JUDGMENT [ENTITY], J.
1. This is an application under [SECTION] [ACT] for reviewing the judgment of this Court passed by me on 14-12-1976, rejecting the criminal revision filed by the applicant in limine.
2. Sri [ENTITY], learned Counsel appearing for the applicant in this case, urged that as the Magistrate did not comply with the procedure prescribed by [SECTION] of the [ACT], therefore, the sentence awarded to the applicant was illegal and was liable to be quashed. The material portion of [SECTION], on which reliance was placed by the learned Counsel for the applicant, in support of his submission, is quoted below:
(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of [SECTION] or [SECTION], he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.
3. Admittedly, in the instant case the applicant was not given an opportunity of hearing on the question of sentence in accordance with the procedure prescribed by this Section before the same was passed upon him by the Magistrate, Sri [ENTITY], learned State Counsel, however, controverted the above submission of the learned Counsel for the applicant and urged two contentions in support of his submission. The first contention was that the application under [SECTION] [ACT] was not maintainable. The second argument advanced on merits by him was that [SECTION] of the [ACT] clearly requires a criminal court to decide the cases pending on the date of enforcement of the [ACT] to be decided and concluded in accordance with the provisions of the Old Code. Accordingly, the provisions of [SECTION] [ACT] contained in [SECTION] of the [ACT] did not apply to the facts of the present case and, therefore, non-compliance of the same by the Magistrate did not vitiate his judgment.
4. After hearing counsel for the parties, I do not propose to go into the preliminary question raised by the learned Counsel for the State in this case, although prima facie there appears to be substance in it as well.
5. Coming to the merits, it may be relevant to quote [SECTION] of the [ACT] in order to appreciate the argument of the learned State Counsel. It reads as under:
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 [ACT], 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 [SECTION] 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.
6. Before proceeding with the interpretation of the aforesaid clause, it may be noted that the learned Counsel appearing for the applicant admitted before me that the case was pending trial under [SECTION] of the Old Code at the time when the [ACT] came into force. A careful scrutiny of [SECTION] would show that in making this provision the legislature clearly provided that every inquiry, trial or investigation, which was pending before the date on which the [ACT] came into force, shall be disposed of and continued in accordance with the provisions of the Old Code as in force immediately before such commencement as if the New Act had not come into force. As the proceedings under [SECTION] of the Old Code were pending on the date of commencement of the New Act, which were relating to the trial of the case, in my opinion, [SECTION] of the [ACT] clearly applied to the facts of the present case and the Magistrate was justified in concluding the enquiry in accordance with the Old Code. [SECTION] of the New Act, in these circumstances, was not applicable to the facts of the present case. [SECTION] is contained in [SECTION] of the [ACT] dealing with the trial of warrant cases by the Magistrate. It is to. be found in [SECTION] the heading of which is 'Conclusion of Trial. This Sub-Chapter, to my mind, will apply only when the trial has been commenced under [SECTION] or [SECTION] of the [ACT]. This will have no application to a case which had commenced under the Old Code and was pending at the trial. The language of [SECTION] does not lead to any other conclusion. It has been very clearly said that where, in any case, under this Chapter, the Magistrate does not proceed in accordance with the provisions of [SECTION] or [SECTION], he would be required to give an opportunity to the accused of hearing before passing sentence upon him. As the offence in the instant case was not tried under the [ACT], there was no occasion for the trial Magistrate either to apply [SECTION] of the [ACT] to the present case and to call upon the accused before passing the sentence upon him.
7. Reliance was placed by the learned Counsel for the applicant on a decision of the Supreme Court in Mr. [ENTITY] v. Superintendent, Central Jail. Tihar, New Delhi , in support of his proposition that [SECTION] will apply to the instant case. Before dealing with the said case, I would like to observe that the aforesaid clause (b) of [SECTION](2), in my opinion, is not applicable to the present case. Emphasis was laid by the learned Counsel for the applicant on the words "sentences passed", and it was urged that as the sentence, ultimately, was passed under the Old Codes, the same would be deemed to have been passed under the [ACT] and, therefore. [SECTION] applied. I am unable to accept the submission made by the learned Counsel for the applicant. [SECTION] of the [ACT] is extracted below:
all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code.
[SECTION] of the [ACT] causes a legal fiction that although for certain purposes action has been taken under the Old Code but it shall be deemed to have been taken under the New Act. This clause nowhere provides that the sentence in a criminal trial which had been commenced under the Old Code and was pending on the date of commencement of the New Act, would have to be passed in accordance with the [ACT].
8. In order to appreciate the contention of the learned Counsel for the applicant, it may be mentioned that by [SECTION] of the [ACT], the [ACT], was repealed, [SECTION] is, however, a saving provision. Clause (a) of this Sub-section provides for certain proceedings mentioned therein to be continued and concluded in accordance with the provisions of the Old Code despite the coming into force of the [ACT], whereas Clause (b) lays down that all notifications, published, proclamations issued and sentences passed shall be deemed to have been published or made under the corresponding provision of the [ACT]. Under the Common Law Rule, the consequences of repeal of a Statute are very drastic, except as to transactions passed and closed. The effect of repeal is to destroy all causes of action that may have arisen under the repealed Statute. But [SECTION] of the [ACT] prevent the obliteration of a Statute in spite of its repeal to keep intact rights acquired or accrued and to permit continuance or institution of legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. In the instant case, however, it appears that it may not be necessary to take recourse to the provisions mentioned above of the [ACT] inasmuch as the Legislature has provided in [SECTION] in very clear terms a saving provision. As a result of the saving clause, the trial, enquiry or investigation pending on the date of enforcement of the [ACT], which are. covered by the aforesaid clause, can be continued and concluded in accordance with the provisions of the Old Code irrespective of the fact that the [ACT] had come into force. As observed in Halsburys Laws of England, 3rd Edition, Vol. 36, at page 401 "the saving clause preserves something which would be otherwise included in the words of the enacting part" [SECTION] of the [ACT], in my opinion, clearly applies to the instant case inasmuch as, admittedly, on the date when the New Act came into force the proceedings under [SECTION] Were pending before the court.
9. So far as [SECTION] is concerned, the same is inapplicable inasmuch as it has a different object and different purpose for which it was enacted. Counsel for the applicant, however, laid stress on the words "all sentences passed", and urged that as all sentences passed under the Old Act have to be treated as passed under the [ACT], the provision regarding the giving of opportunity of hearing before passing of the sentence had to be complied with in order to bring the same in conformity with the provisions of the New Act. To me, the Submission appears to be untenable. As observed above, Clause (b) has a limited object of treating the various acts done under the Old Act as one under the New Act. So far as the case of Mr. [ENTITY] (supra) relied upon by the learned Counsel for the applicant is concerned, it may be observed that the question involved for decision in that case before the Supreme Court was different than the one which arises for consideration in the present case. The law laid down in that case is of no assistance to the applicant. In my opinion, the provision by which we are governed is [SECTION] of the [ACT].
10. Reference in this connection may be made to two recent decisions of the Supreme Court. One of them is reported in [PRECEDENT] . In this case the accused claimed the benefit of the [ACT] in respect of a case which was being investigated under the Old Code. The Supreme Court negatived the claim of the accused laying down that in a case in which investigation was pending on the date of coming into force of the [ACT], the accused could not press into service the provisions of the [ACT]. The second case is an unreported decision of the Supreme Court given in [PRECEDENT], decided on S-12-1.976) (Since reported in [PRECEDENT]. The observations made by the Supreme Court in this case which are helpful for our purposes, are being extracted below:
This contention was, however, not pressed at the hearing of the appeal before us and it was conceded, and in our opinion rightly, that the earlier case before the Sessions Judge was governed by the provisions of the old Code and the new Code had no application to it. [SECTION] of the new Code clearly provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force. Here in the present case the judicial Magistrate had already made an order of committal on 15th March, 1974. The case, therefore, already before the Court of Session prior to 1st April 1974 and it was pending before that court for trial on 1st April, 1974, when the new Code came into force, It is immaterial as to when the case was actually registered and a number given to it. Since the case was pending for trial before the Sessions Court on 1st April, 1974, it was liable to be tried in accordance with the provisions of the old Code
11. As observed above, the scheme of the New Act also lends support to the view taken by me. It would he noticed that [SECTION], which deals with the trial of warrant cases by the Magistrate, has been divided into three parts. The heading of Part A is "cases instituted on a police report" whereas that of Fart B is "Cases instituted otherwise than on police report." [SECTION] deals with "Conclusion of trial". This part applies to the trials which are done in accordance with the various provisions made in [SECTION] [SECTION] is a part of [SECTION] and will apply only to those trials which are conducted and concluded in accordance with the various provisions of [SECTION] It cannot be independently applied to trials which are not done under this Chapter. In fact, these Parts are knit together and have to be lead together for the purposes of giving effect to the intention of the Parliament. The language employed by the Legislature in [SECTION] also lends support to the view expressed above. In my view, [SECTION] is a provision relating to the mode of trial and, as such would apply when the trial is done in accordance with the provisions of [SECTION] of the [ACT]. The fact that giving an opportunity is a mode of trial! is borne out from the observations made by the Supreme Court in the case of [PRECEDENT]. If the submission of the applicant's counsel is accepted then the applicability of the provision cannot he restricted only to pending trials but also to cases which had already been decided before the coming into force of the New Act, which is never intended by the Parliament.
12. For the reasons given above, I do not find any substance in this application for review, which is, accordingly, rejected.