# r95"4 Rohald WO;d M'atnams v. State Of Wtst' Bing al: Y tnkatarama l!yyitr Jc

- **Citation:** [1955] 1 S.C.R. 224
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Criminal Appeal No. 48 of 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r95-4-rohald-wo-d-m-atnams-v-state-of-wtst-bing-al-y-tnkatarama-l-yyitr-jc-377
- **Pages:** 15

## Headnote

r95"4
Rohald.. WO;d
M'atnams
v.
State Of Wtst'
Bing al:
Y tnkatarama
l!yyitr Jc
1954
April 20.
"
"
224
SUPREME COURT REPORTS
[!955~
o~der dated 5tli August,
1948,
the "Privy
council
enlarged the scope of the appeal by permitting the
appellant to raise the contention that there had been
a contravention of section 257 of the Criminal Procedure Code;
These are the two points that arise for
determination in his appeal. The question whetller
sanction under sei;tion 197 wa:s necessary for instituting
proceedings against the appellant on charges of conspiracy and of bribery; is now concluded by the decisions
of the Judicial Committee in H. H. B. Gill v. The
King(') and Phanindra Chandra Neogy v. The King( 2 )'.
and" must be answered in the negative. The question
whether there was contravention of section 257 of the
Criminal Procedure Code
and a denial or fair trial
must, for the reasons" already given, be answered in
the affirmative, and the convictionc of the appellant
set aside on that ground. His appeal will also be
allowed, and there will be an order of acquittal in his
favour~
Appeal allowed.
DHIRENDRA KUMAR MANDAL
v;
THE SUPERINTENDENT AND
REMEMBRANCER OF LEGAL AFFAIRS TO
THE GOVERNMENT OF WEST BENGAL,
AND ANOTHER.
" ~MEHR CHAND
MAHAJAN C.J.,
MuKHERJEA, VMAN
BosE BHAGWATI and VENKATARAMA AYYAR JJ.1
Constitution of
India,
Art. 14--Scope
and construction ofMeanin'g. of reasonable classification-C'rimina/" Procedure Code (A'ct
V of 1898), ss. 269(1), 536-Notification under s. 269(1)-Validity
of-Denial of the right to' be' tried by jury lo certai'n individualsRight retained· in t.he case of other indivi.duals committing the same
or .. si'-rJ:iL:zr offetJces-D~fect i'n tri'al-Wheth-er .cured· bys .. 536.
·Trial by j"Nry
is
undoubtedly one of the most vafuable rig)its
wB.i.Ch an accused· can helve Out it -has .not been; guaranfeed Oy the
ConStii:ufIC!n-.
Sect~on· 269( 1) of the CodC· ·o( Criminal' Procedure· is ..___ )_
an: 'enabling· section and ernp0-Wers, the Stare Government- to. direct
-
"M~IA~
..
00%~~
--
'I
-
•
r '
,>-
S.C.R.
SUPREME COURT REPORTS
225
that the trial of all' offences or of any particular class of offences
before any Court of Session shall be by jury. It has the further
power to revoke or alter such an order. There is nothing wrong if
the State discontinues trial by jury in any district with regard to
all or any particular class of offences. The section does not empower the State Government to direct that the trial of a particular
case or of a particular accused person shall be by jury while the
trial of other persons accused of the same· offence shall not be by
jmy. The section does not envisage that persons
accused of the
same offence but involved in different cases can
be
tried
by the
Court of session by a different procedure namely some of them by
jury and some of them with the help of assessors.
The ambit of
the power of revocation
or
alteration
is co-extensive with the
power conferred by the opening words of the section and cannot go
beyond those words.
The impugned notification of the year 1947 revoking the previous two notifications had denied to certain individuals the right
to be tried by jury while retaining that right in the case
of other
individuals who had committed the same or similar
offences and
thus it had travelled beyond the powers conferred
on the
State
Government by section 269( I) of the Code of Criminal Procedure
and was thus void and inoperative.
The impugned notification also contravened the provisions
of
articie 14 of the Constitution inasmuch as
the classification was
not based on some real and substantial distinction
bearing a just
and reasonable relation to the objects sought to be attained but
was made arbitrary and without any substantial basis.
The impugned notification did not in express terms indicate
the grounds on which this set of cases had been segregated from
other sets of cases falling under the same sections of the Indian
Penal Code.
The classification as formulated by t

## Text

r95"4
Rohald.. WO;d
M'atnams
v.
State Of Wtst'
Bing al:
Y tnkatarama
l!yyitr Jc
1954
April 20.
"
"
224
SUPREME COURT REPORTS
[!955~
o~der dated 5tli August,
1948,
the "Privy
council
enlarged the scope of the appeal by permitting the
appellant to raise the contention that there had been
a contravention of section 257 of the Criminal Procedure Code;
These are the two points that arise for
determination in his appeal. The question whetller
sanction under sei;tion 197 wa:s necessary for instituting
proceedings against the appellant on charges of conspiracy and of bribery; is now concluded by the decisions
of the Judicial Committee in H. H. B. Gill v. The
King(') and Phanindra Chandra Neogy v. The King( 2 )'.
and" must be answered in the negative. The question
whether there was contravention of section 257 of the
Criminal Procedure Code
and a denial or fair trial
must, for the reasons" already given, be answered in
the affirmative, and the convictionc of the appellant
set aside on that ground. His appeal will also be
allowed, and there will be an order of acquittal in his
favour~
Appeal allowed.
DHIRENDRA KUMAR MANDAL
v;
THE SUPERINTENDENT AND
REMEMBRANCER OF LEGAL AFFAIRS TO
THE GOVERNMENT OF WEST BENGAL,
AND ANOTHER.
" ~MEHR CHAND
MAHAJAN C.J.,
MuKHERJEA, VMAN
BosE BHAGWATI and VENKATARAMA AYYAR JJ.1
Constitution of
India,
Art. 14--Scope
and construction ofMeanin'g. of reasonable classification-C'rimina/" Procedure Code (A'ct
V of 1898), ss. 269(1), 536-Notification under s. 269(1)-Validity
of-Denial of the right to' be' tried by jury lo certai'n individualsRight retained· in t.he case of other indivi.duals committing the same
or .. si'-rJ:iL:zr offetJces-D~fect i'n tri'al-Wheth-er .cured· bys .. 536.
·Trial by j"Nry
is
undoubtedly one of the most vafuable rig)its
wB.i.Ch an accused· can helve Out it -has .not been; guaranfeed Oy the
ConStii:ufIC!n-.
Sect~on· 269( 1) of the CodC· ·o( Criminal' Procedure· is ..___ )_
an: 'enabling· section and ernp0-Wers, the Stare Government- to. direct
-
"M~IA~
..
00%~~
--
'I
-
•
r '
,>-
S.C.R.
SUPREME COURT REPORTS
225
that the trial of all' offences or of any particular class of offences
before any Court of Session shall be by jury. It has the further
power to revoke or alter such an order. There is nothing wrong if
the State discontinues trial by jury in any district with regard to
all or any particular class of offences. The section does not empower the State Government to direct that the trial of a particular
case or of a particular accused person shall be by jury while the
trial of other persons accused of the same· offence shall not be by
jmy. The section does not envisage that persons
accused of the
same offence but involved in different cases can
be
tried
by the
Court of session by a different procedure namely some of them by
jury and some of them with the help of assessors.
The ambit of
the power of revocation
or
alteration
is co-extensive with the
power conferred by the opening words of the section and cannot go
beyond those words.
The impugned notification of the year 1947 revoking the previous two notifications had denied to certain individuals the right
to be tried by jury while retaining that right in the case
of other
individuals who had committed the same or similar
offences and
thus it had travelled beyond the powers conferred
on the
State
Government by section 269( I) of the Code of Criminal Procedure
and was thus void and inoperative.
The impugned notification also contravened the provisions
of
articie 14 of the Constitution inasmuch as
the classification was
not based on some real and substantial distinction
bearing a just
and reasonable relation to the objects sought to be attained but
was made arbitrary and without any substantial basis.
The impugned notification did not in express terms indicate
the grounds on which this set of cases had been segregated from
other sets of cases falling under the same sections of the Indian
Penal Code.
The classification as formulated by the High Court had no relation to the object in view, that is, the withdrawal of jury trial
in these cases.
·
The contention that the defect in the trial, if any, was cured
by section 536 of the Code of Criminal Procedure as this objection
was not taken in the trial Court, was without force as section 536
postulates irregularities at the trial after the commencement of the
proceedings but it does not concern itself with a notification made
under section 269(1) which travels beyond the limits of that section or which contravenes article 14 of ·the Constitution.
This· objection which goes to the very root of the jurisdiction
of the Court can be taken notice of at any stage.
The impugned notification issued in 1947 was on the lines of
the Ordinance that was in question in Anwar Ali
Sarkar' s case
[1952] S.C.R. 284).
The State of West Bengal v. Anwar Ali Sarkar ([1952] S.C.R.
28.4), Queen-F;mpress v. Ganapathi Varmianar and Others (I.L.R. 23
Mad. 637), Syed Ka;im RaztJi v. The State of Hyderabad ([1953]
1954·
Dhirendra Kutfl(lf.
M~ntlal
v,
T.M SufJtrintendent tJna
Remembrancn
of Legal Affairs to
the Government of
West Bengal,
and Another.
D!iirtiJdra .Kumar
.MiJndal -
Vo
'Thi superirl. :
te'ndent and ·
Rlmtmbranc"
of Ugal Affairs to .
IM- Goliernmtnl of
West Bengal,,
and Anothd:
SUPREME COURT REPORTS
[1955],
S:C.R. 589), Habeeb Mahomed v. The State of Hyderabad ([1953]
S.C.R. 661), Lachmandas Kewa/ram Ahuja v. The State of Bombay
([1952] S.C.R. 710), Kathi Raning Rawat v. The State of Saurashtrt1·
([1952] S.C.R. 435), Kedar Nath
Bajoria v. The State of West
Bengal ( [ 1954] S.C.R. 30) referred to.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 48 of 1952.
Appeal under article 134(1) (c) of the. Constitution
of India from the Judgment and Order· dated the 21st.
March, 1952, of the High Court of Judicature at Calcutta
(Das Gupta and Lahiri JJ.) in Criminal Appeal No. 77
of 1950 arising out of the Judgment and Order dated
the 29th April, 1950, of the Court of the Additional
Sessions Judge, Burdwan•in Session Trial No. 1 of 1950.
N. C. Chakravarti and Sukumar Ghose for
the
appellant.
B. Sen and /. N. Shroff for the respondent.
G. N. /oshi and P. G. Gokhale for the Intervener
(The Union of India).·
1954. April 20.
The
Judgment of the Court was
delivered by
·
MEHR
CHAND
MAHAJAN C.J.-This 1s
an appeal
'under article 134(1) (c) of the Constitution of India from
the judgment of the High Court at Calcutta dated the
21st of March, 1952, whereby the ·High Court upheld
the conviction of the appellant under section 467 of
the Indian Penal Code but reduced the sentence passed upon him by the Additional Sessions Judge of
'Burdwan.
The appeal concerns one of a. series :of cases known
generally as "The Burdwan Test Relief
Fraud Cases"
.which had their origin in the test relief operations held
in the District of Burdwan in 1943, ' during the Bengal
famine of that
year.
The acute scarcity and the prevailing distress of the famine-stricken people m the
district called for immediate relief and test relief opera- ·
tions were undertaken by the District Board 'in pursuance of the advice of the District Magistrate. The ,
Government of Bengal sanctioned four. lakhs of rupees
:as advance .to the · District Board . for such test relief :
-0perations. The District Board, . however, instead of
'
)
s.c.R.
SUPREME COURT REPORTS
227.
conducting the relief work dire.ctly, appointed several
agents on commission basis through whom the test
relief operations were carried out. This was in clear
violation of the Bengal Famine Code and the Famine
Manual, 1941, and as exceedingly large sums were being
spent the suspicions of the Government were aroused
about the bona fides of the test relief work carried out
through their agents. This led to an inquiry and as a
result of this several cases
were started against various
persons and the appellant's case is one of them.
.
The Government reached the decision that these
cases were not fit for trial by jury and accordingly on
24th February, 1947, a notification was issued for trial
of these cases by the Court of Sessions with the aid of
assessors. The notification is in these terms :-
. "No. 4591-17th February, 1947.-Whereas by a
notification dated the 27th Mar.ch,
1893, published in
the Calcutta Gazette of the same date, it was ordered
that on and after the 1st day of April, 1893, the trial
of certain offences under the Indian Penal Code before
any Court of Sessions in in certain districts including the
District of Burdwan shall be by jury ;
"And whereas by notification No. 33471, dated
the 22nd September, 1939,
published at page
2505 of
Part I of the Calcutta Gazette of the 28th September,
1939, it was · ordered that on and from the 1st day of
January, 1940, the trial of certain other offences
under
the Indian Penal Code before any Court of Session shall
be by jury;
"And whereas certain persons are alleged to have
committed offences under sections 120-B, 420, 467, 468,
471 and 477-A of the Indian Penal Code in a set of cases
known as the 'Burdwan Test Relief Fraud Cases'
of
whom the accused persons in two cases, namely. Emperor v. Dhirendra Nath Chatterjee and Others and (2)
Emperor v. Golam Rahman
and
Others,
have
been
committed to the Court of Session at Burdwan for trial
and the accused persons in the remaining cases · may
nereafter be committed to the said Court for trial ;
.
"Now, therefore, the
Governor in exerc.ise
of the
power conferred by sub-section (1) of section 269 of the
1954
/)hirendra Kumar
Mandal.
y.
The Super in•
tendent and
Remembrnncer
of Legal Affairs to
the Government of
West Bengal
and Another.
Mehr Chand
Mahajan C.J.
D!iirendra. liu"1ar
Mam!a~
v.
'Fhe'Supffln-·
Utzdent· and
RememfirlJncer
of Legal: A.ff airs· to
the Government of
West· &ngal,.
and AMther;
Mehr Chand·
Ma/'4ian C. ].
zzg:
SUPREME COUET REP-ORTS:
[1955}
Code of Crimi:nal Procedure, 1898, is; pleased to· revoke.
the said notifilcations in so far as l:lrey apply to· the trial,
of the O"ffences ·with which the· accused in the said cases
are· charged in the Court of Session."
In pursuance of this notification the appellant along
with six others, was sent up for trial. before the Additional Sessions Judge of Burdwan. The charge against.
him was under section 420 read. with section !20-B,
Indian Penal Code, for. conspiracy to cheat the District:
BoaFd of Burdwan and some of its officers in charge of
the test relief operations between the 21st May, and the
21st July,
1943. The appellant was also charged on
24 counts of forgery und·er section 467, Indian Penaf.
Code
and the case for
the prosecution
agaillst
the
appellant on these counts was that he committed forgery by putting his own thumb impressions on pay sheets
on which the thumb impressions of persons who received
payment for work done on a road which was construct'-
ed as part of a scheme for the relief of the people in
Bnrdwan ought to have been taken. He was one of
the persons
appointed by Jnanendra Nath
Chaudhuri,
an agent, and it was his duty to disburse the. money·
to the mates in charge of the gangs and to take thumb
impressfons on pay sheets
i:n token of receipt of payment. It was alleged that the appellant put his own:
thumb impressions in several cases
mentioned in the
charges with full know ledge that no payment had Deen•
rnade and put names of imaginary persons against the
thumb impressions to make it appear that payments•·
had been made to real persons: and by this process had:
obtained wrongful gain for himsdf and for his employers.
The appellant's plea in defence was that the thumb•
impressions were not his and alternatively if the thumb•
impressions were his, he put them on the authority of
persons whose. names were shown against the
thumb··
impressions and that in putting these thumb impressions· he did not act dishonestly or fraudulently.
The learned Additional' Sessions fudge acquitted the
appellant and' all other accused persons on the charge
of conspiracy
to· cheat under section 420 read with .
-
\ -
-
•
\.. ....
~--
'f
.... _
)
s.c.R.
SUPREME COUR'f REPORTS
se.ction EO--B, Indian Penal Code. He,. however;. convicted the appellant under eleven specific charges of forgery
under section 467,
Indian Penal Code, and
sentenced
him to undergorigorous imprisonment for a period of
one year. On appeal the conviction of the appellant
was affirmed in regard to nine counts only and the
sentence was reduced.
The main point urged by the appellant ill the High
Court was that the trial was vitiated inasmuch as he
was denied the equal protection of
laws under article
14 of the Constitution. The High Court rejected this
contention and held that the appellant's
trial · before
the Additional Sessions Judge with the aid of assessors
was a valid trial in accordance with law. Das Gupta
J .. who delivered
the judgment of the Court observed
as follows :-
"By
this notification,
the
Government acting
in
the exercise of powers under section 269 of the Code of
Criminal Procedure formed one class of all the cases
known as the Burdwan Test Relief Cases, in which
some persons. had prior to the date of the _ notification
alleged to have committed some specified offences and
wit.hdrew from these trial by jury so that these became
triable by the aid of assessors. The question is whether
this classification satisfied
the test
that has been laid
down, mentioned above. In my judgment, these
cases,
which are put in one class, have the common feature
that a mass of evidence regarding the genuineness of
thumb impressions
and
regarding the existence
or
otherwise of persons required consideration. This was
bound to take such a long time that it would be very
difficult, if not impossible, for a juror to keep proper
measure of the evidence.
This common feature distinguished _this class from other cases involving offences
under -the same sections of the Indian Penal Code. The
classification is in my judgment reasonable with respect
to the difference made, viz., the withdrawal of jury trial
and is not arbitrary or evasive."
_ . The appellant made an application to the High Court
for leave to appeal to this. Court arrcf the leave was
allowed: It was contended at the time of the ' leave
L!)54
Dhirendra K-umaf'
Mandal
.v.
-'Fhe Supri1f·
tendent and
Remembranar
of Legal Affairs to1"4 Government of
West Bengal
and Another.
Mehr Chand
Mahajan C. }.
1954
"Dhif-tndra Kuinar
Mandal
v.
Thi Suptrin·
tendenJ and
Remtmhranch'
<bf Lega_l Affairs to
th"e Govtrnmtnt of
·west Bengal
.and Another.
'Mehr ChiJ.rid
.Mahajan C. J.
230
SUPREME COURT REPORTS
[1955]
-that by a notice of• revocation the - State Government
could not deprive particular persons of the right of trial
by jury leaving other persons charged of the same class
or classes of offences with a right to be tried by a jury.
The Bench thought that this was a point of considerable
difficulty and was a fit one to be decided by this Court.
The learned counsel for the appellant urged two points
before us.
In the first instance, he contended that the
notification was m excess of the powers conferred on
the State Government under section 269( 1) of the Code
of Criminal Procedure and that it travelled beyond
that section. Secondly it was urged that the notification denied the appellant equal protection of the laws
and was thus an abridgement of his fundamental right
under article 14 of the Constitution and the view of
the High Court that the classification was not arbitrary
or evasive was incorrect.
At this stage it may be mentioned that the Union
Government, at its request; was ·allowed to intervene
.in this appeal, in view of the contention raised by the
appellant that section 269(1) of the Code of Criminal
Procedure was void
by reason of its being inconsistent
with the provisions of
Part
III of the
Constitution.
The intervention, however, became unnecessary because
the learned counsel for the · appellant ·abandoned this
point at the hearing and did not argue it before us.
As r<:gards the two . points urged by the learm:d
counsel, it seems to us that both the contentions raised
are well founded.
The notification
in
our oplillon,
travels beyond the ambit of section 269(1) of the Code
of
Criminal Procedure.
This
section is . in these
terms:-
"The State . Government may by
order m the
Official Gazette, direct that the trial of all offences,
or
-of any particular class of offences, before -any Court of
Session, shall be by jury in any district, and may revoke
or alter such order."
Though the trial by 1ury is undoubtedly one of the
most
valuabl~ right.s
'Yhich the accused can have,
it
has .not been guaranteed by the . Constitution. Section
269(1) .of the _Cqde of Criminal: _Procedure is an e~abling
¥
-
••
--
i
-
r\
..
S.C.R.
SUPREME- COURT REPORTS
231
section and empowers the State Government to direct
that the trial of all offences or of any particular class
of offences before any Court of Session shall be by jury.
It has the further power to revoke or alter such an
order. There is nothing wrong if the State discontinues
trial by jury in any district with regard to all or any
particular class of offences, ·but the question is whether
it .can direct that the trial of a particular case or of a
particular accused shall be in the Court of Session by
JUry while in respect of other cases involving the same
offence the trial
shall be
by means of assessors.
It
appears to us that the section does n'ot empower the
State Government to direct that the trial of a particular case or of a particular accused person shall be
by
jury while the trial of other persons accused of the same
offence shall not be by jury. On a plain construction
of the language employed in the section it is clear that
the State Government has been empowered to direct
that the trial of all offences or of any particular class
of offences before any Court of Session shall be by jury
m any district. The section does not take notice of
individual accused
or
of individual cases.
It only
speaks of offences or of a particular class of offences,
and does not direct its attention to particular cases or
classes of cases and it does not envisage that persons
accused of the same offence but involved in different
cases can be tried by the Court of Session by a different procedure, namely, some of them by jury and some
of them with the help of assessors. The ambit of the
power of revocation or alteration is co-extensive with
the power conferred by the opening words of the section and cannot go beyond those words. In exercise
of the power of revocation also the State Government
cannot pick out a particular case or set of cases and
revoke the notification qua these cases only and leave
cases of other persons charged with
the same offence
triable by the Court of Session by jury. This was the
construction placed on the section
by Mr. Justice
Chakravarti and was endorsed by some of us in this
Court in The State of West Bengal v. Anwar Ali Sarkar(1).
It was there pointed out that ". a jury trial could
(1) [1952] S.C.R. 284, 326.
1954
Dhirendra Kumar
Mand al
v.
The Superintendent and
Remembrancer
of Legal Affairs to
the Government of
West Bengal,
and Another.
Mehr Chand
Mahajan C. J.
1954.
Dhirendr;a KumtW
Marn/al.
v.
T.be !Superin,
tend.ent ,t1t1d
RemembranGtr
•f Legal Affairs to
-the.tG®i'rnment-0f
W,esJ :Bengdl,
iind Another.
Mehr Chana
~ahajan 1C. J..
232
SUPREME OGU!RT REPORTS.
[1955]
not be :rev13ked ill respect of ,a. particular case :or a
particular accused
while m
respect
of ·other
cases
involving ·the same .offences that .order still remained
in force.
The notification in this .case clearly refers. .to accused
persons invoh:ed m the "Burdwan T.est Relief 'Fraud
cases' ..ind does not '.l'emove from the .,cat~gory of .offences made ,triable ·by jury offences under sections 120-B,
467, . -468, 477 etc., no matter by whom committed ·Or
e;vrn ·committed witb.in a particular
area. The cases
of per-sons other than the accused and involved in offences under ,sections 120-B, 420, 467, 468, 477 are still
triaEile ,by .a Court of .Session by jury.
The language of the earlier ·notification .of 1893, and
of the ·second notification of 1939, by which it was
directed ·that ithe trial in Court of Session of certain
offences in ·certain districts sha:ll be by jury .is significant and is in sharp contrast to the language used in
the operative portion ·of the impugned notification. By
the notification ·of the 27th March, 1893, it was ordered
that ·On ,or after the lst day .of April, 1893, the trial of
certain ·offences under ·the Indian Penal Code before
any Court of Session in .certain .districts including the
District of Burdwan shall be by jury. It will be noticed
that this notification has no reference to cases of any
individuals or particular .accused persons.; it is general
in its terms. By the notification .dated the 22nd September, 1939, it was 00rdernd. that ·On and fr.em ,the 1st
day ·of January, il:940, .the ,trial of certain other .offences under the Indian .P.enal Code before any .Court -0£
.Session shall be by jury. This notification is .also m
general terms.
Jn other WGrds,
the first notification
m.ade out a scohedule "'£ offences and ·directed .that those
offences, irrespective .of the fact by whom they were
committed, be tried by a •Ceurt of Session by jury.
The
second notification added a number of other offences
·to that list. The revocation .order does not subtract
.any offences from ,the list ; .it leaves them intact. What
,it ,does is that· ,it denies to ·.certain individuals the right
1:0 he tried by jury while retainiJ1g that right m die ,case
of other individuals who have committed the same or
similar offences and in this respect it trav.els beyond
4
-"
\
•
...
--
-
..
:S.C.R..
'.SUPREME COURT REPORTS
.233
:the power conferred on the State Government by section 269( 1) of the Code of Criminal Procedure, and is
thus void .and inoperative.
We are further of the opinion that the notification is
also bad as it contravenes the provisions of article 14
'Of
the Constitution. The High Court negatived this
rnntention on the ground that the dassification made
-for -withdrawal of jury trial in these cases was reasonable and was neither arbitrary nor evasive. It was said
that these cases formed one class of cases and that they
had the common feature that a mass of evidence
regarding the genuineness of thumb impressions and
regarding the existence or otherwise of persons required
consideration and that this was bound to take such a
long time that it would be very difficult, if not impos-
;<;ible, for a juror to keep proper measure of the
evidence, and that these common features distinguished this
class of cases from other cases involving
offences under the same sections of the Indian Penal
·Code.
Now it is well settled that though article 14 is
designed to prevent any person or class of persons
from being singled out as a special subject for discriminatory legislation, it is not implied that every law must
have - universal application to _all persons who are not
by nature, attainment or circumstance, in the same
position, and that by pro.cess of classification the State
has power of determining who should be regarded as a
class for purposes of legislation and in relation to a law
enacted on a particular subject ; but the classification,
however, must
be based on some
real and substantial
distinction bearing a just and reasonable relation to
the objects sought to be attained and cannot be made
·arbitrarily and . without
any substantial
basis.
The
notification, in express terms, has
not indicated the
-grounds on which this set of cases has been segregated
from other set of cases falling under the same sections of
1:he •Indian Penal Code. The learned Judges of the High
·Court however thought that this set of cases was put
-"into one class because of their having the ";common fea4ure~ that a mass -of evidence regarding the genuineness
-
-30
1954
Dhirendra Kumar
· Mandal
v.
The Superin•
tendent and
llemembrancer
of Legal Affairs to
the Government of
West Bengal,
.-and Another.
Mehr Chand
_Mahajan C. J.
1954
Dhirendr"a. Kumar
Mandal
•v.
The Superiti·
tendent and
]f.ememhraneer
~J Legal Affairs to
the Government of
, West Bengal,
and Anotherw
·Mehr Chand
Mahqjan C. ].
234
SUPREME COURT REPORTS .
.[1955J
of - thumb impressions and regarding
the existence
or otherwise
of . persons required
consideration
and
this was bound to take such a long time that it would
be very difficult, if not impossible, for a juror to keep
proper measure of the evidence." In our opinioi; this
classification has no relation to the object in view; that
is. the withdrawal of jury trial in these cases. Ther_e
can be mass of evidence in the case of persons accused
of the same offence in other cases or sets of cases. The
mere . circumstance of a mass of evidence, and the suggestion
that owing to the length of time the jurors
might forget what evidence was led before them furnishes no reasonable basis for denying these persons the
right of trial by jury. It is difficult to see how assessors can be expected to have better memory than
jurors in regard to cases in which a mass of evidence
.has to be recorded and which may take a long time.
It is
a matter of daily experience that jury trials take
place
in a number of cases of dacoity, conspiracy,
murder etc. where the trial goes on for months and
months and there is. a mass _of evidence. On that ground
alone a jury trial is not denied, as that is not ,a reasonable basis for denying it. The memory of jurors, assessors, judges and of other persons who have · to form
their judgment on the facts of any case, can afford no
reasonable basis for a classification and for denial of
equal protection of the laws. Similarly, the quantum
of evidence in a particular case 'can form no reasonable
basis for classification and thus can have no ju$$ relation to the object in view. The features mentioned by
the High Court can be common to all cases of forgery,
conspiracy, dacoity, etc.
Mr. Sen for the respondent State contended in t.1:1e
·first instance, that the defect in the trial, if any, was
cured by the provisions of section 536 of the Code of
Criminal Procedure as this objection was not . taken in
the trial Court. In our opinion, this contention is without force.
Section 536 postulates irregularities · at the
trial after the commencement of the proceedings but it
does not concern itself with a notification made under
section 269 (1) which travels beyond the limits of that
f
'
1
(.
..
,..
'
'
~
\_
4
..
'1 •
--r
~
\
~'
-
•
•
:-.... .
'
\
s.c:R. ·
SUPRE.ME COURT REPORTS
235
' .
•
. section or which contravenes article 14 of the ConstituI954
tion.. The chapter of the Code of Criminal Procedure
. -
in which this section .is included deals· with mere Dk'"';:'a aKi"'nar
procedura]_irreglilarities in the procedure committed by
':'.'. a
a Court, and envisages that when an objection is taken;
The 5'!P"fo.
the Court is then enabled to cure the irregularity. . tendent and
. This argument cannot apply to a case like the present. · Remembrancer
'The. ·court had no power.to direct a trial by jury when of Legal Affairs to
th ' G
t h d'
k d •t
t "fi
.
. h the Government of
e
overnmen
a
revo e
1 s no I cation wit
·West Bengal.
reference to these cases.
·Moreover the nature of ·and Another.
the objection is such that· it goes to the very root of
the. jurisdiction of the Court, and such an.objection
Mehr Chand
can be taken notice of at any stage .. Mr. Sen placed
Mahajan C.J.
reliance on a Bench decision of the Madras High Court
in Queen-Empress v. Ganapathi Vannianar and Others(').
The matter there was not considered from the point
of view mentioned above and we do not.thinkthat that
case was correctly decided.
Mr. Sen further argued that in any case the notification in. this case was issued in February, 1947, three
years before the Constitution came into force, and that
though the trial had not concluded befqre the coming
into force of the Constitution, the trial that had started by the Court of Session with the help of assessors
was a good trial and it cannot be said that it was vitiated in any. manner. Now it is obvious that if the
assessors here were in the status of jurors and gave the
verdict of "not guilty"· as they did in this case, the
accused would.have been acquitted unless there were ·
reasons for the Sessions Judge to make a reference to
the High Court to quash the trial. · Clearly therefore
the accused was prejudiced by a trial that continued
after the inauguration of the Constitution and under a
procedure which was inconsistent with the provisions
of article 14 of the Constitution. It was also vitiated
because the notification which authorised it also tra- .
veiled beyond the powers conferred on· the State
Government by section 269 ( 1) of the Code of Criminal
Procedure.
:1Ir. Sen, for the contention that the continuation
of the trial after the inauguration of the Constitution
( 1) I.L.R. 23 Mad. 632.
236
SUPREME COURT REPORTS
[1955] -
z954
under the notification of 1947; even if that notification
.. -
was discriminatory in character, was not invalid, placed
Dhirendra Kum•' reliance on two decisions of ·this Court-(1) Syed
M";dal
KasimRazviv. The State of Hyderabad(') and (2) Habeeb
The superin- lllahomed v. The State of Hyderabad('). In onr opinion,
• tend~tand
these decisions, instead of helping his contention, comRamembranm pletely negative it so far as the facts of this case are
01 Legal Affairs to concerned. In both these decisions, it was pointed out'
the Government of· h
fi
h
f d
· ·
h h
h
. West Bengal
t at or .t e purpose o
etermmmg w et er t e accuand Another: sed was deprived of the protection under article 14,
·
the Court has to see first of all, whether after elimi- ·
Mehr Chand nating the discriminatory provisions it was still possiMahajan O.J. ble to secnre to the accused substantially the benefits
of a trial under the ordinary law; ·and, if so, whether
that was actually. done in the particular case. Now
it is obvious that it is impossible to convert a trial
held by means of assessors into a trial by jury and a
trial by jury could not be introduced at the stage wheri
the procedure prescribed by the notification became
discriminatory in character. It is not a case where the
discriminatory provision of the law can be separated
from the rest., Again, a-fair measure of equality in the
matter of procedure cannot be secured to the accused
in this kind of cases. As pointed out in Syed Kasim
Razvi' s case(') if the normal procedure is trial by jury or
.with the aid of assessors, and as a matter of fact there
was no jury or assessor trial at the beginning, it would
not be possible to introduce it at any subsequent stage
and that having once adopted the summary procedure
it is not possible to pass on to a different procedure at
a later date. In such cases the whole trial wquld have _
to be condemned as bad. The same was the view taken
by this Court in Lachmandas Kewalram Ahuja v. The
State of Bombay (').
That case proceeded on the
assumption that it was not possible for the Special
Court to_avoid the discriminatory procedure after the
26th January, Hl50. Therefore the trial was bad. In
view of these observations, it is not possible to accept·
this part ofMr. Sen's contention.
(1) [1953] ~.C.R. 589.
(2) [1953] S.C.R. 661.
(3) [1952] S.C.R. 710.
-
-
S.C.R.
SUPREME COURT REPORTS
237
Mr. Sen, in his quiet inanner, faintly suggested
that in view of the decisions of this Court in Kathi
Raning Rawat v.
The State of Saurashtra (1)
and
Kedar Nath Bajoria v. The State of West Bengal(2), the
decision of this Court in Anwar Ali Sarkar's case(3), in
,
which it was pointed out that the State Government
could not pick out a particular case and send it to Spe-
" cial Court for trial, had lost much of its force. It seems
~. · to us that this suggestion is based on a wrong assumption that there is any real conflict between the decision
in Anwar Ali Sarkar's case( 3 ) and the decision in the Saurashtra case(1) or in the case of Kedar Nath Bajoria(2). It
has been clearly pointed out by this Court in Kedar
Nath Bajoria's case that whether
an enactment providing for special procedure for the trial of certain offences
; is or is not discriminatorv and violates article 14 of the
'Constitution must be
d~termined in each case
as it
arises, and no general rule applicable to all cases
can
be laid down. Different views have been expressed on
the question of application of article 14 to the facts
and circumstances of each case but there is no differ-
. ence on any principle as to the construction or scope of
article 14 of the Constitution.
The majority
judgment
~;-in Kedar Nath Bajoria v. The State of West Bengal(2)
distinguished Anwar Ali Sarkar's case(3) on the ground
that the law in Bajoria's case(2) was based on a classification which, in the context of the abnormal post-war
economic and social conditions, was readily intelligible
and obviously
calculated to subserve the legislative
purpose, but did not throw any doubt whatsoever on the
· correctness of that decision.
The present notification
)..__ i~ m<;>re on the lin~s of th~ Ordinance that was in qu~s
' •t1on m Anwar Alt Sarkar s case(3) and has no affinity
\_
to the Ordinance and the attending circumstances that
were considered in the Saurashtra case(1) or in the case
of Kedar Nath Bajoria(2) and in the light of that decision it must be held that the notification issued in 1947
became discriminatory in
character
on
coming
into
force of the Constitution and was hit by article 14 of
the Constitution.
--11111~·· (1) [1952] S.C.R. 435.
(2) [1954] S.C.R. 30.
1954
Dhirendra Kumar
Manda!
v.
The Superintendent and
RerMmbrancer
of Legal Affairs ta
the Government of
West Bengal,
and Another•
Mehr Chand
Mahajan C. J.
1954.
Dh'ifendra K uma1
Mimdal
v.
The Superin-·
tendtnt and ·
Remembrancer'.
of·Legal ·Affairs_ to
the. Government of
Wes~ Bengal,
and Another.;
1954
M•y5
238
SUPREME COURT REPORTS
[1955}:
The result therefore is that the trial of the appellant .,,.
after the 26th January, 1950, by the Sessions Judge-·
with the aid of assessors was bad and must therefore:,
be quashed and the conviction set aside. In our opin- .
ion, it would not advance the ends of justice if at this:
stage a fresh trial by jury is ordered in this case. We·
therefore allow the appeal, set aside the conviction of'
the appellant and direct that he be set free.
Appeal allowed.
NAR SINGH AND ANOTHER
v.
THE STATE OF VTTAR PRADESH.
r
[MuKHERJEA, VIVIAN .BosE and GHULAM HASAN JJ.J
Constitution of lm.fia-Articles 134(1) (c) and 136(1)-CertificJ>Je by High Court wrongly .granted under art. 134(J)(c) under
wrong vietp of law-Interference by Supreme Court-Special LeaVe
under art. 136(1).
Out of 24 persons originally
tried under sections 302/149 etc.
--
LP .C. only three were ultimately convicted by
the
High
Court~
The High Court however by mistake convicted N, one of the three,
whom it meant to acquit.
Later; it communicated its mistake to
Government.
Government passed orders remitting the sentence
mistakenly
passed on N and directed ,his release. N and the oth~r
two
convicts presented an application under article 134(1)(c) for a
,..
certificate.
The High Court granted a certificate to N consideririg
that
otherwise the
stigma of the charge of murder might affect
him adversely in the future. As regards the other two, there was
nothing in their cas.es to warrant the issue of a certificate but the
High Court granted them a certificate thinking that it was
boun<j,-t,
to do so because article 134(1)(c) speaks of a "case" and the onJy
_/
case befOre it was the appeal as a whole.
Held, (!) that th.e view of the High. Court 'Yas wronj( becau;e
the .word "case" used in article 134( 1) ( c) means the cai,c of ea~h
individual person.
'f
(2) That the High Court had misdirected itself about the l~w
in
respect of the two convicts and did not exercise the discretiOn
vested in it thinking either that it had no discretion in the matter
or that its discretion. was ~ettered and therefore the Supreme Co~
having general' ·powefs of ludicial superintendence over all Courts
in India was bound to intcrfeic.