TMI Blog1954 (4) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... f the District Magistrate. The Government of Bengal sanctioned four lacks of rupees as advance to the District Board for such test relief operations. The District Board, however, instead of conducting the relief work directly, appointed several agents on commission basis through whom set test relief operations were carried out. This was in clear violation of the Bengal Famine Code and the Famine Manual, 1941, and as exceedingly large sums were being spent the suspicions of the Government were aroused about the bona fides of the test relief work carried out through their agents. This led to an inquiry and as a result of this several cases were started against various persons and the appellant's case in one of them. 3. The Government reached the decision that these cases were not fit for trial by jury and accordingly on 24th February, 1947, a notification was issued for trial of these cases by the Court of Sessions with the aid of assessors. The notification is in these terms :- No. 4591 - 17th February, 1947. - Whereas by a notification dated the 27th March 1893, published in the Calcutta Gazette of the same date, it was ordered that on the after the 1st day of April, 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of payment. It was alleged that the appellant put his own thumb impressions in several cases mentioned in the charges with full knowledge that no payment had been made and put names of imaginary persons against the thumb impressions to make it appear that payments had been made to real person and by this process had obtained wrongful gain for himself and for his employers. 5. The appellant's plea in defence was that the thumb impressions were not his and alternatively if the thumb impressions were his, he put them on the authority of persons whose names were shown against the thumb impressions and that in putting these thumb impressions he did not act dishonestly or fraudulently. 6. The learned Additional Sessions Judge acquitted the appellant and all other accused persons on the charge of conspiracy to cheat under section 420 read with section 120B, Indian Penal Code. He, however, convicted the appellant under eleven specific charges of forgery under section 467, Indian Penal Code, and sentenced him to undergo rigorous imprisonment for a period of one year. On appeal the conviction of the appellant was affirmed in regard to nine counts only and the sentence was redu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that section. Secondly it was urged that the notification denied the appellant equal protection of the laws and was thus an abridgement of his fundamental right under article 14 of the Constitution and the view of the High Court that the classification was not arbitrary or evasive was incorrect. 10. At this stage it may be mentioned that the Union Government, at its request, was allowed to intervene in this appeal, in view of the contention raised by the appellant that section 269(1) of the Code of Criminal Procedure was void by reason of its being inconsistent with the provisions of Part III of the Constitution. The intervention, however, became unnecessary because the learned counsel for the appellant abandoned this point at the hearing and did not argue it before us. 11. As regards the two points urged by the learned counsel, it seems to us that both the contentions raised are well founded. The notification, in our opinion, travels beyond the ambit of section 269(1) of the Code of Criminal Procedure. This section is in these terms :- The State Government may by order in the Official Gazette, direct that the trial of all offences, or of any particular class of offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i and was endorsed by some of us in this Court in The State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284, 326). It was there point out that a jury trial could not be revoked in respect of a particular case or a particular accused while in respect of other cases involving the same offences that order still remained in force. 13. The notification in this case clearly refers to accused person involved in the Burdwan Test Relief Fraud cases and does not remove from the category of offences made triable by jury offences under sections 120B, 467, 468, 477 etc., no matter by whom committed or even committed within a particular area. The cases of persons other than the accused and involved in offences under sections 120B, 420, 467, 468, 477 are still triable by a Court of Session by jury. 14. The language of the earlier notification of 1893, and of the second notification of 1939, by which it was directed that the trial in Court of Session of certain offences in certain districts shall be by jury is significant and is in sharp contrast to the language used in the operative portion of the impugned notification. By the notification of the 27th March, 1893, it was ordered that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every law must have universal application to all persons who are not by nature, attainment or circumstances, in the same position, and that by process of classification the State has power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject; but the classification, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. The notification, in express terms, has not indicated the grounds on which this set of case has been segregated from other set of cases falling under the same sections of the Indian Penal Code. The learned Judges of the High Court however thought that this set of cases was put into one class because of their having the common features that a mass of evidence regarding the genuineness of thumb impressions and regarding the existence or otherwise of persons required consideration and this was bound to take such a long time that it would be very difficult, if not impossible, for a juror to keep proper measure of the evidence. In our opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification with reference to these cases. Moreover the nature of the objection is such that it goes to the very root of the jurisdiction of the Court, and such an objection can be taken notice of at any stage. Mr. Sen placed reliance on a Bench decision of the Madras High Court in Queen-Empress v. Ganapathi Vannianar and Others I.L.R. 23 Mad. 632. The matter there was not considered from the point of view mentioned above and we do not think that that case was correctly decided. 18. Mr. Sen further argued that in any case the notification in this case was issued in February, 1947, three years before the Constitution came into force, and that though the trial had not concluded before the coming into force of the Constitution, the trial that had started by the Court of Session with the help of assessors was a good trial and it cannot be said that it was vitiated in any manner. Now it is obvious that if the assessors here were in the statues of jurors and gave the verdict of not guilty as they did in this case, the accused would have been acquitted unless there were reasons for the Sessions Judge to make a reference to the High Court to quash the trial. Clearly therefore the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that it was not possible for the Special Court to avoid the discriminatory procedure after the 26th January, 1950. Therefore the trial was bad. In view of these observations, it is not possible to accept this part of Mr. Sen's contention. 20. Mr. Sen in his quiet manner faintly suggested that in view of the decision of this Court in Kathi Raning Rawat v. The State of Saurashtra [1952] S.C.R. 435 and Kedar Nath Bajoria v. The State of West Bengal [1954] S.C.R. 30, the decision of this Court in Anwar Ali Sarkar's case [1952] S.C.R. 284, in which it was pointed out that the State Government could not pick out a particular cases and send it to Special Court for trial, had lost much of its force. It seems to us that this suggestion is based on a wrong assumption that there is any real conflict between the decision in Anwar Ali Sarkar's case [1952] S.C.R. 284 and the decision in the Saurashtra case [1952] S.C.R. 435 or in the case of Kedar Nath Bajoria [1954] S.C.R. 30. It has been clearly pointed out by this Court in Kedar Nath Bajoria's case that whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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