STATE Vs. KANHIYALAL

JUDGEMENT

(1.) THIS case has been referred to this Bench for decision under Section 29 (a) of the Madhya Bharat High Court Act of Samvat 2005. The facts are that a challan in respect of an offence under Section 388, I. P. C. was presented against the non-applicants before the Additional District Magistrate of Gwalior. During the pendency of the committal proceedings the Magistrate was invested with Section 30 powers by a notification dated 17th May 1950 which did not contain any provision to make it retrospective and which on the other hand expressly made it effective from 1st June 1950. Thereupon the learned Magistrate instead of continuing the committal proceedings, proceeded to try the accused persons in exercise of his powers under Section 30 of the Criminal Procedure Code. An objection was then taken by the prosecution that as the notification investing the Magistrate with Section 30 powers was not retrospective the Magistrate had jurisdiction either to commit the accused to the Court of sessions or to discharge them and that he had no authority to try the case as Section 30 Magistrate. The objection was overruled by the Magistrate. A revision petition was then filed by the State before the Sessions Judge of Gwalior. The learned Sessions Judge now relying on a decision of Shinde J. , (as he then was) in - 'cri. Reference No. 27 of 1950 (Madh. B.) made a reference to this Court recommending that the decision of the Magistrate to try the accused persons in the exercise of Section 30 powers is illegal and that he be directed to continue with the committal proceedings. When this case first came up for hearing before my learned brother Chaturvedi, J. , he felt some doubt as to the correctness of the view taken by Shinde J. , in - 'cri. Reference No. 27 of 1950', that the notification dated 17th May 1950' investing certain Magistrates with Section 30 powers was not retrospective. He, therefore, directed that the case be placed before. the Chief Justice for the constitution of a Division Bench for the hearing of the reference made by the Sessions Judge. Accordingly this Bench has been constituted for the disposal of the reference made by the learned Sessions Judge of Gwalior.

(2.) THE sole point for determination in this case is whether if during the pendency of committal proceedings, the Magistrate holding the proceedings is invested with Section 30 powers by a notification, which does not contain any provision to make it retrospective, can the Magistrate instead of continuing with the committal proceedings try the accused in the exercise of Section 30 powers? The question is fairly simple. The answer to it depends on the interpretation of the notification in question by an application of the well-established principles as regards the retrospective operation of statutes. These principles have been indicated in two Full Bench decisions of this Court, namely, - Daulat Singh v. The State AIR 1950 Madh. B. 112 (FB) and - Gulabchand v. Kudilal ILR (1952) Madh. B. 15 (FB ). In these two cases it has been laid down after a review of all the well-known authorities that (1) 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 considered to have greater retrospective operation than its language renders necessary; (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; (5) and the right of appeal is not, n mere matter of procedure but is a vested right which inheres in a party from the commencement of the action in the Court of first instance.

(3.) THE principal question which we have to decide is whether the difference between the procedure of the trial of a case by a Section 30 Magistrate and the procedure in a case triable by a Sessions Court is merely procedural or whether it is one of substance and of such a character that a change from one procedure to the other affects any vested or statutory right. For this purpose it is pertinent to note the difference in the two procedures. A Magistrate exercising Section 30 powers has to follow the procedure laid down in Chapter XXI of the Code for the trial of warrant cases. An appeal from conviction and sentence by a Section 30 Magistrate lies to the Sessions Judge; if the Magistrate passes any sentence of imprisonment for a term exceeding four years, or any sentence of transportation then the appeal of all or any of the accused persons convicted at the trial lies to the High Court. The provisions of the Criminal Procedure Coda with regard to cases exclusively triable by a Court of Session are that during the pendency of the magisterial enquiry the accused may be discharged under Section 209 and oven if a charge is framed against him under Section 210, the Magistrate may, under Section 212 examine the defence witnesses whose names might have been given by the accused in the list under Section 211, and after such examination the Magistrate may under Section 213 (2) cancel the charge and discharge the accused if he is satisfied that there are not sufficient grounds for committing him. If the accused is not discharged either under Section 209 or under Section 213 (2) an order of commitment to the Sessions Court is made, and thereafter the trial takes place either by a jury or with the aid of assessors. An appeal of a person convicted on a trial held by a Sessions Judge lies to the High Court. It would be seen from these provisions that the difference in the two procedures is not merely in the mode of conducting proceedings in Court. It lies also in the substantive rights of appeal and of being tried by a jury or with the aid of assessors. That a right of appeal is a substantive right is well settled. That the accused person's right of trial by a jury is a substantive right, is also well established. See.-Dalsingh v. King Emperor AIR 1917 P. C. 25 - Emperor v. Fitzmaurice 6 Lah 262. It is true that in this State there is no trial by jury and all trials before a Court of Sessions are with the aid of assessors. But it is clear to me that the right of a trial with the aid of assessors is as much a substantive right of an accused person as his right of trial by a jury. In principle there is no difference between a trial by a jury and one, with the aid of assessors. A trial without the aid of assessors is altogether void in this State, where no notification under Section 269 has been issued by the Government. There is also no distinction in the procedure at the trial by a jury and one with the aid of assessors except as to the summing up in the case of the former, and the manner in which the verdict of the jury and the opinion of the assessors are taken. In a trial with the aid of assessors the Judge is no doubt the sole Judge of law and fact and the responsibility of the decision rests solely with him. But in reaching the decision the Judge is expected to take into consideration the opinion of each assessor. It is true that in actual experience, as observed by this Court in - Manjur v. State AIR 1950 Madh B 37 (F. B. ). it is usual to find the assessors no wiser at the end of the trial than at the commencement and they rarely serve any useful purpose save the satisfaction of the judicial conscience in following the provisions of law. But nonetheless the right of a trial with the aid of assessors is a substantive and statutory right of an accused person, whatever may be its practical utility. It must be further remembered that in a case triable by a Court of Sessions the accused is entitled to substantive rights such as the right of appeal and the right of trial with the aid of assessors or by a jury, as existed at the time when the criminal proceedings are instituted against him before the committing Magistrate. He cannot be deprived of these rights by giving retrospective effect to the notification under consideration. The view that such substantive rights vest in an accused person at the date when the criminal proceedings are instituted against him is supported by the observations of Fazl Ali J. , in - Banwari Gope v. Emperor AIR 1943 Pat 18 (F. B. ). In that case the learned Judge while considering the question whether the Special Criminal Courts Ordinance (2 of 1952) was applicable to those cases in which the criminal proceedings had started before the Ordinance came into force, said 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 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. In Emperor v. Fitzmaurice 6 Lah 262 also it was held that the right of being tried by a jury vested in the accused person at the time of the opening of the proceedings before the Committing Magistrate.