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Ram Singh Vs. the Crown - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana
Decided On
Judge
Reported inAIR1950P& H25; 1950CriLJ459
AppellantRam Singh
RespondentThe Crown
Cases ReferredColonial Sugar Refining Co. Ltd. v. Irving
Excerpt:
.....been chosen, they went on to hold that the right of trial by a jury vested in tbe accused by the criminal procedure code of 1898 was a substantive right and not a mere matter of procedure and, therefore, where the commitment was made prior to the coming into force of the new code of 1923, but the trial in the sessions court was held after its coming into force, the accused's right of trial by jury was not lost. the general priaoiple is that a statute is not to be construed to have a greater retrospective operation than its language renders necessary, and that no person has a vestsd right in any course of procedure, and therefore, alterations in procedure are to be retrospective unless there is some good reason against it, 6. the present case is the converse of that case in the sense..........not competent to try as jurors- the trial was pro-trastod and while it was actually going on the code of criminal procedure of 1882 came into force, it being provided in section 2g9 thereof that where on a trial some charges are triable by a jury and others are not ordinarily so triable, all the charges should be tried by a jury. it wast also provided in the same act, that the provisions of the act were to be applied, as far aa may be, to all cases pending in any criminal court on 1st january 1883. in the circumstances tha sessions judge converted the persons empanelled as assessors into jurors in respect of the charge3 they commenced to try as assessors. it was held by a division bench that by virtue ol section 6, general clauses act, the trial must be conducted under the rule 3 of.....
Judgment:
ORDER

Falshaw, J.

1. Ram Singh alias Kundan Singh haa been convicted by the Sessions Judge, Ludhiana, Under Section 802, Penal Code, for the double murder of Diwan Bahadur Diwan Pindi Daaa Sabharwal and his wife Shrimati Parvati Devi, ancl sentenced to death. He has appealed and his eaBe is also before us for confirmation of the death sentence.

2. At the outset the legal objeotion has been raised that the trial in the Court of the Sessions Judge was illegal. The grounds on which this objection is based are as follows;

3. Since 20th March 19-17 the Punjab Public Safety Act, II [2] of 1947, has been in force at first in the United Punjab, and Eince the partition in the East Punjab. Section 2 (b) of this Act reads, 'dangerously disturbed area means any area declared as such by notification, by the Provincial Government, or any part thereof'. Under this provision the municipal area of Ludhiana was declared to bo a dangerously disturbed area by the Punjab Government by Notification No. 1516 dated 20th March 1947, and subsequently by Notification No. 1O1-BG/47/175, dated 23rd August 1917 and published in the Gazette of 29th August 1947, the East Punjab Government declared as dangerously disturbed areas all districts in the Jullundur Division except Kangra. This included the district of Ludhiana. Under the Act the declaration of an area as dangerously disturbed involved certain changes in the procedure for the trial of orimi-nal cases whiuh are contained in chap. IV, ths relevant portions of which read as follows :

35. (1), All offences under this Act, or under any other law for the time being in force in a dangerously disturbed area, and in any other area all offences under thia Act and any other ofienoe under any other law which the Provincial Government may certify to be triable under this Act shall be tried by the Courts and according to the procedure prescribed by the Code:

Provided that in all cases the procedure prescribed for the trial of flntnmons cases by Chap. XX of the Code shall be adopted, subject in the case of summary trials to the provisions of Sections 263 to 265 of the Code. 37. For the purpose of trials under thia Acti tha Code shall be deemed to have been amended as follows:

(1)(i) For Sections 208 to 220 inclusive the following shall be deemed to have been substituted, namely :

When it appears 'from a police report that the. offence is one triable exclusively by a Court of Session or one whioh in tha opinion of the Magistrate ought to be tried by such Court the Magistrate shall on perusal of the police report or when the accused appears or Is brought before him, make over the ca38 to the Sessions Court having jurisdiction and shall forward the accused if in custody and shall send all polios reports relating to the ease to that Court; and that Court shall thereupon proceed with the trial of the case following tho prooedure for the trial of summons oases.(ii) All references in the Code to commitment shall be deemed to refer to the action prescribed by this seotion.

(2) Section 268 and Section 850 of the Code shall ba deemed to have been omitted.

It may be mentioned that Sections 208 to 220, Criminal P.C., comprise all exeapfc the first two sections in chap. XVIII which ia headed, 'Of enquiry into oases triable by the Court of Session or Eigh Court,' and 8. 268 occurs in Chap. XXIII, which is headed, 'Of trials before High Courts and CourL$uf Session,' and it is prescribed therein that all trials before a Court of Session shall be either by jury, or with the aid of assessors. In other words in an area deolared to be dangerously disturbed all cases triable by tha Court of Session, or whioh a Magistrate on perusing the police papers thought should be tried by a Court of Session, were to be sent by the Magistrate direct to the Court of Session with a simple order Under Section 87 (1)(i), the ordinary provisions regarding commitment proceedings being done away with altogether, and in the Sessions Court the cases were to be triad by the Sessions Judge according to the procedure pre-scribed for the trial of summons cases and without the aid of assessors or a jury. The present case, being Under Section 302, Ponal Code, and therefore ordinarily triable by Court of Session, was quite rightly sent by the Magistrate in whoae Court the ohallan was first presented to the Court of the Sessions Judge by an order dated 30th September 1918 which reads:

Commitniont Order,

This is ft ohallan Under Section 302, Penal Code, against Bum Singh alias Kandan Singh......Under Section 37, Public Safety Act 1947, this oaaa is exclusively triable by the Sessions Court as a summons ease. The accused is, therefore, oomraitted to the Court of Session at Ludhiana to stand his trial for the offence above-mentioned. Calendar of witnesses is eaolosed.

The actual trial, howover, in the Court of the Sessions Judge did not start until 18th November 1948, and in the meantime in the East Pun-jab Governmont Gazette o 29th October 1948 Notification No. 7146 H dated 22nd October had appeared to the following effect :

In exeroise o the powers oonferred by el. (b) of Section 2, Punjab Publio Safety Act, 1947, and all other powers enabling him in this behalf, the Governor of East Punjab is hereby pleased to cancel the following notifications.

Then follow3 a list of four notifications inoluding the two to which I have referred above declaring the municipal area and the district of Ludhiana to be dangerously disturbed areas. The learned Sessions Judge proceeded with the trial of the case on 18th November 1948 and following days in accordance with the procedure prescribed for the trial of summons cases, and it was only after the defence evidence had closed and the case was at the stage of arguments on 26th November that the objection was raised on behalf of the accused that in consequence of the faot that the district of Ludhiana had ceased to be a dange. rously disturbed area by the notification appearing in the gazette of 29th October 1948 the regular procedure for the trial of Sessions cases ought to have been followed. The learned Sessions Judge in a separate order dated 27 th November rejected this objection principally on the grounds that the offence had taken place within the limits of the district while it was atill a dangerously disturbed area and the case had been committed to the Sessions Court on 30th September before the notification cancelling the previous notification had appeared, and he then proceeded to record his judgment on the merits of the case oonvicting and sentencing the accused to death.

4. The learned Counsel for the appellant has again raised the objection that onoa the district of Ludhiana had ceased to be a dangerously disturbed area, since the offence was not one under the Punjab Public Safety Act or any other law certified by the Provincial Government to be triable under the Aot, the ordinary provisions of the Criminal Procedure Code regarding commitment proceedings and the procedure for the trial of sessions cases with the aid of assessors at once came into force again and, therefore, ought to have been followed. In fact, it is his case that the order of the Magistrate forwarding the case to the Sessions Court Under Section 87 (1) of the Act dated 30th September 1948 even though it was legal at the time it was passed, had become illegal, and the case ought to have been sent back by the learned Sessions Judge for proper commitment proceedings. It is obviously to be regretted that the point was not raised in the lower Court until after the voluminous evidence of 37 prosecution witnesses and 2 defence wit-nesses had been recorded, but although the point might well have been raised at an earlier stage than that at which it was raised, it is a point which obviously has to be dealt with at whatever stage it is raised, and moreover it is a point which is bound to arise in connection with several other appeals pending in this Court in cases in which it has never yet been raised at all. The position adopted on behalf of the Crown is that once the case was legally committed to the Sessions Court by an order Under Section 37 (1)(i), Public Safety Act, it was quite legal for the learned Sessions Judge to continue with the trial according to the further provisions of the section in spite of the faot that the district had ceased in the meantime to be a dangerously disturbed area. The learned Advocate-General relied in support of his contention chiefly on the provisions of Section 6 (e), General Clauses Act X [10] of 1897, and the similar provisions contained in 8.1, Punjab General Clauses Act. Section 6, General Clauses Act, begins with the words

where this Aot, or any Central Act or Begulation made after the commencement of this Aot, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--

and Sub-section (e) reads,

effect any investigation, legal proceeding or remedy in respect of any suoh light, privilege, obligation, liability, penalty, forfeiture or punishment aa aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any suoh penalty, forfeiture or punishment may be imposed as if the -repealing Aot or Eegulation bad not been passed.

The opening words of Section 4, Punjab General Clauses Act, I [l] of 1898, are:

Where this Aot or any Punjab Aot repeals any enatitment then, unless a different intention appears, the tepeal shall not

and the words of Sub-section (e) are identical with those of the Sub-section in the Central Act except that the words 'or Regulation' are omitted. It is contended that the cancellation of the notifications declaring the town and District of Ludhiana to be dangerously disturbed areas is tantamount to the repeal of the relevant provisions regarding procedure contained in the Public Safety Act, and that since the present Case was a legal pro-ceeding which was pending at the time of the repeal the case could be continued aa if the repeal had not taken place. In support of this reliance is placed on the obvervafcion of Spens 0. J., in the case reported as Piare Dusadh v. Emperor A.I.R. (si) 1944 P. o. l : 45 Cr.L.J. 418, to the effect that on the principle embodied in 13. 6 (e) the result of the repeal of an enactment on cases pending at the time of the repeal would be that they would continue as if the enactment had not been repealed. It was, however, further observed that this is subject to the qualification that the repealing enactment contains no provision or indication to the contrary. The reply to this argument, however, appears to be that in tha first place a'notifieation Under Section 2 (b), Public Safety Act, cancelling a previous notification under the same section is not in any sense a repealing Act, and in fact the Publio Safety Act atill remains in force, and in the second place, even if such a notification were to be treated as equivalent to a repealing Aot no void was left in the law relating to procedure, since the effect of the repeal was the immediate restoration of the relevant provisions of the Criminal Procedure Code. The main point of contention appears to be whether the General Clauses Act in any way affects mere changes in procedure or in other words whether either party, the prosecution or the accused, has any 'right in any particular form of procedure within the meaning of the word used in B. 6 (e) of the Central Act and Section 4 (e), Punjab Act. Three cases have been cited which actually relate to Sessions oases. The first of these, which was cited by the learned Advocate General, is Srinivasachari v. The Queen 6 Mad. 336. The facts in that case were that a number of accused were on trial on charges of which some were at the time the trial commenced triable by a jury and others were not so triable and in accordance with the practice then obtaining, the jurors were empanelled as assessors in respect of tbe charges they were not competent to try as jurors- The trial was pro-trastod and while it was actually going on the Code of Criminal Procedure of 1882 came into force, it being provided in Section 2G9 thereof that where on a trial some charges are triable by a jury and others are not ordinarily so triable, all the charges should be tried by a jury. It wast also provided in the same Act, that the provisions of the Act were to be applied, as far aa may be, to all cases pending in any criminal Court on 1st January 1883. In the circumstances tha Sessions Judge converted the persons empanelled as assessors into jurors in respect of the charge3 they commenced to try as assessors. It was held by a Division Bench that by virtue ol Section 6, General Clauses Act, the trial must be conducted under the Rule 3 of procedure in force at the commencement of the trial, The second case, also cited by the learned Advocate General, is Emperor v. Fitsmaurice A.I.R. (12) 1925 Lab. &&6 : 27 Cr.L.J. 421. The facts in that case were that a European Quarter-Master Sergeant was prosecuted along with an Indian accused on charges under Bs, 420 and 477-A, Penal Code, and on his first appearance before the commit ting Magistrate on 7th May 1923 the Quarter-Master Sergeant claimed to be tried aa a European. The commitment order was passed on nth June 1923, when the provisions of chap. XXXIII, Criminal P.C. of 1898, relating to trials of Euro-pean British subjects by jury were in force, but this right was taken away by Act XII [12] of 1923, which came into force on 1st September 1923. Tbe trial came on in the Court of an Additional Sessions Judge in October 1923 and afteu that the objection was raised on behalf of the prosecution that the accused was no longer en-titled to trial by a jury but should be tried only with assessors. This contention was overruled by the Additional Sessions Judge on the ground that the trial had commenced from the date of commitment, i. e. before Act xil [12] of 19E8 came into force, but although this view of the law was overruled by Zafar Ali and Scott-Smith JJ., who held that clearly the trial of an aooused person in the Court of Session only begins when he appears in that Court, and after the assessors or jurors have been chosen, they went on to hold that the right of trial by a jury vested in tbe accused by the Criminal Procedure Code of 1898 was a substantive right and not a mere matter of procedure and, therefore, where the commitment was made prior to the coming into force of the new Code of 1923, but the trial in the Sessions Court was held after its coming into force, the accused's right of trial by jury was not lost. On the other hand the learned Counsel for the appellant baa cited the Full Benoh decision reported as Shreekant Pandu-rang v. Emperor A.I.R. (80) 1943 Bom. 169 : 14 Cr.L.J. 616 F.B. In that oase a number of accused were arrested on 6th September 1942 and on 5th October they were produced in the Court of a Magistrate. As some of the charges against them were exclusively triable by Court of Session the Magistrate on 31st ootober committed the accused for trial in the Court of the Sessions Judge of Thana, where cases were triable with a jury. The Special Criminal Courts Ordinance II [2] of 1912 was applied to the Province of Bombay iiom 26th ootober and on 7th December the Government of Bombay made an order Under Section 6 of the Ordinance directing the Assistant Judge of Thana, who was a Special Judge ap-pointed under the Ordinance, to try the accused. Borne revision applications filed on behalf of the accused in the High Court at Bombay were dealt with by a Full Bench consisting of Beaumont C. J. and Divatia and Wesfcon JJ. We are not concerned with the portion of their judgment dealing with the attack which was made on the validity of the Special Criminal Courts Ordinance as a whole but only with the contention raised on behalf of the acoused that the provisions of the Ordinance oould not be applied to their case after it had been committed to the Sessions Court in the ordinary way. On this point Beaumont C. J., observed ;

To my mind, any ease oc offence which ia awaiting trial can be placed for trial before a Speoial Judge. If the trial had commenced difficulty might arise, but in the present ease the trial had not commenced. It is not necessary to express any opinion aa to whether a case can be put before a Speoial Judge, the trial of which has already commenced in one of the ordinary Courts. But if the trial baa not commenced, it seems to me plain, that Under Section 5, the ease can be placed before a Special Judge, and I see no reason why thi3 Court should not give efieot to the plain and natural meaning of the words used. Tho view of the Patna High Court, with which the other High Courts seem to agree, that a case cannot be transferred after the Magistrate has taken cognizance, is based on the ground that the Ordinance must bo construed so aa not to interfere with vested rights, and if that view ia wrong, alI think it ia, the basis oi the deoision falls to the ground.

The matter is more fully dealt with in his judgment by Divatia J. who has observed :

On the second point about the applicability of the Ordinance to the present case, the contention on behalf of the petitioner ia that although the Ordinance relates to criminal procedure, it cannot divest the accused of certain vested rights which they had when the Government order applying the Ordinance to the present case was made. The contention is that certain rights relating to the trial, viz., trial by jury, the right of appeal in oaae of oonviotion and even the right of bail throughout the pendency of the criminal proceedings, are substantive and vested rights in the acoused which oould not be taken away by changing the procedure after the commencement of the criminal proceedings. On this point reliance haa been placed not only in the arguments before us but also in the several judgments recently given by other High Courts on the analogy between civil actions and criminal proceedings. It may be taken as established that a right of appeal, a light to be tried by jury and even a right to get bail are substantive rights. The question, however, is at what stage they would come into existence in the sense of being such vested rights aa cannot be taken away by subsequent legislation. The analogy of trial of oivil cases on that point does not seem to me to be quite appropriate. As held in Colonial Sugar Refining Co. Ltd. v. Irving 1905 A. C. 369 : 74 L. J. P.C. 77, It ia quits true that the right to appeal would begin on the date of the trial of the oivil auit, and to the same) effect ia the deoision of the Calcutta High Conrt in Sadar AU v. Datimuddm 56 Gal. 512 : A.I.R. (15) 1928 Cal. 640 F.B., in which it is observed that a suit, appeal aud second appeal are really but steps in a series of proceedings connected by an intrio&te; unity. When we oome, however, to the application of this principle to criminal cases, the difficulty is that it is not in every criminal case that the trial begins when cognizanoa of the complaint is taken by a Magistrate. In cases which could be tried by a Magistrate, the trial may begin when cognizance was taken but in e&sea; which are exclusively triable by a Court of Session the trial doea not begin unless and until an order of commitment ia made. AU the previous proceedings before the commitment are stagea of enquiry at the end of which tha aooused may or may not be committed. It is only if the accused is not tb.ua diBoharged either Under Section 209 or Under Section 213, Sub-section (2), that the order of oommit-ment to the Sessions Court is made, and thereafter the trial takes place. It is really when the trial begins that the right to be tried by a jury and the right of appeal might arise. Till then they are not acquired rights beotiuee at any stage the accused, might ba disobarged by the Magistrate. That being so, if the law relating to the procedure of the trial is ohangsd before the date of the trial, the accused is liable to ba tried by the amended procedure as he haa not aoquired any vested right to be tried by the original law. It is only if the law ia changed after the trial begins that an acoused might claim to be tried by the original law aa the right had vested in him. The general priaoiple is that a statute is not to be construed to have a greater retrospective operation than its language renders necessary, and that no person has a vestsd right in any course of procedure, and therefore, alterations in procedure are to be retrospective unless there is some good reason against it,

6. The present case is the converse of that case in the sense that the change in the law during the pendenoy of the case was in favour of the accused and it is the prosecution whioh is claiming that the Bhorter and more summary form of procedure was rightly adopted although at the time of the trial the ordinary provin-sions of the Criminal Procedure Code have been restored and were again in full operation. The principle involved, however, ia the same and the authorities cited show that the question involved is clearly one of some difficulty, and in view of this fact and also the fact that quite a considerable number of cases will be affeoted by the decision we consider that the question should be referred to a larger Bench. We would accordingly lay the case before my Lord the Chief Justice for the appointment of a larger Benoh to decide the following questions :

(1) When a case is Bent to the Court of Sessions under the provisions of 8. 37 (1), Punjab Public Safety Aot at a time when the dlstriot ia declared to be a , dangerously disturbed area, and before the trial in the Court of Session actually commences the district ceases to bei a dangerously disturbed area, should a Sessions Judge continue with the trial under the provisions ol Section 37 (1) of the Act or is the trial to be governed by the ordinary provisions of the Code of Criminal Procedure regarding sessions trial?

(2) If the latter view is correct, is it necessary that the case should he sent back to thu Magistrate for commitment prooeodings under Chap. 18, Civil P.C. or can the order of commitment Under Section 37 (1) ba treated as a proper order of commitment and should only the provisions of Chap. 28 relating to tho trial of aasea in the Court of Session be applied from the stage Df the commencement of the actual trial in the Sessions Court?

Since the decision may necessitate the retrial of a considerable number of cases it ia desirable that the Bench which ia to consider the matter should be constituted as early as possible.

Bhandari, J.

6. I agree.


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