# Bathina Ramtt· krishna Reddy v. The State of Madras

- **Citation:** [1952] 1 S.C.R. 435
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Bench:** PATANJALI SASTRI c. J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bathina-ramtt-krishna-reddy-v-the-state-of-madras-31
- **Pages:** 43

## Headnote

FAZL ALI, MEHAR CHAND
~1h.IHJAN, MuKERJEA, DAs, CHANDRASEKH.,RA
A1Y AR and VIVIAN BosE JJ.]
Saurasiitra State Public Safety (Third Amendment) Orditzanu
(LXVI of 1949), ss. 9, 10, 11-Law empowering State to constitute
Special
Court,· to
try special classe . .-
of ofjences-Constittttional
11alidity-Contraventio11 of fundamental rig/it to equal protection of
laws-Ess~ntiais of
valid
clas.<ifimtion-I>c:legation of legislative
powers--r:omritutio11 of lndia, .1rts. 13, 14.
The Saurashtra
State Public
Safety
.Measnrcs
Ordinance,
19-18, was
p~5'ed "to provide for pul1lic safety, maintenance of
public order and preservation of peace and tranquillity in the
State of Saurashtra."
As crimes
involving violence
such
as
dacoity and murder were increasing, this Ordinance was amended by the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, which, by secs. 9, JO and 11, empowered the State Government hy notification in the official gazette
to constitute
Special
Courts of criminal jurisdiction
for such
,1rea as may he specified in the notification, to appoint Special
fudges to prc,ide over such
Conrts and to invest
them with
jurisdiction
to try such offences
or classes of offences or such
cases or classes of cases as the Government may, by general or
special order in writing, direct.
The procedure laid down by
1952
Bathina Ramtt·
krishna Reddy
v.
The State of
Madras:.
1952
p,,,. 27.
1952
Kathi Ran in g
Rawat
"·
The State of
Saurasktra.
436
SUPREME COURT REPORTS
[1952]
the Ordinance for trial before such Courts varied from the normal procedure prescribed by the Criminal Procedure (-:ode in two
material respects, viz., there \Vas no provision for trial ·by jury
or v,rith the aid of assessors, or for enquiry before con1mitment
to sessions.
In exercise of the po\vers conferred by this Ordinance the Government, by a
notification, constituted a Special
Court for
certain
areas and
empowered that
Court to try
offences under secs. 183, 189, 302, '04, 307, 392 and certain other
sections of the
Indian
Penal
Code \Vhich \\'ere specified
in the
notification.
It was conten<led on behalf of
the appellant who had been
convicted by the Special Court under secs. 302, 307 and 392 of
the Indian
Penal Code read· with sec. 34,
that the Ordinance of
1949 and the notification above-mentioned contravened
J\rt. 14
of the Constitution and were therefore ultra vires and void :
Held, per PATANJALI SAsTRI C. J., FAZL Au, MuKHF.llJEA and
D1i.s
JJ.-(:~.1EHR
CHAND
MAHAJAN,
CttANDRASEKnA:n.A
A1YA1t
and BosE Jj. dissenting)-That the
impugned
Ordinance in so
far as it
authorised the
State
Government to
Jirect offences or
classes of offences or ch1sses of cases to be tried by the Special
Court did not contravene the provisions of Art. 14 and was not
ultra vireJ or void.
The notification
i~sued under the Ordinancr.
w::i.s also not void.
PATANJALI
SAsTRI C. J.-All legislative differentiation is not.
nece$sarily
di$criminatory.
Discrimination invol\'es
an
element
of unfavourable bias, and it is in that sense that the i;:xpression has
to he understood in the context.
Equal protection claims under
Art. J 4 arc exan1incd 'vi th the presun1ption that the State action
is reasonable and justified.
1'hough differing procc-durcs might
involve disparity in treatn1cnt of per'.'ons trie<l under then1, such
disparity is
11Dt in it<:clf sufficient to out\\'eigh this presumption
and e::.tahlish discrimination unless the <legree of disparity goes
beyond what the reason for its existence demands,
~.g., 'vhen it
an1ounts to a denial of a fair and impartial trial.
111.e impugned
Ordinance having been passetl to co1nbat the increasing tempo of
cert:1.in types of regional
crime~ the t\vo-fold classification on thrlines of type and territory adopted by the said Ordinance read
with the notification issued
thereunder was reasonabler, and the
degree
of
disparity of
treatment involved
W:1.S
in no \vay in
excess of \Vhat the situation den1anded.
\Vhile on the one hand it cannot be sa

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-
S.C.R.
SUPREME COURT REPORTS
435
bona fide, even if good faith can be held to be a defence
at all in a proceeding for contempt.
What is more,
he did not express any regret for what he had done
either in the High Court or before us and his behaviour
Joes not show the least trace of contrition. In these
circumstances, we think that the appeal cannot succeed and must be dismissed.
Appeal dismissed.
Agent for the appelliant : S. Subrahmanyam.
Agent for the respondent : P. A. Mehta.
KATHI RANING RAWAT
ti.
THE STATE OF SAURASHTRA
[PATANJALI SASTRI c. J.,
FAZL ALI, MEHAR CHAND
~1h.IHJAN, MuKERJEA, DAs, CHANDRASEKH.,RA
A1Y AR and VIVIAN BosE JJ.]
Saurasiitra State Public Safety (Third Amendment) Orditzanu
(LXVI of 1949), ss. 9, 10, 11-Law empowering State to constitute
Special
Court,· to
try special classe . .-
of ofjences-Constittttional
11alidity-Contraventio11 of fundamental rig/it to equal protection of
laws-Ess~ntiais of
valid
clas.<ifimtion-I>c:legation of legislative
powers--r:omritutio11 of lndia, .1rts. 13, 14.
The Saurashtra
State Public
Safety
.Measnrcs
Ordinance,
19-18, was
p~5'ed "to provide for pul1lic safety, maintenance of
public order and preservation of peace and tranquillity in the
State of Saurashtra."
As crimes
involving violence
such
as
dacoity and murder were increasing, this Ordinance was amended by the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, which, by secs. 9, JO and 11, empowered the State Government hy notification in the official gazette
to constitute
Special
Courts of criminal jurisdiction
for such
,1rea as may he specified in the notification, to appoint Special
fudges to prc,ide over such
Conrts and to invest
them with
jurisdiction
to try such offences
or classes of offences or such
cases or classes of cases as the Government may, by general or
special order in writing, direct.
The procedure laid down by
1952
Bathina Ramtt·
krishna Reddy
v.
The State of
Madras:.
1952
p,,,. 27.
1952
Kathi Ran in g
Rawat
"·
The State of
Saurasktra.
436
SUPREME COURT REPORTS
[1952]
the Ordinance for trial before such Courts varied from the normal procedure prescribed by the Criminal Procedure (-:ode in two
material respects, viz., there \Vas no provision for trial ·by jury
or v,rith the aid of assessors, or for enquiry before con1mitment
to sessions.
In exercise of the po\vers conferred by this Ordinance the Government, by a
notification, constituted a Special
Court for
certain
areas and
empowered that
Court to try
offences under secs. 183, 189, 302, '04, 307, 392 and certain other
sections of the
Indian
Penal
Code \Vhich \\'ere specified
in the
notification.
It was conten<led on behalf of
the appellant who had been
convicted by the Special Court under secs. 302, 307 and 392 of
the Indian
Penal Code read· with sec. 34,
that the Ordinance of
1949 and the notification above-mentioned contravened
J\rt. 14
of the Constitution and were therefore ultra vires and void :
Held, per PATANJALI SAsTRI C. J., FAZL Au, MuKHF.llJEA and
D1i.s
JJ.-(:~.1EHR
CHAND
MAHAJAN,
CttANDRASEKnA:n.A
A1YA1t
and BosE Jj. dissenting)-That the
impugned
Ordinance in so
far as it
authorised the
State
Government to
Jirect offences or
classes of offences or ch1sses of cases to be tried by the Special
Court did not contravene the provisions of Art. 14 and was not
ultra vireJ or void.
The notification
i~sued under the Ordinancr.
w::i.s also not void.
PATANJALI
SAsTRI C. J.-All legislative differentiation is not.
nece$sarily
di$criminatory.
Discrimination invol\'es
an
element
of unfavourable bias, and it is in that sense that the i;:xpression has
to he understood in the context.
Equal protection claims under
Art. J 4 arc exan1incd 'vi th the presun1ption that the State action
is reasonable and justified.
1'hough differing procc-durcs might
involve disparity in treatn1cnt of per'.'ons trie<l under then1, such
disparity is
11Dt in it<:clf sufficient to out\\'eigh this presumption
and e::.tahlish discrimination unless the <legree of disparity goes
beyond what the reason for its existence demands,
~.g., 'vhen it
an1ounts to a denial of a fair and impartial trial.
111.e impugned
Ordinance having been passetl to co1nbat the increasing tempo of
cert:1.in types of regional
crime~ the t\vo-fold classification on thrlines of type and territory adopted by the said Ordinance read
with the notification issued
thereunder was reasonabler, and the
degree
of
disparity of
treatment involved
W:1.S
in no \vay in
excess of \Vhat the situation den1anded.
\Vhile on the one hand it cannot be said that any variation of
procedure which
operates
1naterially to the
disadvantage of the
accused is discrin1inatory
and violates
_r\rt. 14, the
other extreme
vie\v that
Art. 14 provides
no
further
constitutional
protection
to personal liberty
than \vhat is
afforded by
:\rt. 21 is also
wrong.
F'AZL :\LI
J.--~r\ distinction
nlust be dra,vn
l~twcen "discri1nination
\vithout
reason''
and
"discrimination
with reason".
...
-,
-.,
' '
•
-
-
.......
>
,,. '
..
S.C.R.
SUPREME COURT REPORTS
437
The whole
doctrine of classification is
based on
this distinction
and on the well-known fact that the
circumstances which govern
one set of persons or objects may not necessarily be the same
.as those governing another set of persons or objects so that the
question of unequal treatment does not really arise as between
persons
governed by different
conditions and different
~ets of
circumstances.
The clear recital of a definite objective in the
-earlier Ordinance and the impugned Ordinance which amended
it, furnished a tangible and rational basis of classification and
the OrJinance and the notification <lid not violate Art. 14. [The
Legislature should however have recourse to legislation iikc this
only in ,·ery special circumstances.]
.MuKHERJEA
J.-Where the legislative
policy is
clear and
definite and as an effective method of carrying out that policy
a. discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain
classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation.
In such cases, the
power given to the executive body would import a duty on it to
classify the subject matter of legislation in accordance with the:
objective
indicated in
the statute.
If the administrative body
proceeds to classify persons or things on a basis which has no
rational
relation to the
objertiYc of
the legislature, its action
can certainly be annulled as offending against the equal protection
·clause.
The preamble. of the main
Ordinance
(IX of 1948) taken
along with the surrounding circumstances disclosed
a definite
legislative policy and
objective, and the impugned
Ordinance
cannot therefore he held to be unconstitutional merely because
it vested in the Government the authority to constitute Special
Courts and to specify the classes of offences to he tried by such
courts with a view to achieve that objective.
The notification
issued by the Government was also not void as it did not proceed
on any unreasonable or arbitrary basis hut on the other hand
there was a reasonable relation between the classification made
by the notification and the objective that the legislation had in
vie,v.
Though it is a sound and reasonable proposition
that when
the nature of two offences is intrinsically the same and they are
punishable in the same manner, a person accused of one should
not he treated differently from a person accused of the other,
yet in determining the reach and
scope of a particular legislation it is not necessary for the legislature to provide abstract
~ymrnetr)'. A too rigid
insistence on
anything
like
scientific
classification is neither practicable nor desirable.
0As J.-The relevant part of sec. 11 properly construed and
understood does not confer
an uncontrolled and unguided power
on the
State
Government; on
the contrary,
the
power is
·controlled by
the necessity of
making
a proper
classification
1952
Kathi Raning
Rawat
v.
The State of
Saurashtra.
1952
Kathi Raning
Rawat
v.
The State of
Sattrashtra.
438
SUPREME COURT REPORTS
[1952]
which is to be guided by the prc..'lmble in
the sense
that the
classification must have a rational relation to the object of the
Ordinance as recited in the preamble.
The classification effected
by the in1pugned Ordinance and the notification thus satisfied
the t\vo conditions necessary for a valid classification! viz., that
jt inust not be arbitrary but must be founded on an intelligible
diffcrentia, and that differentia rnust have a rational relation to
the object sought to be achieved
by the Act. The Ordinance and
the notification did
not therefore
contravene
Art.
14 of the
Constitution.
MAHAJAN ].-Section
l l of the
Ordinance suggests no
rea~
sonable basis for classification either in respect of offences or
in respect of cases, nor has it laid down any measure for the
grouping either of persons or of cases or of offences, by which
tncasure these groups could be distinguished from those outside
the purvie\v of the Ordinance. The \vords used in the preamble
to the n1ain Ordinance and the fact that sec. 9 of the impugned
Ordinance provides that the
po\\'Cr can be
exercised for any
particular area cannot limit the plain and unambiguous language
of sec. 11 j
and the said section is therefore unconstitutional.
CHANDRASEKHARA
AIYAR J.-Sections 9 and
11 do not lay
Jo~'n any classification.
The preamble to the earlier Ordinance
also indicates
no classification
as the object
stated there -is ct
general one which has to be kept in vie\v by every enlightened
Government
or system
of adn1inistration.
The
classification
adopted in the notification also is not a rational one.
BosE J .-The differentiation effected by the impugned Ordinance
and the
notification
lssued
thereunder travels beyond
bou nJs \Vhich are Jcgithnate and the Ordinance therefore offends
Art. 14 and is invalid.
Held also, per curiam, that the Ordinance was not invalid on
the ground that it involved delegation of legislative powers.
The
State of
West
Bengal v. Anwar Ali Sarkar ([l952l
S.C.R. 284 ), In re Delhi L<uus Act, 1912, etc. ( [ 1951] S.C.R. 747) and
King Emperor v. Bcnoarilnl Sarma [72 I.A. 57] referred to.
CRI1vflNAL
APPELLATE
JURISDIC'TION :
Criminal
Appeal No. 15 of 1951.
Appeal under Arts. 132(1! and 134(1) (c) of the
Constitntion
of
Inclia
agamst
the
Judgment
and
Order dated 28th February, 1951, of: the
High Court
of Saurashtra at Rajkor (Shah C.J. and
Chhatpar J.)
in Criminal Appeal No. 162 of 1950. The material
facts appear in the Judgment.
• ...
f
-
-
S. L. Chibber (amicus curia), for the appellant.
-r~
B. Sen, for the respondent.
-
"
)" .
•
S.C.R.
SUPREME COURT REPORTS
439
195'2.
February
27.
The
following
Judgments
were delivered.
PATANJALI
SAsTRI
C.J.-This
appeal
raises
questions under article 14 of the . Const'1tution more or less
similar to thos.e dealt with by this Court in Criminal
Appeal No. 297 of 1951, The State of West Bengal v.
Anwar Ali Sarkar('), and it was heard in part along
with that appeal but was adjourned to enable the respondent State to file an affidavit explaining the circumstances which led to the enactment of the Saurashtra
State
Public Safety
Measures
(Third
Amendment)
Ordinance,
1949
(No. XLVI of 1949), here'inafter re.
ferred to as the impugned Ordinance.
As in the West Bengal case, the jurisdiction of
the
Special Court of Criminal Jurisdiction, which tried and
convicted the appellant, was challenged on the ground
that the impugned Ordinance, under which the
Court
was
constituted,
was
discriminatory and void. The
objection was overruled by the Special Judge as well
as by the High Court of Saurashtra on appeal and the
appellant now seeks a decision nf
this
Court
on thl"
point.
The impugned Ordinance purporti; to amend
the
Saurashtra
State
Public
Saftey
Measures
Ordinance
(No. IX of 1948) which had
been passed "to provide
f:or public safety, maintenance of public urder and
pr·~
servation of peace and
tranqui.~lity in the State of
Suarashtra", hv the insertion of sections 7 to 18 whfrh
deal with the .establishment of Special Courts of criminal
jurisdiction in certain areas to try certain classes of
offences in accordance with :i >implified and 5hortenecl
procedure.
Section 9 empowers the St:ite by notification to constitute Special Courts for such :ireas as may
be specified in the notification and section 10 provides
f:or appointment of Special Judges to preside over such
courts.
Section 11 enacts tliat the
Special Judge shall
try
"such offences or classes
of offences
or such
cases
or classes of cases
as
the
Government may,
by
general or special
order in
writing, direct''.
(I) Since repor~<l as fl 9521 S.C.R. 284.
1952
Kathi Raning
Rawat
v.
The State of
Saurashtra.
Patanjali
Sastri C /.
•
440
SUPREME COURT REPORTS
[ 1952]
1952
Then follow provisions prescribing the procedure·.
applicable· to · the trial . of such offences.
The
Kathi Raning
Raum
only variations in such procedure from the normal
v.
procedure in criminal trials in the State consist of the
xi.. s1o1. •! abolition of trial by jury or with the aid of assessors
Saumhtra. and the elimination of the inquiry before commitment
P:;;;;: u : in sessicins cases. Even under the normal procedure
Saatri b~ J. trial by jury is not compulsory unless the Government
so directs (sections 268 and 269 (I)). while_ assessors
are not really members of the court and their opinion
is not binding on the judge with whom the responsibility for the decision rests. Nor can the commitment proceeding in a sessions case be said to be an essen- ·
tial requirement of a fair and impartial, trial. though
its dispensation may involve the deprivation of certain advantages which an accused person may otherwise enjoy. Thus the variations from the normal procedure are by no means calculated to imperil the .
chances of a fair and impartial trial.
.
In exercise of th.e power conferred by sections 9,
10 and · 11, the Government issued the notification
No. H/35-5-C dated 9/11February,1950, directing that
a Special Court shall be constituted for certain special
areas and -that it shall try certain specified offences
which included offences under sections 302, 307 and
- 392 read with section 34 of the Indian Penal Code
(as adapted and applied to the State of Saurashtra) for
which the appellant was convicted and sentenced.· · ..
It is contended on behalf of the appellant that section 11 and the notification referred to above are
discriminatory in that the offences alleged to have
been committed by the appellant within the specified
areas are required to be .tried by the Special Judge.
under the special procedure, while any person com-
. mitting the same offences outside those areas would
be tried by the ordinary courts under the ordinary
procedure. It is also urged that sections 9 and 11 by
- empowering the State Government to establish• a
Special Court and to direct it to try under_a special
procedure such offences as may be notified by the
Government, in effect, authorise the Gove!llII!ent tQ
S.C.R.
SUPREME COURT REPORTS
441
amend section 5 of the Criminal Procedure Code read
with the Second Schedule
(as adapted and applied to
the State of Saurashtra), which provides that "all
offences under the Indian Penal Code shall be investigated, enquired into, tried
and otherwise
dealt with
according to
the provisions
hereinafter
contained",
and that delegation of such power to
the executive
Government was beyond the competence of a legislature and was, therefore, void.
On the
first point many of the
considerations
which weighed with me in upholding the constitutionality of section 5(1) of the West Bengal Special
Courts Act, which is in identical terms with Section 11
of the impugned Act, apply a fortiori to the present
case. The West Bengal case(') arose out of a reference
by the State Government of certain individual cases
to the Special Court for trial and I there expressed
the view that it was wrong to think that classification
was someth'ing that must somehow be discoverable in
every piece of legislation or it would not be legislation.
That way of regarding classification, I pointed out,
tended only to obscure the real nature of the problems
for which
we
have to find solution. In the present
case, however, the
State
Government
referred
nor
certain
individual
cases
but
offences
of
certain
kinds
committed in
certain areas
and so the objection as to discriminatory treatment is
more easily
answered on the line of reasoning indicated in my
jud¥~ent in the West Bengal case(1). Again, the
vanat1ons from the normal procedure authorised by
the impugned Ordinance are less
disadvantageous
to
the persons tried before the Special Court than under
the West Bengal Act. It was, however, said that any
variation in
procedure: which operates
materially
to
the disadvantange of such persons was discriminatory
and violative of article 14. On the other hand, it was
contended on behalf of the
respondent
State that,
in the field of
personal liberty, the only constitutional
safeguards were
those
specifically
provided
in artides 20 to· 22, and this
Court
having held in
(I) fl952l S.C.R. 28+.
1952
Kathi Raning
Rawat
v.
The State of
Saurashtra.
Patanjali
Sastri C. /.
1952
Kathi Ran in g
Rawat
v.
The State of
Saurashtra.
Paianiali
Sastri C. ].
442
SUPREME COURT REPORTS
[1952J
Gopalan' s case(') that any procedure prescribed by
·'"
law satisfies the requirements of article 21 (the only
article relevant here) the impugned Ordinance which
prescribes a special procedure
for
trial of offences
falling within its ambit could not be held to be unconstitutional. Reliance was placed on a decision of
a Full Bench of the Hyderabad High Court
(Abdur
Rahim and others v. Joseph A. Pinto and others) ( 2)
;,
which seems to lend some support to this view. I am,
,,...
however, of opinion t.hat
neither of these extreme
contentions is sound.
All legislative differentiation is
not necessarily
discriminatory. In fact, the word
"discrimination" does
not occur in article 14. The expression "di·scriminate
against" is used in article 15 ( 1)
and article
16 (2),
and it means, according to the Oxford
Dictionary,
"to make an adverse distinction with regard to; to
distinguish unfavourably from
others".
Dis.crimination thus involves an element of unfavourable bias and
it is in that sense tl1at the expression has to be understood in this context. If such bias is disclosed
and is
based on any of the grounds mentioned in article 15
and 16, it may well be tl1at the statute will, without
more, incur condemnation as violating a specific
constitutional prohibition unless it is saved by one or
other of ilie provisos
to those
articles.
But
tl1e
position
under
article
14 is
different. Equal protection
claims
w1der
that
article
are
examined
with
the
presumption
that
the
State
action
is
reasonable
and
justified.
This
presumption of
constitutionality
stems from the wide power of classification which the legislature must, of necessity, possess
in making laws operating differently as regards different groups of persons in order to give effect to its
policies. The power of the State to regulate criminal
trials by constiruti,ng different
cour~s , with different
procedures according to the needs of different parts of
its territory is an essential part of its police power-
{ cf.
Missouri v. Lewis)(3).
Though
the
differing
(1) [1950] S.C.R. 88.
(3) 161 U.S. 22.
(2) A.LR. 1951 Hyderabad 11.
·;
» \'
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-
S.C.R.
SUPREME COURT REPORTS
443
procedures might involve disparity in the treatment of
the persons tried under them, such disparity is not by
itself sufficient, in my
opinion, to outweigh the presumption and establish discrimination unless the degree
of disparity goes beyond what the
reason
for
its
existence demands as, for instance, when it amounts
to a denial of a fair and impartial trial. It is, therefore,
not correct to say that article 14 provides no further
constitutional protection to personal liberty than what
is afforded by article 21.
Notwithstanding that its
wide general language is
greatly
qualified
in its
practical application by a due recognition of the State's
necessarily wide powers
of legislative
classification,
article 14 remains an important bulwark( against discriminatory procedural laws.
In the present case, the affidavit filed on behalf of
the respondent State by one of its responsible officers
states facts and
figures
relating
to an increasing
number of incidents of looting, robbery, dacoity, nosecutting and murder by marauding gangs of dacoits in
certain areas of the State, and these details support
the claim that "the security of the State and public
peace were jeopardised and
that it became impossible
to deal with the offences that were committed 'in
different places in separate courts of law expeditiously."
The statement concludes by pointing out that the
areas specified in the notification were the "main zones
of the activities of the dacoits as mentioned above."
The impugned Ordinance having thus been passed to
combat
the increas'ing
tempo
of certain
types
of
regional crime, the
two-fold classification on the lines
of
type
and
territory
adopted
in the
:impugned
Ordinance, read with the notification issued
thereunder~
is, in my view, reasonable and valid, and the degree
of disparity of treatment involved is in no way in
excess of what the situation demanded.
On the second point, the appellant's learned counsel
claimed that the majority view in In re The Delhi Law1
Act, 1912, etc.(1) supported his contention. He attempted to make this out by
piecing together certain dicta
.... 1
(1) fl95ll S.C.R. 747.
1952
Kathi Raninz
Rawat
v.
The State of
Saurashtra.
Patanja/i
Sastri C. /,
1952
Kathi Raning
Rawat
v.
The State of
Saurashtra.
Patanjali
Sastri C. /.
444
SUPREME COURT REPORTS
[1952]
found m the several judgments delivered in that case.
While undoubtedly certain
definite
conclusions were
reached by the majority of the Judges who took part
in the decision in regard to the constitutionality of
certain specified enactments, the reasoning in each case
was different and it is difficult to say that any particular principle
h~s been laid down by
the majority
which can be of assistance in the determination of
other cases.
I have there expressed
my view that
legislatures· in this
country have plenary authority to
delegate their
power to make
law.<
to subordinate
agencies of their choice and such delegation, however
inexpedient or undesirable politically, is constitutio·nally competent.
I accordingly reject
this contention.
It follows that the Special Judge had jurisdiction to
try the appellant and the persons accused along with
him.
As the majority concur in overruling the preliminary
objection the appeal will be heard on the merits.
FAzL Au J.-This is an appeal by one Kathi Raning
Rawat, who has been convicted under sections 302,
307 and 392 read with section 34 of the Indian Penal
Code and sentenced to death and to seven years' rigorous
imprisonment.
The appellant was tried by a
Special Court constituted under the Saurashtra State
Public Safety Measures (Third Amendment) Ordinance,
1949 (Ordinarrce No. LXVI of 1949), which was issued
by the Rajpramukh of Saurashtra on the· 2nd November, 1949, and his conviction and sentence were •pheld
on appeal by the State High Court. He has preterred
an appeal to this Court against the decesion of the
High Court.
The principal question which arises in this appeal is
whether the Ordinance to which reference has been
made is void under article 13(1) of the Constitution
on the ground that it violates the. provisions of article 14. It appears that on the 5th April, 1948, the
Rajpramukh of
Saurashtra
State
promulgated an
· Ordinance called the Criminal
Procedure Code, 1898
(Adaptation) Ordi~ance, 1948 (Ordii1ahce No. xq of
..
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S.C.R.
SUPREME COURT REPORTS
445
1948), by which "the Criminal Procedure Code of the
Dominion of India as in force in that Dominion on
the 1st day of April, 1948" was made applicable to
the State of Saurashtra with certain ·modifications. In
the same month, another Ordinance called the Saurashtra State Public Safety Measures Ordinance (Ordinance No. IX of 1948) was promulgated, which provided among other things for the detention of persons
acting
in a manner prejudicial to public safety,
maintenance of public order and peace and tranquillity
in the State.
Subsequently, on the 5th November,
1949, the Ordinance with
which we are concerned,
namely, the Saurashtra State Public Safety Measures
(Third Amendment) Ordinance, 1949, was promulgated,
which purported to amend the previous Ordinance by
inserting in it certain provisions which may be summarised as follws:-
Section 9 of the
Ordinance empowers
the State
Government by notification in the Official Gazette to
constitute Special Courts of diminal jurisdiction for
s,uch area as may be specified in. the notification.
Section 11 provides that a Special Judge shall try such
offences or classes of offences or such cases or classes
of cases as the State Government may, by general or
special order in writing, direct.
Sections 12 to 18 lay
down the procedure for the trial of cases by the
Special Judge, the special features of which are as
follows:-
(1) The Special Judge may take cognizance
of
offences without the accused being committed to his
court for trial;
(2) There is to be no trial by jury or with the aid
of assessors;
(3) The Special Judge should ordinarily' record a
memorandum only of the substance of the evidence of
each witness; and
(4) The person convicted has to appeal ro the
~~
High Court within
15 days from
the date of the
sentence.
6-S S. C: Indial71
1952
Kathi Ranint:
Rawat
v.
The State of
Saurashtr11.
Fazl Ali f.
1
1952
Kathi Ran in g
Rilwlll
v.
The State of
Saurashtra.
Fazl Ali J.
SUPREME COURT REPORTS
[1952}
The Ord'inance further provides that the provisions
of sections 491 and 526 of the Code of Criminal Procedure shall not apply to any person or case triable by
the Special Judge, and the High Court may call for the
record of the proceedings of any case tried by a Special
Judge and may exercise any of the powers conferred on
an· appellate court by sections 423, 426, 427 and 428
of the Code.
From the foregoing
summary of
the provisions of
the Ordinance, it will appear that the difference between the procedure laid down in the Criminal Procedure Code and the procedure to be followed by the
Special Judge consists mainly in the following matters :-
( 1) Where a case is triable by a court of session,
no commitment
proceeding
is
necessary,
and the
Special Judge may take cognizance without any commitment;
(2) The trial shall not . be by jury or with the aid
of assessors;
(3) Only a memorandum of the substance of the·
evidence of each witness is ordinarily to be recorded;
( 4) The period
of limitation
for
appeal to the
High Court is curtailed; and
(5) No court has jurisdiction to transfer any case
from any Special Judge, or to make an order under
section 491 of the Criminal Procedure Code .
. It appears that pursuant to the provisions contained
in sections 9, IO and 11 of the Ordinance, the State
Government issued a Notification No. H/35-5-C, dated
the 9/llth February, 1951, directing the constitution
of a Special Court for certain areas mentioned in a
schedule attached to the
Notification and empowering such court to try the following offences, namely,
offences under sections 183, 189, 190, 212, 216, 224,
302, 304, 307, 323-335,
341-344,
379-382, 384-389 and
392-402 of the Indian Penal Code, 1860, as adapted
and applied to the State of Saurashtra, and most of
the offences under the Ordinance of 1948.
· •
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•
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'
-
-
•
S.C.R.:
SUPREME COURT REPORTS
447
In•• the course of the hearing, an affidavit was filed
by, then •Assistant Secretary in the Home Department
of the Saurashtra Government, stat'ing that since the
integration of different States in Kathiawar
in the
beginning of 1948 there had been a · series of crimes
against public peace and that had led to the promulgation of Ordinance No. IX of 1948, which provided
among other things for detention of persons acting in
a manner prejudiciial to public safety and maintenance
of public
order
in the State.
Notwithstanding this
Ordinance, the cnmes went on increasing and there
occurred numer9us cases
of dacoity,
murder, nosecutting, ear-cutting,
etc. for
some of which certain
notorious gangs were responsible, and hence O!'dinance
No. LXVI of
1949 was promulgated to amend the
earlier Ordinance and to constitute Special Courts for
the speedy trial of cases arisilng1 out of the activities
of the dacoits and
other criminals guilty of violent
crimes.
As has been already indicated, the main contention
advanced before us on behalf of the appellant is that
the Ordinance of
1949
voilates the
provisions
of
article 14 of the Constitution, by laying down a procedure which is defferent from and less advantageous
to the accused than the ordinary procedure laid down
in the Criminal Procedure Code, and thereby discriminating between persons who are to be tried under
the special pr<><;edure and those tried under the normal
procedure.
In support of this argument, reliance is
placed on the decision of this court in The State of West
Bengal v. Anwar Ali Sarkar and Gajen Mali (Cases
Nos. 297 and 298 of 1951)
(1), in which certain provisions
of the West Bengal Special Courts Act,
1949,
have been held to be unconstitutional on grounds
similar to those urged on behalf of the appellant in the
present case. A comparison of the provisions of the
Ordinance in question with those of the West Bengal
Act will show that several of the objectionable features
in the latter enactment do not appear in the Ordinance,
..._t
(1) f1952l S.C.R. 284.
58
1952
Kathi Raning
Rawat
v.
The State of
Saurashtra.
Fazl Ali/.
1952
Kathi Raning
Rawat
v.
The State of
S11Urashtra.
'148
SUPREME COURT REPORTS
[1952}
but on the whole, I am
inclined to think that that
circumstance by itself will not afford justification for
upholding the Ordinance.
There is however one very
important difference between the West Bengal Act and
the present Ordinance which, in my opinion, does
afford such justification, and I shall try to refer to it
as briefly as possible.
I th'ink that a distinction should be drawn between
"discrimination without reason"
and
"discrimination
with reason".
The whole doctrine of classification is
based on this distinction and on the well-known fact
that the circumstances which govern one set of persons
or objects may not necessarily be the same as those
governing another set of persons or objects so that the
question of unequal treatment does not really arise as
between
persons
governed
by
different conditions
and different
5ets
of
circumstances.
The main
objection to
the
West
Bengal
Act was that it
permitted discrimination
"without reason" or without any rational basis. Having laid down a procedure
which was materially different from and less advantageous to the accused than the ordinary procedure, that
Act gave
uncontrolled and unguided authority to the
State Government to put that procedure into operation
in the trial of any case or class of cases or any offence
or class
of offences.
There was no principle to be
found in that Act to control the application of the discriminatory provisions or to correlate
those provisions
to some fungible and rational objective, in such a way
as to enable anyone reading the Act to say:--,-If that
is the objective the provisions as to special treatment
of the offences seem to be quite suitable and there can
be no objection to ·dealing with a particular type of
offences on a special footing.
The mere mention of
speedier trial as the object of the Act did not cure
the defect,
because the
expression "speedier
trial"
standing by itself provided no rational basis of classification.
It was merely a description of the
result
sought to be achieved by the application of the special
procedure laid down in the Act and afforded no help
in determining what cases required speedier trial.
-
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'
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....
·~
•
S.C.R.
SUPREME COURT REPORTS
449
As regards the present Ordinance, we can
discover
a guiding principle within its four corners, which cannot but have the effect of limiting the appl'ication of
the special procedure
to a
particular
category
of
offences only and establish such a nexus (which was
missing in the West Bengal Act) between offences of a
particular category and the object with wMch the
Ordinance was promulgated, as should suffice to repel
the charge of discrimination and furnish some justification for the special
treatment
of those offences.
The Ordinance as I have already stated, purported to
amend another Ordinance, the object of which was to
provide for public safety, maintenance of public order
and preservation of peace and tranquillity in the State.
It was not disputed before us that the preamble of the
original Ordinance
would
govern
the
amending
Ordinance
also,
and
the object of promulgating
the subsequent
Ordinance
was
the same as the
object of promulgating the original OrdinanGe.
Once
this is appreciated, it is easy to see that there is something in the Ordinance itself to guide the State Government to apply die special procedure
not to any
and every
case but only to
those cases or offences
which have a rational
relation
to,
or connection
with, the main object and purpose of the Ordinance
and
which
for
that
reason
become
a class
by themselves requiring to be dealt with on a special
footing. The clear recital of a definite objective furnishes a tangible and rational basitl of classification to
the Stare Government for the purpose of applying the
provisions of the
Ordinance
and for
choosing only
such offences or cases as affect public safety, maintenance of public order and preservation of peace and
tranquillity.
Thus,
under
section
11,
the
State
Government is expected to select only such offences ot
class of offences or class of cases for being tried by the
special court in accordance with the special procedure,
as are calculated to affect public safety,
maintenance
of public order, etc., and under section 9, the use of
the special procedure must necessarily be confined to
only disturbed areas or those areas where adoption of
1952
Kathi Raning
Rawat
v.
The State of
Saurashtra.
Fazl Ali /.
1952
Kathi Ran in g
Rawat
v.
The State of
Saurashtra.
Fazl Ali /.
450
SUPREME COURT REPORTS
[1952]
public safety measures is necessary.
That this is how
. the Ordinance was intended to be understood and was
in fact understood, is
confirmed by the
Notification
issued on the 9/llth February by the State Government in pursuahce of
the
Ordinance.
That Notification sets out 49
offences under the Indian Penal
Code as adapted and applied to the State and certain
other offences punishable under the
Ordinance, and
one can
see at once
that all
these
offences
directly affect the maintenance of public order and
peace and tranquillity.
The Notification also specifies
certain areas in the · State over
which
only the
special
court is
to exercise
jurisdiction.
There can
be no dispute that if the State Legislature finds that
fawlessnes5 and crime are rampant and there is a direct
threat to peace and tranquillity in certain areas within
the State, it is competent to . deal with offences which
affect .the
maintenance of
public order . and preservation of peace, and tranquillity in those areas as a
class by themselves and to provide that such offences
shall be tried as
expeditiously
as possible in accord- 1
ance with a special procedure devised for the purpose.
This, in my opinion, is in plain language the rationale
of the Ordinance, and it will be going too far to say
that in no
case and under
no
circumstances can a
legislature lay down a special procedure for the trial
of a particular class of offences, and that recourse to
a simplified and less cumbrous procedure for the trial
of those offences,
even
when
abnormal conditions
prevail, will amount to a violation of article 14 of the
Constitution.
I am satisfied that this
case is
distinguishable from the case relating to the West Bengal
Act, but I also feel that the legislatures should have
recourse to legislation such as the present only in very
special circumstances.
The question of referring indi~
vidiual cases to the special court does not arise in this
appeal, and
l do not
wish t() express any opinion
on it.
Certain other points· were urged on behalf of the
appellant,
namely, that the Ordinance suffers from
excessive delegation of legislative authority, and that
• ...
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S.C.R.
SUPREME COURT REPORTS
451
the Rajpramukh had exceeded his powers in amending
the provisions of the Criminal Procedure Code. These
contentions were found to be devoid of all force and
have to be rejected.
In the result, I would hold that the Suarashtra State
:Public Safety Measures (Third Amendment) Ordinance
is not unconstitutional, and
accordingly
overrule the
objection as to clie jurisdiction of the spedal court to
try the appellant .
MAHAJAN J.-The principal point for decision in the
appeal is whether section 11 of the Saurashtra State
Public Safety Measures (Third Amendment) Ordinance
(No. LXVI), 1949, wllich came into force on 2nd November, 1949, is hit by article 14 of the Constitution inas.
much as it mentions no ·basis for the differential ·treat~
ment prescribed in the Ordinance for trial of criminals
in certain cases
and for certain offences. Section 11
of the Ordinance ·is in these terms:-
"A Special Judge shall try such offences or classes
of 9ffences or · such cases or classes of cases as the Government of the United State of
Saurashtra may, by
general or special order in writing, direct."
This section is in identical terms with section 5(1)
of the West Bengal Special Courts
Act (Act
X of
1950), section 5(1) of that Act provided as follows:-
"A Special Coun shall try such offences or classes
of offences or cases or classes of cases, as the State
Government may; by general or special order in writing, direct."
The question whether section 5(1) of the West
Bengal Act (X of 1950) was hit by art'icle 14 of the
Constitution was ·answered in the
affirmative by this
court in The State of West Bengal v. Anwar Al~ Sarkar
etc.(1) In that case I was of the opinion that even if the
statute on the face of it was not discriminatory, it was
so in its effect and operation inasmuch as it vested in
the executive government unregulated
official discretion and therefore had
to be
adjudged unconstitutional. Section 11 of the Ordinance, like section 5(1)
(1) f19521 S.C.R. 284.
1952
' Kathi Raning
Rawat_
v.
The State of
Saurashtra.
Mahajan/.
1952
Kathi Ran in g
&wat
v.
The State of
Saurashtra.
Mahajan/.
452
SUPREME COURT REPORTS
[1952]
of the West Bengal Act, suggests no reasonable basis
or classification either in respect of offences or in respect of cases.
It has laid down no measure for the
grouping either of persons or of cases or of offences by
which measure thse
groups could be
distinguished
from those outside the
purview of the special Act.
The State Government can choose a case of a person
similarly situate and hand it over to the special tribunal and leave the case of another person in the same
circumstances to be tried by the procedure laid down
in the Criminal Procedure
Code.
It can direct that
the offence of simple hurt be tried by the special tribunal while a more serious offence be tried in the
ordinary way.
The notification
m
this
case fully
illustrates the point.
Offence of simple hurt punishable with two years' rigorous imprisonment is included
in the list of offences to be tried by the Special Judge,
while a more serious offence of the same kind puni~h
able with heavier punishment under section 308 is excluded from the list. It is the mischief of section 11 of
the Ordinance that makes such
discrimination possible.