Anant Gopal Sheorey vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 178 of 1957

Decision Date: 22 May 1958

Coram: J.L. Kapur, Bhuvneshwar P. Sinha, Syed Jaffer Imam

In this case the petition was titled Anant Gopal Sheorey versus The State of Bombay and the judgment was delivered on 22 May 1958 by the Supreme Court of India. The opinion was written by Justice J L Kapur and the bench was comprised of Justices J L Kapur, Bhuvneshwar P Sinha and Syed Jaffer Imam. The petitioner was Anant Gopal Sheorey and the respondent was the State of Bombay. The date of judgment is recorded as 22/05/1958 and the citation appears as 1958 AIR 915 and 1959 SCR 919. The matter concerned an amendment to the procedure applicable to a criminal trial while the trial was pending and whether that amendment operated retrospectively. The relevant statutory provisions were Section 342 A of the Code of Criminal Procedure of 1898 and Section 116 of the Criminal Procedure Code (Amendment) Act, 26 of 1955. The headnote explains that a complaint had been lodged against the appellant on 13 January 1953 and that the Special Magistrate assigned to try him began recording evidence on 4 July 1955. During the course of the trial the Criminal Procedure Code (Amendment) Act, 26 of 1955 became effective on 2 January 1956, introducing Section 342 A into the Code. The appellant subsequently filed an application with the Magistrate seeking to appear as a witness on his own behalf under that new section in order to disprove the charges. The Magistrate rejected the application, holding that Section 342 A could not be applied to proceedings already pending and that the trial must continue under the procedure laid down in the unamended Code. The Court, however, held that a plain construction of Section 116 of the amending Act, which prescribed the procedure to be followed in pending cases, made it clear that Section 342 A was applicable to such cases, and that, as a matter of general law, a change in procedure operates retrospectively. The judgment records that the present appeal was filed in Criminal Appeal No 178 of 1957 under criminal appellate jurisdiction. Leave to appeal was granted against the order dated 28 May 1956 of the former Nagpur High Court in Criminal Revision No 150 of 1956, which itself arose from the order dated 2 February 1956 of Shri K L Pandey, Special Magistrate at Nagpur, in Criminal Case No I of 1955. Counsel for the appellant and counsel for the respondent were permitted to appear. The Court noted that the appeal challenged the judgment and order of the Nagpur High Court which had affirmed the Special Magistrate’s decision to deny the appellant’s request to give evidence as a witness under Section 342 A of the Code of Criminal Procedure. The factual background was that the Advocate‑General of Madhya Pradesh, on 13 January 1953, filed a complaint against the appellant and three other persons invoking Section 282 of the Indian Companies Act and Sections 465 and 477A of the Indian Penal Code. The criminal proceedings were initiated in 1954 before a regular Magistrate but were transferred on 18 May 1955 to a Special Magistrate, who again began recording evidence on 4 July 1955. The Criminal Procedure Code (Amendment) Act, 26 of 1955 received the President’s assent on 12 August 1955 and came into force on 2 January 1956; for the purpose of this judgment it is referred to as the Amending Act.

On 14 January 1956 the appellant submitted an application to the magistrate requesting that he be permitted to appear as a witness for his own defence under section 342A of the amended Code of Criminal Procedure, asserting that such testimony would be “in disproof of the charges made against him”. The magistrate rejected the application, and the appellant’s subsequent revision to the High Court of Nagpur was also dismissed. The High Court observed that, while it must be conceded that the wording of clause (c) and the other clauses of section 116 of the amending Act could have been expressed in simpler and more direct language, the “ingenious circumlocution” employed could not be allowed to conceal the true meaning of the provision or to support the construction sought by the appellant. The Court further held that the language used did not justify a construction whereby, when the statute refers to “this Act”, it would mean only certain provisions of the Act. Consequently, the High Court concluded that the proceedings pending before the Special Magistrate must be conducted in accordance with the procedure laid down in the unamended Code, and that the appellant therefore could not appear as a witness under section 342A of the amended Code.

The Court explained that, under the provisions of the unamended Code, an accused person was not permitted to testify in his own defence, although the court retained the power to put questions that would enable him to explain circumstances appearing in the evidence against him. Section 118 of the Evidence Act, which deals with persons competent to testify as witnesses, was held to be inapplicable to an accused because section 342 of the unamended Code barred an accused from appearing as a witness. The Court also noted that Article 20(3) of the Constitution protects an accused from being compelled to be a witness against himself. Section 342A, inserted into the Code by section 61 of the amending Act, provides that “any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial,” subject to two conditions: (a) the accused shall not be called as a witness except on his own written request; and (b) the failure of the accused to give evidence shall not be the subject of any comment by any party or the Court, nor give rise to any presumption against him or any co‑accused. Thus, the amendment made the accused a competent defence witness, but it also emphasized that the accused cannot be compelled to testify, may be called only upon his own written request, and that any failure to testify may not be commented upon or used to infer prejudice. The question that arises for decision is whether to

In a pending prosecution the amended provisions of the Code became applicable. The Court observed that there was no dispute about the general principles that governed the case. It stated that no individual possessed a vested right to any particular mode of procedure. Rather, each person retained only the right to prosecute or to defend in the manner prescribed at the time for the court in which the case was pending. Consequently, when Parliament enacted a statute that altered the procedural mode, the parties were bound to proceed according to the new mode. The Court referred to the authority Maxwell on Interpretation of Statutes at page 225 and to the case The Colonial Sugar Refining Co. Ltd. v. Irving (1) to illustrate that a procedural amendment operates retrospectively. Unlike a change that creates a vested right, a procedural amendment applies not merely prospectively but also to existing proceedings.

The amending Act contained specific provisions regarding the procedure to be applied to cases that were already pending, set out in section 116. Sub‑section (a) provided that, notwithstanding the commencement of any part of the Act in any State, the provisions of section 14, section 30, section 145, or section 146 of the principal Act as amended by the new Act would not apply to, nor affect, any trial or other proceeding that was pending before a Magistrate on the date of such commencement. Each such trial or proceeding was to be continued and disposed of as if the new Act had never been passed. Sub‑section (b) stipulated that the provisions of section 406, section 408, or section 409 of the principal Act, as amended, would not apply to, nor affect, any appeal pending before the District Magistrate or any First‑Class Magistrate empowered by the State Government to hear that appeal on the date of commencement. Even though the first proviso to section 406 and section 407 of the principal Act might be repealed, those appeals were to be heard and disposed of as if the new Act had not been enacted. Sub‑section (c) declared that the provisions of clause (w) of section 4, section 207A, section 251A, or section 260 of the principal Act, as amended, would not apply to, nor affect, any inquiry or trial before a Magistrate in which the Magistrate had begun recording evidence before the date of commencement and that was still pending on that date; such inquiries or trials were to be continued and disposed of as if the Act had not been passed. Sub‑section (d) provided that the provisions of Chapter XXIII of the principal Act, as amended, would not apply to, nor affect, any trial before a Court of Sessions, whether by jury or with assessors, in which the Court of Sessions had begun recording evidence before the date of commencement and that remained pending on that date; each such trial was to be continued and disposed of as if the new Act had not been enacted. The language of each sub‑section emphasized that the pending proceedings would proceed under the procedural regime that existed prior to the amendment, thereby preserving the status quo for those cases.

In that passage, the Act stated that, except as expressly provided, the provisions of the Act and the amendments made by it would apply to all proceedings that were instituted after the Act came into force and also to all proceedings that were pending in any criminal court on the date the Act commenced. The respondent argued that the wording in clause (c) of section 116 of the amending Act – “and every such enquiry or trial shall be continued and disposed of as if this Act had not been passed” – meant that no provision of the Act could be applied to trials that were already pending, and placed particular emphasis on the phrase “as if this Act had not been passed”. The respondent contended that accepting this interpretation would create a conflict with the latter part of section 116, which expressly provided that the provisions of the Act and its amendments would apply to all proceedings instituted after the commencement and also to all proceedings pending on that date. The language used in that latter portion regarding proceedings instituted after commencement was identical to that used for proceedings already pending in a criminal court on the commencement date. Consequently, if the Act applied to all proceedings that began after it became operative, it should equally apply to proceedings that were already underway, except for the provisions that were specifically excluded. The Court observed that construing the section in the manner advocated by the respondent would generate an internal conflict between the words of the various clauses and the main text of section 116. One of the established principles of interpretation requires that words be read in a way that avoids such a conflict. Accordingly, the Court held that the words of clause (c) must be read together with the remainder of section 116 so that the provisions of sections 4(w), 207A, 251A and 260 of the Code, as amended, would not apply to any enquiry or trial before a magistrate where evidence‑recording had begun before the commencement of the amending Act, and that such enquiries or trials should be continued and disposed of as if those particular sections had not been enacted. Except for those expressly excluded provisions and except for the provisions mentioned in sub‑clauses (a), (b) and (d), all other provisions of the amended Code would apply to those pending proceedings, which is consistent with the general rule that procedural amendments apply unless expressly saved. By virtue of section 34 of the amending Act, section 251 of the Code was replaced by two sections, namely 251 and 251A. Section 251 prescribed the procedure in warrant cases, providing that in the trial of warrant cases by magistrates, the magistrate shall—(a) in any case instituted on a police report, follow the procedure specified in section 215A; and (b) in any other case, follow the procedure laid down in the other provisions of that Chapter.

In the relevant provision, the Court explained that when a case is instituted on a police report, the magistrate must follow the procedure laid down in section 215A, whereas for any other case the magistrate must follow the procedure set out in the remaining provisions of the same Chapter. Sub‑clause (a) therefore applies to cases started on a police report and sub‑clause (b) applies to all other cases. For the former category section 251A governs the procedure, while for the latter category the procedure prescribed in the other provisions of Chapter 21 is deemed applicable. Section 342A, which lies in Chapter 24, was noted to remain effective because the amending Act and the amended Code contain no provision that would remove section 342A from criminal proceedings that are already pending before a magistrate and in which the taking of evidence has already begun. The Court held that, on a plain reading of the language of section 116 of the amending Act, section 342A continues to be available to the appellant. It was observed that the High Court had apparently been misled into interpreting clause (c) of section 116 to mean that the enactment should be treated “as if this Act had not been passed”. Consequently, the High Court’s construction was held to be erroneous. The Court concluded that the appellant, as a competent defence witness, was entitled to testify in order to disprove the charges made against him or against any other person charged in the same trial. Accordingly, the Court allowed the appeal, set aside the order of the lower courts, and held that the appellant’s application to appear as a witness was well‑founded and should have been permitted. The appeal was therefore allowed.