Gupta, J. - (1.) THIS is a reference made by the Sub Divisional Magistrate, Parbatsar, under S. 450 (2) of the Marwar Code of Criminal Procedure in a case in which Bal Singh, Ghisia, Chatu Singh and one Narain Singh said to be a Tazimi Sardar were put up before him for an enquiry prior to commitment to the Sessions for trial for the offences of rioting and committing murder of one Surajmal Singh of the village Khokaria under Ss. 302, 148 and 149 of the Penal Code committed on the 15th of October, 1947. It would be well worth here to set down the special provisions of the Marwar Criminal Procedure Code under which the case was enquired into and the reference was made. "section 449. A Magistrate or Court taking cognizance of an offence under S. 190 shall examine the complainant, if any, and record the evidence produced in support of the charge, and may make further enquiry himself or direct further inquiries to be made, by a Police officer or another Magistrate as laid down in Section 202. " "section 450 (1 ).- If after examining the complainant and considering the results of the evidence produced and of such further inquiry or investigation, if any, ordered under the last preceding section, the Magistrate or Court is of opinion that there is no sufficient ground for proceeding he may, (a) if cognizance has been taken under section 190 (a) dismiss the complaint; (b) if cognizance has been taken, under section 190 (c) cancel further proceedings. Provided that, in each case he shall record briefly the reasons for his action. (2) If cognizance has been taken on a Police report of the facts under section 190 (d) and if in the case of 'offences, cognizance of which has been taken under section 190 (a) and (c) the Magistrate or Court is of opinion that there is sufficient ground for proceeding, he shall submit the record of the case, with a brief review of the facts and his opinion regarding the guilt of the accused, to the Chief Court. "
(2.) AS a result of his inquiries under S. 454 of the M. Cr. P. C. as to whether Narain Singh was a Tazimi Sardar or not the Magistrate First Class, Parbatsar, before whom the challan was first put up, gave a finding on the 2nd of August, 1948, that he was a Tazimi Sardar. After a number of witnesses had been examined by the said Magistrate and there after by the Sub-divisional Magistrate, Parbatsar, the latter was of the opinion that a prima facie case had been made out against the accused and, therefore, by an order dated the 31st October, 1949, he submitted the case to this Court for obtaining the sanction of His Highness under S. 452 read with sec. 456 of the Code which reads: "section 452 (1 ). If His Highness orders the accused to be put up on trial for any offence, the case shall, if it does not fail under any of the sections mentioned in section 457, be remanded to the Chief Court for trial, or transferred to any other court competent to try the charge referred. (2) If the offence falls under any sections mentioned in section 457, the case shall be remanded in the discretion of His Highness either to special tribunal or to the Chief Court. (3) The special tribunal shall consist of such persons as His Highness may in each case direct. " "section 456. When an offence is committed by a Tazimi Sardar jointly with another person who is not a Tazimi Sardar, or a Tazimi Sardar is accused or the abetment of an offence committed by another, who is not a Tazimi Sardar, and both are being dealt with together the provisions of this Chapter shall apply to the case. " It may be mentioned here that the offences which the accused are alleged to have committed are those mentioned in Sec. 457 of the Marwar Criminal Procedure Code. It may be also mentioned here that under s. 52 of the Government of Jodhpur Act, 1947, the Chief Court was renamed and designed as the "high Court" and that, thereupon, references to the "chief Court" were to be construed as references to the High Court. Further, with the establishment of a High Court for the whole of Rajasthan called the High Court for Rajasthan and abolition of all the High Courts and tribunals performing the functions of the High Court in the various integrating units of Rajasthan including the High Court of Jodhpur, all references to the High Court in the laws of Marwar are now to be construed as references to the Rajasthan High Court. It may further be pointed out that under sec. 3 of the Rajasthan Administration Ordinance, 1949, being Ordinance No, 1 of 1949 promulgated by His Highness the Raj Pramukh on the 7th of April, 1949 references to the rules of any integrating state - Marwar in this case - shall be construed as references to the Raj Pramukh. Subsequent to the submission of the case to the High Court by the learned Sub-divisional Magistrate, the Indian Code of Criminal Procedure has been adopted for the whole of Rajasthan mutatis mutandis with certain modifications mentioned in the Ordinance promulgated by His High ness the Raj Pramukh on the 29th of November, 1949, called the Rajasthan Code of Criminal Procedure (Adaptation) Ordinance, 1949, which was ordered to come into force at once, and all the Codes relating to procedure in Criminal Courts in force in the various integrating units of Rajasthan including the Marwar Criminal Procedure Code have been repealed. Section 16 of the Ordinance read: "16. Repeal and saving.- On the coming into force of this Ordinance all laws dealing with Criminal Procedure, in force in any part of Rajasthan, shall be repealed: Provided that any thing done or action taken under any such law shall, unless varied or superseded under or in pursuance of this Ordinance, continue and be deemed to have been done or taken, as the case may be, under and in pursuance of this Ordinance as if it were then in force. *' Neither the Ordinance lays down any special procedure for an enquiry into or trial of offences committed by the Tazimi Sardars nor does the Indian Code contain any provision on the subject. The result is that the above special provisions relating to the procedure, for enquiry and trial of offences committed by Tazimi Sardars, contained in the Marwar Code of Criminal Procedure have been repealed without any provisions analogous to those repealed having been made and an interesting and important question has arisen as to the procedure that should apply to the case. It is claimed on behalf of Narain Singh that the old procedure contained in the repealed Marwar Code of Criminal Procedure should apply to the case, that the case should be submitted to His Highness the Raj Pramukh for accord of sanction for his trial and for orders as to the Court that should try him. Shri Radha Mohan Toshniwal who appeared for Narain Singh argued that at the time the offence is alleged to have been committed and at the time the challan was put up before the Magistrate, Parbatsar, as also at the time the Sub-divisional Magistrate made the reference, his client had acquired a right to be tried only after a sanction of His Highness the Raj Pramukh had been obtained and by the tribunal specially set up for his trial or by the High Court, if so ordered, by His Highness the Raj Pramukh. We are unable to accept this contention of the learned counsel. No doubt, it is a settled law that when a statute is altered during the pendency of an action, the rights of the parties are to be determined according to the law as it existed when the action was begun, unless the new law shows an obvious intention to vary such rights; but this is not so in the case of procedural law. In the case of law that affects only the procedure and does not extend to right of action there is an exception to the said general rule and the procedure laid down in the new law affects even the cases pending at the date the new law comes into force. On the point of applicability of the provisions of the Marwar Criminal Procedure Code, the contention is that certain rights relating to the trial, viz. , trial only after sanction of His Highness the Raj Pramukh and trial not by ordinary courts but by the High Court If so ordered or by a special tribunal to be set up by His Highness the Raj Pramukh are substantive and vested rights in the accused which could not be taken away by the repeal of the provisions after the commencemen (t of the criminal proceedings. Even if it be taken as established that the right to be tried only after sanction of the Raj Pramukh and the right to be tried by the High Court or by a special tribunal set up for the purpos, are substantive rights, the question,; however, remains, at what stage these rights come into exis-tance in the sense that they are such vested rights as cannot be taken away by subsequent legislation. It cannot be said that in every criminal case, the trial begins as soon as cognizance of the case is taken by a magistrate. In cases triable by a magistrate, the trial may begin immediately with the taking of cognizance by the magistrate but in cases triable by a Court of Session, such as the present one, the trial does not begin unless and until an order is passed by the magistrate committing the case to the Court of Session. All the proceedings prior to the order of commitment are stages of enquiry which result either in commitment or discharge of the accused. In cases exclusively triable by a Court of Session, according to the provisions contained in the Marwar Criminal Procedure Code, the accused could be discharged under S. 209 even during the pendency of the magisterial enquiry and even if a charge were framed against him under S. 210, the magistrate could, under S. 212, examine witnesses produced by the accused in his defence or mentioned by him in the list submitted under s. 211, and having done so, could cancel the charge and discharge the accused under s. 213, sub-sec. (2), if he were satisfied that there were not sufficient grounds for committing the accused. It was only if the accused was not discharged under either of the above provisions, that the order of commitment to the Court of Session were to be made and thereafter the trial could begin. It was really at this time i. e. , at the time that the trial began when it could be said that the right to be tried only under a sanction of His Highness the Raj Pramukh or by a Court other than the ordinary court could arise. Till then the rights in question could not be called acquired rights. In the case before us all the offences which the accused are alleged to have committed or offences triable exclusively by a Court of Session and the Magistrate has so far followed the procedure laid down for enquiry into offences committed by the Tazimi Sardars in which he has issued no process against the accused until now. The proceedings taken by him are only ex parte proceedings under s. 202 of the Code of Criminal Procedure. He cannot, therefore, be said to have as yet taken cognizance of the case and Narain Singh cannot be said to have acquired any vested right for his trial under any particular procedure or tribunal other than the ordinary court of law. The trial is yet to begin. This is also the view of the Bombay High Court. Vide A. I. E. 1939 Bombay 169 in which though His Lordship Beaumont C. J. has arrived at the same conclusion by a different process of reasoning, his Lordship Divatia J. has, by the above process of reasoning, held that though "even on the basis that the Ordinance (in question in that case) was not meant to be retrospective in the sense of depriving the accused of their existing and substantive rights, in none of these cases were the accused in possession of such rights at the date of their trial. . . . . . . . . . It is sufficient to say that the accused had not any vested rights in them at the date when their trial began. " The Patna case reported in A. I. R. 1943 Patna 18 in which a different view may appear to have been taken is distinguishable inasmuch as in that case the trial of the accused according to the procedure by the special magistrate would have deprived the accused of their right of appeal as well as the right of applying to the High Court for revision of their conviction and sentence or any order passed during the pendency of the proceedings which had vested in them on the date the magistrate took cognizance of the case against them. In the case before us no contention has been raised on behalf of Narain Singh that the accused's right of appeal or of making an application to Ijlas-i-Khas, for revision of any order passed during the trial of the case - rights which could be vested or acquired rights - would be violated if the trial of the accused were not held according to the procedure laid down in the repealed Marwar Code of Criminal Procedure. In fact, no such contention could be raised. First of all, the Ijlas-i-Khas of Jodh-pur has itself been abolished and it can safely be said that such rights, even if they existed, could not be enforced, when the very tribunal, before which these rights could be enforced, had been abolished. Secondly, the right of appeal or the right of making an application for revision against conviction or sentence or any order had not at all been affected. These rights could now be enforced in the High Court. Again, the right of trial only under sanction of the ruler or the right of trial by a tribunal other than the ordinary courts of law is not, in my opinion, a vested right that could not be taken away by repealing the statute providing the same. Because, the provisions relating to sanction prior to prosecution of an accused are, without any doubt whatsoever, provisions relating merely to procedure and no person has any vested right in any form of procedure. A reference in this connection may be made to a judgment reported in A. I. R. 1949 Nag. 146 in which the general principle has been mentioned to be that alteration in procedure is retrospective unless there be some good reason against it.
(3.) FURTHER reference may be made to a decision reported in I. L. R. 1943 (1) Gal. 134. Their Lordships Nasim Ali and Blank JJ. relying on the following propositions of law - "it is a general rule that when the Legislation alters the rights of parties by taking away or confer- ring any right of action, its enactments, unless in express terms,they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action. ". . . . . . . . . "for it is perfectly settled that if the Legislature forms a new procedure, so that, instead of proceeding in this form or that, you should proceed in ano her and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. ". . . . . "a statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing. " In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, "it will be held to apply prima facie to all actions, pending as well as future. " (Craies on Statute Law, 4th Ed. p. 337 ). "whether a person has a right to recover property is a question of substantive law. . . . . . . . . But in what Courts. . . . . . . . . I must institute proceedings is a question of procedural law. " (Salmond on Jurisprudence ). have laid down that "the provisions of the amending Act relating to this change of forum are, therefore, simply matters of procedure. . . . . . . . . . . . . " and held that no party has a vested right in trial of his action in any particular court. In my opinion, therefore, what at the most the accused could claim is a trial by a competent court and according to the procedure laid down by the laws of the realm in force for the time being. The accused, in my opinion, could not claim a vested right to be tried in a particular manner or by a particular tribunal if the Government of the State thought it fit to do away with that particular procedure or the particular court. In the Indian Code of Criminal Procedure now applicable to Rajasthan, there is no provision requiring special procedure to be followed in any inquiry or trial of a Tazimi Sardar nor is there any provision requiring the trial of the Tazimi Sardars to be held by a tribunal other than the ordinary tribunal similar to the provisions contained under Ss. 451, 452 and 456 of the Marwar Criminal Procedure Code. I am, therefore, | of the opinion that it is no more necessary for submitting the case to His Highness the Raj Pramukh for sanction for prosecution of Narain Singh or for setting up a special tribunal for the purpose. In my opinion, the ordinary procedure laid down in the newly promulgated Indian Code of Criminal Procedure for criminal trials has now to be followed in the case. I would, therefore, reject the reference and order the records to be sent to the court of the Sub-Divisional Magistrate for further proceedings according to law. Bapna, J.- I agree in the order proposed but would like to add a few words. The Indian Code of Criminal Procedure, until recently, contained special provisions relating to cases in which European and Indian British subjects were concerned, vide Chapter XXXIII. In adapting the Indian Code for the former Jodhpur State in 1934, this Chapter was replaced by provisions relating to the trial of Tazimi Sardars, which may be briefly referred to as under : - Sections 443 and 444 were omitted. Section 445 related to the definition of 'tazimi Sardars'. Section 446 required sanction of the Government before arrest of any Tazimi Sardar. Section 447 empowered a Police Officer to conduct investigation in respect of a cognizable offence reported against a Tazimi Sardar except putting him under arrest. Section 441 empowered the Police to obtain a bond with or without sureties for such accused for appearance in a competent court. Sections 449 and 450 related to the procedure to be adopted by a Magistrate taking cognizance of an offence against a Tazimi Sardar, and have been reproduced by my learned brother in his Section 451 empowered the High Court to dismiss the case if in its opinion there was no sufficient evidence to justify the trial, but provides for the record to be sub-mitted'to His Highness in case the High Court was of opinion that there was sufficient evidence to justify a trial, it being left to His Highness to pass such orders thereon as he would deem fit. Section 452 pointed out the various courts or tribunals to whom the case could be sent for trial at the discretion of His Highness, Section 453 related to attendance of Tazimi Sardars at such trials. Section 445 contains provision regarding persons who have not been declared to be Tazimi Sardars, but claimed to be so. The Sub-Divisional Officer reported this case under section 450 of the Marwar Criminal Procedure on 31st October, 1949, to the High Court as in his opinion there were sufficient grounds for proceeding against the Tazimi Sardar. By the time the case came up for hearing, an Ordinance. (No. XXXIX of 1949, Rajasthan Code of Criminal (Adaptation Ordinance) was promulgated on the 9th of November, 1949, and, as the preamble states, this was done to consolidate and amend the law relating to the criminal procedure in Rajasthan. It may be observed that prior to the formation of the United State of Rajasthan different States had different Code of Criminal Procedure, and it was obviously necessary to consolidate and unify the law in this respect in Rajasthan. It is contended for the accused who is a Tazimi Sardar, that the procedure laid down in Section 451 of the Marwar Criminal Procedure Code should be followed in this case, and that the High Court should submit the case to His Highness the Maharaja Sahib Bahadur of Jodhpur, if it is of opinion that there is evidence against him to justify a trial. ;