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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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(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

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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

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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

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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

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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