JUDGMENT

Derbyshire, C.J. - This rule was issued upon the District Magistrate of Jessore to show cause why the conviction of the applicant and 14 other persons should not be set aside. The accused persons are all policemen and, according to the evidence, were directed to secure the person of a fellow policeman who was said to have become mentally deranged and instead of obeying orders they disobeyed them and behaved in a riotous manner. The District Magistrate, acting under powers conferred upon him by the Government of Bengal, directed a Special Magistrate, appointed under ordinance 2 of 1942, to try the case with the result that the Special Magistrate convicted the 15 applicants of offences under Sections 147, 149 and 832, Penal Code, and also under Rule 38(1)(a) and 5)/Rule 34 (6b)(c) of the Defence of India Rules, committing a prejudicial act. He passed no sentence in respect of the offences under the Penal Code, but as regards the offences under the Defence of India Rules he sentenced all the accused each to two years rigorous imprisonment. The proceedings were taken under ordinance 2 of 1942, Section 26 of which prohibits the interference by this Court with either the proceedings or the convictions. However, the convicted persons contend that the ordinance itself is ultra vires the law-making powers of the Governor-General and ask us to hold as such and, thereupon, to exercise our revision jurisdiction and set aside the convictions or, alternatively, to reduce the sentences.

2. The Magistrate was a First Class Magistrate specially designated as a Special Magistrate under the ordinance. The ordinance itself was made on 31st December 1941 and published in the Gazette of India on 2nd January 1942. It recites that whereas an emergency has arisen which makes it necessary to provide for the setting up of special criminal Courts, the Governor-General in the exercise of powers conferred upon Mm by Section 72, Government of India Act, 1915, as set out in Schedule 9, Government of India Act, 1935, makes and promulgates the ordinance. Section 1(2) states that the ordinance applies to the whole of British India : Sub-section (3) states that 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 Dr from the imminence of such an attack, in 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. Section 3 provides:

Courts of criminal jurisdiction may be constituted under this ordinance of the following classes, namely: (i) Special Judges; (ii) Speoial Magistrates; (iii) Summary Courts.

Section 4 provides:

The Provincial Government may appoint to be a Special Judge for such area as it may think fit any person who has acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898 (hereinafter in this ordinance referred to as the Code).

Section 5 provides:

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, or as may be transferred to him for trial under the provisions of Section 25A.

Section 6 provides:

A Special Judge may take cognizance of offences without the accused being committed to his Court for trial, and, in trying accused persons, shall follow the procedure prescribed by the Code for the trial of warrant oases by Magistrates : Provided that a Special Judge shall ordinarily record a memorandum only of the substance of the evidence of each witness examined, may refuse to summon any witness if satisfied after examination of the accused that the evidence o