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TMI Blog2017 (8) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered 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’). 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 trial to a Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange 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 wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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 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 Nan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission 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 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 x ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), 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'. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oured 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." (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 notwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf 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 Magistrate, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal 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 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 aros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide for the establishment of a Board to protect the interests of investors in securities and to promote the development 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, et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ₹ 25,000. This support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encement 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 amending provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, 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, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 9. On the Revenue's application, the Appellate Tribunal stated the consolidated case to the Orissa High Court under Section 256(1) of the Act and referred the following question of law: Whether, on the facts and circumstances of the case, and on a true interpretation of Section 274, as amended by the Taxation Laws (Amendment) Act, 1970, the Inspecting Assistant Commissioner to whom the case was referred prior to April 1, 1971, had jurisdiction to impose penalty? xxx xxx xxx 13. The learned Judges of the Orissa High Court agreed with the appellate order of the Income Tax Appellate Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y) 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 Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Counci l 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-Genera l 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 criteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 'the SEBI Act', extended to one year of sentence and fine, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion is of the change of 'forum', it ceases to be a question of procedure only, with reference to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicate 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 be affected. 'The 2014 Amendment Act' which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion, 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 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed 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 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uage 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. 48. Whilst dealing with the first contention advanced by Mr. D.P. Singh, Advocate, it is imperative to deal with some of the salient features, which need be kept in mind. Section 26(b) of the Code of Criminal Procedure, deals with offences under legislative enactments other than the Indian Penal Code. This is how Section 26(b) contrasts with Section 26(a) of the Code. Section 26 of the Code of Criminal Procedure is reproduced below: "26. Courts by which offences are triable. Subject to the other provisions of this Code,- (a) any offence under the Indian Penal Code (45 of 1860), may be tried by- (i) the High Court, or (ii) the Court of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. In such cases, offences (-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be leveled at all, it can be leveled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say :- I am not to blame as I am acting under the Act. It is clear that if the argument were to be accepted, article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the "insidious discrimination complained of is incorporated in the Act itself", it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are restricted and special provisions are made to deal with refractory accused and also for cases which are transferred from one Special Court to another. The Court is expressly empowered to convict a person of an offence with which he was not charged if it transpires from the evidence adduced at the time of trial that such offence was committed by him, and it is immaterial that the offence is not a minor offence. The right of revision to the High Court has been taken away entirely, though appeals have been allowed in all cases both at the instance of the accused as well as of the State and they lie both on questions of fact and law. xxx xxx xxx 68. The argument that changes in procedural law are not material and cannot be said to deny equality before the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental rights referred to in Arts. 20 to 22 should be safeguarded is, on the face of it, unsound. The right to equality postulated by Art. 14 is as much a fundamental right as any other fundamental right dealt with in part III of the Constitution. Procedural law may and does confer very valuable rights on a person, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired 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'), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight 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, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f criminal 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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