BENOARI LAL SARMA Vs. EMPEROR

JUDGEMENT

(1.) This rule was issued upon the District Magistrate of Jessore to show cause why the conviction of the applicant and 14 other persons should not be set aside. The accused persons are all policemen and, according to the evidence, were directed to secure the person of a fellow policeman who was said to have become mentally deranged and instead of obeying orders they disobeyed them and behaved in a riotous manner. The District Magistrate, acting under powers conferred upon him by the Government of Bengal, directed a Special Magistrate, appointed under ordinance 2 of 1942, to try the case with the result that the Special Magistrate convicted the 15 applicants of offences under Secs.147, 149 and 832, Penal Code, and also under Rule 38(1)(a) and 5)/Rule 34 (6b)(c) of the Defence of India Rules, committing a prejudicial act. He passed no sentence in respect of the offences under the Penal Code, but as regards the offences under the Defence of India Rules he sentenced all the accused each to two years rigorous imprisonment. The proceedings were taken under ordinance 2 of 1942, Section 26 of which prohibits the interference by this Court with either the proceedings or the convictions. However, the convicted persons contend that the ordinance itself is ultra vires the law-making powers of the Governor-General and ask us to hold as such and, thereupon, to exercise our revision jurisdiction and set aside the convictions or, alternatively, to reduce the sentences.

(2.) The Magistrate was a First Class Magistrate specially designated as a Special Magistrate under the ordinance. The ordinance itself was made on 31 December 1941 and published in the Gazette of India on 2 January, 1942. It recites that whereas an emergency has arisen which makes it necessary to provide for the setting up of special criminal Courts, the Governor-General in the exercise of powers conferred upon Mm by Section 72, Government of India Act, 1915, as set out in Schedule 9, Government of India Act, 1935, makes and promulgates the ordinance. Section 1(2) states that the ordinance applies to the whole of British India : Sub-section (3) states that it shall come into force in any province only if the Provincial Government being satisfied of the existence of an emergency arising from any disorder within the province or from a hostile attack on India or on a country neighbouring on India Dr from the imminence of such an attack, in notification in the official Gazette, declares it to be in force in the province, and shall cease to be in force when such notification is rescinded. Section 3 provides: Courts of criminal jurisdiction may be constituted under this ordinance of the following classes, namely: (i) Special Judges; (ii) Speoial Magistrates; (iii) Summary Courts. Section 4 provides: The Provincial Government may appoint to be a Special Judge for such area as it may think fit any person who has acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Criminal P. C., 1898 (hereinafter in this ordinance referred to as the Code). Section 5 provides: A Special Judge shall try such offences or classes of offences, or such cases or classes of cases 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, or as may be transferred to him for trial under the provisions of Section 25A. Section 6 provides: A Special Judge may take cognizance of offences without the accused being committed to his Court for trial, and, in trying accused persons, shall follow the procedure prescribed by the Code for the trial of warrant oases by Magistrates : Provided that a Special Judge shall ordinarily record a memorandum only of the substance of the evidence of each witness examined, may refuse to summon any witness if satisfied after examination of the accused that the evidence of such witness will not be material, and shall not be bound to adjourn the trial for any purpose unless such adjournment is, in his opinion, necessary in the interests of justice. (2) In matters not coming within the scope of Sub-section (1) the provisions of the Code, so far as they are not inconsistent with this Ordinance, shall apply ? to the proceedings of a Special Judge; and for the purposes of the said provisions the Court of the Special Judge shall be deemed to be a Court of Sessions.

(3.) Section 7 provides: "A Special Judge may pass any sentence authorised by law." Section 8 provides: If in any proceedings before a Special Judge - (a) a person convicted is sentenced to, death, or to transportation for life, or to imprisonment for a term of seven years or more, or (b) though no person is so sentenced, the Special Judge certifies that in his opinion the case has involved questions of special difficulty, whether of law or fact, or is one which for any other reason ought to be reviewed, the proceedings shall be submitted for review by a person nominated in this behalf by the Provincial Government, which person shall be chosen from the Judges of the High Court having jurisdiction over the area for which the Special Judge is appointed, and the decision of that person shall be final.