Patna High Court
Budhan Choudhry And Ors. vs The State on 25 August, 1953
Equivalent citations: 1954CRILJ565
JUDGMENT
1. This appeal comes to me on a difference between my learned brothers Das J. and Sinha J.
2. The appellants have been convicted under Sections 366 and 143 of the Indian Penal Code and have been sentenced each to rigorous imprisonment for five years under Section 366, No separate sentence has been imposed under Section 143. The main point of difference is one arising under the Constitution of India. The case relates to the district of Hazaribagh, to which district Section 30 of the Criminal Procedure Code applies. There is at this time an Assistant Sessions Judge exercising powers in the district of Hazaribagh. When the chargesheet was received in the present case the Sub-divisional Magistrate submitted the record to the Deputy Commissioner of Hazaribagh with the following order:
Let the record be sent to the Deputy Commissioner of Hazaribagh for transferring it to the file of the Special Magistrate for trial.
It may be noted that the term "Special Magistrate", although there is no legal provision for it, is by practice used to denote the Magistrate exercising powers under Section 30 of the Code. On receiving the record the Deputy Commissioner passed the order of transfer in the following terms:
Perused S. D. O's ordersheet. Withdrawn and transferred to the file of Mr. S. F. Azam, Magistrate with powers under Section 30, Criminal Procedure Code, for favour of disposal.
In the course of the argument before me it has been urged that the Deputy Commissioner as such has no powers under the Criminal Procedure Code. Admittedly the Deputy Commissioner is also the District Magistrate and the use of the wrong terminology in the Sub-divisional Magistrate's order will not affect the validity of the order of withdrawal and transfer.
The case was thereafter tried by Mr. Azam and ended in the conviction and sentence mentioned above. It was contended before their Lordships in appeal that the appellants had been subjected to unequal treatment inasmuch as they had been tried by the Magistrate empowered under Section 30 instead of being tried in the ordinary way by the Court of Session. This contention has been accepted by Sinha J. but not by Das J.
3. There is another point of difference which makes it necessary for me to examine the facts of the case. The main judgment in the case was delivered by Sinha J. who dealt with the case on the merits. He held that the appellants had been rightly convicted and expressed the opinion that, if he had not found the trial to be hit by Article 14 of the Constitution of India, he would have upheld the conviction of the. appellants but reduced the sentence of imprisonment to two years in the case of each of the appellants. Das J. accepted entirely the conclusions of Sinha J. on the facts of the case. In expressing his opinion after repelling the contention about discrimination he stated that he would dismiss the appeal. It is not clear from his judgment whether at the time of expressing this view he had in mind Sinha J.'s proposal that the sentences should be reduced.
4. The facts as found are that there are two brothers, Sukar Mahto and Barhan Mahto. The younger brother, Barhan, had a daughter named Bhatni, aged about 10 years. By due negotiations between the parties it had been arranged that Bhatni should marry appellant Ganpat Choudhry, brother of the appellant Budhan Choudhry, and Rs. 600/- was paid to Barhan for getting his consent. Before the marriage took place, however, Bhatni died. This was in the month of Aghan. Thereupon Budhan demanded repayment of the money. There was a 'panchaiti', and the 'panches' decided that only Rs. 315/- should be repaid. Barhan left home in order to make arrangement for the money. Apparently the appellants were not satisfied with the decision of the 'panches' and during Barhan's absence and when Sukar had gone out of the house for some purpose the appellants came to the house and carried away Bilua, Sukar's daughter aged about 4 or 5 years. Sukar came back on hearing the alarm raised by his wife and protested. Nevertheless the appellants took the girl to their village Nawadih and on that very day performed her marriage with Ganpat appellant.
It is not suggested that beyond going through the form of marriage between Ganpat appellant and the girl anything more was done, and the girl is now in the house of her parents. Some of the appellants are persons of tender years; for instance, Ganpat Choudhry is aged 13 years and Budhan Mahto is 20 years old. The Magistrate who tried the case and who saw these persons in the dock was apparently unable to distinguish between them in the matter of the sentence. In these circumstances it is perhaps better to accept the lighter sentence which seems to my brother Sinha J. to be appropriate for the offence.
5. I come now to the point arising under the Constitution of India. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, and under Article 13 of the Constitution all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are in consistent with the provisions of Part III of the Constitution, which Part includes Article 14, shall, to the extent of such inconsistency, be void. The meaning and effect of the guarantee under Article 14 has been explained by their Lordships of the Supreme Court in several decisions, among which I may mention - Charanjit Lal v. Union of India ; - State of West Bengal v. Anwar Ali Sarkar Lachmandas Kewalram v. State of Bombay and - Qastm Razvi v. State of Hyderabad , and it would be a work of supererogation on my part to discuss this afresh.
In the words of Professor Willis, the guarantee forbids class legislation but not classification resting on reasonable grounds. It does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subject to Such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.
6. The substance of the objection in the present case is that the appellants have been tried under a procedure applying to the trial of warrant cases by a Magistrate, although other persons charged under the same sections would be entitled under the provisions of the Criminal Procedure Code to trial in the Court of Session following a procedure which is more advantageous to the accused persons than the procedure prescribed for the trial of warrant cases by a Magistrate. The circumstances in which this anomalous state of things has come about have been examined by Das J. and it is evident from his examination that the prescription of two alternative modes of procedure in the areas affected for the trial of offences not punishable with death is founded on the backwardness of those areas as compared with other parts of India. Das J. has suggested that one of the objects of providing the alternative mode of trial for such offences was to accelerate proceedings by avoiding the delay consequent on the commitment of the accused to the Court of Session, and has referred in this connection to the observations in - Amir Khan v. King Emperor 7 Cal WN 457 (E) and - 'In re Prithivinath' AIR 1938 Nag 56 (F).
The desirability of a quick disposal of cases exists in all areas whether advanced or backward. Perhaps the necessity for ensuring it is greater in a backward area where the local inhabitants would be less likely to understand the formalities of a procedure which puts off for an indefinite period the bringing to justice of offenders. To the primitive mind it seems natural that a person who has offended should be dealt with at once and given what he deserves, and such a mind will tend to be impatient with a procedure which requires that a person wrongly accused of a crime must be detained in custody for a long time till the arrival of some high judicial officer on circuit or be harassed by a trial in some far away district town before he can secure his liberty. These appear to be some of the considerations which perhaps induced the legislature to prescribe the Sessions procedure exclusively for offences punishable with death.
I would suggest another consideration which may also have been operative, namely, the difficulty in the backward areas of finding suitable persons to act as jurors or assessors. One more possibility comes to my mind. The areas in which Section 30 operates are generally areas where members of the aboriginal tribes abound. These people are very different in their ideas and more violent in their reactions than the people we find in the regulation areas. They were more childlike in their outlook and district administration in these areas generally took the form of a paternal Government with the Deputy Commissioner as the 'ma-bap' of the. district. The Deputy Commissioner and his local assistants would be more likely to know and understand the ways of these people than a Sessions Judge or the Judicial Commissioner whose work confines them to me headquarters of the district and limits their experience of these folk to contacts in court.
There would also be difficulties in language which would affect both the Judge and the jurors or assessors, as the case might be, and would necessitate proceedings being taken in a language which the accused persons did not understand. By increasing the powers of the Magistrate in the manner it did, therefore, the legislature gave these persons a court which Was likely to be more sympathetic and understanding than a Court of Session would be.
7. The differentiation between one portion of a State and another portion of it in the matter of the procedure prescribed for criminal trials in these portions does not offend against the equality clause. Bradley J. in - Missouri v. Lewis (1880) 101 US 22 (G), observed:
The last restriction, as to the equal protection pi the laws, is not violated by any diversity in the jurisdiction of the several courts as to subject-matter, amount or finality of decision, if all persons within the territorial limits of their respective jurisdictions have an equal right, in like cases and under like circumstances, to resort to them for redress. Each State has the right to make political sub-divisions of its territory for municipal purposes, and to regulate their local government. As respects the administration of justice, it may establish one system of court's for cities and another for rural districts; one system for one portion of its territory and another system for another portion. Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right.
Under the Criminal, Procedure Code there are four different modes of procedure prescribed: (1) for the trial of summons cases, (2) for the trial of warrant cases, (3) for summary trials under Chapter XXII, and (4) for trials before High Courts and Courts of Session. The Code further defines carefully the power of different courts to try offences. Any offence under the Indian Penal Code may be tried by the High Court or by the Court of Session. In respect of other courts the powers of the courts are defined by column 8 of Schedule II appended to the Code. We find by reading this column that there are offences which are triable by the Presidency Magistrate or a Magistrate of the first class; for instance, one under Section 148; others that are triable by a Presidency Magistrate or a Magistrate of the first or second class; for example, an offence under Section 154 of the Indian Penal Code; and still others which are triable by any Magistrate; for instance, an offence under Section 160 of the Indian Penal Code.
A similar provision is made in this Schedule for the trial of offences under other laws. Where a special court is mentioned in the law, the offence shall be tried by that court; where no court is mentioned, it may be tried by the High Court, or, in the circumstances set out in column 2 of Schedule II, by (1) the Court of Session, or (2) the Court of Session, Presidency Magistrate or Magistrate of the first class, or (3) Court of Session, Presidency Magistrate or Magistrate of the first or second class, or (4) any Magistrate. As between the different courts empowered to try a particular offence, the choice between the courts must necessarily depend on judicial discretion.
In the first instance the discretion is to be exercised by the Sub-divisional Magistrate or the District Magistrate whose powers of transferring cases or for withdrawing cases from one Magistrate and making them over for trial by another Magistrate are defined in the Code. The Magistrates to whom the case is made over for trial have also been entrusted with certain amount of judicial discretion as to whether they will dispose of the case themselves or not, For instance, under Section 347, if in any enquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he Shall so commit the accused, and if he is not so empowered he shall proceed in the manner prescribed under Section 346, that is to say, he shall stay the proceedings and submit the case with a brief report to any Magistrate to whom he is subordinate or to such other Magistrate having jurisdiction as the District Magistrate directs, and the Magistrate to whom the case is submitted may, if so empowered, try the case himself or he may refer it to any Magistrate subordinate to him having jurisdiction, or he may commit the accused for trial.
In the district of Hazaribagh and in the other areas to which Section 30 of the Code applies, it has been enacted that in addition to the powers of trial as defined elsewhere in India, Magistrates empowered under Section 30 of the Code shall have power to try as Magistrates all offences not punishable with death. In respect of these offences, therefore, they retain the power which they are given under Section 347 to commit to the Court of Session any case which appears to them to be one which ought to be tried by that court. Under Section 34 a Magistrate specially empowered under Section 30 may pass any sentence authorised by law except a sentence of death or of transportation for a term exceeding seven years or imprisonment for a term exceeding seven years, that is to say, he has the same powers in this respect as an Assistant Sessions Judge under Sub-section (3) of Section 31 of the Code,
8. Under the provisions set out, in the areas to which Section 30 applies there is no difference between one person and another charged with offences under the same Section as regards their liability to be tried by a Magistrate under Section 30. It is in this sense that Das J. has observed that Section 30 is not in itself discriminatory,
9. I have stated above some of the reasons which to me appear to be behind this special provision for the backward areas. The provision that has been made is of very longstanding. Section 36 of the Code of Criminal Procedure, 1872 (Act X of 1872) ran as follows:
In the territories subject to the Lieutenant-Governor of the Punjab and in the territories administered by the Chief Commissioners of Oudh, the Central Provinces and British Burma, in Coorg, and in those parts of the other provinces in which there are Deputy Commissioners or Assistant Commissioners, the local Government may invest the Deputy Commissioner, or other Chief Officer charged with the executive administration of the district in criminal matters, with power to try as a Magistrate all offences not punishable with death, and to pass sentence of imprisonment for a term not exceeding seven years, including such solitary confinement as is authorized by law, or of fine, or of. whipping, or any combination of these punishments authorized by law; but any sentence of upwards of three years' imprisonment passed by any such officer shall be subject to the confirmation of the Sessions Judge to whom such Deputy Commissioner is subordinate. Such Sessions Judge may either confirm, modify or annul any sentence referred for confirmation.
The provision continued into the Code of Criminal Procedure, 1882 (Act X of 1882) in which Section 30 provided:
In the territories respectively administered by the Lieutenant-Governor of the Punjab and the Chief Commissioners of Oudh, the Central Provinces, British Burma, Coorg and Assam, and in those parts of the other Provinces in which there are Deputy Commissioners or Assistant Commissioners, the Local Government may, notwithstanding anything contained in Section 29, invest the District Magistrate with power to try as a Magistrate all offences not punishable with death and the provisions as to the powers of the Magistrate so empowered were contained in Section 34:
The Court of a District Magistrate specially empowered under Section 30 may pass any sentence of imprisonment for a term not exceeding seven years, including such solitary confinement as is authorized by law, or of fine, or of whipping, or of any combination of these punishments authorized by law.
But any sentence of imprisonment for a term exceeding three years passed by any such Court shall be subject to the confirmation of the Sessions Judge.
Sections 30 and 34 of the present Code substantially reproduce the previous provisions. It is no longer necessary that sentences of imprisonment exceeding a term of three years imposed by such a Magistrate should be con-finned by the Sessions Judge. The modification is of no importance since the order of conviction is itself open to appeal and it is extremely unlikely that a person convicted and sentenced to such a term of imprisonment will not avail himself of his right of appeal. Also under the present Code the larger powers may be conferred on any Magistrate of the first class, and not merely on the District Magistrate, or other chief officer charged with the executive administration of the district in criminal matters. This is a reflection of the general advance that has taken place since those days.
The number of matters to which the District Magistrate and the Sub-Divisional Magistrate, who are also the administrative heads of their respective charges, have to attend to, has increased and it is very seldom, that the District Magistrate himself tries any criminal case, and the Sub-Divisional Magistrate generally has one or more Magistrates of the first class under him and he himself tries a comparatively small number of cases. What the course of legislation shows is that throughout the long period from 1872 the legislature has considered it necessary that it should be possible in these backward areas to empower Magistrate of experience to try all cases of offences not punishable with death. In doing this the legislature was acting well within its powers of prescribing for the particular area under Consideration the different courts to exercise jurisdiction therein and of determining the extent of their jurisdiction and powers.
With regard to the cases that would come before the Magistrate under these provisions, the legislature provided that he Should try them as a Magistrate. This makes applicable to the trial of these offences the procedure applying for the trial of warrant cases. This is a procedure that has been prescribed by the Code for the trial of the more serious cases which ordinarily come before Magistrates, and although it is not so elaborate as the procedure prescribed for trials in the Sessions Court it contains all the safeguards necessary to ensure a fair trial.
10. It would appear from what I have said that the provisions contained in Section 30 are, on the face of them, fair and reasonable. There is no reason to regard them as hostile and discriminatory. On the contrary they appear to be designed with the needs of the areas affected in view. It is complained, however, that Hazaribagh is no longer a backward area and that it, is not included in the areas notified by the President of India as Scheduled Areas under clause C of the fifth Schedule to the Constitution of India. The fifth schedule contains provisions relating to the administration and control of areas declared as Scheduled Areas under this Schedule. Certain limitations are put upon the executive power of the State in regard to such areas. The Governor or the Rajpramukh of a State is required to make reports to the President regarding the administration of such areas and the executive power of the Union extends to the giving of directions to the State as to the administration of such areas.
A Tribes Advisory Council shall be established in respect of such areas for advising the Governor or the Kajpramukh in matters appertaining to the welfare and advancement of the Scheduled Tribes in the State. The Governor or the Rajpramukh, as the case may be, is empowered to exclude Acts of Parliament or of the Legislature of the State from applying to the Scheduled Area or to apply them to the Scheduled Area subject to exceptions and notifications specified by him. He has also power to legislate for the Scheduled Areas by means of regulations after consultation with the Tribes Advisory Council and with the assent of the President. The exclusion of Hazaribagh from the list of Scheduled Areas means at the most that it is not considered necessary for Hazaribagh to receive the special treatment and protection provided in the fifth schedule. It does not follow that Hazaribagh must be taken to be on the same level in all respects with the other parts of the State not included in the Scheduled Areas. It is for the executive and legislative authorities to decide whether the conditions which led to the enactment of the provisions contained in Sections 30 and 34 of the Code still exist in Hazaribagh or not.
11. It is next objected that the impugned provisions do not provide any criterion for the guidance of the Magistrates in deciding whether or not the case should be tried by the Magistrate or the Court of Session. There was no difficulty, it is conceded, so long as Hazaribagh was included within the Judicial Commissionership of Chota Nagpur and there was no Assistant Sessions Judge but only the Judicial Commissioner, exercising the powers of a Sessions Judge. At that time the gravity of the offence, a distinction recognized by the Code, furnished a sufficient guide. The difficulty arose, it is said, when Hazaribagh was made a separate judgeship and given a Sessions Judge of its own. It has now, got an Assistant Sessions Judge, whose powers of imposing sentences are exactly the same as those of the Magistrate exercising powers under Section 30. The decision as to which of the courts should hold the trial is in such circumstances left to the judicial discretion to be exercised on the facts of the particular case. This is not necessarily unconstitutional.
It is not possible for the legislature to anticipate and to legislate for all contingencies that may arise and in the ultimate analysis the decision as to the proper course to be taken in the particular circumstances of the case must be left to the decision of the officer or judge dealing with the case. The well known case of - Yick Wo v. Hopkins (1886) 118 US 356 (H) has been cited as an authority that an unregulated discretion entrusted to a State authority offends against the equality clause. In my judgment in - Kameshwar Singh v. State of Bihar AIR 1951 Pat 91 (SB) (I), I have endeavoured to show that this is not correct. I am supported in my conclusion by the observation made by Patanjali Sastri C. J. in the case of :
Thus explained, the 'Yick Wo case (H)', is no authority for the view that the vesting in a public authority of a discretion which is liable to abuse by arbitrary exercise contrary to its intendment is a sufficient ground for condemning a statute as discriminatory and unconstitutional.
In the case of 'Yick Wo (H)', Mathews J. in delivering the opinion of the court distinguished the statute under consideration from other statutes by which a discretion was entrusted in a public authority.
The ordinance, therefore, also differs from the not unusual case, where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns, or places for the sale of spirituous liquors, and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because in such cases the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature.
His Lordship was evidently prepared to consider as constitutional the vesting of discretionary power in public officers or bodies to-decide on the facts of each case whether the applicant is fit for the license applied for.
Brown v. State of New Jersey (1899) 175 US 172 (J) is a case in which the discretion was vested in a court to choose between two alternative modes of procedure. The statute under examination introduced into the State of New Jersey what is known as a "struck jury". When a rule for a struck jury was granted, the court on the motion of the prosecutor, or of the defendant, or of its own motion, was empowered to select from the persons qualified to serve as jurors in or for the county, whether the names of such persons appeared on the sheriff's book of persons qualified to Serve as jurors or not, ninety-six names, with their places of abode, from which the prosecutor and the defendant were permitted each to strike twenty-four names in the usual way. The remaining forty-eight names were then to her placed by the sheriff in the box, in the presence of the court, and from the names so placed in the box the jury was to be drawn in the usual way. Under Sections 80 and 81 of the statute, where there was no "struck jury" and the party was on trial for murder, he was entitled to twenty peremptory challenges and the State to twelve, but in the case of a "Struck jury" each party was allowed only five peremptory challenges.
Brewer J. in delivering the opinion of the court observed:
It is true that here there is no territorial distribution, but in all cases in which a struck jury is ordered the Same number of challenges is permitted, as similarly in all cases in which the trial is by an ordinary jury. Either party, State or defendant, may apply for a struck jury, and the matter is one which is determined by the court in the exercise of a sound discretion. There is no mere arbitrary power in this respect, any more than in the granting or refusing of a continuance. The fact that in one case the plaintiff or defendant is awarded a continuance and in another is refused does not make in either a denial of the equal protection of the laws. That in any given case the discretion of the court in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for consideration on appeal, but it amounts to nothing more.
Referring to this decision Mukherjea J observed in the case of :
That a judicial discretion has to be exercised on the basis of the facts of each case in the matter of granting the application for a struck jury does not really involve discrimination.
12. That a discretion given without any express guidance as to the principles on which it is to be exercised does not necessarily offend against the Constitution is also the view expressed by Patanjali Sastri C. J. in , vide paragraphs 13 and 14 of, the report. His Lordship there was speaking about local administrative bodies. If such discretion can legally be vested in administrative bodies, so much the more can it be legally vested in a court.
13. Sinha J. has conceded that if as a result of judicial discretion there is incidental inequality resulting from the operation of law, the provision contained in Article 14 of the Constitution will have no application.
He has, however, relied on an observation of the Supreme Court in the case of that if the Special Tribunal in that case had exercised the judicial discretion entrusted to it to adopt the procedure for a summary trial instead of that for the trial of a vyarrant case, they would have had no other alternative but to declare the whole trial invalid. With respect I would submit that in considering this case as well as the cases of it is necessary to keep in mind the nature of the legislation which was impugned. The Special Tribunals Regulation which was under examination in , established a special tribunal different from the ordinary courts of law known to the State. Neither the reject of the enactment nor the legislative policy behind it was specified and an unfettered discretion was vested in the Military Governor to send "any offence or class of offences" to be tried by the Special Tribunal and no objective was stated to guide the exercise of that discretion.
The ordinary procedure prescribed by the Hyderabad Criminal Procedure Code was modified apparently to shorten the trials before the Special Tribunal and to put the Special Tribunal in entire charge of the cases referred to it. $he Tribunal was to exercise the powers of a Sessions Judge. Under Section 4(1) it could take cognizance of offences without the accused being committed for trial. Under Sub-section (7) of Section 4 it was enjoined to follow the procedure prescribed for summary trials by Magistrates, though it was given discretion, when it considered it proper, to follow the warrant procedure. The Tribunal was not bound to take evidence at length and need only cause a memorandum of the substance of the deposition of each witness to be taken down. Here again, a discretion was given to it to direct that the entire evidence should be taken down. The Regulation further provided that the Tribunal would not be bound to adjourn the trial for any purpose, that there would be no 'de novo' trial if there was a change in the personnel tit the Tribunal and that the accused person might in certain circumstances be tried in his absence.
Appeal lay in the usual way against the orders of the Tribunal to the High Court as it lay against the orders of Sessions Court but powers of revision and transfer were wholly taken away. The Regulation, therefore, was entirely different from the statute which we are now considering. It constituted a new Tribunal and prescribed a new procedure which was substantially prejudicial to the accused in many respects and gave the Military Governor unfettered discretion to apply the Regulation to any offence or class of Offences. It was of the nature of legislation which has been described as in itself "hostile and discriminatory". Here, on the contrary, we are concerned with a statute which has not been enacted to deal with an emergency and whose sole object seems to be to make suitable provision for backward areas. In some respects it provides for a procedure which is different from that in the other parts of the State.
But the differences are based on reasonable grounds, and of the two alternative procedures provided for offences not punishable with death and not ordinarily triable by a Magistrate, both are the ordinary procedures in use in the State and they contain the usual safeguards for the protection of the interests of the accused and for ensuring a fair trial. In these circumstances I do not think that an exercise of judicial discretion which results in a person charged with an offence under Section 366 being tried by a Magistrate whereas other persons similarly charged are tried by the Court of Session can be said to be hit by the equality clause.
14. Fazl Ali J. observed in 'Anwar Ali Sarkar's case (B)':
In my opinion, the true position is as follows: As a general rule, if the Act is fair and good, the public authority who has to administer it will be protected. To this general rule, however, there is an exception, which comes into play when there is evidence of 'mala fides' in the application of the Act.
Said Stone C. J. in Snowden v. Hughes (1943) 321 US 1 (K):
The unlawful administration by State officers of a State statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not 6 denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.
Frankfurter J. concurring observed:
The Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the courts or the executive agencies of a State.
Here also we are concerned with a statute fair on its face and there is no suggestion that there has been any intentional or purposeful discrimination as against the appellants.
15. I have pointed out above that there are several modes of procedure prescribed in the Code for the trial of cases and that more courts than one are vested with jurisdiction to try offences under the same section; for in--I stance, an offence under Section 326 may be tried by the Court of Session or by a Magistrate of the first class. In answer to a question as to whether an accused person charged under this Section can complain of discrimination because he is tried by a Magistrate whereas another person charged under the same section is committed to the Court of Session, counsel for the appellants replied that provided the accused person gets the usual mode of trial, he cannot make it a grievance that some one else was luckier. Relying on a decision in - Narain Hazam v. Ramdhari Singh ; he urged, however, that cases which come to a Magistrate for trial under Section 30 of the Code are not cases "triable by a Magistrate" and, therefore, the accused can complain of discrimination.
Their Lordships in Criminal Revision No. 641 of 1952 were concerned with the meaning of the term "offence triable by a magistrate" as used in Section 250 of the Code, and the case is not in point here. The legislature in this particular area has prescribed that such cases may be tried by Magistrates empowered under Section 30 and this provision has been in existence since 1872. There is no reason to suppose that these sections have been in abeyance throughout this long period and, since an assistant Sessions Judge has been appointed for this area only in comparatively recent times, we can hardly say that a trial by a Magistrate empowered under Section 30 deprives the accused of the usual mode of trial.
16. Much stress has been laid before me on the case of 'A. I. R. 1952 SC 75 (B)', to which I have referred several times above. As I have observed, their Lordships were there concerned with a statute which is entirely different from the statute which is under examination here. The Act was stated in the preamble to be for providing for a speedier trial of certain offences. It established special courts for trial, for which courts it prescribed a procedure which departed in several important particulars from the established mode of trial in cases under the Criminal Procedure Code. The Tribunal was to exercise the powers of a Sessions Court. The trial was to be without jury or assessors and the committal procedure in sessions cases was eliminated. The Tribunal was given special powers to deal with refractory accused and a 'de novo' trial on the transfer of a case from one court to another was dispensed with. The liability to undergo the disadvantages attaching to a trial by the Tribunal was made to depend entirely on the unregulated will of the State Government. This was, on the face of it, hostile and discriminatory.
It was characterised as such by Mahajan, J. (paragraph 39 of the report) and Mukherjea, 3. pointed out that discrimination arose on the very terms of the Act (paragraph 50 of the report). It was for this reason that their tordships refused to draw the usual presumption in favour of the constitutionality of the impugned statute. Mukherjea, J. concluded Ms examination of the point in these words:
The question in each case would be: whether the characteristics of the class are such as to provide a rational justification for the differences introduced? Judged by this test, the answer in the present case should be in the negative; for the difference in the treatment rests here solely on arbitrary selection by the State Government. It is true that the presumption should always be that the legislature understands and correctly appreciates the needs of its own people and that its discriminations are based on adequate grounds: - Middleton v. Texas Power & Light Co. (1919) 249 US 152 (M)' but as was said by Brewer J. in - Gulf C. & S. F. R. Co. v. Ellis (1897) 165 US 150 (N) 'to carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation is to make the protection clauses of the Fourteenth Amendment a mere rope of sand'.
In other words, the statute was on the face of it discriminatory and the question of a presumption in its favour did not arise.
17. In the course of their decision in this case several of their Lordships observed that the necessity for a speedy trial cannot be a reasonable basis for a classification. It was sought to use these observations as a weapon against the constitutionality of Section 30 Again, the two statutes are not on a par. It was sought in that case to use the necessity for a speedy trial as a basis of classification between one offence and another or between one class of offences and another, and it was pointed out by Mahajan, J. that this is too vague and uncertain a criterion (paragraph 37 of the report). In the case before us the distinction attempted to be made is not between offences or classes of offences, but between one area where it is urgently desirable that there should be speedy trials and another area where it is not. I have tried to indicate above that for this purpose speed of trial may form a reasonable basis of classification and have also given reasons for thinking that this is not the only basis for the classification.
18. The statute which came under examination in the case of 'A. I. R. 1852 SC 233 (C)' introduced similar departures from the ordinary law of procedure as were introduced by the West Bengal Special Courts Act in the case of 'A. I. R. 1952 SC 75 (B)'; and as in that Act, here also the Special Judge was authorised to try such offences or class of offences, or such cases or class of cases as the Provincial Government, may, by general or special order in writing, direct.
The only difference between this case and that of 'A. I. R. 1952 SC 75 (B)' is that in this case cognizance of the offence was taken before the Constitution of India came into effect, and to the extent that the trial had proceeded before the date the trial was valid. After that date, further proceedings were hit by Article 14, and the continuation of the application of the discriminatory procedure to the trial constituted a breach of a fundamental right. Indeed, as observed by Das, J. in a sense the Special Judge's jurisdiction came to an end after that date, for he was enjoined to proceed only according to the special procedure and that procedure having become void under Article 13, Clause (1), he could not proceed at all with the case.
It is in this last respect that the case differs from the case of - . There a similar but not so drastic an enactment came under consideration and the Special Tribunal having been given a discretion to choose between alternative procedures chose a procedure which was not open to the objection of discrimination. These cases, as I have said already, are concerned with legislation which was on the face of it discriminatory and have no application here.
19. For the reasons I have given I agree with Das, J. that Sections 30 and 34 do not offend against Article 14 and are not invalid.
20. In the result the conviction of the appellants will be upheld but the sentence in> posed on them will be reduced to a term of imprisonment of two years in the case of each appellant.