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1976 DIGILAW 398 (CAL)

Kanhaiyalal Pasuari v. Corporation or Calcutta

1976-12-24

AMBICA PADA BHATTACHARYA, ANIL KUMAR SEN

body1976
JUDGMENT Sen, J. 1. On April 20, 1974, the petitioner in this Rule was convicted by a learned Presidency Magistrate (since renamed as Metropolitan Magistrate), Calcutta, under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, read with section 7 thereof and was sentenced to suffer rigorous imprisonment for 6 months and pay a fine of Rs. 1,000/-, in default to suffer further imprisonment for 6 months. It is, however, not in dispute that the cognizance of the offence was taken under the provisions of the old Code of Criminal Procedure, 1898 and the petitioner was so convicted on a trial which had started in the year 1972 and was pending on April 1, 1974, the day the new Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) came into effect. On May 3, 1974, the petitioner preferred an appeal against the said order of conviction and sentence to the City Sessions Court at Calcutta under section 374 of the new Code. By an order dated July 31, 1975, the learned Judge, City Sessions Court, returned the memo of appeal to the petitioner on the view that the said Court had not the jurisdiction to entertain the appeal on the material date. The learned Judge referred to section 6 of the City Sessions Court Act, 1953, which is as follows: "6. City Sessions Court not to have jurisdiction in certain matters. (1) The City Sessions Court shall not have any jurisdiction on appeal, reference or revision, (2) * * * * * * * * * (3) All matters in respect of which the City Sessions Court has no jurisdiction, shall be tried, dealt with or disposed of as if this Act had not been passed." Though this section was repealed on July 17, 1975 by an amendment of the City Sessions Court Act, 1953, such amendment not being retrospective, the learned Judge took the view that on the day the appeal was filed, City Sessions Court not having the necessary jurisdiction to entertain an appeal, the appeal as preferred by the petitioner to the said Court is not maintainable. 2. The aforesaid order of the learned Judge, City Sessions Court, is the subject matter of challenge in the above Rule. 2. The aforesaid order of the learned Judge, City Sessions Court, is the subject matter of challenge in the above Rule. The petitioner took out the above Rule on the opposite party to show cause why the order dated July 31, 1975, passed by the learned Judge, City Sessions Court should not be set aside and why the said court should not be directed to entertain the appeal and dispose of the same on merits. By way of abundant caution, the petitioner has also presented the memorandum of appeal, which had been returned to him, in this Court simultaneously so that if this court holds that this court is the proper forum for the appeal, the appeal may be entertained. Thus an important question arises for us to consider in this Rule as to what is the proper forum for the petitioner's appeal in this case. 3. It appears to us that a great deal of ambiguity and uncertainty as to the proper forum for appeals against appealable order passed by Presidency Magistrates has cropped up because the existing laws were not assimilated to the scheme of the legislative changes brought about by the new Code. The City Sessions Court Act, 1953 was enacted at a time when for the Presidency town (since renamed as Metropolitan area) there was no Court of Sessions under the old Code and no powers of entertaining appeal, reference or revision were vested in any such court by the said Code. This scheme, was however, totally changed by the new Code which constituted the Metropolitan area to be a Sessions Division and made it obligatory to establish a Court of Sessions therefor investing all the powers of a Court of Sessions including the powers of appeal, reference or revision on such a Court. Unfortunately, however, the provisions of the City Sessions Court Act, 1953 were not assimilated in time to the new scheme by appropriate amendment thereof. Section 6 of the City Sessions Court Act imposed a bar on the City Sessions Court from having a jurisdiction on appeal, reference or revision just contrary to such a jurisdiction being invested by the new Code. Section 6 of the City Sessions Court Act imposed a bar on the City Sessions Court from having a jurisdiction on appeal, reference or revision just contrary to such a jurisdiction being invested by the new Code. But even then we feel a great amount of hesitation in accepting the view taken by the learned Judge, City Sessions Court because once that view is accepted persons convicted by a Metropolitan Magistrate on a trial under the new Code prior to July 17, 1975 would be denied the right of appeal (in appealable cases) notwithstanding' the provisions of section 374 of the new Code by merely denying them a forum for such appeals. The old scheme stands amended. On the provisions of section 7(4) of the new Code read with section 5 of the City Sessions Courts Act, 1953, the Metropolitan area (Presidency town of Calcutta) is a sessions division for the purposes of the Code and the City Sessions Court is the court of Sessions for such a Sessions division. When section 374(3) provides that a person convicted on a trial held by a Metropolitan Magistrate will have a right of appeal to the court of sessions of the Metropolitan area to be the court of appeal. Notwithstanding the provisions of section 6 of the City Sessions Court Act, 1953, a question may pertinently be raised as to whether such provisions of the new Code should or should not be construed to be specific provisions to the contrary contemplated by section 5 of the new Code which would override section 6 of the City Sessions Court Act, 1953. We propose not to express any final opinion on such a question in the present case, inasmuch as, this case can be disposed of on another point and the conclusion of the learned Judge of the City Sessions Court can be upheld for reasons other than those given by him. 4. On the facts set out hereinbefore it is quite evident that cognizance of the offence in this case was taken long before the new Code had come into force. The trial itself was pending when the said Code came into effect. Therefore, the petitioner had a substantive right of appeal in case of his conviction by the Presidency Magistrate since renamed as Metropolitan Magistrate under section 411 of the old Code. The trial itself was pending when the said Code came into effect. Therefore, the petitioner had a substantive right of appeal in case of his conviction by the Presidency Magistrate since renamed as Metropolitan Magistrate under section 411 of the old Code. That right of appeal along with the forum therefor would be preserved in his favour unless there is anything express in the new Code to alter the said substantive right of appeal or the forum therefor or such a consequence follows by way of necessary implication. [See (1) Mukunda Das v. Bidhan Ch. Roy, 63 CWN 834]. There is nothing in the new Code to show any such alteration. Provisions of section 374 read with section 376 which provides for appeals in cases of conviction by Metropolitan Magistrates and the forum therefor, are all prospective in character and applies only to cases where the cognizance is taken under the provisions of the new Code and the trial is held thereunder. As a matter of fact, the provisions of section 374 (b) has brought in a limitation on the substantive right of appeal in case of conviction by a Metropolitan Magistrate which was not there in the old Code, and in the absence of any express provision to the contrary, such a limitation can not affect the right of appeal in pending cases which are governed by the old Code. The provisions of section 484(2) of the new Code on the other hand, clearly indicates the intention of the legislature to preserve the old Code for pending proceedings except for the proceedings covered by the proviso. 5. The Supreme Court in the case of (2) Gorikapada v. Subbaiya, AIR (1957) SC 540 clearly laid down that "the right of appeal is not a mere matter of procedure but is a substantive right. The institution of the 'suit carries 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. The institution of the 'suit carries 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. 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 institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal." Judging on this principle, there can be no doubt that though the order of conviction as against the petitioner was passed after the new Code had come into effect still when it was so passed in a trial which was initiated under the old Code the petitioner's right of appeal is to be governed by the 'provisions of the old Code, that is, under section 411 of the said Code. This being the position, the learned Judge, City Sessions Court, was right in his conclusion that in the present case no appeal lay to the said Court not because of the reasons given by the learned Judge but because of the fact that the appeal lay under section 411 of the old Code and to this Court. The view we have taken finds support in the decision of the Orissa High Court in the case of (3) Kanika Bewa v. The State, 76 Criminal Law Journal 418 and a Full Bench decision of the Gujarat High Court in the case of (4) H. N. Bhabsa v. The State of Gujarat, 76 Criminal Law Journal 84. 6. On the conclusions as above, the Rule obtained by the petitioner must fail, the order passed by the learned Judge, City Sessions Court, returning the memo of appeal must be upheld and the Rule must be discharged, which we direct. 6. On the conclusions as above, the Rule obtained by the petitioner must fail, the order passed by the learned Judge, City Sessions Court, returning the memo of appeal must be upheld and the Rule must be discharged, which we direct. Since, however, the petitioner had preferred the appeal to the City Sessions Court on the uncertainty of the legal position and since he was bona fide proceeding with the appeal before the said court on the belief that the appeal lay before the said court, we condone the delay in petitioner's presenting the memo of appeal in this Court. The memo of appeal which was filed in this Court be now registered as an appeal under section 411 of the Code of Criminal Procedure, 1898, if the same is otherwise in form. 7. The appellant-petitioner is permitted to correct the cause title of the Memorandum of Appeal. 8. Let the appeal now be listed for hearing for admission a week after the Christmas holidays. 9. Since the Rule is discharged, we direct that the accused-petitioner must surrender to the bail bond. Time for surrendering is, however, extended till 10th January, 1977. We further direct that as and when he surrenders to the bail bond, he may be released on fresh bail to the satisfaction of the Chief Metropolitan Magistrate, Calcutta, pending disposal of the application for admission of appeal which we have this day directed to be registered. Bhattacharya, J.: I agree.