Kangsari Haldar & ANR Vs. The
State of West Bengal  INSC 158 (18 December 1959)
SINHA, BHUVNESHWAR P.
CITATION: 1960 AIR 457 1960 SCR (2) 646
CITATOR INFO :
R 1967 SC1581 (23) R 1974 SC2009 (12,15) F
1974 SC2044 (3) R 1979 SC 478 (72,73)
Criminal Trial-Statute Providing for trials
by special Tribunals of specified offences committed in disturbed areas during
specified Periods-Constitutionality-Reasonable classification-Test -Tribunals
of Criminal jurisdiction Act, 1952 (W.B. Act XIV of 1952), s. 2(b), proviso to
The appellants were prosecuted for having
committed offences under S. 120B read with Ss. 302 and 436 of the Indian Penal
Code and their case was taken up for trial before the Third Tribunal
constituted under the West Bengal Tribunals of Criminal jurisdiction Act, 1952
(W.B. Act XIV of 1952). By a notification dated September 12, 1952, and issued
under S. 2(b) of the Act the Government of West Bengal declared the whole area
within the jurisdiction of Kakdwip and Sagar Police Stations to be a disturbed
area and specified the period from January 1, 1948, to March 31, 1950, to be
the period during which the notification was to be effective.
The case against the appellants was that
between the dates mentioned in the notification, they took leading part in a
violent movement called the Tebhaga movement in Kakdwip and incited the
Bhagehasis, i.e., the cultivators who actually cultivated the land, to claim
the entire crop instead of 2/3 share of it and that they preached murder and
arson amongst the cultivators and such preaching was followed by arson and
murder on a large scale. The appellants moved the High Court for an order quashing
the proceedings against them on the ground that S. 2(b) of the Act, which
allowed the Government to declare an area in which " there was "
disturbance in the past to be a disturbed area, offended Art. 14 Of the
Constitution as discriminating between persons who had committed the same
offences and whose trials had already concluded before the notification under
the normal and more advantageous procedure and others whose trials had not
concluded and who had to be tried by a less advantageous and special procedure
prescribed by the Act.
The application of the appellants was first
heard by a bench of two judges but as there was difference of opinion between
them the matter was referred to a third judge, and the High Court by a majority
held that the provisions of the impugned Act were intra vires and did not
offend Art. 14 of the Constitution.
On appeal by special leave challenging the
vires Of S. 2(b) and the proviso to S. 4(1) Of the Act, Held (per Sinha, C.J.,
Gajendragadkar and Shah, jj.), that the equality before law, guaranteed by Art.
14, no doubt prohibits class legislation but it does not prohibit the
Legislature to legislate 647 on the basis of a reasonable classification. If
any state off acts can reasonably be conceived to sustain a classification, the
existence of that state of facts must be assumed.
Chiranjitlal Choudhuri v. The Union of India
and Others,  S.C.R. 869 and Kedar Nath Bajoria v. The State of West
Bengal,  S.C.R. 30, followed.
Where the classification is reasonable and is
founded on an intelligible differentia and that differentia has a rational
relation to the object sought to be achieved by the statute, the validity of
the statute cannot be successfully challenged under Art. 14. Since the
classification made by the impugned Act is rational and the differentia by
which offenders are classified has a rational relation with the object of the
Act to provide for the speedy trial of the offences specified in the Schedule,
S. 2(b) and the proviso to s. 4(1) of the Act cannot be said to contravene Art.
1 Of the Constitution even though the procedure prescribed by the Act may
amount to discrimination.
The State of West Bengal v. Anwar Ali Sarkar,
Kathi Raning Rawat v. The State of Saurashtra,
435, Lachmandas Kewalram Ahuja and Another v.
The State Of Bombay,  S C.R. 710 and Gopi Chand v. Delhi Administration,
A.I.R. 1959 S.C. 609, considered.
Per Sarkar and Subba Rao, jj.
(dissenting).-Whether a law offends Art. 14 or not does not depend upon whether
it is prospective or retrospective for both prospective and retrospective'
statutes may contravene the provisions of that Article. Although the general
rule is that a law must apply to all persons, it is permissible to validly
legislate for a class within certain well recognised limits. The true test of a
valid classification is that it must be capable of being reasonably regarded as
being based upon a differentia which distinguishes that class from others, and
the differentia itself must have a reasonable relation with the object the
statute has in view.
Shri Ram Krishna Dalmia v. Shri justice S.R.
Tendolkar,  S.C.R. 279, followed.
The object of the Act in question being to
secure a speedy trial of certain offences committed in a specified area during
a specified period of time in the interest of the security of the State and the
maintenance of public peace and tranquillity in a disturbed area, a distinction
made between the cases where the trials had been concluded and the cases where
the trials had not yet been concluded, is not a distinction which has any
rational relation to the object. In order to secure that object it is necessary
to place both classes of persons in the same situation.
Gopi Chand v. Delhi Administration, A.I.R.
1959 S.C. 609, distinguished.
648 The Act in so far as it permits an area
which was a disturbed area in the past to be declared a disturbed area for the
purposes of the Act offends Art. 14 of the Constitution and is, therefore,
unconstitutional and void.
That portion Of S. 2(b) which declares an
area to be a disturbed area in the past and the notification in question must
therefore be held to be void.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 204 of 1959.
Appeal by special leave from the judgment and
order dated June 23, 1959, of the Calcutta High Court in Criminal Revision No.
640 of 1958.
S. K. Acharya and Janardan Sharma, for the
S. M. Bose, Advocate-General for, the State
of West Bengal, K. C. Mukherjee and P. K. Bose, for the respondent.
1959. December 18. The judgment of Sinha, C.
J., Gajendragadkar and Shah, JJ. was delivered by Gajendragadkar J. The
judgment of Sarkar and Subba Rao, JJ. was delivered by Sarkar, J.
GAJENDRAGADKAR J.-This appeal by special
leave challenges the vires of S. 2(b) and the proviso to s. 4(1) of the West
Bengal Tribunals of Criminal Jurisdiction Act, 1952 (W.B.
Act XIV of 1952) (hereinafter called the
Act). A complaint was filed against Kangsari Haldar and Jogendra Nath Guria (hereinafter
called the appellants) in which it was alleged that the appellants along with
some others had committed offences under s. 120B read with ss. 302 and 436 of
the Indian Penal Code. The case against them was that in 1947 a tebhaga
movement had been launched in Kakdwip area by the communist party and that
later on the Bhagehasis were persuaded to claim the entire and not only 2/3 of
the produce in 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 649 against them
taken up for trial before the Third Tribunal at Alipore constituted under the
Act. Ninety nine 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
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
first heard by Mitter and Bhattacharya, JJ. ; but since there was a difference
of opinion between the two learned judges the case was referred to Sen, J.
Bhattacharya, J., had taken the view that the impugned provisions of the Act
were ultra vires and so he was inclined to allow the revision application and
quash the proceedings taken against the appellants ; on the other hand, Mitter,
J., had taken a contrary view, and Sen, J., to whom the matter was referred
agreed with the view taken by Mitter, J. In the result it was held that the
impugned provisions of the Act were intra vires and so the rule issued on the
appellants' revision application was discharged and the application itself was
dismissed. The appellants then applied to the said High Court for a certificate
either under Art. 132 or under Art.
134 of the Constitution but their
applications were dismissed. Thereupon they moved for, and obtained, special
leave from this Court. That is how this appeal has come before this Court; and
the only point which it raises for our decision is about the vires of the two
impugned provisions of the Act.
On behalf of the appellants Mr. Acharya has
contended that the genesis of the Act should be borne in mind in dealing with
the vires of the impuged provisions ; and in support of this argument he has
strongly 83 650 relied on the sequence of events which led to the passing of
the Act. It appears that the West Bengal special Courts Act X of 1950, was
passed by the West Bengal Legislature and came into force on March 15, 1950.
The vires of s. 5(1) of the said Act were impeached by Anwar Ali Sarkar and
others who were being tried under the provisions of the said Act.
On August 28, 1951, the Calcutta High Court
partially upheld the plea and struck down a part of s. 5(1). The said decision
was challenged by the State of West Bengal before this Court in The State of
West Bengal v. Anwar Ali Sarkar (1) ;
but the appeal preferred by the State was
dismissed; and by a majority decision of this Court not only a part of s. 5(1)
but the whole of it was declared to be ultra vires as being violative of Art.
14 of the Constitution. This decision was pronounced on January 11, 1952. Soon
thereafter an Ordinance was promulgated (No. 1 of 1952) by the West Bengal
Government on March 24, 1952, and in due course this Ordinance was replaced by
the Act which came into force on 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 (1). 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(1) 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 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 (1) 
651 but it does not prohibit the Legislature
from legislating on the basis of a reasonable classification. If the
classification is reasonable and is founded on intelligible differentia and the
said differentia have a rational relation to the object sought to be achieved
by the statute based on such reasonable classification the validity of the
statute cannot be successfully challenged under Art. 14.
These propositions have been repeated so many
times during the past few years that they now sound almost platitudinous-. Thus
the enunciation of the principles which flow from. the fundamental rights
enshrined in Art. 14 now presents no difficulty; it is, however, in the
application of the said principles that difficulties often arise. In applying
the said principles to the different sets of facts presented by different cases
emphasis may shift and the approach may not always be identical; but it is
inevitable that the final decision about the vires of any impugned provision
must depend upon the decision which the court reaches, having regard to the
facts and circumstances of each case, the general scheme of the impugned Act
and the nature and effect of the provisions the vires of which are under
examination. Let us, therefore, first examine the relevant scheme of the Act
and ascertain the effect of the provisions under challenge.
The Act was passed because the Legislature
thought it expedient in the interest of the security of the State, the
maintenance of public peace and tranquillity and the due safeguarding of the
industry and business, to provide for the speedy trial of the offences
specified in the schedule.' Section 2(b) defines a disturbed area as meaning an
area in which in the opinion of the State Government-(i) there was, or (ii)
there is, any extensive-disturbance of the public peace and tranquillity and in
respect of which area the State Government has issued a notification declaring
such area to be a disturbed area. The section then adds that in cases falling
under cl. (i) the notification shall have effect during such period as may be
specified therein, and in cases falling under cl. (ii) the notification shall
have effect from such date as may be specified in the 652 notification until
the notification is revoked. It would thus be noticed that the disturbed area
can be of two categories; it can be an area where extensive disturbance as
described had taken place but at the time of the notification the disturbance
may have 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 of property to or from a factory, mill, workshop
or bank; and the last item covers cases of conspiracy to commit or any attempt
to commit or any abetment of any of the offences specified in items 1 to 3.
The scheme of the Act is thus to appoint
special. tribunals to try the scheduled offences which have taken place in
disturbed areas as defined in s. 2(b). That is the effect of s. 4 of the Act.
The proviso to s. 4(1) enables the tribunal when it is trying any case to try
in its discretion any offence other than a scheduled offence with which the
accused may under the Code be charged at the same trial. In other words, the
trial of an accused person in respect of the scheduled offences may include any
other offence which is not included in the schedule and which would be triable
under the provisions of the 653 Code. As we have already indicated the present
appeal challenges the vires of s. 2(b) and the proviso to s. 4(1).
It cannot be disputed that the procedure
prescribed for the trial before the tribunal under the Act differs in some
material, particulars from the procedure prescribed by the Code, and the said
difference can be treated as amounting to discrimination which is pre-judicial
to the accused; under the Act no commitment proceedings have to be taken and
the benefit of jury trial is denied. The provision made by the first proviso
-to s. 5 in respect of adjournment of the trial is also stricter and more
stringent. Similarly, the right of an accused person to claim a de novo trial
where a judge presiding over a tribunal ceases to be available before the
completion of the trial is also materially affected by the provisions of s. 6.
Section 10 makes applicable the provisions of the Code or of any other law for
the time being in force which may be applicable to the trial of criminal cases
in so far as they are not inconsistent with the provisions of the Act. Thus it
may be conceded that the appellants are entitled to complain that on the whole
the procedure prescribed for the trial of scheduled offences under the Act
amounts to discrimination.
The question is whether such discrimination
violates the provisions of Art. 14.
This question necessarily leads us to inquire
whether the discriminatory provisions of the Act are based on any rational
classification, and whether the differentiation of the offenders brought within
the mischief of the Act has a 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 654 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
The classification of offenders who are
reached by the Act is obviously reasonable. The offences specified in the four
items in the schedule are clearly of such a character as led to the disturbance
and it is these offences which were intended to be speedily punished in order
to put an end to the threat to the security of the State and the maintenance of
public peace and tranquillity. It would be idle to contend that if the offences
of the type mentioned in the schedule were committed and the Legislature
thought that they led to the disruption of public peace and tranquillity and
caused jeopardy to the security of the State they could not be dealt with as a
class by themselves. Other offences committed by individuals under the same
categories of offences specified by the Code could be' rationally excluded from
the classification adopted by the Act because they did not have the tendency to
create the problem which the Act intended to meet. We are, therefore, satisfied
that the classification made by the Act is rational and the differentiation on
which the offenders included within the Act are treated as a class as
distinguished from other offenders has a rational nexus or relation with the
object of the Act and the policy underlying it. Therefore, it would be
difficult to accede to the argument that the Act violates Art. 14 of the
It is, however, urged that s. 2(b)(i) is not
intra vires because the classification on which it is based violates Art. 14.
This contention has taken a two-fold form. It is urged that the notification
which is authorised to be issued under s. 2(b)(i) necessarily deals with an
area which has ceased to be disturbed at the time when it is issued; and it is
inevitable that when such a notification is issued some of the offences which
would have 655 been tried under the Act as a result of the notification may
have already. been tried under the ordinary Code, and it is only such cases as
are not disposed of on the date of the notification which would fall within the
mischief of the Act and that constitutes an irrational or arbitrary
classification. It is also urged that when the area covered by such a
notification has ceased to be disturbed there is no rational or valid
justification for applying the Act to the offences committed in such an area when
in the other continuously undisturbed areas similar offences would be tried
under the normal provisions of the Code. In fact it is these two aspects of the
question which have been strongly pressed before us 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. (1) and Kedar Nath Bajoria v. The
State of West Bengal (2) ).
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, introduce any infirmity
in the statutory provision itself It must be remembered that the classification
on which the impugned notification rests is between the scheduled offences committed
in an area which is declared to be a disturbed area and similar offences
committed elsewhere in the State; and so the fact that some of the scheduled
offences (1)  S.C.R. 869 at p. 877.
(2)  S.C. R. 30 at P. 39.
656 escaped the operation of the notification
because they had been already tried cannot affect its legality or validity.
Such an adventitious or accidental result
cannot sustain the attack against the classification which is otherwise
rational, reasonable and valid. In fact it would not be easy or always possible
for the Legislature to prevent such an accidental escape of some cases from the
provisions of a special statute for the reason that they had already been
decided. If the statute had permitted discrimination between cases under the
scheduled offences which still remained to be tried that would have been
In our opinion it would be unreasonable to
requisition the assistance of cases which had been disposed of and have become
a matter of history to challenge the classification in question.
The second contention is also without
substance because it ignores the material difference between the character of
the offences committed during the specified period in the disturbed area and
offences committed in continuously undisturbed areas. The offences committed in
areas subsequently declared to be disturbed led to and were the cause of the
extensive disturbance. In consequence of such disturbance investigation into
such offences is rendered difficult; it is not easy in such disturbed
conditions to collect and marshall evidence because witnesses are apt to be
terrorised, and though the area has ceased to be disturbed absence of
disturbance may be temporary, and unless the offenders are brought to book
speedily the temporary peace may turn out to be the lull before another storm.
That is why even in respect of areas which have ceased to be disturbed,
offences committed when the area was disturbed during the period specified in
the notification are required to be tried under the Act. Such offences cannot,
in our opinion, be reasonably compared with offences committed under the same
sections of the Code in continuously undisturbed areas. In their essential
features the two offences form two distinct and different categories and the
contention that the classification of the offences made in such a case is
irrational must, 657 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
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 notification itself; but the possibility of such abuse of power
cannot reasonably affect the vires of the statute itself. Mr. Acharya no doubt
suggested that the object of the impugned notification was to bring only the
case of the appellants under the mischief of the Act but he frankly conceded
that he had not made such a specific plea in his petition and that, though it
would be possible for him to urge that a large majority of the scheduled
offences committed during the specified period had already been tried under the
Code, it would not be possible for him to sustain the plea on the material available
on the record that the notification has been issued solely with a view to bring
the case of the appellants alone under the mischief of the Act.
That is why this aspect of the matter does
not fall to be considered in the present appeal.
The next argument is that the proviso to s.
4(1) is ultra vires. We do not think that here is any substance in this
argument. What the proviso does is to enable the tribunal to try any offence
other than the scheduled offence with which the accused may be 84 658 charged
and which would be ordinarily triable under the provisions of the Code. But
does this amount to an infringement of Art. 14 at all ? In our opinion the
answer to this question must be in the negative. It is significant that the
proviso leaves it to the discretion of the tribunal whether or not any other
offence should be tried under the Act along with the scheduled offence charged
against the accused in a given case. Besides there can be no doubt that the
offences' other than the scheduled offences which may be included in a trial
under the Act would be minor or allied offences the proof of which would follow
from the facts adduced in support of the major offences. That in fact is the
position even under the provisions of the Code. If the trial of the major
scheduled offence under the Act is justified and valid the impugned proviso
does nothing more than enable the tribunal to decide whether the accused is
guilty of any minor or allied offence. In our opinion, therefore, the challenge
to the proviso in question cannot succeed.
It now remains to consider the decisions to
which our attention was invited. In the case of Anwar Ali Sarkar (1) where s.
5(1) of the Bengal Act X of 1950 was impeached the majority decision was that
the said section was wholly invalid. The preamble 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
discriminations made, and that it was unreasonable to have left to the absolute
and unfettered discretion of the (1)  S.C.R. 284.
659 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 with the conclusion of the High Court that s. 5(1) was bad only in
so far as it empowered the State Government to direct cases to be tried by a
special court; it may be added that though Bose, J., agreed with the conclusion
of the majority, he was not satisfied that the tests laid down in deciding the
validity of the classification could afford infalliable guide because he
thought that the problem posed in such cases is not solved by substituting one
generalisation for another. It would thus be seen that the majority decision in
that case was based on two principal considerations that, having regard to the
bald statement made in the preamble about the need of speedier trials, it was
difficult to sustain the classification made by s. 5(1), and that the
discretion left to the executive was unfettered and for its exercise no
guidance was given by the statute. It is difficult to accept the suggestion of
Mr. Acharya that the impugned provisions in the Act with which we are concerned
are comparable to s. 5(1) in that case.
The next decision to which reference must be
made is Kathi Raning Rawat v. The State of Saurashtra (1). The majority
decision in that case upheld the validity of ss. 9, 10 and 1 1 of the
Saurashtra State Public Safety (Third Amendment) Ordinance, 1949 (66 of 1949)
and the notification issued under it. Patanjali Sastri, C.J., and three other
learned judges of this Court took the view that the preamble to the Act gave a
clear indication about the policy underlying the Act and the object which it
intended to achieve, that the classification on which the impugned provisions
were based was a rational classification, and that the differentia on which the
classification was made had a rational nexus with the object and policy of the
Act. Mahajan, Chandrasekhara Ayyar and Bose, JJ., however, dissented. According
to them the notification (1)  S.C.R. 435.
660 and the impugned provisions had violated
Art. 14. It is significant that in up holding the validity of the impugned
provisions and the notifications the tests applied were the same as laid down
in Anwar Ali Sarkar's case (1).
The third decision pronounced by this Court
in the same year -is Lachmandas Kewalram Ahuja & Anr. v. The State of
Bombay (2). Section 12 of the Bombay Public Safety Measures Act, 1947, was
struck down by the majority decision in that case as it contravened 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 (1) and held that the impugned provision was valid. The decision in the
case of Ahuja (2) 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. This time it was s. 4(1) of the West Bengal
Criminal Law Amendment (Special Courts) Act, 1949, which was challenged in
Kedar Nath Bajoria's case (3 ). This Act had been passed to provide 'for the
more speedy and more effective punishment of certain offences because the
Legislature thought that it was expedient to provide for the more speedy trial
and more effective punishment of certain offences which were set out in the
schedule annexed (1)  S.C.R. 284.
(2)  S.C.R. 710.
(3)  S.C.R. 30.
661 to the Act. Section 4(1) authorised the
Provincial Government to allot cases for trial to a special judge by
notification as well as transfer cases from one special judge to another or to
withdraw any case from the jurisdiction of the special judge or make such
modifications in the description of a case as may be considered necessary.
Pronouncing the majority judgment in that
case Patanjali Sastri, C. J., elaborately considered the earlier decisions of
this Court to which we have already referred, applied the tests laid down
therein, and held that s. 4 of the Act was valid and that the special court had
jurisdiction to tryand convict the, appellants. Bose, J., however, did not
agree and recorded his dissent with deepest regret. In dealing with the merits
of the controversyraised before the Court Patanjali Sastri, C. J., referredto
the fact that according to the dissenting view " thedecision of the
majority in the case of Kathi Baning Rawat v. The State of Saurashtra (1)
marked a retreat from the position taken up by the majority in the earlier case
of Anwar Ali Sarkar He, however, added that the Saurashtra case (1) 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
Art. 14." There is is one more decision to which reference may be made. In
Gopi Chand v. Delhi Administration (3) this Court has upheld the validity of s.
36(1) of the East Punjab Public Safety 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 (1) 
S.C.R. 435. (2)  S.C.R. 284.
(3) A.I.R. 1959 S.C. 609.
662 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 whether the same result could not have been better achieved by adopting a
different classification would be foreign to the scope of the judicial enquiry.
If either of the two tests is not satisfied the statute must be struck down as
violative of Art. 14. Applying this test it seems to us that the impugned
provisions contained in s.
2(b) and the proviso to s. 4(1) cannot be
said to contravene Art. 14. As we have indicated earlier, if in issuing the
notification authorised by s. 2(b) the State Government acts mala fide or
exercises its power in a colourable way that can always be effectively
challenged; but, in the absence of any such plea and without adequate material
in that behalf this aspect of the matter does not fall to be considered in the
The result is the order passed by the High
Court is confirmed and the appeal dismissed.
Before we part with this appeal, however, we
would like to add that, since the offences are alleged to have been committed
more than ten years ago, it is desirable that the case against the appellants
should now be tried and disposed of as expeditiously as possible.
663 SARKAR. J. -The question that arises in
this appeal whether a certain provision of the Tribunal Criminal Jurisdiction
Act, 1952, (W. B. Act XIV of 1952) is void as it takes away the right conferred
by art. 14 of the Constitution. In my view, it is.
The Act came into force on July 30, 1952. The
object of the Act is set out in the preamble which so far as is relevant in
this case reads, " Whereas it is expedient in the interests of the
security of the State, the maintenance of public peace and tranquillity to
provide for the speedy trial of the offences specified in the Schedule; It is
hereby enacted...." The provisions of the Act which have to be considered
in this case are set out below.
S. 2. Definitions.-In this Act unless there
is anything repugnant in the subject or context(a).......................................
(b) " disturbed area " means an
area in which in the opinion of the State Government(i) there was or (ii) there
is any extensive disturbance of the public peace and tranquillity and in
respect of which area the State Government has issued a notification declaring
such area to be a disturbed area. In cases falling under clause (i) the
notification shall have effect during such period as may be specified therein,
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;
(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.
(i) Scheduled offences shall be triable by
the Tribunals only;
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.
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 procedure laid down for the trial of
warrant cases by a Magistrate,. instituted otherwise than on a police report
and the procedure for committal for trial is omitted.
Further, a Judge presiding over a Tribunal
may act on the evidence recorded by his predecessor. The procedure provided by
the Act is thus clearly less beneficent to an accused than the normal procedure
under the Code of Criminal Procedure, which would have to be adopted for his
trial if the Act had not been passed. The learned Advocate-General of West
Bengal, appearing for the respondent, the State of West Bengal, did not contend
to the contrary. The Act, therefore, provides a disadvantageous and so, a
discriminatory procedure for the persons who come under its scope.
We turn now to the facts of this case. On
September 12, 1952, the Government of West Bengal issued a notification under
s. 2(b) of the Act declaring the whole area within the jurisdiction of Kakdwip
and Sagar police-stations to be a disturbed area and specified the period from
January 1, 1948, to March 31, 1950, to be the period during which the
notification was to have effect.
The Special Public Prosecutor Kakdwip cases,
of the Government of West Bengal filed a complaint against the appellants and
several other persons as a result of the proceedings taken by that Government
in case 665 No. 1 of Judicial Department Notification No. 5916 dated October
24, 1952. The date of the complaint does not appear from the record. The case
against the appellants and the -other persons appears to be that, between the
dates mentioned in the Notification Of September 12, 1952, they were among the
leaders of the violent form of a movement called the Tebhaga movement, in the
Kakdwip area and they, with the others, led the movement to kill the landlords and
jotdars and burn down their houses, so that the bhagchasis, that is, the
cultivators who cultivated the lands of the landlords and jotdars on the basis
of getting a share of the crop produced, might obtain full control over the
lands they cultivated and the object of the movement included offering
resistance to and killing the police if they intervened, and burning down
school houses where the police frequently camped.
On the aforesaid complaint, on March 3, 1958,
proceedings were started against the appellants under the Act. After examining
99 witnesses the learned Judge presiding over the 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 85 666 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 the High Court consisting of Mitter and Bhattacharya, JJ.
These learned Judges came to entertain
different views on the question. Mitter, J., thought that the Act had been
given a retrospective operation by permitting the declaration of an area as a
disturbed area for a past period but that the Act dealt only with procedure and
procedural alterations were always ,retrospective. Bhattacharya, J., seems to
have been of the view that a retrospective operation even of a procedural
statute is not permissible if such operation results in the statute offending
art. 14 ;
that the principle of the retrospective
operation of a procedural statute is not available to by-pass the
constitutional safeguard guaranteed by art. 14.
In view of this difference of opinion, the
matter was referred to a third learned Judge of the Court, namely, Sen, J. He
was of the view that the retrospective operation of the Act, by which he meant
the application of the procedure laid down in it to cases in respect of offences
committed before the Act the trial of which had not been concluded, did not
offend art. 14; that there was no fundamental right to a particular procedure
for trial and alterations in the procedural law were always retrospective
unless the contrary was indicated. He further observed, " The change in
the procedure made by a statute in respect of offences falling within a
prescribed reasonable classification, affects all pending cases of that class;
and so long as all pending cases within the class are tried under the special
procedure, there is no discrimination." In the result, the appellant's
application was refused. They have now appealed to this Court.
It seems to me that the learned Judges of the
High Court were unduly oppressed by considerations of the retrospective
operation of the Act. The question is not whether the Act is prospective or
retrospective in its operation. Nor is it the question whether the Act deals
with procedures or substantive rights. The only question is whether the Act
operates in respect only of 667 a class of persons and if so, whether the
classification is justifiable. Whether a law offends art. 14, does not depend
upon whether it is prospective or retrospective. There is nothing in art. 14 to
indicate that a law operating retrospectively cannot offend it. It is possible
both for prospective and retrospective statutes to contravene the provisions of
that article. It is not necessary therefore to consider whether the Act is
prospective or retrospective or whether it concerns procedure or substantive
The general rule is that a law must apply to
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 1. 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 it to the discretion of the Government to select and
classify persons or things to whom its provisions are to
the court will strike down the statute if it
does not lay down any principle or policy for guiding the exercise of the
discretion by the Government in the matter of selection or classification
In such a case the court will strike down
both the law as well as the executive action taken under such law." (1)
 S.C.R. 279.
668 The statute before us has made a
classification in regard to offences. It applies only to those offences which
are mentioned in the Schedule. I will assume that this classification satisfies
the test and is good. I wish to observe here that in this case I am considering
the validity of the statute only in so far as it is concerned with an offence
committed in a disturbed area. Such an offence comes under items 2 and 4 of the
Schedule which alone, therefore, I have set out. Now, the Act leaves it to the
Government to decide which is a disturbed area and to make a classification on
the basis of areas. I will also assume that the Act is not invalid in so far as
it leaves it to the Government to make this classification; that it lays down a
principle or policy, namely, extensive disturbance of public peace and
tranquillity for guiding the Government in making this classification.
Now, s. 2(b) empowers the Government to
declare an area to be a disturbed area where " there was " extensive
disturbance of the public peace and tranquillity in the past. The Government
has however to mention in the notification making such a declaration, the
period during which it shall have effect; in other words, the notification has
to specify the period in which in the area declared a " disturbed area
", disturbance of the public peace and tranquillity had taken place. The area,
so declared a " disturbed area " becomes a " disturbed area
" within the meaning of the Act for that period only. In such a case only
such of the offences mentioned in items Nos. 2 and 4 of the Schedule as were
committed in the specified area during the specified period come under the
scope of the Act. This is the kind of declaration of a " disturbed area
" that we have in this case.
The effect of this kind of declaration is
that it makes the Act applicable only to persons 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 669 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
The effect of the Act therefore is to group
into one class, persons committing the specified offences in the specified area
and in the specified period whose trials had not been concluded before the
making of the declaration. It is only to them that the Act applies. This is
where the difficulty arises. There does not seem to be any intelligible
differentia by which such persons can be differentiated from others who
committed the same offences in the same area and during the same period but
whose trials had been concluded before the making of the declaration. The
object of the Act, as earlier stated, is to secure speedy trials in the
interests of the security of the State and the maintenance of the public peace
and tranquillity in view of the extensive disturbance of the public peace and
tranquillity in an area. It would be necessary to carry out this object that
both the classes of persons, namely, those whose trials had been concluded as
also those whose trials had not been concluded, should be treated according to
the same law. The only distinction between the two classes is that in one case
the trials had been concluded while in the other, they had not been. Now that
is not a differentia, if it may be called so, which has any reasonable relation
to the object of the Act. lndeed, in order to secure that object, it is
necessary to place both the classes of persons in the same situation. By
permitting a declaration classifying offences committed in the past, the Act
makes a classification which cannot stand the 670 well-known test which I have
read from Ram Krishna Dalmia's case (1).
It cannot be said that the object of the Act
is only to provide speedy trial and that therefore as there is of no question
of speedy trial in the cases where the trial hadalready been concluded there is
an intelligible differentia between such cases and those where the trial had
not been concluded. It is quite plain that the object of the Act is not simply
to provide a speedy trial. Indeed, all offences require speedy trial. The
object of the Act is expressly to provide speedy trial of certain offences
committed in a specified area and during a specified period because " it
is expedient in the interests of the security of the State, the maintenance of
public peace and tranquillity " to do so. The classification by areas is
based on disturbance in an area and the necessily of restoring peace there.
Such being the object, a distinction made between the cases were the trials had
been concluded and the cases where the trials had not been concluded, is not a
distinction which has any rational relation to that object.
The learned Advocate-General for the State of
West Bengal contended that this case is covered by the decision of this court
in Gopi Chand v. Delhi Administration (2). There, no such difficulty as arises
in this case, had arisen. I therefore do not think that that case is of any
In my view, s. 2(b) of the Act in so far as
it permits an area which was a disturbed area in the past to be declared a
disturbed area for the purposes of the Act, offends art. 14 of the Constitution
and is therefore unconstitutional and void. The declaration in the present case
was made under that portion of s. 2(b) and it cannot be sustained. That portion
of the Act and the Notification of September 12, 1952, must therefore be held
to be void.
In the result I would allow the appeal.
ORDER OF COURT In view of the opinion of the
majority, the order passed by the High Court is confirmed and the appeal is
(1)  S.C.R. 279. (2) A.I.R. 1959 S.C.