EDWARD EZRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal, which has come before us on special leave, is directed against a judgment of Chunder, J. of the Calcutta High Court dated the 5th of June, 1932 rejecting the appellants' application for quashing of certain criminal proceedings started against them and pending before a special court constituted under a notification of at Government of West Bengal issued under West Bengal Act No. 12 of 1952. To appreciate the contentions raised on behalf of the appellants it would be necessary to narrate a few antecedent facts. The two appellants along, with four other persons, one of whom has died since then, were placed on trial before the First Special Tribunal, Calcutta, which was one of the Tribunals constituted under the Criminal Law Amendment Ordinance No. 29 of 1943 passed by the Governor-General of India under Section 72 of the Government of India Act, 1935, on charges of bribery as also of conspiracy under Section 120-B of the Indian Penal Code, read with Section 420 of the Code which was later on replaced by Section 409. The trial ended in conviction of all the accused, though not on all the charges brought against them and by its judgment dated the 26th May, 1952, the Tribunal sentenced them to various terms of imprisonment and fine.

(2.) It may be convenient to refer here to two of the provisions of Ordinance 29 of 1943 under which the trial was held and which are material for our present purpose. One of these relates to the composition of the special tribunal and Section 4(1) of the Ordinance lays down that "a special tribunal constituted under this Ordinance shall consist of three members". This provision was modified by Section 3 of Ordinance 1 of 1950 which lays down that so far as the First Special Tribunal at Calcutta is concerned, for the words "there members" occurring in Section 4(1). the words '"two members" shall be substituted. The other material provision is contained in Section 5(1) of the ordinance as it stood after the amendment of 1946, read with subsection (2) of the same section. Section 5 (1) provides that

(3.) To proceed with the narrative of facts, there were separate appeals taken by all the five accused against the judgment of the special tribunal, mentioned above, to the High Court of Calcutta under the provisions of the Ordinance itself. The appeals were heard by a Division Bench consisting of Chakravartti, C. J. and Sinha, J. The learned Judge did not enter into the merits of the cases but allowed the appeals on two points of law which according to them, vitiated the entire trial. It was held in the first place that the special tribunal, which consisted of three members 'to wit' Mr. Barucha Mr. Joshi and Mr. Bose at the material time, legally ceased to exist on and from the16th of December, 1949, when Mr. Bose, one of the members resigned. It is true that the Amending Ordinance No. 1 of 1950 was passed on the 11th of January, 1950, but as the tribunal was not reconstituted as a fresh tribunal by means of a fresh notification in the gazette as required by Section 3 of the new Ordinance, the two remaining members could not be regarded as a legally constituted tribunal within the meaning of the Ordinance and all the proceedings before it after the resignation of the third member, including the judgment delivered by it were void.