Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL APPELLATE/ORIGINAL JURISIDCTION

CRIMINAL APPEAL NO. 67 OF 2011

Securities and Exchange Board of India … Appellant(s)

versus

Classic Credit Ltd. … Respondent(s)

With

Criminal Appeal Nos. 68 to 73 of 2011

Civil Appeal Nos. 102-103 of 2011

Criminal Appeal No.1096 of 2013

Writ Petition (Crl.) No. 67 of 2016

Criminal Appeal No. 1450 of 2017 (Arising out of SLP(Crl.) No.3593 of 2011)

Civil Appeal No.10729 of 2017 Arising out of SLP(C) No. 21394 of 2011

J U D G M E N T

Jagdish Singh Khehar, CJI.

1. Leave granted, in all the special leave petitions.

2. Complaints  were  filed  against  the  private  parties  herein,  for

offences punishable under the Securities and Exchange Board of India

Act, 1992 (hereinafter referred to as ‘the SEBI Act’).  At the time when

the  complaints  were  filed  under  Section  26(2)  of  ‘the  SEBI  Act’,  the

concerned accused were to be tried by a Metropolitan Magistrate (or, a

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Judicial  Magistrate  of  the  first  class).   In  this  bunch  of  cases,  the

contention before this Court, at the behest of the private parties is, that

for  offences  allegedly  committed  before  29.10.2002  (whether  or  not,

taken up for trial before 29.10.2002) the trial was to be conducted by the

concerned Metropolitan Magistrate (or, a Judicial Magistrate of the first

class),  and none  other.   It  is  relevant  to  record,  that  in  these  cases

complaints filed against the private parties herein, pertain to allegations

of  commission  or  omission,  prior  to  29.10.2002.   In  some  of  these

matters, proceedings were initiated prior to 29.10.2002, while in others,

it was initiated after 29.10.2002.  The above contention pertaining to the

‘forum’, for trial by a Metropolitan Magistrate (or, a Judicial Magistrate of

the first class), was premised on a purely legal assertion, founded on the

format of Sections 24 and 26 of ‘the SEBI Act’, as they existed prior to

the  Securities  and  Exchange  Board  of  India  (Amendment)  Act,  2002

(hereinafter  referred  to  as  ‘the  2002  Amendment  Act’).   It  was  the

submission of  the private parties,  that  the amended provisions under

‘the 2002 Amendment Act’ had no express or implied retrospective effect,

and therefore, the amendment carried out through ‘the 2002 Amendment

Act’, would not have any impact, particularly on the ‘forum’ for trial (-the

Court  of  Metropolitan  Magistrate,  or  Judicial  Magistrate  of  the  first

class).  It was submitted, that trial in all these matters, with reference to

offences  committed  prior  to  29.10.2002,  whether  or  not  put  to  trial,

could  only  be  conducted  by  the  Metropolitan  Magistrate  (or,  Judicial

Magistrate of the first class).   

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3. In order to appreciate the gamut of the submissions advanced, it is

imperative to extract hereunder, Sections 24 and 26 of ‘the SEBI Act’, in

the  format  in  which  the  provisions  existed,  prior  to  ‘the  2002

Amendment Act’.  The same are accordingly reproduced below:

“24. Offences. -(1) Without prejudice to any award of penalty by the adjudicating  officer  under  this  Act,  if  any  person  contravenes  or attempts to contravene or abets the contravention of the provisions of this Act or of any rules or regulations made thereunder, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. (2) If any person fails to pay the penalty imposed by the adjudicating officer or fails to comply with any of his directions or orders, he shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to  three years or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees or with both.

xxx xxx xxx 26.  Cognizance  of  offences  by  courts.-(1)  No  court  shall  take cognizance of any offence punishable under this Act or any rules or regulations  made  thereunder,  save  on  a  complaint  made  by  the Board.  (2) No court inferior to that of     a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try an offence punishable under this Act.”  

It is also necessary to notice the change brought in, on the subject of

‘forum’ for trial, by ‘the 2002 Amendment Act’.  Even though, the change

of ‘forum’ was expressed in the amended Section 26(2), yet some of the

submissions advanced during the course of hearing, emerged out of a

collective  reading of  the amended Sections  24 and 26 (-by ‘the  2002

Amendment Act’).  Accordingly, the format which Sections 24 and 26 of

‘the SEBI Act’ assumed, after ‘the 2002 Amendment Act’ also needs to be

noticed.   The  above  amended  provisions,  are  accordingly  reproduced

below:

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“24.Offences. -(1) Without prejudice to any award of penalty by the adjudicating officer under this Act,  if  any person contravenes or attempts to contravene or abets the contravention of the provisions of this Act or of any rules or regulations made thereunder, he shall be punishable with imprisonment for a term which may extend to ten  years,  or  with  fine,  which  may  extend  to  twenty-five  crore rupees or with both. (2)  If  any  person  fails  to  pay  the  penalty  imposed  by  the adjudicating officer or fails to comply with any of his directions or orders, he shall be punishable with imprisonment for a term which shall  not  be less than one month but which may extend to     ten years or with fine, which may extend to twenty-five crore rupees or with both.

xxx xxx xxx  26. Cognizance  of  offences  by  courts.-(1)  No  court  shall  take cognizance of any offence punishable under this Act or any rules or regulations made thereunder,  save on a complaint  made by the Board.  (2)  No court  inferior  to  that  of     a  Court  of  Session shall  try  any offence punishable under this Act.”  

4. After  ‘the  2002  Amendment  Act’,  all  pending  matters  (-before

Metropolitan Magistrates, or Judicial Magistrates of the first class) were

committed to the concerned, Court of Session.  This was done, under the

assumption,  that  ‘the  2002  Amendment  Act’  had  the  effect  of

retrospectively altering the ‘forum’ for trial.  And as such, matters which

were being tried by Metropolitan Magistrates (or, Judicial Magistrates of

the first class), and were pending before such Courts, were transferred to

the concerned Court of Session. The above change of ‘forum’ for trial,

was assailed by some of the private parties, before the court to which the

matters were committed.  Their challenge failed.  The matters were then

carried,  to  the  jurisdictional  High  Court,  i.e.,  the  High  Court  of

Judicature  at  Bombay  (hereinafter  referred  to  as,  ‘the  Bombay  High

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Court’).  Alternatively, some of the private parties, directly approached

the jurisdictional High Court, to assail the changed ‘forum’ of trial.   

5. Before  the  Bombay  High  Court,  the  SEBI  supported  the

determination  rendered  by  the  Court  of  Session,  and  also,  placed

reliance on a decision rendered by the High Court of Delhi at New Delhi

(hereinafter referred to as ‘the Delhi High Court’) in Panther Fincap and

Management Services  Ltd.  v.  Securities  and Exchange Board of  India

(decided  on  5.9.2006),  wherein  it  had  been  concluded,  that  the

amendment  to  Section  26  of  ‘the  SEBI  Act’  through  ‘the  2002

Amendment Act’, related to a change in ‘forum’ of trial, and therefore, the

amendment was only procedural. And consequently, an amendment of

procedure being impliedly retrospective, the Delhi High Court held, that

the committal of pending cases to the Court of Session, was justified in

law.   

6. A Division Bench of the Bombay High Court, through the impugned

judgment dated 16.01.2008, collectively disposed of all matters pending

before it, by setting aside the judgment rendered by the Court of Session,

by taking a view different from the one recorded by the Delhi High Court.

The  SEBI  therefore  approached  this  Court  to  assail  the  judgment

rendered by the Bombay High Court.  Some of the cases in this group of

cases (being collectively disposed of through the instant judgment), arise

out of the judgment of the Bombay High Court dated 16.01.2008.  All the

remaining  cases,  arise  out  of  a  similar  sequence  of  events,  which

culminated before the Delhi High Court, wherein the lead judgment was

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rendered in Mahender Singh v.  High Court  of  Delhi  (Writ  Petition (C)

No.141 of 2007, decided on 11.01.2008).  It is apparent, that the above

judgment of the Delhi High Court dated 11.01.2008, was rendered just a

few days before the impugned judgment was rendered by the Bombay

High Court, on 16.01.2008.   

7. Consequent upon an interpretation of the amendment to Section

26 by ‘the 2002 Amendment Act’, the Division Bench of the Delhi High

Court, through the above judgment dated 11.01.2008 (as already noticed

above),  held  that  after  the  amendment  of  Section  26  by  ‘the  2002

Amendment Act’,  offences under ‘the SEBI Act’,  were to be tried by a

Court of Session.  It is also necessary for us to mention, that the Bombay

High Court did not refer to the above judgment dated 11.01.2008, since

it  may  not  have  come to  its  notice,  as  the  Bombay  High  Court  had

reserved orders in the matter on 22.02.2007 –  well before the Division

Bench  of  the  Delhi  High  Court,  had  pronounced  its  judgment  (-  on

11.01.2008).   The  judgment  dated  11.01.2008 rendered  by the  Delhi

High Court (recording a view, contrary to that expressed by the Bombay

High Court) has been assailed by private parties,  affected by the change

of  ‘forum’  of  trial,  from  the  Court  of  Metropolitan  Magistrate  (or,  a

Judicial Magistrate of the first class), to the Court of Session.

8. Whilst these matters were pending before this Court, ‘the SEBI Act’

was  again  amended,  by  the  Securities  and  Exchange  Board  of  India

(Amendment) Act, 2014 (hereinafter referred to, as ‘the 2014 Amendment

Act’).  It is relevant for the present controversy to notice, that by ‘the

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2014 Amendment Act’,  Section 26(2) was omitted from ‘the SEBI Act’,

and  Sections  26A  to  26E  were  inserted  therein,  with  effect  from

18.07.2013.   During  the  course  of  hearing,  one  of  the  contentions

advanced by learned counsel representing SEBI was, that the effect and

impact of ‘the 2002 Amendment Act’   with reference to the change of

‘forum’ for trial  under Section 26(2),  from the Metropolitan Magistrate

(or, the Judicial Magistrate of the first class), to the Court of Session,

had again been altered.  It was submitted, that all pending matters were

now to be tried by a Special Court, in terms of ‘the 2014 Amendment

Act’,  and  therefore,  all  the  cases  in  hand,  had  been  rendered

infructuous, because now the ‘forum’ for trial had again been changed.

The instant position, canvassed on behalf of ‘the SEBI’,  was seriously

contested by learned counsel representing the private parties.  Having

examined  the  contention,  we  are  of  the  considered  view,  that  it  is

imperative  for  us  (during  the  course  of  the  present  adjudication),  to

render a determination on the effect and impact of ‘the 2014 Amendment

Act’, as well.  It is therefore, that learned counsel for the rival parties

were heard, and they advanced detailed submissions on this aspect of

the matter, as well.   

9. Since we will also be dealing with the jurisdictional effect of ‘the

2014  Amendment  Act’,  to  matters  where  the  offence(s)  was/were

committed  before  29.10.2002 (whether  or  not,  put  up for  trial  before

29.10.2002).  It is necessary for us, to extract herein Sections 26A to 26E

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inserted into ‘the SEBI Act’  through ‘the 2014 Amendment Act’.   The

above provisions are accordingly reproduced below:

‘‘26A.  Establishment  of  Special  Courts.-(1)  The  Central Government  may,  for  the  purpose  of  providing  speedy  trial  of offences under this Act, by notification, establish or designate as many Special Courts as may be necessary.  (2)  A Special  Court shall  consist  of  a single judge who shall  be appointed by the Central Government with the concurrence of the Chief Justice of the High Court within whose jurisdiction the judge to be appointed is working.  (3) A person shall not be qualified for appointment as a judge of a Special Court unless he is, immediately before such appointment, holding the office of a Sessions Judge or an Additional Sessions Judge, as the case may be.  26B. Offences triable by Special Courts.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences  under  this  Act  committed  prior  to  the  date  of commencement of the Securities Laws (Amendment) Act, 2014 or on  or  after  the  date  of  such  commencement,  shall  be  taken cognizance of and tried by the Special  Court established for the area in which the offence is committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court concerned.  26C. Appeal and revision.- The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974) on a High Court,  as  if  a  Special  Court  within  the  local  limits  of  the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.  26D.  Application  of  Code  to  proceedings  before  Special  Court.- (1)  Save as otherwise provided in this Act, the provisions of  the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to the proceedings before a Special Court and for the purposes of the said provisions,  the  Special  Court  shall  be  deemed to  be a  Court  of Session and the person conducting prosecution before a Special Court  shall  be  deemed  to  be  a  Public  Prosecutor  within  the meaning  of  clause  (u)  of  section  2  of  the  Code  of  Criminal Procedure, 1973 (2 of 1974).  (2) The person conducting prosecution referred to in sub-section (1) should have been in practice as an advocate for not less than seven years or should have held a post,  for a period of  not less than seven  years,  under  the  Union  or  a  State,  requiring  special knowledge of law.  26E. Transitional  provisions.-  Any offence committed under this Act, which is triable by a Special Court shall, until a Special Court

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is  established,  be  taken  cognizance  of  and  tried  by  a  Court  of Session  exercising  jurisdiction  over  the  area,  notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):  Provided  that  nothing  contained  in  this  section  shall  affect  the powers  of  the  High  Court  under  section  407  of  the  Code  of Criminal Procedure, 1973 (2 of 1974) to transfer any case or class of  cases  taken  cognizance  by  a  Court  of  Session  under  this section.''.

10. Ms.  Pinky  Anand,  learned  Additional  Solicitor  General  of  India,

whilst  appearing  on  behalf  of  the  SEBI,  laid  the  foundation  of  her

submissions by asserting, that it was a settled proposition of law, that

alteration of substantive law is always presumed and treated as having

only  prospective  implications,  unless  the  legislative  enactment  itself,

expressly  or  impliedly  mandates  it  to  be  retrospective.  And  in

contradistinction to the above, it was submitted, that an amendment to a

procedural  enactment  is  always  presumed  and  treated  to  have

retrospective  effect,  except  when  intended  otherwise,  expressly  or

impliedly,  through  the legislation itself.   Accordingly,  it  was asserted,

that change of ‘forum’ for trial, having merely procedural connotations,

the same was bound to be treated as retrospective, especially because

there was no express or implied intent in the legislative enactments (‘the

2002  Amendment  Act’;  and  ‘the  2014  Amendment  Act’)  that  the

amendments were intended to have prospective effect.   

11. Additionally, it was submitted, that in the facts and circumstances

of this case, there would be absolutely no prejudice caused to the private

parties, by change of ‘forum’ for trial, firstly, by transfer of proceedings

from the Metropolitan Magistrates  (or,  the Judicial  Magistrates  of  the

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first class),  to the Court of Session, and thereafter, by the transfer of

proceedings from the Court of Session, to that of the Special Court.  The

absence of any alleged prejudice to the accused, in the pleadings filed on

behalf of the private parties before this Court, and the absence of any

such  submissions,  during  the  course  of  hearing  (to  demonstrate

prejudice), according to learned counsel, leave no room for any doubt,

that the litigation initiated by the private parties, based on the above

mentioned jurisdictional issue, was only a ploy to delay the prosecution

initiated against them, by SEBI.   

12. It  was  also  the  contention  of  the  learned  Additional  Solicitor

General representing SEBI, that ‘the SEBI Act’ was an enactment, which

provided  for  a  wholesome  special  procedure  to  deal  with  criminal

implications, on account of the violation of the provisions of ‘the SEBI

Act’.   It  was  submitted,  that  the  provisions  of  ‘the  SEBI  Act’,  were

separate and distinct, from the general provisions contained in the Code

of Criminal Procedure.  Since, according to learned counsel, a special

enactment is always presumed to have an overriding effect over a general

enactment,  the  postulation  of  a  special  ‘forum’  under  ‘the  SEBI  Act’,

would have an overriding effect, over the general provisions contained in

the Code of Criminal Procedure. It was also submitted, that ‘the SEBI

Act’ provided a complete code for prosecution of offences under ‘the SEBI

Act’, and as such, reference to the provisions of the Code of Criminal

Procedure, on the subject(s) expressly provided for, included the ‘forum’

for trial, would not be proper.

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13. In  order  to  substantiate  her  contention,  that  alteration  in

procedure, had an implied retrospective effect, and further, that there

was no vested right with a litigant, on a matter of procedure, learned

Additional Solicitor General, placed reliance on a number of judgments.

We shall first endeavour to refer to the same hereunder:

(i) In  the  first  instance,  reliance  was  placed  on  Union  of  India  v.

Sukumar  Pyne,  AIR  1966  SC  1206,  a  judgment  rendered  by  a

Constitution Bench, wherein this Court observed as under:

“9. Mr Chatterjee, the learned counsel for the respondent, urges that a substantive vested right to be tried by an ordinary Court existed  before  the  amendment,  and  he  relied  on  Maxwell  11th Edn.,  p.  217,  where  it  is  stated  that  “the  general  principle, however,  seems  to  be  that  alterations  in  procedure  are retrospective,  unless  there  be  some good reason against  it.”  He says that there is a good reason if  the principles of  Art.  20 are borne in mind. In our opinion, there is force in the contention of the learned Solicitor-General.  As observed by this Court in 1953 SCR 1188: (AIR 1953 SC 394) a person accused of the commission of an offence has no vested right to be tried by a particular Court or  a  particular  procedure  except  insofar  as  there  is  any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognized that “no person has a vested right in any course of  procedure” (vide Maxwell  11th  Edn.,  p.  216),  and  we  see  no  reason  why  this ordinary rule should not prevail in the present case. There is no principle  underlying  Art.  20  of  the  Constitution  which makes  a right  to  any  course  of  procedure  a  vested  right.  Mr  Chatterjee complains that there is no indication in the Amending Act that the new procedure would be retrospective and he further says that this affects his right of appeal under the Criminal Procedure Code. But if this is a matter of procedure, then it is not necessary that there should be a special provision to indicate that the new procedural law  is  retrospective.  No  right  of  appeal  under  the  Criminal Procedure Code is affected because no proceedings had ever been started under the Criminal Procedure Code.”     

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(ii) Reliance  was  then  placed  on  Ramesh  Kumar  Soni  v.  State  of

Madhya  Pradesh,  (2013)  14  SCC  696,  wherefrom,  our  attention  was

drawn to the following observations:

“2. The  factual  matrix  in  which  the  controversy  arises  may  be summarised as under: Crime No. 129 of 2007 for commission of offences punishable under Sections 408, 420, 467, 468 and 471 IPC  was  registered  against  the  appellant  on  18-5-2007,  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 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  IPC  triable  by  the  Court  of Session instead  of  a  Magistrate  of  First  Class.  The  amendment received  the  assent  of  the  President  on  14-2-2008  and  was published  in  Madhya  Pradesh  Gazette  (Extraordinary)  on 22-2-2008.

xxx xxx xxx 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. 10. In New India Insurance Co. Ltd. v. Shanti Misra (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 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

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to make it retrospective. The following passages are in this regard apposite: (SCC pp. 844-45, paras 5-6)

“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 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

13

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 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.”

11. In  Hitendra Vishnu Thakur v.  State of Maharashtra (1994) 4 SCC 602, one of the questions which this Court was examining was  whether  clause  (bb)  of  Section  20(4)  of  the  Terrorist  and Disruptive  Activities  (Prevention)  Act,  1987  introduced  by  an Amendment Act governing Section 167(2) CrPC in relation to TADA matters was in the realm of procedural law and if so, whether the same  would  be  applicable  to  pending  cases.  …..  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: (SCC p. 633, para 26)

“(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.”

12. We may also refer to the decision of this Court in  Sudhir G. Angur v. M. Sanjeev (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 (1952) 54 Bom. LR 330 and observed: (SCC p. 148, para 11)

“11. … 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

14

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.”

xxx xxx xxx 19. ….. 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. ….. This Court held that the  conviction  pronounced  by  the  Special  Judge  could  not  be termed  illegal  just  because  there  was  an  amendment  to  the procedural  law on 18-12-1964. The following passage is,  in this regard, apposite: (AIR p. 1639, paras 5-6)

“5. … 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  A Debtor, In re, ex p Debtor (1936) 1 Ch 237 (CA) and  Attorney General v.  Vernazza  1960  AC  965).  The  same  principle  is embodied in Section 6 of the General Clauses Act which is to the following effect:

* * * 6. 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. …..  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 18-12-1964. 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 18-12-1964 by the amending  Act.  We  accordingly  reject  the  argument  of  the appellant on this aspect of the case.”       

(iii) Reliance  was  then  placed  on  Kamlesh  Kumar  v.  State  of

Jharkhand, (2013) 15 SCC 460.  In this judgment, the main opinion was

rendered by H.L.  Gokhale,  J.,  and a concurring order was passed by

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Madan B. Lokur, J.  Reliance was placed on the following observations

from the judgment rendered by H.L. Gokhale, J.:

“19. The First  Schedule to CrPC deals  with the classification of offences.  Part  I  thereof  deals  with  the offences under the Penal Code,  1860,  Part  II  deals  with  classification  of  offences  against other  laws,  which  would  include  offences  under  laws  such  as FERA. The petitioners were being prosecuted under Section 56 of FERA, wherein the maximum punishment that could be awarded was up to seven years. The second entry of this Part II laid down that such offences were triable by a Magistrate of the First Class, provided those offences were cognizable offences. As noted earlier, Section  62  of  FERA  made  the  offence  under  Section  56 non-cognizable. Besides, Section 61(1) of FERA stated that “it shall be lawful” for the Magistrate to pass the necessary sentence under Section  56.  It  does  not  state  that  the  Magistrate  alone  is empowered  to  pass  the  necessary  sentence,  in  which  case  the proceeding cannot be transferred from his Court. This provision is not like the one in  A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 where  under  Section 7(1)  of  the  Criminal  Law Amendment  Act, 1952 the offence was “triable by Special Judge only”. In the instant case it  was merely  lawful  for  the Magistrate  to  try  the offences under Section 61, but the Court of the Magistrate was not a court of  exclusive  jurisdiction  as  in  Antulay case.  The  offence  was  a non-cognizable  one,  and therefore  it  was  not  mandatory  that  it ought to have been tried only by the Magistrate of the First Class. Thus the petitioner could not claim that the Magistrate had the special jurisdiction to try the offence, and that the State could not transfer the case to the Sessions Judge.  In view of what is stated above,  it  cannot  be  said  that  the  Magistrate’s  Court  had  an exclusive jurisdiction to try the cases relating to violations of the provisions of FERA, and those cases could not be transferred to the Special  Judge.  In  the  present  case  the  accused  were  common, many  of  the  witnesses  would  be  common,  and  so  also  their evidence. The administrative power of the High Court in such a situation  to  effect  transfer  has been upheld  in    Ranbir  Yadav  v. State of Bihar (1995) 4 SCC 392  , and there is no reason for this Court to take a different view in the facts of the present case. 20. The  petitioner  had  relied  upon  the  judgment  of  a  Division Bench of the Delhi High Court in  A.S. Impex Ltd. v. Delhi High Court  (2003)  107  DLT  734,  on  the  question  of  transfer  of  a proceeding.  Mr Malhotra pointed out that although the judgment in Ranbir Yadav was brought to the notice of the Division Bench in that  matter,  the  Division  Bench  had  erroneously  held  that  the reliance thereon to be a “misplaced” one, as can be seen from the sentence at the end of para 12 of that judgment. This judgment

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has been distinguished and found to be not laying down a good law by another Division Bench of the Delhi High Court in  Mahender Singh v.  High Court of Delhi (2009) 151 Comp Cas 485 (Del). In that matter, the Court was concerned with transfer of prosecutions under the Securities and Exchange Board of India Act, 1992 from the Magistrate’s Court to the Court of Session, and the High Court has  held  it  to  be  valid  and permissible.  The  Division  Bench in Mahender Singh has in terms held that reliance on the judgment in A.R. Antulay to oppose such transfer was of no help, and rightly so. There is no difficulty in stating that  A.S. Impex Ltd.  does not lay down the correct proposition of law. 21. The High Court does have the power to transfer the cases and appeals  under  Section  407  CrPC which is  essentially  a  judicial power. Section 407(1)(c) CrPC lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of  justice,  the High Court  could transfer such a case for trial to a Court of Session. That does not mean that the  High  Court  cannot  transfer  cases  by  exercising  its administrative power of  superintendence which is  available to it under Article 227 of the Constitution of India.  While repelling the objection to the exercise of this power, this Court observed in para 13 of   Ranbir Yadav   as follows: (SCC p. 400)

“  13  . We are unable to share the above view of Mr Jethmalani. So long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceeding we do not find any reason to hold that  administrative  powers must yield  place  to  judicial  powers  simply  because  in  a  given circumstance they coexist.”

22.   For  the reasons stated above,  there  is  no substance in the objections raised by the petitioners.  The High Court  has looked into  Section 407 CrPC,  referred  to  Articles  227 and 235 of  the Constitution of India, and thereafter in its impugned judgment has observed as follows:

“  Having perused Section 407 CrPC and Articles 227 and 235, I have  no  hesitation  to  hold  that  this  Court  either  on  the administrative  side  or  in  the  judicial  side  has  absolute jurisdiction to transfer any criminal cases pending before one competent  court  to  be  heard  and  decided  by  another  court within  the  jurisdiction  of  this  Court.  This  Court  in  its administrative power can issue direction that cases of particular nature shall be heard by particular court having jurisdiction.”

In view of what is stated earlier, we have no reason to take a view different from the one taken by the High Court. Both the special leave petitions (criminal) are, therefore, dismissed.”

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From the  observations  recorded  by  Madan B.  Lokur,  J.  reliance  was

placed on the following:

“30. It was contended that assuming that at law the case could validly have been transferred to the Special Judge, the petitioners are seriously prejudiced inasmuch as their right of appeal from the decision of a Magistrate to a Sessions Judge is taken away. Due to this prejudicial action, which was taken by the High Court without hearing the petitioners,  the notification conferring power on the Special Judge to try the case should be struck down.

xxx xxx xxx 33. Similarly, in   Maria Cristina De Souza Sodder   v.   Amria Zurana Pereira  Pinto  (1979)  1  SCC  92   it  was  held  somewhat  more elaborately: (SCC p. 97, para 5)

“5. …  It is no doubt well settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or  any remedy in respect  thereof  will  not  be  affected by any repeal  of  the  enactment  conferring  such  right  unless  the repealing  enactment  either  expressly  or  by  necessary implication takes away such right or remedy in respect thereof. … This position, has also been settled by the decisions of the Privy Council and this Court (vide  Colonial Sugar Refining Co. Ltd. v.  Irving 1905  AC  369  and  Garikapati  Veeraya v.  N. Subbiah Choudhry AIR 1957 SC 540) but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore,  the  appeal,  the  right  to  which has  arisen under  a repealed Act, will have to be lodged in a forum provided for by the repealing Act.”

34. In   T. Barai   v.   Henry Ah Hoe (1983) 1 SCC 177,    it was observed in para 17 of the Report that a person accused of the commission of an offence has no right to trial by a particular procedure. This view was followed in   Rai Bahadur Seth Shreeram Durgaprasad   v. Director of Enforcement (1987) 3 SCC 27. 35. Therefore,  it  cannot  be  seriously  urged  that  the  petitioners were prejudiced by a change of the appellate forum.

xxx xxx xxx 43. While the revisional power of a superior court actually enables it  to correct a grave error,  the existence of  that power does not confer  any corresponding right  on a  litigant.  This  is  the reason why, in a given case, a superior court may decline to exercise its power of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is  felicitously  stated  that  a  revision  is  not  a  right  but  only  a “procedural facility” available to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special

18

Judge does not take away this procedural facility available to the petitioners. It only changes the forum and as already held above, the petitioners have no right to choose the forum in which to file an appeal or move a petition for revising an interlocutory order.

xxx xxx xxx 45. In  A.S.  Impex  case  (2003)  107  DLT  734,  the  High  Court administratively decided to transfer cases filed under Section 138 of the Negotiable Instruments Act, 1881 on or before 31-12-2001 and  pending  before  the  Magistrates  to  the  Additional  Sessions Judges. A notification for transfer of cases was accordingly issued and this was struck down by the Delhi High Court by, inter alia, relying on the law laid down in  Antulay. As already noted above, the law laid down in  Antulay has limited application and is not relevant to cases such as the one we are dealing with. This was clearly explained in Ranbir Yadav but the Delhi High Court ignored the observations of this Court without much ado by holding: (A.S. Impex case, DLT p. 744, para 12)

“12.  … In that  case the Court  transferred the case from the Court of one Magistrate to the Court of another Magistrate for the reason that  there  was shortage of  accommodation in the first court. That is not the case in hand. It was not a case where the jurisdiction was transferred from the Court of Magistrate to the Court of Session.”

The Delhi High Court also proceeded on an erroneous basis that the exercise of plenary administrative power available to the High Court to transfer cases meant the bypassing or circumventing of statutory provisions empowering the Magistrates to try cases under Section  138  of  the  Negotiable  Instruments  Act,  1881  and conferring  that  jurisdiction  on  Additional  Sessions  Judges.  The High Court did not correctly appreciate the power available to a High Court under Article 227 of the Constitution.”

(iv) On the instant aspect of the matter, last of all, reliance was placed

on Rajendra Kumar v. Kalyan, (2000) 8 SCC 99.  The Court’s attention

was invited to the following conclusions:

“20. We do feel it expedient to record that the analysis as effected by  the  High  Court  stands  acceptable  and  as  such  we  refrain ourselves from dilating on this aspect of the matter any further. It is pertinent to add in this context that some differentiation exists between a procedural statute and statute dealing with substantive rights and in the normal course of events, matters of procedure are presumed to be retrospective unless there is an express ban onto its retrospectivity. In this context, the observations of this Court in the case of  Jose Da Costa v.  Bascora Sadasiva Sinai Narcornim

19

(1976) 2 SCC 917 is of some relevance. This Court in para 31 of the Report observed: (SCC p. 925)

“31.  Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would  be  appropriate  to  bear  in  mind  two  well-established principles. The first is that while provisions of a statute dealing merely  with  matters  of  procedure  may  properly,  unless  that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment (see Delhi Cloth and General Mills Co. Ltd. v. CIT, AIR 1927 PC 242). The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz. (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect  and  (2)  when  the  court  to  which  appeal  lay  at  the commencement  of  the  suit  stands  abolished (see  Garikapati Veeraya v. N. Subbiah Choudhry AIR 1957 SC 540 and Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369).”

21. Still  later  this  Court  in    Gurbachan  Singh   v.    Satpal  Singh (1990)  1 SCC 445   expressed in the similar  vein as  regards the element of retrospectivity. The English courts also laid that the rule that  an Act  of  Parliament is  not  to  be given retrospective  effect applies only to statutes which affect the vested rights; it does not apply  to  statutes  which  alter  the  form  of  procedure  or  the admissibility  of  evidence,  or  the  effect  which  the  courts  give  to evidence; if  the new Act affects matters of procedure only, then, prima facie, it applies to all actions pending as well as future (see in this context the decisions of the House of Lords in the case of Blyth v. Blyth (1966) 1 All ER 524; A.G. v. Vernazza (1960) 3 All ER 97). In Halsbury’s Laws of England (4th Edn., Vol. 44, para 925, p. 574)  upon  reference  to  Wright v.  Hale (1860)  6  H&N  227  and Gardner v. Lucas (1878) 3 AC 582 (HL) along with some later cases including Blyth v. Blyth it has been stated:

“The  presumption  against  retrospection  does  not  apply  to legislation  concerned  merely  with  matters  of  procedure  or  of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.”

22. The law thus seems to be well settled that no person has, in fact, a vested right in procedural aspect — one has only a right of prosecution or defence in the manner as prescribed by the law for

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the time being and in the event of any change of procedure by an Act of Parliament one cannot possibly have any right to proceed with  the  pending  proceeding  excepting  as  altered  by  the  new legislation  and  as  such  we  need  not  dilate  on  the  issue  any further.”

Based  on  the  conclusions  recorded  by  this  Court  in  the  above  cited

judgments,  it  was  contended,  that  with  reference  to  procedure,  there

could be no dispute, that cognizance to be taken by a court competent at

the time a matter is taken up, can be changed retrospectively, even if the

cause of action had accrued prior to the change (of ‘forum’ for trial).  And

further, that an accused has no vested right, to be tried by a particular

procedure, or by a particular court (forum), except insofar as there is a

mandate (express or implied) in the amending statute, or a constitutional

bar or objection, or the violation of any fundamental right.  Therefore,

when  the  amendments  herein  vested  exclusive  jurisdiction  in  a

particular  court  (-the  Court  of  Session,  consequent  upon  ‘the  2002

Amendment  Act’,  and  the  Special  Court,  consequent  upon  ‘the  2014

Amendment Act’), adjudication could thereupon have only been rendered

by the court with which special jurisdiction was vested (by the respective

amendments).  In such a situation, notwithstanding anything contained

in the Code of  Criminal  Procedure,  the special  enactment would also

have  an  overriding  effect.   It  was  therefore  contended,  that  in  the

absence of any prejudice shown to the private parties before this Court,

it was not open to them, to assail the express determination rendered for

change of ‘forum’, in the first instance, by ‘the 2002 Amendment Act’,

and thereafter, by ‘the 2014 Amendment Act’.

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14. It  was  also  the  contention  of  the  learned  Additional  Solicitor

General  representing  SEBI,  that  the  legislature  enacting  the  original

legislation, surely had the power and the authority to amend the same,

which would include the power to  alter  the ‘forum’  of  trial,  originally

postulated.   Herein  again,  it  was contended,  that  the  aforementioned

proposition, is subject to a general limitation, namely, that the change of

‘forum’ for trial should not prejudicially affect the rights of the party(ies)

facing  prosecution.   Insofar  as  the  instant  aspect  of  the  matter  is

concerned,  learned Additional  Solicitor General  placed reliance on the

declared legal position, by citing the following judgments:

(i) Reliance  was  first  of  all  placed  on  Kamlesh  Kumar  v.  State  of

Jharkhand,  (2013)  15  SCC  460.   Our  attention  was  invited  to  the

following observations recorded therein:

“27.3.  The third reason related to the power of transfer available to this Court under Article 142 of the Constitution. In this context, reference was made to a Constitution Bench decision of this Court in Prem Chand Garg v. Excise Commr. AIR 1963 SC 996 wherein it was observed that: (AIR p. 1002, para 12)

“12. …  The powers of this Court are no doubt very wide and they  are  intended  to  be  and  will  always  be  exercised  in  the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties,  must  not  only  be  consistent  with  the  fundamental rights  guaranteed by the Constitution,  but it  cannot even be inconsistent  with  the  substantive  provisions  of  the  relevant statutory laws.”

Since the order of this Court transferring the case from the Special Judge to the High Court was contrary to the statutory law and (as held in a later part in Antulay) contrary to Article 14 and Article 19 of the Constitution, the order of transfer was liable to be set aside. In this context, this Court also noted that the power to create or enlarge  jurisdiction  is  legislative  in  character  and  no  court,

22

whether superior or inferior or both combined, could enlarge the jurisdiction  of  a  court.  On  this  basis,  inter  alia,  this  Court concluded that the transfer of Antulay case from the Special Judge to the High Court was erroneous in law. 28. Antulay subsequently  came  up  for  consideration  in  Ranbir Yadav v.  State  of  Bihar  (1995)  4  SCC 392.   In  para  14 of  the Report, it was noted that the express language of Section 7(1) of the CLA Act, took away the right of transfer of cases contained in the Code to any other court which was not a Special Court and that this was notwithstanding anything contained in Section 406 and Section 407 of the Code. This is what was said in this regard: (SCC p. 400)

“14.  Coming  now  to  A.R.  Antulay  case we  find  that  the principles of law laid down in the majority judgment, to which Mr  Jethmalani  drew  our  attention  have  no  manner  of application herein.  There questions arose as to whether (  i  ) the High  Court  could  transfer  a  case  triable  according  to  the Criminal Law Amendment Act, 1952 (‘the 1952 Act’, for short) by  a  Special  Court  constituted  thereunder  to  another  court, which was not a Special Court and (  ii  ) the earlier order of the Supreme Court transferring the case pending before the Special Court  to  the High Court  was  valid  and proper.  In  answering both  the  questions  in  the  negative  the  learned  Judges, expressing the majority view, observed that (  i  ) Section 7(1) of the 1952 Act created a condition which was sine qua non for the trial of offences under Section 6(1) of the said Act. The condition was  that    notwithstanding  anything  contained  in  the  Code  of Criminal Procedure or any other law   the said offence shall be triable  by    Special  Judges only  .  By express terms therefore  it took away the right of transfer of cases contained in the Code to any other court which was not a Special  Court and this was notwithstanding anything contained in Sections 406 and 407 of the  Code and  (ii)  the  earlier  order  of  the  Supreme  Court transferring the case to the High Court was not authorised by law,  namely,  Section  7(1)  of  the  1952  Act  and  the  Supreme Court, by its direction, could not confer jurisdiction on the High Court of Bombay to try any case for which it did not possess such jurisdiction under the scheme of the 1952 Act.”

(ii) Reliance was then placed on Nani Gopal Mitra v. State of Bihar, AIR

1970  SC  1636,  and  the  observations  recorded  in  paragraph  6,  were

brought to our notice:

“6. The effect of the application of this principle is that pending cases although instituted under the old Act but still pending are

23

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 Parganas 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 S. 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.”        

(iii) Reliance  was  also  placed  on  Securities  and  Exchange  Board  of

India v.  Ajay  Agarwal,  (2010)  3 SCC 765,  wherefrom learned counsel

pointedly  drew  our  attention  to  the  legal  position  expressed  in

paragraphs 40 and 41, which are reproduced below:

“40. Provisions of Section 11-B being procedural in nature can be applied  retrospectively.  The  Appellate  Tribunal  made  a  manifest error by not appreciating that Section 11-B is procedural in nature. It  is  a  time-honoured  principle  if  the  law  affects  matters  of procedure, then prima facie it  applies to all  actions, pending as well as future. [See K. Kapen Chako v. Provident Investment Co. (P) Ltd. (1977) 1 SCC 593,  wherein A.N.  Ray, C.J.  laid down those principles]. 41. Maxwell in his Interpretation of Statutes also indicated that no one has a vested right in any course of procedure. A person’s right of  either  prosecution  or  defence  is  conditioned  by  the  manner prescribed  for  the  time  being  by  the  law  and  if  by  the  Act  of Parliament, the mode of proceeding is altered, then no one has any other right than to proceed under the alternate mode. (Maxwell on Interpretation  of  Statutes,  11th Edn.,  p.  216.)  These  principles, enunciated by  Maxwell,  have  been quoted  with  approval  by  the Supreme Court  in its  Constitution Bench judgment in    Union of India   v.   Sukumar Pyne, AIR 1966 SC 1206.”

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(iv) Last  of  all,  reliance  was  placed  on A.R.  Antulay  v.  R.S.  Nayak,

(1988) 2 SCC 602, wherefrom, our attention was pointedly drawn to the

following:

“24. Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offences under Section 6(1) of the said Act. The condition is that    notwithstanding anything contained in the Code  of  Criminal  Procedure or  any other  law  ,  the  said  offences shall be triable by    Special Judges only. Indeed conferment of the exclusive  jurisdiction  of  the  Special  Judge  is  recognised  by  the judgment  delivered  by  this  Court  in  A.R.  Antulay v.  Ramdas Sriniwas Nayak (1984) 2 SCR 914 where this Court had adverted to Section 7(1) of the 1952 Act and at p. 931 (SCC p. 514) observed that Section 7 of the 1952 Act conferred exclusive jurisdiction on the Special Judge appointed under Section 6 to try cases set out in Sections 6(1)(a) and 6(1)(b) of the said Act. The court emphasised that  the Special  Judge had exclusive jurisdiction to try  offences enumerated in Section 6(1)(a) and (b).  In spite of this while giving directions in the other matter, that is,   R.S. Nayak   v.    A.R. Antulay (1984) 2 SCR 495,   this Court directed transfer to the High Court of Bombay the cases pending before the Special Judge. It is true that Section 7(1) and Section 6 of the 1952 Act were referred to while dealing with the other matters but while dealing with the matter of directions and giving the impugned directions, it does not appear that the court kept in mind the exclusiveness of the jurisdiction of the Special Court to try the offences enumerated in Section 6.”

Based on the legal position declared by this Court, it was asserted, that

the ‘forum’ for trial, expressed prior to the concerned amendment herein,

did not create a vested right in the accused.  And that, even in matters

where proceedings had already commenced before the amendment, the

amendment  would  have  to  be  given  effect  to.   Furthermore,  the

concerned  accused  were  liable  to  be  proceeded  against,  before  the

changed ‘forum’ (introduced by the amendment).   It  was pointed out,

that while interpreting the provisions of ‘the SEBI Act’ itself, this Court

had held Section 11B to be a procedural provision, having retrospective

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effect, and that, the amended provision would be applicable to pending

cases, even in matters which had arisen prior to the amendment.  It was

submitted  that,  where  a  legislative  enactment  provides  for  a

special/specific ‘forum’ for adjudication, then only such special/specific

‘forum’ can try matters arising under the enactment.  It was submitted,

that in such matters, the jurisdiction of all other courts stood excluded.

15. In  order  to  support  the  contentions  advanced  on  behalf  of  the

SEBI, as have been recorded in the preceding two paragraphs, it was

also  the  contention  of  the  learned  Additional  Solicitor  General,  that

procedure and ‘forum’ for trial postulated by a special law – ‘the SEBI

Act’, would always have an overriding effect over the general law – the

Code  of  Criminal  Procedure.   In  this  behalf,  it  was  contended,  that

Section 26 of  ‘the  SEBI Act’  (consequent upon ‘the 2002 Amendment

Act’)  expressly  provided,  that  “no  court  inferior  to  that  of  a  court  of

session shall try any offence punishable under this Act”. It was therefore

asserted,  that  there  was  no  room  for  any  doubt,  that  the  aforesaid

amendment was made retrospectively, with effect from 29.10.2002.  It

was submitted, that there was no ambiguity in the aforesaid provisions

and it was not possible even on a close examination of the text of the

above amendment, to construe otherwise.  And that,  after 29.10.2002

(i.e.,  the  operative  date  of  ‘the  2002  Amendment  Act’)  criminal

adjudication arising under the provisions of ‘the SEBI Act’ could not be

entertained  by  any  court,  inferior  to  the  Court  of  Session.   It  was

submitted,  that  the  Court  of  Metropolitan  Magistrate/Judicial

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Magistrate, therefore came to be divested of the authority to adjudicate

upon matters arising under ‘the SEBI Act’, after the above amendment.

On the same analogy, it was contended, that consequent upon ‘the 2014

Amendment Act’, whereby, Section 26(2) of ‘the SEBI Act’ was omitted,

and Section 26B of  ‘the  SEBI  Act’  was  inserted  (into  ‘the  SEBI  Act’),

jurisdiction was  vested  with  Special  Courts,  to  deal  with  all  offences

under ‘the SEBI Act’, “…committed prior to the date of commencement of

the Securities Laws (Amendment) Act, 2014, or on or after the date of

such  commencement,  shall  be  taken  cognizance  of  and  tried  by  the

Special  Court …”.  Based on the above amendment, which came into

force with effect from 18.07.2013, it was asserted, that all courts other

than Special Courts created under ‘the SEBI Act’, were divested of the

power  to  adjudicate  matters  arising  thereunder,  including  pending

matters, which had arisen prior to the amendment. It was submitted,

that  the  intent  of  the  legislature  was  clear  and  emphatic,  namely,

offences committed before or after the coming into operation of ‘the 2014

Amendment Act’  would be triable only by a Special  Court,  and by no

other court.  It was therefore asserted, that with effect from 18.07.2013,

all pending matters would have to be transferred for adjudication to the

Special Courts.  Based on the aforesaid assertions, it was the contention

of the learned Additional Solicitor General, that the Bombay High Court

had  erred  in  recording  its  finding,  that  cases  instituted  before  a

Metropolitan Magistrate (or, a Judicial Magistrate of the first class) would

continue  to  be  adjudicated  by  the  said  courts,  and  that,  ‘the  2002

27

Amendment Act’  would have no effect on such matters.  In the above

view  of  the  matter,  it  was  the  submission  of  the  learned  Additional

Solicitor General, that the determination rendered by the Bombay High

Court,  with  reference  to  ‘forum’  had  been  rendered  infructuous,

consequent  upon ‘the  2014  Amendment  Act’  which  inter  alia omitted

Section 26(2) from ‘the SEBI Act’,  and retrospectively inserted Section

26B into ‘the SEBI Act’.  Before that, according to learned senior counsel,

Section 26(2) of ‘the SEBI Act’ amended by ‘the 2002 Amendment Act’

held the field (with effect from 29.10.2002), and that, adjudication after

29.10.2002 could  only  be made (for  offences arising  under  ‘the  SEBI

Act’), by a Court of Session.

16. Mr.  C.A.  Sundaram,  Senior  Advocate,  represented  most  of  the

private  parties  (some  appellants,  and  some  respondents).  He

acknowledged the proposition canvassed on behalf of the SEBI, on the

basis  of  the  judgments  cited  during  the  course  of  hearing.   It  was

however his contention, that the proposition canvassed on behalf of the

SEBI was the general view, on the subject of change in procedural law,

which included change of  ‘forum’.   It  was his  pointed assertion,  that

there was a basic difference between change in substantive law, change

in procedural  law, and change in procedure constituting  a change in

‘forum’.   He  emphasized,  that  there  was  an  important  and  subtle

difference in the latter two.   It was submitted, that change in ‘forum’

need not  always  be procedural.   Learned counsel  acknowledged,  that

change in substantive law was generally prospective (more so, in a case

28

of criminal jurisprudence).  In this behalf, he placed reliance on Articles

20 and 21 of the Constitution of India.  It was also acknowledged, that

even though change  in  procedural  law  was  generally  retrospective,  it

would  not  be  so,  where  the  legislature  expressly  or  by  necessary

implication, required it to be prospective.   

17. Learned  Senior  Advocate  also  pointed  out,  that  all  matters

pertaining  to  change  in  ‘forum’  should  not  be  clubbed  and  treated

similarly, under the parameters expressed above.  It was submitted, that

cases pertaining to change of ‘forum’, ought to be placed in two different

categories.  Firstly, where the proceedings had already been instituted

and were  pending,  at  the  time of  amendment.   And secondly,  where

proceedings were yet to be instituted, on the date when the amendment

became  operational.   It  was  submitted,  that  where  proceedings  had

already been initiated and trial was in progress, change of ‘forum’ by way

of  legislation,  by  implication  would  be  prospective.   In  terms  of  the

instant classification, it was submitted, that the present controversy falls

in the first category.  Change of ‘forum’, according to learned counsel,

would not be retrospective, for the first category, only where expressly

mandated otherwise.  Besides the legality of the issues, learned counsel

posed a simple question; how can an amendment in legislation, shift a

pending case, midstream, to another court?

18. Learned  senior  counsel  however  conceded,  that  where  the

legislative amendment, while providing for a change of ‘forum’ for trial,

also  provides  for  transfer  of  pending  case  (postulated,  under  the

29

unamended  enactment),  the  amendment  of  ‘forum’  for  trial  would  be

retrospective.  It was submitted, that in the absence of express or implied

intent, all matters falling in the first category would continue to remain

with the original ‘forum’ (provided for, under the unamended provision).

And therefore, such an amendment of ‘forum’, even though admittedly

procedural in nature, would be prospective (and not, retrospective).  It

was submitted, that such express or implied intendment (pertaining to

the first  category),  would become apparent from an amended statute,

where  the  original  court  is  not  deprived  of  exercising  jurisdiction,  or

alternatively, when the original court’s existing jurisdiction is abolished.

In all such cases, according to learned counsel, unless the continuation

of pending matters by the ‘forum’ already seized of the matter is done

away  with,  expressly  or  by  necessary  implication,  all  pending

proceedings would continue to be dealt with by the ‘forum’ where the

matter  was  originally  instituted.   While  expounding  the  aforesaid

position,  learned  senior  counsel,  representing  the  private  parties

acknowledged,  that  the  proposition canvassed on behalf  of  the  SEBI,

with reference to ‘forum’ would be applicable,  to the second category,

namely, to cases wherein proceedings were yet to be instituted.  It was

acknowledged by learned counsel, that in matters where the proceedings

were yet to be instituted, the legally justified assumption would be, that

they would have to be instituted in the newly created ‘forum’, despite the

fact, that the cause had occurred when the ‘forum’ postulated was the

one envisaged under the unamended enactment.   

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19. Insofar as the present controversy is concerned, it was sought to be

asserted by learned senior counsel, that the amendment of ‘forum’ for

trial,  through  ‘the  2002  Amendment  Act’  could  not  be  described  as

purely procedural, as the same was demonstrably substantive.  Firstly,

because the change in ‘forum’ was merely consequential to substantive

changes in the Act (namely, change in Sections 11C and 24 of ‘the SEBI

Act’).  In this behalf it was submitted, that the change of ‘forum’, was not

a stand alone action.  It was pointed out, that the change of ‘forum’ was

dependent  and  accessory  to,  the  amendment  to  the  quantum  of

punishment contemplated for failing or refusing to cooperate with the

investigating authorities, for violating the provisions of the SEBI Act.  It

was  asserted,  that  the  enhanced  quantum  of  punishment,  was  the

reason for  the  change  in  ‘forum’  (from a  lower,  to  a  superior  court).

Secondly,  it  was  submitted,  that  as  change  in  ‘forum’  was  only

consequential,  and as such, by virtue of Sections 208 and 209 of the

Code of Criminal Procedure, the new ‘forum’ – the Special Court, could

not deal with pending matters (as is the situation, in all the cases herein)

since the pre-requisites therefor are not completed by the amendment,

inasmuch as, Sections 11C and 24 of the SEBI Act, would not apply to

occurrences/causes, prior to the date of amendment.  It was submitted,

that  to  understand  the  amendments  introduced  through  ‘the  2002

Amendment  Act’,  especially  Sections  11C,  24  and  26,  the  other

provisions amended simultaneously, had to be read together.  It was also

submitted,  that  the  insertion  of  Section  26B  through  ‘the  2014

31

Amendment  Act’,  would  only  apply  to  offences  committed  after  the

amendment,  or  to  those  offences,  though  committed  prior  to  the

amendment; but cognizance whereof had not been taken, at the time of

the  amendment.   It  was  further  submitted,  that  a  plain  reading  of

Section  26B  would  reveal,  that  the  intent  expressed  therein,  was

conjunctive, inasmuch as the language adopted in Section 26B, could

not be read as disjunctive.

20. In  order  to  substantiate  the  contentions  canvassed  by  learned

senior counsel representing the private parties, as have been delineated

in the foregoing paragraphs, emphatic reliance was placed on Ramesh

Kumar Soni v. State of Madhya Pradesh, (2013) 14 SCC 696.  It was

pointed out from the above judgment, that the factual foundation of the

controversy was depicted in paragraphs 2 to 8, which are reproduced

below:

“2. The  factual  matrix  in  which  the  controversy  arises  may  be summarised as under: Crime No. 129 of 2007 for commission of offences punishable under Sections 408, 420, 467, 468 and 471 IPC  was  registered  against  the  appellant  on  18-5-2007,  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 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  IPC  triable  by  the  Court  of Session  instead  of  a  Magistrate  of  First  Class.  The  amendment received  the  assent  of  the  President  on  14-2-2008  and  was published  in  Madhya  Pradesh  Gazette  (Extraordinary)  on 22-2-2008. 3. 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

32

provisions. In one such case the Sessions Judge, Jabalpur, made a reference to the High Court on the following two distinct questions of law: 3.1. (i)  Whether  the  recent  amendment  dated  22-2-2008  in Schedule  I  of  the  Criminal  Procedure  Code  is  to  be  applied retrospectively? 3.2. (ii)  Consequently,  whether  the  cases  pending  before  the Magistrate,  First  Class,  in  which  evidence  partly  or  wholly  has been recorded, and now have been committed to this Court are to be tried de novo by the Court of Session 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 Amendment  of  First  Schedule  of  Criminal  Procedure  Code  by Criminal Procedure Code (M.P. Amendment) Act, 2007, In re (2008) 3  MPLJ  311,  answered  the  reference  and  held  that  all  cases pending before the Court of the Judicial Magistrate, First Class as on  22-2-2008 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 Session. 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 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 Session 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:

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

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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 (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.— * * * 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 Sections 317, 318, 326, 363, 363-A, 365, 377, 392, 393, 394, 409, 435, 466, 467, 468, 471, 472, 473, 474, 475, 476, 477 and 477-A,  for the words ‘Magistrate of the First Class’ wherever they occur, the words ‘Court of Session’ shall be substituted.”

7. The  First  Schedule  to  the  Criminal  Procedure  Code,  1973 classifies offences under 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: 7.1. The Madhya Pradesh Amendment extracted above has shifted the forum of trial from the Court of a Magistrate of the First Class to  the  Court  of  Session.  The  question  is  whether  the  said amendment  is  prospective  and  will  be  applicable  only  to  the 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? 7.2. 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 up to 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. 7.3. 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  filed  before  him  which  constitute  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

34

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 v. Bhadai Shah AIR 1964 SC 1541, clearly explains the legal position in this regard. 7.4. To the same effect is the decision of this Court in Devarapalli Lakshminarayana Reddy v.  V. Narayana Reddy (1976) 3 SCC 252 (SCC p. 257, para 14), 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  clauses (  a  )  to  (  c  )  of  Section 190(1) CrPC. We may also refer to the decision of this Court in Kamlapati  Trivedi   v.    State of  W.B.  (1980) 2 SCC 91,   where this Court  interpreted  the  provisions  of  Section  190  CrPC and reiterated the legal position set out in the earlier decisions. 8. Applying  the  test  judicially  recognised  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 Session. 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  the  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 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 Session to which the case stood committed.”

21. Learned senior counsel emphasized, that it was not necessary for

him to refer to different decisions of this Court on the issue, since all the

relevant judgments had already been dealt with in the Ramesh Kumar

Soni case (supra).  It was submitted, that it would suffice if this Court,

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with reference to the present case, adverts to the legal position expressed

in the above judgment (rendered on an analysis of earlier judgments).

Learned senior  counsel,  pointedly  drew our attention to  the following

observations recorded in the above judgment:

“10. In  New India Insurance Co. Ltd.   v.    Shanti Misra (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 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: (SCC pp. 844-45, paras 5-6)

“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 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)

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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 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.”

11. In Hitendra Vishnu Thakur   v.   State of Maharashtra (1994) 4 SCC 602  ,  one  of  the  questions  which  this  Court  was  examining  was whether clause (  bb  ) of Section 20(4) of the Terrorist and Disruptive Activities  (Prevention)  Act,  1987 introduced by  an  Amendment  Act governing Section 167(2) CrPC 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: (SCC p. 633, para 26)

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“(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.”

xxx xxx xxx 13. In Shiv Bhagwan Moti Ram Saraoji case (1952) 54 Bom LR 330, the Bombay High Court has held procedural laws to be in force unless the legislatures expressly provide to the contrary. The Court observed: (Bom LR p. 352)

“… 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.”

14. 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 the Magistrate, First Class to the Court of Session. Apart from the fact that as on the date the amendment came into force no case had been instituted against the appellant nor had the Magistrate 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 (  sic   not) interfering with the order passed by the trial court. 15. The questions formulated by the Full  Bench of the High Court were answered in the negative holding that all cases pending in the

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Court of the Judicial Magistrate, First Class as on 22-2-2008 when the amendment to the First Schedule to CrPC became operative, will remain unaffected by the said amendment and such matters as were, in the meanwhile committed to the Court of Session, 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 AIR 1967 SC 1419, CIT v.  R. Sharadamma (1996) 8 SCC 388 and R. Kapilnath 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 Session 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. 16. In    Manujendra Dutt case   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 case was subsequently overruled by a seven-Judge Bench of this Court in V. Dhanapal Chettiar v. Yesodai Ammal (1979) 4 SCC 214 though on a different legal point. 17. So also the decision of this Court in R. Sharadamma case (1996) 8 SCC 388 relied upon by the Full Bench was distinguishable on facts. The question there  related to  a liability  incurred under  a  repealed enactment.  The  proceedings  in  the  forum  in  which  the  case  was instituted  had concluded and the  matter  had been referred to  the inspecting  Assistant  Commissioner  before  the  dispute  regarding jurisdiction arose. 18. The decision of this Court in   R. Kapilnath case (2003) 1 SCC 444  , 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 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. 19. 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

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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 Special Judge could not be termed illegal just because there was an amendment  to  the  procedural  law  on  18-12-1964.  The  following passage is, in this regard, apposite: (AIR p. 1639, paras 5-6)

“5. … 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  A Debtor, In re, ex p Debtor (1936) 1 Ch 237 (CA) and  Attorney General v.  Vernazza  1960  AC  965).  The  same  principle  is embodied in Section 6 of the General Clauses Act which is to the following effect:

* * * 6. 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 31-3-1962 by the Special Judge, Santhal  Parganas,  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 18-12-1964. 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 18-12-1964 by the amending Act. We accordingly reject the argument of the appellant on this aspect of the case.”

20. 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: (AIR p. 917, para 4)

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“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; Colonial Sugar Refining Co. Ltd. v.  Irving, 1905 AC 369, AC p. 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.”

21. The upshot of the above discussion is that the view taken by the Full  Bench  holding  the  amended  provision  to  be  inapplicable  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 the Sessions Court to the Court of the Magistrate, First Class  under  the  orders  of  the  Full  Bench  may  also  have  been concluded or may be at an 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.”

22. It was also the contention of learned counsel for the private parties,

that  ‘the   2002  Amendment  Act’  does  not  indicate  the  desire  of  the

legislature in divesting proceedings which were earlier pending before a

Metropolitan Magistrate (or, a Judicial Magistrate, as the case may be).

In order to substantiate the instant contention, learned counsel, in the

first instance, placed reliance on the statement of objects and reasons of

the Securities and Exchange Board of India (Amendment) Act, 2002.  The

same is extracted hereunder:

“The Securities and Exchange Board of India (SEBI) Act, 1992 was enacted to provide for the establishment of a Board to protect the interests of investors in securities and to promote the development

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of, and to regulate, the securities market and for matters connected therewith or incidental thereto. 2.  Recently  many  shortcomings  in  the  legal  provisions  of  the Securities  and  Exchange  Board  of  India  Act,  1992  have  been noticed,  particularly  with  respect  to  inspection,  investigation  and enforcement. Currently, the SEBI can call for information, undertake inspections,  conduct  enquiries  and  audits  of  stock  exchanges, mutual funds, intermediaries, issue directions, initiate prosecution, order suspension or cancellation of registration.  Penalties can also be imposed in case of violation of the provisions of the Act or the rules or the regulations. However, the SEBI has no jurisdiction to prohibit issue of securities or preventing siphoning of funds or asset stripping by any company. While the SEBI can call for information from intermediaries,  it  cannot call  for information from any bank and  other  authority  or  board  or  corporation  established  or constituted by or under any Central,  State or Provincial  Act.  The SEBI  cannot  retain  books  of  account,  documents,  etc.,  in  its custody. Under the existing provisions contained in the Securities and  Exchange  Board  of  India  Act,  1992,  the  SEBI  cannot  issue commissions  for  the  examination  of  witnesses  or  documents. Further, the SEBI has pointed out that existing penalties are too low and do not serve as effective deterrents.  At present, under section 209A of the Companies Act, 1956, the SEBI can conduct inspection of listed companies only for violations of the provisions contained in sections referred to in section 55A of that Act but it cannot conduct inspection of any listed public company for violation of the SEBI Act or rules or regulations made thereunder. 3.  In addition, growing importance of the securities markets in the economy  has  placed  new  demands  upon  the  SEBI  in  terms  of organisation  structure  and  institutional  capacity.  A  need  was therefore  felt  to  remove  these  shortcomings  by  strengthening  the mechanisms available to the SEBI for investigation and enforcement so  that  it  is  better  equipped  to  investigate  and  enforce  against market malpractices. 4. In view of the above, the Securities and Exchange Board of India (Amendment) Ordinance, 2002 (Ord. 6 of 2002) was promulgated on the  29th  October,  2002  to  amend  the  Securities  and  Exchange Board of India Act, 1992. 5. It is now proposed to replace the Ordinance by a Bill, with, inter alia, the following features— (a)  increasing  the  number  of  members  of  the  SEBI  from  six (including Chairman) to nine (including Chairman); (b) conferring power upon the Board for,-  (i)  calling  for  information  and  record  from  any  bank  or  other authority or Board or corporation established or constituted by or under  any  Central,  State  or  Provincial  Act  in  respect  of  any

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transaction in securities which are under investigation or inquiry by the Board; (ii)  passing an order for reasons to be recorded in writing,  in the interest  of  investors  or  securities  market,  either  pending investigation or inquiry  or on completion of  such investigation or inquiry for taking any of the following measures, namely, to-- (A)  suspend  the  trading  of  any  security  in  a  recognised  stock exchange; (B)  restrain  persons  from  accessing  the  securities  market  and prohibit any person associated with securities market to buy, sell or deal in securities; (C)  suspend  any  office-bearer  of  any  stock  exchange  or self-regulatory organisation from holding such position; (D) impound and retain the proceeds or securities in respect of any transaction which is under investigation; (E)  attach,  after  passing  of  an  order  on  an  application  made for approval  by  the  Judicial  Magistrate  of  the  first  class  having jurisdiction, for a period not exceeding one month, one or more bank account or accounts of any intermediary or any person associated with the securities market in any manner involved in violation of any of the provisions of this Act, or the rules or the regulations made thereunder; (F)  direct  any  intermediary  or  any  person  associated  with  the securities market in any manner not to dispose of or alienate an asset forming part of any transaction which is under investigation; (iii) regulating or prohibiting for the protection of investors, issue of prospectus,  offer  document  or  advertisement  soliciting  money  for issue of securities; (iv) directing any person to investigate the affairs of intermediary or person associated with the securities market and to search and seize books, registers, other documents and records considered necessary for the purposes of the investigation, with the prior approval of a Magistrate of the first class; (v)  passing an order  requiring  any person who has violated or is likely  to  violate,  any  provision  of  the  SEBI  Act  or  any  rules  or regulations made thereunder to cease and desist for committing and causing such violation; (c) prohibiting manipulative and deceptive devices, insider trading, fraudulent and manipulative trade practices, market manipulation and  substantial  acquisition  of  securities  and  control; (d) crediting sums realised by way of penalties to the Consolidated Fund of India; (e)  amending the composition of  the Securities Appellate Tribunal from one person to three persons; (f) changing the qualifications for appointment as Presiding Officer and members of the Securities Appellate Tribunal;

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(g)  composition  of  certain  offences  by  the  Securities  Appellate Tribunal; (h)  conferring  power  upon  the  Central  Government  to  grant immunity; (i)  appeal to the Supreme Court from the orders of the Securities Appellate Tribunal; (j) enhancing the penalties specified in the SEBI Act. 6. The Bill seeks to achieve the above objects.”

Reading extensively from the objects and reasons extracted above, it was

submitted,  that  the  aforestated  amendment  was  primarily  aimed  at

remedying  the  shortcomings  in  ‘the  SEBI  Act’,  particularly,  with

reference  to  inspection,  investigation  and  enforcement.   It  was  also

pointed  out,  that  the  said  amendment  was  aimed  at  enhancing  the

penalties  postulated  for  violation  of  the  provisions  of  ‘the  SEBI  Act’,

inasmuch  as,  the  existing  penalties  did  not  serve  as  an  effective

deterrent.   It  was submitted,  that  ‘the 2002 Amendment Act’  was an

in-depth  restructuring  of  the  SEBI  (by  increasing  the  number  of  its

members),  and  by  conferring  further  powers  on  the  Securities  &

Exchange Board of India.  It was submitted, that the change of ‘forum’

emerging out of the provisions of ‘the 2002 Amendment Act’,  was not

even referred to in the statement of objects and reasons.  And as such, it

was  not  proper  for  this  Court  to  draw any  inference,  merely  on  the

premise,  that  a  procedural  amendment  had  been  contemplated  by

changing the existing ‘forum (to that of the Court of Session).  It was

submitted, that an overall analysis of ‘the 2002 Amendment Act’ would

demonstrate,  that the erstwhile  penalties under the original  SEBI Act

(under  Section  24),  were  of  a  trivial  nature.   Inasmuch  as,  the

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contravention  of  the  provisions  of  ‘the  SEBI  Act’  or  any  rules  and

regulations made thereunder, was punishable with imprisonment “… for

a  term  which  may  extend  to  one  year,  or  with  fine,  or  with  both”.

Referring  to  sub-section  (2)  of  Section  24  it  was  submitted,  that  for

failing to comply with the directions or orders of adjudicating officers,

under ‘the SEBI Act’,  the punishment provided for, was of “…not less

than one month, but which may extend to three years or with fine which

shall not be less than two thousand rupees but which may extend to ten

thousand rupees or with both.”.  In consonance with the above level of

punishment,  it  was  not  only  appropriate,  but  also  justified,  that  the

proceedings  should  be  conducted  by  the  Court  of  a  Metropolitan

Magistrate  (or,  a  Judicial  Magistrate,  as  the  case  may  be).   It  was

submitted, that all the matters arising for adjudication before this Court,

in the present set of cases, can only be punished with imprisonment and

fine,  as  has  been  noticed  herein  above.   In  addition  to  the  factual

position narrated hereinabove, it was highlighted, that the punishment

contemplated under Section 24 of  ‘the SEBI Act’,  was altered by ‘the

2002 Amendment Act’ whereby, consequent upon the contravention of

the  provisions  of  ‘the  SEBI  Act’  or  any  rules  or  regulations  made

thereunder,  the  offender  was  “…punishable  with  imprisonment  for  a

term which may extend to ten years, or with fine, which may extend to

twenty-five  crore  rupees  or  with  both.”    Additionally  referring  the

amendment  of  Section  24(2)  by  ‘the  2002  Amendment  Act’,  it  was

submitted, that for failing to comply with any of the directions or orders

45

of  an  adjudicating  officer,  the  punishment  contemplated  was  “…

imprisonment for a term which shall not be less than one month but

which  may  extend  to  ten  years  or  with  fine,  which  may  extend  to

twenty-five crore rupees or with both.”  It was submitted, that the private

parties  herein,  cannot  be  required  to  suffer  the  punishment

contemplated under Section 24, consequent upon its amendment by ‘the

2002  Amendment  Act’.   It  was  submitted,  that  on  account  of  the

enhanced punishment under Section 26(2) of ‘the 2002 Amendment Act’

postulated, that no court inferior to that of a Court of Session, would try

any offence triable  under ‘the SEBI Act’.   It  was submitted,  that  any

change of ‘forum’, whilst the penal consequences remained unchanged,

was  absurd.   According  to  learned  counsel  representing  the  private

parties, the change of ‘forum’ (through ‘the 2002 Amendment Act’) was

aimed at bringing the ‘forum’ of  adjudication,  at  par with the ‘forum’

contemplated  for  similar  penal  consequences,  under  the  Code  of

Criminal Procedure.  It was submitted, that it could never have been the

intention of the legislature through ‘the 2002 Amendment Act’, to alter

the ‘forum’ for offences with trivial punishments (as is the case, with the

private parties herein).

23. In order to substantiate the contention advanced in the foregoing

paragraph,  learned  counsel  has  placed  reliance  on  Commissioner  of

Income Tax, Orissa v.  Dhadi Sahu, 1994 Supp (1) SCC 257, and drew

our attention to the following observations recorded therein:

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“5. Pending  reference  of  the  case  before  the  Inspecting  Assistant Commissioner,  Section  274(2)  of  the  Act  was  amended  with  effect from April  1,  1971  by  the  Taxation  Laws  (Amendment)  Act,  1970 (hereinafter referred to as ‘the Amending Act’) so as to read as follows: “Notwithstanding anything contained in clause (iii) of sub-section (1) of Section 271 if in a case falling under clause (c) of that sub-section, the amount of income (as determined by the Income Tax Officer on assessment) in respect of which the particulars have been concealed or  inaccurate  particulars  have  been  furnished  exceeds  a  sum  of twenty-five thousand rupees the Income Tax Officer  shall  refer  the case  to  the  Inspecting  Assistant  Commissioner,  who  shall,  for  the purpose,  have  all  the  powers conferred under  this  chapter  for  the imposition of penalty.”

xxx xxx xxx 18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.

xxx xxx xxx 20. It  will  be  noticed  that  the  amending  Act  did  not  make  any provision  that  the  references  validly  pending  before  the  Inspecting Assistant Commissioner shall be returned without passing any final order if the amount of income in respect of which the particulars have been concealed did not exceed Rs 25,000. This supports the inference that  in  pending  references  the  Inspecting  Assistant  Commissioner continued  to  have  jurisdiction  to  impose  penalty.  The  previous operation  of  Section  274(2)  as  it  stood  before  April  1,  1971,  and anything done thereunder continued to have effect under Section 6(b) of the General Clauses Act, 1897, enabling the Inspecting Assistant Commissioner to pass orders imposing penalty in pending references. In our opinion, therefore, what is material to be seen is as to when the references were initiated.  If  the reference was made before April  1, 1971, it would be governed by Section 274(2) as it stood before that date and Inspecting Assistant Commissioner would have jurisdiction to pass the order of penalty. 21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to  be  a  question  of  procedure  only.  The  forum  of  appeal  or proceedings  is  a  vested  right  as  opposed  to  pure  procedure  to  be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and  unless  the  legislature  has  by  express  words  or  by  necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums.”

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Reliance was also placed on R. Kapilnath v. Krishna, (2003) 1 SCC 444,

wherein  the  Court’s  pointed  attention  was  drawn  to  the  following

observations:

“4. The above submission of the learned counsel has been stated only to be rejected. It is pertinent to note that the proceedings in the Court of Munsiff had already stood concluded by the time the amendment came into force. It is not disputed that Amendment Act 32 of 1994 has not been given a retrospective operation and there is nothing in the Act to infer retrospectivity by necessary implication. The Act has been specifically brought into force w.e.f. the 18th day of May, 1994. The learned counsel  for  the appellant  cited a number  of  decisions laying down the law as to how an amendment in legislation brought into force during the pendency of legal proceedings has to be given effect to. Without stating the decisions so cited, suffice it to observe that  all  those  decisions  deal  with  substantive  rights  having  been created or abolished during the pendency of  legal  proceedings and depending on the legislative intent and the language employed by the legislature in the relevant enactment, this Court has determined the impact of the legislation on pending proceedings and the power of the court  to  take  note  of  change in law and suitably  mould  the  relief consistently with the legislative changes. So far as the present case is concerned, the only submission made by the learned counsel for the appellant is that the effect of the amendment is to deprive the Court of Munsiff  of  its  jurisdiction to  hear  and  decide  the  proceedings  for eviction over such premises as the suit premises are. In other words, it  is  a  change  in  forum  brought  during  the  pendency  of  the proceedings. The correct approach to be adopted in such cases is that a new law bringing about a change in forum does not affect pending actions, unless a provision is made in it for changeover of proceedings or  there  is  some  other  clear  indication  that  pending  actions  are affected.  (See  Principles  of  Statutory  Interpretation,  Justice  G.P. Singh, 8th Edn., 2001, p. 442.) We have already indicated that the Act does not bring about a change in forum so far as the pending actions are concerned. Moreover, by the time the amendment came into force, the proceedings before the Munsiff had already stood concluded and the case was pending at the stage of revision before the Additional District Judge. Further, we find that an objection laying challenge to the forum’s competence was not raised before the learned Additional District Judge nor was the objection taken before the High Court in the civil  revision preferred by the appellant.  It  was not taken as a ground in the special leave petition. It has been taken only by way of a separate  petition  filed  subsequently  and  seeking  leave  to  urge additional grounds. Such an objection cannot be allowed to be urged

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so belatedly. However, we have already held the argument based on the 1994 Amendment as of no merit.”

Based on the aforestated submissions, it was contended, that ‘the 2002

Amendment Act’ did not expressly or impliedly choose to alter the forum

of  pending  matters,  wherein  cognizance  had  already  been  taken.

Referring to Section 26B, introduced into ‘the SEBI Act’  by ‘the 2002

Amendment  Act’,  learned  counsel  emphasized  on  “…  shall  be  taken

cognizance of and tried …”.  Relying on the aforestated words used in

Section 26B, it was asserted, that the intent of the legislature was that

the change of ‘forum’ would apply only to matters, wherein cognizance

had not been taken.  It was submitted, that there was no question of

taking fresh cognizance, where cognizance had already been taken.  It

was accordingly sought to be inferred, that the clear intent indicated by

the legislature was, that the change of ‘forum’ would be applicable, only

in matters wherein cognizance had not been taken.

24. Learned  senior  counsel,  then  placed  reliance  on  Videocon

International Limited v. Securities and Exchange Board of India, (2015) 4

SCC 33.  It was submitted, that the instant judgment of this Court had

taken into consideration a number of previous judgments rendered by it,

for  recording  its  final  conclusions.   As  such,  it  was  submitted,  that

reliance  on  the  instant  judgment,  would  obviate  the  necessity  of

reference to other judgments of  this Court (on the question in hand).

Learned counsel placed reliance on the observations and conclusions,

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recorded in the Videocon International Limited case (supra), by placing

reliance on the following paragraphs:

“7. The High Court by the impugned order arrived at the conclusion, that such of the appeals as had been filed before the coming into force of  the  amended  Section  15-Z,  would  not  be  affected  by  the amendment,  and the  High Court  had the  jurisdiction to  hear  and dispose of the same. The High Court also concluded, that such of the appeals as had been filed after the coming into force of the amended Section 15-Z, would not be maintainable.

xxx xxx xxx 29. According to the learned counsel, a perusal of the above judgment in    Dhadi  Sahu  case   revealed,  that  change  of  forum  could  be substantive or procedural. It would be procedural when the remedy has  yet  to  be  availed  of.  But  where  the  remedy had already been availed of (under an existing statutory provision), the right crystallised into a vested substantive right. In the latter situation, according to the learned counsel, unless the amending provision, by express words or by  necessary  implication  mandates,  the  transfer  of  pending proceedings to the forum introduced by the amendment, the forum postulated  by  the  unamended  provision,  has  the  jurisdiction  to adjudicate upon pending matters (filed before the amendment).

xxx xxx xxx 30. According to the learned counsel, his submission also flows from the mandate contained in Section 6 of the General Clauses Act, 1897. For this,  the learned counsel  placed reliance on  Ambalal  Sarabhai Enterprises  Ltd. v.  Amrit  Lal  and  Co  (2001)  8  SCC  397.   In  the above-cited judgment, the respondent landlord had filed an eviction petition on 13-9-1985 against the appellant, under Section 14(1)(b) of the Delhi  Rent Control  Act.  When the above petition was pending, Section 3(  c  ) was brought in through an amendment with effect from 1-12-1988.  By  the  above  amendment,  the  jurisdiction  of  the  Rent Controller,  with respect to tenancies which fetched a monthly rent exceeding  Rs  3500,  was  excluded.  Consequent  upon  the  aforesaid amendment,  the  appellant  tenant  contended,  that  the  civil  court alone,  had  the  jurisdiction  to  entertain  the  claim  raised  by  the landlord, and that, the eviction petition filed under the provisions of the Delhi Rent Control Act, was no longer maintainable. 31. While  adjudicating  the  aforesaid  dispute,  this  Court  held  as under: (Ambalal case, SCC pp. 409-10 & 415, paras 24-27 & 34-36)

“24.  We may quote  here  Section 6  of  the  General  Clauses  Act, 1897: ‘6. Effect  of  repeal.—Where  this  Act,  or  any  Central  Act  or regulation made after the commencement of this Act, repeals any

50

enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not— (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c)  affect  any  right,  privilege,  obligation  or  liability  acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect   any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation,  legal  proceeding or  remedy may be instituted, continued or enforced, and any such penalty, forfeiture or  punishment  may  be  imposed  as  if  the  repealing  Act  or Regulation had not been passed.’ 25. The opening words of Section 6 specify the field over which it is operative. It is operative over all the enactments under the General Clauses  Act,  Central  Act  or  regulations  made  after  the commencement of the General Clauses Act. It also clarifies in case of repeal of any provision under the aforesaid Act or regulation, unless  a  different  intention  appears  from such repeal,  it  would have no affect over the matters covered in its clauses viz. (  a  ) to (  e  ). It clearly specifies that the repeal shall not revive anything not in force  or  in  existence  or  affect  the  previous  operation  of  any enactment so repealed or anything duly done or suffered or affect any  right,  privilege,  obligation  or  liability  acquired,  accrued  or incurred under the repealed statute, affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the  repealed  statute  and also  does  not  affect  any  investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. Thus the central theme which spells out is that any investigation or legal proceeding pending may be continued and enforced as if the repealing Act or regulation had not come into force. 26. As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words, such repeal does not affect the pending cases which would continue to be concluded as if  the  enactment  has  not  been  repealed.  In  fact  when  a  lis commences, all rights and obligations of the parties get crystallised on that date. The mandate of Section 6 of the General Clauses Act is  simply  to  leave  the  pending  proceedings  unaffected  which commenced  under  the  unrepealed  provisions  unless  contrary intention is expressed. We find clause (c) of Section 6, refers the

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words ‘any right, privilege, obligation … acquired or accrued’ under the repealed statute would not be affected by the repealing statute. We may hasten to clarify here, mere existence of a right not being ‘acquired’  or  ‘accrued’,  on the  date  of  the  repeal  would  not  get protection of Section 6 of the General Clauses Act. 27. At  the most,  such a provision can be said to be granting a privilege to the landlord to seek intervention of the Controller for eviction of the tenant under the statute. Such a privilege is not a benefit  vested  in  general  but  is  a  benefit  granted  and  may  be enforced by approaching the Controller in the manner prescribed under the statute. On filing the petition of eviction of the tenant the privilege accrued with the landlord is not effected by repeal of the Act in view of  Section 6(c)  and the pending proceeding is  saved under Section 6(e) of the Act.

*** 34. Thus we find Section 6 of the General Clauses Act covers a wider field     and saves a wide range or proceedings referred to in its various clauses. We find two sets of cases, one where Section 6 of the General Clauses Act is applicable and the other where it is not applicable. 35.  In cases where Section 6 is  not  applicable,  the courts  have to scrutinise and find, whether a person under a repealed statute had any vested right. In case he had, then pending proceedings would be saved  .  However,  in  cases  where  Section  6  is  applicable,  it  is  not merely a vested right but all those covered under various clauses from (  a  ) to (  e  ) of Section 6. We have already clarified that right and privilege under it is limited to those which is ‘acquired’ and ‘accrued’. In such cases pending proceedings are to be continued as if the statute has not been repealed. 36. In view of the aforesaid legal principle emerging, we come to the conclusion that since proceeding for the eviction of the tenant was pending when the repealing Act came into operation, Section 6 of the General Clauses Act would be applicable in the present case, as it is landlord’s accrued right in terms of Section 6. Clause (c) of Section 6 refers to ‘any right’ which may not be limited as a vested right but is limited  to  be  an  accrued  right.  The  words  ‘any  right  accrued’  in Section 6(c)  are  wide  enough to  include  landlord’s  right  to  evict  a tenant in case proceeding was pending when repeal came in. Thus a pending proceeding before the Rent Controller  for  the eviction of  a tenant on the date when the repealing Act came into force would not be  affected  by  the  repealing  statute  and  will  be  continued  and concluded in accordance with the law as existed under the repealed statute.” Based  on  the  above  determination,  it  was  the  contention  of  the learned counsel, that in addition to the existence of a vested right, Sections 6(  c  ) and (  e  ) make it abundantly clear, that a pending legal proceeding or remedy, before the amendment altered the forum, would continue to be available for the adjudication of the matter, unless the

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amending  provision  by  express  words  or  by  necessary  implication expressed otherwise. 37. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. We shall  now  venture  to  determine  the  controversy  which  has  been debated hereinabove.  So as not to be required to repeatedly express one  foundational  fact,  it  would  be  pertinent  to  mention,  that  our determination, insofar as the present controversy is concerned is with reference  to  situations  wherein  the  amending provision by express words or by necessary implication, does not mandate the amendment to  be  either  prospective  or  retrospective.  In  the  present  case,  the instant  situation  emerges  from  Section  32  of  the  Securities  and Exchange Board of India (Amendment) Act, 2002, which is silent on the above subject.

xxx xxx xxx 44. It was also the contention of the learned counsel for the appellant, that in the absence of a saving clause, the pending proceedings (and the jurisdiction of the High Court), cannot be deemed to have been saved. It is not possible for us to accept the instant contention. In the judgment  rendered  by  this  Court  in    Ambalal  Sarabhai  Enterprises Ltd. case  , it was held, that the general principle was, that a law which brought  about  a  change  in  the  forum,  would  not  affect  pending actions, unless the intention to the contrary was clearly shown. Since the  amending  provision  herein  does  not  so  envisage,  it  has  to  be concluded, that the pending appeals (before the amendment of Section 15-Z) would not be affected in any manner. Accordingly, for the same reasons  as  have  been  expressed  in  the  above  judgment  (relevant extracts whereof have been reproduced above), we are of the view, that the instant contention advanced at the hands of the learned counsel for  the  appellant  is  wholly  misconceived.  Furthermore,  the  instant contention is wholly unacceptable in view of the mandate contained in Sections  6(  c  )  and  (  e  )  of  the  General  Clauses  Act,  1897.  While interpreting  the  aforesaid  provisions  this  Court  has  held,  that  the amendment of a statute, which is not retrospective in operation, does not affect pending proceedings, except where the amending provision expressly  or  by  necessary  intendment  provides  otherwise.  Pending proceedings are to continue as if the unamended provision is still in force. This Court has clearly concluded, that when a lis commences, all rights and obligations of the parties get crystallised on that date, and  the  mandate  of  Section  6  of  the  General  Clauses  Act,  simply ensures,  that  pending proceedings under the unamended provision remain unaffected. Herein also, therefore, our conclusion is the same as has already been rendered by us, in the foregoing paragraphs. 45. Having  concluded  in  the  manner  expressed  in  the  foregoing paragraphs, it is not necessary for us to examine the main contention, advanced  at  the  hands  of  the  learned  counsel  for  the  appellant, namely,  that  the  amendment  to  Section  15-Z  of  the  SEBI  Act,

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contemplates a mere change of forum of the second appellate remedy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the above subject as well. In dealing with the submission advanced at the hands of the learned counsel for the appellant,  on the subject of  forum, we will fictionally  presume,  that  the  amendment  to  Section  15-Z  by  the Securities and Exchange Board of India (Amendment) Act, 2002 had no  effect  on  the  second  appellate  remedy  made  available  to  the parties,  and  further  that,  the  above  amendment  merely  alters  the forum  of  the  second  appeal,  from  the  High  Court  (under  the unamended provision), to the Supreme Court (consequent upon the amendment). On the above assumption, the learned counsel for the appellant had placed reliance on the decisions rendered by this Court in    Maria  Cristina  De  Souza  Sodder  ,    Hitendra  Vishnu Thakur   and Thirumalai Chemicals Ltd.    cases to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum,  would  apply  retrospectively.  Whilst  the  correctness  of  the aforesaid contention cannot be doubted, it is essential to clarify, that the same is  not an absolute rule.  In this behalf,  reference may be made to the judgments relied upon by the learned counsel for the respondent, and more importantly to the judgment rendered in Dhadi Sahu case,  wherein  it  has  been  explained,  that  an amendment  of forum  would  not  necessarily  be  an  issue  of  procedure.  It  was concluded  in  the  above  judgment,  that  where  the  question  is  of change of forum, it ceased to be a question of procedure, and becomes substantive  and  vested,  if  proceedings  stand  initiated  before  the earlier prescribed forum (prior to the amendment having taken effect). This  Court  clearly  declared  in  the  above  judgment,  that  if  the appellate remedy had been availed of (before the forum expressed in the  unamended provision)  before  the  amendment,  the  same would constitute a vested right. However, if the same has not been availed of, and the forum of the appellate remedy is altered by an amendment, the change in the forum, would constitute a procedural amendment, as contended by the learned counsel for the appellant. Consequently even in  the  facts  and circumstances  of  the  present  case,  all  such appeals as had been filed by the Board, prior to 29-10-2002, would have to be accepted as vested, and must be adjudicated accordingly.”

25. Learned counsel for the private parties, emphasized the manner in

which legislative intent, in such matters, is usually expressed.  It was

submitted, that it was usually provided for the amending provision itself.

This, according to learned counsel, could be done by expressly providing,

that the pending matters would stand transferred to the new ‘forum’.

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The same objective could be achieved, by denuding the existing ‘forum’

from jurisdiction.  In order to demonstrate the aforesaid, learned counsel

placed reliance on Ambalal Sarabhai Enterprises Ltd. v.  Amrit Lal & Co.,

(2001) 8 SCC 397, wherein this Court held as under:  

“17. The aforesaid decision holds that tenants have no vested right under the Rent Act.  In effect, the law is well settled. Prior to the enactment of the Rent Act the relationship between the landlord and the tenant was governed by the general law, maybe the Transfer of Property Act or any other law in relation to the property.  The Rent Act merely provides a protection to a tenant as against the unbridled power of the landlord under the general law of the land.  The Rent Act gives protection to the tenant from being ejected except on the grounds referred to under the Rent Act. In other words, it protects the  tenant  from ejectment,  it  protects  a  tenant  from the  drastic enhancement of the rent by the landlord which may otherwise the landlord could do under the general law. Thus the right of a tenant under the Rent Act at the best could be said to be a protective right, which cannot be construed to be a vested right. In effect, in view of this  special  enactment  of  the  Rent  Act,  the  right  and  remedies available to a landlord under the general law remains suspended. In other  words  the  landlord’s  vested  right  under  the  general  law continues so long it is not abridged by such protective legislation, but the moment when this protection is withdrawn the landlord’s normal vested right reappears which could be enforced by him.

xxx xxx xxx 34. Thus we find that Section 6 of the General Clauses Act covers a wider field and saves wide range of proceedings referred to in its various clauses. We find two sets of cases, one where  Section 6 of the General Clauses Act is applicable and the other where it is not applicable. 35. In cases where Section 6 is not applicable, the courts have to scrutinise and find, whether a person under a repealed statute had any vested right. In case he had, then pending proceedings would be saved.  However,  in  cases where  Section 6 is  applicable,  it  is  not merely a vested right but all  those covered under various clauses from (a)  to  (e)  of  Section  6.  We  have  already  clarified  right  and privilege  under  it  is  limited  to  that  which  is  “acquired”  and “accrued”. In such cases pending proceedings is to be continued as if the statute has not been repealed. 36. In view of the aforesaid legal principle emerging, we come to the conclusion that since proceeding for the eviction of the tenant was pending when the repealing Act came into operation, Section 6 of the General Clauses Act would be applicable in the present case,

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change  of  procedure  the  references  became  incompetent,  the Inspecting Assistant  Commissioner  had no jurisdiction to complete the proceedings, because he had no longer jurisdiction to deal with the matter of this type. We are of the view that the Tribunal came to the  right  conclusion  on  the  facts  of  the  case.  Our  answer  to  the question referred to us, therefore, is: On the facts and in the circumstances of  the case,  and on a true interpretation  of  Section  274,  as  amended  by  the  Taxation  Laws (Amendment) Act of 1970, the Inspecting Assistant Commissioner to whom the case had been referred prior to 1971 had no jurisdiction to impose penalty.”

xxx xxx xxx 18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.”

Reference was also made to, Commissioner of Income Tax, Bangalore v.

R. Shradamma, (1996) 8 SCC 388, and finally, learned counsel placed

reliance on R. Kapilnath v. Krishna, (2003) 1 SCC 444, wherefrom the

Court’s attention was drawn to paragraph 4, which is extracted below:

“4. The above submission of the learned counsel has been stated only to be rejected. It is pertinent to note that the proceedings in the Court of Munsiff had already stood concluded by the time the amendment came into force. It is not disputed that Amendment Act 32 of 1994 has not been given a retrospective operation and there is nothing in the Act to infer retrospectivity by necessary implication. The Act has been specifically brought into force w.e.f. the 18th day of May, 1994. The learned counsel  for  the appellant  cited a number  of  decisions laying down the law as to how an amendment in legislation brought into force during the pendency of legal proceedings has to be given effect to. Without stating the decisions so cited, suffice it to observe that  all  those  decisions  deal  with  substantive  rights  having  been created or abolished during the pendency of  legal  proceedings and depending on the legislative intent and the language employed by the legislature in the relevant enactment, this Court has determined the impact of the legislation on pending proceedings and the power of the court  to  take  note  of  change in law and suitably  mould  the  relief consistently with the legislative changes. So far as the present case is concerned, the only submission made by the learned counsel for the

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appellant is that the effect of the amendment is to deprive the Court of Munsiff  of  its  jurisdiction  to  hear  and  decide  the  proceedings  for eviction over such premises as the suit premises are. In other words, it  is  a  change  in  forum  brought  during  the  pendency  of  the proceedings. The correct approach to be adopted in such cases is that a new law bringing about a change in forum does not affect pending actions, unless a provision is made in it for changeover of proceedings or  there  is  some  other  clear  indication  that  pending  actions  are affected.  (See    Principles  of  Statutory  Interpretation  ,  Justice  G.P. Singh, 8th Edn., 2001, p. 442.) We have already indicated that the Act does not bring about a change in forum so far as the pending actions are concerned. Moreover, by the time the amendment came into force, the proceedings before the Munsiff had already stood concluded and the case was pending at the stage of revision before the Additional District Judge. Further, we find that an objection laying challenge to the forum’s competence was not raised before the learned Additional District Judge nor was the objection taken before the High Court in the civil  revision preferred by the appellant.  It  was not taken as a ground in the special leave petition. It has been taken only by way of a separate  petition  filed  subsequently  and  seeking  leave  to  urge additional grounds. Such an objection cannot be allowed to be urged so belatedly. However, we have already held the argument based on the 1994 Amendment as of no merit.”

27. Learned counsel representing the private parties, in continuation of

the  above  submission placed  reliance  on  Kamlesh  Kumar  v.  State  of

Jharkhand, (2013) 15 SCC 460.  It was submitted, that the reliance on

the above judgment, was to demonstrate the same position, through a

proposition which was contextually different.  It is necessary to record,

that  the  instant  judgment  was  also  relied  upon  by  learned  counsel

representing the SEBI.  However, according to learned counsel for the

private  parties,  it  is  essential  also  to  take  into  consideration  the

observations  recorded  in  the  concurring  order  passed  by  Madan  B.

Lokur,  J.   First  of  all,  it  is  necessary  to  appreciate  the  submissions

canvassed.  They were recorded (in the opinion relied upon) as under:

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“25. The notification authorising the Special Judge to dispose of cases under  the  Foreign  Exchange  Management  Act,  1999  and  thereby effectively  transferring  the  petitioners’  case  pending  before  the Magistrate  to  the  Special  Judge  is  said  to  be  unlawful  since  the transfer is to a court that has no jurisdiction to try the offence. 26. Part II of the First Schedule to the Code of Criminal Procedure, 1973 (for short “the Code”) provides that for an offence punishable with imprisonment for three years and upwards but not more than seven years, the case would be triable by a Magistrate of the First Class. Section 56 of the Foreign Exchange Regulation Act, 1973 (for short  “FERA”)  now repealed by the Foreign Exchange Management Act, 1999 provides, inter alia, that for a violation of its provisions, the maximum punishment would be imprisonment which may extend to seven  years  and  with  fine.  Therefore,  effectively  transferring  the petitioners’ case to a Special Judge (of the rank of a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge) functioning under the Criminal  Law Amendment Act,  1952 (for short “the CLA Act”)  meant  its  trial  by  a  court  that  lacked  jurisdiction  over  the subject-matter.  In  support  of  this  contention,  great  reliance  was placed on some passages in A.R. Antulay v. R.S. Nayak. 27.2. Secondly, Section 7(1) of the CLA Act provides for trial of the case by the Special Judge notwithstanding anything contained in the Code.  Therefore,  the  statutory  power  available  to  this  Court  to transfer cases under Section 406 of the Code was statutorily taken away. Additionally, Section 406 of the Code only enabled this Court to transfer  cases  and  appeals  from one  High  Court  to  another  High Court or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. Section 406 of the Code did not empower this Court to transfer a case from the Special Judge under the CLA Act to the High Court and even if it did, that power was taken away by the CLA Act. Section 406 of the Code reads as follows:

“406. Power of Supreme Court to transfer cases and appeals  .—(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court.

(2)  The  Supreme Court  may act  under  this  section only on the application of the Attorney General of India or of a partly interested, and every such application shall  be made by motion,  which shall, except  when the  applicant  is  the Attorney General  of  India  or  the Advocate  General  of  the  State,  be  supported  by  affidavit  or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion

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that the application was frivolous or vexatious, order the applicant to pay  by  way  of  compensation  to  any  person  who  has  opposed  the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.” 27.3. The third reason   related to the power of transfer available to this Court under Article 142 of the Constitution. In this context, reference was made to a Constitution Bench decision of  this Court  in  Prem Chand Garg v.  Excise Commr. wherein it was observed that: (AIR p. 1002, para 12)

“12. … The powers of this Court are no doubt very wide and they are  intended to  be  and will  always  be  exercised  in  the  interest  of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent  with the substantive provisions of  the relevant statutory laws.” Since the order of this Court transferring the case from the Special Judge to the High Court was contrary to the statutory law and (as held in a later part in   Antulay  ) contrary to Article 14 and Article 19 of the Constitution, the order of transfer was liable to be set aside. In this context, this Court also noted that the power to create or enlarge jurisdiction is legislative in character and no court, whether superior or inferior or both combined, could enlarge the jurisdiction of a court. On this basis,  inter alia,  this Court  concluded that the transfer of Antulay case   from the Special Judge to the High Court was erroneous in law. 30. It was contended that assuming that at law the case could validly have  been  transferred  to  the  Special  Judge,  the  petitioners  are seriously  prejudiced  inasmuch  as  their  right  of  appeal  from  the decision of a Magistrate to a Sessions Judge is taken away. Due to this prejudicial action, which was taken by the High Court without hearing  the  petitioners,  the  notification  conferring  power  on  the Special Judge to try the case should be struck down.”

Based on the judgments relied upon by learned counsel representing the

private parties, as have been narrated in the foregoing paragraphs, since

the proceedings in the matters in hand were pending, before the Court of

Metropolitan Magistrate (or, the Judicial Magistrate, as the case may be),

when  ‘the  2002  Amendment  Act’  was  introduced  with  effect  from

29.10.2002,  the pending proceedings could not  be transferred,  to the

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‘forum’ created by ‘the 2002 Amendment Act’. In order to demonstrate

prejudice, learned counsel contended, that the right of the private parties

to avail  of  the remedy of  revision stood obviated.  Additionally it  was

reiterated, that the objects and reasons of the amended provisions, or

the  amended  provisions  themselves,  do  not  indicate  any  express  or

implied determination, that the change of ‘forum’ would be retrospective,

and would apply to pending matters, as well.  And as such, Section 26E

introduced  through  ‘the  2014  Amendment  Act’,  would  determine  the

‘forum’ for fresh matters, i.e.,  matters where cognizance had not been

taken till  the date of amendment.  In order to protect the proposition

being  canvassed  in  the  correct  perspective  and  context,  reliance  was

placed  on  Shankar  Ramchandra  Abhyankar  v.  Krishnaji  Dattatreya

Bapat, (1969) 2 SCC 74, wherefrom, our pointed attention was drawn to

the following observations:

“5. It would appear that their Lordships of the Privy Council regarded the revisional  jurisdiction to  be a  part  and parcel  of  the appellate jurisdiction of the High Court. This is what was said in Nagendra Nath Dey v. Suresh Chandra Dey 59 IA 283, 287. “There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate  Court,  asking  it  to  set  aside  or  revise  a  decision  of  a subordinate Court, is an appeal within the ordinary acceptation of the term......” Similarly in Raja of Remnad v. Kamid Rowthen and Others53 IA 74, a civil  revision petition was  considered to  be an appropriate  form of appeal  from the judgment in a suit  of  small  causes nature.  A full Bench of the Madras High Court in   P.P.P. Chidambara Nadar   v.   C.P.A. Rama Nadar and Others AIR 1937 Mad 385,   had to decide whether with reference to Article 182(2) of the Limitation Act 1908, the term “appeal”  was  used in  a  restrictive  sense  so  as  to  exclude  revision petitions and the expression “appellate court” was to be confined to a court exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law including the decisions of the

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Privy Council mentioned above the full Bench expressed the view that Article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that terms as used in the Civil Procedure Code. In    Secretary  of  State  for  India  in  Council   v.    British  India  Steam Navigation Company   13 CLJ 90, an order passed by the High Court in exercise of its revisional jurisdiction under Section 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning of  Section 39 of  the Latters Patent.  Mookerji,  J.,  who delivered  the  judgment  of  the  division  Bench  referred  to  the observations of Lord Westbury in   Attorney-General   v.   Sillem (1864) 10 RLC 704  , and of Subramania Ayyar, J., in   Chappan   v.   Moidin (1958) ILR Mad 68, 80  , on the true nature of the right of appeal. Such a right was  one  of  entering  a  superior  Court  and  invoking  its  aid  and interposition redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of  Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does  not  create  that  cause.  The  appellate  jurisdiction  may  be exercised in a variety of forms and, indeed, in any form in which the Legislature  may choose to prescribe.  According to Article  1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal.  An appeal  is  a  process of  civil  law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial.  A  writ  of  error  is  a  process  of  common law  origin,  and  it removes nothing for re-examination but the law. The former mode is usually  adopted  in  cases  of  equity  and  admiralty  jurisdiction;  the latter, in suits at common law tried by a jury. 6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the  Code  of  Civil  Procedure  circumscribes  the  limits  of  that jurisdiction but the jurisdiction which is being exercised is a part of the  general  appellate  jurisdiction  of  the  High  Court  as  a  superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger  sense.  We  do  not,  therefore,  consider  that  the  principle  of merger of orders of inferior courts in those of superior Courts would be  affected  or  would  become inapplicable  by  making  a  distinction between a petition for revision and an appeal.”

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28. While  repudiating  the  submissions  advanced  by  Mr.  C.A.

Sundaram,  Ms.  Pinky  Anand,  learned  Additional  Solicitor  General  of

India, submitted that as long as the rights of the private parties, to prefer

an appeal stands sustained, none of them can plead prejudice.  In this

behalf,  reference was made to Section 374(2) of  the Code of  Criminal

Procedure to contend, that the accused would not be deprived of  any

provision for preferring an appeal, after the ‘forum’ was altered from that

of the Metropolitan Magistrate (or, Judicial Magistrate of the first class),

to the Court of Session.  It was submitted, that Section 374 of the Code

of  Criminal  Procedure  clearly  postulates,  that  an  appeal  from  the

conviction against trial by the Court of Session or Additional Sessions

Judge, shall lie before the High Court.  In this behalf, it was sought to be

pointed out that even after ‘the 2002 Amendment Act’, upon trial of a

case by the Court of Session (or, Additional Sessions Judge), an appeal

would lie, before the High Court.  It was sought to be highlighted, that

the above position was further clarified in ‘the 2014 Amendment Act’

through Section 26C.

29. It was submitted, that the determination of ‘forum’, based on the

quantum/gravity of the sentence contemplated for an offence, under ‘the

SEBI Act’,  as canvassed by learned counsel for the private parties,  is

wholly  misconceived.   It  was  submitted,  that  there  was  no  such

mandate, that for offences where the prescribed punishment was up to

three years, a magisterial trial alone could be held.  It was pointed out,

that  the  punishment  contemplated  under  Section  308  of  the  Indian

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Penal Code was up to three years, but the cases under the said provision

was triable by a Court of Session.  It was submitted, that the use of the

word “or” in Section 374 of the Code of Criminal Procedure denotes, that

the expressions contained in the provision preceding and subsequent

thereto, were meant to be disjunctive.  It was pointed out, that in such a

case, by express provision, the High Court has been postulated as the

forum  of  appeal  (under  Section  374(2)  of  the  Code  of  Criminal

Procedure).  It was also the contention of the learned Additional Solicitor

General, that the appellate remedy is to the High Court, from any order

passed by a Court of Session (or, a Court of Additional Sessions Judge),

and from any order passed by any other court, where the punishment is

for  a  period  in  excess  of  seven  years.   In  order  to  demonstrate  the

disjunctive  character  of  the  above  provision,  reliance  was  placed  on

Devender  Kumar  Singla  v.  Baldev  Krishan  Singla,  (2005)  9  SCC 15,

wherein the Court observed as under:

“7. In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420 IPC is made out.  Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is  dishonestly  induced to  deliver  any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines “cheating”.  The said provision requires:  (  i  )  deception of any  person,  (  ii  )  whereby  fraudulently  or  dishonestly  inducing  that person to deliver any property to any person or to consent that any person shall  retain any property, or (  iii  )  intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative

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to each other and this is made significantly clear by use of disjunctive conjunction “or”. The definition of the offence of cheating embraces some cases  in  which no transfer  of  property  is  occasioned by the deception and some in which such a transfer occurs. Deception is the quintessence  of  the  offence.  The  essential  ingredients  to  attract Section  420  are:  (i)  cheating;  (ii)  dishonest  inducement  to  deliver property or to make, alter or destroy any valuable security or anything which  is  sealed  or  signed  or  is  capable  of  being  converted  into  a valuable security; and (iii) the mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (See Bashirbhai Mohamedbhai v. State of Bombay AIR 1960 SC 979.)”

Based  on  the  observations  extracted  above,  it  was  submitted,  that

inference sought to  be drawn by learned counsel  representing private

parties,  that  in  determining  ‘forum’  it  is  essential  to  take  into

consideration  the  length  of  the  punishment,  contemplated  under  the

provision violated, was nothing but a figment of imagination of learned

counsel for the private parties.  It was also contended on behalf of SEBI,

that  the availability  of  a revisional  jurisdiction to assail  an order has

never been accepted as a vested right.  In this behalf, reliance was placed

on a judgment rendered by a Constitution Bench in Pranab Kumar Mitra

v. State of West Bengal, AIR 1959 SC 144, wherein it was held as under:

“6. In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in S. 431 in respect of  criminal  appeals,  the High Court has the power to pass such  orders  as  to  it  may  seem  fit  and  proper,  in  exercise  of  its revisional jurisdiction vested in it by S. 439 of the Code. Indeed, it is a discretionary  power  which  has  to  be  exercised  in  aid  of  justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by S. 439 of  the Code,  read with S.  435, do not create any right in the litigant,  but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of  criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code.

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On  the  other  hand,  as  already  indicated,  a  right  of  appeal  is  a statutory right which has got to be recognized by the courts, and the right to appeal, where one exists, cannot be denied in exercise of the discretionary  power  even  of  the  High  Court.  The  Legislature  has, therefore,  specifically  provided,  by  S.  431  of  the  Code,  the  rules governing the right of substitution in case of death of an appellant, but  there  is  no  corresponding  provision in  Chapter  XXXII,  dealing with  the  question of  abatement  and the  right  of  substitution  in  a criminal revision. We may assume that the Legislature was aware of the decision of  the Bombay High Court,  referred to above, when it enacted S. 431 for the first time in the Code of 1882. If the Legislature intended that  an  application  in  revision  pending  in  a  High  Court, should  be  dealt  with  on the  same footing  as  a  pending appeal,  it would  have  enacted  accordingly.  But  in  the  absence  of  any  such enactment, we may infer that the power of revision vested in the High Court under Chapter XXXII of the Code, was left untouched — to be exercised according to the exigencies of each case. The High Court is not  bound  to  entertain  an  application  in  revision,  or  having entertained one, to order substitution in every case. It is not bound the other way, namely, to treat a pending application in revision as having  abated  by  reason  of  the  fact  that  there  was  a  composite sentence  of  imprisonment  and  fine,  as  some  of  the  Single  Judge decisions placed before us, would seem to indicate. The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who  has  been  convicted  and  sentenced,  or  he  may  have  been  a complainant who may have been directed under S. 250 of the Code to pay  compensation  to  an  accused  person  upon  his  discharge  or acquittal. Whether it was an accused person or it was a complainant who has moved the High Court in its revisional  jurisdiction, if  the High  Court  has  issued  a  Rule,  that  Rule  has  to  be  heard  and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in Court by a legal practitioner. In hearing and determining cases under S. 439 of  the  Code,  the  High  Court  discharges  its  statutory  function  of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications. In our opinion, therefore, the Bombay majority decision, in the absence of any statutory provisions in  respect  of  criminal  revisional  cases,  lays  down  the  correct approach.”

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For the same proposition, reliance was also placed on Kamlesh Kumar v.

State of Jharkhand, (2013) 15 SCC 460, and the Court’s attention was

drawn to the following observations:

“41. This question proceeds on the assumption that there is a right of revision. A Constitution Bench of this Court in   Pranab Kumar Mitra   v. State of W.B.   set the “right” issue at rest several decades ago. It was held that the power to revise an order is a discretionary power which is to be exercised in aid of justice and the exercise of that power will depend on the facts and circumstances of a given case. It was held: (AIR p. 147, para 6) “6. … The revisional powers of the High Court vested in it by Section 439 of the Code read with Section 435, do not create any right in the litigant,  but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence,  and that  subordinate criminal  courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code.” 43. While the revisional power of a superior court actually enables it to correct a grave error, the existence of that power does not confer any corresponding right on a litigant. This is the reason why, in a given  case,  a  superior  court  may  decline  to  exercise  its  power  of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is felicitously stated that a revision is not a right but only a “procedural facility” available to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special Judge does not take away this procedural  facility  available  to  the  petitioners.  It  only  changes  the forum and as already held above,  the petitioners  have no right  to choose the forum in which to file an appeal or move a petition for revising an interlocutory order.”

It was accordingly the contention of learned counsel for SEBI, for the

accused cannot make out any grievance to the effect that the change of

‘forum’, in the facts and circumstances of the present case, has adversely

affected their vested right.

30. It  was  also  highlighted  by the  Additional  Solicitor  General,  that

prior to ‘the 2002 Amendment Act’,  the postulated punishment under

Section 24(1) of ‘the SEBI Act’, extended to one year of sentence and fine,

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or both; and under Section 24(2) thereof, the prescribed punishment was

a minimum of one month, which could extend to three years or with fine,

which would not be less than rupees two thousand, but not more than

rupees ten thousand, or with both.  It was pointed out, that even at that

juncture, the ‘forum’ of trial under Sections 24(1) and 24(2) of ‘the SEBI

Act’ was the same, namely, “No court inferior to that of a Metropolitan

Magistrate or a Judicial Magistrate of the first class shall try an offence

punishable  under  this  Act”.   It  was  submitted,  that  after  ‘the  2002

Amendment Act’, “…no court inferior to the Court of Session shall try

any  offence  punishable  under  this  Act  ...”   In  the  above  view of  the

matter,  it  was  submitted,  that  the  entire  contention advanced at  the

hands  of  learned  counsel  representing  the  private  parties,  was

misconceived.

31. In addition to the submissions noticed in the foregoing paragraphs,

learned Additional Solicitor General contended, that the legislative intent

in ‘the 2002 Amendment Act’, as well as, ‘the 2014 Amendment Act’ was

clear.  It was submitted, that by ‘the 2002 Amendment Act’ the statutory

legislation took away the right of courts inferior to the Court of Session

from trying offences punishable under ‘the SEBI Act’.   Emphasis was

placed by learned counsel on the pointed indication in the provision, to

“…offences punishable under this Act.”  It was therefore asserted, that

the  above  amendment  especially  denuded  the  jurisdiction  of  courts

inferior to the Court  of  Session, to try offences punishable under the

Special  Act.   The  above  contention  was  sought  to  be  reiterated  by

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assailing, that trial before any court inferior to the Court of Session, after

‘the 2002 Amendment Act’, would be ex facie without jurisdiction.  For

supporting the aforesaid contention, learned counsel also emphasized on

the use of the words “no court inferior to” and the word “shall” in Section

26(2) of ‘the 2002 Amendment Act’, to highlight that jurisdiction of all

other inferior courts was taken away.  In order to support the aforesaid

contention,  learned counsel  placed reliance on Union of  India v.  A.K.

Pandey, (2009) 10 SCC 552, wherein reference was pointedly made to the

following observations:

“15. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision;  although  not  conclusive.  The  Court  has  to  examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the  word  “shall”  is  followed  by  prohibitive  or  negative  words,  the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as  such.  There  being  nothing  in  the  context  otherwise,  in  our judgment, there has to be clear ninety-six hours’ interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read as absolute. There is a purpose behind this provision: that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about  his  defence  and  ask  the  authorities,  if  necessary,  to  take reasonable  steps  in  procuring the  attendance  of  his  witnesses.  He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours.”

And, on the subject in hand, reference was made to Mannalal Khetan v.

Kedar Nath Khetan, (1977) 2 SCC 424, wherefrom the Court’s attention

was drawn to the following observations:

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17. In Raza Buland Sugar Co. Ltd. v.  Municipal Board, Rampur this Court  referred to  various tests for  finding out when a provision is mandatory or directory. The purpose for which the provision has been made,  its  nature,  the  intention  of  the  legislature  in  making  the provision, the general inconvenience or injustice which may result to the  person  from  reading  the  provision  one  way  or  the  other,  the relation of the particular provision to other provisions dealing with the same  subject  and  the  language  of  the  provision  are  all  to  be considered. Prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is completely to refrain from doing the forbidden act. Therefore, negative,  prohibitory  and  exclusive  words  are  indicative  of  the legislative  intent  when  the  statute  is  mandatory.  (See  Maxwell  on Interpretation of Statutes, 11th Edn., p. 362 seq.; Crawford: Statutory Construction,  Interpretation  of  Laws,  p.  523  and  Seth  Bikhrai Jaipuria v. Union of India.)”

32. We  have  given  our  thoughtful  consideration  to  the  submissions

advanced by Ms. Pinky Anand, learned Additional Solicitor General of

India, in support of the conclusions drawn by the Delhi High Court in

Mahender Singh v. High Court of Delhi (Writ Petition (C) No.141 of 2007,

decided on 11.01.2008) and to oppose the view expressed by the Bombay

High Court in M/s. Classic Credit Ltd. v. State of Maharashtra (Criminal

Application No.1557 of  2007,  decided on 16.01.2008).   We have  also

considered the converse stance, raised by Mr. C.A. Sundaram, learned

Senior Advocate representing most of the private parties.  

33. In a manner of understanding, it may well be possible to conclude,

that  the  adjudicatory  ‘forum’  was  not  altered  at  all  by  ‘the  2002

Amendment Act’.  In this behalf, reference may be made to Section 26(2)

of ‘the SEBI Act’, as it existed prior to the 2002 amendment.  The above

provisions mandated,  that  no Court  inferior to  that  of  a  Metropolitan

Magistrate (or, a Judicial Magistrate of the first class) shall try an offence

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punishable  under this Act.   The contemplated ‘forum’  of  adjudication

could be the Court of a Metropolitan Magistrate (or, a Judicial Magistrate

of the first class), or any other higher court.  And not necessarily the

Court of a Metropolitan Magistrate (or, a Judicial Magistrate of the first

class).  The higher court which could have tried matters even before ‘the

2002 Amendment Act’, could well be the Court of Session.  And as such,

in case of a determination, the trial of offences under ‘the SEBI Act’ could

have  been  conducted  by  a  Court  of  Session  even  prior  to  ‘the  2002

Amendment Act’, there would be nothing wrong about it.  The provision,

as it  existed prior to ‘the 2002 Amendment Act’,  clearly contemplated

that  even  a  Court  of  Session  could  try  offences  postulated  by  the

provisions of ‘the SEBI Act’.  As such, when ‘the 2002 Amendment Act’

provided that adjudication of offences under ‘the SEBI Act’ would be by a

court not inferior to that of a Court of Session, the position postulated

prior  to  the  aforesaid  amendment  cannot  be  stated  to  have  been

breached.  It may well be said to be curtailed from the original position.

But, it could not be said to be in conflict with the original position. In a

similar manner of understanding, even after ‘the 2014 Amendment Act’,

which provided that offences arising under ‘the SEBI Act’ would be tried

by a Special Court (- Section 26B), the position cannot be taken to be at

variance from the one, as it existed prior to the 2002 amendment, as

also,  the position as it  existed after ‘the 2002 Amendment Act’.   The

reason for the above inference is, that a Special Court (notified by the

Central Government) was to be a court which, immediately before such

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notification, was the Court of Session or an Additional Sessions Judge

(-Section 26A(3)).  Truly therefore, a Special Court was a court superior

to a Metropolitan Magistrate (or, a Judicial Magistrate of the first class),

as contemplated prior to ‘the 2002 Amendment Act’.   It  was also the

same  as  the  court  contemplated  under  ‘the  2002  Amendment  Act’,

namely,  the  Court  of  Session.   Therefore,  the  projection  of  the

jurisdictional claim, as has been raised by the accused herein, is a mere

furore, without any serious justification.

34. We will now deal with the legality of the propositions canvassed, at

the hands of learned counsel for the rival parties.   In our considered

view, the legal position expounded by this Court in  a large number of

judgments  including  New  India  Insurance  Co.  Ltd.  v.  Shanti  Misra,

(1975)  2  SCC  840;  Securities  and  Exchange  Board  of  India  v.  Ajay

Agarwal, (2010) 3 SCC 765; and Ramesh Kumar Soni v. State of Madhya

Pradesh,  (2013)  4  SCC 696,  is  clear  and unambiguous,  namely,  that

procedural  amendments  are  presumed  to  be  retrospective  in  nature,

unless the amending statute expressly or impliedly provides otherwise.

And also,  that  generally  change  of  ‘forum’  of  trial  is  procedural,  and

normally  following  the  above  proposition,  it  is  presumed  to  be

retrospective in nature, unless the amending statute provides otherwise.

This determination emerges from the decision of this Court in Hitendra

Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602; Ranbir Yadav

v.  State  of  Bihar (1995) 4 SCC 392,  and  Kamlesh Kumar v.  State  of

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Jharkhand,  (2013)  15  SCC  460,  as  well  as,  a  number  of  further

judgments noted above.

35. We  have  also  no  doubt,  that  alteration  of  ‘forum’  has  been

considered to be procedural, and that, we have no hesitation in accepting

the contention advanced on behalf of the SEBI, that change of ‘forum’

being  procedural,  the  amendment  of  the  ‘forum’  would  operate

retrospectively, irrespective of whether the offence allegedly committed by

the accused, was committed prior to the amendment.   

36. Whilst  accepting  the  contentions  advanced  on  behalf  of  learned

counsel for SEBI pertaining to ‘forum’ (with reference to which inferences

have been drawn in the foregoing paragraph), it is not possible for us to

outrightly  reject  the  contentions  advanced  by  Mr.  C.A.  Sundaram,

learned Senior Advocate, while projecting the claim of the accused.  We

are  not  oblivious  of  the  conclusions  recorded  by  this  Court  in

Commissioner of Income Tax, Orissa v. Dhadi Sahu, 1994 Supp (1) SCC

257, wherein it was held that a law which brings about a change in the

‘forum’  does  not  affect  pending  actions,  unless  an  intention  to  the

contrary is clearly shown.  One of the modes in which such intentions

can be shown is, by making a provision for change for a proceeding from

the court or the tribunal where it was pending, to the court or tribunal

under which the new law gets jurisdiction.  In the said judgment, this

Court also observed, that it was true that no litigant had any vested right

in the matter of procedural law, but where the question is of the change

of ‘forum’, it ceases to be a question of procedure only, with reference to

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pending matter.  The ‘forum’ of appeal or proceedings, it was held, was a

vested  right  as  opposed  to  pure  procedure  to  be  followed  before  a

particular  ‘forum’.   It  was  therefore  concluded,  that  a  right  becomes

vested  when  the  proceedings  are  initiated,  in  spite  of  change  of

jurisdiction/forum  by  way  of  amendment  thereafter.   So  also,  in

Manujendra  Dutt  v.  Purnedu Prosad  Roy  Chowsdhury,  AIR  1967  SC

1419, wherein a question arose, as to whether, by the deletion of Section

29 of the Thikka Tenancy Act, 1949, the jurisdiction of the Controller

over a pending suit was taken away.  It was held by this Court, that the

deletion of Section 29 did not deprive the Controller of his jurisdiction to

try the pending suit, on the date when the Amending Act came into force.

It  was  pointed  out,  that  though the  amending Act  did  not  contain  a

saving clause, the saving contained in Section 8 of the Bengal General

Clauses Act, 1899, which corresponded with Section 6 of the Central Act,

fully applied to the issue.  And as such, the transfer of a suit having

been lawfully filed under Section 29 of the Act could not be affected by

its deletion or by its amendment.  Similarly, in Mohd. Idris v. Sat Narain,

AIR 1966 SC 1499, the question which arose was, whether a Munsif who

was trying a suit under the U.P. Agriculturist Relief Act ceased to have

jurisdiction,  after  the  passing  of  the  U.P.  Zamindari  Abolition  and

Amendment  Act,  1953,  which  conferred  jurisdiction  on  an  Assistant

Collector. This Court held that the jurisdiction of the Assistant Collector

was itself created by the Abolition Act, and as there was no provision in

that Act, that the pending case were to stand transferred to the Assistant

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Collector for disposal, the Munsif continued to have jurisdiction to try

the suit.  It was also observed in the above judgment, that the provisions

for change over of proceedings from one court to another, are only found

in a statute, which takes away the jurisdiction of one court, and confers

it on another, in pending actions.  Since the amending Act did not show

the pending proceedings before the court would abate, it was felt, that

the  court  before  which proceedings  were  filed,  continued to  have  the

jurisdiction  to  adjudicate  the  same.   The  above  position  has  been

considered affirmatively by this Court also in Nani Gopal Mittal v. State

of Bihar, AIR 1970 SC 1636; Ambalal Sarabhai Enterprises v. Amrit Lal

and Co., (2001) 8 SCC 397; R. Kapilnath v. Krishna, (2003) 1 SCC 444;

Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 14 SCC 696;

and Videocon International Limited v. Securities and Exchange Board of

India, (2015) 4 SCC 33. From a perusal of the conclusions drawn in the

above judgments, we are inclined to accept the contention, that change

of ‘forum’ could be substantive or procedural.  It may well be procedural

when the remedy was yet to be availed of, but where the remedy had

already been availed of (under an existing statutory provision), the right

may be treated as having crystalised into a vested substantive right.   

37. In the latter situation referred to (and debated) in the preceding

paragraph,  where  the  remedy  had  been  availed  of  prior  to  the

amendment, even according to learned counsel for the private parties,

unless  the  amending  provision  by  express  words,  or  by  necessary

implication,  mandates  the  transfer  of  proceedings  to  the  ‘forum’

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introduced by the amendment, the ‘forum’ postulated by the unamended

provision,  would continue to have the jurisdiction to  adjudicate  upon

pending matters (matters filed before amendment).  In view of the above,

we are of the considered view, that no vested right can be claimed with

reference  to  ‘forum’,  where  the  concerned  court,  had  not  taken

cognizance and commenced trial  proceedings,  in consonance with the

unamended provision.

38. Insofar as the matters where proceedings had already commenced

before the amendment, change of ‘forum’ for trial came into effect, it is

apparent  from the  judgments  referred  to  in  the  preceding paragraph,

that the general principle is that a law which brings about a change in

the  ‘forum’,  does  not  affect  pending  actions,  unless  intention  to  the

contrary is clearly shown.  What needs to be determined with reference

to ‘the 2002 Amendment Act’,  as well  as,  with reference to ‘the 2014

Amendment Act’ is, whether an intention to the contrary was expressed

therein, so as to alter the ‘forum’, where proceedings were pending.  And

to  bring  such  proceedings  to  the  ‘forum’  contemplated  by  the

amendment.   

39. Having  given  our  thoughtful  consideration  to  the  proposition

referred to in the preceding paragraph, we are of the view, that Section

26, as amended through ‘the 2002 Amendment Act’, leaves no room for

any doubt, that the erstwhile ‘forum’ would cease to be the adjudicatory

authority and the newly created ‘forum’ – the Court of Session, would

deal with all pending matters as well.  The phrase, “No court inferior to

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that of a court of session shall try any offence punishable under this

Act”, leaves no room for any doubt, that the erstwhile ‘forum’ – the Court

of Metropolitan Magistrate  (or, Judicial Magistrate of the first class), was

denuded of its jurisdiction.  The court having jurisdiction earlier, being a

court inferior to a Court of Session ceased to have the jurisdiction to

adjudicate  matters  punishable  under  ‘the  SEBI  Act’,  after  the

amendment  under  ‘the  2002  Amendment  Act’  came  into  force,  on

29.10.2002.  There  can  be  no  doubt  whatsoever,  that  ‘the  2002

Amendment Act’,  expressly diverted jurisdiction from the Metropolitan

Magistrates (and, Judicial Magistrates of the first class) to try offences

under  ‘the  SEBI  Act’,  after  ‘the  2002  Amendment  Act’  became

operational.

40. The position was similarly explicit in Section 26B inserted by ‘the

2014 Amendment Act’, by use of the words “… all offences under this Act

committed prior to the date of  commencement of  the Securities Laws

(Amendment) Act, 2014 or on or after the date of such commencement,

shall be … tried by the Special Court established for the area in which

the offence is committed…”.  There can be no doubt whatsoever, that ‘the

2014 Amendment Act’ grouped all offences together as one, by providing

that all offences committed prior to or after ‘the 2014 Amendment Act’,

would be tried by a Special Court.  The attempt of the learned Senior

Advocate, to segregate the cases arising under ‘the SEBI Act’ into two

categories, is clearly and expressly ruled out, by the language adopted in

the  provision  itself.   We  are  of  the  view,  that  Section  26B  was

77

categorically explicit, because of the clear intent expressed therein, that

all offences committed under ‘the SEBI Act’, prior to the introduction of

‘the 2014 Amendment Act’, would be tried by the Special Court. We are

therefore of the view, that there is absolutely no ambiguity, that after ‘the

2014  Amendment  Act’,  proceedings  in  respect  of  offences  committed

prior thereto, could only be tried by a Special Court.   

41. We have intentionally overlooked and not extracted the words “…

shall be taken cognizance of and tried by the Special Court …”, relied

upon  by  learned  counsel  for  the  accused,  to  emphasise  that  the

amendment  of  ‘forum’  contemplated  under  Section  26B  would  be

applicable only to matters where cognizance had not been taken.  It is

not possible, either from the language of the provision, or even from the

surrounding circumstances, to arrive at the advocated position. We are

of the view, that the legislative intent was clearly contrary to the one

suggested.   Ordinarily,  cognizance  is  taken  by  a  magisterial  court,

whereupon, the matter is committed to the concerned higher court, for

trial.   Herein, the Special Courts (a Court of Session or an Additional

Sessions  Judge, in terms of  Section 26D(1) of ‘the 2014 Amendment

Act’) provides for a position different from the provisions contained in the

Code of Criminal Procedure.  Now, by ‘the 2014 Amendment Act’,  the

function  of  taking  cognizance  has  been  vested  with  Special  Court,

conferred with the responsibility to conduct trials.   In our considered

view, therefore,  all  pending matters where cognizance had been taken

and proceedings had commenced, before the Court of Session, would not

78

be affected.  ‘The 2014 Amendment Act’ which provided for a change of

‘forum’,  also authorized a Special  Court to take cognizance.  It is not

reasonable  to  read  anything  further  into  the  words  highlighted  by

learned senior counsel.  ‘The 2014 Amendment Act’ expressly provided,

that for all offences committed even prior to ‘the 2014 Amendment Act,

proceedings  would  be  conducted  only  before  the  Special  Court.   The

provision itself therefore expressly mandated, that the change of ‘forum’

would operate retrospectively, and as such, pending proceedings would

necessarily have to be transferred to the changed ‘forum’ – the Special

Court.  This is our considered view.  For the reasons recorded above, we

hereby  hold,  that  even for  such  matters  where  trial  had commenced

under the unamended provision, after the amendments, which we have

held  to  be  operational  retrospectively,  the  trial  would  move  to  the

changed ‘forum’ (to the Court of Session, after ‘the 2002 Amendment Act’

and, to the Special Court, after ‘the 2014 Amendment Act’).

42. We  shall  now  endeavour  to  attempt  to  record  the  submission

advanced  by  Mr.  D.P.  Singh,  Advocate,  who  also  represented  the

accused.  The first contention advanced by learned counsel was simple

and  straightforward.   It  was  submitted,  that  transfer  of  jurisdiction,

consequent  upon  ‘the  2002  Amendment  Act’,  from  the  Court  of  a

Metropolitan Magistrate (or, a Judicial Magistrate of the first class), to a

Court of Session, would seriously prejudice the accused represented by

him.  It was his contention, that after  the amendment of Sections 24

and  26  by  ‘the  2002  Amendment  Act’,  the  punishment  for  offences

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committed under ‘the SEBI Act’ were enhanced to the extent, that the

same could no longer be tried as summons-cases.  It was pointed out,

that the trial of cases after ‘the 2002 Amendment Act’, could only be as

warrant-cases.  In this behalf, it was sought to be asserted, that under

Section 2(x) of the Code of Criminal Procedure, a warrant-case is a case

“…relating to an offence punishable with death, imprisonment for life or

imprisonment for a term exceeding two years”.  In conjunction with the

definition  of  warrant-cases,  learned  counsel  placed  reliance  on  the

definition of  summons cases by inviting the attention of  the Court to

Section 2(w), wherein a summons case is defined as a case “…relating to

an offence, and not being a warrant-case”.   During the course of  the

instant submission,  learned counsel  inter  alia invited our attention to

Section 4 of the Code of Criminal Procedure, which deals with trial of

offences under the Indian Penal Code and other laws, so as to conclude,

that  for  offences  punishable  with  imprisonment  for  more  than  seven

years, the trial is liable to be conducted by a Court of Session.  In this

behalf, the pointed attention of this Court was also drawn to Schedule I,

Part II appended to the Code of Criminal Procedure, which comprises of

classification of offences from other laws (other than the Indian Penal

Code).  It was pointed out, that ‘the SEBI Act’ satisfies the category of

“other laws”, and therefore, for an offence punishable with imprisonment

for more than seven years, the trial can only be by a Court of Session.  It

was submitted, that where the contemplated punishment was for three

years and upwards (though less than seven years), the trial had to be

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conducted by a Magistrate of the first class.  Again making a reference to

the  Part  II  of  the  First  Schedule  (appended  to  the  Code  of  Criminal

Procedure), it was submitted, that if the punishment contemplated was

of imprisonment for less than three years, or with fine alone, the trial

could  be  conducted  by  any  Magistrate.   It  was  submitted,  that  the

provisions of Sections 24 and 26 of ‘the SEBI Act’,  prior to ‘the 2002

Amendment  Act’,  were  drawn in consonance  with  Part  II  of  the First

Schedule,  appended to the Code of  Criminal  Procedure, and as such,

trial had necessarily to be conducted by a Metropolitan Magistrate (or, a

Judicial Magistrate of the first class).

43. In  order  to  demonstrate  prejudice,  learned  counsel  in  the  first

instance,  invited  the  Court’s  attention  to  Section 260  of  the  Code  of

Criminal Procedure, and in conjunction thereto, to Section 262 thereof.

The aforestated provisions are being extracted hereunder:

“260.  Power  to  try  summarily.  –(1)  Notwithstanding  anything contained in this Code (a) any Chief Judicial Magistrate; (b) any Metropolitan Magistrate; (c) any Magistrate of the first class specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way all or any of the following offences: (i)  offences  not  punishable  with  death,  imprisonment  for  life  or imprisonment for a term exceeding two years; (ii) theft, under section 379, section 380 or section 381 of the Indian Penal Code, 1860 (45 of 1860), where the value of the property stolen does not exceed two thousand rupees; (iii)  receiving  or  retaining  stolen  property,  under  section  411  of the Indian  Penal  Code,  1860 (45  of  1860),  where  the  value  of  the property does not exceed two thousand rupees; (iv) assisting in the concealment or disposal of stolen property, under section 414 of the Indian Penal Code, 1860 (45 of  1860) where the value of such property does not exceed two thousand rupees;

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(v)  offences under sections 454 and 456 of  the Indian Penal  Code, 1860 (45 of 1860); (vi) insult with intent to provoke a breach of the peace, under section 504  and criminal  intimidation  punishable  with  imprisonment  for  a term which may extend to two years, or with fine, or with both, under section 506 of the Indian Penal Code, 1860 (45 of 1860); (vii) abetment of any of the foregoing offences; (viii) an attempt to commit any of the foregoing offences, when such attempt is an offence; (ix) any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871). (2)  When,  in  the  course  of  a  summary  trial  it  appears  to  the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear, the case in the manner provided by this Code.

xxx xxx xxx 262. Procedure for summary trials. –(1) In trials under this Chapter, the procedure specified in this Code for the trial  of  summons-case shall be followed except as hereinafter mentioned. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.”

Relying upon sub-section (1) of Section 260, it was contended, that it

was open to the Metropolitan Magistrate (or, Judicial Magistrate of the

first class),  to try the accused under the ‘the SEBI Act’,  by holding a

summary  trial.   In  case,  the  Metropolitan  Magistrate  (or,  Judicial

Magistrate of the first class), exercises his discretion to try an accused by

holding  a  summary  trial,  the  Metropolitan  Magistrate  (or,  Judicial

Magistrate, as the case may be), could not impose a sentence in excess of

three months. It was contended, that the above right which was vested in

the  accused,  stands  taken  away  by  ‘the  2002  Amendment  Act’  on

account of change of ‘forum’.  So also, by ‘the 2014 Amendment Act’.  It

was  pointed out,  that  in  the above view of  the matter  the change of

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‘forum’ – contemplated through ‘the 2002 Amendment Act’, could not be

considered as having mere procedural  implications,  but must also be

deemed to  have substantive  implications.   It  was submitted,  that  the

adoption  of  the  process  of  summary  trial,  is  only  vested  with  Chief

Judicial Magistrates, Metropolitan Magistrates, or Magistrates of the first

class.  Consequent upon the change of ‘forum’, to that of the Court of

Session, it was asserted, the possibility of adjudication of the accused by

holding  a  summary  trial  has  been  taken  away.   And  therefore,  the

possibility of being let off with a light sentence of three months, has also

been taken away.  It was submitted, that the instant right vested in the

accused under the unamended provisions of Sections 24 and 26 of ‘the

SEBI Act’ could not have been taken away retrospectively.  It was pointed

out, that after ‘the 2002 Amendment Act’, the accused cannot insist, in

case he is found guilty, that the sentence imposed upon them should be

limited to three months.

44. It was the emphatic contention of learned counsel for the accused,

that irrespective of the submissions advanced on behalf of the accused,

as have been canvassed by other learned counsel, if it could be shown

that the change of ‘forum’ of trial, was discriminatory or prejudicial or

created a disability or disadvantage or fastened an obligation, not arising

in the ‘forum’  of  trial  prior  to  the amendment,  the change of  ‘forum’

would have to be prospective.   In this behalf,  reliance was placed on

Union of India v. Sukumar Pyne, AIR 1966 SC 1206; Nani Gopal Mitra v.

State  of  Bihar,  AIR  1970  SC 1636;  New India  Insurance  Co.  Ltd. v.

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Shanti  Misra (1975)  2  SCC 840;  Hitendra Vishnu Thakur v.  State  of

Maharashtra (1994) 4 SCC 602; Ranbir Yadav v. State of Bihar (1995) 4

SCC 392, and  Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC

460.  We are of the view, that the legal proposition canvassed, has been

correctly advanced.  The question however is, whether it can be applied

to the instant case, based on the submissions recorded in the foregoing

paragraph.

45. Learned  Additional  Solicitor  General,  vehemently  contested  the

above submissions.  It was pointed out, that prior to amendment in ‘the

SEBI Act’ with effect from 29.10.2002, the punishment prescribed was as

under:

(a) Section 24(1) of ‘the SEBI Act’ imprisonment was for a term which

may extend to one year, or with fine or both,

(b) Section 24(2) of the SEBI Act imprisonment was for a term which may

extend  to  three  years  or  with  fine  which  shall  not  be  less  than  two

thousand rupees but which may extend to ten thousand or with both.

It was highlighted, that Section 2(x) of the Code of Criminal Procedure

defines a ‘warrant case’, as a case relating to an offence punishable with

death, imprisonment for life or imprisonment for a term exceeding two

years.   Section  2(w)  of  the  Code  of  Criminal  Procedure  defines  a

‘summons case’, as a case relating to an offence, and not being a warrant

case.  It was submitted, that all  offences would either be tried under

Chapter  XIX of  the Code of  Criminal  Procedure as  ‘warrant  cases’  or

under  Chapter  XX  as  ‘summons  cases’  in  view  of  the  quantum  of

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maximum  imprisonment  prescribed  (of  three  years  and  one  year

respectively).  The ‘forum’ of trial for both the aforesaid was the same.  It

was sought to be emphasized, that Section 260 of the Code of Criminal

Procedure is not in Chapter XIX or XX but under Chapter XXI.  The

application of Section 260 according to the learned Additional Solicitor

General, is discretionary, and no right is vested in the acused to be tried

summarily.  And therefore, no right is vested in an accused to claim a

summary  trial.  Furthermore,  Section  262(2),  according  to  learned

Additional Solicitor General, provides that ‘no sentence of imprisonment

for a term exceeding three months shall be passed in the case of any

conviction under the chapter.  Therefore, the discretion of a Magistrate

cannot prevail over the unambiguous and clear special Statute, i.e., ‘the

SEBI Act’, wherein, the punishment prescribed is one year or three years

(in the case of  the pre-amendment,  of  Section 24(1) and 24(2) of  ‘the

SEBI Act’.

46. Moreover  it  was  submitted,  that  in  ‘the  SEBI  Act’,  there  is  no

provision  of  summary  trial  of  the  cases.   The  legislative  intent,  is

therefore very clear.  Wherever the legislature had envisaged summary

trial of cases, the legislature has made specific provision for the same, in

the  enactment  itself.   Under  the  Negotiable  Instrument  Act,  the

legislature had provided under Section 143 of the Negotiable Instruments

Act, 1881.  Similar provisions were also provided for under Section 16A

of the Food Adulteration Act, 1954.  It was accordingly asserted, that

under special enactments, whenever the legislature desired the offences

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to be tried summarily, it provided so expressly.  But, no such provision

has  expressly  been  enacted  under  ‘the  SEBI  Act’.   There  was  no

expression  in  either  the  pre-amendment  or  the  post-amendment

legislation, of any legislative intent of the trial proceeds, before different

forums for violations of the different provisions of Section 24(1) and 24(2)

of ‘the SEBI Act’.  As ‘the SEBI Act’ had provided different punishment

under Sections 24(1) and 24(2), for trial before the same ‘forum’, the plea

raised by learned counsel for the accused, cannot be accepted.

47. Furthermore, it was pointed out, that the trial under Chapter XIX

is for warrant cases (starting from Section 238 to 250).  Chapter XX is for

Summons Case (starting from Sections 251 to 259).  Both these chapters

are very exhaustive in nature, and prescribe complete procedure in itself,

and provided sufficient protections.  Provisions for summary trial, on the

other  hand,  are  in  Chapter  XXI.   Further,  summary  trial  is  at  the

discretion of the magistrate and cannot be sought as a matter of right.

The  language  of  Section  260(1)  is  “… may,  if  he  thinks  fit,  try  in  a

summary way …”.   The language  of  section is  crystal  clear.   Section

260(2) even provides, that the magistrate can try the case in the regular

manner even after deciding to proceed summarily, at any time, if he finds

during the course of summary trial, that the nature of the case is such,

that it is undesirable to try it summarily. It was accordingly asserted,

that  the  accused  under  ‘the  SEBI  Act’,  do  not  have  any  right  to  a

summary trial, leave alone a valuable right.

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of  the  Code  of  Criminal  Procedure,  for  the  matter  of  jurisdiction,  is

wholly misconceived.   

49. It is also essential,  to make a reference to Part II of the Second

Schedule  to  the  Code  of  Criminal  Procedure.  The  same  is  extracted

hereunder:

“II – CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS

Offence Cognizable or non-cognizable

Bailable  or non-bailable

By what court triable

1 2 3 4 If  punishable  with death,  imprisonment for  life,  or imprisonment  for more than 7 years,

Cognizable Non-bailable Court of Session

If  punishable  with imprisonment  for  3 years,  and  upwards but not more than 7 years,

Cognizable Non-bailable Magistrate of the first class

If  punishable  with imprisonment for less than 3 years or with fine only.

Non-cognizable Bailable Any Magistrate

It is imperative for us to record, that the classification of offences other

than the offences under the Indian Penal Code, and the courts by which

such offences would be triable, expressed in Part II of the First Schedule,

must  essentially  be  read  with  Section  26  of  the  Code  of  Criminal

Procedure.  Part II of the First Schedule, would therefore be applicable

only in cases where, the other laws (-other than the Indian Penal Code)

do  not  postulate  the  adjudicatory  court.   In  such  cases,  offences

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(-provided for under other laws) if punishable with death, imprisonment

for life or imprisonment for more than seven years, would be tried by a

Court  of  Session,  and where,  the offence in question was punishable

with  imprisonment  for  three  years  and  upwards,  but  not  more  than

seven years, the adjudicatory court would be the Court of Magistrate of

the first class.  And if, the punishment of the offence is imprisonment for

less than three years or with fine only, the matter would be triable by

any Magistrate. The above contingencies contemplated in Part II of the

First Schedule (appended to the Code of Criminal Procedure), are clearly

inapplicable  to  ‘the  SEBI  Act’  on  account  of  the  fact,  that  the

adjudicatory court (prior to ‘the 2002 Amendment Act’), was a court not

inferior to that of the Metropolitan Magistrate  (or, a Judicial Magistrate

of the first class), after ‘the 2002 Amendment Act’, it was a court not

inferior to a Court of Session, and finally, after ‘the 2014 Amendment

Act’, adjudication was vested with Special Courts.  Therefore, at no stage

was  there  any  ambiguity  of  ‘forum’  for  trial  which  would  deal  with

offences postulated under ‘the SEBI Act’.   

50. We may now deal with the proposition canvassed pointedly.  The

mandate contained in Section 260 of the Code of Criminal Procedure,

enabling  “(a)  any  Chief  Judicial  Magistrate;  (b)  any  Metropolitan

Magistrate; (c) any Magistrate of the first class”, to try in a summary way

offences mentioned at (i)  to (ix) of sub-section (1), has a precondition.

This precondition is, that the court concerned must be “… specifically

empowered in this behalf by the High Court…”.  Therefore, the authority

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to  decide  a  matter  through  a  summary  process  under  the  Code  of

Criminal Procedure has to be express (by the High Court), and the same

does not automatically flow out of Section 260, aforementioned.  The use

of the words “…all or any of the following offences …” with reference to

the  offences mentioned at  (i)  to  (ix)  of  sub-section (1)  of  Section 260

further makes it apparent, that the summary process could be applied

only  to  the  clearly  defined  exigencies/offences.   It  is  therefore,  that

Section 26(b) assumes significance, because it endeavours to deal with

offences provided for in special enactments.  Reliance on Section 260,

with reference to offences provided for in special enactments, in our view,

is clearly misconceived. Since the ‘forum for trial under the SEBI Act’ is

derived from Section 26(b) of the Code of Criminal Procedure, the same

would  need an express   order  of  empowerment  for  holding summary

proceedings, before the court concerned adopts the summary procedure.

And that is exactly why, summary proceedings are expressly provided

for, by different legislative enactments, i.e., where the competent court

for  trial  is  determined  under  Section  26(b)  of  the  Code  of  Criminal

Procedure.  It may illustratively be noticed, that when legislative intent

was to provide for summary proceedings, the legislation itself expressly

provided for the same, as under the Negotiable Instruments Act, 1881,

and the Food Adulteration Act, 1954, wherein summary procedure has

been legislatively provided for.  It is therefore apparent, that the issue

whether  proceeding  can  be  conducted  by  adopting  the  summary

procedure  cannot  be  inferred,  when the  court  for  trial  is  determined

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under Section 26(b) aforementioned.  Both the above enactments (the

Negotiable Instruments Act, 1881; and the Food Adulteration Act, 1954),

are regulated by Section 26(b) aforementioned, just as ‘the SEBI Act’.

The number of legislative enactments providing for summary proceedings

can be multiplied.  What is of importance is, that the legislative intent in

matters falling in Section 26(b) of the Code of Criminal Procedure, for

holding summary proceedings has been express.  In the absence of any

similar  provision  under  ‘the  SEBI  Act’,  it  is  natural  to  assume,  that

summary proceedings were not contemplated by the legislation, and has

to be considered as precluded.  In the absence of an express provision for

holding summary proceedings in the trial  of  offences under ‘the SEBI

Act’,  it  is  not  possible  for  us  to  accept  the  contention  canvassed  by

learned  counsel,  by  merely  relying  on  Section  260  of  the  Code  of

Criminal Procedure.

51. It also needs to be kept in mind, that Section 26(2) of ‘the SEBI Act’

(prior  to  ‘the  2002  Amendment  Act’)  expressly  provided,  “No  court

inferior to that of a Metropolitan Magistrate (or, a Judicial Magistrate of

the first  class)  shall  try  an offence punishable under this Act”.   It  is

therefore apparent, that it was not imperative, that the ‘forum’ for trial of

offences under the unamended Section 24 of  ‘the SEBI Act’  would be

conducted only by a Metropolitan Magistrate (or, a Judicial Magistrate of

the first class).  Trials for offences under ‘the SEBI Act’, even prior to ‘the

2002 Amendment Act’,  could well have been conducted by a Court of

Session,  or  an  Additional  Sessions  Judge.  If  trial  had  actually  been

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vested in such a superior court (-as the same was possible), Section 260

of the Code of Criminal Procedure, would not have been applicable, as

Section 260 comes into play only for trials by courts of Chief Judicial

Magistrates,  Metropolitan  Magistrates  and  Judicial  Magistrates  of  the

first class. For the instant reason also, the provision of Section 260 of the

Code of Criminal Procedure, cannot be so interpreted, as is suggested by

learned  counsel  representing  the  accused.   Since  the  applicability  of

Section 260 of the Code of Criminal Procedure to proceedings under ‘the

SEBI Act’ has not been accepted, the prejudice claimed on behalf of the

accused under Section 262 of the Code of Criminal Procedure (-which is

dependent on Section 260 of the Code) can also not be accepted.

52. The  second  contention  advanced  by  Mr.  D.P.  Singh,  learned

counsel was, that the right of revision available to the accused, prior to

the amendment to ‘the SEBI Act’, has been taken away.  It was pointed

out, that this aspect also had substantive (and, not merely procedural)

implications  for  the  accused.   It  was  pointed  out,  that  the  right  of

revision being  a valuable right of the accused, the deprivation of the

above valuable right, emerging from the change of ‘forum’ from the Court

of the Metropolitan Magistrate (or, Judicial Magistrate of the first class)

by ‘the 2002 Amendment Act’, and by ‘the 2014 Amendment Act’, should

not be considered as a trivial procedural issue. It was submitted, that the

taking  away  of  the  right  of  revision  from  an  accused,  has  to  be

considered as a substantial procedural deprivation.  It was submitted,

that cases where an amending enactment, takes away favourable rights,

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Amendment Act, was a valuable right of the accused, which had been

taken away.   

53. It  was therefore submitted,  that  the right of  revision which was

vested in the accused under Section 397, read with Section 401 of the

Code  of  Criminal  Procedure,  was  available  to  the  accused  under  the

unamended provisions of ‘the SEBI Act’, when adjudication for offences

under ‘the SEBI Act’  was vested with a Metropolitan Magistrate (or, a

Judicial Magistrate of the first class).  It was submitted, that since the

adjudicatory procedure for holding trials for offences under ‘the SEBI Act’

was vested with a Court of Session (under ‘the 2002 Amendment Act’),

and  thereafter,  with  the  Special  Court  (consequent  upon  ‘the  2014

Amendment  Act’),  the  accused who have  not  been tried  (prior  to  the

above  amendments),  stood  deprived  of  the  right  of  revision,  under

Section 397 read with Section 401 of the Code of Criminal Procedure.  It

was therefore contended, that the amendment of ‘forum’ of trial, in the

facts and circumstances of the present case, could not be treated as a

mere procedural amendment, but was liable to be considered as having

substantive adverse implication for the accused.  In order to support his

above  assertion,  learned  counsel  placed  reliance  on  Krishnan  v.

Krishnaveni,  (1997)  4  SCC  241,  and  invited  our  attention  to  the

following:

“7. It is seen that exercise of the revisional power by the High Court under Section 397 read with Section 401 is to call for the records of any inferior criminal court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court and to pass

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appropriate  orders.  The Court  of  Sessions and the Magistrates  are inferior  criminal  courts  to  the  High  Court  and  Courts  of  Judicial Magistrate  are  inferior  criminal  courts  to  the  Sessions  Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also  suo motu power  under  Section 401 to  exercise  the  revisional power  on  the  grounds  mentioned  therein,  i.e.,  to  examine  the correctness,  legality  or  propriety  of  any finding,  sentence or  order, recorded or passed and as to the regularity of any proceedings of such inferior court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done  in  accordance  with  the  recognised  rules  of  criminal jurisprudence  and  that  its  subordinate  courts  do  not  exceed  the jurisdiction or abuse the power vested in them under the Code or to prevent  abuse  of  the  process  of  the  inferior  criminal  courts  or  to prevent miscarriage of justice.”

 It  was  therefore  the  assertion  of  learned  counsel,  that  the  action  of

transfer of pending matters from the Court of Metropolitan Magistrate

(or,  Judicial  Magistrate  of  the  first  class),  to  the  Court  of  Session

(consequent  upon  ‘the  2002  Amendment  Act’)  and  thereafter,  to  the

Special Court (consequent upon ‘the 2014 Amendment Act’), was liable

to be treated as prospective, failing which the accused will be deprived of

the important right of revision vested in him.   

54. We  have  given  our  thoughtful  consideration  to  the  second

contention  of  Mr.  D.P.  Singh,  Advocate,  noticed  in  the  foregoing

paragraphs.  In view of the legal position, namely, that power of revision

to a superior court does not confer or create a corresponding right in the

litigant,  it  is not possible for us to accept the aforesaid contention of

learned counsel.  When the remedy of revision is considered as not a

right of an accused, at all, the absence of the remedy of revision cannot

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be considered as deprivation of a right.  In this behalf, reference may be

made to Pranab Kumar Mitra v. State of West Bengal, AIR 1959 SC 144,

wherein it was held:

“…..The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant,  but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of  criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. …..”.

The aforesaid determination also emerges from the following observations

recorded  in  paragraph  6  of  the  above  judgment,  which  is  extracted

hereunder:

“6. In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that  case.  The revisional  powers of  the High Court  vested in it  by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the courts, and the right to appeal, where one exists, cannot be denied in exercise of the discretionary  power  even  of  the  High  Court.  The  legislature  has, therefore, specifically provided, by Section 431 of the Code, the rules governing the right of substitution in case of death of an appellant, but  there  is  no  corresponding  provision in  Chapter  XXXII,  dealing with  the  question of  abatement  and the  right  of  substitution  in  a criminal revision.  We may assume that the legislature was aware of the decision of  the Bombay High Court,  referred to above, when it enacted Section 431 for  the first  time in the Code of  1882.  If  the legislature intended that an application in revision pending in a High Court, should be dealt with on the same footing as a pending appeal,

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it would have enacted accordingly. But in the absence of any such enactment, we may infer that the power of revision vested in the High Court under Chapter XXXII of the Code, was left untouched — to be exercised according to the exigencies of each case. The High Court is not  bound  to  entertain  an  application  in  revision,  or  having entertained one, to order substitution in every case. It is not bound the other way, namely, to treat a pending application in revision as having  abated  by  reason  of  the  fact  that  there  was  a  composite sentence  of  imprisonment  and  fine,  as  some  of  the  Single  Judge decisions placed before us, would seem to indicate. The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who  has  been  convicted  and  sentenced,  or  he  may  have  been  a complainant who may have been directed under Section 250 of the Code to pay compensation to an accused person upon his discharge or  acquittal.  Whether  it  was  an  accused  person  or  it  was  a complainant  who  has  moved  the  High  Court  in  its  revisional jurisdiction, if the High Court has issued a rule, that rule has to be heard and determined in accordance with law,  whether  or not  the petitioner  in  the  High  Court  is  alive  or  dead,  or  whether  he  is represented  in  court  by  a  legal  practitioner.  In  hearing  and determining cases under  Section 439 of  the Code,  the  High Court discharges its statutory function of supervising the administration of justice on the criminal  side.  Hence,  the considerations applying to abatement  of  an  appeal,  may  not  apply  to  the  case  of  revisional applications. In our opinion, therefore, the Bombay majority decision, in  the  absence  of  any  statutory  provisions  in  respect  of  criminal revisional cases, lays down the correct approach.”

Reference on the above issue, may also be made to Kamlesh Kumar v.

State  of  Jharkhand,  (2013)  15 SCC 460,  wherein  this  Court  held  as

under:

“41. This question proceeds on the assumption that there is a right of revision. A Constitution Bench of this Court in   Pranab Kumar Mitra   v. State of W.B.   set the “right” issue at rest several decades ago. It was held that the power to revise an order is a discretionary power which is to be exercised in aid of justice and the exercise of that power will depend on the facts and circumstances of a given case. It was held: (AIR p. 147, para 6) “6. … The revisional powers of the High Court vested in it by Section 439 of the Code read with Section 435, do not create any right in the litigant,  but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal

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jurisprudence,  and that  subordinate criminal  courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code.”

xxx xxx xxx 43. While the revisional power of a superior court actually enables it to correct a grave error, the existence of that power does not confer any corresponding right on a litigant. This is the reason why, in a given  case,  a  superior  court  may  decline  to  exercise  its  power  of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is felicitously stated that a revision is not a right but only a “procedural facility” available to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special Judge does not take away this procedural  facility  available  to  the  petitioners.  It  only  changes  the forum and as already held above,  the petitioners  have no right  to choose the forum in which to file an appeal or move a petition for revising an interlocutory order.”

55. For the reasons recorded hereinabove, we find no merit even in the

second  contention  advanced  by  Mr.  D.P.  Singh,  learned  counsel

representing the accused.

56. In view of the consideration recorded hereinabove, we are of the

view, that the ‘forum’ for trial earlier vested in the Court of Metropolitan

Magistrate (-or, Judicial Magistrate of the first class) was retrospectively

amended, inasmuch as, the ‘forum’ of trial after ‘the 2002 Amendment

Act’ was retrospectively changed to the Court of Session.  In this view of

the  matter,  the  trials  even in  respect  of  offences  allegedly  committed

before  29.10.2002  (-the  date  with  effect  from  which,  ‘the  2002

Amendment Act’  became operational),  whether in respect whereof trial

had or had not been initiated, would stand jurisdictionally vested in a

Court of Session.  And likewise, trials of offences under the SEBI Act,

consequent upon ‘the 2014 Amendment Act (which became operational,

with effect from 18.07.2013) would stand jurisdictionally transferred for

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trial  to a Special  Court,  irrespective of  whether the offence under the

SEBI Act was committed before 29.10.2002 and/or before 18.07.2013

(-the  date  with  effect  from which  ‘the  2014  Amendment  Act’  became

operational),  and irrespective of  the fact whether trial  had or had not

been  initiated.   Our  above  conclusion,  affirms  the  determination

recorded by the Delhi High Court in Mahender Singh v. High Court of

Delhi (Writ Petition (C) No.141 of 2007, decided on 11.01.2008), but for

the reasons recorded hereinabove.  The impugned judgment rendered by

the  High  Court  of  Bombay  in  M/s.  Classic  Credit  Ltd.  v.  State  of

Maharashtra  (Criminal  Application  No.1557  of  2007,  decided  on

16.01.2008), is liable to be set aside, and is accordingly hereby set aside.

57. The instant bunch of cases is disposed of in the above terms.

…….……………………………CJI. (Jagdish Singh Khehar)

…….………………………………J. (Arun Mishra)

Note: The  emphases  supplied  in  all  the  quotations  in  the  instant judgment, are ours.

New Delhi August 21, 2017.

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