KANGSHARI HALDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal by special challenges the vires of S.2 (b) and the proviso to S.4 (1) of the West Bengal Tribunals of Criminal Jurisdiction Act, 1952 (W. B. Act XIV of 1952) (hereinafter called the Act). A complaint was filed against Kangsari Haldar and Jogendra Nath Guria (hereinafter called the appellants) in which it was alleged that the appellants along with some others had committed offences under S. 120B read with Ss. 302 and 436 of the Indian Penal Code. The case against them was that in 1947 a tebhaga movement had been launched in Kakdwip area by the communist party and that later on the Bhagehasis were persuaded to claim the entire and not only 2/3 of the produce in pursuance of the said movement. It was further alleged that the leaders of said movement including the appellants preached murder and arson amongst the cultivators and that such preaching and propaganda were followed by arson and murders on a large scale. It was on these allegations that a charge-sheet was submitted against he appellants and the case against them taken up for trial before the third tribunal at Alipore constituted under the Act. Ninety-nine witnesses were examined by the prosecution in support of its case and the Tribunal framed charges against the appellants under the three sections already mentioned by its order dated 16-5-1958. The offences in question are alleged to have been committed during the period beginning from 1-1-1948, and ending on 31-3-1950, within Kakdwip and Sagaour police stations.

(2.) By their Criminal Revision Application No. 640 of 1958 the appellants challenged the validity of the proceedings before the tribunal and applied for quashing the said proceedings and the charges framed against them under S. 439 of the Cr. P. C. as well as Art. 227 of the Constitution in the Calcutta High Court. Their application was first heard by Mitter and Bhattacharya JJ.; but since there was a difference of opinion between the two learned judges the case was referred to Sen J. Bhattacharya J. had taken the view that the impugned provisions of the Act were ultra vires and so he was inclined to allow the revision application and quash the proceedings taken against the appellant; on the other hand, Mitter J. had taken a contrary view, and Sen J. to whom the matter was referred agreed with the view taken by Mitter J. In the result it was held that the impugned provisions of the Act were intra vires and so the rule issued on the appellant's revision application was discharged and the application itself was dismissed. The appellants then applied to the said High Court for a certificate either under Art. 132 or under Art. 134 of the Constitution but their applications were dismissed. Thereupon they moved for, and obtained, special leave from this Court. That is how this appeal has come before this Court; and the only point which it raises for our decision is about the vires of the two impugned provisions of the Act.

(3.) On behalf of the appellants Mr. Acharya has contended that the genesis of the Act should be borne in mind in dealing with the vires of the impugned provisions; and in support of this argument he has strongly relied on the sequence of events which led to the passing of the Act. It appears that the West Bengal Special Courts Act X of 1950 was passed by the West Bengal Legislature and came into force on 15-3-1950. The vires of S. 5 (1) of the said Act were impeached by Anwar Ali Sarkar and others who were being tried under the provisions of the said Act. On 28-8-1951, the Calcutta High Court partially upheld the plea and struck down a part of S. 5 (1). The said decision was challenged by the State of West Bengal before this Court in State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 : (AIR 1952 SC 75); but the appeal preferred by the State was dismissed; and by a majority decision of this Court not only a part of S. 5 (1) but the whole of its was declared to be ultra vires as being violative of Art. 14 of the Constitution. This decision was pronounced on 11-1-1952. Soon thereafter an Ordinance was promulgated (No. 1 of 1952) by the West Bengal Government of March 24, 1952, and in due course this Ordinance was replaced by the Act which came into force on 30-7-1952. Section 12 of the Act purports to repeal the earlier Act of 1950 in conformity with the decision of this Court in Anwar Ali Sarkar's case, 1952 SCR 284 : (AIR 1952 SC 75). The argument is that by passing the Act the West Bengal Government has attempted to achieve the same result which it intended to achieve by S. 5 (1) of the earlier Act, and so, according to the appellants, in substance the decision of this Court in Anwar Ali Sarkar's case. 1952 SCR 284 : (AIR 1952 SC 75), should govern the decision of the present appeal. In any case it is urged that the sequence of events which supply the background to the present Act should carefully be borne in mind in dealing with the merits of the points raised by the appellants.