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TMI Blog2008 (1) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused held guilty of the offence, these are triable by the Court of Magistrate. Thus, the complaints were filed before the Magistrate who had taken cognisance thereof. 2. The provisions of the Act were amended with effect from 29-10-2002. These very offences, because of the amendment, are now punishable with 10 years' imprisonment and, thus, triable by a Sessions Court. There is no dispute that insofar as substantive provision relating to the sentence is concerned, it has prospective operation and it applies to those offences committed after 29-10-2002. However, we are concerned with the procedural aspect and the question which arises for determination is as to whether the pending complaints would now be triable by the Court of Sessions. This issue has arisen in the following backdrop. 3. After the amendment in the SEBI Act, 1992, by the SEBI (Amendment) Act, 2002 ("Amendment Act"), as mentioned above, the Registrar (Admn./Judl.), High Court of Delhi addressed a letter dated 1-12-2004, to the District and Sessions Judge, Delhi, informing that the Chief Justice and Judges of this Court had been pleased to order that the SEBI cases be allocated to the Court of Ms. Asha Menon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e his case was transferred, requesting for sending the case back to the Court of Additional Chief Metropolitan Magistrate. This application is rejected vide order dated 5-10-2005, which has led the petitioner to file the present writ petition challenging the orders dated 1-12-2004 and 12-1-2005, passed by the Delhi High Court and consequential orders dated 4-12-2004 and 13-1-2005, passed by the District and Sessions Judge. The prayer is that they be declared null and void and non est so far as they operate for the offences committed before the Amendment Act and a mandamus be issued for transferring their case back to the Court of ACMM. 6. Before taking note of the rival contentions, we may mention that this very aspect came up for consideration before a learned Single Judge of this Court in the case of Panther Fincap & Management Services Ltd. v. Securities & Exchange Board of India [Crl. R.P. Nos. 24 to 31 of 2006]. In that case, the fact situation was identical, namely, complaint was filed in respect of offences allegedly committed between 24-3-1999 to 21-2-2000, i.e., before the Amendment Act, and complaint was filed on 28-5-2004, i.e., after the coming into force of the Amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate's Court to the Court of Session also amounted to taking away available remedies of appeal and revision." 7. In the judgment dated 5-9-2006, rendered by the learned Single Judge (Badar Durrez Ahmed, J.), the aforesaid contention was repelled and held to be unsustainable. The detailed reasons in support of the conclusion that the Court of Sessions was the appropriate Court having requisite jurisdiction to entertain the complaint are contained in paragraphs 15 and 16 of the judgment. Since, we are in respectful agreement with the view taken by the learned Single Judge in the said judgment, we deem it proper to reproduce the entire discussion on this aspect, verbatim : "15. Since the petitioners have strongly relied upon the decision of a Division Bench of this Court in the case of A.S. Impex Ltd. ( supra), I shall take up discussion with regard to that case. The facts were that the High Court, in exercise of its powers on the administrative side, transferred all the cases under section 138 of the Negotiable Instruments Act, 1881, which were pending as on December 31, 2001, from the Courts of Metropolitan Magistrates to the Courts of Additional Sessions Judges. The said adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een specifically conferred on the Metropolitan Magistrates or Judicial Magistrates, First Class and that such jurisdiction could not be taken away by invoking the provisions of article 227 of the Constitution. The Division Bench categorically held : 'The High Court in its plenary jurisdiction cannot bypass the special legislation which empowers the Metropolitan Magistrate or Judicial Magistrate, First Class to try the cases.' 16. Although learned counsel for the petitioners has relied heavily upon the Division Bench decision in A.S. Impex Ltd. (supra), the foregoing discussion indicates that the same is clearly distinguishable and would be inapplicable to the situation which presents itself in the present case. In A.S. Impex Ltd. (supra), there was a pure administrative action on the part of the High Court in purported exercise of its powers under article 227 of the Constitution of India. The administrative orders were not backed by any legislative provisions. Secondly, the administrative orders were the subject-matter of challenge and they were quashed by the Division Bench holding that the High Court in its plenary jurisdiction cannot bypass the special legislation which empowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fervent plea that the aforesaid judgment would not be of any consequence as the learned Judge was influenced by the fact that administrative orders were not the subject-matter of challenge in the said revision petition, whereas in the present case, these orders are specifically challenged. This argument, however, would not help the petitioners. We say so for the following two reasons : (i)the Court specifically held that the administrative orders were backed by legislative provisions, which was not the position in A.S. Impex Ltd.'s case (supra). The other reason given by the learned Single Judge that these administrative orders were not the subject- matter of challenge in the said writ petition was the additional reason and even if that is ignored, it is sufficient to rest the conclusion on the basis of the first reason given by the Court in the said case. (ii)the Court in that case also interpreted the effect of the amendment carried out in section 26 of the Act. Section 26(2) of the Act, prior to the amendment, provided that no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate, First Class shall try any offence punishable under the said Act. Post amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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.' 18. The amendment that has been brought about in section 26 of the SEBI Act is only an amendment relating to the forum and, therefore, in view of clause (ii) mentioned in the aforesaid extract from the Supreme Court decision in Hitendera Vishnu Thakur ( supra), the amendment would be only of a procedural nature. Since, the amendment merely affects procedure and there is nothing in the language used to enable us to take a contrary view, it must be presumed to have retrospective application. 19. A reference to another decision of the Supreme Court would also be apposite. In New India Insurance Co. Ltd. v. Smt. Shanti Misra [1975] 2 SCC 840 held as under (page 844) : 5. On the plain language of sections 110A and 110F 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 propositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; Attorney General v. Vernazza [I960] 3 All ER 97. In Halsbury's Laws of England (4th edition, vol. 44, paragraph 925, page 574) upon reference to Wright v. Hale [1960] 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure, 1908 and Arbitration Act, 1940) Act, 1965 (Central Act XXX of 1965) read with the provisions of the Goa, Daman and Diu Civil Court Act, 1965 (Goa Act XVI of 1965) both of which came into force simultaneously on June 15, 1966 and the appeal was required to be filed in the Judicial Commissioner's Court. Under the Central Act XXX of 1965 with effect from June 15, 1966, the provisions of the Indian Civil Procedure Code were extended to the Union Territories of Goa, Daman and Diu and the corresponding provisions of the Portuguese Code were repealed while under the Goa Act XVI of 1965 the instant suit which was pending before the Comarca Court at Margao was continued and decreed by corresponding Court of the Senior Civil Judge, who ultimately decreed it on March 8, 1968. Under the Indian Civil Procedure Code read with section 22 of the Goa Act since the property involved in the suit was of the value exceeding Rs. 10,000 the appeal clearly lay to the Judicial Commissioner's Court. The contention that since the right of appeal had been conferred by Portuguese Code, the forum where it could be lodged was also governed by the Portuguese Code cannot be accepted. It is no doubt well-set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right can be pursued after the repeal, the forum must be as provided in the repealing Act. We may point out that such a view of section 6(3) of the General Clauses Act, 1897 has been taken by the Rajasthan High Court in the case of Purshotam Singh v. Narain Singh AIR 1955 Raj. 203. It is, thus, clear that under the repealing enactment (Act XXX of 1965) read with Goa Enactment (Act XVI of 1965) the appeal lay to the Judicial Commissioner's Court and the same was, accordingly, filed in the proper Court." (pp. 96-97) 12. To the same effect is the judgment of the Apex Court in New India Insurance Co. Ltd. v. Smt. Shanti Misra [1975] 2 SCC 840, relevant portion whereof is already extracted above while reproducing the discussion of the learned Single Judge in the case of Panther Fincap Management Services Ltd. (supra). 13. Reliance by the petitioners on the judgment of the Supreme Court in A.R. Antulay's case (supra) may not be of any help. Going through the said judgment, it would be clear that in the said case, the Supreme Court was considering the effect of its earlier judgment dated December 16, 1984, which resulted in the transfer of cases pending before the Special Court for tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the Constitution Bench judgment of the Apex Court in Pranab Kumar Mitra v. State of West Bengal AIR 1959 SC 144, where the same provision, namely, revisional power of the High Court contained in section 439 of the Code of Criminal Procedure, 1882 came up for interpretation. This view is reiterated by the Supreme Court recently in Shiv Shakti Co-op. Housing Society v. Swaraj Developers [2003] 6 SCC 659. After taking note of the earlier precedents not only of the Supreme Court but English Courts, the Court (speaking through Hon'ble Mr. Justice Arijit Pasayat) dealt with the nature and scope of section 115 of the Cr.P.C. (which deals with revisionary powers of the High Court in civil matters) and held as follows : "32. A plain reading of section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction or abuse their powers vested in them by the Court. On the other hand, it held a right of appeal is a statutory right which has got to be recognised by the Courts. For this reason, the Court opined that whereas the Legislature has specifically provided the rules governing the right of substitution in case of death of an appellant by section 31 of the Code of 1882 (which was the provision for appeal), no such corresponding provision dealing with the question of abetment or and the right of substitution was made in a criminal revision. 17. Insofar as the observations of the Supreme Court about the right of revision contained in A.R. Antulay's case (supra) are concerned, such observations are made having regard to a particular provision contained in section 9 of the Criminal Law (Amendment) Act, 1952, which gives statutory right of revision in contradiction to section 397 of the Cr.P.C., which does not provide any such statutory right. 18. Last but not the least, even if one were to go by the unamended provision, it merely required that no Court inferior to that of a Metropolitan Magistrate of the First Class shall try any offence punishable under the Act. That rule is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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