TMI Blog1980 (4) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... the Delhi High Court for enhancement of the sentences. The Special Courts Act (No. 22 of 1979 and hereinafter to be referred to as the 'Act') was passed by Parliament and received the assent of the President on 16th May 1979. On the 27th June 1979, the Central Government made a declaration under s.5 (1) of the Act as a consequence of which the appeals stood transferred to this Court. The appellants have raised a number of preliminary objections relating to the constitutional validity of the Act and various provisions thereof on several grounds including the contravention of Articles 14 and 21 of the Constitution of India. Alternatively, it was argued that some of the provisions of the Act did not at all apply to the appellants and the transfer of the appeals from the High Court to this Court was not legal. The State has appeared through Shri Soli J. Sorabjee who has countered all the objections raised by the appellants and has submitted that the Act is a valid piece of legislation and that there is no illegality in the transfer of the appeals from the High Court to this Court. In view of the nature of the preliminary objections raised by the appellants we decided to disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Union gave an express undertaking that the defects pointed out in the Bill would be suitably removed so as to bring the Bill in accord with the opinion expressed by the Court. Consequently, a fresh Bill was prepared and was introduced in the Lok Sabha on the 21st February 1979. This Bill incorporated the suggestions of this Court, deleted reference to the period prior to the 25th June 1975 in the preamble, made a provision for transfer of a case from one Special Judge to another by the Supreme Court and provided that a Special Court would consist of a sitting Judge of a High Court nominated by the Central Government with the concurrence of the Chief Justice of India. After some debate the Bill was passed by the Lok Sabha on the 9th March 1979. It was then sent to the Rajya Sabha where its various provisions were fully debated and certain important suggestions were made by the Members of the Rajya Sabha as a result of which the Bill was returned by the Rajya Sabha with certain amendments on 21st March 1979. Thereafter the Government accepted the amendments suggested by the Rajya Sabha and incorporated the same in the Bill which was then passed and ultimately received the assent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted during the operation of the said Proclamation of Emergency, during which a grave emergency was clamped on the whole country, civil liberties were curtailed to a great extent, important fundamental rights of the people were suspended, strict censorship was imposed on the press, judicial powers were severely crippled and the parliamentary democratic system was emasculated; (4) AND WHEREAS all powers being a trust, and holders of high public or political offices are accountable for the exercise of their powers in all cases where Commissions of Inquiry appointed under the Commissions of Inquiry Act, 1952 or investigations conducted by Government through its agencies disclose offences committed by such holders; (5) AND WHEREAS it is the constitutional, legal and moral obligation of the State to prosecute persons involved in the said offences; (6) AND WHEREAS the ordinary criminal courts due to congestion of work and other reasons cannot reasonably be expected to bring those prosecutions to a speedy termination; (7) AND WHEREAS it is imperative for the efficient functioning of parliamentary democracy and the institutions created by or under the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us clauses of the preamble it is manifest that particular type of persons, namely, those who are holding high public or political offices by way of a trust have been put in a separate class along with those who have committed offences during the Emergency and who also bear the same characteristics as those indicated in clause (4). Section 2 of the Act defines Code , declaration and Special Court and the residuary clause (d) thereof says that words and expressions not defined in the Act would have the same meaning as in the Code of Criminal Procedure. Section 3(1) gives power to the Central Government to establish an adequate number of Special Courts by notification in the Official Gazette. Section 3(1) enacts that a Special Court shall consist of a sitting Judge of a High Court nominated by the Chief Justice thereof with the concurrence of the Chief Justice of India. Section 4 empowers the Special Court to take cognizance and try such cases as are instituted before it or transferred to it in accordance with the manner provided by the Act. Section 5(1) is the pivotal provision which lays down the conditions under which the Central Government is empowered to make a declaration w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... norms under which an application for transfer could be made. Sub-section (3) of s.10 empowers the Supreme Court to grant compensation to any person who has opposed the application for the transfer of a case if the Court finds that such an application was frivolous or vexatious. Section 11(1) prescribes the forum of an appeal to the Supreme Court against a judgment, order or sentence passed by a Special Court but excludes interlocutory order, from its ambit. It may be noted that interlocutory orders have been excluded from the purview of s. 11(1) so as to eliminate unnecessary delays in the trial of a case by a Special Court. Even the code of Criminal Procedure has barred any revision against an interlocutory order by virtue of the provisions of s. 397(2) of the code of Criminal Procedure, 1973. Sub-section (2) of s. 11 provides that no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court except as provided for under section 11(1). Sub-section (3) provides the period of limitation for filing an appeal before the Supreme Court and the proviso thereto confers power on the Supreme Court to condone any delay if sufficient cause is shown, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State. It is well settled that in applying Art. 14 mathematical precision or nicety or perfect equanimity are not required. Similarity rather than identify of treatment is enough. The courts should not make a doctrinaire approach in construing Art. 14 so as to destroy or frustrate any beneficial legislation. What Art. 14 prohibits is hostile discrimination and not reasonable classification for the purpose of legislation. Furthermore, the Legislature which is in the best position to understand the needs and requirements of the people must be given sufficient latitude for making selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to the object of the Act, Art. 14 would not be attracted. That is why this Court has laid down that presumption is always in favour of the constitutionality of an enactment and the onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept of equality. It has also been held that in order to sustain the presumption of constitutionality, the Court is entitled to take into consideration matters of common knowledge, common report, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of persons during the Emergency period. It was contended that the impugned Act transgressed the limits imposed by the judgment in the Reference case by bringing within its fold offences committed prior and subsequent to the Emergency and thus was in direct conflict with the opinion of this Court rendered in the Reference case. In amplification of this argument it was contended that this Court struck down that part of the Bill which related to the period between February and June 1975 on the ground that persons having committed offences during that period could not be clubbed with those who had committed offences during the period of Emergency. In other words, the argument was that the Act, by clubbing together persons accused of offences committed during the Emergency with those alleged to be guilty of crimes pertaining to periods before and after the Emergency (i.e., by dealing with offences committed at any point of time whatsoever), has violated the guarantee under Art. 14 and the classification made by the Act is n direct contravention of the opinion given by this Court in the Reference case. In support of his contention Mr. Bhatia relied on the following observations of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al laws have to be applied to all in the same situation and legislature is free to recognise the degree of harm or evil. (Emphasis ours) Special stress was laid on the observations of this Court that the offences alleged to have been committed during the Emergency by persons holding high public or political offices were a class apart because such offences were committed under the cover of Emergency which provided a unique opportunity to the holders of the said offices to subvert the rule of law. It was urged that this cannot be said of the period either before or after the emergency when no such cover or opportunity was available to the offenders concerned to misuse or abuse their powers and commit offences. We find this argument to be without any substance. To begin with, it cannot be gainsaid that this Court while dealing with the Reference case was not at all concerned with the provisions of the Act which is of much wider application than the Bill considered by the Court in the Reference. It is no doubt true that the Bill contained provisions for punishing only those offenders who were accused of offences committed during a particular period namely the period of Emergency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emergency crime-doers in the higher brackets and picks out only 'emergency' offenders, its benign purpose perhaps be comes a crypto cover-up of like criminals before and after. An 'ephemeral' measure to meet a perennial menace is neither a logical step nor national fulfillment. The classification, if I may anticipate my conclusion, is on the brink of constitutional break- down at that point and becomes almost vulnerable to the attack of Art. 14. x x x The crucial test is 'All power is a trust', its holders are 'accountable for its exercise', for 'from the people and for the people, all springs, and all must exist'. By this high and only standard the Bill must fail morally if it exempts non-Emergency criminals about whom prior Commission Reports, now asleep in official pigeon holes, bear witness and future Commission Reports (who knows ?) may, in time, testify........... Nothing about Emergency period is adverted to there as a distinguishing mark. If at all, the clear clue is that all abuse of public authority by exalted public men, whatever the time of Commission, shall be punished without the tedious delay which ordinarily defeats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay mention here that the various observations made by Chandrachud, C.J., and Krishna Iyer, J. in the Reference case were highlighted during the debates which followed the introduction of the bill in the Lok Sabha and the Rajya Sabha after the opinion of this Court was given. The Bill was returned to the Lok Sabha on March 21, 1979 with suggestions for its amendment so as to make it embrace offences without reference to a particular period, namely, the period of Emergency. The Lok Sabha accepted the suggestions and passed the Bill in the form of the Act which received the assent of the President on the 16th May 1979. Thus, the Act incorporates not only the above-extracted observations made by Chandrachud, C.J., and Krishna Iyer, J. but also the views expressed by the Hon'ble Members of the two Houses of Parliament. In view of the factors mentioned above, we are fully satisfied that the Act does not suffer from the infirmities pointed out by Mr. Bhatia and the circumstance that it applies to offences committed at any time by a particular set of persons possessing special characteristics does not render it unconstitutional, for, when it puts into a class a particular set of per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treatment or disadvantageous procedure loses its relevance, the reason being that for the purposes of article 14, unequals cannot complain of unequal treatment. We shall, however, deal with the question whether or not the procedure is disadvantageous when we examine the argument of the learned counsel regarding sections 5, 6, 7 and 11 of the Act. Thus, to sum up, the position so far as this part of the argument is concerned is as follows:- (1) Separate grouping of holders of high offices for purposes of expeditious criminal action to be taken by superior courts is a reasonable and valid classification because it enhances confidence on the rule of law, strengthens the democratic system and ensures purity of public life and political conduct. (2) The Bill was challenged before the Supreme Court on the touchstone of Art. 14 on several grounds. In the first place, it was argued that no rational basis for separately classifying Emergency offenders existed. The second ground of challenge was that assuming that there was a valid classification, the same was bad because it suffered from the vice of under-inclusion inasmuch as holders of high public or political offices were le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s we are hearing the appeals of persons who have been convicted and sentenced to various terms of imprisonment so that their liberty is involved, we feel that we should go into Mr. Bhatia's argument. As regards the definition of 'high public or political offices' the expression is of well-known significance and bears a clear connotation which admits of no vagueness or ambiguity. Even during the debate in Parliament, it was not suggested that the expression suffered from any vagueness. Apart from that even in the Reference case, Krishna Iyer, J., referred to holders of such offices thus:- heavy-weight criminaloids who often mislead the people by public moral weight-lifting and multipoint manifestoes........ ......such super-offenders in top positions............No erudite pedantry can stand in the way of pragmatic grouping of high-placed office holders separately, for purposes of high-speed criminal action invested with early conclusiveness and inquired into by high-level courts. (Emphasis ours) It is manifest from the observations of Krishna Iyer, J. that persons holding high public or political offices mean persons holding top positions wielding large pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is called Minister or Secretary of State or President of the Board. He is a member of the Government and changes with the Ministry of the day; and he may also be a member of the Cabinet. Parliamentary Secretaries-Under the Minister will be one or more Parliamentary Secretaries, or Parliamentary Under-Secretaries of State if the Minister himself is a Secretary of State. As their name implies, Parliamentary Secretaries are members of one or other of the Houses of Parliament, they are Junior Ministers who change with the Government of the day. They assist their Chief in the Parliamentary or political side of his work, as well as in the administration of his Department...... The detailed administration of the work of a Government Department is carried out by permanent civil servants. Although, like Ministers, they are servants of the Crown, civil servants are called permanent since their appointment is non-political and in practice lasts during good behaviour, as opposed to Ministers, Parliamentary Secretaries, etc., who are responsible to Parliament and change office with the Government. So also, Ramsay Muir in his book 'How Britain is Governed' (3rd Ed. p. 81) s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Act contemplates only a special class of officers or politicians who may be categorised as follows:- (1) officials wielding extraordinary powers entitling them to take major policy decisions and holding positions of trust and answerable and accountable for their wrongs: (2) persons responsible for giving to the State a clean, stable and honest administration; (3) persons occupying a very elevated status in whose hands lies the destiny of the nation. The rationale behind the classification of persons possessing the aforesaid characteristics is that they wield wide powers which, if exercised improperly by reason of corruption, nepotism or breach of trust, may mar or adversely mould the future of the country and tarnish its image. It cannot be said, therefore, with any conviction that persons who possess special attributes could be equated with ordinary criminals who have neither the power nor the resources to commit offences of the type described above. We are, therefore satisfied that the terms 'persons holding high public or political offices' is self-explanatory and admits of no difficulty and that mere absence of definition of the expression would not vit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the appellants that Parliament was not competent to pass a Special Act and create Special Courts for a particular set of offenders. This argument need not detain us because it has been effectively answered in the reference case which has held clearly that Parliament was fully competent to pass the Bill creating Special Courts. Regarding the validity of sections 7 and 11 of the Act which correspond to clauses 6 and 10 of the Bill, Chandrachud, C.J., observed as follows:- In view of our conclusion that Parliament has the legislative competence to enact clauses 6 and 10(1) of the Bill, it is unnecessary to consider the argument of the learn ed Solicitor General that, everything else failing, Parliament would have the competence to legislate upon the jurisdiction and powers of the Supreme Court by virtue of article 248(1) read with entry 97 of List I..... To sum up, we are of the opinion that clauses 2, 6 and 10(1) of the Bill are within the legislative competence of the Parliament. That is to say, Parliament has the competence to provide for the creation of Special Courts as clause 2 of the Bill provides, to empower the Supreme Court to dispose of pending appeals and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as discriminative, though to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment. The same view was expressed thus in a later decision of his Court reported as Dantuluri Ram Raju Ors v. State of Andhra Pradesh Anr. The facts that on account of topographical situation some landowners get greater benefit of the drainage scheme because of their lands being more prone to damage by floods is a fortuitous circumstance and the same would not be a valid ground for striking down the impugned legislation. It is well established that if there is equality and uniformity within each group, the law will not be condemned as discriminative though due to some fortuitous circumstances arising out of a peculiar situation, some included in a class get an advantage over others so long as they are not singled out for special treatment. In view of these decisions, the argument of Mr. Bhatia must be overruled. This, therefore, concludes the submissions made by Mr. Bhatia generally regarding the constitutionality of the Act. Mr. Mridual adopted the above-noted ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same thing as power to discriminate nor can the constitutional validity of a law be tested on the assumption that where a discretionary power is conferred on a high authority, the same may or would be exercised in a discriminatory manner. In the case of Dr. N. B. Khare v. The State of Delhi, Kania, C. J., dealing with the same aspect of the matter observed as follows. Moreover, this whole argument is based on the assumption that the Provincial Government when making the order ill not perform its duty and may abuse the provisions of the section. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of power given by a law sometimes occurs; but the validity of the law cannot be contested be cause of such an apprehension. In my opinion, therefore, this contention of the petitioner cannot be accepted. In the case of Kathi Raning Rawat v. The State of Saurashtra this Court observed: 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be exercised is discernible, the conferment of power must be regarded as made in furtherance of the scheme, and is not open to attack as infringing the equality clause. In the case cf V. C. Shukla v. The State through C.B.I. this Court pointed out that where a discretion is conferred on a high authority such as the Central Government it must be presumed that the Government would act in accordance with law and in a bona fide manner, and said: In fact, this Court has held in a number of cases that where a power is vested in a very high authority, the abuse of the power is reduced to the minimum. In view of these decisions, it must be held that the power conferred on the Central Government is controlled by the guidelines contained in the preamble which by virtue of the provisions of s. 5(1) becomes a part of that section. As the power has been conferred on the Central Government which is to make a declaration in accordance with the conditions laid down in s. 5(1) and, therefore, in conformity will. the guidelines mentioned in the preamble, the attack based on discrimination is unfounded and is hereby repelled. Another allied argument advanced by Mr. Bhatia was tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular case, the courts would strike down the act vitiated by it, in exercise of its powers under Arts. 226, 227 or 136. This aspect of the matter was dealt with in the reference case thus:- Though the opinion which the Central Government has to form under clause 4(1) is subjective, we have no doubt that despite the provisions of sub-clause (2) it will be open to judicial review at least within the limits indicated by this Court in Khudaran Das Deo v. The State of West Bengal Ors. (1975, 2, SCR 832, 845). It was observed in that case by one of us, Bhagwati J., while speaking for the Court. that in a Government of laws there; is nothing like unfettered discretion remove from judicial reversibility . The opinion has to be formed by the Government, to set the least, rationally and in a bona fide manner. Another limb of the argument of Mr. Bhatia regarding the provisions about declaration contained in s. 5 (1) was that they are violative of the principles of natural justice inasmuch as they do not provide for any hearing being given to the accused before a declaration is made. This argument, in our opinion, is also without substance. It is to be borne in mind that at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Mr. Sanjay Gandhi and proceeds to state that the said offences ought to be dealt with under the Act. It was vehemently argued that at the time when the declaration was made the appellants had already been convicted and had filed appeals in the High Court and that therefore for the Central Government to say that 'a prima facie case' was made out was to close its eyes to the realities of the situation. The argument, in other words, is that once the prosecution of the appellants had culminated in a conviction and an appeal therefrom, there was no question of the existence of any 'prima facie case', and that the use of such an expression could be intelligible only if the accused were facing criminal proceedings which had not culminated in a conviction. The assertion about the existence of a prima facie case clearly shows, according to learned counsel, that the Central Government did not apply its mind at all to the factors relevant to the issuance of the declaration or that, at any rate, the application of its mind was perfunctory. We find ourselves, unable to accept of this argument which fails to consider certain fundamental aspects of the scope and ambit of s. 5( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and registered a case being RC-2/77- CIU (1) for suspected offences of a conspiracy to commit theft and actual theft of the film materials of the film 'Kissa Kursi Kaa' pro- duced by one Shri Amrit Nahata from the custody of the Ministry of Information and Broadcasting: AND WHEREAS investigations conducted by the Central Bureau of Investigation disclosed offences committed during the period while the proclamation of emergency dated the 25th June 1975, issued by the President under clause (i of Article 352 of the Constitution was in force: AND WHEREAS after completion of investigation the Central Bureau of Investigation filed a charge-sheet on the 14th July 1977 in the court of the Chief Metropolitan Magistrate, Delhi: AND WHEREAS the facts mentioned in the said charge- sheet disclosed offences having been committed by Shri Vidya Charan Shukla, who was the Minister of Information and Broadcasting, Government of India, and Shri Sanjay Gandhi, son of late Shri Feroz Gandhi, under section 120-B of the Indian Penal Code, 1860 (45 of 1860) read with sections 409, 435, 411, 414 and 201 of the I.P.C. as well as substantive offences under section 409, 411, 414, 435 and 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that in accordance with the guidelines contained in the Preamble to that Act, the said offences ought to be dealt with under that Act A perusal of the declaration reveals that it gives the history of the case from beginning to end which demonstrates that the Central Government was fully aware of the various stages through which the trial of the appellants, passed. Thus, the formation of the opinion by the Government of the existence of a prima facie case cannot be held to be perfunctory or illusory. It has not been shown that the declaration was in any way irrational or male fide or based on extraneous considerations. The argument advanced by Mr. Bhatia, therefore, must be overruled. The last plank of attack on s. 5 of the Act is that the declaration is non est because it has not been laid before each House of Parliament as required by s. 13 of the Act. This argument merits some consideration. Section 13 runs thus: 13. Every notification made under sub-section (I) of section 3 and every declaration made under sub- section (1) of section 5 shall be laid, as soon as may be after it is made, before each House of Parliament. As we read the section, we are clearly of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to, laying contained in sub-section (6) of Section 3 of the Act falls within the first category, i.e., simple laying and is directory, not mandatory. We fully agree with this view and hold that on a true interpretation of section 13 of the Act, it is a case of a simple laying of the declaration before each House of Parliament and the declaration cannot be struck down on he grounds suggested by the counsel. It was then submitted that as the declaration is based on the result of an investigation held by a Central agency even though the' offences were alleged to have been committed in a State, it affects the s basic structure of the Constitution and is, therefore, void. This argument, in our opinion, is also misconceived. The doctrine of the violation of basic structure of the Constitution or its fundamental features applies not to the provisions of a law made by a State legislature or Parliament but comes into operation where an amendment made in the Constitution itself is said to affect its basic features like fundamental rights enshrined under Articles 14, 19, 31, or the power of amendment of the Constitution under Art. 368 and so on. The doctrine has no application t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or order in a prosecution in respect of such offence, whether pending or disposed of is itself pending in any court of appeal or revision, the same shall stand transferred for disposal to the Supreme Court. The words whether pending or disposed of are significant and qualify the immediately preceding clause a prosecution in respect of such offence . The legislature has thus taken care to expressly provide that an appeal or revision would be covered by section 7 and transferable to the Supreme Court for disposal if it is directed against a Judgment or order made in a prosecution which is either pending has been disposed of, the only other requirement of the section being that such appeal or revision must itself be pending at the date of the declaration To interpret section 7 in such a way that its applicability is limited to appeals or revisions arising from prosecutions pending at the trial stage at the date of the relevant declarations is possible only if the words or disposed of are treated as absent from the section a course which is not open to this Court in view of the express language used. The argument is therefore repealed. Finally, it was argued that by providi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the appellants, the procedure prescribed by the Act is harsher and more rigorous than that provided for in the Code of Criminal Procedure and causes serious prejudice to the accused and is, therefore. violative of Art. 14 of the Constitution. We might mention here that in view of our finding that the classification made by the Act complies with the dual test laid down by this Court and is a reasonable classification, Art. 14 would not be attracted even if the procedure is held to be harshar than that available under the ordinary law. Apart from that, however, we find that the procedure prescribed by the Act is not harsh or onerous as contended but is more liberal and' advantage to the accused who is assured of an expeditious and fair trial thereunder. Before, however, dealing with this aspect of the matter, we might dispose of an argument advanced by Mr. Bhatia that his client not having held any high public or political office has been drawn into this case by virtue of the declaration and has, therefore, been singled out for a discriminatory treatment. We are unable to accept this argument. It is true that Mr. Sanjay Gandhi has never been the holder of any high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he must obtain the concurrence of the Chief Justice of India therefor. A provision for transfer of cases from one Special Court to another Special Court has also been inserted in 10(1). The challenge on the ground of violation of Art. 21 of the Constitution fails. We shall now deal with the contention that the procedure prescribed by the Act is harsh. In the first place, it was submitted that under s. 7 an appeal pending in the High Court stands transferred to the Supreme Court and that thus the appellant is deprived of a valuable right of having the appeal heard and decided by the High Court which is vested in him the moment he is convicted. Secondly, it was urged that if the appeal in the High Court was decided against the appellant, he would still have a right to move the Supreme Court Under Art. 136 of the Constitution against conviction but that by reason of the appeal having been transferred to the Supreme Court, that right also has been taken away. In our opinion, there is no substance in this grievance. To begin with, an appeal being a creature of statute, an accused has no inherent right to appeal to a particular tribunal. The legislature may choose any tribunal for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case by the highest court in the country both on facts and on law and thus gets a far greater advantage than a right to move the Court for grant of special leave which may or may not be granted, it being a matter of discretion to be exercised by the Supreme Court. A similar view was expressed in Syed Qasim Razvi v. The State of Hyderabad Ors where this Court made the following observations:- But in this present case the original trial was by the Special Tribunal which was invested with the powers of a sessions court and consequently only one appeal would lie to the High Court. It is said that the case could have been tried by the District Magistrate and in that case the accused could have one appeal to the Sessions Judge and a second one to the High Court under the Hyderabad law. This contention rests on a pure speculation and is hardly tenable. In the above view of the matter, we are unable to agree with learned counsel for the appellants that the procedure regarding appeals is harsher than that prescribed by the Code of Criminal Procedure. There is yet another aspect of the matter which was stressed by the learned Solicitor general. Under the provisions of s. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that under the Act the Special Court is presided over by no less a person who is a sitting Judge of a High Court and the possibility of miscarriage of justice is reduced to the bare minimum. While adverting to this aspect of the case, this Court observed in the case of V. C. Shukla v. The State through C.B.I. (supra): That the Act makes a distinct departure from the trial of ordinary offences by criminal courts in that the trial of the offences is entrusted to a very high judicial dignitary who is a sitting Judge of the High Court to be appointed by the Chief Justice concerned on the recommendations of the Chief Justice of India. This contains a built-in safeguard and a safety valve for ensuring the independence of judiciary on the one hand and a complete fairness of trial on the other. In appointing the Special Judge, the Government has absolutely no hand or control so that the Special Judge is appointed on the recommendations of the highest judicial authority in the country, viz., the Chief Justice of India. This would naturally instil great confidence of the people in the Special Judge who is given a very elevated status. We may mention here that in the case of Jaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposition that the procedure prescribed by the Act was harsh and disadvantageous to the accused. Before referring to certain passages in that judgment (which has been fully considered in the Reference case) we consider it necessary to give the background and the special facts in the light of which the Judges of this Court made the relevant observations. The West Bengal legislature passed the West Bengal Special Courts Act (hereinafter to be referred to as the 'West Bengal Act') constituting Special Courts and empowering the State Government to refer cases or offences or classes of cases or classes of offences to such Courts but did not at all indicate any guidelines as to the nature of the cases to be so referred which was thus a matter left entirely to the discretion of the Government. In other words, the Government was given a blanket power to refer any case of whatsoever nature to the Special Courts. Sub-sections (1) and (2) OF s. 5 of the West Bengal Act are extracted below:- 5(1) A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct. (2) No direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on an exact or scientific exclusion or inclusion. It might be noticed, therefore, that even though no guidelines at all were provided by the statute, yet Sastri, C.J., held that the classification was a reasonable one and sustained the validity of the law. The other Judges, however, did not agree with the view of Sastri, C.J., and struck down the provisions of section 5 of the West Bengal Act. However, the judgment is wholly inapplicable to the present case in which the Act not only lays down clear, explicit and exhaustive guidelines but further requires the State Government to act only on the basis of certain specific conditions and after being satisfied on a fully application of the mind that a prima facie case was made out. We have already indicated that by enacting s. 5, the Act makes the various clauses of the preamble as a part of that section. Thus, any possibility of discrimination or absolute or arbitrary exercise of powers is excluded by the Act. The case of Anwar Ali Sarkar (supra), therefore cannot furnish any criterion for judging the validity of any of the provisions of the Act. It is in the light of this background that we have to examine Anwar Ali Sarkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. These observations also do not apply to the facts of the present case because the Act in the present case has provided a rational basis for the classification and laid down specific yardsticks for grouping of special class of persons and has provided a different procedure which is not harsh (the position being different in the West Bengal Act) and which is undoubtedly favourable and advantageous to the accused. Reliance was also placed on a few observations of Mukherjea, J., where he has pointed out that in making the classification the legislature cannot certainly be expected to provide absolute symmetry and has held that while recognising the degree of evil, the classification should not be arbitrary, artificial or evasive. He has stated: It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made. There can be no doubt that the present Act fulfils all the condition laid down by Mukherjea, J., who found that certain provisions of the West Bengal Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic republic.. It is the differentiation which matters; the singling out of cases or groups of cases or even of offences or classes of offences, of a kind fraught with the most serious' consequences to the individuals concerned, for special, and what some would regard as peculiar, treatment. All these observations have however, to be read in the light of the peculiar provisions of the West Bengal Act which contained no guidelines, no conditions, no safeguards but conferred uncontrolled and arbitrary powers on the Government to make the classification as it liked. This, however, is not the case here. We are, therefore, unable to agree with learned counsel that the observations of the Judges constituting the Bench in Anwar Ali Sarkar's case (supra) can be called into aid for the purpose of striking down the Act in the present case. Thus, after a consideration of the provisions of the Act, the guidelines contained in the preamble, the procedural part of the Act and the classification made we are clearly of the opinion that none of the sections of the Act are violative of Art. 14 or Art. 21 or any other provision of the Constitution. We hold that the classification is val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orous imprisonment for one year; under s. 414 to rigorous imprisonment for one year; under s. 201 in regard to the negative etc., to rigorous imprisonment for one year; under s. 201 in regard to 13 trunks, etc., to rigorous imprisonment for one year and under s. 409 read with s. 109 to rigorous imprisonment for two years. The aforesaid sentences or imprisonment were ordered to run concurrently in the case of both the accused. The learned Sessions Judge has given full and complete details of the prosecution case against the appellants and has divided the allegations against them in several parts. On being convicted by the Sessions Judge, Delhi, the accused filed appeals before the Delhi High Court against their convictions and sentences, indicated above, and were released on bail pending the hearing of the appeals. Meanwhile, the Special Courts Act of 1979 came into force and by virtue of a declaration made under s. 7 of the said Act., the appeals stood transferred to this Court and were placed for hearing before us. As the learned Sessions Judge has given all the necessary details of the prosecution case against the appellants, it is not necessary for us to give all the facts bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahata. was directed to deposit the positive print of the film comprising 14 reels of 35 mm with the Films Division Auditorium, situate at 1, Mahadev Road, New Delhi (hereinafter to be referred to as the 'Auditorium'). In pursuance of these directions, PW 1 deposited . the positive print and an entry thereof Was made by the Librarian-cum- Projectionist of the Auditorium which is Ext. PW 17/A. PW 17 K.P. Sreedharan, who was a Technical Officer Incharge also inspected the reels and found them in order. Although Murshed, PW 6, after seeing the film agreed with the opinion of the Chairman of the Board that film may be open to objection on the ground that it was full of sarcasm and contained criticism of the political functioning of the government machinery yet he was personally of the opinion that certification for exhibition should not be refused. The witness accordingly recorded a note and submitted it to Mr. A. J. Kidwai, the then Secretary, Ministry of information and Broadcasting. The matter was then examined by Mr. I.K. Gujaral, the then Minister of Information Broadcasting but no final decision was taken. Meanwhile, PW 1, Amrit Nahata filed a writ petition in this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Central Government, PW 39, S. Ghose, Deputy Secretary, Incharge of the Films Division, wrote a letter to the Chief Secretary, Government of Maharashtra for seizure of all the positives and negatives of the film as also other related materials. In pursuance of this order, the Bombay police seized the entire film on 1-8-1975 and deposited the same in the godown of the Board. As, however, a final order had been passed by the Government banning the film, PW 1, Amrit Nahata, filed a petition for special leave in the Supreme Court on 6-9-1975. This petition was heard on 29-10-75 and this Court directed the Government to screen the film on 17-11-1975 in the Auditorium for being shown to the Judges constituting the Bench. In pursuance of the order of this Court, intimation was sent to the Ministry concerned and PW 62, Mr. S.M.H. Burney, who was then Secretary, Ministry of Information Broadcasting, directed that immediate action be taken to implement the orders of the Supreme Court, and that arrangements should be made to book the Auditorium for 17- 11-1975. By a letter dated 5-11-1975, Ext. PW 2/A-2, the Supreme Court was also informed regarding the steps taken which, accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any conspiracy. We are further of the opinion that even taking the main parts of the prosecution case at their face value, no connection has been proved with the destruction of the film and the two appellants. The prosecution has, of course, produced some witnesses to show the existence of the alleged conspiracy or some sort of connection of the appellants with the destruction, of the film but that evidence, as we shall show, falls short of the standard of proof required in a criminal case. We realise that the prosecution was seriously handicapped because the investigation started only after the Janata Government came into power in March 1977, that is to say, about a year and a half after the offences in question were allegedly committed, by when naturally much of the evidence would have been lost and even some of the important witnesses examined by the prosecution had turned hostile and refused to support its case. Despite these difficulties, the prosecution has to discharge its onus of providing the case against the accused beyond reasonable doubt. We, therefore, propose to deal only with that part of the evidence led by the prosecution which has been relied upon to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned PW 18, Bhawani Singh, PW 33, Babu Ram; PW 61, C.K. Sharma; PW 57, V.S. Tripathi, PW 60, R. L. Bandish and PW 39, Ghose. So far as PWs 39, 57, 60 and 61 are concerned, they did not support the prosecution case regarding the transfer of the prints to the custody of A-1 as alleged by the prosecution. So the only witnesses to prove the factum of transfer were PWs 17 and 33. The prosecution also examined some other witnesses PW 1, Amrit Nahata, PW 2, L. Dayal and PW 62, Burney to show that the transfer of the positives of the film to the custody of A-1 was carried out at the oral instruction of A-1. PW 62, however, did not support the prosecution and thus, on this point, the only witnesses worth considering are PWs 1 and 2. We would first refer to the evidence of PW 1, Amrit Nahata. He stated that he was directed to deposit the positive print of the Films to Films Division Auditorium at Mahadev Road and consequently he complied with the direction on 17-5-1975, and obtained a receipt. The witness goes on to state that one of the factors which weighed with him in withdrawing the writ petition he had filed in the Supreme Court was that he was persuaded and pressurised and threatened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the work would be done by a respectable officer. The witness further states that PW 57, V. S. Tripathi, was also present at the time when this conversation between the witness and A-1 took place. He further states that he had apprised PW 62, Burney, the Secretary, of the talk he had with A-1. Both PW 57 and PW 62 have not supported the witness on these points and have denied the same. The witness had also stated that he had called PW 39, Ghose and apprised him of the instructions of the Minister for carefully and confidentially putting all material in the personal custody of the Minister. Ghose, however, in his evidence does not support the story of instructions by the Minister and denies having been told anything of the kind by the witness. Of course, all The three witnesses, namely, Tripathi. Burney and Ghose, had been declared hostile. The witness further goes on to state that he had called PW 4, Khandpur, who happened to be in Delhi and had told him that all the film material pertaining to the film 'Kissa Kursi Kaa' Lying at Bombay had to be carefully and confidentially collected and sent to Delhi. PW 4, however, clearly admits in his evidence that the instruction wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken away the film. In this connection, the witness deposed as follows:- Q. You did not tell Shri Narayanan that S. Ghose had come to you in his car and you had delivered the film to him in his car and he had taken it away? Ans. No. I did not tell him like this (Voltd:-It was so as S. Ghose had asked me to say differently to Shri Narayanan and I stated as advised by S. Ghose.) Q. You know that enquiry had been ordered by Shri L. K. Advani, Minister for Information Broadcasting ? Ans. Yes. Q. And yet you deliberately told a lie before Shri Narayanan? Ans. Yes, because of S. Ghose. Thus, the witness admitted that he spoke a lie before Narayanan merely because of Ghose. Further, even in his statement before the police, the witness did not state that Ghose had come to him for taking away the film on the same day, i.e., the day on which Ghose had telephoned that he would be coming to take the film. So far as PW 39, Ghose is concerned, he has totally denied having told the witness to keep the positive prints ready or that he ever took delivery of the prints from the witness and put the same in his car. Thus, even the prosecution case relating to the transfer of the positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer of the film has, been established. Thus, the prosecution has failed to prove that the positive prints of the film were transferred from the Auditorium to the personal custody of A-1 or that the said transfer was done in accordance with his instruction or to his knowledge. (2) The transfer of negatives and other material related to the film from Bombay to Delhi and to 1, Safdarjung Road and from there to Maruti Complex at the order of A-1 So far as this part of the prosecution case Is concerned, the evidence is wholly insufficient to attribute any knowledge or ulterior motive tn A-1 in directing the negatives to be sent from Bombay to Delhi. Some evidence has no doubt been adduced be the prosecution to show some amount of criminality on the part of A-1 but that evidence, as we shall show, is not very reliable. To begin with, according to PW 6, Murshed, A-1 said that there was some sort of an informal discussion between A-1, Mr. A. J. Kidwai, the then Secretary in the Ministry of Information Broadcasting and the witness when A-1 directed that the film be banned and seized, but that no action was taken by the witness until the file reached him. The witness added that on J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal custody, that detailed arrangements for the delivery of the material would be made by A-1's personal staff and that the work had to be done by a responsible officer. The witness adds that he conveyed the decision to the Secretary and to S. Ghose, PW 39, and then called PW 4, Khandpur, Chief Producer, Films Division, Bombay who happened to be in Delhi and asked him that all the material pertaining to the film 'Kissa Kursi Kaa' lying at Bombay had to be carefully and confidentially collected and sent to Delhi. At the time when this talk took place Ghose and Tripathi were present, according to PW 2, who then rang up Vyas (Chairman of the Board) and gave him similar instructions in the presence of Ghose and Tripathi. However, neither Tripathi nor Ghose supports PW 2 on the point that he had asked Khandpur to collect the. material of the film 'carefully and confidentially which particular words were attributed to A-1 to show his criminal intent. In this connection, Ghose, PW 39, who was declared hostile to the prosecution, stated: As I was coming out of the room of Shri Burney, I dropped in Shri Dayal's room which was in the same corridor with a view to info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of I B, gave instructions to Shri L. Dayal, Jt. Secy. (Information) in my presence that he wanted the positives negatives etc. of the film, Kissa Kursi Kaa to be handed over to him, in his custody immediately confidentially. The Minister also said that the arrangements for transportation will be made by him and Shri Dayal should get in touch with the personal staff for this. The witness also denied the correctness of the assertion that in his presence later on Shri Dayal, PW 2,1 had told Shri Khandpur, PW 4 that the film should be brought from Bombay to Delhi very carefully without telling anybody about it . He was confronted with portion 'F to F' of his said statement to the police where the assertion appears. Even Khandpur, PW 4, who has fully supported the prosecution has not said anything in his evidence to indicate that PW2 had said that the materials should be 'carefully and confidentially collected and sent to Delhi. On the other hand, PW 4 says thus:- I was called by L. Dayal, the Joint Secretary in his office. I was asked to make arrangements for collecting all material pertaining to film Kissa Kursi Kaa available at Bombay and to send th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to receive the same. It is not disputed that Tripathi was not known to PW S, Kane, before the 10th and that by the time the witness saw him at the New Delhi Railway Station he had seen him only once in Bombay. The witness doles state that his pointed attention was drawn to Tripathi because he had asked him to settle the payment of charges to the coolies and that but for this his attention would not have been drawn to Tripathi. He, however, admits that he his statement before the Central Bureau of Investigation, he did not mention the fact that Tripathi had asked him to settle the matter of the payment of charges to the coolies. Thus, the existence of the only circumstance on the basis of which the witness could have identified Tripathi becomes doubtful and in view of the categorical statement of Tripathi that he never went to New Delhi Railway Station on the 10th of November to receive the film, it is difficult to accept the evidence of PW 5 that Tripathi was the person present at the station. The possibility that the witness committed some mistake in identifying cannot be ruled out. Moreover, the identification of Tripathi by the witness for the first Lime in the court without be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, and that is a stand which comes into direct conflict with the testimony of the witness in court in which the entire blame is shifted to A-l but which again runs counter to are assertion made earlier by the witness in his own hand. That assertion appears in the form of an amendment to a draft of a letter (Ext. PW 2/DE) to be sent to Mr. V. P. Raman. Additional Solicitor General and reads: in spite of efforts the film has not been found'. The witness admits clearly that this statement was false to his knowledge. A witness who could go to the extent of making intentionally false statement cannot be relied upon for the purpose of convicting the appellant. On his own showing, he was fully collaborating with A-1 in a criminal design and was therefore, no better than an accomplice whose testimony cannot be accepted in any material particular in the absence. Of corroboration from reliable sources. Even Mr. Jethmalani, the erstwhile senior counsel for the prosecution conceded the correctness of this proposition. On an appreciation of the evidence of PW 2 and other factors, discussed above, his evidence has-not only not been corroborated but definitely contradicted by other witnesses, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n obtaining the advice himself. And then how was PW 63 selected as a Specialist in the concerned branch of law over the head of superior officers, even if it was considered hazardous to enlist the services of a competent lawyer ? We are, therefore unable to place reliance on the evidence of this witness on this point. From a discussion of the circumstances mentioned above, we conclude that the prosecution has failed to prove that the film materials brought from Bombay to Delhi were placed in the personal custody of A-1 or that A-1 had them transferred to No. l, Safdarjung Road or to the Maruti Complex. Another link in the chain of prosecution evidence (the existence of which seems to have been accepted by the learned Sessions Judge) was that two tempos belonging to the Maruti (Company were sent to the New Delhi Railway Station where the thirteen trunks which arrived by the Western Express were loaded therein and were taken to l, Safdarjung Road before being transported to Maruti Complex where they were unloaded? kept and later on. destroyed. It was also alleged by the prosecution. that a raid of the Maruti Complex carried out in 1977 A led to the recovery of the lid of a trunk, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he thirteen boxes containing the film material. The boxes were opened with the keys which were taken out of the sealed packet mentioned earlier. Each box was found to contain 10 or 12 cans having film spools inside them. Each can bore a label with the legend 'Kissa Kursi Kaa'. The first lot of the films was removed to a nearby pit and was burnt there, the operation lasting from 10.30 p.m. to 2.30 p.m. watchman Om Parkash PW 31 however left the place at about 11.00 p.m. because he felt giddy. (c) Next morning the approver reported to A-2 that the work had been carried out in part only and that it would be completed on the night following, which was done from 10.00 p.m. to, 2.00 a.m. (d) Next morning the approver again made a report to A-2 telling him that the job had been completed. Learned counsel for the defence contended that the stand taken by the approver could not be accepted at its, face value and had to be rejected lock stock and barrel. On a thorough consideration of the evidence we find that the contention well-based as we shall presently show. The film material, according to the case of the prosecution, is said to have reached Maruti Complex on the 10t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, is categorical in this behalf and is supported by the passenger manifests (Ext. DW-3/A and DW- 5/A) prepared in relation to the journeys which contain the name of A-2, and other documents which need not be mentioned here. We regard his testimony as conclusive as was done not only by the learned Sessions Judge but also by the Special Public Prosecutor who made a statement at the trial that testimony be accepted by the prosecution in toto. In this view of the matter the prosecution has to prove that a period of four days in between the 14th and the 18th of November 1975, was such as A-2 was available in Delhi during day time on the first, third and fourth of such days. Now, as pointed out already, the burning could have taken place only on the 15th or the 18th of November 1975, if the approver and the duty rosters prepared by him are to be believed. The 18th of November 1975, has to be excluded for the reason that on the two days following A-2 had to be shown to have been in Delhi (for receiving the report about the destruction of the material from the approver) which he definitely was not. The 15th of November 1975, as the first night of the burning operation also does not cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the trunks and their removal was performed by my Asstt. Kanwar Singh Yadav and he told me about that. Kanwar Singh Yadav told me that Sanjay Gandhi had asked him to scrap the trunks and cans and to dispose them off. He told me that he cut the trunks into pieces and threw them into the iron scraps which were sold to different contractors. As regards the cans, he told me that he had damaged the cans and thrown them at different places on Rajasthan Highway and Rajasthan Bye- pass....He told me that the trunks had been cut into pieces and cans had been damaged in the Press Shop. This story is inherently improbable. The thirteen trunks which admittedly had no marks of identification on them and were of the ordinary type available in any market are said to have been shredded and the locks-which again are available in plenty everywhere-are alleged to have been melted in the foundry but, strangely enough, the cans which had on them labels carrying the legend 'Kissa Kursi Kaa' were subjected to a much milder treatment and were merely pressed and then thrown away at various places on the Rajasthan Highway and Rajasthan Bypass to which Kanwar Singh Yadav, PW 32 had to make jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d testimony of the approver and is negatived in so far as the role therein of A-l is concerned. We may mention here that a lot of evidence has been produced by the prosecution to show:- (a) that the positive print of the film found its way into the luggage compartment of the car in which A-1 then travelled to the Prime Minister's house where the print was unloaded by someone in the absence of A-1; and (b) that the negatives and other material relating to the film were taken in a tempo or two to the Prime Minister's residence and from there to the Maruti Complex where they were stored before their destruction. We have considered it purposeless to go into these factors for the reasons that the connection of A-1 or A-2 therewith remains unproved as discussed above. Had these factors provided circumstantial evidence oh the basis of which alone the charge against either A-1 or A-2 could be held established it would have been necessary for the court to sift the evidence produced in support thereof. But that is definitely not the case, for, if either or both of the factors are proved, the inference of guilt of either A-l or A-2 does not necessarily follow. For circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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