Amendment changing forum of trial of certain offences – Applies
retrospectively – would therefore govern cases instituted but pending as on date
of amendment – Case in which cognizance is not taken – Cannot be said to
instituted – As such if in case involving offences covered by amendment no
charge-sheet has been filed till date of amendment – It cannot be said to be
pending as on date of amendment – Would therefore be triable by amended
forum. Cognizance – Date on which taken – Is deemed to be date of institution
of case.
Applying the test judicially recognized in the above pronouncements to the case at
hand, we have no hesitation in holding that no case was pending before the Magistrate
against the appellant as on the date the Amendment Act came into force. That being so, the
Magistrate on receipt of a charge-sheet which was tantamount to institution of a case against
the appellant was duty bound to commit the case to the Sessions as three of the offences with
which he was charged were triable only by the Court of Sessions. The case having been
instituted after the Amendment Act had taken effect, there was no need to look for any
provision in the Amendment Act for determining whether the amendment was applicable
even to pending matters as on the date of the amendment no case had been instituted against
the appellant nor was it pending before any Court to necessitate a search for any such
provision in the Amendment Act. The Sessions Judge as also the High Court were, in that
view, perfectly justified in holding that the order of committal passed by the Magistrate was a
legally valid order and the appellant could be tried only by the Court of Sessions to which the
case stood committed.
The Court observed: “The doctrine of “prospective overruling” was initially made
applicable to the matters arising under the Constitution but we understand the same has
since been made applicable to the matters arising under the statutes as well. Under the
doctrine of “prospective overruling” the law declared by the Court applies to the cases arising
in future only and its applicability to the cases which have attained finality is saved because
the repeal would otherwise work hardship to those who had trusted to its existence.
Invocation of doctrine of “prospective overruling” is left to the discretion of the court to
mould with the justice of the cause or the matter before the court.”
In Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa (2009)
4 SCC 299: (AIR 2009 SC (Supp) 1857 : 2009 AIR SCW 2566), this Court relied upon the
observations made by Justice Benjamin N. Cardozo in his famous compilation of lectures The
Nature of Judicial Process – that “ in the vast majority of cases, a judgment would be
retrospective. It is only where the hardships are too great that retrospective operation is
withheld.” The present case, in our opinion, is one in which we need to make it clear that the
overruling of the Full Bench decision of the Madhya Pradesh High Court will not affect cases
that have already been tried or are at an advanced stage before the Magistrates in terms of
the said decision. With the above observations, this appeal fails and is hereby dismissed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 353 OF 2013
(Arising out of S.L.P. (Crl.) No.5663 of 2011
Ramesh Kumar Soni …Appellant
Versus
State of Madhya Pradesh …Respondent
Dated;February 26, 2013
Citation;AIR 2013 SC 1896
T.S. THAKUR, J.
1. Leave granted.
2. The short question that falls for determination in this appeal is
whether the appellant could be tried by the Judicial Magistrate, First
Class, for the offences punishable under Sections 408, 420, 467, 468 and
471 of the IPC notwithstanding the fact that the First Schedule of the Code
of Criminal Procedure, 1973 as amended by Code of Criminal Procedure
(Madhya Pradesh Amendment) Act of 2007, made offences punishable under
Sections 467, 468 and 471 of the Penal Code triable only by the Court of
Sessions. The Trial Court of 9th Additional Sessions Judge, Jabalpur has
answered that question in the negative and held that after the amendment
the appellant could be tried only by the Court of Sessions. That view has
been affirmed by the High Court of Madhya Pradesh at Jabalpur in a criminal
revision petition filed by the appellant against the order passed by the
Trial Court. The factual matrix in which the controversy arises may be
summarised as under:
3. Crime No.129 of 2007 for commission of offences punishable under
Sections 408, 420, 467, 468 and 471 of the IPC was registered against the
appellant on 18th May, 2007, at Bheraghat Police Station. On the date of
the registration of the case the offences in question were triable by a
Magistrate of First Class in terms of the First Schedule of Code of
Criminal Procedure, 1973. That position underwent a change on account of
the Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007
introduced by Madhya Pradesh Act 2 of 2008 which amended the First Schedule
of the 1973 Code and among others made offences under Sections 467, 468 and
471 of the IPC triable by the Court of Sessions instead of a Magistrate of
First Class. The amendment received the assent of the President on 14th
February, 2008 and was published in Madhya Pradesh Gazette (Extraordinary)
on 22nd February, 2008. Consequent upon the amendment aforementioned, the
Judicial Magistrate, First Class appears to have committed to the Sessions
Court all cases involving commission of offences under the above
provisions. In one such case the Sessions Judge, Jabalpur, made a
reference to the High Court on the following two distinct questions of law:
1. Whether the recent amendment dated 22nd February, 2008 in the
Schedule-I of the Cr.P.C. is to be applied retrospectively?
2. Consequently, whether the cases pending before the Magistrate
First Class, in which evidence partly or wholly has been recorded, and
now have been committed to this Court are to be tried de novo by the
Court of Sessions or should be remanded back to the Magistrate First
Class for further trial?
4. A Full Bench of the High Court of Madhya Pradesh in Re: Amendment of
First Schedule of Criminal Procedure Code by Criminal Procedure Code (M. P.
Amendment) Act, 2007 2008 (3) MPLJ 311, answered the reference and held
that all cases pending before the Court of Judicial Magistrate First Class
as on 22nd February, 2008 remained unaffected by the amendment and were
triable by the Judicial Magistrate First Class as the Amendment Act did not
contain a clear indication that such cases also have to be made over to the
Court of Sessions. The Court further held that all such cases as were
pending before the Judicial Magistrate First Class and had been committed
to the Sessions Court shall be sent back to the Judicial Magistrate First
Class in accordance with law. The reference was answered accordingly.
5. Relying upon the decision of the Full Bench the appellant filed an
application before the trial Court seeking a similar direction for
remission of the case for trial by a Judicial Magistrate. The appellant
argued on the authority of the above decision that although the police had
not filed a charge-sheet against the appellant and the investigation in the
case was pending as on the date the amendment came into force, the
appellant had acquired the right of trial by a forum specified in Schedule
I of the 1973 Code. Any amendment to the said provision shifting the forum
of trial to the Court of Sessions was not attracted to the appellant’s case
thereby rendering the committal of the case to the Sessions Court and the
proposed trial of the appellant before the Sessions Court illegal. The
trial Court, as mentioned earlier, repelled that contention and held that
since no charge-sheet had been filed before the Magistrate as on the date
the amendment came into force, the case was exclusively triable by the
Sessions Court. The High Court has affirmed that view and dismissed the
revision petition filed by the appellant, hence the present appeal.
6. The Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007
is in the following words:
“An Act further to amend the Code of Criminal Procedure, 1973 in
its application to the State of Madhya Pradesh.
Be it enacted by the Madhya Pradesh Legislature in the
Fifty-eighth Year of the Republic of India as follows:
1. Short title. – (1) This Act may be called the Code of
Criminal Procedure (Madhya Pradesh Amendment) Act, 2007.
2. Amendment of Central Act No.2 of 1974 in its application to
the State of Madhya Pradesh – The Code of Criminal Procedure,
1973 (No. 2 of 1974) (hereinafter referred to as the
Principal Act), shall in its application to the State of
Madhya Pradesh, be amended in the manner hereinafter
provided.
3. Amendment of Section 167 - ......
xxxx xxx xxx
4. Amendment of the First Schedule – In the First Schedule to
the Principal Act, under the heading “I-Offences under the
Indian Penal Code” in column 6 against section 317, 318, 326,
363, 363A, 365, 377, 392, 393, 394, 409, 435, 466, 467, 468,
471, 472, 473, 475, 476, 477 and 477A, for the words
“Magistrate of First Class” wherever they occur, the words
“Court of Sessions” shall be substituted.”
7. The First Schedule to the Criminal Procedure Code 1973 classifies
offences under the IPC for purposes of determining whether or not a
particular offence is cognizable or non-cognizable and bailable or non-
bailable. Column 6 of the First Schedule indicates the Court by which the
offence in question is triable. The Madhya Pradesh Amendment extracted
above has shifted the forum of trial from the Court of a Magistrate of
First Class to the Court of Sessions. The question is whether the said
amendment is prospective and will be applicable only to offences committed
after the date the amendment was notified or would govern cases that were
pending on the date of the amendment or may have been filed after the same
had become operative. The Full Bench has taken the view that since there is
no specific provision contained in the Amendment Act making the amendment
applicable to pending cases, the same would not apply to cases that were
already filed before the Magistrate. This implies that if a case had not
been filed upto the date the Amendment Act came into force, it would be
governed by the Amended Code and hence be triable only by the Sessions
Court. The Code of Criminal Procedure does not, however, provide any
definition of institution of a case. It is, however, trite that a case
must be deemed to be instituted only when the Court competent to take
cognizance of the offence alleged therein does so. The cognizance can, in
turn, be taken by a Magistrate on a complaint of facts filed before him
which constitutes such an offence. It may also be taken if a police report
is filed before the Magistrate in writing of such facts as would constitute
an offence. The Magistrate may also take cognizance of an offence on the
basis of his knowledge or suspicion upon receipt of the information from
any person other than a police officer. In the case of the Sessions Court,
such cognizance is taken on commitment to it by a Magistrate duly empowered
in that behalf. All this implies that the case is instituted in the
Magistrate’s Court when the Magistrate takes cognizance of an offence, in
which event the case is one instituted on a complaint or a police report.
The decision of this Court in Jamuna Singh and Ors. v. Bahdai Shah AIR 1964
SC 1541, clearly explains the legal position in this regard. To the same
effect is the decision of this Court in Devrapally Lakshminarayana Reddy
and Ors. v. Narayana Reddy and Ors. (1976) 3 SCC 252 where this Court held
that a case can be said to be instituted in a Court only when the Court
takes cognizance of the offence alleged therein and that cognizance can be
taken in the manner set out in clauses (a) to (c) of Section 190(1) of the
Cr.P.C. We may also refer to the decision of this Court in Kamlapati
Trivedi v. State of West Bengal (1980) 2 SCC 91 where this Court
interpreted the provisions of Section 190 Cr.P.C. and reiterated the legal
position set out in the earlier decisions.
8. Applying the test judicially recognized in the above pronouncements
to the case at hand, we have no hesitation in holding that no case was
pending before the Magistrate against the appellant as on the date the
Amendment Act came into force. That being so, the Magistrate on receipt of
a charge-sheet which was tantamount to institution of a case against the
appellant was duty bound to commit the case to the Sessions as three of the
offences with which he was charged were triable only by the Court of
Sessions. The case having been instituted after the Amendment Act had taken
effect, there was no need to look for any provision in the Amendment Act
for determining whether the amendment was applicable even to pending
matters as on the date of the amendment no case had been instituted against
the appellant nor was it pending before any Court to necessitate a search
for any such provision in the Amendment Act. The Sessions Judge as also
the High Court were, in that view, perfectly justified in holding that the
order of committal passed by the Magistrate was a legally valid order and
the appellant could be tried only by the Court of Sessions to which the
case stood committed.
9. Having said so, we may now examine the issue from a slightly
different angle. The question whether any law relating to forum of trial is
procedural or substantive in nature has been the subject matter of several
pronouncements of this Court in the past. We may refer to some of these
decisions, no matter briefly. In New India Insurance Company Ltd. v. Smt.
Shanti Misra, Adult (1975) 2 SCC 840, this Court was dealing with the claim
of payment of compensation under the Motor Vehicles Act. The victim of the
accident had passed away because of the vehicular accident before the
constitution of the Claims Tribunal under the Motor Vehicles Act, 1939, as
amended. The legal heirs of the deceased filed a claim petition for payment
of compensation before the Tribunal after the Tribunal was established. The
question that arose was whether the claim petition was maintainable having
regard to the fact that the cause of action had arisen prior to the change
of the forum for trial of a claim for payment of compensation. This Court
held that the change of law operates retrospectively even if the cause of
action or right of action had accrued prior to the change of forum. The
claimant shall, therefore, have to approach the forum as per the amended
law. The claimant, observed this Court, had a “vested right of action” but
not a “vested right of forum”. It also held that unless by express words
the new forum is available only to causes of action arising after the
creation of the forum, the general rule is to make it retrospective. The
following passages are in this regard apposite:
“5. On the plain language of Sections 110-A and 110-F there
should be no difficulty in taking the view that the change in
law was merely a change of forum i.e. a change of adjectival or
procedural law and not of substantive law. It is a well-
established proposition that such a change of law operates
retrospectively and the person has to go to the new forum even
if his cause of action or right of action accrued prior to the
change of forum. He will have a vested right of action but not a
vested right of forum. If by express words the new forum is made
available only to causes of action arising after the creation of
the forum, then the retrospective operation of the law is taken
away. Otherwise the general rule is to make it retrospective.
The expressions “arising out of an accident” occurring in sub-
section (1) and “over the area in which the accident occurred”,
mentioned in sub-section (2) clearly show that the change of
forum was meant to be operative retrospectively irrespective of
the fact as to when the accident occurred. To that extent there
was no difficulty in giving the answer in a simple way. But the
provision of limitation of 60 days contained in sub-section (3)
created an obstacle in the straight application of the well-
established principle of law. If the accident had occurred
within 60 days prior to the constitution of the tribunal then
the bar of limitation provided in sub-section (3) was not an
impediment. An application to the tribunal could be said to be
the only remedy. If such an application, due to one reason or
the other, could not be made within 60 days then the tribunal
had the power to condone the delay under the proviso. But if the
accident occurred more than 60 days before the constitution of
the tribunal then the bar of limitation provided in sub-section
(3) of Section 110-A on its face was attracted. This difficulty
of limitation led most of the High Courts to fall back upon the
proviso and say that such a case will be a fit one where the
tribunal would be able to condone the delay under the proviso to
sub-section (3), and led others to say that the tribunal will
have no jurisdiction to entertain such an application and the
remedy of going to the civil court in such a situation was not
barred under Section 110-F of the Act. While taking the latter
view the High Court failed to notice that primarily the law
engrafted in Sections 110-A and 110-F was a law relating to the
change of forum.
6. In our opinion in view of the clear and unambiguous
language of Sections 110-A and 110-F it is not reasonable and
proper to allow the law of change of forum give way to the bar
of limitation provided in sub-section (3) of Section 110-A. It
must be vice versa. The change of the procedural law of forum
must be given effect to. The underlying principle of the change
of law brought about by the amendment in the year 1956 was to
enable the claimants to have a cheap remedy of approaching the
claims tribunal on payment of a nominal court fee whereas a
large amount of ad valorem court fee was required to be paid in
civil court.”
10. In Hitendra Vishnu Thakur and Ors. etc. ect. v. State of Maharashtra
and Ors. (1994) 4 SCC 602, one of the questions which this Court was
examining was whether clause (bb) of Section 20(4) of Terrorist and
Disruptive Activities (Prevention) Act, 1987 introduced by an Amendment Act
governing Section 167(2) of the Cr.P.C. in relation to TADA matters was in
the realm of procedural law and if so, whether the same would be applicable
to pending cases. Answering the question in the affirmative this Court
speaking through A.S. Anand, J. (as His Lordship then was), held that
Amendment Act 43 of 1993 was retrospective in operation and that clauses
(b) and (bb) of sub-section (4) of Section 20 of TADA apply to the cases
which were pending investigation on the date when the amendment came into
force. The Court summed up the legal position with regard to the
procedural law being retrospective in its operation and the right of a
litigant to claim that he be tried by a particular Court, in the following
words:
“26. xxx xxx
(i) A statute which affects substantive rights is presumed
to be prospective in operation unless made retrospective, either
expressly or by necessary intendment, whereas a statute which
merely affects procedure, unless such a construction is
textually impossible, is presumed to be retrospective in its
application, should not be given an extended meaning and should
be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in
nature, whereas law relating to right of action and right of
appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law
but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create new
disabilities or obligations or to impose new duties in respect
of transactions already accomplished.
(v) A statute which not only changes the procedure but also
creates new rights and liabilities shall be construed to be
prospective in operation, unless otherwise provided, either
expressly or by necessary implication.”
11. We may also refer to the decision of this Court in Sudhir G. Angur
and Ors. v. M. Sanjeev and Ors. (2006) 1 SCC 141 where a three-Judge Bench
of this Court approved the decision of the Bombay High Court in Shiv
Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass and Ors. (1952) 54 Bom LR
330 and observed:
“12....It has been held that a Court is bound to take notice of
the change in the law and is bound to administer the law as it
was when the suit came up for hearing. It has been held that if
a Court has jurisdiction to try the suit, when it comes on for
disposal, it then cannot refuse to assume jurisdiction by reason
of the fact that it had no jurisdiction to entertain it at the
date when it was instituted. We are in complete agreement with
these observations...”
(emphasis supplied)
12. In Shiv Bhagwan Moti Ram Saraoji’s case (supra) the Bombay High Court
has held procedural laws to be in force unless the legislatures expressly
provide to the contrary. The Court observed:
“...Now, I think it may be stated as a general principle
that no party has a vested right to a particular proceeding or
to a particular forum, and it is also well settled that all
procedural laws are retrospective unless the Legislature
expressly states to the contrary. Therefore, procedural laws in
force must be applied at the date when a suit or proceeding
comes on for trial or disposal...”
(emphasis supplied)
13. The amendment to the Criminal Procedure Code in the instant case has
the effect of shifting the forum of trial of the accused from the Court of
Magistrate First Class to the Court of Sessions. Apart from the fact that
as on the date the amendment came into force no case had been instituted
against the appellant nor the Magistrate had taken cognizance against the
appellant, any amendment shifting the forum of the trial had to be on
principle retrospective in nature in the absence of any indication in the
Amendment Act to the contrary. The appellant could not claim a vested
right of forum for his trial for no such right is recognised. The High
Court was, in that view of the matter, justified in interfering with the
order passed by the Trial Court.
14. The questions formulated by the Full Bench of the High Court were
answered in the negative holding that all cases pending in the Court of
Judicial Magistrate First Class as on 22nd February, 2008 when the
amendment to the First Schedule to the Cr.P.C. became operative, will
remain unaffected by the said amendment and such matters as were, in the
meanwhile committed to the Court of Sessions, will be sent back to the
Judicial Magistrate First Class for trial in accordance with law. In
coming to that conclusion the Full Bench placed reliance upon three
decisions of this Court in Manujendra Dutt. v. Purnedu Prosad Roy Chowdhury
& Ors. AIR 1967 SC 1419, Commissioner of Income-tax, Bangalore v. Smt. R.
Sharadamma (1996) 8 SCC 388 and R. Kapilanath(Dead) through L.R. v. Krishna
(2003) 1 SCC 444. The ratio of the above decisions, in our opinion, was
not directly applicable to the fact situation before the Full Bench. The
Full Bench of the High Court was concerned with cases where evidence had
been wholly or partly recorded before the Judicial Magistrate First Class
when the same were committed to the Court of Sessions pursuant to the
amendment to the Code of Criminal Procedure. The decisions upon which the
High Court placed reliance did not, however, deal with those kind of fact
situations. In Manujendra Dutt’s case (supra) the proceedings in the Court
in which the suit was instituted had concluded. At any rate, no vested
right could be claimed for a particular forum for litigation. The decisions
of this Court referred to by us earlier settle the legal position which
bears no repetition. It is also noteworthy that the decision in Manujendra
Dutt’s case (supra) was subsequently overruled by a seven-Judge Bench of
this Court in V. Dhanapal Chettiar v. Yesodai Ammal (1979) 4 SCC 214
though on a different legal point.
15. So also the decision of this Court in Smt. R. Sharadamma’s case
(supra) relied upon by the Full Bench was distinguishable on facts. The
question there related to a liability incurred under a repealed enactment.
Proceedings in the forum in which the case was instituted had concluded and
the matter had been referred to Inspecting Assistant Commissioner before
the dispute regarding jurisdiction arose.
16. The decision of this Court in R. Kapilanath’s case (supra), relied
upon by the Full Bench was also distinguishable since that was a case where
the eviction proceedings before the Court of Munsif under the Karnataka
Rent Control Act, 1961 had concluded when the Karnataka Rent Control
(Amendment) Act, 1994 came into force. By that amendment, the Court of
Munsif was deprived of jurisdiction in such cases. This Court held that the
change of forum did not affect pending proceedings. This Court further held
that the challenge to the competence of the forum was raised for the first
time, that too as an additional ground before this Court and that, for
other factors, the Court was inclined to uphold the jurisdiction of the
Court of Munsif to entertain and adjudicate upon the eviction matter. The
fact situation was thus different in this case.
17. Even otherwise the Full Bench failed to notice the law declared by
this Court in a series of pronouncements on the subject to which we may
briefly refer at this stage. In Nani Gopal Mitra v. State of Bihar AIR 1970
SC 1636, this Court declared that amendments relating to procedure operated
retrospectively subject to the exception that whatever be the procedure
which was correctly adopted and proceedings concluded under the old law the
same cannot be reopened for the purpose of applying the new procedure. In
that case the trial of the appellant had been taken up by Special Judge,
Santhal Paraganas when Section 5(3) of the Prevention of Corruption Act,
1947 was still operative. The appellant was convicted by the Special Judge
before the Amendment Act repealing Section 5(3) was promulgated. This Court
held that the conviction pronounced by the Special Judge could not be
termed illegal just because there was an amendment to the procedural law on
18th December 1964. The following passage is, in this regard, apposite:
“…. It is therefore clear that as a general rule the amended law
relating to procedure operates retrospectively. But there is
another equally important principle, viz. that a statute should
not be so construed as to create new disabilities or obligations
or impose new duties in respect of transactions which were
complete at the time the amending Act came into force--(See In
re a Debtor, and In re Vernazza. The same principle is embodied
in Section 6 of the General Clauses Act which is to the
following effect:
xx xx xx (Section 6 is quoted) xx xx xx
…. The effect of the application of this principle is that
pending cases although instituted under the old Act but still
pending are governed by the new procedure under the amended law,
but whatever procedure was correctly adopted and concluded under
the old law cannot be opened again for the purpose of applying
the new procedure. In the present case, the trial of the
appellant was taken up by the Special Judge, Santhal Parganas
when Section 5(3) of the Act was still operative. The conviction
of the appellant was pronounced on March 31, 1962 by the Special
Judge, Santhal Parganus long before the amending Act was
promulgated. It is not hence possible to accept the argument of
the appellant that the conviction pronounced by the Special
Judge, Santhal Parganas has become illegal or in any way
defective in law because of the amendment to procedural law made
on December 18, 1964. In our opinion, the High Court was right
in invoking the presumption under Section 5(3) of the Act even
though it was repealed on December 18, 1964 by the amending Act.
We accordingly reject the argument of the appellant on this
aspect of the case.”
(emphasis supplied)
18. Reference may also be made upon the decision of this Court in Anant
Gopal Sheorey v. State of Bombay AIR 1958 SC 915 where the legal position
was stated in the following words:
“4. The question that arises for decision is whether to a
pending prosecution the provisions of the amended Code have
become applicable. There is no controversy on the general
principles applicable to the case. No person has a vested right
in any course of procedure. He has only the right of prosecution
or defence in the manner prescribed for the time being by or for
the Court in which the case is pending and if by an Act of
Parliament the mode of procedure is altered he has no other
right than to proceed according to the altered mode. See Maxwell
on Interpretation of Statutes on p. 225; The Colonial Sugar
Refining Co. Ltd. v. Irving (1905) A.C. 369, 372). In other
words a change in the law of procedure operates retrospectively
and unlike the law relating to vested right is not only
prospective.”
19. The upshot of the above discussion is that the view taken by the Full
Bench holding the amended provision to be applicable to pending cases is
not correct on principle. The decision rendered by the Full Bench would,
therefore, stand overruled but only prospectively. We say so because the
trial of the cases that were sent back from Sessions Court to the Court of
Magistrate First Class under the orders of the Full Bench may also have
been concluded or may be at an advanced stage. Any change of forum at this
stage in such cases would cause unnecessary and avoidable hardship to the
accused in those cases if they were to be committed to the Sessions for
trial in the light of the amendment and the view expressed by us.
20. The principle of prospective overruling has been invoked by this
Court, no matter sparingly, to avoid unnecessary hardship and anomalies.
That doctrine was first invoked by this Court in I.C. Golak Nath and Ors.
v. State of Punjab and Ors. AIR 1967 SC 1643 followed by the decision of
this Court in Ashok Kumar Gupta and Anr. v. State of U.P. and Ors. (1997) 5
SCC 201.
21. In Baburam v. C.C. Jacob and Ors. (1999) 3 SCC 362, this Court
invoked and adopted a device for avoiding reopening of settled issues,
multiplicity of proceedings and avoidable litigation. The Court said:
“5. The prospective declaration of law is a devise innovated by
the apex court to avoid reopening of settled issues and to
prevent multiplicity of proceedings. It is also a devise adopted
to avoid uncertainty and avoidable litigation. By the very
object of prospective declaration of law, it is deemed that all
actions taken contrary to the declaration of law prior to its
date of declaration are validated. This is done in the larger
public interest. Therefore, the subordinate forums which are
legally bound to apply the declaration of law made by this Court
are also duty-bound to apply such dictum to cases which would
arise in future only. In matters where decisions opposed to the
said principle have been taken prior to such declaration of law
cannot be interfered with on the basis of such declaration of
law…”
(emphasis supplied)
22. To the same effect is the decision of this Court in Harish Dhingra v.
State of Haryana & Ors. (2001) 9 SCC 550 where this Court observed:
“7. Prospective declaration of law is a device innovated by this
Court to avoid reopening of settled issues and to prevent
multiplicity of proceedings. It is also a device adopted to avoid
uncertainty and avoidable litigation. By the very object of
prospective declaration of law it is deemed that all actions
taken contrary to the declaration of law, prior to the date of
the declaration are validated. This is done in larger public
interest. Therefore, the subordinate forums which are bound to
apply law declared by this Court are also duty bound to apply
such dictum to cases which would arise in future. Since it is
indisputable that a court can overrule a decision there is no
valid reason why it should not be restricted to the future and
not to the past. Prospective overruling is not only a part of
constitutional policy but also an extended facet of stare decisis
and not judicial legislation.”
(emphasis supplied)
23. In Sarwan Kumar and Anr. v. Madan Lal Aggarwal (2003) 4 SCC 147, this
Court held that though the doctrine of prospective overruling was initially
made applicable to the matters arising under the Constitution but
subsequent decisions have made the same applicable even to cases under
different statutes. The Court observed:
“15. The doctrine of "prospective overruling" was initially made
applicable to the matters arising under the Constitution but we
understand the same has since been made applicable to the
matters arising under the statutes as well. Under the doctrine
of "prospective overruling" the law declared by the Court
applies to the cases arising in future only and its
applicability to the cases which have attained finality is saved
because the repeal would otherwise work hardship to those who
had trusted to its existence. Invocation of doctrine of
"prospective overruling" is left to the discretion of the court
to mould with the justice of the cause or the matter before the
court.”
(emphasis supplied)
24. In Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund
Bairwa (2009) 4 SCC 299, this Court relied upon the observations made by
Justice Benjamin N. Cardozo in his famous compilation of lectures The
Nature of Judicial Process – that “ in the vast majority of cases, a
judgment would be retrospective. It is only where the hardships are too
great that retrospective operation is withheld.”
25. The present case, in our opinion, is one in which we need to make it
clear that the overruling of the Full Bench decision of the Madhya Pradesh
High Court will not affect cases that have already been tried or are at an
advanced stage before the Magistrates in terms of the said decision.
26. With the above observations, this appeal fails and is hereby
dismissed.
......................…......………………....………..……J.
(T.S. THAKUR)
.......................…......………………....………..……J
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi
February 26, 2013
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