The main legal point established in the judgment is the validity of the Ordinance No. 2 of 1942 and the limitations on appeal and revisional jurisdiction under the Defence of India Rules.

JUDGMENT

Derbyshire, C.J. - On 2nd November 1942, Santosh Kumar Bhattacharjee was observed by policemen distributing certain leaflets in Calcutta. He was arrested and, according to the Magistrate who dealt with the matter, two kinds of leaflets were found on him one of which was not regarded as objectionable and the other was said to be a prejudicial report within the meaning of Rule 34, Defence of India Rules. The matter was reported to the police who placed it before Mr. J. Ahmad, Additional Chief Presidency Magistrate of Calcutta. Mr. Ahmad had been designated by the Government of Bengal as a Special Magistrate to exercise powers conferred on Special Magistrates by ordinance No. 2 of 1942. A chalan was issued under Sections 38(5), 38(1)(c), 39(6) and 39(1)(6), Defence of India Rules, and 5th December 1942 was fixed for the hearing of the charge, the accused being granted bail in the meantime. On 5th December 1942, the Magistrate made a note in his file that he took the case up as a Special Magistrate. He heard three prosecution witnesses, explained the charge and recorded the plea of the accused. Thereafter, the Magistrate adjourned the case to 12th December for cross-examination. On 12th December 1942, prosecution witnesses were cross-examined and certain defence witnesses were examined. The accused put in a written statement and after argument the Magistrate convicted the accused Santosh Kumar Bhattacharjee and sentenced him to undergo rigorous imprisonment for six months. The conviction was under Rule 39(6), Defence of India Rules, which provided a maximum punishment of imprisonment up to three years or a fine or both. The accused thereupon moved this Court under its revisional jurisdiction for a rule and obtained a rule upon the Chief Presidency Magistrate of Calcutta to show cause why the conviction and sentence referred to should not be set aside. It was intimated to the Court that the accused wished to raise a question as to whether Ordinance No. 2 of 1942 was ultra vires the powers of the Governor-General. Accordingly the matter is brought before this Bench on notice to the Government of Bengal and the learned Advocate-General has appeared on behalf of the Crown. The accused is represented by Mr. H.D. Bose.

2. Mr. Bose complained that the Ordinance is ultra vires and also contended that the Magistrate had not acted throughout in the exercise of his jurisdiction as a Special Magistrate, in that it was only when he sat on 5th December 1942, that he recorded that he took the matter up as a Special Magistrate. He contended that the Magistrate ought throughout from the commencement of his dealing with the case have acted' as a Special Magistrate if the Ordinance which created Special Magistrates was valid. The Ordinance was made on 8lst December 1941, and published in the Gazette of India on 2nd January 1942. The Ordinance recites that a, special emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts and that in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9 to the Government of India Act, 1935, the Governor-General makes and promulgates the Ordinance which is called the Special Criminal Courts Ordinance, 1942. Section 1 provides that the ordinance shall come into force in any province only if the Provincial Government, being satisfied of the existence of any emergency arising from a hostile attack 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.

3. By Section 3 Courts of criminal jurisdiction are constituted as follows : (i) Special Judges; (ii) Special Magistrates; and (iii) Summary Courts. Sections 4, 5, 6 and 7 deal with the appointment, jurisdiction, procedure and powers of the Special Judges. Section 8 deals with the review of such convictions. Section 9 provides that a Presidency Magistrate or Magistrate of the first class who has exer