1. This is an application to quash the proceedings under Section 401 of the Indian Penal Code, pending against the applicants and others in the Special Court presided over by Shri G.R. Kale, Special Judge, Akola. His order, dated the 27th February 1951, is questioned in this revision.
2. The material facts are these. The applicants Jagjiwanram, Pyarelal, Duniasingh alias, Mahabir Singh and 37 others are prosecuted on the allegation that they belong to a gang of persons associated for the purpose of habitually committing thefts and house-breaking and they had been operating in the District of Akola. On the 151to January 1951, Tulshiram, Champa, Shaligram and Atmaram, accused Nos. 38 to 41, were tendered pardons by Shri W.M. Deshmukh, judge and Magistrate, Washim, under Section 337(1-A) of the Code of Criminal Procedure, hereafter, referred to as the Code. A charge-sheet was filed against them on the 17th January 1951, in his Court. The State Government, by notification No. 180-121-XVH-R dated the 19th January 1951, in exercise of the powers conferred by Section 12 of the Madhya Pradesh Public Security Measures Act, 1950, hereafter referred to as the Act, constituted a Special Court of criminal jurisdiction for the Akola District. By another notification No. 181-121-XVII-B, issued on the 19th January 1951, the State Government in exercise of its powers under Section 13 of the Act, appointed Shri G.R. Kale, Additional District and Sessions Judge, Akola, as a Special Judge to preside over the Special Court.
3. On the 22nd January 1951, the State Government issued the following notification directing the trial of a gang case by Shri Kale:
In pursuance of Section 14 of the Madhya Pradesh Public Security Measures Act, 1950, (XXIII (33) of 1950) the State Government are pleased to direct that Shri G. R. Kale, Additional District and Sessions Judge, Akola, who has been appointed as a Special Judge by this department Notification No. 181-121-XVII-B dated the 19th January 1951, shall try the 'Gang case' under Section 401 of the Indian Penal Code.
It will be noticed that there was no specific reference to the applicants and their co-accused in the notification. The lacuna was removed later. On the 1st February 1951, the case against the applicants was transferred be the Special Judge by Shri W.M. Deshmukh. Shri Kale on the same date noted in the order-sheet that an inquiry should be made from the District Magistrate if there was any other gang case. Shri Kale on being informed that another gang case under Section 401 of the Indian Penal Code, was pending in the Court of the Judge-Magistrate, Washim, noted in the order-sheet dated 12th February 1951.
The notification by which I am appointed Special Judge to try this case will have to be amended by inserting the names of the accused etc., go that no doubt may be left that I have to try this very case.
A fresh notification was accordingly issued on the 14th February 1951, in the following terms:
In pursuance of Section 14 of the Madhya Pradesh Public Security Measures Act, 1950 (XXIII (23) of 1950), the State Government are pleased to direct you to try the Criminal Case State v. Jagjiwanrao 'alias' Jaggu, son of Dayabhai Patel of Amraoti and 30 others under Section 401, Indian Penal Code, arising out of the Police Station Murtajapur Crime No. 345 dated the 8th Septemper 1950.
4. On the 20th February 1951, the Special Judge Informed the accused that he would commence the trial by framing charges on the basis of the charge-sheet and other materials produced by the prosecution. On behalf of the accused, it was contended that the offence under Section 401 of the Indian Penal Code, does not fall within the scope of the Act, that the provisions in the Act, contrary to those in the Code were 'ultra vires', that the State Government could not direct the Special 'Judge to try a particular case and that the case should be tried as a warrant case. The Special Judge had no jurisdiction to try the case. The Special Judge overruled the objection by his order under revision.
5. Learned Counsel for the applicants argues that the procedure laid down in the Act is in direct conflict with the procedure laid down in the code for the trial of offences, that the procedure laid down in the Act greately prejudices the accused in their defence, that the State Legislature Has no power to create a new procedure without amendment of the Code and that it has no flower to take away the rights of the citizens at its will. The second line of attack is that the Act was not in existence when the offences were committed. The case could not, therefore, be governed by the provisions of the Act. The offence under Section 401 of the Indian Penal Code, is beyond the scope of the Act and the offence or offences triable under the Act should have some -connection with the security of the State or maintenance of public order. The main attack, however, is that the provisions relating to Special Courts and the action of the State Government pursuant thereto have infringed the fundamental rights of the accused conferred, on them by Articles 14 and 21 of the Constitution, with the result that those provisions of the Act are unconstitutional and void and the trial before the special Judge is unauthorised and illegal.
6. Before discussing the issues involved it is necessary to examine the relevant provisions of the Act, in order to see in what manner and to what extent the applicants' fundamental rights have been affected thereby. The Act is entitled an Act to provide for the security of the State, maintenance of public order and for certain other purposes connected therewith'. The preamble to in these terms:
Whereas it is expedient to provide for the security of the State, maintenance of public order and for certain other purposes: It is hereby enacted as follows.
It received the assent of the President, on the 12th October 1950, under Article 254(2) of the Constitution. Section 1 extends the Act to the whole of Madhya Pradesh and limits the life to the 31st December 1952. Sections 2 to 6 of Chapter U deal with restrictions of movements and actions of persons. Section 7 of Chapter III relates to collective fines. Sections 8 to 10 of Chapter IV deal with matters of public safety and order. Section 11 of Chapter V provides for requisition and acquisition of property.
7. The constitution of special Courts and the procedure to be followed by them as well as the matters arising out of trials are dealt with in Chapter VI, entitled Special Court. Section 12 empowers the State Government by a notification to constitute special Courts of Criminal jurisdiction for such areas as may be specified in the notification. Section 13 empowers the State Government to appoint a special Judge to preside over a special Court. The qualification for such appointments are set out in the section. Then follows Section 14, which has been the main subject-matter of attack by learned Counsel for the applicants. The section is in the following terms:
A special Judge shall try such offences or classes of offences or such cases or classes of cases as the State Government or any officer authorised by it in this behalf may, by general or special order in writing, direct.
Section 15(1) provides that a Special Judge may take cognizance of offences without the accused being committed to his Court for trial. Sub-section (2) of Section 15 prescribes the manner in which evidence is to be recorded. Except in cases of trials of offences punishable with death or transportation for life, it is not necessary to take down the evidence at length in writing. The Special Judge is required to record a memorandum of substance of what each witness deposes. Power is given under Sub-section (3) to the Judge to refuse to summon any witness if his evidence is not material and refused adjournment for any purposes unless such adjournment is necessary in the interests of justice.
8. Sub-section (4) of Section 15 runs as follows:
In matters not coming within the scope of Sub-sections (1), (2) and (3), the provisions of the Code, in so far as they are not inconsistent with this act, shall apply to the proceedings of a special Judge; and for the purposes of those provisions the Court of a Special Judge shall be deemed to be a Court of Session.
Section 16 empowers the Special Judge to direct the recording of evidence on commission. The Special Judge under Section 17, may pass any sentence authorised by law. Section 18 deals with recovery of fines. Section 19(1) provides that any person convicted by a Special Judge may appeal to the High Court within a period of fifteen days from the date of sentence. Under Sub-section (2) the High Court may call for the record of the proceedings of any case tried by a Special Judge under this Act and may in respect of such case exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 of the Code. In the event of an order of retrial, the trial shall be by a Special, Judge. Sub-section (3) says that no Court shall have, Jurisdiction to transfer any case from any Special Judge or to make any order under Section 491 of the Code, in respect of any person triable by a Special Judge, or save as herein otherwise provided have Jurisdiction of any kind in respect of any proceedings of any special Judge. Section 20 says that notwithstanding anything contained in the Code no trial before a special Judge shah be by a jury or With the aid of assessors.
9. Section 21 is as follows:
The provisions of the Code and of any other law for the time being in force in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Act shall apply to all matters connected with, arising from, or consequent upon, a trial held by a Special Judge appointed under this Act.
Section 22 deals with delegation of powers and duties of the State Government and the power to make rules is conferred on the State Government by Section 23. Penalty for attempt to commit an offence punishably under the Act is provided in Section 24. Section 25 deals with indemnity. Section 26 says that the provisions of the Act, shall be in addition to and not in derogation of any other Act, Ordinance or Regulation for the time being In force. A police officer under Section 27, is empowered to arrest without warrant any person who is reasonably suspected of having committed an offence punishable under the Act. Section 28(1) repealed the Central Provinces and Berar Public Safety Act, 1948. Sub-section (2) of Section 28 does not arise for consideration.
10. We may now turn to the provisions of the Code to see in what manner the rights of a person accused of an offence under the Indian Penal Code are affected at his trial by a Special Judge under the provisions of the Act. Section 5(1) of the Code says that
all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
Section 28 is as follows:
Subject to the other provisions of this Code any offence under the Indian Penal Code may be tried:
(a) by the High Court, or
(b) by the Court of Session, or
(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable.
11. The High Court may take cognisance of any offence upon a commitment made to it in manner hereinafter provided: Section 194(1). Section 193(1) says that except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original Jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. The inquiry into the cases triable by the Court of Session or High Court is provided in Chapter XVIII of the Code. The accused under Section 208(2) is given the right to cross-examine the prosecution witnesses before charge. The framing of the charge under Section 210, by the Magistrate without allowing the accused to cross-examine the prosecution witnesses is illegal. The Magistrate is empowered under Section 209 to discharge the accused if there are not sufficient grounds for commitment. The Magistrate under Section 210 framed a charge declaring under what offence tine accused is charged if there are sufficient grounds for committing the accused for trial.
12. The procedure governing the trials before High Courts and Courts of Session is laid down in Chapter XXIII of the Code, Section 267 enjoins that all trials under this chapter before a High Court shall be by jury. Section 268 provides that all trials before a Court of Session shall be either by jury, or with the aid of assessors. Section 269(1) says that the State Government may by order in the Official Gazette, direct that the trial of all offences, or of any particular class of offences, before any Court of Session shall be by jury in any district, and may, revoke or alter such order, in this State the Government have specified the offences which are triable by jury in certain districts: Rule 224, page 65, Rules and Orders (Criminal). At the commencement of the trial the charge is read out to the accused. If he pleads not guilty, the prosecution witnesses are examined and the accused has the right of cross-examining them. The evidence in the Court of Session has to be recorded in accordance with Section 356 of the1 Code.
13.We are now in a position to see the difference between the trial of offences by a Special Judge and the trial of offences under the Code. There is no commitment under the Act. This is distinctly disadvantageous to the accused. He is deprived of the benefit of an inquiry. He has only one opportunity of cross-examining the prosecution-witnesses and has no chance of being discharged. In Lachman v. Juala 5 All 161, it was stated that
the object of the law in requiring an enquiry before a trial in the Court of Session is to prevent the commitment of cases in which there is no reasonable ground for conviction. This provision of law, while it saves the accused persons from the prolonged anxiety of undergoing trials for offences not brought home to them, also saves the time of the Court of Session from being wasted over cases in which the charge is obviously not supported by such evidence as would support a conviction.
A preliminary inquiry affords the accused an opportunity of becoming acquainted with the circumstances of the offences imputed td him and enables him to make his defence.
14. The special Judge is not required to frame a charge and the procedure is not that of a warrant case unlike Section 5 of the Special Criminal Courts Ordinance No. II of 1942, and Section 6(1) of the West Bengal Special Courts Act, 1950. The accused has thus only one right of cross-examination.
15. The special Judge is not required to record the evidence in accordance with Section 356, except in cases of trial of offences punishable with death or transportation for life. He is only required to record a memorandum of substance of what each witness deposes. This mode of recording evidence is prejudicial to the interests of the accused. A similar provision in Section 4(2) of the Hyderabad's Special Tribunals Regulation, was considered and declared invalid by a Full Bench in Abdur Rahim v. Joseph A. Pinto AIR 1951 Hyd 11. Naik, C.J. stated:
The portions which offend the Constitution are the whole of Sub-section (2) of Section 4, which permits only memoranda of evidence to be taken down in cases of very serious nature, which is against the spirit and the letter of the law as laid down in Chapter XXI, Hyderabad Criminal P.C. and should, therefore, be deleted.
Shripatrao, J. observed:
Excepting summary trials such a provision for the recording of evidence seems to be unwarranted especially in the case of serious offences. It is often likely to work as a hardship both to the accused and to the prosecution, in cases to be dealt with at the appellate stage where the question may be raised as to the veracity of the witness or as to the contents of what a witness has actually deposed. In Duncan v. Missouri (1894) 152 US 377 : 38 L Ed 485, the Supreme Court of the United States was considering the Question of an ex-post facto Law.
Fuller, J. observed:.the prescribing of different modes of procedure and the abolition of Courts and creation of new ones leaving untouched all the substantial protections with which the existing law surrounds the accused person of crime are not considered within the constitutional inhibition'. What we have got 'to consider is that the recording of evidence at length in a warrant case or case triable by a Court of Session is a substantial protection to the accused or not. In my opinion, it is substantial protection and therefore it cannot be denied after the commencement of the constitution to the accused who may be tried under the Special Tribunal Regulation. The equal protection at' the laws in legal proceedings is secured when the laws of the State operate on all persons alike and do not subject the individual to an arbitrary exercise of powers of Government when its Courts are open to every one on the same terms, when it assures to every one substantially the same rules of evidence. In my opinion, therefore, Section 4, Sub-section (2) must be struck off as being repugnant to Article 14.
Ansari, J. was of the same opinion. There are similar observations in Abdul Khader v. State of Mysore AIR 1951 Mys 72. (18) The impugned Section 14, empowers the State Government to deprive an accused of his right to be tried by a jury by directing his trial before a Special Court. The right to be tried by a jury has always been regarded as one of the most valuable rights of the citizens in this country and in England.
17. If a warrant case were to be tried by a Special Court, the accused loses a valuable right of cross-examination before the charge. There has been some difference of judicial opinion regarding the right of the accused to cross-examine the prosecution witnesses before the charge. In this Court, however, the view has been that in the trial of a warrant case, an accused has an inherent right to cross-examine a witness immediately after his examination-in-chief & he cannot be made to postpone such cross-examination until such charge has been framed. Under Section 253 of the Code, the Magistrate can discharge an accused if there is no prima facie case against the accused which if rebutted would warrant his conviction. Under the Act, the Special Judge has no such power.
18. The offence under Section 401 is ordinarily triable by a Magistrate of the first class. In this case, as the magistrate granted pardon under Section 337 of the Code, he was required to commit the case to the Court of Session, under Sub-section (2-A) if he was satisfied that there were reasonable grounds for believing that the accused were guilty of an offence. The notification directing the case to be tried by a Special Judge had deprived the accused of an inquiry under Chapter VIII. The right of applying for transfer is also denied.
19. There is no contravention of Article 21 of the Constitution which is in the following terms:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
'Law' in this expression means State-made or enacted law and not the general principles of natural justice. Procedure established by law thus means procedure prescribed by the legislature.
20. The expression 'procedure established by law' was the subject of considerable discussion in A.K. Gopalan v. The State of Madras : 1950CriLJ1383 . It was held by Kania, C.J., Mukherjea and Das. JJ:
In Article 21 the word 'law' has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice; & 'procedure established by law means procedure established by law made by the State, that is to say, the Union Parliament or the legislature of the States. It is not proper to construe this expression in the light of the meaning given to the expression 'due process of law', in the American. Constitution by the Supreme Court of America.
Per Patanjali Sastri, J.:
'Law' in Article 21 does not mean the 'jus natural' of Civil Law but means positive or State-made law.
The same view was reiterated in S. Krishnan v. The State of Madras : 2SCR621 :
The expression 'procedure established by law' means procedure prescribed by law. It is open to Parliament to change the procedure prescribed by Section 12 of Act IV of 1950 by enacting a law and that procedure becomes the procedure established by law within the meaning of that expression in Article 21 of the Constitution. Thus where the detention of the petitioners is by Virtue of Section 12 of the amended Act, a new detention under the amended Act, the procedure prescribed by the amended Act, is the procedure established by law within the meaning of Article 21.
21. The accused has no absolute right to be tried under the Code. No person has a vested right in any course of procedure. Section 1(2) of the Code recognises the special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law. The Legislature is left free to lay down any procedure within the ambit of the legislative powers conferred by Entry 2 of List III (Criminal Procedure) subject of course to the limitation that there is no invasion of fundamental rights. The Constitution does not lay down any direction upon the legislature as to the circumstances under which it may create special Courts, as is contained in Article 38(3)(1) of the Constitution of Eire, 1937, which says:
Special Courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.
22. Article 21 is not intended to be constitutional limitation, upon the powers of the Legislature otherwise conferred by the Constitution. We have, therefore, to find whether the Act is within the competence of the Legislature. Under List III Concurrent list, Item No. 2, is criminal procedure including all matters included in the Code of Criminal Procedure at the commencement of this Constitution. The legislature is, therefore, empowered to create Special Criminal Courts for the trial of offences subject to Article 254(2). This item corresponds to item No. 2 of the concurrent legislative list in the 7th schedule to the Government of India Act. In Raonak Ali v. Emperor ILR (1948) Nag 785, the contention that the Provincial Legislature was not competent to undertake legislation in respect of the amendment of the provision relating to grant of bail in the Code was overruled. It was held that the Central Provinces and Berar Criminal Procedure (Amendment) Ordinance, 1948, was not 'ultra vires' the Governor of the Central Provinces and Berar. The Act here has received the assent of the President. It is not open to challenge on the ground that the legislature was not competent to undertake legislation in respect of special Criminal Courts. It is, however, open to the Court to examine the provisions in order to see if they infringe the fundamental rights under Article 14 of the Constitution.
23. Article 14 is in these terms:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
The Article relates to two different concepts. One is equality before the law and the other is equal protection of the law. The two phrases appear to have been taken from the Constitutional Doctrines of Britain and the United States of America. Dicey in his law of the Constitution at page 202 (9th Edition) refers to the equality before the law as implying the equal subjection of all classes to the ordinary law of the land. The phrase 'equality before the law' is explained by Jennings in his law of the Constitution (3rd Edition) at page 49:
The right to sue and be sued, to prosecute and be prosecuted, for the same kind of action should be the same for all citizens of full age and understanding and without distinction of race, religion, wealth, social status, or political influence.
24. The second part of the Article corresponds to the Fourteenth Amendment of the Constitution of the United States of America which declared that no State shall deny to any person within its jurisdiction the equal protection of the laws'. Weaver at page 407 of his Constitutional Law has observed:
The equal protection of the law in legal proceedings is secured when the law of the State operate on all persons alike and do not subject the individual to an arbitrary exercise of the powers of Government; when its Courts are open to every one on the same terms; when it assures to everyone the same rules of evidence and modes of procedure; when it secures to all persons their civil rights; and when in the administration of Criminal Justice, no different or higher punishment is imposed upon one than is prescribed for all under like offences.
Procedural provisions which discriminate arbitrarily against either individuals or corporations are invalid according to the learned author. His observation on classification and class legislation is as follows:
Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons, arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted and between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.
Professor Willis has summed up the law as prevailing in the United States in his Constitutional Law at page 579. This statement of law was approved by Fazl Ali, J. Charanjit Lal v. Union of India 1950 SCR 369. The principles laid down in that case were summarised thus by him in a later case: State of Bombay v. F.N. Balsara AIR 1951 SC 318:
1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no differences peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
4. The principle does not take away from the State the power of classifying' persons for legitimate purposes.
5. Every classification is in some degree likely to produce some inequality and mere production of inequality is not enough.
6. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.
25. The State Legislature is competent to create Special Criminal Courts and appoint Special Judges to preside over those Courts. The qualification for their appointments can also be prescribed by the legislature. Sections 12 and 13 are not open to challenge.
26. The real question is whether the power conferred on the State Government under Section 14 of the Act involves discrimination in the manner contrary to Article 14 of the Constitution. In our opinion, there is no discrimination if certain offences or classes of offences are directed to be tried by a Special Judge. Persons accused of such offences would be treated alike. They will be all subject to the procedure governing the trial of cases under the Act by a Special Judge. The power to direct certain classes of cases to be tried by a Special Judge may not also be regarded as discriminatory if there are good reasons for classification of such cases and treating the cases and the persons charged in such cases differently from other cases and the persons charged therein.
27. The power given to the State Government to direct that any particular case be tried under the Act in a different way from that in which it would ordinarily have been tried involves discrimination and infringement of Article 14 of the Constitution. It enables the State Government to discriminate between man and man in the same locality-it may be even in respect of the same or a similar crime-and to send one of them for trial by a Special Court, with all the risks and disadvantages which the special procedure involves while leaving the other to be tried in the normal course by the regular Courts. It is an uncontrolled and unguided power left in the hands of the Government. The cases in this State under Section 401 of the Indian Penal Code are tried in the ordinary Courts and actually there is another gang case under Section 401, 'ibid' pending in the Magistrate's Court to which we have adverted earlier in our order. There is no material on which the case of the applicants can be distinguished from the case of the accused in the other gang case. By virtue of the notification, persons similarly circumstanced do not appear to have been treated in the same manner.
28. In Yick Wo v. Peter Hopkins (1886) 118 US 356 it was held:
Though a law be fair on its face and impartial in appearance, yet, if it is administered by public authority with an evil eye and an unequal hand, so as practically to make illegal discriminations between the persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.
In Power Manufacturing Co. v. Harvey Saunders (1927) 274 US 490, it was observed:
It does not prevent a State from adjusting its legislation to differences in situation or forbid classification in that connection, but it does not require that tile classification be not arbitrary, but based on a real and substantial difference having a reasonable relation to the subject Of the particular legislation.
29. Section 14 of the Act, is in the same terms as Section 5 of the West Bengal Special Courts Act, 1950 enacted 'to provide for the speedier trial of certain offences'. Section 5 reads as follows:
5(1) A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing direct.
The facts of the case in Anwar Ali v. State of West Bengal Civil Revn No. 942 of 1951, decided on the 28th August 1951 are that Anwarali Sarkar and 49 others were tried by a Special Judge appointed under the West Bengal Special Courts Act of 1950, upon charges of murder, conspiracy to murder, to commit grievous hurt with deadly weapons and to commit mischief. They were convicted and sentenced to various terms of imprisonment. In Civil Revision No. 1113 of 1951 there were proceedings under the West Bengal Special Courts Act of 1950, against one Gajan Mali and others. The legality of the conviction in the first case and the proceedings in the second case before the Special Court was raised before the Calcutta High Court, in Civil Revn No. 942 and 1113 of 1951 (Cal). The main contention there was that the West Bengal Special Courts Act of 1950, and in particular Section 5, was 'ultra vires' the Constitution. A Full Bench consisting of 5 Judges quashed the proceedings. The learned Chief Justice who delivered the leading judgment held:
In my view Sub-section (1) of Section 5 of the West Bengal Special Courts Act of 1950 offends against Article 14 of the Constitution in so far as it empowers the State Government to direct any case to be tried by a Special Court, & as the notification in question were made under that power, I am bound to hold that the power given in the section and the notifications made under the power so given are 'ultra vires' Article 14 of the Constitution and therefore the special Court had no jurisdiction to try Anwarali Sarkar and the forty-nine co-accused persons and to convict and sentence them; and has no power to continue with the trial of Gajen Mali and his co-accused in the Kawdwip case.
That being so, both these petitions must be allowed. In the case of Anwarali Sarkar and others the proceedings, convictions and sentence must be quashed; & in the case of Gajen Mali the proceedings now pending before the Special Court must also be quashed. The accused persons are entitled to be tried, in accordance with law and we direct that they be retained in custody Rending such further proceedings as the State Government may be advised to pursue.
30. The following observations of the learned^ Chief Justice may be quoted:
It was contended that a particular case may be so unusual and outstanding and may have such features as to place it in a class by Itself and to place the persons charged in such a case in a class by themselves. That I think may well be so. But that does not solve the difficulty. It must be remembered that in the case of Chiranjitlal Chowdhuri : 1SCR869 , the impugned Act dealt with a particular company by name and if Sub-section (1) of Section 5 of the West Bengal Special Courts Act of 1950, dealt with the particular case and empowered the State Government to direct such a case to be tried in a particular way then toe principles enunciated in Chiranjitlal Chowdhury's Case might well apply. However, what Sub-section (1) of Section 5 of this Act does is to empower toe State Government to direct any case to be tried by a Special Court and there is nothing in the section limiting that right to cases involving unusual features or involving difficulties and complications not usually found in the ordinary criminal case in this State. The word 'cases' as I have already said, includes an individual case and of course includes a number of cases. These cases need not be of the same class and there is nothing in the section to suggest that they need have any common features. The use of the word 'cases' empowers the State Government to direct a Special Court to try any particular case which it desires and in exercising the power so given by toe sub-section there is nothing to prevent the State Government selecting any case whatsoever whether the duration of such a case is likely to be long or not, or whether the case is of complexity or not, or whether it is a case likely to arouse sectional feeling or not. There is nothing in the sub-section which places any limit on the powers of the State Government in exercising its discretion in directing trial of a case in a particular way.
* * * * *It seems to me that this section clearly discriminates between persons similarly situated on equally circumstances and therefore offends against Article 14 of the Constitution in so far as it empowers a State Government to direct the trial of any case by a Special Court.
The powers given by the sub-section could be confined to cases having some unique or unusual features or to lengthy or complicated cases, but such need not be so confined. The powers under the sub-section could be exercised as not to involve discrimination but they also could in my view be exercised in a manner involving discrimination. When an Act gives powers which may and can offend against a provision or provisions of the Constitution or such an Act is 'ultra vires' though it could be administered so as not to offend against the Constitution.
In support of his last observation he relied on two decisions of the Supreme Court - Romesh Thappar v. State of Madras : 1950CriLJ1514 and Chintaman Rao v. The State of Madhya Pradesh : 1SCR759 .
31. Chakravartti, J. was of the opinion that Section 5 of the impugned Act in so far as it provides for toe assignment to special Courts of 'cases' is clearly void, as it is a threat to the due observance of the equality clause of the constitution in all cases and therefore anything purported to have been done under the void provision must be held to be also void, although if done differently, the same act might be constitutional. We may point out that under the Bengal Act, the Special Courts were required to follow the procedure prescribed toy the Code for the trial of warrant cases by the Magistrate.
32. The learned Government Pleader contends that the terms of Section 14 off the Act are identical with those of Section 5 of the Special Criminal Courts Ordinance, 1942 (No. II of 1942), and the legality of the trials under the provisions of the Ordinance was upheld in several decisions. He relies on Sitao v. Crown ILR (1943) Nag 73 and Bishnusingh v. Crown ILR (1943) Nag 369; Emperor v. Benoari Lal Sharma 72 I A 57 and Abdul Khader v. State of Mysore AIR 1951 Mys 72. In our opinion (sic)ese decisions are inapplicable as the present Constitution was not then in force. In Benoarilall Sharma v. Emperor : AIR1943Cal285 , the Chief Justice of the Calcutta High Court and in appeal reported in Emperor v. Benoari Lall Sharma AIR 1943 PC 36, the Chief Justice of the Federal Court expressed the view that the Ordinance made it possible to discriminate between one accused and another or one class of offence and another so that cases might be tried either in the Special Courts or under the ordinary and well-established criminal procedure according to the direction and decision of Provincial authorities. The Privy Council in reversing the Judgment of the Federal Court observed that the majority view appeared to be based on the conception that there was something underlying the written Constitution of India which debarred the executing Authority, though especially authorised by the statute or Ordinance to do so, from giving directions after the accused had been arrested and charged with crime as to the choice of Court which is to try him. Their Lordships were unable to find that any such constitutional limitation is imposed. The Constitution then in force was the Government of India Act, 1935, in which there was no provision corresponding to Article 14 of the Constitution.
33. Chakravartti, J. distinguished this decision on the ground that 'a limitation, however, has now been imposed on the law-making bodies by Article 14 of the Constitution of India and the particular reason which enabled the Privy Council to hold that Section 5 of Ordinance II of 1942, and provisions of a like character to be valid, has disappeared'.
34. Venkat Ramiya, J. in Abdul Khader v. State of Mysore AIR 1951 Mys 72, observed that the reasons given by the Privy Council in Benoari Lall Sharma's case (2 Ind App 57 PC could not now prevail since there was a written constitution in which Article 14, guaranteed fundamental right. Malappa, J. in the same case held that the Mysore Special Criminal Courts Act, 1942, was perfectly valid prior to the commencement of the constitution. After the Constitution It was void under Article 13 of the Constitution, as it Was Inconsistent with Article 14.
35. The decisions in the Mysore case cannot govern the Instant case as the accused there were convicted on the 5th October 1949 and there was no provision in the Constitution of Mysore analogous to Article 14. Further, there was, in fact, no discrimination. The order directing trial under Section 4 of the Mysore Special Criminal Courts Act, 1942, was that the cases against all persons accused of offences committed at that time should be tried by the Special Judge. Section 4 of the Mysore Act, was similar to Section 14 of the Act. The cases by virtue of Section 5 of the Mysore Act were to be tried as warrant cases. In view of the Special facts the decision in the Mysore case is inapplicable.
36. One of the cases, on which the learned Government Pleader strongly relied is Abdur Rahim v. Joseph A. Pinto AIR 1951 Hyd 11. The accused were put up for trial before a special Tribunal in pursuance of an order, dated, the 8th April 1950, of the Chief Minister of Hyderabad State made under Section 3 of the Hyderabad Special Tribunals Regulation No. V of 1358 Fasli. They challenged the provisions of the regulation as they were in conflict with the Hyderabad Criminal Procedure Code. The High Court held that after the deletion of the provisions the trial by a Tribunal under the Regulation is substantially the same as that under the ordinary Criminal Procedure and the Regulation as it stood alter the deletion was neither void nor unworkable. The test which the learned Judges applied in determining whether Article 14 was infringed was that there should be substantial or material difference between the general law and the special law. If we apply this test to the case before us, there will be an infringement of Article 14. We have already noticed the disadvantages to the accused consequent to a trial under the Act. We may also point out that the trial under the Hyderabad Regulations was that of a warrant case and the tribunal was composed of three members.
37. The learned Government Pleader on the authority of Chiranjitlal's case : 1SCR869 says that even one individual can be treated as a class if such individual is unique or as it is sometimes called a class in himself. In that case an Act had been passed called the Sholapur Spinning & Weaving Company (Emergency Provisions) Act of 1950, which provided that the managing agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to appoint new directors, the rights of the share-holders of the Company were curtailed in the matters of voting, appointment of directors, passing of resolution and applying for winding up, and power was also given to the Government to further modify the Indian Companies Act in its application to the Company; and in accordance with the provisions of the Act new directors were appointed by the Government.
38. A share-holder of the Company made an application under Article 32 of the Constitution, for a declaration that the Act was void and for enforcement of his fundamental rights by a writ of 'mandamus' against the Central Government, the Government of Bombay and the directors. By a Majority the Supreme Court held that the impugned Act was not discriminatory and did not offend against the provisions of Article 14 of the Constitution of India, on which reliance was placed by the petitioner. Fazl Ali, J. referred to the Legislative proceedings to explain the circumstances under which the impugned Act was passed. He observed that
the facts which were placed before the legislature with regard to Sholapur Mills were of s an extraordinary character and fully justified the company being treated as a class by itself. They were undoubtedly other mills which were open to the charge of mismanagement, but the criteria adopted by the Government which, in my opinion, cannot be said to be arbitrary or unreasonable, is not applicable to any of them. As we have seen, one of the criteria was that a mere allegation of mismanagement should not be enough and no drastic step such as is envisaged in the Act should be taken without there being a complete enquiry. In the case of the Sholapur Mill, a complete enquiry had been made and the revelations which were made as a result of such enquiry were startling.
39. The impugned Sholapur Act applied directly and of its own force to a particular mill company. There were special circumstances in Chiranjitlal's case : 1SCR869 which are not found in the present case. The only circumstance here is that the number of accused and of witnesses is large, This decision was considered by the Judges of the Calcutta High Court. The other case to which reference was made by the learned Government Pleader is Sheoshankar v. State Government AIR 1951 Nag 58. There was a reasonable basis for a differential treatment. The discrimination was not arbitrary.
40. It does not appear that in enacting Section 14 of the Act, the legislature had in view the provisions of Article 14 of the Constitution. Its terms are the same as Section 21 of the Central Provinces and Berar Public Safety Act, 1948. Section 20 of the Central Provinces and Berar Public Safety Act, 1947, and Section 5 of the Special Criminal Courts Ordinance II of 1942. The learned Special Judge does not appear to have examined the validity of Section 14 of the Act, in the light of Article 14 of the Constitution.
41. We respectfully agree with the unanimous decisions of the Calcutta High Court and hold that the notification dated the 22nd January 1951 and 12th February 1951 are invalid. The Special Court has no jurisdiction to try the applicants. We quash the proceedings. It is open to the State Government to institute proceedings against the applicants in accordance with law. In view of the conclusion reached by us, we do not consider it necessary to decide the question whether the offence under Section 401 of the Indian Penal Code, falls within the purview of the Act.
42. The order of the Special Judge is set aside and the revision is allowed.