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Dhruvanathsingh Vs. Shivanaresh Sharma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1710
AppellantDhruvanathsingh
RespondentShivanaresh Sharma
Excerpt:
.....been so declared toy the high court to which that court is subordinate or by the supreme court, the court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the high court. (5) where under this code an appeal lies, but an application for revision has been made to the high court by any person and the high court is satisfied that such application was made under the erroneous belief that no appeal lie?.....and records of the said adarsh khadi gram udhyog mandal, jabalpur, under section 94 of the code of criminal procedure, 1898, vide application, dated 24-9-1973. the trial magistrate allowed the application by an order of the same date directing the respondent to produce the documents and records. as such, the order, dated 24-9-1973 became final.3. on 19-4-1974 the respondent filed an application for dispensing with the production of documents, which were ordered to be produced as per the order, dated 24-9-1973. according to the petitioner, this was an attempt to get the earlier order reviewed. the trial magistrate reviewed the order, dated 24-9-1973, vide order, dated 28-5-1974. against the said order the petitioner filed a revision in the sessions court, which was dismissed by.....
Judgment:

P.K. Tare, C.J.

1. This purports to be a petition under Article 227 of the Constitution of India, for a writ of certiorari against the order, dated 7-12-1974, passed by Shri R. D. Shukla, First Addl. Judge to the Sessions Judge, Jabalpur, in Criminal Revision No. 42 ,of 1974, arising out of the order, dated 29-5-1974, passed in Criminal Case No. 1609 of 1973, of the Court of Shri V.G. Shriwastava, Magistrate, Ist Class, Jabalpur.

2. The respondent filed a complaint against the petitioner for an alleged offence under Section 406, Indian Penal Code read with Section 80(3) of the Madhya Pradesh Non-Trading Corporation Act, 1962, purporting to act as Secretary of the Adarsh Khadi Gram Udhyog Mandal, Jabalpur. The petitioner challenged the constitution, Management and the accounts of the Khadi Gram Udhyog Mandal, Jabalpur, as bogus and fraudulently maintained for the purpose of defrauding the Government with an ulterior motive to get the institution certified and thus to have the regular grants-in-aid from the Government in the name of that bogus institution. The petitioner applied for production of documents and records of the said Adarsh Khadi Gram Udhyog Mandal, Jabalpur, under Section 94 of the Code of Criminal Procedure, 1898, vide application, dated 24-9-1973. The trial Magistrate allowed the application by an order of the same date directing the respondent to produce the documents and records. As such, the order, dated 24-9-1973 became final.

3. On 19-4-1974 the respondent filed an application for dispensing with the production of documents, which were ordered to be produced as per the order, dated 24-9-1973. According to the petitioner, this was an attempt to get the earlier order reviewed. The trial Magistrate reviewed the order, dated 24-9-1973, vide order, dated 28-5-1974. Against the said order the petitioner filed a revision in the Sessions Court, which was dismissed by the impugned order. According to the petitioner, no second revision lies against the revisional order of the Sessions Judge, vide Sub-section (3) of Section 397 of the Code of Criminal Procedure, 1973. Hence this writ petition under Article 227 of the Constitution of India for a writ of Certiorari.

4. The present case was instituted prior to the coming into force of the Code of Criminal Procedure, 1973. The new Code -came into force with effect from 1st April. 1974, Section 484 of the new Code, which relates to repeal and savings is as follows:

Section 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, enquiry 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) ...

(c)...

(d) ...

Therefore, all pending eases on 1-4-1974 are to be dealt with in accordance with the provisions of the Code of Criminal Procedure, 1898. The further question arises whether the right of appeal or revision against such judgments or orders, which are delivered in cases, which were pending on 1-4-1974 are to be governed by the old Code or the new Code. The new Code does not make any provision in this behalf. We may, therefore, refer to the relevant provisions relating to appeals, revisions and references.

5. Section 373 of the new Code, relating to appeals also is as follows:

Section 373.- Appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour.-Any person,-

(i) Who has been ordered under Section 177 to give security for keeping the peace or good behaviour, or

(ii) Who is aggrieved by any order refusing to accept or rejecting a surety under Section 121, may appeal against such order to the Court of Session:Provided that nothing in this section shall apply to persons the proceeding against whom are laid before a Sessions Judge in accordance with the provisions of Sub-section (2) or Sub-section (4) of Section 122.

Section 374 of the new Code is as follows:

Section 374.- Appeals from convictions- (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed may appeal to the High Court.

(3) Save as otherwise provided in Sub-section (2) any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or

(b) sentenced under Section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under Section 360, by any Magistrate may appeal to the Court of Session.

Section 395 of the new Code providing for reference to High Court is as follows:

Section 395.- Reference to High Court.-

(1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared toy the High Court to which that Court is Subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.

Explanation.- In this section, 'Regulation' means any Regulation as defined in the General Clauses Act, 1897, (10 of 1897), or in the General Clauses Act of a State,

(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of Sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.

(3) Any Court making a reference to the High Court under Sub-section (1) or Sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon.

Section 397 of the new Code, relating to revisions, is as follows:

Section 397.- Calling for records to excercise powers of revisions.-

(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 purpose of satisfying itself or himself as to 1 he 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.

Section 399 of the new Code, relating to powers of revision of Sessions Judges, is as follows:

Section 399.- Sessions Judge's powers of revision.- (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 101.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by. way of revision at the instance of such person, shall be entertained by the High Court or any other Court.

Section 401 of the new Code is as under:

Section 401.- High Court's powers of revision.- (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and when the Judges composing the Court of revision are equally divided in opinion the case shall be disposed of in the manner provided by Section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies, but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lie? thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

6. Therefore, the question is whether these sections, relating to appeals and revisions, are applicable to cases pending on 1-4-1974, the trial of which is required to be held according to the provisions of the old Code. There is no doubt that a procedural law can be made to operate retrospectively in the sense so as to apply it to pending cases. But where the Legislature has made a specific pro' vision that all pending cases will be governed by the old Code, we are of the opinion that the old Code alone will apply in respect of appeals and revisions, A right of appeal is a vested right, which cannot be affected adversely unless the Legislature makes a special provision in that behalf. There being no such special provision, the right of appeal will be governed by the old Code and the provisions of the new Code relating to appeals and revisions will apply only to those cases, which were not pending on 1-4-1974, but which have been instituted on 1-4-1974 or onwards. Therefore, we are of the opinion that the bar of Section 397(3) or Section 399(3) of the new Code will not be applicable to such pending oases and the matter will be governed by the provisions of Section 435 and Section 439 of the old Code. As an alternative and efficacious remedy is available to the petitioner, we decline to entertain the writ petition. We would, therefore, direct that this petition shall be registered as a Criminal Revision under Section 439 of the Code of Criminal Procedure, 1898, and the same shall be put up before an appropriate Bench.


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