Alfred Henry Lionel Leach, C.J.
1. In 1943 the petitioners with others were accused of being members of a conspiracy to blow up a railway bridge. Charges were preferred under Rules 35(1)(b) and (4) read with Rule 121 of the Defence of India Rules and under Section 126 of the Indian Railways Act read with Sections 34, 435 and 511 of the Indian Penal Code. They were tried under the provisions of the Special Criminal Courts Ordinance, 1942 (Ordinance No. II of 1942). The charge against the first petitioner in Crl. M.P. No. 883 of 1944 was not proceeded with and he was discharged. The second and third petitioners were acquitted. The petitioner in Crl. M.P. No. 892 of 1944 was convicted by the Special Judge, but acquitted by this Court on appeal.
2. In King-Emperor v. Benoari hall Satma and Ors. (1943) 2 M.L.J. 207 : 6 F.L.J. 79 : 1943 F.C.R. 96 the Federal Court held that certain sections of the Special Criminal Courts Ordinance, 1942, were invalid1 as they were ultra vires. The consequence was that the Governor-General promulgated the Special Criminal Courts (Repeal) Ordinance, 1943 (Ordinance No. XIX of 1943). In R. Subbarayan and Ors. v. King Emperor (1944) 1 M.L.J. 350 : 1944 F.L.J. 102 : 1944 F.C.R. 161 (F.C.) Federal Court held in respect of the persons whose convictions were confirmed by this Court that they should be retried in accordance with the provisions of Section 4 of the later Ordinance. As the proceedings under the Special Criminal Courts Ordinance, 1942, were invalid all the accused including those who had been discharged or acquitted were re-arrested and proceedings were instituted against them in the Court of the Sub-Divisional Magistrate, Mayavaram. The Magistrate committed to the Sessions Court all the accused.
3. Since their committal the Privy Council has reversed the decision of the Federal Court in King-Emperor v. Benoari Lall Sarma and Ors. (1945) F.L.J. 1 : (1945) J M.L.J. 76 and held that the' Special Criminal Courts Ordinance, 1942, was a valid enactment. In these circumstances the petitioners say that as they were discharged or acquitted by a lawful Court, the plea of autrefois acquit lies. The learned Advocate-General very properly says that this contention is well founded. The petitioners cannot-be tailed upon to stand a second trial on the same charges.
4. The petitions are allowed and the commitment order in so far as it relates to these petitioners is quashed.