1943 (4) TMI 13 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of Special Magistrates under the Ordinance.
2. Retrospective application of the Ordinance.
3. Validity of the Ordinance under the Defence of India Act.
4. Ultra vires nature of the Ordinance.
5. Power to issue writs of certiorari.
6. Commencement of legal proceedings.

Detailed Analysis:

1. Jurisdiction of Special Magistrates under the Ordinance:
The petitioners were arrested and tried under Rule 56(4) of the Defence of India Rules by Special Magistrates constituted under Ordinance 2 of 1942. The primary contention was whether Special Magistrates had jurisdiction to try offences under the Defence of India Rules, given the Defence of India Act provided for special tribunals with higher qualifications. The court held that the Ordinance, which came into force after the Defence of India Act, did not exclude offences under the Defence of India Rules from being tried by Special Magistrates. The Ordinance was intended to replace ordinary criminal courts with special courts during the emergency, and the Provincial Government had the authority to direct which offences should be tried by these special courts.

2. Retrospective Application of the Ordinance:
The petitioners argued that since the District Magistrate's order under Section 10 of the Ordinance was issued on 4th October 1942, the Ordinance was not in force in Darbhanga before that date. The court clarified that legal proceedings against the petitioners commenced on 5th October 1942, after the proper order under Section 10 was made. Therefore, the Special Magistrate had jurisdiction to try the cases. The court reiterated that the Ordinance was not retrospective and did not apply to cases where proceedings had commenced before its promulgation.

3. Validity of the Ordinance under the Defence of India Act:
The court addressed the argument that the Defence of India Act provided its own machinery for trial and that the Ordinance did not expressly repeal or suspend the Act. The court held that Section 14 of the Defence of India Act merely preserved the jurisdiction of ordinary courts in the absence of special tribunals and did not bar the legislature from setting up other courts. The Ordinance, being a subsequent law, prevailed over any inconsistent provisions of the Defence of India Act.

4. Ultra Vires Nature of the Ordinance:
The argument that the Ordinance was ultra vires under Section 100(3) of the Government of India Act was rejected. The court held that the Governor-General, under Section 102 of the Government of India Act, had the power to make laws for a province during an emergency, which included matters in the Provincial Legislative List. The proclamation of emergency had been duly made and approved by both Houses of Parliament, thereby validating the Ordinance.

5. Power to Issue Writs of Certiorari:
The petitioners argued that the High Court had the power to issue writs of certiorari and that this power was not taken away by Section 26 of the Ordinance. The court, however, held that even if the High Court had such power, Section 26 of the Ordinance, which barred any court from having jurisdiction over proceedings under the Ordinance, effectively took away this power. The court referred to the Privy Council's decision in Annie Besant v. Advocate-General of Madras, which supported the view that general words in a statute could take away the power to issue writs of certiorari.

6. Commencement of Legal Proceedings:
The court clarified that legal proceedings in criminal cases commence when a Magistrate takes cognizance of an offence and issues a process or takes an equivalent step. In the present cases, the legal proceedings against the petitioners commenced on 5th October 1942, when the police report was received, and the Magistrate took cognizance. Thus, the Special Magistrate had jurisdiction to try the cases as the proceedings commenced after the District Magistrate's order under Section 10.

Conclusion:
The court dismissed the applications where the Special Magistrates had jurisdiction and upheld the convictions. However, in cases where the trial commenced before the District Magistrate's order under Section 10, the court held that the Special Magistrates had no jurisdiction and directed the release of the petitioners or their retrial according to law. The court also clarified the scope of its power to issue writs of certiorari and the retrospective application of the Ordinance.