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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    353         OF 2013 (Arising out of S.L.P. (Crl.) No.5663 of 2011

Ramesh Kumar Soni …Appellant

Versus

State of Madhya Pradesh …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.  

2. The short question that falls for determination in this  

appeal is whether the appellant could be tried by the Judicial  

Magistrate,  First  Class,  for  the  offences  punishable  under  

Sections  408,  420,  467,  468  and  471  of  the  IPC  

notwithstanding the fact that the First Schedule of the Code  

of Criminal Procedure, 1973 as amended by Code of Criminal

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Procedure (Madhya Pradesh Amendment) Act of 2007, made  

offences punishable under Sections 467, 468 and 471 of the  

Penal Code triable only by the Court of Sessions. The Trial  

Court  of  9th Additional  Sessions  Judge,  Jabalpur  has  

answered that question in the negative and held that after  

the  amendment  the  appellant  could  be  tried  only  by  the  

Court of Sessions.  That view has been affirmed by the High  

Court of Madhya Pradesh at Jabalpur in a criminal revision  

petition filed by the appellant against the order passed by  

the Trial Court. The factual matrix in which the controversy  

arises may be summarised as under:  

3. Crime  No.129  of  2007  for  commission  of  offences  

punishable under Sections 408, 420, 467, 468 and 471 of  

the IPC was registered against the appellant on 18th May,  

2007,  at  Bheraghat  Police  Station.  On  the  date  of  the  

registration of the case the offences in question were triable  

by a Magistrate of First Class in terms of the First Schedule  

of  Code  of  Criminal  Procedure,  1973.  That  position  

underwent  a  change  on  account  of  the  Code  of  Criminal  

Procedure  (Madhya  Pradesh  Amendment)  Act  of  2007

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introduced  by  Madhya  Pradesh  Act  2  of  2008  which  

amended the First Schedule of the 1973 Code and among  

others made offences under Sections 467, 468 and 471 of  

the  IPC  triable  by  the  Court  of  Sessions  instead  of  a  

Magistrate  of  First  Class.  The  amendment  received  the  

assent  of  the  President  on  14th February,  2008  and  was  

published  in  Madhya  Pradesh  Gazette  (Extraordinary)  on  

22nd February,  2008.  Consequent  upon  the  amendment  

aforementioned, the Judicial Magistrate, First Class appears  

to have committed to the Sessions Court all cases involving  

commission of offences under the above provisions.  In one  

such case the Sessions Judge, Jabalpur, made a reference to  

the High  Court  on  the  following two distinct  questions  of  

law:       

1. Whether  the  recent  amendment  dated  22nd  

February, 2008 in the Schedule-I of the Cr.P.C. is to be  

applied retrospectively?

2. Consequently, whether the cases pending before  

the Magistrate First Class, in which evidence partly or  

wholly  has  been  recorded,  and  now  have  been

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committed to this Court are to be tried de novo by the  

Court of Sessions or should be remanded back to the  

Magistrate First Class for further trial?

4. A Full Bench of the High Court of Madhya Pradesh in  

Re:  Amendment  of  First  Schedule  of  Criminal   

Procedure  Code  by  Criminal  Procedure  Code  (M.  P.   

Amendment) Act, 2007 2008 (3) MPLJ 311, answered  

the  reference  and held  that  all  cases  pending  before  the  

Court of Judicial Magistrate First Class as on 22nd February,  

2008  remained  unaffected  by  the  amendment  and  were  

triable  by  the  Judicial  Magistrate  First  Class  as  the  

Amendment Act did not contain a clear indication that such  

cases also have to be made over to the Court of Sessions.  

The Court further held that all such cases as were pending  

before  the  Judicial  Magistrate  First  Class  and  had  been  

committed to the Sessions Court shall be sent back to the  

Judicial  Magistrate First Class in accordance with law. The  

reference was answered accordingly.   

5. Relying  upon  the  decision  of  the  Full  Bench  the  

appellant filed an application before the trial Court seeking a

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similar  direction  for  remission  of  the  case  for  trial  by  a  

Judicial Magistrate. The appellant argued on the authority of  

the above decision that although the police had not filed a  

charge-sheet against the appellant and the investigation in  

the case was pending as on the date the amendment came  

into force, the appellant had acquired the right of trial by a  

forum  specified  in  Schedule  I  of  the  1973  Code.  Any  

amendment to the said provision shifting the forum of trial  

to the Court of Sessions was not attracted to the appellant’s  

case  thereby  rendering  the  committal  of  the  case  to  the  

Sessions Court and the proposed trial of the appellant before  

the  Sessions  Court  illegal.  The  trial  Court,  as  mentioned  

earlier,  repelled  that  contention  and  held  that  since  no  

charge-sheet had been filed before the Magistrate as on the  

date  the  amendment  came  into  force,  the  case  was  

exclusively triable by the Sessions Court.  The High Court  

has affirmed that view and dismissed the revision petition  

filed by the appellant, hence the present appeal.

6. The  Code  of  Criminal  Procedure  (Madhya  Pradesh  

Amendment) Act, 2007 is in the following words:

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“An  Act  further  to  amend  the  Code  of  Criminal   Procedure,  1973  in  its  application  to  the  State  of   Madhya Pradesh.

Be  it  enacted  by  the  Madhya  Pradesh  Legislature in the Fifty-eighth Year of the Republic of   India as follows:

1. Short title. – (1) This Act may be called the Code   of  Criminal  Procedure  (Madhya  Pradesh  Amendment) Act, 2007.

2. Amendment  of  Central  Act  No.2  of  1974  in  its   application to the State of Madhya Pradesh – The  Code of Criminal Procedure, 1973 (No. 2 of 1974)   (hereinafter referred to as the Principal Act), shall   in its application to the State of Madhya Pradesh,   be amended in the manner hereinafter provided.

3. Amendment of Section 167 - ......

xxxx xxx xxx

4. Amendment of the First Schedule – In the First   Schedule to the Principal Act, under the heading  “I-Offences  under  the  Indian  Penal  Code”  in   column  6  against  section  317,  318,  326,  363,   363A, 365, 377, 392, 393, 394, 409, 435, 466,   467,  468,  471,  472,  473,  475,  476,  477  and  477A,  for  the  words  “Magistrate  of  First  Class”   wherever  they  occur,  the  words  “Court  of   Sessions” shall be substituted.”           

7. The  First  Schedule  to  the  Criminal  Procedure  Code  

1973  classifies  offences  under  the  IPC  for  purposes  of  

determining whether or not a particular offence is cognizable  

or non-cognizable and bailable or non-bailable. Column 6 of  

the First Schedule indicates the Court by which the offence  

in  question  is  triable.  The  Madhya  Pradesh  Amendment

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extracted above has shifted the forum of trial from the Court  

of a Magistrate of First Class to the Court of Sessions.  The  

question is whether the said amendment is prospective and  

will be applicable only to offences committed after the date  

the  amendment  was  notified  or  would  govern  cases  that  

were pending on the date of the amendment or may have  

been filed after the same had become operative.  The Full  

Bench  has  taken  the  view that  since  there  is  no  specific  

provision  contained  in  the  Amendment  Act  making  the  

amendment  applicable  to  pending  cases,  the  same would  

not  apply  to  cases  that  were  already  filed  before  the  

Magistrate.  This  implies  that  if  a  case had not  been filed  

upto the date the Amendment Act came into force, it would  

be  governed by the Amended Code and hence be triable  

only by the Sessions Court. The Code of Criminal Procedure  

does not, however, provide any definition of institution of a  

case.  It is, however, trite that a case must be deemed to be  

instituted only when the Court competent to take cognizance  

of the offence alleged therein does so. The cognizance can,  

in turn, be taken by a Magistrate on a complaint of facts

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filed before him which constitutes such an offence. It may  

also be taken if a police report is filed before the Magistrate  

in writing of such facts as would constitute an offence. The  

Magistrate may also take cognizance of an offence on the  

basis  of  his  knowledge  or  suspicion  upon  receipt  of  the  

information from any person other than a police officer.  In  

the case of the Sessions Court, such cognizance is taken on  

commitment to it by a Magistrate duly empowered in that  

behalf.  All  this  implies  that  the  case  is  instituted  in  the  

Magistrate’s Court when the Magistrate takes cognizance of  

an offence, in which event the case is one instituted on a  

complaint or a police report. The decision of this Court in  

Jamuna Singh and Ors. v. Bahdai Shah AIR 1964 SC  

1541, clearly explains the legal position in this regard. To  

the same effect is the decision of this Court in Devrapally  

Lakshminarayana Reddy and Ors. v. Narayana Reddy  

and Ors. (1976) 3 SCC 252 where this Court held that a  

case can be said to be instituted in a Court only when the  

Court takes cognizance of the offence alleged therein and  

that  cognizance  can  be  taken  in  the  manner  set  out  in

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clauses (a) to (c) of Section 190(1) of the Cr.P.C.  We may  

also refer to the decision of this Court in Kamlapati Trivedi  

v.  State of  West Bengal  (1980) 2 SCC 91 where this  

Court interpreted the provisions of Section 190 Cr.P.C. and  

reiterated the legal position set out in the earlier decisions.

8. Applying  the  test  judicially  recognized  in  the  above  

pronouncements to the case at hand, we have no hesitation  

in holding that no case was pending before the Magistrate  

against  the appellant  as on the date the Amendment Act  

came into force. That being so, the Magistrate on receipt of  

a  charge-sheet  which  was  tantamount  to  institution  of  a  

case against the appellant was duty bound to commit the  

case to the Sessions as three of the offences with which he  

was charged were triable only by the Court of Sessions. The  

case having been instituted after the Amendment Act had  

taken effect, there was no need to look for any provision in  

the  Amendment  Act  for  determining  whether  the  

amendment was applicable even to pending matters as on  

the  date  of  the  amendment  no  case  had  been  instituted  

against the appellant nor was it pending before any Court to

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necessitate  a  search  for  any  such  provision  in  the  

Amendment Act.  The Sessions Judge as also the High Court  

were,  in  that  view,  perfectly  justified  in  holding  that  the  

order of committal passed by the Magistrate was a legally  

valid  order  and  the  appellant  could  be  tried  only  by  the  

Court of Sessions to which the case stood committed.   

9. Having said so, we may now examine the issue from a  

slightly  different  angle.  The  question  whether  any  law  

relating  to  forum  of  trial  is  procedural  or  substantive  in  

nature  has  been  the  subject  matter  of  several  

pronouncements of this Court in the past. We may refer to  

some of these decisions, no matter briefly. In  New India  

Insurance Company Ltd.  v.  Smt. Shanti  Misra,  Adult   

(1975) 2 SCC 840, this Court was dealing with the claim of  

payment of compensation under the Motor Vehicles Act.  The  

victim  of  the  accident  had  passed  away  because  of  the  

vehicular  accident  before  the  constitution  of  the  Claims  

Tribunal under the Motor Vehicles Act, 1939, as amended.  

The  legal  heirs  of  the  deceased  filed  a  claim petition  for  

payment  of  compensation  before  the  Tribunal  after  the

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Tribunal  was  established.  The  question  that  arose  was  

whether the claim petition was maintainable having regard  

to the fact that the cause of action had arisen prior to the  

change  of  the  forum for  trial  of  a  claim  for  payment  of  

compensation.  This  Court  held  that  the  change  of  law  

operates retrospectively even if the cause of action or right  

of  action  had accrued prior  to  the  change  of  forum.  The  

claimant shall, therefore, have to approach the forum as per  

the amended law. The claimant, observed this Court, had a  

“vested right of action” but not a “vested right of forum”.  It  

also held that unless by express words the new forum is  

available only to causes of action arising after the creation of  

the forum, the general rule is to make it retrospective.  The  

following passages are in this regard apposite:

“5. On the  plain  language of  Sections  110-A and   110-F there should be no difficulty in taking the view  that  the  change  in  law  was  merely  a  change  of   forum i.e. a change of adjectival or procedural law   and not of substantive law. It is a well-established   proposition  that  such  a  change  of  law  operates   retrospectively and the person has to go to the new  forum even if his cause of action or right of action   accrued prior to the change of forum. He will have a   vested  right  of  action  but  not  a  vested  right  of   forum. If by express words the new forum is made  available only to causes of action arising after  the   creation  of  the  forum,  then  the  retrospective  

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operation of the law is taken away. Otherwise the  general  rule  is  to  make  it  retrospective.  The  expressions “arising out of an accident” occurring in   sub-section  (1)  and  “over  the  area  in  which  the   accident  occurred”,  mentioned  in  sub-section  (2)   clearly show that the change of forum was meant to   be operative retrospectively irrespective of the fact   as  to  when  the  accident  occurred.  To  that  extent   there  was  no  difficulty  in  giving  the  answer  in  a   simple  way.  But  the  provision  of  limitation  of  60   days  contained  in  sub-section  (3)  created  an   obstacle  in  the  straight  application  of  the  well- established  principle  of  law.  If  the  accident  had   occurred within 60 days prior to the constitution of   the  tribunal  then  the bar  of  limitation provided in   sub-section  (3)  was  not  an  impediment.  An  application to the tribunal could be said to be the   only  remedy.  If  such  an  application,  due  to  one   reason or the other,  could not be made within 60   days then the tribunal had the power to condone the   delay under the proviso. But if the accident occurred   more  than 60  days  before  the  constitution  of  the  tribunal then the bar of limitation provided in sub- section  (3)  of  Section  110-A  on  its  face  was   attracted. This difficulty of limitation led most of the   High Courts to fall  back upon the proviso and say   that such a case will be a fit one where the tribunal   would  be  able  to  condone  the  delay  under  the   proviso to sub-section (3), and led others to say that   the  tribunal  will  have  no  jurisdiction  to  entertain   such an application and the remedy of going to the   civil court in such a situation was not barred under   Section 110-F of the Act. While taking the latter view  the High Court failed to notice that primarily the law  engrafted in Sections 110-A and 110-F was a law  relating to the change of forum.

6. In  our  opinion  in  view  of  the  clear  and   unambiguous language of Sections 110-A and 110-F   it is not reasonable and proper to allow the law of   change of forum give way to the bar of limitation   provided in sub-section (3) of Section 110-A. It must   be vice versa. The change of the procedural law of   forum  must  be  given  effect  to.  The  underlying  principle of the change of law brought about by the   amendment  in  the  year  1956  was  to  enable  the  claimants to have a cheap remedy of  approaching  

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the claims tribunal on payment of a nominal court   fee whereas a large amount of ad valorem court fee   was required to be paid in civil court.”

10. In  Hitendra Vishnu Thakur and Ors.  etc.  ect.  v.   

State of Maharashtra and Ors. (1994) 4 SCC 602, one  

of  the  questions  which  this  Court  was  examining  was  

whether  clause  (bb)  of  Section  20(4)  of  Terrorist  and  

Disruptive Activities (Prevention) Act, 1987 introduced by an  

Amendment Act governing Section 167(2) of the Cr.P.C. in  

relation to TADA matters was in the realm of procedural law  

and if so, whether the same would be applicable to pending  

cases.  Answering the question in the affirmative this Court  

speaking through A.S. Anand, J. (as His Lordship then was),  

held that Amendment Act 43 of 1993 was retrospective in  

operation and that clauses (b) and (bb) of sub-section (4) of  

Section 20 of TADA apply to the cases which were pending  

investigation on the date when the amendment came into  

force.  The Court summed up the legal position with regard  

to the procedural law being retrospective in its operation and  

the right of a litigant to claim that he be tried by a particular  

Court, in the following words:

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“26. xxx xxx  

(i) A statute which affects substantive rights is   presumed  to  be  prospective  in  operation  unless   made retrospective, either expressly or by necessary   intendment, whereas a statute which merely affects   procedure,  unless  such  a  construction  is  textually   impossible,  is  presumed  to  be  retrospective  in  its   application,  should  not  be  given  an  extended   meaning and should be strictly confined to its clearly   defined limits.

(ii)  Law  relating  to  forum  and  limitation  is   procedural in nature, whereas law relating to right of   action and right of appeal even though remedial is   substantive in nature.

(iii)  Every  litigant  has  a  vested  right  in   substantive  law  but  no  such  right  exists  in   procedural law.

(iv) A procedural statute should not generally   speaking be applied retrospectively where the result   would be to create new disabilities or obligations or   to  impose  new  duties  in  respect  of  transactions  already accomplished.

(v)  A  statute  which  not  only  changes  the  procedure but also creates new rights and liabilities   shall  be  construed  to  be  prospective  in  operation,   unless  otherwise  provided,  either  expressly  or  by   necessary implication.”

11. We  may  also  refer  to  the  decision  of  this  Court  in  

Sudhir  G.  Angur  and  Ors.  v.  M.  Sanjeev  and  Ors.   

(2006) 1 SCC 141 where a three-Judge Bench of this Court  

approved the decision of  the Bombay High Court in  Shiv  

Bhagwan Moti  Ram Saraoji  v.  Onkarmal  Ishar  Dass  

and Ors. (1952) 54 Bom LR 330 and observed:

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“12....It has been held that a Court is bound to take   notice  of  the  change  in  the  law  and  is  bound  to   administer the law as it was when the suit came up  for  hearing. It  has  been  held  that  if  a  Court  has   jurisdiction  to  try  the  suit,  when  it  comes  on  for   disposal, it then cannot refuse to assume jurisdiction  by reason of the fact that it had no jurisdiction to   entertain it at the date when it was instituted. We  are  in  complete  agreement  with  these  observations...”

  (emphasis supplied)

12. In  Shiv Bhagwan Moti Ram Saraoji’s  case (supra)  

the Bombay High Court has held procedural laws to be in  

force  unless  the  legislatures  expressly  provide  to  the  

contrary. The Court observed:   

    “...Now, I think it may be stated as a general   principle  that  no  party  has  a  vested  right  to  a   particular proceeding or to a particular forum, and it   is  also  well  settled  that  all  procedural  laws  are   retrospective unless the Legislature expressly states   to the contrary. Therefore, procedural laws in force  must  be  applied  at  the  date  when  a  suit  or   proceeding comes on for trial or disposal...”

                                   (emphasis supplied)

13. The amendment to the Criminal Procedure Code in the  

instant case has the effect of shifting the forum of trial of  

the accused from the Court of Magistrate First Class to the  

Court of Sessions. Apart from the fact that as on the date  

the amendment came into force no case had been instituted

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against  the  appellant  nor  the  Magistrate  had  taken  

cognizance against the appellant,  any amendment shifting  

the forum of the trial had to be on principle retrospective in  

nature in the absence of any indication in the Amendment  

Act to the contrary.  The appellant could not claim a vested  

right of forum for his trial for no such right is recognised.  

The High Court was, in that view of the matter, justified in  

interfering with the order passed by the Trial Court.

14. The questions formulated by the Full Bench of the High  

Court were answered in the negative holding that all cases  

pending in the Court of Judicial Magistrate First Class as on  

22nd February,  2008  when  the  amendment  to  the  First  

Schedule  to  the  Cr.P.C.  became  operative,  will  remain  

unaffected by the said amendment  and such matters  as  

were,  in  the  meanwhile  committed  to  the  Court  of  

Sessions, will be sent back to the Judicial Magistrate First  

Class for trial in accordance with law.  In coming to that  

conclusion  the  Full  Bench  placed  reliance  upon  three  

decisions of this Court in  Manujendra Dutt. v. Purnedu  

Prosad Roy Chowdhury  & Ors.  AIR 1967 SC 1419,  

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Commissioner  of  Income-tax,  Bangalore  v.  Smt.  R.   

Sharadamma  (1996)  8  SCC  388  and R.  

Kapilanath(Dead) through L.R.  v.  Krishna (2003) 1   

SCC 444.  The ratio of the above decisions, in our opinion,  

was not directly applicable to the fact situation before the  

Full Bench. The Full Bench of the High Court was concerned  

with  cases  where  evidence  had  been  wholly  or  partly  

recorded before the Judicial Magistrate First Class when the  

same were committed to the Court of Sessions pursuant to  

the  amendment  to  the  Code of  Criminal  Procedure.  The  

decisions  upon which  the  High Court  placed reliance  did  

not,  however,  deal  with  those kind  of  fact  situations.  In  

Manujendra Dutt’s  case (supra) the proceedings in the  

Court in which the suit  was instituted had concluded. At  

any rate, no vested right could be claimed for a particular  

forum for litigation. The decisions of this Court referred to  

by  us  earlier  settle  the  legal  position  which  bears  no  

repetition.  It  is  also  noteworthy  that  the  decision  in  

Manujendra  Dutt’s  case  (supra)  was  subsequently  

overruled  by  a  seven-Judge  Bench  of  this  Court  in   V.

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Dhanapal  Chettiar  v.  Yesodai  Ammal (1979) 4 SCC  

214  though on a different legal point.   

15. So  also  the  decision  of  this  Court  in  Smt.  R.  

Sharadamma’s case (supra) relied upon by the Full Bench  

was distinguishable on facts. The question there related to a  

liability incurred under a repealed enactment.  Proceedings  

in the forum in which the case was instituted had concluded  

and the matter had been referred to Inspecting Assistant  

Commissioner  before  the  dispute  regarding  jurisdiction  

arose.  

16. The  decision  of  this  Court  in  R.  Kapilanath’s  case  

(supra),  relied  upon  by  the  Full  Bench  was  also  

distinguishable  since  that  was  a  case  where  the  eviction  

proceedings before the Court of Munsif under the Karnataka  

Rent Control Act, 1961 had concluded when the Karnataka  

Rent Control (Amendment) Act, 1994 came into force. By  

that  amendment,  the  Court  of  Munsif  was  deprived  of  

jurisdiction in such cases. This Court held that the change of  

forum did not affect pending proceedings. This Court further  

held that the challenge to the competence of the forum was

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raised for the first time, that too as an additional ground  

before this Court and that, for other factors, the Court was  

inclined to uphold the jurisdiction of the Court of Munsif to  

entertain and adjudicate upon the eviction matter. The fact  

situation was thus different in this case.  

17. Even otherwise the Full Bench failed to notice the law  

declared by this Court in a series of pronouncements on the  

subject to which we may briefly refer at this stage. In Nani  

Gopal Mitra v. State of Bihar AIR 1970 SC 1636,  this  

Court  declared  that  amendments  relating  to  procedure  

operated  retrospectively  subject  to  the  exception  that  

whatever be the procedure which was correctly adopted and  

proceedings concluded under the old law the same cannot  

be reopened for the purpose of applying the new procedure.  

In that case the trial of the appellant had been taken up by  

Special Judge, Santhal Paraganas when Section 5(3) of the  

Prevention of Corruption Act, 1947 was still operative.  The  

appellant  was  convicted  by  the  Special  Judge before  the  

Amendment  Act  repealing Section 5(3)  was promulgated.  

This  Court  held  that  the  conviction  pronounced  by  the

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Special Judge could not be termed illegal just because there  

was an amendment to the procedural law on 18th December  

1964. The following passage is, in this regard, apposite:  

“…. It is therefore clear that as a general rule the   amended  law  relating  to  procedure  operates   retrospectively.  But  there  is  another  equally   important principle, viz. that a statute should not be   so  construed  as  to  create  new  disabilities  or   obligations  or  impose  new  duties  in  respect  of   transactions  which were  complete  at  the  time the   amending  Act  came  into  force--(See  In  re  a  Debtor,  and In re Vernazza. The same principle is   embodied  in  Section 6 of  the  General  Clauses  Act  which is to the following effect:

xx xx xx (Section 6 is quoted) xx xx xx

….  The effect of the application of this principle is   that pending cases although instituted under the old   Act  but  still  pending  are  governed  by  the  new  procedure  under  the  amended  law,  but  whatever   procedure  was  correctly  adopted    and  concluded    under the old law cannot be opened again for the  purpose  of  applying  the  new  procedure.  In  the  present case, the trial of the appellant was taken up   by  the  Special  Judge,  Santhal  Parganas  when  Section  5(3)  of  the  Act  was  still  operative.  The  conviction of the appellant was pronounced on March   31,  1962  by  the  Special  Judge,  Santhal  Parganus   long before the amending Act was promulgated. It is   not  hence possible  to  accept  the argument of  the   appellant  that  the  conviction  pronounced  by  the   Special Judge, Santhal Parganas has become illegal   or  in  any  way  defective  in  law  because  of  the   amendment  to  procedural  law made on December   18, 1964. In our opinion, the High Court was right in   invoking the presumption under Section 5(3) of the   Act even though it was repealed on December 18,   1964 by the amending Act. We accordingly reject the   argument  of  the  appellant  on  this  aspect  of  the   case.”

                                         (emphasis supplied)

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18.   Reference may also be made upon the decision of this  

Court in  Anant Gopal Sheorey v. State of Bombay AIR  

1958 SC 915 where the legal  position was stated in the  

following words:  

“4. The question that arises for decision is whether   to  a  pending  prosecution  the  provisions  of  the   amended Code have become applicable. There is no   controversy on the general  principles applicable to   the case. 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 the case is pending and   if by an Act of Parliament the mode of procedure is   altered  he  has  no  other  right  than  to  proceed   according  to  the  altered  mode.  See  Maxwell  on  Interpretation of  Statutes on p.  225; The Colonial   Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369,   372).  In  other  words  a  change  in  the  law  of   procedure  operates  retrospectively  and  unlike  the   law relating to vested right is not only prospective.”

19. The upshot of  the above discussion is  that  the view  

taken by the Full Bench holding the amended provision to be  

applicable to pending cases is not correct on principle.  The  

decision rendered by the Full Bench would, therefore, stand  

overruled but only prospectively. We say so because the trial  

of the cases that were sent back from Sessions Court to the  

Court of Magistrate First Class under the orders of the Full  

Bench  may  also  have  been  concluded  or  may  be  at  an

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advanced stage.  Any change of forum at this stage in such  

cases would cause unnecessary and avoidable hardship to  

the accused in those cases if they were to be committed to  

the Sessions for trial in the light of the amendment and the  

view expressed by us.  

20. The  principle  of  prospective  overruling  has  been  

invoked  by  this  Court,  no  matter  sparingly,  to  avoid  

unnecessary hardship and anomalies. That doctrine was first  

invoked by this Court in I.C. Golak Nath and Ors. v. State  

of Punjab and Ors. AIR 1967 SC 1643 followed by the  

decision of this Court in Ashok Kumar Gupta and Anr. v.   

State of U.P. and Ors. (1997) 5 SCC 201.

21. In  Baburam v. C.C. Jacob and Ors. (1999) 3 SCC  

362,  this Court invoked and adopted a device for avoiding  

reopening of settled issues, multiplicity of proceedings and  

avoidable litigation. The Court said:

“5.  The prospective  declaration  of  law is  a  devise   innovated by the apex court to avoid reopening of   settled  issues  and  to  prevent  multiplicity  of  proceedings. It is also a devise adopted to  avoid  uncertainty and avoidable litigation. By the very  object of prospective declaration of law, it is deemed  that all actions taken contrary to the declaration of   law prior to its date of declaration are validated. This  

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is done in the larger public interest. Therefore, the   subordinate forums which are legally bound to apply   the declaration of law made by this Court are also   duty-bound  to  apply  such  dictum  to  cases  which   would  arise  in  future  only.  In  matters  where   decisions  opposed to  the said  principle  have been   taken  prior  to  such  declaration  of  law  cannot  be   interfered with on the basis of such declaration of   law…”

           (emphasis supplied)

22. To  the  same  effect  is  the  decision  of  this  Court  in  

Harish Dhingra v. State of Haryana & Ors. (2001) 9  

SCC 550 where this Court observed:

“7.  Prospective  declaration  of  law  is  a  device  innovated by this Court to avoid reopening of settled   issues and to prevent multiplicity of proceedings.  It is also a device adopted to avoid uncertainty and  avoidable  litigation.  By  the  very  object  of   prospective declaration of law it is  deemed that all   actions taken contrary to the declaration of law, prior   to the date of the declaration are validated. This is   done  in  larger  public  interest.  Therefore,  the  subordinate  forums  which  are  bound  to  apply  law  declared by this Court are also duty bound to apply   such  dictum to  cases  which  would  arise  in  future.   Since it  is  indisputable that a court can overrule a   decision there is no valid reason why it should not be   restricted  to  the  future  and  not  to  the  past.   Prospective  overruling  is  not  only  a  part  of   constitutional  policy  but  also  an  extended  facet  of   stare decisis and not judicial legislation.”

(emphasis  supplied)

23. In Sarwan Kumar and Anr. v. Madan Lal Aggarwal   

(2003) 4 SCC 147, this Court held that though the doctrine

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of prospective overruling was initially made applicable to the  

matters  arising  under  the  Constitution  but  subsequent  

decisions  have  made  the  same  applicable  even  to  cases  

under different statutes.  The Court observed:

“15.  The  doctrine  of  "prospective  overruling"  was   initially made applicable to the matters arising under   the  Constitution  but  we understand  the  same has   since been made applicable to the matters  arising   under  the  statutes  as  well.  Under  the  doctrine  of   "prospective  overruling"  the  law  declared  by  the  Court applies to the cases arising in future only and   its  applicability  to  the  cases  which  have  attained   finality  is  saved  because  the  repeal  would  otherwise  work  hardship  to  those  who  had  trusted to its existence. Invocation of doctrine of   "prospective  overruling"  is  left  to  the discretion of   the court to mould with the justice of the cause or   the matter before the court.”

   (emphasis supplied)

24. In  Rajasthan  State  Road  Transport  Corporation  

and Anr. v. Bal Mukund Bairwa (2009) 4 SCC 299, this  

Court  relied  upon  the  observations  made  by  Justice  

Benjamin N. Cardozo in his famous compilation of lectures  

The  Nature  of  Judicial  Process –  that “  in  the  vast  

majority of cases, a judgment would be retrospective.  It is   

only where the hardships are too great that retrospective   

operation is withheld.”

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25. The present case, in our opinion, is one in which we  

need to make it clear that the overruling of the Full Bench  

decision of the Madhya Pradesh High Court will  not affect  

cases that have already been tried or are at an advanced  

stage before the Magistrates in terms of the said decision.

26. With the above observations,  this  appeal  fails  and is  

hereby dismissed.                                             

......................…......………………....………..……J. (T.S. THAKUR)

     ....................... …......………………....………..……J (FAKKIR MOHAMED IBRAHIM KALIFULLA)  

New Delhi February 26, 2013