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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 ..... BI ), which is a statutory body constituted under the Securities and Exchange Board of India Act, 1992 ( the Act ), has filed complaints under sections 24(1) and 27 of the Act. These complaints relate to the alleged offence committed by the petitioners, under the aforesaid provisions of the Act, prior to 29-10-2002. As per the said provisions prevalent at that time, the offences for which the petitioners are being prosecuted contained a maximum term of one year s imprisonment. The complaints filed are in the nature of summons cases and having regard to the aforesaid maximum imprisonment which could be given to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-1-2005, is that all the complaints filed after 29-10-2002, whether related to the offences committed before or after that date, are triable by the Court of Additional Sessions Judge. 5. These writ petitioners fall in the aforesaid category. They contend that since the offence with which they are charged is of the period prior to 29-10-2002, for which maximum punishment admittedly is one year, they have to be tried by the Magistrate irrespective as to when the complaint is filed. In fact, the writ petitioner in C.W.P. No. 17777 of 2006 had even filed an application before Ms. Asha Menon, Additional Sessions Judge, where 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise that prior to the amendment which took effect on 29-10-2002, the offence under section 24(1) was triable by a Magistrate. It is only after the amendment that the said offence is triable by a Court of Session. It is submitted that had the complaint been filed within the limitation prescribed, the complaint would have fructified into a trial by a Metropolitan Magistrate. It was also submitted that the jurisdiction conferred on a Magistrate could not be taken away as was held in the case of A.S. Impex Ltd. v. Delhi High Court [2003] VIII AD 189 by a Division Bench of this Court. It was also submitted that such transfer of the complaint from the Magistrate 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te First Class will try cases under the said section 138, by no stretch of imagination, could it mean that any superior Court to the Court of Metropolitan Magistrate would also have jurisdiction to try those cases. The Division Bench observed that while the non obstante clause in section 142 excluded the jurisdiction of Magistrates inferior to the Metropolitan Magistrate or the Judicial Magistrate, First Class, at the same time, it did not widen the scope of the provision so as to include in its ambit the jurisdiction of Additional Sessions Judges. The Court observed that the jurisdiction to try offences under section 138 of the Negotiable Instruments Act, 1881 had been 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 Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Impex Ltd. ( supra ), the administrative order passed by the Court in purported to exercise of its powers under article 227 of the Constitution were held to be an attempt on bypassing the special legislation which empowered Metropolitan Magistrates or Judicial Magistrates of the first-class to try cases. The second distinguishing feature is that while in the case of A.S. Impex Ltd. ( supra ), the administrative orders were the subject-matter of the challenge, in the present case there is no challenge to such orders. Therefore, the decision in A.S. Impex Ltd. ( supra ) is of no assistance to the petitioners." 8. We may point out at this stage that learned counsel for the petitioners had made 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 26(2) of the SEBI Act. It would all the same remain a summons trial." 9. We record our concurrence with the aforesaid view rendered by the Learned Single Judge, which is based on the principles of law laid down by the Apex Court. In this behalf, it will also be prudent to refer to another judgment of the Supreme Court in the case of Rajendra Kumar v. Kalyan [2000] 8 SCC 99. In paragraphs 21 and 22 thereof, the legal position was explained in an erudite language as under (pages 111 and 112) : "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 [196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forum of appeal does not amount to denial of right to appeal and is no manner violative of the Constitution. The accused in such complaints, if convicted, is given the right to appeal and has no vested right to appeal to a particular Court or class of Courts. If such a right had been taken together, there could have been some substance in the grievance raised. However, when the right to appeal remains and only forum of appeal changes, no such grievance can be raised. In Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto [1979] 1 SCC 92, the Supreme Court had dealt with this aspect in the following manner : "5. On the question as to where the appeal could be lodged we are clearly of the view that the forum was governed by the provisions of the Goa, Daman and Diu (Extension of Code of Civil Procedure, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edural law, for they relate merely to the modes in which the Courts fulfil their functions. It is true that under clause ( c ) of the proviso to section 4 of the Central Act 30 of 1965 [which corresponds to section 6( e ) of the General Clauses Act, 1897] it is provided that a remedy or legal proceeding in respect of a vested right like a right to an appeal may be instituted, continued or enforced as it this Act (meaning the repealing Act) had not been passed. But this provision merely saves the remedy or legal proceeding in respect of such vested right which it is open to the litigant to adopt notwithstanding the repeal but this provision has nothing to do with the forum where the remedy or legal proceeding has to be pursued. If the repealing Act provides new forum where the remedy or the legal proceeding in respect of such vested 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amad v. C. Abdul Kader [1977] KLT 840; and it was opined that a revision is not a right and is only a procedural facility afforded to a party, while appeal is a statutory right conferred on a party. It was further held that a revision is not a continuation of the suit, appeal or trial. It is only a step in aid for invoking the powers of superintendence by the Sessions Judge and the High Court for correcting irregularities, if any, in the judgments and orders of the subordinate Courts. In coming to this conclusion, the Kerala High Court in the said case, though it was a judgment of the Single Judge, followed its earlier judgment rendered by a Division Bench in Raman Pillay v. Dakshayni [1975] KLT 739. We consider that it is the correct interpretation of the nature of remedy provided under section 397 of the Cr.P.C. 15. Our reason for making these observations is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. Operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the Legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provision." (p. 674) 16. The Constitution Bench in no certain terms observed that the revisional powers of the High Court vested in it by the said provision 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 jurisdiction and that subordinate Criminal Courts do not exceed their 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 righ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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