A. K. Patnaik, C. J. :-
These are references made by the Sessions Judge, Jabalpur and the Additional Sessions Judge, Indore under sub-section (2) of section 395 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') referring the following two questions of law to the High Court:
"1.(a) Whether the recent amendment dated 22-2-2008 in the Schedule-I of the Criminal Procedure Code is to be applied retrospectively?
1.(b) Consequently, whether the case pending before the Magistrate First Class, in which evidence partly, or wholly has been recorded, and now has been committed to this Court is to be tried denovo by the Court of Sessions or it should be remanded back to the Magistrate First Class for further trial?
2. The background facts briefly are that a challan under section 409 of the Indian Penal Code (for short 'the I.P.C.') was filed against the accused on 4-7-1995 before the Judicial Magistrate First Class. Evidence of 9 out of 10 witnesses in the case has already been recorded and the case was fixed for the evidence of the 10th witness, the Investigating Officer to 13-3-2008. In the meanwhile, by the M.P. Act No. 2 of 2008 called the 'Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007' (for short 'the Amendment'), the First Schedule of the Criminal Procedure Code was amended and by the amendment, offences under sections 317, 318, 326, 363, 363-A, 365, 377, 392, 393, 394, 409, 435, 466, 467, 468, 471, 472, 473, 474, 475, 476, 477 and 477-A of the Indian Penal Code were
made triable by the 'Court of Sessions' instead of the 'Magistrate of the First Class'. The amendment received the assent of the President on 14-2-2008 and was published in the M.P. Gazette (Extra-ordinary) on 22-2-2008. In view of the aforesaid amendment, the Judicial Magistrate First Class committed the case to the Court of Sessions Judge, Jabalpur vide its order dated 31-3-2008. The Sessions Judge, Jabalpur, after hearing the learned counsel for the parties has referred the aforesaid two questions of law for the opinion of the High Court.
3. We have heard Mr. S. C. Datt, learned Senior Counsel, Mr. Surendra Singh, learned Senior Counsel and Mr. T. S. Ruprah, learned Additional Advocate General appearing for the State and we find that in the amendment, there is no express provision whatsoever as to whether the pending cases under the sections of the Indian Penal Code which are to be tried by the Court of Sessions instead of the Magistrate of the First Class by the amendment to the First Schedule of the Criminal Procedure Code, are to be transferred and made over to the Court of Sessions, or are to be retained with the Judicial Magistrate First Class. In the absence of such express provision in the amendment, the question is whether the cases which are pending in the Court of Judicial Magistrate First Class at the time when the amendment was published on 22-2-2008 will have to continue in the Court of Judicial Magistrate First Class or will have to be transferred to the Court of Sessions, hi Manujendra Dutt vs. Purnedu Prosad Roy Chowdhury and others, AIR 1967 SC 1419, one of the questions which arose in the appeal by certificate granted by the High Court of Calcutta for decision of the Supreme Court was whether the Controller under the Calcutta Thika Tenancy Act, 1949 ceased to have jurisdiction in respect of proceedings pending before him with the deletion of section 29 from the Calcutta Thika Tenancy Act, 1949 by the Amendment Act IV of 1953. The Supreme Court held that though section 29 was deleted by the Amendment Act of 1953, the deletion would not affect pending proceedings and would not deprive the Controller of jurisdiction to try such proceedings pending before him at the date when the Amending Act came into force. The Supreme Court further held that though the Amending Act did not contain any saving clause under section 8 of the Bengal General Clauses Act, 1899, the transfer of suit having been lawfully made under section 29 of the Act, its deletion would not have the effect of altering the law applicable to the claim in the litigation. The Supreme Court found that there was nothing in section, 8 of the Amending Act of 1953 suggesting a different intention and therefore, held that the deletion would not affect the previous operation of section 5 of the Calcutta Thika Tenancy Act or the transfer of the suit to the Controller or anything duly done under section 29. In the aforesaid decision, therefore, the Supreme Court has held that in absence of any clear provision in the Amending Act affecting the jurisdiction of the Controller to try proceedings pending before him, the Controller would continue to have jurisdiction to try proceedings pending before him at the date when the amendment came into force.
4. The aforesaid decision of the Supreme Court in Manujendra Dutt vs. Purnedu Prosad Roy Chowdhury and others (supra) was followed in Commissioner of Income-tax vs. Smt. R. Sharadamma, AIR 1996 SC 3199. The question that was referred to the High Court under section 256 (1) of the Income Tax Act, 1961 was whether on the facts and circumstances of the case, the
Income Tax Appellate Tribunal was right in law in cancelling the penalty levied by the Inspecting Assistant Commissioner under section 271-C of the Income Tax Act, 1961 holding that the Inspecting Assistant Commissioner had no jurisdiction to levy penalty under section 271-C of the Income Tax Act, 1961 in view of the changed provisions of law. The High Court answered the question in favour of the assessee and the Department carried the matter to Supreme Court. The Supreme Court referred to the decision in Manujendra Dutt vs. Purnedu Prosad Roy Chowdhury and others (supra) and held that the Inspecting Assistant Commissioner did not lose the jurisdiction to continue the proceedings pending before him on 31-3-1976 by virtue of the deletion of sub-section (2) of section 274 of the Taxation Laws (Amendment) Act, 1975 with effect from 1-4-1976 and he was entitled to continue with those proceedings and pass appropriate orders according to law because once the Inspecting Assistant Commissioner was seized of the matter, he did not lose seizing thereof on account of deletion of sub-section (2) of section 274 of the Income Tax Act, 1961. In para 7 of the judgment in the aforesaid case at page 3200 of the AIR, the Supreme Court has referred to the general principle that a law which brings about a change in the forum does not affect pending actions unless an intention to the contrary is clearly shown and one of the modes by which such an intention is shown is by making a provision for change over of proceedings from the Court or tribunal where they are pending in the Court or the Tribunal which, under the new law, gets jurisdiction to try them.
5. In a comparatively recent case of R. Kapilanath vs. Krishna, AIR 2003 SC 565, a submission was made by the appellant that the Karnataka Rent Control Act, 1961 was enacted, inter-alia, to control evictions of tenant and the Act had a wide application. But sub-section (7) of section 2 of the Act excluded application of the Act to certain categories of premises and one of these categories, which had been excepted from the application of the Act was 'any premises belonging to religious or charitable institutions under the management of the State Government'. By the Karnataka Rent Control (Amendment) Act, 1994, the words 'under the management of the State Government' were deleted and the effect to the amendment was that while earlier premises belonging to religious or charitable institutions under the management of the State Government were exempted from the operation of the Act subsequent to the amendment, the scope of the excepted category was enlarged so as to cover all premises belonging to religious and charitable institutions irrespective of the fact whether they are under the management of the State Government or not. The proceedings for eviction of a tenant under section 21 of the Act were maintainable in a Court and Clause (d) of section 3 defines the Court of Munsif. The proceedings were initiated in that case in the year 1986 in the Court of Munsif and a revision petition was filed before the Additional District Judge in the year 1990 and came to be decided on 14-9-1995. While the revision proceedings were pending, 1994 Amendment came into force and the effect of the amendment was that the suit premises was taken out of the operation of the Act and the Munsif lost jurisdiction to try the case of eviction over the premises. The learned Additional District Judge without taking note of this change in law directed the proceedings held before the Munsif to be nullity for want of jurisdiction in view of the change
in law and the Supreme Court relying on Principles of Statutory Interpretation - G.P. Singh, 8th Edition 2001, p.442, held in paragraph 4 at page 567 of the AIR :
"..........So far as the present case is concerned, the only submission made by the learned counsel for the appellant is that the effect of the amendment is to deprive the Court of Munsif of its jurisdiction to hear and decide proceedings for eviction over such premises as the suit premises are. In other words, it is a change in forum brought during the pendency of the proceedings. The correct approach to be adopted in such cases is that a new law bringing about a change in forum does not affect pending actions, unless a provision is made in it for change over of proceedings or there is some other clear indication that pending actions are affected. (See Principles of Statutory Interpretation, Justice G.P. Singh, 8th Edition 2001, p.442)....."
The aforesaid discussion of law laid down by the Supreme Court is thus clear that the new law bringing about the change of forum does not affect pending actions unless a provision is made in it for change over of proceedings or there is some other clear indication that pending actions are affected.
6. In view of the aforesaid law laid down by the Supreme Court, we are of the considered opinion that all cases pending in the Court of Judicial Magistrate First Class as on 22-2-2008 are not affected by the Amendment and will be continued to be tried by the Judicial Magistrate First Class because there is no provision in the Amendment or no clear indication in the Amendment that pending cases before the Judicial Magistrate First Class are to be made over to the Court of Sessions. All cases which were pending before the Judicial Magistrate First Class as on 22-2-2008 if, in the meanwhile, committed to the Court of Sessions will be sent back to the Judicial Magistrate First Class for trial in accordance with law. We answer the reference accordingly. The reference made by the learned Sessions Judge Jabalpur as also the reference made by the learned Additional Sessions Judge, Indore are disposed of.
Order accordingly.