TMI Blog1953 (1) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... er any proper police investigation nor any serious attempt to arrest the culprits or bring them to trial. It was on the 28th of August, 1949, that is to say, after a lapse of 19 months after the occurrence, that a charge-sheet was presented before the Special Tribunal No. 4 at Trimulgherry, Secunderabad, against the appellant and six other persons. The Tribunal was constituted in accordance with the pro-visions of the Special Tribunal Regulation (Regulation V of 1358F) and as provided for in section 2 of the Regulation, it consisted of three members appointed by the Military Governor. Under section 3 of the Regulation, it was competent to the Military Governor by general or special order to direct that any offence or class of offences should be tried by such tribunal and the procedure to be followed by such tribunal was laid down in section 4 of the Regulation. , The case against the appellant and his co-accused was formally referred to the Special Tribunal by an order of the Military Governor dated the 6th of October, 1949 ; but as the charge-sheet had been submitted on a previous date, another order was passed on 8th of October, 1949, validating the presentation of the charge-she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Special Tribunal became void after 26th of January, 1950, as they conflicted with the provisions of articles 14 and 21 of the Constitution. As the trial became bad in law after 26th January, 1950, the resulting conviction and sentence were, it is said, illegal also, and the appellant is entitled to be released from his imprisonment When this petition came up for hearing, a question was raised by the learned Advocate-General for the State of Hyderabad as to whether a petition under article 32 would be the proper remedy in a case like this having regard to the fact that the High Court, which was a properly constituted court and was competent to go into the question of jurisdiction of the Special Tribunal, had already dealt with this matter. Without expressing any opinion on this point, we decided to hear arguments on the questions raised treating them as preliminary points in the appeal itself. Whether the appeal will- be heard further on its merits will depend upon the decision we arrive at in the present hearing. The contention of Mr. Peerbhoy, who appeared in support of the appeal, mainly is that the procedure laid down in the, Special Tribunal Regulation for tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution are not retrospective in their operation. If the procedure subsequently followed was also discriminatory, it is not disputed that the conviction of the accused could not stand. But if it is found that there was no occasion after the 26th of January, 1950, to apply any of the provisions of the Regulation which are discriminatory in their character and if as a matter of fact the procedure that was actually followed was substantially the same as obtains under tHe ordinary law, could it be said that the whole trial is vitiated and the resulting conviction and sentence must necessarily be set aside ? Looking first of all to the provision of the Special Tribunal Regulation, it is to be noticed that the preamble to the Regulation does not specify the object of the enactment or the legislative policy behind it. Apparently an unfettered discretion has been vested in the Military Governor and he can send any offence or class of offences to be tried by the Special Tribunal in any way he likes and there is no objective expressly stated in the statute itself in relation to which his discretion is to be guided or controlled. It is indeed 9, matter of common knowledge that this Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of sentences. These, in brief, are the features of the procedure laid down for trial before the Special Tribunal. It is admitted that at present no system of jury trial obtains in the State of Hyderabad; there is no doubt the provision for trial with the aid of assessors in the city of Hyderabad itself, but there is no such provision for areas outside the city. Under the ordinary procedure, at present case could not have been tried with the aid of assesors and the appellant cannot complain of inequality in this respect. The committal proceedings are undoubtedly eliminated but it has been brought to or notice by the learned Advocate- General appearing for the State of Hyderabad that the preliminary enquiry before committal is not compulsory under the Hyderabad Criminal Procedure Code; and under section 267-A of the Code, a Magistrate is competant without recording any evidence, or after recording some portion of the evidence, to commit an accused for trial by the Sessions Court if he is satisfied that there are sufficient grounds for such committal. It appears therefore that the elimination of the committal proceeding is not by itself a substantial departure from the normal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght about by the accused himself to impede the course of justice, is another special feature of the trial before the Special Tribunal. The two material departures from the normal procedure are to be found in the provisions contained in sub-sections (2) and (7) of section 4 of the Regulation. Sub-section (2) authorises the tribunal to dispense with recording the evidence in extenso and provides that a record of the memorandum of the substance of the deposition of each witness would be sufficient. There is a proviso introduced by sub-section (2) (a) which says that the above provision sball not preclude a special Tribunal from directing in respect of any trial that the evidence should be taken down at length. Sub-section (7) lays down that, unless something to the contrary has been provided for in the Regulation, the tribunal should follow the procedure of summary trial, though even here it can adopt the warrant procedure for reasons which it has got to record in writing. The provision relating to summary trial irrespective of the nature of the offence and also that relating to: recording of evidence in a summary manner may be considered prejudicial to the accused and, may normall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code which speaks of recross-examination by the accused in a sessions case. It appears that under the provisions of the Hyderabad Code, in a sessions trial the prosecution witnesses are first examined and as soon as the examination-in-chief of each one of them is finished they could be cross-examined on behalf of the accused. After the prosecution has closed its case and before the accused produces his defence witnesses, he is allowed to recross-examine, if he so desires, any of the prosecution witnesses, though such recross-examination is limited to matters which were not put to the witnesses in the previous cross-examination. Neither side could enlighten us on the point as to whether this is allowed only when the committing Magistrate does not examine any witness before the commitment order or it is applicable also when the prosecution witnesses are examined and cross-examined at the committal stage. We do not think, however, that it is correct to say that during the sessions trial itself there are three rights of cross-examination given to the accused as Mr. Peerbhoy contends. The accused can crossexamine the prosecution,witnesses As and when they are examined by the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that has been omitted from the Special Tribunal Regulation is the provision relating to the confirmation of certain sentences which under the ordinary law have to be confirmed by higher authorities. According to the Hyderabad Code, the High Court has not only to confirm death sentences, but also sentences of trans-. portation for life and of imprisonment for a period exceeding 10,years. The death sentences have got to be further confirmed by the Nizam. It would appear from what has been stated above that there are a few provisions in the procedure for trial by a Special Tribunal appointed under the Regulation mentioned above, which differ from ordinary procedure, and they are prima facie prejudicial to the accused. Under article 13 (1) of the Constitution, all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the fundamental rights under Part III of the Constitution shall, to the extent of such inconsistency, be void. The argument of Mr. Peerbhoy seems to be that it may be that all the provisions relating to trial by a Special Tribunal are not bad, but as some of them undoubtedly are, the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regarded as valid. To quote the observation of our brother Das J. in Lachmandas Kewalram Akuja v. The State of Bombay ((1952] S.C.R.710), as the Act was valid in its entirety before the date of the Constitution that part of the proceeding before the Special Judge which up to that date had been regulated by the special procedure cannot be questioned. The question now arises, how is the validity of the proceedings subsequent to the date of the Constitution to be determined ? It is not disputed that under article 13 (1) of the Constitution those provisions of the Special Tribunal Regulation which are in conflict with article 14 of the Constitution, became void as soon as the Constitution came into force; but article 13 (1) does not make the whole statute invalid, it invalidates only,those provisions which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution and simply because the trial was continued even a ter 26th January, 1950, under the same, Regulation, would not necessarily render the subsequent proceeding invalid. A I that the accused could claim is that, what remained of the trial must not deviate from the normal standard in mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med throughout that it was not possible to proceed with the trial without following the discriminatory procedure and as that procedure became void on the coming into force of the Constitution, the jurisdiction of the Special Judge practically came to an end. Das J. who delivered the Majority judgment of this Court in Lachmandas s case([1952]S.C,R. 710, 735,) expressly observed as follows: 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. Whether this assumption was well-founded or not it is not profitable for us to discuss at the present stage; but it is clear that this aspect of the case was not presented to the court at all by the learned counsel on either side and so was not considered by the court. The decision in Lachmandas s case(1) cannot, therefore, be put forward as an authority against the view which we have indicated above. In cases of the type which we have before us where part of the trial could not be challenged as bad and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel on both sides had finished their arguments on questions of law, we gave the appellant an opportunity to place materials before us for the purpose of showing to what extent he had been actually discriminated against and prejudiced in the trial t at was held after the coming into force of the Constitution. He has filed a long affidavit setting out in an elaborate manner his alleged grievauces and we gave the parties a further hearing upon it. As we have already stated, no exception could be taken to the Special Tribunal s taking cognizance of the case under an order of the Military Governor as all this happened long before the advent of the Constitution; and it cannot be urged that the creation of ai Special Court by itself was, an inequality in the eye of law. Apart from other circumstances, the present case was undoubtedly a big one and the trial was expected to take a considerable period of time before it could be completed. To allow it to go before the ordinary court would mean nothing else but blocking the hearing of all other cases for an indefinite length of time. There was nothing per se unreasonable in appointing a Special Court and section 13; of the Hyderab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for information of the tribunal. In reply to this it is stated in the affidavit filed on behalf of the State that the appellant did not want to be present and he gave a note to the tribunal stating therein all that he wanted to state. Whatever the actual facts might have been it seems to us that this is not a matter which is connected in any way with the provision of the Regulation which enables the tribunal to proceed with the trial in the absence of the accused. The Regulation authorises the tribunal to go on with a trial in the absence of the accused only when it is satisfied that the absence has been brought about by the accused. himself to impede the course of justice. Obviously it was not under this provision that the tribunal went to inspect the spot of occurrence in the absence of the accused. In fact, the Regulation does not say anything at all bout local inspection. The provision for local inspection is contained in section 528 of the Hydersbad Code which corresponds to section 539A of the Indian Code. It is important to note that the Hyderabad Code does not say anything about giving notice to the parties before holding any local inspection, though that is necessary u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the Hyderabad Criminal Procedure Code. In cataloguing his grievances the appellant has stated inter alia in his affidavit that he was kept in military custody and also in a solitary cell, that he was separated from his fellow prisoners, that the tribunal was completely dominated by the Executive and that a stenographer was kept sitting behind him all the time that, the trial was going on who took down every word that passed between him and his counsel. It is not at all necessary for us to inquire into the truth or falsity of these allegations, for even if they are true, they are irrelevant to the present enquiry. These are matters not related in any way to the question of inequality in connection with the provisions of the Special Tribunal Regulation. Finally Mr. Peerbhoy raised an objection based on article 21 of the Constitution and contended that the appellant was not tried in accordance with the procedure established by law. What he said is, that the Military Governor had no authority under section 3 of the Regulation to refer an individual case to the Special Tribunal for trial, for it authorised him to direct the Special Tribunal -to try any off once whether comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nected Appeals Nos. 277, 278, 279 and 280 of 1951, which have been preferred respectively by Khadar Ali Khan, Mohd., Hazi Khan, Mahbat Khan and Syed Nazir Ali, the four co-accused of Qasim Razvi in the Bibinagar dacoity case, who were tried along with him by the Special Tribunal No. IV at Trimulgherry. They were sentenced to various terms of imprisonment on charges of dacoity, rioting, etc. , by the Special Tribunal and the convictions and sentences were affirmed with slight modification by the High Court of Hyderabad in appeal. They have now come up to this court on the strength of a certificate granted by the Hyderabad High Court under articles 132 and 134 of the Constitution. The appeals are not yet ready for hearing, but as in Qasim Razvi s case, the appellants have filed a petition under article.32 of the Constitution being Petition No. 368 of 1952-attacking the validity of the trial by the Special Tribunal on the same constitutional grounds as have been urged by Qasim Razvi in his petition. We heard arguments on these questions treating them as preliminary points in the appeals. The points are, identically the, same as in Qasim Razvi s case; only in the affidavits, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l law which held good until the Constitution of India came into force, but which was held to be bad-after that date because it offended article 14 (1). Before the Constitution the State of Hyderabad was not part of the Dominion of India. Its ruler the Nizam, was sovereign in all material respects ahad absolute powers over his subjects, including thepower to legislate as he wished at his will and even at his caprice, if he so chose. Soon after the partition of India, and in particular in the year 1948, there occurred grievous disturbances in the State which led to what is popularly known as police action on the part of India. In the course of these disturbances many, grievous crimes :were committed, and in particular, complaints were laid before the authorities of a series of grave offences said to have been comitted on the 10th of January, 1948. Those are the offences with which we are concerned. The first information report relating to them was lodged the following day. Some eight months later, namely on 13th September, 1948, there came the police action. It lasted for three days and swift on its conclusion a Military Governor was appointed for the State of Hyderabad. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idly continued by the same Tribunal and under the same procedure. after that date. This, to my mind, involves consideration of three distinct things: (1) does the Regulation itself, or any part of it, contravene article 14 (1) ? (2) does the Order made on the strength of the Regulation do so ? and (3) does the procedure adopted by the Tribunal do so ? As to the first, namely the Regulation itself, article 13(i) falls to be considered. It runs: All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. That, to my mind, raises this query if this law had been passed after the Constitution and the present trial had commenced after it, would either have been valid ? If not, I cannot see how a conviction can be based after the Constitution on a procedure and on matter which is abhorrent to its fundamental chapter however much all that was done may hive been, good up to that date. This, to my mind, is not giving retrospective effect to the Constitution because the vital part of a trial is its conclusion. I am not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituted under the impugned Act. I now proceed to consider whether this Regulation could have been upheld as good law if it had been promulgated after the Constitution; and here it is necessary to emphasise that in testing the validity of a law it is irrelevant to consider what has been done under it, for a law is either constitutional or not and its validity or otherwise cannot depend upon what has been accomplished under its provisions. That, to my mind, is self-evident, but it also seems to follow from that portion of the, majority decision in the West Bengal case([1952] S.C.R. 284.) which is summarised in headnote (ii) at page 285 and head note (v) at page 286. Now in Lachmandas s case(I)there is this important passage at page 733: 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 Bought to be achieved by the Act. This, in my opinion shows that the majority considered it relevant and important to determine the post-constitutional validity of an enactment which was valid up to the date of the Constitution by the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages which other accused similarly placed, can, demand, then article 14 comes into play. The impugned Regulation in the present case Rulers from the same defects. Under it the Military Governor is authorised to direct that, any offences whether committed before on after the commencement of the Regulation, or any class of offences, shall be tried by a Special Court, also to transfer any particular,case from the ordinary criminal courts to a Special Tribunal. His discretion is unfettered and absolute. So far as the special procedure is concerned, three of its features have been considered in one or other of the three earlier decisions and criticised as abhorrent to article 14. Those features are (1) an absence of committal proceedings, (2) deprivation of the right of (a) revision, (b) transfer and (o) of the right to .demand a do novo trial in certain circumstances, and (3) the right of the Special Tribunal to adopt a summary procedure in cases where that would not ordinarily be permissible. In the present case, the question of a de novo trial is not only linked up with the absence of a right of transfer but with the fact that even when the constitution of the Special Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed much had the court language in that area been English, for in that event there would have been no discrimination. It would only have been one of the accidents of fortune which befall many. an accused who is tried in an area where the court language is one which he does not understand. But when the de facto language of the courts is his own mother tongue and all other Urdu knowing persons in that area are tried in the language which they and he understand and he alone is discriminated against by being pent for trial to a court whose proceedings are conducted in a language which he does not know, or, at best, understands but imperfectly, the matter assumes a very different hue. In Hyderabad the court language in practice is Urdu and so great is the importance attached to it that neither judges nor counsel are permitted to function there unless they know that language. Indeed, the matter was carried to such length is that one of the appellant was refused the services of an eminent King s Counsel from England on the ground that the latter did not know the court language Urdu. But at the same time the appellants were tried in a language which the gentleman in question did know an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial. I must not be understood to say that the appellants were treated unfairly by the Tribunal. As far as I can see, much was stretched in their favour, and in the matter of counsel to defend them funds were provided and spent by the State on a lavish-scale. I have little doubt that the conduct of the appellants in discharging those counsel after they had been generously paid by the State evidences their bad faith and their desire to thwart a fair and proper trial, fair and proper that is to say before the Constitution. But the issue before us is not fairness but discrimination within the meaning of article 14. The money and time which would be wasted were my view to prevail would be unfortunate but all that is part of the price to be paid for the maintenance of the principles which our Constitution guaranteed part of the price of democracy. As regards the question of revision and confirmation of sentences and transfer and bail, it is in my opinion no answer to say that the sentences imposed would not have been subject to confirmation even in an ordinary court and that there were no applications for transfer or revision or bail after the Constitution. The point is that the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by Syed Qasim Razvi and his co-accused and Serial No,. 2 referred to the offences in respect of the Bibinagar dacoity against Syed Qasim Razvi and 20 other persons. We are not concerned with the first incident and we understand that Razvi was acquitted of the charge of murder. In the second case forty prosecution witnesses were examined-in-chief up to November 21, 1949, eighteen were cross-examined between this date and January 26, 1950, and 22 were cross-examined after that date. Razvi was examined on November 29, 1949, and again on February 26, 1950. The charges were framed on December 5, 1949. He was convicted on September 11, 1950, and was sentenced to 7 years rigorous imprisonment under section 330 of the Hyderabad Penal code, corresponding to section 395 of the Indian Penal Code, and 2 years rigorous imprisonment under each of the following sections, section 124 corresponding to section 148, Indian Penal Code, section 177 corresponding to section 201, Indian Penal Code, and section 177/66 corresponding to Section 109, Indian Penal Code, the sentences to run concurrently. Similar sentences were passed against the coaccused. Their convictions and sentences we Ire u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived in the same spirit, i.e., to expedite the disposal of cases, so that justice may not be delayed. By section 3 of the Regulation it was provided that the Military Governor may by general or special order direct that the special Tribunal shall try any offence whether committed before or After the-commencement of the Regulation, or any class of offences and may by any such order direct the transfer to a special Tribunal of any particular case from any other - special Tribunal or any other Criminal Court or direct the transfer from a special Tribunal of any particular case to any other Criminal Court. It is contended not without force that no notification was issued in pursuance of section 3 as to what offence or class of offences shall be tried by the Tribunal. The petitioner,It is urged, would have had,no grievance if a certain, class of offences in the State or in any particular portion thereof, committed by all and sundry, were with a view to expeditious disposal tried by a Special Tribunal, but the perticular case of the petitioner was alone singled out for trial by the Special Tribunal, while all offences, irrespective of their nature or gravity committed in Bibinagar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons exercising original jurisdiction, hence there is only one right of appeal to the High Court. If the case had been tried by a Magistrate of the 1st Class or a District Magistrate, a second appeal would have been competent where the sentence did not exceed four years. 12. There is no right of transfer. 13. There is no right of revision. 14. There is no right of confirmation of sentence which existed under the Hyderabad Code in favour of the High Court, the Government and the Nizam in certain cases. Without minimizing the importance of the other provisions, I shall prefer to deal with the more sub. stantial ones given as Nos. 1, 2, 3, 4, 6, 9, 12, 13 and 14. 1. The relevant provision of the Hyderabad Criminal Procedure Code hereinafter called the Code is section 267A, which unlike Chapter XVIII of the Indian Code does not make it obligatory that every case triable by a Court of Sessions should be committed to it by a Magistrate. Direct commitment to the Sessions without a preliminary inquiry is, however, permissible where the accused himself does not want such an inquiry, or where on being questioned, he admits facts which constitute an offence fit to be tried by a Ses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code corresponding to section 350 of the Indian Code provides for the right of a de novo trial at the instance of the accused, in cases where the Magistrate having heard and recorded the whole or any part of the evidence, in any case ceases to exercise jurisdiction therein and is succeeded by another Magistrate. The Magistrate has, however, got the power to reject the accused s demand either wholly or partly but in that case he is. bound to record reasons. It is true that the right to demand a de novo trial is subject to the Magistrate s power of refusal, coupled with the obligation to record reasons, but the language of the Code appears to suggest that such a refusal should be an exception rather than the rule. It is pointed out by the learned Advocate-General for the State that the question of a de novo trial did not arise in point of fact but the possibility of a vacancy arising by reason of circumstances beyond human control could not be eliminated. 9. Under section 468 of the Code any person accused of a non-bailable offence may be released on bail, unless there appears reasonable ground for believing that he has been guilty of an offence punishable with death or tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daylight robbery took place at Ahmedabad in which a driver and a peon of the Central Bank were shot dead on May 26th, 1949, while they were carrying bank money in a motorvan. By section 12 of the Bombay Public Safety Measures Act, 1947, which was in the same terms as section 5 (1) of the West Bengal Act and section 11 of the Saurashtra Ordinance it was provided that 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. Section 10 empowered the Government by notification in the Official Gazette to constitute special courts of criminal jurisdiction for such areas as may be specified in the notification. Accordingly by a notification issued in August, 1949, the State of Bombay exercising its power under section 11 appointed the District and Sessions Judge of Ahmedabad as the Special Judge to try the accused. The charges against the accused were framed on January 13, 1950, without any committal by the Magistrate. Seventeen prosecution witnesses were examined before January 26, 1950, and 45 after that date. The accused were convicted on March 30, 1950, and sentenced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd finally that, in any event, section 5 (1) of the West Bengal Act and section 11 of the Saurashtra, Ordinance, both of which corresponded to section 12 of the Bombay Public Security Measures Act, in so far as they authorised the Government to direct specific and particular cases to be tried by the Special Judge, was unconstitutional and void. In view of the departures from the ordinary law brought about by the Bombay Public Safety Measures Act, 1947, which are noted above, it cannot but be held, on a parity of reasoning, that at any rate section 12 of the Act, in so far as it authorises the Government to direct particular cases to be tried by a Special Judge, is also unconstitutional. Dealing with the argument that the special procedure prescribed by the impugned Act constitutes a departure from the ordinary law of procedure and is, in some , important respects, detrimental to the interest of the persons subjected to it and as such is discriminatory he observed:- The discrimination does not end with the taking of cognizance of the case by the Special Judge without the case being committed to him but continues even in subsequent stages of the proceedings in that the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary, 1950, but is for unconstitutional discrimination shown against them since that date. 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 I above he could not proceed at all as a Judge of a Special Court constituted under the impugned Act....... The point for decision now is whether the continuation of -the procedure by the Act after the Constitution came into force operates to the prejudice of the appellants and, as such, offends against their newly acquired fundamental right of equal protection of law guaranteed by article 14. The Constitution 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. The view taken by my Lord the Chief Justice was that the provisions of the Constitution relating to fundamental righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t think that the order of rejection meant that the stage of interference was not appropriate and that he would have the right to interfere at a later stage, say at the time of the appeal. The learned Chief Justice could not have been unaware of the fact that no revision was competent against an order of the Tribunal under the Regulation. It is significant that this order was passed after the coming into force of the Constitution. Similarly if the accused had asked for bail, and it had been refused,he could not have been able successfully to move the High Court in revision against the order of refusal. It is obvious therefore that just as in Lachmandas s case (1) the procedure under the Regulation could not be continued without eliminating the right to apply for transfer or for revision, in the same (1) [1952] S.C.R. 284. way the trial of the petitioner could not go on without these discriminatory provisions after the 26th of January. Again the right to confirmation of the sentences passed by the Tribunal could not be given effect to as the Regulation definitely negatived such a right. Whether in the events that happened the question of confirmation did not arise is besides th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hajan J -That the Special Act lays down substantially different rules for trial of offences and cases than laid down in the general law of the land, i.e., the Code of Criminal Procedure, cannot be seriously denied. It shortcircuits that procedure in material particulars.......... Not only does the special law deprive them of the safeguard of the committal procedure and of the trial with the help of jury or assessors, but it also deprives them of the right of a de novo trial in case of transfer and makes them liable for conviction and punishment for major offences other than those for which they may have been charged or tried....... To a certain extent the remedies to which an accused person is entitled for redress in the higher courts have been cut down. Even if it be said that the statute on the face of it is not discriminatory, it is so in its effect and operation, inasmuch as it vests in the executive government unregulated official discretion, and therefore has to be adjudged unconstitutional. Mukherjea J.-I agree with the Attorney-General that if the differences are not material, there may not be any discrimination in the proper sense of the word and minor deviation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw in such cases the protection which the accused normally enjoy under the criminal law of the country, is on the face of it discriminatory. Das J.-The elimination of the committal proceedings and of trial by jury (section 6), the taking away of the right to a de novo trial on transfer (section 7), the vesting of discretion in the Special Court to refuse to ) summon a defence witness if it be satisfied that his evidence will not be material (section 8), the liability to be convicted of an offence higher than that for which the accused was sent up for trial under the Act (section 13), the exclusion of interference of other-courts by way of revision or transfer or under section 491 of the Code (section 16) re some of the glaring instances of inequality brought about by the impugned Act. Chandrasekhara Aiyar J.-Preliminary inquiry before committal to the sessions, trial by jury or with the aid of assessors, the right of a de novo trial on transfer of a case from one court to another, have been taken away from the accused who are to be tried by a Special Court. Bose J.-We find men accused of heinous crimes called upon to answer for their lives and liberties. We find the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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