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Case: 1. Kedar Nath Bajoria, 2. Hari Ram Vaid Vs The State of West Bengal. Supreme Court (India)

Judgment Cited in 10 Precedent Map Related
Vincent
JudgesPatanjali Sastri, C.J., Jagannadha Das, Mukherjea, Ghulam Hasan, and Vivian Bose, JJ.
IssueConstitution of India - Articles 14 and 20; West Bengal Criminal Law Amendment (Special Courts) Act, 1949 - Section 4(1); Indian Penal Code, 1860 - Sections 120-B, 414, 417 and 420; Criminal Procedure Code, 1898 - Sections 260 and 342
CitationAIR 1953 SC 404, 1953 CriLJ 1621, [1954] 1 SCR 30
Judgement DateMay 22, 1953
CourtSupreme Court (India)

Judgment:

Patanjali Sastri, C.J.

  1. These are connected appeals by special leave from the order of the High Court of Judicature at Calcutta dated January 6, 1951, confirming the conviction of the appellants and the sentences imposed on them by the Special Court, Alipur, Calcutta, constituted under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949.

  2. The first appellant was at all material times the proprietor of the firm of Kedar Nath Mohanlal, Managing Agents of Shiva Jute Press Ltd., an incorporated company having a number of godowns at Cossipore in West Bengal, and the second appellant was the Area Land Hiring and Disposals Officer in the service of the Government of India. Some of the godowns belonging to the company were requisitioned by the Government for military purposes in 1943 and were released in December, 1945. The appellants, along with two others who were given the benefit of doubt and acquitted, were charged, with having conspired to cheat, and having cheated, the Government by inducing their officers to pay Rs. 47,550 to the first appellant on behalf of the company as compensation for alleged damage to the godowns on the basis of an assessment made by the second appellant which was false to the knowledge of both the appellants. It was also alleged that the second appellant recommended the payment of Rs. 1,28,125 to the company for damage caused to the jute stored in the godowns by leakage of rain-water through cracks in the roof which the military authority neglected to repair. This claim, however, had not been paid as the second appellant's recommendation was not accepted by the higher authorities who referred it to the Claims Commission for investigation. The appellants were accordingly charged with having committed offences under sections 120B and 420 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act (Act No. II of 1947).

  3. The West Bengal Criminal Law Amendment Act (hereinafter referred to as "the Act") came into force on June 23, 1949 and, by notification No. 5141-J dated September 16, 1949, the West Bengal Government allotted the case against the appellants and two others to the Special Court constituted by the Government under section 3 of the Act. The trial commenced on January 3, 1950 and nine prosecution witnesses were examined in chief before January 26, 1950 when the Constitution came into force. After some more witnesses were examined, the charges were framed on February 27, 1950. On June 9, 1950, prosecution evidence was closed and the appellants were examined under section 342 of the Criminal Procedure Code. On August 29, 1950, the Special Judge delivered judgment convicting the appellants on all the counts and sentenced them to varying terms of rigorous imprisonment and fine. In addition to the sentences imposed under the ordinary law the first appellant was fined Rs. 50,000 including the sum of Rs. 47,550 received by him, as required by section 9(1) of the Act.

  4. Though the constitutionality of the Act was not challenged in the High Court, Mr. Chatterjee on behalf of the appellants made it the principal issue in these appeals. He contended that the Special Court had no jurisdiction to try and convict the appellants inasmuch as section 4 of the Act, under which the case was allotted by the State Government to the Special Court offended against article 14 of the Constitution in that it enabled the Government to single out a particular case for reference to the Special Court for trial by the special procedure which denied to persons tried under it certain material advantages enjoyed by those tried under the ordinary procedure. Learned counsel placed strong reliance on the majority decision of this court in Anwar Ali Sarkar's case ([1952] S.C.R. 284.) and, indeed, claimed that decision ruled the present case. He further urged that the offence under section 5(2) of the Prevention of Corruption Act was triable exclusively by the court of session under item (1) of the last heading of Schedule II to the Criminal Procedure Code as the offence is made punishable under that section with imprisonment for seven years, with the result that the trial which was held in Calcutta would have been by jury in the High Court had the ordinary procedure been followed. Though the trial by the Special Court began before the commencement of the Constitution, its continuance without a jury after the Constitution came into force vitiated the whole trial, as it would not be possible to introduce the jury at any subsequent stage. In support of this view he relied on certain observations in the majority judgment of this court in Qasim Razvi's case ([1953] S.C.R. 589.). These observations were made by way of explaining the majority decision in Lachmandas Kewalram Ahuja's case ([1952] S.C.R. 710.) where it was held that proceedings taken prior to the commencement of the Constitution before a Special Court constituted under section 12 of the Bombay Public Safety Act, which was in the same terms as section 5(1) of the West Bengal Act, remained unaffected by the Constitution, though the special procedure provided by the Act was held to be discriminatory following Anwar Ali Sarkar's case ([1952] S.C.R. 284.). On the other hand, the Solicitor General on behalf of the Government maintained that the decision as clearly distinguishable and had no application to this case which is governed by the principles enunciated in the Saurashtra case ([1952] S.C.R. 435.). Before considering the constitutional validity of the Act in the light of the rulings referred to above, it is necessary to have a look at the provision of the Act in order to ascertain the underlying policy and purpose of the legislation, what evil it seeks to remedy and what means it employs to that end.

  5. The Act is entitled "an Act to provide for the more speedy trial and more effective punishment of certain offenses" and the preamble declares that "it is expedient to provide for the more speedy trial and more effective punishment of certain offenses" which are set out in the schedule annexed to the Act. The Provincial Government is empowered to constitute Special Courts of criminal jurisdiction for specified areas and to appoint persons with prescribed qualifications as Special Judge to preside over such courts (sections 2 and 3). Section 4 defines the jurisdiction of Special Judge and reads as follows:

    "4. (1) The Provincial Government may, from time to time by notification in the Official Gazette, allot cases for trial to a Special Judge, and may also from time to time by like notification transfer any case from one Special Judge to another and withdraw any case from the jurisdiction of a Special Judge or make such modifications in the description of case (whether in the name of the accused or in the charges preferred or in any other manner) as may be considered necessary.

    (2) The Special Judge shall have jurisdiction to try the cases for the time being allotted to him under sub-section (1) in respect of such of the charges for the offenses specified in the schedule as may be preferred against the several accused, and any such case which is at the commencement of this Act or at the time of such allotment pending before any Court or another Special Judge shall be deemed to be transferred to the Special Judge to whom it is allotted.

    (3) When trying any such case as aforesaid, a Special Judge may also try any offence whether or not specified in the schedule which is an offence with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial."

  6. Section 5 provides for the procedure and powers of Special Judges. They are empowered to take cognizance of offenses without the accused being committed to their court for trial and are required to follow the procedure prescribed by the Criminal Procedure Code for the trial warrant cases. The Special Judges may, for reasons to be recorded, 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 any trial for any purpose unless such adjournment is, in their opinion, necessary in the interests of justice. Except as aforesaid the provisions of the Code are made applicable so far as they are not inconsistent with the Act, and for the purposes of the said provisions the Special Court is to be deemed to be a court of session trying cases without a jury and without the aid of assessors. By section 6 the High Court is given all the powers conferred on a High Court by Chapters XXXI and XXXII of the Code as if the court of the Special Judge were a court of session. Section 7 bars the transfer of any case from a...

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