Back
SUPREME COURT OF INDIA
16th May, 1952.
FAZL ALI AND BOSE JJ.
Gur Narain Das and another, Appellants
Versus
Gur Tahal Das and others, Respondents.
Civil Appeal No. 104 of 1950.
Advocates appeared
Shri Gurbachan Singh, Senior Advocate (Shri Manohar Lal Sachdev, Advocate, with him), instructed by Shri Naunit Lal Agent, for Appellants; Shri S. B. Jathar, Advocate, instructed by Shri R. N. Sachthey, Agent, for legal representatives of Respondent No. 4, Mahant Kuldip Das.
According to the prosecution story, an the morning of May, 26, 1949, in Ahmedabad City, the two appellants with another companion, after injuring by gunshot, the driver and a peon of the Central Bank of India, forcibly removed a motor van belonging to the Bank in which a large sum of money was being carried from its head office to its branch office. After abandoning the motor van at a distance of about three fourth of a mile, the three gun-men forcibly took possession of the bicycles of same persons who were riding the same and continued their escape. In their flight, they fired at and injured several people. Eventually two appellants were arrested by the police, and were tried by a special judge appointed under the Bombay Public Security Measures Act, 1947, and were sentenced to death and other terms of imprisonment. The appeals were against the judgment of a Division Bench of the Bombay High Court dismissing the appeals of the two appellants. The validity of the Act was challenged before the Supreme Court.
Held, (By a majority of four judges, Patanjali Sastri contra) that the Bombay Act was ultra vires the Constitution and it was directed that the appellants be tried according to law. Mr. Justice Das, who delivered the majority judgment, observed :
"Besides providing for enhanced punishment and whipping the Act eliminates the committal proceedings. Section 13(1) permits the Special Judge to record only a memorandum of the evidence, confers an him a larger power to refuse to summon a defence witness than what is conferred an a Court by section 257(1), Cr, P.C. and also deprives accused of his right to apply far a transfer at fast revision. That these departures from the ordinary law cause prejudice to persons subjected to the procedure prescribed by the Act cannot far a moment be denied.
"This Court has, by its decisions in the State of West Bengal v. Anwar Ali Sarkar [(1952) S.G.R. 284] and in Kathi Riming Rawat v. The State of Saurashtra [(1952) S.C.R. 435 ], recognized that Art. 14 condemns discrimination not only by a substantive law but also. by a law of procedure and that the procedure prescribed by the corresponding provisions in the West Bengal (Special Courts) Act and the Saurashtra Ordinance which introduced similar departures from the ordinary law of procedure constituted a discrimination against person tried by the Special Judge according to procedure prescribed by these pieces of legislation and finally that, in any event, section 5(1) of the West Bengal Act and Section 11 of the Saurashtra Ordinance, bath of which corresponded to section 12 of the Bombay Public Security Measures Act, in so far as they authorized the Government to direct specific and particular cases to be tried by the Special Judge, were constitutional and void. In view of the departures from the ordinary law brought about by the Bombay Public Safety Measures Act, 1947, which are noted above, it cannot but he held, an a parity of reasoning, that at any rate Section 12 of the Act, in so or as it authorizes the Government to direct particular cases to be tried by a Special Judge, is also unconstitutional."
As regards the fact that the proceedings in the case started before the Constitution came into farce, it was observed:
"The Constitution has no retrospective operation to invalidate that part of the proceedings that has already been gone through but the Constitution does not permit the special procedure to stand in the way of the exercise or enjoyment of post-constitutional rights and must, therefore, strike down the discriminatory procedure if it is sought to be adopted after the Constitution came into operation." In the absence of a rational basis of classification, there can be no justification, after the advent of the Constitution, his Lordship observed, for depriving the appellants of the right to move the Court for transfer or for revision or to obtain process for the attendance of defence witnesses or of having the evidence of witnesses recorded a~ in an ordinary trial which was available to other persons accused of similar offences and prosecuted according to the ordinary procedure laid down in the Code of Criminal Procedure. It was, therefore, clear that in this case the discrimination continued after the Constitution came into force, and such continuation of the application of the discriminatory procedure to their cases after the date of the Constitution constituted a breach of their fundamental right guaranteed by Art. 14 and, being inconsistent with the provisions of that Article, the special procedure became void under Art. 13 and, as there was no vested right or liability in matters of procedure, the appellants were entitled to be tried according to the ordinary procedure after the date of the Constitution.
Per Patanjali Sastri; C.J. (contra): In his dissenting judgment, the Chief Justice said: "Granting, however, that S. 12 of the impugned Act must, in view of the decision in Anwar Ali Sarkars Case, be held to be discriminatory and void in so far as it empowers the State Government to refer individual cases to a Special Judge for trial, it does not seem to me to follow that the trial of the appellants which had validity started before the Special Judge who had been duly empowered to try the case, is vitiated by reason of the Constitution subsequently corning into force."
His Lordship found it difficult to accept the principle that the jurisdiction of the Special Judge, validity created and exercised over the appellants case, could cease to continue on and after January 26, 1950. According to the appellants contention, the special procedure prescribed by the impugned Act became discriminatory and void after January 26, 1950 and, therefore, inapplicable to what remained of their trial. But, could this Circumstance affect the competence of the Special Judge to try their case of which he had validly taken cognizance?
His Lordship concluded:1 am unable to regard the procedural variations in the recording of evidence and the summoning of witnesses so serious as to amount to a denial of the equal protection of the laws within the meaning of Art. 14. Even if the appellants were to be tried under the normal procedure of the Code after January 26, 1950, the omission to record the evidence in full and the refusal to summon a witness in the circumstances mentioned in section 13 may well be regarded as mere irregularities curable under section 537 Cr. P.C."- Concurrent findings.
Held; "It was contended before us on behalf of the first appellant that the finding of the Courts below that the parties were Sudras was not correct and should be set aside. This contention must however fail, since we find no good reason for departing from the well-establised practice of this court of not disturbing concurrent findings of the trial court and the first appellate court. In the present case, the finding that the parties are Sudras is largely based on the oral evidence, and the learned Judges of the High Court in arriving at their conclusion have not over-looked the tests which have been laid down in a series of authoritative decisions for determining the question whether a person belongs to the regenerate community or to the Sudra community". (per Fazl Ali J.).
Judgment
FAZL ALI J. : This appeal arises out of a suit for partition which was dismissed by the trial Court but was decreed by the High Court of Patna on appeal. The material facts of the case are briefly as follows:
2. One Rambilas Das had 2 sons, Budparkash Das and Nandkishore Das. Nandkishore Das had several sons, the plaintiff, Gurtahl Das being one of his illegitimate sons. The present suit was brought by Gurtahl Das against 4 persons, namely, Gurnarayan Das and Jai Narayan, Das, sons of Nandkishore Das; Shibtah Das, who was alleged to be one of the illegitimate sons of Nandkishore Das; and Mst. Rambholi Kuer, wife of Nandkishore Das. Another person, Kuldip Das, who was the daughter s son of Nandkishore s brother Budparkash Das, intervened in the suit after its institution and was impleaded as the fifth defendant. After the death of the second defendant, Jai Narayan Das, his wife, Surat Kuer, was brought on record.
3. The plaintiff s case was that Budparkash Das and Nandkishore Das formed a joint Hindu family, and that Budparkash Das died without any male issue in a state of jointness with his brother, Nandkishore, with the result that the entire joint family property devolved on him. Subsequently disputes arose regarding the management and enjoyment of the properties among the plaintiff and the defendants, which compelled the plaintiff to institute the present suit for partition. The plaintiff alleged that the parties were Sudras and belonged to the Nanak Shai sect of Fakirs, and that he and the third defendant, Shibtahi Das, were dasiputras of Nandkishore Das by a concubine, and Jai Narayan Das and Gurnarayan Das were also dasiputras of Nandkishore by another concubine.
4. The suit was contested mainly by the first defendant, Gurnarayan, Das, and Mst. Surat Kuer, on the following pleas: firstly that the suit was not maintainable as a suit for partition, because the plaintiff was never in possession of the properties of which he claimed partition, secondly that the family of the defendants were not Sudras but Dwijas and an illegitimate son could not sue for partition, thirdly that the defendants did not form a joint Hindu family with the plaintiff and Shibtahi Das, fourthly that Mst. Rambholi Kuer was not the widow of Nanaksaran Das, and fifthly that the plaintiff and Shibtahl Das were not sons of Nandkishore Das.
The case of Mst. Rambholi Kuer was that the parties were Dwijas and not Sudras, and defendant No. 5, Kuldip Das pleaded to the same effect and further alleged that Budparkash Das was separate from Nandkishore Das, that although they did not divide the properties by metes and bounds, they used to divide the produce half and half, and that he was in possession of his share of the properties as the daughter s son of Budparkash Das and they could not be made the subject of partition. Shibtahl Das supported the claim of the plaintiff.
5. The trial Court dismissed the suit, holding, among other things. (1) that the plaintiff not being in joint possession of any of the properties the suit for partition was not maintainable, (2) that the parties were Sudras, (3) that Budparkash Das and Nandkishore Das were joint and not separate. (4) that the plaintiff had no cause of action, and (5) that Shibtahl Das had not proved that he was the son of Nandkishore. Against the decision of the trial Court, the plaintiff preferred an appeal to the High Court at Patna, and Kuldip Das filed a cross-objection contesting the finding that Budparkash was joint with his brother. Nandkishore.
The High Court reversed the decision of the trial Court and held (1) that the parties were Sudras and not Dwijas, (2) that Budparkash died in a state of separation from his brother Nadkishore and (3) that no suit for declaration of title was necessary and the plaintiff s failure to pay sufficient court-fee should not stand in the way of suitable relief being granted to him. Both the High Court and the trial Court found that defendants Nos. 1 and 2, Gurnarayan
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
