Bhoj Ravat and Others vs State

The applts. have been convicted by the Special Judge, Ct. of the Criminal Jurisdiction Saurashtra State, of offences of murder, attempt to murder & robbery Under Sections 302, 307 & 392-397, I.P.C. read with Section 31, I.P.C.. & have been awarded sentences of death & other sentences & the matter has also come up before us for confirmation of the death sentence. An armed Police party consisting of three constables named Ismail Umar, Tapu Amra & Haji Nathu had been stationed at Gal Kotdi, a village in the Babra Taluka, shortly prior to the date of the occurrence, & the said constables had been invited to dinner by Darbar Visatnanwala of the village at the Darbargadh in the evening of 10-10-1949. Accused 1, Bhoj Ravat, who is a relation of Darbar Visamanawala, being the son of Visamanawala''s mother''s Bister, happened to be in the village that day & he was also invited to the dinner. Accused 2, Raning Ravat, who is the brother-in-law of Visamanawala''s deceased brother Rukhadwala, was residing with Visamanawala & was working as his servant along - with his younger brother Jilu. Accused 3, Ratna Vira, had come to Gal Kotdi since 3 or 4 days & was living with Visamanawala in the Darbargadh. In response to the invitation of the Darbar the three constables went to the Darbargadh in the evening, taking along their rifles & ammunition, & Bhoj Ravat, accused 1, also attended. The prosecution alleged that Visamanawala & the three accused had made a prearranged plan to murder the three constables & to rob them of their rifles & ammunition, & that in furtherance of their common intention, as the constables were engaged in having their meal Raning picked up Visamanawala''s gun, which Ratna had by his side, on the pretext of handling it & then fired it at Tapu & then at Ismail. Ismail dropped dead on the spot & Tapu started to run, but Eaning fired a second shot at him. He was seriously wounded, but he managed to run away. Haji too fled from the place. It is said that Bhoj & Ratna snatched the arms of the three constables immediately on Eaning firing the shot & that after the incident accused 1 took the rifles to inner apartments of the Darbargadh where Visamanawala had retired, & subsequently both of them left the Darbargadh taking along the rifles & the ammunition. Raning & Ratna also left the Darbargadh, & on the way they fired a shot at the house of Kanbi Madha Punja of the village & then they & Visamanawala decamped from the village. Bhoj, however, stayed on in the village. Despite the fact that Tapu had been seriously wounded, he went to Babra the same night & lodged the first information in consequence of which the police went to the village & started the investigation. Bhoj was arrested the next morning as he was going towards the ''Chora'' of the village. The remaining three accused started on their wanderings, but five days later Raning surrendered to the police. Visamanwala was shot dead on 16.10-1949 by Eatna & Ratna himself was arrested on 3-11-1949. The three accused were then prosecuted for the abovesaid offences.

The accused admitted their presence at the scene of the offence in the evening of 10-10-1949, but stated that they were there quite innocently & took no part whatever in the offence. Accused 1 stated that the relations between him & Visamanwala had been estranged already & that he attended the dinner in order not to estrange them further, & that he was greatly surprised at the sudden firing of the gun & ran away from the place out of fright. Accused 2 denied having fired the rifle at the constables and alleged that it was Visamanwala who did it & that he ran away from the place as he was afraid that he would be involved in the bring. Accused 8 entered the same plea & stated that he ran away & left the village out of sheer fright. The learned Special Judge held that the 3 accused & Visamanwala had the common intention of murdering the constables & robbing them of their arms & ammunition, & that the offences were committed in furtherance of their common intention. Accordingly he convicted the 3 accused, & sentenced them to death for the murder of Ismail, & to seven years E. I. for the attempt to murder Tapu. He also sentenced accused 1 to five years'' R.I. for robbery u/s 392, & Eaning & Eatna to seven years'' R.I. for robbery u/s 392 read with Section 897, I.P.C., & ordered the sentences to run concurrently.

On this appeal, the learned Advocate for accused 2, Raning Ravat, has questioned the jurisdiction of the Special Judge appointed u/s 10, Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 (Ordinance No. XLVI[46] of 1949), which came into force on 2-11-1949. The Special Judge has convicted the accused under the jurisdiction vested in him by this Ordinance. The learned Advocate has challenged the validity of the constitution of the Special Ct. on the ground that its creation is in contravention of Section 14, Const. Ind., which says:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The relevant provisions of the Ordinance are Sections 9, 10 & 11, which are reproduced below:

Special Cts.--The Govt. of the United State of Saurashtra may by notfn. in the official Gazette constitute Special Cts. of Criminal jurisdiction for such area as may be specified in the notfn.

Speoial Judges.--The Govt. of the United State of Saurashtra may appoint a Special Judge to preside over a Special Ct. constituted u/s 9 for any area any person who has been Sess. J. for a period of not less than 2 years under Cr.P.C. 1898, as applied to the United State of Saurashtra.

Jurisdiction of Special Judges--A Special Judge shall try such offences or class of offences or such cases or class of cases as the Govt. of the United State of Saurashtra may, by general or special order in writing, direct.

The learned Advocate has also questioned the validity of Section 11 of the Ordinance. The ground of objection so far as the validity of this section is concerned is based upon the principle of delegatus non potest delegate (a delegate cannot delegate), & it is contended that it was not competent to the legislature to delegate its functions and that the power conferred by Section 11 of the Ordinance amounts to such delegations. We have heard the learned Advocate & the learned Advocate-General. We are of opinion that the grounds of objection are not tenable.

As regards the first objection based upon Article 14, Const. Ind., the Legislative Authority in promulgating the Ordinance has not made any distinction between any person or any class of persons or denied equal protection of laws. What has been done is to constitute Special Cts. for the trial of certain cases. So far as the procedure is concerned, it is bound to vary from place to place as exigencies & peculiar circumstances of society vary, for example, in the Presidency towns an accused may have the benefit of trial by Jury, while such right to an accused in a mofussil city may not be const. to be desirable. This does not mean that the State is denying equality before the law. No person has any vested right in any particular procedure. It is for the State to legislate about the forum & the procedure of seeking remedies for infringement of substantial rights & such forum & procedure are bound to vary. This question has been const. by the recent F.B. of the Hyderabad H.C. in the case of Abdur Bahim v. Joseph A. Pinto AIR 1951 AP 11. The learned Judges observed as under:

The guarantee of equality before the law or the equal protection or be laws, contained in Article 14 of the Constitution means substantial equality of treatment under the laws. Equal treatment does not necessarily mean identical treatment. In fact, identical treatment in unequal circumstances amounts to inequality. In other words, in different circumstances the variation in legal procedure is not only permissible but necessary. Equal protection of laws does not mean protection by identical laws. Sometimes, it is necessary to abridge the ordinary procedure in the interests of justice itself. Of course, no abridgement of legal procedure which curtails the essential safeguard can be permitted. A detailed procedure in normal times & in ordinary cases may become harmful in abnormal times, or in extraordinary & special cases.

We are in agreement with these views expressed by the learned Judges of the Hyderabad H.C. The P.C. case Benoari Lal discussed in detail below also negatives the contention of the learned Advocate of the accused in this respect.

The second objection attacking the validity of Section 11 of the Ordinance apparently presents some difficulty, but the question is fortunately concluded by authority of the highest Ct. Items 3 & 65 of the List II--State List--of Schedule VIII attached to the Const. India, bring within the ambit of the State''s Legislature all questions relating to the constitution & organisation of all Cts. except the S.C. & the H.C. & to prescribe jurisdiction & powers of all Cts. except the S.C. with respect to any of the matters contained in State List, & apparently it would seem to be the function of the Legislature to prescribe the jurisdiction of the Special Judge appointed u/s 10 of of the Ordinance in question. Section 11 empowers the Govt. by general or special order that the Special Judge shall try such offences or class of offences or such cases or class of cases as the Govt. may direct. In short, it would seem that here is a case of delegation of a function of a Legislature to the Executive Govt. But the question is not so easy & has come before the Cts. including the P.C. more than once. We need not cite earlier decisions on the point, but the case of Emperor v. Benodri Lal Sarma which went upto the P.C. & which is reported in 47 Bom. L.R. 260 , seems exactly in point. There also the validity of an ordinance proclaimed by the Governor-General under the former Govt. of India Act, 1935, authorising creation of Special Cts. & prescribing their jurisdiction by the Executive was challenged. The Special Bench of the H.C. of Calcutta whose decision is reported in Benoari Lal Sarma and Others Vs. Emperor, , agreed with the contention of the accused that this Ordinance creating Special Cts. & providing a summary procedure was ultra vires. The decision was confirmed by the F.C. by the judgment reported in AIR 1943 36 (Federal Court) . Chief Justice Varadachariar & Zafrulla Khan J. agreed with the decision of the Calcutta H. C, while Rowland J., who was on the same Bench of the F.C. disagreed. The question went upto the P.C. at the instance of the prosecution & the relevant portion of the judgment on this point is reproduced below:

There remains to be consd. Anr. objection to the validity of the Ordinance which is, as their Lordships understand, the main ground upon which it has been held to be ultra vires. The objection may perhaps be stated in more ways than one, but the substance of it, as appears both from the judgment of Sir Harold Derbyshire in the H.C. & of the Chief Justice in the F.C. is that the Ordinance makes it possible to discriminate between one class of offence & Anr. , so that cases may be tried either in the Special Cts. or under the ordinary & well-established criminal procedure according to the direction & decision of provincial authorities. It is evident that this is an aspect of the matter which has greatly troubled the majority of the Judges in India who have had this case before them, & in view of the well-established practice in India by which decisions in criminal cases are open to review by a H.C. it is natural that those who are versed in applying this system should feel disturbed by the totally different arrangement contained in the Ordinance.

The following are the Sections of the Ordinance which appear to have given the Judges in India most concern:

A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Govt. or a servant of the Crown empowered by the Provincial Govt. in this behalf, may, by general or special order in writing, direct....

A Special Mag. shall try such offences or classes of offences, or such cases or classes of cases other than offences or cases involving offences punishable under the Indian Penal Code with death, as the Provincial Govt. or a servant of the Crown empowered by the Provincial Govt. in this behalf, may, by general or special order in writing, direct....

If any question arises whether, under any order made u/s 5 or 10, an offence is triable by a Special Judge or a Special Mag. the question shall be refd. for decision to the authority which made the order & the decision of that authority shall be final.

(1) A Summary Ct. shall have power to try such offences or classes of offences, or such cases or classes of cases as the District Mag. or in a Presidency town the Chief Presidency Mag., or a servant of the Crown authorised in this behalf by the District Mag. or Chief Presidenoy Mag., may by general or special order direct:

Provided that no person shall be tried by a Summary Ct. for an offence which is punishable with imprisonment for a term exceeding two years, unless it is an offence specified in Sub-section (1) of Section 260 of the Code.

The District Mag. or Chief Presidency Mag. may by general or special order give directions as to the distribution among the Summary Cts. within his jurisdiction of cases triable by them under Sub-section (1).

Sir Harold Derbyshire found that the Sections above quoted were invalid. He pointed out, with justice, that the Ordinance left it to the Local Govt. or to some Officer of the Local Govt. empowered by it in that behalf, to direct what offences or classes of offences, & moreover what cases or classes of cases, should be tried by the Special Cts. He thought that this amounted to repealing the Cr.P.C. in part, for under the Ordinance there would be no trial by jury & no right of appeal & no right of revision by superior Cts. including the H.Cts. such as are enacted by the Code. ''In effect,'' he said ''it is the Provincial Govt. or the District Mag. acting not in a judicial capacity but in an administrative capacity that deprives the subject of his right under the Code & repeals its valid provisions as far as he is concerned. That, in my view, is repealing the Cr.P.C. in part in that instance legislation ad hoc for the man''s case.'' He added that he did not find authority in Section 72 to justify this result; & in his view the above quoted Sections, which he declared invalid, purported to authorise persons other than the duly authorised legislature constituted under the Govt. of India Act, 1985, to repeal ad hoe certain provisions of the Cr.P.C. & the Letters Patent of the H.C. Khundkar, J. agreed with the Chief Justice on this point & stated his objection to the above quoted sections of the Ordinance thus:

The result is that no man accused of an offence may know whether he is to be tried by a Ct. under the Code, subject to all the safeguards provided by the Code, including a right of appeal or revision under the Code, or to be tried on the mere motion of the Provincial Govt. or of an officer of the Grown empowered by the Provincial Govt., by some one or other of the Special Cts. under the Ordinance. The Provincial Govt. or an officer of the Grown empowered by the Provincial Govt. is endowed with a power that is far reaching, unfettered by rule, unconditional & subject to no supervision by the H.C. or by any Ct. under the Code. It is a power to direct any person accused of any criminal offence to be tried by one or other of the Cts. constituted under the Ordinance.

The Learned Judge goes on to point out what he regards as ''the possible mischief which may flow from the unwise or injudicious exercise of such a power,'' fortifying his criticism by quotations from well-known writers on Jurisprudence such as Anson & Salmond; & he concludes that the above quoted sections are ultra vires on the ground that the Ordinance gives to the Provincial Govts. a ''power to effectuate jurisdiction or Special Criminal Cts. by making orders in individual cases or groups of cases.''

Sen J. as their Lordships understand, did not differ from the Chief Justice & Khundkar J. in this view, though he rested his decision that the Ordinance was ultra vires on other grounds which their Lordships have already indicated.

In the F.C. the Chief Justice dwelt on the value of the revisionary jurisdiction, but consd. that the most serious defect in the impugned Ordinance was the power it conferred to discriminate between one accused & Anr. by directing trial in different Cts.'' He developed his objections on this point by elaborate references to the constitutional principles involved in certain decisions of the S.C. of the United States & of the H.C. of Australia, & quoted passages from the writings of Sir Courteny Ilbert & of Sir Cecil Carr to illustrate the relation between executive & legislative powers in the British Constitution. He concluded that Sections 5, 10 & 16 of the Ordinance are ''open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute & unrestricted discretion, without any legislative provisions or direction laying down the policy or conditions with reference to which that power is to be exercised.'' This was the ground upon which the Chief Justice & Zafrulla Khan J. based their decision that the appeal of the Crown should be dismissed.

With the greatest respect to these eminent Judges, their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. It depends simply on examining the language of the Govt. of India Act, & of comparing the legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise & well framed legislation it is better if circumstances permit to frame a statute in such a way that the offender may know in advance before what Ct. he will be brought if he is charged with a given crime; but that is a question of policy not of law. There is nothing of which their Lordships arc aware in the Indian Constitution to render invalid a statute, whether passed by the Central Legislature or under the Governor General''s Emergency, powers, which does not accord with this principle, Rowland J. at the beginning of his dissenting judgment, collects a number of striking quotations from previous judgments delivered in the P.C. as to the proper rule of construction. Again & again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise which may follow from giving effect to the language used. The Learned Judges who were in the majority in the F.C. would presumably not contest this proposition, & their Lordships rather understand their view to be based on the conception that there is something underlying the written Constitution of India which debars the executive authority, though specially authorised by the statute or Ordinance to do so, from giving directions after the accused has been arrested & charged with orime as to the choice of Ct. which is to try him. Their Lordships are unable to find that any such constitutional limitation is imposed. Indeed, Borland J. points out that if it were held that where two sets of Ct. exist side by side, power cannot be delegated to pass an order directing that a case shall come before the Special Ct., & not before the Ct. under the Code, this would throw doubt on a long course of legislation in India where this very thing is enacted. The learned Judge cites 13 instances, &, in addition to these, refers to the discretion conferred by the Indian Army Act & by the Indian Air Force Act upon the prescribed authority to decide in a particular case, where a Criminal Ct. & a Ct.-martial would both have jurisdiction, before which Ct. the accused shall be brought for trial. There is not of course, the slightest doubt that the Parliament of Westminster could validly enact that the choice of Cts. should rest with an executive authority, & their Lordships are unable to discover any valid reason why the same discretion should not be conferred in India by. the law-making authority, whether that authority is the legislature or the Governor-General, as an exercise of the discretion conferred on the authority to make laws for the peace, order & good govt. of India.

The above decision of the P.C. has been refd. in a recent case of the Bombay H.C. reported in Narottamdas Jethabhai v. A.P. Phillips 52 Bom. L.R. 571, wherein a Resolution of the Govt. extending the pecuniary jurisdiction of the Bombay City Civil Ct. u/s 4 of the Act was held to be bad on the ground that the section itself was ultra vires the Bombay Provincial Legislature inasmuch as it purported to delegate to the Provincial Govt. the power which could only be exercised by the Legislature. The decision in this case has, however, been recently revsd. by the S.C. holding that this was a species of conditional legislation which came directly within the principle enunciated by, the Judicial Committee in the case of the Queen v. Burah 5 I.A. 178 (P.C.) where the taking effect of a particular provision of law is made to depend upon determination of certain facts & conditions by an outside authority. The second case to which reference may be made is of the Madras H.C. reported in In re Veerabhadrarya AIR 1950 Mad. 248, remarks at pp. 249 & 250, where the P.C. case of Bencari Lal Sarma has been exhaustively discussed. In that case it was, how-ever, held that the provision in the Madras Maintenance of Public Order Act authorising the Govt. to extend its operation was bad, as such power could only be exercised by the Legislature itself. A good deal of argument was spent about the nature of the Indian & colonial Legislatures & their relation to the British Parliament & distinction between sovereign & delegated legislation & what is termed as conditional or subordinate legislation & how far the maxim that a Legislature cannot delegate its powers applied. It was observed in that case:

As the legislative power o� a Govt. in vested in the Legislature under the Constitution Act it is not open to the Legislature to surrender or abdicate that power or delegate it to Anr. authority whether it is the execute Govt. or some other body. But a Legislature is authorised to delegate a power which is non-legislative in character. Sometimes the delegated power may be in the nature of conditional legislation authorising an authority such as the executive to determine the time of the commencement of an act & the area of its application after determining, if necessary, certain facts. It may also entrust the power of extending the act to other matters not enumerated in the Act itself. In other cases, the Legislature entrusts to the subordinate bodies the power of making by-laws & regulation so as to carry out into execution the Act in which the principles & the policy of the Legislature have been laid down with precision. In other words, the Legislature by the Act passed by it lays down general principles & the policy, leaving out details to be filled in by regulations or rules by the executive Govt. or some other authority.

The third recent case, which has referred to the P.C. case of Benoari Lel Sharma, is reported in State Vs. Basdeo, , wherein the validity of the Defence of India Act was challenged, in this case also, distinction between the Sovereign & non-sovereign legislation was explained & the practice of delegating legislative power discussed. It is unnecessary however for us to discuss in detail these cases, as the P.C. case appears to he on all fours with the present case.

The learned Advocated General has contended that the Ordinance in question was promulgated, by the Raj Pramukh of the United State of Saurashtra & he has been constituted the Legislative Authority under the Covenant by which the State of Saurashtra was formed, such Legislative authority was a Sovereign Legislature which could enact any laws containing any provision for any delegation. This may or may not be correct, but after the Const. Ind. came into being & the State of Saurashtra was merged in the Indian Onion, whatever its laws which were enacted before its merger could not now stand on a higher basis than any of the laws of other States which were formerly called provinces before the new constitution, as such laws have been continued under the authority of the Constitution subject to the provision that they are consistent with it. This is expressly provided by Articles 13 & 372, Const. Ind. It is however not necessary for us to decide this aspect of the question, as we are of the opinion, following the case of Benoari Lal Sharma, that the Legislation contained in Sections 9 & 10 & 11 of the Ordinance is valid & is not obnoxious to the principle of delegatus non potesi delegare nor does it offend Article 14 of the Constitution relating to equality before the law. We consequently overrule this objection of the learned Advocate for the accused & hold that the. Special Judge was properly authorised to deal with the case.

[The judgment then dealt with the case against each of the accused on the facts.]