ZEBA Vs. STATE

JUDGEMENT

(1.) A question of law has been referred to us in this revision petition which has been formulated as under:

(2.) A Challan under Section 302/447/147 R. P. C. was put up against the accused respondents Noâ„¢s 2 to 6, herein, in the court of Judl. Magistrate, Pulwama, on 6 -12 -1977. He charge sheeted the accused persons and committed them to stand their trial before Sessions Judge, Pulwamma, for offences under Sections 304(1) 447 -147 R. P. C. Mst Zeeba, the petitioner, who is the widow of the deceased, alleged to be the victim of the crime, has assailed this order on the ground that the discharge of the accused persons under Section 302 R. P. C. is unwarranted which resulted in miscarriage of justice. When this revision petition came up for hearing before one of us, a contention was raised on behalf of the Petitioner that the Code of Criminal Procedure having been amended in the meantime and procedural law being retroactive in operation the charges framed by the Committing Magistrate could not be sustained when the power to frame charge under the amended Code vested in the Sessions Judge alone, more so, when there was no clause in the Amending Act saving the orders passed by the Committing Magistrate under the old procedure. It was in these circumstances that the aforesaid question was referred to a larger bench for an authoritative Pronouncement.

(3.) IT is well settled that a law which is procedural in character is retrospective in operation. That, however, does not mean that whatever has been done under the old law, is undone by any subsequent amendment in the procedure. Section 6 of the General Clauses Act provides that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect or effect the previous operation of any enactment so repealed or anything duly done or suffered there under. The Committing Magistrate, when he framed the charges had undoubtedly jurisdiction to do so, as the Amending Act had not by then come into force. It came into force only thereafter i.e. 1 -4 -1979. It is, therefore, obvious that the charges framed by him cannot be questioned on the ground that the procedure having been subsequently changed, the charges framed by him ceased to survive. In saying so we are supported by a Supreme court decision, viz Nani Gopal Mitra Versus State of Bihar (A. I. R. 1970 Supreme Court, 1636) where it was held: