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SAIYID FAZL ALI J. – This is an appeal by one Kathi Raning Rawat, who has been convicted under Sections 302, 307 and 392 read with Section 34 of the Indian Penal Code and sentenced to death and to seven years’ RI, the sentences to run concurrently. The appellant was tried by a Special Court constituted under the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 (Ordinance 66 of 1949), which was issued by the Rajpramukh of Saurashtra on 2nd November, 1949, and his conviction and sentence were upheld on appeal by the State High Court. He has preferred an appeal to this Court against the decision of the High Court.
12. The principal question which arises in this appeal is whether the Ordinance to which reference has been made is void under Article 13(1) of the Constitution on the ground that it violates the provisions of Article 14. It appears that on the 5th April, 1948, the Rajpramukh of Saurashtra State promulgated an Ordinance called the Criminal Procedure Code, 1898 (Adaptation) Ordinance, 1948 by which “the Criminal Procedure Code of the Dominion of India as in force in that Dominion on the 1st day of April, 1948” was made applicable to the State of Saurashtra with certain modifications. In the same month, another Ordinance called the Saurashtra State Public Safety Measures Ordinance (Ordinance 9 of 1948) was promulgated, which provided among other things for the detention of persons acting in a manner prejudicial to public safety, maintenance of public order and peace and tranquillity in the State. Subsequently, on 5th November, 1949, the Ordinance with which we are concerned, namely, the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, was promulgated, which purported to amend the previous Ordinance by inserting in it certain provisions which may be summarised as follows:
13. Section 9 of the Ordinance empowers the State Government by notification in the Official Gazette to constitute Special Courts of criminal jurisdiction for such area as may be specified in the notification. Section 11 provides that a Special Judge shall try such offences
or class of offences or such cases or class of cases as the State Government may, by general or special order in writing, direct. Sections 12 to 18 lay down the procedure for the trial of cases by the Special Judge, the special features of which are as follows:
(1) The Special Judge may take cognizance of offences without the accused being committed to his court for trial;
(2) There is to be no trial by jury or with the aid of assessors;
(3) The Special Judge should ordinarily record a memorandum only of the substance of the evidence of each witness; and
(4) The person convicted has to appeal to the High Court within 15 days from the date of the sentence.
14. The Ordinance further provides that the provisions of Sections 491 and 526 of the Code of Criminal Procedure shall not apply to any person or case triable by the Special Judge, and the High Court may call for the record of the proceedings of any case tried by a Special Judge and may exercise any of the powers conferred on an appellate court by Sections 423, 426, 427 and 428 of the Code.
15. From the foregoing summary of the provisions of the Ordinance, it will appear that the difference between the procedure laid down in the Criminal Procedure Code and the procedure to be followed by the Special Judge consists mainly in the following matters:
(1) Where a case is triable by a Court of Session, no commitment proceeding is necessary, and the Special Judge may take cognizance without any commitment;
(2) The trial shall not be by jury or with the aid of assessors;
(3) Only a memorandum of the substance of the evidence of each witness is ordinarily to be recorded;
(4) The period of limitation for appeal to the High Court is curtailed; and
(5) No court has jurisdiction to transfer any case from any Special Judge, or to make an order under Section 491 of the Criminal Procedure Code.
16. It appears that pursuant to the provisions contained in Sections 9, 10 and 11 of the Ordinance, the State Government issued a Notification H/35-5-C, dated the 9/11th February, 1951, directing the constitution of a Special Court for certain areas mentioned in a schedule attached to the Notification and empowering such court to try the following offences, namely, offences under Sections 183, 189, 190, 212, 216, 224, 302, 304, 307, 323 335, 341-344, 379- 382, 384-389 and 392-402 of the Indian Penal Code, 1860, as adapted and applied to the State of Saurashtra, and most of the offences under the Ordinance of 1948.
17. In the course of the hearing, an affidavit was filed by the Assistant Secretary in the Home Department of the Saurashtra Government, stating that since the integration of different States in Kathiawar in the beginning of 1948 there had been a series of crimes against public peace and that had led to the promulgation of Ordinance 9 of 1948, which provided among other things for detention of persons acting in a manner prejudicial to public safety and maintenance of public order in the State. Notwithstanding this Ordinance, the crimes went on increasing and there occurred numerous cases of dacoity, murder, nose- cutting, ear-cutting, etc. for some of which certain notorious gangs were responsible, and hence Ordinance LXVI of 1949 was promulgated to amend the earlier Ordinance and to
provide for public safety, maintenance of public order and preservation of peace and tranquility in the State. It was not disputed before us that the preamble of the original Ordinance would govern the amending Ordinance also, and the object of promulgating the subsequent Ordinance was the same as the object of promulgating the original Ordinance. Once this is appreciated, it is easy to see that there is something in the Ordinance itself to guide the State Government to apply the special procedure not to any and every case but only to those cases or offences which have a rational relation to or connection with the main object and purpose of the Ordinance and which for that reason become a class by themselves requiring to be dealt with on a special footing. The clear recital of a definite objective furnishes a tangible and rational basis of classification to the State Government for the purpose of applying the provisions of the Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and preservation of peace and tranquility. Thus, under Section 11, the State Government is expected to select only such offences or class of offences or class of cases for being tried by the Special Court in accordance with the special procedure, as are calculated to affect public safety, maintenance of public order, etc., and under Section 9, the use of the special procedure must necessarily be confined to only disturbed areas or those areas where adoption of public safety measures is necessary. That this is how the Ordinance was intended to be understood and was in fact understood, is confirmed by the Notification issued on the 9/11th February by the State Government in pursuance of the Ordinance. That Notification sets out 49 offences under the Indian Penal Code as adapted and applied to the State and certain other offences punishable under the Ordinance, and one can see at once that all these offences directly affect the maintenance of public order and peace and tranquility.
The Notification also specifies certain areas in the State over which only the Special Court is to exercise jurisdiction. There can be no dispute that if the State Legislature finds that lawlessness and crime are rampant and there is a direct threat to peace and tranquility in certain areas within the State, it is competent to deal with offences which affect the maintenance of public order and preservation of peace and tranquility in those areas as a class by themselves and to provide that such offences shall be tried as expeditiously as possible in accordance with a special procedure devised for the purpose. This, in my opinion, is in plain language the rationale of the Ordinance, and it will be going too far to say that in no case and under no circumstances can a legislature lay down a special procedure for the trial of a particular class of offences, and that recourse to a simplified and less cumbrous procedure for the trial of those offences, even when abnormal conditions prevail, will amount to a violation of Article 14 of the Constitution. I am satisfied that this case is distinguishable from the case relating to the West Bengal Act, but I also feel that the legislatures should have recourse to legislation such as the present only in very special circumstances. In the result, I would hold that the Saurashtra State Public Safety Measures (Third Amendment) Ordinance is not unconstitutional, and accordingly overrule the objection as to the jurisdiction of the Special Court to try the appellant.
BIJAN KUMAR MUKHERJEA, J. – 26. It was set down for hearing on certain preliminary points of law raised by the learned counsel for the appellant attacking the legality of the entire trial on the ground that Section 11 of the Saurashtra Public Safety Measures Ordinance 66 of 1949 passed by the Rajpramukh of Saurashtra as well as the Notification
issued by the State Government on 9/11th February, 1951, under which the Special Court was constituted and the trial held, were void and inoperative. The first and the main ground upon which the constitutional validity of the section and the notification has been assailed is that they are in conflict with the provision of Article 14 of the Constitution.
28. It is not disputed that the language of Section 11 of the Saurashtra Ordinance, with which we are now concerned, is identically the same as that of Section 5(1) of the West Bengal Special Courts Act.
29. In the West Bengal Act there is a further provision embodied in clause (2) of Section 5 which lays down that no such direction as is contemplated by clause (1) could be given in respect of cases pending before ordinary criminal courts at the date when the Act came into force. No such exception has been made in the Saurashtra Ordinance. In the Calcutta cases referred to above, the notification under Section 5(1) of the West Bengal Act directed certain individual cases in which specified persons were involved to be tried by the Special Court and it was held by the High Court of Calcutta that Section 5(1) of the West Bengal Special Courts Act to the extent that it empowers the State Government to direct any case to be tried by Special Courts was void as offending against the provision of the equal protection clause in Article 14 of the Constitution; and this view was affirmed in appeal by a majority of this court. With regard to the remaining part of Section 5(1), which authorises the State Government to direct, “offences, classes of offences…or classes of cases” for trial by Special Courts, the majority of the Judges of the Calcutta High Court were of opinion that it was not obnoxious to Article 14 of the Constitution. In the present case the notification, that was issued by the Saurashtra State Government on 9/11th February, 1951, did not relate to individual cases. The notification constituted in the first place a Special Court in the areas specified in the schedule. It appointed in the next place a judge to preside over the Special Court and finally gave a list of offences with reference to appropriate sections of the Indian Penal Code which were to be tried by the Special Judge. If the view taken by the Chief Justice of the Calcutta High Court and the majority of his colleagues is right, such notification and that part of Section 11 of the Ordinance, under which it was issued, could not be challenged as being in conflict with Article 14 of the Constitution. This point did come up for consideration before us in the appeals against the Calcutta decision with reference to the corresponding part of Section 5(1) of the West Bengal Act, but although a majority of this court concurred in dismissing the appeals, there was no such majority in the pronouncement of any final opinion on this particular point.
30. In my judgment in the Calcutta appeals I was sceptical about the correctness of the view taken upon this point by the learned Chief Justice of the Calcutta High Court and the majority of his colleagues. The consideration that weighed with me was that as the learned Judges were definitely of opinion that the necessity of speedier trial, as set out in the preamble, was too elusive and uncertain a criterion to form the basis of a proper classification, the authority given by Section 5(1) of the Special Courts Act to the State Government to direct any class of cases or offences to be tried by the Special Court would be an unguided authority and the propriety of the classification made by the State Government that is said to be implied in the direction could not be tested with reference to any definite legislative policy or standard. Mr Sen, appearing for the State of Saurashtra, has argued before us that in this respect the Saurashtra Ordinance stands on a different footing and he has referred in this connection to the preamble to the original ordinance as well as the
circumstances which necessitated the present one. As the question is an important one and is not concluded by our previous decision, it merits, in my opinion, a careful consideration.
31. It may be stated at the outset that the Criminal Procedure Code of India as such has no application to the State of Saurashtra. After the State acceded to the Indian Union, there was an Ordinance promulgated by the Rajpramukh on 5th of April, 1948, which introduced the provisions of the Criminal Procedure Code of India (Act 5 of 1898) with certain modifications into the Saurashtra State. Another ordinance, known as the Public Safety Measures Ordinance, was passed on the 2nd of April, 1948, and this ordinance, like similar other public safety measures obtaining in other States, provided for preventive detention, imposition of collective fines, control of essential supplies and similar other matters. On 11th of November, 1949, the present Ordinance was passed by way of amendment of the Public Safety Measures Ordinance and inter alia it made provisions for the establishment of Special Courts. Section 9 of this Ordinance empowers the State Government to constitute Special Courts of criminal jurisdiction for such areas as may be specified in the notification. Section 10 relates to appointment of Special Judges who are to preside over such courts and Section 11 lays down that the Special Judge shall try “such offences or classes of offences… or classes of cases as the Government of United State of Saurashtra may by general or special order in writing, direct.” The procedure to be followed by the Special Judges is set out in Sections 12 to 18 of the Ordinance. In substance the Special Court is given the status of a sessions court, although committal proceeding is eliminated and so also is trial by jury or with the aid of assessors. The Special Judge has only to make a memorandum of the evidence and he can refuse to summon any witness if he is satisfied after examination of the accused that the evidence of such witness would not be material. Section 16(1) curtails the period of limitation within which an accused convicted by the Special Judge has to file his appeal before the High Court and clause (3) of the section provides that no court shall have jurisdiction to transfer any case from any Special Judge or make any order under Section 491 of the Criminal Procedure Code.
The ordinance certainly lacks some of the most objectionable features of the West Bengal Act. Thus it has not taken away the High Court’s power of revision, nor does it expose the accused to the chance of being convicted of a major offence though he stood charged with a minor one. There is also no provision in the ordinance similar to that in the West Bengal Act which enables the court to proceed with the trial in the absence of the accused. But although the ordinance in certain respects compares favourably with the West Bengal Act, the procedure which it lays down for the Special Judge to follow does differ on material points from the normal procedure prescribed in the Criminal Procedure Code; and as these differences abridge the rights of the accused who are to be tried by the Special Court, and deprive them of certain benefits to which they would otherwise have been entitled under the general law, the ordinance prima facie makes discrimination and the question has got to be answered whether such discrimination brings it in conflict with Article 14 of the Constitution.
32. The nature and scope of the guarantee that is implied in the equal protection clause of our Constitution have been explained and discussed in more than one decision of this court and do not require repetition. It is well settled that a legislature for the purpose of dealing with the complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate. The consequence of such classification would undoubtedly be to differentiate the
persons belonging to that class from others, but that by itself would not make the legislation obnoxious to the equal protection clause. Equality prescribed by the Constitution would not be violated if the statute operates equally on all persons who are included in the group, and the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view. The legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives of the legislation, that necessity of judicial interference arises.
33. Section 11 of the Saurashtra Ordinance so far as it is material for our present purpose lays down that a Special Court shall try “such offences or classes of offences…or classes of cases as the State Government may…direct”. This part of the section undoubtedly contemplates a classification to be made of offences and cases but no classification appears on the terms of the statute itself which merely gives an authority to the State Government to determine what classes of cases or offences are to be tried by the Special Tribunal. The question arises at the outset as to whether such statute is not on the face of it discriminatory as it commits to the discretion of an administrative body or officials the duty of making selection or classification for purposes of the legislation; and there is a still further question, namely, by what tests, if any, is the propriety of the administrative action to be adjudged and what would be the remedy of the aggrieved person if the classification made by the administrative body is arbitrary or capricious?
35. As has been stated already, Section 11 of the Saurashtra Ordinance is worded in exactly the same manner as Section 5(1) of the West Bengal Special Courts Act; and that part of it, with which we are here concerned, authorises the State Government to direct any classes of offences or cases to be tried by the Special Tribunal. The State Government, therefore, has got to make a classification of cases or offences before it issues its directions to the Special Court. The question is, on what basis is the classification to be made? If it depends entirely upon the pleasure of the State Government to make any classification it likes, without any guiding principle at all, it cannot certainly be a proper classification, which requires that a reasonable relation must exist between the classification and the objective that the legislation has in view. On the other hand, if the legislature indicates a definite objective and the discretion has been vested in the State Government as a means of achieving that object, the law itself, as I have said above, cannot be held to be discriminatory, though the action of the State Government may be condemned if it offends against the equal protection clause, by making an arbitrary selection. Now, the earlier ordinance, to which the present one is a subsequent addition by way of amendment, was passed by the Rajpramukh of Saurashtra on 2nd April, 1948. It is described as an ordinance to provide for the security of the State, maintenance of public order and maintenance of supplies and services essential to the community in the State of Saurashtra. The preamble to the ordinance sets out the objective of the ordinance in identical terms. It is to be noted that the integration of several States in Kathiawar which now form the State of Saurashtra, was completed some time in February, 1948. It appears from the affidavit of an officer of the Home Government of the Saurashtra State that soon after the integration took place, an alarming state of lawlessness prevailed in some of the districts within the State. There were gangs of dacoits operating at different places and their number began to increase gradually. As ordinary law was deemed insufficient to cope with the nefarious activities of those criminal gangs, the Saurashtra Public Safety
Measures Ordinance was promulgated by the Rajpramukh on 2nd April, 1948. The ordinance, as stated already, provided principally for preventive detention and imposition of collective fines; and it was hoped that armed with these extraordinary powers the State Government would be able to bring the situation under control. These hopes, however, were belied, and the affidavit gives a long list of offences in which murder and nose-cutting figure conspicuously in addition to looting and dacoity, which were committed by the dacoits during the years 1948 and 1949.
In view of this ugly situation in the State, the new Ordinance was passed on 11th of November, 1949, and this ordinance provides inter alia for the establishment of Special Courts which are to try offenders under a special procedure. Acting under Section 11 of the Ordinance, the Government issued a notification on 9/11th February, 1950, which constituted a Special Court for areas specified in the schedule, and here again the affidavit shows that all these areas are included in the districts of Gohilwad, Madhya Saurashtra and Sorath, where the tribe of marauders principally flourished. The object of passing this new ordinance is identically the same for which the earlier Ordinance was passed, and the preamble to the latter, taken along with the surrounding circumstances, discloses a definite legislative policy which has been sought to be effectuated by the different provisions contained in the enactment. If Special Courts were considered necessary to cope with an abnormal situation, it cannot be said that the vesting of authority in the State Government to select offences for trial by such courts is in any way unreasonable.
36. In the light of the principles stated already, I am unable to hold that Section 11 of the Ordinance insofar as it authorises the State Government to direct classes of offences or cases to be tried by the Special Court offends against the provision of the equal protection clause in our Constitution. If the notification that has been issued by the State Government proceeds on any arbitrary or unreasonable basis, obviously that could be challenged as unconstitutional. It is necessary, therefore, to examine the terms of the notification and the list of offences it has prescribed.
37. The notification, as said above, constitutes a Special Court for the areas mentioned in the Schedule and appoints Mr P.P. Anand as a Special Judge to preside over the Special Court. The offences triable by the Special Court are then set out with reference to the specific sections of the Indian Penal Code. Mr. Chibber attacks the classification of offences made in this list primarily on the ground that while it mentions offences of a particular character, it excludes at the same time other offences of a cognate character in reference to which no difference in treatment is justifiable. It is pointed out that while Section 183 of the Indian Penal Code is mentioned in the list, Sections 184, 186 and 188 which deal with similar offences are excluded. Similarly the list does not mention Section 308 of the Indian Penal Code, though it mentions Section 307. The learned counsel relies in this connection upon the decision of the Supreme Court of America in Skinner v. Oklahoma [316 US 535]. In that case the question for consideration related to the constitutionality of a certain statute of Oklahoma which provided for sterilization of certain habitual criminals who were convicted two or more times in any State of felony involving moral turpitude. The statute applied to persons guilty of larceny, which was a felony, but not to embezzlement, and it was held that the legislation violated the equal protection clause. It is undoubtedly a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner, a person accused of one should not be treated differently from
a person accused of the other, because it is an essential principle underlying the equal protection clause that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. At the same time it is to be noted as Douglas, J., observed in the very case that in determining the reach and scope of particular legislation it is not necessary for the legislature to provide abstract symmetry. “It may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience.”
A too rigid instance therefore on a thing like scientific classification is neither practicable nor desirable. It is true that the notification mentions Section 183 of the Indian Penal Code, though it omits Section 184; but I am unable to hold that the two are identically of the same nature. Section 183 deals with resistance to the taking of property by the lawful authority of public servant; while Section 184 relates to obstructing sale of property offered for sale by authority of public servant. Section 186 on the other hand does not relate to the taking of property at all, but is concerned with obstructing a public servant in the discharge of his public duties. Then again I am not sure that it was incumbent upon the State Government to include Section 308 of the Indian Penal Code in the list simply because they included Section 307. It is true that culpable homicide as well as attempt to murder are specified in the list; but an attempt to commit culpable homicide is certainly a less heinous offence and the State Government might think it proper, having regard to all the facts known to them, that an offence of attempt to commit culpable homicide does not require a special treatment.
38. Be that as it may, I do not think that a meticulous examination of the various offences specified in the list with regard to their nature and punishment is necessary for purposes of this case. The appellant before us was accused of murder punishable under Section 302 of the Indian Penal Code. There is no other offence, I believe, described in the Indian Penal Code, which can be placed on an identical footing as murder. Even culpable homicide not amounting to murder is something less heinous than murder, although it finds a place in the list. In my opinion, the appellant can have no right to complain if he has not been aggrieved in any way by any unjust or arbitrary classification. As he is accused of murder and dacoity and no offences of a similar nature are excluded from the list, I do not think that it is open to him to complain of any violation of equal protection clause in the notification. There are quite a number of offences specified in the notification and they are capable of being grouped under various heads. Simply because certain offences which could have been mentioned along with similar other in a particular group have been omitted therefrom, it cannot be said that the whole list is bad. The question of inequality on the ground of such omission can be raised only by the person who is directed to be tried under the special procedure for a certain offence, whereas for commission of a similar offence not mentioned in the list another person has still the advantages of the ordinary procedure open to him. In my opinion, therefore, the first point raised on behalf of the appellant cannot succeed.
