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PETITIONER: KEDAR NATH BAJORIA

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL.HARI RAM VAIDV.THE STATE OF WEST BE

DATE OF JUDGMENT: 22/05/1953

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM JAGANNADHADAS, B.

CITATION:  1953 AIR  404            1954 SCR   30  CITATOR INFO :  RF         1954 SC 424  (19)  RF         1954 SC 660  (1)  R          1956 SC 246  (69)  RF         1957 SC 503  (18)  R          1958 SC 538  (12,17)  R          1960 SC 239  (6,7,8,9,11,ETC)  R          1960 SC 266  (10,27,31)  R          1960 SC 457  (9,17)  R          1961 SC1602  (12)  RF         1966 SC1061  (13)  R          1974 SC2009  (11,13,15,30,36,37)  F          1974 SC2044  (3)  R          1979 SC 478  (64,69,70)  RF         1992 SC1277  (85)

ACT:     West Bengal Criminal Law Amendment (Special Courts)  Act,  1949,s.  4(1)-Constitution of India, 1950, arts. 14,  20-Law  constituting Special Courts to try special kinds of offences  and  empowering executive to direct particular cases  to  be  tried  by Special Courts-Validity-Equal protection  of  law-  Tests  of validity Reasonable  classification-imposition  of  additional fines Legality.

HEADNOTE: Whether an enactment Providing for special procedure for the trial  of certain offences is or is not  discriminatory  and violative of art. 14 of the Constitution must be  determined in each case as it arises, for no general rule applicable to all cases can safely be laid down. The West Bengal Criminal Law Amendment (Special Courts) Act, 1949,  which  was entitled an Act to provide  for  the  more speedy  trial  and  more  effective  punishment  of  certain offences,  and  the preamble of which declared that  it  was expedient to provide for the more speedy trial and the  more effective punishment of certain offences which were set  out in  the  Schedule  to  the  Act,  empowered  the  Provincial Government (by ss. 2 and 3) to constitute Special Courts  of criminal  jurisdiction  for specified areas and  to  appoint

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Special Judges to preside over such courts.  Section 4 31 of the Act provided that the Provincial Government may, from to time, allot cases for trial to a Special Judge, that  the Special  Judge shall have jurisdiction to try the cases  for the  time  being allotted to him in respect of such  of  the charges  for  offences specified in the Schedule as  may  be preferred against the accused.  The procedure laid down  for trial  by the Special Judges varied in  several  particulars from the ordinary trials.  It was contended on behalf of the appellants  who  were convicted and sentenced by  a  Special Judge  under  the Act that s. 4 of the Act was  void  as  it contravened  article  14  of the  Constitution  in  that  it enabled  the Government to single out a particular case  for reference  to  the  Special Court for  trial  by  a  special procedure which denied to the persons tried under it certain material  advantages  enjoyed  by  those  tried  under   the ordinary procedure : Held, per PATANJALI SASTRI C.J., MUKHERJEA, GHULAM HASAN and JAGANNADHA DAS JJ. (VIVIAN BOSE J. dissenting): (i)  that when a law like the present one is impugned on the ground that it contravenes art. 14 of the Constitution,  the real  issue to be decided is whether, having regard  to  the underlying purpose and policy of the Act as disclosed by its title,  preamble and provisions, the classification  of  the offences for the trial of which the Special Court is set  up and  a  special  procedure is laid down can be  said  to  be unreasonable  or  arbitrary and therefore violative  of  the equal protection clause; (ii) having  regard to the fact that the types  of  offences specified  in the Schedule to the Act were very  common  and widely  prevalent during the post-war period and had  to  be chocked  effectively and speedily tried, the legislation  in question  must  be  regarded  as  having  been  based  on  a perfectly intelligent principle of classification, having  a clear  and  reasonable relation to the object sought  to  be achieved,  and it did not in any way contravene art.  14  of the Constitution ; (iii)the impugned section cannot be said to contravene  art. 14  merely because the Government was vested with a  discre- tion  to allot any particular case to the Special Judge  and is  not required to allot all cases of offences set  out  in the  Schedule,  to the Special Court, for  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.  In the  case of  such  a  statute it makes  no  difference  in  principle whether  the discretion which is entrusted to the  executive Government is to make a selection of individual cases or  of offences, classes of offences or classes of cases.  For,  in either  case,  the  discretion to make the  selection  is  a guided 32 and controlled discretion and not an absolute or  unfettered one and is equally liable to be abused but if it be shown in any  given  case that the discretion has been  exercised  in disregard of the standard or contrary to the declared policy and  object  of  the legislation,  such  exercise  could  be challenged and annulled under art. 14 which includes  within

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its purview both executive and legislative acts. VIVIAN  BOSE  J.-(i) Up to the 26th of  January,  1950,  the impugned law was a good law and the Special Court which  was constituted  to try the present case was  therefore  validly constituted  and  the allotment of this case  to  a  Special Judge  for trial was also lawful.  But the  continuation  of the  trial  after  the  26th January,  1950,  when  the  new Constitution  came into force was illegal as  the  procedure followed after that date was discriminatory at least in  one vital  particular,  namely,  the accused did  not  have  the benefit of a trial by jury which they would have had if  the normal procedure had been followed. (ii)The impugned Act in so far as it makes provision for the setting up of Special Courts and of Special Judges and in so far as it selects classes of offences which can be tried  by them  is,  on the basis of the previous  decisions  of  this court,  valid, but section 4(1) of the Act is bad in so  far as  it empowers the Provincial Government to pick out  cases from  among  the specified classes and to send them  to  the Special Courts and thus discriminate between man and man  in the same class. Held  also,  by  the  Court,  that  under  art.  20  of  the Constitution the accused could not be subjected to any  fine greater  than  that which might have been  imposed  on  them under the law in force when the offence was committed,  even though  the  Act of 1949 empowered the Court  to  inflict  a greater fine. Rao  Shiv Bahadur Singh and Another v. The State of  Vindhya Pradesh ([1953] S.C.R. 1188) followed. Anwar  Ali Sarkar’s case ([1952] S.C.R. 284), Quasim  Ravi’s case  (1953 S.C.R. 589), Lakshmandas Kewalram  Ahuja’s  case ([1952] S.C.R. 710) explained. Saurashtra case ([1952] S.C.R. 435) applied.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  84 and 85 of 1952. Appeals  by  Special Leave granted by the Supreme  Court  of India  on  the 17th September, 1951, from the  Judgment  and Order  dated  the  6th  June, 1951, of  the  High  Court  of Judicature  at Calcutta in Criminal Appeals No. 175 and  176 of 1950, respectively arising                              33 out  of the Judgment and Order dated the 29th August,  1950, of  the Special Court of Alipur, Calcutta, in Case No. 2  of 1949. N.C. Chatterjee (S.  N. Mukherjee and P. N. Mehta, with him) for the appellant in Cr.  Appeall No. 84 of 1952. Ajit Kumar Dutt and Arun Kumar Dutt for the appellant in Cr. Appeal No. 85 of 1952. C.   K. Daphtary, Solicitor-General for India (B. Sen,  with him) for the respondent in both the appeals. 1953.  May 22.  The Judgment of the Court was delivered by PATANJALI  SASTRI  C.  J.-These  are  connected  appeals  by special leave from the order of the High Court of Judicature at Calcutta dated January 6, 1951, confirming the conviction of  the appellants and the sentences imposed on them by  the Special Court, Alipur, Calcutta, constituted under the  West Bengal Criminal Law Amendment (Special Courts) Act, 1949. The first appellant was at all material times the proprietor of the firm of Kedar Nath Mohanlal, Managing Agents of Shiva Jute Press Ltd., an incorporated company having a number  of godowns  at  Cossipore  in  West  Bengal,  and  the   second

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appellant was the Area Land Hiring and Disposals Officer  in the service of the Government of India.  Some of the godowns belonging  to the company were requisitioned by the  Govern- ment  for  military purposes in 1943 and  were  released  in December,  1945.  The appellants, along with two others  who were given the benefit of doubt and acquitted, were charged, with  having  conspired to cheat, and  having  cheated,  the Government  by inducing their officers to pay Rs. 47,550  to the first appellant on behalf of the company as compensation for  alleged  damage  to  the godowns on  the  basis  of  an assessment  made by the second appellant which was false  to the  knowledge of both the appellants.  It was also  alleged that the second appellant recommended 34 the payment of Rs. 1,28,125 to the company for damage caused to  the jute stored in the godowns by leakage of  rain-water through  cracks in the roof which the  military  authorities neglected to repair.  This claim, however, had not been paid as the second appellant’s recommendation was not accepted by the  higher  authorities  who  referred  it  to  the  Claims Commission   for   investigation.    The   appellants   were accordingly  charged  with having committed  offences  under sections  120B and 420 of the Indian Penal Code and  section 5(2)  of  the Prevention of Corruption Act (Act  No.  11  of 1947). The  West  Bengal Criminal Law  Amendment  Act  (hereinafter referred  to  as " the Act ") came into force  on  June  23, 1949,  and, by notification No. 5141-J dated  September  16, 1949,  the West Bengal Government allotted the case  against the   appellants  and  two  others  to  the  Special   Court constituted  by the Government under section 3 of  the  Act. The trial commenced on January 3, 1950, and nine prosecution witnesses  were examined in chief before January  26,  1950, when  the  Constitution came into force.,  After  some  more witnesses were examined, the charges were framed on February 27, 1950.  On June 9, 1950, prosecution evidence was  closed and  the appellants were examined under section 342  of  the Criminal  Procedure Code.  On August 29, 1950,  the  Special Judge  delivered judgment convicting the appellants  on  all the  counts and sentenced them to varying terms of  rigorous imprisonment and fine.  In addition to the sentences imposed under  the  ordinary law the first appellant was  fined  Rs. 50,000  including the sum of Rs. 47,550 received by him,  as required by section 9(1) of the Act. Though  the constitutionality of the Act was not  challenged in  the  High  Court,  Mr.  Chatterjee  on  behalf  of   the appellants made it the principal issue in these appeals.  He contended that the Special Court had no jurisdiction to  try and convict the appellants inasmuch as section 4 of the Act, under which the case was allotted by the State Government to the  Special  Court  offended  against  article  14  of  the Constitution in that 35 it  enabled the Government to single out a  particular  case for reference to the Special Court for trial by the  special procedure  which  denied to persons tried under  it  certain material  advantages  enjoyed  by  those  tried  under   the ordinary -procedure.  Learned counsel placed strong reliance on the majority decision of this court in Anwar Ali Sarkar’s case(1)  and, indeed, claimed that that decision  ruled  the present  case.   He  further urged that  the  offence  under section 5(2) of the Prevention of Corruption Act was triable exclusively  by the court of session under item (1)  of  the last  heading of Schedule 11 to the Criminal Procedure  Code as  the offence is made punishable under that  section  with

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imprisonment for seven years, with the result that the trial which  was held in Calcutta would have been by jury  in  the High Court had the ordinary procedure been followed.  Though the trial by the Special Court began before the commencement of  the Constitution, its continuance without a  jury  after the  Constitution came into force vitiated the whole  trial, as  it would riot be possible to introduce the jury  at  any subsequent  stage.   In support of this view  he  relied  on certain observations in the majority judgment of this  court in  Qasim Razvi’s case(2).  These observations were made  by way  of  explaining  the  majority  decision  in  Lachmandas Kewalram Ahuja’s case(3) where it was held that  proceedings taken prior to the commencement of the Constitution before a Special  Court  constituted under section 12 of  the  Bombay Public  Safety Act, which was in the same terms  as  section 5(1)  of  the West Bengal Act, remained  unaffected  by  the Constitution,  though the special procedure provided by  the Act  was  held  to be  discriminatory  following  Anwar  Ali Sarkar’s case(1).  On the other hand, the Solicitor  General on behalf of the Government maintained that the decision was clearly distinguishable and had no application to this  case which  is  governed  by the  principles  enunciated  in  the Saurashtra  case(4).  Before considering the  constitutional validity of the Act in the light of the rulings referred  to above, (1)  [1952] S.C.R. 284. (2)  [1952] S.C.R. 589. (3)  [1952] S.C.R. 710. (4)  [1952] S.C.R. 435. 36 it is necessary to have a look at the provisions of the  Act in  order to ascertain the underlying policy and purpose  of the legislation, what evil it seeks to remedy and what means it employs to that end. The Act is entitled " an Act to provide for the more  speedy trial and more effective punishment of certain offences" and the preamble declares that " it is expedient to provide  for the  more  speedy  trial and more  effective  punishment  of certain offences " which are set out in the schedule annexed to  the  Act.   The Provincial Government  is  empowered  to constitute  Special  Courts  of  criminal  jurisdiction  for specified  areas  and  to appoint  persons  with  prescribed qualifications as Special Judges to preside over such courts (sections  2 and 3).  Section 4 defines the jurisdiction  of Special Judges and reads as follows: "4. (1) The Provincial Government may, from time to time  by notification in the Official Gazette, allot cases for  trial to  a Special Judge, and may also from time to time by  like notification  transfer  any case from one Special  Judge  to another  and  withdraw any case from the jurisdiction  of  a Special Judge or make such modifications in the  description of  a  case (whether in the name of the accused  or  in  the charges  preferred  or  in  any  other  manner)  as  may  be considered necessary. (2)The  Special  Judge shall have jurisdiction  to  try  the cases  for the time being allotted to him  under  subsection (1)  in  respect  of such of the charges  for  the  offences specified  in the schedule as may be preferred  against  the several  accused,  and  any  such  case  which  is  at   the commencement  of this Act or at the time of  such  allotment pending  before any Court or another Special Judge shall  be deemed to be transferred to the Special Judge to whom it  is allotted. (3)When  trying any such case as aforesaid, a Special  Judge may  also  try any offence whether or not specified  in  the

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schedule  which  is an offence with which the  accused  may, under  the Code of Criminal Procedure, 1898, be  charged  at the same trial."                              37 Section  5 provides for the procedure and powers of  Special Judges.   They are empowered to take cognisance of  offences without the accused being committed to their court for trial and  are required to follow the procedure prescribed by  the Criminal Procedure Code for the trial of warrant cases.  The Special  Judges may, for reasons to be recorded,  refuse  to summon  any witness, if satisfied after examination  of  the accused,  that  the  evidence of such witness  will  not  be material and shall not be bound to adjourn any trial for any purpose  unless  such  adjournment  is,  in  their  opinion, necessary in the interests of justice.  Except as  aforesaid the  provisions  of the Code are made applicable so  far  as they are not inconsistent with the Act, and for the purposes of the said provisions the Special Court is to be deemed  to be  a  court  of session trying cases  without  a  jury  and without  the aid of assessors.  By section 6 the High  Court is  given  all  the  powers conferred on  a  High  Court  by Chapters  XXXI and XXXII of the Code as if the court of  the Special  Judge were a court of session.  Section 7 bars  the transfer  of  any case from a Special Judge, and  section  8 lays  down certain special rules of evidence to- be  applied in the trial of offences specified in the schedule.  Section 9  enacts certain special provisions  regarding  punishment. Sub-section  (1) provides that a Special Judge shall  impose in addition to any sentence authorised by law a further fine which shall be equivalent to the amount of money or value of other  property found to have been procured by the  offender by  means of the offence, and sub-section (4)  requires  the amount  of  such  fine  when recovered to  be  paid  to  the Government  to which the offence caused loss or if there  is more than one such Government to distribute the amount among them  in proportion to the loss sustained by each.   Section 10 makes the provisions of the Prevention of Corruption Act, 1947, applicable to trials under the Act.  The schedule sets out  eight  categories of offences triable  by  the  Special Judges.   Paragraphs  1, 2, 3 and 4 relate  to  offences  in which  public servants are concerned or loss  of  Government property or money is involved.  Paragraph 5 relates 38 to  offences of forgery,falsification of accounts  and  such like.   Paragraph 6 includes offences punishable  under  the Essential Supplies Act, 1946, and paragraph 7 includes those punishable  under section 5 of the Prevention of  Corruption Act,  1947,  while paragraph 8 relates to  conspiracies  and attempts  to commit, and abetments of, any of  the  offences specified in the earlier paragraphs. Before examining whether the present case is governed by the ruling  in  Anwar  Ali  Sarkar’s case(1)  as  urged  by  Mr. Chatterjee or by the principles laid down in the  Saurashtra case(2)  as  the Solicitor-General maintained,  it  will  be convenient  to dispose of the contention of  Mr.  Chatterjee about his clients having been denied the advantage of a jury trial after January 26, 1950.  The contention, supported  as it is by the observations in Qasim Razvi’s case (3) to which reference  has  been  made, does  not,  however,  carry  the appellant’s case far enough, for, the question still remains whether  the  legislation impugned in the present  case  was obnoxious  to article 14 as section 5(1) of the West  Bengal Act  was  held to be in Anwar Ali Sarkar’s case  (1).   This brings  us to the main question referred to above  which  we now proceed to examine.

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Now,  it  is well settled that the equal protection  of  the laws  guaranteed by article 14 of the Constitution does  not mean  that  all  laws  must  be  general  in  character  and universal in application and that the State is no longer  to have the power of distinguishing and classifying persons  or things  for the purposes of legislation.  To put it  simply, all that is required in class or special legislation is that the  legislative  classification must not be  arbitrary  but should  be  based  on an  intelligible  principle  having  a reasonable  relation  to the object  which  the  legislature seeks  to  attain.   If  the  classification  on  which  the legislation  is founded fulfils this requirement,  then  the differentiation  which  the legislation  makes  between  the class  of  persons or things to which it applies  and  other persons or things left (1)[1932] S.C.R. 284. (3)[1953] S.C.R. 589. (2)[1952] S.C.R. 435. 39 outside the purview of the legislation cannot be regarded as a  denial  of the equal protection of the law, for,  if  the legislation  were  all-embracing in its scope,  no  question could  arise of classification being based  on  intelligible differentia having a reasonable relation to the  legislative purpose.   The  real  issue, therefore,  is  whether  having regard  to the underlying purpose and policy of the  Act  as disclosed   by  its  title,  preamble  and   provisions   as summarised  above, the classification of the  offences,  for the trial of which the Special Court is set up and a special procedure  is laid down, can be said to be  unreasonable  or arbitrary and, therefore, violative of the equal  protection clause. In  considering  this  question it is  hardly  necessary  to invoke  the accepted 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 " [see  per Fazl  Ali  J.  in Chiranjit Lal’s  case  (1),  quoting  from Constitutional  Law by Willis].  In the present case, it  is well   known  that  during  the  post-war   period   various organisations   and   establishments  set  up   during   the continuance  of  the  war  had  to  be  wound  up,  and  the distribution  and control of essential supplies,  compulsory procurement of food grains, disposal of accumulated  stores, adjustment  of  war  accounts and  liquidation  of  war-time industries  had to be undertaken.  These  undertakings  gave special  opportunities  to unscrupulous  persons  in  public services  placed  in charge of such undertakings  to  enrich themselves by corrupt practices and antisocial acts  thereby causing considerable loss to the Government.  Viewed against this background, it will be seen that by and large the types of  offences mentioned in the schedule to the Act are  those that  were common and widely prevalent during  this  period, and  it was evidently to prevent, or to place  an  effective check  upon,  the  commission  of  such  offences  that  the impugned  legislation  was  considered  necessary.   It   is manifestly  the policy of the Act to impose, in addition  to the  penalties prescribed under the ordinary law,  deterrent punishment that would make the offender disgorge the (1)  [1950] S.C.R. 869, 877. 40 ill-gotten  gains procured by him by means of  the  offence, and  where  such  gains  were obtained  at  the  expense  of Governments,  to distribute the amount recovered among  them in  proportion  to the loss caused to them by  the  offence. This  legislative purpose :is indicated clearly not only  in

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the preamble to the Act but also in section 9 which provides for special compensatory fines equal in value to the  amount procured  by  the offender by means of the offence  and,  as cases  involving such offences were known to be numerous  at the  time, a speedier trial of such cases than was  possible under the normal procedure was presumably considered  neces- sary.   Hence the system of Special Courts to deal with  the special  types of offences under a shortened and  simplified procedure  was  devised,  and  it  seems  to  us  that   the legislation in question is based on a perfectly intelligible principle  of classification having a clear  and  reasonable relation to the object sought to be attained. Mr.  Chatterjee  argues  that the  offences  listed  in  the schedule  do  not  necessarily involve the  accrual  of  any pecuniary  gain to the offender or the acquisition of  other property by him or any loss to any Government, and that  the classification  cannot,  therefore, be said to be  based  on that  consideration.  Counsel referred in particular to  the offences  included in the fifth paragraph, namely,  forgery, making  and possessing counterfeit seals,  falsification  of accounts, etc., as instances in point.  It may, however,  be observed that section 9(1), which makes it obligatory on the Special Court to impose on persons tried and convicted by it an additional compensatory fine of the kind mentioned above, indicates  that  only  those  offences,  which,  either   by themselves  or in combination with others mentioned  in  the schedule,  are suspected to have resulted in such  pecuniary gain  or  other  advantage  and,  therefore,  to  merit  the compensatory fine, are to be allotted to a Special Court for trial.   It  is well known that acts  which  constitute  the offences  mentioned  in  paragraph  5  are  often  done   to facilitate the perpetration of the other offences  specified in  the  schedule, and they may well have been  included  as ancillary  offences.   Article  14  doer,  not  insist  that legislative classification should be                              41 scientifically perfect or logically complete and we  -cannot accept  the suggestion that the classification made  in  the Act is basedon no intelligible principle and is,  therefore, arbitrary. It  has been further contended that even assuming  that  the scheduled   offences  and  the  persons  charged  with   the commission thereof could properly form a class in respect of which special legislation could be enacted, section 4 of the Act  is  discriminatory and void, vesting, as  it  does,  an unfettered discretion in the Provincial Government to choose any particular "case " of a person alleged to have committed an offence falling under any of the specified categories for allotment to the Special Court to be tried under the special procedure, while other offenders of the same category may be left  to  be  tried by ordinary  courts.   In  other  words, section  4  permits  the Provincial  Government  to  make  a discriminatory  choice among persons charged with  the  same offence  or offences for trial by a Special Court, and  such absolute  and unguided power of selection, though it has  to be  exercised  within  the  class  or  classes  of  offences mentioned  in the schedule, is no less  discriminatory  than the  wider  power  of  selection from  the  whole  range  of criminal  law  conferred  on the  State  Government  by  the legislation  impugned in Anwar Ali Sarkar’s case  (1).   The vice of discrimination, it is said, consists in the unguided and  unrestricted  power  of  singling  out  for   different treatment  one  among  a class of persons all  of  whom  are similarly situated and circumstanced, be that class large or small.  The argument overlooks the distinction between those

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cases where the legislature itself makes a complete  classi- fication  of persons or things and applies to them  the  law which  it  enacts, and others where the  legislature  merely lays  down  the  law  to be applied  to  persons  or  things answering  to  a  given description  or  exhibiting  certain common  characteristics, but being unable to make a  precise and complete classification, leaves it to an  administrative authority  to  make a selective application of  the  law  to persons or things within the, (1)  [1952] S.C.R. 284. 6 42 defined  group, while laying down the standards or at  least indicating in clear terms the underlying policy and purpose, in  accordance  with,  and  in  fulfilment  of,  which   the administrative  authority is expected to select the  persons or  things to be brought under the operation of the law.   A familiar  example  of  this  type  of  legislation  is   the Preventive  Detention Act, 1950, which, having indicated  in what  classes  of  cases and for  what  purposes  preventive detention can be ordered, vests in the executive authority a discretionary  power  to  select particular  persons  to  be brought  under  the  law.   Another  instance  in  point  is furnished  by  those  provisions of the  Criminal  Procedure Code   which  provide  immunity  from  prosecution   without sanction  of the Government for offences by public  servants in  relation to their official acts, the policy of  the  law being  that public officials should not be unduly  harrassed by  private  prosecution  unless  in  the  opinion  of   the Government,  there were reasonable grounds  for  prosecuting the  public servant which accordingly should  condition  the grant  of  sanction.  It is not, therefore, correct  to  say that section 4 of the Act offends against article 14 of  the Constitution   merely   because  the   Government   is   not compellable  to allot all cases of offences set out  in  the schedule  to Special Judges but is vested with a  discretion in the matter. Whether an enactment providing for special procedure for the trial  of certain offences is or is not  discriminatory  and violative of article 14 must be determined in each case  as, it arises, for, no general rule applicable to all cases  can safely  be  laid  down.   A  practical  assessment  of   the operation  of  the law in the  particular  circumstances  is necessary.  There are to be found cases on each side of  the line:  Anwar  Ali Sarkar’s case(1) is an  authority  on  one side;  the Saurashtra case (2) is on the other.  Apart  from dicta here and there in the course of the judgments deliver- ed in these cases and the decisions based on them, there  is no  real  Conflict  of  principle  involved  in  them.   The majority decision in Anwar Ali Sarkar’s case(1) proceeded on the view that no standard was laid down (1) [1952] S.C.R. 284. (2) [1952] S.C.R. 435. 43 and no principle or policy was disclosed in the  legislation challenged in that case, to guide the exercise of discretion by  the Government in selecting a " case" for  reference  to the  Special  Court for trial under  the  special  procedure provided  in the Act.  All that was relied on as  indicative of  a  guiding principle for selection was  the  object,  as disclosed  in  the  preamble  of the  West  Bengal  Act,  of providing  for the " speedier trial of certain  offences  ", but the majority of the learned judges brushed that aside as too  indefinite and vague to constitute a  reasonable  basis for classification.  "Speedier trial of offences",  observed

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Mahajan  J.,  "  may  be  the  reason  and  motive  for  the legislation   but   it   does  not  amount   either   to   a classification of offences or of cases....... In my  opinion it is no classification at all in the real sense of the term as it is not based on any characteristics which are peculiar to  persons  or  to cases which are to  be  subject  to  the special  procedure  prescribed  by  the  Act"  (page   314). Mukherjea  J.  said, " I am definitely of opinion  that  the -necessity  of a speedier trial is too vague, uncertain  and elusive  a  criterion  to  form a  rational  basis  for  the discrimination  made.  The necessity for speedier trial  may be the object which the legislature had in view or it may be the  occasion  for making the enactment.  In a  sense  quick disposal  is  a  thing  which  is  desirable  in  all  legal proceedings...... This is not a reasonable classification at all  but  an  arbitrary  selection"  (page  328).    Similar observations  are  to be found in the judgments of  Das  and Chandrasekhara Aiyar JJ. at pages 328 and 352 respectively. It  will  be seen that the main reasoning  of  the  majority judges  in Anwar Ali Sarkar’s case (1) as disclosed  in  the passages extracted above is hardly applicable to the statute here  in question which is based on a classification  which, in the context of the abnormal post-war economic and  social conditions is readily intelligible and obviously  calculated to  subserve  the  legislative purpose.  The  case,  in  our opinion,  falls  on  the  same  side  of  the  line  as  the Saurashtra  ruling(1) where Anwar Ali Sarkar’s case (1)  was distinguished (1) [1952] S.C.R. 284. (2) [1952] S.C.R. 435. 44 by  three  of  the learned Judges who were  parties  to  the majority  decision  in  the  earlier  case.   Fazl  Ali   J. observed:  " There is however one very important  difference between the West Bengal Act and the present Ordinance which, in my opinion, does afford such justification (for upholding the Ordinance), and I shall try to refer to it as briefly as possible.   I  think  that a  distinction  should  be  drawn between  discrimination  without reason  and  discrimination with  reason. ...... The main objection to the  West  Bengal Act  was that it permitted discrimination without reason  or without  any  rational basis The mere  mention  of  speedier trial’  as the object of the Act did not ’cure the  defect’, as the expression afforded no help in determining what cases required speedier trial The clear recital (in the Saurashtra Ordinance) of a definite objective furnishes a tangible  and rational basis of classification to the State Government for the purpose of applying the provisions of the Ordinance  and for  choosing only such offences or cases as  affect  public safety, maintenance of public order and the preservation  of peace  and tranquillity.  Thus under section 11,  the  State Government is expected only to select such offences or class of  offences or class of cases for being tried in a  Special Court  in  accordance  with the special  procedure,  as  are calculated  to  affect  the public  safety,  maintenance  of public  order  etc." (pages 448-449).  Almost the  whole  of this   reasoning  would  apply  mutatis  mutandis   to   the legislation  impugned  in the present case.   Mukherjea  J., after  distinguishing Anwar Ali Sarkar’s case(1) on  similar grounds, said: "The object of passing this new Ordinance  is identically  the  same for which the earlier  Ordinance  was passed, and the preamble to the latter, taken along with the surrounding circumstances, discloses a definite  legislative policy  which  has  been sought to  be  effectuated  by  the different provisions contained in the enactment.  If special

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courts  were considered necessary to cope with  an  abnormal situation,  it cannot be said that the vesting of  authority in the State Government to select offences for trial                              45 by  such  courts  is in  anyway  unreasonable."  (Page  463. Italics  mine).   The  last sentence aptly  applies  to  the present case. It  will  be  recalled that section  11  of  the  Saurashtra Ordinance was in the same terms as section 5(1) of the  West Bengal Special Courts Act.  Answering the objection that  it committed to the absolute and unrestricted discretion of the executive  government  the duty of making the  selection  or classification  of  cases to be ’placed before  the  Special Court,  the  learned  Judge observed: "A  statute  will  not necessarily be condemned as discriminatory, because it  does not make the classification itself but, as an effective  way of carrying out its policy, vests the authority to do it  in certain   officers   or   administrative   bodies."    (Page 459)........... In my opinion, if the legislative policy  is clear  and definite and, as an effective method of  carrying out that policy, a discretion is vested by the statute  upon a  body  of  administrators or officers  to  make  selective application  of  the  law to certain classes  or  groups  of persons,  the statute itself cannot be condemned as a  piece of  discriminatory legislation............... In such  cases the power given to the executive body would import a duty on it   to  classify  the  subject-matter  of  legislation   in accordance with the objective indicated in the statute.  The discretion  that is conferred on official agencies  in  such circumstances  is not an unguided discretion; it has  to  be exercised in conformity with the policy to effectuate  which the  discretion  is  given, and it is in  relation  to  that objective  that  the propriety of the  classification  would have to be tested." (Page 460). Das  J.  no  doubt laid stress on  the  fact  that  although section  1  1 of the Saurashtra Ordinance was  in  the  same terms as section 5(1) of the West Bengal Act, the court  had to  consider  the  discriminatory character  of  the  latter enactment  in  so  far  as  it  empowered  the  West  Bengal Government to refer an individual case to the special  court for trial, whereas the Saurashtra Government, having by  the notification  issued  under  the  Ordinance  referred   only certain offences, the court was called upon to consider  the constitutionality of 46 that  part  of  section  1 1  which  enabled  the  executive government  to  refer  "offences, classes  of  offences  and classes  of  cases".   As regards  these  three  categories, however, the learned Judge held that in the preamble of  the old  Ordinance,  in  which  the  impugned  provisions   were inserted   by  way  of  amendment,  there   was   sufficient indication  of policy to guide the executive  government  in selecting  offences  or classes of offences  or  classes  of cases for reference to a special court, and concluded  thus: "In my judgment this part of the section, properly construed and understood, does not confer an uncontrolled and unguided power on the State Government.  On the contrary, this  power is controlled by the necessity for making a proper classifi- cation  which is to be guided by the preamble in  the  sense that the classification must have a rational relation to the object  of  the  Act  as recited in  the  preamble.   It  is therefore not an arbitrary power.  The legislature has  left it  to the State Government to classify offences or  classes of  offences  or  classes of cases for the  purpose  of  the Ordinance, for the State Government is in a better  position

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to  judge  the needs and exigencies of the  State,  and  the court  will not lightly interfere with the decision  of  the State Government." (Page 474). Among  the minority Judges both Mahajan  and  Chandrasekhara Aiyar  JJ.  took  the view that the  preamble  which  merely referred   to  the  need  to  provide  for  public   safety, maintenance  of public order and the preservation  of  peace and  tranquillity  in the State of Saurashtra  indicated  no principle of classification, as the object was a general one which had to be kept in view by every enlightened Government or system of administration and that every law dealing  with commission  and  punishment of offences was  based  on  this need.   Accordingly,  in  their view, the  decision  of  the majority in the Saurashtra case(1) marked a retreat from the position  taken  up by the majority in the earlier  case  of Anwar  Ali  Sarkar(2).  However that may  be,  the  majority decision  in the Saurashtra case(1) would seem to  lay  down the principle that if the (1) [1952] S.C.R. 435. (2) (1952] S.C.R. 284. 47 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 article 14.  In  the case  of  such  a statute it could  make  no  difference  in principle  whether the discretion which is entrusted to  the executive  Government is to make a selection  of  individual cases  or  of offences, classes of offences  or  classes  of cases.   For,  in either case, the discretion  to  make  the selection  is a guided and controlled discretion and not  an absolute  or  unfettered  one and is equally  liable  to  be abused,  but as has been pointed out, if it be shown in  any given  case  that  the  discretion  has  been  exercised  in disregard of the standard or contrary to the declared policy and  object  of  the legislation,  such  exercise  could  be challenged  and  annulled under article  14  which  includes within its purview both executive and legislative acts. Mr.  Chatterjee brought to our notice in the course  of  his argument  a  decision of the Calcutta High Court  in  J.  K. Gupta  v. The.  State (1) where a Special Bench (Harries  C. J., Das and Das Gupta JJ.) inclined to the view that the Act now under challenge did not create a valid class or  classes of  offences, and held that even if the classification  were held  to be proper, section 4(1) was ultra vires article  14 of the Constitution in that a discretionary power was  given to  the State to allot cases to the Special Court or not  as the State Government felt inclined, and thus to discriminate between  persons charged with an offence falling within  the same class.  We are unable to share this view.  There may be endless  variations  from  case to case  in  the  facts  and circumstances  attending the commission of the same type  of offence,  and  in many of those cases there may  be  nothing that justifies or calls (1)  (1952) 56 C.W.N. 701. 48 for  the application of the provisions of the  special  Act. For  example, sections 414 and 417 of the Indian Penal  Code are among the offences included in the Schedule to the  Act, but they are triable -in a summary way under section 260  of

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the Criminal Procedure Code where the value of the  property concerned does not exceed fifty rupees.  It would indeed  be odd  if  the Government were to be compelled to  allot  such trivial  cases to a Special Court to be tried as  a  warrant case with an appeal to the High Court in case of conviction. The  gravity  of the particular crime, the advantage  to  be derived  by the State by recoupment of its loss,  and  other like considerations may have to be weighed before  allotting a  case to the Special Court which is required to  impose  a compensatory  sentence of fine on every offender  tried  and convicted  by  it.  It seems reasonable, if  misuse  of  the special machinery provided for the more effective punishment of certain classes of offenders is to be avoided, that  some competent  authority  should be invested with the  power  to make  a  selection of the cases which should be  dealt  with under the special Act. For  all  these reasons we hold that section 4 of  the  Act, under  which the appellants’ case was allotted by the  State Government    to   the   Special   Court   at   Alipur    is constitutionally   valid,   and  the   Special   Court   had jurisdiction to try and convict the appellants. As  regards the fine of Rs. 50,000, inflicted on  the  first appellant,  Mr. Chatterjee objected that it could not  stand to  the extent of Rs. 47,550 found to have been received  by the first appellant by the commission of the offence, as  it is in contravention of article 20 of the Constitution  which provides, inter alia, that no person shall be subjected to a penalty  greater than that which might have  been  inflicted under the law in force at the time of the commission of  the offence.   The  offences for which the first  appellant  has been  convicted were all committed in 1947, whereas the  Act which authorised the imposition of the additional punishment by way of fine equivalent to the amount of money or value of other property found to                              49 have  been procured by the offender by means of the  offence came  into force in June, 1949.  Mr. Chatterjee  urged  that article 20 on its true construction prohibits the imposition of such fine even in cases where the prosecution was pending at  the  commencement of the Constitution.   This  question, which  turns on the proper construction of the article,  was recently  considered and decided in Rao Shiv  Bahadur  Singh and  Another  v.  The  State  of  Vindhya  Pradesh(1),   and according  to  that  decision the sentence of  fine  to  the extent of Rs. 47,550 will be set aside in any event. The appeal will be heard in due course on the merits, and it would  be  open  to the court, in  case  the  conviction  is upheld, to, impose such appropriate fine as it should  think fit in addition to the sentence of imprisonment. BOSE  J.-It  is with the deepest regret that  I  again  find myself  compelled to dissent.  While this was  still  virgin land there was wide scope for many different points of view, but   as  decision  has  followed  decision  the  room   for divergencies of view has narrowed down to a small field.   I respectfully and loyally accept the decisions of this  court which  have  gone  before and I have  no  desire  to  reopen matters  which must now be taken to be settled.   But  these fundamental  provisions  of  the  Constitution  are,  in  my opinion,  of  such deep and far-reaching importance  and  my views  about  them  are  so strong  that  I  cannot  in  all conscience  yield  a  single inch  of  ground  except  where compelled  to  do so.  So far as I am  concerned,  the  only point  in this case is where and how far the  matters  which arise  for  decision  here have  been  settled  by  previous authority.

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The West Bengal Criminal Law Amendment (Special Courts) Act, 1949,   was   enacted  and  came  into  force   before   the Constitution.  At that date, the fundamental provisions were not in force and no question of the equal protection clauses arose.   By  reason of the ratio decidendi in  the  previous decisions of this court I respectfully agree that article 14 has no retrospective (1)  [1953] S.C.R. 1188. 7 50 operation.   I  concede  therefore that up to  the  26th  of January,  1950,  the  impugned Act was good  law,  that  the Special  Court  which was constituted to try this  case  was validly  constituted  and  that  the  singling  out  of  the appellants  by  the Provincial Government for trial  by  the Special  Judge  in  the  Special  Court  under  its  special procedure was lawful and proper however much this might have savoured of discrimination after the Constitution.  AR  that I accept. Then,  as  regards the continuation of the trial  after  the Constitution,  I  accept on the basis  of  Habeeb  Mahamed’s case(1)  and  Qasim  Razvi’s  case(2),  where  the  previous decisions  of this court have been examined  and  explained, that  the continuation of the trial after  the  Constitution can  only be impugned if the procedure followed  after  that date was substantially discriminatory.  In my opinion it was in this case in at least one vital particular. Had the normal procedure been followed the appellants  would have  had  a jury trial in the High Court at  Calcutta.   In Qasim  Razvi’s case(2), the majority dealt with  the  matter thus: "We  may mention here that the impossibility of  giving  the accused  the  substance  of  a  trial  according  to  normal procedure  at the subsequent stage may arise not  only  from the  fact  that  the  discriminatory  provisions  were   not severable   from  the  rest  of  the  Act  and   the   court consequently  had no option to continue any other  than  the discriminatory  procedure;  or it may arise  from  something done at the previous stage which though not invalid at  that time  precludes  the  adoption  of  a  different   procedure subsequently.   Thus,  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.  Similarly having once adopted the summary procedure, it is not possible to pass on to a different procedure on  a later date.  In such cases the whole trial would have to  be condemned as bad." That, in my view, covers this case, (1) [1953] S.C.R. 561. (2) [1953] S.C.R. 589, 51 On  the question of punishment also there is  discrimination but  that is severable and would in any event be covered  by article 20. I  am  also  compelled to dissent from  the  view  that  the impugned  Act does not fall foul of the Constitution.  I  am aware that this Act has been repealed and so cannot be  used again.  But we are now laying down a pattern for the  future and  I am apprehensive of other Acts being framed along  the same  lines at some future date because of our  decision  in this case.  The ratio decidendi of the majority proceeds  on the assumption that this Act would have been good even if it had  been enacted after the Constitution.  I must  with  the very greatest respect record a strong and emphatic  dissent. I  bow with respect to the wisdom of my colleagues who  have

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laid down the classification test, and indeed I have  myself agreed  that that is one of the matters to be borne in  mind in  any  given case.  In so far therefore as the  Act  makes provision  for  the  setting up of  Special  Courts  and  of Special  Judges,  and  in so far as it  selects  classes  of offences which can be tried by them, it is, I think, on  the basis  of  our  previous  decisions,  good.   Where,  in  my opinion, it is bad is in section 4(1) where it empowers  the Provincial  Government  to  pick out cases  from  among  the specified  classes  and to send them to Special  Courts  and thus discriminate between man and man in the same class. I am not concerned here with reasonableness in any  abstract sense,  nor with the convenience of administration nor  even with  the fact, which may well be the case here,  that  this will  facilitate the administration of justice.  The  solemn duty  with  which  I  am charged  is  to  see  whether  this infringes  the fundamental provisions of  the  Constitution; and  though I recognise that there is room for  divergencies of  view,  as  indeed there must be in  the  case  of  these loosely  worded provisions, and deeply though I respect  the views  of  my  colleagues, I am nevertheless  bound  in  the conscientious discharge of my duty to set out my own  strong views  so long as there is, in my opinion, scope still  left for a divergence of view. 52 In  my opinion, the West Bengal legislature could  not,  and indeed Parliament itself could not, have selected case A and case B and case C and accused X and Y and Z and sent them to the  Special  Courts  for trial  leaving  others,  similarly placed  in the same class, for trial by the ordinary  courts of  the land; and what the legislature itself could  not  do cannot  be  done by a delegated authority.   Having  made  a classification, having given reasons for it, the legislature could  not, in my judgment, without assigning reasons for  a subclassification,  arbitrarily  select A, B and C  and  set them  as a class apart in the classification  already  made. It  is,  in my view, as objectionable to make  an  arbitrary sub-classification out of a good classification as it is  to make an arbitrary classification in the first instance;  and to pick out A, B and C from an already classified class  and set  them  apart for special treatment is nothing  more  nor less  than a fresh classification.  If it is not  arbitrary; if  it  falls  within the rules laid down  in  our  previous decisions:  good.  If it does not: then bad.  I am clear  on the  strength of previous authority that if the  legislature had  done this the Act would have been bad, at any  rate  to that  extent.   It is in my judgment equally  bad  when  the discrimination is left to a lesser power. I do not think the preventive detention laws afford a proper guide  to interpretation here.  They are a class  apart  and have  been  engrafted  as an exception  to  the  fundamental rights in the very chapter on those rights. I  feel  all this is fraught with the  gravest  danger.   We cannot have Star Chambers or their prototypes in this  land; not  that  these  tribunals have  any  resemblance  to  Star Chambers  as yet.  But we are opening a dangerous  door  and paving   a  doubtful  road.   If  we  wish  to  retain   the fundamental liberties which we have so eloquently proclaimed in our Constitution and remain a free and independent people walking  in the democratic way of life, we must be swift  to scotch  at the outset tendencies which may easily widen,  as precedent is added to precedent, into that which in the  end will be the negation of freedom and equality.  To                              53 this  extent  and  with  the deepest  regret  I  express  my

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respectful dissent. In  my  view,  the convictions cannot be  upheld  and  there should be a retrial in the normal way.                         Appeals dismissed. Agent for the appellant in C.A. No. 84: Sukumar Ghose. Agent for the appellant in C.A. ’No,. 85: R. R. Biswas. Agent for the respondent: G. H. Rajadhyaksha.