K. S. SIDHU, J. - (1.) THIS petition, purporting to have been filed under sections 297 and 482 of the Code of Criminal Procedure, 1973 (for short, the New Code), has arisen under the following circumstances.
(2.) THE petitioners, 4 in number, are officers and employees of a public limited company known as Messrs Jaipur Udhyog Limited, Sawai Madhopur. THEy are facing trial in a summons-case pending in the court of the Judicial Magistrate, Sawai Madhopur. THE case was instituted on a complaint filed by the Inspector, Weights and Measures, Sawai Madhopur, on December 21, 1973. THE petitioners arc accused of the commission of various offences punishable under the Rajasthan Weights and Measures (Enforcement) Act, 1958, (No. 32 of 1958), and the Rules framed thereunder. On a prayer made by them in their application filed under sections 205 and 540a of the Code of Criminal Procedure, 1898 (for short, the Old Code), the Magistrate dispensed with the personal attendance of all the four accused and permitted them to appear by their pleader. He recorded their pleas under sections 243 and 244 of the Old Code through their pleader. Evidently, the pleader did not make the admission of guilt on behalf of the petitioners That is way the Magistrate proceeded to record the statement of the complainant and of the witnesses produced by him in the trial. He has already concluded the recording of evidence produced by the prosecution. THE accused did not appear in person through out the recording of the evidence of the prosecution, for, as already stated, they have been exempted from personal attendance and permitted to appear by their pleader. On conclusion of the prosecution evidence, the petitioners' pleader moved an application before the Magistrate praying that the petitioners be permitted to make their statements under section 342 of the Old Code through their pleader. It is said that the said application mentions that no such circumstances have been brought on the record as would "need particular explanation" by the petitioners. By his order dated September 14, S977, the learned Magistrate dismissed the said application and directed the petitioners to appear before him in person to enable him to record their statements under section 342 of the Old Code. The present petition has been made by the accused to challenge the legality & propriety of the order dated September 14, 1977, passed by the learned Magistrate. The petitioners seek an order from this Court directing the Magistrate "not to insist upon the such appearance of the accused petitioners' as directed by the Magistrate. Mr. Bhargava, learned counsel for the petitioners, submitted at the very out-set of his arguments,that, though described as having been filed, inter alia, under section 397 of the New Code, the present application may be treated as an application under section 435 of the Old Code, and that if so treated and dealt with, it would not be hit by the legal bar, newly introduced by sub section (2) of section 397 of the New Code, against exercise of powers of revision in relation to the impugned order passed by the learned Magistrate, even if it were to be assumed that the said order amounts to an "interlocutory order" as contemplated by section 397 (2) of the New Code Learned counsel pointed out in this connection that since the trial in the instant case was already pending in the court of the learned Magistrate, the said trial, as required by sub-section (2) of section 484 of the New Code "shall be. . . . . . held in accordance with the provisions of the Code of Criminal Procedure 1898 (i. e. the Old Code ). . . as if this Code (i. e. the New Code) had net come into force". A petition of revision, as the present one, in counsel's opinion, is nothing but a proceeding in the pending trial, and must, therefore, be disposed of in accordance with the provisions of the Old Code Counselated a Division Bench ruling of the Madhya Pradesh High Court reported as Dhruvanathsingh vs. Shivanaresh Sharma (1) in support of his argument. After giving my careful consideration to this argument and reading the report of the cited case, I am of opinion that the argument has to be rejected as unsound, both in law and principle. A bare perusal of the provisions of section 484 (2) of the New Code would show that it does not apply to a petition of revision which was not pending at the commencement of the New Code and that since the present petition was filed on October 19, 1977, i. e. , long after the commencement of the New Code, there is no question of treating it as a pending petition for being continued and disposed of in accordance with the provisions of the Old Code. Section 484 of the New Code, in so far as it is material, for our present purpose, may be reproduced here, - "484 Repeal and savings. (1) The Code of Criminal Procedure, 1898 (5 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, them such appeal application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898 (5 of 1898), as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force : Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code; In terms of this saving clause, therefore, it is clear that what is saved is only an "appeal, application, trial, inquiry or investigation pending" immediately before the date on which the New Code came into force, and not an appeal, application, trial, inquiry or investigation, which was not so pending at that time. The present petition for revision was not pending at the commencement of the New Code. It is therefore, not saved by the saving clause for being dealt with under the Old Code.
(3.) WHILE construing this saving clause in the manner indicated above, I am not being oblivious of the view that sometimes an appeal and even a revision is taken to be a continuation of the original suit or proceeding and, in that sense, it may be argued that the present revision being a continuation of the original proceedings in the trial must be disposed of in accordance with the provisions of the Old Code. In the instant case, however, it cannot, by any stretch of construction, be urged that this particular revision is a continuation of the original trial. The present petition is plainly a proceeding which has arisen out of an interlocutory application made to the trial court for an order for further dispensing with the personal attendance of the petitioners in the trial and for permitting them to make statements under sec. 342, if necessary, through their pleader. It will be seen that even if this application were to be allowed by this Court, the original prosecution in the trial court would not thereby be terminated or disposed of. The main test, which determines whether an appeal or revision is a continuation of the original suit or proceeding, is to find out whether the decision in the appeal or revision would dispose of the said suit or proceeding in its entirety. If, notwithstanding the decision in such appeal or revision, the original suit or proceeding still remained undecided and therefore pending in the inferior court, such appeal or revision, cannot, in law or logic, be described as a continuation of the original suit or proceeding. As for the Madhya Pradesh ruling in Dhruvanathsingh's case (1) (supra), cited by the learned counsel for the petitionee, I have read and re read it with all the respectful attention which it deserves. I am constrained to say that I have not been able to persuade myself to follow this ruling and accept the interpretation of sec. 484 of the New Code, as given therein The facts in that case were like this One S filed a complaint against one D under sec. 406 I. P. C. On an application filed by D on September 24, 1973, the Magistrate passed an order under sec. 94 of the Old Code directing S to produce certain documents and records. Thereafter, on April 19, 1974, S applied for review of the above order so as to dispense with the production of those documents and records by him. The Magistrate allowed the said application and reviewed his earlier order. Aggrieved by the order of review, D filed a petition of revision before the Sessions Judge, who dismissed the same vide his order dated December 8, 1974 D then challenged the dismissal in the High Court of Madhya Pradesh by way of a writ petition under Art. 227 of the Constitution of India. The Division Bench of the High Court declined to entertain the writ petition, but, instead, registered it as a revision petition under secs 435 and 439 of the Old Code, holding that since an alternative and efficacious remedy was available by way of revision, the writ petition was not competent. After giving these facts in their judgment, the Division Bench reproduced a large number of sections including sec. 484 of the New Code, dealing with appeals, revisions and references. The Division Bench then posed the question whether these sections are applicable to cares pending on April 1, 1974 (when the New Code came into force) and answered it, without much discussion, as follows, - "therefore, the question is whether these sections, relating to appeals and revisions, are applicable to cases pending on l-4-1974, tie trial of which is required to be held according to the provisions of the Old Code There is no doubt that a procedural law can be made to operate retrospectively in the sense so as to apply it to pending cases. But where the Legislature has made a specific provision that all pending cases will be governed by the Old code, we are of the opinion that the Old Code alone will apply in respect of appeals and revisions. A right of appeal is a vested right, which cannot be affected adversely unless the Legislature makes a special provision in that behalf. There being no such special provision, the right of appeal will be governed by the Old Code and the provisions of the New Code relating to appeals and revisions will apply only to those case', which were not pending on 1-4-1974, but which have been instituted on 1-4-1974 or onwards. Therefore, we are of the opinion that the bar of Section 397 (2) or Section 399 (3) of the New Code will not be applicable to such pending cases and the matter will be governed by the provisions of Section 435 and Section 439 of the old Code. " It will be seen that the question posed is begging the answer, for, the Division Bench were assuming that the writ petition, which they were treating as a revision petition, was "case pending oh April 1, 1974, the trial of which is required to be held according to the provisions of the Old Code". The Division Bench repeated a little later that since pending cases were governed by the Old Code, "we are of the opinion that the Old Code alone will apply in respect of appeals and revisions". No reason is given for equating a petition of revision with the original ease pending in the inferior court on April 1, 1974. The revision petition, which arose out of an interlocutory order passed by the in-ferior court, could not, even if it were to be allowed, terminate or finally dispose of the case pending in the inferior court. It could not, therefore, be treated as a continuation of the proceedings of the case pending in the inferior court The Division Bench further assumed that a petition of revision, like a petition of appeal, is "a vested right, which cannot be affected adversely unless the Legislature makes a special provision in that behalf'". With utmost respect to the learned Judges, 1 am not aware of any authority for the view that a petition of revision is a vested right, like a right of appeal under the Old Code or the New Code. In view of the foregoing discussion, it is not possible, in law or principle, to predicate of this revision as a proceeding in continuation of the trial which was pending at the commencement of the New Code. This revision is, therefore, not saved by the saving clause embodied in sec 484 of the New Code. It must, therefore, be disposed of in accordance with the provisions of the New Code. ;