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PETITIONER: LACHMANDAS KEWALRAM AHUJAAND ANOTHER

       Vs.

RESPONDENT: THE STATE OF BOMBAY.

DATE OF JUDGMENT: 20/05/1952

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR  235            1952 SCR  710  CITATOR INFO :  D          1953 SC 156  (16)  R          1953 SC 287  (4)  R          1953 SC 394  (6)  RF         1953 SC 404  (11)  RF         1954 SC 424  (18)  F          1955 SC  13  (14)  R          1955 SC 191  (5)  F          1957 SC 503  (16)  R          1957 SC 877  (16)  D          1957 SC 927  (9)  D          1958 SC  86  (22)  R          1958 SC 538  (11)  RF         1958 SC 578  (211)  F          1959 SC 149  (45,46,47)  E          1959 SC 609  (12,13,27)  E          1960 SC 457  (16)  R          1961 SC1245  (12)  RF         1962 SC1621  (109)  R          1962 SC1737  (14)  R          1974 SC2009  (9,13)  R          1979 SC 478  (64,67)  R          1980 SC1789  (36)

ACT:    Constitution  of  India,  Arts.  13,  14--Bombay  Public Safety  Measures  Act,  1947,  s.  12--Provision  empowering Government   to   refer  ’cases’  for   trial   by   Special Judge--Validity--Discrimination   --Proceedings    commenced before  26th January, 1950, before Special  Judge--Procedure discriminatory--Continuation  of trial under spicjul  proce- dure--Validity  of trial--Applicability of  Constitution  to pending trials.

HEADNOTE:     Held,  per  MAHAJAN, MUKHERJEA, DAs  and  CHANDRASEKHARA AIYAR,  JJ. (PATANJALI SASTRI C.J. dissenting).--Section  12 of  the Bombay Public Safety Measures Act, 1947, in so  far, at  any  rate,  as it authorises the  Government  to  direct particular "cases" to be tried by a Special Judge  appointed

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under the Act does not purport to proceed on any classifica- tion  and therefore contravenes Art. 14 of the  Constitution and is void under Art. 13 on the principles laid down in the cases  of State of West Bengal v. Anwar Ali  Sarkar  ([1952] S.C.R. 284) and Kathi Raning Rawat v. Tht State of  Saurash- tra ([1952] S.C.R. 435).      The  appellants  who were accused of  having  committed murder  and  other  serious offences were  directed  by  the Government  of  Bombay by an order made on the  6th  August, 1949,  to be tried under the Bombay Public  Safety  Measures Act by a Special Judge appointed under the Act, charges were framed against them on the 13th January, 1950, and they were convicted in March, 1950.  On appeal it was contended before the High Court that the trial and conviction were illegal as the Bombay Public Safety Measures Act was void under Art. 13 read  with Art. 14of the Constitution which came into  force on  the 26th January, 1950, but the High Court held that  as the proceedings against the accused had commenced before the Constitution,  the  provisions of Arts. 13 and  14  did  not apply and the conviction was not illegal.       Held,by  a majority, that although substantive  rights and  liabilities acquired or accrued before the date of  the Constitution  remain  enforceable, it cannot  be  held  that after  that  date, those rights or liabilities must  be  en- forced  under  the particular procedure that  was  in  force before  that  date,  although it has since  that  date  been repealed or come into conflict with the fundamental right to equal protection of the laws guaranteed by the 711 Constitution, as there is no vested right in procedure.  The fact of reference of "cases" to the Special Judge before the Constitution came into force has no reasonable relation   to the objects sought to be achieved by the Act, the  discrimi- nation therefore continued after the Constitution came  into force  and such continuation of the application of the  dis- criminatory  procedure to the cases of the appellants  after the  date  of the Constitution constituted a breach  of  the fundamental right guaranteed by Art. 14, and the  appellants were  therefore  entitled  to be tried  under  the  ordinary procedure after the date of the Constitution.      PATANJALI SASTRI C.J. (contra).--Granting that s. 12 of the  Bombay Act must, in view of the decision in  Anwar  Ali Sarkar’s  case, be held to be discriminatory and void in  so far as it empowers the State Government to refer  individual cases to a Special Judge for trial, the trial of the  appel- lants which had validly started before the Special Judge who had been empowered to try the case cannot be vitiated by the Constitution subsequently coming into force.  The provisions of  the Constitution relating to fundamental rights have  no retrospective operation and do not affect a criminal  prose- cution commenced before the Constitution came into force.     The  jurisdiction of the Special Judges validly  created and  exercised before the Constitution and their  competence to try the cases referred to them cannot be affected by  the special procedure becoming discriminatory.  The correct view is  that Art.  14 does not affect  pending  trials  even  in matters  of procedure. Moreover the appellants against  whom proceedings  had  been commenced before the  Special  Judge, were  not  in  the same situation as others  and  there  was nothing  discriminatory  in a law which permits them  to  be tried  under the special procedure which was  applicable  to them when the proceedings were started against them.

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JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION: Cases Nos. 20 and  21  of 1950.      Appeals  under Art. 132(1)of the Constitution of  India from the judgment and order dated the 19th May, 1950, of the High Court of Judicature at Bombay (Dixit and Shah, JJ.)  in Confirmation  Case No. 4 of 1950 and Criminal  Appeals  Nos. 190 and 199 of 1950, arising out of judgment dated the  13th March, 1950, of the Court of the Special Judge at  Ahmedabad in Special Cases Nos. 2 and 3 of 1949.      N.C.  Chatterjee and Ram Lal Anand (Hardyal  Hardy  and S.L. Chibber, with them) for the appellants. 712     M.C. Setalvad, Attorney-General for India (G. N.  Joshi, with him) for the respondent.      A.A. Peerbhoy  and  J.B. Dadachanji lot the Intervener.     1952.   May  20.  The judgment  of Mehr  Chand  Mahajan, Mukherjea,   Das  and  Chandrasekhara Aiyar, JJ. was  deliv- ered  by  Das  J. Patanjali Sastri    delivered  a  separate dissenting judgment.  PATANJALI SASTRI C.J.--I regret I am unable to a gree  with the  reasoning and conclusion of my learned brother  Das  J. whose judgment I have  had the advantage of reading.     The appellants were convicted and sentenced to death and varying terms of imprisonment by the Special Judge,  Ahmeda- bad,  on  charges  of murder and other  offences  under  the Indian  Penal Code, the Arms Act and the Bombay Police  Act. The  Special Judge was appointed by a   notification  issued under  the Bombay Security Measures Act, 1947,  (hereinafter referred to as the impugned Act) and on August 6, 1949,  the State  Government,  in exercise of the powers  conferred  by section  12 of the impugned Act, directed the Special  Judge to  try  the case of the appellants who were  implicated  in what  was  known as the Central Bank Robbery  Case.  Charges were  framed  on January 13, 1950, without  any  preliminary enquiry  and committal by a Magistrate which had  been  dis- pensed with by the impugned Act, and seventeen witnesses for the prosecution were examined before January 26, 1950,  when the Constitution came into force. The proceedings continued, and  after the examination of sixty witnesses in all,  ended in the conviction of the appellants on March 13, 1950.     Separate  appeals were preferred by the  present  appel- lants  to the High Court which, however, confirmed the  con- viction  and  sentence in each case. An objection  that  the trial was illegal as the impugned Act was void under article 13 (1) of the Constitution, read with article 14, was  over- ruled on the ground that 713 those provisions had no retrospective operation and did  not affect  proceedings  already  started in the  Court  of  the Special Judge.  the learned Judges followed the decision  of a  Special Bench of their own Court in In re  Keshav  Madbar Menon(1)  which  has since been affirmed by  this  Court  in [1951] S.C.R. 228.      It is urged on behalf of the appellants that the  deci- sion relied on by the High Court is distinguishable and that the  present case is governed by the decision of this  Court in  The State of West Bengal v. Anwar Ali Sarkar(2)  to  the effect that section 5 of the Bengal Act (which is in identi- cal terms with section 12 of the impugned Act) is  discrimi- natory  and void in so far, a any rate, as it  empowers  the State  Government to direc "cases" to be tried by a  Special Court  under  a  special  procedure.   Accordingly,  it  was claimed   that the Special Judge had no jurisdiction to  try the  appellant applying the special procedure prescribed  by

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the impugned Act.     Granting,  however, that section 12 of the impUgned  Act must, in view of the decision in Anwar Ali Sarkar’ case (2), be held to be discriminatory and void in so far as it empow- ers  the  State Government to refer individual  cases  to  a Special  Judge  for trial, it does no seem to me  to  follow that  the trial of the appellants which had validly  started before the Special Judge who had been duly empowered to  try the  case, is vitiated by reason of the Constitution  subse- quently  coming into force. It is to be noted that the  West Bengal  case(2) was argued on the basis that article  12  of the Constitution was applicable to the proceeding from their inception, although the notification directing the trial  of some  of the persons accused in that case was issued on  the day before the commencement of the Constitution.  The  posi- tion here is different The appellant’s case was sent to  the Special  Judge for trial by notification dated  6th  August, 1949,  and  the  Judge took cognisance  of  it,  framed  the charges  and  proceeded  with the trial  to  a  considerable extend before the commencement of the Constitution on 26th (1)  (1950) 52 Born. L.R. 540.            (2) [5952]  S.C.R. 284. 714 January, 1950. There could be no question, therefore, of the appellants’  fundamental  right under article 14  being  in- fringed up to that point, as it has been held by this  Court in  Keshavan Madhava Menon’s case(1) that the provisions  of the  Constitution  relating to fundamental  rights  have  no retrospective operation and do not affect a criminal  prose- cution commenced before the Constitution came into force.       On  and after 26th January, 1950, the  appellants,  no doubt,  had  the right to the equal protection of  the  law; but,  as  has been repeatedly pointed out, that  right  only meant that the State, including the executive and the legis- lature, should apply the same law, substantive and procedur- al,  to  all  persons alike in the  same  situation  without discrimination.   It is said that after the commencement  of the  Constitution persons who commit the same offences  with which the appellants stood charged would, according to Anwar All  Sarkar’s  case  (2) not be liable to be  tried  by  the Special  Judge under the special procedure and, if  so,  the trial of the appellants, too, could not be continued by  the Special Judge under such procedure after 26th January, 1950, because such of the departures from the normal procedure  of trial  under the Criminal Procedure Code as were applied  to the appellants during the rest of their trial, being  disad- vantageous to them in some respects, involved discrimination against  them. It is, therefore, claimed that the  continued application  of  such  discriminatory  procedure  after  the Constitution  came  into force rendered the  trial  and  the resulting conviction illegal.  I am unable to agree.  In the first place, as already pointed out: equal protection of the laws  postulates  persons  in  the  same  situation  and  in the  same  circumstances  claiming that the same law  should be  applied  to them.  Can it be said that  the  appellants, whose  trial by the Special Judge had  been  lawfully   com- menced and  was pending at the commencement of the Constitu- tion, were in the same situation with persons who  committed the same offences after the Constitution came into (1) [1951] S.C.RR. 228..          (2) [1952] S.C.R. 284. 715 force ?  It seems to me that the situation and circumstances are   different  in the two cases and no complaint  of  dis- criminatory  treatment  by reason only of the  trial  having been continued under the special procedure can be sustained,

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even assuming that the ordinary  procedure under the  Crimi- nal  Procedure Code became applicable to the  appellants  on and after 26th January, 1950.       Such  assumption, however, seems to be open  to  ques- tion. Section 1, sub-section (2), of the Criminal  Procedure Code   enacts   that   "Nothing   herein   contained   shall affect   ..........  any special jurisdiction or power  con- ferred  or any special form of procedure prescribed, by  any other law for the time being in force  .........  The juris- diction conferred on the Special Judge by the impugned  Act, which, as pointed out already, was perfectly valid and fully operative  down  to the 26th ,January, 1950,  thus  remained unaffected and application to the appellants of the ordinary procedure  prescribed by the Code was excluded.  It  cannot, therefore,  be  said  that on the 26th  January,  1950.  the appellants were in a position to claim that they were  enti- tled to be tried  under the  ordinary  procedure  like those who  committed  the same offences after that  date  or  who, having committed them before such date, had not been direct- ed  to be tried’by the Special Judge. It was said that  sec- tion  1 (2) of the Criminal Procedure ’ Code pre-supposes  a valid law conferring a special juris diction or  prescribing a  special form of procedure and, inasmuch as such parts  of the  special procedure as could still be applied  to  trials continued  after  the commencement of the  Constitution  are void under article 13(1) read with article 14, section  1(2) of  the  Code could not stand in the way of  the  appellants being  tried  under the ordinary procedure.   This  argument seems to me to beg the question. It assumes that the special procedure is discriminatory and void to the extent to  which it  could have been applied to the trial of  the  appellants after  26th January, 1950.  But the assumption would not  be valid unless the appellants could be tried 716 under  the  normal procedure after 26th  January,  1950,  in which  case alone they could say "Why not try us  under  the Code;  why discriminate?"  But, having regard to  section  1 (2) of the Code, the normal procedure would become  applica- ble  only  if  the special procedure is  excluded  as  being discriminatory  and void.  The argument thus proceeds  in  a circle.      Again,  it  is difficult to see on what  principle  the jurisdiction  of  the  Special Judge,  validly  created  and exercised over the appellants’ case, could cease to continue on  and  after 26th January, 1950. According to  the  appel- lants’  contention. the special procedure prescribed by  the impugned Act became discriminatory and void after 26th Janu- ary, 1950, and, therefore, inapplicable to what remained  of their trial.  But, could this circumstance affect the compe- tence of the Special Judge to try their case of which he had validly  taken cognisance ? In Keshoram Poddar v. Nundo  Lal Mullick(1) the Judicial Committee of the Privy Council  held that  the  cessation of the jurisdiction of a  Rent  Control Tribunal  after 31st March, 1924, over properties  beyond  a certain rental value did not affect its power to deal with a case after such cessation if the case was within its  juris- diction  when it was filed and related to a period prior  to such  cessation. Their Lordships observed: "The  application of the Act is when the parties begin to move under it.  This was done in the present case before March 1924. The rest  is merely  the working out of the application".   The  position here seems to me to be closely analogous. The Special  Judge was  competent  to try the appellants’ case when  the  trial commenced  before 26th January, 1950, and the  impugned  Act was validly applied to the case. The rest was merely working

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out  the application of the impugned Act.  I find it  diffi- cult  to see why the competency of the Special Judge to  try the  case  should cease after 26th January, 1950,  any  more than that of the Rent Control Tribunal to deal with a  pend- ing matter after 31st March, 1924, when its jurisdiction was restricted. (1) (1927) 54. I.A.152. 717     If,  then,  the  jurisdiction of the  Special  Judge  to continue the trial of the appellants remained unaffected  by the  advent of the Constitution, it would  be  impracticable for  the Judge to switch the pending trials to  a  different procedure  from 26th January, 1950, so as to give effect  to the  equal protection claims of under-trial  prisoners.  The impugned  Act,  for instance, enacts  that  "Notwithstanding anything contained in the Code the trial of offences  before a  Special  Judge shall not be by jury or with  the  aid  of assessors"  (s.  20).  The trials having been  held  so  far without  a  jury or assessors as the case may be.  it  would obviously be impossible in such cases to continue them after 26th  January, 1950, with a jury or with the aid  of  asses- sors,  where  such trials are required to  be  so  conducted under  the  ordinary  procedure.  Again,  the  impugned  Act provides that no case shall be transferred from any  Special Judge, a necessary consequence of the exclusive jurisdiction of  the  Special Judge and the special  mode  of  proceeding prescribed for him. If a right of transfer under section 526 of  the  Code were to be recognised as accruing  after  26th January,  1950, to persons undergoing trial before the  Spe- cial  Judge, the scheme of trial by Special Courts may  well break down. The alternative courses open to the Court would, therefore,  seem  to be either to hold that  article  13(1), read with article 14, does not affect pending trials even in respect  of procedural matters, as it has been held  not  to affect  such  trials in respect of  substantive  rights  and liabilities  accrued before the date of the Constitution  in Keshavan  Madhava  Menon’s case(1), or to go  back  on  that decision  and  give  those provisions  of  the  Constitution retrospective,  effect.  I am  clearly of opinion  that  the principle  of the above-said decision must rule the  present case.  That principle has been stated thus:  "Article  13(1) cannot  be read as obliterating the entire operation of  the inconsistent  laws, or to wipe them out altogether from  the statute-book, for, to do so will be to give  them retrospec- tive  effect which, we have said, they do not possess.  Such laws  exist for  all past transactions and  ,.for  enforcing all (1) [1951] S.C.R.  228. 718 rights  and liabilities accrued before the date of the  Con- stitution", (Italics mine).  Indeed, the last few words  are apt  to cover the present case, though, as a party  to  that decision, I am sensible that we did not have in mind a  case precisely  like  the one now before us. But, it is  well  to remember  that  over-fine  distinctions  sometimes  lead  to unsuspected traps.      In  the foregoing discussion I have assumed  that  such departures from the normal procedure as were still  applica- ble to what remained of the appellants’ trial after the 26th January, 1950, were so materially prejudicial to them as  to amount  to  a  denial of the equal protection  of  the  laws within the meaning of article 14 of the Constitution.  I am, however,  by no means satisfied that that is  the  position. One  of  these deviations relates to the recording  of  evi- dence.  ’1  he SpeCial Judge is empowered to record  only  a

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memorandum of the substance of the evidence of each  witness examined,  whereas the Criminal Procedure Code requires  the evidence  to  be recorded in full.  Another relates  to  the summoning  of witnesses for the defence, the  Special  Judge being given a discretion to refuse to summon a witness ’ ’if satisfied after examination of the accused that the evidence of  such witness will not be material" (s. 13), while  under section 257(1)of the Code the Magistrate has the  discretion to  refuse  to  summon witnesses if he  considers  that  the application  for  the issue of process  for  compelling  the attendance of any witness is made "for the purpose of  vexa- tion  or delay or for defeating the ends of  justice".   And lastly,  the impugned Act provides that no court shall  have jurisdiction  to  transfer any case from any  Special  Judge (section 18 (3)), whereas transfers under section 526 of the Code  are  allowed on certain specified  grounds.  The  more important departures from the procedure under the Code  such as dispensation of preliminary enquiry and committal and the elimination of jury and assessors had already been  applied, and  validly applied, to the trial of the appellants  before the Constitution came into force. and there can be no  ques- tion of such departures vitiating the trial.  I am unable to regard the 719 procedural  variations in the recording of evidence and  the summoning  of  witnesses  as so serious as to  amount  to  a denial of the equal protection of the laws within the  mean- ing  of article 14. Even if the appellants were to be  tried under  the normal procedure of the Code after 26th  January, 1950,  the omission to record the evidence in full  and  the refusal  to summon a witness in the circumstances  mentioned in  section 13 may well be regarded as  mere  irregularities curable under section 537 of the Criminal Procedure Code. As regards  transfer, it does not, as already pointed out,  fit in  with  the scheme of trial before a Special  Judge,  and, unless  any  system  of trials by Special Courts  is  to  be condemned  as violative of article 14--the decision of  this Court  in Kathi Raning Rawat v. The State  of  Saurashtra(1) shows  that  it  can be validly  instituted  in  appropriate circumstances--a prohibition of transfer cannot be  regarded as  falling  within  the inhibition of article  14.  I  have emphasised  elsewhere, and I do so again, that  in  applying the  dangerously  wide and vague language  of  the  equality clause to the concrete facts of life, a doctrinaire approach should be avoided.      In  all the circumstances of this case, I do  not  feel impelled to set aside the trial and conviction of the appel- lants and I accordingly dismiss the appeals.     DAs  J.--These  two appeals are from the judgment  of  a Division Bench of the Bombay High Court (Dixit and Shah JJ.) dated May 19, 1950, dismissing the appeals preferred by  the appellants  against  the order made by Shri  M.S.  Patti  on March  13,  1950, as the Special Judge appointed  under  the Bombay  Public Security Measures Act, 1947, whereby he  con- victed and sentenced them to death and to different terms of imprisonment under the different charges.      The  prosecution  case is shortly as follows:   On  the morning  of May 26,  1949, between the hours of  10-30  a.m. and 11 a.m. in the city of Ahmedabad the two appellants with another  companion, after injuring, by gunshot,  the  driver and a peon of the Central (1) [1952] S C.R. 435. 720 Bank  of India Ltd, forcibly removed motor van No.  BY  4388 belonging  to  the bank in which a large sum  of  money  was

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being  carried  from its head office at Gandhi Road  to  its branch office at Maskati.  After abandoning the motor van at a  distance  of  threefourths of a mile,  the  three  gunmen forcibly took possession of the bicycles of some persons who were riding the same and continued their escape.  In  course of  their  flight, they fired and  injured  several  people. Eventually, however, the two appellants were arrested by the police but their companion made good his escape.  The driver and  the peon of the bank who had been injured succumbed  to their  injuries, one dying on the spot and the other in  the hospital on the next day.      After investigation, the Ahmedabad Police, on July  19, 1949,  submitted  to  the City  Magistrate,  Ahmedabad,  two charge sheets Nos. 183 and 188-A against the two  appellants and  the  then unknown absconder in respect of  several  of- fences  committed  in course of the  transaction  that  took place  on  May  26, 1949. The charge sheet No.  183  was  in respect  of offences under sections 394, 397, 302, 307  read with section 84 of the Indian Penal Code, section 19 (e)  of the  Arms  Act, and section 68 (1) of  the  Bombay  District Police  Act.  The charge sheet No. 183-A was in  respect  of offences  punishable under sections 307, 392 read with  sec- tion 84 of the Indian Penal Code, section 19 (e) of the Arms Act  and section 68 (1) of the Bombay District  Police  Act. In each of these charge sheets there was appended a note  to the  effect  that  the District  Superintendent  of  Police, Ahmedabad  City,  had  requested  the  District  Magistrate. Ahmedabad, to move the Government of Bombay/or the constitu- tion    of  a Special Court to hear the cases and  that  the said charge sheets might be transferred to the Special Court as  and when one was so constituted.  In view of  this  note the  City Magistrate did not hold any enquiry but  only  re- manded the appellants.    By a Notification dated August 6, 1949, the Government of Bombay  exercising its powers under section 10 ofthe  Bombay Public Security Measures Act, 1947, 721 constituted a Special Court of criminal Jurisdiction for the Ahmedabad District and under section 11 of that Act appoint- ed Shri M.S. Patil, District and Sessions Judge,  Ahmedabad, as  a Special Judge to preside over the Special  Court.   By another Notification made on the same date,  the  Government of  Bombay  in exercise of powers conferred  by  section  12 the  Act directed  the  Special Judge to  try two particular cases,  namely, the Postal Van dacoity case in  which  there were 9 accused and the Central Bank robbery with murder case in which the two appellants before us were the accused under the  two charge sheets.  In view of the  above  Notification the  City Magistrate, Ahmedabad, transferred the  two  cases against the appellants to the Court of the Special Judge and they came to be numbered as cases Nos. 2 and 3  respectively of  1949.   On December 31, 1949, the Government  of  Bombay directed that the trial of the appellants should be held  by the  Special Judge in the Ahmedabad Central  Prison.   There was  no order of committal by any Committing Magistrate  nor was there any preliminary enquiry by the Special Judge.     On January 13, 1950, the Special Judge consolidated  the two  cases against the appellants with a view to  holding  a joint trial. On the same day he framed five several charges, namely,  four under different sections of the  Indian  Penal Code and one under section 19 (e) of the Indian Arms Act and section 68 (1)of the Bombay District Police Act. On  January 19, 1950, the ’first prosecution witness was examined and up to  January 25, 1950, seventeen prosecution  witnesses  were examined.   The Constitution came into operation on  January

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26, 1930.  The hearing proceeded thereafter and the  deposi- tion  of the last witness was recorded on February 9,  1950. Altogether  sixty-two  witnesses  were  examined.   The  two appellants  were examined under section 342 of the  Code  of Criminal  Procedure on February 10, 1950.   One  handwriting expert  was  examined as a Court witness  on  February   13, 1950,  and  arguments for the prosecution commenced  on  the following day.  After the conclusion of the 722 arguments for the defence on February 23, 1950, the  Special Judge  delivered his judgment on March 13, 1950.   According to  his  findings both the appellants had  committed  eleven different offences punishable under several penal provisions of law as specified by him and he convicted both the  appel- lants of the said eleven offences and sentenced both of them to  death  under section 302/34, Indian Penal Code,  and  to transportation  for life under section 307/34, Indian  Penal Code,  and  to various terms of imprisonment  under  various other sections of the Indian Penal Code, Arms Act and Bombay District Police Act.  The capital sentences were, of course, subject to the confirmation by the High Court.       Both the appellants appealed to the Bombay High Court. The  appeals  along  with  the  reference for  the confirma- tion  of the sentences of death were heard together by Dixit and  Shah  JJ. who by their judgments dated  May  19,  1950, dismissed the appeals and confirmed the sentences of  death. The  appellants applied to the High Court  for  certificates under  articles 132 (1) and 134 (1) (c) of the  Constitution to  enable  them  to appeal to this Court.  The  High  Court (Bhagwati and Dixit JJ.), however, granted the appellants  a certificate only under article 132 (1) but declined to issue any  under  article 134 (1) (c).  The  appellants  thereupon filed the present appeals pursuant to the certificate  under article 132 (1). A petition was filed before us under  arti- cle 132 (3) for leave to urge, as an additional ground, that the  trial was vitiated by reason of misjoinder of  charges. No  such ground was actually advanced before the High  Court and as this Court did not think fit to permit the appellants to raise a new point at this stage it disallowed that  peti- tion.  Accordingly these  appeals must be limited to attack- ing  the  judgment of the High Court on the  ground  that  a substantial question of law as to the interpretation of  the Constitution has been wrongly decided.    The only substantial question of law as to the  interpre- tation of the Constitution urged before us is that 723 the  Bombay  Public Safety Measures Act, 1947,  or,  at  any rate,  that part of section 12 of that Act which  authorises the State government to direct specific "cases" to be  tried by a Special Judge appointed under that Act, offends against the equal protection of law guaranteed by article 14 of  the Constitution  and  is as such void under article 13  on  the principle laid down by this Court in the cases of The  State of West Bengal v. Anwar Ali Sarkar(1) and Kathi Raning Rawat v.  The State of Saurashtra(2). In order to  appreciate  the point  in issue, it is necessary to consider in some  detail the provisions of the impugned Act.        The  Act  came into force on March 23, 1947.  It  was then instituted as "An Act to consolidate and amend the  law relating  to public safety, maintenance of public order  and the  preservation of peace and tranquillity in the  Province of Bombay".  The preamble recited the expediency of consoli- dating  and amending the law relating to those several  mat- ters.  By section 9 (3) the Act was to remain in force for a period of three years.  The Act was amended by Bombay Act  I

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of  1950 and, amongst other things, the words  "security  of the  State, maintenance of public order and  maintenance  of supplies  and  services essential to the  community  in  the State  of  Bombay" were substituted for the   words  "public safety, maintenance of public order and the preservation  of peace and tranquillity in the Province of Bombay"  occurring in the long title and  preamble of the  Act.  The word "six" was  substituted for the word "three" in section  2(3).  The remaining  sections  of the Act are  grouped  under  several heads.   Thus  sections 3 (A1) to 5B are grouped  under  the heading "Restrictions of movements etc." A contravention  of an  order  made  under some of these  sections  is  made  an offence  punishable  as mentioned therein.  The  subject  of "collective  fines"  is  dealt with under  that  heading  in section  6.    "Control  of. camps etc.  and  uniforms"  are covered  by sections 7 and 8, each of which makes a  contra- vention (1) [1952] S.C.R. 284.           (2) [1952] S..C.R. 435.   94 724 of any order made under it an offence. Section 9  prescribes whipping as a punishment for certain offences under  certain Acts  in addition to any other punishment to which  the  of- fender  may be liable under those Acts.  Section 9A  is  set down  under the heading "Control of Publications  etc."  and section  9B under the heading "Control of Commodities  etc." Each  of those sections makes a contravention of  any  order made  thereunder an offence punishable as provided  therein. Sections  10  to 20 which are collected  under  the  heading "Special  Courts" are material for the purposes of the point in issue before us and will have to be carefully noted.  The rest of the sections are set out under the headings "Miscel- laneous" and "Amendments to Acts".      Turning  to  the group of sections  under  the  heading "Special  Courts", it will be noticed that section 10,  like section  3  of the West Bengal (Special Courts)  Act.  1950, and   section  9 of  the  Saurashtra   State  Public  Safety Measures  Ordinance,  1948,  authorises  the  government  by notification in the Official Gazette to constitute  Special. Courts  of  criminal jurisdiction for such’ area as  may  be specified in the notification. Section 11 which  corresponds to  section 4 of the West Bengal Act and section 10  of  the Saurashtra Ordinance empowers the government to appoint as a Special  Judge  to preside over a Special Court  any  person possessing the requisite  qualifications  mentioned therein. Section 12 is expressed in precisely the same terms in which section  5(1)of the West Bengal Act and section  11  of  the Saurashtra Ordinance are’ expressed, namely:      "A  Special Judge shall try such offences or  class  of offences  or such cases or class of cases as the  Provincial Government  may,  by  general or special  order  in  writing direct."      It  will be noticed that the offences mentioned in  the above  section are not limited to offences created  by  this Act  only but also cover offences under any other law,  e.g, the Indian Penal Code,  Section 13 runs thus 725      "13.   (1) A Special Judge may take cognizance  of  of- fences without the accused being committed to his Court  for trial.       (2) A Special Judge shall ordinarily record a memoran- dum  only of the substance of the evidence of  each  witness examined,  may  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

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adjourn  any trial for any purpose unless  such  adjournment is, in his opinion, necessary in the interests of justice.     (3)   In  matters not coming within the  scope  of  sub- sections (1) and (2), the provisions of the Code, in so  far as they are not inconsistent with the provisions of sections 10 to 20, shall apply to the proceedings of a Special Judge; and  for the purposes of the said provisions, the  Court  of the Special Judge shall be deemed to be a Court of Session."     Under section 14 the Special Judge may in his discretion direct the evidence of a person who is not in a position  to attend  the  Court to be recorded  on  commission.  Enhanced punishments are provided for certain offences by section  15 as follows:     "Notwithstanding   anything  contained  in   the  Indian Penal Code, whoever commits an offence of attempt to  murder may,  in lieu of any punishment to which he is liable  under the  said Indian Penal Code, be punishable with  death,  and whoever  commits an offence of voluntarily causing  hurt  by stabbing  may.  in  lieu of any punishment to  which  he  is liable under the said Indian Penal Code, be punishable  with death or transportation for life."     Section  16  authorises the Special Judge  to  pass  any sentence  authorised  by law and section   17  prescribes  a special rule of procedure for recovery of fines. Section  18 gives  a right of appeal to a person convicted  on a   trial held by a Special Judge  within  a  period  of fifteen  days from ’the date of sentence and also empowers the High  Court to call for the records of the proceedings of any 726 case  tried by a Special Judge and in respect of  such  case exercise any of the powers conferred on a Court of appeal by sections  423, 426 and 428 of the Code. Sub-section  (3)  of section 18 runs thus:      "No Court shall have jurisdiction to transfer any  case from  any Special Judge or to make any order  under  section 491  of the Code in respect of any person triable by a  Spe- cial  Judge  or,  save as herein  otherwise  provided,  have jurisdiction  of any kind in respect of proceedings  of  any Special Judge."   Thus  the right to apply for transfer of the case and  the right to apply for revision are denied to an accused who  is tried  by a Special Judge.  Ordinary law is, by  section  19 made applicable in so far as it is not inconsistent with the provisions  of  sections 10 to 20. Section  20  provides  as follows :-      "Notwithstanding anything  contained  in the Code,  the trial  of  offences before a Special Judge shall not  be  by jury or with the aid of assessors."    Thus,  besides  providing  for  enhanced  punishment  and whipping  the  Act  eliminates  the  committal   proceedings [section 13 (1)], permits the Special Judge to record only a memorandum of the evidence, confers on him a larger power to refuse  to summon a defence witness, than what is  conferred on a Court by section 257(1) of the Code of Criminal  Proce- dure and also deprives the accused of his right to apply for a transfer or for revision.  That these departures from  the ordinary  law  cause prejudice to persons subjected  to  the procedure  prescribed  by  the Act cannot for  a  moment  be denied.   This Court has, by its decisions in the  State  of West  Bengal  v.  Artwar Ali  Sarkar (supra)  and  in  Kathi Raning  Rawat v The State of Saurashtra (supra).  recognised that  article 14 condemns discrimination not only by a  sub- stantive  law  but also by a law of procedure and  that  the procedure prescribed by the corresponding provisions in  the West Bengal Special Courts Act and the Saurashtra  Ordinance

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which introduced similar departures from the ordinary law of procedure constituted a discrimination 727 against  persons  tried by the Special  Judge  according  to procedure  prescribed  by those pieces  of  legislation  and finally that, in any event, section 5 (1) of the West Bengal Act  and  section 11 of the Saurashtra  Ordinance,  both  of which corresponded to section 12 of the Bombay Public  Secu- rity Measures Act, in so far as they authorised the  govern- ment  to direct specific and particular "cases" to be  tried by  the  Special Judge, was unconstitutional and  void.   In view  of the departures from the ordinary law brought  about by  the Bombay Public Safety Measures Act, 1947,  which  are noted  above, it cannot but be held, on a parity of  reason- ing, that at any rate section 12 of the Act, in so far as it authorises the Government to direct particular "cases" to be tried by a Special Judge, is also unconstitutional.      Learned  Attorney-General  appearing for the  State  of Bombay  does not controvert the legal position as  discussed above but he points out that the offences were committed  in May,  1949, that the Special Court was constituted  and  the Special  Judge  was  appointed in August,  1949,  and  these "cases"  were directed to be tried by the Special  Judge  in August, 1949, that the Special Judge actually framed charges against the  appellants   on January 13,  1950, and that the depositions  of seventeen  witnesses  had  been taken before the Constitution came into force and when the Bombay  Public Safety  Measures Act, 1947, was valid in its  entirety.   He contends, on the authority  of the decision of this Court in Keshavan  Madhava Menon v. The State of Bombay(1). that  the Constitution  has no retroactive operation and that it  does not  affect the rights acquired or the liabilities  incurred under  laws  which, before the advent of  the  Constitution, were  valid, and, quoting from the jud ment of the  majority of  the  Bench in that case, that "such laws exist  for  all past transactions and for enforcing all rights and  liabili- ties accrued before the date of the Constitution", he  urges that the legal proceedings commenced before the Constitution came into (1) [1951] S.C.R.. 228. 728 operation  are  in  no way affected by it and  may  well  be proceeded with.      In Keshavan Madhava Menon’s case, the appellant was the Secretary of People’s Publishing House, Ltd., of Bombay.  In September, 1949, he was alleged to have published a pamphlet which, according to the Bombay Government authorities was  a "news  sheet"  within the meaning of section 2  (6)  of  the Indian  Press (Emergency Powers) Act, 1931. On  December  9, 1949, he was arrested and a prosecution was started  against him  in  the  Court of the Chief  Presidency  Magistrate  at Bombay for having published the pamphlet without the author- ity  required  by section 15(1) of the Act  and  for  having thereby committed an offence punishable under section 18  of that  Act.  During the pendency of the proceedings the  Con- stitution of India came into force on January 26, 1950.   On March  3,  1950, the petitioner filed  a  written  statement submitting, inter alia, that the definition of "news  sheet" as given in section 2(6) of that Act, and sections 15 and 18 thereof  were  inconsistent with article  19(1)(a)  and,  as such,  void under article 13 of the Constitution.  This  was followed  up by a petition filed in the High Court on  March 7,  1950, under article 228 of the Constitution. The  Bombay High Court considered it unnecessary to deal with the  ques- tion  whether  sections  15 and 18  were  inconsistent  with

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article  19(1)(a)  but held that, Assuming  that  they  were inconsistent,  the  proceedings commenced under  section  18 before the commencement of the Constitution could  neverthe- less  be proceeded with.  The High Court took the view  that the  word "void" was used in article 13(1) in the  sense  of repealed"  and that consequently it attracted section  6  of the  General Clauses Act which by article 367 was  made  ap- plicable  for the interpretation of the  Constitution.   The High Court having dismissed the applicant the appellant came up  on  appeal  before this Court after  having  obtained  a certificate granted by the High Court under’ article 132 (1) of  the Constitution. the majority of this Court  held  that the Constitution and no retrospective effect-but was  wholly prospective 729 in its operation and as the existing laws, in so far as they were inconsistent with the fundamental rights, were rendered void  only to the extent of their inconsistency,  they  were not  void for all purposes but were void only to the  extent they  came  into conflict with the  fundamental  rights.  In other  words, the majority of this Court held that while  on and  after the commencement of the Constitution no  existing law  could,  by reason of article 13 (1),  be  permitted  to stand  in the way of the exercise of any of the  fundamental rights,  that  article could not be read as wiping  out  the inconsistent  law  altogether from the statute book  and  as obliterating its entire operation on past transactions,  for to  do so would be to give it retrospective effect which  it did not possess. Such law, it was held, existed for all past transactions and for enforcement  of rights and  liabilities accrued  before  the date of the Constitution. To  the  same effect  were the observations of Mahajan J. who delivered  a separate  but concurrent judgment, namely, that a  provision that  with  effect from a particular date  an  existing  law would be void to the extent of the repugnancy had no  retro- spective operation and could not affect pending prosecutions or  actions  taken under such law, and there was in  such  a situation  no necessity for introducing a saving clause  and that  it did not need the aid of a legislative provision  of the nature contained in the Interpretation Act or the Gener- al Clauses Act. According to him, not being retrospective in its operation, the Constitution could not, therefore, in any way affect prosecutions started for punishing offences  that were  complete under the law in force at the time they  were committed.  It will be noticed that in that case the  prose- cution  was started according to the ordinary law of  proce- dure.  The only question there was whether a  criminal  pro- ceeding instituted for a contravention of the provisions  of the Indian Press (Emergency Powers) Act which amounted to  a completed offence before the date of the Constitution  could be continued after the Constitution came into force where no change  in procedure was involved. The result of that  deci- sion iS that although 730 the  acts which before the Constitution constituted  an  of- fence  under that Act would not, if done after the  date  of the Constitution, amount to an offence, nevertheless as  the Constitution  had  no  retrospective operation  it  did  not obliterate  the  offence completed before the  date  of  the Constitution and the offender could, therefore, be proceeded against  after the Constitution came into force.  It was  in this  sense that it was stated in Keshavan  Madhava  Menon’s case that the law existed for the past transactions and  for enforcing all rights acquired or liabilities incurred before the date of the Constitution.  If the law did not exist, the

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offence  created  by it would ipso facto  disappear  and  no question of punishing the non-existing offence could  arise. The  observations made in that case related to the  substan- tive  rights acquired or liabilities incurred under the  Act before  the Constitution came into force. Under what  proce- dure  the rights and liabilities would be enforced  did  not come  up  for consideration in that case, as  the  procedure adopted  throughout  was  the same.  namely,  the  procedure prescribed by the Code of Criminal Procedure.      The law of procedure regulates legal proceedings gener- ally  from its inception up to its termination  and  usually connotes  a  continuous process.  ]he Bombay  Public  Safety Measures  Act, 1947, by sections 10 to 70 under the  heading "Special  Courts"  prescribes a special  procedure  for  the trial  by  the Special Judge of "such offences or  class  of offences or cases or class of cases as the government may by general  or special order in writing direct".  The  offences or  cases so directed to be tried by the Special Judge  need not  be, or relate to, the special offences created  by  the Act  itself  but  may be or  relate to, any   offence  under any law, e.g.,  Indian  Penal Code.  Arms Act and the Bombay District  Police  Act.  It has been seen  that  the  special procedure  prescribed  by  the impugned  Act  constitutes  a departure from the ordinary law of procedure and is, in some important  respects,  detrimental  to the  interest  of  the persons subjected to it and as such is discriminatory.  The 731 discrimination does not end with the taking of cognizance of the case by the Special Judge without the case being commit- ted  to him but continues even in subsequent stages  of  the proceedings in that the person subjected to it cannot,  even at  those subsequent stages, have the benefit of having  the evidence for or against him recorded in extenso, may not get summons  for all witnesses he wishes to examine  in  defence only on the ground that the Special Judge does not  consider that such evidence will be material and cannot exercise  his right to apply to a superior Court for transfer. of the case even  though  the  Special Judge has  exhibited  gross  bias against  him or to apply for revision of any order  made  by the  Special  Judge. As the Act ’was valid in  its  entirety before  the date of the Constitution, that part of the  pro- ceeding  before the Special Judge, which, up to  that  date, had  been  regulated  by this special  procedure  cannot  be questioned, however discriminatory it may have been, but  if the discriminatory procedure is continued after the date  of the Constitution, surely the accused person may legitimately ask:  "Why am I to-day being treated differently from  other persons  accused of ’similar offences in respect  of  proce- dure?  It is stated in Maxwell’s Interpretation of Statutes, 9th Edn., p. 232      "No  person has a vested right in any course of  proce- dure.   He has only the right of prosecution or  defence  in the manner prescribed for the time being by or for the Court in  which he sues, and, if an Act of Parliament alters  that mode  of  procedure, he has no other right than  to  proceed according to the altered mode."    If  in the absence of any special provision to  the  con- trary,  no  person has a vested right in procedure  it  must follow as a corollary that nobody has a vested liability  in matters of procedure in the absence of any special provision to  the contrary.  If this is the position when the  law  of procedure is altered by statute, why should the position  be different when the Act prescribing the discriminatory proce- dure  becomes 732

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void  by  reason of its repugnancy to the  equal  protection clause of the Constitution?  Although the substantive rights and  liabilities acquired or accrued before the date of  the Constitution remain enforceable, as held in Keshavan Madhava Menon’s case, nobody can claim, after that date, that  those rights or liabilities must be enforced under that particular procedure  although it has, since that date, come into  con- flict with the fundamental right of equal protection of laws guaranteed by article 14.      It  is said, in reply, that in this case there  is,  in law,  no discrimination which can be said to be  within  the mischief  sought to be prevented by article 14.  The  appel- lants  are persons whose "cases" had been properly sent  for trial to the Special Court before the Constitution came into force and, therefore, they cannot complain if the  procedure prescribed  by the Act is continued to be applied  to  their "cases" although such procedure cannot be applied to "cases" which had not been referred to the Special Court up to  that date, for the appellants cannot claim to be similarly  situ- ated with persons whose "cases" had not been directed to  be tried by the Special Court before the date of the  Constitu- tion or who committed similar offences after that  date.  In the circumstances.  the continued application of the  proce- dure  laid  down in the impugned Act to the "cases"  of  the appellants cannot. it is contended, amount to discrimination in  the  eye of the law and is, therefore,  not  within  the inhibition  of the equal protection clause of the  Constitu- tion.  Article 14 being thus out of the way,  the  procedure laid  down in the impugned Act continues to be valid in  law as regards the persons whose’ ’cases" had been subjected  to it  before  the advent of the Constitution I and so  far  as those  persons are concerned there has   been no  change  in the procedure and, therefore, their "cases" must continue to be  regulated  by that procedure.  We are unable  to  accept this  argument  as sound.  It is now well  established  that while  article  14  forbids class legislation  it  does  not forbid reasonable Classification for the purposes of  legis- lation.  In 733 order, however, to pass the test of permissible  classifica- tion,  two  conditions must be fulfilled, namely,  (i)  that the  classification must be founded on an intelligible  dif- ferentia  which  distinguishes persons or  things  that  are grouped  together from others who are left out of the  group and  (ii) that differentia must have a rational relation  to the  object  sought  to be achieved by  the  Act.   What  is necessary is that there must be a nexus between the basis of classification and the object of the Act.  To take an  exam- ple:  Under section 11 of the Contract Act persons who  have not attained majority cannot enter into a contract.  The two categories are adults and minors.  The basis of  classifica- tion is the age.  That basis obviously has a relation to the capacity  to enter into a contract. Therefore,  the  section satisfies both the requirements of a permissible classifica- tion.   In  the  present case, although the  first  part  of section 12of the Bombay, Act, like section 5 (1)of the  West Bengal  Actor  section 11 of the Saurashtra  Ordinance,  may indicate and imply a process of classification, the section, in so far as it authorises the government to direct particu- lar  "cases"  to  be tried by the Special  Court,  does  not purport  to proceed upon the basis of any classification  at all.  Further, the supposed basis of the alleged classifica- tion,  namely  the fact of reference to  the  Special  Court before the Constitution came into effect, has no  reasonable relation  to the objects sought to be achieved by  the  Act.

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The  avowed objects of the Act recited in the  preamble  are the expediency of consolidating and amending the law  relat- ing  to  the security of the State,  maintenance  of  public order and maintenance of supplies and services essential  to the  community in the State of Bombay. If the  consideration of  the security of the State or the maintenance  of  public order  requires  the application of  the  special  procedure there  is  no  obvious reason why it should  be  applied  to "cases"  already referred and not to cases not yet  referred at  the  date of the Constitution.  The  same  consideration applies equally to both categories of cases.  It is,  there- fore, clear that there is no nexus 734 which  connects the basis on which the supposed  classifica- tion is founded with the objects of the Act, for the  object of the Act is wide enough to cover both categories of "cases ".  Therefore,  it  is  not  a  permissible  classification. Indeed,  it is an instance of fanciful classification  which has  no rational basis at all.  We see no particular  reason why  the special procedure should be applied to  the  appel- lants’ "cases" any more than it should be applied to "cases" not  referred to the Special Court up to the  26th  January, 1950.  No special or peculiar circumstances have been  shown to  exist which may make the appellants’  "cases"  specially suited  to  this  special procedure.  In the  absence  of  a rational basis of classification, as explained above,  there can  be no justification, after the advent of the  Constitu- tion, for depriving the appellants of the right to move  the Court for transfer or for revision or to obtain process  for the  attendance of defence witnesses or of having  the  evi- dence  of  the witnesses recorded as in  an  ordinary  trial which  is  available  to other persons  accused  of  similar offences and prosecuted according to the ordinary  procedure laid down in the Code of Criminal Procedure.  It is,  there- fore,  clear that in this case the discrimination  continued after the Constitution came into force and such continuation of the application of the discriminatory procedure to  their cases  after  the  date of the  Constitution  constituted  a breach  of their fundamental right guaranteed by article  14 and being inconsistent ’with the provisions of that  article the  special procedure became void under article 13  and  as there  is no vested right or liability in matters of  proce- dure  the appellants are entitled to be tried  according  to the  ordinary procedure after the date of the  Constitution. Their  complaint   is  not for something that  had  happened before  26th  January,  1950, but  is  for  unconstitutional discrimination  shown against them since that  date.   Their grievance, their cause of action as it were, is post-consti- tution  and, therefore, must be scrutinised and examined  in the light of their constitutional rights.  So viewed,  there can be no doubt or 735 question that they have been discriminated against after the date of the Constitution in the matter of procedure.  It has already  been  held in the West Bengal  and  the  Saurashtra cases that discrimination can lie in procedure just as  much as in a substantive law. Therefore, the continuation of  the trial after that date according to the discriminatory proce- dure  resulting in their conviction and sentence  cannot  be supported.  Indeed in a sense the Special Judge’s  jurisdic- tion  came  to an end, for he was enjoined to  proceed  only according to the special procedure and that procedure having become void as stated above, he could not proceed at all  as a  Judge of a Special Court constituted under  the  impugned Act. The learned Attorney-General relied on the decision  of

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the   Privy  Council  in  Keshoram  Poddar  v.   Nundo   Lal Mallick(1).  The Calcutta Rent Act, 1920, enabled the  land- lord  or tenant of premises in Calcutta to obtain  from  the Controller of Rents a certification of the standard rent  of the premises and also gave a right to apply to the President of  the  Calcutta Improvement Tribunal for revision  of  the order  of the Controller.  The Act was originally to  be  in force  for  a period of three years which  was  subsequently extended  until  the  end of March, 1924,  and  finally  the figure  1927 was substituted for 1924 with a  proviso  "that after 31st March, 1924, this Act shall cease to apply to any premises  the rent of which exceeded Rs. 250 a month".   The appellant was let into possession on 1st June, 1920, but the rent  payable was not then fixed. He remained in  possession until  March, 1923, and the question raised by the case  was what  rent ought to be paid for that period  of  occupation. Disputes  having arisen, the appellant applied to  the  Con- troller and on 23rd October, 1922, the Controller fixed  the rent  at Rs. 4,500 per month.  On 25th November,  1922,  the appellant  appealed  to  the President  of  the  Improvement Tribunal to revise that decision.  The revision  application could not be taken up by the President until long after 31st March, 1924, and when it was eventually (1) I.L.R. 54 Cal. 508 ; 54 I.A. 152. 736 posted  before him on 3rd August, 1924, he held that had  no jurisdiction to determine the matter, for the Act had ceased to  apply  to the premises.  It will be  observed  that  the application  to  the  President was made  long  before  31st March,  1924, and that the period for which the rent had  to be determined was between June, 1920, and March, 1923.   The Privy Council held  that the  application  of  the  Act  was when  the parties began to move under it and that  was  done before  March, 1924, and that the President accordingly  had jurisdiction  to decide it.  That decision appears to us  to have  no application to the facts of the present  case,  for the  problem before us does not relate to a period  anterior to  the Constitution when the Act was good and  the  Special Judge  had  authority to apply the special  procedure.   The point  for decision now is whether the continuation  of  the procedure prescribed by the Act after the Constitution  came into force operates to the prejudice of the appellants  and, as  such, offends against their newly  acquired  fundamental right  of equal protection of law guaranteed by article  14. The  Constitution has no retrospective operation to  invali- date that part of the proceedings that has already been gone through  but  the Constitution does not permit  the  special procedure  to stand in the way of the exercise or  enjoyment of  post-constitutional rights and must,  therefore,  strike down  the  discriminatory procedure if it is  sought  to  be adopted after the Constitution came into operation. To  that situation,  the  decision of the Privy Council  referred  to above can have no application.      For reasons Stated above, the conviction of the  appel- lants  on trial held by the Special Judge after the date  of the  Constitution  according to the special  procedure  pre- scribed by the impugned Act and the sentences passed on them cannot  be supported and these appeals must,  therefore,  be allowed and the convictions and sentences must be set aside. The appellants are entitled, after the Constitution, not  to be  discriminated  against in matters of procedure  and  are entitled to be tried according to law.  We, therefore, 737 direct  that they be tried for the offences alleged to  have been committed by them according to law and in the  meantime

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they be retained in custody as undertrial prisoners.                                Appeals allowed. Agent for the appellants: Naunit Lal. Agent  for the respondent: P.A. Mehta. Agent for the intervener: Rajinder Narain.