JUDGMENT

Derbyshire, C.J. - This is an application by Sushil Kumar Bose u/s 491, Criminal P.C., alleging that he has been illegally and improperly detained in jail custody and should be set at liberty or brought up before the Court to be dealt with according to law. The petitioner was on 26th January 1948, convicted by a Special Magistrate at Narail (in the district of Jessore) sitting under the provisions of the Special Criminal Courts Ordinance (ordinance 2 of 1942). The conviction was under Sections 120B and 411, Penal Code. Under the former charge, which was conspiracy to steal guns and cartridges, he was sentenced to rigorous imprisonment for four years, and under the latter charge, namely u/s 411, Penal Code, receiving stolen property i.e., a shot gun, he was sentenced to one year's rigorous imprisonment. The offences were alleged to have taken place on September 4/5, 1942, and were regarded as being in the nature of subversive activities. Other persons were originally tried along with the accused, some of them also being found guilty of conspiracy but sentenced to lesser terms of imprisonment or else bound over.

2. The applicant appealed to the Special Judge - a Sessions Judge - under the Ordinance at Jessore who, on 26th February 1943 dismissed his appeal and at the same time allowed the appeal of some of the others concerned with him in the matters complained of. The applicant had no further right of appeal under the Ordinance. On 21st April 1943, a Special Bench of this Court in criminal Revn. case No. 81 of Benoari Lal Sarma and Others Vs. Emperor, AIR 1943 Cal 285 decided that Sections 5, 10 and 16 of Ordinance No. 2 of 1942 which directed the trial of persons in the Special Courts by District Magistrates or by the Provincial Government or a servant of the Crown empowered in that behalf by the Provincial Government were invalid. Apart from these provisions, the Special Magistrate had no powers to try any person under the Ordinance. On 3rd May 1943, the petitioner applied for the present rule u/s 491, Criminal P.C. The Court directed the rule to issue and made it returnable on 17th May 1943. In the meantime the Government of Bengal announced their intention to appeal to the Federal Court against the decision of the High Court in Benoari Lal Sarma and Others Vs. Emperor, AIR 1943 Cal 285 and as a result no further steps were taken to deal with the rule pending the decision of the Federal Court. On 4th June 1943, the Federal Court by a majority affirmed the judgment of the Calcutta High Court in AIR 1943 36 (Federal Court) and dismissed the appeal. On 5th June 1943, the Governor-General made and promulgated Ordinance No. 19 of 1943 which repealed the Special Criminal Courts Ordinance 1942, that is Ordinance No. 2 of 1942 under which the applicant had been convicted and made provision "for certain matters in connexion with such repeal." Ordinance No. 19 of 1943 came into operation the same day, namely, 5th June 1943.

3. As there were a number of cases in which persons had been convicted in this Province by the Special Courts under Ordinance 2 of 1942 and as the repealing Ordinance (NO. 19 of 1943) needed careful consideration I directed that applications arising out of the two Ordinances should be considered together by this Special Bench. Consequently, learned Counsel for the applicant and learned Counsel for the Crown, namely, the Advocate-General of Bengal, have been heard in this matter upon the general effect of the repealing Ordinance 19 of 1943. At the same hearing learned Counsel appearing in the other cases arising under Ordinance 2 of 1942 and Ordinance 19 of 1943 have been heard. The repealing Ordinance (NO. 19 of 1943) is set out in full:

Whereas an emergency has arisen which makes it necessary to repeal the Special Criminal Courts Ordinance 1942 (2 of 1942), and to provide for certain matters in connexion with such repeal;

Now, therefore, in exercise of the powers conferred by Section 72, Government of India Ac