# [1952] 1 S.C.R. 710

- **Citation:** [1952] 1 S.C.R. 710
- **Court:** Supreme Court of India
- **Decided:** 1949-08-06
- **Bench:** PATANJALI SAsTRI C.J, Mehr Chand Mahajan, MuKHERJEA, DAs, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1952-1-s-c-r-710-61
- **Pages:** 28

## Headnote

Constt.tution of India,
.tlrts. 13, 14-Bombay Public Safety
Measures
Act, 1947, s. 12-Provision empowering Government to
refer 'cases'
for trial by
Special
Judge-Validity-Discriminatior>
-Proceedings commenced before 26th January, 195(), before Special
fudge-Procedure
discriminatory-Continuation
of
trial
under
special
procedure-Validity of trial-Applicability
of
Constitution
to pe"nding trials.
field, pe1· :MAHAJAN,
MuKHERJEA,
DAs and
CHANDRASEKHAR/.
ArYAll, JJ. (PATANJAL! SASTR! C. J.
dissenting).-Section 12 of the
Bombay Public Safety Measures Act, 1947; in so far, at any rate~
as it authorises
the Govern1nent to direct particular "cases" to
be tried by a Special Judge appointed under the Act does not
purport to proceed
on any
classification and therefore
contravenes Art. 14 of the Constitution and is void under Art. 13 on the
pr!aciples laid down in the cases of State of Bengal
v., Anwa1
Ali Sarkar ([1952] S.C.R. 284) and Kathi Raning Raf{)at v. Th,
State of Saurashtra ([1952) S.C.R. 435).
'fhe appellants
who
were
accused
of
having
con11nitted
xnurder
and other serious
offences
were directed by the Governn1ent of Bombay by an order made on the 6th August, 1949, to be
tried
under the Bombay Public Safety Measures Act by a Special
JuJgc
appointed under
the Act,
charges were fra1ned
against
then1 on the 13th January,
1950, and they
\Vere convicted in
March,
1950. On
appeal it
was contended
before
the
High
Court that the trial and conviction \Vere illegal as the Bombay
Public Safety
Measures Act was void under Art. 13 read \Vith
r\rt.
14 of the Constitution
which
came into force on the 26th
]:Jnuary, 1950, but the 1-Iigh Court held that as the procee<lings:
a.gain~t the accused had commenced before the Constitution, the
provisions of Arts. 13 and 14 did not apply and the conviction
\Vas not illegal.
Held, by a ma1or1ty, that although substantive rights and
liabilities acquired or accrued before the
date of the Constitution
remain enforceable, it caqnot be held that after that date, thosc-
-
rights or liabilities must be enforced
under the particular pro1-' ~
cedure that \vas in force before that date, although it has since
that date been repealed or come
into conflict
with the fundamental • right to equal protection of the laws guaranteed by the
S.C.R.
SUPREME COURT REPORTS
711
Constitution, as there is no vested right in procedure. The fact
of
reference of "cases" to the Special
Judge before the Con1titution came
into force has no
reasonable
relation
to the
objects sought
to be achieved by
the Act, the
discrimination
therefore continued after the Constitution came into force and
~uth continuation of the application of the discriminatory procedure to the cases of the appellants after the date of the Constitution constituted a b.-each of the fundamental right guaranteed by Art. 14, and the appellants were therefore entitled to be
tried
under the ordinary procedure
after
the
date
of
the
Constitution.
PATANJALI SASTRI
C. ].
(contra).-Granting that s.
12
of
the Bombay Act must, in view of
the decision in
Anwar Ali
Sarkar' s case, be held to be discriminatory and void in so far as
it empowers the State Government to refer individual cases to :i
Special Judge for ·trial, the trial of
the appellants which had
validly started before the Special Judge who had be~n empower·
ed to try the case cannot be vitiated by the Constitution subsequently coming into force.
The provisions
of
the
Constitution
relating to fundamental rights have no retrospective operation
and do not affect a criminal prosecution commenced before the
Constitution came into force.
The jurisdiction of the Special Judges validly created and
exercised before tl1e Constitution and their competence to try
the cases referred to them cannot be affected by the special pro-.
ccdure
becoming
discriminatory.
The
correct
view
is
that
Art. 14 does lnot affect
pencJling trials even in matters of
procedure.
Moreover the appellants against whom proceedings
had been commenced before th

## Text

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1952
MRy 20
710
SUPREME COURT REPORTS
LACHMANDAS KEW ALRAM AHUJA
AND ANOTHER
fl.
[1952]
THE STATE OF BOMBAY.
[PATANJALI SAsTRI C.J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA AIYAR, JJ.]
Constt.tution of India,
.tlrts. 13, 14-Bombay Public Safety
Measures
Act, 1947, s. 12-Provision empowering Government to
refer 'cases'
for trial by
Special
Judge-Validity-Discriminatior>
-Proceedings commenced before 26th January, 195(), before Special
fudge-Procedure
discriminatory-Continuation
of
trial
under
special
procedure-Validity of trial-Applicability
of
Constitution
to pe"nding trials.
field, pe1· :MAHAJAN,
MuKHERJEA,
DAs and
CHANDRASEKHAR/.
ArYAll, JJ. (PATANJAL! SASTR! C. J.
dissenting).-Section 12 of the
Bombay Public Safety Measures Act, 1947; in so far, at any rate~
as it authorises
the Govern1nent to direct particular "cases" to
be tried by a Special Judge appointed under the Act does not
purport to proceed
on any
classification and therefore
contravenes Art. 14 of the Constitution and is void under Art. 13 on the
pr!aciples laid down in the cases of State of Bengal
v., Anwa1
Ali Sarkar ([1952] S.C.R. 284) and Kathi Raning Raf{)at v. Th,
State of Saurashtra ([1952) S.C.R. 435).
'fhe appellants
who
were
accused
of
having
con11nitted
xnurder
and other serious
offences
were directed by the Governn1ent of Bombay by an order made on the 6th August, 1949, to be
tried
under the Bombay Public Safety Measures Act by a Special
JuJgc
appointed under
the Act,
charges were fra1ned
against
then1 on the 13th January,
1950, and they
\Vere convicted in
March,
1950. On
appeal it
was contended
before
the
High
Court that the trial and conviction \Vere illegal as the Bombay
Public Safety
Measures Act was void under Art. 13 read \Vith
r\rt.
14 of the Constitution
which
came into force on the 26th
]:Jnuary, 1950, but the 1-Iigh Court held that as the procee<lings:
a.gain~t the accused had commenced before the Constitution, the
provisions of Arts. 13 and 14 did not apply and the conviction
\Vas not illegal.
Held, by a ma1or1ty, that although substantive rights and
liabilities acquired or accrued before the
date of the Constitution
remain enforceable, it caqnot be held that after that date, thosc-
-
rights or liabilities must be enforced
under the particular pro1-' ~
cedure that \vas in force before that date, although it has since
that date been repealed or come
into conflict
with the fundamental • right to equal protection of the laws guaranteed by the
S.C.R.
SUPREME COURT REPORTS
711
Constitution, as there is no vested right in procedure. The fact
of
reference of "cases" to the Special
Judge before the Con1titution came
into force has no
reasonable
relation
to the
objects sought
to be achieved by
the Act, the
discrimination
therefore continued after the Constitution came into force and
~uth continuation of the application of the discriminatory procedure to the cases of the appellants after the date of the Constitution constituted a b.-each of the fundamental right guaranteed by Art. 14, and the appellants were therefore entitled to be
tried
under the ordinary procedure
after
the
date
of
the
Constitution.
PATANJALI SASTRI
C. ].
(contra).-Granting that s.
12
of
the Bombay Act must, in view of
the decision in
Anwar Ali
Sarkar' s case, be held to be discriminatory and void in so far as
it empowers the State Government to refer individual cases to :i
Special Judge for ·trial, the trial of
the appellants which had
validly started before the Special Judge who had be~n empower·
ed to try the case cannot be vitiated by the Constitution subsequently coming into force.
The provisions
of
the
Constitution
relating to fundamental rights have no retrospective operation
and do not affect a criminal prosecution commenced before the
Constitution came into force.
The jurisdiction of the Special Judges validly created and
exercised before tl1e Constitution and their competence to try
the cases referred to them cannot be affected by the special pro-.
ccdure
becoming
discriminatory.
The
correct
view
is
that
Art. 14 does lnot affect
pencJling trials even in matters of
procedure.
Moreover the appellants against whom proceedings
had been commenced before the Special Judge, were not in the
same situation as others and there was nothing discriminatory in
a law which permits them to be tried under the special procedure
which was applicable to them when the proceedings were started
against them.
CRIMINAL APPELLATE Jumsn1cT10N:
Cases Nos. 20
and 21 of 1950.
Appeals under Art. 132 (1) of the Constitution of
India from the judgment and order dated the 19th
May, 1950, of the High Court of Judicature of Bombay (Dixit and Shah, JJ.) in Confirmation Case No. 4
of 1950 and Criminal Appeals Nos. 190 and 199 of
1950, arising out of judgment dated the 13th March,
1950, of the Court of the Special Judge at Ahmedabad
in Special Cases Nos. 2 and 3 of 1949.
N. C. Chatterjee and Ram Lal Anand (Hardyal
Hardy and S. L. Chibber, with them) for the appellants.
1952
Lachmandas
Kewalram
Ahuja
and Another
v.
The State of
Bombay.
1952
Lachmandas
Kewalram
Ahuja
and Anl!ther
v.
The State of
Bombay.
Patanjali
Sastri C. /.
712
SUPREME COURT REPORTS
M. C. Setalvad, Attorney-General for India
Joshi, with him) for the respondent.
[1952]
(G. N.
A. A. Peerbhoy and J. B.
Dadachanji for the
Intervener.
1952.
May 20.
The judgment of Mehr Chand
Mahajan,
Mukherjea,
Das
and
Chandrasekhara
Aiyar, JJ. was delivered by Das J. Patanjali Sastri
C.J. delivered a separate dissenting judgment.
PATANJALI
SASTRI C.J.-I regret
I am unable to
agree with the reasoning and conclusion of my learned
brother
Das
J.
whose judgment I have had the
advantage of reading.
The appellants were convicted and sentenced
to
death and varying terms of imprisonment by the
Special Judge, Ahmedabad, on charges of murder and
other offences under the Indian Penal Code,. the Arms
Act and the Bombay Police Act.
The Special Judge
was appointed by a notification ..issued
under the
Bombay
Security Measures
Act,
1947,
(hereinafter
referred to as the impugned Act) and on August 6,
1949, the State Government, in exercise of the powers '
conferred by section 12 of the impugned Act, directed
the Special Judge to try the case of the appellants who
were implicated in what was known as the Central
Bank Robbery Case.
Charges were framed on January
13, 1950, without any preliminary enquiry and committal by a Magistrate which had been dispensed with
by the impugned Act, and seventeen witnesses for the
prosecution were examined before January 26,
1950,
when the Constitution came into force.
The proceedings continued, and after the examination of sixty
witnesses in all, ended in the conviction of the appellants on March 13, 1950.
Separate
appeals were preferred by the
present
appellants to the High Court which, however, confirmed the conviction and sentence in each case.
An
objection that the trial was illegal as the
im~ug;ied
Act was void under article 13 ( 1) of the Const1tut10n;
read with article 14, was overruled on the ground that
. .
•
' ...
S.C.R.
SUPREME COURT REPORTS
713
those provisions had no retrospective operation and
did not affect proceedings already started "in the Court
of the Special Judge.
The
learned Judges followed
the decision of a Special Bench of their own Court in
In re Keshav Madhav Menon(1), which has since been
affirmed by this Court in (1951] S.C.R. 228.
It is urged on behalf of the appellants that the
decision relied on by the High Court is distinguishable
and that the present case is governed by
the decision
of this Court in The State of West Bengal v. Anwar Ali
Sarkar(2) to the effect that section 5 of the Bengal Act
(which is in identical terms with section 12 of the
impugned Act) is discriminatory and void in so far, at
any rate, as it empowers the State Government to direct
"cases" to be tried by a Special Court under a special
procedure.
Acoorldingly, 1t was claimed
that
the
Special Judge had no jurisdidion to try the appellants
applying
the
special
procedure
prescribed
by
the
impugned Act.
Granting, however, that ·section 12 of the impugned
Act must, in view of the decisio.n in Anwar Ali Sarkar's
case(2), be held to be disi;riminatory and void in so
far as it empowers the State Government to refer individual cases to a Special Judge for trial, it does not
seem to me to follow that the trial of the appellants,
which had validly started before the Special Judge
who had been duly empowered to try the case, is
vitiated by reason of the Constitution subsequently
coming into force. It is to be noted that the West
Bengal case(2 ) was argued on the basis that article 14
of the Constitution was applicable to the proceedings
from their inception, although the notification directing the trial of some of the persons accused in that
case was issued on the day before the commencement
of the Constitution. The position here is different.
The appellant's case was sent to the Special Judge for
trial by notiiication dated 6th August, 1949, and the
Judge took cognisance of it, framed the charges and
proceeded
with the trial to a considerable extent
before the commencement of the Constitution on 26th
(1) [1950] 52 Born. L.R. 540.
( 2) {1952] S.C.R. 284.
3-8 S.C.India/71
1952
Lachmandas
Ki:walram
Ahuja
tmd A notlli:r
v.
T ht: State of
Bombay.
Patanjali
Sastri C. f.
1952
Lachmandas
Kewalram
Ahuia
and Another
v.
The State of
Bombay.
Pataniali
Sas1ri C. J, .
714
SUPREME COURT REPORTS
[1952]
January, 1950.
There could be no question, therefore,
of the appellants' fundamental right under article 14
being infringed up to that point, as it has been held by
this court in Keshavan Madhava Menon's case(') that
the provisions of the Constitution relating to fundamental rights have no retrospective operation and do
not affect a criminal prosecution commenced before
the Constitution came into force.
On and after 26th January, 1950, the appellants, no
doubt, had the right to the equal protection of the
law; but, as has been repeatedly pointed out, that right
only meant that the State, including the executive and
the legislature, should apply the same law, substantive and procedural, to all persons alike in the same
situation without discrimination.
It is said that after
the commencement of the Constitution persons who
commit the same offences with which the appellants
stood charged would, according to Anwar Ali Sark_ar's
case(") not be liable to be tried by the Special Judge
under the special procedure and, if so, the trial of the
appellants, too, could not be continued by the Special
Judge under ~uch procedure after 26th January, 1950,
because such of the departures from the normal procedure of trial under the Criminal Procedure Code as
were applied to the appellants during· the rest of their
trial; being disadvantageous to them in some respects,
involved discrimination against them. It is, therefore,
daimed that the continued application of such discriminatory procedure after the Constitution came
into
force rendered the trial and the resulting conviction
illegal.
I am unable to agree.
In the first place, as
already pointed out, equal protection of
the
laws
postulates
persons
in
the
same
situation
and
in
the same
circumstances
claiming
that
the
same law should be applied to them. - Can it be
said that the appellants, whose trial by the Special
Judge
had
been
lawfully
commenced
and
was
pending
at the commencement of the Constitution,
were in the same situation with persons who committed the same offences after the Constitution came into
{') [1951] S.C.R. 228.
( 2 ) [1952] S.C.R. 284.
S.C.R.
SUPREME COURT REPORTS
715
force ? It seems to me that the situation
and circumstances
are
different
in
the
two
cases
and
no
compla'int of discriminatory treatment by reason only
of the trial having been continued under the special
procedure can be sustained, even assuming that
the
ordinary
procedure
under
the
Criminal
Procedure
Code became applicable to the appellants on and after
26th January, 1950.
Such assumption, however, seems to be open to question. Section 1, sub-section (2), of the Criminal Procedure Code enacts that "Nothing herein contained shall
affect ........ any special jurisdiction or power conferred or any special form of procedure prescribed by any
other law for the time being in force ...... " The
jurisdiction conferred on the Special Judge
by
the
impugned Act, which, as pointed out already, was
perfectly valid and fully operative down to the 26th
January, 1950, thus remained unaffected and application to the appellants of the ordinary procedure prescribed by the Code was excluded.
It cannot, therefore, be said that on the 26th January, 1950, the appellants were in a position to claim that they were entitled
to
be
tried
under
the
ordinary
procedure
like
those who committed the same offences after that date
or who, having committed them before such date, had
not been directed to be tried by the Special Judge. It
was said that section 1 (2) of the Criminal Procedure
Code pre-supposes a valid law conferring a special jurisdiction or prescribing a special form of procedure and,
inasmuch as such parts of the special procedure as
could still be applied to trials continued after the commencement of the Constitution are void under article
13 (1) read with article 14, section 1 (2) of the Code could
not stand in the way of the appellants being tried under
the ordinary procedure. This argument seems to me
to beg the question. It assumes that the special procedure is discriminatory and void to the extent to which
it could have been applied to the trial of the appellants after 26th January,
1950.
But the assumption
would not be valid unless the appellants could be tried
1952
Lachmandu
Kewalram
Ahuja
and Another.
v.
The Stat11 of
Bombay.
Patanjali
Sastri C. /.
h7. 1952
Lachmandas
Kewalram
Ahuia
and Another
v.
The State of
Bombay.
Patanjali
.Sastri C. /.
716
SUPREME COURT REPORTS
[1952]
under the normal procedure after 26th January, 1950,
in which case alone they would say "Why not try us
lUlder
the Code; why discriminate ?"
But, having
regard to section 1(2) of the Code, the normal procedure
would become applicable only if the special procedure
is excluded as being discriminatory and void.
The
argument thus proceeds in a circle.
Again, it is diflicult to see on what principle the
jurisdiction of the Special Judge, validly created and
exercised over the appellants' case; could cease
to
continue on and after 26th January, 1950. According
to the appellants' contention, the special procedure
prescribed by the impugned Act became discriminatory and void after 26th January, 1950, and, therefore,
inapplicable to what remained of their trial.
But,
could this circumstance affect the competence of the
Special Judge to try their case of which he had validly
taken cognisance? In Keshoram Poddar v. Nundo Lal
Mullick(') the Judicial Committee of the Privy Council held that the cessation of the jurisdiction of a Rent
Control Tribunal after 31st March, 1924, over properties beyond a certain rental value did not affect its
power to deal with a case after such cessation if the
case was within its jurisdictioo when it was filed and
related to a period prior to such cessation. Their Lordships observed : ''The application of the Act is when
the ·parties begin to move under it This was done in
the present case before March 1924. The rest is merely
the working out of the application".
The
position
here seems to me to be closely analogous. The Special
Judge was
competent to try
the
appellants'
case
when the trial commenced before 26th January, 1950,
and the impugned Act was validly applied to the case.
The rest was merely working out the application of
the impugned Act.
I find it difficult to see why the
competency of the Special Judge to try the case should
cease after 26th January, 1950, any more than that of
the Rent Contrd!. Tribunal to deal with a pending
matter after 31st March, 1924, when its jurisdiction
was restricted. ·
(') [1927] 54 I.A. 152.
"·
•
S.C.R.
SUPREME COURT REPORTS
717
If, then, the jurisdiction of the Special Judge to
continue the trial of the appellants remained unaffected by the advent of the Constitution, it would be
impracticable for the Judge to switch the pending
trials to a different procedure from 26th January, 1950,
so as to give effect to the equal protection claims of
under-trial prisoners.
The impugned Act, for instance,
enacts that "NotwithstancJjng anything contained in
the Code the trial of offences before a Special Judge
shall not be by jury or with the aid of assessors"
(s. 20).
The trials having been held so far without a
jury or assessors as the case may be, it would obviously be impossible in such cases to continue them after
26th January, 1950, with a jury or with the aid of
assessors, where such trials are required to be so conducted under the ordinary procedure.
Again,
the
impugned Act provides that no case shall be transferred from any Special Judge, a necessary consequence
of the exclusive jurisdiction of the Special Judge and
the special mode of proceeding prescribed for him. If
a right of transfer under section 526 of the Code were to
be recognised as accruing after 26th January, 1950, to
persons undergoing trial before the Special Judge, the
scheme of trial by Special Courts may well break
down. The alternative courses open to the Court would,
therefore, seem to he either to hold that article 13 (1),
read with article 14, does not affett pending trials even
in respect of procedural matters as it has been held not
to affect such trials in respect of substantive rights and
liabilities accrued before the date of the Constitution
in Keshavan Madhava Menon's case(1), or to go back
on that decision and give those provisions of the
Constitution
retrospective effect.
I am clearly
of
opinion that the principle of the above-said decision
must rule the present case. That principle has been
stated thus: "Article 13 (1) cannot be read as obliterating the entire operation of the inconsist~nt laws, or to
wipe them out altogether from the statute-book, for,
to do so will be to give them retrospective effect
which, we have said, they do not possess.
Such laws
exist for all past transactions and for enforcing a/.l
. (1) (1951 J S.C.R. 228.
1952
~. ,
Lachmand11s
Kewalram
Ahuja
and Another
v.
The State of
Bombay.
Patanjali
Sastri C. /.
1952
Lachmamlas
Kewal ram
Ahuia
uzd Another
v.
The State of
Bombay.
Patanjali
Sastri C. /.
718
SUPREME COURT REPORTS
[1952]
rights and liabilities accrued before the date of the
Constitution".
(Italics mine).
Indeed, the last few
words are apt to cover the present case, though, as a
party. to that decision, I am sensible that we did not
have in· mind a case precisely like the one now before
us.
But, it is well to remember that over-fine distinctions sometimes lead to unsuspected traps.
In the foregoing discussion I have assumed that such
departures from the normal procedure as were still
applicable to what remained of the appellants' trial
after the 26th January, 1950, were so materially prejudicial to them as to amount to a denial of the equal
protection of the laws within the meaning of article 14
of the Constitution.
I am, however, by no means
satisfied that that is the position. One of these deviations relates to the recording of evidence. The Special
Judge is empowered to record only a memorandum of
the substance of the evidence of each witness examined, whereas the Criminal Procedure Code requires
the evidence to be recorded in full. Another relates
to the summoning of witnesses for the defence, the
Special Judge being given a discretion to refuse to summon a witness "if satisfied after examination of the
accused that the evidence of such witness wijl not be
material" (s. 13), while under section ?57 (1) of the Code
the Magistrate has the discretion to refuse to summon
witnesses if he considers that the application
for the
issue of process for compelling the attendance of any
witness is made "for the purpose of vexation or delay
or for defeating the ends of justice". And lastly, the
impugned Act provides that no court shall have jurisdiction to transfer any case from any Special Judge (section 18 (3) ), whereas transfers under section 526 of the
Code are allowed on certain specified grounds. The more
important departures from the procedure under the
Code such as dispensation of preliminary enquiry and
committal and the elimination of jury and assessors
had already been applied, and validly applied, to the
trial of the appellants before the Constitution
came
into force, and there can be no question of such departures vitiating the trial.
I am unable to regard the
•
•
j,
S.C.R.
SUPREME COURT REPORTS
719
procedural ·variations in the recording of evidence and
the summoning of witnesses as so serious as to amount
to a denial of the equal protection of the laws within
the meaning of article 14. Even if the appellants were
to be tried under the normal procedure · of the Code
after 26th January, 1950, the omission to record the
evidence in full and the refusal to summon a witness in
the circumstances mentioned in section 13 may well be
regarded as mere irregularities curable under section
537 of the Criminal Procedure Code. As regards transfer,
it does not, as already pointed out, fit in with the
scheme of trial before a Special Judge, and, unless any
system of trials by Special Courts is to be condemned
as violative of article 14--the decision of this Court in
Kathi Raning Rawat v.
The State of Saurashtra(1)
shows that it can be validly instituted in appropriate
circumstances-a
prohibition of
transfer
cannot be
regarded as falling with'in the inhibition of article 14.
I have emphasised elsewhere, and I do so again, that
in applying the dangerously wide and vague language
of the equality clause to the concrete facts of life,
a doctrinaire approach should be avoided.
In all the circumstances of this case, I do not feel
impelled · to set aside the trial and conviction of the
appellants and I accordingly dismiss the appeals.
DAs J.-These two appeals are from the judgment of
a Division Bench of the Bombay High Court (Dixit
and Shah JJ.) dated May 19, 1950, dismissing the
appeals preferred by the appellants against the order
made by Shri M. S. Patil on March 13, 1950, as the
Special Judge appointed under the Bombay Public
Security Measures Act, 1947, whereby he convicted and
sentenced them to death and to different terms of
imprisonment under the different charges.
The prosecution case is shortly as follows : On the
morning of May 26, 1949, between the hours of
10-30 a.m. and 11 a.m. in the city of Ahmedabad the
two appellants with another companion, after injuring, by gunshot, the driver and a peon of the Central
(1) [1952] S.C.R. 435.
1952
Lachmandas
Kewalram
Ahuja
11nd Another
v.
The State of
Bombay.
Patanjali
Sastri C, /.
r" 19'2
Lachmandas
Kewalram
Ahuja
and Another
v.
The State of
Bombay.
Dai /.
720
SUPREME COURT REPORTS
[1952]
Bank of India Ltd., forcibly removed moto~ van No.
BY 4388 belonging to the bank in which 11 large sum
of money was being carried from its head office at
Gandhi Road to its branch office at Maskati. After
abandoning the motor van at a distance of threefourths of a mile, the three gunmen forcibly took possession of the bicycles of some persons who were riding
the same and continued
their escape.
In
course of
their flight, they fired
and injured
several people.
Eventually, however, the two appellants were arrested
by the Police but their companion made
good
his
escape. . The driver and the peon of the bank who had
been injured succumbed to their injuries, one dying on
the spot and the other in the hospital on the next day.
After investigation, the Ahmedabad Police, on July
19, 1949, submitted to the City Magistrate, Ahmedabad, two charge sheets Nos. 183 and 183-A against
the two appellants and the then unknown absconder
in respect of several offences cmnmi_tted in course of
the transaction that took place on May 26, 1949. The
charge sheet No. 183 was in respect of offences under
sections 394, 397, 302, 307 read with section 34 of the
Indian Penal Code, section 19 ( e) of the Arms Act, and
sect;on 68 (1) of the Bombay District Police Act. The
charge
sheet No. 183-A was in respect of offences
punishable
under sections
307, _392
read with section 34 of the Indian Penal Code, section 19( e) of the
Arms Act and section 68(1) of the Bombay District
Police Act. In each of these charge sheets there was
appended
a note to the effect
that the District
Superintendent of Police,
Ahrnedabad
City,
had
requested
the
District
Magistrate,
Ahmedabad,
to
move the Government of Bombay for the constitution
of a Special Court to hear the cases and that the said
charge sheets might be transferred to the Special
Court as and when one was so constituted. In view
of this note the City Magistrate did not hold
any
enquiry but only remanded the appellants.
By a Notification dated August 6, 1949, the Government of Bombay exercising its powers under
section
10 of the Bombay Public Security Measures Act, 1947,
•
. .J
..
S.C.R.
SUPREME COURT REPORTS
721
constituted a Special Court
of
criniinal
jurisdiction
for the Ahmedabad District and under section 11 of
that Act appointed Shri M. S. Patil, District and
Sessions Judge, Ahmedabad, as a Special Judge to
preside over the Special Court.
By another Notification made on the same date, the
Government
of
Bombay in exercise of powers conferred by section 12
of the
Act
directed
the
Special
Judge to
try
two particular cases, namely, the Postal Van dacoity
case in which there were 9 accused and the Central
Bank robbery with murder case in wliich the two
:appellants before us were the accused under the two
charge sheets.
In view of the above Notification the
·City
Magistrate,
Ahmedabad,
transferred
the two
cases against the appellants to the Court of the Special
Judge and they came to be numbered as cases Nos. 2
and 3 respectively of
~949.
On December 31, 1949,
the Government of Bombay directed that the trial of ·
the appellants should be held by the Special Judge in
the Ahmedabad Central Prison.
There was no order
of committal by any Committing Magistrate nor was
there any preliminary enquiry by the Special Judge .
On January 13, 1950, the Special Judge consolidated
the two cases against the appellants with a view to
holding a joint trial. On the same day he framed five
several charges, namely, four under different
sections
of the India Penal Code and one under section 19 ( e)
of the Indian Arms Act and section 68 (1) of the
Bombay District Police Act. On January 19, 1950,
the first prosecution witness was examined and up to
January
25,
1950,
seventeen · prosecution
witnesses
were examined. The Constitution came into operation on January 26,
1950. Tlie hearing proceeded
thereafter and the deposition of the last witness was
recorded on February 9, 1950. ·Altogether sixty-two
witnesses were examined. The two appellants were
examined under section 342 of the Code of Criminal
Procedure on
February 10, 1950. One handwriting
expert was examined as a Court witness on February
13, 1950, and argume~ts for the prosecution commenced
on the following day.
After the conclusion of the
1952
Lzchmandas
Kewalram
Ahuia
and Another
v.
The State of
Bombay.
DllS /.
' '
1952
Lflchmandas
Kewal ram
Ahuia
11nd Another
v.
The State of
Bombay.
Das/.
722
SUPREME COURT REPORTS
[1952}
arguments for the defence on February 23, 1950, the
Special Judge delivered his judgment on March 13,
1950.
According to his findings both the appellants
had committed eleven different offences
punishable
under several penal provisions of law as specified by
him and he convicted both the appellants of the said
eleven offences and sentenced both of them to death
under section 302/34, Indian Penal
Code, and
to
transportation for life under section 307 /34,
Indian
Penal Code, and to various terms of imprisonment
under various other sections of the Indian Penal Code,
Arms Act and
Bombay
District Police Act.
The
capital sentences were, of course, subject to the confirmation by the High Court.
Both the appellants appealed to the Bombay High
Court.
The
appeals
along
with
the
reference
for
the
confirmation
of
the
sentences of death
were heard together by Dixit and Shah JJ. who by
their judgments dated May 19, 1950, dismissed
the
appeals and confirmed the sentences of death. The
appellants applied to the High Court for certificates
under articles 132 (1) and 134 (1) (c) of the Constitution to enable them to appeal to this Court. The High
Court (Bhagwati and Dixit JJ.), however, granted the
appellants a certificate only under article 132 (1) but
declined to issue any under article 134 (1) (c). The
appellants thereupon filed the present appeals pursuant to the certificate under article 132 (1). A petition
was filed before us under article 132 (3) for leave to
urge, as an additional ground, that the trial was
vitiated by reason of misjoinder of charges. No such
ground was actually advanced before the High Court
and as this Court did not think fit to permit the
appellants to raise a new point at this stage it disallowed
that
petition.
Accordingly
these
appeals
must be limited to attacking the judgment of the
High Court on the ground that a substantial question.
of law as to the interpretation of the Constitution has
been wrongly decided.
The only substantial question of law as to the interpretation of the Constitution urged before us is that
\
•
S.C.R.
SUPREME COURT REPORTS
723
the Bombay Public Safety Measures Act, 1947, or, at
any rate, that part of section 12 of that Act which
authorises the
State government to direct specific
"cases" to be tried by a Special Judge appointed under
that Act, offends against the equal protection of law
guaranteed by article 14 of the Constitution and is as
such void under article 13 on the principle laid down
J by this Court in the cases of The State of West Bengal
~
v. Anwar Ali Sarkar(1) and Kathi Raning Rawat v. The
State of Saurashtra(2 ). In order to appreciate the
po~nt
in issue, it is necessary to consider in some detail the
provisions of the impugned Act.
\
\
\
The Act came into force on March 23, 1947. It was
then intituled as "An Act to consolidate and amend
the law relating to public safety, maintenance
of
public -Jrder and the preservation of peace and tranquillity in the Province of Bombay".
The preamble
recited the expediency of consolidating and amending
the law relating to those several matters.
By section
2 (3) the Act was to remain in force for a period of
three years. The Act was amended by Bombay Act I
of 1950 and amongst other things, the words "security
of the State, maintenance of public order and maintenance of supplies and services essential to the community in the State of Bombay" were substituted for
the words
"public safety,
maintenance
of
public
order and the preservation of peace and tranquillity in
the Province of Bombay" occurring in the long title
and preamble of the Act.
The word "six" was
substituted for the word "three" in section 2 (3). The
remaining sections of the Act are grouped under several heads.
Thus sections 3 (Al) to 5B are grouped
under the heading "Restrictions of movements etc.".
A contravention of an order made under some of
these sections is made
an offence punishable
as
mentioned therein.
The subject of "collective fines"
is dealt with under that heading in section 6.
"Control of camps etc. and uniforms" are covered by
sections 7 and 8, each of which makes a contravention
(1) [1952] S.C.R. 284.
(2) [1952] S.C.R. 435.
1952
Lachmandas
Kewalram
Ahuja
and Another
v.
· The State of
Bombay.
Das/.
1952
Lachmandas
Kewalram
Ahuja
and Another
v.
The State of
Bombay.
Das f.
724
SUPREME COURT REPORTS
[1952]
of any order made under it an offence. Section 9 prescribes whipping as a punishment for certain offences
under certain Acts in addition to any other punishment to which the offender may be liable under those
Acts.
Section 9 A is set down under the heading
"Control of Publications etc." and section 9B under the
heading "Control of Commodities etc.".
Each of those
sections makes a contravention of
any order
made
thereunder an offence punishable as provi.ded therein.
Sections 10 to 20 which are collected under the heading "Special Courts" are material for the purposes of
the point in issue before us and will have to be carefully noted. The rest of the sections are set out under
the
headings
"Miscellaneous" and "Amendments to
Acts".
Turning to the group of sections under the heading
"Special Courts", it will be noticed that section 10,
like section 3 of the West Bengal (Special Courts) Act,
1950,
and
section
9
of
the
Saurashtra
State
Public Safety
Measures
Ordinance,
1948,
authorises
the government by notification in the Official Gazette
to constitute Special Courts of criminal jurisdiction
for
such area as may be specified in the notification.
Section 11 which corresponds to section 4 of the West
Bengal Act and section 10 of the Saurashtra Ordinance
empowers the government to appoint as a Special
Judge to preside over a Special Coun any person
possessing
the
requisite
qualifications
mentioned
therein. Section 12 is expressed in precisely the same
terms in which section 5 ( 1) of the West Bengal Act
and section
11
of
the
Saurashtra
Ordinance
are
expressed, namely :
"A Sp.ecial Judge shall try such offences or class
of offences or such cases or class of cases as the Provincial Government may, by general or special order
in writing direct."
It will be noticed that the offences mentioned in the
above section are not limited to offences created by
. this Act only but also· cover offences under any other
law, e.g., the Indian Penal Code, Section
13
runs
thus:
I
S.C.R.
SUPREME COURT REPORTS
725
"13. (1) A Special Judge may take cognizance of
offences without the accused being committed to his
Court for trial.
(2) A Special Judge shall ordinarily
record a
memorandum only of the substance of the evidence of
each witness examined, may refuse to summon any
witness if satisfied after examination of the accused
that the evidence of such witness will not be
material
and shall not be bound to adjourn any trial for any
purpose unless such adjournment is," in his opinion,
necessary in the interests of justice.
( 3) In matters not coming within the scope of
sub.sections (1) and (2), the provisions of the Code,
in so far as they are not inconsistent with the provis'ions of sections. 10 to 20, shall apply to the proceedings of a Special Judge; and for the purposes of the
said provisions, the Court of the Special Judge shall
be deemed to be a Court of Session."
Under section 14 of the Special Judge may in his discretion direct the evidence of a person who is not in a
position to attend the Court to be recorded on com-
~
mission.
Enhanced punishments are provided for certain offences by section 15 as follows :
"Notwithstanding
anything
contained
in
the
Indian Penal Code, whoever commits an offence of
attempt to murder may, in lieu of any punishment to
which he is liable under the said Indian Penal Code,
be punishable with death; and whoever commits an
offence of voluntarily causing hurt by stabbing may,
in lieu of any punishment to which he is liable under
> the said Indian Penal Code, be punishable with death
or transportation for life."
Section 16 authorises the
Special
Judge to pass
any sentence
authorised
by
law
and
section
17
prescribes a special rule of procedure for recovery
of fines. Section 18 gives a right of appeal to a
person
convicted
on a
trial held by
a
Special
'~ Judge
within
a
period
of
fifteen
days
from
the date of sentence and also empowers the High
Court tD call for the records of the proceedings of any
1952
Lachmandas
Kewalram
Ahuia
and Another
v.
The St11te of
Bombay.
Das f.
•
•
1952
Lachmandas
Kewalram
Ahuia
.and Another
v.
The State of
Bombay.
Das/.
726
SUPREME COURT REPORTS
[1952]
case tried by a Special Judge and in respect of such
case exercise any of the powers conferred on a Court
of appeal by sections 423, 426 and 428 of the Code.
Sub-section (3) of section 18 runs thus :
"No Court shall have jurisdiction to transfer any
case from any Special Judge or to make any order
under section 491 af the Code in respect of any person
triable by a Special Judge or, save as herein otherwise
provided, have jurisdiction of any kind in respect of
proceedings of any Special Judge."
Thus the right to apply for transfer of the case and
the right to apply for revision are denied to an accused
who is tried by a Special Judge. Ordinary law is, by
section 19 made applicable in so far as it is not inconsistent with the provisions of sections 10 to 20. Section
20 provides as follows :-
"Notwithstanding
anything
contained
in
the
Code, the trial of offences before a Special Judge shall
not be by jury or with the aid of assessors."
Thus, besides providing for enhanced punishment
and whipping the Act eliminates the committal proceedings [section 13 (1) ], permits the Special Judge to
record only a memorandum of the evidence, confers on
him a larger power to refuse to summon a defence witness, than what is conferred on a Court by section
257 ( 1) of the Code of Criminal Procedure and also
deprives the accused of his right to apply for a transfer or for revision.
That these departures from the
ordinary law cause prejudice to person subjected to
the procedure prescribed by the Act cannot for a
moment be denied.
This Court has, by its decisions
in the State of West Bengal v. Anwar Ali Sarkar
(supra) and in Kathi Raning Rawal v. The State of
Saurashtra
(supra),
recognised
that article 14 condemns discrimination not only by a substantive Ia:w
but also by a law of procedure and that the procedure
prescribed by the corresponding provisioI)s in the West
Bengal Special Courts Act and the Saurashtra Ordinance which introduced similar departures from the
ordinary law of procedure constituted a discrimination
,_
I
~.
......
S.C.R.
SUPREME COURT REPORTS
727
against persons tried by the Special Judge according
to procedure prescribed by those pieces of legislation
and finally that, in any event, section 5 (1) of the
West Bengal Act and section 11 of the Saurashtra
Ordinance, both of which corresponded to section 12 of
the Bombay Public Security Measures Act, in so far as
they authorised the government to direct specific and
particular "cases" to be tried by the Special fuoge,
was unconstitutional and void. In view of the departures from the ordinary law brought about by the
Bombay Public Safety Measures Act, 1947, which are
noted above it, cannot but be held, on a parity of reasoning, that at any rate section 12 of the Act, in so
far as it authorises the Government to direct
particular "cases" to be tried by a Special Judge, is also
unconstitutional.
Learned Attorney-General appearing for the State of
Bombay does not controvert the legal position as d'iscussed above but he points out that the offences were
committed in May, 1949, that the Special CoUrt was
constituted and the Special Judge was appointed
in
August, 1949, and these "cases" were directed to be
tried by the Special Judge in August,
1949,
that
the Special Judge actually framed charges
against
the
appellants
on
January
13,
1950,
and
that
the
depositions
of
seventeen
witnesses
had
been
taken before the Constitution came into force and
when the Bombay Public Safety Measures Act, 1947,
was valid 'in its entirety. He contends, on the authority
of the decision
of this Court
in
Keshavan
Madhava Menon v.