BISHNUSINGH JANGOO GOND Vs. EMPEROR

JUDGEMENT

(1.) THE order in this case will also cover Miscellaneous criminal cases Nos. 18 of 1943, 20 of 1943, 21 of 1943 and 23 of 1943. These are five applications made under Section 491, Criminal P.C., and are based on the contention that Ordinance No. 2 of 1942, under which ordinance the applicants in all five cases have been tried and convicted by Special Judges appointed under ordinance, is ultra vires. The ordinance is said to be ultra vires on the ground that the Governor-General acting under Section 72, Schedule 9, Government of India Act, cannot legislate again on the same subject and that previous legislation, namely the Defence of India Act of 1939, has already dealt with the question of setting up special tribunals which are to supersede the ordinary Courts which function by virtue of the Code of Criminal Procedure and that the Defence of India Act is unrepealed and that an ordinance made under the provisions of Section 72, Schedule 9, is controlled by the Defence of India Act and has no power to override the provisions of it.

(2.) IN addition to this argument which covers all five applications, there are additional arguments which are applicable only to some of the cases. The first is Misc. criminal Case No. 4 where Bishnu Gond has been sentenced to death by virtue of the powers contained in ordinance 3 of 1942 known as the Penalties Enhancement Ordinance. A further contention arises in Misc. Criminal Oases Nos. 20 and 21 that the method of trial of the applicants in these cases has been so irregular as to amount to a nullity. These points will be considered in due course. It is not disputed that the Governor-General is empowered in a time of emergency, and after a proclamation that a state of emergency exists has been made, to legislate in matters which may fall purely within the provincial field of legislation. That is provided for in Section 102, Government of India Act, neither is it contested that the Governor-General may in cases of emergency make Ordinances under Section 72, Schedule 9, Government of India Act. The contention however is that the Defence of India Act has already been passed in the year 1939 under the powers given in Section 102 of the Act and that in so far as ordinance 2 of 1942, known as the Special Criminal Courts Ordinance, purports to override the provisions of that Act, which inter alia provides for the setting up of special tribunals, it is ultra vires inasmuch as Section 72 indicates that any Ordinance passed in accordance with the powers given by that section is controlled by the Defence of India Act, 1939.

(3.) BUT when the powers of the Crown have been crystallised in a statute, as they have in this case, the exercise of those powers by virtue of the provisions of that statute does not constitute an exercise of the Royal Prerogative, but the powers are exercised by virtue of the authority of the statute and any possible conflict as the result of the exercise of the prerogative in so far as it affects a previous statute dealing with the same powers disappears. There remains then the main question whether the promulgation of Ordinance 2 of 1942 is ultra vires of the powers of the Governor-General in view of the existence of the Defence of India Act and particularly of Section 14 of that Act. Chapter 3, Defence of India Act, provides for the constitution of special tribunals by the Provincial Government, their jurisdiction, their procedure, and the right of appeal from the sentences of such tribunal to the High Court. That chapter has not yet come into, force. Sub-section (8) of Section 1 of the Act says: This section shall come into force at once, and the remaining provisions of this Act shall come into force in such areas and on such date or dates as the Central Government may, by notification in the official Gazette, appoint.