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2014 DIGILAW 751 (MP)

Rakesh Kumar Dubey v. State of M. P.

2014-07-02

B.D.RATHI

body2014
ORDER Rathi, J. -- 1. Present revision has been preferred by the petitioner under section 397/401 of the Code of Criminal Procedure (in short CrPC) assailing the order of the committal passed by the Judicial Magistrate First Class, Dabra, district Gwalior in exercise of powers under section 209 of CrPC in a Criminal Case No.904/2006 on dated 10.4.2014. 2. As per prosecution story, one written complaint was filed on 5.8.1993 to the Director General of Police, Bhopal stating therein that Umadevi W/o Rakesh Kumar Dwivedi had executed one forged and fabricated Will dated 5.1.1993 in respect to the property situated at Dabra which was under the ownership of Keshav Dayal Sharma. This Will was executed by Umadevi who is daughter-in-law of said Keshav Dayal Sharma. On the date of execution of the aforesaid Will, Keshav Dayal was stated to be ill and under treatment and the Will was allegedly executed with the help of other co-accused, namely, Shivshankar, Kaushal Kishore, Ramashankar, Narendra Nath including the present petitioner Rakesh Kumar Dubey. On the basis of complaint, Crime No.166/95 was registered at Police Station Dabra, district Gwalior for the offences punishable under sections 420, 467, 468, 471 read with section 120B of IPC. After completion of investigation, charge-sheet was filed in the trial Court and on 6.10.1998 charge against the petitioner/accused was framed for commission of offence punishable under sections 420, 467, 468 and 120-B of I.P.C. Photocopy of the chargesheet has been enclosed with this petition marked Annexure-P/3. Thereafter, after a period of sixteen years on 10.4.2014, the order of committal was passed by the learned Magistrate by saying that he has no jurisdiction and the offences committed are exclusively triable by the Court of Sessions. Being aggrieved by the aforesaid order, the present revision has been moved to this Court. 3. Learned counsel for the petitioner contended that the order impugned is not sustainable in the eyes of law. It is submitted that in this case, the prosecution against the accused-petitioner stood launched soon after registration of the FIR against the accused-petitioner on 4.4.1995 and on completion of the investigation,chargesheet was filed on 6.10.1998, but the learned Magistrate on applying his own interpretation concluded that in the light of the new Amendment which came into force from 22nd February, 2008, he has no jurisdiction to try with the offences, but are exclusively triable by the Court of Sessions. It is submitted that the said approach of the Magistrate has no footing and at the threshold, the order is liable to be set aside. Learned counsel contended that in similar facts, the Hon. apex Court has dealt with impact of coming into force the amendment in the case Ramesh Kumar Soni v. State of M.P. reported in I.L.R.[2013] M.P.741. On the aforesaid premises, it is prayed that the revision be allowed and the order be set aside. 4. Learned Public Prosecutor for the respondent No.1/State, on the other hand, supported the findings of the trial Magistrate and prays for dismissal of the revision. 5. Having regard to the submissions put forth by the learned counsel for the parties, entire case has been perused. 6. It is pertinent to mention here that in the impugned order dated 10.4.2014, it was mentioned by the trial Court that co-accused Ramashankar Bhatnagar was discharged by the First Additional Sessions Judge in Case No.251/98 vide order dated 10.6.1999. Similarly, it was also pointed out that co-accused Narendranath had died on 25.12.2009. In para 5 of the order impugned it was also mentioned that though charges were framed but evidence has not been recorded and therefore in view of the amended provisions of CrPC, this case is being committed to the Court of Sessions. 7. Hence, the question involved in this case for consideration before this Court is whether the amended provision which came into force from 22nd February 2008 in the Schedule-I of the CrPC has retrospective effect or not ?. 8. The answer to the aforesaid question is primarily based on the language of the amended provision in which it is couched. It is open to the Legislature to enact laws which have retrospective operation and the Courts are not supposed to ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the Legislature. Such retrospective effect can be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Such retrospective effect can be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Here in this case, Amendment in regard to Sessions Court’s jurisdiction of trial for offences punishable under sections 420, 467, 468 of IPC came into force with effect from 22.2.2008. It was not mentioned that Amendment will be applicable retrospectively. In the light of the aforesaid, the learned trial Magistrate was absolutely wrong to give implication of the Amended Act retrospectively while committing the case to the Court of Sessions after lapse of sixteen years. 9. Apart the aforesaid, the Hon. apex Court facing the same situation in case of Ramesh Kumar Soni (supra) in para 8, specifically laid down that the case having been instituted under the Amendment Act had taken effect, there was no need to look for any provision in the Amendment Act for determining whether the amendment was applicable even to pending matters as on the date of the amendment no case had been instituted against the appellant nor was it pending before any Court to necessitate a search for any such provision in the Amendment Act. 10. Thus, the question raised in this case gets a complete answer from the ratio of the aforesaid decision of Hon. apex Court. As discussed above, in the present case, it is found that before coming into force the new Amendment Act, the case was pending before the trial Magistrate, so in that eventuality the Magistrate was empowered by the law to try with the case, but unfortunately, learned Magistrate thought it fit to commit the case to the Court of Sessions. In view of the aforesaid, the learned Magistrate seems to have committed gross mistake, warranting interference by this Court under the revisional jurisdiction. In the opinion of this Court, therefore the order impugned is not sustainable in law. It is accordingly set aside. The matter is remanded back to the trial Magistrate for trial of the case as per the provisions of law.