JUDGMENT

Thomas, CJ - This is an application by Bhagwat Dayal Baijal under Section 561A, Criminal P.C., for quashing proceedings pending against him in the Court of the Sessions Judge of Lucknow. There is also a prayer in-the application that the Special Criminal Courts Ordinance of 1942 (No. 2 of 1942) be declared ultra vires and invalid in law. The accused with some other persons is being prosecuted under Sections 147 and 302 read with Section 114, Penal Code, for offences alleged to have been committed on 28th February 1942 in the City of Lucknow. The case came up before a Magistrate for enquiry preparatory to commitment to the Court of Session,; but for some reason or other could not be taken up on the dates fixed. The accused have been committed to the Court of Session without any preliminary inquiry and the learned Sessions Judge is going to try the case as a Special Judge under the Ordinance. The Special Criminal Courts Ordinance of 1942 (No. 2 of 1942) which was promulgated on 2nd January 1942, came into force in the United Provinces by a notification dated 20th August 1942 and by another notification under Section 4 of the Ordinance of the same date Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges, who have exercised powers as such for not less than two years, were appointed as Special Judges under the Ordinance with power to try certain offences. By a further notification of the same date under Section 5 of the Ordinance District Magistrates were empowered to direct by a general or special order in writing what offences or classes of offences, or cases or classes of cases may be tried by a Special Judge within the territorial jurisdiction of the District Magistrate.

2. It was urged by the learned Counsel that the life of an Ordinance was limited to six months only from the date of its promulgation. There is no force in this argument as Section 72 of Schedule 9, Government of India Act, 1985, which limited the life of an Ordinance to six months from its promulgation has been amended and the limiting provision deleted. It was next contended that the Ordinance did not apply to pending cases, and, in support of this argument, the learned Counsel relied on certain decisions of the Hon'ble Bennet J. The Hon'ble Judge has been nominated by the Provincial Government under Section 8 of the Ordinance to review proceedings under the Ordinance, and the cases in which these orders were passed by the Hon'ble Judge had been committed to the Court of Session before the order of the District Magistrate directing their trial by the Special Judge was passed, and as the legality of the said order was considered doubtful by the learned Judge, he therefore set aside the conviction under the Ordinance and directed a retrial under the ordinary provisions of law. The cases are clearly distinguishable from the present case.

3. The District Magistrate is given wide powers under the Ordinance of directing what cases shall be tried thereunder and I do not see how these powers can be limited by holding that he has not the power to direct that a case, which is awaiting trial in which no proceedings have taken place, shall be tried under the Ordinance. Where the magisterial enquiry has been completed and the case has been committed to the Court of Session for trial different considerations may prevail. The District Magistrate has not the power under the Ordinance to intervene and say that it should be tried not under the ordinary law but under the Ordinance. At any rate, in my opinion, it would appear undesirable on general principles. It was next argued that the Ordinance has no retrospective effect so as to apply to the offences committed before 20th August 1942, (that is before the Ordinance came into force). There is no express provision which makes it applicable to such 'offences, but I am of opinion that from the Wid'e powers which have been given to the District Magistrates to direct what cases should be tried under