Gupta, J. - (1.) THIS is a reference made by the Additional Sessions Judge, Jodhpur, in a case against one Amar Singh and four others for offences under ss. 392, 342 and 323 of the Marwar Penal Code, which was being inquired into by the First Class Magistrate, Sojat. The Magistrate had issued a bailable warrant for the appearance of Amar Singh in his Court. Amar Singh thereupon filed an application for revision in the Court of the Additional Sessions Judge, Jodhpur, and claimed that proceedings against him should be taken according to the special provisions for the trial of Tazimi Sardars laid down in ss. 450, 451 and 456 of the Marwar Code of Criminal Procedure. The learned Sessions Judge has, while accepting the revision application, recommended that the objection of the accused Amar Singh be allowed and that the warrant of arrest issued by the First Class Magistrate, Sojat, be cancelled and that the trial of Amar Singh, if any, should be ordered to be conducted under the special provisions contained in ss. 446, 451 and 456 (2) M. Cr. P. C.
(2.) SHRI Maghraj Bhansali who was appointed amicus curiae to help the court has submitted that in view of the adoption of the Indian Code of Criminal Procedure by the Rajasthan Government, under which special provisions relating to the procedure and tribunal for the trial of Tazimi Sardars contained in the Marwar Code of Criminal Procedure have been done away with, the recommendation of the learned Additional Sessions Judge cannot be accepted. It may be mentioned here that by an Ordinance promulgated by His Highness the Raj Pramukh on the 7th of November, 1949, the Indian Code of Criminal Procedure has been applied to the whole of Rajasthan mutatis mutandis subject to the modifications and amendments laid down therein. By section 16 of the said Ordinance all the Codes of Criminal Procedure in force in the various integrating Units of Rajasthan including the Marwar Code of Criminal Procedure have been repealed, whereby the special provisions relating to the inquiry into or trial of offences committed by the Tazimi Sardars have also been repealed. We are, therefore, faced with the question whether Amar Singh is entitled to be tried under the said provisions of the Indian Code of Criminal Procedure or under the old repealed procedure laid down in the M. Cr. P. C. The above Ordinance under which the Indian Code of Criminal Procedure has been applied to the whole of Rajasthan was ordered to come into force with immediate effect with the result that the Indian Code of Criminal Procedure became applicable to the whole of Rajasthan on and from the 7th of November, 1949. It is an accepted principle of law that the general rule against retrospectivity of statutes does not apply to a statute relating to procedure, and the new procedure and not the procedure that has been repealed governs even those proceedings that are pending on the date the new procedure comes into force. Vide Maxwell in his treatise on Interpretation of Statutes=ninth Edition on page 232, where it is said. "in both of the above the construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ' seems to fall within the general principle that the presumption against a retrospective construction has no application to enactment which affect only the procedure and practice of the courts, even where the alteration which the statute makes has been dis-advantageous to one of the parties. . . . . . 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 he sues and, if act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode The general principle, however, seems to be that alterations in procedure are retrospective, unless there he some good reason against it. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " In a case reported in A. I. R. 1943 Cal. at page 573 relying on observations or justice Mukherjea in 45 C. W. N. 519 it has been held that an amending statute of procedure would apply where it does not touch the substantive rights of the parties vested in them when the amending act comes into force "it is a general rule that when the Legislation alters the rights of parties by taking away or conferring 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, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there by-gone 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 10 apply prima facie to all actions, pending as well as future. " (Craies on Statute Law, 4th Edn. p. 337 ). In a Full Bench decision of the Bombay High Court referred to in our judgment in another case, Sarkar V. Narain Singh & others, his Lordship Beaumont C. J. has made the following observation: - "the argument is that there is a presumption that statutes are not intended to have retrospective effect, and accordingly a statute will be so construed as not to take away vested rights, unless a contrary construction is imposed by express words or necessary intent. It is admitted that that principle does not apply to statutes dealing merely with the procedure of courts. . . . . . . . . " In another judgment reported in A. I. R. 1944 Patna 147 the presumption against a retrospective construction of statute has been held to have no application to enactments which affect only the procedure and practice of the courts, even where the alteration which the statute made had been disadvantageous to one of the parties - the new procedure being presumably inapplicable where the application would prejudice rights established under the old statute. In the course of his judgment, his Lordship Manoharlal J has observed at page 161 :". . . . . . . . . so that we have to bear in mind the well-settled doctrine that no suitor has a vested interest in the course of procedure or a right to complain, if during his litigation the procedure is changed provided that no injustice be done : see (1876) 3 Ch. D. 62 at p. 60 and (1885) 15 Q. B. D. 234. " In a decision reported in A. I. R. 1949 Nagpur 146 Hemeon and Padhye JJ. have on page 148, stated the rule as follows: - "the general principle is that alteration in procedure is retrospective unless there be some good reason against it. . . . . . . . . ". In a decision of the Patna High Court reported in A. I. R. 1943 Patna 18, their Lordships have laid down that in a criminal case an accused acquires a right of appeal or revision at that point of time when a criminal proceeding is commenced against him, and that procedure should govern his trial which is in force at that time. A criminal proceeding in a complaint case has been held to commence against an accused when the Magistrate issues a process against him, while in a case upon charge sheet the proceeding is deemed to commence when the Magistrate makes up his mind to act upon the charge sheet. In cases upon charge sheet if the accused person has appeared before the Police and is sent up for trial, the proceedings are deemed to commence when the Magistrate has to pass some order as to bail or otherwise, while in cases in which the accused has not appeared before the Police, the proceedings are deemed to commence when the Magistrate issues a warrant or some other process under sections 87 or 88 of the Code of Criminal Procedure. On the authority of this decision it could be argued that in the case before us the law in force on the date the Magistrate issued the bailable warrant should be followed in the trial of the accused. Such a contention has no force. In the aforesaid Patna case the new law had taken away the accused's right of appeal and the right to make an application to the High Court for revision of his conviction or sentence or any order passed during the pendency of the proceedings - rights which are admittedly substantive rights and become vested in a person on the commencement of his case. No such vested right has been taken away by the Indian Code of Criminal Procedure which has been adapted for the whole of Rajasthan. The Ordinance promulgated by His Highness the Raj Pramukh on the 7th of November, 1949, under which the Indian Code of Criminal Procedure has been adapted for the whole of Rajas-than makes the said Code of Criminal Procedure applicable to the whole of Rajasthan with immediate effect. The change in the procedure brought about by the said adaptation of the Indian Code and by the repeal of the Marwar Code of Criminal Procedure is two-fold. Firstly, it does away with the necessity of obtaining sanction of His Highness the Raj Pramukh for prosecution of a Tazimi Sardar which was necessary under the Marwar Code of Criminal Procedure. Secondly, the Tazimi Sardars can now be tried by the ordinary courts instead of being tried either by the High Court or by a special tribunal set up for the purpose. Both the changes are changes which relate to procedure. There can be no doubt that the requirement of a sanction before trial is a provision relating to procedure. The question of forum is also a question of procedure as has been observed by Salmond in his treaties on Jurisprudence wherein he has said: "but in what court. . . . . . . . . . . . . . . . . . I must institute proceedings is a question of procedural law. " Vide 9th Edition page 648 ). In the Calcutta case referred to above their Lordships Nasim Ali and Blank JJ. have expressed this as follows: - "the amending Act, therefore, has not touched the substantive rights of the parties under Act 7 of 1936. It simply lays down in what tribunal the dispute between the parties as to whether a particular liability is or is not a debt within the meaning of Act 7 of T936 is to be determined. It simply changes the forum. It lays down that the dispute is to be settled by the Debt Settlement Board and not by the Civil Court. The provisions of the amending Act relating to this change of forum are, therefore, simply matters of procedure. . . . . . . . . . . . . . . . " Under the procedure now in force, the accused is to be tried by the ordinary courts and is not deprived of any right of appeal or revision against his conviction or sentence or any order passed during the proceedings. The change of procedure only means that he will now be tried by an ordinary court and will have the same right of appeal and _ revision to the High Court instead of being tried by the Court or a special tribunal and having a right of appeal or revision to a Court or tribunal higher than the High Court. That being the case it could not be claimed on behalf of the accused that he should be tried according to the repealed procedure or by the High Court or by a special court. I am, therefore, unable to accept the recommendation of the learned Additional Sessions Judge, Jodhpur, in so far as he wants me to order that the trial of Amar Singh, if any, should be conducted under the special provisions contained in sections 446, 451 and 456 (2) of the Marwar Criminal Procedure Code. However, it appears to me that the order of the Magistrate First Class Sojat, passed by him on the 21st of April, 1949, directing a bailable warrant to be issued against the accused could not have been passed under the law as it existed on that day. But, this has only an academic value and no useful purpose would be served by cancelling this order because such an order could not be issued by the Magistrate. The recommendation made by the learned Additional Sessions Judge in this behalf also could not, therefore, be accepted. I would, therefore, direct that the record be returned to the Magistrate First Class, Sojat, for taking further proceedings in the case. Bapna, J.- I agree with the order proposed by my learned brother for reasons which have been stated by me in detail in the case Sarkar Vs. Narain Singh, disposed of to-day. .;