TMI Blog1954 (12) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... h raises a substantial question of law as to the interpretation of the Constitution of India. The appeal arises out of a criminal trial held in the district of Hazaribagh in the State of Bihar. The case against the appellants was investigated by the local police and on the 4th June, 1951 a challan was submitted before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate passed the following order in the order-sbeet:- "Let the record be sent to the Dy. Commr., Hazaribagh for. transferring it to the file of the Spl. Magistrate for trial". On the record being placed before the Deputy Commissioner, the latter passed following order:- "Perused S.D.0's order-sheet. Withdrawn and transferred to the file of Mr. S. F. Azam, Magte. with powers u/s 30, Cr. P. C. for favour of disposal". The appellants were then tried by Mr. S. F. Azam, Magistrate of the first class exercising powers under section 30 of the Code of Criminal Procedure on charges under sections 366 and 143 of the Indian Penal Code and each of them was convicted under both the sections and sentenced to rigorous imprison- ment for five years under section 366, Indian Penal Code, no separate sentence having been pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore this Court in a number of cases., namely, Chiranjit Lal Chowdhuri v. The Union of India([1950] S.C.R. 869), The State of Bombay v. F. N. Balsara([1951] S.C.R. 682), The State of West Bengal v. Anwar Ali Sarkar([1952] S.c. R. 284.), Kathi Raning Rawat v. The State of Saurashtra([1952] S.C.R. 435), Lachmandas Kewalram Ahuja v. The State of Bombay ([1952] S-C R. 710.) and Qasim Razvi v. The State of Hyderabad([1953] S.C.R. 581. ) and Habeeb Mohamad v. The State of Hyderabad([1953] S.C.R. 661.). It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped togetber from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r provisions of the Code including the provisions of section 30. Further, the text of section 30 itself quite clearly says that its provisions will operate "notwithstanding anything contained in section 28 or section 29". Therefore, the provisions of section 28 and the second schedule must give way to the provisions of section 30. It is not, however, claimed by the learned Attorney-General that section 30 abrogates or overrides altogether the provisions of section 28 and the second schedule in the sense that in the specified territories Magistrates empowered -under section 30 become the only tribunal competent to try all offences not punishable with death to the exclusion of all other Courts mentioned in the 8th column of the second schedule. If that had been the position, then there could be no question of discrimination, for, in that situation, section 30 Magistrate's Court would be the only Court in which all offences not punishable with death would become triable. As already stated, this extreme claim is not made by the learned Attorney-General. The effect of the State Government investing the District Magistrate or any Magistrate of the first class with power under section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Session under section 28 read with the second schedule is also liable to be tried by the section 30 Magistrate. The risk of such liability falls alike upon all persons committing such an offence. Therefore, there is no discrimination in the section itself. The learned counsel for the appellants, however, contends, on the strength of the decision of the Supreme Court of America in Yick, Wo v. Peter Hopkins ([1886] 118 u.s. L.Ed. 220.) that "though a law be fair on its face and impartial in operation, yet, if it is administered by public authority with an evil eye and an unequal hand so as practically to make illegal discrimination between persons in similar circumstances materially to their rights, the denial of equal justice is still within the prohibition of the Constitution". The contention is that although the section itself may not be discriminatory, it may lend itself to abuse bringing about a discrimination between persons accused of offences of the same kind, for the police may send up a person accused of an offence under section 366 to a section 30 Magistrate and the police may send another person accused of an offence under the same section to a Magistrate who can c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to himself and may enquire into or try such case himself or refer it for enquiry or trial to any other Magistrate competent to try the same. In such a case there is exercise of judicial discretion at two stages, namely, under section 209 by the Magistrate before whom the accused was sent up for enquiry and also by the District Magistrate acting under section 528 of the Code of Criminal Procedure. It is thus clear that the ultimate decision as to whether a person charged under section 366 should be tried by the Court of Session or by a section 30 Magistrate does not depend merely on the whim or idiosyncrasies of the police or the executive Government but depends ultimately on the -proper exercise of judicial discretion by the Magistrate concerned. It is suggested that discrimination may be brought about either by the Legislature or the Executive or even the Judiciary and the inhibition of article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of anyone of the three limbs of the State. It has, however, to be remembered that, in the language of Frankfurter, J., in Snowden v. Hughes(1), "the Constitution does not assure uniformity o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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