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TMI Blog1952 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the impugned Ordinance, under which the Court was constituted, was discriminatory and void. The Objection was overruled by the Special Judge as well as by the High Court of Saurashtra on appeal and the appellant now seeks a decision of this Court on the point. The impugned Ordinance purports to amend the Saurashtra State Public Safety Measures Ordinance (No. IX of 1948) which had been passed "to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra", by the insertion of sections 7 to 18 which deal with the establishment of Special Courts of criminal jurisdiction in certain areas to try certain classes of offences in accordance with a simplified and shortened procedure. Section 9 empowers the State by notification to constitute Special Courts for such 'areas as may be specified in the notification and section 10 provides for appointment of Special Judges to preside over such courts. Section 11 enacts that the Special Judge shall try "such offences or classes of offences or such cases or classes of cases as the Government may, by general or special order in writing; direct", ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and otherwise dealt with according to the provisions hereinafter contained", and that delegation of such power to the executive Government was beyond the competence of a legislature and was, therefore, void. On the first point, many of the considerations which weighed with me in upholding the constitutionality of section 5 (1) of the West Bengal Special Courts Act, which is in identical terms with section 11 of the impugned Act, apply a fortiori to the present case. The West Bengal case ([1952] S.C.R.284.) arose out of a reference by the State Government of certain individual cases to the Special Court for trial and 1 there expressed the view that it was wrong to think that classification was something that must somehow be discoverable in every piece of legislation or it would not be legislation. That way of regarding classification, I pointed out, tended only to obscure the real nature of the problems for which we have to find solution. In the present case, however, the State Government referred not certain individual cases but offences of certain kinds committed in certain areas and so the objection as to discriminatory treatment is more easily answered on the line of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards different groups of persons in order to give effect to its policies. The power of the State to regulate criminal trials by constituting different courts with different procedures according to the needs of different parts of its territory is an essential part of its police power-(cf. Missouri v. Lewis)( 101 U.S.22). Though the differing procedures might involve disparity in the treatment of the persons tried under them, such disparity is not by itself sufficient, in my opinion, to outweigh the presumption and establish discrimination unless the degree of disparity goes beyond what the reason for its existence demands as, for instance, when it amounts to a denial of a fair and impartial trial. It is, therefore, not correct to say that article 14 provides no further constitutional protection to personal liberty than what is afforded by article 21. Notwithstanding that its wide general language is greatly qualified in its practical application by a due recognition of the State's necessarily wide powers of legislative classification, article 14 remains an important bulwark against discriminatory procedural laws. In the present case, the affidavit filed on behalf of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Penal Code and sentenced to death and to seven years' rigorous imprisonment. The appellant was tried by a Special Court constituted under the Saurashtra State Public Safety Measures(Third Amendment) Ordinance, 1949 (Ordinance No. LXVI of 1949), which was issued by the Rajpramukh of Saurashtra on the 2nd November, 1949, and his conviction and sentence were upheld on appeal by the State High Court. He has preferred an appeal to this Court against the decision of the High Court. The principal question which arises in this appeal is whether the Ordinance to which reference has been made is void under article 13(1) of the Constitution on the ground that it violates the provisions of article 14. It appears that on the 5th April, 1948, the Rajpramukh of Saurashtra State promulgated an Ordinance called the Criminal Procedure Code, 1898 (Adaptation) Ordinance, 1948 (Ordinance No. XII of 1948), by which "the Criminal Procedure Code of the Dominion of India as in force in that Dominion on the 1st day of April, 1948" was made applicable to the State of Saurashtra with certain modifications. In the same month, another Ordinance called the Saurashtra State Public Safety Measures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance of the evidence of. each witness is ordinarily to be recorded; (4) The period of limitation for appeal to the High Court is curtailed; and (5) No court has jurisdiction to transfer any case from any Special Judge, or to make an order under section 491 of the Criminal Procedure Code. It appears that pursuant to the provisions contained in sections 9, 10 and 11 of the Ordinance, the State Government issued a Notification No. H/35-5-C, dated the 9/11th February, 1951, directing the constitution of a Special Court for certain areas mentioned in a schedule attached to the Notification and empowering such court to try the following offences, namely, offences under sections 183, 189, 190, 212, 216, 224, 302, 304, 307, 323-335, 341-344, 379-382, 384-389 and 392-402 of the Indian Penal Code, 1860, as adapted and applied to the State of Saurashtra, and most of t, be offences under the. Ordinance of 1948. In the course of the hearing, an affidavit was filed by the Assistant Secretary in the Home Department of the Saurashtra Government, stating that since the integration of different States in Kathiawar in the beginning of 1948 there had been a series of crimes against public peace an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same as those governing another set of persons or objects, so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances. The main objection to the West Bengal Act was that it permitted discrimination "without reason" or without any rational basis. Having laid down a procedure which was materially different from and less advantageous to the accused than the ordinary procedure, that Act gave uncontrolled and unguided authority to the State Government to put that procedure into operation in the trial of any case or class of cases or any offence or class of offences. There was no principle to be found in that Act to control the application of the discriminatory provisions or to correlate those provisions to some tangible and rational objective, in such a way as to enable anyone reading the Act to say :--If that is the objective, the provisions as to special treatment of the offences seem to be quite suitable and there can be no objection to dealing with a particular type of offences on a special footing. The mere mention of speedier trial as the object of the Act did not cure the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sarily be confined to only disturbed areas or those areas where adoption of public safety measures is necessary. That this is how the Ordinance was intended to be understood and was in fact understood, is confirmed by the Notification issued on the 9/11th February by the State Government in pursuance of the Ordinance. That Notification sets out 49 offences under the Indian Penal Code as adapted and applied to the State and certain other offences punishable under the Ordinance, and one can see at once that all these offences directly affect the maintenance of public order and peace and tranquillity. The Notification also specifies certain areas in the State over which only the special court is to exercise jurisdiction. There can be no dispute that if the State Legislature finds that lawlessness and crime are rampant and there is a direct threat to peace and tranquillity in certain areas within the State, it is competent to deal with offences which affect the maintenance of public order and preservation of peace and tranquillity in those areas as a class by themselves and to provide that such offences shall be tried as expeditiously as possible in accordance with a special procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order in writing, direct." The question whether section 5(1) of the Bengal Act (X of 1950) was hit by article 14 of the Constitution was answered in the affirmative by this court in The State of West Bengal v. Anwar Ali Sarkar etc.( [1952] S.C.R. 284.) In that case I was of the opinion that even if the statute on the face of it was not discriminatory, it was so in its effect and operation inasmuch as it vested in the executive government unregulated official discretion and therefore had to be adjudged unconstitutional. Section 11 of the Ordinance, like section 5(1) of the West Bengal Act, suggests no reasonable basis or classification either in respect of offences or in respect of cases. It has laid down no measure for the grouping either of persons or of cases or of offences by which measure these groups could be distinguished from those outside the purview of the special Act. The State Government can choose a case of a person similarly situate and hand it over to the special tribunal and leave the case of another person in the same circumstances to be tried by the procedure laid down in the Criminal Procedure Code. It can direct that the offence of simple hurt be tried by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of any offence to the special judge for trial by the procedure prescribed in the Ordinance. MUKHERJEA J.--The appellant before us was tried,along with two other persons, by the Special Judge, Court of Criminal Jurisdiction, Saurashtra State, on charges of murder, attempted murder and robbery under sections 302, 307 and 392 of the Indian Penal Code read with section 34. By his judgment dated 20th December, 1950, the Special Judge convicted the appellant on all the three charges and sentenced him to death under section 302 and to seven years' rigorous imprisonment both under sections 307 and 392 of the Indian Penal Code. The conviction and sentences were upheld by the High Court of Saurashtra on appeal. The appellant has now come to this court on the strength of a certificate granted by the High Court under articles 132(1) and 134(1)(c) of the Constitution. The appeal has not been heard on its merits as yet. It was set down for hearing on certain preliminary points of law raised by the learned counsel for the appellant attacking the legality of the entire trial on the ground that section 11 of the Saurashtra Public Safety Measures Ordinance No. XLVI of 1949 passed by the Rajpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts 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, classes of offences...or classes 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 Government on 9/11th February, 1951, did not relate to individual cases. 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 of 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 and 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 challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th of November, 1949, the present ordinance was passed by way of amendment of the Public Safety Measures Ordinance and inter alia it made provisions for the establishment of special courts. Section 9 of this Ordinance empowers the State Government to constitute special courts of criminal.jurisdiction for such areas as may be specified in the notification. Section 10 relates to appointment.of Special Judges who are to preside over such courts and section 11 lays down that the Special Judge shall try "such offences or classes of offences......... or classes of cases as the Government of United State of Saurashtra may, by general or special order in writing, direct." The procedure to be followed by the Special Judges is set out in sections 12 to 18 of the Ordinance. In substance the Special Court is given the status of a sessions court, although committal proceeding is eliminated and so also is trial by jury or with the aid of assessors. The Special Judge has only to make a memorandum of the evidence and he can refuse to summon any witness if he is satisfied after examination of the accused that the evidence of such witness would not be material. Section 16 (1) curtails the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives of the legislation, that necessity of judicial interference arises. Section 11 of the Saurashtra Ordinance so far as it is material for our present purpose lays down that a Special Court shall try such offences or classes of offences...or classes of cases as the State Government may....direct". This part of the section undoubtedly contemplates a classification to be made of offences and cases but no classification appears on the terms of the statute itself which merely gives an authority to the State Government to determine what classes of cases or offences are to be tried by the special tribunal. The question arises at the outset as to whether such statute is not on the face of it discriminatory as it commits to the discretion of an administrative body or officials the duty of making selection or classification for purposes of the legislation; and there is a still further question, namely, by what tests, if any, is the propriety of the administrative action to be adjudged and what would be the remedy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainment of specific ends by the use of specific remedies." In my opinion, if the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. After all "the law does all that is needed when it does all that it can, indicates a policy.... and seeks to bring within the lines all similarly situated so far as its means allow(Vide Buck v. Belt, 274 U.S. 200, 208.)''. In such eases, the power given to the executive body would import a duty on it to classify the subjectmatter of legislation in accordance with the objective indicated in the statute. The discretion that is conferred on official agencies in such circumstances is not an unguided discretion; it has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tested. If the administrative body proceeds to classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urashtra Ordinance is worded in exactly the same manner as section 5(1) of the West Bengal Special Courts Act; and that part of it, with which we are here concerned, authorises the State Government to direct any classes of offences or cases to be tried by the special tribunal. The State Government, therefore, has got to make a classification of cases or offences before it issues its directions to the Special Court. The question is, on what basis is the classification to be made ? If it depends entirely upon the pleasure of the State Government to make any classification it likes, without any guiding principle at all. it cannot certainly be a proper classification, Which requires that a reasonable relation must exist between the classification and the objective that the legislation has in view. On the other hand, if the legislature indicates a definite objective and the discretion has been vested in the State Government as a means of achieving that object, the law itself, as I have said above, cannot be held to be discriminatory, though the action of the State Government may be condemned if it offends against the equal protection clause, by making an arbitrary selection. Now, the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closes a definite legislative policy which has been sought to be effectuated by the different provisions contained in the enactment. If Special Courts were considered necessary to cope with an abnormal situation. it cannot be said that the vesting of authority in the State Government to select offences for trial by such courts is in any way unreasonable. In the light of the principles stated already, I am unable to hold that section 11 of the Ordinance in so far as it authorises the State Government to direct classes of offences or cases to be tried by the Special Court offends against the provision of the equal protection clause in our Constitution. If the notification that has been issued by the State Government proceeds on any arbitrary or unreasonable basis, obviously that could be challenged as unconstitutional. It is necessary, therefore, to examine the terms of the notification and the list of offences it has prescribed. The notification, as said above, constitutes a Special Court for the areas mentioned in the Schedule and appoints Mr. P.P. Anand as a Special Judge to preside over the Special Court. The offences triable by the Special Court are then set out with reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing sale of property offered for sale by authority of public servant. Section 186 on the other hand does not relate to the taking of property at all, but is concerned with obstructing a public servant in the discharge of his public duties. Then again I am not sure that it was incumbent upon the State Government to include section 308, Indian Penal Code, in the list simply because they included section 307. It is true that culpable homicide as well as attempt to murder are specified in the list; but an attempt to commit culpable homicide is certainly a less heinous offence and the State Government might think it proper, having regard to all the facts known to them, that an offence of attempt to commit culpable homicide does not require a special treatment. Be that as it may, I do not think that a meticulous examination of the various offences specified in the list with regard to their nature and punishment is necessary for purposes of this case. The appellant before us was accused of murder punishable under section 302 of the Indian Penal Code. There is no other offence, I believe, described in the Indian Penal Code, which can be placed on an identical footing as murder. Even culpa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, is that both the preliminary points must be disallowed and the appeal should be heard on its merits. DAS J. --The appellant before us was tried by a Special Court constituted under the Saurashtra Public Safety Measures (Third Amendment) Ordinance No. LXVI of 1949 for offences alleged to have been committed by him under sections 302, 307 and 392 of the Indian Penal Code. On December 20, 1950, he was found guilty of the offences charged against him and was convicted and sentenced to death under section 302, (1) 72 I.A. 57. (2) 3 App. Cas. 889. Indian Penal Code, and to seven years rigorous imprisonment under each of the charges under sections 307 and 392, Indian Penal Code, the sentences of imprisonment running concurrentlyHe appealed to the High Court of Saurashtra but the High Court, by its judgment pronounced on February 28, 1951, rejected his appeal and confirmed his conviction and the sentences passed by the Special Court. By its order made on March 21, 1951, however, the High Court granted him a certificate for appeal to this Court both under article 132 and article 134 (1) (c) of the Constitution. This appeal has accordingly been filed in this Court. A preliminary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s so as to expedite the disposal of cases in which offences of certain specified kinds had been committed. The Rajpramukh of Saurashtra accordingly, on November 2, 1949, promulgated Ordinance No. LXVI of 1949 called "The Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949", whereby it amended the Saurashtra State Public Safety Measures Ordinance (No. IX of 1948). By section 4 of the Ordinance No. LXVI of 1949 several sections were added to Ordinance No. IX of 1948. Three of the sections thus added, which are material for our present purposes, were sections 9, 10 and 11 which run as follows :-- "9. Special Courts.--The Government of the United State of the Saurashtra may by notification in the Official Gazette constitute Special Courts of Criminal Jurisdiction for such area as may be specified in the notification. 10. Special Judges.--The Government of the United State of Saurashtra may appoint a Special Judge to preside over a Special Court constituted under section 9 for any area any person who has been a Sessions Judge for a period of not less than 2 years under the Code of Criminal Procedure, 1898, as applied to the United State of Saurasht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1950). The preamble to that Act recited that it was "expedient to provide for the speedier trial of certain offences". Sections 3, 4 and 5 (1) of the West Bengal Special Courts Act, 1950, reproduced substantially, if not verbatim, the provisions of sections 9, 10 and 11 of the Saurashtra Ordinance of 1948 as subsequently amended. The notification issued by the State of West Bengal under that Act was, however, different from the notification issued by the State of Saurashtra in that the West Bengal notification directed certain specific "cases" to be tried by the Special Court constituted under the West Bengal Special Courts Act. That notification had obviously been issued under that part of section 5 (1) of the West Bengal Special Courts Act which authorised the State Government to direct particular "cases" to be tried by the Special Court. A majority of this court held that at any rate section 5 (1) of the West Bengal Special Courts Act in so far as it authorised the State to direct "cases" to be tried by the Special Court and the notification issued thereunder offended against the provisions of article 14 of the Constitution and as such we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of offences or cases Prima facie those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences", "classes of offences" or "classes of cases." The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offence. In short, the classification implied in this part of the subsection has no reference to, and is not directed towards, the singling out of any particular person as an object of hostile State action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purposes of the particular legislation as recited in its preamble. An argument was raised, as in the West Bengal ease, that even this part of the section gave an uncontrolled and unguided power of classification which might well be exercised by the State Government capriciously or "with an evil eye and an unequal hand" so as to deliberately bring about invidious discrimination betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification so as to distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to the State with power to classify them into a separate group and deal with them promptly ? I have no doubt to' my mind that the surrounding circumstances and the special features mentioned in the affidavit referred to above furnish a very cogent and reasonable basis of classification, for they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstanceS. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the maintenance of public order, the preservation of public safety, the peace and tranquillity of the State. Such a classification will not be repugnant to the equal protection clause of our Constitution, for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a Special. Court for trial under the special procedure. Persons thus sent up for trial by a Special Court cording to the special procedure cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect offences or classes of offences or classes of cases to be tried by the Special Court does not offend against the equal protection clause of our Constitution and the notification which has been issued under that part of the section cannot be held to be invalid or ultra vires. On the question of delegation of legislative power the matter appears to be concluded by the decision of the Privy Council in Benoarilal's case(L.R. 72 I.A. 57.) and the section may well be regarded as an instance of conditional legislation. Further, I would be prepared to say, for reasons stated in my judgment in the President's Reference(Cases Nos. 297 & 298 of 1951. Since) that there has been no illegal delegation of legislative power. For reasons stated above, I agree that the preliminary point should be rejected and the appeal should be heard on its merits. CHANDRASEKHARA AIYAR J.--Mr. Sen tried his best to distinguish this case from our decision on the West Bengal Special Courts Act, 1950, The State of West Bengal v. Anwari Ali Sarkar and Gajan Mali (Cases Nos. 297 & 298 of 1951.). But in my view he has not succeeded in his attempt. Sections 9 and 11 of the Ordinance in question do not lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either in the impugned Ordinance or notification. This is certainly not a legal requirement; but a wise prudence suggests the need for such incorporation, as otherwise the ascertainment of the reasons for the classification from extraneous sources may involve the consideration of what may be regarded as after-thoughts by way of explanation or justification. In my. view, the West Bengal Special Courts Act decision governs this case also, and section 11 is bad. It is unnecessary to deal with the other point raised by the learned counsel for the appellants as regards the delegation of legislative powers involved in the pro tanto repeal of some of the provisions of the Criminal Procedure Code, viz., sections 5 and 28 and the Schedule, especially as it seems concluded against him by the decision in King Emperor v. Benoari Lal Sarma and Others((1945) 72 I.A. 57.). The convictions of the appellant and the sentences imposed on him are set aside, and there will be a retrial under the ordinary procedure. Boss J.--I agree with my brothers Mahajan and Chandrasekhara Aiyar that the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, offends article 14. As I explained in my j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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