EDWARD EZRA & Anr. v. THE STATE OF WEST BENGAL

Held, (repelling the contention) that what was pending before the High Court on the 9th April, 1952 were the appeals taken by the appellants (and their co-accused) against the judgment of First Special Tribunal Calcutta constituted under the Central Ordi nance XXIX Of 1943 and in order to attract the operation of s. 12 it was necessary to show that the proceedings which were pending before the Special Court under \Vest Bengal Act XII of 1952, were pending before a Court other than a Special Court on 9th April 1952. The expression "proceedings in a court other than a Special Court" occurring in s. 12 means and refers to proi:eedings relating to the trial of a case in the original court and not to proceedings in ap peal. The object of the legislature in enacting s. 12 was that cases pending before an ordinary or a non-special court at the date when the Ordinance came into existence and \vhich were being tried in the should not be brought to trial or tried by the special ordinary \vay Court in spite of the provisions of the new section 4(1) introduced by the Ordinance into the Act. This reason manifestly could have there could be no ques no application to appellate proceedings tion of cases pending in appeals being allotted to special courts for trial. How the case \Vas to proceed further if the appellate court directed a rehearing would depend entirely on the order which the appellate court passed and was con1petent in law to pass. Accordingly_, as the High Court did not acquit the accused or make an order of discharge but simply set aside the conviction and sentence directing the retrial of the cases by a competent court, the only court which \Vas competent to try these cases would be the Special Court under Act XII of 1952 and its jurisdiction could not be ousted as the order of the High Court itself proceeded on the footing that no trial could be held by the Tribunal constituted under Ordi nance XXIX of 1943. CRIMINAL APPELLATE JuRISDICTION : Criminal Appeal No. 83 of 1954. the Judgment and Order dated Appeal by Special Leave granted by the Supreme Court by its Order dated the 14th September, 1953 the 5th June, 1953 of the High Court of Judicature for the State of West Bengal at Calcutta in Criminal Revisions Nos. 1205 and 1204 of 1952. Ajit Kumar Dutta, (A. K. Dutt and S. Chose, with him), for the appellants. C. K. Daphtary, Solicitor-General Mehta, P. G. Gokhale and N. C. him), for the respondent. India, (P. A. Chakravarty, with S.C.R. SUPREME COURT REPORTS 1027

#1954. November 30. The Judgment of the Court 1954 Edward E:e:ra and Another v. The State of West Bengal Mukheijea J. was delivered by certain them and pending before a MuKHERJEA, J.-This appeal, which has it would be necessary facts. The two against a judg before us on special leave, is directed ment of Chunder, J. of the Calcutta High Court dated the 5th of June, 1952, rejecting the appellants' criminal proceedings cation for quashing of special started against court constituted under a notification of the Govern ment of West Bengal issued under West Bengal Act XII of 1952. To appreciate the contentions raised on appellants behalf of the narrate a few antecedent appellants along with four other persons, one of whom has died since then, were placed on trial before the First Spe cial Tribunal, Calcutta, which was one of the Tribu the Criminal Law Amend nals constituted under ment Ordinance XXIX of Governor-General of Government of India Act, 1935, on charges of bribery 120..B of the as also of Indian Penal Code, read with section 420 of the Code which was later on replaced by section 409. The trial ended in conviction of all the accused; though not on them and by its judg all the charges brought against ment dated the Tribunal sen tenced them to various terms of imprisonment and fine. 1943 passed by 72 of the 26th May, 1952, India under section conspiracy under section It may be convenient to refer here to two of the provisions of Ordinance XXIX of 1943 under which the trial was held and which are material for our pre sent purpose. One of these relates to the composition of the special tribunal and section 4(1) of the Ordin constituted ance lays down that "a special under this Ordinance shall consist of three members". This provision was modified by section 3 of Ordinance I of 1950 which lays down far as the First for the Special Tribunal at Calcutta is concerned, words "three members" occurring in section 4(1), the words "two members" shall be substituted. The other material provision is contained in section 5(1) of the Ordinance as it stood after the amendment of 1946, tribunal that so - - • 1 954 . .Edwa·rd Ezra and Another . v. · The Stai. of West Bengal . Mukherfea .]. 1028 SUPREME COURT REPORTS [1955] trial to lays down jurisdiction the same section. read with sub-section (2) of Sec tion 5 ( 1) provides that "the Central Government may from time to. time, by notification in the official Ga tribunal"; zette, allot cases for each special tribunal and section 5(2) that "the special shall have .to try the cases for the being respectively allotted to them under sub-section ( 1) in respect of such of the charges for offences speci fied in the schedule as may be preferred against several accused". The result, therefore, though a number of offences are specified dule, it is not all cases of these offences which are to be tried by the special tribunal but only such of them . as the Central Government may, in its discretion, allot to the tribunal. in the the special the first place them, vitiated To proceed with the narrative of facts, there were separate appeals taken by all the five accused against the judgment of tribunal, mentioned above, to the High Court of Calcutta under the provisions . of the Ordinance itself. The appeals were heard by a Division Bench consisting of Chakravartti, C. J. and Judges did not enter into the Sinha, J. The learned merits of the cases but allowed . appeals on . two points of law which, according entire trial. It was held special tribunal, which consisted of three members to wit Mr. Barucha, Mr. Joshi and Mr. Bose at the mate rial time, legally ceased to exist on and frop.1 the 16th of December, 1949, when Mr. Bose, one of the mem bers, resigned. the Amending Or dina_nce I of 1950 was passed on the 11th of January, 1950, but as the a fresh tribunal by means of a fresh notification in the gazette as required by section 3 of the new Ordinance, . the two remaining members could not be regarded as the meaning of a legally constituted tribunal within the Ordinance and all the proceedings before it after the resignation of the judgment delivered by it were void. tribunal was not reconstituted third member, including true that It section It was held in the second place 5(1) of the Ordinance XXIX of 1943 as it stood after the amendment of 1946, read with section 5(2) autho- that as ' 1954 Edward Ezra and Another v. The State of Weit Bengal Mukherjea J. ... 'f - S.C.R. SUPREME COURT REPORTS 1029 rises a special court to· try not all cases of offences :specified in the schedule but only those which State Government may in its discretion direct it, be -came repugnant to Article 14 of the Constitution force. The trial soon as the Constitution came into held after the 26th of January, 1950, was therefore bad and although no evidence was taken discriminations in the shape of departures even in the stage from normal procedure were involved <Jf arguments and pronouncement of judgment against the accused, the conviction and sentence must consequently be set aside. should the learned for nearly After holding the trial to be bad by reason of the illegalities mentioned above, Judges -be the final order ceeded to consider what passed in the appeals. Having regard to the volu minous evidence on the record, they did not consider it proper to make an order of acquittal in these cases. fact that the accused They indeed felt distressed by the strain of a protracted had already undergone but held four years and harassing trial that such considerations could not weigh with a court so as to restrain it from making an order which the law requires. The order passed by the High Court was that the accused should be retried in accordance with law by a court of competent jurisdiction, - it being to the State Government to decide whether actually the trial ·should be proceeded with or not. This order of April, 1952. On the was pronounced on the 29th 30th of July, 1952, the West Bengal Act XII of 1952 ·came into force following an ordinance laying down similar provisions which amended in respects the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act of 1949. On the 22nd August, 1952, three special courts were constituted by a notification of the Government of West Bengal under section 4(2) of this Act of 1949, one of them being described as the West Bengal Second Special Court; :and bv a notification dated the 19th of September, 1952, Mr. N. L. Some was appointed Special Judge to this Court. On the 8th of October, 1952, preside over the case against the :a notification was issued allotting certain 1 954 Edward Ezra and Anoth61' v. The State of West Bengal Mukherjea ]. ' • ·• - - 1030 SUPREME COURT REPORTS [1955] of the to this section 120-B, Appellants and their co-accused second court for trial and on the 12th of November, 1952, a fresh petition of complaint was filed by one Kalidas Bur man, Inspector of Police, Delhi Special Establishment, against the accused under read with section 409 and sections 409 and 109 Indian Penal Code. On the 21st of November following, sum monses were issued in pursuance of the complaint within 6 days from that date all the five accused moved the High Court of Calcutta and rules were issued in their favour calling upon the State Government show cause why the process issued on the basis of the petition of complaint filed by Kalidas Burman should not be quashed. All these rules came up for hearing before Ch under, J. sitting singly and the rules were discharged on the 5th of June, 1953. The appellants, the petitioners in Revision Cases Nos. 1204 who were and 1205 of 1952, prayed for leave to this. Judge which was. court against this order of the single rejected. They subsequently obtained from this court, on the strength of which the case has come before us. to appeal special the High Court passed in The substantial point raised by Mr. Dutt, who 12 appeared in support of the appeal, is, that section as a bar of the West Bengal Act XII of 1952 operates to the trial of this case under the Act. It is argued that under orders of appeals, it is the original case, which was commenced before the First Special Tribunal, Calcutta, under Central Ordinance XXIX of 1943 which is tried by the special court constituted under the West Bengal Act XII of 1952. This case, it is pointed out, was pending before the High Court on the 9th April, 1952, which was the date of the commencement of the· West Bengal Ordinance preceding the Act and to such cases the provisions of the Act have been expressly made inapplicable by section 12. It is to be noted that tlle West Bengal Criminal Law Amendment (Special Courts) Act, (Act XXI of ·1939) was amended by the West Bengal Ordinance VIII of 1952 which came into force on the 9th of April; 1952, replaced by this Ordinance was subsequently - - 1954 Edward E;;ra and Another v. The State of We /Bengal Mukherjea J. S.C.R. SUPREME COURT REPORTS 1031 'f West Bengal Act XII of 1952. Section 12 of the Act provides as follows : "Nothing in this Act shall apply the date of the any pro commencement ceedings pending on of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than a special court". Mr. Dutt contends 1s noth- ing but a continuation of the original case which was tried by the First Special Tribunal of Calcutta under the Central Government Ordinance XXIX of 1943 and against the decision of which Tribunal appeals were taken to the High Court. The appeals were pend ing before the High Court when Ordinance VIII of 1952 was passed and consequently section 12 of Act XII of 1952 would exclude provisions of the Act to the present case. the present case the application _., y --... the question is prejudicial the procedure respects assigned examine they are trial of presided over to follow a particular procedure the Code of Criminal Procedure and For a proper determination would be necessary first of all to the precise scope and object of section 12 of the West Bengal Act XII of 1952. This, as said above, has only amended 1949. certain provisions of the earlier Act XXI of Act XXI of 1949 provides establishment special Judges of special courts them which differs in certain the accused. Section 4(1) extent of Act XXI of 1949, as it stood before the amend- ment of 1952, provided that "the Provincial Govern- -. ment may from time to time by notification Judge"; official gazette allot cases for trial to a special and sub-section (2) of the section laid down that "the special Judge shall have jurisdiction to try cases the time being allotted to him under sub-section (1) in respect of such of the charges for the offences speci fied in the schedule as may be preferred against is at several acc~sed, and any such case which .~ commencement of this Act or at the time of such allotment pending before any court or any other spe transferred to the . cial Judge shall be deemed to be special Judge to whom it is allotted". The result of 10-89 S. ·c. India/59. 1954 Edward Ezra and Another v. The State of West·&ngal Mukherjea J. 1032 SUPREME COURT REPORTS [1955] to a special two sub-sections that all the cases of offences specified the combined operation of the fore was in the schedule were not to be tried by a special court but those only could be tried, which the Provincial Gov ernment in its discretion might allot to it. Further there was nothing to prevent the Provincial Govern ment from allotting a case already pending before ordinary this Act. A provision which allows the Government an unfettered discretion to choose from to the Act, cases of offences, specified in the schedule tribunal which of them, it would allot to the special for trial according to the special procedure, being left to be tried in the ordinary way, became, after the coming into force of the Constitution, open to the charge of being obnoxious to the equal protec in Article 14 of the Constitu tion clause embodied tion. cou:t constituted amongst of this This defect was removed and of dis the chance crimination eliminated by the Amending Ordinance VIII of 1952, which was afterwards enacted into Act XII of 1952. Section 4 of the Ordinance replaced sec tion 4 of the Act and sub-section ( 1) section laid down that "notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law, the offences specified in the schedule be triable by special courts only". There was no pro vision in corres this new section of the Ordinance, ponding to section 4(2) of the Act under which- cases schedule pending before of offences specified in the ordinary courts could be transferred to special courts. This in the position created by section 4(1) of the Ordinance was that of fences specified in the schedule were compulsorily able by special courts, a difficulty legitimately arise with cases pending before ordinary courts and the question could be raised whether ordinary courts would have jurisdiction at all to pro ceed with trial of these cases after the enactment of section 4( 1) of the Ordinance. seems clear that in It this difficulty section order to obviate duced in Act XII of 1950, which replaced Ordinance sense was anomalous regard to and as 12 was - t -I ,,_ ~ ,_ ).__ ' S.C.R. SUPREME COURT REPORTS 1033 VIII of 1952, and the section expressly provides the Act would not apply to proceedings pending be fore any court other than a special court on the date that Ordinance VIII of 1952 came into force. All these pending cases, to or tried by a special court under the Act. The question, the prohibition for our created by section 12 is attracted to the facts of present case. therefore, could not be allotted consideration is whether 1 954 Edward Ezrc and Another v. The State of West Bengal Mukherjea J. - ' - against appeals and their taken by than a special court than a special court" occurring Now what was pending before the High Court on the 9th April, 1952, were the co-accused appellants ment of the First Special Tribunal, Calcutta, consti tuted under the Central Ordinance XXIX of 1943. We may agree with the learned counsel for the appeal lants that the High Court not being a special court, the provisions of section 12 of the Act could not apply itself would be of no to these proceedings, but this by assistance to the appellants. To attract the operation of section 12, it is necessary to show that the proceed ings which are now before the Special Court under West Bengal Act XII of 1952 were pending before a the 9th April, court other 1952. In our opinion the expression in sec a court other tion 12 means and refers to proceedings trial of a case in the original court and not to proceed If we look to the provisions of Act ings in appeal. XII of 1952, we would find that all of them relate to matters concerning constitution, powers of the special courts and the special rules of procedure which they are to apply in the trial of cases, to an appeal. and not one of them has any reference 12, section The object of the legislature in enacting as stated above, was that cases pending before ordinary or a non-special court at the date when Ordinance came into existence and which were being should not be brought on tried in the ordinary way, the provi to or tried by the special courts in spite of sion of the new section 4(1) introduced by the Ordi nance into the Act. This reason manifestly could have no application to appellate proceedings, "proceedings jurisdiction, relating , , 1954 Edward Ez-,ra and Another v. T!Ee State of West lhnga MukJ,,,fea J. 1034 SUPREME COURT REPORTS [1955] could be no question of cases pending in appeals being allotted to special courts for trial. How the case is to if the appellate court di~ects a rehear proceed further ing would depend entirely on the order which the ap law to pass. pellate court passes and is competent in If the appeal court directs retrial by an ordinary court, as the court competent to try the case or that is the implication of the order, the jurisdiction of the special court would be barred not by reason of section 12 of the Special Act but by reason of the order made In our opinion the pendency of by the appeal court. the relevant the appeals before the High Court on 12, section date could not attract the operation but as the appeals were taken to the High Court from the decision of a court other than a special court contemplated by Act XII of 1952, whether the retrial directed by the High Court could be held by a court under Act XII of 1952, would depend on the nature and effect of the order which the High Court has made. sentence and The High Court did not acquit the accused, nor favour. They order of discharge in their make any directed set aside the conviction and the retrial of the accused by a competent court in ac cordance with law if the Government chose to proceed against them. We agree with Mr. Dutt that ordi narily an order of retrial means a further trial by• the same Tribunal which took cognizance of the case and before which the case must be deemep to be pending until it is finally disposed of in one way or other re In this case the accused were neither cognized by law. but the High Court set acquitted, nor discharged, on the aside the proceedings of the ground that the trial held by it became void on and section 5(1) of the from the 26th Ordinance under which the allotment of the case was made and the Tribunal acquired inoperative as soon as the Constitu became void and tion came into force, by reason of its being in conflict with Article 14 of the Constitution. The Special Tribu nal, therefore, from which the came to the High Court must be held according to the decision of jurisdiction to try January, 1950, as appeals special Edward Ezra and Another v. The State of West Bengal Mukherjea ]. .. y - S.C.R. SUPREME COURT REPORTS 1035 to be the High Court itself to have lost seisin of these cases after the 26th January, 1950, and they had no diction to proceed with the trial. As the High Court tried by a competent court, directed these cases they could not possibly be sent back for trial to the Special Tribunal assuming that any such Tribunal the Central Gov existed or could be constituted by to try ernment. The only court which was competent under Act XII these cases would be the special court of 1952 and its jurisdiction could not be ousted as order of the High Court itself proceeded on the ing that no trial could be held by the Tribunal con stituted under Ordinance XXIX of 1943. The diction of the special court not being ousted by section 12 of the Act or by the order of the High Court, we are unable to hold that the should be quashed. proceedings before The result is that the appeal is dismissed. NARESH CHARAN DAS GUPTA v. PARESH CHARAN DAS GUPTA [MEHR CHAND MAHAJAN C.J., BHAGWATI, JAGAN NADHADAS and VENKATARAMA AYYAR JJ.] Will-Executed witlz due solemnities by a person of competent • understanding-Onus of proving undue infiuence-Undue infiuence -Meaning of-Indian Succession Act, 1925 (XXXIX of 1925), s. 63-Due attestation-Proof of. When once it has been proved that a will has been executed with Jue solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the person who alleges it. It is well-settled brought to bear on a testator that can be characterised as "undue". ~ It is open to a person to plead his cause before the te~tator and to persuade him to make a disposition in his favour. And if the testator is not every influence which that it 133