Research › Browse › Judgment

Allahabad High Court · body

1976 DIGILAW 578 (ALL)

Ayub Ali Khan v. Haseena Bano

1976-08-31

J.P.CHATURVEDI

body1976
JUDGMENT J. P. Chaturvedi, J. 1. THIS is a revision by Ayub Ali Khan against an order of the learned Sessions Judge, Bareilly, dated 24th February 1975 dismissing his revision against an order of the City Magistrate, Bareilly dated 12th November 1974 granting maintenance at the rate of Rs. 100/- per month to the opposite party. 2. THE facts giving rise to the revision are that Smt. Haseena Bano made an application under section 488 of the Code of Criminal Procedure 1898 in the court of City Magistrate, Bareilly claiming maintenance from her husband Ayub Alt Khan. She alleged that she had been married to Ayub Ali Khan and that she had been discharging the obligations of a wife towards her husband and that the behaviour of her husband Ayub Ali Khan was improper and cruel. She, therefore, left his house and began to live with her father. She was again taken to his house by Ayub Ali Khan but she was turned out of it after beating her. She also gave birth to a son from Ayub Ali Khan. There was an agreement between them under which Ayub Ali Khan agreed to pay Rs. 50/-to the applicant. She claimed Rs. 200/-per month for maintenance. In his written statement Ayub Ali Khan admitted that the applicant Smt. Haseena Bano was his wife. He, however, denied that his behaviour towards her was cruel. He further alleged that she had made the claim for maintenance at the instigation of her father. The claim of the applicant Smt. Haseen Bano found favour with the learned City Magistrate who granted her maintenance allowance of Rs. 100/- per month. 3. AGGRIEVED against the order of the learned Magistrate Ayub Ali Khan filed a revision which was dismissed by the learned Sessions Judge on 24th February 1975. 4. AYUB Ali Khan has filed a second revision in this Court. Learned counsel for the opposite party Smt. Haseena Bano has taken preliminary objection as to the maintainability of the second revision. It has been contended that although the application for maintenance had been made when the Code of 1898 was in force, the order of the learned Magistrate was passed on 12th November 1974 after the Code of Criminal Procedure of 1973 had come into force. It has been contended that although the application for maintenance had been made when the Code of 1898 was in force, the order of the learned Magistrate was passed on 12th November 1974 after the Code of Criminal Procedure of 1973 had come into force. As such the first revision filed by AYUB Ali Khan in the court of Sessions was preferred and disposed of under the provisions of section 397 of the Code of Criminal Procedure 1973. Accordingly sub-section (3) of section 397 of the New Code barred a second revision in the High Court. In other words it has been contended that the Code of Criminal Procedure, 1973 has been given retrospective effect so that it applies to certain pending matters also. Learned counsel for the petitioner Ayub Ali Khan on the other hand has contended that the Code of Criminal Procedure 1898 was applicable inasmuch as Smt. Haseena Bano made an application for maintenance under section 488 of the Code of Criminal Procedure, 1898. He has, therefore, contended that the new Code of Criminal Procedure was not applicable and the second revision was not barred. 5. NORMALLY statutes are to be con-1 strued as referring to future events and are not to be given retrospective effect. Even where an enactment is retrospective, it does not necessarily affect pending cases. Under section 6, General Clauses Act, 1897, the repeal of an enactment does not prima facie, affect pending actions which are to be decided as if the repealed enactment was still in force. But this rule is subject to the condition that the Legislature has not shown a contrary intention either in express words or by necessary implication. The line of enquiry in a case when the repeal is followed by fresh legislation on the same subject is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them- Baliah v. Rangachari, AIR 1969 SC 701 . It is, therefore, to be seen whether the Code of Criminal Procedure, 1973 expressly or by necessary implication repeals the application of the old Code of Criminal Procedure to cases like the one with which we are concerned. 6. THE Code of Criminal Procedure 1973 purports to be an Act to consolidate and amend the law relating to Criminal Procedure. It came into force on 1st April 1974. 6. THE Code of Criminal Procedure 1973 purports to be an Act to consolidate and amend the law relating to Criminal Procedure. It came into force on 1st April 1974. Section 4 of the new Code provides :- "(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained, (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." Section 484 (1) further provides that the Code of Criminal Procedure 1898 is hereby repealed. Sub-section (2) which purports to be a saving clause is to the following effect :- "(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, proclamations issued, powers conferred, forms prescribed, local jurisdiction defined, sentences passed sand orders, rules and appointments, not being appointments as Special Magistrates, 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, defined, passed or made under the corresponding provisions of this Code; (c) any sanction accorded or consent given under the old Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction or consent; (d) the provisions of the old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution." It will appear from the foregoing provisions that Sec. 4 of the new Code which is analogous to the provisions of section 5 of the old Code provides that its provisions will be applicable to all investigations, enquiries, trials and other proceedings while sub-section (1) of section 484 of the new Code repeals the Code of 1898 wholsale except to the extent mentioned in sub-section (2) of that section. The extent of exclusion of the old Code from application to the pending cases, however, depends upon the import of clause (a) of subsection (2) of section 484 of the new Code. 7. The extent of exclusion of the old Code from application to the pending cases, however, depends upon the import of clause (a) of subsection (2) of section 484 of the new Code. 7. THERE may be following kinds of pending cases relating to offences or events before the new Code came into force on 1st April, 1974 : (1) Cases in which investigation had not started and was not pending at the time of the commencement of the new Code; (2) Cases in which investigation had begun under the old Code and was pending on the date the new Code came into force; (3) Cases in which an enquiry other than an enquiry under Chapter XVIII of the old Code had started and was pending on the date of commencement of the new Code; (4) Cases in which an enquiry other than an enquiry under Chapter XVIII of the old Code did not start before the commencement of the new Code; (5) Cases in which trial had commenced and was pending when the new Code came into force; (6) Cases in which trial had not started before the commencement of the new Code and was not pending when the new Code came into force; (7) Cases in which the trial had concluded but in which appeal had not been preferred and was not pending when new Code came into force; (8) Cases in which trial had concluded and in which appeal had been preferred before the commencement of the new Code and was pending when the new Code came into force; (9) Cases in which trial and appeal had concluded but a revision had been pending when the new Code came into force, and (10) Cases in which trial and appeal had been disposed of but no revision had been preferred before the new Code came into force but a revision was preferred subsequent to the coming of the new Code into force. 8. CLAUSE (a) of sub-section (2) of section 484 of the Code of Criminal Procedure 1973 saves the repeal of the old Code only to the extent that if an appeal, application, trial, enquiry or investigation is pending such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, in accordance with the old Code of Criminal Procedure. In other words it provides for application of the old Code to categories of cases mentioned at serial Nos. 2, 3, 5, 8 and 9. If the Investigation had started after the new Code had come into force although the offence or events had taken place when the old Code was in force such investigation is not covered by the saving clause. Similarly an enquiry or trial which had not commenced when the old Code was In force and was not pending on 1st April 1974 will be outside the ambit of clause (a). Accordingly if an appeal is preferred after the commencement of the new Code it shall not be covered by this clause. Again, as held in the case of P. Philip v. The Director of Enforcement, New Delhi, 1976 AWC 333 the word 'application' in clause (a) of sub-section (2) of section 484 of the Code of Criminal Procedure 1973 includes a petition for revision, if a revision was not pending when the new Code came into force the clause is not applicable. According to the literal interpretation of clause (a), therefore, the old Code would be applicable only to such proceedings as had been pending when the new Code came into force and not to others. If the Legislature intended to include categories Nos. 1, 4, 6, 7 and 10 within the ambit of the saving clause it would have said so expressly. The contention of the learned counsel for the petitioner that if the offence had been committed or event had taken place before the commencement of the new Code and if trial or enquiry had started before the commencement of the new Code, revisions or appeals had to be disposed of in accordance with the old Code is not warranted by the language of the provision. It is not insignificant that subsection (2) of section 484 begins with a non- obstante clause-' 'Notwithstanding such repeal''. In framing a non-obstante clause the draftsman has always primarily in his mind those provisions which stand In the way and the clause is Intended to convey that such provisions shall not be an impediment to the operation of the clause. The Legislature was of the view that but for the saving clause the sub-section (1) of section 484 of the new Code repealed the old Code wholesale even in respect of pending cases. The Legislature was of the view that but for the saving clause the sub-section (1) of section 484 of the new Code repealed the old Code wholesale even in respect of pending cases. It, therefore, thought it in its wisdom necessary to provide for a saving clause in respect of such pending cases as it deemed necessary to be governed by the old Code. As such the saving clause Is to be applied only to such matters as have been specifically mentioned therein and it should not be extended to other cases. 9. LEARNED counsel for the opposite party has referred to the authority reported in P. Philip v. The Director of Enforcement, New Delhi, 1976 AWC 333 In that case the Director of Enforcement, New Delhi made a complaint on 2nd February 1971 against four persons. P. Philip raised objections as to the maintainability of the complaint and prayed for its dismissal. By an order dated 5th September, 1973 the trial court dismissed the application. On the same day P. Philip filed a criminal revision petition under section 435 of the Code of Criminal Procedure, 1898 before the Sessions Judge who dismissed the same on 6th August, 1974. P. Philip preferred a criminal revision to the High Court. The High Court dismissed his revision on the ground that it was not maintainable in view of section 399(3) of the new Code. It was held that inasmuch as the revision application made by Philip was pending before the Sessions Judge when the new Code came into force, the revision was required to be disposed of in accordance with the provisions of the old Code in view of section 484(2) (a) of the new Code. It was also held that the provisions of section 399(3) were not applicable in the circumstances of the case. It is clear that the revision in the court of Sessions was not one under the provisions of section 399 of the new Code and, therefore, the revision in the High Court could not be deemed to be a second revision under those provisions. As such the bar under section 399(3) of the new Code did not come into play. This authority therefore, does not help the applicant. 10. IN the present case the facts are otherwise. As such the bar under section 399(3) of the new Code did not come into play. This authority therefore, does not help the applicant. 10. IN the present case the facts are otherwise. The order of the trial court was passed when the new Code had come into force and Ayub Ali Khan had preferred a revision against that order after the new Code had come into force and as such the revision in the court of Sessions was under the provisions of section 397 of the new Code. The present revision also purports to be under the provisions of sections 397 and 401 of the Code of Criminal Procedure. The provisions of section 397(3) clearly bar a second revision in the High Court by the same party, as such the objection of the learned counsel for the opposite party is valid and sustainable. The revision is, therefore, dismissed as it is not maintainable in view of the provisions of section 397(3) Code of Criminal Procedure, 1973. The stay order is vacated. Let the record of the lower court be sent forthwith. Revision dismissed.