Bombay High Court
Ferozkhan Jabbarkhan Pathan And Anr vs The State Of Maharashtra And Anr on 14 February, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
(1) CRI.WP.945/2019 & ORS.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.945 OF 2019
Santosh Lakhichand Patil & Anr. = PETITIONERS
VERSUS
The State of Maharashtra = RESPONDENT
-----
Mr.HP Patil,Advocate for Petitioners;
Mrs.PV Diggikar,APP for Respondent-State
WITH
CRIMINAL WRIT PETITION NO.1409 OF 2019
Bhanudas @ Bhanupratap Honaji
Gajbhiv and Ors. = PETITIONERS
VERSUS
The State of Maharashtra = RESPONDENT
-----
Mr.VR Dhorde,Advocate for Petitioners;
Mrs. PV Diggikar,APP for Respondent-State
WITH
CRIMINAL WRIT PETITION NO.1404 OF 2019
Salman Mushtaque Shaikh = PETITIONER
VERSUS
The State of Maharashtra = RESPONDENT
-----
Mr.GR Syed,Advocate for Petitioner;
Mrs. RP Gour,APP for Respondent-State
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(2) CRI.WP.945/2019 & ORS.
WITH
CRIMINAL WRIT PETITION NO.2056 OF 2019
Anil s/o Hanumantrao Walkle
and Ors. = PETITIONERS
VERSUS
The State of Maharashtra = RESPONDENT
-----
Mr.SK Chavan,Advocate for Petitioner/s
Mr.PK Lakhotiya,APP for Respondent-State
WITH
CRIMINAL WRIT PETITION NO.1785 OF 2019
Ferozkhan Jabbarkhan Pathan
& Anr. = PETITIONERS
VERSUS
The State of Maharashtra & Anr. = RESPONDENT
-----
Mr.AS Barlota,Advocate for Petitioner/s
Mr.PK Lakhotiya,APP for Respondent-State
-----
CORAM : SMT.VIBHA KANKANWADI,J.
CRI.WP.NOS.945/19,1409/91 & 1404/19 RESERVED ON :10th DECEMBER,2019. CRI.WP. NOS.2056/91 & 1785/2019 RESERVED ON : 14th JANUARY,2020.
PRONOUNCED ON : 14th February,2020. COURT'S ORDER:
1. In Criminal Writ Petition 945/2019, the petitioners challenge order dated 5.3.2019 passed ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:37 ::: (3) CRI.WP.945/2019 & ORS.
by 2nd Jt.CJJD and JMFC, Jalgaon in SCC No. 967/2016, whereby the learned trial Judge has committed the case to the Court of Session. Petitioners in Criminal Writ Petition No. 1409/2019 impugn order dated 29.7.2019 passed below Exh.1 in CC No.103/2015 by the JMFC,Shevgaon, whereby the case was committed to the Court of Session. Petitioners in Criminal Writ Petition No. 1404/2019 challenge order dated 28.6.2019 passed by Additional Sessions Judge, Shrirampur, Dist. Ahmednagar on application below Exh.4 in Sessions Case No.19/2019. Committal order dated 27.3.2019 passed by the Chief Judicial Magistrate, Aurangabad in RCC No. 577/2013 and order dt. 3.9.2019 passed by 11th District Judge and Sessions Judge, Aurangabad in Sessions Case No. 164/2019, are the subject matter of challenge in Criminal Writ Petition No. 1785/2019, whereas petitioners in Criminal Writ Petition No. 2056/2019 assail the order dated 30.9.2019 passed by JMFC, Parbhani in SCC No. 2106/2017, whereby the learned JMFC committed the case to the Court of Session, Parbhani for further trial.
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2. Since all these criminal writ petitions raise almost similar issue and, therefore, they are proposed to be heard and disposed of by this common order.
3. All the petitioners are original accused, who are facing trial for the offence punishable under Section 353 of Indian Penal Code with some other sections of Indian Penal Code (IPC). All the cases involved in these writ petitions were instituted/filed before the Court of Judicial Magistrate, First Class. Except the case which is the subject matter in writ petition No.945/2019, in other three writ petitions, the cases before the learned Judicial Magistrate, First Class have been committed to the Court of Sessions under Section 323 of Code of Criminal Procedure (for short, Cr.P.C.); whereas as regards the case involved in writ petition No.945/2019, the learned JMFC says that he has committed the case under Section 209 of Cr.P.C.
4. The background or the reasons as to why the cases are transferred/committed to the Court of ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (5) CRI.WP.945/2019 & ORS.
Session, are, - i) Amendment to IPC as well as Code of Criminal Procedure (Cr.P.C) by the Government of Maharashtra by the Indian Penal Code and the Code of Criminal Procedure (Maharashtra Amendment) Act 2017; and the decision of this court at Nagpur Bench in Criminal Application (APL) No.1146/2018 (Shyamrao Vithoba Pillare Vs. State of Maharashtra through PSO, P.S.Gadchiroli, decided on 13.12.2018, wherein after examination of the first witness by the learned Chief Judicial Magistrate, an order came to be passed for committal of the case to the Court of Session and thereupon, the accused had filed an application for remitting the case to the Court of Chief Judicial Magistrate. The said application came to be rejected and the said order was challenged before the High Court. Taking into consideration the decision in Ramesh Kumar Soni Vs. State of Madhya Pradesh - (2013) 14 SCC 696 and Securities and Exchange Board of India Vs. Classic Credit Ltd. - 2017 9 Scale 458 , it was held that the change in the forum by the Maharashtra Act No. 40 of 2018, is retrospective. The accused cannot claim vested right in respect of forum for trial.
As such, right is not recognized or conferred by
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law and, therefore, rejection of the application of the accused by the learned Sessions Judge was upheld by this court. Taking into consideration this decision, it appears that many cases in Maharashtra State have been transferred/committed to the Court of Sessions, wherein Section 332 and/or 353 of IPC are involved. The petitioners before this Court in all these petitions are also challenging the respective orders passed by the learned Judicial Magistrate, committing the cases to the Court of Session. It will not be out of place to mention here that, except the case involved in Writ Petition No.945/2019, all other cases, involved in rest of the writ petitions, were part-heard. In Criminal Writ Petition No.2056/2019, even statement of the accused under Section 313 of Cr.P.C. was recorded and in Criminal Writ Petition No. 1785/2019, the case was posted for recording of statement of the accused under Section 313 of Cr.P.C. In Criminal Writ Petition No.945/2019 and Criminal Writ Petition No.1785/2019, there is no mention as to whether the cases are part-heard or not. But, the recourse, that has been taken in the said cases by the ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (7) CRI.WP.945/2019 & ORS.
learned JMFC, is under Section 209 of Cr.P.C.
5. Additional fact, that is required to be mentioned here is that, in Criminal Writ Petition No.1404/2019, after the committal of the case, an application came to be filed on behalf of the accused before the learned Additional Sessions Judge praying that, the case be tried de novo or to remand the matter and the said application came to be rejected.
6. In Criminal Writ Petition No.1785/2019, the accused has filed an application only to remand the case to the Court of Chief Judicial Magistrate and the said application came to be rejected.
7. Heard the learned Advocates appearing for the respective parties and respective learned APPs for the State in respective matters.
8. It has been vehemently submitted by the learned Advocates representing the respective petitioners that, even if we consider the decision in Ramesh Kumar Soni (supra), the Hon'ble Supreme ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (8) CRI.WP.945/2019 & ORS.
Court, after over-ruling the Full Bench decision of the Madhya Pradesh High court, had kept those cases, which were part-heard before the learned Magistrate, with the same Court. The issue involved in the said matter was identical. By the Act of Code of Criminal Procedure (M.P.Amendment), 2007, the First Schedule to the Code of Criminal Procedure was amended. In respect of certain offences and in place of words "Magistrate of First Class", it was substituted by the words "Court of Sessions". Here in this case also, by the Act of 40 of 2018, the Government of Maharashtra has changed the forum of the court trying the offences under Sections 332 and 353 of IPC from "Magistrate of First Class" to "Court of Sessions". Though observation has been made that the procedural law are retrospective unless the Legislature expressly states to the contrary; yet the Hon'ble Supreme Court invoked the principle of "prospective over- ruling" to avoid unnecessary hardship and anomalies. In other words, though the judgment of the Full bench of Madhya Pradesh High Court was over-ruled, yet the amendment was made applicable prospectively; thereby the cases, which had been ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (9) CRI.WP.945/2019 & ORS.
already decided by the Magistrate after being remitted or which had reached advance stages of trial before the Magistrate, were saved from re- committal. In fact, such approach ought to have been taken by the Courts below in all these cases also.
9. Some of the learned Advocates appearing for the petitioners also submitted that this Court, Bench at Nagpur, while dealing with the case of Shyarmrao Vithoba Pillare (supra), had not considered the decision of the Apex court in SEBI's case (supra) in proper perspective. Reference was made to Ramesh Soni's case wherein many decisions of the Apex court were taken into consideration and especially in respect of Ramesh Soni's case, it was observed that, the M.P.High Court Full Bench has taken the view that since there is no specific provision contained in the Amendment Act, making the amendment applicable to the pending cases, the same would not apply to the cases that were already filed before the Magistrate. Though this position was overruled by the Apex court; yet the observations, those have ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (10) CRI.WP.945/2019 & ORS.
been made in SEBI's case (supra), are required to be considered. In SEBI's case, amendment to Section 26(2) of SEBI Act, which was considered was, "No court inferior to that of Court of Sessions shall try any offence punishable under this Act." Therefore, taking into consideration the specific wording, it was held that the forum for trial earlier vested in the Court of Metropolitan Magistrate or Judicial Magistrate of the First Class was, retrospectively amended in as much as the forum of trial after 2002 Amendment Act was retrospectively changed to the Court of Session. The statute that affects the rights of the accused was also considered. After taking note of the decision in Mohd. Idris Vs. Sat Narain - AIR 1966 SC 1494, it is observed, " it was also observed that the provisions for change over the proceeding from one court to another are only found in Statute, which takes away the jurisdiction of one court and confer it on another, in pending actions. Since the Amendment Act did not show the pending proceedings before the court would abate, it was felt that the Court before which proceedings were filed continued to have the jurisdiction to ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (11) CRI.WP.945/2019 & ORS.
adjudicate the same". Thereafter, the position in Nani Gopal Mittal Vs. State of Bihar - AIR 1970 SC 1636; Ambalal Sarabhai Enterprises Ltd. Vs. Amrit Lal & Co. - (2001) 8 SCC 397; R.Kapilnath Vs. Krishna - (2003) 1 SCC 444; Ramesh Kumar Soni Vs. State of Madhya Pradesh - (2013) 4 SCC 696 and Videocon International Ltd. Vs. Securities and Exchange Board of India - (2015) 4 SCC 33 , were considered and it was observed that, "From perusal of the conclusions drawn in the above judgments, we are inclined to accept the contention that change of forum could be substantive or procedural. It may well be procedural when the remedy was yet to be availed of, but where remedy had already been availed of (under existing statutory provisions), the right may be treated as having crystallized into a vested substantive right." On the basis of these observations, it was contended by the petitioners, in whose cases even statements under section 313 of Cr.P.C. have been recorded that, a substantive right to be tried by the Court of Judicial Magistrate First Class is vested with the accused persons and, therefore, the learned Magistrate ought not to have committed the cases to ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (12) CRI.WP.945/2019 & ORS.
the Court of Session or the learned Additional Sessions Judge ought to have remitted the cases back to the Court of learned Magistrate.
10. The learned Advocate representing the petitioners in Criminal Writ Petition No.945/2019, wherein the committal order passed by the learned Magistrate stated that it is under Section 209 of Cr.P.C., submitted that, the learned Magistrate failed to consider the difference between committal of a case under Section 209 of Cr.P.C. and under Section 323 of Cr.P.C. Reliance has been placed on the decision of Madras High Court in Ramaswamy Gounder and Ors. Vs. State - 1981 Cri.L.J. 1054; wherein it has been observed, -
"Where the Magistrate had committed the case before the Sessions Court only on a part heard evidence of a single witness the order passed by the Magistrate could not be said to suffer from any irregularity or illegality in committing the case to Sessions Court as the Magistrate can commit a criminal case to the Sessions Court, if it appears to him, on the materials and the evidence placed before him, that the case ought to be tried by that court and this power of the Magistrate is, in addition to his power under Section 209 to commit cases exclusively triable by Court of Sessions."::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 :::
(13) CRI.WP.945/2019 & ORS.
11. In the same decision, reliance was placed on the observations of another case before the same court in Veera Raghavaloo Vs. State - 1978 Cri LJ 209, wherein, it has been observed, thus, -
"To invoke the provisions of Section 323, Criminal Procedure Code, it should appear to the Magistrate in any inquiry into an offence or a trial before him that the case is one which ought to be tried by the Court of Session. The case need not be one exclusively triable by a Court of Session. If the material in the case discloses an offence triable exclusively by a Court of Session, the Magistrate has then no option but to commit the case to the Sessions. On the other hand, if the material discloses only an offence which is triable by the Magistrate himself then he has a discretion either to try it himself for commit. What is essential for the commitment of the case to the Court of Session is merely the opinion of the Magistrate that the case is one which ought to be tried by the Court of Session".
12. Reliance has also been placed on the decision in Dharam Pal and Ors. Vs. state of Haryana and Anr. - AIR 2013 SC 3018, which is the Full Bench judgment of the Apex court, wherein, it has been observed as under, -
" It is well settled that cognizance of an offence can only be taken once.
In the event, a Magistrate takes ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (14) CRI.WP.945/2019 & ORS.
cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. "
13. Another point has also been raised that when the legal position is clear that the substantive law would be prospective in nature and, therefore, the punishment, which has been enhanced by the Amended Act of 40 of 2018 by the Government of Maharashtra, would come into force after the Act has come into force and it cannot be retrospective and made applicable to the pending cases; the accused persons, who are facing the said trial, cannot be punished as per the Amended Act. ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 :::
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Therefore, it was absolutely not necessary for the learned Magistrate to commit the case to the Court of Session, when the learned Magistrate cannot impose the punishment as per the new Act. Reliance has been placed on the decision in Kanwar Pal @ Mama Vs. State - 2017 Cri.LJ 2124 (Delhi High Court), wherein reliance was placed on earlier decision of the same High court in Sultan Vs. State - 2004 (73 DRJ, 460, in which it has been held, "it is a fundamental right of every person that he should not be subjected to greater penalty than what law prescribes and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would down-grade the harshness of the sentence for same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused, who awaits judicial verdict regarding sentence." Further, reliance has been placed on the decision in Trilok Chand Vs. State of Himachal Pradesh (Criminal Appeal No. 8131/2010 decided by the Apex Court on 1.10.2019) , wherein the prohibition contained in Article 20(1) ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (16) CRI.WP.945/2019 & ORS.
of the Constitution of India, was taken note of. He also relied on certain other authorities in respect of interpretation of the statutes and to canvass that the Court should adopt construction which will carry out the obvious intention of the legislature and it is not the job of the court to add words to the statutes or subtract anything when the literary reading produce intelligible result. Further, he canvassed that it is well settled salutary principle that if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. All the learned Advocates appearing for the petitioners have, therefore, prayed for setting aside the respective orders and prayed for issuing directions in the matter that the trial be proceeded before the court of JMFC.
14. Per contra, learned APPs supported the orders those have been passed and submitted that since the forum itself has been changed, it was incumbent upon the learned Magistrates to commit the cases to the Court of Session to which the jurisdiction was given to try the cases. They all ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (17) CRI.WP.945/2019 & ORS.
have relied on the decision in Shyamrao Vithoba Pillare's case (supra) and they have pointed out that in Ramesh Kumar Soni's case (supra) as well as in SEBI's case (supra), the Apex court has categorically stated as well as, in fact, reiterated the legal position that was laid down much earlier in Hitendra Thakur's case (supra), wherein reference was made to case in Shiv Bhagwan Moti Ram Saraoji Vs. Onkarmal Ishar Dass and Ors.
- (1952) 54 Bom LR 330, wherein this Court held that, "... Procedural laws to be in force unless the legislatures expressly provide to the contrary................. .........Now, I think it may be stated as a general principle that no party has a vested right to a particular proceedings 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."
15. Learned APP Mr.Lakhotiya further submitted that the petitioners, in whose cases statements under Section 313 of Cr.P.C. have been recorded and posted for recording such statements, need not fear for de novo trial in anticipation ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (18) CRI.WP.945/2019 & ORS.
that the so-called admissions of the witnesses would not be considered. The petitioner in Writ Petition No.1404/2019 also cannot demand de novo trial before the learned Additional Sessions Judge as of right. The courts are aware about the difficulty, so also the fact that it would jeopardize the witnesses also. The learned Sessions Judge may take into consideration the evidence that has been recorded by the learned Magistrate and he may proceed further in view of Section 326 of Cr.P.C. He placed reliance on the decision in Bhaskar @ Prabhaskar and Ors. Vs. The State - AIR 1999 SC 3549, wherein it has been observed, thus, -
"The court cannot afford to be oblivious to the reality that no witness is, on his own volition, desirous of going to the court for remaining there until his turn is called to mount the witness stand and to undergo the agony of facing grueling questions. He does it as he has no other option when summoned by the court. Most of the witnesses can attend the courts only by bearing with all the inconveniences to themselves and at the cost of loss of their valuable time. When any witness had already undergone such agony once in connection with the same case, no effort to save him from undergoing that agony once again for the very same case should be spared, unless such re-summoning is absolutely ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (19) CRI.WP.945/2019 & ORS.
necessary to meet the ends of justice. On the contrary, no prejudice would be caused to the accused as he can invoke the powers envisaged in the proviso to sub-section (1) of Section 326 of the Code. If the successor Judge is of opinion that further examination of any witness, whose evidence has already been recorded is necessary in the interest of justice, the Judge would re-summon such witness either for further examination or further cross-examination and re-examination. When such a course is permitted by law there can be no possible grievance for the accused that prejudice would be caused to him if the evidence already on record is treated as evidence in the case."
He also placed reliance on the decision in Ramaswamy Gounder and Ors. Vs. State (supra) , wherein, in fact, it was observed that, "though the matter is part-heard, it would be within the powers of the Magistrate under Section 209 of Cr.P.C. to commit the case to the Court of Session when it is found that it is exclusively triable by the Court of Session. It was submitted by the learned APPs that in view of the Amended Act of 40/2018, forum to try the case itself is changed and, therefore, there was no illegality committed by the learned Magistrates in committing the cases to the Court of Sessions.
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16. At the outset, it is to be noted that, by Maharashtra Amendment Act of 40/2018, amendments were made to Sections 332 and 353 of IPC. Punishment for committing those offences has been increased to five years. Further, amendment has also been made in Section 309 of Cr.P.C. as well as first Schedule to Cr.P.C. By amendment to Section 309 of Cr.P.C., trial has been made time-bound and it is prescribed that an inquiry or trial shall be completed as far as possible within a period of six months from the date of filing of the charge-sheet. As regards the amendment to first Schedule is concerned, Section 332 of IPC is made cognizable, non-bailable and to be tried by the Court of Session. So also Section 353 of IPC has been made cognizable, non-bailable and triable by the Court of Session. Thus, the forum to try the offence so also the punishment has been changed. However, as regards the punishment part or quantum of punishment is concerned, it would come into effect for those offences, which would be committed after the said Act has come into force, i.e. 7 th June, 2018. In the present petitions, none of the cases relate to the incident/offence having taken place ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (21) CRI.WP.945/2019 & ORS.
after this scheduled date. All the incidents are prior to coming into force of the Amendment Act. Therefore, in view of Article 20(1) of the Constitution of India and the decision in Trilokchand's case (supra), that part of the amendment cannot be made applicable in the present cases. The cases in hand would be governed for the purpose of punishment as per the old Act.
17. Now, it is required to be seen as to whether the change in the forum requires committal of the case or not. There is already the decision by this Court in Shyamrao Pillare's case (supra), wherein this Court, after placing reliance on Ramesh Kumar Soni's case (supra) and SEBI's case (supra), held that, the procedural law would be retrospective and therefore, the committal of the case by learned Chief Judicial Magistrate therein can not be said to be illegal. Now, the interpretation, which the learned Advocates for the petitioner intend to make in respect of those aforesaid cases (Ramesh Soni and SEBI) cannot be accepted. They have tried to interpret these two cases decided by the Apex court, on their own way. ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 :::
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However, it is to be noted that as regards Ramesh Kumar Soni's case, in which the case was instituted after the Madhya Pradesh Amendment Act came into force and, therefore, it was observed in para 13 of the said case, as under, -
"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 instituted 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. "
Further, taking into consideration the earlier judgments in Hitendra Thakur (supra) and Shiv Bhagwan (supra), it was reiterated that, "The procedural laws being retrospective in its operation, the litigant has no right to claim that the case be tried before a particular forum." Further, note of the decision in the case of Nani ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (23) CRI.WP.945/2019 & ORS.
Gopal Mittal (supra) wherein the Apex court had declared that the amendments relating to procedure operate retrospectively subject to exception that whatever be the procedure which was correctly adopted and proceeding concluded under old law, the same cannot be re-opened for the purpose of applying new procedure."
18. In Anant Gopal Sheorey Vs. State of Bombay -AIR 1958 SC 915, it was categorically stated that, "No person has vested right in any course of procedure. He has only 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".
19. Even in SEBI's case (supra), the Apex Court has observed in paras 33 as follows, -
"33. In a manner of understanding, it may well be possible to conclude, that the adjudicatory 'forum' was not altered at all by 'the 2002 Amendment Act'. In this behalf, reference may be made to Section 26 (2) of 'the SEBI ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (24) CRI.WP.945/2019 & ORS.
Act', as it existed prior to the 2002 amendment. The above provisions mandated, that no Court inferior to that of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class) shall try an offence punishable under this Act. The contemplated 'forum' of adjudication could be the Court of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), or any other higher court. And not necessarily the Court of a Metropolitan Magistrate (or, a Judicial Magistrate of the first class). The higher court which could have tried matters even before 'the 2002 Amendment Act', could well be the Court of Session. And as such, in case of a determination, the trial of offences under 'the SEBI Act' could have been conducted by a Court of Session even prior to 'the 2002 Amendment Act', there would be nothing wrong about it. The provision, as it existed prior to 'the 2002 Amendment Act', clearly contemplated that even a Court of Session could try offences postulated by the provisions of 'the SEBI Act'. As such, when 'the 2002 Amendment Act'' provided that adjudication of offences under 'the SEBI Act' would be by a court not inferior to that of a Court of Session, the position postulated prior to the aforesaid amendment cannot be stated to have been breached. It may well be said to be curtailed from the original position. But, it could not be said to be in conflict with the original position. In a similar manner of understanding, even after 'the 2014 Amendment Act', which provided that offences arising under 'the SEBI Act' would be tried by a Special Court (Section 26B), the position cannot be taken to be at variance from the one, as it existed prior to the 2002 amendment, as also, the position as it ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (25) CRI.WP.945/2019 & ORS.
existed after 'the 2002 Amendment Act'. The reason for the above inference is, that a Special Court (notified by the Central Government) was to be a court which, immediately before such notification, was the Court of Session or an Additional Sessions Judge (Section 26A(3)). Truly therefore, a Special Court was a court superior to a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), as contemplated prior to 'the 2002 Amendment Act' . It was also the same as the court contemplated under 'the 2002 Amendment Act', namely, the Court of Session.
Therefore, the projection of the jurisdictional claim, as has been raised by the accused herein, is a mere furore, without any serious justification."
20. Lastly, it has been concluded that the forum for trial earlier vested in the Metropolitan Magistrate was retrospectively amended and changed to Court of Sessions. That means, in both these cases, the Hon'ble Apex court has held that the procedural law will operate retrospectively. Therefore, pending cases before the learned Magistrate could have been transferred/ committed by the learned Magistrate, holding that since the forum has changed, they would be tried by the Court of Session.
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Pradesh (Supra), the learned Single Judge of Madhya Pradesh High court, Bench at Jabalpur, had occasion to consider the situation after the decision in Ramesh Kumar Soni's(supra) case and also the effect of doctrine of "prospective overruling" invoked by the Hon'ble Supreme Court. Two questions were considered in the said judgment, which read thus, (1) Which stage of a case may be considered to be an advanced stage of trial ?
(2) What would be the position if a Magistrate, being of the opinion that a case is not in advanced stage of trial, commits it and the Court of Sessions is of the opinion that the case had reached the advanced stage? In such a case, whether the Court of Sessions is empowered to remit the case back to the Court of the Magistrate?"
22. The aforesaid first question has been answered in para 24 of the said judgment, as follows, -
"24. Thus, the trial of a case may be said to be in advanced stage where a material witness/witnesses have been examined on behalf of the prosecution. In this regard, it is not so much the number of the witnesses examined by the prosecution but the nature of the evidence given by such witness/witnesses, is what would have to be seen. In a given case many witnesses might have been examined on behalf of the prosecution but none might have deposed to any essential ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (27) CRI.WP.945/2019 & ORS.
part of the prosecution case, or the evidence of such witnesses might have been of a formal character. In both situations the case may not be said to be at the advanced stage of trial. On the other hand, if only single witness is examined on behalf of the prosecution but that witness unfolds the narrative on which the prosecution is based or deposes to any essential part of the prosecution case, then the witness would come under the category of material witness and the trial would be said to be in advance stage. Either way, one thing is certain that in a case in which only charge is framed but no witness has been examined or only formal witnesses have been examined, cannot be said to be in advance stage of trial."
23. The second question has been answered in para 31 of the said judgment, as follows, -
"31. In aforesaid backdrop, the question being considered shall have to be looked into from a different perspective. Such cases would have been committed by the Magistrate in view of the directions made by the apex Court in Ramesh Kumar Soni's case because the Magistrate was of the opinion that the trial of the case had not reached advanced stage. If the Sessions Judge, for the reasons to be recorded, is of the opinion that the trial had indeed reached advanced stage, it may deal with the matter in the same manner as it would deal with the matter in which it is of the opinion that the case is not triable exclusively by a Court of Sessions. That is to say, it may either try the case itself or remit the case to the Court of Chief Judicial Magistrate for trial in accordance with law. Both ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (28) CRI.WP.945/2019 & ORS.
options are within the scope of the jurisdiction of Sessions Court but Session Court has to exercise this jurisdiction in such a manner as to ensure that the purpose of saving is not frustrated and no prejudice is caused to either party. Thus, there should be no doubt that after receiving the case on committal, the Court of Session has jurisdiction to remit it. "
24. On these touch-stones, it was considered that the Magistrate in that case committed the case to the Court of Sessions, holding that the case is not at advanced stage of trial and, therefore, the learned Additional Sessions Judge was the 'appropriate authority' to deal with the case. The note of this decision is taken only for the purpose that the same High Court had also considered the facts after the decision in Ramesh Kumar Soni's case. No doubt, choice/option has been given to the Magistrate to consider as to what is the advanced stage of trial and then to decide whether to commit the case or not. But, in the present cases, if we consider that some of the cases are at advanced stage of the trial; yet that will not create any vested right in the respective accused to be tried by a particular forum. This is on the basis of the earlier decision of the Hon'ble Apex ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (29) CRI.WP.945/2019 & ORS.
court referred to above.
25. It appears that some of the Magistrates have invoked only Section 209 of Cr.P.C. for committing the case, when the case is part-heard. But in view of the decision in Rama Swamy Gounder (supra), even if certain witness/ witnesses have been examined and at that stage if the Magistrate considers the powers under Section 323 of Cr.P.C. to commit the case to the Court of Session, then, in addition to his powers, under Section 209 of Cr.P.C., he can commit the case to the Court of Session. The requirement for Section 323 of Cr.P.C would be that the Magistrate should consider that the case should be tried by the Court of Session. Merely stating a wrong section or only one section, will not make the order of committal illegal. No doubt, the orders in these cases could have been passed with more elaborate reasons, but they can not be said to be illegal on that count. Same is required to be observed in one of the cases, i.e. in Criminal Writ Petition No.2056/2019. It appears that after Shyamrao Pillare's judgment (supra), the learned Principal District Judge had issued an ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (30) CRI.WP.945/2019 & ORS.
office order for consideration of the Magistrates for committal or transfer of cases to the Court of Session. It has been vehemently submitted on behalf of the petitioners therein that the learned Magistrate has not applied his own mind when the order was passed by him, but it was mechanically passed under the orders of superior. This court does not agree with the said submission. The office order might have been passed by the learned Principal District Judge to bring the said decision delivered in Shyamrao Pillare's case to the notice of the Magistrates. But, then the Magistrate was supposed to apply his own mind. When he found and the facts on record showed that the accused therein was facing trial for the offence punishable under Section 353 of IPC; in view of the Amended Act of 40/2018, the said order of committal appears to have been passed. We cannot consider the said order as illegal.
26. Now, another point that has been canvassed is in respect of de novo trial. In Dwarka Prasad's case (supra), there is no reference to the decision of the Apex court in Bhaskar @ ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (31) CRI.WP.945/2019 & ORS.
Prabhaskar's case (supra). The facts of the case in Bhaskar were definitely different. In that case, initially the case was under Terrorist and Disruptive Activities (Prevention) Act (herein after referred to as TADA). The Hon'ble Apex court considered the position as to what would be the course of trial after abolition of the designated court under TADA. The case was then transferred, i.e. after abolition of the TADA, to the successor judge and in that circumstance, the provisions of Section 326 of Cr.P.C. were considered, which read thus, -
"326 Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.-
(1) Whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in any inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (32) CRI.WP.945/2019 & ORS.
any such witness, and after such further examination, cross-examination and re- examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section(1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325."
27. It is to be noted that the Hon'ble Apex Court has also taken note of the amendment in Section 326 of Cr.P.C. by the Amendment Act of 45/1978. By the said Amendment, the words "Judge or" were also inserted just before the word "Magistrate" and then it is observed, " So from 1978 onwards the applicability of the section was extended to all trial Courts. The earlier position was that a Judge or Magistrate, who heard the evidence alone, could decide the case. Later any successor Magistrate was conferred with the option to act on the evidence recorded by his predecessor Magistrate in the same case. Now that option is ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (33) CRI.WP.945/2019 & ORS.
extended to Judges of all trial Courts also." Further observations are also important, which will be guiding rule for all the trial courts, who would require to deal with the cases in view of Maharashtra Amendment Act of 40/2018 henceforth and also in respect of any other case, which is transferred either under Section 322, or 323 or 325 of Cr.P. C. and, therefore, those observations are reproduced here, as follows, -
"13. For the application of Section 326 of the Code three postulates must be connected together. First is, a Judge should have recorded the evidence in the case either in part or in whole. Next is, the said Judge should have ceased to exercise jurisdiction in that case, and the third is, another Judge should have succeeded him and such successor Judge must have jurisdiction to try the offences concerned. If the above conditions are completed the successor Judge stands empowered to act on the evidence already recorded in the case.
14. The legislative intention is clear from a reading of the section that the words "succeeded by another Judge" must get a wide amplitude. It is for the said purpose that sub- section (2) is incorporated bringing even cases transferred from one Judge to another, within the scope of the Section. The words "such jurisdiction"
in the sub-section (1) are not intended to narrow down the ambit of the provision to Judge who could have ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (34) CRI.WP.945/2019 & ORS.
exercised exactly the same jurisdiction which his predecessor Judge exercised. It is enough that the successor judge has jurisdiction to try the offences sought to be proved against the accused.
15. The archaic concept was that the very same judicial personage who heard and recorded the evidence must decide the case. That concept was in vogue for a long time. But over the years it was revealed in practice that fossilisation of the said concept, instead of fostering the administration of criminal justice, was doing the reverse. Very occasionally judicial officer of one court was changed and was replaced by another. As evidence had to be recorded afresh by the new officer under the old system, witnesses who were already examined in the cases at the cost of considerable strain and expenses - not only to them but to the exchequer - were re-summoned and re- examined. The litigation cost thereby inflicted on the parties used to soar up. The process would have to be repeated over again if such next judicial personage also was changed. Eventually it was learnt that the object sought to be achieved by such repetitions, when compared with the enormous cost and trouble, was not of much utility. Hence the legislature wanted to discontinue the aforesaid ante-diluvian practice and decided to afford option to the successor judicial officer. Legislature conferred such option only to the magistrates at the first instance and at the same time empowered them to re- examine the witnesses already examined if they considered such a course necessary for the interest of justice. As the new experiment showed positive requisite towards fostering the cause of criminal justice the Law Commission ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (35) CRI.WP.945/2019 & ORS.
recommended that such option should advisedly be extended to judges of all other trial courts also."
28. Therefore, taking into consideration all these observations, it is not necessary that in all the cases the successor Judge should record the evidence de novo, when the case is committed/transferred in pursuance to Sections 322 or 323 and 325 of Cr.P.C.
29. No illegality or error can be said to have committed by any of the courts below in the impugned orders. There could have been better orders with elaborate reasons about their opinion that the case needs to be tried by Court of Sessions. However, the orders do not become illegal in absence of those sentences. It will have to held that all those orders have been passed by the learned Magistrate using their powers under Section 323 of Cr.P.C. There is no merit in the present criminal writ petitions and hence they are hereby dismissed. Pending criminal application, if any, stands disposed of.
30. In view of the dismissal of the writ ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 ::: (36) CRI.WP.945/2019 & ORS.
petitions, the stay granted to the proceedings before the trial court in view of order dated 10th April, 2019 and 14.1.2020, stands vacated.
(SMT. VIBHA KANKANWADI,J.) BDV ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 18:55:38 :::