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TMI Blog1953 (5) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengal, and the second appellant was the Area Land Hiring and Disposals Officer in the service of the Government of India. Some of the godowns belonging to the company were requisitioned by the Government for military purposes in 1943 and were released in December, 1945. The appellants, along with two others who were given the benefit of doubt and acquitted, were charged, with having conspired to cheat, and having cheated, the Government by inducing their officers to pay ₹ 47,550 to the first appellant on behalf of the company as compensation for alleged damage to the godowns on the basis of an assessment made by the second appellant which was false to the knowledge of both the appellants. It was also alleged that the second appellant recommended the payment of ₹ 1,28,125 to the company for damage caused to the jute stored in the godowns by leakage of rain-water through cracks in the roof which the military authorities neglected to repair. This claim, however, had not been paid as the second appellant's recommendation was not accepted by the higher authorities who referred it to the Claims Commission for investigation. The appellants were accordingly charged with havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for seven years, with the result that the trial which was held in Calcutta would have been by jury in the High Court had the ordinary procedure been followed. Though the trial by the Special Court began before the commencement of the Constitution, its continuance without a jury after the Constitution came into force vitiated the whole trial, as it would riot be possible to introduce the jury at any subsequent stage. In support of this view he relied on certain observations in the majority judgment of this court in Qasim Razvi's case([1952] S.C.R. 589.). These observations were made by way of explaining the majority decision in Lachmandas Kewalram Ahuja's case([1952] S.C.R. 710.) where it was held that proceedings taken prior to the commencement of the Constitution before a Special Court constituted under section 12 of the Bombay Public Safety Act, which was in the same terms as section 5(1) of the West Bengal Act, remained unaffected by the Constitution, though the special procedure provided by the Act was held to be discriminatory following Anwar Ali Sarkar's case([1952] S.C.R. 284.). On the other hand, the Solicitor General on behalf of the Government maintained that the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of offences without the accused being committed to their court for trial and are required to follow the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases. The Special Judges may, for reasons to be recorded, refuse to summon any witness, if satisfied after examination of the accused, that the evidence of such witness will not be material and shall not be bound to adjourn any trial for any purpose unless such adjournment is, in their opinion, necessary in the interests of justice. Except as aforesaid the provisions of the Code are made applicable so far as they are not inconsistent with the Act, and for the purposes of the said provisions the Special Court is to be deemed to be a court of session trying cases without a jury and without the aid of assessors. By section 6 the High Court is given all the powers conferred on a High Court by Chapters XXXI and XXXII of the Code as if the court of the Special Judge were a court of session. Section 7 bars the transfer of any case from a Special Judge, and section 8 lays down certain special rules of evidence to- be applied in the trial of offences specified in the schedule. Section 9 enacts certain specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all-embracing in its scope, no question could arise of classification being based on intelligible differentia having a reasonable relation to the legislative purpose. The real issue, therefore, is whether having regard to the underlying purpose and policy of the Act as disclosed by its title, preamble and provisions as summarised above, the classification of the offences, for the trial of which the Special Court is set up and a special proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as devised, and it seems to us that the legislation in question is based on a perfectly intelligible principle of classification having a clear and reasonable relation to the object sought to be attained. Mr. Chatterjee argues that the offences listed in the schedule do not necessarily involve the accrual of any pecuniary gain to the offender or the acquisition of other property by him or any loss to any Government, and that the classification cannot, therefore, be said to be based on that consideration. Counsel referred in particular to the offences included in the fifth paragraph, namely, forgery, making and possessing counterfeit seals, falsification of accounts, etc., as instances in point. It may, however, be observed that section 9(1), which makes it obligatory on the Special Court to impose on persons tried and convicted by it an additional compensatory fine of the kind mentioned above, indicates that only those offences, which, either by themselves or in combination with others mentioned in the schedule, are suspected to have resulted in such pecuniary gain or other advantage and, therefore, to merit the compensatory fine, are to be allotted to a Special Court for trial. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to persons or things within the, defined group, while laying down the standards or at least indicating in clear terms the underlying policy and purpose, in accordance with, and in fulfilment of, which the administrative authority is expected to select the persons or things to be brought under the operation of the law. A familiar example of this type of legislation is the Preventive Detention Act, 1950, which, having indicated in what classes of cases and for what purposes preventive detention can be ordered, vests in the executive authority a discretionary power to select particular persons to be brought under the law. Another instance in point is furnished by those provisions of the Criminal Procedure Code which provide immunity from prosecution without sanction of the Government for offences by public servants in relation to their official acts, the policy of the law being that public officials should not be unduly harrassed by private prosecution unless in the opinion of the Government, there were reasonable grounds for prosecuting the public servant which accordingly should condition the grant of sanction. It is not, therefore, correct to say that section 4 of the Act offends a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for making the enactment. In a sense quick disposal is a thing which is desirable in all legal proceedings...... This is not a reasonable classification at all but an arbitrary selection" (page 328). Similar observations are to be found in the judgments of Das and Chandrasekhara Aiyar JJ. at pages 328 and 352 respectively. It will be seen that the main reasoning of the majority judges in Anwar Ali Sarkar's case ([1952] S.C.R. 284.) as disclosed in the passages extracted above is hardly applicable to the statute here in question which is based on a classification which, in the context of the abnormal post-war economic and social conditions is readily intelligible and obviously calculated to subserve the legislative purpose. The case, in our opinion, falls on the same side of the line as the Saurashtra ruling([1952] S.C.R. 284.) where Anwar Ali Sarkar's case ([1952] S.C.R. 284.) was distinguished by three of the learned Judges who were parties to the majority decision in the earlier case. Fazl Ali J. observed: " There is however one very important difference between the West Bengal Act and the present Ordinance which, in my opinion, does afford such justification (for up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will not necessarily be condemned as discriminatory, because it does not make the classification itself but, as an effective way of carrying out its policy, vests the authority to do it in certain officers or administrative bodies." (Page 459)........... In my opinion, if the legislative policy is clear and definite and, as an effective method 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............... In such cases the power given to the executive body would import a duty on it to classify the subject-matter 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 discretion is given, and it is in relation to that objective that the propriety of the classification would have to be tested." (Page 460). Das J. no doubt laid stress on the fact that alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 952] S.C.R. 435.) marked a retreat from the position taken up by the majority in the earlier case of Anwar Ali Sarkar( (1952] S.C.R. 284.). However that may be, the majority decision in the Saurashtra case([1952] S.C.R. 435.) would seem to lay down the principle that if the impugned legislation 'indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary and, therefore, obnoxious to article 14. In the case of such a statute it could make no difference in principle whether the discretion which is entrusted to the executive Government is to make a selection of individual cases or of offences, classes of offences or classes of cases. For, in either case, the discretion to make the selection is a guided and controlled discretion and not an absolute or unfettered one and is equally liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. For all these reasons we hold that section 4 of the Act, under which the appellants' case was allotted by the State Government to the Special Court at Alipur is constitutionally valid, and the Special Court had jurisdiction to try and convict the appellants. As regards the fine of ₹ 50,000, inflicted on the first appellant, Mr. Chatterjee objected that it could not stand to the extent of ₹ 47,550 found to have been received by the first appellant by the commission of the offence, as it is in contravention of article 20 of the Constitution which provides, inter alia, that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The offences for which the first appellant has been convicted were all committed in 1947, whereas the Act which authorised the imposition of the additional punishment by way of fine equivalent to the amount of money or value of other property found to have been procured by the offender by means of the offence came into force in June, 1949. Mr. Chatterjee urged that article 20 on its true construction prohibits the imposition of such fine ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Habeeb Mahamed's case([1953] S.C.R. 561.) and Qasim Razvi's case([1953] S.C.R. 589,), where the previous decisions of this court have been examined and explained, that the continuation of the trial after the Constitution can only be impugned if the procedure followed after that date was substantially discriminatory. In my opinion it was in this case in at least one vital particular. Had the normal procedure been followed the appellants would have had a jury trial in the High Court at Calcutta. In Qasim Razvi's case([1953] S.C.R. 589,), the majority dealt with the matter thus: "We may mention here that the impossibility of giving the accused the substance of a trial according to normal procedure at the subsequent stage may arise not only from the fact that the discriminatory provisions were not severable from the rest of the Act and the court consequently had no option to continue any other than the discriminatory procedure; or it may arise from something done at the previous stage which though not invalid at that time precludes the adoption of a different procedure subsequently. Thus, if the normal procedure is trial by jury or with the aid of assessors, and as a matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so long as there is, in my opinion, scope still left for a divergence of view. In my opinion, the West Bengal legislature could not, and indeed Parliament itself could not, have selected case A and case B and case C and accused X and Y and Z and sent them to the Special Courts for trial leaving others, similarly placed in the same class, for trial by the ordinary courts of the land; and what the legislature itself could not do cannot be done by a delegated authority. Having made a classification, having given reasons for it, the legislature could not, in my judgment, without assigning reasons for a sub classification, arbitrarily select A, B and C and set them as a class apart in the classification already made. It is, in my view, as objectionable to make an arbitrary sub-classification out of a good classification as it is to make an arbitrary classification in the first instance; and to pick out A, B and C from an already classified class and set them apart for special treatment is nothing more nor less than a fresh classification. If it is not arbitrary; if it falls within the rules laid down in our previous decisions: good. If it does not: then bad. I am clear on the streng ..... X X X X Extracts X X X X X X X X Extracts X X X X
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