GOPI PILLAI Vs. STATE

JUDGEMENT

(1.) The petitioner herein was convicted by the learned Stationary First Class Magistrate of Karunagapally of an offence punishable under S.324 of the Travancore Penal Code (same offence as that under S.324 IPC) and sentenced to pay a fine of Rs. 50/-. The judgment directed that in default to pay the fine the petitioner should undergo simple imprisonment for a period of fifteen days. The occurrence complained of took place on 9.2.1950 and the complaint was filed immediately thereafter. The case, however, was disposed of only in March 1953. Meanwhile by Act I of 1951 passed by the Indian Parliament on 17.2.1951 and a Notification issued thereunder by the Central Government the Code of Criminal Procedure, became law in this State with effect from 1.4.1951. The petitioner's appeal before the Quilon Sessions Court against his conviction and sentence was dismissed by the learned Sessions Judge on the ground that under S.413 of the Code of 1898 the appeal was incompetent. Under the said section a sentence of fine not exceeding fifty rupees only passed by a Sessions Judge or District Magistrate or other Magistrate of the First Class was not open to appeal. Under S.343 of the Travancore Criminal Procedure Code Act VIII of 1117, it was only a sentence of fine not exceeding Rs. 50/- imposed by a court of session or District Magistrate that was non appealable. It was, therefore, contended before the learned Sessions Judge as also before me that as the case was initiated while that Act was in force the petitioner's right of appeal must be governed by the provisions of that Act and not by the Code of 1898 which became law in the State only on 1.4.1951. The learned Judge repelled the argument by pointing out that the 25th Section of Act I of 1951 gave retrospective operation to the Code of 1898 so as to make its provisions applicable to all cases pending in any criminal court in any Part B State when that Code came into force therein. In my opinion the learned Judge's view is right and it has to be upheld.

(2.) S.25(1) of Act I of 1951 provides inter alia that "if immediately before the day on which this Act comes into force in a Part B State there is in force in that State any law which corresponds to the said Code, such corresponding law shall on that day stand repealed. Sub-s.(1) in its remaining part and sub-s. 2, deal with certain "savings" and sub-s. 3 enacts that "the provisions of the said Code shall be apply to all proceedings instituted after the coming into force of the said Code in any Part B State and so far as may be, to all cases pending in any criminal court in that State when the said Code comes into force therein". In view of these express provisions we cannot accede to the argument that the competency of the appeal before the Sessions Court in the instant case should be governed by S.343 of the repealed Act VIII of 1117 (Travancore).

(3.) It is settled law that the right of appeal is a matter of substantive right and that that right becomes vested in a party when the proceedings are first initiated in the inferior court and that such right cannot be taken away except by express enactment or necessary intendment. Hoosein Kassam Dada (India) Ltd. v. The State of Madhya Pradesh and Others (1953) SCR 987. Here we have the express provision in sub-s. 3 of the 25th Section of Act I of 1951 that the Code of 1898 shall apply as far as may be, to cases pending when the said Code came into force. Mr. K. S. Sebastian, the petitioner's learned counsel appeared to me to be contending that the right of appeal being a vested right cannot be taken away by a subsequent statute passed after the right accrual. He invited my attention to the decision of this court in Narayana v. Sankara Narayana AIR 1953 Travancore Cochin 53. The case not only does not support the position urged by the learned Counsel but also points out that it is competent to the Legislative by enactment to deprive a citizen of a vested right of action and that the limitation is only that the intention to do so should be made clear by express enactment or necessary intendment. The Supreme Court decision in Hoosein Kassam Dada (India) Ltd. v. The State of Madhya Pradesh and Others has enunciated this rule in categorical language.