- (1.) The appellant was a Deputy Controller under the Ministry of Mines and Fuel, Government of India. He is being tried in a criminal case being Case No.2 of 1964 of the Additional Special Court, Calcutta on charges under S. 5(2) of the Prevention of Corruption Act and S. 120B read with Ss. 161 and 165 of the Indian Penal Code. The Additional Special Court in which the appellant is having his trial has been constituted under S. 2 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, hereinafter referred to as the Act. From time to time, the Presiding Officer of that Court was appointed. By a notification No.117-J dated January 7, 1974, the Government of West Bengal appointed Shri H. Kar as a Judge of the Additional Special Court, Calcutta under sub-s. (2) of S. 2 read with sub-s. (1) of S. 9 of the Act.
(2.) The appellant moved a writ petition challenging the constitutional validity of sub-s. (2) of S. 2 of the Act under which the said Shri H. Kar was appointed. A Rule Nisi was issued on that petition. It was contended on behalf of the appellant that sub-s. (2) of S. 2 was ultra vires the provision of Article 233(1) of the Constitution of India. The Rule was heard by A. K. Mookerji J and his Lordship by his judgment dated May 19, 1977 held that the question of ultra vires of S. 2 of the Act did not arise. In that view of the mater, he discharged the Rule. Hence, this appeal.
(3.) Mr. Banerjee, learned Advocate appearing on behalf of the appellant has strenuously urged before us that the learned Judge had no jurisdiction to determine the question of constitutional validity of sub-s. (2) of S. 2 of the Act. It is contended by him that in view of Article 228A of the Constitution as incorporated therein by the Constitution (Forty-Second Amendment) Act, 1976, the learned Judge should have referred the matter to a Bench of five Judges of this Court for the determination of that question. In order to consider the contentions made on behalf of the appellant, it is necessary to refer to Article 228A which is as follows: 228A. (1) No High Court shall have jurisdiction to declare any Central law to be constitutionally invalid. (2) Subject to the provisions of article 131A, the High Court may determine all questions relating to the constitutional validity of any State law. (3) The minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law shall be five. Provided that where the High Court consists of less than five Judges, all the Judges of the High Court may sit and determine such question. (4) A State law shall not be declared to be constitutionally invalid by the High Court unless - (a) where the High Court consists of five Judges or more, not less than two-thirds of the Judges sitting for the purpose of determining the validity of such law, hold it to be constitutionally invalid; and (b) where the High Court consists of less than five Judges, all the Judges of the High Court sitting for the purpose hold it to be constitutionally invalid. (5) The provisions of this article shall have effect notwithstanding anything contained in this Part. Explanation: In computing the number of Judges of a High Court for the purpose of this article, a Judge who is disqualified by reason of personal or pecuniary bias shall be excluded.;