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Ramzan Darzi and ors. Vs. Mst. Azizi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1976CriLJ897
AppellantRamzan Darzi and ors.
RespondentMst. Azizi and ors.
Cases ReferredUnited Provinces v. Mt. Atiqa Begum
Excerpt:
- .....is:whether the criminal p.c. (amendment) act, 1974, act ii of 1974, acts retrospectively on the pending actions?15. by virtue of code of criminal procedure (amendment) act, 1974, shortly called- the 'amending act', the state legislature added a proviso to section 145 of criminal p.c. which runs thus:provided that where the dispute likely to cause a breach of peace concerns any land as defined in the j. & k. agrarian reforms act, 1972, the powers under this section shall be exercisable only by the district magistrate or an executive magistrate of the first class.' previously section 145(1) stood as under:whenever a chief judicial magistrate, or any other judicial magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach.....
Judgment:

Jaswant Singh, C.J.

1. (Majority View): The following important question of law of general importance arising in the above noted four cases has been referred to this Bench for determination :

Whether the Amendment made in Section 145 of Criminal P.C. by the Criminal P.C. (Amendment) Act, 1974, Act II of 1974, investing the Executive Magistrates with exclusive power to deal with cases arising under the said section with respect to land as defined in the J, & K. Agrarian Reforms Act, 1972, has the effect of ousting the jurisdiction of the Judicial Magistrate even with regard to the cases pending before the latter on the coming into force of the Amending Act?

2. For a proper determination of this question it is necessary to refer to Section 2 of the Amending Act which provides:

In Section 145 of the Code of Criminal Procedure, Samvat 1989 (hereinafter referred to as the Principal Act):

(i) the full stop at the end of subsection (1) shall be substituted by a colon and thereafter the following proviso shall be inserted namely:

Provided that where the dispute likely to cause a breach of peace concerns any land as defined in the J. & K. Agrarian Reforms Act, 1972, the powers under this section shall be exercisable only by the District Magistrate or an Executive Magistrate of the first class.(ii) In Sub-section (10) for the words 'the Magistrate' the words 'Executive Magistrate' shall be substituted.

3. It is now well settled that where the repeal or amendment of any Act or provision of a Statute relates to only procedure the Amendment must, unless it is specifically provided, be presumed to be retrospective as no one has a vested right to a particular procedure being adopted in any proceeding. This rule of construction has been held not to apply to cases where rights vested in or accrued to the parties are affected by a repeal or Amendment of Statute even if it relates to procedural law.

4. It will be profitable at this stage to refer to the following passage occurring at page 198 of the eighth edition of the 'Interpretation of Statutes' by the late Sir Peter Benson Maxwell:

The general principle is that the presumption against a retrospective consruction has no application to enactments which affect only the procedure and practice of the courts even where the alteration which the statute makes has been disadvantageous to one of the parties.

5. Reference may also 1m made with advantage to the following passages occurring in Sections 285 and 288 of the Construction of Statutes by Earl T. Crawford, 1940 edn.

Section 285.

As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore In the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions.

Section 288

A court may 'be given Jurisdiction over a cause of action which arose before the jurisdictional statute was passed. On the other hand, it is also possible that a statute may be construed so as to take jurisdiction from a court over a case already pending, although such an intent should be clearly expressed in the statute. So also a statute transferring jurisdiction over certain causes of action, may operate on existing causes of action.

Statutes pertaining to venue, like those pertaining to jurisdiction, may, too, where such is the clear legislative intent be construed as applicable to actions already existing or pending when they are enacted.

6. It is not disputed before us that no vested right relating to evidence or the manner of prosecution or defence of the aforesaid proceedings or determination of the dispute involved therein has been affected or interfered with by the aforesaid Amending Act. The only change introduced toy the aforementioned provision of the Amending Act is the change of forum or transfer of jurisdiction.

7. The point that therefore remains for consideration is whether the choice of forum relates to the realm of procedure or not. That the choice of forum is a matter of procedure and is not a matter of substantive right and in most cases a new Act would have a retrospective effect so far as the choice of forum is concerned appears to be well settled. Reference in this connection may be made to a decision of the Allahabad High Court in Hazari Tewari v. Mt. Maktula AIR 1932 All 30, where Sulaiman, Ag. C. J. while interpreting the new Tenancy Act which conferred jurisdiction on the revenue court and barred the jurisdiction of the civil court in the matter of a suit in respect of which adequate relief could 'be obtained by way of a revenue suit observed as follows:

The choice of forum is a matter of procedure and not a substantive right, and in most cases a new Act would have a retrospective effect so far as the choice of forum is concerned.

8. To the same effect is a decision of the Madras High Court in V. C. K. Bus Service v. H. B. Sethna : AIR1965Mad149 where it was held as follows:

No litigant has or can have, vested right in a particular forum. He cannot say as a matter of right that his suit or application should toe tried by this or that forum which existed on the date his cause of action arose. Forum belongs to the realm of procedure and does not constitute substantive right of a party or a litigant. It should also be borne in mind that cause of action is not to be confused with a forum, and a cause of action, whatever vested rights it may carry with it, does not include a right to insist upon a particular court or Tribunal or Judge or any other. It follows, therefore, that any statutory law which changes a forum, may not raise a question of retrospective operation, unless, of course in exceptional cases, it is inseparably intertwined with vested rights.

9. By virtue of the aforesaid Amending Act the Executive Magistrates instead of the Judicial Magistrates have been empowered to exercise power under Section 145 of the Code of Criminal Procedure in respect of disputes likely to cause a breach of peace concerning land as defined in the J. & K. Agrarian Reforms Act, 1972, and no substantive right has been touched, affected or Impaired. As the choice of forum relates to the realm of procedure end no litigant can claim a substantive right in respect thereof, I m of the opinion that the aforesaid Amending Act is retrospective In operation and the cases pending before the Judicial Magistrates which come within the sweep of the Act, should be transfer- red to the Executive Magistrates to be dealt with by them.

10. The above view taken by me is reinforced by the key words used by the legislature in the Amending Act viz., 'the power under this section i.e., Section 145 shall be exercisable only by the District Magistrate or an Executive Magistrate of the first class.' Now the passing of even a final order cannot but be held to be an exercise of the powers under Section 145 of the Code of Criminal Procedure. There is therefore no manner of doubt that the aforesaid words used in the Amending Act make the Act retrospective in operation and have the effect of depriving the Judicial Magistrates of the jurisdiction to deal with those cases which are contemplated by the aforesaid Amending Act with effect from 20th March, 1972.

11. The ruling cited in support of the other view by some of the learned Counsel, viz : AIR1959Pat284 and AIR 1960 Cri 61 : 1960 Cri LJ 384 are clearly distinguishable and have no bearing on the present cases in view of the fact that the Amending Act does not, as already stated, affect any fundamental right.

12. In the result the question referred to this Bench is answered in the affirmative.

Mian Jalal-Ud-Din, J.

13. I agree.

MUFTI, J.: (Minority View):

13-14. The short question before the Full Bench is:

Whether the Criminal P.C. (Amendment) Act, 1974, Act II of 1974, acts retrospectively on the pending actions?

15. By virtue of Code of Criminal Procedure (Amendment) Act, 1974, shortly called- the 'Amending Act', the State Legislature added a proviso to Section 145 of Criminal P.C. which runs thus:

Provided that where the dispute likely to cause a breach of peace concerns any land as defined in the J. & K. Agrarian Reforms Act, 1972, the powers under this section shall be exercisable only by the District Magistrate or an Executive Magistrate of the First Class.' Previously Section 145(1) stood as under:Whenever a Chief Judicial Magistrate, or any other Judicial Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.

16. The effect of the Amending Act was that it took away the power and jurisdiction of the Judicial Magistrates to deal with matters arising under Section 145 in respect of land as denned in the Jammu end Kashmir Agrarian Reforms Act, 1972 and vested the same in the Executive Magistrates. So the question has arisen whether actions under Section 145, Cr.P.C. in respect of land as so defined, which had been commenced before and were pending on the date of coming into force of the Amending Act, should continue to be tried and disposed of by the Judicial Magistrates or that they should be transferred to the respective Executive Magistrates. In other words, the question is: whether the Amending Act is retrospective in the sense that it affects the pending actions involving land as defined in the Agrarian Reforms Act rendering it necessary for the Judicial Magistrates to transfer such actions to the respective Executive Magistrates.

17. There can be hardly any doubt or dispute as regards the general principle that no litigant has or can have vested right in the choice of particular forum which is a mere matter of procedure. Consequently if the forum is changed as a result of the alteration in law, a litigant, to whom cause of action has arisen before the law was so altered, cannot insist that his action should be entertained and tried by the forum, which existed when the cause of action arose to him. Thus the alteration in forum would not only govern the future actions but the accrued actions as well. In this sense the new law may be held to be retrospective. But it does not necessarily follow that it is retrospective in the other sense of being applicable to pending actions. That can be so only if the new law so provides, either expressly or by necessary implication. Because the law is well settled that a litigant has a vested right in the forum before which the action was commenced.

18. Section 288 of the Construction of Statutes by Earl T. Crawford, 1940 edn. quoted by my Lord the Chief Justice bears out the principles stated above when it says:

A court may be given jurisdiction over a cause of action which arose before the jurisdictional statute was passed. On the other hand, it is also possible that a statute may be construed so as to take jurisdiction from a court over a case already pending, although such an intent should be clearly expressed in the statute. So also a statute transferring jurisdiction over certain causes of action, may operate on existing causes of action.

19. In the Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369 the case was pending when the Judiciary Act came into force in which the decision, from which an appeal would have lain to the Queen in Council, became appealable only to the High Court. The question arose whether an appeal lay to the Privy Council. Replying the question in the affirmative Lord Macnaghten observed :

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.

20. Implicit in the decision is the principle that a litigant has a vested right to have his action tried and disposed of by the forum before which it was commenced and that any change in the forum will not affect such action unless clear intention to that effect is manifested. The decision may even be treated as an authority for the proposition that the transfer of the action to a new forum amounts to the abrogation of the right of action.

21. In Venugopala Reddiar v. Krishnaswami Reddiar AIR 1943 FC 24 the principle was expressly laid down that a litigant has a vested right to have his action tried and disposed of in due course by the Tribunal before which it was commenced and that this right cannot be taken away except by a clear indication to that effect. In this case the court relied on the decision of the Privy Council in 1905 AC 369 and observed :

It will be noticed that in that case the Judiciary Act was passed during the pendency of the action in the Court of first instance and their Lordships' decision recognized that, from the date of the initiation of the action, the suitor had a right of appeal to a superior tribunal according to the state of the law as it stood at the time of the commencement of the proceeding. This necessarily involves the recognition of an equally valuable right that the proceedings should in due course be tried and disposed of by the tribunal before which it had been commenced. This principle that a statute should not be so interpreted as to take away an action which has been well commenced has been affirmed in various cases in differing circumstances. In (1850) 9 CB 551, it was observed by Wilde C. J. that, it must have been well known to both branches of the Legislature that strong and distinct words would be necessary to defeat a vested right to continue an action which has been well commenced (cf. (1876) 1 Ch D 48 and see also (1904) ILR 27 Mad 538 and (1909) ILR 32 Mad 140.

22. Great stress was laid on the decisions in Hazari Tewari v. Mt Maktula AIR 1932 All 30 and V.C. K. Bus Service (P.) Ltd., Coimbatore v. H. B. Sethna : AIR1965Mad149 to canvass support for a contrary view. The argument is based on a misreading of these judgments. They support the view expressed above rather than go against it. In the Allahabad case, by reason of Agra Tenancy Act, 1926 the jurisdiction of Civil Courts was taken away to try certain classes of suits and Revenue Courts were constituted for deciding such cases. Before Sulaiman, Ag. C. J. and Smith, J., it was contended that the new Tenancy Act was not applicable because the cause of action arose before that Act came into force. Repelling the argument Sulaiman, Ag. C. J., speaking for the Court, observed :

The choice of forum is a matter of procedure and not a substantive right, and in most cases a new Act would have a retrospective effect so far as the choice of forum is concerned. The analogy of a new Act not affecting a pending action does not apply.

(Emphasis supplied).

23. The observation made at the end of the paragraph is meaningful and intended to convey the principle stated above that a law providing for the change of forum will not, in the absence of clear indication to the contrary, affect a pending action. The learned Judge stated the principle categorically in a subsequent case United Provinces v. Mt. Atiqa Begum AIR 1941 FC 16 observing at page 37:

Undoubtedly, an Act may in its operation be retrospective and yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so. It is a well recognized rule that statutes should, as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts, nor gaps filled up in order to widen its applicability, it is a well established principle that such statutes must be construed strictly and not given a liberal interpretation.

24. In the Madras case, Section 110(f) of the Motor Vehicles Act raised a bar to a civil court entertaining any claim for compensation in regard to a motor accident after the Motor Accidents Tribunal was constituted under the Act. It was contended before Veeraswami J. that this bar to be Civil Court's jurisdiction could apply only to cases of accidents which occurred subsequent to the date of the constitution of the tribunal and not to accidents occurring earlier to that date. Repelling the argument Veeraswami J. observed:

I take it as irrefutable law that no litigant has, or can have, vested right in a particular forum. He cannot say as a matter of right that his suit or application should be tried by this or that forum which existed on the date his cause of action arose. Forum belongs to the realm of procedure and does not constitute substantive right of a party or a litigant. It should also be borne in mind that cause of action is not to be confused with a forum, and a cause of action, whatever vested rights it may carry with it, does not include a right to insist upon a particular court or Tribunal or Judge or any other. It follows, therefore, that any statutory law which changes a forum, may not raise a question of retrospective operation, unless, of course, in exceptional cases, it is inseparably intertwined with vested rights.

25. The decision concedes the principle that where the change of forum touches a vested right, the statutory law providing for such alteration will not be construed to 'be retrospective so is to affect that right.

26. In this view the Amending Act cannot be held to act retrospectively on the pending actions under Section 145 Cr.P.C. unless it manifests an intention to the contrary, either expressly or by necessary implication. There is no express provision in the Amending Act directing that the pending actions as regards land defined in the Agrarian Reforms Act shall be transferred to the respective Executive Magistrates. The Legislature could not be unaware of the fact that numerous cases must be pending before the courts of Judicial Magistrates under Section 145, Cr.P.C. touching land as so defined. If it still left the matter uncovered, the inference is obvious. Merely because the Amending Act provides that the power and jurisdiction of the Executive Magistrates shall be exclusive, it does not follow that the Amending Act was intended to affect the pending actions. It will perhaps be too much to hold so. In this background I am of the opinion that the amending Act does not apply to the pending actions and respectfully record my dissent from the view to the contrary expressed by my Lord, the Chief Justice, and my brother, Mian Jalal-ud-Din, J.


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