# EDWARD EZRA AND ANOTHER v. THE STATE OF WEST BENGAL

- **Citation:** [1955] 1 S.C.R. 1025
- **Court:** Supreme Court of India
- **Decided:** 1952-07-30
- **Case number:** Criminal Law Amendment Ordinance No. XXIX of 1943
- **Bench:** MuKHERJEA, S. R. DAs, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/edward-ezra-and-another-v-the-state-of-west-bengal-294
- **Pages:** 11

## Headnote

1025
West Bengal Criminal Law
Amendment
(Special Courts)
Amendment
Act,
1952
(West
Bengal
Act
XII
of
1952),
S. 12-Conviction 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 19.52V alidity of.
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 ·present 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 Spe1954
November 30·
1954
..Edward Ezra
and Another
v.
The State of
West Bengal
1026
SUPREME COURT REPORTS
[1955]
cial 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 \Vest 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 proi:eedings 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 \vhich were being tried in the
ordinary \vay
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 \Va

## Text

-
-
S.C.R.
SUPREME COURT REPORTS
EDWARD EZRA AND ANOTHER
v.
THE STATE OF WEST BENGAL
[MuKHERJEA, S. R. DAs and VIVIAN BosE JJ.]
1025
West Bengal Criminal Law
Amendment
(Special Courts)
Amendment
Act,
1952
(West
Bengal
Act
XII
of
1952),
S. 12-Conviction 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 19.52V alidity of.
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 ·present 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 Spe1954
November 30·
1954
..Edward Ezra
and Another
v.
The State of
West Bengal
1026
SUPREME COURT REPORTS
[1955]
cial 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 \Vest 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 proi:eedings 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 \vhich were being tried in the
ordinary \vay
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 \Vas to proceed further if the
appellate court
directed a rehearing would depend entirely on the order which the
appellate court passed and was con1petent 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 \Vas
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 Kumar Dutta, (A. K. Dutt and S. Chose, with
him), for the appellants.
C. K. Daphtary, Solicitor-General
Mehta, P. G. Gokhale and N. C.
him), for the respondent.
of
India, (P. A.
Chakravarty, with
-
-
•
S.C.R.
SUPREME COURT REPORTS
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 has 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,
1954
Edward E:e:ra
and Another
v.
The State of
West Bengal
Mukheijea J.
1954
. .Edwa·rd Ezra
and Another
. v.
· The Stai. of
West Bengal
. Mukherfea .].
1028
SUPREME COURT REPORTS
[1955]
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 offences specified in the schedule as may be preferred
against
the
several accused".
The result, therefore,
is
that
although a number of offences are specified
in the
schedule, it is not all cases of these
offences
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
frop.1 the 16th
of December, 1949, when Mr. Bose, one of the
members, resigned.
It
is
true that
the Amending Ordina_nce 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) autho-
..
'f
-
S.C.R.
SUPREME COURT REPORTS
1029
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,
be-
-came 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
<Jf 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 bv 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
' 1954
Edward Ezra
and Another
v.
The State of
Weit Bengal
Mukherjea J.
1954
Edward Ezra
and Anoth61'
v.
The State of
West Bengal
Mukherjea ].
1030
SUPREME COURT REPORTS
[1955]
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 Ch under, 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 tlle 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
·•
' •
-
-
-
-
'f
y
S.C.R.
SUPREME COURT REPORTS
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
1s 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 amend_.,
ment of 1952, provided that "the Provincial Govern-
-. ment may from time to time by
notification
in
the
official gazette allot cases for trial to a special
Judge";
and sub-section (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
acc~sed, 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 spe-
. cial Judge shall be deemed to be
transferred to the
special Judge to whom it is allotted".
The
result
of
10-89 S. ·c. India/59.
1954
Edward E;;ra
and Another
v.
The State of
We /Bengal
Mukherjea J.
1954
Edward Ezra
and Another
v.
The State of
West·&ngal
Mukherjea J.
1032
SUPREME COURT REPORTS
[1955]
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
cou:t 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
-
t
-
I
,_ ).__
,,_
~
'
-
'
-
S.C.R.
SUPREME COURT REPORTS
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
appeallants 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
1954
Edward Ezrc
and Another
v.
The State of
West Bengal
Mukherjea J.
1954
Edward Ez-,ra
and Another
v.
T!Ee State of
West lhnga
MukJ,,,fea J.
1034
SUPREME COURT REPORTS
[1955]
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 di~ects 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 deemep 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
,
..
-
y
S.C.R.
SUPREME COURT REPORTS
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.
NARESH CHARAN DAS GUPTA
v.
PARESH CHARAN DAS GUPTA
[MEHR CHAND MAHAJAN C.J., BHAGWATI, JAGANNADHADAS and VENKATARAMA AYYAR JJ.]
Will-Executed witlz due solemnities by a person of competent
• understanding-Onus of proving undue infiuence-Undue infiuence
-Meaning
of-Indian Succession
Act, 1925 (XXXIX of 1925),
s. 63-Due attestation-Proof of.
When once it has been proved that a will has been executed
with Jue solemnities by a person of competent understanding and
apparently a free agent, the burden of proving that it was executed
under undue influence is on the person who alleges it.
It is
well-settled
that it
is not every influence
which
is
brought to bear on a testator that can be characterised as "undue".
~ It is open to a person to plead his cause before the te~tator and to
persuade him to make a disposition in his favour. And if the testator
133
Edward Ezra
and Another
v.
The State of
West Bengal
Mukherjea ].