1. In this case a Rule was issued upon the State of West Bengal and upon the Special Judge hearing the case to show cause why the records of the case should not be transferred to this Court under Article 228 of the Constitution of India in order that this Court should decide a constitutional point involved in the case, namely, whether Section 4(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 was ultra vires the Constitution and whether in consequence the Special Judge had any jurisdiction to hear and decide the case.
2. At the instance of the special police establishment investigation proceeded against the petitioners in respect of various offences under Sections. 120B/406, Penal Code, Sections. 467, 468 and 477A, Penal Code and those sections read with Section 109, Penal Code. By a notification of the Judicial Department of the Government of West Bengal No. 2072J., dated April 21, 1950 the case was allotted to the Special Court of the Special Judge of Alipore for trial under the provisions of Section 4(1), West Bengal Criminal Law Amendment (Special Courts) Act, 1949.
3. On 25-7-1950 a petition of complaint was filed before the Special Judge charging the petitioners with offences under the sections which I have mentioned, whereupon the learned Special Judge took cognizance of the offences and all petitioners were summoned to appear and stand their trial, and from that time the proceedings continued in respect of these offences.
4. On 29-8-1951 the petitioners filed an application before the Special Judge contending that he had no jurisdiction to hear the case by reason of the fact that Section 4(1) of the Act in question was ultra vires Article 14 of the Constitution and by the said petition the petitioners prayed the Special Judge should make a reference to this Court. The learned Judge however declined to make any reference to stay the trial and proceeded with it and therefore the Rule in the terms I have already indicated was issued.
5. The learned Advocate General has appeared on behalf of the State and we have heard a full argument upon the validity or otherwise of this section and this judgment will dispose of the whole matter and it will be unnecessary to call for the records and then deliver judgment after the records have been received. This course has been taken to avoid undue delay.
6. The West Bengal Criminal Law Amendment (Special Courts) Act, 1949 is entitled 'An Act to provide for the more speedy trial and more effective punishment of certain offences.' The preamble reads. 'Whereas it is expedient to provide for the more speedy trial and more effective punishment of certain offences.'
7. Section 2 empowers the State Government by notification in the official gazette to constitute special courts of criminal jurisdiction for various areas and by Section 3 a Special Judge can be appointed to preside over such court, the section giving his qualifications.
8. Section 4 then provides that the State Government may from time to time by notification in the official gazette allot cases for trial to a Special Judge and the remainder of this sub-section and sub-section (2) which follows are in practically the same terms as Section 12, sub-sections (1) and (2), Black Marketing Act.
9. Section 5 provides for the procedure and powers of Special Judges. The Special Judge may take cognizance of a case without the accused being committed to his court for trial and in trying the accused he must follow the procedure laid down in the Code of Criminal Procedure for warrant cases. He is to be deemed to be a court of sessions trying cases without a jury and without the aid of assessors.
10.Section 6 provides for certain rights of appeal to the High Court and for the revisional powers of that court. Section 7 bars any court transferring any case from a Special Judge and Section 8 deals with rules of evidence.
11. Section 9 deals with special provisions regarding punishment and sub-section (1) in particular provides that in addition to any sentence authorised by law, the Special Judge shall impose a further fine which shall be equivalent to the amount of money or value of other property found to have been procured by the offender by means of the offence.
12. There is also a provision that the provisions of the Prevention of Corruption Act, 1947, shall apply to trials under this Act.
13. There is a schedule to the Act setting out the cases which a Special Judge may hear by reason of the provisions of Section 4 of the Act. The sections set out in paragraphs 1, 2, 3 and 4 of the Schedule relate to offences by public servants or with respect to public servants or to offences depriving the Government of money or property.
14. The fifth paragraph of the schedule relate to offences of forgery, falsification of accounts and such like which apparently have no connection whatsoever with the offences set out in the earlier paragraphs. Paragraph 6 of the Schedule include any offence punishable under the Essential Supplies Act, 1946 and that apparently would have little connection or have anything in common with the other offences.
15. It might be difficult to hold that this Act created a class of offences which could be regarded as a good class for the purposes of Article 14 of the Constitution. A number of offences seem to have been included, some of them apparently quite arbitrarily, and, therefore, if the Act has created no valid class or classes of offences there could be no question that Section 4 of the Act would be ultra vires. That I think would follow from the decision of the Supreme Court in the case of 'RANING RAWAT v. STATE OF SAURASHTRA', : 1952CriLJ805 .
16. It is however unnecessary to consider this question in any detail because even assuming that the statute has created a class of offences, as that phrase is used in relation to Article 14 of the Constitution, nevertheless it must be held that Section 4(1) of the statute is ultra vires.
17. The first reason given in the judgment in the case 'RAM KISSEN v. STATE', Misc. Case No. 288 of 1951 (Cal) for holding that Section 12(1), Black Marketing Act is ultra vires applies with equal force to Section 4(1) of this Act. A discretionary power is given to the State to allot cases to the Special Judge or not as the State Government feel inclined. It is to be observed that the State Government do not regard Section 4 as compelling them to allot all cases of crimes set out in the schedule to the Act to Special Judges. As I have said earlier, any offence punishable under any order made or deemed to be made under the Essential Supplies Act is included in the schedule and these cases are constantly being prosecuted in the ordinary courts of the land. If Section 4(1), West Bengal Criminal Law Amendment (Special Courts) Act, 1949 was mandatory then the Government would be bound to allot each and every one of these cases to a Special Judge and this they do not do and never have done since the Act came, into force. It appears to me that the Government have a discretion in the matter and that being so, even assuming that the Act creates a valid class or classes of offence there is discrimination between persons charged with any offence falling within such class or classes.
18. For these reasons therefore I am bound to hold that Section 4(1) is ultra vires Article 14 of the Constitution and it follows that the Special Judge has no jurisdiction to hear this case.
19. This judgment applies also to Misc. Case No. 283 of 1951 'HEMANTA KUMAR v. STATE OF WEST BENGAL'. Let a copy or copies of this judgment be sent to the Special Judge or Judges concerned and they are directed to act accordingly. They must hold that they have no jurisdiction to continue the trial and must direct that the accused be held as undertrial prisoners pending a retrial according to law.
20. In our opinion these cases involve a substantial question of law as to the interpretation of the Constitution and we grant a certificate to that effect under Article 132(1) of the Constitution. We of course express no opinion as to whether the order in question is a final order and therefore appealable.
21. I agree.
S.R. Das Gupta, J.
22. I agree.