http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 28  

PETITIONER: KATHI RANING RAWAT

       Vs.

RESPONDENT: THE STATE OF SAURASHTRA.

DATE OF JUDGMENT: 27/02/1952

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN

CITATION:  1952 AIR  123            1952 SCR  435  CITATOR INFO :  R          1952 SC 235  (10,18,22)  R          1953 SC  10  (22)  MV         1953 SC 156  (29)  R          1953 SC 404  (11)  RF         1954 SC 424  (19)  R          1955 SC 191  (5)  R          1956 SC 246  (65,69)  F          1957 SC 503  (16)  R          1957 SC 877  (16)  D          1957 SC 927  (9)  R          1958 SC 538  (11,12,13,17)  RF         1958 SC 578  (211)  RF         1959 SC 725  (12)  F          1960 SC 457  (15)  R          1961 SC 554  (15)  R          1961 SC1602  (12)  R          1963 SC 806  (5)  RF         1964 SC 370  (6)  RF         1970 SC 564  (192)  RF         1974 SC1389  (251)  RF         1974 SC1660  (48)  R          1974 SC2009  (8,10,11,13,14,15,29,30,35,36)  F          1974 SC2044  (3)  R          1978 SC  68  (130)  R          1978 SC 597  (55)  R          1979 SC 478  (64,66,67)  R          1980 SC1382  (81)  R          1981 SC 379  (62)  R          1981 SC1829  (28,106)  R          1988 SC1531  (163)  D          1990 SC 560  (17)  C          1990 SC 820  (24)

ACT:     Saurashtra  State Public Safety (Third Amendment)  Ordi- nance (LXVI of 1949), ss. 9, 10, 11--Law empowering State to constitute  Special  Courts to try special  classes  of  of- fences--Constitutional validity--Contravention of  fundamen- tal  right to equal protection of laws--Essentials of  valid

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 28  

classification--Delegation of legislative  powers--Constitu- tion of India, arts. 13, 14.

HEADNOTE:     The Saurashtra State Public  Safety  Measures Ordinance, 1948, was passed "to provide for public safety,  maintenance of  public order and preservation of peace and  tranquillity in  the State of Saurashtra."  As crimes involving  violence such  as dacoity and murder were increasing, this  Ordinance was  amended by the Saurashtra State Public Safety  Measures (Third Amendment) Ordinance, 1949, which, by secs. 9, 10 and 11,  empowered the State Government by notification  in  the official  gazette to constitute Special Courts  of  criminal Jurisdiction for such area as may be specified in the  noti- fication,  to  appoint Special Judges to preside  over  such Courts  and  to invest them with jurisdiction  to  try  such offences or classes of offences or such eases or classes  of cases as the Government may, by general or special order  in writing, direct.  The procedure laid down by 436 the  Ordinance for trial before such Courts varied from  the normal  procedure prescribed by the Criminal Procedure  Code in two  material respects, viz., there was no provision  for trial  by jury or with the aid of assessors, or for  enquiry before  commitment to sessions.  In exercise of  the  powers conferred  by this Ordinance the Government, by a  notifica- tion,  constituted  a Special Court for  certain  areas  and empowered  that Court to try offences under sees. 183,  189, 302, 304, 307, 392 and certain other sections of the  Indian Penal Code which were specified in the notification.   It  was contended on behalf of the appellant who had  been convicted by the Special Court under secs. 302, 307 and  392 of  the Indian Penal Code read with sec. 34, that the  Ordi- nance  of 1949 and the notification above-mentioned  contra- vened  Art. 14 of the Constitution and were therefore  ultra vires and void:     Held, per PATANJALI SASTRI C.J, FAZL ALI, MUKHERJEA  and DAS JJ.--(MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and  Bose JJ. dissenting)--That the impugned Ordinance in so far as it authorised the State Government to direct offences or class- es  of offences or classes of cases to be tried by the  Spe- cial Court did not contravene the provisions of Art. 14  and was not ultra vires or void.  The notification issued  under the Ordinance was also not void.     PATANJALI  SASTRI C.J.-- All legislative  differentation is not necessarily discriminatory.  Discrimination  involves an  element  of unfavourable bias, and it is in  that  sense that  the  expression has to be understood in  the  context. Equal protection claims under Art. 14 are examined with  the presumption that the State action is reasonable and.  justi- fied.   Though differing procedures might involve  disparity in treatment of persons tried under them, such disparity  is not.  in itself sufficient to outweigh this presumption  and establish discrimation  unless the degree of disparity  goes beyond what the reason for its existence demands, e.g., when it  amounts to a denial of a fair and impartial trial.   The impugned Ordinance having been passed to combat the increas- ing  tempo of certain types of regional crime, the  two-fold classification on the lines of type and territory adopted by the said Ordinance read with the notification issued  there- under was reasonable, and the degree of disparity of  treat- ment involved was in no way in excess of what the  situation demanded.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 28  

     While  on  the  one hand it cannot be  said  that  any variation  of  procedure which operates  materially  to  the disadvantage  of the accused is discriminatory and  violates Art.  14,  the other extreme view that Art. 14  provides  no further  constitutional protection to personal liberty  than what is afforded by Art. 21 is also wrong,     FAZL  ALI J.--A distinction must be drawn between  "dis- crimination without reason" and "discrimination with reason" 437 The  whole doctrine of classification is based on this  dis- tinction  and on the well-known fact that the  circumstances which  govern one set of persons or objects may  not  neces- sarily be the same as those governing another set of persons or  objects so that the question of unequal  treatment  does not  really arise as between persons governed  by  different conditions  and different sets of circumstances.  The  clear recital of a definite objective in the earlier Ordinance and the impugned Ordinance which amended it, furnished a  tangi- ble  and rational basis of classification and the  Ordinance and the notification did not violate Art. 14. [The  Legisla- ture  should however have recourse to legislation like  this only in very special circumstances.]       MUKHERJEA  J.--Where the legislative policy  is  clear and definite and as an effective method of carrying out that policy  a discretion is vested by the statute upon a body of administrators or officers to make selective application  of the law to certain classes or groups of persons, the statute itself  cannot  be condemned as a  piece  of  discriminatory legislation.   In such cases, the power given to the  execu- tive body would import a duty on it to classify the  subject matter  of  legislation  in accordance  with  the  objective indicated  in the statute.  If the administrative body  pro- ceeds to classify persons or things on a basis which has  no rational  relation to the objective of the legislature,  its action  can certainly be annulled as offending  against  the equal protection clause.     The  preamble of the main Ordinance (IX of  1948)  taken along  with the surrounding circumstances disclosed a  defi- nite  legislative  policy and objective,  and  the  impugned Ordinance  cannot therefore be held to  be  unconstitutional merely because it vested in the Government the authority  to constitute  Special  Courts  and  to  specify  the   classes of,offences  to  be  tried by such courts  with  a  view  to achieve  that  objective.  The notification  issued  by  the Government  was also not void as it did not proceed  on  any unreasonable or arbitrary basis but on the other hand  there was  a reasonable relation between the  classification  made b.y the notification and the objective that the  legislation had in view.     Though  it  is a sound and reasonable  proposition  that when  the nature of two offences is intrinsically  the  same and they are punishable in the same manner, a person accused of  one  should  not be treated differently  from  a  person accused of the other, yet in determining the reach and scope of  a  particular legislation it is not  necessary  for  the legislature  to  provide  abstract symmetry.   A  too  rigid insistence  on  anything like scientific  classification  is neither practicable nor desirable.     DAS J.--The relevant part of sec. 11 properly  construed and understood does not confer an uncontrolled and  unguided power on the State Government;  on  the contrary, the  power is controlled by the necessity of making a proper  classifi- cation 438 which is to be guided by the preamble in the sense that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 28  

classification  must have a rational relation to the  object of the Ordinance as recited in the preamble. The classifica- tion effected by the impugned Ordinance and the notification thus  satisfied  the two conditions necessary  for  a  valid classification, viz., that it must not be arbitrary but must be rounded on an intelligible differentia, and that  differ- entia must have a rational relation to the object sought  to be  achieved by the Act. The Ordinance and the  notification did not therefore contravene Art. 14 of the Constitution.     MAHAJAN  J.--Section  11 of the  Ordinance  suggests  no reasonable  basis  for classification either in  respect  of offences  or in respect of cases, nor has it laid  down  any measure for the grouping either of persons or of cases or of offences,  by  which measure these groups could  be  distin- guished  from  those outside the purview of  the  Ordinance. The words used in the preamble to the main Ordinance and the fact that sec. 9 of the impugned Ordinance provides that the power can be exercised for any particular area cannot  limit the plain and unambiguous language of sec. 11, and the  said section is therefore unconstitutional.      CHANDRASEKHARA  AIYAR J.--Sections 9 and 11 do not  lay down any classification.  The preamble to the earlier  Ordi- nance also indicates no classification as the object  stated there is a general one which has to be kept in view by every enlightened  Government  or system of  administration.   The classification  adopted  in the notification also is  not  a rational one.     BOSE  J.--The differentiation effected by  the  impugned Ordinance  and  the notification issued  thereunder  travels beyond bounds which are legitimate and the Ordinance  there- fore offends Art. 14 and is invalid.      Held  also, per curiam, that the Ordinance was not  in- valid on the ground that it involved delegation of  legisla- tive powers.     The   State   of  West   Bengal   v.  Anwar  Ali  Sarkar ([1952]  S.C.R.  284),  In re Delhi  Laws  Act,  1912,  etc. ([1951] S.C.R. 7471 and King Emperor v. Benoarilal Sarma [72 I.A. 57] referred to.

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal  No. 15 of 1951.     Appeal under Arts. 132(1) and 134(1)(c) of the Constitu- tion  of India against  the  Judgment and Order  dated  28th February,  1951, of the High Court of Saurashtra  at  Rajkot (Shah  C.J. and Chhatpar J.) in Criminal Appeal No.  162  of 1950,  The material facts appear in the Judgment.   S.L.  Chibber (amicus curia ), for the appellant, B.  Sen, for the respondent. 439     1952.   February  27.   The   following  Judgments  were delivered.     PATANJALI  SASTRI  C.J.--This  appeal  raises  questions under article 14 of the Constitution more or less similar to those dealt with by this Court in Criminal Appeal No.  297  of  1951, The State of West Bengal  v.  Anwar  Ali Sarkar(1),  and it was heard in part along with that  appeal but was adjourned to enable the respondent State to file  an affidavit  explaining  the circumstances which  led  to  the enactment  of  the Saurashtra State Public  Safety  Measures (Third   Amendment)  Ordinance,  1949 (No.  XLVI  of  1949), hereinafter referred to as the impugned Ordinance.       As  in the West Bengal case, the jurisdiction  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 28  

Special  Court  of Criminal Jurisdiction,  which  tried  and convicted  the appellant, was challenged on the ground  that the impugned Ordinance, under which the Court was constitut- ed, was discriminatory and void. The Objection was overruled by  the Special Judge as well as by the High Court  of  Sau- rashtra on appeal and the appellant now seeks a decision  of this Court on the point.     The impugned Ordinance purports to amend the  Saurashtra State  Public  Safety Measures Ordinance (No.  IX  of  1948) which had been passed "to provide for public safety, mainte- nance  of public order and preservation of peace  and  tran- quillity  in the State of Saurashtra", by the  insertion  of sections  7 to 18 which deal with the establishment of  Spe- cial Courts of criminal jurisdiction in certain areas to try certain classes of offences in accordance with a  simplified and  shortened  procedure. Section 9 empowers the  State  by notification to constitute Special Courts for such ’areas as may be specified in the notification and section 10 provides for  appointment  of  Special Judges to  preside  over  such courts.  Section 11 enacts that the Special Judge shall  try "such  offences  or classes of offences  or  such  cases  or classes  of  cases  as the Government may,  by  general   or special  order in writing; direct",  (1) Since reported as [1952] S.C.R. 284. 57      57 440 Then follow provisions prescribing the procedure  applicable to  the trial  of  such  offences.  The only  variations  in such procedure from the normal procedure in criminal  trials in  the State consist of the abolition of trial by  jury  or with the aid of assessors and the elimination of the inquiry before commitment in sessions cases.  Even under the  normal procedure trial by jury is not compulsory unless the Govern- ment so directs (sections 268 and 269 (1)). while  assessors are not really members of the court and their opinion is not binding  on the judge with whom the responsibility  for  the decision  rests.  Nor  can the commitment  proceeding  in  a sessions  case be said to be an essential requirement  of  a fair  and  impartial,  trial, though  its  dispensation  may involve  the  deprivation  of certain  advantages  which  an accused person may otherwise enjoy. Thus the variations from the  normal procedure are by no means calculated to  imperil the chances of a fair and impartial trial.      In  exercise of the power conferred by sections  9,  10 and 11, the Government issued the notification No.  H/35-5-C dated  9/11 February, 1950, directing that a  Special  Court shall  be constituted for certain special areas and that  it shall try certain specified offences which included offences under sections 302, 307 and 392 read with section 34 of  the Indian  Penal Code (as adapted and applied to the  State  of Saurashtra)  for which the appellant was convicted and  sen- tenced.      It is contended on behalf of the appellant that section 11 and the notification referred to above are discriminatory in  that the offences alleged to have been committed by  the appellant  within  the specified areas are  required  to  be tried  by  the Special Judge under  the  special  procedure, while any person committing the same offences outside  those areas would be tried by the ordinary courts under the  ordi- nary  procedure. It is also urged that sections 9 and 11  by empowering the State Government to establish a Special Court and  to  direct  it to try under a  special  procedure  such offences  as may be notified by the Government,  in  effect, authorise the Government to 441

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 28  

amend section 5 of the Criminal Procedure Code read with the Second  Schedule  (as adapted and applied to  the  State  of Saurashtra),  which  provides that "all offences  under  the Indian  Penal  Code shall be  investigated,  enquired  into, tried  and otherwise dealt with according to the  provisions hereinafter contained", and that delegation of such power to the  executive  Government was beyond the  competence  of  a legislature and was, therefore, void.      On  the first point, many of the  considerations  which weighed  with me in upholding the constitutionality of  sec- tion  5 (1) of the West Bengal Special Courts Act, which  is in  identical  terms with section 11 of  the  impugned  Act, apply a fortiori to the present case.  The West Bengal  case (1)  arose  out of a reference by the  State  Government  of certain individual cases to the Special Court for trial  and 1  there expressed the view that it was wrong to think  that classification was something that must somehow be discovera- ble in every piece of legislation or it would not be  legis- lation. That way of regarding classification, I pointed out, tended  only to obscure the real nature of the problems  for which we have to find solution.  In the present case, howev- er,  the  State Government referred not  certain  individual cases  but  offences of certain kinds committed  in  certain areas and so the objection as to discriminatory treatment is more  easily answered on the line of reasoning indicated  in my judgment in the West Bengal case (1).  Again, the  varia- tions  from the normal procedure authorised by the  impugned Ordinance  are  less disadvantageous to  the  persons  tried before the Special Court than under the West Bengal Act.  It was,  however,  said that any variation in  procedure  which operates materially to the disadvantage of such persons  was discriminatory  and  violative of article 14. On  the  other hand,  it  was contended on behalf of the  respondent  State that,  in the field of personal liberty, the only  constitu- tional  safeguards  were those  specifically.   provided  in articles 20 to 22, and ’this Court having held in (1) [1952] S.C.R.284. 442 Gopalan’s  case  (1) that any procedure  prescribed  by  law satisfies  the requirements of article 21 (the only  article relevant  here)  the impugned Ordinance which  prescribes  a special  procedure for trial of offences falling within  its ambit  could not be held to be  unconstitutional.   Reliance was  placed on a decision of a Full Bench of  the  Hyderabad High  Court (Abdur Rahim and others v. Joseph A. ’Pinto  and others (2) which seems to lend some support to this view.  I am,  however, of opinion that neither of these extreme  con- tentions is sound.     All legislative differentiation is not necessarily  dis- criminatory.  In  fact, the word "discrimination"  does  not occur in article 14.  The expression "discriminate  against" is used in article 15 (1) and article. 16(2), and it  means, according  to  the Oxford Dictionary, "to  make  an  adverse distinction with regard to; to distinguish unfavourably from others".   Discrimination thus involves an element of  unfa- vourable  bias and it is in that sense that  the  expression has  to  be  understood in this context.  If  such  bias  is disclosed  and is based on any of the grounds  mentioned  in articles  15 and 16, it may well be that the  statute  will, without  more,  incur condemnation as violating  a  specific constitutional  prohibition  unless it is saved  by  one  or other  of the provisos to those articles.  But the  position under  article  14 is different.   Equal  protection  claims under  that article are examined with the  presumption  that the   State action is reasonable and justified.   This  pre-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 28  

sumption  of constitutionality stems from the wide power  of classification  which  the legislature must,  of  necessity, possess  in  making laws operating  differently  as  regards different  groups of persons in order to give effect to  its policies.   The  power  of the State  to  regulate  criminal trials  by  constituting  different  courts  with  different procedures according to the needs of different parts of  its territory  is an essential part of its police power-- (cf. Missouri v. Lewis)(3). Though the differing (1) [1950] S.C.R. 88.                     (3) 101 U.S.22 (2) A.I.R. 1951 Hyderabad ll. 443 procedures  might involve disparity in the treatment of  the persons  tried under them, such disparity is not  by  itself sufficient,  in my opinion, to outweigh the presumption  and establish discrimination unless the degree of disparity goes beyond  what the  reason for its existence demands  as,  for instance,  when it amounts to a denial of a fair and  impar- tial trial. It is, therefore, not correct to say that  arti- cle  14  provides no further  constitutional  protection  to personal  liberty  than  what is  afforded  by  article  21. Notwithstanding  that its wide general language  is  greatly qualified in its practical application by a due  recognition of the State’s necessarily wide powers of legislative  clas- sification, article 14 remains an important bulwark  against discriminatory procedural laws.       In the present case, the affidavit filed on behalf  of the  respondent  State by one of  its  responsible  officers states facts and figures relating to  an  increasing  number of  incidents of looting, robbery, dacoity, nosecutting  and murder by marauding gangs of dacoits in certain areas of the State, and these details support the claim that "the securi- ty  of the State and public peace were jeopardised and  that it  became  impossible to deal with the offences  that  were committed  in  different places in separate  courts  of  law expeditiously." The statement concludes by pointing out that the areas specified in the notification were the "main zones of  the activities of the dacoits as mentioned  above."  The impugned  Ordinance having thus been passed to  combat   the increasing  tempo of certain  types of regional  crime,  the two-fold  classification on the lines of type and  territory adopted  in  the  impugned Ordinance, read with the  notifi- cation  issued  thereunder, is, in my view,  reasonable  and valid, and the degree of disparity of treatment involved  is in no way in excess of what the situation demanded.     On  the  second point, the appellant’s  learned  counsel claimed that the majority view in In re The Delhi Laws  Act, 1912, etc.(1) supported his contention. He attempted to make this out by piecing together certain dicta (1) [1951] S.C.R. 747. 444 found in the several judgments delivered in that case. While undoubtedly certain definite conclusions were reached by the majority  of  the Judges who took part in  the  decision  in regard to the constitutionality of certain specified  enact- ments,  the reasoning in each case was different and  it  is difficult to say that any particular principle has been laid down  by  the  majority which can be of  assistance  in  the determination  of  other cases.  I have there  expressed  my view that legislatures in this country have plenary authori- ty  to  delegate  their power to make  laws  to  subordinate agencies of their choice and such delegation, however  inex- pedient  or  undesirable  politically,  is  constitutionally competent.  I accordingly reject this contention. It follows that the Special Judge had jurisdiction to try the appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 28  

and the persons accused along with him.      As  the majority concur in overruling  the  preliminary objection the appeal will be heard on the merits.     FAZL  ALI  J.--This  is an appeal by  one  Kathi  Raning Rawat,  who has been convicted under sections 302,  307  and 392.  read  with  section 34 of the Indian  Penal  Code  and sentenced  to death and to seven years’  rigorous  imprison- ment.  The appellant was tried by a Special Court constitut- ed  under the Saurashtra State Public Safety  Measures(Third Amendment)  Ordinance,  1949 (Ordinance No. LXVI  of  1949), which was issued by the Rajpramukh of Saurashtra on the  2nd November, 1949, and his conviction and sentence were  upheld on  appeal  by the State High Court.  He  has  preferred  an appeal to this Court against the decision of the High Court.     The  principal question which arises in this  appeal  is whether  the Ordinance to which reference has been  made  is void  under article 13(1) of the Constitution on the  ground that  it violates the provisions of article 14.  It  appears that  on the 5th April, 1948, the Rajpramukh  of  Saurashtra State  promulgated  an Ordinance called the Criminal  Proce- dure Code, 1898 (Adaptation) Ordinance, 1948 (Ordinance  No. XII of 445 1948), by which "the Criminal Procedure Code of the Dominion of  India  as in force in that Dominion on the  1st  day  of April, 1948" was made applicable to the State of  Saurashtra with  certain  modifications.  In the  same  month,  another Ordinance called the Saurashtra State Public Safety Measures Ordinance (Ordinance No. IX of 1948) was promulgated,  which provided  among  other things for the detention  of  persons acting in a manner prejudicial to public safety, maintenance of  public  order and peace and tranquillity in  the  State. Subsequently, on the 5th November, 1949, the Ordinance  with which we are concerned, namely, the Saurashtra State  Public Safety  Measures  (Third  Amendment)  Ordinance,  1949,  was promulgated, which purported to amend the previous Ordinance by  inserting in it certain provisions which may  be  summa- rised as follows :--     Section 9 of the Ordinance empowers the State Government by  notification in the Official Gazette to constitute  Spe- cial Courts of criminal jurisdiction for such area as may be specified  in the notification. Section 11 provides  that  a Special Judge shall try such offences or classes of offences or  such cases or classes of cases as the  State  Government may,  by general or special order in writing, direct.   Sec- tions 12 to 18 lay down the procedure for the trial of cases by  the Special Judge, the special features of which are  as follows :--     (1)  The  Special  Judge may  take  cognizance  offences without the accused being committed to his court for trial;     (2)  There is to be no trial by jury or with the aid  of assessors;     (3) The Special Judge should ’ordinarily record a  memo- randum  only of the substance of the evidence of  each  wit- ness; and     (4) The person convicted has to appeal to the High Court within 15 days from the date of the sentence. 446     The  Ordinance further provides that the  provisions  of sections 491 and 526 of the Code of Criminal Procedure shall not  apply  to  any person or case triable  by  the  Special Judge,  and  the High Court may call for the record  of  the proceedings  of  any case tried by a Special Judge  and  may exercise  any of the powers conferred on an appellate  court by sections 423, 426, 427 and 428 of the Code.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 28  

    From  the  foregoing summary of the provisions  of  the Ordinance,  it will appear that the difference  between  the procedure  laid down in the Criminal Procedure Code and  the procedure  to  be followed by the Special   Judge   consists mainly  in  the following matters:-     (1)  Where a case is triable by a court of  session,  no commitment proceeding is necessary,  and  the Special  Judge may take cognizance without any commitment;    (2)  The trial shall not be by jury or with the  aid  of assessors;     (3)  Only a memorandum of the substance of the  evidence of. each witness is ordinarily to be recorded;    (4) The period of limitation for appeal to the High Court is curtailed; and    (5)  No court has jurisdiction to transfer any case  from any Special Judge, or to make an order under section 491  of the Criminal Procedure Code.     It appears that pursuant to the provisions contained  in sections 9, 10 and 11 of the Ordinance, the State Government issued a Notification No. H/35-5-C, dated the 9/11th  Febru- ary, 1951, directing the constitution of a Special Court for certain areas mentioned in a schedule attached to the  Noti- fication  and  empowering such court to  try  the  following offences,  namely,  offences under sections 183,  189,  190, 212,  216,  224, 302, 304, 307, 323-335,  341-344,  379-382, 384-389  and  392-402  of the Indian Penal  Code,  1860,  as adapted and applied to the State of Saurashtra, and most  of t, be offences under the. Ordinance of 1948. 447     In the course of the hearing, an affidavit was filed  by the  Assistant Secretary in the Home Department of the  Sau- rashtra  Government, stating that since the  integration  of different States in Kathiawar in the beginning of 1948 there had  been a series of crimes against public peace  and  that had  led  to the promulgation of Ordinance No. IX  of  1948, which  provided among other things for detention of  persons acting in a manner prejudicial to public safety and  mainte- nance  of public order in the State.   Notwithstanding  this Ordinance, the crimes went on increasing and there  occurred numerous cases of dacoity, murder, nosecutting, ear-cutting, etc. for some of which certain notorious gangs were  respon- sible, and hence Ordinance No. LXVI of 1949 was  promulgated to  amend  the earlier Ordinance and to  constitute  Special Courts  for  the speedy trial of cases arising  out  of  the activities  of  the dacoits and other  criminals  guilty  of violent crimes.     As  has  been  already indicated,  the  main  contention advanced  before us on behalf of the appellant is  that  the Ordinance of 1949 violates the provisions  of article 14  of the  Constitution, by laying down a procedure which is  dif- ferent  from and less advantageous to the accused  than  the ordinary procedure laid down in the Criminal Procedure Code, and  thereby  discriminating between persons who are  to  be tried under the special procedure and those tried under  the normal procedure.  In support of this argument, reliance  is placed  on the decision of this court in The Slate  of  West Bengal  v. Anwar Ali Sarkar and Gajen Mali (Cases  Nos.  297 and  298  of 1951) (1), in which certain provisions  of  the West  Bengal Special Courts Act, 1949, have been held to  be unconstitutional on grounds similar to those urged on behalf of  the appellant in the present ease. A comparison  of  the provisions  of the Ordinance in question with those  of  the West Bengal Act will show that several of the  objectionable features in the latter enactment do not appear in the  Ordi- nance,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 28  

(1) [1952] S.C.R. 284. 58 448 but, on the whole, I am inclined to think that that  circum- stance by itself will not afford justification for upholding the Ordinance.  There is however one very important  differ- ence  between the West Bengal Act and the present  Ordinance which, in my opinion, does afford such justification, and  I shall try to refer to it as briefly as possible.    I  think that a distinction should be drawn  between"dis- crimination  without reason" and’ ’discrimination with  rea- son".  The whole doctrine of classification is based on this distinction  and  on the well-known fact  that  the  circum- stances  which govern one set of persons or objects may  not necessarily  be the same as those governing another  set  of persons  or objects, so that the question of unequal  treat- ment  does not really arise as between  persons governed  by different  conditions  and   different   sets   of   circum- stances.  The main objection  to  the  West  Bengal  Act was that  it permitted discrimination "without reason" or  with- out  any rational basis. Having laid down a procedure  which was  materially different from and less advantageous to  the accused  than the ordinary procedure, that Act  gave  uncon- trolled  and unguided authority to the State  Government  to put  that procedure into operation in the trial of any  case or  class  of  cases or any offence or  class  of  offences. There  was no principle to be found in that Act  to  control the  application  of  the discriminatory  provisions  or  to correlate  those  provisions to some tangible  and  rational objective, in such a way as to enable anyone reading the Act to  say  :--If that is the objective, the provisions  as  to special treatment of the offences seem to be quite  suitable and  there can be no objection to dealing with a  particular type of offences on a special footing.  The mere mention of speedier  trial  as the object of the Act did not  cure  the defect, because the expression "speedier trial"  standing by itself provided no rational basis of    classification.   It was  merely  a description of the      result sought  to  be achieved  by the application of the special  procedure  laid down  in the Act’ and afforded no help in  determining  what cases required speedier trial. 449     As  regards  the present Ordinance, we  can  discover  a guiding principle within its four corners, which cannot  but have  the effect of limiting the application of the  special procedure  to  a  particular category of offences  only  and establish such a nexus (which was missing in the West Bengal Act)  between  offences  of a particular  category  and  the object  with which the Ordinance was promulgated, as  should suffice  to repel the charge of discrimination  and  furnish some  justification for the special treatment of  those  of- fences.  The Ordinance, as I have already stated,  purported to  amend  another  Ordinance, the object of  which  was  to provide  for public safety, maintenance of public order  and preservation of peace and tranquillity in the State. It  was not  disputed  before us that the preamble of  the  original Ordinance  would govern  the  amending Ordinance  also,  and the object of promulgating the subsequent Ordinance was  the same  as the object of promulgating the original  Ordinance. Once  this is appreciated, It is easy to see that  there  is something in the Ordinance itself to guide the State Govern- ment   to apply the special procedure not to any  and  every case  but only to those cases or offences which have  a  ra- tional  relation  to,  or connection with, the  main  object and  purpose of the Ordinance and  which  for  that   reason

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 28  

become  a  class by themselves requiring to be dealt with on a special footing. The clear recital of a definite objective furnishes a tangible and rational basis of classification to the State Government for the purpose of applying the  provi- sions  of the Ordinance and for choosing only such  offences or  cases  as affect public safety,  maintenance  of  public order  and preservation of peace and  tranquillity.    Thus, under   section   11, the State Government  is  expected  to select  only such offences or class of offences or class  of cases  for  being tried by the special court  in  accordance with  the  special procedure, as are  calculated  to  affect public safety, maintenance of public order, etc., and  under section 9, the use of the special procedure must necessarily be  confined  to only disturbed areas or those  areas  where adoption of 450 public  safety measures is necessary.  That this is how  the Ordinance  was  intended to be understood and  was  in  fact understood,  is confirmed by the Notification issued on  the 9/11th February by the State Government in pursuance of  the Ordinance.  That Notification sets out 49 offences under the Indian  Penal Code as adapted and applied to the  State  and certain  other offences punishable under the Ordinance,  and one can  see  at  once  that  all  these  offences  directly affect  the maintenance of public order and peace and  tran- quillity.   The Notification also specifies  certain   areas in   the   State  over which only the special  court  is  to exercise jurisdiction.  There can be no dispute that if  the State  Legislature  finds  that lawlessness  and  crime  are rampant and there is a direct threat to peace and  tranquil- lity  in certain areas within the State, it is competent  to deal  with offences which affect the maintenance  of  public order  and preservation of peace and tranquillity  in  those areas  as  a class by themselves and to  provide  that  such offences  shall  be tried as expeditiously  as  possible  in accordance with a special procedure devised for the purpose. This,  in my opinion, is in plain language the rationale  of the  Ordinance, and it will be going too far to say that  in no  case  and under no circumstances can a  legislature  lay down a special procedure for the trial of a particular class of  offences,  and that recourse to a  simplified  and  less cumbrous  procedure  for the trial of those  offences,  even when abnormal conditions prevail, will amount to a violation of  article  14 of the Constitution.  I am  satisfied   that this  case is distinguishable from the case relating to  the West  Bengal  Act,  but I also feel  that  the  legislatures should have recourse to legislation such as the present only in  very special circumstances.  The question  of  referring individual cases to the special court does not arise in this appeal, and I do not wish to express any opinion on it.   Certain  other points were urged on behalf of  the  appel- lant,  namely,  that the Ordinance  suffers  from  excessive delegation of legislative authority, and that 451 the  Rajpramukh  had  exceeded his powers  in  amending  the provisions of the Criminal Procedure Code. These contentions were found to be devoid of all force and  have to be reject- ed.    In  the  result, I would hold that the  Saurashtra  State Public  Safety Measures (Third Amendment) Ordinance  is  not unconstitutional, and accordingly overrule the objection  as to  the jurisdiction of the special court to try the  appel- lant. MAHAJAN  J.--The principal point for decision in the  appeal is whether section 11 of the Saurashtra State Public  Safety

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 28  

Measures (Third Amendment) Ordinance (No. LXVI), 1949. which came into force on 2nd November, 1949, is hit by article  14 of the Constitution inasmuch as it mentions no basis for the differential treatment prescribed in the Ordinance for trial of  criminals  in certain cases and  for  certain  offences. Section 11 of the Ordinance is in these terms :--      "A Special Judge shall try such offences or classes  of offences or such cases or classes of cases as the Government of the United State of Saurashtra may, by general or special order in writing, direct."     This section is in identical terms with section 5(1)  of the West Bengal Special Courts Act (Act X of 1950).  Section 5(1) of that Act provided as follows :--     "A  Special Court shall try such offences or classes  of offences or cases or classes of cases, as the State  Govern- ment  may, by general or special order in writing,  direct." The  question whether section 5(1) of the  Bengal Act (X  of 1950)  was hit by article 14 of the   Constitution  was  an- swered  in the affirmative by this   court in The  State  of West Bengal v. Anwar Ali Sarkar   etc.(1) In that case I was of the opinion that even if the   statute on the face of  it was not discriminatory, it was   so in its effect and opera- tion  inasmuch  as it vested in   the  executive  government unregulated  official  discretion and therefore  had  to  be adjudged  unconstitutional.   Section 11 of  the  Ordinance, like section 5(1) (1) [1952] S.C.R. 284. 452 of  the  West Bengal Act, suggests no  reasonable  basis  or classification  either in respect of offences or in  respect of  cases.   It has laid down no measure  for  the  grouping either of persons or of cases or of offences by which  meas- ure  these groups could be distinguished from those  outside the  purview  of the special Act. The State  Government  can choose a case of a person similarly situate and hand it over to the special tribunal and leave the case of another person in the same circumstances to be tried by the procedure  laid down in the Criminal Procedure Code.  It can direct that the offence  of  simple hurt be tried by  the  special  tribunal while  a more serious offence be tried in the ordinary  way. The  notification in this case fully illustrates the  point. Offence  of simple hurt punishable with two years’  rigorous imprisonment is included in the list of offences to be tried by  the Special Judge, while a more serious offence  of  the same  kind punishable with heavier punishment under  section 308 is excluded from the list. It is the mischief of section 11 of the Ordinance that makes such discrimination possible. To  my mind, offences falling in the group of  sections  302 to  308, Indian Penal Code. possess  common  characteristics and  the appellant can reasonably complain of  hostile  dis- crimination.  I am therefore of the opinion that section  11 of  the Ordinance is unconstitutional and the conviction  of the  appellant under the Ordinance by the special  judge  is bad  and  must be quashed. There will be a  retrial  of  the appellant  under  the procedure prescribed by  the  Code  of Criminal Procedure.      The  contention  of the learned counsel for  the  State that  the provisions of the Ordinance are in  some  respects distinguishable  from  the  provisions of  the  West  Bengal Special  Courts Act cannot be sustained. Reference was  made to section 9 of the Ordinance which is in these terms :-      "The  Government of  the United  State   of  Saurashtra may  by  notification  in the  official  gazette  constitute Special Courts of criminal jurisdiction for such area as may be specified in the notification."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 28  

453 This  section is in the same terms as section 3 of the  West Bengal  Special  Courts  Act.  It only  empowers  the  State Government to constitute Special Courts for any  area or for the  whole of the State of Saurashtra in the like manner  in which  section  3 empowered the West  Bengal  Government  to constitute special courts for the whole of the State or  any particular  area,  It does not in any way limit  or  curtail the  power conferred on the State Government by  the  provi- sions of section 11.  Reference was also made to the  pream- ble  of the original Ordinance which uses the familiar  con- ventional phraseology:    "An  Ordinance to provide for public safety,  maintenance of  public order and preservation of peace and  tranquillity in the State of Saurashtra."  These words cannot limit the plain and unambiguous language of  section 11 of the Ordinance which authorises  the  State Government to send any case or commit persons guilty of  any offence  to  the special judge for trial  by  the  procedure prescribed in the Ordinance.  MUKHERJEA J.--The appellant before us was tried,along with two  other persons, by the Special Judge, Court of  Criminal Jurisdiction,  Saurashtra State, on charges of  murder,  at- tempted  murder and robbery under sections 302, 307 and  392 of  the  Indian  Penal Code read with section  34.   By  his judgment  dated 20th December, 1950, the Special Judge  con- victed the appellant on all the three charges and  sentenced him to death under section 302 and to seven years’  rigorous imprisonment  both under sections 307 and 392 of the  Indian Penal Code.  The conviction and sentences were upheld by the High  Court of Saurashtra on appeal.  The appellant has  now come to this court on the strength of a certificate  granted by the High Court under articles 132(1) and 134(1)(c) of the Constitution.   The appeal has not been heard on its merits as yet. It was set  down for hearing on certain preliminary points  of  law raised  by the learned counsel for the  appellant  attacking the legality of the entire trial on the ground that  section 11 of the Saurashtra Public 454 Safety  Measures  Ordinance No. XLVI of 1949 passed  by  the Rajpramukh of Saurashtra as well as the Notification  issued by  the  State Government on 9/11th  February,  1951,  under which the Special Court was constituted and the trial  held, were  void and inoperative.  The first and the  main  ground upon  which the constitutional validity of the  section  and the  notification  has  been assailed is that  they  are  in conflict  with the provision of article 14 of the  Constitu- tion.   The  other  point raised is that  the  provision  of section 11       the  Ordinance is illegal as it amounts to  delegation of essential legislative powers by the State Legislature  to the Executive.    So  far  as  the first point is  concerned,  the  learned counsel for the appellant has placed great reliance upon the majority  decision  of this court in two  analogous  appeals from  the Calcutta High Court (being cases Nos. 297 and  298 of 1951)(1), where a similar question arose in regard to the validity of section 5 (1) of the West Bengal Special  Courts Act,  1950. In fact, it was because of our pronouncement  in the  Calcutta  appeals that it was considered  desirable  to have  the  present case heard on the preliminary  points  of law.      It  is not disputed that the language of section 11  of the  Saurashtra Ordinance, with which we are now  concerned,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 28  

is identically the same as that of section 5 (1) of the West Bengal Special Courts Act.  The wording of the section is as follows:    "11.   Jurisdiction  of Special Judges--A  Special  Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra  may,   by general or special order  in  writing, direct."    In  the West Bengal Act there is a further provision  em- bodied  in clause (2) of section 5 which lays down  that  no such  direction  as is contemplated by clause (1)  could  be given  in respect of cases pending before ordinary  criminal courts  at the date when the Act came into force.   No  such exception has been made in the Saurashtra Ordinance.  In the Calcutta cases referred  (1) Since reported as [1952] S.C.R. 284 455 to  above, the notification under section 5(1) of  the  West Bengal Act directed certain individual cases in which speci- fied persons were involved to be tried by the Special  Court and it was held by the High Court of Calcutta that section 5 (1) of the West Bengal Special Courts Act to the extent that it  empowers the State Government to direct any case  to  be tried  by Special Courts was void as offending  against  the provision  of the equal protection clause in article  14  of the Constitution; and this view was affirmed in appeal by  a majority of this court, With regard to the remaining part of section  5(1),  which  authorises the  State  Government  to direct,  "offences,  classes  of  offences...or  classes  of cases"  for  trial by Special Courts, the  majority  of  the Judges  of the Calcutta High Court were of opinion  that  it was not obnoxious to article 14 of the Constitution.  In the present  case the notification, that was issued by the  Sau- rashtra  State Government on 9/11th February, 1951, did  not relate to individual cases. The notification constituted  in the  first place a Special Court in the areas  specified  in the  schedule.   It appointed in the next place a  judge  to preside  over the Special Court and finally gave a  list  of offences  with  reference  to appropriate  sections  of  the Indian  Penal  Code which were to be tried  by  the  Special Judge.   If the view taken by the Chief Justice of the  Cal- cutta  High  Court  and the majority of  his  colleagues  is right, such notification and that part of section 11 of  the Ordinance,  under  which it was issued, could not  be  chal- lenged as being in conflict with article 14 of the Constitu- tion.  This point did come up for consideration before us in the appeals against the Calcutta decision with reference  to the  corresponding part of section 5 (1) of the West  Bengal Act,  but  although a majority of this  court  concurred  in dismissing  the appeals, there was no such majority  in  the pronouncement of any final opinion on this particular point.       In my judgment in the Calcutta appeals I was sceptical about  the correctness of the view taken upon this point  by the learned Chief Justice of the Calcutta High Court and the majority of his colleagues.  The     59 456 consideration  that weighed with me was that as the  learned Judges  were  definitely of opinion that  the  necessity  of speedier trial., as set out in the preamble, was too elusive and  uncertain  a criterion to form the basis  of  a  proper classification, the authority given by section 5 (1) of  the Special  Courts  Act to the State Government to  direct  any class of cases or offences’ to be tried by the Special Court would  be  an unguided authority and the  propriety  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 28  

classification made by the State Government that is said  to be implied in the direction could not be tested with  refer- ence to any definite legislative  policy  or standard.   Mr. Sen  appearing for the State of Saurashtra, has  argued  be: fore us that in this respect the Saurashtra Ordinance stands on  a different footing and he has referred in this  connec- tion  to the preamble to the original ordinance as  well  as the  circumstances which necessitated the present  one.   As the question is an important one and is not concluded by our previous  decision,  it  merits, in my  opinion,  a  careful consideration.       It  may  be  stated at the outset  that  the  Criminal Procedure  Code of India as such has no application  to  the State of Saurashtra.  After the State acceded to the  Indian Union, there was an Ordinance promulgated by the  Rajpramukh on  5th of April, 1948, which introduced the  provisions  of the  Criminal Procedure Code of India (Act V of  1898)  with certain  modifications into the Saurashtra  State.   Another ordinance,  known as the Public Safety  Measures  Ordinance, was  passed on the 2nd of April, 1948, and  this  ordinance, like similar other public safety measures obtaining in other States,  provided  for preventive detention,  imposition  of collective fines, control of essential supplies and  similar other  matters.   On  11th of November,  1949,  the  present ordinance  was  passed  by way of amendment  of  the  Public Safety Measures Ordinance and inter alia it made  provisions for  the establishment of special courts. Section 9 of  this Ordinance  empowers the State Government to constitute  spe- cial  courts of criminal.jurisdiction for such areas as  may be  specified  in the notification.  Section 10  relates  to appointment. 457 of  Special Judges who are to preside over such  courts  and section 11 lays down that the Special Judge shall try  "such offences  or  classes of offences.........   or  classes  of cases  as the Government of United State of Saurashtra  may, by general or special order in writing, direct." The  proce- dure  to  be followed by the Special Judges is  set  out  in sections  12 to 18 of the Ordinance.  In substance the  Spe- cial Court is given the status of a sessions court, although committal  proceeding is eliminated and so also is trial  by jury  or  with the aid of assessors. The Special  Judge  has only to make a memorandum of the evidence and he can  refuse to  summon any witness if he is satisfied after  examination of  the accused that the evidence of such witness would  not be  material. Section 16 (1) curtails the period of  limita- tion within which an accused convicted by the Special  Judge has to file his appeal before the High Court and clause  (3) of  the section provides that no court shall have  jurisdic- tion to transfer any case from any Special Judge or make any order under section 491 of the Criminal Procedure Code.  The ordinance  certainly  lacks some of the  most  objectionable features of the West Bengal Act.  Thus it has not taken away the  High Court’s power of revision, nor does it expose  the accused to the chance of being convicted of a major  offence though he stood charged with a minor one.  There is also  no provision  in  the  ordinance similar to that  in  the  West Bengal Act which enables the court to proceed with the trial in the absence of the accused. But although the ordinance in certain  respects compares favourably with the  West  Bengal Act, the procedure which it lays down for the Special  Judge to  follow  does differ on material points from  the  normal procedure prescribed in the Criminal Procedure Code; and  as these differences abridge the rights of the accused who  are to  be tried by the Special Court, and deprive them of  cer-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 28  

tain benefits to which they would otherwise have been  enti- tled under the general law, the ordinance prima facie  makes discrimination  and  the  question has got  to  be  answered whether  such  discrimination  brings it  in  conflict  with article 14 of the Constitution. 458     The nature and scope of the guarantee that is implied in the  equal protection clause of our Constitution  have  been explained  and discussed in more than one decision  of  this court and do not require repetition. It is well settled that a  legislature for the purpose of dealing with  the  complex problems  that  arise out of an infinite  variety  of  human relations, cannot but proceed upon some sort of selection or classification  of persons upon whom the legislation  is  to operate.  The consequence of such classification  would  un- doubtedly be to differentiate the persons belonging to  that class  from  others, but that by itself would not  make  the legislation obnoxious to the equal protection clause. Equal- ity prescribed by the Constitution would not be violated  if the statute operates equally on all persons who are included in  the  group, and the classification is not  arbitrary  or capricious, but bears a reasonable relation to the objective which the legislation has in view.  The legislature is given the  utmost latitude in making the classification and it  is only when there is a palpable abuse of power and the differ- ences  made have no rational relation to the  objectives  of the  legislation,  that necessity of  judicial  interference arises.       Section 11 of the Saurashtra Ordinance so far as it is material  for our present purpose lays down that  a  Special Court  shall try such offences or classes  of  offences...or classes  of  cases as the State  Government  may....direct". This part of the section undoubtedly contemplates a  classi- fication to be made of offences and cases but no classifica- tion appears on the terms of the statute itself which merely gives an authority to the State Government to determine what classes of cases or offences are to be tried by the  special tribunal.  The question arises at the outset as  to  whether such  statute is not on the face of it discriminatory as  it commits  to  the  discretion of an  administrative  body  or officials the duty of making selection or classification for purposes  of the legislation; and there is a  still  further question, namely, by what tests, if any, is the propriety of the administrative action to be adjudged  and  what would be the remedy of the aggrieved person if the 459 classification made by the administrative body is  arbitrary or capricious ?      It is a doctrine of the American courts which seems  to me to be well-founded on principle that the equal protection clause  can be invoked not merely where  discrimination  ap- pears  on the express terms of the statute itself, but  also when it is the result of improper or prejudiced execution of the law (1).  But a statute will not necessarily be  condem- ned as discriminatory, because it does not make the  classi- fication itself but, as an effective way of carrying out its policy, vests the authority to do it in certain officers  or administrative  bodies.  Illustrations of one class of  such cases  are to be found in various regulations in the  U.S.A. which are passed by States in exercise of police powers  for the  purposes of protecting public health or welfare  or  to regulate  trades, business and occupations which may  become unsafe or dangerous when unrestrained. Thus there are  regu- lations where discretion is lodged by law in public officers or  boards to grant or withhold licence to keep  taverns  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 28  

sell  spirituous  liquors(2),  or  other  commodities   like milk(3)  or  cigarettes(4). Similarly, there are regulations relating  to appointment  of  river  pilots(5)   and   other trained  men  necessary  for particularly   difficult   jobs and  in such cases, ordinarily, conditions are laid down  by the statute, on compliance with which a candidate is consid- ered qualified.  But even then the appointment board has got a discretion to exercise and the fact of the candidate for a particular post is submitted to the judgment of the  officer or the board as the case may be. It is true that these cases are  of  a  somewhat different nature than the  one  we  are dealing with; but it seems to me that the principle underly- ing  all these cases is the same.  The whole problem is  one of choosing the method by which the legislative policy is to be effectuated.  As has been observed by Frankfurter J. in       (1) Vide Weaver on Constitutional Law, p. 404.       (2)Crowley v. Uhristensen, 137 U.S. 86.       (3) People of the State of New York v. Job. E, Van  De Carr, 199 U.S.552.      (4) Gundling v. Chicago, 177 U.S. 183.      (5)  Kotch v. Board of River Port Pilot  Commissioners, 330 U.S.552. 460 Tinger    v.    Texas(1),    "laws    are    not    abstract propositions...but are expressions of policy arising out  of specific difficulties addressed to the attainment of specif- ic ends by the use of specific remedies."  In my opinion, if the  legislative  policy  is clear and definite  and  as  an effective method of carrying out that policy a discretion is vested  by  the  statute upon a body  of  administrators  or officers to make selective application of the law to certain classes  or groups of persons, the statute itself cannot  be condemned  as a piece of discriminatory legislation.   After all  "the law does all that is needed when it does all  that it  can, indicates a policy....  and seeks to  bring  within the  lines  all  similarly  situated so  far  as  its  means allow(2)’’.  In such eases, the power given to the executive body  would  import a duty on it to  classify  the  subject- matter  of  legislation  in accordance  with  the  objective indicated in the statute.  The discretion that is  conferred on   official agencies in such circumstances is not  an  un- guided discretion; it has to be exercised in conformity with the policy to effectuate which the direction is given and it is  in relation to that objective that the propriety of  the classification  would have to be tested. If the  administra- tive body proceeds to classify persons or things on a  basis which  has  no  rational relation to the  objective  of  the legislature, its action can certainly be annulled as offend- ing against the equal protection clause.  On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selec- tion at its pleasure, the statute would be held on the  face of it to be discriminatory irrespective of the way in  which it is applied.  This, it seems to me, is the true  principle underlying  the decision of the Supreme Court of America  in Yick  Wo v. Hopkins(3).  The object of the ordinance of  the City and County of San Francisco, which came up for  consid- eration  in  that case, was, as found by the court,  not  to regulate laundry business in that locality in the  interests of the general public(4).  The business was (1) 310 U.S. 141 at 147. (2) Vide Buck v. Belt, 274 U.S. 200, 208. (3) 118 U. S. 356. (4)  Vide the observations of Field J. in Crowley v.  Chris- tensen, 137 U.S. 86,94.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 28  

461 harmless  in itself and useful to the community.  No  policy was indicated or object declared by the legislature, but  an uncontrolled  discretion was given to the Board of  Supervi- sors  who could refuse license at their pleasure to  anybody carrying  on  laundry  business in  wooden  buildings.   The classification contemplated by the statute was an  arbitrary classification  depending on the caprice of the  Board,  and consequently it was condemned as discriminatory on the  face of it;its application against the Chinese was a confirmation of  the  discriminatory  character and  the  really  hostile intention of the legislation.  I would be inclined to  think that  the West Bengal case, which we have  decided  already, comes  within the purview of this principle, as the  desira- bility of "speedier trial", which is hinted at in the pream- ble to the West Bengal Act, is too vague, elusive and uncer- tain  a  thing  to amount to an enunciation  of  a  definite policy or objective on the basis of which any proper classi- fication  could  be made. the matter has been  left  to  the unfettered  discretion  of the State  Government  which  can classify  offences  or cases in any way  they  like  without regard  to any objective and as such the statute is open  to the challenge of making arbitrary discrimination.  The point that  requires  consideration  is,  whether  the  Saurashtra Ordinance presents any distinguishing features  or  occupies the same position as the West Bengal Act ?       As has been stated already, section 11 of the Saurash- tra  Ordinance is worded in exactly the same manner as  sec- tion  5(1) of the West Bengal Special Courts Act;  and  that part of it, with which we are here concerned, authorises the State Government to direct any classes of offences or  cases to  be tried by the special tribunal. The State  Government, therefore,  has  got to make a classification  of  cases  or offences  before  it issues its directions  to  the  Special Court. The question is, on what basis is the  classification to be made ? If it depends entirely upon the pleasure of the State Government to make any classification it likes,  with- out  any guiding principle at all. it cannot certainly be  a proper  classification,  Which requires  that  a  reasonable relation must exist 462 between the classification and the objective that the legis- lation  has in view.  On the other hand, if the  legislature indicates  a definite objective and the discretion has  been vested in the State Government as a means of achieving  that object, the law itself, as I have said above, cannot be held to be discriminatory, though the action of the State Govern- ment  may be condemned if it offends against the equal  pro- tection clause, by making an arbitrary selection.  Now,  the earlier ordinance, to which the present one is a  subsequent addition  by way of amendment, was passed by the  Rajpramukh of  Saurashtra  on 2nd April, 1948. It is  described  as  an ordinance to provide for the security of the State,  mainte- nance of public order and maintenance of supplies and  serv- ices essential to the community in the State of  Saurashtra. The preamble to the ordinance sets out the objective of  the ordinance  in identical terms.  It is to be noted  that  the integration  of several States in Kathiawar which  now  form the  State of Saurashtra, was completed some time in  Febru- ary,  1948.  It appears from the affidavit of an officer  of the Home Government of the Saurashtra State that soon  after the integration took place, an alarming state of lawlessness prevailed  in some of the districts within the State.  There were  gangs  of dacoits operating at  different  places  and their  number began to increase gradually.  As ordinary  law

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 28  

was  deemed insufficient to cope with the nefarious  activi- ties  of those criminal gangs, the Saurashtra Public  Safety Measures Ordinance was promulgated by the Rajpramukh on  2nd April,  1948.   The ordinance, as stated  already,  provided principally  for  preventive  detention  and  imposition  of collective  fines’; and it was hoped that armed  with  these extraordinary  powers the State Government would be able  to bring  the situation under control.  These  hopes,  however, were belied, and the affidavit gives a long list of offences in  which  murder and nose-cutting figure  conspicuously  in addition to looting and dacoity, which were committed by the dacoits  during  the years 1948 and 1949.  In view  of  this ugly situation in the Star, the new Ordinance was 463 passed  on 11th of November, 1949, and this  ordinance  pro- vides  inter  alia for the establishment of  Special  Courts which  are  to  try offenders  under  a  special  procedure. Acting  under  section 11 of the Ordinance,  the  Government issued  a notification on 9/11th February, 1950, which  Con- stituted  a Special Court for areas specified in the  sched- ule. and here again the affidavit shows that all these areas are included in the districts of Gohilwad, Madhya Saurashtra and Sorath, where the tribe of marauders principally  flour- ished.  The object of passing this new ordinance is  identi- cally  the same for which the earlier ordinance was  passed, and  the preamble to the latter, taken along with  the  sur- rounding  circumstances.  discloses a  definite  legislative policy  which has been sought to be effectuated by the  dif- ferent  provisions contained in the enactment.   If  Special Courts  were considered necessary to cope with  an  abnormal situation.  it cannot be said that the vesting of  authority in the State Government to select offences for trial by such courts is in any way unreasonable.     In  the  light of the principles stated  already,  I  am unable to hold that section 11 of the Ordinance in so far as it  authorises  the State Government to  direct  classes  of offences  or cases to be tried by the Special Court  offends against the provision of the equal protection clause in  our Constitution.   If the notification that has been issued  by the State Government proceeds on any arbitrary or unreasona- ble basis, obviously that could be challenged as unconstitu- tional.  It is necessary, therefore, to examine the terms of the notification and the list of offences it has prescribed.       The notification, as said above, constitutes a Special Court  for the areas mentioned in the Schedule and  appoints Mr.  P.P. Anand as a Special Judge to preside over the  Spe- cial  Court. The offences triable by the Special  Court  are then set out with reference to the specific sections of  the Indian Penal Code. Mr. Chibber attacks the classification of offences  made  in this list primarily on  the  ground  that while  it  mentions offences of a particular  character,  it excludes at the same time other offences of a cognate  char- acter in reference to 60 464 which  no  difference in treatment is  justifiable.   It  is pointed out that while section 183 of the Indian Penal  Code is  mentioned in the list, sections 184, 186 and  188  which deal with similar offences are excluded. Similarly the  list does  not mention section 308, Indian Penal Code, though  it mentions  section  307. The learned counsel relies  in  this connection upon the decision of the Supreme Court of America in  Skinner v. Oklahoma(1).  In that case the  question  for consideration related to the constitutionality of a  certain statute  of  Oklahoma which provided  for  sterilization  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 28  

certain  habitual criminals who were convicted two  or  more times in any State of felony involving moral turpitude.  The statute  applied to persons guilty of larceny, which  was  a felony,  but not to embezzlement, and it was held  that  the legislation  violated  the equal protection clause.   It  is undoubtedly a sound and reasonable proposition that when the nature  of two offences is intrinsically the same  and  they are  punishable in the same manner, a person accused of  one should  not be treated differently from a person accused  of the  other, because it is an essential principle  underlying the  equal  protection  clause that  all  persons  similarly circumstanced  shall  be treated alike  both  in  privileges conferred  and liabilities imposed.  At the same time it  is to be noted as Douglas J. observed in the very case that  in determining the reach and scope of particular legislation it is  not  necessary for the legislature to  provide  abstract symmetry.  "It may mark and set apart the classes and  types of  problems according to the needs and as dictated or  sug- gested by experience."  A too rigid insistance therefore  on a thing like scientific classification is neither  practica- ble  nor desirable.  It is true that the  notification  men- tions section 183 of the Indian Penal Code, though it  omits section 184; but I am unable to hold that the two are  iden- tically of the same nature.  Section 183 deals with  resist- ance  to the taking of property by the lawful  authority  of public  servant;  while section 184 relates  to  obstructing sale of property offered for sale (1) 316 U. S. 535. 465 by  authority  of public servant. Section 186 on  the  other hand  does not relate to the taking of property at all,  but is  concerned with obstructing a public servant in the  dis- charge of his public duties.  Then again I am not sure  that it  was incumbent upon the  State  Government   to   include section  308,  Indian  Penal  Code,  in   the  list   simply because they included section 307.  It is true that culpable homicide  as well as attempt to murder are specified in  the list; but an attempt to commit culpable homicide is certain- ly  a  less heinous offence and the State  Government  might think  it  proper, having regard to all the facts  known  to them, that an offence of attempt to commit culpable homicide does not require a special treatment.      Be  that  as it may, I do not think that  a  meticulous examination  of the various offences specified in  the  list with regard to their nature and punishment is necessary  for purposes of this case.  The appellant before us was  accused of  murder punishable under section 302 of the Indian  Penal Code.   There is no other offence, I believe,  described  in the  Indian Penal Code, which can be placed on an  identical footing as murder.  Even culpable homicide not amounting  to murder  is something less heinous than murder,  although  it finds a place in the list.  In my opinion, the appellant can have  no right to complain if he has not been  aggrieved  in any way by any unjust or arbitrary classification.  As he is accused  of murder and dacoity and no offences of a  similar nature are excluded from the list, I do not think that it is open to him to complain of any violation of equal protection clause  in  the notification.  There are quite a  number  of offences specified in the notification and they are  capable of  being grouped under various heads.  Simply because  cer- tain  offences  which could have been mentioned  along  with similar  others  in  a particular group  have  been  omitted therefrom,  it  cannot be said that the whole list  is  bad. The  question of inequality on the ground of  such  omission can be raised only by the person who is directed to be tried

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 28  

under the special 466 procedure for a certain offence, whereas for commission of a similar offence not mentioned in the list another person has still the advantages of the ordinary procedure open to  him. In  my opinion, therefore, the first point raised on  behalf of the appellant cannot succeed.      The  other point urged by the learned counsel  for  the appellant  which  relates to the question of  delegation  of legislative authority by the Rajpramukh to the State Govern- ment  admits, I think, of a short answer. It is conceded  by the learned counsel that the facts of this case are  identi- cal with those of King Emperor v. Benoarilal Sarma (1) which was decided by the Privy Council.  In fact, the language  of section  5 of the Special Criminal Courts Ordinance (No.  II of  1942)  which came up for consideration in that  case  is almost  the  same as that of section 11  of  the  Saurashtra Ordinance.  It was held by the Privy Council that it was not a ease of delegated legislation at all, but merely an  exam- ple of the not uncommon legislative arrangement by which the local  application of the provision of a statute  is  deter- mined  by the judgment of a local administrative body as  to its necessity.  In other words, it was a case of conditional legislation  coming within the rule of Queen v.  Burah  (2). The pronouncement of the Judicial Committee in  Benoarilal’s case  (2) has been accepted and acted upon by this court  in more  than one case and it is too late now to  question  its correctness.   My  conclusion, therefore, is that  both  the preliminary points must be disallowed and the appeal  should be heard on its merits.     DAS J. --The appellant before us was tried by a  Special Court  constituted under the Saurashtra Public Safety  Meas- ures  (Third Amendment) Ordinance No. LXVI of 1949  for  of- fences alleged to have been committed by him under  sections 302, 307 and 392 of the Indian Penal Code.  On December  20, 1950,  he was found guilty of the offences  charged  against him  and was convicted and sentenced to death under  section 302, (1) 72 I.A. 57.                      (2) 3 App. Cas. 889. 467 Indian Penal Code, and to seven years rigorous  imprisonment under each of the charges under sections 307 and 392, Indian Penal  Code, the sentences of imprisonment  running  concur- rently-  He appealed to the High Court of Saurashtra but the High Court, by its judgment pronounced on February 28, 1951, rejected  his  appeal and confirmed his conviction  and  the sentences passed by the Special Court.  By its order made on March  21, 1951, however, the High Court granted him a  cer- tificate for appeal to this Court both under article 132 and article  134 (1) (c) of the Constitution.  This  appeal  has accordingly been filed in this Court.      A preliminary point has been raised by learned  counsel for  the  appellant, namely, that the Special Court  had  no jurisdiction  to try this case and the whole trial and  con- viction  have been illegal and void ab initio and should  be quashed in limine.  It is necessary, for the disposal of the preliminary  objection,  to refer to the provisions  of  the Ordinance  and the circumstances in which the Special  Court came to be constituted.     In the beginning of 1948 the different States in Kathia- war  were integrated into what is now the State of  Saurash- tra.  About that time different dacoits indulged in  lawless activities  in Kathiawar and in particular in the  area  now known as the districts of Gohilwad and Madhya Saurashtra and on  the outskirts of Sorath that was formerly a district  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 28  

Junagadh State. Their activities gathered such strength  and virulence that the security of the State and the maintenance of  public peace became seriously endangered.  In  order  to check their nefarious activities the Rajpramukh of the State of Saurashtra on April 2, 1948, promulgated Ordinance No. IX of 1948.  The preamble of the Ordinance recited that ’it was "expedient  to  provide for public  safety,  maintenance  of public  order and preservation of peace and tranquillity  in the State of Saurashtra."  that  Ordinance gave power to the State Government to make orders,  amongst other things,  for detaining or restricting the movements or 468 actions of persons and impose collective fines.  The Rajpra- mukh on April 5, 1948, promulgated another Ordinance No. XII of 1948 which extended to the State of Saurashtra the provi- sions  of  the Code of Criminal Procedure (Act  V  of  1898) subject to certain adaptations and  modifications  mentioned in  the Schedule thereto.  It appears from the affidavit  of Ramnikrai  Bhagwandas Vesavada, Assistant Secretary  in  the Home  Department, Government of Saurashtra, that  the  Ordi- nance was not sufficient to cope with the activities of  the gangs  of dacoits and that cases of looting,  dacoity,  rob- bery, nose-cutting and murder continued as before and indeed increased  in number, frequency and vehemence and it  became impossible to deal with the offences at different places  in separate Courts of law expeditiously.  In view of the  seri- ous  situation  prevailing in those districts the  State  of Saurashtra  considered  it necessary to  constitute  Special Courts  and to provide for a special procedure of trials  so as  to expedite the disposal of cases in which  offences  of certain specified kinds had been committed.  The  Rajpramukh of Saurashtra accordingly, on November  2, 1949,  promulgat- ed  Ordinance No. LXVI of 1949 called "The Saurashtra  State Public  Safety Measures (Third Amendment) Ordinance,  1949", whereby it amended the Saurashtra State Public Safety  Meas- ures  Ordinance (No. IX of 1948). By section 4 of the  Ordi- nance No. LXVI of 1949 several sections were added to  Ordi- nance  No.  IX of 1948. Three of the  sections  thus  added, which  are material for our present purposes, were  sections 9, 10 and 11 which run as follows :--     "9.  Special Courts.--The Government of the United State of  the Saurashtra may by notification in the  Official  Ga- zette constitute Special Courts of Criminal Jurisdiction for such area as may be specified in the notification.     10.  Special Judges.--The Government of the United State of Saurashtra may appoint a Special Judge to preside over  a Special  Court constituted under section 9 for any area  any person who has been 469 a Sessions Judge for a period of not less than 2 years under the  Code  of Criminal Procedure,  1898, as applied  to  the United State of Saurashtra.      11.  Jurisdiction of Special Judges.--A  Special  Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra  may,  by general or special  order  in  writing, direct."     Pursuant  to the provisions of the Ordinance as  amended the State of Saurashtra issued a notification, the  material part of which is as follows :-     "No.  H/35-5-C--In exercise of the powers  conferred  by sections 9, 10 and 11 of the Saurashtra State Public  Safety Measures Ordinance, 1948, (Ordinance No. IX of 1948),  here- inafter  referred to as the said Ordinance),  Government  is pleased to direct-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 28  

  (i)  that a Special Court of a  Criminal  Jurisdiction, (hereinafter referred to as the said Court) shall be consti- tuted  for the areas, mentioned in the schedule  hereto  an- nexed, and that the headquarters of the said Court shall  be at Rajkot,      (ii)  that Mr. P.P. Anand shall be appointed as a  Spe- cial Judge to preside over the said Court and    (iii)  that the Special Judge hereby appointed shall  try the following offences, viz.....    (a) offences under sections 183, 189, 190, 212, 216  224, 302, 304. 307,323 to 335, 341 to 344, 379 to 382 384 to  389 and 392 to 402 of the Indian Penal Code 1860 (XLV of  1860), as  adapted and applied to the United State  of  Saurashtra, and  (b)  all  offences under the said Ordinance,  except  an offence punishable under sub-section (6) of section 2 of the said Ordinance, in so far as it relates to the contravention of  an order made under clause (a) of subsection (1) of  the said section."     The appellant having been charged with offences included in  the Notification he was tried by the Special Court  with the  result  I  have mentioned.  The  preliminary  objection raised on his behalf is that section 470 11  of  the  Ordinance is invalid in  that  (a)  it  offends against  article 14 of our Constitution, and (b)  it  autho- rises  illegal delegation of legislative power to the  State Government.      In support of the first ground on which the preliminary objection  is  rounded  reliance is placed by learned  coun- sel for the appellant on the judgment of this Court in  Case No.  297  of  1951 (The State of West Bengal  v.  Anwar  Ali Sarkar).  That case was concerned with the validity  of  the trial  of the respondent therein by a Special Court  consti- tuted under the provisions of the West Bengal Special Courts Act, 1950 (West Bengal Act X of 1950).  The preamble to that Act  recited  that  it was "expedient  to  provide  for  the speedier  trial of certain offences".  Sections 3, 4  and  5 (1) of the West Bengal Special Courts Act, 1950,  reproduced substantially,  if not verbatim, the provisions of  sections 9,  10 and 11 of the Saurashtra Ordinance of 1948 as  subse- quently  amended.  The notification issued by the  State  of West Bengal under that Act was, however, different from  the notification  issued by the State of Saurashtra in that  the West  Bengal notification directed certain specific  "cases" to be tried by the Special Court constituted under the  West Bengal Special Courts Act.  That notification had  obviously been  issued  under that part of section 5 (1) of  the  West Bengal Special Courts Act which authorised the State Govern- ment to direct particular "cases" to be tried by the Special Court.   A  majority  of this court held that  at  any  rate section  5 (1) of the West Bengal Special Courts Act  in  so far as it authorised the State to direct "cases" to be tried by the Special Court and the notification issued  thereunder offended against the provisions of article 14 of the Consti- tution and as such were void under article 13. The  Saurash- tra  notification, however, has been issued quite  obviously under  that  part of section 11 which authorises  the  State Government to direct "offences’ ’, "classes  of offences" or "classes of cases" to be tried by the Special Court and  the question  before  us on the present appeal is  whether  that part of section 11 under 471 which  the  present  notification has  been  issued  offends against the equal protection clause of our Constitution.  It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 28  

is  contended that the opinion expressed by the majority  of this   Court in’ the West Bengal case on  the  corresponding part of section S (1) of the West Bengal Special Courts  Act was  not necessary for the purposes of that appeal  and  re- quires reconsideration.      After   referring   to  our   previous   decisions   in Chiranjit  Lal  Choudhury v. The Union of India  and  Others (1) and The State of Bombay v.F.N. Balsara (2), I summarised the meaning, scope and effect of article 14 of our Constitu- tion,  as I understand it,  in  my  judgment in   the   West Bengal   case which I need not  repeat but to which I  fully adhere.   It is now well established that while  article  14 forbids  class  legislation it does  not  forbid  reasonable classification  for the purposes of legislation.  In  order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classifi- cation must be rounded on an intelligible differentia  which distinguishes  persons or things that are  grouped  together from others left out of the group, and (ii)that that differ- entia must have a rational relation to the object sought  to be  achieved  by the Act.  What is necessary is  that  there must be a nexus between the basis of classification and  the object of the Act.     It  will  be noticed that section 11 of  the  Saurashtra Ordinance,  like section 5 (1) of the West   Bengal  Special Courts  Act,  refers to four  distinct  categories,  namely, "offences", "classes of offences",  "cases" and "classes  of cases"  and empowers the State Government to direct any  one or more of these categories to be tried by the Special Court constituted  under  the Act.   The  expressions  "offences", "classes  of offences" and "classes of cases" clearly  indi- cate  and  obviously imply a process  of  classification  of offences or cases. (1) [1950] S.C,R. 869. (2) A.I.R. (1951),S,C, 318 at p. 326 ; [1951] S.C.R. 682. 61 472 Prima  facie those words do not contemplate  any  particular offender  or any particular accused in any particular  case. The  emphasis  is on "offences", "classes  of  offences"  or "classes  of  cases."  The classification of  "offences"  by itself  is not calculated to touch any individual  as  such, although  it may, after the classification is  made,  affect all  individuals who may commit the particular offence.   In short,  the classification implied in this part of the  sub- section  has no reference to, and is not  directed  towards, the  singling out of any particular person as an  object  of hostile State action but is concerned only with the grouping of "offences", "classes of offences" and "classes of  cases" for the purposes of the particular legislation as recited in its preamble.     An argument was raised, as in the West Bengal ease, that even  this  part  of the section gave  an  uncontrolled  and unguided  power of classification which might well be  exer- cised by the State Government capriciously or "with an  evil eye  and an unequal hand" so as to deliberately bring  about invidious  discrimination  between  man  and   man  although both  of them were situated in exactly the  same or  similar circumstances.  I do not accept this argument as sound, for, the reasons I adopted in my judgment in the West Bengal case in  repelling  this argument apply with equal, if  not  with greater, force to the argument directed against the validity of  the Saurashtra Ordinance.  It is obvious that this  part of section 11 of the Ordinance which, like the corresponding part of section 5 (1) of the West Bengal Special Courts Act,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 28  

confers a power on the State Government to make a  classifi- cation  of "offences", "classes of offences" or "classes  of cases", makes it the duty of the State government to make  a proper  classification,  that is to  say,  a  classification which  must fulfil both conditions, namely, that it must  be based on some intelligible differentia  distinguishing   the offences    grouped  together  from   other   offences   and that that differentia must have a reasonable relation to the object of the Act as recited in the preamble.  A 473 classification  on  a basis which does not  distinguish  one offence from another offence or which has no relation to the object  of the Act will be wholly arbitrary and may well  be hit by the principles laid down by the Supreme Court of  the United States in Jack Skinner v. Oklahoma(1).  On the  other hand,  as I observed in the West Bengal case, it is easy  to visualise  a situation when certain offences, by  reason  of the  frequency  of  their perpetration  or  other  attending circumstances, may legitimately call for a special treatment in  order to check the commission of such offences.  Are  we not familiar with gruesome crimes of murder, arson, loot and rape  committed  on a large scale during communal  riots  in particular localities and are they not really different from a  case  of a stray murder, arson, loot or rape  in  another district which may not be affected by any communal  upheaval ?  Does  not the existence of the gangs of dacoits  and  the concomitant  crimes committed on a large scale as  mentioned in  the  affidavit  filed on behalf of the  State  call  for prompt  and  speedier trial for the  maintenance  of  public order and the preservation of peace and tranquillity in  the State  and indeed of the very safety of the community ?   Do not  those special circumstances add a peculiar  quality  to the offences or classes of offences specified in the notifi- cation so as to distinguish them from stray cases of similar crimes  and is it not reasonable and even necessary  to  the State with power to classify them into a separate group  and deal with them promptly ? I have no doubt to’  my mind  that the  surrounding  circumstances  and  the  special  features mentioned in the affidavit referred to above furnish a  very cogent  and reasonable basis of classification, for they  do clearly distinguish these offences from similar or even same species  of offences committed elsewhere and under  ordinary circumstanceS.  This differentia quite clearly has a reason- able  relation  to the object sought to be achieved  by  the Act, namely, the maintenance of public order, the  preserva- tion  of  public safety, the peace and tranquillity  of  the State. Such a classification (1) 216 U.S. 535; L. Ed. 1655. 474 will  not  be repugnant  to the  equal protection clause  of our  Constitution, for there will be no discrimination,  for whoever may  commit  the specified offence in the  specified area  in the specified circumstances will be  treated  alike and  sent  up before a Special. Court for  trial  under  the special  procedure.  Persons  thus sent up for  trial  by  a Special Court cording to the special procedure cannot  point their fingers to the other persons who may be charged before an ordinary Court with similar offences alleged to have been committed  by  them in a different place  and  in  different circumstances  and complain of unequal treatment, for  those other persons are of a different category and are not  their equals.  In my judgment, this part of the section,  properly construed  and understood, does not confer  an  uncontrolled and  unguided  power on the State Government.  On  the  con- trary, this power is controlled by the necessity for  making

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 28  

a proper classification which is to be guided by the  pream- ble in the sense that the classification must have a ration- al  relation  to  the object of the Act as  recited  in  the preamble.   It is, therefore, not an arbitrary  power.   The Legislature has left it to the State Government to  classify offences or classes of offences or classes of cases for  the purpose  of the Ordinance, for the State Government is in  a better  position  to judge the needs and exigencies  of  the State  and  the Court will not lightly  interfere  with  the decision of the State Government.  If at any time,  however, the  State  Government classifies offences  arbitrarily  and not on any reasonable basis having a relation to the  object of the Act, its action will be either an abuse of its  power if  it is purposeful, or in excess of its powers even if  it is  done  in good faith, and in either  case  the  resulting discrimination will encounter the challenge of the Constitu- tion  and the Court will strike down, not the law  which  is good, but the abuse or misuse or the unconstitutional admin- istration  of the law creating or resulting  in  unconstitu- tional  discrimination.   In this case, however,  the  facts stated in the affidavit filed on behalf of the State make it abundantly 475 clear  that the situation in certain parts of the State  was sufficient to add a particularly sinister quality to certain specified  offences  committed within those  parts  and  the State  Government legitimately grouped them together in  the notification.  The criticism that the State  Government  in- cluded  certain  offences but excluded certain  cognate  of- fences has been dealt with by my learned  brother  Mukherjea and I have nothing more to add thereto.      In my opinion, lot reasons given in my judgment in  the West  Bengal case and referred to above, section 11  of  the Saurashtra  Ordinance in so far as it authorises  the  State Government  to  direct offences or classes  of  offences  or classes  of cases to be tried by the Special Court does  not offend against the equal protection clause of our  Constitu- tion  and the notification which has been issued under  that part  of the section cannot be held to be invalid  or  ultra vires.     On  the question of delegation of legislative power  the matter appears to be concluded by the decision of the  Privy Council in Benoarilal’s case(1) and the section may well  be regarded  as an instance of conditional  legislation.   Fur- ther,  I would be prepared to say, for reasons stated in  my judgment in the President’s Reference(2) that there has been no illegal delegation of legislative power.     For  reasons stated above, I agree that the  preliminary point  should be rejected and the appeal should be heard  on its merits.     CHANDRASEKHARA  AIYAR  J.--Mr.  Sen tried  his  best  to distinguish  this case from our decision on the West  Bengal Special Courts Act, 1950, The State of West Bengal v. Anwari Ali  Sarkar  and Gajan Mali (3). But in my view he  has  not succeeded in his attempt.      Sections  9 and 11 of the Ordinance in question do  not lay down any classification in themselves.  The preamble  to the earlier Ordinance of 1948, which is still intact as  the later one is only an amending  (1)  L.R.  72 I.A. 57.  (3) Cases Nos. 297 & 298  of  1951. Since  (2) [1951] S.C.R. 747.  reported as [1952] S.C.R. 284. 476 measure,  merely  refers to the need to provide  for  public safety, maintenance of public order, and the preservation of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 28  

peace and tranquillity in the State of Saurashtra.  This  by itself  indicates  no  classification, as the  object  is  a general one, which has to be kept in view by every  enlight- ened  government  or system of  administration.   Every  law dealing  with the commission and the punishment of  offences is  based  on this need. The notification  under  which  the Special Court was established no doubt deals with "offences" as distinguished from "cases" or "groups of cases," but here also, there is no rational classification. Offences present- ing  the same characteristic features, and cognate  in  this sense, have been separately dealt with; some of them are  to go  before  the Special Court, while others are left  to  be tried  by  the ordinary courts. The  circumstance  that  the deviations from normal procedure prescribed in the Ordinance are not so many or vital, as in the Bengal case, does not in nay humble opinion, affect the result, as the defect of  the absence of a reasonable or rational classification is  still there. The negation of committal proceedings is a matter  of much  moment to the accused, as it deprives him of  the  un- doubted  advantage of knowing the evidence for the  prosecu- tion  and  discrediting  it  by  cross-examination,  leading possibly to his discharge even at that early stage.       The argument for the respondent that there has been no discrimination  as  against  the appellant  visa  vis  other persons  charged  with the same  offences  is  unacceptable. Cognate offences have been left over for trial by the  ordi- nary courts.  It is no answer to the charge by A of discrim- inatory legislation to say that B & C have also been  placed in the same category as himself, when he finds that D, E & F also liable for the same or kindred offences have been  left untouched  and are to be tried by ordinary courts under  the normal procedure. Much importance cannot be attached to  the affidavit  of the Assistant Secretary to the Government.  It may  be  that  all the facts stated by him  as  regards  the frequency and locale of the particular 477 offences are true.  But no such grounds for the  classifica- tion are indicated, much less stated, either in the impugned Ordinance  or notification.  This is certainly not  a  legal requirement; but a wise prudence suggests the need for  such incorporation, as otherwise the ascertainment of the reasons for  the classification from extraneous sources may  involve the consideration of what may be regarded as  after-thoughts by way of explanation or justification.      In  my. view, the West Bengal Special Courts Act  deci- sion governs this case also, and section 11 is bad.    It is unnecessary to deal with the other point raised by the learned counsel for the appellants as regards the  dele- gation  of  legislative  powers involved in  the  pro  tanto repeal  of some of the provisions of the Criminal  Procedure Code,  viz., sections 5 and 28 and the Schedule,  especially as  it seems concluded against him by the decision  in  King Emperor v. Benoari Lal Sarma and Others(1).      The  convictions  of the appellant  and  the  sentences imposed  on him are set aside, and there will be  a  retrial under the ordinary procedure.     Boss  J.--I agree with my brothers Mahajan and  Chandra- sekhara Aiyar that the Saurashtra State Public Safety  Meas- ures (Third Amendment) Ordinance,    offends article 14.  As I explained in my judgment in The State of  West  Bengal  v. Artwar  Ali Sarkar(2), I prefer not to base my  decision  on the  classification test.  For the reasons given there I  am of  opinion  that the differentiation here  travels  beyond. bounds  which  are  legitimate.  It is true  the  points  of differentiation  are  not as numerous here as in  the  other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 28  

case  but  the ones which remain are, in my judgment,  of  a substantial  character  and cut deep enough to  attract  the equality clauses in article 14.  I would hold the  Ordinance invalid. Preliminary objection overruled. Agent for the respondent: P.A. Mehta. (1) (1945) 72 I.A. 57.              (2) [1952] S.C.R. 284. 62 478