http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: DHIRENDRA KUMAR MANDAL

       Vs.

RESPONDENT: THE SUPERINTENDENT ANDREMEMBRANCER  OF  LEGAL AFFAIRS TO THE

DATE OF JUDGMENT: 20/04/1954

BENCH: MAHAJAN, MEHAR CHAND (CJ) BENCH: MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. BOSE, VIVIAN BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA

CITATION:  1954 AIR  424            1955 SCR  224  CITATOR INFO :  F          1958 SC  86  (22)  F          1958 SC 538  (12)  RF         1964 SC 370  (6)  RF         1988 SC1531  (185)

ACT: Constitution  of -India, Art. 14-Scope and construction  of- Meaning of reasonable classification-Criminal Procedure Code (Act  V  of  1898), ss. 269(1),  536-Notification  under  s. 269(1)-Validity  of-Denial of the right to be tried by  jury to  certain individuals-Right retained in the case of  other individuals  committing the same or similar  offences-Defect in trial- Whether cured by s. 536.

HEADNOTE: Trial by jury is undoubtedly one of the most valuable rights which an accused can have but it has not been guaranteed  by the  Constitution.  Section 269(1) of the Code  of  Criminal Procedure  is  an enabling section and  empowers  the  State Government to direct (1) 75 I.A. 41 (2) 76 1,A. 10 225 that the trial of all offences or of any particular class of offences  before any Court of Session shall be by jury.   It has  the  further power to revoke or alter  such  an  order. There  is nothing wrong if the State discontinues  trial  by jury  in any district with regard to all or  any  particular class  of offences.  The section does not empower the  State Government to direct that the trial of a particular case  or of  a particular accused person shall be by jury  while  the trial of other persons accused of the same offence shall not be  by  jury.  The section does not  envisage  that  persons accused of the, same offence but involved in different cases can  be  tried  by  the Court  of  Session  by  a  different procedure namely some of them by jury and some of them  with the help of assessors.  The ambit of the power of revocation or  alteration is co-extensive with the power  conferred  by the opening words of the section and cannot go beyond  those

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

words. The impugned notification of the year 1947 revoking the pre- vious  two notifications had denied to  certain  individuals the right to be tried by jury while retaining that right  in the case of other individuals who had committed the same  or similar offences and thus it had travelled beyond the powers conferred  on the State Government by section 269(1) of  the Code   of   Criminal  Procedure  and  was  thus   void   and inoperative. The impugned notification also contravened the provisions of article   14   of   the   Constitution   inasmuch   as   the classification  was not based on some real  and  substantial distinction  bearing a just and reasonable relation  to  the objects  sought  to be attained but was made  arbitrary  and without any substantial basis. The impugned notification did not in express terms  indicate the  grounds on which this set of cases had been  segregated from other sets of cases falling under the same sections  of the Indian Penal Code. The  classification as formulated by the High Court  had  no relation  to the object in view, that is, the withdrawal  of jury trial in these cases. The  contention  that the defect in the trial, if  any,  was cured  by section 536 of the Code of Criminal  Procedure  as this objection was not taken in the trial Court, was without force as section 536 postulates irregularities at the  trial after  the commencement of the proceedings but it  does  not concern itself with a notification made under section 269(1) which  travels  beyond the limits of that section  or  which contravenes article 14 of the Constitution. This   objection  which  goes  to  the  very  root  of   the jurisdiction  of  the Court can be taken notice  of  at  any stage. The impugned notification issued in 1947 was on the lines of the  Ordinance  that was in question in Anwar  Ali  Sarkar’s case [1952] S.C.R. 284). The State of West Bengal v. Anwar Ali Sarkar ([1952]  S.C.R. 284),  Queen-Empress  v.  Ganapathi  Vannianar  and   Others (I.L.R.  23  Mad. 632), Syed Kasim Razvi v.  The  State,  of Hyderabad ([1953] 29 226 S.C.R.  589),  Habeeb Mahomed v. The State  of  Hyderabad  ( [1953]  S.C.R. 661), Lachmandas Kewalram Ahuja v. The  State of  Bombay  ([1952] S.C.R. 710), Kathi Raning Rawat  v.  The State of Saurashtra ([19521 S.C.R. 435), Kedar Nath  Bajoria v. The State of West Bengal ( (1954] S.C.R. 30) referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 48  of 1952.   Appeal  under  article 134(1) (c) of the  Constitution  of India  from  the Judgment and Order dated  the  21st  March, 1952, of the High Court of Judicature at Calcutta (Das Gupta and  Lahiri JJ.) in Criminal Appeal No. 77 of  1950  arising out of the Judgment and Order dated the 29th April, 1950, of the  Court  of  the Additional Sessions  Judge,  Burdwan  in Session Trial No. I of 1950. N.C. Chakravarti and Sukumar Ghose for the appellant. B.   Sen and I. N. Shroff for the respondent. G.   N. Joshi and P. G. Gokhale for the Intervener (The Union of India). 1954.  April 20.  The Judgment of the Court was delivered by MEHR  CHAND  MAHAJAN C.J.-This is an  appeal  under  article

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

134(1) (c) of the Constitution of India from the judgment of the  High Court at Calcutta dated the 21 st of March,  1952, whereby  the  High  Court  upheld  the  conviction  of   the appellant  under  section 467 of the Indian Penal  Code  but reduced  the  sentence  passed upon him  by  the  Additional Sessions Judge of Burdwan. The appeal concerns one of a series of cases known generally as  " The Burdwan Test Relief Fraud Cases " which had  their origin in the test relief operations held in the District of Burdwan in 1943, during the Bengal famine of that year.  The acute  scarcity and the prevailing distress of  the  famine- stricken people in the district called for immediate  relief and  test relief operations were undertaken by the  District Board in pursuance of the advice of the District Magistrate. The Government of Bengal sanctioned four lakhs of rupees  as advance   to  the  District  Board  for  such  test   relief operations.  The District Board, however, instead of 227 conducting  the  relief  work  directly,  appointed  several agents  on  commission basis through whom  the  test  relief operations  were carried out.  This was in ’Clear  violation of  the Bengal Famine Code and the Famine Manual, 1941,  and as exceedingly large sums were being spent the suspicions of the Government were aroused about the bona fides of the test relief  work carried out through their agent&.  This led  to an  inquiry  and  as a result of  this  several  cases  were started against various persons and the appellant’s case  is one of them. The  Government reached the decision that these  cases  were not fit for trial by jury and accordingly on 24th  February, 1947, a notification was issued for trial of these cases  by the  Court  of  Sessions with the  aid  of  assessors.   The notification is in these terms:- "No.  4591-17th  February, 1947.-Whereas by  a  notification dated  the  27th  March, 1893,  published  in  the  Calcutta Gazette  of the same date, it was ordered that on and  after the  1st day of April, 1893, the trial of  certain  offences under  the Indian Penal Code before any Court of Session  in certain districts including the District of Burdwan shall be by jury; "And  whereas  by notification No. 3347 1,  dated  the  22nd September,  1939,  published at page 2505 of Part I  of  the Calcutta Gazette of the 28th September, 1939, it was ordered that on and from the 1st day of January, 1940, the trial  of certain  other offences under the Indian Penal  Code  before any Court of Session shall be by jury;    "And  whereas  certain  persons  ’are  alleged  to   have committed  offences under sections 120-B, 420,467, 468,  471 and  477-A of the Indian Penal Code in a set of cases  known as the Burdwan Test Relief Fraud Cases’ of whom the  accused persons  in  two  cases, namely Emperor  v.  Dhirendra  Nath Chatterjee  and Others and (2) Emperor v. Golam Rahman   and Others,  have  been  committed to the Court  of  Session  at Burdwan  for trial and the accused persons in the  remaining cases  may  hereafter  be committed to the  said  Court  for trial;  "Now,  therefore,  the Governor in exercise  of  the  power conferred by subsection (1) of section 269 of the 228 Code  of Criminal Procedure, 1898, is pleased to revoke  the said  notifications in so far as they apply to the trial  of the  offences with which the accused in the said  cases  are charged in the Court of Session." In  pursuance of this notification the appellant along  with six  others  was  sent up for trial  before  the  Additional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

Sessions  Judge  of Burdwan.  The charge  against   him  was under  section  420 read with section  120-B,  Indian  Penal Code, for conspiracy to cheat the District Board of  Burdwan and  some  of  its officers in charge  of  the  test  relief operations  between the 21st May, and the 21st  July,  1943. The appellant was also charged on 24 counts of forgery under section  467,  Indian  Penal  Code  and  the  case  for  the prosecution  against the appellant on these counts was  that he committed forgery by putting his own thumb impressions on pay  sheets  on which the thumb impressions of  persons  who received  payment  for  work  done  on  a  road  which   was constructed as part of a scheme for the relief of the people in  Burdwan  ought to have been taken.  He was one  ’of  the persons appointed by Jnanendra Nath Choudhuri, an agent, and it was his duty to disburse the money to the mates in charge of the gangs and to take thumb impressions on pay sheets  in token  of  receipt  of payment.  It  was  alleged  that  the appellant  put  his own thumb impressions in  several  cases mentioned in the charges with full knowledge that no payment had been made and put names of imaginary persons against the thumb  impressions to make it appear that payments had  been made  to  real  persons and by  this  process  had  obtained wrongful gain for himself and for his employers. The   appellant’s  plea  in  defence  was  that  the   thumb impressions  were  not his and alternatively  if  the  thumb impressions  were  his,  he put them  on  the  authority  of persons.   whose   names  were  shown  against   the   thumb impressions  and that in putting these thumb impressions  he did not act dishonestly or fraudulently. The   learned  Additional  Sessions  Judge   acquitted   the appellant  and  all other accused persons on the  charge  of conspiracy to cheat under section 420 read with 229 section  120-B, Indian Penal Code.  He,  however,  convicted the  appellant  under eleven specific  charges  of  forgery, under  section 467, Indian Penal Code, and sentenced him  to undergo rigorous imprisonment for a period of one year.   On appeal  the  conviction  of the appellant  was  affirmed  in regard to nine counts only and ’the sentence was reduced. The main point urged by the appellant in the High Court  was that  the trial was vitiated inasmuch as he was  denied  the equal   protection   of  laws  under  article  14   of   the Constitution.   The High Court rejected this contention  and held  that  the  appellant’s  trial  before  the  Additional Sessions  Judge with the aid of assessors was a valid  trial in accordance with law.  Das Gupta J.   who  delivered   the judgment of the Court observed as  follows :-      "By  this notification, the Government acting  in  .the exercise of powers under section 269 of the Code of Criminal Procedure  formed  one class of all the cases known  as  the Burdwan  Test Relief Cases, in which some persons had  prior to  the date of the notification alleged to  have  committed some  specified  offences and withdrew from these  trial  by jury  so that these became triable by the aid of  assessors. The  question is whether this classification  satisfied  the test  that  has  been laid down,  mentioned  above.   In  my judgment, these cases, which are put in one class, have  the common  feature  that  a  mass  of  evidence  regarding  the genuineness of thumb impressions and regarding the existence or  otherwise of persons required consideration.   This  was bound  to  take  such  a long time that  it  would  be  very difficult,  if  not impossible, for a juror to  keep  proper measure of the evidence.  This common feature  distinguished this  class  from other cases involving offences  under  the same sections of the Indian Penal Code.  The  classification

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

is in my judgment reasonable -with respect to the difference made,  viz.,  the  withdrawal  of  jury  trial  and  is  not arbitrary or evasive." The  appellant  made an application to the  High  Court  for leave to appeal to this Court and the leave was allowed.  It was contended at the time of the leave 230 that  by a notice of revocation the State  Government  could not  deprive  particular persons of the right of  trial  ’by jury  leaving  other persons charged of the  same  class  or classes of offences with a right to be tried by a jury.  The Bench  thought  that  this  was  a  point  of   considerable difficulty and was a fit one to be decided by this Court. The  learned  counsel  for the appellant  urged  two  points :before  us.  In the first instance, he contended  that  the notification  was in excess of the powers conferred  on  the State  Government  under  section  269(1)  of  the  Code  of Criminal  Procedure  and  that  it  travelled  beyond   that section.  Secondly it was urged that the notification denied the  appellant equal protection of the laws and was thus  an abridgement of his fundamental right under article 14 of the Constitution  and  the  view  of the  High  Court  that  the classification was not arbitrary or evasive was incorrect. At this stage it may be mentioned that the Union Government, at its request, was allowed to intervene in this appeal,  in view of the contention raised by the appellant that  section 269(1) of the Code of Criminal Procedure was void by  reason of its being inconsistent with the provisions of Part III of the   Constitution.   The  intervention,   however,   became unnecessary  because the learned counsel for  the  appellant abandoned  this  point at the hearing and did not  argue  it before us. As  regards the two points urged by the learned counsel,  it seems  to  us  that both the  contentions  raised  are  well founded.   The notification, in our opinion, travels  beyond the  ambit  of  section  269(1)  of  the  Code  of  Criminal Procedure.  This section is in these terms :- "The State Government may by order in the Official  Gazette, direct that the trial of all offences, or of any  particular class of offences, before any Court of Session, shall be  by jury in any district, and may revoke or alter such order."      Though the trial by jury is undoubtedly one of the most valuable rights which the accused can have, it has not  been guaranteed by the Constitution.  Section 269(1) of the  Code of Criminal Procedure is an enabling 231 section and empowers the State Government to direct that the trial of all offences or of any particular class of offences before  any Court of Session shall be by jury.  It  has  the further  power to revoke or alter such an order.   There  is nothing wrong if the State discontinues trial by jury in any district  with  regard  to all or any  particular  class  of offences, but the question is whether it can direct that the trial of a particular case or of a’ particular accused shall be in the Court of Session by jury while in respect of other cases involving the same offence the trial shall be by means of  assessors.  It appears to us that the section  does  not empower  the State Government to direct that the trial of  a particular  case or of a particular accused person shall  be by jury while the trial of other persons accused of the same offence  shall not be by jury.  On a plain  construction  of the  language employed in the section it is clear  that  the State Government has been empowered to direct that the trial of  all  offences  or of any Particular  class  of  offences before  any  Court  of  Session shall  be  by  jury  in  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

district.   The section does not take notice  of  individual accused or of individual cases.  It only speaks of  offences or  of a particular class of offences, and does  not  direct its attention to particular cases on classes of cases and it does  not envisage that persons accused of the same  offence but involved in different cases can be tried by the Court of Session  by a different procedure, namely, some of  them  by jury and some of them with the help of assessors.  The ambit of  the  power of revocation or alteration  is  co-extensive with the power conferred by the opening words of the section and cannot go beyond those words.  In exercise of the  power of  revocation also the State Government cannot pick  out  a particular case or set of cases and revoke the  notification qua  these  cases  only and leave  cases  of  other  persons charged  with  the  same offence triable  by  the  Court  of Session  by jury.  This was the construction plated  on  the section by Mr. Justice Chakravarti and was endorsed by  some of us in this Court in The State of West Bengal v. Anwar Ali Sarkar(1). it was there pointed out that a jury trial could (1)  [1932] S.C.R. 284, 326, 232 not  be  revoked  in  respect of  a  particular  case  or  a particular accused while in respect of other cases involving the same offences that order still remained in force.      The notification in this case clearly refers to accused persons  involved in the " Burdwan Test Relief  Fraud  cases and  does  not  remove from the category  of  offences  made triable  by jury offences under sections 120-B,  467,468,477 etc., no matter by whom committed or even committed within a particular  area.   The  cases of  persons  other  than  the accused and involved in offences under sections 120-B,  420, 467,  468,  477 are still triable by a Court of  Session  by jury. The  language of the earlier notification of 1893,  and  of- the  second notification of 1939, by which it  was  directed that  the trial in Court of Session of certain  offences  in certain districts shall be by jury is significant and is  in sharp contrast to the language used in the operative portion of  the impugned notification.  By the notification  of  the 27th  March, 1893, it was ordered that on or after the  last day of April, 1893, the trial of certain offences under  the Indian  Penal  Code before any Court of Session  in  certain districts  including  the District of Burdwan  shall  be  by jury.   It  will be noticed that this  notification  has  no reference to cases of any individuals or particular  accused persons;  it is general in its terms.  By  the  notification dated  the 22nd September, 1939, it was ordered that on  and from  the  1st day of January, 1940, the  trial  of  certain other offences under the Indian Penal Code before any  Court of  Session shall be by jury.  This notification is also  in general terms.  In other words, the first notification  made out a schedule of offences and directed that those offences, irrespective  of  the fact by whom they were  committed,  be tried   by  a  Court  of  Session  by  jury.    The   second notification added a number of other offences to that  list. The revocation order does not subtract any offences from the list; it leaves them intact.  What it does is that it denies to  certain individuals the right to be tried by jury  while retaining  that right in the case of other  individuals  who have  committed  the same or similar offences  and  in  this respect it travels beyond                             233 the  power  conferred  on the State  Government  by  section 269(1)  of the Code of Criminal Procedure, and is thus  void and inoperative.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

We are further of the opinion that the notification is  also bad  as it contravenes the provisions of article 14  of  the Constitution.   The High Court negatived this contention  on the  ground that the classification made for  withdrawal  of jury  trial  in these cases was reasonable and  was  neither arbitrary nor evasive.  It was said that these cases  formed one class of cases and that they had the common feature that a  mass  ’of  evidence regarding the  genuineness  of  thumb impressions  and  regarding the existence  or  otherwise  of persons  required consideration and that this was  bound  to take  such a long time that it would be very  difficult,  if not  impossible, for a juror to keep proper measure  of  the evidence, and that these common features distinguished  this class of cases from other cases involving offences under the same sections of the Indian Penal Code. Now it is well settled that though article 14 is designed to prevent  any person or class of persons from  being  singled out as a special subject for discriminatory legislation,  it is   not  implied  that  every  law  must   have   universal application to all persons who are not by nature, attainment or  circumstance, in the same position, and that by  process of  classification  the State has power of  determining  who should  be regarded as a class for purposes  of  legislation and  in relation to a law enacted on a  particular  subject; but the classification, however, must be based on some  real and  substantial distinction bearing a just  and  reasonable relation to the objects sought to be attained and cannot  be made  arbitrarily  and without any substantial  basis.   The notification,  in  express  terms,  has  not  indicated  the grounds on which this set of cases has been segregated  from other  set of cases falling under the same sections  of  the Indian  Penal  Code.  The learned Judges of the  High  Court however  thought  that this set of cases was  put  into  one class  because of their having the "common features  that  a mask; of evidence regarding the genuineness 234 of   thumb  impressions  and  regarding  the  existence   or otherwise  of  persons required consideration and  this  was bound  to  take  such  a long time that  it  would  be  very difficult,  if  not impossible, for a juror to  keep  proper measure of the evidence." In our opinion this classification has  no  relation  to  the object  in  view,  that  is,  the withdrawal of jury trial in these cases.  There can be  mass of  evidence  in  the case of persons accused  of  the  same offence  in  other  cases  or  sets  of  cases.   The   mere circumstance of a mass of evidence, and the suggestion  that owing  to  the length of time the jurors might  forget  what evidence  was led before them furnishes no reasonable  basis for denying these persons the right of trial by jury.  It is difficult  to  see  how assessors can be  expected  to  have better memory than jurors in regard to cases in which a mass of  evidence  has to be recorded and which may take  a  long time.   It is a matter of daily experience that jury  trials take  place  in a number of cases of  dacoity,  conspiracy,, murder  etc. where the trial goes on for months  and  months and  there  is a mass of evidence.  On that ground  alone  a jury trial is not denied, as that is not a reasonable  basis for denying it.  The memory of jurors, assessors, judges and of  other  persons who have to form their  judgment  on  the facts  of  any case, can afford no reasonable basis  for  a. classification  and  for denial of equal protection  of  the laws.   Similarly, the quantum of evidence in  a  particular case  can  form no reasonable basis for  classification  and thus  can have no just relation to the object in view.   The features  mentioned by the High Court can be common  to  all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

cases of forgery, conspiracy, dacoity, etc.    Mr.  Sen for the respondent State contended in the  first instance, that the defect in the trial, if any, was cured by the  provisions  of  section 536 of  the  Code  of  Criminal Procedure  as  this  objection was not taken  in  the  trial Court.   In our opinion, this contention is  without  force. Section 536 postulates irregularities at the trial after the commencement  of  the proceedings but it  does  not  concern itself with a notification made under section 269 (1)  which travels beyond the limits of that 235 section or which contravenes article 14 of the Constitution. The chapter of the Code of Criminal Procedure in which  this section    is   included   deals   with   mere    procedural irregularities  in  the procedure committed by a  Court  and envisages that when an objection is taken, the Court is then enabled  to  cure the irregularity.   This  argument  cannot apply to a case like the present.  The Court had no power to direct  a trial by jury when the Government had revoked  its notification  with reference to these cases.   Moreover  the nature  of  the objection is such that it goes to  the  very root of the jurisdiction of the Court, and such an objection can  be  taken  notice of at any,  stage.   Mr.  Sen  placed reliance  on  a Bench decision of the Madras High  Court  in Queen-  Empress v. Ganapathi Vannianar and  Others(1).   The matter  there  was  not considered from the  point  of  view mentioned  above  and  we do not think that  that  case  was correctly decided. Mr. Sen further argued that in any case the notification  in this  case was issued in February, 1947, three years  before the Constitution came into force, and that though the  trial had  not  concluded  before the coming  into  force  of  the Constitution,  the  trial that had started by the  Court  of Session  with the help of assessors was a good trial and  it cannot  be said that it was vitiated in any manner.  Now  it is obvious that if the assessors here were in the status  of jurors  and gave the verdict of "not guilty" as they did  in this  case,  the accused would have  been  acquitted  unless there  were  reasons  for  the  Sessions  Judge  to  make  a reference  to  the High Court to quash the  trial.   Clearly therefore  the  accused  was  prejudiced  by  a  trial  that continued  after  the inauguration of the  Constitution  and under a procedure which was inconsistent with the provisions of  article  14 of the Constitution.  It was  also  vitiated because the notification which authorised it also  travelled beyond  the  powers  conferred on the  State  Government  by section 269 (1) of the Code of Criminal Procedure. Mr.  Sen,  for the contention that the continuation  of  the trial after the inauguration of the Constitution (1)  I.L.R. 23 Mad. 632. 236 under  the notification of 1947, even if  that  notification was  discriminatory  in character, was not  invalid,  placed reliance  on  two decisions of this Court - (1)  Syed  Kasim Razvi v. The State of Hyderabad(1) and (2) Habeeb Mahomed v. The State of Hyderabad(2).  In our opinion, these decisions, instead of helping his contention, completely negative it so far as the facts of this case are  concerned.  In both these decisions,  it  was  pointed out that  for  the  purpose  of determining   whether  the  accused  was  deprived  of   the protection  under article 14, the Court has to see first  of all, whether after eliminating the discriminatory provisions it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and, if  so, whether that was actually done in the particular case.   Now

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

it is obvious that it is impossible to convert a trial  held by  means of assessors into a trial by jury and a  trial  by jury could not be introduced at the stage when the procedure prescribed  by  the notification  became  discriminatory  in character,  It  is  not  a  case  where  the  discriminatory provision of the law can be separated from the rest.  Again, a fair measure of equality in the matter of procedure cannot be  secured  to  the  accused in this  kind  of  cases.   As pointed,  out  in Syed Kasim Razvi’s case(1) if  the  normal procedure is trial by jury or with the aid of assessors, and as  a matter of fact there was no jury or assessor trial  at the  beginning, it would not be possible to introduce it  at any’  subsequent  stage’ and that having  once  adopted  the summary  procedure  it  is  not possible to  pass  on  to  a different  procedure  at a later date.  In  such  cases  the whole trial would have to be condemned as bad.  The same was the view taken by this Court in Lachmandas Kewalram Ahuja v. The  State  of  Bombay  (1).  That  case  proceeded  on  the assumption that it was not possible for the Special Court to avoid  the discriminatory procedure after the 26th  January, 1950.   Therefore  the  trial  was bad.  In  view  of  these observations, it is not possible to accept this part of  Mr. Sen’s contention. (1) [I953] S.C.R. 589.        (3) [1952]S.C.R. 710. (2)  [1953] S.C.R. 661. 237 Mr. Sen, in his quiet manner, faintly suggested that in view of  the decisions of this Court in Kathi Ranig Rawat v.  The State  of Saurashtra(1) and Kedar Nath Bajoria v. The  State of  West  Benga(2)the decision of this Court  in  Anwar  Ali Sarkar’s  case  (3), in which it was pointed  out  that  the State  Government could not pick out a particular  case  and send  it  to Special Court for trial, had lost much  of  its force.   It seems to us that this suggestion is based  on  a wrong assumption that there is any real conflict between the decision  in Anwar Ali Sarkar’s case(3) and the decision  in the  Saurashtra  case(1)  or  in  the  case  of  Kedar  Nath Bajoria(2).   It has been clearly pointed out by this  Court in  Kedar  Nath  Bajoria’s case that  whether  an  enactment providing  for  special procedure for the trial  of  certain offences is or is not discriminatory and violates article 14 of  the Constitution must be determined in each case  as  it arises,  and no general rule applicable to all cases can  be laid  down.   Different  views have been  expressed  on  the question  of  application  of article 14 to  the  facts  and circumstances of each case but there is no difference on any principle  as to the construction or scope of article 14  of the  Constitution.   The  majority judgment  in  Kedar  Nath Bajoria  v. The State of West Bengal(2) distinguished  Anwar Ali Sarkar’s Case(3) on the ground that the law in Bajoria’s case(2) was based on a classification which, in the  context of the abnormal post-war economic and social conditions, was readily  intelligible and obviously calculated  to  subserve the  legislative  purpose,  but  did  not  throw  any  doubt whatsoever on the correctness of that decision.  The present notification is more on the lines of the Ordinance that  was in  question  in  Anwar  Ali Sarkar’s  case(3)  and  has  no affinity  to the Ordinance and the  attending  circumstances that  were  considered in the Saurashtra case(1) or  in  the case of Kedar Nath Bajoria(2) and in the light of that deci- sion  it must be held that the notification issued  in  1947 became  discriminatory in character on coming into force  of the Constitution and was hit by article 14 of the Constitution. (1)  [1952] S.C.R. 435.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

(2)  [1954] S.C.R. 30. (3) [1952) S.C.R. 284. 238 The  result  therefore is that the trial  of  the  appellant after the 26th January, 1950, by the Sessions Judge with the aid  of assessors was bad and must therefore be quashed  and the  conviction  set aside.  In our opinion,  it  would  not advance  the ends of justice if at this stage a fresh  trial by  jury  is ordered in this case.  We therefore  allow  the appeal, set aside the conviction of the appellant and direct that he be set free.                       Appeal allowed.