JUDGMENT 1. - This is an application in revision under sections 327 and 401 Cr. P.C. filed by Motisingh and others against the order of the Additional Sessions Judge, Sirohi, dated 7.12 1977 by which the application of the petitioners for holding a denovo trial was rejected. 2. The relevant facts giving rise to this revision petition may be briefly stated as follows:- 3. The petitioners arc facing trial in the court of Additional Sessions Judge, Sirohi under sections 307, 325 read with section 149 I.P.C. In the course of trial the evidence of the prosecution witnesses was heard and recorded by Shri S. Rai the than Additional Sessions Judge, Sirohi, but later on he was transferred to some other place or post and was succeeded by Shri B. D. Johri who also was transferred after some time to some other place and Shri G. L. Gupta succeeded him as Additional Sessions Judge, Sirohi. During the pendency of the trial section 326 of the Criminal Procedure Code 1973 was amended by Code of Criminal Procedure (Rajasthan Amendment) Ordinance 1976, Ordinance No. 12 of 1976, hereinafter referred to as the Ordinance which came into force on 22. 11. 1976 and which was subsequently replaced by the Code of Criminal Procedure (Rajasthan Amendment Act, 1977 dated 13th September, 1977) hereinafter referred to as the Amendment Act. By virtue of this amendment, the successor Judge was empowered to act on the evidence heard and recorded either in whole or in part by his predecessor-in-office. After the coming into the force of the Ordinance a request was made to Shri B. D. Johri on behalf of the petitioners for re-hearing the prosecution witnesses and for recording their evidence again as the amendment made in section 326 of the Criminal Procedure Code by the Ordinance was not retrospective The learned Additional Sessions Judge rejected the prayer. Later on when the Ordinance was replaced by the Amendment Act, 1977, a fresh application by the petitioners was filed on 18.10.1977 for demanding a denovo trial on the ground that section 326 Cr. P.C. was not amended retrospectively and the right of the petitioners to get their case decided by Judge, who partly heard and recorded the evidence has not been taken away. This application was rejected by the Additional Sessions Judge Shri G.L. Gupta on 7.12.1979. P.C. was not amended retrospectively and the right of the petitioners to get their case decided by Judge, who partly heard and recorded the evidence has not been taken away. This application was rejected by the Additional Sessions Judge Shri G.L. Gupta on 7.12.1979. Aggrieved by the order of rejection the petitioners have come up in revision to this Court as stated above. 4. The revision petition was taken up for admission on 6.3.1978 by a learned single Judge of this Court and and after admission was later on put up for hearing before Hon'ble Mr. Justice S.N. Deedwania on 11.7.1979. The learned single Judge of this Court passed an order on 11.7.1979 that this revision petition may be heard with D. B. Criminal Appeal No. 476 of 7977 (Sarjeet singh v. the State) which is pending in the Division Banch of this Court as the point involved in the revision petition was raised in the aforesaid appeal also. Hence this revision petition came up for hearing before us alone with D.B. Criminal Appeal No. 476 of 1979 (Sarjeet Singh v. The State) 5. We have carefully perused the record and heard Mr. S. R. Singhi, learned counsel for the petitioners and Mr. N. S. Acharya, Public Prosecutor. 6. The contention put forward by Mr. S. R. Singhi learned counsel for the petitioners is that only the Judge who has recorded the whole of the evidence was competent to give a decision on the guilt or innocence of the appellant and as in this case Mr. S. Rai who partly heard and recorded the evidence had ceased to exercise jurisdiction by reason of his own transfer to another post or place, his successor was not empowered to try this case in which part of the evidence was not recorded by himself. It was further urged that the impugned order of the Additional Sessions Judge rejecting the prayer of the petitioners for holding denovo trial suffers from illegality and irregularity and so it is liable to be set aside. It was further urged that the impugned order of the Additional Sessions Judge rejecting the prayer of the petitioners for holding denovo trial suffers from illegality and irregularity and so it is liable to be set aside. According to his submission, section 326 of the Criminal Procedure Code was not retrospectively amended by the Code of Criminal Procedure (Rajasthan Amendment Ordinance 1976) hereinafter referred to as the Ordinance and so the right of the accused to denova trial in case where the Additional Sessions Judge who has partly or wholly recorded the evidence ceased to exercise jurisdiction on account of his transfer to some other post or place cannot be taken away retrospectively unless the Ordinance shows a clear intention to vary such right. In nut shell the contention of the learned counsel for the petitioners is that the amendment made in section 326 Cr.P.C. does not apply to the trials pending before the Sessions Judge at the time of its coming into force. In support of his above contention Mr. S.R. Singhi raised upon the following authorities : (1) Pyare Lal appellant v. State of Punjab respondent reported in AIR 1952 S.C. 690. (2) Krishnalal v. Delhi Administration reported in 1964 (1) Cr. L. J. 572. (3) Hiralal Nansa Bhavsar and another appellants v. The State of Gujarat respondent reported in 1976 Cr. L. J. 80. (4) P. Shridhar appellant v. The State of U.P. and another opposite parties reported in 1976 Cr. L. J. 1861. 7. The Public Prosecutor on the other hand urged that before promulgation of the Ordinance, the application of section 326 Cr.P.C corresponding to section 350 old Cr.P.C. was limited to cases triable by Magistrate and did not cover trials before Sessions Judges with the result that the conviction and sentence by a court of Sessions was liable to beset aside if in coming to the finding the Sessions Judge has partly or wholly acted on evidence not recorded by him but by his predecessor. But now the amendment made in section 326 Cr.P.C. by promulgation of the Ordinance and thereafter by passing of the Code of Criminal Procedure Rajasthan Amendment Act 1977 hereinafter referred to as the Amendment Act which replaced the Ordinance has divested the accused of his right to claim a denovo trial and it is open to the succeeding Sessions Judge to act and give judgment on the evidence partly or wholly recorded by his predecessor. As for the nature and scope of the amendment it was further argued that it lays down a rule of procedure and is applicable to cases pending in the court of Sessions Judge on the date of its coming into force. In support of his above contention the Public Prosecutor relied on the following authorities: (5) Anand Gopal Sheorry v. State of Bombay reported in A.I.R. 1958 Supreme Court 915. (6) Raghunath Prasad v. State reported in A.I.R. 8. We have given our earnest consideration to the rival contentions. At the out set we may observe that prior to the coming into force of the Ordinance and the Amendment Act which replaced the Ordinance the application of the provision of section 326 Cr.P.C. (corresponding to section 350 old Criminal Procedure Code) was confined to cases triable by Magistrate and did not cover trials before Sessions Judges and so the conviction and sentence of an accused by a court of Sessions was liable to be set aside if in coming to his finding the Sessions Judge recording the conviction and sentence partly or wholly acted on the evidence not recorded by him but by his predecessor. But now under section 326 Cr. P. C. as amended by the Ordinance and the Amendment Act the legal position has undergone a drastic change in as much as that the Sessions Judges also are given the same powers as were conferred on the Magistrates to proceed with the case from the stage which was left off by their predecessors in office and to act on the evidence wholly or partly recorded by the later. The change appears to have been brought to avoid the necessity of commencing Sessions trials denovo at every time when Sessions Judges ceased to exercise jurisdiction by reason of their transfer to some other place or post or on account of the case having been transferred from their courts. The change appears to have been brought to avoid the necessity of commencing Sessions trials denovo at every time when Sessions Judges ceased to exercise jurisdiction by reason of their transfer to some other place or post or on account of the case having been transferred from their courts. So far there is no dispute about the legal position. The dispute raised before us is that the amendment made in section 326 Cr.P.C. is prima facie prospective and is not intended to prevent the necessity of trying from the beginning all Sessions cases which may be pending in a Sessions Court at the date on which flu Ordinance or the Amendment Act which replaced it came into force and in which evidence has been wholly or partly recorded by the out going Sessions Judge before his transfer. The reason given in support of the above contention is that unless right of the accused to claim denovo trial in a Sessions case is expressly or by necessary implication taken away retrospectively by a statute, the general salutary principle of law that only a Sessions Judge who heard and recorded the evidence competent to pronounce judgment on the guilt of innocence of the accused holds good and must prevail. In our opinion, the above contention put forth by the learned counsel for the appellant is not well founded because the object of the amendment made in section 326 Cr. P C. is only to affect the procedure and applies to pending Sessions cases also and it is not open for the appellant to contend that the right to demand denovo trial (in case the Sessions Judge who heard or recorded the evidence either in whole or in part is transferred to some other place or post) which was vested in him at the commencement of the trial cannot be affected by any change in the law during the pendency of his trial. It is no doubt true that a right of appeal has been regarded as a substantive right and a suitor cannot be deprived of such a vested right by any change in the law pending the proceedings unless such law is made retrospective by appropriate language, but this analogy cannot be extended to such changes in the law as would affect the procedure only. In Anantgopal Shorrey v. State of Bombay reported in AIR 1958 S.C. 915 , the Supreme Court observed as follows at page 917 : "The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principle applicable to the case. No person has vested right in any course or 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 than to proceed according to altered mode. See Maxwell on the Interpretation of Statutes page 225. Colonial Sugar Refining Co. Ltd. v. Irving 1905 A.C. 369 . In other words, a change in the law of procedure operates "retrospectively and unlike the law relating to vested right is not only prospective". The same view has been expressed in Maxwells Interpretation of Statutes 12th Edition at page 222 as follows , "The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the courts. No person has a vested right in any course of procedure but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in Which he sues, and if an Act of Parliament alters that mode of procedure he can only proceed according to the altered mode." Alterations in the form of procedure are always retrospective unless there is some good reason or other why they should not be." In Salmond on Jurisprudence 1957 Edition the true nature of the distinction between the law of procedure and the substantive law is mentioned as follows at page 503 : "What then, is the true nature of the distinction? The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions jus quod ad actiones pertinent using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject matter. It is the law of actions jus quod ad actiones pertinent using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject matter. Substantive law is concerned with the ends which the administration of justice seeks, procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself the former determines their conduct and relations in respect of the matters litigated". In craies on Statute Law 1952 Edition the following observations were made at pages 370-71 : "...........There is no vested right in procedure or costs. Enactments dealing with these subjects apply to pending action, unless a contrary intention is expressed or clearly implied .. ..............A statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing, 'in other words, if a statute deals mearly with procedure in an action and does not affect the rights of the parties, 'it will be held to apply prime facie to all actions pending as well as future". 9. Hence the position of law appears to be that the amendment made in section 326 Cr. P. C. contained only a rule of procedure and the pending Sessions cases are governed by the new procedure under the amended law, because by way of this amendment it is intended that the Sessions Judge may act upon the evidence which has been partly or wholly recorded by his predecessor. It merely lays down that instead of holding a denovo trial a Sessions Judge should proceed in another and different way by utilising the evidence which has been heard and recorded either in whole or in part by his predecessor-in-office. Reference in this connection maybe made to an authority in the B.N. Murthy, appellant reported in 1963 (1) Cr. L J. 650 wherein it has been observed as follows regarding the nature of the provisions contained in section 350 old Cr. P. C. which corresponds to section 326 of the new Criminal Procedure Code. Reference in this connection maybe made to an authority in the B.N. Murthy, appellant reported in 1963 (1) Cr. L J. 650 wherein it has been observed as follows regarding the nature of the provisions contained in section 350 old Cr. P. C. which corresponds to section 326 of the new Criminal Procedure Code. "It is obvious that Section 350 is concerned with the question of proof and the question as to evidence on which the judgment in the case is to be based. Section 350 indicates as to how the Magistrate is to proceed further, when he receives a case which has been heard by another Magistrate, and is part heard and how he is to proceed to deal with and utilise the date consisting of the evidence which had been recorded, by his predecessor, Thus section 350 is essentially a rule of procedure." 10. Mr. S.R. Singhi learned counsel for the appellant relying upon the authority of the Supreme Court in Pyarelal v. State of Punjab reported in A. I. R. 1962 S. C. at page 690 vehemently contended that the amendment made in section 326 Cr. P. C. by the Ordinance and later on by the Amendment Act does not apply to Sessions cases which were pending on the date on which the amendment came into force and that once the trial had started prior the coming into force of the amendment made in section 326 Cr. P. C. the law which has to be followed through out tie trial was the law in force on the date on which the trial was commenced. The above contention is devoid of substance because Their Lordships of the Supreme Court while dealing with the Criminal Law Amendment Act 1958 (Central Act II of 1958) which came into force on 27.2.1958 and which introduced a new sub-section (3) (a) in section 8 of Act XLVD of 1952 expressly making section 350 of the Old Code of Criminal procedure applicable to the proceedings before special Judge observed as follows:- "Lastly, we have to say a few words on the amendment of the Act expressly making S. 350 of the Code applicable to the proceedings before a Special Judge. That amendment came long after the decision of the case S. Jagjit Singh and had not expressly been made retrospective. That amendment came long after the decision of the case S. Jagjit Singh and had not expressly been made retrospective. It was on behalf of the respondent, the prosecutor, that the amendment being in procedural provision was necessarily retrospective and therefore, petition can now be taken to the action taken by S. Jagjit Singh. Assuming the rule contained in S. 350 of the Code is only a rule of procedure all would follow would be that it would be presumed to apply to all acting pending as well as future: Kimbray v. Draper (1868 3 QB 160.) such retrospective operation does not assist the respondent's contention. "Nor do we think it an argument against sending the case back retrial that the special judge now hearing the case would be entitled to on the evidence recorded by S. Narinder Singh in view of the amend" Whether he would be entitled to do so or not would depend on whether amended Act would apply to proceedings commenced before the amendment has to be noted that the impugned part of the proceeding was conflux before the amendment. On this question, we do not propose to express opinion. In any event, under S. 350 as it now stands a succeeding magistrate has power to resummon and examine a witness further. We cannot be late what the special Judge who tries the case afresh will think fit to do S. 350 of the Code is now applicable to the proceedings before him. Fora these considerations, we think it fit to send the case back for retrial". 11. The referred to above observations made by Their Lordships clear) indicate that the question whether the new sub-section (3) (a) to section 8 of Criminal Law Amendment Act 1952 (Central Act No. XLVI of 1952) would apply to case which was pending and part heard at the date on which sub-section (3) (a) cam into force was not decided and left open by their Lordships. Their Lordships however, made it clear that the answer to this question would depend on whether ti Amendment Act would apply to proceedings started before the Amendment. Hem it cannot be said that their Lordhsips of the Supreme Court ruled out the applicable of the new subsection (3) (a) of section 8 of the Criminal Law Amendment Act t all proceedings which were pending at the date of its coming into force. Hem it cannot be said that their Lordhsips of the Supreme Court ruled out the applicable of the new subsection (3) (a) of section 8 of the Criminal Law Amendment Act t all proceedings which were pending at the date of its coming into force. Another case relied upon by the learned counsel for the appellant is Kishanlal Dhavan Ate Mojes v. Delhi Administration reported in 1964(1) Cr. L. J. 572. In the case reliance was placed by the learned counsel for the respondent on provision is sub section (3) of section 8 of the Criminal Law Amendment Act XLVI 1952 by would the provisions of the Code of Criminal Procedure were made applicable to proceedings before a special Judge so far they were not in consistent with that Act and the Special Judge was deemed to be a court of Session. When trying a case under to Criminal Law Amendment Act No. XLVI of 1952. Their Lordships relying upto their previous judgment in Pyarelal v. State of Punjab reported in A. I. R. 196 S. C 690 observed that sub-section (3) of section 8 of Act No. XLVI of 1952 do not make the provision of section 350 of the Criminal Procedure Code applicable s proceedings before a special Judge. The relevant observations of their Lordship made in the referred to above authority in para No. 5 thereof are quoted below:- "Counsel for the respondent relies on sub-s. (3) of S. 8 of the Criminal Law Amendment Act (Act 46 of 1952) which makes the provisions of Code of Criminal Procedure, in so far as they are not inconsistent with that Act applicable to proceedings before a Special Judge and also provides that special Judge shall be deemed to be a Court of Session when trying a case under the Criminal Law Amendment Act (46) of 1952). But this question was considered in the case decided by this Court in Pyarelal's case, Cri. A No. 240 of 1960 D/30.8.1961: (P-A.I.R 1962 S.C 690: (1962) 1 Cr. L.J. 688) which it was held that sub-sec. (3) of S. 8. of Act 46 of 1952 did not contemplate that S. 350 of the Criminal Procedure Code becomes applicable to proceedings before a Special Judge." 12. The other two authorities reported in 1976 Cr. L.J. 84 and and in 1976 Cr. L.J. 688) which it was held that sub-sec. (3) of S. 8. of Act 46 of 1952 did not contemplate that S. 350 of the Criminal Procedure Code becomes applicable to proceedings before a Special Judge." 12. The other two authorities reported in 1976 Cr. L.J. 84 and and in 1976 Cr. L.J. 1861 (3) and (4) (Supra) on which reliance has been placed by the learned counsel for the appellant are distinguishable on the acts of this case. In Hiralal Nansa Bhavsar and another appellants v. The State of Gujarat respondent 1976 Cr. L.J.84) (3) it was held that the right of appeal is a substantive right which accrues to the parties to the prosecution at the time when cognizance is taken by the court and it can betaken away only by a subsequent retrospective enactment and it was further held that the right of appeal of the accused or the forum there of in that case was not governed by the provisions of subsection (2) (a) of section 484 of the new Code of Criminal Procedure. the other case P. Shridhar applicant v. the State of U. P. and another opposite parties reported in 1976 Cr. L. J. 1861 (4) it was contended that there was no provision for denovo trial in the court of Session in the Criminal Procedure Code and so the, trial must be continued from the same stage as it was left by Shri L. S. P. Singh. His Lordship Shri P. N Bakshi accepted the contention and observed that when a Sessions Judge who has partly recorded the evidence of witnesses is subsequently transferred, it is the duty of his successor in office to conduct the trial denovo in view of the principle of natural justice, and it is the right of the accused person to claim that decision about his guilt or innocence should be given by a Sessions Judge who heard the whole of the Evidence. Consequently we are of the view that the amendment made in section 326 Cr. P. C. by the Ordinance and the Amendment Act was applicable to this case which was pending at the time when the amendment came into force and so the action of the succeeding Sessions Judge in proceeding to act on the evidence recorded by his predecessor does not stand vitiated by any illegality or irregularity. P. C. by the Ordinance and the Amendment Act was applicable to this case which was pending at the time when the amendment came into force and so the action of the succeeding Sessions Judge in proceeding to act on the evidence recorded by his predecessor does not stand vitiated by any illegality or irregularity. Hence the impugned order of the Additional Sessions Judge rejecting the prayer of the petitioner for holding denovo trial does not appear to be illegal and improper. The contention of Mr. S. R. Singhi, learned counsel for the petitioners is, therefore, over ruled, and the revision petition is dismissed as having no substance.Revision dismissed. *******