Judgement

Appeal (No. 103 of 1945) by special leave, from an order of the High Court (August 24, 1943) which directed that the convictions and sentences passed on the appellants by Mr. S. Chaudhury, acting as a special magistrate under the Special Criminal Courts Ordinance, 1942, be set aside, and that the appellants be retried in the district of Hooghly.

The following facts are taken from the judgment of the Judicial Committee. In January, 1943, the accused were tried on a charge of dacoity under s. 395 of the Indian Penal Code by Mr. Chaudhury acting as a special magistrate under the Special Criminal Courts Ordinance, 1942. On January 19, 1943, they were acquitted on the charge under s. 395, but were convicted under s. 403 of the offence of misappropriation and sentenced to pay a fine of Rs.50 each. Subsequently, the High Court at Calcutta, of its own motion, called for the record of the case, and on August 24, 1943, a bench consisting of Derbyshire C.J., Khundkar and Lodge JJ., set aside the convictions and sentences passed on the appellants and ordered that they be retried in the district of Hooghly. The ground on which that order was made was that in the view of the High Court there had been improper interference by the executive authority with the course of justice.

At the date when the High Court made their order the Ordinance of 1942 had been declared ultra vires by the Federal Court in King-Emperor v. Benoari Lai Sarma (I. L. R. [ 1943] 2 C. 1.) and had been repealed on the day following that decision by s. 2 of Ordinance XIX. of 1943, which, by s. 3, provided that " Any " sentence passed by a Special Magistrate .... in exercise " of jurisdiction conferred or purporting to have been conferred " by or under the said Ordinance [of 1942] shall have effect, " and subject to the succeeding provisions of this section, shall " continue to have effect, as if the trial at which it was passed " had been held in accordance with the Code of Criminal " Procedure .... by .... a Magistrate of the first class " . . . . exercising competent jurisdiction under the said " Code/

The question in this appeal was whether the High Court had jurisdiction to make the order it did make.

1946. June 26. Pringle K.C. and T. B. W. Ramsay for the appellants. The first point is whether the High Court had jurisdiction to pass the order in question. The convictions and sentences passed on the appellants were good in law at the time they were passed and remained so until changed by s. 3 of the Ordinance of 1943. Right of appeal was taken away by the Ordinance of 1942 and was not restored by that of 1943, the most important section of which is s. 3, which provides for confirmation and continuance, subject to appeal, “of sentences." After the Ordinance of 1942 had been declared ultra vires by the Federal Court in King-Emperor v. Benoari Lai Sarma (I. L. R. [ 1943] 2 C. 1.) it was desirable during the emergency then in existence that people sentenced under that Ordinance should be retained in detention, and the Ordinance of 1943 was passed to deal with that situation. The subject-matter of that Ordinance is " sentences," and the practical issue was detention. " Conviction " and " sentence " are different things. " Sentence " is used in the Ordinance of 1943 in its ordinary sense of " punishment imposed " and is so used in certain sections of the Code of Criminal Procedure, s. 401 of which, e.g., gives power to suspend or remit sentences, and in ss. 412, 413 and 414 the quantum of sentence determines whether there is an appeal. Section 415 of the Code is the only place therein where the word " sentence " is loosely used. The courts in India have differed in their view of the construction of s. 3 of the Ordinance of 1943 Sushil Kumar Bose v. The Emperor (( 1943) 47 Cal. W. N. 757.) ; Jailal Sahu v. King-Emperor (( 1943) I. L. R. 22 Pat. 565.) ; Vishindas Lachmandas v. King-Emperor (( 1944) A. I. R. vol. 31 (Sind) 1.), and Kantilal Mangaldas

v. King-Emperor (