22 May 1958
Supreme Court
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ANANT GOPAL SHEOREY Vs THE STATE OF BOMBAY

Case number: Appeal (crl.) 178 of 1957


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PETITIONER: ANANT GOPAL SHEOREY

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 22/05/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER

CITATION:  1958 AIR  915            1959 SCR  919

ACT: Criminal  trial-Amendment  in procedure during  pendency  of trial-If  retrospective-Code  of Criminal  Procedure  (V  of 1898), S. 342 A-Criminal Procedure Code (Amendment) Act  (26 of 1955),s. 116.

HEADNOTE: A  complaint  was  filed against the  appellant  on  January 13,1953, and the Special Magistrate trying him commenced the recording of evidence on July 4, 955.  During the trial  the Criminal  Procedure  Code (Amendment) Act (26 of  955)  came into force on January 2, 1956, which introduced s. 342 A  in the  Code  of  Criminal Procedure.  The  appellant  made  an application  to the Magistrate claiming the right to  appear as a witness on his own behalf under s. 342 A in disproof of the  charges made against him.  The Magistrate rejected  the application on the ground that S. 342 A could not be applied to  pending  proceedings  which would be  according  to  the procedure laid down in the unamended Code: Held, that on a plain construction of s. ii6 of the amending Act  which provided for procedure to be followed in  pending cases S. 342 A was clearly applicable in such cases.   Under the  general  law  also  a  change  in  procedure   operates retrospectively.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 178  of 1957. 117 920 Appeal  by special leave from the order dated May 28,  1956, of the former Nagpur High Court in Criminal Revision No. 150 of 1956 arising out of the order dated February 2, 1956,  of Shri K. L. Pandey, Special Magistrate at Nagpur in  Criminal Case No. I of 1955. R.   Patnaik, for the appellant. S.   N. Bindra and R. H. Dhebar, for the respondent. 1958.  May 22.  The Judgment of the Court was delivered by KAPUR J.-This is an appeal against the judgment and order of

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the  High  Court of Nagpur confirming the  decision  of  the Special  Magistrate  disallowing  the  application  of   the appellant to give evidence as a witness under s. 342A of the Criminal Procedure Code. The Advocate-General of Madhya Pradesh, on January 13, 1953, filed  a  complaint against the appellant and  three  others under  s.  282 of the Indian Companies Act and ss.  465  and 477A of the Indian Penal Code.  The proceedings commenced in 1954  before  a Magistrate but on May 18,  1955,  they  were transferred  to  a  Special  Magistrate  who  commenced  the recording of evidence on July 4, 1955.  On August 12,  1955, the  Criminal  Procedure Code (Amendment) Act (26  of  1955) received the assent of the President and came into force  on January 2, 1956.  In this judgment it will be referred to as the  Amending Act and the Code of Criminal Procedure as  the Code.    On  January  14,  1956,  the  appellant   made   an application  to the Magistrate claiming the right to  appear as a witness on his own behalf under s. 342A of the  amended Code  "in  disproof of the charges made against him  ".  His application  was  dismissed and so was his revision  to  the High Court of Nagpur which held: "  While it must be conceded that the wording of clause  (c) as also the other clauses of section 116 of the amending Act could have been put in simpler and more direct language, its ingenuous  circumlocution  cannot be allowed to  cloak.  its true  meaning  or  to  permit  the  construction  which  the applicant seeks to 921 put upon it.  The language used doe,-, not justify hold  ing that  when the statute says " this Act it means only "  some of the provisions of this Act Thus the High Court was of the opinion  that  the proceedings pending  before  the  Special Magistrate would be according to the procedure laid down  in the  unamended  Code and the appellant could  not  therefore appear as a witness under s. 342A of the amended Code. According to the provisions of the unamedded Code an accused person could not appear as a witness in his defence although for  the  purpose of enabling him to  explain  circumstances appearing  in the evidence against him the Court  could  put such  questions as it considered necessary.  Section 118  of the  Evidence  Act deals with persons who are  competent  to testify as witnesses but in view of s. 342 of the  unamended Code no accused person could appear as a witness and  there- fore s. 118 was inapplicable to such persons.  Article 20(3) of  the Constitution provides that no person accused  of  an offence  shall be compelled to be a witness against  himself and  s.  342A  was inserted into the Code by s.  61  of  the amending Act.  It provides:- S.342A  "  Any  person accused of  an  offence  before  a Criminal Court shall be a competent witness for the  defence and  may  give evidence on oath in disproof of  the  charges made against him or any person charged together with him  at the same trial: Provided that (a)  he shall not be called as a witness except on his own request in writing; or (b)  his failure to give evidence shall not be made the  subject  of any comment by any of the  parties  or  the Court  to give rise to any presumption against  him:self  or any person charged together with him at the same trial." Thus the law was amended and the accused person has become a competent witness for the defence but he cannot be compelled to be a witness and cannot be called as a witness except  at his own request in writing and his failure to give  evidence cannot be

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922 made  the  subject matter of comment by the parties  or  the Court. The  question  that  arises for decision  is  whether  to  a pending prosecution the provisions of the amended Code  have become  applicable.  There is no controversy on the  general principles  applicable to the case.  No person has a  vested right in any course of procedure.  He has only the right  of prosecution or defence in the manner prescribed for the time being  by or for the Court in which the case is pending  and if by an Act of Parliament the mode of procedure is  altered he  has  no  other right than to proceed  according  to  the altered mode.  See Maxwell on Interpretation of Statutes  on p. 225; The Colonial Sugar Refining Co. Ltd. v. Irving  (1). In  other  words a change in the law of  procedure  operates retrospectively and unlike the law relating to vested  right is not only prospective. The  amending  Act  contains provisions  in  regard  to  the procedure to be applied to pending cases in s. 116 which  is as follows:- S.116 " Notwithstanding that all or any of the provisions of this Act have come into force in any State- (a)the  provisions of section 14 or section 30 or  section 145  or section 146 of the principal Act as amended by  this Act  shall  not  apply  to or affect,  any  trial  or  other proceeding  which,  on  the date of  such  commencement,  is pending before any Magistrate and every such trial or  other proceeding shall be continued and disposed of as if this Act had not been passed ; (b)the provisions of section 406 or section 408 or section 409  of the principal Act as amended by this Act  shall  not apply  to, or affect, any appeal which, on the date of  such commencement,  is pending before the District Magistrate  or any  Magistrate  of the First class empowered by  the  State Government to hear such appeal, and every such appeal shall, notwithstanding  the repeal of the first proviso to  section 406  or  of section 407 of the principal Act, be  heard  and disposed of as if this Act had not been passed; (i)(1905) A.C. 369,"372. 923 (c)the  provisions of clause (w) of section 4  or  section 207A or section 251A or section 260 of the principal Act  as amended  by  this  Act shall not apply to,  or  affect,  any inquiry or trial before a Magistrate in which the Magistrate has  begun  to  record evidence prior to the  date  of  such commencement  and which is pending on that date,  and  every such inquiry or trial shall be continued and disposed of  as if this Act had not been passed; (d)the provisions of Chapter XXIII of the principal Act as amended by this Act shall not apply to, or affect, any trial before a Court of Sessions either by jury or with the aid of assessors in which the Court of Sessions has begun to record evidence prior to the date of such commencement and which is pending  on  that  date,  and  every  such  trial  shall  be continued  and  disposed  of as if this  Act  had  not  been passed;  but save as aforesaid, the provisions of  this  Act and  the  amendments made thereby shall apply  to  all  pro- ceedings  instituted after the commencement of this Act  and also to all proceedings pending in any Criminal Court on the date of such commencement." It  was  contended  on behalf of  the  respondent  that  the following words in clause (c) of s. 116 of the amending  Act "  and  every such enquiry or trial shall be  continued  and disposed  of as if this Act had not been passed " mean  that no  provision  of  the Act would be  applicable  to  pending

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trials  and particular stress was laid on the words " as  if this   Act   had  not  been  passed".   If   that   is   the interpretation  to be put then it would be in conflict  with the  last portion of the section i. e. " Save  as  aforesaid the  provisions of this Act and the amendments made  thereby shall   apply  to  all  proceedings  instituted  after   the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement." The language  used in this portion of the section in  regard  to the proceedings which are instituted after the  commencement of  the  amended Code is identical with that  dealing  with -proceedings pending in a Criminal Court on the date of  its commencement.    Therefore  if  this  Act  applies  to   all proceedings which commenced 924 after  the Act came into force they would equally  apply  to proceedings   which  had  already  commenced  except   those provisions which have been expressly excluded.  If the whole section  is  construed in the manner contended  for  by  the respondent  then there will be a conflict between the  words used  in the various clauses and words- used in the main  s. 116  and it is one of the principles of interpretation  that the words should be construed in such a manner as to avoid a conflict.  Thus construed the words of cl. (c) and the words of  the  rest of the s. 116 would mean this  that  the  pro- visions  of  ss.  4 (w), 207A, 251A or 260 of  the  Code  as amended  shall  not  apply or affect any  enquiry  or  trial before  a  Magistrate where the recording  of  evidence  has started  prior  to  the  date of  the  commencement  of  the amending Act and every such enquiry should be continued  and disposed  of  as  if these sections had  not  been  enacted. Except as to this and except as to the provisions  mentioned in  sub-cls.  (a), (b) and (d) the other provisions  of  the amended  Code would be applicable to such proceedings  which is also in accordance with the general principles applicable to amendments in procedural law. By  s.  34  of  the amending Act, s. 251  of  the  Code  was substituted by two sections i. e. 251 and 251A.  Section 251 lays down the procedure in warrant cases.  It provides:- S.   251 " In the trial of warrant cases by Magi. strates,the Magistrate shall,- (a)  in any case instituted on a police report, follow  the procedure specified in section 215A; and (b)  in any other case, follow the procedure specified in the  other provisions of this Chapter." Sub-clause  (a)  deals  with cases instituted  on  a  police report  and sub-cl. (b) with other cases.  To the former  s. 251A is applicable and to other cases procedure specified in other provisions in Chapter 21 is made applicable.   Section 342A  is in Chapter 24 and there is nothing in the  amending Act or the amended Code which makes the provision of s. 342A inapplicable  to  criminal proceeding-,  which  are  pending before  a Magistrate and in which the recording of  evidence has commenced. 925 In  our opinion on the plain construction of the words  used in  s.  116 of the amending Act, s. 342A  available  to  the appellant.   The  High Court, it appears,  was  misled  into construing  the words in clause (c) of s. 116 i. e.  "as  if this Act had not been passed".  The High Court was therefore in  error and the appellant is entitled, in our view,  as  a competent witness for the defence to testify in disproof  of the  charges  made against him or any other  person  charged together with him at the same trial. We would, therefore., allow this appeal, set aside the order

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of  the courts below and hold that the application  made  by the  appellant to appear as a witness was  well-founded  and should have been allowed. Appeal allowed.