Patna High Court
Ram Beyas Singh And Ors. vs The State Of Bihar on 6 May, 1976
Equivalent citations: 1977CRILJ28
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. This appeal has been placed before a Full Bench at, the admission stage to decide the question of maintainability of the appeal before this Court. There are five appellants, who have challenged the legality of the order of conviction and sentence passed against them by the First Assistant Sessions Judge, Aurangabad, by his judgment, dated the 27th January, 1976. Appellant No, 1 has been convicted under Section 307 of the Indian Penal Code (hereinafter referred to as the 'Code') and sentenced to undergo rigorous imprisonment for seven years. The remaining appellants have been convicted under Section 307, read with Section 149, of the Code and have been sentenced to undergo rigorous imprisonment for four years each. Appellant No. 1 has been further convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years under that count. Appellants 1 and 3 to 5 have been further convicted under Section 148 of the Code and sentenced to undergo rigorous imprisonment for nine months each. Appellant No. 2 has been convicted also under Section 147 of the Code and sentenced to undergo rigorous imprisonment for six months. The sentences have been directed to run concurrently.
2. The Stamp Reporter raised in objection in respect of the maintainability of the appeal before this Court. Under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'New Code'), an appeal lies to this Court against a judgment of conviction, if the trial is held by a Sessions Judge or an Additional Sessions Judge, or against an order of conviction passed by any other court "in which a sentence of imprisonment for more than seven years has been passed". As the sentence passed against appellant No. 1 is only for seven years, the appeal should have been filed before the Court of Session under Section 374(3) of the New Code.
3. This appeal was first listed for admission before a learned single Judge of this Court, along with the aforesaid stamp report, who, by his order, dated the 9th March, 1976, referred the matter to a Division Bench for decision on the question of the maintainability of the appeal before this Court, in view of the fact that there were conflicting views on this point. The appeal was then placed before a Bench of this Court, which, after hearing the learned Counsel appearing for the parties, passed an order saying that the important questions involved in the appeal were of far-reaching effect, and, as such, it was a fit case which should be placed before a Full Bench.
4. Learned Counsel for the appellants, in support of his stand that the appeal is maintainable before this Court, has, however, not questioned the position that, if the provisions of the New Code are applicable, this appeal ought to have been filed before the Sessions Judge, Gaya. But, according to him, the provisions of the New Code are not applicable to the appeal in question and it has to be entertained and disposed of in accordance with the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Old Code'). According to learned Counsel, the right of appeal is a vested right which accrues to an accused person no sooner a criminal proceeding is initiated against him, and that right is not affected by repeal of an Act or by enactment of a new Code; that right is all the more preserved where the trial was proceeded and concluded in accordance with the Old Code, although on the date of the conviction the Old Code had been repealed. If this argument is to be accepted, the appeal is maintainable under Section 408(b) of the Old Code. Under that section any person convicted and sentenced to imprisonment for a term exceeding four years could have filed an appeal to this Court.
5. The fact that on the date the New Code came into force, the trial was pending is not in dispute. In view of Section 484(2) of the New Code, so far as the question of applicability of the Old Code at the stage of trial is concerned, there is no controversy. The question at which the parties are at issue is as to whether in such a situation an appeal is to be filed in accordance with the provisions of the Old Code or the New Code. Section 484 of the New Code, which has repealed the Old Code and has a saving clause, is relevant in this context. It is advisable to reproduce the relevant portion of Section 484 of the New Code.
484. (1) The Code of Criminal Procedure, 1898 is hereby repealed.
(2) Notwithstanding such repeal,-
(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held, or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement (hereinafter referred to as the Old Code), as if this Code had not come into force:
Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;
(b) all notifications published, pro-claimation issued, powers conferred, forms prescribed, local jurisdiction defined, sentences passed and orders, rules and appointments, not being appointments, as Special Magistrate, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, denned, passed or made under the corresponding provisions of this Code:
* * * * Clause (a) of Sub-section (2) of Section 484 says in explicit and unmistakable terms that, notwithstanding the repeal of the Old Code, any appeal, trial, inquiry or investigation, which was pending on the date the New Code came into force, shall be disposed of and continued in accordance with the provisions of the Old Code, as if the New Code had not come into force. There is nothing specific in respect of appeal or revision arising out of such trials.
6. According to learned Counsel for the appellants, although Clause (a) of Sub-section (2) of Section 484 of the New Code, in terms, governs pending appeal, application, trial, inquiry or investigetion, yet, as the right to file an appeal is a vested right, any repeal of the old enactment cannot destroy or modify the said right in any manner whatsoever and, as such, even in absence of a specific provision appeals as arising out of such trials, which were pending on the date the New Code came into force, would be filed and disposed of in accordance with the Old Code. In support of his contention, learned Counsel has placed reliance on the Judgment of the Supreme Court in Gari-kapati Veeraya v. N. Subbiah Choudhary , In that case a suit had been filed before the Constitution came into force. Earlier, Rs. 10,000/- was the valuation fixed for an appeal which was maintainable in the Federal Court. Subsequently, when the Constitution came into force, the valuation necessary for appeal to the Supreme Court was raised to Rs. 20,000/-. In that context a question arose as to whether the right of appeal to the Supreme Court, arising out of a suit which had been filed prior to the coming into force of the Constitution, could be taken away. It was held:
(23) From the decisions cited above, the following principles clearly emerge:
(i) That the legal pursuit of a remedy suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carried with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment, and not otherwise," Ultimately, it was held that the petitioner in that case was entitled to come up in appeal to the Supreme Court, although the requirement of valuation under Article 133 of the Constitution was not fulfilled. Learned Counsel appearing for the appellants has also referred in this connection to the case of Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni , where a question had arisen regarding the continuance of the proceedings under Section 153-C of the Companies Act of 1913, even after the repeal thereof and enactment of the Companies Act, 1956. While the application was pending before the District Judge, who was the authority constituted under the 1913 Act, the new Act came into force. It was held that, although the provisions of the 1956 Act did not empower the District Courts to deal with applications under Section 153-C of the 1913 Act, yet, as there was nothing in the 1956 Act to show that the right to dispose of such applications which were pending had been destroyed, the application was to be heard and disposed of by the District Judge concerned. The same view was expressed by the Supreme Court in the case of Jayantilal Amratlal v. Union of India in respect of an action taken under Rule 126 of the Defence of India Rules, 1962, which was held to be continuing even after passing of the Gold (Control) Act, 1968. This Court in the cases of Managing Committee of T K. Ghose Academy v. State of Bihar, 1974 BBCJ 15 : 1974 Lab 1C 632 (Pat) and Girdhar Das Anandji v. Jivraj Madhavji Patel 1971 Pat LJR 66 took a similar view. In the case of V.P. Chakravarthi (AIR 1965 Mad 166) (FB), a Full Bench of the Madras High Court held that, in spite of the repeal of the Ear Councils Act, 1926 by the Advocates Act, 1961, the High Court could exercise the power of review conferred on it by Section 12 of the Bar Councils Act, 1926. In all these cases, in absence of a saving clause, Section 6 of the General Clauses Act, 1897, or parallel provisions of the General Clauses Act of the State concerned, was applied. In view of the aforesaid decisions, it cannot be disputed that the right to appeal is a vested right which accrues to a person who is a party to a suit since the date of the filing of the suit. Such a right is generally preserved under the Act which repeals the old Act, under Its saving clause. Even if it is not so done, Section 6 of the General Clauses Act, 1897 comes to the rescue of the person concerned and his right to continue the legal proceeding and to enforce any remedy, including filing of an appeal, is preserved, in spite of the fact that the Act in question has been repealed.
7. For the purposes of the present case, I shall assume that even an accused person has a vested right of appeal which accrues to him since the initiation of the criminal proceeding against him. But, even then, it is always open to the legislature to take away any such right by a subsequent enactment, if there is an express provision to that effect or when such an intention can be inferred by necessary intendment. In the case reported in AIR 1957 SC 540 itself it was pointed out by the Supreme Court that any such right of appeal can be taken away by the later enactment "if it so provides expressly or by necessary intendment". None of the decisions referred to above has laid down that on no account this right can be interfered with. From those very judgments it will appear that only after recording a finding that there was no provision taking away the right to continue the proceeding, either expressly or by necessary intendment, the provisions of Section 6 of the General Clauses Act, 1897 were applied. Apart from that, the other aspect of the matter is that a person may have a vested right of appeal, but the said right is not co-extensive with the forum of the appeal. The subsequent enactment may provide an appeal even in respect of such pending actions, but the forum may be different. In this connection a reference may be made to a judgment of the Supreme Court in the Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukkor etc. . The State of Mysore passed The Mysore Administration of Evacuee Property (Emergency) Act 1949 (hereinafter referred to as the 'first Mysore Act'). It provides for appointment of a Custodian of Evacuee Property. Section 30 provided for an appeal to the High Court against an order passed under Section 8 by the Custodian. That Act was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, 1949 (hereinafter referred to as the 'second Mysore Act'), and, after coming into force of the Second Mysore Act, the first Mysore Act ceased to have effect. Section 53(2) of the second Mysore Act provided that anything done or any action taken in exercise of any power conferred by the first Mysore Act shall be deemed to have been done or taken in exercise of the power conferred by the second Mysore Act. The second Mysore Act also provided that any penalty incurred or proceeding commenced under the first Mysore Act shall be deemed to be penalty incurred or proceeding commenced under the second Mysore Act. In the second Mysore Act, however, there was a change in the forum of appeal; instead of to the High Court, the appeal lay to the Custodian General from an order passed under Section 5 of the second Mysore Act. A question arose as to whether, after the repeal of the first Mysore Act, an appeal would lie to the High Court from an order passed in a proceeding which has been initiated under the first Mysore Act, It was held that by Section 53(2) of the second Mysore Act, the legislature intended that subsequent actions must be followed in accordance with the second Mysore Act, even in respect of proceedings which had been initiated under the first Mysore Act. In that context, it was observed as follows:
This is, therefore, in our view, a case where, by necessary intendment (though not by express provision), the legislature intended that the provision as to appeals provided by subsequent legislation should supersede the provision as to appeals under the first Mysore Act. We may point out that this is not a case where the right of appeal disappears altogether; all that happens is that where the order is passed by the Custodian the appeal lies to the Custodian General, instead of to the High Court. The legislature has provided another forum where the appeal will lie and in the circumstances it must be held that by necessary intendment the legislature intended that forum alone to be the forum where the appeal will lie and not the forum under the first Mysore Act.
In that case also it was held that, although the right of appeal may be a substantive right which was governed by the law prevailing at the time of the commencement of the suit, nonetheless, such a right could be taken away expressly or by necessary intendment.
8. If Section 484 of the New Code had only one sub-section saying about the repeal of the Old Code, the pending proceedings, including an appeal from orders passed after conclusion of the trial, would have been governed by the provisions of the Old Code, in view of Section 6 of the General Clauses Act. But there is a specific provision under Sub-section (2) of Section 484 regarding pending trials, appeals, inquiries etc. It has a non obstante clause saying that, notwithstanding the repeal of the Old Code, any appeal, application, trial, inquiry or investigation pending on the day the New Code came into force shall be disposed of and continued in accordance with the provisions of the Old Code as if the New Code had not come into force. In view of Clause (a) of Sub-section (2), the provisions of the Old Code are to apply to pending proceedings at whatever stage they might be. There is nothing is that clause from which it can be inferred that the provisions of the Old Code are to apply even if appeals or revisions are filed after the disposal of those pending trials or appeals. As such, it can be safely said that the intention of Parliament was that only pending proceedings should be continued and disposed of in accordance with the Old Code, whereas appeals and revisions arising out of such proceedings or trials should be filed and disposed of in accordance with the new Code. My this view gets support! from Clause (b) of Sub-section (2) of Section 484 which says that "... sentences passed and orders... made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been ... passed or made under the. corresponding provisions of this Code", This is a deeming clause, the effect whereof will be that any sentence or order passed in the trials under the Old Code and which were in force would be deemed to have been passed under the New Code. In my opinion, this clause is very similar to Section 53(2) of the second Mysore Act . The role of a deeming clause need not be emphasised and it will suffice to refer to the well known case of East and Dwellings Co. Ltd. v. Finsbury Borough Council, (1952 AC 109 at page 132), where it was pointed out by Lord Asquith that, if a statute requires to treat an imaginary state of affairs as real, then, unless prohibited from doing so, one has to imagine as real the consequences and incidents which must have inevitably flowed from or accompanied it, if the affairs had really existed. In that context it was observed as follows:
The statute says that you must imagine a certain state of affairs; it does not say that, having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
As such, if Parliament commanded that orders of conviction and sentence which had been passed before the coming into force of the New Code are to be deemed to have been passed under the New Code, then the logical consequence is that appeals against such orders and sentences have to be filed and entertained in accordance with the provisions of the New Code. This aspect of the matter has also been dealt with by the Supreme Court in the case of Mr. Boucher Pierre Andre' v. Superintendent, Central Jail, Tihar, New Delhi , where a question arose as to whether the benefit of Section 428 of the New Code could be availed of even by a prisoner who had been convicted and sentenced under the Old Code and was undergoing such sentence. After referring to clause (b) of Section 484(2) of the New Code, the Supreme Court held that even those convictions and sentences would be deemed to have been passed under the New Code, and, as such, the period undergone as under-trial prisoner would be taken into account for reckoning the total period of imprisonment passed against the accused. In my opinion, in view of Clause (b) of Sub-section (2) of Section 484 of the New Code, if the order of conviction and sentence has been passed against an accused person in accordance with the provisions of the Old Code, prior to the coming into force of the New Code, then appeals against such orders, after coming into force of the New Code, have to be filed in accordance with the provisions of the new Code.
9. Learned Counsel for the appellants, however, urged that in this Clause (b) there is no mention about conviction. In my opinion, the words "sentences passed and orders" will cover all orders of conviction passed after trials. Section 372 of the New Code itself says that "No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code". Appeals are filed against the orders of a Criminal Court convicting the accused persons. Apart from that, the Supreme Court in the case reported in AIR 1975 SC 164 : 1975 Cri LJ 182, above referred to, has held that a judgment of conviction which is in force will be deemed to be an order within the meaning of Clause (b) of Section 484(2) to attract the provisions of Section 428.
10. No doubt, Clause (b) of subsection (2) of Section 484 of the New Code, in terms, will not apply to the present appeal, because the order of conviction in the instant case has been passed after the New Code had come into force. But, if appeals against orders of conviction passed just before the coming into force of the New Code are to be filed in accordance with the provisions of the New Code, in view of Clause (b) of Sub-section (2) of Section 484, it will lead to an anomalous position, if it is held that appeals in respect of orders of conviction passed after the coming into force of the New Code, in trials which were pending on the date the New Code came in force have to be filed in accordance with the provisions of the Old Code. The intention of Parliament appears to be clear in changing the forum of such appeals, to shed the work load of the High Court. Under the Old Code, a Sessions Judge could hear appeals against sentences only up to four years. Now he can hear appeals in respect of sentences up to seven years. It is not expected that Parliament intended that this provision should be given effect to only after several years when new cases, after coming into force of the New Code, are taken up for trial and appeals are filed after orders of conviction are passed in such cases. In my opinion, the right of appeal of the appellants has not been taken away in any manner; the forum, however, has been changed from the High Court to the Sessions Judge. This, in my opinion, is always permissible and it does not affect any vested right of the appellants. In the case of the Custodian of Evacuee Property , the Supreme Court negatived such an argument. Reference in this connection may be made to the judgments in Rao Shiv Bahadur Singh v. State of Vind. Pra. and Union of India v. Sukumar Pyne , where it was pointed out that a person accused of the commission of an offence has no fundamental right to a trial by a particular court or by a particular procedure. By changing the forum of appeal, in my view, only the procedure of filing the appeal has been changed.
11. Learned Counsel for the appellants, in support of his contention that even in such a situation the vested right of the appellants is affected, has placed reliance on decisions of Madhya Pradesh High Court in Dhruvanath Singh v. Shivanaresh Sharma, (1975 Cri LJ 1710) (M.P.), of Orissa High Court in Kanika Eewa v. State, (1976 Cri LJ 418) (Orifisa) and of the Gujarat High Court in Hiralal Nansa Bhavsar v. State of Gujarat, (1976 Cri LJ 84) (Guj). In the Madhya Pradesh case it was held that the right of appeal or even that of revision in respect of trials which were pending on the date the New Code came into force would be governed by the Old Code, saying that the legislature had made a specific provision that all pending cases would be governed by the Old Code. The learned Judges were, perhaps, thinking of Clause (a) of Sub-section (2) of Section 484 of the New Code. I have already pointed out that that clause is applicable only to the pending trials, appeals, revisions etc., that has nothing to do with appeals which are to be filed against judgments in such trials which were then pending. With due respect, I find myself unable to agree with the view expressed in the said judgment. In the Orissa case, after referring to the aforesaid judgment of the Supreme Court reported in AIR 1957 SC 540 it was observed that the right of appeal being a substantive right in criminal cases "exists from the date the cognizance was taken, and not on the date judgment was pronounced." According to the learned Judges, such appeal will be governed by the Old Code, because the cognizance had been taken under the Old Code, In my opinion, even if any such right exists, by no stretch of imagination, it can relate back to the date of taking cognizance. Cognizance is taken under Section 190 of the Old Code. The accused does not come in the picture till the Magistrate decides that there is sufficient ground for proceeding against him and passes an order for issuance of summons under Section 204. There is no question of any vested right being available to the accused even prior to the issuance of the processes. He cannot take part in an inquiry under Section 202 of the Code, but, if he so desires, can merely watch it (vide Chandradeo Singh v. Prokash Chandra Bose . So far as the Gujarat Full Bench case is concerned, the judgment rests on the aforesaid decision reported in AIR 1957 SC 540, saying that the right of appeal is a vested right and. in the opinion of the learned Judges there was no provision in the New Code from which it could be inferred that this right had been expressly or by necessary intendment taken away. In that case it was observed as follows:
The forum to file the appeal is also thus determined as soon as the action is instituted. Till the case is instituted no litigant has any right to the forum in which the case can be instituted. In a criminal case this right of appeal and the right to file the appeal in the forum prescribed by law would precipitate at the date when the Court takes cognizance of an offence against the accused.
In my opinion, the aforesaid observation runs counter to the judgment of the Supreme Court in The Custodian of Evacuee Property, (AIR 1961 SC 1087) which has not been taken note of. Similarly, in my view, it is not correct to say that any such right accrues to an accused person since the date when the Court takes cognizance of the offence. I have already pointed out that cognizance is taken at a stage much prior to the stage when the Court concerned decides to proceed against the accused person. Regarding the role of Clause (b) of Sub-section (2) of Section 484 of the New Code, it has been observed in the said case that it is merely transitory provision, which does not confer any right, but provides for continuance of notifications, orders, rules, appointments made sentences passed etc. According to the learned Judges, Clause (b) of Sub-section (2) of Section 484 is similar to Section 24 of the General Clauses Act. I am unable to persuade myself to agree with this view. Section 24 of the General Clauses Act is applicable only to statutory and administrative orders, notifications and rules etc., whereas the words "sentences passed and orders made" used in Clause (b) include judicial orders as well. My this view is supported by the decision of the Supreme Court in the case reported in AIR 1975 SC 164 : 1975 Cri LJ 182, where, by applying Clause (b) to an order of conviction, which was in force, the accused was allowed the benefit of Section 428 of the New Code. It appears that the decision by the learned Judges was given prior to the aforesaid decisions of the Supreme Court. Once it is held that Clause (b) is applicable even to judicial orders passed after trial, by necessary implication, it has to be held that appeals against such orders are to be filed in accordance with the provisions of the New Code, because those orders themselves are to be deemed to have been passed under the New Code. In my opinion, the right of the appellants in the instant case to file the appeal is not affected in any manner, except that the forum of the appeal has been changed. This will not amount to taking away of the right of appeal itself.
12. For the foregoing reasons, in my opinion, the present appeal filed by the appellants in this Court is not maintainable and they ought to have filed the appeal in accordance with the provisions of Section 374(3) of the New Code before the Sessions Judge concerned. The appeal is, accordingly, held to be not maintainable in this Court and I direct that the memorandum of appeal be returned to the learned Counsel appearing for the appellants to be filed before the proper Court. It is apparent that the appeal has since become barred by limitation having remained pending before this Court for some months. It is expected that, if an application under Section 5 of the Limitation Act is filed by the appellants, the learned Sessions Judge concerned, on a consideration of the materials on record, will condone the delay. If the appeal is filed and the delay is condoned and a prayer for bail is made on behalf of the appellants, the learned Sessions Judge will take into account the fact that the appellants had been directed to be released on bail by this Court pending the decision about the maintainability of the appeal in this Court, and till then the appellants shall continue on the bail granted by this Court.
Shambhu Prasad Singh, J.
13. I agree.
S.K. Choudhuri. J.
14. I agree.