EMPEROR Vs. BENOARI LAL SARMA

JUDGEMENT

(1.) THIS is an appeal by the Government of India from a judgment of the Federal Court (Varadachariar C. J. and Zafrulla Khan J. , Rowland J. , dissenting) dated January 4, 1943, dismissing an appeal from a judgment of the High Court at Calcutta (Sir Harold Derbyshire C. J. Khundkar J. and Sen J. ) setting aside a conviction of 15 individuals by a Special Magistrate purporting to act under Ordinance No. II of 1942 promulgated by the Governor-General on January 2, 1942. The ground upon which the conviction was set aside was that the Ordinance was ultra vires. The question is largely academic, for upon Ordinance No. II being declared by the Federal Court to be ultra vires, Ordinance XIX of 1943 was promulgated to replace it. But in view of the elaborate argument that has taken place and the way in which the topic has been dealt with in the judgments in India, their Lordships think that the better course is to decide the question whether Ordinance II is invalid, especially as this may be of assistance in deciding other questions which may arise hereafter as to the validity of Ordinances made, in cases of emergency, by the Governor-General under the authority of Section 317 and para. 72 of Schedule 9 of the Government of India Act, 1935.

(2.) THEIR Lordships must, however, make a preliminary observation on the way in which the issue of the validity of the Ordinance has been dealt with by, the Indian Courts. The appeal from the Special Magistrate who convicted the accused was brought to the High Court under its criminal revisionary jurisdiction by a petition for revision under Sections 435 and 439 of the Code of Criminal Procedure. This assumes that the Court below was a valid inferior Court whose decision calls, in the view of the appellants who were convicted and sentenced by it, for revision. But if the Special Magistrate who tried the case was a valid Court, duly authorised by the Ordinance, then by the very terms of the Ordinance, there is no appeal to the High Court Mr. Justice Sen, at the beginning of his judgment in the High Court, points this out very clearly. If, on the other hand, the Ordinance had no validity, the Special Magistrate was in the same position as a private person who took upon himself to conduct a trial of the appellants and to sentence them to imprisonment without any authority at all. In this latter alternative, the remedy of release by process in the nature of habeas carpus (Section 491 of the Criminal Procedure Code) would be the appropriate remedy. THEIR Lordships content themselves with pointing this out, without, seeking to dispose of the litigation on this ground, as in their opinion the matter can be satisfactorily dealt with by considering whether the objections taken to the Ordinance have any validity.

(3.) TWO objections, however, were raised to the validity of the Ordinance in connection with the question of "emergency. " The Ordinance recited that "an emergency has arisen which makes it necessary to provide for the setting up of special criminal Courts," and the body of the Ordinance contained the necessary frame work for Courts of Criminal Jurisdiction consisting of Special Judges, Special Magistrates, and Summary Courts, the provisions as to their respective limits of jurisdiction and procedure, together with restrictions on appeal (which fall to be separately considered in this judgment), but the Ordinance did not itself set up any of these Courts, but provides by Section 1, Sub-section (3) that the Ordinance shall come into force in any Province only if the Provincial Government being satisfied of the existence of an emergency arising from any disorder within the Province or from, a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is rescinded.