N ar-.sh Charan v. Paresh Cha an

to the file of Mr. S. F. Azam, Magte. with transferred powers u/s 30, Cr. P. C. for favour of disposal". tried by Mr. S. F. Azam, The appellants were the first class exercising powers under Magistrate of section 30 · of the Code of Criminal Procedure on Indian charges under sections 366 and 143 of them was convicted under Penal Code and each of the sections and sentenced to rigorous imprison ment for five years under section 366, Indian Penal Code, no separate sentence having been passed under section 143. The appellants preferred an appeal to the High Court of Judicature at Patna. The appeal was heard by a Bench consisting -of S. K. Das and C. P. Sinha, JJ. There was a difference of opinion between learned Judges as to the constitutionality of sec- the Code of Criminal Procedure. S. K. Das; .tion 30 of impugned section. tdid not · J., took the view that the bring about any discrimination or inequality between persons similarly. circumstanced and consequently did not off end the equal . protection clause of the Consti tution, whi1e C. P. Sinha, J,, .was •. of ~ the opinion that 11-89 S. C. India/59 1048 SUPREME COURT REPORTS [1955] i954 ·-....:.. Budhan Clwiit!h,y andOthert v. Tile Stat• of Bikar Das].· the section was hit by article 14. The appeal was thereupon placed before Reuben, C. J ., who in agree ment with S. K. Das, J., held that section 30 did not violate the inhibition of article 14. The learned Chief the sen Justice upheld tence. On application by the appellants the High Court granted them a certificate under article 132 (1) and the present appeal has been filed accordingly. the conviction but reduced support appearing the Constitution of The learned Advocate the appeal wntends before us, as was done before the High Court, that there had been an infraction of the appellants guaranteed fundamental rights India. The under article 14 of complaint is that the appellants had been tried a section 30 Magistrate and not by a Court of Session. ·to A section 30 Magistrate is enjoined by that section try the case brought before him as a Magistrate accordingly in cases like the present. case he will follow the warrant procedure which is different from the pro cedure followed by a Court of Session. The substance the Sessions of the grievance Judge is much more advantageous to the accused per son en that he gets the benefit of the commitment pro then a trial before ceedings before a Magistrate and jury or asses the Sessions Judge with the aid of the sors. It has not been seriously questioned before us that in spite of the risk of imposition of a punish ment heavier than what a section 30 Magistrate advant inflict, a trial by a Sessions Judge is of greater age to the accused than a trial before a Magistrate therefore, to see whether this appearent discrimination offends against the equal protection clause of our Constitu tion. the warrant procedure. We have, trial before is that a The provisions of article 14 of the Constitution have come up for discussion before this Court in a number of cases, namely, Chiranjit Lal Chowdhurt v. The Union of India('), The State of Bombay v. F. N. Balsara( '), The State of West Bengal v. Anwar Ali ), Kathi Raning Rawat v. The State of Sau- Sarkar( 3 (,) [1950] S.C.R. 869. (2) [1951] S.C.R. 682. (3) [1958] S.C.R. 284. .,. / .. ' r J 1 954 Budhan Chourlhry and Others v. The State of Bihar Das]. S.C.R. SUPREME COURT REPORTS 1049 ). ( i) persons or things article 14 forbids class reasonable classification In order, however, classification two rashtra( 1 ), Lachmandas Kewafram Ahuja v. The" State of Bombay(2) and Qasim Razvi v. The State of Hydera bad(3) and Habeeb Mohamad v. The State of Hydera It is, i:o enter upon therefore, not necessary bad ( 4 the meaning, scope and any lengthy discussion as to It is" now well-estab effect of the article in question. legislation, lished that while it does not forbid to pass purposes of legislation. conditions the test of permissible must be · fulfilled, namely, the classification must be founded on an intelligible differentia which that are grouped to distinguishes gether from others left out of the group and. (ii) that relation to the that differentia must have a rational object sought to be achieved by the statute in ques tion. The classification _may be founded on different objects bases; namely, geographical, or or occupations or the like. What is ·necessary is that there must be a nexus between the basis of classifica consideration. tion and the object of the Act under It is also well-established by of this that article 14 condemns discrimination not Court only by a law but also by a law of pro cedure. The contention now put forward as to the invalidity of the trial of the appellants has, therefore to be tested in the light of the principles so laid down in the decisions of this Court. the decisions substantive according There are no summary trials and (iv) less than four modes of trial pres the Code of Criminal Procedure, namely, cribed by cases, ( i) trial of sessions cases, (ii) trial of warrant trials before a High (iii) the procedure Court and a Court of Session each of these trials is different. Section 28 of the Code of Criminal Procedure which is to be found in Chap ter III which deals with "Powers of Courts" reads follows:- - "28. Subject to Code, any offence under the be tried- (I) [ 1952] s. C.R. 435. (3) [1953] S.C.R. 581. provlSlons Indian Penal Code may (2) [1952] S.C.R. 710. (4) [1953] S.C.R. 661. 1050 SUPREME COURT REPORTS [1955] 1954 Bwlhan Chaudhry and Others v. The State of Bihar: DasJ. (a) by the High Court, or (b) by the Court of Session, or (c) by other Court offence is shown in the eighth column schedule to be triable". Section 30, as it now stands, provides :- of the second ... - Pradesh, exceeding "30. In Assam, Madhya sentence Punjab, Oudh, Madhya Bharat, Hyderabad, Mysore, Patiala and East Punjab States Union and Rajasthan, in all other States Part C States and in those parts of the in which there are Deputy Commissioners or Assis·· tant Commissioners the State Government may, not withstanding anything contained m section 28 or sec tion 29, invest the District Magistrate or any Magis trate of the first class, with power to try as a Magis trate all offences not punishable with death". Section 34 puts a limit to the power of punishment of a section 30 Magistrate in terms following:- "34. The Court of a Magistrate, specially powered under section 30, may authorised by law, except a sentence of death transportation for a term imprisonment for a term exceeding seven years". It will be noticed clause "subject to the other prov1S1ons of this Code". and the second schedule This means that the section referred to therein are controlled by the other provi section sions of the Code including the provisions of 30. Further, the text of section 30 itself quite clearly its provisions will operate "notwithstanding says that anything contained m 29". section Therefore, the provisions of section 28 and the second schedule must give way to the provisions section learned Attor 30. or overrides ney-General altogether the prov1s1ons of section 28 and the second territories schedule m the sense that in the specified Magistrates empowered under section 30 become only tribunal competent to try all offences not punish able with death to the exclusion of all other Courts schedule. mentioned in the 8th column of the second It is not, however, claimed by the that section 30 abrogates section 28 begins with section 28 i95.f Budhan Chaudhry · and Others v. The State of Bihar Das J. - - y 1 '--. -+ ' -...:; S.c.R.· SUPREME COURT REPORTS 1051 for, learned Attorney-General. then there tould . be no If that had been the position, situation, question of discrimination, section 30 Magistrate's Court would be the only Court in which all offences not punishable with death would become triable. As already stated, this extreme claim is ·not made by the The effect of the State Government investing the District Magistrate or any Magistrate of the first class with power under section 30 is to bring into being an addi tional court in which all offences not punishable with death become triable. . In other words, the effect of the exercise of authority by the State Government under section 30 is, as it were, to add in the 8th column of the second schedule the Magistrate powered as a Court before whom all offences not punishable with death will also be triable. The question is whether this result brings about any inequality fore the law and militates against the guarantee of article 14. Section 30, however, empowers the State Gov ernment in· certain areas to invest the District Magis- trate or any Magistrate of the first class with power to try as a Magistrate all offences not punishable with classification on which death. There is an obvious this section is based, namely, that such power may be conferred on specified Magistrates in certain localities only and in respect of some offences only, namely, all offences other than those punishable with death. The Legislature understands and correctly appreciates needs of its own people which may vary from place to place. As already observed, a classification may be considerations. based on geographical An instance of such to be found in the Abducted Persons (Recovery and Restora tion) Act, 1949 which came up for discussion· before in The State of this Court and was upheld as valid ). S. K. Das, J., and the learned Punjab v. Ajaib Singh( 1 Chief Justice· have in their respective judgments refer the ·distance between red to certain circumstances, e.g. the headquarters. ; where the place of occurrence and or territorial territorial classification (1) [1953] S.C.R. 254. '!954-: Budh,,,;°Ch~wihty ' and ·Othirs v. Th~ ·state of Bihar zi~,j. 1052 SUPREME COURT REPORTS. [I955J In · The • section only classification . quite a· reasonable one; the Court of Session functions at considerable . vals, the inconvenience .of bringing up witnesses the interior, the difficulty of .finding· .in .the backward or out of the way places sufficient . number· of suitable persons to .act as jurors .or assessors, all of which make sense, the section -itself does not bring ··about any dis authorises. crimination whatever. the State Government · to invest · Magistrates , punishable with with poweF .to try all offences · not death ·and this authority . the State·. can: exercise invests any Magistrate with powers under section 30 anybody who commits any offence not punishable: with 'death and triable by a Court of . ·•Session under section '28 read liable to be tried by with the second schedule is also the section 30. Magistrate. The risk of such liability falls alike .. upon all persons committing such ·an offence. Therefore, there is no discrimination m the · section . itself. the . specified ·places. .. ' If the:· State certain if it discrimination the .strength of in operation,. yet, The learned counsel for the appellants, however, the decision of contends,. on in Yick Wo 'v. Peter· Hop Supreme 'Court of America kins(') that "though a law. be fair on its face and administered by partial public authority with an evil eye and an unequal hand so as practically to· make illegal ween persons in similar circumstances materially justice is still within their rights, the denial· of. equal the prohibition of the . :Constitution". The contention that although the section· itself may not be discri- · minatory, it may lend itself to. abuse bringing a discrimination between per.sons accused .. of offences· of the saine kind, .for the. police may send up a person accused·: of an offence under section 366- to a· section 30 Magistrate and the police may send another person to a accused of an offence· under · the Magistrate who can commit .the accused to .. the Court of Session. this contention with dose scrutiny. When a , It is necessary. to examine · .case. ·under section· 366, Indian .Penal. same section (1) [1886] 118 U.S. 356; 29 L. Ed. 220. ,;··. 'r. , •. • ,,. '; • •.1954 BUtihaii Choiit/hiy and Others v.· The State of Bi!uzr "Das]. ' ' ,. S.C.R. SUPREME COURT REPORTS 1053 the section shall be tried by the section facts and circumstances of the to the Coun of Session. Here, the evidence and before framing Code, which is a case triable by a Court of Session under the second schedule, is put up before a· section 30 Magistrate, the section 30 Magistrate is . not neces sarily bound to try the case himself. Section 34 limits the power of . the section 30 Magistrate in . the matter of punishment. · If the section 30 Magistrate after ·re a charge cording feels that in the ·will not the maximum sentence which he . can inflict meet the ends of justice he may, ·. instead · of disposing of the case himself, act under section 347 and commit . :whether the accused the accused person 30 Magistrate .. or by the Cowt of Session is decided not . py the executive but is decided according to the discre 30 Magistrate tion judicially exercised by .person accused of himself. Take the case of another is sent up by the section 366 which an offence under police to a Magistrate . who is not empowered under section 30. Such Magistrate after· perusing. the challan and other relevant papers may, if he thinks . that ends of justice will be met 'if the case tried . by a section 30 Magistrate, submit the case to the District for such Magistrate with his own recommendations action as the latter may think fit to take under tion 528 of the Code of Criminal Procedure. That is what was done in the instant case. On the other hand, he may take evidence under section 208 and after the evidence has been taken, make up his • mind judicially whether he should proceed · under section 209 or sec tion 210. He may consider the evidence circumstances of the require that the accused person the ends of justice and in should be committed to the Coun of Session frame a charge and that event he will · proceed to If, how follow the provisions of sections 210 to 213. ever,· the Magistrate is satisfied on the facts of the case that the ends of. justice will be sufficiently met tried by a section 30 Magistrate having the accused is jurisdiction in, the matter, •the Magistrate may report to the : District Magistrate .and the latter may, in his discretion, withdraw the case under · section 528 · 9f the case disclosed in in the facts :1954 BiJilhan Chouabiy and. Others V• "l;"he St.U'.of Bihilr Das]• J054 SUPREME 'COURT REPORTS [1955] that discrimination may to whether a person charged · under . and may en~ Co?e ?f Criminal Procedure to himself qmre mto or try such case himself or refer it for ·en quiry or trial ·to any -other Magistrate competent · fo such ·a case there is exercise of judi try the same. section cial discretion at two stages, namely; under 209 by the Magistrate before whom the accused was sent up for enquiry and also by the District Magis trate acting under section 528 of the · Code of Criminal Procedure. · It is thus clear· that the ultimate decision section 366 should be tried by the Court of Session or by a section 30 Magistrate does not depend merely on the whim or idiosyncracies of the police or the executive Gov ernment but depends ultimately on the proper concerned. cise of judicial discretion by the Magistrate It is suggested be brought about either by- the Legislature or the Executive or even the Judiciary and the inhibition 14 extends to all actions of the State denying equal pro tection of the laws whether it be the action of anyone It has, however, to the State. be remembered that, in the' language of Frankfurter, J., in Snowden v. Hughes('), "the Constitution does not assure uniformity of decisions or merely erroneous , action, whether by the Courts or the executive agencies of a State". The judicial deci sion must of necessity depend on the facts and circum stances of each particular case and what may super ficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection of law unless there is shown to be present and purposeful · dis in it an element of intentional v. in Snowden cnnunation. Hughes (supra). ·whatever that . there . has been at any stage any intentional or purposeful discrimination against . the appellants by the Sub-Divisional Magistrate or the District Magis trate or the section 30 Magistrate who actually tried the accused. Further, the: discretion of judicial ·officers the law provides for revision by is not arbitrary arid It may be mentioned at once there is no suggestion (See per Stone, C.J., the three limbs of the present case immunity article (1) (1944) 321 JJ.S. 1; 88 L. Ed.497. .. A-. • S.C.R. SUPREME COURT REPORTS 1055 superior Courts of orders passed by the In such circumstances, there is Courts. ground for · apprehending any capnc1ous tion by judicial tribunals. Subordinate hardly any discrimina- On the facts and circumstances of this case we find <>Urselves in agreement with S. K. Das, J., and Reuben, infringement of funda C.J., and hold that no case of In mental right under Article 14 has been made out. the circumstances, we dismiss this appeal. . Appeal dismissed. 1954 Budhan GhOudhry and Others v·. TheSta~'oj Bihar Das]. BHATARAJU NAGESHWARA RAO fl. 1954 Dectmber 3 THE HON'BLE JUDGES OF THE MADRAS HIGH COURT AND OTHERS. [MuKHERJEA, S. R. DAs and VIVIAN BosE JJ.] - 1 Procedu·re-Supreme Court-Suspension of Advocate by High Court-Appeal to Supreme Court-Respondents to be impleaded such appeal-Indian Bar Councils Act (XXXVIII of 1926), s. 12. y It is wrong and inappropriate to implead the Judges of the High "" Court as respondents in an appeal preferred to the Supreme Court by an Advocate against whom .an order of suspension was passed by the High Court under s. 12 of the Indian Bar Councils Act, 1926. In such appeal the proper respondents are the complainant if any, Bar Council or Secretary thereof and the Advocate-General of the State concerned. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 146 of 1954. ·-+ .. Appeal by Special Leave from the Judgment and Order dated the 17th day of December, 1952, of High Court of Judicature at Madras in Referred Case No. 45 of 1952 arising out of the Report dated 27th day of March, .1951, of the Court of District Judge, Krishna in C.M.P; No. 123 of 1951. S. P. Sinha, (K. R. Chaudhary and Sardar Baha dur, with him), for the appellant . .,.:; R. Ganapathy Iyer and P. G. Gokhale, respon- dent No. L