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TMI Blog1952 (5) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Act, directed the Special Judge to try the case of the appellants who were implicated in what was known as the Central Bank Robbery Case. Charges were framed on January 13, 1950, without any preliminary enquiry and committal by a Magistrate which had been dispensed with by the impugned Act, and seventeen witnesses for the prosecution were examined before January 26, 1950, when the Constitution came into force. The proceedings continued, and after the examination of sixty witnesses in all, ended in the conviction of the appellants on March 13, 1950. Separate appeals were preferred by the present appellants to the High Court which, however, confirmed the conviction and sentence in each case. An objection that the trial was illegal as the impugned Act was void under article 13 (1) of the Constitution, read with article 14, was overruled on the ground that those provisions had no retrospective operation and did not affect proceedings already started in the Court of the Special Judge. the learned Judges followed the decision of a Special Bench of their own Court in In re Keshav Madbar Menon(1) which has since been affirmed by this Court in [1951] S.C.R. 228. It is urged on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e executive and the legislature, should apply the same law, substantive and procedural, to all persons alike in the same situation without discrimination. It is said that after the commencement of the Constitution persons who commit the same offences with which the appellants stood charged would, according to Anwar All Sarkar's case ([1952] S.C.R. 284) not be liable to be tried by the Special Judge under the special procedure and, if so, the trial of the appellants, too, could not be continued by the Special Judge under such procedure after 26th January, 1950, because such of the departures from the normal procedure of trial under the Criminal Procedure Code as were applied to the appellants during the rest of their trial, being disadvantageous to them in some respects, involved discrimination against them. It is, therefore, claimed that the continued application of such discriminatory procedure after the Constitution came into force rendered the trial and the resulting conviction illegal. I am unable to agree. In the first place, as already pointed out: equal protection of the laws postulates persons in the same situation and in the same circumstances claiming that the same la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e normal procedure after 26th January, 1950, in which case alone they could say Why not try us under the Code; why discriminate? But, having regard to section 1 (2) of the Code, the normal procedure would become applicable only if the special procedure is excluded as being discriminatory and void. The argument thus proceeds in a circle. Again, it is difficult to see on what principle the jurisdiction of the Special Judge, validly created and exercised over the appellants' case, could cease to continue on and after 26th January, 1950. According to the appellants' contention. the special procedure prescribed by the impugned Act became discriminatory and void after 26th January, 1950, and, therefore, inapplicable to what remained of their trial. But, could this circumstance affect the competence of the Special Judge to try their case of which he had validly taken cognisance ? In Keshoram Poddar v. Nundo Lal Mullick(1) the Judicial Committee of the Privy Council held that the cessation of the jurisdiction of a Rent Control Tribunal after 31st March, 1924, over properties beyond a certain rental value did not affect its power to deal with a case after such cessation if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of substantive rights and liabilities accrued before the date of the Constitution in Keshavan Madhava Menon's case ([1951] S.C.R. 228.), or to go back on that decision and give those provisions of the Constitution retrospective, effect. I am clearly of opinion that the principle of the above-said decision must rule the present case. That principle has been stated thus: Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute-book, for, to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and ,.for enforcing all rights and liabilities accrued before the date of the Constitution , (Italics mine). Indeed, the last few words are apt to cover the present case, though, as a party to that decision, I am sensible that we did not have in mind a case precisely like the one now before us. But, it is well to remember that over-fine distinctions sometimes lead to unsuspected traps. In the foregoing discussion I have assumed that such departures from the normal procedure as were still applicable to what remained of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violative of article 14--the decision of this Court in Kathi Raning Rawat v. The State of Saurashtra ([1952] S C.R. 435) shows that it can be validly instituted in appropriate circumstances--a prohibition of transfer cannot be regarded as falling within the inhibition of article 14. I have emphasised elsewhere, and I do so again, that in applying the dangerously wide and vague language of the equality clause to the concrete facts of life, a doctrinaire approach should be avoided. In all the circumstances of this case, I do not feel impelled to set aside the trial and conviction of the appellants and I accordingly dismiss the appeals. DAs J.--These two appeals are from the judgment of a Division Bench of the Bombay High Court (Dixit and Shah JJ.) dated May 19, 1950, dismissing the appeals preferred by the appellants against the order made by Shri M.S. Patti on March 13, 1950, as the Special Judge appointed under the Bombay Public Security Measures Act, 1947, whereby he convicted and sentenced them to death and to different terms of imprisonment under the different charges. The prosecution case is shortly as follows: On the morning of May 26, 1949, between the hours of 10-30 a. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District and Sessions Judge, Ahmedabad, as a Special Judge to preside over the Special Court. By another Notification made on the same date, the Government of Bombay in exercise of powers conferred by section 12 the Act directed the Special Judge to try two particular cases, namely, the Postal Van dacoity case in which there were 9 accused and the Central Bank robbery with murder case in which the two appellants before us were the accused under the two charge sheets. In view of the above Notification the City Magistrate, Ahmedabad, transferred the two cases against the appellants to the Court of the Special Judge and they came to be numbered as cases Nos. 2 and 3 respectively of 1949. On December 31, 1949, the Government of Bombay directed that the trial of the appellants should be held by the Special Judge in the Ahmedabad Central Prison. There was no order of committal by any Committing Magistrate nor was there any preliminary enquiry by the Special Judge. On January 13, 1950, the Special Judge consolidated the two cases against the appellants with a view to holding a joint trial. On the same day he framed five several charges, namely, four under different sections of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot think fit to permit the appellants to raise a new point at this stage it disallowed that petition. Accordingly these appeals must be limited to attacking the judgment of the High Court on the ground that a substantial question of law as to the interpretation of the Constitution has been wrongly decided. The only substantial question of law as to the interpretation of the Constitution urged before us is that the Bombay Public Safety Measures Act, 1947, or, at any rate, that part of section 12 of that Act which authorises the State government to direct specific cases to be tried by a Special Judge appointed under that Act, offends against the equal protection of law guaranteed by article 14 of the Constitution and is as such void under article 13 on the principle laid down by this Court in the cases of The State of West Bengal v. Anwar Ali Sarkar ([1952] S.C.R. 284) and Kathi Raning Rawat v. The State of Saurashtra ([1952] S..C.R. 435). In order to appreciate the point in issue, it is necessary to consider in some detail the provisions of the impugned Act. The Act came into force on March 23, 1947. It was then instituted as An Act to consolidate and amend the law relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in the notification. Section 11 which corresponds to section 4 of the West Bengal Act and section 10 of the Saurashtra Ordinance empowers the government to appoint as a Special Judge to preside over a Special Court any person possessing the requisite qualifications mentioned therein. Section 12 is expressed in precisely the same terms in which section 5(1)of the West Bengal Act and section 11 of the Saurashtra Ordinance are' expressed, namely: A Special Judge shall try such offences or class of offences or such cases or class of cases as the Provincial Government may, by general or special order in writing direct. It will be noticed that the offences mentioned in the above section are not limited to offences created by this Act only but also cover offences under any other law, e.g, the Indian Penal Code, Section 13 runs thus 13. (1) A Special Judge may take cognizance of offences without the accused being committed to his Court for trial. (2) A Special Judge shall ordinarily record a memorandum only of the substance of the evidence of each witness examined, may refuse to summon any witness if satisfied after examination of the accused that the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sections 10 to 20. Section 20 provides as follows :- Notwithstanding anything contained in the Code, the trial of offences before a Special Judge shall not be by jury or with the aid of assessors. Thus, besides providing for enhanced punishment and whipping the Act eliminates the committal proceedings [section 13 (1)], permits the Special Judge to record only a memorandum of the evidence, confers on him a larger power to refuse to summon a defence witness, than what is conferred on a Court by section 257(1) of the Code of Criminal Procedure and also deprives the accused of his right to apply for a transfer or for revision. That these departures from the ordinary law cause prejudice to persons subjected to the procedure prescribed by the Act cannot for a moment be denied. This Court has, by its decisions in the State of West Bengal v. Artwar Ali Sarkar (supra) and in Kathi Raning Rawat v The State of Saurashtra (supra). recognised that article 14 condemns discrimination not only by a substantive law but also by a law of procedure and that the procedure prescribed by the corresponding provisions in the West Bengal Special Courts Act and the Saurashtra Ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have published a pamphlet which, according to the Bombay Government authorities was a news sheet within the meaning of section 2 (6) of the Indian Press (Emergency Powers) Act, 1931. On December 9, 1949, he was arrested and a prosecution was started against him in the Court of the Chief Presidency Magistrate at Bombay for having published the pamphlet without the authority required by section 15(1) of the Act and for having thereby committed an offence punishable under section 18 of that Act. During the pendency of the proceedings the Constitution of India came into force on January 26, 1950. On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of news sheet as given in section 2(6) of that Act, and sections 15 and 18 thereof were inconsistent with article 19(1)(a) and, as such, void under article 13 of the Constitution. This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution. The Bombay High Court considered it unnecessary to deal with the question whether sections 15 and 18 were inconsistent with article 19(1)(a) but held that, Assuming that they were inconsistent, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e committed. It will be noticed that in that case the prosecution was started according to the ordinary law of procedure. The only question there was whether a criminal proceeding instituted for a contravention of the provisions of the Indian Press (Emergency Powers) Act which amounted to a completed offence before the date of the Constitution could be continued after the Constitution came into force where no change in procedure was involved. The result of that decision iS that although the acts which before the Constitution constituted an offence under that Act would not, if done after the date of the Constitution, amount to an offence, nevertheless as the Constitution had no retrospective operation it did not obliterate the offence completed before the date of the Constitution and the offender could, therefore, be proceeded against after the Constitution came into force. It was in this sense that it was stated in Keshavan Madhava Menon's case that the law existed for the past transactions and for enforcing all rights acquired or liabilities incurred before the date of the Constitution. If the law did not exist, the offence created by it would ipso facto disappear and no quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have been, but if the discriminatory procedure is continued after the date of the Constitution, surely the accused person may legitimately ask: Why am I to-day being treated differently from other persons accused of 'similar offences in respect of procedure? It is stated in Maxwell's Interpretation of Statutes, 9th Edn., p. 232 No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. If in the absence of any special provision to the contrary, no person has a vested right in procedure it must follow as a corollary that nobody has a vested liability in matters of procedure in the absence of any special provision to the contrary. If this is the position when the law of procedure is altered by statute, why should the position be different when the Act prescribing the discriminatory procedure becomes void by reason of its repugnancy to the equal protection clause of the Constitution? Although the substantive rights a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. To take an example: Under section 11 of the Contract Act persons who have not attained majority cannot enter into a contract. The two categories are adults and minors. The basis of classification is the age. That basis obviously has a relation to the capacity to enter into a contract. Therefore, the section satisfies both the requirements of a permissible classification. In the present case, although the first part of section 12of the Bombay, Act, like section 5 (1)of the West Bengal Actor section 11 of the Saurashtra Ordinance, may indicate and imply a process of classification, the section, in so far as it authorises the government to direct particular cases to be tried by the Special Court, does not purport to proceed upon the basis of any classification at all. Further, the supposed basis of the alleged classification, namely the fact of reference to the Special Court before the Constitution came into effect, has no reasonable relation to the objects sought to be achieved by the Act. The avowed objects of the Act recited in the preamble are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Constitution. Their complaint is not for something that had happened before 26th January, 1950, but is for unconstitutional discrimination shown against them since that date. Their grievance, their cause of action as it were, is post-constitution and, therefore, must be scrutinised and examined in the light of their constitutional rights. So viewed, there can be no doubt or question that they have been discriminated against after the date of the Constitution in the matter of procedure. It has already been held in the West Bengal and the Saurashtra cases that discrimination can lie in procedure just as much as in a substantive law. Therefore, the continuation of the trial after that date according to the discriminatory procedure resulting in their conviction and sentence cannot be supported. Indeed in a sense the Special Judge's jurisdiction came to an end, for he was enjoined to proceed only according to the special procedure and that procedure having become void as stated above, he could not proceed at all as a Judge of a Special Court constituted under the impugned Act. The learned Attorney-General relied on the decision of the Privy Council in Keshoram Poddar v. Nun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no retrospective operation to invalidate that part of the proceedings that has already been gone through but the Constitution does not permit the special procedure to stand in the way of the exercise or enjoyment of post-constitutional rights and must, therefore, strike down the discriminatory procedure if it is sought to be adopted after the Constitution came into operation. To that situation, the decision of the Privy Council referred to above can have no application. For reasons Stated above, the conviction of the appellants on trial held by the Special Judge after the date of the Constitution according to the special procedure prescribed by the impugned Act and the sentences passed on them cannot be supported and these appeals must, therefore, be allowed and the convictions and sentences must be set aside. The appellants are entitled, after the Constitution, not to be discriminated against in matters of procedure and are entitled to be tried according to law. We, therefore, direct that they be tried for the offences alleged to have been committed by them according to law and in the meantime they be retained in custody as undertrial prisoners. Appeals allowed. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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