JUDGMENT

Iqbal Ahmad, C. J.

1. After the promulgation of Ordinance 19 of 1943 on 5th June 1943, numerous appeals against the decisions of Special Judges and Special Magistrates, in cases tried by them in accordance with the provisions of Ordinance 2 of 1942, were filed in this Court and, in most of the appeals, the validity of Ordinance 19 itself was assail-ed. A number of applications u/s 491, Criminal P. C., were also filed and in those applications as well the question of the validity or otherwise of Ordinance 19 was directly and specifically in issue. Before these appeals and applications were put for final disposal, the question raised formed the subject of debate and discussion in and of decision by the Calcutta, Patna and the Madras High Courts, and the decisions of those Courts were by no means uniform. To avoid conflict of judicial opinion in this Court on the question raised, and also with a view to have an authoritative pronouncement for the guidance of the Sessions Judges subordinate to this Court, who also have to deal with appeals preferred by persons tried and convicted under Ordinance 2, I constituted the present Full Bench.

2. The circumstances that led to the making and promulgation of Ordinance 19 are not, and cannot be, a matter of controversy and those circumstances are set out in the judgments of the Calcutta, Patna and the Madras High Courts which will presently be referred to. To put briefly, the Federal Court on 4th June 1943, in AIR 1943 36 (Federal Court) , held that the Courts that tried and convicted persons under ordinance 2 had not the jurisdiction to do so. In this connexion Varadachariar C. J., observed as follows :

We are of the opinion that the Ordinance has not by itself repealed Sections 28 and 29, Criminal P. C., (if such repeal were necessary) as we think it was--that notwithstanding drafting devices, it is only the order of the executive authority passed u/s 5, 10 or 16 of the Ordinance, in respect of each case or group or class of cases that in fact operate to repeal those provisions of the Code to divest the regular Courts of their jurisdiction and to invest the Special Courts with jurisdiction to try any particular ease or group or class of cases. We are also of the opinion that such executive orders cannot in law have any such effect and that Sections 5, 10 and 16 of the Ordinance are open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion, without any legislative provision or direction laying down the policy or conditions with reference to which that power is to be exercised. The powers of the High Court, though in form taken away by Section 26 of the Ordinance, are in fact only taken away by the order of the executive officer, because it is only on such order or direction being given that any case becomes a proceeding before a Special Court for the purpose of Section 26. We accordingly agree with the High Court that 'the Court which purported to try and convict the respondents had no jurisdiction to do so.'

3. It was manifest from the decision of the Federal Court that the sentences imposed by the Courts constituted under ordinance 2 were illegal and, therefore, all the persons convicted by those Courts were entitled to be released. This situation was, presumably, taken by the Governor-General to amount to an "emergency" and led to the passing of ordinance 19 on 5th June 1948. The Ordinance is styled as Ordinance "to repeal the Special Criminal Courts Ordinance, 1942, and to provide for certain matters in connection with such repeal." It consists of 5 sections. The Ordinance is given immediate operation by Section 1 and by Section 2 the Special Criminal Courts Ordinance 2 of 1942 is repealed. Section 3, which is material for our present purposes, runs as follows:

3. Confirmation and continuance, subject to appeal, of sentences--(1) Any sentence passed by a Special Judge, a Special Magistrate or a Sum