Mitter, J. - (1.) In this appeal by special leave the appellant impugn the West Bengal Criminal Law Amendment (Special Courts) Amending and Validating Ordinance, 1965 as also Act XXVIII of 1965 which replaced the Ordinance.
(2.) The facts are as follows. Eighty one persoa including the appellant had been charged with offences under Sections 120-B, 417 and 409 I. P. C. By notification dated December 8, 1959 (West Bengal Criminal Law Amendment (Special Courts Act. 1949) the State Government distributed the case of the said accused persons to the Calcutta Special Court for trial. On account of the proceedings taken in the write jurisdiction of the High Court the trial could not be proceeded with. On 1st October, 1962 the State Government constituted a Special Court known as the Fourth Additional Special Court under Section 2 of Act XXI of 1949 and by another order of October 16, 1962 the State Government superseded the earlier order of December 8, 1959 and re-allotted the case to the Fourth Additional Special Court. The appellant Mahal Chand Sethia, challenged the order of re-allotment by a writ petition filed on 11th January. 1963 which was summarily dismissed by a single Judge. The appellate Court directed a rule to issue and that rule was made absolute by a single Judge on September 2, 1964 on the finding that the order of re allotment was bad. The Judge ordered that a writ in the nature of certiorari be issued quashing the notification dated October 16, 1962 in so far as the appellant was concerned and a writ of mandamus prohibiting the respondents from continuing the proceedings under the said notification against the appellant. Immediately after the passing of the order by the learned single Judge the west Bengal Criminal Law (Amendment) (Special Courts) Amending Act XIV of 1954 was passed and a new sub-section, viz; Sub-section (3) was appended to Section 4 of the 1949 Act. By this Act the State Government was authorised to withdraw any case from any Special Court and transfer the same to any other Special Court for disposal provided the special Court from which the case was transferred had not taken cognizance of the offence for which the accused were to be tried. In appeal from the order of the learned single Judge dated September 2, 1964 it was argued on behalf of the State that in view of the amended provisions, Section 4(3) of the Act, the appeal ought to be allowed. This contention was however negatived on a finding that the appellant had failed to establish that the Calcutta Special Court to which the case had been originally allotted had not taken cognizance of the offences for which the accused were to be tried. A review petition filed therefrom was also unsuccessful. But during the pendency of this review petition the Governor of West Bengal issued Ordinance VIII of 1965 on September 20, 1965 purporting to amend Section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 by deletion of old Sub-section (3) and the insertion of a new Sub-section (3) thereto reading: "If at any time the State Government thinks fit to do so, it may withdraw any case from any Special Court and transfer the same to any other Special Court for disposal;" In terms of Section 2 of the Ordinance this new sub section "shall be and shall be deemed to have always been substituted" for the old sub-section. Section 3 of the ordinance provided that: "Notwithstanding anything to the contrary contained in any judgment, decree or order of any court or tribunal, where the State Government has withdrawn any case under the said Act from a Special Court before the commencement of this Ordinance, whether or not the offence in such case has been taken cognizance of by the Special Court, and has transferred the same for disposal to any other Special Court, the withdrawal or transfer of such case shall be and shall be deemed to have always been validly made, as if this Ordinance was in force at the time when such withdrawal or transfer was made, and the Special Court to which the case has been so transferred by the State Government shall have and shall be deemed to have always had jurisdiction to try the case." The Review Petition was thereafter withdrawn. On November 24, 1965 the Special Prosecutor presented an application before the Fourth Additional Special Court requesting it to proceed against all the 81 persons in view of the validation of the withdrawal under the Ordinance. On December 11, 1965 Act XXVIII was passed to replace the Ordinance. The Fourth Additional Special Judge held that the Validating Ordinance and the Act merely validated the law of withdrawal or transfer of a case from a Special Court but could not invalidate a judgment or adjudication inter parties which must remain unaffected even though the effect of the judgment as a precedent may go. Against this order a criminal revision petition was filed in the High Court which was disposed of on September 2, 1968, the High Court holding that in view of the retrospective operation of the Ordinance and the Act the original order of transfer was validated from the date when it was made.
(3.) The argument of counsel for the appellant was that although it was open to the State Legislature by an Act and the Governor by an Ordinance to amend the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 it was incompetent for either of them to validate an order of transfer which had already been quashed by the issue of a writ of certiorari by the High Court and the older of transfer being virtually dead, could not be resuscitated by the Governor or Legislature and the validating measures could not touch any adjudication by the Court.;