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PETITIONER: P. PHILIP

       Vs.

RESPONDENT: THE DIRECTOR OF ENFORCEMENT, NEW DELHI &ANOTHER

DATE OF JUDGMENT03/03/1976

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH UNTWALIA, N.L.

CITATION:  1976 AIR 1185            1976 SCR  (3) 532  1976 SCC  (2) 174

ACT:      Interpretation of  statutes Saving  provision-Words and Phrases-Meaning of  Petition- Criminal  Procedure Code  1973 Sec. 484(2)-(a) Revision application pending before Sessions Court under Cr. P. Code 1898 whether petition.

HEADNOTE:      In February,  1971 the  Director of  Enforcement made a complaint  against   4  accused  for  violation  of  certain provisions of  the Foreign  Exchange Regulations  Act,  read with section 120-B of the Indian Penal Code.      The appellant  herein who  was accused  No. 2  made  an application before  the Trial  Court raising two preliminary objections to  the  maintainability  of  the  complaint  and prayed for  its dismissal.  The Trial  Court by its judgment dated 5-9-1973  dismissed the  application holding  that the points  raised  would  be  considered  after  recording  the evidence. The  appellant filed a Revision Application to the Sessions  Court  under  section  435  of  the  Code  of  Cr. Procedure 1898,  which was  dismissed in  August, 1974.  The appellant filed  a Revision  Application to  the High  Court which was  dismissed by the High Court on the ground that it was not  maintainable in  view of  section 399(3) of the new Code.      In an appeal by Special Leave, the appellant contended:      At the time when the Revision petition was filed before the Sessions  Judge the old Code was in force and in view of section 484  of the  new Code  the  application  had  to  be disposed of  in accordance was the old Code. The respondents on the  other hand, contended that the word ’application’ in section 484(2)  of the  new Code is a word of limited import and that  it would  include only  those  applications  which could be finally disposed of by the Sessions Judge. ^      HELD: The  word ’application’  in the  saving provision immediately follows  the term ’appeal’. It, therefore, takes some colour from the collection of words in which it occurs. It is  synonymous with  the term  ’petition’ which  means  a written statement of material facts, requesting the Court to grant the  relief or  remedy based  on those  facts .   is a peculiar mode of seeking redress recognised by law. There is no doubt  that the  word ’application’ as used in clause (a)

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of section  484 of  the new  Code will  take in  a  revision application made  under section  435 of  the old  Code.  The Revision Application  made  by  the  appellant  was  pending before the Sessions Judge when the new Code came into force. Therefore it  was required  to be  disposed of in accordance with the provisions of the old Code. [534D-F, G-H]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 76 of 1976.      T. C. Raghavan and N. Sudhakaran for the appellant.      Debabrata Mookerjee  and R.  N. Sachthey for respondent No. 1.      The Judgment of the Court was delivered by      SARKARIA, J.  This appeal  by special leave is directed against an  order, dated  July 1, 1975, of the High Court of Kerala, dismissing 533 the Criminal  Revision Petition  filed by  the appellant. It raises   questions    with   regard   to   the   scope   and interpretation, inter alia, of ss. 399 (3) and 484(2) (a) of the Code  of Criminal  Procedure, 1973 (hereinafter referred to as the New Code). The facts are these:      On February  2, 1971  the Director  of Enforcement, New Delhi  made   a  complaint  against  four  accused  persons. alleging the  commission of  offences under  s. 120-B, Penal Code and  s. 5(1)  (aa) and  B;  5(1)  (c)  of  the  Foreign Exchange Regulation Act, 1947 (for short, called the Act) in the Court of the District Magistrate, Ernakulam.      The  appellant   herein  was  accused  No.  2  in  that complaint. By an application he raised two objections to the maintainability  of   the  complaint   and  prayed  for  its dismissal. First,  the opportunity  as  required  under  the proviso to s. 23 (3) of the Act was not given to the accused for showing  that he had permission from the Reserve Bank of India  for   doing  the   alleged  acts.  Second,  that  the complainant did  not  comply  with  the  conditions  in  the proviso to s. 23D (1) of the Act, in as much as there was on additional material  before him  to come  to the  conclusion that the  penalty which  he is  empowered to impose under s. 23, would  not be  adequate and  that consequently,  it  was necessary to file a complaint in Court. Dr      By an  order dated  September 5,  1973, the trial court dismissed the  application  holding  inter  alia  "that  the points raised  here will  be considered  after recording the evidence".  On  the  same  day,  against  this  order  dated September 5,  1973, accused  No. 2  (P.  Philip)  filed  Cr. Revision Petition No. 27 of 1973 under s. 435 of the Code of Criminal Procedure,  1898 (hereinafter  called the old Code) before the Sessions Judge, Ernakulam, who dismissed the same by an  order dated August 6, 1974. Aggrieved by the order of the  Sessions   Judge,  P.  Philip  preferred  Cr.  Revision Petition No.  393 of  1974 to  the High Court. This Revision was heard by a Division Bench along with two other Revisions (Cr. Rev.  Petns. Nos.  409 and  411 of 1974) and dismissed, without going into the merits, on the ground that it was not maintainable in view of s. 399(3) of the New Code.      Mr.  Raghavan,   learned  Counsel   for  the  appellant contends that the order under appeal is manifestly erroneous because at  the time  when the  revision petition  was filed before the Sessions Judge, the old Code was in force, and in view of  s. 484 of the New Code, it had to be disposed of in accordance with the old Code.

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    As against  this, Mr. D. Mukherji submits that the word "application" in s. 484(2) (a) of the Code of 1973 is a word of limited  import. According  to  the  Counsel  only  those applications which  could be  finally  disposed  of  by  the Sessions Judge  would be  covered by  this word.  Since  the revision  application,  in  the  instant  case-proceeds  the argument-was one  for reference  to the  High Court under s. 438 of  the Code  of 1878, and could not be finally disposed of by  the Sessions  Judge at  his level, it would not be an "application" within  the contemplation  of s. 484(2) (a) of the Code  of 1973.  It is pointed out that procedural rights are not vested rights, that whereas a right of 534 appeal is  a substantive  right, the  procedural facility to move in  revision does  not involve  such a  right. On these premises it  is maintained  that the saving clause in s. 484 should be  very strictly construed, with the result that the Code of  Criminal Procedure,  1973 will govern all revisions which were pending on April 1, 1974 when it came into force.      We are unable to accept the interpretation of s. 484(2) (a) of the new Code suggested by the learned Counsel for the respondents. The  language of  this provision  is clear. Its material part runs as under.           "(1) The Code of Cr. Procedure 1898 (V of 1898) is      hereby repealed.           (2)  Notwithstanding such repeal:-           (a)  If, immediately before the date on which this                Code comes  into force,  there is any appeal,                application, trial,  inquiry or investigation                pending,  then,   such  appeal,  application,                trial,  inquiry  or  investigation  shall  be                disposed of,  contained, held or made, as the                case  may   be,  in   accordance   with   the                provisions of the Code of Criminal Procedure,                1898 (V  of 1898)  as  in  force  immediately                before such  commencement ..  as if this Code                has not come into fore...... "      It will  be seen  that the  word "application"  in  the saving provision  contained in clause (a) of sub-section (2) of  s.   484  immediately  follows  the  term  "appeal".  It therefore takes some colour from the collocation of words in which it  occurs. It  is synonymous with the term "petition" which  means   a  written   statement  of   material  facts, requesting the  court to grant the relief or remedy based on those facts.  It is  a  peculiar  mode  of  seeking  redress recognised by  law. Thus  considered there  can be  no doubt that the  word "application" as used in clause (a) of s. 484 of the Code of 1973 will take in a revision application made under s.  435 of  the old  Code. Such a revision application does not  cease to be an "application" within the purview of the aforesaid  clause (a) merely because in the event of the application being  allowed, the  Sessions Judge was required to make  a reference to the High Court under s. 438. Whether such an  application is granted or dismissed by the Sessions Judge, he finally disposes of the matter so far as his court is concerned. May be that a purely interlocutory application in a  pending action,  which by itself is not an independent mode of  seeking redress recognised by law is not covered by the word  ’application’ as used in the aforesaid clause (a). But it is not necessary to express any final opinion on that point because  a revision  application of the kind before us is not by any recokning, such an interlocutory application.      In the  present case,  the revision application made by P. Philip was pending before the Sessions Judge when the New Code came  into force.  In view  of s. 484(2) (a) of the New

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Code, this  revision was  required  to  be  disposed  of  in accordance with the provisions of the old Code. 535      The above being the position, the learned Judges of the High Court  were clearly in error in holding that in view of s. 399(3)  of the  New Code, the appellant was not competent to maintain  a revision  in the High Court against the order dated August 6, 1974 of the Sessions Judge.      For these  reasons we  allow this appeal, set aside the order of  the High  Court and  send the appellant’s revision petition (No.  393 of  1974) back  of it  for disposal  with utmost expedition in accordance with law.                    Appeal allowed and R. P. 393/74 remitted. 536