Budhan Choudhry and Other Vs. The
State of Bihar  INSC 114 (2 December 1954)
DAS, SUDHI RANJAN MAHAJAN, MEHAR CHAND (CJ)
BOSE, VIVIAN BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION: 1955 AIR 191 1955 SCR (1)1045
Constitution of India, Article 14-Code of
Criminal Procedure (Act V of 1898), section 30--Whether ultra vires the
Constitution-Article 14-Reasonable classification-Not forbidden-Test of
permissible classification-.Necessary conditions-Constitution- Whether 1046
assures unanimity of decisions or immunity from erroneous action of courts or
executive agencies of State.
It is well-settled that while Article 14 of
the Constitution forbids class legislation, it does not forbid reasonable
classification for the purposes of legislation. In order, however, to pass the
test of permissible classification two conditions must be fulfilled, namely,
(i) the classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out
of the group; and, (ii) that differentia must have a rational relation to the
object sought to be achieved by the statute in question.
The classification may be founded on
different bases; namely geographical, or according to objects or occupations or
the like. What is necessary is that there must be nexus between the basis of
classification and the object of the Act under consideration. Further Article
14 condemn,,; discrimination not only by a substantive law but also by a law of
The Constitution does not assure unanimity of
decisions or immunity from merely erroneous action, whether by the courts or
the executive agencies of a State.
Section 30 of the Code of Criminal Procedure
does not infringe the fundamental right guaranteed by Article 14 of the
Chiranjit Lal Chowdhuri v. The Union of India
(  S.C.R. 869), The State of Bombay v. F.N. Balsara ( S.C.R. 682),
The State of West Bengal v. Anwar Ali Sarkar- ( S.C.R. 284), Kathi Raning
Rawat v. The State of Saurashtra ( S.C.R. 435), Lachmandas Kewalram Ahuja
v. The State of Bombay ( S.C.R. 710), Qasim Razvi v. The State of
Hyderabad ( S.C.R. 581), Habeeb Mohamad v. The State of Hyderabad (
S.C.R. 661), The State of Punjab v. Ajaib Singh ( S.C.R. 254), Yick Wo v.
Peter Hopkins ( 118 U.S. 356; 29 L. Ed. 220) and Snowden v.Hughes (
321 U.S. 1; 88 L. Ed. 497), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 83 of 1953.
Appeal under article 132(1) of the
Constitution of India from the Judgment and Order dated the 25th August 1953 of
the High Court of Judicature at Patna in Criminal Appeal No. 410 of 1951.
B. K. Saran and M. M. Sinha, for the
M. C. Setalvad, Attorney-General for India
(R.C.prqsad, with him) for the respondent.
1047 1954. December 2. The Judgment of the
Court was delivered by DAS J.-This is an appeal from a judgment of the High
Court of Judicature at Patna which raises a substantial question of law as to
the interpretation of the Constitution of India.
The appeal arises out of a criminal trial
held in the district of Hazaribagh in the State of Bihar. The case against the
appellants was investigated by the local police and on the 4th June, 1951 a
challan was submitted before the Sub-Divisional Magistrate. The Sub-Divisional
Magistrate passed the following order in the orders beet:- "Let the record
be sent to the Dy. Commr., Hazaribagh for.
transferring it to the file of the Spl.
Magistrate for trial".
On the record being placed before the Deputy
Commissioner, the latter passed following order:- "Perused S.D.0's
order-sheet. Withdrawn and transferred to the file of Mr. S. F. Azam, Magte.
with powers u/s 30, Cr. P. C. for favour of disposal".
The appellants were then tried by Mr. S. F.
Azam, Magistrate of the first class exercising powers under section 30 of the
Code of Criminal Procedure on charges under sections 366 and 143 of the Indian
Penal Code and each of them was convicted under both the sections and sentenced
to rigorous imprison- ment for five years under section 366, Indian Penal Code,
no separate sentence having been passed under section 143.The appellants
preferred an appeal to the High Court of Judicature at Patna. The appeal was
heard by a Bench consisting of S. K. Das and C. P. Sinha, JJ. There was a
difference of opinion between the two learned Judges as to the
constitutionality of section 30 of the Code of Criminal Procedure. S. K. Das,
J., took the view that the impugned section did not bring about any
discrimination or inequality between persons similarly circumstanced and
consequently did not offend the equal protection clause of the Constitution,
while C. P. Sinha, J., was of the opinion that 1048 the section was hit by
article 14. The appeal was thereupon placed before Reuben, C. J., who in
agreement with S. K. Das, J., held that section 30 did not violate the
inhibition of article 14. The learned Chief Justice upheld the conviction but
reduced the sentence. On application by the appellants the High Court granted
them a certificate under article 132(1) and the present appeal has been filed
The learned Advocate appearing in support of
the appeal contends before us, as was done before the High Court, that there
had been an infraction of the fundamental rights guaranteed to the appellants
under article 14 of the Constitution of India. The complaint is that the
appellants had been tried by a section 30 Magistrate and not by a Court of
Session. A section 30 Magistrate is enjoined by that section to try the case
brought before him as a Magistrate and accordingly in cases like the present
case he will follow the warrant procedure which is different from the procedure
followed by a Court of Session. The substance of the grievance is that a trial
before the Sessions Judge is much more advantageous to the accused person in
that he gets the benefit of the commitment proceedings before a Magistrate and
then a trial before the Sessions Judge with the aid of the jury or assessors.
It has not been seriously questioned before us that in spite of the risk of
imposition of a punishment heavier than what a section 30 Magistrate can
inflict, a trial by a Sessions Judge is of greater advantage to the accused
than a trial before a Magistrate under the warrant procedure. We have,
therefore, to see whether this apparent discrimination offends against the
equal protection clause of our Constitution.
The provisions of article 14 of the Constitution
have come up for discussion before this Court in a number of cases., namely,
Chiranjit Lal Chowdhuri v. The Union of India(1), The State of Bombay v. F. N.
Balsara(2), The State of West Bengal v. Anwar Ali Sarkar(3), Kathi Raning Rawat
v. The State of Sau- (1)  S.C.R. 869. (2)  S.C.R. 682.
(3)  S.c. R. 284.
1049 rashtra(1), Lachmandas Kewalram Ahuja v.
The State of Bombay(2) and Qasim Razvi v. The State of Hyderabad(3) and Habeeb
Mohamad v. The State of Hyderabad(4). It is, therefore, not necessary to enter
upon any lengthy discussion as to the meaning, scope and effect of the article
in question. It is now well-established that while article 14 forbids class
legislation, it does not forbid reasonable classification for the purposes of
In order, however, to pass the test of
permissible classification two conditions must be fulfilled, namely, (i) that
the classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out
of the group and (ii) that differentia must have a rational relation to the
object sought to be achieved by the statute in question. The classification may
be founded on different bases; namely, geographical, or according to objects or
occupations or the like. What is necessary is that there must be a nexus
between the basis of classification and the object of the Act under
consideration. It is also well established by the decisions of this Court that
article 14 condemns discrimination not only by a substantive law but also by a
law of procedure. The contention now put forward as to the invalidity of the
trial of the appellants has, therefore to be tested in the light of the
principles so laid down in the decisions of this Court.
There are no less than four modes of trial
prescribed by the Code of Criminal Procedure, namely,(i) trial of sessions
cases, (ii) trial of warrant cases, (iii)summary trials and (iv) trials before
a High Court and a Court of Session and the procedure in each of these trials
is different. Section 28 of the Code of Criminal Procedure which is to be found
in Chapter III which deals with "Powers of Courts" reads as follows:-
"28. Subject to the other provisions of this Code, any offence under the
Indian Penal Code may be tried- (1)  S.C.R. 435.
(3)  S.C.R. 581.
(2)  S-C R. 710.
(4)  S.C.R. 661.
1050 (a) by the High Court, or (b) by the
Court of Session, or (c) by any other Court by which such offence is shown in
the eighth column of the second schedule to be triable".
Section 30, as it now stands, provides:-
"30. In Assam, Madhya Pradesh, Punjab, Oudh, Madhya Bharat, Hyderabad,
Mysore, Patiala and East Punjab States Union and Rajasthan, in all Part C
States and in those parts of the other States in which there are Deputy
Commissioners or Assistant Commissioners the State Government may, not-
withstanding anything contained in section 28 or section 29, invest the
District Magistrate or any Magistrate of the first class, with power to try as
a Magistrate all offences not punishable with death".
Section 34 puts a limit to the power of
punishment of a section 30 Magistrate in terms following:- "34. The Court
of a Magistrate, specially empowered under section 30, may pass any sentence authorised
by law, except a sentence of death or of transportation for a term exceeding
seven years or imprisonment for a term exceeding seven years".
It will be noticed that section 28 begins
with the clause "subject to the other provisions of this Code". This
means that the section and the second schedule referred to therein are
controlled by the other provisions of the Code including the provisions of
section 30. Further, the text of section 30 itself quite clearly says that its
provisions will operate "notwithstanding anything contained in section 28
or section 29". Therefore, the provisions of section 28 and the second
schedule must give way to the provisions of section 30. It is not, however,
claimed by the learned Attorney-General that section 30 abrogates or overrides
altogether the provisions of section 28 and the second schedule in the sense
that in the specified territories Magistrates empowered -under section 30
become the only tribunal competent to try all offences not punishable with
death to the exclusion of all other Courts mentioned in the 8th column of the
1051 If that had been the position, then
there could be no question of discrimination, for, in that situation, section
30 Magistrate's Court would be the only Court in which all offences not
punishable with death would become triable. As already stated, this extreme
claim is not made by the learned Attorney-General. The effect of the State
Government investing the District Magistrate or any Magistrate of the first
class with power under section 30 is to bring into being an additional court in
which all offences not punishable with death become triable. In other words,
the effect of the exercise of authority by the State Government under section
30 is, as it were, to add in the 8th column of the second schedule the
Magistrate so em- powered as a Court before whom all offences not punishable
with death will also be triable. The question is whether this result brings
about any inequality before the law and militates against the guarantee of
Section 30, however, empowers the State
Government in certain areas to invest the District Magistrate or any Magistrate
of the first class with power to try as a Magistrate all offences not
punishable with death. There is an obvious classification on which this section
is based, namely, that such power may be conferred on specified Magistrates in
certain localities only and in respect of some offences only, namely, all
offences other than those punishable with death. The Legislature understands
and correctly appreciates the needs of its own people which may vary from place
to place. As already observed, a classification may be based on geographical or
territorial considerations. An instance of such territorial classification is
to be found in the Abducted Persons (Recovery and Restoration) Act, 1949 which
came up for discussion before this Court and was upheld as valid in The State
of Punjab v. Ajaib Singh(1). S. K. Das, J., and the learned Chief Justice have
in their respective judgments referred to certain circumstances, e.g. the
distance between the place of occurrence and the headquarters where (1) 
S.C R. 254. 135 1052 the Court of Session functions at considerable intervals,
the inconvenience of bringing up witnesses from the interior, the difficulty of
finding in the backward or out of the way places sufficient number of suitable
persons to act as jurors or assessors, all of which make this classification
quite a reasonable one. In this sense, the section itself does not bring about
any discrimination whatever. The section only authorises the State Government
to invest certain 'Magistrates with power to try all offences not punishable
with death and this authority the State can exercise only in the specified
places. If the State invests any Magistrate with powers under section 30
anybody who commits any offence not punishable with death and triable by a
Court of Session under section 28 read with the second schedule is also liable
to be tried by the section 30 Magistrate. The risk of such liability falls
alike upon all persons committing such an offence.
Therefore, there is no discrimination in the
The learned counsel for the appellants,
however, contends, on the strength of the decision of the Supreme Court of
America in Yick, Wo v. Peter Hopkins(1) that "though a law be fair on its
face and impartial in operation, yet, if it is administered by public authority
with an evil eye and an unequal hand so as practically to make illegal
discrimination between persons in similar circumstances materially to their
rights, the denial of equal justice is still within the prohibition of the
Constitution". The contention is that although the section itself may not
be discriminatory, it may lend itself to abuse bringing about a discrimination
between persons accused of offences of the same kind, for the police may send
up a person accused of an offence under section 366 to a section 30 Magistrate
and the police may send another person accused of an offence under the same
section to a Magistrate who can commit the accused to the Court of Session. It
is necessary to examine this contention with close scrutiny.
When a case under section 366, Indian Penal
(1) 118 u.s. L.Ed. 220.
1053 Code., which is a case triable by a
Court of Session under the second schedule, is put up before a section 30
Magistrate, the section 30 Magistrate is not necessarily bound to try the case
himself. Section 34 limits the power of the section 30 Magistrate in the matter
If the section 30 Magistrate after recording
the evidence and -before framing a charge feels that in the facts and circumstances
of the case the maximum sentence which he can inflict will not meet the ends of
justice he may, instead of disposing of the case himself, act under section 347
and commit the accused to the Court of Session. Here, whether the accused
person shall be tried by the section 30 Magistrate or by the Court of Session
is decided not by the executive but is decided according to the discretion
judicially exercised by the section 30 Magistrate himself.
Take the case of another person accused of an
affence under section 366 which is sent up by the police to a Magistrate who is
not empowered under section 30. Such Magistrate after perusing the challan and
other relevant papers may, if he thinks that the ends of justice will be met if
the case is tried by a section 30 Magistrate, submit the case to the District
Magistrate with his own recommendations for such action as the latter may think
fit to take under section 528 of the Code of Criminal Procedure. That is what
was done in the instant case. On the other hand, he may take evidence under
section 208 and after the evidence has been taken, make up his mind judicially
whether he should proceed under section 209 or section 210. He may consider
that in the facts and circumstances of the case disclosed in the evidence the
ends of justice require that the accused person should be committed to the
Court of Session and in that event he will proceed to frame a charge and follow
the provisions of sections 210 to 213. If, however, the Magistrate is satisfied
on the facts of the case that the ends of justice will be sufficiently met if
the accused is tried by a section 30 Magistrate having jurisdiction in the
matter, the Magistrate may report to the District Magistrate and the latter
may, in his discretion, withdraw the case under section 528 of the 1054 Code of
Criminal Procedure to himself and may enquire into or try such case himself or
refer it for enquiry or trial to any other Magistrate competent to try the
same. In such a case there is exercise of judicial discretion at two stages,
namely, under section 209 by the Magistrate before whom the accused was sent up
for enquiry and also by the District Magistrate acting under section 528 of the
Code of Criminal Procedure. It is thus clear that the ultimate decision as to
whether a person charged under section 366 should be tried by the Court of
Session or by a section 30 Magistrate does not depend merely on the whim or
idiosyncrasies of the police or the executive Government but depends ultimately
on the -proper exercise of judicial discretion by the Magistrate concerned. It
is suggested that discrimination may be brought about either by the Legislature
or the Executive or even the Judiciary and the inhibition of article 14 extends
to all actions of the State denying equal protection of the laws whether it be
the action of anyone of the three limbs of the State. It has, however, to be
remembered that, in the language of Frankfurter, J., in Snowden v. Hughes(1),
"the Constitution does not assure uniformity of decisions or immunity from
merely erroneous action, whether by the Courts or the executive agencies of a
State". The judicial decision must of necessity depend on the facts and
circumstances of each particular case and what may superficially appear to be
an unequal application of the law may not necessarily amount to a denial of
equal protection of law unless there is shown to be present in it an element of
intentional and purposeful discrimination (See per Stone, C.J., in Snowden
v.Hughes (supra). It may be mentioned at once that in the present case there is
no suggestion whatever that there has been at any stage any intentional or
purposeful discrimination as against the appellants by the Sab-Divisional
Magistrate or the District Magistrate or the section 30 Magistrate who actually
tried the accused. Further, the discretion of judicial officers is not
arbitrary and the law provides for revision by (1) (1914) 321 U.S. 1; 88 L. Ed.
497. 1055 superior Courts of orders passed by the Subordinate Courts.
In such circumstances, there is hardly any
ground for Apprehending any capricious discrimination by judicial tribunals.
On the facts and circumstances of this case
we find ourselves in agreement with S. K. Das, J., and Reuben, C. J., and hold
that no case of infringement of fundamental right under Article 14 has been
made out. In the circumstances, we dismiss this appeal.