Madhya Pradesh High Court
Chandrashekhan Pathak vs Baldev Thakur on 27 September, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 27th OF SEPTEMBER, 2024
CRIMINAL REVISION No. 60 of 2020
CHANDRASHEKHAR PATHAK
Versus
BALDEV THAKUR
Appearance:
Shri Anant Kumar Bansal - learned Counsel for revision petitioner/ accused.
Shri Anvesh Jain, learned Counsel for respondent/ complainant.
ORDER
This Criminal Revision under Section 397 read with Section 401 of Cr.P.C has been filed against the order dated 19 th December, 2019 passed by Additional Sessions Judge, Gwalior (M.P.) in Sessions Trial No.192 of 2016 and the order dated 6 th June, 2016 passed in Criminal Case No.4605 of 2006 by Judicial Magistrate First Class, Gwalior, whereby the application filed by revision petitioner for remitting the matter to the Court of JMFC for trial, has been rejected.
(2) Facts giving rise to present revision, in short, are that respondent/complainant Baldev Thakur had filed a private complaint against petitioner- accused Chandrashekhar Pathak and co-accused Ranjan Pathak (father of revision petitioner) on 24-01-2003 vide Annexure P-3 before the Court of Chief Judicial Magistrate, Gwalior for offence punishable under Sections 420, 424, 467, 468, 471 and 120-B of IPC. Thereafter, statements of complainant- Baldev Thakur and his witnesses Anil, Naresh Thakur and Sandeep Mishra were recorded under Sections 200 and 202 of CrPC on 22nd February, 2003, 22nd of April, 2003 and 25th of July, 2003 respectively vide Annexure P-4 to Annexure P-7. Before framing of charges, statement of complainant Baldev Thakur was also recorded on 13-02-2009 vide Annexure P-8. No evidence was found by the Court of JMFC, Gwalior for taking cognizance against co-
2accused Ranjan Pathak but sufficient evidence was prima facie found available against petitioner- accused for taking cognizance against him vide order dated 17th of July, 2006. The Court of JMFC Vide order dated 6 th of June, 2016 (Annexure P-9), committed the matter to the Sessions Court. When the case was listed before the Sessions Judge, Gwalior on 27 th of June, 2016, on the same day, petitioner had filed an application before the Sessions Judge for cancellation of the order dated 06 th of June, 2016 passed by Judicial Magistrate First Class, with a prayer for remitting the matter to the Court of JMFC for trial. The Sessions Court vide impugned order dated 19th of December, 2019 dismissed the application of revision petitioner on the ground that the Sessions Court has the jurisdiction to try the offence punishable under Sections 420, 467, 468, 471 of IPC and therefore, the matter cannot be remitted to the Court of Magistrate for trial.
(3) Challenging the impugned order dated 19 th of December, 2019, it is submitted by Counsel for the petitioner that the private complaint was filed by respondent- complainant on 24-01-2003. Even after taking cognizance by the Court of JMFC on 17th of July, 2006, no application was submitted on behalf of the complainant for transferring the case to the Sessions Court. As per the the amended provision which came into force from 22 nd February, 2008 in the Schedule-I of the Criminal Procedure Code, the jurisdiction lies with the Sessions Court to try the offences punishable under Sections 420, 467, 468, 471 of IPC, which came into effect from 22-02-2008 and the said amendment does not have retrospective effect. For this reason, the Sessions Court does not have the jurisdiction to hear the case and it is just and proper for the Sessions Court to remit the matter to the Court of Magistrate for trial. The learned Sessions Court has committed an error in dismissing the application filed by revision petitioner for remitting the matter to the Court of JMFC. In support of contentions, learned Counsel has relied on the decisions of the Hon'ble Apex Court in the case of Rakesh Kumar Soni vs. State of M.P. 2013 (2) JLJ 207 and decisions of coordinate Bench of this Court in the matter of Rakesh Kumar Dubey vs. State of MP and Another 2014 (2) MPLJ (Cri) 265, Rayees Ahmed vs. State (2016) 2 MPLJ (Cri) 654 and In Reference vs. State of MP 2016 (1) MPLJ (Cri.) 617 as 3 well as unreported judgment passed in the case of Aziz Mohd. Vs. State of MP (MCRC No.23085 of 2018, decided on 5 th of December, 2018). In view of above, learned Counsel for revision petitioner prays for setting aside the impugned order dated 19th of December, 2019 rejecting his application filed on 27 th of June, 2016 for remitting the matter to the Court of JMFC for trial.
(4) Learned Counsel for respondent- complainant supports the impugned order and prays for dismissal of this revision.
(5) Heard learned Counsel for parties and perused the impugned orders as well as annexed documents available on record.
(6) It is well-settled principle of law that the statutes dealing merely with matters of procedure are presumed to be retrospective unless such construction is textually inadmissible. Attention is invited to the law laid down by the Hon'ble Apex Court in the case of Jose Da Costa and Another Vs. Bascora Sadasiva Sinai Narcornim as reported in AIR 1975 SC 1843 and Gurbachan Singh Vs. Satpal Singh as reported in AIR 1990 SC 209. In this regard, LORD DENNING in the case of Blyath Vs. Blyth (1966) 1 All.E.R.524 has noted that "the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the courts give to evidence." (7) In Interpretation of Statutes by MAXWELL, 11 th Edition, Page 216, it has been mentioned that "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 that to proceed according to the altered mode."This has been relied even in the case of Gurbachan Singh (supra).
(8) In the case of Shyam Sunder Vs. Ram Kumar as reported in AIR 2001 SC 2472, it has been held that ''law relating to forum and limitation is procedural in nature whereas law relating to right of action and right of appeal even though 4 remedial is substantive in nature; that 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; that a statute which not only changes the procedure but also creates new rights and obligations shall be construed to be prospective, unless otherwise provided either expressly or by necessary implication." Thus, the onus is on the petitioner to show that the procedural amendment will impose new duties in respect of transaction already accomplished and also creates new rights and obligations. (9) It is also the law that the proceedings or trials completed before the change of law in procedure are not reopened for applying the new procedure as has been laid down in the case of Nani Gopal Mitra Vs. State of Bihar as reported in AIR 1970 SC 1636 but in the present case, the trial was not completed and since trial was not completed, committal of the case to the Sessions court in the terms of Amendment will not render it illegal, as has been held by the Hon'ble Apex Court in the case of Ra-kesh Kumar Soni (supra) holding that Madhya Pradesh Amendment Act 2007 amending the provisions of Criminal Procedure Code have retrospective effect. (10) In view of such legal position, this Court is of the opinion that there is no illegality, shortcoming or imperfection in the impugned order dismissing the application of the revision petitioner for remitting the matter to the Court of JMFC for trial, merely because learned JMFC had taken cognizance against the accused in 2006 prior to Amendment in the year 2007, and the same does not call for any interference. Thus, the revision fails and is hereby dismissed.
(HIRDESH ) JUDGE MKB MAHEND Digitally signed by MAHENDRA BARIK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=8c6d4d6122d7ee987e457a3bec5922cacbc050c998 RA BARIK 981397a35d9758a2b55074, postalCode=474001, st=Madhya Pradesh, serialNumber=AB90F893988F10D718DA01F8065D87F25DD C9B6C8C3FF0E5E280DD36D476F6BA, cn=MAHENDRA BARIK Date: 2024.10.04 22:13:37 +05'30'