Judgment

PATANJALI SASTRI,, C.J.I.: I regret I am unable to agree with the reasoning and conclusion of my learned brother Das J. whose judgment I have had the advantage of reading.

2. The appellants were convicted and sentenced to death and varying terms of imprisonment by the Special Judge, Ahmedabad, on charges of murder and other offences under the Indian Penal; Code, the Arms Act and the Bombay Police Act. The Special Judge was appointed by a notification issued under the Bombay Security Measures Act, 1947, (hereinafter referred to as the impugned Act) and on August 6, 1949, the State Government, in exercise of the powers conferred by S. 12 of the impugned Act, directed the Special Judge to try the case of the appellants who were implicated in what was known as the Central Bank Robbery Case. Charges were framed on January 13, 1950, without any preliminary enquiry and committal by a Magistrate which had been dispensed with by the impugned Act, and seventeen witnesses for the prosecution were examined before January 26, 1950, when the Constitution came into force. The proceedings continued, and after the examination of sixty witnesses in all, ended in the conviction of the appellants on March 13, 1950.

3. Separate appeals were preferred by the present appellants to the High Court which, however, confirmed the conviction and sentence in each case. An objection that the trial was illegal as the impugned Act was void under Art. 13 (1) of the Constitution, read with Art. 14, was overruled on the ground that those provisions had no retrospective operation and did not affect proceedings already started in the Court of the Special Judge. The learned Judges followed the decision of a Special Bench of their own Court in IN RE KESHAV MADHAV MENON , 52 Bom L R 540, which has since been affirmed by this Court in KESHAV MADHAV MENON v. STATE OF BOMBAY , 1951 S C R 228.

4. It is urged on behalf of the appellants that the decision relied on by the High Court is distinguishable and that the present case is governed by the decision of this Court in STATE OF WEST BENGAL v. ANWAR ALI SARKAR , 1952 S C R 284, to the effect that S. 5 of the Bengal Act (which is in identical terms with S. 12 of the impugned Act) is discriminatory and void in so far, at any rate, as it empowers the State Government to direct "cases" to be tried by a Special Court under a special procedure. Accordingly, it was claimed that the Special Judge had no jurisdiction to try the appellants applying the special procedure prescribed by the impugned Act.

5. Granting, however, that S. 12 of the impugned Act must, in view of the decision in ANWAR ALI SARKAR S CASE , 1952 S C R 284, 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 238 trial, it does not seem to me to follow that the trial of the appellants, which had validly started before the Special Judge who had been duly empowered to try the case, is vitiated by reason of the Constitution subsequently coming into force. It is to be noted that the WEST BENGAL CASE , 1952 S C R 234, was argued on the basis that Art. 14 of the Constitution was applicable to the proceedings from their inception, although the notification directing the trial of some of the persons accused in that case was issued on the day before the commencement of the Constitution. The position here is different. The appellant s case was sent to the Special Judge for trial by notification dated 6th August 1949, and the Judge took cognizance of it, framed the charges & proceeded with the trial to a considerable extent before the commencement of the Constitution on 26th January 1950. There could be no question, therefore, of the appellants fundamental right under Art. 14 being infringed up to that point, as it has been held by this Court in KESHAVAN MADHAVA MENON S CASE , 1951 S C R 238, that the provisions of the Constitution relating to fundamental rights have no retrospective