Charles A. Turner, Kt., C.J.
1. The Judge has submitted this case for orders under the following circumstances.
2. The accused, with other persons who have been acquitted, was tried on charges, of which some were, at the time the trial commenced, triable by a jury and others were not so triable. In accordance with the practice then obtaining, the jurors were empanelled as assessors in respect of the charges they were not competent to try as jurors.
3. The trial was-protracted, and, before its conclusion, Act X of 1882 came into force. That Act, Section 269, prescribes that, where on a trial some charges are triable by a jury and others are not ordinarily so triable, all the charges shall be tried by a jury; and the Judge considers that the operation of the Act in this case was to convert the persons empanelled as assessors into jurors in respect of the charges they commenced to try as assessors. Inasmuch as the accused was convicted by the jury on one of those charges, and the Judge found himself unable to concur in the verdict, he has submitted the case to the Court, under Section 3071 of the Code of Criminal Procedure.
4. The Act of 1872 was repealed by Act X of 1882. By the 558th Section of the latter Act, it was enacted that the provisions of that code should apply, so far as might be, to all cases pending in any Criminal Court when that code should come into force. It cannot be denied that the case in which this reference is made was a pending case when the code came into force, but the trial had actually commenced and the Judge was bound to conclude it.
5. A change of procedure could not be made in the midst of a trial. Under the circumstances, the limitation 'as far as may be' in Section 558 applied, and excluded the operation of Section 558.
6. The provision in the General Clauses Act, Section 6, that the repeal of an Act shall not affect proceedings commenced, took effect, and the Judge must complete the trial under the rules of procedure which were in force when the trial began.
7. The record will be returned to him for that purpose.
8. At the date of the commencement of the trial, 26th December 1882, the case against second prisoner on a charge under Section 4082 of the Indian Penal Code (the only one with which we are concerned) was triable with assessors.
9. During the course of the trial, the new Code of Criminal Procedure, which makes such cases triable by jury, came into force.
10. The Judge, considering that the five persons, who had been appointed assessors without any power of giving a definitive verdict as to the guilt or innocence of the accused person, but with merely a duty imposad upon them of expressing an opinion as to such guilt or innocence, were, by the coming into force of the code, converted into jurors, took their verdict as such at the close of the trial.
11. This view seems to me to be erroneous.
12. The general rule as to new laws of procedure is that they take effect from their coming into operation; so that procedure from that date would be governed by such laws. But they are not retro-active; that is, they have no operation upon what has occurred prior to the date of their coming into force.
13. It is also a general rule as to even retro-active laws that they are not to affect vested rights, though by positive law they are sometimes made to do so, as in the case of a limitation law which curtails the period within which a mortgagor has a right to redeem.
14. A fortiori, it should seem that laws not retro-active could have no power to affect vested rights.
15. Now, the accused had a right at the commencement of the trial to be tried by assessors, and it seems to me that, on the general principles above referred to, this right could not be affected by the coming into force of a new Code of Criminal Procedure.
16. If, according to general principles, the Code is not to have retro-active operation, let us suppose it is to have operation at all events from the 1st January 1883, the date at which it came in force. Then we have the five persons originally appointed as assessors acting in that capacity for six days, so that, during six days of the trial, it would have been conducted without a jury, and would be bad, because the functions and responsibilities of jurors must extend to the whole trial.
17. Now, the last section of the Code only directs that the Code shall be applied to pending proceedings, as far as may be, which would not certainly convey authority so to apply the Code as to vitiate a trial; and Section 6 of the General Clauses Act, I of 1868, prevents proceedings already commenced being affected by the repeal of the old Code. Beading this latter provision with the language of Section 558 of the new Code, it seems clear that the functions of the assessors appointed at the commencement of the trial must continue to be those of assessors, and are not converted into those of jurors, and that the Judge should not have treated the case as having been tried by a jury, but should have disposed of the case of second prisoner upon this charge, himself with the aid of the assessors.
18. I would set aside the verdict given by the assessors as a jury on this charge, and remit the case for disposal by the Judge according to law.
1 Procedure where Sessions Judge disagrees with verdict.
[Section 307 : If in any such case the Sessions Judge disagrees with the verdict of the jurors or of a majority of the jurors, on all or any of the charges on which the accused has been tried, so completely that he considers it necessary for the ends of justice to submit the case to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and when the verdict is one of acquittal, stating the offence which he considers to have been committed.
Whenever the Judge submits a case under this Section he shall not record judgment of acquittal or of conviction on any of the charges on which the accused has been tried, but he may either remand the accused to custody or admit him to bail.
In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal; but it may acquit or convict the accused of any offence of which the jury could have convicted him upon the charge framed and placed before it and if it convicts him, may pass such sentence as might have been passed by the Courts of Session.]
2 Criminal breach of trust by a clerk or servant.
[Section 408 : Whoever, being a clerk or a servant, or employed as a clerk or servant, and being in any manner entrusted in such capacity with property or with any dominion over property commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may' extend to seven years, and shall also be liable to fine.]