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Firm Chironjilal Ramjibhai and Co. Vs. Chunarmal Motiram and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1976CriLJ437
AppellantFirm Chironjilal Ramjibhai and Co.
RespondentChunarmal Motiram and Co. and ors.
Cases ReferredUnion of India v. Sukumar Pyne
Excerpt:
.....apply, in the absence of any- thing to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date. it is well recognised that 'no person has a vested right in any course of procedure' (vide maxwell 11th edition, p. it cannot be equated with the right of appeal, which of course as per the well recognised position in law, is a vested right and a subsequent enactment which impairs or imperils such right cannot have a retros- pective effect unless it says so expressly or by necessary implication......order is competent in view of the provisions contained in sub-section (2) of section 397 of the code of criminal procedure, 1973 (hereinafter referred to as 'the new code') which specifically prohibits a revision against any interlocutory order passed in any appeal, inquiry, trial or other proceeding.2. the present revision arises out of the proceedings under section 146 of the code of criminal procedure, 1898 (hereinafter referred to as 'the old code') in the court below which was initiated on the report of the railway police, bilaspur, dated march 28, 1974, whereupon the city magistrate had passed a preliminary order on 8-4-1974 under section 145(1) and an ad interim order of attachment under section 145 (4) of old code. the proceedings thereafter under the orders of the district.....
Judgment:
ORDER

U.N. Bhachawat, J.

1. The only question for deci-sion in this revision is whether the revision which is admittedly against an interlocutory order is competent in view of the provisions contained in Sub-section (2) of Section 397 of the Code of Criminal procedure, 1973 (hereinafter referred to as 'the New Code') which specifically prohibits a revision against any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

2. The present revision arises out of the proceedings under section 146 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Old Code') in the Court below which was initiated on the report of the Railway Police, Bilaspur, dated March 28, 1974, whereupon the City Magistrate had passed a preliminary order on 8-4-1974 under Section 145(1) and an ad interim order of attachment under Section 145 (4) of Old Code. The proceedings thereafter under the orders of the District Magistrate were made over to the Sub-Divisional Magistrate, Bilaspur, who has passed the impugned order on 12-4-1974.

3. A preliminary objection has been raised by the learned Counsel for the non-applicants as to the maintainability of this revision. His contention was that a revision against an interlocutory order is barred under Sub-section (2) of Section 397 of the New Code.

4. In reply, the contention of the learned Counsel for the applicant is that as the report of the police on which the Court below took action was filed on March 28, 1974, i.e., before the coming into force of the New Code, it is a case of pending proceedings to which by virtue of Section 284 of the New Code, the Old Code shall apply. His argument was that the report of the police was nothing but an application before the Court below on which the proceedings have been initiated; it is that application which is pend. ing decision, and, therefore, by virtue of Section 484(2) of the New Code, the revision petition under Section 435 of the Old Code is competent. His other argument was that by virtue of Section 6 of the General Clauses Act, 1897 and Section 5 of the New Code also the right of the applicant to file the present revision is saved despite the. repeal of the Old Code.

5. After hearing the arguments of the learned Counsel for the parties, I am of the firm opinion that this revision has to be dismfssed as not maintainable for the reasons given hereinafter.

6. At the outset, I would like to state that the reliance of the learned Counsel for the applicant on Section 5 of the New Coda is preposterous. This argument need be mentioned to be rejected. The section reads thus;

5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.' On the very reading of this section, it is transparently clear that it saves the special or local law or the special jurisdiction or power conferred or procedure prescribed thereunder. It has absolutely no relevance to the present point in controversy. This section by no stretching can be pressed into service by the counsel for the applicant in support of his contention.

7. I would now turn to Section 6 of the General Clauses Act, 1897. The relevant portion of this is quoted below:

6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not-

(a) ...

(b) ...

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) ...

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;

and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.'

The key expression to attract the applicability of this section is 'unless a different intention appears, the repeal shall not.' It is only when there is no contrary intendment in the Repealing Act, this section would step in otherwise not. It is, therefore, to be seen whether there is anything in the New Code indicating an intention so as to put the aforesaid Section 6 of the General Clauses Act, 1897 out of play. Before I dwell upon this point, I would like to observe that it is a well settled rule of construction that the procedural law is always retrospective unless there is contrary expression in it. This principle means that when an altered procedural law is enacted, it would apply to cases initiated under the Old law from and after the date of its commencement as well as to future proceedings. There is plethora of case law on this point, but the legal position is so well settled that I need not catalogue all of them. I shall, however, refer to the decision of their Lordships of the Supreme Court in Abdul Karim Haji Tayab v. Deputy Custodian-General, New Delhi : [1964]6SCR837 the relevant observations whereof are reproduced below:

It is well settled that procedural amendments to a law apply, in the absence of any- thing to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date. (Para 4) In short the maxim 'nova constitution futuris formam imponere debat, non prateritiC has not the same application to procedural law as it has to the law which deals with rights. This need not be understood that the procedural law would always be retrospective, but it would be so unless either there is an express provision to the contrary or a contrary intendment can be spelled out either from the existence or absence of certain provisions in the altered procedural law. It would be pertinent here to quote the following observations of their Lordships of the Supreme Court in Union of India v. Sukumar Pyne : 1966CriLJ946 :

As observed by this Court in : 1954CriLJ1480 a person accused of the commission of an offence has no vested right to be tried by a particular Court or a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is invoked. It is well recognised that 'no person has a vested right in any course of procedure' (vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Article 20 of the Constitution which makes right to any course of procedure a vested right. Mr. Chatterjee complains that there is no indication in the Amending Act that the new procedure would be retrospective and he further says that this affects his right of appeal under the Criminal P. Q But if this is a matter of procedure, then it is not necessary that there should be a special provision to indicate that the new procedural law is retrospective. No right of appeal under the Criminal P.C. is affected because no proceedings had ever been started under the Criminal P.C.Bearing the aforesaid legal position, I would proceed to consider the relevent provision, namely, Sections 397 and 484 of the New Code.

8. Section 397 of the New Code reads as under:

397. Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purposes of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

On a plain reading of this section, the language whereof is not at all ambiguous, what one finds is that the High Court or any Sessions Judge is empowered to call for and examine the record of the inferior criminal Court situate within its or his local jurisdicton for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of the proceedings of such inferior Court and then it deals with the orders that may bo passed on such scrutiny.

9. Sub-section (2) of the aforesaid section puts an embargo on the powers of the High Court and the Sessions Judge given in Sub-section (1) so far as the interlocutory orders are concerned.

10. Thus on a plain and natural construction of the section one does not find anything in the section which may suggest either expressly or by implication that the bar contained in forequoted Sub-section (2) shall not apply in respect of the interlocutory orders passed in the proceedings which were pending immediately before the coming into force of the New Code. The language of the section posits for its applicability to an order and an interlocutory order of the inferior Criminal Court to say that this bar applies only to the interlocutory orders passed in the proceedings commenced after the coming into force of the New Code would be doing violation to the language of the section.

11. The impugned order is admittedly an interlocutory order of an inferior criminal Court. Thus, in the light of the aforesaid discussion about the interpretation, of Section 397, the instant revision petition falls within the scope of its Sub-section (2). It would be pertinent at this stage to point out that the powers of revision are supervisory powers. No litigant has a vested right of revision. It cannot be equated with the right of appeal, which of course as per the well recognised position in law, is a vested right and a subsequent enactment which impairs or imperils such right cannot have a retros- pective effect unless it says so expressly or by necessary implication.

12. I would now turn to Section 484 which reads as under:

484. Repeal and savings.- (1) The Code of Criminal Procedure, 1898, (5 of 1898), is hereby repealed.

(2) Notwithstanding such 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 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;(b) 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;

(c) any sanction accorded or consent given under the old Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceeding may be commenced under this Code in pursuance of such sanction or consent;

(d) the provisions of the old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution.

(3) Where the period prescribed for an application or other proceeding under the old Code had expired on or before the commencement of this Code, nothing in this Code shall be construed as enabling any such application to be made or proceeding to be commenced under this Code by reason only of the fact that a longer period therefor is prescribed by this Code or provisions are made in this Code for the extension of time.

This section on its plain construction says that the Old Code shall apply to appeals, application, trials, inquiry or investigation pending immediately before the date on which the New Code came into force. It does not tave the old Code for the purposes of appeals, or revision to be filed after the commencement of the New Code may it be against the order passed in those pending proceedings. In view of this clear provision contained in this section, it can unerringly be said that even Section 6 of the General Clauses Act, 1897 does not support the contention of the learned Counsel for the applicant.

13. Thus, the present revision being against an interlocutory order is not maintainable and is accordingly dismissed.


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