JUDGMENT

Varadachariar, C.J. - This is an appeal by the Crown from a judgment of a Special Bench of the Calcutta High Court in a criminal revision case. It seeks the reversal of a pronouncement by the High Court to the effect that certain provisions of an Ordinance (entitled the Special Criminal Courts Ordinance) published by the Governor-General early in 1942 are void or ultra vires the Governor-General. It is sufficient at this stage to say that the Ordinance provides for the constitution of three classes of Courts of criminal jurisdiction, described as Special Judges, Special Magistrates and Summary Courts and empowers Provincial Governments to appoint to these offices persons with specified qualifications. The classes of cases to be tried by these tribunals are defined in termes which have given rise to the main contentions advanced in the case and this portion of the Ordinance will require detailed consideration. The Ordinance fixes the maximum sentence which each of these tribunals can impose and declare that certain provisions of the Criminal Procedure Code as to the mode of trial, e.g., those relating to commitment, trial by jury etc., are inapplicable to proceedings under the Ordinance. The provisions of the Criminal Procedure Code relating to summoning of witnesses, recording of evidence, granting of bail, granting of adjournments, etc., are also modified. A right of appeal is given in certain cases from the decisions of Summary Courts to Special Magistrates and in certain cases appeals lie from the decisions of Special Magistrates to Special Judges. There is however no appeal from the decision of a Special Judge, but a limited provision is made for what is described as a "review" by a person nominated by the Provincial Government from among the Judges of the High Court. Except as stated above, there is to be no right of appeal from any order or sentence of a Court constituted under the Ordinance and no Court is to have authority to revise such order or sentence or to transfer any case from such Court or to make any order Under Section 491, Criminal P.C., or have any jurisdiction of any kind in respect of any proceedings of any such Court. It is finally declared that the provisions of the Criminal Procedure Code shall apply to proceedings under the Ordinance except in so far as they are inconsistent with the provisions of the Ordinance. The preamble recites that an emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts. Section 1(8) however enacts that the Ordinance shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring 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. A later amendment added "any disorder within the Province" to the emergency causes enumerated in the clause.

2. The Ordinance was brought into force in Bengal early in April 1942. The respondents here, who were the petitioners before the High Court, were tried by a Special Magistrate functioning under the Ordinance and sentenced to rigorous imprisonment for a term of two years. They invoked the revi-sional jurisdiction of the High Court, contending that the Ordinance was ultra vires, and that the revisional jurisdiction was therefore not excluded by Section 26 of the Ordinance. On the same ground, they contended that the Special Magistrate had no jurisdiction to try them.

3. A variety of arguments seem to have been urged before the High Court, in support of the revision petition. It is at present sufficient to refer to two of them:

(1) Section 72 gives the Governor-General power to make an Ordinance only in cases of an existing emergency, to be determined by the Governor-General and not in a case of a future or prospective emergency, the existence of which is left to the Provincial Government