Sankar Prasad Mitra, C.J.
1. This is a reference under Rule 1 of Chapter XXXVII (Criminal Side Rules) of the Rules of the High Court at Calcutta, Original Side, read with Clause 25 of the Letters Patent. Sudhamay Basu, J. has reserved the following points of law to be heard and determined by a Division Court constituted by three or more Judges:
(i) Whether the new Criminal Procedure Code (Act 2 of 1974) applies to a case in which the order of committal was passed prior to the 1st April, 1974 but where a trial had not commenced in terms of Section 271 of the Code of Criminal Procedure, 1898?
(ii) If the answer is in the affirmative would Chapter XVIII of the new Code (Act 2 of 1974) apply having regard to the fact that there is no committal under Section 209 of the new Code?
(iii) Whether an order of committal passed under the old Code may be deemed to be an order of committal passed under Section 209 of Act 2 of 1974 having regard to Section 226 of the new Code?
(iv) Is the phrase 'commencement of trial' to be construed on the facts and in the circumstances of the case, in a sense more extended than what is stated in Section 271 of the (old) Criminal Procedure Code of 1898?
2. The relevant facts are that on the 3rd October, 1966, a Presidency Magistrate of Calcutta committed to the Court of Session at the High Court the case relating to certain shares of Messrs, Osier Electric Lamp . An application was. made to the? Court for amalgamation of this case with another case, namely, State v. Haridas Mundhra, Rameshwar Daga and others relating to certain shares of Messrs. Richardson & Cruddas Private Ltd. On the 10th December, 1968' Ajay Kumar Basu, J. presiding over the High Court Session rejected the application for amalgamation. The High Court also granted bails to the accused. After the opening of the Session on the 11th February, 1974, the case was adjourned from time to time. The accused persons also attended the Court. Two petitions on behalf of the accused persons for their discharge, inter alia, on the ground that the charges were unsustainable were moved and argued before this Court. The orders on these petitions were reserved as the question arose whether on the facts and in the circumstances of this case the trial was pending in this Court immediately before the 1st April, 1974, when the new Criminal Procedure Code came into force within the meaning of Section 484(2)(a) of the new Code. If it be held that the trial was pending, the old Code of 1898 would apply to this case and the trial would proceed in accordance with the provisions of the old Code. If it be held that the new Code would apply, different consequences will follow.
3. Let us at the outset read the relevant provisions of Section 484 of the new Code on which learned Counsel appearing for the different parties have based their arguments:
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 commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.
4. Now, Sub-Section (1) of Section 484 of the new Code repeals the Code of 1898. But Clause (a) of Sub-Section (2) of Section 484 provides that if any appeal, application, trial, inquiry or investigation is pending immediately before the date on which the new Code comes into force, that is, the 1st April, 1974, that appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, in accordance with the old Code of 1898.
5. The most significant feature of Clause (a) of Sub-Section (2) of Section 484 is its proviso which prescribes that an inquiry under Chapter XVIII of the old Code which is pending at the commencement of the new Code shall be dealt with and disposed of in accordance with the provisions of the new Code. The inquiry under the aforesaid Chapter XVIII was an inquiry into cases triable by the Court of Session or High Court.
6. The proviso, therefore, gives an indication as to what is to be excluded from the operation of the old Code. The effect of Clause (a) of Sub-Section (2) of Section 484 along with the proviso ap pears to be that all pending appeals, applications, trials, inquiries or investigations shall proceed under the old Code except inquiries under Chapter XVIII of the old Code.
6-A. The main question, therefore, in this reference is whether on the facts and in the circumstances narrated above the 'trial' was pending in this Court immediately before the 1st April, 1974.
7. Mr. J. N. Ghose, appearing for the State, true to the traditions of the Bar, has frankly stated before us that his instructions are to contend that this trial should continue under the provisions of the old Code; but personally he has his doubts. He has drawn our attention to Section 271 in Chapter XVIII of the old Code dealing with the procedure for trials by the Court of Session of the High Court which is as follows:
271. Commencement of trial, -- (1) When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged or claims to be tried..... .... .... ....
8. Mr. Ghose submits that under the old Code a trial did not commence until the steps provided for in Section 271 had been taken. In the instant case these steps had not been taken. The accused had not appeared or been brought before the Court and the charges had not been read out in Court and explained to them and they had not been asked whether they were guilty of the offences charged or claimed to be tried before the date on which the new Code came into force. In these circumstances, submits Mr. Ghose, it may be argued that this was not a trial pending on the 1st April, 1974, as the trial had not commenced within the meaning of the old Code.
9. There was a definition of 'trial' in the Code of Criminal Procedure, 1872. The definition was: ' 'Trial' means the proceedings taken in Court after a charge has been drawn up, and includes the punishment of the offender.' This definition was withdrawn from the subsequent Codes of Criminal Procedure. There was no definition of 'trial' in the Cole of 1898. There is also no definition in the Code of 1973. The Supreme Court in State of Bihar v. Ram Naresh : 1957CriLJ567 has made the following observations with reference to the Code of 1898:
'Trial' according to Stroud's Judicial Dictionary means 'the conclusion by the competent Tribunal, of questions in issue in legal proceedings, whether civil or criminal' (Stroud's Judicial Dictionary, 3rd Edition. Vol. 4, p. 3092), and according to Wharton's Law Lexicon means 'the hearing of a cause, civil or criminal, before a Judge who has jurisdiction over it, according to the laws of the land' (Wharton's Law Lexicon, 14th Edition, p. 1011). The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and provision under consideration.
10. These observations of the Supreme Court apply to the new Code of 1973 as well. The word 'trial', as we have said, was neither defined in the old Code nor in the new Code. In every case, therefore, it has to be construed with regard to the particular context in which it is used and with regard to the scheme and purpose of the provision under consideration. We have, therefore, to determine what is meant by the word 'trial' in Section 484(2)(a) of the new Code in the context in which it appears keeping in view the purpose of the provision. In other words, the word 'trial' in the new Code as in the old Code cannot have the same meaning attached to it in all the sections.
11. It seems to us that the expression 'trial pending' in Section 484(2)(a) has a wide connotation. The Supreme Court has referred to Stroud's Judicial Dictionary and Wharton's Law Lexicon. In the compact edition of the Oxford English Dictionary, Vol. 2, 1971 Edition, at pages 637 and 334 respectively we find some of the meanings of the words 'pendency' and 'trial' relevant for our purposes. 'Pendency' means the state or condition of being pending or continuing undecided or awaiting settlement. 'Trial' means the examination and determination of a cause by a Judicial Tribunal; determination of guilt or innocence of an accused person by a Court. In Webster's third new International Dictionary, Vol. 2, 1966 at pp. 1669 and 2439 respectively we have the meanings of 'pending' and 'trial'. 'Pending' means not yet decided--in continuance, in suspense. Trial' means the mode of determining a question of fact in a court of law; all proceedings from the time when the parties are called to try their cases.
12. In the context of these Dictionary meanings of 'Trial' and 'pending' let us consider the provisions of Section 193 of the old Code which run thus:
193. Cognizance of offences by Courts of Session.-- (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf.
13. In view of the dictionary meanings of the words 'trial' and 'pending' which we have noted above, our view is that the expression 'trial pending' in Section 484(2)(a) means a trial which has commenced but has not yet concluded. And a trial commences as soon as the Court of Session takes cognizance of the offences in terms of Section 193 of the old Code. In the instant case, cognizance was taken on the 3rd October, 1966 and the trial had not concluded on the 1st April, 1974, when the new Code came into force, This is, therefore, a case of trial pending' under Section 484(2)(a) of the new Code which has to be disposed of in accordance with the provisions of the Code of 1898. Once cognizance is taken the case is before the Court of Session and can be ended only by an order of that Court. From this point of view there appears to be no difference between a case pending and a trial pending.
14. In this connection it may be relevant to refer to an observation of Jessel, M. R in re: Clagett's Estate: For-dham v. Clagett (1882) 20 Ch D 637 at p. 653 as to the meaning of the word 'pending'. The Master of Rolls said: 'A cause is said to be pending in a court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending....
15. This observation was quoted with approval by the Supreme Court in Asgarali v. State of Bombay : 1957CriLJ605 . If we apply the meaning of 'pending' as stated by Jessel, M. R. to the facts of the present case we have to come to the conclusion that the trial became pending as soon as the Court of Session took cognizance of the offences. After a Court of Session takes cognizance, applications for bail may be moved before that Court and the Court makes orders on those applications. After cognizance the Court fixes the date of trial and issues precepts on Jurors and witnesses in furtherances of the trial. These proceedings take place in the Court of Session inasmuch as the cause is pending in that Court. In the in slant case the Court of Session even entertained an application for amalgamation and had rejected the application. That order of rejection could not have been made unless the cause was pending before the Court. The Court of Session also entertained applications for discharge of the accused.
16. Incidentally the Supreme Court in Asgarali's case has discussed at page 509 when a trial is concluded. The Supreme Court says.... The word 'trial' is also defined in Stroud's Judicial Dictionary, Edition 3, Vol. 4 at page 3092:
Trial: (1) A 'trial' is the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal, (2) The 'trial' (Criminal Justice Act, 1948 (U & 12 Geo. 6 C. 58) Section 23(1)' ) is not complete until sentence has been passed or the offender has been ordered to be discharged v. Grant (1951) 1 KB 500.
17. It is true, as Sudhamay Basu, J. has pointed out, that the Supreme Court was concerned in Asgarali's case with when the trial concluded. But in paragraph 21 of the judgment at page 509 the Supreme Court before quoting the above observations of Jessel, M. R. has referred to the meaning of the word 'pending' in Stroud's Judicial Dictionary, Edition 3, Vol. 3, at page 2141. According to Stroud a legal proceeding is 'pending' as soon as commenced and until it is concluded, i.e., so long as the Court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. We have already expressed the view that the trial in the instant case became pending when on the 3rd October, 1966, this Court took cognizance of the offences under Section 193 of the old Code and will remain pending so long as the Court which took cognizance can make any order on matters relating thereto,
18. There is another reason why the word 'trial' in Section 484(2)(a) of the Code of 1973 cannot be construed with reference to 'commencement of trial' in Section 271 of the Code of 1898. And that reason is furnished by Section 273 of the old Code which reads as follows:
273. Entry on unsustainable charges.--(1) In trials before the High Court, when it appears to the High Court, at any time before the commencement of the trial of the person charged, that any charge or any portion thereof is clearly unsustainable, the Judge may make on the charge an entry to that effect.
Effect of entry. (2) Such entry shall have effect of staying proceedings upon the charge or portion of the charge, as the case may be.
19. Section 273, therefore, makes a clear distinction between a trial before the High Court and the commencement of the trial within the meaning of Section 271. 'Trial' in this context is a word of much wider amplitude than commencement of the trial. It is this meaning of the word 'Trial' which is applicable, in our judgment, to that word in Section 484(2)(a) of the Code of 1973.
20. Our attention has been drawn to a Division Bench judgment of this Court in AIR 1931 Cal 341 : 32 Cri LJ 758 (Mahammad Yusuf v. Emperor). It has, inter alia, been held in this case that the trial before a Court of Session commences immediately after the empanelling of the jury when the prisoner is given in charge. This decision is based on the provisions of Sections 272 and 271 of the Code of 1898 and must be restricted to the provisions of those sections only for construing the word 'Trial' in Section 484(2)(a) of the new Code one should not resort to these decisions which are concerned with the actual hearing of the case. In other words, Section 271 of the Code of 1898 refers to only a stage of the trial when the Court is ready to commence the trial. The accused appears or is brought before the Court and the charge is read out to him in Court and explained to him, and he is asked whether he is guilty of the offences charged, or claims to be tried. If the accused pleads guilty, the plea shall be recorded and he may be convicted thereon. It would not be proper to restrict the expression 'trial pending' in Section 484(2)(a) of the Code of 1973 to the commencement of trial in accordance with the provisions of Section 271 of the Code of 1898 which is only a part of the trial. The trial began when the Court of Session took cognizance of offences and assumed jurisdiction to pass various orders relating to or Incidental to the trial.
21. In support of our view that the provisions of Section 271 have a limited scope we may, incidentally, refer to two other sections of the Code of 1898. These are Sections 286 and 333. Section 286 is as follows:
Opening case for prosecution.-- (1) In a case triable by jury, when the jurors have been chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor shall open his case by reading from the Indian Penal Code or other law the description of the offence charged and stating shortly by what evidence he expects to prove the guilt of the accused.
Examination of witnesses.-- (2) The prosecutor shall then examine his witnesses.
22. A trial which has commenced upon compliance with the provisions of Section 271 may not reach the stage indicated in Section 286. There is, therefore, a distinction between commencement of trial under Section 271 and the opening of the case for prosecution and examination of witnesses under Section 286. This shows that Section 271 should be confined to its own terms and should not be understood in any wider sense.
23. Then again, Section 333 reads thus:
Power of Advocate-General to stay prosecution.-- At any stage of any trial before a High Court under the Code, before the return of the verdict, the Advocate-General may, if he thinks fit, inform the Court on behalf of Government that he will not further prosecute the defendant upon the charge; and thereupon all proceedings on such charge against the defendant shall be stayed, and he shall be discharged of and from the same. But such discharge shall not amount to an acquittal unless the presiding Judge otherwise directs.
24. This is indeed a revealing section so far as we are concerned in this reference. The Advocate-General can exercise his discretion, under this section at any stage of any trial before a High Court. The power can be exercised after the trial has commenced under Section 271. The power can also be exercised before the trial has commenced within the meaning of Section 271. The only restriction imposed on this power is that it has to be exercised before the return of the verdict. This Section also shows that 'trial' in the old Code had a meaning much wider than 'commencement of trial' in Section 271. If the Advocate-General exercised his power before the Court was ready to commence the trial, he was doing so at a stage of the trial yet to commence in terms of Section 271. We cannot confine ourselves to Section 271 only to ascertain what is meant by 'trial' and ignore the provisions of the other sections of the Code we have already referred to.
25. The other point for consideration is that Section 484(1) of the Code of 1973 repeals the Code of 1898. What is the effect of the repeal? Has it taken away substantive rights conferred by the old Code? Under Section 6 of the General Clauses Act, 1897 the repeal shall not, inter alia, affect any right or privilege acquired under any enactment so repealed unless a different intention appears. When the old Code was in operation, the accused before a session division in a High Court had two substantive rights namely, (a) the right to be tried by a jury and (b) the right to appeal to a Division Bench of the Court. The new Code has taken away these rights. But we have found no intention in the new Code to hold that these rights have been taken away retrospectively. These rights, therefore, survive and unless the trial is held under the old Code, these rights cannot be exercised. This is an indication that the old Code will apply to the trial under reference.
26. There is another way of looking at the problem before us although it is not strictly necessary in view of what we have stated above. A criminal case is conducted in different .stages viz., the stage of inquiry or investigation and the stage of committal and trial.
27. So far as trial is concerned, there was, as we have seen, two periods, namely, (1) the period before the actual commencement of the trial and (2) the period after the actual commencement of the trial under Section 271.
28. Now, under Section 484(2)(a) of the Code of 1973 a pending inquiry would continue in accordance with the old Code. An unfinished investigation has also to be finished in accordance with the old Code. In this context, if we say that the expression 'trial pending' means a trial which has commenced under the provisions of Section 271 of the old Code, we shall lead ourselves into absurdities. It is unthinkable that the intention of the legislature is that a 'trial' which has commenced under Section 271 of the old Code would proceed according to the provisions of the old Code; but a trial which has not yet commenced in that sense is to be governed by the new Code, it is well known that if a Statute is passed for the purpose of enabling something to be done, but omits to mention in terms of some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the Statute has in contemplation, the Courts are at liberty to infer that the Statute by implication empowers that detail to be carried out: vide Craies on Statute Law, 7th Edition, p. 111.
29. Assuming, therefore, for the sake of argument that the word 'trial' has a restricted meaning as aforesaid, we are at liberty to hold that the new Code by implication has empowered the High Court to commence the trial if cognizance of the offences had been taken by it before the 1st April, 1974.
30. For all the reasons aforesaid we have arrived at the following conclusions:
1. The expression 'trial pending' in Section 484(2)(a) of the Code of Criminal Procedure, 1973 has a wide connotation. It cannot be restricted to 'commencement of trial' within the meaning of Section 271 of the Code of Criminal Procedure, 1898. The trial, in the instant case, became pending in this Court when that Court took cognizance of the offences in terms of Section 193 of the Code of 1898. In fact, Sub-Section (2) of Section 484 of the new Code along with its proviso lays down clearly what is saved as well as what is not saved in view of the repeal of the Code of 1898.
2. The two substantive rights, namely, the right to be tried by a jury and the right to appeal to a Division Bench conferred on the accused by the old Code, have not been taken away retrospectively by the new Code while repealing the old one. We have not found any intention appearing in the new Code which has the effect of depriving an accused of these two rights,
3. In any event, the Court of Session which took cognizance of the offences before the 1st April, 1974, has, by implication, the power to commence the trial in accordance with Section 271 of the old Code.
31. Our answers to the points of law reserved by Sudhamay Basu, J. are, therefore, as follows:
(i) No. The trial in the present case shall be held according to the provisions of the Code of Criminal Procedure, 1898.
(ii) Does not arise.
(iii) Does not arise.
(iv) The phrase 'commencement of trial' in Section 271 of the old Code is not to be construed in a sense more extended than what is stated in Section 271; but the expression 'trial pending' in Sec-tion 484 (2) (a) of the Code of 1973 is wider in its scope and amplitude than the expression 'commencement of trial' in' the said Section 271.
32. We are thankful to the learned Advocate-General who appeared as amicus curiae and gave considerable assistance to us.
33. We direct that the matter be now sent back to the learned trial Judge for disposal of the case in accordance with the answers we have given above.
Murari Mohan Dutt, J.
34. I agree.
A.K. De, J.
35. I agree.