# SUPREME COURT REPORTS [1960(2)] KANGSARI HALDAR & ANOTHER v. TH;E STATE OF WEST BENGAL '

- **Citation:** [1960] 2 S.C.R. 646
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Criminal Appeal No. 204 of 1959
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, A. K. Sarkar, K. Subba Rao, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1960-2-kangsari-haldar-another-v-th-e-state-of-west-bengal-1764
- **Pages:** 25

## Headnote

Criminal Trial-Staiute providing for trials by special Tribunals of specified offences committed in distt<rbed areas during
specified periods-Constitutionality-Reasonable classification-Test
•
-Tribunals of Criminal Jurisdiction Act, I952 (W.B. Act XIV of
I952), s. 2(b), proviso to s. 4(I).
The appellants were prosecuted for having committed
offences under s. l20B read with ss. 302 and 436 of the Indian
Penal Code and their case was taken up for trial before the Third
Tribunal constituted under the West Bengal Tribnnals of Criminal Jurisdiction Act, 1952 (W.B. Act XIV of 1952).
By a
notification dated September 12, 1952, and issued under s. 2(b)
of the Act the Government of West Bengal declared the whole
area within the jurisdiction of Kakdwip and Sagar Police Stations
to be a disturbed area and specified the period from January l,
1948, to March 31, 1950, to be the period during which the notification was to be effective. The case against the appellants was
that between the dates mentioned in the notification, they took
leading part in a violent movement called the Tebhaga movement
in Kakdwip and incited the Bhagehasis, i.e., the cultivators who
actually cultivated the land, to claim the entire crop instead of
2/3 share of it and that they preached murder and arson amongst
the cultivators and such preaching was followed by arson and
murder on a large scale.
The appellants moved the High Court
for an order quashing the proceedings against them on the ground
that s. 2(b) of the Act, which allowed the Government to declare
an area in which ''there was" disturbance in the past to be a
disturbed area, offended Art. r4 of the Constitution as discriminating between persons who had committed the same offences
and whose trials had already concluded before the notific~tion
under the normal and more advantageous procedure and others
whose trials had not concluded and who had to be tried by a less
advantageous and special procedure prescribed by the Act. The
application of the appellants was first heard by a bench of two
judges but as there was difference of opinion between them the
matter was referred to a third judge, and the High Court by a
majority held that the provisions of the impugned Act were
intra vires and did not offencj Art. 14 of the Constitution.
On appeal by special leave challenging the vires of s. 2(b)
and the proviso to s. 4(1) of the Act,
Held (per Sinha, C.J., Gajendragadkar and Shah, JJ.), that
the equality before law, guaranteed by Art. 14, no doubt prohibits
class legislation but it does not prohibit the Legislature to legislate
•
,.
--
S.C.R.
SUPREME COURT REPORTS
647
on the basis of a reasonable classification. If any state of facts can
reasonably be conceived to sustain a classification, the existence
of that state of facts must be assumed.
Chiranjitlal Chaudhuri v. The Union of India and Others, [r950]
S.C.R. 869 and Kedar Nath Bajoria v. The State of West Bengal,
[r954] S.C.R. 30, followed.
Where the classification is reasonable and is founded on an
intelligible differentia and that differentia has a rational relation
to the object sought to be achieved by the statute, the validity of
the statute cannot be successfully challenged under Art. r4. Since
the classification made by the impugned Act is rational and the
differentia by which offenders are classified has a rational relation
with the object of the Act to provide for the speedy trial of the
offences specified in the Schedule, s. 2(b) and the proviso to s. 4(r)
of the Act cannot be said to contravene Art. r4 of the Constitution evell. though the procedure prescribed by the Act may amount
to discrimination.
·
The State of West Bengal v. Anwar Ali Sarkar, [r952] S.C.R.
284, distinguished.
Kathi Raning Rawat v. The State of Saurashtra, [1952] S.C.R.
435, Lachmandas Kewalram Ahuja and Another v. The State of
Bombay, [r952] SC.R. 7ro and Gopi Chand v. Delhi Administration,
A.LR. 1959 S.C. 609, considered.
Per Sarkar and Subba Rao, JJ. (dissenting).-Whether a

## Text

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r959
December I8.
646
SUPREME COURT REPORTS [1960(2)]
KANGSARI HALDAR & ANOTHER
v.
TH;E STATE OF WEST BENGAL
'
(B. P. SINHA, C.J., P. B. GAJENDRAGADKAR,
A. K. SARKAR, K. SUBBA RAO AND J. c. SHAH, JJ.)
Criminal Trial-Staiute providing for trials by special Tribunals of specified offences committed in distt<rbed areas during
specified periods-Constitutionality-Reasonable classification-Test
•
-Tribunals of Criminal Jurisdiction Act, I952 (W.B. Act XIV of
I952), s. 2(b), proviso to s. 4(I).
The appellants were prosecuted for having committed
offences under s. l20B read with ss. 302 and 436 of the Indian
Penal Code and their case was taken up for trial before the Third
Tribunal constituted under the West Bengal Tribnnals of Criminal Jurisdiction Act, 1952 (W.B. Act XIV of 1952).
By a
notification dated September 12, 1952, and issued under s. 2(b)
of the Act the Government of West Bengal declared the whole
area within the jurisdiction of Kakdwip and Sagar Police Stations
to be a disturbed area and specified the period from January l,
1948, to March 31, 1950, to be the period during which the notification was to be effective. The case against the appellants was
that between the dates mentioned in the notification, they took
leading part in a violent movement called the Tebhaga movement
in Kakdwip and incited the Bhagehasis, i.e., the cultivators who
actually cultivated the land, to claim the entire crop instead of
2/3 share of it and that they preached murder and arson amongst
the cultivators and such preaching was followed by arson and
murder on a large scale.
The appellants moved the High Court
for an order quashing the proceedings against them on the ground
that s. 2(b) of the Act, which allowed the Government to declare
an area in which ''there was" disturbance in the past to be a
disturbed area, offended Art. r4 of the Constitution as discriminating between persons who had committed the same offences
and whose trials had already concluded before the notific~tion
under the normal and more advantageous procedure and others
whose trials had not concluded and who had to be tried by a less
advantageous and special procedure prescribed by the Act. The
application of the appellants was first heard by a bench of two
judges but as there was difference of opinion between them the
matter was referred to a third judge, and the High Court by a
majority held that the provisions of the impugned Act were
intra vires and did not offencj Art. 14 of the Constitution.
On appeal by special leave challenging the vires of s. 2(b)
and the proviso to s. 4(1) of the Act,
Held (per Sinha, C.J., Gajendragadkar and Shah, JJ.), that
the equality before law, guaranteed by Art. 14, no doubt prohibits
class legislation but it does not prohibit the Legislature to legislate
•
,.
--
S.C.R.
SUPREME COURT REPORTS
647
on the basis of a reasonable classification. If any state of facts can
reasonably be conceived to sustain a classification, the existence
of that state of facts must be assumed.
Chiranjitlal Chaudhuri v. The Union of India and Others, [r950]
S.C.R. 869 and Kedar Nath Bajoria v. The State of West Bengal,
[r954] S.C.R. 30, followed.
Where the classification is reasonable and is founded on an
intelligible differentia and that differentia has a rational relation
to the object sought to be achieved by the statute, the validity of
the statute cannot be successfully challenged under Art. r4. Since
the classification made by the impugned Act is rational and the
differentia by which offenders are classified has a rational relation
with the object of the Act to provide for the speedy trial of the
offences specified in the Schedule, s. 2(b) and the proviso to s. 4(r)
of the Act cannot be said to contravene Art. r4 of the Constitution evell. though the procedure prescribed by the Act may amount
to discrimination.
·
The State of West Bengal v. Anwar Ali Sarkar, [r952] S.C.R.
284, distinguished.
Kathi Raning Rawat v. The State of Saurashtra, [1952] S.C.R.
435, Lachmandas Kewalram Ahuja and Another v. The State of
Bombay, [r952] SC.R. 7ro and Gopi Chand v. Delhi Administration,
A.LR. 1959 S.C. 609, considered.
Per Sarkar and Subba Rao, JJ. (dissenting).-Whether a law
offends Art. r4 or not does not depend upon whether it is prospective or retrospective for both prospective and retrospective
statutes may contravene the provisions of that Article. Although
the general rule is that a law must apply to all persons, it is permissible to validly legislate for a class within certain wellrecognised limits. The true test of a valid classification is that
it must be capable of being reasonably regarded as being based
upon a differentia which distinguishes that class from others, and
the differentia itself must have a reasonable relation with the
object the statute has in view.
Shri Ram Krishna Dalmia v. Shri Just'ice S.R. Tendolkar,
[r959] S.C.R. 279, followed.
The object of the Act in question being to secure a speedy
trial of certain offences committed in a specified area during a
specified period of time in the interest of the security of the State
and the maintenance of public peace and tranquillity in a
disturbed area, a distinction made between the cases where the
trials had been concluded and the cases where the trials had not
yet been concluded, is not a distinction which has any rational
relation to the object. In order to secure that object it is necessary to place both classes of persons in the same situation.
Gopi Chand v. Delhi Administration, A.LR. 1959 S.C. 609,
distinguished.
I959
Kangsari H aldar
and Another
v.
The State of
West Bengal
648
SUPREME COURT REPORTS [1960(2)]
1959
The Act in so far as it permits an area which was a disturbed
area in the past to be declared a disturbed area for the purposes
Kangsari Haldar of the Act offends Art. r4 of the Constitution and is, theretore,
and Another
unconstitutional and void. That portion of s. z(b) which declares
v.
The Slate of
West Bengal
an area to be a disturbed area in the past and the notification in
question must therefore be held to be void.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 204 of 1959.
Appeal by special leave from the judgment and
order dated June 23. 1959, of the Calcutta High Court
in Criminal Revision No. 640 of 1958.
S. K. Acharya and Janardan Sharma, for the appellants.
S. M. Bose, Advocate-General for the State of West
Bengal, K. C. Mukherjee and P. K. Bose, for the
respondent.
1959. December 18. The judgment of Sinha, C. J.,
Gajendragadkar and Shah, JJ. was delivered by
Gajendragadkar J. The judgment of Sarkar and
Subba Rao, JJ .. was delivered by Sarkar, J.
Gajendragadkar J.
GAJENDRAGADKAR J.-This appeal by special leave
challenges the vires of s. 2(b) and the proviso to s. 4(1)
of the West Bengal Tribunals of Criminal Jurisdiction
Act, 1952 (W.B. Act XIV of 195~) (hereinafter called the
Act).
A complaint was filed against Kangsari Haldar
and J ogendra Nath Guria (hereinafter called the appellants) in which it was alleged that the appellants along
with some others had committed offences under s. 120B
read with ss. 302 and 436 of the Indian Penal Code.
The case against them was that in 1947 a tebhaga
movement had been launched in Kakdwip area by
the communist party and that later on the Bhagehasis
were persuaded to claim the entire and not only 2/3 of
the produce in pursuance of the said movement. It was
further alleged that the leaders of said movement including the appellants preached murder and arson amongst
the cultivators and that such preaching and propaganda were followed by arson and murders on a large
scale. It was on these allegations that a charge-sheet
was submitted against the appellants and the case
t
'
•
•
-
-
-
S.C.R.
SUPREME COURT REPORTS
649
against them taken up for trial before the Third Trir959
bunal at Alipore constituted under the Act. Ninety-
.
.
b
h
Kangsari Halda1
· nme witnesses were examined
y t e prosecution in
and Another
support of its case and the tribunal framed charges
v.
against the appellants under the three sections already
The State of
··mentioned by its order dated May 16, 1958.
The
West Bengal
~e~e~~er~~~ &:e~!~~~~e:~:~~~ tK.:i:vJa!~:~Y c{~~l~: Gajendragadkar ].
and ending on March 31, 1950, within Kakdwip and
Sagaour police stations.
By their Criminal Revision Application No. 640 of
1958 the appellants challenged the validity of the
proceedings before the tribunal and applied for quashing the said proceedings and the charges framed
against them under s. 439 of the Code of Criminal
Procedure as well as Art. 227 of the Constitution in
the Calcutta High Court. Their application was first
hearll by Mitter and Bhattacharya, JJ.; but since there
was a difference of opinion between the two learned
· judges the case was referred to Sen, J. Bhattacharya, J.,
had taken the view that the impugned provisions of
the Act were ultra vires and so he was inclined to allow
the revision application and quash the proceedings
taken against the appellants; on the other hand,
Mitter, J., had taken a contrary view, and Sen, J., to
whom the matter was referred agreed with the view
taken by Mitter, ,T.
In the result it was held that the
impugned provisions of the Act were intra vires and
so the rule issued on the appellants' revision application was discharged and the application itself was
dismissed. The appellants then applied to the said
High Court for a certificate either under Art. 132 or
under Art. 134 of the Constitution but their applications were dismiss!;)d. Thereupon they moved for, and
obtained, special leave from this Court. That is how
' this appeal has come before this Court; and the only
point which it raises for our decision is about the vires
of the two impugned provisions of the Act.
'On behalf of the appellants Mr. Acharya has contended that the genesis of the Act should be borne in
mind in dealing with the vires of the impuged provisions; and in support of this argument be h!lis strongly
83
•
650
SUPREME COURT REPORTS [1960 (2)]
x959
relied on the sequence of events which led to the pass-
'(
-.
H Id
ing of the Act. It appears that the West Bengal
" angsar1
a ar S
· 1 C
t A t X f 1950
d b
h
and Another
pec1a
ou;r s
c
1 o
, was passe
y t e West
v.
Bengal Legislature and came into force on March 15,
n, state of
1950. The vires of s. 5(1) of the said Act were impeachWest Bengal
ed by Anwar Ali Sarkar and others who were being tried
-
under the provisions of the said Act. On August 28,
Gajendragadkar f.1951, the Calcutta High Court partially upheld the
plea and struck down a part of s. 5(1).
The said decision was challenged by the State of West Bengal before
this Court in The State of West Bengal v. Anwar Ali
Sarkar('); but the appeal preferred by the State was
dismissed; and by a majority decision of this Court
not only a part of s. 5(1) but the whole of it was
declared to be ultra vires as being violative of Art. 14
of the Constitution. This decision was pronounced on
January 11, 1952.
Soon thereafter an Ordinance was
promulgated (No. 1 of 1952) by the West Bengal
Government on March 24, 1952, and in due course this
Ordinance was replaced by the Act which came into
force on July 30, 1952. Section 12 of the Act purports
to repeal the earlier Act of 1950 in conformity with
the decision of this Court in Anwar Ali Sarkar' s
case('). The argument is that by passing the. Act the
West Bengal Government has attempted to achieve
the same result which it intended to achieve by s. 5(1)
of the-earlier Act, and so, according to the appellants,
in substanc<' the decision of this Court in Anu·ar Ali
Sarkar' s case ( 1) should govern the decision of the
present appeal. In any case it is urged that the
sequence of events which supply the background to
the present Act should carefully be borne in mind in
dealing with the merits of the points raised by the
appellants.
.
The challenge to the vires of the impugned provi·
sions is based on the ground that they violate the
fundamental right guaranteed by Art. 14 of the Constitution. The scope and effect of the provisions of
Art. 14 have been considered by this Court on several
occasions, and the matter has been clarified beyond
all doubt. The equality before law which is guaranteed by Art. 14 no doubt prohibits class legislation
(1) [1952] S.C.R. 284.
--
S.C.R.
SUPREME COURT REPORTS
651
but it does not prohibit the Legislature from legisz959
lating on the basil! of a reasonable classification.
If the classification is reasonable and is founded on Kangsari Haldar
and Another
intelligible differentia and the said differentia have a
v.
rational relation to the object sought to be' achieved
The Staie of
by the statute based on such reasonable classification
West Bengal
the validity of the statute cannot be successfully
.
-dk 1
challenged under Art. 14. These propositions have GaJendr~ga ar
•
been repeated so many times during the past few-years
that they now sound almost platitudinous. Thus the
enunciation of the principles which flow from the
fundamental rights enshrined in Art. 14 now presents
no difficulty; it is, however, in the application of the said
principles that difficulties often arise. In applying the
said. principles to the different sets of facts presented
by different cases emphasis may shift and the approach
may not always be identical; but it is inevitable that
the final decision about the vires of any impugned
provision must depend upon the decision which the
court reaches, having regard to the facts and circumstances of each case, the general scheme of the
impugned Act and the nature and effect of the provisions the vires of which are under examination.
Let us, therefore, first examine the relevant scheme
of the Act and ascertain the effect of the provisions
under challenge.
'
The Act was passed because the Legislature thought
it expedient in the interest of the security of the State,
the maintenance of public peace and tranquillity and
the due safeguarding of the industry and business, to
provide for the speedy trial of the offences specified in
the schedule. Section 2(b) defines a disturbed area a.s
meaning an area in which in the opinion of the State
Government-'--(i) there was, or (ii) there is, any extensive disturbance of the public peace and tranquillity
and in respect of which area the State Government has
issued a notification declaring such area to be a
disturbed area. The section then adds that in cases
falling under cl. (i) the 'notification shall have effect
during such period as may be specified therein, and in
cases falling under cl. (ii) the notification shall have
efieot from such date as may be specified in the
•
652
SUPREME COURT REPORTS [1960 (2)]
x959
notification until the notification is revoked. It would
thus be noticed that the disturbe"d area can be of two
Kangsari Haldar
and Anoth"
categories; it can be an area where extensive disturbv.
ance as described had taken place but at the time of
The State of
the notification the disturbance may have ceased;
West Bengal
and an area where the disturbance is taking place at
-
the time of the notification. In respect of the first
Gajendragadkar J. category of disturbed areas the notification has to
specify the period covered by the previous disturbance,
and it is the specified offences which had taken place
during the said period that fall within the mischief of
the Act. In the case of the notification issued in
respect of areas where disturbances are taking place
the notification has effect from such date as it me"y
specify and it will COIJ,tinue to be in operation until it
is revoked. Section 2(d) defines a scheduled offence as
any offence specified in the schedule and s. 2(e) defines
a tribunal as meaning a tribunal of Criminal J urisdiction constituted under sub-s. (1) of s. 3. The scheduled
offences are specified in four items. ltem 1 deals with
offences against the St.;1te prescribed by ch. 6 of the
Indian Penal Code. Item 2 deals with some of the
offences against human body and property covered
by eh. 16 and ch. 17 of the Code. Item 3 refors to
some of the said offences if they are committed in the
course of a raid on or a riot in a factory or a mill or a
workshop or a bank or in relation to transportation of
property to or from a factory, mill, workshop or bank;
and the last item covers cases of conspiracy to commit
or any attempt to commit or any abetment of any of
the offences specified in items 1 to 3.
The scheme of
the Act is thus to appoint special tribunals to try the
scheduhd offences which have taken place in disturbed areas as defined in s. 2(b). That is the effect of
s. 4 of the Act. The proviso to s. 4(1) enables the
tribunal when it is trying any case to try in its discretion any offence other than a· scheduled offence with
which the accused may under the Code be charged at
the same trial. In other words, the trial of an accused
person in respect of the scheduled offences may include
any other offence which is not included in the schedule
and which would be triable under the provisions of the
..
(
S.C.R .
SUPREME COURT REPORTS
653
Code. As we have already indicated the present appeal
I959
challenges the vires of s. 2(b) and tae proviso to s. 4(1). Kangsari Haldar
It cannot be disputed that the procedure prescribed
and Another
for the trial before the tribunal under the Act differs
v.
in some material particulars from the procedure
The State of
prescribed by the Code, and the said· difference can be
wes~gal
. treated as amounting to discrimination which is pre- Gajendragadkar J.
judicial to the accused ; under the Act no commitment
proceedings have to be taken and the benefit of jury
trial is denied. The provision made by the first prt>viso
to s. 5 in respect of adjournment of the trial is also
stricter and more stringent. Similarly, the right of an
accused person to claim a de novo trial where a judge
presiding over a tribunal ceases to be available before
the completion of the trial is also materially affected
by the provisions of s. 6. Section 10 makes applicable
the provisions of the Code or of any other law for the
time being in force which may be applicable to the
trial of criminal cases in so far as they are not inconsistent with the provisions of the Act. Thus it may
be conceded that the appellants are entitled to complain that on the whole the procedure prescribed for
the trial of scheduled offences under the Act amounts
to discrimination. The question is whether such discrimination violates the provisions of Art. 14.
This question necessarily leads us to inquire whether
the discriminatory provisions of the Act. are based on
any rational classification, and whether the differentiation of the offenders brought within the mischief of
the Act has a rational nexus with the policy of the
Act and the object which it intends to achieve. The
preamble shows that the Legislature was dealing with
the problem raised by disturbances which had thrown
a challenge to the security of the State and raised a
grave issue about the maintenance of public peace and
tranquillity and the safeguarding of industry and
business. It, therefore, decided to meet the situation
by providing for speedy trial of the scheduled offences.
Thus the object of the Act and the principles underlying it are not in doubt. It is true that speedy trial
of all criminal offences is desirable; but there would
be no difficulty in appreciating the anxiety of the
/
,,
654
SUPREME COURT REPORTS [1960 (2))
r959
Legislature to provide for a special procedure for
K
. H Id
trying the scheduled offences so as to avoid all possible
angsari
a ar d 1
h" h
b .
l d "f h
1
d
and Another
e ay w w may e mvo ve
I
t e norma proce ure
v.
of the Code was adopted. If the disturbance facing
The State of
the areas in the State had to be conti"olled and the
w"' Bengal
mischief apprehended had to be checked and rooted
Gajendmgad,\ar ]. out a very speedy trial of the offences committed was
•
obviously indicated.
The classification of offenders who are reached by
the Act is obviously reasonable. The offences specified in the four items in the schedule are clearly of such
a character as led to the disturbance and it is these
offences which were intended to be speedily punished
in order to put an end to the threat to the security
of the State and the maintenance of public peace and
tranquillity. It would be idle to contend that if the
offences of the type mentioned in the schedule were
committed and the Legislature thought that they led
to the disruption of public peace and tranquillity and
caused jeopardy to the security of the State they could
not be dealt with as a class by themselves. Other
offences committed by individuals under the same
categories of offences specified by the Code could be
rationally excluded from the classification adopted by
the Act because they did not have the tendency to
create the problem which the Act intended to meet.
We are, therefore, satisfied that the classification made
by the Act is rational and the differentiation on which
the offenders included within the Act are treated as a
class as distinguished from other offenders has a
rational nexus or relation with the object of the Act
and the policy underlying it. Therefore, it would be
difficult to accede to the argument that the Act violates
Art. 14 of the Constitution.
It is, however, urged that s. 2(b)(i) is not intra vires
because the classification on which it is based violates
Art. 14.
This contention has taken a two-fold form.
It is urged that the notification which is aut]J.orised to
be issued under s. 2(b)(i) necessarily deals with an area
which has ceased to be disturbed at the time when it
is issued; and it is inevitable that when such a notification is issued some of the offences which would have
-
-
S.O.R.
SUPREME COURT REPORTS
655
been tried under the Act as a result of the notification
r959
may have already been tried under the ordinary Code,
-:-
d
d · ·
1
h
d"
d f
h
Kangsari Hal ar
an it is on y sue cases as are not ispose o .on t e
d A
th ,
date of the notification which would fall within the
an
no
8
v.
mischief of the Act and that constitutes an irrational
The State of
or arbitrary classification. It is also urged.that when 'West Bengal
the area covered by such. a notification has ceased to
-
be disturbed there is no rational or valid justification Gajendragadkar f.
for.applying the Act to the offences committed in such
an area when in the other continuously undisturbed
areas similar offences would be tried under the normal
provisions of the Code. In fact it is these two aspects
of the question which have been strongly pressed
before us by Mr. Acharya in the present appeal. Before
dealing with these two arguments it would be relevant
to recall that this Court has accepted the general
principle that "if any state of facts can reasonably be
conceived to sustain a classification, the existence of
that state of facts must be assumed " (Vide: Ohiranjitlal Chaudhuri v. The Union of India & Ors. (1) and
Kedar Nath Bajoria v. The State of West.Bengal (2) ).
It is quite true that when a notification is issued
under s. 2(b)(i) specifying the period during which the
area in question was disturbed some offences though
falling under the schedule might have been tried under
the Code while some others which may be pending at
the date of the notification would be tried under the
Act. But ~loes that introduce any vice in the classification ? If the area was disturbed and the notification
specifying the period of such disturbance is otherwise
justified in the sense that the speedy trial of the scheduled offences committed during the specified period can be
validly directed, then the fact that some offences had
already been tried before the notification cannot, in
our opinion, introduce any infirmity in the statutory
provision itself. It must be remembered that the
classification on which the impugned notification rests
is between the scheduled offences committed in an
area which is declared to be a disturbed area and
similar offences committed elsewhere in the State;
and so the fact that some of the scheduled offences
(1) [1950] S.C.R. 869 at p. 877.
(2) [1954] S.C.R. 30 at p. 39.
656
SUPREME COURT REPORTS [1960(2))
r959
escaped the operation of the notification because they
had been already tried cannot affect its legality or
Kangsari Haldar
andAnother
validity. Such an adventitious or accidental result
v.
cannot sustain the attack against the classification
The State of
which is otherwise rational, reasonable and valid. In
West Bengal
fact it would not be easy or always possible for the
G . d--dk
1 Legislature to prevent such an accidental escape of
a;en raga ar
•
f
h
. .
f
. l
.c
some cases rom t e prov1s10ns o a spema statute 1or
the reason that they had already been decided .. If the
statute had permitted discrimination between cases
under the scheduled offences which 'till remained to
be tried that would have been another matter. In our
opinion it would be unreasonable to requisition the
assistance of cases which had been disposed of and
have become a matter of history to challenge the
classification in question.
The second contention is also without substance
because it ignores the material difference between the
character of the offences committed during the- specified period in the disturbed area and offences committed in continuously undisturbed areas. The offences
committed in areas subsequently declared to be
disturbed led to and were the cause of the extensive
disturbance. In consequence of such disturbance
investigation into such offences is rendered difficult; it
is not easy in such disturbed conditions to collect and
marshal! evidence because witnesses are apt to be
terrorised, and though the area has ceased to be
disturbed absence of disturbance may be temporary,
and unless the offenders are brought to book speedily
the temporary pe"ace may turn out to be the lull
before another storm. That is why even in respect of
areas which have ceased to be disturbed, offences
committed when the area was disturbed during the
period specified in the notification are required to be
, tried under the Act. Such offences cannot, in our
opinion, be reasonably compared with offences committed under the same sections of the Code in continuously undisturbed areas. In their essential features
the two offences form two distinct and different
categories and the contention that the classification
of the offences made in such a case is irrational must,
•
-
-~
-...
<
~-
' -
-
S.C.R.
SUPREME COURT REPORTS
657
therefore, be rejected. The argument that some
x959
limitation of time should have been prescribed within
-
h. h th
t'fi
·
h
ld b ·
d d 1 ·
h Kangsari Haldar
w ic
e no I cation s ou
e issue
ec armg R~C
and Another
areas to be disturbed ignores the fact that prescription
v.
of such limitation may in some casfls defeat the
The State of
purpose of the Act itself. If the offenders abscond or
West Bengal
go underground, a.s in the present case appellant I did,
. --
h
. d fl' ·
.
b
'b db
dGa;endragadkar J
ow can any perio o imitation e prescn e
eyon
·
which the power to issue notification cannot be
exercised? In issuing such notification several relevant factors pertaining to the local situation in the
area have to be taken into account; and so failure to
prescribe any limitation cannot introduce any infirmity
in the provision.
It is conceivable that the notification issued under
s. 2(b)(i) may be colourable or mala fide but in such a
case it is the validity of the notification which can be
successfully challenged, not the vires of the statute
under which it is issued. The colourable or mala fide
exercise of the power in issuing a notification would
undoubtedly affect the validity of the notification
itself; but the possihility of such abuse of power
cannot reasonably affect the vires of the statute
itself. Mr. Acharya no doubt suggested that the
object of the impugned notification was to bring only
the case of the appellants under the mischief of the
Act but he frankly conceded that he had not made
such a specific plea in his petition and that, though it
would be possible for him to urge that a large majority
of the scheduled offences committed during the specified period had already been tried under the Code, it
would not be possible for him to sustain the plea on
the material available on the record that the notification has been issued solely with a view to bring the
case of the appellants alone under the mischief of the
Act. That is why this· aspect of the matter does not
fall to be considered in the present appeal.
The next argument is that the proviso to s. 4(1) is
ultra vires. Wedonotthinkthat here is any substance
in this argument. What the proviso does is to enable
the tribunal to try any offence other than the
scheduled offence with which the accused may be
Bt
658
SUPREME COURT REPORTS (1960(2)]
z959
charged and which would be ordinarily triable under
the provisions of the Code. But does this amount to
Kangmi Haldar an infringement of Art. 14 at all? In our opinion the
and Another
b
h
v.
answer to this question must
e in t e negative. It
The State of
is significant that the proviso leaves it to the discrewes1 Bengal
tion of the tribunal whether or not any other offence
-
should be tried under the Act along with the scheduled
Gajendragadkar J. offence charged against the accused in a given case.
Besides there can be no doubt that the offences other
than the scheduled offences which may be included in
a trial under the Act would be minor or allied offences
the proof of which would follow from the facts
adduced in support of the major offences. That in
fact is the position even under the provisions of the
Code. If the trial of the major scheduled offence
under the Act is justified and valid the impugned
proviso does nothing more than enable the tribunal to
decide whether the accused is guilty of any minor or
allied offence. In our opinion, therefore, the challenge
to the proviso in question cannot succeed.
It now remains to consider the decisions to which
our attention was invited. In the case of Anwar Ali
Barkar (1) wheres. 5(1) of the Bengal Act X of 1950
was impeached the majority decision was that the
said section was wholly invalid. The preamble to the
Act had merely stated that it was expedient to provide for the speedy trial of certain offences, ands. 5(1)
had empowered a special court to 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. According to the majority decision
the preamble to the Act was vague and gave no
indication about the principles underlying it or the
object which it intended to achieve; and it was afso
held that s 5(1) vested an unrestricted discretion in
the State Government to direct any cases or classes of
cases to be tried by the special court. It was observed
that the necessity of a speedier trial mentione<l in the
preamble was. too vague, uncertain and elusive a
criterion to form a rational basis for the discriminations made, and that it was unreasonable to have
left to the absolute and unfettered discretion of the
\I) (I9>2) S,C.R. 284.
-
·•
-
-
S.C.R. · SUPREME COURT REPORTS
659
executive government with nothing in the law to /
z959
guide or to control its action to decide which cases or
-
1
f
h
ld b
. d
d
th A
Th
Kangsari Haldar
c asses o cases s ou
e tne un er
e
ct.
ere
d A
th
were, however, two dissents. Patanjali Sastri, C.J.,
an
v~o er
held thats. 5(1) was wholly valid, where, Das, J., as he
The State of
then was, agreed with the conclusion of the High Court
West Bengal
that s. 5(1) was bad only in so far as it empowered
. --
the State Government to direct cases to be tried by a Ga1endragadkar J.
special court ; it may be added that though Bose, J.,
agreed with the conclusion of the majority, he was
not satisfied that the tests laid down in deciding the
validity of the classification could afford infalliable
guide because he thought that the problem posed ii;i
such cases is not solved by substituting one generalisation for another. It would thus be seen that the
majority decision in that case was based on two
principal considerations that, having regard to the
bald statement made in the preamble about the. need
of speedier trials, it was difficult to sustain the classification marle by .s. 5(1), and that the discretion left to
the executive was unfettered and for its exercise no
guidance was given by the statute. It is difficult to
accept the suggestion of Mr. Acharya that the impugned provisions in the Act with which we are concerned
are comparable to s. 5(1) in that case.
The next decision to which reference must be made
is Kathi Haning Rawat v. The State of Saurashtra (1 ).
The majority decision in that case upheld the validity
of ss. 9, 10 and 11 of the Saurashtra State Public
Safety (Third Amendment) Ordinance, 1949 (66 of
1949) and the notification issued under it. Patanjali
Sastri, C.J., and three other learned judges of this
Court took the view that the preamble to the Act gave
a clear indication about the policy underlying the Act
and the object which it intended to achieve, that the
classification on which the impugned provisions were
based was a · rational classification, and that the
differentia on which the classification was made had a
rational nexus with the object and policy of the Act.
Mahajan, Qhandrasekhara Ayyar and Bose, JJ., however, dissented. According to them the notification
Ct) [195z] S.C.R. 435·
•
660
SUPREME COUR1' REPORTS [1960(2)]
z959
and the impugned provisions had violated Art. 14.
K
-.
H ld
It is significant that in upholding the validity of the
•;,:;".;;,0t;., "' impugned provisions and the notifications the tests
v.
applied were the same as laid down in Anwar Ali
The State of
Sarkar' s case (1 ).
If est Bengal
The third decision pronounced by this Court in the
G . d-dk
same year is Lachmandas Kewalram Ahuja & Anr.
01"' raga "' 1· v. The State of Bomqay ('). Section 12 of the Bombay
Public Safety Measures Act, 1947, was struck down
by the majority decision in that case as it contravened
Art. 14 and was void under Art. 13 on the principles
laid down in the two earlier decisions to which we
have just referred. Patanjali Sastri, C. J., struck a
note of dissent. He adhered to ·the view which he
had expressed in Anwar Ali Sarkar's case (1) and held
that the impugned provision was valid. The decision
in the case of Ahuja (2) proceeded on the basis that
the discrimination which may have been permissible
before January 26, 1950, could not be sustained after
the said date because it violated Art. 14 of the Constitution. Having regard to the objects which the act
intended to achieve and the principles underlying it,
it was held that the said object and principles applied
equally to both categories of cases, those which were
reforred to the special judge and those which were not
so referred; and so the discrimination made between
the two categories of cases which could not be
rationally put under two different 'classes was violative
of Art. 14. Thus the application of the same tests
this time resulted in striking down the impugned
provision and the notification.
In 1953 a similar problem was posed before this
Court for its decision. This time it was s. 4(1) of the
West Bengal Criminal Law Amendment (Special
Courts) Act, 1949, which was challenged in Kedar
Nath Bajoria's case('). This Act had been passed to
provide for the more speedy and more effective
punishment of certain offences because the Legislature
thought that it was expedient to provide for the more
speedy trial and more effective punishment of certain
offences which were set out in the schedule annexed
(I) [1952] S.C.R. 284,
(2) (1952] s.c.R. 710.
(3) [1954J s.c.R. 30.
-
-
-
S.C.R.
SUPREME COURT REPORTS
661
.
to the Act.
Section 4(1) authorised the Provincial
I959
Government to allot cases for trial to a special judge K
-:-H ld
b
'fi
·
11
t
£
f
angsari
a at
y not1 cation as we
as rans er cases rom one
and Another
special judge to a~other or to \vithdraw any case
v.
from the jurisdiction of the special judge ·or make
The State of
such modifications in the description of a case as may
West Bengal
be considered necessary._ Pronouncing the majority G . d-dk 1
judgment in that case Patanjali Sastri, C. J., elaboraJen raga ar •
ately considered the earlier decisions of this Court
to which we have already referred, applied the tests
iaid down therein, and held that s. 4 of the Act was
valid and that the special court had jurisdiction to
try ai;i.d con vi.ct _the appellants. Bose, J., however,
did not agree an_d recorded his diss!'lpt with deepest
regret. In dealing with the merits of the controversy
raised before the Court Patanjali Sastri, C. J., referred
to the fact that according to the dissenting view "the
decision of the majority in the case of Kathi Raning
Rawat v. The State of Saurashtra (1) marked a retreat
from the position taken up by the majority in the -
earlier case of Anwar Ali Sarkar (2)". He, however,
added that the Saurashtra case (I) " would seem to
-lay down the principle that if the impugned legislation
indicates the policy which inspired it and the object
which it seeks to attain, tbe mere fact that tbe legislation does not itself make a complete and precise
classification of the persons or things to which it is to
be applied, but leaves the selective application of the
law to be made by the executive authority in accordance with the standard indicated or the underlying·
policy and object disclosed is not a sufficient ground
for condemning it -as arbitr_ary ~nd, therefore, ob~
noxious to Art. 14."
·
There is is one more decision to which reference
may be made. In Gopi Chand v. Delhi Administration (3) this Court has upheld the yalidity of s. 36(1)
of the East Punjab Public Safety Act 5 of 1949. The
provisions of this section authorised the State Govern·
ment to apply the prescribed summons procedure for
the trial of the specified offences in dangerously
(I) [1952] S.C.R. 435·
(2) [1952] s.c.R. 284.
(3) A.I.R. 1959 S.C. 609. -
662
SUPREME COURT REPORTS [1960 (2)]
r959
disturbed areas. The notification issued by the State
Government under authority conferred on it by the
Kangsari Haldar ·
d A
h JI
d
ffi
·
A
and Another
1mpug~e
ct was c a enge
as o endmg
rt. 14
v.
but this challenge was repelled and the statutory
The State of
provision and the notification were held to be valid.
West Bengal
The 'result of these decisions appears to be this.
G . . d-dk 1 In considering the validity of the impugned statute
. •Jen rag• ar · on the ground that it violates Art. 14 it would first
be necessary to ascertain the policy underlying the
statute and the object intended to be achieved by it.
In this process the preamble to the Act and its material provisions can and must be considered. Having
thus ascertained the policy and the object of the Act
the court should apply the dual test in examining its
validity : Is the classification rational and based on
intelligible differentia; and has the basis of differentiation any rational nexus with its avowed policy and
object? If both these tests are satisfied the statute
must be held to be valid; and in such a case
the consideration as to whether the same result
could not have been better achieved by adopting a
different classification would be foreign to the scope
of the judicial enquiry. If either of the two tests is
not satisfied the statute must be struck down as
violative of Art. 14. Applying this test it seems to
us that the impugned provisions contained in s. 2(b)
and the provisil to s. 4(1) cannot be said to contravene
Art. 14. As we have indicated earlier, if in issuing
the notification authorised by s.