TMI Blog1959 (12) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuance of the said movement. It was further alleged that the leaders of said movement including the appellants preached murder and arson amongst the cultivators and that such preaching and propaganda were followed by arson and murders on a large scale. It was on these allegations that a charge-sheet was submitted against the appellants and the case against them taken up for trial before the Third Tribunal at Alipore constituted under the Act. Ninetynine witnesses were examined by the prosecution in support of its case and the tribunal framed charges against the appellants under the three sections already mentioned by its order dated May 16, 1958. The offences in question are alleged to have been committed during the period beginning from January 1, 1948, and ending on March 31, 1950, within Kakdwip and Sagaour police stations. By their Criminal Revision Application No. 640 of 1958 the appellants challenged the validity of the proceedings before the tribunal and applied for quashing the said proceedings and the charges framed against them under s. 439 of the Code of Criminal Procedure as well as Art. 227 of the Constitution in the Calcutta High Court. Their application was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 30, 1952. Section 12 of the Act purports to repeal the earlier Act of 1950 in conformity with the decision of this Court in Anwar Ali Sarkar s case ([1952] S.C.R. 284). The argument is that by passing the Act the West Bengal Government has attempted to achieve the same result which it intended to achieve by s. 5(1) of the earlier Act, and so, according to the appellants, in substance the decision of this Court in Anwar Ali Sarkar s case([1952] S.C.R. 284) should govern the decision of the present appeal. In any case it is urged that the sequence of events which supply the background to the present Act should carefully be borne in mind in dealing with the merits of the points raised by the appellants. The challenge to the vires of the impugned provisions is based on the ground that they violate the fundamental right guaranteed by Art. 14 of the Constitution. The scope and effect of the provisions of Art. 14 have been considered by this Court on several occasions, and the matter has been clarified beyond all doubt. The equality before law which is guaranteed by Art. 14 no doubt prohibits class legislation but it does not prohibit the Legislature from legislating on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave ceased; and an area where the disturbance is taking place at the time of the notification. In respect of the first category of disturbed areas the notification has to specify the period covered by the previous disturbance, and it is the specified offences which had taken place during the said period that fall within the mischief of the Act. In the case of the notification issued in respect of areas where disturbances are taking place the notification has effect from such date as it may specify and it will continue to be in operation until it is revoked. Section 2(d) defines a scheduled offence as any offence specified in the schedule and s. 2(e) defines a tribunal as meaning a tribunal of Criminal Jurisdiction constituted under sub-s. (1) of s. 3. The scheduled offences are specified in four items. Item 1 deals with offences against the State prescribed by ch. 6 of the Indian Penal Code. Item 2 deals with some of the offences against human body and property covered by ch. 16 and ch. 17 of the Code. Item 3 refers to some of the said offences if they are committed in the course of a raid on or a riot in a factory or a mill or a workshop or a bank or in relation to transportation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational nexus with the policy of the Act and the object which it intends to achieve. The preamble shows that the Legislature was dealing with the problem raised by disturbances which had thrown a challenge to the security of the State and raised a grave issue about the maintenance of public peace and tranquillity and the safeguarding of industry and business. It, therefore, decided to meet the situation by providing for speedy trial of the scheduled offences. Thus the object of the Act and the principles underlying it are not in doubt. It is true that speedy trial of all criminal offences is desirable; but there would be no difficulty in appreciating the anxiety of the Legislature to provide for a special procedure for trying the scheduled offences so as to avoid all possible delay which may be involved if the normal procedure of the Code was adopted. If the disturbance facing the areas in the State had to be controlled and the mischief apprehended had to be Checked and rooted out a very speedy trial of the offences committed was obviously indicated. The classification of offenders who are reached by the Act is obviously reasonable. The offences specified in the four items in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr. Acharya in the present appeal. Before dealing with these two arguments it would be relevant to recall that this Court has accepted the general principle that if any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed (Vide: Chiranjitlal Chaudhuri v. The Union of India Ors. ([1950] S.C.R. 869 at p. 877) and Kedar Nath Bajoria v. The State of West Bengal ([1954] S.C. R. 30 at P. 39). It is quite true that when a notification is issued under s. 2(b)(i) specifying the period during which the area in question was disturbed some offences though falling under the schedule might have been tried under the Code while some others which may be pending at the date of the notification would be tried under the Act. But does that introduce any vice in the classification ? If the area was disturbed and the notification specifying the period of such disturbance is otherwise justified in the sense that the speedy trial of the seheduled offences committed during the specified period can be validly directed, then the fact that some offences had already been tried before the notification cannot, in our opinion, int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent categories and the contention that the classification of the offences made in such a case is irrational must, therefore, be rejected. The argument that some limitation of time should have been prescribed within which the notification should be issued declaring such areas to be disturbed ignores the fact that prescription of such limitation may in some cases defeat the purpose of the Act itself. If the offenders abscond or go underground, as in the present case appellant 1 did, how can any period of limitation be prescribed beyond which the power to issue notification cannot be exercised ? In issuing such notification several relevant factors pertaining to the local situation in the area have to be taken into account; and so failure to prescribe any limitation cannot introduce any infirmity in the provision. It is conceivable that the notification issued under s. 2(b)(i) may be colourable or mala fide but in such a case it is the validity of the notification which can be successfully challenged, not the vires of the statute under which it is issued. The colourable or mala fide exercise of the power in issuing a notification would undoubtedly affect the validity of the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eamble to the Act had merely stated that it was expedient to provide for the speedy trial of certain offences, and s. 5(1) had empowered a special court to try such offences or classes of offences or cases or classes of cages as the State Government may by- general or special order in writing direct. According to the majority decision the preamble to the Act was vague and gave no indication about them principles underlying it or the object which it intended to achieve; and it was also held that s 5(1) vested an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried by the special court. It was observed that the necessity of a speedier trial mentioned in the preamble was too vague, uncertain and elusive a criterion to form a rational basis for the discrimination made, and that it was unreasonable to have left to the absolute and unfettered discretion of the executive government with nothing in the law to guide or to control its action to decide which cases or classes of cases should be tried under the Act. There were, however, two dissents. Patanjali Sastri, C.J. held that s. 5(1) was wholly valid, where, Das, J., as he then was, agreed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntravened Art. 14 and was void under Art. 13 on the principles laid down in the two earlier decisions to which we have just referred. Patanjali Sastri, C. J., struck a note of dissent. He adhered to the view which he had expressed in Anwar Ali Sarkar s case ([1952] S.C.R. 284) and held that the impugned provision was valid. The decision in the case of Ahuja ([1952] S.C.R. 710) proceeded on the basis that the discrimination which may have been permissible before January 26, 1950, could not be sustained after the said date because it violated Art. 14 of the Constitution. Having regard to the objects which the act intended to achieve and the principles underlying it, it was held that the said object and principles applied equally to both categories of cases, those which were referred to the special judge and those which were not so referred; and so the discrimination made between the two categories of cases which could not be rationally put under two different classes was violative of Art. 14. Thus the application of the same tests this time resulted in striking down the impugned provision and the notification. In 1953 a similar problem was posed before this Court for its decision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fety Act 5 of 1949. The provisions of this section authorised the State Government to apply the prescribed summons procedure for the trial of the specified offences in dangerously disturbed areas. The notification issued by the State Government under authority conferred on it by the impugned Act was challenged as offending Art. 14 but this challenge was repelled and the statutory provision and the notification were held to be valid. The result of these decisions appears to be this. In considering the validity of the impugned statute on the ground that it violates Art. 14 it would first be necessary to ascertain the policy underlying the statute and the object intended to be achieved by it. In this process the preamble to the Act and its material provisions can and must be considered. Having thus ascertained the policy and the object of the Act the court should apply the dual test in examining its validity: Is the classification rational and based on intelligible differentia; and has the basis of differentiation any rational nexus with its avowed policy and object ? If both these tests are satisfied the statute must be held to be valid. and in such a case the consideration as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein, and in cases falling under clause (ii) the notification shall have effect from such date as may be specified in the notification until the notification is revoked; (c).................................... (d) Scheduled offence means any offence specified in the Schedule. (e) Tribunal means a Tribunal of Criminal Jurisdiction constituted under sub-section (1) of section 3. S. 4. (i) Scheduled offences shall be triable by the Tribunals only; SCHEDULE 1........................................ 2. An offence punishable under section 302, section 304, section 307, section 326, section 363, section 364, section 365, section 366, section 376, section 395, section 396, section 397, or section 436 of the Indian Penal Code, if committed in a disturbed area. 3.................................................. 4. Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1 to 3. The Act provides by some of the sections which need not be set out, a special procedure for trial under it. Thus the trial is to be without a jury even in case,% which are triable by a jury. Again, the Tribunal is to follow the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal hearing the case, framed a charge against them on May 16, 1958, under s. 120 B, read with ss. 302 and 436, of the Indian Penal Code. These offences are included in items Nos. 2 and 4 of the Schedule. On May 26, 1958, the appellants moved the High Court at Calcutta under art. 227 of the Constitution and s. 439 of the Code of Criminal Procedure for an order quashing the proceedings against them on certain grounds. I propose to deal in this judgment with one of these grounds only. It was said that s 2(b) of the Act in so far as it allowed the Government to declare an area in which there was disturbance in the past, to be a disturbed area, offends art. 14. of the Constitution as it then discriminates between persons who had committed the same -offences in that area within the specified period but whose trials had been concluded before the notification and others similarly situated but whose trials had not been so concluded. It was said that the former class of persons had the advantage of the normal procedure while the latter, in whom the appellants are included, were to tried by a less advantageous procedure. The application of the appellants was heard by a bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of that article. It is not necessary therefore to consider whether the Act is prospective or retrospective or whether it concerns procedure or substantive rights. The general rule is that a law must apply to all persons. But it is permissible within certain well recognised limits, to validly legislate for a class of persons. The test for a valid classification is well known. It may be read from the judgment in the recent case of Sri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar [1959] S.C.R. 279. Das, C.J., said at p. 298: In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together, from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law. Again at p. 299 he observed: A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who have committed any of the specified offences in the area and during the period indicated. As will presently be seen, it does not apply to all such persons. This being a case, where there had been disturbances in the area in the past, the period mentioned in the declaration must be a period in the past. That is what happened in the present case. The declaration was made on September 12, 1952, and the period specified was from January 1, 1948, to March 31, 1950. It is possible in such a case that many of the persons who had committed the offences within the past period specified in the declaration, might have already been tried and their trials concluded before the declaration was made. They would in such circumstances have been tried according to the normal procedure provided by the Code of Criminal Procedure. To them the Act does not apply. Other persons, like the appellants who committed the same offences in the same period and in the same area but whose trials had not been concluded before the declaration was made, have to be tried under the disadvantageous procedure prescribed by the Act. The effect of the Act therefore is to group into one class, persons committing the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
