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Badri Prasad Missir and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 495 of 1952
Judge
Reported inAIR1953Cal394,57CWN350
ActsConstitution of India - Article 14; ;Code of Criminal Procedure (CrPC) , 1898 - Section 269(1)
AppellantBadri Prasad Missir and anr.
RespondentThe State
Appellant AdvocateS.S. Mukerjee and ;Subimal Som, Advs.
Respondent AdvocateJ.M. Banerjee, Adv.
Cases ReferredRam Kissen v. Stale of West Bengal
Excerpt:
- .....be either by jury, or with the aid of assessors. section 269, sub-section 1 provides that the state government may by order in te official gazette, direct that the trial of all offences, or of any particular class of offences, before any court of sessions, shall be by jury in any district. the necessary implication is that only the classes of offences so notified by the state government as triable by jury shall be tried by jury and that all other offences shall betried with the aid of assessors. this is the accepted law and it is admitted that there is no notification that the trial of offences under the essential supplies act should be by jury. it is clear therefore that the learned sessions judge was quite right in directing that the case be tried with the aid of assessors. 4. mr......
Judgment:

Sen, J.

1. This revisional application is directed against the order committing the petitioners Badri Prasad Missir and Lakshmi Narayan Dey to sessions in respect of the offence under Section 7(2) proviso of the Essential Supplies Act 1946 and against the order of the Sessions Judge directing that the trial of the case be held with the aid of assessors. The prosecution case briefly is that on 4-10-51 the petitioners were taking 1511/2 mds. of rice by a lorry bearing No. C.H. 1746 when the Police Patrol Party at Adisaptagram, P.S. Magra, in the district of Hooghly stopped the lorry and found that it contained rice and (hey arrested the petitioners who were found in the lorry. They were charged under Section 7(2) of the Essential Supplies Act for possessing rice much in excess of the maximum, quantity which could be lawfully possessed by any person. The punishment prescribed for the offence by the section as amended is imprisonment which may extend to 7 years and a fine not less than 20 times the value of the foodgrain found in the possession of the accused. The committing Magistrate found that the facts outlined above were sufficiently proved by evidence and he committed the two petitioners to sessions. The sessions trial was taken up by B.P. Bakshi, the Assistant Sessions Judge, to whom the case was transferred by the Sessions Judge. Before him the petitioners filed a petition to the effect that the case should be tried with Jury and not by the aid of assessors. The Assistant Sessions Judge rejected the petition on the ground that under the existing law the case was triable with the aid of assessors and not by Jury. Thereupon a petition under Section 526, Cr. P.C. was moved and the case was stayed and this Court was moved in revisional application.

2. As regards the first point that the commitment of the petitioners to the Court of Sessions under Section 7(2) proviso of the Essential Supplies Act 1946 was illegal, it is not seriously pressed by Mr. Mukherjee appearing on behalf of the petitioners. In view of the fact that the maximum punishment prescribed for the offence is 7 years, the case is triable by the Court of Sessions by Schedule 2, Cr. P.C. It is provided therein that if any offence under any law other than the Indian Penal Code is punishable with death or transportation or imprisonment of 7 years or upwards, the case is triable only by the Court of Sessions. This case was therefore rightly committed to the Court of Sessions.

3. As regards the second point, viz., that the Sessions Judge's order that the case he tried with the aid of assessors is illegal, Mr. Mukherjee appearing on behalf of the petitioners does not press that point also seriously. Section 268, Cr. P.C. provides that all trials before a Court of Sessions shall be either by jury, or with the aid of assessors. Section 269, Sub-section 1 provides that the State Government may by order in te official Gazette, direct that the trial of all offences, or of any particular class of offences, before any Court of Sessions, shall be by jury in any District. The necessary implication is that only the classes of offences so notified by the State Government as triable by jury shall be tried by jury and that all other offences shall betried with the aid of assessors. This is the accepted law and it is admitted that there is no notification that the trial of offences under the Essential Supplies Act should be by jury. It is clear therefore that the learned Sessions Judge was quite right in directing that the case be tried with the aid of assessors.

4. Mr. Mukherjee however has raised a point of constitutional law and has urged it strenuously, namely, that all accused committed to the Court of Sessions may demand equal treatment and that it amounts to discrimination if some accused committed to Sessions are tried by jury and other accused also committed to sessions are tried with the aid of assessors and there is no fair and reasonable basis for this difference as to the mode of trial of different accused committed to the Court of Sessions; and as the order of the learned Sessions Judge that the trial be held with the aid of assessors amounts to discrimination before the law, the petitioners are entitled to claim that they should be tried by jury.

5. Article 14 of the Constitution is the Article relating to equality before the law and equal protection before the laws. This Article runs as follows :

'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'

It is however well-recognised that there may be differences in the law applicable to different classes. The fundamental right as to theequal protection of the laws and equality before the law only means that there should be equal operation of law in respect of all persons similarly circumstanced. The Legislature may make special laws applicable to particular classes provided there is a reasonablebasis for the classification. The Criminal Procedure Code contains the ordinary law of the land relating to criminal trials. As I have stated before, in respect of trials before the Court of Sessions, trial with the aid of. assessors is the common rule. It is only when the State Government issues notification in respect of the trial of all offences in any district or of any particular class of offences in any district being triable by jury, that such offences become triable by jury and they are taken out of the common rule that all cases before the Sessions Court shall be tried with the aid of assessors. The Government has been given no power to provide that in individual cases the trial shall be by jury. The Government has to provide by notification that the trial of all offences or of particular classes of offences in any district shall be by jury. Therefore as regards the accused concerned in any particular class of offences, there is no discrimination; according as the class of offences is or is not included in the Government notification relating to trial by jury, such accused will be tried by jury or with the aid of assessors. It is therefore difficult to, accept the argument advanced by Mr. Mukherjee that the trial of some persons committed to the Court of Sessions by jury and of other persons committed to the Court of Sessions with the aid of assessors constitutes a breach of Article 14 relating to the equal protection of the laws within the territory of India. The accused concerned in any particular class of offences like offences under theEssential Supplies Act constitutes a special class. It cannot be said that there is no reasonable basis for these classifications. Accordingly, it must be held that there is no breach of the fundamental right of the petitioners guaranteed by Article 14 of the Constitution.

The Court cannot compel the Government to issue a notification providing that offences under the Essential Supplies Act shall be tried by jury. If the power given by Section 269(1) to the State Government were an arbitrary power, it would rather follow that the State Government could not issue a notification providing that any particular class of offences 'in any district should be tried by jury. Therefore the common rule of trial before the Sessions Court would be applicable and all cases would have to be tried with the aid of assessors. But we must hold that the power given to the State Government by Section 269(1) is not an arbitrary power and that exercise of that power by the State Government does not constitute a breach of the fundamental right ,as to equal protection of the laws guaranteed by Article 14 of the Constitution.

6. Mr. Mukherjee has referred to certain rulings in this connection. In the case of --'Anwar Ali Sarkar v. State of West Bengal', : AIR1952Cal150 (A) a Full Bench of this Court was concerned with the question whether the West Bengal Special Courts Act (1950) violated the fundamental right as to the equal protection of the laws guaranteed by Article 14 of the Constitution. The majority of the Full Bench held that Sub-section 1 of Section 5 of the West Bengal Special Courts Act (1950) offended against Article 14 of the Constitution as so far as it empowered, the State Government to direct any case to be tried by a Special Court and the power given in the section and the notification made under the powers so given were ultra vires Article 14 of the Constitution and therefore the Special Court had no jurisdiction to try persons in pursuance of the powers under the notification and to convict and sentence them. It was however held that the Act so far as it authorised its application to offences or classes of offences or classes of cases was not obnoxious to Article 14 of the Constitution.

7. This Full Bench decision really goes against the contention of Mr. Mukherjee because in Section 269(1), Cr. P.C., we are not concerned with particular cases but with all offences or any particular class of offences within a district. By the criterion adopted, by the Full Bench of this Court in -- 'Anwar Ali v. State of West Bengal', (A), Section 269(1), Cr. P.C. does not offend against Article 14 of the Constitution. Mr. Mukherjee has however urged that the Supreme Court in dealing with the case in appeal went further than the Calcutta High Court and held that unless the basis of classification was laid down in the Act itself the Ant must be held to contravene Article 14 of the Constitution. In the Supreme Court decision -- 'The State of West Bengal v. Anwar Ali Sarkar', : 1952CriLJ510 (B)' the Hon'ble Judges of the Supreme Court gaye separate judgments and it cannot be said that they came to a unanimous or even majority conclusion that the basis of classification of offences should be laid down in the Act itself. The effect of the different judgments given by the Hon'ble Judges of the Supreme Court in that cases is summarised by Mukherjea J., inanother Supreme Court case, viz., -- 'Kathi Railing Rawat v. State of Saurashtra', : 1952CriLJ805 (C). The following extract from the judgment delivered by B.K. Mukherjea J. will clarify the points stated above.

'In the Calcutta cases referred to above, the notification under Section 5(1) of the West Bengal Act directed certain individual cases in which specified persons were involved to be tried by the Special Court and it was held by the High Court of Calcutta that Section 5(1), West Bengal Special Courts Act to the extent that it empowers the State Government to direct any case to be tried by Special Courts was void as offending against the provision of the equal protection clause in Article 14 of the Constitution and this view was affirmed in appeal by a majority of this Court. With regard to the remaining part of Section 5(1), which authorises the State Government to direct, offences, class of offences ... or class of cases for trial by Special Courts the majority of the Judges of the Calcutta High Court were of opinion that it was not obnoxious to Article 14 of the Constitution. In the present case, the notification, that was issued by the Saurashtra State Governmenton 9/11-2-1951, did not relate to individual ases. The notification constituted in the first place a Special Court in the areas specified in the schedule. It appointed in the next place a Judge to preside over the Special Court and finally gave a list of offences with reference to appropriate sections in the Indian Penal Code which were to be tried by the Special Judge. If the view taken by the Chief Justice of the Calcutta High Court end the majority of his colleagues is right, such notification and that part of Section 11 of the Ordinance, under which it was issued, could not be challenged as being in conflict with Article 14 of the Constitution. This point did come up for consideration before us in the appeals against the Calcutta decision with reference to the corresponding part of Section 5(1), West Bengal Act, but although a majority of this Court concurred in dismissing the appeals, there was no such majority in the pronouncement of any final opinion on this particular point.'

Thus the Supreme Court decision in -- 'The State of West Bengal v. Anwar Ali Sarkar',(B) does not go further than the Full Bench decision of this Court.

8. Mr. Mukherjee on behalf of the petitioners has urged that in 'the Saurashtra case'(C) from which the above extract has been taken their Lordships of the Supreme Court did go a little further and said that a special Act providing a special Tribunal should give some idea of the basis of the classification of the offences which are intended to be tried by the Special Tribunal. It has been urged that as Section 269(1), Cr. P.C. gives ro indication of the basis of classification of the class of offences which may be notified for trial by jury, the provision contravenes the fundamental right guaranteed by Article 14 of the Constitution. We should point out however that the Supreme Court was concerned with Special Acts providing for trial in a Special Court by a special procedure by suspending the operation of the ordinary made of criminal trial provided by the Criminal Procedure Code, and of the ordinary criminal Courts of the land set up under the Criminal Procedure Code. The decision of the Supreme Court relating to the Special Act containing some basis of the classification of the offences which are intended to be tried by the Special Tribunal must be read in that context. Thus, it appears that in -- 'the Saurashtra case', (C) it was contended on behalf of the appellant that Section 11 and the notification issued thereunder were discriminatory in that the offences alleged to have been committed by the appellant within the specified areas were required to be tried by the Special Juags under the special procedure, while any person committing the same offence outside the area would be tried by the ordinary Court under the ordinary procedure. It is clear, therefore, that there was no attempt to challenge the validity of the ordinary procedure for trial of sessions cases by the ordinary Courts set up under the Criminal Procedure Code. All these cases were concerned with Special Act which sought to supersede the ordinary criminal Courts of the land and the ordinary mode of criminal trial provided by the Criminal Procedure Code. This point would be made clearer by reference to certain portions of the judgment of the Supreme Court in -- 'the State of West Bengal v. Anwar Ali Sarkar', (B). At p. 84, there is the following observation by Fazl Ali J. :

'The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the application of the Act.'

At p. 92, there is the following observation by Mukherjea J.:

'As I have said already, in the present case, the discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the Stale Government to select in any way it likes the particular case or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country, is on, the face of it discriminatory.'

9. So, it was only in respect of Special Acts seeking for the purpose of a particular class of cases to supersede the ordinary criminal law of the country as contained in the Criminal Procedure Code and substitute therefor a procedure less advantageous to the accused that the Supreme Court has laid down in 'the Saurashtra case', (C) that the principle of the classification should be deducible from the terms of the Act itself including the preamble. This decision, therefore, does not affect the question of validity of the ordinary criminal law of the land as contained in the Criminal Procedure Code.

10. I need refer to only another case cited by Mr. Mukherjee, namely, -- 'Ram Kissen v. Stale of West Bengal', : AIR1952Cal639 (D). In this case, the Special Bench of this Court was concerned with the validity of S. 12(1) of the West Bengal Black Marketing Act. That provision empowers the Government to transfer any case under the West Bengal Black-Marketing Act to a Special Tribunal. The wording of the relevant portion is as follows :

'The Provincial Government may, from time to time by notification in the Official Gazette allot cases for trial to each Special Tribunal and may also from time to time by like notification transfer any case from one Special Tribunal to another or withdraw anycase from the jurisdiction of a Special Tribunal .........'

Thus the Government could transfer any case they liked under the West Bengal Black Marketing Act to a Special Tribunal and leave other cases under the West Bengal Black Marketing Act to be dealt with by the ordinary Courts. Their Lordships, therefore, held that the discriminatory power of withdrawal and transfer given to the Government, involved discrimination violating the provision of Article 14 of the Constitution. This was also a case like Section 5(1) of the West Bengal Special Courts Act (1950), and the State Government in its discretion might withdraw individual cases from the ordinary Courts governed by the ordinary procedure and send it to a Special Tribunal or Special Court governed by special procedure. As I have already pointed out, that decision in such a case docs not really support the contention of Mr. Mukherjee, because Section 269(1), Cr. P.C. does not empower the State Government to deal with individual cases but compels the State Government to deal with all offences or particular classes of offences within a district all at once.

We are, therefore, unable to accept the contention of Mr. Mukherjee that there is any contravention of the fundamental right of the equal protection of the laws guaranteed by Article 14 of the Constitution, in the state of the existing law under the Criminal Procedure Code, which enables the accused concerned in particular class of cases to be tried by jury and the accused concerned in other class of cases to be tried with the aid of assessors.

11. Accordingly, this Rule stands discharged.

J.P. Miiter, J.

12. I agree.


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