Decided on December 19,1946

KING-EMPEROR Respondents

Referred Judgements :-



Wright, J. - (1.)AT the conclusion of the arguments in this appeal, their Lordships expressed their opinion that the appeal should be dismissed and stated that they would give their reasons later. This they now proceed to do.
(2.)THIS is an appeal from the judgment of Mr. Justice Dunkley, Acting Chief Justice of the High Court of Rangoon, dated March 26, 1946, in which he reviewed and confirmed a judgment given on February 25, 1946, by U. Kyaw U, a Special Judge appointed under the Special Judges Act, 1943 (Burma Act No. X of 1943) for Rangoon Town District. The said Special Judge had convicted the appellant under Section 802 of the Indian Penal Code and sentenced him to death. THIS sentence was confirmed by the High Court.
The appellant petitioned His Majesty in Council for special leave to appeal both on the merits and on the question of the jurisdiction of the Special Judge. His submission on the latter point was that the Special Judge had no jurisdiction to try him and that the whole of the proceedings in his trial were illegal and void. Special leave to appeal was granted by Order in Council dated October 28, 1946, solely on the question of the jurisdiction of the Special Judge.

The Special Judges Act (Burma Act No. X of 1943) was an emergency and temporary Act enacted by the Governor of Burma at a time when the Japanese forces had occupied and taken military control of Burma, including Rangoon. The Act was in fact promulgated in Simla, to which place the Governor and the Government of Burma had retired during the hostile occupation. The preamble to the Act may usefully here be quoted : Whereas it is expedient to provide for the appointment of Special Judges for the trial of offences during the present emergency, and to define their jurisdiction and powers; And whereas by Proclamation dated the tenth day of December, 1942, the Governor of Burma has assumed to himself all powers vested by or under the Government of Burma Act, 1885, in the Legislature or in either Chamber thereof ;

(3.)THE Act gave the Governor power to appoint in any area to which the Act extends a Special Judge for the trial of accused persons under the Act. It defined among other things the requisite qualifications which a Special Judge had to possess. THE Special Judge was empowered to try any offence punishable under any law for the time being in force and to pass any sentence authorised by law and to take cognisance of offences without the accused having been committed for trial. THE Special Judge was given wide discretion as to the conduct of the trial. THEre was to be no appeal by a convicted person and no application for revision was to be entertained by any Court. THE only provision for any revision was in the case of a death sentence, which was to be submitted for review by a Judge of the High Court nominated by the Governor. That Judge's decision was to be final. THEre were other provisions of the Act departing from the procedure prescribed by the Code, but subject to all these provisions, the Code and any other law for the time being in force, so far as applicable, were to apply to the trials before a Special Judge appointed under the Act. Legal proceedings in respect of anything done or intended to be done in good faith under the Act were barred.
It was under this Act that the Judge who tried the appellant was appointed and under this Act that all the proceedings took place. The Act had been duly notified so that according to its tenor it came into force in Rangoon and was in force at the material time, having been duly extended from time to time by Resolutions of both Houses of Parliament. The appellant however claimed that the Special Act was wholly illegal and void and accordingly that his conviction and sentence should be set aside as having been coram non judice. In order to examine this contention it will be necessary to refer as briefly as possible to the legal position of the Courts in Burma.


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