EMPEROR Vs. SHREEKANT PANDURANG KETKAR

JUDGEMENT

(1.) The first application (No. 431 of 1942) raises questions, first, as to the validity of the Special Criminal Courts Ordinance (II of 1942), and, secondly, as to the applicability of the Ordinance if valid to the case of the petitioners. Cases raising similar points have come before the High Courts of Allahabad, Patna and Nagpur, and we have considered the judgments delivered in those cases, either as reported in the All India Reporter or in manuscript, as the cases have not yet found their way into the official reports.

(2.) The facts in this case are that the petitioners were arrested on September 6, 1942, and on October 5 a charge-sheet was placed against their names; and, some of the charges being exclusively triable by a Court of Session, on October 31, the Magistrate committed the accused for trial in the Court of the Sessions Judge of Thana, where cases are triable with a jury. On December 7 the Government of Bombay made an order, under Section 5 of the Special Criminal Courts Ordinance, directing Mr. Honawar, who was the Assistant Judge of Thana and a Special Judge appointed under the Ordinance, to try the petitioners case, the order referring to the petitioners case by its number and by the names of the accused. The Ordinance had been applied to the Province of Bombay on October 26, that is five days before the committal order.

(3.) The Special Criminal Courts Ordinance (II of 1942) was promulgated by the Governor General under Section 72 in the Ninth Schedule of the Government of India Act, 1935, which Schedule incorporates various provisions of the Government of India Act, 1915, which were to apply until Federation was introduced, and Section 72 enables the Governor General in cases of emergency to make and promulgate Ordinances for the peace and good government of British India or any part thereof. Under the section the Ordinance was only to remain in force for six months, but that limitation has been removed for the present under an Act of the Imperial Parliament.