EMPEROR Vs. KANTILAL MANGALDAS

JUDGEMENT

(1.) The question that arises in this case is, whether Ordinance XIX of 1943 is a valid Ordinance. It was promulgated on June 5, 1943, to repeal Ordinance II of 1942, which established Special Criminal Courts in India for trial of certain classes of offences. Ordinance II of 1942 was held to be intra vires by the Bombay High Court in Emperor V/s. Shreekant Pandurang Ketkar , though the Calcutta High Court arrived at an opposite conclusion in Banoari Lal V/s. Emperor as regards Secs.5, 10, 14 and 16. Eventually the Federal Court of India held in Emperor V/s. Banoari Lal that Secs.5, 10 and 16 of the Ordinance were ultra vires. This decision was given on June 4, 1943. The Governor General deliberated overnight and promulgated Ordinance XIX of 1943 the next day. The new Ordinance accepted the decision of the Federal Court in so far as it repealed Ordinance II of 1942. It also proceeded to terminate pending proceedings; but it went further to continue sentences passed under the repealed Ordinance, though it made provision for appeal or revision from those sentences. The effect of the Ordinance is that from June 5, 1943, Ordinance II of 1942 ceased to be operative, all pending proceedings came to an end, persons who had acted under the repealed Ordinance were indemnified against acts done by them. Section 3 of the Ordinance continued the sentences already pronounced, and provision was made for appeals to the High Courts and Sessions Court.

(2.) The history of the emergency legislation in India up to October 26, 1942, is set out at pp. 324 to 326 of Vol. 45 of the Bombay Law Reporter. As held in that case the Bombay High Court was of opinion that Ordinance II of 1942 was valid, a view which was subsequently overruled by the Federal Court on the ground that it was a delegation of authority to prosecute at the sweet will of an executive authority.

(3.) The preamble to Ordinance XIX of 1943 says : " Whereas an emergency has arisen which makes it necessary to repeal the Special Criminal Courts Ordinance, 1942 (II of 1942)." That emergency is the decision of the Federal Court in Emperor V/s. Benoari Lal. The Ordinance is quite harmless so far as its Secs.1 and 2 are concerned. The vice of the Ordinance lies in its Section 3. The marginal note to the section says : " Confirmation and continuance, subject to appeal, of sentences." To bring the section into effect it must be assumed that there was a notional trial before a notional Judge and in a manner competent under the Code of Criminal Procedure. The whole machinery which imposed the sentence has been swept away, and yet the sentence is to have effect as if it was passed by a Court of competent jurisdiction. Under Sub-section (2) of Section 3 the word "sentence" is used in a variety of different meanings. It cannot be assumed that the drafts-man of the section was not aware that no appeal was provided in the first Ordinance. The sub-section provides appeals against sentences, and not against convictions. There can be no sentence continuing, when the tribunal which imposed the sentence is found incompetent to pronounce it. The word " conviction " is nowhere to be found in the section. The words " conviction " and "sentence" have different legal connotations. A party may file an appeal against a " sentence " only if it is wrong or excessive. " Conviction " means that the accused is guilty: " sentence" is the order consequential to the conviction. Even the Criminal Procedure Code has distinguished between conviction and sentence : see Secs.407, 408, 411. The distinction between " conviction " and " sentence" is much the same as that Between " judgment" and "decree" under the Civil Procedure Code, 1908. The term "sentence" is used in Section 3(1) as meaning the process of suffering penalty. In Section 3(2) it is used in quite a different sense. If the word "sentence" in the section means conviction, then the Ordinance is an attempt to get over the judgment of the Federal Court. It is not open to the Governor General to enact that the conviction and sentence pronounced illegal by the Federal Court are valid.