SANTOSH KUMAR BHATTACHARJEE Vs. EMPEROR

JUDGEMENT

(1.) On 2 November, 1942, Santosh Kumar Bhattacharjee was observed by policemen distributing certain leaflets in Calcutta. He was arrested and, according to the Magistrate who dealt with the matter, two kinds of leaflets were found on him one of which was not regarded as objectionable and the other was said to be a prejudicial report within the meaning of Rule 34, Defence of India Rules. The matter was reported to the police who placed it before Mr. J. Ahmad, Additional Chief Presidency Magistrate of Calcutta. Mr. Ahmad had been designated by the Government of Bengal as a Special Magistrate to exercise powers conferred on Special Magistrates by ordinance No. 2 of 1942. A chalan was issued under Secs.38(5), 38(1)(c), 39(6) and 39(1)(6), Defence of India Rules, and 5 December 1942 was fixed for the hearing of the charge, the accused being granted bail in the meantime. On 5 December 1942, the Magistrate made a note in his file that he took the case up as a Special Magistrate. He heard three prosecution witnesses, explained the charge and recorded the plea of the accused. Thereafter, the Magistrate adjourned the case to 12 December for cross-examination. On 12 December 1942, prosecution witnesses were cross-examined and certain defence witnesses were examined. The accused put in a written statement and after argument the Magistrate convicted the accused Santosh Kumar Bhattacharjee and sentenced him to undergo rigorous imprisonment for six months. The conviction was under Rule 39(6), Defence of India Rules, which provided a maximum punishment of imprisonment up to three years or a fine or both. The accused thereupon moved this Court under its revisional jurisdiction for a rule and obtained a rule upon the Chief Presidency Magistrate of Calcutta to show cause why the conviction and sentence referred to should not be set aside. It was intimated to the Court that the accused wished to raise a question as to whether Ordinance No. 2 of 1942 was ultra vires the powers of the Governor-General. Accordingly the matter is brought before this Bench on notice to the Government of Bengal and the learned Advocate-General has appeared on behalf of the Crown. The accused is represented by Mr. H.D. Bose.

(2.) Mr. Bose complained that the Ordinance is ultra vires and also contended that the Magistrate had not acted throughout in the exercise of his jurisdiction as a Special Magistrate, in that it was only when he sat on 5 December 1942, that he recorded that he took the matter up as a Special Magistrate. He contended that the Magistrate ought throughout from the commencement of his dealing with the case have acted as a Special Magistrate if the Ordinance which created Special Magistrates was valid. The Ordinance was made on 8lst December 1941, and published in the Gazette of India on 2 January, 1942. The Ordinance recites that a, special emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts and that in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9 to the Government of India Act, 1935, the Governor-General makes and promulgates the Ordinance which is called the Special Criminal Courts Ordinance, 1942. Section 1 provides that the ordinance shall come into force in any province only if the Provincial Government, being satisfied of the existence of any emergency arising from a hostile attack 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.

(3.) By Section 3 Courts of criminal jurisdiction are constituted as follows : (i) Special Judges; (ii) Special Magistrates; and (iii) Summary Courts. Secs.4, 5, 6 and 7 deal with the appointment, jurisdiction, procedure and powers of the Special Judges. Section 8 deals with the review of such convictions. Section 9 provides that a Presidency Magistrate or Magistrate of the first class who has exercised powers as such for a period of not less than two years may be invested with the powers of a Special Magistrate under the ordinance. Section 10 directs that a Special Magistrate shall try such offences or classes of offences, or such cases or classes of cases other than offences or cases involving offences punishable under the Penal Code with death, as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing direct. Section 11(1) provides that in the trial of any case a Special Magistrate shall follow the procedure laid down in Sub-section (1) of Section 6 for the trial of cases by a Special Judge. It may be noted here that Section 6(1) provides that a Special Judge in trying an accused person shall e follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates. Section 12 provides that a Special Magistrate may pass any sentence authorised by law, except a sentence of death or of transportation or imprisonment exceeding seven years. Section 13(1) provides that where a Special Magistrate passes a sentence of transportation or imprisonment for a term exceeding two years, an appeal shall lie to the Special Judge having jurisdiction in the area or if there is no Special Judge for the area, to the High Court in a Presidency town and elsewhere to the Court of Session. Other provisions follow, but the only ones with which we are concerned are Secs.26 and 27. Section 26 provides: Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this ordinance, be no appeal from any order or sentence of a Court constituted under this ordinance and save as aforesaid no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under Section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.