In Re: Aliar Singh and Others

Beevor, J.—There are nine appellants before us and these nine were tried together with one Gayatri Chowbey, who has filed no appeal. All ten of them were convicted under Rule 35(4) of the Defence of India Rules and each of them was sentenced to five years'' rigorous imprisonment and a fine of Rs. 50 or in default a further six months'' rigorous imprisonment. Criminal Appeal No. 283 has been presented on behalf of three persons Aliar Singh, Ramcharitar Ahir and Sattar Mian; and Appeal No. 407 is on behalf of six persons Dinesh Dutt Pandey, Palku Tewari, Govind Lohar, Sitaram Lohar, Nanhku Bari and Subhag Bari. Appeal No. 897 was filed from jail on behalf of Palku Tewari and Appeal No. 882 also from jail, on behalf of Govind Lohar and Sitaram Lohar. These persons were convicted on a charge of having on 16th August 1942, at Durgauti railway station, uprooted and removed rails in front of the railway station.

No report of this occurrence was made to the police at once and no case was started until 3lst August 1942 when the Sub-Inspector of Police obtained a report from Khaderu Sah (p.W.1), a watchman of the railway, for whom the Sub-Inspector had himself sent, on receipt of instructions from his superior officers to investigate sabotage at Durgauti railway station. The fact that an occurrence of the nature alleged on behalf of the prosecution actually took place has not been challenged on behalf of any of the appellants. But it has been urged that there is no reliable evidence to prove that any of them took part; and also it has been urged that the trial of these appellants before a Special Magistrate under the provisions of the Special Criminal Courts Ordinance, 1942, was illegal. I will deal, first, with the question of the legality of the trial. The order-sheet shows that on 15th September 1942 a charge-sheet was received under Rule 35(4) of the Defence of India Rules against nine persons, and on the next day an order was passed by the Sub-divisional Magistrate, which runs as follows:

A case under Rule 35, D.I. Rules. Record submitted to District Magistrate for favour of taking cognizance under Special Criminal Courts Ordinance 2 of 1942.

Then follows the order of the District Magistrate dated 18th September 1942 running as follows: "Cognizance taken and transferred to Mr. R. Prasad, Special Magistrate, Bhabhua for favour of disposal." It is urged first, by Mr. Mehdi Imam on behalf of the appellants that the appellants had on 18th September 1942 a vested right, namely, rights to be tried by the ordinary Courts under the Criminal Procedure Code and, that, therefore, the District Magistrate could not then transfer the case to a Special Magistrate for trial. He has referred to the decision of a Pull Bench of this Court in Gopal Marwari and Others Vs. Emperor, in which the question of the applicability of the Special Criminal Courts Ordinance, 1942, to cases in which proceedings had already started before that Ordinance came into force, was considered. Mr. Mehdi Imam conceded that the point actually decided in that ease is not applicable to the facts of the present case. The Special Criminal Courts Ordinance, 1942, came into force in this province on 21st August 1942. There were, therefore, no proceedings in connexion with the present case pending on that date.

It was suggested and argued by Mr. Mehdi Imam that, on the same principle, if proceedings; have once started in the ordinary Courts established under the Criminal Procedure Code, the persons accused in those proceedings acquired vested rights and cannot thereafter be tried by Special Courts under the Special Criminal Courts Ordinance, 1942. I do not think that this analogy is valid. On 18th September 1942, the date of the District Magistrate''s order in the present case, there were in existence in this province two different forms of Courts, those under the Criminal Procedure Code and those under the Special Criminal Courts Ordinance, 1942, and no person coming before the Courts on that date had any vested right to be tried in one class of Court rather than the other. It is not disputed that the District Magistrate was the person empowered u/s 10 of the Special Criminal Courts Ordinance, 1942, to give directions as to the offences or classes of offences to be tried by Special Magistrates. In this case we have not to consider any general order passed under that section, because it is quite clear that the District Magistrate''s order dated 18th September 1942 was a special order directing the trial of this particular case by : Mr. E. Prasad, Special Magistrate at Bhabhua.

A further argument has, however, been raised by Mr. Mehdi Imam with reference to the terms of Ordinance 19 of 1943. Section 3 of that Ordinance runs as follows:

Any sentence passed by a Special Judge, a Special Magistrate or a Summary Court in exercise of jurisdiction conferred or purporting to have been conferred under the said Ordinance shall have effect, and subject to the succeeding provisions of this section, shall continue to have effect, as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure, 1898, by a Sessions Judge, an Assistant Sessions Judge or a Magistrate of the first class respectively, exercising competent g jurisdiction under the said Code.

He has pointed out that Rule 130(3), Defence of India Rules, proscribes that:

Notwithstanding anything contained in Schedule 2, Criminal. P.C., 1898, a contravention of certain rules, including Rule 35, shall be triable by a Court of Session, a Presidency Magistrate or a Magistrate of the first class.

He has urged that the provisions of Ordinance 19 in Section 3, which I have just quoted, refer to the procedure under the Criminal Procedure Code, but do not refer to any procedure under the Defence of India Rules, and he, therefore, contended that Ordinance 19 would not validate any trial which had been held by virtue of the provisions of Rule 130, Defence of India Rules. He correctly pointed out that in the absence of Rule 130, an offence under Rule 85 would not have been triable by a Magistrate. I do not, however, think that this contention is valid. The reference to procedure in Section 3 of Ordinance 19 appears to me to have no reference to the provisions of law, wherever contained, which lay down the particular Courts by which offences are to be tried, but refer only to the procedure adopted at the trial.

On behalf of the appellants in Appeal No. 407, one further point of law was urged, namely, that under the Penalties (Enhancement) Ordinance, 1942 (No. 3 of 1942), in Section 3 it was directed that whoever contravenes any of the provisions of R. 35, Defence of India Rules may be punished with death. It is pointed out that u/s 10, Special Criminal Courts Ordinance, 1942,

a Special Magistrate shall try such offence 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 Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct.

Mr. Chakravarty, on behalf of these appellants, urged that at the time the Special Criminal Courts Ordinance 2 of 1942 was passed, offences under Rule 35, Defence of India Rules, were not punishable with death and that no offence at that date was actually punishable with death, except those made so punishable under the Penal Code. He, therefore, contended that we should interpret Section 10, Special Criminal Courts Ordinance, 1942, as preventing Special Magistrates from trying any offence punishable with death. To this contention there are two answers : first that it is not open to us to read into Section 10, after the words "Indian Penal Code," some other words such as "or'' under the Defence of India Rules;" the second answer is contained in Section 8, Penalties (Enhancement) Ordinance, 1942 itself, in which it is laid down that:

Notwithstanding anything elsewhere contained in any Act, Regulation or Ordinance, an offence made punishable with death by this ordinance, shall not, by reason of having been made so punishable, cease to be triable by any Court which might have tried the offence had it not been made so punishable.

I am satisfied, therefore, that there was no bar to the trial of the present case by the Special Magistrate under the Special Criminal Courts Ordinance, 1942. (His Lordship then considered individual cases on merits and proceeded.) Apart from the appellants, there is Gayatri Chowbey who was convicted with the appellants but has not appealed, against whom there was the evidence of only one witness, the station-master (p.W.3), and If do not consider that the evidence of this one witness by itself is sufficient to justify his conviction. Therefore, in his case, I would exercise our revisional jurisdiction and set aside his conviction and sentence and acquit him of the charge under Rule 35(4), Defence of India Rules.

While dealing with the case of appellant Sitaram Lohar, I mentioned that the evidence of the station-master (p. W. 3) showed that he knew this appellant before, and I had intended to mention that his evidence on this point is corroborated by the statement of Sitaram Lohar himself, because in his statement Sitaram Lohar alleged that he had had some quarrel with the station-master, though his statement about such a quarrel was not supported by evidence.

Summarising the conclusions, therefore, the appeals of Aliar Singh, Rameharitar Ahir and Govind Lohar are allowed, their convictions and sentences are set aside and they are acquitted. The conviction and sentence of Gayatri Chowbey is set aside and he also is acquitted. The remaining appellants have all been rightly convicted under Rule 35(4), Defence of India Rules. The occurrence was a serious one, and I do not see any reason to interfere with the sentences passed on any of the appellants except Nanhku Bari, who is a youth aged about 17. It is not shown that Nanhku Bari took any leading part in the occurrence. I would hope that the sentence that he has already suffered would be sufficient to make him realize the gravity of such offences, and I would, therefore, reduce his sentence to the period of imprisonment already undergone and set aside the sentence of fine imposed on him. The sentences passed on the other appellants whose convictions have been maintained, will remain intact.

Further directions, if necessary, in the case of appellant Dinesh Dutta Pandey will be passed later on.

Yarma J.

I agree.