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2013 Supreme(MP) 115
SUPREME COURT OF INDIA
T.S. Thakur and Fakkir Mohamed Ibrahim Kalifulla, JJ.
Ramesh Kumar Soni v. State of M.P.
Criminal Appeal No.353 of 2013 : against the judgment and order of M.P. High Court, Jabalpur, passed in Criminal Revision No.713 of 2011; Decided on 26.2.2013.
Ms. June Chaudhary with Ms. Sumeeta Chaudhari, Prabhat Kumar, Anshuman Ashok and Dr. Kailash Chand for appellant.
Headnote:(1) Penal Code, 1860 -- Ss.408, 420, 467, 468 and 471 -- Criminal P.C., 1973 -- First Schedule and S.190 -- Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007 -- S.4 -- any amendment shifting the forum of trial will be retrospective in nature in the absence of any indication in the Amendment Act to the contrary -- claim for vested right of forum cannot be made -- amended provision applicable to pending cases also -- submission of charge-sheet before the Magistrate tantamount to institution of the case -- case cannot be considered as pending before that.
The amendment to the Criminal Procedure Code in the instant case has the effect of shifting the forum of trial of the accused from the Court of Magistrate First Class to the Court of Sessions. Apart from the fact that as on the date the amendment came into force no case had been instituted against the appellant nor the Magistrate had taken cognizance against the appellant, any amendment shifting the forum of the trial had to be on principle retrospective in nature in the absence of any indication in the Amendment Act to the contrary. The appellant could not claim a vested right of forum for his trial for no such right is recognised. AIR 1964 SC 1541, (1996)3 SCC 252, (1980)2 SCC 91, (1975)2 SCC 840, (1994)4 SCC 602, (2006)1 SCC 141, AIR 1970 SC 1636 and AIR 1958 SC 915 relied on. AI/R 1967 SC 1419, (1996)8 SCC 388 and JT 2002(10) SC 271 distinguished. 2008(2) JLJ 265 (FB) overruled prospectively.
(2) Practice -- decisions can be overruled prospectively to avoid unnecessary hardship and anomalies. AIR 1967 SC 1643, JT 1997(4) SC 251, (1999)3 SCC 362, (2001)9 SCC 550, JT 2003(1) SC 607 and (2009)4 SCC 299 relied on. [Para 19
¼1½ naM lafgrk] 1860 && /kkjk 408] 420] 467] 468 rFkk 471 && naM izfdz;k lafgrk] 1973 && izFke vuqlwph rFkk /kkjk 190 && naM izfdz;k lafgrk ¼e/; izns'k la'kks/ku½ vf/kfu;e] 2007 && /kkjk 4 && fopkj.k ds Qksje dks ifjofrZr djus okyk dksbZ Hkh la'kks/ku] la'kks/ku vf/kfu;e esa fdlh izfrdwy min'kZu ds vHkko esa izd`fr esa Hkwry{kh gksxk && Qksje ds fufgr vf/kdkj ds fy, nkok ugha fd;k tk ldrk && la'kksf/kr mica/k yafcr ekeyksa ij Hkh ykxw && eftLVªsV ds le{k vkjksi&i= dh izLrqfr ekeys ds lafLFkr gksus ds rqY; && blds iwoZ ekeys dks yafcr ugha ekuk tk ldrkA
vfHkfu/kkZfjr % izLrqr ekeys esa naM izfdz;k lafgrk esa la'kks/ku dk vfHk;qDr ds fopkj.k ds Qksje dks izFke Js.kh eftLVªsV ds U;k;ky; ls ls'ku U;k;ky; esa ifjofrZr djus dk izHkko gSA bl rF; ls i`Fkd~ fd ftl fnukad dks la'kks/ku izo`Rr gqvk u rks vihykFkhZ ds fo:) dksbZ ekekyk lafLFkr gqvk Fkk u gh eftLVªsV us vihykFkhZ ds fo:) laKku fy;k Fkk] fopkj.k ds Qksje dks ifjofrZr djus okys fdlh la'kks/ku vf/kfu;e esa fdlh izfrdwy min'kZu ds vHkko esa fl)karr% izd`fr esa Hkwry{kh gksuk FkkA vihykFkhZ vius fopkj.k ds fy, Qksje ds fofgr vf/kdkj dk nkok ugha dj ldrk Fkk D;ksafd ,sls fdlh vf/kdkj dh ekU;rk ugha gSA , vkb vkj 1964 ,l lh 1541] ¼1976½3 ,l lh lh 252] ¼1980½2 ,l lh lh 91] ¼1975½2 ,l lh lh 840] ¼1994½4 ,l lh lh 602] ¼2006½1 ,l lh lh 141] , vkb vkj 1970 ,l lh 1636 rFkk , vkb vkj 1958 ,l lh 915 voyafcrA , vkb vkj 1967 ,l lh 1419] ¼1996½8 ,l lh lh 388 rFkk ts Vh ¼2002½10 ,l lh 271 izHksfnrA 2008¼2½ ts ,y ts 265 ¼iw.kZ U;k;ihB½ Hkfo";y{kh izHkko ls myVk x;kA
¼2½ izFkk && vuko';d tfVyrk rFkk fo"kerkvksa ls cpus ds fy, fofu'p;ksa dks Hkfo";y{kh izHkko ls myVk tk ldrk gSA , vkb vkj 1967 ,l lh 1643] ts Vh 1997¼4½ ,l lh 251] ¼1999½3 ,l lh lh 362] ¼2001½9 ,l lh lh 550] ts Vh 2003¼1½ ,l lh 607 rFkk ¼2009½4 ,l lh lh 299 voyafcrA ¼iSjk 19
Thakur, J. -- 1. 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 CrPC 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(2) JLJ 265=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 am
