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Madhab Chandra Naik and ors. Vs. Ashai Devi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in51(1981)CLT144; 1981CriLJ1181
AppellantMadhab Chandra Naik and ors.
RespondentAshai Devi
Cases ReferredBhima Naik v. State
Excerpt:
.....glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ranbir singh 1979crilj318 and contended that this court has clearly gone wrong in indicating that the new code would have no application. there is absolutely no dispute that a litigant has no vested right in any matter of procedure, and alterations in pro-'cedural law are generally retrospective in the sense that they apply to future as well as pending actions......was passed by the magistrate on 13-5-1975 after coming into force of the new criminal procedure code revision therefrom to the sessions court will be governed by the new code, and, as such, a second criminal revision to this court is barred under section 397(3) read with section 399(3) of the new code. it is also contended that right to file a revision is not a vested right and as the impugned order was passed after coming into force of the new criminal procedure code, revisional iurisdiction of the sessions court and of the high court is to be invoked under the new code, not under the old code. this is in accord with the plain reading of the language of sections 397, 398 and 401 of the new criminal procedure code and in conformity with the general doctrine that procedural law is.....
Judgment:

R.N. Misra, Ag. C.J.

1. This revision application under the Code of Criminal Procedure has been filed at the instance of the second party challenging the final order of the Sub-Divisional Magistrate. Bamanehaty, Rairanspur. dated 30th of April, 1977, in a proceeding under Section 145 of the Code holding that the first party was in possession of the disputed property excepting plot No. 60. Aggrieved by this decision of the learned Magistrate petitioners had filed Criminal Revision No. 9-M of 1977 before the learned Sessions Judge of Mayurbhanj and by order dated 10-5-1979, the revision was dismissed. Members of the second party have carried the second revision to this Coun against the original order. When this revision application came up for hearing before one of us, it was contended bv the opposite party that this revision was not maintainable in view of the provisions in Section 397(3) of the Code. In answer to the obieotion, it was contended by petitioners' counsel that as the proceeding had been initiated prior to the coming into force of the new Code, the provision of the new Code did not apply and therefore. the bar indicated in Section 397(3) of the Code did not apply.

Reliance was placed on a single Judge decision in the case of Raghunath Sahu v. Raghunath Panigrahi (Criminal Revn. No. 252 of 1977 decided on 19th January, 1979) (Orissa) of Ray. C.J. and a Bench decision in the case of Damodar Panigrahi v. Banchanidhi Panigrahi (1976)42 Cut LT 842 : 1977 Cri LJ 142. On the other hand, counsel for opposite party relied on the ratio of the Supreme Court decision in the case of Jaeir Singh v. Ranbir Singh : 1979CriLJ318 and contended that this Court has clearly gone wrong in indicating that the new Code would have no application. That is how this revision has been referred to a Division Bench for hearing.

2. The proceeding before the Magistrate was initiated by the preliminary order dated 1-11-1973 while the new Code of Criminal Procedure came into force with effect from 1st April. 1974. Therefore, the proceeding was initiated before the new Code came into force. The proceeding terminated on 30th of April. 1977. after the new Code came into force. Section 484 of the new Code dealing with 'Repeal and savings', as far as relevant, provides:-

(1) The Code of Criminal Procedure. 1898 (V 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 (V 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:

There is absolutely no dispute that a litigant has no vested right in any matter of procedure, and alterations in pro-' cedural law are generally retrospective in the sense that they apply to future as well as pending actions. In the case of Anant Gopal Sheorey v. The State of Bombay : 1958CriLJ1429 , the Supreme Court took the view that Section 342-A of the Code of Criminal Procedure introduced by the Amending Act, 26 of 1955 which indicated that any accused persons would be a competent witness and may give evidence on oath in disproof of the charges, was applicable to a prosecuiion which was pending at the time the Amending Act came into force. It has been said in Maxwell on The Interpretation of Statutes. 12th Edition, at page 222:-

The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode. Alterations in the form of procedure are always retrospective. unless there is some stood reason or other why they should not be.' There is a plethora of precedents referred to in Maxwell for these propositions. In respect of an appeal, the position is different as pointed out by the Constitution Bench of the Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhury : [1967]1SCR317 where it has been stated that the right of appeal is not a mere matter of procedure but is a substantive right. The remedy of revision, however, cannot be equated with that, of an appeal.

In the unreported single Judge decision of Ray, C.J. in Criminal Revn. No. 252 of 1977 (Orissa) (supra), the learned Chief Justice took a contrary view for which there does not seem to be any .justification at all. A Division Bench over which the same learned Chief Justice presided, in the case reported in (197C) 42 Cut LT 842 : 1977 Cri LJ 142 (supra) had before it two questions for determination, namely:-

(a) Whether the present revision directed against the order of the learned Sessions Judge dated 13-5-1975 is governed by the provisions of the new Criminal Procedure Code and, as such, maintainable; and

(b) Whether the learned Sessions Judge had jurisdiction to interfere with the findings of the Munsif rendered in a reference made to him by the trying Magistrate ignoring Sub-section (1-D) of Section 146 of the old Criminal Procedure Code whereunder the finding rendered by a civil Court on a reference made to it under Section 146 of old Criminal Procedure Code, was Bta-tutorily immunised from any review or revision.

Admittedly that proceeding had been taken under the old Code as the preliminary order was dated 15-4-1972. While dealing with the first question posed above, the learned Chief Justice observed:- (at p. 143 of Cri LJ)..It is contended by Mr. B.K. Misra, learned Counsel for the opposite parties that since the final order under Section 145, Criminal Procedure Code was passed by the Magistrate on 13-5-1975 after coming into force of the new Criminal Procedure Code revision therefrom to the Sessions Court will be governed by the new Code, and, as such, a second criminal revision to this Court is barred under Section 397(3) read with Section 399(3) of the new Code. It is also contended that right to file a revision is not a vested right and as the impugned order was passed after coming into force of the new Criminal Procedure Code, revisional iurisdiction of the Sessions Court and of the High Court is to be invoked under the new Code, not under the old Code. This is in accord with the plain reading of the language of Sections 397, 398 and 401 of the new Criminal Procedure Code and in conformity with the general doctrine that procedural law is generally retrospective, that is to say, the new procedure shall govern the proceedings which commenced before such procedure came into force and were continuing on the date of such commencement. This is the exact view of another Bench of this Court in the case of Bhima Naik v. State (1975) 41 Cut LT 674 : 1975 Cri LJ 1923. There is nothing in the saving of Section 484 of the new Criminal Procedure Code to the contrary that the proceeding under Section 145 initiated under the old Criminal Procedure Code will not be entertained under the new Criminal Procedure Code. Therefore, the revision having been filed in the Court of the Sessions Judge from the order of the Magistrate dated 13-5-1975, it must necessarily be entertained under Section 397 of the new Criminal Procedure Code, but it must be disposed of as if the new Criminal Procedure Code had not come into force, as will be discussed hereinafter. The ban provided under Sub-section (2) of Section 397 of the new Criminal Procedure Code would also not be attracted as the final order under Section 145 is not an interlocutory order.

Dealing with the other aspect, namely whether a second revision would lie, the learned Chief Justice continued to say:- (at p. 144 of Cri LJ).

It is clear from the language of these provisions that the prohibition is confined to a second revision application by the same person who filed the revision application before the Sessions Judge. Thus, where a person who filed a criminal revision before the Sessions Court and lost it cannot again come to the High Court in revision....

The reasoning adopted by 4he learned Chief Justice in the Division Bench decision runs counter to the reasonings advanced in the single Judge decision by him: To the extent- it has been stated that the revision its to be under Section 367 of the new Code even in the case of a pending proceeding disposed of after the new Code- came into force, the same is unexceptionable and in our view correct. In paragraph 5 of the reported 4udament, the second question was discussed. The Division Bench came, to the conclusion that the old Code applied for the procedural part and the legal position was concluded by savins:-(at p. 148 of Cri LJ).

Thus considering the various principles enunciated by the aforesaid decisions and keeping in mind the mandatory provisions of Sub-section (2) of Section, 484 of the new Criminal Procedure Code there can be no doubt that a proceeding under Section 145 of old Criminal Procedure Code initiated before commencement of the new Criminal Procedure Code must be continued and completed, or in other words, disposed of in accodance with the provisions of the old law. Thus, if under the old law a finding of the Civil Court accepted by the Magistrate is made unassailable, it has to remajn go even where that pro-r ceeding is impugned in revision or appeal under the provisions of the new Crtanuial Procedure Code. The Sessions Judge has to decide the revision before him in accordance with the limitations imposed under Section 146, Criminal Procedure Code (old). The power of an appellate Court conferred on the Seasions judge urnder Section 399 of the new Criminal Procedure Code must necessarily be subject to the statutory directions contained in Sub-section (2) of Section 484 of the new Criminal Procedure Coda that the 145 proceeding must be disposed of in accordance with the provisions including limitations of the old Criminal Procedure Code....

We have found it difficult to agree with this reasoning. In fact, what has bejen stated as the conclusion in paragraph 7 runs counter to the reasoning already indicated in an earlier part of the iudgmant that Sub-section (3) of Section 397 of the Code would apply to such a revision, Ordinarily, where a Division Bench would differ from the view expressed by an earlier Division Bench. the. matter should go to a larger Bench. We however, do not find the necessity of referring the matter to a larger Bench, as our conclusion is supported by the first part of the judgment of the Division Bench and contrary corns elusions having been reached in the subsequent part of that judgment, the decision seems to have lost its authority. Besides, the ratio of the Supreme Court decisions directly runs jtounter to the principle adopted in the second1 part of the -judgment of the Division Bench. In the case of Jaglr Singh v. Ranbir Singh : 1979CriLJ318 the ambit of Section 484(2) of the new Code of Criminal Procedure was dealt with and the ban under Section 397(3) of the Code was also discussed. The proceeding in that case had admittedly been initiated under the old Code; yet the Court applied the ban under Sub-section (3) of Section 397 to the revision and in clear terms indicated that the new Code applied. There is no scope for holding that for a part of the proceeding. the new Code would apply while for the other part, the old Code would still be attracted, particularly in the absence of a statutory mandate.

3. We were shown a decision of the Madhya Pradesh High Court taking the view as accepted by the learned single Judge in the unreported decision of this Court, but in view of what, we have said above, the law must be taken to be the contrary. This revision application must be held as not maintainable in view of Section 397(3) of the Code of Criminal Procedure in view of the pronouncement in the case of Bhima Naik v. State (1975) 41 Cut LT 674 : 1975 Cri LJ 1923. which even has been approved in the decision in (1976) 42 Cut LT 842 : 1977 Cri LJ 142.

The revision application is accordingly dismissed as not maintainable.

N.K. Das, J.

4. I agree.


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