Provisions of the Act how far retrospective.

The two accused in the case were committed by the Third Presidency Magistrate, Madras, to take their trial in the High Court Sessions, for offences under section 120-B of the Indian Penal Code, and section 5(2) read with section 5(1)(c) of Act II of 1947 and section 477 read with section 34 of the Indian Penal Code. The offences under section 5(2) read with section 5(1)(c) of Act II of 1947 and section 477, Indian Penal Code are offences triable exclusively by the Sessions Court. The order of commitment was passed on the 8th July, 1952, and the High Court became seized of the case immediately after the order of committal was passed on that day.

On the 28th July, 1952, that is, 20 days after the said order of committal, Act XLVI of 1952 was passed by the Parliament in and by which among other things, the forum for the trial of certain offences, one of which is the offence under section 5(2) of Act II of 1947 was altered. Section 7 of the Act is as follows:

“(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, (Act V of 1898), or in any other law, the offences specified in sub-section (1) of section 6 shall be triable by Special Judges only.

(2) Every offence specified in sub-section (1) of section 6 shall be tried by the Special Judge f or the area within which it was committed, or where there are more Special Judges, than one for such area, by such one of them as may be specified in this behalf by the State Government.

(3) When trying any case, a Special Judge may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, be charged at the same trial.”

It will thus be seen that the said offence under section 5(2) of Act II of 1947 is triable by a Special Judge only, who is to be appointed by the State Government. Section 8 provides for the procedure and powers of Special Judges in the trial of such offences. Under that section a Court of the Special Judge shall be deemed to be a Court of Sessions trying the case without a Jury or without the aid of assessors. Section 6 of the Act (XLVI of 1952) provides that the State Government may., by notification in the official Gazette, appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification. The State has accordingly by notification No. 918, dated 25th August, 1952, in G. O. Ms. No.3100 (Home) appointed the Sessions Judge of Chingleput as a Special Judge not only for the district of Chingleput but also for the area covering the local, limits of the original jurisdiction of the High Court of Madras.

It is now contended that section 7 of the Act (XLVI of 1952) is retrospective in its operation and after the said enactment the High Court has no jurisdiction to try the offences under section 5(2) of Act II of 1947 and that is triableonly by-the Sessions Judge of Chingleput. It is well-settled that:

“no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication”.

It is equally well-settled that a statute which affects the procedure only is retrospective and:

“no one has any vested right in any course of procedure. He has only a right of prosecution or defence in the manner prescribed for the time being by or for the Court in which he sues and if an Act of Parliament alters that mode of procedure he has no other right than to proceed according to the altered mode.”

The question now is whether the trial of the accused in this Court relates to a vested right or a right in existence on the date of the enactment of Act XLVI of 1952 or to mere matter of procedure. In Colonial Sugar Refining Co. v. Irving1; the question was whether a suitor could be deprived of a right of appeal to the Privy Council which he had on the date he instituted the suit by a subsequent change in the law and it was held he could not be deprived. Lord Mac