EMPEROR Vs. KANTILAL MANGALDAS

JUDGEMENT

(1.) THE question that arises in this case is, whether Ordinance XIX of 1943 is a valid Ordinance. It was promulgated on June 5, 1943, to repeal Ordinance II of 1942, which established Special Criminal Courts in India for trial of certain classes of offences. Ordinance II of 1942 was held to be intra vires by the Bombay High Court in Emperor v. Shreekant Pandurang Ketkar (1943) 45 Bom. L.R. 323, though the Calcutta High Court arrived at an opposite conclusion in Banoari Lal v. Emperor [1943] A.I.R. Cal. 285 as regards Sections 5, 10, 14 and16. Eventually the Federal Court of India held in Emperor v. Banoari Lal [1943] A.I.R.F.C. 36 that Sections 5, 10 and 16 of the Ordinance were ultra vires. This decision was given on June 4, 1943. THE Governor General deliberated overnight and promulgated Ordinance XIX of 1943 the next day. THE new Ordinance accepted the decision of the Federal Court in so far as it repealed Ordinance II of 1942. It also proceeded to terminate pending proceedings; but it went further to continue sentences passed under the repealed Ordinance, though it made provision for appeal or revision from those sentences. THE effect of the Ordinance is that from June 5, 1943, Ordinance II of 1942 ceased to be operative, all pending proceedings came to an end, persons who had acted under the repealed Ordinance were indemnified against acts done by them. Section 3 of the Ordinance continued the sentences already pronounced, and provision was made for appeals to the High Courts and Sessions Court.

(2.) THE history of the emergency legislation in India up to October 26, 1942, is set out at pp. 324 to 326 of Vol. 45 of the Bombay Law Reporter. As held in that case the Bombay High Court was of opinion that Ordinance II of 1942 was valid, a view which was subsequently overruled by the Federal Court on the ground that it was a delegation of authority to prosecute at the sweet will of an executive authority.

(3.) THE Indian Legislature can give retrospective effect to certain legislation; but it cannot go further and say that the sentences passed under an invalid Ordinance are legal. Here the Courts were constituted by an order of an executive officer. THE new Ordinance cannot validate sentences passed by such Courts. It says in effect that sentences passed by a Court that has no existence are valid. Where the constitution of a Court as well as the procedure followed by it are held illegal, how can the sentence passed by such a Court stand. If it was not open to the Governor General to constitute a special Court, then equally it was not competent to him to validate sentences passed by such a Court.