Judgment

Patanjali Sastri, C.J.I.- This appeal raises questions under art. 14 of the Constitution more or less similar to those dealt with by this Court in Criminal Appeal No. 297 of 1951, State of West Bengal v. Anwar Ali (A. I. R. 1952 S.C. 75) and it was heard in part along with that appeal but was adjourned to enable the respondent State to file an affidavit explaining the circumstances which led to the enactment of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 (No. 66 of 1949), hereinafter referred to as the impugned Ordinance.

2. As in the West Bengal Case (A. I. R. 1952 S. C. 15) the jurisdiction of the Special Court of Criminal Jurisdiction, which tried and convicted the appellant, was challenged on the ground that the impugned Ordinance, under which the Court was constituted, was discriminatory and void. The objection was overruled by the Special Judge as well as by the High Court of Saurashtra on appeal and the appellant now seeks a decision of this Court on the point.

3. The impugned Ordinance purports to amend the Saurashtra State Public Safety Messures Ordinance (No. 9 of 1948) which had been passed "to provide for public safety maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra", by the insertion of Ss. 7 to 18 which deal with the establishment of special Courts of criminal jurisdiction in certain areas to try certain classes of offences in accordance with a simplified and shortened procedure. Section 9 empowers the State by notification to constitute special Courts for such areas as may be specified in the notification and S. 10 provides for appointment of special Judges to preside over such Courts. Section 11 enacts that the Special Judge shall try "such offences or classes of offences or such cases or classes of cases as the Government may by general or special order in writing direct". Then follow provisions prescribing the procedure applicable to the trial of such offences. The only variations in such procedure from the normal procedure in criminal trials in the State consist of the abolition of trial by jury or with the aid of assessors and the elimination of the inquiry before commitment in sessions cases. Even under the normal procedure, trial by jury is not compulsory unless the Government so directs (Ss. 268 and 269 (1)). While assessors are not really members of the Court and their opinion is not binding on the judge with whom the responsibility for the decision rests. Nor can the commitment proceeding in a sessions case be said to be an essential requirement of a fair and impartial trial, though its dispensation may involve the deprivation of certain advantages which an accused person may otherwise enjoy. Thus the variations from the normal procedure are by no means calculated to imperil the chances of a fair and impartial trial.

4. In exercise of the power conferred by Ss. 9, 10 and 11, the Government issued the notification No. H/35/5-C dated 9/11th February 1950 directing that a Special Court shall be constituted for certain special areas and that it shall try certain specified offences which included offences under Ss. 302, 307 and 392 read with S. 34, Penal Code (as adopted and applied to the State of Saurashtra) for which the appellant was convicted and sentenced.

5. It is contended on behalf of the appellant that S. 11 and the notification referred to above are discriminatory in that the offences alleged to have been committed by the appellant within the specified areas are required to be tired by the Special Judge under the special procedure, while any person committing the same offences outside those areas would be tried by the ordinary Courts under the ordinary procedure. It is also urged that Ss. 9 and 11 by empowering the State Government to establish a special Court and to direct it to try under a special procedure such offences as may be notified by the Government, in effect, authorises the Government to amend S. 5