Zeba vs State and ors.

A question of Saw has been referred to us in this revision petition which has been formulated as under :

What is the effect of the recent amendments in the Code of Criminal Procedure, which became effective from 141979, on the cases previously committed and pending before the court of Sessions ?

A Challan under Section 302/447/147 R. P. C. was put up against the accused respendents Nos 2 to 6, herein, in the court of Judl. Magistrate,

Pulwama, on 6121977. He charge sheeted the accused persons and committed them to stand their trial before Sessions Judge, Pulwamma, for offences under Sections 304(1) 447147 R. P. C. Mst Zeeba, the petitioner, who is the widow of the deceased, alleged to be the victim of the

crime, has assailed this order on the ground that the discharge of the acccused persons under Section 302 R. P. C. is unwarranted which resulted in miscarriage of justice. When this revision petition came up for hearing before one of us, a contention was raised on behalf of the Petitioner that the Code of Criminal Procedure heving been amended in the meantime and procedural law being retreactive in operation the charges framed by the Committing Magistrate could not be sustained when the power to frame charge under the amended Code vested in the Sessions Judge alone,

moreso, when there was no clause in the Amending Act saving the orders passed by the Committing Magistrate under the old procedure. It was in these circumstances that the aforesaid question was referred to a larger bench for an authoritative Pronouncement.

It is well settled that a law which is procedural in character is retrespective in operation. That, however, does not mean that whatever has been

done under the old law, is undone by any subsequent amendment in the procedure. Section 6 of the General Clauses Act provides that where any

Act repeals any enactment, then unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect or effect the previous operation of any enactment so repealed or anything duly done or suffered there under. The

Committing Magistrate, when he framed the charges had undoubtedly jurisdiction to do so, as the Amending Act had not by then come into force.

It came into force only thereafter i.e. 141979. It is, therefore, obvious that the charges framed by him cannot be questioned on the ground that the procedure having been subsequently changed, the charges framed by him ceased to survive. In saying so we are supported by a Supreme court

decision, viz Nani Gopai Mitra Versus State of Bihar (A. I. R. 1970 Supreme Court, 1636) where it was held :

The effect of the application of this principle is that pending cases, although instituted under the old Act but still pending, are governed by the new procedure under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case, the trial of the appellant was taken up by the Special Judge, Santhal, Parganas,

when Section 5(3) of the Act, The convication of the appellant was pronounced on March 31, 1962, by the Special Judge, Santhal Parganas, long before the amending Act was promulgated. It is not hence possible to accept the argument of the appellant that the conviction pronounced by the

Special Judge, Santhal, Parganas, has become illegal or in any way defective in law because of the emendment to procedural law made on

December 18, 1964. In our opinion, tr/e High Court was right in invoking the presumption under Section 5(3) of the Act even though it was repealed on December 18, 1964, by the Amending Act. We accordingly reject the argument of the apPellant on this aspect of the case.

This disposes of the question referred to us.

So far as the revision against the order of discharge of the accused under Section 302 R. P. C. is concerned, we are not inclined to interefere

with the order of the magistrate at this stage, merese, when the Sessions Judge, has himself the power to amend or alter the charge under Section

227 Cr. P. C.

The petitioner can urge this point before the Sessions Judge, who is seized of the case and we, in these circumstances, do not think it proper to

exercise our discretionary powers in the matter. The revision petition is disposed of accordingly.