the words 'trial' and 'inquiry' occur in the saving clause of the New Code, The context in which the word 'trial' is used should be intended to include the stage after the inquiry and committal in cases exclusively triable by Courts of Session, The word 'inquiry' has been -defined in the Code to include every inquiry other than a trial. The inauiry and committal having been over in this case, it must be held that the trial was pending in the case by the date the New Code came into force. I have, therefore, no hesitation in holding that the procedure applicable to the case is only the procedure prescribed for the trial of sessions cases in Chapter XXIII of the Code of Criminal Procedure, 1898.

9. In the result, the petition fails and it is accordingly dismissed.


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