The Governor-General had the legislative power to validate sentences passed by Special Courts under Section 3 of Ordinance No. XIX of 1943, and had the authority to declare such sentences as valid trials under the Code of Criminal Procedure.

Alfred Henry Lionel Leach, C.J.

1. This is an application for the issue of a writ of certiorari for the quashing of the proceedings in Ordinance Case No. 1 of 1943 on the file of the Special Judge, Chingleput. The application involves the decision of the question whether Sub-section (1) of Section 3, of the Special Criminal Courts (Repeal) Ordinance, 1943 (Ordinance No. XIX of 1943) embodies a valid provision of law.

2. The petitioner and seven other persons were charged with having conspired to blow up the Uppanar Railway bridge near Shiyali and with having attempted to destroy the bridge. After their arrest the accused persons were brought before the Stationary Sub-Magistrate of Shiyali, who transferred the case to the Sub-Divisional Magistrate of Mayavaram. Under the provisions of the Special Criminal Courts Ordinance, 1942 (Ordinance No. II of 1942), the Sessions Judge of Nega-patam was appointed by the Government of Madras the Special Judge to try the case. Subsequently the Government of Madras transferred it to the file of the Special Judge for the Presidency Town of Madras. The Special Judge is the Sessions Judge of the Chingleput division. On the 28th April, 1943, by which date the trial had been almost concluded, the petitioner filed the present application. It came before the Court on the 29th April, the day before the Court rose for the summer vacation. At the request of counsel for the petitioner the hearing was adjourned until the 14th July. On the 14th July, the hearing was adjourned until the 2nd August, again at the request of counsel for the petitioner. The further adjournment was asked for because counsel wished to obtain copies of judgments delivered by the Calcutta High Court on the 12th July in a similar case. The judgments of the Calcutta High Court have not yet been published, but by the courtesy of the learned Chief Justice of that Court copies have been supplied for use in this case. After the decision of the Calcutta High Court the same question was raised in a case before the Patna High Court and the learned Chief Justice of that Court has likewise kindly supplied copies for use here.

3. On the 4th June, 1943, in The Emperor v. Benoari Lall Sarma the Federal Court, by a majority, held that Sections 5, 10 and 16 of Ordinance No. II of 1942 were invalid. This meant that the proceedings against the petitioner and his co-accused before the Special Judge were unlawful. When the case was before this Court on the 29th April, a stay of the trial was refused. Consequently the Special Judge continued the hearing and on the 11th May he delivered his judgment. He sentenced the petitioner under one charge to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000, with rigorous imprisonment for one year in default; and under another charge he sentenced him to undergo rigorous imprisonment for five years, the sentences to run concurrently. On the 5th June, the day after the Federal Court had decided that Sections 5, 10 and 16 of Ordinance No. II of 1942 were invalid, the Governor-General promulgated Ordinance No. XIX of 1943. It repeals Ordinance No. II of 1942, but Sub-section (1) of Section 3 purports to validate subject to rights of appeal and powers of revision conferred by Sub-section (2), sentences already passed by Special Courts constituted under the earlier Ordinance. The petitioner denies that Sub-section (1) has made the sentences valid. He maintains that the Governor-General had no power to enact this sub-section.

4. Section 3 of Ordinance No. II of 1942 provided that Courts of criminal jurisdiction might be constituted under the Ordinance of the following classes, namely, (1) Special Judges, (2) Special Magistrates and (3) Summary Courts. Section 4 said that the Provincial Government might appoint to be a Special Judge for such area as it might think fit any person who had acted for a period of not less than two years as a Sessions Judge or an Assistant Sessions Judge under the