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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

J U D G M E N T

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

Page 2 2

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 9

th

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 18

th

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

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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 14

th

February, 2008 and was

published in Madhya Pradesh Gazette (Extraordinary) on

22

nd

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 22

nd

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

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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 22

nd

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

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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:

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“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

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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

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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

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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

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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

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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

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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

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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:

Page 14 14

“26. xxxxxx

(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:

Page 15 15

“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

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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

22

nd

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,

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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.

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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

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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

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Special Judge could not be termed illegal just because there

was an amendment to the procedural law on 18

th

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)

Page 21 21

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

Page 22 22

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

Page 23 23

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

Page 24 24

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.”

Page 25 25

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