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Hiralal Nansa Bhavsar and anr. Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1976CriLJ84; (1974)GLR725
AppellantHiralal Nansa Bhavsar and anr.
RespondentThe State of Gujarat
Cases ReferredVeerava v. N. Subhiah Choudhrv.
Excerpt:
- - who in view of the wide public importance of the question involved in the case thought it better that the point be decided by a larger bench and hence this full bench is constituted, 2. the new code cam? on the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. in either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. [1957]1scr488 .the court after referring to the various cases, laid down the following principles at page 553. paragraph 23: 23 from the decisions cited above the following principles clearly emerge :(i) that the legal pursuit of a remedy,.....a.d. desai, j.1. this case is referred to this full bench for deciding the question as to whether the appeal filed by the accused against their order of conviction in summary case no. 1528 of 1973 by the metropolitan magistrate, 10th court, ahmedabad, under section 66 of the bombay prohibition act can lie in this court in view of repealing and saving provisions of section 484 of the nal procedure, 1973 (hereinafter referred to as the new code). the question arises in this manner. the two accused-appellants were charge-sheeted before the city magistrate. 10th court. ahmedabad on august 25. 1973 for having committed offence under section 66(b) of the bombay prohibition act. it was alleged that the accused had committed the said offence on august 25. 1973. the learned city magistrate, 10th.....
Judgment:

A.D. Desai, J.

1. This case is referred to this Full Bench for deciding the question as to whether the appeal filed by the accused against their order of conviction in Summary Case No. 1528 of 1973 by the Metropolitan Magistrate, 10th Court, Ahmedabad, under Section 66 of the Bombay Prohibition Act can lie in this Court in view of repealing and saving provisions of Section 484 of the nal Procedure, 1973 (hereinafter referred to as the New Code). The question arises in this manner. The two accused-appellants were charge-sheeted before the City Magistrate. 10th Court. Ahmedabad on August 25. 1973 for having committed offence under Section 66(b) of the Bombay Prohibition Act. It was alleged that the accused had committed the said offence on August 25. 1973. The learned City Magistrate, 10th Court, recorded the plea of the accused on December 10. 1973 The evidence was recorded by the Metropolitan Magistrate, 10th Court, on April 8. 1974 and the said Magistrate found both the accused guilty of the offence with which they were charged and convicted each of the accused on April 8. 1974. In suffer rigorous imprisonment for 3 months and pay a fine of Rs. 500/- (in default of payment of fine to suffer further rigorous imprisonment for one month), Both the accused filed Appeal No, 279 of 1974 in this Court which came up for admission before Mr. Justice Surti who took the view that as the accused were convicted after coming into force of the new Code the appeal ought to have been filed in the Court of Session at Ahmedabad, in view of the provisions of Sub-section (3) of Section 374 of the New Code. No reasonings are given by the learned Judge for coming to this conclusion. The learned Judge realising the importance of the question after expressing his opinion on the point referred the matter to a Division Bench. The appeal was then placed before Division Bench consisting of J. B. Mehta and B. K. Mehta, JJ. who in view of the wide public importance of the question involved in the case thought it better that the point be decided by a larger Bench and hence this Full Bench is constituted,

2. The new Code cam? into force from April 1, 1974. It must be noticed that even though the prosecution was in-situated in the Court of the City Magistrate against the accused prior to April 1, 1974 I. e. before coming into force of the new Code, the order of conviction was passed on Aor',1 8, 1974 against both the accused. The appeal against the said order of conviction was filed in this Court by both the accused on April 9. 1974. The question is whether the said anneal is maintainable in this Court in view of Section 484 of the new Code. Section 484 of the new Code is as follows :

484. (1). The Code of Criminal Procedure, 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. 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 commence of 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 jurisdiction defined, sentence, passed and orders, rules and appointment not being appointments as Special Magistrate 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 proceedings 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 fee extension of time.

Section 484 contains repealing and saving provisions. The Code of Criminal Procedure, 1898 is repealed by Sub-section (1) of Section 484. Sub-section (2) contains savings provisions. Under Section 411 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code), any person convicted on a trial held by a Presidency Magistrate may appeal to the High Court, if the Magistrate has sentenced him to imprisonment or to fine exceeding two hundred rupees. Sub-section (3) of Section 374 so far as relevant provides that save as otherwise provided in Sub-section (2). any person convicted on a trial held by Metropolitan Magistrate, may appeal to the Court of Session. Relevant part of Section 376 provides that there shall be no appeal by a convicted person when a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine. The aforesaid provisions of the Old Code differ from the provisions of the new Code, and the two points of difference are: (1) the Forum to which an appeal can lie; and (2) the order of sentence against which an appeal can lie. The forum of appeal under the Old Code against the order of conviction passed by the Presidency Magistrate is the High Court. In the new Code the forum of appeal is the Sessions Court. Under the Old Code- an appeal can He against an order of conviction if the Presidency Magistrate has sentenced any person to imprisonment or to fine exceeding Rs. 200/-. Under the new Code an appeal lies only if the Metropolitan Magistrate passes any order of sentence of imprisonment exceeding 3 months or a fine exceeding Rs. 200/-or both of such imprisonment and fine. It is thus clear, that the right to appeal under the new Code is more restricted. It will be also necessary to remember the categories of persons who were on the date of the coming into force of the new Code interested in the right of appeal to the High Court against their orders of conviction passed by the concerned Magistrate. There are four categories of persons so interested; namely. (1) those persons who were aggrieved by a judgment and order of conviction passed by the Presidency Magistrate before commencement of the new Code and who have filed the appeal in. pursuance of the provisions of the Old Code in the High Court. In this class, there may be cases in which there may be more than one accused person in a case against whom, an order of conviction might have been passed. Some of these accused might have filed appeals against their order of conviction in the High Court prior to the coming into force of the new Code and some of them who have not filed such appeal because they have not obtained certified copies of the judgment and whose period of limitation for filing appeals is still subsisting. (2) Those accused persons against whom the trial Court had taken cognizance of the prosecutions prior to the coming into force of the new Code, held trial after April 1, 1974 and has passed judgments and orders of conviction thereafter. (3) Those accused persons against whom the Court has taken cognizance after April 1, 1974 of the prosecution in respect of an offence committed prior to coming into force of the new Code and the order of conviction has been passed thereafter. (4) Those accused persons who have committed offences after the coming into force of the new Code and who are convicted thereafter. Now before we go to the question of interpretation of Section 484 of the New Code, it is necessary to notice certain Principles with regard to the right of appeal which are not in controversy. The foremost and important principle is that the right of appeal is a substantive right and not a procedural one. Right of appeal is a vested right and the said right vests from the day of commencement of the proceedings as an appeal is consider-1 ed as a continuation of the proceeding. The substantive right of appeal includes, the right to continue the proceeding upto the final Court of appeal. The leading case on the point is the Australian case of Colonial Sugar Refining 1905 AC 369. In that case the Collector of Customs acting under Excise Tariff Act, 1902 required the appellants to pay certain amount of duty on certain weight of sugar. The appellants disputed the claim and paid the excise duty. The appellants thereafter instituted an action in the Supreme Court of Queensland against the Customs Collector for recovering the amount deposited. At the date of the institution of the action the law provided a right of appeal to His Majesty in Council from the judgment of the Supreme Court On August 25, 1903 Judiciary Act, 1903 received assent and under the provisions thereof the appeal lay from the judgment of the Supreme Court to the High Court of Australia. The judgment against the appellants was delivered after coming into force of the new Act. The Supreme Court granted leave to the appellants to appeal to His Majesty in Council- The respondent filed a petition before the Privy Council that the appeal be dismissed on the ground that the right of appeal to His Majesty in Council given by the order in Council of June 30, 1860 under which the leave had been granted had been taken away by the Judiciary Act, 1903 and that the only appeal from the decision of the Supreme Court of Queensland lay to the High Court of Australia. On behalf of the appellants it was contended that the provisions of the Judiciary Act 1903, were not retrospective so as to defeat a right in existence at the time when the new provisions of the Act received the Royal assent. Their Lord-ships of the Privy Council dismissed the respondent's petition observing as follows: 'As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a lone line of authorities extending from the time of Lord Coke to the present day. the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question, is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suit or in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.'

The principle laid down in this case was applied by the Privy Council in India in Delhi Cloth and General Mills Ltd. v. Income-tax Commr, Delhi 54 Ind App 421 . The principle laid down in these cases is now approved by the Supreme Court in the case of Garika-pati Veerava v. N. Subhiah Choudhrv. : [1957]1SCR488 . The Court after referring to the various cases, laid down the following principles at page 553. paragraph 23:

23 From the decisions cited above the following principles clearly emerge :

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the Implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the his commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that, prevails at the date of its decision or the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.' It is, therefore, clear that the right of appeal I9 a substantive right which crystallises at the date of the institution of action and this right includes a right to go in appeal to the superior Court- The forum to file the appeal is also thus determined as soon as the action is instituted. Till the case is instituted no litigant has any right to the forum in which the case can be instituted. In a criminal case this right of appeal and the right to file the appeal in the forum prescribed by law would precipitate at the date when the Court takes cognizance of an offence against the accused. It is perfectly competent for the legislature to affect this vested right retrospectively. The legislature may do so by making express provisions to that effect or by the disclosure of such an intention by necessary intendment. It is also competent to the legislature to save pending proceedings from operation of the new Act. The parliament when it enacted the provisions of Section 484, was aware of the aforesaid principles and also very well knew several categories of persons who were likely to be affected by the changes made in the new Code. The Parliament was also aware of the provision of Section 6 of the General Clauses Act. 1897 which provides for effect of repeal. Keeping the aforesaid points in view the Parliament has enacted Section 484 of the new Code and we will examine the true construction of the said section in view of the aforesaid principles and circumstances.

3. In order to construe Section 484. all the provisions thereof have to be taken into account and given effect to- By subsection (1) of Section 484. the Code of Criminal Procedure of 1898 is repealed. Sub-section (2) of Section 484 containing saving provisions and Sub-section (2) (a) thereof provides that if immediately before the date on which this Code comes into force there is any appeal, application, trial or 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 the commencement, (hereinafter referred to as the Old Code), as if the new Code has not come into force. There is an important proviso to this section and it provides 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 the new Code. Sub-section (2) (c) provides that any sanction accorded or consent given under the Old Code in Pursuance of which no proceedings were commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of the new Code and proceedings may be commenced under the new Code in pursuance of such sanction or consent. Sub-section (2) (d) provides that 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, Sub-section (3) provides that when the period prescribed for an spoliation or other proceeding under the Old Code had expired on of before the commencement of. the new Code, nothing in the said Code shall be construed as enabling any such application to be under or proceeding to be commenced under the new Code b reason only of the fact that a larger period therefor is prescribed by the new Code or provisions are made thereunder for the extension of time. The effect of this provision is not to revive a barred remedy or to put in other words to prevent a procedural law from taking effect retrospectively. It is clear from the aforesaid provisions that whenever the parliament wanted to apply the provisions of the new code or that the provisions of the Old Code are to be continued (in spite of the enactment of the new Code), it has specifically so stated. The intention of the parliament as evident from the provisions of Sub-section (2) (a) is to continue the old provisions in respect of pending appeal, application, trial, inquiry and investigation. The parliament has clearly given the direction that such proceedings should be disposed of or continued or held or made, as the case may be, in accordance with the provisions of the Old Code as if the new code has not come into force. It is clear that the parliament did not want to give retrospective effect to the provisions of the new Code so far pending proceedings mentioned therein are concerned- The proviso to the said sub-section makes the intention of the parliament clearer. A bare reading o the said proviso indicates that the committal proceedings which are contained in Chapter XVIII of the Old Code and which are pending on the date of the commencement of the new Code are to be continued under the new Code. This clearly means that retrospective effect has to be given to the provisions of the new Code so far as pending committal proceedings are concerned. Sub-section (2) (c) proves that the sanction accorded or con-sent given under the Old Code in pursuance of which no proceedings were commenced under that Code shall be deemed to have been accorded or given under the corresponding provisions of the new Code and the proceedings may be commenced under the said Code in pursuance of such sanction or consent. The negative effect of these provisions is that when the sanction has been accorded or consent given under the Old Code and in pursuance, of such sanction or consent the proceedings after taking cognizance thereof have been commenced under that Code, such proceedings shall not be governed by the corresponding provisions of the new Code. Such proceedings are required to be disposed of according to the provisions of the Old Code. This is so because naturally such proceedings would be governed by Sub-section (2) (a). It was argued by the learned Government Pleader that Section 484 is a self-contained Code in respect of repealing and saving provisions. The said provisions do not save any right, obligation or liability acquired or accrued or incurred under Old Act and that being so, it is too much to say that the parliament intended to continue the proceedings of which cognizance was taken under the Old Code to its final determination. To support this argument much reliance was placed on Sub-section (2) (d) and it was argued that the word 'orders' used therein includes an order of conviction and as the sub-section provides that such orders shall be deemed to be orders under corresponding provisions of the new Code, any further1 proceedings against such orders- should be governed by the provisions of the new Code, The argument further proceeded that for the purpose of determining whether an order of conviction is appealable and the Court to which an appeal can lie against such order, the provisions of the new Code alone should be looked at and it is the new provisions which alone should govern such an order for such purposes, Now it is a well established principle that the lansuase of every statute must be construed as far as possible in accordance with the terms of every other law which it does not in express terms modify, vary or repeal. When the parliament enacted Section 484 of the Code providing repealing and saving provisions, it was aware of Section 6 of the General Clauses Act, 1897. which provides effect of repeal of a statute. It appears that Section 484 only varies or modifies a part Section 6 of the General Clauses Act, 1897, keeping the other provisions thereof alive. There is nothing in Section 484 which indicates that it was enacted to substitute all the provisions of Section 6 of the General Clauses Act. The provisions of Section 6 of the General Clauses Act are mainly modified in two respects: (1) pending committal proceedings under Chapter XVIII are directed by the new Code to be dealt with and disposed of in accordance with the provisions of the new Code; (2) fresh institution in respect of an act or omission committed prior to the coming into force of the new Code is to be governed by the new Code, The provisions of Sub-section (2) (b) are transitory provisions enacted to continue certain notifications, sentences passed, rules, orders or appointments issued or made under the Old Code. The continuance of these matters is necessary to avoid fresh immediate issuance thereof and in case of sentences passed to see that they do not cease to have effect. The provisions of Sub-section (2) (b) are similar to Section 24 of the General Clauses Act and merely provide for continuance of the notifications, sentences passed, orders, etc. issued under the enactment repealed. The provisions of Sub-section f2) (b) do not deal with confirmation of right of appeal or any other right. Assuming that the word 'orders' include orders of conviction, it cannot be said that appeal against such orders must lie under the new Code. To read the provisions in that manner would make the provisions of Sub-section (2) (a) nugatory, ineffective and meaningless. To illustrate, take a case in which 4 accused are charge-sheeted in one case for being in possession of liquor without necessary permit, .ie. an offence punishable under Section 66(b) of the Bombay Prohibition Act. The Presidency Magistrate who took cognizance of the offence passed the order of conviction on March 22. 1974. Three of the accused filed separate appeals in the High Court on March. 24. 1974 and the High Court admitted the same on March 25, 1974. The remains accused filed an appeal in the High Court on April 7, 1974- Inconsistent situations will then arise. The appeals of the three accused shall have to be disposed of by the High Court. The appeal of the fourth accused, according to the interpretation sought to be given to Sub-section (2) (a) could only lie in the Sessions Court and not to the High Court and has to be disposed by the Sessions Court. Such cannot be the intention of the parliament. The Court cannot construe a provision in a manner which gives rise to inconsistencies. It is, therefore, obvious that in enacting Sub-section (2) (a) the parliament intended that the pending proceedings be disposed of or continued or held or made according to the procedure under the Old Code. Sub-section (2) (b) is merely a transitory provision which does not confirm any right but provides for continuance of notifications, orders, rules, appointment, sentences passed, etc. It must be noticed that what are saved under subsection (2) (a) are only the pending proceedings. If a proceeding is instituted subsequent to the commencement of the Code in respect of the act or omission committed prior to the coming into force of the new Code, it would only be governed by the provision of the new Code. In the four categories of cases mentioned hereinbefore, the first two categories of cases would be governed by Sub-section (2) (a) of the new Code and have to be disposed of finally in accordance with the provisions of the Old Code as if the New Code has not come into force- The other two categories of the cases would not be governed by the provisions of Sub-section f2) (a) and shall have to be dealt with and disposed of in accordance with the provisions of the new Code.

4. It was argued by the learned Government Pleader that the object of Sub-section (2) (a) is very limited and it is to allow the disposal of pending proceedings as if the new Code has not been passed. In other words when the said pending proceedings are disposed of, the new Code will apply and appeal would, therefore, have to be filed according to the new provisions. It is difficult to accept this limited construction. The words 'disposed of' must mean finally disposed of. The proviso to the said sub-section helps us to construe the said words. According to the proviso committal proceeding pending at the commencement of 1lie new Code are required to be dealt with and disposed of in accordance with the new Code. The words 'disposed of' used in this proviso clearly mean that the disposal contemplated thereby is the final disposal of the proceeding. It 19 obvious, therefore, that the words 'disposed of' when used in the main Part of Sub-section (2) (a) must mean disposed of finally.

5. It was then vehemently argued that the proceedings referred to in subsection (21) (a) are pending appeal, application, trial, inquiry or investigation and the verbs used in respect thereof are 'shall be disposed of. continued, held or made' and that being so, the Parliament could have never intended that on the police investigation being initiated further proceedings in respect of such investigation should be finally disposed of in accordance with the old Code. Now appeal, application, trial, inquiry or investigation are different steps in a criminal prosecution. There is no vested right at all these steps. A party to the prosecution has no vested right in procedural provisions. The intention of the Parliament is that out of the proceedings mentioned in the section those proceedings in which the party has no vested right are only to be continued or held or made according to the provisions of the old Code as if the new Code has not been in force. On completion of such proceedings in that manner further steps in the prosecution are to be taken according to the provisions of the new Code- For example, when investigation is initiated in respect of an alleged offence before coming into force of the new Code, the investigation has to be made according to the provisions of the old Code. On completion of such investigation further steps, such as, filing a police report in the Court hag to be taken in accordance with the provisions of the new Code. This is so because investigation is a procedural matter. No accused person has any vested right therein. Accused acquires no vested right till the Court takes cognizance of the prosecution against him. There are other proceedings out of the proceedings included in Sub-section (2) (a), in which certain vested rights are created and such proceedings are required to be disposed of finally in accordance with the provision of the old Code. To illustrate, when a Court has already taken cognizance of a prosecution and the order of conviction is- recorded after coming into force of the new Code, further proceedings in respect of appeal against the said order of conviction would be governed by the provisions of the old Code because the right of appeal is a substantive right which accrues to the parties to the prosecution at the time when the Court takes its cognizance. As observed by the Privy Council on the institution of a proceeding the right of appeal and the superior forum to which an appeal can He in accordance with the provisions then in force are both vested rights. It is for this reason that such proceedings are required to be disposed of in accordance with the old provision unless the legislature expressly or by necessary intendment provides, otherwise. There are no such express provisions in the new Code so far as the right of appeal is concerned. There are no provisions in Section 484 which indicate such necessary intendment of the Parliament, Thus such an appeal is required, to be disposed of finally under the old Code.

6. It is then said that the Courts of the Presidency Magistrates which were created under the old Code have ceased to be in force. Under Section 16 of the new Code the Courts of the Metropolitan Magistrates are established. How can it be said (then) that the pending proceedings referred to in Section 484(2)(a) should be disposed of in accordance with the provisions of the old Code especially when the Presidency Magistrate Courts have ceased functioning? Such an argument is without any substance and has to be stated merely for the purpose of rejection. It is true that the old Courts have ceased to function and the new Courts of Metropolitan Magistrates are established. The -jurisdiction of the new Courts and their powers are practically the same as those of the Courts of Presidency Magistrates under the old Code with one main difference and the difference is that the Metropolitan Magistrates are given powers to pass sentences of longer duration than those which the Presidency Magistrates could have passed under the old Code. To be more specific under Section 2& of the new Code the Chief Judicial Magistrate or Chief Metropolitan Magistrate can pass any sentence authorised by law except of death or imprisonment for life or imprisonment for a term exceeding seven years. The Court of Magistrate of First Class or Metropolitan Magistrates can pass a sentence of imprisonment not exceeding three years or fine not exceeding five thousand rupees or both. Under Section 32 of the old Code the Courts of Presidency Magistrates and Courts of the First Class Magistrates could have passed any imprisonment au- thorised by law not exceeding two years and/or a fine not exceeding two hundred rupees. Except this there is not much difference in respect of judicial powers of the said two Courts. Now Sub-section (2) (a) of Section 484 does not refer to any Court. It refers to certain .pending proceedings and requires the said proceedings to be disposed of, continued, held or made as the case may be in accordance with the provisions of the old Code as if the new Code has not come into force. It is obvious that pending proceedings in the Courts of Presidency Magistrates referred to in Sub-section (2) (a) have to be disposed of by the Court of the Metropolitan Magistrates in accordance with the provisions of the old Code as if the new Code has not come into force. In the present case City Magistrate, 10th Court, took cognizance on August 25, 1973 of the prosecution against the accused on the basis of police report dated August 25, 1973. The order of conviction was passed by the Metropolitan Magistrate, 10th Court, Ahmedabad. on April 8, 1974, that is, after coming into force of the new Code. It is thus obvious that at the date when the new Code came into force, the Court had already taken cognizance of the prosecution against the accused and it is from that date that the accused acquired the right to appeal to the High Court. The accused had acquired on August 25. 1973 the right of appeal under the provisions of the old Code to the High Court and that being so the appeal by the accused against their order of conviction can be filed only in the High Court and the High Court alone has the -jurisdiction to entertain and dispose of the same. The right of appeal of the accused or the forum thereof cannot be governed by the provisions of the new Code in view of the provisions of Sub-section (2) (a) of Section 484 of the New Code. For the aforesaid grounds the case referred to us (is) to 20 back to the Court of Single Judge for disposal according to law.


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