Surendra Singh v. State Of Bihar — 1977 DIGILAW 16 (PAT)

Judgment Hari Lal Agrawal, J. 1. This application is directed against the order dated 6th of December, 1975 (Annexure 4) passed, by the Chief Judicial Magistrate, Patna, issuing processes against both the petitioners under Section 204 of the Code of Criminal Procedure, 1973 (briefly the new Code) for their trial for an offence under Section 302 of the Indian Penal Code, said to have been committed by them, on the ground that the said order was vitiated for non-compliance of the provision of Section 202(2) of the new Code which had already come into force on the date of the passing of the impugned order. The relevant facts may be stated in brief. 2. Mossomat Chandramati Devi (opposite party No. 2) had filed a petition of complaint on 30.1.1973 in the Court of the Sub-divisional Magistrate, Patna, against the petitioners and two others alleging that they had committed the murder of her husband Ragho Singh on 18.11.1972. Four persons were mentioned as witnesses in the petition of complaint. It is not necessary to state the other allegations made by the said complainant against the petitioners for decision of the question in issue in this case. 3. For the said occurrence, earlier a police case was instituted on the report of Krishna Kumar Singh (nephew of the deceased and now one of the accused in the present complaint case) in which both the petitioners were prosecution witnessess. The police, after investigation, had submitted chargesheet and all the accused were sent up to stand their trial. By a judgment passed by the Third Additional Sessions Judge Patna, on 31.7.1975, the trial however ended in their acquittal. In the meantime as already seen earlier the complaint petition in question was filed. The complainant was examined on solemn affirmation by the Sub-divisional Magistrate on the same day and thereafter he sent the case for inquiry under Section 202 of the Code of Criminal Precedure, 1898 (briefly the old Code) to Sri T.P. Sinha, a first class Magistrate, Patna. The Enquiring Magistrate examined two of the witnesses, named in the petition of complaint and submitted his report dated 24.4.1973, holding that the case of the complainant was false and the complaint was fit to be dismissed. The Enquiring Magistrate examined two of the witnesses, named in the petition of complaint and submitted his report dated 24.4.1973, holding that the case of the complainant was false and the complaint was fit to be dismissed. The matter, however remained pending in the file of the Sub-divisional Magistrate till the new Code came into effect on 1.4.1974 and, conseqnently, the file was Transferred to the Chief Judicial Magistrate, Patna. The matter was taken up by the Chief Judicial Magistrate, and by his order dated 16.9.1974, he called the case diary along with the supervision note and the report of the C.I.D. in the earlier case, but inspite of several adjournments, only the case diary was received and the learned Chief Judicial Magistrate, after perusing the petition of complaint and examining the sworn statement of the complainant and the evidence of the two witnesses examined by the Enquiring Magistrate, held that a prima facie case was made out under Section 302 of the Indian Penal Code. Accordingly, he issued non- bailable warrant of arrest against the accused persons. It is this order that is being challenged by the persent application. 4. Learned Counsel appearing for the petitioners contended that the learned Chief Judicial Magistrate committed an apparent error of law in passing the impugned order by relying upon the evidence of the two witnesses examined in course of the inquiry by the Enquiring Magistrate in pursuance of the order of the Sub-divisional Magistrate, inasmuch as the complaint case being still pending, in the sense that neither any order under Section 203 or Section 204 of the new Code was passed and the earlier inquiry having not been held in accordance with the procedure as laid down in sub-Section (2) of Section 202 of the new Code, the same was inadmissible and it was necessary that all the witnesses mentioned in the petition of complaint should have been examined on oath in the inquiry before that could be taken in to consideration. 5. Under Section 202 of the new Code, any Magistrate, on reciept of a complaint of an offence, if he thinks fit, may postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made. 5. Under Section 202 of the new Code, any Magistrate, on reciept of a complaint of an offence, if he thinks fit, may postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made. According to the proviso to Sub-section (2) of this Section, if the offence complained of is triable exclusively by the court of session, the Magistrate "shall call upon the complainant to produce alt his witnesses and examinehe tm on oath." On the basis of this provision, the contention advance d by the learned Counsel for the petitioners is that, inasmuch as the offence complained of was one of murder, and triable exclusively by the court of session, in the inquiry that was ordered by the predecessor-in-office of the learned Chief Judicial Magistrate, the complainant should have been directed to produce all her witnesses and examined them on oath, and that the inquiry held in a different manner, that is, in the manner prescribed under the old Code, could not be looked into much less made any basis for passing any order under Section 204 of the new Code. 6. In this connection reference has to be made to the repeal and savings provisions provided under Section 484 of the new Code. After stating that the old Code is repealed, it says: 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. The above provision clearly intends for the disposal or continuance of some of the proceedings in accordance with the provisions of the old Code inspite of its repeal, and one of such provisions intended to be completed or continued under the provisions of the old Code is "inquiry." 7. The above provision clearly intends for the disposal or continuance of some of the proceedings in accordance with the provisions of the old Code inspite of its repeal, and one of such provisions intended to be completed or continued under the provisions of the old Code is "inquiry." 7. Learned Counsel for the petitioners, however, placed reliance upon a Bench decision of this Court in Mahanth Harihar Das and Ors. v. The State (1) where it was held that a complaint filed under the old code was not covered by the saving clause of Section 484(2) referred to above, and contended that inasmuch as the complaint case itself was not covered by the saving clause and the same being still pending, not being disposed of by passing final order either under Section 203 or 204 of the old code, as already indicated earlier, the inquiry must be done in accordance with the provisions and procedure contemplated under the new code. 8. I am afraid, the contention is entirely erroneous and can not be accepted. In the case cited by the learned Counsel for the petitioners itself, the complaint was filed before the coming into force of the new code. In that case also, the sub-divisional Magistrate had sent the case for inquiry under Section 202 of the code to another Magistrate in October, 1973. The inquiry report was also submitted on 4.2.1974 recommending that the complaint be dismissed, but before any order could be passed, the new code came into force and the proceeding was transferred to the Judicial Magistrate who, on 3.6.1974, summoned the accused persons, differing from the report of the Euquiry Magistrate. The situation was very much similar to that of the case before us. The Contention raised in that case, however, was different and that was that the Judicial Magistrate had no jurisdiction to consider the inquiry report as on account of saving clause, referred to above it was the Sub-divisional Magistrate himself, who had initially taken cognizance who was competent to pass any final order and the new code had no application. Alternatively it was contended that even if it was held that the new code would apply, still the Judicial Magistrate could not be said to be the successor-in-office as the Magistrate who had taken cognizance under Section 190(1)(a) of the old code. Alternatively it was contended that even if it was held that the new code would apply, still the Judicial Magistrate could not be said to be the successor-in-office as the Magistrate who had taken cognizance under Section 190(1)(a) of the old code. Both the contentions were considered in great detail by this Court and it was held that the petition of complaint not having been specifically mentioned in the savings provision contained in Section 484(2) of the new code, it was not covered by the same and, therefore, the new code will apply to such complaints and they have to be disposed of in accordance with provisions of the new code. It was further held that the Judicial Magistrate was the successor-in-office of the Sub-divisional Magistrate and after the enforcement of the new code, he was competent to take cognizance or pass an order under Section 204 of the new code. The impugned order passed by the Judicial Magistrate was, therefore, upheld and the application was dismissed. The facts of the case relied upon on behalf of the petitioners are, therefore, entirely against their contention. 9. The Supreme Court in the case of Nani Gopal Mitta v. State of Bihar while considering the amendment of Section 5 of the Prevention of Corruption Act (1947), by the amending Act 40 of 1964, observed that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were completed at the time the amending Act came into force. With reference to the principle embodied in Section 6 of the General clauses Act, it was further observed that pending cases, although instituted under the old Act but still pending, are governed by the new procedure under the amended law, but what procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. It is, no doubt, that as a general rule, alterations in the form of procedure are retrospective in character unless there is some good reason or the other why they should not be. 10. We have seen the saving provision contained in Section 484 of the new code, according to which the repeal shall not affect the cases enumerated in Sub-section (2) of Clauses (a) to (d). 10. We have seen the saving provision contained in Section 484 of the new code, according to which the repeal shall not affect the cases enumerated in Sub-section (2) of Clauses (a) to (d). In Clause (a), one of the proceedings which was still to be disposed of, continued, held or made, as the case may be in accordance with the provisions of the old code, is "inquiry". Learned Counsel for the petitioners could not point out any infirmity in the inquiry that was held by Shri T.P. Sinha, the Enquiring Magistrate, in pursuance of the order of the Sub-divisional Magistrate, we have seen that the inquiry was ordered by the learned Sub-divisional Magistrate when the provisions of the old code were still in force and the inquiry was also completed and report submitted during that period in accordance with the procedure then applicable to such an inquiry. The contention that is, however, urged before us is that in as much as a complaint petition as a whole was outside the purview of the saving provision contained in Section 484 of the new code, any step taken in the said proceeding or any stage reached in the same, in pursuance of the provision of old code, was rendered invalid if there was any change in the procedure for reaching the said stage or taking the said step in the new code, and as the procedure for an inquiry under Section 202 under the new code was different than that under the old code, the said inquiry report could not be looked into. In other words, the contention is that the expression "inquiry" mentioned in Sub-section (2) of Section 484 of the new code did not cover "inquiry" under Section 202 of the new code. If the agrument of the learned Counsel is accepted, then it amounts that the part of the old procedure already applied and concluded before the amendent came into force, became bad. In my opinion, this is not the principle of interpretation of statute. Even retrospective operation of amendment to any law relating to procedure does not render ex post facto the procedure illegal in any proceeding when it was legal, when the amending provision came into force. Such construction will lead to grave and serious consequences and no court would permit the same unless, of course the statute expressly or by compelling implication, says so. Such construction will lead to grave and serious consequences and no court would permit the same unless, of course the statute expressly or by compelling implication, says so. The expression "inquiry", which finds specifically mentioned in Clause (a) of Sub-section (2) of Section 484 of the new code, is intended to be still disposed of, continued, held or made as the case may be in accordance with the provision of the old code. Inquiry is a simply a stage in a proceeding and the Legislature when intended to express differently with respect to an inquiry under chapter XVIII of the old code pending at the commencement of the new code, expressly declared that such inquiry would be disposed of in accordance with the provisions of the new code. The provisions contained in the proviso with respect to chapter XVIII inquiry of the old code, also magnifies the intention of the Parliament that any other inquiry was not intended to be dealt with and disposed of in accordance with the provisions of the new code. 11. Having taken the above view, I do not find that any assistance can be derived by the learned Counsel for the petitioners from the case of Paranjothi Udyar and Ors. v. State and Ors. 1976 Criminal Law Journal 598 cited by him. In that case, the essential question that fell for consideration before a learned single Judge of the Madras High Court was as to whether the committal inquiry under chapter XVIII of the old code which had already proceeded when the new code came into force, could still be completed under the old code. The learned judge with reference to the various provisions contained in Sections 200, 202(2) proviso, 207, 208 and 209 and proviso to Section 484(2) of the new code held that whatever the stage of the said inquiry might be, it was completely wiped out and the provisions of the new code will apply as if the inqird had started after the commencement of the new code. In my opinion the principle laid down in this case has no application as special provision has been made in the new code with respect to the inquiry under chapter XVIII of the old code. In my opinion the principle laid down in this case has no application as special provision has been made in the new code with respect to the inquiry under chapter XVIII of the old code. The said principle however, would have no application to an inquiry under Section 202 already, ordered under the old code and that would not be disposed of, continued, held or made, as the case may be under the new code, in view of the special provisions contained in Section 484(2) of the new code. 12. The result of the above discussissons is that I do not find any merit in the application. It is, accordingly, dismissed.