CHELLAPPAN Vs. STATE

JUDGEMENT

(1.) This appeal was posted before me, sitting as a single judge, pursuant to the provisions of the Kerala High Court Act, 1958, Act V of 1959. A preliminary objection to the competency of a single Judge to hear the appeal, was raised on behalf of the appellant, who is the accused in the case, on the ground, that he has a vested right to have the appeal heard, by a bench of two Judges, under the earlier High Court Act of 1125. Reliance was placed by his learned counsel on the decision of the Supreme Court in Garikapati Veeraya v. N. Subbiah Chowdhry, AIR 1957 S. C. 540, particularly, the observations of the learned Chief Justice in Para.48 of his judgment, and also, on the decision of the Punjab High Court in Gordhan Das Baldev v. Governor General in Council, AIR 1952 Punjab 103. The question for decision in the case before the Supreme Court was, whether by reason of a subsequent change in the law, a right of appeal to the Federal Court which was previously in existence, was extinguished; this was answered in the negative. The dictum of the Supreme Court is of little relevance in the present case, for the right of the appellant to appeal to the High Court, conferred by S.410, Criminal Procedure Code, has not been taken away by the High Court Act of 1959, which has been enacted, as the preamble says, only to make provisions regulating the business and the exercise of the powers of the High Court. The view taken by the Travancore - Cochin High Court in Narayana Panicker Sankaranarayana Panicker v. Sankaranarayana Panicker Narayana Panicker, 1952 KLT 339 , with respect to the earlier High Court Act, that no litigant has a vested right that his appeal should be heard by a particular number of Judges and that the provisions of the Act prescribing the powers of Single Judges and Division Courts are only matters affecting procedure, must hold even under the High Court Act of 1959.

(2.) As noticed in Fateh Chand v. Muhammad Bakush, I.L R. XVI All. 259, there is a distinction between a right of action and a right of action to be conducted in a particular way. The former is a vested right, while the latter is merely a matter of procedure. It is unnecessary to discuss the cases bearing on this point, many of which, have been considered by Koshi, C.J. in the Travancore - Cochin case cited earlier. If, as I think, the view held in that case is sound, it must follow, that the provision in the High Court Act of 1959, empowering a Single Judge to hear an appeal of this category, must have retrospective operation so as to apply to pending appeals.

(3.) Some reliance was placed on the following observations of the Supreme Court in Garikapatis case, we think, that the suit, out of which this application arises, having been instituted before the date of the Constitution, the parties thereto had, from the date of the institution of the suit, a vested right of appeal upon the terms and conditions then in force, and it was urged, that the right of hearing before a bench of Judges, was a term or condition within the meaning of the above observations, and cannot now be denied to the appellant. It is clear to my mind, that the term or condition referred to, must at least qualify the right of appeal, if it is not so intimately connected with it as to form part of that right. The judgment of the court, in which these observations are found, itself furnishes instances of such terms or conditions, which amply illustrate the meaning of these words, in the context in which they were employed.