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SUPREME COURT OF INDIA
T.S. THAKUR AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.
RAMESH KUMAR SONI - Appellants.
VERSUS
STATE OF MADHYA PRADESH - Respondent
Criminal Appeal No. 353 of 2013 (Arising out of S.L.P. (Crl.) No.5663 of 201)
Decided On : 26-2-2013.
Indian Penal Code,1860 - Sections 408, 420, 467, 468 and 471 - Criminal Procedure Code, 1973 - Section 190 - Prevention of Corruption Act, 1947 - Section 5(3) – punishable - charge-sheet - appellant could be tried only by the Court of Sessions. That view has been affirmed by the High Court of Madhya Pradesh at Jabalpur in a criminal revision petition filed by the appellant against the order passed by the Trial Court. The factual matrix in which the controversy arises may be summarised Crime for commission of offences punishable under Sections 408, 420, 467, 468 and 471 of the IPC was registered against the appellant on 18th May, 2007, at Bheraghat Police Station. On the date of the registration of the case the offences in question were triable by a Magistrate of First Class in terms of the First Schedule of Code of Criminal Procedure, 1973. That position underwent a change on account of the Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007 introduced by Madhya Pradesh Act 2 of 2008 which amended the First Schedule of the 1973 Code and among others made offences under Sections 467, 468 and 471 of the IPC triable by the Court of Sessions instead of a Magistrate of First Class. The amendment received the assent of the President on 14th February, 2008 and was published in Madhya Pradesh Gazette (Extraordinary) on 22nd February, 2008. Consequent upon the amendment aforementioned, the Judicial Magistrate, First Class appears to have committed to the Sessions Court all cases involving commission of offences under the above provisions. In one such case the Sessions Judge, Jabalpur, made a reference to the High Court on the following two distinct questions –Held, prospective declaration of law is a devise innovated by the apex court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a devise adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public interest. Therefore, the subordinate forums which are legally bound to apply the declaration of law made by this Court are also duty-bound to apply such dictum to cases which would arise in future only. In matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty bound to apply such dictum to cases which would arise in future. Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation.” doctrine of "prospective overruling" was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of "prospective overruling" the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of "prospective overruling" is left to the discretion of the court to mould with the justice of the cause or the matter before the court - appeal dismissed
JUDGMENT
T.S. Thakur, J.:-
Leave granted.
2. The short question that falls for determination in this appeal is whether the appellant could be tried by the Judicial Magistrate, First Class, for the offences punishable under Sections 408, 420, 467, 468 and 471 of the IPC notwithstanding the fact that the First Schedule of the Code of Criminal Procedure, 1973 as amended by Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007, made offences punishable under Sections 467, 468 and 471 of the Penal Code triable only by the Court of Sessions. The Trial Court of 9th Additional Sessions Judge, Jabalpur has answered that question in the negative and held that after the amendment the appellant could be tried only by the Court of Sessions. That view has been affirmed by the High Court of Madhya Pradesh at Jabalpur in a criminal revision petition filed by the appellant against the order passed by the Trial Court. The factual matrix in which the controversy arises may be summarised as under:
3. Crime No.129 of 2007 for commission of offences punishable under Sections 408, 420, 467, 468 and 471 of the IPC was registered against the appellant on 18th May, 2007, at Bheraghat Police Station. On the date of the registration of the case the offences in question were triable by a Magistrate of First Class in terms of the First Schedule of Code of Criminal Procedure, 1973. That position underwent a change on account of the Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007 introduced by Madhya Pradesh Act 2 of 2008 which amended the First Schedule of the 1973 Code and among others made offences under Sections 467, 468 and 471 of the IPC triable by the Court of Sessions instead of a Magistrate of First Class. The amendment received the assent of the President on 14th February, 2008 and was published in Madhya Pradesh Gazette (Extraordinary) on 22nd February, 2008. Consequent upon the amendment aforementioned, the Judicial Magistrate, First Class appears to have committed to the Sessions Court all cases involving commission of offences under the above provisions. In one such case the Sessions Judge, Jabalpur, made a reference to the High Court on the following two distinct questions of law:
1. Whether the recent amendment dated 22nd February, 2008 in the Schedule-I of the Cr.P.C. 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 Sessions or should be remanded back to the Magistrate First Class for further trial?
4. A Full Bench of the High Court of Madhya Pradesh in Re: Amendment of First Schedule of Criminal Procedure Code by Criminal Procedure Code (M. P. Amendment) Act, 2007 2008 (3) MPLJ 311, answered the reference and held that all cases pending before the Court of Judicial Magistrate First Class as on 22nd February, 2008 remained unaffected by the amendment and were triable by the Judicial Magistrate First Class as the Amendment Act did not contain a clear indication that such cases also have to be made over to the Court of Sessions. The Court further held that all such cases as were pending before the Judicial Magistrate First Class and had been committed to the Sessions Court shall be sent back to the Judicial Magistrate First Class in accordance with law. The reference was answered accordingly.
5. Relying upon the decision of the Full Bench the appellant filed an application before the trial Court seeking a similar direction for remission of the case for trial by a Judicial Magistrate. The appellant argued on the authority of the above decision that although the police had not filed a charge-sheet against the appellant and the investigation in the case was pending as on the date the amendment came into force, the appellant had acquired the right of trial by a forum specified in Schedule I of the 1973 Code. Any amendment t
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