State vs Madhukar Hedau

C.T. Dighe, J.—The question for consideration in this revision petition is whether the offence u/s 12 (a) of the Prevention of Gambling Act is barred by limitation u/s 468 of the Code of Criminal Procedure 1973 when an investigation in respect of that offence was pending on 1-4-1974 the day on which the new Criminal Procedure Code came into force.

Section 468 of the Code of Criminal Procedure which is newly introduced, provides for a bar for taking cognizance of an offence specified in subsection (2) and a period of limitation is provided for. The period is of six months if the offence is punishable with line only. It is of one year if the offence is punishable with imprisonment for a term not exceeding one year and it is of three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years in the case, before the learned Judicial Magistrate, First Class, 6th Court, Nagpur, the offence took place on 25-12-1972. Charge-sheet was filed subsequent to the coming into operation of the new Code and also after the expiry of one year''s period which would be the relevant period of limitation u/s 468 (2) (b) o the new Code. The learned Magistrate came to the conclusion that he cannot take cognizance of the offence because of the bar obtained in section 468 of the Code of Criminal Procedure, 1973. The argument that u/s 484 of the new Code proceedings, investigations, Inquires, trials under the old Code are saved, was negatived. The learned Magistrate observed as follows :

I find no force in the arguments because what is saved by section 484 is investigation which had already commenced and the police could go on with that investigation as per the provisions of the old Criminal Procedure Code. What is barred u/s 468 of Criminal Procedure Code is taking of cognizance by Court.

Apparently, therefore, the learned Magistrate is drawing distinction between the proceedings in investigations etc. and taking cognizance of the offence in respect of which charge-sheets are lodged in the Court.

Following this line of reasoning, Mr. Khamborkar for the opponents, has contended that u/s 484 of the new Code of Criminal Procedure what is saved is investigation. According to him, the moment investigation is complete, protection granted u/s 484 comes to an end Therefore, at the time of trial section 468 would be attracted. He does not agree with the contention raised by Mr. Mor, the learned Assistant Government Pleader, that what is saved u/s 484 (2) (a) is not only the investigation but all further proceedings resulting into the final disposal of the matter in question. But in the alternative Mr. Khamborkar also argues that in case section 484 sub-section 2 (a) yields to that interpretation, then to the extent the trial could be contemplated to continue would be in conflict with the existing provisions of the new Code of Criminal Procedure, viz., section 468 of the Code of Criminal Procedure and as such that would be a void provision. In this respect he has relied upon the decision reported in Mohanlal Kanayalal v. Lalchand Motilal Malani 63 Bom. L R 183, a decision under the Hyderabad Agricultural Debtors Relief Act, No. XVI of 1956. Prior to the commencement of the Hyderabad Agricultural Debtors Relief Act, 1956, there was Hyderabad Debt Conciliation Act No. 1 of 1349 Fasli but the same was repealed by section 65 of the Hyderabad Agricultural Debtors Relief Act, 1956. That section also provided for the dissolution of the Boards establishment u/s 3 of the repealed Act. However, there was a proviso relating to the proceedings pending before the dissolved Boards. The proviso contemplated two categories, proceedings falling within the pecuniary limits of the Court to which jurisdiction was conferred u/s 4 of the Hyderabad Agricultural Debtors Relief Act, 1956 and the proceedings which were beyond the pecuniary limits of the jurisdiction. Section 65 laid down that the proceedings of the first category could go on as if filed in the Court on which jurisdiction was conferred. The proceedings of the second category could be continued and disposed of as if the Act had not been passed. Now, for the purposes of this second category the Boards were as contemplated to be existing which was a construction in conflict with the earlier provision contained in section 65 speaking of the dissolution of the Boards established. It was held that the second part of the proviso to section 65 was void and ineffective and that the proceedings contemplated under second category would lapse and cease to exist.

Drawing assistance from this decision, the learned counsel for the opponents contends that in case section 484 is interpreted in a manner saving the proceedings further resulting into the end of the investigation and commencing into trial etc., then there would be a conflict with section 468 and, therefore, the said interpretation would be of no effect and would be void.

As against this, the learned Assistant Government Pleader, Mr. Mor, contends that if that interpretation is accepted, the rights saved u/s 484 would turn out to be illusive. He invited my attention to the fact that the steps in investigation prior to the coming into force of the new Code of Criminal Procedure and the steps in investigation subsequent to the commencement of that Act are virtually the same and, therefore, the section would be of no benefit at all and it will be as if a dead letter.

While considering the question that is raised before us, one must remain aware to the situation that long before the commencement of the new Code of Criminal Procedure, viz. on 1-4-1974, there may have been cases investigation of which was pending and the period of limitation provided for under different heads may have expired even before 1-4-1974. In fact, so far as the case in hand is concerned, the offence is of 25-12-1972. The relevant period of one year of limitation expired on 25-12-1973. Now, prior to 1-4-1974, say upto 31st of March 1974, a charge-sheet filed in the present case, or in similar cases after the period of limitation could have been a valid charge-sheet upon which the trial could have commenced. But the result would be that the moment 1-4-1974 dawns the same would be invalid. In other words question really comes down to this as to whether section 468 of the new Code of Criminal Procedure is retrospective in operation or whether by reason of section 484 proceedings in investigation upon which trial could have commenced under the old Code even after the expiry of the period of limitation as obtained in section 468, are saved by reason of section 484 of the Code of Criminal Procedure 1973.

Section 484 sub-section (1) provides for the repeal of the Code of Criminal Procedure, 1898. Sub-section 2 (a), with which we are concerned, runs as follows:

(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial inquiry or investigation pending, then, such appeal, application trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this Code had not come into force:

Provided that every inquiry under Chapter XVIII of the old Code which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.

A reading of sub-section 2 (a) would show that an appeal, application, trial, inquiry or investigation pending at the time of the commencement of new Code are to be disposed of continued, held or made, as the case may be, under the provisions of the old Code.

The learned counsel for the opponents has first sought to construe this sub-section as limiting the words ''disposed of, continued, held or made'' as applicable in sequence only to the different categories which precede these words, and it is for these reasons that he contends that pending investigation was saved so that as soon as investigation was over, the effect of section 484 (2) (a) came to an end and the proceedings started to be governed by the new Code. In other words, according to him, subsequent to the stage of investigation was the stage of trial based on the filing of charge-sheet and that stage of trial was not saved by sub-section 2 (a) of section 484. It could be the trial under the New Code, so that section 468 of the New Code applied with full force and, therefore, the learned Magistrate could not take cognizance of the offence enlisted in the charge-sheet filed after 1-4-1974.

It may have, however, to be observed that whereas five different types of proceedings are contemplated in the first part of sub-section 2 (a) starting from ''appeal'' and ending with ''investigation'', all such proceedings remaining pending at the commencement of the New Code, their furtherance under the New Code is indicated only by four expressions, namely disposed of, continued, held or made. There is nothing to suggest that the last expression made` ought to be restricted to the previous stages 4 and 5, namely--inquiries and investigations, because that expression can easily be applied to the making of an application also. Conversely the expression ''disposed of'' or ''continued'' can easily be applicable to an inquiry or an investigation also. In view of it, it appears to me that all the expressions are to be cumulatively applied to each of the stages contemplated in the first part of sub-section 2 (a) to section 484 and the words ''as the case may be'' would be applicable looking to the appropriate remedy opted for by the litigant. In view of it, it is impossible to concede that what is saved is the stage of investigation only.

Mr. Khamborkar contended that it would be incorrect to say that investigation includes all further proceedings in respect of an offence upto the stage of final appeal and it is his say that if such interpretation is accepted, it will come in conflict with section 468 of the Code of Criminal Procedure, 1973 and that the authority reported in Mohanlal v. Lalchand (cited supra) would negative such an interpretation.

Now section 468 provides a bar of limitation for the first time since the commencement of the New Code. In other words, the prosecuting agency is under an obligation, which is an obligation newly put upon them to file charge-sheets in relation to the offences within the period stipulated in various sub sections. Obligations and rights are always complimentary and to that extent the provisions of section 468, Criminal Procedure Code cannot be looked upon as mere provisions of procedure but as depriving the prosecuting agency of the right which they had under the old Code, of filing proceedings even after the period provided in section 468. It is on this background that the saving provisions of section 484 may have also to be looked into. Section 468 puts a bar and the question for consideration would be whether section 484 saves the attraction of such a bar. By saying that the two provisions are conflicting, we are only begging the question. As in the case of Mohanlal Kanayalal v. Lalchand Motilal Malani (supra) there is no express conflict but we are to find out whether section 468 has universal application or whether application of section 468 would be restricted by reason of section 484 of the Code of Criminal Procedure.

It is in this connection that a passage in The Colonial Sugar Refining Company Limited v. Irving 1905 AC 369 would be of relevance. That was a case where question regarding filing of an appeal was debated. It was on the background that the right of appeal from the Supreme Court of Queensland to His Majesty in Council given by the order in Council of June 30, 1860, had been taken away by the Australian Commonwealth Judiciary Act, 1903, section 39, sub-section 2, and the only appeal therefrom lay to the High Court of Australia. In deciding that the Act was not retrospective and a right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away, Lord Macnaghten has observed as follows :

As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed.

Although the question debated there was in relation to the appeal, the words are strong enough to indicate that in such cases we have to advert ourselves in finding out whether the question is one of procedure only or whether it touches a right in existence at the passing of the new Act. As I have indicated earlier, providing of the limitation period a new from 1-4-1974 deprives the prosecuting agency of a right that existed earlier of preferring a charge-sheet even after the period of limitation and I have looked at the situation that there may have been pending investigations where such limitation period had expired even before 1-4-1974, say in the month of March 1974, when charge-sheets could have been filed in March 1974 and which suddenly become infructuous if they are filed on 1-4-1974 or subsequent thereto. Because of this situation and because an obligation is cast upon the prosecuting agency to file charge-sheets within a certain period and because obligations are always inter-connected with rights, I view that the prosecuting agency is deprived of the right and, therefore, section 468 could be non-applicable to the cases which would fall u/s 484, Criminal Procedure Code. In other words, investigations which are pending on 1-4-1974 would be saved from the bar of section 468 of the Code of Criminal Procedure.

In fact, in this connection we might also remain aware that section 484 provides for a fiction that although the old Act is repealed it will be of effect in certain proceedings, and for finding out the nature and extent of such a fiction we can usefully refer to the decision reported in Boucher Pierre Andre Vs. Superintendent, Central Jail, Tihar, New Delhi and Another, . That was a case where the Supreme Court interpreted section 428 of the New Code of Criminal Procedure and benefit of set off of Pre conviction detention was made available to persons whose trials had ended even before coming into force of the New Act, and that is because it was said that deeming provision u/s 484 (2) (b) applied to such cases. The relevant observations upon which I would like to reply are as follows:

It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion.

For this reason also the legal fiction contained in saving investigation will have to be carried to its logical end. There cannot be a simple hiatus after investigation so that there would be the formality of filing a charge-sheet and yet no cognizance can be taken by reason of section 468. In other words, section 468 of the New Criminal Procedure Code cannot be taken as restrictive, if the charge-sheet filed is on a pending investigation. The contention raised by Mr. Khamborkar, therefore, cannot at all be accepted. In the result, the revision petition is allowed. Rule is made absolute. The matter is sent back for re-trial according to law.