AMIR PRASAD SINGH Vs. EMPEROR

JUDGEMENT

(1.) I have had the advant-age of reading the judgment about to be delivered by my learned brother and I agree with his views. As the principal question of law raised in this appeal is of some importance I propose to state my reasons. For the purposes of procedure the Criminal Procedure Code defines the word "offence" as meaning any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under Section 20, Cattle Trespass Act, 1871.

(2.) Some acts and omissions are made punish, able by the Indian Penal Code and others by various other legislative enactments. Section 28, Criminal P.C., specifies the Courts by which "offences under the Indian Penal Code" are to be tried, namely, (a) by the High Court, or (b) by the Court of Sessions, or (c) by any other Court by which such offence is shown in col. 8 of Schedule 2 to be triable. As regards an offence under any enactment other than the Indian Penal Code, this is triable, when any Court is specified in such enactment, by such Court. When no Court is specified it may be tried by the High Court or, subject to the provisions of the Code, by any Court constituted under the Code by which such offence is shown to be triable in col. 8 of Schedule 2 ( Section 29). The constitution of the Courts mentioned in Section 28, their jurisdiction and powers and the procedure to be followed by them are compendiously defined and described in the Code. The presiding officer of a Court of Session is the Sessions Judge and all original criminal cases triable in a Court of Sessions are triable either by jury or by a Judge assisted by assessors (Section 268). The Code does not contemplate that a case triable in the Court of Session shall be triable by the Sessions Judge alone, or authorise him to try such a case alone. In the case of a trial by a Judge with assessors there is an appeal on the facts but in the case of a trial by jury the verdict is appealable only on a matter of law ( Section 418). The legislative authority may amend or rescind the Code in whole or in part and, in doing so, or by separate enactment, create other Courts, bar the jurisdiction of the existing Courts to try all or any of the offences referred to in Secs.28 and 29, or direct that those Courts and other Courts shall have concurrent jurisdiction to try all or any of those offences, and alter the procedure to be followed in the existing Courts, prescribe the procedure to be follow, ed in other Courts, and abolish or restrict the right of appeal and revision conferred against decisions of the existing Courts.

(3.) Section 72 of Schedule 9, Constitution Act of 1935 empowers the Governor. General to legislate by Ordinance in the event of an emergency. On 2nd January 1942, the Governor. General made and promulgated the Special Criminal Courts Ordinance (2 of 1942) reciting that an emergency had arisen which made it necessary to provide for the setting up of Special Criminal Courts. As originally promulgated Section 1(3) declared that this Ordinance should come into operation only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India, or from the imminence of such an attack, by notification in the official Gazette, declared it to be in force in the Province. This was subsequently amended by Ordinance 42 of 1942 to include an emergency arising from internal disturbances. The original Ordinance constituted three classes of Courts, namely, Special Judges, Special Magistrates and Summary Courts ( Section 8), and prescribed the qualifications ( Secs.4, 9 and 15), jurisdiction ( Secs.5, 10 and 16), procedure ( Secs.6, 11 and 17) of each of them and the sentences ( Secs.7, 12 and 18) which each was empowered to pass. In certain cases triable by a Summary Court an appeal was provided for to the Special Magistrate or other Magistrate of the first class appointed by the District Magistrate ( Section 19) and in certain cases triable by the Special Magistrate provision was made for an appeal to the Special Judge ( Section 13). No appeal was provided for from a decision of the Special Judge, but provision was made for the proceedings to be reviewed by a person nominated in this behalf by the Provincial Government from the Judges of the High Court, whose decision was declared to be final ( Section 8). Interference with the decisions of the Special Courts, otherwise than as mentioned above, was excluded by Section 26. This effectively debarred the High Court from making an order under Section 491 of the Code in the nature of a writ of habeas corpus.