Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 1113 (MP)

IN REFERENCE v. STATE OF M. P.

2015-10-16

N.K.GUPTA, SHANTANU KEMKAR

body2015
JUDGMENT : SHANTANU KEMKAR, J. 1. The following question has been referred under section 395(2) of Code of Criminal Procedure, 1973 (for short the "Cr.P.C.") by Sessions Judge, Dewas for decision of this Court :- 2. Briefly stated by amendment of First Schedule of the Criminal Procedure Code by Criminal Procedure Code (M.P. Amendment) Act, 2007 which came into force w.e.f. 22-2-2008 the offences punishable under sections 467, 468 and 471 of the Indian Penal Code have been made triable only by the Court of Sessions instead of Judicial Magistrate First Class. In the process of transferring the criminal cases of the said offences pending in the court of Judicial Magistrate First Class to the Sessions Court, following two questions of law were referred to this Court by the Sessions Judge, Jabalpur under section 395(2) of the Criminal Procedure Code for its decision :- "1. Whether the recent amendment dated 22nd February, 2008 in the Schedule-I of the Criminal Procedure Code is to be applied retrospectively ? 2. Consequently, whether the cases pending before the Magistrate First Class in which evidence partly or wholly has been recorded, and now have been committed to this Court are to be tried de-novo by the Court of Session or should be remanded back to the Magistrate First Class for further trial ?" 3. The said questions were decided by a Full Bench of this Court in In Reference : Amendment of First Schedule of Criminal Procedure Code By Criminal Procedure Code (M. P. Amendment) Act, 2007, M.Cr.C. No.4548 of 2008 vide order dated 13-5-2008 [ (2008) 3 MPHT 535 (FB)]. The operative paragraph of the order of the Full Bench reads as under : "6. In view of the aforesaid law laid down by the Supreme Court, we are of the considered opinion that all cases pending in the Court of Judicial Magistrate First Class as on 22-2-2008 are not affected by the Amendment and will be continued to be tried by the Judicial Magistrate First Class because there is no provision in the Amendment or no clear indication in the Amendment that pending case before the Judicial Magistrate First Class are to be made over to the Court of Sessions. All cases which were pending before the Judicial Magistrate First Class as on 22-2-2008 if, in the meanwhile, committed to the Court of Sessions will be sent back to the Judicial Magistrate First Class for trial in accordance with law. We answer the reference accordingly. The reference made by the learned Sessions Judge Jabalpur as also the reference made by the learned Additional Sessions Judge, Indore are disposed of." 4. The aforesaid order passed by the High Court was assailed before the Supreme Court in the case of Ramesh Kumar Soni vs. State of M. P., AIR 2013 SC 1896 . The Supreme Court overruled the order of the Full Bench by making following observations : "19. The upshot of the above discussion is that the view taken by the Full Bench holding the amended provision to be applicable to pending cases is not correct on principle. The decision rendered by the Full Bench would, therefore, stand overruled but only prospectively. We say so because the trial of the cases that were sent back from Sessions Court to the Court of Magistrate First Class under the orders of the Full Bench may also have been concluded or may be at an advanced stage. Any change of forum at this stage in such cases would cause unnecessary and avoidable hardship to the accused in those cases if they were to be committed to the Sessions for trial in the light of the amendment and the view expressed by us. 20. The principle of prospective overruling has been invoked by this Court, no matter sparingly, to avoid unnecessary hardship and anomalies. That doctrine was first invoked by this Court in I. C. Golak Nath and ors. vs. State of Punjab and ors., AIR 1967 SC 1643 followed by the decision of this Court in Ashok Kumar Gupta and anr. vs. State of U. P. and ors. (1997) 5 SCC 201 . 25. The present case, in our opinion, is one in which we need to make it clear that the overruling of the Full Bench decision of the Madhya Pradesh High Court will not affect cases that have already been tried or are at an advanced stage before the Magistrates in terms of the said decision. 26. With the above observations, this appeal fails and is hereby dismissed." 5. 26. With the above observations, this appeal fails and is hereby dismissed." 5. In view of the aforesaid observation made by the Supreme Court in paragraph 25 the learned Sessions Judge, Dewas made this reference seeking decision of this Court as to what is meant as an advanced stage of case before the Magistrate for transferring it to the Sessions Court. 6. On a plain reading of the judgment of Supreme Court in the case of Ramesh Kumar Soni (supra) it is clear that the Supreme Court has held that the Full Bench decision of the Madhya Pradesh High Court will not affects the cases that have already been tried or are at an advanced stage before the Magistrate in terms of the said decision. The Supreme Court has observed that any change of forum at advanced stage of cases would cause unnecessary and avoidable hardship to the accused in those cases if they were to be committed to the Sessions for trial in the light of the amendment. 7. We have heard both the learned amicus curiae and the learned Senior Counsel in the matter. They are one on the point that the advanced stage of the case would come after framing of the charge by the Magistrate. In support of this submission they placed reliance on the judgment of Supreme Court in the case of State of U.P. vs. Shambhu Nath Singh and others, (2001) 4 SCC 667 , Satish Mehra vs. State of N.C.T of Delhi and another, (2012) 13 SCC 614, Gurnaib Singh vs. State of Punjab, (2013) 7 SCC 108 . 8. In the case of State of U. P. vs. Shambhu Nath Singh (supra) the Supreme Court while examining the provision of section 309 of the Criminal Procedure Code regarding power to postpone or adjourn proceedings had observed as under :- "11. The first sub-section mandates on the trial courts that the proceedings shall be held expeditiously but the words as expeditiously as possible have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of witnesses begins. Even so, the next limb of the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of witnesses begins. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub-section by using the words as expeditiously as possible, has chosen to make the requirement for the next stage (when examination of witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is that such examination shall be continued from day to day until all the witnesses in attendance have been examined. The solitary exception to the said stringent rule is, if the court finds that adjournment beyond the following day to be necessary the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when witnesses are in attendance before the Court. In such situation the court is not given any power to adjourn the case except in the extreme contingency for which the second proviso to sub-section (2) has imposed another condition, provided further that when witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing." (Emphasis supplied) 9. In the case of Satish Mehra vs. State of N.C.T of Delhi and another (supra) the Supreme Court had occasion to deal with the power of Courts to interdict a proceeding either at the threshold or at an intermediate stage of the trial. The Supreme Court had observed that "the power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused" 10. In the case of Gurnaib Singh vs. State of Punjab (supra) the Supreme Court reiterated its view in the case of State of U. P. vs. Shambhu Nath Singh (supra) that the advanced stage of trial is when the examination of witnesses begins. 11. In view of the aforesaid pronouncements of the Supreme Court and the categorical observation made by it in the above cases there is no difficulty in answering the reference by holding that the advanced stage of the case before the Magistrate for transferring cases to the Court of Sessions in view of the Amendment in the Criminal Procedure Code is the stage when the examination of the witnesses begins. 12. As a result we observe that the cases in which the examination of witnesses has already begun will remain unaffected by the amendment dated 22-2-2008 in the Schedule-I of the Criminal Procedure Code and they will be tried by the Magistrate in terms of the order passed by the Supreme Court in the case of Ramesh Kumar Soni (supra). 13. The reference is answered accordingly. 14. Before parting we place our appreciation on record for the able assistance given by both the learned amicus-curaie appointed by this Court, the learned Senior Counsel and the counsel who appeared with them.