/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.773 OF 2006 ALONGWITH CRIMINAL APPEAL NO.230 OF 2006 The State of Maharashtra ...Applicant V/s. Ramjan Jansibhai Inamdar & Ors. ...Respondents Shri.S.R. Borulkar, P.P. with Ms.A.T. Javeri APP for the State. Shri.S.V. Kotwal, for Respondent No.1 and 2. CORAM : V.M. KANADE, J. DATED : 14th MARCH, 2008. P.C:- 1. State has preferred this Criminal Application No.773 of 2006 challenging the judgment and order passed by the Judicial Magistrate, First Class, Bhor. State has also preferred the Criminal Appeal No.230 of 2006 for enhancement of sentence awarded to the Respondents/Accused. During the course of arguments it has been brought to my notice that in view of amendment of Section 378(2), both the Criminal Application and / 2 / Criminal Appeal will have to be heard by the Sessions Court. 2. Section 378 of Cr.P.C. has been amended by the Cr.P.C. Act, 2005. Sub-Section 2(1) of the amendment Act, 2005 provides that same shall come into force on such date as the Central Government may by notification prescribe in the Official Gazette. Notification dated 23rd June, 2006 has been published by the Central Government in the Gazette of the said date and as such said amended Act has been brought into force. However, few sections which are mentioned in the Amendment Act have not been brought into force and in the said notification dated 23rd June, 2006, said date is fixed for bringing into force the amended Act. By virtue of amendment of Section 378 of Cr.P.C., an appeal against the order of acquittal passed by the Magistrate shall lie before the Court of Sessions in respect of cognizable and non-bailable offence(emphasis supplid). 3. It is submitted by Shri.Borulkar, the learned Public Prosecutor that since by virtue of said amendment forum of filing an appeal has been changed, said amendment will have to be construed as an amendment in the procedure prescribed in filing an appeal and, therefore, substantive right of the Accused to file an appeal has not been taken away but only forum / 3 / has changed. He further submitted that it is well settled position in law that amendment which brings about change in the procedure becomes applicable retrospectively. He has invited my attention to the judgment of the Apex Court in the case of New India Insurance Co. Ltd., V/s. Smt. Shanti Misra reported in 1976 SC 237. He invited my attention to the para five of the said judgment wherein ratio of the case has been laid down. 4. Shri. Kotwal, the learned counsel for the Respondents, on the other hand invited my attention to the judgment of this Court in the case of State of Maharashtra V/s. Hanmant Prabhakar Waidande reported in 2007 ALL MR (Cri.) 41. He submitted that the learned single Judge of this Court had directed the Applicant therein the State of Maharashtra to submit application for leave to file an appeal in the Sessions Court in view of the fact that the application was filed challenging the order dated 12th April, 2005 passed by the Judicial Magistrate, First Class, Pandharpur and the application was filed on 2nd August, 2006. He pointed out that the learned Single Judge of this Court held that since the application was filed after amendment Act had been brought into force, the learned Single Judge had directed the State of Maharashtra to present the application for leave to file an appeal in the Sessions Court. / 4 / 5. It is well settled position in law that any amendment which brings about change in the procedural law becomes applicable retrospectively. Section 378(2) and Section 377 of Cr.P.C. has changed the forum before whom an appeal for either enhancement of sentence or application for leave to file an appeal has to be filed. The right to file an appeal has not been taken away by the said amendment. 6. In my view, ratio of the judgment in the case of New India Insurance Co. Ltd(supra) would squarely apply to the facts of the present case. In para 5 of the said judgment the Apex Court has observed as under:- “5. On the plain language of Sections 110A and 110F 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 that 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 / 5 / made available only to causes of action arising after the creation of the forum, then the retrospective 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-s.(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 110A 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 / 6 / (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 110F of the Act. While taking the latter view the High Court failed to notice that primarily the law engrafted in Sections 110A and 110F was a law relating to the change of forum.” 7. Similarly the question before the learned Single Judge of this Court in the case of State of Maharashtra V/s. Hanmant Prabhakar Waidande(supra) was whether the application which is filed after 23rd June, 2006 is maintainable or not and, therefore, this Court on the said aspect directed the State of Maharashtra to file an appeal before the Sessions Court. 8. In my view, therefore, both the Criminal Application and Criminal Appeal will have to be transferred to the Sessions Court. Even those applications and such appeals which are filed before 23rd June, 2006 and are still pending will have to be transferred to the Sessions Court since the said provision applies retrospectively. V.M. KANADE, J. / 7 /