Shaikh Hasan Abdul Karim v. King-Emperor, And Akbarkhan Attamahomed

N.J Wadia, J.:—

The appellants were tried by Blagden J. and a Special Jury at the Fourth Criminal Sessions of 1943 for the murder of a police constable, named Nasiruddin Badruddin, on December 25, 1942, and were convicted and sentenced to death on October 12, 1943. They have appealed to this Court under the provisions of the recent Act, India Act No. XXVI of 1943, under which any person convicted on a trial held by a High Court in the exercise of its Original Criminal Jurisdiction may appeal to the High Court against the conviction on any ground which involves a matter of law only, or with the leave of the appellate Court, or upon the certificate of the Judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be a sufficient ground of appeal; and with the leave of the appellate Court against the sentence passed.

The new Act received the assent of the Governor General on November 27, 1943, and under the provision of s. 5 of the General Clauses Act it came into force on that day. Prior to this appeal, on December 10, 1943, both the appellants had made applications to the Advocate General for a certificate under cl. 26 of the Letters Patent of this Court. On December 15, 1943, the appellants filed appeals against their convictions under the amending Act, and on the same day the learned Advocate General adjourned sine die the hearing of the applications made to him for a certificate under cl. 26 of the Letters Patent.

The first question which we have to consider is whether the appellants are entitled to take advantage of the provisions introduced in the Code of Criminal Procedure by the amending Act. It is a settled rule of law that no statute can be given retrospective operation unless it contains an express provision to that effect or unless such a construction is clearly implied by the language of the statute. Where a statute deals only with matters of procedure, it is to be applied retrospectively. It is contended on behalf of the appellants that the amending Act deals merely with matters of procedure and must therefore be applied retrospectively, and the appellants are therefore entitled to the benefit of it, even though they were convicted six weeks before the amending Act came into force. I am unable to accept this contention. Prior to the coming into force of this Act, a person convicted on a trial held by the High Court in the exercise of its Original Criminal Jurisdiction had no right of appeal at all, either on questions of fact or on questions of law. His only remedy was to apply to the Advocate General for a certificate that there was an error in the decision of a point or points of law, or that a point or points of law which had been decided by the High Court should be further considered, and if the Advocate General gave such a certificate, or if under cl. 26 of the Letters Patent the Judge trying the case referred any point or points of law for the opinion of the High Court, the High Court was given the power to review the case and determine such point or points of law and thereupon to alter the sentence passed by the trying Court and to pass such judgment and sentence as the High Court considered right. Under the provisions of s. 411A introduced into the Code by the amending Act, a person convicted on a trial held by the High Court is given a right of appeal on any grounds involving matters of law only, and with the leave of the appellate Court or upon a certificate of the trying Judge, on any grounds of appeal involving matters of fact only or matters of mixed law and fact or on a question of sentence. It seems to me clear that the alteration made by the amending Act is not one of procedure only. It has given a direct right of appeal to the High Court on points of law which did not exist before except in a very restricted form, and it has given a right of appeal on grounds involving matters of fact only which did not exist at all. This new right of appeal which has been conferred cannot be regarded as a mere matter of procedure.

The question whether a right of appeal can be regarded as a matter of procedure was considered by their Lordships of the Privy Council in Colonial Sugar Refining Company v. Irving. In that case a right of appeal from the Courts of the States comprising the Commonwealth of Australia which had existed till 1903 was taken away by the Judiciary Act, 1903, which provided that the several Courts of the States should be invested with Federal Jurisdiction in all matters except those specified in the Act, subject to certain conditions and restrictions, one of which was that every decision of a Court of a State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council, should be final and conclusive except so far as an appeal may be brought to the High Court. The judgment under appeal before the Privy Council was a judgment delivered by the Supreme Court of Queensland in September, 1903. Before that, on August 25, 1903, the Judiciary Act; had been passed and had received the Royal Assent. It was contended on behalf of the appellants that the provisions of the judiciary act of 1903, on which the respondent relied, were not retrospective so as to defeat a right in existence at the time when the Act received the Royal Assent. In dealing with the question their Lordships said (p. 372):

“As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mero matter of procedure? 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 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.”

This decision has been referred to and followed in Nana v. Sheku, in which Jenkins, C.J observed, after referring to the decision in Colonial Sugar Refining Company v. Irving, that to disturb an existing right of appeal is not a mere alteration of procedure. He also referred to the full bench decision in Ratanchand Shrichand v. Hanmantrav Shivbakas in which the Court had to consider the effect on a pending suit of an enactment which gave a different right of appeal and in which it was observed (p. 169):

“A suit is a judicial proceeding, and the word ‘proceedings’ must be taken to include all the proceedings in the suit from the date of its institution to its final disposal, and therefore to include proceedings in appeal. It follows, in the judgment of the Court, that in all suits commenced before the passing of the Bombay Courts' Act, the procedure must (unless another mode of procedure is expressly substituted by that Act) be the same as it would have been if that Act had not been passed.”

In Sardar Ali v. Dalimuddin the question for consideration was whether an appeal from the decision of a single judge of that Court sitting in second appeal could be accepted after the coming into force of the new Letters Patent of the Court, which came into effect on January 14, 1928, and under which there was no right of appeal from the decision of a single Judge sitting in second appeal in the absence of a certificate from him that the case was a fit one for appeal. Previous to the coming into force of the new Letters Patent there was a right of appeal to the High Court from the decision of a single Judge in second appeal without the leave of the Judge. The suit in which the appeal arose had been filed in October, 1920, and the second appeal was filed in the High Court on October 4, 1926. It was dismissed by a single Judge of the Court on April 4, 1928. It was held by a special bench of the High Court that the clause in the new Letters Patent requiring leave of the Judge could not be given retrospective effect, that the date of the presentation of a second appeal is not the date which determines the applicability of the amended clause of the Letters Patent, and that the date of institution of the suit in each case is the determining factor. It was further held that rights of appeal are not matters of procedure. Rankin, C.J observed on this point (p. 518):

“…. the reasoning of the Judicial Committee in The Colonial Sugar Refining Company's case is a conclusive authority to show that rights of appeal are not matters of procedure,….”

In Vasudeva Samiar, In re, where the same question arose, a full bench of the Madras High Court took the same view. In Badrudin v. Sitaram Vinayak, a division bench of this Court dealing with the same question which arose in Sardar Ali v. Dalimuddin (supra) and Vasudeva Samiar, In re (supra), took the contrary view, and held that the amendment made in cl. 15 of the Letters Patent of the Bombay High Court by which an appeal from a decision of a single Judge in the High Court in the exercise of second appeal jurisdiction to a division bench could lie only where the single Judge had declared the case a fit one for appeal, operated retrospectively. This decision was referred to in Vasudeva Samiar, In re, and dissented from on the ground that it must be considered as overruled by necessary implication by the Privy Council decision in Colonial Sugar Refining Company's case. I am with respect in entire agreement with this view.

The amending Act XXVI of 1943 cannot therefore be regarded as dealing with mere matters of procedure. It creates a new right of appeal which did not previously exist and must be regarded as dealing with substantive rights, and according to well established principles it cannot be applied retrospectively unless the Act itself makes an express provision to that effect or unless there is a plain implication to that effect or unless there is a plain implication to that effect in the language of the Act. There is admittedly no express provision, in the amending Act that it is to be given retrospective effect, nor can it be said that there is anything in the language of the Act from which it can be inferred that such retrospective effect was intended. It is true that s. 7 of the Act provides that cl. 26 of the Letters Patent of this Court shall cease to have effect, but this section only means that cl. 26 would not apply to cases arising after the coming into force of the new Act. It does not mean that cl. 26 of the Letters Patent would not continue to apply to cases which had arisen before the coming into force of the amending Act. Section 6 of the General Clauses Act (X of 1897) provides that where that Act or any Central Act or Regulation made after the commencement of that Act repeals any enactment previously made or thereafter to be made then unless a different intention appears the repeal shall not affect the previous operation of any enactment so repealed or any investigation, legal proceeding or remedy in respect of any such, right. Under that provision the remedy under cl. 26 of the Letters Patent is, in my opinion, open to the appellants in spite of the provisions of s. 7 of the amending Act. The accused cannot be deprived of any rights which, were open, to them at the time when the judgment against them was given.

I may mention here that the grounds of appeal, in both the appeals are purely on points of law, namely misdirection and non-direction, and do not deal with, any questions of fact. All that the appellants could therefore urge in these appeals could also be urged by them in their application under cl. 26 of the Letters Patent. They will not therefore be prejudiced by the view which I am taking that they have no right of appeal under the amending Act.

Both the appeals are therefore not competent and must be dismissed.

Weston, J.:—These are appeals by two persons, Saikh Hasan and Akbarkhan, who were tried before Mr. Justice Blagden and a Special Jury on a charge of murder, and who were convicted and sentenced to death. The date of the convictions and sentences is October 12, 1943. The two appeals were filed on December 27, 1943, and December 15, 1943, and they are claimed to be competent under the provisions of act xxvi of 1943. before this act became law, by reason of cl. 25 of the Letters Patent, no appeal lay to this Court from a sentence or order passed or made in any criminal trial before a Court of Original Criminal Jurisdiction of this High Court. Clause 25 permitted reservation by such Court of Original Jurisdiction of a point or points of law for the opinion of this Court, and cl. 26 provided for review of the case upon a point or points of law so reserved or upon certificate of the Advocate General that in his judgment the decision of a point or points of law in the case was wrong or should be further considered. By ss. 2 and 7 of act xxvi of 1943 there has been substituted for this limited power of review a right of appeal to this Court in favour of a person convicted and sentenced to imprisonment exceeding six months or fine exceeding Rs. 200. This right of appeal is without qualification on questions of law. Upon questions of sentence appeal is permitted with the leave of the appellate Court, and upon questions of fact or of mixed fact and law appeal lies with the leave of the appellate Court or upon certificate of the Judge who tried the case Act XXVI of 1943 received the assent of the Governor General in November 27, 1943, and under s. 5 of the General Clauses Act (X of 1897) it must be taken to have come into force on that date. The first question we have to consider is whether the benefit of the right of appeal created by the Act exists in favour of a person convicted and sentenced before November 27, 1943. If the present appellants are entitled to appeal, a further question of limitation will arise, as the Present appeals have been filed after the expiry of the period of seven days provided by the amendment of art. 150 of the Indian Limitation Act, 1908, made by s. 8 of Act XXVI of 1943.

The argument advanced for the appellants is that by the enactment of Act XXVI of 1943 an amendment has been made in a law of procedure, and that, under the well known rule, an amendment in a law of procedure is to be given retrospective effect, and therefore, although the convictions and sentences were recorded before the Act came into operation, the appellants are entitled to the right of appeal created by the Act. It is not suggested that there is anything in the Act which shows an express intention of the Legislature that the right of appeal is to exist in favour of persons already convicted when the Act comes into force, nor can I find anything in the Act from which such intention can be inferred.

As is indicated by s. 6 of the General Clauses Act, a statute is prima facie prospective in its operation (see also Halsbury, 2nd ed., Vol. XXXI, p. 513). No doubt an alteration in judicial procedure is retrospective in the sense that it is to be applied from the date of its coming into force to all matters, for it deals with the mode in which a right of action already existing shall be asserted, and creates no new right of action, (see Halsbury, 2nd ed., Vol. XXXI, p. 517). But I am unable to accept that the creation of a right of appeal does not create a new right of action, or that the creation of a right of appeal can be said to be a matter of procedure within an existing right of action.

There can be no doubt that if, by amendment of law, a right of appeal is taken away, that right of appeal will, survive, unless a contrary intention is expressed by the Legislature, in matters decided before or pending at the time of the amendment of the law. The decision in Colonial Sugar Refining Company v. Irving is authority for this. It was there said (p. 372):

“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 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.”

If the position was the converse of the present, that the right of appeal conferred by Act XXVI of 1943 had been taken away and the limited power of review under cl. 26 of the Letters Patent substituted, it could not, I think, be denied that the right of appeal would survive in all cases decided before the coming into operation of the amending legislation. I can see no difference in principle between the converse case and that before us, between the operation of a statute of abolishing a right of appeal and the operation of one creating it. In Delhi Cloth and General Mills Co. v. Income Tax Commissioner, Delhi, which dealt with a newly created right of appeal to the Privy Council from a decision of the High Court upon a case stated under s. 11 of the Indian Income-tax Act, it was said (p. 425):

“The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irving, where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. On the contrary, they think there is a clear suggestion that a judgment of the High Court referred to in sub-s. 2 is one which under sub-s. 1 has been pronounced by ‘not less than two judges of the High Court,’ a condition which was not itself operative until the entire section came into force.

“In their Lordships’ judgment, therefore, the petitioners in these cases have no statutory right of appeal to His Majesty in Council. Only by an exercise of the Prerogative is either appeal admissible.”

It is suggested for the appellants that this was a matter of civil rights, and that the principle underlying the above decision is that a newly created right of appeal should not be extended to decisions already made at the time the right of appeal is created, for prejudice will be caused to a party who has sought and obtained a decision which at the time it was given was final. But the Crown was a party to the criminal prosecution against the present appellants, and may be said to be interested in the finality of the decision given in that prosecution, and apart from this it seems to me that the principle against the so-called retrospective effect of amendments of law, other than amendments of procedure, is too well established to be departed from in criminal cases on an argument of the absence of prejudice to the State or to any person.

In my opinion, therefore, these appeals are not competent.

Appeals dismissed.

A.J.P