ALRAM AHUJA AND ANOTHER fl. THE STATE OF BOMBAY. [PATANJALI SAsTRI C.J & Ors. v. The State of Bombay. reference of "cases" to the Special into force

Appeals under Art. 132 (1) of the Constitution of the 19th India from May, 1950, of the High Court of Judicature of Bom- bay (Dixit and Shah, JJ.) in Confirmation Case No. 4 of 1950 and Criminal Appeals Nos. 190 and 199 of 1950, arising out of judgment dated the 13th March, 1950, of the Court of the Special Judge at Ahmedabad in Special Cases Nos. 2 and 3 of 1949. N. C. Chatterjee and Ram Lal Anand (Hardyal Hardy and S. L. Chibber, with them) for the appellants. 1952 Lachmandas Kewalram Ahuja and Anl!ther v. The State of Bombay. Patanjali Sastri C. /. . . 712 SUPREME COURT REPORTS M. C. Setalvad, Attorney-General for India Joshi, with him) for the respondent. [1952] (G. N. A. A. Peerbhoy and J. B. Dadachanji for Intervener.

#1952. May 20. The judgment of Mehr Chand Mahajan, Mukherjea, Das Chandrasekhara Aiyar, JJ. was delivered by Das J. Patanjali Sastri C.J. delivered a separate dissenting judgment. PATANJALI SASTRI C.J.-I agree with the reasoning and conclusion of my learned brother Das advantage of reading. I am unable I have had J. whose judgment regret ..issued under 1947, The appellants were convicted and sentenced imprisonment by terms of death and varying Special Judge, Ahmedabad, on charges of murder and other offences under the Indian Penal Code,. the Arms Act and the Bombay Police Act. The Special Judge was appointed by a notification (hereinafter Bombay Security Measures Act, referred to as the impugned Act) and on August 6, 1949, the State Government, in exercise of the powers ' conferred by section 12 of the impugned Act, directed the Special Judge to try the case of the appellants who were implicated in what was known as the Central Bank Robbery Case. Charges were framed on January 13, 1950, without any preliminary enquiry and com- mittal by a Magistrate which had been dispensed with by the impugned Act, and seventeen witnesses for the January 26, 1950, prosecution were examined before when the Constitution came into force. The proceed- the examination of sixty ings continued, and after witnesses in all, ended in the conviction of the appel- lants on March 13, 1950. Separate appeals were preferred by the present appellants the High Court which, however, con- firmed the conviction and sentence in each case. An objection that the the im~ug; ied Act was void under article 13 ( 1) of the Const1tut10n; read with article 14, was overruled on the ground that illegal as trial was • S.C.R. SUPREME COURT REPORTS 713 retrospective operation and those provisions had no did not affect proceedings already started "in the Court of the Special Judge. The learned Judges followed the decision of a Special Bench of their own Court in In re Keshav Madhav Menon(1), which has since been affirmed by this Court in (1951] S.C.R. 228. It is urged on behalf of the appellants that the decision relied on by the High Court is distinguishable and that the present case is governed by the decision of this Court in The State of West Bengal v. Anwar Ali Sarkar(2) to the effect that section 5 of the Bengal Act (which is in identical terms with section 12 of the impugned Act) is discriminatory and void in so far, at any rate, as it empowers the State Government to direct "cases" to be tried by a Special Court under a special procedure. Acoorldingly, 1t was claimed Special Judge had no jurisdidion to try the appellants applying impugned Act. special procedure prescribed by 1952 Lachmandas Ki:walram Ahuja tmd A notlli:r v. T ht: State of Bombay. Patanjali Sastri C. f. the case, the Special Granting, however, that ·section 12 of the impugned Act must, in view of the decisio.n in Anwar Ali Sarkar's case( 2 ), be held to be disi; riminatory and void in so far as it empowers the State Government to refer indi- trial, vidual cases to a Special Judge for it does not that the trial of the appellants, seem to me to follow Judge which had validly started before who had been duly empowered to reason of the Constitution subsequently vitiated by that the West coming into force. It is to be noted Bengal case( 2 ) was argued on the basis that article 14 of the Constitution was applicable to the proceedings their inception, although the notification direct- ing the trial of some of the persons accused case was issued on the day before the commencement is different. The appellant's case was sent to the Special Judge for trial by notiiication dated 6th August, 1949, and the Judge took cognisance of it, framed the charges and proceeded with to a considerable extent before the commencement of the Constitution on 26th the Constitution. The position here (1) [1950] 52 Born. L.R. 540. ( 2 ) {1952] S.C.R. 284. 3-8 S.C.India/71 ' ... 1952 Lachmandas Kewalram Ahuia and Another v. The State of Bombay. Pataniali Sas1ri C. J, . 714 SUPREME COURT REPORTS [1952] January, 1950. There could be no question, therefore, of the appellants' fundamental right under article 14 being infringed up to that point, as it has been held by this court in Keshavan Madhava Menon's case(') the provisions of the Constitution relating to funda- mental rights have no retrospective operation and do not affect a criminal prosecution commenced before the Constitution came into force. the same On and after 26th January, 1950, the appellants, no doubt, had the right to the equal protection of law; but, as has been repeatedly pointed out, that right only meant that the State, including the executive and the legislature, should apply law, substan- tive and procedural, to all persons alike in the same situation without discrimination. It is said that after the commencement of the Constitution persons who commit the same offences with which the appellants stood charged would, according to Anwar Ali Sark_ar's case(") not be liable to be tried by the Special Judge under the special procedure and, if so, the trial of the appellants, too, could not be continued by the Special Judge under ~uch procedure after 26th January, 1950, because such of the departures from the normal pro- cedure of trial under the Criminal Procedure Code as were applied to the appellants during· the rest of their trial; being disadvantageous to them in some respects, involved discrimination against them. It is, therefore, daimed that the continued application of such discri- minatory procedure after the Constitution came trial and the resulting conviction In the first place, as illegal. already pointed out, equal protection of postulates the same circumstances law should be applied it be said that the appellants, whose the Special and was Judge pending at the commencement of the Constitution, were in the same situation with persons who commit- ted the same offences after the Constitution came into situation I am unable to agree. trial by commenced claiming them. - Can had been rendered lawfully persons {') [1951] S.C.R. 228. ( 2 ) [1952] S.C.R. 284. 1952 Lachmandu Kewalram Ahuja and Another. v. The Stat11 of Bombay. Patanjali Sastri C. /. S.C.R. SUPREME COURT REPORTS 715 are different force ? It seems to me that the situation and circum- stances two cases and no compla'int of discriminatory treatment by reason only of the trial having been continued under the special procedure can be sustained, even assuming that ordinary procedure under the Criminal Procedure Code became applicable to the appellants on and after 26th January, 1950. law for tried under Such assumption, however, seems to be open to ques- tion. Section 1, sub-section (2), of the Criminal Proce- dure Code enacts that "Nothing herein contained shall affect ........ any special jurisdiction or power confer- red or any special form of procedure prescribed by any time being in force ...... " The jurisdiction conferred on the Special Judge impugned Act, which, as pointed out already, was perfectly valid and fully operative down to the 26th thus remained unaffected and applica- January, 1950, tion to the appellants of the ordinary procedure pres- cribed by the Code was excluded. It cannot, there- fore, be said that on the 26th January, 1950, the appel- lants were in a position to claim that they were entitled to be those who committed the same offences after that date or who, having committed them before such date, had not been directed to be tried by the Special Judge. It was said that section 1 (2) of the Criminal Procedure Code pre-supposes a valid law conferring a special juris- diction or prescribing a special form of procedure and, inasmuch as such parts of the special procedure as could still be applied to trials continued after the com- mencement of the Constitution are void under article 13 (1) read with article 14, section 1 (2) of the Code could not stand in the way of the appellants being tried under to me the ordinary procedure. This argument seems to beg the question. It assumes that the special proce- dure is discriminatory and void to the extent to which it could have been applied to the trial of the appel- the assumption lants after 26th January, 1950. But would not be valid unless the appellants could be tried the ordinary procedure h7. 1952 Lachmandas Kewalram Ahuia and Another v. The State of Bombay. Patanjali .Sastri C. /. 716 SUPREME COURT REPORTS [1952] under the normal procedure after 26th January, 1950, in which case alone they would say "Why not try us the Code; why discriminate ?" But, having lUlder regard to section 1(2) of the Code, the normal procedure would become applicable only if the special procedure is excluded as being discriminatory and void. The argument thus proceeds in a circle. to what remained of the appellants' contention, Again, it is diflicult to see on what principle the jurisdiction of the Special Judge, validly created and exercised over the appellants' case; could cease continue on and after 26th January, 1950. According the special procedure prescribed by impugned Act became discrimina- tory and void after 26th January, 1950, and, therefore, trial. But, inapplicable this circumstance affect the competence of the Special Judge to try their case of which he had validly taken cognisance? In Keshoram Poddar v. Nundo Lal Mullick(') the Judicial Committee of the Privy Coun- cil held that the cessation of the jurisdiction of a Rent Control Tribunal after 31st March, 1924, over proper- ties beyond a certain rental value did not affect its power to deal with a case after such cessation if the case was within its jurisdictioo when it was filed and related to a period prior to such cessation. Their Lord- is when ships observed : ''The application of the Act the ·parties begin to move under it This was done the present case before March 1924. The rest is merely the working out of the application". The position here seems to me to be closely analogous. The Special Judge was competent when the trial commenced before 26th January, 1950, and the impugned Act was validly applied to the case. The rest was merely working out the application of the impugned Act. I find it difficult to see why the competency of the Special Judge to try the case should cease after 26th January, 1950, any more than that of the Rent Contrd!. Tribunal to deal with a pending matter after 31st March, 1924, when its jurisdiction was restricted. · the appellants' (') [1927] 54 I.A. 152. "· • ~. , 1952 Lachmand11s Kewalram Ahuja and Another v. The State of Bombay. Patanjali Sastri C. /. S.C.R. If, then, to switch jurisdiction of the Special Judge that no case shall be the ordinary procedure. Again, that "NotwithstancJjng anything contained the advent of the Constitution, the Judge SUPREME COURT REPORTS 717 continue the trial of the appellants remained unaffect- it would be ed by the pending impracticable trials to a different procedure from 26th January, 1950, so as to give effect to the equal protection claims of under-trial prisoners. The impugned Act, for instance, enacts the Code the trial of offences before a Special Judge shall not be by jury or with the aid of assessors" (s. 20). The trials having been held so far without a jury or assessors as the case may be, it would obvious- ly be impossible in such cases to continue them after 26th January, 1950, with a jury or with the aid of assessors, where such trials are required to be so con- ducted under impugned Act provides trans- ferred from any Special Judge, a necessary consequence of the exclusive jurisdiction of the Special Judge and If the special mode of proceeding prescribed for him. a right of transfer under section 526 of the Code were to be recognised as accruing after 26th January, 1950, persons undergoing trial before the Special Judge, scheme of trial by Special Courts may well break down. The alternative courses open to the Court would, therefore, seem to he either to hold that article 13 (1), read with article 14, does not affett pending trials even in respect of procedural matters as it has been held not to affect such trials in respect of substantive rights and liabilities accrued before the date of the Constitution in Keshavan Madhava Menon's case(1), or to go back Constitution opinion that the principle of the above-said decision must rule the present case. That principle has been stated thus: "Article 13 (1) cannot be read as oblitera- ting the entire operation of the inconsist~nt laws, or to wipe them out altogether from the statute-book, for, to do so will be them retrospective effect they do not possess. Such laws which, we have said, for enforcing a/.l . (1) (1951 J S.C.R. 228. those provisions of I am clearly for all past transactions and that decision and give retrospective effect. to give 1952 Lachmamlas Kewal ram Ahuia uzd Another v. The State of Bombay. Patanjali Sastri C. /. 718 SUPREME COURT REPORTS [1952] (Italics mine). the date of the rights and liabilities accrued before Constitution". last few words are apt to cover the present case, though, as a party. to that decision, I am sensible that we did not have in· mind a case precisely like the one now before us. But, it is well to remember that over-fine distinc- tions sometimes lead to unsuspected traps. Indeed, to be recorded to what remained of the appellants' In the foregoing discussion I have assumed that such the normal procedure as were still departures from applicable after the 26th January, 1950, were so materially pre- judicial to them as to amount to a denial of the equal protection of the laws within the meaning of article 14 of the Constitution. I am, however, by no means satisfied that that is the position. One of these devia- tions relates to the recording of evidence. The Special Judge is empowered to record only a memorandum of the substance of the evidence of each witness exa- mined, whereas the Criminal Procedure Code requires the evidence in full. Another relates to the summoning of witnesses for the defence, the Special Judge being given a discretion to refuse to sum- mon a witness "if satisfied after examination of accused that the evidence of such witness wijl not be material" (s. 13), while under section ?57 (1) of the Code the Magistrate has the discretion to refuse to summon witnesses if he considers that the application issue of process for compelling the attendance of any witness is made "for the purpose of vexation or delay or for defeating the ends of justice". And lastly, the impugned Act provides that no court shall have juris- diction to transfer any case from any Special Judge (sec- tion 18 (3) ), whereas transfers under section 526 of the Code are allowed on certain specified grounds. The more important departures from Code such as dispensation of preliminary enquiry and jury and assessors committal and had already been applied, and validly applied, to the trial of the appellants before the Constitution into force, and there can be no question of such depar- I am unable to regard the tures vitiating the trial. the procedure under the elimination of • • 1952 Lachmandas Kewalram Ahuja 11nd Another v. The State of Bombay. Patanjali Sastri C, /. S.C.R. SUPREME COURT REPORTS 719 record the omission to procedural ·variations in the recording of evidence and the summoning of witnesses as so serious as to amount to a denial of the equal protection of the laws within the meaning of article 14. Even if the appellants were to be tried under the normal procedure · of the Code after 26th January, 1950, evidence in full and the refusal to summon a witness in the circumstances mentioned in section 13 may well be regarded as mere irregularities curable under section 537 of the Criminal Procedure Code. As regards transfer, it does not, as already pointed out, fit in with the scheme of trial before a Special Judge, and, unless any system of trials by Special Courts is to be condemned as violative of article 14--the decision of this Court in Kathi Raning Rawat v. The State of Saurashtra(1) shows that it can be validly instituted in appropriate transfer cannot be circumstances-a the inhibition of article 14. regarded as falling with'in I have emphasised elsewhere, and I do so again, that in applying the dangerously wide and vague language life, of the equality clause to the concrete facts of a doctrinaire approach should be avoided. prohibition of In all the circumstances of this case, I do not feel impelled · to set aside the trial and conviction of the appellants and I accordingly dismiss the appeals. j, DAs J.-These two appeals are from the judgment of a Division Bench of the Bombay High Court (Dixit and Shah JJ.) dated May 19, 1950, dismissing appeals preferred by the appellants against the order made by Shri M. S. Patil on March 13, 1950, as the Special Judge appointed under the Bombay Public Security Measures Act, 1947, whereby he convicted and sentenced terms of imprisonment under the different charges. to death and to different The prosecution case is shortly as follows : On the the hours of morning of May 26, 1949, between 10-30 a.m. and 11 a.m. in the city of Ahmedabad the two appellants with another companion, after injur- ing, by gunshot, the driver and a peon of the Central (1) [1952] S.C.R. 435. r" 19'2 Lachmandas Kewalram Ahuja and Another v. The State of Bombay. Dai /. 720 SUPREME COURT REPORTS [1952] the motor van at a distance of Bank of India Ltd., forcibly removed moto~ van No. BY 4388 belonging to the bank in which 11 large sum of money was being carried from its head office at Gandhi Road to its branch office at Maskati. After abandoning three- fourths of a mile, the three gunmen forcibly took pos- session of the bicycles of some persons who were riding the same and continued In course of their flight, several people. Eventually, however, the two appellants were arrested by the Police but their companion made good his escape. . The driver and the peon of the bank who had been injured succumbed to their injuries, one dying on the spot and the other in the hospital on the next day. their escape. injured they fired and After investigation, the Ahmedabad Police, on July 19, 1949, submitted to the City Magistrate, Ahmeda- bad, two charge sheets Nos. 183 and 183-A against the two appellants and the then unknown absconder in respect of several offences cmnmi_tted in course of the transaction that took place on May 26, 1949. The charge sheet No. 183 was in respect of offences under sections 394, 397, 302, 307 read with section 34 of the Indian Penal Code, section 19 ( e) of the Arms Act, and sect; on 68 (1) of the Bombay District Police Act. The charge sheet No. 183-A was in respect of offences punishable under sections 307, _392 sec- read with tion 34 of the Indian Penal Code, section 19( e) of the Arms Act and section 68(1) of the Bombay District Police Act. In each of these charge sheets there was appended a note the District Superintendent of Police, Ahrnedabad City, had requested move the Government of Bombay for the constitution of a Special Court to hear the cases and that the said the Special charge sheets might be Court as and when one was so constituted. In view of this note the City Magistrate did not hold enquiry but only remanded the appellants. the District Magistrate, Ahmedabad, the effect transferred the Govern- By a Notification dated August 6, 1949, ment of Bombay exercising its powers under section 10 of the Bombay Public Security Measures Act, 1947, • 1952 ' ' Lzchmandas Kewalram Ahuia and Another v. The State of Bombay. DllS /. . .J .. S.C.R. SUPREME COURT REPORTS 721 Judge the Special the same date, the Act directed constituted a Special Court of criniinal jurisdiction for the Ahmedabad District and under section 11 of that Act appointed Shri M. S. Patil, District and Sessions Judge, Ahmedabad, as a Special Judge preside over the Special Court. By another Notifica- tion made on the Government of Bombay in exercise of powers conferred by section 12 two particular cases, namely, the Postal Van dacoity case in which there were 9 accused and the Central Bank robbery with murder case :appellants before us were the accused under the two In view of the above Notification the charge sheets. ·City Magistrate, Ahmedabad, cases against the appellants to the Court of the Special Judge and they came to be numbered as cases Nos. 2 and 3 respectively of ~949. On December 31, 1949, the Government of Bombay directed that the trial of · the appellants should be held by the Special Judge in the Ahmedabad Central Prison. There was no order of committal by any Committing Magistrate nor was there any preliminary enquiry by the Special Judge . transferred in wliich 25, On January 13, 1950, the Special Judge consolidated the two cases against the appellants with a view to holding a joint trial. On the same day he framed five several charges, namely, four under different sections of the India Penal Code and one under section 19 ( e) of the Indian Arms Act and section 68 (1) of the Bombay District Police Act. On January 19, 1950, the first prosecution witness was examined and up to seventeen · prosecution witnesses January into opera- were examined. The Constitution came tion on January 26, 1950. Tlie hearing proceeded thereafter and the deposition of the last witness was recorded on February 9, 1950. ·Altogether sixty-two two appellants were witnesses were examined. The examined under section 342 of the Code of Criminal Procedure on February 10, 1950. One handwriting expert was examined as a Court witness on February 13, 1950, and argume~ts for the prosecution commenced the conclusion of the on the following day. After 1950, 1952 Lflchmandas Kewal ram Ahuia 11nd Another v. The State of Bombay. Das/. 722 SUPREME COURT REPORTS [1952} the defence on February 23, 1950, the arguments for Special Judge delivered his judgment on March 13, 1950. According to his findings both the appellants had committed eleven different offences punishable under several penal provisions of law as specified by him and he convicted both the appellants of the said eleven offences and sentenced both of them to death under section 302/34, Indian transportation for Penal Code, and imprisonment under various other sections of the Indian Penal Code, Arms Act and Bombay District Police Act. The capital sentences were, of course, subject to the confir- mation by the High Court. life under section 307 /34, to various Indian Penal Code, and terms of along with appeals confirmation of Both the appellants appealed to the Bombay High reference Court. The sentences of death were heard together by Dixit and Shah JJ. who by judgments dated May 19, 1950, dismissed the sentences of death. The appeals and confirmed appellants applied the High Court for certificates under articles 132 (1) and 134 (1) (c) of the Constitu- tion to enable them to appeal to this Court. The High Court (Bhagwati and Dixit JJ.), however, granted appellants a certificate only under article 132 (1) but declined to issue any under article 134 (1) (c). The the present appeals pur- appellants suant to the certificate under article 132 (1). A petition was filed before us under article 132 (3) for leave to urge, as an additional ground, trial was vitiated by reason of misjoinder of charges. No such ground was actually advanced before the High Court and as to permit the appellants to raise a new point at this stage it dis- that petition. Accordingly appeals allowed to attacking must be limited High Court on the ground that a substantial question. of law as to the interpretation of the Constitution has been wrongly decided. this Court did not think fit judgment of thereupon The only substantial question of law as to the inter- pretation of the Constitution urged before us is that \ • S.C.R. SUPREME COURT REPORTS 723 to direct the State government the Bombay Public Safety Measures Act, 1947, or, at any rate, that part of section 12 of that Act which specific authorises "cases" to be tried by a Special Judge appointed under that Act, offends against the equal protection of law guaranteed by article 14 of the Constitution and is as such void under article 13 on the principle laid down J by this Court in the cases of The State of West Bengal v. Anwar Ali Sarkar(1) and Kathi Raning Rawat v. The State of Saurashtra( 2 In order to appreciate the po~nt in issue, it is necessary to consider in some detail the provisions of the impugned Act. ). ~ 1952 Lachmandas Kewalram Ahuja and Another v. · The State of Bombay. Das/. relating The Act came into force on March 23, 1947. It was then intituled as "An Act to consolidate and amend to public safety, maintenance of public -Jrder and the preservation of peace and tran- quillity in the Province of Bombay". The preamble recited the expediency of consolidating and amending the law relating to those several matters. By section 2 (3) the Act was to remain in force for a period of three years. The Act was amended by Bombay Act I of 1950 and amongst other things, the words "security of the State, maintenance of public order and main- tenance of supplies and services essential to the com- munity in the State of Bombay" were substituted for "public safety, maintenance of public the words order and the preservation of peace and tranquillity in the Province of Bombay" occurring in the long title and preamble of the Act. The word "six" was substituted for the word "three" in section 2 (3). The remaining sections of the Act are grouped under seve- ral heads. Thus sections 3 (Al) to 5B are grouped under the heading "Restrictions of movements etc.". A contravention of an order made under some of is made an offence punishable mentioned therein. The subject of "collective fines" "Con- is dealt with under that heading in section 6. trol of camps etc. and uniforms" are covered by sections 7 and 8, each of which makes a contravention sections (1) [1952] S.C.R. 284. (2) [1952] S.C.R. 435. \ \ \ 1952 Lachmandas Kewalram Ahuja and Another v. The State of Bombay. Das f. 724 SUPREME COURT REPORTS [1952] Section 9 A is set down under of any order made under it an offence. Section 9 pres- cribes whipping as a punishment for certain offences in addition to any other punish- under certain Acts ment to which the offender may be liable under those the heading Acts. "Control of Publications etc." and section 9B under the heading "Control of Commodities etc.". Each of those any order made sections makes a contravention of thereunder an offence punishable as provi.ded therein. Sections 10 to 20 which are collected under the head- ing "Special Courts" are material for the purposes of the point in issue before us and will have to be care- fully noted. The rest of the sections are set out under the headings "Miscellaneous" and "Amendments Acts". section the Saurashtra Turning to the group of sections under the heading "Special Courts", it will be noticed that section 10, like section 3 of the West Bengal (Special Courts) Act, 1950, State 9 of authorises Public Safety Measures Ordinance, 1948, in the Official Gazette the government by notification to constitute Special Courts of criminal jurisdiction such area as may be specified in the notification. Section 11 which corresponds to section 4 of the West Bengal Act and section 10 of the Saurashtra Ordinance empowers to appoint as a Special to preside over a Special Coun any person Judge possessing qualifications mentioned therein. Section 12 is expressed in precisely the same terms in which section 5 ( 1) of the West Bengal Act and section 11 of expressed, namely : the Saurashtra Ordinance the government requisite "A Sp.ecial Judge shall try such offences or class of offences or such cases or class of cases as the Pro- vincial Government may, by general or special order in writing direct." It will be noticed that the offences mentioned in the above section are not limited to offences created by . this Act only but also· cover offences under any other law, e.g., thus: the Indian Penal Code, Section 13 I S.C.R. SUPREME COURT REPORTS 725 "13. (1) A Special Judge may take cognizance of offences without the accused being committed to his Court for trial. (2) A Special Judge shall ordinarily record a memorandum only of the substance of the evidence of to summon any each witness examined, may witness if satisfied after examination of the accused that the evidence of such witness will not be material and shall not be bound to adjourn any trial for any is," in his opinion, purpose unless such adjournment necessary in the interests of justice. refuse ( 3) In matters not coming within the scope of sub.sections (1) and (2), the provisions of the Code, in so far as they are not inconsistent with the provi- s'ions of sections. 10 to 20, shall apply to the proceed- ings of a Special Judge; and for the purposes of the the Special Judge shall said provisions, the Court of be deemed to be a Court of Session." Under section 14 of the Special Judge may in his dis- cretion direct the evidence of a person who is not in a position to attend the Court to be recorded on com- ~ mission. Enhanced punishments are provided for cer- tain offences by section 15 as follows : 1952 Lachmandas Kewalram Ahuia and Another v. The St11te of Bombay. Das f. • anything contained "Notwithstanding Indian Penal Code, whoever commits an offence of attempt to murder may, in lieu of any punishment to which he is liable under the said Indian Penal Code, be punishable with death; and whoever commits an offence of voluntarily causing hurt by stabbing may, in lieu of any punishment to which he is liable under > the said Indian Penal Code, be punishable with death or transportation for life." Section 16 authorises Judge the Special authorised by rule of procedure any sentence prescribes a special of fines. Section 18 gives a person to pass section 17 recovery to a a Special the date of sentence and also empowers the High Court tD call for the records of the proceedings of any convicted a right of appeal trial held by on a period fifteen '~ Judge within 1952 Lachmandas Kewalram Ahuia .and Another v. The State of Bombay. Das/. • 726 SUPREME COURT REPORTS [1952] ,_ case tried by a Special Judge and in respect of such case exercise any of the powers conferred on a Court of appeal by sections 423, 426 and 428 of the Code. Sub-section (3) of section 18 runs thus : "No Court shall have jurisdiction to transfer any case from any Special Judge or to make any order under section 491 af the Code in respect of any person triable by a Special Judge or, save as herein otherwise provided, have jurisdiction of any kind in respect of proceedings of any Special Judge." Thus the right to apply for transfer of the case and the right to apply for revision are denied to an accused who is tried by a Special Judge. Ordinary law is, by section 19 made applicable in so far as it is not incon- sistent with the provisions of sections 10 to 20. Section 20 provides as follows :- I ~. ...... "Notwithstanding anything Code, the trial of offences before a Special Judge shall not be by jury or with the aid of assessors." contained Thus, besides providing for enhanced punishment and whipping the Act eliminates the committal pro- ceedings [section 13 (1) ], permits the Special Judge to record only a memorandum of the evidence, confers on him a larger power to refuse to summon a defence wit- ness, than what is conferred on a Court by section 257 ( 1) of the Code of Criminal Procedure and also deprives the accused of his right to apply for a trans- fer or for revision. That these departures from the ordinary law cause prejudice to person subjected to the procedure prescribed by the Act cannot for a moment be denied. This Court has, by its decisions the State of West Bengal v. Anwar Ali Sarkar (supra) and in Kathi Raning Rawal v. The State of Saurashtra that article 14 con- recognised demns discrimination not only by a substantive Ia:w but also by a law of procedure and that the procedure prescribed by the corresponding provisioI)s in the West Bengal Special Courts Act and the Saurashtra Ordi- nance which introduced similar departures from ordinary law of procedure constituted a discrimination (supra), S.C.R. SUPREME COURT REPORTS 727 against persons tried by the Special Judge according to procedure prescribed by those pieces of legislation and finally that, in any event, section 5 (1) of the West Bengal Act and section 11 of the Saurashtra Ordinance, both of which corresponded to section 12 of the Bombay Public Security Measures Act, in so far as they authorised the government to direct specific and particular "cases" fuoge, In view of the depar- was unconstitutional and void. tures from Bombay Public Safety Measures Act, 1947, which are noted above it, cannot but be held, on a parity of rea- the Act, in so soning, far as it authorises the Government to direct parti- cular "cases" tried by a Special Judge, is also unconstitutional. the ordinary law brought about by that at any rate section 12 of to be tried by the Special to be 1952 Lachmandas Kewalram Ahuia and Anoth~ v. The State of Bombay. Das/. 13, 1950, in August, 1949, framed charges Learned Attorney-General appearing for the State of Bombay does not controvert the legal position as d'is- cussed above but he points out that the offences were committed in May, 1949, that the Special CoUrt was constituted and the Special Judge was appointed August, 1949, and these "cases" were directed to be tried by the Special Judge against the Special Judge actually January appellants on the depositions of seventeen witnesses had been taken before the Constitution came into force and when the Bombay Public Safety Measures Act, 1947, was valid 'in its entirety. He contends, on the autho- in Keshavan rity of Madhava Menon v. The State of Bombay(1), that the Constitution has no retroactive operation and that it does not affect the rights acquired or the liabilities incurred under laws which, before the adv~nt of the Constitution, were valid, and, quoting from the judg- ment of the majority of the Bench in that case, that "such enforcing all rights and liabilities accrued before the date of the Constitution", he urges that the legal pro- ceedings commenced before the Constitution came into laws exist for all 'past the decision of transactions and this Court ( 1) [ 1951 J S.C.R. 221. ' 1 ; ; ~v, 1952 Lachmandas Kewalram Ahuia and Another v. The State of Bombay. Das f. 728 SUPREME COURT REPORTS [1952} operation are in no way affected by it and may well be proceeded with. In September, 1949, he was alleged In Keshavan Madhava Menon's case, the appellant was the Secretary of People's Publishing House, Ltd., of Bombay. have published a pamphlet which, according Bombay Government authorities, was a "news sheet" within the meaning of section 2 ( 6) of the Indian Press (Emergency Powers) Act, 1931. On December 9, 1949, he was arrested and a prosecution was started against him in the Court of the Chief Presidency Magistrate at the pamphlet without Bombay for having published the authority required by section 15 (1) of the Act and thereby committed an offence punishable for having under section 18 of that Act. During the pendency of the proceedings the Constitution of India came into force on January 26, 1950. On March 3, 1950, petitioner filed a written statement submitting, the definition of "news sheet" as given in section 2 ( 6) of that Act, and sections 15 and 18 there- of were inconsistent with article 19 (1) (a) and, as such, void under article 13 of the Constitution. This was followed up by a petition -filed in the High Court on March 7, 1950, under article 228 of the Constitution. The Bombay High Court considered it unnecessary to deal with the question whether sections 15 and 18 were inconsistent with article 19 ( 1) (a) but held that, assuming that they were inconsistent, the proceedings commenced under section 18 before the commence- ment of the Constitution could nevertheless be pro- ceeded with. The High Court took the view that the word "void" was used in artide 13(1) in the sense of "repealed" and that consequently it attracted section 6 of the General Clauses Act which by article '367 was made applicable for the interpretation of the Constitu- tion. The High Court. having dismissed the applica- tion the appellant came up on appeal before this Court after having obtained a certificate granted by High Court under article 132 (1) of the Constitution. The majority of this Court held that the Constitution bad no retrospective effoct but was wholly prospective 1952 LllchmandM Kewalram Ahuja .,,, Anotlur v. Tlie Stale of Bomb•y. DM /. S.C.R. SUPREME COURT REPORTS 729 fundamental inconsistent with its entire operation on past (1), be permitted in its operation and as the existing laws, in so far as they were rights, were rendered void only to the extent of their incon- sistency, they were not void for all purposes but were void only to the extent they came into conflict with the fundamental rights. In other words, the majority of this Court held that while on and after the com- mencement of the Constitution no existing law could, to stand by reason of article 13 the way of the exercise of any of fundamental rights, that article could not be read as wiping out incensistent law altogether from the statute book and as obliterating transac- tions, for to do so would be to give it retrospective effect which it did not possess. Such law, it was held, existed for all past transactiom and for enforcement of rights and liabilities accrued before the date of the Constitution. To the same effect were the observations of Mahajan J. who delivered a separate but concurrent judgment, namely that with effect that a provision from a particular date an existing law would be void to the extent of the repugnancy had no retrospective operation and could not affect pending prosecurions or actions taken under such law, and there was in such a situation no necessity for introducing a saving clause and that it did not need the said of a legislative provi-- sioa of the nature contained in the Interpretation Act or the General Clauses Act. According to him, not the Constitution in its operation, bc.ing retrospective could not, therefore, in any way affect prosecutions started for punishing offences that were complete under the law in force at the time they were committed. It will be noticed that in that case the prosecution was · law of procedure. started according the ordinary The only question there was whether a criminal pro- ceeding instituted for a contravention of the provisions of the Indian Press (Emergency Powers) Act which amounted to a completed offence before the date of the Constitution could be continued after the Constitution in procedure was came into force where no change involved. The result of that decision is that although +-S s,c. India/71 .. ~ ,_, 1952 Lachmandas Kewalram Ahuja •nd Another v. The State of Bombay. Das/. 730 SUPREME COURT REPORTS [ 1952! the offence completed before It was in this sense that it was stated the acts which before the Constitution constituted an offence under that Act would not, if done after the date of the Constitution, amount to an offence, nevertheless the Constitution had no retrospective operation did not obliterate date of the Constitution and the offender could, there- fore, be proceeded against after the Constitution came into force. Keshavan Madhava Menon's case that the law existed the past transactions and for enforcing all rights acquired or liabilities incurred before the date of the Constitution. the offence If the law did not exist, created by it would ipso facto disappear and no ques- tion of punishing the non-existing offence could arise. The observations made thi: substantive incurred acquired or under the Act before the Constitution came into force. Under what procedure the rights and liabilities would be enforced did not come up for consideration in that case, as the procedure prescribed by the Code same, namely, of Criminal Procedure. the procedure adopted throughout was that case liabilities related rights · prescribes the heading "Special Courts" law of procedure regulates legal proceedings The inception up to its termination and generally usually connotes a continuous process. The Bombay Public Safety Measures Act, 1947, by sections 10 to 20 2 special procedure for the trial by the Special Judge of "such ofl:ences or class of offences or cases or class of cases as the government may by general or special in writing direct". The offences or cases so directed to be tried by the Special Judge need not be, the Act or relate to, the special offences created by itself offence Indian Penal Code, Arms It has been Act and impugned Act constitutes a departure from the ordin- ary law of procedure and is, in some important res- pects, the persons is discriminatory. The subjected the Bombay District Police Act. the. special procedure prescribed by but may to it and as such interest of detrimental law, e.g., relate to, 1952 Lachmantlu Kewalram Ahuia and Another v. The State of Bombay. Das /. S.C.R. SUPREME COURT REPORTS 731 it cannot, even at taking of cogni- discrimination does not end with the zance of the case by the Special Judge without case being committed to him but continues even subsequent stages of the proceedings in that the person subjected subsequent stages, have the benefit of having the evidence for or in extenso, may not get sum- against him recorded mons for all witnesses he wishes to examine in defence only on the ground the Special Judge does not consider that such evidence will be material and cannot exercise his right to apply to a superior Court for transfer of the case even though the Special Judge has exhibited gross bias against him or to apply for revision of any order made by the Special Judge. As the Act was valid in its entirety before the date of the proceeding before Constitution, Special Judge, which, upto that date, had been regu- lated by this special procedure cannot be questioned, however discriminatory it may have been, but if the discriminatory procedure the date the accused person may the Constitution, surely legitimately ask : "Why am I treated differently similar from other persons offences in respect of procedure? It is stated in Max- well's Interpretation of Statutes, 9th Edn., p. 232 :- today being accused of is continued after that part of "No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by, or for the Court in which he sues, and, if an Act of that mode of procedure, he has no Parliament alters other right than to proceed according altered mode." If in the absence of any special provision contrary, no person has a vested right in procedure it must follow as a corollary that nobody has a vested the absence of any liability in matters of procedure in If this special provision to the contrary. the posi- tion when the law of procedure is altered by statute, why £hould the Act becomes prescribing the position be different when procedure discriminatory - > l - ) 1952 Lttchmandas Kew air am Ahuja •nd Another v. The State of Bomlxzy. Das f. 732 SUPREME COURT REPORTS [1952I acquired rights and liabilities to the equal protec- ".oid by reason of its repugnancy subs- t10n clause of tbe Constitution. Although tantive accrued before tbe date of tbe Constitution remain enforceable, as held in Keslzava11 Madhava Menon's case, nobody can claim, after that date, that those rights or liabili- ties must be enforced under that particular procedure although it bas, since that date, come 'into conflict with tbe fundamental guaranteed by article 14. right of equal protection of date. to be similarly therefore, force and, It is said, in reply, that in this case there 1s, rn law, no discrimination which can be said to be within the m'ischief sought to be prevented by artide 14. TI1e appellants are persons whose "cases" had been proper- ly sent for trial to the Special Court before the Consti- tution came they cannot complain the procedure prescribed by the Act is continued to be applied to their "cases" although such procedure cannot be applied to "cases" which had not been referred to the Special Court up to that date, for the appellants cannot claim situated with persons whose "cases" had not been directed to be tried by the Special Court before the date of the Constitution or who committed similar offences after continued application of the procedure laid down in the impug· ned Act the appellants cannot, the "cases" of it is contended, amount to discrimination in the eye of the law and is, therefore, not within the inhibition of the equal protlection clause of the Constitutibn. Article 14 being thus out of the way, the procedure laid down in the impugned Act continues to be valid in law as regards tbe persons whose "cases" had been the Constitution subjected and so far as there has been no change in the procedure and, therefore, "cases" must continue to be regulated by that proce- dure. We are unable this argument · as It is now well established that while article sound. legislation it does not forbid reason- 14 forbids claS< In able classification for the purposes of those persons are concerned it before the advent of circumstances, legislation. to accept In 1952 L«chmandtU Kewalram Ahujll and A11ot!zer "'· The State of Bombay. Das/. S.C.R. SUPREME COURT REPORTS 733 In fulfilled, conditions must be like section 5 ( 1) of the capacity to enter the section satisfies both the basis of classification and the Act. To take an example : Under classifi- order, however, to pass the test of permissible cation, namely, (i) that the classification must be founded on an intelli- gible differentia which distingu'ishes persons or things that are grouped together from others who are left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between sec- -object of tion 11 of the Contract Act persons who have not attained majority cannot enter into a contract. The two categories are adults and minors. The basis of classification the age. That basis obviously has a into a contract. relation the requirements Therefore, the present case, <lf a permissible classification. the Bombay although the first part of section 12 of the West Bengal Act or Act, section 11 of the Saurashtra Ordinance, may indicate and imply a process of classification, the section, in so the government to direct parti- far as cular "cases" to be tried by the Special Court, does not purport to proceed upon the basis of any classifi- cati()n at all. Further, the fact of reference to alleged classification, namely the Special Court before effect, has no reasonable relation . to the objects sought to be achieved by the Act. The avowed objects of the Act recited the expediency of consolidating an<l amending law relating to the -security of the State, maintenance of public order and maintenance of supplies and services essential to If the considera- community in the State of Bombay. tion of the security of the State or the maintenance of public order requires the application of the special pro- cedure is no obvious reason why it should be applied to "cases" already referred and not to cases not yet referred at the date of the Constitution. The same consideration applies equally categories It is, therefore, clear that there is no nexus of cases. the preamble are the supposed basis of the Constitution came it authorises to both 1952 Lachmandas · Kcwalram Ahuja •nd Another v. The State of Bombay. Das/. 734 SUPREME COURT REPORTS [19521 suited "cases" appellants' instance of to obtain process for exist which may make this special procedure. In which connects the basis on which the supposed classi- fication is founded with the objects of the Act, for the object of the Act is wide enough to cover both cate- gories of "cases". 1:herefore, it is not a permissible fanciful is an cl~ssification. Indeed, classification which has no rational basis at all. We the special procedure sec no particular reason why should be applied more than it should be applied to "cases" not refer- red to the Special Court up to the 26th Januory, 1950. No special or peculiar circumstances have been shown the appellants' "cases" specially absence of a rational basis of classification, ex- plained above, there can be no justification, after the advent of the appel- the Constitution, for depriving lants of the right to move the Court for transfer or for revision or the attendance of defence witnesses or of having witnesses recorded as available to other persons accused of similar offences and prosecuted ·according the ordinary procedure the Code of Criminal Procedure. Lt is, laid down in the discrimination therefore, clear into force and the Constitution came continuetl after such contmuation of the discri- minatory procedure to their cases i1ftcr the date of the fundamental Constitution constituted a breach of their right guaranteed by article 14 and being inconsistent the special pro- with the provisions of that article cedure became void under article 13 and as there is in matters of procedure no vested right or liability to be tried according to the the appellants are entitled ordinary procedure after the Constituion. Their complaint that had happened before 26th January, 1950, but is for uncon- stitutional discrimination that date. Their grievance, their cause of action as it were, therefore, must be and examined in the light of their constitu- scrutinised there can be no doubt or tional rights. So viewed, the application of 1s post-constitution the evidence of in an ordinary shown against the date of trial which something this case is not and.. ' S.C.R. SUPREME COURT REPORTS 735 as much as in a substantive they have been discriminated question against after the date of the Constitution in the matter of pro- cedure. It has already been held in the West Bengal and the Saurashtra cases that discrimination can lie in law. procedure Therefore, the continuation of the trial after that date according to the discriminatory procedure resulting in conviction and sentence cannot be supported. Indeed in a sense the Special Judge's jurisdiction came to an end, for he was enjoined to proceed only accord- ing to the special procedure and that procedure having become void as stated above, he could. not proceed at all as a Judge of a Special Court constituted under the impugned Act. .. 1952 Lachmandas Kewalram Ahuia and Another v. The State of Bombay. Das/ . apply to landlord or the President of the Privy Council The learned Attorney-General relied on the deci- in Keshoram Poddar v. sion of Nundo Lal Mallick(1)°. The Calclltta Rent Act, 1920, enabled the tenant of premises in Calcutta to obtain from the Controller of Rents a certification of the standard reµt of the premises and also gave a the Calcutta Improvement Tribunal for revision of the order of the Controller. The Act was originally to be in force for a pericxl of three years which was subsequently extend- ed until the end of March, 1924, and finally tl1e figure 1927 was substituted for 1924 with a proviso "that after 31st March, 1924, tl1is Act shall cease to apply to any premises the rent of which exceeded Rs. 250 a month". The appellant was let into possession on 1st June, 1920, but the rent payable was not then fixed .. He remained in possession until March, 1923, and the question raised by the case was what rent ought to be that period of occupation. Disputes having paid for arisen, the appellant applied to the Controller and on 23rd October, 1922, the rent at Rs. 4,500 per month. On 25th November, 1922, the the Improve- appellant appealed ment Tribunal revision application could not be taken up by the President until long after 31st March, 1924, and when it was eventually to the President of revise the Controller fixed that decision. The (1) I.LR. 54 Cal. 508; 54 I.A. 152. '· - . . " ' ·~·-..-~=--------. 736 SUPREME COURT- REPORTS (1952). _19sz Ahuja posted before him on 3rd August, 1924, he held that he Lachmarnld. had no jurisdktiori to determine the_- 1!1atter, ·for the Ktwalram Act, ha_d · ceased to_ apply to _the_ premises. _. It_ will be observed· that· the. application to· the President was and'Anoth~ made' long· before· 31st· l\Iarch~ 1924, .and ·that the -'j:ieriod for·\vhich the rent had to be: determined was z::::;:.~j between June;, 1920; and _l\farch;' 192J.· ·The: Privy the :.Act - · Da•J. Was \vhen the parties began to move tinder it and. that _ the 'application _ of Council ·held v. ·that wa.S done before March; 1924; and that the' Presi dent accordingly had judsdictiim fo decide it. 'That ;decision apiiears to_· u~ to have rio applicatfon-to the . facts of the: present. case, for the problem before us does not relate to a period anterior to the Constitution · when. the Act'. was· good and the Special Judge had - authority to apply the special procedure, -_·-The point for: decision now is whether the .continuation of tlie procedure prescribed by the Act after-the Constitu tion· came _into ·force operates to·the prejudfre· c;if the appellants •and, as' such; offends against their newly acquired fundamental right of equal protection of law 'guaranteed by article_ 14. ~-The· Constitution has no retrospective operation to invalidate that ~part of the proceedings that has already-. been gone -through but the Constitution does not permit the special procedure to stand· in- the way of the exercise or enjoyment of pos_t-constitutional rights and must, therefore.-'strike do'wn the discriminatory procedure if it is sought to be adopted after the_ Constitution came into operation; To' that' situation, the! decision of the Privy Council '.referred to above can have no application.--.·!.<.'.·'. .. ·· .. . , '.For.' reasons' stated. above; .the· conviction 'of the appellants on trial held bf the Specfal Judge after the 'date of' the Constitution according to the special pro. ;ce_dure prescribed by the impugned Act -and __ the sen- tences passed on them cannot be supported and these ·appeals must, therefore, be -allowed -and the convic ' tions and" sentences' must be 'set aside. The appel ' fants. are' entitled; after -tlie Constitution! not to be . discriminated against in matters of procedure' and are. - ~ntitled to be tried according to law. \Ve, therefore, - S.C.R. SUPREME COURT REPORTS 737 they be direct to have been committed by undertrial prisoners. the offences alleged to law the meantime they be retained in custody as them according Appeals allowed. Agent for the appellants : Naunit Lal. Agent for the respondent: P. A. Mehta. Agent for the intervener : Rajindcr Narain . GURBACHAN SINGH ti. THE STATE OF BOMBAY AND ANOTHER [PATANJALI SASTRI C.J., MEHER CHAND MAHAJAN, MuKHERJEA, DAs and CHANDRASEKHARA A1YAR JI.] City of Bombay Police Act, 1902, s. 27 (!)-Constitution of India, Arts. 19 (1) (d), 19 (5)-Provisions relating to externment whether infringe fundamental right to freedom of movement-Valid ity-Externment 01·der fixing place outside State of Bombay residence-Legality. 1952 M11y 7. Section 27 (I) of the City of Bombay Police Act: 1902, docs not contravene the provisions of Art. 19 of the Constitution inasmuch as it was enacted in the interest of the general public and, having regard to the class of cases to which this sub-section .applies and the menace which an extemment order passed under it is restrictions that it imposes on the fundamental right of free movement of a citizen which is guaran- teed by Art. 19 (!) (d) of the Constitution arc reasonable and come within the purview of Art. 19 (5). to avert, intended the question whether The determination of the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enumerated in Art. 19 (1) ( d) of the Constitution are reasonable or not within the meaning of clause (5) of the article the procedural part of the law as upon its :depends as much on the Court has got to look in each case to substantial part, and the circumstances under which and the manner J'Cstrictions have been imposed. in which There are two kinds of externment orders contemplated by '&Uh-section (I) of s. 27 of the City of Bombay Police Act, 1902; one, where from Greater :Bombay, and the other where the extcrncc is to remove him.self the externmant is directed • ... --