The right to discharge under Section 207-A of the CrPC is not a mere procedural right, but a right that affects the rights of the accused, and cannot be taken away by a procedural amendment.

DEBABRATA MOOKERJEE, J. :- This Rule raises the question whether certain proceedings in commitment should be held under the provisions of Sec. 207-A of the Code of Criminal Procedure or under Sec. 208 and the succeeding sections of Chapter XVIII of the Code.

2. Consequent on an information lodged at the Burtolla Police Station that about five Sikhs had on the 16th of December, 1957, forcibly abducted a man named Gobinda Prosad Banerjee, since deceased, from his house and taken him away in a taxi, an investigation followed which resulted in a charge-sheet against these petitioners. The charge-sheet was submitted on the 24th of April, 1958 and it purported to be one under Sec. 173 of the Code.

3. Question arose before the learned Magistrate holding the enquiry under Chapter XVIII, whether the inquiry was to be held under the new provision contained in Sec. 207 A or under Sec. 208 and the sections that follow. The question became pertinent by reason of the extension of Sec. 156 of the Code, during the progress of the investigation which had commenced at a time when the section did not apply to the police in the town of Calcutta.

4. Sub-section (2) of Sec. 1 of the Code provides that nothing contained in it shall apply to the Commissioner of Police or the police in the town of Calcutta; but a proviso attached to the sub-section says that the State Government may, if it thinks fit, extend any of the provisions of the Code to the persons excepted from its operation.

5. By notification No. 577-J, dated the 25th of January, 1956, Sections 154, 161, 162, 163, 172 and 173 of the Code were Extended by the State Government to the police in the town of Calcutta; but Sec. 156 which gives power to the police to investigate into cognizable offences was not included in the notification. The result was an anomaly. This question came up for consideration in the case of Manik Chand v. The State, 62 Cal WN 94 : (AIR 1958 Cal 324). It decided that the police in the town of Calcutta having been empowered under section 156 to make any investigation in respect of cognizable offences, could not make any investigation under Chapter XIV; consequently they could not make any report under Sec. 173, and that being so, in no case instituted on a report by the Calcutta police could S. 207-A apply since under the clear words of that section the condition precedent to its applicability was the receipt of a report under S. 173.

6. This defect was remedied by an amendment of the notification referred to above. The new notification bearing No. 1384-J dated the 24th February, 1958, sought to amend the previous one by adding two sections, namely, Secs. 155 and 156 to those already extended to the police in the town of Calcutta. The obvious purpose was to provide for power to the Calcutta police to investigate into cognizable and non-cognizable offences.

7. Turning to the facts of this case, it appears that although the Calcutta police did not have the power under Sec. 156 extended to them at the commencement of the investigation, they acquired it during its progress. Consequently a part of the investigation had been made not under the Code but under whatever other powers they possessed under other laws. But when the charge-sheet was submitted they had already been given the power by the amending notification and therefore, they claimed that the report was one under Sec. 173 which would attract the operation of Sec. 207-A of the Code.

8. On behalf of the petitioners Mr. Dutta has contended that a major part of the investigation not having been held under the Code, the amending notification cannot have the effect of making the investigation an investigation under Chapter XIV. The consequence was that the report would not be one under Sec. 173 and that being so. Section 207-A would not apply. It has then been contended that the amending notification could have no retrospective effect : and lastly where a right like the right to be discharged from the proceedings is a