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Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007=whether the appellant could be tried by the Judicial Magistrate, First Class, for the offences punishable under Sections 408, 420, 467, 468 and 471 of the IPC notwithstanding the fact that the First Schedule of the Code of Criminal Procedure, 1973 as amended by Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007, made offences punishable under Sections 467, 468 and 471 of the Penal Code triable only by the Court of Sessions. ?- A Full Bench of the High Court of Madhya Pradesh in Re: Amendment of First Schedule of Criminal Procedure Code by Criminal Procedure Code (M. P. Amendment) Act, 2007 2008 (3) MPLJ 311, answered the reference and held that all cases pending before the Court of Judicial Magistrate First Class as on 22nd February, 2008 remained unaffected by the amendment and were triable by the Judicial Magistrate First Class as the Amendment Act did not contain a clear indication that such cases also have to be made over to the Court of Sessions. The Court further held that all such cases as were pending before the Judicial Magistrate First Class and had been committed to the Sessions Court shall be sent back to the Judicial Magistrate First Class in accordance with law. The reference was answered accordingly. = whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225; The Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369, 372). In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.” 19. The upshot of the above discussion is that the view taken by the Full Bench holding the amended provision to be applicable to pending cases is not correct on principle. The decision rendered by the Full Bench would, therefore, stand overruled but only prospectively. – “ Prospective declaration of law is a device innovated by this Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty bound to apply such dictum to cases which would arise in future. Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation.” – Under the doctrine of “prospective overruling” the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of “prospective overruling” is left to the discretion of the court to mould with the justice of the cause or the matter before the court.” – the overruling of the Full Bench decision of the Madhya Pradesh High Court will not affect cases that have already been tried or are at an advanced stage before the Magistrates in terms of the said decision

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English: Chaturbhuj temple, Orchha, Madhya Pra...

English: Chaturbhuj temple, Orchha, Madhya Pradesh, India. Français : Vieux temple Chaturbhuj, Orchha, Madhya Pradesh, Inde. (Photo credit: Wikipedia)

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 353 OF 2013
(Arising out of S.L.P. (Crl.) No.5663 of 2011
Ramesh Kumar Soni …Appellant
Versus
State of Madhya Pradesh …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. The short question that falls for determination in this
appeal is whether the appellant could be tried by the Judicial
Magistrate, First Class, for the offences punishable under
Sections 408, 420, 467, 468 and 471 of the IPC
notwithstanding the fact that the First Schedule of the Code
of Criminal Procedure, 1973 as amended by Code of CriminalPage 2
2
Procedure (Madhya Pradesh Amendment) Act of 2007, made
offences punishable under Sections 467, 468 and 471 of the
Penal Code triable only by the Court of Sessions. The Trial
Court of 9th Additional Sessions Judge, Jabalpur has
answered that question in the negative and held that after
the amendment the appellant could be tried only by the
Court of Sessions. That view has been affirmed by the High
Court of Madhya Pradesh at Jabalpur in a criminal revision
petition filed by the appellant against the order passed by
the Trial Court. The factual matrix in which the controversy
arises may be summarised as under:
3. Crime No.129 of 2007 for commission of offences
punishable under Sections 408, 420, 467, 468 and 471 of
the IPC was registered against the appellant on 18th May,
2007, at Bheraghat Police Station. On the date of the
registration of the case the offences in question were triable
by a Magistrate of First Class in terms of the First Schedule
of Code of Criminal Procedure, 1973. That position
underwent a change on account of the Code of Criminal
Procedure (Madhya Pradesh Amendment) Act of 2007Page 3
3
introduced by Madhya Pradesh Act 2 of 2008 which
amended the First Schedule of the 1973 Code and among
others made offences under Sections 467, 468 and 471 of
the IPC triable by the Court of Sessions instead of a
Magistrate of First Class. The amendment received the
assent of the President on 14th February, 2008 and was
published in Madhya Pradesh Gazette (Extraordinary) on
22nd February, 2008. Consequent upon the amendment
aforementioned, the Judicial Magistrate, First Class appears
to have committed to the Sessions Court all cases involving
commission of offences under the above provisions. In one
such case the Sessions Judge, Jabalpur, made a reference to
the High Court on the following two distinct questions of
law:
1. Whether the recent amendment dated 22nd
February, 2008 in the Schedule-I of the Cr.P.C. is to be
applied retrospectively?
2. Consequently, whether the cases pending before
the Magistrate First Class, in which evidence partly or
wholly has been recorded, and now have beenPage 4
4
committed to this Court are to be tried de novo by the
Court of Sessions or should be remanded back to the
Magistrate First Class for further trial?
4. A Full Bench of the High Court of Madhya Pradesh in
Re: Amendment of First Schedule of Criminal
Procedure Code by Criminal Procedure Code (M. P.
Amendment) Act, 2007 2008 (3) MPLJ 311, answered
the reference and held that all cases pending before the
Court of Judicial Magistrate First Class as on 22nd February,
2008 remained unaffected by the amendment and were
triable by the Judicial Magistrate First Class as the
Amendment Act did not contain a clear indication that such
cases also have to be made over to the Court of Sessions.
The Court further held that all such cases as were pending
before the Judicial Magistrate First Class and had been
committed to the Sessions Court shall be sent back to the
Judicial Magistrate First Class in accordance with law. The
reference was answered accordingly.
5. Relying upon the decision of the Full Bench the
appellant filed an application before the trial Court seeking aPage 5
5
similar direction for remission of the case for trial by a
Judicial Magistrate. The appellant argued on the authority of
the above decision that although the police had not filed a
charge-sheet against the appellant and the investigation in
the case was pending as on the date the amendment came
into force, the appellant had acquired the right of trial by a
forum specified in Schedule I of the 1973 Code. Any
amendment to the said provision shifting the forum of trial
to the Court of Sessions was not attracted to the appellant’s
case thereby rendering the committal of the case to the
Sessions Court and the proposed trial of the appellant before
the Sessions Court illegal. The trial Court, as mentioned
earlier, repelled that contention and held that since no
charge-sheet had been filed before the Magistrate as on the
date the amendment came into force, the case was
exclusively triable by the Sessions Court. The High Court
has affirmed that view and dismissed the revision petition
filed by the appellant, hence the present appeal.
6. The Code of Criminal Procedure (Madhya Pradesh
Amendment) Act, 2007 is in the following words:Page 6
6
“An Act further to amend the Code of Criminal
Procedure, 1973 in its application to the State of
Madhya Pradesh.
Be it enacted by the Madhya Pradesh
Legislature in the Fifty-eighth Year of the Republic of
India as follows:
1. Short title. – (1) This Act may be called the Code
of Criminal Procedure (Madhya Pradesh
Amendment) Act, 2007.
2. Amendment of Central Act No.2 of 1974 in its
application to the State of Madhya Pradesh – The
Code of Criminal Procedure, 1973 (No. 2 of 1974)
(hereinafter referred to as the Principal Act), shall
in its application to the State of Madhya Pradesh,
be amended in the manner hereinafter provided.
3. Amendment of Section 167 – ……
xxxx xxx xxx
4. Amendment of the First Schedule – In the First
Schedule to the Principal Act, under the heading
“I-Offences under the Indian Penal Code” in
column 6 against section 317, 318, 326, 363,
363A, 365, 377, 392, 393, 394, 409, 435, 466,
467, 468, 471, 472, 473, 475, 476, 477 and
477A, for the words “Magistrate of First Class”
wherever they occur, the words “Court of
Sessions” shall be substituted.”
7. The First Schedule to the Criminal Procedure Code
1973 classifies offences under the IPC for purposes of
determining whether or not a particular offence is cognizable
or non-cognizable and bailable or non-bailable. Column 6 of
the First Schedule indicates the Court by which the offence
in question is triable. The Madhya Pradesh AmendmentPage 7
7
extracted above has shifted the forum of trial from the Court
of a Magistrate of First Class to the Court of Sessions. The
question is whether the said amendment is prospective and
will be applicable only to offences committed after the date
the amendment was notified or would govern cases that
were pending on the date of the amendment or may have
been filed after the same had become operative. The Full
Bench has taken the view that since there is no specific
provision contained in the Amendment Act making the
amendment applicable to pending cases, the same would
not apply to cases that were already filed before the
Magistrate. This implies that if a case had not been filed
upto the date the Amendment Act came into force, it would
be governed by the Amended Code and hence be triable
only by the Sessions Court. The Code of Criminal Procedure
does not, however, provide any definition of institution of a
case. It is, however, trite that a case must be deemed to be
instituted only when the Court competent to take cognizance
of the offence alleged therein does so. The cognizance can,
in turn, be taken by a Magistrate on a complaint of factsPage 8
8
filed before him which constitutes such an offence. It may
also be taken if a police report is filed before the Magistrate
in writing of such facts as would constitute an offence. The
Magistrate may also take cognizance of an offence on the
basis of his knowledge or suspicion upon receipt of the
information from any person other than a police officer. In
the case of the Sessions Court, such cognizance is taken on
commitment to it by a Magistrate duly empowered in that
behalf. All this implies that the case is instituted in the
Magistrate’s Court when the Magistrate takes cognizance of
an offence, in which event the case is one instituted on a
complaint or a police report. The decision of this Court in
Jamuna Singh and Ors. v. Bahdai Shah AIR 1964 SC
1541, clearly explains the legal position in this regard. To
the same effect is the decision of this Court in Devrapally
Lakshminarayana Reddy and Ors. v. Narayana Reddy
and Ors. (1976) 3 SCC 252 where this Court held that a
case can be said to be instituted in a Court only when the
Court takes cognizance of the offence alleged therein and
that cognizance can be taken in the manner set out inPage 9
9
clauses (a) to (c) of Section 190(1) of the Cr.P.C. We may
also refer to the decision of this Court in Kamlapati Trivedi
v. State of West Bengal (1980) 2 SCC 91 where this
Court interpreted the provisions of Section 190 Cr.P.C. and
reiterated the legal position set out in the earlier decisions.
8. Applying the test judicially recognized in the above
pronouncements to the case at hand, we have no hesitation
in holding that no case was pending before the Magistrate
against the appellant as on the date the Amendment Act
came into force. That being so, the Magistrate on receipt of
a charge-sheet which was tantamount to institution of a
case against the appellant was duty bound to commit the
case to the Sessions as three of the offences with which he
was charged were triable only by the Court of Sessions. The
case having been instituted after the Amendment Act had
taken effect, there was no need to look for any provision in
the Amendment Act for determining whether the
amendment was applicable even to pending matters as on
the date of the amendment no case had been instituted
against the appellant nor was it pending before any Court toPage 10
10
necessitate a search for any such provision in the
Amendment Act. The Sessions Judge as also the High Court
were, in that view, perfectly justified in holding that the
order of committal passed by the Magistrate was a legally
valid order and the appellant could be tried only by the
Court of Sessions to which the case stood committed.
9. Having said so, we may now examine the issue from a
slightly different angle. The question whether any law
relating to forum of trial is procedural or substantive in
nature has been the subject matter of several
pronouncements of this Court in the past. We may refer to
some of these decisions, no matter briefly. In New India
Insurance Company Ltd. v. Smt. Shanti Misra, Adult
(1975) 2 SCC 840, this Court was dealing with the claim of
payment of compensation under the Motor Vehicles Act. The
victim of the accident had passed away because of the
vehicular accident before the constitution of the Claims
Tribunal under the Motor Vehicles Act, 1939, as amended.
The legal heirs of the deceased filed a claim petition for
payment of compensation before the Tribunal after thePage 11
11
Tribunal was established. The question that arose was
whether the claim petition was maintainable having regard
to the fact that the cause of action had arisen prior to the
change of the forum for trial of a claim for payment of
compensation. This Court held that the change of law
operates retrospectively even if the cause of action or right
of action had accrued prior to the change of forum. The
claimant shall, therefore, have to approach the forum as per
the amended law. The claimant, observed this Court, had a
“vested right of action” but not a “vested right of forum”. It
also held that unless by express words the new forum is
available only to causes of action arising after the creation of
the forum, the general rule is to make it retrospective. The
following passages are in this regard apposite:
“5. On the plain language of Sections 110-A and
110-F there should be no difficulty in taking the view
that the change in law was merely a change of
forum i.e. a change of adjectival or procedural law
and not of substantive law. It is a well-established
proposition that such a change of law operates
retrospectively and the person has to go to the new
forum even if his cause of action or right of action
accrued prior to the change of forum. He will have a
vested right of action but not a vested right of
forum. If by express words the new forum is made
available only to causes of action arising after the
creation of the forum, then the retrospectivePage 12
12
operation of the law is taken away. Otherwise the
general rule is to make it retrospective. The
expressions “arising out of an accident” occurring in
sub-section (1) and “over the area in which the
accident occurred”, mentioned in sub-section (2)
clearly show that the change of forum was meant to
be operative retrospectively irrespective of the fact
as to when the accident occurred. To that extent
there was no difficulty in giving the answer in a
simple way. But the provision of limitation of 60
days contained in sub-section (3) created an
obstacle in the straight application of the wellestablished principle of law. If the accident had
occurred within 60 days prior to the constitution of
the tribunal then the bar of limitation provided in
sub-section (3) was not an impediment. An
application to the tribunal could be said to be the
only remedy. If such an application, due to one
reason or the other, could not be made within 60
days then the tribunal had the power to condone the
delay under the proviso. But if the accident occurred
more than 60 days before the constitution of the
tribunal then the bar of limitation provided in subsection (3) of Section 110-A on its face was
attracted. This difficulty of limitation led most of the
High Courts to fall back upon the proviso and say
that such a case will be a fit one where the tribunal
would be able to condone the delay under the
proviso to sub-section (3), and led others to say that
the tribunal will have no jurisdiction to entertain
such an application and the remedy of going to the
civil court in such a situation was not barred under
Section 110-F of the Act. While taking the latter view
the High Court failed to notice that primarily the law
engrafted in Sections 110-A and 110-F was a law
relating to the change of forum.
6. In our opinion in view of the clear and
unambiguous language of Sections 110-A and 110-F
it is not reasonable and proper to allow the law of
change of forum give way to the bar of limitation
provided in sub-section (3) of Section 110-A. It must
be vice versa. The change of the procedural law of
forum must be given effect to. The underlying
principle of the change of law brought about by the
amendment in the year 1956 was to enable the
claimants to have a cheap remedy of approachingPage 13
13
the claims tribunal on payment of a nominal court
fee whereas a large amount of ad valorem court fee
was required to be paid in civil court.”
10. In Hitendra Vishnu Thakur and Ors. etc. ect. v.
State of Maharashtra and Ors. (1994) 4 SCC 602, one
of the questions which this Court was examining was
whether clause (bb) of Section 20(4) of Terrorist and
Disruptive Activities (Prevention) Act, 1987 introduced by an
Amendment Act governing Section 167(2) of the Cr.P.C. in
relation to TADA matters was in the realm of procedural law
and if so, whether the same would be applicable to pending
cases. Answering the question in the affirmative this Court
speaking through A.S. Anand, J. (as His Lordship then was),
held that Amendment Act 43 of 1993 was retrospective in
operation and that clauses (b) and (bb) of sub-section (4) of
Section 20 of TADA apply to the cases which were pending
investigation on the date when the amendment came into
force. The Court summed up the legal position with regard
to the procedural law being retrospective in its operation and
the right of a litigant to claim that he be tried by a particular
Court, in the following words:Page 14
14
“26. xxx xxx
(i) A statute which affects substantive rights is
presumed to be prospective in operation unless
made retrospective, either expressly or by necessary
intendment, whereas a statute which merely affects
procedure, unless such a construction is textually
impossible, is presumed to be retrospective in its
application, should not be given an extended
meaning and should be strictly confined to its clearly
defined limits.
(ii) Law relating to forum and limitation is
procedural in nature, whereas law relating to right of
action and right of appeal even though remedial is
substantive in nature.
(iii) Every litigant has a vested right in
substantive law but no such right exists in
procedural law.
(iv) A procedural statute should not generally
speaking be applied retrospectively where the result
would be to create new disabilities or obligations or
to impose new duties in respect of transactions
already accomplished.
(v) A statute which not only changes the
procedure but also creates new rights and liabilities
shall be construed to be prospective in operation,
unless otherwise provided, either expressly or by
necessary implication.”
11. We may also refer to the decision of this Court in
Sudhir G. Angur and Ors. v. M. Sanjeev and Ors.
(2006) 1 SCC 141 where a three-Judge Bench of this Court
approved the decision of the Bombay High Court in Shiv
Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass
and Ors. (1952) 54 Bom LR 330 and observed:Page 15
15
“12….It has been held that a Court is bound to take
notice of the change in the law and is bound to
administer the law as it was when the suit came up
for hearing. It has been held that if a Court has
jurisdiction to try the suit, when it comes on for
disposal, it then cannot refuse to assume jurisdiction
by reason of the fact that it had no jurisdiction to
entertain it at the date when it was instituted. We
are in complete agreement with these
observations…”
(emphasis supplied)
12. In Shiv Bhagwan Moti Ram Saraoji’s case (supra)
the Bombay High Court has held procedural laws to be in
force unless the legislatures expressly provide to the
contrary. The Court observed:
“…Now, I think it may be stated as a general
principle that no party has a vested right to a
particular proceeding or to a particular forum, and it
is also well settled that all procedural laws are
retrospective unless the Legislature expressly states
to the contrary. Therefore, procedural laws in force
must be applied at the date when a suit or
proceeding comes on for trial or disposal…”
(emphasis supplied)
13. The amendment to the Criminal Procedure Code in the
instant case has the effect of shifting the forum of trial of
the accused from the Court of Magistrate First Class to the
Court of Sessions. Apart from the fact that as on the date
the amendment came into force no case had been institutedPage 16
16
against the appellant nor the Magistrate had taken
cognizance against the appellant, any amendment shifting
the forum of the trial had to be on principle retrospective in
nature in the absence of any indication in the Amendment
Act to the contrary. The appellant could not claim a vested
right of forum for his trial for no such right is recognised.
The High Court was, in that view of the matter, justified in
interfering with the order passed by the Trial Court.
14. The questions formulated by the Full Bench of the High
Court were answered in the negative holding that all cases
pending in the Court of Judicial Magistrate First Class as on
22nd February, 2008 when the amendment to the First
Schedule to the Cr.P.C. became operative, will remain
unaffected by the said amendment and such matters as
were, in the meanwhile committed to the Court of
Sessions, will be sent back to the Judicial Magistrate First
Class for trial in accordance with law. In coming to that
conclusion the Full Bench placed reliance upon three
decisions of this Court in Manujendra Dutt. v. Purnedu
Prosad Roy Chowdhury & Ors. AIR 1967 SC 1419,Page 17
17
Commissioner of Income-tax, Bangalore v. Smt. R.
Sharadamma (1996) 8 SCC 388 and R.
Kapilanath(Dead) through L.R. v. Krishna (2003) 1
SCC 444. The ratio of the above decisions, in our opinion,
was not directly applicable to the fact situation before the
Full Bench. The Full Bench of the High Court was concerned
with cases where evidence had been wholly or partly
recorded before the Judicial Magistrate First Class when the
same were committed to the Court of Sessions pursuant to
the amendment to the Code of Criminal Procedure. The
decisions upon which the High Court placed reliance did
not, however, deal with those kind of fact situations. In
Manujendra Dutt’s case (supra) the proceedings in the
Court in which the suit was instituted had concluded. At
any rate, no vested right could be claimed for a particular
forum for litigation. The decisions of this Court referred to
by us earlier settle the legal position which bears no
repetition. It is also noteworthy that the decision in
Manujendra Dutt’s case (supra) was subsequently
overruled by a seven-Judge Bench of this Court in V.Page 18
18
Dhanapal Chettiar v. Yesodai Ammal (1979) 4 SCC
214 though on a different legal point.
15. So also the decision of this Court in Smt. R.
Sharadamma’s case (supra) relied upon by the Full Bench
was distinguishable on facts. The question there related to a
liability incurred under a repealed enactment. Proceedings
in the forum in which the case was instituted had concluded
and the matter had been referred to Inspecting Assistant
Commissioner before the dispute regarding jurisdiction
arose.
16. The decision of this Court in R. Kapilanath’s case
(supra), relied upon by the Full Bench was also
distinguishable since that was a case where the eviction
proceedings before the Court of Munsif under the Karnataka
Rent Control Act, 1961 had concluded when the Karnataka
Rent Control (Amendment) Act, 1994 came into force. By
that amendment, the Court of Munsif was deprived of
jurisdiction in such cases. This Court held that the change of
forum did not affect pending proceedings. This Court further
held that the challenge to the competence of the forum wasPage 19
19
raised for the first time, that too as an additional ground
before this Court and that, for other factors, the Court was
inclined to uphold the jurisdiction of the Court of Munsif to
entertain and adjudicate upon the eviction matter. The fact
situation was thus different in this case.
17. Even otherwise the Full Bench failed to notice the law
declared by this Court in a series of pronouncements on the
subject to which we may briefly refer at this stage. In Nani
Gopal Mitra v. State of Bihar AIR 1970 SC 1636, this
Court declared that amendments relating to procedure
operated retrospectively subject to the exception that
whatever be the procedure which was correctly adopted and
proceedings concluded under the old law the same cannot
be reopened for the purpose of applying the new procedure.
In that case the trial of the appellant had been taken up by
Special Judge, Santhal Paraganas when Section 5(3) of the
Prevention of Corruption Act, 1947 was still operative. The
appellant was convicted by the Special Judge before the
Amendment Act repealing Section 5(3) was promulgated.
This Court held that the conviction pronounced by thePage 20
20
Special Judge could not be termed illegal just because there
was an amendment to the procedural law on 18th December
1964. The following passage is, in this regard, apposite:
“…. It is therefore clear that as a general rule the
amended law relating to procedure operates
retrospectively. But there is another equally
important principle, viz. that a statute should not be
so construed as to create new disabilities or
obligations or impose new duties in respect of
transactions which were complete at the time the
amending Act came into force–(See In re a
Debtor, and In re Vernazza. The same principle is
embodied in Section 6 of the General Clauses Act
which is to the following effect:
xx xx xx (Section 6 is quoted) xx xx xx
…. The effect of the application of this principle is
that pending cases although instituted under the old
Act but still pending are governed by the new
procedure under the amended law, but whatever
procedure was correctly adopted and concluded
under the old law cannot be opened again for the
purpose of applying the new procedure. In the
present case, the trial of the appellant was taken up
by the Special Judge, Santhal Parganas when
Section 5(3) of the Act was still operative. The
conviction of the appellant was pronounced on March
31, 1962 by the Special Judge, Santhal Parganus
long before the amending Act was promulgated. It is
not hence possible to accept the argument of the
appellant that the conviction pronounced by the
Special Judge, Santhal Parganas has become illegal
or in any way defective in law because of the
amendment to procedural law made on December
18, 1964. In our opinion, the High Court was right in
invoking the presumption under Section 5(3) of the
Act even though it was repealed on December 18,
1964 by the amending Act. We accordingly reject the
argument of the appellant on this aspect of the
case.”
(emphasis supplied)Page 21
21
18. Reference may also be made upon the decision of this
Court in Anant Gopal Sheorey v. State of Bombay AIR
1958 SC 915 where the legal position was stated in the
following words:
“4. The question that arises for decision is whether
to a pending prosecution the provisions of the
amended Code have become applicable. There is no
controversy on the general principles applicable to
the case. No person has a vested right in any course
of procedure. He has only the right of prosecution or
defence in the manner prescribed for the time being
by or for the Court in which the case is pending and
if by an Act of Parliament the mode of procedure is
altered he has no other right than to proceed
according to the altered mode. See Maxwell on
Interpretation of Statutes on p. 225; The Colonial
Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369,
372). In other words a change in the law of
procedure operates retrospectively and unlike the
law relating to vested right is not only prospective.”
19. The upshot of the above discussion is that the view
taken by the Full Bench holding the amended provision to be
applicable to pending cases is not correct on principle. The
decision rendered by the Full Bench would, therefore, stand
overruled but only prospectively. We say so because the trial
of the cases that were sent back from Sessions Court to the
Court of Magistrate First Class under the orders of the Full
Bench may also have been concluded or may be at anPage 22
22
advanced stage. Any change of forum at this stage in such
cases would cause unnecessary and avoidable hardship to
the accused in those cases if they were to be committed to
the Sessions for trial in the light of the amendment and the
view expressed by us.
20. The principle of prospective overruling has been
invoked by this Court, no matter sparingly, to avoid
unnecessary hardship and anomalies. That doctrine was first
invoked by this Court in I.C. Golak Nath and Ors. v. State
of Punjab and Ors. AIR 1967 SC 1643 followed by the
decision of this Court in Ashok Kumar Gupta and Anr. v.
State of U.P. and Ors. (1997) 5 SCC 201.
21. In Baburam v. C.C. Jacob and Ors. (1999) 3 SCC
362, this Court invoked and adopted a device for avoiding
reopening of settled issues, multiplicity of proceedings and
avoidable litigation. The Court said:
“5. The prospective declaration of law is a devise
innovated by the apex court to avoid reopening of
settled issues and to prevent multiplicity of
proceedings. It is also a devise adopted to avoid
uncertainty and avoidable litigation. By the very
object of prospective declaration of law, it is deemed
that all actions taken contrary to the declaration of
law prior to its date of declaration are validated. ThisPage 23
23
is done in the larger public interest. Therefore, the
subordinate forums which are legally bound to apply
the declaration of law made by this Court are also
duty-bound to apply such dictum to cases which
would arise in future only. In matters where
decisions opposed to the said principle have been
taken prior to such declaration of law cannot be
interfered with on the basis of such declaration of
law…”
(emphasis supplied)
22. To the same effect is the decision of this Court in
Harish Dhingra v. State of Haryana & Ors. (2001) 9
SCC 550 where this Court observed:
“7. Prospective declaration of law is a device
innovated by this Court to avoid reopening of settled
issues and to prevent multiplicity of proceedings.
It is also a device adopted to avoid uncertainty and
avoidable litigation. By the very object of
prospective declaration of law it is deemed that all
actions taken contrary to the declaration of law, prior
to the date of the declaration are validated. This is
done in larger public interest. Therefore, the
subordinate forums which are bound to apply law
declared by this Court are also duty bound to apply
such dictum to cases which would arise in future.
Since it is indisputable that a court can overrule a
decision there is no valid reason why it should not be
restricted to the future and not to the past.
Prospective overruling is not only a part of
constitutional policy but also an extended facet of
stare decisis and not judicial legislation.”
(emphasis
supplied)
23. In Sarwan Kumar and Anr. v. Madan Lal Aggarwal
(2003) 4 SCC 147, this Court held that though the doctrinePage 24
24
of prospective overruling was initially made applicable to the
matters arising under the Constitution but subsequent
decisions have made the same applicable even to cases
under different statutes. The Court observed:
“15. The doctrine of “prospective overruling” was
initially made applicable to the matters arising under
the Constitution but we understand the same has
since been made applicable to the matters arising
under the statutes as well. Under the doctrine of
“prospective overruling” the law declared by the
Court applies to the cases arising in future only and
its applicability to the cases which have attained
finality is saved because the repeal would
otherwise work hardship to those who had
trusted to its existence. Invocation of doctrine of
“prospective overruling” is left to the discretion of
the court to mould with the justice of the cause or
the matter before the court.”
(emphasis supplied)
24. In Rajasthan State Road Transport Corporation
and Anr. v. Bal Mukund Bairwa (2009) 4 SCC 299, this
Court relied upon the observations made by Justice
Benjamin N. Cardozo in his famous compilation of lectures
The Nature of Judicial Process – that “ in the vast
majority of cases, a judgment would be retrospective. It is
only where the hardships are too great that retrospective
operation is withheld.”Page 25
25
25. The present case, in our opinion, is one in which we
need to make it clear that the overruling of the Full Bench
decision of the Madhya Pradesh High Court will not affect
cases that have already been tried or are at an advanced
stage before the Magistrates in terms of the said decision.
26. With the above observations, this appeal fails and is
hereby dismissed.
………………….………………………….………..……J.
(T.S. THAKUR)
…………………..
………………………….………..……J
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi
February 26, 2013

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