# Appeal No. 178of1957. - II7 May 22, • Anant Gopal Sheorey v. The State of Bombay Kapur]. •

- **Citation:** [1959] 1 S.C.R. 919
- **Court:** Supreme Court of India
- **Decided:** 1956-01-02
- **Case number:** CRIMINAL APPELLATE . JURISDICTION: Criminal Appeal No. 178of1957
- **Bench:** B. P. Sinha, Jafer Imam, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/appeal-no-178of1957-ii7-may-22-anant-gopal-sheorey-v-the-state-of-bombay-kapur-1569
- **Pages:** 7

## Headnote

Criminal trial-Amendment in procedure during pendency of
trial-If retrospective-Code of Criminal Procedure (V of r898),
s. 342 A-Criminal Procedure Code (Amendment) Act (26 of r955),
S. II6.
A complaint was filed against the appellant on January 13,
1953, and the Special Magistrate trying him commenced the
recording of evidence on July 4, 1955· During the trial the
Criminal Procedure Code (Amendment) Act (26 of 1955) came
into force on January 2, 1956, which introduced s. 342 A in
the Code of Criminal Procedure. The appellant made an application to the Magistrate claiming the right to appear as a witness on his own behalf under s. 342 A in disproof of the charges
made against him. The Magistrate rejected the application on
the ground that s. 342 A 'could not be applied to pending proceed-
. ings which would be according to the procedure laid down in the
unamended Code :
Held, that on a plain construction of s. n6eof the amending
Act which provided for procedure to be followed in pending
cases s. 342 A was clearly applicable in such cases. Under
the general law also a change in procedure operates retrospectivelJ::.
CRIMINAL
APPELLATE . JURISDICTION:
Criminal
Appeal No. 178of1957.
- II7
May 22,
•
Anant Gopal
Sheorey
v.
The State of
Bombay
Kapur].
•
920
SUPREME COURT REPORTS
[1959)
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. 1 of
1955.
R. Patnaik, for the appellant.
S. N. Bindra and R. H. Dhebar, for the respondent.
1958. 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 s. 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 s. 282 of the Indian Companies
Act and ss. 465 and 4 77 A 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 s. 342A of the amended Code "in disproof of the charges made against him ". His application was disIJJissed 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 conl'!truction which the applicant seeks to
,..
I
•
S.C.R.
SUPREME COURT REPORTS
921
"
put upon it. The language used does not justify holding that when the statute says "this Act" it means
Anant Gopal
only "some of the provisions of this Act".
Sheorey
Thus the High Court was of the opinion that the prov.
ceedings pending before the Special Magistrate would · The State of
be according to the procedure laid down in the
Bombay
unamended Code and the appellant could not therefore appear as a witness under s. 342A of the amended
Code.
According to the provisions of the unamended 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 nec

## Text

; r
•
S.C.R.
SUPREME COURT REPORTS
919
at Bangalore. The proceedings will acqordingly be
z958
remitted to the said tribunal.
The appellant will
d
f h
The State of
pay the cost of reman in any event. Costs o t e
Mysore
present hearing of the appeal will be costs in the
v.
appeal.
The Workers of
We would like to add that Mr. Sanyal has agreed
Gold Mines
without prejudice that the appellant will -pay to the
. -.
d t fift
d
b .
t
d th .
l .
Ga;endragadkar J.
respon en s
een ays as10 wage owar s
e1r c aim
for bonus during the relevant years.
Gase remanded.
AN ANT GOP AL SHEOREY
v.
THE STATE OF BOMBAY
(B. P. SINHA, JAFER IMAM and J. L. KAPUR JJ.)
Criminal trial-Amendment in procedure during pendency of
trial-If retrospective-Code of Criminal Procedure (V of r898),
s. 342 A-Criminal Procedure Code (Amendment) Act (26 of r955),
S. II6.
A complaint was filed against the appellant on January 13,
1953, and the Special Magistrate trying him commenced the
recording of evidence on July 4, 1955· During the trial the
Criminal Procedure Code (Amendment) Act (26 of 1955) came
into force on January 2, 1956, which introduced s. 342 A in
the Code of Criminal Procedure. The appellant made an application to the Magistrate claiming the right to appear as a witness on his own behalf under s. 342 A in disproof of the charges
made against him. The Magistrate rejected the application on
the ground that s. 342 A 'could not be applied to pending proceed-
. ings which would be according to the procedure laid down in the
unamended Code :
Held, that on a plain construction of s. n6eof the amending
Act which provided for procedure to be followed in pending
cases s. 342 A was clearly applicable in such cases. Under
the general law also a change in procedure operates retrospectivelJ::.
CRIMINAL
APPELLATE . JURISDICTION:
Criminal
Appeal No. 178of1957.
- II7
May 22,
•
Anant Gopal
Sheorey
v.
The State of
Bombay
Kapur].
•
920
SUPREME COURT REPORTS
[1959)
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. 1 of
1955.
R. Patnaik, for the appellant.
S. N. Bindra and R. H. Dhebar, for the respondent.
1958. 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 s. 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 s. 282 of the Indian Companies
Act and ss. 465 and 4 77 A 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 s. 342A of the amended Code "in disproof of the charges made against him ". His application was disIJJissed 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 conl'!truction which the applicant seeks to
,..
I
•
S.C.R.
SUPREME COURT REPORTS
921
"
put upon it. The language used does not justify holding that when the statute says "this Act" it means
Anant Gopal
only "some of the provisions of this Act".
Sheorey
Thus the High Court was of the opinion that the prov.
ceedings pending before the Special Magistrate would · The State of
be according to the procedure laid down in the
Bombay
unamended Code and the appellant could not therefore appear as a witness under s. 342A of the amended
Code.
According to the provisions of the unamended 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 ll8 of the Evidence Act
deals with persons who are competent to testify as
witnesses but in view of s. 342 of the unamended Code
no accused person could appear as a witness and therefore s. ll8 was inapplicable to such persons. Article
20(3) of the Constitution provides that no person
accused of an offence shall be compelled to be a
witness against himself and s. 342A was inserted
into the Code by s. 61 of the amending Act. It pro.
vides:-
S. 342A " 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 arui canno~
be called as a witness· except at his own request in •
writing and his failure to give evidtince, cannot be
Kapur].
•
922
SUPREME COURT REPORTS
[1959)
•
made the subject matter of comment by the parties or
the Court.
·
Ana11t Gopal
Th
•
h
.c
h h
Sheorey
e question t at arises ior decision is w et er to a
pending prosecution the provisions of the amended
The Stote of · Code have become applicable. There is no controversy
Bombay
on the general principles applicable to the· case. No
v.
Kapur].
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 Go. Ltd. v.
Irving (1 ). In other words a change in the law of procedure operates retrospectively and unlike tll.e 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 s. 116
which is as follows :-
S. 116 "Notwithstanding that all or any of the
provisions of this Act have come into force in any
State-
( a) the 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;
·
(b) the 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 sach 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 ;
(x) (1905) ~.c. 309, 37z.
f
I" .
•
S.C.R.
SUPREME COURT REPORTS
923
(c) the provisions of clause (w) of section 4 or section 207A or section 251A or section 260 of the princiAnant Gopa~
pal Act as amended by this Act shall not apply to, or
Sheorey.
v.
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 1nquiry or
trial shall be continued and disposed of as if this Act
had not been passed ;
The State ·oJ
Bombay
(d) the 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 s.116 of the amending Act " and every such enquiry or trial shall be
continued and disposed of as if this Ad 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 ifthisActhadnot 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· proceed~
ings 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 pendillg in a. Criminal
Court on the date _of its commencement. Therefore -if •
this Act applies to all procef;)dings which • commenced
Kapur-),
'
•
924
SUPREME COURT REPORTS
[1959]
after the Act came into force they would equally apply
to proceedings which had already commenced except
Anant Gopal
those provisions which have been expressly excluded.
S_heorey.
v.
If the whole section is construed in the manner con.
The stat• of
tended for by the respondent then there will be a con.
Bombay
fiict between the words used in the various clauses and
Kapu• ].
words used in the main s. 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 s. 116 would mean this that the provisions of ss. 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-els. (a), (b) and (d) the
other provisions of the amended Code would be applic.
able to such proceedings which is also in accordance
with the general principles applicable to amendments
in procedural law.
By s. 34 of the amending Act, s. 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:-
S. 251 " In the trial of warrant cases by Magi.
strates, 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 specifi.
ed 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
s. 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
Jllakes the provision of s. 342A inapplicable to criminal
• proceedings which are pending before a Magistrate
and in whic:μ the recording of evidence has commenced.
f
•
S.C.R.
SUPREME COURT REPORTS
925
In our opinion on the plain construction of the
words used ins. 116 of the amending Act, s. 342A is
available to the appellant. The High Court, it appears,
was misled into construing the words in clause (c) of
s. 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.
Anant Gopal
Sheorey
v.
The State of
Bombay
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 .
THE ASSOCIATED CEMENT COMPANIES LTD.,
DW ARKA CEMENT WORKS, DW ARKA
v.
ITS WORKMEN & ANOTHER
(S. R. DAS c. J., N. H. BHAGWATI, s. K. DAS,
P. B. GAJENDRAGADKAR and K. N. WANCHOO JJ.)
Industrial Dispute-Bonus-Available surplus-Determination
cf-Full Bench formula-Basis-Applicability-Revision if required
-Prior Charges-Mode of calculation-Gross profits, ascertainment
cf-Rehabilitation charges, how determined-Gratuity fund, whether
can be claimed as prior charge-Distribution of surplus-Overtime
payment, if can be taken into consideration in awarding bonus.
For the year 1953-54, the employers pai"- bonus to the
workmen equal to three months' wages, but the workmen
demanded bonus equivalent to seven months and six months
basic wages with dearness allowance. The employers contended
that after making deductions for the prior charges from the
gross profits in accordance with the formula evolved by the Full
Bench of the Labour Appellate Tribunal in Mill Owners Associa- .
tion, Bombay v. The Rashtriya Mill Mazdoor Sangh, (1950) L.L.J.'
•
. 1247, there was no available surplus left an4 consequently the
Kapur].
r959
May 5.