Lt. Hector Thomas Huntlay vs Emperor

Agarwala, J.—The petitioner, who was station master at Jamalpur on the East Indian Railway has been convicted of an offence u/s 161, Penal Code, by a Special Tribunal constituted under ordinance 29 of 1943, and sentenced to 18 months'' rigorous imprisonment and to pay a fine of Rs. 500, or in default, to a further period of six months'' rigorous imprisonment. There is no right of appeal against the conviction of a person tried by a Tribunal constituted under the Ordinance, but such a person has a right to apply to this Court in its revisional jurisdiction. It is the practice of this Court not to interfere with the decision of a subordinate Court in the exercise of Revisional jurisdiction unless through some defect in procedure the accused has been deprived of the right of a fair trial, or the decision of the Court is vitiated by reason of some mistake of law.

The facts are that one Mohurram Ali, p. W. 1, represented to the petitioner that he desired to despatch two wagon loads of sheep and goats by rail from Jamalpur to Bally, and requested the accused to place the necessary wagons at his disposal. Interviews between Mohurram and the petitioner took place on 22nd and 24th May 1943. On the latter date the petitioner is said to have made a pretence of telephoning to Howrah to enquire if wagons were available, and then to have informed the petitioner that the wagons would be available if he returned at 4 p. M. on the 26th with the necessary application forms filled in and with the sum of Rs. 20. According to the case for the prosecution the Rs. 20 was an illegal gratification demanded as a consideration for obtaining the wagons which Mohurram Ali required. It may be mentioned that on behalf of the defence it has been suggested that Mohurram Ali was not a person genuinely intending to despatch live-stock by rail, but merely an agent provocateur. However that may be, Inspector Lahiri of the Special Staff of the War Department of the Government of India received information, as a result of which he decided to lay a trap for the petitioner, and having obtained the permission of the Sub-divisional Officer of Monghyr to investigate the case u/s 155(2), Criminal P.C., he proceeded with the Sub-divisional Office to Jamalpur. The Inspector initialled two currency notes of the denomination of Rs. 10 each, in the presence of the Sub-divisional Officer and handed them to Mohurram Ali. At 4 P. M. on the 26th Mohurram Ali entered the petitioner''s office at Jamalpur Railway Station. The Sub-divisional Officer and the Inspector remained outside. Mohurram Ali deposed that on entering the petitioner''s office, he handed the application forms (Exs. 1 and 2) to the petitioner, who then said: "First pay me my twenty rupees." Thereupon, Mohurram Ali handed over the two currency notes which the Inspector had initialled, and the accused put them in a bag which he had in his pocket, and then returned to Mohurram Ali the two forms together with another slip (EX. 3). Mohurram Ali was directed to ''hand these papers to the goods clerk and to tell him that the sheep and goats were being sent on military account. Mohurram Ali emerged from the petitioner''s office and signalled to the Sub-divisional Officer and Inspector that the currency notes had been handed over to the petitioner. These two officers then entered the petitioner''s office and asked him if he had received any money from the man who just left his office. The petitioner at first denied this, but when informed that his person would be searched he produced the bag containing the two currency notes which had been initialled by the Inspector and given to Mohurram Ali. Afterwards the petitioner informed theSub-divisional Officer that these two notes had been given to him on account of demurrage.

At the relevant time the booking of wagons was controlled by the Divisional Superintendent, whose office is at Howrah. His Assistant Captain Sackett, p. w. 2, was examined as a witness in the case. He states that on 26th May he received from the accused a written requisition, dated the 24th (Ex. 4) for two wagons to be loaded with sheep and goats to be sent to Bally. One wagon was in fact allotted for this purpose; and the witness produced a telegraphic copy of the intimation to this effect sent to the petitioner on the afternoon of the 26th. He also stated that the petitioner was not entitled to demand any money on account of demurrage, the liability for which had not actually been incurred, as no question of demurrage could arise unless the consignor failed to complete the loading of the wagon placed at at his disposal within nine hours of the time that the wagon was placed in position for loading. Also, the petitioner was not entitled to represent that the booking of the sheep and goats to Bally was on military account, unless the consignor was able to produce a military credit note. The general assistant in the goods department of the Jamalpur station was examined as P. W. 3. He deposed that he detained a wagon on 24th May under instructions from the petitioner, although he had not received any forwarding note, and that, if he had been given the slip, Ex. 3, which the petitioner gave to Mohurram Ali on the afternoon of the 26th he would have required the consignor to fill in a separate application stating that the sheep and goats were to be booked on military account. As a matter of fact, the Sub-divisional Officer took possession of Exs. 1, 2 and 3 in the station master''s office at about 4 P. M. on the 26th, and they never reached the goods department at all.

After the case for the prosecution had been closed the petitioner was questioned u/s 342, Criminal P.C. He then stated that permission had bean obtained by telephone, on the 24th, for a wagon to be placed at Mohurram Ali''s disposal. A date was fixed for the cross-examination of Captain Sackett. On this date the prosecution asked permission to put further questions to the witness regarding the alleged telephone communication from the petitioner about which the petitioner had spoken as having taken place on the 24th. This alleged telephone communication was of great importance in this case, because, while on the one hand the petitioner''s case is that he in fact telephoned to the Control Office at Howrah for the allotment of two wagons for Mohurram Ali and obtained permission to allot a wagon, the prosecution case is that he did not and could not have done so. When questioned about this Captain Sackett stated that there could not have been any telephone communication between the petitioner and the Control Office at Howrah because the telephone system was suspended on 24th May. In support of this statement he produced the control chart which is maintained in the Divisional Superintendent''s office at Howrah and which showed that the telephone system beyond Rampurhat had been suspended. He was also questioned regarding the requisition (Ex. 4) dated 24th May which had been received from Jamalpur on 26th May. There is an endorsement on this requisition: "Allotted on 24th May 1943, nil." This endorsement is dated 1st June 1943. The witness was not questioned as to the reason why this entry was made on that date. After this further evidence had been given by Captain Sackett; the accused was again questioned u/s 342 of the Code. He maintained that even if the control telephone was out of order on the 24th he could nevertheless make himself heard by the Divisional Superintendent''s Office at Howrah and that he was in fact allotted a wagon on 24th May. He suggested that a goods shed clerk, whom he was prosecuting for theft at Monghyr, had caused this case to be engineered against him and that the charge preferred against him was false. He relied on the fact that for 32 years he had served the railway with a clean record. The defence relied upon entries in certain railway books.

Exhibit A (1) is an entry in the Placing Wagon Register of Jamalpur station showing that wagon BA 1022 was detained for sheep loading on 24th May. The general assistant in the goods department at Jamalpur station was questioned about this entry and stated that it was in the handwriting of a goods shed clerk named Dutt. Dutt has not been examined to explain this entry. Exhibit B (1) is an entry in the goods cash book of Jamal-pur station showing that 24 hours'' demurrage was incurred on wagon B A 1022. The actual entry is "Placed at 7 hours on 24-3-1943 till 17 hours on 26th March 1943 for sheep loading demurrage 48 hours.... Rs. 24." The general assistant in the goods department deposed that this entry is in the hand-writing of a goods clerk named Ganguly. The latter was not called to explain it. It will be noticed that it refers to the month of March and not to the month of May. It is followed by an entry dated 27th May which has been scored through.

It has been contended that the re-examination of Captain Sackett regarding the possibility of telephoning to Howrah on 24th May and the omission of the prosecution to examine Dutt and Ganguly have resulted in the accused not having had a fair trial. In this Court a petition has been filed with a number of annexures with a prayer that the latter be kept with the record of the case. One of the annexures is an affidavit by the Assistant Block Signal Inspector, Jamalpur, stating that in case of possible faults in the telephone system it is possible to get the Howrah Test Boom and the Controller through the block fitter testing the line. Another annexure is an affidavit by the telephone clerk who was on duty at the Jamalpur station on 24th May and states that the petitioner directed him to call the Deputy Controller, Howrah and when the call was put through, he heard the petitioner ask permission to allot two wagons to a merchant who was despatching livestock to Bally on military account and that permission was given. The third annexure is an affidavit by the Government Telegraph Control and Telephone linesman in charge of the section between Jamalpur and Howrah, and states that the control telephone and telegraph wires were in working order on the 24th. The fourth annexure is an affidavit by the goods shed clerk at Jamalpur, Amarendra Nath Dutt, and states that he was directed by the petitioner to detain two wagons for live-stock on the 24th and that he made the entry to which reference has already been made in the goods wagons placing register. The fifth annexure is a copy of an enquiry slip from the Chief Accountants office at Benares, referring to an item of 26th May 1943 and enquiring by whom a sum of Rupees 24 due for demurrage had been foregone. The last annexure is an affidavit by the goods clerk at Jamalpur goods shed relating to Ex. B (1).

It is suggested that it was the duty of the prosecution to call all these witnesses, and that their omission to do so has prejudiced the petitioner. As the Special Tribunal has pointed out, even if it be assumed that the petitioner did direct a wagon to be placed in position for the loading of live-stock on 24th May, he had no authority to do so (unless, of course, he had received authority over the telephone as he alleges) and, therefore, there was no justification for demanding from Mohurram Ali any money on account of demurrage. Furthermore, the sum of Rs. 20 does not represent any precise amount which Mohurram Ali could possibly have incurred on account of demurrage at the time the demand was marie and the money paid. Added to this are the further facts that no receipt was given to Mohurram Ali, and the two notes which he handed to the petitioner were immediately placed by the latter in a bag in his own pocket. The Special Tribunal found no reason to disbelieve Captain Sackett, who is definite that no wagon was allotted, at the request of the petitioner on the 24th. The witnesses whose affidavits have been produced in this Court could not have affected the result of the trial. The only one whose statement definitely contradicts Captain Sackett is the telephone clerk who states in his affidavit that permission for allotment of the wagons was given on the 24th. How he knew this is not explained. Presumably it was the petitioner and not the deponent who was at the Jamalpur end of the telephone when the conversation between the petitioner and the Control Office at Howrah is alleged to have taken place.

As to the alleged prejudice to the petitioner occasioned by reason of the re-examination of Captain Sackett in regard to the telephone communication, on the 24th, the accused did not disclose his defence until he was examined u/s 342 when he made a statement that he had obtained sanction for the allotment of a wagon over the telephone. The tribunal, in my opinion, acted rightly in permitting Captain Sackett to be questioned for the purpose of rebutting this statement. It has been contended, however, that the petitioner''s statement in the course of his examination did not take the prosecution by surprise because Mohurram himself had already referred to the petitioner having telephoned on the 24th. Mohurram Ali, however, does not say that the petitioner telephoned to the Control Office at Howrah, nor of course, was he in a position to know to whom the petitioner telephoned, if to any one. I am not prepared to hold that the alleged defects in the procedure of the Court below have resulted in the accused not having had a fair trial, or that the decision of the Special Tribunal is vitiated by any error in law.

In this Court the decision of the special tribunal has been challenged on the ground of want of jurisdiction. It has first been contended that Ordinance 29 of 1948, under which the petitioner was tried, is ultra vires the Governor-General. That Ordinance purports to have been made by the Governor. General in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9 to that Act. Section 72 of Schedule 9 empowers the Governor-General, in cases of emergency, to make and promulgate Ordinances for the peace and good government of British India or any part thereof. Ordinance 29 recites that, whereas an emergency has arisen which makes it necessary to provide for the more speedy trial and more effective punishment of certain offences punishable under the Penal Code, the Governor-General, in exercise of the powers conferred by Section 72 of Schedule 9, makes and promulgates the Ordinance. Section 3 empowers the Central Government to constitute for the purposes of the Ordinance two Special Tribunals, one to sit at Calcutta and the other at Lahore. The jurisdiction of the Special Tribunals is defined in S. 5, which provides that they shall have jurisdiction to try the cases respectively tllotted to them in Schedule 1 in respect of such of the charges for the offences specified in Schedule 2 as may be preferred against the several accused. Schedule 1 is divided into two parts, the first of which contains a list of 14 oases to be tried by the Special Tribunal which sits at Calcutta, and the second part of which contains a list of 20 cases to be tried by the Special Tribunal with head-quarters at Lahore. The names of the persons to be tried are set out in the schedule, and against each case is mentioned the section or sections of the Penal Code under which the charges against the accused are punisha able. The case against the petitioner is the sixth case mentioned in the first part of Schedule 1, and the section of the Penal Code mentioned against his name is Section 161. The offences triable by the Special Tribunal are enumerated in Schedule 2 and include offences under Sections 161, 405, 406, 409, 417 and 420, Penal Code, (when committed by certain persons under certain circumstances) and any conspiracy to commit or any attempt to commit or any abetment of any of these offences.

The offence alleged to have been committed by the petitioner u/s 161, Penal Code, was on 26th May 1943 but no complaint was made in respect of this offence until 25th October 1943. The Ordinance was promulgated on 11th September 1943. It was contended that the interval of time between 26th May 1943 and 11th September'' 1943 shows that so far as the petitioner''s case is concerned, there was no emergency justifying the making of the Ordinance. That however is a matter falling entirely within the province of the Governor-General, and is not open for examination by this Court.

As I understand the petitioner''s next contention that the Ordinance is ultra vires, it is founded on the words "as may be preferred" in Section 5(1). It is suggested that these words indicate that the question whether the persons mentioned in Schedule 4 were to be actually prosecuted had not been determined by the Governor-General at the time the Ordinance Was made and promulgated but (i) was left open for future consideration and (ii) was to be decided by some undesignated authority or person other than the Governor-General. It was contended that if the first branch of this argument were accepted, it followed that the words referred to contradicted the declaration in the preamble that an emergency had arisen justifying the use of the Governor-General''s Ordinance-making powers, and reference was made to the decision of Sen J. in Benoari Lal Sarma and Others Vs. Emperor, , AIR 1943 36 (Federal Court) and to Sushil Kumar Bose Vs. Emperor, , AIR 1943 75 (Federal Court) . "Sen J. was considering the language of Ordinance 2 of 1942, which was also made and promulgated by the Governor-General in exercise of powers conferred by Section 72 of Schedule 9, Government of India Act. The preamble to that Ordinance, like the preamble to Ordinance 29 of 1943, recited that an emergency had arisen. But Sub-section (3) of Section 1 declared that the Ordinance should come into force in any province only if the Provincial Government was satisfied of the existence of an emergency. Sen J. took the view that Sub-section (3) of Section 1 showed that the Governor. General was not satisfied that an emergency had in fact arisen justifying the exercise of his powers u/s 72 of Schedule 9. The case was taken to the Federal Court, the learned Judges of which, while observing that the question raised by Sen J. was a substantial one, did not find it necessary to express an opinion with regard to it. There is no real analogy between the provisions of the two Ordinances in this respect. Ordinance 29 of 1943 declares that an emergency has arisen and definitely provides for the prosecution of the persons mentioned in Schedule 1 in respect of such of the offences enumerated in Schedule 2 as they may be charged with. The true import of the words ''may be charged with'' in their context appears from Section 6. This section prescribes the procedure to be followed by the Special Tribunals, viz., the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates. This procedure is described in chap. 21 of the Code. First the Magistrate is required to hear the evidence produced by the prosecution (Section 252). If this evidence does not make out a prima facie case against the accused he is to be discharged (Section 253), but if the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under chap. 21 and within his competence to try, he is to frame a charge against the accused (Section 254). It is only when a charge has been so framed and explained to the accused that he is to be called upon to plead and to adduce evidence in his defence (Section 255). When read with these provisions of the Code the words ''as may be preferred'' in Section 5 of the Ordinance clearly do not mean what the petitioner suggests that they mean, namely, the initiation of proceedings against the persons mentioned in Schedule 1 was a matter which the Governor. General, left to be decided in future. What the Ordinance contemplates is that proceedings shall be initiated against the persons mentioned in Schedule 1, and if the prosecution evidence establishes a prima facie case against the accused in respect of certain specified offences he is to be charged accordingly. Similarly, with regard to the second branch of the argument, the answer is the same. The Governor-General has himself decided that the persons mentioned in Schedule 1 shall be prosecuted, but has, of course, left it to the Tribunal to decide whether the evidence led by the prosecution justifies the framing of a charge.

It was next contended that even if the Ordinance conferred jurisdiction on the Special Tribunal to try the petitioner such a trial could not be validly held except with the previous sanction required by Section 197, Criminal P.C. So far as it is relevant to this point, Section 197 provides that when any public servant, not removable from his office without the sanction of a Provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction in the case of a person employed in connexion with the affairs of the Federation, of the Governor-General exercising his individual judgment, and in the case of a person employed in connexion with the affairs of a Province, of the Governor of that Province exercising his individual judgment. Sub-section (3) provides, in the former case, that until the establishment of the Federation it is the sanction of the Governor-General in Council that is required. When an accused person pleads Section 197 as a bar to his trial it is for him to show the facts which bring that section into operation.

The petitioner did not raise at his trial the question whether he was a public servant of the kind to whom Section 197 applies, with the result that the facts necessary for the determination of the question whether he is a public servant not removable from his office without the sanction o� the Provincial Government or some higher authority have not been ascertained. As a station master on a State Railway the petitioner is a public servant, but whether he is a public servant not removable from his office without the sanction of the Provincial Government or some higher authority is another matter. Provisions relating to the Civil Services are contained in Chap. 2, Government of India Act. Section 240(1) provides that except as expressly provided by the Act every person who is a member of a Civil Service of the Crown in India or holds any post under the Crown in India holds office during His Majesty''s pleasure, and Sub-section (2) provides that no such person shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. There is no bar to his dismissal by the authority which appointed him: see in this connexion the decision of the Federal Court in AIR 1943 18 (Federal Court) . In this case we do not know who appointed the petitioner to the rank of station master. Although the omission of the petitioner to raise at his trial the bar of Section 197 has resulted in the Special Tribunal not having decided the authority by which he was appointed to his office, it may, I think, be safely assumed that neither the Central Government nor the Provincial Government had anything to do with his appointment as an officer of the Railway or to his post as station master of Jamalpur. In this Court a letter from the Office of the Divisional Superintendent of the East Indian Railway at Howrah has been produced in which it is stated that the petitioner was commissioned as a second Lieutenant in the Indian Engineers on 8th December 1942. The terms of his commission in the Indian Engineers were published in the East Indian Railway Gazette No. 16 of 12th August 1942. Paragraph 1 of this announcement is as follows:

Railway Gazetted Officers will be granted Emergency Commissions in His Majesty''s land forces in the case of non-domiciled Europeans, and in His Majesty''s Indian land forces in the case of Indians, Anglo-Indians and domiciled Europeans. These commissions will be for the duration of the officer''s employment with the Defence of India Railway Unit only, and on ceasing to be so employed, an officer will be required to resign his commission. In the event of an officer being released for service with a regular unit, he will be granted an emergency commission under Army Instructions (India) No. 12 or 13 of 1940.

No other materials have been placed before us from which we have been able to ascertain whether the petitioner is a non-domiciled European or an Anglo Indian or domiciled European, or the authority which commissioned, the petitioner in the Indian Engineers, or which has the power to deprive him of that commission. Even assuming (but not deciding) that Section 197 may be invoked in a prosecution under the Ordinance, in a proper case, the petitioner has, in my opinion, failed to show that he is the kind of public servant to whom Section 197, Criminal P.C., applies.

The last contention is based on Section 270, Government of India Act. This section debars the institution of criminal proceedings against any person in respect of any act done or purporting to be done in execution of his duty as a servant of the Crown in India, except with the consent in the case of a person who is employed in connexion with the affairs of the Government of India, of the Governor-General in his discretion, and in the case of a person employed in connexion with the affairs of a Province, of the Governor of the Province in his discretion. It is contended that this section requires the Governor-General to consider whether he should, in the exercise of his discretion, consent to the institution of proceedings against a servant of the Crown, and that in the case of the persons mentioned in Schedule 1 to the Ordinance he has not so considered the matter. In my view, there is no substance in this contention whatever. The Governor-General has himself made and promulgated an Ordinance for the express purpose of setting up tribunals for the trial of the persons mentioned in Schedule 1 and, so far as those persons are concerned, it is impossible to accept the contention that he has not consented to their prosecution in respect of offences mentioned in the Ordinance itself. I would accordingly discharge this rule.

Imam J.

The petitioner was convicted for an offence u/s 161, Penal Code, by a Special Tribunal at Calcutta constituted under the provisions of Ordinance 29 of 1943, hereinafter referred to as the Ordinance. Under the provisions of Section 8 of the Ordinance, this Court was moved in its revisional jurisdiction, an appeal being prohibited u/s 7. The facts have been stated in the judgment of my learned brother and I do not find it necessary |to re-state them in greater detail. It is quite jobvious, having regard to the provisions of the Ordinance, that this revisional application should not be treated as an appeal on facts. The conviction of the petitioner has been challenged on various grounds mentioned in the judgment of my learned brother. I propose to express my opinion on only two of them. It was urged that the Ordinance was ultra vires and that even if it was intra vires the trial and conviction of the petitioner was vitiated as the provisions of Section 197, Criminal P.C., and of Section. 270(1), Constitution Act, had not been complied with.

It was contended by Mr. P.R. Das who appeared for the petitioner that the Ordinance was ultra vires the Governor-General as the provisions of the Ordinance did not make it immediately effective. To make it so some one other than the Governor-General was required to prefer a charge. It could not be said, therefore, that an emergency had arisen for the setting up of Special Tribunals to try cases against certain individuals. He relied) strongly on the observations of Sen J. in Benoari Lal Sarma and Others Vs. Emperor, and Sushil Kumar Bose Vs. Emperor, . He pointed out that the Federal Court while not deciding the point raised by Sen J. had stated that it was a substantial one. Accordingly, it was submitted that this Court was entitled to come to a conclusion as to whether the Governor-General was correct in declaring that an emergency had arisen. It was the existence of an emergency which alone conferred on the Governor-General the power to enact an Ordinance u/s 72 of Schedule 9, Constitution Act, and if this Court decided that no emergency had arisen the Ordinance would then be ultra vires. As to whether this Court can investigate the circumstances which led the Governor-General to declare that an emergency had arisen, the decision of the Judicial Committee in AIR 1931 111 (Privy Council) must be kept in mind. I would quote the following passage from Lord Dunedin''s judgment:

The petitioner asks this board to find that a state of emergency did not exist. That raises directly the question who is to be the judge of whether a state of emergency exists. A slate of emergency is something that does not permit of any exact definition: It connotes a state of matters calling, for drastic action which is to be judged as such by some one. It is more than obvious that that some one must be the Governor-General and he alone. Any other view-would render utterly inapt the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance.

Yet, if the view urged by the petitioners is right, the judgment of the Governor-General could be upset either (a) by this board declaring that once the Ordinance was challenged in proceedings by way of habeas corpus the Crowrl ought to prove affirmatively before a Court that a state of emergency existed, or (b) by a finding of this board--after a contentious and protracted inquiry that no state of emergency existed, and that the Ordinance with all that followed on it was illegal. In fact, the contention is so completely without foundation on the face of it that it would be idle to allow an appeal to argue about it.

It was next said that the Ordinance did not conduce to the peace and good government of British India. The same remark applies. The Governor-General is also to judge of that. The power given by Section 72 is an absolute power, without any limits prescribed, except only that it cannot do what the Indian Legislature would be unable to do, although it is made clear that it is only to be used in extreme cases of necessity where the good government of India demands it.

In the above case the Governor-General had in fact stated his reasons, for promulgating his Ordinance. As to this Lord Dunedin observed:

Their Lordships must add that, although the Governor-General thought fit to expound the reasons which induced him to promulgate this Ordinance, this was not in their Lordships'' opinion in any way incumbent on him as a matter of law." I have quoted these passages from the judgment of the Privy Council as they are material to the submission made before this Court. In my view, it is now beyond question that any Court can investigate the circumstances which led the Governor-General to declare that an emergency had arisen. As was stated by Lord Dunedin, the sole judge of this is the Governor-General himself and his decision is final. Furthermore, it was not incumbent upon the Governor-General to state the real sons for his decision. It was said however that the provisions of the Ordinance had not directed that the cases mentioned in Schedule 1 against the several accused shall be tried by the Special Tribunals but had merely conferred jurisdiction upon them to try such cases if a charge was preferred. The observations of Sen J. in the two cases cited above were relied upon in support of the contention that no emergency had really arisen as the Governor-General himself had not directed the trial of the cases in Schedule 1 by the Special Tribunals. The Special Tribunals could only try such cases when a charge was preferred. The decision, then as to whether any such case should be tried was not of the Governor-General but of some one else.

Sen J. expressed his opinion in the two, cases mentioned above with reference to the validity of Ordinance 2 of 1942. In promulgating ordinance 2 of 1942, the Governor-General, after declaring that an emergency had arisen making it necessary for the setting up of Special Criminal Courts, proceeded to enact by Section 1(iii) that it shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from, amongst other things, internal disturbance, by notification in official gazette, declares it to be in force in the Province. I think the line of reasoning of Sen J. shortly stated amounts to this. It is true that the Governor-General had declared that an emergency had arisen but he was not satisfied that the emergency was so immediate that Ordinance 2 of 1942 should be enforced. The endorsement of it was left to a Provincial Government on its being satisfied that an emergency had arisen for doing so. In other words, a Provincial Government became the sole judge to decide whether an emergency had arisen before it could be made effective. I do not feel called upon to express any opinion on the view of Sen J. as I think the circumstances which induced him to expresshis opinion do not arise in this case.

It is to be observed that in the case before us the Ordinance enacts that it shall come into force at once and is not dependent for its enforcement, unlike Ordinance 2 of 1942, upon the judgment, discretion or will of any authority other than the Governor-General. There is nothing to be found in its (the Ordinance) provisions which authorises some one other than the Governor-General himself to judge as to whether at emergency had arisen. The argument, however, appears to be that since the Governor. General had merely conferred jurisdiction on the Special Tribunals to try the cases specified in Schedule 1 if a charge was preferred and not to try them, he could not have been satisfied that the emergency was so immediate as to make it necessary to enact the Ordinance. It was further said that the words in Section 5 of the Ordinance "as may be preferred" signified that the decision to try the petitioner was to be not of the Governor-General but of some one else. Accordingly, it was urged that the view of Sen J. should be accepted and that this Court could decide as to whether in fact an emergency had arisen justifying the Governor-General enacting the Ordinance. In my judgment, Sen J.''s view is not directly in point and as far as I can see, reference to his view is sought by way of analogy. The decision of the Federal Court in AIR 1943 36 (Federal Court) was definite in its opinion that Ordinance 2 of 1942 was not ultra vires the Governor-General on the ground that its subject-matter lay outside his ordinance, making powers. The Chief Justice of India in AIR 1944 1 (Federal Court) in referring to the judgment of the Federal Court in the above case stated as follows:

It was, however, expressly stated in that judgment that there could be no suggestion that the Ordinance was ultra vires the Governor-General on the ground that its subject-matter lay outside his ordinance-making powers. There could be no doubt that by a properly framed Ordinance, the Governor-General constituted Special Courts, invested them with jurisdiction to try specified cases and prescribed the procedure to be followed by them in the trial of such cases even to the exclusion of material provisions of the Code of Criminal Procedure. Whatever might be held as to the expediency of curtailing the safeguards enacted by the Code to ensure a fair trial, no doubt could be cast upon the competence of the Ordinance-making authority to restrict or even, remove any of the safeguards.

The Ordinance according to its provisions has constituted a Special Court and has invested it with jurisdiction to try specified cases and has prescribed the procedure to be followed by it in the trial of such cases. I have no doubt whatsoever that the subject-matter of the Ordinance lay within the Governor-General''s Ordinance-making powers. He had conferred jurisdiction on the Special Tribunals to try specified cases. It was not necessary to state in actual words that the Special Court shall try a specified case or cases. The Governor-General having conferred jurisdiction on the Special Tribunal to try specified persons with reference to specified offences as mentioned in the Ordinance he could prescribe the procedure to be followed by the Special Tribunal in the trial of such cases. The mere fact that the expression ''as may be preferred'' is to be found is Section 5 of the Ordinance does not, in my opinion, clothe any other authority with power to confer jurisdiction upon the Special Tribunal to try the cases mentioned in the schedule of the Ordinance. Section 5 the Ordinance must be read as a whole and the latter portion of that section cannot be left out of consideration in construing the real meaning of the section. Section 5 confers jurisdiction on the Special Tribunals constituted under the Ordinance to try the cases allotted to them in Schedule 1 in respect of such of the charges for offences specified in Schedule 2 as may be preferred against the several accused and any such case which is at the commencement of the Ordinance, pending before any Court shall be deemed to be transferred from that Court to the Special Tribunal to which it is allotted. By the provision of this section, two situations were contemplated (1) where at the time of the Ordinance coming into force namely, 11th September 1943 no case against any of the persons mentioned in Schedule 1 was pending before any Court and charges had yet to be preferred; and (2) cases which were pending before any Court. In either event Section 5 enacted that the Special Tribunals shall have jurisdiction to try such cases. The words ''as may be preferred,'' in my opinion, mean that'' although the cases referred to in Schedule 1 of the Ordinance had not yet come before any Court by way of a complaint or by way of a charge-sheet submitted by the police at the commencement of the Ordinance, yet the Special Tribunals shall have jurisdiction to try such cases. I do not think that the words ''as may be preferred'' should be read to mean that it was the decision of some one else than the Governor-General which gave effective jurisdiction to the Special Tribunals to try the cases mentioned in Schedule 1. The provisions of Schedule 1 of the Ordinance appear to me to clearly state that the persons named in them were to be tried for the offences charged therein.

It is to be noticed that in the heading of Schedule 1, Part 1, the words ''cases for trial by the Tribunal with headquarters at Calcutta'' are to be found. Under the heading there are two columns. In the first a list of the accused persons whose cases are set down for trial is given. In the second the offences punishable under the Penal Code charged against the accused are stated. In Part 2 of Schedule 1 similar provisions are to be found with reference to the Tribunal constituted at Lahore. Section 5 of the Ordinance and the two schedules must be read together. In my judgment not only was jurisdiction to try conferred on the Special Tribunals but the cases for trial before them of any particular individual mentioned in Schedule 1 were clearly authorised. The preferring of a charge was merely a matter of procedure to be observed by the Special Tribunals. The Ordinance was being put into force at once and there may have been a number of cases of Schedule 1 which were at that time not actually pending before any Court. On the other hand, there may have been a number of cases in that schedule which Vere actually pending before a Court. In either event such cases were to be tried by the Special Tribunals and it was a mere matter of procedure that a charge had yet to be preferred in some of them. This is quite different to saying that some one other than the Governor-General was to decide whether the cases mentioned in Schedule 1 should be tried by the Tribunals. In my opinion, having regard to the decision of the Judicial Committee in AIR 1931 111 (Privy Council) and the observations of the Chief Justice of India in AIR 1944 1 (Federal Court) already referred to, it is not possible to hold that the Ordinance is ultra vires.

The second point of law which I proceed to consider is with reference to the provisions of Section 197, Criminal P.C., and Section 270(1), Constitution Act, and its alleged non-compliance. The line of reasoning submitted for our consideration in this connexion appears to be that the Governor-General had to perform two functions. In the first place he had to judge whether an emergency had arisen before he could enact the Ordinance; and in the second to exercise his individual judgment whether he would accord his sanction u/s 197, Criminal P.C., or give his consent u/s 270(1), Constitution Act, before any proceedings could be instituted against the petitioner. It was suggested that even if the Governor-General had judged that an emergency had arisen, it did not necessarily follow that he had exercised his individual judgment in according sanction u/s 197, Criminal P.C., or had given his consent u/s 270(1), Constitution Act. It was suggested that the words "as may be preferred" in Section 5 of the Ordinance on the contrary indicated that he had left it to somebody else to decide whether the petitioner should be prosecuted as Section 5 of the Ordinance merely gives jurisdiction to the Special Tribunals to try the cases in Schedule 1 and not to try them. Reference was made to Sir Maurice Gwyer''s observations in AIR 1939 43 (Federal Court) that the provisions of Section 270(1), Constitution Act, are intended to be real and not merely illusory, that its provisions were intended to prevent public servants from being unnecessarily harassed except with the previous sanction of the Governor-General or the Governor as the case may be, and that proceedings started without such consent are declared to be illegal. I have no doubt that these sections are mandatory and compliance with their provisions is required before a Court can take cognizance of an offence or any proceedings civil or criminal can be instituted. Our attention was drawn to Section 6(2) of the Ordinance according to which the provisions of the Code of Criminal Procedure except Section 196A and chap. 33 shall apply to the proceedings of the Special Tribunals so far as they are not inconsistent with the Ordinance. It was said that Section 197 of the Code was not expressly excluded as was Section 196A and chap. 33 of the Code.

As to this the short answer is that the provisions of Section 197 of the Code are inconsistent with the Ordinance. The sanction to be accorded u/s 197 is to be of the Governor-General in the exercise of his individual judgment, that is to say, of the Governor-General in Council (vide Section 197(3) of the Code). Ordinance making authority is the Governor-General and not the Governor-General in Council. The Ordinance having specified in Schedule 1 the cases for trial before the Special Tribunal with jurisdiction to try them, it would be inconsistent with its provisions to insist that the requirements of Section 197 of the Code must be complied with. The Governor-General having enacted the Ordinance could not be called upon to seek the aid of his Council to the granting of sanction. To do so might defeat the whole purpose of the Ordinance as his Council might not agree with him.

Coming to Section 270(1), Constitution Act, to my mind, nothing could be more real as to whether the Governor-General had given his consent to the commencement of proceedings against the petitioner than the provisions of the Ordinance itself. It appears to me that not only had the Governor-General exercised his judgment that an emergency had arisen necessitating the promulgation of the Ordinance, but that he had also exercised his judgment as to whether the petitioner should be prosecuted. He had decided to exercise his Ordinance-making powers and had enacted a law which provided a machinery for the prosecution and the trial of the petitioner.

Before he framed the Ordinance, he must have considered whether the petitioner should be prosecuted. He could not have included the name of the petitioner in Schedule 1 and specified the offence for which his case was to come for trial before the Special Tribunal unless he had consented to the institution of criminal proceedings against the petitioner. Section 270(1), Constitution Act, does not prescribe the manner in which the consent has to be given. The provisions of Schedule 1 indicate that the Governor-General had consented to the initiation of criminal proceedings against the petitioner and this not by way of an executive order but by way of statutory law which must be considered more solemn than a mere executive order.

The mere fact that he has provided in the Ordinance a procedure by which the cases mentioned in Schedule 1 should come before the Special Tribunals for trial does not mean that the requirements of Schedule 270(1), Constitution Act, had not been complied with. The words "as may be preferred" in Section 5 of the Ordinance do not convey to me the meaning attributed to them. I am of the view that the trial of the petitioner was valid as it was held under the provisions of statutory law by a Court on whom jurisdiction had been conferred to try the petitioner. I agree that no real ground has been established for ordering a retrial and that the rule must be discharged.

u/s 205, Government of India Act, we certify that the case involves a substantial question of law as to the interpretation of the Government of India Act.