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Surya Mani Tewari Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1977CriLJ845
AppellantSurya Mani Tewari
RespondentState of U.P.
Excerpt:
.....provides that where a trial is pending immediately before the commencement of the new code, it shall be proceeded with in accordance with the provisions of the old code as if the new code were not in force......issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this code.clause (b) of section 484(2) of the new code causes a legal fiction that although for certain purposes action has been taken under the old code but it shall be deemed to have been taken under the new act. this clause nowhere provides that the sentence in a criminal trial which had been commenced under the old code and was pending on the date of commencement of the new act, would have to be passed in accordance with the new code.8. in order to appreciate the contention of the learned counsel for the applicant, it may be mentioned that by sub-section (1) of section 484 of the new code, the code of criminal procedure, 1898, was repealed, sub-section (2) of section 484 is, however, a.....
Judgment:

K.G. Agarwal, J.

1. This is an application under Section 482 Criminal P.C. for reviewing the judgment of this Court passed by me on 14-12-1976, rejecting the criminal revision filed by the applicant in limine.

2. Sri B.P. Gupta, learned Counsel appearing for the applicant in this case, urged that as the Magistrate did not comply with the procedure prescribed by Section 248 of Chapter XIX of the Criminal Procedure Code, 1973, therefore, the sentence awarded to the applicant was illegal and was liable to be quashed. The material portion of Section 248, on which reliance was placed by the learned Counsel for the applicant, in support of his submission, is quoted below:

(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.

3. Admittedly, in the instant case the applicant was not given an opportunity of hearing on the question of sentence in accordance with the procedure prescribed by this Section before the same was passed upon him by the Magistrate, Sri V.P. Goyal, learned State Counsel, however, controverted the above submission of the learned Counsel for the applicant and urged two contentions in support of his submission. The first contention was that the application under Section 482 Criminal P.C. was not maintainable. The second argument advanced on merits by him was that Section 484(2)(a) of the New Code clearly requires a criminal court to decide the cases pending on the date of enforcement of the New Code to be decided and concluded in accordance with the provisions of the Old Code. Accordingly, the provisions of Section 248 Criminal P.C. contained in Chapter XIX of the New Code did not apply to the facts of the present case and, therefore, non-compliance of the same by the Magistrate did not vitiate his judgment.

4. After hearing counsel for the parties, I do not propose to go into the preliminary question raised by the learned Counsel for the State in this case, although prima facie there appears to be substance in it as well.

5. Coming to the merits, it may be relevant to quote clause (a) of Sub-section (2) of Section 484 of the New Code in order to appreciate the argument of the learned State Counsel. It reads as under:

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, as in force immediately before such commencement (hereinafter referred to as the Old Code), as if this Code had not come into force:

Provided that every inquiry 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.

6. Before proceeding with the interpretation of the aforesaid clause, it may be noted that the learned Counsel appearing for the applicant admitted before me that the case was pending trial under Chapter XIX of the Old Code at the time when the New Code came into force. A careful scrutiny of Clause (a) of Section 484(2) would show that in making this provision the legislature clearly provided that every inquiry, trial or investigation, which was pending before the date on which the New Code came into force, shall be disposed of and continued in accordance with the provisions of the Old Code as in force immediately before such commencement as if the New Act had not come into force. As the proceedings under Chapter XIX of the Old Code were pending on the date of commencement of the New Act, which were relating to the trial of the case, in my opinion, Section 484(2)(a) of the New Code clearly applied to the facts of the present case and the Magistrate was justified in concluding the enquiry in accordance with the Old Code. Section 248 of the New Act, in these circumstances, was not applicable to the facts of the present case. Section 248 is contained in Chapter XIX of the New Code dealing with the trial of warrant cases by the Magistrate. It is to. be found in Sub-Chapter 'C the heading of which is 'Conclusion of Trial. This Sub-Chapter, to my mind, will apply only when the trial has been commenced under Sub-Chapter 'A' of Chapter XIX or Sub-Chapter 'B' of Chapter XIX of the New Code. This will have no application to a case which had commenced under the Old Code and was pending at the trial. The language of Sub-section (2) of Section 248 does not lead to any other conclusion. It has been very clearly said that where, in any case, under this Chapter, the Magistrate does not proceed in accordance with the provisions of Section 325 or Section 360, he would be required to give an opportunity to the accused of hearing before passing sentence upon him. As the offence in the instant case was not tried under the New Code, there was no occasion for the trial Magistrate either to apply Section 248 of the New Code to the present case and to call upon the accused before passing the sentence upon him.

7. Reliance was placed by the learned Counsel for the applicant on a decision of the Supreme Court in Mr. Boucher Pierre Andre v. Superintendent, Central Jail. Tihar, New Delhi : 1975CriLJ182 , in support of his proposition that Clause (b) of Section 484(2) will apply to the instant case. Before dealing with the said case, I would like to observe that the aforesaid clause (b) of Section 484(2), in my opinion, is not applicable to the present case. Emphasis was laid by the learned Counsel for the applicant on the words 'sentences passed', and it was urged that as the sentence, ultimately, was passed under the Old Codes, the same would be deemed to have been passed under the New Code and, therefore. Section 248 applied. I am unable to accept the submission made by the learned Counsel for the applicant. Sub-clause (b) of Section 484(2) of the New Code is extracted below:

all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code.

Clause (b) of Section 484(2) of the New Code causes a legal fiction that although for certain purposes action has been taken under the Old Code but it shall be deemed to have been taken under the New Act. This clause nowhere provides that the sentence in a criminal trial which had been commenced under the Old Code and was pending on the date of commencement of the New Act, would have to be passed in accordance with the New Code.

8. In order to appreciate the contention of the learned Counsel for the applicant, it may be mentioned that by Sub-section (1) of Section 484 of the New Code, the Code of Criminal Procedure, 1898, was repealed, Sub-section (2) of Section 484 is, however, a saving provision. Clause (a) of this Sub-section provides for certain proceedings mentioned therein to be continued and concluded in accordance with the provisions of the Old Code despite the coming into force of the New Code, whereas Clause (b) lays down that all notifications, published, proclamations issued and sentences passed shall be deemed to have been published or made under the corresponding provision of the New Code. Under the Common Law Rule, the consequences of repeal of a Statute are very drastic, except as to transactions passed and closed. The effect of repeal is to destroy all causes of action that may have arisen under the repealed Statute. But Clauses (c) to (e) of Section 6 of the General Clauses Act prevent the obliteration of a Statute in spite of its repeal to keep intact rights acquired or accrued and to permit continuance or institution of legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. In the instant case, however, it appears that it may not be necessary to take recourse to the provisions mentioned above of the General Clauses Act inasmuch as the Legislature has provided in Clause (a) of Sub-section (2) of Section 484 in very clear terms a saving provision. As a result of the saving clause, the trial, enquiry or investigation pending on the date of enforcement of the New Code, which are. covered by the aforesaid clause, can be continued and concluded in accordance with the provisions of the Old Code irrespective of the fact that the New Code had come into force. As observed in Halsburys Laws of England, 3rd Edition, Vol. 36, at page 401 'the saving clause preserves something which would be otherwise included in the words of the enacting part' Clause (a) of Sub-section (2) of Section 484 of the New Code, in my opinion, clearly applies to the instant case inasmuch as, admittedly, on the date when the New Act came into force the proceedings under Chapter XIX Were pending before the court.

9. So far as Clause (b) of Sub-section (2) of Section 484 is concerned, the same is inapplicable inasmuch as it has a different object and different purpose for which it was enacted. Counsel for the applicant, however, laid stress on the words 'all sentences passed', and urged that as all sentences passed under the Old Act have to be treated as passed under the New Code, the provision regarding the giving of opportunity of hearing before passing of the sentence had to be complied with in order to bring the same in conformity with the provisions of the New Act. To me, the Submission appears to be untenable. As observed above, Clause (b) has a limited object of treating the various acts done under the Old Act as one under the New Act. So far as the case of Mr. Boucher Pierre Andre (supra) relied upon by the learned Counsel for the applicant is concerned, it may be observed that the question involved for decision in that case before the Supreme Court was different than the one which arises for consideration in the present case. The law laid down in that case is of no assistance to the applicant. In my opinion, the provision by which we are governed is Clause (a) of subsection (2) of Section 484 of the New Code.

10. Reference in this connection may be made to two recent decisions of the Supreme Court. One of them is reported in Natabar Panda v. State of Orissa : AIR1975SC1465 . In this case the accused claimed the benefit of the New Code in respect of a case which was being investigated under the Old Code. The Supreme Court negatived the claim of the accused laying down that in a case in which investigation was pending on the date of coming into force of the New Code, the accused could not press into service the provisions of the New Code. The second case is an unreported decision of the Supreme Court given in State of Karnataka v. K.H. Anne-gowda (Criminal Appeal No. 361 of 1975, decided on S-12-1.976) (Since reported in 1977 Cri LJ 220) (SC). The observations made by the Supreme Court in this case which are helpful for our purposes, are being extracted below:

This contention was, however, not pressed at the hearing of the appeal before us and it was conceded, and in our opinion rightly, that the earlier case before the Sessions Judge was governed by the provisions of the old Code and the new Code had no application to it. Section 484 of the new Code clearly provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force. Here in the present case the judicial Magistrate had already made an order of committal on 15th March, 1974. The case, therefore, already before the Court of Session prior to 1st April 1974 and it was pending before that court for trial on 1st April, 1974, when the new Code came into force, It is immaterial as to when the case was actually registered and a number given to it. Since the case was pending for trial before the Sessions Court on 1st April, 1974, it was liable to be tried in accordance with the provisions of the old Code....

11. As observed above, the scheme of the New Act also lends support to the view taken by me. It would he noticed that Chapter XIX, which deals with the trial of warrant cases by the Magistrate, has been divided into three parts. The heading of Part A is 'cases instituted on a police report' whereas that of Fart B is 'Cases instituted otherwise than on police report.' Part-C deals with 'Conclusion of trial'. This part applies to the trials which are done in accordance with the various provisions made in Parts A and B. Part-C is a part of Chapter XIX and will apply only to those trials which are conducted and concluded in accordance with the various provisions of Parts A and B. It cannot be independently applied to trials which are not done under this Chapter. In fact, these Parts are knit together and have to be lead together for the purposes of giving effect to the intention of the Parliament. The language employed by the Legislature in Section 218 also lends support to the view expressed above. In my view, Section 248 is a provision relating to the mode of trial and, as such would apply when the trial is done in accordance with the provisions of Chapter XIX of the New Code. The fact that giving an opportunity is a mode of trial! is borne out from the observations made by the Supreme Court in the case of Santa Singh v. State of Punjab AIR 1976 SC 2386 : 1976 Cri LJ 1875. If the submission of the applicant's counsel is accepted then the applicability of the provision cannot he restricted only to pending trials but also to cases which had already been decided before the coming into force of the New Act, which is never intended by the Parliament.

12. For the reasons given above, I do not find any substance in this application for review, which is, accordingly, rejected.


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