HIRALAL NANSA BHAVSAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This case is referred to this Full Bench for deciding the question as to whether the appeal filed by the accused against their order of conviction in Summary Case No. 1528 of 1973 by the Metropolitan Magistrate 10 Court Ahmedabad under sec. 66 of the Bombay Prohibition Act can lie in this Court in view of repealing and saving provisions of sec. 484 of the Code of Criminal Procedure 1973 (hereinafter referred to as the New Code). The question arises in this manner. The two accusedappellants were chargesheeted before the City Magistrate 10 Court Ahmedabad on August 25 1973 for having committed offence under sec. 66(b) of the Bombay Prohibition Act. It was alleged that the accused had committed the said offence on August 25 1973 The learned City Magistrate 10 Court recorded the plea of the accused on December 10 1973 The evidence was recorded by the Metropolitan Magistrate 10 Court on April 8 1974 and the said Magistrate found both the accused guilty of the offence with which they were charged and convicted each of the accused on April 8 1974 to suffer rigorous imprisonment for 3 months and pay a fine of Rs. 500/(in default of payment of fine to suffer further rigorous imprisonment for one month). Both the accused filed Appeal No. 279 of 1974 in this Court which came up for admission before Mr. Justice Surti who took the view that as the accused were convicted after coming into force of the New Code the appeal ought to have been filed in the Court of Sessions at Ahmedabad in view of the provisions of subsec. (3) of sec. 374 of the New Code. No reasoning are given by the learned Judge for coming to this conclusion. The learned Judge realising the importance of the question after expressing his opinion on the point referred the matter to a Division Bench. The appeal was then placed before Division Bench consisting of J. B. Mehta and B. K. Mehta JJ. who in view of the wide public importance of the question involved in the case thought it better that the point be decided by a larger Bench and hence this Full Bench is constituted.

(2.) The new Code came into force from April 1 1974 It must be noticed that even though the prosecution was instituted in the Court of the City Magistrate against the accused prior to April 1 1974 i. e. before coming into force of the New Code the order of conviction was passed on April 8 1974 against both the accused. The appeal against the said order of conviction was filed in this Court by both the accused on April 9 1974 The question is whether the said appeal is maintainable in this Court in view of sec. 484 of the New Code. Sec. 484 of the New Code is as follows:

(3.) In order to construe sec. 484 all the provisions thereof have to be taken into account and given effect to. By sub-sec. (1) of sec. 484 the Code of Criminal Procedure of 1898 is repealed. Sub-sec. (2) of sec. 484 contains saving provisions and sub-sec. (2)(a) thereof provides that if immediately before the date on which this Code comes into force there is any appeal application trial or inquiry or investigation pending then such appeal application trial inquiry or investigation shall be disposed of continued held or made as the case may be in accordance with the provisions of the Code of Criminal Procedure 1898 as in force immediately before the commencement (herein after referred to as the Old Code) as if the New Code has not come into force. There is an important proviso to this section and it provides that every inquiry under Chapter XVIII of the Old Code which is pending at the commencement of this Code shall be dealt with and disposed of in accordance with the provisions of the New Code. Sub-sec. 2(c) provides that any sanction accorded or consent given under the Old Code in pursuance of which no proceedings were commenced under that Code shall be deemed to have been accorded or given under the corresponding provisions of the New Code and proceedings may be commenced under the New Code in pursuance of such sanction or consent. Sub-sec. (2)(d) provides that the provisions of the Old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution. Sub-sec. (3) provides that when the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of the New Code nothing in the said Code shall be construed as enabling any such application to be under or proceeding to be commenced under the New Code by reason of only of the fact that a larger period thereof is prescribed by the New Code or previsions are made thereunder for the extension of time. The effect of this provision is not too revive a barred remedy or to put in other words to prevent a procedural law from taking effect retrospectively. It is clear from the aforesaid provisions that when. ever the parliament wanted to apply the provisions of the New code or that the provisions of the Old Code are to be continued (inspite of the enactment of the New Code) it has specifically so stated. The intention of the parliament as evident from the provisions of sub-sec. (2)(a) is to continue the old provisions in respect of pending appeal application trial inquiry and investigation. The parliament has clearly given the direction that such proceedings should be disposed of or continued or held or made as the case may be in accordance with the provisions of the Old Code as if the New Code has not come into force. It is clear that the parliament did not want to give retrospective effect to the provisions of the New Code so far pending proceedings mentioned therein are concerned. The proviso to the said sub-section makes the intention of the parliament clearer. A bare reading of the said proviso indicates that the committal proceedings which are contained in Chapter XVIII of the Old Code and which are pending on the date of the commencement of the New Code are to be continued under the New Code. This clearly means that retrospective effect has to be given to the provisions of the New Code so far as pending committal proceedings are concerned. Sub-sec. (2)(c) provides that the sanction accorded or consent given under the Old Code in pursuance of which no proceedings were commenced under that Code shall be deemed to have been accorded or given under the corresponding provisions of the New Code and the proceedings may be commenced under the said Code in pursuance of such sanction or consent. The negative effect of this provisions is that when the sanction has been accorded or consent given under the Old Code and in pursuance of such sanction or consent the proceedings after taking cognisance thereof have been commenced under that Code such proceedings shall not be governed by the correrpending provisions of the New Code. Such proceedings are required to be disposed of according to the provisions of the Old Code. This is so because naturally such proceedings would be governed by sub-sec. 2(a). It was argued by the learned Government Pleader that sec. 484 is a self-contained Code in respect of repealing and saving provisions. The said provisions do not save any right obligation or liability acquired or accrued or incurred under Old Act and that being so it is too much to say that the parliament intended to continue the proceeding of which cognizance was taken under the Old Code to its final determination. To support this argument much reliance was placed on subsec. (2) (d) and it was argued that the word orders used therein includes an order of conviction and as the sub-section provides that such order shall be deemed to be order under corresponding provisions of the New Code any further proceedings against such orders should be governed by the provisions of the New Code. The argument further proceeded that for the purpose of determining whether an order of conviction is appealable and the Court to which an appeal can lie against such order the provisions of the New Code alone should be looked at and it is the new provisions which alone should govern such an order for such purposes. Now it is well established principle that the language of every statute must be construed as far as possible in accordance with the terms of every other law which it does not in express terms modify vary or repeal. When the parliament enacted sec. 484 of the Code providing repealing and saving provisions it was aware of sec. 6 of the General Clauses Act 1897 which provides effect of repeal of a statute. It appears that sec. 484 only varies or modifies a part sec. 6 of the General Clauses Act 1897 keeping the other provisions thereof alive. There is nothing in sec. 484 which indicates that it was enacted to substitute all the provisions of sec. 6 of the General Clauses Act. The provisions of sec. 6 of the General Clauses Act are mainly modified in two respects: (1) pending committal proceedings under Chapter XVIII are directed by the New Code to be dealt with and disposed of in accordance with the provisions of the New Code; (2) fresh institution in respect of an act or omission committed prior to the coming into force of the New Code is to be governed by the New Code. The provisions of sub-sec. (2) (b) are transitory provisions enacted to continue certain notifications sentences passed rules orders or appointments issued or made under the Old Code. The continuance of these matters is necessary to avoid fresh immediate issuance thereof and in case of sentences passed to see that they do not cease to have effect. The provisions of sub-sec. 2(b) are similar to sec 24 of the General Clauses Act and merely provide for continuance of the notifications sentences passed orders etc. issued under the enactment repealed. The provisions of sub-sec. (2) (b) do not deal with confirmation of right of appeal or any other right. Assuming that the word orders include orders of conviction it cannot be said that appeal against such orders must lie under the New Code. To read the provisions in that manner would make the provisions of sub-sec. (2) (a) nugatory ineffective and meaningless. To illustrate take a case in which 4 accused are charge-sheeted in one case for being in possession of liquor without necessary permit i. e. an offence punishable under sec. 66 (b) of the Bombay Prohibition Act. The Presidency Magistrate who took congnizance of the offence passed the order of conviction on March 22 1974 Three of the accused filed separate appeals in the High Court on March 24 1974 and the High Court admitted the same on March 25 1974 The remaining accused filed an appeal in the High Court on April 7 1974 Inconsistent situations will then arise. The appeals of the three accused shall have to be disdosed of by the High Court. The appeal of the fourth accused according to the interpretation sought to be given to sub-sec. (2) (b) could only lie in the Sessions Court and not to the High Court and has to be disposed by the Sessions Court. Such cannot be the intention of the Parliament. The Court cannot construe a provision in a manner which gives rise to inconsistencies. It is therefore obvious that in enacting sub-sec. (2) (a) the Parliament intended that the pending proceedings be disposed of or continued or held or made according to the procedure under the Old Code. Sub-sec. (2) (b) is merely a transitory provision which does not confer any right but provides for continuance of notification order rules appointment sentences passed etc. It must be noticed that what are saved under subsec. (2) (a) are only the pending proceedings. If a proceeding is instituted subsequent to the commencement of the Code in respect of the act or omission committed prior to the coming into force of the New Code it would only be governed by the provision of the New Code. In the four categories of mentioned hereinbefore the first two categories of cases would be governed by sub-sec. (2)(a) of the New Code and have to be disposed of finally in accordance with the provisions of the Old Code as if the New Code has not come into force. The other two categories of the cases would not be governed by the provisions of sub-sec. (2)(a) and shall have to be dealt with and disposed of in accordance with the provisions of the New Code.