Hon'ble Manish Mathur,J.

1. Heard Mr. Sameer Kalia, learned counsel for petitioner, Mr. Shiv Nath Tilhari, learned Additional Government Advocate for opposite party no.1 and Mr. Shishir Jain, learned counsel for opposite parties no.2 to 4.

2. In view of order being proposed to be passed, notices to opposite party no.5 stand dispensed with.

3. At the very outset, it may be indicated that no counter affidavit has been filed by the opposite parties till date but since dispute pertains only to applicability of law without the facts being disputed as such, the matter is being decided in absence of the counter affidavit with consent of learned counsel for parties.

4. Petition has been filed seeking a writ in the nature of prohibition to restrain further proceeding in Case Crime No.561 of 2012, State Versus Virendra Sharma and others under Section 4/5 Explosive Substances Act, 1908 registered in Police StationKotwali Mahoba, District Mahoba bearing case no.2796 of 2012 which is pending before opposite party no.4 i.e. the Chief Judicial Magistrate, District Mahoba. Further prayer for direction pertaining to transmittance of records to the court of competent jurisdiction at Lucknow has also been sought.

5. Learned counsel for petitioner submits that the petitioner is conducting the business of stone crushing and as such was validly and legally permitted and entitled to conduct blasting operations in the area of his validly executed mining lease issued by the State Government. It is submitted for the said purpose, stocks of explosive were required to be kept by the petitioner.

6. It is submitted that an FIR bearing Case Crime No.561 of 2012, under Section 4/5 of Explosive Substances Act, 1908 was Neutral Citation No. - 2022:AHC-LKO:29029-DB registered against the petitioner and three others in Police Station Kotwali Mahoba, District Mahoba on the basis of recovery memo prepared by the Station House Officer. The allegation made in the first information report was that upon information being received from the Police Informer pertaining to a cashe of explosive being kept in the premises of one Shree Chandra Mauli Bhardwaj without due permission and its likely misuse in the Forthcoming Assembly Election, 2012, certain recovery was made as a result of search conducted by the police. It is submitted that the first information report was lodged on 11.02.2012 whereafter charge-sheet was submitted on 15.06.2012 and cognizance was taken by the Chief Judicial Magistrate on 24.07.2012.

7. Learned counsel for petitioner submits that at the time of lodging of FIR and cognizance being taken by the court concerned, the Explosive Act was not included in the schedule to the National Investigation Agency Act, 2008 but during pendency of trial, the Explosive Act, 1908 was inserted in the National Investigation Agency Act by means of National Investigation Agency (Amendment) Act, 2019 (16 of 2019) with effect from 02nd August 2019. It is further submitted that subsequently vide notification dated 20.04.2021, the State Government with concurrence of the High Court designated the IIIrd Senior Most Court of District and Sessions Judge, Lucknow as Special Court having territorial jurisdiction over entire State of Uttar Pradesh for the trial of all offences as specified in the schedule appended to the National Investigation Agency Act, 2008 (hereinafter referred Act of 2008).

8. In terms of aforesaid, it has been submitted that once the Explosive Act, 1908 was inserted into the schedule of the Act of 2008 and Special Court has been constituted vide notification dated 20.4.2021, petitioner's trial and records are required to transmitted to the Special Court in terms of Section 13 read with Section 22(4) of the Act, 2008.

9. Learned counsel for petitioner has further elaborated that change of forum during pendency of trial pertains to procedural aspect and is therefore retrospective in nature. As such, even though the offence is said to have taken place prior to insertion of Explosive Act into the schedule of Act, 2008 but the change of forum created due to the amending Act of 2019, would have retrospective operation and therefore the Court of Chief Judicial Magistrate, Mahoba would cease to have jurisdiction which would vest only with Special Court constituted in terms of the Act of 2008.

10. Learned counsel has placed reliance upon the judgment rendered by Hon'ble the Supreme Court in the cases of Securities and Exchange Board of India versus Classic Credit Limited reported in (2018) 13 SCC 1 [LQ/SC/2017/1212] and Ramesh Kumar Soni versus State of Madhya Pradesh reported in (2013)14 SCC 696 [LQ/SC/2015/590] to buttress his submission.

11. Learned counsel appearing on behalf of opposite parties have refuted submission advanced by learned counsel for petitioner with the submission that FIR in the present case was lodged in the year 2012 with cognizance also having been taken by the court concerned on 24.07.2012. It is submitted that at the time of lodging of FIR and taking of cognizance by the court concerned, the Explosive Act had not been included in the schedule to Act of 2008. It is submitted that once cognizance of the case was taken in the year 2012, the amendment incorporating Explosive Act into the Act of 2008 in the year 2019 would not have any retrospective operation since it would pertain to creation of substantive rights which would not have any retrospective operation.

12. Learned counsel have also submitted that Section 22 (4) specifically provides transfer of cases to Special Court only in case investigation has been done under provisions of the Act of 2008 and since in the present matter, investigation was not in terms of the Act of 2008, Chief Judicial Magistrate concerned would be the competent court and not the Special Court.

13. Upon consideration of submissions advanced by learned counsel for parties and perusal of material available on record, the only question of law required to be adjudicated is as to whether cases in which cognizance has been taken by the regular courts under provision of an Act not included in the schedule to the National Investigation Agency Act, 2008 are required to be transferred to the Special Court Act upon subsequent inclusion of the offence under schedule to Act of 2008

14.. The provisions pertaining to jurisdiction of Special Courts and transfer of pending trials under the Act of 2008 are clearly indicated in Sections 13 and 22 of the said Act which are as follows:

"13. Jurisdiction of Special Courts. -

(1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.

(2) If, having regard to the exigencies of the situation prevailing in a State if,-

(a) it is not possible to have a fair, impartial or speedy trial; or

(b) it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or

(c)it is not otherwise in the interests of justice, the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State.

(3)The Supreme Court or the High Court, as the case may be, may act under this section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India, be supported by an affidavit or affirmation.

22 Power of State Government to 1[designate Court of Session as] Special Courts. -

(1)The State Government may 2 (designate one or more Courts of Session as) Special Courts for the trial of offences under any or all the enactments specified in the Schedule.

(2)The provisions of this Chapter shall apply to the Special Courts 1[designated] by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely-

(i) references to "Central Government" in sections 11 and 15 shall be construed as references to State Government;

(ii) reference to "Agency" in sub-section (1) of section 13 shall be construed as a reference to the "investigation agency of the State Government";

(iii) reference to "Attorney-General for India" in subsection (3) of section 13 shall be construed as reference to "Advocate-General of the State".

(3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is 1[designated] by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter.

(4) On and from the date when the Special Court is 1 [designated] by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is 1 [designated]."

15. Learned counsel for the opposite parties have laid much emphasis on Section 22(4) of the Act of 2008 to submit that transfer of pending trials to the Special Court are required only in case the offence has been investigated by the State Government Under provisions of this Act. It has been submitted that since investigation in the current case was not under provisions of the Act of 2008, there is no occasion for transfer of trial to Special Court, which as such would not have jurisdiction.

16. Section 13 of the Act of 2008 clearly indicates jurisdiction of Special Courts setup under the Act of 2008 and begins with a non-obstante clause to the effect that every scheduled offence investigated by the agency shall be tried only by the Special Court within whose local jurisdiction it was committed.

17. For the purpose of construing provisions of Section 13 of the Act of 2008, it is relevant to indicate that Section 22(2)(ii), clarifies that reference to agency in Section 13(i) is to be construed as a reference to the Investigation Agency of the State Government. As such, it is evident that investigation can be carried out by any investigation agency of the State Government and not necessarily the National Investigation Agency.

18. A bare comprehension of Section 13 of Act of 2008 indicates that for purposes of Special Court to have jurisdiction, the offence should be scheduled and investigated by the Agency. The term Agency as indicated hereinabove has already been explained under Section 22(2)(ii) to be an Investigation Agency of the State Government. Section 13 as such is clearly demarcated for purposes of trial of offences and not for the purposes of investigation of offences. The purport of Section 13 does not indicate that the offence should be a scheduled offence as on the date of investigation. Since Section 13 clearly pertains to trial of offences, the meaning and import of the said Section can readily be construed to mean that the offence investigated by the Agency should be a scheduled offence as on the date when the Special Courts are constituted. Giving a meaning contrary to the one indicated hereinabove would amount to inserting a provision which the legislature in its wisdom has not imported into Section 13 of the Act of 2008. The maximum of casus omissus cannot be supplied merely because a second view is possible.

19. So far as the submission of learned counsel for opposite parties is concerned that the transfer of cases to Special Court can take place only in the case of any offence investigated under provision of this Act is concerned, harmonious construction of Sections 13 and 22(4) of the Act of 2008 would clearly explain that Section 22(4) relates to investigation and trial prior to constitution of Special Courts but once the Special Courts have been setup, their jurisdiction is required to be seen in the context of Section 13 of the Act of 2008. As such, the aspect of transfer of cases investigated under provisions of this Act loses its relevance, since Section 13 of the Act of 2008 clearly indicates that the scheduled offence investigated by the Agency is to be seen as on the date of constitution of the Special Courts, which in the present case was on 21.04.2021 when the offence was clearly a scheduled offence after amendment being incorporated in 2019.

20. Another aspect of the matter is that change of forum is an aspect of procedural law and would have retrospective operation has enunciated by Hon'ble the Supreme Court in the case of Classic Credit Limited (supra) the relevant paragraphs are as follows:-

"49. We will now deal with the legality of the propositions canvassed, at the hands of learned counsel for the rival parties. In our considered view, the legal position expounded by this Court in a large number of judgments including New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840 [LQ/SC/1975/414] ; Securities and Exchange Board of India v. Ajay Agarwal, (2010) 3 SCC 765 [LQ/SC/2010/233] ; and Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 4 SCC 696, is clear and unambiguous, namely, that procedural amendments are presumed to be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. And also, that generally change of "forum" of trial is procedural, and normally following the above proposition, it is presumed to be retrospective in nature, unless the amending statute provides otherwise. This determination emerges from the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 [LQ/SC/1994/591] ; Ranbir Yadav v. State of Bihar (1995) 4 SCC 392, [LQ/SC/1995/384] and Kamlesh Kumar v. State of Jharkhand (2013) 15 SCC 460, [LQ/SC/2013/1101] as well as, a number of further judgments noted above.

50. We have also no doubt, that alteration of "forum" has been considered to be procedural, and that, we have no hesitation in accepting the contention advanced on behalf of the SEBI, that change of "forum" being procedural, the amendment of the "forum" would operate retrospectively, irrespective of whether the offence allegedly committed by the accused, was committed prior to the amendment."

21. The aforesaid aspect of retrospective operation of procedural law pertaining to change of forum has also been enunciated by the Supreme Court in the case of Ramesh Kumar Soni (supra) in the following manner:

"11. In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, [LQ/SC/1994/591] one of the questions which this Court was examining was whether clause (bb) of Section 20(4) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 introduced by an Amendment Act governing Section 167(2) Cr.P.C. in relation to TADA matters was in the realm of procedural law and if so, whether the same would be applicable to pending cases. Answering the question in the affirmative this Court speaking through A.S. Anand, J. (as His Lordship then was), held that Amendment Act 43 of 1993 was retrospective in operation and that clauses (b) and (bb) of sub-section (4) of Section 20 of TADA apply to the cases which were pending investigation on the date when the amendment came into force. The Court 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, in the following words:

"(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."

22. From the above aspect as well, it is apparent that change of forum as in the present case being part of procedural law, would have retrospective operation and as such, the matter is clearly cognizable by the Special Court constituted under the Act of 2008.

23. Another aspect which requires mention is that the Special Courts have been setup for speedy disposal of offences pertaining to the Acts indicated in the schedule. As such, also it would be prudent that the Special Court should hear matters relating to offences incorporated in the schedule to the Act of 2008.

24. Considering the aforesaid, it is evident that in the present case offence being related to a scheduled offence as on the date of constitution of Special Court is required to be heard by the Special Court created under the Act of 2008.

25. Consequently, the writ petition succeeds and is allowed issuing a writ in the nature of Prohibition, restraining the opposite party no.4 (Chief Judicial Magistrate, Mahoba) for proceeding further in Case No.2796 of 2012, pertaining to Case Crime No.561 of 2012, Section 4/5 Explosive Substances Act, 1908, Police Station Kotwali Mahoba, District Mahoba, bearing Case No.2796 of 2012 pending before Court of Chief Judicial MagistrateMahoba.

26. A further writ in the nature of mandamus is issued commanding opposite party no.3 (Sessions Judge, District Mahoba) to transmit the relevant records of case no.2796 of 2012 to the Special Court constituted under the National Investigation Agency Act, 2008 at Lucknow.

27. The Registry is directed to circulate the order to the District Judges after obtaining approval from Hon'ble the Chief Justice.