minal Appeal No 178 of 1957
117 920 Appeal by special leave from the order dated May 28 1956 of the former Nagpur High Court in Criminal Revision No 150 of 1956 arising out of the order dated February 2 1956 of Shri K L Pandey Special Magistrate at Nagpur in Criminal Case No I of 1955
R Patnaik for the appellant
section N Bindra and R H Dhebar for the respondent
May 22
The Judgment of the Court was delivered by KAPUR J
This is an appeal against the judgment and order of the High Court of Nagpur confirming the decision of the Special Magistrate disallowing the application of the appellant to give evidence as a witness under section 342A of the Criminal Procedure Code
The Advocate General of Madhya Pradesh on January 13 1953 filed a complaint against the appellant and three others under section 282 of the Indian Companies Act and sections 465 and 477A of the Indian Penal Code
The proceedings commenced in 1954 before a Magistrate but on May 18 1955 they were transferred to a Special Magistrate who commenced the recording of evidence on July 4 1955
On August 12 1955 the Criminal Procedure Code Amendment Act 26 of 1955 received the assent of the President and came into force on January 2 1956
In this judgment it will be referred to as the Amending Act and the Code of Criminal Procedure as the Code
On January 14 1956 the appellant made an application to the Magistrate claiming the right to appear as a witness on his own behalf under section 342A of the amended Code in disproof of the charges made against him 
His application was dismissed and so was his revision to the High Court of Nagpur which held  While it must be conceded that the wording of clause c as also the other clauses of section 116 of the amending Act could have been put in simpler and more direct language its ingenuous circumlocution cannot be allowed to cloak
its true meaning or to permit the construction which the applicant seeks to 921 put upon it
The language used doe  not justify hold ing that when the statute says  this Act it means only  some of the provisions of this Act Thus the High Court was of the opinion that the proceedings pending before the Special Magistrate would be according to the procedure laid down in the unamended Code and the appellant could not therefore appear as a witness under section 342A of the amended Code
According to the provisions of the unamedded Code an accused person could not appear as a witness in his defence although for the purpose of enabling him to explain circumstances appearing in the evidence against him the Court could put such questions as it considered necessary
Section 118 of the Evidence Act deals with persons who are competent to testify as witnesses but in view of section 342 of the unamended Code no accused person could appear as a witness and there fore section 118 was inapplicable to such persons
Article 203 of the Constitution provides that no person accused of an offence shall be compelled to be a witness against himself and section 342A was inserted into the Code by section 61 of the amending Act
It provides S342A  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 Provided that a he shall not be called as a witness except on his own request in writing or b his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court to give rise to any presumption against himself or any person charged together with him at the same trial Thus the law was amended and the accused person has become a competent witness for the defence but he cannot be compelled to be a witness and cannot be called as a witness except at his own request in writing and his failure to give evidence cannot be 922 made the subject matter of comment by the parties or the Court
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 vs Irving 1
In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective
The amending Act contains provisions in regard to the procedure to be applied to pending cases in section 116 which is as follows S116  Notwithstanding that all or any of the provisions of this Act have come into force in any State athe provisions of section 14 or section 30 or section 145 or section 146 of the principal Act as amended by this Act shall not apply to or affect any trial or other proceeding which on the date of such commencement is pending before any Magistrate and every such trial or other proceeding shall be continued and disposed of as if this Act had not been passed  bthe provisions of section 406 or section 408 or section 409 of the principal Act as amended by this Act shall not apply to or affect any appeal which on the date of such commencement is pending before the District Magistrate or any Magistrate of the First class empowered by the State Government to hear such appeal and every such appeal shall notwithstanding the repeal of the first proviso to section 406 or of section 407 of the principal Act be heard and disposed of as if this Act had not been passed i1905 AC 369372 923 cthe provisions of clause w of section 4 or section 207A or section 251A or section 260 of the principal Act as amended by this Act shall not apply to or affect any inquiry or trial before a Magistrate in which the Magistrate has begun to record evidence prior to the date of such commencement and which is pending on that date and every such inquiry or trial shall be continued and disposed of as if this Act had not been passed dthe provisions of Chapter XXIII of the principal Act as amended by this Act shall not apply to or affect any trial before a Court of Sessions either by jury or with the aid of assessors in which the Court of Sessions has begun to record evidence prior to the date of such commencement and which is pending on that date and every such trial shall be continued and disposed of as if this Act had not been passed but save as aforesaid the provisions of this Act and the amendments made thereby shall apply to all pro ceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement
 It was contended on behalf of the respondent that the following words 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  mean that no provision of the Act would be applicable to pending trials and particular stress was laid on the words  as if this Act had not been passed
If that is the interpretation to be put then it would be in conflict with the last portion of the section i e  Save as aforesaid the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement
 The language used in this portion of the section in regard to the proceedings which are instituted after the commencement of the amended Code is identical with that dealing with proceedings pending in a Criminal Court on the date of its commencement
Therefore if this Act applies to all proceedings which commenced 924 after the Act came into force they would equally apply to proceedings which had already commenced except those provisions which have been expressly excluded
If the whole section is construed in the manner contended for by the respondent then there will be a conflict between the words used in the various clauses and words used in the main section 116 and it is one of the principles of interpretation that the words should be construed in such a manner as to avoid a conflict
Thus construed the words of cl
c and the words of the rest of the section 116 would mean this that the pro visions of sections 4 w 207A 251A or 260 of the Code as amended shall not apply or affect any enquiry or trial before a Magistrate where the recording of evidence has started prior to the date of the commencement of the amending Act and every such enquiry should be continued and disposed of as if these sections had not been enacted
Except as to this and except as to the provisions mentioned in sub cls
a b and d the other provisions of the amended Code would be applicable to such proceedings which is also in accordance with the general principles applicable to amendments in procedural law
By section 34 of the amending Act section 251 of the Code was substituted by two sections i e 251 and 251A Section 251 lays down the procedure in warrant cases
It provides section 251  In the trial of warrant cases by Magi
stratesthe 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 specified in the other provisions of this Chapter
 Sub clause a deals with cases instituted on a police report and sub cl
b with other cases
To the former section 251A is applicable and to other cases procedure specified in other provisions in Chapter 21 is made applicable
Section 342A is in Chapter 24 and there is nothing in the amending Act or the amended Code which makes the provision of section 342A inapplicable to criminal proceeding  which are pending before a Magistrate and in which the recording of evidence has commenced
925 In our opinion on the plain construction of the words used in section 116 of the amending Act section 342A available to the appellant
The High Court it appears was misled into construing the words in clause c of section 116 i e as if this Act had not been passed
The High Court was therefore in error and the appellant is entitled in our view as a competent witness for the defence to testify in disproof of the charges made against him or any other person charged together with him at the same trial
We would therefore allow this appeal set aside the order of the courts below and hold that the application made by the appellant to appear as a witness was well founded and should have been allowed
Appeal allowed


Summary:
In 1959 the landlord filed an application under section 31 of the UP Temporary Control of Rent  Eviction Act 1947 for the eviction of the tenant from the shop on the ground that the landlord wanted to demolish the shops in the building including the shop of the appellant tenant and in their place wanted to construct new shops and residential portion on the first floor
In the application the landlord gave an assurance undertaking that he would give new shop to the tenantappellant after the new shops were construct ed at a reasonable rent
This application was contested by the appellanttenant alongwith other tenants
The applica tion was made to the District Magistrate us 2d of the U P
Rent Act 1947
The Rent Controller and Eviction Officer who acted as District Magistrate under the said Act granted the permission and rejected the contentions of the tenants
Against this decision all the tenants filed revi sion petitions which were dismissed by the commissioner Rohilkhand Division Bareilly
The tenants preferred further revision to the State Govt
us 7 F of the said Act
In disposing of the revision petitions the Special Secretary noted that the landlord had given an undertaking to the tenants that they would he given newly constructed shops on standard rent and that during the period taken for construc tion alternative accommodation would he given to them
Thereafter the landlord filed a suit on the basis of the permission for eviction of the tenants
During the pendency of the suit the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972 came into force
The UP Rent Act of 1947 was repealed and some amendments were made to section 432rr in the UP Rent Act of 1972 whereby the landlords who had on the basis of permission granted to them us 31 of the UP Rent Act of 1947 instituted suits for the eviction of the tenants were given the right to apply for eviction of their tenants straightaway if the permission granted to them under section 31 of the UP Rent Act of 1947 had been obtained on any ground 561 specified in sub section 1 or subsection 2 of section 21 of the UP Rent Act of 1972
Taking advantage of these provisions the landlord filed an application for an order of eviction us 432rr of the UP Rent Act 1972
The Prescribed Authority dismissed the application of the land lord on the ground that the permission obtained by him was conditional permission and it would come into operation when the landlord had complied with the offer made by him and until then he could not claim eviction of the tenant us 432rr of the UP Rent Act 1972
Against that order the landlord preferred a writ petition in the High Court of Allahabad
The High Court took the view that the Prescribed Authority was bound to allow the application of the landlord us 432 rr and order eviction
Against this judgment the tenant appellant came up by way of special leave
In setting aside the order of the High Court this Court in allowing the appeal HELD One of the circumstances which constituted the basis for the grant of the permission to tile the suit for eviction was that the landlord gave an assurance cum under taking to give the newly constructed shops to the tenants sought to he evicted including the tenant in the appeal and that the landlord also gave a similar assurance to give alternative accommodation to the tenant during the period which would he taken in completing the new construction
Nothing is found in the provisions of Section 432rr of the UP Rent Act of 1972 which would enable the landlord to evade his duty to comply with the undertaking cum assurances given by him
The undertaking cum assurances given by the landlord in the instant case certainly formed part of the basis on which the permission to file suit for eviction was unconditionally given to him
It is but fair that the Court should see to it that the tenant is not deprived of the benefit of the undertakings cum assurances
566G 567F Asa Singh vs
BD Sanwal  Ors AIR 1969 All
474 and Bansilal Sahu vs The Prescribed Authority  Anr AIR 1980 All 194 referred to