JUDGMENT

Bennett, J - This is an application in revision under Sections 435 and 439, Criminal P.C., against an order passed by the learned Sessions Judge of Lucknow, dismissing a similar application preferred in his Court by the applicant, Vishnu Pershad. Section 215 is also referred to as one of the sections of the Code under which the application is made, but it has not been shown how it applies, and since there was no commitment to Sessions in the case, it appears to be clearly inapplicable. The application shows that Vishnu Pershad and certain other persons were prosecuted under Section 147 and Section 302 read with Section 114, Penal Code, for offences alleged to have been committed on 28th February 1942. The case came before a Magistrate for enquiry preparatory to commitment to the Court of Session, but could not be taken up on the dates fixed. The statements of certain witnesses are said to have been recorded under Section 164 on 5th March 1942, but as provided by this section this was of course done before the commencement of the magisterial enquiry.

2. The Special Criminal Courts Ordinance of 1942 (No. 2 of 1942) which was promulgated on 2nd January 1942, was brought into force in the United Provinces by a notification dated 20th August 1942. 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 jurisdictionof the District Magistrate. I understand that in the case under consideration the District Magistrate of Lucknow in the exercise of this power directed that the case against the applicant and others should be tried by the Special Judge under the ordinance.

3. The contention in the present application is that

the said ordinance has no application to pending cases, nor has it any retrospective effect in connection with offences committed before coming into force of the said ordinance, i.e., 20th August'1942, nor has it any application to offences unconnected with the state of emergency for which it was promulgated.

4. Apart from these contentions two other questions were also raised in the course of arguments, the first whether the ordinance was legally promulgated under Section 72, Government of India Act (Ninth Schedule) and the second whether power to promulgate ordinances is connected with the Defence of India Act. As regards the first question learned Counsel for the applicant referred me to the provision which formerly existed in Section 72 limiting the life of an ordinance to six months from its promulgation, but he conceded that as the section had been amended and this limiting provision deleted, he could not press this point. On the second point I am unable to see any connection between the Ordinance and the Defence of India Act, the ordinance having been made and promulgated under Section 72, Government of India Act (Ninth Schedule). A similar question appears to have been raised before the Sessions Judge, who observed that the argument that the power to promulgate the ordinance is derived from this Act has no basis.

5. I come now to the contentions advanced in the application. The first is that the ordinance does not apply to pending cases. In support of this contention certain orders passed by myself as the Judge nominated by the Provincial Government under Section 8 of the Ordinance to review proceedings under the ordinance were referred to. The eases in which these orders were passed had been committed to the Court of Session before the order of the District Magistrate directing t