Judgement

Appeal (No. 1 of 1944), by leave of the Federal Court of India, from a judgment of that court (June 4, 1943), which affirmed by a majority a judgment and order of the High Court at Calcutta (April 21, 1943), passed in the exercise of its criminal re visional jurisdiction. By their judgment the High Court, on the sole ground that certain provisions contained in the Special Criminal Courts Ordinance, No. II., of 1942, were ultra vires the Governor-General of India, set aside the convictions of the fifteen respondents to this appeal, all police constables, by the special magistrate at Jessore (being a special court constituted under the ordinance) on charges of, inter alia, rioting, assault on a police officer and committing prejudicial acts tending to cause disaffection in the police force. A sentence of two years rigorous imprisonment was imposed on each of them. The High Court ordered the respondents to be released and re-arrested and tried in the ordinary courts according to ordinary process of law.

The question for determination in this appeal was whether or not the Governor-General was empowered by s. 72 of the Government of India Act, 1935, as set out in sched. IX thereof, read with the India and Burma (Emergency Provisions) Act, 1940, to enact Ordinance No. II. of 1942.

By s. 72 of the Government of India Act, 1935, read with the India and Burma (Emergency Provisions) Act, 1940 "The Governor-General may, in cases of emergency, make and " promulgate ordinances for the peace and good government 14 of British India or any part thereof, and any ordinance so made shall....have the like force of law as an Act passed by the Indian legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian legislature, and may be controlled or superseded by any such Act.”

By the Special Criminal Courts Ordinance, No.II of 1942 s. 1, sub-s.3 —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 or from the imminence of such an attack, by 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."

"5. 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 . . . ."

"10. A Special Magistrate shall try such offences or classes of offences, or such cases or classes of cases other than offences or cases involving offences punishable under the Indian Penal Code with death, 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 . . . ."

"14. If any question arises whether, under any order made under s. 5 or s. 10, an offence is triable by a Special Judge or a Special Magistrate, the question shall be referred for decision to the authority which made the order and the decision of that authority shall be final."

"16.—(1) A Summary Court shall have power to try such offences or classes of offences, or such cases or classes of cases as the District Magistrate, or in a Presidency-town the Chief Presidency Magistrate, or a servant of the Crown authorized in this behalf by the District Magistrate or Chief Presidency Magistrate, may by general or special order direct

"Provided that no person shall be tried by a Summary Court for an offence which is punishable with imprisonment for a term exceeding two years, unless it is an offence specified in sub-s.1 of s.260 of the C