1. This is a reference by the Additional District Magistrate of Mymensingh, recommending that the case may be ordered to be committed to the Court of Sessions for trial.
2. The complainant supports the reference and. the accused opposes it.
3. The case commenced in February, 1923, in the Court of the Deputy Magistrate of Tangail and involved charges against the accused under Sections 408 and 477-A of the Indian Penal Code.
4. At the time the case commenced, the charges under Section 477-A were exclusively triable by the Court of Sessions. Since the amended Code of Criminal Procedure came into force charges under Section 477-A are triable by a Magistrate with first class powers. One of the grounds for the reference is that the Additional District Magistrate desires a decision as to whether the amended provision of the Code of Criminal Procedure, authorising a Magistrate with first class powers to try offences under Section 477-A, applies to cases commenced before the amending Act came into force. Another ground for the reference is that the amount of defalcation and the extent of falsification of accounts alleged demand, in case of conviction, a punishment in excess of what a Magistrate with first class powers can award. This is 2 years' rigorous imprisonment in the case of each charge subject to a limit of 4 years. The last ground suggested is economy. It is said that if the matter is dealt with by the Court of Sessions and if conviction follows on one or more counts it will be unnecessary to prosecute other charges, as adequate punishment can be inflicted in respect of the one or more counts established. The Magistrate framed charges in respect of one item only under Sections 408 and 477-A of the Indian Penal Code on the 14th September 1923. The complainant asked that charges should be framed against the accused in respect of some seven items in regard to which defalcation and falsification of accounts was alleged; but the charges framed relate to one item only of Rs. 10,000, the offences alleged being carried out by inserting under a heading Howlat in the Bakian a sum of Rs. 29,987-13-0 instead of Rs. 19,987-13-0. With regard to the first point to which the letter of reference relates we were referred on behalf of the complainant to certain passages in Hardcastle's Statute Law, 3rd Ed. at pp. 319 and 351 in support of the proposition that as the case commenced before the amended Criminal Procedure came into force the provisions of the Criminal Procedure Code before the amendment alone applied. We think, however, that as the amendment of the law, which enables a Magistrate with first class powers to try charges falling under Section 477-A of the Indian Penal Code, is a matter of procedure only that the amended Act applies notwithstanding that the case was commenced before the amended Act came into force, which was in September 1st, 1923, and we think that the Magistrate has power to deal with the case. See Re Joseph Suche & Co. Ltd. (1875) 1 Ch. D. 48, per Jessel, M.R. 'It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that where enactments merely affect procedure, and do not extend to rights of action they have been held to apply to existing rights.' And see also Gardner v. Lucas (1878) 3 A.C. 582, per Lord Blackburn. 'It is perfectly settled that if the Legislature intended to frame a new procedure, that, instead of proceeding in this form or that you should proceed in another and different way, clearly these bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.' And see again Kimbray v. Draper (1868) 3 Q.B. 160, where Blackburn, J., stated that a statute dealing with procedure applies prima facie to all actions, pending as well as future. So far therefore as regards the first point raised by the reference we hold that the Magistrate has power to hear the case.
5. The second point raised by the reference involves an interference with the discretion which the Magistrate has exercised, namely, not to commit the case to the Sessions, but to deal with it himself. We see no reason to believe that the Magistrate's discretion has not been properly exercised and accordingly we are not prepared to interfere with it. Although the Magistrate, if he convicts, cannot pass a longer sentence than 2 years in respect of any one offence, it is open to him to pass a like sentence in respect of each offence of which he convicts the accused, upto a limit of 4 years, and to direct how the sentences are to run.
6. The third point raised by the reference we need not deal with. In the result we are not able to accept the reference and we reject it.
7. We desire to add for the information of the trying Magistrate that he should consider whether it is not advisable to frame an additional charge in respect of one or other of the other defalcations or falsifications alleged, up to the limit of his powers as set out in Section 234, Cr.P.C.
8. I agree.