THE STATE Vs. EX MAJOR P.K. SWAMY AND ANR.
HIGH COURT OF MADRAS
Ex Major P.K. Swamy And Anr.
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Somasundaram, J. -
(1.) 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, I. p. c. and Section 5(2) read with Section 5(l)(c) of Act II of 1947 and Section 477 read with Section 34, I. P. C. The offences under Section 5(2) read with Section 5(1)(c) of Act II of 1947 and Section 477 I. P. C. are offences triable exclusively by the Sessions Court. The order of commitment was passed on 8 -7 -1952 and the High Court became seized of the case immediately after the order of committal was passed on that day.
(2.) ON 28 -7 -1952, that is 20 days after the said order of committal, Act 46 of 1952 was passed by the Parliament in and by which, among other things, the forum D for the trial of certain offences, one of which is the offence under Section 6(2) of Act 2 of 1947 was altered. Section 7 of the Act is as follows:
"1. Notwithstanding anything contained in the Criminal Procedure Code, 1898 (Act 5 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, for 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.
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 2 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 (46 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 25 -8 -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 taut also for the area covering the local limits of the original jurisdiction of the High Court of Madras.
3. It is now contended that Section 7 of the Act (46 of 1952) is retrospective in its operation and after the said enactment the High Court has no Jurisdiction to try the offence under Section 5(2) of Act 2 of 1947 and that it is triable only 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."
(3.) 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 46 of 1952 or to a mere matter of procedure. In - - 'Colonial Sugar Refining Co. v. Irwing',, (1905) A. C. 369, 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 Macnaughten observed:
"It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, there is an interference with the existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
It will be seen that even the transferring of an appeal to a new tribunal is held to be an interference with the vested right. This decision has been followed in all the High Courts and the Federal Court of India. In - - 'Venugopala v. Krishnaswami',, 1943 -5 F C R. 39, Varadachariar J. following the decision in - - 'Colonial Sugar Refining Co v. Irwing', , (1905) A. C. 369 observed:
"Their Lordships' decision recognised that from the date of the initiation of the action, the suitor had a right of appeal to a superior tribunal according to the state of the law as it stood at the time of the commencement of the proceeding. This necessarily involves the recognition of an equally valuable right that the proceedings should in due course be tried and disposed of by the tribunal before which it had been commenced".
The learned Judge further observed that:
"This principle that a statute should not be so interpreted as to take away an action which has been well commenced has been affirmed in various cases in different circumstances".
and quotes with approval the observations of Wilde C. J. in - -'Marsh v. Higgins,, (1850) 9 CB 551:
"It must have been well known to both branches of the legislature that strong and distinct words would be necessary to defeat the vested right to continue an action which has been well commenced."
The decision established that a right to continue an action which has been well commenced is a substantive right.;
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