SARKAR Vs. NARAINSINGH

JUDGEMENT

(1.) THIS is a reference made by the Sub Divisional Magistrate, Parbatsar, under S. 450 (2) of the Marwar Code of Criminal Procedure in a case in which Bal Singh, Ghisia, Chatu Singh and one Narain Singh said to be a Tazimi Sardar were put up before him for an enquiry prior to commitment to the Sessions for trial for the offences of rioting and committing murder of one Surajmal Singh of the village Khokaria under Ss. 302, 148 and 149 of the Penal Code committed on the 15th of October, 1947. It would be well worth here to set down the special provisions of the Marwar Criminal Procedure Code under which the case was enquired into and the reference was made. "section 449. A Magistrate or Court taking cognizance of an offence under S. 190 shall examine the complainant, if any, and record the evidence produced in support of the charge, and may make further enquiry himself or direct further inquiries to be made, by a Police officer or another Magistrate as laid down in Section 202. " "section 450 (1 ).- If after examining the complainant and considering the results of the evidence produced and of such further inquiry or investigation, if any, ordered under the last preceding section, the Magistrate or Court is of opinion that there is no sufficient ground for proceeding he may, (a) if cognizance has been taken under section 190 (a) dismiss the complaint; (b) if cognizance has been taken, under section 190 (c) cancel further proceedings. Provided that, in each case he shall record briefly the reasons for his action. (2) If cognizance has been taken on a Police report of the facts under section 190 (d) and if in the case of 'offences, cognizance of which has been taken under section 190 (a) and (c) the Magistrate or Court is of opinion that there is sufficient ground for proceeding, he shall submit the record of the case, with a brief review of the facts and his opinion regarding the guilt of the accused, to the Chief Court. "

(2.) AS a result of his inquiries under S. 454 of the M. Cr. P. C. as to whether Narain Singh was a Tazimi Sardar or not the Magistrate First Class, Parbatsar, before whom the challan was first put up, gave a finding on the 2nd of August, 1948, that he was a Tazimi Sardar.

(3.) FURTHER reference may be made to a decision reported in I. L. R. 1943 (1) Gal. 134. Their Lordships Nasim Ali and Blank JJ. relying on the following propositions of law - "it is a general rule that when the Legislation alters the rights of parties by taking away or confer- ring any right of action, its enactments, unless in express terms,they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action. ". . . . . . . . . "for it is perfectly settled that if the Legislature forms a new procedure, so that, instead of proceeding in this form or that, you should proceed in ano her and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. ". . . . . "a statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing. " In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, "it will be held to apply prima facie to all actions, pending as well as future. " (Craies on Statute Law, 4th Ed. p. 337 ). "whether a person has a right to recover property is a question of substantive law. . . . . . . . . But in what Courts. . . . . . . . . I must institute proceedings is a question of procedural law. " (Salmond on Jurisprudence ). have laid down that "the provisions of the amending Act relating to this change of forum are, therefore, simply matters of procedure. . . . . . . . . . . . . " and held that no party has a vested right in trial of his action in any particular court.