The State v. Ex. Major P. K. Swami & Another

The two accused in the case were committed by the III Presidencey Magistrate, Madras, to take their trial in the High Court Sessions, for offences under s. 120-B of the Indian Penal Code, and s. 5 (2) read with s. 5 (1) (c) of Act II of 1947 and s. 477 read with s. 34 of the Indian Penal Code. The offences under s. 5 (2) read with s. 5 (1) C of Act II of 1947 and s. 477 I.P.C are offences triable exclusively by the Sessions Court. The order of commitment was passed on the 8th July 1952 and the High Court became seized of the case immediately after the order of committal was passed on that day.

On the 28th July 1952, that is 20 days after the said order of committal. Act XLVI of 1952 was passed by the Parliament in and by which, among other things, the forum for the trial of certain offences, one of which is the offence under s. 5 (2) of Act II of 1947 was altered, s. 7 of the Act is as follows:

“(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, (Act V of 1898), or in any other law, the offences specified in sub-section (1) of s. 6 shall be triable by Special Judges only.

(2) Every offence specified in sub-see. (1) of s. 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges, than one for such area, by such one of them as may be specified in this behalf by the State Government.

(3) When trying any case, a Special Judge may also try any offence other than an offence specified in s. 6 with which the accused may, under the Code of Criminal Procedure, be charged at the same trial.”

It will thus be seen that the said offence uuder s. 5 (2) of Act II of 1947 is triable by a Special Judge only, who is to be appointed by the State Government. S. 8 provides for the procedure and powers of Special Judges in the trial of such offences. Under that section a court of the Special Judge shall be deemed to be a court of Sessions trying the case without a Jury or without the aid of assessors. S. 6 of the Act (XLVI of 1952) provides that the State Government may by notification in the official gazette appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification. The State has accordingly by notification No. 918 dated 25-8-52 in G. O. Ms. No. 310 (Home) appointed the Sessions Judge of Chingleput as a Special Judge not only for the district of Chingleput but also for the area covering the local limits of the original jurisdiction of the High Court of Madras.

It is now contended that s. 7 of the Act (XLVI of 1952) is retrospective in its operation and after the said enactment the High Court has no jurisdiction to try the offence under s. 5 (2) of Act II of 1947 and that it is triable only by the Sessions Judge of Chingleput. It is well-settled that “no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication.” It is equally well-settled that a statute which affects the procedure only is retrospective and “no one has any vested right in any course of procedure. He has only a right of prosecution or defence in the manner prescribed for the time being by or for the court in which he sues and if an Act of Parliament alters that mode of procedure he has no other light than to proceed according to the altered mode.”

The question now is whether the trial of the accused in this Court relates to a vested right or a right in existence on the date of the enactment of Act XLVI of 1952 or to a mere matter of procedure. In Colonial Sugar Refining Co. v. Irving 1905 A.C 369, the question was whether a suitor could be deprived of a right of appeal to the Privy Council which he had on the date he instituted the suit by a subsequent change in the law and it was held he could not be deprived. Lord Macnaghten observed;

“It seems to their Lordships that the question does not admit of doubt. To deprive a suitor 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 cither case, there is an interference with the 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.” It will be seen that even the transferring of an appeal to a new tribunal is held to be an interference with the vested right. This decision has been followed in all the High Courts and the Federal Court of India. In Venugopala v. Krishnaswami 1943 M.W.N 345 Varadachariar, J. following the decision in Colonial Sugar Refining Co. v. Irving observed: “Their Lordships' decision recognised 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.”

The learned Judge further observed that:

“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 different circumstances.”

and quotes with approval the observations of Wilde, C.J in Marsh v. Higgins 1850 9 C.B 551;

“It must have been well known to both branches of the legislature that strong and distinct words would be necessary to defeat the vested right to continue an action which has been well commenced.”

This decision established that a right to continue an action which has been well commenced is a substantive right.

The principle of these decisions has been extended to and applied in the trial of criminal cases. The question is when can a criminal case be said to have well commenced. It has been well established that once a criminal case is well commenced such rights as the accused has—such as the right to have a case tried with the aid of assessors, the right to have the case tried with the aid of Jury, the right of appeal to a superior court and even a right to bail are substantive rights which cannot be affected by a change in the law (vide Srinivasachari v. The Queen 1883 I.L.R 6 Mad. 336, The Crown v. Fitzmaurice 1925 I.L.R 6 Lah. 262 and Shreekant Pandurang v. Emperor 1943 A.I.R Bom. 169 at 175. I would refer in this connection to one of the above cases, namely, the decision in The Crown v. Fitzmaurice. In that case a European British subject was committed on the 11th of June 1923 to the Court of Sessions to take his trial for an offence under Ss. 420 and 477-A of the Indian Penal Code. But the right to be tried by a Jury was taken away by Act XII of 1923 which came into force on the 1st of September 1923. The accused appeared before the Sessions Judge in October 1923 and asked for trial by a mixed jury. It was held that the right of trial by Jury was substantive right and not a mere matter of procedure; and the accused who had this right when he was committed for trial could not be deprived of it by the amendment by Act XII of 1923. Zafar Ali, J. following the decision in Colonial Sugar Refining Co. v. Irving held that “A person who had the right to be tried by a Jury when he was committed for trial could not be deprived of it, it being a substantive right.” Sir Henry Scott-Smith, J. who agreed with Zafar Ali, J. observed that the right of trial by a Jury which was vested in Sergeant Fitzmaurice by the Code of Criminal Procedure 1898 was a substantive right and not a mere matter of procedure.

As I have already stated the question is when a criminal case can be said to have well commenced? In the Full Bench case in Banwari Gope v. The King-Emperor* 1943 A.I.R Pat. 18 Fazl Ali, J. held that a criminal case must be deemed to have well commenced as soon as the magistrate takes cognizance of the case and the accused acquired vested right to have his case tried according to the procedure on the date when the magistrate takes cognizance of it. A slightly different view is taken in Shreekant Pandurang v. Emperor where Divatia, J. observed as follows;

“In cases which could be tried by a magistrate, the trial may begin when cognizance was taken but in cases which are exclusively triable by a court of session, the trial does not begin unless and until an order of commitment is made. All the previous proceedings before the commitment are stages of enquiry at the end of which the accused may or may not be committed.”

The learned Judge was of the view that in cases exclusively triable by the Sessions the case can be said to have well commenced when the order of commitment is made and such rights as trial by jury etc. the accused had on the date of the order of commitment are rights vested in him and he could not be deprived of those rights by a change in the law. The observation in The Crown v. Fitzmaurice is clear that if the accused had a right to have his case tried by a Jury on the order of commitment he could not be deprived of it.

I would here refer to the decision of the Full Bench in Ramsingh v. Crown 1950 E.P Reports 25. In that case by notifications dated 20-3-1947 and 23-8-1947 issued by the Punjab Government under the Punjab Public Safety Act, the district of Ludhiana was declared to be a dangerous area within the meaning of the Act. Under the Act the declaration that the area is dangerously disturbed involved certain changes in the procedure for the trial of criminal cases. One such offence for which the trial under the Code was not to be followed but the one under the Act is to be followed was the offence under s. 302 I.P.C s. 37 of the Act which lays down the procedure is as follows:

“For purposes of trials under this Act the Code shall be deemed to have been amended as follows:

(1) (i) For Ss. 208 to 220 inclusive, the following shall be deemed to have been substituted, namely:

When it appears from the police report that the offence is one triable exclusively by a court of Sessions or one which in the opinion of the magistrate ought to be tried by such court, the magistrate shall, on perusal of the police report or when the accused appears or is brought before him, make over the accused to the Sessions Court having jurisdiction and shall forward the accused if in custody and shall send all police reports relating to the case to that court and that court shall thereupon proceed with the trial of the case following the procedure for the trial of Summons case.”

On 30th September 1948 the accused who was charged with the offence under s. 302 I. P. C. was committed to the sessions at Ludhiana and the trial commenced on the 18th November 1948. In the meantime by a notification dated 22nd October 1948, appearing in the gazette of 29th October 1948, the notification declaring the Municipal area of Ludhiana as dangerous was cancelled. The question arose whether the trial should proceed as in a summons case (in accordance with the provisions of s. 37 of the Punjab Public Safety Act) without the aid of assessors or jury or whether the trial should be in accordance with the provisions of the Criminal Procedure Code. The Full Bench held that the trial should proceed under s. 37 of the Act as in a summons case in accordance with the provisions of the law in force on the date of the order of committal (underlining is mine). The observations of Achhru Ram J. who delivered the leading judgment are worth quoting:

“It is well settled that no one has any vested right in any procedural rule and that, therefore, any change in the procedural law has retrospective effect in the sense of being applicable even to judicial proceedings initiated before the change, provided of course this can be done without affecting any substantive rights acquired by any of the parties to the proceeding before the change. It is however equally well settled that the validity or operation of any order validly passed or any act validly done by a judicial tribunal in the procedural law for the time being in force cannot be affected by any subsequent change in the said law. It therefore follows that the action taken by the magistrate under the provisions of sub-sec. (1) of s. 37 on the 30th September 1948, in making over the case to the sessions court cannot be affected by the subsequent cancellation of the notification in s. 2 (b) in respect of Ludhiana district and the consequent change of procedure applicable to the trial of cases like the present in the said district. By reason of that action the learned Sessions Judge was properly and validly seized of the case on the day the Provincial Government chose to make an order for the cancellation of the notification and he continued to be seized of the case even after the said Government had cancelled the notification.”

This case establishes that if an order had been validly passed committing a case to the court of sessions under the law then in force, a subsequent change in the law would not divest the court of Sessions of its jurisdiction to try it and the accused acquired a vested right to have the case continued in that court and tried according to the law in force on the date of the order of commitment (Vide s. 6 of the General Clauses Act and the observations of Varadachariar, J. in the decision cited above).

It will be clear from the principles laid down in the above decisions that on the date of the order of commitment in this case the accused had a vested right to be tired in this court with the aid of a Jury and he could not be deprived of that right.

Assuming the Act to be retrospective, to what extent is it retrospective? Maxwell on Interpretation of Statutes, 9th Edition page 222 says:

“A statute is not to be construed to have a greater retrospective operation than its language renders it necessary. Even in construing a section which is to a certain extent, retrospective the maxim ought to be borne in mind as applicable whenever the line is reached at which the words of the section ceases to be plain.”

After enacting s. 7, the Act provides for pending cases in s. 10, which is as follows:

“All cases triable by a special Judge under s. 7 which immediately before the commencement of this Act were pending before any magistrate shall, on such commencement be forwarded for trial to the special Judge having jurisdiction over such cases.”

It will be seen that the Act does not make provision for any cases which are pending before a court other than that of a magistrate for example-a case pending before this court. The legislature must be deemed to have been aware of cases pending before courts other than magistrates and yet it has refrained from making any provision for them. By necessary intendment it is reasonably plain that the trial of cases pending before courts other than those pending before magistrates is not affected. From the fact that the legislature thought fit to enact s. 10 it is clear that s. 7 is not intended to be retrospective and at any rate not to have greater operation than what is indicated in the said s. 10.

I am of opinion that the High Court is the only Court competent to try this case and the Sessions Judge of Chingleput is not competent.

Further, there is no provision of law under which a case pending before the High Court Sessions can be transferred to any other court. The Letters Patent and the Criminal Procedure Code provide for the transfer of cases to the High Court from other courts; and there is no provision for transfer of a case pending before it to any other court. In the absence of any such provision a case pending before the High Court Session cannot be transferred to any other court.

The result is that the trial will go on before this court. The case is adjourned to November Sessions.

N.T.R