Edward Ezra And Another vs The State Of West Bengal

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 83 of 1954

Decision Date: 30 November, 1954

Coram: Mukherjea

In this matter, the Court recorded that the petitioners, Edward Ezra and another, appealed to the High Court of Calcutta against convictions rendered by the First Special Tribunal in Calcutta, which had been constituted under the Criminal Law Amendment Ordinance No XXIX of 1943. The High Court set aside those convictions on the ground, among others, that the Special Tribunal had not been properly constituted, and it ordered that a retrial be conducted by a court of competent jurisdiction, leaving it to the State Government to decide whether to proceed with the trial. Subsequently, on 30 July 1952, the West Bengal Criminal Law Amendment (Special Courts) Amendment Act, 1952—identified as West Bengal Act XII of 1952—came into force, having been preceded by an ordinance that introduced substantially similar provisions and amended certain aspects of the West Bengal Criminal Law Amendments (Special Courts) Act of 1949. In August 1952, the Government of West Bengal issued a notification constituting three Special Courts, one of which was designated as the West Bengal Second Special Court. The pending case against the appellants was assigned to this Second Special Court for the purpose of trial.

The appellants contended that section 12 of West Bengal Act XII of 1952 operated as a bar to the trial of their case under the new Act. They argued that, pursuant to the High Court’s orders in the appeals, the present proceedings constituted a continuation of the original case that had been instituted before the First Special Tribunal in Calcutta under the Central Ordinance of 1943, and that the retrial now before the Special Court constituted under the 1952 Act was therefore prohibited by section 12. The appellants further pointed out that their case was pending before the High Court on 9 April 1952—the date on which the Ordinance, later incorporated into the Act, commenced—and that section 12 expressly rendered the Act inapplicable to such cases, describing them as “proceedings pending on the date of the commencement … in any court other than a Special Court.” Accordingly, they asserted that the present trial was merely a continuation of the original proceeding before the First Special Tribunal and that, under the High Court’s direction, it should not be subjected to the jurisdiction of the newly constituted Special Court.

In this case, the Court held that the matters pending before the High Court on 9 April 1952 consisted of the appeals filed by the appellants and their co-accused against the judgment of the First Special Tribunal, Calcutta, which had been constituted under the Central Ordinance XXIX of 1943. The Court explained that, to bring section 12 of the West Bengal Act XII of 1952 into operation, it was necessary to demonstrate that the proceedings which were then pending before the Special Court under that Act were, on the said date, pending before a court that was not a Special Court. The phrase “proceedings in a court other than a Special Court” appearing in section 12, the Court clarified, refers to proceedings concerning the trial of a case in the original court and does not encompass appellate proceedings.

The Court observed that the legislature’s purpose in enacting section 12 was to prevent cases that were already pending before an ordinary or non-Special Court at the time the Ordinance came into force from being transferred to a Special Court for trial, even though the new section 4(1) introduced by the Ordinance permitted such transfers in other circumstances. This legislative intent, the Court noted, could not be applied to appellate proceedings because there is no scenario in which cases pending on appeal could be assigned to Special Courts for trial. How the matter should proceed after an appellate court orders a rehearing, the Court said, depends entirely on the order issued by the appellate court, which is fully competent to make such an order.

Accordingly, the Court found that the High Court had not acquitted the accused nor ordered their discharge; instead, it had set aside the conviction and sentence and directed that the cases be retried before a competent court. Consequently, the only court competent to try these cases was the Special Court established under Act XII of 1952, and its jurisdiction could not be displaced. The Court emphasized that the High Court’s order itself was based on the premise that no trial could be conducted by the Tribunal constituted under Ordinance XXIX of 1943.

The judgment then proceeded to set out the criminal appellate jurisdiction for Criminal Appeal No. 83 of 1954. Special leave to appeal had been granted by the Supreme Court by its order dated 14 September 1953 from the judgment and order dated 5 June 1953 of the High Court of Judicature for the State of West Bengal at Calcutta in Criminal Revisions Nos. 1205 and 1204 of 1952. Counsel for the appellants and counsel for the respondent were listed, and the judgment dated 30 November 1954 was delivered by Justice Mukherjea. The appeal, presented on special leave, challenged the Calcutta High Court judgment of 5 June 1952 that had rejected the appellants’ application for quashing certain criminal proceedings that had been instituted against them and were pending before a special court constituted under a notification issued under West Bengal Act XII of 1952.

In order to understand the matters raised by the appellants, the Court found it necessary to set out the background facts. The two appellants and four other individuals – one of whom has since died – were tried before the First Special Tribunal in Calcutta. This tribunal was one of those created under the Criminal Law Amendment Ordinance XXIX of 1943, which had been promulgated by the Governor-General of India pursuant to section 72 of the Government of India Act 1935. The prosecution alleged that the accused had been involved in bribery and in a conspiracy offences under section 120-B of the Indian Penal Code read with section 420 of the Code, a provision that was later replaced by section 409.

The trial concluded with the conviction of every accused, although not on each of the charges that had been framed against them. By its judgment dated 26 May 1952, the Special Tribunal imposed varied terms of imprisonment and, where appropriate, fines on the convicted persons. The Court noted two specific provisions of Ordinance XXIX of 1943 that governed the trial and that were relevant to the present appeal. The first provision, section 4(1), originally provided that “a special tribunal constituted under this Ordinance shall consist of three members.” Section 3 of Ordinance I of 1950 later amended this wording for the First Special Tribunal at Calcutta, substituting the phrase “two members” for the original “three members.” The second relevant provision comprised sections 5(1) and 5(2) as they stood after the 1946 amendment. Section 5(1) authorised the Central Government, by means of a Gazette notification, to allocate cases for trial to each special tribunal, while section 5(2) declared that the tribunal would have jurisdiction to try only those cases that had been so allocated and only with respect to the offences listed in the schedule attached to the Ordinance.

The effect of these provisions, the Court explained, was that although the schedule named a number of offences, the tribunal could try only those specific cases that the Central Government chose to assign to it. Consequently, the jurisdiction of the tribunal was limited to the discretionary allotment made by the Government. Following the conviction, each of the five accused filed a separate appeal against the Special Tribunal’s judgment, invoking the mechanisms provided in the Ordinance itself. These appeals were heard by a Division Bench of the Calcutta High Court comprising Chief Justice Chakravartti and Justice Sinha. The learned judges refrained from examining the substantive merits of the matters raised in the appeals; instead, they permitted the appeals on two points of law that, in their view, vitiated the entire trial process.

In its judgment the Court identified two principal grounds of law that, in its view, invalidated the entire trial. First, the Court found that the special tribunal, which at the relevant time was composed of three members—Mr Barucha, Mr Joshi and Mr Bose—ceased to exist legally on 16 December 1949 when Mr Bose resigned. Although the Amending Ordinance I of 1950 had been enacted on 11 January 1950, the Court held that the tribunal had not been reconstituted through a fresh Gazette notification as required by section 3 of the amended Ordinance. Consequently, the two remaining members could not be regarded as a legally constituted tribunal within the meaning of the Ordinance, and all proceedings conducted after the resignation of the third member, including the tribunal’s judgment, were void. Second, the Court observed that section 5(1) of the Ordinance XXIX of 1943, as amended in 1946, read with section 5(2) authorized a special court to try only those cases of the offences listed in the schedule that the State Government, in its discretion, directed it to try. The Court held that this discretionary limitation became inconsistent with Article 14 of the Constitution as soon as the Constitution came into force. Accordingly, the trial conducted after 26 January 1950 was unlawful. Although no evidence had been taken after that date, the Court noted that procedural irregularities and deviations from ordinary practice were evident even during the argument phase and the pronouncement of judgment, thereby necessitating the setting aside of the conviction and sentence. Having concluded that the trial was invalid due to the aforementioned illegalities, the Judges turned to the question of the appropriate final order in the appeals. Considering the extensive evidence on record, they determined that an order of acquittal would be inappropriate. The Judges expressed sympathy for the accused, who had endured a prolonged and oppressive trial lasting nearly four years, but they affirmed that such considerations could not prevent the Court from issuing the order mandated by law. Consequently, the High Court ordered that the accused be retried by a court of competent jurisdiction in accordance with law, leaving it to the State Government to decide whether to proceed with the new trial. This order was pronounced on 29 April 1952. Subsequently, on 30 July 1952, West Bengal Act XII of 1952 came into force following an ordinance that introduced provisions similar to, but amending in certain respects, those of the West Bengal Criminal-Law Amendment (Special Courts) Act of 1949. On 22 August 1952, three special courts were constituted by a notification of the Government of West Bengal under section 4(2) of that Act.

In 1952 three special courts were created under the provisions of the West Bengal Criminal-Law Amendment (Special Courts) Act of 1949, and one of these courts was designated as the West Bengal Second Special Court. By a notification dated 19 September 1952, Mr N L Some was appointed as the Special Judge who would preside over that court. Shortly thereafter, on 8 October 1952, the government issued a further notification assigning the case involving the appellants and their co-accused to the Second Special Court for trial. A few weeks later, on 12 November 1952, a new complaint was lodged by Mr Kalidas Burman, who was an Inspector of Police with the Delhi Special Establishment. The complaint charged the accused under Section 120-B read with Section 409, and also under Sections 409 and 109 of the Indian Penal Code.

Following the filing of that complaint, summonses were issued on 21 November 1952 in accordance with the charge. Within six days of the issuance of those summonses, all five accused instituted proceedings before the High Court of Calcutta, seeking to have the process set in motion by the complaint quashed. The High Court responded by issuing rules in the accused’s favour, directing the State Government to show cause why the proceedings should not be set aside. Those rules were placed before the learned Judge Chunder, who sat singly, and on 5 June 1953 the Judge discharged the rules.

The appellants, who were also the petitioners in Revision Cases Nos 1204 and 1205 of 1952, then sought leave to appeal the discharge order to the Supreme Court. Their application for leave was initially refused, but subsequently they obtained special leave to appeal, and the present matter therefore came before this Court.

In support of the appeal, counsel for the petitioners argued that Section 12 of West Bengal Act XII of 1952 operates as a statutory bar to any trial of the present case under that Act. They contended that the High Court’s earlier orders indicated that the case originally began before the First Special Tribunal of Calcutta under the Central Government Ordinance XXIX of 1943, and that the same matter was now being retried before the special court created under the 1952 Act. It was further submitted that the original proceedings were pending before the High Court on 9 April 1952—the date on which the West Bengal Ordinance preceding the Act came into force—and that Section 12 expressly excludes the application of the 1952 Act to such pending matters. The amendment to the earlier Act XXI of 1939, effected by West Bengal Ordinance VIII of 1952, came into force on the same date and was later replaced by Act XII of 1952. Section 12 of that Act states: “Nothing in this Act shall apply to any proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than a special court.” Counsel further maintained that the present case is merely a continuation of the original proceedings started under the 1943 ordinance.

The Court observed that the matter had initially been tried before the First Special Tribunal of Calcutta under the Central Government Ordinance XXIX of 1943 and that the Tribunal’s decision had been appealed to the High Court. Those appeals remained pending before the High Court at the time Ordinance VIII of 1952 was enacted, and consequently section 12 of West Bengal Act XII of 1952 was intended to keep the provisions of that Act from applying to the present case. For a correct determination of the issue, the Court held it necessary first to examine the exact scope and purpose of section 12 of the 1952 Act. The Court noted that the 1952 Act had merely amended certain provisions of the earlier West Bengal Criminal Law Amendment (Special Courts) Act XXI of 1949. Act XXI of 1949 had provided for the creation of special courts presided over by special judges, and it required those courts to follow a special procedure that differed in several respects from the procedure laid down in the Code of Criminal Procedure, a difference that was prejudicial to the accused. Section 4(1) of Act XXI of 1949, as it stood before the 1952 amendment, empowered the Provincial Government, by notification in the official gazette, to allot cases for trial to a special judge. Sub-section (2) of the same section stipulated that the special judge would have jurisdiction to try the cases allotted to him under sub-section (1) with respect to any of the charges for the offences listed in the schedule that might be preferred against the accused, and that any case pending at the commencement of the Act or at the time of such allotment before any court or any other special judge would be deemed transferred to the special judge to whom it was allotted. The combined effect of the two sub-sections was therefore that only those offences specified in the schedule that the Provincial Government chose to allocate to a special judge could be tried in a special court, while the remainder would continue to be tried in the ordinary courts. Moreover, nothing in the provision prevented the Provincial Government from allocating a case already pending before an ordinary court to a special court created under the Act. This unfettered discretion to select, from among the offences listed in the schedule, which cases would be tried under the special procedure, while leaving the others to the ordinary procedure, became, after the Constitution came into force, vulnerable to criticism as being inconsistent with the equal protection guarantee of Article 14. The amendment effected by Ordinance VIII of 1952 removed this defect and eliminated the possibility of discrimination by replacing section 4 of the 1949 Act. Section 4 of the Ordinance substituted the earlier provision and, unlike the original, contained only sub-section (1) and omitted any provision corresponding to sub-section (2) that would have allowed the transfer of cases pending before ordinary courts to special courts. This omission created an anomaly, because the new section made offences listed in the schedule compulsorily triable by special courts, raising a legitimate question as to whether ordinary courts retained jurisdiction to try such pending cases after the Ordinance came into force. The Court concluded that section 12 of the 1952 Act was introduced precisely to address this difficulty by expressly stating that the Act would not apply to proceedings that were pending on the commencement date of the Ordinance.

The Ordinance introduced a provision stating that, notwithstanding any rule in the Code of Criminal Procedure, 1898 or any other law, the offences listed in the schedule could be tried only by special courts. Unlike the earlier Act, the new section did not contain any clause comparable to section 4(2) of the Act, which had permitted cases involving scheduled offences that were already before ordinary courts to be transferred to special courts. This omission created an anomaly because section 4(1) of the Ordinance made it mandatory that the scheduled offences be tried exclusively by special courts. Consequently, a genuine difficulty could arise concerning cases that were pending before ordinary courts at the time of the Ordinance’s commencement, raising the question of whether those ordinary courts retained any jurisdiction to continue the trials after section 4(1) became effective. To remove this difficulty, the legislature introduced section 12 in Act XII of 1952, which superseded Ordinance VIII of 1952. Section 12 expressly declared that the Act would not apply to any proceedings that were pending before a court other than a special court on the date when Ordinance VIII of 1952 came into force. Accordingly, any such pending cases could not be assigned to, or tried by, a special court under the Act. The present dispute therefore required the Court to determine whether the prohibition contained in section 12 applied to the facts before it.

On 9 April 1952, before the High Court, the appellants and their co-accused had filed appeals against the judgment of the First Special Tribunal, Calcutta, which had been constituted under Central Ordinance XXIX of 1943. The Court could accept the argument of the appellants’ counsel that, because the High Court was not a special court, the provisions of section 12 could not directly affect those appellate proceedings. However, that observation alone offered no advantage to the appellants. For section 12 to be invoked, it was necessary to demonstrate that the proceedings now before the special court under West Bengal Act XII of 1952 were pending before a non-special court on 9 April 1952. The Court held that the phrase “proceedings in a court other than a special court” used in section 12 referred to the trial of a case in its original forum, not to appellate proceedings. An examination of the provisions of Act XII of 1952 showed that all of its sections dealt with the constitution, jurisdiction, powers of the special courts and the special procedural rules applicable to the trial of cases; none addressed appeals. The legislative intent behind section 12, as previously explained, was to prevent cases that were being tried in ordinary courts at the moment the Ordinance became operative from being transferred to special courts. This purpose, the Court observed, could not be extended to appellate matters, because there was no scenario in which an appeal pending before a higher court could be reassigned to a special court for trial.

In this case the Court explained that the purpose of the provision which came into force with the Ordinance was to prevent any case that was already being tried in an ordinary court on the day the Ordinance became operative from being transferred to a special court for trial, even though the new Section 4(1) inserted by the Ordinance authorized such transfers. The Court observed that this purpose could not extend to appellate proceedings because there is no situation in which a case that is awaiting decision on appeal can be assigned to a special court for its trial. The further course of a case after an appellate court orders a rehearing depends solely on the specific direction issued by that appellate court, which is within its lawful authority. If the appellate court orders that the case be retried before an ordinary court, then the jurisdiction of any special court is removed, not by operation of Section 12 of the Special Act, but by the very order of the appellate court. Consequently, the Court held that the existence of appeals pending before the High Court on the relevant date could not trigger Section 12, because those appeals arose from decisions of a court that was not a special court as defined in Act XII of 1952. Whether a retrial directed by the High Court could be conducted by a court established under Act XII of 1952 therefore hinged on the character and effect of the High Court’s order.

The Court noted that the High Court had not acquitted the accused nor had it issued any discharge order in their favour. Instead, the High Court set aside the conviction and sentence and directed that the accused be retried by a competent court, should the Government elect to continue the prosecution. The Court concurred with the argument that, ordinarily, an order for retrial implies that the same tribunal which originally took cognizance of the matter must conduct the further trial, and that the case remains pending before that tribunal until a final disposal is achieved in accordance with law. In the present circumstances, however, the accused were neither acquitted nor discharged; the High Court nullified the proceedings of the special tribunal on the ground that the trial conducted by that tribunal became void from 26 January 1950. This voidness arose because Section 5(1) of the Ordinance, under which the case had been allotted to the special tribunal and by which the tribunal had acquired jurisdiction, became invalid and inoperative when the Constitution came into force, as it conflicted with Article 14 of the Constitution. Accordingly, the special tribunal from which the appeals originated lost its seisin of the cases after 26 January 1950 and possessed no authority to proceed with the trial. Since the High Court ordered that the cases be tried by a competent court, they could not be sent back to the special tribunal, even if such a tribunal were to be reconstituted by the Central Government. The only court capable of trying these matters was the special court created under Act XII of 1952, whose jurisdiction was not displaced by Section 12 of the Act nor by the High Court’s order. Consequently, the Court found no basis to quash the proceedings before that special court and dismissed the appeal.

The Court observed that the trial could not be referred back to the Special Tribunal on the assumption that such a Tribunal either already existed or could be created by the Central Government. It held that the sole court possessing the authority to try the matters in question was the special court established under Act XII of 1952, and that this court’s jurisdiction remained intact. The Court explained that the High Court’s earlier direction was based on the principle that no trial could be conducted by the Tribunal that had been constituted under Ordinance XXIX of 1943, and therefore the special court’s power could not be displaced by that order. Further, the Court noted that the jurisdiction of the special court was not taken away by section 12 of the Act nor by the High Court’s directive. Consequently, the Court found no basis on which to set aside or invalidate the proceedings that were already before the special court. In light of this reasoning, the Court concluded that the appeal raised by the petitioners could not succeed, and accordingly dismissed the appeal.