Retrospective Application of an amended Procedural Law: Right of Action v. Right of Forum

Unless otherwise mentioned in the text of a statute, usually it has a prospective application. The main purpose behind such a principle is to avoid multiplicity of proceedings and litigation for the decided matters. However, this principle of prospective application is not applicable where a provision is of procedural nature. Such a prospective application is applicably only to the substantive part of a statute.

One such issue had come before the Supreme Court (“Court”) in the case of Ramesh Kumar Soni v. State of Madhya Pradesh wherein Court held that enactment of a procedural provision usually has a retrospective application. This is because of the fact that a person has a “vested right of action” but not a “vested right of forum”. In this case, following the passage of Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 1973, offences under Section 467, 468 and 471 of Indian Penal Code, 1860, were made triable by the Court of Sessions instead of a Magistrate of First Class. Subsequently, a reference was made to the M.P. High Court for clarifying the applicability of this amendment. By its order, Full Bench of the High Court held that all cases pending before the Court of Judicial Magistrate First before the amendment remained unaffected and were triable by the Judicial Magistrate First Class.

At a time when investigation was pending in his case, appellant, relying on this decision of Full Bench of the High Court, filed an application before the Judicial Magistrate for remission of his case ("his case was transferred to the Court of Sessions"). The same was rejected by the Judicial Magistrate and was consequently affirmed by the High Court. In appeal, Supreme Court held that a case must be deemed to be instituted only when the Court competent to take cognizance of the offence alleged therein does so. In this situation, no charge-sheet was filed before the court, and hence, no case was pending before the judicial magistrate when amendment came into effect. However, Supreme Court did not concur with the Full Bench  of High Court in relation to the prospective application of the Amendment Act.

As far as the question of retrospective application of amendment Act was concerned, Court referred to its decision in the case of Hitendra Vishnu Thakur and Ors. etc v. State of Maharashtra and Ors. (1994) 4 SCC 602, wherein it 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. Following were the principles laid down by the court:

(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.”

However, for the cases decided by a court before change in the law, the same shall not become illegal merely because an amendment has changed the forum of trial. If allowed, it will lead to multiplicity of litigation [See: Baburam v. C.C. Jacob and Ors. (1999) 3 SCC 362]. Hence, Court referred to its decision in the case of Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1636 whereby it held 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”

Apart from the applicability of an act, court also referred to the prospective application of a precedent, a doctrine invoked by this court for the first time in I.C. Golak Nath and Ors. v. State of Punjab and Ors. AIR 1967 SC 1643. By this principle, all actions taken contrary to the declaration of law, prior to the date of the declaration are validated (“in larger public interest”).

In conclusion, it can be said that though a person can move to new forum by virtue of change in law, he cannot do so if the case has already been decided. Otherwise, there will appear a problem every time a change in law is carried out. That would certainly not be in public interest.