JAILAL SAHU Vs. EMPEROR

JUDGEMENT

(1.) These applications have been made by a number of persona sentenced under the powers purported to have been conferred by Ordinance 2 of 1942 (Special Criminal Courts Ordinance, 1942) who contend that notwithstanding Ordinance 19 of 1943 (Special Criminal Courts Repeal Ordinance, 1943) their detention is illegal and under Section 491, Criminal P.C., seek an order of this Court that they be set at liberty or brought to trial according to law. Ordinance 2 was promulgated on 2 January, 1942 by the Governor-General under Section 72 of Schedule 9 to the Government of India Act, 1935. The Ordinance, originally limited by Section 72 above to a period of six months, was extended by the India and Burma (Emergency Provisions) Act of 1940 and an Order in Council made thereunder and remained in force until repealed as hereinafter mentioned. The Ordinance was not complete in itself, it came into force ( Section 1(3)) in any Province only on notification by the Provincial Government; that notification could be given originally only on the existence of an emergency arising from a hostile attack on India but by ordinance 42 of 1942 promulgated on 19 August 1942 the power was extended to cover an emergency arising from any disorder in the Province. The Provincial Government brought the Ordinance into force in this Province by Notification No. 90CC dated 21 August 1942. Even that notification was not enough to set the Special Courts to work trying cases, as the Ordinance also left it ( Secs.5, 10 and 16) to the Provincial Government or a servant of the Crown empowered by the Provincial Government in that behalf to direct what cases or classes of cases the several Courts should have jurisdiction to try. Under these Secs.various orders have been made directing the trial of cases by the several Special Courts set up by the Ordinance. It is by these Courts and under these orders that the various applicants have been tried.

(2.) The validity of the Ordinance was soon after it came into force challenged in this and other High Courts. There is no need to discuss the cases in detail. This Court decided in Banwari Gope V/s. Emperor A.I.R. 1943 Pat. 18 that the Ordinance was not invalid and similar decisions were given by the Courts of Bombay See Emperor V/s. Shreekant A.I.R. 1943 Bom. 169 and Allahabad See Salig Ram v. Emperor . On 21 April 1943, however, the validity of the Ordinance having been challenged before it on grounds not taken before any other Court a Special Bench of the Calcutta High Court declared the Ordinance to be ineffective to confer jurisdiction on the Special Courts: Benoari Lal V/s. Emperor . That decision was carried on appeal to the Federal Court in Emperor V/s. Benoari Lal which on 4 June 1943 dismissed the appeal. The effect of that decision was that all the trials which had been held throughout India under the powers thought to have been conferred by Ordinance 2 were found to have been without jurisdiction. Consequently on the next day 5 June 1943 the Government of India published Ordinance 19 of 1943.

(3.) The question for determination in these cases is simply what, if any is the legal effect of Ordinance 19. On 12 July 1943 while this case was being argued the Calcutta High Court gave a decision See on a similar point but no report of the judgment except those in the daily press was available up to the time the argument was concluded and the Court did not think it necessary or desirable to postpone the decision in these cases on that account. Ordinance 19 begins with the following preamble: Whereas an emergency has arisen which makes it necessary to repeal the Special Criminal Courts Ordinance 1942 and to provide for certain matters in connexion with such repeal and then follow five enacting Secs.purporting to be made and promulgated by the Governor-General under Section 72 of Schedule 9, Government of India Act, 1935. Section 1 brings the Ordinance into effect at once: Section 2 repeals Ordinance 2 of 1942: Section 3 deals with cases the trial of which under ordinance 2 had been concluded: Section 4 declared all pending proceedings under ordinance 2 to be void and transferred them to the appropriate Magistrate for disposal according to the ordinary law: Section 5 granted an indemnity to servants of the Crown for acts done under powers purported to have been conferred by Ordinance 2. It is Section 3 which is material for the present cases and it reads as follows: 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 J 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.