Jailal Sahu and Others vs Emperor

Brough, J.—These applications have been made by a number of persona sentenced under the powers purported to have been conferred by Ordinance 2 of 1942 (Special Criminal Courts Ordinance, 1942) who contend that notwithstanding Ordinance 19 of 1943 (Special Criminal Courts Repeal Ordinance, 1943) their detention is illegal and u/s 491, Criminal P.C., seek an order of this Court that they be set at liberty or brought to trial according to law. Ordinance 2 was promulgated on 2nd January 1942 by the Governor-General u/s 72 of Schedule 9 to the Government of India Act, 1935. The Ordinance, originally limited by Section 72 above to a period of six months, was extended by the India and Burma (Emergency Provisions) Act of 1940 and an Order in Council made thereunder and remained in force until repealed as hereinafter mentioned. The Ordinance was not complete in itself, it came into force (Section 1(3)) in any Province only on notification by the Provincial Government; that notification could be given originally only on the existence of an emergency arising from a hostile attack on India but by ordinance 42 of 1942 promulgated on 19th August 1942 the power was extended to cover an emergency arising from any disorder in the Province. The Provincial Government brought the Ordinance into force in this Province by Notification No. 90CC dated 21st August 1942. Even that notification was not enough to set the Special Courts to work trying cases, as the Ordinance also left it (Sections 5, 10 and 16) to the Provincial Government or a servant of the Crown empowered by the Provincial Government in that behalf to direct what cases or classes of cases the several Courts should have jurisdiction to try. Under these Sections various orders have been made directing the trial of cases by the several Special Courts set up by the Ordinance. It is by these Courts and under these orders that the various applicants have been tried.

The validity of the Ordinance was soon after it came into force challenged in this and other High Courts. There is no need to discuss the cases in detail. This Court decided in Banwari Gope v. Emperor AIR 1943 Pat. 18 that the Ordinance was not invalid and similar decisions were given by the Courts of Bombay See Emperor v. Shreekant AIR 1943 Bom. 169 and Allahabad See Salig Ram Vs. Emperor, . On 21st April 1943, however, the validity of the Ordinance having been challenged before it on grounds not taken before any other Court a Special Bench of the Calcutta High Court declared the Ordinance to be ineffective to confer jurisdiction on the Special Courts: Benoari Lal Sarma and Others Vs. Emperor, . That decision was carried on appeal to the Federal Court in AIR 1943 36 (Federal Court) which on 4th June 1943 dismissed the appeal. The effect of that decision was that all the trials which had been held throughout India under the powers thought to have been conferred by Ordinance 2 were found to have been without jurisdiction. Consequently on the next day 5th June 1943 the Government of India published Ordinance 19 of 1943.

The question for determination in these cases is simply what, if any is the legal effect of Ordinance 19. On 12th July 1943 while this case was being argued the Calcutta High Court gave a decision See Sushil Kumar Bose Vs. Emperor, on a similar point but no report of the judgment except those in the daily press was available up to the time the argument was concluded and the Court did not think it necessary or desirable to postpone the decision in these cases on that account. Ordinance 19 begins with the following preamble:

Whereas an emergency has arisen which makes it necessary to repeal the Special Criminal Courts Ordinance 1942 and to provide for certain matters in connexion with such repeal

and then follow five enacting Sections purporting to be made and promulgated by the Governor-General u/s 72 of Schedule 9, Government of India Act, 1935. Section 1 brings the Ordinance into effect at once: Section 2 repeals Ordinance 2 of 1942: Section 3 deals with cases the trial of which under ordinance 2 had been concluded: Section 4 declared all pending proceedings under ordinance 2 to be void and transferred them to the appropriate Magistrate for disposal according to the ordinary law: Section 5 granted an indemnity to servants of the Crown for acts done under powers purported to have been conferred by Ordinance 2. It is Section 3 which is material for the present cases and it reads as follows:

Confirmation and continuance, subject to appeal, of sentences.--(1) 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 by or 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 (5 of 1898), by a Sessions Judge, an Assistant Sessions Judge or a Magistrate of the First Class respectively, exercising competent jurisdiction under the said Code. (2) Notwithstanding anything contained in any other law, any such sentence as is referred to in Sub-section (1) shall, whether or not the proceedings in which the sentence was passed were submitted for review u/s 8, and whether or not the sentence was the subject of an appeal u/s 13 or Section 19 of the said Ordinance, be subject to such rights of appeal as would have accrued, and to such J powers of revision as would have been exercisable under the said Code if the sentence had at a trial so held been passed on the date of the commencement of this Ordinance. (3) Where any such sentence as aforesaid has been altered in the course of review or on appeal under the said Ordinance, the sentence as so altered shall for the purposes of this Section be deemed to have been passed by the Court which passed the original sentence.

As the decision of the Federal Court in AIR 1943 36 (Federal Court) was the effective cause of the promulgation of ordinance 19, so it will also be the most important factor in determining its validity. It will, therefore, be convenient at the outset to see what the Federal Court did and did not decide. It did not decide that the whole Ordinance was beyond the legislative powers of the Governor-General u/s 72, although the majority of the Court (Varadachariar C.J. and Zafrullah Khan J.) stated that the arguments on this point raised substantial and important questions. There being no decision of the Federal Court on this point it is so far as this Court is concerned concluded by the decision of the Special Bench in Benoari Lal Sarma and Others Vs. Emperor, . What the Federal Court decided as I understand the judgment of Varadachariar C.J. who delivered the judgment of the majority (Rowland J. dissented) was that it was only the executive orders made under Sections 5, 10 and 16 of the Ordinance that ousted the jurisdiction of the High Court and abrogated the operation of the Criminal Procedure Coda (particularly Sections 5, 28 and 29) and that such executive orders could not have such effect in law and that therefore Sections 5, 10 and 16 of the Ordinance were beyond the legislative powers of the Governor-General with the result that all trials purported to have been held under the Ordinance had been without jurisdiction. That judgment created a situation in which some action by the legislative authority was essential. Ordinance 19 makes provision for the trial of all future cases (including pending eases) under the ordinary law and for indemnity to Government servants for past acts; the propriety of these provisions has not been questioned.

The Advocate-General further contended that it had obviated the necessity of a retrial of every case the trial of which had already been concluded, while meeting the objections which had been raised in the course of the argument before the Federal Court owing to the deprivation of the right of appeal. It is argued however on behalf of the petitioners that the Ordinance has not succeeded in achieving this object for reasons which fall into three main classes; it is said first that legislation of this type is ultra vires, secondly that this particular legislation is ultra vires and thirdly that as a matter of construction this Ordinance is ineffective.

It will be convenient to deal with the last and narrowest point first. For this purpose it is to be assumed that the Ordinance is not open to objection on the ground that it or any material part of it is beyond the Legislative powers of the Governor-General. It appears that my view on this point differs from that which I understand found favour with the majority of the Calcutta High Court. I therefore express the opinion I have decidedly formed with some diffidence, although I derive some comfort in that on this point. I am, I think, in agreement with Sen J. I find Section 3 perfectly clear and but for the arguments which have been addressed to us and the decision of the Calcutta High Court I would have contented myself with saying that it means what it says. I will however try to elaborate though not I think to improve the language of the section: The sentence of a Special Court notwithstanding that it had no jurisdiction to pronounce it, shall have the same effect as an equivalent sentence passed by a competent Court at a trial held strictly in accordance with the provisions of the Criminal Procedure Code and shall continue to have such effect subject to the proviso that the sentence may be considered and affirmed, reduced, set aside or enhanced, on appeal or in revision by the same Courts and, on the same grounds, as if it had been passed by a competent Court at a trial held in strict accordance with the Criminal Procedure Code.

It is said that to give legal effect to the sentence alone without dealing with the trial and conviction is ineffective. As between the Crown and the prisoner it is the sentence and the sentence only that matters: the question is whether the Crown is entitled to hang, imprison or fine these petitioners as the case may be, or is it not? If the Ordinance does no more than give the Crown a right to bring those petitioners and others tried under ordinance 2 to trial under due process of law it does nothing. That right exists independently of these Ordinances in regard to any person who is properly chargeable with the commission of an offence. These trials were without jurisdiction so that no person tried at any of them could plead either his previous conviction or acquittal as bar to a future trial unless Section 3 of Ordinance 19 haw, as I think it has, given him a right to plead his sentence as a bar u/s 403, Criminal P.C., to future proceedings. I conclude therefore that Section 3 does give legal effect to the sentences subject to the right of appeal and liability to revision. It is then said that, although the sentence is legal, as the trial at which it was passed was not held in accordance with the Code of Criminal Procedure, as soon as it is brought before the appropriate Court in appeal or in revision it must be quashed. The point is a short one depending solely on the meaning of a dozen words in this Ordinance; the material words are

be subject to such rights of appeal...and to such power of re-vision...as if the sentence had been passed at the trial held in accordance with the Code of Criminal Procedure.

To my mind to hold that it is open to the appellant or petitioner to say on appeal or in revision that the trial was not in fact held in accordance with the provisions of the Code of Criminal Procedure and that therefore the sentence must be quashed is to give no effect to the last clause of the words I have just quoted. For all purposes, it must be assumed that the trial at which the sentence was notionally passed was held in accordance with the provisions of the Code. I certainly do not say the Court may not exercise its inherent jurisdiction to set aside a sentence if the prisoner is not shown to have had a fair trial, but technical objections that this or that Section of the Code have not been complied with cannot be entertained. Assuming the Ordinance to be in other respects valid, I do not conceive it to be the duty of this Court to give general directions for a retrial of the petitioners. Retrial would be a question for the Courts sitting in appeal or revision after consideration of the merits of each case as I do not think a retrial should be ordered merely because the Special Courts did not conform to the Code of Criminal Procedure, so that the sentences are not based on a legal conviction.

In this connexion a special objection was raised by Mr. Awadhesh Nandan Sahay in Criminal Miscellaneous Cases Nos. 81, 82, 83, 86 and 101 of 1943. The petitioners in these cases had been sentenced to death and Mr. Sahay contended that their case was not covered by Section 3 of ordinance 19 and therefore there was no course open to the Court but to make an order u/s 491(a) of the Code, directing them to be brought to trial according to law. Section 3 provides that the sentence of death is to have effect as if it had been passed by a Sessions Judge at a trial held in accordance with the Code. By virtue of Sections 31(2) and 374 such a sentence so passed is of no effect until confirmed by the High Court. Section 3 makes no reference to confirmation, it might perhaps have been better if it had, but I do not think the omission is material. An appeal or application in revision does not follow automatically from a sentence, and therefore the right to appeal and the liability to review had to be expressly conferred. But under the Code what is generally known as a "death reference" follows automatically on the passing of a death sentence by a Sessions Judge. I see no reason why the same consequence should not follow from the sentences which are to have effect as if they had been so passed by a Sessions Judge. It is objected that there is no one to make the reference as the Special Judge has ceased to exist, but the Code does not lay down who is to submit the proceedings to the Court and I see no reason why the proceedings should not be submitted by the person who happens to have custody of them. I therefore hold that, if it legally can, the Section does have the effect contended for by the Advocate-General.

It is convenient at this point to deal with two points outside the main line of argument. Mr. Chakraberty, whom we permitted to address the Court although the case in which he had been instructed had been withdrawn, submitted that Section 3(1) of Ordinance 19 was repugnant to Section 2 (the repealing section.) I can see nothing in that point. In the first place, Section 2 is really only a gesture of courtesy to the Federal Court as after their decision there was nothing elective to repeal and secondly, the Ordinance was purely procedural and the repeal of procedural statute cannot affect matters concluded at the date of the repeal. All that Section 3(1) required was that the sentences referred to should be ascertainable, and that they clearly are. Mr. M.N. Pal argued that Ordinance 19 did not apply to "pending case" by which he meant cases in which the sentenced person had filed an application u/s 491 which had not been disposed of by 5th June 1943. He did not apparently include persons who had filed such applications which had been, as is now known, wrongly dismissed by various High courts who had not the advantage of the argument addressed to their brethren in Fort William. The Ordinance is retrospective or nothing; its terms are to my mind precise on this point: "Any sentence passed," I see no reason to exclude the case of persons who had filed applications u/s 491. It remains to consider the more important and difficult point of the constitutional validity of the Ordinance. The division of the objections into general and particular is perhaps not strictly scientific but it is sufficiently accurate to be useful. The general objections are based on Sections 210 and 212 and on Section 292, Government of India Act, 1935.

First it is said that the decision of the Federal Court in AIR 1943 36 (Federal Court) is an absolute bar to legislation by any legislative authority in India on the same subject. That proposition is too wide. The true proposition is that a decision of the Federal Court in a constitutional matter (not being a question of conflict between different Legislatures) having been given on certain premises no Legislature can enact legislation which will affect the validity of the premises but if the same or similar results can be reached by legislation the validity of which depends on different premises the previous decision will be no bar. In other words, a Legislature may, if it can, get round the decision but may not override it. This objection therefore on examination proves to be a particular objection and not a general one and I will return to it in due course.

Secondly, it is said that as Section 3 of Ordinance 19 is repugnant to the Code of Criminal Procedure and does not alter, repeal or amend it in express terms, it is therefore invalid by virtue of Section 292, Government of e India Act, 1935. No authority was quoted to support that proposition and I can find no warrant for it. Ordinance 2 attempted not a general repeal of the Code but to make it inapplicable to certain cases, and the intention of Ordinance 19 is the same. All that could have been done therefore would have been to insert some such words as "Notwithstanding anything in the Code of Criminal Procedure." I am not prepared unless constrained by authority and none has been referred to, to hold the insertion of these words essential, if the meaning of the enactment is clear without them. It is true these words were used in the United Provinces Regulation of Remissions of Rent Act, 1938, which was considered by the Federal Court in AIR 1941 16 (Federal Court) but the Court gave no indication that they were essential to the validity of the Act. It was admitted that had the Code been an enactment passed after the coming into force of the Government of India Act, 1935, this argument would have been untenable. The argument is based only on Section 292. But that Section is only providing in terms for the continuance of the law in force before the Act, and making applicable to it the principles which will apply automatically to all law made after the Act and I must hold that pre-Act law can be modified by repugnancy just as post-Act law can be.

It was faintly argued that the Governor-General u/s 72 of Schedule 9 had no power to repeal, or modify any existing law. If that were so, Section 72 would be practically useless because the field of human experience is nowadays so well covered by legislation that it is almost impossible to devise a new law which does not to some extent cover the same ground as an existing one. In my opinion, however, that contention is contrary to the plain words of the Act which says that an Ordinance u/s 72 "shall have...the like force of law as an Act passed by the Indian Legislature." The Indian Legislature may by Act repeal or modify an existing law and therefore the result of Section 72 is that the Governor. General may by Ordinance do the same. This view is in accordance with what I understand to be the view of the Federal Court in AIR 1943 36 (Federal Court) , although the point did not actually arise having regard to the decision on another point and is that adopted by the Special Bench of this Court in Banwari Gope v. Emperor AIR 1943 Pat. 18. I hold therefore what I have called the general objections to the validity of the Ordinance to fail.

Finally I turn to consider the particular objections to this piece of legislation. It is to be borne in mind that the pronouncement of the Privy Council in Queen v. Burah (1878) 3 A.C. 889 that within their own sphere the powers of the Indian Legislature are as large and ample as those of Parliament itself is still good law notwithstanding the Government of India Act 1935 and the burden of shewing the existence of some restriction is on those who assert it, this was laid down in AIR 1941 16 (Federal Court) which decided there was no objection to retrospective legislations per se. The true effect of Section 3 (which is the only one material) is, as I have already held, to direct the execution of sentences and provide for appeal and review in an ascertainable number of specific cases which were determined in good faith but in fact without jurisdiction under the ordinary rules of substantive law and evidence though not of procedure by persons who were selected from among the officers ordinarily exercising judicial functions in criminal matters. It is said to be invalidly enacted on a number of grounds which are substantially distinct.

First it is said that u/s 72 the legislative powers only arise on the existence of an emergency and that there was no emergency. The Governor-General whose words I have already quoted has declared that an emergency has arisen necessitating the ordinance. In my opinion, in face of that declaration, the decision of the Privy Council in AIR 1931 111 (Privy Council) precludes this Court from either enquiring whether an emergency exists or whether the Ordinance is conducive to the peace and good Government of British India and apt to meet the emergency.

Secondly it is said the legislation was I merely a colourable device to flout the decision of the Federal Court and therefore void on the analogy of the order of the Punjab Government considered in Lahore Electrict Supply Co. Ltd. v. Punjab Government AIR 1943 Lah. 41. This argument too seems to me untenable. The Ordinance goes a long way to meet the criticisms made on Ordinance 2 of 1942. It makes no attempt to perpetuate the special Courts as it would appear it could have done by suitable provisions and as to the past it restores the jurisdiction of the High Court e the absence of which formed the principal, though not the only, ground of complaint against the system set up by Ordinance 2. It seems to me impossible to say it is merely a colourable device.

Thirdly it is said the subject-matter of the Ordinance is not within the powers of the Federal Legislature u/s 100, Government of India Act, 1935 and therefore not within the legislative powers of the Governor-General u/s 72 of Schedule 9. In other words, that the subject-matter of the Ordinance is not comprised in any one of the three lists in Schedule 7. This objection was pert haps the most strongly urged and at the same time the most unreal of all objections put forward. It is admitted that a proclamation u/s 102 having been made all three lists are equally now the field of the Federal Legislature and that if any subject-matter is omitted from the totality of the three lists the Governor-General may u/s 104 bring it in and allot it to a list. If therefore the subject-matter of this Ordinance is not to be found in Schedule 7 the Governor-General can in the exercise of his discretion put it there and it will make no difference for this purpose which of the three lists he selects.

In my opinion however it is covered by the item Criminal Procedure (item 2 in List III). Ordinance II of 1942 was clearly "Criminal Procedure." It was argued by Mr. Baldeva Sahai for certain petitioners that as the procedure under which the sentences were passed was invalid the execution of such sentences is not a matter of Criminal Procedure. If the trials had been valid, execution of sentences is clearly a matter of "Criminal Procedure" as it is the subject-matter of one of the chapters of the Code of Criminal Procedure. I do not think the expression can be so narrowly construed as is contended. I see a very real and important difference between a sentence passed by mere executive act and one passed after an investigation before an officer purporting to exercise judicial functions and to decide judicially. This Court has only to decide on the circumstances of the case before it; howsoever difficult it is to draw an exact line between two opposites it is often not so difficult to determine which side of the line a particular case falls. In my judgment the giving of directions as to the execution of these sentences and the hearing of appeals and revision applications arising out of them is a matter of Criminal Procedure.

The Advocate-General further contended that in any case the Governor-General''s powers u/s 72 of Schedule 9 are not limited by Section 100 of the Act. He referred to the history of the Section starting with the East India Council Act of 1861 and the Government of India Act, 1915 and the amendment to that Act made in 1919. Under the 1915 and 1919 Acts, the "restrictions" referred to in Section 72 of that Act appear to have been limited to those imposed by Section 65(2) and (3). These restrictions are in part repeated in Section 110(b), Government of India Act, 1935 (Section 65 of the earlier Act not being one of those continued.) The 1935 Act however clearly imposes new restrictions beyond those of Section 110(b) for instance Section 112. The power of the Indian Legislature by reference to which the "restrictions" referred to in Section 72 of Schedule 9 are imposed is given by reference to the power of the Federal Legislature (Section 316). The restrictions on the power of Federal Legislature are wider than those on that of the Indian Legislature under the repealed Act. These restrictions in my view include Section 112 and equally any other Section in fact constituting a restriction. Among these I must include Section 100. I might add that in all the cases in which the validity of Ordinance 2 has been challenged this point has been assumed although it never became necessary to decide it.

Fourthly, it is said that it is a cardinal feature of the Indian constitution that the legislative and judicial functions should be distinct and accordingly that the Legislature cannot act as a judge. For the purposes of this case, I would accept this proposition which I am inclined to think is correct. In my view, however, to direct the execution of a sentence determined after investigation by another person is not to exercise judicial functions. The question to be determined by the Governor-General in his legislative capacity was whether having due regard to the peace and good government of the country the totality of the investigations which had taken place were so contrary to the principles of justice that even with rights of appeal and liability to revision, it would be inexpedient to use them as a basis for the subsequent execution of sentences. I cannot see how that can be described as the exercise of judicial function. The Ordinance, in my opinion, gives legislative force to an executive act which is a proper exercise of legislative functions.

Lastly, it is said that this Ordinance is invalid by virtue of the decision of the Federal Court in AIR 1943 36 (Federal Court) . This, I think, is the crucial point. The principles which I endeavoured to enunciate in an earlier part of this judgment are clear enough--it is the application of them to the particular case which gives rise to the difficulty. As I understand the judgment of the Federal Court, it was the delegation of the power to bring the Ordinance into effective operation in particular cases which was objectionable. The practical effect of ordinance 19 is that the legislative authority ratifies the invalid acts of the officers of the Crown. Ratification is a familiar legal conception and of course, it is not possible to ratify an act which is ultra vires of the ratifying body. If authority is needed 1 would refer to Ashbury Railway Carriage and Iron Co. v. Riche (1875) 7 H.L. 653. But the Federal Court did not decide that it was ulrta vires to set up Special Courts and give them jurisdiction. It was the method of giving them jurisdiction which was ultra vires. I see no reason there, fore why if it can avoid the error of method the Legislature cannot ratify the invalid acts. The legislative authority has in this case applied its own mind, to the cases covered by the new Ordinance which are specific ascertainable cases.

Therefore, in my opinion, the ratification is effective and the hew Ordinance is not made invalid by the decision of the Federal Court on the old a one. I might observe that the contrary view of Sen J., is based on the assumption that the whole of ordinance 2 is invalid. As I have already stated, I am bound by the decision in Banwari Gope v. Emperor AIR 1943 Pat. 18 to hold the contrary. Sen J.''s views do not therefore help me.

Much argument was addressed to us about the words, trial, conviction and sentence. This is not a question of words. I do not think either that by verbal dexterity the difficulties of ultra vires have been avoided or that from verbal infelicities nothing effective has been achieved. Having given the matter the best consideration I can, I am of h opinion, that the substance of the Ordinance that is to say, the execution of the sentences passed by the Special Courts, subject to such modification as may be made on the merits on appeal or in review, has been expressed with sufficient clarity to take effect and is not ultra vires.

I would, therefore, dismiss these applications. A certificate is granted u/s 205, Government of India Act, 1935, so that the petitioners or any of them who so desire may appeal to the Federal Court.

Sinha, J.

I agree.