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2016 DIGILAW 482 (MP)

RAYEES AHMED v. STATE

2016-06-20

SUSHIL KUMAR PALO

body2016
JUDGMENT : 1. Shri Mukhtar Ahmad, learned counsel for the petitioners. Shri Santosh Yadav, learned Panel Lawyer for the respondent/State. Heard finally with the consent of parties. 2. This revision under section 397 read with section 401 of Criminal Procedure Code has been preferred by the petitioners challenging the order dated 5-4-2016 passed by Additional Sessions Judge, Bhopal in S.T. No. 661/2015 whereby the learned trial Court has held that the jurisdiction to try the case under sections 420, 467, 468, 471 of Indian Penal Code is with the Sessions Court. He placed reliance on Ramesh Kumar Soni vs. State of M. P., reported as I.L.R 2013 M. P. 741. 3. The facts of the case are that, Crime No. 157/2006 was registered on 19-7-2006. After investigation, charge-sheet has been filed on 30-7-2007 before the J.M.F.C. for trial. An amendment was made by the Government of M. P that trial under section 467 is triable by Sessions Court. This notification came into effect on 22-2-2008. 4. In the case of Ramesh Kumar Soni vs. State of M. P. (supra), the Hon’ble Apex Court at para No. 8 has 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.” 5. A Co-ordinate Bench of this Court in Rakesh Kumar Dubey vs. State of M. P., reported as 2014(4) M.P.H.T. 69 has aptly held that : “Code of Criminal Procedure, 1973, S. 209 and Schedule I (As amended on 22-2-2008) Penal Code, 1860, SS. A Co-ordinate Bench of this Court in Rakesh Kumar Dubey vs. State of M. P., reported as 2014(4) M.P.H.T. 69 has aptly held that : “Code of Criminal Procedure, 1973, S. 209 and Schedule I (As amended on 22-2-2008) Penal Code, 1860, SS. 420, 467, 468, and 120-B It was alleged that one forged and fabricated Will was executed on 5-1-1993 Charge-sheet filed on 6-10-1998 After a period of sixteen years on 10-4-2014, order of committal was passed by the Magistrate by saying that he has no jurisdiction and offences are triable by the Court of Sessions Against it, this criminal revision Held Schedule I of Criminal Procedure Code was amended from 22-2-2008 According to amended provision such offences are triable by the Court of Sessions Before coming into force of amendment, the case was pending before the Magistrate Amendment has no retrospective effect Hence, matter was remanded back to the Magistrate for trial of the case Criminal revision allowed. ILR 2013 M. P. 741 discussed.” 6. 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 statue is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. 7. The learned Sessions Judge has mis-interpreted the citation of Ramesh Kumar Soni vs. State of M. P. (supra). It is a cardinal principle of construction that every statue is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. 7. The learned Sessions Judge has mis-interpreted the citation of Ramesh Kumar Soni vs. State of M. P. (supra). The Hon’ble Apex Court has held that : “B. Criminal Procedure Code, 1973 (2 of 1974) (Amendment) Act, M. P., 2007 First Schedule Change of Forum Whether Retrospective or Prospective Full Bench of High Court held that all cases pending before the Magistrate on 22-2-2008 remained unaffected by amendment and were triable by J.M.F.C. Held Any amendment shifting the forum of trial has to be on principle of retrospective in nature in absence of any indication in the amendment Act to the contrary, although proceedings concluded under the old law cannot be reopened for the purpose of applying the new procedure Right of forum is not recognized as vested right Judgment of Full Bench that amended provision to be applicable to pending eases is not correct on principle Decision rendered by Full Bench overruled.” 8. In the present case, the amendment made on 22-2-2008 with regard to jurisdiction of the Sessions Court to try offence punishable under sections 420, 467, 468 of Indian Penal Code came into force from the date of notification i.e. 22-2-2008. It is not mentioned that amendment will be applicable retrospectively. 9. In the light of the aforesaid, the learned trial Magistrate was absolutely wrong to give implication of the amended Act retrospectively. 10. Consequently, as discussed above, it is found that before coming into force of the new amendment, the case was pending for trial before the Magistrate. So in that eventuality, the Magistrate was empowered to try the case. Unfortunately; the learned Magistrate thought it fit to commit the case to the Sessions Court. That being so, the learned Magistrate seems to have committed mistake and the Sessions Judge has also erred in passing the impugned order which warrants interference by this Court under the revisional jurisdiction. Therefore, the orders impugned are not sustainable in law. The same are accordingly set aside. The matter is remanded back to the trial Magistrate for trial of the case in accordance with the law.