MRy 20

SUPREME COURT REPORTS

LACHMANDAS KEW ALRAM AHUJA

AND ANOTHER

fl.

[1952]

THE STATE OF BOMBAY. [PATANJALI SAsTRI C.J., MEHR CHAND MAHAJAN, MuKHERJEA, DAs and CHANDRASEKHARA AIYAR, JJ.]

Constt.tution of India, .tlrts. 13, 14-Bombay Public Safety Measures Act, 1947, s. 12-Provision empowering Government to refer 'cases' for trial by Special Judge-Validity-Discriminatior> -Proceedings commenced before 26th January, 195(), before Special

fudge-Procedure discriminatory-Continuation of trial under special procedure-Validity of trial-Applicability of Constitution to pe"nding trials.

field, pe1 :MAHAJAN, MuKHERJEA, DAs and

CHANDRASEKHAR/.

ArYAll, JJ. (PATANJAL! SASTR! C. J. dissenting).-Section 12 of the Bombay Public Safety Measures Act, 1947; in so far, at any rate~ as it authorises the Govern1nent to direct particular "cases" to be tried by a Special Judge appointed under the Act does not purport to proceed on any classification and therefore contravenes Art. 14 of the Constitution and is void under Art. 13 on the pr!aciples laid down in the cases of State of Bengal v., Anwa1 Ali Sarkar ([1952] S.C.R. 284) and Kathi Raning Raf{)at v. Th, State of Saurashtra ([1952) S.C.R. 435).

'fhe appellants who were accused of having con11nitted xnurder and other serious offences were directed by the Governn1ent of Bombay by an order made on the 6th August, 1949, to be tried under the Bombay Public Safety Measures Act by a Special JuJgc appointed under the Act, charges were fra1ned against then1 on the 13th January, 1950, and they \Vere convicted in March,

1950. On appeal it was contended before the High Court that the trial and conviction \Vere illegal as the Bombay Public Safety Measures Act was void under Art. 13 read \Vith r\rt. 14 of the Constitution which came into force on the 26th ]:Jnuary, 1950, but the 1-Iigh Court held that as the procee<lings:

a.gaint the accused had commenced before the Constitution, the provisions of Arts. 13 and 14 did not apply and the conviction

\Vas not illegal.

Held, by a ma1or1ty, that although substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable, it caqnot be held that after that date, thoscrights or liabilities must be enforced under the particular pro- 1-' cedure that \vas in force before that date, although it has since that date been repealed or come into conflict with the fundamental • right to equal protection of the laws guaranteed by the

Constitution, as there is no vested right in procedure. The fact of reference of "cases" to the Special Judge before the Con- 1titution came into force has no reasonable relation to the objects sought to be achieved by the Act, the discrimination therefore continued after the Constitution came into force and

uth continuation of the application of the discriminatory procedure to the cases of the appellants after the date of the Constitution constituted a b.-each 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. ]. (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 :i Special Judge for trial, the trial of the appellants which had validly started before the Special Judge who had ben empower ed 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 prosecution commenced before the Constitution came into force.

The jurisdiction of the Special Judges validly created and exercised before tl1e Constitution and their competence to try the cases referred to them cannot be affected by the special pro-. ccdure becoming discriminatory.

The correct view is that Art. 14 does lnot affect pencJling 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.

CRIMINAL APPELLATE Jumsn1cT10N: 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 of 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.

Lachmandas Kewalram Ahuja and Another v.

The State of Bombay.

Lachmandas Kewalram Ahuja and Anl!ther

The State of Bombay.

Patanjali Sastri C. /.

M. C. Setalvad, Attorney-General for India Joshi, with him) for the respondent.

[1952]

(G. N.

A. A. Peerbhoy and J. B.

Dadachanji for the Intervener.

1952.

May 20.

The judgment of Mehr Chand Mahajan, Mukherjea, Das and Chandrasekhara Aiyar, JJ. was delivered by Das J. Patanjali Sastri C.J. delivered a separate dissenting judgment.

PATANJALI SASTRI C.J.-I regret I am unable to agree 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, Ahmedabad, 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 dispensed 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 appellants to the High Court which, however, confirmed the conviction and sentence in each case.

An objection that the trial was illegal as the imug; ied Act was void under article 13 ( 1) of the Const1tut10n; read with article 14, was overruled on the ground that

. .

' ...

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 Madhav 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 decision 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 identical terms with section 12 of the impugned Act) is discriminatory and void in so far, at any rate, as it empowers the State Government to direct "cases" to be tried by a Special Court under a special

procedure.

Acoorldingly, 1t was claimed that the Special Judge had no jurisdidion to try the appellants applying the special procedure prescribed by the impugned Act.

Granting, however, that section 12 of the impugned Act must, in view of the decisio.n in Anwar Ali Sarkar's case(2), be held to be disi; riminatory and void in so far as it empowers the State Government to refer individual cases to a Special Judge for trial, it does not 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 subsequently coming into force. It is to be noted that the West Bengal case(2 ) was argued on the basis that article 14 of the Constitution was applicable to the proceedings 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 position here is different.

The appellant's case was sent to the Special Judge for trial by notiiication dated 6th August, 1949, and the Judge took cognisance of it, framed the charges and proceeded with the trial to a considerable extent before the commencement of the Constitution on 26th

(1) [1950] 52 Born. L.R. 540.

( 2) {1952] S.C.R. 284. 3-8 S.C.India/71

Lachmandas

Ki:walram

Ahuja tmd A notlli:r

T ht: State of Bombay.

Patanjali Sastri C. f.

Lachmandas

Kewalram

Ahuia and Another

The State of

Bombay.

Pataniali Sas1ri C. J, .

January, 1950.

There could be no question, therefore, of the appellants' fundamental right under article 14 being infringed up to that point, as it has been held by this court in Keshavan Madhava Menon's case(') that the provisions of the Constitution relating to fundamental rights have no retrospective operation and do not affect a criminal prosecution 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 legislature, should apply the same law, substantive and procedural, 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 Ali Sark_ar's case(") 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 uch 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 disadvantageous to them in some respects, involved discrimination against them. It is, therefore, daimed 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 commenced and was pending at the commencement of the Constitution, were in the same situation with persons who committed the same offences after the Constitution came into

{') [1951] S.C.R. 228.

( 2 ) [1952] S.C.R. 284.

force ? It seems to me that the situation and circumstances are different in the two cases and no compla'int of discriminatory treatment by reason only of the trial having been continued under the special procedure can be sustained, even assuming that the ordinary procedure under the Criminal Procedure Code became applicable to the appellants on and after 26th January, 1950.

Such assumption, however, seems to be open to question. Section 1, sub-section (2), of the Criminal Procedure Code enacts that "Nothing herein contained shall affect ........ any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force ...... " The jurisdiction 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 entitled 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 directed to be tried by the Special Judge. It was said that section 1 (2) of the Criminal Procedure Code pre-supposes a valid law conferring a special jurisdiction 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

Lachmandu

Kewalram Ahuja and Another.

The Stat11 of Bombay.

Patanjali Sastri C. /.

h7. 1952

Lachmandas Kewalram

Ahuia and Another

The State of Bombay.

Patanjali .Sastri C. /.

under the normal procedure after 26th January, 1950, in which case alone they would say "Why not try us lUlder the Code; why discriminate ?" But, having regard to section 1(2) of the Code, the normal procedure would become applicable only if the special procedure is excluded as being discriminatory and void.

The argument thus proceeds in a circle.

Again, it is diflicult 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 appellants' contention, the special procedure prescribed by the impugned Act became discriminatory and void after 26th January, 1950, and, therefore, inapplicable to what remained of their trial.

But, could this circumstance affect the competence of the Special Judge to try their case of which he had validly taken cognisance? In Keshoram Poddar v. Nundo Lal Mullick(') 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 jurisdictioo 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 out the application of the impugned Act.

I find it difficult 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 Contrd!. Tribunal to deal with a pending matter after 31st March, 1924, when its jurisdiction was restricted. ·

(') [1927] 54 I.A. 152.

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 "NotwithstancJjng 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 assessors, 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 Special Judge, the scheme of trial by Special Courts may well break down. The alternative courses open to the Court would, therefore, seem to he either to hold that article 13 (1), read with article 14, does not affett 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 inconsistnt laws, or to wipe them out altogether from the statute-book, for, to do so will be to give them retrospective effect which, we have said, they do not possess.

Such laws exist for all past transactions and for enforcing a/.l

. (1) (1951 J S.C.R. 228.

~. ,

Lachmand11s

Kewalram

Ahuja and Another v.

The State of Bombay.

Patanjali Sastri C. /.

Lachmamlas

Kewal ram

Ahuia uzd Another v.

The State of Bombay.

Patanjali Sastri C. /.

rights and liabilities accrued before the date of the Constitution". (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 applicable 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 evidence. The Special Judge is empowered to record only a 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 wijl not be

material" (s. 13), while under section ?57 (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 vexation 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 question of such departures vitiating the trial.

I am unable to regard the

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 meaning 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 with'in 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 appellants 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. Patil on March 13, 1950, as the Special Judge appointed under the Bombay Public Security Measures Act, 1947, whereby he convicted 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.

Lachmandas

Kewalram

Ahuja 11nd Another v.

The State of Bombay.

Patanjali Sastri C, /.

r" 19'2

Lachmandas

Kewalram Ahuja and Another

The State of

Bombay.

Dai /.

Bank of India Ltd., forcibly removed moto~ van No.

BY 4388 belonging to the bank in which 11 large sum of money was 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 183-A against the two appellants and the then unknown absconder in respect of several offences cmnmi_tted 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 34 of the Indian Penal Code, section 19 ( e) of the Arms Act, and sect; on 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 section 34 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, Ahrnedabad City, had requested the District Magistrate, Ahmedabad, to move the Government of Bombay for the constitution 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 remanded the appellants.

By a Notification dated August 6, 1949, the Government of Bombay exercising its powers under section 10 of the Bombay Public Security Measures Act, 1947,

. .J

constituted a Special Court of criniinal jurisdiction for the Ahmedabad District and under section 11 of that Act appointed 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 of 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 wliich 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 ~949.

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 India 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 26,

1950. Tlie hearing proceeded thereafter and the deposition 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 argumets for the prosecution commenced on the following day.

After the conclusion of the

Lzchmandas

Kewalram Ahuia and Another

The State of Bombay.

DllS /.

' '

Lflchmandas

Kewal ram Ahuia 11nd Another

The State of Bombay.

Das/.

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 appellants 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 confirmation 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 article 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 petition.

Accordingly these appeals must be limited to attacking 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 interpretation of the Constitution urged before us is that

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 J 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 pont 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 intituled as "An Act to consolidate and amend the law relating to public safety, maintenance of public -Jrder and the preservation of peace and tranquillity in the Province of Bombay".

The preamble recited the expediency of consolidating and amending the law relating to those several matters.

By section 2 (3) the Act was to remain in force for a period of three years. The Act was amended by Bombay Act I 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 (Al) 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 contravention

(1) [1952] S.C.R. 284.

(2) [1952] S.C.R. 435.

Lachmandas

Kewalram Ahuja and Another

v. The State of Bombay.

Das/.

Lachmandas Kewalram Ahuja and Another v.

The State of Bombay.

Das f.

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 offender may be liable under those Acts.

Section 9 A 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 provi.ded 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 "Miscellaneous" 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 Coun 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 Sp.ecial 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: I

"13. (1) A Special Judge may take cognizance of offences without the accused being committed to his Court for trial.

(2) A Special Judge shall ordinarily record a memorandum 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 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 provis'ions 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 of 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 com-

~ mission.

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 tD call for the records of the proceedings of any

Lachmandas

Kewalram Ahuia and Another

The St11te of Bombay.

Das f.

Lachmandas Kewalram Ahuia .and Another

The State of Bombay.

Das/.

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 af the Code in respect of any person triable by a Special 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 Procedure 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 person 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. Anwar Ali Sarkar

(supra) and in Kathi Raning Rawal v. The State of Saurashtra (supra), recognised that article 14 condemns discrimination not only by a substantive Ia:w but also by a law of procedure and that the procedure prescribed by the corresponding provisioI)s in the West Bengal Special Courts Act and the Saurashtra Ordinance which introduced similar departures from the ordinary law of procedure constituted a discrimination

......

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 Security Measures Act, in so far as they authorised the government to direct specific and particular "cases" to be tried by the Special fuoge, 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 reasoning, 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 d'iscussed 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 advnt of the Constitution, were valid, and, quoting from the judgment of the majority of the Bench in that case, that "such laws exist for all 'past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution", he urges that the legal proceedings commenced before the Constitution came into

( 1)

[ 1951 J S.C.R. 221. ' 1 ; ; v,

Lachmandas Kewalram Ahuia and Anoth~

The State of Bombay.

Das/.

Lachmandas

Kewalram

Ahuia and Another

The State of Bombay.

Das f.

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 authority 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 Constitution 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 question whether sections 15 and 18 were inconsistent with 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 nevertheless be proceeded with. The High Court took the view that the word "void" was used in artide 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 applicable for the interpretation of the Constitution. The High Court. having dismissed the application 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

bad no retrospective effoct but was wholly prospective

.. ~

,_,

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 incensistent 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 transactiom 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 retrospective operation and could not affect pending prosecurions 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 said of a legislative provi--

sioa of the nature contained in the Interpretation Act or the General Clauses Act.

According to him, not bc.ing 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 prosecution was started according to the ordinary law of procedure.

The only question there was whether a criminal proceeding 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 decision is that although

+-S s, c. India/71

LllchmandM

Kewalram

Ahuja .,,, Anotlur

Tlie Stale of

Bomb•y.

DM /.

Lachmandas Kewalram

Ahuja •nd Another v.

The State of Bombay.

Das/.

the acts which before the Constitution constituted an offence 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 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 thi: substantive rights acquired or liabilities incurred under the Act before the Constitution came into force.

Under what procedure 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 generally from its inception up to its termination and usually connotes a continuous process.

The Bombay Public Safety Measures Act, 1947, by sections 10 to 20 under the heading "Special Courts" prescribes 2 special procedure for the trial by the Special Judge of "such ofl:ences 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

discrimination does not end with the taking of cognizance of the case by the Special Judge without the case being committed 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 proceeding before the Special Judge, which, upto 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 today being treated differently from other persons accused of similar offences in respect of procedure? It is stated in Maxwell's Interpretation of Statutes, 9th Edn., p. 232 :-

"No person has a vested right in any course of procedure.

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 contrary, 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 posil-) tion when the law of procedure is altered by statute, why £hould the position be different when the Act prescribing the discriminatory procedure becomes

Lachmantlu

Kewalram

Ahuia and Another

The State of

Bombay.

Das /.

Lttchmandas

Kew air am

Ahuja •nd Another v.

The State of

Bomlxzy.

Das f.

".oid by reason of its repugnancy to the equal protect10n clause of tbe Constitution.

Although the substantive rights and liabilities acquired or accrued before tbe date of tbe Constitution remain enforceable, as held in Keslzava11 Madhava Menon's case, nobody can claim, after that date, that those rights or liabilities must be enforced under that particular procedure although it bas, since that date, come 'into conflict with tbe fundamental right of equal protection of laws guaranteed by article 14.

It is said, in reply, that in this case there 1s, rn law, no discrimination which can be said to be within the m'ischief sought to be prevented by artide 14. TI1e appellants 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 situated with persons whose "cases" had not been directed to be tried by the Special Court before the date of the Constitution or who committed similar offences after that date.

In the circumstances, the continued application of the procedure laid down in the impug ned 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 protlection clause of the Constitutibn.

Article 14 being thus out of the way, the procedure laid down in the impugned Act continues to be valid in law as regards tbe persons whose "cases" had been subjected to it before the advent of the Constitution 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 claS< legislation it does not forbid reasonable classification for the purposes of legislation. In

order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely,

(i) that the classification must be founded on an intelligible differentia which distingu'ishes persons or things that are grouped together from others who are left out of the group and (ii) that 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 example : 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 classification is the age. That basis obviously has a relation to the capacity to enter into a contract.

Therefore, the section satisfies both the requirements <lf a permissible classification. In the present case, although the first part of section 12 of the Bombay Act, like section 5 ( 1) of the West Bengal Act or 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 particular "cases" to be tried by the Special Court, does not purport to proceed upon the basis of any classificati()n at all.

Further, the supposed basis of the alleged classification, 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. The avowed objects of the Act recited in the preamble are the expediency of consolidating an<l amending the law relating 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, therefore, clear that there is no nexus

L"chmandtU

Kewalram

Ahujll and A11ot!zer

"' The State of Bombay.

Das/.

Lachmandas ·

Kcwalram

Ahuja •nd Another v.

The State of Bombay.

Das/.

which connects the basis on which the supposed classification is founded with the objects of the Act, for the object of the Act is wide enough to cover both categories of "cases". 1:herefore, it is not a permissible

clssification. Indeed, it is an instance of fanciful classification which has no rational basis at all.

We sec no particular reason why the special procedure should be applied to the appellants' "cases" any more than it should be applied to "cases" not referred to the Special Court up to the 26th Januory, 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 Constitution, 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 evidence 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. Lt is, therefore, clear that in this case the discrimination continuetl after the Constitution came into force and such contmuation of the application of the discriminatory procedure to their cases i1ftcr 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 procedure the appellants are entitled to be tried according to the ordinary procedure after the date of the Constituion.

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, 1s post-constitution and.. therefore, must be scrutinised and examined in the light of their constitutional rights.

So viewed, there can be no doubt or

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 procedure resulting in their conviction and sentence cannot be supported.

Indeed in a sense the Special Judge's jurisdiction 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 the Privy Council in Keshoram Poddar v.

Nundo Lal Mallick(1)°.

The Calclltta Rent Act, 1920, enabled the landlord or tenant of premises in Calcutta to obtain from the Controller of Rents a certification of the standard reµt 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 pericxl of three years which was subsequently extended until the end of March, 1924, and finally tl1e figure 1927 was substituted for 1924 with a proviso "that after 31st March, 1924, tl1is 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 Controller 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.LR. 54 Cal. 508; 54 I.A. 152.

Lachmandas

Kewalram

Ahuia and Another

The State of Bombay.

Das/ .

- . ·~·-..-~=--------. " '

_19sz posted before him on 3rd August, 1924, he held that he Lachmarnld. had no jurisdktiori to determine the_- 1!1atter, for the

Ktwalram Act, ha_d ceased to_ apply to _the_ premises. _. It_ will be Ahuja observed that the. application to the President was

and'Anoth~ made' long before 31st l\Iarch~ 1924, .and that the v. -'j:ieriod for\vhich the rent had to be: determined was

z::::;:.j between June;, 1920; and _l\farch;' 192J.· The: Privy

Council held that _ the 'application _ of the :.Act - Da•J.

Was \vhen the parties began to move tinder it and. that wa.S done before March; 1924; and that the' President accordingly had judsdictiim fo decide it. 'That ; decision apiiears to_ u~ to have rio applicatfon-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 tlie

procedure prescribed by the Act after-the Constitution came _into force operates tothe prejudfre c; if 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 invalidate that part of the proceedings that has already-. been gone -through but the Constitution does not permit the special procedure to stand inthe way of the exercise or enjoyment of pos_t-constitutional rights and must, therefore.-'strike do'wn 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 appellants on trial held bf the Specfal Judge after the 'date of' the Constitution according to the special pro. ; ce_dure prescribed by the impugned Act -and __ the sentences passed on them cannot be supported and these appeals must, therefore, be -allowed -and the convic- ' tions and" sentences' must be 'set aside. The appel- ' fants. are' entitled; after -tlie Constitution! not to be . discriminated against in matters of procedure' and are. -

ntitled to be tried according to law. \Ve, therefore, -

...

direct that they be tried for the offences alleged to have been committed by them according to law and in the meantime 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 : Rajindcr Narain .

GURBACHAN SINGH

ti.

THE STATE OF BOMBAY AND ANOTHER

[PATANJALI SASTRI C.J., MEHER CHAND MAHAJAN, MuKHERJEA, DAs and CHANDRASEKHARA A1YAR JI.]

City of Bombay Police Act, 1902, s. 27 (!)-Constitution of India, Arts. 19 (1) (d), 19 (5)-Provisions relating to externment whether infringe fundamental right to freedom of movement-Validity-Externment 01der fixing place outside State of Bombay for residence-Legality.

Section 27 (I) of the City of Bombay Police Act: 1902, docs not contravene the provisions of Art. 19 of the Constitution inasmuch as it was enacted in the interest of the general public and, having regard to the class of cases to which this sub-section .applies and the menace which an extemment order passed under it is intended to avert, the restrictions that it imposes on the fundamental right of free movement of a citizen which is guaranteed by Art. 19 (!) (d) of the Constitution arc reasonable and come within the purview of Art. 19 (5).

The determination of the question whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enumerated in Art. 19 (1) ( d) of the Constitution are reasonable or not within the meaning of clause (5) of the article :depends as much on the procedural part of the law as upon its

substantial part, and the Court has got to look in each case to the circumstances under which and the manner in which the J'Cstrictions have been imposed.

There are two kinds of externment orders contemplated by '&Uh-section (I) of s. 27 of the City of Bombay Police Act, 1902; one, where the externmant is directed from Greater :Bombay, and the other where the extcrncc is to remove him.self

M11y 7.

LACHMANDAS KEW ALRAM AHUJA

AND ANOTHER

THE STATE OF BOMBAY

PATANJALI SAsTRI C.J.

MEHR CHAND MAHAJAN

MuKHERJEA

DAs

CHANDRASEKHARA AIYAR, JJ.

Bombay Public Safety Measures Act, 1947

s. 12

Section 12

Bombay Public Safety Measures Act, 1947

Special Judge appointed under the Act

Art. 14

Art. 13

13th January, 1950

Vere illegal as the Bombay Public Safety Measures Act

Art. 13

Vere illegal as the Bombay Public Safety Measures Act

Vere illegal as the Bombay Public Safety Measures Act

Arts. 13 and 14

Art. 14

PATANJALI SASTRI

s. 12

Anwar Ali Sarkar

Art. 14

Art. 132

Constitution of India

19th May, 1950

High Court of Judicature of Bombay

Dixit

Shah

13th March, 1950

N. C. Chatterjee

Ram Lal Anand

Hardyal Hardy

S. L. Chibber

Lachmandas Kewalram Ahuja

Lachmandas Kewalram Ahuja and Another v.

The State of Bombay.

State of Bombay

Patanjali Sastri

M. C. Setalvad

G. N.

A. A. Peerbhoy

J. B.

Dadachanji

Mehr Chand Mahajan

Mukherjea

Das

Chandrasekhara Aiyar

Das J. Patanjali Sastri

PATANJALI SASTRI

Special Judge, Ahmedabad

Indian Penal Code

Arms Act

Police Act

Bombay Security Measures Act, 1947

August 6, 1949

section 12

January 13, 1950

January 26, 1950

March 13, 1950

article 13

article 14

Keshav Madhav Menon(1

section 5

section 12

section 12

West Bengal

article 14

State of

Bombay

Pataniali Sas1ri

article 14

Keshavan Madhava Menon

26th January, 1950

Anwar Ali Sark_ar

Section 1

section 1

article 13

article 14

section 1

Lachmandu

Kewalram Ahuja

Stat11 of Bombay

Patanjali Sastri C.

Lachmandas Kewalram

Ahuia

section 1(2)

31st March, 1924

s. 20

section 526

article 13

article 14

Article 13

Patanjali Sastri

article 14

s. 13

section 18

section 526

article 14

section 13

section 537

article 14

article 14

Bombay High Court

May 19, 1950

M. S. Patil

May 26, 1949

Ahmedabad

Bank of India Ltd.

Dai /.

Bank of India Ltd., forcibly removed moto~ van No.

Maskati

Ahmedabad Police

July 19, 1949

City Magistrate, Ahmedabad

sections 394, 397, 302, 307

section 34

Indian Penal Code

section 19

Arms Act

Police Act

sections 307

section 34

Indian Penal Code

section 19( e)

Arms Act

section 68(1)

Police Act

Ahrnedabad City

District Magistrate, Ahmedabad

Government of Bombay

section 10

Bombay Public Security Measures Act, 1947

Ahmedabad District

section 11

the Bombay Public Security Measures Act, 1947

the Bombay Public Security Measures Act, 1947

District and Sessions Judge, Ahmedabad

section 12

December 31, 1949

Penal Code

section 19

Arms Act

section 68

Police Act

January 19, 1950

January 25, 1950

January 26,

1950

The Constitution came into operation on January 26,

1950.

February 9, 1950

section 342

Code of Criminal Procedure

February 10, 1950

February 13, 1950

Kewalram Ahuia

Kewal ram Ahuia

section 302

Indian Penal Code

section 307

Indian Penal Code

Indian Penal Code

Arms Act and Bombay District Police Act

articles 132

Bhagwati

The High Court (Bhagwati and Dixit JJ.),

article 132

article 134

article 132

article 132

section 12

Special Judge appointed under that Act

article 14

article 13

March 23, 1947

The Act came into force on March 23, 1947.

Bombay

section 2

Bombay Act I of 1950

section 2

sections 3

section 6

sections 7 and 8

Section 9

Section 9

section 9B

Sections 10 to 20

section 10

section 3

section 9

Saurashtra State Public Safety Measures Ordinance, 1948

Section 11

the Saurashtra State Public Safety Measures Ordinance, 1948

the Saurashtra State Public Safety Measures Ordinance, 1948

section 4

section 10

Section 12

section 5

section 11

Indian Penal Code

Section 13

section 14

section 15

Notwithstanding anything contained in the Indian Penal Code

Indian Penal Code

Indian Penal Code

Section 16

section 17

Section 18

Kewalram Ahuia

sections 423, 426 and 428

section 18

section 491

section 19

sections 10 to 20

Section 20

section 13

section 257

Code of Criminal Procedure

article 14

section 5

section 11

section 12

section 12

Lachmandas Kewalram Ahuia

People's Publishing House, Ltd., of Bombay

section 2

December 9, 1949

section 15

section 18

Constitution of India

March 3, 1950

section 2

sections 15 and 18

article 19

article 13

March 7, 1950

article 228

sections 15 and 18

article 19

section 18

section 6

General Clauses Act

article 132

article 13

Mahajan

General Clauses Act

Code of Criminal Procedure

Bombay Public Safety Measures Act, 1947

sections 10 to 20

The Bombay Public Safety Measures Act, 1947

The Bombay Public Safety Measures Act, 1947

Indian Penal Code

Arms Act and the Bombay District Police Act

Maxwell

Parliament

State of

Bomlxzy

Keslzava11 Madhava Menon

article 14

Article 14

article 14

section 11

section 12

section 5

section 11

26th Januory, 1950

Code of Criminal Procedure

article 14

article 13

Saurashtra

Judge of a Special Court constituted under the impugned Act

Calclltta Rent Act, 1920

Calcutta

Calcutta Improvement Tribunal

1st June, 1920

23rd October, 1922

25th November, 1922

Naunit Lal

P. A. Mehta

Rajindcr Narain

Agent for the intervener : Rajindcr Narain .

GURBACHAN SINGH

STATE OF BOMBAY

MEHER CHAND MAHAJAN

DAs

CHANDRASEKHARA A1YAR

City of Bombay Police Act, 1902

s. 27

Constitution of India

Arts. 19

Section 27

Police Act

Art. 19

Art. 19

Art. 19

Art. 19

s. 27

City of Bombay Police Act, 1902


...

S.C.R.

SUPREME COURT REPORTS 737

direct that they be tried for the offences alleged to have been committed by them according to law and in the meantime 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 : Rajindcr Narain .

GURBACHAN SINGH

ti.

THE STATE OF BOMBAY AND ANOTHER

[PATANJALI SASTRI C.J., MEHER CHAND MAHAJAN, MuKHERJEA, DAs and CHANDRASEKHARA A1YAR JI.]

City of Bombay Police Act, 1902, s. 27 (!)-Constitution of India, Arts. 19 (1) (d), 19 (5)-Provisions relating to externment whether infringe fundamental right to freedom of movement-Validity-Externment 01der fixing place outside State of Bombay for residence-Legality.

Section 27 (I) of the City of Bombay Police Act: 1902, docs not contravene the provisions of Art. 19 of the Constitution inasmuch as it was enacted in the interest of the general public and, having regard to the class of cases to which this sub-section .applies and the menace which an extemment order passed under it is intended to avert, the restrictions that it imposes on the fundamental right of free movement of a citizen which is guaranteed by Art. 19 (!) (d) of the Constitution arc reasonable and come within the purview of Art. 19 (5).

The determination of the question whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enumerated in Art. 19 (1) ( d) of the Constitution are reasonable or not within the meaning of clause (5) of the article :depends as much on the procedural part of the law as upon its

substantial part, and the Court has got to look in each case to the circumstances under which and the manner in which the J'Cstrictions have been imposed.

There are two kinds of externment orders contemplated by '&Uh-section (I) of s. 27 of the City of Bombay Police Act, 1902; one, where the externmant is directed from Greater :Bombay, and the other where the extcrncc is to remove him.self

M11y 7.

1952 from• the State of Bombay.

In the first class of cases, the ex- -- . terntnent order has to specify the place , vhere the externee is to- GurbachRR Singh re111ove himself and it muSt also indicate the route by which he v. has to reach that place.

On the other hand, where the extern- The State of inent is fron1 the State of Bombay, the externee can remain any- Bombay where he likes outside the State and no place of residence can or •nd Another need be mentioned.

\Vhere an externment order made under s. 27(1) of the City of Bo1nbay Police Act direc-::Cd a person \Vho resided in the City of Bo1nbay to remove himself £1 Dm Greater Bombay and to go to his native place at Amritsar, and on his representation that he did not like to go to Amritsar and might be allowed to stay at Kalyan, v,.rhich was outside Greater Bombay, he was per1nitted to do so: Held, that in view of the subsequent request of the externee which was acceded to by the Commis~ sioner of Police, the externment order coul<l be construed as an order of externment fro1n Greater Bon1bay to Kalyan and it \vas. therefore a valid order of extern1nent.

ORIGINAL JuR1so1cnoN : Petition No. 76 of 1952.

Application un<ler Art. 32 of the Constitution of Indb for a writ in the nature of mandamus.

H. f. U mrigar for the petitioner.

G. N. Joshi for the respondent. 1952.

May 7.

The Judgment of the Court was delivered by

MuKHERJEA J.-This is an application under article 32 of the Constitution, presented by one Gurubachan Singh, praying for a writ, in the nature of mandamt<s

restraining the respondents as well as their subordinates an; l successors from enforcing an externment order served on the pd1tioner under section 27 (1) of the City of Bombay Police Act (1902).

The petitioner is an Indian citizen and is said to be: residing with his father at a place called "Gogri Niwas'', Vincent Road, Dadar, his father having a business in electrical gocxls in the city of Bombay.

On the 23rd July, 1951, the petitioner was serve<l with .a1~ order purporting to have been made by the Corrim1ss1onr of Police, Bombay, under section 27 (1) of the City of Bombay Police Act, directing him to remove himself from Greater Bombay and go to his native place at

,,._.

Amritsar in East Punjab. It was mentioned in the order that the petitioner was to comply with its directions within two days from the date it was made, and that he was to proceed to Amritsar by rail. On July 25, 1951, the petitioner made an application to the Commissioner of Police and prayed for an extention of the time within which he was to remove himself from Greater Bombay, and on this application the Commis- ,' sioner of Police gave him time .till the 30th of July next.

On 30th July, 1951, the petitioner himself wrote a letter to the Commissioner of Police stating that he did not desire to go to Amritsar and prayed that he might be allowed to stay at Kalyan which is outside Greater Bombay but withm the State of Bombay and that he might be given a Railway ticket from Dadar to that place.

It appears that acting on this letter the police took the petitioner to Kalyan on the evening of 30th July, 1951, and left him there.

After that, the petitioner commenced proceedings in the Bombay High Court first in its original s'1de under the Letters Patent and then in the Appellate Criminal Bench of the Court under articles 226 and 228 of the Constitution, complaining of the externment order mentioned above and praying for a writ of certiorari to have it quashed.

Botfl these applications were dismissed and the petitioner has now come up to this court under article 32 of the Constitution on the allegation that his fundamental rights under clauses (d) and (e) of article 19 (1) of the Constitution have been infringed by the externment order.

Mr. Umrigar appearing in support of the pct1t1on

:;, i has argued before us, in the first place that the order of externment is altogether void as it is not in confonuity with the provisions of section 27 ( 1) of the City of Bombay Police Act.

His second contention is

f . that the provisions of section 27 (1) of the City of Bombav Police Act being in conflict with the funclamentai' rights enunciated in clauses ( <l) and ( e) of

.,_ J article 19 (I) of the Constitution are void under article 13 (I) of the Constitution.

The last contention

Gurbachan Singh v.

The State of Bombay and A. n other

Gurbachan Sin;:h

The State of

Bombay and Another

Muftherjea /.

urged, though somewhat faintly, is hat the provmon of section 27 (1) mentioned above is discriminatory in its character and offends against art; icle 14 of the Constitution.

.---,

As regards the first point, it is not disputed on behalf of the respondents that the order of externment, as Was passed by the Commissioner of Police on 23-7-1951, is not in strict conformity with the provision of section 27 (1) of the City of Bombay Police Act. \.

The order directed the petitioner to remove himself out of Greater Bombay but at the same time mentioned Amritsar as the place where he was to go. Section 27 (1) of the City of Bombay Police Act provides as follows :-

"Whenever it shall appear to the Commissioner of Police,

(a) that the movements or acts of any person in the Greater Bombay are causing or calculated to cause alarm, <!anger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence, or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of the Commissioner witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safetv of their person or property;

(b) ... The Commissioner of Police may, by an order jn writing duly served on him ... direct such person ... to remove himself outside the State or to such place within the State and by such route and within such time as the Comn:rissioner of Police shall prescribe and not to enter the State or as the case may be the Greater Bombay."

It seems clear from this provision that there are two kinds of externment orders contemplated by the subsection; one, where externment is directed from the Greater Bombay and the other where the externee is to remove himself from the State of Bombay. In the

\ _,

I ,,,

first class of cases the order has got to specify the place where the externee is to remove himself to and it must also indicate the route by which he has to

re:ich that place. On the other hand, when the externment is from the State of Bombay, the externee can remain anywhere he likes outside the State and no place of residence can or need be mentioned. ·

In the case before us the externment order started by directing the petitioner to remove himself only out of Greater Bombay.

It was 'incumbent in such a case for the authorities to specify the place where the externce was to stay.

Actually a place, namely Amritsar, was specified in the order, but as it is not within the State of Bombay, it was manifestly beyond the jurisdiction of the Commissioner of Police to name such place at all. It is argued on behalf of the petitioner, not without some force, that the omission to specify a place within the State where the petitioner was to stay vitiates the order. On the other hand the order read as a whole 'might indicate that the intention of the Commissioner of Police was to extern the petitioner outside the State of Bombay and this is apparent from the fact that he was directed to proceed to Amritsar which ii situated in another State. It is no doubt true that the Commissioner of Police, Bombay, had no authority to fix any place outside the State as the place of residence of the externee and that direction was ineffective; but that direction certainly has a bearing on the question of the construction of

the order, for it indicates that the real intention of the order was to direct the externee to remove himself not only from Greater Bombay but from the State of Bombay itself.

If that was the intention, no place of residence need have - been indicated at all.

We need not, however, labour this aspect of the matter any further, for we are of the opinion that whatever irregularity there might have been in the original order, the subsequent conduct of the petitioner which had the sanction and approval of the Commissioner of Police removed the defect, if any.

As has been stated already, on the 30th July, 1951,

Gurhachan Sintf,

The State of Bombay •nd Another.

Gurbachan Singh

T Ii• Stille of Bom/fay anti Another.

Mukheri•• f.

the petitioner himself by a letter written to the Commissioner of Police sought his permission to stay at Kalyan which is within the State of Bombay. Hio

request was acceded to and the Police actually took him to Kalyan on the evening of the 30th. We think that, in these circumstances, the order made on the 23rd July, 1951, might be construed to be an order of ' externment from Greater Bombay and though there "-. was a mistake regarding the place where the externee was to remove himself to, the mistake was rectified by the petitioner choosing Kalyan as the place of residence and that choice being accepted and given effect to by the Police Department.

We do not think that in these circumstances there is really any substance in the first point raised by Mr. Umrigar. -""'

The second point urged by the learned counsel raises the question as to whether section 27 (1) of the City of Bombay Police Act has imposed restrictions upon the fundamental right, of a citizen which is guaranteed under article 19 (1) (d) of the Constitution and being in conflict with this fundamental right is void and inoperative under article 13 ( 1) of the Constitution.

There can be no doubt that the provisions of section 27 (1) of the Bombay Act was made in the interest of the general public and to protect them aga!nst dangerous and bad characters whose presence in a particular locality may jeopardize the peace and safety of the citizens.

The question, therefore, is whether the restrictions that this law imposes upon the rights of free movement of a citizen, come within the purview of clause (5) of article 19 of the Constitution; or .., in other words whether the restrictions are reasonable?

It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated lh . article 19 ( 1) ( d) of the Conslitution are reasonable or not within the meaning of clause (5) of the article would depend as much upon the procedural part of the law as upon its substantive part; and the court has got to look in each case to the circumstances under which and the manner in

.• -·

. ,

which the restrictions have been imposed. The maximum duration of the externment order made under 1952

section 27 (I) of the Bombay Act is a period of two 'f:!U!S ut1tpt1qJn!) years and the Commissioner of Police can always permit the externee to enter the prohi8ited area even before the expiration of that period.

Having regard . ,\ /o ; lttJtS "'If .L

iftJqWOfl

to the class of cases to which this sub-section applies and Another. and the menace which an externment order passed •/ t1; if~1f>tnn under it is intended to avert, it is difficult to say that this provision is unreasonable.

The Commissioner of Police can in a proper case cancel the externment order any moment he likes, if, in his opinion, the return of the externee to the area from which he was removed ceases to be attended with any danger to the community.

As regards the procedure to be followed in such cases, section 27 ( 4) of the Act lays down that before an order of externment is passed against any person, the Commissioner of Pofice or any officer authorized by him shall inform such person, in writing, of the general nature of the material allegations against him and give him a reasonable opportunity of explaining these allegations.

He is permitted to appear through an Advocate, or an Attorney and can file a written statement and examine witnesses for the purpose of clearing his character.

The only point. which Mr. Umrigar attempts to make in regard to the reasonableness of this procedure is that the suspected person is not allowed to cross-examine the witnesses who deposed against him and on whose evidence the proceedings were started.

In our opinion this by itself would not make the procedure unreasonable having regard to the avowed intention of the legislature in making the enactment. The law is certainly an extraordinary one and has been made only to meet

those exceptional' cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menance to the safety of the public residing therein.

Tnis object would be wholly defeated if a right to confront or cross-examme these witnesses was given to the

Gurbttchan Sinzh

The State of

Bomboy and Another.

Muk_herjea ].

May 26.

suspect. The power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartia!'ity while discharging his duties under the Act.

This contention of Mr. Umrigar must, therefore, fail.

The last point made by Mr. Umrigar d0es not seem to us to be tenable.

It is true that a procedure '-. • different from what is laid down under the ordinary law has been provided _for a particular class of persons against whom proceedings could be taken under sec- '-... tion 27(1) of the City of Bombay Police Act, but the discrimination if any is based upon a reasonable classi- . fication which is within the competency of the legislature to make. Having regard to the objective which . • the legislation has in view and the policy underlyiag it, a departure from the ordinary procedure can certainly' 'be justified as the best means of giving effect to the object of the legislature.

In our opinion, therefore, there is no substance in the petition and it shall stand dismissed.

Petition dismissed. _4

Agent for the petitioner: P. K. Chatterjee.

Agent for the respondents : P. A. Mehta.

D. K. NABHIRAJIAH v.

THE STATE OF MYSORE AND OTHERS.

[PATANJALI SASTRI C.J., MEHER CHAND MAH, AJAN, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.J Mysore House Rent and Accommodation Control Order, 1948- Va/idity-F,, ndamental right not to be deprived of property-Constitutiou of India, Arts. 31 (2), 19 (!) (!)-Order of allotment efore

Constit"tion came into for'l'e-Possession taken thereafter-Validity of proceedings-Writ for quashing orders-Maintainability.

A house belonging to the petitioner in the Bangalore City -' 0 -< l'cll vacant on the !st September, 1949, and on the 13th September, 1949, an order was passed by the Rent Co"troller

Naunit Lal

P. A. Mehta

Rajindcr Narain

GURBACHAN SINGH

THE STATE OF BOMBAY AND ANOTHER

PATANJALI SASTRI C.J.

MEHER CHAND MAHAJAN

MuKHERJEA

DAs

City of Bombay Police Act, 1902

s. 27

Constitution of India

Arts. 19

Bombay

Section 27

Police Act

Art. 19

Art. 19

Art. 19

Art. 19

s. 27

City of Bombay Police Act, 1902

GurbachRR Singh

s. 27(1)

Police Act

Amritsar

Kalyan

Art. 32

G. N. Joshi

article 32

Gurubachan Singh

section 27

Police Act

23rd July, 1951

section 27

Police Act

East Punjab

July 25, 1951

30th of July next

30th July, 1951

State of Bombay

Dadar

Bombay High Court

articles 226 and 228

article 32

article 19

Umrigar

section 27

Police Act

section 27

Police Act

article 19

article 13

State of

Bombay

section 27

section 27

Police Act

Section 27

Police Act

XVI or XVII of the Indian Penal Code

Gurhachan Sintf

State of Bombay

Gurbachan Singh

section 27

Police Act

article 19

article 13

section 27

article 19

article 19

section 27

section 27

Gurbttchan Sinzh

State of

Bomboy

Police Act

P. K. Chatterjee

MEHER CHAND MAH

AJAN

MUKHERJEA

DAS

CHANDRASEKHARA AIYAR

Arts. 31