Skip to content


Madho Saran Singh and ors. Vs. Emperor. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1943All379
AppellantMadho Saran Singh and ors.
RespondentEmperor.
Excerpt:
- - , were also filed and in those applications as well the question of the validity or otherwise of ordinance 19 was directly and specifically in issue. 5. he pointed out that the language of section 3, apart from sub-section (3) is involved and that in that section words of definite and clear import like 'made and declared lawful and confirmed' as are usually used 'where it is desired to legalize something illegally done in the past' were not used. no court can question the validity of a law made by a sovereign legislature like the parliament inasmuch as it has unfettered legislative powers. after giving due weight to the arguments that have been addressed at the bar, and giving the question my best consideration i am disposed to agree with the decisions of the patna and the madras.....iqbal ahmad, c. j.1. after the promulgation of ordinance 19 of 1943 on 5th june 1943, numerous appeals against the decisions of special judges and special magistrates, in cases tried by them in accordance with the provisions of ordinance 2 of 1942, were filed in this court and, in most of the appeals, the validity of ordinance 19 itself was assail-ed. a number of applications under section 491, criminal p. c., were also filed and in those applications as well the question of the validity or otherwise of ordinance 19 was directly and specifically in issue. before these appeals and applications were put for final disposal, the question raised formed the subject of debate and discussion in and of decision by the calcutta, patna and the madras high courts, and the decisions of those courts.....
Judgment:

Iqbal Ahmad, C. J.

1. After the promulgation of Ordinance 19 of 1943 on 5th June 1943, numerous appeals against the decisions of Special Judges and Special Magistrates, in cases tried by them in accordance with the provisions of Ordinance 2 of 1942, were filed in this Court and, in most of the appeals, the validity of Ordinance 19 itself was assail-ed. A number of applications under Section 491, Criminal P. C., were also filed and in those applications as well the question of the validity or otherwise of Ordinance 19 was directly and specifically in issue. Before these appeals and applications were put for final disposal, the question raised formed the subject of debate and discussion in and of decision by the Calcutta, Patna and the Madras High Courts, and the decisions of those Courts were by no means uniform. To avoid conflict of judicial opinion in this Court on the question raised, and also with a view to have an authoritative pronouncement for the guidance of the Sessions Judges subordinate to this Court, who also have to deal with appeals preferred by persons tried and convicted under Ordinance 2, I constituted the present Full Bench.

2. The circumstances that led to the making and promulgation of Ordinance 19 are not, and cannot be, a matter of controversy and those circumstances are set out in the judgments of the Calcutta, Patna and the Madras High Courts which will presently be referred to. To put briefly, the Federal Court on 4th June 1943, in Emperor v. Benoari Lal Sarma , held that the Courts that tried and convicted persons under ordinance 2 had not the jurisdiction to do so. In this connexion Varadachariar C. J., observed as follows :

We are of the opinion that the Ordinance has not by itself repealed Sections 28 and 29, Criminal P. C., (if such repeal were necessary) as we think it was--that notwithstanding drafting devices, it is only the order of the executive authority passed under Section 5, 10 or 16 of the Ordinance, in respect of each case or group or class of cases that in fact operate to repeal those provisions of the Code to divest the regular Courts of their jurisdiction and to invest the Special Courts with jurisdiction to try any particular ease or group or class of cases. We are also of the opinion that such executive orders cannot in law have any such effect and that Sections 5, 10 and 16 of the Ordinance are open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion, without any legislative provision or direction laying down the policy or conditions with reference to which that power is to be exercised. The powers of the High Court, though in form taken away by Section 26 of the Ordinance, are in fact only taken away by the order of the executive officer, because it is only on such order or direction being given that any case becomes a proceeding before a Special Court for the purpose of Section 26. We accordingly agree with the High Court that 'the Court which purported to try and convict the respondents had no jurisdiction to do so.'

3. It was manifest from the decision of the Federal Court that the sentences imposed by the Courts constituted under ordinance 2 were illegal and, therefore, all the persons convicted by those Courts were entitled to be released. This situation was, presumably, taken by the Governor-General to amount to an 'emergency' and led to the passing of ordinance 19 on 5th June 1948. The Ordinance is styled as Ordinance 'to repeal the Special Criminal Courts Ordinance, 1942, and to provide for certain matters in connection with such repeal.' It consists of 5 sections. The Ordinance is given immediate operation by Section 1 and by Section 2 the Special Criminal Courts Ordinance 2 of 1942 is repealed. Section 3, which is material for our present purposes, runs as follows:

3. Confirmation and continuance, subject to appeal, of sentences--(1) Any sentence passed by a Special Judge, a Special Magistrate or a Summary Court in exercise of jurisdiction conferred or purporting to have been conferred by or under the said Ordinance shall have effect, and subject to the succeeding provisions of this section, shall continue to have effect, as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure, 1898 (5 of 1898), by a Sessions Judge, an Assistant Sessions Judge or a Magistrate of the first class respectively, exercising competent jurisdiction under the said Code. (2) Notwithstanding anything contained in any other law, any such sentence as is referred to in Sub-section (1) shall, whether or not the proceedings in which the sentence was passed were submitted for review under Section 8, and whether or not the sentence was the subject of an appeal under Section 13 or Section 19, of the said Ordinance', be subject to such rights of appeal as would have accrued, and to such powers of revision as would have been exercisable under the said Code if the sentence had at a trial so held been passed on the date of the commencement of this, Ordinance. (3) Whether any such sentence as aforesaid has been altered in the course of review or on appeal under the said Ordinance, the sentence as so altered shall for the purposes of this section be deemed to have been passed by the Court which passed the original sentence.

4. Sections 4 and 5 are irrelevant for the decision of the question before us. It was contended on behalf of the appellants that Ordinance 19, and in particular Section 3 of that Ordinance, was ultra vires the ordinance-making authority of the Governor-General. This question was first raised before, and decided on 12th July 1943 by a Special Bench of the Calcutta High Court consisting of Derbyshire C. J., Khundkar and Sen JJ. in Sushil Kumar Bose v. Emperor : AIR1943Cal489 All the three Judges delivered separate judgments. Derbyshire C. J.

in the course of his judgment, observed that in view of the circumstances under which, and the speed with which, the amending Ordinance was passed, it would be unfair to criticise it in the way that a statute might be criticised. The proper course, in my opinion, is to take the Ordinance as a whole and in the light of the surrounding circumstances construe it so as to give effect to what appears to be its proper meaning.

5. He pointed out that the language of Section 3, apart from Sub-section (3) is involved and that in that section words of definite and clear import like 'made and declared lawful and confirmed' as are usually used 'where it is desired to legalize something illegally done in the past' were not used. In this connexion he made reference to various validating Statutes and observed that 'to take away retrospectively' from the convicted persons the right

to have their convictions quashed, would require legislation in the clearest possible terms as was done in the validating Statutes set out above--implication or inference is not enough.

6. He then indicated the anomalies that would arise if the construction of Sub-section (1) of Section 3 contended for on behalf of the Crown was accepted and summarized his conclusions as follows:

Looking at the Ordinance as a whole, as I think it ought to be looked at, and having regard to what it provides and what it omits to provide, and having regard also to the circumstances in which it was passed, I am of the opinion that the meaning and purpose of Section 3 were that sentences already passed should continue to have effect as if they had been passed by a valid Court, until under rights therein given to those convicted by the special Courts, those sentences could be reviewed or dealt with in appeal under the provisions of Criminal Procedure Code when they should be dealt with according to law. One important feature of that law, declared by the Federal Court on 5th June 1943... was that such sentences were invalid as being based upon convictions in Courts which had no legal authority. In my opinion, it is the duty of the proper Court which has appellate or revisional jurisdiction in the areas in which these sentences were passed to have those convictions brought up before it and quashed and, further, to direct that the persons concerned should be dealt with according to law in the ordinary Courts according to the ordinary process of law....

7. As I read the judgment of Derbyshire C. J., it appears to me that he did not hold that the Ordinance in question or any part of it was ultra vires the legislative powers of the Governor-General. He, however, held that Sub-section (1) of Section 3 of the Ordinance had the effect of validating the trials held under Ordinance 2 only up to the time that the matter was taken in appeal or revision or came before the appellate or revisional authority and that, thereafter, the conviction and the sentence must be deemed to have been passed by a Court that had no jurisdiction to hold the trial and should, accordingly, be quashed forthwith. Khundkar J., agreed with the judgment of Derbyshire C. J., Sen J., on the other hand, disagreed with the majority of the Judges constituting the Bench and held that Section 3 is ultra vires. In the course of his judgment he is reported to have observed as follows:

There is a fundamental difference between a Sovereign and a subordinate Legislature. No Court can question the validity of a law made by a Sovereign Legislature like the Parliament inasmuch as it has unfettered legislative powers. Bodies or persons given legislative powers by Parliament are in a different position--they are subordinate or non-Sovereign Legislatures and as such their Acts may be adjudicated upon by Courts which, in a proper case, may delare them to be ultra vires... a non-Sovereign Legislature which has made a law which is ultra vires of itself cannot by a subsequent Act declare such law or any part thereof to be intra vires. To permit this would be to permit a Legislature with powers limited by some other authority to enlarge its powers by its own Act without reference to the authority creating it. Now if this cannot be done directly, obviously it cannot be done indirectly, by means of drafting or other devices.

8. The question under consideration then came before the Patna High Court and was decided on 20th July 1943, by Brough and Sinha JJ., in Jailal Sahu v. Emperor ('43) 30 A.I.R. 1943 Pat. 346. They formulated the question for decision in the following words: 'What, if any, is the legal effect of ordinance 19?' Brough J., held

that the substance of the Ordinance, that is to say, the execution of the sentences passed by the Special Courts, subject to such modification as may be made on merits on appeal or in review, has been expressed with sufficient clarity to take effect and is not ultra vires,

and Sinha J. agreed with this conclusion. The question whether Sub-section (1) of Section 3 of Ordinance 19 embodies a valid proposition of law was then considered and decided by a Full Bench of the Madras High Court on 10th August 1943 in In re R. Subbarayan ('43) 30 A.I.R. 1943 Mad. 602. The learned Judges had copies of the judgments of the Calcutta and Patna High Courts before them and they dissented from the Calcutta decisions and agreed with the pronouncement of the Patna High Court. In the course of arguments before us the Advocate. General stated that the Bombay High Court and the Chief Court of Sind had agreed with the decisions of the Patna and the Madras High Courts, but the Bombay and the Sind decisions have not so far been reported. It would thus appear that, even though there is conflict of judicial opinion as regards the validity and effect of Sub-section (1) of Section 3, the weight of authority at present is in favour of the view that that sub-section is intra vires the legislative powers of the Governor-General and that, subject to the rights of appeal and powers of revision given by Sub-section (2), the trial held by the Special Courts must be deemed to have been

held in accordance with the Code of Criminal Procedure, 1898 (5 of 1898), by a Sessions Judge, an Assistant Sessions Judge or a Magistrate of the first class respectively, exercising competent jurisdiction under the said Code.

9. In other words, the sentences passed by the Special Courts cannot be set aside on the ground that those sentences were passed by a Court that had no jurisdiction to do so, and the appeals and revisions have to be heard and decided on the merits. That the answer to the question under consideration is beset with considerable difficulties is apparent not only from the fact that the view taken by Sen J. did not find favour with Derbyshire C. J. and Khundkar J. and further that the view taken by all these three eminent Judges did not commend itself to the Patna and the Madras High Courts, but also from the fact that there is not even unanimity between the three Judges constituting the present Bench and my brother Bajpai J. is disposed to agree with the view taken by Sen J. To say the least the matter is involved in great doubt and that doubt will be set at rest only on an authoritative pronouncement by the Federal Court where, I am given to understand, appeals raising the question under consideration are pending.

10. In these circumstances if I adopt the one view or the other, it is obvious that I do so with great diffidence and with equal respect to the learned Judges from whom I dissent. After giving due weight to the arguments that have been addressed at the Bar, and giving the question my best consideration I am disposed to agree with the decisions of the Patna and the Madras High Courts, and I respectfully adopt the reasons given by the learned Judges of those Courts in support of the conclusions arrived at by them. I shall, however, summarize, as briefly as possible, the reasons that have led me to adopt this course. It is admitted that proclamation under Section 102, Constitution Act, was made by the Governor-General and it is, therefore, manifest, in view of the provisions of Section 102, read with Section 316 of that Act, that the Indian Legislature has the power to make laws with respect to all the matters enumerated in Schedule 7 of the Act. It is also clear that the power vested in the Governor. General by Section 72 of Schedule 9 to make and promulgate ordinances is co-extensive with the power of the Indian Legislature to make laws. It is true that the power so vested in the Governor-General can be exercised by him only in cases of emergency and 'for the peace and good government of British India or any part thereof,' but with respect to these matters the Governor-General is the sole and final judge, and the validity of an ordinance cannot be questioned in a Court of law either on the ground that no emergency existed or that the ordinance is not 'for the peace and good government of British India or any part thereof.' It follows that if the Indian Legislature was competent to enact provisions similar to those contained in Ordinance 19, the ordinance must be held to be valid and intra vires the Governor-General. In arriving at this conclusion I have not overlooked the observations made by Varadachariar C. J. in Emperor v. Benoari Lal Sarma and by Zafrulla J. in Emperor v. Sibnath Banerjee ('43) 30 A.I.R. 1943 P. C. 75 and the connected appeals as regards the 'fundamental point of difference' between legislation by ordinance and normal legislation. In my judgment, however, the points of difference between the two types of legislation indicated in the two cases just mentioned do not affect the question before me.

11. The question for decision is, therefore, narrowed down to this : Is it within the competence of the Indian Legislature to pass an Act containing provisions identical to those contained in Ordinance 19 In the consideration of this question, one must take note of the fact that it is well settled that even though the powers of the Indian Legislature are 'limited by the Act of Parliament which created it,' that Legislature has, when acting with those limits, plenary powers of legislation as large and of the same nature as those of Parliament itself,' vide Empress v. Burah ('79) 4 Cal. 172, United Provinces v. Atiqua Begum , and Emperor v. Benoari Lal Sarma and 54. The validity of Sections 1, 2, Sub-sections (2) and (3) of Section 3 and of Sections 4 and 5 of the Ordinance was not assailed before us and the whole controversy centred round Sub-section (1) of Section 3.

12. In the determination of the question relating to the validity or otherwise of Sub-section (1) of Section 3, one must, at the very outset, ascertain the meaning, purpose and effect of that sub-section. Sub-section (1) of Section 3 does, in my judgment, subject to the right of appeal and power of revision given by Sub-section (2), validate the sentences passed by Special Courts under Ordinance 2 even though those Courts had no jurisdiction to pass the sentences. Its purpose, I believe, was to prevent automatic obliteration of the sentences passed by the Special Courts which was the logical consequence of the decision in Emperor v. Benoari Lal Sarma . This is clear from the opening words 'confirmation and continuance, subject to appeal, of sentences' used in Sub-section (1). These words are an integral part of the sub-section, and not mere marginal notes, and must be given due weight in construing the sub-section. Apart form this, if it was the intention to validate the sentences only up to the time that the appeal allowed by Sub-section (2) came before the Court concerned, or the power of revision given was put into operation, the words 'shall continue to have effect' would not have been used in Sub-section (1). Indeed, if such was the intention of the Governor. General, Sub-section (1) would not have been worded in the manner that it has been done, and nothing would have been easier than to say that the sentences shall have effect only up to a limited point of time. There are, however, no such words of limitation in that sub-section and the words used are words of general and wide import. The effect of that sub-section, therefore, is to make the sentences immune from the attack that they were imposed by a Court of incompetent jurisdiction. To put the matter in another way. A Court exercising appellate or revisional jurisdiction under the Code of Criminal Procedure is bound to quash a sentence passed by a Court without jurisdiction. The combined effect of Sub-sections (1) and (2) of Section 3, is to restore the right of appeal and the power of revision given by the Code that was practically denied by Ordinance 2, but the jurisdiction so vested in the appellate and the revisional Courts by Sub-section (2) is subject to the all important condition that those Courts must approach the consideration of the appeals or revisions on the assumption that the sentences passed by special Courts were passed by Courts of competent jurisdiction. To this extent no doubt Sub-section (1) modifies the provisions of the Code, but this is permissible as pointed out by Zafrulla Khan J., in Emperor v. Sibnath Banerjee ('43) 30 A.I.R. 1943 P. C. 75. The learned Judge in the course of his judgment observed as follows :

It was not disputed--except by counsel for the Punjab detenus--that an Ordinance may in effect modify the operation of a statute by enacting something repugnant to the provisions of the latter.... It could not be said that it wag beyond the power of the ordinance-making authority to exclude certain of the provisions of the Criminal Procedure Code in certain specified classes of cases; indeed, Section 1(2) of the Code recognises this possibility. Here again, it will be difficult to maintain that this result can be achieved only by a self-contained Ordinance and not by one which purports to modify or exclude certain provisions of the pre-existing law : page 158.

13. Bearing in mind the nature and scope of Section 3 and the other provisions contained in the impugned Ordinance, the Ordinance does, to my mind, fall within the purview of item 2 of the Concurrent Legislative List. It was observed by Sir Maurice Gwyer C. J. in United Provinces v. Atiqua Begum , that

none of the items in the lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.

13. The Ordinance deals with some of the matters dealt with by the Code of Criminal Procedure, e. g., it makes provision about appeals and revisions as also about sentences, and, as such, comes within item 2 of the Concurrent List. It is thus clear that the Ordinance deals with a matter falling within the field of legislation entrusted to the Indian Legislature. It follows that the Governor-General in the exercise of his ordinance-making power was competent to make and promulgate the Ordinance.

14. But it is contended that it is not within the competence of the Governor-General to validate by a subsequent Ordinance a previous Ordinance that was held by the Federal Court to be ultra vires his ordinance-making power. There are two answers to this contention. In the first place, the Federal Court did not, in Emperor v. Benoari Lal Sarma , hold that the Governor. General had not the authority to provide for the constitution of Special Courts and that his action in this respect was ultra vires. All that the Federal Court held was that the method adopted to invest such Courts with jurisdiction to try specified cases was open to grave objections and, as certain sections of the Code had not been repealed, and no legislative provision was enacted laying down the policy or conditions for the determination of the class of cases to be tried by the Special Courts, those Courts did not acquire the jurisdiction that was intended to be conferred on them. In the second place, ordinance 19, far from attempting to rectify the omissions in Ordinance 2, repeals that Ordinance with this reservation that it validates the sentences passed by the Special Courts. Such legislation is not novel and instances of such legislation are inter alia furnished by, (1) The Marriage Validation Act, 2 of 1892; (2) Transfer of Property Validating Act, 26 of 1917; (3) Decrees and Orders Validating Act, 5 of 1937; (4) U.P. Validation of Registration Act, 4 of 1894 (local); (5) Almora Honorary Assistant Collector Decrees and Orders Validating Act, 11 of 1938 (local). Apart from all this, it seems to me that the decision of the Federal Court in Emperor v. Sibnath Banerjee ('43) 30 A.I.R. 1943 P. C. 75 sets at rest all doubts on the point. The Federal Court on 22nd April last held that Rule 26, Defence of India Rules, was ultra vires as it went beyond the rule-making power conferred on the Central Government by the Defence of India Act. The Governor-General then on 28th April promulgated ordinance 14 of 1943 and Section 3 of that Ordinance was as follows :

For the removal of doubts it is hereby enacted that no order heretofore made against any person under Rule 26, Defence of India Rules, shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2, Defence of India Act, 1939.

15. This provision, even though it validated, orders for detention under a rule that was ultra vires, was held by the Federal Court to be valid. There is practically no difference in substance between Section 3 of Ordinance 14 and Sub-section (1) of Section 3 of Ordinance 19. All that Sub-section (1) does is to validate sentences passed by officers who had not the jurisdiction to hold the trials. 'The operativeness of such a provision is,' as observed in Emperor v. Sibnath Banerjee ('43) 30 A.I.R. 1943 P. C. 75,

of course, subject to the limitation referred to by Willes J. in Phillips v. Eyre (1870) 6 Q. B. 1 at p. 17 that the authority which enacts it must be one which could have authorized by antecedent legislation the acts done:' otherwise, by the device of precluding an investigation by the Court, a legislative authority would be able to do indirectly what it could not do directly.

16. Now, it cannot be disputed that if the Governor-General had, in making and promulgating ordinance 2, avoided the mistakes and omissions pointed out in Emperor v. Benoari Lal Sarma the Courts constituted by that Ordinance would have been Courts of competent jurisdiction. It is, therefore, clear that by 'antecedent' legislation the Governor-General was competent to constitute Special Courts and to invest them with jurisdiction to try the cases which culminated in the sentences that were validated by Sub-section (1) of Section 3. The Governor-General had, therefore, the authority to validate all acts done and the sentences imposed by such Courts.

17. The validity of Sub-section (1) of Section 3 was challenged yet on another ground. It was urged that it is not open to the Governor-General to give retrospective effect to an Ordinance and in support of this contention reliance was placed on certain passages in the judgment delivered by Zafrullah Khan J. in Emperor v. Sibnath Banerjee ('43) 30 A.I.R. 1943 P. C. 75. In my judgment the contention is without force. Sub-section (1) has not retrospective effect. It speaks from the moment that it was made and promulgated. When it ordains that the sentences 'shall have effect,' and 'shall continue to have effect,' it means that the sentences will be operative from 5th June 1943 the date on which ordinance 19 was enacted.

18. Lastly, reference was made to certain alleged 'anomalies' and 'practical difficulties' that would result if Sub-section (1) of Section 3 is interpreted in the way that I have done and is held to be valid and binding. In this connexion, our attention was drawn to the observations made by Derbyshire C. J. and Khundkar J. in the course of their judgments as regards 'a notional trial' and 'illusory right of appeal.' These considerations, in my judgment, cannot affect the validity of Sub-section (1) of Section 3. If Sub-section (1) is intra vires the ordinance-making power of the Governor-General, it is the duty of the Courts of law to give effect to it irrespective of the anomalies and difficulties, imaginary or otherwise, to which it may lead. It is well settled that 'with the wisdom or expediency or policy of an Act, lawfully passed, no Court has a word to say' and that

it is the province of the statesman, not of the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the Judge to expound the law only:

vide Street on Ultra Vires, 1930 Edition, pages 439 and 440.

19. For the reasons given above I hold that Sub-section (1) of Section 3 is valid and operative and that Ordinance 19 is intra vires the ordinance-making power of the Governor-General.

Allsop, J.

20. I agree with the conclusions of the learned Chief Justice. As we were referred to a passage in Stubbs' Constitutional History of England on the subject of the distinction between statutes and ordinances, I think it is necessary to point out the danger of the fallacy of equivocation. The term 'ordinance' in Schedule 9, Government of India Act, has not necessarily the same meaning as it has in the passage to which our attention was drawn. It was doubtless used in the schedule in the first instance because an ordinance was to have effect only for a certain period but that limitation has now been withdrawn. It may be, as the learned Judges of the Federal Court have observed, that it is intended that ordinances should be temporary but that is a matter of policy, not of law. It is possibly the intention to have them re-considered at some time by legislative assemblies or councils bat they will at no time automatically cease to have effect. They will continue in operation till they are repealed and in that respect they do not differ from any Act or Statute. It is to be remembered too that the promulgation of an Ordinance is not an executive but a legislative action. The Government of India Act has given the Governor. General legislative powers in times of emergency and he is the sole judge of the question whether an emergency exists. It may appear wrong to some that legislative functions should be exercised by a single person but it is our duty to construe the Act as it is and not to question the policy upon which it is based. In the circumstances, which existed when Ordinance 19 of 1943 was made that Ordinance had the same force as an Act of any legislative body created by the Government of India Act and the Governor-General had the same legislative powers as any such body would have had. As that is so, it seems to me wise in order to avoid the danger of any unrecognised effective influence to test the validity of the Ordinance as though it was the Act of a legislative body.

21. If the Ordinance had been such an Act I can see no ground on which its validity could have been questioned. There is no provision in the Government of India Act preventing the Legislature from creating Courts of any kind for the trials of criminals or from laying down any procedure which such Courts should follow. The Federal Court held that it was within the competence of the Governor-General to create Special Courts with their own procedure for the trial of offenders of certain types. It found that Ordinance 2 of 1942 was defective not in substance but in form, partly because it did not expressly repeal certain sections of the Code of Criminal Procedure and partly because it did not itself decide which cases were to go before the Special Courts. The Legislature could have re-enacted Ordinance 2 of 1942 after removing these formal defects and there is no question of its attempting to do indirectly what it could not do directly.

22. If the persona designata who presided over the Special Courts set up by Ordinance 2 of 1942 had no power to try and punish offenders their position was no better or worse than that of Courts Martial and I can see no reason why the principles laid down in Tilonko v. Attorney General of Natal (No. 1) (1907) 1907 A. C. 93 should not apply to this case. The fact that these persons happened also in other capacities to preside over regular criminal Courts would make no difference. When they dealt with cases under the ordinance, they did not purport to exercise jurisdiction under the Code of Criminal Procedure. If they had no jurisdiction under the ordinance, they had no jurisdiction at all, no more jurisdiction than a military officer or anybody else who took it upon himself to try and punish an offender. The fact that Natal has a Sovereign Legislature and India Subordinate Legislatures does not, in my judgment, affect the issue. Except in so far as the powers of the Indian Legislatures are expressly limited by the Government of India Act they are 'plenary powers as large and of the same nature as those of Parliament itself.' There is nothing in the Government of India Act to prevent an Indian Legislature from passing a validating Act of the kind with which their Lordships of the Privy Council were dealing in Tilonko v. Attorney General of Natal (No. 1) (1907) 1907 A. C. 93.

23. It was suggested that Ordinance 19 of 1943 did not deal with any subject within the Legislative Lists except possibly preventive detention. It certainly does not deal with that subject. It deals with the punish-ment of criminal offences already committed and I cannot understand how that matter can be excluded from the denotation of criminal law and criminal procedure. We were referred to some remarks made in a treatise on the Constitution of the United States of America which, in my judgment, are not relevant. The powers of Legislatures in the United States are limited by the written Constitution of that country which lays down certain fundamental rights. The powers of the Legislatures in India are limited only by the Government of India Act which is in quite different terms and makes no reference to any such rights. I can see no reason for holding that Ordinance 19 of 1948 is invalid and difficulties (if any) in applying it would not make it so. I hold that the ordinance is intra vires and that the sentences passed by the Special Courts are valid till set aside on their merits by an appellate Court.

Bajpai, J.

24. One appeal and four miscellaneous proceedings are listed before us, and it is not necessary for me to state in detail what these five proceedings are, but it is sufficient to say that in each one of them the general effect of the Repealing Ordinance, 19 of 1943, has got to be considered. Prior to this Ordinance, Ordinance 2 of 1942 had been promulgated by which certain Special Criminal Courts were constituted, and the applicants in the present cases were tried under the above Ordinance. Most of the High Courts in India, including this Court, had held the Special Criminal Courts Ordinance (ordinance 2 of 1942) intra vires, but the Calcutta High Court in Emperor v. Benoari Lall Sarma : AIR1943Cal285 was of the view that certain sections of the said Ordinance were ultra vires, and on 4th June 1943 the Federal Court by a majority affirmed the judgment of the Calcutta High Court. It will be convenient at this stage to state exactly what the Federal Court decided about Ordinance 2 of 1942, and I can do no better than quote the views of the majority as put down in the head-note of Emperor v. Benoari Lal Sarma :

Under Section 292, Government of India Act, 1935, so long as Sections 5, 28 and 29, Criminal P. C., have not been 'altered, repealed or amended by a competent Legislature or other competent authority' those provisions of the Code must govern every criminal proceeding both as regards the tribunal by which a crime is to be tried and as to the procedure to be followed. The Special Criminal Courts Ordinance, 2 of 1942, has not by itself repealed Sections 28 and 29, Criminal P. C. It is only the order of the executive authority passed under Section 5, 10 or 16 of the Ordinance, in respect of each case or group or class of cases that in fact operates to repeal those provisions of the Code, to divest the regular Courts of their jurisdiction and to invest the Special Courts with jurisdiction to try any particular case or group or class of cases. Such executive orders cannot in law have any such effect and therefore Sections 5, 10 and 16 of the Ordinance are open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion, without any legislative provision or direction laying down the policy or conditions with reference to which the power is to be exercised.

25. The learned Advocate-General threw a challenge to the counsel for the appellant and the petitioners to show if the Federal Court had anywhere used the word 'ultra vires' in connection with the Repealed Ordinance. It may be conceded that the word 'ultra vires' has not been used by the learned Judges of the Federal Court, but this is only a verbal difference. There cannot be the slightest doubt that their Lordships arrived at certain definite conclusions on the main grounds of attack against the validity of the Ordinance, and a perusal of those grounds makes it abundantly clear that Sections 5, 10 and 16 of the Repealed Ordinance were open to grave objections. From the point of view of the Government, a serious situation was brought into existence, for thousands of people had been convicted throughout the length and breadth of British India under the Special Criminal Courts Ordinance and were undergoing terms of imprisonment and had paid fines. The genesis of the Repealing Ordinance (No. 19 of 1943) is, therefore, fairly obvious; and it is set out in the latter ordinance that whereas an emergency had arisen which made it necessary to repeal the Special Criminal Courts Ordinance, 1942 (2 of 1942) and to provide for certain matters in connection with such repeal, the Governor-General was pleased to make and promulgate the Repealing Ordinance, in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9, Government of India, Act, 1935 (26 Geo. v., C. 2). I shall have myself to consider the five provisions of the Repealing Ordinance later on. At present I may say at once that the High Courts of Madras, Patna and Bombay have held that the effect of the Repealing Ordinance is to validate the trials and sentences passed under the Special Criminal Courts Ordinance, and the Calcutta High Court has held that no such result is achieved.

26. The Repealing Ordinance consists of five sections. The first section says that the Ordinance may be called the Special Criminal Courts (Repeal) Ordinance 1943, and shall come into force at once. The second section says that the Special Criminal Courts Ordinance, 1942, (hereinafter referred to as the said Ordinance) is hereby repealed. The third section which deals with confirmation and continuance, subject to appeal, of sentence, says in effect that a sentence passed by the Special Courts shall continue to have effect as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure, 1898, and notwithstanding anything contained in any other law any such sentence shall be subject to such rights of appeal as would have accrued and to such powers of revision as would have been exercisable under the said Code if the sentence had at a trial so held been passed on the date of the commencement of this Ordinance. The fourth section says that where the trial of any case pending before a Court constituted under the said Ordinance has not concluded before the date of the commencement of this Ordinance the proceedings of such Court in the case shall be void, and the case shall be deemed to be transferred to certain other Courts who will enquire into or try the case in accordance with the Code of Criminal Procedure, 1898. The fifth section provides for indemnity in the cases of servants of the Crown for passing any sentence under the said Ordinance or for carrying out any sentence passed by the Special Criminal Courts. It might be made clear that wherever the words 'the said Ordinance' are used, the reference is to the Special Criminal Court Ordinance, and wherever the words 'this Ordinance'' are used the reference is to the Repealing Ordinance.

27. The decision in Benoari Lal Sarma's case was given by the Calcutta High Court, on 21st April 1913, and the decision by the Federal Court in the same case was given on 4th June 1943. The Repealing Ordinance came into force on 5th June 1943. The Government must, therefore, be deemed to have been on their guard ever since 21st April 1943, and I cannot, therefore, assume that the Repealing Ordinance was enacted in a hurry and therefore it should be construed in a spirit favourable to the Crown. All penal enactments, as a rule, are interpreted in an atmosphere free from all bias and, if necessary, where there is an ambiguity, in favour of the subject. There is a slight difference between ordinary legislation and legislation by ordinance. Stubbs in his book on Constitutional History of England, vol. II, p. 615, points out the difference between an ordinary statute and an ordinance in the following passage which might be quoted with advantage :.the statute claims perpetuity; it pretends to the sacred character of law, and is not supposed to have been admitted to the statute roll except in the full belief that it is established for ever. The ordinance is rather a tentative act which, if it be insufficient to secure its object or if it operates mischievously, may be easily recalled, and, if it be successful, may by a subsequent act be made a statute.... The fundamental distinction appears to lie far deeper than anything here stated, while in actual use the statute and the ordinance come more closely together. The statute is primarily a legislative act, the ordinance is primarily an executive one.

28. And the Federal Court in Benoari Lall's case has said:

Though legislation by ordinance has been given the same effect as ordinary legislation and the ambit as to the subject-matter is the same in both cases, there are two fundamental points of difference. One is that by the very terms of Section 72 of Schedule 9,. Constitution Act, the operation of the ordinance is limited to a period of 6 months (and even now it is only temporary, though the particular limit has been removed), and secondly, it is avowedly the exercise of a special power intended to meet an emergency. These two circumstances differentiating legislation by ordinance from normal legislation afford ground for doubting the applicability of the principle of Burah's case to ordinances. Further, it is only consistent with the special character of this kind of law-making that the responsibility for it should have been laid on the Governor-General whose personal judgment and discretion must be taken to be a very important factor. It may be that his position cannot be described as that of an 'agent' or 'delegate,' but the very conception underlying the ordinance-making power so connects it with the personal judgment and discretion of the Governor-General that the objection against delegation to subordinate executive authorities of any matter of principle is oven more serious In this case. [Head-note of Emperor v. Benoari Lal Sarma ],

29. This is perhaps not a matter of great importance for it may be conceded that under Section 72 of Schedule 9, Constitution Act, the Governor-General can promulgate ordinance within the ambit of his power and the ordinance will have the same effect as an ordinary law, but its temporary character has to be borne in mind. It may be said that all legislation in a sense is temporary, but this is not quite accurate. It is true that legislation can be repealed and then its force is lost, but an Ordinance by its very nature is temporary for it is limited to the period of emergency which has come into existence and an emergency is in its character, more or less, ephemeral.

30. Validating Acts are not unknown to law, and Derbyshire, C. J., in Sushil Kumar Bose v. Emperor : AIR1943Cal489 has mentioned some of the Validating Acts. Broadly speaking, the Validating Acts are of two kinds : (1) where it is intended to validate an act done by another person when that person had no power to do that act, provided the lack of power in that person does not arise from any want of legislative power in the authority seeking to validate the act; (2) where the illegal and void act sought to be validated is the result of lack of power in the authority which seeks to validate it. In the former case, the validation will be all right, but in the latter ease, according to my view, the validation will be futile, as it will be an attempt to exercise a power which ex hypothesi did not exist. In the statutes referred to by the learned Advocate-General the defect in the Acts sought to be validated did not proceed from any want of power in the Legislature validating those Acts; but where, for example, a particular Legislature has no power to legislate with respect to persons and things beyond a certain territory but erroneously passes an Act which affects such persons and things and attempts to bring about certain jural relation, then upon the discovery of the mistake and after knowledge that the Legislative Act was void, it would not be open to the same Legislature to declare that that Act was a valid one, because that would amount to a repetition of the same mistake. Legitimate legislative devices are well-known, but the present legislation, to my mind, is not amongst those legislative devices. By Section 5 of this Ordinance indemnity is granted clearly for acts done under the Special Criminal Courts Ordinance, and by Section 4 it is clearly provided that where the trial of cases pending before the Special Criminal Courts has not concluded at the date of the commencement of the Repealing Ordinance the proceedings of the Special Criminal Courts shall be void ; but I do not think that the sentences passed by the Special Criminal Courts in concluded trials have been legalised. In this matter Section 3 and the general effect of the Repealing Ordinance --its pith and substance -- has got to be considered. The general effect may be said to be the repeal of the Special Criminal Courts and the provisions of Section 4 and the result of the Federal Court decision make it quite clear that the trials by the Special Criminal Courts are absolutely void. Is it possible then to argue that although the trials were held by the Special Criminal Courts not invested with proper jurisdiction, the sentences passed by them would be justified It might be argued that all that matters between the subject and the Crown is the sentence for all practical purposes, but with all respect I make bold to assert that the trial and a valid trial also is of great importance. As has so often been said, 'Justice should not only be done but should appear to be done;' and the appearance of justice, and even the semblance of it, can be obtained only when the trial is regular. The Special Criminal Courts are repealed and yet their sentences are said to be operative. The trials are rendered void, the process through which the sentence has been passed is without jurisdiction and yet it is said that the sentence or, in other words, the punishment is effective. Ordinance 19 of 1943 validates sentences passed under Ordinance 2 of 1942, and this is endeavoured to be done by the employment of fiction. As regards the meaning of the expression 'deemed to have been' employed in Sub-clause (3) of Section 3, the observations of their Lordships of the Privy Council in Commissioner of Income-tax, Bombay v. Bombay Trust Corporation Ltd , are pertinent and they are as follows :

Now when a person is 'deemed to be' something, the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were.

31. By the use of legal fiction, the sentences which were nullities are revived and treated as sentences passed by a Sessions Judge, an Assistant Sessions Judge or a Magistrate of the first class. Legal fiction is a 'portent contrivance,' and Section 537, Criminal P. C., is very often utilised for curing certain errors, omissions and irregularities, but under cover of legal fiction death sentences cannot be resurrected. The Repealing Ordinance operates on sentences which came into existence before the Ordinance was passed, and Ordinance 2 of 1942 and the sentences passed under it are dead. But if an authority has no power to bring about a certain result directly, it cannot bring about the same result indirectly by the employment of a fiction. Ordinance 2 of 1942 created Courts but did not invest them with jurisdiction over any class of cases or persons but left it to the executive to invest those Courts with the requisite jurisdiction, and this the Governor. General had no power to do under the Constitution Act. The result was that all proceedings before such Courts were ultra vires, and the sentences and convictions were nullities and did not exist in the eye of law. By Ordinance 19 of 1943, the same sentences passed by the same Courts which were not properly invested with jurisdiction are validated by the employment of a 'colourable device.' And in substance and in truth the Governor-General says in effect :

Although I have not properly invested the Special Courts with jurisdiction, although the proceedings before such Courts were nullities and although the convictions were therefore void, yet without bringing into existence Special Courts with jurisdictions validly conferred, I declare and say that those sentences passed by those Courts are valid and should be treated as sentences passed by other Courts which are already in existence.

32. If this in fact is the result of the new legislation, then is not the Governor-General usurping judicial powers and is it not in effect and substance as if he himself is pas-sing the sentences? And I believe it is firmly established that the executive can-not usurp the functions of a Court and pass a sentence. So far as the powers of the Legislature are concerned, there is only one provision that I know of which can legislate in this direction, and that is provided for in List 2, and the Legislature can pass a law regulating 'preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention' (List 2, No. 1); but this is a different thing from passing a sentence. The sentences, according to the Repealing Ordinance, still stand firmly rooted in a jurisdiction which, it is insisted, is good, although as a result of the Federal Court decision they stand rooted in proceedings taken by Special Criminal Courts which had not been invested with jurisdiction properly. Speaking about the validity of the sentence I feel inclined, though not in a spirit of levity, to quote what Tennyson said about Lancelot :

His honour rooted in dishonour stood:

and faith unfaithful kept him falsely true.

There is a distinction between Sovereign legislation and subordinate legislation. Legislation by Parliament is a Sovereign legislation and legislation by the Governor-General or the Central Legislature or the Provincial Legislature is a subordinate legislation. The Constitution Act, namely the Government of India Act, 1935, is

enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same,

and no Court in India or in England can question the validity of anything contained in the Constitution Act. The same, however, cannot be said of an Act passed by the Central Legislature or an Ordinance promulgated by the Governor-General. A subordinate Legislature has limitations upon its law-making powers. It can legislate only in respect to matters over which it has jurisdiction and Courts can declare (as indeed the Federal Court has declared certain provisions of the Special Criminal Courts Ordinance ultra vires) that in certain respects the subordinate Legislature has exceeded its powers. As Sen J. observes in Sushil Kumar Bose v. Emperor : AIR1943Cal489 :

It follows from this that non-Sovereign Legislature which has made a law which is ultra vires of itself cannot by a subsequent act declare such law or any part thereof to be intra vires. To permit this would be to permit a Legislature with powers limited by some authority to enlarge its powers by its own act without reference to the authority creating it. Now if this cannot be done directly, obviously it cannot be done indirectly by means of drafting or other devices.

33. Section 72 of Schedule 9, Government of India Act, cannot be questioned because it is the result of sovereign legislation, but the provisions of the Ordinance (being promulgated by the Governor-General who is subordinate to Parliament) can be scrutinised and in proper cases can be declared ultra vires where they are beyond the powers conferred by the Constitution Act.

34. It is said on behalf of the Crown that certain rights of appeal against the sentences have been provided in Section 3(2) of the Ordinance and they are sufficient safeguards, but it must be conceded that the validity of Clause (1) of Section 3 is to be determined by that clause alone and not by a reference to Clause (2). But I am of the opinion that this right of appeal is, more or less, illusory. A notional trial has come into existence, and the trial by a Special Judge is deemed to be a trial by a Sessions Judge and one by a Special Magistrate by an Assistant Sessions Judge and one by a Summary Court by a Magistrate of the first class, and it is provided that the prior trials should be deemed to have been conducted by a Sessions Judge, an Assistant Sessions Judge and a Magistrate of the first class respectively exercising competent jurisdiction under the Code of Criminal Procedure. Now under the Criminal Procedure Code Sessions Judges and Assistant Sessions Judges conduct their trials with the help of a jury or with the help of assessors. Under Section 418, Criminal P. C., in trials by jury appeals lie only on questions of law. If, therefore, regard is paid to the provisions of Clause (2) questions of fact cannot be agitated in connection with those offences where the trial by the Sessions Judge and the Assistant Sessions Judge in respect to a particular offence would, under the law, have to be conducted with the help of a jury. Where previous trials were held by a Summary Court, the convicted persons will have a right of appeal on questions of fact, but as the Repealed Ordinance had special rules of evidence and special rules of procedure it will not be open to the appellants to show that certain procedure provided by the Criminal Procedure Code was violated and certain rules of evidence enunciated in the Evidence Act were not followed. Apart from that, the pith and substance of the Repealing Ordinance is that the former proceedings are rendered void and it will be necessary for the appellate Court to look into those void proceedings and to try and administer justice within a narrow compass. I do not, therefore, think that the right of appeal is, in any sense, a valuable right.

35. I shall now discuss some of the important cases which have a bearing on the point under consideration. The learned Advocate-General relied strongly on Tilonko v. Attorney General of Natal (No. 1) (1907) 1907 A. C. 93. The learned Judges of the Madras High Court in A.I.R. 1943 Mad. 602 also fortified their views by a reference to that case. That case arose out of an application for special leave to appeal to His Majesty in Council from a judgment of a Military Court and the sentence following thereon. The petitioner there was indicted before a Court Martial claiming to sit under a declaration of Martial Law for the crimes of sedition and public violence. The petitioner objected to the trial on the grounds that he was not a military man, had not been taken in the field, had never taken up arms against the Govern-ment, that the state of the country was not such as to justify his being tried before a Court Martial and that the civil Courts before whom he had a right to be tried had in no way been interrupted in their functions and were then sitting. The petitioner submitted that his trial before the military tribunal was without jurisdiction and illegal. Leave to appeal was refused and in delivering the judgment of the Privy Council the Earl of Halsbury first of all referred to the fact that Martial Law was really no law at all and then pointed out that an Act of Parliament had been passed in Natal which in terms enacted the legality of the sentences passed by Court Martial and provided that they shall be deemed to be sentences passed in the regular and ordinary course of criminal jurisdiction.

36. Chalmers and Asquith in their book on Outlines of Constitutional Law, 3rd Edn., p. 203, noted this case and were of the opinion that it was an authority for the proposition that an English Court could not enter into the propriety, as opposed to the legal validity, of a colonial statute. To the same effect is the opinion of Ridges in his book on Constitutional Law of England, 6th Edn., p. 491. Lord Halsbury in his Laws of England, Hailsham Edition, vol. 11, p. 231, speaking of this case says that the committee is a Judicial Tribunal and will not admit appeals from an authority exercising executive authority only, as in the case of the grant of sanction to a petition of right, or as in that of Martial Law Tribunals. I have already in an earlier portion of nay judgment pointed out the difference between sovereign legislation and subordinate legislation, and in a book written by Hon'ble R.H. Brand on the Union of South Africa it appears at page 43 that

the Parliament of the Union, and not the constitution, is supreme; power is not distributed among bodies with limited and co-ordinate authority, but resides ultimately in the Parliament; the Courts will have no more authority than they have in Great Britain to act as interpreters of the constitution. It is from the principle of the supremacy of Parliament that flow all the fundamental differences between a federal constitution and a unitary constitution such as that framed for South Africa.

37. Lord Halsbury in the judgment in Tilonko v. Attorney General of Natal (No. 1) (1907) 1907 A. C. 93 says :

This board has no power to review these sentences, or to enquire into the propriety or impropriety of passing such an Act of Parliament. The only thing for persons who are subject to such an Act of Parliament to do is to obey. The question in this case arises under the Natal Act of Parliament in respect of offences committed in Natal, which Act has been assented to by the Governor and, having the force of law, is binding on their Lordships.

38. I, therefore, feel that this case can be distinguished and is of no real help to the contention advanced on behalf of the Crown. The Natal Indemnity Act was passed by Parliament and was sovereign legislation and leave to appeal was sought against the decision of a Court Martial which was really not a Court of Justice. The next case is that in Trustees of the Roman Catholic Schools for Ottowa v. Quebec Bank ('19) 6 A.I.R. 1919 P. C. 96. The facts of this case are that the trustees of the Roman Catholic Schools in Ottowa neglected to perform their duties and the Legislature of Ontario passed an Act by which commissioners were appointed to assume the management of the schools. In the course of their management they drew moneys from the school funds and spent them. The above Act was declared to be ultra vires in Ottowa Roman Catholi Separate Schools v. Ottowa Corporation ('16) 3 A.I.R. 1916 P. C. 267. The result was that the commissioners were removed and the old trustees were restored to the management of the schools. The trustees, therefore, instituted a suit against the commissioners for the refund of the moneys spent by the commissioners on the ground that the Act which empowered the commissioners to take up the management of the schools was ultra vires. While this litigation was pending the Legislature passed another statute by which it was declared that the payments made by the commissioners were such as were necessary and that they should be deemed to have been made at the request of the board of trustees and the commissioners were, therefore, indemnified against all actions for the recovery of those sums.

39. In the suit instituted by the trustees the commissioners invoked the provisions of the new Act in defence. The board of trustees contended that the Act was ultra vires. The statute was held to be a good defence to the action both by the Supreme Court of Ontario and by the Privy Council. H. A. Street in his book on the Doctrine of Ultra Vires refers to this case at p. 440 and says that although the new statute looks very much like the ratification of an ultra vires act by the party guilty of it, but it is not really so because Lord Dunedin in his judgment pointed out that it did not seek to obliterate past history, but only declared that the payments made for the carrying on of the schools were good payments. The ordinance, however, seeks 'to obliterate past history' and to that extent would be ultra vires. So far as it indemnifies certain persons it would be intra vires, but for the rest it tries to give validity to the trials held by the Special Criminal Courts and justifies the sentences which have been passed not in lawful trials but in void trials by resort to a fiction. In Trustees of the Roman Catholic Schools for Ottowa v. Quebec Bank ('19) 6 A.I.R. 1919 P. C. 96 the rights of the trustees might be said to have been affected but it was not prejudicially affected. The disbursements made by the commissioners would have been made by the board of trustees themselves if they had been left in management of the schools, and as Street points out, 'Where no moral injustice is done, there can be no difficulty in retrospective legislation;' but in a case like the present where we are discussing the ordinance, the ordinance might be held to be 'ultra vires of those common law principles which must be regarded as universal within the Empire.' Trustees of the Roman Catholic Schools for Ottowa v. Quebec Bank ('19) 6 A.I.R. 1919 P. C. 96 and Ottowa Roman Catholi Separate Schools v. Ottowa Corporation ('16) 3 A.I.R. 1916 P. C. 267 (the two cases mentioned above) have been cited by the learned Advocate-General, and counsel for the petitioner has drawn our attention to Cooley's Constitutional Limitations, Edn. 8, Vol. 1, p. 206, where certain principles have been enunciated and support for those principles has been sought by a reference to certain American cases. Reliance has also been placed on the case in In re. C. P. Motor Spirit Taxation Act and 37 where the learned Chief Justice has observed that cases of the American Courts often afford safe guides for determining and deciding a vexed question. Cooley says as follows at pp. 205 and 206:

We are elsewhere referred to a number of cases where statutes have been held unobjectionable which validated legal proceedings, nothwithstanding irregularities apparent in them. These statutes may as properly be made applicable to judicial as to ministerial proceedings; and although, when they refer to such proceedings, they may at first seem like an interference with judicial authority, yet if they are only in aid of judicial proceedings, and tend to their support by precluding parties from taking advantage of errors which do not affect their substantial rights, they cannot be obnoxious to charge of usurping judicial power. The Legislature does, or may, prescribe the rules under which the judicial power is exercised by the Courts; and in doing so it may dispense with any of those formalities which are not essential to the jurisdiction of the Court and whatever it may dispense with by statute anterior to the proceedings, we believe it may also dispense with by statute after the proceedings have been taken, if the Court has failed to observe any of those formalities. But it would not be competent for the Legislature to authorize a Court to proceed and adjudicate upon the rights of parties, without giving them an opportunity to be heard before it; and, for the same reason, it would be incompetent for it, by retrospective legislation, to make valid any proceedings which had been had in the Courts, but which were void for want of jurisdiction over the parties. Such a legislative enactment would be doubly objectionable; first, as an exercise of judicial power, since, the proceedings in Court being void, it would be the statute alone which would constitute an adjudication upon the rights of the parties; and second, because, in all judicial proceedings, notice to parties and an opportunity to defend are essential--both of which they would be deprived of in such a case. And for like reasons a statute validating proceedings had before an intruder into a judicial office, before whom no one is authorized or required to appear, and who could have jurisdiction neither of the parties nor of the subject-matter, would also be void.

40. Reference is then made by the learned author to McDaniel v. Correll 19 Ill. 226where the Court said:

If it was competent for the Legislature to make a void proceeding valid, then it has been done in this ease. Upon this question we cannot for a moment doubt or hesitate. They can no more impart a binding efficacy to a void proceeding, than they can take one man's property from him and give it to another.... This it will not be pretended that they could do directly, and they had no more authority to do it indirectly, by making proceedings binding upon them which were void in law.

41. The learned author next refers to Denny v. Mattoon 2 Alien 361 where the Judge in insolvency had made certain orders in a case pending in another jurisdiction and which the Courts subsequently declared to be void. The Legislature then passed an Act declaring that they 'are hereby confirmed, and the same shall be taken and deemed good and valid in law, to all intents and purposes whatsoever.' The Court decided that the Legislature had no power to pass such an Act. The principles laid down in these cases are applicable to the point under discussion in the present cases, and I hold the view that the sentences passed by the Special Criminal Courts under Ordinance 2 of 1942 must be quashed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //