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Emperor Vs. Kantilal Mangaldas - Court Judgment

LegalCrystal Citation
Decided On
Case NumberCriminal Application No. 274 of 1943
Reported in(1944)46BOMLR54
RespondentKantilal Mangaldas
DispositionApplication dismissed
ordinance xix of 1943-validity of.;ordinance xix of 1943 is a valid ordinance. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her - will was not only unnatural but was surrounded by a large number of suspicious circumstances held, it.....j.c. shah, j.1. the question that arises in this case is, whether ordinance xix of 1943 is a valid ordinance. it was promulgated on june 5, 1943, to repeal ordinance ii of 1942, which established special criminal courts in india for trial of certain classes of offences. ordinance ii of 1942 was held to be intra vires by the bombay high court in emperor v. shreekant pandurang ketkar : (1943)45bomlr323 , though the calcutta high court arrived at an opposite conclusion in banoari lal v. emperor : air1943cal285 as regards sections 5, 10, 14 and 16. eventually the federal court of india held in emperor v. banoari lal that sections 5, 10 and 16 of the ordinance were ultra vires. this decision was given on june 4, 1943. the governor general deliberated overnight and promulgated ordinance xix of.....

J.C. Shah, J.

1. The question that arises in this case is, whether Ordinance XIX of 1943 is a valid Ordinance. It was promulgated on June 5, 1943, to repeal Ordinance II of 1942, which established Special Criminal Courts in India for trial of certain classes of offences. Ordinance II of 1942 was held to be intra vires by the Bombay High Court in Emperor v. Shreekant Pandurang Ketkar : (1943)45BOMLR323 , though the Calcutta High Court arrived at an opposite conclusion in Banoari Lal v. Emperor : AIR1943Cal285 as regards Sections 5, 10, 14 and 16. Eventually the Federal Court of India held in Emperor v. Banoari Lal that Sections 5, 10 and 16 of the Ordinance were ultra vires. This decision was given on June 4, 1943. The Governor General deliberated overnight and promulgated Ordinance XIX of 1943 the next day. The new Ordinance accepted the decision of the Federal Court in so far as it repealed Ordinance II of 1942. It also proceeded to terminate pending proceedings; but it went further to continue sentences passed under the repealed Ordinance, though it made provision for appeal or revision from those sentences. The effect of the Ordinance is that from June 5, 1943, Ordinance II of 1942 ceased to be operative, all pending proceedings came to an end, persons who had acted under the repealed Ordinance were indemnified against acts done by them. Section 3 of the Ordinance continued the sentences already pronounced, and provision was made for appeals to the High Courts and Sessions Court.

2. The history of the emergency legislation in India up to October 26, 1942, is set out at pp. 324 to 326 of Vol. 45 of the Bombay Law Reporter. As held in that case the Bombay High Court was of opinion that Ordinance II of 1942 was valid, a view which was subsequently overruled by the Federal Court on the ground that it was a delegation of authority to prosecute at the sweet will of an executive authority.

3. The preamble to Ordinance XIX of 1943 says : ' Whereas an emergency has arisen which makes it necessary to repeal the Special Criminal Courts Ordinance, 1942 (II of 1942).' That emergency is the decision of the Federal Court in Emperor v. Benoari Lal. The Ordinance is quite harmless so far as its Sections 1 and 2 are concerned. The vice of the Ordinance lies in its Section 3. The marginal note to the section says : ' Confirmation and continuance, subject to appeal, of sentences.' To bring the section into effect it must be assumed that there was a notional trial before a notional Judge and in a manner competent under the Code of CriminalProcedure. The whole machinery which imposed the sentence has been swept away, and yet the sentence is to have effect as if it was passed by a Court of competent jurisdiction. Under Sub-section (2) of Section 3 the word 'sentence' is used in a variety of different meanings. It cannot be assumed that the drafts-man of the section was not aware that no appeal was provided in the first Ordinance. The sub-section provides appeals against sentences, and not against convictions. There can be no sentence continuing, when the tribunal which imposed the sentence is found incompetent to pronounce it. The word ' conviction ' is nowhere to be found in the section. The words ' conviction ' and 'sentence' have different legal connotations. A party may file an appeal against a ' sentence ' only if it is wrong or excessive. ' Conviction ' means that the accused is guilty: ' sentence' is the order consequential to the conviction. Even the Criminal Procedure Code has distinguished between conviction and sentence : see Sections 407, 408, 411. The distinction between ' conviction ' and ' sentence' is much the same as that Between ' judgment' and 'decree' under the Civil Procedure Code, 1908. The term 'sentence' is used in Section 3(1) as meaning the process of suffering penalty. In Section 3(2) it is used in quite a different sense. If the word 'sentence' in the section means conviction, then the Ordinance is an attempt to get over the judgment of the Federal Court. It is not open to the Governor General to enact that the conviction and sentence pronounced illegal by the Federal Court are valid.

4. It serves no useful purpose to call in aid what is being done in England. The British Parliament is a sovereign legislature. Legislation enacted by it cannot be challenged in a Court of law. Legislation by the Indian Legislature, however, can 'be examined by a Court. It is held by the Federal Court that the delegation of authority attempted by Ordinance II was illegal. It also said that the appointment of Special Courts for the trial of certain cases is illegal. It is not now open to the Legislature to say that convictions and sentences passed by such Courts are legal.

5. The Indian Legislature can give retrospective effect to certain legislation; but it cannot go further and say that the sentences passed under an invalid Ordinance are legal. Here the Courts were constituted by an order of an executive officer. The new Ordinance cannot validate sentences passed by such Courts. It says in effect that sentences passed by a Court that has no existence are valid. Where the constitution of a Court as well as the procedure followed by it are held illegal, how can the sentence passed by such a Court stand. If it was not open to the Governor General to constitute a special Court, then equally it was not competent to him to validate sentences passed by such a Court.

6. What Section 3(1) of the new Ordinance seeks to do is to validate sentences which can be validated only if the conviction is valid. If the conviction is not valid, the sentence has nothing to stand upon. If the Court has no jurisdiction to try a case, then the sentence passed by it in such a case has no existence in point of law. Under the Criminal Procedure Code ' conviction ' and ' sentence ' are so co-related that the one cannot stand in the absence of the other. If a sentence includes a conviction, then conviction being invalid cannot justify a sentence following upon such conviction.

7. I submit that the new Ordinance is invalid as it seeks to override thedecision of the Federal Court. It is not permissible under the Government of India Act to do so. If the Governor General is not governed by any of the legislative lists, then he becomes a sovereign legislature.

8. In exercising its jurisdiction under Section 3(2) how will the High Court treat a case. Is it a notional trial by a notional Court both of which have no existence in point of fact at all. If we are to assume that what has been done has been properly done, where are we to stop. If there is no conviction, there is no sentence.

9. The continuation of the imposition of penalty is not a matter of procedure. All provisions of Ch. XXVIII of the Criminal Procedure Code, which deal with execution of sentences, stop at the passing of the order or the execution of the order of the Court. The Ordinance XIX attempts to direct a continuation of penalty. To that extent it has nothing to do with procedure. The procedure is the procedure of the Court. The Ordinance treats the sentence as valid and seeks to continue it.

10. I rely on Sushil Kumar Bose v. Emperor (1943) 47 C.W.N. 757, a decision of the Calcutta High Court, which holds Section 3 of the Ordinance to be ultra vires. There is also a decision of the Patna High Court (1943) Decided by Brough and Sinha JJ., on July 20, 1943 (Unrep. Pat.) to the same effect.

11. The Ordinance does give an illusory right of appeal, but contains no provision as to reference to the High Court in the case of a sentence of death. In such a case if the accused does not choose to appeal, the jailor cannot hang him until the sentence is considered by the High Court.

12. There is no power in the Governor General to say that a trial has taken place which in law has not taken place at all. If the appointment of a Judge is invalid, then all proceedings before such Judge are invalid.

13. Section 3 only provides in another form a protection to judges and jailors who have acted under the old Ordinance. The continuation of a sentence passed by an incompetent tribunal is no criminal law, nor even procedure at all. It does not fall within any of the legislative lists at all. Item (1) in List II of the Government of India Act enables the legislature to enacts that certain persons be detained, but it has no power to validate sentences which are initially invalid.

14. In the present case Mr. Vyas, who was the special Judge, sat as a Court, examined witnesses, held that the applicants were guilty and pronounced sentences upon them. The Federal Court held all these proceedings ultra vires. The Judge had no authority to hold the trial and to pronounce sentences, Between April 21, 1943, and June 5, 1943, the entire proceedings were illegal. The new Ordinance accepts this position up to the stage of pronouncing of judgment, but it says that sentences passed in such proceedings are valid. If the previous proceedings are void, the sentences also are void. The sentences cannot be validated under any of the legislative lists.

The case of Titonko v. Attorney-General of Natal [1907] A.C. 93 referred to by Mr. Justice Rajadhyaksha, has no application at all. It was a case of Court-martial. There is nothing to show that the constitution of the Court was held illegal. The point was not taken up that the Act was ultra vires. The Indemnity Act was passed as usual. No question was raised in the Privy Council that the sentence was illegal. In the present case, even the mode of trial is illegal. The question of the competency of the Government to pass the Act was not raised in that case. '

15. The sentences passed here are void. They cannot be validated under any provision of the Government of India Act. If the previous proceedings are not valid, then there is no legal conviction. The Governor General can say that certain persons shall be detained, but he cannot say that the procedure followed is invalid and say at the same time that the sentence passed is valid.

16. In enacting Section 2(1) the Governor General is acting beyond the limits of his authority. He is not the Judge and does not purport to be one. The section does not Bear the construction that it is enacted in the interest of public order.

17. Incidentally a question arises how far the Governor General is entitled to amend the provisions of the Criminal Procedure Code. The Code was enacted prior to Section 292 of the Government of India Act. Unless amended or repealed by a competent Legislature, the Code would stand. The whole scheme of the Code is that a person can be put on his trial at the instance of a private person or a public officer. Then follows either an inquiry or a trial. Then comes the conviction and sentence. The Governor General cannot say that all this procedure will be wiped out and that a person shall be deemed to be tried by a proper Court under an appropriate procedure. He cannot amend the. Criminal Procedure Code. He may wipe out the whole Code and provide a new procedure altogether. The point was considered incidentally by the Calcutta High Court in Shib Nath v. Porter : AIR1943Cal377 . There the point arose with reference to the validity of Ordinance XIV of 1943 passed with regard to Rule 26 of the Defence of India Rules, 1939. Mitter J. has taken the view that so far as Section 72 of the Government of India Act, 1935, is concerned there is no provision allowing the Governor General to amend any provision of a statute already passed, though he is entitled to legislate on subjects on which there is no legislation. Where there is a complete Code like the Criminal Procedure Code, the Governor General cannot say that a person shall be deemed to be tried by persons who had no authority to hold the trial at all.

18. The Governor General cannot override the judgment of the Federal Court, and validate sentences without validating convictions. To the extent that he has sought to do it by evading the provisions of the Criminal Procedure Code, the provisions of Section 3(2) of the new Ordinance are ultra vites.

19. N.P. Engineer. One of the legitimate and recognised functions of Legislature is to validate various Acts as well as legislative measures, which are doubtful or are void and have been declared to be void by a Court of law. When the House of Lords declared null and void numerous marriages celebrated in Ireland by Presbyterian Ministers, such marriages were validated by statute. When Sir Henry Duke held in Keyes v. Keyes and Gray [1921] P. 204 that divorce Courts in India had no jurisdiction to decree divorce in the case of persons domiciled in Great Britain, the Indian Divorce Validating Act was passed, validating retrospectively decrees which were invalid. By statute, taxes and war charges which were ultra vires and void have been validated. Indemnity Acts have validated sentences by Military Courts declaring such sentences to have been within the jurisdiction of the Court.

20. The Indian Legislature has plenary powers of legislation within the ambit of the Constitution Act and subject to the restrictions contained in that Act. Legislation by Ordinances promulgated toy the Governor General is given the same effect as ordinary legislation and the ambit as to the subject-matter is the same in both cases.

21. The Ordinance in question comes under items 1 and 2 of the concurrent legislative list and also items 1 and 2 of List II. The phrase used is ' Criminal Law ', which according to the Privy Council connotes ' Criminal law in its widest sense' : See Attorney General for Ontario v. Hamilton Street Railway [1903] A.C. 524 Proprietary Articles Trade Association v. Attorney General for Canada [1931] A.C. 310 and Attorney General for British Columbia v. Attorney General for Canada [1937] A.C. 368

22. In Emperor v. Banoari Lall the Federal Court has not held that the constitution of Special Courts as such is ultra vires. What it has held is that the precaution of repealing Sections 5, 28 and 29 of the Criminal Procedure Code had not been taken in promulgating Ordinance II of 1942. The Governor General could have by Ordinance provided prospectively that persons who now stand sentenced should be tried by Special Courts and he could have described such persons and even named them. There would have been nothing wrong in it. He can also validate the trials of and sentences inflicted on such persons. All that Ordinance XIX of 1943 has done is that sentences passed under the old Ordinance should take effect as if the trial had taken place before a proper Court and in conformity with the criminal law. So far as the Indian Legislature is concerned, or for the matter of that the Governor General is concerned, there is no limit to its power of making laws except those laid down by the Constitution Act.

23. By reason of the Federal Court decision Government was confronted with three problems : (1) it was impossible to continue the Special Courts and proceed with new or pending trials, (2) something had to be done about the sentences already passed toy such Courts, and (3) the officers who had acted in such Courts had to be protected against liability. Point No. 1 was met by Sections 2 and 4 of the impugned Ordinance. The tribunals created by Ordinance II of 1942 were put an end to ; all pending proceedings were declared void. Point No. 3 was covered by the indemnity provided by Section 5. As regards point No. 2 the difficulty was what was to be done to sentences partly gone through. If nothing was done, the persons undergoing sentences would be let off immediately. There was nothing to prevent this being done except the enactment of Section 3. The only alternative left was to release the convicted persons, to re-arrest them, and to bring them to trial before ordinary Courts. They would thus be undergoing a second trial. If the Privy Council ultimately held Ordinance II of 1942 to be valid and the Special Courts to have been properly constituted, such second trials would be illegal and serious cor plications would follow. Those were the mischiefs to be remedied. They were remedied by the enactment of Section 3. The section gives effect to such sentences subject to certain provisions.

24. In England the Indemnity Act was passed in 1920 (10 & 11 Geo. V, c. 48). Its preamble shows its scope, which is ' An Act to restrict the taking of legal proceedings in respect of certain acts and matters done during the war, and provide in certain cases remedies in substitution therefor, and to validate certain proclamations, orders, licenses, ordinances, and other laws issued, made, and passed, and sentences, judgments, and orders of certain Courts given and made during the war.' Section 5 of that Act provides for validation of sentences. The sentences validated were those passed during the war by ' any military court' or ' by any court established by the authority administering any territory in the occupation of any of His Majesty's Forces during the war for the administration of justice within such territory.' That is, it dealt with sentences passed by Courts established by the occupying forces without any authority and just to meet the exigencies of the war. Before the enactment of the present Constitution Act, the Governor General of India had promulgated, on August 26, 1921, Ordinance II of 1921, Section 21 of which validated martial law sentences prior to the proclamation of martial law. The section provided : ' Any sentence passed in any respect of any contravention of a regulation or order made or issued within the same period by any officer acting in the exercise of military control for the purpose of providing for the public safety or the maintenance or restoration of order shall be deemed to be...valid.' This Ordinance was made under the old Constitution Act of 1915, Section 72 of which permitted promulgation of Ordinance for 'the peace, and good government'-an expression explained by the Privy Council in Riel v. The Queen (1885) 10 A. C. 675

25. In approaching the construction of Ordinance XIX of 1943 one must bear in mind the observations made by Viscount Birkenhead L.C. in Viscountess. Rhonddds Claim [1922] 2 A.C. 339 . The words of the statute are to be construed so as to ascertain the mind of the Legislature from the natural and grammatical meaning of the words which it has used, and in so construing them the existing state of the law, the mischiefs to be remedied and the defects to be amended, may legitimately be looked at together with the general scheme of the Act.'

26. The position was this. Certain sections of Ordinance II of 1942 were declared ultra vires by the Federal Court. The Government filed an appeal to the Privy Council from that decision. It was found necessary to make some provision with respect to sentences passed by Special Courts. For, suppose that the Privy Council held subsequently that the Ordinance was valid, what would happen to the accused sentenced to imprisonment as a result of the subsequent trial ?

27. The judgment of the Calcutta High Court in Benoari Lal v. Emperor : AIR1943Cal285 does not say that there was no power to legislate to the effect: the Ordinance has done. They however proceed to construe the sections in a particular way. Section 3(2) in no way affects Section 3(2). If no right of appeal had been given, could it have been said that the Sub-section (1) was invalid. It was pointed out by the Federal Court that there was no provision for appeal under the old Ordinance. The new ordinance therefore gave much wider right of appeal. It was questioned by the other side whether the appellant would on such appeal be allowed to go into questions of fact in those cases which ordinarily would be tried by jury. The position however is that the right of appeal given to the accused has no bearing on the question of the validity of sentences. The Government has simply continued the sentences subject to the right of appeal or revision. The judgment of the Calcutta High Court is not correct. There has been a notional trial. Elastic rights of appeal have been given. The introduction in Section 3(1) of the words 'as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure ' means as if the trial had been in accordance with the provisions of law or as if the Court by which the accused have been tried had jurisdiction according to law. It was competent to the Governor General to make such a provision.

28. Secondly, there was no illegality in giving the right of appeal. The Government simply made a provision for appeal in favour of the accused. The right of appeal was not given in consideration of the sentences being made effective.

29. It is contended that in promulgating the impugned Ordinance the Governor General has tried to do indirectly what he could not do directly. This is not correct. The Governor General has not tried to keep up the special tribunals. The scheme of Ordinance II of 1942 fell through because certain sections of the Criminal Procedure Code were not repealed. All that the Federal Court did was to point out defects in the machinery. If it is not ultra vires to have special tribunals, it is not ultra vires to provide that sentences passed by such tribunals shall have and continue to have effect. It is not the case that somebody is trying to do indirectly an ultra vires act which has been declared void. The absence of power to create such a tribunal is one thing. An improper and defective exercise of the power conferred is another thing. If this view is correct then the Governor General is at liberty to make provision for making sentences effective. The objections which the Federal Court found as to Ordinance II do not apply to Ordinance XIX.

30. There are infirmities in the judgment of the Calcutta High Court. In the first place many an accused would prefer to undergo the balance of the sentence than face a new trial. It says that the accused should be released and then re-arrested, In so saying it refuses to give effect to the words of Section 3. Once we remove from our mind the ideas of ' illusory right of appeal' and. ' notional trial', the words of the section mean what they say. There is no reason why the grammatical sense of the words used should not be given effect to. The expression 'shall be deemed' in Section 3(3) implies that it was not so in fact but shall be taken as having been such. The very fact that a validating Act is necessary demonstrates that the previous legislation is not valid. Sometimes it is undertaken to remove doubts. The last point is that the Governor General had no power under Section 72 of the Government of India Act, 1915, to make the Ordinance. The Ordinance making power is however included in Sections 311 and 292 of the Government of India Act, 1935, under ' legislature.' The term ' legislature' is defined in the Interpretation Act, 1920 (52 & 53 Vic. c. 63), Section 18(1) as 'when used with reference to a British possession, shall...mean the authority, other than the Imperial Parliament or Her Majesty the Queen in Council, competent to make laws for a British possession.' The power to make laws by Ordinance is a legislative authority.

31. By the India and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo. VI, Section 33) not only the time-limit of six months was removed but the restrictions imposed by Section 111 of the Constitution Act were also removed. The powers of the Governor General to make Ordinances are in fact wider than the powers of the Indian Legislature to enact Acts in the ordinary way.

32. As held in The United Provinces v. Atiqa Begum [1940] F.C.R. 110 the entries in the three legislative lists are not to be read in a restricted sense.

33. In 1930 the Governor General promulgated an Ordinance called the Sholapur Martial Law Ordinance (IV of 1930), Section 11 of which validated sentences passed ' by any officer acting in the exercise of military control for the purpose of providing for the public safety or the restoration or maintenance of order as if it were a sentence passed under this Ordinance.' The valk dity of this Ordinance was examined by a full bench of the Bombay High Court in Emperor v. Chanappa Shantirappa I.L.R. (1930) 55 Bom. 263 and it was held that on account of the Ordinance validating the sentences passed by the Military Courts it was not open to the High Court to question the validity of sentences. See remarks of Beaumont C.J. at p. 286, Madgavkar J. at p. 289, and Blackwell J. at p. 303.

34. The impugned Ordinance does not amend or repeal any Act of Legislature. Even if it did so, Section 292 of the Government of India Act empowered an appropriate legislature to amend an Act. The Governor General when exercising his Ordinance-making power is an appropriate legislature empowered to amend an Act of Legislature. The legislative practice also points to the same conclusion. Section 72 of the Government of India Act 1915 is continued by being inserted in the ninth schedule to the present Constitution Act. The corresponding provision is to be found in Section 23 of the India Councils Act. Some of the Ordinances passed by the Governor General under Section 23 of the India Councils Acts and Section 72. of the Government of India Act, 1915, have repealed Acts of Legislature with retrospective effect.

35. The impugned Ordinance is not ultra vires. Even the Calcutta High Court does not say so. On the construction of Section 3 the Calcutta view is not sound. The vital fact is whether the persons already convicted should undergo the sentences passed upon them. The words 'shall have effect' in Section 3 are enough to validate the sentences.

36. The recent decision of a full bench of the Madras High Court in Subbarayan, In re Sincereported is in my favour.

37. J.C. Shah, in reply. The three Privy Council cases relied on by the Advocate General do not carry the case any further. They say what is declared as criminal law shall be cri[1943] 2 M.L.J. 249minal law. They do not help the Crown in estab-lishing that what is done here is criminal law. These cases have no application here. In the present case the convictions of persons have been declared to be invalid and yet those persons are continued to be detained in prison.

38. The Advocate General has argued that the Governor General was competent to enact that persons convicted under Ordinance II of 1942 should be detained. This is not what the new Ordinance purports to do. It says that sentences passed under the repealed Ordinance shall have effect as if passed by a proper tribunal. The fact that the Governor General could have been justified in detaining persons already convicted is no excuse for passing the Ordinance.

39. What the English Indemnity Act of 1920 can do in England is no pretext for a similar enactment by the Indian Legislature. The distinction lies in the fact that the former is enacted by the British Parliament, which is a sovereign legislature, and the enactments of which cannot be challenged in a Court of law. The Indian Legislature has, however, a delegated authority which can act within certain limits, and if it goes beyond those limits, its action can be examined by a Court of law.,

40. In Tilonko v. Attorney General of Natal [1907] A.C. 93 Lord Halsbury L.C. nowhere says that if the impugned Act were beyond the competence of the Legislature the Courts are powerless to go into the question of its validity.

41. It is argued that the powers of the Indian legislature and the Governor General are not only the same, but that the latter has wider powers to make Ordinances. I submit that the powers of the Governor General to make Ordinances are no more than those of the Indian Legislature to enact Acts.

42. I admit that the Governor General may give a retrospective effect to an Ordinance. Here, the Ordinance does not seek validation of doubtful executive acts, but it effectuates an Ordinance which the Federal Court has declared to be illegal. The Federal Court came to the conclusion that sentences passed under Ordinance II of 1942 were illegal. The new Ordinance seeks to validate illegal acts and not doubtful acts. The case of The United Provinces v. Atiqa Begum [1940] F.C.R. 110 has, therefore, no application.

43. The case of Emperor v. Chanappa Shantirappa I.L.R. (1930) 55 Bom. 263 is entirely different from the present case. There the Ordinance, itself validated sentences passed by military Courts before the date of the Ordinance. What happened there was that military Courts had convicted and sentenced certain persons at Sholapur before any Ordinance was passed. Then came the Ordinance which said that those persons should foe deemed to be tried by ordinary Courts. There there was no tribunal at all.

44. As regards the legislative practice it might be that certain Ordinances which made amendments in legislative Acts were not called in question in Courts of law. This fact, however, does not lead to the inference that the Ordinance is valid.

45. What has happened here is that all proceedings taken before Special Courts are declared invalid. The Governor General passes an Ordinance that although the trials and convictions of persons tried by such Courts are invalid the sentences passed upon those persons are valid as if they were properly tried and convicted. So far as this is sought to be done, Ordinance XIX of 1943 is ultra vires.

John Beaumont, Kt., C.J.

46. These are rules issued on behalf of various persons who, were convicted by the Special Courts established under the Special Criminal Courts Ordinance No. II of 1942, and the question, which arises in all of them, is whether the validating Ordinance No. XIX of 1943 is valid. In all the cases the trials were remitted by the District Magistrate to the Special Judge of the District, and he convicted the various accused, and sentenced them to different sentences.

47. On June 4, 1943, the Federal Court held that Ordinance II of 1943 was ultra vires and invalid as to Sections 5, 10 and 16, and the effect of that decision was that all the convictions by the Special Judges appointed under that Ordinance were invalid, and necessarily all the sentences passed were also invalid. On June 5, that is the day after the Federal Court's decision, Ordinance XIX of 1943, which is the impugned Ordinance, was promulgated by the Governor General under Section 72 in the ninth schedule of the Government of India Act. The Ordinance by Section 2 repeals the Special Courts Ordinance II of 1942. Section 4 directs that proceedings in all cases pending under the Ordinance, the trial of which had not concluded, are to be void, and the cases are to be transferred to the normal Courts; and Section 5 grants indemnity to persons who had acted under the repealed Ordinance. No difficulty arises under those sections. The difficulty arises under Section 3, which is in these terms. [The section is set out]

48. What it really comes to is that sentences passed by the Special Courts are to have the same effect as if the trial, at which such sentences were passed, had been held under the ordinary criminal law, arid the accused are to have the same right of appeal against the sentence passed at such a notional trial as there would have been if the notional trial had been the real trial. On these applications under Section 491 of the Criminal Procedure Code we are not really concerned with Sub-section (2), which gives the right of appeal, we are only concerned with the validity of sentences. But in the case before the Calcutta High Court, to which I will refer presently, it was suggested that serious difficulties were likely to arise under Sub-section (2), and that the right of appeal thereby conferred is largely illusory, and it was held that the anticipated difficulties arising under Sub-section (2) may properly influence the construction to be placed on Sub-section (1). With regard to that argument I will only say that I do not agree that the right of appeal conferred by Sub-section (2) is illusory. No doubt, when an actual appeal is allowed to be brought against a purely notional trial, some anomalies may arise with which the Courts which hear the appeals will have to deal. Particular stress was laid by the Calcutta High Court on the difficulties which may arise in a case which under the normal law would have been tried by a jury. It was pointed out that under Section 418 of the Criminal Procedure Code, on a trial by jury, an appeal lies on a matter of law only, and under Section 423 (2) it is provided that the Court has no power to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him. No doubt, it would be beyond the competence of any human tribu-nal to determine whether an imaginary verdict of a mythical jury was influenced by misdirections in a summing up which was never delivered, but the answer to such difficulties may well be that the provisions of the Criminal Procedure Code, to which I have referred, have no validity, unless there has in fact been a trial by a jury, and in fact a verdict has been given on facts by which the Appeal Court can be bound. In my view any possible difficulties, which may arise under Sub-section (2), can have no bearing on the construction of Sub-section (2), the language of which seems to me to be perfectly clear.

49. The question, which arises for decision is whether an Ordinance validating sentences of Courts, which are not legally constituted, and, therefore, not legally capable of passing the sentences, is within the competence of the Governor General. It was pointed out that Section 3 does not purport to validate the convictions; it only validates the sentences. But in dealing with habeas corpus applications under Section 491 of the Criminal Procedure Code, it is the sentence with which the Court is concerned, and not the conviction. It was suggested further that Section 3 is invalid, because it seeks to set aside, and treat as of no effect, the decision of the Federal Court by which the Government of India is bound. There would be considerably more force in that argument if the section had provided that the convictions passed by these illegal Courts were valid, and it was probably to forestall such an argument that the convictions were not validated, though the sentences were. It seems to me impossible to argue that this Ordinance sets at naught the decision of the Federal Court. It repeals the Special Courts Ordinance II of 1942, so that that Ordinance has gone, even if an appeal to the Privy Council from the decision of the Federal Court succeeds. It accepts the Federal Court's decision that the convictions by the Special Courts are invalid. All that the Governor General does by Ordinance XIX is to say that it is necessary in the interests of the peace and good government of British India that persons, who have been found by officials of the State, normally competent to exercise judicial functions, though not competent in the particular cases involved, to have been guilty of acts prejudicial to public safety, should continue to suffer the sentences which those officials thought appropriate, unless the sentences are altered in appeal or revision by the ordinary Courts. If the Governor General thinks that such action is necessary in the interests of the peace and good government of British India, his action does not in any way conflict with the decision of the Federal Court as to the invalidity of trials by the Special Courts.

50. The only point, therefore, which we have to consider is whether the validating of sentences illegally passed is competent to the Governor General. It has been pointed out by the learned Advocate General that legislation validating sentences not passed according -to law is not unusual. Reference was made to Section 5 of the Indemnity Act, 1920, and to the decision of the Privy Council in Tilonko v. Attorney General of Natal [1907] A.C. 93 in which the Privy Council was dealing with a Natal statute validating sentences passed by Courts-martial, and also to the observations of Sir Maurice Gwyer in The United Provinces v. Atiqa Begum [1940] F.C.R. 110, particularly at pp. 134 and 136.

51. In India the question turns, first of all, on the construction of Section 72 in the ninth schedule of the Government of India Act, and under that section an Ordinance passed by the Governor General in the circumstances covered by the Schedule has the like force of law as an Act passed by the Indian Legislature. The restriction in the section providing that the Ordinance is only to remain in force for six months has been removed during the pendency of the present war, so that the question narrows itself into this : Whether a validating enactment of this character is within the competence of the Indian Legislature. That depends on whether such enactment falls within any of the three lists in the Seventh Schedule of the Government of India Act. The Central Government can at the present time legislate in matters included in any of the three lists. I fed no doubt that a validating enactment of this character falls within items 1 and 2 of the Concurrent List III as coming within the general headings ' Criminal Law ' and ' Criminal Procedure.' I think it would also come within item 1 of the Provincial List II as covered by ' the administration of justice.' Therefore, I feel no doubt that this validating Ordinance is one which it was competent to the Governor General to pass.

52. The question has been considered in three other High Courts : Calcutta, Madras and Patna. In the Calcutta High Court in Sushil Kumar Bose v. Emperor 47 C.W.N. 757 the majority of the Court came to the conclusion that Section 3 of the impugned Ordinance only validated sentences up to the time at which an appeal or revision application against the sentence could be heard, and that it would be the duty of any Court exercising the appellate or revisional jurisdiction to set all the sentences aside, and direct that the accused person be, thereupon tried under the ordinary law of the land. I must confess that I share the difficulty felt by the Patna and Madras High Courts in seeing how the conclusion of the Calcutta High Court can be reconciled with the language of Section 3 of the Ordinance. There is nothing whatever in Section 3 to suggest that the period for which the sentences were validated was to expire as soon as an appeal or a revision application was heard, and if that was the effect of the Ordinance, it would render difficult the position of a person convicted by a Special Court who did not desire to appeal from the sentence, and preferred to serve out the sentence, rather than run the risk of a new trial and, possibly, an enhanced sentence. There is, moreover, nothing whatever in Section 3 to suggest that in all appeals and revision applications under the section the Court is bound to allow the appeal, and set the convictions aside, and direct the accused to be tried under the normal law of the land. If the Ordinance had so directed, difficulties would have arisen in case an appeal to the Privy Council against the Federal Court's decision were successful, in which case any further trial of the accused would presumably be a nullity. Moreover, as the Patna High Court has pointed out, if the intention of the Governor General was that all the persons convicted by the Special Courts should be set at liberty, and retried by the normal Courts, it was quite unnecessary to pass Section 3, because if that section has-been omitted, all persons convicted by the Special Courts would have been released, and there would have been no legal objection to those persons being prosecuted againunder the Criminal Procedure Code. I am not, therefore, prepared to accept the view of this Ordinance which was taken by the Calcutta High Court.

53. The Madras and Patna High Courts both considered that Ordinance XIX was valid, and as I agree with their decisions and the reasons given by them, and as those Courts have discussed in considerable detail the various matters which have been argued before us, I do not think it necessary to cover again the grounds covered by those decisions. I agree particularly with the reasoning in the judgment (if I may say so, the admirable judgment) of Brough J. in the Patna Court.

54. In my judgment, Ordinance XIX of 1943 is valid, and all these rules therefore, must be discharged.

Lokur, J.

55. I agree and have very little 'to add. It is now well settled by the ruling of the Privy Council in Bhagat Singh v. The King Emperor (1931) L.R. 58 IndAp 169 that under Section 72 in the ninth schedule of the Government of India Act, 1935, which authorises the Governor General, in cases of emergency, to promulgate Ordinances for the peace and good government of India, the Governor General alone is the sole Judge of whether a state of emergency exists and whether the Ordinance conduces to the peace and good government of British India as contemplated by the section. It is also settled by Emperor v. Benoari Lall that the Central Legislature has power at present to make laws with respect to any matter in any of the three lists in the Legislative Lists given in the seventh schedule to the Government of India Act, and, as held in Keshav Talpale v. Emperor ., the Governor General can also, und er Section 72, make and promulgate Ordinances in respect of any such matter. In Ordinance XIX of 1943 the Governor General has announced that an emergency has arisen to make that Ordinance and his discretion in the matter cannot be questioned by us. That emergency was evidently the ruling of the Federal Court in Emperor v. Benoari Lall , that the setting up of the Special Courts under Ordinance II of 1942 was ultra vires and, therefore, the conviction and the sentences passed by those Courts were without jurisdiction. Accepting that decision, the Governor General abolished those Courts, but has given effect to the sentences passed by them by Section 3(2) of Ordinance XIX of 1943. In doing so, he has not in any way flouted the decision of the Federal Court. What he has stated in effect is : 'I now know that the Special Courts had no jurisdiction to try the accused persons sent to them and, therefore, the proceedings held by them are not judicial proceedings and the conviction of those persons is illegal. But they, as the servants of the Crown, have made an inquiry into the accusations made against those persons in the manner intended by me and have come to the conclusion that they have committed the illegal acts imputed to them. Hence, though their conviction cannot stand, I think it necessary for the peace and good government of India that they should undergo the sentences proposed by them.' The Governor General has, therefore, ordered that the sentences should be given effect to. He might have asked the Provincial Government or any officer to find out whether certain persons had committed certain illegal acts and might have issued an order as to how they should be dealt with even without a formal trial; if such a course was deemed by him to be ne- cessary in the interests of peace and good government of India. For validating the sentence it is not necessary that the conviction preceding it also should be validated. This is clear from the rulings in Tilonko v. Attorney General of Natal [1907] A.C. 93 and Emperor v. Chanappa Shantirappa I.L.R. (1930) 55 Bom. 263 . Out of respect for the decision of the Federal Court, the Governor General has not validated the convictions by the Special Courts, but has only ordered the sentences to be given effect to on the strength of the conclusions arrived at by specially appointed officers in what have now proved to be non-judicial inquiries, and it was open to the Governor General to act upon the result of those inquiries to make up his mind as to what was necessary for the peace and good government of British India. The power to legislate in this behalf falls within Nos. 1 and 2 in the List III and also No. 1 in the List II, in the Lists in Schedule VII of the Government of India Act, 1935, as pointed out toy my Lord the Chief Justice. This direction giving effect to the sentences is contained in the first part of Sub-section (1) of Section 3 of the impugned Ordinance. The second part from the words 'as if' is intended only for the purpose of Sub-section (2) to show where the appeal in each case will lie. The use of the expression 'as if' shows that the proceedings before the Special Courts themselves are not validated or declared to be judicial proceedings. In this case we are not concerned with the difficulties that may arise at the hearing of the appeals, if any are filed urder Sub-section (2) of Section 3. But that sub-section only shows that although the Governor General is satisfied on the inquiries already made that certain per-sons deserved to be made to undergo various sentences, he is anxious to give them an opportunity to show that they have really not committed the acts imputed to them. That is only a concession given by Sub-section (2) of Section 3 and for that purpose the second part of Sub-section. (1) had to be added. But these do not affect the first part, which is the only operative part of Sub-section (2). It was quite intra vires of the Governor General to promulgate such an Ordinance and I agree that the rule should be discharged.

Rajadhyaksha, J.

56. I agree with the judgment delivered by his Lordship the Chief Justice, and have nothing to add.

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