Lachmandas Kewalram Ahujaand Another vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: 20 and 21 of 1950

Decision Date: 20 May 1952

Coram: M. Patanjali Sastri, Mehr Chand Mahajan, B.K. Mukherjea, N. Chandrasekhara Aiyar

In this matter, the Court recorded that the petition was filed by Lachmandas Kewalram Ahuja and another individual against the State of Bombay, and that the judgment was delivered on the twentieth day of May, 1952. The authority for the decision was the Supreme Court of India, and the opinion was authored by Justice M. Patanjali Sastri, who was assisted by Justices Mehr Chand Mahajan, B. K. Mukherjea, and N. Chandrasekhara Aiyar. The parties were identified as the petitioner, Lachmandas Kewalram Ahuja and the second accused, and the respondent, the State of Bombay. The date of the judgment and the composition of the bench were noted again, emphasizing that Justice M. Patanjali Sastri presided as Chief Justice, with Justices Mahajan, Mukherjea, and Aiyar forming the remainder of the panel.

The citation for this decision was recorded as 1952 AIR 235 and 1952 SCR 710, and a series of subsequent citations were listed to indicate the cases in which this judgment was later referenced. Those citations included references such as D 1953 SC 156, R 1953 SC 287, R 1953 SC 394, RF 1953 SC 404, RF 1954 SC 424, F 1955 SC 13, R 1955 SC 191, F 1957 SC 503, R 1957 SC 877, D 1957 SC 927, D 1958 SC 86, R 1958 SC 538, RF 1958 SC 578, F 1959 SC 149, E 1959 SC 609, E 1960 SC 457, R 1961 SC 1245, RF 1962 SC 1621, R 1962 SC 1737, R 1974 SC 2009, R 1979 SC 478, and R 1980 SC 1789. The statutory provisions under consideration were Articles 13 and 14 of the Constitution of India, together with Section 12 of the Bombay Public Safety Measures Act, 1947, which empowered the Government to refer particular cases for trial before a Special Judge appointed under that Act. The legal issues noted involved the validity of that provision, the allegation of discrimination, the fact that the proceedings had been initiated before the Constitution came into force on the twenty-sixth of January, 1950, the question of whether the special procedure was discriminatory, the continuation of the trial under that special procedure, the overall validity of the trial, and the applicability of the Constitution to cases that were already pending.

The headnote summarized the hold of the majority, as expressed by Justices Mahajan, Mukherjea, and Aiyar, with Chief Justice Patanjali Sastri dissenting. The majority held that Section 12 of the Bombay Public Safety Measures Act, 1947, insofar as it authorized the Government to direct specific “cases” to be tried by a Special Judge, did not rest on any classification and therefore violated Article 14 of the Constitution and was void under Article 13, following the principles laid down in the decisions of State of West Bengal v. Anwar Ali Sarkar ([1952] SCR 284) and Kathi Raning Rawat v. State of Saurashtra ([1952] SCR 435). The appellants, who were accused of murder and other serious offences, had been ordered by the Bombay Government on the sixth of August, 1949, to be tried under the Bombay Public Safety Measures Act before a Special Judge appointed under that Act. Their charges were framed on the thirteenth of January, 1950, and they were convicted in March 1950. On appeal before the High Court, it was contended that the trial and conviction were illegal because the Act was void under Articles 13 and 14 of the Constitution, which became effective on the twenty-sixth of January, 1950. The High Court, however, held that because the proceedings had commenced before the Constitution, the provisions of Articles 13 and 14 did not apply and the conviction was not illegal. The Supreme Court, by a majority, held that notwithstanding the commencement of the proceedings prior to the Constitution, the discriminatory effect of the special procedure continued after the Constitution came into force, thereby violating the right to equality, and consequently the appellants were entitled to be tried under the ordinary procedural regime.

In the Court’s analysis it was observed that any substantive rights or liabilities that were acquired or accrued before the Constitution became operative continued to be enforceable after that date. However, the Court held that this enforceability did not extend to the procedural mechanisms that were in force at the time the right or liability arose, because procedural rules do not give rise to a vested right. Consequently, even though the reference of the appellants’ cases to a Special Judge occurred before the Constitution came into effect, that reference had no reasonable connection with the purpose of the Bombay Public Safety Measures Act. The Court found that the discriminatory character of the special procedure persisted after the Constitution’s commencement, and that the continued application of that procedure to the appellants after the Constitution’s commencement breached the guarantee of equal protection of the laws under Article 14. As a result, the appellants were entitled to be tried under the ordinary criminal procedure that applied after the Constitution took effect.

Chief Justice Patanjali Sastri, dissenting from the majority, first acknowledged that section 12 of the Bombay Act was discriminatory and therefore void to the extent that it authorised the State Government to refer individual cases to a Special Judge. Nonetheless, he reasoned that the trial of the appellants, which had lawfully begun before the Special Judge was empowered to hear the case, could not be undone simply because the Constitution later came into force. He emphasized that the fundamental-rights provisions of the Constitution did not operate retrospectively and therefore did not disturb a criminal prosecution that had already commenced. Accordingly, the jurisdiction and competence of the Special Judges that had been validly created and exercised prior to the Constitution’s commencement remained intact despite the later finding that the special procedure was discriminatory. He further held that Article 14 did not affect pending trials even when procedural matters were involved, and that the appellants, whose proceedings had started before referral to the Special Judge, were not in the same position as other accused persons. Hence, there was no discrimination in allowing them to be tried under the special procedure that applied at the time their cases were initiated.

The judgment was issued by the Criminal Appellate Jurisdiction of the Supreme Court concerning Cases Nos 20 and 21 of 1950. The appeals were filed under Article 132(1) of the Constitution of India against the judgment and order dated 19 May 1950 of the High Court of Judicature at Bombay, where Justices Dixit and Shah had confirmed the earlier decision in Confirmation Case No 4 of 1950. The appeals also arose from Criminal Appeals Nos 190 and 199 of 1950, which in turn related to the judgment dated 13 March 1950 of the Special Judge at Ahmedabad in Special Cases Nos 2 and 3 of 1949. Counsel for the appellants consisted of senior lawyers accompanied by junior counsel, while the respondent was represented by the Attorney-General for India and his counsel.

On May 20 1952, an intervenor’s submission was entered in the record, and the judgment of the bench consisting of Mehr Chand Mahajan, Mukherjea, Das and Chandrasekhara Aiyar, JJ, was delivered by Justice Das, while Chief Justice Patanjali Sastri pronounced a separate dissenting opinion. Chief Justice Patanjali Sastri began his dissent by expressing regret that he could not agree with the reasoning or the conclusion reached by his learned brother Justice Das, whose judgment he had carefully read. He then outlined the factual background, noting that the appellants had been convicted and sentenced—some to death and others to varying terms of imprisonment—by the Special Judge at Ahmedabad on charges of murder and additional offences under the Indian Penal Code, the Arms Act and the Bombay Police Act. The Special Judge had been appointed through a notification issued under the Bombay Security Measures Act, 1947, hereinafter referred to as the impugned Act, and, on 6 August 1949, the State Government exercised the authority given by section 12 of that Act to direct the Special Judge to try the case involving the appellants, who were implicated in the matter popularly known as the Central Bank Robbery Case. Charges were framed on 13 January 1950 without any preliminary enquiry or committal by a Magistrate, a procedure that the impugned Act expressly dispensed with, and seventeen prosecution witnesses were examined before 26 January 1950, the date on which the Constitution of India came into force. The trial proceeded thereafter, and after a total of sixty witnesses had been examined, the Special Judge rendered his judgment of conviction on 13 March 1950. The appellants subsequently filed separate appeals before the High Court, which upheld each conviction and sentence. An objection was raised that the trial was unconstitutional because the impugned Act was void under article 13(1) read with article 14 of the Constitution; this objection was rejected on the ground that those constitutional provisions did not have retrospective effect and therefore did not disturb proceedings that had already commenced before the Special Judge. The learned Judges relied on a prior decision of a Special Bench of their own Court in In re Keshav Madbar Menon, a decision later affirmed by this Court in the 1951 law reports. Counsel for the appellants argued that the High Court’s reliance on that precedent was distinguishable and that the present case should be governed by the Supreme Court’s ruling in The State of West Bengal v. Anwar Ali Sarkar, which held that section 5 of the Bengal Act—identical in language to section 12 of the impugned Act—was discriminatory and void because it empowered the State Government to direct individual cases to be tried by a Special Court under a special procedure. Accordingly, the appellants contended that the Special Judge lacked jurisdiction to try them under the special procedure prescribed by the impugned Act, and they urged that, in view of the Anwar Ali Sarkar decision, section 12 of the impugned Act must be considered discriminatory and void insofar as it confers such power.

In this case, the Court observed that although the impugned Act empowered the State Government to refer individual cases to a Special Judge for trial, the mere fact that the Constitution later came into force did not invalidate a trial that had already begun before that date before a duly authorized Special Judge. The Court noted that the West Bengal decision was premised on the argument that article 12 of the Constitution applied from the outset of the proceedings, even though the notification directing the trial of certain accused persons had been issued a day before the Constitution’s commencement. The present circumstances were different. Here, the appellants’ case was sent to the Special Judge by a notification dated 6 August 1949. The Special Judge took cognizance, framed the charges and advanced the trial to a considerable stage before the Constitution became effective on 26 January 1950. Consequently, up to that point there could be no violation of the appellants’ fundamental right to equality under article 14, as it had been held in Keshavan Madhava Menon’s case that the constitutional provisions relating to fundamental rights do not operate retrospectively and do not affect criminal proceedings that commenced before the Constitution’s commencement. After 26 January 1950 the appellants, like any other person, were entitled to the equal protection of the law; however, that right required the State, including both the executive and the legislature, to apply the same substantive and procedural law to all persons in comparable situations without discrimination. It was argued that, following the Constitution’s commencement, persons committing the same offences as the appellants would, according to the West Bengal decision, not be liable to be tried by a Special Judge under the special procedure, and therefore the continuation of the appellants’ trial before the Special Judge after that date would be discriminatory and illegal. The Court could not accept this argument. Firstly, the principle of equal protection demands that persons in the same situation be subject to the same law. The appellants’ trial by the Special Judge had been lawfully instituted and was pending at the moment the Constitution took effect; therefore it could not be said that they were being treated differently from others merely because the special procedure continued after 26 January 1950.

In this case, the Court examined whether the appellants, whose trial by a Special Judge had begun before the Constitution came into force, could claim that they were in the same situation as persons who committed the identical offences after the Constitution’s commencement. The Court observed that the circumstances differed between the two groups, and therefore a complaint of discriminatory treatment merely because the trial continued under the special procedure could not be sustained, even if the ordinary procedure under the Criminal Procedure Code became applicable to the appellants after 26 January 1950. The Court further noted that this assumption was questionable. Section 1, sub-section (2) of the Criminal Procedure Code states that nothing in the Code shall affect any special jurisdiction, power, or special form of procedure prescribed by any other law then in force. The jurisdiction conferred on the Special Judge by the impugned Act remained valid and fully operative up to 26 January 1950, and consequently the application of the ordinary Code to the appellants was excluded. Accordingly, the Court concluded that on 26 January 1950 the appellants could not claim a right to be tried under the ordinary procedure in the same manner as those who committed the offences after that date or those who, having committed them before that date, were not directed to be tried by a Special Judge.

The Court also addressed the argument that section 1(2) of the Code presupposes a valid law granting a special jurisdiction, and that any portion of the special procedure applicable after the Constitution’s commencement would be void under article 13(1) read with article 14, thus preventing the appellants from being tried under the ordinary procedure. The Court found this argument to be circular. It assumed that the special procedure was discriminatory and void to the extent it could be applied after 26 January 1950, yet such an assumption would be valid only if the appellants were in fact eligible to be tried under the normal procedure after that date. The Court explained that the normal procedure would become applicable only if the special procedure were excluded as discriminatory and void, which creates a logical loop. Moreover, the Court expressed difficulty in identifying any principle that would cause the jurisdiction of the Special Judge, which had been properly created and exercised over the appellants’ case, to cease on or after 26 January 1950. The appellants contended that the special procedure became discriminatory and void after that date, rendering it inapplicable to the remainder of their trial, but the Court indicated that this contention required further analysis.

In this case, the Court considered whether the advent of the Constitution on 26 January 1950 could remove the authority of the Special Judge who had already taken cognizance of the appellants’ trial. The Court referred to the decision in Keshoram Poddar v. Nundo Lal Mullick (1) (1927) 54 I.A.152, where the Judicial Committee of the Privy Council ruled that the termination of a Rent Control Tribunal’s jurisdiction after 31 March 1924 did not deprive it of power to adjudicate a case that had been filed before that date and concerned a period prior to the termination. The Privy Council observed that the application of the Act began when the parties commenced proceedings, and the subsequent steps were merely the continuation of that application. The Court found the situation here to be closely analogous. The Special Judge had been competent to try the appellants when the trial started before 26 January 1950, and the impugned Act had been validly applied at that stage. The later proceedings were simply the further working out of the Act’s application. Consequently, the Court could not discern any reason why the Special Judge’s competence should cease after the Constitution came into force, just as the Rent Control Tribunal was permitted to deal with a pending matter after its jurisdiction was restricted.

The Court further observed that if the Special Judge’s jurisdiction were to be affected by the Constitution, it would be impracticable for the Judge to replace the pending trials with a different procedure after 26 January 1950 in order to satisfy the equal-protection claims of under-trial prisoners. Section 20 of the impugned Act expressly provided 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.” Because the trials up to that point had proceeded without a jury or assessors, it would have been impossible to switch them after the constitutional date to a jury-based or assessor-assisted process required under the ordinary Code. Moreover, the Act stipulated that no case could be transferred from any Special Judge, a rule stemming from the exclusive jurisdiction and special mode of proceeding prescribed for such judges. If a right of transfer under section 526 of the Code were to be recognized as arising after 26 January 1950 for persons being tried before a Special Judge, the entire scheme of Special Courts could collapse. Therefore, the Court concluded that the only viable alternatives were either to hold that Article 13(1) read with Article 14 did not affect pending trials even with respect to procedural matters, or to overturn that position and apply the constitutional provisions retrospectively. The Court was inclined to adopt the former view, consistent with the earlier decision in Keshoram Poddar.

It was observed that the earlier decision in Keshavan Madhava Menon’s case had held that Article 13(1) did not affect trials with respect to the substantive rights and liabilities that had arisen before the Constitution came into force, and that the Constitution was not to be given a retrospective operation over such statutes. The present opinion follows that principle. The principle was expressed as follows: “Article 13(1) cannot be read as erasing the whole operation of the inconsistent laws, or removing them completely from the statute-book, for to do so would give those laws a retrospective effect which, as has been said, they do not possess. Such laws continue to apply to all past transactions and for the enforcement of all rights and liabilities that accrued before the date of the Constitution.” (Emphasis added.) While the final words of that statement suitably cover the present matter, it is acknowledged that the earlier case was not decided on facts identical to those now before the Court. It is also recognized that overly fine distinctions sometimes create unforeseen difficulties. In the earlier analysis it had been assumed that any departures from the ordinary procedure that remained applicable to the portion of the appellants’ trial after 26 January 1950 were so materially prejudicial as to constitute a denial of equal protection of the laws under Article 14. However, that assumption is no longer fully accepted. One deviation concerns the recording of evidence: the Special Judge is authorized only to note a memorandum of the substance of each witness’s testimony, whereas the Criminal Procedure Code requires the full recording of evidence. Another deviation relates to the summoning of defence witnesses; the Special Judge may refuse to summon a witness if, after examining the accused, he is satisfied that the witness’s evidence will not be material, as provided in section 13, while section 257(1) of the Code permits a magistrate to refuse issuance of a process only when the application is made for vexation, delay, or to defeat the ends of justice. A further deviation is found in the impugned Act, which states in section 18(3) that no court has jurisdiction to transfer any case from a Special Judge, although section 526 of the Code allows transfers on specified grounds. The more substantial departures from the Code—such as dispensing with a preliminary enquiry, foregoing committal, and eliminating jury and assessors—had already been validly applied to the appellants’ trial before the Constitution became operative, and therefore cannot be said to vitiate the trial. Consequently, the Court is not persuaded that the procedural variations in evidence recording and witness summoning rise to the level of denying equal protection under Article 14.

The Court observed that the differences in how evidence was recorded and how witnesses were summoned could not be treated as so serious as to constitute a denial of the equal protection of the laws guaranteed by article 14. Even assuming that the appellants had been tried after 26 January 1950 under the ordinary procedure prescribed by the Code, the failure to set down the evidence in its entirety and the decision not to call a witness in the situation described in section 13 would, at most, amount to procedural irregularities. Such irregularities, the Court noted, are capable of being remedied under section 537 of the Criminal Procedure Code. Concerning the issue of transferring the case, the Court reiterated that this matter did not align with the intended scheme of trial before a Special Judge. Unless the entire system of Special Courts were to be declared violative of article 14, the Court referred to its earlier decision in Kathi Raning Rawat v. The State of Saurashtra (1) [1952] S.C.R. 435, which demonstrated that the institution of Special Courts could be valid in appropriate circumstances. Consequently, a prohibition on transfer could not be said to fall within the prohibition of article 14. The Court further stressed that, when applying the broad and sometimes vague language of the equality clause to the concrete facts of a case, a rigid doctrinaire approach must be avoided. After weighing all the circumstances, the Court concluded that it was not compelled to set aside the trial and conviction of the appellants, and therefore dismissed the appeals.

These appeals arose from a judgment of a Division Bench of the Bombay High Court, composed of Justices Dixit and Shah, dated 19 May 1950. That judgment had dismissed the appellants’ challenges to an order dated 13 March 1950 issued by Shri M. S. Patti, who was appointed as Special Judge under the Bombay Public Security Measures Act, 1947. The Special Judge had found the appellants guilty and sentenced one to death and imposed various terms of imprisonment on the other for separate charges. The prosecution case, as briefly outlined, stated that on the morning of 26 May 1949, between 10:30 a.m. and 11:00 a.m., in Ahmedabad, the two appellants together with an accomplice, after shooting and injuring the driver and a peon of the Central Bank of India, forcibly seized motor van No. BY 4388 belonging to the bank. The van was transporting a large sum of money from the bank’s head office at Gandhi Road to its branch at Maskati. After abandoning the van at a distance of three-quarters of a mile, the three gunmen took the bicycles of persons who were riding nearby and continued their flight. During the escape they fired upon and injured several persons. Eventually the police arrested the two appellants, while the accomplice escaped. The driver and the peon who had been injured later died, one on the spot and the other the following day in hospital. Following these events, the Ahmedabad Police conducted an investigation.

On 19 July 1949 the police submitted to the City Magistrate of Ahmedabad two charge-sheets, numbered 183 and 188-A, charging the two appellants and an as-yet unidentified accomplice with a number of offences that arose out of the robbery carried out on 26 May 1949. Charge-sheet 183 listed offences under sections 394, 397, 302 and 307 of the Indian Penal Code, each read with section 84, together with an offence under section 19(e) of the Arms Act and an offence under section 68(1) of the Bombay District Police Act. Charge-sheet 188-A alleged offences punishable under sections 307 and 392 of the Indian Penal Code, also read with section 84, and likewise included violations of section 19(e) of the Arms Act and section 68(1) of the Bombay District Police Act. Both charge-sheets contained a note stating that the District Superintendent of Police, Ahmedabad City, had asked the District Magistrate to refer the matters to the Government of Bombay for the constitution of a Special Court, and that the charge-sheets could be transferred to that Court when it was established. Because of this note the City Magistrate did not conduct any inquiry and simply remanded the appellants. Subsequently, by a notification dated 6 August 1949, the Government of Bombay exercised the authority given to it by section 10 of the Bombay Public Security Measures Act, 1947, and created a Special Court of criminal jurisdiction for the Ahmedabad district. Under section 11 of the same Act the Government appointed Shri M. S. Patil, then District and Sessions Judge of Ahmedabad, as the Special Judge to preside over the Special Court. On the same day another notification, issued under the power conferred by section 12 of the Act, directed the Special Judge to try two particular matters: the “Postal Van dacoity” case, which involved nine accused persons, and the “Central Bank robbery with murder” case, in which the two appellants were the accused under the two charge-sheets. In accordance with these notifications the City Magistrate transferred the two cases to the Special Judge’s Court, where they were recorded as case numbers 2 and 3 of 1949. Later, on 31 December 1949, the Government of Bombay ordered that the trial of the appellants should be conducted by the Special Judge in the Ahmedabad Central Prison. No committal order was issued by any committing magistrate and the Special Judge did not hold any preliminary inquiry. On 13 January 1950 the Special Judge combined the two cases for the purpose of a joint trial and, on that same day, framed five separate charges: four charges under various sections of the Indian Penal Code and one charge under section 19(e) of the Arms Act together with section 68(1) of the Bombay District Police Act. The first prosecution witness was examined on 19 January 1950.

Up to 25 January 1950, the Special Judge examined seventeen witnesses for the prosecution. The Constitution had become operative on 26 January 1930, and after that date the hearing continued, with the testimony of the final prosecution witness being recorded on 9 February 1950. In total, sixty-two witnesses were examined during the trial. The two appellants were then examined under section 342 of the Code of Criminal Procedure on 10 February 1950. A handwriting expert was called as a court witness on 13 February 1950, and the prosecution began its arguments on the following day. The defence presented its arguments until 23 February 1950, after which the Special Judge delivered his judgment on 13 March 1950. The judge found that both appellants had committed eleven distinct offences punishable under various provisions of the Indian Penal Code, the Arms Act and the Bombay District Police Act. Accordingly, each appellant was convicted of all eleven offences, sentenced to death under section 302 in conjunction with section 34 of the Indian Penal Code, sentenced to transportation for life under section 307 in conjunction with section 34 of the Indian Penal Code, and handed various terms of imprisonment under the other cited statutes. The capital sentences were to be confirmed by the High Court. Both appellants appealed to the Bombay High Court, where their appeals, together with a reference for confirmation of the death sentences, were heard by Justices Dixit and Shah. By judgments dated 19 May 1950, the High Court dismissed the appeals and upheld the death sentences. The appellants then applied to the High Court for certificates under article 132(1) and article 134(1)(c) of the Constitution to enable an appeal to this Court. The High Court, comprising Justices Bhagwati and Dixit, granted a certificate only under article 132(1) and declined to issue one under article 134(1)(c). Relying on the certificate under article 132(1), the appellants filed the present appeals. A petition was also filed under article 132(3) seeking leave to raise an additional ground that the trial was vitiated by the misjoinder of charges; this ground had not been raised before the High Court. The Supreme Court declined to allow that new point and dismissed the petition, thereby limiting the present appeals to the challenge of the High Court’s judgment on the basis that a substantial question of law concerning the interpretation of the Constitution had been decided incorrectly. The sole substantial question presented to this Court concerned whether the Bombay Public Safety Measures Act, 1947—or, at the very least, the portion of section 12 that empowers the State government to direct specific “cases” to be tried by a Special Judge appointed under the Act—offends the principle of equal protection of the law guaranteed by article 14 of the Constitution.

The Court held that the provision in question was void under article 13 because it violated the principle established by this Court in the earlier decisions of The State of West Bengal v. Anwar Ali Sarkar (1) and Kathi Raning Rawat v. The State of Saurashtra (2). To understand the ground on which this conclusion was reached, the Court considered it necessary to examine the specific provisions of the Act that was challenged. The Act had originally come into force on 23 March 1947 and was enacted under the title “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 of the Act expressed the desirability of consolidating and amending the law relating to those matters. Section 9(3) originally limited the duration of the Act to three years. Subsequently, the Act was amended by Bombay Act I of 1950. Among other changes, the amendment replaced the words “public safety, maintenance of public order and the preservation of peace and tranquillity in the Province of Bombay” in the long title and preamble with 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”. In addition, the amendment altered the period of operation by substituting the word “six” for the word “three” in section 2(3). These introductory and temporal modifications set the stage for the detailed provisions that followed.

The remaining sections of the Act were organized under several headings. Sections 3(A1) to 5B were placed under the heading “Restrictions of movements etc.” and created offences for any contravention of orders made under those sections, with punishments specified therein. Section 6 dealt with “collective fines” within the same heading. Sections 7 and 8, titled “Control of camps etc. and uniforms”, each made it an offence to contravene any order issued under them; these provisions were cited in the earlier cases (1) [1952] S.C.R. 284 and (2) [1952] S.C.R. 435. Section 9 prescribed whipping as an additional punishment for certain offences under other Acts, supplementing any other penalty that might be imposed. Sections 9A and 9B, headed respectively “Control of Publications etc.” and “Control of Commodities etc.”, similarly created offences for violations of orders made under those sections. The portions of the Act most relevant to the question before the Court were sections 10 to 20, which were grouped under the heading “Special Courts”. The Court noted that these sections required careful examination because they directly concerned the issue of whether the State could direct specific cases to a Special Judge. The remaining sections were categorized under “Miscellaneous” and “Amendments to Acts”. Focusing on the “Special Courts” group, the Court observed that section 10, analogous to section 3 of the West Bengal (Special Courts) Act 1950 and section 9 of the Saurashtra State Public Safety Measures Ordinance 1948, empowered the Government, by means of a notification published in the Official Gazette, to constitute Special Courts with criminal jurisdiction for the areas specified in the notification.

Section 11, which parallels section 4 of the West Bengal Act and section 10 of the Saurashtra Ordinance, empowers the government to appoint any individual who possesses the qualifications specified in the statute as a Special Judge to preside over a Special Court. Section 12 is worded in exactly the same manner as section 5(1) of the West Bengal Act and section 11 of the Saurashtra Ordinance. It provides that a Special Judge shall try such offences, or classes of offences, or such cases, or classes of cases, as the Provincial Government may direct by a general or special order in writing. It is apparent that the offences referred to in this provision are not confined solely to those created by the present Act; they also encompass offences punishable under any other law, for example the Indian Penal Code. Section 13 contains three sub-sections. Sub-section (1) authorises a Special Judge to take cognizance of offences without the accused being committed to his court for trial. Sub-section (2) states that 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, after examining the accused, he is satisfied that the witness’s evidence will not be material, and shall not be bound to adjourn any trial for any purpose unless, in his opinion, such adjournment is necessary in the interest of justice. Sub-section (3) provides that in matters not falling within the scope of sub-sections (1) and (2), the provisions of the Code of Criminal Procedure, to the extent that they are not inconsistent with sections 10 to 20 of this Act, shall apply to the proceedings of a Special Judge; for the purposes of those provisions, the Court of the Special Judge shall be deemed to be a Court of Session. Under section 14 the Special Judge may, at his discretion, direct that the evidence of a person who is unable to attend the court be recorded on commission. Section 15 prescribes enhanced punishments for certain offences, stating that notwithstanding any provision of the Indian Penal Code, a person who commits an attempt to murder may, in place of the punishment provided by the Indian Penal Code, be punished with death, and a person who voluntarily causes hurt by stabbing may, in lieu of the Indian Penal Code punishment, be sentenced either to death or transportation for life. Section 16 authorises the Special Judge to pass any sentence that is authorized by law. Section 17 establishes a special procedural rule for the recovery of fines. Finally, section 18 confers a right of appeal on any person convicted by a Special Judge; the appeal must be filed within fifteen days from the date of sentencing, and the High Court is empowered to call for the records of the proceedings of any case tried by a Special Judge and to exercise any of the appellate powers conferred on a Court of Appeal by sections 423, 426 and 428 of the Code.

The Court explained that when a case is tried before a Special Judge, the appellate powers conferred by sections 423, 426 and 428 of the Code of Criminal Procedure are not available. Sub-section (3) of section 18 reads: “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 Special Judge or, save as herein otherwise provided, have jurisdiction of any kind in respect of proceedings of any Special Judge.” Consequently, an accused who is tried by a Special Judge cannot apply for transfer of the case nor for revision of the judgment. Section 19 makes ordinary law applicable only to the extent that it does not conflict with the provisions of sections 10 to 20, while section 20 expressly provides that, notwithstanding any provision of the Code, the trial of offences before a Special Judge shall not be by jury or with the aid of assessors. In addition to prescribing enhanced punishment and the provision of whipping, the Act eliminates the committal proceedings under section 13(1), permits the Special Judge to record merely a memorandum of the evidence, and grants the Judge a broader authority to refuse to summon a defence witness than that given to a regular Court under section 257(1) of the Code of Criminal Procedure. The Act also deprives the accused of the right to seek transfer or revision. The Court observed that these departures from ordinary law inevitably prejudice persons subjected to the procedure established by the Act. It referred to its earlier decisions in State of West Bengal v. Artwar Ali Sarkar and Kathi Raning Rawat v. State of Saurashtra, wherein it held that Article 14 forbids discrimination not only by substantive legislation but also by procedural law. The Court noted that similar procedural departures in the West Bengal Special Courts Act and the Saurashtra Ordinance amounted to discrimination against individuals tried by Special Judges, and that provisions such as section 5(1) of the West Bengal Act and section 11 of the Saurashtra Ordinance—both corresponding to section 12 of the Bombay Public Security Measures Act—were unconstitutional because they authorised the Government to direct specific “cases” to Special Judges. Accordingly, given the numerous departures from ordinary law introduced by the Bombay Public Safety Measures Act, 1947, the Court concluded, on a parity of reasoning, that section 12 of that Act, insofar as it permits the Government to direct particular “cases” to be tried by a Special Judge, is likewise unconstitutional.

The judgment observed that the provision authorising the Government to direct particular cases to a Special Judge was likewise unconstitutional. The Attorney-General representing the State of Bombay did not dispute this legal conclusion; instead, he emphasized the chronological facts surrounding the proceedings. He noted that the alleged offences occurred in May 1949, that the Special Court was constituted and the Special Judge appointed in August 1949, and that in the same month the relevant cases were assigned to the Special Judge. He further pointed out that the Special Judge formally framed charges against the appellants on 13 January 1950, and that the testimonies of seventeen witnesses had been recorded before the Constitution of India came into force, at a time when the Bombay Public Safety Measures Act, 1947, was still fully operative. Relying on the authority of the Supreme Court’s decision in Keshavan Madhava Menon v. The State of Bombay, he argued that the Constitution does not operate retrospectively and therefore does not disturb rights that had already been acquired or liabilities that had already been incurred under statutes that were valid prior to the Constitution’s commencement. He quoted the majority opinion in that case, which held that such pre-Constitutional laws continue to apply to all past transactions and to the enforcement of rights and liabilities that had arisen before the Constitution’s effective date. Consequently, he contended that legal proceedings initiated before the Constitution’s enforcement were not affected by its provisions and could lawfully proceed. In the cited Menon case, the appellant, who was the Secretary of People’s Publishing House, Ltd., Bombay, had been accused in September 1949 of publishing a pamphlet deemed a “news sheet” under section 2(6) of the Indian Press (Emergency Powers) Act, 1931. He was arrested on 9 December 1949 and prosecuted before the Chief Presidency Magistrate at Bombay for contravening section 15(1) of that Act and for committing an offence punishable under section 18. The Constitution came into force on 26 January 1950 while the trial was pending. On 3 March 1950 the appellant filed a written statement asserting that the definition of “news sheet” in section 2(6) and the provisions of sections 15 and 18 were inconsistent with article 19(1)(a) of the Constitution and therefore void under article 13. He subsequently filed a petition on 7 March 1950 under article 228 in the High Court. The Bombay High Court declined to determine whether sections 15 and 18 conflicted with article 19(1)(a); instead, it assumed that even if a conflict existed, the proceedings that had begun before the Constitution’s commencement could continue. The High Court interpreted the term “void” in article 13(1) as meaning “repealed” and applied the relevant rule of the General Clauses Act, thereby allowing the trial to proceed despite the constitutional challenge.

The Court noted that section 6 of the General Clauses Act, which article 367 had made applicable for interpreting the Constitution, was referred to by the High Court. The High Court had dismissed the applicant, and the appellant subsequently filed an appeal before this Court after securing a certificate under article 132(1) of the Constitution.

The majority of this Court held that the Constitution did not possess any retrospective effect; its operation was wholly prospective. Accordingly, any existing law that was inconsistent with the fundamental rights became void only to the extent of that inconsistency and was not void for all purposes. In other words, after the commencement of the Constitution, no pre-existing law could, by virtue of article 13(1), be allowed to impede the exercise of any fundamental right, but article 13(1) could not be interpreted as erasing the inconsistent law entirely from the statute book or nullifying its effect on past transactions, because such an interpretation would give the law a retrospective dimension that the Constitution did not intend.

The Court further explained that such a law continued to operate for all past transactions and for the enforcement of rights and liabilities that had accrued before the Constitution came into force. The same view was expressed in the observations of Justice Mahajan, who delivered a separate but concurrent judgment. He observed that a provision which, from a specific date, rendered an existing law void only to the extent of its repugnancy did not operate retrospectively and could not affect pending prosecutions or actions taken under that law. Consequently, there was no need to introduce a saving clause, nor was it necessary to rely on a legislative provision of the kind found in the Interpretation Act or the General Clauses Act.

Justice Mahajan added that, because the Constitution was not retrospective, it could not in any manner affect prosecutions that had been initiated to punish offences that were complete under the law in force at the time of their commission. The Court observed that, in the case under consideration, the prosecution had been commenced according to the ordinary procedural law. The sole question was whether a criminal proceeding instituted for a violation of the Indian Press (Emergency Powers) Act, which amounted to a completed offence before the Constitution’s commencement, could continue after the Constitution came into force where no procedural change was involved.

The decision concluded that, although acts which, before the Constitution, constituted an offence under that Act would not amount to an offence if performed after the Constitution’s commencement, the Constitution’s lack of retrospective operation did not erase offences that were completed before its commencement. Therefore, the offender could still be prosecuted despite the Constitution having come into force.

In that case it was held that a person could still be prosecuted after the Constitution became effective. The decision in Keshavan Madhava Menon’s case explained that the law applied to past transactions and to the enforcement of all rights that had been acquired or liabilities that had been incurred before the Constitution’s commencement. If the law did not exist, the offence created by it would automatically cease to exist, and there would be no question of punishing an offence that no longer existed. The observations in that case dealt with the substantive rights that had been acquired or the liabilities that had arisen under the Act before the Constitution came into force. The question of which procedural law would be used to enforce those rights and liabilities was not addressed, because throughout the proceedings the same procedural regime was applied, namely the procedure laid down in the Code of Criminal Procedure. Procedural law generally governs legal proceedings from their beginning to their termination and is usually understood as a continuous process. The Bombay Public Safety Measures Act of 1947, in sections ten to seventy and under the heading “Special Courts,” creates a special procedure for trial before a 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 that the government directs to the Special Judge need not be the special offences created by the Act itself; they may relate to any offence under any law, such as the Indian Penal Code, the Arms Act, or the Bombay District Police Act. It has been observed that the special procedure prescribed by the contested Act departs from the ordinary law of procedure and, in several important respects, harms the interests of the persons subjected to it, rendering it discriminatory. This discrimination does not stop with the Special Judge taking cognizance of the case without the case being formally committed to him; it continues in later stages of the proceedings. At those later stages the person subjected to the special procedure cannot obtain a full recording of the evidence for or against him, may be denied summons for all witnesses he wishes to call in his defence because the Special Judge decides that such evidence is not material, and he is unable to exercise his right to apply to a higher court for transfer of the case even when the Special Judge has shown gross bias, or to seek revision of any order made by the Special Judge. Because the Act was entirely valid before the Constitution came into force, the portion of the proceedings before the Special Judge that had been governed by this special procedure up to that date cannot be challenged, even though it may have been discriminatory. However, if the discriminatory procedure continues after the Constitution became operative, surely the accused

In this case the Court observed that a person may fairly question why he was being treated differently from other individuals accused of similar offences with respect to the procedure applied to his case. The Court cited Maxwell’s Interpretation of Statutes, ninth edition, page 232, stating that no person possessed a vested right to any particular mode of procedure; rather, a person held only the right to prosecute or defend according to the procedure then prescribed by the Court, and if Parliament altered that procedure the person was bound to follow the new mode. From this principle the Court inferred that, in the absence of a special provision to the contrary, no individual also possessed a vested liability concerning procedural matters, and therefore procedural changes imposed by statute could not be contested on the basis of a vested right. The Court then asked why this position should alter when the statute prescribing a discriminatory procedure became void because it conflicted with the constitutional guarantee of equal protection under article 14. While recognising that substantive rights and liabilities accrued before the Constitution remained enforceable, the Court relied on the ruling in Keshavan Madhava Menon’s case to hold that after the Constitution came into force no one could insist that those rights or liabilities be enforced through a procedure that now contravened article 14. The Court noted the respondents’ argument that no discrimination existed within the mischief contemplated by article 14, because the appellants’ cases had been duly sent for trial to the Special Court before the Constitution took effect. Consequently the respondents contended that the appellants could not claim similarity with persons whose cases had not been referred to the Special Court before that date or with individuals who committed comparable offences thereafter. The Court accepted that, under those circumstances, the continued application of the procedure contained in the impugned Act to the appellants’ cases did not constitute discrimination in the eyes of the law, and therefore it did not fall within the prohibition of article 14. Accordingly, article 14 was deemed inapplicable, and the Court held that the procedure laid down in the impugned Act remained valid and enforceable for those persons whose cases had been subjected to it prior to the advent of the Constitution, meaning that no procedural change was required for those cases.

In this case the Court rejected the contention that the procedure governing the appellants’ cases should remain unaffected, explaining that the argument was unsound. The Court reaffirmed that while Article 14 prohibits legislation that arbitrarily creates classes, it does not forbid reasonable classification when it is necessary for effective lawmaking. For a classification to be permissible, the Court stated, two requirements must be satisfied: first, the classification must rest on an intelligible differentia that distinguishes the persons or things placed in one group from those excluded; second, that differentia must have a rational connection to the purpose that the Act seeks to achieve. The Court emphasized that a proper nexus must exist between the basis of the classification and the objective of the legislation. To illustrate this principle, the Court cited Section 11 of the Contract Act, which bars individuals who have not attained majority from entering into contracts; the age-based classification clearly relates to contractual capacity, thereby satisfying both conditions for a valid classification. Turning to the present matter, the Court observed that although the initial part of Section 12 of the Bombay Act, like analogous provisions in other statutes, appears to suggest a classification, the clause that authorises the government to direct particular “cases” to the Special Court does not actually rest on any classificatory basis. Moreover, the alleged basis for the classification—the fact that certain cases had been referred to the Special Court before the Constitution came into force—has no reasonable relationship to the stated objectives of the Act, which are to consolidate and amend laws concerning state security, public order, and the maintenance of essential supplies and services. The Court reasoned that if security or public order considerations require the special procedure, there is no logical reason to apply it only to cases already referred and to exclude those not yet referred at the constitutional commencement; the same considerations apply equally to both groups. Consequently, the Court concluded that no nexus connected the purported classification to the Act’s objectives, rendering the classification impermissible. It described the classification as fanciful and lacking any rational foundation, and found no justification for applying the special procedure to the appellants’ “cases” any more than to cases that had not been referred to the Special Court.

The Court observed that the Special Court had been in operation only until the twenty-sixth day of January, 1950, and that no special or unusual circumstances had been demonstrated which would render the appellants’ cases particularly appropriate for the special procedure prescribed by that Court. In the absence of any rational basis for distinguishing the appellants’ cases from all other cases, as had been explained earlier, the Court held that, after the Constitution came into force, there was no justification for denying the appellants the ordinary procedural rights that are available to any accused person. Those ordinary rights included the ability to move the Court for a transfer or for a revision, the right to obtain process for the attendance of defence witnesses, and the right to have the testimony of witnesses recorded in the same manner as in a regular trial conducted under the procedure prescribed by the Code of Criminal Procedure.

The Court further declared that it was evident that the discrimination against the appellants persisted even after the Constitution became effective. The continuation of the discriminatory procedure after the constitutional date, the Court said, amounted to a breach of the fundamental right guaranteed by article 14. Because the special procedure was inconsistent with article 14, it became void under article 13. Since there was no vested procedural right or liability attached to the special procedure, the appellants were entitled to be tried according to the ordinary criminal procedure from the date the Constitution became operative.

The Court clarified that the appellants’ grievance did not arise from any act that occurred before the twenty-sixth of January, 1950. Rather, their complaint concerned the unconstitutional discrimination that they alleged had been inflicted upon them after that date. Their cause of action was therefore post-constitutional, and it had to be examined in the light of the rights guaranteed by the Constitution. Viewed in that manner, the Court found no doubt that the appellants had been subjected to procedural discrimination after the Constitution’s commencement.

Relying on earlier decisions in the West Bengal and Saurashtra cases, the Court noted that discrimination may lie in the procedure as well as in substantive law. Consequently, the continuation of the trial after the constitutional date, carried out under the discriminatory procedure and resulting in the appellants’ conviction and sentence, could not be sustained. The Court further observed that, in effect, the Special Judge’s jurisdiction terminated because the Judge was authorized to act only under the special procedure, and that procedure had been declared void. Hence the Judge could not continue to function as a Judge of a Special Court created by the impugned Act.

The learned Attorney-General had relied upon the Privy Council decision in Keshoram Poddar v. Nundo Lal Mallick. The Court recounted that the Calcutta Rent Act, 1920, had permitted a landlord or tenant in Calcutta to obtain from the Controller of Rents a certification of the standard rent of the premises and also to apply to the President of the Calcutta Improvement Tribunal for a revision of the Controller’s order. The Act was originally intended to remain in force for three years, was subsequently extended to the end of March 1924, and later the year of expiry was amended to 1927.

In that statute, the original expiration date of 1924 was replaced by a condition stating that after 31 March 1924 the Act would no longer apply to any premises whose rent exceeded Rs 250 per month. The appellant had taken possession of the premises on 1 June 1920, but the rent had not been fixed at that time. He continued to occupy the premises until March 1923, and the issue before the court was the amount of rent that should be payable for that period of occupation. Because a dispute arose, the appellant applied to the Controller, who on 23 October 1922 fixed the rent at Rs 4,500 per month. The appellant then appealed to the President of the Improvement Tribunal on 25 November 1922 seeking a revision of that decision. The President could not consider the revision until after 31 March 1924, and when the application was finally placed before him on 3 August 1924, he held that he had no jurisdiction because the Act had ceased to apply to the premises. It is important to note that the application to the President had been made well before 31 March 1924 and that the period for which the rent was to be determined covered June 1920 to March 1923. The Privy Council had ruled that the Act applied from the moment the parties began to act under it, which was before March 1924, and therefore the President had jurisdiction to decide the matter. The court considered that the Privy Council decision was not applicable to the present case, because the present problem did not concern a period before the Constitution when the Act was valid and the Special Judge could apply the special procedure. The question before the court now was whether continuing the procedure prescribed by the Act after the Constitution came into force operated to the prejudice of the appellants and therefore violated their newly acquired fundamental right to equal protection of the law under article 14. The Constitution did not have retrospective effect to invalidate proceedings already completed, but it did not allow the special procedure to obstruct the exercise or enjoyment of post-constitutional rights, and consequently any discriminatory procedure adopted after the Constitution must be struck down. Accordingly, the court held that the Privy Council decision could not be applied. For the reasons set out above, the convictions of the appellants by the Special Judge after the Constitution’s commencement, based on the special procedure of the impugned Act, and the sentences imposed on them could not be sustained. Therefore, the appeals were allowed, the convictions and sentences were set aside, and the appellants were declared entitled, after the Constitution, not to be subjected to discriminatory procedural treatment.

In this order, the Court instructed that the two accused persons be subjected to a trial that conforms to the applicable law for the offenses which the prosecution contended they had perpetrated. The direction further required that, pending the commencement and conclusion of such trial, the accused remain detained in prison as persons awaiting trial, that is, as under-trial prisoners. Accordingly, the Court granted relief to the appellants by allowing the appeals that had been filed against the earlier judgments. The order also recorded the legal representatives who had appeared on behalf of the parties. For the appellants, the designated legal representative was Naunit Lal. For the State, which was the respondent in the proceedings, the representative named was P. A. Mehta. Additionally, an intervener was listed, whose counsel was Rajinder Narain. The Court’s directive therefore combined the substantive order of conducting a lawful trial, the procedural instruction to keep the accused in custody during the interim period, the substantive granting of the appeals, and the identification of the legal agents representing each side. The order was pronounced as part of the judgment disposing of the appeals, and it was intended to take immediate effect. The Court emphasized that the custody of the accused would continue without interruption until the trial commenced and a verdict was rendered. No other relief was granted beyond the directions specified.