TMI Blog1952 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 , (1) Since reported as [1952] S.C.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 reasoning indicated in my judgment in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondent State by one of its responsible officers states facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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 Ordinance (Ordinance No. IX of 1948) was promulgated, which provided among other things fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and that had led to the promulgation of Ordinance No. IX of 1948, which pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defect, because the expression speedier trial standing by itself provided no rational basis of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary. 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 devised for the purpose. This, in my opinion, is in plain language the rationale of the Ordinance, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 the special tribunal while a more serious offence be tried in the ordinary way. The notification in this case full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rajpramukh of Saurashtra as well as the Notification issued by the State Government on 9/11th February, 1951, under which the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 challenged as being in conflict with article 14 of the Constitution. This point did come up for consideration before us in the appeals again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 period of limitation within which an accused convicted by the Special Judge has to file his appeal before the High Court and clause (3) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the aggrieved person if the classification made by the administrative body is arbitrary or capricious ? It is a doctrine of the American c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ethod 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 classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can certainly be annulled as offending again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 earlier ordinance, to which the present one is a subsequent addition by way of amendment, was passed by the Rajpramukh of Saurashtra on 2nd April, 1948. It is descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered 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 to the specific sections of the Indian Penal Code. Mr. Chibber attacks the classification of offences made in this list primarily on the ground that while it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 culpable homicide not amounting to murder is something less heinous than murder, although it finds a place in the list. In my opinion, the appellant can have no right to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial 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 point has been raised by learned counsel for the appellant, namely, that the Special Court had no jurisdiction to try this case and the whole trial and convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49, 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 Saurashtra. 11. Jurisdiction of Special Judges.--A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts 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 were void under article 13. The Saurashtra notification, however, has been issued quite obviously under that part of section 11 which authorises the State Government to direct offences' ', classes of offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual 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 between man and man although both of them were situated in exactly the same or similar circumstances. I do not accept this argument as sound, for, the reasons I adopted in my judgment in the West Bengal case in repelling this argument apply with equal, if not with greater, force to the argument directed against the validity of the Saurashtra Ordinance. It is obvious that this part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 point their fingers to the other persons who may be charged before an ordinary Court with similar offences alleged to have been committed by them in a different place and in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals. In my judgment, this part of the section, properly construed and understood, does not confer an unc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 down any classification in themselves. The preamble to the earlier Ordinance of 1948, which is still intact as the later one is only an amending measure, merely refers to the need to provide for public safety, maintenance of public order, and the preservation of peace and tranquillity in the State of Saurashtra. This by itself indicates no classification, as the object is a general one, which has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 judgment in The State of West Bengal v. Artwar Ali Sarkar([1952] S.C.R. 284.), I prefer not to base my decision on the classification test. For the reasons given there I am of opinion that the differentiation here travels beyond. bounds which are legitimate. It is true the points of differentiation are not as numerous here as in the other case but the ones which remain are, in my judgment, of a substantial character and cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
