PETITIONER:
KANGSARI HALDAR & ANOTHER
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT:
18/12/1959
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.
SARKAR, A.K.
SUBBARAO, K.
SHAH, J.C.
CITATION:
1960 AIR 457 1960 SCR (2) 646
CITATOR INFO :
R 1967 SC1581 (23)
R 1974 SC2009 (12,15)
F 1974 SC2044 (3)
R 1979 SC 478 (72,73)
ACT:
Criminal Trial-Statute Providing for trials by special
Tribunals of specified offences committed in disturbed areas
during specified Periods-Constitutionality-Reasonable
classification-Test -Tribunals of Criminal jurisdiction Act,
1952 (W.B. Act XIV of 1952), s. 2(b), proviso to s- 4(1).
HEADNOTE:
The appellants were prosecuted for having committed offences
under S. 120B read with Ss. 302 and 436 of the Indian Penal
Code and their case was taken up for trial before the Third
Tribunal constituted under the West Bengal Tribunals of
Criminal jurisdiction Act, 1952 (W.B. Act XIV of 1952). By
a notification dated September 12, 1952, and issued under S.
2(b) of the Act the Government of West Bengal declared the
whole area within the jurisdiction of Kakdwip and Sagar
Police Stations to be a disturbed area and specified the
period from January 1, 1948, to March 31, 1950, to be the
period during which the notification was to be effective.
The case against the appellants was that between the dates
mentioned in the notification, they took leading part in a
violent movement called the Tebhaga movement in Kakdwip and
incited the Bhagehasis, i.e., the cultivators who actually
cultivated the land, to claim the entire crop instead of 2/3
share of it and that they preached murder and arson amongst
the cultivators and such preaching was followed by arson and
murder on a large scale. The appellants moved the High
Court for an order quashing the proceedings against them on
the ground that S. 2(b) of the Act, which allowed the
Government to declare an area in which “ there was ”
disturbance in the past to be a disturbed area, offended
Art. 14 Of the Constitution as discriminating between
persons who had committed the same offences and whose trials
had already concluded before the notification under the
normal and more advantageous procedure and others whose
trials had not concluded and who had to be tried by a less
advantageous and special procedure prescribed by the Act.
The application of the appellants was first heard by a bench
of two judges but as there was difference of opinion between
them the matter was referred to a third judge, and the High
Court by a majority held that the provisions of the impugned
Act were intra vires and did not offend Art. 14 of the
Constitution.
On appeal by special leave challenging the vires Of S. 2(b)
and the proviso to S. 4(1) Of the Act,
Held (per Sinha, C.J., Gajendragadkar and Shah, jj.), that
the equality before law, guaranteed by Art. 14, no doubt
prohibits class legislation but it does not prohibit the
Legislature to legislate
647
on the basis of a reasonable classification. If any state
off acts can reasonably be conceived to sustain a
classification, the existence of that state of facts must be
assumed.
Chiranjitlal Choudhuri v. The Union of India and Others,
[1950] S.C.R. 869 and Kedar Nath Bajoria v. The State of
West Bengal, [1954] S.C.R. 30, followed.
Where the classification is reasonable and is founded on an
intelligible differentia and that differentia has a rational
relation to the object sought to be achieved by the statute,
the validity of the statute cannot be successfully
challenged under Art. 14. Since the classification made by
the impugned Act is rational and the differentia by which
offenders are classified has a rational relation with the
object of the Act to provide for the speedy trial of the
offences specified in the Schedule, S. 2(b) and the proviso
to s. 4(1) of the Act cannot be said to contravene Art. 1 Of
the Constitution even though the procedure prescribed by the
Act may amount to discrimination.
The State of West Bengal v. Anwar Ali Sarkar, [1952] S.C.R.
284, distinguished.
Kathi Raning Rawat v. The State of Saurashtra, [1952] S.C.R.
435, Lachmandas Kewalram Ahuja and Another v. The State Of
Bombay, [1952] S C.R. 710 and Gopi Chand v. Delhi
Administration, A.I.R. 1959 S.C. 609, considered.
Per Sarkar and Subba Rao, jj. (dissenting).-Whether a law
offends Art. 14 or not does not depend upon whether it is
prospective or retrospective for both prospective and
retrospective’ statutes may contravene the provisions of
that Article. Although the general rule is that a law must
apply to all persons, it is permissible to validly legislate
for a class within certain well recognised limits. The true
test of a valid classification is that it must be capable of
being reasonably regarded as being based upon a differentia
which distinguishes that class from others, and the
differentia itself must have a reasonable relation with the
object the statute has in view.
Shri Ram Krishna Dalmia v. Shri justice S.R. Tendolkar,
[1959] S.C.R. 279, followed.
The object of the Act in question being to secure a speedy
trial of certain offences committed in a specified area
during a specified period of time in the interest of the
security of the State and the maintenance of public peace
and tranquillity in a disturbed area, a distinction made
between the cases where the trials had been concluded and
the cases where the trials had not yet been concluded, is
not a distinction which has any rational relation to the
object. In order to secure that object it is necessary to
place both classes of persons in the same situation.
Gopi Chand v. Delhi Administration, A.I.R. 1959 S.C. 609,
distinguished.
648
The Act in so far as it permits an area which was a
disturbed area in the past to be declared a disturbed area
for the purposes of the Act offends Art. 14 of the
Constitution and is, therefore, unconstitutional and void.
That portion Of S. 2(b) which declares an area to be a
disturbed area in the past and the notification in question
must therefore be held to be void.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 204 of
1959.
Appeal by special leave from the judgment and order dated
June 23, 1959, of the Calcutta High Court in Criminal
Revision No. 640 of 1958.
S. K. Acharya and Janardan Sharma, for the appellants.
S. M. Bose, Advocate-General for, the State of West
Bengal, K. C. Mukherjee and P. K. Bose, for the respondent.
1959. December 18. The judgment of Sinha, C. J.,
Gajendragadkar and Shah, JJ. was delivered by Gajendragadkar
J. The judgment of Sarkar and Subba Rao, JJ. was delivered
by Sarkar, J.
GAJENDRAGADKAR J.-This appeal by special leave challenges
the vires of S. 2(b) and the proviso to s. 4(1) of the West
Bengal Tribunals of Criminal Jurisdiction Act, 1952 (W.B.
Act XIV of 1952) (hereinafter called the Act). A complaint
was filed against Kangsari Haldar and Jogendra Nath Guria
(hereinafter called the appellants) in which it was alleged
that the appellants along with some others had committed
offences under s. 120B read with ss. 302 and 436 of the
Indian Penal Code. The case against them was that in 1947 a
tebhaga movement had been launched in Kakdwip area by the
communist party and that later on the Bhagehasis were
persuaded to claim the entire and not only 2/3 of the
produce in pursuance of the said movement. It was further
alleged that the leaders of said movement including the
appellants preached murder and arson amongst the cultivators
and that such preaching and propaganda were followed by
arson and murders on a large scale. It was on these
allegations that a charge-sheet was submitted against the
appellants and the case
649
against them taken up for trial before the Third Tribunal at
Alipore constituted under the Act. Ninetynine witnesses
were examined by the prosecution in support of its case and
the tribunal framed charges against the appellants under the
three sections already mentioned by its order dated May 16,
1958. The offences in question are alleged to have been
committed during the period beginning from January 1, 1948,
and ending on March 31, 1950, within Kakdwip and Sagaour
police stations.
By their Criminal Revision Application No. 640 of 1958 the
appellants challenged the validity of the proceedings before
the tribunal and applied for quashing the said proceedings
and the charges framed against them under s. 439 of the Code
of Criminal Procedure as well as Art. 227 of the
Constitution in the Calcutta High Court. Their application
was first heard by Mitter and Bhattacharya, JJ. ; but since
there was a difference of opinion between the two learned
judges the case was referred to Sen, J. Bhattacharya, J.,
had taken the view that the impugned provisions of the Act
were ultra vires and so he was inclined to allow the
revision application and quash the proceedings taken against
the appellants ; on the other hand, Mitter, J., had taken a
contrary view, and Sen, J., to whom the matter was referred
agreed with the view taken by Mitter, J. In the result it
was held that the impugned provisions of the Act were intra
vires and so the rule issued on the appellants’ revision
application was discharged and the application itself was
dismissed. The appellants then applied to the said High
Court for a certificate either under Art. 132 or under Art.
134 of the Constitution but their applications were
dismissed. Thereupon they moved for, and obtained, special
leave from this Court. That is how this appeal has come
before this Court; and the only point which it raises for
our decision is about the vires of the two impugned
provisions of the Act.
On behalf of the appellants Mr. Acharya has contended that
the genesis of the Act should be borne in mind in dealing
with the vires of the impuged provisions ; and in support of
this argument he has strongly
83
650
relied on the sequence of events which led to the passing of
the Act. It appears that the West Bengal special Courts Act
X of 1950, was passed by the West Bengal Legislature and
came into force on March 15, 1950. The vires of s. 5(1) of
the said Act were impeached by Anwar Ali Sarkar and others
who were being tried under the provisions of the said Act.
On August 28, 1951, the Calcutta High Court partially upheld
the plea and struck down a part of s. 5(1). The said deci-
sion was challenged by the State of West Bengal before this
Court in The State of West Bengal v. Anwar Ali Sarkar (1) ;
but the appeal preferred by the State was dismissed; and by
a majority decision of this Court not only a part of s. 5(1)
but the whole of it was declared to be ultra vires as being
violative of Art. 14 of the Constitution. This decision was
pronounced on January 11, 1952. Soon thereafter an
Ordinance was promulgated (No. 1 of 1952) by the West
Bengal Government on March 24, 1952, and in due course this
Ordinance was replaced by the Act which came into force on
July 30, 1952. Section 12 of the Act purports to repeal the
earlier Act of 1950 in conformity with the decision of this
Court in Anwar Ali Sarkar’s case (1). The argument is that
by passing the Act the West Bengal Government has attempted
to achieve the same result which it intended to achieve by
s. 5(1) of the earlier Act, and so, according to the
appellants, in substance the decision of this Court in Anwar
Ali Sarkar’s case(1) should govern the decision of the
present appeal. In any case it is urged that the sequence
of events which supply the background to the present Act
should carefully be borne in mind in dealing with the merits
of the points raised by the appellants.
The challenge to the vires of the impugned provisions is
based on the ground that they violate the fundamental right
guaranteed by Art. 14 of the Constitution. The scope and
effect of the provisions of Art. 14 have been considered by
this Court on several occasions, and the matter has been
clarified beyond all doubt. The equality before law which
is guaranteed by Art. 14 no doubt prohibits class
legislation
(1) [1952] S.C.R. 284.
651
but it does not prohibit the Legislature from legislating on
the basis of a reasonable classification. If the
classification is reasonable and is founded on intelligible
differentia and the said differentia have a rational
relation to the object sought to be achieved by the statute
based on such reasonable classification the validity of the
statute cannot be successfully challenged under Art. 14.
These propositions have been repeated so many times during
the past few years that they now sound almost
platitudinous-. Thus the enunciation of the principles
which flow from. the fundamental rights enshrined in Art. 14
now presents no difficulty; it is, however, in the
application of the said principles that difficulties often
arise. In applying the said principles to the different
sets of facts presented by different cases emphasis may
shift and the approach may not always be identical; but it
is inevitable that the final decision about the vires of any
impugned provision must depend upon the decision which the
court reaches, having regard to the facts and circumstances
of each case, the general scheme of the impugned Act and the
nature and effect of the provisions the vires of which are
under examination. Let us, therefore, first examine the
relevant scheme of the Act and ascertain the effect of the
provisions under challenge.
The Act was passed because the Legislature thought it
expedient in the interest of the security of the State, the
maintenance of public peace and tranquillity and the due
safeguarding of the industry and business, to provide for
the speedy trial of the offences specified in the schedule.’
Section 2(b) defines a disturbed area as meaning an area in
which in the opinion of the State Government-(i) there was,
or (ii) there is, any extensive-disturbance of the public
peace and tranquillity and in respect of which area the
State Government has issued a notification declaring such
area to be a disturbed area. The section then adds that in
cases falling under cl. (i) the notification shall have
effect during such period as may be specified therein, and
in cases falling under cl. (ii) the notification shall have
effect from such date as may be specified in the
652
notification until the notification is revoked. It would
thus be noticed that the disturbed area can be of two
categories; it can be an area where extensive disturbance as
described had taken place but at the time of the
notification the disturbance may have ceased; and an area
where the disturbance is taking place at the time of the
notification. In respect of the first category of disturbed
areas the notification has to specify the period covered by
the previous disturbance, and it is the specified offences
which had taken place during the said period that fall
within the mischief of the Act. In the case of the
notification issued in respect of areas where disturbances
are taking place the notification has effect from such date
as it may specify and it will continue to be in operation
until it is revoked. Section 2(d) defines a scheduled
offence as any offence specified in the schedule and s. 2(e)
defines a tribunal as meaning a tribunal of Criminal
Jurisdiction constituted under sub-s. (1) of s. 3. The
scheduled offences are specified in four items. Item 1
deals with offences against the State prescribed by ch. 6 of
the Indian Penal Code. Item 2 deals with some of the
offences against human body and property covered by ch. 16
and ch. 17 of the Code. Item 3 refers to some of the said
offences if they are committed in the course of a raid on or
a riot in a factory or a mill or a workshop or a bank or in
relation to transportation of property to or from a factory,
mill, workshop or bank; and the last item covers cases of
conspiracy to commit or any attempt to commit or any
abetment of any of the offences specified in items 1 to 3.
The scheme of the Act is thus to appoint special. tribunals
to try the scheduled offences which have taken place in
disturbed areas as defined in s. 2(b). That is the effect
of s. 4 of the Act. The proviso to s. 4(1) enables the
tribunal when it is trying any case to try in its discretion
any offence other than a scheduled offence with which the
accused may under the Code be charged at the same trial. In
other words, the trial of an accused person in respect of
the scheduled offences may include any other offence which
is not included in the schedule and which would be triable
under the provisions of the
653
Code. As we have already indicated the present appeal
challenges the vires of s. 2(b) and the proviso to s. 4(1).
It cannot be disputed that the procedure prescribed for the
trial before the tribunal under the Act differs in some
material, particulars from the procedure prescribed by the
Code, and the said difference can be treated as amounting to
discrimination which is pre-judicial to the accused; under
the Act no commitment proceedings have to be taken and the
benefit of jury trial is denied. The provision made by the
first proviso -to s. 5 in respect of adjournment of the
trial is also stricter and more stringent. Similarly, the
right of an accused person to claim a de novo trial where a
judge presiding over a tribunal ceases to be available
before the completion of the trial is also materially
affected by the provisions of s. 6. Section 10 makes
applicable the provisions of the Code or of any other law
for the time being in force which may be applicable to the
trial of criminal cases in so far as they are not incon-
sistent with the provisions of the Act. Thus it may be
conceded that the appellants are entitled to complain that
on the whole the procedure prescribed for the trial of
scheduled offences under the Act amounts to discrimination.
The question is whether such discrimination violates the
provisions of Art. 14.
This question necessarily leads us to inquire whether the
discriminatory provisions of the Act are based on any
rational classification, and whether the differentiation of
the offenders brought within the mischief of the Act has a
rational nexus with the policy of the Act and the object
which it intends to achieve. The preamble shows that the
Legislature was dealing with the problem raised by
disturbances which had thrown a challenge to the security of
the State and raised a grave issue about the maintenance of
public peace and tranquillity and the safeguarding of
industry and business. It, therefore, decided to meet the
situation by providing for speedy trial of the scheduled
offences. Thus the object of the Act and the principles
underlying it are not in doubt. It is true that speedy
trial of all criminal offences is desirable; but there would
be no difficulty in appreciating the anxiety of the
654
Legislature to provide for a special procedure for trying
the scheduled offences so as to avoid all possible delay
which may be involved if the normal procedure of the Code
was adopted. If the disturbance facing the areas in the
State had to be controlled and the mischief apprehended had
to be Checked and rooted out a very speedy trial of the
offences committed was obviously indicated.
The classification of offenders who are reached by the Act
is obviously reasonable. The offences specified in the four
items in the schedule are clearly of such a character as led
to the disturbance and it is these offences which were
intended to be speedily punished in order to put an end to
the threat to the security of the State and the maintenance
of public peace and tranquillity. It would be idle to
contend that if the offences of the type mentioned in the
schedule were committed and the Legislature thought that
they led to the disruption of public peace and tranquillity
and caused jeopardy to the security of the State they could
not be dealt with as a class by themselves. Other offences
committed by individuals under the same categories of
offences specified by the Code could be’ rationally excluded
from the classification adopted by the Act because they did
not have the tendency to create the problem which the Act
intended to meet. We are, therefore, satisfied that the
classification made by the Act is rational and the
differentiation on which the offenders included within the
Act are treated as a class as distinguished from other
offenders has a rational nexus or relation with the object
of the Act and the policy underlying it. Therefore, it
would be difficult to accede to the argument that the Act
violates Art. 14 of the Constitution.
It is, however, urged that s. 2(b)(i) is not intra vires
because the classification on which it is based violates
Art. 14. This contention has taken a two-fold form. It is-
urged that the notification which is authorised to be issued
under s. 2(b)(i) necessarily deals with an area which has
ceased to be disturbed at the time when it is issued; and it
is inevitable that when such a notification is issued some
of the offences which would have
655
been tried under the Act as a result of the notification may
have already. been tried under the ordinary Code, and it is
only such cases as are not disposed of on the date of the
notification which would fall within the mischief of the Act
and that constitutes an irrational or arbitrary
classification. It is also urged that when the area covered
by such a notification has ceased to be disturbed there is
no rational or valid justification for applying the Act to
the offences committed in such an area when in the other
continuously undisturbed areas similar offences would be
tried under the normal provisions of the Code. In fact it
is these two aspects of the question which have been
strongly pressed before us by Mr. Acharya in the present
appeal. Before dealing with these two arguments it would be
relevant to recall that this Court has accepted the general
principle that ” if any state of facts can reasonably be
conceived to sustain a classification, the existence of that
state of facts must be assumed “ (Vide: Chiranjitlal
Chaudhuri v. The Union of India & Ors. (1) and Kedar Nath
Bajoria v. The State of West Bengal (2) ).
It is quite true that when a notification is issued under s.
2(b)(i) specifying the period during which the area in
question was disturbed some offences though falling under
the schedule might have been tried under the Code while some
others which may be pending at the date of the notification
would be tried under the Act. But does that introduce any
vice in the classification ? If the area was disturbed and
the notification specifying the period of such disturbance
is otherwise justified in the sense that the speedy trial of
the seheduled offences committed during the specified period
can be validly directed, then the fact that some offences
had already been tried before the notification cannot, in
our opinion, introduce any infirmity in the statutory
provision itself It must be remembered that the
classification on which the impugned notification rests is
between the scheduled offences committed in an area which is
declared to be a disturbed area and similar offences
committed elsewhere in the State; and so the fact that some
of the scheduled offences
(1) [1950] S.C.R. 869 at p. 877.
(2) [1954] S.C. R. 30 at P. 39.
656
escaped the operation of the notification because they had
been already tried cannot affect its legality or validity.
Such an adventitious or accidental result cannot sustain the
attack against the classification which is otherwise
rational, reasonable and valid. In fact it would not be
easy or always possible for the Legislature to prevent such
an accidental escape of some cases from the provisions of a
special statute for the reason that they had already been
decided. If the statute had permitted discrimination
between cases under the scheduled offences which still
remained to be tried that would have been another matter.
In our opinion it would be unreasonable to requisition the
assistance of cases which had been disposed of and have
become a matter of history to challenge the classification
in question.
The second contention is also without substance because it
ignores the material difference between the character of the
offences committed during the specified period in the
disturbed area and offences committed in continuously
undisturbed areas. The offences committed in areas
subsequently declared to be disturbed led to and were the
cause of the extensive disturbance. In consequence of such
disturbance investigation into such offences is rendered
difficult; it is not easy in such disturbed conditions to
collect and marshall evidence because witnesses are apt to
be terrorised, and though the area has ceased to be
disturbed absence of disturbance may be temporary, and
unless the offenders are brought to book speedily the
temporary peace may turn out to be the lull before another
storm. That is why even in respect of areas which have
ceased to be disturbed, offences committed when the area was
disturbed during the period specified in the notification
are required to be tried under the Act. Such offences
cannot, in our opinion, be reasonably compared with offences
committed under the same sections of the Code in
continuously undisturbed areas. In their essential features
the two offences form two distinct and different categories
and the contention that the classification of the offences
made in such a case is irrational must,
657
therefore, be rejected. The argument that some limitation
of time should have been prescribed within which the
notification should be issued declaring such areas to be
disturbed ignores the fact that prescription of such
limitation may in some cases defeat the purpose of the Act
itself. If the offenders abscond or go underground, as in
the present case appellant 1 did, how can any period of
limitation be prescribed beyond which the power to issue
notification cannot be exercised ? In issuing such
notification several relevant factors pertaining to the
local situation in the area have to be taken into account;
and so failure to prescribe any limitation cannot introduce
any infirmity in the provision.
It is conceivable that the notification issued under s.
2(b)(i) may be colourable or mala fide but in such a case it
is the validity of the notification which can be
successfully challenged, not the vires of the statute under
which it is issued. The colourable or mala fide exercise of
the power in issuing a notification would undoubtedly affect
the validity of the notification itself; but the possibility
of such abuse of power cannot reasonably affect the vires of
the statute itself. Mr. Acharya no doubt suggested that the
object of the impugned notification was to bring only the
case of the appellants under the mischief of the Act but he
frankly conceded that he had not made such a specific plea
in his petition and that, though it would be possible for
him to urge that a large majority of the scheduled offences
committed during the specified period had already been tried
under the Code, it would not be possible for him to sustain
the plea on the material available on the record that the
notification has been issued solely with a view to bring the
case of the appellants alone under the mischief of the Act.
That is why this aspect of the matter does not fall to be
considered in the present appeal.
The next argument is that the proviso to s. 4(1) is ultra
vires. We do not think that here is any substance in this
argument. What the proviso does is to enable the tribunal
to try any offence other than the scheduled offence with
which the accused may be
84
658
charged and which would be ordinarily triable under the
provisions of the Code. But does this amount to an
infringement of Art. 14 at all ? In our opinion the answer
to this question must be in the negative. It is significant
that the proviso leaves it to the discretion of the tribunal
whether or not any other offence should be tried under the
Act along with the scheduled offence charged against the
accused in a given case. Besides there can be no doubt that
the offences’ other than the scheduled offences which may be
included in a trial under the Act would be,minor or allied
offences the proof of which would follow from the facts
adduced in support of the major offences. That in fact is
the position even under the provisions of the Code. If the
trial of the major scheduled offence under the Act is
justified and valid the impugned proviso does nothing more
than enable the tribunal to decide whether the accused is
guilty of any minor or allied offence. In our opinion,
therefore, the challenge to the proviso in question cannot
succeed.
It now remains to consider the decisions to which our
attention was invited. In the case of Anwar Ali Sarkar (1)
where s. 5(1) of the Bengal Act X of 1950 was impeached the
majority decision was that the said section was wholly
invalid. The preamble to the Act had merely stated that it
was expedient to provide for the speedy trial of certain
offences, and s. 5(1) had empowered a special court to try
such offences or classes of offences or cases or classes of
cages as the State Government may by- general or special
order in writing direct. According to the majority decision
the preamble to the Act was vague and gave no indication
about them principles underlying it or the object which it
intended to achieve; and it was also held that s 5(1) vested
an unrestricted discretion in the State Government to direct
any cases or classes of cases to be tried by the special
court. It was observed that the necessity of a speedier
trial mentioned in the preamble was too vague, uncertain and
elusive a criterion to form a rational basis for the
discriminations made, and that it was unreasonable to have
left to the absolute and unfettered discretion of the
(1) [1952] S.C.R. 284.
659
executive government with nothing in the law to guide or to
control its action to decide which cases or classes of cases
should be tried under the Act. There were, however, two
dissents. Patanjali Sastri, C.J. held that s. 5(1) was
wholly valid, where, Das, J., as he then was, agreed with
the conclusion of the High Court that s. 5(1) was bad only
in so far as it empowered the State Government to direct
cases to be tried by a special court; it may be added that
though Bose, J., agreed with the conclusion of the majority,
he was not satisfied that the tests laid down in deciding
the validity of the classification could afford infalliable
guide because he thought that the problem posed in such
cases is not solved by substituting one generalisation for
another. It would thus be seen that the majority decision
in that case was based on two principal considerations that,
having regard to the bald statement made in the preamble
about the need of speedier trials, it was difficult to
sustain the classification made by s. 5(1), and that the
discretion left to the executive was unfettered and for its
exercise no guidance was given by the statute. It is
difficult to accept the suggestion of Mr. Acharya that the
impugned provisions in the Act with which we are concerned
are comparable to s. 5(1) in that case.
The next decision to which reference must be made is Kathi
Raning Rawat v. The State of Saurashtra (1). The majority
decision in that case upheld the validity of ss. 9, 10 and 1
1 of the Saurashtra State Public Safety (Third Amendment)
Ordinance, 1949 (66 of 1949) and the notification issued
under it. Patanjali Sastri, C.J., and three other learned
judges of this Court took the view that the preamble to the
Act gave a clear indication about the policy underlying the
Act and the object which it intended to achieve, that the
classification on which the impugned provisions were based
was a rational classification, and that the differentia on
which the classification was made had a rational nexus with
the object and policy of the Act. Mahajan, Chandrasekhara
Ayyar and Bose, JJ., however, dissented. According to them
the notification
(1) [1952] S.C.R. 435.
660
and the impugned provisions had violated Art. 14. It is
significant that in up holding the validity of the impugned
provisions and the notifications the tests applied were the
same as laid down in Anwar Ali Sarkar’s case (1).
The third decision pronounced by this Court in the same year
-is Lachmandas Kewalram Ahuja & Anr. v. The State of Bombay
(2). Section 12 of the Bombay Public Safety Measures Act,
1947, was struck down by the majority decision in that case
as it contravened Art. 14 and was void under Art. 13 on the
principles laid down in the two earlier decisions to which
we have just referred. Patanjali Sastri, C. J., struck a
note of dissent. He adhered to the view which he had
expressed in Anwar Ali Sarkar’s case (1) and held that the
impugned provision was valid. The decision in the case of
Ahuja (2) proceeded on the basis that the discrimination
which may have been permissible before January 26, 1950,
could not be sustained after the said date because it
violated Art. 14 of the Constitution. Having regard to the
objects which the act intended to achieve and the principles
underlying it, it was held that the said object and
principles applied equally to both categories of cases,
those which were referred to the special judge and those
which were not so referred; and so the discrimination made
between the two categories of cases which could not be
rationally put under two different classes was violative of
Art. 14. Thus the application of the same tests this time
resulted in striking down the impugned provision and the
notification.
In 1953 a similar problem was posed before this Court for
its decision. This time it was s. 4(1) of the West Bengal
Criminal Law Amendment (Special Courts) Act, 1949, which was
challenged in Kedar Nath Bajoria’s case (3 ). This Act had
been passed to provide ‘for the more speedy and more
effective punishment of certain offences because the
Legislature thought that it was expedient to provide for the
more speedy trial and more effective punishment of certain
offences which were set out in the schedule annexed
(1) [1952] S.C.R. 284.
(2) [1952] S.C.R. 710.
(3) [1954] S.C.R. 30.
661
to the Act. Section 4(1) authorised the Provincial
Government to allot cases for trial to a special judge by
notification as well as transfer cases from one special
judge to another or to withdraw any case from the
jurisdiction of the special judge or make such modifications
in the description of a case as may be considered necessary.
Pronouncing the majority judgment in that case Patanjali
Sastri, C. J., elaborately considered the earlier decisions
of this Court to which we have already referred, applied the
tests laid down therein, and held that s. 4 of the Act was
valid and that the special court had jurisdiction to try-
and convict the, appellants. Bose, J., however, did not
agree and recorded his dissent with deepest regret. In
dealing with the merits of the controversyraised before
the Court Patanjali Sastri, C. J., referredto the fact
that according to the dissenting view ” thedecision of the
majority in the case of Kathi Baning Rawat v. The State of
Saurashtra (1) marked a retreat from the position taken up
by the majority in the earlier case of Anwar Ali Sarkar He,
however, added that the Saurashtra case (1) would seem to
lay down the principle that if the impugned legislation
indicates the policy which inspired it and the object which
it seeks to attain, the mere fact that the legislation does
not itself make a complete and precise classification of the
persons or things to which it is to be applied, but leaves
the selective application of the law to be made by the
executive authority in accordance with the standard
indicated or the underlying policy and object disclosed is
not a sufficient ground for condemning it as arbitrary and,
therefore, obnoxious to Art. 14.”
There is is one more decision to which reference may be
made. In Gopi Chand v. Delhi Administration (3) this Court
has upheld the validity of s. 36(1) of the East Punjab
Public Safety Act 5 of 1949. The provisions of this section
authorised the State Government to apply the prescribed
summons procedure for the trial of the specified offences in
dangerously
(1) [1952] S.C.R. 435. (2) [1952] S.C.R. 284.
(3) A.I.R. 1959 S.C. 609.
662
disturbed areas. The notification issued by the State
Government under authority conferred on it by the impugned
Act was challenged as offending Art. 14 but this challenge
was repelled and the statutory provision and the
notification were held to be valid.
The result of these decisions appears to be this. In
considering the validity of the impugned statute on the
ground that it violates Art. 14 it would first be necessary
to ascertain the policy underlying the statute and the
object intended to be achieved by it. In this process the
preamble to the Act and its material provisions can and must
be considered. Having thus ascertained the policy and the
object of the Act the court should apply the dual test in
examining its validity: Is the classification rational and
based on intelligible differentia; and has the basis of
differentiation any rational nexus with its avowed policy
and object ? If both these tests are satisfied the statute
must be held to be valid. and in such a case the
consideration as to whether the same result could not have
been better achieved by adopting a different classification
would be foreign to the scope of the judicial enquiry. If
either of the two tests is not satisfied the statute must be
struck down as violative of Art. 14. Applying this test it
seems to us that the impugned provisions contained in s.
2(b) and the proviso to s. 4(1) cannot be said to contravene
Art. 14. As we have indicated earlier, if in issuing the
notification authorised by s. 2(b) the State Government acts
mala fide or exercises its power in a colourable way that
can always be effectively challenged; but, in the absence of
any such plea and without adequate material in that behalf
this aspect of the matter does not fall to be considered in
the present appeal.
The result is the order passed by the High Court is
confirmed and the appeal dismissed.
Before we part with this appeal, however, we would like to
add that, since the offences are alleged to have been
committed more than ten years ago, it is desirable that the
case against the appellants should now be tried and disposed
of as expeditiously as possible.
663
SARKAR. J. -The question that arises in this appeal whether
a certain provision of the Tribunal Criminal Jurisdiction
Act, 1952, (W. B. Act XIV of 1952) is void as it takes away
the right conferred by art. 14 of the Constitution. In my
view, it is.
The Act came into force on July 30, 1952. The object of the
Act is set out in the preamble which so far as is
relevant in this case reads, ” Whereas it is expedient in
the interests of the security of the State, the maintenance
of public peace and tranquillity to provide for the speedy
trial of the offences specified in the Schedule; It is
hereby enacted….”
The provisions of the Act which have to be considered in
this case are set out below.
S. 2. Definitions.-In this Act unless there is anything
repugnant in the subject or context-
(a)…………………………………
(b) “ disturbed area ” means an area in which in the
opinion of the State Government-
(i) there was or
(ii) there is
any extensive disturbance of the public peace and
tranquillity and in respect of which area the State
Government has issued a notification declaring such area to
be a disturbed area. In cases falling under clause (i) the
notification shall have effect during such period as may be
specified therein, and in cases falling under clause (ii)
the notification shall have effect from such date as may be
specified in the notification until the notification is
revoked;
(c)………………………………
(d) “ Scheduled offence ” means any offence specified in
the Schedule.
(e) ” Tribunal ” means a Tribunal of Criminal Jurisdiction
constituted under sub-section (1) of section 3.
S. 4.
(i) Scheduled offences shall be triable by the Tribunals
only;
664
SCHEDULE
1………………………………….
2. An offence punishable under section 302, section 304,
section 307, section 326, section 363, section 364, section
365, section 366, section 376, section 395, section 396,
section 397, or section 436 of the Indian Penal Code, if
committed in a disturbed area.
3…………………………………………..
4. Any conspiracy to commit or any attempt to commit or
any abetment of any of the offences specified in items 1 to
3.
The Act provides by some of the sections which need not be
set out, a special procedure for trial under it. Thus the
trial is to be without a jury even in case,% which are
triable by a jury. Again, the Tribunal is to follow the
procedure laid down for the trial of warrant cases by a
Magistrate,. instituted otherwise than on a police report
and the procedure for committal for trial is omitted.
Further, a Judge presiding over a Tribunal may act on the
evidence recorded by his predecessor. The procedure
provided by the Act is thus clearly less beneficent to an
accused than the normal procedure under the Code of Criminal
Procedure, which would have to be adopted for his trial if
the Act had not been passed. The learned Advocate-General
of West Bengal, appearing for the respondent, the State of
West Bengal, did not contend to the contrary. The Act,
therefore, provides a disadvantageous and so, a
discriminatory procedure for the persons who come under its
scope.
We turn now to the facts of this case. On September 12,
1952, the Government of West Bengal issued a notification
under s. 2(b) of the Act declaring the whole area within the
jurisdiction of Kakdwip and Sagar police-stations to be a
disturbed area and specified the period from January 1,
1948, to March 31, 1950, to be the period during which the
notification was to have effect.
The Special Public Prosecutor Kakdwip cases, of the
Government of West Bengal filed a complaint against the
appellants and several other persons as a result of the
proceedings taken by that Government in case
665
No. 1 of Judicial Department Notification No. 5916 dated
October 24, 1952. The date of the complaint does not appear
from the record. The case against the appellants and the
-other persons appears to be that, between the dates
mentioned in the Notification Of September 12, 1952, they
were among the leaders of the violent form of a movement
called the Tebhaga movement, in the Kakdwip area and they,
with the others, led the movement to kill the landlords and
jotdars and burn down their houses, so that the bhagchasis,
that is, the cultivators who cultivated the lands of the
landlords and jotdars on the basis of getting a share of the
crop produced, might obtain full control over the lands they
cultivated and the object of the movement included offering
resistance to and killing the police if they intervened, and
burning down school houses where the police frequently
camped.
On the aforesaid complaint, on March 3, 1958, proceedings
were started against the appellants under the Act. After
examining 99 witnesses the learned Judge presiding over the
Tribunal hearing the case, framed a charge against them on
May 16, 1958, under s. 120 B, read with ss. 302 and 436, of
the Indian Penal Code. These offences are included in items
Nos. 2 and 4 of the Schedule.
On May 26, 1958, the appellants moved the High Court at
Calcutta under art. 227 of the Constitution and s. 439 of
the Code of Criminal Procedure for an order quashing the
proceedings against them on certain grounds. I propose to
deal in this judgment with one of these grounds only. It
was said that s 2(b) of the Act in so far as it allowed the
Government to declare an area in which ” there was “ dis-
turbance in the past, to be a disturbed area, offends art.
14. of the Constitution as it then discriminates between
persons who had committed the same -offences in that area
within the specified period but whose trials had been
concluded before the notification and others similarly
situated but whose trials had not been so concluded. It was
said that the former class of persons had the advantage of
the normal procedure while
85
666
the latter, in whom the appellants are included, were to
tried by a less advantageous procedure.
The application of the appellants was heard by a bench of
the High Court consisting of Mitter and Bhattacharya, JJ.
These learned Judges came to entertain different views on
the question. Mitter, J., thought that the Act had been
given a retrospective operation by permitting the
declaration of an area as a disturbed area for a past period
but that the Act dealt only with procedure and procedural
alterations were always ,retrospective. Bhattacharya, J.,
seems to have been of the view that a retrospective
operation even of a procedural statute is not permissible if
such operation results in the statute offending art. 14 ;
that the principle of the retrospective operation of a
procedural statute is not available to by-pass the
constitutional safeguard guaranteed by art. 14.
In view of this difference of opinion, the matter was
referred to a third learned Judge of the Court, namely, Sen,
J. He was of the view that the retrospective operation of
the Act, by which he meant the application of the procedure
laid down in it to cases in respect of offences committed
before the Act the trial of which had not been concluded,
did not offend art. 14; that there was no fundamental right
to a particular procedure for trial and alterations in the
procedural law were always retrospective unless the contrary
was indicated. He further observed, ” The change in the
procedure made by a statute in respect of offences falling
within a prescribed reasonable classification, affects all
pending cases of that class; and so long as all pending
cases within the class are tried under the special
procedure, there is no discrimination.” In the result, the
appellant’s application was refused. They have now appealed
to this Court.
It seems to me that the learned Judges of the High Court
were unduly oppressed by considerations of the retrospective
operation of the Act. The question is not whether the Act
is prospective or retrospective in its operation. Nor is it
the question whether the Act deals with procedures or
substantive rights. The only question is whether the Act
operates in respect only of
667
a class of persons and if so, whether the classification is
justifiable. Whether a law offends art. 14, does not depend
upon whether it is prospective or retrospective. There is
nothing in art. 14 to indicate that a law operating
retrospectively cannot offend it. It is possible both for
prospective and retrospective statutes to contravene the
provisions of that article. It is not necessary therefore
to consider whether the Act is prospective or retrospective
or whether it concerns procedure or substantive rights.
The general rule is that a law must apply to all persons.
But it is permissible within certain well recognised limits,
to validly legislate for a class of persons. The test for a
valid classification is well known. It may be read from the
judgment in the recent case of Sri Ram Krishna Dalmia v.
Shri Justice S. R. Tendolkar 1. Das, C.J., said at p.
298:
” In determining the validity or otherwise of such a statute
the court has to examine whether such classification is or
can be reasonably regarded as based upon some differentia
which distinguishes such persons or things grouped together,
from those left out of the group and whether such
differentia has a reasonable relation to the object sought
to be achieved by the statute Where the court finds that the
classification satisfies the tests, the court will uphold
the validity of the law.”
Again at p. 299 he observed:
“A statute may not make any classification of the persons or
things for the purpose of applying its provisions but may
leave it to the discretion of the Government to select and
classify persons or things to whom its provisions are to
apply……………………………………………….
the court will strike down the statute if it does not lay
down any principle or policy for guiding the exercise of the
discretion by the Government in the matter of selection or
classification
…………………………………………………..
In such a case the court will strike down both the law as
well as the executive action taken under such law.”
(1) [1959] S.C.R. 279.
668
The statute before us has made a classification in regard to
offences. It applies only to those offences which are
mentioned in the Schedule. I will assume that this
classification satisfies the test and is good. I wish to
observe here that in this case I am considering the validity
of the statute only in so far as it is concerned with an
offence committed in a disturbed area. Such an offence
comes under items 2 and 4 of the Schedule which alone,
therefore, I have set out. Now, the Act leaves it to the
Government to decide which is a disturbed area and to make a
classification on the basis of areas. I will also assume
that the Act is not invalid in so far as it leaves it to the
Government to make this classification; that it lays down a
principle or policy, namely, extensive disturbance of public
peace and tranquillity for guiding the Government in making
this classification.
Now, s. 2(b) empowers the Government to declare an area to
be a disturbed area where ” there was “ extensive
disturbance of the public peace and tranquillity in the
past. The Government has however to mention in the
notification making such a declaration, the period during
which it shall have effect; in other words, the notification
has to specify the period in which in the area declared a ”
disturbed area “, disturbance of the public peace and
tranquillity had taken place. The area,so declared a ”
disturbed area ” becomes a ” disturbed area “ within the
meaning of the Act for that period only. In such a case
only such of the offences mentioned in items Nos. 2 and 4 of
the Schedule as were committed in the specified area during
the specified period come under the scope of the Act. This
is the kind of declaration of a ” disturbed area ” that we
have in this case.
The effect of this kind of declaration is that it makes the
Act applicable only to persons who have committed any of the
specified offences in the area and during the period
indicated. As will presently be seen, it does not apply to
all such persons. This being a case, where there had been
disturbances in the area in the past, the period mentioned
in the declaration must be a period in the past. That is
what happened in the present case. The declaration was
made on
669
September 12, 1952, and the period specified was from
January 1, 1948, to March 31, 1950. It is possible in such
a case that many of the persons who had committed the
offences within the past period specified in the
declaration, might have already been tried and their trials
concluded before the declaration was made. They would in
such circumstances have been tried according to the normal
procedure provided by the Code of Criminal Procedure. To
them the Act does not apply. Other persons, like the
appellants who committed the same offences in the same
period and in the same area but whose trials had not been
concluded before the declaration was made, have to be tried
under the disadvantageous procedure prescribed by the Act.
The effect of the Act therefore is to group into one class,
persons committing the specified offences in the specified
area and in the specified period whose trials had not been
concluded before the making of the declaration. It is only
to them that the Act applies. This is where the difficulty
arises. There does not seem to be any intelligible
differentia by which such persons can be differentiated from
others who committed the same offences in the same area and
during the same period but whose trials had been concluded
before the making of the declaration. The object of the
Act, as earlier stated, is to secure speedy trials in the
interests of the security of the State and the maintenance
of the public peace and tranquillity in view of the
extensive disturbance of the public peace and tranquillity
in an area. It would be necessary to carry out this object
that both the classes of persons, namely, those whose trials
had been concluded as also those whose trials had not been
concluded, should be treated according to the same law. The
only distinction between the two classes is that in one case
the trials had been concluded while in the other, they had
not been. Now that is not a differentia, if it may be
called so, which has any reasonable relation to the object
of the Act. lndeed, in order to secure that object, it is
necessary to place both the classes of persons in the same
situation. By permitting a declaration classifying offences
committed in the past, the Act makes a classification which
cannot stand the
670
well-known test which I have read from Ram Krishna Dalmia’s
case (1).
It cannot be said that the object of the Act is only to
provide speedy trial and that therefore as there is of no
question of speedy trial in the cases where the trial had-
already been concluded there is an intelligible differentia
between such cases and those where the trial had not
been concluded. It is quite plain that the object of the
Act is not simply to provide a speedy trial. Indeed, all
offences require speedy trial. The object of the Act is
expressly to provide speedy trial of certain offences
committed in a specified area and during a specified period
because ” it is expedient in the interests of the security
of the State, the maintenance of public peace and
tranquillity “ to do so. The classification by areas is
based on disturbance in an area and the necessily of
restoring peace there. Such being the object, a distinction
made between the cases were the trials had been concluded
and the cases where the trials had not been concluded, is
not a distinction which has any rational relation to that
object.
The learned Advocate-General for the State of West Bengal
contended that this case is covered by the decision of this
court in Gopi Chand v. Delhi Administration (2). There, no
such difficulty as arises in this case, had arisen. I
therefore do not think that that case is of any assistance.
In my view, s. 2(b) of the Act in so far as it permits an
area which was a disturbed area in the past to be declared a
disturbed area for the purposes of the Act, offends art. 14
of the Constitution and is therefore unconstitutional and
void. The declaration in the present case was made under
that portion of s. 2(b) and it cannot be sustained. That
portion of the Act and the Notification of September 12,
1952, must therefore be held to be void.
In the result I would allow the appeal.
ORDER OF COURT
In view of the opinion of the majority, the order passed by
the High Court is confirmed and the appeal is dismissed.
(1) [1959] S.C.R. 279. (2) A.I.R. 1959 S.C. P. 609.
671