Edward Ezra & ANR Vs. The State of
West Bengal [1954] INSC 113 (30 November 1954)
ACT:
West Bengal Criminal Law Amendment (Special
Courts) Amendment Act, 1952 (West Bengal Act XII of 1952) s. 12Conviction under
Criminal Law Amendment Ordinance No. XXIX of 1943 set aside by High Court-High
Court directing the retrial of the accused by a competent court if Government
chose to proceed against them--Retrial under West Bengal Act XII of 1952
Validity of.
HEADNOTE:
Section 12 of the West Bengal Act XII of 1952
provides:
" Nothing in this Act shall apply to any
proceedings pending on the date of the commencement of the West Bengal Criminal
Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than
a Special Court".
On appeal taken by the appellants to the High
Court of Calcutta against their conviction by the First Special Tribunal
Calcutta constituted under the Criminal Law Amendment Ordinance of 1943 the
High Court set aside the conviction on the ground, inter alia that the Special
Tribunal was not properly constituted. The High Court directed that the accused
should be retried in accordance with law by a court of competent jurisdiction,
it being left to the State Government to decide whether actually the trial
should be proceeded with or not. On the 30th July 1952 the West Bengal Act XII of 1952 came into force following an Ordinance laying down similar provisions
which amended in certain respects the provisions of the West Bengal Criminal
Law Amendments (Special Courts) Act of 1949. In August 1952 three Special
Courts were constituted by a notification of the Government of West Bengal, one
of them being described as West Bengal Second Special Court. The case against
the appellants was allotted to this second court for trial.
It was contended on behalf of the appellants
that s. 12 of the West Bengal Act XII of 1952 was a bar to the trial of the pre
sent case under the Act and that under the orders of the High Court passed in
the appeals it was the original case which was commenced before the First
Special Tribunal Calcutta under Central Ordinance XXIX of 1943 which was being
retried by the Special Court constituted under West Bengal Act of 1952. The
present case was pending before the High Court on the 9th April 1952 which was
the date of the commencement of the West Bengal Ordinance preceding the Act and
to such cases the provisions of the Act had been made expressly inapplicable by
s. 12 and that the present case was nothing but a continuation of the original
case which was tried by the First, Special Tribunal Calcutta under the
Ordinance of 1943 and against the decisions of which appeals were taken to the
High Court.
Held, (repelling the contention) that what
was pending before the High Court on the 9th April, 1952 were the appeals taken
by the appellants (and their co-accused) against the judgment of the First
Special Tribunal Calcutta constituted under the Central Ordinance XXIX of 1943
and in order to attract the operation of s. 12 it was necessary to show that the
proceedings which were pending before the Special Court under West Bengal Act
XII of 1952, were pending before a Court other than a Special Court on 9th
April 1952. The expression "proceedings in a court other than a Special
Court" occurring in s. 12 means and refers to proceedings relating to The
trial of a case in the original court and not to proceedings in appeal. The
object of the legislature in enacting s. 12 was that cases pending before an
ordinary or a non-special court at the date when the Ordinance came into
existence and which were being tried in the ordinary way should not be brought
to trial or tried by the Special court in spite of the provisions of the new
section 4 (1) introduced by the Ordinance into the Act.
This reason manifestly could have no
application to appellate proceedings for there could be no question of cases
pending in appeals being allotted to special courts for trial. How the case was
to proceed further, if the appellate court directed a rehearing would depend
entirely on the order which the appellate court passed and was competent in law
to pass.
Accordingly, as the High Court did not acquit
the accused or make an order of discharge but simply set aside the conviction
and sentence directing the retrial of the cases by a competent court, the only
court which was competent to try these cases would be the Special Court under
Act XII of 1952 and its jurisdiction could not be ousted as the order of the
High Court itself proceeded on the footing that no trial could be held by the Tribunal
constituted under Ordinance XXIX of 1943.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 83 of 1954.
Appeal by Special Leave granted by the
Supreme Court by its Order dated the 14th September, 1953 from the Judgment and
Order dated the 5th June, 1953 of the High Court of Judicature for the State of
West Bengal at Calcutta in Criminal Revisions Nos. 1205 and 1204 of 1952.
Ajit KumarDutta, (A. K. Dutt and S. Ghose,
with him), for the appellants. C. K. Daphtary, Solicitor-General of India, (P.
A. Mehta, P. G. Gokhale and N. C. Chakravarty, with him), for the respondent.
1027 1954. November 30. The Judgment of the
Court was delivered by MUKHERJEA, J.-This appeal, which has come before us on
special leave, is directed against a judgment of Chunder, J. of the Calcutta
High Court dated the 5th of June, 1952, rejecting the appellants application
for quashing of certain criminal proceedings started against them and pending
before a special court constituted under a notification of the Government of
West Bengal issued under West Bengal Act XII of 1952. To appreciate the
contentions raised on behalf of the appellants it would be necessary to narrate
a few antecedent facts. The two appellants along with four other persons, one
of whom as died since then, were placed on trial before the First Special
Tribunal, Calcutta, which was one of the Tribunals constituted under the
Criminal Law Amendment Ordinance XXIX of 1943 passed by the Governor General of
India under section 72 of the Government of India Act, 1935, on charges of
bribery as also of conspiracy under section 120-B of the Indian Penal Code,
read with section 420 of the Code which was later on replaced by section 409.
The trial ended in conviction of all the
accused, though not on all the charges brought against them and by its judgment
dated the 26th May, 1952, the Tribunal sentenced them to various terms of
imprisonment and fine.
It may be convenient to refer here to two of
the provisions of Ordinance XXIX of 1943 under which the trial was held and
which are material for our present purpose. One of these relates to the
composition of the special tribunal and section 4(1) of the Ordinance lays down
that "a special tribunal constituted under this Ordinance shall consist of
three members". This provision was modified by section 3 of Ordinance I of
1950 which lays down that so far as the First Special Tribunal at Calcutta is
concerned, for the words "three members" occurring in section 4(1),
the words "two members" shall be substituted. The other material
provision is contained in section 5(1) of the Ordinance as it stood after the
amendment of 1946, 132 1028 read with sub-section (2) of the same section.
Section 5 (1) provides that "the Central Government may from time to time,
by notification in the official Gazette, allot cases for trial to each special
tribunal"-, and section 5(2) lays down that "the special tribunal
shall have jurisdiction to try the cases for the time being respectively
allotted to them under sub-section (1) in respect of such of the charges for
offenses specified in the schedule as may be preferred against the several
accused". The result, therefore, is that although a number of offenses are
specified in the schedule, it is not all cases of these offenses which are to be
tried by the special tribunal but only such of them as the Central Government
may, in its discretion, allot to the tribunal.
To proceed with the narrative of facts, there
were separate appeals taken by all the five accused against the judgment of the
special tribunal, mentioned above, to the High Court of Calcutta under the
provisions of the Ordinance itself.
The appeals were heard by a Division Bench
consisting of Chakravartti, C. J. and Sinha, J. The learned Judges did not
enter into the merits of the cases but allowed the appeals on two points of law
which, according to them, vitiated the entire trial. It was held in the first
place that the special tribunal, which consisted of three members to wit Mr.
Barucha, Mr. Joshi and Mr. Bose at the material time, legally ceased to exist
on and from the 16th of December, 1949, when Mr. Bose, one of the members,
resigned. It is true that the Amending Ordinance I of 1950 was passed on the 11th
of January, 1950, but as the tribunal was not reconstituted as a fresh tribunal
by means of a fresh notification in the gazette as required by section 3 of the
new Ordinance, the two remaining members could not be regarded as a legally
constituted tribunal within the meaning of the Ordinance and all the
proceedings before it after the resignation of the third member, including the
judgment delivered by it were void.
It was held in the second place that as
section 5(1) of the Ordinance XXIX of 1943 as it stood after the amendment of
1946, read with section 5(2) autho1029 rises a special court to try not all
cases of offences specified in the schedule but only those which the State
Government may in its discretion direct it, became repugnant to Article 14 of
the Constitution as soon as the Constitution came into force. The trial held
after the 26th of January, 1950, was therefore bad and although no evidence was
taken after that date the discriminations in the shape of departures from
normal procedure were involved even in the stage of arguments and pronouncement
of judgment against the accused, and the conviction and sentence must
consequently be set aside.
After holding the trial to be bad by reason
of the illegalities mentioned above, the learned Judges proceeded to consider
what should be the final order passed in the appeals. Having regard to the
voluminous evidence on the record, they did not consider it proper to make an
order of acquittal in these cases. They indeed felt distressed by the fact that
the accused had already undergone the strain of a protracted and harassing trial
for nearly four years but held that such considerations could not weigh with a
court so as to restrain it from making an order which the law requires. The
order passed by the High Court was that the accused should be retried in
accordance with law by a court of competent jurisdiction, it being left to the
State Government to decide whether actually the trial should be proceeded with
or not. This order was pronounced on the 29th of April, 1952. On the 30th of
July, 1952, the West Bengal Act XII of 1952 came into force following an
ordinance laying down similar provisions which amended in certain respects the
provisions of the West Bengal Criminal -Law Amendment (Special Courts) Act of
1949. On the 22nd August, 1952, three special courts were constituted by a
notification of the Government of West Bengal under section 4(2) of this Act of
1949, one of them being described as the West Bengal Second Special Court; and
by a notification dated the 19th of September, 1952, Mr. N.L. Some was
appointed Special Judge to preside over this Court. On the 8th of October,
1952, a notification was issued allotting the case against the 1030 Appellants
and their co-accused to this second court for trial and on the 12th of
November, 1952, a fresh petition of complaint was filed by one Kalidas Burman,
Inspector of Police, Delhi Special Establishment, against the accused under
section 120-B, read with section 409 and sections 409 and 109 of the Indian
Penal Code. On the 21st of November following, summonses were issued in pursuance
of the complaint and within 6 days from that date all the five accused moved
the High Court of Calcutta and -rules were issued in their favour calling upon
the State Government to show cause why the process issued on the basis of the
petition of complaint filed by Kalidas Burman should not be quashed. All these
rules came up for hearing before Chunder, J. sitting singly and the rules were
discharged on the 5th of June, 1953. The appellants, who were the petitioners
in Revision Cases Nos. 1204 and 1205 of 1952, prayed for leave to appeal to
this court against this order of the single Judge which was rejected. They
subsequently obtained special leave from this court, on the strength of which
the case has come before us.
The substantial point raised by Mr. Dutt, who
appeared in support of the appeal, is, that section 12 of the West Bengal Act
XII of 1952 operates as a bar to the trial of this case under the Act. It is
argued that under orders of the High Court passed in the appeals, it is the
original case, which was commenced before the First Special Tribunal, Calcutta,
under the Central Ordinance XXIX of 1943 which is being retried by the special
court constituted under the West Bengal Act XII of 1952. This case, it is
pointed out, was pending before the High Court on the 9th April, 1952, which
was the date of the commencement of the West Bengal Ordinance preceding the Act
and to such cases the provisions of the Act have been expressly made
inapplicable by section 12.
It is to be noted that the West Bengal Criminal
Law Amendment (Special Courts) Act, (Act XXI of 1939) was amended by the West
Bengal Ordinance VIII of 1952 which came into force on the 9th of April, 1952,
and this Ordinance was subsequently replaced by 1031 West Bengal Act XII of
1952. Section -12 of the Act provides as follows:
"Nothing in this Act shall apply to any
proceedings pending on the date of the commencement of the West Bengal Criminal
Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than
a special court".
Mr. Dutt contends that the present case is
nothing but a continuation of the original case which was tried by the First
Special Tribunal of Calcutta under the Central Government Ordinance XXIX of
1943 and against the decision of which Tribunal appeals were taken to the High
Court. The appeals were pending before the High Court when Ordinance VIII of
1952 was passed and consequently section 12 of Act, XII of 1952 would exclude
the application of the provisions of the Act to the present case.
For a proper determination of the question it
would be necessary first of all to examine the precise scope and object of
section 12 of the West Bengal Act XII of 1952.
This, as said above, has only amended certain
provisions of the earlier Act XXI of 1949. Act XXI of.1949 provides for the
establishment of special courts presided over by special Judges and they are to
follow a particular procedure in the trial of cases -assigned to them which
differs in certain respects from the procedure laid down in the Code of Criminal
Procedure and to that extent is prejudicial to the accused. Section 4(1) of Act
XXI of 1949, as it stood before the amendment of 1952, provided that "the
Provincial Government may from time to time by notification in the official
gazette allot cases for trial to a special Judge";
and subsection(2) of the section laid down
that "the special Judge shall have jurisdiction to try cases for the time
being allotted to him under sub-section (1) in respect of such of the charges
for the offences specified in the schedule as may be preferred against the
several accused, and any such case which is at the commencement of this Act or
at the time of such allotment pending before any court or any other special
Judge shall be deemed to be transferred to the special Judge to whom it is
allotted". The result of 1032 the combined operation of the two
sub-sections therefore was that all the cases of offences specified in the
schedule were not to be tried by a special court but those only could be tried,
which the Provincial Government in its discretion might allot to it. Further
there was nothing to prevent the Provincial Government from allotting a case
already pending before an ordinary court to a special court constituted under
this Act. A provision which allows the Government an unfettered discretion to
choose from amongst the cases of offences, specified in the schedule to the
Act, which of them, it would allot to the special tribunal for trial according
to the special procedure, the rest being left to be tried in the ordinary way,
became, after the coming into force of the Constitution, open to the charge of
being obnoxious to the equal protection clause embodied in Article 14 of the
Constitution.
This defect was removed and the chance of
discrimination eliminated by the Amending Ordinance VIII of 1952, which was
afterwards enacted into Act XII of 1952. Section 4 of the Ordinance replaced
section 4 of the Act and sub-section (1) of this section laid down that
"notwithstanding anything contained in the Code of Criminal Procedure,
1898 or in any other law, the offences specified in the schedule shall be
triable by special courts only". There was no provision in this new
section of the Ordinance, corresponding to section 4(2) of the Act under which
cases of offences specified in the schedule pending before ordinary courts
could be transferred to special courts. This in sense was anomalous and as the
position created by section 4(1) of the Ordinance was that offences specified
in the schedule were compulsorily triable by special courts, a difficulty could
legitimately arise with regard to cases pending before ordinary courts and the
question could be raised whether the ordinary courts would have jurisdiction at
all to proceed with trial of these cases after the enactment of section 4(1) of
the Ordinance. It seems clear that in order to obviate this difficulty section
12 was introduced in Act XII of 1950, which replaced Ordinance 1033 VIII of
1952, and the section expressly provides that the Act would not apply to
proceedings pending before any court other than a special court on the date
that Ordinance VIII of 1952 came into force. All these pending cases,
therefore, could not be allotted to or tried by a special court under the Act.
The question, for our consideration is whether the prohibition created by
section 12 is attracted to the facts of the present case.
Now what was pending before the High Court on
the 9th April, 1952, were the appeals taken by the appellants and their co accused
against the judgment of the First Special Tribunal, Calcutta, constituted under
the Central Ordinance XXIX of 1943. We may agree with the learned counsel for
the appellants that the High Court not being a special court, the provisions of
section 12 of the Act could not apply to these proceedings, but this by itself
would be of no assistance to the appellants-. To attract the operation of
section 12, it is necessary to show that the proceedings which are now before
the Special Court under West Bengal Act XII of 1952 were pending before a court
other than a special court on the 9th April, 1952. In our opinion the
expression "proceedings in a court other than a special court"
occurring in section 12 means and refers to proceedings relating to trial of a
case in the original court and not to proceedings in appeal. If we look to the
provisions of Act XII of 1952, we would find that all of them relate to matters
concerning constitution, jurisdiction, and powers of the special courts and the
special rules of procedure which they are to apply in the trial of cases, and
not one of them has any reference to an appeal. The object of the legislature
in enacting section 12, as stated above, was that cases pending before an
ordinary or a non-special court at the date when the Ordinance came into
existence and which were being tried in the ordinary way, should not be brought
on to or tried by the special courts in spite of the provision of the new
section 4(1) introduced by the Ordinance into the Act. This reason manifestly
could have no application to appellate proceedings, for there 1034 could be no
question of cases pending in appeals being allotted to special courts for
trial. How the case is to proceed further if the appellate court directs a
rehearing would depend entirely on the order which the appellate court passes
and is competent in law to pass. If the appeal court directs retrial by an
ordinary court, as the court competent to try the case or that is the
implication of the order, the jurisdiction of the special court would be barred
not by reason of section 12 of the Special Act but by reason of the order made
by the appeal court. In our opinion the pendency of the appeals before the High
Court on the relevant date could not attract the operation of section 12, but
as the appeals were taken to the High Court from the decision of a court other
than a special court as contemplated by Act XII of 1952, whether the retrial
directed by the High Court could be held by a court under Act XII of 1952,
would depend on the nature and effect of the order which the High Court has
made.
The High Court did not acquit the accused,
nor make any order of discharge in their favour. They set aside the conviction
and sentence and directed the retrial of the accused by a competent court in
accordance with law if the Government chose to proceed against them. We agree
with Mr. Dutt that ordinarily an order of retrial means a further trial by the
same Tribunal which took cognizance of the case and before which the case must
be deemed to be pending until it is finally disposed of in one way or other
recognized by law. In this case the accused were neither acquitted, nor
discharged, but the High Court set aside the proceedings of the special court
on the ground that the trial held by it became void on and from the 26th
January, 1950, as section 5(1) of the Ordinance under which the allotment of
the case was made and the Tribunal acquired jurisdiction to try it became void
and inoperative as soon as the Constitution came into force, by reason of its
being in conflict with Article 14 of -the Constitution. The Special Tribunal,
therefore, from which the appeals came to the High Court must be held according
to the decision of 1035 the High Court itself to have lost seisin of these
cases after the 26th January, 1950, and they had no jurisdiction to proceed
with the trial. As the High Court directed these cases to be tried by a
competent court, they could not possibly be sent back for trial to the Special
Tribunal assuming that any such Tribunal existed or could be constituted by the
Central Government. The only court which was competent to try these cases would
be the special court under Act XII of 1952 and its jurisdiction could not be
ousted as the order of the High Court itself proceeded on the footing that no
trial could be held by the Tribunal constituted under Ordinance XXIX of 1943.
The jurisdiction of the special court not being ousted by section 12 of the Act
or by the order of the High Court, we are unable to hold that the proceedings
before it should be quashed.
The result is that the appeal is dismissed.
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