JUDGMENT 1. - By this reference dated 19.9.87 in Sessions case No. 79/84, following questions are referred to this court for decision : "(1) Whether Section 7(1) of the Rajasthan Dacoity Affected Areas Act, 1986 is retrospective and scheduled offences pending trial on its commencement in Dholpur District ' on 17.8.87 are triable by the special court. (2) Even if question No. 1 is answered in negative, whether special judge can try cases of scheduled offences committed prior to the commencement of Raj. Dacoity Affected Areas Act in Dholpur District on 17.8.87 and transferred to him by competent authority. (3) Whether special judge can send back a case which was transferred to his court by District and Sessions Judge in exercise of his powers under sectionec. 408 Cr.P.C. 2. Taking into account the frequent offences of dacoity by various Dacoity-Gangs of dacoits in Dholpur area and to break the chain of vested interests assisting gangs of Dacoits and to control them the Legislature has enacted the Rajasthan Dacoity Affected Areas Act, 1986 (hereinafter to be referred as 'the Act'). The Act has come into force with effect from 23rd September, 1985. Under the provisions of that Act certain offences'have beer specified including some offences which are not contained in Indian Penal Code The- Act has also provided for speedy trial, for punishment of the accused-persons who have committed the offences specified in the schedule. 3. The Sessions Case No. 79/84 was pending in the court of Addl Sessions Judge, Dholpur when the Act came into force. The learned Addl Sessions Judge, Dhopur transferred the case in hand as well as other similar cases which involved the offences specified in schedule attached to the Act, vide order dated 18.8.87. 4. The Judge of Special Court, under the Act, sent the files back to the court of Addl. Sessions Judge, Dholpur. Therefore, the Addl. Sessions Judge has sent this reference to this Court, for the purpose, whether provision of Section 7(1) of the Act has retrospective effect ? 5. Mr. Agrawal took great pain and assisted this Court for answering the questions referred above. 6. Clause (c) of sub-sec. (1) of Section 2 of the Act defines scheduled offences. 'Scheduled offences' means an offence specified in. the schedule appended to this Act including an offence forming part of, arising out of, or connected with the commission of dacoity. 5. Mr. Agrawal took great pain and assisted this Court for answering the questions referred above. 6. Clause (c) of sub-sec. (1) of Section 2 of the Act defines scheduled offences. 'Scheduled offences' means an offence specified in. the schedule appended to this Act including an offence forming part of, arising out of, or connected with the commission of dacoity. Ciause (d) thereof;defines scheduled offender. 'Scheduled offender means a person who committed or is a person accused of the commission of any scheduled offence. Clause (e) thereof defines special court. 'Special Court' means a special court constituted under Section 6 of the Act. Section 3 of the Act declared dacoity affected area. Sub-sec. (1) of Section 7 of the Act contemplates the jurisdiction of special court which reads as under : "Notwithstanding anything contained in the Code or in any other law for the time being in force,. a scheduled offence shall be triable only by a special court." 7. The Act, specifically provides that the scheduled offences shall be tried only by a special court. Term "only" is emphasised to show that after commencement of the Act, no other court can try the scheduled offences in dacoity affected area and Section 8 of the Act provides that special court may take cognizance of any scheduled offence. Thus, even the charge sheet is to be filed in special court only. The special court, will follow the procedure prescribed for trial. of a session case and special court will be deemed to be a court of session. 8. Some new offences have been created in the Act under Sections 9, 10 and 12. Section 10 provides that notwithstanding anything contained in sub-section (3) of Section 354 of the Code, when the conviction under is Act is 'made in respect of the murder of more than one person or the murder of a public servant or a member.of his family and sentence of death is not awarded, the judge shall,state the special reasons for not awarding the death sentence. Similarly, Section 12 provides that where a person living. Similarly, Section 12 provides that where a person living. in a dacoity-affected area is found to be in possession of properties in that area or elsewhere in Rajasthan which he cannot satisfactorily account for and which have been acquired by or as a result of the commission of a scheduled offence, he shall be punished with imprisonment which may extend to seven years and with fine. Thus the burden lies on the person who possesses the unexplained property. The provisions of Section 13 also provides minimum sentence for scheduled offences that for the offence specified in schedule the minimum sentence will be 3 years. These are the provisions which provide punishment for the scheduled offences. Therefore, they may have prospective effect. But we are concerned with the retrospective effect of the provision of sub-section(1) of Section 7 of the Act. The question referred to this court is whether the Special Court can try cases which are either pending in any other court, on the date of commencement of the Act or whether the Special Court can try the cases in respect of scheduled offences which have been committed on or before (sic) 23.9.1985 ? 9. Mr. Agrawal has brought to my notice the decisions in cases of Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh, AIR 1983 SC 394 ; Anant Gopal Sheorey v. State of Bombay, AIR 1958 SC 915 ; Memon Abdul Karim Haji Tayab, Central Cutlery Stores Veraval v. Deputy Custodian General, New Delhi and others, AIR 1964 SC 1256 ; New India Insurance Company Ltd. v. Smt. Shanti Misra, AIR 1976 SC 237 and, Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 . 10. In case of Anant Gopal (supra), their Lordships of the Supreme Court, in pars 4 of the judgment have observed that whether to a pending prosecution the provisions of the amended Code have become applicable. Their Lordships of Supreme Court have held that no person has a vested right in any course of 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 the altered mode. 11. 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 the altered mode. 11. In case of Memon Abdul Karim (supra), the issue before their Lordships was for the amended Section 48 which came into force from 22.10.1956, and sub. sec (1) and (2) of the Act are clearly procedural and would apply to all cases which have to be investigated in accordance therewith after 22.10.1956, even though the claim may have arisen before the amended section inserted in the Act. Their Lordships, in para 4 of the judgment, have observed that procedural amendment to a law apply, in the absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date. 12. In case of New India Insurance Co. (supra), their Lordships of the Supreme Court, in para 5 of the judgment, have observed that on the plain language of Sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of formula i.e., a change of adjectival or procedural law and not of substantive law. It is a well established proposition that such a change of law operates retrospectively and the person has to go to the; new forum even if his cause of action or right of action accrued prior to the change of forum. 13. In case of Gurbachan Singh (supra), their Lordships of the Supreme Court, in para 36 of the judgment have observed that the provisions of the said section do not create any new offence and as such it does not create any substantial right but, it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. Their Lordships, in para 37 of the judgment, have reproduced the language of volume (sic) of Halsbury's Law of England at page 574, which reads as under : "The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament." 14. In case of Rao Shiv Bahadur Singh (supra), their Lordships of the Supreme Court, in para 9 of the judgment, have observed that what is prohibited under Article 20 is only conviction or sentence under an "ex-post facto" law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence, at the time cannot 'ipso facto' be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved. 15. Article 20 of the Constitution of India provides protection in respect of conviction for certain offences that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. 16. By enactment of the Act, new provisions have been enacted and made punishable i.e. punishment for offences against public servant. 17. No doubt and as stated above the provision of Section 9 of the Act creates new offences and in case of murder of more than one person and murder of a public servant or a member of his family the death sentence is provided and if no death sentence is awarded in that case the court shall have to give reasons for not awarding death sentence, if in scheduled offences no specific punishment is provided the sentence can be extended to 10 years in such cases. Similarly, the provisions of Section 12 of the Act provides that even a person living in dacoity-offence area found in possession of properties in dacoity affected area or elsewhere in Rajasthan, if he has not satisfactorily accounted for the properties, he shall be punished with imprisonment which may extend to 7 years. The minimum sentence for the scheduled offences shall be 3 years. These are, in fact new offences created in the Act and they may not have retrospective effect as aforesaid. 18. The sub-sec. (1) of Section 7 of the Act provides that scheduled offences shall be tried only by a special court as discussed above and the cases referred above. No doubt is left that sub-section (1) of Section 7 of the Act is procedural in nature. It provides only that which court shall try scheduled offence and once the view has been taken that sub-section (1) of Section 7 of the Act is procedural in nature, they have retrospective effect. Sub- section (1) of Section 7 of the Act starts with non-obstantive clause. Therefore, once sub-sec (1) of Section 7 has over-riding effect over the other law, the only intention of legislature we can infer is that scheduled offences shall be tried only by a special court, constituted under the Act and not by Sessions Court, referred in Code of Criminal Procedure. Thus, I am of the view that the scheduled offences committed after commencement of the Act or prior to commencement of the Act shall be tried only by the Special Court. 19. It is, thus, clear that the provision of Section 7(1) is procedural in nature. By this provision, no new offence has been created under the Act. Section 7(1) is procedural in nature and no contrary intention has been expressed by the legislature in the Act that Section 7(1) will have prospective effect. In absence of such intention, the provisions of Section 7(1) of the Act will have retrospective effect, Section 7(1) only provided for different forum for trial of scheduled offences. Section 7(1) is procedural in nature and no contrary intention has been expressed by the legislature in the Act that Section 7(1) will have prospective effect. In absence of such intention, the provisions of Section 7(1) of the Act will have retrospective effect, Section 7(1) only provided for different forum for trial of scheduled offences. Not only that, the expression of the legislature that scheduled offences shall be triable only by a special court, made it clear, the intention of the legislature that all the cases which have been specified in the schedule, whether committed before commencement of the Act or after the commencement of the Act, will not make any difference and all these offences including pending cases, regarding scheduled offences, shall be tried by the special court after commencement of this Act. This will be with the consonance with the object of the Act, that scheduled offences be tried and concluded, as early as possible, by the Special Courts, so that crime-in dacoity affected area be curbed. 20. In the 'light of above discussions, the question No. 1 is answered in affirmative and held that the provisions of sub-section 1) of Section 7 of the Act has retrospective effect and the scheduled offences pending in trial before any other court, shall be tried by the special court only. As the question No. 1 is answered in affirmative, question No. 2 needs no answer. In view of the answer of question No. 1, I hold that special. court was not justified in sending back the cases which were transferred to it by District and Sessions Judge in exercise of his powers under section. 408 Cr.P.C. 21. In view of the answers to the question referred above, the District Judge is directed to send all pending cases of scheduled offences to the court of Special Judge under the Act for trial of scheduled offences, immediately. It is also directed that if any other similar cases are pending in this court involving the similar issue those cases also be sent to Special Court for trial. 22. A copy of this order be sent to Special Court as well as District and Sessions Judge Dholpur so that the cases of scheduled offences be decided immediately without any further delay.The reference is answered as indicated above.Reference Answered as Above. *******