Fazl Ali, J.:— These are two revision applications by certain persons who have been tried and convicted by Special Magistrates appointed under Ordinance II of 1942 and the point which has been urged on their behalf is that the Special Magistrates had no jurisdiction to try them inasmuch as before the Ordinance came into force the Subdivisional Officers of Dinapur and Patna City respectively had taken cognizance of the offences said to have been committed by the petitioners and the criminal proceedings against them had started under the ordinary law.

Ordinance II of 1942 as amended by Ordinance XLII of 1942 empowers the Provincial Governments to constitute Special Courts of criminal jurisdiction on being satisfied of the existence of an emergency arising from a hostile attack on India or a country neighbouring on India or from the imminence of such an attack or from any disorder within the province. The provisions relating to the Special Magistrates, with whom alone we are concerned at present, are to be found in sections 9 to 14 of the Ordinance. These sections provide that any Presidency Magistrate or Magistrate of the first class who has exercised powers as such for a period of not less than two years may be invested by the Provincial Government with the powers of a Special Magistrate under the Ordinance and that these Magistrates shall try such offences or classes of offences, or such cases, or classes of cases other than offences or cases involving offences punishable under the Indian Penal Code with death, as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct. The Special Magistrate, after he is appointed, is to try cases which are placed before him according to the procedure laid down in section 6 and may pass any sentence authorised by law, except a sentence of death or of transportation or imprisonment exceeding seven years. Where, however, he passes a sentence of transportation or imprisonment for a term exceeding two years, an appeal lies to the Special Judge having jurisdiction in the area or, if there is no Special Judge for the area, to the High Court in a Presidency town and elsewhere to the Court of Session.

It appears that the Ordinance II of 1942 was declared to be in force in the province of Bihar on the 21st August, 1942, and after the Special Courts were duly created, the District Magistrate of Patna, who was presumably the Crown Officer empowered by the Provincial Government to direct what classes of cases were to be tried by the Special Magistrates appointed under the Ordinance, first passed an order on the 23rd August, 1942, authorising all the Special Magistrates in the district to try such cases as were specified in the order and then on the 27th August, 1942, directed certain offences answering the description to be found in section 10 of the Ordinance to be tried by them. The language of these orders was subjected to certain criticisms, but as those criticisms are of a very minor nature and will not affect the decision of the present cases, I will not refer to them but proceed at once to state the relevant facts of the two cases which are before us.

The petitioners in Criminal Revision no. 638 are four in number and they have been prosecuted for contravening rules 56 and 35 of the Defence of India Act by taking part in a procession which had been banned by the order of the District Magistrate and by causing damage to the telephone line within the compound of one Mr. Bashir, a Group Warden, on the 13th August, 1942. In regard to these offences which are said to have been committed by these petitioners on the 13th August, 1942, the Subdivisional Officer of Dinapur recorded the following order in the order-sheet on the 14th August:

“Received complaint under section 36 of the Defence of India Rules. Cognizance taken. The accused Banwari Goala, Jagernath Halwai, Girdhari Chamar and Janki Halwai are produced in custody of Dinapur Police. They do not complain of mal-treatment by the escorting party. They are committed to custody till 28th August 1942.”

The next order which was recorded on the 28th August, 1942, is to the following effect:—

“Put up before Special Magistrate on 1st September, 1942.”

Then comes a third order which is dated the 29th August, 1942, and it reads as follows:—

“I.O reports that the accused (1) Jagernath Halwai, (2) Banwari Gope, (3) Girdhari Chamar and (4) Janki Halwai be prosecuted under section 56, D.I Rules. Cognisance has already been taken on the previous report. Put up on 1st September, 1942, before the Special Magistrate.”

After this date the case was sent to a Special Magistrate for disposal on the 1st September, 1942, and on the 4th September, 1942, the Magistrate in question framed a charge not only under rule 56 but also under rule 35 of the Defence of India Rules. On the 7th September, 1942, the Special Magistrate found the petitioners guilty on both the charges and sentenced them to undergo rigorous imprisonment for three years under rule 35, clause (4), but he passed no separate sentence under rule 56(4). The point which has been emphasised in this case is that the Subdivisional Officer of Dinapur had, as was expressly stated in the order-sheet, taken cognizance of the case on the 14th August, 1942, that is to say, before Ordinance II was brought into force in the province.

The petitioner in Criminal Revision no. 640 is Lachmi Narain Tamoli who has been convicted by a Special Magistrate of an offence under section (41) of the Indian Penal Code and sentenced to rigorous imprisonment for twelve months. It appears that this man was arrested on the 15th August, 1942, on the charge that he had committed theft in respect of a cap belonging to a soldier attached to a British Regiment stationed at Patna. Five days later, that is to say, on the 20th August, 1942, the police submitted a charge-sheet against him and the Subdivisional Officer of Patna City sent the case to Mr. T. Hossain for disposal. On the 21st August the Subdivisional Officer finding that “Mr. Hossain's file, was congested” transferred the case to another Magistrate named Mr. Ghosal for disposal and on that very day Mr. Ghosal summoned certain witnesses for the 26th August, 1942. On the latter date one of the two prosecution witnesses was examined by Mr. Ghosal and the other being absent the case was adjourned to the 28th August, 1942. On that very date the Subdivisional Officer withdrew the case to his own file on the ground that the case was triable by a Special Magistrate and after proceeding with the trial as a Special Magistrate convicted and sentenced the petitioner as already stated on the 8th September, 1942. The petitioner thereupon preferred an appeal to the Special Judge, but his appeal was summarily dismissed on the ground that no appeal lay under the Ordinance as the sentence passed by the Special Magistrate did not exceed two years. Thereafter he preferred this criminal revision.

At this stage it seems necessary to refer to section 26 of the Ordinance which reads as follows:—

“Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.”

Upon this provision there can be no doubt that if the Ordinance is found to be applicable to these two cases so that the petitioners could have been properly tried under it, this Court can have no jurisdiction to revise the order of conviction and sentence against which these applications are directed. The point, however, which is raised in both the cases is that the Ordinance was not applicable to these two cases and the Special Magistrates by whom the petitioners have been tried had no jurisdiction to try them. The main ground which is urged in support of this contention is that the Ordinance cannot be given retrospective operation and is not applicable to these cases in which the criminal proceedings had started before it came into force.

The question as to how far a statute which repeals or alters the old law can be given retrospective operation has been discussed in numerous cases and I will state here very briefly some of the principles which may be taken to have been well settled in those cases. These are (1) upon the presumption that the legislature does not intend to enact what is unjust, every statute which takes away or impairs a vested right acquired under the existing law or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations already passed must be presumed to be intended not to have retrospective operation; (2) if there are words in the enactment which either expressly state or necessarily imply that the statute is to be given retrospective operation, then the Act should have retrospective operation even though the consequences may appear unjust and hard; (3) a statute is not to be construed to have a greater retrospective operation than its language renders necessary and (4) as no person has a vested right in any course of procedure, alterations in procedure are to be retrospective unless there is some good reason against it.

The principal question which we have to decide is whether the changes made by Ordinance II are merely procedural or they affect any vested right. The case which in my opinion has a direct bearing on this question and which is undoubtedly one of very great importance is Colonial Sugar Refining Company Limited v. Irving. In that case it was held by the Privy Council that although the right of appeal from the Supreme Court of Queensland to His Majesty in Council given by the Order in Council of June 30, 1860, had been taken away by the Australian Commonwealth Judiciary Act, 1903, and the only appeal therefrom lay to the High Court of Australia, yet the right of appeal to the King-in-Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards could not be taken away by that Act. Lord Macnaghten who delivered the judgment of the Privy Council dealt with the point raised in that case in the following manner:—

“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 mere 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.”

What this case has laid down is firstly, that a right of appeal is not a mere matter of procedure and secondly, that this right vests in the suitor when the action is brought and any statute which is passed after the action is brought cannot take it away unless a clear intention to that effect is manifested.

Another important case to which reference must be made is Sadar Ali v. Dalimuddin in which a Full Bench of the Calcutta High Court had to consider the question whether leave to appeal under the Letters Patent was necessary in a suit which was instituted before a new clause was inserted in the Letters Patent of the High Court providing that no appeal could be preferred, unless leave was granted by the Judge against whose decision the appeal was to be preferred. In that case the suit had been instituted on the 7th October, 1920, and the trial court having dismissed it on the 17th July, 1924, the plaintiffs preferred an appeal in the Court of the District Judge which was heard and dismissed on the 17th July, 1926. The plaintiffs then filed a second appeal in the High Court on the 4th October, 1926, which was dismissed by a single Judge on the 4th April, 1928. The learned Judge refused to grant leave to appeal under the Letters Patent, but notwithstanding his order an appeal was preferred by the plaintiffs alleging that they were entitled to appeal under section 15 of the Letters Patent as it originally stood. That section had been amended on the 14th January, 1928, so as to make it necessary to ask for the leave of the Judge against whose decision the appeal is preferred as a condition precedent to the appeal. It was contended upon the facts stated above that as the Letters Patent was amended before the Letters Patent Appeal was filed in the High Court, the new procedure must govern the presentation of the appeal under the Letters Patent. It was, however, held that the legal pursuit of a remedy—suit, appeal and second appeal—are really but steps in a series of proceedings connected by intrinsic unity and as there was nothing in the Letters Patent to show that it was to be given retrospective effect it could not take away such right as the litigant possessed at the date of the institution of the suit. Rankin, C.J who delivered the judgment in that case conceded in his judgment that there was “a certain paradox in regarding the right to appeal within the High Court from the decision of a single Judge as a right “vested” in the litigant at the date of the suit, since it is in no way certain that the case will ever be decided by a single judge,” but he felt that he was compelled to hold upon the authority of Colonial Sugar Refining Company, Limited v. Irving that the right to appeal under the Letters Patent arose at the date of the suit even though the filing of the appeal might on that date have been in the nature of a mere remote contingency.

Now, there can be no doubt that if a party to a civil action is deemed to have a right of appeal vested in him at the date of the institution of the suit, a similar right must be conceded to an accused person at the date when the criminal proceedings are instituted against him. There was some discussion before us as to what was, for the purpose of a criminal prosecution, the stage corresponding to the institution of a civil suit, but in my opinion upon the authorities as well as upon general principles there can be no doubt that so far as criminal prosecutions are concerned, the corresponding date must be the date when a Magistrate takes cognizance of the offence alleged to have been committed by an accused person, signifying thereby that the accused must be proceeded against for the offence in question. It was suggested on behalf of the Crown that the critical date in a criminal case is the date on which the charge is framed against the accused person and he is called upon to answer the charge. It is said that is the point of time at which the trial begins and before that, the proceedings are in the nature of an inquiry and not in the nature of a trial. It seems to me, however, to be academic to discuss here what properly speaking is ‘inquiry’ and what is ‘trial’ because all that we have to find in view of the authorities on the subject is when the criminal case was registered or started against the accused person. In my opinion as soon as the Magistrate takes cognizance of an offence there is a criminal case against the accused person and at that point of time he acquires such right of appeal or revision, as the case may be, as the law confers upon him. This is the view which seems to have been indicated by Rowland, J. in King-Emperor v. Sajiwan Mahto and it is also supported by the language used in the Code of Criminal Procedure to describe the contents of the various chapters.

Part I of the Code of Criminal Procedure deals only with certain preliminary matters and Part II deals with the constitution and powers of criminal courts and offices. Part III contains some general provisions relating to “aid and information to the Magistrates”, “arrests and escape of offenders”, “process to compel appearance of witnesses and the production of documents”, etc. Part IV deals with “prevention of offences” and Part V deals with “information to the police and their powers to investigate”. The sections which deal with the “proceedings in prosecution” are to be found in Part VI which is divided under two heads—

A. Place of inquiry or trial.

B. Conditions requisite for initiation of proceedings.

The first section which comes under B is section 190 which deals with “cognizance of offences by Magistrates”. Then comes Chapter XVI which deals with complaints to Magistrates and Chapter XVII expressly deals with the commencement of proceedings before Magistrates. There can be no doubt that where a Magistrate takes cognizance of an offence upon complaint the proceeding before him is commenced as soon as the process is issued. Similarly, when the cognizance is taken upon a charge-sheet, the proceeding must be deemed, to commence as soon as the Magistrate makes up his mind to act upon the charge-sheet. In such cases if the accused person has appeared before the police, he is sent up for trial and if he has not appeared before the police, a prayer is usually made by the police for warrant or some other process. In the former case the Magistrate has to pass some order as to bail or otherwise and in the latter case he generally issues a warrant and sometime has to issue process under sections 87 and 88 of the Criminal Procedure Code. These steps in my opinion definitely mark the beginning of the criminal proceeding against the accused.

The view which I have expressed as to the commencement of the criminal proceeding finds some support from certain observations made in Subhag Chamar v. Nand Lal Sahu. In that case it was held that a suit for damages for malicious prosecution cannot proceed when the proceedings alleged to give rise to the cause of action have ended in the dismissal of the complaint under section 203 of the Code of Criminal Procedure, 1898, and no process was issued against the plaintiff. Wort, J. who delivered the judgment in that case supported his view by referring to the following observations made by Cotton, L.J in Yates v. The Queen:

“How can it be said that the prosecution commenced before a person is summoned to answer the complaint.”

There can be no doubt therefore that either the summoning of the accused person jor any other step which is equivalent to it must be held to mark the initiation of the criminal proceedings against him and as these steps follow automatically after a Magistrate has taken cognizance of a particular offence, it may be safely laid down that there is a criminal case against the accused person as soon as a Magistrate has taken cognizance.

To sum up then the short point which arises in the cases before us is this: If there had been any provision in the Ordinance to make it retrospective, no further question would have arisen, but as it has not been made retrospective, either expressly or by necessary intendment, it cannot take away such rights as the petitioners had acquired before it was brought into force. As the criminal proceedings against the petitioners had been initiated before the Ordinance came into force, it must follow that the procedure which should have been adopted in their trial was the procedure which was in force at the date of the institution of the proceedings against them, because under that procedure they had a right of appeal as well as the right of applying to the High Court for the revision of their conviction and sentence. No doubt section 26 of the Ordinance provides that there will be no right of appeal or revision in cases tried by Special Magistrates. But that section applies to those cases only which come within the Ordinance. Upon the rule of interpretation to which I have already referred the Ordinance must be held not to apply to the cases of these petitioners and as their cases fall outside the Ordinance, section 26 also does not apply to them.

It may be recalled that the hearing of the case against the petitioner in Criminal Revision no. 640 had begun and one prosecution witness had been examined before the Ordinance came into operation. It is contended before us that this case is directly covered by the decision of the Bombay High Court in Mukund Ramchandra Karkun v. Ladu Govind Pednekar and I think that there is some force in that contention. In that case a municipality had instituted criminal proceedings against a certain person under the Municipal Act, but during the pendency of the proceeding the Act was repealed and thereupon the Magistrate acquitted the accused on the ground that under the new Act he had no jurisdiction to deal with the case. The order of the Magistrate, however, was reversed and it was held that the Magistrate was bound to conclude the proceedings which had already been instituted before him under the old Act and that he could not disclaim jurisdiction, because the procedure laid down for proceedings instituted under the new Act was entirely different.

The next point to be decided is what power can be exercised by the High Court in these cases. It seems to me to be plain that the High Court cannot revise the order of conviction or sentence passed by the Special Magistrates concerned under sections 435 and 439 of the Criminal Procedure Code because this power of revision can be exercised only as against orders passed by Magistrates exercising jurisdiction under the Code of Criminal Procedure. As the Special Magistrates derived their jurisdiction from the Ordinance, they cannot be properly described as “inferior criminal Courts” and the High Court cannot revise their order.

It does not, however, necessarily follow from this that the High Court is entirely powerless in the matter. Under section 491 of the Code of Criminal Procedure the High Court may direct that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction be set at liberty. It seems obvious to me that if the Ordinance under which the petitioners were tried was not applicable to their cases, then the trial was no trial at all in the eye of law and they cannot be detained in a prison, because they should be deemed to have been committed to prison without a trial and because the Magistrates who have sentenced them to imprisonment had no power to send them to prison.

These facts in my opinion are sufficient to attract the jurisdiction which this Court undoubtedly possesses under section 491 of the Code of Criminal Procedure and this Court is accordingly competent to order the petitioners to be set at liberty in exercise of such jurisdiction. It is true that section 26 provides among other things that no Court shall make any order under section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any Special Magistrates or Special Courts constituted under this Ordinance, but this prohibition applies only to those cases to which the Ordinance is applicable and which can be tried under the Ordinance. As the cases before us could not be tried under the Ordinance, they stand outside the Ordinance and section 26 or anything contained in the section does not apply to them.

I would, therefore, direct that the petitioners in both the cases be set at liberty at once.

It is hardly necessary to add that it will be open to the authorities concerned, if they are so advised, to take such action against the petitioners as the law permits.

Harries, C.J:— I agree and have nothing to add.

Varma, J.:— I agree.

Applications allowed.

H.R.K