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HIGH COURT OF CALCUTTA
HARRIES, CHAKRABARTI, BANERJEE, S. R. DAS GUPTA
ANWAR ALI SARKAR - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Civil Revn. Petn. Case 1113 Of 1951
Decided On : AUGUST 28, 1951
The West Bengal Special Courts Act, 1950, which authorized the State Government to direct the trial of any case or cases by a Special Court, was challenged on the ground that it violated the equality before the law guaranteed by Article 14 of the Indian Constitution. The Court held that the Act was unconstitutional because it allowed the State Government to arbitrarily select cases for trial by a Special Court, without any rational basis for such selection. The Court also held that a notification issued by the State Government directing the trial of specific cases by a Special Court was invalid because it discriminated against the accused persons in those cases by denying them the benefits of the ordinary criminal procedure.
Fact of the Case:
The petitioners were tried by a Special Court appointed under the West Bengal Special Courts Act of 1950 (Act X of 1950). The Act was passed after the Constitution of India came into force. It authorized the State Government to constitute special courts of criminal jurisdiction for such areas and to sit at such places as may be specified in the notification and more than one Special Court may be constituted for the same area or to sit at the same place. The State Government was also empowered to appoint special judges to preside over such Special Courts and the classifications for such appointments were set out in the Act. The Act further provided that a Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct. The only exception was that no direction could be given in respect of a case pending before one of the ordinary criminal courts at the date this Act came into force. The Act also provided that the State Government may at any stage of the proceedings before a Special Court transfer a case to another Special Court and notwithstanding anything to the contrary contained in the Code of Criminal Procedure a Special Court to which a case is transferred shall not be bound to resummon or rehear any witnesses unless it is satisfied that such a course is necessary in the interests of justice. Further a Special Court shall not be bound to adjourn a trial for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice. The Act also empowered the Special Court to refuse to summon witnesses and by Section 13 of the Act if in any trial by a Special Court it is found that the accused person has committed any offence, it can convict such person of such offence and pass an appropriate sentence.
Finding of the Court:
The Court held that the Act was unconstitutional because it allowed the State Government to arbitrarily select cases for trial by a Special Court, without any rational basis for such selection. The Court also held that a notification issued by the State Government directing the trial of specific cases by a Special Court was invalid because it discriminated against the accused persons in those cases by denying them the benefits of the ordinary criminal procedure.
Issues: 1. Whether the West Bengal Special Courts Act of 1950 violated the equality before the law guaranteed by Article 14 of the Indian Constitution? 2. Whether a notification issued by the State Government directing the trial of specific cases by a Special Court was invalid?
Ratio Decidendi: 1. The Court held that the Act was unconstitutional because it allowed the State Government to arbitrarily select cases for trial by a Special Court, without any rational basis for such selection. The Court observed that the Act did not lay down any principle on which selection of "offences" or "classes of offences" or "cases" or "classes of cases" should be made by the State Government. All that the Act had done was to leave in the hands of the State Government a power to discriminate, without laying down any principle on which such discrimination is to be made. The Court further observed that the Act in question gave to the State Government power to decide, without laying down any principle whatsoever on which such decision is to be made, as to what particular cases, or classes of cases or offences or classes of offences are to be tried by the Special Court. Such an Act in the opinion of the Court must be held to be void. 2. The Court held that a notification issued by the State Government directing the trial of specific cases by a Special Court was invalid because it discriminated against the accused persons in those cases by denying them the benefits of the ordinary criminal procedure. The Court observed that the notification in question had directed the trial of individual cases and not a "class" or "classes of cases". The Court further observed that there was no indication that they had been so directed to be tried by the Special Court because they formed a class. A classification is always made on some common basis or principle applicable to all the members thereof. No such basis or principle had been indicated in the said notification for which these cases can be said to form a class and for which they had been directed to be tried by the Special Court.
Final Decision: The Court held that the West Bengal Special Courts Act of 1950 was unconstitutional and a notification issued by the State Government directing the trial of specific cases by a Special Court was invalid.
( 1 ) THESE are two petitions for the issue of writs of certiorari to quash proceedings which have taken place and which are taking place before a Special Judge at Alipore under the West Bengal Special Courts Act of 1950. The two petitions came before Bose J. for hearing. In the view of the learned Judge the petitions raised points of great importance and difficulty and he accordingly referred them to the Chief Justice for decision by a larger Bench. This Bench of five Judges has been constituted to hear and decide the petitions.
( 2 ) CIVIL Rule No. 942 of 1951 has been preferred by one Anwar Ali Sarkar who with forty nine other persons was tried by a Special Judge appointed under the West Bengal Special Courts Act of 1950 (Act X of 1950)upon charges of murder, conspiracy to murder to commit grievous hurt with deadly weapons, and to commit mischief. There were also charges under the Explosive Substances Act and a charge under Section 20. 1 of the Indian Penal Code in respect of causing the disapperance of evidence of murder.
( 3 ) THE charges arose out of an incident which occurred at the factory of Messrs. Jessop and Co. Ltd. at Dum Dum on February 26, 1949. In the course of that incident it is said that Anwarali Sarkar and his forty nine co-accused attacked the officials of Messrs. Jessop and Company's factory, battered them to death and threw their corpses into blazing furnaces. During the course of investigation of these offences Anwarali. Sarkar and his co-accused were arrested and a case was registered against them at the Dum Dum Police Station, being Case No. 26 of February 26, 1949.
( 4 ) ON August 17, 1949 an Ordinance known as the West Bengal Special Courts Ordinance was promulgated under Section 88 of the Government of India Act and it would appear that the petitioner and his co-accused or most of them were arrested after the promulgation of this Ordinance.
( 5 ) ON October 28, 1949 the Government under the provisions of the West Bengal Special Courts Ordinance appointed Sri S. N. Guha Roy, then Sessions Judge of Alipore, as a Special Judge with powers to try cases under the said Ordinance. This notification was duly published in the official gazette on November 3, 1949.
( 6 ) ON January 25, 1950 the Government issued a further notification under the said Ordinance directing that the case of Anwarali Sarkar and his forty nine co-accused be tried by Sri S. N. Guha Roy as Special Judge under the terms of that Ordinance. On January 26 1950, namely, the day upon which the Constitution of India came into force, this notification was published in the official gazette.
( 7 ) THIS Ordinance was superseded on March 15, 1950 by the West Bengal Special Courts Act of 1950 which received the assent of the President of the Republic on that date. The provisions of this Act were similar to those of the Ordinance and these provisions will be discussed in detail hereafter.
( 8 ) ON April 2, 1950, a formal complaint was made by an Additional Superintendent of Police, one Sri J. N. Gupta to the Special Judge Sri S. N. Guha Roy. The learned Judge took cognizance of the cases and in due course Anwarali Sarkar and his co-accused were tried on the charges which I have already mentioned and on March 31, 1950 they were convicted and sentenced, the sentences varying with the gravity of their respective offences. A number were sentenced to transportation for life and a Rule has since been issued by this Court upon a number of the ac-cussed at the instance of the Government of the State of West Bengal to show cause why the sentences of transportation for life should not be enhanced to sentences of death.
( 9 ) ON May 1, 1951 Bose J. issued a Rule upon the Government of the State of West Bengal to show cause why a writ of certiorari should not be issued to quash these proceedings, convictions and sentences. Bose J. as I have said referred this case together with the connected case for decision by a larger Bench.
( 10 )
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