SUSHIL KUMAR BOSE Vs. EMPEROR

JUDGEMENT

(1.) This is an application by Sushil Kumar Bose under Section 491, Criminal P.C., alleging that he has been illegally and improperly detained in jail custody and should be set at liberty or brought up before the Court to be dealt with according to law. The petitioner was on 26th January 1948, convicted by a Special Magistrate at Narail (in the district of Jessore) sitting under the provisions of the Special Criminal Courts Ordinance (ordinance 2 of 1942). The conviction was under Secs.120B and 411, Indian Penal Code. Under the former charge, which was conspiracy to steal guns and cartridges, he was sentenced to rigorous imprisonment for four years, and under the latter charge, namely under Section 411, Indian Penal Code, receiving stolen property i.e., a shot gun, he was sentenced to one year's rigorous imprisonment. The offences were alleged to have taken place on September 4/5, 1942, and were regarded as being in the nature of subversive activities. Other persons were originally tried along with the accused, some of them also being found guilty of conspiracy but sentenced to lesser terms of imprisonment or else bound over.

(2.) The applicant appealed to the Special Judge - a Sessions Judge - under the Ordinance at Jessore who, on 26 February 1943 dismissed his appeal and at the same time allowed the appeal of some of the others concerned with him in the matters complained of. The applicant had no further right of appeal under the Ordinance. On 21 April 1943, a Special Bench of this Court in criminal Revn. case No. 81 of Benori Lall Sarma V/s. Emperor Reported in decided that Secs.5, 10 and 16 of Ordinance No. 2 of 1942 which directed the trial of persons in the Special Courts by District Magistrates or by the Provincial Government or a servant of the Crown empowered in that behalf by the Provincial Government were invalid. Apart from these provisions, the Special Magistrate had no powers to try any person under the Ordinance. On 3 May 1943, the petitioner applied for the present rule under Section 491, Criminal P.C. The Court directed the rule to issue and made it returnable on 17 May 1943. In the meantime the Government of Bengal announced their intention to appeal to the Federal Court against the decision of the High Court in Benoari Lall Sarma's case Benori Lall Sarma V/s. Emperor Reported in and as a result no further steps were taken to deal with the rule pending the decision of the Federal Court. On 4 June 1943, the Federal Court by a majority affirmed the judgment of the Calcutta High Court in Benoari Lall Sarma's case Reported in and dismissed the appeal. On 5 June 1943, the Governor-General made and promulgated Ordinance No. 19 of 1943 which repealed the Special Criminal Courts Ordinance 1942, that is Ordinance No. 2 of 1942 under which the applicant had been convicted and made provision "for certain matters in connexion with such repeal." Ordinance No. 19 of 1943 came into operation the same day, namely, 5 June 1943.

(3.) As there were a number of cases in which persons had been convicted in this Province by the Special Courts under Ordinance 2 of 1942 and as the repealing Ordinance (NO. 19 of 1943) needed careful consideration I directed that applications arising out of the two Ordinances should be considered together by this Special Bench. Consequently, learned Counsel for the applicant and learned Counsel for the Crown, namely, the Advocate-General of Bengal, have been heard in this matter upon the general effect of the repealing Ordinance 19 of 1943. At the same hearing learned Counsel appearing in the other cases arising under Ordinance 2 of 1942 and Ordinance 19 of 1943 have been heard. The repealing Ordinance (NO. 19 of 1943) is set out in full: Whereas an emergency has arisen which makes it necessary to repeal the Special Criminal Courts Ordinance 1942 (2 of 1942), and to provide for certain matters in connexion with such repeal; Now, therefore, in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9, Government of India Act, 1935 (26 Geo. V, c. 2), the Governor-General is pleased to make and promulgate the following Ordinance: 1. Short title and commencement. - (1) This Ordinance may be called the Special Criminal Courts (Repeal) Ordinance, 1943. (2) It shall come into force at once. 2. Repeal of Ordinance 2 of 1942. - The Special Criminal Courts Ordinance, 1942 (hereinafter referred to as the said Ordinance) is hereby repealed. 3. Confirmation and continuance, subject to appeal, of sentences : (1) Any sentence passed by a Special Judge, a Special Magistrate or a summary Court in exercise of jurisdiction conferred or purporting to have been conferred by or under the said Ordinance shall have effect, and subject to the succeeding provisions of this section, shall continue to have effect, as if the trial at which it was passed had been held in accordance with the Criminal P. C., 1898 (5 of 1898), by a Sessions Judge, an Assistant Sessions Judge or a Magistrate of the first class respectively, exercising competent jurisdiction under the said Code; (2) Notwithstanding anything contained in any other law, any such sentence as is referred to in Sub-section (1) shall, whether or not the proceedings in which the sentence was passed were submitted for review under Section 8, and whether or not the sentence was the subject of an appeal under Section 13 or Section 19 of the said Ordinance, be subject to such rights of appeal as would have accrued and to such powers of revision as would have been exercisable under the said Code if the sentence had at a trial so held been passed on the date of the commencement of this Ordinance; (3) Where any such sentence as aforesaid has been altered in the course of review or on appeal under the said Ordinance, the sentence as so altered shall for the purposes of this section be deemed to have been passed by the Court which passed the original sentence.