Madhya Pradesh High Court
Dwarka Prasad vs The State Of Madhya Pradesh on 30 March, 2016
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
M.Cr.C.No.11246/2014
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Dwarka Prasad
Vs.
State of Madhya Pradesh
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Present:- Hon'ble Shri Justice C.V. Sirpurkar
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Shri Pramod Kumar Thakre, counsel for the
petitioner/accused.
Shri Pramod Kumar Pandey, Government Advocate for the
respondent State.
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ORDER
(30.03.2016)
1. This miscellaneous criminal case has been instituted on an application under Section 482 of the Cr.P.C. filed on behalf of the petitioner/accused Dwarka Prasad. It is directed against the order dated 22.04.2013 passed by the J.M.F.C., Narsinghpur, in Criminal case No.2139/2007; whereby, in the light of provisions of the Criminal Procedure Code (Madhya Pradesh Amendment) Act, 2007, the application filed on behalf of prosecution, was allowed and the case was committed for trial to the Court of Sessions.
2. The facts necessary for disposal of this miscellaneous criminal case may be summarized as hereunder: A first information report under Sections 409, 468, 471, 477-A and 109 of the IPC was registered against the applicant/accused Dwarka Prasad and other co-accused persons by P.S. Narsinghpur, District-Narsinghpur, on 17.09.1998. Thereafter, a final report under aforesaid offences was filed before the Court of J.M.F.C., Narsinghpur on 17.12.1998., whereon, a Criminal case No.1369/1998 was registered in the Court of J.M.F.C., Narsinghpur. On 14.12.2001, learned Magistrate framed charges against the accused Dwarka Prasad and other co-accused persons under aforesaid offences. Thereafter, the case was posted for recording of evidence. Till 22.04.2013, statement of three witnesses namely Manoj Kumar Sinha, Assistant Registrar, Cooperative Society, Narsinghpur, Injan Singh, Society Manager and Shri Madhusudhan Sonwe, Deputy Registrar, Cooperative Society, Balaghat, were recorded.
3. Thereafter, an application was moved by the prosecution submitting that in view of Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007, the offence under Sections 467, 468, 471 and 409 were made triable by the Court of Sessions; therefore, the case be committed for trial to the Court of Sessions. Learned Magistrate observed that the Supreme Court in the case of Ramesh Kumar Soni Vs. State of M.P., 2013 Cr.L.J. 1738 (SC) had prospectively overruled the judgment passed by a Full Bench of Mahdya Pradesh High Court in the case of In Re Sessions Judge Jabalpur and the Additional Sessions Judge Indore reported in 2008 (3) MPLJ 311 and held that where a trial before the Magistrate has not been concluded or where the trial has not reached the advance stage, such case should be committed to the Court of Sessions for trial. Learned Magistrate further held that in the instant case, the trial had neither been disposed of nor had reached the advanced stage; therefore, the principles laid down in the case of Ramesh Kumar Soni (supra) applied to the case. In the result, the case was committed to the Court of Sessions for trial. The case was registered as S.T.No.151/2013 and is pending in the Court of Second Additional Sessions Judge, Narsinghpur. The certified copies of order-sheets recorded in Session Trial No.151/2013 reveal that a fresh charge has been framed by the learned Additional Sessions Judge but no witnesses had been examined till 15.04.2015.
4. Challenging the impugned order committing the case for trial to the Court of Sessions, learned counsel for the petitioner/accused has submitted that the learned Magistrate had misinterpreted the principles laid down by the Apex Court in the case of Ramesh Kumar Soni (Supra) and has erroneously committed the case for trial to the Court of Sessions, which has caused immense prejudice to the petitioner/accused, who is facing trial for past 18 years. Learned counsel for the petitioner accused has also invited attention of the Court to the judgment dated 06.01.2014 passed by the Co-ordinate Bench of this Court in the case of Niraj Kumar Choukse vs State of Madhya Pradesh, Cr.R.No.2163/2013 wherein, under the similar circumstances the impugned order was set-aside and the matter was remitted back to the Additional Session Judge for reconsideration in the light of judgment passed by the Apex Court in the case of Ramesh Kumar Soni (supra) with a direction that if it was found that the matter has been committed after recording of statements of majority of witnesses in the advance stage of trial, than the directions given by the Supreme Court with regard to pending cases shall be followed and the matter shall be remitted back to the J.M.F.C. for proceedings with the trial.
5. In the opinion of this Court, the matter raises many important questions of law which need to be addressed and answered with adequate certainty.
6. The Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007, came into force with effect from 22nd February 2008. The amendment interalia changed the forum for the trial of offences punishable under sections 317, 318, 326, 363, 363-A, 365, 377, 392, .393, 394, 409, 435, 466, 467, 468, 471, 472, 473, 475, 476, 477 and 477A, from that of a Court of Magistrate of First Class to that of a Court of Sessions. The portions of the amendment, relevant for the purpose of this case are herein below reproduced:
âAn 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:
Short title- This Act may be called the Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007.
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 Principle Act), shall in its application to the State of Madhya Pradesh, be amended in the manner hereinafter provided.
Amendment of Section 167 - *
4. Amendment of the First Schedule - In the First Schedule to the Principle Act, under the heading âI-
Offences under the Indian Penal Code in column 6 against section 317, 318, 326, 363, 363-A, 365, 377, 392, .393, 394, 409, 435, 466, 467, 468, 471, 472, 473, 475, 476, 477 and 477A, for the words âMagistrate of First Classâ wherever they occur, the words âCourt of Sessionsâ shall be substituted.â
7. The Amendment received assent of the President on 14th February, 2008 and was published in Madhya Pradesh Gazette (Extra Ordinary) on 22nd February, 2008.
8. No sooner aforesaid amendment came into force on 22nd February 2008; than a question arose as to whether the same is prospective and will be applicable only to offences committed after that date or would be retrospective and also govern the offences committed before that date and which were either being investigated or final report wherein had been filed and the case was pending before the Magistrate for being committed to the Court of Sessions?
9. In this scenario, the Sessions Judge, Jabalpur, made a reference to the High Court under section 395 of the Code of Criminal Procedure; whereon, 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, reported in 2008 (3) MPLJ 311, 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 it was retrospective and even the cases that were pending on the date on which the amendment came into force, shall be affected and shall have to be committed to the Court of Sessions for trial. The Court further directed that all such cases as were pending before the Judicial Magistrate First Class on the date of amendment and had subsequently been committed to the Court of Sessions, shall be remitted back to the Judicial Magistrate First Class in accordance with law.
10. Relaying upon the decision of the full bench, one Ramesh Kumar Soni, accused in Crime No 129 of 2007, for commission of offences punishable u./ss. 408, 420, 467, 468 and 470 of the I.P.C., registered on 18.05.2007 at Police Station Bhedaghat, Jabalpur, claimed to be tried before the court of Judicial Magistrate First Class and filed an application before the Sessions Court for remitting the case back to a Judicial Magistrate for trail.
11. After unsuccessful challenge before the Sessions Court Jabalpur and High Court of Madhya Pradesh, accused Ramesh Kumar Soni preferred an appeal before the Apex Court. Relying upon the principles laid down by the apex Court in the cases of Jamuna Singh and Ors. v. Bahdai Shah, AIR 1964 SC 1541, Devrapally Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors. (1976) 3 SCC 252 and Kamlapati Trivedi v. State of West Bengal (1980) 2 SCC 91, the Supreme Court observed that a case is said to be instituted only when the Magistrate takes cognizance thereof on filing of charge sheet.
12. Referring to the law laid down in the cases of New India Insurance Company Ltd. v. Smt. Shanti Misra, Adult (1975) 2 SCC 840, Hitendra Vishun Thakur and Ors. etc V. State of Maharashtra and Ors. (1994) 4 SCC 602, the Apex Court reiterated the legal position with regard to retrospective operation of a statute in the following language:
â26 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.â
13. Consequently, the Supreme Court held that no charge- sheet had been filed against the appellant Ramesh Kumar and the Magistrate had not taken cognizance of any offence against him on the date of amendment; therefore, his case was covered by the amendment and it was rightly committed to the Court of Session for trial. However, on the strength of aforesaid decisions it was held that an amendment changing the forum of trial was procedural in nature and in the absence of any indication to the contrary in the amending act, was applicable retrospectively. As a result it was further held that the Full Bench of the High Court had erred in holding that the amendment did not affect the cases that had been instituted prior to coming into force of the amending act and were pending on that date. The amendment being retrospective in nature, was applicable to all those cases that were pending before the Magistrate on the date of amendment and such cases ought to have been committed to the Court of Session. Consequently, the decision of the Full Bench was overruled.
14. The judgment of the Full Bench had been rendered in the year 2008 and following that judgment the Magistrates all over the state of Madhya Pradesh had proceeded with the trial of such case and many such cases had been disposed of. Obeying the directions issued by the Full Bench, the Courts of Session had remitted back all those cases that were pending on the date of amendment before the Magistrate and had been committed. In such cases Magistrates had proceeded with the trial and had disposed of many such cases. The logical consequence of overruling the judgment of Full Bench in ordinary course would have been invalidation of all such proceedings, which would have resulted in tremendous hardship to the accused as the cases that were pending before the Magistrates on the date of amendment, and had meanwhile reached advanced stages of trial would have had to be committed to the Court of Sessions. The Supreme Court, however, was alive to this eventuality, and observed that:
............. "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 an 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." .......... (Emphasis supplied)
15. After considering numerous authorities on the point, the Supreme Court invoked the doctrine of prospective overruling. Consequently, the judgment of the Full Bench, no doubt, was overruled but only prospectively, thus saving the cases which had already been decided the Magistrate after being remitted or which had reached advanced stages of trial before the Magistrate, from re-committal. It may be noted however that the Supreme Court refrained from elaborating as to what constitutes an "advanced stage of trial"
16. The judgment gives rise to following questions:
(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?
17. Now we shall consider aforesaid questions one by one.
18. What constitutes advanced stage of trial in a case? The Supreme Court has not dilated upon the phrase "advanced stage of trial" in the judgment of Ramesh Kumar Soni but in the case of Sathish Mehra v. State of N. C. T. of Delhi, 2013 CRI. L. J. 411, advanced stage has been held to be the stage after framing of charge against the accused. In the cases of Akil v. State of NCT of Delhi, 2013 CRI. L. J. 571 and State of U. P. v. Shambhu Nath Singh, 2001 CRI. L. J. 1740 advanced stage has been held to be the stage when examination of witnesses begin. However, we shall have to distinguish between "advanced stage of a case" and âadvanced stage of trial in a case". The trial of a case begins when the Court applies its mind to facts of a case with a view to frame a charge. As such framing of charge may be advanced stage of a case but not advanced stage of the trial in a case.
19. In any case, if we were to assume that a case reaches advanced stage of trial with framing of charge, it may not be in conformity with the purpose of saving provision inserted in the case of Ramesh Kumar (supra) rather it will adversely affect the retrospective operation of the procedural amendment. Take for example, a case where the charge has been framed by the Judicial Magistrate of First Class and in view of the mandate of the Supreme Court the case is committed to the Court of Sessions. In such a case the Court of Sessions may reconsider the framing of charge and if prima facie, a case is made out, may frame the charge. Such a procedure would neither cause any significant amount of delay in the case nor entail any substantial hardship or prejudice to any party. As such, in this peculiar scenario, trial of a case cannot be said to be in an advanced stage, merely because charge has been framed therein.
20. To gather true import of the phrase "advanced stage of trial", reference may have to be made to paragraph nos. 24 & 25 of the judgment in the case of Ramesh Kumar Soni, which reads as follows:
24. In Rajasthan State Road Transport Corporation and Anr.
V. Bal Mukund Bairwa (2009)4SCC299, this court relied upon the observation 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.â
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.â
21. "Unnecessary and avoidable hardship to the accused" sought to be avoided by retrospective operation of the amendment by the Apex Court in Ramesh Kumar's case, would really be caused in the cases where material witness/witnesses have been examined on behalf of the prosecution. This is so, because in case a de novo trial is held after examination of such witness/witnesses those witness/witnesses would have to be examined afresh and their statements before Magistrate would be treated as previous statements under section 145 of the Evidence Act and the witness may be cross-examined as to that previous statement in addition to the one under section 161 of the Cr.P.C. and contradictions may arise, which may affect the merits of the case
22. There is another angle to the problem. A material witness, who had supported the prosecution case before Magistrate, may be pressurized or influenced to turn hostile in the trial held de novo. Likewise, a witness who had turned hostile before the Magistrate may support the prosecution case in the Court of Sessions. In both situations, the merits of the case would be affected, causing prejudice to the parties.
23. Now the question arises, as to who is a material witness? The phrase material witness has been examined by the Apex court in the case of Narain v. State of Punjab, AIR 1959 SC 484. The Court observed that a witness essential to the unfolding of the narrative on which the prosecution case is based, is a material witness. Whether a witness is so essential or not would depend on whether he could testify to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied.
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 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.
25. The first question is answered accordingly.
26. 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 sessions court is empowered to remit the case back to the Court of the Magistrate?
27. The answer of this question is dependent upon the jurisdiction of Sessions Court to try cases and powers of the Sessions Court when a case is committed.
28. In the case of Sudhir v. State of Madhya Pradesh, AIR 2001 SC 826 it was held that :
29. A Sessions Judge has the power to try any offence under the Indian Penal Code. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Sessions. The employment of word 'may' at one place and the word 'shall' at another place in same sub-section (1)
(a) of S. 228 unmistakably indicates that when an offence is not triable exclusively by Sessions Court it is not mandatory that he should order transfer of case to the Chief Judicial Magistrate after framing a charge.
30. In Sammun v. State of M.P., 1988 CRI. L. J. 498 (M.P.) also it is held that once the case is committed to the Sessions Court, it becomes clothed with the jurisdiction to try it and the mere fact that the offence disclosed is not one exclusively triable by the Sessions Court does not divest it of that jurisdiction. The provision in S. 228 (1) (a); therefore, has to be interpreted as clothing the Court with a discretion to transfer the case for trial to the Chief Judicial Magistrate.
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 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.
32. The second question is answered accordingly. Conclusions:
33. On the basis of foregoing discussion, it may be concluded that:
(1) The Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007, is retrospective in its operation. (2) Retrospective operation of the Amendment Act will not affect the cases wherein the trial before the Magistrate has reached an advanced stage.
(3) The trial of a case may be said to have reached an advanced stage where any material witness/witnesses have been examined by the prosecution.
(4) A witness is material who is essential to the unfolding of the narrative on which the prosecution is based or who deposes to any part of the prosecution case but is not a formal witness.
(5) In a case in which only charge is framed but no witness has been examined or only formal witnesses have been examined would not come under the category of a case which has reached an advanced stage.
(6) Where the Magistrate being of the opinion that the case is not at the advanced stage of trial, commits it to the Court of Session but the Sessions Court differs and is of the opinion that the trial in the case is already in advanced stage, it has option either to try the case itself or remit it back to the Chief Judicial Magistrate or Judicial Magistrate of First Class but Session Court has to exercise this jurisdiction in such a way that the purpose of saving is not frustrated and no prejudice is caused to either party.
34. In the backdrop of aforesaid legal position, reverting back to the facts of the instant case, we find that before its committal, learned Magistrate had recorded the statements of three prosecution witnesses. As already observed, the number of witnesses examined is not the determinative factor for deciding as to whether or not the trial has reached the advance stage. The testimony of the witnesses already recorded will have to be examined on the touch stone of the test as to whether or not the testimony of those witness/witnesses is essential to the unfolding of the narrative on which the prosecution case is based or who depose to any part of the prosecution case, but is the deposition is not of formal character. Whether the trial of the case has reached advanced stage, is to be judged essentially with reference to the entire final report filed against the accused.
35. In the instant case, Magistrate has committed the case to the Court of Sessions holding that the case is not at the advance stage of trial. Now it is for the Court of Sessions to examine as to whether or not the trial of the case had reached the advance stage before its committal. If the Court of Sessions is of the opinion that the case has indeed reached the advance stage, it would still have option either to try the case or remit it back to the C.J.M. or Judicial Magistrate but the Sessions Court has to exercise its jurisdiction in such a way that the purpose of saving is not frustrated and no prejudice is caused to either of the party.
36. Since the issue has so far not been raised before the learned Additional Sessions Judge at all, it would be appropriate to dispose of this miscellaneous criminal case with liberty to the petitioner accused to move appropriate application before the learned Additional Sessions Judge, who shall decide the same in the light of principles herein before enunciated keeping in view the final report in the case in its entirety and significance of the testimony of the witnesses already examined. Needless to mention that the petitioner shall be free to challenge as per law, the order so passed by the learned Additional Sessions Judge.
(C V SIRPURKAR) JUDGE